About kevinburkeaja

Judge Burke is a District Court Judge in Minnesota. In September this year he will become a senior judge. He is a past president of the American Judges Association and currently the AJA treasurer.

Are Zoom Trials Fair & Effective?

For proponents of Zoom hearings the answer is Zoom hearings….indeed virtual jury trials…..are a magnificent by product of courts trying to respond to the pandemic. But are they really fair and effective. The Atlantic magazine explores the issue:

illustration of pixellated person taking oath with one hand raised

SOMNATH BHATTThis article was published online on April 13, 2021.In july, Michelle Rick, then a circuit-court judge in two Michigan counties, tweeted cheerily about a divorce she’d recently finalized. The participants had appeared in court via their smartphones. “He was on the road & parked his car to attend; she video-tx’d from her work breakroom,” the judge wrote. They were done in 15 minutes—faster than the proverbial Reno divorce.  For the full story in the Atlantic see: https://www.theatlantic.com/magazine/archive/2021/05/can-justice-be-served-on-zoom/618392/

Language Counts

From the Sentencing Law & Policy Blog

The Marshall Project unveils “The Language Project” to explore words used to describe people in the justice system

As a lawyer who thinks precise language and legal terminology is always important, and as a blogger who often hopes to avoid clumsy locutions and sometimes parrots and reprints journalistic word conventions, I am always interested in debates over the array of words we use in describing the criminal justice system and the people connected to it.  These debates are heating up as interest in criminal justice reform heats up.  Indeed, as some readers surely know, even the term “criminal justice system” is a matter of debate; many now speak of the “criminal legal system” in an effort to undercut any suggestion that the current system helps to achieve “justice.”

Against this backdrop, I am quite intrigued to see that The Marshall Project has unveiled today “The Language Project,” which it sets up this way:

Reporters and editors have long believed that terms such as “inmate,” “felon” and “offender” are clear, succinct and neutral.  But a vocal segment of people affected by the criminal justice system argue that these words — and any other words that define human beings by their crimes and punishments — are dehumanizing.

The Marshall Project occupies a unique space in criminal justice reporting.  We are not an advocacy organization, but we are committed to sustaining a sense of national urgency about the U.S. criminal justice system.  As a result, fellow journalists often ask us about our style and standards around the language of criminal justice, and activists we meet frequently confront us about our usage of words such as “inmate.”

The Marshall Project began addressing this issue in 2015, our second year of existence, but we did not make a decision to change our style guide.  Since then, through our deepening engagement with formerly and currently incarcerated people, we have realized the urgency of examining and articulating the language we use.

The Language Project serves three purposes.  First, through a series of powerful pieces by and about people with intimate experience with incarceration, we show the human impact of the words we choose.  Second, our guide, “What Words We Use — and Avoid — When Covering People and Incarceration,” makes public our decision to avoid labels such as “inmate,” in favor of language that follows the logic of “person-first” language.  Third, we provide alternatives to the labels.

At its heart, journalism is a discipline of clarity. The Language Project is our attempt to set the record straight.

Here are links to the first set of pieces in this notable new “Project”:

Thoughts From Greg Berman

Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

I am writing to share some of the writing I have been doing of late, which has largely focused on the challenges confronting nonprofit leaders and criminal justice reformers.  This includes the latest in the series of interviews I am doing for the Harry Frank Guggenheim Foundation on the surge in violence in New York City.

“People Who Do Hurtful Things Are Reacting to Hurtful Things”: A Conversation with Marlon Peterson

Man Plans, God Laughs: How Not to Reform the Criminal Justice System 

Hard Choices: How Can the “Nonprofit Industrial Complex” Do Better?

A View from the Future: Questioning the Conventional Wisdom in Criminal Justice

Greg Berman was for many years the force that drove the Center for Court Innovation. He is a very insightful guy. I got this e mail from him recently…..he has stepped down from his leadership role at the Center…..and I thought it should be shared.

Covid and Caseloads

The National Center for State Courts (NCSC) recently published a new paperand dashboard detailing trends in state court case filings and dispositions during the Covid-19 pandemic.
The research, based on data from 12 states, found that the number of criminal, traffic, and juvenile cases decreased last year and is likely to return to normal over the course of 2021. However, NCSC did not expect a surge in these types of cases because there was a widespread decline in criminal incidents, traffic incidents, and arrests since the outset of the pandemic.
The number of case filings in civil cases, on the other hand, is expected to surge according to NCSC, especially for cases dealing with eviction, foreclosure, and debt-collection, due to the economic downturn brought on by the pandemic. The number of juvenile dependency and domestic relations cases is also expected to surge as more children return to school and people become more mobile and able to leave their current living situation.

