Archive for the ‘Criminal Law’ Category
posted by Danielle Citron
Professor Mary Anne Franks and fantastic guest blogger makes an important contribution with her latest work “How to Feel Like a Woman, or Why Punishment Is A Drag” (forthcoming UCLA Law Review). Professor Franks focuses on the sexual abuse of men in prison to help us better understand sexual and domestic abuse more generally. As Franks writes:
If a man in prison claims he was made “to feel like a woman,” this is commonly understood to mean that was degraded, dehumanized, and sexualized. This association of femininity with punishment has significant implications for the way our society understands not only the sexual abuse of men in prison, but sexual abuse generally. These important implications are usually overlooked, however, because law and society typically regard prison feminization as a problem of gender transposition: that is, as a problem of men being treated like women. This Article argues that feminization is punitive for both men and women: it is as unnatural and as wrong for women to be degraded, dehumanized, and sexualized under coercive circumstances as it is for men to be. This Article suggests that examining the sexual abuse of men in prisons can help disrupt the persistent and uncritical linking of feminization and women. By reading the sexualized abuse of men in prison as a form of forced drag, this Article hopes to expose the artificiality and violence of compelled feminization. The proper approach to assessing forced feminization is to focus on its oppressive structure, not on the gender of its victims. When we do so, we can see what all victims along the spectrum of sexual and domestic abuse have in common, and to form our social and legal responses accordingly. The phenomenon of male sexual abuse in prison thus provides a potentially illuminating opportunity to think about the structure and consequences of sexual abuse in general. This is significant not least because social and legal responses to sexual abuse outside of the prison setting – where sexual abuse is overwhelmingly experienced by women and committed by men – are constrained by pernicious gender stereotypes and a massive failure of empathy. Understanding the phenomenon of male prison sexual abuse is thus essential not only for addressing a specific problem in carceral institutions, but forces law and society to consider sexual abuse in a productively counter-intuitive way.
Also, as my co-blogger Kaimi notes in our Asides, there is a write up of Prof. Franks in Ocean Drive that captures the force of her intelligence and personal strength.
posted by James Grimmelmann
Wired’s Kevin Poulsen has a great story whose title tells it all: Use a Software Bug to Win Video Poker? That’s a Federal Hacking Case. Two alleged video-poker cheats, John Kane and Andre Nestor, are being prosecuted under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Theirs is a hard case, and it is hard in a way that illustrates why all CFAA cases are hard.
posted by Kaimipono D. Wenger
I attended a fantastic colloquium talk yesterday at which Cynthia Lee (GW) presented on her forthcoming article about the Trayvon Martin case. (The TJSL colloquium committee, including my colleagues Alex Kreit and Meera Deo, have done a fantastic job of bringing speakers to campus.) Professor Lee drew on her own prior work as well as groundbreaking new research, and used the Martin case as a lens:
This Article uses the Trayvon Martin shooting to examine the operation of implicit racial bias in cases involving claims of self-defense. Recent research on race salience by Samuel Sommers and Phoebe Ellsworth suggests that individuals are more likely to overcome their implicit biases if race is made salient than if race is simply a background factor, known but not highlighted. Sommers and Ellsworth demonstrate through empirical research that making race salient, or calling attention to the relevance of race in a given situation, encourages individuals to suppress what would otherwise be automatic stereotypic congruent responses in favor of acting in a more egalitarian manner. Building on these insights, Professor Lee suggests that in the run of the mill case, when an individual claims he shot a young Black male in self-defense, the police, the prosecutor, the judge, and the jury are likely to find reasonable the individual’s claim that he felt he was being threatened by the young Black male unless mechanisms are in place to make the operation of racial stereotypes in the creation of fear salient. In the Trayvon Martin case, race was made salient by the huge public outcry over the Sanford Police Department’s failure to arrest Zimmerman and extensive media coverage. Most criminal cases, however, do not receive the kind of media attention received by the Trayvon Martin case. In most interracial criminal cases, race is a background factor but generally is not something either party tries to highlight. Professor Lee concludes with some suggestions as to how prosecutors and defense attorneys concerned about the operation of implicit racial bias can make race salient in the criminal courtroom.
