Jordan Blair Woods, LGBT Identity and Crime
, 105 Calif. L. Rev.
(forthcoming 2017), available at SSRN
I have always been fascinated by the underenforcement-overenforcement puzzle. I was thus immediately drawn to Jordan Blair Woods’s fantastic article, which analyzes this complex problem through the lens of LGBT identity. Let me explain the underenforcement-overenforcement issue: Individuals who belong to marginalized groups, such as racial and sexual minorities, disproportionately bear the brunt of crime and law enforcement. When minorities are victims of violence, especially violence motivated by bigotry, liberal advocates tend to support policies and practices that are tough on such crime. When minorities suffer police harassment, revolving door criminal justice, and mandatory sentences, liberal advocates call for police restraint, decarceration, and discretionary leniency. Is this just abject inconsistency? Not necessarily. Let’s say on block A, a white man beats up a black man, while on block B, a black man beats up a white man. The prosecutor charges the white defendant with a misdemeanor and releases him with time served, but charges the black defendant with aggravated assault, resulting in a mandatory ten-year sentence. Everyone should rightly scream foul because similar actors were treated differently on account of race, the racially privileged person received leniency, and the minority was treated harshly.
Difficulties arise when such notions of formal equality and substantive fairness translate into a legal reform agenda. One of the clear drivers of inequity in the above scenario is prosecutorial discretion, so one might propose that prosecutors always bring the most serious charge supported by the evidence. This would surely address the underpunishment of whites, but it might compound the problems of African American overpolicing. Indeed, in response to evidence showing that prosecutors disproportionately seek the death penalty in white-victim cases, race scholar Randall Kennedy once suggested that prosecutors be required to pursue capital punishment in black-victim cases, recognizing the “cost” of executing more black defendants. In my hypo, the crimes are interracial, but most violence is intraracial. Alternatively, we might be concerned with the mandatory ten-year sentence and believe that judicial discretion in sentencing would have produced justice for the black defendant. But such discretion risks disproportionately benefitting whites who harm blacks.
To complicate matters further, the categories of victim and defendant are fluid, and those who experience social and economic marginalization flow in and out of them. A singular focus on minorities as violence victims can lead to myopia about the ways that pro-prosecution reform affects minorities when they, or their loved ones, inhabit the criminal defendant category. This focus can also eschew intra-group differences, including intersections with other identities and individuals’ differing reactions to victimization. Scholars like Kennedy and Alexandra Natapoff have discussed African Americans’ complex relationship with under- and overpolicing. Feminist commentators, including Leigh Goodmark, Jamie Abrams, and myself, have analyzed female identity and criminal law, seeking to find a satisfactory path between concern for women’s widespread subordination and skepticism of the penal state. Discussion of how LGBT identity fits into this puzzle, however, has been noticeably absent from the conversation. That is, until now.
In an article that in my opinion revolutionizes LGBT and criminal law theorizing, Woods sounds a cautionary note about how past fights against homosexuality’s construction as psychopathy and newer anti-violence activism have “left us with flat understandings of LGBT offenders as sexual offenders and flat understandings of LGBT victims as hate crime victims.” Woods builds on the nascent critique of “carceral” LGBT activism set forth by Dean Spade and others (here, I draw a parallel to “carceral feminism,” a concept developed by sociologist Elizabeth Bernstein), and asserts that, after successfully challenging the decades-long regime linking LGBT identity and sexual deviance, activists focused singularly on LGBT people as victims of discriminatory violence. While this focus is understandable and laudable on many levels, it led to an impoverished account of the larger relationship between LGBT identity and criminal law.
Woods provides a genealogy of the current victim-based scholarly view through an “intellectual history” of how LGBT identity (understood historically as gay male identity) and criminal law “travelled together over time.” This history is divided into two time frames, one over a century long (1860s-1970s) and the other only a few decades (1980s-today), perhaps reflecting the rapid evolution of thought on the issue. The hundred-year story is one of sexual deviance. LGBT individuals were invisible in the U.S. criminal law for much of its history, Woods notes, except to the extent that certain same-sex “abominable” acts were criminalized. The psychologizing of homosexuality in the late nineteenth century, the scientific treatment paradigm of crime control in the early twentieth century, the development of theories of immutable psychopathy in the 1940s, and post-World War II moral panic over child sex offenses paved the way for the infamous “sexual psychopath” laws of the mid-century. Facing the choice of psychiatric treatment or criminal punishment, LGBT individuals, Woods observes, had little option but to accept the narrative of homosexuality as psychological deviance. At the same time, well-meaning criminologists supporting non-penal interventions offered sympathetic accounts of homosexuality as a product of “micro-level” problems, such as damaged family and social group dynamics, but they ignored any connections between LGBT persons’ crimes and “macro-level” social inequities like poverty and neighborhood conditions―connections that social structure theorists frequently made for other identity groups. What emerged by the 1970s, according to Woods, was a picture of a group defined by internal sexual deviance, whether such difference was benign or malign.
The second period of the intellectual history is a rapid retreat from the sexual deviance paradigm of the preceding century. LGBT activism, sexual liberationist sentiments, and the progressive 1962 revision of the Model Penal Code undermined the vitality of sodomy laws. The early part of the period also saw the abandonment of sexual psychopathy laws, removal of homosexuality from the DSM, and general move away from defining LGBT identity in terms of mental disease. Woods explains that these conditions “opened space to conceive of LGBT people in the criminal justice system in ways other than as deviant sexual offenders.” What ultimately occupied this space was a conception of LGBT identity defined, not by deviance, but by discrimination. In the 1980s and 90s, progressive criminal law theorists and anti-discrimination activists on the left and prosecutors and victims’ rights supporters on the right turned their attention to the issue of hate crimes, and violence against gays and lesbians was a “key aspect” of this growing movement. The movement proved jurisgenerative, with states widely adopting punitive hate crime legislation, and academically fecund, producing a wealth of empirical information on homophobic violence. Woods stresses that the program adopted an anti-discrimination paradigm, “namely, that a perpetrator’s discriminatory selection of a victim on the basis of the victim’s LGBT identity resulted in unique problems.” Within the criminal law, LGBT identity was again singularly meaningful, but this time its meaning was one of individual victimhood at the hands of violent hate-mongers, now conceived of as the psychological deviants. Woods fascinatingly reveals that in the Lawrence v. Texas litigation, psychological experts filed an amicus brief stressing that anti-sodomy laws reinforce the pathological anti-gay prejudice underlying hate crime.
