Archive for June, 2011

Time to Lose the Guidelines?

Wednesday, June 29th, 2011

Bill Otis, a former AUSA and now an adjunct at Georgetown Law, had a piece earlier this month in the Federalist Society’s magazine Engage titled “The Slow, Sad Swoon of the Sentencing Suggestions.”  His article opens with the sentence “The Guidelines are a lost cause.”  We were in total agreement so far.  But by the next sentence, he’d lost us.

It’s a good article, don’t get us wrong, and well worth reading.  But Prof. Otis’ main point is that the Guidelines stopped being useful after Booker made them optional.  He’d prefer to completely do away with them, but only to replace them with more stringent rules that remove most of the discretion judges now have in sentencing.  We cannot agree.

The Guidelines were enacted back in 1987 largely in response to a perception that sentencing was too unpredictable.  For any given crime, Judge A might give three years in prison while Judge B might give only one.  Or Defendant X might get prison while Defendant Y only got probation.  The Guidelines corrected that by removing much of the discretion judges had.  For a given offense, and a given criminal history, there was a range of permissible definite sentences that could be imposed.  Some discretion was allowed for slight downward or upward departures to different ranges.  Less discretion was allowed for variances, sentences that rejected the Guidelines as inappropriate.  Needless to say, judges hated this loss of discretion from day one.  The Guidelines were not mere guidelines, but strict rules.  It stayed that way until the 2005 Booker decision restored them to the general rule-of-thumb they were meant to be.

Now, the Guidelines are still important at sentencing.  Everyone uses them, everyone applies them.  Now, however, once the appropriate Guideline range has been calculated, there is more room for advocacy to seek a different sentence, and judges are able to consider different sentences on a case-by-case basis.

Some, like Otis, decry this as a return to the unpredictable bad old days, where one’s sentence varied based on the “luck of the draw” of which judge one happened to have.  Others praise it as a movement towards greater individual justice.

The division here is deep, a seemingly irreconcilable difference of core principles of what criminal justice is supposed to do.

On the one hand, you have those who want predictability, uniformity and consistency.  If stealing $50,000 is worth five years (or whatever), then it’s worth five years.  What’s important is the crime, not the criminal.  If society knows that a given crime gets you a given sentence, then the law has a more deterrent effect.  The penalty works to prevent more of the same crime, and society benefits.  Taking into account such variables as the thief’s personal circumstances or the judge’s gut feeling that this wasn’t such a big deal — or conversely variables such as the relative harm suffered by the particular victim or the judge’s gut feeling that this was worse than usual — makes for an unpredictable world where nobody knows what a given crime is worth.  Without predictability, the law loses its deterrent effect.  Society suffers.  The purposes of punishment that are most important to this group are retribution — a given crime is worth a given penalty — and general deterrence.

On the other hand, you have those who want individualized sentencing.  Make the punishment fit the criminal, not the crime.  Justice is not what happens on average, it is what happens to this individual standing right here right now.  And even general deterrence is achieved not by specific sentences, but by the general awareness that some punishment is going to happen.  The uncertainty of what that penalty might be doesn’t lessen the deterrent effect of this awareness.  And the retributive aspect of punishment must be proportional to be just.  A one-year sentence might be devastating to the life of a middle-class college grad whose career will be ended, whose reputation in his relevant community will be destroyed, and who will suffer the consequences deeply for the rest of his life.  That same one-year sentence might be a walk in the park (or as one of our clients once put it, “a nice vacation”) with little or none of the devastation suffered by the other.  Justice demands that individual differences be taken into account.  And that demands that judges be given the discretion to do so.

These two positions — general justice vs. individual justice — are usually irreconcilable because they use the same words to mean different things.  They can’t even begin a discussion because they’re arguing from core principles that don’t correspond.

