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Procedural Justice During a Pandemic   7 comments

Wow. It seems that the world has changed around us in a heartbeat. The changes are disruptive and unsettling. And that’s true for just about everybody—inside and outside the courthouse.

As judges and others connected to the justice system work through this, we are making orders and changes to how we handle cases that will have profound effects on people. The stakes are high, and the amount of time we can spend on individual cases will usually be—understandably at this moment—quite limited. Even so, we need to keep procedural-justice principles in mind; they represent the public’s expectations of us.

One of the core principles is that we need to be transparent and explain our decisions. Even in making orders on our own motion that change hearing dates and keep some orders in effect pending a postponed hearing, we can explain why we’re doing that. Some may respond that it’s obvious why we’re doing these things. But it may not be completely clear to all who are affected. We can at least provide some explanation for the decisions made, including the key considerations we took into account.

For example, in civil-protection-order cases, we may well be leaving a temporary ex parte order of protection in place for an extended period. Perhaps the order was unfair from the outset, having been based on a one-sided understanding of the situation. Even if the order is fair, the party on the receiving end—who has not yet been heard—may perceive its fairness differently. And now we’re leaving it in place without hearing from that party. We should at least provide an explanation of why we did that. And if possible, we should also provide some mechanism for written motions for relief in truly unjust circumstances. Doing that would meet two of the key procedural-justice principles—both providing an explanation and some forum in which we will listen to other viewpoints.

Another important principle of procedural justice is showing respect for those who are coming through or working in our court system. Let’s keep that one in mind too; there are creative ways to show respect for others. One is by recognizing that the demands on all of us may be quite different for a while. Many will be faced with the need to take care of children or other family members while still interacting with the courts. Texas trial judge Emily Miskel (@emilymiskel on Twitter) came up with a creative but respectful solution: an order suspending the normal business dress code for both in-person and remote appearances.

For practical and comprehensive information about handling court cases during this pandemic, check out the National Center for State Courts website, http://www.ncsc.org.

One more thing: take care of yourself. You can’t do a good job making decisions for others unless you take care of yourself.

There’s a book I reviewed a few years ago by law professors Nancy Levit and Doug Linder called The Happy Lawyer: Making a Good Life in the Law. My review focused on how judges could use the research found there to be better judges. Levit and Linder reported that the two biggest factors in improving happiness were control and social connections. Judges usually have control of lots of the things we do, and trial judges often have ample opportunity for social interactions. This pandemic is quickly turning all of that on its head. We seem to lose control hour by hour, day by day, of more and more of what’s going on in our daily activities. And we also are losing our social connections.

Yet as judges, we still must make decisions that will have significant effects on other people’s lives. We need to be sure we remain in the mental and emotional shape to do that well.

Social psychologist Pam Casey, Kevin Burke, and I put together an article about how judges generally can be at the top of their mental game. Give some consideration to what you may need to do right now to keep yourself in the right mental frame to be your best as a judge.

I only realized this morning that part of what was both distracting and annoying me was the loss of control. I realized that when I found myself ironing the no-iron shirts that come out of the dryer in almost-good-enough shape. Some of them could use just a touch of the iron, but usually I don’t go there. Today I did—with starch. I realized that this was just something I could control. It was a little thing, but I needed it today. And I’m grateful that the experience helped me to step back and think more about what’s going on and how I can best deal with it.

With a quick check back at what Levit and Linder had taught me, I saw how this fit into a bigger picture. I’ll think more now about how to keep a sense of control and some social connections as I work through the next weeks or months. I hope you will think about what you need to do for you too; we need our judges at the best they can be right now.

These are some of my thoughts. I, like you, have little training for a moment like this. I welcome your thoughts and suggestions in the comments.

