Because the American Judges Association has so many limited jurisdiction judges, there may well be heightened interest in an en banc Seventh Circuit decision which reinstated a lawsuit alleging that a parking ticket issued by Village of Palatine, Illinois contained too much information and thus violated the federal Driver’s Privacy Protection Act: You can access the ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
|
Few things perplex and scare communities and judges as much as what to do with sex offenders. The destruction they inflict on victims is profound. Yet many times they themselves are the product of abuse as a child themselves, so thoughtful approaches to sentencing are critical. A recent paper explores how best to prevent sex offender recidivism through therapeutic approaches. the full paper can be found at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2116424.
New York Law School
New York Law School
2012
NYLS Legal Studies Research Paper No. 07/2012 #2
Abstract:
The public’s panic about the fear of recidivism if adjudicated sex offenders are ever to be released to the community has not subsided, despite the growing amount of information and statistically-reliable data signifying a generally low risk of re-offense. The established case law upholding sex offender civil commitment and containment statutes has rejected challenges of unconstitutionality, and continues to be dominated by punitive undertones. We have come to learn that the tools used to assess offenders for risk and civil commitment still have indeterminate accuracy, and that the availability of meaningful treatment for this population remains uncertain in its availability and debatable as to its effectiveness. Yet, society continues to clamor for legislation confining this cohort of offenders for “treatment,” and, ostensibly, protection of the community, and legislatures respond quickly to these calls. This “reform legislation” often includes strict and demeaning post-release restrictions that track offenders and curb their integration into society. These “reforms” continue to show no benefit either to the public or to the individual offender. The absence of meaningful and effective treatment during confinement, combined with inhumane conditions upon release, make it far less likely that this cohort of individuals will ever become productive members of society. Only through therapeutic jurisprudence, a focus on rehabilitation, and a dedication to authentically treating individuals who have committed sexual offenses with humanity, will it be possible to reduce recidivism and foster successful community reintegration.
This article takes a new approach to these issues. It examines sex offender laws, past and present, looks at this area of sex offender commitment and containment through a therapeutic jurisprudence lens, and suggests basic policy changes that would optimally and constitutionally minimize re-offense rates, while upholding and protecting human rights of all citizens. It highlights the failure of community containment laws and ordinances by focusing on (1) the myths/perceptions that have arisen about sex offenders, and how society incorporates those myths into legislation, (2) the lack of rehabilitation offered to incarcerated or civilly-committed offenders, resulting in inadequate re-entry preparation, (3) the anti-therapeutic and inhumane effect of the laws and ordinances created to restrict sex offenders in the community, and (4) the reluctance and resistance of courts to incorporate therapeutic jurisprudence in seeking to remediate this set of circumstances. It concludes by offering some modest suggestions, based on the adoption of a therapeutic jurisprudence model of analysis.
Professor Orin Kerr recently had a very interesting short commentary regarding GPS devices in the Volokh Conspiracy. http://www.volokh.com/ He wrote,
In a recent district court case, United States v. Ortiz (E.D. Pa. July 20, 2012), the court rejected the government’s argument that the automobile exception permits placing a GPS device on a car with probable cause. According to the court, the automobile exception only applies to justify a search inside the car based on probable cause to believe there is evidence inside the car. That can’t apply to allow a warrantless installation of a GPS device, the court ruled. Placing a GPS device on the exterior car doesn’t intrude into the car and can’t collect evidence inside, so the automobile exception can’t apply.
Assume the Ortiz decision is right, and that placing a GPS device on a car requires a warrant. Here’s my question: How should judges draft the warrant to comply with the Fourth Amendment? The Fourth Amendment states that no warrants shall issue without probable cause, and it demands that that warrants must “particularly describ[e] the place to be searched, and the persons or things to be seized.” How should a judge make sure these three requirements are satisfied? Let’s take each of the three issues in turn.
First, what is probable cause in this setting? In the case of a warrant for evidence, the relevant kind of probable cause is probable cause that evidence exists inside the place to be searched that will be collected by the search. But if the installation of a GPS device does not obtain evidence in the car, then presumably this standard doesn’t apply. My question is, what replaces it? Is it probable cause to believe that the driver has engaged in a crime? Probable cause to believe that the location of the car will itself be evidence? Probable cause of something else?
Second, what is the “place” that is searched? Is it the exterior surface of the car? The car generally? The location of the car when the GPS is installed? The location of the car over the course of the time it is installed, wherever that may be?
Third, what is the “thing” to be seized by the warrant? The GPS device doesn’t enter the car to take anything, which according to Ortiz disables the automobile exception. So what exactly does the installation of the device “seize”? Is it information about the location of the car, whatever that may be? Something else? And finally, if you think that information about the location of the car is either the place to be searched or the thing to be seized, how do you describe that with particularity?
For the third consecutive year, the Conference of Court Public Information Officers has conducted a nationwide survey to empirically measure the perceptions of judges and court officials toward new media and the ways that courts are responding to the new pervasive reality of Facebook, Twitter, YouTube and the hyper-connected culture they have brought. The survey was conducted once again this year in partnership with the National Center for State Courts and the E.W. Scripps School of Journalism at Ohio University.
The report has several major conclusions:
For the full report see:
http://ccpio.org/wp-content/uploads/2012/08/CCOIO-2012-New-Media-ReportFINAL.pdf
Stop attacking N.Y. judges
JONATHAN LIPPMAN
Tuesday, July 17, 2012
In recent weeks, however, the passions aroused on both sides of the stop-and-frisk debate have threatened to boil over. In the aftermath of two court decisions that found that the police had violated suspects’ constitutional rights against unreasonable searches and seizures, the judges who participated in these decisions have been subjected to a variety of personal accusations, including linking their rulings to a recent spike in violent crime in the city.
