Throughout the nation there is increasing concern about pre-trial detention. Some have expressed concern about monetary bail. Others raise concern about implicit bias.  The VERA Institute has issued a new “evidence brief”.  Here is an  overview:

The pretrial population — the number of people who are detained while awaiting trial — increased 433 percent between 1970 and 2015.  This growth is in large part due to the increased use of monetary bail.  But pretrial detention has far-reaching negative consequences.  This evidence brief presents information on the way that pretrial detention is currently used and summarizes research on its impacts.  These studies call into question whether pretrial detention improves court appearance rates, suggests that people who are detained are more likely to be convicted and to receive harsher sentences, and indicate that even short periods of detention may make people more likely to become involved with the criminal justice system again in the future.  The brief concludes by highlighting strategies that some jurisdictions have employed to reduce the use of monetary bail and increase pretrial release.

An article by Shannon Heffernan:

A sentence over 40 years is a de facto life sentence for juveniles, according to a new decision from the Illinois Supreme Court. The offers hope of an earlier release for some people serving long sentences for crimes they committed as kids and bolsters the philosophy in the criminal justice system that kids should be treated differently than adults.

The ruling comes in the case of Dimitri Buffer, who was found guilty in 2010 of first-degree murder and sentenced to 50 years for a crime he committed when he was 16 years old.Advocates have argued for years that young people should receive special considerations when facing severe punishments because their brains are not yet fully developed and they are not able to weigh long-term consequences or control impulses.

In 2012, the US Supreme court decided in Miller v. Alabama that a mandatory sentence of life without the possibility of parole, without considering the factors of youth, is cruel and unusual punishment and violates the constitution. Buffer’s attorneys argued that his sentence was long enough that it was a “de facto” life sentence and should receive the same protections.

In drawing a line at 40 years, the Illinois Supreme court leaned on state laws on juvenile sentences passed since the Miller decision.

“This specific number does not originate in court decisions, legal literature, or statistical data. It is not drawn from a hat. Rather, this number finds its origin in the entity best suited to make such a determination — the legislature,” the court said in its opinion.

The decision says that when Buffer was sentenced, the judge failed to consider his young age and so his sentence should be vacated and he should be re-sentenced.

The ruling will likely have implications for other people in Illinois who committed crimes as juveniles. According to data released May 2018 by Injustice Watch, “more than 160 juvenile offenders were set to serve more than 50 years in prison” and about “60 offenders had been sentenced to serve terms between 41 and 49 years.”

Judges will still be able to give kids sentences over 40 years, but they will now have to give careful consideration to whether the crime reflects, as the U.S. Supreme court has put it, “unfortunate yet transient immaturity” or if they are “the rare juvenile offender whose crime reflects irreparable corruption.”

The full opinion can be found here.

Your honor, it’s an eggplant: Lawyers call for guidance on interpreting emoji

by Hamza Shaban for the Washington Post

When judges in Britain hear evidence of a crime, the appearance of an eggplant icon in people’s online chatter may not mean what they think it does.

Noting the rise of emoji in court cases, and the multiple meanings couched in images such as a peach or a bathtub, lawyers in Britain are urging the judiciary to issue guidance on the interpretation of the digital symbols, according to the Times of London.

The icons are increasingly appearing in British criminal, family and employment hearings, the report said, tracking their rise in the United States. But the multiple meanings of emoji are not always readily grasped.

[Anyone can create a new emoji. Here’s an animated guide to doing it right.]

Santa Clara University law professor Eric Goldman has documented the appearance of emoji and emoticons in U.S. court opinions since 2004 and has seen their rapid growth. Fifty-three cases contained emoji in 2018, compared with 33 in 2017 and 26 the year before, according to his research, which tracks court opinions in the Westlaw and Lexis legal databases that reference “emoji” or “emoticon.”

(Emoji are the more recent images of people and objects, whereas emoticons use symbols and punctuation.)

Through emoji, people can communicate a wide range of emotions and actions, but their flexibility as a tool of expression can also provoke misinterpretation. Emoji are often weighted with dual meanings of a sexual or sinister nature. And because in the context of law, courts must frequently assess the meaning of nonverbal communication, the use of emoji can fuel confusion or misdirection, legal experts say.

