Okay, before you answer “not very much,” perhaps a little more thought might help. The Boston Herald reports that Attorney General Maura Healey promised to “vigorously oppose” a Texas judge’s order for her to testify in a deposition relating to her office’s probe of Exxon Mobil’s climate change policy and said she has no plans to visit the Lone Star State for the Dec. 13 hearing.

“Our position in this ligation is that the authorities in Texas, and specifically the federal court down there, has no jurisdiction over state attorneys general and the work of their offices,” Healey told reporters today at the State House. “It’s been disappointing to see Exxon fight the request for basic information. Our job as attorneys general is to be able to ask questions.”

Healey launched her probe of Exxon Mobil’s research in April, arguing the oil giant was deceiving consumers and investors. Exxon Mobil filed for an injunction — which Healey’s lawyers have moved to dismiss — to stop her on First Amendment and other grounds.

Judge Ed Kinkeade late last week ordered Healey, along with New York AG Eric Schneiderman, to answer questions in a Dallas courtroom deposition December 13.

“We are vigorously opposing any order to testify or produce discovery,” Healey said. “We believe we are on strong legal ground, not only with respect to the questions that we asked, but also to the position that this court has no jurisdiction over us.

“In simple terms, what the court has done is inappropriate,” the AG added.

Asked whether Healey has plans to travel to Texas for the deposition, she replied, “No, I don’t and we will take it up on appeal.”

Kinkeade has noted Exxon Mobil has charged Healey with attempting “to satisfy a political agenda,” and said in his order he wants to know more about what is behind her probe before he finds for either side.

Whether Attorney General Healey has a “political agenda” isn’t reasonably in dispute. She is, after all, an elected political figure. She is neither the first nor the last elected Attorney General who has started inquires relating to deceptive practices.

So, to the point:  Should a Federal judge interfere with an ongoing or incipient investigation by requiring the Massachusetts Attorney General to travel to his courtroom for a deposition? Maybe? How about requiring the next Attorney General to appear in a Federal Judge’s courtroom for a deposition? After all, he is just an appointed figure…but an important, busy guy…so maybe whether you are elected pursuing a “political agenda” or appointed is not the proper question. So, how about a state court judge from Colorado who tells Attorney General Sessions “show up in my courtroom so I can find out why you are messing with our legalized marijuana laws”?

Tricky stuff, which suggests maybe judges needs to be cautious in this arena. 

From the Marshall Project:

When someone is innocent of a crime, it seems safe to assume that that person would fight his case. But as the Associated Press pointed out, the opposite often happens. Out of 157 exonerations last year, 68 involved defendants who had pleaded guilty, a number that reflects just how overwhelmed our criminal justice system has become.

“For a long time, it was our country’s crown jewel, built on the principle that it was better that 10 guilty go free than one innocent be wrongfully convicted,” one defense attorney says. “Now sadly, the system accepts and even encourages innocent people to plead guilty.”

— Alysia Santo

There is a lot of good new material on the procedural fairness web site!

Check it out here.  

Up until the last decade, many judges and appellate courts gave little attention to collateral consequences. Indeed there are many appellate courts who ruled that failure to advise on the collateral consequence of deportation was no big deal (except, of course. to the deportable defendant). Since the decision in Padilla v. Kentucky, 559 U.S. 356 (2010), appellate courts and judges have given much more thought to collateral consequences, as illustrated by an essay written by Nora Demleitner.

Judicial Challenges to the Collateral Impact of Criminal Convictions:  Is True Change in the Offing? is the title of this notable new essay.  Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities.  A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

Each year, Governing Magazine names several public officials of the year. It is quite an honor for a judge (I received the award in 2004). United States Senators, Governors, and Mayors of the nation’s largest cities are chosen, but frankly not many judges are recipients.

Governing explained why Judge Leifman was selected:

In 1973, Steve Leifman was a college student interning for a Florida state senator in Tallahassee. One day, the office received a letter from a constituent claiming that her son was being held at a state psychiatric hospital over the family’s objections. Leifman was sent to investigate. When he arrived at the hospital, staff showed him to the patient’s room. There Leifman found the young man shackled to a bed. He was enormously overweight: Hospital staff had been injecting him with Thorazine, an antipsychotic medication that causes weight gain. Thorazine can work as a treatment for psychosis. But the young man strapped to the bed was not psychotic. He was autistic.

