The issue of judges occasionally trying to be very creative in their sentencing is not peculiar to Manitoba nor even Canada. In the United States there are examples in many states. Some judicial conduct commissions have even gone so far as to rule that there are ethical restrictions on the requirement that a defendant make a charitable contribution.

In R. v. CHOI, 2013 MBCA 73, August 22, 2013, the accused was convicted of an under section 124(1)(c) of the Immigration and Refugee Protection Act (IRPA).

The trial judge imposed a conditional discharge which included the following condition:

(f) Make a charitable contribution in the sum of $6,000 to the International Centre and $6,000 to Welcome Place within the first nine months of this order.

Payment is to be made through the office of the Clerk of the Court, with no tax receipt to be provided or accepted.

The circumstances involved were described by the Manitoba Court of Appeal in the following manner:

At the material time, the accused was the president, director and principal shareholder of two corporations which operated two sushi restaurants in Winnipeg.  The accused, by his guilty plea, admitted that he employed six foreign nationals to work at the restaurants, without authorization, for certain periods between June 22, 2008 and May 26, 2009.

 

The Crown appealed from the sentence imposed. The Crown argued that “the sentencing judge committed an error in principle by argues that the condition, which ordered that the accused make a charitable donation of $6,000 to each of two named charities, was an optional condition imposed, in error, under s. 732.1(3)(h) of the Criminal Code (the Code).  It says that the only legal justification for the use of an optional condition in a probation order pursuant to s. 732.1(3)(h) of the Code is that it would protect society and facilitate the successful reintegration of the offender into the community after his crime.

The Crown asserts that the judge was silent in her reasons for sentence as to how such charitable donations would or could accomplish those purposes in the circumstances of this case.  This error in principle, argues the Crown, makes the sentence unfit.”

 

The Court of Appeal held that “the imposition of a condition in a probation order which forms part of a conditional discharge sentence requiring that an accused make a donation of $6,000 to each of two named charities is not a sentencing option available under the Code.” The Court of Appeal concluded that “the accused’s conduct should be denounced, and a conditional discharge does not amount to adequate denunciation…Moreover, general deterrence is required and is not adequately addressed by a conditional discharge.”

The Court of Appeal set aside the discharge and imposed a fine of $15,000.00.

The North Carolina Court of Appeals has held North Carolina’s ban on registered sex offenders using social media sites like Facebook and Twitter unconstitutional.   The court said the ban “is not narrowly tailored, is vague, and fails to target the ‘evil’ it is intended to rectify.”

“The statute violates the First Amendment’s guarantee of free speech, and it is unconstitutional on its face and as applied. Accordingly, we vacate the trial court’s judgment.”  The ruling centered around a Durham case in which Lester Gerard Packingham appealed his felony conviction for accessing a commercial networking site last year.  According to the trial records, the Durham Police Department was looking at evidence that registered sex offenders were using the websites MySpace and Facebook, and an officer recognized Packingham’s photo on Facebook.  The opinion is available at this link.

If you are a sitting judge in any large urban area you will occasionally see someone charged with begging (and that someone is not a sitting judge asking legislators to vote for a judicial pay raise but a real person begging). And so a ruling that Michigan’s anti-begging statute cannot withstand facial attack because it prohibits a substantial amount of solicitation, an activity that the First Amendment protects, but allows other solicitation based on content might be of interest to you or the local public defender.  A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued this ruling.

Bill Raftery had an interesting post recently in Gavel to Gavel,

“There’s an assumption that all state judges are permitted to perform marriages. While this is true in some states, it does not apply to every single jurist in every state.

North Carolina’s “General Court of Justice” (as the branch is formally known in the state constitution) has four types of judges: Supreme Court Justices, Court of Appeals Judges, Superior Court Judges, and District Court Judges. Current state law (§ 51-1) provides none of them may preside over a marriage and that that a marriage is valid only if done

1.            In the presence of an ordained minister of any religious denomination, a minister authorized by a church, or a magistrate; and with the consequent declaration by the minister or magistrate that the persons are husband and wife; or

2.            In accordance with any mode of solemnization recognized by any religious denomination, or federally or State recognized Indian Nation or Tribe.

For years there have been efforts to try to add, either temporarily or as a permanent amendment to the law, at least some judges to the list of those who can perform marriages. The latest effort was 2013′s SB 236. As approved by the House, the bill would add Superior Court judges to the list for 3 days in November.

Efforts, most notably in 2005, to make permanent the power of the state’s judges to perform marriage ceremonies have gone nowhere. And so the question is if North Carolina judges cannot do weddings why are they allowed to do the divorces?

From The New York Times:

A federal judge this week threw out the conviction of a 66-year-old Long Island man found guilty in 2008 of molesting his granddaughter and two of her friends after defense lawyers investigated a serial number on the back of a photograph that refuted a key portion of the prosecution’s case.

