See my latest article, published over the weekend in the Minneapolis StarTribune:

The “Tyranny of the OR” is a flawed approach to decision making that assumes there is only a solitary choice between one of two seemingly contradictory strategies or outcomes. Unless we are careful, the debate about how to reduce the racial disparities in traffic stops yet maintain a safe community is vulnerable to the “Tyranny of the OR.” F. Scott Fitzgerald once wrote, “The test of a first-rate intelligence is the ability to hold two opposed ideas in the mind at the same time, and still retain the ability to function.” That is exactly the attitude our leaders need in fixing the embarrassing racial inequities in traffic stops by the police in Minnesota.

Recent data on Minneapolis police stops should trouble everyone and particularly those of us who are responsible. Fifty-four percent of the 5,113 motorists stopped in Minneapolis from January to Sept. 11, 2018, for equipment violations, such as a broken taillight or headlight, were black, even though blacks make up only about 19 percent of the city’s population. On the other hand, whites — 65 percent of the population — account for about a third of the stops. There are studies in St. Paul and St. Anthony with similar results. But before you conclude this is yet another diatribe about the police, it is not. Everyone — judges, prosecutors, defense attorneys and elected officials — owns a piece of this mess. And everyone needs to contribute to the solution.

Floyd et al. vs. City of New York challenged the New York Police Department’s practices of alleged racial profiling and unconstitutional stop-and-frisks of New York City residents. After a nine-week trial, a federal judge found the New York City Police Department had a practice of racial profiling and unconstitutional stops. Up until that decision, the stops were largely permitted by the New York judges.

Stop-and-frisk was deployed in New York City some 686,000 times at the peak in 2011 and plummeted to 12,000 times in 2016, according to NYPD data. That is about a 98 percent reduction in use of the tactic. The results were dramatic, and not expected by some. To quote Kyle Smith, who wrote in the conservative publication National Review, “the statistics are clear: Crime is lower than ever. It’s possible that crime would be even lower had stop-and-frisk been retained, but that’s moving the goalposts. I and others argued that crime would rise. Instead, it fell. We were wrong.”

“Stop-and-frisk” of people in cars happens in the Twin Cities every day and every evening. These stops are justified not just by the desire to find guns or drugs, but also to combat drunken driving. So the stakes over when we allow stops of cars are not trivial. But as the late Supreme Court Justice Anton Scalia wrote: “Drunken driving is a serious matter, but so is the loss of our freedom to come and go as we please without police interference. To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops without reasonable suspicion. We should not do so for drunken driving either.” The courts in Minnesota have liberally allowed stops of vehicles just as the judges in New York did before the Floyd decision. Reasonable suspicion, which is the standard for a stop, sometimes morphs into “a hunch.”

The opinion in Floyd emphasized the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the city. The order characterized many of these stops as “a demeaning and humiliating experience” and went on to conclude, “No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life.”

The law in Minnesota, in many respects, allows pretextual stops. You see, no one really cares about minor equipment violations or de minimis driving conduct. We hope to catch the drunken driver, the drug dealer or a gang member with guns. And so there is aggressive use of any excuse to stop cars. There really is no secret why all these stops are occurring. Stopping people for speeding or ignoring stop signs is understandable, but the data here and nationally show we have a problem. It is time for the police to rethink their practices. It is time for prosecutors to rethink their practices. It is time for judges to rethink when we will permit stops of cars to occur. And, yes, it is time for elected officials to do their part.

A discussion about racism makes many uncomfortable. It is more convenient to point at others, and it is difficult to admit that all of us, to some degree, have implicit biases. Vastly disproportional enforcement of traffic laws based on race undermines what the criminal justice system aspires to be — fair. If you are a victim of a racially profiled stop but are a drunken driver, drug dealer or have an illegal gun, you will get a lawyer and there likely will be a challenge to the unconstitutional stop based upon racial profiling. But if you are sober, have no drugs or illegal guns, you will not get a lawyer and it is exceedingly difficult to challenge what happened to you.

Tolerance of “stop-and-frisk” of people in cars has to stop. There is an economic cost to what we are doing, but the cost of undermining trust in the criminal justice system by communities of color is, or should be, unacceptable.

There is no room for the Tyranny of the OR in finding solutions to the problem of racial disparity in the enforcement of traffic laws. Nor is there any room for simply saying this is a police problem. It is a problem all of the leaders of the criminal-justice system bear some responsibility for. All of us are vulnerable to implicit bias, but that is no excuse for not taking the steps to correct a real problem in our community.