Leifman was deeply shaken. Then a volunteer took him down to the basement to see where the truly psychotic patients were held. Eventually they reached a metal cage where a guard was hosing feces off several naked men. “It was one of those experiences that you never forget,” says Leifman. “The only thing I could think of while I was standing there was, ‘We treat animals better in the zoo.’”

Florida eventually closed most of its state mental hospitals. But when Leifman, a former public defender, became a county court judge in 1995, he realized where most of the patients had gone — to jails and prisons. In Miami-Dade County, which has the highest rate of mental illness in the entire nation, one-fifth of all the arrests involved people with mental problems. The Miami-Dade jail was the biggest psychiatric care facility in the state of Florida. Every few months saw incidences in which area law enforcement officers shot and killed someone who was suffering from mental illness. 

Leifman set out to change this. He developed a “crisis intervention training” program to teach police how to handle people with mental disease. Working with area law enforcement, mental health providers and elected leaders, he created the Criminal Mental Health Project (CMHP), which diverts the mentally ill out of the criminal justice system and into community treatment. In 2004, Leifman and his allies persuaded Miami-Dade County voters to approve a $21 million bond issue to convert a shuttered jail into a mental health-care facility. This year, the county and Jackson Memorial Hospital approved another $20 million for a new state-of-the-art facility, with construction scheduled to start in 2017. In June, Gov. Rick Scott signed a law that requires communities across the state to develop CMHP-style models of coordinated care. 

Many communities now try to keep people with mental illnesses out of the criminal justice system. What makes the Miami model distinctive, The New England Journal of Medicine noted in an article hailing Miami as a national model, is “a comprehensive, coordinated response to what’s recognized as a shared community problem.” Leifman is now working with the American Psychiatric Association Foundation, the National Association of Counties and the Council of State Governments on a new initiative, Stepping Up, which seeks to bring the Miami model to places across the country.

“The most exciting part of all of this is that people are recovering; they are getting their lives back,” says the 57-year-old Leifman. “Communities are saving money and improving public safety in the process. It doesn’t get better than that.” 

Improving the Public’s Trust and Confidence
in the Judiciary

Register before December 31st and take $100 off the registration fee! You don’t want to miss the beautiful landscape of Portland, Oregon this February or any of the education being offered at the Midyear Conference. Join your fellow NACM members for two days of knowledge including the opening plenary session on Community Engagement in the State Courts. Speakers from the National Advisory Board and from the Arkansas Administrative Office of the Courts will provide NACM members with an update on this important initiative, which is working to develop tools for courts to engage with minority and disadvantaged communities, ensure equal access to justice, and build public trust and confidence in the judiciary.

Want to know more about NACM’s new Guide that was just published? Join the conversation in the session about User-Friendly Courts Guide: An Essential Resource for Court Managers Seeking to Enhance Public Trust and Confidence. The recent CCJ/COSCA resolution calling for meaningful access to justice for all will be discussed at the session Our Changing Community: Trust and Confidence in a Time of Shifting Demographics. These are just a few highlights of the education being offered. Check out the full agenda and while you plan, don’t forget to attend the new social hour on Monday night in the exhibit hall!

Reminder that the deadline for submitting session ideas for the National Association for Court Management (NACM) and the International Association for Court Administration(IACA) Annual Conference next July is Monday, November 28th! Need more information? Check it out!

The highlight of the American Judges Association Annual Conference is the appearance of Professor Erwin Chemerinsky and his analysis of the recent United States Supreme Court term.

If you cannot wait, you can access the November 2016 issue of the Harvard Law Review via this link. It is the annual U.S. Supreme Court Term-in-review issue.

Reid K. Weisbord and George C. Thomas III (Rutgers Law School and Rutgers Law School) have posted Judicial Sentencing Error and the Constitution (Boston University Law Review, Vol. 96, No. 5, 2016) on SSRN.

