The sentencing of the actress Felicity Huffman at least momentarily generated a lot of press coverage. How would you have sentenced her?  Doug Berman has this post at Sentencing Law and Policy, collecting commentary and adding this wise thought of his own:

I continue to be disappointed at our system’s and our society’s general failure to treat and view any sentencing terms other than imprisonment as “real punishment.” Of course, most persons subject to any form of criminal investigation and prosecution will report that the process itself is very often a significant punishment and so too can be any period of supervision and the array of collateral consequences (both formal and informal and often lifetime) that always accompany a criminal conviction. But, problematically, the perception persists that anything other than prison, and often anything less than a lengthy period in prison, is but a trifle.

 

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Michael D. Cicchini has posted Constraining Strickland (7 Texas A&M L. Rev. __ (forthcoming, 2020)) on SSRN. Here is the abstract:

When a convicted defendant pursues an ineffective assistance of counsel (IAC) claim on appeal — for example, by alleging that the defense lawyer failed to call an important witness at trial — the defendant must satisfy Strickland’s two-part test. This requires a showing that (1) defense counsel performed deficiently, and (2) this deficient performance prejudiced the defendant’s case.

The Strickland test is intentionally difficult for a defendant to satisfy, and courts reject nearly all IAC claims. The primary justification for this is that prosecutors and judges should not have to retry defendants because of defense counsel’s errors, as such errors are completely outside the government’s control.

Strangely, however, courts have dramatically expanded their use of Strickland’s two-part test beyond its original purpose. In addition to using it to analyze defense counsel’s performance, courts also use it to blame defense counsel for prosecutorial and judicial misconduct. When a prosecutor cheats or a judge is incompetent, courts turn Strickland’s two-part test on the defense lawyer to answer for the failure to object to the prosecutor’s misconduct or to educate the judge on the spot, in the middle of trial. Strickland, in effect, now requires the defense lawyer to do three jobs in one: his or her own, the prosecutor’s, and the judge’s.

This bizarre expansion of Strickland is not supported by law or logic, and it creates serious problems for defense lawyers. Further, by viewing acts of prosecutorial and judicial misconduct through Strickland’s lens — a framework that was never intended to protect prosecutors and judges from their own misdeeds — courts are also harming defendants’ chances on appeal and damaging the integrity of the criminal justice system.

This Article demonstrates how courts have improperly expanded Strickland, explains the resulting harms, and advocates for clear, simple, and theoretically-sound legal reform. That is, courts must hold prosecutors and judges accountable for their own misconduct, rather than diverting blame to the defense lawyer through Strickland’s ill-suited IAC framework.

The first step toward recovery is to admit you have a problem. As hard as it is to take this step, many courts need to acknowledge that there is a widespread problem with excessive use of fines and fees. Courts created the climate for the problem by too often trumpeting how much revenue we brought in and complaining about how little credit we got. There is a new report from Governing Magazine that details where we are. Here is an excerpt:

All throughout the country, select cities and towns generate substantial fines and other court revenues that fund sizable portions of their budgets. Some are known for issuing lots of speeding tickets. Others raise revenues from parking citations, municipal ordinance violations or traffic cameras.

Five years ago, the issue of excessive fines and fees gained national attention following the civil unrest in Ferguson, Mo., and reports that many St. Louis area municipalities prioritized generating revenues from their courts. No reliable national data quantifying fine revenues for individual governments exists, however.

To better understand the extent to which local governments rely on fines, Governing conducted the largest analysis of fine revenues to date, constructing a database from thousands of annual financial audits and reports filed to state agencies. We found that for hundreds of mostly small cities and towns, fines are a critical source of funding, at times accounting for more than half of all general revenues.

 

Cynthia Lee (George Washington University Law School) has posted Probable Cause with Teeth on SSRN. Here is the abstract:

Recent incidents involving African Americans who were arrested by police for engaging in activities that rarely lead to police intervention when individuals who are not African American engage in similar activities highlight the need for clarity regarding how much certainty of guilt is required before an officer can arrest an individual. The Supreme Court, however, has provided very little guidance on exactly how much certainty of guilt is required to establish probable cause, stating only that probable cause is more than a mere suspicion but less than proof needed to convict. In 1983, Justice Rehnquist lowered the bar significantly when he opined in Texas v. Brown that probable cause “does not demand any showing that such a belief be correct or more likely true than false.” Many lower courts have repeated Justice Rehnquist’s comment on probable cause as if it were settled law. In doing so, very few seem to recognize that Texas v. Brown was just a plurality opinion and the meaning of probable cause was not the main issue before the Court.

