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.

California Supreme Court Ends Cash Bail for Some Who Cannot Afford to Pay

From the Brennan Center
On March 25, the California Supreme Court unanimously held that courts may not jail people charged with a crime in pre-trial detention solely because they cannot afford to pay bail.
“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” the justices said. Instead, “the court must consider the arrestee’s ability to pay the stated amount of bail—and may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.”
The court’s decision was made in the case of Kenneth Humphrey, who was accused of stealing $7 and a bottle of cologne from his neighbor in 2017. His bail was initially set at $600,000, though it was later reduced to $350,000. The decision also comes just a few months after California voters rejectedProposition 25, which would have entirely ended the use of cash bail and required statewide use of controversial risk assessment tools.

“Judging by the Cover: On the Relationship Between Media Coverage on Crime and Harshness in Sentencing”

Does media coverage of crime lead to harsher sentences? One would like to think that judges are not influenced by media coverage but ruling it totally out is perhaps a bit naive. There is an interesting  paper  exploring this issue posted on SSRN authored by Itay Ravid. Here is its abstract:

Does the mass media affect judicial decisionmaking?  This first of its kind empirical study delves into this long-lasting question, and investigates the relationship between media coverage of crime and criminal sentencing.  To do so, I construct a novel data set of media reports on crime, which I link to administrative state court sentencing records. The data span five years and more than forty-three thousand sentencing decisions across three jurisdictions that differ in their judicial selection models: Pennsylvania, Maryland, and Virginia. 

I find that crime coverage increases sentencing harshness. I also find evidence to suggest that this effect is mitigated through a state’s method of judicial selection.  The findings go beyond traditional, case-study scholarship on the nexus between the media and the judiciary, offering evidence that the media can affect judicial decisionmaking in broader contexts.  These findings hold significant implications for policy and judicial politics and raise questions at the core of the criminal justice system.  Particularly, they call for renewed attention to the media as an important factor in the criminal process and a potential obstacle towards achieving the constitutional ideal of fair trials.  The Article concludes by suggesting methods for countering such media effects.

Should We Abolish The Crime Of Disorderly Conduct?

Disorderly conduct may well be one of the most frequent misdemeanor charges. So why would anyone suggest that disorderly conduct as a charge be abolished? Whether you ultimately agree there is a need for reform or not  this new article by Rachel Moran recently posted to SSRN is thought provoking.   Here is its abstract:

Disorderly conduct laws are weapons the powerful wield against the unpopular. All fifty states and many municipalities have disorderly conduct laws that criminalize speech and conduct ranging from unreasonable noise to opprobrious language.  Although these laws are facially neutral, their astounding breadth and vagueness serve as a rubber stamp for law enforcement to surveil and criminally charge marginalized people.  Their targets include communities of color, people with unpopular religious or political beliefs, and people whose mental health struggles render them incapable of complying with societal expectations of order.

While courts and scholars have criticized these laws for decades, none have explicitly called for their abolition.  This article does so.  The article examines both the constitutional flaws of disorderly conduct laws and the many societal harms they enable, before ultimately concluding that any minimal good they accomplish cannot justify the damage they inflict.

Amidst a growing national reckoning over the crisis of abusive and discriminatory policing, this article provides a timely critique of the criminal laws that empower such policing.  It uses disorderly conduct laws as a lens through which to examine the extraordinary costs of overcriminalization and the vulnerable people who most often bear the brunt of such costs.  While disorderly conduct laws are not the only criminal laws legislatures should consider eliminating, they are both constitutionally and socially problematic to a degree few other criminal laws achieve

Junk Science At Sentencing

Maneka Sinha (University of Maryland Francis King Carey School of Law) has posted Junk Science at Sentencing(George Washington Law Review, Vol. 89, No. 1, 2021) on SSRN. Here is the abstract: 

Junk science used in criminal trials has contributed to hundreds of wrongful convictions. But the problem is much worse than that. Junk science does not only harm criminal defendants who go to trial, but also the overwhelming majority of defendants—over ninety-five percent—who plead guilty, skip trial, and proceed straight to sentencing.

Scientific, technical, and other specialized evidence (“STS evidence”) is used regularly, and with increasing frequency, at sentencing. Despite this, Federal Rule of Evidence 702 and its state equivalents—which help filter unreliable STS evidence at trials—do not apply at the critical sentencing stage. In fact, at sentencing, no meaningful admissibility standard guards against junk science deciding punishment. Over ninety-five percent of defendants, therefore, do not get the basic protection against faulty STS evidence that trial defendants get. This may result in harsher sentences based on junk science that has been admitted and considered without any screening or vetting.

