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 There Lessons From Cook County’s Bail Reform?

Recent bail reforms in Chicago, Illinois, did not cause a surge in gun violence in the city, a new report concludes. The Cook County judge who implemented the reforms says the study shows “that bail reform furthers the cause of justice and equality by releasing defendants not deemed a danger to any person or the public.” WBEZ  The report can be found here: LOYOLA UNIVERSITY CHICAGO

Should Courts Suspend Civil Jury Trials

As a result of the pandemic increasing numbers of states have temporarily closed bars and restraints, gyms and sometimes schools. So is it time for courts to follow suit?

Tennessee jury trials have been postponed through Jan. 31 because of rising coronavirus cases.

The Tennessee Supreme Court issued the order suspending trials Tuesday. The suspension will begin Nov. 23 through Jan. 31 unless an exemption is granted by the Chief Justice on a case-by-case basis. 

The order also directs judicial districts to reexamine their reopening plans and coronavirus protocols, specifically mentioning the high court receiving complaints of judges, attorneys and defendants failing to follow protocols and some even attending court while testing positive for the virus. 

Face masks are required for everyone who enters courthouses. 

The order urges court staff to use phone and video conference calls as a way to avoid in-person meetings when possible

Tennessee is not alone in making this decision. what should courts do? Feel free to chime in.

Addressing Justice System Inequities Head-On

JMI’s Tom Eberly and three members of the National Network of Criminal Justice Coordinating Councils (NNCJCC) conducted a webinar on navigating how to facilitate difficult discussions, specifically on racial inequities in the justice system. Hosted by the Council of State Governments Justice Center with funding support from the U.S. Department of Justice’s Bureau of Justice Assistance, the webinar featured Kristy Danford, Project Director for the Criminal Justice Coordinating Council in Charleston County, South Carolina; Michael Daniels, Director of Justice Policies and Programs in Franklin County, Ohio; and Tiffany Iheanacho, Justice Services Director in Buncombe County, North Carolina.Leaders of local criminal justice initiatives often need to facilitate sensitive conversations when evidence points to disparities in the system. Disparate outcomes can take many different forms, such as longer jail stays for people with serious mental illnesses or disproportionate numbers of people of color being booked into jail. Elevating these topics as priorities and guiding system stakeholders toward meaningful action may feel uncomfortable, challenging, and stressful for the people driving the conversation. During this webinar, a panel of county justice system directors shared their approach for championing change when systemic disparities demand a new path forward.The webinar highlighted the efforts in each of the three counties and the critical role that CJCCs and criminal justice coordinators serve in guiding and supporting those conversations.The recorded webinar can be found here: https://csgjusticecenter.org/events/addressing-justice-system-inequities-head-on/

What To Do About Requests For Bench Trials

Some states do not require the consent of the prosecution for a bench trial but that is not the rule in federal court (and some states). The pandemic has created new problems with this issue. and at least in one case a federal judges has decided that the request for a bench trial should be granted even though the prosecution has objected.

From U.S. v. Cohn, decided Wednesday by Judge Gary R. Brown (E.D.N.Y.):As a result [of the epidemic], at this writing, despite significant effort, research and investment by the Court, this district has not held a jury trial since March of this year, and in-person proceedings have been limited, although the Court has been gradually expanding its operations.This backdrop provides the context for a dispute in the instant criminal prosecution, in which securities fraud-related charges have been pending against the defendant for more than a year. At the Court’s suggestion, the parties considered whether a bench trial could provide an appropriate avenue for resolution of the charges given the complexities posed by a potential jury trial in the current circumstances. After careful consideration with counsel, the defendant agreed to waive his constitutional right to a trial by jury and consented to a bench trial. The Government, on the other hand, has declined to consent to a nonjury trial, insisting instead on a jury trial when that becomes a viable alternative for this case….While the Federal Rules of Criminal Procedure require the Government’s consent, in extraordinary situations, the Court is empowered to conduct a bench trial upon the defendant’s waiver even over the Government’s objection when required by the interests of justice. Upon careful consideration, the Court finds that the unusual, if not unique, circumstances presented by this particular case dictate that a bench trial be held notwithstanding the Government’s objection. The facts and circumstances considered within the legal framework discussed herein include

  1. the length of time during which the charges have been pending, which in this case is more than a year;
  2. the uncertainty of providing a jury trial in this particular case within an ascertainable time frame;
  3. the complexity of this case—involving weeks of testimony and hundreds of thousands of pages of documents—which will serve to further complicate a jury trial under present circumstances;
  4. the defendant’s age and health profile, which not only render a trial more difficult but may bear upon his right to testify in his own defense;
  5. the marked public interest in this case and the delays in its resolution, which implicates the public’s right to a speedy trial; and
  6. evidentiary issues already identified by the Court raising the specter of possible juror confusion.

