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.

Excessive Fines

Candidly reform of how the justice system reforms how fines and fees are imposed should not start with are they unconstitutional. But understanding the constitutional analysis is important.

This new article now available via SSRN authored by Beth Colgan will help your understand. Here is its abstract:

A key component is missing from the Eighth Amendment’s excessive fines clause doctrine: who has the burden of proof?  This question — which has been essentially ignored by both federal and state courts — is not just a second order problem.  Rather, the assignment of burdens of proof is essential to the clause’s enforcement, making it harder — or easier — for the government to abuse the revenue generating capacity of economic sanctions in ways that can entrench poverty, particularly in heavily-policed communities of color.

This Article takes on this question by first sorting through a morass within the U.S. Supreme Court’s due process doctrine as it relates to assessing the fundamental fairness of procedural practices, including the assignment of burdens of proof.  After offering a framework that reconciles the doctrine, it applies that frame to the excessive fines context by breaking the “burden of proof” into four component parts: the burden to raise the excessive fines claim, the burden of producing evidence relevant to that claim, the burden of persuading the decisionmaker as to the result, and the standard of proof to be employed in that determination.  While the government and private interests at stake remain constant across these various burdens, disentangling them allows a more exacting inquiry into the risk of an erroneous imposition of excessive fines.  In particular, it allows examination of how lawmakers have crafted related processes and structures—such as the refusal to provide counsel or the vast array of collateral consequences attached to both non-payment and conviction — that make it more likely that abuses of power will occur absent the check on authority burdens of proof can help provide.

The Untold Story Of Dual Sovereignty

Stephen E. Henderson and Dean A. Strang (University of Oklahoma – College of Law and Loyola University Chicago School of Law) has posted Behind Bartkus: A Flamboyant Lawyer, a Vindictive Judge, and the Untold Story of Double Jeopardy’s Dual Sovereignty (New Criminal Law Review (forthcoming 2021)) on SSRN. Here is the abstract: A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the ‘impartial’ judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from service for life, refuses to release the defendant, and prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime.

To anyone who respects the rule of law—or at the very least to anyone who respects the American jury—this should be deeply troubling. Yet when it took place in a Chicago federal courtroom in December 1953, state prosecutors leapt at the federal judge’s call. And when the appeal of the duplicative state prosecution reached the United States Supreme Court, the defendant lost 5-4. Criminal practitioners know that result as Bartkus v. Illinois, 359 U.S. 121 (1959), a rule of double-jeopardy ‘dual sovereignty’ that the Court reaffirmed in 2019. But next to nobody appreciates how it began in that Chicago federal courtroom. That history comes to life in the unpublished notes of the remarkable defense lawyer. It is a story that underscores just how wrongheaded is the legal rule, and that makes vivid the abuse of judicial power.

Taking Restorative Justice Seriously

Restorative justice has a lot of support within the judiciary. The theory is hard to argue about but is the devil in the details? There is The title of this acticle authored by Adriaan Lanni and now available via SSRN that sheds light on restorative justice. Here is its abstract:

Those seeking to reduce mass incarceration have increasingly pointed to restorative justice — an approach that typically brings those affected by a criminal offense together in an attempt to address the harm caused by the offense rather than to mete out punishment.  This Article is an attempt to think seriously about incorporating restorative justice throughout the criminal legal system.

For restorative justice proponents, expanding these practices raises a host of questions: Does the opportunity to alleviate mass incarceration justify collaboration with a deeply flawed criminal legal system?  Will the threat of criminal prosecution destroy the voluntariness and sincerity that is essential for a successful restorative process?  Can restorative justice be successfully used in cases where the victim cannot participate or there is no identifiable victim, as in drug offenses?  Will the process be coopted by bureaucratic impulses?  Restorative justice skeptics may ask whether applying a restorative approach to the most serious crimes will jeopardize the deterrent value of criminal law and lead to outcomes that are vastly disproportionate.  Those both inside and outside the movement will ask whether restorative justice can be implemented in a way that protects defendants’ procedural rights and is racially equitable.

