Thursday, October 11, 2018
Ying Hu has posted Robot Criminal Liability Revisited (Dangerous Ideas in Law, Jin Soo Yoon, Sang Hoon Han, and Seong Jo Ahn (eds.), Chapter 26, 494-509 (South Korea: Bobmunsa, 2018)) on SSRN. Here is the abstract:
Imagine the following scenario. A robot doctor is equipped with complex algorithms that weigh the costs and benefits of each medical procedure in order to maximize the benefit of its patients. One day, the doctor deliberately withholds resuscitation from a dying patient, John, against his and his family’s wishes. The robot doctor reasons, if it resuscitates John as requested, there is only a 0.1% chance that he might live for another week. In the meantime, John has to endure a tremendous amount of pain and suffering. On the other hand, if John dies, his organs can be harvested to save the lives of at least three people. On balance, the robot doctor concludes, the benefits of withholding treatment outweighs the costs. John’s family are infuriated by the robot doctor’s inaction. But do they have any grounds for accusing the doctor of criminal negligence or even murder?
In theory, at least, many subscribe to the belief that it is better to let 10 or 100 guilty persons go free rather than convict an innocent person. Indeed, the American criminal justice system provides criminal defendants a panoply of important rights, including the right to effective assistance of counsel, in large part to ensure that the innocent are not convicted of crimes that they did not commit. But defense counsel is there not only to protect the innocent, but also to ensure that, if the defendant is found guilty after trial or if the defendant pleads guilty before trial, he or she will receive a fair sentence.
In practice, however, too many criminal defendants receive lackluster representation, and few ever actually exercise their right to trial. Instead, our current criminal justice system is plea-bargain-driven, and the vast majority of state and federal criminal offenders plead guilty—approximately 97% of federal cases and 94% of state cases are resolved by guilty pleas rather than trials. Commenting on the prevalence of negotiated guilty pleas, the U.S. Supreme Court has stated that “plea bargaining is . . . not some adjunct to the criminal justice system; it is the criminal justice system.”
Wednesday, October 10, 2018
Note how the calls for individualized consideration switch on and off depending on which way the default rule falls. In capital sentencing, sentencing of juveniles, and transfer of juveniles to adult court, we are first told that consideration of individual circumstances is essential to justice -- when the alternative is the harsher option -- and then we are told that a bright-line rule is essential when that line is drawn on the more lenient side.
Both via the NACDL news scan:
- Pa.’s unequal public defender system: Pennsylvania is the only state that does not provide state funding or oversight for its public defense system, leaving the job to its 67 different counties. Today, we’ll explore the effects that this has when it comes to citizens getting adequate representation in court as required by The Constitution. Also, we’ll explore how this funding method affects the politics of the state.
- Indiana Public Defender Commission pushing for reforms to improve public defense resources: A state agency that helps fund public defense attorneys in Indiana and sets best practice standards plans to push state legislators for policy reforms they say will help protect defendants’ constitutional rights.
Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory—the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.
Police, prosecutors, judges, and other criminal justice actors increasingly use algorithmic risk assessment to estimate the likelihood that a person will commit future crime. As many scholars have noted, these algorithms tend to have disparate racial impact. In response, critics advocate three strategies of resistance: (1) the exclusion of input factors that correlate closely with race, (2) adjustments to algorithmic design to equalize predictions across racial lines, and (3) rejection of algorithmic methods altogether.
This Article’s central claim is that these strategies are at best superficial and at worst counterproductive, because the source of racial inequality in risk assessment lies neither in the input data, nor in a particular algorithm, nor in algorithmic methodology. The deep problem is the nature of prediction itself.
Tuesday, October 9, 2018
Eugene Volokh has this post at The Volokh Conspiracy, excerpting an interesting case from Minnesota. In part:
Self-described "sugar baby" Shawdy Kiani initiated a four-month sexual relationship with "sugar daddy" John Huha, exchanging "companionship" for lavishments. Kiani spurned Huha's attempt to elevate the arrangement into a real romance, and the relationship ended.
When Huha refused to remove from his social-media page photographs of Kiani and Huha as a couple and an image of Kiani's text message describing herself as his "prostitute," Kiani moved for a harassment restraining order claiming that she had been too intoxicated to consent and was therefore sexually assaulted during their first sexual rendezvous. The district court rejected Kiani's sexual-assault claim as incredible and only partially granted her motion.
From WTIF, via the NACDL news scan. In part:
The participatory defense program, which meets weekly, teaches people how to present themselves as a whole person, by, among other things, tapping the resources of the community of people who know the defendant as more than a criminal.
