Certainly among political activists and, to a lesser extent, legal academics, the decision in Citizens United has created a lot of angst. The decision in essence held that corporations are people with First Amendment rights. So, if corporations have First Amendment rights, perhaps there needs to be a reexamination of obligations that come with citizenship.

Perhaps nothing is a more essential obligation of citizenship than jury duty.  HB 3385, a bill introduced in Oregon, would require that judges and courts accept corporations as jurors. The state’s existing jury statute (ORS 10.030) would be supplemented with a new paragraph (4).

Any corporation organized under the laws of this state is eligible to act as a juror in a civil or criminal trial or as a grand juror. The corporation must act as a juror or grand juror through an individual agent of the corporation who would be eligible to act as a juror or grand juror under subsection (2) or (3) of this section.

Before you dismissively conclude this is silly, think of the opportunities it will open up.  This initiative may open a whole new cottage industry of “corporate jury consultants.” Sir, can you tell me, does Target believe in the presumption of innocence?

In this blog, Judge Peggy Hora (Retired) explores the guiding principles of Driving While Impaired courts and how these principles can also be used to improve the effectiveness of responses in mainstream court settings…

Driving while impaired (DWI) by alcohol or other drugs is an international problem. Far too many people lose their lives, are injured or injure others while engaging in this totally preventable crime.  Some countries have a stronger ethic about not drinking and driving than others but it is a widespread issue in all parts of the world.

There is a range of permissible blood alcohol content (BAC) levels ranging from zero tolerance for driving up to .08 g/mL throughout the United States.  Some countries have .03 and many have .05 as the “legal limit.”  Science has taught us that everyone is impaired at .08 regardless of tolerance and most people are impaired at .05.  The safest public policy position is to completely separate the ingestion of alcohol with any driving.

When it comes to impairing substances like illicit drugs, cannabis and over-the-counter and prescription medications, much less is known.  We do know that these substances can affect driving but we just don’t know how much is too much.[i]  In the U.S. some states have adopted a zero tolerance position on levels of THC while others have 2 ng/ml, 3 ng/ml or 5 ng/ml as the limit.  The length of time that cannabis can be detected in the body coupled with a movement towards legalization further complicates these issues. We do know that more people in the U.S. now drive with a drug in their system than with alcohol.

The key to prevention of recidivism is to identify those who are unlikely to reoffend after their first arrest/conviction for DWI (80%) from those high risk/high need offenders who, without appropriate intervention and supervision, are likely to reoffend.[ii]

Starting in 1995, the drug treatment court model has successfully been applied to repeat DWI offenders.  As of June 2014 in the U.S., there are 242 DWI Courts and 448 hybrid DWI Courts connected to an existing drug court but called on a separate docket.[iii]  The states of Tasmania and Victoria in Australia are looking at DWI courts and the two-year-old Alcohol and Other Drug Treatment Courts in New Zealand have accepted high risk/high need DWI offenders from the beginning.

While drug treatment courts have the 10 Key Components as their foundational document, DWI courts have the Guiding Principles of DWI Courts that were developed ten years later. The two documents are similar although the Principles address transportation needs and co-occurring disorders, issues not found in the Key Components.  Both have as a basic tenet the importance of the judicial role in these types of courts. GUIDING PRINCIPLE #6, entitled “Take a Judicial Leadership Role,” states:

Judges are a vital part of the DWI Court team. As leader of this team, the judge’s role is paramount to the success of the DWI Court program. The judge must be committed to the sobriety of program participants, possess exceptional knowledge and skill in behavioral science, own recognizable leadership skills as well as the capability to motivate team members and elicit buy-in from various stakeholders. The selection of the judge to lead the DWI Court team, therefore, is of utmost importance.

The role of the DWI Court judge anticipates not only “exceptional knowledge” but also “skill in behavioral science” and motivation of the participants as well as the team.  These attributes should not be and are not limited to judges in solution-focused courts alone. There is no reason judges cannot develop these skills and apply TJ principles in regular calendars/lists.