I explore the choices and trade-offs that would be involved in expanding restorative justice to significantly reduce incarceration.  I argue that restorative justice can be expanded without significant adverse impacts on due process, racial equity, and proportionality.  At the same time, vastly expanding restorative justice entails compromising some key features of restorative justice.  I suggest that the disadvantages of expansion are significant, but are outweighed by the moral imperative to experiment with alternatives to mass incarceration.

When Can Police Enter Suspects Homes?

By CrimProf Blog

The podcast, available here, discusses Lange v. California. From the introduction:

The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more.

How To Insure Sanctions In Drug Courts Are Fair

Since the inception of drug courts there has been a struggle to insure procedural due process. Early advocates of drug courts claimed that drug courts could not be effective within an adversarial system. There were critics of this approach most notably defense lawyers.  There are no easy answers. Addictive behavior that is part of chemical dependency is not an easy thing to deal with. Yet the mind set of “I am doing this for your own good” can lead to judicial arrogance. It can undermine procedural fairness which values voice by litigants and respect for litigants. 

“Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions” is the  title of this article authored by Michael Sousa on available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These spec that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.ialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice

Berkeley CA Will Restrict Police Stops

The Berkeley City Council voted unanimously Tuesday night to approve a package of policy changes aimed at reforming policing in the city by reducing racial disparities in traffic enforcement.

“While Berkeley has a long history of progressive leadership, we are not immune from issues of systemic racism in policing and our criminal justice system,” Jesse Arreguín, mayor of the California city, told The Appeal.

Berkeley police will no longer be able to stop drivers for only minor traffic violations like equipment violations, expired vehicle registration, or not wearing a seatbelt. Instead, police will be directed to conduct traffic stops only for violations that endanger public safety, such as excessive speeding, running a red light or stop sign, and driving under the influence.

A person can still be cited for low-level offenses if they are pulled over for a public safety reason. For example, if a person is pulled over for speeding and they are driving with an expired registration, they will get ticketed for both, Arreguín said.

The Berkeley Police Association opposed the reforms, saying in a statement that they “will turn officers into filing clerks, gutting their much-needed time on the streets within our community.”

The policy package grew out of a working group Arreguín convened last yearon fair and impartial policing, which formed after the release of a 2018 study by the Center for Policing Equity. The study found that Black and Hispanic people were more than six times more likely than white people to be stopped by the Berkeley Police Department while driving and more than four times more likely to be stopped while walking. 

Should You Sequester Witnesses?

By Evidence ProfBlogger 

Texas Rule of Evidence 614 provides that 

At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:

(a) a party who is a natural person and, in civil cases, that person’s spouse;

(b) after being designated as the party’s representative by its attorney:

(1) in a civil case, an officer or employee of a party that is not a natural person; or

(2) in a criminal case, a defendant that is not a natural person;

(c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or

(d) the victim in a criminal case, unless the court determines that the victim’s testimony would be materially affected by hearing other testimony at the trial.

So, can a defendant in a family violence case have a family-violence expert excluded from the courtroom when he testifies? That was the question addressed by the Texas Court of Appeals, Waco, in its recent opinion in Parrish v. State, 2021 WL 627934 (Tex.App. 2021).

