United States Supreme Court Issues An Important Ruling On Drunk Driving

Justice Alito announced the judgment of the Court in Mitchell v. Wisconsin and delivered an opinion joined by the Chief Justice and Justices Breyer and Kavanaugh. Justice Thomas concurred in the judgment. Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg and Kagan. Justice Gorsuch also filed a dissenting opinion.

So what does it say? It is a bit confusing, but it appears that if you are drunk and passed out that is an exigent circumstance and there is not a need for a search warrant. The plurality of justices did not address whether if you are not passed out but tell the officer you don’t want to take a test whether that too is an exigent circumstance.

Algorithms in the Courtroom

Kia Rahnama has posted Science and Ethics of Algorithms in the Courtroom (Journal of Law, Technology and Policy, Vol. 2019, No. 1, 2019) on SSRN. Here is the abstract:

This Article analyzes the societal and cultural impacts of greater reliance on the use of algorithms in the courtroom. Big-data analytics and algorithms are beginning to play a large role in influencing judges’ sentencing and criminal enforcement decisions. This Article addresses this shift toward greater acceptance of algorithms as models for risk-assessment and criminal forecasting within the context of moral and social movements that have shaped the American justice system’s current approach to punishment and rehabilitation. By reviewing salient problems of scientific uncertainty that accompany the use of these models and algorithms, the Article calls into question the proposition that greater reliance on algorithms in the courtroom can lead to a more objective and fair criminal sentencing regime.

Far from liberating the society from the biases and prejudices that might pollute judges’ decision-making process, these tools can intensify, while simultaneously concealing, entrenched cultural biases that preexist in the society. Using common themes from the field of Science and Technology Studies (STS), including boundary-work analysis and Public Understanding of Science (PUS), this Article highlights unique technical characteristics of big-data analytics and algorithms that feed into undesirable and deeply-held values and beliefs. This Article draws attention to specific gaps in technical understanding of algorithmic thinking, such as the black box of algorithms, that can have discordant impact on communicating uncertainty to the populace and reduce accountability and transparency in regulating the use of algorithms. This Article also provides specific policy proposals that can ameliorate the adverse social and cultural effects of incorporating algorithms into the courtroom. The discussion of policy proposals borrows from the STS literature on public participation in science and encourages adoption of a policy that incorporates diverse voices from political actors, most affected communities, and the offenders themselves.

Should Judges Be More Cautious About Revocation of Probation

The law is clear that prior to revoking probation, a judge has to analyze what the appropriate alternative is. It is not always an easy analysis. Several years ago I had a contested revocation hearing. The defendant was a long time crack addict. He had been clean for nearly a year and  had become employed for substantially all of that year. He liked his job and his employer liked him. And then he tested positive for marijuana. His probation officer wanted to send him to prison. I asked the probation officer, “Not to excuse the weed smoking, but with these facts do you see the defendant as making progress or being a failure?” The probation officer unhesitatingly said, “He is a failure.” I replied that I saw the defendant as making progress.  Dealing with chemically dependency is not easy because relapse is a prevalent part of the disease.

Governing Magazine reports that, “Probation and parole were designed as alternatives to time in prison, but they often end up having the opposite effect.Nationwide, 45 percent of admissions to state prisons are the result of probation or parole violations. Sometimes these violations are serious, but most involve technicalities, such as botched paperwork, curfew violations or missing a drug test, according to a report released Tuesday by the Council of State Governments (CSG) Justice Center.

“Many states have made recidivism reduction a public safety priority,” says Megan Quattlebaum, the center’s director, “but the harsh reality is that supervision fails nearly as often as it succeeds.”

States spend $9.3 billion a year incarcerating people for parole or probation violations, according to CSG. About a third of that, $2.8 billion, is spent locking people up for technical violations. That doesn’t include the cost of housing inmates in local jails.

Although it has long been clear that parole and probation violations account for a substantial share of prison admissions, the CSG report is the first effort to collect information from all 50 states.