But beyond that, those who value general consistency over individual appropriateness miss the entire point of our criminal justice system.  The whole point is to ensure (more…)

Even Worse than Eyewitness IDs: The Police Sketch

Wednesday, June 29th, 2011

Everyone knows that eyewitness identifications are completely reliable — that is, you can count on them to be wrong.  (Everyone does know this, right?)  If the person being identified is a stranger, the chances of a correct I.D. are slim to none.  There are lots of reasons for this.  Eyewitnesses rarely have or take the time to study and memorize a person’s features.  People of one race are awful at identifying people of another race, largely because the parts of the face which differ from person to person are different from race to race — which is why people of another race often “all look alike,” because you’re looking for cues in parts of the face that don’t vary much in that other race.  And people just generally suck at remembering details consistently and accurately.

Still, sometimes an eyewitness description is all you’ve got.  And so what if the eyewitness didn’t see every detail of the face — at least they can describe the parts they did see.  Trained sketch artists take the partial descriptions provided by eyewitnesses, and using sophisticated software they can put together composite sketches that show what the bad guy probably looks like.

We’ve all seen them on the TV news, and various crime dramas would lead one to believe that they’re pretty useful.  And now with IdentiKit software, the details can be adjusted here and there until the witness goes “that’s him!”

But we never hear, after the fact, whether the drawing wound up being all that accurate.  There’s a good reason for this.  The odds of the drawing being accurate are so low, they are below statistical significance.  You’ve probably noticed this yourself, on the rare occasion when a police sketch has later been released with a photo of the culprit — the resemblance even then is usually pretty slim.

A thorough study of composite sketches by Charlie Frowd, of the University of Stirling in Scotland, had participants study a photograph of an individual for a full minute, then describe the face for a trained police sketch artist.  How well could people then recognize the faces in these sketches?  The recognition rate was as low as 3%.

Three percent.

MIT scientists Pawan Sinha, Benjamin Balas, Yuri Ortrovsky and Richard Russell have a great article here that describes problems with composite sketches and ways to make the software better.

The image above was taken from that article.  A trained and experienced IdentiKit officer was given actual photographs of celebrities with distinctly recognizable faces.  He was given all the time in the world — no pressures — and worked directly from the photos themselves instead of having to rely on another person’s descriptions.  And those sketches you see up there are the best the software could do.

Well, maybe the problem is with what the IdentiKit tries to do.  After all, it just works on individual features one at a time.  The eyes, nose, mouth, etc. are worked on in isolation.  Humans don’t look at features in isolation, though.  So there’s another kit out there called EvoFit, that’s more like a photo array that gets to evolve.  The witness is shown 72 random faces.  She picks out the six that most resemble the culprit.  The facial features of those six are then scrambled and recombined to make 72 new pictures.  The witness then picks out, again, the six who most resemble the culprit.  The process is repeated once more to get an image that pretty much matches what the witness saw in her mind.

Now, there are tons of problems with this method.  The suggestivity of showing pictures is pronounced — when witnesses choose photos from an array, they often choose not the one that closest resembles the culprit, but instead pick the one that looks different from the rest — and when a picture has been chosen, that image often replaces the image in the witness’ memory.  She now remembers that face as being the face of her attacker, even though it wasn’t.  This method of scrambling digital faces poses the same problems.

Still, it is more reliable than the IdentiKit.  Instead of a 3% recognition rate, the EvoKit attains a whopping 25% recognition rate.

One in four.

-=-=-=-=-

People suck at identifying strangers.  Period.  And yet in-court eyewitness identifications are the nuclear bombs of trial.  The victim points at the defendant and says he’s the one what done it, and you can see the jurors’ minds turning off.  So far as they’re concerned, this trial’s over.  The defense lawyer’s got a lot of work to do, now, to overcome that.

What would be just and fair, of course, would be to allow some evidence of the unreliability of eyewitness identifications in general, and the reasons why IDs can be wrong, so that the defense can tie them to specific testimony by the eyewitness to show that she made the same mistakes.  Not asking the jury to make a logical fallacy that, because it happens a lot in general, it must have happened here as well.  But actually drawing the jury’s attention to specific reasons why this particular testimony is not trustworthy, supported by expert testimony on the unreliability of IDs.

