Author: Corey Yung

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Sex Offenders in the Farm Bill

Over the last two decades, a great deal of innovation in criminal justice has targeted sex offenders. Registration, community notification, residency restrictions, employment restrictions, post-imprisonment civil commitment, special license plates, marked driver’s licenses, and specific loitering laws are among the various collateral limits that have been discussed and implemented for sex offenders. Generally speaking, these restrictions are applied retrospectively but survive Ex Post Facto Clause challenges because the relevant laws are considered non-punitive.

Thanks to the wonderful Texas criminal justice blog, Grits for Breakfast, I found out that the farm bill just signed into law by President Obama includes a provision denying food stamps to certain sex offenders. The provision was inserted by Senator Vitter (who ironically might be a “sex offender” who wasn’t prosecuted for hiring prostitutes) and applies to child molesters and those who commit violent sexual assaults. Notably, there are already bans on drug offenders participating in the program because there is a fear that they might trade food stamps for drugs. For sex offenders, however, it is difficult to think of any non-punitive justification for denying food stamps to sex offenders convicted before enactment of the current law. Even though the courts have bent over backwards to find various restrictions on sex offenders constitutional, it is hard to fathom a theory that would allow the Vitter amendment to be constitutionally applied to those with pre-existing convictions for sex crimes.

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Justice Scalia Has Gone too Far this Time

Justice Scalia has always been a lightning rod prone to inflammatory states. When Justice Scalia wrote that the majority opinion in Lawrence v. Texas would result in laws against masturbation (which did not actually exist) being found unconstitutional, some wondered if he had lost his grip on reality. And when he rewrote the history of the exclusionary rule by contending that “[s]uppression of evidence, however, has always been our last resort, not our first impulse,” many thought he was reading a different set of cases than the rest of us. His separate opinion in Arizona v. United States discovering inherent state sovereignty beyond constitutional guarantees while injecting Obama’s immigration policy statement made after oral argument in the case certainly raised a few eyebrows. Many thought he was a little over the top in stating that: “The death penalty? Give me a break. It’s easy. Abortion? Absolutely easy. Nobody ever thought the Constitution prevented restrictions on abortion. Homosexual sodomy? Come on. For 200 years, it was criminal in every state…” The list could go on.

But this time Justice Scalia has gone too far. He has crossed a line that cannot be uncrossed. In a public forum, he stated that Chicago-style pizza is not “pizza” at all joining  Jon Stewart in the unjust and unwarranted attack on one of the greatest foods on Earth.

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US News Rankings – The Biggest Loser

Imagine if the input-based approach used by US News was applied to the TV show The Biggest Loser. Currently, contestants win the show if they lose the largest percentage of their body weight. The input (original weight) is controlled for by using a percentage decline in weight instead of focusing on actual final weight or actual pounds lost. A system like US News uses would not control for the original weight and would simply use the final weight, regardless of starting weight, as part of the metric of success. Even worse, the US News system would give bonus points in some form to people that started out lighter. In other words, a 120 lbs person who gains 20 lbs. would beat a 350 lbs. person who loses 150 lbs. in the bizarro-US-News-version of The Biggest Loser. In our world of law schools, deans do far better by attracting high-score students who ultimately don’t make good lawyers than low-score students who have better long-term success in the marketplace.

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US News Rankings – Negative Incentives of Input Focus

The focus on inputs by the US News Rankings creates a pernicious rat race where resources are over-allocated to getting students with the scores needed to maintain or improve a school’s median scores. In a down market, as exists today, such competition is often fierce and scholarship dollars are overwhelmingly given to students with high scores regardless of need. Further, a rankings-focused Dean will spend more on attracting students than on educating them (assuming the money would otherwise have gone to classroom instruction in some form). A one-point drop in LSAT median can be due to a single above-median LSAT student making a last minute decision to not attend law school. And that single-point drop could cause a US News rankings decline and dean firing. Instead of pursuing well-rounded, diverse, and interesting entering classes, deans must fight tooth-and-nail, allocating personnel and financial resources, to meet arbitrary statistical benchmarks that are essentially products of the previous years’ ranking.

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US News Rankings – A Different Role for Inputs

Instead of our current world where higher LSAT/GPA numbers lead to more choices, I want to consider a hypothetical admissions model where students are randomly assigned to schools and forced to attend the schools selected for them. In such a world, LSAT/GPA scores would be relatively equal across all schools (in comparison to the present distribution). In formulating a rankings system from a student perspective, we would only care about what the schools do to improve the relatively equal incoming student quality (measured by job placement or other output variables).

Still, particularly for smaller schools, there would be some statistical variation in incoming LSAT/GPA scores and we would seek to control for those differences in assessing the output variables such as job placement. An ideal rankings system would discount success that could be attributed to incoming student quality and vice versa for schools with lower incoming scores. So, in a world where variations between incoming classes are small and unlikely to have substantial effects on the overall rankings, a good statistician would still like to control for the expected variation in class quality. But, strangely, in a world where the variations in entering class quality are very large, US News not only doesn’t control for entering class quality, it actually adds it to its overall formula in a prominent manner. This makes little sense if the goal is truly to measure law school quality (however it is defined) and aid students in their decision-making.

