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Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution

Judges Who Help Us Expand Our ‘Crabbed View’ of Justice Beyond Criminal Prosecution


Joseph Margulies, professor of law and government at Cornell University, recently remarked, “In the carceral state, we have developed such a crabbed view of justice that we imagine it as nothing more than a criminal conviction … I hope we want accountability for what happened, and change to ensure it never happens again. Why should we think a criminal prosecution is the only — or even the best — way to achieve these goals?”

Those who resist this “crabbed view” may wish to examine a little-known area of the criminal law, in which judges are able to step in and declare that a conviction would be the very opposite of justice. Fifteen states (and Puerto Rico) give judges the power to dismiss prosecutions “in the interests of justice,” or, in other words, to declare that, regardless of the strength of the evidence, a dismissal would get us closer to justice than would continued prosecution. Four states (and Guam) have de minimis dismissal provisions, which serve the same ends. Scholars often ignore these provisions; practitioners often fail to invoke them. But judges use them — multiple examples are discussed in this recent article — and in doing so they reveal surprising things about how they see justice, and their role in securing it.

Many experts have told us that the most powerful players in the criminal justice system are prosecutors. But in these 19 states, judges can check prosecutorial power. Indeed, Connecticut’s dismissal statute has the purpose of “prevent[ing] unchecked power by a prosecuting attorney.” In jurisdictions with these provisions, judges can — and do — dismiss when they detect injustice in, for example, the anticipated sentence, the anticipated collateral consequences, law enforcement bias, law enforcement misconduct, or a waste of taxpayer money.

Different states conceptualize this judicial role differently. In New York, the dismissal statutes (one for felonies, and one for misdemeanors) are said to “interpose the court between the prosecution and the accused.” In California, the dismissal statute allows for a situation in which a judge grabs the reins, “takes charge of the prosecution, and acts for the people.” And in New Jersey, the judge is said to stand as the “gatekeeper” of the criminal law, vigilantly ensuring that it be used for proper ends only.

Some have called for this power to be available in jurisdictions that do not provide it. Recent filings in Florida and in North Carolina (states that, like the rest of the southeastern United States, lack these provisions) have urged judges to find this kind of power within their state’s law. One judge on the D.C. Court of Appeals was forced, in the absence of such a statute, to concur in the affirmation of a conviction, but he declared that the prosecution in question, which centered around an allegation of grabbing a cellphone after a long, hot day at the DMV, was just the kind of thing that merited dismissal. And District Judge Frederic Block has asked “[S]hould not federal law recognize, as New York State does, that in a worthy exceptional case, ‘the letter of the law gracefully and charitably [should] succumb to the spirit of justice’?”) (Indeed, in 1970, the Federal Rules Committee proposed adding such a provision to the Federal Rules of Criminal Procedure, but it went nowhere.).

The downsides of these provisions aren’t hard to imagine. How much discretionary power do we wish to place in the hands of an individual, even or especially an elected one? With discretion comes the risk of bias, and all kinds of assessments weighed in considering dismissal — assessments of harm, wrong, pain, and worth — are hotspots for implicit bias. “Appellant is somebody’s daughter. I have a daughter,” said one judge as he dismissed a prostitution charge, thus making explicit the feeling of connectedness that was moving him to dismiss. Our feelings of connectedness have an uneven reach, and our state judiciary is not representative. 83 percent of state trial judges, for example, are white.

In addition, these dismissals can tackle only a tiny bit of injustice. Invoking separation of powers concerns, judges frequently limit their own power. New York judges, for example, have declared that these dismissals occur only because of “the tiniest crack that allows a sliver of discretion to shine through when Justice cries out for mercy in spite of the strict application of the law.” Others have said that these provisions should be invoked only to avoid “absurd” results. But where to draw the line? Some might say our entire system of mass incarceration is “absurd.”

Whatever the fallibility of what these judges are doing in individual cases, they are doing something important as a group. They return, again and again, to an interest in non-criminal forms of accountability, often dismissing prosecutions where other means exist to address the alleged harm, or where prosecution would thwart productive change. They often treat the criminal law as a last resort, rather than the default. These judges inspire us to shed our “crabbed view” of justice, in Margulies’s words, expanding our vision to include possibilities far beyond the criminal courts.

