As court budgets and funding for public defender services are cut (or at least not increased) and given rising caseloads, there are places where seeking some form of payment from the poor for public defender services is happening with some frequency. It is a practice that is not without controversy. Just where does the money come from? If you are found not guilty but spent months in jail waiting for your trial, is this fair? Who gets paid first, the victim who is owed restitution or the defender fund? 

Paying for Your Public Defender

From FIndLaw. :

You should know that in some jurisdictions, a public defender is not necessarily free. States are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Sometimes defendants have to pay the fees even if they’re acquitted of the charges.

The Uneven Bulwark: How (and Why) Criminal Jury Trial Rates Vary by State

T. Ward Frampton

University of California, Berkeley – School of Law

2012

California Law Review, Vol. 100, No. 1, 2012

Abstract:     
Forty-five years since the U.S. Supreme Court first recognized the right to a criminal jury trial as “fundamental to the American scheme of justice,” jury trial rates (the prevalence of jury trials relative to bench trials) in American criminal adjudication actually vary dramatically by state. A sizable body of scholarship has generally explored the decrease in criminal trials, but this “Vanishing Trial” literature has largely ignored the notable state-by-state disparities in jury trial rates. After reviewing the historic role the Framers expected the jury trial to play in criminal adjudication, this Comment analyzes the existing data on jury trial rates and identifies surprising disparities from one jurisdiction to the next. The Comment then explores various state practices that may be sources of these variations, often pushing the jury trial to the margins of criminal adjudication and disadvantaging those accused of wrongdoing. The Comment concludes by contrasting the Supreme Court’s recent jurisprudence celebrating the centrality of the jury trial with the lived experiences of criminal defendants, and argues for a more substantive understanding of the Sixth Amendment’s trial by jury guarantee.

Number of Pages in PDF File: 40

Accepted Paper Series

Garrett Epps is  a former reporter for The Washington Post,  a novelist and legal scholar.  He teaches courses in constitutional law and creative writing for law students at the University of Baltimore.

 His new book is Wrong and Dangerous: Ten Right Wing Myths About Our Constitution. He has a short but provocative commentary in the Atlantic about the influence of Justice Scalia which begins with, “The Reagan appointee has been perhaps the most significant influence on law in the past three decades. But the start of the new Term looks likely to mark the end of the Scalia Court and the beginning of the Roberts.” Sound pretty dry? Well the article does go on to say, “But for me the winning words were: “That’s enough frivolity for a while,” uttered by the Chief Justice to Scalia during the final day of the health-care marathon. Scalia had interrupted argument of this generation’s most important case to begin riffing on an old Jack Benny radio routine. The Chief Justice was not amused. He shot a venomous look at Scalia and told him, in barely civil words, to shut up. That same look flickered across Roberts’s face on June 25, when Scalia embarrassed the Court with his rant against Obama during the opinions on the Arizona case. (That monologue, I think, may have been the inspiration for Clint Eastwood’s speech in Tampa.)”

 For the complete article :one.http://www.theatlantic.com/national/archive/2012/09/is-antonin-scalia-still-relevant/262137/

According to data compiled from The American Bench, women hold 27.5 percent of state judgeships in 2012—a slight increase from 26.8 percent in 2011. At the same time, the percentage of women on the federal bench declined 0.1 percent to 24.1 percent. Representation of women on federal and state courts is highest in the Northeast (30.4 percent) and lowest in the Midwest (24.6 percent). In Indiana sixteen of the 22 applicants for a supreme court vacancy were women. Indiana is one of three states without a woman on its high court. This will be Governor Daniels’ third appointment to the five-member court. From this pool of 22 applicants, the judicial nominating commission identified ten semi-finalists for the vacancy, including six women and four men. The commission will narrow the list to three finalists in early August.

William W. Berry III (University of Mississippi School of Law) has posted The Mandatory Meaning of Miller on SSRN. Here is the abstract:

In June 2012, the United States Supreme Court held in Miller v. Alabama that the Eighth Amendment’s ban on ‘cruel and unusual’ punishment prohibited the imposition of mandatory life-without-parole sentences on juveniles. This case continued the Supreme Court’s slow but steady expansion of the scope of the Eighth Amendment over the past decade. 

In light of the Court’s decision in Miller to preclude mandatory sentences of life without parole for juveniles, this article explores the possibility of further expansion of the Eighth Amendment to proscribe other kinds of mandatory sentences. Applying the approach of the Court in Woodson and Miller to other contexts provides, at the very least, a basis to remedy some of the injustices created by mandatory sentences. 

Continue reading “Berry on Mandatory Sentences after Miller”

Engel on Applying the Fifth Amendment to Passwords

J. Adam Engel has posted Rethinking the Application of the Fifth Amendment to Passwords and Encryption in the Age of Cloud Computing (Whittier Law Review, Vol. 33, No. 3, 2012) on SSRN. Here is the abstract:

The Fifth Amendment privilege against self-incrimination protects a person from being compelled to provide a testimonial communication that is incriminating in nature. In a number of cases starting to wind through state and federal courts, the government has sought to compel suspects and defendants to provide passwords and encryption keys despite claims of Fifth Amendment Privilege by witnesses and suspects. For example, in a Colorado case, the government sought to compel the defendant to enter a password into a laptop or otherwise provide access to encrypted data stored on her computer. The government apparently believed that the encrypted computer files contained evidence of fraudulent real estate transactions.

Continue reading “Engel on Applying the Fifth Amendment to Passwords”

Whether this was successful, I am not sure, but it sure is a unique 5 page brief. http://www.abajournal.com/files/AppleAmicusBrief.pdf

Call for papers on family interactions with the criminal justice system

The Journal of Gender, Race & Justice is holding its annual symposium on March 7-8, 2013. Titled Modern Families: Changing Families, Challenging Laws, the symposium focuses on three specific areas within family law: families of racial minorities, LGBT families, and family interactions with the criminal justice system. The Journal would like to invite legal authors of all perspectives to submit proposals for articles for the symposium to fill Volume 17 of our publication. Articles or propsoal submissions, along with a curriculum vitae, should be sent to Iain Johnson at iain-johnson@uiowa.edu. The submission deadline is November 30, 2012.