Yearly Archives: 2010

Is There A Judicial Path Out of Mass Incarceration?

Dec 22, 2010 Jonathan Simon

American state prison systems face a problem equivalent to our once great manufacturing corporations with their unsustainable pension and health care promises to their workers and retirees.  In the case of our prison systems, the promises take the form of long and inflexible prison sentences that commit the states to funding the housing and health care of unprecedented numbers of prisoners for decades to come.  The costs of these promises, combined in many cases with the failure to provide capacity for healthcare delivery to predictably unhealthy populations, is now confronting the states, sometimes with the prodding of the federal courts, with the need to allocate an ever greater share of revenues to their correctional budgets.  In some states the share spent on prisons now exceeds that spent on higher education.  At a time of catastrophic revenue shortfalls because of the economic crisis, these costs are forcing many states for the first time in decades to consider ways to reduce prison populations. 

While this represents a sea change from nearly forty years of political consensus in support of increasing prison capacity and populations, the question of how to do it in a politically viable way now confronts state leaders with a great conundrum.  Unlike the manufacturing corporations that could use the bankruptcy process (or the threat thereof) to wring concessions from workers and retirees and thereby arrive at a sustainable level of liability, states seeking to reduce their incarceration commitments face the politically hazardous task of changing sentencing or parole laws after decades of telling voters that more prison time was necessary for public safety.

Cecilia Klingele’s article is one of the first law review articles I have encountered to directly address this new conundrum rather than treating sentencing policy from a universal and nonhistorical perspective.  Klingele has absorbed the lessons of the politics of penal populism and is seeking to develop legal strategies for dealing with it.  This article offers an incisive and convincing critique of the currently preferred path being taken by the states and offers a provocative and promising alternative. 

The preferred path forward in most states is to find ways to reduce the prison population through the back-end, i.e., by various adjustments to parole release and revocation policies that increase the number of prisoners being released before the end of their sentences and reduce the numbers being returned for parole violations.  This approach has appeal to most politicians because it avoids or at least delays having to engage the public in an explicit discussion of who needs to be in prison and for how long that changes in front-end sentencing policy would require upfront. 

Klingele argues that current strategies are likely to be insufficient and risk creating conditions for deeper levels of the kind of public fear and mistrust that led to mass incarceration in the first place.  She points out that back-end release policies place decision making power over the length of prison sentences in the hands of correctional agencies or other administrative bodies accountable to the governor.  The public sense that administrative sentencing lacked fairness and sufficient concern for community safety is part of what led to the great wave of enhanced and inflexible sentencing rules beginning in the 1970s and 1980s. Because politicians have not engaged the public in reassessing the need for so much imprisonment and are promoting these sentencing reductions in the face of massive budgetary crises, the public may believe that community safety is being undercut and thus the potential for backlash is very real.

Criminologists have recently begun to debate whether the answer to mass incarceration is to find a way to depoliticize sentencing or instead to try and create a new politics of punishment that is less committed to imprisonment.  In their important book, Punishment and Democracy: Three-Strikes and You are Out in California (2001), Frank Zimring, Gordon Hawkins and Sam Kamin made the provocative suggestion that punitive and inflexible sentencing laws like California’s 3-Strikes law, demonstrated the need to remove political control from prison sentences, much as monetary policy is insulated from political control through institutions like the Federal Reserve.  More recently, UK criminologists Ian Loader and Richard Sparks in their book, Public Criminology? (2010), have argued that insulating penal policies from democratic politics is an unacceptable loss to democratic legitimacy and that criminologists convinced of the perniciousness of our current prison policies need to engage the public in producing a new less harsh politics of crime control. 

Klingele’s article offers an intriguing alternative to cut through the dilemma of democracy and punishment.   Judicial sentence modification, is a traditional if traditionally little used mechanism that is insulated from direct politics but transparent and more likely to convince the public that community safety is not being sacrificed to administrative demands for budget cutting.   This approach allows the same court (although not necessarily the same judge) that originally sentenced a convicted offender to prison to revisit and potentially modify the sentence.  While the practice has deep historical roots, it is not used by many states and has been used very narrowly in those states that permit it.   Originally this was recognized as an inherent common law power of courts over their own sentence, but tightly restricted in the amount of time that can be allowed to expire (usually the sentence has to be altered in the same judicial term).  Some states have broadened the time frame through common law elaboration to allow motions to modify the sentence even years later in a form of “bench parole.”  Other states and the federal government provided statutory authorization for judicial sentence modification, but generally only within a relatively short time and generally only based on “new evidence” that does not include the institutional behavior of the prisoner.  In at least one state however, Maryland, a recent statute has expanded the time for filing to five years after the original sentence and further allows the court to consider not just the original record, but new information including the prisoner’s record of compliance.

