William Ortman (Wayne State University School of Law) has posted When Plea Bargaining Became Normal (Boston University Law Review, Vol. 100, 2020, Forthcoming) on SSRN. Here is the abstract:

Plea bargaining is the criminal justice system, the Supreme Court tells us, but how did it get to be that way? Existing scholarship tells only part of the story. It demonstrates that plea bargaining emerged in the nineteenth century as a response to (depending on one’s theory) increasing caseloads, expanding trial procedures, or professionalizing law enforcement. But in order for plea bargaining to truly become the criminal justice system, the legal profession would have to accept and internalize it. That was not its first reaction. When legal scholars and reformers in the 1920s discovered that bargaining dominated America’s criminal courts, they quickly denounced it as abusive. By the 1960s, only four decades later, the legal profession had learned to love it.

This article investigates the process that made plea bargaining the normal way of doing American criminal justice.

The story unfolds in three parts — plea bargaining’s discovery by and frosty reception from the “crime commissions” of the 1920s; its rehabilitation by the Legal Realists in the 1930s; and finally its decisive embrace by scholars and judges in the 1950s and ‘60s. The Realists’ starring role is surprising, as they are not usually recognized for contributing to criminal law or procedure. This article shows that they deserve credit (or plausibly blame) for taking the first major steps towards normalization. The article also pays close attention to an objection to plea bargaining that arrived late — that it depends on coercing defendants to plead guilty. By the time this objection emerged in the 1950s, plea bargaining’s momentum was too strong; legal elites, and, ultimately, the Supreme Court, saw no option but to rationalize it away. Above all, this article reveals that normalized plea bargaining is newer and more historically contingent than it seems.

From Governing Magazine By Steph Solis:

Days after a judge and court officer were arrested on charges they helped a man evade immigration authorities, advocates are filing a lawsuit against Immigration and Customs Enforcement’s practice of arresting people at local courthouses.

The Middlesex County District Attorney’s Office announced a group of prosecutors, public defenders and community groups plan to file a lawsuit on Monday over courthouses arrests, arguing the arrests deter victims and witnesses from cooperating with law enforcement on local criminal cases.

“Prosecutors are forced to abandon cases because many victims and witnesses are deterred from appearing in court. The policy also makes it more difficult to obtain defendants’ appearance[s] in court,” District Attorney Marian Ryan wrote in a joint statement with Suffolk County District Attorney Rachael Rollins.

District Attorney Rachael Rollins told her staff to notify her office if they see immigration agents arresting or questioning people inside courthouses, but what happens after?

Lawyers for Civil Rights Director Ivan Espinoza-Madrigal, Committee for Public Counsel Services’ Immigration Impact Unit Director Wendy Wayne and Chelsea Collaborative Executive Director Gladys Vega also signed onto the joint statement.

An announcement will be made about the lawsuit at 11 a.m. Monday at Goodwin Procter’s Boston office.

Public defenders, local prosecutors and immigrant activists began voicing concerns about ICE agents making arrests at local courthouses after President Donald Trump took office. Thomas D. Homan, then acting director of ICE, issued a directive in January 2018 stating that courthouses are fair game for immigration enforcement, unlike schools, churches and hospitals, which are considered “sensitive locations” under ICE policy.

In a decision throwing out an Allentown man’s conviction, the Pennsylvania Supreme Court  overturned a longstanding legal doctrine allowing police to stop and search a suspect solely for carrying a concealed weapon.

The court ruled a police officer’s knowledge that a person is carrying a gun no longer constitutes reasonable suspicion to detain and investigate whether they’re licensed to do so.

The rule that allowed Pennsylvania police to do so “subverts the fundamental protections of the Fourth Amendment,” the court said. It noted Pennsylvania issues hundreds of thousands of licenses to carry firearms every year.