Besides the talents of the judge, other factors that contribute to a lower recidivism rate in DWI cases are close monitoring of abstinence; record-keeping to ensure completion of an educational program or substance abuse treatment; license sanctions and reinstatements; and, a belief by the probationer that any behavior, good or bad, is likely to be discovered. Frequent status hearings in court are a hallmark of drug treatment and DWI courts but there is nothing to stop a judge on a regular calendar from setting status hearings as well. Safeguards should be in place to detect any driving that is not sanctioned or positive chemical tests to which the court can craft a speedy response.

Judges who leave the specialty court assignment and return to a regular docket report that they just can’t do business the way they used to. Once they know what works, they cannot go back to the traditional but ineffective criminal justice responses. As members of Alcoholics Anonymous are fond of pointing out, “Once you’re a pickle you can never be a cucumber again.” And so it seems that is true for judges as well. Once you practice TJ you can’t go home again.

 

[i] There is one study from the UK that suggests 5 ng/mlof cannabis is equal to .08g/mL alcohol in terms of impairment for purposes of driving.

[ii] By contrast, in South Australia more than a third (34%) of drivers arrested for DWI has prior convictions.

[iii] This total of 690 DWI Courts compares to almost 2,800 drug courts in the U.S.

Judge Peggy Hora, retired Judge of the California Superior Court and now Senior Judicial Fellow for the National Drug Court Institute and the Global Centre for Drug Treatment Courts, is a global leader in the solution-focused courts movement and has written comprehensively on justice issues.

Daniel A. Horwitz has posted The First 48: Ending the Use of Categorically Unconstitutional Investigative Holds in Violation of County of Riverside v. McLaughlin (45 U. MEM L. REV. __ (Spring 2015 Forthcoming)) on SSRN.

Here is the abstract:

This Article critiques the holding adopted by a growing number of courts that law enforcement may delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause for up to forty-eight hours following an arrest as long as a judge or magistrate ultimately determines that the arrest itself was supported by probable cause. Although this issue has largely escaped review within academic literature, the practice of employing investigative detentions against warrantless arrestees is widespread among law enforcement. Of note, whether such investigative detentions comport with the Fourth Amendment has also generated a circuit split between the Eighth Circuit Court of Appeals and one of two irreconcilable lines of authority within the Seventh Circuit Court of Appeals. The issue has similarly divided the appellate courts of at least nine states.

This Article rejects the notion that law enforcement may ever deliberately delay a warrantless arrestee’s constitutional right to receive a judicial determination of probable cause (known as a “Gerstein hearing”) in order to facilitate further investigation by law enforcement. Specifically, it argues that the conclusion reached by several courts that police may intentionally delay a warrantless arrestee’s Gerstein hearing for the purpose of further investigation as long as probable cause existed to justify the defendant’s arrest in the first place is inconsistent with the Fourth Amendment for five separate reasons. First, it confounds the essential distinction between a judicial determination of probable cause, which is a constitutional right, and a determination of probable cause that is made by law enforcement, which carries no constitutional significance. Second, it violates the “administrative purpose” requirement — initially established by the Supreme Court in Gerstein v. Pugh, and subsequently reaffirmed by the Supreme Court in County of Riverside v. McLaughlin — which permits law enforcement to delay a warrantless arrestee’s Gerstein hearing for administratively necessary reasons only. Third, this conclusion fails to grasp the crucial distinction between, on the one hand, delaying a warrantless arrestee’s Gerstein hearing for investigative reasons, and on the other, continuing an investigation while the administrative steps leading up to a warrantless arrestee’s Gerstein hearing are simultaneously being completed. Fourth, it renders McLaughlin’s express prohibition on “delays for the purpose of gathering additional evidence to justify [an] arrest” superfluous, because all arrests unsupported by probable cause are already prohibited by the Fourth Amendment. Fifth, it substantially diminishes the value of the check on law enforcement established by Gerstein by introducing hindsight bias into probable cause determinations and by allowing a substantial number of warrantless arrests to escape judicial review of any kind.