Professor Lee’s previous scholarship has explored in some detail the ways in which racial biases can infect verdicts, especially in areas like self-defense where subjective intent can be important. Her article Race and Self-Defense is foundational, and I assign it every year in my Critical Race Theory class (along with other important work in this area, like Paul Butler‘s writings on jury nullification and on mass incarceration). It was a delight to hear Professor Lee present about her new work, and I’ll absolutely be using this as I teach in the fall. And Professor’s Lee’s talk illustrated one silver lining to the Trayvon Martin case: The intense media scrutiny focused public attention on possible racial biases, and this created a public awareness which may ultimately lead to a more just criminal justice system.
posted by Gerard Magliocca
I want to add one aside to the capture of the suspect in Boston last night. It is possible that he will be charged with federal crimes related to terrorism. If so, then he could be eligible for the death penalty. Massachusetts, on the other hand, does not have the death penalty for state crimes.
I’ve posted before about the federalism issue presented by this sort of situation. Of course the U.S. Attorney can seek the death penalty, but is that the right thing to do when the state where the prosecution will occur opposes the death penalty? Will a Massachusetts jury even apply the death penalty? Long way to go before those decisions get made, of course, but it’s worth thinking about.
posted by Deven Desai
Some day we might do away with pretext traffic stops, because some day autonomous vehicles will be common. At ReInventlaw Silicon Valley, David Estrada from GoogleX, made the pitch for laws to allow autonomous vehicles a bright future. He went to the core reasons such fuel sustainability and faster commutes. He also used the tear jerking commercial that showed the true benefits of enabling those who cannot drive to drive. I have heard that before. But I think David also said that the cars are required to obey all traffic laws.
If so, that has some interesting implications.
I think that once autonomous vehicles are on the road in large numbers, the police will not be able to claim that some minor traffic violation required pulling someone over and then searching the car. If a stop is made, like the Tesla testing arguments, the car will have rich data to verify that the car was obeying laws.
These vehicles should also alter current government income streams. These shifts are not often obvious to start but hit home quickly. For example, when cell phones appeared, colleges lost their income from high rates for a phone in a dorm room. That turned out out to be a decent revenue stream. If autonomous vehicles obey traffic laws, income from traffic violations should go down. Cities, counties, and states will have to find new ways to make up that revenue stream. Insurance companies should have much lower income as well.
I love to drive. I will probably not like giving up that experience. Nonetheless, reduced traffic accidents, fewer drunk drivers, more mobility for the elderly and the young (imagine a car that handled shuttling kids from soccer, ballet, music, etc., picking you up, dropping you home, and then gathering the kids while you cooked a meal (yes, should I have kids, I hope to cook for them). The time efficiency is great. Plus one might subscribe to a car service so that the $10,000-$40,000 car is not spending its time in disuse most of the day. Add to all that a world where law enforcement is better used and insurance is less needed, and I may have to give in to a world where driving myself is a luxury.
posted by UCLA Law Review
Volume 60, Discourse
|Edifying Thoughts of a Patent Watcher: The Nature of DNA
|Dan L. Burk
David H. Kaye
posted by Mary Anne Franks
First, I want to thank my hosts here at Concurring Opinions for asking me to stay on for another month. One of the things this extended invitation allows me to do is to respond at some length to issues raised in the comments on my last post, “The Dangerous Fragility of Men.” In that post, I highlighted a troubling phenomenon: men with privilege and power characterizing their insecurities and lack of self-control as vulnerability, and using that alleged vulnerability as an excuse or justification for murder, rape, and discrimination (and I would add, though I didn’t discuss it in the post, harassment and intimidation). To demonstrate this phenomenon, I offered a sample of quotations from recent, high-profile cases including Oscar Pistorius‘ shooting of his girlfriend and the gang rape of an 11-year-old girl in Texas. The post suggested that our society should make a greater effort both to marginalize this cowardice and become more attentive to actual vulnerability. In this post, I’d like to elaborate on these ideas and address some of the objections raised in the responses to my post.
