The Economic Reason why Zero Tolerance Will Remain in Place at Public Schools

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According to the American Bar Association Journal, public schools nationwide are backing down from entrenched zero-tolerance policies. While public school administrators may sincerely like to move toward a system where they can exercise discretion in the handling of serious disciplinary cases, I don’t foresee real change on the horizon because funding systems rewards expulsion of the students who get in serious trouble at public schools.

For all of the children I have represented before school tribunals, in appeals to local school boards and to the Georgia Board of Education, I recall receiving one inquiry in my career involving a serious disciplinary matter at a private school. Why is it that public schools have embraced zero tolerance and private schools seem to handle business in a more creative if not retention-oriented manner? My untested hypothesis is that it comes down to incentives.

I have long been a fan of Charlie Munger. In a lecture back in 1995, he spoke about the power of incentives in human misjudgment.  He cites as an example a time when Federal Express employees were paid by the hour. Nothing that the company worked to get packages through night facilities in a timely manner. Then FedEx changed its policy to one where employees were paid per shift. Immediately, the packages were processed in a more efficient manner.

So, here is likely why public schools are very much in the zero tolerance camp. Private schools have an incentive to do everything they can to keep students enrolled. After all, the student, or rather the student’s parents, are the customer. Student retention is customer retention. There is a high cost involved in converting a potential student into an enrolled student, and this cost is much greater in the middle of an academic year when new pupil enrollment is less likely. If a student were expelled from a private school halfway through the year, with expulsion comes the possibility that a tuition payment will no longer be coming to the school. Also, if it is a private school that serves kindergarten through 12th grade, the lost tuition from that student is whatever that student is being charged for tuition multiplied by the number of years he has remaining in primary or secondary education (with an assumption that tuition rates will rise over that time). The school has financial reasons to retain the student and find a creative solution to a disciplinary situation.

By contrast, a public school students is not a customer. A public school student is an expense — a metaphorical line item on the expense side of a budget. Public schools are allotted a set number of dollars at the beginning of the budgetary year. And that budget is set. The reduction in the number of pupils by the number of people who get in serious disciplinary situations is a cost savings. There are many places in the disciplinary process for incentives to play out. The principal takes on the role of prosecutor in the tribunal hearing. The role of judge is played by a disciplinary hearing officer or tribunal panel. However all of these individuals receive salaries from the same school board. They all work for the same agency. Presumably, each player in the tribunal process has a shared financial incentive to drop the student from the roll. 

I have been in tribunals, however, where the incentives worked differently, and I’ve come out ahead.  For instance, if the student has a good academic track record and tests well, she is likely to test well on future standardized tests. If the student will be tested again, and the test result comprises part of a performance metric for the school, then there is an incentive to keep the student in the data pool.

If the student is a star athlete or does something else that brings the school positive attention, then there may also be an incentive to keep the student around. If the student helps an athletic team perform well, the student’s continued enrollment may have in impact on ticket sales, concession sales, the ability to attract better coaches, etc.

A student who tests poorly, who is average in terms of extracurriculars, or who has an aptitude in something that makes little difference to the school’s image (say, a moderately above average member of the chess team), is fairly low on the asset side of the equation and fairly high in the liability column. This student likely has a losing tribunal ahead of him. Bring in all the pastors, karate teachers, aunts and uncles you want, the mitigation may not be the kind of mitigation that matters.

Students who are likely to drive the school’s overall standardized test results down may be better off, from the school’s perspective, out of the data pool. And a student who requires extra resources, such as special education services, is even more of a liability. Such a student would be well advised to mind her p’s and q’s

When looking at zero tolerance policies and why they exist in the public school setting, the reason may not be that administrators are myopic. It may well be that they are operating under a set of incentives either at the conscious and subconscious level.

If school boards or legislators are interested in putting an end to zero tolerance policies, then perhaps a reform might be for the State to fund a centralized school tribunal office or administer tribunal hearings through the Office of Administrative hearings. Or perhaps the neighboring school district could supply tribunal hearing officers. Of course, in that situation there could be an incentive to keep marginal students enrolled to the extent that the neighboring school district is competing in the athletic arena or for scarce resources that are rewarded through the result of test scores.