Klingele argues that more states should follow the Maryland example and expand judicial sentence modification into a broader and more generalized option.  On her account sentence modification offers a number of advantages over administrative back-end mechanisms. Judicial modification would take place in open court, with notice to and participation not only by the prosecution and the victims (who are generally notified of parole hearings), but to some extent the general public as well.  Moreover, trial courts are part of the community whose safety is at stake in release decisions.  They are not subject to control by the executive branch and are institutionally oriented toward individual justice rather than budgetary considerations.  But while they improve upon administrative authorities in terms of transparency and the consideration of individual factors and local concerns, they are institutionally designed to be deliberative and focused on justice not responsive to populist demands for punitiveness.

There are good reasons to be skeptical that this approach will be sufficient by itself.  In many states judges are elected and may well feel politically exposed by having to reconsider sentences.  Sentence modification on a case-by-case basis is likely to be a slow and incremental way to reduce prison populations.  Moreover, it leaves intact the front-end sentencing laws and their embedded assumptions about the need for so many people to go to prison in the first place.  However Klingele deserves great credit for engaging in the practical question of how American states can break out of their currently inflexible commitment to mass incarceration without alienating the public.  Her approach is worthy of serious study by state policy makers.  While it may leave the bulk of the problem of over incarceration for front-end sentencing reform, the very practice of judicial modification, once started, may help create the kinds of narratives about prisoners and public safety that will in turn help produce the new politics of punishment we need for really substantial change.

A Feminist Critique of Propensity Evidence Admitted Against Indians in Sexual Assault and Child Molestation Cases

Nov 17, 2010 Myrna Raeder

Changing evidentiary policy to make it easier to convict rapists and child abusers has been high on the agenda of many feminists who have decried the difficulty of holding such perpetrators accountable, even when they commit serial crimes. In 1994, in a well documented trade, Congress adopted Federal Rules of Evidence 413-415 as the quid pro quo for securing the deciding vote necessary to pass the then pending Violent Crime Control Act. Rules 413-414 specifically permit propensity evidence in sexual assault and child molestation cases. Professor Aviva Orenstein investigates how these rules have been (mis)applied in federal court. Her thought-provoking essay decries the disproportionate use of the rules against Indian defendants, and suggests the repeated presence of negatively stereotyped Indian defendants may actually help perpetuate the myth that rapists are easily identified “others,” an attitude that makes acquaintance rapes incredibly difficult to prove. She also suggests that stereotyping reinforces the propensity evidence and may lead judges to more willingly accept character evidence beyond sex crimes,

Orenstein has been influential in applying feminist jurisprudence to evidentiary issues, not only concerning topics that are associated with women’s issues such as rape and domestic violence, but also in contexts where the link is less obvious, such as apologies by doctors. Previously, she critiqued the use of propensity evidence in No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49  Hastings L.J. 663 (1998), suggesting such evidence violates feminist values and presenting alternative evidentiary solutions to strengthening the government’s case. Like her, I view myself as a feminist who is sympathetic to the plight of victims of rape and child abuse, while remaining sensitive to issues of fairness and constitutional rights of criminal defendants. Thus, I knew this article would analyze difficult questions such as whether stereotyping of Indians¹ is encouraged by the propensity rules, and why these rules do not necessarily further feminist goals.

The adoption of these rules was decidedly unpopular with most academics (including me) and federal judges. The Federal Judicial Conference even wrote Congress disapproving the lifting of the prohibition against character evidence. The hostility to character evidence is based on the fear that it will shift the jury’s focus from what a defendant did in the specific case to who the defendant is. The twin evils of character evidence are typically described as overvaluation of previous bad acts because jurors assume if the defendant did it once, he must have done it again, and devaluation of the defendant’s presumption of innocence because he is a bad person.

