Archive for March, 2012

Better Criminal Lawyering through Smart Risk-Taking

Wednesday, March 28th, 2012

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably (more…)

Not Ready for Prime Time: Brain-Scan Reliability in Question

Tuesday, March 13th, 2012

Almost from our first post, we’ve written here about developments in brain-scan technology and its applicability to criminal law (see here, here, here and here, for example). So needless to say, the past nine days have been of great interest, as the research behind neuroimaging’s claims has come into hot dispute.

Now, just because our motto is “truth, justice and the scientific method,” that doesn’t make us qualified to assess the merits of the underlying science. Our observations on the actual science wouldn’t be worth the pixels. But fortunately, as with most such disputes, the issue isn’t so much the data as the math — the statistical analysis being used to make sense of the data. And we’re somewhat confident that we can at least report on such issues without getting them too wrong.

So briefly what’s going on is this:

First, lots of neuroimaging papers out there, some very influential, see apparent connections between brain activity at point X and mental state A. But what are the odds your reading of X was just a fluke, and the real spot is somewhere else, over at Z? If you do enough tests, you’re going to see X every now and then just by chance. So you have to figure out what the chances are that X would be a random result, instead of the real thing, and apply that correction to your statistical analysis. As it happens, however, for a long time the neuroimaging folks weren’t using an accurate correction. Instead, they were applying a lax rule-of-thumb that didn’t really apply. It’s since been shown that using the lax math can result in apparent connections to variables that didn’t even exist at the time.

On top of all that, as neuroscientist Daniel Bor mentions in his excellent (and much more detailed) discussion here, there’s reason to suspect that (more…)

Making Drug Enforcement Work

Friday, March 2nd, 2012

 

Tomorrow’s issue of the Economist has a brief piece on some new drug policing in Virginia: “Cleaning Up the Hood: Focusing on drug markets rather than users means less crime.” The article is on DMI, or Drug-Market Intervention, a law-enforcement strategy that has been spreading around the country since it was first introduced in North Carolina about eight years ago.

DMI is a combination of community involvement and police commitment that focuses on street dealers. The community is encouraged to report dealers. Police then notify the dealers that they know who they are, but promise not to arrest them if they take part in an intervention. The dealers are confronted with community leaders who show them what their dealing is doing to the community — and who promise to help them change their ways if they’re willing. The dealers are given a second chance. Meanwhile, the police increase their presence in the area, and those caught dealing now get locked up. Quick police response and community involvement increases people’s willingness to report dealers, and a cycle begins.

Law enforcement has long known that you don’t eliminate a drug problem by going after demand — addicts and users are too numerous, and no matter how many you lock up they just keep coming. Meanwhile, street dealers continue to operate, destroying the safety and livability of the community. The addicts they attract, the nastiness they inflict, the violence they commit, and the fear they instill all combine in ruinous ways, engendering more crime and blight.

Buyers are easy to arrest, though, and if a police force is going to be judged by its arrest numbers rather than actual results (as politicians are wont to do), then there is a strong temptation to arrest the users. Not only does this do nothing to stop the dealing problem, the users are typically charged with modest possession offenses that put them right back out to buy again.

Drug courts and similar diversion programs do actually work wonders with helping users break their drug habits and overcome the life-skill deficits that often led to them. But those programs are typically reserved for those charged with crimes to begin with, many times only those charged with felony possession, and of those only the defendants who are likely to succeed in the program to begin with. They’re great, but they don’t solve the underlying problem.

These DMI initiatives recognize that, like so much else in society, it is (more…)