Don’t hold your breath waiting for that to happen, though.

Where will all the extra lawyers go?

Tuesday, June 28th, 2011

 

The New York Times had an interesting data crunch yesterday called “The Lawyer Surplus, State by State.”  Economic consultants EMSI estimated how many new jobs for lawyers there are going to be each year, in the near future, in each state.  Then they used the actual number of bar exam passers each state had in 2009 to figure out how many new lawyers would be competing for those jobs.  The results were worthy of remark.  Every single state except for Nebraska and Wisconsin is projected to produce more new lawyers than lawyer jobs.  (D.C.’s data was included, but isn’t comparable, as most simply waive in there.)

The results are worthy of remark, but they are hardly surprising.  Back when we were in law school in the mid-’90s, it was “common knowledge” (if uncited) that America had “more law students than lawyers.”  We recall reading that there was a surplus of lawyers back in the ’80s.  We wouldn’t be surprised if the same things were said in the ’70s and even before we were born.  And we’d expect to keep hearing such things for as long as the profession endures.

The number of lawyers at any one time, however, is probably just about right.  It’s simple supply and demand.  A practicing lawyer is only practicing because his services are demanded by someone.  If there is no demand for all the lawyers out there, market forces will ensure that the excess supply finds themselves pursuing other careers — whether they want to or not.  When people say there are “too many lawyers,” they usually mean “too many bad lawyers.”  (Which leads us to wonder how come you never hear that about other professions or occupations?  Nobody ever says there are too many doctors, or too many electricians, though surely there must be too many bad ones out there.)

But “too many lawyers” has a different meaning when spoken by law students and freshly-minted lawyers.  It means there are not enough jobs out there for everyone who’s going to be passing the bar.  Again, it’s a refrain we’ve heard before.  When we graduated from law school, just before the dot-com boom, we knew plenty of smart capable young lawyers who had a real hard time finding a job.  Everyone was bitching and moaning that people were racking up all this debt with no means in sight to pay it off.  Ditto a few years later when that bubble burst.  And now some years later when the finance bubble burst.  The only difference we can see between then and now is that these days the students and graduates are trying to blame everyone (except themselves) for their bad luck.  As we discussed a couple of posts ago, all that happened was a long-term shift in the demand curve, to which the profession reacted late and to which the law student population has yet to react.

Because young adults continue to flood into law school.  There’s been a bit of a dip here and there this year, but the numbers are still strong.  So it makes us wonder what’s going to happen to all of them as they enter a market that has no room for them.

The EMSI numbers seem reasonable.  They predict a nationwide surplus of more than 27,000 young lawyers each year for the foreseeable future.  We’re not talking about people who didn’t make the cut, people who went to law school but washed out.  We’re talking abotu JDs who actually passed the bar, and still won’t have a job waiting for them.

What are 27,000 surplus lawyers going to do each year?

Some of them will hang out their own shingle and (more…)

Prison: A Problem, Not a Paradox. Is It Solvable?

Tuesday, June 14th, 2011

Too many people are in jail.  The rate of incarceration is just going up and up.  Is it doing any good?

If you look at the two graphs above, you’ll see that the prison population in the United States has soared, while the amount of violent crime has plummeted.  The prison population of 1.5 million is about triple what it was in 1980.  Meanwhile, according to the DOJ’s figures, violent crime is about a third of what it was in 1980.  It’s an uncanny correspondence, that incarceration has tripled while violence has thirded (yes, that’s a real word).

Some people look at this and say there’s an inherent absurdity, an inherent injustice, that even though crime is down jailings are up.  Others say it’s obvious that, if you jail the people who commit crimes, they’re not going to be walking around to commit as many crimes.  One sees a paradox, the other sees causation.  (These are not straw men, by the way.  These positions have been taken on the pages of the New York Times and the Wall Street Journal, among others.)