“When many people are licensed to do something, and violate no law by doing that thing, common sense dictates that the police officer cannot assume that any given person doing it is breaking the law,” Justice David Wecht wrote in the court’s lead opinion. The ruling of the Supreme Court of Pennsylvania consisted of a majority opinion and two concurring opinions (here and here)

New Jersey and Maryland have made major changes in how their judges use bail. There was litigation in the federal court in Texas that ended up with an order quite critical of how some of the Texas state court judges employed money bail.  So is there a “bail revolution” going on? Kellen Funk (Columbia University – Law School) has posted The Present Crisis in American Bail (128 Yale Law Journal Forum 1098, 2019) on SSRN. Here is the abstract:

More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) postconviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these precedents while also taking account of the troubled history of American bail, particularly during the Reconstruction Era from which the right to sue state officials in federal court for violations of constitutional rights emerged.

Elise Schmlzer reports for the Denver Post on People v. McKnight, 2019 CO 36. Here is an excerpt from her article:

The Colorado Supreme Court greatly diminished the role of police dogs trained to detect marijuana with a ruling Monday that created another divide between how state and federal law enforcement can investigate pot.

In a 4-3 ruling, the Colorado Supreme Court ruled that, under the state constitution, a dog trained to alert to marijuana cannot be used before an officer establishes probable cause that a crime had been committed.

For decades, police dogs were trained to alert their handlers to the presence of pot. But since Coloradans voted in 2012 to legalize recreational possession of small amounts of the drug, the dogs’ sniff tests have been controversial because they can alert even if a person has a legal amount of marijuana.

Monday’s ruling effectively renders the dogs trained to detect pot useless in most situations, said Sam Kamin, a law professor at the University of Denver who studies marijuana law and policy. Previously, the dogs’ sniff tests were used to create probable cause for a search. Now, there has to be enough evidence to authorize a search before a marijuana-trained dog can be used, making the dogs’ sniff tests redundant.

 

There is an interesting new paper about collateral consequences written by Paul T. Crane on SSRN. Here is the abstract:

A curious relationship currently exists between collateral consequences and criminal procedures.  It is now widely accepted that collateral consequences are an integral component of the American criminal justice system.  Such consequences shape the contours of many criminal cases, influencing what charges are brought by the government, the content of plea negotiations, the sentences imposed by trial judges, and the impact of criminal convictions on defendants.  Yet, when it comes to the allocation of criminal procedures, collateral consequences continue to be treated as if they are external to the criminal justice process.  Specifically, a conviction’s collateral consequences, no matter how severe, are typically treated as irrelevant when determining whether a defendant is entitled to a particular procedural protection.

This Article examines that paradoxical relationship and, after identifying a previously overlooked reason for its existence, provides a framework for incorporating collateral consequences into criminal procedure.  Heavily influenced by concerns of practicality and feasibility, the proposed methodology establishes a theoretically coherent path forward that requires only modest adjustments to existing doctrines.  After setting forth the three-step framework, the Article applies its insights to the two most hallowed rights in our criminal justice system: the constitutional right to counsel and the constitutional right to a jury trial.

A Washington, D.C. judge ordered a man to stay out of the District of Columbia as a condition of his release from jail.  Rives Miller Grogan was arrested for climbing a tree near the Capitol as part of a protest during President Obama’s inauguration. Can you be banished from a state?

Probably not. Sixteen states have constitutional provisions prohibiting banishment, and appeals courts in many others have outlawed the practice. Although it remains on the books in a handful of states—the Tennessee Constitution, Article I, Section 8, permits exile, and Maryland’s Constitution, XXXIX, specifically prescribes banishment as a punishment for corruption—appeals courts usually overturn sentences of exile. There has been only one recent case of banishment from a state: In 2000, a Kentucky judge banished a domestic abuser from the state for one year. (The case never reached the state’s high court.) The District of Columbia has no constitution, and its statutes don’t mention banishment, so the legality of Grogan’s exile is unclear. Judges typically get wider discretion in prescribing conditions of bail than in sentencing, but there is a strong trend toward invalidating interstate banishment under any circumstances.