In Woods’s telling, the frame flipped from overpolicing to underpolicing. One might ask if there is anything wrong with that. One could argue that having won the overpolicing battle against sodomy and psychopathy laws, activists were right to concentrate on battling hate crimes. The problem with that argument, according to Woods, is that it conceptualizes the world of LGBT issues in criminal law as sodomy and hate crime, when in fact there are many other―perhaps more pressing―battles to fight. The sodomy-hate crime binary has stunted the development of data on and theorizing about LGBT individuals as perpetrators of non-sex crimes and victims of non-bias crimes, and Woods devotes substantial energy to calling for more academic capital to be expended on those efforts. He envisions a critical school of LGBT criminology similar to feminist criminology. Woods also draws upon the available evidence to persuasively hypothesize that non-sodomy/hate crime issues abound: LGBT individuals disproportionately suffer from structural conditions―inequality, poverty, lack of social support―that dispose people to be perpetrators and victims of “ordinary” crimes. Moreover, one has ground to reason that, like other marginalized groups, LGBT groups are disproportionately subjected to police discrimination, harassment, and brutality.
By calling for greater breadth and introspection on the relationship between LGBT identity and criminal law and revealing that it is much “murkier” (to borrow Elizabeth Schneider’s word) than the sodomy-hate crime binary allows, Woods has contributed substantially to the scholarly discussion. But I want more. Is there more to the critique of the carceral hate crime project than saying that the project is too narrowly focused and creates an information vacuum? What does Woods surmise these new LGBT criminologists and criminal law theorists will conclude about the hate crime movement and its larger relation to LGBT justice? Should the reader take Woods’s analysis as a critique of the individualist anti-discrimination frame, a critique currently being made by left scholars in the labor context? Do his arguments resound in the feminist rejection of the victim label or progressive criminal law scholars’ objection to the victims’ rights movement? Could there be a burgeoning analysis of “governance” LGBT theory here, akin to Janet Halley’s examination of “governance feminism”? I am excited to hear what Woods and others taking up his call to action have to say about all these issues. For now, it is enough that this article exists. I believe it will be remembered for years to come as the start of something big.
Unfair begins with a reminder that medieval methods of factfinding now mocked—“fishing a ring out of a boiling cauldron, carrying an iron straight from the fire, or being plunged into a vat of water”—were employed in their era because they were understood to be cutting-edge analytical techniques. The point, which Adam Benforado drives home with startling, embarrassing force, is that our criminal justice system is in its own dark age, relying on techniques known to be inaccurate and to lead to erroneous results.
Some critiques are familiar, such as that interrogation using the Reid Technique can lead to false confessions, that there are many incompetent defense lawyers, that police and prosecutors sometimes suppress exculpatory evidence. But their unrelenting expression, from the predictable weaknesses of criminal investigation to the established disutility of certain forms of imprisonment, leaves the reputation of the system in tatters. Unfair ends with reasonable and creative, albeit politically improbable, suggestions for reform.
Unfair uses insights from cognitive science and related fields, including research by the author, to explain why our criminal justice system is often a solemn farce. Chapter 1 reports the tragic tale of David Rosenbaum, found lying incoherent on a Washington, D.C., street one evening by EMS. The paramedics jumped to the conclusion that he was drunk; doctors and nurses at the hospital relied on that diagnosis and left him essentially untreated. In fact, he had been struck in the head in the course of a robbery. Rosenbaum, a retired New York Times reporter, died; Senators Orrin Hatch and Ted Kennedy, among others, attended his funeral.
It may be consistent with intuition that public services in a big city could fail. But DNA evidence, our precious, infallible DNA, seems to be subject to the same confirmation bias. Unfair recounts a study where scientists were asked to see if a known sample matched crime scene evidence. The outcomes varied widely depending on whether those performing the test were given a backstory strongly indicating guilt.
Jurors have the luxury of not being under direct stress when making decisions. They have time to deliberate and reflect. Yet, their decisions often rest on unconscious considerations, such as the race or appearance of witnesses or parties, or on other grounds that are in fact not relevant, such as the level of confidence expressed by an eyewitness.
In what will undoubtedly be one of Unfair’s most controversial propositions, Chapter 3 expresses doubt about the existence of free will, and seeks “to eliminate the myth that poor character or an evil soul is behind criminal behavior.” It points out that many people in prison suffer from mental illness, or experienced head injuries. Some forms of misconduct seem to be genetically influenced, and the chapter outlines the theory that childhood exposure to lead explains, in whole or part, the crime rise of the 1960s and beyond. (While I admit that many criminal impulses result from forces that are not the fault of the individual or within his or her control, at the margin, I believe that many criminal impulses can be resisted.)
Unfair’s unwillingness to point the finger is bipartisan; like offenders, the criminal justice system itself does not recognize its actual motivations. For example, “the key to prosecutorial misconduct” in the sense of suppressing exculpatory evidence is surprising: “most lawyers aren’t consciously trying to cheat defendants; they’re just extremely good at deceiving themselves.” When a cop or prosecutor is trying to put a guilty person in prison, no evidence, obviously, can be exculpatory, because the person is guilty. Therefore, the rationalization might go, not disclosing an alibi witness or a no-match DNA test is suppressing mistaken rather than exculpatory evidence.
The criminal justice system officially prides itself on having no bias; “equal justice under law” is inscribed on the Supreme Court building, built in 1932, when African Americans and others could be freely excluded from the jury room and voting booth. Because various forms of cognitive bias are the natural human condition, Unfair proposes to recognize, manage, and reduce bias, instead of pretending that it does not exist. “To hear the law tell it, we are supermen and wonder women, able to rise above our prejudices, see through lies, and recall past events with crystal clarity.” Perhaps the clearest evidence that no party believes this is true is the fact that all plaintiffs and defendants in serious cases will, if they have the resources, hire jury consultants to determine what demographic groups are most likely to be biased in their favor, and what kinds of arguments and evidence will most effectively trigger that bias.
Unfair’s ultimate ambition is, to the extent possible, to squeeze out the causes of inaccurate results and biased policies. Improved forensic science and investigative techniques, as well as increasingly ubiquitous video recording, will help. Unfair also recommends more attention to crime prevention, cost-effectiveness of various policies, and reintegration of former offenders into society.
Perhaps the book’s most original proposition is to use modern technology to make trials less biased. For example, instead of issuing ineffective curative instructions after improper questioning or argument, the proceedings could be recorded, and juries presented only with clean, admissible evidence.
Virtual trials could go even further. Benforado writes, “In most trials, there is no compelling reason for jurors to inspect the defendant, witness, or attorney in the flesh. And preventing jurors from doing so might yield significant benefits.” The race, ability, and appearance of lawyers, and others, has no correlation with the underlying facts, and therefore no legitimate relationship to the outcome. The system could extract the appearance, voice, race, and gender of trial participants, by using avatars or standardized voices. This would be a radical change, but deprives jurors of nothing they are entitled to know.
No one denies that the criminal justice system should be based on reason and respect for our fellow humans, but Unfair compellingly insists that to do that will require accepting some uncomfortable truths. Every lawyer and judge working in the criminal justice system should read this book. Those who take it seriously will sleep uneasily for quite some time.
