This new paper, authored by Reid Weisbord and George Thomas, is available via 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.

David B. Wexler (University of Puerto Rico – School of Law) has posted Getting Started with the Mainstreaming of Therapeutic Jurisprudence in Criminal Cases: Tips on How and Where to Begin (14 Revista Española de Investigación Criminológica (2016)) on SSRN.

Here is the abstract:

Therapeutic Jurisprudence (“TJ”) is a perspective that looks at the law itself as a potential therapeutic (or anti-therapeutic) agent. Under TJ, the “law” consists of legal rules and procedures as well as the practices and techniques of legal actors (judges, lawyers, therapists and others) working in a legal environment. TJ is best known for its use in special ‘problem-solving courts’, such as drug treatment courts and mental health courts. Now, however, an effort is being made – internationally – to “mainstream” TJ: to bring therapeutic jurisprudence practices into the “ordinary” criminal justice legal system. The current monograph offers a guide to how the mainstreaming project should proceed, and, especially, offers some suggestions for where in the process we might most profitably begin.

Recently, Justice Sotomayor spoke in St. Paul at an event for Hispanic middle and high school students that was put together by the Federal Bar and the Minnesota Hispanic Bar Associations. A video was created by John Connelly of Legal Filmworks Unlimited, called Someone Like Me Can Do This, to be shown to the students and attendees at the event.

The video is about 30 minutes long. It is terrific. 

Michael Tonry (University of Minnesota – Twin Cities – School of Law) has posted Solving the Multiple Offense Paradox (More than One Crime: Sentencing the Multiple Offender (Jesper Ryberg, Julian V. Roberts & Jan de Keijser eds., Oxford University Press, 2017 Forthcoming)) on SSRN.

Here is the abstract:

Retributive and most mixed theories of punishment provide little guidance for sentencing people convicted of multiple offenses at one time — say 5 robberies, 5 sexual assaults, or 100 drug sales; or a robbery, a sexual assault, and 10 drug sales — or who were previously convicted. Judicial practice in Western countries is typically to discount punishments for multiple current convictions but, to different degrees, to punish successive convictions progressively more severely. Unpersuasive efforts have been made to justify those divergent patterns in ways that are reconcilable with retributive theories. What needs instead to be recognized is that principles derived from punishment theories cannot by themselves provide adequate complete justifications of adequate frames of reference for the complex social practice of punishment. Other principles relating to fairness, equality, and human dignity must be taken into account.

Americans’ views of how the criminal justice system is handling crime have shifted considerably over the past decade. Currently, 45% say the justice system is “not tough enough” — down from 65% in 2003 and even higher majorities before then. Americans are now more likely than they have been in three prior polls to describe the justice system’s approach as “about right” (35%) or “too tough” (14%).

Incarceration rates in the U.S. have soared over the past few decades, and political leaders, justice officials and reform advocates have sought criminal justice reform as a result. With this, Americans’ views of the criminal justice system have shifted with the national conversation, with less than a majority now saying the system is “not tough enough.” Although considerably higher than in the past, relatively few believe the system is “too tough.”

Views of the justice system’s toughness vary across racial and political party lines. The majority of Republicans and Republican-leaning independents say it is “not tough enough” (65%), with most of the rest describing it as “about right” (30%). Democrats and Democratic-leaning independents, on the other hand, are most likely to say the system is “about right” (42%), with the rest dividing about evenly between saying it is “too tough” (22%) or “not tough enough” (29%).

A majority of whites (53%) say the system’s handling of crime is “not tough enough,” while a third (32%) say it is “about right.” One in 10 whites say the system is “too tough.” Nonwhites — who as a group make up a disproportionate percentage of the U.S. incarcerated population — are more than twice as likely as whites to say the system is “too tough” (23%). They are also more likely than whites to say it is “about right” (40%). Meanwhile, 30% of nonwhites say the system’s handling of crime is “not tough enough.”

The full report from Gallup can be found here. 

‘Who Will Judge the Many When the Game is Through?’: Considering the Profound Differences between Mental Health Courts and ‘Traditional’ Involuntary Civil Commitment Courts

Michael L. Perlin 

New York Law School

October 27, 2016

Abstract:      

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. 

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. 

Increasingly, judges are recognizing that implicit bias training is critically important for their own professional development. But what do we need to do to address implicit bias of jurors? Are implicit bias instructions sufficient?