And now thanks to Judge Wayne Gorman we have insight into banishment from Canada. In R. v. Deering, 2019 NLCA 31, May 17, 2019, the accused was convicted of the offences of breach of probation and breach of recognizance.  He was sentenced to a period of imprisonment followed by a period of probation.  The probation order contained a condition prohibiting the accused from being present on “any part of the Burin Peninsula south of the Piper’s Hole River Bridge”.

The accused appealed from sentence, arguing that this condition was unreasonable.

The appeal was dismissed.

The Court of Appeal indicated that a banishment condition “must be justified in each individual circumstance…a banishment condition cannot be used simply to punish the offender in the abstract. Where, however, it is used to protect the victim from further interaction with the offender or to facilitate the offender’s rehabilitation, it can be justified if appropriate in scope, given the area and locality involved” (at paragraph 18).

The Court of Appeal concluded that the sentencing judge “did not err in imposing a no-go area on the appellant as a condition of his probation” (at paragraphs 22 and 23):

In this case, the appellant’s criminal history demonstrates an unwillingness or inability to abide by court orders in general and no-contact orders in particular. There is no reason to believe that another no-contact order, without more, would have any greater chance of being effective. The use of a no-go area in this case is justifiable as a potentially more effective alternative – indeed, the only realistic alternative – means of minimizing and hopefully eliminating contact between the appellant and the complainant. As such, it has potential of contributing to the protection of the community, something that has not been achieved by imposition of simple no-contact orders in the past. Furthermore, the separation of the appellant from the complainant in this way should have the incidental effect of reducing the potential for future breaches of the no-contact provision and may incidentally contribute to the appellant’s rehabilitation and reintegration into the community when the probation order expires. It will involve a “cooling off” period that may enable him to reflect on the futility of trying to maintain a one-sided relationship with someone who does not want to continue it.

A no-go order can thus be regarded as a reasonable condition that would contribute to protection of the community and the reintegration of the offender into the community. The appropriate nexus between the offender and these goals therefore exists, as required by s. 732.1(3)(h) of the Code and as explained in Shoker. It can equally be said there is a nexus between the offence and the contemplated banishment, as alluded to in Reeves. From the record and the way the judge approached the matter, it is evident that he thought the same way. It was therefore not inappropriate to employ the tool of imposing a no-go area on the appellant as a condition of his probation.

Repost from the Sentencing Law and Policy Blog, “Guest post on the Fourth Circuit’s reaction to district judge’s rejection of plea bargains”:

In prior posts here and here I noted the quite notable opinions by US District Judge Joseph Goodwin explaining why he was rejecting plea bargaining in fairly routine cases.  Professor Suja A. Thomas, Peer and Sarah Pedersen Professor of Law at the University of Illinois College of Law, who is a leading scholar on juries and has written the leading book on the topic, was kind enough to put together this guest post about the Fourth Circuit’s recent opinion in one of these cases:

By rejecting plea bargains, Judge Joseph Goodwin of the Southern District of West Virginia has been challenging the prevalent use of plea-bargaining in the federal courts.  Judge Goodwin began to do so in 2017 in United States v. Walker when he issued an opinion rejecting a plea bargain in a case involving heroin-dealing (discussed here).  He said he would continue to reject plea deals as long as the plea bargain wasn’t in the public’s interest.  True to his word he has rejected pleas in other cases including United States v. Stevenson and United States v. Wilmore.  Late last month in US v. Walker, No. 18-4110 (4th Cir. April 29, 2019), the Fourth Circuit issued its first opinion addressing Judge Goodwin’s rejection of pleas.

The facts of Walker are significant.  The government presented a deal for a plea to a single count of possession with intent to distribute heroin.  It recommended 24 to 30 months. The court rejected the plea deal and ultimately as a result of pleading guilty to three distribution counts plus a jury conviction on a gun count, the defendant received four times as much — 120 months in prison.

