Legal theory must incorporate discoveries from biology and behavioral sciences

Some recent discoveries in evolutionary biology, ethology, neurology, cognitive psychology and behavioral economics impels us to rethink the very foundations of law if we want to answer many questions remain unanswered in legal theory. Where does our ability to interpret rules and think in terms of fairness in relation to others come from? Does the ability to reason about norms derive from certain aspects of our innate rationality and from mechanisms that were sculptured in our moral psychology by evolutionary processes?

Legal theory must take the complexity of the human mind into account

Any answer to these foundational issues demands us to take into consideration what these other sciences are discovering about how we behave. For instance, ethology has shown that many moral behaviors we usually think that are uniquely displayed by our species have been identified in other species as well.

Please watch this video, a lecture by primatologist Frans de Waal for the TED Talks :

The skills needed to feel empathy, to engage in mutual cooperation, to react to certain injustices, to form coalitions, to share, to punish those who refuse to comply with expected behaviors, among many others – abilities once considered to be exclusive of humans – have been observed in other animals. These traits have been observed in many animal species, especially those closer to our evolutionary lineage, as the great apes. In the human case, these instinctive elements are also present. Even small children around the age of one year old show great capacity for moral cognition. They know to identify patterns of relationships in distributive justice, even if they cannot explain why they came to a certain conclusion (because they even do not know how to speak by that age!).

In addition, several studies have shown that certain neural connections in our brains are actively involved in processing information related to capabilities typical of normative behavior. Think about the ability to empathize, for example. It is an essential skill that prevents us to see other people as things or means. Empathy is needed to respect the Kantian categorical imperative to treat the others as an end in themselves, and not means to achieve other ends. This is something many psychopaths can’t do, because they face severe reduction in their ability to empathize with others. Several researches using fMRI have shown year after year that many diagnosed psychopaths show deficiencies in areas of their brains that have been associated to empathy.

If this sounds like science fiction, please consider the following cases.

A 40 year old man, who had hitherto displayed absolutely normal sexual behavior, was kicked out by his wife after she discovered what he was visiting child porn sites and had even tried to sexually molest children. He was arrested and the judge determined that he would have to pass through a sexaholics rehabilitation program or face jail. But he soon got expelled from the program after inviting women at the program to have sex with him. Just before being arrested again for failing in the program, he felt a severe headache and went to a hospital, where he was submitted to an MRI exam. The doctors identified a tumor on his orbifrontal cortex, a brain region usually associated with training of moral judgment, impulse control and regulation of social behavior. After the removal of the tumor, his behavior returned to normal. Seven months later, he once more showed deviant behavior – and further tests showed the reappearance of the tumor. After the removal of the new cyst, his sexual behavior again returned to normal standards.

You could also consider the case of Charles Whitman. Until he was 24, he had been a reasonably normal person. However, on August 1st, 1966, he ascended to the top of the Tower of the University of Texas, where, armed to the teeth, he killed 13 people and wounded 32 before being killed by the police. Later it was discovered that just before the mass killings, he had also murdered both his wife and mother. During the previous day, he left a typewritten letter in which one could read the following:

“I do not quite understand what it is that compels me to type this letter. Perhaps it is to leave some vague reason for the actions I have recently performed. I do not really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I cannot recall when it started) I have been a victim of many unusual and irrational thoughts.”

In the letter, he also requested to be submitted to an autopsy after his death in order to verify if it there was something wrong with his brain.  Whitman’s brain was examined and … surprise! … the doctors found a glioblastoma tumor compressing the region of his amygdala, which is associated with the regulation of aggression and fear.