Upon consideration of the facts and circumstances, as discussed below, the Court will grant the defendant’s application to hold a bench trial in the absence of the Government’s consent….The court’s analysis is pretty detailed; if you’re interested, read the entire opinion


The Gallup release, headlined “Fewer Americans Call for Tougher Criminal Justice System,” reports on new polling number concerning pubic views on the US criminal justice system. As summarized by Professor Doug Berman in his Sentencing blog Here are the details:

Americans’ belief that the U.S. criminal justice system is “not tough enough” on crime is now half of what it was in Gallup’s initial reading of 83% in 1992.  The latest measure, at 41%, is the lowest on record and down slightly from the previous reading in 2016 — although it remains the view of the plurality.  At the same time, there has been a seven-percentage-point uptick among those who say the system is “too tough” (21%) and no change among those who think it is “about right” (35%).

Americans’ perceptions of whether the criminal justice system in the U.S. is too tough, not tough enough or about right in its handling of crime since 1992.  The percentage saying it is not tough enough has fallen from 83% in 1992 to 41% now.  At the same time, the percentage saying it is about right has risen from 12% in 1992 to the current 35%, and those who think it is too tough has increased from 2% in 1992 to 21% now.

Across the five times Gallup has asked this question since 1992, when public perceptions of national and local crime rates were at or near their highest points, there has been a steady decrease in the percentage saying the system is not tough enough and increases in the percentages saying it is too tough or about right.  These changes coincide with declines in crime rates in the U.S.  The latest reading is from Gallup’s annual Crime poll, conducted Sept. 30-Oct. 15, 2020.

Americans’ faith in the U.S. criminal justice system remains low according to Gallup’s 2020 Confidence in Institutions poll conducted earlier this year, and confidence in one element of that system — the police — fell to a record-low level in the same poll.  This decline in confidence in the police followed several high-profile deaths of Black Americans at the hands of police officers, including George Floyd, Breonna Taylor and Rayshard Brooks.

Views of the criminal justice system vary by party identification and racial background.  A 58% majority of Republicans and Republican-leaning independents say the criminal justice system is not tough enough.  However, this view is shared by less than half as many Democrats and Democratic-leaning independents (25%), while 37% think the system is about right and 35% too tough.

More White Americans than non-White Americans say the justice system is not tough enough on crime (45% vs. 31%, respectively).  The plurality of non-White adults, 40%, think it is about right, while 26% believe it is too tough.

Americans across these four party and racial subgroups have become significantly less likely to say the criminal justice system is not tough enough, but it has declined the most among Democrats, falling from 62% in 2000 to 25% today.  Over the same period, Democrats’ view that the system is too tough has grown from 6% to 35%.

Given two options for approaches to lowering the U.S. crime rate, more Americans prefer putting money and effort into addressing social and economic problems such as drug addiction, homelessness and mental health (63%) rather than putting money and effort into strengthening law enforcement (34%).

But Your Honor I Really Love Her

By Evidence ProfBlogger Share

Maryland has a spousal testimonial privilege, which states in pertinent part that 

(a) The spouse of a person on trial for a crime may not be compelled to testify as an adverse witness unless the charge involves:

(1) The abuse of a child under 18; or

(2) Assault in any degree in which the spouse is a victim if:

(i) The person on trial was previously charged with assault in any degree or assault and battery of the spouse;

(ii) The spouse was sworn to testify at the previous trial; and

(iii) The spouse refused to testify at the previous trial on the basis of the provisions of this section.

So, let’s say that a defendant is accused of a crime and marries a prospective witness against him so that she can invoke this spousal testimonial privilege. Can that defendant be charged with witness tampering and obstruction of justice? This was the question of first impression addressed by the Court of Appeals of Maryland in its recent opinion in State v. Wilson, 2020 WL 6266905 (Md. 2020).

