That is the title of an op-ed in yesterday’s New York Times written by Carrie Menkel-Meadow and Edwin Chemerinsky. The op-ed cautions against rushing to fix legal education in ways that may do “more harm than good.” The full op-ed can be read here .
That is the title of an op-ed in yesterday’s New York Times written by Carrie Menkel-Meadow and Edwin Chemerinsky. The op-ed cautions against rushing to fix legal education in ways that may do “more harm than good.” The full op-ed can be read here .
Last week the NY Times published an interesting piece: The Science of Older and Wiser.
Just one snippet that I liked (from many):
“True personal wisdom involves five elements… They are self-insight; the ability to demonstrate personal growth; self-awareness in terms of your historical era and your family history; understanding that priorities and values, including your own, are not absolute; and an awareness of life’s ambiguities.”
The full article is here .
I spent two days at the end of last week attending a conference at the Regent University School of Law on Promoting the Rule of Law in East Africa. The conference was well organized and included an impressive list of thoughtful and thought provoking speakers (see here ). The conference included a number of speakers from Uganda, including the current Director of Public Prosecutions (the head prosecutor in the country). I learned about interesting developments in plea bargaining and a pilot project to improve juvenile justice in Uganda. As is no surprise, Uganda suffers from over-crowded courts, long pre-trial detention periods, and a general public who often rely on traditional informal dispute resolution practices because the formal justice system is not seen as a good forum for their disputes (due to delays, costs, and corruption). I was also very interested to learn about mediation programs to deal with land disputes in the north.
I was left with an impression that Uganda is a country struggling with many of the same issues in developing rule of law that are so common around the world. I was also left with the impression that there are many talented, well trained and educated lawyers who are working hard on these issues.
In the midst of these discussions, one issue was mentioned again and again: child sacrifice. I will admit, I haven’t been keeping up with this news. I had no idea that child sacrifice is a real issue and on-going problem anywhere in the world, including in Uganda. A few years ago the BBC did a documentary about this problem which you can view here . The stories seem to all be fairly similar: children are sacrificed due to the belief that if done “right” it will bring prosperity. Most of the children who are killed seem to be victims of kidnapping, although there are also stories of parents killing their own children. The BBC documentary has some shocking undercover scenes with discussions about how many children need to be killed to ensure the success of a business venture.
There are not many statistics regarding how common these crimes are, but one report, released last year, see here , based on qualitative interviews in Uganda, finds that this is a serious and on-going problem. It was also clearly an issue that all of the Ugandans who spoke at this conference were deeply concerned about. Many of the speakers are actively working on this issue from a variety of positions, including helping children who had been seriously injured in attempted murders.
Today, just a few days after returning from this conference, I read that the Ugandan President, after many months of back and forth, just signed into law one of the worst anti-gay laws in the world, see here . This news is all the more disturbing after having spent several days hearing of the serious issues that Uganda is confronting, not the least of which is the problem of child sacrifice. Clearly, laws that reinforce hatred and prejudice do not advance the rule of law. The Ugandan President’s statements on signing the law were the kind that are regularly used to justify hatred and prejudice against minority groups such as that they “choose” to be this way (how many Jews have been killed throughout history for failing to “choose” to convert to another faith?).
It is hard to understand why a country like Uganda that struggles with a violent history, and current extreme challenges such as child sacrifice, would make who consenting adults love a crime. As Martin Luther King Jr. observed, “The arc of the moral universe is long, but it bends towards justice.” I can only hope that some of the impressive Ugandans I met in recent days will help to bend the arc of justice in Uganda back towards respect for human rights for gay Ugandans in the near future.
One of the things I did over the winter break was try to find some new material for my class on Advanced Issues in Criminal Justice. I came across two interesting movies on restorative justice that I had not known about and that I am planning to use in different ways in my class this spring.
The first is a 35 minute documentary, “Burning Bridges,” which shows a conferencing circle that was used in Pennsylvania in 2005. Six young men, all in their early 20s with no previous criminal record, burned down a historic covered bridge in a small town in Pennsylvania and were charged with arson. This bridge was an important part of the town’s history and identity. As a result, the public reaction was strong against these young men. The restorative justice conference included community members and the young men and their families. This well done documentary moves quickly and does a nice job of explaining how the restorative justice process worked and showing key parts of it (the whole conference was taped). I think it will be a good resource to use in class to show what a restorative justice process can look like in practice. It is short enough that it should easily work to use during one day in class as there will be time to both show the film and discuss it. The documentary is not strong in terms of explaining how the process fit into the criminal cases themselves, but the organization that put the documentary together was very quick to respond to my questions so I have a little more information for when I use the film in my class. I’m happy to forward along what I learned to anyone who might be interested. The DVD is available for $38.00 from the International Institute for Restorative Practices: www.iirp.edu .
