What Big Data Means for the Fourth Amendment

Jan 6, 2016 Elizabeth JohAdd a Comment

Elizabeth Joh

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.

If We Shouldn’t Punish Psychopaths, May We Still Blame Them for Bad Character? Perhaps Not.

Nov 27, 2015 Kimberly FerzanAdd a Comment

Kimberly Ferzan

Dana Kay Nelkin’s recent work brings together an important dilemma in the criminal law and a key distinction within it. The result is that our understanding is furthered on both scores. The dilemma is psychopathy. Psychopaths lack affective capacity. They cannot appreciate the wrongfulness behind criminal law’s prohibitions. Without this ability, is it fair to criminally blame and punish them? Although the Model Penal Code specially exempts psychopathy from its definition of mental illness, many theorists believe that appreciating moral reasons is a prerequisite to just punishment.

Now, for the distinction. One move that some criminal law theorists will make is to argue that although we have a judgment that someone has a bad character, the person has not committed a culpable act and hence cannot be punished. If a person enjoys killing and becomes an executioner, not because she wants to inflict deserved punishment but because she wants to kill, ought we to think that she is unjustified or instead that she is just a bad person behaving justifiably? If a driver fails to notice a pedestrian because he is checking out his reflection in the mirror, is this vanity criminal negligence or bad character? The distinction between criminal blaming and character assessing is one way that we can sort cases that seem bad in one respect and yet not properly the object of criminal sanction.

Nelkin’s task is to take up philosopher Gary Watson’s recent employment of this distinction with respect to psychopaths. To Watson, we blame the psychopath for his cruelty although we do not hold him morally accountable. The former character assessment is “attributability” responsibility, whereas the latter responsibility (and the kind required for criminal responsibility) is “accountability” responsibility. Watson’s critics to this point have contended that attributability responsibility is all that is necessary for moral (and therefore criminal) accountability. The critics offer the example of the “incorrigible” slave owner who cannot appreciate the moral demands made by his slaves. Surely, say the critics, the slaves will not only find the owner has a bad character but is also accountable for his actions.

Nelkin believes that the unification of attributability and accountability can be resisted and that Watson’s dichotomy rightly classifies the slave owner case. But more importantly, she thinks both sides of the debate are wrong. She denies that psychopaths have bad character.

At first it seems extremely implausible that a psychopath could have anything but bad character, and in particular, it seems hard to believe that we cannot blame a psychopath for being cruel. Some psychopaths take pleasure in others’ pain. If that is not cruelty what is?

The argument I found most compelling was the argument from kindness. Nelkin asks the reader to imagine a creature who simply enjoys seeing others have a good time. The creature does not take others’ interests as reasons for his actions. If he furthers their enjoyment, it is to further his ends, not theirs. Nelkin argues that, whatever we may wish to say about this creature, we would be reluctant to say that he is kind. The inability of the creature to appreciate these positive reasons prevents our characterization of the conduct as kindness. So, too, Nelkin argues that there exists “a considerable gap between lack of respect on the one hand and disrespect on the other.” (P. 366.)

But if the psychopath is not a case for the distinction Watson draws, is there a class of people to whom his distinction applies? Enter the slaveowner. Nelkin maintains that these individuals if they truly cannot grasp the moral demand that is being placed on them cannot be deemed accountable. However, because they have the capacity to appreciate moral demands—a capacity the psychopath lacks—we can still attribute their wrongful conduct to them, and in this sense, they can be blamed for their characters.

There is much more to Nelkin’s carefully argued work. It has the subtlety of a skilled philosopher, and she masterfully distinguishes different judgments about individuals that our intuitions may run together. Whether one wants to think further about psychopathy or to explore the distinction between holding someone accountable and blaming him for his character, reading Nelkin’s piece is sure to pay dividends.

Discipline and Fine

Oct 23, 2015 Angela HarrisAdd a Comment

Angela Harris

The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.

But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice.

Natapoff begins her argument by distinguishing “decriminalization” from outright “legalization.” She observes:

Commentators on the left and right, the ABA, the NACDL, and numerous scholars have called for decriminalizing minor offenses as a solution to a wide array of systemic problems. This consensus is fueled in part by a special legal feature of misdemeanors: minor offenses that carry no possibility of jailtime do not trigger the Sixth Amendment right to counsel. Accordingly, eliminating incarceration for misdemeanors looks like a kind of win-win: it relieves defendants of the threat of imprisonment while saving the state millions of dollars in defense, prosecution, and jail costs. Motivated by persistent fiscal crises, many states have accordingly been experimenting with the decriminalization of various crimes, most prominently marijuana possession but also driving on a suspended license, traffic and other regulatory offenses. (P. 1058.)

Yet, though the scaling-back of what academics have taken to calling the “carceral state” is a welcome shift away from the recent, seemingly unstoppable push for building more and more prisons and lengthening sentences that so plagued American politics and society, Natapoff reminds us that reducing felonies to misdemeanors does nothing to disrupt the power of police to harass, abuse, beat up, or even kill suspects on the street, or “the usual panoply of burdens [incident to this power,] including arrest, probation and fines, criminal records and collateral consequences.” (Pp. 1058-1059.) Even civil infractions that cannot serve as the basis for arrest may “derail a defendant’s employment, education, and immigration status, while the failure to pay fines can lead to contempt citations and incarceration.” (P. 1059.) And, Natapoff emphasizes, precisely because they are not technically crimes, infractions “can be imposed on offenders quickly, informally, and without counsel, so that the standard procedural safeguards against wrongful conviction and overpunishment are lessened if not eliminated altogether.” (P. 1059.)