Good luck to all of us as we work through these times, day by day, courthouse by courthouse.—Steve Leben

Posted March 16, 2020 by Steve Leben in Uncategorized

Procedural Justice on Appeal   Leave a comment

University of Florida law professor Merritt McAlister has just published an article considering the use of unpublished decisions in federal appellate courts through a procedural-justice lens. The article is in the Michigan Law Review and is entitled, “Downright Indifference”: Examining Unpublished Decisions in the Federal Courts of Appeals. Every appellate judge should read it.

Professor McAlister has filled an enormous gap in the procedural-justice literature: she is the first scholar to bring both data and a procedural-justice lens to the appellate courts. For those who want to start with a summary, here’s the abstract McAlister provided in the article:

Nearly 90 percent of the work of the federal courts of appeals looks nothing like the opinions law students read in casebooks. Over the last fifty years, the so-called “unpublished decision” has overtaken the federal appellate courts in response to a caseload volume “crisis.” These are often short, perfunctory decisions that make no law; they are, one federal judge said, “not safe for human consumption.”

The creation of the inferior unpublished decision also has created an inferior track of appellate justice for a class of appellants: indigent litigants. The federal appellate courts routinely shunt indigent appeals to a second-tier appellate process in which judicial staff attorneys resolve appeals without oral argument or meaningful judicial oversight. For the system’s most vulnerable participants, the promise of an appeal as of right often becomes a rubber stamp: “You lose.”

This work examines the product of that second-class appellate justice system by filling two critical gaps in the existing literature. First, it compiles comprehensive data on the use of unpublished decisions across the circuits over the last twenty years. The data reveal, for the first time, that the courts’ continued—and increasing—reliance on unpublished decisions has no correlation to overall caseload volume. Second, it examines the output of the second-tier appellate justice system from the perspective of the litigants themselves. Relying on a procedural justice framework, this work develops a taxonomy of unpublished decisions and argues for minimum standards for reason-giving in most unpublished decisions.

McAlister categorizes unpublished opinions into four categories: (1) the publishable decision, (2) the memo decision, (3) the avoidant decision, and (4) the Kafkaesue decision:

  • A publishable decision has all the elements of one that could have been published. While perhaps it should have been published, it has an explanation to the parties that satisfies procedural-justice principles.
  • The memo decision is shorter and may leave out some facts—thus making it different than a published opinion. But it still identifies the issues on appeal and explains why the appellant’s arguments succeed (or, more often, fail). So these too satisfy procedural-justice principles.
  • The avoidant opinion is issued in a case involving complex issues and sometimes even after oral argument. But the opinion avoids discussion of the difficult issues. McAlister cites an Eleventh Circuit opinion in which the court heard oral argument on an issue that had split other circuits 6 to 4. After 16 months, the court’s opinion said: “Having heard oral argument and carefully reviewed the record, we find no reversible error in the district court’s order dismissing plaintiff’s § 1983 false arrest claims against the above officers. We therefore AFFIRM the district court’s order of dismissal.” Even a person with limited imagination can tell that the losing party will not have felt that the case—and the claim—were taken seriously. This opinion doesn’t satisfy any procedural-justice principles.
  • The Kafkaesque opinion may be issued in any sort of case and comes with no reasoning whatsoever. Often, it’s a single word: “Affirmed.” McAllister notes that the Eight Circuit issued half of its opinions in this way in the year ended Sept. 30, 2018; federal data showed half of the Eighth Circuit’s opinions that year as unsigned opinions, issued without comment on the merits. These opinions clearly satisfy no procedural-justice principles.

McAlister argues that every opinion should have at least these required elements to meet procedural-justice standards: “(1) identify the issues on appeal; (2) explain the relevant law; and (3) apply that law to key facts.” Even if that adds to judicial workload, she argues, meeting those requirements is necessary to make sure that litigants feel heard: “How can that [increased workload] possibly be a bad thing, given that the decision has persuasive value and affects someone’s life?”

