A Conservative Case for Prison Reform

By RICHARD A. VIGUERIE

MANASSAS, Va. — CONSERVATIVES should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs. Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy. Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners. Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

For the complete commentary see the New York Times: http://nyti.ms/14NAe15

Transcending the Criminal Law’s ‘One Size Fits All’ Response to Domestic Violence

Hannah Brenner

Michigan State University – College of Law

2013

William & Mary Journal of Women and the Law, Vol. 19, 2013

MSU Legal Studies Research Paper No. 11-03

Abstract:

Domestic violence is no longer a private matter confined within the four walls of the home. The shift from private to public is connected with marked progress within the legal system, which strives to protect victims and hold batterers accountable through a myriad of specific responses that have ranged from attitudinal and logistical shifts from law enforcement to increased attention within legal education to a general acknowledgment of the impact of domestic violence on individual victims, children, families, and the broader community to the passage of federal and state legislation.

The state legislative landscape has historically centered around a very narrow subset of laws that mandate or encourage arrest and criminalize domestic violence-related acts. Research demonstrates both compelling support for and against the effectiveness of these laws, making it difficult to draw meaningful conclusions about their actual impact. Scholars and advocates have also expressed diverging opinions about the desirability of this response.

This article takes a different approach to exploring the criminalization of domestic violence by transcending the pervasive either/or dichotomy that dominates the field. It builds on my previous body of work that examines how mandatory arrest laws are often incorrectly categorized into a uniform classification scheme, leading to a complexity of problems like different research outcomes. Despite the actual variance in these laws, however, there remains a problematic uniformity that is characteristic of the current approach: many of the existing laws, policies, and practices tend to impose a “one size fits all” solution to a problem that is incredibly complex. The current singular approach might be necessary as a matter of practicality and public welfare, but it does not adequately respond to all of a particular victim’s needs or to the needs of all victims. Many never become engaged with the criminal justice system in the first place. Others, who do, still face tremendous barriers that compromise their safety and/or impede their ability to leave their abuser. Reconciling these competing ideas has proved challenging.

Through analysis of recent state-based legislative and policy innovations focused on two areas that are particularly relevant for victims — housing and victim safety as it relates to improving the effectiveness of orders of protection — this article proposes a new conceptual framework. Using these victim-centered state laws and policies as a starting place, this article illustrates how the existence of a myriad of strategies and innovations can ultimately transcend the limitations inherent in the existing one size fits all response of the criminal law.

Did you ever notice that really good leaders, effective leaders, those who have a long-term, positive impact on others most often have a happy and joyful attitude towards life while getting things done?  And yet these same leaders usually have the greatest burdens and are responsible for the most significant problems.  I don’t mean they are never sad or angry or frustrated, but I do mean that they seem to save those emotions for the really big issues, while they rise above the small daily inconveniences.  Assertive leaders stay positive while delivering results.  We lead at a time when lots of organizations particular court organizations are conflicted. The adage about judicial leadership is like herding cats….is occasionally right but more right when you acknowledge that some of the cats are not cute kittens but feral cats.  The key then to being effective is to remain positive!

How to fairly finance courts throughout a state is a challenge for all states and a big challenge for California.  The judiciary has “substantially complied” with the mandates of the 16-year-old Trial Court Funding Act, according to a 250-page report by a committee appointed by the governor and chief justice.

But equality in trial court funding is still “in need of improvement,” the Trial Court Funding Workgroup concluded, effectively laying the groundwork for passage next week of a controversial plan to revise how money is divvied up by the courts.

“The workgroup finds that funding has not been allocated based on workload fluctuations or in a manner designed to promote equal access to the courts statewide, implementation of statewide policies, or implementation of efficiencies and cost-saving measures to support access to justice,” the report said.

The Judicial Council should “adopt a new methodology for allocating funding appropriated for support of trial court operations, to be implemented” in July, the group said.