This leads Natapoff to a larger point: if it takes hold in a big way, this sort of decriminalization may signal an incorporation of the carceral state by the poverty-industry state. Misdemeanors and civil infractions are cheaper for government to enforce than felonies, making possible a classic “net-widening” effect, “extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” (P. 1059.) Combine net-widening with the continuing crisis of chronically underfunded government services, and state and local agencies may come to lean ever more heavily on the fines and fees they collect from small-time criminal offenders. As the Washington Post recently explained, “some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts.” Natapoff notes that such policies in effect serve as a regressive tax—and that nothing in this dynamic is colorblind.

Nor, in the end, would replacing mass incarceration with widespread “black taxes” even necessarily scale back the moralism that has long infused American criminal justice. In an important new ethnography, Nicole Van Cleve of Temple University explores the workings of the Cook County, Chicago criminal courts. Her research details a widespread hostility and disdain expressed by judges, prosecutors, and defense attorneys alike toward so-called “mopes:” the low-level offenders, overwhelmingly poor and black or brown, who fill the court system and receive assembly-line treatment. Van Cleve argues powerfully that “mope” is a racialized slur, mobilizing moral disgust for poor people who have made “bad choices” and do not deserve to be treated with dignity. Increased reliance on decriminalization has the potential to produce ever more mopes, substituting for the stereotype of the violent black brute the stereotype of the shiftless, dependent, morally dissolute black loser.

Natopoff’s article, the fourth in a series exploring the role of misdemeanors in the American criminal justice system, sounds an important warning. As the killings of black men and women continue to shock the nation, it is important not to seize upon partial solutions like decriminalization that merely, in Reva Siegel’s words, accomplish “preservation through transformation.” “Black lives matter” means more than the right to bare life. It also means the right to a life with dignity, and governance that protects rather than preys upon the poor.

A Case Study for Understanding Prison-Reform, Its Advocates and Its Critics

Oct 7, 2015 Margareth Etienne1 comment

Margareth Etienne

With the recent national attention given to concerns about mass incarceration, lengthy prison sentences and atrocious prison conditions, it appears that we have entered a wave of prison reform—once again. But perhaps we believe it to be different in kind or degree from the sort of reformist movements we have had in the past. We might believe that today’s areas of focus—overcrowding due to three-strikes laws, concerns about the treatment of juvenile offenders, the roles of race, ethnicity, poverty and mental health as factors in determining prison demographics, the prevalence of sexual assault and violence in prions, the defunding of rehabilitation and re-entry programs—are new or unique. In Coxsackie: The Life and Death of Prison Reform, historian Joseph F. Spillane exposes the cyclical nature of prison reform debates along with a close examination of the failure of the American reformist movement of the early to mid-1900s. Relying on primary documents that included legislative discussions, periodical accounts, correspondences between key political actors, and primarily prison records, Spillane carefully reconstructs the events that influenced first the construction and later the of management of New York State’s Coxsackie Correctional Facility. Coxsackie (pronounced “cook-sock-ee” according to Spillane), opened as a then-modern vocational reformatory for adolescents in the 1930’s at the height of the progressive prison reform movement in New York but within decades spiraled into a now-modern maximum security warehouse for inmates rife with violence and brutality.

Like a lot of good history books, Spillane’s account depicts the past while helping to explain the present and is a must-read for anyone who cares deeply about prison reform and wants to avoid (or at least understand) common pitfalls. In his depiction of the pendulum swings characteristics of prison reform movements, Spillane begins with what were the triggering events in the 1920’s and 1930’s. According to Spillane, prisons generally suffer from inattention until a “focusing event” raises public awareness or fear. In the 1920’s and 1930’s, prison riots provided a political tipping point presenting the education reformers with an opportunity to advocate for change. Then-reformers blamed idleness, prison overcrowding and draconian four-strikes mandatory life Baumes Laws (little did they know that three-strikes would later became the norm!) for the riots.

This view, and what to do about it, was part of the New Deal era thinking. New rehabilitate service-oriented vocational facilities were to be financed in part by the WPA. Coxsackie was built as one of the first of its kind—a prison without walls, at the end of a quarter-mile long driveway, flanked by open fields, on a tree-lined campus where visitors were ushered into an administrative complex. (P. 49.) I found some photographs of the facility online (today it’s surrounded by tall wire fences) and it looks architecturally more like a distinguished private school building than the cement-block lightless warehouses characteristic of more recently-built prisons.

More important than its physical structure, Coxsackie was distinguished by its programming and staff. The Coxsackie experiment was premised on the notion that offenders could be educated and rehabilitated. Reformers insisted that Coxsackie and similar institutions be staffed and organized with this rehabilitative mission in mind. A Division of Education was created within the Department of Corrections and 86% of the inmates were enrolled in educational problems or likewise. Service and treatment programs were a mainstay of the institution and eventually were integrated in parole and release decisions. The reformers succeeded in championing a system, backed by legislation that was focused less on conservative concerns about coddling prisoners and more on liberal concerns about rehabilitation and re-entry.

So what happened to Coxsackie—and by extension to prison reform? By the 1970’s, this reformist gem devolved into a maximum security, violent, highly racialized, resource-poor, over-crowded institution that has become emblematic of the mass incarceration problem in the United States. Among other things, Spillane’s account blames its underfunding—nearly from its inception—for undermining its mission. Prison politics, several wars, and financial crises and social revolutions changed the debate and the grounds on which prison reform was understood. Furthermore, prison life was not exempt from the racial strife and racism that plagued in a newly integrating (or at least desegregating) society. A focus on law and order permeated and led to a reinstitution of the notion that “a prison should be a place of fear, not hotel.” This all sounds too familiar.