What does this mean for legal theory? At least this means that law, so far, has been based on a false metaphysical conception that t brain is a lockean blank slate and that our actions derive from our rational dispositions. Criminal law theory assumes that an offender breaks the law exclusively due to his free will and reasoning. Private law assumes that people sign contracts only after considering all its possible legal effects and are fully conscious about the reasons that motivated them to do so. Constitutional theory assumes that everyone is endowed with a rational disposition that enables the free exercise of civil and constitutional rights such as freedom of expression or freedom of religion. It is not in question that we are able to exercise such rights. But these examples show  that the capacity to interpret norms and to act accordingly to the law does not derive from a blank slate endowed with free will and rationality, but from a complex mind that evolved in our hominin lineage and that relies on brain structures that enables us to reason and choose among alternatives.

This means that our rationality is not perfect. It is not only affected by tumors, but also by various cognitive biases that affect the rationality of our decisions. Since the 1970s, psychologists have studied these biases. Daniel Kahneman, for example, won the 2002 Nobel prize in Economic Sciences for his research on the impact of these biases on decision-making. We can make really irrational decisions because our mind is based on certain heuristics (fast-and-frugal rules) to evaluate certain situations. In most situations, these heuristics help us to make the right decisions, but they also may influence us to make really dumb mistakes.

There are dozens of heuristics that structure our rationality. We are terrible on assessing the significance of statistical correlations, we discard unfavorable evidence, we tend to follow the most common behavior in our group (herd effect), and we tend to see past events as if they had been easily predictable. We are inclined to cooperate with whom is part of our group (parochialist bias), but not so with whom belongs to another group. And those are just some of the biases that have been already identified.

It is really hard to overcome these biases, because they are much of what we call rationality. These flaws are an unavoidable part of our rationality. Sure, with some effort, we can avoid many mistakes by using some techniques that could lead us to get unbiased and correct answers. However, using artificial techniques to do so may be expensive and demands lots of effort. We can use a computer and train mathematical skills in order to overcome biases that causes error in statistical evaluation, for instance. But how can we use a computer to reason about morality or legal issues “getting around” these psychological biases? Probably, we can’t.

The best we can do is to reconsider the psychological assumptions of legal theory, by taking into account what we actually know about our psychology and how it affects our judgement. And there is evidence that these biases really influence how judges evaluate judicial cases. For instance, a research done by Birte Englich, Thomas Mussweiler and Fritz Strack concluded that even legal experts are indeed affected by cognitive biases. More specifically, they studied the effects of anchoring bias in judicial activity, by submitting 52 legal experts to the following experiment: they required them to examine an hypothetical court case, which should determine the sentence in a fictitious shoplifting case. After reading the materials, the participants had to answer a questionnaire at the end of which they would define the sentence.

Before answering the questions, however, the participants should throw a pair of dice in order to determine the prosecutor’s demand. Half of the dice were loaded in order to show always the numbers 1 and 2. And the other half was loaded in order to indicate 3 and 6. The sum of the numbers should indicate the prosecutor’s sentencing demand. Afterwards, they should answer questions about legal issues concerning the case, including the sentencing decision. The researchers found that the results of the dice had an actual impact on their proposed sentence: the average penalty imposed by judges who had dice with superior results (3 + 6 = 9) was 7.81 months in prison, while the participants whose dice resulted in lower values ​​(1 +2 = 3) , proposed an average punishment of 5.28 months .

In another study, it was found that, on average, tired and hungry judges end up taking the easy decision to deny parole rather than to grant it. In the study, conducted in Israel, researchers divided the day’s schedule of judges into three sessions. At the beginning of which of them, the participants could rest and eat. It turned out that, soon after eating and resting, judges authorized the parole in 65% of cases. At the end of each session, the rate fell to almost zero. Okay, this is not really a cognitive bias, but a factual condition – however, it shows that a tired mind and energy needs can induce decisions that almost everyone would consider as intrinsically unfair.

And so on. Study after study , research shows that (1) our ability to develop moral reasoning is innate, (2) our mind is filled with innate biases that are needed to process cultural information in relation to compliance with moral/legal norms, and (3) these biases affect our rationality.