While evidence rules concerning the introduction of prior acts on such issues as intent and lack of consent have always been applied flexibly in rape and child sexual abuse cases, and some states had retained a common law “lustful disposition” exception in child molestation cases, Rules 413 and 414 dropped any pretense that such evidence had to be narrowly construed or that jury instructions would constrain their application. Several scholars argued that such a giant step should not be taken in light of the relative rarity of sex crimes in federal court. In other words, the only sex crimes not prosecuted in state court were those committed on federal land or in “Indian Country.” None of these arguments dissuaded the proponents of the rules, who frankly admitted that they were drafted as a model for states to follow, not merely to govern the few cases that fell within federal jurisdiction.

Orenstein sets the stage by discussing what she calls the application of “Rule 403 lite,” the rule that ostensibly giving judges the power to exclude propensity evidence when unduly prejudicial. In actuality, she finds federal judges rarely preclude evidence of other sexual acts because they require defendants to demonstrate more than mere propensity to establish undue prejudice since the policy behind the rules is to highlight the probative value of propensity even when the previous acts did not result in conviction. Thus, undue prejudice must typically be supplied by the graphic nature of the previous act, or its complete dissimilarity to the charged crime. Ironically, due process attacks on these rules have failed in federal courts based on the availability of Rule 403, despite its eviscerated scope in the Rule 413-414 context. The disproportionate impact of these rules making conviction of Indians charged with sex crimes easier has been viewed by courts as a “quirk of federal jurisdiction” that cannot satisfy an equal protection challenge due in part to the lack of intentional discrimination.

Orenstein’s survey of the Rule 413-414 jurisprudence found approximately 120 cases, with about half arising from “Indian Country” jurisdiction, of which the vast majority affirmed the admission of propensity evidence under the abuse of discretion standard. Half of the remaining cases were in military court. She observes that Indians are often identifiable by their names in the federal cases, and their location in Indian Country is mentioned in the procedural history, unlike state cases where the ethnic or racial background of the defendant is not typically relevant. Orenstein does not disguise her general distaste for the propensity rules, but is particularly troubled that the jurisdictional impact on Indians is “unfair and unseemly” given that these propensity rules have not generally been adopted by the states. As a result, Indians are disproportionately subjected to the introduction of character evidence, leading to convictions in some cases where the evidence is otherwise weak, even when the previous molestations allegedly took place as long as 20 years earlier. She argues that this is a serious issue for evidence teachers who should acknowledge that Indians are appearing as child molesters with some regularity in the casebooks and class discussion. This suggestion by itself is an eye-opener that confirms the value of this article.

Orenstein views propensity evidence as reinforcing negative stereotypes of Indians as a disadvantaged and historically despised minority, thereby distracting the jury from the facts of the case. She considers propensity evidence as more problematic than admission of bad acts admitted under Rule 404(b) for issues other than character, since Rules 413-414 directly encourage the jury to think in terms of character. Thus, such evidence emphasizes the otherness of a group that has history has portrayed as “dangerous, drunk, and uncivilized.” Moreover, patronizing attitudes such as “white man’s burden” may be invoked to “civilize” Indians since many child victims are members of the defendant’s extended family, a domestic arrangement that is sometimes denigrated in the decisions. Similarly, her examination revealed gratuitous references to signs of poverty as well as negative views of mothers whose children were molested. She also found excessive references to alcoholism beyond anything relevant to describe the crimes. Indeed, Orenstein identifies some blatant examples of such stereotyping that she fears makes it easier for jurors to ignore the individual defendants in favor of adopting heuristic shortcuts that may infect the deliberative process by encouraging jurors to discount evidence that contradict negative stereotypes.

What I particularly appreciated about the article was that Orenstein did not downplay that the victims in these cases are Indian women and children who are more likely to be raped or sexually assaulted than other females in the United States. She explains that Indian women also face stereotyping that can lead to discounting their testimony, and discusses their no-win dilemma that can result in their complaints further stereotyping their entire culture. Importantly, Orenstein suggests why propensity may harm victims. She cites reports implying prosecutors appear reluctant to bring charges in sexual assault cases arising on reservations, and argues that the propensity rules may furnish a convenient reason for prosecutors to refuse cases without evidence of prior sexual crimes.

