Adam Liptak is among the more thoughtful reporters who specialize in legal affairs. His piece in the New York Times begins,

Last month’s Supreme Court rulings on same-sex marriage were major gay rights victories. But countless questions about the legal rights of gay men and lesbians remain. Here’s one: May gays be excluded from juries on account of their sexual orientation? The federal appeals court in California will soon decide the issue, which turns out to be surprisingly knotty.

It arose at the 2011 trial of an antitrust fight between two giant drug companies. After a potential juror appeared to reveal that he was gay, a lawyer for Abbott Laboratories used a peremptory strike — one that does not require a reason — to eliminate him from the jury pool.

An opposing lawyer objected, saying the juror “is or appears to be, could be, homosexual.”

That mattered, the lawyer said, because “the litigation involves AIDS medications” and “the incidence of AIDS in the homosexual community is well known, particularly gay men.”

In legal terms, the lawyer had just tried to raise a Batson challenge, named after a 1986 Supreme Court decision, Batson v. Kentucky. That decision recognized an exception to the general rule that peremptory challenges are completely discretionary. Race, the court said, cannot be the reason.

Eight years later, the court said that gender cannot be the reason, either. But it has never addressed sexual orientation.”

The complete story can be found at:

http://www.nytimes.com/2013/07/30/us/court-weighs-exclusion-of-jurors-because-theyre-gay.html?_r=0

In State v. Ragland, State v. Null, and State v. Pearson, the Iowa Supreme Court decided whether a sentence for murder of life with the possibility of parole after 60 years (Ragland), a sentence for murder and robbery of 75 years with the possibility of parole after 52.5 years (Null), and a sentence for two counts of armed robbery and burglary of 50 years with the possibility of parole after 35 years (Pearson) constitute cruel and unusual punishment when imposed on a minor.

Each challenge stems from the U.S. Supreme Court’s 2012 ruling in Miller v. Alabama. There, a five-justice majority ruled that a mandatory life sentence without the possibility of parole for a juvenile is unconstitutional. Judges can still impose a life a sentence without the possibility of parole in some cases, but they must use their discretion when doing so (that is, the sentence can’t be mandatory).

The defendants in Ragland, Pearson, and Null asked the Iowa Supreme Court to expand Miller. Professor Douglas Berman has an interesting post on his Sentencing Law & Policy blog:

“As reported in this local article, headlined “Hundreds of juveniles could appeal felony sentences under Iowa court rulings,” the Iowa Supreme Court handed down three notable opinions today that operationalize the US Supreme Court’s opinion in Graham concerning LWOP sentences for juvenile non-homicide offenders. Here are the basics:

Hundreds of juveniles convicted of felonies could apply to have their sentences reviewed under three decisions handed down last Friday by the Iowa Supreme Court.

Iowa’s high court upheld a lower court’s decision to reduce the sentence of Jeffrey Ragland, now 44, to life in prison with a possibility of parole after 25 years. Ragland, when he was 17 was convicted of first-degree murder, which carries a mandatory sentence of life in prison without parole, even though he did not swing the tire iron that killed a man.

The Iowa court also ordered two other juvenile cases for resentencing that did not involve mandatory life sentences without parole: Denem Anthony Null, now 20, is serving a minimum sentence of more than 52 years for a 2010 murder and robbery. He was 16 at the time of his crimes. Desirae Monique Pearson, now 19, is serving a minimum of 35 years for robbery and burglary committed in 2010….

In the rulings, the court said Gov. Terry Branstad overreached last year when he sought to keep 38 juveniles in prison who were convicted to life in prison without a chance of parole. The governor imposed life sentences with a chance of parole after 60 years after the U.S. Supreme Court ruled a teenager convicted of murder must be sentenced differently than adults.

Friday’s decisions produced sharp divisions on the high court. Justice Edward Mansifeld, in his dissent in Pearson’s case, cautioned the high court’s broad interpretation of the U.S. Supreme Court ruling regarding juvenile sentencing could produce a “flurry” of court hearings. He said the 425 juvenile inmates serving time in Iowa prisons “may now have a ticket to court and a potential resentencing.”