First, [habeas counsel] Salpeter found a serial number on the back of the Coney Island photo and learned from Polaroid, which manufactured the film, that it had been taken in 2000, despite B.M.’s testimony and the date on the souvenir frame. In the Halloween photo, one of the girls was wearing a sweatshirt with a logo reading “Princess University.” Mr. Salpeter determined that the brand had not been trademarked until 2000.

Moreover, Mr. Salpeter figured out that the educational toy, Turbo Twister Spelling, was not produced until at least a year after B.M. had claimed to have received one from Mr. Green. He finally determined, with a simple phone call to the show’s producers, that “Law & Order: SVU” was not on the air when B.M. claimed to have seen it.

The Fair Courts Litigation Task Force has started a new website created to track litigation that could have an impact on the fairness of our courts. A joint effort of the Brennan Center for Justice, the Campaign Legal Center, the National Center for State Courts, Justice at Stake, and the American Judicature Society, the website “serves as a clearinghouse of litigation from across the U.S. that either challenges or supports ethical rules aimed at keeping our judiciary free from partisan politics and outside influences. These include the financing of judicial elections, judicial campaign conduct rules, merit selection of judges, and rules governing the recusal of judges from cases.” Matt Menendez, counsel at the Brennan Center, explains, “Fair and impartial courts are the guarantor of equal justice in American democracy. Monitoring litigation impacting our judiciary will enable us to determine where reforms are needed and when the independence of our courts is at risk.”

Sources: Fair Courts Litigation Task Force, http://www.faircourtslitigation.org/; Groups Launch Litigation Clearing House Aimed at Keeping Courts Fair and Impartial, Justice at Stake, August 8, 2013.

There are a lot of judges and court administrators who are pretty exercised about the cost of providing interpreters. The American Bar association and the United States Justice Department have both clashed with state court leaders on this issue. So when a state makes a significant statement on the issue it is worth paying attention.  The Associated Press has a report that begins, “The New Mexico Supreme Court is cautioning trial courts and lawyers in the heavily Hispanic state that citizens who don’t speak English have the right to serve on juries — a right enshrined in the state constitution even if people are non-English speakers.”

You can access the ruling of the Supreme Court of New Mexico at this link.

The Montreal Gazette reports that,

“Canada’s justice system has become out of reach for many of those who need it most, according to a new report by the Canadian Bar Association that calls on the federal government to restore legal aid funding to the level it was at in the mid-1990s as part of a systemic overhaul to be completed by 2030.

The summary report released Sunday at the organization’s annual convention said while legal aid funding has increased over the last five years, it’s still down about 20 per cent overall compared to pre-1994 levels.

Furthermore, the federal government has gradually reduced its share of funding for both criminal and civil legal aid. Up until 1995, the report argues, the federal government split the cost with the provinces and territories 50-50. It now contributes just 20-30 per cent of the cost.

“Like health care, justice is a shared governmental responsibility,” says the report. “A reinvigorated federal role is imperative if we are to reach equal justice.”

The report calls on the government to return to 50 per cent cost sharing in criminal matters and to establish a “dedicated” contribution to civil legal aid. It also calls for legal aid services to be expanded and improved.

“The reduction in federal spending overall, increased complexity in the substantive law and growing demands for criminal legal aid have placed pressure on legal aid providers to ration services — in a way often inconsistent with the general purpose and public policy values underlying the program,” says the report.”  The  author of the report  Melina Buckley says one of the biggest concerns is the growing number of people who represent themselves in civil cases. Ms. Buckley says many people earn just enough money so they don’t qualify for legal aid, but they also don’t make enough to pay for a lawyer. Those people often find themselves on their own in court, she says.

The problem is especially pronounced in family law cases.

“They describe that as just being a terrible experience,” said Buckley.

The Chicago Tribune has a very interesting story about retired United States Supreme Court Justice Sandra Day O’ Connor “Retired U.S. Supreme Court Justice Sandra Day O’Connor hasn’t given much thought to which was the most important case she helped decide during her 25 years on the bench. But she has no doubt which was the most controversial.

It was Bush v. Gore, which ended the Florida recount and decided the 2000 presidential election. Looking back, O’Connor said, she isn’t sure the high court should have taken the case.

“It took the case and decided it at a time when it was still a big election issue,” O’Connor said during a talk with the Tribune editorial board. “Maybe the court should have said, ‘We’re not going to take it, goodbye.'”

The case, she said, “stirred up the public” and “gave the court a less-than-perfect reputation.”

The chief federal district court judges in 49 states in a joint letter called upon Congress to avoid another round of automatic spending cuts that they said would have a “devastating and long-lasting impact” on the federal courts.