That package includes training defendants about the facts of their case; teaching them how to write a biography; obtaining letters of support; and identifying friends and loved ones who will vouch for them in court.
Philadelphia Chief Defender Keir Bradford-Grey says she had to get creative to do battle with the better-resourced district attorney's office.
Monday, October 8, 2018
"First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history"
Doug Berman has this post at Sentencing Law & Policy:
A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act. The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. Stitt.
From Ars Technica, via the NACDL news scan:
We concocted a scenario in which an American iPhone XS owner was crossing into the United States at an international airport from abroad. She gets taken aside for secondary screening. Her phone is confiscated. Under questioning across a table, an aggressive agent holds up the iPhone XS in front of her.
"Is this your phone?" the agent asks, facing the screen toward her. She looks directly at the screen, and, as Face ID is enabled, the phone unlocks—even though the traveler is sitting a few feet away and hasn’t touched her phone since it was seized. The agent then swipes up to reach the home screen and has access to most of the personal data on her phone. (In short, basically everything except Apply Pay or Keychain password data. That would require a second Face ID unlock or the passcode.)
A paper on mass public shootings by Adam Lankford (2016) has received massive national and international media attention, getting coverage in the New York Times, the Wall Street Journal, plus hundreds of other news outlets spanning at least 35 different countries. Lankford’s claim was that over the 47 years from 1966 to 2012, an enormous amount of the world’s mass public shooters -- 31% -- occurred in the United States. Lankford attributed this to America’s gun ownership.
Lankford claims to have “complete” data on such shooters in 171 countries. However, because he has neither identified the cases nor their location nor even a complete description on how he put the cases together, it is impossible to replicate his findings.
It is particularly important that Lankford share his data because of the extreme difficulty in finding mass shooting cases in remote parts of the world going back to 1966. Lack of media coverage could easily lead to under-counting of foreign mass shootings, which would falsely lead to the conclusion that the U.S. has such a large share.
Recent cases in the US and abroad (UK and Israel in particular) have brought to the academic and public attention the question of whether criminal law should punish an individual who has obtained his partner’s sexual consent by fraudulent statements or actions.
Traditionally, sexual consent has been held invalid in cases of fraud in the factum. In cases of fraud in the inducement, on the other hand, consent has not been deemed vitiated. This distinction has been criticized: after all, if A would not have consented to sex with B but for B’s deception, why does it matter what kind of deception it was?
Sunday, October 7, 2018
Date Posted: 22 Aug 2018
Date Posted: 24 Aug 2018
Date Posted: 11 Sep 2018
Date Posted: 05 Sep 2018 [5th last week]
Date Posted: 14 Aug 2018 [4th last week]
Date Posted: 14 Aug 2018
Date Posted: 31 Aug 2018
Date Posted: 26 Aug 2018
Date Posted: 28 Aug 2018
Date Posted: 07 Aug 2018
Saturday, October 6, 2018
Date Posted: 07 Aug 2018 [2nd last week]
Date Posted: 08 Sep 2018 [3rd last week]
Date Posted: 15 Aug 2018 [4th last week]
Date Posted: 21 Aug 2018 [6th last week]
Date Posted: 07 Aug 2018 [7th last week]
Date Posted: 03 Sep 2018 [8th last week]
Date Posted: 15 Aug 2018 [10th last week]
Date Posted: 14 Sep 2018 [new to top ten]
Date Posted: 20 Aug 2018 [new to top ten]
Date Posted: 04 Aug 2018 [new to top ten]
Friday, October 5, 2018
Thursday, October 4, 2018
The Supreme Court held in New Jersey v. T.L.O. that school officials could search students without a warrant and with only reasonable suspicion, not probable cause, because of schools’ need for discipline and the relationship between educators and students. That case belongs to a body of Fourth Amendment cases involving, in T.L.O.’s terms, “special needs, beyond the normal need for law enforcement.” What Fourth Amendment standard, then, governs searches involving one of the roughly 20,000 school resource officers (SROs) in American schools? Most state courts to decide the issue ruled in the 1990s and 2000s that T.L.O. applied to SRO-involved searches, likening SROs to school officials and drawing a line between SROs and other police officers.
Reforms largely enacted in the 2010s, in contrast, draw a line between school officials and SROs, emphasizing that SROs are law enforcement officers, not school disciplinarians. Reflecting the consensus that law enforcement responses to school misbehavior harm children, these reforms limit SRO involvement to more serious crimes or immediate safety risks.