From the How Appealing blog

“Baker nominates Kimberly Budd as chief justice”: Matt Stout of The Boston Globe has an article that begins, “Governor Charlie Baker on Wednesday nominated Kimberly S. Budd to be chief justice of the Supreme Judicial Court, putting her in line to become the first Black woman to lead the state’s highest court in its 328-year history.”

Steph Solis of The Republican of Springfield, Massachusetts reports that “Massachusetts Gov. Charlie Baker seeks to elevate Judge Kimberly Budd to chief justice of the Supreme Judicial Court.”

And in commentary, online at The Boston Globe, Shirley Leung has an essay titled “Kimberly Budd is the right choice to be chief justice of the Supreme Judicial Court; She is beyond qualified, and Governor Baker was wise to look past another candidate’s political connections.”

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Just like COVID-19 which has demonstrated that no matter where you live the pandemic will find you what is on the horrizon is a massive fiscal crisis. Court budgets will be cut but so too might be the things that drive the effectiveness of the justice system. Public defender offices, guardian ad litem programs corrections services don’t have natural constituencies to advocate for funding. That is unless the judiciary views our role as an advocate.

Wall Street Journal: “Nationwide, the U.S. state budget shortfall from 2020 through 2022 could amount to about $434 billion, according to data from Moody’s Analytics, the economic analysis arm of Moody’s Corp. The estimates assume no additional fiscal stimulus from Washington, further coronavirus-fueled restrictions on business and travel, and extra costs for Medicaid amid high unemployment.”

“That’s greater than the 2019 K-12 education budget for every state combined, or more than twice the amount spent that year on state roads and other transportation infrastructure.”

“Deficits have already prompted tax hikes and cuts to education, corrections and parks. State workers are being laid off and are taking pay cuts, and the retirement benefits for police, firefighters, teachers and other government workers are under more pressure.”

There are those who firmly believe there is nothing wrong with the United States Supreme Court. For those who applaud the appointment of Justice Barrett they very likely see nothing to fix. But there are others who are troubled. So what should we do about the United States Supreme Court?

From the blog How Appealing:

“How to Fix the Supreme Court”: The New York Times has posted online a series of seven essays along with an introduction from Emily Bazelon titled “How We Got Here.”

Law professor Kent Greenfield has an essay titled “Create a New Court.”

Law professor Steven G. Calabresi has an essay titled “Give Justices Term Limits.”

Melody Wang has an essay titled “Don’t Let the Court Choose Its Cases.”

Law professor Aaron Tang has an essay titled “(Threaten) to Pack the Courts.”

Larry Kramer has an essay titled “Pack the Courts.”

Law professor Leah Litman has an essay titled “Expand the Lower Courts.”

And law professor Randy Barnett has an essay titled “Keep the Courts the Same.”

There was a now retired prosecutor who over his career developed the reputation that is goal in life was not revoke or suspend every diver in Minnesota’s license. And so it was with interest that I came across this article. William Crozier, Brandon L. Garrett and Karima Modjadidi (Duke University School of Law, Duke University School of Law and Duke University School of Law) have posted Understanding the Impact of Driver’s License Suspension: Lay Opinion in Impacted and Non-Impacted Populations on SSRN. Here is the abstract: The impact of low-level criminal enforcement on communities has been the subject of a growing body of scholarship and policy work, and awareness that even in petty cases, fines can impose unaffordable criminal debt affecting other important rights. Many jurisdictions suspend driving privileges for nonpayment of traffic fines or court nonappearance without linking to ability to pay, particularly in the United States where millions are impacted. To investigate the impact of such suspensions, we surveyed people in North Carolina (N=853), a state with large numbers of such suspensions. 18% of respondents have or have had a suspended license and we find both race and income predict suspension. We also find that such a suspension imposes difficulty on a variety of daily activities and reduces the ability to pay for housing. Thus, we find these suspension policies offer little benefit but impose great hardship for low-level offenses. The most straightforward policy change is to abolish suspension policies for non-safety reasons, as some states have done. However, other options exist – such as capping the length of suspensions, or the number of cumulative times a license can be suspended. Restoration efforts for those affected should be undertaken as well, but present unique challenges in contacting those affected and providing procedures to get their license back. Specifically, contacting suspended drivers is difficult because on-file addresses may not be current, and people who are suspended may be hesitant or unable to solve legal matters, such as failing to appear for court. As such, comprehensive local-level efforts, which we describe, are likely necessary to address the challenges and harms of driver’s license suspensions.