I’ll admit to some mixed emotions reading McAlister’s article. She rightly noted in her article that it filled a rather large gap in the literature. I’d noticed that too, and I have a 37-page draft article (“Getting It Right Isn’t Enough: The Appellate Court’s Role in Procedural Justice”) that I’ve been working on. But even though it’s back to the drawing board for me (sigh), I am thoroughly impressed with—and appreciative of—the work McAlister has done.

It’s far too easy over time for judges to become isolated from the people who read our opinions. And appellate judges are largely isolated from the parties in the cases before us. But a reminder of the procedural-justice implications of a limited work product is important. Professor McAllister’s article should be a game-changer. I hope that appellate judges will carefully consider her recommendations.—Steve Leben

Posted February 18, 2020 by Steve Leben in Uncategorized

A New Blogger—and an Overview of Procedural-Fairness Resources   Leave a comment

I’m happy to introduce a new judge who will help to bring some new perspectives to this Procedural Fairness Blog. And I also want to provide an overview to the resources you can find on our connected websites to learn more about how to make people feel they have been fairly treated in court.

Our new blogger is Judge Pierre Bergeron, who is a judge on Ohio’s First District Court of Appeals, which handles state-court appeals in the Cincinnati area. With just over a year on the bench, Judge Pergeron has those not-yet-distant memories of client reactions to legal proceedings and how things look from the outside. He will add an important new perspective here. He and I plan to provide regular postings throughout 2020.

Let me turn now to what’s available here on this blog and our connected websites. A good starting point is the Bench Card on Procedural Fairness, which we put out in 2018. Cosponsored by the American Judges Association, National Center for State Courts, Center for Court Innovation, and National Judicial College, the bench card puts on two pages the key principles of procedural fairness, tips for trial judges, and links to the leading articles explaining these concepts for a judicial audience.

Beyond that, we have our main website, ProceduralFairness.org, which has links to research papers in both the court and law-enforcement contexts, information about how procedural-fairness concepts have been implemented in courts throughout the United States, and links to other websites in the area.

We also have a set of audio and video resources at ProceduralFairnessGuide.org:

  • On the front page, you’ll find four video scenarios—all based on real situations—that could come up in court or in the courthouse. Each scenario is accompanied by a list of discussion questions and links for more information related to that scenario.
  • On another tab, we have 11 video interviews with national leaders in procedural fairness. These interviews were done on behalf of the American Judges Association. As a starting point, go to the interviews with Tom Tyler and Emily Gold LaGratta. Prof. Tyler has been the academic leader in this area for decades, and he provides an overview of the basic concepts as well as some of the insights he’s gained over his extended research. LaGratta describes the work she did with the Center for Court Innovation in pilot projects and training programs.
  •  On a final tab, we have 9 audio podcasts put together by Justine Greve, who used to be a member of my staff at the Kansas Court of Appeals. The first three podcasts are excerpts from the American Judges Association video interviews. She organizes what the various speakers had to say by topic area. The first one suggests ways judges can improve their communication from the bench; another talks about using procedural-fairness principles in rating and training judges; a third explains how procedural fairness functions as the central measure for judging whether an authority is legitimate. For the other six podcasts, Greve interviewed authors of recent articles of interest in the area. These podcasts will provide a great introduction to their research. If you want more, a link to the publication is also included.

This is only a brief overview of what we’ve got available. In later postings, I’ll talk about some of the other materials you might find of use.—Steve Leben

 

Posted January 27, 2020 by Steve Leben in Uncategorized

New Bench Card for Trial Judges   1 comment

Four national court organizations released a Procedural Fairness Bench card for trial judges today. The bench card can be found under the new “Bench Card” tab on the front page of our website, ProceduralFairness.org. Or you can just click this link to go directly to the bench card. It’s also being printed as the back cover of the issue of Court Review that’s now in the mail to American Judges Association members.

The bench card is a joint product of the American Judges Association, the Center for Court Innovation, the National Center for State Courts, and the National Judicial College.

