Louisiana Makes Rare Finding That Sentence Is Unconstitutionally Excessive

A life imprisonment sentence entered for a man with three prior non-violent felonies (twenty, fifteen and eight years old respectively) for taking $15 out of a car set up by police as a "bait-vehicle" was vacated as excessive under the Louisiana constitution, but would have probably survived 8th Amendment review under the U.S. Constitution.

Both 8th Amendment jurisprudence, and the criminal statutes that make this kind of sentencing possible, are deeply flawed. It also represents a gross abuse of prosecutorial discretion in New Orleans (no doubt for reasons not unrelated to  the defendant's race), and the law enforcement tactics used to tempt someone who might not otherwise have committed the crime at all to commit a technical felony are dubious, even if this ruling upheld their legality.

Walter Johnson reached into a “bait-vehicle” and stole $15. The jury convicted him of simple burglary of a vehicle, a violation of La. R.S. 14:62. In due course, following Mr. Johnson‟s adjudication as a fourth felony offender under the provisions of La. R.S. 15:529.1 A(3)(b), the district judge sentenced him to imprisonment for the remainder of his natural life, which is the statutorily mandated minimum sentence. His life sentence, as imposed, was without the benefit of parole, probation or suspension of sentence. . . . 

Mr. Johnson appeals his life sentence without benefit of parole, probation or suspension of sentence as excessive, violating our state‟s constitutional protection against such sentences under La. Const. art. 1, § 20. The sentencing judge found that none of Mr. Johnson‟s four felony convictions involved any violence. Because we find that the “hidden death penalty”1 imposed in this case is unconscionable and shocks our sense of justice, and is thus excessive, we vacate the sentence as imposed. We remand this matter with instructions to the district judge to conduct an evidentiary hearing on Mr. Johnson‟s motion for downward departure from the statutory minimum sentence and to impose a sentence which is not, in the constitutional sense, excessive. . . .  

A police task force situated a Jeep Cherokee vehicle on a street in Uptown New Orleans. The Jeep was outfitted with interior and exterior surveillance equipment. The Jeep‟s driver side window was left down and its doors unlocked. A $10 bill and a $5 bill, the serial numbers of which were recorded by police, as well as a laptop computer were situated in the vehicle such that any passer-by could easily observe the money and the device. On the video surveillance tape, Walter Johnson is seen to be walking past the bait-vehicle and glances into it. He immediately reappears in the videotape and is seen snatching something from inside the Jeep. He then moves out of camera range. Shortly thereafter, the police officers confronted him and located the same two bills on his person. The laptop was undisturbed in the vehicle. . . . 

Our state constitution prohibits any law that subjects an individual to “cruel, excessive, or unusual punishment.” La. Const. art. 1, § 20. The Louisiana Constitution differs from the Eighth Amendment to the U.S. Constitution in its explicit prohibition of excessive sentences. Cf. U.S. Const. Amend VIII (“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”). This “deliberate inclusion by the redactors of the Constitution of a prohibition against "excessive‟ as well as cruel and unusual punishment broadened the duty of this court to review the sentencing aspects of criminal statutes.” State v. Baxley, 94-2982, p. 4 (La. 5/22/95), 656 So. 2d 973, 977 (citing State v. Goode, 380 So. 2d 1361, 1363 (La. 1980)). 

A sentence is excessive and therefore unconstitutional if “it makes no measurable contribution to acceptable goals of punishment and is nothing more than the purposeless imposition of pain and suffering and is grossly out of proportion to the severity of the crime.” See State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (internal citation omitted). Thus, even though an imposed sentence may be within the statutory sentencing range, and therefore “legal,” it may still violate a defendant‟s constitutional right against excessive punishment. See id., at 1280; State v. Sepulvado, 367 So. 2d 762, 767 (La. 1979). And, although we give great deference to the legislature‟s authority to determine the appropriate punishment for a crime, we emphasize that “no penalty is per se constitutional.” Solem v. Helm, 463 U.S. 277, 290 (1983); see also State v. Pernell, 14-0678, p. 4 (La. App. 4 Cir. 10/15/14), 151 So. 3d 940, 944. 

B  

At the outset, we note that Mr. Johnson was sentenced under a provision of the Habitual Offender Statute that mandates a sentence of life imprisonment without benefit of parole, probation, or suspension of sentence as a fourth felony offender. See La. R.S. 15:529.1 A(4)(b). Thus, the sentence imposed on Mr. Johnson is “legal” in the sense that it falls within the statutory range. See State v. Gibson, 16-0132, pp. 8-9 (La. App. 4 Cir. 3/16/16), 192 So. 3d 132, 137-38.  

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.2 

2 Notably, the United States Supreme Court has stated that an unconstitutional sentence “is not just erroneous but contrary to law and, as a result void.” Montgomery v. Louisiana, 577 U.S. ---, ---, 136 S.Ct. 718, 731 (2016). Thus, a sentence which is unconstitutionally excessive is also illegal. 

Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.  

We acknowledge that Mr. Johnson‟s life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. See State v. Johnson, 97-1906, p. 7 (La. 3/4/98), 709 So. 2d 672, 677. Legitimate sentencing goals notwithstanding, Mr. Johnson‟s status as a fourth felony offender “cannot be considered in the abstract.” Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. See id., at 297; see also Johnson, 709 So. 2d at 676. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged.  

Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft. See La. R.S. 14:67 B(4). Notably, the grades of theft are divided based on the amount misappropriated—the legislature set the maximum amount for misdemeanor theft at $750. The amount in this case is relevant— fifteen dollars is extraordinary in its triviality. 

We do not deny that, as a recidivist, Mr. Johnson should face some form of punishment. The inquiry of whether a sentence is grossly disproportionate, however, focuses on whether “a person deserves such punishment, not simply on whether punishment would serve a utilitarian goal.” Rummel v. Estelle, 445 U.S. 263, 288 (1980) (emphasis added) (POWELL, J., dissenting). Although a lifewithout-parole sentence may well serve to deter recidivism, the immense severity of the punishment does not fit the crime(s) in this case.  

 “[L]ife without parole is the second most severe penalty permitted by law.” Graham v. Florida, 560 U.S. 48, 69 (2010) (internal quotation marks omitted) (quoting Harmelin v. Michigan, 501 U.S. 957, 1001 (1991)). Only a sentence of death, which is not authorized in this case, exceeds it. Cf. La. R.S. 14:30 C (providing for capital punishment in first degree murder convictions).3

3 The United States Supreme Court has recognized that “defendants who do not kill, intend to kill, or foresee that life will be taken are categorically less deserving of the most serious forms of punishment than are murderers.” Graham v. Florida, 560 U.S. 48, 69 (2010)(citations omitted).  

Thus, Mr. Johnson has received the harshest punishment possible for his crimes. And, even though he is not subject to capital punishment, his sentence is comparable in that it irrevocably forfeits his life, freedom, and any aspirations he had for the future. Indeed, “[l]ife in prison without the possibility of parole gives no chance for fulfillment outside prison walls, no chance for reconciliation with society, no hope.” Graham, 560 U.S. at 79.   

