Harvard Law School’s Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute announced  the Fair Punishment Project (FPP).

The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable.  The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. The announcement said:  

We’ll be releasing our first report in the next day or two, so keep an eye out — you don’t want to miss it.  Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America’s top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct. 

The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society.  The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers.  Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.

The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system.  We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time. Here are titles and links to some of the notable sentencing-related content already up at the FPP website:

• Challenging Juvenile Life Without Parole: Bell v. Arkansas
• What “The Ferguson Effect”, Crack Babies, & Superpredators Have in Common
• Life Without Parole – From Bad Lawyers to No Lawyer At All
• Racial Disparities Plague Nonviolent LWOP Sentences
• Report Finds Juvenile LWOP Sentences Concentrated in a Few Counties, Disproportionately Impact Youth of Color

Two Past Presidents of the American Judges Association have received  the Rehnquist Award. AJA members should take this announcement seriously.

NCSC seeks nominations for
William H. Rehnquist Award

An invitation from Mary McQueen, president of the National Center for State Courts (NCSC)

It is my pleasure to invite nominations for one of the nation’s highest judicial honors, the National Center for State Courts’ William H. Rehnquist Award for Judicial Excellence. This prestigious award recognizes a state court judge who demonstrates the outstanding qualities of judicial excellence exemplified by the late Chief Justice Rehnquist. Chief Justice John G. Roberts, Jr., will present the award at a dinner to be held at the United States Supreme Court on November 17, 2016. 

Nominating a candidate for the award is an excellent means of expressing appreciation to those who have served and have set an example worthy of recognition and emulation. You will find more information about the nominating process on our website at  www.NCSC.org/Rehnquist.

Please submit your nominations by Friday, June 17, 2016. 

In promising to enact all of the recommendations of the Truth and Reconciliation Commission, the federal Liberals have agreed to remove a section of law that allows parents to spank their kids without fear of prosecution.

Groups that oppose corporal punishment of children have spent many years urging successive governments in Ottawa to repeal Section 43 of the Criminal Code that permits parents and teachers to use reasonable force to correct the behaviour of youngsters in their care.

The Truth and Reconciliation Commission, which heard thousands of tales of physical abuse inside Indian residential schools, said in its final report that “corporal punishment is a relic of a discredited past and has no place in Canadian schools or homes.” The repeal of Section 43 was No. 6 on a list of 94 “calls to action” included in the report, which was made public last week.

When asked if Prime Minister Justin Trudeau’s promise to act on every TRC recommendation meant repealing the so-called spanking law, a spokesman for Justice Minister Jody Wilson-Raybould would only say the government remains committed to implementing all of the commission’s calls to action.

In 2004, the Supreme Court of Canada ruled that physical force was acceptable within certain bounds – it cannot be used on children under the age of 2, it cannot involve implements such as a paddle or a belt and blows to a child’s head are not allowed. Teachers and faith-based groups praised the decision, saying the people who are responsible for raising children must have the leeway to decide when moderate physical discipline is required.

Anna Roberts (Seattle University School of Law) has posted Conviction by Prior Impeachment (Boston University Law Review, (2016), Forthcoming) on SSRN.

Here is the abstract:

Impeaching the testimony of criminal defendants through the use of their prior convictions is a practice that is triply flawed: it relies on assumptions belied by data; it has devastating impacts on individual trials; and it contributes to many of the criminal justice system’s most urgent pathologies. Yet critiques are often paired with resignation. Abolition is thought too ambitious, because this practice is widespread, long-standing, and beloved by prosecutors. Widespread does not mean universal, however, and a careful focus on the states that have abolished this practice reveals arguments that overcame prosecutorial resistance and that intervening developments have strengthened. It also reveals decades of experience, from which both inspiration and best practices can be drawn.

The Washington Post recently had an interesting story about an opinion of the Supreme Court of Italy.  It begins:

Who can blame a homeless man for stealing a small amount of food from a grocery store? Certainly not Italy’s Supreme Court.

Five years ago, Ukrainian national Roman Ostriakov was homeless in Genoa when he was caught stealing cheese and sausage worth less than $5, the Telegraph reports. He was fined $115 and sentenced to six months in jail in 2015, a sentence that he appealed. On Monday, the Italian Supreme Court ruled in his favor.

