(re)defining violent felonies

A while back, while blogging about the juvenile justice resolution, I tried to find a solid definition of the phrase "violent felonies," looking to the Armed Career Criminal Act of 1984.

A recent Supreme Court ruling hinges on an ambiguity I hadn't explored: section 924, (B) (ii):

(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another[emphasis added]

In a 6-3 decision, SCOTUS found that fleeing from police in a vehicle constitutes a violent felony under this definition.

Mr. Sykes’s flight was dangerous, Justice Anthony M. Kennedy wrote for the majority. “Sykes wove through traffic, drove on the wrong side of the road and through yards containing bystanders, passed through a fence and struck the rear of a house,” Justice Kennedy wrote.

But, Justice Kennedy went on, the issue was not whether Mr. Sykes’s actual conduct had been violent. Rather, it was whether the crime he had been convicted of was as a general matter a crime of violence.

As a matter of both common experience and statistics, Justice Kennedy wrote, the answer was yes. Fleeing from the police in a car, he wrote, “is a provocative and dangerous act that dares, and in a typical case requires, the officer to give chase.”

Scalia penned the strongest dissent:

Justice Antonin Scalia, writing only for himself, issued a vigorous dissent. He said the provision of the federal law under review (“involves conduct that presents a serious potential risk of physical injury to another”) was a hopelessly vague Congressional “drafting failure” and that “today’s tutti-frutti opinion” produces “a fourth ad hoc judgment that will sow further confusion.”

The phrase "otherwise involves conduct that presents a serious potential risk of physical injury to another" may be broad, but the context--as part of a "crime" or "act of juvenile delinquency"--limits the scope, which is probably why six justices lined up in favor of the broad reading.

As an aside, what is a "potential risk?" Isn't any risk inherently "potential?" Lawyer friends, help me out here.



[via Glenn Reynolds]

decriminalization no longer a fringe movement

A mix of former global political figures and business executives are calling for an end, of sorts, to the War on Drugs. The Guardian's Jamie Doward reports:

Former presidents, prime ministers, eminent economists and leading members of the business community will unite behind a call for a shift in global drug policy. The Global Commission on Drug Policy will host a press conference at the Waldorf Astoria hotel in New York to launch a report that describes the drug war as a failure and calls for a "paradigm shift" in approaching the issue.

Those backing the call include Ernesto Zedillo, former president of Mexico; George Papandreou, former prime minister of Greece; César Gaviria, former president of Colombia; Kofi Annan, former UN secretary general; Fernando Henrique Cardoso, former president of Brazil; George Shultz, former US secretary of state; Javier Solana, former EU high representative; Virgin tycoon Richard Branson; and Paul Volcker, former chairman of the US Federal Reserve.

The commission will call for drug policy to move from being focused on criminal justice towards a public health approach. The global advocacy organisation Avaaz, which has nine million members, will present a petition in support of the commission's recommendations to UN secretary general Ban Ki-moon.

But don't expect an armistice--or even a truce--any time soon. Jacob Sullum explains:

As the report makes clear, the commission, whether for ideological or tactical reasons, is not prepared to renounce the use of force to stop people from consuming politically incorrect intoxicants. It wants to lighten up on users and low-level suppliers while cracking down on "violent criminal organizations...in ways that undermine their power and reach while prioritizing the reduction of violence and intimidation." But it is prohibition that enriches and empowers such organizations while encouraging them to be violent. As the Mexican government has vividly demonstrated since 2006, fighting drug cartels escalates the violence associated with the black market, which will persist as long as supplying people with the drugs they want remains illegal. The commission knows this: It quotes a study concluding that "drug-related violence and high homicide rates are likely a natural consequence of drug prohibition" and that "increasingly sophisticated and well-resourced methods of disrupting drug distribution networks may unintentionally increase violence."

Violence that continues apace.

The Wire short-circuits in Seattle

Anyone interested in criminal justice and civil liberties in the Age of Perpetual Terrorism should read Brendan Kiley's deconstruction of an FBI investigation gone wrong--because it could never go right.

"The degree of surveillance and monitoring has been extremely expensive," the officer tells Rick, sounding equal parts intimidating and frustrated. "When you've gone to the QFC and Corsair and Tubs. Think over the last two years—everything you've done in private and on the streets, people you've talked to, what you've had in your possession, conversations, intentions, plans... I have to emphasize the level of surveillance we've run over the last two years. Tell us about all the drug deals in The Yard. You want me to tell you about the red cabinet where you keep the drugs? The cocaine? We have hundreds of hours of surveillance, wire, video..."

"That would seem to be an absurd waste of state financing and funding," Rick says. "And that actually scares me more than the charges... You guys aren't after anything bigger than this? This is it?..."