Both in the United States and Canada there are legitimate concerns about bringing greater diversity to the bench. There have been areas of spectacular success and there have been areas where it seems like no progress — or even regression — has occurred. Now there is a novel approach to the issue from a law professor in Canada.

David M. Tanovich is a law professor at the Faculty of Law, University of Windsor, where he teaches in the areas of criminal law and legal ethics. He wrote in The Globe & Mail:

The latest round of federal judicial appointments in Ontario has further entrenched inequality in our courts and has led me to think about the following provocative question: Should white male lawyers have an ethical duty to say no the next time the federal justice minister comes calling, in order to force systemic change? In my view, the answer is yes.

It is not an understatement to say that we are in the midst of a crisis of representativeness in our federal judiciary.

For example, since 2012, 46 practising lawyers (including three professors) have been appointed to the Ontario Superior Court of Justice or Court of Appeal by Conservative justice ministers. Just over three quarters (78 per cent) of the appointments have been men (36/46). Only one of the appointments appears to be from a racial minority, although an exact number cannot be discerned because of the government’s refusal to collect this necessary information. Things aren’t much better in the other provinces or in the elevation of judges from the provincial to federal courts.

For the full article, go here.

Murat C. Mungan and Jonathan Klick (Florida State University – College of Law and University of Pennsylvania Law School) have posted Identifying Criminals’ Risk Preferences on SSRN.

Here is the abstract:

There is a 250 year old presumption in the criminology and law enforcement literature that people are deterred more by increases in the certainty rather than increases in the severity of legal sanctions. We call this presumption the Certainty Aversion Presumption (CAP). Simple criminal decision making models suggest that criminals must be risk-seeking if they behave consistently with CAP. This implication leads to disturbing interpretations, such as criminals being categorically different than law abiding people, who often display risk-averse behavior while making financial decisions. Moreover, policy discussions that incorrectly rely on criminals’ risk attitudes implied by CAP are ill-informed, and may therefore have unintended negative consequences.

In this article, we first demonstrate, contrary to most of the existing literature, that CAP consistent behavior does not imply risk-seeking behavior.

A host of considerations that are unrelated to risk-attitudes can generate behavior that is consistent with CAP, including stigmatization; discounting; judgment proofness; the forfeitability of illegal gains; and the possibility of being punished for unsuccessful criminal attempts. Next, we discuss empirical methods that can be employed to gain a better understanding of criminals’ risk-attitudes and responsiveness to various punishment schemes. These methods focus on the various non-risk-related-considerations that may be responsible for CAP consistent behavior. Finally, we discuss the importance of gaining a better understanding of criminals’ attitudes for purposes of designing optimal law enforcement methods, punishment schemes for repeat offenders, plea bargaining procedures and standards of proof.

The National Law Journal reports:

A federal appeals revived the craft beer maker’s claims that Michigan liquor officials violated the First Amendment by blocking the sale of the company’s “Raging Bitch” brew in the state.

The U.S. Court of Appeals for the Sixth Circuit sent the Maryland brewery’s case back for a trial judge to rule on the constitutional issue, ruling that the liquor officials were not entitled to immunity. In a 2-1 decision, the majority stopped short of deciding the First Amendment question.

Judge Karen Moore wrote that she would have ruled outright in favor of the brewery.

“The First Amendment protects the right to engage in commercial speech free from government suppression that does not directly advance a state interest and is not tailored to be no more extensive than necessary,” Moore wrote. “The commissioners have no evidence—anecdotal, empirical, or otherwise—that the sight of the ‘Raging Bitch’ label would harm the citizens of Michigan.”

William Tucker Carrington (University of Mississippi – School of Law) has posted Mississippi Innocence: The Convictions and Exonerations of Levon Brooks and Kennedy Brewer and the Failure of the American Promise (Georgetown Journal of Legal Ethics, Vol. 28, No. 123, 2015) on SSRN.

