Deterrence has nothing to do with it.

December 20th, 2012

Interesting concurring opinion by Posner the other day in U.S. v. Craig. Basically, the defendant pled to four counts of creating child porn — which he created in an awful and horrifying way. He could have gotten 30 years for each count, but the judge gave him 50 (30 on one count, 20 on the other three). The defendant appealed the sentence. But it was within the Guidelines, and so was presumptively reasonable. And the judge didn’t ignore any mitigating factors. So the appeal was meritless and denied. A shocking sentence for a shocking crime, but hardly a shocking decision.

True to form, however, Posner went out of his way to make an economic evaluation of the sentence. What was it good for? Did tacking on the extra 20 years make any sense? Posner says no, and argues that judges need to take such things into account in the future when imposing sentences.

He engages in a straightforward cost-benefit analysis. The cost to society? $30K a year now, more than double that as the prisoner grows old and requires medical care. Plus the lost productivity of the man being incarcerated. The benefit? For that he looks to the purposes of punishment. But not all of them.

He only considers Read the rest of this entry »

Answering Your Most Burning Questions

December 14th, 2012

Google analytics is a great tool. Among other things, it shows the search engine queries people use to find this blog. Which is a good way of figuring out who its audience is, and what they need to know.

The queries aren’t as entertaining as they are over at Popehat, but then again neither is this blog.

Nor are they all that varied. In fact, just looking at the top 2000 searches so far this month, almost every single one is a variation on a few basic themes. These are the questions people apparently want answered right now. So I’ll address them briefly — very briefly — here.

1. Should I become a lawyer? / Do I have what it takes to be a lawyer?

To answer questions like these, you first have to understand what lawyers do. Once you know that, it should be Read the rest of this entry »

Finished!

September 11th, 2012

I’ve been taking a break from posting here while cranking out the last installments of my guide to criminal law. The last one went up today (it touches on terrorism, but the fact that it was posted on 9/11 was the purest coincidence).

And just in time, too. Because the book can now be pre-ordered from the publisher.

You read that right. YOU CAN BUY THE BOOK! Yeeha!

Awesome book cover

Well, what are you waiting for? Stop reading this and go make my publisher happy.

On Strict Liability, Regulatory Offenses, and Overcriminalization

August 13th, 2012

The latest Illustrated Guide post is finally up. It only took for-freaking-ever, what with work and family and something like twenty rewrites. It goes into some of the problems with strict liability, overcriminalization and regulatory crimes — which is the perfect way to sneak in a (simplified) history lesson  on criminal law, to show how the problems developed. It wraps up with some preachy solutions.

It’s the longest one yet, with 56 panels and over 100 drawings. The tl;dr version is “good people still get in trouble, but it’s fixable.”

The first half can be seen here.

The second half can be seen here.

. . . . .

Here are some random samples:

. . . . . -=-=-=-=- . . . . .

. . . . . -=-=-=-=- . . . . .

. . . . . -=-=-=-=- . . . . .

See the rest here.

Next time, a real blog post. Promise.

 

 

A PhD in Law?

July 11th, 2012

Yale Law School has announced that it will now offer a PhD in Law — apparently the first time a doctoral program in law has been offered in the United States. One can only ask “what for?”

Ostensibly, the purpose of a PhD is to advance human knowledge. You get that degree for figuring out something new, and proving it to the satisfaction of people who know what they’re talking about. At the end of the day, humankind gets a little smarter, and you get to call yourself a doctor of philosophy.

Looked at that way, there’s not a whole lot of room for PhD studies in the law. The law is a manmade thing, not something out there to be discovered, and an unholy number of people make it their business to know all of its various ins and outs. In other words, there’s not much “new” to the law to figure out. The exception is for research into how the law is applied, and philosophical attempts to identify the underlying policies that explain why the law is the way it is. This is what legal scholars already do. They don’t need a PhD to do it. Lowly JD candidates do it when they write notes for their law reviews. Scholars do it when they write books and law review articles. Bloggers do it when they’re not bitching about the job market or SEO. Even amateur cartoons have been known to take a stab at it. There’s just not a lot for a PhD to work with here, and it’s already being done elsewhere.