“We’ve had data on individual states but never a complete national picture,” says Adam Gelb, founder and director of the Council on Criminal Justice, a nonprofit group.

Many states have changed their sentencing laws and reentry programs to cut down on prison recidivism over the past decade, but the incarceration of parole and probation violators is just starting to draw wider attention.

“This has been the dirty little secret of the system for decades,” Gelb says. “It’s a huge driver of prison populations and costs.”

See also,

Criminal Justice Reform Paves the Way for Welfare Reform

On Felons’ Rights,

2 States Take 2 Different Directions,

For Some, ‘Ban-the-Box’ Laws Are Making It Harder to Get a Job,

The Changing Relationship Between Ex-Criminals and Their Parole Officers,

To Work on Parole Boards, No Experience Necessary

Dual Sovereignty Is Here To Stay

From The Sentencing Law & Policy Blog:

Unsurprisingly, the Supreme Court has decided not to overturn its longstanding “dual sovereignty” doctrine in the case of Gamble v. US, No. 17-646 (S. Ct. June 17, 2019) (available here). Here is how the Court’s majority opinion, authored by Justice Alito, gets started:

We consider in this case whether to overrule a longstanding interpretation of the Double Jeopardy Clause of the Fifth Amendment. That Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Our double jeopardy case law is complex, but at its core, the Clause means that those acquitted or convicted of a particular “offence” cannot be tried a second time for the same “offence.” But what does the Clause mean by an “offence”?

We have long held that a crime under one sovereign’s laws is not “the same offence” as a crime under the laws of another sovereign. Under this “dual-sovereignty” doctrine, a State may prosecute a defendant under state law even if the Federal Government has prosecuted him for the same conduct under a federal statute.

Or the reverse may happen, as it did here. Terance Gamble, convicted by Alabama for possessing a firearm as a felon, now faces prosecution by the United States under its own felon-in-possession law. Attacking this second prosecution on double jeopardy grounds, Gamble asks us to overrule the dual-sovereignty doctrine. He contends that it departs from the founding-era understanding of the right enshrined by the Double Jeopardy Clause. But the historical evidence assembled by Gamble is feeble; pointing the other way are the Clause’s text, other historical evidence, and 170 years of precedent. Today we affirm that precedent, and with it the decision below.

Notably, Justice Thomas pens an extended concurrence in Gamble, but does so “to address the proper role of the doctrine of stare decisis.” Thereafter, Justice Ginsburg authors a lengthy dissent, and Justice Gorsuch authors an even longer dissent. I hope to have more to say about all these opinions in the days to come, but the close of Justice Gorsuch’s dissent seem immediately blogworthy:

Enforcing the Constitution always bears its costs. But when the people adopted the Constitution and its Bill of Rights, they thought the liberties promised there worth the costs. It is not for this Court to reassess this judgment to make the prosecutor’s job easier. Nor is there any doubt that the benefits the framers saw in prohibiting double prosecutions remain real, and maybe more vital than ever, today. When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result, it is “the poor and the weak,” and the unpopular and controversial, who suffer first — and there is nothing to stop them from being the last. The separate sovereigns exception was wrong when it was invented, and it remains wrong today.

Washington State Supreme Court Rules You Cannot Discriminate Against Gay People

From the Constitutional Law professor Blog,

By Ruthann Robson

In its unanimous opinion in State of Washington v. Arlene’s Flowers, the Washington Supreme Court concluded there was no First Amendment infringement when the state found Arlene’s Flowers violated the Washington Law Against Discrimination (WLAD), by refusing to sell wedding flowers to a same-sex couple.

Recall that in June 2018, the United States Supreme Court without opinion, in Arlene’s Flowers v. Washington, granted the petition for writ of certiorari, vacated the judgment of the Washington Supreme Court, and remanded the case for consideration in light of its decision earlier than month in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n. Given the holding in Masterpiece Cakeshop that the Colorado Civil Rights Commission, or one specific commissioner, exhibited “hostility” to the cakemaker in that case, the Washington Supreme Court was now tasked with determining whether there was a similar hostility towards the religion of the florist in Arlene’s Flowers, Baronnelle Stutzman, and if so, applying strict scrutiny.