The bench card tries to answer the key questions a trial judge might have about procedural fairness (also known as procedural justice):

  • What is it? It’s a set of evidence-based practices that lead to better acceptance of court decisions, a more positive view of individual courts and the justice system, and greater compliance with court orders. The bench card begins by explaining six closely connected elements of procedural fairness.
  • Why is it important? Rigorous studies have shown that both acceptance of court decisions and overall approval of the court system are much more closely connected to perceptions of procedural fairness than to other factors.
  • Can it be measured? Yes, and the bench card provides links to measurement tools that judges and courts can use.
  • How do I do it? One full side of the bench card describes specific things trial judges can do to practice procedural fairness in court.
  • Where can I get more information? The bench card also provides links to websites that provide more in-depth materials and to six specific publications.

 

Michigan judge provides clinic on showing compassion to crime victims at sentencing   8 comments

Michigan trial judge Rosemarie Aquilina is presiding over the sentencing hearing for Lawrence Nassar, the former doctor for U.S.A. Gymnastics. But she’s also running what amounts to a demonstration clinic on how to show compassion to crime victims at sentencing.

The New York Times has a front-page article today on the sentencing hearing, now in its second week. The article is filled with statements Judge Aquilina has made to victims:

  • “Thank you. What would you like me to know?”
  • “Leave your pain here, and go out and do your magnificent things.”
  • “You are so strong and brave.”
  • “The military has not yet come up with fiber as strong as you.”
  • “Mattel ought to make toys so that little girls can look at you and say, ‘I want to be her.'” Thank you so much for being here, and for your strength.”

I’ve taught Tom Tyler’s four elements of procedural fairness now for many years: (1) voice, (2) respect, (3) neutrality, and (4) trust/trustworthy authority. Ultimately, you want court participants to feel that they’ve had the opportunity to speak, were treated with respect, and listened to. You also want them to feel that the person wielding the authority is sincere and caring, genuinely out to do the right thing.

Judge Aquilina seems to have hit it out of the park in making sure that victim voices were heard, giving them every ounce of closure that a sentencing hearing can provide, and conveying the very real sense that she sincerely cares about each of them. None of that is easy to do.

I haven’t had a chance to watch the hearings—I have a full-time “day job” as an appellate judge. So I can’t say whether everything she has done was the right thing or the best practice. Legitimate questions can be raised from media accounts on the neutrality element. After all, she still must sentence Nassar, and she must be careful both to be—and to appear—fair in doing so. I am not suggesting she has failed on that point; I simply haven’t seen enough to know. As Professor Stephen Gillers notes in the New York Times article, though, this is a sentencing hearing, not a trial, and Nassar has already pleaded guilty to serious state and federal crimes. So it’s fair for the judge to take that into account at this hearing and even to comment on it.

Set the neutrality issue aside, though, because the significance of this hearing for other judges and those trying to make courts work better comes in the way Judge Aquilina has dealt with the victims. She has provided a model of procedural justice—providing voice, treating victims with respect, and showing that the judge presiding sincerely cares about each of them. And she has done it all in a public courtroom. Those who train judges should carefully look through transcripts or news accounts of this sentencing hearing. Examples of procedurally fair practices abound.

Posted January 24, 2018 by Steve Leben in Courts, Procedural Fairness, Trial Courts

New Book from CCI: To Be Fair   Leave a comment

The Center for Court Innovation has published a new book with 27 interviews of leaders around the country in procedural justice. The book is called To Be Fair: Voices About Procedural Justice, hot off the presses and also posted on the web. The book has a foreword from Prof. Tom Tyler and CCI deputy director Emily LaGratta.

As part of the book’s launch, CCI is hosting a live-streamed panel discussion on Friday, April 21 (9:30-10:30 a.m. EDT). I’m pleased to be part of that discussion, which will also include:

– Barbara Marcille, Multnomah County (OR) Circuit Court; and

– Melba Pearson, American Civil Liberties Union of Florida.

