Pope at prison: justice system must focus on healing and 'new possibilities' | World news | The Guardian

See - Pope at prison: justice system must focus on healing and 'new possibilities' | World news | The Guardian

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Pope Francis has urged inmates at a Philadelphia jail to believe in the power of rehabilitation, condemning societies that normalize their suffering, on the last day of his trip to a nation that holds one-fifth of all the world’s prisoners.

Speaking at Curran-Fromhold correctional facility, the Argentinian pontiff told a group of 60 male and 11 female prisoners: “Any society, any family that cannot share or take seriously the pain of its children, and views that pain as something normal or expected, is a society condemned to remain hostage to itself, prey to the very things which cause that pain.”

He urged the inmates, their families and the correctional officers to believe in the possibility of rehabilitation, saying Christ “comes to save us from the lie that says no one can change”. They should regard their time in prison not as exclusion from society but as a period aimed at giving them “a hand in getting back on the right road”, he said. “All of us,” he added, “are part of that effort.”

Francis said: “It is painful when we see prison systems which are not concerned to care for wounds, to soothe pain, to offer new possibilities,” he said. “It is painful when we see people who think that only others need to be cleansed, purified, and do not recognize that their weariness, pain and wounds are also the weariness, pain and wounds of society.”

His words were welcomed by prison reform campaigners. “The pope is removing the stigma of these issues,” said Holly Harris, executive director of the Justice Action Network, a pro-reform group. “We’re no longer talking about an obscure minority of people – this is something that impacts everyone in America. When you’re sitting in church this morning and look to your left and your right, odds are one of those people has a criminal record.”

The pontiff spoke at length about washing the feet of prisoners, something he has done every year since his election in 2013. “Life means ‘getting our feet dirty’ from the dust-filled roads of life and history,” he said. Christ “washes our feet so 

we can come back to the table,” he added. 

He also expressed solidarity with the inmates, twirling a finger in a circle: “All of us have something we need to be cleansed of or purified from. All of us.”

The pope spent several minutes chatting and shaking hands with each inmate, and said a chair that a few of them had carved for him was “beautiful”.

Inmates were chosen to meet the pope from among those who identified as Catholic, and then through recommendations from administrators, chapel staffers and social services, prison spokesperson Shawn Hawes told the Guardian. Some of the prisoners came from the nearby Riverside Correctional Facility, the female counterpart to the all-male Curran-Fromhold.

Harris praised the pope in particular for addressing prisoners’ re-entry into society. “We’ve got to remember we’re trying to return better citizens, not people who can’t find work or housing and end up turning to crime again.”

Since becoming pope, Francis has washed the feet of inmates every spring, including, for the first time, women, in 2013. Earlier this summer he visited a Bolivian prison notorious for violence and corruption.

As at the five other jails in Philadelphia, inmates and advocates have accused Curran-Fromhold of overcrowding, unhealthy conditions, inadequate mental health services and repeatedinfractions by guards. A guard who beat an inmate – and was caught by a security camera – resigned on Thursday. The system currently imprisons about 1,700 more people than its jails were built to hold, a microcosm of the woes of mass incarceration. Pope Francis greets inmates during his visit to Curran-Fromhold correctional facility. Photograph: David Maialetti/AP

Nationally, the US prison population has swelled over several decades to a total of 2.2 million people, about 20% of all the world’s incarcerated people. One in three Americans have a criminal record, which can prevent them from keeping their family together and finding housing and work – the major themes of Pope Francis’s improvised and prepared addresseson Saturday night.

Curran-Fromhold also highlights a peculiarity of the US’s manifold and often punitive bail systems – an estimated 80% of its 2,800 inmates have not yet been convicted of the crimesfor which they’re imprisoned. Bail reform is a priority for several groups, including an initiative by the MacArthur Foundation that hopes to reduce prison populations in 20 jurisdictions, including Philadelphia.

Laurie Garduque, director of justice reform for the MacArthur Foundation, told the Guardian that she hoped the pope’s visit would highlight the “unusual moment” of bipartisan will to overhaul the justice system in the US.

“There are so many stakeholders at so many levels in this system: the police, the prosecutor, the defender, the courts, the mayor,” she said, “and they’re run different in each jurisdiction. But there are so many reasons to want to make change, too, and not just the billions of dollars. These are human lives and their families at stake.”

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In Florida, no more arrest warrants for indigent

See - In Florida, no more arrest warrants for indigent

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Some good news: A Florida judge has announced that he will invalidate 21,000 arrest orders for people whose crime was being in debt. The Orlando Sentinel reports:

"Orange-Osceola Chief Judge Frederick Lauten announced Wednesday that he will quash more than 21,000 arrest orders for people who failed to appear at collections court, ending the long-standing practice of jailing the defendants when they are located.

[…] he said judges would no longer issue what's known as a "writ of bodily attachment" for people who don't appear at the debt-collection hearings and have missed their monthly payments."

Modern day debtors' prisons have gotten a lot of attention lately. The fact that they are finally ending in some places is a relief for millions of poor Americans who were unable to pay debts, then levied with fines, and finally illegally threatened and punished with jail time.

"The net that was cast by the use of these writs was a wide one, and today the clerk and I have concluded that at times that net was too wide," said the judge. "It resulted at times in low-values arrests of indigent defendants who had no means to pay."

This collections court was the only one in Florida who still issued these writs, so this effectively ends the practice across the state.

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The Fight Against Mass Incarceration Goes Global | American Civil Liberties Union

See - The Fight Against Mass Incarceration Goes Global | American Civil Liberties Union

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Next week, the U.N. Human Rights Council will formally adopt the first-ever U.N. report on mass incarceration. In this groundbreaking report, the U.N. high commissioner for human rights brings global attention to the root causes of overincarceration and overcrowding in prisons. A draft resolution that is expected to be adopted by the council will express concern about the “negative impact of over-incarceration and over-crowding on the enjoyment of human rights.” 

The ACLU worked with other groups to bring this issue to the attention of the Human Rights Council. With considerable movement for criminal justice reform right now, it is the perfect time for the U.N. to issue recommendations on how to reduce the prison and jail population worldwide taking into account human rights obligations and commitments.

