Gabriel J. Chin and Charles Vernon (University of California, Davis – School of Law and University of Arizona – James E. Rogers College of Law) have posted Reasonable But Unconstitutional: Racial Profiling and the Radical Objectivity of Whren V. United States (George Washington Law Review, Vol. 83, No. 3, April 2015) on SSRN.

Here is the abstract:

In Whren v. United States, the Supreme Court held, unanimously, that Fourth Amendment analysis was so radically objective that an otherwise legitimate search or arrest would not be invalidated even if an officer’s decision to act was based on race. Although the Court has adhered to the view that the Fourth Amendment is applied objectively, the controversy over Whren’s practical legitimation of racial profiling has only grown over time. This Article argues that it has become clear that Whren was wrongly decided, for reasons courts and scholars have not previously articulated.

First, the Court never explained why it created a rule making motivation absolutely irrelevant when there was a readily available alternative, namely applying the standard applicable to review of prosecutorial discretion. Prosecution decisions are unassailable, unless they are based on unconstitutional grounds. The Court did not have to approve racial profiling to preserve the broad scope of legitimate law enforcement discretion. Second, since Whren, the Court has elaborated the reasons for an objective approach; these include grounds such as holding officers to objectively high standards and promoting even-handed law enforcement. The Court’s aims would be promoted by prohibiting race-based searches whereas they are undermined by allowing them. Most fundamentally, searches or arrests motivated by race are “unreasonable” under the Fourth Amendment. First, based on the Court’s precedents, other provisions of the Constitution inform Fourth Amendment reasonableness. A search based on motives violating other parts of the Constitution is therefore unreasonable. Second, under the fruit of the poisonous tree doctrine, a search is unreasonable if it rests on an antecedent constitutional violation. Unless the Equal Protection Clause is a distinctly unimportant part of the Constitution, a proposition the Court has rejected, its violation should trigger application of the doctrine, just like violations of other provisions. Application of these principles would minimally affect police discretion, and it would remain difficult to prove that police engaged in illegal racial profiling. But, it would also eliminate Whren’s unfortunate and influential statements that racial discrimination is constitutionally reasonable.

Professor Doug Berman has this post at Sentencing Law & Policy, excerpting an A.P. story.  From the excerpt:

Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn’t been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids….

South Dakota’s 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].

. . .

An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota’s program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. “These are large reductions when you consider that we’re talking about the community level,” said Beau Kilmer, who conducted the study and continues to research the program.

Over 50 years ago the United States Supreme Court held in Brady v. Maryland that prosecutors had a duty to disclose exculpatory evidence. In Brady, the United States Supreme Court observed that “our system of the administration of justice suffers when any accused is treated unfairly.” Seeking to alleviate unfair treatment, the Court held that “the suppression by the prosecution of evidence favorable to an accused . . . violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Id.

One might reasonably think, why would it take a United States Supreme Court decision to tell prosecutors – whose obligation is to seek justice – that failing to disclose favorable evidence to the accused heightens the risk justice will not be achieved? Surely this principle would 50 years later be ingrained into the fabric of the legal profession. But, sadly it is not. For example, officials at the U.S. Department of Justice are pushing back against recent criticism about prosecutors’ ethics from Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit.

Kozinski wrote in a law journal article this summer that there were “disturbing indications that a non-trivial number of prosecutors” had committed misconduct, such as misleading juries, lying and helping police present false evidence. He quoted from a 2013 opinion in which he wrote that there was an “epidemic” of prosecutors shirking their obligation to turn over potentially favorable evidence to defense lawyers.

Justice Department officials wrote a public letter refuting statements that Kozinski made in the article, which was published as a preface to the Georgetown Law Journal Annual Review of Criminal Procedure.

“Judge Kozinski goes too far in casting aspersions on the men and women responsible for the administration of justice in this country,” Associate Deputy Attorney General Andrew Goldsmith and U.S. Attorney John Walsh of Colorado wrote. They concluded in the letter: “We respectfully dissent.”

There are two reasonably undeniable truths. First, the “overwhelming majority” of prosecutors honor their legal and ethical obligations, including the requirement that they turn over potentially favorable information to defense lawyers. Second, there are far too many cases where the first undeniable truth does not happen.

Scott Howe (Chapman University, The Dale E. Fowler School of Law) has posted The Perilous Psychology of Public Defending (2015 Journal of the Professional Lawyer pp. 157-175) on SSRN.

