Thanks to Professor Douglas Berman and his Sentencing Law & Policy Blog, we are alerted to this new Marshall Project feature story about a modern risk assessment tool being used at sentencing.  The piece, carrying the main headline “The New Science of Sentencing,” merits a read in full, and here are excerpts:

Pennsylvania is on the verge of becoming one of the first states in the country to base criminal sentences not only on what crimes people have been convicted of, but also on whether they are deemed likely to commit additional crimes.  As early as next year, judges there could receive statistically derived tools known as risk assessments to help them decide how much prison time — if any — to assign.

Risk assessments have existed in various forms for a century, but over the past two decades, they have spread through the American justice system, driven by advances in social science.  The tools try to predict recidivism — repeat offending or breaking the rules of probation or parole — using statistical probabilities based on factors such as age, employment history and prior criminal record.  They are now used at some stage of the criminal justice process in nearly every state.  Many court systems use the tools to guide decisions about which prisoners to release on parole, for example, and risk assessments are becoming increasingly popular as a way to help set bail for inmates awaiting trial.

But Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself.  A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely.  Those deemed high risk could spend more time behind bars….

[T]he approach has bipartisan appeal: Among some conservatives, risk assessment appeals to the desire to spend tax dollars on locking up only those criminals who are truly dangerous to society. And some liberals hope a data-driven justice system will be less punitive overall and correct for the personal, often subconscious biases of police, judges and probation officers. In theory, using risk assessment tools could lead to both less incarceration and less crime.

There are more than 60 risk assessment tools in use across the U.S., and they vary widely. But in their simplest form, they are questionnaires — typically filled out by a jail staff member, probation officer or psychologist — that assign points to offenders based on anything from demographic factors to family background to criminal history. The resulting scores are based on statistical probabilities derived from previous offenders’ behavior. A low score designates an offender as “low risk” and could result in lower bail, less prison time or less restrictive probation or parole terms; a high score can lead to tougher sentences or tighter monitoring.

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?…

The core questions around risk assessment aren’t about data.  They are about what the goals of criminal justice reforms should be.  Some supporters see reducing incarceration as the primary goal; others want to focus on reducing recidivism; still others want to eliminate racial disparities.  Risk assessments have drawn widespread support in part because, as long as they remain in the realm of the theoretical, they can accomplish all those goals.  But once they enter the real world, there are usually trade-offs.

Deadlines for appeals or motions to reconsider are complex enough for lawyers, so it should come as no shock that self-represented people have even more difficulty. Perhaps trial courts need to take advice from Judge Richard Posner:

“To avoid this result in future cases, consideration should be given to requiring district judges to accompany their judgments in pro se cases with a statement of the options and associated deadlines for reconsideration or appeal of the judgment.” Circuit Judge Richard A. Posner issued this decision recently on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit in a case involving an imprisoned pro se appellant.

Former President George W. Bush reported for jury duty recently. President Bush reported to the George Allen Courts Building in Dallas and Judge Eric Moye took the opportunity to talk about the importance of everyone reporting for jury duty:

“One of the remarks I made to [the] jury was all of you have some reason why you have to do something else. But take a look over and see you have the former president who has given his time to be here, so think how good your excuses for getting out of here really are.”

President Bush never did get to actually serve.  “He was number 27 of a 35 member panel and we only got through number 23,” Judge Moye told the Dallas Morning News.

A federal appellate court has ruled that an ordinance banning a certain form of panhandling downtown is unconstitutional.

The panhandlers Don Norton and Karen Otterson filed a class action lawsuit in which they alleged the City of Springfield violated their First Amendment right to free speech through an ordinance banning oral requests for immediate monetary donations in the city’s downtown. They also claimed certain Springfield police officers harassed them outside of the downtown, using a state law regarding business solicitations along roadsides.

