In October, the U.S. Department of Justice (DOJ) assembled the inaugural meeting of the Pre-Trial Justice Working Group.  This gathering of professionals from private foundations, courts, police, prosecution offices, public defenders, and various other law enforcement disciplines grows out of the National Symposium on Pretrial Justice held in Washington, DC last summer.  I attended as did Chief Judge Eric Washington who is the Chair of the Confernce of Chief Justices. Chief Judge Washington has made improvement of pre trial decision making a top priority during his tenure as Chair of the Conference.  With staff support from United State Department of Justice , the Pre-Trial Justice Working Group will meet regularly to prepare and execute actions that will cause an increased number of courts to make pretrial release decisions founded upon evidence-based risk assessments rather than upon financial conditions.

Relying upon abundant empirical data collected by the non-profit Pretrial Justice Institute, the Working Group plans to establish judicial education curricula, demonstration projects, media outreach, and technical assistance programs to persuade more and more courts that evidence-based risk assessments of an accused, transparent information-sharing of those assessments with judges, prosecutors and defenders; and effective tracking of the results of release decisions will result in significantly fewer unnecessary incarcerations of defendants.  DOJ organizers firmly believe these efforts in turn will significantly reduce unjust confinements caused by defendant indigence and produce cost-savings for relevant criminal justice agencies.

Those interested in learning more about this endeavor should contact NCSC’s participant on the Working Group, Judge Gregory Mize at GMize@NCSC.org or at 202-607-6111.  (Mize) or they can contact me at 612-348-4389.

Judge Pamela Alexander served as a District Court Judge in Minnesota for nearly a quarter century. She presently serves as the President of the Council on Crime and Justice. The Council is a nonprofit organization whose mission is to build community capacity to address the causes and consequences of crime and violence through research, demonstration and advocacy.

Minnesota Justice Monthly

Frederick Douglass’ assessment of the significance of race in the criminal justice system made more than a century ago is still appropriate today. Although there is much discussion and occasional celebration of racial progress in many aspects of American life, the same cannot be said concerning racial progress in the American criminal justice system. At our 2011 Minnesota Justice Forum, we learned that there is still much work to be done.

In order to look towards solutions to the problem of race in the criminal justice system, we must first look to history to explain why we are now in the state we are in and what we must do to change it.

Prior to the framing of the U. S. Constitution slavery of people of African descent had been in existence for over 100 years in the United States. It was not until 1865 when the 13

th Amendment to the Constitution was added abolishing slavery that African Americans equaled one full person rather than the 3/5’s as compromised in the Constitution. When the Founding Fathers uttered the words “We hold these truths to be self-evident that all men are created equal.” They did not include Blacks or Native Americans in that pronouncement. In virtually all of the court cases decided beginning with the early colonial period to the Civil War, blacks were the subject of much litigation but were never parties to that litigation because of their status as property subject to ownership by others. Native Americans were not considered citizens as well and thus did not have full access to the American Judicial system either.

American “due process” never applied to Blacks in this country until after the Civil War. Numerous conflicts arose because of this anomaly, the most famous and well known case being that of Dred Scott. This is of significance to Minnesota because he actually ran as far as the Minnesota territory before he was returned to his owner. After Dred Scott it became clear that Blacks and Native Americans were not considered “citizens” of the United States and therefore not protected by the Constitution. The debate continued on and eventually culminated in the Civil War and the Emancipation Proclamation officially ending slavery and preserving the union of the United States. However, the political view and the legal status of now “free” Blacks really changed very little. Post reconstruction era segregation laws called the “Black Codes” were established curtailing the ability of Blacks and other people of color to become full citizens in this country.

Segregation took a toll on America for years to come and most of those disputes ended up in Court. Congress eventually nullified the Black Codes with a series of Civil Rights Acts and the 14

th and 15th Amendments to the Constitution but the effect went on for years with some vestiges still today. The Courts for years have tried to overcome the historical legacy of racism and inferiority through litigation and legal interpretation.

Frederick Douglas said in 1862:

Race and the Criminal Justice System.

It is not a new phenomenon that people of color have been more severely punished for violating the same law as white Americans which can be traced back through history as well; I will give you a few examples:

In 1809 it was illegal to steal hogs and the punishment was as follows, whites if guilty would receive a penalty of 25 lashes or a 10 pound fine, while non-whites (slave or free) would receive 39 lashes on their bare back with no option to pay a fine.

In 1697 Pennsylvania passed death sentence legislation for a black man who raped a white woman and castrated them for attempted rape while a white man who committed the same offense would be fined, whipped or imprisoned for one year. I would note that there was no penalty for raping a Black woman.