Susan Freiwald and Stephen W. Smith (University of San Francisco School of Law and Stanford Law School Center for Internet and Society) has posted The Carpenter Chronicle: A Near Perfect Surveillance (132 Harvard Law Review 205 (2018)) on SSRN. Here is the abstract:

For well over a quarter century, law enforcement has surreptitiously converted the personal cell phone into a tracking device, capable of compiling a comprehensive chronicle of the user’s movements over an extended period of time. With the 2018 Carpenter v. United States decision the Supreme Court has confronted the constitutionality of this practice and determined that a warrant based on probable cause is required by the Fourth Amendment. In doing so, the Carpenter Court adopted a normative approach well suited for the question presented but long avoided by lower courts. It also significantly circumscribed the “third party doctrine”; this new limitation will no doubt reverberate throughout many decisions involving nonpublic databases that hold vast and ever-growing amounts of our digital data.

Scholars debate whether the legislative or the judicial branch is better equipped to adjust the balance between security and privacy as new tools become available. In the case of cell phone tracking, both branches were slow and neither was effective, permitting millions of searches that have now been declared unconstitutional.

One lesson of Carpenter is that courts must not be reluctant to confront the challenges of twenty- first-century technology. Another is that Congress and state legislatures need to design a better system for ensuring that law enforcement is subject to public accountability before using these powerful new surveillance tools.

In addition to relating the history leading up to Carpenter, this article dissects the decision and, in the process, lays out the multi-factor analysis applied by the Court. It also demonstrates how the Court limited the traditionally applied third party doctrine as it relates to cell phone data. Finally, the authors project the possible impact of the Carpenter decision in an increasingly complex telecommunications arena.

Among the most thoughtful commentators on the criminal justice system is Professor Doug Berman. Her is one of his latest posts from his Sentencing Law & Policy blog,

“LawProf Alexandra Natapoff has a terrific new book titled “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” and you can read part of the book’s introduction here at the publisher’s website. And over the weekend the New York Post published this commentary penned by Natapoff under the headlined “How a simple misdemeanor could land you in jail for months.” Here are excerpts:

Just before Christmas, Janice Dotson-Stephens died in a San Antonio jail.  The 61-year-old grandmother had been arrested for trespassing, a class B misdemeanor in Texas. She couldn’t afford the $300 bail, and a mere $30 payment to a bail bondsman would have let her out.  She stayed in jail for nearly five months, waiting for her case to be handled, before she died. Her family has sued, and an independent agency is currently investigating the cause of her death. This is how the American misdemeanor system quietly and carelessly ruins millions of lives.

Dotson-Stephens was a victim of a vast misdemeanor machinery that routinely and thoughtlessly locks up millions of people every year.  America is already infamous for mass incarceration — with 1.5 million state and federal prisoners, we put more people in prison than any other country on the planet.  But nearly 11 million people pass through over 3,000 US jails every year, according to a 2016 report by the Department of Justice. On any given day, there are approximately 700,000 people in jail.  One-quarter of them are there for misdemeanor offenses; the majority of them, like Dotson-Stephens, have not been convicted of anything and are therefore presumed innocent.

Given the minor nature of most misdemeanors, it is shocking how often they send people to jail.  Amazingly, people routinely get locked up when they are arrested for petty offenses even if they could not be sentenced to jail for the offense itself.

Albert Florence was arrested in New Jersey for failing to pay an outstanding civil fine, a transgression for which he could not have been incarcerated.  Nevertheless, he spent six days in jail where officials strip-searched him twice, inspected his genitals and subjected him to a delousing shower.  Turns out it was a mistake — Mr. Florence had paid the fine years before but the statewide database had not been updated.  Was this legal?  It was.  When the US Supreme Court heard Florence’s case in October 2011 in Florence v. Board of Chosen Freeholders of County of Burlington, it decided in April 2012 that the strip searches were constitutional.

The most common punishment for a misdemeanor conviction is probation and a fine, but jail remains routine.  In Richmond, Virginia, Robert Taylor, an indigent veteran, was sentenced to 20 days in jail for driving on a license that been suspended multiple times because he could not afford to pay traffic court fines.  In Beaufort County, South Carolina, a homeless man spent 30 days in jail and was sentenced to time served for the charge of trespassing at a McDonald’s.