Just What Happened In The Presidential Election?

Join us for an important webinar on 
The Role of the Judiciary in Preserving Our
Constitutional Democracy
As Seen in the 2020 Presidential Election
Thursday, April 15, 2021
Noon to 3:30 p.m. Pacific / 3 p.m. to 6:30 p.m. Eastern
Register now
Despite scores of failed legal challenges, numerous recounts, and Congress’ confirmation of Joe Biden’s Electoral College victory, polls showed that a large majority of people who voted for Donald Trump for president in 2020 believed Mr. Trump’s claim that the election was stolen.

In a free society, people have a right to their own opinion. But we rely on the courts for findings of fact.

This no-cost webinar will examine how dozens of judges fulfilled their obligation to rule impartially on these challenges and what we as members of the judiciary can do to preserve judicial independence.

The program will begin with introductory and welcoming remarks by American Judges Association President Peter Sferrazza.

Berkeley Law Dean Erwin Chemerinsky will discuss cases that were considered by or appealed to the United States Supreme Court.

National Judicial College President Benes Aldana will moderate a panel of experts on the challenges filed in four key states:Nevada: Attorney General Aaron Ford, who defended challenges to the state’s election resultsGeorgia: Professor Neil Kinkopf, former staff member for the Senate Judiciary CommitteeArizona: Retired Arizona Chief Justice Scott Bales, who taught election law at Arizona law schools before joining the state’s Supreme CourtPennsylvania: Attorney Mark Aronchick, who represented Pennsylvania governmental interests in more than 25 cases in federal and state courts during the 2020 election cycle, at trial and during appeals
This webinar is presented free of charge in collaboration with the American Judges Association (AJA), National Center for State Courts (NCSC), and The National Judicial College (NJC). 

AJA Webinar

Digital evidence and The Evolving Court Record
Digital Evidence & The Evolving Court RecordCovid has transformed the way courts operate with virtual hearings and trials. This webinar will cover a range of topics relevant to courts that want to modernize the way they manage exhibits and evidence, not only in the virtual courtroom but when in person proceedings resume. Integration and presentation of video and audio evidence into trials will also be examined and how modernization will empower self-represented litigants and lead to better case preparation.
Wednesday, April 14, 2021 4:15 PM EDTRegister Now
Judge Samuel A. Thumma, Arizona Court of Appeals, Division One, and chair of the Arizona Task Force on Court Management of Digital Evidence will discuss the evolving court record and Arizona’s Digital Evidence court portal concept.

Judge Elyze Iriarte, Superior Court of Guam, examines the trial court’s need for digital evidence management and the quest for a platform. Digital Evidence Platform Demonstration by Thomson ReutersDigital Evidence Logo
To register, click here. Please forward this invitation to all others who may be interested.

For more information, contact the AJA Webinar Planning Committee.

California Supreme Court Ends Cash Bail for Some Who Cannot Afford to Pay

From the Brennan Center
On March 25, the California Supreme Court unanimously held that courts may not jail people charged with a crime in pre-trial detention solely because they cannot afford to pay bail.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said. Instead, “the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.”
The court’s decision was made in the case of Kenneth Humphrey, who was accused of stealing $7 and a bottle of cologne from his neighbor in 2017. His bail was initially set at $600,000, though it was later reduced to $350,000. The decision also comes just a few months after California voters rejectedProposition 25, which would have entirely ended the use of cash bail and required statewide use of controversial risk assessment tools.

“Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing”

Does media coverage of crime lead to harsher sentences? One would like to think that judges are not influenced by media coverage but ruling it totally out is perhaps a bit naive. There is an interesting  paper  exploring this issue posted on SSRN authored by Itay Ravid. Here is its abstract:

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

Should We Abolish The Crime Of Disorderly Conduct?

Disorderly conduct may well be one of the most frequent misdemeanor charges. So why would anyone suggest that disorderly conduct as a charge be abolished? Whether you ultimately agree there is a need for reform or not  this new article by Rachel Moran recently posted to SSRN is thought provoking.   Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve