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.

The Long Term Consequences of Convictions Are Worse Than We Think

According to a new report from the Brennan Center for Justice  the economic consequences of convictions and sentences on people of color are even worse than we thought. The report begins, “America’s 400-year history of racial injustice continues to produce profound economic inequalities — a reality our society must no longer ignore. The net worth of a typical white family, for example, is 10 times that of a typical Black family.1 Shockingly, despite the successes of the civil rights movement, this racial wealth gap has barely changed in the last half century.2. The full report can be found at https://www.brennancenter.org/sites/default/files/2020-09/EconomicImpactReport_pdf.pdf

How Would Your State Do?

The Harvard Law School Criminal Justice Policy Program just released this notable new report titled  “Racial Disparities in the Massachusetts Criminal System.”  Thanks tp Professor Doug Berman  here is a brief account of the 100+-page report and its findings :

People of color are drastically overrepresented in Massachusetts state prisons.  According to the Massachusetts Sentencing Commission’s analysis of 2014 data, the Commonwealth significantly outpaced national race and ethnicity disparity rates in incarceration, imprisoning Black people at a rate 7.9 times that of White people and Latinx people at 4.9 times that of White people.

In an attempt to better understand the sources of these disparities, Chief Justice Ralph D. Gants of the Supreme Judicial Court of Massachusetts asked Harvard Law School to research racial disparities in the Massachusetts criminal system.

CJPP collected administrative data from several criminal justice agencies, analyzing over 500,000 cases. In our report, we detail the results of our analysis of every stage of the criminal process. Our findings include:

  • Black and Latinx people are overrepresented in the criminal system.  Although Black people make up only 6.5% of the state’s population, African Americans are the subjects of 17.1% of criminal court cases. Similarly, Latinx people constitute only 8.7% of the Massachusetts population but 18.3% of the cases.  By contrast, White people, who make up roughly 74% of the Massachusetts population, account for only 58.7% of cases in the criminal system.
  • Black and Latinx people sentenced to incarceration in Massachusetts receive longer sentences than their White counterparts, with Black people receiving sentences that are an average of 168 days longer and Latinx people receiving sentences that are an average of 148 days longer.
  • Racial and ethnic differences in the type and severity of initial charge account for over 70 percent of the disparities in sentence length, overshadowing all other factors, including defendants’ criminal history and demographics, court jurisdiction, and neighborhood characteristics.
  • Among the subset of cases where the person was sentenced to incarceration in a state prison (i.e. cases involving charges that carry the longest potential sentences and where the racial disparity is largest), Black and Latinx people are convicted of charges roughly equal in seriousness to their White counterparts despite facing more serious initial charges and longer sentences.
  • Black and Latinx people charged with drug offenses and weapons offenses are more likely to be incarcerated and receive longer incarceration sentences than White people charged with similar offenses. This difference persists after controlling for charge severity and other factors.

Expert Witnesses On A Confession?

Applied Cognitive Psychology has scheduled a study for publication in a future issue: “The psychology of confessions: A comparison of expert and lay opinions.”
The authors are Fabiana Alceste, Timothy J. Luke, Allison D. Redlich, Johanna Hellgren, Aria D. Amrom, & Saul M. Kassin.
Here’s the abstract: “Despite a body of confessions research that is generally accepted in the scientific community, courts often exclude experts on the ground that such testimony would not assist the jury, which can use its common sense. To examine whether laypeople know the contents of expert testimony on confessions, we asked 151 lay participants to indicate their beliefs about 30 confession‐related statements used in a recent survey of 87 confession experts (Kassin et al., American Psychologist, 2018, 73, 63–80). Participants agreed with experts on only 10 of the 30 propositions, suggesting that much of the psychology of confessions is not common knowledge and that expert testimony can assist the trier of fact.”

TO OBTAIN A COPY OF THE ARTICLE: Contact info for reprint requests and questions or other correspondence about this article: Fabiana Alceste, Department of Psychology, Butler University, 4600 Sunset Ave., Indianapolis, IN 46208, USA — Email: falceste@butler.edu 

Bail Reform Is Critical But How Should We Do It?