If you’d like to join us this Friday morning (9:30-10:30 a.m. EDT) for the procedural-justice panel discussion, here’s the link. Emily LaGratta will be moderating. 

Whether you join us or not, the book may be of interest. Those interviewed include judges, court administrators, prosecutors, defense attorneys, and judicial-performance evaluators.

Posted April 20, 2017 by Steve Leben in Uncategorized

The Perils of Multitasking: That Oscars Fiasco   1 comment

One of the dangers Kevin Burke and I have talked about with judges around the country is that of multitasking. As we have noted elsewhere, for more than 97% of us, task switching (what really happens when we try to multitask) has a cost in performance. Unfortunately, studies also show that most people think they actually are good at multitasking and more efficient as a result.

On the bench, this can have the negative effect of having a judge less aware of evidence being presented, objections being made, or subtle but important actions by courtroom participants. In a car, we are learning all too frequently that multitasking drivers can cause devastating consequences.

Now it appears that we can add handing out award envelopes at the Oscars to that list.

The Wall Street Journal had an excellent article yesterday telling what we know at this point. And it sure looks like multitasking played a key role that has caused embarrassment and potential repetitional damage to a big accounting firm, PricewaterhouseCoopers LLP, and one of its partners, Brian Cullinan.

Cullinan and another PricewaterhouseCoopers partner had what seems a fairly simple—and enjoyable—job for Oscars night: stand backstage and hand the award envelopes for the 24 major-category awards to the presenter right before that person heads on-stage. So, each time the presenter came up from the opposite side of the stage, Cullinan or his partner would have to put the unused envelope in their possession aside and make the next award’s envelope ready to go.

The multitasking problem appears to have happened between the next-to-last award to be announced—best actress in a leading role—and the final award for best picture.

After Emma Stone won the Best Actress Oscar, she came to Cullinan’s side of the stage. He then tweeted out a picture of her standing nearby with the comments, “Best Actress Emma Stone backstage! #PWC.” About three minutes later, Cullinan gave Warren Beatty and Faye Dunaway the wrong envelope as they headed on-stage.

The Journal reports that Cullinan doesn’t think his tweeting caused the error. But we know that most people don’t think their performance is degraded by multitasking. Like a judge on the bench—or all of us at one time or another—Cullinan had a single, very important task to focus on. We may never know for sure whether his decision to enjoy watching Emma Stone leave the stage, take a photo, and put out a tweet caused him to make an error that he now deeply regrets. But there’s a strong chance it did, and it’s a lesson we all should take in.

[Note: New details from behind the scenes have been published in Variety and the Washington Post, and they seem to add to the case that there were lots of distractions for Cullinan.]

Posted March 1, 2017 by Steve Leben in Uncategorized

New Resources on Procedural Fairness!   1 comment

I am genuinely excited to announce some new resources on procedural fairness in courts and beyond. These resources can be found at a companion web page, ProceduralFairnessGuide.org, and they have been made possible by the National Center for State Courts, the American Judges Association, and the website ProceduralFairness.org. Let me review what’s now available.

Training Materials. The National Center for State Courts has produced four training videos that can be used to teach judges and court staff about procedural-fairness principles. The situations include an employee at the court clerk’s counter dealing with an upset self-represented litigant, a busy criminal first-appearance docket, and judges on the bench distracted either by paperwork or their computers. Discussion guides are available for trainers who would lead the discussion and train participants. Participant guides offer lists of further resources related to each scenario.