The Washington Supreme Court, on page 2 of its 76 page opinion, proclaimed: “We now hold that the answer to the Supreme Court’s question is no; the adjudicatory bodies that considered this case did not act with religious animus when they ruled that the florist and her corporation violated the Washington Law Against Discrimination . . . .”

The Washington Supreme Court’s lengthy opinion admittedly includes passages from its 2017 opinion which thoroughly discussed and applied the First Amendment standards, but it also carefully delves into the question of government hostility toward religion.  The court found irrelevant one contested incident involving the Attorney General of Washington which occurred after the Washington Supreme Court’s 2017 opinion, noting that the issue was one of adjudicatory animus and not executive branch animus; any claim that there was selective prosecution lacked merit. The Washington Supreme Court also rejected Stutzman’s claim that the scope of the injunction in the 2017 opinion mandated that Stutzman “personally attend and participate in same-sex weddings.”

The Washington Supreme Court’s opinion concludes that “After careful review on remand, we are confident that the courts resolved this dispute with tolerance, and we therefore find no reason to change our original judgment in light of Masterpiece Cakeshop. We again affirm the trial court’s rulings.”

It is a solid well-reasoned unanimous opinion, but given this hard-fought and well-financed litigation, it’s likely that Arlene’s Flowers will again petition the United States Supreme Court for certiorari.

Keeping Up On Forensic Science


“The cops collected DNA from a cup he discarded. The first murder case based on forensic genealogy went to trial Tuesday. Prosecutors in Snohomish County, Washington, say they can prove beyond a reasonable doubt through nascent forensic science that William Earl Talbott II is guilty of murdering two people in 1987. And they concede they never would have found their suspect without genetic genealogy. No one knows which legal precedents about the use of such testing will last, or fade, beyond the trial.”

Thinking About the Ability to Pay

Judith ResnikAnna VanCleaveAlexandra HarringtonLisa FosterJeffrey SelbinFaith BarksdaleAlexandra EynonStephanie Garlock and Daniel Phillips (Yale University – Law School, Yale University – Law School, Yale University – Law School, Fines & Fees Justice Center, University of California, Berkeley – School of Law, Yale University, Law School, Students, Yale University, Law School, Students, Yale University, Law School, Students and Yale University, Law School, Students) have posted Ability to Pay on SSRN. Here is the abstract:

Ability to Pay is the second Liman Center publication focused on the burdens that individuals with limited income and wealth face in courts. An impressive body of emerging literature maps the needs of low-income individuals in courts as civil litigants and as criminal defendants and identifies the harms of court-imposed debt. As these materials reflect, legal and political will has begun to put reforms into place that limit the ways in which courts impose financial obligations.

Part I, Challenging, Restructuring, and Abolishing Fee Structures, provides examples of the many lawsuits, as of the spring of 2019, that have challenged fees, fines, forfeiture, bail charges, and driver’s license suspensions. The litigation interacts with legislative revisions, also excerpted, and, in some jurisdictions, abolition of certain court fees and money bail.

Part II, Data Collection and Creation, offers an innovative overview of the kinds of data that state and federal court systems collect to understand how courts gain or lack information about the needs of participants in the legal system.

This segment explores the current metrics used and the ways to “measure” what counts as justice. Given the growth of online technologies and the outsourcing of court filing systems to private providers, new questions have emerged about the need to have accessible and sufficient data, the concerns about individual privacy, and the problem of accountability.

Part III, Innovations and Interventions: A Sampling of New Research Projects, provides a window into the breadth of activities across the country, as law schools have become research hubs taking on a host of issues related to court users. Again, we are not comprehensive but illustrative when we explore the ways in which research agendas are formulated, their impacts measured, and their effectiveness appraised.