Editor’s Note: A fuller treatment of this topic can be found in Dismissals as Justice, Alabama Law Review (2017).

The False Promise of Bail Reform in Dallas County: Debate Continues While People Languish in Jail

Dallas County Jail
Andreas Praefcke [CC BY 3.0]

The False Promise of Bail Reform in Dallas County: Debate Continues While People Languish in Jail


For five days, 47-year-old Shannon Daves sat in solitary confinement in a Dallas County jail because she couldn’t afford to pay $500 bail. Daves, who is unemployed and homeless, was isolated because she is transgender — allegedly to protect her from the jail’s general population. She faces a misdemeanor property theft charge.

She and five other indigent plaintiffs are at the center of a lawsuit filed Jan. 21 against Dallas County, challenging a cash bail system that leaves low-income defendants no choice but to wait in jail for their court dates.

“Except for the attorneys representing me … I am not allowed to talk to anyone,” Daves wrote in her affidavit. “I cannot afford to buy my release from jail … I feel that because I am transgender they have allowed me to fall through the cracks.”

Daves and her co-plaintiffs allege that they were never asked by a judge whether or not they could afford to pay their set bond amounts, which range from $500 to $50,000. The lawsuit, filed by Civil Rights Corp, The Texas Fair Defense Project, the ACLU of Texas, and the national ACLU, argues that the county routinely assigns bail to defendants facing misdemeanor and felony charges without first assessing individuals’ ability to pay, violating their constitutional rights.

The complaint calls for an end to the county’s “wealth-based post-arrest detention scheme,” asking the court to consider defendants’ ability to pay and to weigh alternatives to detention, reforms that other advocates around the country are also demanding.

Last Tuesday, Faith in Texas, a faith-based social justice organization, and the Texas Organizing Project Education Fund joined as plaintiffs in the lawsuit. In an amendment to the original suit, these groups note that they have been barred by the Dallas County Sheriff from attending court proceedings at which bail amounts are set, which they consider a First Amendment violation. They asked that the hearings be made open to the public.

“To Sit in Jail is to Lose Hope”

Brittany White, an organizer with Faith in Texas, understands the pain of waiting behind bars, unable to pay bail. Before spending five years in an Alabama prison on a marijuana trafficking offense, White sat in jail for six weeks without bond. After she lost at trial, she spent nine more weeks in county jail, waiting to be sent to prison.

“To sit in jail is to lose hope — to lose your home, your car, your job,” said White. She and her colleagues bailed out two of the plaintiffs in the lawsuit, including Daves, and provided assistance to others.

“Our mission was just to give them a meal, and get them home safely so they didn’t get released in the middle of the night without a way home,” said White. “What we weren’t prepared for is some people didn’t have homes to go to.”

“I’ve been incarcerated, but never incarcerated poor,” White continued. “I always had someone who would accept my phone call, buy my hygiene products, write me letters … I never came out of jail wondering ‘Where am I going to go.’ But I am not the norm.”

The norm described by White — the incarceration of the poor, who can’t afford bail, much less a roof over their heads when they get out — is at the core of this lawsuit. Across the country, the work done for years by organizers like White, as well as firms like the Civil Rights Corps, is slowly catching on and catalyzing change.

In Dallas, local officials recognize that the bail system is problematic. In a conversation with In Justice Today, Dallas County Judge Clay Jenkins expressed frustration with the current state of the county’s bail system, which he described as both unfair and a waste of money.

“It makes no sense that a person of affluence who is accused of a violent crime may be able to bond out within hours of arrest, but a person who is homeless and charged with trespassing or vagrancy, or a single mom who failed to pay her parking tickets, should be incarcerated for days and be taken away from their family,” he said. “We spend tens of millions of dollars a year incarcerating poor people.”