Margo Kaplan, Rape Beyond Crime
, 66 Duke L.J.
(forthcoming 2017), available at SSRN
Not long ago, I was indulging in one of my favorite lazy-day pastimes – standing in my local bookstore, reading. The book was Girls and Sex, Peggy Orenstein’s latest, and I left the bookstore considerably more unsettled than when I walked in. Suddenly it seemed like a good idea, if not to forbid her to go to college altogether, at least to walk my 18-year-old daughter to the nearest feminist sex-toy store first. Now comes Margo Kaplan to offer a legal perspective on American “rape culture,” and a new plan for furthering the feminist project of healthy, happy sex lives for everyone.
The idea that men’s sexual desires are insatiable and that women are responsible for keeping them in check has been around for a long time, and in Rape Beyond Crime Kaplan cites abundant evidence that it remains a cornerstone of American beliefs, such as a survey finding that many young men do not see coercing women into sex as wrong. Orenstein’s book, which is based on interviews with young American college and college-bound women, underscores Kaplan’s argument. Orenstein’s interviewees talked about feeling sexually empowered. But their actions attested to intense cultural pressures: to always look “hot” (which, these days, involves Brazilian waxes and, occasionally, surgery to alter the look of one’s labia); to be seen as neither “prudish” nor “slutty”; to embrace a world of casual, ambiguous “hookup” relationships (facilitated by alcohol); and to place men’s sexual desires above their own. (On this last point, for example, Orenstein describes her frustration in trying to convince her young interlocutors that there is something not quite fair about regularly giving blow jobs but seldom requesting, or even being comfortable with, cunnilingus.)
Kaplan concludes that “absent a broader change in this culture, criminal law faces a double bind: rape laws can be either ineffective or unjust.” Because there is such a mismatch between the world sexual equality feminists, at least, would like to live in and the world we actually do live in, scholars and actors in the criminal justice system struggling to apply statutory terms like “force” and “consent” find themselves either confirming social norms that preserve men’s sexual access to women (ignoring the needs of male and female victims), or promoting idealistic norms that feel alien and unreasonable to the ordinary person.
The answer, Kaplan proposes, is to supplement the criminal law of sexual assault with a public health approach to sexual culture. As she notes, “public health law” is a grab bag of doctrines and policies including educational initiatives, data collection, and public-private partnerships among government, nonprofit organizations, media outlets, and advocates, all underwritten by the police power of the states and the federal power of the purse. The cornerstone of a public health approach, according to Kaplan, is its focus on “populations and prevention” – the exact opposite of the criminal justice system, which focuses on individuals and, despite its aspirations to deterrence, requires a violation as a trigger.
Kaplan’s proposed public health approach to rape has two main prongs. First, government agencies would amass detailed data on sexual violence (and where possible, presumably, sexual encounters that are unwanted regardless of whether they are understood as “violent”). Second, government agencies would promote new cultural norms for sexual behavior, challenging the norm of male aggression/female passivity and promoting in its stead an ideal of “good sex—sex that involves communication, mutual respect, and mutual pleasure.” (On the model of Michelle Obama’s work on obesity, I imagine First Husband Bill Clinton traveling the country promoting good sex for all.) In addition, Kaplan would encourage rape prevention campaigns to look “upstream” at structural determinants of victimization, such as poverty.
Kaplan is forthright about her ambition to use the power of the law to promote social norms. In her view, “[i]nterventions that encourage empathy and respect, and that reject gender norms that encourage sexual violence, should start at an early age and progress in an age-appropriate way.” But she doesn’t note that such interventions would run straight into the buzz saw UC Berkeley sociologist Kristin Luker describes in her 2006 book, When Sex Goes To School. Luker, studying K-12 sex education curricula in varied American communities, found a deep rift between “liberals” – for whom, in the words of New York Times reviewer Judith Shulevitz, “sex is natural and unmysterious, a healthy, pleasurable, quasi-recreational activity” – and “conservatives” – who (again in the words of Shulevitz) “consider sex sacred but dangerous, transformative when contained by marriage but destructive outside it.” Kaplan’s “public health” approach to sex is clearly a liberal approach. It would likely face the conservative response of thinking that once again, liberal coastal elites are trying to use government power to force a secularist and even immoral way of life on unwilling communities. And just as North Carolina and other states have used “protecting children” and “protecting religious freedom” to push back against laws and policies protecting LGBT people from discrimination and exclusion, I can imagine the pitched battle that would erupt should a future administration decide to help elementary-school children “theorize ‘yes.’”
But let’s say that, as in the war over same-sex marriage, liberals can win the war over sex education with the help of social media, Oprah, and Hollywood. Kaplan also passes over a more subtle objection from critical legal theory. Queer scholars like Janet Halley and feminist scholars like Aya Gruber (whom Kaplan cites approvingly in her critique of the criminal justice approach to rape) might ask whether alliances between feminist advocates and the state to change social norms are necessarily a good idea. Halley’s concept of “governance feminism,” for instance, encapsulates the idea that feminists with a taste of power may, like other people, use it to run roughshod over people who don’t agree with them. Gruber might suggest that a generation from now we will look back on feminists working in alliance with government, Facebook, and Google to discover what everyone desires and does sexually, and shudder at the emergence of a new site of surveillance and discipline enabled by Silicon Valley and powered by the state.
Despite these omissions, however, Kaplan’s article is thoughtful and thought-provoking, timely, and well-argued. As a blue-state sexual liberal, I would love for my daughter to go to college secure that she knows what and whom she desires and how to get it, and able to trust that both her “yeses” and “nos” will always be respected. I am also thoroughly persuaded that criminal law alone will never get us there. It’s high time we pursued new approaches to a world of equal access to sexual pleasure and equal protection from sexual danger. Kaplan’s proposal is a terrific place to start.
In criminal justice circles, “big data” is the new buzzword: police departments are experimenting with the application of computer algorithms to vast amounts of digitized data to predict the future geographic location of crimes, to identify those people likely to become involved in gun violence, and to assess future criminality for the purpose of setting bond amounts and determining sentences. It turns out, though, that algorithms have problems. They can reflect the biases and choices of the humans who create them. They can also be plain wrong.
Besides algorithms, there is a more basic problem. The data itself can contain countless mistakes, inaccuracies, and discrepancies. While the wrong address, the invalid warrant, and the mistakenly recorded conviction don’t sound like particularly new problems (they aren’t), they represent an urgent but overlooked issue in our information-dependent world. This data determines how the government distinguishes between the dangerous and the low-risk, those who should be arrested and those who should be left alone. However, as Wayne Logan and Andrew Ferguson point out in their insightful and important article, Policing Criminal Justice Data, this “small data” is too often dead wrong. To make matters worse, there is little incentive for government agencies—at any level—to care. Their discussion is a must-read for anyone interested in the increasingly important role of information distribution and control in criminal justice.