AJA Fairness Interviews. The American Judges Association invited nine national leaders to a meeting on how to improve perceptions of fairness in America’s courts, and we recorded interviews we did with them. Those interviews are now on the web, and they provide a rich background of key procedural-fairness concepts and applications:

  • Start with the interview with Professor Tom Tyler, the leading scholar in the United States on procedural justice in both the court and law-enforcement contexts. He provides an overview of all of the basic concepts along with practical advice for judges in the courtroom. Every new judge should be given a link to this video.
  • Emily Gold LaGratta of the Center for Court Innovation discusses CCI projects to implement procedural-fairness principles in courts around the country as well as specific suggestions individual judges can implement.
  • Professor Terry Maroney discusses how judges can get better at dealing with their own emotional reactions in court, as well as those of other court participants. She also talks about what emotions best enhance–or detract from–perceptions of fair treatment.
  • Utah State Court Administrator Dan Becker talks about the work the Utah courts do on a regular basis to measure the perceived fairness of trial courts throughout the state, as well as how that data can be used to improve court performance.
  • Joanne Slotnik, who headed up Utah’s Judicial Performance Evaluation Commission at the time of the interview, talks about how that commission used procedural-fairness principles as the basis for citizen observers to evaluate the work of Utah’s state trial judges. She also discusses common problems the observers saw and ways judges might improve their on-the-bench performance.
  • Consultant Dale Lefever explains that better relationships lead to better outcomes, which in court means better compliance with legal orders. Drawing on training programs he has done for decades with both doctors and judges, he explains how a judge can build better fairness skills, including how to use videotape to evaluate one’s own performance.
  • Kent Wagner, who heads the Colorado Office of Judicial Performance Evaluation and previously directed judicial-education programs in Colorado, talks about the significance of procedural-fairness principles to the evaluation of judicial performance, the types of comments commonly made about judges in evaluation surveys, and areas judges might focus on for improvement.
  • Bert Brandenburg, the Executive Director of Justice at Stake at the time of the interview, provides background about public opinion of the courts, including what people want from courts and judges. He makes specific suggestions about how judges can respond to the public’s concerns.
  • Carl Reynolds, a policy advisor at the Council of State Government’s Justice Center and formerly the Texas State Court Administrator, talks about measurement tools that can be used to assess court performance in fairness as well as how to train judges about procedural-fairness concepts.

There also are two video statements from state supreme court chief justices about the emphasis placed on procedural-fairness principles in the courts of their states. Then-Alaska Chief Justice Dana Fabe (who recently retired) speaks about the decision to place a poster pledging fairness at the entrance to every courthouse in Alaska. Utah Chief Justice Matthew Durrant talks about the emphasis that Utah has placed on procedural fairness–something that he put front and center in a State of the Judiciary message to the Utah Legislature.

Podcasts. Three audio podcasts are now available synthesizing the AJA procedural-fairness interviews. Prepared by Justine Greve (M.A., American Studies), a staff member with the Kansas Court of Appeals, these podcasts (running 8 to 10 minutes each) provide an easy way to hear the themes from all of the interviews, with clips from several of the interviews in each podcast:

  • Improving Judicial Behavior. Listen to this podcast for tips about how to improve a judge’s communication from the bench.
  • Procedural Fairness in Judicial Training and Evaluation. This podcast focuses on how the principles of procedural fairness can be used to evaluate judges and help them become better at what they do.
  • Procedural Fairness as a Model for Modern Authority. In this podcast, we consider changing ideas about what leads the public to accept an authority figure’s legitimacy. The interviewees argue that procedural fairness is the modern model for the proper exercise of authority, leading those involved to view the judge as worthy of their trust.

In addition to these podcasts made from the AJA fairness interviews, Justine Greve has also done several other podcasts for our website, ProceduralFairness.org. They have been published here on this blog as they have been done, but they will soon be reposted on the Podcast page at ProceduralFairnessGuide.org as well.

I’m very pleased that these materials–generated through the collective efforts of the National Center for State Courts, the American Judges Association, and the contributors to ProceduralFairness.org–are now available. We’ll still be doing some spruce-up to the website where they’re located, but we think the resources you’ll find there will be helpful in advancing the cause of procedural fairness in America’s courts.–Steve Leben

 

Posted October 28, 2016 by Steve Leben in Uncategorized

Procedural Fairness in Sentencing   Leave a comment

We don’t know who first said this: “Learn from the mistakes of others; you can never live long enough to make them all yourself.” But we surely know that judges can learn from the mistakes of other judges.  Explaining to a defendant why a judge imposed a sentence and insuring everyone understands that the decision was based upon neutral principles of law, not some personal vendetta, is an essential component of procedural fairness. Reflecting on what should be said in explaining a sentence is among the most effective checks on our implicit biases.