 
This Article argues that Justice Rehnquist’s musings on the meaning of probable cause in Texas v. Brown should not be followed for several reasons. First, thirty-five years ago, Justice Rehnquist was only able to get three other Justices to sign onto his opinion. Texas v. Brown was just a plurality opinion, and his statement on the showing required for a finding of probable cause was not necessary to the judgment. More importantly, a majority of the Court has never repeated Justice Rehnquist’s statement that probable cause means something less than the preponderance of the evidence standard required in civil cases. Second, Justice Rehnquist’s view of probable cause is wrong as a matter of history, precedent, and logic. Third, Justice Rehnquist’s view of probable cause allows for, and perhaps even encourages, racial disparity in arrests. A more robust showing should be required for a finding of probable cause.

There is a  new report from The Criminal Justice Policy Program at Harvard Law School on fine and fee reform. Many jurisdictions have made major changes on how they approach fines and fees. Suffice it to say there is no simple solution.   Here is how the 80-page report is described on this webpage:

Proportionate Financial Sanctions: Policy Prescriptions for Judicial Reform sets forth a new vision for the role courts must play in ensuring proportionate policies and practices for imposing and enforcing monetary sanctions.  This report is a tool for judges, lawmakers, practitioners, and advocates who are pushing for changes in state and local courts, and offers concrete reforms that judges can implement on their own, without legislative action, to ensure that financial sanctions are more proportionate and fair, and to prevent the worst harms that excessive fines and fees can create for poor people.  Adoption of CJPP’s recommended reforms would, on the whole, transform judges’ thinking about monetary sanctions and their impact on the poor.

Overall, the goal of this new framework is to move judicial culture away from the punitive nature of current systems, and towards policies and practices built on proportionality, fairness, and the desire to see individuals complete their sentences and move on with their lives.  While recognizing the need for certain foundational changes (such as eliminating all revenue-raising fees and surcharges, and decreasing the number of cases in the system through decriminalization and diversion), this report details specific actions that can and should be taken immediately by the courts to reduce the consequences of disproportionate monetary sanctions, absent legislative action. Using CJPP’s experience working with different jurisdictions and other reform efforts nationwide as a guide, this report advocates for holistic, comprehensive, and meaningful changes to how courts think about proportionate sentencing, alternatives to payment, monitoring of payment, responses to non-payment, and punitive enforcement mechanisms.  If implemented robustly, these reforms would radically change individuals’ experiences with criminal legal systems.

Steven Penney (University of Alberta – Faculty of Law) has posted Driving While Innocent: Curbing the Excesses the ‘Traffic Stop’ Power (Forthcoming, Canadian Criminal Law Review/Revue canadienne de droit pénal) on SSRN. Here is the abstract:

Canadian police have exceptionally broad powers to stop and investigate motorists for driving related offences without objective suspicion of wrongdoing. Though extraordinary, the “traffic stop” power has survived constitutional challenge on the basis that driving is dangerous and thus requires extensive regulation and surveillance. Because it is intrinsically arbitrary, however, courts have attempted to cabin its reach to driving related offences. But under the “dual purpose” doctrine, they have also allowed police to use information gleaned from lawful traffic stops to develop grounds for other detention and search powers, as long as they do not do so “pretextually,” i.e., by taking investigative steps that serve no traffic safety purpose.

In practice, however, courts have often permitted investigative intrusions that are at best tenuously connected to traffic safety.

This has encouraged police to leverage the stopping power to further vague suspicions of criminality and gather general intelligence, especially in the context of “roving” patrols of high crime neighbourhoods and major highways. Most disturbingly, there is mounting evidence that this practice is associated with discriminatory racial profiling. I therefore propose prohibiting police from: (i) conducting roving, suspicionless stops; (ii) using drivers’ compelled identifying information to conduct database searches for non-driving offences; (iii) questioning drivers about matters unrelated to traffic safety; and (iv) interacting with passengers without grounds to believe that they have committed an offence or threaten public safety.

It is not easy to rule on a pretrial motion that an expert should not be allowed to testify. Yet we know that in criminal cases experts have at times contributed to wrongful convictions. Jason Chin, Michael Lutsky and Itiel Dror (Sydney Law School, University of Toronto – Faculty of Law and University College London (UCL)) have posted The Biases of Experts: An Empirical Analysis of Expert Witness Challenges (Manitoba Law Journal, Forthcoming) on SSRN. Here is the abstract:

Biased expert witnesses pose a distinct challenge to the legal system. In the criminal sphere, they have contributed to several wrongful convictions, and in civil cases, they can protract disputes and reduce faith in the legal system. This has inspired a great deal of legal-psychological research studying expert biases and how to mitigate them. In response to the problem of biased experts, courts have historically employed procedural mechanisms to manage partiality, but have generally refrained from using exclusionary rules. Canada diverged from this position in 2015, developing an exclusionary rule in White Burgess Langille Inman v Abbott and Haliburton Co. In this article, we assembled a database of 229 Canadian bias cases pre- and post-White Burgess to evaluate the impact that this case had on the jurisprudence.