Mr. Johnson is thirty-eight years old. He has three prior felonies: simple burglary in 1996, possession of heroin in 2001, and distribution of cocaine in 2008. Notably, the provision under which Mr. Johnson was sentenced subjected him to the same sentence as repeat violent offenders and sexual predators, despite his history of non-violence. The life-without-parole sentence imposed on him forgoes any possibility for redemption, and means that any character improvement or good behavior on his part is immaterial; he has been determined to be irredeemably and irreparably corrupt. And, barring the remote possibility of executive clemency, Mr. Johnson will spend the rest of his days in prison. See Solem, 463 U.S. at 303 (“Recognition of [the] bare possibility of commutation would make judicial review under the Eighth Amendment meaningless.”). We cannot condone a sentence which condemns Mr. Johnson to a life—and inevitable death—within prison walls, in light of his non-violent criminal history and the extraordinarily minor crime in this case.4  

4 Indeed, Louisiana courts have recognized that some sentences imposed legally under the state‟s Habitual Offender Statute are nevertheless unconstitutional. See, e.g., State v. Mosby, 14-2704, p. 1 (La. 11/20/15), 180 So. 3d 1274, 1274 (thirty-year sentence for seventy-two-year old nonviolent offender is “unconscionable.”); State v. Dorthey, 623 So. 2d 1276, 1280 (La. 1993) (twenty years for non-violent habitual offender may be excessive); State v. Ladd, 15-0772, p. 16 (La. App. 4 Cir. 4/13/16), 192 So. 3d 235 192, 244 (seventeen-year sentence excessive for defendant with history of drug possession convictions); State v. Combs, 02-1920, p. 6 (La. App. 4 Cir. 5/21/03), 848 So. 2d 672, 675 (life sentence excessive for defendant with history of non-violent offenses); State v. Burns, 97-1553 (La. App. 4 Cir. 11/10/98), 723 So. 2d 1013, 1019 (twenty-five-year old defendant sentenced to life as fourth felony offender is “young enough to overcome his addiction” and has “the possibility of a productive future.”). 

We thus vacate the life-without-parole sentence imposed on this defendant and remand for resentencing.  

Full opinion here.

Johnson's fate is now in the hands of a trial court judge in New Orleans who has immense discretion in sentencing in this case, but unlike the original verdict, has some discretion. In all likelihood, the final sentence will not be life in prison without parole, but will probably, at least, be the maximum sentence for the offense without a habitual offender enhancement.

Background

A local newspaper story has more background on the case.

He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law. 

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no chance for parole. . . .

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases. 

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. 

Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't "exceedingly rare" enough to allow a sentence below the mandatory 13-year minimum under the statute. 

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more often than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to data analyzed by the Pew Charitable Trusts. 

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. 

"If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law." 

According to a state corrections spokesman, Johnson has returned to prison frequently on probation and parole violations, as well as new charges, since his first conviction, in 1996, for simple burglary. 

He has shuttled in and out of prison, with convictions for heroin possession in 2001 and cocaine distribution in 2008. His record also includes a conviction for possession with intent to distribute counterfeit drugs, records show. . . . 

[Appeals panel] Judge Joy Cossich Lobrano agreed with them in denying Johnson's bid to overturn his conviction — he had argued entrapment — but declined to declare his life sentence excessive. Lobrano said she would have ordered Herman to hold a hearing first before making that determination.

Colorado Habitual Sentencing Compared

Colorado's recidivist sentencing regime is not as draconian as that of Louisiana.

* One problem with the Louisiana statute is that it classified an offense that should have been a misdemeanor as a felony. Colorado law would not classify removing $15 from a vehicle without breaking into the vehicle as a felony. It would be a class one petty offense, see C.R.S. § 18-4-401 and would not be eligible for habitual offender enhancement which apply only to felony offenses.

In Colorado, this offense by this offender would have resulted in up to a six month jail sentence (about half of which could be reduced for good behavior in addition to any credit for time served), a $500 fine, court costs, and restitution or seizure of the $15 stolen.

* Another problem is that Louisiana unreasonably elevated a prior mere drug possession offense to a felony, something that states like Colorado are moving away from now. One of this man's prior felonies, possession of heroin, is currently a misdemeanor in Colorado, although it would have been a felony at the time.

* A third problem is that it allows life imprisonment without parole for less serious new offenses and prior offenses. Colorado's statutes require more serious priors, or more recent priors, or do not carry a life imprisonment consequence and instead have an enhanced sentence proportionate in some way to the current offense. No habitual criminal statute in Colorado carries a life without possibility of parole sentence.

Colorado's life in prison with parole after forty years for habitual criminals statute requires that the current conviction be for a class 1 felony (first degree murder or aggravated kidnapping), a class 2 felony (e.g. second degree murder), or a class 3 violent felony (e.g. armed robbery), specifically excludes burglary offenses, and requires two prior convictions of similar seriousness, or a current conviction for a violent felony and has a previous habitual criminal conviction. C.R.S. § 18-1.3-801(1) and (2.5).

None of this man's priors wold have counted for the purpose of this Colorado statute even if he had committed a felony this time.

Colorado's other general habitual criminal provisions requires a felony conviction two prior felonies within the last ten years that are not of the least serious (class 6) class, and triples the maximum sentence, C.R.S. § 18-1.3-801(1.5), or to a felony conviction other than a minor drug conviction with three prior felonies that are not the least serious at any time resulting in quadruple the maximum sentence, C.R.S. § 18-1.3-801(2).

He would have only one prior for the purpose of tripling statute, but might have been eligible if he had committed a Colorado felony for the quadrupling statute.

Colorado's habitual burglary statute includes only first or second degree burglary, not lesser burglary offenses, requires a prior serious burglary offense to be within the last ten years, and sets a maximum sentence of double the usual offense, and a minimum sentence equal to the usual maximum sentence. C.R.S § 18-13-804.

He would have had no priors for the purpose of this statue in Colorado.

Colorado's habitual offense statutes, unlike those of some states, also only allows one strike for criminal episode, even if multiple convictions for felonies resulted from that criminal episode.

* Finally, don't take this blog post as a definitive statement of Colorado recidivist sentencing law. While I capture the highlights, there are several fine details not applicable in this fact pattern that are relevant.

Colorado Program Trains Makers

The U.S., in general, has done a rather poor job of recognizing that a high school curriculum designed to prepare students for a liberal arts higher education is not the optimal option for everyone. But, there are programs in place that do provide alternatives in Colorado.

The old shop classes in Colorado schools that included drill bits, lumber and T-squares have morphed into a place where robotics, virtual reality and wind power are being taught. More and more students are flocking to these courses during high school and after, lured by state-of-the-art technology, low tuition and secure future job prospects. 

After a drop from 2009 to 2012, enrollment in career and technical education courses has surged, with more than 125,000 high schoolers and 20,000 middle schoolers enrolling in 2015. In all, a record 181,000 Colorado students were enrolled in CTE courses, a national curriculum with seeds in vocational education courses. . . .  These days, CTE courses span agriculture, skilled trades, business marketing, criminal justice, culinary arts, fashion design and Science, Technology, Energy and Math, or STEM. 

