The law, in its majestic equality, forbids all men to sleep under bridges, to beg in the streets and to steal bread-the rich as well as the poor.

Fines and fees are part of many courts. As illustrated by this story increasingly courts are examining how much is too much. Progress in Alabama in the fight over excessive fines. “Lawmakers should follow Jefferson County’s example, examine data from all jurisdictions, and decide which of the many fines and fees they’ve added on over the years are due to be trimmed. Giving this hidden tax system a much-needed haircut wouldn’t cost money: Our research shows that excessive fines and fees result in uncollectible debt rather than creating additional revenue.” ALABAMA DAILY NEWS

Every trial judge is confronted with similar challenges. Presiding over cases with really good lawyers who are great writers and accomplished orators is frankly pretty easy…….yes it is even fun. But how do you effectively deal with the other end of the spectrum? Poorly prepared lawyers and or self represented litigants who regularly appear before you can make even the best trial court judge think about the benefits of being on an appellate bench appointment.

So let’s try a simple example and share our thoughts and expertise. A landlord appears before you semi regularly and pretty consistently makes mistakes but when you point out that, for example, service is not proper the retort is “Court administration told me this is what I should do.” Attacks on court employees is one of the triggers that upset you. How should a good trial judge handle this situation.

Please post your thoughts

From The Sentencing & Policy blog: The title of this post is the title of this recent article by Michael O’Hear posted a couple months ago to SSRN. Here is its abstract:

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean?  The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions.  In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment.  The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution.  However, the promise of Bajakajian has been undermined in the lower courts.

This Article presents the first systematic analysis of how Bajakajian has been interpreted and applied by the federal circuit courts of appeals.  The Article shows that, at practically every turn, the circuit courts have adopted narrowing interpretations of Bajakajian, which have largely negated the practical significance of the Eighth Amendment ban on excessive fines.  Indeed, in some important respects, the circuit-court opinions more closely resemble the dissenting than the majority opinion in Bajakajian.  The Article concludes with a consideration of what the Supreme Court might do in response to the circuit-court cases, from acquiescence to simple reaffirmation of Bajakajian to the development of an even more robust and easily enforceable approach to the Eighth Amendment right. 

Jenia Iontcheva Turner (Southern Methodist University – Dedman School of Law) has posted The Emerging Constitutional Law of Remote Criminal Justice (Wake Forest Law Review, Vol. 59, No. 3, 2024) on SSRN. Here is the abstract:

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings.

As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of cases addressing due process, confrontation, and right to counsel challenges to remote criminal proceedings. It analyzes courts’ reasons for granting or denying such challenges in decisions rendered by state and federal courts in 2020-23. The Article evaluates the decisions in light of relevant empirical research and then offers a framework to guide the emerging doctrine. It identifies several areas in which constitutional doctrine needs to be elaborated to provide greater transparency, predictability, and fairness. A coherent framework, informed by both research and precedent, can help ensure that the use of novel technologies to conduct criminal proceedings remains consistent with constitutional values.

State v. Luthi, Washington Supreme Court
Decided that an in-court holding cell undermines the presumption of innocence, limits defendants’ ability to confer confidentially with counsel, and is contrary to the “formal dignity” of the courtroom in which defendants are treated respectfully. To satisfy due process, a trial court must engage in an inquiry before every hearing to determine if there are extraordinary circumstances justifying courtroom restraints. // Seattle Times

The Judge’s order is five pages long and well worth reading in its entirety. Many judges….perhaps most judges… never issue a gag order. But there lessons each of us can learn about how to appropriately deal with a litigant like former President Trump. The most important  lesson is DO NOT LOSE YOUR COOL. (caps used  in deference to Truth Social messages). 

Judge Merchan in his order  addresses the importance of protecting the First Amendment rights of political candidates: “Courts are understandably concerned about the First Amendment rights of a defendant, especially when the accused is a public figure … that is because ‘the impact of an indictment upon the general public is so great that few defendants will be able to overcome it, much less turn it to their advantage.” But, he concludes, “The circumstances of the instant matter, however, are different. The conventional ‘David vs. Goliath’ roles are no longer in play as demonstrated by the singular power Defendant’s words have on countless others.”