F or the past year or so, there has been a spirited public debate about the New York City Police Department’s “stop-and-frisk” policy. By and large, this is the sign of a healthy democracy. Getting the balance right between protecting public safety and preserving civil liberties is no simple matter, and reasonable people can disagree about where to draw the line. Indeed, vetting these kinds of policy disagreements in an open fashion is part of what makes this country great.
These judges are hardly the first to be vilified for their judicial determinations. While commentators and public officials are free to draw their own conclusions as to the wisdom of court rulings, I cannot comment on the legal issues in cases that may be appealed to the Court of Appeals, where I preside.
As the head of the judicial branch of government in New York, however, I do want to discuss why it is so important that the judiciary not be subject to public scorn and derision for simply doing its job and meeting its constitutional responsibilities.
In the current heated environment, it can be hard to find common ground between Mayor Bloomberg, Police Commissioner Raymond Kelly and critics of the NYPD’s stop-and-frisk procedures. Both sides would surely agree that in some cases police officers conduct stops and frisks that are questionable. Judges are often called upon to evaluate the legality of the police action in these cases.
Making these decisions is not easy. Legal standards are frequently expressed in the most general terms, leaving judges to fill in the details. It would be difficult enough to apply these legal standards if everyone agreed on the facts in each dispute, but of course this is rarely the case. In a typical street encounter between a police officer and an individual, what happened is hotly contested.
The article was printed in the New York Daily News and can be found at:
http://www.nydailynews.com/opinion/stop-attacking-n-y-judges-article-1.1115540
When a trial judge has a record that is devoid of the facts you want, what about just going online to find what you need for your order? Most judges would say that type of “judicial notice” is not usually permissible. But a story recently in the Washington Post sheds a slightly different light on the practice of “just google for what you need.” The story begins,” Justice Antonin Scalia’s dissent from the Supreme Court’s decision to strike down parts of Arizona’s tough anti-illegal-immigrant law outraged” more than a few liberals, not necessarily about the words that he wrote, but the “facts” that he found.
“As part of his argument, that the decision imposed on the sovereignty of the states, Scalia reached outside the briefs and the oral arguments to mention President Obama’s recent decision to allow some illegal immigrants who were brought here as children to remain in the country. ” Supreme Court justices have always looked outside the briefs to find facts, but the internet is making it easier.
William & Mary Law Professor Allison Orr Larsen makes that argument in her study of 15 years of Supreme Court decisions, the Washington Post reports. She found more than 100 instances in which justices cited facts not found in any of the briefs.
The practice is common in the Court’s most important cases from 2000 to 2010, Larsen writes in her article. In 58 percent of those 120 cases, justices mentioned facts outside the record.
Judges are public figures and although it hurts are subject to pretty vigorous criticism by lawyers. While one would like to hope that judges would have elephant like hides and attorneys would have the grace to make their views known in a forceful but dignified way, occasionally there is a collision between a thin skinned judge and a less than dignified attorney.
“The balance between an attorney’s right to free political speech and a state’s right to regulate attorney conduct is delicate.” So begins the opinion of the court that a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued recently. The opinion is an interesting analysis.
IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, announced two new publications from its Quality Judges Initiative: Cornerstones of State Judicial Selection: Laying the Foundation for Quality Court Systems and Judges and Leveling the Playing Field: Gender, Ethnicity, and Judicial Performance Evaluation.
The Cornerstones report recommends essential features of judicial selection systems and key roles for governors, legislatures, and citizens in those systems to ensure impartiality, accountability, and transparency in the selection of state judges.
Malia Reddick is the Director of the Quality Judges Initiative and oversaw the production of both reports.
“At IAALS we believe that commission-based judicial appointment, with regular performance evaluation and retention elections, is the best way to ensure impartial and accountable courts and judges,” Reddick says. “However, we also recognize that the constitutional changes required to adopt such methods may not be feasible in some states, so in this publication we have coupled desired attributes for court systems and judges with principles or ‘cornerstones’ for the full range of judicial selection processes to achieve courts and judges of the highest quality.”
The Leveling the Playing Field report evaluates data from four states that have longstanding judicial performance evaluation (JPE) programs (Alaska, Arizona, Colorado, and Utah), beginning with the question: is there empirical evidence that women and minority judges are evaluated less favorably than Caucasian male colleagues, as some have alleged?
“What we found is that judges in general receive high marks from court users,” Reddick says. “But there are a few areas in which women and minority judges in these states receive lower scores.”
This publication considers whether these differences are the result of implicit biases and recommends ways to minimize potential implicit bias, including a model process for developing JPE surveys and sample surveys created through such a process. Copies of both publications are available upon request. You can contact IAALS at http://iaals.du.edu
Many state courts and bar associations have recently focused on the need for this nation to develop a more effective system of civic education. Chief Justice Jean Toal of South Carolina has been a champion of civic education in her state. Retired United States Supreme Court Justice Sandra Day O’Connor has championed the cause at the national level. If there is any doubt about the need to improve civics education a new 60 Minutes/Vanity Fair poll which found that just 40% of Americans know that there are nine justices on the U.S. Supreme Court should dispel that doubt.
Among college graduates, 52% answered correctly while 40% got it wrong and 8% say they don’t know. Of those without a college degree, 35% got it right, while 52% answered incorrectly and 13% said they don’t know.
blog.amjudges.org 