Poverty isn’t a crime, but the misdemeanor machinery often treats it like one, incarcerating people solely because they cannot afford to pay a fine or fee.  In Augusta, Georgia, Tom Barrett was homeless, living off food stamps and the money he earned from selling his blood plasma.  He was caught stealing a $2 can of beer.  He couldn’t afford the $50 fee to apply for a public defender, so he represented himself, pleaded guilty and was placed on probation.  As part of that probation, he was required to pay over $400 in fines and fees every month.  When he couldn’t, he was sentenced to 12 months in jail. “I should not have taken that beer.  I was dead wrong,” says Barrett. “But to spend 12 months in jail … it didn’t seem right.”…

The misdemeanor system is enormous.  Thirteen million misdemeanor cases are filed every year — that’s 80 percent of state criminal dockets. This is how the American criminal system works most of the time for most people.  And its tendency to incarcerate affects millions of families — over 400,000 children have a parent in jail….

The misdemeanor phenomenon has been largely overlooked, overshadowed by the sheer harshness of its felony counterpart.  And some of that is fair enough.  Thirty-year drug sentences, solitary confinement and the death penalty do indeed make misdemeanor punishments seem petty.  But make no mistake, they are not lenient.  People are being stripped of their liberty and their money. If we really want to roll back mass incarceration and improve our criminal system, we need to shrink the massive misdemeanor pipeline and break its expensive and destructive habit of putting people in jail with so little justification.

 

Mikah Thompson (UMKC School of Law) has posted Bias on Trial: Toward an Open Discussion of Racial Stereotypes in the Courtroom (Michigan State Law Review, Forthcoming) on SSRN. Here is the abstract:

In the 2017 case Pena-Rodriguez v. Colorado, the U.S. Supreme Court discussed several safeguards that are in place to assist the trial court in identifying racial bias among jurors. These safeguards include voir dire examination regarding racial bias, observation of juror demeanor and conduct that might demonstrate racial bias, reports of racially biased comments or actions by jurors during trial, and non-juror evidence of racial bias after trial. The Court acknowledged that these safeguards may be insufficient at times and therefore added a fifth one, holding that trial courts may review evidence suggesting that racial bias was a motivating factor in a juror’s decision to convict a criminal defendant even when the evidence of bias rears its head during otherwise non-impeachable jury deliberations.

This Article demonstrates that the safeguards identified by the Court must be improved if they are to assist trial courts in ferreting out juror bias.

Social science research has made clear that a majority of Americans carry some level of subconscious or implicit bias against racial minorities and that this bias manifests itself in the application of racial stereotypes. These stereotypes can influence many aspects of the jury’s functions. Until courts and legislatures are willing to craft safeguards that will address the impact of bias head-on, the jury system will continue to be infiltrated with bias.

I believe that the first step in ridding the jury system of racial bias is to tell the truth about the prevalence and effect of bias. This includes naming the stereotypes that are at play whenever a person of color enters a courtroom. Through honest, open dialogue, we can begin to chip away at the justice system’s tradition of discrimination. I acknowledge that these truths may make us uncomfortable, but the truth and reconciliation process tells us that we can heal only after we have sat in the discomfort.

Section I of this Article explores the prevalence and impact of racial bias among jurors. This Section reviews the social science research establishing that bias, whether conscious or unconscious, affects the way we perceive those who are different from us. This Section also names many widely known stereotypes about minorities and discusses how those stereotypes affect the jury’s core functions of character assessment, witness credibility assessment, and fact interpretation and recall. Section II briefly reviews the facts of Pena-Rodriguez and discusses the two preemptive safeguards that purportedly protect parties from racial discrimination in the courtroom. This Section demonstrates that those two safeguards, voir dire and jury instructions, are not universally available to criminal defendants and, when used, are not always effective. Finally, Section III details my proposals for improving voir dire and jury instructions in a way that places the truth at the forefront and moves our system toward an open discussion of racial bias in the courtroom

Tracey Maclin (Boston University – School of Law) has posted Byrd v United States: Unauthorized Drivers of Rental Cars Have Fourth Amendment Rights? Not as Evident as it Seems on SSRN. Here is the abstract:

No discerning student of the Supreme Court would contend that Justice Anthony Kennedy broadly interpreted the Fourth Amendment during his thirty years on the Court. His majority opinions in Maryland v. King, Drayton v. United States and his willingness to join the three key sections of Justice Scalia’s opinion in Hudson v. Maryland, which held that suppression is never a remedy for knock-and-announce violations, are just a few examples of Justice Kennedy’s narrow view of the Fourth Amendment.