Of course, that’s looking at it the wrong way. In the real world — particularly outside the hard sciences and mathematics — the PhD is just a prerequisite for a career in academia. If you want to be a professor, you’d better get that doctorate. It’s not about advancing human knowledge; it’s about training to be a “scholar,” however your academic field defines it.

Looked at that way, Yale’s decision makes slightly more sense. The Law PhD would just be one more way of proving your bona fides as a scholar, another way to compete for a job as a tenured law professor. There are far more people who’d like to be a law professor than there are available positions, so the competition is insane. The usual “publish or perish” rules apply here as much, if not more so, than anywhere else in academia, so getting enough articles into some law review or other is one requirement (which explains the proliferation of law reviews that few bother to read — the demand is not for the finished product but for the publication service). But that’s just a starting point. To further weed out candidates, law schools require advanced academic degrees. The J.D. is an entry-level vocational degree, nothing more. They want people with an LL.M in the area of law they teach. More and more, they want people with a PhD in (as the Yale announcement says) “economics, history, philosophy, or political science.” These are what the law is about, after all (and what you should be studying in undergrad — not pre-law — if you want to be best prepared for law school). But a Law PhD is probably not being offered just as another way to prove one’s sholarly ability.

The real reason is probably just supply and demand — and not demand from tenure candidates. The demand is from law school administrators, who want more and more ways to weed out those candidates. Because there are more and more people trying to break into law school academia. There are tons of people with LL.Ms and PhDs from other disciplines. But who has a PhD in law? Nobody. If it existed, it would be a great way to tell which candidates have learned how to be academics, which ones are already “one of us.” Yale is providing schools with a way to be more demanding of professorial candidates, and thus make the school’s job easier (while giving them something more to brag about.) Just as readers aren’t who law reviews are for, the PhD candidates aren’t really who this program is for. They’re not the customer, they’re part of the product.

So let’s make the ivory tower a little higher.  Of course, that will only exclude more people who have actually practiced law. But that’s what adjuncts are for.

On Overcriminalization: There’s nothing new under the sun

June 11th, 2012

As we’ve mentioned perhaps a dozen times by now, we do this illustrated guide to law in our rare moments of free time. (Latest post on self-defense law is here.) We make every effort to avoid citing case names or statutes in that guide, because they’re almost never necessary for an understanding of the actual concepts. We also try not to waste time on what the law used to be. It’s common for those who popularize specialized fields of knowledge to tell the story of how a given field has evolved, devoting the bulk of their writing to what people once thought, before getting to how things are right now — and we hate that. Cut to the chase, already!

But the next installment’s going to be about the sources of criminal law, and it would be sort of disingenuous to simply cut to the chase there (“elected officials pass statutes and ordinances, and agencies adopt regulations, now move along” — that’s not really the whole story, is it?). In this particular case, it seems necessary to at least summarize a history of how English and American criminal laws all came about. Because that history is still a big source of the criminal laws we deal with now — occasionally in weird ways.

It’s a fascinating history, and we’re barely going to touch on any of it in our comic. But the surprising thing is how rarely anyone has touched on it at all. The history of criminal procedures is extremely well-documented (and byzantine in its complexity); but if any of you are History majors looking for a topic for your senior thesis or a dissertation, we might just mention that the history of the laws defining crimes is far from exhausted, hint hint.

There are two or three halfway-intelligible histories out there, written during various centuries, and each author makes the same complaint that they’re writing in a vacuum. Each, however, refers heavily to Sir William Blackstone. So we were re-reading bits of his Of Public Wrongs this morning over our coffee (thank you Google Books!) when a thought started nagging in the back of our brain.

It was hard to pin down the idea, but then we had it: Overcriminalization. For a while now, people who pay attention to the law have complained that there are too many crimes, with irrationally high penalties, and that this leads not only to injustice but to the law itself losing its legitimacy. Lately, this idea has begun to gain traction among political types as well. People are starting to realize that, as we’ve written several times before, the problems come from a number of sources: vindictive laws being passed without much forethought in response to notorious one-off cases; progressive politicians outlawing more and more offensive behaviors; reactionary politicians ratcheting up the punishments for everything; and perhaps most insidious of all, unelected bureaucrats imposing criminal penalties on countless (and as yet uncounted) regulatory infractions. It’s so bad that nobody knows for sure what’s a crime and what isn’t, and especially in the federal system the penalties can far outweigh the severity of a given offense.