I first want to spend a bit more time on the question of perceived v. actual vulnerability. I noted in my original post that one of the perplexing aspects of this form of male vulnerability is that it seems to increase, rather than decrease, with power or privilege. Frequently, the men using weakness as an excuse or justification (or others offering such explanations on their behalf) for harm are people who are objectively less vulnerable than most. They include famous athletes, soldiers, and wealthy businessmen. I think it is worth spelling this out more explicitly: there is a tendency on the part of privileged individuals to overstate their vulnerability. This tendency towards exaggerated sensitivity is important because it stunts what might otherwise be a meaningful process of self-examination. Feeling vulnerable is not the same thing as being vulnerable, and even actual vulnerability might need to yield before (or at least take into consideration) the greater vulnerability of other people.
We are all vulnerable in certain ways. Figuring out the what and why of our vulnerabilities is an important part of psychological awareness and well-being. What is of most interest to me here, however, is determining the conditions under which it is permissible for us to impose our vulnerabilities on other people, especially when that imposition takes the form of violence or discrimination. In determining those conditions, I would suggest we should ask ourselves at least three questions. One, we should question whether our vulnerability is objectively reasonable. Vulnerability that results from personal insecurity or prejudice is not vulnerability that we may rightfully impose on others. It is our own responsibility to correct vulnerabilities of our own creation. Second, we should question the magnitude of our vulnerability, especially when put in perspective with the vulnerabilities of others. Third, even if our vulnerability is both reasonable and of serious magnitude, we should question whether we are imposing it on appropriate parties in a just and proportional way. Read the rest of this post »
posted by Mary Anne Franks
“I have also been a victim of violence and of burglaries before… I felt a sense of terror rushing over me … I was too scared to switch a light on.” Oscar Pistorius relating his state of mind before shooting his girlfriend Reeva Steenkamp four times through a bathroom door.
She “knew exactly how to press his buttons and make him angry.” Jovan Belcher complaining to his mistress about his girlfriend, Kassandra Perkins, before shooting Perkins nine times in front of their baby daughter.
“Like the spider and the fly. Wasn’t she saying, ‘Come into my parlor, said the spider to the fly?” Defense attorney Steve Taylor describing the 11-year old girl gang-raped by more than a dozen men in Cleveland, Texas.
“And it’s – all he sees are heavily tinted windows, which are up and the back windows which are down, and the car has at least four black men in it…” Defense attorney Robin Lemonidis explaining why her client, Michael Dunn, shot into a vehicle of unarmed teenagers eight times, killing 17-year-old Jordan Davis.
“Hurricanes. Tornadoes. Riots. Terrorists. Gangs. Lone criminals… These are perils we are sure to face — not just maybe. It’s not paranoia to buy a gun. It’s survival.” Wayne LaPierre, Executive Vice President of the National Rifle Association, objecting to the Obama Administration’s consideration of gun regulation.
“It’s a fear of the unknown… I’ve never seen a woman get killed or wounded. In my mind they may resemble my wife and I don’t know how I would react. It’s one thing to see a man injured or killed but a woman, now that’s a different story,” Staff Sergeant Alex Reyes, voicing his objection to lifting the formal ban on women in combat.
According to traditional gender stereotypes, men are supposedly stronger, braver, and less emotional than women. However unfair or inaccurate, this belief, along with the association of vulnerability, anxiety, and fear with women, has persisted throughout most of Western history. Once one scratches the surface of this myth, however, it becomes apparent that stereotypical “masculinity” (and “hyper-masculinity” even more so) is in fact defined by fragility. This fragility, moreover, is of a truly perplexing nature: it actually increases, rather than decreases, with power and privilege. Why did a world-renowned athlete who lives in a “fortified mansion surrounded by barbed wire” not even stop to turn on a light before shooting his girlfriend four times (if one takes seriously Pistorius’ claim that the shooting was an accident)? Because he was so intensely afraid of being victimized by burglars. Why did a popular NFL linebacker shoot the mother of their infant daughter nine times at close range? Because she did things that made him angry and scared, like staying out late at a concert. Why did more than a dozen men take turns raping an 11-year-old girl, one of them recording the rapes on his cellphone? Because they were so overwhelmed by her seductive clothes and makeup that they couldn’t control themselves. Why did a middle-aged white man with a gun in his glove compartment shoot eight times into a vehicle with four teenagers in it? Because he was so scared of the teenagers’ loud music and attitude that he imagined they must be pointing a gun at him. Why do American citizens – even those who live in gated, high-security enclaves complete with security guards, alarm systems, and identification checkpoints – need an infinite number of virtually unregulated, high-capacity weapons? Because hurricanes and terrorists threaten their very survival. Why should qualified women be denied the opportunity to be recognized and promoted for combat activity? Because some male soldiers – supposedly well-trained, experienced male soldiers – might become paralyzed by the sight of a woman in distress.
