Saturday, September 26, 2009
Justin D. Levinson (pictured, University of Hawaii at Manoa -William S. Richardson School of Law), Huajian Cai and Danielle Young (University of Hawai`i at Manoa Dept. of Psychology) have posted Guilty by Implicit Racial Bias: The Guilty/Not Guilty Implicit Association Test (Ohio State Journal of Criminal Law, Forthcoming) on SSRN. Here is the abstract:
For many legal scholars, startling scientific evidence of implicit racial bias, including the now famous Implicit Association Test (IAT), have revealed a truth about racial discrimination in America that had previously been difficult to prove. Yet despite commentators’ progress in considering how the law should respond to this new evidence of racial bias, two challenges have continued to limit legal scholarship on implicit bias from achieving its full potential. First, empirical social science on implicit bias has rarely focused on the law. For example, prior to the study presented in this article, no IATs had been designed specifically to test law-related hypotheses. And second, legal scholarship on implicit bias has tended to maintain a narrow substantive focus, often considering discrimination in the workplace and in policy-making, but rarely considering racial biases in other areas of law. The question, for example, of whether jury verdicts in criminal trials are tainted by implicit racial biases has yet to be considered adequately.
This Article considers the growth potential for legal scholarship on implicit bias, and presents a new law-related IAT that the authors devised - the Guilty/Not Guilty IAT. The authors designed this study both to address the challenges legal scholarship on implicit bias has faced, and to create a test that would investigate the racial disparities that continue to plague the American criminal justice system. The study used well established IAT methodology to test whether people harbor implicit associations between African American men and criminal law guilty verdicts. The Guilty/Not Guilty IAT asked study participants to group together photos of Black and White men with words representing the verdicts Guilty and Not Guilty, and measured their reaction times in milliseconds. The results of the study are concerning: study participants held strong implicit associations between Black men and guilty verdicts (as measured by well accepted IAT calculation methods). In addition, these results proved to be quite meaningful in predicting decision-making. Scores on the Guilty/Not Guilty IAT predicted how participants evaluated evidence. The authors consider the study results in light of the presumed racial fairness underlying the presumption of innocence, and call for a broader, empirically based exploration of implicit racial bias in the legal system.
Friday, September 25, 2009
Maybe Matthew and Laura Eaton thought the feds had better things to do than watch talk TV. But now, they are learning their lesson the hard way. Findlaw has a story, entitled Dr. Phil, Shoplifting Confessions & Federal Charges, documenting the federal charges for "e-fencing" filed against the married couple who confessed on the Dr. Phil show to shoplifting and then selling the goods on eBay.
"New state secrets policy is first step towards legislation to check executive discretion in blocking litigation"
This article details the findings from legal and empirical research conducted by the author pursuant to a grant from the California Commission on the Fair Administration of Justice to investigate the causes of ineffective assistance of counsel (IAC). Over 2,500 appellate decisions were examined to determine the types and frequency of attorney errors. In addition, data from 76% of California’s 58 counties was obtained from written questionnaires answered by criminal justice participants. These actors included judges, institutional public defenders, contract defenders, assigned counsel administrators and certified criminal defense specialists in private practice in California.
The most frequent deficiency in attorney performance was the failure to conduct an adequate investigation with respect to guilt or innocence. Contributing to this and other IAC failures, however, were systemic factors that obstructed effective representation and a glaring disparity between funding for the prosecution and indigent defense system in most California counties.
A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?
The answers to these questions are interconnected: they turn on the fact that racial profiling is just another form of statistical discrimination and that, today, we all embrace statistical discrimination as efficient and justified whenever there are group-based differences in behavior or fact disparities. We have all become, today, statistical discriminators.
Thursday, September 24, 2009
The Stanford Criminal Justice Center (SCJC) recently completed a series of Executive Sessions with state and local officials about integrated criminal justice in California, exploring the ways in which the hundreds of disparate criminal justice agencies across the state might share information and coordinate activity, cooperating across jurisdictional and agency lines to promote common public safety goals. An integrated criminal justice system, one where information is readily available to agencies when they need it, has several potential advantages: it can promote more efficient use of resources by avoiding duplication of effort; provide greater transparency to policymakers, regulatory agencies, and the public; and produce the evidence necessary to illustrate ways in which existing policies can be improved.
While integration is a crucial part of the future of criminal justice, integration itself is an increasingly important issue in its own right, particularly as governments tackle complex problems that do not confine themselves to particular geographic or jurisdictional areas (e.g. environmental pollution). As with criminal justice, tackling these problems also requires massive amounts of information and inter-agency and inter-jurisdictional coordination. Some lessons from the integrated criminal justice context might be relevant here: the importance of agreeing on common metrics, the challenge of getting individual agencies to think about how their information and interventions might be reused, and the importance of ensuring that any proposed changes take ordinary business practices into account. Integrated criminal justice can, at a minimum, illustrate the issues that are likely to arise.
Attempt by Omission in the Iowa Law Review (vol. 94, p. 1208). Here is the abstract:
In addition to requiring subjective culpability, criminal offenses typically involve two objective features: action and harm. In the paradigmatic case, both features are present, but criminal law also allows for liability where either of them is absent. Rules governing omission liability enable punishment where the offender performs no act, while rules defining inchoate crimes (such as attempt) impose liability where the offender causes no harm. In different ways, these two sets of rules establish the minimum threshold of objective conduct—to use the classic term, the minimum actus reus—required for criminal liability.
The absolute floor for a criminal actus reus, then, would be defined by the intersection of these two sets of rules. The prospect of liability for “inchoate omissions”—involving no act and no harm—exists at the frontier of the state’s authority to criminalize conduct and, whether allowed or rejected, effectively determines the outer boundaries of that authority. Accordingly, inchoate-omission liability raises fundamental issues about the nature and proper scope of criminal law.
