As part of an effort to curb rising corrections budgets, the Vermont Senate is contemplating legislation that would require judges to consider the cost of a sentence. Missouri has had that statutory requirement for several years.

Sen. Dick Sears, chairman of the Senate Judiciary Committee, said it would be up to individual judges to decide whether to allow the information to influence their sentencing decisions. But with the annual cost of incarcerating an inmate in Vermont at $45,000, Sears said judges at least ought to be aware of the financial consequences of their decisions.

“I’m not suggesting we shouldn’t lock somebody up for 20 years,” Sears said Tuesday. “But if we do, it’s going to cost us $650,000, in today’s dollars, and we need people in the system to be asking themselves: Is that a good investment?”

Requiring judges to consider the cost of their sentences is the most controversial provision in a bill that seeks broader reforms to the sentencing process. The bill would provide judges information about the average sentences for certain crimes — a measure aimed at remedying the disparity in sentencing across county lines. The bill also would institute a risk assessment for offenders, before sentencing, as a means of helping judges evaluate the merits of various options.

Judges becoming frustrated with with jurors using social media or the Internet is nothing new. But how to deal with the offending juror is not always clear. The American Bar Association Journal has a report of an interesting sentencing approach a Florida Judge used with a juror who violated an instruction not to do independent Internet research about a case. The judge, ” obviously aggravated after he discovered last year that a prospective juror had disobeyed instructions and done Internet research on the defendant in a high-profile murder case, had initially warned the man to expect jail time.

But, after further reflection, Hillsborough Circuit Judge William Fuente has tailored the punishment in the resulting contempt matter to fit the crime, according to the Tampa Bay Times.

Vishnu P. Singh must report for jury duty once a week for three months, Fuente ruled Friday. Singh, who works as an engineer, apologized to the court earlier in the hearing for letting his curiosity get the best of him.

Although Fuente said he believes other jurors and prospective jurors also disobey court orders and Google defendants, he hopes Singh’s sentence will serve as a cautionary tale. “It’s important that this be brought to the public’s attention,” the judge stated.

James J. Brudney

Fordham University School of Law

Lawrence Baum

Ohio State University (OSU) – Department of Political Science

January 2, 2013

Fordham Law Legal Studies Research Paper No. 2195644

 
Abstract:
The Supreme Court’s use of dictionaries, virtually non-existent before 1987, has dramatically increased during the Rehnquist and Roberts Court eras to the point where as many as one-third of statutory decisions invoke dictionary definitions. The increase is linked to the rise of textualism and its intense focus on ordinary meaning. This Article explores the Court’s new dictionary culture in depth from empirical and doctrinal perspectives. Among our findings are (a) while textualist justices are the highest dictionary users, purposivist justices invoke dictionary definitions with comparable frequency; (b) dictionary use is especially heavy in the criminal law area, serving what we describe as a Notice function; (c) dictionary use overall is strikingly ad hoc and subjective. We demonstrate how the Court’s patterns of dictionary usage reflect a casual form of opportunistic conduct: the justices almost always invoke one or at most two dictionaries, they have varied individual brand preferences from which they often depart, they seem to use general and legal dictionaries interchangeably, and they lack a coherent position on citing to editions from the time of statutory enactment versus the time the instant case was filed.

The Article then conducts a detailed doctrinal review, leading to an innovative functional analysis of how the justices use dictionaries: as way stations when dictionary meanings are indeterminate or otherwise unhelpful; as ornaments when definitions are helpful but of marginal weight compared with more traditional resources like the canons, precedent, legislative history, or agency deference; and as barriers that preclude inquiry into or reliance on other contextual resources, especially legislative history and agency guidance. Ornamental opinions (the largest category) typically locate dictionary analysis at the start of the Court’s reasoning, subtly conveying that the lexicographic method should matter more than other interpretive resources. Barrier opinions would have been inconceivable prior to 1987 but now occur with disturbing frequency: they elevate the justices’ reliance on definitions in a radically acontextual manner, ignoring persuasive interpretive evidence from the enactment process and from agency experience.

Finally, the Article analyzes whether the Court’s patterns of inconsistent dictionary usage, and its tendency to cherry-pick definitions that support results reached on other grounds, distinguish dictionaries from high-profile interpretive resources such as canons and legislative history that have been criticized on a similar basis. We contend that dictionaries are different from a normative vantage point, essentially because of (i) how both wings of the Court have promoted them by featuring definitions frequently and prominently in opinions, and (ii) how dictionaries are effectively celebrated as an independently constituted source of objective meaning (unlike the canons as judicial branch creations and legislative history as a congressional product). Yet our findings demonstrate that the image of dictionary usage as heuristic and authoritative is a mirage. This contrast between the exalted status ascribed to dictionary definitions and the highly subjective way the Court uses them in practice reflects insufficient attention to the inherent limitations of dictionaries, limitations that have been identified by other scholars and by some appellate judges. Further, the justices’ subjective dictionary culture is likely to mislead lawyers faced with the responsibility to construct arguments for the justices to review. The Article concludes by offering a three-step plan for the Court to develop a healthier approach to its dictionary habit. You can find the full article at:

Mary Bowman

Seattle University School of Law

December 19, 2012

Abstract:
This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities. To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.

Full Disclosure: Cognitive Science, Informants, and Search Warrant Scrutiny on SSRN

Announcing the Release of “TWIN EXPECTATIONS, Raising the Bar, Raising Expectations, Raising Children!”

Judge Eileen A. Olds

Judge Eileen Olds served with distinction as President of the American Judges Association. For those of you who know her a couple of things standout. Eileen is one of the warmest human beings you will ever meet and if you meet her with her twin sister you will not be able to tell them apart. Twin Expectations tells the story of how a mother’s love and diligence rescued her children from negative influences and fostered the positive. It is also a go-to, how-to hope filled guide for reclaiming what matters most—our children.