The chief judges argue that the $350 million budget reduction that came as a result of sequestration    has had a significant and unacceptable impact.

The letter states:

We write to you as Chief Judges of 87 federal district courts to express our grave concern over the impact the flat funding of the last few years, followed by sequestration, is having on the Judiciary’s ability to carry out its constitutional and statutory responsibilities. As the boots on the ground in our nation’s federal trial courts, we have experienced firsthand the effect of those constraints and funding reductions. They have forced us to slash our operations to the bone, and we believe that our constitutional duties, public safety, and the quality of the justice system will be profoundly compromised by any further cuts.

Under Article III of the Constitution, the Federal Judiciary is responsible for fairly and effectively adjudicating many of the most significant criminal and civil controversies of our times. Over the years, with the support of Congress, the Judiciary has been able to forge and maintain one of the most respected justice systems in the world.

Flat funding followed by the sequestration cuts that took effect March 1, 2013, have had a devastating impact on court operations nationwide. Final enacted appropriations for fiscal year 2013 were reduced nearly $350 million for the Judiciary. Emergency measures were implemented throughout the federal court system to address the drastically reduced funding levels, but the federal courts do not have the flexibility to absorb such a large cut on top of previous flat funding. These emergency actions represented a conscientious effort by the Judiciary to mitigate the adverse impact of sequestration on court operations in an attempt to ensure continued access to justice for the citizens of this country. However, the cuts have created an unprecedented financial crisis that is adversely affecting all facets of court operations.

As a result of sequestration, funding allocations sent out to court units were cut 10 percent below the fiscal year 2012 level. Clerks of court and probation and pretrial services offices will downsize by as many as 1,000 staff during fiscal year 2013 due to this reduction in funding. Staffing in these same offices has been reduced by nearly 2,100 staff between July 2011 and July 2013, representing a 10 percent staffing loss to the Judiciary over this two-year period. Our current staffing level is the lowest it has been since 1999 despite significant workload growth during this same period of time. In addition to downsizing, the courts have already incurred 4,500 furlough days as of June 2013, and an additional, 4,100 furlough days are projected by the end of the fiscal year. These staffing losses are resulting in slower processing of civil and bankruptcy cases which impacts individuals and businesses seeking to resolve disputes in the federal courts. For example, in the bankruptcy court in New York, venue for many mega-cases involving thousands of jobs and companies with a vast impact on commerce and finance, staffing losses require that court proceedings end at 5:00 p.m. instead of continuing to conclusion as they have in the past – often late into the night.

Funding cuts to the Judiciary have also put public safety at risk. The Judiciary employs nearly 6,000 law enforcement officers—probation and pretrial services officers—to supervise individuals in the community after they have been convicted of a crime and subsequently released from prison, as well as defendants awaiting trial. The number of convicted offenders under the supervision of federal probation officers hit a record 187,311 in 2012 and is on pace to reach 191,000 by 2014. At a time when the workload in our probation and pretrial offices continues to grow, budget cuts have reduced funding allocations to these offices by 10 percent. Staffing in probation and pretrial services offices is down nearly 600 (7 percent) since 2011. These offices are tasked with ensuring public safety by monitoring criminal defendants through, among other things, in-person meetings, drug testing, drug, mental health and sex offender treatment, and GPS-tracking. Additionally, probation offices facilitate the safe re-integration of these defendants into the community by performing premises searches for items such as illegal weapons, illegal drugs, and child pornography. Cuts to officer staffing levels have forced cutbacks in these activities to crisis levels, meaning less deterrence, detection, and response to possible criminal activity by federal defendants in the community and more illegal weapons, drugs, and other contraband left in the community. Particularly troublesome is the 20 percent cut that had to be made to the law enforcement allotments that fund drug, mental health, and sex offender treatment and testing services for offenders, searches, and electronic and GPS monitoring.

Security at courthouses has suffered as well. Sequestration resulted in a 30 percent cut in funding for court security systems and equipment, and court security officers are being required to work reduced hours, creating security vulnerabilities throughout the federal court system. Further cuts threaten the ability of the Judiciary to maintain needed security at courthouses, including those where terrorism and other sensitive cases are resolved. Also as a result of budget cuts, we fear we will run short of funding for grand and petit jurors and have to make additional cuts elsewhere or risk delaying indictments and civil jury trials.

But the most significant impact of budget cuts and sequestration thus far has been the reduction in funding for Defender Services. These organizations, which have always run on modest budgets while providing high quality legal services, fulfill the mandate of the Sixth Amendment and the Criminal Justice Act for the appointment of counsel for criminal defendants who lack the financial resources to hire an attorney. Because we must provide counsel for indigent defendants, the only options for absorbing the more than $50 million cut to the Defender Services account are reducing federal defender organization (FDO) staffing levels (through layoffs or furloughs) and/or deferring or reducing payments to private panel attorneys. Reducing FDO staff (who work on salary) results in appointments being shifted to CJA panel attorneys (who charge hourly), thus increasing costs rather than reducing them and deferring more panel attorney payments into the next fiscal year. This is an untenable approach, both because it increases costs overall and because adding to appropriations requirements in the coming fiscal year compounds the shortfall of funding in the overall account.