The second movie is a 2011 feature film from Australia called “Face to Face.” It is available from Amazon.com and Netflix (and no doubt a number of other places). It is based on a play written by an Australian playwright, David Williamson, and the play in turn is based on actual restorative justice conferences in Australia. One of the reviews of the film compared it to Twelve Angry Men. It is similar in that the movie shows a restorative justice conference from beginning to end and is a highly condensed dramatic account of the process (as Twelve Angry Men is for jury deliberation). There are a number of flashbacks to help illustrate what is going on with the various people in the film. The restorative justice conference is held as part of the criminal process and through this process the criminal case could be resolved. As the DVD blurb explains:
“The story is about a young scaffold construction worker who is charged with assaulting his boss. By the end of the film, all our assumptions about guilt and blame are turned on their heads. As 10 people sit in a room discussing the turn of events that brought our protagonist to breaking point, twists and surprises reveal that all is not quite as simple as it seems.”
This hour and half film is too long to show in my class this spring. There are some scenes that could possibly be used on their own to illustrate specific points about how restorative justice processes can work. Instead of showing just pieces of it, I have decided to use the film as an out-of-class assignment, requiring students to watch it and write up a film review. I will require that students follow a particular format for the film review so they will need to analyze the restorative justice process itself (not simply look at the dramatic value or quality of the film). In addition to the length, another reason the film may not be as appropriate for use in class is the liberal use of profanity and some limited violence. I’ll be advising my students of this in advance and giving the option of an alternative assignment if requested. What I don’t know is how hard the Australian accents and slang will be for my students to understand.
Both these films do a good job of showing the raw emotion that can so often be present in restorative justice proceedings. They also both do a good job of showing the importance of good facilitation and how good facilitation includes preparation in advance of the conference itself.
A federal judge in Washington issued a decision holding that two cities in Washington violated the sixth amendment right to counsel because their public defender system was so underfunded and understaffed that the representation amounted to little more than a “meet and plead” system. The decision is critical of the caseloads that the appointed counsel held—and the fact that they therefore could not, and did not, investigate cases, run motions, or even have confidential conversations with their clients before they plead guilty. The ACLU sued both cities.
This is reportedly the first time a federal court has ruled that a local system of providing indigent defense services is constitutionally inadequate. It seems clear that there are many other jurisdictions around the country that could be criticized for systems that are not dramatically better than those in these two cities in Washington. It will be interesting to see if this case is the beginning of a larger movement to use the federal courts to bring change to local indigent defense systems.
It is also interesting to note how the decision discussed the use of plea bargaining. The decision criticized two defense lawyers who held a previous contract to defend indigent defendants stating that,
“In general, counsel presumed that the police officers had done their jobs correctly and negotiated a plea bargain based on that assumption. The appointment of counsel was, for the most part, little more than a formality, a stepping stone on the way to a case closure or plea bargain having almost nothing to do with the individual indigent defendant. To the extent that ‘adequate representation’ presumes a certain basic representational relationship, there is a systematic failure…”
The court was careful not quantify how many cases appointed counsel should handle, or how many adversarial proceedings or motions they would expect to see defense lawyers participate in for a given caseload. The decision did acknowledge that the deals the defense lawyers negotiated for their clients may have been good deals but
“that the system is broken to such an extent that confidential attorney/client communications are rare, the individual defendant is not represented in any meaningful way, and actual innocence could conceivably go unnoticed and unchampioned. Advising a client to take a fantastic plea deal…may appear to be effective advocacy, but not if the client is innocent, the charge is defective, or the plea would have disastrous consequences for his or her immigration status.”
The decision included injunctive relief and ordered the cities to do a number of things to correct the situation, most of which centered around hiring a public defender supervisor and close supervision of various aspects of how the defense lawyers are doing their jobs. The cities were not ordered to dramatically increase spending on defense services, hire investigators, or hire a certain number of additional defense lawyers. Although the cities were ordered to “reevaluate their existing contract” for indigent defense services.
The Department of Justice filed a Statement of Interest in the case, taking no position on the merits, but suggesting possible remedies if the court were to find (as it did) a violation. The DoJ Statement of Interest can be found here and clearly was influential in the injunctive relief the court ultimately ordered.
The full decision can be found here .
An AP article about the case can be found here .
As we recently announced on our website:
Texas A&M University invites nominations and applications for the position of Dean of the Texas A&M University School of Law. The desired appointment date is July 1, 2014.
The Dean Search Committee has been appointed by the Provost and Executive Vice President of Texas A&M University, Dr. Karan Watson.
Applications should include a curriculum vitae and a cover letter including a brief statement of interest. Although the Committee will continue to accept applications until the position is filled, to be given fullest consideration applications should be received by January 15, 2014.
The link directly to the full job announcement is here .
Last week the U.S. Supreme Court decided the case of Burt v. Titlow. Many hoped the Court would use the decision in Titlow to bring more definition to the Court’s 2012 decisions in Lafler and Frye when they held that defendants have a right to effective assistance of counsel in plea bargaining. Instead, in a 9-0 decision, the Court decided not to decide much at all. The Court declined to use Titlow to further define effective assistance of counsel in plea bargaining although the defense lawyer’s conduct was “troubling” and “far from exemplary.” Historically the Court has rarely been too concerned with simple bad defense lawyering and quick to find “harmless error.” This case is another unfortunate example of their hesitancy to insist on higher standards in our criminal justice system. The Court instead stated that the 1996 Anti-Terrorism and Effective Death Penalty (AEPDA) amendments in federal habeas law and Strickland v. Washington “do not permit federal judges to so casually second-guess the decisions of their state-court colleagues.”