The data suggests that White Burgess increased the frequency of challenges related to expert biases, however, did not noticeably affect the proportion of experts that were excluded. This suggests that the exclusionary rule introduced in White Burgess did not significantly impact the practical operation of expert evidence law, as it pertains to bias. We conclude by recommending that one way for courts to better address the problem of biased experts is to recognize the issue of contextual bias.

The California Supreme Court ruled that law enforcement agencies can alert prosecutors that an officer expected to testify has a history of misconduct, overturning an appeal court’s decision that banned such disclosures. The Los Angles Times story begins:

The California Supreme Court decided unanimously Monday that the Los Angeles County Sheriff’s Department and other law enforcement agencies may alert prosecutors that a deputy who might testify in a criminal case has a history of misconduct.

The decision was narrow, holding only that state confidentiality laws permit law enforcement agencies to alert prosecutors when an officer who is a potential witness has something in his or her background that might affect the outcome of the case.

Legal analysts said the ruling was likely to benefit the defense and possibly change the outcome of some cases but would not assure that relevant information about errant officers is disclosed.

The case before the court stemmed from a lawsuit filed by the L.A. deputies union to prevent former Sheriff Jim McDonnell from turning over to the district attorney about 300 names of deputies with a history of misconduct.

From Judge Wayne Gorman:

In Review of Sentencing for Murder and Manslaughter, 2019, the New South Wales Sentencing Council (http://www.sentencingcouncil.justice.nsw.gov.au/), undertook “to review sentencing for murder and manslaughter, including the penalties imposed for domestic and family violence homicides”.  In doing so, the Council called for submissions.

The Rape & Domestic Violence Services, Australia, filed a preliminary submission.

Interestingly, in its submission the Service indicated that it is “concerned that many judicial officers prescribe to outdated views about domestic and family violence that may impact their assessments of sentencing factors such as culpability, harm, risk and social costs”.  As examples, the Service referred to the sentencing remarks that it indicates are “commonly made”:

Minimised perpetrator accountability. For example, judges often characterised domestic violence as a “loss of control” or described perpetrators as motived by innocent intentions such as “jealousy.” This type of language masks the true dynamics of domestic violence as an attempt to maintain power and control, motivated by a perpetrators’ belief that he is entitled to possess or control his partner.

Used mutualising language. For example, judges regularly attributed violence “to a relationship” rather than to the perpetrator, by using terms such as “violent relationship”, “turbulent relationship”, or “rocky relationship”. Given that the vast majority of cases of intimate partner homicide involve a clear primary domestic violence victim and a primary domestic violence abuser, this mutualising language is inaccurate and places inappropriate blame on the victim.

Invoked stereotypes. For example, judges often reflected problematic stereotypes about how “proper victims” should behave. In one case, a judge indicated that the victim was too “young” or “inexperienced” to appreciate the danger posed by her abusive partner and suggested that if she “knew better” she would have ended the relationship prior to her death. This ignores the dynamics of power and control central to domestic violence as well as the risks associated with leaving a relationship.

Minimised non-physical domestic violence. For example, judges described perpetrators who primarily used non-physical forms of domestic violence as controlling and manipulative but not “violent”. This overlooks the relevance of non-physical forms of domestic violence as risk factors in the period prior to homicide.

The Rape & Domestic Violence Services suggested that as “Buxton-Namisnyk and Butler write, ‘judicial officers wield significant social power with respect to discussing, naming and representing domestic violence.’ In order to shift social understandings of domestic violence in the right direction, it is imperative that judges use their sentencing remarks to”:

• Reinforce that domestic violence is unacceptable;

• Hold perpetrators accountable and recognise the centrality of power and control in domestic violence related homicides;

• Reject justifications for domestic and family violence that minimise perpetrator accountability such as that violence is caused by a “loss of control” or drugs or alcohol;

• Reflect the value of the victim’s life and avoid victim-blaming judgments;

• Recognise that non-physical forms of violence can be equally, if not more, damaging than physical violence; and

• Recognise the significant impact that domestic and family violence has on society.