New ABA Guidelines on Monitoring Jurors Via Social Media

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The American Bar Association has released a formal ethics opinion regarding how far attorneys may go in monitoring social media postings of jurors.

Attorneys or their representatives may monitor any activity that is publicly available, but they may not “friend” a juror in an effort to monitor their private social media postings. Nor may attorneys use a third person to friend jurors.

Further, when lawyers find evidence of juror misconduct, there are certain times when the lawyer must report it to the Court and other times when he is not:

The final question the new ABA ethics opinion addresses is what a lawyer should do if he discovers misconduct by a juror during his Internet review. “Jurors have discussed trial issues on ESM [electronic social media], solicited access to witnesses and litigants on ESM, not revealed relevant ESM connections during jury selection, and conducted personal research on the trial issues using the Internet,” the opinion notes.
Under Rule 3.3(b), a lawyer has an obligation to inform the court when the juror’s conduct is fraudulent or criminal. But if the lawyer learns of juror conduct that violates court instructions to the jury but does not rise to the level of criminal or fraudulent conduct, it is not clear if he is obligated to inform the court, the opinion says. For example, “innocuous postings” about jury service, such as the food served at lunch, may violate the jury instructions but fall short of criminal contempt.

If, by virtue of monitoring the juror’s social media postings, the juror is alerted, the lawyer has not contacted the juror. Rather, the social media service provider has initiated the contact.
Read more

Georgia Habeas Corpus and the 1st Amendment

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The Volokh Conspiracy has post up about Strine v. Delaware Coalition for Open Government, Inc., a case the tests whether a Delaware statute that provides that judges may act as arbitrators in civil cases is constitutional under the First Amendment where the arbitration sessions are closed to the public.

Professor Volokh give a little background about the first amendment and the courtroom setting:

Nonetheless, the Court has created a First Amendment right of access to certain judicial proceedings, especially criminal trials (Richmond Newspapers, Inc. v. Virginia (1980)), jury selection in criminal trials (Press-Enterprise Co. v. Superior Court (I) (1984)), certain preliminary hearings but not grand jury hearings (Press-Enterprise Co. v. Superior Court (II) (1986)), and possibly also civil trials (Richmond Newspapers). To determine which proceedings qualify, the Court generally looks to whether “the place and process have historically been open to the press and general public” and “whether public access plays a significant positive role in the functioning of the particular process in question” (Press-Enterprise (II)).

His background goes on to discuss Presley v. Georgia, a per curium opinion that held that a restriction on access to a DeKalb County, Georgia, courtroom during voir dire was unconstitutional.

A more interesting Supreme Court case might be made of the typical rural Georgia habeas corpus proceeding. It’s rare that I attend a habeas proceeding inside a courthouse anymore. There has been a move to conduct habeas proceedings inside of day rooms, cafeterias, and faux courtrooms inside the prison.

A recent habeas hearing I attended may illustrate the experience. The courtroom was inside a secured building with rows of fencing and razor wire. To get in, I had to push a button and announce over an intercom that I was a lawyer with a case. The gate opened, and I made my way into the area where I surrendered my car keys and identification for a visitor’s badge. A door made of bars slid open as I entered. Then I went through two sets of locking doors to find the courtroom, where a folding cafeteria table served as the judge’s bench and attorneys and witnesses were provided with plastic chairs. To be fair, I suppose that members of the public may have been let in had they just shown up and requested access. But the setting didn’t seem like an open courtroom. For one, we were not in the county seat. For another matter, we were in a privately-owned prison. The deputies and bailiffs were corporate corrections officials. Our courtroom did not bear the seal of the State of Georgia. Rather, a birthday banner celebrating the facility’s fifteenth birthday (who knew that prisons were born) was hung behind the judge.

Counsel for habeas petitioner must choose our battles. The battle is uphill as it is. I’ve never brought a first amendment challenge to the setting of habeas proceedings inside of prisons. If, for no other reason, I’ve anticipated the response might be, “Very well, Mr. Key. We will move Mr. Smith’s case over to the courthouse. Let’s see how your hearing goes now.” The last sentence in might not be spoken aloud. The judge’s response might be that any member of the public brave enough to walk the gauntlet into the courtroom would be welcome to attend the proceedings. Therefore they are open.