This is not the “New Age sensitive male” mocked by comedians and pundits. These men don’t ask questions or cry when they feel vulnerable: they kill, rape, and discriminate. And society largely allows, even encourages, them to do so. Instead of demanding that these men take responsibility for their own weaknesses, our society accommodates and excuses them. This is the flip side of blaming the victim: excusing (or justifying) the perpetrator. The time and energy spent criticizing a girlfriend’s supposed greediness, or an 11 year-old girl’s supposedly provocative clothing, or teenagers’ supposedly loud music could be spent challenging and marginalizing the inability of certain men to control themselves.
To acknowledge and reflect on one’s vulnerability is a good thing; to hold the world in thrall to it is not. Feeling vulnerable is often different from actually being vulnerable, and even actual vulnerabilities should not be used as a license for malicious or reckless behavior. With the supposed vulnerability of famous athletes, soldiers, and gun owners everywhere on display, perhaps we can also appreciate the vulnerability of those far more at risk.
posted by UCLA Law Review
Volume 60, Issue 3 (February 2013)
|Urban Bias, Rural Sexual Minorities, and the Courts||Luke A. Boso||562|
|Private Equity and Executive Compensation||Robert J. Jackson, Jr.||638|
|The New Investor||Tom C.W. Lin||678|
|The Fate of the Collateral Source Rule After Healthcare Reform||Ann S. Levin||736|
|A New Strategy for Neutralizing the Gay Panic Defense at Trial: Lessons From the Lawrence King Case||David Alan Perkiss||778|
posted by Mary Anne Franks
As promised in the comments section of my last post, I offer in this post the outline of my proposal to effectively combat revenge porn. A few preliminary notes: one, this is very much a work in progress as well as being my first foray into drafting legislative language of any kind. Two, a note about terminology: while “revenge porn” is an attention-grabbing term, it is imprecise and potentially misleading. The best I have come up with as a replacement is “non-consensual pornography,” so that is the term I will use throughout this post. I would be interested to hear suggestions for a better term as well as any other constructive thoughts and feedback.
I want to emphasize at the outset that the problem of non-consensual pornography is not limited to the scenarios that receive the most media attention, that is, when A gives B (often an intimate partner) an intimate photo that B distributes without A’s consent. Non-consensual pornography includes the recording and broadcasting of a sexual assault for prurient purposes and distributing sexually graphic images obtained through hacking or other illicit means. Whatever one’s views on pornography more broadly, it should be a non-controversial proposition that pornography must at a minimum be restricted to individuals who are (1. adults and (2. consenting. Federal and state laws take the first very seriously; it is time they took consent requirements seriously as well.
Before I offer my proposal for what a federal criminal prohibition of non-consensual pornography could look like, I want to explain why looking to federal criminal law is the most appropriate and effective response to the problem. In doing so, I do not mean to suggest that other avenues are illegitimate or ill-advised. I support the use of existing laws or other reform proposals to the extent that they are able to deter non-consensual pornography or provide assistance to victims. That being said, here is my case for why federal criminal law is the best way to address non-consensual pornography, in Q&A form.
posted by UCLA Law Review
Volume 60, Discourse
|Discovery From the Trenches: The Future of Brady||Laurie L. Levenson||74|
posted by Lawrence Cunningham
In this season’s law review submission process, I am circulating an article about deferred prosecution agreements (DPAs) and corporate governance. DPAs are controversial tools increasingly-used to settle corporate criminal cases, usually without indictment. Targets admit facts, pay fines and promise governance reforms—such as replacing officers, adding directors and prescribing reporting lines.
Some view DPAs as coerced extractions of overzealous prosecutors, while others say they are mere whitewash that let corporate crooks off the hook. The weight of commentary urges prosecutors to get out of this business, to avoid corporate governance entirely, while some wonder why the intrusions are not deeper and more frequent.
I explain why prosecutors should invest in corporate governance and take a measured approach to reforming it. Ignoring governance can be perilous and embracing it can produce more effective reforms.