“This would be unprecedented,” said Mansfield, noting other state courts have chosen to reconsider sentences that locked up juveniles for life without parole.

The impact of the court’s decision remains to be seen. Dozens, or even hundreds of cases, spread across Iowa should not strain the court system, said Robert Rigg, a Drake University law professor. The fact that juveniles convicted of serious felonies can ask for new sentences only opens the door to a hearing, and does not guarantee anything beyond that, Rigg said. The high court has required a judge consider a variety of factors during sentencing, such as a youth’s history, socioeconomic background, history of substance abuse and psychiatric evaluations, he said.

All this information is already gathered. But under mandatory sentencing laws, a judge is not allowed to consider these factors, Rigg said. “When we have mandatory minimums, you order these investigations but can’t use them in sentencing,” Rigg said.

Gov. Terry Branstad intends to work with the legislature to establish criminal sentences that keeps convicted juveniles in prison, said Tim Albrecht, the governor’s spokesman. The high court’s decision does not affect the governor’s authority to grant clemency, which includes commutation of life sentences, he said. “Victims must never be re-victimized and can never be forgotten from the process,” Albrecht said. “The governor and lieutenant governor look forward to working with the Iowa Legislature to find a way to keep dangerous juvenile murderers off the streets and keep Iowans safe.”

Lawmakers could find it difficult to change the state’s juvenile sentencing laws if they disagree with the court’s rulings, because justices used the Iowa constitution to make its case. Those who disagreed with the court’s 2009 decision that legalized same sex marriage ran into similar roadblocks, said Rigg, the Drake professor, who noted this approach also means the decision can’t be appealed to the U.S. Supreme Court.

State law until last year required anyone sentenced for first-degree murder, regardless of age, to spend life in prison without parole. Other mandatory sentences also existed for serious felonies. In June 2012, though, U.S. Supreme Court in Miller v. Alabama found such sentences to be cruel and unusual based on brain research showing that juveniles are less culpable for their crimes due to differences in brain development and impulse control.

Branstad’s immediate response to that federal ruling was a blanket commutation order that allowed parole for teen murderers only after they had spent 60 years behind bars. That move was widely criticized by lawyers and advocates for the 38 people serving time for such murders. Several of the offenders are appealing saying that 60 years still constitutes a long period of time behind bars….

After the U.S. Supreme Court, Ragland’s attorney sought parole for his client. The district court ruled that Branstad exceeded his authority and resentenced Ragland to life in prison with the possibility of parole after 25 years.

The Iowa Supreme Court, in Friday’s unanimous decision, upheld the lower court’s ruling. The court agreed with the district court’s findings that the governor’s commutation still amounted to a life sentence without parole. Ragland would be 78 before he could possibly be released and near the end of his statistical life expectancy….

The court continued in its opinion: “In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.”

In a concurring opinion, Justice David Wiggins wrote that Branstad’s imposition of a sentence “might constitute a denial of due process.” In his concurring opinion Justice Bruce Zager wrote that he believed Branstad exceeded his constitutional authority when Branstad removed Ragland’s ability to earn good time credit against the commuted sentence.

Jon Kinnamon, Ragland’s attorney, said the court’s decision will open the door for his client to seek parole. He doesn’t know when Ragland’s case could be reviewed by the board, he said. He said he planned to contact Ragland and his family yet today. “I would presume that the next step would be that he would be in front of the parole board,” he said.

All three of the Iowa Supreme Court opinions are available via this webpage, and the Ragland opinion reference above is at this link. The longest opinion of the three is in Iowa v. Null, and its 83 pages can be found at this link.”

The New York Times has an editorial praising Attorney General Holder’s call for smarter sentencing:

You know a transformational moment has arrived when the attorney general of the United States makes a highly anticipated speech on a
politically combustible topic and there is virtually no opposition to be heard.

