Remote Justice is the title of this article authored by Jenia Iontcheva Turner now available via SSRN.  Here is its abstract:

The coronavirus pandemic has forced courts to innovate to provide criminal justice while protecting public health. Many have turned to online platforms in order to conduct criminal proceedings without undue delay.  The convenience of remote proceedings has led some to advocate for their expanded use after the pandemic is over.  To assess the promise and peril of online criminal justice, I surveyed state and federal judges, prosecutors, and defense attorneys across Texas, where virtual proceedings have been employed for a range of criminal proceedings, starting in March 2020.  The survey responses were supplemented with direct observations of remote plea hearings and the first criminal jury trial conducted via Zoom.

The survey responses paint a complicated picture.  They suggest that, on the whole, online proceedings can save time and resources for the participants in criminal cases and can provide broader access to the courts for the public.  Yet respondents also noted the dangers of remote justice, particularly in contested or evidentiary hearings and trials.  These include the inability of the parties to present evidence and confront witnesses effectively, and the challenges of providing adequate legal assistance remotely.  Respondents also expressed concern that the court’s perception of defendants may be negatively skewed by technology and that indigent defendants might be disproportionately harmed by the use of remote hearings. Defense attorneys were especially likely to be concerned about the use of the online format and to believe that it tends to harm their clients.  Federal judges and prosecutors were also more likely than their state counterparts to be skeptical of the benefits of online criminal proceedings outside the context of the pandemic.

Based on the survey responses, an analysis of scholarship and case law, and first-hand observations of virtual criminal proceedings, the Article concludes with several recommendations about the future use of online criminal justice.  It argues that states should be wary of expanding the use of remote proceedings after the pandemic is over.  Online technology could be used more broadly to conduct status hearings and hearings on questions of law and to increase the frequency of attorney-client consultations.  Beyond these narrow circumstances, however, remote hearings post-pandemic should be used only sparingly, as they carry too many risks to the fairness of the proceedings.  If jurisdictions make the choice to use virtual proceedings in circumstances beyond status hearings and legal arguments, this should be done only after obtaining an informed and voluntary consent from the defendant, and with great care taken to reduce the risks of unfairness and unreliable results.

Thomas Albright and Brandon L. Garrett (Salk Institute for Biological Studies and Duke University School of Law) have posted The Law and Science of Eyewitness Evidence on SSRN.

Here is the abstract: Eyewitness evidence, used in tens of thousands of criminal cases each year, crucially depends on eyewitness memory, which is quite fallible. The potential inaccuracy of eyewitness memory has been long demonstrated by examples of mis-identifications, including in cases of wrongful conviction. Eyewitness identification procedures, which are themselves experiments, lend themselves to scientific research as do few others in law. Today, decades of scientific research on visual perception and memory have identified key causes of error and methods for improving eyewitness performance. As a result, eyewitness evidence has become a testing ground for the use of science to inform the law. This Article examines how legal actors — state and federal courts, state lawmakers, and police agencies — have responded to this body of research. While U.S. Supreme Court rulings set a constitutional floor, we find that it largely does not inform eyewitness evidence law. State courts have increasingly incorporated eyewitness memory science, as we describe in a detailed fifty-state survey of rulings. Second, we explore how state lawmakers have done still more, in an analysis of twenty-four state statutes that regulate eyewitness identification procedure. Third, policing agencies have most eagerly embraced revised identification practices to take account of scientific research. We describe a sea change in police practice, including through model policy adopted in twenty-nine states. Based on these findings, we call into question top-down, stare-decisis-bound, and federal court-centric accounts that dominate constitutional criminal procedure. Further, we describe how research continues to progress; a new generation of research promises to further improve accuracy of eyewitness procedures. While constitutional criminal procedure is unlikely to change in the near future, we expect that local actors will harness research developments. We conclude by asking why, in the eyewitness area, criminal investigation and procedure have been so receptive to research. We suggest that rather than adopting a legal precedent-based system, police practices and statutes employ a scientific framework that can incorporate new discoveries. This account of dissemination and adoption of research points towards a dynamic framework for the use of science in the legal system.