Should there be a green light for “Red Flag” laws? The late Chief Justice Warren E. Burger said, in 1991, that the idea that the Second Amendment conferred a right for individuals to bear arms was “a fraud on the American public.”  But then in 2008, the United States Supreme Court, in a 5-4 decision written by Justice Antonin Scalia’s  in District of Columbia v. Heller, rewrote its understanding of the Second Amendment, and concluded that the Framers of the Constitution had, after all, intended the Amendment to confer an individual right to bear arms. 

Fast forward to today and there are those that forget how close the Heller decision was or that Scallia himself wrote in that opinion that of course there were exceptions to this individual right among those felons. So how should judges in the tenches  implement “extreme risk protection orders?” Designed to get guns out of the hands of mentally ill people or those who pose a danger to themselves or others, the authors of this interesting law review article argue that these new laws do not violate due process rights. VIRGINIA LAW REVIEW

Are you frustrated with the habitual reoffending of people committing livability crimes? We try a lot of things that frequently don’t work. In Minneapolis the fare jumpers on the light rail are issued trespass orders prohibiting them from riding the light rail. But we never issue trespass orders to the habitual speeder or drug drivers banning them from the highways. So maybe we need to think outside the box.

“What If Nothing Works? On Crime Licenses, Recidivism, and Quality of Life”

The title of this post is the title of this interesting new piece authored by Josh Bowers available via SSRN.  Here is its abstract:

We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly.  In this article, I question that assumption and propose a radical alternative.  Consider the individual punished repeatedly for hopping subway turnstiles.  As convictions accumulate, sentences rise — to weeks and ultimately months in jail.  At some point, criminality comes to signal something other than the need for punishment.  It signals the presence of need.  Perhaps, the recidivist was compelled by economic or social circumstances.  Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one.  No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences.  My claim is that, in these circumstances, it would be better to just stop punishing.

To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists.  But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution.  My goals are at once narrow and broad.  I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police.  I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally.  I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings.  I endorse “harm reduction,” the governance philosophy that grounds those reforms.  And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.

The vast majority of prosecutors are highly ethical. But how should a judge deal with arguments that go over the line. Mary Bowman (Seattle University School of Law) has posted Confronting Racist Prosecutorial Rhetoric at Trial (Case Western Reserve Law Review, Forthcoming) on SSRN.

Here is the abstract: Racist prosecutorial rhetoric is an oft-overlooked component of structural racism within the criminal justice system. Social psychology and neuroscience research explain how racist rhetoric affects decision-making, as well as how to avoid biased decision-making. But current law tolerates and even encourages prosecutors to use racist rhetoric to ensure convictions. This article educates judges, prosecutors, and other scholars about how to recognize racist prosecutorial rhetoric, how to prevent it in most cases, and how to effectively deal with it when it occurs.

Specifically, it focuses on trial courts for solutions, providing them with a checklist of how to draw lines between proper and improper argument. It recommends prohibiting many common rhetorical choices prosecutors use, such as animal imagery and us/them arguments. It also recommends requiring prosecutors to file a motion in limine to justify proposed references to race in individual cases; courts should only allow these references when their probative value significantly outweighs the potential prejudicial effect. The article also contains strategies for effectively preventing biased decision-making when prosecutors use racist rhetoric and a method for tracking repeat violators for more systemic solutions. These solutions would help ensure fair trials and contribute to the racial reckoning in the criminal justice system.

Anna VanCleave, Brian Highsmith, Judith Resnik, Jeffrey Selbin, Lisa Foster, Hannah Duncan, Stephanie Garlock and Molly Petchenik (Yale University – Law School, Arthur Liman Center for Public Interest Law, Yale University – Law School, University of California, Berkeley – School of Law, Fines & Fees Justice Center, Yale University – Law School, Yale University, Law School and Yale University, Law School) have posted Money and Punishment, Circa 2020on SSRN.