My diagnosis indicates a lack of both investment and transparency so I make two prescriptions: prosecutors should profile the corporate governance of businesses they target at the outset and publicly articulate rationales for reforms when settling.
The paper first surveys the landscape of contemporary corporate governance, stressing two normative points. First: one-size-does-not fit all. Corporate governance varies enormously from company to company, depending on such factors as ownership structures, management characteristics and employment policies. Second: failure to appreciate that poses serious risks, always to given companies, and sometimes to the economy at large.
That is the proper lesson to draw from the 2002 case of Arthur Andersen, where an indictment destroyed the auditing firm because it was a partnership owned and managed by its members in the veracity business.
Instead, prosecutors took a broader and cruder lesson: that they should always be averse to indicting any large business. The result of that aversion has been the proliferation of DPAs—which, despite controversy and criticism, is not necessarily a bad effect, so long as these lessons are incorporated into their production.
posted by Lawrence Cunningham
To show he is getting tougher on Wall Street, President Obama has nominated Mary Jo White, the former head of the U.S. Attorney’s office in New York, as chair of the SEC. White oversaw the prosecutions of John Gotti and the terrorists responsible for the 1993 World Trade Center bombings and is a veteran of white collar criminal prosecutions and defense.
Many Americans applaud such displays of toughness, worried that “too big to fail” means “too big to jail.” That is, criminal indictment of a large financial institution threatens its existence and, along with it, economic recovery.
But prosecutors are getting tough on big banks, evident in the recent LIBOR interest rate rigging cases, such as that against Royal Bank of Scotland announced this week, and the money laundering case at HSBC made at year-end. Prosecutors resolved these cases by obtaining admissions of guilt and large fines in exchange for deferring prosecution under agreements that require good corporate behavior for several years.
Under such deferred prosecution agreements, or DPAs, prosecutors flex their muscles by imposing extensive internal reforms at the company. Their goal is to change corporate culture to promote greater accountability and likelihood of compliance with law. Some terms, however, may go overboard, and there is reason to worry about unintended consequences.
Such deals typically require the company to hire an army of compliance officers to roam the company in search of rogues and to train employees in the best practices of compliance programming. In many cases, DPAs require hiring an outside consultant to direct additional steps to be taken and an independent monitor to watch over all the changes during the probation period.
But installing such personnel and programs is no guarantee of succeeding in promoting any particular culture or result. Corporations differ in their histories, philosophies, and business models, negating the possibility of a one-size-fits-all approach to altering culture in desired ways. (For a dramatic example of the danger, consider the experience at AIG from 2005 to 2008, which I document in the new book The AIG Story, and which is summarized in this week’s review of the book in the Wall Street Journal.) Prosecutors often do not understand corporate governance well enough to direct reforms and they rarely explain their reasons when they impose such changes.
Prosecutors should enforce the law and hold people and institutions accountable for violations. When prudent they should settle a matter on terms that may include internal corporate reforms. But they also must make an effort to assure that the reforms they propose will work with the valid parts of the corporate cultures where they are implanted. Failure to do so can be disastrous. When the Senate evaluates Ms. White’s nomination for SEC chair, Senators would do well to ask what she thinks about using DPAs to reform corporate culture.
posted by Gerard Magliocca
I don’t know anything about the suicide of Aaron Swartz except what I’ve read in the papers. I do, though, have a question for any prosecutors or former prosecutors that read this blog.
Suppose you knew that a criminal suspect or defendant was suicidal or in a fragile state of mind. To what extent, if at all, would that weigh in your charging decision or plea negotiations? I do not know whether the federal prosecutor in the Swartz had an inkling that he could kill himself, but I’m curious about how people handle that if they do think that’s a real concern.
posted by UCLA Law Review
Volume 60, Discourse
|Sweeping Up Guideline Floors:
The Misguided Policy of Amendment 767
to the U.S. Sentencing Guidelines Manual
posted by Dave Hoffman
Like many of you, I’ve been horrified by the events in Newtown, and dismayed by the debate that has followed. Josh Marshall (at TPM) thinks that “this is quickly veering from the merely stupid to a pretty ugly kind of victim-blaming.” Naive realism, meet thy kettle! Contrary to what you’ll see on various liberal outlets, the NRA didn’t cause Adam Lanza to kill innocent children and adults, nor did Alan Gura or the army of academics who helped to build the case for an individual right to gun ownership. Reading discussions on the web, you might come to believe that we don’t all share the goal of a society where the moral order is preserved, and where our children can be put on the bus to school without a qualm.