The Seattle police seem to think that Rick's guns point toward some kind of guilt.

"Why the need to have so many weapons on the premises?" one of the officers asks.

"My home?" Rick asks, sounding flabbergasted. "That's my home. I own a small amount of firearms legally, most of which are locked in an extremely secure gun safe in an unloaded manner. I'm a man from Oklahoma," he continues, "and there's no such thing as a man from Oklahoma who doesn't own a firearm or two. Even the hippies own guns."

The agents sit silent, seemingly flummoxed. They've pursued this target for years, luring him into a bust that they hoped would scare him into giving up some valuable intelligence about domestic terrorists, or city politicians, or at least some drug dealers. But they've fundamentally misunderstood their own investigation.

And what does it get them? Four indigent poker players.

The defendants are quiet, well dressed, and bewildered by the charges. One of them told me that the poker stakes were so low, he would lose or win $100 at most in the course of a night. ("All those guys were broke, broke as a joke," Mia Brown agrees. "They'd borrow five dollars from someone to go put on the card table. It was small and it was stupid.")

The defense lawyers will be bewildered by what they find in the discovery process--all the paperwork and evidence and audio and video surveillance accumulated by the two-year investigation that involved the FBI, SPD, SWAT teams, and federal firearms and immigration and customs agents. One defendant's discovery request turned up nearly 2,000 pages of documentation and over 100 CDs and DVDs, and even that defendant's attorney had to file extra requests because he said there were big gaps of time missing.

Why did law enforcement dedicate such massive resources to bust some penny-ante card players for charges that only one person has faced in the past 10 years?

One of the defendants, Brady McGarry, had a simple explanation: "If you spend that much time and money, you have to put somebody up on that cross."

Read the whole thing, if you have the patience--and stomach--for it.

the Seattle Times endorses legalizing marijuana

The Seattle Times has taken up the cause of legalizing marijuana. First, in its own editorial:

Marijuana should be legalized, regulated and taxed. The push to repeal federal prohibition should come from the states, and it should begin with the state of Washington.

In 1998, Washington was one of the earliest to vote for medical marijuana. It was a leap of faith, and the right decision. In 2003, Seattle was one of the first places in America to vote to make simple marijuana possession the lowest police priority. That, too, was a leap of faith, and the right decision. A year ago, City Attorney Pete Holmes stopped all prosecutions for simple possession: the right decision.

It is time for the next step. It is a leap, yes — but not such a big one, now.

Second, in an op-ed written by Norm Stamper, a former police chief, and the anti-Kerlikowske:

A fundamental change in drug policy seems daunting, but we've done it before with the repeal of alcohol prohibition. Today, you no longer see gangs shooting each other over beer and liquor market share. And both the president and Kerlikowske have compared drug use to cigarettes, pointing to the success of public-education campaigns in reducing the number of smokers.

But have they forgotten that we have not sent one person to jail for smoking Marlboros? If we can successfully manage alcohol and tobacco under a public-health model, we can do the same for all other drugs.

Here in Washington state, talk of legalization has hit the mainstream, and has prohibitionists on the defensive.

And it's about time.

juveniles and due process rights

Regarding the juvenile justice resolution, I've seen several successful Aff cases that are based on providing full due process rights for juveniles. The reasoning goes like this:

1. Procedural justice is the best justice any government can promise.
2. Punishment is excluded from the conversation (since methods of punishment aren't inherent in the way that due process rights are).
3. Juveniles deserve the same procedural protections / rights as adults.
4. They don't receive those rights in the juvenile justice system.
5. Affirming the resolution ensures that juveniles get the rights they deserve.

If you'll notice, these arguments include two implicit values: justice as desert or justice as fairness, the moral aims of procedural justice. (If you doubt this, simply ask yourself: why do we care about procedural justice? If your answer is "because we deserve it," or "because it's fair," there you go.)

What process rights are juveniles due?

A 1967 decision by the Supreme Court [In re Gault] affirmed the necessity of requiring juvenile courts to respect the due process of law rights of juveniles during their proceedings.... The Supreme Court decision, delivered by Justice Abe Fortas, emphasized that youth had a right to receive fair treatment under the law and pointed out the following rights of minors:

• The right to receive notice of charges
• The right to obtain legal counsel
• The right to "confrontation and cross-examination"
• The "privilege against self-incrimination"
• The right to receive a "transcript of the proceedings," and
• The right to "appellate review"

Conspicuously absent is the right to a jury trial. This alone could be the basis of an Aff case; the jury is seen as an essential component in a democracy, as a way to ensure that the community is represented, and that the power of the State is kept in check.