Titlow did have messy facts and may not have been the ideal vehicle to use to further clarify much of anything. For Rory K. Little’s nice analysis of the convoluted facts, before the decision, see here .
After the Court’s decision, Professor Little, on scotusblog, stated that “Titlow suggests that [the Court] will be looking for direct review cases from the state and federal courts to clarify the law in this area, rather than through the foggy filter that federal habeas doctrine imposes.”
The challenge for those who want the Court to further define Lafler and Frye will be to bring on appeal cases that are more straightforward and less mired in obvious procedural barriers.
To read the full opinion (all eleven pages), and the concurrences by Justices Sotomayor and Ginsberg see here .
The UK Ministry of Justice is proposing to save £220 million (approximately $351 million) by paying lawyers so that they will receive more money if they plead their clients guilty early in their criminal case, rather than waiting longer or going to trial.
According to the London Criminal Courts Solicitors Association, there are situations under this budget proposal where a lawyer who enters a quick guilty plea for their client could earn a 75% fee increase.
As one British solicitor commented, “”By law, we’re already obliged to advise our clients about the benefits of an early guilty plea, by way of credit on their sentence … It doesn’t take a legal background – or criminal record – to realize that these incentives for a guilty plea and disincentives for a trial are an affront to justice.” British lawyers are protesting these proposed changes.
Many parts of the United States already have such a system in place for indigent defendants, although it is not as overt. Instead of offering to pay defense lawyers more to plead a case guilty early in the process, the possible rate of pay is set low and a cap is put how much an appointed lawyer can receive for each case, regardless of whether it goes to trial or not. The practical result of such a system is that lawyers are financially penalized for taking cases to trial. This is even more of a concern where the caps are set so low that lawyers who go to trial do so at their financial peril. One study found that twenty states use flat fee structures (see here and for some examples of poor pay see here).
It is unfortunate to see a proposal such as this coming from the UK considering the strong British tradition of guaranteeing the right to a lawyer in criminal cases. I have worked with many British lawyers over the years and have been consistently impressed with their high levels of professionalism. I can only hope that professionalism will prevail and this proposal won’t be adopted.
For an article from the Guardian about the proposed changes and reactions see here .
The Los Angeles Times published an article here about a pilot program in the federal courts in Southern California which allows a small number of defendants facing federal charges to complete sentences without prison time and, in some cases, to have their cases dismissed. It is unclear from the article what the intake procedure is and how defendants qualify for this program. But, the article states that defendants are first required to plead guilty, although some may later qualify to have their cases dismissed if they complete all the requirements. This program seems to admit a large variety of offenders and doesn’t seem to exclude violent crimes (such as bank robbery) or drug sales. This is in contrast to many state level problem solving courts that routinely exclude defendants convicted of violent crimes or drug sales offenses.
This is an example of the kind of programs that Attorney General Holder praised when he announced the Justice Department’s new “Smart on Crime” policies in August that I wrote about here . Although problem solving courts and alternative sentencing are common at the state level, they are still fairly new and not widely used in the federal system.
Hat tip to Crim Prof Blog for posting the LA Times article.
On December 2-5, 2013, there will be a “Veterans Treatment Court Conference” in Washington DC that is being advertised as “The nation’s first conference dedicated to Veterans Treatment Courts and justice-involved veterans.”
According to the website:
This inaugural conference is expected to draw over 1,000 attendees from across the nation! With over 75 sessions, including more than 150 hours of education, Vet Court Con will offer critical training to judges, prosecutors, defense attorneys, probation officers, volunteer Veteran Mentors, volunteer Veteran Mentor Coordinators, law enforcement officers, mental health and drug addiction treatment professionals, VA employees, and many others.
For more information about the conference, see here .
The existence of this conference indicates how wide-spread veterans courts have become. According to one report, “In 2008, there were just five veterans courts in the United States. By the end of last year, there were 166.” See here .
NPR ran this story today: Shutdown Showdown: Assessing Obama’s Negotiating Tactics
Following Andrea’s lead, I thought I would write about one of the books I read this summer: Supreme Court Justice Sonia Sotomayor’s autobiography, My Beloved World. Overall, the book is a good read and tells an engaging story of how Sotomayor went from being the daughter of Puerto Rican immigrants who had very little formal education to her own Ivy League education and career as a lawyer and judge. It is a book clearly intended for a non-legal audience and intended to not give Supreme Court watchers much information to predict Justice Sotomayor’s future decisions.
For me, the part of the book that was the most interesting was Sotomayor’s reflections on her time as a prosecutor with the District Attorney in New York. One fascinating aspect was to see how to discuss plea bargaining without using the term (it only features once). Sotomayor’s book could easily leave the impression that Deputy DA Sotomayor barely settled any cases, and when she did so, it was as a hard-nosed prosecutor. As she writes:
“It wasn’t easy, with around a hundred cases on my desk at any time and constant pressure to dispose of them as quickly as possible. Cases with the same charge tended to blur together, especially since the DA’s Office offered standard plea deals for certain crimes: Possession of a gun? Settle it today, and it’s a class A misdemeanor. Make me wait, and tomorrow it becomes a felony. Forget about mitigating circumstances; I don’t want to hear it.”
