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.

Should We Abandon Jury Secrecy?

are you crazy some lawyers and judges will say. Perhaps they are right but Daniel Harawa (Washington University School of Law) has posted Sacrificing Secrecy (Georgia Law Review, Vol. 55 (2021)) on SSRN. it is a provocative commentary.

Here is the abstract: Juries have deliberated in secret since medieval times. The historical reason for the secrecy is that it promotes impartiality, which in turn protects a defendant’s right to a fair trial. But as it turns out, jurors are not always impartial. Lurid examples exist of jurors condemning defendants based on the defendant’s race, sexuality, ethnicity, and religion.

Generally speaking, courts cannot hear evidence of what transpired during deliberations. In 2017, however, the U.S. Supreme Court created an exception to this rule, holding that the Sixth Amendment requires courts to hear evidence of jurors making racially biased statements. But this exception means little if defendants have no way to uncover the bias. And because juries deliberate in private, it is incredibly difficult for defendants to discover what the jury discussed during deliberations.

This Article questions the wisdom of secret deliberations. It traces the history of jury secrecy and the public policy considerations that support secret deliberations, and it catalogs past attempts to record deliberations. It then discusses the racial bias exception to the jury no-impeachment rule created by the U.S. Supreme Court and explains how it is insufficient because it does not provide a mechanism for detecting bias. This Article then proposes a unique fix: that deliberations be memorialized and made part of the record in criminal cases. At times, secret deliberations frustrate, rather than promote, defendants’ fair trial rights. Accordingly, the practice of secret deliberations should be revisited.

Fairness Challenge

Emily LaGratta is one of the nation’s most committed advocates of procedural fairness. She has a new procedural fairness push: a partnership with the National Center for State Courts to offer two free “training” opportunities as part of a Fairness Challenge this April 2021. They’re not traditional trainings, actually, but one goal certainly is to have participants learn something!

There are two ways for court professionals and court teams to participate. In both cases, participants commit to engaging with the project only a few minutes a day for 4 weeks, then try out some new practices within their regular workday. OPTION 1. Three courts will be selected to receive complimentary “teeny course” training, which includes daily, interactive lessons delivered by email.OPTION 2. Individuals and court teams are invited to prioritize one bite-sized fairness practice each day for a month. It’s like an exercise challenge to stretch our fairness muscles, bit by bit. 
Registration closes March 10th, 2021. Participation prizes are available for all. 🙂
Register and learn more

When Can The Police Come In Your House Without A Warrant?

“The 2016 police encounter involving retired California real estate agent Arthur G. Lange seemed routine, more likely to be on the TV show Cops than one destined for a major Fourth Amendment confrontation in the U.S. Supreme Court.The case involves a police officer who entered Lange’s garage without a warrant and questioned Lange after pursuing his vehicle because he heard erratic horn-blowing and loud music coming from the car.The question in Lange v. California, scheduled for argument Wednesday, is whether police officers who pursue someone suspected of a misdemeanor into a home may conduct a warrantless search or seizure. It is well-established that police in “hot pursuit” of a suspected felon in public may follow that suspect into a residence.The new case addresses whether pursuit of a misdemeanor suspect qualifies categorically as an exigent circumstance allowing an officer to enter a home without a warrant.” 
For the complete story  Mark Walsh has this report online at ABA Journal.

Lange v. California is a link to all the pleadings in the case.

Prime Minister launches process to select the next justice of the Supreme Court of Canada

The Prime Minister, Justin Trudeau, today launched the process to select the next justice of the Supreme Court of Canada, who will fill the vacancy created by the upcoming retirement of Justice Rosalie Silberman Abella.

The Prime Minister also announced the members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. This non-partisan board is responsible for identifying candidates who are jurists of the highest caliber, functionally bilingual, and representative of the diversity of our country. The seven-member advisory board will be chaired by former Prime Minister Kim Campbell. The advisory board will review applications, and submit a shortlist of highly qualified candidates for consideration by the Prime Minister.

Justice Abella was appointed to the Supreme Court of Canada from the Ontario Court of Appeal in 2004. In recognition of the convention of regional representation, the process will be open to all qualified applicants from Ontario.


“To appoint the next justice of the Supreme Court of Canada, we are launching an open and independent process that will identify the most exceptional Canadian lawyers and judges, while recognizing regional representation and the diversity of our country. On behalf of all Canadians, I also thank Justice Abella, the court’s longest-serving member, for her leadership, excellence, and dedication on our highest court over the past 17 years.”The Rt. Hon. Justin Trudeau, Prime Minister of Canada

Quick Facts

  • Qualifying candidates who wish to be considered for the upcoming vacancy must submit an application package no later than 23:59 Pacific time on April 2, 2021.
  • Those interested in applying are encouraged to first review the statutory requirements set out in the Supreme Court Act, and the qualifications and assessment criteria that will guide the advisory board in evaluating a candidate’s suitability.
  • Candidates may demonstrate they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with the province of Ontario.
  • In 2016, the Government of Canada announced a new process for Supreme Court of Canada judicial appointments. It included the creation of an independent and non-partisan advisory board to identify qualified and suitable candidates for appointment to the Supreme Court of Canada.
  • The following members have been named to the advisory board:
    • The Right Honourable Kim Campbell (Chairperson): former Prime Minister of Canada and Canadian Consul General, and the Founding Principal of the Peter Lougheed Leadership College at the University of Alberta.
    • Erika ChamberlainDean of Law, University of Western Ontario.
    • The Honourable Louise Charron: retired justice of the Supreme Court of Canada.
    • Signa A. Daum ShanksProfessor, Osgoode Hall Law School.
    • David Henry: Chief Executive Officer, Association des services de réhabilitation sociale du Québec.
    • Jill Perry: Managing lawyer, Nova Scotia Legal Aid.
    • Beverley Noel Salmon: former municipal councillor, and Commissioner, Ontario Human Rights Commission.
  • Justice Abella will retire from the Supreme Court of Canada effective July 1, 2021.

