Yahoo News has a story that begins:

Americans today are too sensitive about race, Supreme Court Justice Clarence Thomas told a gathering of college students in Florida on Tuesday.

Speaking at Palm Beach Atlantic University in West Palm Beach, Fla., Thomas, the second black justice to serve on the court, lamented what he considers a society that is more “conscious” of racial differences than it was when he grew up in segregated Georgia in the days before — and during — the civil rights era.

“My sadness is that we are probably today more race and difference-conscious than I was in the 1960s when I went to school. To my knowledge, I was the first black kid in Savannah, Georgia, to go to a white school. Rarely did the issue of race come up,” Thomas said during a chapel service hosted by the nondenominational Christian university. “Now, name a day it doesn’t come up. Differences in race, differences in sex, somebody doesn’t look at you right, somebody says something. Everybody is sensitive. If I had been as sensitive as that in the 1960s, I’d still be in Savannah. Every person in this room has endured a slight. Every person. Somebody has said something that has hurt their feelings or did something to them — left them out.”

The full story can be found here.

Gavel To Gavel reports that Missouri, Pennsylvania and Mississippi have proposed legislation to drug test judges.  Tennessee apparently will also consider legislation for drug testing judges in criminal cases by request of the defense or prosecution. The Tennessee legislation, SB 2542 / HB 2362, would provide that either party in a criminal trial may request in writing that the judge be drug tested. If the judge tests positive for an illegal drug, a substitute judge would be appointed. If the test is negative, no request is made, or the result a legal prescription drug, the trial resumes and neither side can assert on appeal that the judge was impaired by drugs.

News reports indicate that the impetus behind the bills was a particular judge who presided over a case in which the defendants were charged with raping, torturing, and murdering a couple in 2007. The judge was later found in 2011 to have purchased and taken drugs during breaks in court sessions and the convictions were overturned.

There is nothing in any of the legislation that deals with the necessity of judges passing field sobriety tests, nor whether they need to wear a robe when walking heel-to-toe or bending backwards and then touching their nose.

Nancy J. King (Vanderbilt University – Law School) has posted Sentencing and Prior Convictions: The Past, the Future, and the End of the Prior Conviction Exception to Apprendi (Marquette Law Review, Forthcoming) on SSRN.

Here is the abstract:

This article traces the fascinating history of early efforts to identify defendants and their prior convictions as well as the evolving use of prior convictions in aggravating punishment; examines how contemporary repeat offender penalties fall short of punishment goals and contribute to the racially lopsided profile of punishment today; and critiques potential justifications for the prior conviction exception to the rule in Apprendi v. New Jersey, arguing that the exception should be abandoned. The article summarizes empirical research testing the relationship between prior convictions and examining the efficacy of repeat offender sentences in reducing recidivism; collects commentary on the use of risk prediction in sentencing; surveys state-by-state eighteenth century authority that belies the claim that denying element status to prior convictions that raise the range of punishment is a longstanding tradition; evaluates the weaknesses of the case law underlying the Court’s decision in Almendarez-Torres; argues that defendants need not be prejudiced when prior convictions are treated as elements; and observes that the original reason that a very small number of states in the nineteenth century stopped requiring prior convictions to be treated as elements – namely, that an offender’s criminal history was often unknown unless or until a warden recognized him – no longer exists. An earlier version of the article was delivered as the Barrock Lecture on Criminal Law at the Marquette University Law School.

Joscha Legewie (Wissenschaftszentrum Berlin für Sozialforschung (WZB)) has posted Racial Profiling in Stop-and-Frisk Operations:  How Local Events Trigger Periods of Increased Discrimination on SSRN.

