Mark Osler is a well respected law professor at the University of St. Thomas School of Law. The issue of federal sentencing policy is, of course, quite important…but, the reality is the numbers are in the sentences imposed by state court judges. Even if you are not now (nor ever are going to be) a federal judge, this article is worth reading and thinking about.

A ‘Holocaust in Slow Motion?’ America’s Mass Incarceration and the Role of Discretion

Mark William Osler

University of St. Thomas – School of Law (Minnesota)

Mark W. Bennett

U.S. District Court (Northern District of Iowa)

2014

7 DePaul Journal for Social Justice 117 (2014)
U of St. Thomas (Minnesota) Legal Studies Research Paper No. 14-30

Abstract:

Numbers don’t lie: America has suffered an explosion in imprisonment that has been fundamentally unrelated to actual crime levels. In this article, a federal District Court Judge and a former federal prosecutor examine the roots of this explosion with a focus on the discretion of Congress, the United States Sentencing Commission, federal prosecutors, and judges. This dark period may be in its twilight, though, and the authors conclude by describing specific actions each of these four groups could take to dismantle the cruel machinery of mass incarceration.

The Brennan Center Fair Courts e alert reports that The United States Supreme Court granted cert in the case Williams-Yulee v. Florida Bar.

The case deals with a Florida judicial canon that prevents candidates in judicial elections from personally soliciting campaign contributions. Lanell Williams-Yulee, a former Florida judicial candidate, challenged the rule after she was disciplined for signing a mass-mail fundraising letter while running for office.

According to Greg Stohr of Bloomberg News, “Williams-Yulee says the law goes too far by barring candidates from asking for money in speeches and mass mailings. Those solicitations ‘present little or no risk of undue pressure or the appearance of a quid pro quo,’ her lawyers argued in the appeal.” But Bert Brandenburg, executive director of Justice at Stake, said “[a]s partisan and special interest spending in judicial elections skyrockets, the Supreme Court has an important opportunity to help rebuild public trust in elected courts — and strike a blow at a growing perception of judges as politicians in robes.”

Of the 39 states that hold judicial elections, 30 have rules in place preventing judicial candidates from personally soliciting contributions.

The federal judiciary is revamping its judicial conduct and disability rules, and the proposed reforms tackle a tricky subject:  How to treat allegations that a judge is no longer capable of performing her duties.

The proposed rules, which are now on the table for public comment, give a special committee of judges investigating a complaint the power to “consult appropriate experts or other professionals if it determines that such a consultation is warranted.”

For example, the proposal says, if the committee believes a judge may be unable to do her job because of mental or physical disability, it may ask the judge to undergo a medical or psychological examination and require the judge to share the results. The committee (which is appointed by a chief judge) may also ask for prior medical records.

If a judge refuses, the proposed rules say the committee can take the judge’s cooperation into account in its investigation. The proposed rules also suggest that a failure to cooperate could amount to misconduct itself, given that the Code of Conduct for U.S. Judges emphasizes the need to maintain public confidence in the judiciary.

In other words, the proposal leaves little room for a judge to refuse to undergo medical testing or to withhold medical records from a committee investigating her.

Federal judges are appointed for life. Slate and ProPublica reported in 2011 that about 12% of the sitting federal district and appellate judges were 80 years or older. At the time, 11 federal judges older than 90 were hearing cases. Together, the number of judges in those age groups had doubled in the 20 years prior.

A hearing on the proposed rules is scheduled for Oct. 30 in Washington, D.C.

From The Wall Street Journal Law Blog:

Comments made by Justice Ruth Bader Ginsburg in a magazine interview have reignited a long-simmering ethical debate confronting the Supreme Court over when a justice ought to sit out a case.

In a New Republic interview published Sunday, Justice Ruth Bader Ginsburg was asked by legal scholar Jeffrey Rosen if state lawmakers could be trusted to safeguard abortion rights.

“How could you trust legislatures in view of the restrictions states are imposing?” Justice Ginsburg replied. “Think of the Texas legislation that would put most clinics out of business. The courts can’t be trusted either.”

It’s not surprising that the liberal Justice Ginsburg would have a dim view of the Texas law (House Bill 2), which requires abortion physicians to obtain admitting privileges at a local hospital, a standard that could shutter many clinics in the state. But what raised eyebrows is that Justice Ginsburg openly talked about her views on an issue under review by an appellate court and potentially headed her way.