This Article offers the first in-depth exploration of STS evidence at sentencing. It links two bodies of literature: the first analyzing the negative effects of junk science on the reliability of trials and the second arguing for extending procedural protections to sentencing. This Article builds upon these literatures by proposing an implementable mechanism for evaluating STS evidence at sentencing while retaining special protections for criminal defendants. The Article recommends that Federal Rule of Evidence 702 (or its state analog) apply at sentencing to determine the admissibility of STS evidence offered in support of harsher punishment, but not to such evidence offered by defendants as mitigation.

Bail Decisions Need To Reflect Ability To Pay

The California Supreme Court ruled unanimously ruled that judges must consider a suspect’s ability to pay when setting bail, essentially suggesting that non-dangerous defendants who cannot afford bail should be released under other conditions.“The common practice of conditioning freedom solely on whether an arrestee can afford bail is unconstitutional,” Justice Mariano-Florentino Cuéllar wrote in the opinion.The justice specifically noted other conditions under which defendants can be released, including electronic monitors, regular check-ins, community shelters and drug and alcohol treatment.The decision upheld a ruling from a San Francisco-based state court of appeal panel which found that Kenneth Humphrey, who was jailed for more than eight months because he couldn’t pay a $350,000 bail for charges of stealing $5 and a bottle of cologne from a neighbor, could be released with an ankle monitor because he could not pay the money, the Los Angeles Times and The Associated Press reported.

If The Police Shoot You That Is A Seizure

The fact situation is tragic and quite unique. But  The U.S. Supreme Court yesterday  sided with a New Mexico woman who brought a civil case against the police officers who shot her during a high-speed chase. SCOTUSBLOG The deadly force the officers used trying to arrest her could constitute an unconstitutional “seizure” under the Fourth Amendment justifying a civil lawsuit, the court ruled in a 5-3 decision. THE NEW YORK TIMES You can read the ruling here:  U.S. SUPREME COURT

ABA Task Force On Plea Bargaining

There is a Call for Comment from the American Bar Association Criminal Justice Section’s Plea Bargaining Task Force:

The American Bar Association Criminal Justice Section has created a task force to more closely examine the role of plea bargaining in our modern system of criminal justice.  Its goal is to develop both broad policy oriented goals for the criminal justice system and, where necessary, specific recommendations for changes in the way plea bargaining operates within the larger criminal justice environment.  These issues will be examined from the perspective of all those involved in the criminal justice system, including prosecutors, defenders, defendants, judges, victims, and others.

To date, the task force has had the opportunity to hear from a number of advocacy groups, researchers, and policy makers regarding the benefits of the plea bargaining system, the negative consequences resulting from our reliance on plea bargaining and the current structure of the plea bargaining system, and potential reforms and paths forward.  To ensure that as wide a possible audience is able to voice concerns, perspectives, and ideas about the plea bargaining system as the task force begins drafting its report and recommendations, we encourage those interested to provide written comments to us.

Comments should be in written form and should be submitted to the Task Force’s Reporter, Professor Thea Johnson (thea.johnson @ rutgers.edu) by April 15, 2021.  Written comments may address any aspect of the plea bargaining system that the drafter believes will assist the committee in its work.  Please note that the task force intends to create a publicly accessible website with information about the work of the task force, the task force’s report, materials from the presentations that were made before the task force, and materials submitted for the task force’s consideration.  We hope that this repository will be a valuable tool for those interested in plea bargaining.  As a result, please note that your submitted comments, including the identity of the submitting individual(s) or organization(s), are not confidential and may (at our sole discretion and without further permission) appear in this public forum.  Reference to and quotations from comments received, including the identity of the author(s), may also (at our sole discretion and without further permission) appear in the official report of the committee.

We hope those interested in these topics will consider participating in this opportunity for comment.

How Far Should A Prosecutor Go In Closing Argument?

By Evidence ProfBlogger 

Does a prosecutor commit misconduct by repeatedly referring to a defendant as “a hornet’s nest?” That was the question addressed by the Court of Appeals of Washington in its recent opinion in Matter of Richmond, 2021 WL 1032855 (Wash.App. 2021).