Criminal justice information errors have enormous costs in the lives of ordinary people. Consider the problem of an erroneous arrest warrant, wrong perhaps because it is meant for a person whose name is close enough to, but not exactly like, yours. Should that mistake lead the police to arrest you, you may—indeed are likely to–become subject to a search of your person, and perhaps later a strip search in jail and a compulsory DNA sample. A night in an overcrowded and sometimes dangerous jail isn’t just a loss of liberty; it’s an exposure to some very real harms. The resulting arrest record may also harm your future chances of employment and much else.
Should we care? Absolutely. At the individual level, such mistakes can be not only demeaning but ruinous in a very practical sense. Every mistaken arrest hurts the victim, and misdirects government attention to the wrong places. More abstractly, collecting and generating so much information about its citizens obliges a government to make reasonable efforts to guarantee data accuracy. Without that expectation of good faith, the government risks our trust in it.
The legal remedies for these mistakes are weak. Take, for example, the options of a person who has been the victim of an erroneous arrest, because her name was similar to the one on an outstanding arrest warrant. Police have considerable latitude to make mistaken arrests. In addition, recent U.S. Supreme Court case law has narrowed the scope of the exclusionary rule in cases of “good faith” mistakes. Civil suits against the police are no better, since qualified immunity typically protects them from liability in most cases of informational mistakes. Even where legal avenues are formally available for victims of the government’s data errors, few people have the time, resources, or expertise to challenge the black box of most government databases. The federal and state governments have little incentive to change the situation.
Logan and Ferguson, after having explained this abysmal state of affairs, offer thoughtful solutions that address much-needed institutional changes. The federal government, in particular, can be an important driver of reform since federal money has played such a large role in the growth of state criminal justice databases. Federal resolve to improve data quality might take the form of quality assurance measures, such as mandatory audits. States too can play a critical role in providing individual legal remedies for criminal justice data errors. An underlying theme here is the importance of cultural change: caring about data quality is perhaps even more important than the details of its practical implementation.
We live in an age of the algorithm, but we also live in the age of mass information. Nowhere is the cost of mistaken information more tangible than in criminal justice. As Logan and Ferguson so persuasively show in Policing Criminal Justice Data, those data errors are at the core of government trust and accountability.
Jane Bambauer, Hassle
, 113 Mich. L. Rev.
Every Fourth Amendment scholar is familiar with the concept of “individualized suspicion.” The classic example comes from Terry v. Ohio, where Officer McFadden watched two men walk up and down in front of a storefront numerous times, consult with another individual, and then return to checking out the storefront. The Supreme Court held that, while McFadden did not have probable cause for arrest, he had a “particularized” belief that the three men were up to no good and thus could stop them and, when they gave unsatisfactory answers about their activity, frisk them as well.
That type of case is often contrasted with what are sometimes called “suspicionless” searches and seizures. The classic example of that type of police action is the license or sobriety checkpoint that stops individuals who drive up to it. The Court has indicated that such seizures are permissible despite the absence of suspicion that any particular driver seized has an expired license or is drunk, as long as the police stop everyone who comes to the checkpoint or rely on neutral criteria in deciding whom to stop (such as whether the car occupies a pre-selected position in line).
Although to most the distinction between the two situations is intuitive, it is blurrier than it might initially appear. Seizures at license checkpoints are based on suspicion in the sense that the department operating them believes that a certain percentage of drivers stopped will have expired licenses. Thus, while the suspicion with respect to any particular driver is very low, it is still the case that every car stopped at the checkpoint is associated with some degree of suspicion. At the same time, one could say the stop in Terry was based on the same type of “generalized suspicion” involved in the checkpoint scenario, in the sense that Officer McFadden was operating on preexisting stereotypes about the behaviors that are consistent with burglary.
As modern policing increasingly relies on algorithms and profiles, the connection between “suspicion-based” and “suspicionless” searches and seizures will become increasingly obvious. Facial-recognition technology, data-mining algorithms, hot-spot policing, and other predictive policing techniques allow police to scan large segments of the population for suspicious activity or individuals. Although these techniques function like checkpoints, they are based on calculations that the individuals identified are more likely to be involved in criminal activity than those who do not fit the profile.
Enter Jane Bambauer’s article Hassle. Bambauer begins by making clear why the word “individualized” in the phrase “individualized suspicion” obscures the fact that, in both Terry-type cases and checkpoint-type cases, police who conduct searches and seizures are acting with some quantum of suspicion about the person, entity, or item affected. The only difference is that in the situations usually thought of as individualized suspicion cases, courts specifically discuss whether that quantum is sufficient, whereas in “suspicionless” cases (often involving what the courts call “special needs”), they don’t.
Bambauer also debunks the idea that individualized suspicion is somehow more accurate or more desirable than generalized suspicion. Scholars have decried the use of profiles on the ground that they have significant error rates. But so do all searches and seizures. Some factors—such as race—should never appear in profiles, both because using such a factor is particularly repugnant and because race is not a very good predictor of crime. But, as the example with Officer McFadden illustrates, even cases we call “individualized” ultimately rest on profiles.
Others have made this point. As Bambauer notes, Fred Schauer has stated: “[O]nce we understand that most of the ordinary differences between general and particular decisionmaking are differences of degree and not differences in kind, we become properly skeptical of a widespread but mistaken view that the particular has some sort of natural epistemological or moral primacy over the general.” The more innovative part of Bambauer’s article—the “hassle” part—is the explication of how the individualization requirement has inadvertently acted as a break on dragnet searches and seizures. As Bambauer defines it, hassle measures the chance that an innocent person will experience a search or seizure. When courts require the cop on the street to have “individualized,” as opposed to generalized, suspicion for a stop, they are not only requiring officers to have good justification for their actions but also implicitly prohibiting police from hassling large numbers of innocent people. As Bambauer puts it, “individualization has kept hassle low by entrenching old methods of investigation,” methods such as relying on tips and individual conduct rather than technologically-oriented panvasive techniques.
One might react to this point by concluding that the courts’ take on individualization is a good thing. But not Bambauer. She points out that modern techniques can improve policing by reducing error rates, limiting reliance on vague suspicion factors such as “nervousness” or “bulges” (which can often be covers for race), and making policing more evidence-based. Bambauer also recognizes, however, that these techniques come with a cost—a potential for increased hassle. Thus, she argues that the Fourth Amendment requires attention not only to “hit rates” (the suspicion part of individualized suspicion) but also to hassle rates (the number of innocent people affected by a given police technique). She suggests that hassle can be limited through keeping profile programs small or through randomization that reduces the number of people affected by the search or seizure. Another possibility—most likely relevant when, as with checkpoints, significant hassle cannot be avoided—is to ensure hassle rates are explicitly contemplated and authorized by a legislative body representative of those people likely to be affected by the search or seizure.
