- Three episodes of the Cato Daily Podcast, all with Caleb Brown: “A Survey of State-Level Criminal Justice Reform” with Robert Alt of the Buckeye Institute; “Reforming Parole and Probation” with Marc Levin of the Texas Public Policy Foundation; “Getting Honest on Bail Reform” with Josh Crawford of the Pegasus Institute;
- In news of unconstitutional legislation, the lawmakers of Monroe County, N.Y. (Rochester) want to make it illegal to “annoy” a police officer [James Brown, WXXI, Eugene Volokh]
- Jury unanimity is required in federal criminal trials, but does the Constitution also require it at the state court level? [Federalist Society SCOTUS Brief video with Jay Schweikert on Ramos v. Louisiana, argued at the Court Oct. 7]
- In August New York Gov. Andrew Cuomo signed a law stripping state double jeopardy protections from Trump associates who may receive clemency in the future. It’s an improperly targeted enactment at best [Jacob Sullum, earlier]
- Denison, Texas drunk with multiple priors, lying on gurney in hospital, kicks police officer and gets 99 year sentence for that [Stan Smith, KXII]
- Lengthy profile of Philadelphia DA Larry Krasner, including his feuds with the local U.S. Attorney and Pennsylvania’s Attornry General. One disturbing data point: “Homicides in the city are up six percent and shootings are up 10 percent this year.” [Steve Volk, Philadelphia Magazine]
- Should an assault that does not injure its target count as non-violent? New York’s version of bail reform encounters strong pushback amid rash of street attacks [Israel Salas-Rodriguez, Khristina Narizhnaya and Laura Italiano, New York Post; Lauren Krisai, Jason Pye, and Norman Reimer, Slate; Rafael Mangual (New Jersey’s reform compare favorably); Scott Greenfield]
- “I think if they pay a small [amount of] money to us on the island, it would be better”: Vanuatu indigenous group says bungee jumping has roots in traditional land-diving ceremony [Prianka Srinivasan, ABC (Australian)]
- Thread on AirBnB liability for crime [Kate Klonick on Twitter]
- Federalist Society podcast with Andrew Grossman commenting on outcome in New York v. ExxonMobil [earlier and generally]
- “The New York Times and the sheriff do not understand the ‘stand your ground’ defense. Or they are purposefully misinterpreting it.” [Jacob Sullum, Reason; earlier on SYG]
- Claim: businesses have incentive to stop marketing and selling to perennially discontented persons, and law should restrain them from doing that [Yonathan Arbel and Roy Shapira, Vanderbilt Law Review forthcoming]
Can a victim of a later crime use New Jersey product liability law to sue a private foundation over alleged flaws in the alternative-to-bail algorithm it had developed for the state’s use? No, a federal district court has ruled, because 1) the algorithm isn’t a product, 2) proximate causation is lacking; and 3) it’s speech so the First Amendment acts as a bar [Eugene Volokh]
- In order to stick it to President Trump and any associates he may pardon, New York legislature moves to chip away at what had been strong protections against double jeopardy. Not good [Sam Bieler via Scott Greenfield, Jacob Sullum]
- Judge rules that New Jersey may not automatically suspend driving privileges over unpaid child support without a hearing to establish willfulness, lest it violate due process and fundamental fairness [New Jersey Law Journal; Kavadas v. Martinez on David Perry Davis website]
- Different views of the institution of cash bail [Alex Tabarrok at Brookings conference, Cato podcast with Daniel Dew of the Buckeye Institute, Scott Shackford]
- “To Seek Justice: Defining the Power of the Prosecutor,” Federalist Society short documentary video featuring Jessie K. Liu, Mark Geragos, Steven H. Cook, John Malcolm, Zac Bolitho, Bennett L. Gershman, and Clark Neily;
- “Florida lawmakers just voted to create a public registry of people caught paying or attempting to pay for sex….it will certainly transfer private money to the state, give bureaucrats something to do, and provide the public with people to gawk at and judge” [Elizabeth Nolan Brown, Reason]
- Wisconsin: “County Pays $90,000 Settlement To Man After Seizing $80,000 Judgment From Him Using 24 Deputies And An Armored Vehicle” [Tim Cushing in December]
A Capital News Service series published at Maryland Matters confirms that in Maryland, at least, bail reform has had trouble meeting its intended goals. In particular, while the number held for inability to meet bail has dropped sharply since the adoption of reforms in February 2017, Baltimore in particular has seen an offsetting jump in the rate at which judges hold defendants without making bail available. Statewide, “the number of people held with bail decreased from 29.8 percent to 18.4 percent over the past 18 months, while the number of people held without bail has increased from 13.6 percent to 22.6 percent.” [Alicia Cherem and Carly Taylor with sidebar by Kaitlyn Hopkins and James Crabtree-Hannigan] I reported on the same trend in 2017 and again last year.