That describes the general reaction to Eric Holder Jr.’sannouncement on Monday that he was ordering “a fundamentally new approach” in
the federal prosecution of many lower-level drug offenders. What once would have elicited cries of “soft on crime” now drew mostly nods of agreement. As
Mr. Holder said, it’s “well past time” to take concrete steps to end the nation’s four-decade incarceration binge — the result of harsh sentencing laws
enacted in response to increased violent crime in the late 1960s and 1970s.

The statistics have been repeated so often as to be numbing:
1.57 million Americans in state and federal prisons, an increase of more than 500 percent since the late 1970s, at a cost of $80 billion annually. In 2010,
more than 7 in 100 black men ages 30 to 34 years old were behind bars. The federal system alone holds 219,000 inmates, 40 percent above its capacity,
thanks to strict sentencing guidelines and mandatory minimum sentences. Of these inmates, nearly half are in prison for drug-related crimes.

The full editorial can be found at: http://www.nytimes.com/2013/08/14/opinion/smarter-sentencing.html?ref=opinion

Attorney general Eric Holder made a major speech at the annual American Bar Association conference. He said in part, “I have mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels, will no longer be charged with offenses that impose draconian mandatory minimum sentences.”

The Attorney General called for  a plan to create a slate of local guidelines to determine if cases should be subject to federal charges. In his speech the  Attorney General  pointed  to the bipartisan backing of such goals in Congress, where there is “legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.”

For the most part there has been support for the Attorney General’s new initiative. Judge Kevin Burke was interviewed about his thoughts by Dan Barrerio. The clip can be found at 14.40:

http://www.kfan.com/media/podcast-dan-barreiro-kfan-fm-1003-KFAN_Barreiro/813-5p-top-5-at-5-23579779/

In ONTARIO v. CRIMINAL LAWYERS ASSOCIATION OF ONTARIO, 2013 SCC 43, August 1, 2013, the Supreme Court of Canada considered the authority of courts of inherent jurisdiction and courts of statutory authority to appoint amici curiae.   On this point the Court stated:

The capacity of a superior court to appoint an amicus stems from the court’s inherent jurisdiction to act where necessary to ensure that justice can be done.  For a statutory court, the capacity stems from the court’s power to manage its own process and operate as a court of law, and arises in situations where the court must be able to appoint an amicus in order to exercise its statutory jurisdiction.

In this appeal, four trial judges appointed counsel to assist the accused, who had in each case discharged counsel of their choice.  In each of the cases, the amicus refused to accept the legal aid rate offered by the Attorney General.  The trial judge in each case fixed a rate that exceeded the tariff, ordering the

Attorney General to pay.  The Attorney General appealed all four decisions. The Ontario Court of Appeal concluded that provincial and superior courts have the jurisdiction to fix the rates of compensation.  The Attorney General appealed from that decision to the Supreme Court of Canada.

The Supreme Court of Canada allowed the appeals.  In describing the issue raised, it noted, at paragraph 2, that it “is not disputed that a court may appoint a lawyer as ‘amicus curiae’, a ‘friend of the court’, to assist the court in exceptional circumstances; or that the Attorney General is obligated to pay amici curiae when appointed.”  The Court indicated that the issue “is whether a court’s inherent or implied jurisdiction extends to fixing the rates of compensation for amici curiae.” The Court also cautioned against the overuse of such appointments, pointing out that the appointment of amicus should “be used sparingly and with caution, in response to specific and exceptional circumstances.” Interestingly, the Court said that while “trial judges are obliged to assist unrepresented litigants, they are not permitted to give them strategic advice.”