Even if sentencing comes into the equation, jury trials are potentially less arbitrary than juvenile procedures, thanks to a unique feature of the system called a dispositional hearing. In Juvenile Justice: A Social, Historical, and Legal Perspective, Preston Elrod and R. Scott Ryder explain:

It is at the disposition hearing that formal plans designed to meet the various needs of the youth, the family, and the community are initiated. It is also at this hearing that the judge or other hearing officer attempts to balance the "best interests" of the youth and the need for community safety. Judges and other quasi-judicial hearing officers often have great latitude and discretion in making dispositional decisions (p. 271).

Furthermore, there's a gap between the guarantees of rights and their implementation in the juvenile justice system. The names you'll hear most often in support of this argument are Feld and Ainsworth.

Feld takes an empirical tack, arguing that the Supreme Court's decisions don't match the reality on the ground.

Ainsworth takes a more philosophical approach, not only discussing the structural deficiencies of juvenile courts, but calling for these courts' abolition, as they are based on outmoded, essentialist views of children. I'd recommend her work for advanced debaters.

differences in the treatment of adults and juveniles in the criminal justice system

The January / February 2011 resolution asks us to consider the merits of treating juveniles as adults in the U.S. criminal justice system. What are some of the salient differences in the way they're treated?

Procedural Differences
These are the inherent features of the system, and thus, potentially, the strongest ground on which to argue the resolution.
1. Detention in juvenile facilities while awaiting trial.
2. Media blackout. (Juvenile defendants' names are not generally made public.)
3. No jury trial.
4. Separated from adults when incarcerated.
5. Possibility of having criminal record expunged upon reaching the age of majority.
6. At present, defendants charged as juveniles cannot receive life without parole or the death penalty.

It is important to note that the Negative does not have to uphold the status quo. There may be other potential differences, from a Negative perspective, that are not currently features of the U.S. juvenile justice system, but should be. For instance, the Neg could argue that juveniles should not receive any due process rights, or that juveniles should be punished more harshly than adults, and still negate the resolution. (Such a "turn case" could be risky, but might catch some Affs napping.)


Empirical Differences
These are research-dependent, and thus contestable differences.

1. In interrogation, juveniles may be more likely to waive due process rights due to their relative ignorance of the proceedings, perhaps combined with manipulation or coercion by adult authorities (administrators, police, prosecutors).
2. In the current system, juveniles may have a greater likelihood of informal, ad hoc solutions. According to the Oxford Companion to American Law,

Following the arrest of a juvenile, law enforcement officers may either send the case to juvenile court or divert the case out of the system. Although most cases are routed into the courts, substantial numbers of youths are released following their arrest. For cases directed to the juvenile courts, an initial decision is made about whether to proceed to a formal hearing, dismiss the case, or handle the matter informally, perhaps through referral to a social service agency. A large number of cases are dealt with informally, often ending in dismissal or an agreement between the juvenile and the court. A formal procedure involves either a waiver hearing to determine whether the juvenile should be ordered to stand trial in adult criminal court or an adjudicatory hearing before the juvenile court judge.

3. Juvenile punishments are considered by many to be more lenient--or even too lenient.
4. Juveniles might not be able to handle incarceration with adults, for psychological or developmental reasons, perhaps making it a form of cruel and unusual punishment.
5. If incarcerated with adults, juveniles would likely face the prospect of abuse by other prisoners or guards.
6. If incarcerated with adults, juveniles might be more likely to be granted parole.
7. Perhaps most important from a utilitarian perspective, juveniles incarcerated with adults may have higher recidivism rates.

Regarding the empirical differences, I haven't found all the research out there to warrant these intuitions (although #7, I believe, is pretty easy to warrant). If you find any, feel free to post it. Of course, I'll have more specific, detailed information in the coming days and weeks.

sample resolutional analyses for the juvenile justice resolution

Below are some sample Resolutional Analyses and Observations written for the January / February juvenile justice resolution.

Each has its strategic advantages and counterarguments. I'll add any that I think of along the way. Feel free to suggest your own (or critique these) in the comments.

Added: Where useful, I've marked which ones match particular sides of the argument.

RA #1 (Aff)
Since acquitted juvenile defendants are no longer charged with violent felonies, and since we cannot presume the guilt of juveniles that are merely charged with violent felonies, the timeframe of the resolution extends only from charging to conviction. Potential punishment is excluded from the discussion.

RA #2
Since this is value debate, the Aff has no burden to implement a plan, and the Negative has no burden to uphold the status quo.

RA #3 (Aff)
Since the burden of the Aff is to prove the resolution true as a general principle, the Aff need not precisely delineate every single way that juveniles ought to be treated as adults in the criminal justice system.

RA #4 (Aff)
Since the burden of the Aff is to prove the resolution true as a general principle, the Aff need not argue that juveniles charged with violent felonies be treated as adults in every single case, or in every single way. Rather, the Aff must show that juveniles charged with violent felonies be treated as adults in the majority (or preponderance) of cases, and in the majority of ways.