The Dallas lawsuit comes after a similar class action suit filed in Harris County, Texas in May 2016. In April 2017, a federal judge ruled in favor of the plaintiffs in the Harris County case, and ordered the county to release misdemeanor defendants who couldn’t pay their bail within 24 hours of their arrest. The ruling is now on appeal before the Fifth Circuit.

“We’ve Been Doing This for Years”

Judge Jenkins is one of several key players in Dallas’s criminal justice system — including probation department officials, presiding judges, and the county’s head public defender — who have been meeting for two years to hash out a better approach to bail. But advocates say that progress is uneven, as the lawsuit shows, and the process has been far too slow.

County Commissioner John Price Wiley told In Justice Today he was disappointed by the Dallas groups’ decision to sue. I feel “very good about the kind of collaborative [reforms] we’ve put into place,” he said. “We didn’t just start doing this because ACLU showed up on the scene down in Harris County. We’ve been doing this for years.”

The county did adopt a pretrial services division in 2015, which manages various forms of supervision for people released on bond, and signed off on an agreement allowing certain defendants facing low-level charges to have their cases dismissed if they repeatedly return to court every 60 to 90 days over a period of months, while participating in a diversion program.

This alternative to jailing low-level defendants aims to allow them to go about their lives and maintain jobs and community ties while dealing with their cases.

On Tuesday, county commissioners met with two opposing parties: A bail bondsman, and the director of the University of Houston’s Criminal Justice Institute, to discuss the way forward, the Dallas Observer reports.

Richardson, the public defender, acknowledges that some gains have been made. Dallas County has “so many specialty diversion court programs, and that’s a good thing,” she said. But in practice, she explained, many of the classes and diversion programs have associated fees that must be paid to the District Attorney’s office and to the probation office — making them inaccessible to her clients, who, like the plaintiffs in the lawsuit, are indigent. A county drug diversion program, for instance, costs participants more than $1,000.

While partial or full fee waivers are available to poor clients in theory, the documentation required to verify a person’s financial status often makes it difficult for Richardson’s clients to actually obtain a waiver. If an individual is transient, for example, they can’t provide proof of address. Richardson recently reviewed data from the probation office documenting waiver applications and found the majority were not accepted.

“It’s been my experience with past clients who got kicked out, they’ll say they got kicked out because they failed a report or drug test, but the real issue is that person wasn’t paying,” she said.

Advocates hope the lawsuit will tip the scales away from endless debate and spur the county into action. “While they’re trying to figure out what are the best next steps are, there are people lying in bed in jail for days,” said White, the organizer with Faith in Texas. “Their lives are deteriorating around them.”

If We Don’t Have Bail…Then What?

Even if Dallas judges were more careful in assessing who could and could not afford bail, they’d still have another problem to work out: Who should be released pending trial and who should be held? Some cities and states have drastically reduced their use of cash bail, replacing their money-based system nearly wholesale with a “risk-based system,” one in which judges can order that a person be confined pretrial — with no possibility of paying their way out — if they are deemed to have a high likelihood of absconding or committing another crime.

Central to the conversations taking place among stakeholders in Dallas County is how judges should decide who should remain in jail. Some jurisdictions rely on what are called “risk assessments” to help make that determination. The data used by these tools varies, but might include prior criminal offenses, social support systems, or past troubles with school or work. That information, often gathered by a pretrial officer, is presented to a judge to inform their decision-making. The goal, proponents of these tools say, is to move away from a system that depends on a person’s ability to pay, to a system based on actual risk.

Last year, Dallas began using such a tool, called the Ohio Risk Assessment System, in cases involving mentally ill defendants facing misdemeanor charges. The county now wants to use a risk assessment tool for all pretrial detention decisions, but needs to decide which one. It could implement the Ohio Risk Assessment System, or a tool developed by the Arnold Foundation, which is currently used in at least 38 other jurisdictions.

Richardson, the public defender, prefers the Arnold tool, because unlike the Ohio tool, it doesn’t require the defendant to be interviewed by a pretrial officer — a conversation that increases the odds of an interviewee unintentionally incriminating him- or herself.