In light of his previous votes in search and seizure cases, surprisingly Justice Kennedy, in what would be his final Fourth Amendment opinion for a majority of the Court, authored an opinion in favor of a criminal defendant. In Byrd v United States a unanimous Court rejected the government’s argument that unauthorized drivers always lack an expectation of privacy in a rental car and thus can never challenge a police search of the car. Byrd was driving a rental car in violation of the rental agreement but with the permission of the renter; the police searched the trunk of the car, allegedly without consent or probable cause, and found heroin and body armor. The Court in Byrd held that the search was unlawful because “as a general rule, someone in otherwise lawful possession and control of a rental car has a reasonable expectation of privacy in it even if the rental agreement does not list him or her as an authorized driver.”

This article takes a closer look at Byrd to examine what it means for Fourth Amendment doctrine. It demonstrates that the Court’s holding is not as simple as it seems, and I consider whether the crucial elements of Justice Kennedy’s analysis affect the logic of prior precedents and the Court’s understanding of standing under the Fourth Amendment. While Justice Kennedy wants us to think that the reasoning and holding in Byrd is obvious, his opinion relies on property interests and societal norms that are hardly evident. Despite what Byrd says (and some scholars urge), property rights should not control the meaning and scope of the Fourth Amendment.

The Court could have reached the same result in Byrd without relying on property interests or debatable social norms. Police cannot search a motorist’s vehicle unless probable cause exists that the vehicle contains evidence of criminality. If Byrd’s operation of the vehicle was not a crime, why should he not have the same Fourth Amendment rights as other lawful drivers? The Court could have ruled simpliciter that unauthorized drivers (who are not car thieves) occupy the same seat as other drivers: police cannot search their vehicles without probable cause. Period. No need to ponder “property concepts” like a right to exclude third parties. If there is no probable cause, there can be no search. That approach would have avoided future confusion for police, judges, and the public. And it would have promoted a traditional view of the Fourth Amendment: police should not have unbridled discretion to invade the privacy of motorists.

There is an apocryphal story about a trial lawyer who asked to approach the bench and said to the judge, “Your honor, I don’t mind your trying my case for me but please don’t lose it for me.” Thanks to Judge Wayne Gorman for sending this case my way:

In R v. Quintero-Gelvez, 2019 ABCA 17 January 18, 2019, the accused was convicted of the offence of sexual assault.  He appealed from conviction.  One of the grounds raised alleged that the trial judge’s interference with his counsel’s cross-examination of the complainant caused the trial to be unfair.

The appeal was allowed and a new trial ordered. The Alberta Court of Appeal concluded that the trial judge’s interventions “compromised” the defence (at paragraph14):

A review of the transcript of the cross-examination of the complainant reveals a significant number of situations in which the trial judge prevented defence counsel from asking certain questions without having first received an objection to them from Crown counsel, or rephrasing them so that her version of the question is answered, not that of the defence. Many of these situations would not, alone, be sufficient to establish that the trial had been unfair, or that counsel had not been able to advance the defence. However, taken cumulatively and in the context of the many additional interjections made by the trial judge limiting cross-examination of the complainant, we conclude that the defence was compromised.

The Court of Appeal noted that the trial judge “interjected almost 50 times in the course of the cross-examination of the complainant” (at paragraph 13).  The Court of Appeal provided a number of examples.  One involved an attempt by defence counsel to cross-examine the complainant on what she told medical personnel, concerning the incident, when she was being examined at the hospital.

Cross-examination on Comments Made to Medical Personnel:

The Court of Appeal indicated that the trial judge “refused to allow defence counsel to ask the complainant if she had testified to events that she had not described to medical personnel attending her at the hospital:

Trial Judge: …Are you going to be asking this witness to comment on the medical records?

Defence Counsel: Very little.

Trial Judge: How can she comment on medical records that she did not prepare?

Defence Counsel: It—it –there are notes where she’s—it’s either an RN or a doctor saying what was told to her by [the complainant].

Trial Judge: I am not following you. Are you alleging that she made prior inconsistent statements to medical personnel?

Defence Counsel: Not—not inconsistent, just statement that—just statements that did not come out in testimony.

Trial Judge: But those statements would not be admissible for the truth—well, they might be admissible for the truth of their content, depending on whether the Crown is…

Crown Counsel: Well, she—

Trial Judge:–seeking to admit them as K.G.B. or something, but if they are consistent statements, they are not admissible for the truth of their content, prior consistent—

Defence Counsel: She can admit—

Trial Judge: Prior consistent statements are inadmissible.

Defence Counsel: Yeah….I want to ask her—

…

Trial Judge: I think he can ask her, Did you tell the doctor such and so.

Defence Counsel: That’s it.

Trial Judge: Well, just ask her that.

Defence Counsel: So the—doctor’s notes that I’m looking at …

Trial Judge: She cannot comment on something another person prepared.