“The condition of the accused and the circumstances in which he obtained the merchandise show that he had taken the little amount of food he needed to overcome his immediate and essential requirement for nourishment,” it ruled. “People should not be punished if, forced by need, they steal small quantities of food in order to meet the basic requirement of feeding themselves.”

The Italian newspaper La Stampa praised the verdict in a front-page editorial.

“The court’s decision reminds us all that in a civilised country no one should be allowed to die of hunger,” it read.

Corriere Della Sera noted in an opinion piece that statistics show the ranks of Italy’s poor grow by 615 people daily and that it was “unthinkable that the law should not take note of reality,” the BBC reports. The piece also took issue with how long the judicial system took to arrive at its final decision.

The full story is available here.

Noah Feldman is a professor of constitutional and international law at Harvard University.  He wrote an interesting commentary about a recent Seventh Circuit decision. It says, in part:

When was the last time you actually read the terms of service before clicking “I agree” on a website? Unless your answer is “never,” I don’t believe you — and I don’t think it’s your fault, either. But the U.S. Court of Appeals for the 7th Circuit has a subtler view than mine. On March 25, it held that you’re not bound by a contract if it wasn’t made clear that you were supposed to read it. But if it is made clear, the contract binds you, whether you read it or not.

The facts of the case were pretty outrageous, as these things go. Gary Sgouros signed up online to get his credit score with TransUnion Corp. When he went to a car dealership armed with his good credit score, they laughed him off. His actual score was 100 points lower than TransUnion had claimed.

Sgouros sued, claiming to represent a class of similarly misled clients. TransUnion said that he couldn’t sue because he’d agreed to submit any disagreement to binding arbitration as part of the terms of service on its site.

The district court rejected TransUnion’s argument, and the 7th Circuit agreed. The basis for the appeals court’s holding was that TransUnion’s site never actually made Sgouros look at or agree to the arbitration agreement. Instead, the website referred to a “service agreement” and accompanied the reference with a paragraph that said nothing about arbitration. Next to the service agreement box, the words “Printable Version” appeared. If you clicked that, you got a 10-page document that included the arbitration promise — on page 8.

Given the borderline deceptive nature of the website, the 7th Circuit had no trouble concluding that Sgouros hadn’t signed a contract. But the important part of the opinion wasn’t the conclusion that Sgouros could go forward with his suit against TransUnion without arbitration.

What mattered was the court’s explanation of why checking the website’s service agreement box was inadequate to form a contract — because that in turn would indicate what sort of consent by Sgouros would have formed a binding contract.

There may well be no one who is nicer, more committed, or more insightful about drug courts than Caroline Cooper (American University – School of Public Affairs – Justice, Law & Society). She has posted Drug Courts – Just the Beginning: How to Get Other Areas of Public Policy in Sync? Addressing Continuing Collateral Consequences for Drug Offenders on SSRN.

Here is the abstract:

This article is an update to an earlier article, prepared in 2003, examining five areas of public policy in the U.S., unconnected to criminal justice, that imposed significant – and generally lifetime – sanctions on drug court graduates regardless of their successful completion of a drug court program and termination from criminal justice supervision. At that time, the extensive research corroborating the effectiveness of drug courts in reducing drug use, recidivism and promoting long term recovery was just beginning to be disseminated, along with scientific findings relating to the neurobiology of addiction, its effects on the brain and cognitive functioning – all confirming that drug use was a generally a symptom of a chronic disease of the brain – far more than a “behavioral” issue and/or moral failing. Given these extensive research findings, as well as over a decade of drug court experience, an update of this article was prepared in 2015, to document progress made in reducing these areas of stigma – come to be subsequently referred to as “collateral consequences” – in light of the tremendous growth of drug courts since the article was first published in 2003, both in the U.S. and abroad, the widely documented effectiveness of these programs in stemming continued drug use and crime, and the growing body of research documenting the neuro-biological and physiological aspects of the disease of addiction for which treatment has proven effective and incarceration in and of itself has been increasingly documented to be counter-effective. 

The expectation, therefore, was that progress in removing stigma associated with addiction would have been significant during this past decade. The results, however, were the opposite. While there has been some progress, it has been slow and spotty, and the situation in 2015 can be characterized by continued stigma – and a wide array of collateral consequences – imposed by multiple sectors of public policy on individuals who have successfully completed drug court programs and which, in many instances, extend for their lifetime. Not only do the major areas of stigma described in the 2003 article continue but, in addition, numerous additional “collateral consequences” that hadn’t formally surfaced in 2003 were identified. Despite the momentum of criminal justice reform underway, collateral consequences imposed by noncriminal justice sectors continues with only spotty signs of abatement.