Spillane’s meticulous account of one of the most optimistic efforts in prison reform provides us with a tragic sense of deja-vu as we think about which innovations have failed in the past. Yet Spillane ultimately exposes a key difference between past reformers and today’s reformers. He described the evolution of Coxsackie as not merely a failure of prison reform but a failure of progressivism. Today’s debates over rehabilitation have become fixated “on ‘objective’ measures of success, especially recidivism rates.” Spillane sees this as fighting the anti-reformists on their own turf. He invites us to recall some of the non-quantifiable justifications for the older progressive vision of prison reform that emphasized “humanity, compassion and communication” as inherent virtues. Even when educational or treatment efforts have succeed on recidivism grounds, conservative critics have attacked them for conferring undeserved benefit on undeserving offenders. Perhaps the next wave of prison reforms should be more explicit about identifying its measurable and non-measurable impact on society and on those it incarcerates.

Anti-Rape Culture

Sep 28, 2015 Aya GruberAdd a Comment

Aya Gruber

I had just pulled up Janet Halley‘s compact and insightful (and incite-ful) commentary on sexual assault for re-reading in preparation for this Jot, when a student came in to chat. This student was involved in a soon-to-be launched pilot program, overseen by the University’s Title IX office and funded by grant money, to provide peer counseling to those identifying as sexual assault victim/survivors. The student-counselor explained that the program aimed to “point students in the right direction” and give them a “confidential sounding board.” The student further stated that the program would be “good for professors” because the peer counselors would deal with contextualizing class topics counselees might find uncomfortable or traumatizing. “You all shouldn’t have to do that,” she opined, “you should be able to just teach.” So I asked, “What are you going to tell students who have concerns about class material being traumatizing?” “I’m not sure yet,” she said, “we are going to receive trauma training from an expert.” “An expert on what?” I asked. “I guess trauma,” she replied. The student-counselor proceeded to reassure me that if a student came to her complaining about a lack of sufficient trigger warnings, she would tell her to “get over it.”

This is the new world we teachers and scholars of criminal law live in. And although the student I spoke with was quite level-headed and well-intentioned, she is soon to be part of this powerful culture. In this new world, the “one-in-four” claim is not just a rallying cry of feminist advocates meant to counter widespread sexist beliefs that rapes never occur and women are liars. Today, the statistic is the “truth” that underlies extreme, one-sided, punitive disciplinary policies and a marked shift in free speech/academic freedom norms. We are told to assume that a quarter of the women (not to mention a tenth of the men) in the class have been raped and traumatized and accordingly to teach rape in a psychologically appropriate manner (at the risk of severely damaging students and our own reputations/careers if we misapprehend the propriety of our methodology). Classes are a source of danger, and student activists call for speech control in the name of safety. Thus, it is not surprising that my interlocutor’s paradigmatic example of a student complaint did not involve actual psychological trauma but rather a sense of injustice when the professor fails to provide appropriate trigger warnings. We find ourselves in the midst of what I am calling “anti-rape culture,” that is, a set of beliefs about what constitutes rape (many forms of sex), its psychological effects (ruinous), how frequently rapes occur (ubiquitous), and appropriate institutional responses (punitive), combined with a norm that “good” people (feminists, women, liberals, non-sexists, etc.) must adhere to such beliefs.

Anti-rape culture is no longer counter-culture. It is not just a creation of feminist activists striving to challenge the status quo through strong rhetoric and hyperbole, if necessary. It has power, specifically, the power of the federal government. Anti-rape culture embodies, for many, undeniable truth, and through legislation, bureaucracy, and informal norms, it governs. Thus, I am particularly pleased that Janet Halley, the foremost expert on “governance feminism” (and coiner of the term) has lent her very important voice to the din of expositions on campus sexual assault. Halley uses the current campus sexual assault moment to illustrate the thorny issues produced when “advocates turn their rhetorical tools and social-movement protest into institutional government.” Halley’s analysis demonstrates why rape-reformers, who now bear the authority and responsibility of the gavel, no longer have the discursive luxuries that come with just a megaphone.

In making her case, Halley examines “ideal types” of hard cases illustrative of the problems that arise when the unyielding rhetoric of the counter culture becomes unyielding law-and-order. The first two involve policy that follows the directives to “take rape seriously” and “not blame victims.” In a signature Halley move of shifting the frame, the article deftly uncovers how recent high-profile claims that University administrators and institutions are indifferent (or worse hostile) to rape victims are, in fact, objections to typical procedural justice requirements. A particularly striking example involves reformed university policy’s treatment of witness credibility. The Harvard University training manual informs administrators that because rape complainants suffer from trauma, their stories “may come out fragmented or ‘sketchy,’” and be “misinterpreted . . . as lying.” The guidelines, Halley argues, are:

100% aimed to convince [administrators] to believe complainants, precisely when they seem unreliable and incoherent. . . . Meanwhile, the immense social, cultural, and psychological differences that can affect the credibility and coherence of both parties’ accounts do not seem, yet, to warrant any mention. On all of those, cultural incompetence is okay.

But for many of us (progressive/feminist criminal law teachers), formalist, libertarian concerns have to take an occasional backseat to distributive fairness concerns. Tinkering with procedure, one might argue, risks sacrificing the occasional innocent respondent, but it is fair in the larger scheme of things. Without reform, it is asserted, there will be far more female victim sacrificial lambs who fail to receive justice or are discouraged to report. Halley points out, however, that one should be circumspect about the distributional consequences assumed to justify the departure from due process. There is evidence that reformed procedures may not have the effect solely of increasing the chances that the right bad guys receive discipline. Rather, such reforms have the grave potential to disproportionately impact racial and sexual minorities.