“This is not your granddad’s vocational education,” said Sarah Heath, state director/assistant provost for CTE in the Colorado Community College System. A lot of these students enter into a marketplace desperate for workers. As many as 16,000 advanced manufacturing jobs go unfilled each year and most require highly skilled workers, experts say. To that end, 84 percent of high schoolers who finish CTE courses had jobs within a year, while 94 percent of all CTE finishers obtained a job, Heath said. Starting salaries depend on the job, but high school graduates with a mechanical maintenance degree can start at $29,000 annually and go up to $83,000, CTE officials say. . . .  Many CTE courses are concurrent, meaning high school students can earn college credits. Enrollment in these classes is at an all-time high after a roller coaster ride in the years after the Great Recession. 

By last year, 38 percent of all enrolled students in Colorado secondary schools, or 125,182, took at least one CTE course, an all-time high, according to officials. Those numbers were up from 120,702 in 2013-14 and continue an upward trend in CTE enrollment after dipping to 112,427 in 2011-12. Post-secondary enrollment was also up in 2014-15, with 34,829 students. Only 2012-13 boasted a higher enrollment, 34,893.

The most popular certificate programs for high school students are for nurses aides, welding, automotive technology and cosmetology, Heath said. 

For pure value, it’s hard to beat many career- and technical-oriented courses, proponents of technical education say. Students at Aims Community College, for instance, haven’t faced a tuition hike in six years. Those who live in the taxing district around the Greeley-based school pay $2,021 a year for 30 credit hours, Aims spokeswoman Laura Coale said. Weld County, meanwhile, provides residents with up to $3,000 a year for four years to use toward education, Coale said. By contrast, tuition for two semesters at the University of Colorado at Boulder for in-state residents pursuing an undergraduate degree in business is $31,745; for engineering, it’s $30,065.

From here.

As an aside, the usual "E" in STEM is "engineering" and not "energy".

Lesbian and Bi-Women Massively Overrepresented Among Incarcerated (Gay Men Also, But Less So)

There are proportionately a lot more lesbian and bisexual women in jail and prison than in the general population, and they are treated worse while they are there than straight women. Gay and bisexual men are over-represented and treated worse, but less dramatically.

OBJECTIVES:To report characteristics of sexual minority US inmates. 

METHODS: We drew our data from the National Inmate Survey, 2011-2012, a probability sample of inmates in US prisons and jails. We determined weighted proportions and odds ratios with 95% confidence intervals to estimate differences between sexual minority and heterosexual inmates.

RESULTS: Sexual minorities (those who self-identify as lesbian, gay, or bisexual or report a same-sex sexual experience before arrival at the facility) were disproportionately incarcerated: 9.3% of men in prison, 6.2% of men in jail, 42.1% of women in prison, and 35.7% of women in jail were sexual minorities. The incarceration rate of self-identified lesbian, gay, or bisexual persons was 1882 per 100 000, more than 3 times that of the US adult population. 

Compared with straight inmates, sexual minorities were more likely to have been sexually victimized as children, to have been sexually victimized while incarcerated, to have experienced solitary confinement and other sanctions, and to report current psychological distress. 

CONCLUSIONS: There is disproportionate incarceration, mistreatment, harsh punishment, and sexual victimization of sexual minority inmates, which calls for special public policy and health interventions.

IH Meyer, et al.. "Incarceration Rates and Traits of Sexual Minorities in the United States: National Inmate Survey, 2011-2012." Am J Public Health (Epub ahead of print December 20, 2016).

Commentators on the story are asking the question, how much of the difference is differences in rates of crime commission and how much of the difference is due to different treatment in the criminal justice system. There is certainly enough of a disparity for both factors to play a role.

Arrests Are Often Deadly

Official statistics have in the past put justifiable homicides at the hands of law enforcement in the hundreds. But, a lot more people die when being arrested:

An estimated 1,900 people died while being arrested by police in America in 2015, according to new figures from the federal government. The deaths include both those who died directly as a result of police use of force and those who died while being restrained by police, by suffering a heart attack for example. 

Sixty-four percent of the deaths were homicides, including justified homicide by a law enforcement officer. Eighteen percent were suicides, 11 percent were accidents, and less than 2 percent were natural. The rest of the deaths were undetermined, unknown, or subject to an incomplete investigation. While past reports issued by the Bureau of Justice Statistics addressed the demographics of those who died during arrest, the report published last week did not include such a breakdown. 

The numbers are the first to be published since the Bureau of Justice Statistics overhauled its arrest-related death-counting methods in 2015. The data now better aligns with newspapers’ and activists’ estimates, which historically were much higher than the federal government’s, FiveThirtyEight reports. And it helps to fill a long-growing desire among activists and officials for better government data on police use of force in general.

There were about 10,800,000 arrests in 2015.  There were about 19 deaths per 100,000 people arrested in 2015.

Back Page Criminal Charges Dismissed

California brought criminal pimping charges against the owners of the online website "Back Page" because many of the advertisements on the site are advertisements for the sexual services of victims of human trafficking. 

The charges were brought and the CEO was arrested on October 6, 2016. Two co-defendants who were also executive in the company were also arrested.  All three men were then released on bail after spending four days in jail over the prosecution's objections. Their lawyer then filed a motion asking that the charges be dismissed that was fully briefed.

A preliminary ruling dismissing the charges was made on November 16, 2016. And a week ago the charges were dismissed in a final ruling, because federal law related to user provided content on websites provided the defendants with immunity from liability, just as the California prosecutor bringing the case had stated it did in public back in 2013.

I did not see any of this, other than the initial arrests, reported in the news.

Texas Still Evil

Texas remains a state full of evil, twisted people who elected representatives bent on making the world a more evil and inhumane place. It is basically hell on Earth and I don't see why anyone would ever willingly live there, but apparently millions of people disagree with me on this point. 

[T]he Texas Department of State Health Services, (a place where medical evidence is given the same weight as the results of a Magic 8 ball) has approved a regulation that requires burials for ALL fetal tissue that comes from a miscarriage, ectopic pregnancy or an abortion performed at a Texas healthcare facility. 

And who benefits from this, you ask? The clinics? Nope. The Patients? Nope.
 Weirdly, the only people it would benefit are funeral directors — and wait for it — they fought hard AGAINST the regulation because it’s well... CREEPY AND UNNECESSARY AF!
When the only people who stand to gain anything think it’s a bad idea and want nothing to do with it, one would think that the issue would be laid to rest, but not this group of zealots. Their motives are not based on anything other than creating yet another insane roadblock that puts undue financial burdens on clinics so they can no longer afford to stay open.

How this will affect pregnant people?

Well, because it is intentionally sketchy in detail and the regulation was vaguely written, it could put a woman having a miscarriage at home in a position of weighing whether or not she should go to a hospital because she isn’t sure if she will have to pay for a fetus funeral, if she decides to get the medical help she needs! Again, whose dignity do you care about again? Good Lord!

Now there is some good news: This Texas buffoonery was just put on hold until January thanks to a federal judge. But then comes January...

And bad news: This is not just a Texas thing.

Similar laws in Louisiana and Indiana have also been passed and shot down in court. But that doesn’t give anti-choice lunatics a moment’s pause. They’ll keep churning out regulations like this until they find a court that will let it stand. And with President-elect Donald Trump, that court may well be the Supreme Court.

From here.

See also here, so it is clear that Texas is not consistently pro-life in the Roman Catholic sense.