The Court of Appeal concluded that the “last statement is an error of law”. The Court of Appeal concluded that defence counsel “was entitled to ask her if she told the doctor at the hospital that she thought she’d been drugged because she could not remember periods of time and was dizzy, and, if the medical records did not record her reporting this to the doctor, to ask her about that inconsistency” (at paragraph 22).

Jason Chin (The University of Queensland – T.C. Beirne School of Law) has posted Abbey Road: The (Ongoing) Journey to Reliable Expert Evidence ((2018) 96:3 Canadian Bar Review 422-459) on SSRN. Here is the abstract:

Canadian courts draw a tenuous distinction between expert scientific evidence and what they characterize as specialized knowledge gained through the expert witness’s experience, training, and research. This characterization is based on unclear criteria and has significant consequences. Notably, specialized knowledge regularly receives considerably less scrutiny than that which is characterized as science, while still often serving as powerful inculpatory evidence in criminal trials. Moreover, specialized knowledge is often provided by figures that carry an air of authority, like police officers and scientists. This article focuses on the leading opinion on specialized knowledge, the Court of Appeal for Ontario’s decision in R v Abbey. An analysis of Abbey’s application to three fields of contested specialized knowledge (including the evidence the Abbey Court admitted, but fresh evidence revealed as fundamentally unreliable) provides two general insights. First, while Abbey could be interpreted as providing for a flexible and probing analysis of all expert evidence, courts have often relied on it to justify giving almost no scrutiny to specialized knowledge. Second, this review of the post-Abbey jurisprudence suggests that scrutiny focused on the transparency of the expert’s data and analysis, and whether that analysis can reliably be applied to the relevant factual question, may provide a valuable way to evaluate expertise.

This new article written by Melissa Hamilton is available via SSRN.  Here is its abstract:

Algorithmic risk assessment holds the promise of reducing mass incarceration while remaining conscious of public safety.  Yet presumptions of transparent and fair algorithms may be unwarranted. Critics warn that algorithmic risk assessment may exacerbate inequalities in the criminal justice system’s treatment of minorities.  Further, calls for third party auditing contend that studies may reveal disparities in how risk assessment tools classify minorities. A recent audit found a popular risk tool overpredicted for Blacks.

An equally important minority group deserving of study is Hispanics.  The study reported herein examines the risk outcomes of a widely used algorithmic risk tool using a large dataset with a two-year followup period. Results reveal cumulative evidence of (a) differential validity and prediction between Hispanics and non-Hispanics and (b) algorithmic unfairness and disparate impact in overestimating the general and violent recidivism of Hispanics.

Youngjae Lee (Fordham University School of Law) has posted The Criminal Jury, Moral Judgments, and Political Representation (University of Illinois Law Review, Forthcoming) on SSRN. Here is the abstract:

Was the sexual act consensual? Did the defendant have a reasonable belief that he was in imminent danger of death by an attacker? Did the police use excessive force? Did the defendant act in a heinous or cruel manner? Did the defendant act with depraved indifference to human life? These are some of the questions that criminal juries encounter. Determinations of such questions involve a combination of factual and moral questions, both questions about what happened and questions about the evaluative significance of what happened. This feature of the criminal jury — that the jury routinely decides normative questions — is frequently noted but is rarely examined. What does it exactly mean when we say that juries make normative determinations, and what is the nature of the inquiry that the jurors are engaging in when they consider moral questions in this particular setting? More specifically, this Article asks whether a juror, when making moral judgments, should follow his or her individual moral beliefs or identify and implement the community’s perspective.

Many things said about the criminal jury appear to support the view that the jurors should attempt to replicate the community’s perspective. It is often said, for instance, the criminal jury serves as the community’s conscience, representative, or fiduciary, and such formulations suggest an obligation on the part of the jurors to reproduce the community’s perspective. This Article argues that despite the popularity of such accounts, they are either too indeterminate to imply an obligation on the part of the jurors to reproduce the community’s perspective, or in conflict with the fundamental obligation of jurors to adjudicate fairly and accurately. This Article, therefore, concludes that we are better off jettisoning the talk of the criminal jury as the community’s conscience, representative, or fiduciary, at least in this context, and should instead embrace the notion that jurors fulfill their roles in the criminal justice system most effectively when they vote as individuals, not as representatives, by applying legal standards to particular situations and bringing a diversity of viewpoints to the task.

Although she became Chief Judge of the DC Court of Appeals, Patricia Wald never made it to the Supreme Court, writes Linda Greenhouse, but she still had a profound impact on American law and justice. Read Greenhouse’s article in THE NEW YORK TIMES.