The struggle for fair courts continues in Kansas.  In June, Gov. Sam Brownback (R) signed a bill that could defund the entire Kansas judiciary.  Last week, Larry T. Solomon, the chief judge for Kansas’ Thirtieth Judicial District, filed a brief threatening to challenge the controversial budget bill, arguing that intimidating the courts erodes public confidence in an independent and impartial judiciary. The Brennan Center is part of the legal team representing Judge Solomon.

Alan Butler (Electronic Privacy Information Center) has posted Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California (Duke Journal of Constitutional Law & Public Policy, Vol. 10, 2015) on SSRN.

Here is the abstract:

The Roberts Court will likely be remembered for its decision to uphold the Affordable Care Act, its same-sex marriage-rulings, and its decisions in First Amendment and corporate-speech cases; but this Court should also be remembered for ushering in the era of digital Fourth Amendment rights. The Court has not only addressed how Fourth Amendment standards will apply to changing communications technologies, it has also gone out of its way to learn and understand how new technologies will affect the balance of power between the government and citizens. We have come a long way from Chief Justice Roberts’ question during oral argument in City of Ontario, California v. Quon: “[M]aybe everyone else knows this, but what is the difference between a pager and e-mail?”

In Riley v. California the Court answered — in a unanimous, nine- to-zero decision — the question of whether the police must obtain a warrant prior to searching an individual’s cell phone incident to a lawful arrest.

The Court said, simply and unequivocally, yes, “get a warrant.” Moreover, the Court directly addressed the impact of ever- expanding digital storage, the proliferation of smartphones, and the implications of encryption and access to cloud-based services. The opinion reflected the Court’s newfound understanding of modern communications technologies and their impact on civil rights. It stands as one of the strongest and clearest proclamations of Fourth Amendment rights in the Court’s history.

This article will explore the implications of the Riley decision on future Fourth Amendment cases, including cases challenging the bulk collection of telephone metadata. The article will review the background of Riley and the search-incident-to-arrest doctrine, and describe the new categorical rule adopted by the Court. The article will then consider how the Riley decision will affect lower court rulings on important Fourth Amendment issues: the scope of the search-incident-to-arrest and border-search exceptions, whether the collection of metadata and location information is a search, and the rules governing seizure of electronic records.

Chief Federal District Judge John Tunheim, Minnesota District Court Judge Jeanice Reding and I participated in an hour long round table discussion of racial inequality, sentencing reform and drug crimes, among other topics.

Here is the link.

Gallup put out its semi-regular ratings of the major public institutions. ..and the results are depressing, if not entirely shocking:

There are three institutions — the military, police and small businesses — that a majority of Americans have a “great deal” or “quite a lot” of confidence in. The other 12 institutions all inspire less confidence and, broadly, far less confidence than their historic averages in the Gallup data.

This paragraph, via Gallup’s Jeffrey Jones, is absolutely stunning:

Americans’ confidence in all institutions over the last two years has been the lowest since Gallup began systematic updates of a larger set of institutions in 1993. The average confidence rating of the 14 institutions asked about annually since 1993 — excluding small business, asked annually since 2007 — is 32% this year.

32 percent!

That means that just one in three people have a lot of confidence in 14 of the most bedrock institutions in our society from business to labor to TV to schools to, yes, Congress. (Congress is the institution that is running the farthest behind its historical norms. Don’t act surprised.)

What’s even more remarkable is that not one institution has risen upward in public estimation to fill the void left by the falling faith in others. In short: We’ve lost faith in the institutions that long served as a sort of societal safety net, but we haven’t replaced them with anything. We are, as a country, living without a net.

That feeling — that if you fall there will be nothing and no one to catch you — drives a deep societal anxiety about the country and its future. It’s why you have record numbers of people questioning whether the American dream can still be achieved and expressing deep (and long-held) pessimism about the where the country is headed.

And it’s why politicians — from President Obama on down — have struggled to articulate a positive vision for the future that doesn’t feel totally out of touch with the deep-seated pessimism and anxiety coursing through the electorate.

