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.”

By Evidence ProfBlogger Share

Similar to its federal counterpart, Idaho Rule of Evidence 803(1) provides an exception to the rule against hearsay for

A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

The first part of this “present sense impression” exception is easy enough. If I tell my friend, “My stomach hurts” while my stomach hurts, my statement is a present sense impression because I am describing/explaining a condition while I am perceiving it. Similarly, if I say to my friend, “Hey, that’s Nancy” while I see Nancy crossing the street, my statement is a present sense impression because I am describing/explaining an event while I am perceiving it. But what if I told my friend, “My stomach hurt x minutes ago” or “I saw Nancy crossing the street x minutes ago.” How many minutes can pass before my statement is no longer made immediately after I perceived the event or condition?

Previously, I’ve noted that I’ve seen courts admit present sense impressions made up to 23 minutes after perceiving an event or condition. See United States v. Blakey, 607 F.2d 779 (7th Cir.1979). This would be consistent with the recent opinion of the Supreme Court of Idaho in Cazier Revocable Trust v. Cazier, 2020 WL 3989094  (Idaho 2020). In Cazier, a party sought to introduce a February 21, 2019 affidavit about phone calls that occurred on September 18, 2018 and October 11, 2018.

The Supreme Court of Idaho held that the affidavit clearly was not a present sense impression because 

time lapses as “slight” as forty-five minutes have been considered too long to invoke the protection of I.R.E. 803(1). See State v. Woodbury, 127 Idaho 757, 762, 905 P.2d 1066, 1071 (Ct. App. 1995) (Walters, J., concurring) (citing U.S. v. Cruz, 765 F.2d 1020, 1024 (11th Cir. 1985)) (“Testimony in this case indicated that Hansen’s statement to Officer Knight was made about forty-five minutes after the attack. This time span does not qualify as ‘immediately’ after the event.”).

So you have a sentencing. The defendant has a misdemeanor record. What weight if any should you give that information? J.D. King (Washington and Lee University – School of Law) has posted The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence (54 Ga. L. Rev. 927 (2020)) on SSRN. Here is the abstract: Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence.This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production. Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences. Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings.

Sue Pope and Alex Biedermann (Principal Forensic Services and University of Lausanne) have posted Editorial: The Dialogue between Forensic Scientists, Statisticians and Lawyers about Complex Scientific Issues for Court (Frontiers in Genetics, vol. 11, Article 704, 1–2) on SSRN. Here is the abstract: This is the Editorial of the Frontiers open-access article collection “The Dialogue Between Forensic Scientists, Statisticians and Lawyers About Complex Scientific Issues for Court”. The 11 articles (by 22 authors) can be found here: https://www.frontiersin.org/research-topics/4000.

Recidivism is perplexing. There are high rates of failure of inmates who leave prison. Every  judge who places individuals on probation hopes that there will be a success. Yet we know that some percentage of people will reoffend. What are the factors that increase the likelihood of recidivism?  There is a  new article  posted to SSRN and authored by Leah Jacobs and Jennifer Skeem that discusses the role neighborhood plays.  Here is its abstract:Justice-involved people vary substantially in their risk of re-offending.  To date, recidivism prediction and prevention efforts have largely focused on individual-level factors like antisocial traits.  Although a growing body of research has examined the role of residential contexts in predicting re-offending, results have been equivocal.  One reason for mixed results may be that an individual’s susceptibility to contextual influence depends upon his or her accumulated risk of re-offending.Based on a sample of 2,218 people on probation in San Francisco, California, this study draws on observational and secondary data to test the hypothesis that individual risk moderates the effect of neighborhood factors on recidivism. Results from survival analyses indicate that individual risk interacts with neighborhood concentrated disadvantage and disorder — these factors increase recidivism among people relatively low in individual risk, but not those at higher risk. This is consistent with the disadvantage saturation perspective, raising the possibility that some people classified as low risk might not recidivate but for placement in disadvantaged and disorderly neighborhoods.  Ultimately, residential contexts “matter” for lower risk people and may be useful to consider in efforts to prevent recidivism.