These researches raise many questions that will have to be faced sooner or later by legal scholars. Would anyone say that due process of law is respected when judges anchors judicial decision in completely external factors – factors about which they aren’t even aware of! Of course, this experiment was done in a controlled experiment and nobody expects that a judge rolls dice before judging a case. But judge might be influenced by other anchors as well, such as numbers inside a clock, a date on the calendar, or a number printed on a dollar banknote? Or would anyone consider due process was respected even if a parole hadn’t been granted because the case was judged late in the morning? These external elements decisively influenced the judicial outcome, but none of them were mentioned in the decision.

Legal theory needs to incorporate this knowledge on its structure. We need to build institutions capable to take biases into account and, as far as possible, try to circumvent them or, at least, diminish their influence. For instance, by knowing that judges tend to get impatient and harsher against defendants when they are hungry and tired, a Court could force him to take a 30 minute break after 3 hours of work in order to restore their capacity to be as impartial as possible. This is just a small suggestion about how institutions could respond to these discoveries.

Of course, there are  more complex cases, such as the discussion about criminals who always had displayed good behavior, but who were misfortunate to develop a brain tumor that influenced the commitment of a crime. Criminal theory is based on the thesis that the agent must intentionally engage in criminal conduct. But is it is possible to talk about intention when a tumor was one direct cause of the result? And if it hadn’t been a tumor, but a brain malformation (as it occurs in many cases of psychopathy)? Saying that criminal law could already solve these cases by considering that the criminal had no responsibility due to his condition wouldn’t solve the problem, because the issue is in the very concept of intention that is assumed in legal theory.

And this problem expands into the rest of the legal theory. We must take into account the role of cognitive biases in consumer relations. The law has not realized the role of these biases in decision making, but many companies are aware of them. How many times haven’t you bought a 750 ml soda for $2.00 just because it cost $0.20 more than a 500 ml one? Possibly, you thought that you payed less per ml than you would pay if you had bought the smaller size. But … you really wanted was 500 ml, and would pay less than you payed for taking extra soda that you didn’t want! In other words, the company just explores a particular bias that affects most people, in order to induce them to buy more of its products. Another example: for evolutionary reasons, humans are prone to consume fatty foods and lots of sugar. Companies exploit this fact to their advantage, which ends up generating part of the obesity crisis that we see in the world today. In their defense, companies say that consumers purchased the product on their own. What they do not say, but neurosciences and evolutionary theory say, is that our “free will” has a long evolutionary history that propels us to consume exactly these kinds of food that, over the years, affects our health. And law needs to take these facts into consideration if it wants to adequately protect and enforce consumer rights.

Law is still based on an “agency model” very similar to game theory’s assumption of rationality. But we are not rational. Every decision we make is influenced by the way our mind operates. Can we really think that it is fair to blame someone who committed a crime on the basis of erroneous results generated by a cognitive bias? And, on the other hand, would it be right to exonerate a defendant based on those assumptions? To answer these and other fringes questions, legal scholars must rethink the concept of person assumed by law, taking into account our intrinsic biological nature.

Related Situationist posts:

• About Situationism
• A Situationist Critique of Legal Theory – Abstract
• Hanson’s Chair Lecture on Situationism
• Jon Hanson on Law and Mind Sciences
• David Eagleman on the Brain and the Law
• Brain and Blame
• Allegations of Ideological Bias are Anti-Scientific
• Interview with Professor Joshua Greene
• Daniel Dennett on the Situation of our Brain
• Thinking the Situation into Legal Theory: The Promise of Experimental Parable

Image from Flickr

The Implicit Situation of Criminal Justice

Robert Smith, Charles Ogletree, and Johanna Wald hare recently posted a synopsis of their chapter, titled “Coloring Punishment: Implicit Social Cognition and Criminal Justice” (in Justin D. Levinson and Robert J. Smith (eds), Implicit Racial Bias Across the Law, 2012) on SSRN.  Here’s the synopsis:

The United States has become the world’s leader in incarceration. The size and pervasiveness of the criminal justice regime have no parallel in history. One in 100 citizens are locked away in prisons and jails – a figure that reflects a tenfold expansion in the corrections population in less than four decades. If we count those individuals who are currently on probation or parole, more than 7 million men and women are under legal supervision – a number equal to the population of Israel. This system of mass incarceration – which includes policing, corrections, and the courts – employs 2.2 million Americans – which exceeds the 1.7 million Americans employed in higher education and the 650,000 employed by the system of public welfare. At the turn of the millennium, approximately 1.5 million children had at least one parent in jail or prison, and 10 million have had a parent in jail at some time during their lives.

Racial disparities are a defining feature of this regime. One in eight black males between the ages of 20–29 are in prison or jail on any given day, as compared with 1 in 59 white males of the same age. At the beginning of the new millennium black males had almost a 1 in 3 chance of serving time in prison, as compared with 3 in 50 for white males. The Leadership Conference on Civil Rights has suggested that current criminal justice policies and practices “threaten to render irrelevant fifty years of hard-fought civil rights progress.”

There are varied explanations for these disparities. Most analyses point to a constellation of complex and interrelated structural and institutional factors that include poverty, high rates of joblessness, low levels of education, and the clustering of blacks and Latinos in concentrated urban areas that are more heavily policed than predominantly white suburban and rural areas. In this chapter, we put forth a complementary analysis, one intended to fill in gaps that we consider to be missing from these structural analyses. The ongoing racial disparities evidenced in every phase of the criminal justice system can be at least partly explained by the levels of implicit racial bias held by key actors in the system. Although we cannot yet offer “the smoking gun” that indisputably links the presence of implicit bias among decision-makers to harsher criminal sanctions for black Americans, our hypothesis is backed by a robust and fast-growing literature that has developed over the past decade. This scholarship demonstrates conclusively that Americans (whites and people of color alike) possess negative implicit biases against black citizens. These implicit race biases are held by liberals and conservatives; by young people and old; and by residents on the East Coast, the West Coast, the South, and the Midwest. They often coexist, unknowingly by the holder, alongside more overtly egalitarian views. What makes them so important in any discussion about race and the law is that these implicit biases frequently determine our actions and sway our decisions. In the criminal justice context, these biases lead, for example, to more arrests and harsher sentences for blacks than for whites who commit similar offenses.

It is vital to understand and document more fully how and where implicit biases operate within the criminal justice system. Doing so will enable us to develop policies, practices, and strategies aimed at identifying and reducing their effects. In this chapter, we offer specific illustrations of how implicit racial bias influences the actions of key decision-makers at various phases of our criminal justice system. This chapter is not intended to be a comprehensive examination of the role of implicit bias within the criminal justice system; rather its objective is to match the literature on implicit bias with actual examples of its “real-world” effects. From the formulation of criminal justice policy, to the decision to target citizens of a particular race, to the selection of criminal petit juries, the impact of implicit race bias on decisions about arrests, sentences, and severity of punishment is broad and deep.

This chapter proceeds in five parts. Part I sets the stage for this analysis, introducing key implicit racial bias studies that demonstrate that the face of crime in America is black. More specifically, it documents that black citizens are considered to be more dangerous, hostile, and prone to criminality and also less fully human than white citizens. Building on this foundation, Part II examines the role that implicit racial bias plays in the formulation of crime policy. Part III examines why implicit racial bias might drive disparate outcomes in the enforcement of criminal laws. This part examines the phenomenon in two distinct contexts: (1) the decision to punish a student in the school discipline context and (2) the use of unnecessary force in police–citizen encounters. Part IV uses the example of discriminatory jury selection to explore how implicit racial bias might contribute to the exclusion of black citizens from the criminal justice decision-making process. Part V concludes the chapter.