Here’s Obama from his 2014 State of the Union address:

What I believe unites the people of this nation, regardless of race or region or party, young or old, rich or poor, is the simple, profound belief in opportunity for all, the notion that if you work hard and take responsibility, you can get ahead in America.

Now, let’s face it:  That belief has suffered some serious blows. Over more than three decades, even before the Great Recession hit, massive shifts in technology and global competition had eliminated a lot of good, middle-class jobs and weakened the economic foundations that families depend on.

Today, after four years of economic growth, corporate profits and stock prices have rarely been higher, and those at the top have never done better. But average wages have barely budged. Inequality has deepened. Upward mobility has stalled. The cold, hard fact is that even in the midst of recovery, too many Americans are working more than ever just to get by; let alone to get ahead. And too many still aren’t working at all.

And Hillary Clinton from her presidential announcement:

“We’re standing again. But, we all know we’re not yet running the way America should.”

Here’s Marco Rubio’s take on the conundrum:

My parents achieved what came to be known as the American Dream. But now, too many Americans are starting to doubt whether achieving that dream is still possible: Hard working families living paycheck to paycheck, one unexpected expense away from disaster . . . Young Americans, unable to start a career, a business or a family, because they owe thousands in student loans for degrees that did not lead to jobs . . . And small business owners, left to struggle under the weight of more taxes, more regulations and more government.

Why is this happening in a country that for over two centuries has been defined by equality of opportunity?

Then there’s always the more direct approach favored by Donald Trump:

The challenge for any politician on the ballot in 2016 — particularly those running for president — is to find a way to give people something to latch onto amid all of the chaos that surrounds them. Judging from the Gallup numbers, we are in desperate need of something to believe in.

James Gill (Thompson Rivers University) has posted Permissibility of Colour and Racial Profiling (Western Journal of Legal Studies, Vol. 5, No. 3, 2015) on SSRN.

Here is the abstract:

Racial profiling in law enforcement is a contentious matter, particularly in light of U.S. police-citizen race tensions. The racial profiling debate has not been settled. Racial profiling proponents view it as a tool to effectively uncover criminal activity among certain racial groups. Critics find that racial profiling perpetuates racial stigmas and is largely inefficient as a policing tool. This article explores the ongoing debate and offers an overview of the Canadian judicial experience with racial profiling. The author proposes a middle-ground solution where racial profiling may be used under certain constraints imposed on law enforcement. The author suggests that the Crown provide justificatory evidence for the use of racial profiling when it is raised as a defence by the accused.

From the Sentencing Law & Policy blog, the title of this post is the title of this notable new report authored by Jessica Eaglin and Danyelle Solomon for the Brennan Center for Justice.

Here is how the report is summarized:

People of color are overrepresented in our criminal justice system. One in three African American men born today will be incarcerated in his lifetime. In some cities, African Americans are ten times more likely to be arrested when stopped by police. With the national debate national focused on race, crime, and punishment, criminal justice experts are examining how to reduce racial disparities in our prisons and jails, which often serve as initial entry points for those who become entangled in the criminal justice system.

This report, which relies on input from 25 criminal justice leaders, pinpoints the drivers of racial disparities in our jails lays out common sense reforms to reduce this disparity, including increasing public defense representation for misdemeanor offenses, encouraging prosecutors to prioritize serious and violent offenses, limiting the use of pretrial detention, and requiring training to reduce racial bias for all those involved in running our justice system.

I cannot say I personally always was good about dealing with it, but the most effective court leaders are very good at dealing with dissent. Leadership in courts is in many respects no different than many organizations. Effective leaders understand that getting people to buy into a shared vision is essential, but there are going to be times when people do not see the world the way you do. Ineffective leaders of courts too often take task conflict (which can at times be healthy) and turn it into personal conflict (which is rarely healthy).

And so I thought I would share my thoughts about dissent in this article published in Trends. Trends is a publication of the National Center for State Courts.

