Race and the Fourth Amendment is one of the most critical issues facing the criminal justice system. Lindsey Webb (University of Denver Sturm College of Law) has posted Legal Consciousness As Race Consciousness: Expansion of the Fourth Amendment Seizure Analysis Through Objective Knowledge of Police Impunity (Seton Hall Law Review, Forthcoming) on SSRN. The title might scare you off, but the content is interesting.

Here is the abstract:

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free to refuse law enforcement requests or otherwise terminate the encounter. Courts disregard the racial dynamics of the interaction as falling outside of the objective parameters of the seizure inquiry.

This Article suggests a novel pathway to a racially conscious reasonable person standard that does not require courts to abandon their allegiance to objectivity.

This approach focuses attention on the assumption, already inherent to that inquiry, that a reasonable person is one with a knowledge of the controlling law. A reasonable person is thus one with an understanding both of Fourth Amendment jurisprudence and the legal doctrine intended to deter or punish police misconduct, such as criminal and civil liability and the exclusion of illegally obtained evidence from criminal trials. A reasonable person with such knowledge would understand that police officers are not meaningfully constrained in the moment and are not consistently held accountable by the law. This approach would thus serve to shift the Fourth Amendment seizure analysis closer to racial realities by requiring courts to engage with the lack of police accountability as an issue of consequence to all reasonable people.

For many state court judges there has been a frustration with how the Byrne Grant program is administered. Many judges feel that too much of the money goes to law enforcement and too little goes to the courts. And for some there is a belief that even less goes to the beleagured public defense system. If you are in this latter camp, then this notable paper authored by Robynn Cox and Jamein Cunningham might be of interest to you. 

Here is the abstract: 

We estimate the effectiveness of the Edward Byrne Memorial State and Local Law Enforcement Assistance Program, a grant program authorized under the 1988 Anti-Drug Abuse Act to combat illicit drug abuse and to improve the criminal justice system, on racial bias in policing. Funds for the Byrne Grant program could be used for a variety of purposes to combat drug crimes, as well as violent and other drug related crimes.

The event-study analysis suggests that implementation of this grant resulted in an increase in police hiring and an increase in arrests for drug trafficking. Post-treatment effect implies a 107 percent increase in white arrests for drug sales compared to a 44 percent increase for blacks 6 years after the first grant is received.  However, due to historical racial differences in drug arrests, the substantial increase in white drug arrest still results in large racial disparities in drug arrests.  This is supported by weighted least squares regression estimates that show, for every $100 increase in Byrne Grant funding, arrests for drug trafficking increased by roughly 22 per 100,000 white residents and by 101 arrests per 100,000 black residents.

The results provide strong evidence that federal involvement in narcotic control and trafficking lead to an increase in drug arrests; disproportionally affecting blacks.

IAALS released Judicial Recusal Procedures: A Report on the IAALS Convening. The report offers eight recommendations for making recusal procedures for state court judges more transparent, fair, and timely. The report was co-authored by Russell Wheeler (Brookings Institution, Governance Institute, and IAALS Board of Advisors) and Malia Reddick (Manager of IAALS’ Quality Judges Initiative). 

Recently a friend prompted me to think about the propriety of judges doing independent research. Courts and scholars have long debated the propriety of judges doing their own research and fact-finding, a debate that has intensified in recent years with the ease of internet research. The U.S. Court of Appeals for the Seventh Circuit, largely driven by recently retired Judge Richard Posner, has been at the epicenter of that debate.

Frankly, reasonable minds may differ about when it is appropriate. But if at first blush you think this is an issue that others can worry about, I beg to differ on that score. Judicial information-gathering can run afoul of ethics rules if the research would “appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.” United States v. Harris, 271 F3d 690 (7th Cir 2001).

Courts, however, have been hesitant to find that independent research on more general issues results in “personal knowledge of facts that are in dispute.” Other limits on judicial curiosity stem from due process values, specifically the importance of giving parties notice and an opportunity to respond to new information. These fundamental values are not only constitutionally based, but are also embodied in a number of litigations.

I came across some interesting material which I thought I might as well share. 

• Former Minnesota Chief Justice Eric Magnuson has a quiz, here. 
• The American Bar Association has a very good paper, here.

“The laws that govern the practice of committing people who are acquitted because of mental illness dictate that they be hospitalized until they’re deemed safe to release to the public, no matter how long that takes,” writes Mac McClelland. What that means, frequently, is a life sentence in a grim, prison-like institution determined by a series of doctors, not judges, for those who never have been convicted of a crime.

From The New York Times

The title of this post is the title of this new paper posted to SSRN authored by E. Lea Johnston.

Here is the abstract:

Jail diversion programs have proliferated across the United States as a means to decrease the incarceration of individuals with mental illnesses.  These programs include pre-adjudication initiatives, such as Crisis Intervention Teams, as well as post-adjudication programs, such as mental health courts and specialized probationary services.  Post-adjudication programs often operate at the point of sentencing, so their comportment with criminal justice norms is crucial.

This article investigates whether and under what circumstances post-adjudication diversion for offenders with serious mental illnesses may cohere with principles of retributive justice.  Key tenets of retributive theory are that punishments must not be inhumane and that their severity must be proportionate to an offender’s desert.  Three retributive rationales could justify jail diversion for offenders with serious mental illnesses: reduced culpability, the avoidance of inhumane punishment, and the achievement of punishment of equal impact with similarly situated offenders.  The article explores current proposals to effectuate these rationales, their manifestations in law, and how these considerations may impact decisions to divert individuals with serious mental illnesses from jail to punishment in the community.