In Richmond, Joseph Richmond (1) killed Dennis Higginbotham by striking him in the head with a two-by-four wooden board; and (2) claimed he was acting in self-defense, arguing that Higginbotham was coming at him with a knife. Thereafter, 

In explaining its case, the prosecutor used a hornet’s nest analogy. The prosecutor asked the jury, “have you ever heard the analogy, don’t poke a hornet’s nest with a stick[?]”…“Well, ladies and gentlemen, Joe Richmond is a hornet’s nest. And you don’t need a stick to poke him to set him off.”…The hornet’s nest analogy was repeated at various times throughout summation. In addition to referring to Mr. Richmond as a hornet’s nest, the prosecutor described Mr. Richmond as “king of the nest, “king of the world,” and “irrational.”…The prosecutor’s comments did not inspire a defense objection. The prosecutor concluded their thoughts by arguing the “[d]efendant is charged with murder in the second degree and the state is asking you to find self-defense doesn’t apply to the hornet’s nest.” 

After he was convicted, Richmond appealed, claiming that the prosecutor committed reversible error by repeatedly referring to him as a hornet’s nest. The Court of Appeals of Washington began by noting that

Animal imagery can sometimes be improper, but not always. Context matters.

The most obvious problem with animal analogies is they can convey racist sentiments. We discussed this issue in State v. Barajas, 143 Wash. App. 24, 39, 177 P.3d 106 (2007). The Barajas prosecutor compared the defendant’s conduct to that of a “mangie [sic], mongrel mutt.”…These words tended to convey a derogatory message about someone being “mixed race.”…As such, the prosecutor’s argument had the capacity to cultivate juror bias and irrational thinking. Such racially charged rhetoric is insidious misconduct….It can never be condoned.

Even when an animal analogy lacks racist connotations, it can send a dehumanizing message. Calling someone a snake or a rat conveys the idea that the person, regardless of race, does not merit full treatment as a human and, as a result, a jury need not be as concerned about the individual’s rights or circumstances. Such derisive comments are improper

The court then added, though, that

not all human-animal comparisons are racist or dehumanizing. Some analogies are positive. It is a compliment to say someone is lionhearted, eagle-eyed, or busy as a bee. Other analogies are negative, though not in a particularly dehumanizing way. For example, calling someone a chicken has more to do with the anthropomorphism of gallinaceous birds than with human denigration. There are also analogies that are simply neutral. A politician who favors escalating military conflicts may be called a hawk; one with an opposite perspective being a dove. An official who is in the last portion of an elected term is a lame duck. An individual or group seeking to keep politicians (be they hawks, doves, lame ducks, or otherwise) accountable might be referred to as a watchdog….

Unless an analogy conveys racist sentiment or is otherwise dehumanizing, we should give breathing room for attorneys to connect with jurors and try their cases. In addition, if a particular analogy is ambiguous, our appellate review should be guided by a presumption of good faith.

Applying this analysis, the court concluded that

Looking at the analogy here, nothing about a hornet’s nest analogy places it outside the bounds of permissible trial argument. As Mr. Richmond concedes, the analogy carries no apparent racial implications. Nor is it particularly dehumanizing. Similar to what is true of lame duck or watchdog, the primary definition of a “hornet’s nest” has to do with people, not animals: “a troublesome or hazardous situation” or “an angry reaction.”…While a hornet or hornet’s nest is not an entirely positive comparison, the comparison appears to have more to do with the anthropomorphism of stinging wasps than an attempt to suggest a person compared to a hornet or a hornet’s nest is less than human.

Nor did the hornet’s nest analogy appear obviously improper when viewed in the context of Mr. Richmond’s trial. The prosecutor appears to have invoked the hornet’s nest analogy to explain Mr. Richmond’s behavior in a way the jury might find relatable. Not everyone has been exposed to individuals with quick, violent tempers. But most people are familiar with the concept of an easily angered hornet. We do not doubt one could read the hornet’s nest analogy as improperly suggesting Mr. Richmond shared an insect’s inability to engage in the type of rational thought required for self-defense. But this dehumanizing interpretation is far from obvious. Indeed, had the analogy been obviously offensive, one would wonder why it took Mr. Richmond and his various attorneys so long to raise this argument

Everything You Want To Know About Qualified Immunity

By Alexander A. Reinert 

Police officers stand at the U.S. Supreme Court building. (Elvert Barnes, https://flic.kr/p/2kq2mMC; CC BY-SA 2.0, https://creativecommons.org/licenses/by-sa/2.0/)

Prompted by several recent high-visibility killings by police officers, the U.S. civil rights enforcement regime is the subject of focused attention at the national, state, and local levels. Much of the discussion has centered on the barriers that prevent victims of civil rights violations and their families from obtaining relief through civil litigation. Of all of these barriers, qualified immunity—a powerful judicial doctrine that shields government officials, including those in law enforcement, from being held personally responsible for constitutional violations—has received the lion’s share of attention. Broadly, qualified immunity can bar a damages remedy in civil rights cases even when plaintiffs can establish that their constitutional rights were violated; if defendants can show that the law governing their conduct was not “clearly established,” they are entitled to immunity from suit even if their conduct violated the Constitution. For this reason, the immunity doctrine has been the subject of withering criticism among policymakers, advocates, and academics who argue that the protection comes at too great a cost to justice and accountability.

