(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]

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.

no mercy on an empty stomach

Is a hungry judge a merciless judge?

Jonathan Levav of Columbia Business School in New York and his colleagues analyzed 1,112 parole hearings for inmates of four Israeli prisons, made by eight judges over a ten-month period.

Judges' days were divided into three sessions broken by two meal breaks -- a morning snack and lunch. Judges decided when to break, but had no control over the ordering of cases, which was determined by when a prisoner's attorney arrived.

At the beginning of a session, a prisoner had a 65% chance of being paroled, the authors found. This declined to almost zero by the end of a session, and leaped back to 65% after a break.

The severity of the crime, the time served in prison, any previous incarcerations, and the availability of rehabilitation programs were not enough to explain the effect on the probability of parole, and the nationality or sex of a prisoner made no difference. The findings are published this week in the Proceedings of the National Academy of Sciences.

The article, as all scientific articles do, includes the appropriate dose of skepticism. And it's obviously wrong to presume that the judges are too harsh when they're hungry; after all, they might be too lenient when full.

Still, it makes one wonder what would happen if courts instituted mandatory snack breaks.

"I (heart) boobies:" will SCOTUS take the case?

Is it sad or awesome that it took a federal ruling to uphold a high school student's right to wear an awareness-generating bracelet that uses the word "boobies?"

Breast cancer fundraising bracelets that proclaim "I (heart) boobies!" are not lewd or vulgar and can't be banned by public school officials who find them offensive, a federal judge in Pennsylvania said Tuesday in a preliminary ruling.

The ruling is a victory for two Easton girls suspended for defying a ban on their middle school's Breast Cancer Awareness Day.

"The bracelets ... can reasonably be viewed as speech designed to raise awareness of breast cancer and to reduce stigma associated with openly discussing breast health," U.S. Judge Mary McLaughlin wrote in a 40-page ruling issued Tuesday. She added that the school district had not shown the bracelets would be disruptive in school.

Since it's just an appellate decision, and students' free speech rights have been curtailed in other jurisdictions, one wonders how long it takes "I heart boobies" to become the "Bong hits 4 Jesus" of the 2010s.

Take the case, SCOTUS. This time, though, get the right result.


Update: The district that lost will appeal, making SCOTUS involvement a live, if distant, possibility.

a real American at 95

Wonder if I could ever find myself in this situation:

For all his life, 95-year-old Leland Davidson had been what you might call an undocumented American.

Until now.

Born in Canada to American parents who moved him to the United States when he was 5, Davidson grew up and lived his life like any other American. He started voting as soon as he could, obtained a Social Security number when he was 21 and served in the U.S. Navy during World War II.

Yet his U.S. citizenship, automatically derived from his parents, came into question last summer — as it has been for a growing number of Canadian-born Americans — when he was planning a trip to British Columbia and applied for an enhanced Washington driver's license.

The licenses are for U.S. citizens only — allowing re-entry into the United States from Canada. Davidson was shocked when Department of Licensing staff told him: "You're still a Canadian."

After months untangling his status, the Centralia man Tuesday received a long-overdue recognition of his U.S. citizenship, when he and 51 others — most of them children — were granted certificates of citizenship.

Born in Canada, of an American father and a Canadian mother, I'm an American citizen. I have a "Certificate of Birth Abroad" and a current passport, but if I were to, say, vacation in British Columbia and lose my passport--stranger things have happened--how would I prove that my citizenship is legit? (It doesn't help that "Jim Anderson" is a terribly common name.)

Oh, I remember: just sing all the words to The National Anthem.

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.

Resolved:The United States is justified in using private military firms abroad to pursue its military objectives.

The NFL LD topic for March / April 2011 has been released:

Resolved:The United States is justified in using private military firms abroad to pursue its military objectives.

The United States increasingly depends on private military firms to support its fighting forces around the world. However, that supporting role has become more of a solo act, as firms like Xe (formerly Blackwater) have moved beyond security details or logistics, into combat operations in everything but name--and with problematic results.

This raises several questions. Are private military firms effective, or even necessary? Are they legitimate--whether under U.S.law or under international law? Will their reach and influence continue to expand in a perpetual War on Terror, and, if so, what will be the costs? To whom are private military firms accountable? To whom are they loyal--especially when many of their employees or shareholders aren't U.S. citizens? Is this the "military industrial complex" Eisenhower warned about? Are we seeing the rise of shadowy corporate governance? Is "private security contractor" a mere euphemism for "mercenary?"