Keyboard-crafted emoticons and digital emoji are continuing to be an issue in court cases, where judges are asked to decide whether the symbols affect the meaning of texts and emails.

Emoticons such as “:-P” denoting a stuck-out tongue and “;)” denoting a wink are particularly tricky for courts, Slate reports in a story noted by Above the Law. Slate summarizes several cases, including these:

• A University of Michigan law student sued a female classmate who reported he was stalking and harassing her, along with the school and police for launching an investigation. No charges were ever brought. He argued his texts to a friend saying he wanted to make the classmate “feel crappy” and experience depression shouldn’t have been taken seriously, in part because he used an emoticon indicating a stuck-out tongue. A federal judge in Michigan found the emoticon didn’t materially alter the meaning of the text.

• In August, a Delaware judge interpreted a winking emoticon used in a text in which a man boasted about surprising a woman by purchasing a plane ticket so he could be seated next to her on a flight to Paris. The man said the wink showed he was joking; the judge said the emoticon showed he was amused by the opportunity to harass the woman.

• A Michigan appeals court ruled last year that a post to an online message board about corruption wasn’t defamatory because it included a tongue-out emoji, indicating the post was a joke.

• Lawyers for Anthony Elonis, convicted under a federal threats law for his Facebook posts, persuaded the U.S. Supreme Court that prosecutors had to prove intent in his prosecution. Part of Elonis’ defense was that his use of the stuck-out tongue emoticon showed he didn’t actually intend to harm his wife.

• A Texas man accused of a sexual assault in 2011 argued the victim had consented to sex, partly through texts using a winking face emoticon. The judge disagreed.

A new report from the Annie E. Casey Foundation examines the toll of parental incarceration. Currently 7% of children in the United States have experienced the incarceration of a parent. A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities offers commonsense proposals to address the increased poverty and stress that children of incarcerated parents experience. Along with the report, the Annie E. Casey Foundation’s recent CaseyCast explores the stigmas, struggles, and supports shaping this issue and how parental incarceration affects not just kids and their families — but entire communities.

From Judge Marcia Morey, in The News & Observer:

For some judges, presiding over traffic infractions cases is like watching paint dry. Other than more serious offenses like driving while impaired, the seemingly never-ending line of exasperated drivers lament to the judge their bad luck at getting caught.

The “speeder” protests: “No way I was going that fast.” Drivers with unfastened seat belts claim: “That cop couldn’t have seen through my window.” And the driver with an expired tag or registration resigns aloud: “Oops.”

Judges appear to be like Walmart cashiers endlessly repeating, “That’ll be $25 fine and $180 cost of court. Have a nice day, next …” The courtroom atmosphere has a faint presence of “justice” and feels more like a Duke Power bill collection office.

One day, as I presided over traffic court, Walter Smith (not his real name, but an actual case) appeared in front of me charged with driving on a revoked license. 

His license was revoked because he failed to pay a speeding ticket in 2013. In North Carolina, failure to pay a court-ordered traffic fine will result in an automatic suspension of a driver’s license. After 20 days went by and he could not pay the $180 court costs and $50 fine, the Department of Motor Vehicles automatically revoked his license. 

On March 1, Mr. Smith now had two problems: His old unpaid ticket and his license suspension. Appearing in front of me, he requested a public defender. I told him, I could not appoint him one, since it was the lowest level misdemeanor and that two years ago, the General Assembly changed the law whereby people charged with Class 3 misdemeanors were not eligible for court-appointed lawyers. I understood his frustration, but explained that he had to either hire his own lawyer or represent himself.

“Your Honor,” he protested, “I got picked up while driving to the grocery store. I was taken to jail because I didn’t pay that old ticket and y’all yanked my license. I have heart disease and can’t work. Now do you really think I can afford to hire my own lawyer? I need some help here.”

Walter Smith was standing in front of me in desperation, and there was nothing I could do to help him with his plea. I said, “Sir, I am very sorry. I have to follow the law which does not allow me to appoint you and attorney.

In a nutshell:  Jail became the punishment for poverty.

Read the full commentary here.