Why did reading Blackstone bring this to mind? Because apart from merely commenting on the state of the law in the mid-1700s, Blackstone was arguing for reform. He wanted a law that was more utilitarian, more deterrent than retaliatory, more enlightened — and above all, more simplified. He complained that the criminal law as it stood in his time was a tangle of writs and statutes, with new offenses being created all the time without anyone knowing about it. All the different sources of penal laws, and all the previously unknown offenses, were “a snare for the unwary.” The law had ratcheted up over the preceding centuries, so that the number of capital offenses was enormous, and severe punishments were prescribed for the pettiest offenses. All this led to judges refusing to impose the prescribed penalties, while at the same time leading to a growing contempt for criminal laws in general.

Yup, sure sounded familiar. Overcriminalization is something that just seems to … happen… in mature systems. In Blackstone’s time, it happened because of a rapidly-growing administrative role of government, because of officials trying to look tough on crime, because of vindictive one-off laws, because of not thinking things through, and because of simple intertia. Yup, totally familiar.

Still, whenever people start talking about overcriminalization, they don’t start throwing around old Blackstone quotes. Instead, they usually come out with an aphorism they ascribe to Tacitus: “The more numerous the laws, the more corrupt the government.” Which is unfortunate because (1) that phrasing implies a meaning that Tacitus did not intend; and (2) what the old boy really was saying was so much more apposite.

What was Tacitus saying in his Annals, Book III part 27? He’s talking about how the laws were getting out of hand in Ancient Rome:

Pulso Tarquinio adversum patrum factiones multa populus paravit tuendae libertatis et firmandae concordiae, creatique decemviri et accitis quae usquam egregia compositae duodecim tabulae, finis aequi iuris. nam secutae leges etsi aliquando in maleficos ex delicto, saepius tamen dissensione ordinum et apiscendi inlicitos honores aut pellendi claros viros aliaque ob prava per vim latae sunt. hinc Gracchi et Saturnini turbatores plebis nec minor largitor nomine senatus Drusus; corrupti spe aut inlusi per intercessionem socii. ac ne bello quidem Italico, mox civili omissum quin multa et diversa sciscerentur, donec L. Sulla dictator abolitis vel conversis prioribus, cum plura addidisset, otium eius rei haud in longum paravit, statim turbidis Lepidi rogationibus neque multo post tribunis reddita licentia quoquo vellent populum agitandi. iamque non modo in commune sed in singulos homines latae quaestiones, et corruptissima re publica plurimae leges.

Which my antique Church & Brodribb translation has as:

After Tarquin’s expulsion, the people, to check cabals among the Senators, devised many safeguards for freedom and for the establishment of unity. Decemvirs were appointed; everything specially admirable elsewhere was adopted, and the Twelve Tables drawn up, the last specimen of equitable legislation. For subsequent enactments, though occasionally directed against evildoers for some crime, were oftener carried by violence amid class dissensions, with a view to obtain honours not as yet conceded, or to banish distinguished citizens, or for other base ends. Hence the Gracchi and Saturnini, those popular agitators, and Drusus too, as flagrant a corrupter in the Senate’s name; hence, the bribing of our allies by alluring promises and the cheating them by tribunes vetoes. Even the Italian and then the Civil war did not pass without the enactment of many conflicting laws, till Lucius Sulla, the Dictator, by the repeal or alteration of past legislation and by many additions, gave us a brief lull in this process, to be instantly followed by the seditious proposals of Lepidus, and soon afterwards by the tribunes recovering their license to excite the people just as they chose. And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt.

So he wasn’t saying “the more corrupt the government happens to be, the more laws there will be.” He was saying “there were ups and downs, but generally there was a strong correlation between how many criminal laws we had and how broken our government was at the time.” (The word “corrupt” having the older more general meaning of “debased, decayed, changed in bad ways” — the way we’d say “a corrupted hard drive” today — in addition to the more specific modern meaning of “venal, self-serving, bribe-taking etc.”)

