Megan Stevenson has posted Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes on SSRN.

Here is the abstract:

Instrumenting for detention status with the bail-setting propensities of rotating magistrates I find that pretrial detention leads to a 13% increase in the likelihood of being convicted, an effect explained by an increase in guilty pleas among defendants who otherwise would have been acquitted or had their charges dropped. On average, those detained will be liable for $128 more in court fees and will receive incarceration sentences that are almost five months longer. Effects can be seen in both misdemeanor and felony cases, across age and race, and appear particularly large for first or second time arrestees. Case types where evidence tends to be weaker also show pronounced effects: a 30% increase in pleading guilty and an additional 18 months in the incarceration sentence. While previous research has shown correlations between pretrial detention and unfavorable case outcomes, this paper is the first to use a quasi-experimental research design to show that the relationship is causal.

Peter A. Joy and Kevin C. McMunigal (Washington University in Saint Louis – School of Law and Case Western Reserve University School of Law) have posted Racial Discrimination and Jury Selection on SSRN.

Here is the abstract:

In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.

Brady’s Blind Spot: Impeachment Evidence in Police Personnel Files and the Battle Splitting the Prosecution Team

Jonathan Abel 

Stanford Law School – Constitutional Law Center

April 1, 2015

67 Stan. L. Rev. 743 (2015) 

Abstract:      

The Supreme Court’s Brady doctrine requires prosecutors to disclose favorable, material evidence to the defense, but in some jurisdictions, even well-meaning prosecutors cannot carry out this obligation when it comes to one critical area of evidence: police personnel files. These files contain valuable evidence of police misconduct that can be used to attack an officer’s credibility on the witness stand and can make the difference between acquittal and conviction. But around the country, state statutes and local policies prevent prosecutors from accessing these files, much less disclosing the material they contain. And even where prosecutors can access the misconduct in these files, their ability to disclose this information, as required by the Constitution, is constrained by the efforts of police officers and unions who have used litigation, legislation, and in-formal political pressure to prevent Brady’s application to these files. Suppression of this misconduct evidence can cost defendants their lives, but disclosure can also be costly. It can cost officers their livelihoods.

Using interviews with prosecutors, police officials, and defense attorneys around the country, as well as unpublished and published sources, this Article provides the first account of the wide disparities in Brady’s application to police personnel files. It argues that critical impeachment evidence is routinely and systematically suppressed as a result of state laws and local policies that limit access to the personnel files and as a result of the conflict within the prosecution team over Brady’s application to these files. Further, the Article challenges Brady’s assumption that prosecutors and police officers form a cohesive “prosecution team,” and that, in the words of the Supreme Court, “the prosecutor has the means to discharge the government’s Brady responsibility if he will” by putting in place “procedures and regulations” to bring forth information known only to the police. Finally, the Article contends that privacy protections for police misconduct are incompatible with core aspects of the Brady doctrine and that systems that attempt to balance Brady against police privacy wind up sacrificing the former to the latter. As both a doctrinal and a normative matter, police misconduct should receive no protections from Brady’s search and disclosure obligation. 

The National Archives and the Law Library of Congress are hosting a Wikipedia edit-a-thon for the proposed amendments to the U.S. Constitution at the National Archives Innovation Hub on Friday, July 29 from 10:00 am to 5:00 pm.

The edit-a-thon is part of the “Amending America” initiative at the National Archives, which celebrates the 225th anniversary of the Bill of Rights with an exhibit and a series of National Conversations on Rights and Justice.

There are a variety of great resources that people can draw from for the event.  The National Archives published the dataset of more than 11,000 proposed constitutional amendments to data.gov.

A Century of Lawmaking For a New Nation contains U.S. Congressional Documents and Debates from 1774-1873.  There are also many items that you can search and find in Congress.gov.

Dina Herbert, from The Innovation Hub at the National Archives, set up a page with more details about the event.  Feel free to add your name as a remote or on-site attendee.

This is the first in what we hope is a series of collaborative edit-a-thons between our two institutions.

On July 28, 1868, the Fourteenth Amendment to the US Constitution, granting citizenship to former slaves and protecting due process of law and equal protection of laws in the States, was ratified.

The Fourteenth Amendment contains a number of important concepts, most famously:  state action, privileges & immunities, citizenship, due process, and equal protection—all of which are contained in Section One.

However, the Fourteenth Amendment contains four other sections.  Section Two deals with the apportionment of representatives to Congress.  Section Three forbids anyone who participates in “insurrection or rebellion” against the United States from holding federal office.  Section Four addresses federal debt and repudiates debts accrued by the Confederacy.  Section Five expressly authorizes Congress to enforce the Fourteenth Amendment “by appropriate legislation.” 

Perry L. Moriearty

University of Minnesota – Twin Cities – School of Law

July 4, 2016

UC Davis Law Review, 2016

Abstract:     

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments — forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held. In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation – a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively. While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.

Nancy J. King and Ronald F. Wright (Vanderbilt University – Law School and Wake Forest University – School of Law) have posted The Invisible Revolution in Plea Bargaining: Managerial Judging and Judicial Participation in Negotiations (Texas Law Review, Forthcoming) on SSRN.

