From Professor Doug Berman’s Sentencing Law & Policy blog, “A helpful reader made sure I did not miss this How Appealing post flagging the fascinating split Second Circuit panel ruling yesterday in US v. Manzano, No. 18-3430 (2d Cir. Dec. 18, 2019).  The start of the majority opinion sets forth the basics:

Respondent Yehudi Manzano stands charged with production of child pornography, an offense punishable by a mandatory minimum term of fifteen years’ imprisonment, and transportation of child pornography, which is punishable by a mandatory minimum term of five years’ imprisonment.  Shortly before trial, he filed motions requesting permission to argue for jury nullification — in essence, that the jury should render a verdict not in accordance with the law — and to present evidence regarding the sentencing consequences of a conviction in this case.  On the eve of trial, the district court (Underhill, Chief Judge) granted Manzano’s request to argue jury nullification, but reserved decision on the admissibility of evidence regarding the sentencing consequences of a conviction.

The government now seeks a writ of mandamus directing the district court to (1) preclude defense counsel from arguing jury nullification, and (2) exclude any evidence of sentencing consequences at trial.  Applying settled law in this circuit, we hold that the government has a clear and indisputable right to a writ directing the district court to deny defense counsel’s motion for leave to argue jury nullification, and that the other conditions for mandamus relief are satisfied.  We further hold that, at this time, the government does not possess a clear and indisputable right to a writ directing the district court to exclude any evidence of sentencing consequences.

Here is the start of Judge Barrington Parker’s partial dissent:

We are fortunate that the prosecutors in this Circuit nearly always bring a high degree of professionalism, good judgment, and common sense to bear in the exercise of their responsibilities.  This case presents the unusual circumstance where a conscientious jurist is confronted with a charging decision that, in his considered judgment, reflects an abuse of prosecutorial power.  Charging decisions are, of course, by and large the exclusive province of prosecutors.

There is a straightforward solution that could avoid the problems raised by the petition and discussed in this dissent.  The petition should be held in abeyance and the case remanded to the District Court, at which time the prosecutors could revisit their charging decision. If they chose not to do so, they could provide information as to why they believed their decision was appropriate. If this approach did not resolve the problem, this Court could then revisit the petition.

Faced with the Government’s charging decision, Judge Underhill could, I suppose, have acquiesced in whatever the prosecutors wanted.  But he is not a piece of Steuben glass. Instead, witnessing what he perceived to be abuse, he pushed back.  I believe that most conscientious jurists would have done the same.  I have no difficulty concluding that Judge Underhill was right to do so.  “[F]ederal courts have authority under their supervisory powers to oversee the administration of criminal justice within federal courts.”  United States v. Johnson, 221 F.3d 83, 96 (2d Cir. 2000) (quoting Daye v. Attorney Gen., 712 F.2d 1566, 1571 (2d Cir. 1983)).  They should use these powers “to see that the waters of justice are not polluted” and “to protect the integrity of the federal courts.” United States v. Payner, 447 U.S. 727, 744 (1980); accord United States v. HSBC Bank USA, N.A., 863 F.3d 125, 135 (2d Cir. 2017).  Their supervisory powers are not restricted to the protection of explicit constitutional rights.  McNabb v. United States, 318 U.S. 332, 341 (1943).  The powers exist “in order to maintain respect for law” and to “promote confidence in the administration of justice.”  Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); accord Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974); United States v. Getto, 729 F.3d 221, 229 (2d Cir. 2013).  The supervisory powers should be sparingly exercised.  HSBC, 863 F.3d at 136.  Judges are not, of course, free to disregard the limitations of the law they are charged with enforcing under the guise of exercising supervisory powers or at other times.  Payner, 447 U.S. at 737.  But since Payner, we have recognized that within their supervisory powers, courts should “not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standards of fairness.” Johnson, 221 F.3d at 96 (quoting United States v. Lawlor, 168 F.3d 633, 637 (2d Cir. 1999)). This requirement applies with particular force in contexts such as charging and sentencing, especially those involving mandatory minimum sentences, where the Government plays an “often decisive role.” Id.