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US News Rankings – Focus on Inputs

In my discussion that the US News Law School Rankings create negative incentives for law schools, I want to start by examining the misplaced emphasis of the components of the rankings. One of the oddities of the US News rankings is that the quality of incoming students (as measured by median GPA and LSAT) factors so prominently in how schools are ranked. The two factors account for 22.5% of a school’s overall ranking. Yet, what exactly do we expect to learn from the median GPA and LSAT scores? First, those two factors tell us, in aggregate, how the last entering class perceived the relative value of each law school. Students with the highest LSAT/GPA numbers typically have the greatest number of choices in terms of schools and scholarships. As a result, the GPA/LSAT scores are highly correlated with the previous year ranking. And, thus, the previous year ranking largely predicts the subsequent year ranking. Second, the numbers give us a crude sense of the quality of the student body before receiving law school education. Such considerations offer guidance to potential employers, but we might ask why those factors are important in any ranking system seeking to assess law school quality from a student perspective.

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RIP, Taz

Professor Andrew Taslitz (Taz) passed away yesterday after a battle with cancer. The loss to the criminal justice community and many of us personally is immeasurable. From even before I joined the legal academy, he was incredibly kind and generous with me. He has always been and will be continue to be an amazing inspiration. He was truly one the most caring, thoughtful, and wonderful people that I have ever met. It is a tragedy that he was taken from us too soon.

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What’s Wrong with the US News Rankings?

Many of the shortcomings of the US News law school rankings have been extensively documented. My purpose here is not to rehash those well-known issues. Instead, I want to outline the ways in which the US News law school rankings may have been a contributing factor in law schools making bad decisions over the last decade. Whether one believes that the economic downturn or structural changes in the legal market have caused employment numbers to decline for graduates, it is helpful to consider how the rankings “game” has led to decisions that have, at a minimum, exacerbated present circumstances. So, in this series of posts, I only want to focus on the potential ways in which the US News rankings may have affirmatively made the situation worse rather than the defects in the rankings system regarding methodology and statistical validity.

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Silence and Evil

Some of you may have read the story of the 55 bodies found at a reform school for boys in Florida. Although the national media is finally paying some attention (law professor Tim Wu deserves some credit for this), I cannot help but wonder the reasons that it isn’t considered true headline news. It is hard to identify a clearer example of a recent story exhibiting  such genuine evil and injustice.

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What do a Writ of Mandamus, 12(b)(6), the Death Penalty, and a Batson Challenge Have in Common?

The answer is Herbert Smulls, who Missouri executed late last night. The last few days of Smulls’ life were filled with a procedural mess involving an en banc Eighth Circuit judgment and a stay of execution by the Supreme Court of the United States. On January 24, by a vote of 7-3, the Eighth Circuit  issued a writ of mandamus on behalf of the Missouri Director of the Department of Corrections directed at the district court judge who the Eighth Circuit found had abused its discretion. The district court had ordered discovery so that Smulls could find out the doctor, pharmacist, and laboratory that were prescribing and supplying the drugs to be used in his execution (and thus, determine if the death penalty drug would cause excessive pain and suffering in violation of the 8th Amendment). The en banc Eighth Circuit granted the extraordinary remedy of a writ of mandamus ordering the the district court to vacate its discovery order. The majority of the Eighth Circuit held that  the district court had abused its discretion by denying Missouri’s 12(b)(6) motion to dismiss on the underlying 8th Amendment claim. Notably, the Eighth Circuit reached its conclusion without mentioning 12(b)(6) at all and it isn’t until the dissent by Judge Bye that the underlying civil claim appellate posture is revealed.

Then, on Monday, the Supreme Court issued a stay barring the execution of Smulls. Doug Berman heard, from a knowledgeable source, that the stay was issued not regarding the 8th Amendment claim, but based upon a Batson challenge (which wasn’t even before the en banc 8th Circuit as far as I can tell). If true, the stay was truly remarkable because Batson challenges (based upon racial exclusion of jurors by the prosecutor) are almost never granted, of little interest to the modern Supreme Court, and usually litigated far earlier in the appellate process. However, yesterday, the Supreme Court lifted its stay and it is unlikely that we will ever find out the details underlying the last minute Batson challenge (if there was one).

My first reaction from a procedural perspective is that there has to be a better way. It is a very strange world were 12(b)(6), mandamus, and the criminal death penalty appear in a single case. Yet, a quick Lexis search revealed 47 other opinions issued with those three legal issues. Notably, all of the recent cases involved litigation over drug cocktails for the death penalty. Significantly, none involved Batson and the Supreme Court was seemingly absent from those cases. In some part, this can be traced back to the Antiterrorism and Effective Death Penalty Act of 1996 which barred second or successive habeas petitions. As a result, defense counsel must exploit other procedures for relief once the collateral habeas appellate process has been exhausted. This case illustrates the bizarre legal gymnastics that result. I joked with my colleague that you could teach most of a federal courts class with just this case.

Reading the Eighth Circuit majority, concurring, and dissent opinions shows that the judges are essentially in the dark on how these disputes should be handled. The majority infers its abuse of discretion finding from dicta in Baze v. Rees. The dissent rightfully, in my opinion, points out that Baze has as much to do with abuse of discretion for denying 12(b)(6) motions to dismiss as does a hot dog. And yet, I can’t completely fault the majority because they have been left with so little guidance from Congress and the Supreme Court that any opinion they issue would have to invent “new” law. The Federal Rules of Civil Procedure and traditional standards of review are simply not well-designed to address death penalty appeals (particularly those on the eve of execution). Whatever one thinks of the value of the Antiterrorism and Effective Death Penalty Act, someone has to clean up this mess or death penalty litigation will likely become even more procedurally absurd.