In the report, the high commissioner outlines a human rights-based approach for criminal justice reform that puts the human dignity of the person at the forefront. This approach emphasizes smart reforms like utilizing alternatives to detention, focusing on rehabilitation, and avoiding incarceration of children and other groups in vulnerable situations where possible. This report can and should serve as blueprint for reform in the United States, where the overuse of imprisonment is a problem of devastating proportions.

With an incarceration rate five to 10 times that of other Western democracies, the United States has less than five percent of the world’s population, but our country’s prisoners account for one fifth of the global prison population. The U.S. incarcerates more people — in absolute numbers and per capita — than any nation in the world, including the far more populous China, which rates second, and Russia, which rates third.

These numbers reflect misuse of incarceration to respond to social challenges and basic human needs. People struggling with addiction and mental illness are jailed rather than treated. People who need community-based supervision, education, and jobs to end the cycle of recidivism receive longer and longer sentences instead. Young people in neglected neighborhoods who are exposed to poverty, violence, and trauma are pushed out of schools and into prisons rather than embraced and healed. Moreover, the racially disparate patterns of policing and punishment reflect the United States’ ongoing struggle to come to terms with its history of slavery, marginalization, and oppression of people of color.

Unfortunately, the U.S. government missed an opportunity to contribute to the U.N. report, a report that it must champion given the current domestic movement for criminal justice reform and President Obama’s own stated commitment to reform, which he delivered at the NAACP Annual Convention in July.

Legislators across the United States are realizing that America’s addiction to incarceration is unsustainable, costing taxpayers billions of dollars while doing little to prevent crime. Important recent state criminal justice reforms have included allowing parole for elderly prisoners, reducing criminal penalties for drug crimes, decriminalizing or legalizing marijuana, raising the threshold of misconduct for what constitutes a felony, using non-prison sanctions for technical violations of probation and parole, and eliminating mandatory minimum sentencing. As a result, numerous states — including New York, New Jersey, Michigan, California, and Texas — have significantly reduced their prison populations in the last several years. 

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Legal Education Central by Scott Fruehwald

See - Legal Education Central by Scott Fruehwald

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Based on the above, one should be able to see the problem in legal education. Legal education mainly teaches students to be appellate lawyers and legal philosophers. The typical lawyer is not an appellate lawyer or a philosopher. Thus, law schools do not teach their students in a way that is best for the knowledge retrieval they will need as practicing attorneys. For example, students learn contract principles in law school, but the typical first-year contracts class does not teach students how to use this knowledge to draft a contract. When a lawyer starts to draft contracts in practice, she will be lost because of the way she has contract law stored in her long-term memory. In other words, the way that contract law is stored in a law student’s long-term memory does not transfer well to drafting contracts. Similarly, Torts may help a student write an appellate brief on a torts question, but the typical Torts class does not provide the knowledge organization to make it easy to draft interrogatories in a torts case. The torts doctrine is not organized in a manner in long-term memory that will transfer easily to drafting interrogatories.

In conclusion, a major problem with legal education is that it is not taught in a manner that allows lawyers to easily retrieve needed knowledge from long-term memory. In other words, law schools generally do not teach their students to be fluent in contact drafting, drafting interrogatories, or many of the other essential skills of lawyers. This must change if legal educators want to produce practice-ready attorneys.

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Our justice system is tilted against defendants - San Antonio Express-News

See - Our justice system is tilted against defendants - San Antonio Express-News

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America’s criminal justice system operates on myths. Ninth U.S. Court of AppealsJudge Alex Kozinski doesn’t use that word in his recently published critique in the Georgetown Law Journal of our criminal process, but he clearly views commonly held but highly questionable beliefs as dangerous.

Indeed, they are.

We often have skewed views of the weight that evidence should be given in a criminal trial. We overvalue some indications of possible guilt while simultaneously assuming, often erroneously, that defendants’ legal rights give them the upper hand. We comfort ourselves by thinking that our justice system is the best in the world, but we never question that assumption.

When we hear of someone who was wrongfully convicted being released from prison, perhaps even from death row, after decades of confinement, we wonder, “How did that happen? We have such a fair system.” Rarely do we receive an answer to that question, and when we do, the explanation is often dismissed as an aberration, or the result of some legal trick or technicality that sets a guilty person free.

As is true when a doctor misses a diagnosis or an auto mechanic fails to fix a rattle, the reasons for erroneous conviction may be numerous and complex. Confronted with complicated and legalistic explanations, we tend to resort to a more “common sense” approach: “He was probably guilty of something.” “We give ‘criminals’ too many rights.” “The police wouldn’t have charged him if he hadn’t done something.” “I’ll bet his lawyer is in good with the judge.”

What we should realize, says Kozinski, is that the American criminal justice system is tilted, but not in favor of the defendant. First, consider some of the ways in which juries, and even prosecutors and judges, place far too much confidence in certain kinds of evidence.

We believe eyewitness testimony. If someone swears the defendant did it, what could be better proof? Actually, we’ve known for decades that eyewitnesses very often make mistakes and misidentify suspects even when they’ve had close contact, as in a robbery or rape. Some of these mistakes are due to the suggestive ways in which identifications are conducted, while others are the result of tricks our minds and memories play.

When a witness says, “He’s the one,” the witness may believe he or she is telling the truth. They’re wrong, but they’re convinced they’re right. And that conviction persuades the jury. Why believe the accused person who swears he didn’t do it? Isn’t that what they all say? Maybe, but eyewitness misidentification is probably the leading cause of wrongful convictions, so sometimes they’re telling the truth.

There are more objective forms of evidence, of course. We all know about forensic evidence from popular television shows. Fingerprints and DNA evidence never lie, right?

Actually, even these very reliable kinds of evidence can be wrong. A skilled fingerprint examiner will usually be able to match a good set of complete prints with another set. But there are two problems: (1) Fingerprint analysis is only as good as the skill and care taken by a trained analyst; and (2) comparisons aren’t made against complete sets of prints, but instead against partial, often smudged, latent prints of perhaps only a single finger.