United States District Judge Rudolph Randa said some things at a sentencing that all judges can learn from. According to to a transcript, his remarks included these: “We had huge riots in this city.  Not unlike what happened in Baltimore this week.  And if we had something like this in this city today? With this pathology that we’ve got set in these neighborhoods? The same thing is going to happen here.”

So what did Judge Randa do that judges might learn from? Judge Randa sentenced Billy Robinson Jr. within the recommended range of the federal sentencing guidelines, yet he was not only reversed by the United States Court of Appeals for the Seventh Circuit, he was removed from the case.  As the appellate court put it: “Billy Robinson’s guilty plea was routine; his sentencing hearing was not. . . . During his sentencing hearing, the district court went far afield in its comments.  We are left without the ability to say confidently that the sentence was imposed in accordance with the proper procedures.” United States v. Robinson, No. 15-2019, 2016 WL 3947808 (7th Cir. July 22, 2016).

The protests in Baltimore and events the judge remembered from 1976 had nothing to do with a relatively minor player in a Milwaukee drug case in 2015, the court said.  Judge Randa was also chastised for remarks about crime in urban neighborhoods and about the defendant having had multiple children with different women.  The judge’s remarks “were irrelevant and had no basis in the record,” Chief Judge Diane Wood wrote. “They therefore undermine our confidence in the fairness of the proceeding.”

The appellate court carefully explained its problems with Judge Randa’s remarks at sentencing:

The sentencing hearing took a wrong turn by focusing on urban decay, social unrest, and the judge’s personal experiences in the relevant neighborhood. As we have said before, “it is inappropriate to blame [a defendant] for issues of broad local, national, and international scope that only tangentially relate to his underlying conduct.” Smith, 400 Fed. Appx. at 99 (citing Figueroa, 622 F.3d at 743–44). We need not review all of the comments made during sentencing; a few examples will suffice.

The district judge invoked his own recollections from his college days of Robinson’s neighborhood, noting that many years ago it was a safe place and now it was not, because of the omnipresent drug trade. These references are troubling because they could be “understood as a personal grudge that the judge bore against [Robinson] for dealing drugs in his old neighborhood.” United States v. Wilson, 383 Fed. Appx. 554, 557 (7th Cir. 2010) (nonprecedential). They appear to attribute “issues of broad local [and] national . . . scope”—changing crime rates in cities—to Robinson’s crime, when these issues at best “only tangentially relate to his underlying conduct.” Smith, 400 Fed.Appx. at 99. Robinson was not charged with a violent crime or a crime involving a firearm, nor did his criminal history include any such crimes.

The district judge also went too far when he suggested that Robinson’s crime was related somehow to events elsewhere in the country. The court discussed its belief that Milwaukee today is similar to Milwaukee in 1967, and drew questionable—and irrelevant—parallels between Milwaukee’s 1967 riots and recent protests in Baltimore over police brutality. He noted in particular some protests in Milwaukee over the Vietnam War in 1967 (12 years before Robinson was born)—protests that got in the way of his deployment to a combat zone. He wondered what would happen if something similar were to take place today, and he bemoaned the general lack of discipline, responsibility, and self-direction.

. . . .

The district court also used “colorful” language to “dispense with arguments that [it] did not appreciate.” See Figueroa, 622 F.3d at 743. In response to Robinson’s statement that his family supports him, the court said, “I don’t care how nice you are. How much your family loves you. I mean, my family loves me, too.” And in response to Robinson’s statement that he and his fiancée intended to move to Alabama in order to leave behind negative influences in Wisconsin and Illinois, the court pointed out that Robinson had five children by four different mothers, and questioned whether he was really prepared to support all five. Robinson’s childcare arrangements might be relevant to his sentence for some purposes. The fact that he has children with multiple mothers is not, however, “the real problem” (in the judge’s words) that his sentence is meant to address.