“Even though they say that [the pretrial officer] tells them not to talk about their case, sometimes they start saying stuff, and that information is definitely going to be recorded and could be used against them later,” says Richardson.

After deliberating for months over which tool to adopt, the county spent more than $100,000 to hire an outside consulting firm to help make the call. But Richardson says the firm eventually stated that “either one would be fine,” leaving the county without a final decision. On top of that, Richardson says, some county officials are concerned about the potential costs of bail reform. The introduction of either tool could result in more people being supervised in the community rather than in jail, requiring the county to hire dozens of pretrial officers.

The potential for the vast increase in state supervision of low-income defendants is also a concern for Elizabeth Rossi, a lead attorney with Civil Rights Corps, who filed the Dallas County lawsuit — but for a different reason. “We don’t consider it a win for impoverished people and people of color to simply be transferred from a system of mass incarceration to a system of mass surveillance,” she said.

The success of these tools to actually reduce the number of people in jail pretrial, Rossi notes, “depends on who wields it, and what the person or entity’s goal is.” Ultimately, risk assessments have “limited utility,” she said, and should be used in tandem with other resources to determine who should be detained.

“Nibbling Around the Edges”

Even when a new assessment tool is chosen, as it was in Harris County following the 2016 lawsuit (the Arnold Foundation’s tool), Jay Jenkins of the Houston-based Texas Criminal Justice Coalition cautions that this kind of software isn’t a fix-all.

“If nothing else, the Harris County litigation showed us that a new risk assessment tool is not meaningful or sufficient enough to address underlying legal and constitutional deficiencies in their bail system,” says Jenkins. “It’s still nibbling around the edges.”

Rossi agrees. “Pretrial assessment tools are not a panacea,” she said. In a criminal justice system replete with “racism and classism,” she explained, risk assessment tools often rely on data that reflects those biases, exacerbating the disparate treatment of low-income people of color.

In Harris County, Rossi says, despite the use of a risk assessment tool, many defendants who pose little danger to society are still inappropriately detained pretrial. Moreover, the county does little in the way of offering social services for people who allegedly pose a high “risk” of failure to appear on their court dates.

For example, risk assessment tools might determine that someone is at a high risk of not appearing in court, but that risk could be the result of homelessness, a job with unpredictable hours, or not having a car. Those risks could be relieved by the court, negating the need for detention — but that doesn’t always happen in practice.

“You might have a very high risk of not appearing if you live in a tent in the woods outside of Harris County,” Rossi said. “But that risk is easily mitigated if somebody can provide you with transportation to get to court.”

Dallas County Judge Jenkins acknowledges the risks of blindly adopting a tool that could replicate problems already present in the local justice system. “We’ve got to guard against that happening here — that’s why we are spending money to bring people through to talk to us about our options,” Jenkins told In Justice Today. “A risk assessment tool is one way of doing it, but I’m open to discussing other ways to do it.”

But Jenkins, like other Dallas County officials, is quick to point out the gains he feels the county has already made.

“We approved millions of dollars in new positions for pretrial officers to help the judges,” says Jenkins. “We are putting our money where our mouth is.”

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13-Year-Old Charged with First-Degree Murder in Oklahoma Faces Life in Prison

13-Year-Old Charged with First-Degree Murder in Oklahoma Faces Life in Prison


In Oklahoma last month, the Lincoln County District Attorney’s Office charged a 13-year-old boy with first-degree murder after an October play date ended with him hitting his two friends (ages 8 and 10) with a crossbow arrow, killing one. According to NewsOK, the arrow went through the 10-year-old, killing him, and punctured the 8-year-old in the arm. The 13-year-old boy told authorities that the incident was an accident. However, the 8-year-old who was hit told investigators that the 13-year-old was angry at his friends.

The case was picked up by national outlets, including the Associated Press and CBS News, which noted that the 13-year-old boy is one of the youngest ever in Oklahoma to be charged as an adult with first-degree murder, a charge that comes with a mandatory minimum sentence of life in prison. But one thing was left unsaid: The prosecutor seems to be using an inflated charge, given the crime, in order to put a 13-year-old behind bars.