A second entry in the series examines the adoption of pretrial risk assessment algorithms which can make up for some of the lost functions of cash bail, a county-by-county process still under way across the state [Angela Roberts and Nora Eckert] A third looks at the “trial penalty”: numbers show that “defendants who reject plea bargains and are convicted when they choose to go to trial for many types of crimes face longer sentences – sometimes substantially longer – than defendants who make a deal.” [Shruti Bhatt, Angela Roberts and Nora Eckert]
It’s worth remembering that state ventures in bail reform can lead to quite different outcomes depending on the strategy tried. New Jersey, which has won praise for its careful development of pretrial services, “is approaching two years operating a bail system where people don’t have to pay money to be free from jail. The crime wave some warned about hasn’t happened.” [Scott Shackford, Reason; Marc Levin, Real Clear Policy]
- Sorry, Denver cops, but you can’t keep a journalist from photographing an arrest on the street by telling her she’s violating the health-privacy law HIPAA [Alex Burness, Colorado Independent on handcuffing of editor Susan Greene]
- Conor Friedersdorf interviews Scott Greenfield, criminal defense blogger and longtime friend of this blog, at the Atlantic;
- Claim in new article: “extremely broad criminal statutes, no less than vague and ambiguous criminal statutes, are constitutionally problematic for depriving ordinary people of ‘fair notice’ about how the legal system actually works” [Kiel Brennan-Marquez guest series at Volokh Conspiracy: first, second, third]
- “We Cannot Avoid the Ugly Tradeoffs of Bail Reform” [Alex Tabarrok; Scott Greenfield] New York should learn from Maryland on risks of unintended consequences [New York Post, and thanks for mention] And a Cato Daily Podcast on bail reform with Daniel Dew of the Buckeye Institute and Caleb Brown;
- In Little Rock and elsewhere, police use of criminal informants creates disturbing incentives that can challenge both probity and accountability [Jonathan Blanks, Cato on Radley Balko account of Roderick Talley raid episode]
- Call to scrap juries in UK rape trials (because they acquit too often) is met with criticism [Matthew Scott, Spectator]
- “They Shared Drugs. Someone Died. Does That Make Them Killers?” [Rosa Goldensohn, New York Times in May, earlier on overdose prosecutions here, etc.]
- Also from May, missed this good Jill Lepore piece on rise of victims’ rights revolution, powered by both feminist and conservative impulses [The New Yorker; my comment on victim impact statements]
- UK: sexual assault cases collapse after prosecution shown to have held back material helpful to defense [Sky News]
- “The ongoing problem of conveniently malfunctioning police cameras” [Radley Balko]
- Bail reform activists shift focus toward problems with/tradeoffs of risk assessment algorithms, suggesting that previous “whole problem is private actors making a buck” theme might have been oversimplified [Scott Shackford, earlier here, here, here, etc.] Calif. Gov. Jerry Brown signs comprehensive bail reform bill [Jazmine Ulloa, L.A. Times]
- Second Circuit: New York’s gravity-knife law isn’t unconstitutionally vague [opinion courtesy Institute for Justice, earlier]
- “Expensive new licensing requirements and the bureaucratic headache of implementing” new regulations are expected to reduce further the number of agencies offering international adoption to U.S. families [Liz Wolfe, Reason] And don’t forget to mark your calendar and, if you can attend in person, register for next week’s July 19 Cato conference on adoption policy, at which international adoption will be one focus;
- Report confirms again what I wrote nearly a year ago: many persons are being held in jail longer under Maryland’s ill-thought-out venture in restricting cash bail [Lynh Bui, Washington Post, my WSJ piece last September, more]
- Online data protection episode is just latest instance of how California initiative process can put disturbing leverage in private hands [Cathy Gellis, TechDirt]
- “The cans now read ‘NON-TRADEMARK INFRINGEMENT ALMA MATER IPA’ with no other Pitt-related images.” [Grant Burgman, Pitt News on campus beer trademark controversy]
- “Pregnancy discrimination? Don’t rely on government for additional protection” [Vanessa Brown Calder, Cato]
- If you’re looking to dodge voir dire scrutiny: “How To Get On a Jury” [Mark Bennett, Reason]
When I wrote last month about Google’s and Facebook’s ill-advised decision to turn away ads for bail bond services, I hadn’t seen Alex Tabarrok’s insightful post on the same topic, calling the tech giants’ decision “deeply disturbing and wrongheaded.” Excerpt:
Bail bonds are a legal service. Indeed, they are a necessary service for the legal system to function. It’s not surprising that bail bonds are used in communities of color and low income neighborhoods because it is in those neighborhoods that people most need to raise bail. We need not debate whether that is due to greater rates of crime or greater discrimination or both. Whatever the cause, preventing advertising doesn’t reduce the need to pay bail it simply makes it harder to find a lender. Restrictions on advertising in the bail industry, as elsewhere, are also likely to reduce competition and raise prices. Both of these effects mean that more people will find themselves in jail for longer….
Ian Ayres and Joel Waldfogel also found that the bail bond system can (modestly) ameliorate judicial racial bias. Ayres and Waldfogel found that in New Haven in the 1990s black and Hispanic males were assigned bail amounts that were systematically higher than equally-risky whites. The bail bondpersons, however, offered lower prices to minorities–meaning equal net prices for people of equal risk–exactly what one would expect from a competitive industry.
My own research found that defendants released on commercial bail were much more likely to show up for trial than statistical doppelgangers released by other methods. Bounty hunters were also much more likely than the police to capture and bring to justice people who did jump bail. The bail bond system thus provides an important public service at no cost to the public.
In addition to being wrongheaded, Google’s decision is disturbing because it is so obviously a political decision….[Every] time Google acts as a lawgiver instead of an open platform it invites regulation and political control.
Meanwhile, reports from Maryland confirm that (as I’ve warned in the past) that state’s unplanned experiment with curtailing cash bail, without due attention to developing alternative institutions, has led to the retaining in jail of many defendants who otherwise would have rejoined their families [Jayne Miller/WBAL, Scott Shackford/Reason] More links on bail controversies: Scott Greenfield; Daniel Dew, Buckeye Institute last year (pro-reform in Ohio).