I’ve never had the right set if facts or the desire to sacrifice my client’s possible chances of success in a habeas year to the First Amendment principle. But there may be such a principle at stake in some of these proceedings.

Where Fundamentalism and the Law Meet Somebody is Headed to Prison

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Legislators in Virginia are contemplating changes to the law in response to MacDonald v. Moose (4th Cir. 2013), a case that struck down Virginia’s law that prohibited non-genital sex generally. Specifically, legislation has been introduced that would make it a felony for an adult to engage in non-genital sex with a minor between age 15 and 17, while vaginal intercourse is a misdemeanor. Vaginal sex among 15-17 years olds is perfectly legal, while non-genital sex would be a crime. Prostitution would be a misdemeanor as long as the prostitute and the john engage in vaginal intercourse; any other type of sex would be a felony.

In Georgia, we draw equally if not more draconian distinctions between genital and non-genital sex. For instance, public indecency covers “an act of sexual intercourse” in a public place. That crime is a misdemeanor under O.C.G.A. § 16-6-8. However, the offense of sodomy in a public place is a felony punishable by not less than one and no more than 20 years to serve in prison. Bowers v. Hardwick struck down Georgia’s sodomy law, but only to the extent that it applies to that sexual act in a private place. Public acts of sodomy are still illegal. See Mauk v. Ga. A few years ago, I was unsuccessful in an 8th Amendment challenge to a 10 year (without parole) sentence for a young man who was convicted for a voluntary act of non-genital sex with another teen.

Professor Volokh writes this about proposed changes to the law in Virginia:

I realize that some people … view nongenital sex as immoral — but even those people, I assume, are uninclined to outlaw things (unkindness, dishonesty, not honoring your father and mother, coveting your neighbor’s wife or property, and the like) just because they are immoral. Indeed, even people who view premarital sex generally as immoral tend not to be inclined to pass new laws banning all fornication. What is there about nongenital sex that makes it more properly subject to outlawing, especially given the perverse incentives that such a prohibition would create?

If the legislation passes, then Virginia, like Georgia will treat non-genital sex with a harsh sentencing scheme versus acts of vaginal sex. It is unclear why the legislature would incentivize teenage intercourse at the risk of unwanted pregnancy and the spread of disease, other than that such a scheme is an expression of the fundamentalist religious beliefs of individuals in power (welcome to our little red state). Of course, it’s difficult to justify the lengthy incarceration of teens based upon the decision to violate the religious sensibilities of state representatives and senators. Nevertheless, in a moment of passion between teens or between adults in certain situations, the message from our wise legislators is that the actors had better “go all the way.”

Court Reporters and Digital Audio Recording: Time for a Change?

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My new favorite law blog is Judge Richard Kopf’s Hercules and the Umpire. Lately, it’s been the first place I click on my reader. His blog is conversational and offers a view of the Federal Court from the other side of the bench.

A recent post of his was particularly spot on. It begins “For a long time now, I have used digital audio recording, rather than a court reporter. Digital audio recording is the marriage of a computer and a sophisticated sound system with multiple channels. It is monitored by the courtroom deputy in real-time eliminating the necessity of a court reporter.” 

The daily recordings are uploaded to CM/ECF so that any person, at a small cost, can listen to them. The lawyers have access to what was said, and a transcriptionist can render things on paper in the event of an appeal. There’s no need to fund a court reporter for take down, and the job of transcribing can be outsourced for quick turnaround. I am not sure what certifications are necessary, but presumably a court reporter anywhere in the world could be contracted to transcribe the proceedings as necessary.

I use Speakwrite to transcribe office documents or interviews when my office is too overburdened. Generally, within hours of upload, I have a transcript sitting in my email inbox. Presumably, such a system could be set up for court transcripts with folks certified to do them.