An Oregon attorney was accused by the FBI of being involved in the 2004 Madrid terrorist train bombings on the basis of a latent print match. Further investigation linked that print to someone else, and the FBI admitted it had been mistaken, but only after the innocent attorney had been arrested and the FBI claimed the fingerprint match was “100 percent verified.” The bureau blamed the error on its analyst and not the methodology.

DNA evidence is more reliable, but even that form of proof should be viewed with healthy skepticism. Errors can result from the way samples are collected, contamination in the lab, sloppy work by analysts and even perjury by examiners.

Sadly, cases of DNA lab workers and analysts fabricating results have come to light with alarming frequency.

Good forensic work is based on sound scientific principles, but a lot of the evidence that has been used to convict is the product of “junk science.” In one example of how dangerous it can be to rely on “science” to prove guilt, Texas executed Cameron Todd Willingham for the murder of his children by arson. Despite sketchy evidence and Willingham’s insistence that he did not set the fire, “scientific” theories of fire investigation and burn patterns, since discredited, were used by a fire marshal to convince a jury Willingham committed the crime.

So powerful is the impact of forensic evidence on juries that prosecutors now complain television has created an expectation that DNA or other forensic proof will be introduced in every trial. The fact is that in many cases, perhaps most, there is no particularly helpful forensic evidence. Even if there is, counties cannot afford to have it all examined, and the backlogs at many forensic labs mean the evidence, even if it exists, will not be available for trial.

Science is not always the answer, but surely we can rely on confessions and the overwhelming numbers of guilty pleas to resolve all doubt in those cases. It turns out that false confessions rival misidentification as a leading cause of wrongful conviction.

Interrogators have all the advantages; suspects have almost none. Virtually every police interrogation I see portrayed on a television show includes violations of the rights of the suspect. It isn’t that we’re beating suspects until they confess. Rather, it is the psychological pressures brought on by implied (and sometimes express) threats and promises, sleep deprivation, incommunicado questioning, and preying on the fears and inexperience of the suspect that result in a false admission.

Police investigators receive training in the use of psychological tools to pry confessions from reticent suspects. No suspect has been trained in how to resist these pressures.

Even a guilty plea may not be indicative of guilt. Why would anyone plead guilty to a crime he didn’t commit? There are many reasons. Some plead guilty to avoid being charged with a more serious crime they also didn’t commit. Others do so to keep from sitting in jail for months, waiting to go to trial, because they can’t make bail.

Many people pleading guilty are not guilty of the crime with which they are charged. They may be innocent, or they may be not guilty, or both. In any case, they should not suffer the consequences of a conviction that is unsupported by law and fact.

It is naïve to believe the state is disadvantaged by its burden of proving a case beyond a reasonable doubt or to think that the guilty are going free at an alarming rate. As Kozinski argues, there is good evidence that we are over-criminalizing and over-punishing.

Kidding ourselves about the presumption of innocence only prevents us from finding better ways to investigate and prosecute crime more fairly. It may be impossible to perfect the criminal justice system, but thoughtful reforms must be undertaken to make it better than it is.

Author: 

Gerald S. Reamey is a professor at the St. Mary’s University School of Law and an expert in criminal law and procedure.

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Jail time is not the sole answer to petty crime | The National

See - Jail time is not the sole answer to petty crime | The National

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A UAE court sentenced a Filipino cook to three months in prison for attempted theft after he took a meal pack worth Dh10 from the cafeteria where he worked, wrote Sami al Reyami, a columnist with the Dubai-based Al Emarat al Youm newspaper.

The court's ruling was sound; there was theft, a stolen item, a thief and an admission of guilt - all elements of the crime are there.

"We're not challenging the verdict here, but there is a question to be asked. Given that one prisoner costs the state between Dh100 and Dh120 a day, in addition to unquantifiable costs, aren't all these state-borne costs disproportionate to the act of stealing committed by the accused? Is there any way to correlate the Dh10 stolen meal with the Dh10,800 it would cost to keep the prisoner in jail for three months?"

This is not to condone petty theft; it is definitely a punishable crime. "But there are other ways to punish petty thieves without hurting the state, for wouldn't you agree that by making the state pay tenfold the value of what is stolen, it is the state that is being punished more than the thief?

"Prison is not the only answer to petty theft. A salary deduction, a fine, suspension or dismissal from work and deportation would all be effective punishments."

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Disputes involving thefts of small-value items shouldn’t end up in court

See - Resources in the justice system | The National

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Ezzat Abdullah, a judge at the Dubai Criminal Court, told The National recently that disputes involving thefts of small-value items shouldn’t end up in court. Judge Abdullah, frustrated after a spate of minor offences – including the theft of four Kit Kats from an airport bag – made their way into the courts, said that employers and prosecutors should resolve disputes informally, instead of requiring the state’s legal apparatus to step in.

It is surely a waste of the court’s time to settle disputes where a few dirhams are at stake. The cost to the state of prosecuting individuals for minor acts of theft frequently exceeds the harm caused to the aggrieved party.

The financial and occupational impact of deportation, imprisonment, or even of a suspended sentence, on the livelihood on the person found guilty of petty theft is likely to be disproportionate to the crime committed.

Still, employers need to deal with petty theft in the workplace. They must think intelligently about the easiest and fairest way to deal with low-level workplace conflict. They must use their common sense before declaring themselves unable to resolve minor disputes over everyday items. Individuals, too, need to think twice about the real harm caused to them. Is it really worth mobilising the state’s machinery to punish someone guilty of, at worst, the theft of a fistful of low-denomination notes?

We must make sure not to send the message that crime is tolerated. At the same time, we must ensure that punishments remain proportional and prudently enforceable.

Some people think that small crimes are the gateways to larger acts; others favour zero-tolerance policing, on the theory that punishment is the best form of deterrence. And part of the attractiveness of the UAE is that it is a safe and secure place to live, where the crime rate is low and your home is not at risk of being robbed. But surely court resources should be reserved for bigger crimes? Common sense must prevail.