Sotomayor notes that “a prosecutor’s career is built on a reputation for toughness and winning stiff sentences.” She goes onto describe one case where she gave a good plea deal and it all worked out for the best for the defendant. But she is careful not to leave the impression that this one case is representative. Sotomayor describes the “thrill of verbal sparring at trial” and “[n]otching up top-count prosecutions—convictions for the most serious charges—while giving up little ground in plea bargains…” Sotomayor talks about “dispositions” leaving the impression that many cases were resolved this way only because she “didn’t believe” in the case. Sotomayor alludes to a common practice of offering a lower plea deal for cases with evidentiary problems. In fairness, Sotomayor does focus on the need for prosecutors to seek justice and the value of mercy. However, she has wrapped this discussion into a larger picture which leaves the impression that plea bargaining is something that is not nearly as commonplace as it actually is and with the idea that hard bargaining tactics (don’t make her wait for a guilty plea) are the way it should be if deals are being given out.
Clearly, this autobiography is not intended as definitive analysis of the good, the bad, and the ugly of plea bargaining. And, Sotomayor’s focus in this part of the book is more on what she learned from these experiences as part of her professional development and not what she would change (or not) about how the criminal justice system functions.
It is unfortunate, as Sotomayor misses the opportunity to describe this daily reality of the criminal justice system to a broader audience to introduce them to how our criminal justice system actually works and to move the public perception beyond the idea that a plea deal from the prosecutorial perspective is only given when there are evidentiary problems or if the defendant pleads early so as not to “make” the prosecutor wait. Many parts of Sotomayor’s autobiography reflect serious thought and reflection offering interesting insights, particularly about the challenges that those who are the first generation in college face in elite higher education institutions. Unfortunately, Justice Sotomayor’s few snippets about plea bargaining fail to reach that level of analysis and insight and leave the average reader to continue thinking that plea bargaining is such a dirty business that we can’t use the term, that tough prosecutors are loath to give good deals unless there is an exceptional circumstance, that plea deals given out should help to reinforce the prosecutor’s reputation and professional standing, and that trials are still the way that most criminal cases are resolved.
On Monday, Attorney General Eric Holder announced some fundamental changes in how the Department of Justice is going to address charging, prosecuting, and ultimately plea bargaining criminal cases in the federal system. Holder announced the “Smart on Crime” initiative during a speech to the ABA.
From my reading, there are some key changes including:
1. A shift away from uniform charging and sentencing. The Attorney General is now calling for “district-specific guidelines” to determine how to charge cases and prioritize what kinds of cases to pursue. This is a significant shift from previous policies that sought to have nationwide uniformity in charging and plea bargaining.
2. A recognition (better late than never) that incarceration is not a cure-all to our problems and along with that recognition a call for the use of more alternatives to incarceration for “low level, non-violent crimes.” These alternatives seem to include drug courts and veterans courts which have not yet been widely used in the federal system, in contrast to what is happening at the state level.
3. An intention to seriously examine collateral consequences of criminal convictions. It remains to be seen how this will play out, but from the document released on Monday it seems that this could be a factor to legitimately consider in plea negotiations. For now, the statement calls for a new memorandum to instruct DoJ “components” on how to deal with collateral consequences including in a rule-making context.
For the full statement of Smart on Crime see here .
Holder’s speech is worth reading in full. A few of the lines that stood out to me:
“It’s clear…that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.”
“…widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable. It imposes a significant economic burden–totaling $80 billion in 2010 alone–and it comes with human and moral costs that are impossible to calculate.”
Holder also calls for a review of mandatory minimums and “inflexible sentences” that decrease the discretion of the prosecutors and judges.
This seems a step in the right direction. But, there will need to be serious institutional changes for the prosecutors responsible for making charging and plea bargaining decisions to handle cases differently and decide to decline prosecutions at a federal level. The “hard on crime” approaches are deeply entrenched in the federal criminal justice system and I suspect it will not be easy to change.
But, this new announcement is encouraging. And, I will be interested to watch how specialty courts (such as drug courts, mental health courts, and veterans courts) develop in the federal system.
One interesting note. Although 97% of all federal convictions are through plea bargaining, both Holder’s statement and the Smart on Crime document do not use the term.
From Friend of Indisputably, Richard Reuben (the University of Missouri-Columbia):
The AALS Dispute Resolution Section this fall is starting a new a mentoring program for junior ADR scholars, and I want to invite you to participate as either a senior or junior scholar.
This program will of course offer mentoring on scholarship, opening the door for junior scholars to be able to tap into the experience, wisdom, and generosity of established scholars with substantive expertise that is especially relevant to their research. However, it will also offer other important mentoring services, including casebook consultation, syllabus review, ongoing coaching advice as junior scholars go through their courses for the first time, help getting visibility at conferences and other professional events appropriate to their scholarly and service interests, advice on what to do and not to do during the tenure and promotion process, and other unique services that individual junior faculty need to the extent that we can offer them.