Finally, she contends that overrepresentation of Indians in federal sex crime cases may reinforce propensity thinking more generally. As previously mentioned, federal judges may find character evidence more appealing since its repeated application to negatively stereotyped Indians reinforces the view that sexual abusers do not come from every segment of society, but rather are easily identified as “others.” Victim advocates have long noted that this myth is a real hindrance to changing attitudes towards acquaintance rape, since those defendants rarely fit the stereotype of sexual predators. Thus, Orenstein’s argument turns propensity on its head, harming rather than helping rape victims because it can perpetuate the myth that sexual perpetrators are identifiable monsters, not otherwise ordinary men. Orenstein concludes by taking a quick look at propensity in military decisions. She notes that these cases appear to be somewhat less accepting of propensity evidence, but the fact that they tend to involve rape of adults, while Indian case mainly involve children may account for some of the difference, and she urges more research on this topic.

While we may never know how many cases result in acquittals when federal judges exclude propensity evidence, or conversely how many pleas result because of propensity evidence, that does not diminish the considerable presence of Indians in the propensity jurisprudence. Similarly, even if Orenstein tends to paint the worst case scenarios, they are disproportionately occurring to Indians. Most significantly, in a world where feminism is often portrayed as a monolithic movement, she offers a more nuanced feminist approach to evaluating evidentiary policy that takes both victims and defendants into account.

Governing Through Sex Crimes?

Oct 22, 2010 Angela Harris3 comments

Twenty years or so ago, when I was a baby law professor, I asked a senior critical legal studies scholar for promising areas to write about, and he warned me against taking up criminal law. The problem with criminal law and procedure for a critical thinker, he told me, is that it arrives pre-deconstructed, so to speak. No room for the kind of clever unveiling of buried fundamental contradictions that, one hoped, would be rewarded with tenure. Whether one adopted the political theory language of Carl Schmitt’s “state of exception” or the sociological language of Albert Cohen’s theory of “moral indignation,” American criminal law and procedure, like American Indian law, was driven by extra-doctrinal pressures that were painfully obvious to all.

Twenty years later, this is still true. And a lot of criminal law and procedure scholarship is incredibly boring for this reason: It pretends that doctrinal craft and/or moral theory actually matter. The work that isn’t boring, however, situates criminal law and procedure in its cultural and political context; and the article I like a lot this month is an excellent example, providing a useful guide to an ongoing crisis in American law and culture.

The crisis is our national moral panic about sexuality, especially sexuality involving children. Corey Rayburn Yung has written several doctrinal articles on this topic, and he also writes a blog on sex crimes. In a forthcoming article, The Emerging Criminal War Against Sex Offenders, Yung pulls together developments in a number of doctrinal areas and concludes that the United States is in the process of launching a “war against sex offenders,” similar to the War on Drugs (or the War on Terror, for that matter, but Yung does not discuss this point). Criminal justice policy becomes “war,” he argues, when several conditions are met. First (this point is only implicit in Yung’s argument), it becomes a national political and social issue, instead of being left to state and local governments. The federalization of sex offender law began, Yung argued, in 2006 when President George W. Bush signed into law the Adam Walsh Child Protection and Safety Act, which among other things made it a crime to fail to register as a sex offender and created a new federal apparatus, SMART, to enforce the statute.

Two other conditions that distinguish a criminal “war” from ordinary criminal justice policy, for Yung, are the marshaling of extraordinary resources to pursue the campaign and an investment in what he calls “myth creation” (others might call it “ideology”). Yung runs the numbers and asserts that to date, federal resources allocated to the crackdown on sex offenders exceed those allocated to drug enforcement just before President Richard M. Nixon formally announced a War on Drugs. He also points out the most striking characteristic of the national panic about sex offenders – our extraordinary cultural interest in them, represented in everything from long-running and popular television dramas like Law and Order: SVU, to television talk shows (Oprah alone has devoted countless hours to the harms of child sexual abuse), to the many state criminal statutes named after individual child victims. This intense interest, moreover, is sutured to widespread misconceptions, such as the assumption that strangers luring children over the Internet pose a significant danger; that “child molesters” are hopeless recidivists who can never be successfully rehabilitated but only incapacitated by long prison offenses and continuous post-prison surveillance; and that “sex offenders” constitute a homogenous category of people. Most of all, the war on sex offenders is fed by the belief that the sexual abuse of children is not only morally reprehensible but irreparable: Destroying innocence, it destroys lives. Being sexually abused is not only bad but sinister, a “fate worse than death” as Yung puts it. This predominance of fantasy over reality creates the problem of good money thrown after bad. Scholars use the pejorative term “moral panic” precisely because such outbreaks of anxiety do more harm than good; public policy based on wrong assumptions is pretty much guaranteed to be both extraordinarily expensive and largely ineffective as millions of dollars are thrown at the wrong target.