Bail reform seems so simple. Defendants are presumed innocent. Determine the conditions of release and get on to the next case. But reform isn’t easy. Should we eliminate cash bail? After all it is a practice that favors those with the money to get out but if you eliminate can bail will just the same number of people still be held?

Jenny E. Carroll (University of Alabama – School of Law) has posted Beyond Bail (Florida Law Review, Forthcoming) on SSRN. Here is the abstract: From the proliferation of community bail funds to the implementation of new risk assessment tools to the limitation and even eradication of money bail, reform movements have altered the landscape of pretrial detention. Yet little attention has been paid to the emerging reality of a post-money bail world. With monetary bail an unavailable or disfavored option, courts have come to rely increasingly on non-monetary conditions of release. These non-monetary conditions can be problematic for many of the same reasons that money bail is problematic and can inject additional bias into the pretrial system.

In theory, non-monetary conditions offer increased opportunities for release over monetary bail and can be narrowly tailored to accomplish specific goals. Yet the proposition that such non-monetary conditions accomplish their purported goals is untested and unsettled. Pretrial release conditions are often imposed at the conclusion of a remarkably brief pretrial hearing and in a near rote fashion, with little or no evidence that the condition is necessary to avoid the risk or risks that fuel them. Defendants – many of whom are unrepresented at these hearings – may be ill-equipped financially or otherwise to comply with such conditions. Non-compliance may place defendants at risk of either additional criminal charges or future pretrial detention.

This Article argues that the reduction or eradication of money bail alone has not and will not ensure a fair and unbiased system of pretrial detention, nor will it ensure that poor and marginal defendants will benefit from pretrial release. Rather, these reforms have shifted the burden of release from paying money bail to paying fees for a laundry list of pretrial release conditions. If pretrial detention reform is to achieve meaningful results, it must address not just the most apparent barrier to release – the fee charged in the form of bail – but all barriers that promote pretrial incarceration and impose unjustified burdens on defendants awaiting trial.

Have Problem Solving Courts Changed The Practice Of Law?

This new paper authored by Cynthia Alkon  is now available via SSRN.  Here is the abstract:

Drug courts started thirty years ago in the United States.  The introduction of these courts brought high hopes that they would refocus our criminal legal system to therapeutic and rehabilitative methods while moving away from an otherwise largely punitive and punishment-oriented approach.  Has this happened?  Has the problem-solving court movement brought widespread change to how criminal cases are processed and how criminal lawyers, both prosecutors and defense lawyers, approach the practice of law?  Have these courts actually been a “monumental change?”  The simple answer is no.  These courts have changed how some defendants are treated some of the time.  But, the numbers impacted by these courts, even as the number of these courts has grown dramatically, remains small.  And, the rehabilitative approach within these courts has not led to changes in how other courts work within the larger criminal legal system. Problem-solving courts have remained, for the most part, in their own silo while other courts have continued business as usual focusing on punishment, not rehabilitation.

This article will start with a discussion of mass incarceration and offer some reasons why problem-solving courts did not prevent, or lessen, mass incarceration.  Next this article will discuss how problem-solving courts work, focusing on the roles of the professionals, the judges and lawyers, within these courts.  This article will then consider the impact, or lack of impact that these courts have had on how the larger criminal legal system works.  Finally, this article will suggest five key things that problem-solving courts do that would result in “monumental change” if more widely adopted by mainstream criminal courts.

School Choice In A Pandemic

From the Globe & Mail

An Ontario Superior Court judge has ruled that a nine-year-old boy will attend school in-person this fall after his separated parents could not agree about whether he should attend classes during the pandemic.

The case is part of an increase in custody-related disputes linked to COVID-19, which has complicated decisions around parenting time, schooling and other issues that can be fraught even without the added complications of a global pandemic.