As many of you know, senior scholars in this field have a long tradition of mentoring junior scholars informally on an individual basis. The reason for formalizing this process now is to make mentoring services available to those who have not been able to plug into an appropriate informal network, facilitate the possibility of particularly suitable mentoring relationships, uplift the level of junior scholarship, provide immediate mentoring resources for schools without other ADR colleagues for junior faculty to turn to, and provide a resource for law school tenure and promotion committees to turn to for possible outside reviewers.
For now, as we get started, I will serve as the point person for both junior and senior scholars. Senior scholars can simply let me know of your willingness to help, and I will send you a link to a Google Doc on which you can insert your name, contact information, and preferences. Junior scholars can participate by sending me an email letting me know of your interest, and setting up a time to talk for a few minutes so I can get a better sense of who might be most appropriate to direct you to for the particular needs you have. My email address is ReubenR@missouri.edu. Note that the availability of any particular senior scholar will inevitably vary, and senior scholars can always decline a specific invitation to mentor for any reason.
I am excited about the potential for the program to enhance the professional experience of all participants, junior and senior, and I look forward to working with you on it as moves forwards. Naturally questions and comments are always welcome and for now should be directed to me.
I hope the fact that I have now seen a second story about high schools using mediation and reducing violence and suspensions means that there is a serious trend in the United States and that we are changing how we treat high school students, particularly in poorer neighborhoods.
This story from the Atlantic describes changes in a high school in Philadelphia. This school changed how it dealt with both conflict within the school and danger from a high crime neighborhood—all with what seem impressive results in a very short period of time. The school changed the physical realities—removing bars, metal detectors and other things that made it seem more like a jail, and less like a school. The school also changed how it treated the students, by raising expectations, using mediation to resolve conflict, and taking police officers out of the school.
As a Shaun Harper, a professor of education, said in the story, “Environment matters…If a school promotes academic rigor and going to college, that shapes student behavior. If a school’s environment feels unsafe and looks like a prison, then that does, also.”
It is a shame that it seems a controversial or highly innovative move for a school to decide to stop treating students with heavy-handed tactics and instead focus on treating them with respect and raising expectations.
The beginning of the article:
“Last year when American Paradigm Schools took over Philadelphia’s infamous, failing John Paul Jones Middle School, they did something a lot of people would find inconceivable. The school was known as “Jones Jail” for its reputation of violence and disorder, and because the building physically resembled a youth correctional facility. Situated in the Kensington section of the city, it drew students from the heart of a desperately poor hub of injection drug users and street level prostitution where gun violence rates are off the charts. But rather than beef up the already heavy security to ensure safety and restore order, American Paradigm stripped it away. During renovations, they removed the metal detectors and barred windows.
The police predicted chaos. But instead, new numbers seem to show that in a single year, the number of serious incidents fell by 90%.”
An interesting interview with Justice Kagan giving her perspective on collegiality on a contentious Court: here.
The first ten minutes or so are Kagan’s views on how the Justices get along with each other. The rest of the interview is about some of the cases heard this term.
In the wake of George Zimmerman’s acquittal, I wonder why this case has not gotten any serious attention.
The defendant, Marissa Alexander, was convicted of aggravated assault with a deadly weapon when she fired a warning shot towards the ceiling at her estranged husband, who she had a restraining order against. Ms. Alexander claimed that she was in fear. The judge refused to allow Ms. Alexander to assert the Stand Your Ground defense because she apparently went back into the house with a gun. Given that this seems to be a domestic violence case, with a history of abuse, it is curious to me that the judge did not decide that the question of self-defense or Stand Your Ground was a factual question for the jury to answer.
Without the Stand Your Ground defense, the jury deliberated briefly and convicted. Under Florida’s mandatory minimum gun law Ms. Alexander was sentenced to 20 years. Under the law anyone who brandishes a gun in the commission of certain felonies gets an automatic 10 years in prison, if they fire the gun it is 20 years. Ms. Alexander had never been to prison before, had a masters degree, and is the mother of three young children.
What is interesting, or disturbing, is that Ms. Alexander was offered a deal of 3 years in prison. She rejected the deal because she thought she did not commit a crime.
This is where Ms. Alexander’s story starts to look very similar as she suffered a stiff penalty for exercising her right to trial, what is commonly called the trial penalty. The trial penalty is even stiffer when it involves offenses, like this one, with mandatory minimums.
As Greg Newburn, from Families Against Mandatory Minimums said,
“The irony of the 10-20-life law is the people who actually think they’re innocent of the crime, they roll the dice and take their chances, and they get the really harsh prison sentences. Whereas the people who think they are actually guilty of the crime take the plea deal and get out (of prison) well before…” See also here.
The prosecutor, the same one whose office prosecuted Mr. Zimmerman, commented on the plea offer saying that Marissa Alexander “didn’t have to get 20 years, because I took into account their prior domestic history and her lack of a [criminal] record, and we offered her the three year mandatory minimum.” See here.
The most important question, for me, remains both unasked and unanswered in the news reports: why was this case worth 3 years in prison under the plea deal, but 20 years in prison after a trial that lasted just a few days? If the prosecutor thought the case was worth just three years, she should have amended her complaint to make it an offense that did not carry a mandatory minimum. Prosecutors have the discretion to do that, despite the fact that they rarely do so after a defendant has rejected a plea deal. In that sense the prosecutor in this case is right. Marissa Alexander didn’t have to get 20 years. The prosecutor had it well within her power to see to that.