When Gideon v. Wainwright was decided 50 years ago most observers thought that the issue of representation for the poor in criminal cases was settled: the poor got a lawyer. Regrettably far too many public defender and appointed counsel systems are so underfunded that the caseloads are simply unacceptable. Obtaining adequate funding and maintaining reasonable caseloads is the major challenge facing many courts throughout the nation. One “solution” is to acknowledge that indigent defense counsel can refuse appointment when the caseload becomes constitutionally intolerable. Recently the Florida Supreme Court ruled that the Miami-Dade County public defender’s office could withdraw from a large chunk of felony cases because of excessive workloads. Describing what it called a “damning indictment” of representation for poor criminal defendants, the court divided 5-2 on the issue, with Justice Peggy Quince writing a majority opinion (PDF) that said attorneys who represent defendants in third-degree felonies often have as many as 50 cases set for trial in a week.

“Clients who are not in custody are essentially unrepresented for long periods between arraignment and trial,’’ Quince wrote in the opinion.”Attorneys are routinely unable to interview clients, conduct investigations, take depositions, prepare mitigation, or counsel clients about pleas offered at arraignment. Instead, the office engages in ’triage’ with the clients who are in custody or who face the most serious charges getting priority to the detriment of the other clients.” A dissenting opinion asserted the Miami-Dade public defender’s office had not proved harm to defendants.

Governing Magazine: Performance Based Assessment for Judges

Governing Magazine has an article exploring the possibility of changing the culture in the judiciary towards a system that includes “performance-based innovation.” The article states, “Excellence in organizations, particularly in the public sector, is achieved through creating the conditions for innovation: desired outcomes are clearly specified, performance is measured regularly so that there is an objective standard against which to gauge success, and a strong organizational culture encourages learning and experimentation. These are not the conditions that prevail in most of our courts: instead, roles, not outcomes, are defined; performance is measured merely by adherence to procedure; and the culture is focused on assigning credit or blame.” The piece continues, “When viewed through the lens of organizational science, courts boggle the mind. External sources (the voters or elected officials) select the ‘partners of the firm’ (the judges) with little or no input from the court or even any understanding of what needs a court may have. Judges’ vision of sharing power with each other is often no more than an office-sharing arrangement, as if they were solo-practitioner lawyers whose practice specialty is being a judge. The result is that it is a challenge for courts to establish and maintain a sense of unity, let alone an organizational culture of innovation.”

Source: Babak Armajani and Kevin Burke, Creating the Courts Americans Want, Governing Magazine, May 22, 2013.

Samuel R. Wiseman

Florida State University – College of Law

March 19, 2013

Forthcoming, to be published by The Yale Law Journal Company, Incorporated in The Yale Law Journal

Abstract:

The typical academic concern with respect to advancing criminal justice technology, be it wiretaps or surveillance drones, is that there will be too much of it. In the context of pretrial justice, however, we have the opposite problem. Although detention for dangerousness has received far more attention in recent years, a significant number of non-dangerous but impecunious defendants are jailed to ensure their presence at trial due to continued, widespread reliance on a money bail system. Increasingly sophisticated forms of electronic monitoring have the potential to mitigate flight risk at least as well as money bail at a cost to defendants and the state lower than money bail’s necessary concomitant, pretrial detention. But the long, mostly sad history of bail reform efforts suggests that, unlike wiretaps, electronic monitoring in lieu of detention will not be adopted through the political process in many jurisdictions.

This paper develops two related claims. First, in the near term, electronic monitoring will present a superior alternative to money bail for addressing flight risk. In contrast to previous proposals for reducing pretrial detention rates, including increased use of personal recognizance bonds and varying forms of supervision by pretrial services agencies, electronic monitoring has the potential to both reduce fugitive rates (by allowing the defendant to be easily located) and government expenditures (by reducing the number of defendants detained at state expense). Moreover, the usual objections to government monitoring – the intrusion on individual privacy and the threat of surveillance extending to new segments of society – have relatively little force in the pretrial context, where detention currently all but extinguishes privacy interests, and the number of criminal defendants is largely independent of the means of preventing flight.