The boy’s mother wanted her son to attend school in-person. She said the boy had trouble focusing on assignments and suffered from isolation since schools closed during the early days of the pandemic last spring. He is enrolled in a French immersion program despite neither parent being bilingual. The mother argued in-person schooling would allow him to be more successful.

The boy’s father, instead, wanted his child to attend virtual school. He said that while he recognized the social and academic benefits of their son being in a physical classroom, he argued that the health risks posed by the pandemic remained high. He was also concerned that wearing a mask in school would make it harder for his son to communicate.

Justice Andrea Himel ruled in favour of the mother, ordering the child to attend his Newmarket, Ont., school in-person this fall.

“School attendance in the midst of a pandemic is a challenging issue for many parents,” Justice Himel wrote in her decision, issued late last month. “Unfortunately, for some separated and divorced parents this is another battleground, one more arena where their child may become the prisoners of the war.”

Melanie O’Neil, the lawyer who represented the mother, said many clients have reached out to her in recent months with concerns that are rooted in personal anxieties. She said parents with different thoughts on mask-wearing, government plans or restricted visits to older relatives are unable to come to a consensus about their children.

“Justice Himel basically set the record straight and said, ‘Let’s look at it from the lens of the particular child. What’s in the child’s best interest?’ And in this case, the child’s best interest was to be with his friends, to attend school in person,” she said.

Two other Canadian rulings have dealt with parents who disagreed over their child’s return to school. In the first, the Quebec Superior Court ruled that the child would have to learn from home because a family member suffered from an autoimmune disease.

But in the second, the same court ordered children back to school because assessing the risk of contamination in schools was the responsibility of government authorities, the judge said.

Canadian Judges Get Creative


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45EDMONTON — Instead of throwing out an old judicial robe, a justice of the Alberta Court of Queen’s Bench has recycled it into a fashion statement that is paying off for local businesses and charities.“After you use a judicial robe for 10 or 15 years it starts to get a bit ratty,” said Justice Rosemary Nation.With some help from a Calgary clothes maker, Nation has turned that ratty robe into facemasks that incorporate the black, red and white sections of the original garment. Some are traditional and some have a little more style.“Some of the women wear tabs that are more lacy, so we did one that was lacy.”Nation ordered judges who wanted a portrait in a fancy facemask to donate at least $2,000 to a local businesses or charity. $97,900 was raised along with a unanimous decision that the idea was a success. “It worked out really well,” Nation says with a smile.It worked so well that it captured the attention of a judge in the United States after he saw pictures of the masks on Twitter.“They’re creative,” says Kevin Burke who is a district court judge in Minnesota “I thought they’re very cool that they’re doing that.”Burke is trying to get a friendly challenge going with his counterparts in Alberta to see who can make better masks, but he says his country is guilty of not having as much material to work with.“We just have plain black robes so it’s going to be very difficult for us to compete with judges in the Edmonton area to show how creative we can be.”Burke says what inspired him to embrace the project is that Nation proved that wearing a mask can actually make people see you better. “She’s creative, she raised a lot of money, but she showed that judges are humans.”

Training Opportunities From The ABA

The ABA Standing Committee on Disaster Response and Preparedness is presenting a month-long virtual disaster symposium in recognition of Preparedness Month. All of these programs will be held via zoom, free of charge to attorneys and non-attorneys alike. Please share with your networks! 

#3 is specific to courts and tech–so check that one out! 

  1. Responding to a Natural Disaster During a Public Health Emergency – A State and Local Government Perspective

Tuesday, September 8, 2020: 1:00 – 2:30 CT

While the nation is focused on its response to COVID-19, state and local governments are faced with new challenges in responding to natural disasters during this public health emergency. This panel will feature perspectives from state and local governments to discuss what they are doing to adequately respond to this added complexity of emergency management. The program will also feature an overview of the FEMA Public Assistance Program, which helps state, local, tribal, and territorial governments and certain types of private nonprofit organizations respond to and recover from major disasters or emergencies. Cosponsored by the ABA State and Local Government Committee.