But while the academic literature criticizing immunity doctrine is both too broad and too deep to summarize in a sentence or even a paragraph, it is essential to note that, for many years, qualified immunity has not been subject to sufficient empirical scrutiny. Anecdotally, no empirical study is required to show that the U.S. Supreme Court has become increasingly solicitous of defendants claiming qualified immunity (notwithstanding some recent notable exceptions). But the court’s decisions are a small fraction of the work of the federal courts—to call them the tip of the iceberg, even, would exponentially overstate the extent to which they are representative of all federal court adjudication. It should come as no surprise, then, that the Supreme Court’s treatment of qualified immunity has had an overriding impact on perceptions of the importance of the defense, both among academics and practitioners (in other work, Joanna Schwartz and I have separately presented data confirming this perception and its role in how attorneys select cases).

Recent empirical work has undermined some of these assumptions. Schwartz’s pathbreaking study of district courts suggests that qualified immunity is rarely dispositive in Section 1983 litigation brought for alleged Fourth Amendment violations. And in earlier work studying Bivens litigation, I reported data along the same lines about the role of qualified immunity in litigated cases. 

There is a disjunction, then, between empirical work regarding the role of qualified immunity in trial courts and the resolution of qualified immunity in the handful of cases that reach the Supreme Court. Missing from the discussion, and critical to understanding the role of qualified immunity in the resolution of litigated cases, is an empirical examination of appellate decision-making. My recent article “Qualified Immunity on Appeal: An Empirical Assessment” fills this significant gap in the literature by providing the most comprehensive study to date of the resolution of qualified immunity appeals in federal court. 

The Reasonable Fear Black Americans Have Of the Police

(Reuters) – Judge Robin Rosenbaum of the 11th U.S. Circuit Court of Appeals made an unusual plea to the U.S. Supreme Court last week, in a striking opinion on race bias and police harassment.The ruling cites legal research concluding that Black Americans have a reasonable fear of law enforcement and are less likely to actually exercise their Constitutional rights against unreasonable police searches and seizure.That’s “why even a Black United States Senator and a Black former president of the United States acknowledge the same shared experience as Black citizens from all other walks of life,” Rosenbaum writes, citing Barack Obama and Republican Senator Tim Scott’s own fearful stories of being racially profiled.The Fourth Amendment protects people from unreasonable searches and seizures by the government.In 1968, the Supreme Court defined stops, or seizures, as when an officer has “restrained the liberty” of a civilian by “physical force or show of authority.”Courts determine whether someone was truly restrained by analyzing whether a hypothetical “reasonable person” would feel free to leave or otherwise end the police encounter. And that’s where things get tricky.The 11th Circuit’s unanimous ruling in U.S. v. Knights, in which Rosenbaum wrote a separate opinion, held that Anthony Knights’ Fourth Amendment rights weren’t violated because he essentially consented to being investigated when he acquiesced to officers’ actions and complied with their requests during an encounter with the Tampa Police Department.Rosenbaum wrote that the Supreme Court’s interpretations set up a “Russian Roulette” game between civilians and cops — especially when the civilian is a Black person.Civilians have complete responsibility for determining whether a cop actually means to detain them, and an incorrect guess carries great risk to the citizen (and officers, sometimes), Rosenbaum explained.She said the test also “disregards the actual intentions of officers,” which allows courts to dismiss cases in which someone was factually racially profiled if the judge concludes a “reasonable” person would have felt free to walk away from the unlawful stop.”The concurrence asks the Supreme Court, in almost shockingly direct terms, to revisit” current precedent, Seth Stoughton, a law professor at the University of South Carolina, told me.for the rest of the article https://today.westlaw.com/Document/Ie0a1491085c511eba0e08bbcc092c829/View/FullText.html?transitionType=SearchItem&contextData=(sc.Default)&firstPage=true