Here is the abstract:

Racial profiling and the excessive use of police force are divisive political issues with severe consequences for its victims and society at large. However, it is difficult to identify racial bias in observational studies and the causes of improper use of force are not well understood. Based on four natural experiments in New York City, this study shows that violence against police officers can lead to periods of disproportionate use of police force against racial minorities. Using data from 3.9 million time and geo-coded pedestrians stops, the findings show that, relative to similar stops before two fatal shootings of NYPD police officers by black suspects in 2007 and 2011, the use of physical force by police officers against blacks increased substantially in the days after the shootings. The use of force against whites and Hispanics, however, remained unchanged and there is no evidence for an effect of two other police murders by a white and Hispanic suspect. The race-specific pattern indicates that the events function as racial cues that temporarily exacerbate racial bias. Aside from the importance for the debate on racial profiling, this research proposes an event-centered study of discrimination, extending the focus of prior work from where discrimination takes place to when it happens.

The Huffington Post has an interesting story:

“Virginia Dickerson says she’s devoted the last three years to recovering from the drug problems that entangled her in the criminal justice system throughout her teens and 20s.

Now in her mid-30s, she’s been out of prison for more than a year, working 30 hours a week as a cook and server at a restaurant in Richland, Wash. She says she’s also looking for a full-time job, and volunteering for two organizations that help people overcome addictions and a third that provides arts programs to teens.

Still, if she fails to pay off the $8,000 in fines that she still owes county courts in southern Washington as a result of her arrests several years ago, she could end up right back in jail. District and Superior courts in Benton County ordered her to pay a total of $130 a month toward fines and fees stemming from two drug arrests in 2010 and 2011, one for possession of methamphetamines and the other for delivery. Dickerson was fined about $6,000 for her two drug charges, but has accrued about $2,000 in interest.

“I’ve done my time, and I’m doing anything in my power to clean up the wreckage of my past,” Dickerson said. “But I can’t pay the amount they want me to pay.”

In recent years, local governments throughout the United States have locked up growing numbers of people for failing to pay their legal debts. The American Civil Liberties Union and the Brennan Center for Justice released a pair of wide-ranging reports on the practice in 2010. Now, a new report takes a closer look at the emergence of modern-day “debtors’ prisons” in Washington state, specifically.

People throughout the state are often sent to jail because they can’t afford to pay the heavy fines and legal fees issued by county courts, says the report, released Monday by the ACLU of Washington and Columbia Legal Services.”

The complete article can be found here.

The New York Times has  an article that begins, “In an effort to bolster the number of lawyers for the poor, New York State’s top judge has cleared the way for law students to take the bar exam early in return for devoting their last semester to pro bono work.”

The article goes on to say, “Judge Lippman said the plan took aim at twin malaises afflicting the legal industry. Applications to law schools have plummeted in recent years as the cost of a legal education has soared and well-paid jobs for lawyers have dried up. Nearly half of graduates are not employed as lawyers nine months after they leave school, despite carrying record student-loan debts, the American Bar Association has reported. First year enrollment is lower than it has been since 1977.

At the same time, a scarcity has arisen of lawyers who serve low- and middle-income people in civil matters like foreclosures and tenant-landlord disputes, a stubborn problem Judge Lippman has called ‘the justice gap.'”

The full article is here.

Andrew Cohen has provided a dismaying glimpse of legislation in Tennessee that would gut state Supreme Court control over administrative functions of the judiciary.  Mr. Cohen cited Justice at Stake for expertise about the issue.

“There’s a reason no other state in the country has such a system,” Bert Brandenburg, JAS executive director, told Cohen for an article in The Week, a news magazine. “It denies the courts the most basic of administrative functions and seeks to make our courts of law answer to politicians instead of the law.”

Cohen called the legislation, which would transfer the administrative functions of the judiciary to the comptroller of the treasury, a “big ball of scorn for the state’s judiciary.”

Gavel Grab has details.

Recently, the Chicago Tribune reported on serious delays in criminal court processing in Cook County.  The Chair of the Cook County Board of Commissioners has publicly criticized the judges and the Chief Judge for — in her opinion — not doing enough to make the criminal courts efficient.  The New York Times had similar stories about defendants waiting years in pretrial detention for their day in court.  So perhaps the courts are not as efficient as everyone would hope.