RA #5 (Aff)
Since the resolution says "juveniles charged with violent felonies," and the prepositional phrase employs a plural noun, we concern ourselves only with juveniles charged with more than one violent felony.

RA #6
Since the resolution concerns the United States criminal justice system, and since the terms "juvenile" and "violent felony" are clearly defined in U.S. Code, and for the sake of clarity and fairness to both sides, we should use federal definitions of both terms (linked above).

Observation #1 (Aff)
It is important to remember that a juvenile charged with a violent felony has not been convicted of the crime.

Observation #2
Regardless of any other considerations, any arguments that do not meet Constitutional muster can be rejected out-of-hand.

Observation #3 (Aff)
Any bright-line distinction between juveniles and adults based solely on age is completely arbitrary.

Observation #4
The legal process is inherently political.

scattered thoughts on the juvenile justice resolution

Some scattered thoughts regarding the January / February 2011 LD resolution. Before proceeding, let's recall its exact words:

Resolved: In the United States, juveniles charged with violent felonies ought to be treated as adults in the criminal justice system.

• Juvenile detention is primarily based on rehabilitation; the state hopes that it's not too late for young criminals to turn it around, to become functional (or, at least, non-dysfunctional) members of society. Combine this with the prospect that justice as a deterrent may not work when juveniles can't consider the far-reaching implications of their actions, and you have two initial reasons to choose a retributive version of justice for the Affirmative.
• How are juveniles different from adults in legally or morally significant ways? Part of the distinction is sentimental: kids are kids. They're cute. They say and do funny things. They are innocent and naive. When a kid turns violent, our sentimental shock leads us in two opposite directions: either to minimize their individual responsibility (blame society, bad parenting, bad genes, insufficient brain development, etc.) or to declare them a moral monster (a "superpredator," a sociopath capable of inhuman evil). Is there a rational middle path?
• What does "treating like an adult" entail?
• And, a trickier question, what is its temporal extent--or, in other words, how long does it last? In this chain of events...

  Arrest - booking / charges - detention - setting bail - arraignment - preliminary hearing - pre-trial motions - trial - deliberation - verdict - allocution - sentencing - serving time - release from incarceration or punishment - reentering society.

  ... the resolution begins at the "charging" stage. But where does it end?
• One can argue that the resolution concerns only those charged with violent felonies--and thus it only concerns everything from the charging stage to the verdict. After all, at that point (or at any point until charges are dropped), juveniles that are innocent are cleared of the charges. This would define the Aff ground much more narrowly, making privacy the primary difference in treatment. The Aff would argue that juveniles would have to be named in public records (and, most likely, in the media), since it's in the public's interest to know the identity of a potentially dangerous person. The Neg, of course, would argue that such a public accounting might ruin a juvenile's reputation for life, even if they're found innocent at trial.
• If the resolution covers the entire process from charging through the rest of a juvenile's time in the justice system (whenever it ends), then punishment is part of the picture. In this case, is there a way for the Aff to at least minimize the likelihood that a 6-year-old is going to be thrown into The Hole in a maximum security prison?
• Yes.
• Since we're talking about the U.S. justice system, we have to include prosecutorial discretion and jury sympathy in the equation. It can be politically unfavorable for a prosecutor to aggressively go after juveniles; it can also be strategically difficult. In the face of arguments that juveniles have diminished responsibility, the Aff can turn the argument: that very fact keeps juries from viewing juvenile defendants as fully culpable, and so a jury that is faced with levying a maximum sentence on a 12-year old will act very cautiously.
• What about the death penalty, or life without parole?
• In the classic conception of crime, two elements are jointly necessary for someone to be culpable: the actus reus, or guilty action, and the mens rea, or guilty mind. A person who only thinks about murdering their enemy may have a guilty mind, but has not committed a guilty action, and is thus not culpable. Meanwhile, a demon-possessed madman who kills a random stranger may have committed a criminal action, but was unable to appreciate the distinction between right and wrong, and is thus not culpable. (Such a person may be incarcerated in a mental institution until the end of time, for others' safety, but that is the justifying reason, not their individual culpability.) We use similar logic to deny the death penalty to adults without the cognitive faculties to distinguish right and wrong.
• Why does mens rea matter? Because it seems tacitly unfair to punish someone for an accident, for circumstances beyond their control, for something they did not will of their own accord, or would have willed differently if they had been of sound mind.
• Are juveniles fully capable--or, at least, capable enough--of distinguishing right and wrong?
• If we were to punish actions regardless of will or mental state, what might happen?

definition of "violent felonies"

The January / February 2011 LD resolution asks us to consider treating as adults those juveniles who have been charged with "violent felonies."