Moderator: Andrew VanSingel, Chair, ABA Standing Committee on Disaster Response and Preparedness

Speakers: Brock Long, Executive Chairman at Hagerty Consulting, former FEMA Administrator; Christy Rojas, Emergency Management Deputy Director and Emergency Coordinating Officer, Volunteer Florida; Capt. Kevin Sweeney, Commander of Emergency Management and Homeland Security Division; Vance Taylor, Chief, Office of Access and Functional Needs, California Governor’s Office of Emergency Services; Hon. Lina Hidalgo, Harris County Judge; Michelle F. Zaltsberg, Shareholder, Baker, Donelson, Bearman, Caldwell & Berkowitz, PC

  1. Coming Together When We Can’t Be Together—How to Help Disaster Survivors During a Public Health Crisis 

Tuesday, September 15, 2020: 1:00 – 2:30 CT

After a disaster, recovery centers are stood up to bring together agencies that can provide assistance to disaster survivors. Recovery centers are an integral part for the legal community to provide outreach, education, and legal services, as it is an efficient means of finding disaster survivors. A public health emergency like COVID19 may prevent these recovery centers from standing up after a major disaster, which begs the question—How do we find, and help these survivors? This panel will discuss the new ideas and opportunities of helping disaster survivors during an overlapping public health emergency. Cosponsored by the ABA Standing Committee on Legal Aid and Indigent Defendants, the ABA Young Lawyers Division, and the Center for Pro Bono and Public Service.

Moderator: Ted Howard, Chair, ABA Standing Committee on Legal Aid and Indigent Defendants

Speakers: Linda Anderson Stanley, Director, Disaster Legal Services, ABA Young Lawyers Division; Linley Boone-Almaguer, Disaster Assistance Attorney, Edinburg Branch Manager, Texas RioGrande Legal Aid; Mary DeWitt-Dia, Manager, National Partnerships, Disaster Cycle Services, American Red Cross; Miri Miller, Deputy General Counsel, Americas, Dentsu Aegis Network; Free Palmer, Chief, Disaster Recovery Centers Unit, Individuals and Households Branch/ Field Services, Section, Individual Assistance Division, DHS/FEMA; Leslie N. Powell-Boudreaux, Executive Director, Legal Services of North Florida, Inc.; Elizabeth B. Savage, W. C. Dawson Fellow, Disaster Relief Project, Legal Aid of North Carolina, Inc.

  1. Technology and the Courts: Bridging the Gap, or Deepening the Divide?

Tuesday, September 22, 2020: 1:00 – 2:30 CT

COVID-19 has forced court systems across the country to implement a number of changes to help the justice system continue to function in the time of public health crisis. From issuing marriage licenses remotely to conducting jury trials via Zoom, courts are using technology to keep the wheels of justice moving. But with a new way of doing things comes new issues, such as access to technology, access to in-person services, client confidentiality, and cybersecurity, to name a few. This panel will discuss what the courtroom looks like during a pandemic, and if an overlapping natural disaster will augment that playbook. Cosponsored by the ABA Judicial Division.

Moderator: Hon. Rena Van Tine, Associate Judge, Circuit Court of Cook County, Law Division, Law Jury Section

Speakers: Hon. Mark A. Drummond (ret.); Quinten Steenhuis, Clinical Fellow, Suffolk Law School Legal Innovation and Technology Lab; Claudia Johnson, Program Manager, LawHelp Interactive

  1. Who Pays for Disasters, and Who Recovers Fastest

Tuesday, September 29, 2020: 1:00 – 2:30 CT

Disasters are costly, and even though money spent on mitigation can significantly reduce the money spent on response and recovery, disaster response in the United States seems to focus on the latter, creating a financial strain on the federal government. Many individuals lack adequate insurance, and governments can stand behind immunity laws, leaving a hefty price tag, which begs the question—who ultimately pays for disasters? This program will focus on who pays—and who should pay for natural disasters, as well as look into non-financial elements of recovery. The program will conclude with a preview of the ABA’s published Community Resilience Handbook.