Bambauer begins her article with a hypothetical. Suppose an officer comes to a judge seeking a warrant based on a methodologically sound study showing that 60% of Harvard dorm rooms contain drugs. The officer also provides the judge with an affidavit listing ten dorm rooms selected through a random number generator and stating that no other dorm rooms will be searched on the basis of the study. The first piece of information provides the hit rate (a high one). The second ensures that the hassle rate will be low. Bambauer thinks the warrant should issue. Whether or not you agree, her article points the way to interpreting the Fourth Amendment in a way that better regulates old techniques and provides a methodology for evaluating new ones.
To build coalitions on controversial issues where worldviews collide, you have to search for common or at least less contentious ground. Disagree on the rights and wrongs of the death penalty? Rather than moral head-butting over abolitionist legislation, let’s talk instead about the millions of extra taxpayer dollars spent on trying to attain capital sentences that may never be carried out. Disagree on whether mass incarceration is a moral and humanitarian crisis or sound safety protection? Rather than shouting past each other, let’s talk instead about a common denominator of concerns over the crippling costs to taxpayers of paying for overstuffed prisons. Money talk may bridge impasses and offer a seemingly more neutral way out of the morass of competing worldviews.
Similarly, now that there is a historic convergence of interests around decarceration, concerns over the perils of releasing prisoners and recidivism risks are addressed by the promise of scientific selection. Evidence-based is a hot buzzword in everything from medicine to corrections. The appeal and authority of the notion of evidence-based practices is the promise of an objective rigorously evaluated foundation to justify decisions. Evidence-based corrections reassures communities and the nation that risks will be managed scientifically and costs and benefits meticulously balanced.
Cecilia Klingele’s new article offers an excellent guide to the proliferation of evidence-based practices in the correctional context. She argues that while many evidence-based approaches aim to offer smarter alternatives to mass incarceration and reinvigorate rehabilitationism, the practices may also perpetuate and extend a culture of control. Most intriguingly, Klingele calls for a return to values and normativity.
Klingele notes the strategic decision to get buy-in from states by offering a technical rather than normative pitch about the merits of evidence-based correctional practices in lieu of human warehousing. While the strategy has been successful, Klingele calls attention to the sacrifice about confronting deeper values questions. She writes:
[P]olicymakers from across the political spectrum have adopted evidence-based correctional practices because they promise financial savings, increased efficiency and “scientifically proven” results – not necessarily because they believe current correctional practices are morally unjustified. . . . The problem is that the cost of maintaining buy-in from a broad range of policymakers has been neglect of a deeper conversation about the goals of the correctional system, and the uses to which new evidence-based tools will be put. . . . But there are no shortcuts to cultural change. (P. 133.)
Fundamentally, evidence-based correctional practices decide the fate of human beings, not “depersonalized ‘risks.’” Klingele argues that we should openly acknowledge moral values such as fairness and kindness and not obscure or try to recharacterize them as evidence-based.
Klingele terms the revival of rehabilitation neorehabilitation and identifies two strains: humanitarian and scientific. Scientific neorehabilitationism supplies the evidence base to identify effective interventions. Humanitarian neorehabilitationists value rehabilitative efforts even if they do not yield measurable lasting indicia of effectiveness because of the signaling about human dignity, worth and the need to mitigate penal harshness. At bottom, Klingele appears to be a humanitarian neorehabilitationist.
She values the dignity of the individual human and worries that the discourse of evidence-based practices will simply be the preservation by transformation of what Malcolm Feeley and Jonathan Simon termed the new penology in the early 1990s. This approach deploys data about populations to better “identify and manage unruly groups” and sort people. Klingele argues that we should aim higher, beyond building better algorithms for managing and sorting people. We should judge the worth of innovations by moral and normative criteria, not just scientific measures for effectiveness.
Klingele’s call to bring values back into the evaluation is all the more noteworthy because she serves as an Associate Reporter on the American Law Institute’s Model Penal Code Sentencing revision. She has an excellent vantage point to help shape future corrections policy. We are fortunate that someone able to elegantly navigate and translate between the worlds of scientific and normative evaluation is playing such an important role in helping chart the future.
Cite as: Mary Fan, Bringing Values Back
(May 3, 2016) (reviewing Cecilia Klingele, The Promises and Perils of Evidence-Based Corrections
, 91 Notre Dame L. Rev.
101 (2015)), http://crim.jotwell.com/bringing-values-back/
“I Do for My Kids” is a timely and thoughtful empirical exploration of racialized access to justice issues with within family courts. Why then, one might ask, should it provide the basis for a jot in the area of criminal law? The answer has to do with the punitive means some jurisdictions are utilizing to enforce the payment of child support obligations.
Using original research, including in-person, ethnographic observations and interviews at multiple sites, the authors detail how “[c]ivil incarceration pursuant to an order of contempt is commonly used as a remedy to enforce child support orders against indigent noncustodial parents.” (P. 3035.) In this work, Professor Brito and her co-investigators, paint a riveting but disturbing portrait of how low-income—and typically black—fathers must negotiate the demands of law and identity within the space of child support enforcement hearings.
This rich work operates on multiple levels. First, it serves as another example of how civil contempt proceedings and detentions have become increasingly punitive. Second, like the criminal justice system these civil proceedings appear to be mimicking, they deploy identity tropes and unreasonable expectations with regard to the means and opportunities of certain noncustodial fathers. As such, when civil incarceration is ordered, is often seamlessly tied to the race and class status of the obligors. Given the moral condemnation that attaches to “deadbeat dads” and the unbound nature of civil incarceration, these practices become another method punishing or “criminalizing” raced and gendered poverty.
The study referenced in the article investigates the operation of child support enforcement hearings in two states, and focuses upon civil contempt proceedings in State A. Incarceration for contempt in State A involves actions by child support attorneys and family commissioners culminating in recommending a circuit court judge issue a contempt order. Failure to comply with the order results in commitment to county jail, unless the contemnor can meet “purge” conditions. One such condition would be to bring a support arrearage current. Civil contempt proceedings require a determination that a person has “willfully violated” (P. 3036) an order to pay.
Even though the proceeding is civil in nature, willful violation operates as a criminal law mens rea term, with the obligor being found to have scienter of wrongdoing. And while we treat the jailing as if it is not punitive, this becomes another example—similar to certain administrative immigration detentions—of an uncomfortable overlap between civil and criminal deprivations of liberty. According to a forthcoming Seattle Law Review article on new forms of debt peonage by UCLA Law Professor Noah Zatz, “[I]n larger U.S. cities, a shocking 15% of African American fathers are at some point incarcerated for nonpayment of child support.” In one recent example involving disastrous consequences, when Walter Scott was killed while fleeing from an officer in North Charleston, SC, media reports indicate he feared being jailed pursuant to a bench warrant that had been issued because he owed $18,000 in back child support.