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Reform asset forfeiture in criminal justice system - Opinion - Citizens' Voice

See - Reform asset forfeiture in criminal justice system - Opinion - Citizens' Voice

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Under the umbrella of fighting drug crimes, state governments have created a profitable if nefarious business from seizing the assets of people who are not responsible for the crimes.

Pennsylvania’s law is among the most draconian. If the government can show that property is even tangentially connected to a crime, it can seize the material. And the law imposes only a civil standard based on a preponderance of the evidence, rather than the criminal standard of evidence beyond a reasonable doubt, to seize cash, cars, houses and anything else. The burden of proof is on the property owner, rather than on the government seizing the property.

Pennsylvania averages about $14 million a year in such civil asset forfeitures.

Nationwide, the power is widely abused by state and federal police agencies. The laws provide an incentive for that abuse, in that money derived from the asset forfeitures go directly to those police agencies for whatever purposes they choose.

Some local courts have been cautious about allowing such seizures. But in those cases local police agencies often have skirted that obstacle by inviting federal law enforcement agencies into the investigation, which then enables the government to shop for the least restrictive venue in which to bring the forfeiture case. The feds and local police then split the proceeds.

New Mexico, where the practice had become egregious, is the first state to establish sweeping reforms based on due process and actual proven criminality of the property owner.

Reform bills based on New Mexico’s new law were introduced this year in both houses of the state Legislature, with bipartisan support from libertarian property-rights advocates and progressive advocates of criminal justice reform. They have not moved from committees.

The bills would require the criminal conviction of the property owner to trigger asset forfeiture and close the “equitable sharing” loophole by which local agencies hand off cases to the feds.

Also, to end the incentive, the bills require proceeds from forfeitures to be deposited in the general fund of the government where the action takes place, rather than directly into the police agency’s account.

The Legislature should restore fairness and accountability to the system by adopting these badly needed reforms.

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BusinessWorld | Palace takes 2nd look at income tax cut

See - BusinessWorld | Palace takes 2nd look at income tax cut

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The draft law prepared by Mr. Quimbo’s committee seeks to trim personal and corporate income taxes in two steps.

It will first adjust the income tax rates to inflation upon signing into law.

A second adjustment will follow after about three years, Mr. Quimbo earlier said, collapsing the current seven-tier bracket into four:

• tax exemption for workers earning less than P180,000 yearly;

• 9% for those earning P180,000 to P500,000;

• 17% for those earning between P500,001 and P10 million;

• and 30% for those earning above P10 million.

This is a leap from Republic Act No. 8424, or the Tax Reform Act of 1997 that slaps a 5% tax on workers earning below P10,000 annually.

Corporate income tax rate, meanwhile, is proposed to be cut to 25% from the current 30%, which is deemed the highest in Southeast Asia.

As a rule, tax measures should come from the House, but counterpart measures are also being tackled by the Senate committee.

Mr. Angara said that he and Mr. Quimbo presented to the President arguments in favor of income tax reform, citing benefits to individual households and to the national economy.

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Obama, in prison documentary: U.S. legal system has been 'unjust' | Reuters

See - Obama, in prison documentary: U.S. legal system has been 'unjust' | Reuters

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President Obama speaks to reporters during his visit to the El Reno Federal Correctional Institution in El Reno, Oklahoma July 16, 2015.

REUTERS/KEVIN LAMARQUE

The United States has too long ignored the effect of high incarceration rates on minority and poor communities, U.S. President Barack Obama said in a TV documentary featuring an unprecedented presidential visit to a prison.

"As a society we seem to be OK with certain communities being locked in this cycle where kids are being raised around drug crime. They naturally gravitate toward drug crime," Obama told six inmates in July at the prison in the documentary, which is scheduled to air on Sunday.

"They then get involved in the criminal justice system, and it just churns, and everybody thinks that's normal," the president told the nonviolent drug offenders at the medium-security El Reno federal prison in Oklahoma. His visit is part of HBO's "Vice" documentary program.

Obama has made criminal justice reform a top priority of his final years in office and beyond.

More than 1.5 million Americans were in state or federal prisons at the end of 2013, according to the Bureau of Justice Statistics. African-Americans comprised about a third of the prisoners at the time despite being 15 percent of the U.S. population.

During an interview for the Vice documentary, Obama said the U.S. justice system "tilts in a direction that is unjust," especially for nonviolent drug offenses.

"This is an area where the statistics are so skewed, you have to question whether we have become numb to the cost that it has on these communities," he said.

At the start of his discussion with the inmates, Obama shook hands with each of the prisoners, who were dressed in tan button-up shirts and tan pants.

Noting the unusualness of the situation - no sitting U.S. president had ever visited a federal prison - Obama told the inmates to relax and "just pretend the cameras aren't here."

In a wide-ranging discussion, Obama listened as the inmates talked about how they ended up in prison, the impact of incarceration on their families and their hopes for life after their sentences were completed.

One prisoner said he was taking advantage of his time behind bars by taking college courses. He said he hoped to come out as a better role model for his children.

Criminal justice reform has attracted some bipartisan support in the usually divided Congress. Republican Senator Mike Lee of Utah and Democratic Senator Cory Booker of New Jersey both spoke to Vice in support of reforming sentencing laws.

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Fight for a Responsive Judicial System: Prashant Bhushan - The New Indian Express

See - Fight for a Responsive Judicial System: Prashant Bhushan - The New Indian Express

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HYDERABAD:Senior advocate and noted social activist Prashant Bhushan has called upon the advocate community to fight for a legal system that is competent, responsive and free from corruption here Saturday.

Only a massive people’s movement can bring in major changes in the judicial system, he said addressing the legal fraternity at a seminar on judicial reforms in Hyderabad.

“The only way left before the society to make judiciary relevant and accessible to all is to take it to the their door steps. By doing that we will be able to avoid the huge backlogs and bring faith into the minds of common people who are ultimate consumers of justice and this will help the whole legal fraternity and the cause of justice,” he observed.

“If we do not do that now then soon there will be chaos and everyone including lawyers would suffer,” Prashant Bhushan opined.

He observed that only a mass movement can bring in major changes in the judicial system, and urged the legal fraternity to start working with people to ignite passion in them for a cleaner and responsive judiciary.