According to a story in The Washington Post, ” White and male victims often receive larger awards than people of color and women in otherwise similar ­cases, according to more than two dozen lawyers and forensic economists, the experts who make the calculations. These differences largely derive from projections of how much more money individuals would have earned over their lifetimes had they not been injured — projections that take into account average earnings and employment levels by race and gender.”

The full story can be found here.

Albert Woodfox, who spent four decades in solitary confinement before his release from a Louisiana prison earlier this year, says his first impression of race relations in America is that they haven’t changed much at all since 1970.

“Everybody  has fear,” says Albert Woodfox. “Fear is the soul telling the body that it’s in danger. Some people overcome that fear. I overcame it by having a cause. That’s what the party told me:  always be honourable, always serve the people.” Woodfox, now a grizzled 69-year-old, has had more reasons to be afraid than most, and when he says that he has known “more pain and suffering than any human being should be asked to suffer,” he is not exaggerating. At the hands of the American penal and judicial system he has endured wrongful imprisonment and deprivation of basic needs to a degree that seems outlandish in an advanced democracy. Yet his experience is not unique. It is an extreme version of something inflicted on thousands of others, and it is on behalf of these others that, he says, he continues to fight.”

The full article can be found here:  THE GUARDIAN

Orin Kerr has this interesting post at The Volokh Conspiracy. It begins as follows:

There has been a lot of press coverage recently about a search warrant obtained in Los Angeles allowing the government to force people present when the warrant is executed to press their fingers and thumbs on the fingerprint sensors of any phones or computers found there to unlock them. A lot of people have wondered: Is that legal? I don’t think there’s an easy answer to that. Here’s an overview of some of the legal issues.

There are people who lie to judges. Recently, a colleague of mine had a party/mother tell him that she was not living with a registered sex offender (it was a custody dispute)…and when the other party/father said to the judge, “that is him sitting in the audience!,” the man stood up and denied that his name was Mr. Thadious Jones (i.e., the name of the live-in boyfriend). The judge had a booking photo of the registered sex offender — and although it is plausible the man was a long lost identical twin, the more likely conclusion was the judge was lied to.

There is research that concludes judges are no better than others in determining who is telling the truth. Yet trial judges inherently must make credibility findings. This case, forwarded by Judge Wayne Gorman, illustrates challenges we face in making those credibility calls:

In MacKay v. MacKenzie, 2016 PECA 16, October 14, 2016, two neighbours became involved in a boundary dispute. The trial judge found in favour of Mackay. In doing so, the trial judge indicated in his reasons that he did not believe Mr. MacKenzie and that he did not believe the evidence of Mr. MacKenzie’s wife and sons.  The trial judge found that “the entire family lied under oath.”

On appeal, the Prince Edward Island Court of Appeal reversed the trial judge’s decision.  In doing so, the Court of Appeal suggested that a trial judge “must exercise great care before branding a witness, let alone his entire family, as liars” (at paragraphs 42 and 43): 

While the trial judge has the best perspective from which to assess credibility, and such assessments are due great deference, findings must be properly grounded.  A trial judge is free to accept or reject, in whole or in part, the testimony of any witness.  Rejection of a witness’ evidence does not necessarily mean that the witness is lying.  There are any number of reasons for rejecting the evidence of one witness and accepting the evidence of another, including that the honest witness was simply mistaken.

There are indeed occasions where it may be proper and necessary for a trial judge to label a witness a liar.  This, however, is not one of them.  The judicial determination that one is a liar can have a profoundly detrimental impact on a person’s reputation.  The person, so judged, has no defence to the judicial pronouncement filed on the public record.  A trial judge must exercise great care before branding a witness, let alone his entire family, as liars.

The trial judge’s determination was based, in part, on demeanor. The Court of Appeal indicated that a “determination that a witness is a liar should be supported by a rational explanation comprised of more than observations of the demeanor of a witness” (at paragraph 55).

Finally, the Court of Appeal indicated that “an undue amount of time elapsed between the trial and delivery of the reasons for judgment” (the trial commenced on August 20, 2014, and continued on October 9 and 10, 2014.  A decision was rendered on June 10, 2015).  The Court of Appeal suggested that the delay “could reasonably be perceived as compromising the recollection of the writer about the evidence at trial” (at paragraph 58).