A three-judge panel of the U.S. Court of Appeals for the Seventh Circuit ruled that the city’s panhandling ban doesn’t pass a test created in Reed v. Gilbert which held that more strict regulations on certain signs than on others was “content-based” regulation, a form of discrimination based on the sign’s message. Applying the Reed decision to Norton and Otterson’s case, the 7th Circuit panel held that the City of Springfield had failed to provide a “compelling justification” for why it should be allowed to distinguish between an unpopular form of speech– panhandling — and other forms of speech.

Professor Eugene Volokh had this short piece in the Washington Post recently about the Michigan Court of Appeals decision in Wehbe v. Wehbe:

As a reviewing court, we rely on the trial court to make credibility assessments and we are substantially assisted when the trial court refers to such assessments on the record. However, such references should always be consistent with a court’s duty to treat the parties in a patient, dignified, and courteous manner. Assessments of credibility stated informally in phrases such as “completely full of it” and “full of it up to your eyeballs” lack dignity and courtesy and are of less assistance to this Court, as the tone suggests that the trial court may be motivated by pique rather than an objective credibility determination. We urge the trial court to use more judicious language in the future.

There is a recent Seventh Circuit case that might best be described as an admonition to “watch your language when sentencing.”  (See United States v. Sandidge.)

In that case, the trial court had imposed several standard and special conditions of supervised release.  The Seventh Circuit vacated all of these conditions because the sentencing court offered no explanation as to their propriety, and conducted no review of the statutory sentencing factors.  The court noted that several of the conditions were too vague, including requirements that Appellant meet “family responsibilities” and “not associate with any persons engaged in criminal activity.”  The court also noted that several conditions were broader than necessary, such as a requirement not to “consume . . . any mood-altering substances.”

The opinion says, in part:

We have previously found that several of those [standard conditions] imposed on Sandidge suffer from fatal degrees of vagueness. See Thompson, 777 F.3d at 375, 376-80. These include, paraphrased, the requirements that Sandidge:

Support his dependents and meet other family responsibilities;

Notify the probation officer at least ten days prior to any change of employment;

Not associate with any persons engaged in criminal activity, and not associate with any person convicted of a felony unless given permission to do so by the probation officer; and

Not frequent places where controlled substances are illegally sold, used, distributed, or administered.

Without further explanation by the court, these conditions are too vague to provide adequate notice to the defendant as to what conduct is prohibited. Under Thompson, should any of these conditions be reimposed, they must be further defined in order to provide Sandidge with proper notice as to what conduct is prohibited.

Likewise, we have previously found that several of the conditions imposed on Sandidge are too broad to meet the statutory requirement that they “involve[ ] no greater deprivation of liberty than is reasonably necessary for the purposes set forth” in the applicable § 3553(a) provisions. See 18 U.S.C. § 3583(d)(2); see also Thompson, 777 F.3d at 375, 376-80. These include, again paraphrased, the conditions that Sandidge:

Answer truthfully all inquiries by the probation officer; and

Permit the probation officer to visit him at any time at home.

Mary Moriarty, chief public defender for Hennepin County public defender office in Minneapolis, Minnesota, has been selected as the 2015 Stephen B. Bright Award recipient from Gideon’s Promise.

Gideon’s Promise is a nonprofit organization that works tirelessly to mobilize and train public defenders to provide the highest quality representation to people unable to afford an attorney.

The Stephen B. Bright Award – whose namesake continues to be one of the nation’s greatest champions for indigent defense in the South and beyond – is given annually to a member of the Gideon’s Promise community who has done the most to help support and drive the organization’s effort to build a movement to transform indigent defense.

“Mary has been a core faculty member for Gideon’s Promise since its inception,” says Jonathan Rapping, founder of Gideon’s Promise and MacArthur Genius Fellow. “She volunteers countless hours training and mentoring our public defenders, and helping develop curriculum. Mary has also been one of our strongest ambassadors. She frequently uses social media, speaking invitations and interview opportunities to raise awareness of Gideon’s Promise’s work and its impact on criminal justice reform. We are proud to give this year’s honor to Mary.”