Here is the abstract:

After spending a combined thirty-two years behind bars for crimes they did not commit, Levon Brooks, sentenced to life, and Kennedy Brewer, sentenced to death, were exonerated in February, 2008, in Noxubee County, Mississippi. Close attention to innocence cases like these offer a valuable forensic opportunity to observe from ground level just how the criminal justice system works, or doesn’t. Because they occurred in rural Mississippi, the Brooks and Brewer cases present a unique opportunity to consider what contemporary scholarship refers to as our criminal justice system’s new form of Jim Crow: a system of facially colorblind criminal laws that as applied and prosecuted currently imprison masses of poor blacks and relegates still others to lives of permanent second-class citizenship. By establishing the rich historical context in which these two cases occurred, and then engaging in a first-hand account of the crimes, investigations and trials, this article argues, that among other scholarship and commentary, “The New Jim Crow” school of thought neglects what is perhaps the most pernicious failure of true justice: the co-opting of formerly progressive law and policy in order to camouflage what is really nothing more than institutionally sanctioned lynching. While seminal cases like Gideon v. Wainwright and Batson v. Kentucky, for example, which guaranteed the right to counsel and minority representation on criminal petit juries respectively, are honored in letter, the ultimate effect is hortatory and cynical. They are now used to mask a much more sinister result: the affirmative manipulation of what were once true gains in due process and equal protection into measurable false promise and palpable human tragedy. Over time, the efforts to rid the criminal justice system of bias and bigotry – of “Jim Crow” – have been used instead to mask the fact that they are now built into its very structure and doctrine.

In the United States, there are a lot of judges who get “creative” in trying to deny pretrial jail credit.  Thanks to Judge Wayne Gorman, there is an interesting pretrial jail credit case from Canada:

In R. v. Slack, 2015 ONCA 94, February 11, 2015, the accused was convicted of a series of weapon related offences and sentenced to a period of eight years imprisonment.  In imposing sentence, the trial judge declined to grant the accused an enhanced credit for pre-sentence custody.

THE TRIAL JUDGE’S DECISION

The trial judge reached her conclusion “based on the appellant’s institutional conduct.”  The trial judge stated:

The difficulty here is that Mr. Slack has three misconducts in his record during his time in custody: March 20th, 2012, March 12th, 2012 and October 31st, 2012.  Although the circumstances which could give rise to enhanced credit include ineligibility for remission and parole while in custody, the conduct during his custodial time, in my view has caused me not to grant the enhanced credit.  I do not consider enhanced credit necessary to [achieve] a fair sanction.

The accused appealed from the sentence imposed, arguing in part that an enhanced credit should have been provided for the time he spent in pre-sentence custody.

THE ONTARIO COURT OF APPEAL

The Ontario Court of Appeal agreed.  It suggested that the Supreme Court of Canada’s decision in R. v. Summers, [2014] 1 S.C.R. 575, “lays to rest any suggestion that the loss of eligibility for early release cannot, standing alone, warrant enhanced credit for pre-sentence custody.”  The Court of Appeal indicated that “the fact of pre-sentence custody is generally sufficient to give rise to an inference that the offender has lost eligibility for parole or early release, thereby justifying enhanced credit.  It then falls to the Crown to challenge this inference, for example, by demonstrating that the offender’s bad conduct while in jail renders it unlikely that he or she will be granted parole or early release.”

The Court of Appeal held that the trial judge erred in denying “enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct” (at paragraphs 13 and 14):

The appellant’s conduct during pre-sentence detention included three documented incidents of misconduct.  On one occasion, the appellant was charged with possession of contraband when the smell of marijuana was detected coming from his cell, which he occupied with another inmate.  No marijuana was found on the appellant’s person, and he was not seen using the drug.  The remaining two incidents involved a second charge of possession of contraband, and making a gross insult at another person.  There was no other evidence before the sentencing judge concerning the nature of or the circumstances surrounding these two incidents.

The sentencing judge denied enhanced credit for the appellant’s pre-sentence custody based solely on the evidence of the appellant’s institutional misconduct.  And it is here, with respect, that I conclude the sentencing judge fell into error.  In my view, given the nature of the thin record of institutional misconduct by the appellant, it cannot be said that the Crown demonstrated that the appellant’s institutional misconduct would disentitle him to parole or statutory release.