Stating that Gram Nyayalayas Act was brought in with this purpose, Bhushan said this will help to dispose of cases quickly.

“A competent judge can interact with litigants and settle disputes in a quick way. Persons with reasonable intelligence, sound commonsense and honesty can be straight away appointed judges and they can be imparted one year training through judicial academies. Knowledge of law is a continuous learning process. Laying more stress on a person’s understanding of law before taking them as judges is of no use.”

Stressing the need for a credible national judicial appointments commission, Prasanth Bhushan said that this will help to select good persons as judges.

A national judicial service to select competent judges for the subordinate judiciary and a judicial complaints commission to deal with corruption in judiciary is the need of the hour, the senior advocate asserted.

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A Legal System That Works for Wall Street - Bloomberg View

See - A Legal System That Works for Wall Street - Bloomberg View

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The problem is that it creates a home-field advantage for prosecutors. It isn't so much the penalties but the proceedings themselves that are at issue. Defendants claim they have more extensive rights to take witness testimony and collect evidence in federal trials than an administrative proceeding. Last year, Jordan Peixoto, accused of insider trading, appealed his administrative trial, claiming an abridgment of his “constitutional rights to due process and equal protection under the law.” The case was dropped, though for different reasons. 

American jurisprudence is replete with structural devices to avoid litigation. The reality is the vast majority of disputes are resolved without going to trial. Typically, there is a party claiming some kind of damage, and the threat of litigation and its potential costs forces some manner of rational calculus on all of the parties.

A small number of claims don't lend themselves to easily resolution. Sometimes facts are in dispute, the law is unsettled or there are advantages to delay. Occasionally, one of the parties isn't rational. The result is that some cases do go to trial.

I have personal experience with this. Decades ago in my earlier career as a lawyer, I ran mediation and arbitration cases. I worked with retired federal and state judges, who were used by litigants to hash out faster, cheaper and arguably fairer settlements than might otherwise have been reached through the courts.

The key however was that “alternative dispute resolution,” as the process was known, was strictly voluntary. When both sides realized they were at an impasse, and the costs of delay were high, all parties came to the table to find a palatable solution. No one gave up the right to go to court.

This isn't the case, though, in Finra arbitrations. Anyone who works on Wall Street or invests through a brokerage firm has signed an agreement to settle any dispute through mandatory arbitration. There is no alternative. If you want a job at a brokerage firm, or if you want a brokerage account, you are placed in an arbitration straitjacket. Unfortunately, our business-friendly Supreme Court has upheld the use of mandatory-arbitration agreements. 

Forget for a moment that these agreements require you to sign away your right to go to court to resolve a dispute. What's more troubling is the how the process is slanted in favor of those who work for the financial industry, which in turn runs Finra. This conflict of interest tells you almost all you need to know about Finra-sponsored arbitration. Some of the abuses that have been documented over the years are mind-boggling. 

To its credit, the SEC has responded to complaints from the defendant’s bar, and is overhauling its in-house tribunal process. This is a small but positive step. Whether it goes far enough has yet to be determined. One thing you probably can count on: No similar change at Finra.

Americans have a fundamental right to a trial for both criminal and civil offenses, and no one should be required to surrender it to get a job or conduct business. We should be very skeptical of methods that limit or deny people the right to defend themselves or seek redress. 

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BusinessWorld | Coherence and punishment

See - BusinessWorld | Coherence and punishment

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...By contrast, the Ninoy Aquino International Airport Terminal 3 delivered in 2002 but idled for more than a dozen years by unresolved litigation exemplifies the massive waste from collective failures in the Philippines. The Supreme Court has just (September 2015) decided that the Philippine government should now pay the Piatco group $521 million. Somebody‘s head should roll since the Canlas Committee formed to advise on the issue recommended to President Arroyo a course of action that could have made the facility pay for itself. But that head won’t roll.

Because Philippine society suffers a serious pathology: it is unable to punish even heinous injuries to our society. That means repeated slaps on the face of law abiders. Still it hit me like a punch in the gut when the Supreme Court decided that Juan Ponce Enrile can walk free on bail even when the charge is non-bailable by law and by the Constitution. The Supreme Court, the presumptive ultimate protector of the rule of law, contravened both law and Constitution by enacting a new doctrine of jurisprudence -- “humanitarian grounds”. A friend and fellow age-grouper in a flight of mischief and irony quipped: “Every senior citizen has now been granted a free pass to rape.” Don’t count on it! The nagging suspicion is that the new doctrine derives not from humanity but rather from the power and stature of the accused. We still have to see the perpetrators of the Ampatuan massacre get their just dessert. The Priority Development Assistance Fund case threatens to drag on until all the perpetrators shall have attained the right to invoke clemency on “humanitarian grounds”. Meanwhile the Supreme Court allows itself to be dragged into the thoroughly useless “Torre de Manila” controversy. Inability to punish gnaws at our sense of selves and our allegiance to the law.

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Wheels of justice slow at overloaded federal courts - US News

See - Wheels of justice slow at overloaded federal courts - US News

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Across the country, federal district courts have seen a rise in recent years in the time it takes to get civil cases to trial and resolve felony criminal cases as judges' workloads have increased, according to statistics from the Administrative Office of the U.S. Courts.

The problem is particularly acute in some federal courts such as California's and Texas's Eastern Districts. Judges there have workloads about twice the national average and say they are struggling to keep up.

The result, the judges and attorneys say, is longer wait times in prison for defendants awaiting trial, higher costs for civil lawsuits and delays that can render those suits moot.

"I think it's fair to say that things are quite bad," said Matt Menendez, a lawyer with the Brennan Center for Justice at New York University School of Law who has studied judicial caseloads.

Legal scholars say Congress needs to fill judicial vacancies more quickly but also increase the number of judges in some districts — both issues that get bogged down in partisan political fights over judicial nominees.

California's Eastern District, which covers a large swath of the state that includes Sacramento and Fresno, has had an unfilled judicial vacancy for nearly three years, and it has the same number of judicial positions — six — it had in 1978, according to the Administrative Office of the U.S. Courts.