Here is the abstract:

This article, the most comprehensive study of judicial participation in plea negotiations since the 1970s, reveals a stunning array of new procedures that involve judges routinely in the settlement of criminal cases. Interviewing nearly 100 judges and attorneys in ten states, we found that what once were informal, disfavored interactions have quietly, without notice, transformed into highly structured, best practices for docket management. We learned of grant-funded, problem-solving sessions complete with risk assessments and real-time information on treatment options; multi-case conferences where other lawyers chime in; settlement courts located at the jail; settlement dockets with retired judges; full-blown felony mediation with defendant and victims; felony court judges serving as lower court judges, and more. We detail the reasons these innovations in managerial judging have developed so recently on the criminal side, why they thrive, and why some judges have not joined in. Contrary to common assumptions, the potential benefits of regulated involvement of the judge include more informed sentencing by judges, as well as less coercion and uncertainty for defendants facing early plea offers. Our qualitative evidence also raises intriguing hypotheses for future research.

Jacob Gershman has an interesting post in the LawBlog of The Wall Street Journal on a recent Michigan case. If followed by other states, the opinion could be significant.

Convicted felons may not be sentenced through videoconferencing but must be given the opportunity to look a judge in the eye, a state appeals court has ruled.

Citing Marshall McLuhan’s famous observation that “the medium is the message,” a Michigan appeals court said a trial judge failed to acknowledge the humanity of a drug offender who watched remotely from a jail as a judge on a screen handed down his sentence from a courtroom.

The appeals court said that while “two-way interactive video technology” saves courts time and money, the practice disrespects the dignity of the defendant.

Hundreds of courtrooms in Michigan are equipped with videoconferencing, and state court rules permit the technology to be used for arraignments, at sentencings for misdemeanor offenses and in other settings. The rules are silent about whether it can be deployed at a felony sentencing.

Former Judge Abner Mikva passed away recently. He was a remarkable man having served in Congress, served as the Chief Judge on the DC Circuit and briefly as White House Counsel. The Marshall Project had this short piece about him:

On Nov. 16, 1994, Mikva gave a lecture, “The Treadmill of Criminal Justice Reform,” at the Cleveland-Marshall College of Law in Ohio. Mikva’s lecture was delivered two months after President Bill Clinton signed the Violent Crime Control and Law Enforcement Act of 1994 and a year and a half before he would sign the Antiterrorism and Effective Death Penalty Act of 1996. The former helped accelerate mass incarceration while the latter stripped habeas corpus appeals of considerable force.

Judge Mikva’s lecture is well worth reading…and perhaps we would all be better off had more people read it when it was delivered.

Perry L. Moriearty

University of Minnesota – Twin Cities – School of Law

July 4, 2016

UC Davis Law Review, 2016

Abstract:     

Over the last fourteen years, the Supreme Court has issued five decisions that impose substantive constraints on our harshest punishments — forbidding the execution of those with “mental retardation” in Atkins v. Virginia, of juveniles in Roper v. Simmons, and of those convicted of child sexual assault in Kennedy v. Louisiana, and forbidding the sentence of life without parole for juveniles who had not killed in Graham v. Florida and for all juveniles when it is imposed mandatorily in Miller v. Alabama. Because the offenders in question were categorically less culpable, the proscribed punishment was disproportionately severe, the Court held. In many respects, these decisions reinvigorated the Court’s substantive proportionality jurisprudence, which had been virtually dormant for two decades. Yet, three of the five decisions simply have not yielded in practice what they promised in principle. The implementation of Atkins, Graham and Miller has been so protracted, litigious and encumbered by procedural obstacles that, of the nearly 3,000 inmates nominally impacted by the decisions, only a fraction has been relieved of their sentences. In the meantime, inmates with IQs of 61 have been executed, and others have died waiting to hear whether the Court’s decisions apply retroactively.

This Article argues that, despite its transformative potential, the Court’s contemporary proportionality jurisprudence has been diminished in scope and potency in the course of its implementation – a dynamic that has been called “slippage.” In many respects, the “slippage” of these mandates can be attributed to the decisions themselves, which are deregulatory and, in concert with the Court’s broader efforts to limit federal court jurisdiction over state criminal justice processes, tie the scope of relief to the political whims and majoritarian preferences of the States. On some issues, the procedural docility of these decisions has proven so problematic that the Court has twice within the last two years had to intervene, striking portions of Florida’s capital sentencing scheme in 2014 and, just weeks ago, declaring in Montgomery v. Louisiana that Miller does in fact apply retroactively. While the Court’s reluctance to regulate the implementation of its proportionality mandates may be rationalized as necessary deference to the principles of federalism and finality, these justifications are far less compelling in the Eighth Amendment context. The very establishment of federal habeas, executive clemency, and Supreme Court review suggests that the Framers themselves recognized that there are normative points when interests in federalism and finality simply must yield. By contrast, the risk of offending constitutional norms through slippage may be at their most pronounced since one of the Eighth Amendment’s primary purposes is to protect the politically powerless from government overreach. I conclude that, if the Court is serious about implementing in practice the substantive constraints on punishment it has imposed over the last fourteen years, it must accompany its substantive mandates with a minimum threshold of procedural prescription.