In Oklahoma, first-degree murder usually requires “malice aforethought” (also known as premeditation). Second-degree murder, on the other hand, is defined as not premeditated, but with the intent to harm or kill. That’s different from manslaughter, which includes homicides committed in the heat of passion, without malice or intentional harm. The Lincoln County DA’s office did not respond to a request for comment — including questions about why the office decided to charge the 13-year-old boy with first-degree murder instead of second-degree murder or manslaughter.

A first-degree murder charge is the only way for a prosecutor in Oklahoma to automatically charge a 13-year-old as an adult without a judge’s ruling. A first-degree murder charge also comes with a mandatory minimum sentence of life in prison, life without parole, or death. As a comparison, second-degree murder in Oklahoma comes with a mandatory minimum of 10 years in prison. Given his young age, if the 13-year-old boy had been charged with anything other than first-degree murder, he would have been charged in the juvenile justice system.

There, his age and background would come into consideration in the courtroom and there would be programming and mental health services to help him with rehabilitation. A prosecutor can seek to have a child’s case transferred to adult court if that child is convicted of a felony, but the request must be reviewed by a judge and supported by “clear and convincing evidence” that prosecution as an adult is warranted.

Samantha Buckingham, director of the Juvenile Justice Clinic at Loyola Law School, declined to discuss the Oklahoma case specifically, but told The Appeal that prosecutors often file more serious charges to bring cases in adult criminal court rather than proceeding in juvenile court. “Prosecutors who have the power to directly file charges in adult court will utilize that power when they charge the most serious offense, which is oftentimes unwarranted by the facts, evidence, and mitigation present in the case,” she said.

It is not entirely set in stone that the 13-year-old boy’s case will remain in adult court, though proving he should be tried in the juvenile system now falls on his attorney’s shoulders: Oklahoma law allows the boy’s attorney to file a motion asking the judge to certify him as a juvenile. The judge has also ordered a psychological evaluation for the 13-year-old.

The prosecutors’ push to charge the 13-year-old boy as an adult and seek a life sentence flies in the face of recent juvenile justice reforms across the country. The most notable reform occurred after 2012 when the Supreme Court ruledin Miller v. Alabama that mandatory life without parole sentences for children convicted of murder were unconstitutional. The ruling cited research on children’s brain development and the outcomes of putting children through the adult criminal justice system. Studies show that children are more likely to re-offend if they go through the adult criminal justice system, while their chances for rehabilitation are far greater when they go through the juvenile justice system.

There is “an indisputable body of research that shows that youth’s brains are still developing through their teen years [and up until age 25]. In fact, this is such an intense period of growth that it is as critical to a young person’s future as the well-known brain development that takes place in the ages of 0 to 3,” Sarah Bryer, executive director of the National Juvenile Justice Network, told The Appeal.

Since the Supreme Court ruling, at least 20 states, plus Washington, D.C., have banned juvenile life without parole sentences. Another six states have no people currently in prison who were sentenced to life without parole as juveniles. Oklahoma is in neither of these categories. In 2016, the most recent data available, Oklahoma had 10 people in its prison population who’d been sentenced to life without parole as juveniles. Other states, like Louisiana, Pennsylvania, and Michigan, had over 200 people in prison in 2016 who were sentenced to life without parole as juveniles. More than 20 states have no child lifers currently in prison.

Despite recent legislation in many states that followed the SCOTUS rulings, there are still factors stopping children from being treated like kids in the criminal justice system. “We don’t have a juvenile court yet that handles all people up to 24 or 25 years old,” Buckingham noted. “Reforming the law to provide for hearings before a judge in each and every case will afford a critical opportunity to fully consider whether transfer of the child’s case to adult court is the best course for long-term concerns like recidivism and rehabilitation.”

But, in Oklahoma, the 13-year-old’s case demonstrates how prosecutors may try to get around any new legal restrictions: by filing trumped-up charges that go against the grain of SCOTUS opinion and the state’s preference — as reflected in its criminal code — in order to get children into the adult criminal justice system.

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