As the Times reported, emoji communications could be interpreted differently by the parties in a trial, which could color the meaning of sexual communications or correspondence between co-conspirators involved in murder or terrorism. The use of a bathtub emoji can mean a coffin, and an emoji of a face without lips can be used to express intimidation, “or a warning to stay silent,” the report said.

What’s more, people’s devices and platforms themselves may display the same emoji differently, without either the sender or the receiver knowing they are looking at different images, according to Goldman. In a recent interview, he noted that for a time, “Google users thought the ‘grinning face with smiling eyes’ emoji meant ‘blissfully happy,’ while Apple users thought it meant ‘ready to fight.’” That meant a Google user who sent that emoji symbol to an Apple user might have prompted a conflict unintentionally, he said.

According to Goldman’s research, emoji appear in virtually every area of the law, but the most common types of cases with emoji involve sexual abuse — in which the perpetrator and victim exchange sexual banter — and in cases of employment discrimination.

While Goldman has said recent cases with emoji have not broken new ground on interpreting the images in the courtroom, he sees the rise of animated and personalized emoji as a coming challenge for judges and lawyers, as they leave open even more room for multiple interpretations.

Sara Gordon (University of Nevada, Las Vegas, William S. Boyd School of Law) has posted About a Revolution: Toward Integrated Treatment in Drug and Mental Health Courts (North Carolina Law Review, Vol. 97, No. 2, p. 355, 2019) on SSRN. Here is the abstract:

This Article examines specialty courts, including drug, alcohol, and mental health courts, which proponents claim created a revolution in criminal justice. Defendants whose underlying crime is the result of a substance use disorder or a mental health disorder can choose to be diverted into a specialty court, where they receive treatment instead of punishment. Many of these individuals, however, do not just suffer from a substance use disorder or a mental health disorder; instead, many have a “co-occurring disorder.” Approximately 8.9 million American adults have co-occurring mental health and substance use disorders, and almost half of individuals who meet diagnostic criteria for one disorder will also meet criteria for the other. Moreover, an extensive body of literature has shown that treatment for co-occurring disorders should be integrated and that individuals should receive appropriate mental health and substance abuse treatment from a single clinician or clinical team.

This Article argues that the segregation of drug, alcohol, and mental health courts is out of step with our current understanding of the high rates of co-occurring disorders, and often fails to provide integrated treatment for the multiple disorders a single specialty-court participant might present.

Moreover, by segregating specialty courts, we are further stigmatizing addiction and failing to acknowledge that drug and alcohol use disorders are some of the many types of mental illnesses recognized by the medical community. Drug, alcohol, and mental health courts should therefore move away from their traditional siloed approach to the selection and treatment of participants and instead provide individuals with comprehensive and integrated treatment for co-occurring substance use and mental health disorders

If there is an broken  Achilles heel of the state court systems it is the way we fund our courts. Minnesota went through an analysis decades ago. I served on two Commissions (one appointed by the Governor and one appointed by the Supreme Court). The change necessary is not easy……but in life change is often difficult but necessary. The Detroit Free Press reports, “A report released Monday by a state commission says the system for raising and spending money for Michigan trial courts is “broken” and requires major changes, including a different funding source to distance judges from raising money for court operations through fees and tickets.

The 14-member Trial Court Funding Commission — made up of judges, lawyers and others — agreed that there is a real or perceived conflict of interest between a judge’s impartiality and the obligation to use the courts to generate revenue; that inadequate funding from all sources is due to to excessive dependence on local government dollars, and that the discrepancies create unequal access to justice.

Circuit courts are fund users, one judge said, with budgets decided by their respective counties. District courts are “funders” — raising revenue with court fees and tickets. More than 70% of district court budgets are funded by local government support and court revenues.

“The (funding) system is unquestionably broken,” said Mason 55th District Judge Thomas Boyd. “A judge wants to hire another clerk or a new building has to be built. How to do it? They are asked: ‘Can you raise some revenue in court to pay for it?’ The answer is: ‘Sure.’

Judge Thomas Boyd of 55th District Court in Mason. (Photo: Ingham County)

“And it happens in court after court,” he said.

“And at one end, those who are most vulnerable and have the least access to financial resources are harmed,” Boyd said. “It’s got to be changed.”

The report says it costs up to $1.44 billion a year to run Michigan’s trial courts. Among its recommendations:

• Establish a stable court funding system with help from the state for receipt of all trial court assessments and state general fund payments. Distribute funds to trial courts based on the costs of operation.”