So what would you do? Feel free to leave a comment. 

Donald Trump launched yet another attack against the daughter of New York Supreme Court Justice Juan Merchan, who is overseeing the trial regarding the former president’s alleged hush money payments to adult film actress Stormy Daniels,” Rolling Stone reports. “The post included photos of Merchan’s daughter… Trump has attacked the judge’s daughter at least three other times in the last week.”

Judges refraining from engaging in partisan politics is imperative. But what should judges do, if anything, when their families become the ire of a litigant? Federal Judge Reggie Walton recently spoke up. https://www.cnn.com/2024/03/29/politics/federal-judge-donald-trump-rebuke/index.html. There was an inordinate amount of media coverage to his remarks but what I strongly suspect is there are thousands of judges who totally agree with him. Our families….and our children…..are off limits.

It was a little covered story and from a legal standpoint not a particularly noteworthy result. But Chief Justice Roberts, in a rare “in-chambers opinion” (a writing accompanying a circuit justice’s solo order), denied emergency relief to Peter Navarro—who had sought to be kept out on bail while he appeals his conviction for contempt of Congress. Chief Justice Roberts’s decision was the first in-chambers opinion since 2014(!). This might this be a good opportunity for all judges to reflect on how they might improve their own judicial practice. Procedural fairness research shows that explanations are an important component to achieving litigant satisfaction. No explanation leaves a litigant to wonder why and that wondering can be destructive. “I lost because the judge was a woman” “I lost because that judge was (or is) a Republican”. Etc. So good for you Chief Justice Roberts!  Hopefully your decision to include an albeit brief explanation will motivate other judges as well.

among the must check blog sites for judges is the Sentencing Law & Policy blog of Professor Doug Berman. The title of a recent post of professor Berman is the title of this new essay appearing in Judicature authored by Jeffrey Bellin. The essaay draws from Bellin’s recent book, “Mass Incarceration Nation: How the United States Became Addicted to Prisons and Jails and How it Can Recover.”  Here is a section from start and from the close of this essay:

While people readily recognize the contributions of legislators, police, and prosecutors to incarceration rates, the role played by judges is obscured by a variety of factors.  One obscuring factor is that the American criminal justice system is not a system at all, but the illusion of a system generated by the interconnected decision-making of a series of independent officials, each with distinct roles.  This independent interdependence makes it hard to hold any single official actor responsible for over-incarceration.  Legislators enact criminal laws, police make arrests, prosecutors charge, and judges sentence; but each actor can point to someone else to explain why any particular individual gets locked up….

While their individual contributions can get lost in the day-to-day bureaucracy of the modern American “system,” judges play a substantial role in how many people are locked up.  And it is helpful to spotlight that role so that judges can be conscientious in assessing their contributions to the country’s incarceration rate and potential role in reducing it….

Of course, judges do not bear sole responsibility for incarceration rates. Mass Incarceration Nation highlights the role of all the officials in the criminal justice system, including legislators, police, and prosecutors, as well as the important role — spanning the book — played by a transient crime spike and the American public’s reaction to that spike. One of the book’s core arguments is that “it takes a village to send someone to prison.”  Every official actor had to cooperate to fill the nation’s prisons.  In a nutshell, that’s what happened.

But the book includes chapters on the important role played by judges.  After all, it is hardly controversial to recognize that judges matter; elevation to a judicial post is a much sought after, and properly celebrated, pinnacle of a legal career.  No one would seek the position if judges didn’t have a substantial influence on the cases that came before them.  Thus, it should be no surprise that judges played an important role in the country’s incarceration explosion.  The good news is that judges can help the country return to its historical norm of low incarceration rates. When that happens, the American criminal justice system will once again be recognized for its best features, not its bloated incarceration rate.