The court answered this question in the affirmative, concluding that

Here, we conclude that, where a person marries a potential witness for the State with the intent to have the witness invoke the spousal testimonial privilege at a criminal proceeding in order to prevent the witness from testifying at the proceeding, the evidence is sufficient to support convictions for witness tampering and obstruction of justice. This Court’s holding in Romans, 178 Md. at 593, 598, 600, 16 A.2d at 644, 647, 648, and federal appellate case law support the conclusion that engaging in otherwise lawful conduct with the intent of trying to preclude a witness for the State from testifying at an upcoming criminal trial may constitute corrupt means under the witness tampering and obstruction of justice statutes. We conclude that the use of corrupt means involves acting with corrupt intent, i.e., a person uses corrupt means by marrying with the intent to preclude another person from testifying at a criminal proceeding, even though the conduct involved-entering into a marriage-is otherwise lawful.

Should We Have Partisanship In Our Courts?

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? 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 is not often that judges are called upon to rectify centuries old injustices. But as illustrated by a story written by   Amanda Coletta, perhaps the Supreme Court of Canada will be called upon to decide what to do about indigenous people who were here first.

It was a frosty October morning when Richard Desautel aimed his Mauser 98 bolt-action rifle at a cow elk in the Arrow Lakes area of British Columbia, shot the animal dead and phoned wildlife conservation officers to report what he’d done.That call, made a decade ago this month, set into motion a plan that was years in the making. Authoritiescharged Desautel, a U.S. citizen and member of the Lakes Tribe of the Colville Confederated Tribes in Washington state, with hunting without a license and hunting big game while not a resident of British Columbia.It was what Desautel wanted. It gave him the opportunity to argue thathe was exercising his right under Canada’s constitution to hunt for ceremonial purposes on the traditional land of his ancestors, the Sinixt, an Indigenous group that Canada declared extinct more than 60 years ago.
Canadian government inquiry assails ‘genocide’ of Indigenous women, girls Now he’ll argue his case before Canada’s Supreme Court, in a proceeding that could have sweeping implications for Indigenous groups on both sides of the border. A victory could give more Native Americans in the United States the right to use their tribes’ traditional lands in Canada.

How Do We Forgive Effectively?

The war on drugs was never a good metaphor. as a result of that “war” a lot of people who were chemically dependent have been branded with criminal records. Those criminal records inhibit people from succeeding in life and ironically make sustained recovery more complicated. So how do we forgive effectively? Brittany KellyJohn HeinzAnthony Singer and Aila Hoss  have posted Promoting Expungements to Minimize the Adverse Impact of Substance Use Disorder Criminalization (Albany Law Review, Forthcoming) on SSRN. Here is the abstract: Research has already documented the irreparable harm of the criminalization of drugs. In the United States, these policies have led to disproportionate rates of incarceration of black men, separated children from their parents in foster care and custody proceedings, and often left people unable to secure employment and housing. Criminalization has also had harmful impacts from a public health perspective. Substance use disorder is a medical condition with established criteria for diagnosis. Criminalizing SUD instead of treating it often leaves people without access to treatment for their condition. Criminalization of drug paraphernalia possession has also undermined the efficacy of public health strategies, such as overdose immunity laws and syringe service programs.

Many advocates and scholars across human rights, public health, and other disciplines argue that decriminalization and legalization of drugs is necessary. While some states and localities have begun to decriminalize and legalize drugs, most do not. And, in many jurisdictions, this would be unrealistic in the near future. Indiana law, for example, makes possession of drug paraphernalia a misdemeanor offense. The state legislature in fact elevated syringe possession to a felony in 2015. What other legal strategies are available when decriminalization and legalization are not?

This article explores expungement as a tool in mitigating the harmful impacts of criminalizing substance use disorder. It discusses the inadequacies of current criminal-based strategies for responding to the SUD crisis and the public health impacts of criminalization and describes expungement law generally and provides an in-depth summary of Indiana’s expungement laws. Given the substantial nuances within expungement law, this article provides analysis on how they can be best structured to promote their use. It argues that Indiana could implement a variety of strategies to promote expungement laws and thereby support individuals with substance use disorder.

What To Do About Bail Reform?

California Defeated the Bail Ballot, Unsure of What’s Next

The group behind the “no” vote on Proposition 25 wasn’t against it because they like the state’s cash bail system. They just wanted to enact reform from the ground up. But now there’s uncertainty about what happens next.