Shedding light on the issue is this new paper by Darryl Brown, The Perverse Effects of Efficiency in Criminal Process.

Here is the abstract:

The need for greater efficiency in legal process is an undisputed premise of modern policy, and efficiency’s virtues hardly merit debate, notably by the U.S. Supreme Court. A central part of the story of modern adjudication is the steady gains in case processing efficiency. This, above all else, explains the “vanishing trial” and its replacement by civil settlement and, in criminal courts, by plea bargaining.

Defining efficiency in any context, however, is a more complicated endeavor than courts, policymakers, and many commentators commonly acknowledge. It requires first defining ends and means, and even whether a given practice is an end or a mean. Jury decision making, for example, was once an end of trial process that served public interests beyond rendering verdicts. Over time it has become merely a means; case resolution became the overriding dominant goal. Making a process more efficient can thus change both its nature and purposes. Moreover, efficiency’s consequences are more ambiguous than is often recognized. Producing any product more cheaply — including criminal convictions — can have a range of effects. It can reduce production costs if demand is constant; it can help to meet rising demand without a rise in production costs; it can also generate greater demand for the good.

This Essay develops these ideas in criminal adjudication and links adjudication’s efficiency-driven transformation to the expansion of criminal law enforcement and punishment in recent decades. By lowering the unit-cost of convictions, efficient adjudication can encourage more prosecutions and marginally subsidize more incarceration. In the process, efficiency has redefined adjudication’s aims and reordered its priorities, valuing clear, measurable aspects such as numbers of convictions and devaluing qualitative components related to juries, participation, the substantive nature of judgments, and perhaps factual accuracy.

Disqualifications motions do not often come, but when they do the motion raises not just a tricky legal issue, but lots of emotion from the lawyers.  The title of this post comes from a recent paper by Professor Keith Swisher (Phoenix School of Law).

The abstract states:

Lawyer disqualification — the process of ejecting a conflicted lawyer, firm, or agency from a case — is fairly routine and well-mapped in civil litigation. In criminal cases, however, there is an added ingredient: the Sixth Amendment. Once a defendant is entitled to counsel, the many questions that follow include whether and to what extent conflicts of interest (or other misconduct) render that counsel constitutionally ineffective. Most cases and commentary are arguably directed too late in the process — i.e., at the post-conviction stage in which the deferential Sullivan or even more deferential Strickland standard applies. A much faster and more effective remedy might be to disqualify problematic counsel on the front end. But the government might periodically use motions to disqualify as tools to weaken criminal defendants’ defense by depriving defendants of their chosen and effective advocates — just as civil litigants use motions to disqualify. This Essay takes a close look at the application of the Sixth Amendment in disqualification cases and concludes: (1) that when compared to other litigants, criminal defendants generally have weaker, not stronger, rights to ethical representation; and (2) that disqualification law in criminal practice generally weakens, not strengthens, defendants’ representation.

Given the caseloads confronting many trial court judges, the adage “work smarter, not harder” ought to be a staple in the way judges go about case management. There is no doubt that there are many judges who are thoughtful in approaching case management and are inquisitive about how to do things more efficiently or eliminate doing some things altogether.

A number of years ago I met Rebecca Kourlis.  At that time she had just recently resigned from the Colorado Supreme Court and was establishing IAALS, the Institute for the Advancement of the American Legal System.  Prior to serving on the Supreme Court, Becky was a trial judge.

Becky is a very dynamic woman who has assembled a very dynamic think tank.  I have been fortunate to serve on the IAALS Advisory Board (IAALS has excelled in spite of that).  If you are unaware of the Institute, it is worth looking at their web site.  Their latest publication, “Working Smarter, Not Harder: How Excellent Judges Manage Cases,” is clearly worth looking at.

Here is a link to the Advisory and the report:  http://online.iaals.du.edu/2014/01/21/new-report-recommends-courtroom-efficiency-strategies-for-judges-from-judges/

The link to the IAALS web site is:  IAALS, the Institute for the Advancement of the American Legal System, http://iaals.du.edu/