I am in the process of thinking about the last year and what worked, or didn’t work, in my classes. As part of that process, I thought I would share one new approach I took this year that I thought worked very well in my negotiation class. This new approach is thanks to Andrea Schneider’s Teaching a New Negotiation Skills Paradigm, 39 Wash. U. J.L. & Pol’y 13 (2012) or on SSRN.
For those who haven’t yet read this article, Andrea recommends that when we teach negotiation we should move beyond the simple categorization of styles such as being “competitive” or an “avoider” and instead focus on five key negotiation skills: assertiveness, empathy, flexibility, social intuition, and ethicality. The reason for this is the reality that negotiations are fluid and while one might be more competitive or cooperative, these labels rarely describe the whole process and in the context of teaching negotiation the focus on such labels can be at the expense of focusing on key skills. Andrea also identifies three basic skill levels: minimum practice, average practice, and best practice and gives clear examples of what would constitute a minimum, average or best practice level for each skill.
When I teach negotiation I use a fairly standard format. First the students negotiate based on a role play and then we debrief the negotiation. After the debrief in class, students write an analysis of the negotiation which should include self-critiquing. My frustration has been that students often do a very surface level in-class debrief and written self-critique. I have found it difficult to do a more in-depth analysis in class and therefore it is probably not a surprise that many students have a hard time with the written analysis.
I decided to try using Andrea’s five skills as the framework for our debrief and see if that helped. Before going through the critique using this framework I discussed how hard it can be to reach a best practice level and made it clear that I did not expect that level and that the point was to use these levels to aid in their self-critiques (I make the point repeatedly that the quality of the analysis is what matters and the importance of developing self-critiquing skills).
The in-class discussions still started by going over the basic outcomes and doing a general discussion about what worked and didn’t in the particular negotiation. Then I would go through each skill and ask for examples of what they did using that skill and ask students to evaluate what level they reached with that skill. Breaking their performance down into the five basic skills and then analyzing what level they reached with each skill resonated well with my students. They were quick to say things like “I don’t think I reached a minimum level on that one” or when they did something well to identify it as an example of a “best practice.” And, they also seemed to more easily analyze what they could do the next time to reach a better level with each particular skill.
I found that using these five skills and breaking it down by practice level helped in a few key areas. First, the class discussions were much richer and we were able to reach a deeper level of analysis. Second, students seemed to easily identify with breaking down the negotiation into these five skills and three practice levels which meant they started thinking about these skills in advance of or during their negotiations, not simply as an after-the-fact analytical tool. Third, the written analysis that I got back from the students was much better. I required students to use the five skills as the framework for the self-critique section of their written assignments and having such a clear series of skills to think about seemed to help the analytic process and encourage students to do a much more thorough analysis of the negotiation. In the end, using this approach helped my students to move beyond simply deciding that they are “competitive” or an “avoider” and thinking that everything that happens in their negotiations is due to their predominate negotiating style. It also encouraged students who think one style or another is superior to take a more nuanced view of negotiations and recognize that being successful in a negotiation is not about one style or another, but rather about the variety of skills that they use.
Because of when the article came out (after my syllabus was completed) I didn’t require students to read the article. I therefore spent a chunk of class time in one class explaining the article. I have a series of power point slides that I put together for this explanation and I am happy to share them (just send me an email and I will email them to you). However, I have decided that next time it will be required reading.
I’m curious if others have tried using this article in their negotiation classes and/or if you have other ideas of what you have changed recently that you think worked well in teaching negotiation.
NPR ran a story on Saturday about one high school in Michigan and its use of a “conflict resolution room” and peer mediators to help students to either prevent conflicts from becoming worse, or to deal with them after they have become violent. The story also discusses how the high school uses restorative justice processes for some of these conflicts.
Suspensions have decreased by 10% since this high school started using peer mediation, restorative justice, and the conflict resolution room. This is significant as studies clearly indicate that students who are suspended are less likely to graduate and more likely to end up in the criminal justice system (the “school to prison pipeline.”).
This is the link to listen to this story which includes interviews with high school students who participated and their accounts of why they thought the program was valuable.
Late last week the Supreme Court unanimously decided U.S. v. Davila, the full decision is here. This is not a ground-breaking case, and the holding is not a surprise. Yet it is the bigger question about how our criminal justice system routinely works that is embedded into this case, although not confronted or even explicitly commented on, that is interesting.
The basic facts are that the defendant, Anthony Davila, decided to plead guilty to federal charges and accepted a plea deal. However, three months before he entered his guilty plea, the federal magistrate (not the U.S. District Court Judge who accepted his plea), made a series of statements about the plea bargain that were clearly intended to encourage Davila to accept the plea bargain. Unlike in many states, the Federal Rules, under Rule 11 (c)(1), specifically prohibit judicial involvement in plea bargaining.
The U.S. Magistrate Judge’s statements to Davila included telling him:
“it might be a good idea for the Defendant to accept responsibility for his criminal conduct[,] to plead guilty[,] and go to sentencing with the best arguments. . . still available [without] wasting the Court’s time,[and] causing the Government to have to spend a bunch of money empanelling a jury to try an open and shut case.”