Because it maybe happening in your community.

Annie Vartanian (University of Pennsylvania – Department of Criminology) has posted Racial Disparities In Stop and Frisk Distributions by the Philadelphia Police Department on SSRN. Here is the abstract: The rates of police stops of Black and White pedestrians vary greatly in Philadelphia, Pennsylvania. Using a propensity score design, this study matches the rates of stops using stop data characteristics from the Philadelphia Police Department to further analyze racial disparities in police stops. Re-weighting allows to better analyze stop distributions by assessing the difference of frisk rates between Blacks and Whites. The purpose of comparing the stops in similar situations is that if the location of the stop is controlled for, along with the gender, year, and time of day of the stop occurrence, the explainatory variable left to be a plausible reason in stop rate differences between the groups is race. Black pedestrians in Philadelphia are disproportionally frisked more than White pedestrians, 15% vs. 10%. However, Philadelphia police are more likely to recover contraband from frisked Black pedestrians.

Ruth Bader Ginsburg’s Legacy of Empathy and Courage

By Sahar F. Aziz Share

Justice Ruth Bader Ginsburg’s life embodies the best of America. Her experiences of being a first-generation American, a religious minority, and a woman who overcame discrimination informed her jurisprudence.

The grandchild of Jewish immigrants from Russia, Ginsburg understood how fear of violent pogroms caused her family to leave their home, along with hundreds of thousands of Jews who immigrated to the United States in the early 20th century. She also appreciated the hope for a better life America offers its constant stream of newcomers.

Despite the discrimination she faced, America was a stark contrast with Russia where her grandfather was prohibited from attending school and working in certain occupations because he was Jewish.

Our celebration of the legacy of the first Jewish American woman to serve on the US Supreme Court, thus, speaks volumes about America’s potential for progress.

But Ginsburg knew her success was more an exception than the rule. Her life experiences constantly reminded her that the gulf between America, the ideal, and America, the reality, was wide. During her Senate confirmation hearing in 1993, Ginsburg candidly stated, “I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in [Pennsylvania], a resort with a sign out in front that read: “No dogs or Jews allowed.”

For too many African Americans, Jews, and women of Ginsburg’s generation, legal exclusion from certain educational institutions, neighbourhoods and professions was a daily reminder there were two Americas. One for the insiders, and another for outsiders. This reality influenced how she practised her profession.

In a 2018 interview, Ginsburg admitted that “the sense of being an outsider – of being one of the people who had suffered oppression for no . . . no sensible reason . . . it’s the sense of being part of a minority. It makes you more empathetic to other people who are not insiders, who are outsiders.”

Coupled with her Jewish upbringing that instilled in her a firm belief in the fight for justice, Ginsburg’s outsider status among the first cohort of female students at Harvard Law School and few female law professors nationwide in the 1960s reminded her daily how law perpetuated societal discrimination. Accordingly, she committed her life’s work to dismantling the legal structures that systematically denied women and minorities opportunity and agency.

It should come as no surprise that Ginsburg’s work has inspired a generation of people who experience outsider status in the US, including Muslims. For the past 20 years, overt anti-Muslim racism has been rampant. Ranging from protests calling on Muslims to get out and “go home” to state legislation seeking to deny Muslims the right to practice their religion as part of an “anti-Shariah” national campaign, Muslims have been as openly condemned as Jews were a century ago.

When the Supreme Court in the case of Hawaii v Trump upheld President Donald Trump’s executive order imposing a ban on Muslim immigration, Ginsburg joined Justice Sonia Sotomayor in issuing a scathing dissent.

The two called out the majority for “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.” They boldly compared the upholding of the Muslim ban to the court’s shameful 1944 ruling in the Korematsu v United States case which upheld the internment of Japanese Americans and immigrants under the pretext of national security during World War II.