8400 Posts

This is the 8400th post at Wash Park Prophet and sister blog Dispatches From Turtle Island, combined since their inception about eleven and a half years ago, an average blogging pace of about two post a day for the entire time period, although some parts of that period have obviously been more prolific than others.

The first post was made on July 3, 2005.

The Ideological Remaking Of The Republican Party

The 2016 election has been a powerful example of how partisans change their views to match the public statements of their standard bearers, instead of the other way around. Republican attitudes about a variety of issues have swung dramatically this year in the direction of President-elect Trump's public statements.

From Pew via Fully Myelinated.

This chart should be right at the top of the list of demonstrations of how powerful partisanship is and how shallow popular attachment to policy positions can be.

Two years ago, there was almost no partisan difference between Democrats and Republicans on the question of whether free trade agreements are good for the United States. 

Since then, largely due to Trump's strong anti-trade campaign, the Republican support for free trade has gone from 55-36 to 24-68, a roughly thirty percentage point swing.

This isn't by any means the only issue upon which Republicans have changed their opinions either. 

For example, in July of this year, Vladimir Putin, the President of Russia, had a net -55 percentage point favorability rating. Now, his favorability rating is a net -10. About 22.5% of Republicans have gone from having an unfavorable view of Putin to a favorable view of Putin (whom Trump has said that he admires and who supported his campaign).

From here.

Republicans are also overwhelmingly convinced that Trump's election will be a godsend for the economy, while Democrats and independents are decidedly more glum.

From here.

And, Republicans are now huge fans of the Electoral College. In 2012, 54% of Republicans wanted to abolish it. Now, that has fallen to 19% (a 35 percentage point drop).

From Gallup via this post.

Emotional Distress Damages Permitted In FLSA Retaliation Claims

This is in my inbox as part of a newsletter this morning:

5th Circ. Rules FLSA Plaintiffs Can Seek Emotional Damages 

Workers filing suit under the Fair Labor Standards Act can seek emotional damages as part of their claims, the Fifth Circuit ruled in a complex decision Monday that upheld a jury’s verdict in favor of tenants in an apartment complex who’d received discounted rent for maintenance work.

The National Law Review explains that:

On December 19, 2016, the Fifth Circuit joined the Sixth and Seventh Circuits in holding that “employees” under the FLSA may recover emotional distress damages in FLSA retaliation actions, finding that the district court erred by refusing to instruct the jury on the availability of emotional distress damages for an employee’s retaliation claim. In so holding in Pineda, et al. v. JTCH Apartments, L.L.C., et al., the Fifth Circuit did affirm the district court’s ruling that only an “employee” may bring a retaliation claim under the FLSA.

The Fair Labor Standards Act is a federal law that primarily establishes the duty under federal law of an employer to pay minimum wage and overtime to that employer's employees. But, it also establishes a cause of action for harm suffered by an employee to retaliate for exercising his or her rights under the Act under 29 U.S.C. § 215(a)(3). This states that: 

[I]t shall be unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this chapter, or has testified or is about to testify in any such proceeding, or has served or is about to serve on an industry committee[.]

Since the holding is limited to retaliation claims, it won't add emotional distress damages to the relief available for run of the mill minimum wage and overtime violations. Wage theft, since it prevents an employee from receiving even minimum wage, is also sometimes prosecuted under the Act.

U.S. Death Penalty Rarely Used And Geographically Isolated

U.S. executions are at a twenty-five year low of 20 for the year, and death sentences are at a post-1976 reinstatement low in the United States of 30. Less than 1% of U.S. counties imposed a death sentence in 2016 and two Southern states account for 80% of U.S. executions in 2016.

A new report from the Death Penalty Information Center shows the decline: In 2016, the number of executions fell to 20, a 25-year low and down from a peak of 98 in 1999. And 30 people were sentenced to death — another record low since the Supreme Court reinstated the use of the death penalty in the 1970s.

“For the first time in more than 40 years,” the report found, “no state imposed 10 or more death sentences.” 

What’s more, the death penalty is increasingly becoming geographically isolated: Just 27 counties (of more than 3,140) sentenced people to death this year, down from 60 in 2012. And Texas and Georgia alone carried out 80 percent of all executions this year.

From Vox.

Why?

The death penalty has never been terribly widely used in the U.S. Many states have abolished it entirely, the federal government has never used it widely, and the judicial process in these cases is slow and costly. Judges on appellate courts in California and some other Northern states have deliberately kept the cases moving slowly and have been skeptical of death penalty convictions.

Murder rates are down dramatically from the 1990s. Murder rates were at record lows in 2014, and many capital murder cases arising from 2015 and 2016 murders that have seen some increases in murder rates have not made their way through the court system yet. Some of the leading explanations for the decline include higher incarceration rates, the abatement of lead exposure to children decades ago, the legalization of abortion under Roe v. Wade, and the tapering off of hard line drug war law enforcement tactics.

The U.S. Supreme Court and lower courts interpreting its ruling has ruled that the death penalty procedures used in a number of U.S. states is unconstitutional, leaving many states that aren't necessarily anti-death penalty, without a death penalty law on the books.

In particular, the execution of juveniles, the execution of people for the rape of an adult, the execution of people with an IQ of less than 85, and the imposition of death penalties without a unanimous verdict of jurors who are properly instructed has invalidated many death sentences and many death penalties that have been imposed. 

The Supreme Court has also taken up cases where racial discrimination in jury selection or prosecution failures to disclose exonerating evidence (i.e. Brady violations) taint convictions, and some justices have expressed doubt about use of the death penalty at all.

Nebraska legislatively repealed its death penalty.

And, states have found it difficult to obtain lethal injection drugs.

Pro Tip For Graduate School Applicants

Chris McKitterick‏@mckitterick

Pro tip: Don't use a prof who hasn’t agreed to give you a rec. Also maybe stick with those who gave you good grades. Just sayin'. (not mine)

The tweet above amply illustrates why you should follow the advice within when asking for recommendations to graduate school (via Razib Khan's twitter feed).

Western Interstate Highway Electric Car Charging Stations Planned

The governors of Colorado, Utah and Nevada have committed to working together to build a regional electric vehicle charging network that covers more than 2,000 miles of highway across their three states. 

Targeted corridors include Interstates 70, 76 and 25 in Colorado, Interstates 70, 80 and 15 in Utah and Interstates 80 and 15 across Nevada, according to the announcement Monday.

“This initiative recognizes that our states will continue to lead the country in the electric vehicle market,” Gov. John Hickenlooper said in a statement. “Our residents and the millions of visitors to our states will be able to drive electric vehicles from Denver to Salt Lake City to Las Vegas — from the Rockies to the Pacific.” 

In Colorado, there are nearly 8,000 electric vehicles on the road today, up from fewer than 100 in 2011.

From The Denver Post.

Much of the funding will come from the Volkswagon diesel emissions test fraud settlement.

Meanwhile, an increasing share of the electrical grid is being powered by renewable energy, with Las Vegas now 100% renewable energy powered, and great strides are being made in the technology and costs of solar power, wind power and batteries for applications such as electric cars (with Nevada landing Tesla Motors big battery manufacturing plant).

A Frequently Asked Question At The U.S. Copyright Office

How do I protect my sighting of Elvis?

