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Friday, February 08, 2013

Marginal Judging: Teen Gets 30 Days in Jail for Single Digit Sass

By now many of you will have seen the hyperlinked story and video of a judge setting bail for Penelope Soto, a teen accused of abusing prescription drugs.  (Thanks to Dan Markel for bringing this to my attention).  She doesn't appear to be represented by counsel.  The judge asks her the cost of her jewelry: this seems to be part of his bail determination.  She give's him a flippant answer: her jewelry is "Rick Ross", i.e., expensive.  He assesses bail at $5,ooo (apparently standard for the jurisdiction); then when she sasses him, ups it to $10,000; then when she F-bombs him and provides a single digit salute, he sentences her to 30 days for criminal contempt.  Again, no lawyer is present.  

Unaccountable adjudication—where the judge need not fear scrutiny by lawyers or by superior court judges—is the mainstream version of what I've called the margins of adjudication.  It is part of a much bigger problem, one of bail as punishment and the routine denial (whether express, or worse, implicit) of counsel at low-level criminal justice hearings, rendering the judge all but invisible until they do something that titillates the media. 

There's a developed debate about the perils of opening to doors to unaccountable adjudication in the problem-solving literature.  It's the Judge Judy phenomenon, where the judge appears to be above the law rather than applying it, and responding to the defendant based upon his some need to discpline her and make her "responsible" that is unconstrained by due process.  The folks in the various comments streams who like the judge's response appear to see him as a surrogate for "bad parents" and endorse his "tough love" (my tendentious term) approach.  

Whatever you think of the defendant's behavior, and she certainly seems childish and privileged (and possibly high), what the judge does is unacceptable.  If you find it appropriate, I think that's because the Judge Judy, the People's Court, and all the rest have numbed you to what proper legal process ought to look like.  And part of the modern criminal justice process is that it occurs en mass: in the video, note the line of offenders standing waiting to have their bail hearing.

Judicial unaccountability is a feature is mass adjudication, where defendants are uncounseled, and judges operate to ensure that counsel does not disrupt the smooth running of the mass processing of minor offenses.  The Supreme Court long ago recognized the problem, in a portion of Argersinger v. Hamlin that is often overlooked (certinaly in the criminal procedure casebook I use) (it's at 34-35 of the US reporter):

“the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result.  An inevitable consequence of volume that large is the almost total preoccupation in such a court with the movement of cases.  The calendar is long, [and] speed often is substituted for care …  Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction.  The frequent result is futility and failure.  As Dean Edward Barrett recently observed: ‘Wherever the visitor looks at the system, he finds great numbers of defendants being processed by harassed and overworked officials.’”

The problem in Argersinger was not simply lack of counsel, but the failure to individualize cases and engage in mass adjudication: counsel is necessary, on this understanding of Argersinger, not because the process is complex, but because it is—as Sasha Natapoff argues—*aggregate*.  Natapoff's fantastic article is really great at uncovering the extent to which low-level courts rely on aggregate justice, and the extent to which dispensing with due process facilitates aggregation.  The problem is endemic at the lower court level.

In the teen hearing, the Judge appears to dispense with Stack v. Boyle's requirement that bail be related to ensuring appearance at court and instead imposes 5,000 as a punishment: it's difficult to be sure, because he does not give his reasons.  There's no indication that he's got any United States v. Salerno worries about dangerousness, not even the "conditions of release" ones that would require drug testing or desisting from crime.  It looks like a straight-up punishment.  

Here, it's worth pausing to recognize that there's a bunch of great stuff out there on bail and the denial of pretrial release: Shima Baradaran written some great articles on excessive pretrial detention and the role race plays, Doug Colbert has written powerfully and extensively on the need for counsel at pretrial detention hearings; and Laura Appleman has provided a scathing indictment of the process of pretrial detention.

But the problem-solving court debates reveal the problems of pretrial *release* are as onerous as the problems of pretrial detention, where, as here, judges use the bail process as a means of imposing a fine on the defendant—a fine that in most juridictions goes, not to the state, but to the bail bondsman who claims a 10% non-refundable fee for posting bail.  A little-remarked feature of the bail decisions in the George Zimmerman case is that bail was increased ten-fold to $1 million after the defendant had lied about the amount in his legal defense fund.  One interpretation of the judge's actions was that, instead of holding the defendant in contempt, he simply fined him $100,000 payable to a bail bondsman (about the amount Zimmerman lied about).