In U.S. law, what constitutes a "violent felony?" We can look to federal statutes for the most widely applicable definition. According to Section 924(e)(2) of Title 18 of US Code (a section added under the Armed Career Criminal Act of 1984),

(B) the term "violent felony" means any crime punishable by imprisonment for a term exceeding one year, or any act of juvenile delinquency involving the use or carrying of a firearm, knife, or destructive device that would be punishable by imprisonment for such term if committed by an adult, that -
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another

Note the dual criteria for the phrase. First, the punishment must meet a precise minimum of severity, and second, that the crime itself involves force or the threat (or even "serious potential risk") of force or injury.

In U.S. sentencing guidelines, felonies range from Class E (1-5 year sentence) to Class A (life imprisonment or the death penalty). Examples of violent felonies include murder, kidnapping, arson, crimes against children, armed robbery, aggravated assault, rape, firearm use in certain cases, or firearm possession in certain cases.

Lastly, it's probably preferable to use define this legal term of art as a phrase, rather than by combining dictionary definitions, since it'll help clarify the debate and place it into a specific, research-ready legal context.

the risks of punishing juveniles as adults

If we treat juveniles charged with violent crimes the same way we treat adults, the argument will go, we will--must?--punish them the same way we punish adults.

Why might that be problematic? In his article "The Contradictions of Juvenile Crime and Punishment," found in the Summer 2010 edition of Daedalus, Jeffrey Fagan offers several reasons. First, from a rehabilitative standpoint, it backfires:

... even short-term exposure for youths to adult prisons has risks for youths and for public safety. To the extent that legislators ignored these risks, the wholesale transfer of minors to the criminal courts was a reckless experiment. A robust body of research shows that recidivism rates are in fact higher for youths sentenced as adults, after controlling for relevant offender and offense characteristics....

Why is this the case?

One explanation for the elevated recidivism rates may be the effects of adolescents' exposure to prison life and adult convicts. While likely to be separated physically from older inmates, the institutional climate on the youth side may hardly differ from other blocks in the prison: the separation may be one of degree rather than kind. Indeed, it may even worsen the chaos and violence of correctional confinement by concentrating youths who are at their peak ages of criminality and diminished self-control.

The experience is more psychically damaging to youths, as well:

Only a few studies have compared the correctional experiences of youths in prisons and juvenile incarceration, but all agree that placing youths in prisons comes at a cost: they are less likely to receive education and other essential services, they are more likely to be victims of physical violence, and they manifest a variety of psychological symptoms.

Of course, the affirmative rejoinder is that juveniles who have been charged with violent felonies are potentially beyond rehabilitating in first place--and that the reluctance of society to punish juveniles like adults might give juveniles an inflated sense of invincibility.

the most destructive drug

Mentioned in an article that may be of interest to students debating the current LD resolution, a new Lancet study has determined the overall most destructive drug.

Hint: most places, it's legal.

When drunk in excess, alcohol damages nearly all organ systems. It is also connected to higher death rates and is involved in a greater percentage of crime than most other drugs, including heroin.

But experts said it would be impractical and incorrect to outlaw alcohol.

"We cannot return to the days of prohibition," said Leslie King, an adviser to the European Monitoring Centre for Drugs and one of the study's authors. "Alcohol is too embedded in our culture and it won't go away."

King said countries should target problem drinkers, not the vast majority of people who indulge in a drink or two. He said governments should consider more education programs and raising the price of alcohol so it isn't as widely available.

Non-rhetorical question: Why not take the same approach to all drugs?


Added: Sullum (linked above) highlights and critiques the study.

from the retribution vault

The November/December resolution for 2010 invites us to contrast a public health approach to a criminal justice approach to illegal drug abuse. One of the most fruitful ways to address the conflict is through the lens of retributive justice.

I haven't sketched out an entire position for each side--I'm too busy helping my debate team figure out their cases--but I do have time to post some links to previous writing on the subject. Enjoy.

1. Gerard Bradley's take on punishment as a way of maintaining "equal legal liberty for all."

2. Sharon Dolovich's Rawlsian perspective arrives at a similar destination by a different route.

3. There's more than one kind of retributivism, mind you.

4. A while back I wrote a case about plea bargaining that employed several good retributive arguments.

5. On the other hand, how about a virtue ethics approach?

could public health officials quarantine drug abusers?

1. Let's say that a ranking public health official decides that abuse of illegal drugs is a literal epidemic.

2. How do you contain an epidemic? By quarantine, of course.

3. So the official decides to have drug abusers quarantined in rehab until clean, and, more important, no longer able to spread the mental and emotional virus of addiction.