Yes, this is a real U.S. Copyright Office FAQ. Obviously, people ask about this a lot and it takes too much time to provide the same answer over and over again.

The official answer is below the fold.

Worth Reading

Rogue One: an "Engineering Ethics" story (many spoilers) provides a very thoughtful analysis of engineering ethics. One spoiler free blurb:

Engineering and technology can critically define how people live and who has power. Philosopher of technology Langdon Winner’s article “Do Artifacts Have Politics?” argues that technology changes the world around them, creating policies and politics that result from the inherent (at times destructive) characteristics of the technology. Yet, it is not only the technology of advanced weapons that can shape our world. Social media and increased computer devices are affecting how humans think and how we act in a democratic society. An engineer must consider not only the function of a new system, but how it will be used and the possible unintended consequences. . . .

A complementary point to Winner is to think through how we have to labor to maintain existing systems. Historians Andy Russell and Lee Vinsel have started a social movement called The Maintainers, which tries to call attention to the neglected role of maintenance in society. While the Star Wars universe has a lot of ships and cities that look like they’re in a state of dystopic disrepair, there are also many who scavenge . . . and make the most out of existing systems.. A robust discussion of engineering ethics should consider how we treat the people and technological systems that maintain the broader society.

Another important issue that engineers are particularly prone to is what linguists called nerdview, which basically means designing user interfaces from the perspective of a design in a manner that is counterproductive or futile to an actual user in need of information. Another good example is here.

Predictions For The Next Four Years

The following predictions are for the period from January 20, 2017 to January 20, 2021 (i.e. President Trump's current term of office), unless otherwise stated.

War and Peace

* U.S. defense spending increases significantly: 75%

* The number of active duty U.S. military personnel is significantly increased: 70%

* The B-3 bomber program enters production: 60%

* Russia adds territory (with or without further military actions): 40%

* The U.S. enters a new ground war: 40%

* The U.S. will return to regularly using torture: 40%

* A carrier based drone fighter aircraft enters service: 35%

* All future Littoral Combat Ship purchases are canceled: 35%

* The U.S. ends military aid for Saudi Arabia and/or Egypt: 30%

* An A-10 fighter replacement program is commenced: 30%

* The U.S. recognizes greatly increased Chinese territory in the South China Sea: 30%

* There is a conventional war in Europe: 25%

* The U.S. commits at least several thousand U.S. ground troops to fighting ISIS: 25%

* The U.S. fires upon Iranian military ships or boats in the Persian Gulf: 25%

* NATO is dissolved: 20%

* The F-35 program is canceled or dramatically reduced in units purchased: 20%

* The F-22 program is reopened: 20%

* The U.S. bombs nuclear facilities in N. Korea: 15%

* The U.S. institutes a draft: 15%

* An isolated nuclear weapon (perhaps by a N. Korea or Iran, not necessarily a major nuclear power) is used: 10%

* A genuine nuclear war: 5%.

Immigration and Trade

* Increased border controls including an expanded border wall are enacted: 85%

* Anti-refugee laws are enacted: 60%

* The U.S. and the U.K. enter into a bilateral post-Brexit trade deal: 50%

* Increased deportations: 50%

* Tougher immigration laws: 45%

* The Trans-Pacific Partnership Treaty is passed: 40%

* NAFTA is terminated: 25%

* The number of undocumented non-citizens is reduced by several million: 15%

Politics and Government

* Republicans lose control of one or both houses of Congress in the 2018 election: 40%

* Civil service and.or union protections for federal workers are greatly reduced: 15%

* Trump resigns for lack of interest: 10%

* Trump is impeached: 10%

* An anti-Trump conservative party elects or wins over at least one federal politician: 10%

* There is an attempted assassination of Trump that is a publicly known near miss: 10%

* Trump successfully abrogates the constitution: 5%

* Trump is assassinated: 5%

* Enough Republican Senators defect to the Democratic party to cause it to lose control: 5%

* The Democratic party schisms between a progressive and center-left wing: 5%

Economics

* The estate tax is reduced or eliminated: 90%

* Economic inequality increases in the U.S.: 90%

* Interest rates will increase: 90%

* Unemployment increases: 85%

* The number of uninsured Americans increases significantly: 80%

* The U.S. budget deficit grows substantially: 75%

* U.S. corporate tax rates are reduced: 75%

* Obama's new overtime regulations are scrapped: 75%

* There is a recession in the U.S.: 70%

* Section 8 housing subsidies and/or public housing expenditures are cut: 60%

* Oil prices will increase: 55%

* Social security and/or Medicare are materially cut: 55%

* Food stamps are cut: 55%

* Legal rights for private sector unions will be significantly weakened: 50%

* There is a crash by October of 2017: 35%

* Economic growth will be greater than under Obama's first term: 10%

Domestic Policy

* SCOTUS regains a conservative majority: 95%

* Environmental indicators stall or get worse: 65%

* Roe v. Wade is narrowed: 60%

* The federal government abandons efforts to protect transgender individuals: 60%

* Significant amounts of federal land is transferred to the states: 55%

* Some federal gun control legislation is repealed: 50%

* Trump replaces a Justice Kennedy or a liberal SCOTUS Justice: 45%

* The federal government cracks down in recreational marijuana: 35%

* Federal civil rights/voting rights legislation is weakened: 35%

* Roe v. Wade is overturned: 25%

* Major federal sentencing reform is enacted: 20%

* SCOTUS reverses it gay rights jurisprudence: 15%

Other

* There is a rise in U.S. hate crimes and discrimination: 90%

* There is a major first family scandal: 85%

* There is a major Trump cabinet scandal: 60%

* The plan to put a woman on U.S. currency is scraped: 55%

* Trump cronies are pardoned: 40%

Solar Energy Has Recently Gotten A Lot Cheaper

The cost of solar power has dropped by two-thirds in six years, bringing its price to less than coal and natural gas, and competitive with wind.

Solar power is becoming the world’s cheapest form of new electricity generation, data from Bloomberg New Energy Finance (BNEF) suggests. 

According to Bloomberg’s analysis, the cost of solar power in China, India, Brazil and 55 other emerging market economies has dropped to about one third of its price in 2010. This means solar now pips wind as the cheapest form of renewable energy—but is also outperforming coal and gas. 

In a note to clients this week, BNEF chairman Michael Liebreich said that solar power had entered “the era of undercutting” fossil fuels.

Bloomberg reports that 2016 has seen remarkable falls in the price of electricity from solar sources, citing a $64 per megawatt-hour contract in India at the start of the year, and a $29.10 per megawatt-hour deal struck in Chile in August—about 50% the price of electricity produced from coal. 

Ethan Zindler, head of U.S. policy analysis at BNEF, attributed much of the downward pressure to China’s massive deployment of solar, and the assistance it had provided to other countries financing their own solar projects.

From Time Magazine (online).

Median Income By State and County County and The 2016 Presidential Election

Most of Appalachia and the South have low median incomes, while much of the rural Midwest that went for Trump in the last election is comparatively affluent, as illustrated below. New Mexico is the only low median income state that chose Clinton.

Man Sentenced For Killing Denver Cab Driver

A 20-year-old man has been sentenced to 48 years in prison for the September 2015 fatal shooting of a beloved Denver taxi cab driver during a botched robbery. 