Jason Pohl, The Sacramento Bee   |   November 6, 2020   |  Analysis

(TNS) — Lex Steppling and his team of criminal justice activists knew they wanted to undo California’s law abolishing cash bail. They said it would merely replace one oppressive system with another, worsen racial inequities and give too much power to algorithms and judges.

They were convinced they were right. But he didn’t think they’d actually defeat Proposition 25 — especially not by a nearly 11-point margin.

“We didn’t expect to win, let alone win by so much,” Steppling said in an interview. “I’m still wrapping my head around that part.”

The victory marked a surprising end to an unlikely marriage between an extreme “abolitionist” wing of the criminal justice reform movement and California’s billion-dollar bail bond industry. Traditionally enemies, together they undid a years-long effort from the California Legislature that could have created one of the most significant justice system changes in a decade.

The longstanding system of cash bail will remain in place indefinitely. As Steppling and others say they plan to push for county-by-county changes, the type of top-down change that would have followed Proposition 25 is on hold as uncertainty sweeps through the now-fractured criminal justice reform movement.

Advocates said Wednesday they were “poised to build our system anew.” But those advocates are facing severe criticism, including from more moderate justice reformers. They’re also feeling the pressure of a familiar problem: Once something is repealed, what exactly do you replace it with — and how?

Steppling is the co-chair of the No on Proposition 25 campaign and an advocate with Dignity and Power Now, a Los Angeles nonprofit that has sued the sheriff’s office over jail conditions, rallied against new jail construction, and pushed for taking funding away from police departments. They want to see radical, grassroots improvements to the justice system.

“Our fixation is not simply on bail,” Steppling said, criticizing the existing power that judges and police have. “We want to make a transformative change that disables the drivers of pretrial incarceration.”

Proposition 25 — and SB 10, the legislation it was a referendum on — came after years of work in the California Legislature to make that change. Besides doing away with cash bail, it would have brought mandatory audits to measure racial biases. The changes, which lawmakers could adjust as needed, could have opened a window into an often opaque system of justice where little information about cash bail bonds is ever made public.

By Thursday evening, roughly 55.6 percent of the counted vote was in support of keeping the current cash bail system indefinitely. No county south of Santa Cruz in the Bay Area supported Proposition 25. It was a resounding defeat and in sharp contrast to two other justice system measures that passed — one expanding voting rights to people on parole and another blocking tough-on-crime proponents’ plan to make stiffer penalties for low-level offenses.

“It was a case of the kind of far left and far right converging and not a lot of space left in the middle to get rid of cash bail,” said Keramet Reite, a criminologist at UC Irvine.

Proposition 25’s failure will likely cast a long shadow on justice reform in California. Lawmakers are barred from taking another crack at cash bail that is similar to the one voted down Tuesday. They might also be hesitant to take it up again, saying the voters have already spoken.

That has longtime advocates on edge.

“You fear what you think you can’t change,” said Sam Lewis, head of the Anti-Recidivism Coalition, among the most active criminal justice reform organizations in California. Lewis, who was released in prison in 2012 after serving 24 years, was among the fiercest supporters of Proposition 25. He said he thought the killing of George Floyd would have made people want to dismantle the system now more than ever.

“Instead,” Lewis said, “we kept a system that’s steeped in racism and criminalizes poor, black and brown people because we were afraid.”

What Happens Next?

Steppling’s organization says it has a plan to improve the jail system from the ground up. It’s unclear how exactly that plan would roll out and how much it could be deployed in counties across the state.

The replacement, he said, “does not begin and end in Sacramento.”

“If we let our sense of possibility be mediated by electeds, we would never get anywhere,” Steppling said. “We have to create a roadmap to something different, and then actually organize and do that work and build community pressure.”

Steppling said his group will work to replicate programs in other places like the one they helped push in Los Angeles County calling for jail diversion programs.

County-by-county, they plan to push a plan called Preserving the Presumption of Innocence. The plan calls for non-law-enforcement groups to evaluate people’s risk, counties to collect better data, and law enforcement to only detain people accused of serious or violent felonies. It is modeled, in part, from the bail reform law voters shot down Tuesday.

Sen. Robert Hertzberg, D- Los Angeles, who wrote SB 10 and has championed bail reform, was unconvinced that Steppling’s work would be successful. He said his yearslong effort that culminated with Proposition 25 was, in fact, a grassroots effort with people across the state. It prompted new county-level public safety assessment programs and was the type of sweeping change to state law that is needed for a broken system.