Perhaps the most important indicator of when a criminal justice policy initiative has become a full-scale war, however, is when what Giorgio Agamben, following Carl Schmitt, calls a “state of exception” is created: the lifting of normal prohibitions on state power in the name of protecting the state. A nation at war is assumed to be in a state of emergency, and ordinary civil liberties, it is argued, must be curtailed for the sake of national survival. Yung argues that the constitutional victims of the war on sex offenders so far have included the Ex Post Facto clause, the Commerce Clause, the Sixth Amendment right to confront witnesses, and the Due Process Clause right to notice of criminal regulation. This aspect of criminal wars is the most worrying for people who care about the rule of law. The power of the state, not only to take lives but to destroy them (as in the many sex offenders who have been effectively “banished” from their communities), is immense. Once rolled back, civil rights and liberties are difficult to restore. And “mission creep” is endemic to large-scale, well-funded, and popular institutional initiatives. Pretty soon, teenagers “sexting” one another are going to find themselves prosecuted as sex offenders. Oops! That’s already happened.

Yung adroitly synthesizes recent doctrinal and political developments, bringing us news from the front lines of the war. To truly get a handle on the war against sex offenders, however, even more background is necessary. Polemicist Laura Kipnis examines the strange convergence of interest between law enforcement and child pornographers in her 1999 book Bound and Gagged: Pornography and the Politics of Fantasy in America. For deeper historical context, read Philip Jenkins, whose 1998 book Moral Panic: Changing Concepts of the Child Molester in Modern America identifies three distinct twentieth-century panics over child sexual abuse, peaking in 1915, 1950, and 1985. At the conclusion of his book, Jenkins suggests that the most recent panic, rather than ebbing, has become “perpetual.” Taking “perpetual panic” as the title for his “editor’s observations” on a Federal Sentencing Reporter issue on sex crimes, Michael O’Hear has argued that one reason the cultural hysteria over child sexual abuse and thus the war on sex offenders has endured, while the war on drugs seems to be slowly winding down, is the intertwining of concern about child sexual abuse with the victims’ rights movement. The victims’ rights movement, in turn, has borrowed moral credibility and the language of therapy from the feminist movement. O’Hear’s provocative suggestion takes us to another article I love but have no room to discuss here: Aya Gruber’s Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581 (2009). Just trust me: You should read it.

Yung brings us an important update and some historical perspective on a troubling development in contemporary American criminal justice. His article leads me to wonder what a critical legal scholar might ask. Is the condition of “moral panic” an exception in criminal justice? Or, as my colleague Jonathan Simon suggests, is governing through crime – or “criminal wars” – the new normal? Yung’s article also leads me to wonder, once again, about the meaning of our national obsession with child sexuality. Is it just me, or is there something a little weird going on? Yung reminds us, finally, that the most interesting work in criminal law and procedure does not stay doctrinal, but probes the connections among law, politics, and culture.

Shining the Light on Negligence

Oct 8, 2010 Kimberly Ferzan1 comment

I’m no fan of punishing the negligent.  Here are a few reasons.  First, when a negligent actor fails to notice, remember, and the like, she lacks the requisite control over her failure.  Her consciousness is not directed to the risk, and thus, she can control her failures only indirectly by, say, taking a prior action to remember.  Second, the reasonable person strikes me as a worrisome construct.  How do you craft the idealized vantage point?  Third, because we are always forgetting, failing to notice, or underestimating risks all the time, these behaviors exhibit no moral defect.  These failures have myriad causes, including the lack of background beliefs, momentary or permanent incapacities, or lack of motivation.  And, we need arguments for why those prior failures are blameworthy.  Notably, although some criminal law theorists defend punishing the negligent, almost no one wants to punish every actor who falls below some objective standard.  Rather, proponents often seek to narrow negligence’s reach to only the “culpably indifferent” and not the stupid and the clumsy.  Yet, we are not given a fair basis for drawing this distinction.

Enter “Who Knew?”  George Sher’s book defends that we can be responsible without being aware.  Although I do not believe that this book ultimately undermines my concerns about punishing the negligent, it refines the state of the debate.  It is beautifully argued and carefully constructed.  Criminal law theorists truly ought to read this book.    