If you have the time and the inclination, I am interested in what you think.

– Judge Kevin S. Burke

The University of Hawaii law school, the Hawaii State Judiciary, and environmental organizations are gearing up for the launch of Hawaii’s environmental court on July 1 — the second of its kind in the nation.

Under the new system, the Hawaii Supreme Court chief justice designates one or more environmental judges for each circuit and for a district court within each circuit.

“Hawaii’s environmental court is a historic milestone for our island and the U.S.,” said Denise Antolini, UH William S. Richardson School of Law associate dean of academic affairs. “As the second U.S. state to have such a court, we join a growing global moment where hundreds of “green courts” have been established to provide consistent and expert guidance from the judges involved.”

View Full Story from Pacific Business News here.

The Sentencing Law & Policy blog recently reported that,

The Seventh Circuit . . . issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner’s lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create.  I would urge all federal sentencing fans to read Judge Posner’s work in Presley in full, and these passages help highlight why (even with lots of Judge Posner’s great cites and data left out):

The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced… [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69.  And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee….

The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations.  What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released.  Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would….

The sentencing judge in this case … gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age.  Sentencing judges need to consider the phenomenon of aging out of risky occupations.  Violent crime, which can include trafficking in heroin, is generally a young man’s game.  Elderly people tend to be cautious, often indeed timid, and averse to physical danger.  Violent crime is far less common among persons over 40, let alone over 60, than among younger persons….

There needs finally to be considered the cost of imprisonment to the government, which is not trivial.  The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs.  If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste….

We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose.  There is no indication that these considerations received any attention in this case.  We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers.  Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate….

There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings.  But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released).  A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.

 

As reported in this AP piece, this week brought a big (but not entirely unexpected) federal court ruling concerning constitutional challenges to Minnesota’s civil commitment program for sex offenders.

Judge Frank is a former Minnesota District Court Judge. His thoughtful opinion can be found at:  Court’s Ruling on Minnesota Sex Offender Program.

Here are the basics:

A federal judge has ruled that Minnesota’s sex offender treatment program is unconstitutional, but has deferred any immediate action to await further proceedings on a remedy.  U.S. District Judge Donovan Frank largely sided with the more than 700 residents who were civilly committed to the Minnesota Sex Offender Program after they completed their prison sentences.

Their lawyers argued during a nearly six-week bench trial in February and March that the program is unconstitutional because nobody has ever been fully discharged from it, even those thought to be at low risk of committing new crimes. The state says it has improved the program, including moving more patients through treatment and perhaps toward provisional release.

Frank is calling on Minnesota government’s top leaders to personally appear in court to help come up with an alternative structure to a sex offender confinement program. Frank listed Gov. Mark Dayton, House Speaker Kurt Daudt and Senate Majority Leader Tom Bakk among those he wants to take part in a remedies phase that will start on Aug. 10. Frank says stakeholders must fashion a suitable remedy to avoid having the entire program be eliminated and resulting in the release of civilly committed offenders currently in secure facilities.

In Wednesday’s ruling, the judge lays out more than a dozen conditions for a restructured program, including that less-restrictive alternatives be implemented and new evaluation and discharge procedures be developed. Throughout his 76-page ruling, Frank says elected officials have been reluctant to modify the indefinite confinement of more than 700 sex offenders out of political fear. But Frank says “politics or political pressures cannot trump the fundamental rights” of those in the program. He stressed that the U.S. Constitution “protects individual rights even when they are unpopular.”

Gov. Mark Dayton says there won’t be immediate changes to the Minnesota Sex Offender Program in response to a federal judge’s ruling that it’s unconstitutional. In a statement that was released Dayton said, “We will work with the Attorney General to defend Minnesota’s law.”

Dan Gustafson, the attorney who brought the class action suit on behalf of the Minnesota Sex Offender Program clients said he is not surprised by the judge’s ruling. He said that he advised his clients to be patient because the remedies will take time to create and not all of the clients will be getting out.