Expect security, justice, peace, international law, the social contract, Just War Theory, and corporatism to crop up in discussions. Also, expect huge criterial clash: the word "justified" isn't synonymous with "just."

Analysis and links, as always, are forthcoming--and, as always, your comments and questions are critical.

Added 2/2: A look at some definitions.

Added 2/3: Some initial Aff arguments mostly based on effectiveness considerations.

Added 2/13: More arguments and analysis for the Affirmative, based on military necessity.

Added 2/24: A formative list of value and criterion pairs.

Added 3/7: How postmodern developments change the nature of war.

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.

emotion, reason, and the law

David Arkush, in "Situating Emotion: A Critical Realist View of Emotion and Nonconscious Cognitive Processes for Law and Legal Theory," explodes the dichotomy between rationality and emotion in legal decision-making. The implications:

This Article has attempted to say much, but it can be reduced to a single point--law and legal theory treat emotion primarily as an object of reasoned decisions and policy making and as a source of interference in decisions, but empirical evidence suggests that emotion is a behavioral process that is critical to decisions. This shift in viewpoint has widespread implications for law, legal theory, and policy. As a descriptive matter, it suggests that we should reevaluate legal doctrines that rely on the assumption that humans are mostly emotionless actors and reexamine areas of law that concern consent, states of mind, and the causes of behavior. As a normative matter, emotional realism suggests that we have no empirical or even internally consistent definition of welfare on which to base policy. Welfarists should seek a new definition, and they are more likely to find it in processes than in objects. There is much work to be done.

Use this as a launching pad toward...
* Blocks against consequentialism / utilitarianism (which are welfarist, and, as Arkush argues, empirically and internally slippery)
* A way to defend treating juveniles and adults equally--it could be fallacious to presume that juveniles are "more emotional" when making decisions
* A kritik of the legal system

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.

civil commitment and the illegal drugs resolution

Is it possible for a public health approach to the abuse of illegal drugs to be coercive? In a previous post, citing quarantine as an analogue, I argued that it is. Thanks to a conversation with Mr. Cushman, an attorney friend, I'll explore a second potential analogue for a non-criminal yet coercive public health approach: civil commitment.

Civil commitment is

... process in which a judge decides whether a person who is alleged to be mentally ill should be required to go to a psychiatric hospital or accept other mental health treatment.... A civil commitment is not a criminal conviction and will not go on a criminal record.

On what grounds can someone be civilly committed?

A person can be committed if after hearing from witnesses a judge finds by clear and convincing evidence that the person has a mental disorder and, because of that mental disorder, is:

• Dangerous to self or others, or
• Unable to provide for basic personal needs like health and safety.

Why shouldn't similar criteria justify civil commitment for drug abusers, under the supervision of medical personnel?

And, on the other side, what's the difference between this and a criminal penalty, other than the lack of a criminal record? Is it a distinction without a difference? (And does that point flow Negative?)

It's important to point out that civil commitment is a procedure that exists in free societies, although not without controversy, especially since it clearly violates Mill's harm principle.

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?

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?

Google in the courtroom

Eugene Volokh points to a law.com article about one judge's attempt to keep Google out of the courtroom:

Now that New Jersey courtrooms have Wi-Fi capability, trial lawyers with wireless laptops have a distinct edge: the ability to Google prospective jurors at the counsel table.

And an appeals court has given its blessing to the practice, reversing a trial judge who told a lawyer to disconnect lest he gain an unfair advantage.

"That [plaintiff's counsel] had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of 'fairness' or maintaining 'a level playing field,'" the court said on Aug. 30 in Carino v. Muenzen, M.D., A-5491-08.

"The playing field was, in fact, already 'level' because Internet access was open to both counsel, even if only one of them chose to utilize it."

It was only a matter of time--and as the future lawyers and judges of America (i.e., high school debaters) become increasingly used to (and dependent on) having laptops in their debate rounds, we can expect that trend will only continue.

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.

Luke... I might not actually be your father.

Oops:

Imagine receiving the results of a genetic test that suggests that your son is not your son. Was there a mix-up in the maternity ward?

Fortunately, in this case it was a slip-up in the genetics lab contracted by personal genomics company 23andMe to process its customers' samples. But the news that the Californian firm has supplied 96 people with someone else's results will add to the pressure for more regulation of this emerging industry.

When privacy advocates argue that non-felons' DNA should be kept out of government databases, this is one of the crucial reasons why. You can't simply regulate away errors, human or silicon.