In Walker, Judge Goodwin described four considerations in whether a plea bargain agreement should be accepted: “(1) ‘the cultural context surrounding the subject criminal conduct’; (2) ‘the public’s interest in participating in the adjudication of the criminal conduct’; (3) the possibility of ‘community catharsis’ absent the transparency of a jury trial; and (4) whether, in light of the [presentence report], it appeared that the ‘motivation’ for the plea agreement was ‘to advance justice’ or to ‘expediently avoid trial.’” 922 F.3d 239, 245 (4th Cir. 2019).  In rejecting the plea bargain there, the judge discussed how West Virginia had been “deeply wounded by … heroin and opioid addiction,” explained the public’s significant interest in this issue, described the importance of the jury’s determination of this matter, and concluded that the plea agreement had been improperly motivated by convenience.  Id. at 245-46.

While the Fourth Circuit addressed Judge Goodwin’s rejection of plea bargaining, the opinion is disappointing.  In upholding his decision, it focused on only Judge Goodwin’s analysis of the defendant’s criminal history and violence.  And it suggested that Judge Goodwin’s broader considerations such as the cultural context of the offenses were irrelevant.  Similarly, in concurrence, Judge Niemeyer stated that the court would have abused its discretion if it had rejected plea bargaining based on the government’s frequent use for the reason of convenience. Id. at 254.

The Fourth Circuit missed an opportunity.  It could have addressed some of the problems tagged by Judge Goodwin — that constitutionally-enshrined juries decide few cases and that the courts accept plea bargaining as necessary for efficiency — despite no constitutional backing for this proposition.

With that said, I recognize that Judge Goodwin’s actions resulted in a black defendant being sent to prison for much more time than the prosecution wanted — continuing to contribute to the problem of mass incarceration.  Additionally, a jury had some role but did not decide all counts.  Though one can argue that the Judge’s action in rejecting plea bargains is far from a perfect solution, whether you agree with the Judge or not, he has taken a bold, very courageous step of questioning our continued reliance on the system of plea bargaining.

And I share some views with Judge Goodwin.  I value the role that the jury was to play in the criminal justice system under the Constitution.  Plea coercion, as I like call it, occurs in approximately 97% of federal cases.  Most of the time the defendant is given a false choice — receive a discount for pleading guilty or receive a penalty for going to trial.  The obvious result is the system that we have now.  No one takes a jury trial; the penalty is too great.  In a book and elsewhere, I have argued that this system is unconstitutional.  Historically a penalty was not attached to a jury trial.  A defendant received the same sentence if he pled guilty or if he was convicted before a jury.

The Harvard Law Review summarized and critiqued Judge Goodwin’s opinion in Walker. 131 Harv. L. Rev. 2073 (2018).  Although an interesting analysis including a discussion of the significant impact on the defendant, the authors missed the mark when they simply stated plea bargaining is “a systemic problem that cannot be convincingly addressed by the actions of a single judge.” Id. at 2078.  They did not recognize that systemic change often begins with a single person challenging the status quo.  The judge has already sparked national media coverage and other significant discussions about plea bargaining.

With that said, what will the government do in the future in Judge Goodwin’s courtroom?  It seems like the defendant and the government will get around Judge Goodwin’s rejection of the plea deal by privately agreeing in advance to the plea.  Hopefully, the needed attention to the problems with plea-bargaining will not end there

Joelle Anne Moreno (Florida International University (FIU) – College of Law) has posted Half-Baked: The Science and Politics of Legal Pot (Penn State Law Review, Vol. 123, 2019) on SSRN. Here is the abstract:

Weed, herb, grass, bud, ganja, Mary Jane, hash oil, sinsemilla, budder, and shatter. Marijuana – whether viewed as a medicine or intoxicant – is fast becoming a part of everyday life, with the CDC reporting 7,000 new users every day and the American market projected to grow to $20 billion by 2020. Based on early campaign rhetoric, by that same year the U.S. could have a pro-marijuana president.