South Texas College of Law professor Josh Blackman thought the justice crossed a line. “It seems that Justice Ginsburg has made up her mind about this law [and believes that] it is not a health measure, but a law to put clinics out of business,” he wrote on his blog.

With Chief Justice John Roberts about to begin his tenth Term at the Court, Linda Greenhouse devotes her column for The New York Times to considering “the future: the next nine years. What kind of Supreme Court will John Roberts find himself presiding over, and how will he respond to what is highly likely to be a change, in one direction or the other, from the knife edge on which his current majority rests?”

The column begins:

Chief Justice John G. Roberts Jr. begins his 10th Supreme Court term next Monday. That’s a fact all but guaranteed to startle those of us who remember as if it were yesterday the weird and intense Supreme Court summer of 2005, bracketed by Justice Sandra Day O’Connor’s unexpected retirement announcement and, two months later, Chief Justice William H. Rehnquist’s death at 80 from thyroid cancer. Those events propelled John Roberts, originally President George W. Bush’s choice for the O’Connor vacancy, to the center chair to which the president quickly switched the nomination. At 50, he was the youngest chief justice since John Marshall. Of today’s justices, only Elena Kagan, at 54, is his junior.

It has been an eventful nine terms for the court and its chief. Samuel A. Alito Jr., Justice O’Connor’s eventual replacement, is well to her right and has provided Chief Justice Roberts with a reliable if narrow majority for the court’s steady regression on race and its deregulatory hijacking of the First Amendment. Along with ever-expanding accommodation of religious interests, these are the areas in which the Roberts court has made its increasingly predictable mark.

Anniversaries are a typical time for this kind of stock-taking, but what’s most interesting about this anniversary is not the past, but the future:  the next nine years.

There have been rumors about the financial struggle the American Judicature Society has faced during the past few years. One of the Society’s great benefactors passed away. And, the news this week is sad. The American Judicature Society, which is over 100 years old, has announced its dissolution.

AJS was initially the nation’s voice in the effort to reform the appointment and retention of judges. It was the go-to place for informed analysis of judicial ethics, led for many years by Cindy Gray. AJS played a very major role in moving forward a broad view of access to justice.

AJS published the first national materials on self-represented litigants, organized the critical 1999 Scottsdale Arizona Conference on the self-represented, and put together a number of regional conferences.  Kate Sampson, their now retired self-represented litigant leader, was a champion of this issue long before almost anyone else.  The AJS magazine, Judicature, has – a along with Court Review – been among the elite court publications.

Fortunately, the Center on Judicial Ethics, run by Cindy Gray, will now be part of the National Center for State Courts.

Thanks to improved technology, there is a lot more video evidence in criminal courts today than a decade ago. Many police departments have video cameras in squad cars and/or worn by officers. But, are there cautions we should take when viewing video?

Studies have already shown that video evidence is not always enough to cut through jurors’ biases — toward either police or people of certain races and groups — when judging a case. Now, a new series of studies from New York University and Yale researchers suggests that ambiguous video evidence may actually reinforce people’s biases if looked at in a certain way.

New York University reports:

Where people look when watching video evidence varies wildly and has profound consequences for bias in legal punishment decisions, a team of researchers at New York University and Yale Law School has found. This study raises questions about why people fail to be objective when confronted with video evidence.

In a series of three experiments, participants who viewed videotaped altercations formed biased punishment decisions about a defendant the more they looked at him. Participants punished a defendant more severely if they did not identify with his social group and punished him less severely if they felt connected to the group—but only when they looked at the defendant often.

“Our findings show that video evidence isn’t evaluated objectively—in fact, it may even spur our existing biases,” explains Emily Balcetis, an assistant professor in NYU’s Department of Psychology and one of the study’s authors. “With the proliferation of surveillance footage and other video evidence, coupled with the legal system’s blind faith in information we can see with their own eyes, we need to proceed with caution. Video evidence is seductive, but it won’t necessarily help our understanding of cases, especially when it’s unclear who is at fault.”

The research appears in the Journal of Experimental Psychology: General, which is published by the American Psychological Association.

The full story is here.