The Court of Appeal concluded that the “evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked” (at paragraphs 19 and 20):

In this case, the evidence of the appellant’s institutional misconduct did not reasonably support the inference that he would likely be denied parole or statutory release based on bad conduct.  The limited record before the sentencing judge concerning the appellant’s conduct in jail established only a minor instance of misconduct – the possession of marijuana based on the smell of that drug emanating from a cell occupied by the appellant with another offender.  Nothing in that incident or in the two other generally unparticularized incidents of misconduct established reasonable grounds to believe that the appellant, during the period of his statutory release, would commit an offence of the type envisaged under ss. 129 and 130 of the CCRA.  Nor was the loss of statutory release an available punishment for the appellant’s reported incidents of misconduct.

In short, the evidence of the appellant’s minor misconduct while in pre-sentence custody did not support the inference that his right to statutory release would or could be revoked.  As a result, the refusal of enhanced credit for the appellant’s pre-sentence custody on the ground of his institutional misconduct was unjustifiable and the sentencing judge’s denial of enhanced credit solely on this basis cannot stand.

Richard Zorza is one of the legal system’s most profound thinkers about how we can provide better service to self-represented people.  He may well have had more impact than anyone else in this field. He recently wrote that he had “discovered that Volvo Cars has set a zero death goal for its new cars by 2020″:

“Our vision is that no one is killed or injured in a new Volvo by 2020,” the chief of governmental affairs is reported to have sad.  Whether or not they actually achieve the specifics of that goal is less important than the fact that by setting such a goal, and doing so publicly, they change their whole system from thinking day to day, or year to year, to where they really want to be. Interestingly, it turns out that a bit less than 20 years ago Sweden set as a goal that “Nobody should be killed or seriously injured within the road transport system” so this is also an example of corporate culture following governmental policy.

So the obvious question is this:  What similar realistic, but challenging goals could we set for access to justice — goals that would require long term strategic thinking, and that recognize that system problems require systemic solutions.  Different organizations should set such component goals for themselves.

Indeed, Katherine Alteneder of SRLN has already promised here, that:  “The Self-Represented Litigation Network, leading advocates for an accessible and integrated justice system, has made a commitment to help facilitate the development of self-help centers in every state by 2020, and to ignite local and regional dialogues on how to connect self-represented litigants with attorneys providing limited scope services.”

More generally, how about these as such goals:

– No unintentional defaults in our court — no one abandons a case without making an informed decision

– Every case and situation with significant non-lawyer caseload has a plain English and easy to use free online form system

– All judges have been fully trained in handling self-represented cases, including having the opportunity to see themselves on video

– All states have an Access to Justice Commission or Equivalent

– Every jurisdiction has an accessible and functioning referral system for unbundling cases

– Every court has self-help services

– Every state has a funding system for when judges find a right to counsel not covered by existing funding mechanisms

– Every Rules Committee has an expert on self-represented cases.

In the short term, the Justice Index can help us establish, and monitor movement towards, such goals.  But establishment of such goals is clearly in part a national leadership and state partnership function.

I have deliberately avoided listed what should be really the overall goal — no cases wrongly decided because of lack of access help — because that seems too huge — but then Volvo’s goal seems pretty massive from here.

Like I said, Richard Zorza is a profound thinker.

Canadian adults in grievous, unending pain have a right to end their life with a doctor’s help, the Supreme Court of Canada has ruled.

The Court explained why it was creating a new constitutional right to autonomy over one’s death in some circumstances:  Those who are severely and irremediably suffering, whether physically or psychologically, “may be condemned to a life of severe and intolerable suffering” by the government’s absolute ban on assisted dying. “A person facing this prospect has two options: she can take her own life prematurely, often by violent or dangerous means, or she can suffer until she dies from natural causes. The choice is cruel.”

