It is taken as a given by many that the individual right to bear arms recognized by the United States Supreme Court did not give felons any right to have a gun. But there are state courts that are now reexamining that conventional legal wisdom. In Baysden v. State (N.C. Ct. App. Nov. 15, 2011) (2–1) the court held  that North Carolina’s ban on possession of guns by a felon violates the North Carolina Constitution’s right to bear arms provision as to someone with two over-30-year-old nonviolent felony convictions. This follows Britt v. State (N.C. 2009), which also found that the North Carolina Constitution gave that right as well. There is not unanimity on this holding, but a North Carolina trial court decision, Johnston v. State, held the same under the Second Amendment.  The vast majority of states continue to find no constitutional flaw in banning felons from possession of guns but  People v. Dewitt (Colo. Ct. App. 2011) found a broad right — under the Colorado Constitution.

 If the state constitution does not grant felons the right to have guns, there are other avenues. A New York Times article reports that some states are making it possible for felons to regain gun rights, see here. 

Margaret Colgate Love has posted The Collateral Consequences of Padilla V. Kentucky: Is Forgiveness Now Constitutionally Required? (University of Pennsylvania Law Review PENNumbra, Vol. 160, No. 113, 2011) on SSRN.  Here is the abstract: 

People who commit a crime and are brought before a court to be sentenced expect to face a prison term or at least probation, and perhaps a fine. They may expect to experience a degree of social opprobrium, the so-called “stigma of conviction.” They surely understand that having a criminal record is not career-enhancing. But they also probably think that at some point they will be able to pay their debt to society and return to its good graces. They are reinforced in their belief in the possibility of redemption by periodic reminders from our elected leaders: President George W. Bush called America “the land of second chance,” and President Obama famously called to congratulate the Philadelphia Eagles for letting Michael Vick walk directly from prison back into the team’s starting lineup. 

Continue reading “Love on Collateral Consequences of Padilla v. Kentucky “

Many state Supreme Court Justices now give a state of the judiciary address to their legislatures. These speeches give the judiciary a platform used many times to highlight the budget needs of state courts. The Chief Justice of Georgia focused not on budget issues but the need for sentencing reform.  Coverage of the Chief Justice’s speech was in  this recent piece from the Atlanta Journal-Constitution, which gets started this way:

Georgia’s chief justice on Wednesday called on lawmakers to enact sentencing reforms that steer nonviolent offenders away from costly prison sentences, saying, “we now know that being tough on crime is not enough.

In a 25-minute address before a joint session of the Legislature, Chief Justice Carol Hunstein asked lawmakers to adopt proposals by the Special Council on Criminal Justice Reform that studied Georgia’s sentencing and corrections system.  The state can no longer afford to spend more than $1 billion a year to maintain the nation’s fourth-highest incarceration rate, she said.

The initiative, supported by Gov. Nathan Deal and Democratic and Republican leaders, calls for increased funding for drug, mental health and veterans’ courts across the state and for other alternatives to prison.  Legislation is being drafted and will be introduced in the coming weeks, said Brian Robinson, a spokesman in the governor’s office.  Deal’s budget plan already asks for $10 million for new accountability courts.

Hunstein, a member of the special council, said its members “began united in our belief that warehousing nonviolent offenders who are addicted to drugs or are mentally ill does nothing to improve the public safety.  Indeed, in the long run, it threatens it.”

Accountability courts address the roots of crime and reduce recidivism, she said.  “If we simply throw low-risk offenders into prison, rather than holding them accountable for their wrongdoing and addressing the source of their criminal behavior, they merely become hardened criminals who are more likely to re-offend when they are released.”

The great John W. Gardner identified four sources of stress endemic to leadership: hostile criticism, invasion of privacy, work overload, and combat. He noted that negative consequences such as alcoholism, bitterness, paranoia and self-pity are among the most common afflictions leaders frequently experience. Gardner also highlighted the importance of leaders’ recognizing their need for stress reduction strategies such as obtaining adequate rest, occasions of isolation and inactivity, seeking solace in friends, family, and faith, and maintaining a healthy perspective on life. My experience in leadership development and wellness promotion has taught me that continually practiced, those strategies that Gardner mentions enable self-renewal by releasing human energy and talent, equipping leaders to facilitate the renewal process in their sphere of influence. I have also seen that to avoid those strategies is to risk doing harm to self, others, and ultimately to the organization in which the leader serves.

Charles A. Ericksen, Ed.D.

The debate in the leadership literature continues over the extent to which leadership qualities and personal characteristics that are less amenable to change (drive, perseverance, emotional resilience, etc.) can be developed. Bennis and Thomas (2002) took a developmental approach in their study of 43 leaders when they examined “why some people are able to extract wisdom from experience, however harsh, and others not” (p. 2). Their focus was less about the traits of sampled leaders than on the leaders’ transformative learning journey. They stressed “Our study confirmed our belief that traits and other individual factors are given too much prominence in studies of leadership” (p. 91). Bennis and Thomas termed those transformative learning journeys the “crucibles of leadership” (p. 87). The authors generalized respondent’s narratives about emerging stronger from an ordeal by hypothesizing the existence of an adaptive capacity in those individuals. Judicial education can provide an important opportunity for developing judges’ adaptive capacity. The opportunity for judges to engage in discussions about difficult matters, totally off the record, can build collegiality as well as strengthen judicial performance. Judicial educators and conference planners should consider this part of the central mission of judicial education.

Charles A. Ericksen, Ed.D.

