New Justice Department Report on Victims

The US Department of Justice “unveiled a plan calling for sweeping changes to advance crime victims’ rights and services in the 21st century.”  The press release said:

Developed by the Office of Justice Programs (OJP) and Office for Victims of Crime (OVC), Vision 21: Transforming Victim Services Final Report [available via this webpage], is the first collective examination in 15 years of current U.S. practices, funding and outreach in the crime victims’ field.

“Today’s announcement marks the latest step forward in the Department’s ongoing work to protect and empower those who have been victimized,” said Attorney General Eric Holder. “Through Vision 21, we’ve gained an unprecedented understanding of the current state of victim services from coast to coast. And we’ve developed groundbreaking strategies for responding to urgent needs, combating violence and abuse, and providing critical support to crime victims.”

Vision 21 documents the need to better understand who is affected by crime, how they are affected, how they seek help, who reports victimization and the reasons why some victims do not.  The report calls for continuous, rather than episodic, strategic planning in the victim assistance field and for statutory, policy and programmatic flexibility to address enduring and emerging crime victim issues.  It also calls for the development of evidence-based knowledge founded on data collection and analysis of victimization and emerging victimization trends, services, behaviors and enforcement efforts.

The full 60-page “Final Report” (available here) discusses  many issues relating to crime victims.

How Courts Should deal With Plea Bargaining & Effective Assistance of Counsel

Lafler and Frye: A New Constitutional Standard for Negotiation

Rishi Batra

Texas Tech University School of Law; Whittier Law School; Ohio State University (OSU) – Michael E. Moritz College of Law

March 20, 2013

14 Cardozo Journal of Conflict Resolution 309 (2013)

 

Abstract:

In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.” This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.

The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains. Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain. For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance. It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.

For the full article see: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2236455

The plea process

Monitoring the Plea Process

Susan R. Klein

University of Texas School of Law

 

May 17, 2013

Duquesne University Law Review, 2013, Forthcoming

 

Abstract:

Gideon versus Wainwright heralded a new age in American criminal prosecutions. Indigent blacks in the South would have the same opportunity to fight felony criminal charges and receive the same sentencing discounts of favorable guilty pleas as rich white northerners, and the innocent would be accurately separated by adversarial testing from the guilty. Yet fifty years later, indigent defendants, (who comprise 80% of total defendants), often get substandard counsel, and innocent individuals are rarely, but sometimes convicted or plead guilty. Some of the blame falls squarely on the Court for settling on the contours of our current two-pronged test in Strickland versus Washington, that determines when counsel is ineffective and the defendant is accordingly prejudiced. Some blame falls on legislators for failing to adequately fund defense counsel. Our criminal justice evolved from an adversarial system to what Judge Lynch calls, “a defacto administrative regime”. The criminal justice system is the plea bargaining system.

 

In this essay, the author posits that last term’s Lafler versus Cooper and Missouri versus Frye gave us another chance to both police equality of sentences for the guilty, and to mandate better investigation of the underlying offense to ferret out the innocent. Information and resource disparity skews the system. The defense bar cannot buck a system stacked so heavily against them. Large-scale structural reform such as legislation or proper funding for defense is equally unlikely. Plea bargaining has failed.

 

Professor Klein suggests that our most politically feasible hope for reform is for federal and state judges to amend the rules of criminal procedure in order to monitor and record the discovery and plea negotiation process via nonwaivable conferences. A second proposal is for the Department of Justice and local District Attorneys’ Offices to implement internal guidelines to regulate the timing and content of plea negotiations and discovery procedures. Though the Court imposed its new Sixth Amendment duties on the defense bar, it is prosecutors who have the incentive to ensure the finality of guilty pleas and to stave off potentially harsher legislative or judicial action in this area.

The full paper is available here.

Excerpts from Robert Kennedy’s Day of Affirmation Address

Excerpts from Robert Kennedy’s Day of Affirmation Address at Cape Town University – Robert F. Kennedy, June 6, 1966:

The first element of this individual liberty is the freedom of speech: the right to express and communicate ideas, to set oneself apart from the dumb beasts of field and forest; the right to recall governments to their duties and to their obligations; above all, the right to affirm one’s membership and allegiance to the body politic — to society — to the men with whom we share our land, our heritage, and our children’s future.

Hand in hand with freedom of speech goes the power to be heard, to share in the decisions of government which shape men’s lives. Everything that makes man’s life worthwhile — family, work, education, a place to rear one’s children and a place to rest one’s head — all this depends on the decisions of government; all can be swept away by a government which does not heed the demands of its people, and I mean all of its people. Therefore, the essential humanity of man can be protected and preserved only where government must answer — not just to the wealthy, not just to those of a particular religion, not just to those of a particular race, but to all of the people.