In announcing the publication of her book Judge Olds said,

I am so excited to share the good news and this book with you. Today is a very special day because until now, very few even knew that I was writing “TWIN EXPECTATIONS”. It is also special because today, January 30, 2013 would have been my Mom’s 86th birthday! I know that she is beaming with pride and angelically praising me, even now!

Twin Expectations is available at amazon.com, barnesandnoble.com, iuniverse.com and numerous other online retail booksellers as well as in select bookstores including the Barnes and Noble store at MacArthur Mall in Norfolk, VA.

The Supreme Court handed down its first criminal justice rulings of 2013 with a unanimous habeas ruling authored by Justice Thomas in the companion cases of Ryan v. Gonzales and Tibbals v. Carter.  The full opinion is available at this link.

The issue in Missouri v. McNeely is straightforward: Whether a law enforcement officer may obtain a non consensual and warrant less blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream. The transcript in Missouri v. McNeely is here.

Justice Antonin Scalia delivered the opinion for a unanimous Court in Smith v. United States, No. 11-8976. You can access the oral argument via this link.  The Supreme Court has ruled that allocating to the defendant the burden of proving withdrawal does not violate the Due Process Clause. Withdrawal is not a frequently used defense. But the Court’s decision has broader application since it presumably sheds light on any affirmative defense.  Unless an affirmative defense negates an element of the crime, the prosecution has no constitutional duty to overcome the defense beyond a reasonable doubt.

See Dixon v. United States, 548 U. S. 1, 6. Withdrawal does not negate an element of the conspiracy crimes charged here, but instead presupposes that the defendant committed the offense. Withdrawal terminates a defendant’s liability for his co-conspirators’ post withdrawal acts, but he remains guilty of conspiracy.

Withdrawal that occurs beyond the statute-of-limitations period provides a complete defense to prosecution, but does not render the underlying conduct noncriminal. Thus, while union of withdrawal with a statute-of-limitations defense can free a defendant of criminal liability nor does it place upon the prosecution a constitutional responsibility to prove that he did not withdraw.

According to a post on the ABA Journal website, “two ABA committees were finalizing a proposal on judicial disqualification issues relating to spending in judicial election or retention campaigns” but those plans have been put on hold. “They decided to hold off on bringing their resolution to the House in February so that further discussions can be held with other interested entities.” According to the article, they are taking their time to solicit more input, specifically from “the Judicial Division, the Tort Trial and Insurance Practice Section, and the Standing Committee on Judicial Independence.” The post adds, “The issue of judicial disqualification, or recusal, stemming from campaign contributions is not about to go away anytime soon. Some form of judicial election occurs in 37 states. And if initial findings on spending in campaigns at the state level in the November elections is any indication, the issue is likely to intensify.” Right now the proposed change seems minor, but some argue that it is a stronger proposal than it seems, “The proposed new language would apply Rule 2.11(A)(4) to contributions that are made both to support a judge’s campaign and those in opposition to the judge.…The problem is that the new language puts the onus on judges to figure out not only where their financial support came from in an election campaign, but to identify the sources of money being spent in opposition to them…”

A New York man arrested for disorderly conduct after giving the middle-finger salute to a police officer has won reinstatement of his civil rights lawsuit in a decision by the Second Circuit Court of Appeals.

In May 2006, John Swartz was a passenger in a car driven  in St. Johnsville, N.Y. At an intersection, Mr. Swartz  saw a police car using a radar device to catch speeders and flipped off the police to express displeasure at the speed trap.

Officer Richard Insogna took offense at the gesture, pulled the car over and asked for the driver’s  license and registration.  When Mr. Swartz told the driver not to comply, Officer Insogna allegedly said: “Shut your mouth, your ass is in enough trouble.”

Swartz got out of the vehicle and walked toward the officer allegedly to explain his actions. Officer Patrick Collins who was with Officer Insogna then said: “That does it, you’re under arrest.”

He charged him with disorderly conduct; the charges were later dropped. The Court said, ” The nearly universal recognition that this gesture is an insult deprives such an interpretation of reasonableness. This ancient gesture of insult is not the basis for a reasonable suspicion of a traffic violation or impending criminal activity. Surely no passenger planning some wrongful conduct toward another occupant of an automobile would call attention to himself by giving the finger to a police officer. And if there might be an automobile passenger somewhere who will give the finger to a police officer as an ill-advised signal for help, it is far more consistent with all citizens’ protection against improper police apprehension to leave that highly unlikely signal without a response than to lend judicial approval to the stopping of every vehicle from which a passenger makes that gesture.” The full opinion can be found at: Swartz v. Insogna.. For those who are really interested in the middle finger as a topic there is an interesting law review article by Professor Ira Robbins. The abstract is as follows:

The middle finger is one of the most commonly used insulting gestures in the United States. The finger, which is used to convey a wide range of emotions, is visible on streets and highways, in schools, shopping malls, and sporting events, in courts and execution chambers, in advertisements and on magazine covers, and even on the hallowed floor of the United States Senate. Despite its ubiquity, however, as a number of recent cases demonstrate, those who use the middle finger in public run the risk of being stopped, arrested, prosecuted, fined, and even incarcerated under disorderly conduct or breach of peace statutes and ordinances.

This article argues that, although most convictions are ultimately overturned on appeal, the pursuit of criminal sanctions for use of the middle finger infringes on First Amendment rights, violates fundamental principles of criminal justice, wastes valuable judicial resources, and defies good sense. Indeed, the Supreme Court has consistently held that speech may not be prohibited simply because some may find it offensive. Criminal law generally aims to protect persons, property, or the state from serious harm, but use of the middle finger simply does not raise these concerns.” Click to see the full article.