During reconstruction, Southern legislatures sought to maintain control of freed slaves by passing criminal laws directed at blacks only. These laws turned offenses normally thought of as petty offenses into felonies and as a result, southern prisons swelled and became predominantly black for the first time. The prison population tripled in Georgia within a two year time frame because of these new laws.

The Harrison Act of 1914 was the first federal law to prohibit the distribution of cocaine and it was passed on the heels of overblown media accounts depicting cocaine addicted black criminals and prostitutes in the inner cities. In later years cocaine became associated with jazz musicians (black America’s only form of original music) and the penalties remained severe. It was not until the early 1960’s when cocaine became associated with Hollywood and became known as the “rich man’s drug” that these penalties were examined.

The same was true for marijuana use, while it was associated with communities of color, possession and use remained a felony but when it moved into mainstream society the penalties became less severe. Today possession of a small amount of marijuana is a petty misdemeanor while in the 40’s and 50’s many black males went to prison for possessing that same small amount.

Then we have had the 25 year debate on “crack vs. powder” cocaine which continues today with differentiated sentences for the same drug based on the perception of the user. There are literally hundreds of cases nationwide that have debated this issue and the discriminatory impact on African Americans of which I am intimately aware.

If you would like to read one of the most exhaustive and compelling analyses of race in the criminal justice system concerning issues of racial discrimination I would refer you to 101 Harvard Law Review 1472 (1988) entitled: Developments in the Law – Race and the Criminal Process.

I give you this historical backdrop to continue our discussions on racial disparities because we cannot bury our heads when it comes to facing that fact that racism still exists and sometimes finds itself inside the criminal justice system and we must be diligent in our efforts to stop it. The work and words of presenters at our Justice Forum were both heartening and clear reminders that there is still much work to be done. When we utter the famous words: “We hold these truths to be self-evident that all men (and women) are created equal.” We need to actually mean it, practice it and apply it to all.

Judge Pamela G. Alexander

President, Council on Crime and Justice

There is a  new research paper from  New York University’s Institute for Policy Integrity, which urges policymakers to apply more economic analysis and cost/benefit research to criminal justice policy. Here is how the report is described via this webpage: 

Crime and justice are not usually associated with cost-benefit analysis. But they should be, according to new research. This is especially true in an economic downturn, when government funding is scarce. In “Balanced Justice,” released jointly with the Center for the Administration of Criminal Law, author Jennifer Rosenberg reviews a growing body of research showing that counting the costs and benefits of our nation’s justice system can highlight areas of improvement that can save billions of taxpayer dollars without compromising public safety.

Instead of incarceration, behavioral therapy for young offenders is saving Washington State money and keeping citizens safer.  In Hawaii, intensive supervision is keeping parolees out of expensive penitentiaries and keeping cash in state coffers.  And all over the country, drug courts have proven cost-effective alternatives to standard prison sentences, lowering recidivism rates and earning taxpayers sizeable returns on investment.

These results show how powerful the use of economic analysis can be when applied to criminal justice policy.  Many of these initiatives cost less than incarceration and future benefits can dwarf the administrative costs of implementing new criminal justice programs.

In  The Atlantic, Andrew Cohen has this effective follow-up commentary on the report, which concludes with these points:

It’s been 23 years now since George H.W. Bush used the infamous “Willie Horton” campaign advertisement to portray Michael Dukakis as “soft on crime.”  It’s been nearly twice that long since the so-called “silent majority” took back the streets.  Violent crime is down.  But generations of Americans have come and gone accepting the shibboleth that the easiest answer about criminal justice — lock ’em up and throw away the key — is the best answer about criminal justice.

The price we have paid for this lazy calculus is dear: our prisons now are teeming with inmates, the highest population in the world, and many of our states can no longer afford to adequately house them.  Of course, many criminals deserve to be there.  But many do not.  For years there has been a strong economic case for legalizing (and taxing) marijuana.  And now, more broadly, there is a stronger economic case for keeping more criminals out of prison.

The NYU study represents a smart new way of looking at an old problem; an economic evaluation that strips away some of the emotion (and demagogeury) that surrounds any discussion of crime and justice.  It’s easier to be “tough on crime” when you can pay the price, right?  But now we can’t.  And the collective poverty within our criminal justice systems isn’t going to ease on its own.  So bring in the economists! And let the stale, old law-and-order crowd step aside.

The Associated Press reports that special interest groups spend a lot of dollars on judicial races. In response to what is likely to be a further escalation of the phenomenon, the American Judges Association will be hosting a symposium in Nashville, Tennessee on May 17-18, 2012 on how judges can respond to this threat to the independence of the judiciary.

An excerpt from the AP story: 

Interest groups pumped millions of dollars into state judicial elections at unprecedented levels around the country in the last election cycle, a trend that threatens to undermine the impartiality of judges, a report issued Thursday said.