And even government by the consent of the governed, as in our own Constitution, must be limited in its power to act against its people, so that there may be no interference with the right to worship, but also no interference with the security of the home; no arbitrary imposition of pains or penalties on an ordinary citizen by officials high or low; no restriction on the freedom of men to seek education, or to seek work or opportunity of any kind, so that each man may become all that he is capable of becoming.

These — These are the sacred rights of Western society. These were the essential differences between us and Nazi Germany, as they were between Athens and Persia… Our answer is the world’s hope: It is to rely on youth. The cruelties and the obstacles of this swiftly changing planet will not yield to obsolete dogmas and outworn slogans. It cannot be moved by those who cling to a present which is already dying, who prefer the illusion of security to the excitement and danger which comes with even the most peaceful progress.

This world demands the qualities of youth; not a time of life but a state of mind, a temper of the will, a quality of the imagination, a predominance of courage over timidity, of the appetite for adventure over the life of ease — a man like the Chancellor of this University.

It is a revolutionary world that we all live in, and thus, as I have said in Latin America and in Asia and in Europe and in my own country, the United States, it is the young people who must take the lead. Thus, you, and your young compatriots everywhere, have had thrust upon you a greater burden of responsibility than any generation that has ever lived.

“There is,” said an Italian philosopher, “nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success than to take the lead in the — in the introduction of a new order of things.” Yet this is the measure of the task of your generation, and the road is strewn with many dangers.

First, is the danger of futility: the belief there is nothing one man or one woman can do against the enormous array of the world’s ills — against misery, against ignorance, or injustice and violence. Yet many of the world’s great movements, of thought and action, have flowed from the work of a single man. A young monk began the Protestant Reformation, a young general extended an empire from Macedonia to the borders of the earth, and a young woman reclaimed the territory of France. It was a young Italian explorer who discovered the New World, and 32 year-old Thomas Jefferson who proclaimed that “all men are created equal.”

Are You Liable For Texting?

The American Bar Association Journal reports that, “It’s common knowledge that texting and driving is a bad idea and, in a number of jurisdictions, illegal. New Jersey is one of them.

But what about sending a text to someone you know is behind the wheel? In addition to moral responsibility, could there be any civil liability for doing so?

That is the question currently being considered by a New Jersey appeals court, after a trial judge in Morristown dismissed a claim brought by two injured motorcyclists against a teenager who texted a male friend she had been dating as he was driving in 2009. Reportedly distracted by a message from Shannon Colonna, then 17, the driver, Kyle Best, crashed his pickup into David and Linda Kubert, who were on their motorcycle in Mine Hill, the Morristown Daily Record reports.”

For the full story see: http://www.dailyrecord.com/article/20130506/NJNEWS/305060023/Is-texter-liable-person-receiving-text-crashes-?gcheck=1&nclick_check=1

More On Campaign Contributions And Judical Elections

“Justice at Risk: An Empirical Analysis of Campaign Contributions and Judicial Decisions.” The American Constitution Society issued this report (PDF), written by law professor Joanna Shepherd a law professor at Emory University. A discussion of the report is featured in the Washington Post Wonkblog.  The study, sponsored by the American Constitution Society and designed by experienced independent empirical researchers, comes in response to growing concern among the public—and judges themselves—about increased politicization of judicial elections.

Justice at Risk argues that:

•             There is a significant relationship between business group contributions to state Supreme Court justices and the voting of those justices in cases involving business matters.

•             The more campaign contributions from business interests justices receive, the more likely they are to vote for business litigants appearing before them in court.

•             A justice who receives half of his or her contributions from business groups would be expected to vote in favor of business interests almost two-thirds of the time.

•             The empirical relationship between business contributions and justices’ voting for business interests exists only in partisan and nonpartisan systems; there is no statistically significant relationship between money and voting in retention election systems.

•             There is a stronger relationship between business contributions and justices’ voting among justices affiliated with the Democratic Party than among justices affiliated with the Republican Party.

In the 15 years since the last significant collection of data on judicial elections was assembled, fundraising for judicial campaigns has skyrocketed, more than doubling, from $83.3 million in 1990–1999 to $206.9 million in 2000–2009.

Illlinois Bar Study Looks At Court Funding

An Illinois State Bar Association (ISBA) special committee has issued a 64-page report that addresses the serious funding crisis facing Illinois courts.

“The long-term goal should be more than just alleviating the funding crisis,” said ISBA President John E. Thies, of Urbana. “Restoring courts to their proper place as a co-equal branch of government will return to the citizens of Illinois far more than the amount invested.”