“I Do for My Kids” not only raises important questions about the nature and character of civil incarceration proceedings, it explores the racialized consequences that result from the ostensibly color-blind manner in which the proceedings are carried out. This stands as another way in which the civil process mirrors criminal practice. Much like in criminal proceedings, race is rarely, if ever, explicitly referenced in support hearings. The researchers, however, repeatedly observed mostly black men being brought in front of nearly all white judges and commissioners, to be chastised for failing to pay support. Although the fathers would routinely raise issues related to their inability to find work, these narratives were ignored in favor of commissioners and judges directing then toward ineffective jobs programs and requiring them to return later with payment or face civil contempt. (Pp. 3036-3044.)
The researchers tap into a set of rich dynamics in these interactions. First, the court actors seem to rarely listen to or really “see” the fathers. Second, they ignore the ways that race limits the fathers’ work options, especially for black fathers with criminal records. As Devah Pager’s excellent article, The Mark of the Criminal Record, supports, Blacks without criminal records are often less desirable employees than Whites with them.
Within these proceedings, then, “the specific challenges of Black men within the labor market become invisible.” (P. 3041.) Not only do family courts fail to sufficiently grapple with how race shapes the reality of these men, all of the legal actors become coopted in the colorblind narrative, such that counsel for the fathers rarely raise discrimination as an explanation for why a delinquent father has not located employment. As a result, these fathers are presented with a no-win situation: either find funds to pay—which most cannot without work—or be held in civil contempt (jailed). If one concurs that that there is little meaningful difference between civil and criminal detentions in terms of liberty deprivation, the family courts have effectively “criminalized” status.
While I was drawn to the article due to the breakdown it demonstrates between criminal and civil processes, it is also thoughtful and engaging research. For example, in addition to illuminating the disturbing practices within the hearings, the article makes claims about how blindly following colorblind leanings actually instantiates white norms. The existence of such norms, forces advocates on behalf of delinquent fathers to raise race considerations in oblique, indirect and ineffective ways.
To drive home this point, the article presents a particularly stark example in the form of the hearing in Mitchell v. Robinson. This case demonstrates how these proceedings erase reality in favor of a stock story. Not surprisingly, a similar phenomenon has been observed in the treatment of defendants in Chicago criminal courts during another long-term ethnographic project to be published by Stanford University Press in the next few weeks—Nicole Van Cleve, Crook County: Racism and Injustice in America’s Largest Criminal Court. In Mitchell v. Robinson, the chronically underemployed father is repeatedly instructed that he needs to get a job. The Court ignores the reality of his difficulties in gaining employment. Instead, he is described as someone needing to do better and more. Speaking out of turn, he announces in court, “I do for my kids,” then describes how he panhandled to afford a gift for his daughter—support which the court does not recognize. In this exchange, we see the power of this work. In a single moment, it marks the court’s erasure of the father’s challenges, but also his resistance to that move. I observed a similar phenomenon a decade ago in my article Black Women’s Stories and the Criminal Law, 39 U.C. Davis L. Rev. 941 (2006), where I described the criminal prosecution of my own grandmother being partially based on her status as a black woman on welfare. In uncloaking such court practices and the resistance they engender, Brito and her co-authors add to our understanding of the connections between race and access to justice issues, both in the civil and criminal context.
This is first-rate sociolegal work on a number of levels. First, it is multidisciplinary, featuring researchers trained in family law (Brito), educational policy (Wong) and social work (Pate), engaging in exciting and important field work. Second, the work leverages multiple literatures, to explicate the inner-workings of family court proceedings and enhance our understanding of how social identities inform one’s treatment in legal domains. As such, and in a manner that signals respect for the burgeoning empirical methods and Critical Race Theory (e-CRT) movement, within their analysis they borrow key insights from CRT and studies of legal consciousness. Finally, this work reinforces claims about the illusory nature of rights that were important to the agendas of legal realists and Critical Legal Studies (CLS) scholars and that have been central to CRT and sociolegal research. For example, in his foundational article Legitimizing Racial Discrimination, CLS scholar Alan Freeman demonstrated how U.S. Supreme Court decisions used anti-discrimination doctrine to instantiate inequality.
Here, the researchers similarly demonstrate how the colorblind rhetoric deployed within civil contempt and other child support proceedings actually deepens racial subordination and inequality. It is also through this type of insight that they signal the porous boundary between civil and criminal processes, both in the treatment of their legal subjects within the proceedings and the disparate and punitive nature of the outcomes.
For criminal justice enthusiasts, Padilla v. Kentucky (2010) represented a victory for criminal defendants in an area where there are few. Whereas previously, defense attorneys were under no compulsion to inform clients about the downstream consequences of a conviction, Padilla said that deportation was different. The severity of this outcome mandated that clients be made aware of this possibility before making a guilty plea—it simultaneously served as a mandate for the defense bar. As a result of the ruling, defense attorneys were involuntarily thrust into the world of crimmigration law, with the beneficiaries being those accused of a crime. Now, at a minimum, defense counsel would need the competence to be able to advise clients who face the risk of deportation.
In Crimmigration Law, César Cuauhtémoc García Hernández has created an immense resource to help ensure this occurs. The work provides a comprehensive overview of a complex phenomenon in American law, namely, how criminal and immigration law converge into a distinct body of law that necessarily involves both.
The book is a “must-read” for practicing attorneys and legal scholars working in this area. It is written with rigor from a fluid pen that is accessible both to undergraduate and graduate students alike. Although scholarship focused on crimmigration law is still in a fledgling state, this book represents a new centerpiece in the discussion that raises the scholarly stakes.
On a personal level, the work might best be understood as embodying the persona of García Hernández himself, whose life is divided between practice and the professoriate. As an immigration lawyer with a practice in Texas, he is entrenched in the practical issues facing migrants and is the author of numerous practical resources for attorneys. At the same time, he is a luminary among scholars working in the area and founder of a nationally recognized blog, crimmigration.com. This book reflects one who straddles two worlds at once, which is united by the desire to achieve greater justice.
The anatomy of the text consists of three topical sections, each of which contains several chapters. The first part, “Criminals in the Immigration Law System” examines various issues in law and practice that have blurred the lines between crime and immigration, paying close attention to laws that subject criminals to immigration law. Next, “Migrants in the Criminal Justice System,” looks in reverse by considering issues that arise when non-citizens violate the criminal law. Together, these sections demonstrate the dialectic between immigration and criminal law; they are not starkly divided spheres, but converging bodies that are sometimes inextricable. The final part, “Enforcing Crimmigration Law” builds from the previous sections by outlining the enforcement aspects of Crimmigration law, including border policing and civil detention. This concluding section caps the study by detailing how even the enforcement apparatus represents a melding of mechanisms found in both civil and criminal law.
