Articles Posted in Current Events

I recently learned about TED Talks.  In short, these are presentations by people who have “ideas worth spreading”.  If interested, you can learn more about TED Talks at TED.com.

Anne Milgram, the former New Jersey Attorney General, gave a TED Talk where she discusses what she calls “moneyballing criminal justice”.  In brief, Ms. Milgram wants to focus more efforts upon collecting statistical data surrounding arrests, convictions, and other aspects of the criminal justice process, and use it to make better decisions concerning basic issues, including whether to release or incarcerate someone after they have been arrested for a particular offense.  Ms. Milgram notes correctly that many judges rely upon instinct and experience when making this important decision, and that such decisions are therefore based upon subjective reasoning and are frequently incorrect.  She wants to develop a universal risk assessment tool that State and Federal judges can use to guide their decision making as to the “release or incarcerate” decision, which is one of the first major issues addressed in any criminal matter.  She likens her efforts to those used by baseball teams that selected good players using statistical analysis, as opposed to the purely subjective observations and instincts of scouts.

Many of Ms. Milgram’s observations are absolutely correct.  First, the only surprise relating to the fact that we spend $75 Billion annually on criminal justice is that the number seems small.  I always thought it was much larger.  Prisons and jails in this country are an industry unto themselves.  Next, our recidivism rate is obscenely high, leading to the obvious conclusion that a lot of this money is wasted.  Indeed, it often seems that the only thing we accomplish by the end of the case is to temporarily disable a defendant from having another encounter with the system.  We seem to focus more on “processing” defendants through the system, with no eye on long-term solutions to the problems associated with criminal conduct.  Additionally, Ms. Milgram notes correctly that there is astonishingly little helpful statistical data describing the operations of our system.  Interestingly, she failed to note that there is a federal agency called the Bureau of Justice Statistics that collects statistical data concerning various criminal justice issues.  However, the manner in which BJS identifies the subjects concerning which it will collect and analyze data has always been a mystery to me.  Further, many of the reports available on the BJS website are dated to the point where they are probably no longer valid.  Moreover, even if the material is helpful, I don’t know too many judges who make a habit of reading statistical reports from the BJS website. Continue reading ›

The New York Times recently published an article entitled “Final Word on U.S. Law Isn’t:  Supreme Court Keeps editing.”  (5/24/14)  Although it appears in the ostensibly “popular” press, every attorney needs to read this article and consider what it means for their practice.

Everyone relies heavily on Supreme Court opinions.  If we know that a new decision is due on an issue relevant to one of our cases, we almost instinctively defer action if possible to see whether the Court’s pronouncement will affect our strategy.  When these opinions appear, we all spend time pouring over them, because every word matters.  Anything thing the Court says – no matter how seemingly minor or trivial – can have a far-reaching effect on a particular case, area of law, or the legal system.

The problem is that there are actually several “generations” of Supreme Court opinions, and only the last version may truly be termed “final”.  The first version is the “bench” opinion, which becomes available when a new decision is announced.  The second version is the Slip Opinion, which appears on the Court’s website.  The third version is a softcover print, which is followed by the “official” version that appears in the United States Reports. Continue reading ›

New Jersey judges are currently appointed for initial seven-year terms.  At the end of this period, a judge’s appointment is reviewed by the Governor and the State Senate with an eye toward determining whether they should be reappointed with tenure, which would guarantee the security of their position until they reach the mandatory retirement age of 70.  The current administration has used this framework to construct a judiciary that reflects its own policies.  Judges who issue decisions during their initial seven-year term that are not in tandem with the administration’s views and choices stand a good chance of being denied tenure, which results in their removal from the bench.  Many New Jersey judges and lawyers have voiced concerns over the facts that such actions rob judges of the independence that is requisite to a court system that functions properly and fairly, and helps deliver justice to the State’s citizens.

One example that has remained with me for some time illustrates the point.  A number of years ago, much closer in time to when the current regime came to power, a non-tenured criminal judge rendered a decision in a case that was favorable to the defendant, who was a sex offender.  The judge was not simply trying to be “nice” to the defendant; rather, he did exactly what the relevant statute required in that case and under those circumstances.  Put somewhat differently, he simply did his job.  Nevertheless, he was subsequently denied tenure, apparently because of this decision.

But it does not end in the State’s trial courts.  Two New Jersey Supreme Court justices, one Democrat and one Republican, have been denied tenure.  It’s pretty clear that this occurred because the current administration view the New Jersey Supreme Court as an “activist” court with judges that “legislate from the bench”.  The debate over the administration’s efforts to remake the Supreme Court in its own image has taken on added prominence recently since the Chief Justice is completing his initial seven-year term and is up for reappointment.  Failing to reappoint a sitting Chief Justice would be virtually unheard of, even in a State with politics as colorful as New Jersey, but it is conceivable given the administration’s actions in this area. Continue reading ›