Here is the abstract:

Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization. Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence. Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.

Michael L. Perlin (New York Law School) has posted ‘Who Will Judge the Many When the Game is Through?’: Considering the Profound Differences between Mental Health Courts and ‘Traditional’ Involuntary Civil Commitment Courts on SSRN.

Here is the abstract:

There is a developing robust literature about mental health courts (MHCrts) in the United States, and researchers have begun to focus on a broad range of empirical issues, such as the extent to which defendants are competent to waive their trial rights in such settings, the significance of diversion, etc. Also, advocates and other scholars have engaged in vigorous debates about the value of these courts, and the extent to which they do or do not preserve and protect due process and civil liberties values. Finally, those who locate themselves in the therapeutic jurisprudence (TJ) movement write frequently in support of them – and other problem-solving courts in general – as the best way to optimize TJ values in the court process. But there has been virtually nothing written from the perspective of what college professors always called “Compare and contrast.” 

How are these MHCrts like or unlike the involuntary civil commitment courts which, for more than 40 years have adjudicated the question of whether individuals should or should not be committed involuntarily to inpatient psychiatric hospitals and which have been characterized as “greased runways” to such commitment? 

In the past, I have written about how, in these courses, adjudication takes place in “pitch darkness” in cases presided over by disinterested judges in which patients were often represented by even less-interested lawyers. We are still confronted with studies from the 1970s that showed that pro se patients had a better chance of release in some states than did those with assigned counsel. The disconnect between the prevailing “takes” on MHCrts and traditional civil commitment courts is profound. Yet, there has been virtually no commentary in the literature on that disconnect. 

In this paper, I “compare and contrast” the two, and demonstrate that the reasons that the disconnect is so total is that the courts come from utterly dissonant perspectives. MHCrts – at least the successful ones – began with the conscious goal of promoting TJ in a way that did not impinge on civil liberties; traditional civil commitment courts grudgingly gave lip service to those Supreme Court cases that established baseline due process procedures in commitment cases, and generally have shown little interest in the nuances and complexities of the cases that are being decided, a lack of interest often reflected in the work done by lawyers in those cases. I conclude that attorneys must embrace the principles and tenets of therapeutic jurisprudence as a means of best ensuring the dignity of their clients and of maximizing the likelihood that voice, validation and voluntariness – the basic precepts of TJ – will be enhanced, and further believe that a rejection of the traditional civil commitment court model and an embrace of the modern mental health court model is the single best way that this dignity can be provided to litigants in these courts.

This paper is an expansion of a presentation given by the author at the annual Therapeutic Jurisprudence Workshop at Osgoode Hall Law School, York University, Toronto, Ontario, Canada, October 15, 2016.

Perhaps we should just rename plea bargaining…we can call it Criminal Court Alternative Dispute Resolution…and with that change there will be a whole new acceptance of the practice. In the meantime, Charlie Gerstein has posted Plea Bargaining and Prosecutorial Motives (15 U.N.H. L. Rev. 1 (2016)) on SSRN.

Here is the abstract:

This Article argues that the structure of the plea-bargaining system — which the Supreme Court recently recognized “is the criminal justice system” — hinges on something previously unappreciated by scholars and unaddressed in criminal procedure doctrine: prosecutors’ motives. This Article addresses that problem by studying the prosecutor’s disclosure obligations when defendants plead guilty. Courts and commentators have been divided for years over whether Brady v. Maryland applies when defendants plead guilty. But the current split blinds us to more important, and more vexing, aspects of the problem. The fact is, there already is a disclosure obligation, albeit a hidden one. Armed with an understanding of the dormant disclosure obligation, this Article then addresses tricky issues surrounding this problem and, in doing so, exposes the centrality of prosecutorial motives, which existing scholarship has not addressed. A full understanding of the role of prosecutorial motives in the plea-bargaining system solves several existing doctrinal puzzles — chief among them whether defendants can waive their right to disclosure — yields workable definitions of concepts like “impeachment” and “materiality,” and addresses issues that go to the heart of the plea-bargaining system.