More worryingly, the ABAjournal.com article on the teen sassing case claims that the judge asked the defendant about her jewelry to assess whether she was indigent or had a right to counsel.  I'm not sure whether, in Florida, a defendant has a right to counsel at a bail hearing.  If there is no right, then we are squarely within the margins of adjudication.  But assuming she had such a right: the indigency determination is over in a matter of seconds: the court is not unusual in all of this, as excluding counsel—as Argersinger recognized—is essential to mass or aggregate adjudication.  

As Amy Bach, among others, has argued, the routine denial of counsel is a central feature of the mass adjudication nature of low-level adjudication.  Judges quite often ask defendants about their jewlery, or their friend's jewlery as a way of determining both whether the defendant qualifies for state-appointed counsel (no) and can make bail (yes).  Having disqualified the defendant as indigent, these courts—like this one, after a perfunctory determination—does not advise the defendant of her right to counsel, but steamrolls right ahead as if defense counsel was a superfluous or alien part of the proceedings.  So the court operates in the margins of adjudication, outside due process and outside superior court scrutiny unless the defendant is willing to appeal these minor decision that have major impact upon their lives.

The criminal contempt ruling allows the judge to act as prosecutor, judge, and sentencer: it takes 11 seconds to conduct the contempt hearing.  Since it's *criminal* contempt and is incarcerative, Argersinger would, one would think, require assistance of counsel.  Put differently, the Judge didn't simply revoke bail.  The judge enaged in a contempt hearing on a differenent charge and found the defenant to be "obstinate."    

As Erin Murphy puts it in her great article on process crimes, "Obstinacy charging rationalizes the imposition of punishment … [through] contempt charges for a defendant who raises a middle finger … The [cour]t's pursuit of the offense is neither about rectifying the perversion of a governmental function nor about using a pretext to achieve a particular end—it is instead about the insult to the performance of the state's authoritarian role."  Here, an uncounseled defendant, a teenager gets sentence set based on her refusal to go along with the judge gouging her for sassing him.  

Don't be misled by the fact that the teenager is confident-to-the-point-of-privileged in her ability make bail and getting off in the end.  The majority of people who are shaken down in this manner usually look much older, and much poorer.  But like Penelope Soto, they are entitled to an explanation of their right to counsel, and if the state won't appoint one, then they should be entitled to find one, particularly where liberty rights are at issue.  Many of them, like Soto, are caught in the gap between being too rich—thanks to whats on their wrists or around their necks—to qualify for state-appointed counsel, and too poor to find counsel.  Many of them have traveled hours by public transportation to be at the hearing in a remote courthouse, and have neither the time or resourses to find a lawyer.  Which means that, for many defendants in criminal cases, that basic and fundamental right of our criminal justice system is unavailable because too many of our courts operate, unnacountably, at the margins of justice. 

Posted by Eric Miller on February 8, 2013 at 05:19 PM | Permalink


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Well done! I hope all justice is fair and not blinded by money or power. She will surely learn lessons in jail for 30 days.

Posted by: Ryan | May 30, 2019 5:47:33 AM

There's excellent evidence of the phenomena you're describing in New York's town and village courts (ironically known as "Justice Courts"). The decisions of the New York Court of Appeals removing these purported judges for misconduct, which come out routinely, are probably the best formally documented records of what happens in the margins of justice.

Posted by: Justin | Feb 10, 2013 5:27:16 PM

The particular power allowing on the spot punishment for contemptuous actions in the judge's presence is called summary contempt, I believe -- and most jurisdictions have case law on the scope of that power (which is circumscribed for many of the reasons you describe.