The Judicial Conference of the United States, the national policy-making body for the federal courts, has recommended Congress double the number of judicial positions in the district.

In the late 1990s, the median time for civil cases to go to trial in the district averaged 2 years and four months. From 2009 to 2014, that number jumped by more than a year. The median time to resolve criminal cases nearly doubled to an average of 13 months.

"You're never out from under it," said Morrison England, the court's chief judge. "You're constantly trying to do what you can to get these cases resolved, and we just can't do it."

The weighted caseload per judge has climbed from an average of nearly 600 in the late 1990s to over a 1,000.

The Eastern District of Texas has seen similar increases.

"The way one older judge put it to me: 'If you have too many cases, you start to lose the time to think about them,'" said Ron Clark, the court's chief judge.

The vacancy in California's Eastern District is in Fresno, which is down to just one full-time district court judge.

Attorneys say they are reluctant to file cases in the Fresno court because of delays and have faced additional expenses from having to drive to Sacramento when their case gets assigned to a judge there who has been called in to help.

x x x."

The Supreme Court Of Mauritius Re-Affirms The Criteria For Enforcing Foreign Judgments - Litigation, Mediation & Arbitration - Mauritius

See - The Supreme Court Of Mauritius Re-Affirms The Criteria For Enforcing Foreign Judgments - Litigation, Mediation & Arbitration - Mauritius

"x x x.

The Supreme Court of Mauritius re-affirmed the criteria that need to be satisfied for an application to recognise and enforce a foreign judgment based on Article 546 of the Mauritian Code of Civil Procedure in La Banque Française Commerciale Ocean Indien v Lauret P 2015 SCJ 284 to be successful. These are the applications that are better known as 'exequatur'.

Background

The exequatur application before the Supreme Court related to two guarantee agreements that the Banque Française entered into with Lauret on 10 August 2001 and 17 November 2005. In its judgment dated 27 October 2010, the Tribunal de Grande Instance de St Denis (Réunion Island) found that Lauret was indebted to the Banque Française in the amount of (a) €420,090.96 plus interest on the first guarantee agreement and (b) €132,495.26 with contractual interest of 4.15% on the second guarantee agreement.

In granting exequatur, the Supreme Court re-affirmed as correct the conditions that it laid down in D'Arifat v Lesueur 1949 MR 191 for a successful exequatur application, these are:

(a) the judgment must still be valid and capable of execution in the country where it was delivered;

(b) it must not be contrary to any principle affecting public order;

(c) the defendant must have been regularly summoned to attend the proceedings; and

(d) the court which delivered the judgment must have had jurisdiction to deal with the matter submitted to it.

Key Point for Exequatur Applications

The Respondent (i.e. Lauret) argued before the Supreme Court that there was a technical defect in the exequatur application. Lauret stated that the certificate issued by the registrar of the Court of Appeal of St Denis did not bear the apostille of the Hague Convention. Accordingly, condition (a) set out in D'Arifat v Lesueur was not fulfilled.

The Supreme Court held that it was not fatal to the exequatur application that the certificate issued by the registrar of the Court of Appeal of St Denis did not bear the apostille of the Hague Convention. This was because the Respondent had himself admitted before the Supreme Court that he did not appeal against the judgment delivered by the Tribunal de Grande Instance de St Denis. Based on this admission by Lauret and the fact that the judgment of the Tribunal de Grande Instance de St. Denis had been apostilled under the Hague Convention, the Supreme Court was satisfied that Condition (a) in D'Afrifat had been met. As a result the Supreme Court ruled that the judgment of the Tribunal de Grande Instance de St. Denis was valid and capable of being executed in Réunion Island.

Commercial Impact of the Supreme Court Decision

The decision of the Supreme Court in La Banque Française Commerciale Ocean Indien v Lauret P is an important decision in two respects. First, it highlights the readiness of the Mauritian judiciary to look beyond what could be perceived as technical defects and focus on substantive issues, following the recommendations of the Judicial Committee of the Privy Council when hearing appeals from Mauritius. Secondly, it demonstrates the Mauritian judiciary's understanding of the environment in which international commerce operates and its willingness to give effect to it in a manner that is consonant with international trends and does not breach Mauritius law.

x x x."

Power of judicial review; supremacy of the Supreme Court. - Marbury v. Madison | US Law | LII / Legal Information Institute

See - Marbury v. Madison | US Law | LII / Legal Information Institute

"x x x.

The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution.

It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each.

If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.

x x x."

Marbury v. Madison

---

5 U.S. 137

Marbury v. Madison ()

Argued:

Decided:

___

• Syllabus
• Opinion, Marshall

Children of illegal immigrants in USA - Plyler v. Doe | US Law | LII / Legal Information Institute

See - Plyler v. Doe | US Law | LII / Legal Information Institute

"x x x.

Plyler v. Doe

457 U.S. 202

Plyler v. Doe (No. 80-1538)

Argued: December 1, 1981

Decided: June 15, 1982 [*]

___

Syllabus

Opinion, Brennan

Concurrence, Marshall

Concurrence, Blackmun

Concurrence, Powell

Dissent, Burger

Syllabus

Held: A Texas statute which withholds from local school districts any state funds for the education of children who were not "legally admitted" into the United States, and which authorizes local school districts to deny enrollment to such children, violates the Equal Protection Clause of the Fourteenth Amendment.

Pp. 210-230.

(a) The illegal aliens who are plaintiffs in these cases challenging the statute may claim the benefit of the Equal Protection Clause, which provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." Whatever his status under the immigration laws, an alien is a "person" in any ordinary sense of that term. This Court's prior cases recognizing that illegal aliens are "persons" protected by the Due Process Clauses of the Fifth and Fourteenth Amendments, which Clauses do not include the phrase "within its jurisdiction," cannot be distinguished on the asserted ground that persons who have entered the country illegally are not "within the jurisdiction" of a State even if they are present within its boundaries and subject to its laws. Nor do the logic and history of the Fourteenth Amendment support such a construction. Instead, use of the phrase "within its jurisdiction" confirms the understanding that the Fourteenth Amendment's protection extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. Pp. 210-216.