The other types of hard cases Halley discusses illuminate how the anti-rape culture constructs sex, gender, and the relationship between sex and gender. For example, Halley examines reformed policy’s treatment of “drunk-drunk” sex. It is now old news that the feminist gold standard for disciplinary policy is to declare that a person commits rape if he has sex with someone that he “should know” is too drunk to consent and that the accused’s own drunkenness is not relevant. Some policies go so far as to say that a rape occurs even if the drunk complainant initiated the sex, creating the following theorem:

A and B are drunk.
A initiates sex.
A and B have sex.
B is a rapist.

How can this possibly make sense? Add some gender and it suddenly seems more sensible: Anna is extremely drunk and vomited in the bathroom. Her friends tell her to go home, but she refuses. Instead, she accepts the invitation of Bob, who is also extremely drunk, to go to his dorm room. There they drink some more, and Anna tells Bob she’s “sooooo drunk” and “hopes she doesn’t vomit again.” Anna proceeds to initiate a “make out” session with Bob. They have sex. Anna wakes up naked in Bob’s bed the next morning, remembering nothing and feeling horrible. She tells Bob she can’t believe “he took advantage of her that way.”

If this example sounds familiar, you have probably read a similar vignette on a University sexual assault web portal as an example of something that, although close, “would constitute sexual assault under our policy.” Reformed policy produces a distinctly gendered vision of sexual relations and constructs drunk college men looking to have sex (and random “bystanders”) as women’s protectors from their own inebriated bad decisions (necessarily the decision to have sex). As Halley states, “This commitment cuts women off—in theory and in application—from assuming agency about their own lives. Since when was that a feminist idea?” In addition, rape reforms involving intoxication and affirmative consent construct sex as a site of danger―an act that risks life-shattering trauma if not subject to strict constraint.

Halley wonders whether “campus-sexual-assault movement expresses the priorities and visions of white middle-class women” and accordingly “may not be providing us with everything we need to know to make fair decisions in cases involving class, race, and other key differences.” Perhaps, however, activists’ unyielding embrace of white middle-class woman’s vision of sex is the only way to counter the older white man’s view of sex. Even as sex-positivists, who believe law often undervalues sexual pleasure, and civil libertarians oppose radical rape reforms because they encroach too much on sexual exploration or use too blunt a punitive tool to foment social change, there are many who scoff at affirmative consent as “ridiculous” because “women want men to dominate them.” Male students routinely express disdain at rape reform because “it’s so easy for anyone to lie about rape.” And these contingents historically have had and desperately want to keep the gavel. In the days to come, as the law of rape gets parsed out by universities, the American Law Institute, and the public on social media, all of us involved in the debate should prepare to have strange, for lack of a better word, bedfellows. But that is Halley’s point. The issue of sexual assault is complex, shifting, and unsettling, and we are not well served with sound-bites masquerading reasoned policy, on either side. For those truly interested in delving into the complexity, Halley’s article is required reading.

Making People Pay – and Pay, and Pay

Aug 12, 2015 Mary FanAdd a Comment

Mary Fan

While budget crises have sparked efforts to curb the costs of mass incarceration, financial considerations have also intensified incentives for the aggressive use of a less-visible form of punishment—fines, fees, assessments, and related ways to make people pay. Collectively, these ways to extract money through criminal justice processing are called “legal financial obligations” or LFOs. The investigation into Ferguson by the U.S. Department of Justice yielded powerful insights into the hidden institutional pressures to raise revenue through pursuing community members and exacting LFOS. This hidden tax is harshly regressive—disproportionately imposed on community members who are often the least financially situated to pay.

Well before the Justice Department’s Ferguson report, Wayne A. Logan and Ronald F. Wright were sounding the alarm about institutional incentives to slam people with LFOs. Logan and Wright’s important article sheds light on the institutional incentives to extract money and the limited constraints to safeguard against what they dub mercenary justice. I have encouraged my students engaged in criminal justice advocacy and research to read and circulate Logan and Wright’s important article because it is compelling and accessible. The piece accomplishes an important feat for law review articles aimed at spurring reform—being of great value to scholars and specialists as well as a general audience able to act on reform proposals.

Logan and Wright begin by tracing the long pedigree of perverse incentives for mercenary justice. In both England and the United States, constables and justices of the peace were paid through fees paid by defendants and through reward money for successful prosecutions. (Pp. 1180-1185.) This created incentives for orchestrating crimes to collect fees and rewards, and paying the players through kickbacks. (P. 1182.) It also created perverse incentives to vigorously pursue crimes where the financial benefits were greatest rather than those with lower financial payouts even if the harms were more serious. (P. 1182.)

The rise of professional police forces and prosecutors tempered the profit-driven incentives with professionalized norms and ethics—but concerns over enforcement decisions driven by money-making persisted. (Pp. 1183-1184.) Periodically, allegations still flared that officials were arresting poor people for vagrancy and public drunkenness to ramp up volumes of cases and secure more funding. (P. 1184.)

Moving from the past to the present, Logan and Wright explain the complex landscape of LFOs attached to low-level misdemeanors and infractions. (Pp. 1185-1196.) Examples of pre-judgment LFOs include “booking fees” to pay the government for the costs of enforcement and other aims; pre-trial diversion monitoring fees to prosecutors; abatement fees to secure dismissal of charges or stayed adjudication; and fees accompanying applications for court-appointed counsel for the indigent. (Pp. 1187-1189.) Examples of post-judgment LFOs include the assessment of court costs and mandated assessments after conviction; “pay-to-stay” assessments for the costs of incarceration; fines and forfeitures in connection with the offense; and expungement fees in contexts where offenders qualify to expunge their record. (Pp. 1192-1196.) The types and mixes of LFOs vary from jurisdiction to jurisdiction.