Despite its growing acceptance and popularity, marijuana remains illegal under federal law. Like heroin, LSD, and ecstasy, marijuana is a DEA Schedule I drug reflecting a Congressional determination that marijuana is both overly addictive and medically useless.

So what is the truth about pot? The current massive pro-marijuana momentum and increased use, obscures the fact that we still know almost nothing about marijuana’s treatment and palliative potential. Marijuana’s main psychoactive chemical is THC; but it also contains over 500 other chemicals with unknown physiological and psychological effects that vary based on dosage and consumption method. Medical marijuana may be legal in 32 states and supported by 84% of Americans, but federal constraints shield marijuana from basic scientific inquiry. This means that lawmakers and voters are enthusiastically supporting greater access to a drug without demanding critical scientific data. For policymaking purposes, this data should include marijuana’s short and long-term brain effects, possible lung and cardiac implications, chemical interactions with alcohol and other drugs, addiction risks, pregnancy and breast-feeding concerns, and the effects of secondhand smoke.

This Article treats marijuana as a significant contemporary science and law problem. It focuses on the fundamental question of regulating a substance that has not been adequately researched. The Article examines the extant scientific data, deficiencies, and inconsistencies and explains why legislators should not rely on copycat laws governing alcohol or prescription narcotics. It also explores how marijuana’s hybrid federal (illegality)/state (legality) raises compelling theoretical and practical Constitutional questions of preemption, the anti-commandeering rule, and congressional spending power. Marijuana legalization has, thus far, been treated as a niche academic concern. This approach is short-sighted and narrowminded. Marijuana regulation implicates the reach of national drug policy, the depth of state sovereignty, and the shared obligation to ensure the health and safety of our citizenry.

From the Institute for the Advancement of the American Legal System | University of Denver:

IAALS Releases New Report on its Interdisciplinary Out-of-Court Approach to Separation and Divorce

It is no secret that divorce poses significant problems for those who go through the legal process. Even for people who approach it with the intention of remaining amicable, the adversarial nature of the legal process can put them at odds with one another. And, the courts are not well-positioned to provide much-needed emotional and future-planning support to families as they navigate the process. Today, IAALS has released a new report, Divorcing Together: Report on an Interdisciplinary Out-of-Court Approach to Separation and Divorce, which details the evaluation of our out-of-court model aimed at addressing these challenges for families with children.

We began designing our out-of-court divorce model in 2012 when we assembled a team of experts and stakeholders in the areas of family law and mental health. Working closely with this team, we devised a comprehensive divorce process that offered a range of services provided completely outside of the courts. The model was designed to provide not only legal services—including court case management, mediation, legal drafting, and legal education—but also a host of counseling services, such as co-parent coaching, individual counseling, family therapy, support groups, and child counseling.

In 2013, IAALS debuted the model on the University of Denver campus where graduate student interns served as the primary service providers. In 2015, the Center moved out into the Denver community and shifted to licensed professionals as primary service providers. Ultimately, the Center was unable to find a sustainable business model and closed its doors in late 2017. Even with the Center closed, the successes and lessons learned throughout its four years of operation are invaluable as we continue to refine innovative models for helping families, and IAALS’ evaluation report provides keys insights. Most notably, the data demonstrates that individual parents experienced significant improvements in levels of acrimony toward the other parent, shared decision-making skills, communication and conflict resolution skills, confidence in the co-parenting relationship, and levels of stress related to parenting. Further, parent feedback about the Center experience was overwhelmingly positive. As one parent put it: “The focus on children and what is best for them that is advocated by [the Center] helped our entire family go through the process and has positioned us for a harmonious co-parenting situation moving forward.” The IAALS out-of-court model represents a substantial step in revolutionizing the way families experience the separation and divorce process—and our data will be informative as new innovations continue to develop. As communities around the country establish similar resources, we can look forward to a day when all families who intend to work together through the divorce process can do so in a supportive, cooperative environment.