Here is the abstract:

This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of certain guilty offenders, such as murderers or child molesters, but to representation of those who claim to be innocent and especially those who actually seem to be innocent, where a full-blown defense, through trial, would be expected to require an extraordinary commitment of time and effort from an overtaxed public defender.

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 Innocent Defendants Pleading Guilty (30 Crim. Just. 45 (Spring 2015)) on SSRN.

Here is the abstract:

United States District Judge Jed Rakoff recently wrote an interesting and timely article in the New York Review of Books highlighting the risk of innocent defendants pleading guilty and offering a proposal aimed at reducing this risk. (Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. BOOKS, NOV. 20, 2014). Judge Rakoff recommends changing the Federal Rules of Criminal Procedure to allow federal magistrate judges to participate in plea negotiations early in criminal cases just as they now participate in settlement negotiations in civil cases. In this column we examine the reasons why we share Judge Rakoff’s concern and offer an assessment of his proposal.

There are some prolific judges who use Twitter. For example, since joining Twitter in 2009, Texas Justice Willett has written more than 12,800 tweets. That doesn’t put him anywhere near the most prolific Twitter users, but, by his own reckoning, it does make him “probably the most avid judicial tweeter in America — which he said, “is like being the tallest munchkin in Oz.”

There are also courts that use Twitter, the most recent of which to employ Twitter is Colorado.  The Colorado Supreme Court, Court of Appeals, and Office of the State Court Administrator all launched Twitter accounts, and to mark the occasion issued this news release:

The Colorado Supreme Court, Court of Appeals and Office of the State Court Administrator have taken to Twitter as a portal to communicate with the media and public about breaking news, the work of the Courts, and ongoing community education initiatives.

“Social media platforms such as Twitter have proven to be powerful and useful communication tools with deep reach to broad audiences,” Colorado Supreme Court Chief Justice Nancy Rice said. “I believe that Twitter will enhance our outreach and communication efforts as we pursue our mission to educate Coloradans about the roles, responsibilities and actions of our Courts.”

The Colorado Supreme Court (@CoSupremeCourt) will Tweet case announcements, oral argument schedules, proposed and adopted rule changes, committee actions, events like Courts in the Community hosted by the Justices, and other information related to the operation of the Supreme Court.

The Colorado Court of Appeals (@CoCourtAppeals) will also Tweet case announcements and oral argument schedules, as well as changes to any Court protocols and policies, Court outreach initiatives and events, and other important information related to the Court of Appeals.

The statewide Judicial Twitter handle (@CoCourts) will be used by the Office of the State Court Administrator, as well as Colorado’s District and County Courts, and will provide information on high-profile cases, press releases, media alerts, courthouse closures and delayed openings, judicial vacancies, career opportunities, jury information and other timely news.

In addition to Colorado Judicial’s robust Website, the Courts and Probation also have a presence on LinkedIn and Facebook. The Court’s public information officer, Rob McCallum, began using Twitter in 2012 as a way to communicate with the media and public about high-profile cases. McCallum will continue using his Twitter account (@rwmccallum) to complement the Courts’ accounts.

So no reader has to actually count the characters in the press release, this much is quite clear: the press release is 1846 characters too long for a Twitter posting…but then again, Colorado is new to Tweeting.

A new Brennan Center report analyzed 2015 crime data from the nation’s 30 largest cities and found that reports of a nationwide crime wave are unsupported. In fact, crime overall in 2015 is projected to be about 1.5 percent lower than last year. While murder rates are projected to be slightly higher than in 2014, the historically low baseline for murder means that a small increase in the number of murders can result in a percentage increase that seems more troubling than it should — and lends itself to shocking headlines. “The average person in a large urban area is safer walking on the street today than he or she would have been at almost any time in the past 30 years,” wrote authors Matthew Friedman, Nicole Fortier, and James Cullen. Several cities, including Milwaukee and St. Louis, have unusually high murder rates but also share significantly lower incomes, higher poverty rates, higher unemployment, and falling populations compared to the national average, while showing no indication of being part of a national trend.

Read more at Mother Jones, The New Republic, and Vox.

Jennifer L. Skeem and Christopher T. Lowenkamp (University of California, Berkeley and Government of the United States of America – Administrative Office of the U.S. Courts) have posted Risk, Race, & Recidivism: Predictive Bias and Disparate Impact on SSRN.

