sentencing – The Interdependent Third Branch

Enough.

Like all of us, I have been struggling to process the extraordinary events in Washington, DC over the last couple of days. Since this blog was founded in 2017, I have made every effort to afford Donald Trump the respect due to the Presidential office. That form of respect, I felt, was owed to American democracy itself.

But Trump clearly respects neither the office nor American democracy. The insurrectionist mob that attacked the U.S. Capitol on Wednesday had assembled and moved at his direction. And he did virtually nothing to stop the carnage, placing thousands of people directly in harm’s way. It is entirely proper that he be removed from office immediately.

The aftermath of the insurrection offered some comfort for those who still have great faith in America as the beacon of freedom and democracy. I watched the Senate return to its chamber and continue its debate, with members on both sides of the aisle recognizing the gravity of the situation and the particular blessings of liberty that elevated them to membership in the greatest deliberative body in history. Perhaps this shocking moment will remind all of Congress — all of our leaders, elected or unelected — that they bear heavy responsibilites that come with public service, among them reasoned debate and respect for the rule of law. Maybe — just maybe — they will lead rather than snipe. Maybe they will contemplate rather than tweet. Maybe they will show us that they, too, and worthy of the offices with which they have been entrusted.

And what of the judges? A SCOTUSBlog editorial has called on the Supreme Court to issue a statement confirming the basic fact that Joe Biden won the Presidential election. I think that is unlikely, given the Court’s reticence to express any view on an issue not directly before it. But it is nevertheless a good idea. The Justices are Americans first, and through a combination of merit and happenstance they find themselves in a position of prominence at this moment in history. They sat silently while another mob destroyed a federal courthouse in Oregon this summer. It is time to speak up. History will remember what they say — and what they don’t.

Other judges will eventually have their say, as the insurrections are rounded up and brought to justice. I am reminded of a moment nearly seven years ago, when Boston was shaken first by the bombs that detonated at the finish line of the Boston Marathon, and later that week by a manhunt that shut down the city and surrounding towns for an entire day. It was the first time I heard the phrase “shelter in place,” and it was terrifying. When I returned to school after the incident, I struggled for what to say to my students. I decided to read them a portion of the statement given by Judge William Young when he sentenced another terrorist — “shoe bomber” Richard Reid — in 2004. It captured all the feelings I had that day:

You are not an enemy combatant. You are a terrorist. You are not a soldier in any war. You are a terrorist. To give you that reference, to call you a soldier gives you far too muich stature. Whether it is the officers of government who do it or your attorney who does it, or that happens to be your view, you are a terrorist. And we do not negotiate with terrorists. We do not treat with terrorists. We do not sign documents with terrorists. We hunt them down and bring them to justice.

So war talk is way out of line in this court. You’re a big fellow. But you’re not that big. You’re no warrior. I know warriors. You are a terrorist. A species of criminal guilty of multiple attempted murders.

In a very real sense Trooper Santiago had it right when first you were taken off that plane and [placed] into custody, and you wondered where the press and TV crews were, and [he] said, “you’re no big deal.” You’re no big deal.

What your counsel, your able counsel and what the equally able United States Attorneys have grappled with, and what I have as honestly as I know tried to grapple with, is why you did something so horrific. What was it that eld you here to this courtroom today. I have listened respectfully to what you have to say. And I ask you to search your heart and ask yourself what sort of unfathomable hate led you to do what you are guilty and admit you are guilty of doing.

And I have an answer for you. It may not satisfy you. But as I search this entire record it comes as close to understanding as I know.

It seems to me you hate the one thing that to us is the most precious. You hate our freedom. Our individual freedom. Our individual freedom to live as we choose, to come and go as we choose, to believe or not to believe as we individually choose.

Here, in this society, the very winds carry freedom. They carry it everywhere from sea to shining sea. It is because we prize individual freedom so much that you are here in this beautiful courtroom. So that everyone can see, truly see that justice is administered fully, individually, and discretely.

It is for freedom’s sake that your lawyers are striving so vigorously on your behalf and have filed appeals, [and] will go on in their … representation of you before other judges. We care about it. Because we all know that the way we treat you, Mr. Reid, is the measure of our own liberties.

Make no mistake, though, It is yet true that we will bear any burden, pay any price, to preserve our freedoms.

Look around this courtroom. Mark it well. The world is not going to long remember what you or I say here. Day after tomorrow it will be forgotten. But this, however, will long endure. Here, in this courtroom, and courtrooms all across America, the American people will gather to see that justice, individual justice, not war, individual justice is in fact being done.

The very President of the United States through his officers will have to come into courtrooms and lay out evidence on which specific matters can be judged, and juries of citizens will gather to sit and judge that evidence democratically, to mold and shape and refine our sense of justice.

See that flag, Mr. Reid? That’s the flag of the United States of America. That flag will fly there long after this is all forgotten. That flag still stands for freedom. You know it always will.

Custody, Mr. Officer. Stand him down.