Here is the abstract: Money has a long history of being used as punishment, and punishment has a long history of being used discriminatorily and violently against communities of color. This volume surveys the literature on the many misuses of money as punishment and the range of efforts underway to undo the webs of fines, fees, assessments, charges, and surcharges that have been used as sources of funds for governments at all levels. Whether in domains that are denominated “civil,” “criminal,” or “administrative,” and whether the needs are about law, health care, employment, housing, education, or safety services, racism intersects with the criminalization of poverty in all of life’s sectors to impose harms felt disproportionately by people of color.

These materials are lengthy because of the proliferation of research on this subject, as well as the need to bridge legal and public finance analyses. The first segment, using “Ferguson as a Frame,” reflects the impact of the killings of Michael Brown in Ferguson in 2014 and of George Floyd in Minneapolis in 2020, as well as the mass protest movement underway related to those events. Documentation from policing, prosecution, detention, and probation to prisons is plentifulthat these systems exemplify the over-control of individuals and communities of color and the under-control of state violence. Local groups in Missouri have released analyses of the events and, in 2015, the U.S. Department of Justice issued a report detailing how the police, courts, and elected officials in the City of Ferguson, Missouri, chose to exploit low-income people of color by discriminatorily imposing fines and fees to fund the city’s budget. Commentators analyze what “Ferguson” does, should, or could mean. The excerpts address what has, and has not, changed since 2015 at local, state, and national levels. The need for money (sought by governments and spent by governments and private actors)is the justification for a wide array of fees and assessments. As these authors explain, the desire to punish through money has produced a welter of fines and economic penalties.

The second segment, Funding Government: Fiscal Incentives, Inequalities, Reform, and Abolition, reflects the importance of understanding public finance systems and tax mechanisms to learn how to alter structures of government funding to reduce or eliminate monetary sanctions. The questions are why and how government funds are collected and allocated, and the impact of various modes of financing. Researchers have documented how certain funding mechanisms produce and reinforce inequality, and have honed in on the effects of funding government services through fines and fees in state and local public finance systems. The readings consider the decision-making and the politics that drive assessments. Knowing these incentives is requisite to changing them, and throughout this volume, commentators examine means to stop pernicious fiscal policymaking.

The third segment, The Practices, Law, and Harms of Tying Monetary Assessments to Law Enforcement Systems, includes readings about the history of criminal legal obligations, their impacts on individuals and families, how the harms track race and class, and what changes could make dents in the systems of unfairness. Excerpted essays explore government funding mechanisms and examine the formal distinctions among categories labeled “tax,” “fine,” and “fee,” their functional overlaps, and their effects. Other materials address aspects of constitutional and state and municipal law that frame some of the discussion and litigation. As recounted, concerns about “excessive” economic burdens imposed by governments have a long history. In the English-United States legal system, governments are forbidden from levying “excessive fines” and from imposing “cruel and unusual punishments,” as well as required to respect life, liberty, and property. Since the 1980s, governments cannot turn monetary obligations into incarceration. While some commentators and jurists call for these constitutional rights to stop systems of punishment that “ruin” individuals, these provisions have not yet been read to end the racial and economic oppression of legal assessments. Indeed, through the post-Civil War Black Codes, convict leasing, and peonage systems, and with expansion of criminal systems in recent decades and charges of “pay to stay” in jails and prisons, inequalities abound and “ruin” has resulted. In addition, several commentators address jurisdiction-specific harms and make proposals for change. Excerpted are a series of case studies, analyses of race as a key variable, and arguments for how and why to revise, reform, and transform the use of money in conjunction with courts.

The final set of edited readings, In the Courts and Legislatures, Circa 2020, and Shadowed by COVID-19, provide a partial account of the many lawsuits and legislative initiatives between 2018 and 2020, including recent months when COVID-19 came to dominate the world. As the judicial opinions reflect, some federal appellate courts are proffering limited readings of the 1980s precedents and narrowing the scope of constitutional protection for the intersection of poverty and of the “use” (voluntary or not) of courts.