Lisa Foster served as a California State court judge for nearly a decade before joining the United States Justice Department under President Obama.  She left the Justice Department after President Trump was elected and devotes her time toward reforming how the justice system deals with fines and fees. She is a dynamic speaker but more importantly she is making a difference.  Law360 interviewed FFJC Co-Director Lisa Foster about her career as a California state court judge and why she decided to dedicate herself to fines and fees reform. “There just seems to be an infinite variety of ways that legislators have concocted to take money away from people in the justice system.” Related: For the Fordham Law Review, Lisa explains why the fines and fees reform movement has seen success thus far.

Ontario’s top court has ruled that placing inmates in solitary confinement for more than 15 days constitutes cruel and unusual punishment, a resounding legal defeat of Correctional Service Canada’s long-standing practice of isolating prisoners for weeks, months and even years at a time.

The landmark decision sets a cap of 15 days on solitary placements, the first time a Canadian court has imposed a specific limit on solitary confinement. It would come into force by April 13, the court ruled, a tight deadline for an unwieldy government entity that oversees 43 prisons, 23,000 offenders and a $2.4-billion annual budget.

“With this decision, the Court of Appeal has brought to an end a sorry chapter in the administration of Canada’s prisons,” said Michael Rosenberg, who served as co-counsel on the case for the Canadian Civil Liberties Association (CCLA), which launched the challenge of solitary confinement four years ago. “This is a significant win for the CCLA and for the administration of justice more generally.”

From Judge Wayne Gorman:

In Overarching Principles: Sentencing Offenders with Mental Health Conditions or Disorders, Consultation, April 9, 2019, the Sentencing Council for England and Wales has published a “draft guideline for courts to use when sentencing offenders with mental health conditions, neurological impairments or development disorders”.

The Sentencing Council notes that “[a]vailable evidence suggests that people in the criminal justice system are more likely to suffer from mental health problems than the general population, for example, when a survey screened prisoners on arrival at prison, 23 per cent reported that they had some prior contact with mental health services. 17 per cent of the prison population is thought to have a learning disability compared with 2 per cent of the population, and while the exact number of people with autism in prison is unknown, the proportion is thought to be double that within the general population. A recent study showed that Hospitalised Head Injury (HHI) was found in 24.7 per cent of prisoners and was significantly more prevalent than found in the matched general population sample”.

Under the heading, “Assessing Culpability”, the Sentencing Council listed the following factors for consideration (at page 9):

Did the offender’s condition mean it impaired their ability to exercise appropriate judgement?

Did the offender’s condition impair their ability to make rational choices, or to think clearly?

Did the offender’s condition impair their ability to understand the nature and consequences of their actions?

Did the offender’s condition have the effect of making them disinhibited?

Were there any elements of premeditation or pre-planning in the offence, which might indicate a higher degree of culpability?

Were there attempts to minimise their wrongdoing or to conceal their actions, which might indicate a higher degree of culpability?

Did the offender have any insight into their illness, or did they lack insight?

Did the offender seek help, and fail to receive appropriate treatment or care?

If there was a lack of compliance in taking medication or following medical advice, was this influenced by the condition or not?

If the offender exacerbated their condition by drinking/taking drugs, were they aware of the potential effects of doing so?

By Martin Kaste

Tyson Timbs won his Supreme Court case in February, but he still doesn’t have his Land Rover.

“I want my truck back, I’ve always wanted it back,” says Timbs, whose Land Rover was seized by police in Indiana. They took it after he was arrested for selling a small amount of heroin to undercover cops; he served a period of house arrest and probation for the drug crime, punishments he accepted.

But Timbs never accepted that police were also entitled to his $42,000 vehicle, which he’d bought with proceeds from an insurance settlement.

“I thought it was kind of ridiculous that they could take my vehicle so easily,” he says.

And yet this kind of confiscation is common. Called “civil asset forfeiture,” it was developed as a law enforcement tactic in the drug war of the 1980s. Authorities use the lower standard of proof of civil law to take property — usually cars or cash — based on the suspicion it’s associated with crime. In Timbs’ case, police suspected he’d used the Land Rover to transport heroin. Since the tactic was developed, billions of dollars of assets have been seized this way.

View Full Story From NPR.

A report by state judicial officials in New Jersey concludes that recent bail reforms have not generated a spike in crime rates predicted by prosecutors and bail industry advocates. See NORTHJERSEY.COM for this story.