Prosecutors say the sentence was the maximum allowed for Dasean Perry under a plea agreement. In September, he admitted to second-degree murder and attempted aggravated robbery in the slaying of 49-year-old Darren Bloomquist. 

Bloomquist was driving a cab early on Sept. 5, 2015, and was dispatched to the 20000 block of E. Mitchell Place. The Denver District Attorney’s Office says when he arrived, Bloomquist was shot and killed during an attempted robbery. 

The sentence was handed down Thursday in Denver District Court, prosecutors say. Perry had just turned 19 when the shooting happened.

From here. 

Many of my relatives share a surname with the cab driver, although some limited inquiries that I've made suggest that he was not a close relative (my relatives adopted this new surname upon moving to America, because their's sounded bad in English, so this isn't surprising).

The offender won't be eligible for parole for about 36 years if he has perfect good behavior during his term, which he probably won't be able to manage.

It is a pretty typical result for a pretty typical murder case. Given the attempted robbery charge, prosecutors could have charged first degree felony murder which would have carried a sentence of life in prison or death, but no doubt used that leverage to secure a plea agreement that gave the defendant some chance at release from prison before his death and avoided the death penalty.

Delaware Temporarily Without Death Row Inmates Or Death Penalty

The Delaware's state Supreme Court earlier on declared its death penalty unconstitutional in a death penalty appeal for procedural reasons. Yesterday, it declared that its decision was retroactive causing the death sentences of the other 11 people on its death row to be converted to life imprisonment sentences. 

Delaware will not have a death penalty until the state legislature enacts a new, procedurally compliant statute, if it wishes to do so, and will not have anyone on death row until someone is convicted pursuant to that newly enacted statute.

Why Are People Religious?

Why and how are people religious?

1. If people are religious, they usually adopt the religion that is dominant in their family or community. A person inclined to be religious in Turkey is unlikely to become a Hindu or Buddhist. A person inclined to be religious in Savannah, Georgia is unlikely to take up Orthodox Christianity. In each case that would change if family members were part of one of those faiths. Usually, a person has a religious identity chosen by a parent before that person is old enough to make a conscious choice.

2. Some people are genetically more inclined to be religious in some religion than others, and in general, women are more inclined to be religious in some religion than men.

3. Religions thrive when they are preserving a threatened culture, while they wither when they merely reinforce a secure establishment culture. 

Hence, the Roman Catholic church thrived in Ireland because it preserved Irish culture against Protestant colonial overlords. The white Evangelical Christian religious movement thrives because it protects a threatened white Southern culture that was defeated in the U.S. Civil War. Black churches in the North, and immigrant churches generally, thrive because they preserve the culture of the place of origin of the migrants.

In contrast, the established churches across Europe, and mainline Protestant churches in the U.S. have seen active involvement collapse because the values espoused and culture associated with these respective churches is the secure establishment culture of the places where they are practiced. Immigrant churches start to wither and consolidate after a few generations as the culture of the descendants of the immigrants is assimilated into the establishment culture.

4. Religion, and superstition more generally, thrives when people's well being depends upon seemingly random forces that they can't control and don't fully understand. This is called the "uncertainty hypothesis" in the literature.

Among people prone to religion and superstition are farmers dependent for their livelihood upon the weather, people at risk of contagious disease they don't understand, auditioning actors, gamblers, and refugees.

People abandon religion and superstition when they feel secure and understand the forces that can impact their lives, if they have access to information that allows them to understand. People take up religion when they are insecure.

Coffee v. Expresso

An ounce—or one shot—of espresso has 63 milligrams (mg) of caffeine, according to nutritional information from the U.S. Department of Agriculture. By comparison, regular coffee averages 12-16 mg of caffeine per ounce. 

So, yes, espresso technically has more caffeine, but in practice no one drinks just one ounce of coffee. You’re likely to have at least 8 ounces, which typically has 95 to 128 mg of caffeine. 

However, caffeine counts for both espresso and coffee vary among brands and depend on the type of bean, the roast, the amount of coffee used, and the way it is prepared (brewed, French press, espresso machine, etc.) For example, at Starbucks, a shot of espresso has 75 mg of caffeine and an 8-ounce cup of its Pike Place medium roast coffee has 155 mg.

From Consumer Reports.

A standard medium sized latte has two shots of expresso, which is about 126 mg of caffeine. So, regular coffee and expresso are actually about the same in typically consumed dosages.

Remembering Mrs. Wozniak

Call it an early airing of grievances.

Many of my current bad habits, I owe to my absolutely horrid 5th grade teacher at Kramer Elementary School in Oxford, Ohio, Mrs. Wozniak.

She was the one whose endless rote sentence combining exercises developed my life long habit of writing run on sentences.

She was the one whose insistence on trying to fit answers in workbook spaces did irreparable harm to my handwriting and caused my stutter that lasted until I learned to type everything to get much worse.

She was the one who taught prescriptivist grammar rules that stunted the quality of my writing style until I took legal writing classes to overcome them long after I graduated from law school.

She was the one whose demeaning treatment of students in the classroom forever branded me as a geek and nerd with negative social consequences until I got went abroad six years later. Partially because of the social forces she set in place, I ended up spending most of recess in the sixth grade in the classroom reading the dictionary instead of socializing with other kids.

No other teacher I had from kindergarten to law school was so small minded, ignorant, and soul killing.

She dented my curiosity and joy of learning in a way that it took until roughly 10th grade to get back.

She really was a horrible teacher and a horrible human being whose teaching made me and my classmates worse people then we were when we entered her classroom.

Realistically, she's probably dead now, and after thirty-five years or so, what's happened has happened. 

But, if she is out there, Mrs. Wozniak really ought to realize how much harm she did to her students during her far too long days as a teacher and feel absolute guilt and despair at negative value that her existence imposed on her community in Oxford, Ohio. We recognize people who make outstanding contributions to their community, but in truth, there are people like her who single handedly drag the community down and make it worse place for everyone. I'm sure that she was just as much of a blight in other aspects of her life in the community and to her family.

Omar Khadr Was Released On Bail Last Year

In 2007, I recounted the plight of Omar Khadr, a Guantanamo detainee who was fifteen when he ended up in the military prison charged with offenses taking place as early as when he was ten years old, who had been detained for five years at the time. 

He pleaded guilty to war crimes before a U.S. military tribunal in October of 2010. Five years later, in 2012, after ten years at Gitmo, he was transferred to a Canadian prison. He was released on bail pending an appeal in the U.S. Courts in May of 2015. Per Wikipedia, linked above:

He was the youngest prisoner and last Western citizen to be held by the United States at Guantanamo Bay. He accepted an eight-year sentence, not including time served, with the possibility of a transfer to Canada after at least one year to serve the remainder of the sentence. Khadr was the first person since World War II to be prosecuted in a military commission for war crimes committed while still a minor. His conviction and sentence were widely denounced by civil rights groups and various newspaper editorials. His prosecution and imprisonment was condemned by the United Nations, which has taken up the issue of child soldiers. 