Here is the abstract:

One way to unwind mass incarceration without compromising public safety is to use risk assessment instruments in sentencing and corrections. These instruments figure prominently in current reforms, but controversy has begun to swirl around their use. The principal concern is that benefits in crime control will be offset by costs in social justice — a disparate and adverse effect on racial minorities and the poor. Based on a sample of 34,794 federal offenders, we empirically examine the relationships among race (Black vs. White), actuarial risk assessment (the Post Conviction Risk Assessment [PCRA]), and re-arrest (for any/violent crime). First, application of well-established principles of psychological science revealed no real evidence of test bias for the PCRA — the instrument strongly predicts re-arrest for both Black and White offenders and a given score has essentially the same meaning — i.e., same probability of recidivism — across groups. Second, Black offenders obtain modestly higher average scores on the PCRA than White offenders (d = .43; appx. 27% non-overlap in groups’ scores). So some applications of the PCRA could create disparate impact — which is defined by moral rather than empirical criteria. Third, most (69%) of the racial difference in PCRA scores is attributable to criminal history — which strongly predicts recidivism for both groups and is embedded in sentencing guidelines. Finally, criminal history is not a proxy for race — instead, it fully mediates the otherwise weak relationship between race and re-arrest. Data may be more helpful than rhetoric, if the goal is to improve practice at this opportune moment in history.

Teams from all 50 states convened for a two-day event in Austin, Texas on November 9-10, “Improving Outcomes for Youth in the Juvenile Justice System: A 50-State Forum,” to build on successful juvenile justice reforms and to take aim at their next challenge:  lowering re-arrest rates and ensuring youth in contact with the juvenile justice system are being positioned for success later in life.

In conjunction with the forum, the Council for State Governments Justice Center released a number of products and tools to support state and local juvenile justice systems to develop and effectively implement system-wide plans to improve outcomes for youth:

· Interactive Recidivism Reduction Checklists can guide state and local officials to assess whether policy, practice, and resource allocation decisions are aligned with the research on “what works.”

· Locked Out: Improving Educational and Vocational Outcomes for Incarcerated Youth shares the results of an unprecedented survey of juvenile correctional agencies in all 50 states to understand the extent to which states provide incarcerated youth with access to educational and vocational services; track and use student outcome data, and support school reenrollment for these youth. This issue brief highlights key survey findings and provides state and local policymakers with policy and practice recommendations to improve college and career readiness for incarcerated youth.

· Reducing Recidivism and Improving Other Outcomes for Young Adults in the Juvenile and Adult Criminal Justice Systems is designed to help state and local officials better support young adults in the justice system. It identifies young adults’ distinct needs, summaries the limited research available on what works to address these needs, and provides recommendations for steps that policymakers, juvenile and adult criminal justice agency leaders, researchers, and the field can take to improve outcomes.

· The infographics series, Improving Outcomes for Youth, detail three critical challenges faced by states to improve outcomes for youth, identify the key questions that policymakers should ask, and offer strategies for protecting public safety and using resources more efficiently.

No state has as of yet amended their canons of judicial ethics, nor is their any evidence that merit selection commissions — in those states that have them — have included this requirement…but there is something interesting going on with lawyers.

The Supreme Court of New Hampshire entered an order adopting various amendments to court rules. In that order, a modified and less-stringent version of Comment 8 was adopted than that adopted by the ABA in Model Rule 1.1.  The New Hampshire Supreme Court adopted a New Hampshire Bar Association Ethics Committee comment that states:

“ABA comment [8] (formerly Comment [6]) requires that a lawyer should keep abreast of . . . the benefits and risks associated with relevant technology.” This broad requirement may be read to assume more time and resources than will typically be available to many lawyers. Realistically, a lawyer should keep reasonably abreast of readily determinable benefits and risks associated with applications of technology used by the lawyer, and benefits and risks of technology lawyers similarly situated are using.”

The New Hampshire change takes effect on January 1, 2016.

The other state that has adopted the duty of technology competence is New York.  It was adopted by the New York State Bar Association on March 28, 2015.  In New York, the Rules of Professional Conduct are promulgated by the Appellate Division of the Supreme Court, but the Appellate Division has not adopted any of the comments to the rules.  Instead, the NYSBA adopts and publishes comments “to provide guidance for attorneys in complying with the Rules.”

The version of Comment 8 adopted by the NYSBA differs from the ABA’s version. It says that a lawyer should:

“Keep abreast of the benefits and risks associated with technology the lawyer uses to provide services to clients or to store or transmit confidential information.”