I don’t know how long it will take for such a system to catch on in Georgia, but I hope it happens soon. Such a system would change the landscape of appellate practice. Consider:

  • The wait for the transcript is the single longest part of the appellate process. Digital recording with upload to a central server expands the range of possible people who could do the work, virtually overnight.
  • Often appellate lawyers are waiting around for months or years for transcripts to arrive only to be bombarded with three or four at once.
  • That wait can be a great source of tension between the lawyer and the client. It is hard to explain to a client who is languishing in prison that it is not the lawyer’s fault that the court reporter is taking a year or more to type up the proceedings.
  • For matters where a transcript is not essential, the recording provides a way to impeach witnesses or review what is said. It provides a tangible record of what happened in situations when there is not time to get a transcript prepared or in situations where it would not be ordered.
  • It would save lawyers, clients, and the State money.
  • More will get recorded. Judges order their court reporter to go “off the record” with impunity. When that happens, something bad is going to transpire. Ordering a recording system to be turned off seems more Nixonesque somehow.

The idea of having a court reporter seated with a stenograph machine in the age of digital recording seems a tad antiquated. If one were designing a recording system for courts from the ground up today, we likely wouldn’t dream up the position of court reporter (a point made in the comments to the judge’s blog post). It likely made sense in the 1930s, but we are left with this vestigial court official.

Take a look at this new blog. And, if you are a reader with power to make digital recording happen in Georgia, please do so.

New Law Spares Life of Warren Lee Hill

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Andrew Cohen at The Atlantic Monthly has a post up on how Georgia’s legislature created a law that spared the life (so far) of Warren Lee Hill, a man that the State has been trying to kill. It’s a must read if you are trying to teach someone the concept of irony.

This past year, the legislature enacted a law that made the identity of companies that provide drugs for execution a state secret. The problem came when Lundbeck, the Denmark Company that makes pentobarbital, a key component in the cocktail of drugs administered during lethal injection, refused to distribute the drug if it would be used in an execution. The supply that the Department of Corrections had on hand was set to expire.

Efforts the Georgia Department of Corrections have undergone to get its hands on drugs to kill Georgia inmates have proven to be a source of embarrassment in the past. In 2011, federal drug agents seized Georgia’s stockpile of sodium thiopental obtained from a shady British supplier that was “operating from the back of a driving school in England.” The stockpile had also come under scrutiny when it was alleged that state corrections officials violated federal law by not registering its shipment of the drug with the DEA.

The obvious way for the Georgia DOC to avoid embarrassment in the future would be to stop obtaining drugs from shady suppliers. The legislature decided not to go that route. Instead, to stop future such stories, the legislature decided to make the identity of the supplier a state secret. Supporters of the bill claimed that the purpose was to prevent the harassment of such companies. An alternate explanation is that secrecy would allow the Department of Corrections to seek out other shady suppliers without the fear of future embarrassment.

When a challenge to the state secrets law was heard in a trial court, “the judge asked the obvious question: How can the executive branch constitutionally conspire with the legislative branch to block the judiciary from considering all the relevant components of a planned execution?” How can the court system evaluate an 8th amendment claim to the death protocols of the DOC if the judge cannot know what those protocols are?

Because the court reporter did not have the transcript prepared in time for the case to make its way to the Supreme Court of Georgia, this matter could not be reviewed before Mr. Hill’s death warrant expired.

This past year I participated in my first hearing before the House Judiciary Committee to speak out against some unrelated legislation. The Atlantic Monthly writer is absolutely correct in his analysis of how the sausage is made. When I spoke and offered comments that I had researched and thought out I might as well have been Charlie Brown’s teacher. By contrast, the representatives of the Prosecuting Attorneys’ Counsel were treated like ex officio members of the committee.

In this case, they should have been careful what they wished for.

New Field Sobriety/Miranda Case Important at Several Levels

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The Court of Appeals, with a panel made up of Judges Dillard, Ellington, and Phipps, has reversed an order granting a motion to suppress from the State Court of Fayette County.

I write about this case because it further develops the law in the area of Miranda and field sobriety testing and because it illustrates how the standard of review on appeal can change when a significant part of the proof is on videotape.

In State v. Mosely, the Court of Appeals reviewed the field sobriety tests in a DUI case. The facts are fairly straightforward. Police responded to a call from a convenience store clerk who witnessed a dispute in the parking lot between a man and a woman. Police arrived to find a man and woman standing beside Mr. Mosley’s car, which appeared to have been involved in an accident.