Secondly, despite the potential benefits to defendants and governments, electronic monitoring is not likely to be adopted by legislative or executive action. The commercial bail industry has a significant financial incentive to maintain the status quo, and it has repeatedly blunted previous reform efforts. Thus, although there is a lively debate over the institutions best suited to respond to advances in investigative technology, here the best prospect for meaningful change is clearly the judiciary generally, and the Eighth Amendment’s prohibition of Excessive Bail more specifically. To achieve this goal, however, the courts will, for the first time, have to develop a meaningful jurisprudence of excessiveness to test the fit between the government’s pretrial goals and the means employed to accomplish them. The paper begins this inquiry, arguing that the text, purpose, and history of the Amendment all support the requirement that the chosen means be, at minimum, not substantially more burdensome than necessary. Under this standard, a money bail system that leads to widespread detention without a corresponding increase in performance or savings cannot survive in the face of a less restrictive technological alternative.

Plea Bargains that Waive Claims of Ineffective Assistance – Waiving Padilla and Frye

Nancy J. King

Vanderbilt University – Law School

May 2, 2013

Duquesne University Law Review, Vol. 51, 2013

Vanderbilt Public Law Research Paper No. 13-25

Abstract:

This essay addresses the growing use and enforcement of terms in plea agreements by which a defendant waives his right to attack his plea agreement on the basis of constitutionally deficient representation during negotiations leading to the agreement. Contrary to other commentators and some courts, I argue that the Constitution does not forbid the enforcement of such a waiver, and review steps a judge may have to take in order to ensure that a defendant’s express waiver of the right to effective representation during plea bargaining is knowing and voluntary. I also argue that although the Constitution does not prohibit judges from enforcing broad waivers of the right to attack a plea-based conviction on the basis of poor representation during bargaining, routine adoption and enforcement of such terms would be unwise, and suggest several strategies to avoid this result.

To read the entire article see:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2259694

Professor Ty Alper who teaches at the University of California, Berkeley has an interesting new article on ineffective assistance of counsel in the Washington and Lee Law Review. This is the abstract:

The Supreme Court’s decisions in Martinez v. Ryan and Maples v. Thomas have been hailed as evidence of the Court’s increasing willingness to grant some relevance to the competence of postconviction counsel. While this may be true, for the vast majority of defendants convicted of noncapital crimes, the rulings provide little in the way of immediate assistance because most such prisoners have no federal habeas counsel and therefore no means to take advantage of the procedural protections Martinez and Maples provide. In this Article, I argue that, in these cases, the Court has taken a step closer to recognizing not necessarily a broad right to postconviction counsel but rather a narrower yet critical right to raise a claim of ineffective assistance of trial counsel in at least one forum. At least with respect to claims of ineffective assistance of trial counsel, the Court appears to be moving toward recognition that the right to raise such claims is as important as the right to raise record-based claims typically brought by constitutionally required appellate counsel. My view is that this development is both far more significant than any signals the Court has sent with respect to the provision of postconviction counsel generally, and more likely to eventually vindicate the bedrock principle embodied in Gideon v. Wainwright.

The article can be found here.

An Ontario judge has ruled that a woman must remove her face-covering veil to testify against the men she is accusing of sexual assault.

The judge says the woman’s niqab “masks her demeanor and blocks both effective cross-examination by counsel for the accused and assessment of her credibility by the trier of fact.

The 37-year-old woman, known only as N.S., alleges two men sexually assaulted her over five years, starting when she was six years old.

The question of whether she should be allowed to testify in the case while wearing her niqab went all the way up to the Supreme Court of Canada, which issued a split decision but set out a test for judges to decide in individual cases.

At the oral argument before the Supreme Court there was no mistaking the impatience  of  Justice Morris Fish’s voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

“Some blind lawyers that I know,” responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab.
The Supreme Court Justices clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

“Well, how about seeing lawyers?” Judge Fish insisted. “Your response quite explicitly and dramatically answers the question.”

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.  The opinion of the Canadian Supreme Court can be found here.