Logan and Wright analyze constitutional limits on judicial financial incentives to secure conviction. (Pp. 1197-1209) They illuminate how the cases reveal two main concerns—neutrality and individualization. In terms of neutrality, due process does not forbid the government from financially benefiting from criminal law enforcement but it imposes limits such as forbidding judges to benefit personally. Individuality means that the LFO and penalties for nonpayment should be based on the nature of the offense and the individual offender’s ability to pay. In general, however, courts tend to defer to legislatively defined fines, fees and costs. (P. 1209.)

Arguing that existing judicial doctrines are a limited and insufficient constraint, Logan and Wright propose new principles to govern LFOs. (Pp. 1210-1225.) They argue that payments exacted earlier in criminal justice processing, such as pre-adjudication diversion processing fees,   are more suspect. (P. 1211.) They also argue that other risk factors for self-dealing include the prominence of revenue generation as a purpose for an LFO; the same agency collecting and benefitting from the LFO; and private agencies doing the collecting. (Pp. 1212-1213.)

Logan and Wright recommend the creation of independent commissions analogous to sentencing commissions to review, monitor and improve LFO practices and decide whether to approve new LFOs. (Pp. 1215-1223.) A commission could take a system-wide view of LFOs to safeguard against the proliferation and compounding of onerous LFOs and examine the effects of LFOs on defendants.

Hopefully legislators as well as scholars will use Logan and Wright’s valuable article. Logan and Wright offer a well-reasoned feasible proposal at an important time of awakening about the costs exacted by criminal justice processing. The Ferguson report revealed how regressive bleeding of criminal justice defendants to generate revenue exacts huge costs in terms of eroding community trust and peace and intensifying tensions at risk of eruption. While it takes more than a commission to address the deep challenges, an LFO commission and Wayne and Logan’s principles to guide the commission are an important start.

The Arrest Power Unchained

Jul 13, 2015 Susan BandesAdd a Comment

Susan Bandes

In standard criminal procedure and criminology texts, the concept of “arrest” receives surprisingly little attention. Arrest is portrayed as a way station on the road to trial. It is also portrayed as a meaningful sorting device: a determination that the criminal justice system has just cause to restrict an individual’s liberty, if only temporarily. For those who view arrest in these terms, coverage of recent events has provided a dramatic crash course in the true nature and scope of the arrest power. In Ferguson, Missouri, for example, Michael Brown’s arrest, which gave rise to the chain of events resulting in his death, was for the crime of “manner of walking along roadway.” Arrests on this charge were frequent in Ferguson, and 95% of those arrests were of African-Americans. Across the U.S., arrests for seemingly innocuous behavior are common; discretion to make the arrest “custodial” is generally broad; and the burden of arrests for misdemeanors and minor infractions falls disproportionately on minorities. One in three adults will be arrested by the age of 23. For minorities, the odds are even more shocking: 49% for African-American men, and 44% for Latino men. Legal scholars such as Babe Howell and Alexandra Natapoff have examined the often- draconian consequences of such arrests on individuals, including the process costs of contesting the charges and the lasting stigma of an arrest record. And as powerful recent scholarship by Alice Goffman, Michelle Alexander and Jill Leovy drives home, the arrest power is properly understood not merely as a restriction on individual liberty, but as a means of social control that holds entire communities in the grip of the criminal justice system.

Eisha Jain, in her valuable, meticulously documented article Arrests as Regulation, describes and critiques an additional set of burdens triggered by the broad, poorly circumscribed power to arrest—burdens that reach well beyond the criminal justice system. Arrests are used as a proxy, or a low-cost auditing mechanism, by agencies regulating public housing, public benefits, licensing for various professions, education, child welfare, and immigration, as well as by employers and other non-governmental actors. These agencies and individuals use arrests as a means of monitoring and tracking individuals (for example legal immigrants, foster parents, school children) and a means of setting regulatory priorities (for example determining who is entitled to public housing or employment or professional licensing). Agencies and individuals rely on arrests to assess the individual’s potential for violence, risk to security, or instability. In short, as Jain succinctly states, we have delegated broad front-end screening discretion to individual police officers, thus magnifying the effects of arrest decisions. The reasons for the arrest (even assuming the arrest is justified) often have little relevance to the rationales underlying the regulations at issue. Moreover, the use of the arrests often proceeds unchecked by any of the safeguards that would apply in the criminal justice context.

Jain describes several types of interactions between arrest and non-criminal consequences, many of them extremely troubling. For example, non-criminal consequences provide an incentive to law enforcement agents to circumvent the law. Evidence that is inadmissible in a criminal trial is often used in non-criminal contexts such as immigration hearings, and where consequences like deportation align with police priorities, the incentive to engage in illegal practices is magnified. Moreover, arrestees have no right to counsel in non-criminal proceedings, and often little or no access to the information used against them. Conversely, the use of arrest information in non-criminal contexts may directly conflict with law enforcement priorities. Examples include domestic violence victims evicted from public housing because the abuser lives under their roof; or cooperating witnesses deported before trial. On a deeper level, the use of arrests—often unverified, generally not subject to timely challenge in civil court—exacerbates the crisis of confidence in the police power and undermines the integrity of the criminal justice system.