The Magistrate went on to say,
“the Government, they have all of the marbles in this situation and they can file that . . . motion for [a] downward departure from the guidelines if they want to, you know, and the rules are constructed so that nobody can force them to file that [motion] for you. The only thing at your disposal that is entirely up to you is the two or three level reduction for acceptance of responsibility. That means you’ve got to go to the cross. You’ve got to tell the probation officer everything you did in this case regardless of how bad it makes you appear to be because that is the way you get that three-level reduction for acceptance, and believe me, Mr. Davila, someone with your criminal history needs a three-level reduction for acceptance.”
The U.S. Supreme Court held that while these statements are a violation of Rule 11(c)(1) the defendant is not entitled to a vacatur of the plea if he did not suffer any prejudice due to the violation in his decision to plead guilty. In doing so, they resolved a Circuit conflict on this question.
What is interesting to me in this case is not that the defendant lost (that could be expected). Or that the court decided that a Rule 11(c)(1) violation is not, in and of itself, enough to vacate a guilty plea. What is interesting is how routine it is. The statement from the U.S. Magistrate Judge is a very common statement from the bench to defendants and accurately sums up the situation that many find themselves in: the government holds all the marbles and the best they can do is go to the cross. This may be even more true in the federal system with the federal sentencing guidelines that give very real deductions to defendants who accept responsibility by pleading guilty as compared to those who press forward to trial and are convicted.
The statement by the U.S. Magistrate is not substantively outrageous as he was accurately summing up the situation the defendant was in, although such statements in and of themselves may be more unusual in the federal system due to the federal rules. In my practice it was common for a judge to speak directly to my clients about the plea deals if they did not quickly accept the deal, which did not violate any rules in California. Some even went so far as to say a version of “I promise you, if you go forward to trial on this case and are convicted, I will sentence you to more time than this plea deal.” Statements like that are highly coercive. And, despite many of my clients later declaring in open court that they were not threatened, I think it clearly qualifies as a threat to encourage the defendant to take the deal. But, it is routine. Every player in the system recognizes what is going on. Prosecutors recognize that a little talk from the bench may help convince the defendant. Judges realize they hold power and prestige and that defendants often listen to them in a way that they don’t listen to their own lawyers. And, from my perspective as a defense lawyer, it was often my plan of last resort when I was concerned that my client would suffer real harm by rejecting a deal in a case that he could not win.
This is where the concept of harmless error becomes complicated. If the harm we are concerned about is just to the defendant (which is the Court’s analysis) then it is very simple: would the defendant have been worse off if he didn’t take the deal or were some substantive rights violated in the process? The answer to those questions are usually, no. But, if we are concerned about a larger harm, it is not such a simple question. Should it be ok to have a system where going to trial is such a dangerous proposition for a criminal defendant that almost any amount of persuasion is considered ok and not “harmful” for the defendant? This is a much more complicated question which, not surprisingly, U.S. v. Davila doesn’t even begin to address.
OJ Simpson will be back in court this week in Las Vegas bringing an appeal from his 2008 armed robbery and kidnapping conviction in 2008. He has apparently filed, through his new lawyer, a 94-page petition for a new trial—which reportedly includes 19 specific issues that the court has agreed to hear “mostly claiming that lawyer Yale Galanter provided such poor representation that Simpson deserves a new trial.” For more information, see here.
One interesting point is the issue of whether Simpson’s lawyer failed to convey a plea offer. Simpson is reportedly stating that if the offer had been conveyed, he would have taken it rather than going forward with trial. This is essentially the same scenario of Missouri v. Frye, a case the US Supreme Court decided in the last term in which they held that the failure to convey the offer constituted ineffective assistance of counsel. I blogged about that decision here .
The twist in the current OJ Simpson appeal is that the prosecutor is reportedly denying there were serious plea negotiations which would mean Simpson’s defense lawyer did not fail to convey any offer as there wasn’t a specific offer made. This might lead to an even more interesting question: Is it ineffective assistance of counsel if a defense lawyer does not negotiate a plea offer in a case? Clearly there are cases where the prosecutor will make no offer due to the charges (murder cases are frequently in this category). But, Simpson’s case doesn’t seem to fall into the category of the type of case where no offer would be made. In these circumstances, is it the defense lawyer’s duty to negotiate an offer, even if their client says they don’t want one? I know that when I was a public defender I considered it my job to negotiate the best offer possible for every case. I had a lot of clients who initially told me “no deals” but when confronted with the reality of going to trial became very willing to take a deal. It would seem to me that negotiating a firm plea offer is something defense lawyers should be striving to do as part of their basic preparation in every case.
But, the Simpson appeal may not reach this question.
The Texas state legislature meets every other year for a five month term of frenzied law-making. This spring we are in the midst of one of these legislative sessions. I recently learned of a proposed bill that involves restorative justice, which has some interesting pieces to it. This bill, S.B. 1237 , expressly authorizes the state to refer criminal cases to an “alternative dispute resolution system” if one already exists in the county. This can happen “regardless of whether the
defendant in the criminal case has been formally charged.” However, “the state must obtain the consent of the victim to the referral.”