The emergency measures taken by the Judiciary as a result of sequestration will require suspension of payments to private panel attorneys for the last three weeks of the fiscal year, while the FDOs are making staff reductions and furloughing employees for an average of 15 days over the last half of the fiscal year. Between October 2012 and June 2013, FDOs downsized by about 160 staff, representing a 6 percent decline. Since March 2013, their remaining employees were furloughed for over 12,500 furlough days. We can already see the impact of FDO staffing reductions in our courts. The federal defender office in New York recently asked to postpone the trial of alleged terrorist Sulaiman Abu Ghaith, Osama bin Laden’s son-in-law, because of staff cutbacks. Our courts in the District of New Mexico, the Western District of Texas, and the Western District of New York have stopped scheduling criminal matters on alternating Fridays because of FDO staffing shortages.

Exacerbating the problem in the defenders account is the fact that the Judiciary has no control over the number and nature of cases in which court-appointed counsel must provide a defense. The caseload is driven entirely by the prosecutorial policies of the Department of Justice and its 93 United States Attorneys. The Department of Justice is not furloughing staff. The pace at which criminal cases require court-appointed counsel has continued unabated, while resources in the Defender Services program are diminishing. As chief district judges, we are deeply concerned that the cuts in federal defender offices will severely undermine and weaken a program that has taken years to build. Meanwhile, deferrals of panel attorney payments could jeopardize the Judiciary’s ability to convince well-qualified counsel to accept panel appointments.

Reductions in court budgets reduce the overall volume of work that the Judiciary is able to perform and communicate timely to the public in a variety of ways, again undermining our core constitutional responsibilities. Reductions in the hours and number of administrative and judicial staff reduce our output. Our inability to maintain our information technology infrastructure both reduces our output and delays the communication of that output to the public. This undermines the public confidence in our system as litigants wait longer for relief. When cases lag, the Judiciary is seen as inefficient, or worse, unsympathetic to litigants ranging from pro se litigants (who represent themselves) to individuals and companies seeking bankruptcy relief or the resolution of civil disputes to the government and defendants in criminal cases.

We commend the House and Senate Appropriations Committees for their attention to our concerns, both in the past and at present. The Senate Appropriations Committee recently approved S. 1371, which would provide the Judiciary with a $496 million increase in funding for FY 2014. This is roughly 7 percent more than the FY 2013 post-sequestration funding that the Judiciary received, and it is sufficient to fund fully the Judiciary’s FY 2014 re-estimated budget request. The House Appropriations Committee recently approved H.R. 2786, which would provide the Judiciary with a $363 million increase in funding for FY 2014, representing a roughly 5 percent increase over the FY 2013 post-sequestration funding received by the Judiciary. Increases in funding of this nature are absolutely essential to our ability to fulfill our constitutional mandate and to ameliorate the concerns we have expressed above. We commend those in Congress who understand our needs as well as our dedication to being good stewards of taxpayer funds. Still, we remain deeply concerned about the effects on our mission in the event a Continuing Resolution (CR) is enacted for the full year. A second year under sequestration will have a devastating, and long lasting, impact on the administration of justice in this country. We urge you to include an anomaly for the Judiciary, at the Senate bill level, if it appears we will be operating under a full-year CR.

The work of the Federal Judiciary derives from functions assigned to us by the United States Constitution and the statutes enacted by Congress. We do not have projects or programs to cut; we only have people. We must adjudicate all civil and criminal cases that are filed with the courts, we must protect the community by supervising defendants awaiting trial and criminals on post-conviction release, we must provide qualified defense counsel for defendants who cannot afford representation, we must pay jurors for costs associated with performing their civic duty, and we must ensure the safety and security of judges, court staff, litigants, and the public in federal court facilities. Our workload does not diminish because of budget shortfalls. Deep funding cuts simply mean that the Judiciary cannot adequately perform its responsibilities.

In closing, we understand that the economic climate across the nation is difficult, and we appreciate Congress’s consideration. In response to reductions resulting from sequestration, we have cut as much as possible while striving to uphold our core mission. Another round of cuts would be devastating. As the folks on the front lines, interacting with and serving the public on a daily basis, we conclude by emphasizing that any further cuts to the Judiciary would directly affect our ability to carry out our constitutional and statutory duties. We look to the Congress to recognize the uncontrollable nature of our workload and to provide the resources necessary for the Judiciary to perform its essential functions.