In Parrish, Marcus Parrish was charged with assault family violence and sought to invoke Rule 614 to exclude a family-violence expert from the courtroom testimony. The judge denied his request, Parrish was convicted, and he appealed. On appeal, the court concluded thatthe Court of Criminal Appeals has held that a trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule,” so they may hear other witnesses testify and then base their opinions on such testimony….Prior to appellant’s testimony during the guilt-innocence phase of trial, appellant objected to the presence of Detective Michelle Starr of the Waco Police Department in the courtroom during his testimony, arguing that she is a fact witness in the case because she was the detective on the case, and because she drafted and signed the arrest-warrant affidavit. The State responded that Detective Starr had been designated as an expert in Assault Family Violence and that her presence was necessary to “observe the way [appellant] answers the questions and—and the way he behaves in the courtroom to be able to testify to that,” especially with regard to relationships between “assault family violence victims and perpetrators.”As noted above, the Court of Criminal Appeals has held that the trial court is vested with discretion and may permit expert witnesses to be exempt from “the Rule” so they may hear other witnesses testify and then base their opinions on such testimony….Therefore, in line with these cases, we find no abuse of discretion. The purpose articulated by the State regarding Detective Starr’s testimony—allowing a domestic violence expert to take appellant’s testimony into account when offering her opinion—falls within the exemptions provided for in the rule.

The Dangers of Eyewitness Identification? Innocent People Maybe Convicted

Boaz Sangero (Sapir Academic College) has posted Applying the STAMP Safety Model to Prevent False Convictions Based on Eyewitness Misidentifications (Albany Law Review, Vol. 83, 2020) on SSRN. Here is the abstract: In many criminal law systems, eyewitness identification of a suspect is sufficient to establish that they are the perpetrator of the crime in question, without any need for additional corroborating evidence. But this lofty legal status stands in contrast to the undisputed assertion in the professional literature that an erroneous eyewitness identification is far from rare, with many scholars holding it to be the most common cause of false convictions. On this background, this Article offers ways of reducing the rate of false convictions based on eyewitness misidentifications. The Article argues for the creation and application of a safety theory in the criminal justice system, specifically regarding eyewitness identifications. Therefore, after the Article connects between the modern theory of safety, which is well developed in other areas of our life, and the new theory of safety from false convictions; and after a deep discussion of one of the most serious hazards in criminal law — the hazard of false convictions based on eyewitness misidentifications — a specific safety model shall be developed, based on these discussions and on the innovative STAMP safety model. The substance of the suggested rules is based on both the psychological research and the legal literature. The high rate of false convictions is not an inevitable fate.

Viral Injustice

Viral Injustice is the title of a new article now available via SSRN authored by Brandon Garrett and Lee Kovarsky.  Here is its abstract:

The COVID-19 pandemic blighted all aspects of American life, but people in jails, prisons, and other detention sites experienced singular harm and neglect.  Housing vulnerable detainee populations with elevated medical needs, these facilities were ticking time bombs.  They were overcrowded, underfunded, unsanitary, insufficiently ventilated, and failed to meet even minimum health-and-safety standards.  Every unit of national and sub-national government failed to prevent detainee communities from becoming pandemic epicenters, and judges were no exception.

This Article takes the comprehensive look at the decisional law growing out of the COVID-19 detainee litigation, and situates the judicial response as part of a comprehensive institutional failure.  We read hundreds of COVID-19 custody cases, and our analysis defines the decision-making by reference to three attributes: the substantive right asserted, the form of detention at issue, and the remedy sought.  Several patterns emerged.  Judges avoided constitutional holdings whenever they could, rejected requests for ongoing supervision, and resisted collective discharge — limiting such relief to vulnerable subpopulations.  The most successful litigants were detainees in custody pending immigration proceedings, and the least successful were those convicted of crimes.

We draw three conclusions that bear on subsequent pandemic responses — including vaccination efforts — and incarceration more generally.  First, courts avoided robust relief by re-calibrating rights and remedies, particularly those relating to the Eighth and Fourteenth Amendments.  Second, court intervention was especially limited by the behavior of bureaucracies responsible for the detention function.  Third, the judicial activity reflected entrenched assumptions about the danger and moral worth of prisoners that are widespread but difficult to defend.  Before judges can effectively respond to pandemic risk, nonjudicial institutions will have to treat it differently than other health-and-safety threats, and judges will have to overcome their empirically dubious resistance to decarceration.