The unanimous ruling extends constitutional rights into a new realm. The decision was summarized by Judge Wayne Gorman:

In Carter v. Canada (Attorney General), 2015 SCC 5, February 6, 2015, T was diagnosed with a fatal neurodegenerative disease. She challenged the constitutionality of the Criminal Code  provisions prohibiting assistance in dying (section 241(b) of the Criminal Code prohibits anyone from aiding or abetting a person in committing suicide and section 14 of the Criminal Code indicates that no person “is entitled to consent to have death inflicted on him”).

The trial judge found that the prohibition against physician assisted dying violated section 7 of the Charter and was not justified under section 1 of the Charter.  The Crown appealed.

A majority of the British Columbia Court of Appeal allowed the appeal on the ground that the trial judge was bound to follow the Supreme Court of Canada’s decision in Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519, where a majority of the Court upheld the blanket prohibition on assisted suicide.

An appeal was taken to the Supreme Court of Canada.

The appeal was allowed.  The Supreme Court held that section 241(b) of the Criminal Code  unjustifiably infringes section 7 of the Charter  and was of no force or effect to the extent that it prohibits physician assisted death for a competent adult person who (1) clearly consents to the termination of life and (2) has a grievous and irremediable medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition.

The Supreme Court also held that the prohibition on assisted suicide is, in general, a valid exercise of the federal criminal law power under s. 91(27)  of the Constitution Act, 1867, and it does not impair the protected core of the provincial jurisdiction over health.

Though the constitutionality of sections 14 and 241(b) of the Criminal Code were the main issues in this appeal, from a trial judge’s perspective this decision also raises another interesting legal issue: the application of the doctrine of stare decisis.

 STARE DECISIS

The Supreme Court of Canada noted that the “doctrine that lower courts must follow the decisions of higher courts is fundamental to our legal system.  It provides certainty while permitting the orderly development of the law in incremental steps.  However, stare decisis is not a straitjacket that condemns the law to stasis.  Trial courts may reconsider settled rulings of higher courts in two situations:  (1) where a new legal issue is raised; and (2) where there is a change in the circumstances or evidence that “fundamentally shifts the parameters of the debate” (Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 42)”

The Supreme Court held that both conditions were met in this case (at paragraphs 46 to 48):

The argument before the trial judge involved a different legal conception of s. 7  than that prevailing when Rodriguez was decided.  In particular, the law relating to the principles of overbreadth and gross disproportionality had materially advanced since Rodriguez.  The majority of this Court in Rodriguez acknowledged the argument that the impugned laws were “over-inclusive” when discussing the principles of fundamental justice (see p. 590).  However, it did not apply the principle of overbreadth as it is currently understood, but instead asked whether the prohibition was “arbitrary or unfair in that it is unrelated to the state’s interest in protecting the vulnerable, and that it lacks a foundation in the legal tradition and societal beliefs which are said to be represented by the prohibition” (p. 595).  By contrast, the law on overbreadth, now explicitly recognized as a principle of fundamental justice, asks whether the law interferes with some conduct that has no connection to the law’s objectives (Bedford, at para. 101).  This different question may lead to a different answer.  The majority’s consideration of overbreadth under s. 1  suffers from the same defect: see Rodriguez, at p. 614.  Finally, the majority in Rodriguez did not consider whether the prohibition was grossly disproportionate.

The matrix of legislative and social facts in this case also differed from the evidence before the Court in Rodriguez.  The majority in Rodriguez relied on evidence of (1) the widespread acceptance of a moral or ethical distinction between passive and active euthanasia (pp. 605-7); (2) the lack of any “halfway measure” that could protect the vulnerable (pp. 613-14); and (3) the “substantial consensus” in Western countries that a blanket prohibition is necessary to protect against the slippery slope (pp. 601-6 and 613).  The record before the trial judge in this case contained evidence that, if accepted, was capable of undermining each of these conclusions (see Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at para. 136, per Rothstein J.).

While we do not agree with the trial judge that the comments in Hutterian Brethren on the s. 1  proportionality doctrine suffice to justify reconsideration of the s. 15  equality claim, we conclude it was open to the trial judge to reconsider the s. 15  claim as well, given the fundamental change in the facts.