4. Would that pass muster in a free society? If not, why not?

5. Would it fulfill the affirmative burden of the November-December 2010 LD resolution?

Added: Lest you think it's too far afield, consider the fact that anti-drug vaccines are within the realm of the plausible. So why not take it a step further?

coercion plus contamination equals confession

Ever since the landmark work of Elizabeth Loftus, psychologists have warned of the pernicious effects of implanted false memories. It turns out that a similar process--sometimes unconscious on the part of the perpetrator--can lead to false confessions.

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

Suspects, worn down through persistent interrogation interspersed with facts of the crime (the classic Law and Order-esque "gotcha," one imagines) or even taken to the crime scene, became adept at recounting the "details" of the crime.

Of course, there was perhaps a more important factor: none of the convicted innocents had a lawyer present during the interrogation.

And the truly frightening part:

Proving innocence after a confession, however, is rare. Eight of the defendants in Professor Garrett’s study had actually been cleared by DNA evidence before trial, but the courts convicted them anyway.

This is mind-boggling, given the justice system's overwhelming--and vastly overconfident--faith in DNA evidence to convict defendants, even though it's far more fallible than CSI would have you imagine.

How culpable are the police officers who elicit false confessions?

Jim Trainum, a former policeman who now advises police departments on training officers to avoid false confessions, explained that few of them intend to contaminate an interrogation or convict the innocent.

“You become so fixated on ‘This is the right person, this is the guilty person’ that you tend to ignore everything else,” he said. The problem with false confessions, he said, is “the wrong person is still out there, and he’s able to reoffend.”

Well... that's one of the problems. The other, perhaps worse, is that an innocent is convicted of a crime. "Better that ten of the guilty go free...."

Right?

half-formed thoughts on cyberbullying

A work in progress. Your comments and suggestions are appreciated.

Sticks and stones
May break my bones
But words will never hurt me.


I'm made of rubber,
You're made of glue.
Everything you say
Bounces off me
And sticks to you.

--children's sayings

Recently a reader sent this email:

I'm a long-time reader of your blog. I was hoping that you would blog about cyberbullying laws sometime since they have been a matter of controversy for a while now. Thanks!

I was somewhat stumped. As a teacher who uses the Internet all throughout the curriculum, and for someone who has established a persistent online presence for seven years, I'm ashamed to admit that my perspective on cyberbullying is, at best, half-formed and ad hoc.

Which it shouldn't be, as cyberbullying challenges traditional notions of education, juvenile law, and parenting.

My thoughts were expanded when another reader, Kevin, sent along one an otherwise unrelated email titled "German Civil Rights Fail." (Any insertions or edits are his.)

"Article Five: Freedom of Expression.

(1) Every person shall have the right freely to express and disseminate his opinions in speech, writing, and pictures and to inform himself without hindrance from generally accessible sources. Freedom of the press and freedom of repor...ting by means of broadcasts and films shall be guaranteed. **There shall be no censorship.** [Sweet! Censorship = un-Constitutional in Germany.]

(2) **These rights shall find their limits** [Wait a minute! You just promised us CONSTITUTIONALLY that censorship will not happen! What happened?] in the provisions of general laws, in provisions for the protection of young persons, and in the right to **personal honor** [What does this even mean?! It's a violation of civil rights to insult somebody?!]."

GERMAN CIVIL RIGHTS?

FAIL

At first I didn't notice the connection, but there it is: the language of the German constitution provides a perfect framework for understanding the current controversy over cyberbullying. After all, it is a form of speech that threatens the mental and emotional wellbeing of young persons, and is an affront to their personal honor.

But should it be a crime? And, if so, what about free speech?

In one sense, the German constitution is superior to its U.S. counterpart; at least it explicitly notes the limitations on free speech, while in the U.S., we have to rely solely on decades of muddled juriprudence to determine where the boundaries of infringement lie. (Eugene Volokh, discussing a related issue, notes that even the word "infringement" isn't simple.  See also his critique of a new cyberbullying statute.  Legislators definitely run the risk of too broadly defining what constitutes cyberbullying.)

Here in the U.S., as the children's sayings imply, we certainly value personal honor and the sensibilities of the young. We don't want a nation of wimps.  A societally coordinated and aggressive approach to bullying, though, is a fairly recent invention. We leave personal honor to the person, creating a razor-thin line between encouraging mental toughness and blaming the victim--because sometimes words will hurt, and arguing otherwise is a form of denial. (If you disagree, imagine what a bully thinks when told that "words will never hurt.")

Throw this kind of thinking into a culture saturated with technology, which creates new dimensions for bullies.  What happens?