The Supreme Court of Canada held, at paragraph 5, that absent “statutory authority or a challenge on constitutional grounds, courts do not have the institutional jurisdiction to interfere with the allocation of public funds.  While the jurisdiction to control court processes and function as a court of law gives courts the power to appoint amici curiae, it does not, in itself, provide the power to determine what the Attorney General must pay them.  The scope of a superior court’s inherent power, or of powers possessed by statutory courts by necessary implication, must respect the constitutional roles and institutional capacities of the legislature, the executive and the judiciary.  As the Chief Law Officers of the Crown, responsible for the administration of justice on behalf of the provinces, the Attorneys General of the provinces, and not the courts, determine the appropriate rate of compensation for amici curiae.”

The Court also held that in “cases where the lawyer contemplated by the court opts not to accept the compensation offered by the Attorney General, the court does not, in my view, have the ability to specify a rate of remuneration in order to secure the amicus of its choice.” [paragraph 70]

The Supreme Court of Canada concluded that “if the assistance of an amicus is truly essential and the matter cannot be amicably resolved between the amicus and the Attorney General, the judge’s only recourse may be to exercise her inherent jurisdiction to impose a stay until the amicus can be found.  If the trial cannot proceed, the court can give reasons for the stay, so that the responsibility for the delay is clear.” [paragraph 76]

Tyler, Fagan & Geller on Street Stops and Police Legitimacy

Tom Tyler , Jeffrey Fagan and Amanda Geller (Yale University – Law School , Columbia Law School and Columbia University Mailman School of Public Health) have posted Street Stops and Police Legitimacy: Teachable Moments in Young Urban Men’s Legal Socialization on SSRN. Here is the abstract:

An examination of the influence of street stops on the legal socialization of young men showed an association between the number of police stops and a diminished sense of police legitimacy. This association however is not only a consequence of the number of street or car stops they experience or of the degree of police intrusion that occurs during those stops. Rather, the estimated impact of involuntary contact with the police is mediated by evaluations of the fairness of police actions and judgments about whether the police are acting lawfully. Whether the police are viewed as exercising their authority fairly and lawfully directly shapes respondent’s decision acceptance and the impact of stops on respondent’s general judgments about police legitimacy. Fairness and lawfulness judgments, in turn, are influenced by the number of stops or the degree of police intrusion during those stops. Similarly, judgments of justice and lawfulness mediate the estimated influence of judgments of the general character of police behavior in the community on general perceptions of police legitimacy. These results suggest that the widespread use of street stops undermines legitimacy. Lowered legitimacy has an influence on both law abidingness and the willingness to cooperate with legal authorities. However, the findings also show that it is not only police streets or police conduct during such stops that matters per se, but more importantly public perceptions of police injustice/illegality during those stops. The results suggest that police legitimacy is shaped by how fairly/legally the police are viewed as exercising their authority.

STATE OF WASHINGTON v. KIRK RICARDO SAINTCALLE, Supreme Court of Washington, August 1, 2013

Kirk Saintcalle, a black man, challenged his first degree murder conviction claiming that the State peremptorily struck the only black venireperson in the jury pool. Saintcalle’s challenge was rejected but in the context of this case the Washington Supreme Court calls for “new alternatives to the Batson analysis” to identify ways to take into account implicit biases:

“Unconscious stereotyping upends the Batson framework. Batson is only equipped to root out “purposeful” discrimination, which many trial courts probably understand to mean conscious discrimination. See Batson, 476 U.S. at 98. But discrimination in this day and age is frequently unconscious and less often consciously purposeful. That does not make it any less pernicious. Problematically, people are rarely aware of the actual reasons for their discrimination and will genuinely believe the race-neutral reason they create to mask it. See Page, supra, at 175-77. Since Batson’s third step hinges on credibility, this makes it very difficult to sustain a Batson challenge even in situations where race has in fact affected decision-making.” Id.