This volume is the fourth in a series of co-edited, interrelated monographs focused on money as sanctions. In 2018, the volume Who Pays? Fines, Fees, Bail, and the Cost of Courts mapped the many modes by which localities tie their work to funds obtained from individuals, disproportionately poor and of color, who make payments as part of the law enforcement system. In 2019, we published Ability to Pay, which both updated research and the case law on monetary sanctions and detailed some of the many efforts based at law schools to interrupt the pernicious systems and to bring into the curriculum knowledge about and work on revising corrosive practices. A third volume, Fees, Fines, and the Funding of Public Services: A Curriculum for Reform, published in 2020, provides a primer on these issues to bridge the work in the fields of public finance, state and local governance, and tax policy with legal materials focused on monetary sanctions.

This volume was co-edited by Anna VanCleave, Brian Highsmith, Judith Resnik, Lisa Foster, Jeff Selbin, Molly Petchenik, Hannah Duncan, and Stephanie Garlock.

Perhaps you need to be from Vermont but in case you are not deer jacking is a game violation. ScotusBlog discusses Justice Gorsuch’s statement in Bovat v. Vermont, joined by Justices Sotomayor and Kagan, in which Justice Gorsuch “expressed surprise” that the court below had not considered Florida v. Jardines. The case involves the police practice of the “knock and talk,” in which officers show up at a person’s home and seek to gain entry– and the right to search– through the occupant’s consent. U.S. SUPREME COURT

The dissent includes a picture so that readers can better visualize the police activity which gets verbally described this way:

Suspecting Clyde Bovat of unlawfully hunting a deer at night (Vermont calls it a “deer jacking”), game wardens decided to pay him a visit to — in their words — “investigate further.”  But the wardens admit that “pretty soon after arriving” they focused on a window in Mr. Bovat’s detached garage.  Heading there and peering inside, the wardens spotted what they thought could be deer hair on the tailgate of a parked truck.

From the Scotus Blog:
“The Fourth Amendment generally requires police officers to get a warrant before entering a home. The Supreme Court has recognized an exception to that rule for emergencies, such as when the police are in hot pursuit of a suspect. In Lange v. California, the justices agreed to decide whether that exception applies when police are pursuing a suspect whom they believe committed a misdemeanor.

The question comes to the court in the case of Arthur Lange, a northern California man whom a California highway patrol officer followed to his home because he believed that Lange had violated state traffic laws by listening to loud music and honking his horn a few times. After Lange pulled into his garage, the officer – who had turned on his overhead lights but did not use his siren as Lange approached his house – entered the garage by putting his foot under the garage door to block it from closing. When he spoke to Lange, the officer said that he could smell alcohol on his breath, and Lange was charged with driving under the influence.

At his trial, Lange argued that the officer’s entry into his garage without a warrant violated the Fourth Amendment, so that the evidence obtained in the garage should be thrown out. The trial court rejected that argument, and a state appeals court affirmed that ruling and, eventually, his conviction. The California Court of Appeal also upheld his conviction, rebuffing Lange’s contention that the exception to the warrant requirement for a “hot pursuit” of a suspect should apply only in genuine emergencies, rather than when the police are investigating minor offenses. Instead, the court of appeal concluded, the warrantless entry did not violate the Constitution because the officer was in hot pursuit of Lange, whom he had probable cause to arrest for a misdemeanor.

Lange went to the Supreme Court, asking the justices to review the state court’s decision. The lower courts are “sharply divided” on the question of whether pursuits for misdemeanors justify a warrantless entry, Lange told the justices. And the California court’s rule, he added, would allow “officers investigating trivial offenses to invade the privacy of all occupants of a home even when no emergency prevents them from seeking a warrant.”

California agreed with Lange that the federal and state courts have reached different conclusions on the Fourth Amendment question presented by his case, but it told the justices that Lange’s case is not an appropriate one in which to reach that question because Lange’s DUI conviction should stand regardless of the outcome of this proceeding. But, the state continued, if the court were to grant review, California agrees with Lange that pursuits for misdemeanors do not always justify a warrantless entry; instead, the state suggested, courts should use a case-by-case approach to determine whether there is a genuine emergency.

The case will likely be scheduled for argument in February 2021 or later.”