(b) The discrimination contained in the Texas statute cannot be considered rational unless it furthers some substantial goal of the State. Although undocumented resident aliens cannot be treated as a "suspect class," and although education is not a "fundamental right," so as to require the State to justify the statutory classification by showing that it serves a compelling governmental interest, nevertheless the Texas statute imposes a lifetime hardship on a discrete class of children not accountable for their disabling status. These children can neither affect their parents' conduct nor their own undocumented status. The deprivation [p203] of public education is not like the deprivation of some other governmental benefit. Public education has a pivotal role in maintaining the fabric of our society and in sustaining our political and cultural heritage; the deprivation of education takes an inestimable toll on the social, economic, intellectual, and psychological wellbeing of the individual, and poses an obstacle to individual achievement. In determining the rationality of the Texas statute, its costs to the Nation and to the innocent children may properly be considered. Pp. 216-224.

(c) The undocumented status of these children vel non does not establish a sufficient rational basis for denying them benefits that the State affords other residents. It is true that, when faced with an equal protection challenge respecting a State's differential treatment of aliens, the courts must be attentive to congressional policy concerning aliens. But in the area of special constitutional sensitivity presented by these cases, and in the absence of any contrary indication fairly discernible in the legislative record, no national policy is perceived that might justify the State in denying these children an elementary education. Pp. 224-226.

(d) Texas' statutory classification cannot be sustained as furthering its interest in the "preservation of the state's limited resources for the education of its lawful residents." While the State might have an interest in mitigating potentially harsh economic effects from an influx of illegal immigrants, the Texas statute does not offer an effective method of dealing with the problem. Even assuming that the net impact of illegal aliens on the economy is negative, charging tuition to undocumented children constitutes an ineffectual attempt to stem the tide of illegal immigration, at least when compared with the alternative of prohibiting employment of illegal aliens. Nor is there any merit to the suggestion that undocumented children are appropriately singled out for exclusion because of the special burdens they impose on the State's ability to provide high-quality public education. The record does not show that exclusion of undocumented children is likely to improve the overall quality of education in the State. Neither is there any merit to the claim that undocumented children are appropriately singled out because their unlawful presence within the United States renders them less likely than other children to remain within the State's boundaries and to put their education to productive social or political use within the State. Pp. 227-230.

No. 80-1638, 628 F.2d 448, and No. 80-1934, affirmed.

BRENNAN, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, POWELL, and STEVENS, JJ., joined. MARSHALL, J.,post, p. 230, BLACKMUN, J., post, p. 231, and POWELL, J., post, p. 236, filed concurring opinions. BURGER, C.J., filed a dissenting opinion, in which WHITE, REHNQUIST, and O'CONNOR, JJ., joined,post, p. 242. [p205]

x x x."

Death penalty; status report worldwide, 2013.

See - www.icomdp.org/cms/wp-content/uploads/2014/06/ICDP_Review_2013_report.pdf





"When the Universal Declaration of Human Rights was adopted in 1948 only eight States had abolished the death penalty. In recent years the situation has changed dramatically: according to the United Nations (UN) some 150 countries have either abolished the death penalty or no longer execute. This move towards abolition of the death penalty is witnessed in all regions in the world regardless of political system, religion, culture or tradition."  



- International Commission Against Death Penalty.





Download the 2013 report.



See - http://www.icomdp.org/cms/wp-content/uploads/2014/06/ICDP_Review_2013_report.pdf 

Death penalty showdown: The Pope vs. the Supreme Court - CNN.com

See - Death penalty showdown: The Pope vs. the Supreme Court - CNN.com

"x x x.

It would have been interesting to see the reaction of the court's most outspoken "originalist" and death penalty supporter, Scalia, as the Pope highlighted his opposition to the death penalty with a reference to the golden rule, stating:

"... This conviction has led me, from the beginning of my ministry, to advocate at different levels for the global abolition of the death penalty. I am convinced that this way is the best, since every life is sacred, every human person is endowed with an inalienable dignity, and society can only benefit from the rehabilitation of those convicted of crimes. Recently my brother bishops here in the United States renewed their call for the abolition of the death penalty. Not only do I support them, but I also offer encouragement to all those who are convinced that a just and necessary punishment must never exclude the dimension of hope and the goal of rehabilitation."

Undoubtedly the court's Catholic justices anticipated the Pope's anti-death penalty references, given the letter he sent to the International Commission Against the Death Penalty in March in which he noted: "It is an offense to the inviolability of life and to the dignity of the human person which contradicts God's plan for man and for society and his merciful justice, and it fails to conform to any just purpose of punishment. ... It does not render justice to the victims, but rather foments revenge."

x x x."

Need for reform of criminal justice system: Malimath - The Hindu

See - Need for reform of criminal justice system: Malimath - The Hindu

"x x x.

The former Chief Justice of the High Courts of Karnataka and Kerala V.S. Malimath appealed for urgent reforms and review of the provisions in the archaic Criminal Justice System to instil confidence in the judiciary among the people and provide justice to the victims of the crime and increasing the conviction rates.

Mr. Malimath, who headed the Committee on Criminal Justice System and made series of recommendations on the need for reforming the system, said he had submitted his report back in 2003 to the Union government, headed by Atal Bihari Vajpayee, and none of the recommendations have been implemented.

Mr. Malimath was delivering the keynote address after inaugurating the UGC-sponsored two-day national seminar on “Victim Justice—not only a legal problem but it is an extension of sociological and ethical implication” hosted by SSL Law College here on Friday.

“More than 80 per cent of reported crimes went unpunished due to several reasons and the loopholes in the present criminal justice system and there was urgent need to review the system and take corrective measures to improve the conviction rates,” he said.

He added that it was time to examine how far the State had discharged its duties of protecting the life and liberty of the common people. Mr. Malimath said in the present criminal justice system, victims of the crime have no place and their time only comes at the time of evidence.

“It is only the accused who gets all the attention and nobody bothers about the victims and their problems. Everything is accused-centric in the present system,” he said.

Mr. Malimath said that apart from agony of physical violation at the hands of the accused, victims of rape are made to undergo the ordeal of cross examination at the hands of the rapist inside the court.