The work demonstrates that sometimes, criminal law practice and immigration law practice sit in a symbiotic relationship. Indeed, the immigration system at times mirrors the criminal justice system; simultaneously, what happens in criminal proceedings is critical for determining a migrant’s legal status, including whether one can be deported from the country. This is particularly the case for defense attorneys at the pre-trial phase since, as Padilla presumes, knowledge that a conviction will lead to deportation might very well impel a defendant to go to trial rather than plead guilty.
The book’s navigation through these and other complex doctrinal issues makes for a solid introduction to the fundamentals of crimmigration law. The writing is laced throughout with helpful practice problems that allow readers to test their substantive understanding of the issues in real time before delving deeper into the text. Each chapter is also designed with additional sources for further reading. As such, the book represents an excellent pedagogical resource for law school courses and clinics in criminal or immigration law.
Taken wholly, this book is valuable and has many laudable achievements, not the least of which is its didactic approach. As such, it represents a tool for lawyers to become better lawyers for their clients, and to achieve better outcomes for the most socially outcast members of society—criminals and immigrants. Unsurprisingly, these out-groups are often the ones with the greatest need for zealous legal representation, yet they often must settle for far less in a system that is stacked against them. This work is designed to help lawyers devise better strategies, achieve better outcomes, and hopefully achieve greater justice for their clients.
- Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 U.C.L.A. L. Rev. 1156 (2015).
- Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, 8 Harvard Unbound 109 (2013), available at SSRN
Two recent articles by Professor Allegra M. McLeod, her 2013 essay, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives, and her 2015 article, Prison Abolition and Grounded Justice, represent the most significant attention to the idea of prison abolition inside the legal academy for at least generation. The first builds toward the second, a powerful and broad gauge intervention in the current exciting moment of reform in criminal law and justice. Together they constitute some the most exciting new work on criminal justice I have read in sometime.
We stand at what increasingly seems like the most promising change point in decades in the criminal justice era. Academics, long out of the action find themselves facing two risks. If we too exuberantly carry forward the radical critique of criminal justice, at a time when the system seeks legitimacy from researchers, we may miss the opportunity to help build a more “evidence based” system and even contribute to an eventual public backlash in favor of a return to “get tough” punitive policies. The other risk is that we accept premature closure of the era of mass incarceration, embracing too many of presumptions about crime, high incarceration neighborhoods, and law enforcement competence that built and sustained the era of mass incarceration. Professor McLeod’s essay and article are, along with the recent book Captured by Professor Marie Gottschalk of the University of Pennsylvania, Department of Political Science, the strongest efforts yet to push attention to the latter risk, of defining mass incarceration “down” in ways that will allow it to reshape and reformulate itself (perhaps into a system of mass probation or mass jailing).
The essay and the UCLA article together take on three distinct moves necessary to bring Abolition theory into the criminal law debate (and one of her premises is that just bringing it into the debate can help reshape the horizons of the possible for more realist reformers).
The first section opens with a potent reminder of how violent and dehumanizing our massive criminal justice system is (even without considering executions which are largely unmentioned here). It is not just the degrading carceral state but also the “punitive policing” that keeps it inflated. As shown by the sociologists of the 1950s and 1960s, prisons even before the era of mass incarceration were associated with degrading and damaging treatment, which could not help but build resentment and perverse adaptation in prisoners. The supersizing of prison populations, the normalization of chronic hyper overcrowding, and the accumulation of a disease burdened prison population has made the level of degradation and damage far deeper. The taint of racial discrimination, which has come recently to be strongly associated with mass incarceration thanks in part to Michelle Alexander’s New Jim Crow, is on McLeod’s account far deeper than our war on drugs. The idea, forged in the Jim Crow era, that incarceration could be a political technology for reproducing status inequality pervades the system regardless of which crimes we focus on.
For many, abolition is rejected from the start on the premise that we need some way of dealing with the most dangerous people convicted of the most serious crimes. McLeod notes that abolition need not (and probably could not) mean an immediate end to all carceral institutions. What she favors appears to be a relentless critical scrutiny on existing forms of incarceration in the goal of displacing as much of it as possible as quickly as possible. Yet even this kind of aspirational abolitionism draws an almost instant rebuke (which I actually got from a colleague I discussed this work with, and who should know better), “what are you going to do with Manson?” This focus on what McLeod and other abolitionists call the “dangerous few” allows the maintenance of the above problems to seem normal and in fact indispensable, unless the objector can prove they have a way to prevent harm from a population that is a tiny fragment of the carceral population and who are themselves subject to life course reductions in criminal risk (even Charlie Manson won’t be killing anyone in his 90s).
The second and perhaps most important productive task of McLeod’s abolition intervention is to highlight the danger of accepting the reforms that seem significant when abolition is off the table, including greater use of probation, greater efforts to combine law enforcement with social services, and more sophisticated use of police in space and time to interrupt crime “hot spots.” Each of these positions are advocated by some of the best criminologists of our time whose books I regularly give to my students interested in dismantling mass incarceration (Mark Kleiman, David Kennedy, Frank Zimring), but I share McLeod’s critique of these as building in a dominance of law enforcement competence and the dangerousness of the criminalized community that locks us into far too shallow a reform trajectory.
The third challenge, one which I find compelling even if its resolution in this piece is only a down payment on more work to come, is that we must begin to address forms of regulation and governance outside of criminal law and justice if we are to truly reduce mass incarceration. McLeod reminds us that criminal law is not premised simply on the moral urgency of holding wrongdoers accountable (notwithstanding the belief of many legal philosophers), but on the often unacknowledged premise that it is a necessary tool of governance in a highly unequal and violent society. Professor McLeod argues that those of use operating in the criminal justice reform space have to actively consider forms of governance that can regulate many of the social problems not cast into the frame of crime and punishment as social control. This section is more of a starter kit of examples than a fully framed theory of regulating the poor beyond crime. It ranges from the technocratic interventions like situational crime prevention and urban design, to the radical communitarian idea of creating “safe harbors” where those threatened by violence of all sorts can achieve safety without police or punishment.