On September 29, 2012, Khadr was repatriated to Canada to serve the remainder of his sentence in Canadian custody. He was initially assigned to a maximum-security prison but moved to a medium-security prison in 2014. Khadr was released on bail in May 2015 (pending an appeal of his U.S. conviction) after the Alberta Court of Appeal refused to block his release as had been requested by the Canadian government. 

In 2013, Khadr filed a C$20,000,000 amended civil suit against the government of Canada for conspiring with the U.S. in abusing his rights. He said he had signed the plea agreement because he believed it was the only way he could gain transfer from Guantanamo, and claimed that he had no memory of the firefight in which he was wounded. Khadr's lawyers successfully challenged his incarceration in Canada as an adult offender. On May 14, 2015, the Supreme Court of Canada rejected the federal government's position, ruling that Khadr had clearly been sentenced by the U.S. military tribunal as a minor. If he loses his appeal of the US conviction, underway in a separate action, he would serve any remaining time in a provincial facility rather than in a federal penitentiary.

He has served 4 years and 7 months of his eight year sentence, and apparently receives no credit for the eight years of time served he had at the time.

Sixteen years in prison for being a child soldier is absurd.

Blame Canada!

French Canadian oligarchs are sweet.

Americans are focused on the wrong border. It’s not Mexico, with all this dubious talk about building a wall, but Canada, with its Mounties, and comedy writers who move among us, betrayed only by the occasional mispronunciation of “about,” that threatens our way of life. If this nation was not founded on the free flow of syrup, it should have been. And now, as anyone with kids can tell you, the price of syrup has remained stable and high; it’s more expensive than oil. Is it Arab sheikhs who did this, Russian oligarchs? No. It’s Canadians, who, organized into an ironfisted cartel, have established a stranglehold on that honey-flavored elixir. 

In short, FPAQ—the Federation of Quebec Maple Syrup Producers—is OPEC. Formed in 1966, the federation was tasked with taking a business in which few could make a decent living—the price went north to south with the quality of the yield, which went north to south with the quality of the spring—and turning it into a respectable trade. This was accomplished in the classic way: quotas, rules. You control supply, you control price. You limit supply, you raise price. Because Quebec makes 72 percent of the world’s maple syrup, it’s been able to set the price. As of this writing, the commodity is valued at just over $1,300 a barrel, 26 times more expensive than crude. . . . I discovered this for myself on a recent trip to the supermarket. My son returned from the shelves with a small artisanal jug of Canadian syrup—“genuine maple” has prospered in concert with the boom in organic food—which cost . . . $15! It shocked me. I stormed up the aisle to see for myself, where I discovered Aunt Jemima, companion of so many Sunday mornings, in her babushka, costing just four bucks for a family-size jug. When I asked the cashier to explain this discrepancy, she pointed rudely at Aunt Jemima and said, “ ‘Cause that’s not real syrup.”

From Vanity Fair.

Insider Trading Liability Broadened

Last week, prosecutors rejoiced when the U.S. Supreme Court decided an insider-trading case called Salman v. United States, and in doing so clarified that leaking confidential information so that friends and relatives can make money in the stock market is a crime, even when the leaker doesn’t get an economic benefit.

From The New Yorker with local color related to the jurisprudence of the trial judge whose legal theory was adopted.

The decision was, however, quite a narrow one.

More Contagious Cancer

Another instance of cancer caused by a virus has been identified. Cancer causing viruses were already known to account for about one in eight cancer cases.

Newborns with congenital cytomegalovirus -- a common virus in the herpes family -- may have an increased risk of developing acute lymphocytic leukemia, according to new research. The study suggests the risk is even greater in Hispanic children.

From here.

This is the second kind of herpes virus known to cause cancer.

What Criminal Court Authority Do Non-Lawyer Judges Have?

Though it may seem surprising that judges in all of America’s courts do not necessarily need to be lawyers, the practice is fairly common. Thirty-one states have some courts where judges do not have to be a lawyer. In nine of these states that allow non-lawyer judges, along with the 19 states and the District of Columbia that require all judges to be a lawyer, the non-lawyer judges are banned from taking a defendant’s liberty in a criminal proceeding.

The remaining 22 states, primarily for reasons of cost efficiency or to facilitate justice in more rural jurisdictions, have non-lawyer judges preside over misdemeanors or ordinances that carry jail time as a possible punishment. But even among those states, 14 of them give the defendant the right to have a trial de novo on appeal – basically a whole new trial – before a judge who is a lawyer. That leaves the eight states — Arizona, Colorado, Montana, Nevada, New York, South Carolina, Texas, and Wyoming — where a defendant can stand trial before a non-lawyer judge on a jailable offense, and if he is convicted and sentenced to jail, his only recourse is to appeal to a higher court with a judge who is a lawyer. But that appeal is based solely on whatever record was made in the non-lawyer court; he does not get a new trial.

As explained in the Montana cert petition, “In North v. Russell, 427 U.S. 328 (1976), the Court held that the Due Process Clause permits a criminal defendant facing the possibility of incarceration to be tried by a non-lawyer judge — so long as the defendant has the right to a de novo trial before a judge who is a lawyer.” But the U.S. Supreme Court has never decided whether it is okay for a defendant to be tried by a non-lawyer judge where a state does not give the defendant a new trial on the appeal to a court whose judge is a lawyer. And that is the issue that the Montana lawyers are seeking to have the U.S. Supreme Court decide.

From here.

The body of the certiorari petition further explains that:

Today, no state allows non-lawyer judges to try felony cases. Of the 22 states that allow non-lawyer judges to try misdemeanors that can result in imprisonment, most give the defendant the right to a de novo trial before a judge who is a lawyer. There are only eight states that still allow non-lawyer judges to try such misdemeanor cases without giving the defendant an opportunity for a de novo trial before a judge who is a lawyer. In five of these eight states (Colorado, Montana, Nevada, New York, and Texas), nonlawyer judges have this power only in certain counties. In two (Arizona and Montana), non-lawyer judges have this power only for misdemeanors punishable by six months imprisonment or less, and in one (South Carolina) they have this power only for 9 misdemeanors punishable by thirty days imprisonment or less.

The scope of the challenge in this case is narrow:

The issue is narrow, however, in two senses. 

First, the practice we are challenging represents only a tiny slice of the work of non-lawyer judges. The Due Process Clause does not bar non-lawyer judges from doing all the other things they do—trying traffic violations and other minor criminal matters that do not entail incarceration, presiding over small civil cases, conducting preliminary hearings, issuing warrants, performing marriages, and so on. Nor does the Due Process Clause bar non-lawyer judges from trying, in the first instance, misdemeanor cases punishable by incarceration, so long as the defendant may obtain a de novo trial before a judge who is a lawyer. Nonlawyer judges still have important roles to play in the states’ legal systems. 

Second, the practice we are challenging survives only in three states and parts of five others. All the other states guarantee defendants facing incarceration a trial before a judge who is a lawyer. So did Montana, for more than a century. In these states, moreover, it is likely that, as in Montana, some of the judicial positions not required by statute to be staffed by lawyers are nevertheless currently occupied by lawyers. If the Court holds that due process in these cases requires a judge who is a lawyer, the Court’s decision would require only a modest change to current practice.  

The impact of the case in Colorado would be pretty minimal. 

