From the Sentencing Law & Policy Blog:

Will Canada’s courts continue to strike down mandatory minimums as unconstitutional?

 

The question in the title of this post is prompted by this interesting recent commentary in a Canadian paper sent my way by a helpful reader.  The piece by Lisa Kerr is headlined, “Mandatory minimums for drug crimes have no future in Canada: As the B.C. Court of Appeal prepares to hear the first major challenge to mandatory minimums, there’s reason to think the policy will be rightly short-lived.”  Here are excerpts:

This week, the B.C. Court of Appeal hears the first major challenge to the latest symptom of a punitive plague: mandatory incarceration for a drug crime. The defendant, 25-year-old Joseph Lloyd, lives in the downtown eastside of Vancouver, where he struggles with addiction and regularly interacts with the court system. In the past, local judges could use their expertise to craft an individualized punishment for people like Lloyd. Community supervision, drug programming, or specific amounts of jail time could target his specific circumstances.

New legislation compels judges to impose a minimum one-year prison term on all individuals who meet a handful of criteria. Judges can no longer consider whether it is in the public interest to incarcerate someone like Lloyd, or for how long. They can no longer consider whether a person will lose housing or employment. While one year in a chaotic jail is unlikely to help a struggling individual to recover stability, that is a judge’s only option unless the law is struck down.

In the United States, the removal of discretion from sentencing judges is the central cause of its famously high rate of incarceration. There are nine million prisoners in the world. Over two million of them are in the U.S….

The arrival of mandatory sentences does not herald the “Americanization” of Canadian crime policy. The deep principles of our criminal justice system cannot be dismantled overnight. Our prosecutors are not a bloodthirsty lot — they are largely anonymous and professional public servants. Unlike many of their American counterparts, Canadian prosecutors are not subject to elections and public scrutiny. They are better positioned to pursue a broad notion of the public interest, rather than just long prison sentences.

Canadian judges are also likely to resist interference by politicians who are detached from the daily reality of human misery faced in criminal courts. And they have the tools to do so. While Canada and the U.S. have identical language in the constitutional prohibition against “cruel and unusual punishment,” the prohibition has been interpreted very differently in the courts.

In 2003, the U.S. Supreme Court upheld a life sentence for a third offence of stealing golf clubs. In 1987, the Canadian Supreme Court struck down the only previous attempt at automatic incarceration for drug crime: a seven-year term for drug trafficking. So far, mandatory sentences for non-violent drug offences are unconstitutional in this country.

Canadian institutions are likely to resist this untimely American policy transplant. There is no collapse of faith in our courts, there is no crime wave, and there is no Southern Strategy. Joseph Lloyd should encounter a court system that is free to encounter him.

The Criminal Justice Response to 16- and 17-Year-Old Defendants in New York, a new study from researchers at the Center for Court Innovation, documents how the justice system handles 16- and 17-year-old defendants across New York State. The report also examines the Adolescent Diversion Program, an initiative launched by New York State Chief Judge Jonathan Lippman to improve outcomes for this population.

New York is one of only two states that define 16- and 17-year-old defendants as criminally responsible adults. This policy exposes young people to long-term consequences, such as criminal conviction, incarceration, and reduced employment prospects. The study documents that four percent of misdemeanor cases, 16 percent of nonviolent felonies, and 19 percent of violent felonies ended in a criminal conviction and a permanent criminal record. The report also examines risk factors for re-arrest, finding that male adolescents and those with multiple prior arrests are especially likely to re-offend.

Barb Jones is one of the nation’s best legal journalists.  Ms. Jones writes for the Minnesota Lawyer and serves as the Managing Editor.  She recently had an interesting piece on the Eighth Circuit Court of Appeals decision interpreting Rule 702 of the Federal Rules of Evidence.

The article begins:

The guardian ad litem for a brain-damaged child may pursue a claim against Mead Johnson & Company, the makers of Enfamil Lipil with Iron, alleging that the child was infected by bacteria in the formula, the 8th U.S. Circuit Court of Appeals ruled on June 6. The opinion reverses a grant of summary judgment to the defendant by District Court Judge Joan Ericksen.