Am I an abolitionist? Even before reading Professor McLeod’s recent article I have found myself struggling with that issue. Abolition as an end point and as a goal is perfectly appropriate. The bridge to abolition is, fealty to the ideal put so well by Justice Kennedy in Brown v. Plata, that while prisoners lose their liberty, they do not lose their “essential human dignity.” Punishments, whether the take they form of incarceration, supervision in the community (which as McLeod argues is also quite punitive), or fines and fees (which can reduce people in poverty to the virtual status of slaves) must always respect that human dignity. As the recent Report of the National Research Council, The Growth of Incarceration in the United States (2014 Chapter 12) emphasized, just punishments should reflect proportionality between crime and punishment, the principle of no more punishment than necessary (or parsimony), regard for the person’s social citizenship or belonging to the community, even while being punished, and concern for social justice. Our current sentencing system and our prisons and jails are badly failing on all of those accounts. To get there, which is their constitutional obligation under the 8th Amendment, our carceral institutions will have to be reinvented, their populations, down-scaled enormously, and their basic model of coercion and control revisited.
Cite as: Jonathan Simon, Abolition Calling
(February 5, 2016) (reviewing
Allegra M. McLeod, Prison Abolition and Grounded Justice
, 62 U.C.L.A. L. Rev. 1156 (2015).
Allegra M. McLeod, Confronting Criminal Law’s Violence: The Possibilities of Unfinished Alternatives
, 8 Harvard Unbound 109 (2013), available at SSRN), http://crim.jotwell.com/abolition-calling/
- Andrew G. Ferguson, Big Data and Predictive Reasonable Suspicion, 163 Univ. Penn. L. Rev. 327 (2015).
- Michael Rich, Machine Learning, Automated Suspicion Algorithms, and the Fourth Amendment, __ Univ. Penn. L. Rev. __ (forthcoming 2016), available at SSRN.
Hear the term “big data,” and the police are not likely to be the first word that comes to mind. Whether or not you are familiar with the term, the vast quantities of digitized information available today—and the data analytics that are applied to it—already shape your world. The movie recommended to you by Netflix, the date you chose on OkCupid, or the ad you saw on your Facebook feed are all the result of the pervasiveness of big data. That same big data revolution is coming to policing. The NYPD operates a “domain awareness system” that links license plate reader data, “smart” cameras, law enforcement databases, texts of 911 calls, and radiation sensors information from around the city. Police departments in Seattle and Los Angeles are piloting predictive policing software that directs officers to places where crime is most likely to happen in the future. Other law enforcement agencies are considering the adoption of social media software that sifts through tweets, likes, pins, and posts for potential on-line threats. To be sure, the police have always relied upon large quantities of data, but the promise of “big data” lies in its enormous volume, its reach, and the application of sophisticated computer analytics.
In response, there is a small but important emerging scholarship that addresses some of the difficult questions posed by the use of big data by the police. In two recent pieces, both Andrew G. Ferguson and Michael Rich address these issues especially well. While each focuses on different aspects of big data use, and each comes to different conclusions about the Fourth Amendment implications, this pair of articles introduces an evolving set of concerns that should be incorporated into every criminal procedure scholar’s current knowledge.
The legality of an officer’s decision to engage in a so-called stop-and-frisk depends on a finding of individualized reasonable suspicion. That’s the law, of course, but defining the content of reasonable suspicion has always been tricky. As many law professors have lamented, the Terry standard is malleable to the point of being meaningless. To make matters worse, the Supreme Court has repeatedly emphasized that reasonable suspicion is neither a quantifiable nor a scientific concept.
Enter big data. What if the police use big data programs as the basis for stops or frisks? What if, for instance, an officer is alerted by a piece of software that trawls through millions of pieces of data to predict that a person is highly likely to commit a violent crime (based on an algorithm of his social connections, criminal history, and social media posts) in the very place the officer finds him (based on an algorithm using historical crime data)? Should a court uphold a stop and frisk that subsequently results in the discovery of an illegal firearm?
As both Ferguson and Rich point out, the Fourth Amendment fails to provide easy answers. This difficulty arises in part because traditional individualized suspicion is itself a fuzzy concept. And the most relevant analogies to big data programs are limited. For instance, we might compare big data programs to drug-sniffing dogs, since both are instruments for turning raw data into assessments about criminal suspicion. But direct application of the Supreme Court’s drug dog cases poses problems, however, since the programming of a predictive algorithm is far more complex than a dog’s sniff to both the officer who relies on its predictions and the judge who evaluates it (Rich, Pp. 60-62.)
Moreover, Ferguson and Rich arrive at different conclusions as to whether big data alone would provide reasonable suspicion for a stop. Ferguson, who uses a broader definition of big data than does Rich, contends that reliance upon big data could provide a far greater quantity of detailed information than any individual officer or informant coming from a “small data” perspective ever could. Rich, who focuses on predictive automated suspicion programs, argues instead that big data alone is insufficient for Fourth Amendment suspicion. A prediction made by software is incapable, contends Rich, of providing a true totality-of-the-circumstances assessment as required by Supreme Court precedent.
These differences matter less than the broader insights about big data that both Ferguson and Rich identify. The use of big data may provide distinct advantages over traditional policing. Contrary to longstanding concerns that individual officers use proxies like race, class, and neighborhood as the basis for suspicion, big data can bring more accuracy and precision to policing (Ferguson, P. 389.) And if suspicion is increasingly based upon data—rather than human intuition—then we might find a greater emphasis on accountability and transparency in policing as a result (Ferguson, P. 393.)
On the other side of the ledger, big data’s promise of objective analysis may be misleading if, for example, its results rely on mistaken inputs. But finding mistakes in these enormous databases, often handled by countless persons and analyzed by “black box” algorithms may be near impossible. To make matters worse, as Rich points out, the Supreme Court’s expansion of the good faith doctrine in cases like Herring v. United States (2009) establishes enormous obstacles for defendants challenging big data accuracy. How easily can a defendant demonstrate that a stop or frisk in his case was based on “deliberate, reckless, or grossly negligent” misconduct, or “recurring or systemic negligence”? Not very, argues Rich, and as a result, we may end up with a system in which “bad data and benign neglect could flourish” (P. 66.)
To be sure, those programs that will strain current Fourth Amendment doctrine most severely—predictive programs that will alert police to criminally suspicions persons—have not yet become part of ordinary policing. But both Ferguson and Rich agree that these programs are coming, and soon. And as with so many new policing technologies, the law is lagging behind (Ferguson, P. 410.) These two excellent pieces demonstrate the need to think about the inevitable widespread use of big data by the police in a systematic and reflective way, before the reality on the ground gets too far ahead of the law that is meant to govern it.
Cite as: Elizabeth Joh, What Big Data Means for the Fourth Amendment
, JOTWELL (September 15, 2015) (reviewing Andrew G. Ferguson, Big Data and Predictive Reasonable Suspicion
, 163Univ. Penn. L. Rev
. 327 (2015) and Michael Rich, Machine Learning
, Automated Suspicion Algorithms
, and the Fourth Amendment
, __ Univ. Penn. L. Rev.
__ (forthcoming 2015), available at SSRN. ), http://crim.jotwell.com/?p=1018