Ginsburg knew all too well the grave dangers of a candidate for president calling for a “total and complete shutdown” of an entire religious group. In a July 2016 interview with the New York Times, she said: “I can’t imagine what this place would be – I can’t imagine what the country would be – with Donald Trump as our president.” As America experiences historic levels of political strife and polarisation – due in large part to Trump’s divisive rhetoric and policies – Ginsburg’s concerns have proven prescient. 

While her life and legacy remind us of America’s tremendous potential for justice and equality, the political fight over her replacement is an ominous warning of the fragility of the American project. Heightened political polarisation, toxic masculinity, and the resurgence of white nationalism threatens the values for which Ginsburg stood – the rule of law, equality, and opportunity.

As we mourn her death and honour her legacy, let us remember her words of wisdom before the Senate 24 years ago, “What has become of me could happen only in America. Like so many others, I owe so much to the entry this Nation afforded to people yearning to breathe free.”

It is now our turn to act on the courage of our convictions to continue the work she began.

— Sahar Aziz, Professor of Law, Chancellor’s Social Justice Scholar, and Director of the Center for Security, Race and Rights at Rutgers University Law School (Newark)

This article was originally published here as well as being posted on the Race and the Law Prof Blog

History has a way of repeating itself. Several years ago Alaska Supreme Court Justice Dana Fabe was cruising along in her retention election. She served three terms as the court’s chief justice (2000–2003, 2006–2009, 2012–2015). She was the first woman appointed to the Alaska Supreme Court and the Alaska Supreme Court’s first female chief justice. Shortly before the election Lawn signs popped up to call for her defeat. Radio spots called for her defeat. Justice Fabe was opposed for retention by the private group CitizenLink, the public policy arm of the national Christian group Focus on the Family, weeks before the election. The group sought to have Alaskans vote against her retention. Fabe discussed this issue during the Evaluating Appellate Judges: Preserving Integrity, Maintaining Accountability conference (2011) Conference

Merit selection and retention elections were suppose to depoliticize state courts. It does not always work. The timing of the attack on Justice Fabe made raising money and then effectively spending it impossible. But she mounted a spited campaign quickly and was retained. Now it is happening again. “Christian, conservative groups organize to oust Supreme Court justice”: Nathaniel Herz of Alaska Public Media has a report that begins, “A coalition of conservative and religious leaders has launched a campaign to oust an Alaska Supreme Court justice whose rulings they oppose. The group, Alaskans for Judicial Reform, announced its campaign against Justice Susan Carney on Monday with a news conference in front of a downtown Anchorage courthouse.”

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.

By Jillianne Trotter Crescenzi, CFCC Student Fellow, Fall 2020

When people think about lawyers and the criminal justice system, they often think about catch phrases like “Law and Order” and “You must be good at arguing.” Our paternalistic society has been groomed to interpret law through a “right” and “wrong” lens, with nothing in between, and “order” must be brought upon all those who disrupt it. But what happens when circumstances are more complex and cannot be reduced to a “right” or “wrong” dichotomy?

I came to law school to solve hard problems — the types of problems that have gotten dusty on the shelf because they are multifaceted, and there isn’t one simple solution that will fix them all. Yet, these are the types of problems that keep happening. They pile so high that it becomes easier to assign them a label and send them to storage, rather than to address the underlying issues.

The Sayra and Neil Meyerhoff Center for Families, Children and the Courts (CFCC) approaches social and legal issues using a therapeutic jurisprudence (TJ) framework. TJ is a human-centered framework that analyzes the effect that laws actually have on people. TJ also evaluates the relationships between legal actors (e.g., the “accused,” judges, lawyers) and legal actions. When utilized, TJ helps to provide legal solutions that are more meaningful and result in greater efficiency. Importantly, in the criminal justice context, TJ does not adopt preconceived notions about the accused, but, rather, asks “why” did this happen and “how” can it be fixed? TJ is the way in which our legal system can provide true justice because it seeks to understand and account for the underlying issue. As noted author and public interest attorney Bryan Stevenson said in his book, Just Mercy: A Story of Justice and Redemption, “simply punishing the broken –walking away from them or hiding them from sight–only ensures that they remain broken and we do, too. There is no wholeness outside of our reciprocal humanity.”