Whether Judge Underhill went too far is debatable.  But because this case does not come close to meeting the exacting standards for mandamus, I respectfully dissent from the majority’s grant of a writ directing the District Court to allow no arguments for jury nullification.  I concur to the extent that the majority denies a writ directing the District Court to exclude at trial evidence of sentencing consequences.

This local article about the ruling reports that the defendant’s lawyer is going to seek en banc review. I am not optimistic the full Second Circuit will take up this matter or resolve it different, but I would like to see these issues get a lot more attention particularly in light of recent Sixth Amendment jurisprudence.  Notably, in the recent Haymond case, Justice Gorsuch spoke broadly about the Framers’ vision of the jury right and explained: “Just as the right to vote sought to preserve the people’s authority over their government’s executive and legislative functions, the right to a jury trial sought to preserve the people’s authority over its judicial functions.” But how can the people have authority over the judicial function if they are not fully informed of their rights and authority as jurors and not made aware of the possible consequences of their decisions?

An inherent powers lawsuit that challenges the appropriateness of court funding has been described by some as the nuclear option of court funding.  Rarely is this tactic tried and now we have Kansas. By the Associated Press:

Six trial-court judges in Kansas have filed a lawsuit against the state Legislature in hopes of forcing it to increase funding for the court system.

The judges filed the lawsuit Friday directly with the Kansas Supreme Court. The lawsuit alleges that state lawmakers have chronically underfinanced the judicial branch.

The judges asked the state’s highest court to force legislators to consider funding “independent of unrelated political agendas.” The Supreme Court itself has already proposed an $18 million increase in the court system’s budget. Much of the proposed funds would go toward increasing pay for both judges and court staff.

 

I have written about this issue before but wanted to share with you my most recent commentary.  What is occurring in Minnesota is not peculiar to our state.  Fairness in the criminal justice system isn’t easy to achieve. I  reject the thought that the problem of racially profiled stops is simply a police problem. All of the leaders of the justice system have a responsibility to do better than we are currently.  Please feel free to share the commentary as well as sharing any thoughts with me about the piece. https://www.minnpost.com/community-voices/2019/12/civil-liberties-and-racial-disparities-its-time-to-rethink-polices-use-of-vehicle-stops/

Thanks & Happy Holidays,

Kevin

THE HISTORY OF RACIAL AND ETHNIC

DISPARITIES (RED) IN TREATMENT COURTS

Racial and Ethnic Disparities (RED) in policing practices,

arrest and conviction rates, sentencing norms, and incarceration

trends have continuously had a negative impact on racial and

ethnic minorities.1 Treatment courts, unfortunately, have also

experienced RED in outcomes (e.g. minorities graduating

programs at a lesser rate than Caucasians). To their credit, treatment

courts have taken a proactive, advocacy approach in

researching and eliminating the problem to assure equal access

and effective treatments for all participants. The first treatment

court was a drug court that began in 1989 in Miami-Dade

County, Florida. Since then, drug courts have been rigorously

evaluated, and in the past 30 years research has demonstrated

that drug courts are more effective than traditional criminal

justice interventions (e.g. probation) at reducing criminal

recidivism rates for individuals who have substance use disorders.

2 As a result of the success of drug courts, other treatment

court models were developed, such as mental health courts,

family dependency treatment courts, veterans treatment courts,

and DWI (driving while intoxicated) courts, to name a few.

Although research has continuously shown that treatment

courts are effective, there is an unfortunate trend in some

treatment courts where RED exist. These disparities are primarily

present in participants who have access to the programs,

completion rates, and criminal recidivism outcomes. It is

important to mention, however, that the majority of research

on RED is focused on adult drug courts, which is not surprising,

considering they are the most common type of treatment

court. The findings, however, from previous research and

recommendations to eliminate RED in outcomes may be

applicable to all types of treatment courts, as they operate under

the same, or similar, key components (e.g. frequent status hearings

with a judge, random and frequent drug testing,

court-ordered counseling, offering sanctions and incentives).