There really isn’t any paradox, of course.  It’s not like more people are being imprisoned than there are crimes being committed.  Last we heard, everyone in prison was convicted of something.

What’s going on here is that more and more convictions are resulting in incarceration.  Crime may be down, but the proportion of crimes you’re likely to go to jail for is way up.

Nonviolent crimes, in particular, are far more likely to get you a jail sentence these days.  Since about the start of the Clinton administration, the number of different kinds of nonviolent offenses has skyrocketed.  And drug crimes have been a growing proportion since the Reagan years.

Several factors are involved in this dramatic increase in prison for nonviolent offenses.  One is a dramatic increase in regulatory violations that have been criminalized.  Regulatory agencies have started using criminal law as a tool — a tool that is wrong for the job, and one they are ill-equipped to use.  Voluminous regulations are created to micromanage how people can live their lives and operate their businesses.  Fines, denial of permits, and other civil penalties are the normal and appropriate method for enforcing compliance with all the regulations.  But over the past generation, regulators have become emboldened to impose criminal penalties for violations of their rules.

These regulations are rarely drafted by anyone who has the slightest clue of what criminal law is, why it exists, and how it works.  So they tend to leave out little things like mens rea.  Everything’s a strict-liability crime with them. In the regulatory world, simple mistakes are indistinguishable from deliberate transgressions.  When the penalty is denial of a permit, that’s not a problem.  But when the penalty is prison, it’s a big problem.  And everything’s a federal offense, which almost always means a felony.  Instead of, you know, regulating conduct, the regulators use the criminal law to keep the unruly masses in line.  And more people face prison as a result.

Another factor is the elected politicians’ desire to look “tough on crime.”  Which results in a steady ratcheting-up of sentencing for existing crimes, as we’ve discussed before.

It also results in the creation of new crimes, harsher statutes to deal with the public outcry of the moment, like crack or hate crimes or insider trading or what have you.  These new offenses are rarely necessary, as existing laws tend to already punish the conduct.  But the new ones often carry greater minimum sentences, and that’s the whole point.  So more people are facing prison, and for longer stretches of time, than before.

-=-=-=-=-

The situation is getting out of hand.  It’s gotten to the point where small corrections aren’t going to cut it.  Drastic measures would be needed.  And drastic measures being, you know, drastic and all, they’re not likely to be undertaken any time soon.

But let’s say we’ve got a genie who’s offered to grant us three wishes here.  What would they be?

Wish one would be (more…)

No Jobs for Your JD? An Economist Explains What Happened.

Monday, June 6th, 2011

Where did all the law jobs go?  And are they coming back?

Good questions.  More on that in a second.  But first, we have to say that we’re frankly tired of hearing law students and newish JDs moaning about the dearth of lawyer jobs to be had.  Particularly grating are the complaints that it’s somehow somebody else’s fault that they’ve got all this debt and no six-figure job to show for it.  Most of these put the blame on law schools for hoodwinking them into thinking the job market for attorneys was awesome.  We don’t get that — people who go to law school are grownups, adults with college degrees, but these ones are acting like they’re still kids.  Come on, at some point you have to be responsible for your own decisions.  Childhood ended a long time ago.  Anyway, one would think that someone intending to become a lawyer would have had the basic ability to research what the real job market was like.  A simple Google search would have turned up a plethora of articles and discussions about it, going back to mid-2008.  If they really had no clue what they were getting into, then they really need to re-think whether they’re in the right profession.

And if they’d bothered to research just a tad more, they’d have found that this ain’t the first time law jobs have been harder to come by.  This kind of thing happens every now and then.  It’s cyclical, just like anything else.  Demographics, economic cycles, and the coming and going of fads have all affected whether there’s enough hiring going on.