Recently celebrating her one year anniversary as the head of the Hennepin County public defender office, Moriarty has worked to bring many of the lessons of Gideon’s Promise to her staff. She continuously looks for ways to help build a movement for reform where the need is the greatest and to engage in outreach to build support for our efforts.

To learn more about Gideon’s Promise and the work it is doing, visit http://gideonspromise.org/, or contact (404) 921-3836.

Submissions for the 2016 Trends in State Courts are now being accepted.

Trends is the only publication of its kind and enjoys a wide circulation among the state court community. It is distributed in hard copy and electronically.

Please email abstracts of no more than 500 words by October 15, 2015 to Deborah Smith at dsmith@ncsc.org.  Abstracts received after this date are welcome and will be considered for inclusion in our monthly online edition.

Visit the Trends in State Courts website here.

Federal judges have no mandatory retirement, and as a result they can keep working on cases and avoid the disruption a retirement can cause mid-litigation. States frequently have mandatory retirement requirements for judges and, as the ABA Journal article points out, these retirement mandates would make it virtually impossible to have a 93 year-old judge handle a case that has been going on for 44 years.

Forty-four years after then-U.S. District Judge Damon Keith found evidence of housing discrimination by a Detroit area community, the case still isn’t over.

Keith is now 93 years old and a federal appeals judge, and he wants the case wrapped up, the Associated Press reports. Keith still oversees the case despite his elevation to the Cincinnati-based 6th U.S. Circuit Court of Appeals.

According to the AP account, Keith told lawyers during a recent meeting in his office that, “This thing can’t go on … I’m not a quitter.”  Keith added, though, “I just get tired,” and – if the case can’t be resolved soon – another judge will take over.

The community of Hamtramck, Michigan, had resolved the discrimination case with an agreement to offer 200 family housing units, as well as 150 units for senior citizens. The town still hasn’t developed three of the promised houses, and it doesn’t have enough money on hand to fund the construction.

The lawyer representing the civil rights plaintiffs, Michael Barnhart, is seeking a court order to force the city to pay for the remaining units, the Hamtramck Review reported in June.

The city is criticizing $900,000 in legal fees paid to Barnhart over the last four years. According to a legal filing by the city, the money “could have been used to finish the remaining three houses and finally bring an end to this litigation.”

Barnhart refused to comment on litigation matters when contacted by the Hamtramck Review. In court documents, he said dealing with agencies helping Hamtramck meet its housing goal is “complex and difficult.”

Kevin M. Clermont (Cornell Law School) has posted Trial by Traditional Probability, Relative Plausibility, or Belief Function? on SSRN.

Here is the abstract:

Almost incredible is that no one has ever formulated an adequate model for applying the standard of proof. What does the law call for? The usual formulation is that the factfinder must roughly test the finding on a scale of likelihood. So, the finding in a civil case must at least be more likely than not or, for the theoretically adventuresome, more than 50% probable. Yet everyone concedes that this formulation captures neither how human factfinders actually work nor, more surprisingly, how theory tells us that factfinders should work.

An emerging notion that the factfinder should compare the plaintiff’s story to the defendant’s story might be a step forward, but this relative plausibility conjecture has its problems. I contend instead that the mathematical theory of belief functions provides an alternative without those problems, and that the law in fact conforms to this theory. Under it, the standards of proof reveal themselves as instructions for the factfinder to compare the affirmative belief in the finding to any belief in its contradiction, but only after setting aside the range of belief that imperfect evidence leaves uncommitted. Accordingly, rather than requiring a civil case’s elements to exceed 50% or comparing best stories, belief functions focus on whether the perhaps smallish imprecise belief exceeds its smallish imprecise contradiction. Belief functions extend easily to the other standards of proof. Moreover, belief functions nicely clarify the workings of burdens of persuasion and production.