Sher’s foil is the “searchlight view.”  When an agent performs an action, she is conscious of some potential consequences – those consequences are the ones on which the beam of light shines.  However, the beam may also be too dim or too narrow to illuminate all the consequences and aspects of the act.  The searchlight view rejects that we can be responsible for those aspects and consequences of which we are not conscious (or at least passively aware).

Sher believes this view is popular but wrong.  He introduces a range of hypothetical cases to reveal our “ground-level judgments” are inconsistent with the searchlight view.  For example, he offers Alessandra, who picks her kids up from school but leaves her dog in the car, despite it being a hot day.  Although this is usually a quick errand, Alessandra faces problems with her children when she enters the school and forgets the dog.  After a few hours, the dog is unconscious in the car.  We also meet Scout, who while babysitting a colicky baby, decides to calm the baby with fruit juice and vodka.  Scout does not know alcohol is bad for babies.  The child is rushed to the hospital for alcohol poisoning.  Sher argues that we blame both Alessandra and Scout. 

Sher then returns to the “searchlight view.”  His central argument against the view is that it gains its appeal from looking to our practical reasoning, the first-person standpoint about what we ought to do.  Sher argues, however, that responsibility is not comprised of only this view, but rather, that we make responsibility attributions from the third-person standpoint and we look at actions retrospectively.  Alessandra may forget the dog is in the car, and thus this fact has no bearing on her practical reasoning.  But, we can (and she can) look back at what happened, and say that she is responsible for the harm to her dog. 

Sher also takes on the argument that it is unfair to hold people responsible when their lack of foresight deprived them of the requisite control.  Sher rejects this argument because agents are “constantly being influenced by normative demands of which they are not conscious at all.” (66).  These demands range from the rules of logic and physics to situations in which individuals do not even consider lying or act kindly reflexively.  In these cases, the demand’s reach extends beyond the conscious self to the agent’s cognitive and motivational systems.

Sher ultimately defends a capacious view of responsibility.  He claims that we are responsible when are actions fall below an objective standard and our unawareness is “caused by the interaction of some combination of [the actor’s] constitutive attitudes, dispositions, and traits.” (p. 88).  In reaching this conclusion, Sher moves through two problems that perplex criminal law theorists:  can an individual be responsible for what she “should have known?” and how and when should be individualize the reasonable person test?

Sher analyzes the “should have known” framework.  This is an extraordinarily careful chapter and should be required reading.  Sher searches through different formulations of the “should have known” standard to see how and whether we can tie this abstract objective standard to the agent in a way that makes it appropriate to say that failing to meet the standard brings the agent “into close enough relation to its wrongness…to justify us in …punishing [him]….” (76).  Ultimately, “should have known” is not enough; it substitutes one standard (the underlying wrongfulness of the behavior) for another standard (what the actor should have known) but fails to connect either demand to a fact about the agent.

Sher therefore looks to facts about the agent that will supplement the objective standard.  Sher argues that “a responsible agent is best identified not only with his subjectivity or rationality but also with their causes.” (121).  This is a very broad view of the “responsible self.”  This leads to the question of what counts as the agent (the root of responsibility) and what counts as the situation (the facts which must be taken into account).  Here, Sher, briefly taking on some feminist legal literature, defends a fully objective view.  The answer to the question is that all traits that belong to the agent and make her who she is are not aspects of the situation that we ought to individualize.  However, to curb concerns that, say, the blind cannot see and the paranoid cannot act rationally, Sher introduces a capacity requirement.   The epistemic requirement of what one should be aware of is actually an “ought” from morality.   Hence, when an agent lacks the capacity to comply, morality cannot mandate otherwise.  An agent only “should have known” if he “could have known.”

At the end of the day, I’m still worried about punishing negligent actors.  First, I am not quite sure how we are to parse the relationship between responsibility and culpability and blameworthiness.  When Alessandra takes responsibility for harming her dog, in what sense do we blame her?   Given that Sher allows responsibility attributions for any deviation from the reasonable person caused by Alessandra’s causal systems, are we blaming her character?  Her action?  Her constitutive make up?  The mechanistic account of responsibility that Sher offers seems to me to be a far cry from what criminal law ought to care about.  In addition, Sher relies on causal mechanisms and moves the analysis of negligence to an analysis quite on par with the free will/determinism debate.  Our analysis is shifted far back to reason responsiveness.  But there are questions here, too.  What explains the difference in how we treat mistakes of fact and mistakes of morality?  (Consider the difference in punishment between the actor with the “unreasonably” mistaken belief that the gun was not loaded and the “unreasonably” mistaken belief that murder is not wrong.)  Where does this leave us?  There is much work left to be done, but Sher certainly shines the searchlight on the where we ought to look for answers.