The presence of RED in treatment court outcomes is not a new

phenomenon. For the full study:

http://ndcrc.org/wp-content/uploads/2019/07/Racial-and-Ethnic-Disparities-Issue-Brief.pdf

The Oregon Supreme Court’s decision last month to restrict the scope of questions police officers can ask during traffic stops could reduce the racial disparities that have undermined community confidence in Portland’s police department. PORTLAND MERCURY

“Under fire Quebec Appeal Court won’t suspend contested secularism bill”

Monday, December 16, 2019 @ 1:27 PM | By Luis Millan

A divided Quebec Court of Appeal, grappling with a series of controversial complaints against its chief justice, has refused to stay sections of the province’s secularism bill even though it acknowledges that the controversial ban on religious symbols is causing irreparable harm to some people.

The decision comes on the heels of a series of complaints lodged against Court of Appeal Chief Justice Nicole Duval Hesler before the Canadian Judicial Council over bias she has allegedly demonstrated against the province’s secularism law.

“It is obvious that the ethics process is being exploited by people who are fully aware of the consequences,” said Emmanuelle Bernheim, a law professor at the Université de Québec à Montréal who co-wrote the book Applied Judicial Ethics. “The chances that the complaints will go anywhere are very limited. But the consequences, or potential consequences, go beyond the question of laicity. It seems to me that it brings into question the legitimacy of the courts in general. It’s very disturbing.”

Hayden Henderson, Natalie Russo and Thomas D. Lyon (University of Southern California – USC Gould School of Law, University of Southern California – USC Gould School of Law and University of Southern California Gould School of Law) have posted Forensic Interviewers’ Difficulty with Invitations: Faux Invitations and Negative Recasting (Forthcoming, Child Maltreatment) on SSRN. Here is the abstract:

An ongoing challenge for forensic interviewers is to maximize their use of invitations, such as requests that the child “tell me more about” details mentioned by the child. Examining 434 interviews with 4- to 12-year-old children questioned about abuse, this study analyzed (1) faux invitations, in which interviewers prefaced questions with “tell me” but then asked a non-invitation, (2) negative recasts, in which interviewers started to ask an invitation but then recast the question as a wh- or option-posing question and (3) other aspects of questions that may relate to productivity independent of their status as invitations. About one fourth of “tell me” questions were faux invitations and over 80% of recasts were negative. The frequency of both faux invitations and negative recasts increased during the substantive phase of the interviews, and these were related to decreased productivity, increased non-responsiveness, and increased uncertainty. In contrast, use of exhaustive terms (e.g., “tell me everything”) and non-static questions (e.g., about actions) were related to increased productivity. The results suggest that training should teach interviewers when and how strategic use of invitations and other question-types can elicit specific types of forensically relevant information.

Megan T. Stevenson and Jennifer L. Doleac (George Mason University – Antonin Scalia Law School, Faculty and Texas A&M University – Department of Economics) have posted Algorithmic Risk Assessment in the Hands of Humans on SSRN. Here is the abstract:

We evaluate the impacts of adopting algorithmic predictions of future offending (risk assessments) as an aid to judicial discretion in felony sentencing. We find that judges’ decisions are influenced by the risk score, leading to longer sentences for defendants with higher scores and shorter sentences for those with lower scores. However, we find no robust evidence that this reshuffling led to a decline in recidivism, and, over time, judges appeared to use the risk scores less. Risk assessment’s failure to reduce recidivism is at least partially explained by judicial discretion in its use. Judges systematically grant leniency to young defendants, despite their high risk of reoffending. This is in line with a long standing practice of treating youth as a mitigator in sentencing, due to lower perceived culpability. Such a conflict in goals may have led prior studies to overestimate the extent to which judges make prediction errors. Since one of the most important inputs to the risk score is effectively off-limits, risk assessment’s expected benefits are curtailed. We find no evidence that risk assessment affected racial disparities statewide, although there was a relative increase in sentences for black defendants in courts that appeared to use risk assessment most. We conduct simulations to evaluate how race and age disparities would have changed if judges had fully complied with the sentencing recommendations associated with the algorithm. Racial disparities might have increased slightly, but the largest change would have been higher relative incarceration rates for defendants under the age of 23. In the context of contentious public discussions about algorithms, our results highlight the importance of thinking about how man and machine interact.

We are pleased to announce that the videos from the education sessions at the conference in Chicago in September are available to watch on AJA’s website at http://www.amjudges.org/conferences/2019-Annual/education-materials.html. Just click on “Watch Education Sessions” at the top of the page and you can choose the session you wish to view.