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.

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

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.

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

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. 

(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

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.

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.

“It was after the insurance company told me there was no coverage that I really fell apart.” When the police “take” your home by destroying it during a hostage-rescue, should they have to compensate you for your loss? A Texas case may answer that question. REASON

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.