At which point, the office became suspicious of DUI because the man had trouble walking and smelled of alcohol. A second deputy appeared who asked the man if he would take field sobriety tests. After some discussion, the officer said:

Listen, listen, listen to me – step back and lean on the bumper. Would you mind voluntarily doing field sobriety tests? … I’m saying I’m going to conduct some field-sobriety test, test your impairment to see if you are safe enough to drive and/or walk away.

It was all downhill from there. Mr. Mosely took the tests and was arrested for DUI.

The trial court (Judge Carla McMillan, who is now on the Court of Appeals) held that the request for field sobriety was custodial and that the officer should have Mirandized Mr. Mosely before proceeding.

The Court of Appeals reversed noting several things:

  • since the evidence was undisputed and was largely captured on videotape, the standard of review should be de novo;
  • since the officer told Mr. Mosley that the test was voluntarily, it was not compelled;
  • since the defendant was told that the detention would be temporary, it did not rise to the level of custody (what about the part where the officer said that he was going to conduct the tests and that the purpose was to see if he could walk or drive away. Sound pretty open-ended, no?)

There are a couple of important takeaways from this case.

  • If you can proceed to the appellate courts on undisputed facts or with videotaped evidence, you have a shot at winning with a less deferential standard of review;
  • Statements about what an officer is “going to” do does not imply a command. A statement that participation in field sobriety testing is necessary to see if a person is safe enough to leave is not necessarily a statement that the person is not free to leave or that successful completion of field sobriety testing is pre-requisite to leaving the scene.

This case also leaves a question. To what extent is a holding by an appellate panel or the Supreme Court to be viewed as precedent where the Court has reviewed a case de novo? Is the appellate court making a ruling of law, or it acting as a second trial court reviewing a unique set of facts under existing law?

If I’m at a suppression hearing and this case comes up, I’m going to say it’s the latter.

Video Interview: Discussing Gun Control & the Second Amendment in the Supreme Court with LXBN TV

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Following up on my post on the subject, I had the chance to speak with Colin O’Keefe of LXBN regarding just how far gun control can go under the Second Amendment and when this was last tested by our country’s judicial system. In the interview, I discuss Heller v. District of Columbia, the last Second Amendment case to reach the Supreme Court.  Read more

How Far Could Gun Control Constitutionally Go?

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In light of recent events, gun control is the subject of discussion. My practice touches upon guns. Generally it arises in the context of clients who have been accused or convicted of being felons in possession of a firearm or of being in possession of a weapon during the commission of a crime. I have defended a client, with a previous domestic violence charge (without a conviction) in his application for a concealed weapons permit. However, I thought it time to inform myself because I have read uninformed publications (newspaper editorials) and postings (Facebook news feed) on the Second Amendment. This post will consider how far gun control legislation could go without running afoul of the United States Constitution. It leaves for another day the values at stake and the efficacy of such legislation. It ultimately attempts to answer the question of the extent to which the debate about gun legislation is Constitutional in its nature.

The Short Answer

The real answer is found in the Second Amendment: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

We could stop there technically. The difficulty is that the language is archaic. And the meaning is as debated as much as certain scriptures are debated.

The Supreme Court’s Answer

There is not a full answer from the Supreme Court. Gun legislation, though the subject of a perennial discussion, has infrequently been taken up by the United States Supreme Court. The Bill of Rights was long thought to be a check on Federal power only, and States did not attempt to pass gun control legislation through much of the nation’s history. The Second Amendment has not been tested as much as the Fourth Amendment, the First Amendment, of the Sixth Amendment.

For the most comprehensive answer about the meaning of the Second Amendment, District of Columbia v. Heller, 128 S. Ct. 2783 (2008) is the one place to go.

The Statute at Issue in Heller

D.C. passed a statute making it illeal to possess an unregistered handgun and which prohibited the registration of handguns. And no person could carry a handgun without a license; licenses had to be renewed yearly. Plus, any lawfully owned firearms were to be kept “unloaded and dissembled or bound by a trigger lock or similar device unless located at a business or in use for lawful recreational activities.”

The Decision in Heller

This statute almost squeaked by. It was struck down, but only by a slim 5-4 margin, with Justice Scalia writing for the majority. And, even there, the yearly licensing requirement was affirmed.