Related Situationist posts:

• Implicit Bias in the Law Conference – This Thursday
• Implicit Bias in the Courtroom
• Implicit Bias Symposium (with links to videos)
• Nancy Gertner on The Situation of Dispositionist Criminal Sentencing
• Why Race May Influence Us Even When We “Know” It Doesn’t
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• The Racial Situation of Criminal Juries and the Consequences
• The Situation of Capital Punishment – Abstract
• The Situation of Death Row
• Why We Punish
• Black History is Now
• Jena 6 – Part II – Part I
• The Criminals that Other Criminals Punish
• Intuitions of Punishment?
• The Situation of Perceived Intentionality
• The Blame Frame – Abstract
• Black History is Now
• Guilt and Racial Prejudice
• The Situation of Blaming Rihanna
• The Situation of Punishment (and Forgiveness)
• The Situation of Punishment
  

Self-Control and Crime

Rebecca E. Hollander-Blumoff has recently posted her excellent paper, “Crime, Punishment, and the Psychology of Self-Control” (Emory Law Journal, Vol. 61, No. 501, 2012) on SSRN.  Here’s the abstract:

Criminal law rests on the assumption that individuals — most of the time — have free will. They act in ways that they choose to act, exercising control over their own behavior. Despite this central role of free will and self-control in the conceptualization of criminal responsibility, criminal law scholars have not, to date, considered the implications of decades of research in social psychology on the mechanisms of self-control. This article suggests that examining current social psychology research on self-control offers a novel way to amplify our thinking about crime and punishment, helping to make sense of the way that the law has developed, casting doubt on the descriptive validity of legal perspectives on self-control and crime, and offering potential guidance as we think about appropriate levels of culpability and punishment.

Two important broad insights come from examining this psychological research. First, by considering self-control failure at the micro level — in a particular moment of action or inaction — psychological research on self-control helps uncouple self-control questions from broader questions about the existence of free will. The roots of failure to control one’s behavior, important though they may be, are separate from the question of an individual’s ability to do so at a specific time and place. Psychology’s robust findings on the fine-grained aspects of self-control suggest that self-control is a concept with meaning and usefulness for the law, regardless of one’s viewpoint about the existence of free will. Second, taking psychological research on self-control seriously indicates that criminal law may vastly underdescribe the scope of situations in which an individual lacks the ability to control her actions. That is, acts that the law calls “uncontrolled” are a mere subset of the behavior that psychology would call “uncontrolled.” The mismatch between the scope of self-control as described by psychology and criminal law helps to highlight that notions of self-control in the law are inherently constructed by the law itself, rather than reflecting some empirical reality, and that any efforts to define and understand the concept and role of self-control in law as purely positive, rather than normative, are misguided.

Related Situationist posts:

• The Situation of the Self
• The Situation of Self-Regulation
• The Situation of Willpower
• Friends on the Brain
• The Situation of Temptation
• David Vitter, Eliot Spitzer, John Edwards, Jon Ensign, and Now Mark Sanford: The Disposition Is Weaker than the Situation,
• Bargh and Baumeister and the Free Will Debate — Part I & Part II
• The Death of Free Will and the Rise of Cheating
• Interview of Eric Kandel
• Coalition of the Will-less
• Dan Dennett – “Free Will, Responsibility, and the Brain”
• Dan Dennett at Harvard Law on ‘Free Will, Responsibility, and the Brain’
• Interview with Professor Joshua Greene
• Daniel Dennett on the Situation of our Brain
• Dan Dennett on our Interior Situation
• The Death of Free Will and the Rise of Cheating
• Clarence Darrow on the Situation of Crime and Criminals
• Person X Situation X System Dynamics
• Situation” Trumps “Disposition” – Part I & Part II

Image from Flickr.

Justice for Trayvon

For The Situationist, Sabreena El-Amin (Harvard Law School student and President of the Student Association for Law and Mind Sciences (SALMS)), has authored the following legal analysis of the Trayvon Martin shooting and situationist analysis of the “stand your ground” doctrine.  We are pleased to publish it and look forward to more contributions from Sabreena and other members of SALMS.