Judges should tailor a sentence to fit the facts and circumstances of the crime committed and the background of the defendant.  Prior offenses are usually easy to determine.  But when one moves to mental or moral propensities or social background, or pontificates about the effect crime as a way of explaining general deterrence, implicit bias can infect the decision—unless the judge is very careful.

The right to allocution dates back to 1776.  Allocution provides an opportunity for a defendant to explain—in his or her own words.  Although not every state has held the right to allocution to be a fundamental right, it is in essence the first component of procedural fairness: voice.

LEARNING FROM OTHERS

Steps to Getting Good at Sentencing:

  • Prepare Mentally

The transcript in United States v. Robinson makes clear that everyone was prepared. Judge Randa had read the presentence report and knew about the defendant. But was he mentally prepared? Interaction with a defendant at sentencing is not an easy task. Being mentally prepared is the essential first step.

  • Voice and the Right to Allocution

One of the most prevalent reasons people do not speak in court is intimidation.  Added to the intimidating atmosphere of a court environment at sentencing is fear: “Be careful what you say for fear of offending the judge.”  If intimidation and fear of a defendant to speak are allowed to permeate a sentencing, voice and the right to allocution can become hallow.

  • Saying Less Is Not Necessarily Better

There is a temptation to react to Judge Randa’s situation and conclude less is better. It is not. Sympathy can be appropriate at sentencing. Explaining why something that is important to the defendant cannot be recognized as legally relevant also is an essential part of good sentencing. 

  • Emotion Is Part of the Sentencing Process

Regulating your own emotions and those of others is a part of all court proceedings—and particularly of a sentencing. Some sentencings can evoke anger in a judge. While anger may or may not be appropriate to the situation, contempt of an individual is never acceptable. Victims can express anger and a prepared judge needs to regulate their emotions. Remorse is an emotion some defendants have and some defendants rather poorly fake. A defendant’s failure to show remorse is a powerful factor in many a judge’s decision on sentencing.  Yet, there is little evidence that remorse can be accurately determined. There is significant evidence that race can create obstacles to accurately evaluating remorse.  See Susan A. Bandes, Remorse and Criminal Justice, 8 Emotion Review 14-19 (Jan. 2016) (first published on October 23, 2015).–Kevin Burke

 

Posted July 27, 2016 by Steve Leben in Uncategorized

Webinar This Week on Procedural Justice and Juveniles   3 comments

Sorry for the short notice, but when I was checking some things out on the web today, I came across a great program set for Wednesday, July 27, from 2 to 3 p.m. EDT. Two Yale law professors, Tom Tyler and Tracey Meares, will present the program, entitled “The Importance of Enhancing Procedural Justice in Interactions with Juveniles.”

I’ve already signed up because every time I’ve heard Tom Tyler speak about procedural justice (what I typically call procedural fairness when talking about court proceedings), I’ve learned something new. After all, he has been the leading researcher in this area over the past three decades, and he also has a feel for making things practical and understandable. I haven’t heard Tracey Meares, but she has been doing interesting work in the areas of police legitimacy, communities, and legal policy; I’m sure the interaction between Tyler and Meares will make the program a good one.

The official program description says that they will “describe recent research demonstrating the particular salience of procedural justice to juveniles, a group that has frequent contact with the criminal justice system and whose orientation toward the law is still being established. Tyler and Meares will discuss how criminal justice actors can use the insights of this research to improve their legitimacy in the eyes of young people in their communities.”

Just click the link to go to the program description on the Yale Law School website. From there, hit the link to “webinar” to register. There is no charge for the webinar.–Steve Leben

Posted July 23, 2016 by Steve Leben in Uncategorized