Political parties and advocacy groups working independently from the candidates are accounting for a greater share of spending on judicial elections. Such independent expenditures accounted for $11.5 million, or nearly 30 percent, of the money spent in the 2009-2010 election cycle. That’s up more than 60 percent from the 2005-06 election cycle.

That growth helps explain the nasty tone of some judicial elections. While candidates ran mostly positive advertisements, interest groups accounted for three out of every four attack ads, said the report, which was compiled by three organizations, including the Brennan Center for Justice at New York University School of Law.

http://hosted.ap.org/dynamic/stories/U/US_JUDICIAL_ELECTIONS_INTEREST_GROUPS?SITE=AP&SECTION=HOME&TEMPLATE=DEFAULT

This spring the American Judges Association as part of its midyear meeting will be hosting a symposium on judicial elections (retention and contested) on May 17, 2012 in Nashville, Tennessee. Structural reform to deal with the issue of judicial races and money is not going to happen overnight, so practical discussion about how to deal with the 2012 election cycle most effectively is imperative. Among the speakers at the American Judges Association will be Alaska Supreme Court Justice Dana Fabe who was successful in her 2010 retention election through a very effective use of limited campaign funds and the use of social media. Registration for the conference (which will be limited) will be available shortly.  

A new report issued examines non-candidates’ special interest spending on judicial races reaffirms the seriousness of this issue. Among the report’s key findings:

·         Nearly one-third of all funds spent on state high court elections came from non-candidate groups ($11.5 million out of $38 million in 2009-10).  

·         Nearly 40 percent of all funds spent on state high court races came from just 10 groups, including national special interest groups and political parties.   

·         Though outside groups paid for only 40 percent of total ads, they were responsible for 3 in 4 attack ads.

WILKES-BARRE – Five of the seven candidates vying for six open seats on the Luzerne County Court of Common Pleas have spent a combined $889,000 in both the primary and general elections, according to campaign finance reports filed Friday.That number does not include what judicial candidates Fred Pierantoni and Joseph Sklarosky Jr., have spent from June until October. Those reports were not available.WILKES-BARRE – Five of the seven candidates vying for six open seats on the Luzerne County Court of Common Pleas have spent a combined $889,000 in both the primary and general elections, according to campaign finance reports filed Friday.

“The New Politics of Judicial Elections 2009-10,” by the Justice at Stake Campaign, the Brennan Center for Justice at NYU School of Law, and the National Institute on Money in State Politics, shows that expensive judicial races are increasingly the norm across the country. The report is available at www.newpoliticsreport.org.                                                                                                                                                                                                                                                                                                                                                   

Contested and expensive judicial races are not something that only occurs in big state Supreme Court races as illustrated by what is occurring in Pennsylvania where five of the seven candidates vying for six open seats on the Luzerne County Court of Common Pleas have spent a combined $889,000 in both the primary and general elections, according to campaign finance reports filed Friday. Campaign finance records show, with the exception of Pierantoni and Sklarosky, candidate Lesa Gelb spent the most on her campaign: $309,312. 
Read more: 

http://www.timesleader.com/news/Judge_spending_tops__1_million_10-29-2011.html#ixzz1cBWThZru

University of Washington psychologist Elizabeth F. Loftus wrote in 1979, “All the evidence points rather strikingly at the conclusion that there is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’”  

How courts should deal with eye witness identification is the issue in Perry v. New Hampshire which was argued before the United States Supreme Court this week. The precise issue is whether the Constitution requires courts to make a more searching inquiry into the reliability of such testimony when it was police manipulation that made the eyewitness identification “suggestive,” or whether such an inquiry is required anytime there is evidence suggesting that the witness made the observation amid circumstances that were “suggestive.” There are few commentators on Supreme Court proceedings that are more insightful than Lyle Denniston who writes for the Scotus blog. He has an excellent analysis on the case:

http://www.scotusblog.com/2011/10/argument-preview-can-eyewitnesses-be-believed/#more-130611  

Earier this month the AJA blog had a posting entitled 

Reece v. Edmonton: What a 36-Year Old Elephant Teaches Us About Our Relationship to Animals—and to Government

There is nothing like an animal rights case to get everyone upset. There are those who passionately believe that many of our practices in zoos and elsewhere are barbaric. There are others who believe that we are actually quite humane in almost all zoos, giving children a chance to see animals that they would never have the opportunity to see and at the same time providing a safe environment for animals sometimes on the brink of extinction. The case of Reece v. Edmonton is in sense just a case about an elephant, but it was decided not on the merits but driven by an analysis of standing. 