• There are new means of public or private aggression.  Blogs. Forums.  YouTube videos. Text messages.
• There seem to be no natural "times out," given the ubiquity of technology.
• The audience is potentially global, multiplying any humiliations--especially when older folks get in on the act. (Children aren't the only ones who cyberbully, as the Jessi Slaughter incident makes obvious. And if you look up Slaughter's experience, be warned: it's disturbing on multiple levels.)
• Anonymity and the removal from a personal context increase aggression.
• Thanks to Google, cyberbullying's evidence can last a lifetime.  How do you heal when the sting never stops?

Humans live out narratives, selves couched in stories and words.  As we migrate further into the digital hemisphere, words take on more and more importance. Maybe the Germans are on to something.

For further reading: Emily Bazelon's excellent series on the subject over at Slate.

stolen words, stolen deeds, stolen accolades

A fabulizing triptych.

Gerald Posner, compulsive plagiarist.

Posner has offered a variety of defenses. He apologized after Shafer's stories and blamed the "warp speed of the Net" for screwing up his Beast stories. He told us this past May 16 that a new system of "trailing endnotes" may have caused problems in Babylon. By our third story, Posner said there was a "concerted effort" afoot to "discredit" his work.

Now comes new evidence, again courtesy of Gelembiuk. The 48-year-old Wisconsin student purchased ebook copies of Why America Slept and Secrets of the Kingdom, and ran them through Viper, a free online plagiarism software.

The program found Posner had taken from 24 sources in the two books. Most egregious seems to be his theft from a 1998 book by David Hoffman called The Oklahoma City Bombing and the Politics of Terror. Posner appears to have lifted three passages from the book totaling 927 words in Why America Slept.

Richard Blumenthal, hypocritical pseudo-Vietnam vet.

Richard Blumenthal, the attorney general of Connecticut, has a problem. He's running for the U.S. Senate, and he's been caught on video implying falsely that he served in Vietnam. He'd like your understanding as he explains that he simply "misspoke" about his service. He'd like you to give him a break.

But Blumenthal has never given anyone a break. He has made a career out of holding others to the strictest standards of truth—and mercilessly prosecuting them when they fall short.

Adam Wheeler, faux super-student?

Prosecutors said that Wheeler defrauded Harvard out of over $45,000 in the form of an $8,000 research grant, $6,000 in English prizes, and $31,806 in financial aid.

"Mr. Wheeler pled not guilty. He'll have his day in court," said Steven Sussman, the defendant's lawyer, who was surrounded by a thick crowd of reporters and cameramen. "He's not convicted of anything."

everyone's a suspect

Should law enforcement be allowed to expand DNA databases to include non-felons? One of the central questions of the latest NFL resolution is answered with a resounding "no" by Tania Simoncelli of the ACLU, in "Dangerous Excursions: The Case Against Expanding Forensic DNA Databases to Innocent Persons," found in The Journal of Law, Medicine & Ethics, Summer 2006.

Simoncelli argues that first, preserving non-felons' DNA "turns the presumption of innocence on its head," turning anyone in the database into a suspect. Even convicted felons aren't automatically guilty of future crimes. This is anti-democratic in nature, and dangerous in practice.

Second, at least in the American system, institutional safeguards enshrined in the Fourth Amendment would be threatened by DNA databases.

Regardless of whether a DNA bank should be considered beyond the general needs of law enforcement, the proposition that the government's "special needs" outweigh the privacy interests of innocent persons seems beyond the pale, as a matter of Constitutional principle. While it is plausible that the courts could uphold the forcible taking and analysis of DNA of persons arrested on the basis of some diminished expectation of privacy while in confinement, the permanent retention of that DNA cannot be justified on this basis unless a suspect is convicted of a crime.

Beyond 4th Amendment considerations, DNA databases create unique privacy concerns.

Unlike fingerprints - two-dimensional representations of the physical attributes of our fingertips that can only be used for identification - DNA samples can provide insights into personal family relationships, disease predisposition, physical attributes, and ancestry. Such information could be used in sinister ways and may include things the person herself does not wish to know.

Abuse of such a system is highly likely.

[S]pecific cases of abuse of police databases indicate that penalties alone do not sufficiently deter misuse. In 2001, it was revealed that more than ninety known cases of abuse of Michigan's Law Enforcement Information Network had occurred over five years. Abuses included police officers and other law enforcement personnel tapping into the network to obtain home addresses or other background information on love interests and seeking revenge or an upper hand in personal, legal or political conflicts. And while Michigan law clearly indicates that such an abuse qualifies as a misdemeanor, punishable by up to ninety days in jail and a $500 fine upon conviction, only three of the officers were prosecuted for these crimes.

Simoncelli details many practical concerns that are of secondary concern here, given that their impact is utilitarian rather than a matter of violated rights. They include the diminishing returns of an expanded dataset, the possibility of false convictions via planted DNA evidence (the paradoxical result of heightened trust in such evidence), overworked crime labs, untold costs (somewhat mitigated by falling prices), and the necessity of a total-population database to ward off concerns about "racial distortions in our criminal justice system."