Part IV, Law Schools, Funders, and Institutionalizing Reform, reflects on the many times in which law schools have reinvented what counts as the “standard” curriculum. In the 1960s, foundation support brought clinical education to many law schools, and, since then, clinical education has become a fixture. In the 1980s, funding went to law and economics, which has likewise become a familiar marker in legal education.

Ability to Pay makes plain that another reordering is underway. Law schools are committing to teaching and generating new data on courts and their users and to engaging students through coursework and research in how courts operate and impact communities. In short, just as clinical education and law and economics are now ensconced in the curriculum, the economics of court services is likewise becoming a routine part of legal education.

Judicial Independence

From the Brennan Center:

Former Florida Supreme Court Justice Calls for Reforms to Balance Judicial Accountability and Independence
Former Florida Supreme Court Justice Barbara J. Pariente co-authored an article with Melanie Kalmanson analyzing recent efforts to remove state judges following a judicial decision, and recommending potential reforms to appropriately balance judicial accountability and independence.
Pariente and Kalmanson highlight efforts to oust justices due to lawful judicial decisions, including striking down a state ban on same-sex marriage as unconstitutional, as threats to judicial independence. These campaigns, Pariente and Kalmanson said, are often funded by opaque special interest groups and endanger “the role of the judiciary in our democracy.” Moreover, “[j]urists should not perceive a potential threat to their position if they rule in a way that is unpopular, or out of step with public opinion, special interests, or the other political branches.”
Instead of “campaigns to remove judges who render [unpopular] decisions,” Pariente and Kalmanson recommend “ensuring compliance with codes of judicial conduct and imposing consequences for misconduct” through the state’s judicial qualifications committee. They also recommend charging independent nonpartisan judicial evaluation commissions “with periodically evaluating each judge on the basis of objective, appropriate criteria, such as … integrity, professional competence, judicial temperament, experience, and service.” Pariente and Kalmanson further suggest considering “the elimination of merit-retention elections in favor of one lengthy term.”

Plea Bargaining

William Ortman (Wayne State University School of Law) has posted When Plea Bargaining Became Normal (Boston University Law Review, Vol. 100, 2020, Forthcoming) on SSRN. Here is the abstract:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice.

The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

After Judge’s Arrest, Massachusetts Prosecutors Sue to Stop Courthouse Arrests of Immigrants

From Governing Magazine By Steph Solis:

Days after a judge and court officer were arrested on charges they helped a man evade immigration authorities, advocates are filing a lawsuit against Immigration and Customs Enforcement’s practice of arresting people at local courthouses.

The Middlesex County District Attorney’s Office announced a group of prosecutors, public defenders and community groups plan to file a lawsuit on Monday over courthouses arrests, arguing the arrests deter victims and witnesses from cooperating with law enforcement on local criminal cases.

“Prosecutors are forced to abandon cases because many victims and witnesses are deterred from appearing in court. The policy also makes it more difficult to obtain defendants’ appearance[s] in court,” District Attorney Marian Ryan wrote in a joint statement with Suffolk County District Attorney Rachael Rollins.

District Attorney Rachael Rollins told her staff to notify her office if they see immigration agents arresting or questioning people inside courthouses, but what happens after?

Lawyers for Civil Rights Director Ivan Espinoza-Madrigal, Committee for Public Counsel Services’ Immigration Impact Unit Director Wendy Wayne and Chelsea Collaborative Executive Director Gladys Vega also signed onto the joint statement.

An announcement will be made about the lawsuit at 11 a.m. Monday at Goodwin Procter’s Boston office.

Public defenders, local prosecutors and immigrant activists began voicing concerns about ICE agents making arrests at local courthouses after President Donald Trump took office. Thomas D. Homan, then acting director of ICE, issued a directive in January 2018 stating that courthouses are fair game for immigration enforcement, unlike schools, churches and hospitals, which are considered “sensitive locations” under ICE policy.