However, the present criminal justice system does not allow the victim of rape to question the accused.

“This is the paradox of the situation,” Mr. Malimath said and added that courts do not pay adequate attention to the loss suffered by the victim.

Mr. Malimath said that there was also a need for the investigating agencies to equip themselves with the latest investigating tools to match the intelligence of the criminals and help the prosecution to get more number of convictions.

Long delays in conviction of watertight cases like the assassination of Mahatma Gandhi, Indira Gandhi and Rajiv Gandhi cases spoke volumes about the present criminal justice system and its drawbacks.

Vice-Chancellor of the National Law School of India University R. Venkat Rao spoke on the occasion and president of the HKE society Basavaraj Bhimalli presided over the function. Principal of the host college Lingaraj M. Konin welcomed.

x x x."

More girls than boys are in the juvenile justice system, research shows | Daily Mail Online

See - More girls than boys are in the juvenile justice system, research shows | Daily Mail Online

"x x x.

A report has revealed that girls now outnumber boys in the juvenile justice system and the amount of girls who have been arrested has increased over the past 20 years.

The report, 'Gender Injustice: System-Level Juvenile Justice Reforms for Girls' was carried out by the National Crittenton Foundation and the National Women's Law Center.

It found that the number of girls who had been arrested had risen by 45 percent over the past two decades. And suggests that girls are now getting caught up in all sections of the justice system.

The report found that the number of arrests of girls being had risen by 45 percent over the past two decades. And girls were getting caught up in all sections of the justice system

According to the report, many of the girls who ended up behind bars had previously experienced trauma.

Some had been the victims of violence and sexual abuse either at home or in society.

Figures showed that the detentions of girls had also increased by 40 percent.

The report author said: 'The traumatic and unhealthy social environments in which many girls live result in behaviors that are criminalized or are mishandled by other systems, resulting in girls' entry into the juvenile justice system.' 

An examination of the types of crimes that girls carried out found that 37 percent were there for technical violations and fighting at home and 21 percent were for simple assaults. 

And many of the young women had already been in contact with public bodies like child welfare, mental health and education but their offenses often pose little or no threat to public safety.

Often girls who ended up in the juvenile system did so because other services had been unable to help them. 

Their offenses often posed little or no threat to public safety, The Hill reports. 

Francine Sherman, lead author of the report said: 'Every day in the U.S., abused and traumatized girls enter and are pushed through the justice system.'

Sherman, a clinical law professor at Boston College Law School, told The Hill that there should be reform and police should offer alternatives to arrest for minor offenses.

x x x."

Read more: http://www.dailymail.co.uk/news/article-3250383/More-girls-boys-juvenile-justice-system.html#ixzz3mxYzRaOr

Follow us: @MailOnline on Twitter | DailyMail on Facebook

Cambodia - Judicial Reform is the Key, Mr. Sokha says | Khmer Times | News Portal Cambodia |

See - Judicial Reform is the Key, Mr. Sokha says | Khmer Times | News Portal Cambodia |

"x x x.

PHNOM PENH (Khmer Times) – Cambodia National Rescue Party vice president and lawmaker Kem Sokha called yesterday for reforms to the court system in a meeting with the new United Nations special rapporteur on human rights, Rhona Smith. 

After the meeting with Ms. Smith, Mr. Sokhha said judicial reform is the key to ensuring equal political, social and economic opportunities for Cambodians. 

“If the court system is not reformed to become truly independent, then human rights issues in Cambodia can’t be solved,” he said. “The international community has to help reform the court system.”

The Cambodian People’s Party has been accused by rights groups and the opposition of using the court system as a tool to punish its critics.

CNRP Senator Hong Sok Hour and 14 CNRP activists have been jailed over the past few months. The activists were jailed for participating in a violent protest at Freedom Park in 2014. 

The CPP has also been accused of using the courts to cut political deals with the CNRP. In exchange for political deals it releases jailed CNRP activists, rights groups and the opposition say.

“These CNRP activists would be released if the court system were independent,” Mr. Sokha said yesterday.

Judicial Reforms

Phay Siphan, spokesman for the Council of Ministers, said there are problems with the court system here but the government has been working to lessen them.

“We fired the chairman of the Phnom Penh municipal court and we arrested some officials,” he said, referring to the firing of court chief Ang Maldey in February. 

Mr. Siphan also said reforming the court system requires training a new generation of lawyers and judges. The lacked of trained professionals here means that it not yet possible for courts to attain the same level of quality as those in the United States or France, he said. 

The government is focusing on training students to become lawyers and judges, he added.

While the Ministry of Justice has undertaken some reforms, a report published last week by the International Bar Association listed widespread problems within the judiciary, including pervasive graft. 

After interviews with lawyers, judges and civil society groups, they reported endemic bribery on the part of judges, bailiffs and court clerks. They also described political pressure from members of the government that influence court decisions.

“Culture of Dialogue”

Ms. Smith, who is on a fact-finding mission here, also met with Prime Minister Hun Sen on Monday, pledging to respect Cambodia’s national sovereignty while calling for cooperation on human rights issues. 

“I met with Ms. Rhona Smith during a meeting with H.E. Sok An. She highly values the government’s respect for human rights and she wants to learn from Cambodia more than to tell Cambodia what to do,” Mr. Siphan said. 

According to Mr. Sokha, he and Ms. Smith also discussed the Law on Associations and Non-Governmental Organizations and the status of the “culture of dialogue,” the agreement between the two parties for civility and cooperation that has frayed in recent months. 

“It is better for the two parties to meet than not,” Mr. Sokha said. “Although we get little benefit from the culture of dialogue, it is better than nothing for the nation and to avoid violence also.” 

Mr. Siphan said that under the culture of dialogue, the two parties should not defame each other. 

Mr. Sokha should be ashamed of asking for help from foreigners, Mr. Siphan continued, saying that the CNRP vice president “should not be considered a Cambodian.” 

“He is a lawmaker, who as the first vice president of National Assembly abandons his own sovereignty, looking to foreigners as a teacher and his leader,” Mr. Siphan said.

x x x."