But we do.
We just disagree about how to make it happen.
Dan Kahan’s post on the relationship between “the gun debate”, “gun deaths”, and Newtown is thus very timely. Dan argues that if we really wanted to decrease gun deaths, we should try legalizing drugs. (I’d argue, following Bill Stuntz, that we also/either would hire many more police while returning much more power to local control). But decreasing gun deaths overall won’t (probably) change the likelihood of events like these:
“But here’s another thing to note: these very sad incidents “represent only a sliver of America’s overall gun violence.” Those who are appropriately interested in reducing gun homicides generally and who are (also appropriately) making this tragedy the occasion to discuss how we as a society can and must do more to make our citizens safe, and who are, in the course of making their arguments invoking(appropraitely!) the overall gun homicide rate should be focusing on what we can be done most directly and feasibly to save the most lives.
Repealing drug laws would do more — much, much, much more — than banning assault rifles (a measure I would agree is quite appropriate); barring carrying of concealed handguns in public (I’d vote for that in my state, if after hearing from people who felt differently from me, I could give an account of my position that fairly meets their points and doesn’t trade on tacit hostility toward or mere incomprehension of whatever contribution owning a gun makes to their experience of a meaningful free life); closing the “gun show” loophole; extending waiting periods etc. Or at least there is evidence for believing that, and we are entitled to make policy on the best understanding we can form of how the world works so long as we are open to new evidence and aren’t otherwise interfering with liberties that we ought, in a liberal society, to respect.”
Dan’s post is trying to productively redirect our public debate, and I wanted to use this platform to bring more attention to his point. But, I think he’s missing something, and if you follow me after the jump, I’ll tell you what.
posted by Gaia Bernstein
An unfortunate event took place this week. A six year old boy’s foot was run over by a school bus. As a result, the boy’s mother who sent the boy and his somewhat older brother unsupervised to the bus station was arrested and charged with child abuse and neglect. It turns out that in 2012, sending a six year old and his older brother to await the school bus by themselves is an unacceptable parenting standard warranting parental arrest.
This made me think back to the 1970s, when I grew up in Israel, and from the age of six walked by myself to the bus station and took the public bus – not even a school bus — to school. Luckily, my foot was not run over by a bus. But even if it had I doubt my parents would have been arrested or even blamed for inappropriate parenting. All my classmates either walked by themselves up to twenty minutes to school or if they lived further away, as I did, took the public bus.
There is no doubt parenting norms have changed since I was a child. Many now recognize that parenting has become more intensive, involved and monitoring. In an article titled Over-Parenting, my co-author Zvi Triger and I worried about the impact of these changes on legal standards. We recognized that while intensive parenting carries some advantages and may be a suitable parenting practice for some, embedding it in legal standards would impose it on those culturally unwilling or financially unable to endorse it. We recognized that intensive parenting is mainly an upper-middle class practice that for others could become over-parenting.
Is it a good parenting norm to accompany young children to the bus stop? probably yes. But aren’t the real questions: Is the specific child mature enough to be safely standing at a bus stop ? Is the neighborhood a relatively safe neighborhood traffic and crime-wise? And also, can parents afford to wait with their child in the morning or do they have no choice but to rush off to work for an early morning shift in order to support their families? These are questions to be answered by parents not by the law.
posted by Karen Newirth
I also thank Danielle and Brandon for including me in this symposium, and am very happy to join the discussion of four very important works on the state of the criminal justice system in America today.
The reference to the Central Park Five in Danielle’s original post highlights one of the most important qualities of Convicting the Innocent: it uses the powerfully told stories of the exonerated to bring to life the new and important detail about the causes of wrongful convictions that Garrett’s research has uncovered. The result is the fullest picture to date of the scope of the “nightmarish reality” that has led to 301 DNA-based exonerations in this country. Convicting the Innocent is not only a great read for lawyers and lay people alike, it is also a powerful tool for bringing about much-needed systemic change. Dan Medwed’s post appropriately asks whether the works being discussed here urge change that is gradual and specific or change that is revolutionary, going to the heart of the adversary system. In the context of eyewitness misidentification – the leading contributing cause of wrongful convictions, occurring in (as Garrett found) 75 percent of the first 250 exonerations – we see great success in effecting change in both courts and police precincts alike. Brandon Garrett’s research has been critical to these successful reform efforts.