Posted by: Clarification | Feb 9, 2013 12:08:55 PM

SB: my problem is not with criminal contempt per se, but with criminal contempt without the presence of counsel to counterbalance the features of the proceedings that make it both symptomatic of mass adjudication and judicial unnacountability. With criminal contempt, the judge moves from being a neutral and impersonal umpire guided by law into an engaged partisan, potentially guided by emotion: the slight to his authority. There are a variety of literatures explaining why this might be problematic: some in the context of problem-solving courts; some in the context of authoritarian process (Tom Tyler's legitimacy worries), and so on. In any case, the presence of oversight—through counsel among other possibilities—limits the juges's partisanship. The absence of oversight permits it, and that is an essential aspect of the sort of mass (aggregate) adjudication that I am raising here.

Posted by: Eric J. Miller | Feb 9, 2013 9:07:20 AM

I follow the criticisms of misdemeanor courts and bail practices and process crimes. But these seem to be muddled together in the post with a vague objection to criminal contempt. As the post says, "The criminal contempt ruling allows the judge to act as prosecutor, judge, and sentencer"--um, yes, that's usually how criminal contempt works when there's a disruption in court. Although there are outer limits, judges have a lot more leeway to dispense with typical criminal protections, including not appointing counsel, not empaneling juries, and even having the contempt proceedings overseen by the very judge who was personally involved in (or targeted by) the disruption. Perhaps criminal contempt is too powerful and discretionary; perhaps the discretion was abused in this case. But the departure from many ordinary norms of the criminal process in criminal contempt is neither novel nor irrational.

Posted by: SB | Feb 9, 2013 1:40:10 AM

Eric, sorry I hadn't read more closely.

Posted by: Orin Kerr | Feb 9, 2013 1:35:03 AM

Thanks to all for the comments so far. It's good to hear that the judge recognized that he overstepped, and I have neglected to pay enough attention to JD King's work in my posts so far: I've been focusing on Natapoff's aggregation and Murphy's obstinacy concepts. I'll try and do better with King's work.

In terms of Orin Kerr's point, I hoped I'd made clear later in the post—which I realize is quite lengthy and don't expect all to read—that "the judge asked the defendant about her jewelry to assess whether she was indigent or had a right to counsel. …the indigency determination is over in a matter of seconds: the court is not unusual in all of this, as excluding counsel—as Argersinger recognized—is essential to mass or aggregate adjudication." As I later point out, this places many defendants in a bind: they " are caught in the gap between being too rich—thanks to whats on their wrists or around their necks—to qualify for state-appointed counsel, and too poor to find counsel." The judge didn't give the defendant time to get counsel, so there appears to be a violation of Powell v. Alabama. Whichever way you cut it, this appears to casually cut counsel out of the equation in lower court hearings, and there is evidence from, e.g., the Southern Center For Human Rights, that such practices are endemic even when indigency is assessed in lower courts in Georgia. See https://www.schr.org/action/resources/judge_testifies_in_class_action_suit_from_unrepresented_indigent_defendants

Posted by: Eric J. Miller | Feb 9, 2013 12:23:44 AM

"She doesn't appear to be represented by counsel."

I think he was trying to determine her assets to figure out if she ws eligible to receive appointed counsel.

Posted by: Orin Kerr | Feb 9, 2013 12:04:15 AM

Let me try that again:


Posted by: Ty | Feb 8, 2013 7:53:22 PM

This is a great post - thanks. More and more crim scholars are turning their attention to the misdemeanor courts and low-level crimes, and with good reason. To the list of excellent scholarship on lack of counsel in misdemeanor courts, I would add J.D. King's work, particularly his upcoming piece in Harvard CR-CL: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2037500.

Posted by: Ty | Feb 8, 2013 7:52:21 PM

Great post, Eric.

Like you, I found the judge's behavior unfortunate (or worse), regardless of what I thought about the young woman.

And perhaps the judge realized his behavior was lacking too: http://gawker.com/5982913/teen-tearfully-apologizes-to-judge-she-flipped-off-judge-agrees-to-drop-contempt-charge-wishes-her-the-best.

None of this detracts from your main point, of course. But still: It's at least a better conclusion, right?

Posted by: SparkleMotion | Feb 8, 2013 7:02:48 PM

This judge reminds me of Maximum John, who was sent off to God's judgment by Woody Harrelson's daddy. RIP

Posted by: Jimbino | Feb 8, 2013 6:20:32 PM

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