The vast majority of prosecutors in the United States and Canada are decent, honorable lawyers. But, occasionally there are notable instances where the lawyers for the prosecution don’t live up to our ideals. In recent years there was a failure to disclose exculpatory evidence in the case of former Alaska Senator Ted Stevens, several death penalty convictions reversed for similar conduct, and a plethora of claims that arguments in closing argument were improper. A lot of these claims are rejected on harmless error grounds.  But, should they be?

Mary Bowman (Seattle University School of Law) has posted Mitigating Foul Blows (Georgia Law Review, 2015, Forthcoming) on SSRN.

Here is the abstract:

For nearly eighty years, courts have offered stirring rhetoric about how prosecutors must not strike foul blows in pursuit of convictions. Yet while appellate courts are often quick to condemn prosecutorial trial misconduct, they rarely provide any meaningful remedy. Instead, courts routinely affirm convictions, relying on defense counsel’s failure to object or concluding that the misconduct was merely harmless error. Jerome Frank summed up the consequences of this dichotomy best when he noted that the courts’ attitude of helpless piety in prosecutorial misconduct cases breeds a deplorably cynical attitude toward the judiciary.

Cognitive bias research illuminates the reasons for, and solutions to, the gap between rhetoric and reality in prosecutorial misconduct cases.

This article is the first to explore theories of cognition that help explain the frequency of prosecutorial misconduct and the ways that it likely affects jurors and reviewing judges more than they realize. As a result, the article advocates for sweeping changes to the doctrine of harmless error and modest changes to the doctrine of plain error as applied in prosecutorial misconduct cases. These solutions will help courts abandon their attitude of helpless piety, clarify the currently ambiguous law on what behavior constitutes prosecutorial misconduct, encourage defense counsel to raise timely objections to misconduct, and reverse convictions when misconduct may well have affected the outcome of the case but affirm when the misconduct was trivial.

In a recently released advisory opinion, the California Supreme Court Committee on Judicial Ethics Opinions wrote that gifts cannot be accepted by judges if they are offered by a party who has or is likely to appear before the judge at any point in his or her career, or if they create a perception of influence, favor, or reasonable belief that the giver was anticipating an advantage.

“When determining if gifts are otherwise acceptable as ordinary social hospitality, judges should consider whether they are ordinary by community standards, consistent with social traditions, and hospitable in nature,” the Opinion reads.

Instances when judges might be offered gifts include jurors bringing homemade food to the judge, local sports team or the judge’s alma mater gifting branded merchandise, or a law firm delivering pizza to courtroom staff following a long trial.

“As varied as the examples are, the items are similarly low in extrinsic dollar value but high in intrinsic social value,” the Opinion reads.

According to the Opinion, gifts may be accepted, however, if they do not violate the guidelines intended to keep judges impartial, are of little or nominal value, considered ordinary by community standards, and offered for social traditions or purposes.

The Associated Press has a story about Confirmation Bias in how people view the tragedy of Ferguson.

The story provides, in part:

With so much incomplete and sometimes conflicting information, some confirmation bias is bound to occur.

“If one were to view a police officer pointing a gun at someone, and they also view police negatively, they may very well ignore whatever events precipitated the officer drawing his/her weapon, even though that action may have been entirely justifiable,” Lou Manza, chair of the psychology department at Lebanon Valley College in Pennsylvania, said in an email.

“On the other side,” he said, “if one has a favorable view of police, they’re going to ignore the alleged assailant’s behavior, and simply assume that the police officer is correct, despite the fact that the officer may very well be wrong and unjustified in their actions.”

“Confirmation bias is a subtle but strong effect,” Manza said, “and once a belief is established, it can be VERY difficult to change it.”

This helps to explain why Brown’s killing, currently being considered by a Missouri grand jury, has revived a dynamic seen in racial controversy after controversy, from O.J. Simpson to Rodney King to Trayvon Martin: People look at the same information and come to very different conclusions.

In this particular case, with little unambiguous evidence, “people are actually acting very reasonably,” said Plous, the Wesleyan professor.

“There is a void, and into that void, people will bring whatever they regard as the most reasonable evidence,” he said. “People are trying to make sense of this tragedy using the most compelling evidence they have available.”

So, the question is not what judges may privately think about the Ferguson shooting, but can we learn about the subtle yet strong effect confirmation bias can play in our everyday decision-making?