In all, the article is well worth reading as a primer on some of the primary arguments in the debate.

Resolved: Compulsory inclusion of non-felons' DNA in any government database is unjust.

The NFL national tournament Lincoln-Douglas debate topic for 2010 has been released:

Resolved: Compulsory inclusion of non-felons' DNA in any government database is unjust.

A couple obvious themes present themselves immediately. Compulsory inclusion might be unjust for violating the right to privacy; DNA contains information about genetic conditions that are immensely personal. Along similar lines, such information is potentially useful for discrimination (a present-day possibility) or identity theft (imagine a future with biometric, DNA-based national IDs), or might lead to "false positives" due to an overly optimistic reliance (a "CSI effect" of sorts) on DNA evidence, which, although a gold standard of positive identification, isn't perfect. Then there's the tyranny consideration, another step toward the slippery slope to an Orwellian nightmare.

On the other hand, the State's security concerns and desire to avoid falsely identifying non-felons might be abetted by a database that clearly distinguishes felon from non. Furthermore, a DNA database could speed up the search to identify criminals--after all, every felon was once a non-felon.

These are just a few initial, scattered thoughts on the subject. As always, more analysis, links and evidence are on the way, and your comments and questions help fuel the discussion.

Added: The inimitable Radley Balko responds to a call for a national database.

Criminal justice interests aren't the only ones worth considering. In Texas, academic researchers collected mitochondrial DNA samples in a secret database. It's important to note that mitochondrial DNA can't be traced to individuals, but one could easily imagine a public health initiative to gather nuclear DNA.

Added 5/2 The ACLU's Tania Simoncelli offers some arguments in favor of the resolution.

Added 6/7: And there's always the possibility of embarrassing errors.

why do we still have a War on Drugs?

Jason Kuznicki on the War on Drugs:

Considered as a whole, the War on Drugs is the single worst violation of liberty perpetrated by our government. Nothing else even comes close.

The War on Drugs imprisons hundreds of thousands for no greater crime than owning a chemical or an herb. It breaks up families. It ends educations. It ends careers. It poisons. It incites murder. It makes citizens mistrust one another and mistrust the police. It robs us all of our dignity, even if we don’t use drugs. It turns the Fourth Amendment into nothing more than a pious fiction....

The most depressing part is that nothing in the above is even remotely news. It was true last April 20, and it will in all likelihood remain true next April 20. These are overwhelmingly self-inflicted wounds. Why, Americans, do we do this to ourselves? And why does pointing it out have so little effect?

Because of inertia. Because of dirty hippies. Because of heavily invested Drug Warriors. Because of special interests and government conspiracies. Because of Doritos. Because of rampant hypocrisy. Because of ignorance, willful or otherwise. Because of misplaced moral concern. Because of... because.

After all, being unreasonable is just that.

LD mailbag: resources, plus jury nullification!

Regarding LD in general, and the jury nullification resolution in particular, a reader writes,

Mr. Anderson,

Hey there! I had a great teacher that ultimately helped me win last year, and I thought I might pass on some ideas and resources that otherwise could be helpful.

As for evidence, I highly recommend looking up the WNDI Debate Camp Files. A Google search of that name will bring up a site that includes a comprehensive brief that is completely free.

Although many won't try to delve into philosophy, the most useful book in my debate career has been Dr. S. E. Frost Jr.'s book The Basic Teachings of the Great Philosophers. The citations are quick and easy explanations over the tough concepts, great for explaining philosophy in a case or rebuttal.

Now for the topic...

The affirmative is quite easy to run on this topic, and I think you have it pretty well covered on the site.

The negative is a harder position to run for sure, but can be really persuasive if the resolution is used to its fullest. A proper definition of democracy is the fulcrum of the position I use, as it preempts the ultimate "Jim Crow" or "Fugitive Slave Act" arguments one is destined to hit. My using the 'principle' part of the resolution, one can say that many of these laws were not in line with the principles of the Constitution, and despite having happened historically, are not applicable under the resolution. Even one can go on to say that because many demographic groups were denied participation in the political system, those laws are also inapplicable, especially in a modern sense.

The negative arguments certainly have to revolve around objectivity, and principles such as equality, order, and democracy. The arguments concerning racism, bigotry, etc., can prove to be fundamentally subversive to a democratic system that appreciates political differentiation. Undermining laws at will can be anarchic. Injecting subjective views of the jurors into the objective system of law (that is legitimized by the very people themselves) is more often to be used for ill than for good in a system that represents the principles it was founded upon.

Just a few thoughts, hopefully they helped. If not, thanks for your time!

And thanks for your thoughts.