As the attorney responsible for the Innocence Project‘s work in the area of eyewitness identification, I have relied on Convicting the Innocent in my efforts to educate attorneys, judges and policy makers about the perils of misidentification and the flaws in the current legal framework for evaluating identification evidence at trial that is applied in nearly all jurisdictions in the United States. That legal framework, set forth by the Supreme Court in Manson v. Brathwaite, directs courts to balance the effects of improper police suggestion in identification procedures with certain “reliability factors” – the witness’s opportunity to view the perpetrator, the attention paid by the witness, the witness’s certainty in the identification, the time between the crime and confrontation and the accuracy of the witness’s description. (These factors are not exclusive, but most courts treat them as if they are.)
Psychological research in the area of perception and memory has offered conclusive evidence that the identified reliability factors are not well-correlated with accuracy; do not objectively reflect reality to the extent that they are self-reported; and – most critically – are inflated by suggestion, leading to the perverse result that the more suggestive the identification procedure, the higher the measures of reliability under the Manson test.
Garrett’s work in Convicting the Innocent adds an important dimension to the psychological research – and makes even more urgent the call to reform the Manson test – by demonstrating that the Manson test failed in the cases of the 190 exonerees who were convicted based, at least in part, on identification evidence that was either not challenged or admitted as reliable under Manson. Garrett’s work shows just how the Manson reliability factors fail to ensure reliability: in most cases reviewed by Garrett, the witnesses had poor viewing opportunities; had only a few seconds to see the perpetrator’s face, which was often disguised or otherwise obscured; made identifications weeks or months after the crime; and provided descriptions that were substantially different from the wrongly accused’s appearance. In addition, almost all of the witnesses in the cases reviewed by Garrett expressed complete confidence at trial – stating for example that “there is absolutely no question in my mind” (Steven Avery’s case); that “[t]his is the man or it is his twin brother” (Thomas Doswell’s case) – although DNA later proved that these witnesses were entirely wrong. Perhaps most striking of all of Garrett’s research findings in the area of eyewitness misidentification is that in 57 percent of the trials with certain eyewitnesses, the witnesses had expressed earlier uncertainty (strongly suggesting that the identification was unreliable), but only 21 percent of these witnesses admitted their earlier uncertainty.
The Innocence Project has relied on Garrett’s research in advocating for the reform of the legal framework for evaluating identification evidence in courts around the country, from the U.S. Supreme Court (Perry v. New Hampshire) to state supreme courts from Oregon (State v. Lawson) and Washington (State v. Allen) to New Jersey (State v. Henderson) and Pennsylvania (State v. Walker). In two of these cases – Henderson and Lawson – high courts found that Manson fails to ensure reliability and implemented new legal tests that better reflect the scientific research and, we hope, will better prevent wrongful convictions based on eyewitness misidentification. Both the Henderson and Lawson courts cited Convicting the Innocent in rendering their decisions, demonstrating just how powerful a force for change Garrett’s work is.
posted by Brandon Garrett
That image is from the false confession of Ronald Jones, a man whose tragic story begins my book, Convicting the Innocent: Where Criminal Prosecutions Go Wrong. In fact, it is an image of his entire false confession, at least the statement that the detectives had typed at the end of eight grueling hours of interrogation in Chicago in the mid-1980s. I turned the statement into a word cloud to illustrate the words that Jones had repeated the most. In his statement, Jones was unfailingly polite, and according to the police stenographer, at least, he responded “Yes, Sir,” as the detectives asked him questions. In reality, he alleged at trial, detectives had brutally threatened him, beat him, and told him what to say about a crime he did not commit. The jury readily sentenced Jones to death for a brutal rape and murder on Chicago’s South Side.