Apparently the contentious issue in this bill is how it will be funded as it authorizes the “entity that provides services for the resolution of criminal disputes under this chapter” to “collect a reasonable fee set by the commissioners court from a person who received the services, not to exceed $350.” The bill states this fee cannot be collected from the victim.
My sources tell me that ordering the offender to pay is the issue that may keep this bill from becoming a law due to concern that defendants will be forced to pay for these services, even if they have not been charged or convicted of a crime. I find it interesting that the substance of the bill–whether to use restorative justice in criminal cases–is not the sticking point and the use of restorative justice seems to be accepted as a good idea.
Despite this apparent acceptance in Austin, Texas does not frequently use restorative justice processes such as conferencing or victim offender mediation to resolve criminal cases pre-conviction. The exception seems to be in juvenile cases, which is not unusual in the USA. The heavier use of restorative justice in Texas seems to be post-conviction which this bill, as I read it, would not affect.
It seems unlikely that this bill will pass but the fact that it was seriously discussed and made it out of committee indicates to me that Texas, like other states in this country, is continuing to look at ways to reform their criminal justice system and moving beyond simplistic “lock ‘em up” policies and proposals. Texas is already an active user of problem solving courts, such as drug courts and mental health courts. Reports indicate that the increased use of these alternative processes may be one reason why Texas recently reduced its incarceration rate for the first time in decades. See here. For example, Texas is one of a handful of states in this country that requires drug courts in any county with a population of more than 200,000. This bill is an indication that even restorative justice may become more common in Texas. Maybe.
Rishi Batra, currently a Visiting Assistant Professor at Whittier Law, and soon to be an Assistant Professor at Texas Tech Unveristy School of Law (congratulations Rishi!), has a new article that is being published by the Cardozo Journal of Conflict Resolution: Lafler and Fry: A New Constitutional Standard For Negotiation, available here .
The abstract is:
In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v.Frye, the Supreme Court extended the Sixth Amendment right to effective assistance of counsel to cover ineffective assistance by defense counsel solely in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that “defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires.” This paper explores the implications of this new constitutional minimum standard for counsel in the plea bargaining context.
The paper examines the Frye and Lafler decisions in light of the Supreme Court’s previous rulings, and shows that the Court made broad rulings that extend ineffective assistance jurisprudence to the larger negotiation context of plea bargains. It then looks to existing standards of professional practice, such as ABA standards, case law, and negotiation texts, to find guidance for lower courts in determining how ineffective assistance may be shown in the negotiation of plea bargains. Most importantly, it looks at new types of claims that defendants may bring that may now be considered ineffective assistance: (1) poor preparation, (2) trading off the interests of one client for another, (3) taking no time for a plea bargain negotiation, (4) antagonizing the prosecutor, and (5) refusing to bargain. For each of these we attempt to apply existing standards to consider whether a court could uphold an ineffectiveness claim based on poor attorney performance. It ends by examining other hurdles that petitioners will have to face in bringing these claims, and offering suggestions for future scholarly work.
The New York Times reported here yesterday that the judge in the Martha Stewart-JC Penny-Macy’s contract dispute ordered the parties into mediation. This is after three weeks of testimony in a bench trial that consolidated two law suits. According to the NY Times this will be the first mediation in this case. Apparently, previously, JC Penny and Martha Stewart were willing to go to mediation “but ‘other parties were not amenable.’”
It will be interesting to see the outcome of the mediation as this case seems to be a classic example of a breakdown in communications. Reportedly, Martha Stewart and Macy’s CEO, Terry J. Lundgren, were good friends until the day that Ms. Stewart called him to tell him about the deal with JC Penny. Ms. Stewart testified that, “I don’t know if I got through even half the points before he hung up.” For more of Ms. Stewart’s testimony, see here. Reportedly, Ms. Stewart and Mr. Lundgren did not speak after that phone call until they were both in court to testify. And, then they “had a productive conversation regarding the ongoing contract dispute.” It seems the Judge’s order to go to mediation was after this “productive conversation.” If the reports are true, that it is the first time Ms. Stewart and Mr. Lundgren spoke to each other, it makes me wonder why the various parties weren’t brought together earlier in the case. This seems another example of the value of having the parties present at earlier stages in the case and the potential wasted time and money when the lawyers do all of the appearances without their clients.
When I read news articles on-line I now make a conscious habit of not reading the comments. It turns out this is probably a good thing for more reasons than just that the comments are often annoying. As one commentator noted, “The online peanut gallery can get you so riled up that your ability to reason goes out the window.”
A recent study by George Mason University, using a story about nanotechnology, concluded that rude or “flaming” comments polarized the audience and made people entrench in their own beliefs so they are less open to listening to the other side. According to this study, merely reading the comments makes one respond emotionally and the thinking process is therefore more defensive.
I wonder how much this “on-line culture,” in which nasty, rude, and inflammatory comments are the norm, has contributed to the overall partisan nature of politics in the USA. I wonder if disabling the comments section for newspapers—forcing people to go back to the “old school” methods of letters-to-the-editor (which are not all published) might be helpful. Or is the genie so firmly out of the bottle that there is no going back?
The recent piece, “The Science of Why Comment Trolls Suck,” describing the George Mason study can be seen here.