One of the things I like a lot about this article is that it is filled with useful information. It illustrates and backs up each of its claims with well-documented examples, and builds a damning case through the careful accretion of detail. Although some of the issues it addresses have received attention from immigration scholars, the article places the immigration account in the larger context of non-criminal consequences more generally. Along the way, it acknowledges that sometimes coordination between criminal and civil authorities is worthwhile. Yet it leaves the reader convinced that little effort has been expended on appropriately regulating the use of arrest information, and that the results have been devastating, particularly in communities that already bear the overwhelming costs of the misuse of the arrest power.

Rethinking Proportionality in Punishment

Jun 10, 2015 SpearItAdd a Comment

SpearIt

Like the Chimera of Greek mythology, American penal thought has its own powerful and elusive forces. In the world of punishment, proportionality occupies a similar space in the American imagination. The fancy of proportionality is to balance the severity of punishment with the severity of crime. On its own, the task is herculean, yet in practice, success becomes absolutely elusive due to consequentialist considerations that continue to shape law and policy.

In this article, Lacey and Pickard show why proportionality cannot deliver on its promise of equalizing punishment. In the ‘neo-classical’ articulation, punishment has come to be understood as a morally appropriate equivalent to an offense, which in theory is constrained by the requirement of proportionality. However, the authors argue that proportionality generates in itself no concrete limits to punishment, and that the question of “how much” remains open to the sways of convention, political decision, and expediency.

This contention means that the cornerstone of retributive thought, proportionality, is far more complicated than “eye for an eye”-isms suggest. Rather, what has been thought of as proportionality is a product of political and social construction, cultural meaning-making, and institution building.

The explanatory power of this insight is worth pondering. Foremost, it helps explain why what was proportional 50 years ago is no longer. In the American context in particular, the notion of proportionality has come untethered from social referents, resulting in a spectacular grade-inflation, with prison sentences that were unthinkable back then, now the status quo.

Drawing on evolutionary psychology and comparative political economy, the authors examine differences between American and Scandinavian punishment. A major difference, they suggest, is that the American application of proportionality is no longer organized around a moral structure as a means to limit punishment. There is no agreed mechanism for anchoring the penalty scale, no religious ritual or sacred symbols of power, rather, punishment is driven by cardinal convention, calculations of consequences, and political dynamics.

Compounding this disconnect is the American will to retaliation. As a basic response to criminal conduct, this sentiment serves to escalate aggression and threaten ongoing relationships. The group tensions are exacerbated in proportion to the differences between those punished and the dominant group, with the greater the difference, the harsher the punishment. This picture flips the equivalency of proportionality on its head, since class, race, and social status are more likely to determine the scale of punishment than any intrinsic calculus. From this view, it might appear no accident that prison sentencing skyrocketed in the decades that punished indigent, uneducated, ethnic minorities the most.

As criminal justice effectively functions to maintain hostilities between groups, the authors advocate reconciliation as means to avoid polarization and reduce inequality. Mending the rifts necessarily involves legitimizing and civilizing of punishment, which itself depends on legitimizing and civilizing of criminal law. Success in these endeavors entails deeper understanding of the conditions required and supporting institutions that can deliver proper responses to crime. The key is to transform an untamable beast into a stable-mate.

For students of punishment theory, this article underscores that proportionality is not self-evident. It is perhaps less mathematical formula than cultural construct. In the present, proportionality floats in instability, unanchored to genuine social more. Although eye for an eye punishment may not be the accepted way, the notion of just deserts remains—and with it—the central difficulty of measuring an eye’s worth of pain.

The work also offers a fresh take on understanding the dramatically increased scale of punishment in America. It conveys that the scale is skewed because of calibration failure; simultaneously it soberly and somberly suggests that if wealthy, educated whites were the dominant subjects of punishment, sentencing would look very different than it does now.

Still, one wonders whether there is more anchoring than suggested. For example, the justice system is greatly indebted to religious forms and rituals, particularly criminal courts, where 12 jurors and a judge ritualize the biblical story of revelation; similarly, penitentiary as punishment has as nearly a long pedigree in Christian thought and practice. Although it is contended that these meanings have faded, a more troubling read might indicate pure sublimation—that religious conviction is driving the penal status quo. It is harkens to Bourdieu’s idea that some practices ‘go without saying’ because they came without saying. Thus, some of the anchoring may be somewhat invisible, despite that weekly, at all levels of society, masses of Americans come together to hear and talk about the imprisonment, torture, and capital execution of Jesus.

One also wonders whether eye for an eye literalisms are as foregone such as not to complicate the thesis. It may be true that purely retributive punishments are not viewed as appropriate responses to crime—but this might not hold for murder. The prison as a one-size-fits-all punishment seemingly abandons lex talionis, but whether the baseline holds for capital punishment is uncertain.

The critical questions raised by this work underscore that legal punishment must be treated perhaps more differently than any institution in society. It is the most poignant way for a state to exercise power over the naked body and it must be effectively constrained. Although the Supreme Court has been exceedingly reluctant to intervene in state and federal sentencing schemes, this work challenges that proportionality, as understood and applied today, will always fall short of just.