Moderator: Andrew VanSingel, Chair, ABA Standing Committee on Disaster Response and Preparedness

Speakers: Daniel Aldrich, Professor and Director of the Security and Resilience Studies Program, Northeastern University; Shelley Ross Saxer, Laure Sudreau Chair in Law, Caruso School of Law; Ed Thomas, General Counsel, Natural Hazard Mitigation Association

  1. Black Lives Matter (In Disasters, Too) – The Intersection of Race and Policy in Disasters (live program was 9/1; recording available to ABA members)

While disasters do not discriminate, recovery does. Studies show that communities of color struggle to recover after natural disasters. This panel will feature a robust discussion on the policy considerations of recovery, and the intersection race and policy in disasters, and how the confluence of COVID19 and future disasters may impact this issue. Cosponsored by the ABA Section of Civil Rights and Social Justice and the Coalition on Racial and Ethnic Justice.

Moderator: Paulette Brown, Senior Partner & Chief Diversity & Inclusion Officer, Locke Lorde; Past President, American Bar Association

Opening Remarks: ABA President Trish Refo

Speakers: Curtis Brown, Co-Founder, Institute for Diversity and Inclusion in Emergency Management (I-DIEM); Abre’ Conner, Staff Attorney, ACLU Foundation of Northern California; Junia Howell, Ph.D. Assistant Professor of Sociology at the University of Pittsburgh; Monica Sanders, Associate Professor Sociology and Criminal Justice, Univ. of Delaware and Lecturer, Georgetown University Law Center.
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Judicial Temperament

The Elements of Judicial Temperament (Part Two)
Wednesday, September 9, 12:00 P.M. PT

BJI’s July 15 presentation on judicial temperament introduced Professor Terry Maroney’s groundbreaking analysis of the elements of judicial temperament, the constellation of psychological traits that predict how judges will respond to the challenges of their work. Professor Maroney explained that while a person’s temperament is largely stable by adulthood, every judge has an “envelope of possibility” in which they can adapt their temperament to the professional requirements and public expectations of judges.

At the conclusion of the presentation, many judges in the audience suggested a follow up program to examine the ways in which judges may understand their own temperamental traits and use that understanding to improve their judicial performance. This is that follow-up program. Once again, Judge Jeremy Fogel, BJI’s Executive Director, and Professor Terry Maroney will discuss Professor Maroney’s cutting edge research.

1.0     hour of CLE credit offered.

(We strongly encourage you to watch the first program before participating in the second.)

Access Professor Maroney’s Article: (What We Talk About When We Talk About) Judicial Temperament

REGISTER HERE

African American Exclusion From Jury Service

Alexis Hoag (Columbia Law School) has posted An Unbroken Thread: African American Exclusion from Jury Service, Past and Present (Louisiana Law Review, Forthcoming) on SSRN. Here is the abstract: The right to an impartial jury and the right to serve on a jury are defining aspects of the American legal system. However, this nation has yet to fully make good on these guarantees to African Americans. Black people are routinely underrepresented in jury pools and Black defendants often face juries that fail to reflect the communities in which they are prosecuted. Despite laws prohibiting racial discrimination in jury selection and legislation to improve jury representation, the under-representation of Black people on juries persists.

This article draws an unbroken thread from the history of total exclusion of Black people from juries to the contemporary under-representation of Black people in jury pools. Historically, the framers excluded Black people from citizenship, and by extension from serving on juries. Although the Reconstruction Amendments extended citizenship rights to African Americans, racially neutral, but vague juror qualifications enabled state officials to continue excluding Black people from juries well into the Twentieth Century. Today, felony disenfranchisement prevents millions of Americans from being eligible to serve on juries, including a disproportionate number of African Americans.

This article argues that policies to increase racial diversity on juries must account for the centuries’ long exclusion of Black people. Such reforms must be large scale and transformational, addressing juror eligibility standards, fair cross section jurisprudence, and policies governing juror summons. Only then can America’s promise to Black people of an impartial jury selected free from racial discrimination be recognized.