The Trayvon Martin incident is of particular importance to me: not only as a Black person, not only as a law student, not only as a mother, but as a big sister. My younger brother is currently attending school at Barry University in Miami, Florida. He, like myself, loves Arizona Ice Tea. We are also both big fans of Skittles, though we have a particular preference for the sour kind. Most importantly, we both wear hoodies. I am now more nervous than ever for my brother: a 19-year-old black man walking the streets of Miami with a camera. With laws like the “Stand your Ground” statute, vigilantes like Zimmerman are free to roam the streets in Florida, singling out young black men and killing them seemingly without repercussions.

My argument will focus on two main points: 1) Zimmerman should have been arrested as the prosecution will likely be able to meet their burden of proof that his action was not in accordance with the statute; and 2) the Stand Your Ground statute should be repealed because a) it encourages armed individuals to respond to situations violently and b) it sanctions the attack of Blacks.  I will begin the article by outlining the facts as I know them. I understand that there are several different fact patterns floating around and the story is being developed daily. My arguments will be based solely on the facts mapped out below. I will continue by discussing why the facts would support the prosecution’s case, if one were to be brought, focusing mainly on a piece by Governor Granholm of Michigan. I will then go on to discuss the “Stand Your Ground” statute based on two psychological studies that show the statute endorses more violence than is reasonably necessary.

Facts*

Trayvon Martin, a 17-year-old Black male, was walking to his father’s home in a gated community in Sanford, FL after returning from a 7-Eleven convenience store. En route, 28-year-old self-appointed Neighborhood Watchman, George Zimmerman, spotted Trayvon and telephoned police that there was a suspicious young black man walking around. Zimmerman informed the police that the young man looked like he was on drugs and appeared to be reaching for something in his waistband. Initially Zimmerman claimed that the young man was coming right at him, and then that Trayvon was getting away. Zimmerman complained that “they” always get away. Dispatcher informed Zimmerman that they did not need him to follow Trayvon and Zimmerman said okay. Several residents of the area called in shortly after Zimmerman’s call to report that they heard screaming. In some cases, callers reported a black male lying on the ground. Each caller also heard gun shots and heard the screaming stop. One caller reported that there was a man in a white shirt on top of someone lying on the ground.

Police collected Trayvon’s body, tested him for drugs, ran a background check, labeled him John Doe and placed him in the morgue where he would lie for over 24 hours before he was identified. Trayvon was unarmed and in fact only had a can of Arizona Ice Tea and a bag of Skittles. Zimmerman was questioned after the shooting, but never arrested. Zimmerman weighed 250 pounds and had a history of vigilantism.

Zimmerman claims that he shot Trayvon in self defense. Florida has a statute (Fla. Stat. § 776.013, also called the “Stand Your Ground” statute) which states (in relevant part):

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

Zimmerman’s claims he was justified in his use of force based on this statute. It is not clear which clause Zimmerman’s defense is connected to.

Zimmerman has, since the incident, secured legal counsel. Zimmerman’s lawyer asserts that Zimmerman is not a racist and that he in fact mentors Blacks. His lawyer also stated that Zimmerman is currently in hiding, but has not fled the country. According to Zimmerman’s father, Zimmerman identifies as Hispanic.

Currently, Florida Governor Jed Bush does not believe Zimmerman’s actions are covered by the statute. There is a Department of Justice investigation in regards to the failure of the Sanford Police Department to arrest Zimmerman, President Obama has called for justice for Trayvon, and Sanford’s chief of police has stepped down. People across the country are expressing their distaste for the response to Trayvon’s murder and are, via protest, Facebook, articles, etc., calling for “Justice for Trayvon”.