In June 2012, Thies appointed a Special Committee on Fair and Impartial Courts, co-chaired by Illinois Circuit Judge Patricia P. Golden (Ret.), of West Dundee, and Illinois Appellate Court Justice James M. Wexstten, of Mt. Vernon. Their report and recommendations, which were accepted on May 17, at a meeting of the ISBA Board of Governors in Galena, will be voted on by the ISBA’s policy-making Assembly when it convenes on June 22.

According to the report, “The ability of the courts to deliver fair, timely and professional service has been degraded over the last dozen years by three trends: unpredictable budgets, cuts in real allocations, and disproportionate cuts. Funding cuts have affected all aspects of the judicial process.”

To identify the areas of special concern, the committee surveyed the chief judges of each judicial district in Illinois, as well as practicing lawyers.

Chief Justice Speaks Out About Judicial Elections In Ohio

There are few commentators that are more thoughtful about what is right and wrong about United States Courts than Ohio Chief Justice Maureen O’Connor. She wrote a commentary recently about judicial elections in Ohio that even if you don’t live there is worth reading.  “It would be hard to think of an area of our society that is not affected by judges and the courts. From approving adoptions to settling estates, from marriage licenses to divorce decrees, from traffic tickets to serious violent crime, judges in Ohio handle more than 1 million cases each year, and behind every one of these cases there are real people and families seeking justice.

Thus, there are few matters more important in our democracy than how we select our judges. I believe we can do a better job, and I am inviting Ohioans to join me in this cause.

Make no mistake, we enjoy one of the best systems of justice anywhere in the world. Extraordinarily talented and hard-working people make up the Ohio judiciary, and the work they do every day is remarkable.

But there are three reasons why I believe we can do even better: 1) There are problems with the public’s perceptions of judges and the judicial branch. 2) Voter participation in judicial elections is less than it should be. 3) There is evidence that more can be done to educate and inform the electorate.

The public perception problem arises again and again in poll after poll. A poll by the National Center for State Courts found that 59 percent of Americans believe courts’ decisions are influenced by politics. A recent poll found that the public’s view of the U.S. Supreme Court — viewed as a barometer of the general perception of the judicial branch — has reached an all-time low of 44 percent.

 

Voter participation in judicial races is consistently much less than in other contests.

For example, I researched voter participation in Ohio over the past decade and found that on average one quarter of all voters who come to the polls in statewide elections do not cast a ballot in Ohio Supreme Court contests.

And those voters who do stick around for the judicial races at the back of the ballot often express frustration that they do not have sufficient information on which to base their vote.

A national study recently found that 14.5 percent of voters leaving the booth could not name even one of the judicial candidates on the ballot they just cast.”

 

For the full commentary see:  http://www.news-herald.com/articles/2013/05/27/opinion/nh6962820.txt

New Documentary Features Judge Brian MacKenzie

This new documentary focuses on the work of Oakland County Judge Brian MacKenzie who provides veterans’ with assistance through his court. The statistics are staggering if not downright shameful – the highest suicide levels in the military in ten years, with deaths from suicide outweighing combat deaths by a two-to-one ratio. The first six months of 2012 saw an average of one military suicide each day (154 suicides in the first 155 days).

 

“Addiction is a health issue. If you think of it just as a criminal justice thing, which we’ve done far too long, you end up with a lot of people in prison and you don’t solve their problem. But if you think of it as a health issue, where you make them deal with the thing, then what you get is success,” reported Judge MacKensie. He not only knows these stats by heart, many of them have gone through his courtroom. In this one-hour documentary, Detroit Public TV follows Judge MacKenzie and three veterans’ cases as they work their way in and out of the Veterans Court program to get a handle on their addiction and mental health issues in order to redirect their lives.

Available at: http://www.dptv.org/vets/?cmpgn=slider

Illinois Bar Study Looks At Court Funding

An Illinois State Bar Association (ISBA) special committee has issued a 64-page report that addresses the serious funding crisis facing Illinois courts.

“The long-term goal should be more than just alleviating the funding crisis,” said ISBA President John E. Thies, of Urbana. “Restoring courts to their proper place as a co-equal branch of government will return to the citizens of Illinois far more than the amount invested.”

In June 2012, Thies appointed a Special Committee on Fair and Impartial Courts, co-chaired by Illinois Circuit Judge Patricia P. Golden (Ret.), of West Dundee, and Illinois Appellate Court Justice James M. Wexstten, of Mt. Vernon. Their report and recommendations, which were accepted on May 17, at a meeting of the ISBA Board of Governors in Galena, will be voted on by the ISBA’s policy-making Assembly when it convenes on June 22.

According to the report, “The ability of the courts to deliver fair, timely and professional service has been degraded over the last dozen years by three trends: unpredictable budgets, cuts in real allocations, and disproportionate cuts. Funding cuts have affected all aspects of the judicial process.”

To identify the areas of special concern, the committee surveyed the chief judges of each judicial district in Illinois, as well as practicing lawyers.