“Legal epistemology is ninety per cent quantitative. The other half is qualitative.” – Yogi Berra

Sep 15, 2010 Dan Markel

The last couple years, I’ve developed a bit of an SSRN-induced brain crush on epistemologist Larry Laudan, who I’ve not met before, but whose recent work ought to be pressing the criminal justice commentariat to re-think a lot of common assumptions when we talk about trade-offs in the criminal justice system between Type I errors (false convictions) and Type II errors (wrongful acquittals or non-convictions of factually guilty persons).

In particular, the work Laudan’s been doing with Ronald J. Allen (Northwestern) is evidence of toil along the same rich vein of material earlier espied by UVA’s Darryl Brown in his important work on cost-benefit analysis in criminal law, a field that also incorporates the controversial Sunstein-Vermeule death penalty paper from a few years back. Here’s a very short introduction to Laudan’s intellectual agenda that he put up entitled “The elementary epistemic arithmetic of criminal justice.” But in this JOTWELL review, I advert your attention to two pieces Laudan wrote with Allen. The first one, “Deadly Dilemmas,” is a sharp short essay written as part of a symposium at Texas Tech. A more recent paper, entitled “Deadly Dilemmas II: Bail and Crime,” extends to the realm of pretrial release the framework of looking at procedural rules and their real-world costs and tradeoffs. By advocating a more restrictive approach to pretrial release, this second paper also suggests a practical and “modest” proposal to our policies across the country in order to bring down the moral costs of so many possibly preventable serious crimes.

The core of their work is to show us with greater precision what we are doing when we consider risk-risk tradeoffs in the rules of evidence and criminal procedure. Many people think these tradeoffs should be done to minimize Type I errors of mistaken punishment. For example, we all teach our students in criminal law about Blackstone’s maxim, ie., that it is purportedly better that N guilty (e.g. 10) persons go free to save an innocent person from wrongful punishment. But as Allen and Laudan carefully show, Blackstone’s maxim alone is radically insufficient as a guide for policy design. While Blackstone’s maxim is consistent with accurate results in any set of 100 cases, it is also consistent with mistakes in 99 out of 100 cases. What? Yes: “imagine that there are 9 wrongful convictions out of every 100 cases that go to trial and that to ensure the number goes no higher the system is structured to generate the requisite 90 wrongful acquittals. In that case, a perfectly Blackstone compliant system generates mistakes in 99 out of 100 cases that go to trial.”

Now it’s true that few people look to Blackstone as the principal architect for our current institutions, but it’s not well recognized what the costs of our commitments to Type I error reduction are. And in this respect, Laudan and Allen try to provide some sense of what those costs are to average citizens, especially in the context of serious crimes (those involving homicide, rape, aggravated battery and armed robbery). Based on some earlier figures, they write that “the chance of being wrongfully convicted of a serious crime over one’s lifetime hovers at most around 0.25% whereas the chance of being the victim of a serious crime over one’s lifetime is somewhere around eighty-three percent… This does not require that one think the two [risks] are equally harmful; it requires only thinking that being a victim of a wrongful conviction is not 332 times as bad as being a victim of a serious crime. Perhaps it is better to be brutally raped or beaten than to be wrongfully convicted of doing so, but we doubt many would think it better to be brutally raped or beaten 332 times rather than wrongly convicted once.”

Even though Laudan and Allen arrive at these numbers with what they regard as conservative estimates, some scholars will disagree with the basis for these numbers. I’m not sure if they are within the correct order of magnitude but they seem plausible enough to start a conversation. And once we’re wearing our social planner hat, trying to figure out how to balance these competing risks, it is indisputably useful to have a good sense of what these competing risks are. Laudan and Allen provide some good reasons for thinking that we should not (legislatively or constitutionally) enshrine rules that focus inexorably on “innocentrism.”