Judges speak for our communities, our ideals, and our shared values. Many of them will have the chance to reiterate those ideals, proudly and publicly, in the coming months. It is altogether fitting that they — and we — do so. America is better than this terrible moment. Let’s get our house in order.

Singapore court sentences defendant to death via Zoom

Courts worldwide are using videoconferencing technology for a wide range of proceedings during the coronavirus pandemic, including (in some instances) trials. And disturbing new ground was broken this past week, when a judge in Singapore sentenced a defendant to death by remote video. The defendant had been found guilty of participating in a drug deal, and Singapore has a zero tolerance policy when it comes to illegal drugs.

This is probably not the place or time to reflect on Singapore’s draconian criminal laws and sentencing practices. But regardless of where one falls on the capital punishment debate, there is something especially dehumanizing about receiving a death sentence through a video screen. The judge (or jury) should have to look the defendant in the eye–face to face–when assessing such a punishment.

American courts have been experimenting with Zoom sentencing, and in fact a federal district court is scheduled to sentence a white collar defendant by videoconference on June 4. But that defendant is based in France and is hoping to avoid prison time altogether; it is night and day when compared to the Singapore sentence.

(h/t John McCarthy)

COVID-19 and the courts: Where we are and where we might be going

A glance at the recent developments, and what to look for in the future.

It has been about seven weeks since the coronavirus pandemic began to affect state and federal courts in the United States. At this point, it seems worthwhile to set out the ways in which courts have responded, both by adjusting their own operations and by reaching out to others in the external environment. We can also begin to consider which of the current changes might stick after the pandemic subsides.

Hearings and transparency. Many state court systems have proven remarkably agile at moving in-court proceedings to telephone and videoconference platforms. Both trial and appellate courts are now holding regular hearings via Zoom (although some lawyers apparently need a reminder about appropriate dress). At least one state court has even conducted a full bench trial by Zoom. The federal court system has also made impressive strides, albeit with a bit more reluctance. In late March, the Judicial Conference of the United States authorized the Chief Judge of each federal district court to permit selected criminal hearings within the district to proceed by videoconference. Federal appellate courts have also begun conducting criminal hearings by videoconference. And the United States Supreme Court announced that after a coronavirus-induced hiatus, it would hear a handful of regularly scheduled oral arguments by telephone beginning in May. Continue reading “COVID-19 and the courts: Where we are and where we might be going”

How coronavirus is affecting the courts — April 3 update

The novel coronavirus is affecting societies worldwide, and judicial systems are no exception. Here is a selection of the latest news and profile stories on how courts are dealing with the epidemic:

What is the state of Israel’s courts in the time of coronavirus? (Jerusalem Post)

Uncertainty looms over Supreme Court as lower courts transition to teleconferencing (Washington Free Beacon)

Federal Judge’s Sentencing acknowledges COVID-19 (Forbes) (a story about the sentencing of certain defendants in the “Varsity Blues” college admissions scandal)

COVID-19 and Online Dispute Resolution: It’s a Whole New World Out There (op-ed for the Connecticut Law Tribune)

7th Circuit suspends most paper copies to slow spread of COVID-19 (Chicago Daily Law Bulletin)

Previous roundup coverage here. And check the home page for additional discussion of coronavirus and the courts.

Minnesota broadcasts criminal sentencings … and the world doesn’t end

One of the main concerns expressed by lawyers and judges about courtroom cameras is that they will lead to grandstanding and obnoxious courtroom behavior. But the experience in Minnesota state courts suggests that these concerns are overblown. Using a bit of a loophole in the law — sentencing proceedings do not require assent from the parties — more media are gaining camera access to high-profile sentencings. The results have been mostly positive.

There are ample reasons to want to protect the privacy of victims, jurors, and witnesses during trial. But there are also ample reasons to make the open forum of the courtroom truly open to everyone. Video access of court proceedings is assuredly compatible with safety, due process, and substantial justice.

The effects of dropping bail bond practice

Back in May, I flagged an interesting story about state courts radically revising the cash bail system for criminal defendants. The changes were notable in part because bail is a quintessentially American practice, and a classic example of the court system’s interdependence. In an op-ed today, Walter Olson argues that revisions to the bail system may also have had the unintended effect of causing judges to hold more criminal defendants in jail pending trial:

An early report in March by Kelsi Loos in the Frederick News-Post found that since October the share of Maryland defendants held without bail had increased from 10% to 14%. The Washington Post later reported that from September 2016 to May the figure had jumped from 7% to 15%.

Meanwhile, fewer released defendants are showing up for trial. The Post, confirming anecdotal reports, writes that the “failure to appear” rate in January was 14.5%, up five points from October. Failing to show up for court sets up a defendant for more-severe consequences down the road, which can include being held without bail.

At their core, principles of organizational independence teach that decisions have a wide range of ripple effects on all aspects of the organization. As Olson notes, it is too early to say whether Maryland’s numbers reflect causation, statistical noise, or something in between. But there should be little surprise that the decision to limit bail options, without providing other formal mechanisms to deal with moderate-level offenders, would lead to some noticeable changes in the way the system operates.

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