Shortly before Hurricane Irma hit, I was in Charleston, South Carolina. Stores were boarding up and people who lived in the lower areas of SC were fleeing. I had a conversation with a very interesting woman about the challenges of raising children. Her sons were in their twenties; our daughter is 12. We had different challenges. She worried about her sons’ interaction with the police and, when they were young, how to explain things like the KKK.

I kept thinking about the confluence of these events and wrote a commentary which was published by MinnPost:  Natural hurricanes bring humane responses. But how do we deal with the manmade hurricane of racial bigotry?

BY HANNAH FINGERHUT

While a large majority of Americans rate police officers positively on a 0-to-100 “feeling thermometer,” whites and blacks differ widely in their views, including among Democrats, according to a Pew Research Center survey conducted in August.

About two-thirds of the public (64%) give officers a warm rating on the scale (between 51 and 100), including 45% who rate them very warmly (76-100). Fewer give a neutral rating of 50 (16%), and just 18% give a cold rating on the scale (0-49).

But while a clear majority of whites give law enforcement warm ratings (74%), black and Hispanic views of police are more mixed.

Just three-in-ten black Americans (30%) express warm attitudes about police officers, while 28% offer a neutral rating. Another 38% give a cold rating, including 30% who give a very cold rating (24 or lower on the 0-100 scale).

Among Hispanics, 55% give police officers a warm rating, 25% give law enforcement a neutral rating and 17% have cold views.

These racial and ethnic differences in views of police officers are consistent with previous Pew Research Center findings that blacks are less likely than whites to express confidence in the police in their communities.

The full report can be found here.

Edward J. Imwinkelried (University of California, Davis – School of Law) has posted The Best Insurance Against Miscarriages of Justice Caused by Junk Science: An Admissibility Test that is Scientifically and Legally Sound on SSRN.

Here is the abstract:

This article is a contribution to a forthcoming symposium on wrongful convictions. In some cases, a wrongful conviction is virtually unavoidable. The empirical data demonstrating the invalidity of the expert’s technique or theory may become available only after the conviction. However, in other cases, the courts can minimize the risk of a wrongful conviction by applying a rigorous admissibility test.

Part I of this article considers — and then rejects — two possible admissibility tests. One is an extreme version of the relevancy test allowing the admission of testimony based on a technique or theory so long as one qualified expert vouches for the technique or theory. The second is the traditional FRYE general acceptance test. Both tests provide inadequate assurance against wrongful conviction because they demand nothing more than ipse dixit — either that of an individual expert or the collective ipse dixit of a substantial majority of the specialists in a field. Both approaches represent the antithesis of scientific methodology.

Part II of the article proposes a refined version of the DAUBERT reliability test. After stating the proposed test, the article dissects the test and explains each test component. Part II argues that the proposed test reflects sound scientific methodology and represents a synthesis of the governing statutes and cases.

Finally, Part III explores both the utility of the proposed test and its limitations. As Part III establishes, the satisfaction of the proposed test guarantees neither the admissibility of the expert’s testimony nor its legal sufficiency to support a conviction. Most importantly, Part III underscores that the use of a sound admissibility test does not preclude the possibility that later scientific research will discredit the technique or theory relied on at the time of the earlier trial. Vigilance against wrongful convictions must be a both/and proposition: We must not only apply an exacting test to assess the technique or theory at the time of the initial proffer of the evidence, but we also have to revise the postconviction relief statutes to correct miscarriages of justices that are exposed only by later scientific investigation. 

There is an important new decision for the Massachusetts Supreme Judicial Court this week.

The opinion begins:

In this case we are asked to consider the admissibility of field sobriety tests (FSTs) where a police officer suspects that a driver has been operating under the influence of marijuana. Police typically administer three FSTs — the “horizontal gaze nystagmus test,” the “walk and turn test” and the “one leg stand test” — during a motor vehicle stop in order to assess motorists suspected of operating under the influence of alcohol or other drugs. These tests were developed specifically to measure alcohol consumption, and there is wide-spread scientific agreement on the existence of a strong correlation between unsatisfactory performance and a blood alcohol level of at least .08%.

By contrast, in considering whether a driver is operating under the influence of marijuana, there is as yet no scientific agreement on whether, and, if so, to what extent, these types of tests are indicative of marijuana intoxication. The research on the efficacy of FSTs to measure marijuana impairment has produced highly disparate results. Some studies have shown no correlation between inadequate performance on FSTs and the consumption of marijuana; other studies have shown some correlation with certain FSTs, but not with others; and yet other studies have shown a correlation with all of the most frequently used FSTs. In addition, other research indicates that less frequently used FSTs in the context of alcohol consumption may be better measures of marijuana intoxication.

The lack of scientific consensus regarding the use of standard FSTs in attempting to evaluate marijuana intoxication does not mean, however, that FSTs have no probative value beyond alcohol intoxication. We conclude that, to the extent that they are relevant to establish a driver’s balance, coordination, mental acuity, and other skills required to safely operate a motor vehicle, FSTs are admissible at trial as observations of the police officer conducting the assessment. The introduction in evidence of the officer’s observations of what will be described as “roadside assessments” shall be without any statement as to whether the driver’s performance would have been deemed a “pass” or a “fail,” or whether the performance indicated impairment. Because the effects of marijuana may vary greatly from one individual to another, and those effects are as yet not commonly known, neither a police officer nor a lay witness who has not been qualified as an expert may offer an opinion as to whether a driver was under the influence of marijuana.^”

The full 22-page decision is here.