Chief Justice Fraser’s well written dissent gives an analysis the Canadian view of standing, but she wrote that the case was not merely about civil procedure: “Lucy’s case raises serious issues not only about how society treats sentient animals…but also about the right of the people in a democracy to ensure that the government itself is not above the law.”

http://www.thecourt.ca/2011/09/13/part-i-reece-v-edmonton-city-what-a-36-year-old-elephant-teaches-us-about-our-relationship-to-animals-and-to-our-government/#comment-301453

http://www.thecourt.ca/2011/09/22/9558/#more-9558 .

Now the United States Court of Appeals for the District of Columbia Circuit has weighed in on the issue of standing again in the context of a case involving the treatment of elephants. http://www.cadc.uscourts.gov/internet/opinions.nsf/FE85D42ED8A9223185257937004EDC8B/$file/10-7007-1338482.pdf. 

We are a nation that has more firearms than any other in the world. The United States Supreme Court ensured that we will maintain that legacy, but now courts are confronting just how expansive the right to bear arms is. Among the more thoughtful commentators on the subject is Professor Eugene Volokh who has an interesting blog post: 

Second Amendment Protects Felon Whose Convictions Were 30 Years Ago

Eugene Volokh • October 27, 2011 7:43 pm

So held a North Carolina trial court in Johnston v. State (Oct. 24, 2011). Richard Johnston had been convicted of “felonious receipt of stolen property and conspiracy to commit grand larceny” in 1978, and pled no contest “to fraudulent setting fire, conspiracy, false statement to procure, and conspiracy to receive, receiving, conspiracy to commit larceny and accessory before the fact” in 1981. (The underlying crimes occurred in 1976, and “did not involve either violence or the use of a firearm.”) Since then, Johnston has apparently led a law-abiding life, setting aside “routine traffic citations and two hunting citations, one of which was dismissed”; he is now 69 years old.

The trial court concluded that, when Heller said that bans on felon possession of guns were “presumptively valid,” this presumption could be rebutted, and in this case it was rebutted, given the age of Johnston’s conviction and his apparently blameless life since then. The court also suggested that its analysis might also apply to people whose last convictions were as recent as seven years ago, especially when the convictions were for nonviolent crimes; but it didn’t have occasion to issue any specific holding on that point.

The court also concluded that North Carolina’s firearms rights restoration law — which allows firearms rights to be restored only when a person has only one felony conviction, that felony is a nonviolent felony, and the conviction is at least 20 years old — violates the Due Process Clause, because it “provides no procedural mechanism by which a person subject to it may be heard on the issue of … her likelihood to commit future crimes of violence using a firearm before being deprived of her fundamental liberty interest” (p. 23). (I’m not sure that this is a sound argument: If a permanent ban on gun ownership by all felons who have more than one felony conviction is unconstitutional on Second Amendment grounds, the due process analysis is beside the point, but if it is unconstitutional as to certain felons, the objection is to the substantive prohibition and not to the procedure.)

Finally, though the court favorably cites Britt v. State, a 2009 North Carolina Supreme Court case that held that a felon whose crimes were similarly far in the past regained his constitutional right to bear arms, the Johnston decision rests on the Second Amendment, and Britt relied only on the North Carolina Constitution’s right to bear arms provision. This makes Johnston potentially more influential in other jurisdictions, assuming it is appealed and affirmed on appeal.

The opinion is also quite long and pretty detailed in setting forth its arguments; if you’re interested in the subject, read the whole thing

A critical case that pits freedom of religion and expression against the right of homosexuals not to be discriminated has come before the Canadian Supreme Court. 

William Whatcott, a man who engaged in same-sex activities before finding religion and joining the Christian Truth Activists, was ordered by the Saskatchewan Human Rights Commission to pay $17,500 to four individuals who were offended by a pair of pamphlets he distributed in 2001 and 2002 in Regina and Saskatoon.

One flyer expressed his opposition to teaching children about homosexuality in public schools, while the other attacked homosexual behaviour, drawing on a personal ad in a gay magazine that appeared to promote pedophilia.

Whatcott appealed the decision and won, but in a bid to have the original decision reinstated, the commission will argue Wednesday that there are limits to freedom of expression.

“As Canadians, we understand that there is a justifiable and narrow limit on the freedom of expression when it has the potential to harm others in the community,” David Arnot, chief commissioner with the Saskatchewan Human Rights Commission, said Wednesday.

“In the case of public speech, where expression has the real potential to escalate and expose a target group to hate, we have a responsibility to act.”

Arnot said he will argue that Whatcott’s words and behaviour “crossed the line between critical speech and hateful speech” and that his case would “speak to the power of words to maim and the need for protection from the most extreme, hate-filled and destructive forms of public speech.”

http://www.canada.com/life/Supreme+Court+mulls+line+between+rights+religious+freedom/5534699/story.html#ixzz1bES429Pk