“Driving While Black” Redux: Illuminating New and Myriad Aspects of Auto(matic) Inequality

May 13, 2015 Mario Barnes1 comment

Mario Barnes

In the wake of a recent spate of police killings of unarmed young, black males in various states, we have once again been reminded of the problematic connections between identity, crime and justice in the United States. For example, the stories surrounding the deaths of Michael Brown (Ferguson, MO), Eric Garner (Staten Island, NY), Tamir Rice (Cleveland, OH), and Walter Scott (North Charleston, SC) reflect the urgency of this Country’s lingering need to seriously consider the differential policing of African-American boys and men. The effect of the killings has been so dramatic that along with the death of Trayvon Martin at the hands of George Zimmerman in Sanford, FL, they have inspired a social movement, the motto of which is “Black Lives Matter”. While socially conscious movements stressing the need for equal treatment for people of color are important, in our ostensibly post-race world, large swaths of the citizenry are still likely to view with skepticism claims that racial animus and unconscious bias routinely infect policing. Within this context, little can be done to address vulnerabilities of the socially marginalized without the assistance of compelling empirical data. A new and excellent source of such research is found in Pulled Over: How Police Stops Define Race and Citizenship (2014). This book describes the results of research conducted by University of Kansas scholars Charles Epp, Steven Maynard-Moody and Donald Haider-Markel, which powerfully demonstrates how police practices not only reflect racial bias but operate to construct understandings of race and societal status.

The study at the heart of the text analyzes survey data for over 2300 police stops of motorists in the Kansas City metropolitan area. Based on 708 survey responses for drivers stopped by police, 30 percent of which were from black drivers (P. 20), a key finding of the study is that the effect of race on traffic stops depends on the justification for the stop. For traffic safety stops, which the authors describe as “must stop” situations involving potentially serious violations (P. 60), Blacks are less likely than Whites to a statistically significant degree to be provided such justifications for their stops. This is so because the most important influence on these stops is “how people drive.” (P. 64). With investigatory stops—essentially described as stops for low-level violations—by contrast, Blacks a more likely than Whites to a statistically significant degree to be provided such justifications. Low-level stops, then, are significantly influenced not by driver conduct, but “how they look.” (P. 64). Beyond this illuminating finding connecting the consideration of race in stops to the type of traffic stop, the study considers the relevance of a number of other driver and auto characteristics for police stops. Looking at such characteristics as gender, age, class and driver behavior, the data support additional findings for investigatory stops. (P. 68-69). For example, certain low-value vehicles—a marker for socioeconomic class—were stopped more often, race mattered more when drivers were perceived as driving in locations where they were “out of place” and that young Black males driving low-status vehicles were the most vulnerable minority drivers. (P. 70-71). These survey data alone add significant nuance to our understanding of how perceived driver identity and behavior affect policing. The study, however, also collected interviews from among the survey participants. (P. 21). Using these interviews, throughout the text the researchers weave in driver narratives that provide powerful qualitative evidence of how drivers internalize the consequences of racially disparate policing.

There is much to appreciate about Pulled Over. Beyond illuminating the race distinctions between the policing of traffic safety and investigatory stops, the analysis of investigatory stops focuses on how these stops operate as institutional practice rather than as a by-product of individual police animus. (P. 38-39). Moreover, and importantly, the text explicates how the practice is important for co-constructing citizen understandings of race, and the debilitated status that accompanies certain minority racial categories. The authors demonstrate how this is done by the stops building on and accentuating negative racial stereotypes. (P. 12, 50).  Second, these results reveal the danger of the U.S. Supreme Court decision in Whren v. U.S., 517 U.S. 806 (1996), where the Court found stops based on minor infractions to be lawful even if they are partially motivated by race bias. Pulled Over reveals that considerations of race are most salient in the very low-level infraction environment in which the Court is unwilling to intervene. Third, the combined effect of the quantitative and narrative data, is not only to fully paint a picture of the story of police stops but effectively demonstrate how racially disparate stops convey a sense of second-class status. (P. 136). Not only does this data help to confirm the dangers of police profiling, but to explain why certain minority drivers are distrustful of police and more generally question the legitimacy of police stops.

The final chapter of the book includes a proposal for reforming police institutional practices for traffic stops. The proposal seeks to reduce the racial disparities between traffic safety and investigatory stops by only allowing stops where police have “clear evidence of criminal behavior.” (P. 161). Additionally, searches during the stops would require probable cause, and police would need to develop internal oversight guidelines for stops. (P. 161-162). While I am not particularly hopeful about the wide-spread implementation of the proposal in police departments throughout America, this work still makes a powerful contribution. First, it stands as an excellent example of informative law and society research that takes race seriously. Critical Race Theory (CRT) scholars have recently been calling for such work as an important first step in exploring potential synergies between social science empirical research and the CRT anti-subordination theories constructed largely from the lived experience of individuals. Second, the work’s emphasis on police stops as sites that manifest structural racism and convey a sense of a diminished quality of citizenship, should assist all but the willfully blind in better understanding the causes and consequences of racially biased policing. Concerning ourselves with this aspect of the text could help to move our national conversation about race and policing away from the notions of perceived black criminality that partially explain incidents such as those in Ferguson, Staten Island, Cleveland, and North Charleston, toward conversations about the actual inequality that routinely shapes the lives of young, black men in the United States.

Democracy as a Cause of and a Solution for Hyper-Incarceration

Apr 15, 2015 Christopher SloboginAdd a Comment

Christopher Slobogin

One of the last articles written by the late Andrew Taslitz (known as Taz to his friends) was entitled The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration. The piece is quintessentially Tazian. It brings together Taz’s concern for racial minorities and criminal defendants, his belief in the reformist potency of democracy, and his fascination with social scientific findings (including research on “happiness”!), in a provocative effort to tackle the single biggest problem in our criminal justice system today: mass incarceration. His prescriptions in the article—in particular his assertion that “populist, deliberative democracy” can be a way of softening the harshness of American criminal justice—are worth taking seriously.

As Taz described it, populist, deliberative democracy (or PDD) is not regular old democracy. Rather, in the criminal justice context it involves all “social groups,” including convicted offenders, in deliberations that take place in multiple venues, with the expectation that “compromise rather than domination” will occur. He contrasts this type of democracy with “raw populism” that is not deliberative and that tends to be based on less information about competing interests. Although Taz did not think PDD would by itself result in less reliance on incarceration, he does marshal some strong evidence that it could move the country in that direction.

