An effective trial court judge who handles criminal cases can benefit from risk assessment tools……as long as you understand them.Jessica Eaglin (Indiana University Maurer School of Law) has posted The Perils of ‘Old’ and ‘New’ in Sentencing Reform(NYU Annual Survey of American Law, Forthcoming) on SSRN. Here is the abstract: The introduction of actuarial risk assessment tools into the sentencing process is a controversial, but popular trend in the states. While tools’ proliferation is debated from numerous angles, scholarship tends to emphasize why this reform is new or old, and focus on whether and how this trend may improve or undermine sentencing law and policy. This Essay suggests that the institutionalization of actuarial risk assessments into the sentencing process in response to social and political critiques of criminal administration is both a new and old idea. It situates the proliferation of actuarial risk assessments in the context of technical guidelines created to structure and regulate judicial sentencing discretion in the 1980s and beyond. It then examines debates about two conceptual issues – selective incapacitation and equality – to highlight that technical sentencing reforms raise recurring questions at sentencing, even as social perspectives on resolving those questions are shifting. Rather than using the “old” nature of these issues as evidence that actuarial risk assessments should proliferate, however, this Essay urges critical reflection on the turn toward the technical in the present day, in the face of mass incarceration. It urges scholars to dispense of the “old” and “new” concept when reflecting on whether and why actuarial risk assessments are proliferating in the states. It also encourages scholars to draw on the expansive methodological approaches applied to study of sentencing guidelines when considering this reform going forward.

Should we have partisanship in the leadership of State courts? There are some states that have identified partisan labels on their Supreme Courts and then there are states that the partisan affiliation is the worst kept secret in the state. So who gets to decide what the rules should be for each state? There is a circuit split on an issue central to the merits question in this case, whether judges are “policymakers.” The Third Circuit said no, but the Second, Sixth, and Seventh Circuits (and, according to the state, “every other court to address the issue”) has said yes. Under Court precedent, if judges are “policymakers,” then the state can use their political affiliation as a qualification without violating the First Amendment. If they are not, then the state must show that its use of political affiliation is necessary to achieve a compelling government interest. This is a high standard, but one that the state argues, in the alternative, that it can satisfy. If the Court reaches the central merits question in this case, it may resolve the circuit split and determine whether judges are “policymakers” that fall under this exception to the First Amendment. Robert Barnes of The Washington Post has an article headlined “Fittingly, Supreme Court term starts with test of political affiliations for judges.”  Delaware has decided that partisan balance on that state’s Supreme Court is essential to maintaining public trust. But can a state do that?It will likely be months before we know. Thanks to How Appealing a blog by Howard Bashman  you can  access via this link the audio and transcript of the U.S. Supreme Court oral argument in Carney v. Adams, No. 19-309.

Sentencing is the most difficult aspect of being a judge. The decision by a Canadian trial court judge may be appealed. Time will tell. But regardless it was courageous.

From the Globe & Mail “A Northern Ontario judge has balked at giving six Indigenous offenders the mandatory jail sentence for driving drunk, saying jails have become the modern version of residential schools for Indigenous peoples, causing lasting damage to communities.The case before Ontario Court Justice David Gibson involved six women from the Pikangikum First Nation, all of them mothers, five with families of up to nine children. Each woman pleaded guilty to impaired-driving offences, and in a joint hearing, brought a constitutional challenge to minimum sentences because, in practical terms, they couldn’t serve them on weekends, as other people do.Under federal law, repeated impaired-driving offenders face a mandatory minimum jail term of as much as 90 days (the penalty for a third or subsequent offence). The nearest correctional facility to Pikangikum is in Kenora, more than 200 kilometres away, and roads are not accessible most of the year, making it difficult to return home after the weekend.“In a community where 75 per cent of the population is under the age of 25, removing mothers from their children for extended periods of time will [undoubtedly] exacerbate existing problems in this vulnerable and destabilized First Nation,” Justice Gibson wrote in the 36-page ruling.What’s more, he said, overcrowding at the 94-year-old Kenora District Jail means inmates at times sleep on floors next to a toilet. And the court heard from a recent superintendent of the jail that some prisoners are forced into “fight clubs.” The jail has long-term destructive effects, the judge concluded.“When one considers the impact such brutalizing experiences must have on inmates and what they must carry home with them to their First Nations, it is very hard not to notice the grotesque similarities between these kinds of ‘correctional institutions’ and residential schools that have caused such lasting damage to Indigenous communities.”Usually, short mandatory sentences can be served on weekends, allowing offenders to continue working and taking care of their children.But because Pikangikum, in Northwestern Ontario, has no jail, weekend sentences are unheard of, the judge said.” For the full story: https://www.theglobeandmail.com

Are we in a new era where the deference courts give to police officers based upon their training and experience may well deserve reconsideration. Michael E. Moritz College of Law) has posted Race and Reasonable Suspicion (Florida Law Review, Forthcoming 2021) on SSRN. Here is the abstract: The current political moment requires us to rethink the ways that race impacts policing. Many of the solutions will be political in nature, but legal reform is necessary as well. Law enforcement officers have a long history of considering a suspect’s race when conducting criminal investigations. The civil rights movement and the progressive criminal justice decisions of the Warren Court mitigated the explicit use of race as a factor, but there is ample evidence that many modern police officers still openly or implicitly use race to guide their investigative decisions.

This article examines and critiques how courts have historically analyzed the question of race in the context of determining reasonable suspicion or probable cause. There are two constitutional provisions that regulate whether and how the police can use race as a factor to meet the legal standards. Under the Fourth Amendment, police can only use race as a factor if race is relevant to the likelihood that the suspect is engaged in criminal activity. In theory, there could be a relationship between race and criminal activity in a narrow subset of cases. But in reality, police and courts rely on dubious anecdotal data to support this relationship, and conduct flawed statistical analysis to calculate the strength of the relationship. Also, much of the data that exists is tainted by decades of biased policing and prosecution practices. Because there are a small subset of cases in which a correlation between race and crime may exist; we need a legal reform that requires prosecutors to demonstrate the existence and strength of the correlation through empirical data rather than through the subjective experiences of law enforcement.

Under the Equal Protection Clause, police officers may only explicitly use race to support individualized suspicion if the use of race is narrowly tailored to serve a compelling state interest and there is no race-neutral factor that would also satisfy that interest. Although one would expect this standard to severely limit the use of race in criminal investigations, courts have allowed police to use race in a surprising number of cases. In many cases, courts do not even find that the explicit use of race triggers strict scrutiny. In other cases, when so-called race neutral factors trigger disparate impact, the evidentiary burden shifts to criminal defendants to prove that the race-neutral factor was applied with discriminatory purpose, a standard which is nearly impossible to establish. Even when strict scrutiny is triggered, courts have often been willing to conclude that crime control is a compelling state interest and that the use of race is narrowly tailored to meet that interest. This article argues that courts in criminal cases must apply an Equal Protection test identical to the test used in civil cases in order to limit the use of race in criminal investigations, thereby limiting the practice to the rare instances when it is truly necessary.