One need not understand why it was happening.  But for college-graduate adults to not even know that it was happening?  And to make life-changing, debt-incurring decisions based on law schools saying their graduates had good-paying jobs?  (Or worse yet, based on a fantasy that has never been true, that anyone but the top grads from the top schools would be making the big bucks right out of law school?)  That’s just idiotic.  Such complaints call into question the very ability of the complainer to have practiced law in the first place.  It makes you sort of glad they didn’t find a job, kinda.

Although one need not understand why it was happening, however, it’s still worthwhile asking the question.  We’ve had our own theories, but they’re based more on intuition and anecdote than on any rigorous analysis.  So it’s good when, from time to time, someone pops up with an explanation.

With respect to the latest turndown, our basic understanding was always (more…)

Can Computers Replace Lawyers?

Thursday, June 2nd, 2011

 

In a post on the future of law schools, Josh Blackman predicts that “many legal services that are created today through individualized, customized efforts by toiling associates, will be replaced by information products that can be downloaded on demand, like a commodity.  …  This transform no doubt would dramatically change the skills attorneys of the not-so-distant future will need.”  That’s not quite true.  Automated legal advice is not workable in the foreseeable future.

But he does have a valid point.  A huge amount of the law really is formulaic.  Whether it’s tax law, or commercial law, criminal law, or what have you, a lot of it breaks down to a series of “if-then” statements.  So can software really replace what lawyers do?

Actually, yes.  It can replace a lot of what judges do, too, for that matter.  Rulings, etc.

Software cannot replace the judgment and creativity required for coming up with effective strategies, adapting the law, or persuading others.  Spotting the actual issue from a mess of facts, notwithstanding what the client happens to think the issue is. Figuring out what needs to be done and how best to do it. Coming up with the right questions, to get the most accurate data.  These are all human skills that algorithms just can’t handle at the moment.  These are the high-level functions that you’ll still need a lawyer for.

But a lot of lawyering really can be done by flowchart.  Once the issue’s been identified, it’s just a matter of selecting the correct law to apply, plugging the relevant data into that formula, and seeing what the answer is.  For a lot of junior associates, this is a big part of their job description.  The flowcharts can branch intricately, but that doesn’t make them any less formulaic.

It’s wrong to suggest, however, that people will be able to replace their lawyers with (more…)

Stop the Presses — Holder Does Something Right

Wednesday, June 1st, 2011

 

We rag on Attorney General Eric Holder from time to time on this blog.  For good reason — he’s been something of an idiot on profiling, miranda, terrorism, etc..  But today he did something praiseworthy, and we’d be out of line if we didn’t say so.

Last August, Obama signed the Fair Sentencing Act.  Although it does have some significant drawbacks, such as actually increasing sentencing for some defendants, the main intent was to try to reduce the insane disparity in federal sentencing for crack cocaine and powder cocaine.

The problem was, this reduction in the sentencing guidelines was not retroactive.  It only applied to future cases.  People already in prison for crack — even though everyone now agrees their sentences are too long — would have to suck it up and stick it out.

But today, AG Holder testified before the US Sentencing Commission, and told them the new lower sentences should be applied retroactively.  “As years of experience and study have shown, there is simply no just or logical reason why their punishments should be dramatically more severe than those of other cocaine offenders,” he said.

Yes.  He is, for once, right.

Of course, even when he’s right he can’t help being wrong.  Holder wouldn’t let the lower sentences be retroactive if the inmate happened to have a gun at the time of the crime.  Or if the inmate had a “significant” criminal history.  Apparently, crack really is something that should be sentenced more harshly if you’ve gotten caught possessing or selling it before.  There’s no internal logic here, no principle that supports this.  If crack crimes are not more serious than equivalent powder crimes, then what justifies enhancing crack but not powder sentences if these other factors exist?  Holder’s being disingenuous, trying to appease both the reformers and the “try to look tough on crime” legislators, instead of actually being true to his principles.  If he has any.

Still, although he’d be more correct to seek retroactive application across the board, he’s at least doing something right in seeking some retroactivity at all.  So here’s some polite golf applause for Eric Holder.