There were only four non-lawyer judges in Colorado the last time I checked, each serving in a county court (whose jurisdiction is limited to misdemeanors and arraignments), in rural counties. All of them are selected on a merit basis, are at least college educated and receive meaningful judicial education. And, a slight tweak to the nature of the appeal right in the very small percentage of criminal cases that do not result in a plea bargain before these four judges, to make the arrangement constitutional, would be a straightforward step for the Colorado General Assembly to take.

Notably, municipal court judges in Colorado, while arguably further down the judicial hierarchy than county court judges, must generally be lawyers.

In Montana, the state at issue, there are seven non-lawyer judges in courts of record whose decisions are not appealed with trials de novo out of eleven judges in the eight of 56 Montana counties that have made their "justice courts" into courts of record that are not appealed de novo (something that did not exist from 1895 to 2003 in Montana). As of 2011, city courts were allowed to follow suit in Montana and five cities created city courts of record, each with a single non-lawyer judge.

Both cases brought before the U.S. Supreme Court from Montana that are at issue here were tried before one Park County non-lawyer judge:

The judge in both trials was Park County’s elected Justice of the Peace, Linda Budeski. Justice Budeski is not a lawyer. According to her campaign materials, before becoming a judge she spent 24 years as a cashier and meat wrapper at a grocery store, and six years as a prevention specialist for a chemical dependency program. Re Elect Linda Budeski for Justice of the Peace (http://goo.gl/yz4BX6). 

Montana requires Justice Budeski, like others in her position, to attend two kinds of training sessions. First, every four years, after each election, justices of the peace must complete a four-day “certification” course, where they receive training in some of the fields they will encounter on the bench. These topics range from introductory matters like “The Basics of Law” and “Judicial Demeanor” to more specialized areas like Courts and Jurisdiction, Constitutional Law, Initial Appearances, Evidence, Search and Seizure, Landlord-Tenant Law, Criminal Procedure, Orders of Protection, Civil Procedure, Traffic Law, Legal Research, Court Financial and Docket Management, Small Claims, Youth Offenders, and Contracts. Second, justices of the peace must attend two annual continuing education sessions. Mont. Code § 3-10-203(2). These sessions must provide a total of at least fifteen hours of training per year. Montana Judicial Branch, Judicial Education (http://courts.mt.gov/cao/ct_services/jud_ed). 

Montana’s non-lawyer justices of the peace thus begin their careers after a four-day training course consisting of approximately 28 hours of study. To put that in perspective, one cannot become a manicurist in Montana without at least 400 hours of study. Mont. Admin. R. 24.121.601(3)(e)(ii). To become a barber in Montana requires at least 1,500 hours of study. Mont. Code § 37-31-304(2)(a)(ii). Montanans wishing to practice cosmetology need 2,000 hours of study. Id. § 37-31-304(3)(a). That is 71 times as much training as it takes to become a justice of the peace and sentence defendants to incarceration. 

The situation is much more serious in New York, where non-lawyer judges are elected, rather than selected on a merit basis, there are far more non-lawyer judges, and there is a long history of troubling conduct by non-lawyer judges in criminal cases in the state.

I'm not familiar enough with the situation in the other six states to know what impact it would have.

Of course, the U.S. Supreme Court isn't required to take the case, and the outcome of the case if it did take it to resolve this basis issue of constitutional law is unclear.

A Footnote On The Gentry

The Montana cert petition linked above makes an interesting observation that in English law, Justices of the Peace had to be members of the gentry which Wikipedia explains in the British context as follows:

The British upper classes consist of two sometimes overlapping entities, the peerage and landed gentry; any male member of either may regard himself as a gentleman, in a special sense mutually understood between hereditary members of the class, which will often exclude life peers. In the British peerage, only the senior family member (typically the eldest son) inherits a substantive title (duke, marquess, earl, viscount, baron); these are referred to as peers or lords. The rest of the nobility are referred to as landed gentry (abbreviated "gentry"). Except for the eldest sons of peers, who bear their fathers' inferior titles as 'courtesy titles' but for Parliamentary purposes counted as commoners, they usually bear no titles apart from the qualifications of esquire or gentleman (which are ranks recognised in law, although now without any legal consequence); exceptions include the baronet (a title corresponding to a hereditary knighthood), those that are knighted (for life, called Sir X Y), Scottish barons (who bear the designation Baron of X after their name),[17] and Scottish lairds (whose names include a description of their lands in the form of a territorial designation).[18] 

The term landed gentry, although originally used to mean nobility, came to be used for the lesser nobility in England around 1540. Once identical, these terms eventually became complementary. The term gentry by itself as commonly used by historians, according to Peter Coss, is a construct applied loosely to rather different societies. Any particular model may not fit a specific society, yet a single definition nevertheless remains desirable.[19][20] Titles, while often considered central to the upper class, are not strictly so. Both Captain Mark Phillips and Vice Admiral Sir Timothy Laurence, the respective first and second husbands of HRH Princess Anne, lacked any rank of peerage at the time of their marriage to Princess Anne. However, the backgrounds of both men were considered to be essentially patrician, and they were thus deemed suitable husbands for a princess. 

Landed gentry is a traditional British social class consisting of gentlemen in the original sense; that is, those who owned land in the form of country estates to such an extent that they were not required to actively work, except in an administrative capacity on their own lands. The estates were often (but not always) made up of tenanted farms, in which case the gentleman could live entirely off rent income. 

Esquire (abbreviated Esq.) is a term of British origin, referring only to males, and used to denote a high but indeterminate social status. The most common occurrence of term Esquire today is the conferral as the suffix Esq. in order to pay an informal compliment to a male recipient by way of implying gentle birth. In the post-mediaeval world, the title of esquire came to belong to all men of the higher landed gentry; an esquire ranked socially above a gentleman but below a knight. In the modern world, where all men are assumed to be gentlemen, the term has often been extended (albeit only in very formal writing) to all men without any higher title. It is used post-nominally, usually in abbreviated form (for example, "Thomas Smith, Esq."). 

A knight can be either a mediaeval tenant giving military service as a mounted man-at-arms to a feudal landholder, or a mediaeval gentleman-soldier, usually high-born, raised by a sovereign to privileged military status after training as a page and squire (for a contemporary reference, see British honours system). In formal protocol, Sir is the correct styling for a knight or a baronet, used with (one of) the knight's given name(s) or full name, but not with the surname alone. The equivalent for a woman who holds the title in her own right is Dame; for such women, the title Dame is used as Sir for a man, never before the surname on its own. This usage was devised in 1917, derived from the practice, up to the 17th century (and still also in legal proceedings), for the wife of a knight. The wife of a knight or baronet is now styled "Lady [Surname]".

Membership in the gentry was originally pre-requisite to the honorific "Gentleman", a term that like the honorific "Sir" originally confined to knights, has been inflated to have almost general application. Alexander Hamilton, the claimed grandson of a Scottish laird after whom he was named, would have had a birthright to membership in this class had his birth not been illegitimate (and his paternity not entirely certain, another biological father has been suggested). 

The term "Landlord" derives from this historical class elevation of the gentry, and often when someone owned much of the land somewhere, it was expedient to give that person not just the legal authority of a property owner, but also the sovereign authority of a Justice of the Peace, to handle minor civil disputes and criminal matters.