The word cloud shows why the jury put Jones on death row. Some of the most prominent words, after “Yes, Sir,” are key details about the crime scene: that there was a knife, that the murder occurred in the abandoned Crest hotel, that the killer left through a window. Jones protested his innocence at trial, but those facts were powerfully damning. The lead detective had testified at trial Jones told them in the interrogation room exactly how the victim was assaulted and killed, and finally signed that confession statement. The detectives said they brought Jones to the crime scene where Jones supposedly showed them where and how the murder occurred. After his trial, Jones lost all of his appeals. Once DNA testing was possible in the mid-1990s, he was denied DNA testing by a judge who was so convinced by his confession statement that he remarked, “What issue could possibly be resolved by DNA testing?”
In my book, I examined what went wrong in the first 250 DNA exonerations in the U.S. Jones was exonerated by a post-conviction DNA test. Now we know that his confession, like 40 other DNA exoneree confessions, was not just false, but likely contaminated during a botched interrogation. Now we know that 190 people had eyewitnesses misidentify them, typically due to unsound lineup procedures. Now we know that flawed forensics, in about half of the cases, contributed to a wrongful conviction. Now we know that informants, in over 50 of the cases, lied at trial. Resource pages with data from the book about each of these problems, and with material from these remarkable trials of exonerees, are available online.
Returning to Ronald Jones’ false confession, the Supreme Court has not intervened to regulate the reliability of confessions, such as by asking courts to inquire whether there was contamination, or simply requiring videotaping so that we know who said what and whether the suspect actually knew the actual facts of the crime. Typical of its rulings on the reliability of evidence in criminal cases, the Court held in Colorado v. Connelly that though a confession statement “might be proved to be quite unreliable . . . this is a matter to be governed by the evidentiary laws of the forum . . . not by the Due Process Clause of the Fourteenth Amendment.” Preventing wrongful convictions has largely fallen on the states. I end the book with optimism that we are starting to see stirrings of a criminal justice reform movement.
posted by Danielle Citron
Over at Jotwell, Jonathan Simon has a spot-on review of my colleague Leslie Meltzer Henry’s brilliant article, The Jurisprudence of Dignity, 160 U. Penn. L. Rev. 169 (2011). Henry’s work on dignity is as illuminating as it is ambitious. I urge you to read the piece. Here is Simon’s review:
Today American law, especially Eighth Amendment law, seems to be in the middle of a dignity tsunami. The United States is not alone in this regard, or even in the lead. Indeed dignity has been an increasingly prominent value in modern legal systems internationally since the middle of the 20th century, marked in the prominence given that term in such foundational documents of the contemporary age as the Universal Declaration of Human Rights, in the reconstructed legal systems of post-war Europe (particularly Germany), and in regional human rights treaties like the European Convention on Human Rights and the more recent European Union Charter of Rights. A stronger version of dignity seems increasingly central to reforming America’s distended and degrading penal state. Legal historians have suggested that American history — particularly, the absence of a prolonged political struggle with the aristocracy and the extended experience with slavery — rendered dignity a less powerful norm, which may explain the relative weak influence of dignity before now. Yet its increasing salience in the Roberts Court suggests that American dignity jurisprudence may be about to spring forward.
Professor Leslie Henry’s 2011 article, The Jurisprudence of Dignity, is a must-read for anyone interested in taming our penal state. Henry provides a comprehensive analysis of the US Supreme Court’s treatment of the term from the founding to the present. Henry borrows from the language philosopher Ludwig Wittgenstein the concept of a “family resemblance” and suggests that dignity as a legal term is anchored in five core meanings that continue to have relevance in contemporary law and which share overlapping features (but not a single set of factors describing all of them). The five clusters are: “institutional status as dignity,” “equality as dignity,” “liberty as dignity,” “personal integrity as dignity,” and “collective virtue as dignity.” These clusters suggest there can be both considerable reach but also precision and limits to using dignity to shape constitutional doctrine.
For much of the period between the Revolution and the middle of the 20thcentury, the meaning of dignity was confined largely to the first category, “institutional status as dignity.” Dignity by status dates from the earliest Greek and Roman conceptions, when dignity was associated with those of high status and conceptualized as anchored in that status. The United States by the time of the Constitution renounced the power to ennoble an aristocracy but shifted that hierarchical sense of dignity to the state itself and its officials. For much of the next century and a half, dignity is discussed mostly as a property of government, especially states and courts. This began to change in the 20th century, and the change accelerated significantly after World War II. Read the rest of this post »