“The only way to solve this is at a statewide level,” he said. “You can’t fix the bail system on a county by county basis. It just doesn’t work. It has no legal authority.”

State-level bail fights aren’t over. The California Supreme Court has a case pending that would force judges to consider a defendant’s ability to pay bail before setting it. The Humphrey case could force a reckoning about how high bail is set, eroding some of the industry’s profits. It’s why Hertzberg said that, despite Proposition 25 failing, the bail industry “is on life support and the oxygen is running out of their tank.”

Any grassroots successes would also be scattered, said Jonathan Simon, a professor at UC Berkeley who studies law enforcement and was against Proposition 25. A so-called progressive prosecutor movement, like in San Francisco and Los Angeles along with other local reforms in the years since public safety realignment could prompt the kind of change Steppling described.

San Francisco District Attorney Chesa Boudin has committed to new policies targeting racial disparities in the justice system that include ending gang enhancement charges and charges where police find contraband through “pretextual” traffic stops. And in Los Angeles, George Gascón is leading in the race to head the largest district attorney’s office in the country on a progressive platform that includes eliminating cash bail.

“There’s plenty of opportunity for bail reform at the local level,” Simon said. “Counties can decide to adopt some level of this.”

It also means that conservative counties, such as Kern in Southern California or those in the north state — can ignore the changes altogether, indefinitely.

“That’s going to mean that some counties have some really regressive arrest and bail policies,” Simon said.

A Long Fight to Tuesday

For decades, California lawmakers have mulled ways to dismantle the cash bail industry, which is seen widely as unfairly harming lower-income families and people of color.

Judges generally follow what’s called a bail schedule, a preset grid that has dollar amounts attached to specific crimes. Those who do not have the money to post bond wait in jail for their case to end, whereas those with resources can get released.

Bail bond companies fill the gap in the middle for people who don’t have thousands of dollars on hand to pay to get out. Bond companies charge a fee — typically 10 percent — and arrange with the courts to have the defendant released from jail. The money is nonrefundable.

“We do not want bail being used as a form of punishment,” said Topo Padilla, president of the Golden State Bail Agents Association who has long said the problem is not with his industry but with local justice systems. “We do not want bail to be used to keep people in jail longer.”

Research has found minority communities and even families of domestic violence survivors can end up bearing disproportionate costs of cash bail. A Sacramento Bee investigation last month found that domestic violence survivors are paying cash to get their family members released from jail — a cruel twist in a pandemic that has devastated local economies.

Former Gov. Jerry Brown signed a bill into law in August 2018 that would have brought a sledgehammer to the system. To address concerns from groups like Steppling’s about racial bias in the risk assessments, lawmakers passed SB 36. They vowed to keep chipping away at the system to make things just and fairer.

Hertzberg wrote the 2018 law and last year’s addition aimed at repairing a broken system that benefits the bail industry.

“It may not be perfect, but we have the ability to come in and fix it. Let’s just get rid of the bail industry,” Hertzberg said in an interview Wednesday. “As much as they wanted to say they were for justice, they were for greenbacks, they were for money. That’s all they cared about. And that’s their business, I understand it, but it doesn’t make it right.”

That system fought back. Faced with the prospect of being outlawed, the state’s 3,200 licensed bail bondsmen and 7,000 employees gathered signatures for a referendum. With ample support from other groups, they collected enough signatures to put the future of the law up to the voters.

Soon came the unlikely marriage.

“Proposition 25 was not going to help get people out of jail, it was going to keep people in jail,” Steppling said. “And in some cases, many cases, thousands of cases, keep people in jail with no way out.”

“It was truly an honor to fight shoulder to shoulder with civil rights groups and law enforcement against this misguided legislation,” Jeffrey J. Clayton, Executive Director of the American Bail Coalition.

Reliable research about the effects of bail reform is hard to come by, in part because getting access to data is so fragmented.

But Heather Harris, a researcher at the nonpartisan Public Policy Institute of California who has extensively studied bail said roughly 11 percent of Latinos and 2 percent of African Americans would have likely been released sooner than they currently are.

While some people might have been detained slightly longer, the vast majority of suspects would have been released faster — risk assessments could propagate existing inequities, but those could be mitigated with other policies.

“Although our research does not address the question of whether risk assessment would have led to racially biased pretrial release decisions,” Harris reiterated Wednesday, “it does indicate that replacing money bail with a structured release process, would have mitigated some racial disparity in pre-arraignment release.”

For the full story see