This Article considers those issues, asking whether criminal punishment for harmless inaction is legally possible, empirically observable, or normatively desirable and, perhaps surprisingly, answering all three of these questions in the affirmative. However unlikely or dubious the legal math may seem, it turns out that zero action plus zero harm can, does, and sometimes should add up to a crime.
I found the piece especially interesting in its comparison of the relative costs and benefits of relying on either general attempt provisions or more narrowly tailored provisions specific to particular kinds of omissions.
Wednesday, September 23, 2009
California Appellate Report, in which he asks an interesting question--is this guy really better off living in Oakland? The district court judge anticipated this argument but thought that even a little distance between the defendant and his former gang would be worthwhile. The Ninth Circuit's opinion upholding the condition is here.
"Does the Wrongful Issuance of an Arrest Warrant Violate a Person's Fourth Amendment Rights if the Warrant is Never Executed?"
In Maryland v. Craig, the Supreme Court approved shielding child abuse victim-witnesses from the presence of the defendant while the witnesses testified. The genesis for shielding laws was social science evidence demonstrating trauma to child sex abuse victims who, while testifying, confronted defendants. Because the Supreme Court to date has declined to consider the scope of applicability of Craig, the current legal landscape of shielding rules suffers from a lack of uniformity on the breadth of applicability of shielding. Consequently, if a juvenile witness does not fall within the class of witnesses protected by a shielding statute, then the witness may be forced to testify in the defendant’s presence and without being shielded. Such an event may traumatize the child, just as it might a child sexual abuse victim-witness. This Article contends that Craig should be interpreted to extend to all juvenile witnesses regardless of age, nature of the case, or relationship of the child to the case as victim or witness. The Court’s rationale in Craig is sufficiently broad to warrant extension of shielding to all juveniles in any case, yet narrow enough to avoid eviscerating the right of confrontation. To implement the changes argued for herein, the Article recommends that legislatures adopt the Uniform Child Witness Testimony by Alternative Methods Act with one essential change: revise the Act’s age limit from thirteen years of age to eighteen years of age.
The government’s use of children as informants in America’s 'wars' on drugs, crime, and gangs is little recognized and rarely discussed by scholars, policymakers, and the public. As with many governmental practices, only notorious instances make headlines, such as when a child is killed in retaliation for informing. Because public attention rarely is focused on the practice, it has not generated consistent documentation of, regulation of, or accountability for such use of child informants. As a starting point for discussion, this article illuminates the experiences of child informants, describing a facet of the snitching institution that generally operates under the radar. The article then considers the government’s use of child informants in light of its historical child protection function and its contemporary war-like stance regarding the domestic social problems of drugs, crime, and gangs. The article posits that the government’s use of child informants creates discord between the doctrine of parens patriae, which is aimed at protecting children, and the exercise of police power to further public safety. Further, the article observes that the substantial harms posed to child informants are viewed as collateral and bearable consequences in light of the valuable information obtained from child informants. In conclusion, the article asserts that the use of children as informants should be a closely-monitored and limited investigative method and delineates prophylactic measures restricting their use.
The L.A. Times has the story, headlined Arrested in O.C.? A DNA sample could buy freedom. Here's the lead:
Orange County, which already has one of the nation's most aggressive programs for taking DNA samples from convicts, has quietly begun offering a deal to some people who have only been arrested: give a DNA sample and have your charges dropped.
The district attorney's office, which runs its own database, has started expanding its program by handling some cases "informally," Orange County Dist. Atty. Tony Rackauckas told the Board of Supervisors this week. In those cases, if a person who has been arrested agrees to give a DNA sample, "we would not even file" charges.
The story also addresses a wide range of objections to the program, from law enforcement agencies that want prosecutions to civil libertarians who find the program coercive.
Pat O'Malley (University of Sydney, Faculty of Law) has posted Theorizing Fines (Punishment and Society, Vol. 11, No. 1, 2009) on SSRN. It documents the difference in the use of fines in the U.S. and in Europe and traces that difference to the previous dominance of the rehabilitative perspective in U.S. thought and the perceived weakness of fines as a means to achieve rehabilitation. It also critiques a Marxist take on when and where one might expect to see fines employed. All in all, an interesting read.
Here is the abstract:
Given their central place as a sanction in criminal justice, the virtual absence of a theoretical literature on them is a serious deficit. The paper reviews the principal contributions to date, and argues that they suffer from a misleading conviction that sanctions are driven by production relations. To begin with, this seriously underestimates the impact of penal discourses and practice, which can better account for variations in the rise, uneven distribution and recent decline in fines' dominance as a punishment. Equally important is the failure to consider the nexus between the rise of the modern regulatory fine (for example 'on the spot' fines) and the rise of consumer societies.
Tuesday, September 22, 2009
In light of the financial meltdown of 2008, it is reasonable to question whether the prior decade’s emphasis on corporate compliance - the internal programs that corporations adopt in order to educate employees, improve ethical norms, and detect and prevent violations of law - has been fruitful. This Article contends that the key problem with compliance is that we regulate it through an adversarial system that pits federal prosecutors against corporate defense counsel, fueling distrust between corporate entities and the government, and between the corporate employees and the internal monitors tasked with ensuring compliance. Despite this adversarial atmosphere, a number of scholars have suggested that corporate compliance is an example of a more collaborative regulatory approach known as “New Governance.” This Article challenges that notion, arguing that the government’s adversarial stance all but eliminates the experimental and collaborative approach championed by the New Governance movement. The Article further concludes that a New Governance model of compliance regulation is unlikely to take hold. Nevertheless, policymakers should consider New Governance’s administrative stance in lieu of the more punitive, “war-driven” approach that adjudication usually encourages.