And what Tacitus was saying in general was the same thing that Blackstone was saying: there were too many criminal laws, often conflicting, created not for the general need but in order to curry favor with the people, to react to one-off cases, etc. etc.

Yup, sure sounds familiar. Just like old Ecclesiastes said, “there’s nothing new under the sun.” (Or didn’t one of the Epicureans say that first? Or was it one of the older Vedas?)

-=-=-=-=-

Blackstone actually gives us some hope. For his proposed reforms actually were taken to heart — in the new United States, of all places. As the new states were formed, and began creating their laws practically from scratch, they were ideally suited to put these new progressive ideas in place. There was no hidebound tradition to adhere to, no entrenched bureaucracy to upend. Blackstone called for a stripped-down, principled criminal law, and American legal thinkers tried to make it so. Crime was (for the first time in history, really,) identified as an offense against the State, and not the more personal kind of moral offense or private conflict. Lawmakers and judges began to try to explicitly think through different levels of intent and culpability — not as thoroughly as would be done in the mid-20th Century, but still in significant ways. Deterrence replaced retaliation as the driving force of enlightened thought on punishment. These were not frontier hicks making the laws, but educated progressive thinkers well aware that they were creating something new, and trying to get it right the first time.

We don’t have a new nation to start from scratch again, but at least there is precedent for reform. England came around, too — if a bit more gradually. (We probably don’t want another Sulla, though.)

It’s happened before, it could happen again. There’s nothing new under the sun!

 

 

 

100%

May 17th, 2012

The call came, as they always do, at the last minute. “I’ve been charged with a crime, and I have to be in court in two days, and my lawyer isn’t doing anything, and I’m scared.” The caller came in to meet with me in person, as they always do when they’re legitimately scared and not merely irritated or price-shopping.

Most of the time, after hearing them out, we tell such folks that it’s probably not wise to change horses in mid-stream. Much as we’d love to help them, it doesn’t sound like their present lawyer’s doing all that bad by them, and there’s not enough time for us to catch up. But once in a while, the emergency is legit, and it sounds like we might be able to help. The client signs the agreement, forks over the retainer, and we get to work. There isn’t a minute to lose.

(Before they go, however, we sometimes half-jokingly ask why they didn’t just call us first. The answers vary, but it always boils down to money. There’s nothing wrong with that — price is a legitimate concern. And our services aren’t exactly cheap. So it makes sense that we wouldn’t even be considered an option until other things suddenly became much more important. Unfortunately, people often don’t realize it until the last minute, or until it’s too late.)

There isn’t a minute to lose, and we’re going to spend the next couple of days trying to accomplish all the things that should have been done already — gathering evidence, analyzing data, speaking with prosecutors, etc. Usually, of course, the first call is to the original lawyer. Nobody likes to get those calls, but it’s usual enough in the criminal world — clients jump ship all the time for various reasons, it happens to all of us — and the lawyers are usually collegial and gracious about it.

But not this time.

This time, the lawyer was outraged. Couldn’t believe that this was happening. This wasn’t mere shock, as from a new lawyer experiencing it for the first time. It was anger and betrayal. We began to wonder if perhaps we’d mis-read the facts, and maybe this lawyer had invested a lot into this case.

That thought didn’t last long. “Can you shoot me a copy of your files?” What files? The lawyer only had the accusatory instruments. “What’s the prosecutor’s take on the case?” Who knows? The lawyer hadn’t called to ask. A few questions more, and it became obvious that zero work had been done on the case, and the client’s fears were fully justified.

Our silence must have been eloquent. The lawyer started protesting that the client couldn’t expect ass-busting in a case like this.

-=-=-=-=-

Ah. Yes. Of course. No client could expect their lawyer to be busting their ass on a routine little case.

Except that’s absolutely wrong. Clients can — and should — expect their lawyers to be out there busting there asses on every single case.

It doesn’t matter whether the client’s looking at a murder rap or a farcical summons. The lawyer’s job is to give 100% to defend that client. The client paying next to nothing gets the same level of care as the one who’s carrying your practice for the year.