The full opinion is well worth reading for anyone interested in how implicit bias will be considered in the courts. It’s available at the Washington Supreme Court site,

http://www.courts.wa.gov/index.cfm?fa=controller.managefiles&filePath=Opinions&fileName=862575.pdf

Achieving excellence in courts is not easy. The truth is we live in a time when there is a lot of public distrust of public institutions. Public employees are not always as appreciated as much as they should be. I occasionally contribute to the dialog about these issues for a blog published by Thompson Reuters. I thought I would share a very short piece with you.

http://westlawinsider.com/government/achieving-excellence-in-courts/

Foreign law has always been a part of the American judicial fabric. Many attempts to draft constitutional forms of government, including the United States Constitution, trace their lineage back to Magna Carta. But a growing number of states are targeting what they see as a threat to their court systems: the influence of international laws.

North Carolina last month became the seventh state to pass legislation barring judges from considering foreign law in their decisions, including sharia. The bill awaits the signature of Republican Gov. Pat McCrory.

Six other states — Arizona, Kansas, Louisiana, Oklahoma, South Dakota and Tennessee — have already enacted similar legislation since 2010, and at least 25 have introduced such measures, according to the Pew Research Center’s Religion and Public Life Project.

One exception to this trend is Missouri. In June, Missouri Gov. Jay Nixon, a Democrat, vetoed a foreign law bill, saying it would make international adoptions more difficult.

At their meeting last week the Conference of Chief Justices and the Conference of State Court Administrators adopted an important resolution regarding procedural fairness in courts. The test is as follows:

CONFERENCE OF CHIEF JUSTICES

CONFERENCE OF STATE COURT ADMINISTRATORS

Resolution 12

In Support of State Supreme Court Leadership to Promote Procedural Fairness

 

 

WHEREAS, a fundamental role of courts is to ensure fair processes and just outcomes for litigants; and

 

WHEREAS, the constitutional guarantee of due process is designed to ensure that court decisions are made through legally fair procedures; and

 

WHEREAS, extensive research demonstrates that in addition to providing legal due process, it is important also to meet the public’s expectations regarding the process in order to  increase positive public perceptions of the court system, reduce recidivism, and increase compliance with court orders; and

 

WHEREAS, a number of state courts have incorporated the key components of procedural fairness—voice (allowing litigants to be heard), neutrality (making decisions based on neutral, transparent principles), respectful treatment, and trust (the perception that the judge is sincere and caring)—into their judicial education programs, court performance measures, and public outreach information to focus attention on the importance of fair procedures as defined by the public; and

 

WHEREAS, resources have been developed to help the courts in addressing procedural fairness and incorporating such concepts into better decision-making, including two Policy Papers, “Procedural Fairness: A Key Ingredient In Public Satisfaction” and “Minding The Court: Enhancing the Decision-Making Process,” produced by the American Judges Association (AJA), and the website “Proceduralfairness.org”, created by AJA, the National Center for State Courts, and procedural fairness scholars; and

 

WHEREAS, embracing procedural fairness principles furthers judicial accountability associated with litigants’ perceptions of fair treatment, without reference to the merits of individual cases;

NOW, THEREFORE, BE IT RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators encourage their members to take a leadership role in promoting the use of procedural fairness principles in their court systems; and

BE IT FURTHER RESOLVED that the Conference of Chief Justices and the Conference of State Court Administrators encourage their members to consider implementing the following strategies in their courts to promote procedural fairness:

(1) Measure litigant satisfaction based on, among other factors, procedural fairness, using a measurement instrument such as the National Center for State Courts’ CourTools Access and Fairness measure;

(2) Encourage the integration of research on procedural fairness and effective decision- making processes into judicial education programs;

(3) Identify opportunities for judges to obtain honest feedback and mentoring to build self-awareness and continue to develop as leaders in their courtrooms;

(4) Practice procedural fairness in the treatment of court personnel;

(5) Champion procedural fairness principles in messages to and interactions with the public, the media, and other branches of government; and

(6) Hold judges and court staff accountable for operating courts in which everyone is treated with respect, has the opportunity to be heard, and receives an adequate explanation of court orders.

 

Adopted as proposed by the CCJ/COSCA Access, Fairness and Public Trust Committee at the 2013 Annual Meeting on July 31, 2013.