But who are Laudan and Allen writing for? I dare say I think it’s for legal academics (and perhaps journalists) prone to focus on the visible Type I errors. After all, as one friend of mine noted, it’s not as if crime control is a dead topic among policymakers: over the last forty years, we’ve seen significant if not staggering amounts of resources devoted to investigation, enforcement, and incapacitation. And while arguments persist regarding whether these social investments caused or (even) co-incided with the substantial crime drops over the last few decades, there is certainly no public clamoring for heightened criminal procedural protections – especially outside the death penalty context. To be clear, that doesn’t undercut the significance of the intervention I think Allen and Laudan are making — hence my desire to promote their work via JOTWELL. But my sense is that there are at least two areas that could benefit from some discussion or amplification.

First, Allen & Laudan’s number-crunching and guesstimating don’t seem especially sensitive to the distributive patterns of these competing risks of being a victim of a Type I error or a Type II error. Perhaps, in light of the prevalence of intra-racial crime, there’s some story that might justify this silence. After all, if it turns out that the average person of color in the inner-city faces a far greater likelihood of being the victim of a serious crime than being falsely convicted of a serious crime, she might have good reason to see various criminal procedure and evidence rules shift in the direction Allen & Laudan propose. Something like this story seems to animate, for example, the support Professors Dan Kahan and Tracey Meares once gave to the idea of democratizing the rules of criminal procedure. On the other hand, if that story is not true, and in fact the benefits and burdens are not borne with rough equality, then something more needs to be said before we all embrace the direction of these prescriptions.

The other thing that needs further attention in these papers is the nature of the risk associated with the kind of crimes that one might endure as a victim. To my mind, the analysis in both papers is not quite sufficiently granular. For example, at times Allen & Laudan focus on the gravity of a Type II error by noting the probability that the person who benefits from that error will commit “serious crimes” subsequently. The problem is that not all “serious crimes” are equal, a point that they acknowledge but don’t take to heart fully. Their category of serious crime includes homicide and rape, but also armed robbery or aggravated assault. All of these crimes are serious and no one seeks out the chance to be the victim of any of these crimes. But if the comparison is between being false convicted of any of these crimes and being a victim of an armed robbery (which may not cause any physical harm) or an aggravated assault, well, I suspect maybe the suffering associated with being wrongly convicted can be far more lasting and difficult than that associated with being a victim of an armed robbery.

Whether it’s 332 times worse, I’m not sure, but I can well imagine that some would say they would rather have the reputation and experience of being a crime victim than that of being an alleged criminal. In other words, people might sooner suffer an aggravated assault or armed robbery than be falsely convicted of those particular “serious” crimes. Not because those crimes are easy to bear generally, but because the losses from those crimes may be insured and because the experience of those crimes is, from a victim’s perspective, likely to be short. If we are to credit the studies of hedonic adaptation, one can go about one’s life afterward, in many cases, relatively normally. By contrast, a false conviction for assault or armed robbery could be much more lasting in terms of duration, stigma or other hardships (including collateral consequences imposed by the state and the incidental but foreseeable consequences contingently imposed by third parties) placed upon the falsely convicted defendant.

Moreover, and just as a practical matter, persons who are repeatedly victimized by serious crime are likely to become “hardened targets” – they will adopt prevention measures (moving neighborhoods, staying indoors, carrying weapons) that are likely to displace the prospect of crime onto others who might not have been so repeatedly victimized.

To be sure, when looking at rape and homicide, many would properly view being victimized of those crimes as devastating, even if not identical to each other. But being falsely convicted of rape or murder would also be incredibly difficult to bear. So my sense is that the conclusions Laudan and Allen draw would be more powerful if we could isolate the nature of the risks being compared in a more particular way. What Laudan and Allen’s risk analysis should look at is the relevant risks associated with each of those crimes if we are to be persuaded both that the risks we are trading off are remotely commensurable and that we need to contemplate more procedural rule changes, such as the sensible ones they propose in the context of pretrial release.

In any event, Laudan and Allen’s work is a bracing look at the trade-offs we are making but not examining closely enough—every teacher of criminal law and procedure should read and teach these pieces to their students, but they should be the beginning of the conversation, not the end. And to that effect, readers might also be interested in Michael Risinger’s response to these articles, entitled Tragic Consequences of Deadly Dilemmas: A Response to Allen and Laudan.

P.S. The title’s phrase is not really Yogi Berra’s but Larry Laudan’s.