The majority opinion and the dissent include dense historical information for the context of the Second Amendment. If you really want to be informed, I commend it to you. I’m going for the short answer here.

  • The statute at issue was struck down because it prohibited “an entire class of ‘arms’ that is overwhelmingly chosen by American society for [self-defense].”
  • However, the Court also recognized that “the rights secured by the Second Amendment is not unlimited.”
  • The State may prohibit the possession of firearms by a felon or the mentally ill. And the State may forbid them in sensitive places such as schools and government buildings. And it may regulate the commercial sale of arms.
  • It is permissible to impose a yearly licensing requirement to possess handguns.
  • The Court specifically noted that “the enshrinement of constitutional rights does not necessarily take certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home.”

Congress and the States have a broad number of tools available to them that would pass Constitional muster. Those tools could go as far as the getting rid of self-defense as an affirmative defense, a ban on certain classes of long guns, a ban on long guns altogether, a ban on certain classes of handguns, the requirement of extensive background checks, a mental health examination as a prerequisite to purchase, a ban on the sale of guns if a felon, mentally ill person, or person who could not be licensed lives in the home. Gun buyback programs would be constitutional. As would any number of other very regulatory actions. Licenses to possess as well as conceal are constitutional. And it is likely that a six-month renewal requirement would be upheld.

As you engage in debate and read or watch the debates of others on the subject of guns, it is important to know that this debate is largely one of policy and competing values. Unless the proposed solution goes at least as far as D.C. tried to go in Heller, the debate is likely not a constitutional one. And the 5-4 vote could easily shift to a 4-5 vote in the coming years.

New SCOG Opinion Sets Out Rules for Voir Dire in Death Penalty Cases

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A recent Georgia Supreme Court case on jury selection provides a framework for determining what a case’s subject matter is. There is a fine line between asking juror to prejudge the facts and figuring out if jurors cannot be fair. A few words about the problem in the case first. Full disclosure, I was amicus counsel on this case.

Defendant Ellington was on trial for his life in an indictment alleging that he had murdered three people. Though not mentioned in the indictment, two of the three victims were young children. Mr. Ellington was not charged with any offenses, such as cruelty to children, that would have otherwise revealed age. The defense wanted to discover which jurors would be unable to consider a life sentence for a man convicted of killing a child victim. The State argued that, since age was not disclosed in the indictment, this case was not “about” children. And, since the victims’ age would be developed as the facts were presented, it was not proper to ask the jury to pre-judge the facts. On the one hand, it is entirely proper to find out if jurors could not consider the facts and apply them to the law. On the other, it is not proper to pose hypothetical facts to jurors and ask them how they would decide the case based upon those facts.

The Court acknowledged that children are different. In federal death penalty cases, the youthfulness of a victim is an aggravating factor. And it is a factor in at least thirteen states. Our basic instinct is to protect children. That instinct is codified in law and in the rules of evidence. Within a minute of the beginning of the State’s opening statements, the State made age a theme. And it was a theme in closing as well.

The holding and the broader lesson.

The holding is arguably narrow. But the lesson to take from the reasoning is broad. At the very least the holding is that, in a death penalty case where children are the victim, it is appropriate to ask jurors whether they could consider the possibility of a life verdict. In the broader sense, the reasoning is that cases are about more than what is plead in an indictment.

Whenever there are facts in your case that would inherently bias jurors, it is important to ask about it in voir dire.

  • In DUI or drug cases, it is important to ask jurors about experiences with alcohol and drugs. It is a rare family that hasn’t been touched by addiction. And it is reasonable to expect that some jurors aren’t qualified to sit in those kind of cases.
  • The age of the defendant may bias some jurors.
  • There may be certain types of crime where jurors cannot possibly be fair. A person who owns a retail store may not be an appropriate juror in a shoplifting case.

As you prepare for voir dire, consider what things about your case could be a problem for certain jurors. Then craft questions designed to find out who those jurors are. Anticipate that opposing counsel will object and say that you are asking jurors to prejudge facts. Prepare your response using the language in Ellington. And keep in mind that a case is often about much more than the language contained in the indictment.

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