Why Would Anyone Falsely Confess To A Crime?

False confessions though rare do happen. Our visceral reaction is if you confessed you are guilty. After all why would anyone confess, particularly ro a serious crime, if they did not do it. Yet we know false confessions occur. There is an interesting  new article available via SSRN and authored by Andrew Pardieck, Vanessa Edkins and Lucian Dervan. Here is its abstract:

The authors conducted a multi-year psychological deception study in the United States, Japan, and South Korea to gain greater understanding of the phenomenon of false pleas of guilty by the innocent.  The study also explored whether innocent participants would be willing to offer false testimony in return for the benefits of a plea bargain.  Our data indicate that a significant number of individuals are not only willing to falsely plead guilty in return for a benefit, they are also willing to falsely testify against others in official proceedings to secure those advantages for themselves.

This is the first time laboratory research has demonstrated the false plea phenomenon in different countries, cultures, and legal systems.  It is also the first time laboratory research has documented the phenomenon of false testimony in return for the benefits of a plea bargain.  The article also contains information regarding the history of plea bargaining in the United States, Japan, and South Korea, a discussion of the current debate about plea bargaining in each jurisdiction, and a brief review of potential paths forward to address plea bargaining’s innocence problem.

Do You Think That Guy was Smoking Weed?

William McNichol has posted Toward A Rational Policy For Dealing With Marijuana Impairment – Moving Beyond ‘He Looked Buzzed To Me, Your Honor’ (McNichol, W.J., Toward A Rational Policy For Dealing With Marijuana Impairment – Moving Beyond “He Looked Buzzed To Me, Your Honor” 45 So. Ill. U. L.J. 1 (2020)) on SSRN. Here is the abstract: This paper examines how marijuana impairment is currently proven, especially in states where marijuana has been legalized under state law. Much of the currently used proofs, and in particular testimony of purported Drug Recognition Experts, and some legislatively imposed standards are scientifically unsound and their use should be discontinued or severely limited. It is recommended that development of a valid biochemical proxy for marijuana impairment should be a priority funding item in states where marijuana is legalized.

What Should A Judge Say At Sentencing?

For decades sound social science research has shown that the explanation a judge gives for sentencing is a critical factor in achieving procedural fairness. But there are risks. You could say something a bit inarticulate and draw criticism or reversal. There are no easy answers to this dilemma. If it is a thought driving your decision shouldn’t transparency rule the day?

Thanks to Judge Wayne Gorman there is this Canadian decision to tee up the discussion.

R. v. Abdullahi, 2021 ONCA 82, February 8, 2021, at paragraphs 11 to 113:

The appellant is a black man. In considering the fit sentence for the appellant, the trial judge wrote the following as part of his discussion of the need to apply the principles of denunciation and deterrence for offences involving the trafficking of firearms:

Crimes involving the use of firearms that are committed by people of racial minorities, such as the defendants, may lead to stereotypical or other racist attitudes against the minority group at large.

The appellant submits that this comment was an improper basis for increased emphasis on principles of deterrence and denunciation over rehabilitation or mitigating factors. In his factum, the appellant submits: 

The implicit logic of this statement is that crimes committed by members of marginalized communities that align with stereotypes or other prejudicial beliefs about their community are necessarily more serious and merit greater denunciation because they can reinforce bigoted attitudes. Although the intent of this consideration may be well-meaning and motivated by a desire to reduce prejudice, its result is to apply a unique aggravating factor to members of minority groups, and convey that marginalized offenders are responsible for bigotry directed against their communities. Effectively, this would require longer sentences for offenders from marginalized backgrounds whenever they commit crimes that bigots believe their community is more prone to committing, as a punishment for reflecting poorly on their community. This was improper.

I accept the appellant’s submission about the implicit logic of the trial judge’s comment and the risk that it applies a unique aggravating factor to members of minority groups. While I have no doubt that the trial judge made the comment in furtherance of the fundamental purpose of sentencing to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society, his apparent imposition of a unique aggravating factor on members of minority groups has no place in Canadian sentencing principles. It was an error for the trial judge to have made that statement.

What To Do About Colorado?

Among all of the states Colorado has a tradition is strong judicial leadership and innovative approaches to there justice system. But in recent days there have been a series of stories by the Denver Post that surely must upset the admirers and supporters of Colorado courts. It has culminated in an editorial that begins “Colorado Chief Justice Brian Boatright has one more chance to reform the Judicial Department; Colorado voters should prepare to force change upon a branch of government that operates in an unaccountable silo”:
 The Denver Post has published an editorial that begins, “The Colorado Judicial Department is operating in an unaccountable silo where the chief justice of the Colorado Supreme Court wields power without transparency or oversight. The Denver Post has spent two years uncovering evidence of judicial misconduct being hidden from the public. Something must change.”