That means putting in time, of course. And if one has a high-volume-lowest-fee business model, there probably isn’t any extra time for that. There’s barely enough time to just show up on the assigned court date and take whatever plea gets offered. Any more work than that would mean one has no time for taking on all the other cases required to pay the bills. So too bad, so sad, but that time is not going to be invested.

And so here’s another client who’d hired a lawyer, thinking the lawyer would protect them and defend them the way lawyers are supposed to. And instead got a lawyer who saw the client as just another routine widget to be processed through the machine. A lawyer who isn’t there to protect and defend, but to grease the wheels of the machine that destroys reputations and lives. And now the client is starting to realize that, and the client is beginning to panic. For damn good reason.

-=-=-=-=-

The lawyer didn’t end the call graciously. But it ended. And then we got to work.

Over the next couple of days we got the alleged victims’ stories from the prosecutor, fleshed out the prosecutor’s assessment of the case, located and interviewed three eyewitnesses, and helped the prosecutor dramatically reassess the case in the client’s favor. From a heinous incarceration case to essentially “go forth and sin no more.”

This is not self-congratulation. It didn’t happen because of any particular skill or ability we have. It took no brilliance whatsoever. This is precisely what would have happened anyway, had the first lawyer done his job right. Any lawyer who had bothered to take the time would probably have gotten the same result. It really was a no-brainer at the end.

No, this is not self-congratulation — this is a complaint. A complaint about lawyers who don’t feel like a particular case deserves 100%. Every case gets it. Every client deserves it. If you don’t have the time, too bad — that is not your client’s problem. Every client gets 100%. Period.

And if you don’t agree, then what the heck are you doing here?

More Reason to Increase Legal Profession’s Barriers to Entry

April 19th, 2012

When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.

The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”

So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.

It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.

The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.

-=-=-=-=-

Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.

Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.

The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.

The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.

This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.

-=-=-=-=-

The solution is to be, not protectionist, but Read the rest of this entry »

More on Brain Scans – Can They Tell Whether You’ll Get Off Lightly?

April 3rd, 2012

With a hat tip to our Uncle Ralph, here’s a link to yet another fMRI study bearing on criminal law. Makiko Yamada and colleagues have published in Nature Communications their study “Neural Circuits in the Brain that are Activated when Mitigating Criminal Sentences.”

The researchers asked people to review the facts underlying 32 hypothetical murder convictions. Half of them were designed to elicit sympathy for the convicted murderer, the other half to elicit no sympathy. The test subjects were told that each murderer had been given a 20-year sentence, and they were asked to modify the sentences. Unlike previous studies, there was no question as to guilt or innocence — the only issue was whether the sentence should be more or less than 20 years under the circumstances. A functional MRI scanned their brains to see what neurons were firing as they made their decisions.

The question intrigued the researchers because such decisions are not only high-stakes, but also because one must first have an emotional reaction, and then convert it into a cold quantification — the number of years of the sentence.

After crunching all the numbers, there appeared to be a strong correlation between activity in the portions of the brain highlighted in the image above, and reduced sentences.

To their credit, the researchers really don’t conclude any more than that — that certain brain areas seem to be involved in decisionmaking influenced by sympathy. And someone who’s more likely to be sympathetic is also more likely to have more activity in those neurons.

But they do note that this raises other questions — such as to what extent Read the rest of this entry »

Better Criminal Lawyering through Smart Risk-Taking

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 Read the rest of this entry »

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

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 Read the rest of this entry »

Making Drug Enforcement Work

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 Read the rest of this entry »

Is Open File Discovery a Cure for Brady Violations?

February 28th, 2012

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

The proper concern is whether Read the rest of this entry »

Plugging Away

February 7th, 2012

In lieu of a regular blog post, I figured I’d leave a sample of the illustrated guide to crimlaw I’m doing on Tumblr (a link to the full series is over there on the right). Regular writing will resume shortly. Enjoy.

 

 

Read the rest of this entry »

When Incarceration Shot Up and Crime Plummeted

January 24th, 2012

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

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Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was Read the rest of this entry »