The Power of “WHY?”

Do our legal decision-makers ask “why?” enough of the time? Further, do they ask “why” with the intention to leave enough space to understand any explanation given? The question “why?” should be step one in the process of considering how to address legal issues, on both an individual basis and a systemic basis.

“Why did you make that choice?”

“Why are children with disabilities more likely to be suspended than their non-disabled peers?”

“Why did this person not pay their bill?”

“Why is this law not effective?” or “Is this law actually effective?”

What happens when laws, policies, and practices are not good enough or are just plain bad? The response is often “that’s just the way it is.” But WHY is it that way, and does it have to be that way? Why is our legal system so quick to issue blanket penalties and fines to people who lack the means to pay? What good does that do? Why do we keep laws that do not result in their intended effects? Why are we so quick to close the book and say “it’s just not possible,” when there are so many possible ways to fix a problem if you are willing to look?

We do not have to look that far back to see the damage that some of our laws and policies have caused to large segments of our population. For instance, restrictive covenants and redlining prevented black and brown people from owning homes and building wealth; this didn’t just have an effect on the people directly discriminated against but also on their children, their children’s children, and so forth. Today, many laws and practices continue to exacerbate existing inequities, such as qualified immunity for police officers, which is in conflict with their systematic training to aggressively target black and brown people.

Law has the immeasurable power to repair harm, prevent harm, and provide justice. Law also has the power to cause harm, both directly and indirectly. As Fordham law professor and expert in family and poverty law Clare Huntington said, “(t)he real question is not the magnitude (. . .), but the end it serves.”[1]

But HOW?

How can our justice system possibly serve everyone if it must stop and ask “why” with each issue? Further, “the law’s the law” so what place does emotion and empathy have in it, if any? There is no single answer to these questions, but, rather, a framework that “initiates the question.”[2] TJ provides a framework that allows our justice system to address complex issues with the goal of providing more therapeutic outcomes. TJ’s co-founder, Professor David Wexler, views law as having either therapeutic or antitherapeutic qualities. Approaching legal solutions with that in mind, TJ starts with “why” and then proceeds with “how.” 

It is important to keep in mind that “how” to address a problem is a dynamic question; it changes by legal field, person, and circumstance. TJ in criminal law may look very different than TJ in family law. In family law, TJ can exist in what is called a Unified Family Court (UFC). In UFCs, the court weighs all the legal issues and circumstances a family is facing and attempts to mitigate the multitude of those diverse issues with personalized solutions. A UFC does not only  benefit the families it serves, but it helps all people and systems who interact with those families (e.g., education, healthcare, social services, children), including the professionals who work within the UFC.

In criminal law, a TJ approach may be achieved through restorative justice, such as restorative circles that incorporate “storytelling” in lieu of formal disciplinary meetings, or teen court instead of formal court proceedings. Restorative practices give everyone involved an opportunity to tell their story; their “why.” The solution, or the “how,” is developed after considering all viewpoints and working with the accused to remedy the injury.

Storytelling is an important component of restorative practices and TJ because it reduces preconceived notions by giving the accused the opportunity to fill in the gaps that were previously missing. It also gives the injured a chance to understand something they didn’t before. Restorative circles open a dialogue that helps all parties better understand each other and the consequences of their actions. While not specifically talking about restorative practices, Bryan Stevenson accurately describes an underlying value when he writes:

“Sometimes we’re fractured by the choices we make; sometimes we’re shattered by things we would never have chosen. But our brokenness is also the source of our common humanity, the basis for our shared search for comfort, meaning, and healing. Our shared vulnerability and imperfection nurtures and sustains our capacity for compassion.”

By asking “Why”, therapeutic jurisprudence leads to more informed decision-making on how best to achieve favorable results that can lead to fewer repeat offenses. More importantly, TJ seeks to provide outcomes that are empowering and have a long-lasting effect.

[1] Barbara A. Babb & Judith D. Moran, Caring for Families in Court: An Essential Approach to Family Justice at 37 (2019).

[2] Id. at 38.