Ericksen granted summary judgment after excluding the testimony of all of the plaintiff’s experts. She determined that their methodology, ruling in the scientifically plausible causes and then ruling out the least plausible, was not reliable enough to assist the trier of fact.

The three-judge appellate panel said in this case it would resolve the “intriguing juxtaposition” between liberal standards for admission of expert testimony under Rule 702 and an abuse-of-discretion standard of review in favor of admission of the testimony.

“That’s always the problem,” said Minneapolis attorney Kay Nord Hunt, who represented the appellant. “The standards are liberalized under Rule 702, but the appeal is for abuse of discretion.” If the trial court judge doesn’t apply a liberal standard, the appellate court may yet affirm, she explained. That’s what is unusual about this case, she said, because the courts usually affirm. Furthermore, the clerk of court assessed the guardian ad litem $18,442 in costs, which Ericksen refused to vacate. The case is Johnson v. Mead Johnson & Company.

The full article may be found here (subscription required).

The title of this post is the title of this notable new article by Cortney Lollar now available via SSRN.

Here is the abstract:

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore no longer serves its traditional purpose of disgorging a defendant’s ill-gotten gains. Instead, restitution has become a mechanism of additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections normally attaching to criminal proceedings.

This Article deploys a novel definition of punishment to situate restitution alongside other forms of punishment. Like all forms of punishment, restitution is imposed subsequent to a criminal allegation, pursuant to a statute motivated by morally condemnatory intent, and resulting in a substantial deprivation or obligation. Because restitution has become a form of punishment, this Article argues that judges should recognize criminal restitution for what it is — victim compensation imposed at the state’s request as condemnation for a moral wrong — and extend to defendants in restitution proceedings all the constitutional protections they enjoyed in earlier criminal proceedings. This means submitting restitution to a jury for determination pursuant to the Sixth Amendment, and subjecting it to the excessive-fines analysis of the Eighth Amendment.

This morning the United States Supreme Court ruled in two cases that cell phone searches require a warrant.

The first case, Riley v. California, No. 13-132, arose from the arrest of David L. Riley, who was pulled over in San Diego in 2009 for having an expired auto registration. The police found loaded guns in his car and, on inspecting Mr. Riley’s cellphone, found entries they associated with a street gang.

A more comprehensive search of the phone led to information that linked Mr. Riley to a shooting. Riley was later convicted of attempted murder and sentenced to 15 years to life in prison. A California appeals court said neither search had required a warrant.

The second case, United States v. Wurie, No. 13-212, involved a search of the call log of the flip phone of Brima Wurie, who was arrested in 2007 in Boston and charged with gun and drug crimes. The federal appeals court in Boston last year threw out the evidence found on Mr. Wurie’s phone.

Chief Justice John G. Roberts, Jr. delivered the opinion of the Court in both Riley v. California, No.13-132, and United States v. Wurie, No. 13-212. Justice Alito issued an opinion concurring in part and concurring in the judgment.

You can access the oral arguments here and here, respectively.

National Public Radio’s report on the proliferation of criminal justice debt, conducted with the assistance of the Brennan Center and National Center for State Courts, continues to draw national attention.

Stephen Colbert highlighted the study, explaining, “If a defendant can’t pay a fee, they go to jail, where they’ll rack up more food and boarding fees that they can’t pay, and be penalized with more jail time — thus increasing their debt, which gives them even longer prison sentences.”

The Huffington Post and The American Prospect also referenced a 2010 Brennan Center report on criminal fees and fines:  “The combination of debt and poor job opportunities can lead recently released prisoners right back to prison — neither a cost-effective outcome for the state nor a desirable outcome for well, anyone.”

The headline in The New York Times was:  “Justices Uphold Emission Limits on Big Industry.”  The story, written by Adam Liptak, began:

In a big win for environmentalists, the Supreme Court on Monday effectively endorsed the Obama administration’s efforts to regulate greenhouse gas emissions from sources like power plants, even as it criticized what it called the adm inistration’s overreaching.