Since the 1970’s, the subjects of stress and coping have received considerable empirical attention in the social and personality psychology, developmental psychology, and behavioral medicine literature. One construct that emerged from the research pertains to an individual’s capacity to maintain psychological and physical well-being despite suffering risk experiences. Resilience studies originally focused on high risk populations with an interest in children at risk for psychopathology and problems in development owing to emotional, developmental, economic, or environmental challenges. Early on, the field of study reflected an interest in not only what factors insulate and protect an individual but also how the protective processes exert their influence. The combination of an emerging emphasis in positive psychology and recent advances in the study of adult development suggests that resilience may have much broader applicability, with relevance to virtually any population that encounters acute or chronic stress. Ultimately, the early research laid a foundation for the recognition that stress is ubiquitous and resilience is a much more common phenomena than previously thought.     

         Resilience is associated with flexibility, buoyancy, and adaptation. It may be the key skill for surviving and thriving in the multitude of changes we all are experiencing as we move into the Digital Age. Resilience and learning go hand in hand. Like intelligence or athletic ability, resilience comes in many forms and can be developed.   If we are to have resilient organizations, leaders must of course be resilient themselves, possessing the human capacity to learn from and be transformed by adversity, challenge and change. In addition, they must cultivate the resiliency of the workforce and create appropriate systems that sustain healthy workplaces and learning organizations.

Chuck A. Ericksen, Ed.D.

 Last fall, there were a series of events that held promise that the criminal justice system was about to see major re-thinking about how courts deal with eyewitness identification.  The New Jersey Supreme Court issued an extensive order which outlined in detail the problem with eyewitness identification. http://www.courts.state.nh.us/supreme/orders/StatevPerry.pdf   The American Judicature Society issued a report on eyewitness identification.  http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=1000   The United States Supreme Court accepted cert on an eyewitness identification case.  Among the amicus briefs filed with the Supreme Court was one filed by the American Psychological Association. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf  The Supreme Court, with only one dissent, refused to require a new screening procedure in situations where police have not actually manipulated the identification. Perry v. New Hampshire (docket 10-8974) http://www.scotusblog.com/case-files/cases/perry-v-new-hampshire/?wpmp_switcher=desktop 

Justice Ruth Bader Ginsburg’s opinion that the practice of allowing jurors, not judges, in a mid-trial screening process, to decide whether to believe eyewitness testimony was all that was constitutionally required.  Justice Sonia Sotomayor, the lone dissenter, would have required a screening procedure by the judge any time an identification had been made in a “suggestive” setting.

The courts have been split on this issue.  One court had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police.  The New Hampshire Supreme Court and others have taken the opposite view.  In Perry v. New Hampshire, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building.  She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot—the only black person standing next to a police officer who had come to investigate.  About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.

The Supreme Court  recently released an order today denying certiorari in Cash v. Maxwell, formerly Maxwell v. Roe, an important Ninth Circuit decision. Denials of cert usually are without comment, but this case generated a debate between Justice Sotomayor, who supported the denial, and Justices Scalia and Alito who thought the Ninth Circuit’s decision should have been overturned. See SCOTUSblog post here, and L.A. Times story here.

Decades ago the term palimony was coined. Palimony is a popular (but not a historical or legal) term used to describe the division of financial assets and real property on the termination of a personal relationship. Many courts, including Canadian courts have not so subtlety encouraged marriage holding that there were minimal if any financial rights for unmarried couples. The Globe and Mail reports that may change in Canada.

At the heart of the case being argued on Wednesday are a Quebec couple, identifiable only as Lola and Eric, who enjoyed a life of fabulous wealth. Lola’s lawyers argue that under Quebec’s legal regime, their client is precluded from obtaining spousal support, let alone a share of Eric’s multibillion-dollar assets.

The first stage of inquiry for the Supreme Court will be to determine whether Quebec should be compelled to join the rest of Canada in offering common-law spouses the same rights as married couples when it comes to obtaining spousal support.

Should it choose to go further, the court could reverse its 10-year-old precedent in the case of Walsh v. Bona, erasing a sharp line the court drew between marriage and common law when it comes to the division of property. National – The Globe and Mail

Last fall, there were a series of events that held promise that the criminal justice system was about to see major re-thinking about how courts deal with eyewitness identification.  The New Jersey Supreme Court issued an extensive order which outlined in detail the problem with eyewitness identification. http://www.courts.state.nh.us/supreme/orders/StatevPerry.pdf   The American Judicature Society issued a report on eyewitness identification.  http://www.ajs.org/ajs/ajs_editorial-template.asp?content_id=1000   The United States Supreme Court accepted cert on an eyewitness identification case.  Among the amicus briefs filed with the Supreme Court was one filed by the American Psychological Association. http://www.americanbar.org/content/dam/aba/publishing/previewbriefs/Other_Brief_Updates/10-8974_petitioneramcuapa.authcheckdam.pdf  The Supreme Court, with only one dissent, refused to require a new screening procedure in situations where police have not actually manipulated the identification. Perry v. New Hampshire (docket 10-8974) http://www.scotusblog.com/case-files/cases/perry-v-new-hampshire/?wpmp_switcher=desktop 

Justice Ruth Bader Ginsburg’s opinion that the practice of allowing jurors, not judges, in a mid-trial screening process, to decide whether to believe eyewitness testimony was all that was constitutionally required.  Justice Sonia Sotomayor, the lone dissenter, would have required a screening procedure by the judge any time an identification had been made in a “suggestive” setting.

The courts have been split on this issue.  One court had ruled that federal judges must scrutinize all suggestive ID procedures, not just those orchestrated by police.  The New Hampshire Supreme Court and others have taken the opposite view.  In Perry v. New Hampshire, the witness, who had called police to check on a black man allegedly breaking into autos in the parking lot of her apartment complex, was questioned by a police officer in the building.  She then went to the kitchen window of her apartment, looked out, and identified a suspect in the parking lot—the only black person standing next to a police officer who had come to investigate.  About a month later, though, that witness could not pick out the same person from an array of photos shown to her by police.