In making this case, Taz relied on five sources. He first compared the U.S. to Europe, where incarceration rates and sentences are much lower, despite roughly equivalent crime rates. Most relevant here is Taz’s description of the contrast between what comparativists like Michael Cavadino, James Dignan and Nicola Lacey call “liberal market economies,” of which the U.S. is a prime example, and “coordinated market economies,” which predominate in Europe. A liberal market economy aims at a free-market “characterized by vibrant economic and political competition in a relatively regulatory-free world,” and thus tends to generate a distrust of government intervention and produce adversarial and polarized legislatures and bureaucracies. A coordinated market economy, in contrast, is more heavily regulated, in an effort to please a wide array of groups; it tends to be associated with proportional representation and multi-party governance. According to Taz, the impact of a coordinated economy and more diffuse democratic process on criminal justice policies is at least two-fold. First, “[t]he broad-based, coalitional nature of the electoral system . . . makes it harder for any one social group to use criminal justice as a way to wage war on another such group.” (P. 156). Second, the same coalition-seeking reduces the ability of any given party to control policymaking, which, together with a greater trust in government generally, increases deference to relatively lenient criminal justice experts. The result, borne out by data comparing criminal justice systems in liberal market and coordinated market economies, is less severe punishment.

Taz also delved into the research contrasting democratic proclivities within the United States. For instance, Vanessa Barker looked at the criminal justice systems and associated politics of three states: California, Washington and New York. As Taz notes, Barker found that, while Californians’ easy access to the referenda process is highly populist, their democracy is not “deliberative” in the PDD sense, but rather captured by relatively powerful (and white) social groups that tend to favor punitive policies such as three-strikes laws. In contrast to this “raw populism,” Washington’s use of town-hall meetings and hybrid state-citizen commissions has led to government endorsement of diversion programs, community-based alternatives to prison, and shorter sentences. In-between in terms of punitiveness is New York, which eschewed grass-roots input like Washington’s but also avoided the raw populism of California. Instead, New York relied heavily on the deliberations of experts who generally carried out the crime control agenda favored by politicians, but mediated it with their empirically-based knowledge that non-violent offenders usually do not require imprisonment. To Taz, Barker’s work reinforces the conclusion that PDD has moderating effects on punishment policy.

The third area Taz examined—the study of local politics and criminal justice—picks up the same themes. Here Taz relied on the work of another political scientist, Lisa Miller, who looked at data from Pennsylvania, and in particular Philadelphia and Pittsburgh. According to Taz, Miller found that anti-incarceration groups tend to come from the most heavily-policed and most crime-ridden neighborhoods (which also tend to be populated mostly by minority groups), because “their experience teaches them that crime is a multi-faceted problem that requires multi-faceted solutions” and the rejection of retribution-centered approaches. These findings led Taz to conclude that “giving local urban racial communities in heavily-policed areas more of an ‘effective’ voice in state and federal legislatures—a voice prompting serious deliberation and having the prospect of altering criminal justice policy—should serve as an anti-incarceration counter-force.” (P. 173).

Taz then turned to the results of what he calls “democratic social science.” The primary finding here is that people become much less punitive and much less focused on retribution when they are given detailed information about a perpetrator and his or her crime and allowed to deliberate on a just result. Thus, for example, Taz reports a study that found that respondents were much tougher on burglars in the abstract than they were when told about specific cases involving burglary. “Deliberative polling” that informs respondents about the many alternatives to imprisonment or that makes clear that respondents will be held “accountable” for their views also tends to produce more lenient punishments. Taz argued that incorporation of vignettes and deliberative polling into decisions about criminal justice is another way in which democracy could reduce hyper-incarceration.

Finally, Taz gleaned what he could from “happiness jurisprudence,” a diffuse body of research, which he claims supports the conclusion, “with little to challenge it,” that PDD promotes happiness. That state of mind in turn reduces both criminality and “the emotional need to strike back at perceived threats to safety by means of severe sentences of incarceration.” (P. 178). The primary manner in which PDD produces these results is, once again, through providing a means of giving people effective voice. Voice promotes esteem-building perceptions of autonomy and competence, and thus counters crime-inducing factors. More importantly in terms of affecting attitudes toward incarceration, Taz argues that, because PDD requires listening and acquiring information, it promotes empathy, which is a key requisite for compassion and the willingness to mitigate in cases involving people from “outside” groups.

Taz’s article makes a convincing case for PDD as a mechanism for rethinking hyper-incarceration policies. American democracy—Taz’s raw populism—is not incapable of changing incarceration-friendly policies; in recent years several states, reacting primarily to fiscal concerns or judicial mandates, have enacted laws that have the effect of reducing the prison population. But our criminal justice system is still more punitive by several orders of magnitude than Europe’s. If dramatic change is to occur, something more fundamental than an economic downturn is required. In that regard, local deliberations by informed citizens from all walks of life, informed by experts, could be part of the recipe for a more empathetic, less prison-heavy regime.

As Taz recognized, however, instituting PDD throughout the country—even at the level experienced in Washington state, much less to the ideal extent he envisions—is a “daunting” task.   He does not flesh out his thoughts on that subject. In a recent in a symposium tribute to Taz, I use Taz’s work as a springboard for explaining why, in contrast to European culture, American culture is unfortunately particularly infertile ground for PDD. In the meantime, The Criminal Republic should be read by everyone interested in criminal justice, both for its intrinsic worth and as a reminder of our friend, and great scholar, Andrew Taslitz.