. . . .

“E.P.A. is getting almost everything it wanted in this case,” Justice Antonin Scalia said in summarizing the decision from the bench. “It sought to regulate sources it said were responsible for 86 percent of all the greenhouse gases emitted from stationary sources nationwide. Under our holdings, E.P.A. will be able to regulate sources responsible for 83 percent of those emissions.”

The headline in The Washington Post read:  “Supreme Court: EPA can regulate greenhouse gas emissions, with some limits.”

But, others read the opinion differently.

Richard Wolf of USA Today reports that “Supreme Court limits greenhouse gas regulations.”

Michael Doyle of McClatchy Washington Bureau has a blog post titled, “Supreme Court limits EPA power to regulate greenhouse gas pollution.”

The Washington Times has a news update headlined, “Supreme Court hits Obama’s global warming agenda.”

So if you want to make up your own mind, Justice Scalia delivered the opinion of the Court in part and announced the judgment of the Court in Utility Air Regulatory Group v. EPA, No. 12-1146.  Justice Stephen G. Breyer issued an opinion concurring in part and dissenting in part, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Kagan joined.  And Justice Alito issued an opinion concurring in part and dissenting in part, in which Justice Thomas joined.

You can access the oral argument via this link.

The COSCA/NACM Joint Technology Committee’s Judicial Tools Working Group is preparing a white paper that will describe business capabilities that should be addressed by automation to support the work of judges and judicial teams.  A short survey seeks to determine the needs of judges, the business capabilities or things that they do that could benefit from technology support.  The survey will be open until June 23.  Responses are anonymous.  The white paper that is produced will be distributed to court leaders and to technology companies that support the judicial branch.

The survey may be accessed here.

Law school professor Ruthann Robson has an interesting commentary on the Constitutional Law professor’s blog:

The United States Supreme Court has granted certiorari in Elonis v. United States, a case regarding a criminal conviction for threats against his estranged wife and others posted on Facebook.

The question presented in the certiorari question is:

Whether, consistent with the First Amendment and Virginia v. Black, 538 U.S. 343 (2003), conviction of threatening another person requires proof of the defendant’s subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.

However, in its Order today [June 16, 2014], the Court stated:

In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant’s subjective intent to threaten.”

Thus, Elonis will be a case in which the statutory interpretation and the First Amendment are intertwined.

The Third Circuit panel opinion unanimously upheld the conviction of Anthony Elonis under 18 U. S. C. §875(c), rejecting his contention that the statute requires subjective proof of his intent to threaten, rather than objective proof. There is a split in circuits on whether subjective intent is required to make the statute constitutional after the Court’s decision in Virginia v. Black in which the Court declared a Virginia statute provided that cross-burning was “prima facie evidence” of a intent to intimidate.

The doctrine of “true threats” has long been a fraught one. As in other oft-called categorical exclusions from the First Amendment, the operative legal query is definitional: if the speech is a “true threat,” the speech is not protected; if it is not a “true threat,” then it is protected speech.

At times, this inquiry becomes grammatical. For example, the Third Circuit found that a particular posting that Elonis claimed was conditional and therefore could not be a “true threat,” could have reasonably been found by a jury to be a true threat.

Continue reading here.

Judges With Daughters More Likely to Favor Women’s Rights

A new study finds that judges with daughters “are more likely to vote in favor of women’s rights than ones with only sons. The effect . . . is most pronounced among male judges appointed by Republican presidents, like Chief Justice Rehnquist,” the New York Times reports.

The new study considered some 2,500 votes by 224 federal appeals court judges. “Having at least one daughter . . . corresponds to a 7 percent increase in the proportion of cases in which a judge will vote in a feminist direction.”

Additional daughters do not seem to matter. But the effect of having a daughter is even larger when you limit the comparison to judges with only one child.

Read the full article here.