Justice for Trayvon: Bringing Charges against Zimmerman

The “Stand Your Ground” statute essentially creates a presumption of self-defense in certain situations. Zimmerman has yet to be arrested because authorities do not believe there is enough evidence to rebut this presumption. I would like to focus this aspect of my piece on the following arguments: a) the facts of the case do not support a claim of self defense alleged pursuant to Fla. Stat. § 776.013(3) as Zimmerman appears to have been the attacker and not the victim, and b) the facts of the case do not support a claim of self defense pursuant to Fla. Stat. § 776.013(1) as Trayvon was unarmed and Zimmerman was likely acting unlawfully in his pursuit of Trayvon by misleading officials. Admittedly, only Zimmerman knows exactly what transpired during his altercation with Martin, and thus this argument may be moot after Zimmerman’s account becomes public.

Section 3 of the “Stand Your Ground” statute allows someone who is being attacked to respond with force and does not require them to first attempt to flee. Under a possible account of the facts, Zimmerman’s actions were self defense because he was attacked by Trayvon. Michigan Governor Jennifer M. Granholm wrote a piece on March 21, 2012 outlining several reasons why this account is unsupported by the facts as publicly known. In her piece Governor Granholm discusses five key pieces of evidence which refute Zimmerman’s claim:

• 1.The call from Zimmerman to law enforcement, and the officers telling Martin not to pursue. Zimmerman whispers what many have described as a racial slur under his breath.
• 2.There is a 911 call where you can hear a voice yelling for help and a firearm shot.
• 3.Trayvon’s father identified his voice on that 911 call on Al Sharpton’s Politics Nation program on MSNBC.
• 4.The account of the girlfriend, who says Trayvon told her by cellphone that he was being followed.
• 5.Trayvon was not armed and weighed between 75-100 pounds less than Zimmerman.

The evidence that we know of — the public evidence — establishes that Zimmerman was the pursuer, and not the victim.

In addition to this evidence, a 9-11 caller reported a man in a white shirt on top of a man lying on the ground. Another caller reported a man lying on the ground screaming “Help” and hearing gun shots go off before he got the chance to go to the man for help. Trayvon’s parents have identified this voice as their sons on the tape. Zimmerman, however, claims that this is his voice, but in connection with the other evidence (e.g., that he was the heavier of the two and that Trayvon was unarmed), this will likely be refuted. Based on the facts as alleged, the situation seems to have been initiated by Zimmerman. Even if Trayvon fought back after being pursued, his actions were justified based on the same statute that Zimmerman is currently hiding under.

Section 1 of the “Stand Your Ground” statute creates a presumption of self defense if a person is doing something unlawful and the person using force knows or reasonably believes that an unlawful act is occurring or about to occur. There has been some discussion at my law school that if Zimmerman asserts that he witnessed Trayvon about to break into someone’s home then Zimmerman may likely have a claim. I think this is unlikely for two reasons. First, Trayvon was unarmed and, based on all available evidence, innocently walking home from the convenience store. In order for the presumption in section 1 to be triggered, the attacked must have been in the process of committing certain crimes. There has been no evidence advanced indicating that Trayvon was participating in any crime. In fact the evidence points to Trayvon being engaged in innocent activity. Second, section (2)(c) asserts that this presumption is unavailable if the attacker is engaged in an unlawful activity at the time of the attack. As the 911 tape shows, Zimmerman was told not to follow Trayvon and said “okay.” This act can be seen as misleading police officers, who were likely told by dispatch that Zimmerman would be waiting for them to arrive before doing anything further. This act is likely in violation of Fla. Stat. § 843.06, which makes the “neglect or refusal to aid peace officers” “in the preservation of the peace” unlawful. Zimmerman’s false compliance with the order may have delayed the response time of the dispatched officers and been the reason why the police were unable to respond to Zimmerman’s call in time to save Trayvon’s life. Arguably, Zimmerman’s actions show  neglect to assist a peace officer and thus could qualify as unlawful acts that will exclude Zimmerman from the protection of Fla. Stat. § 776.013(1).

Justice for Blacks in Florida: Repeal the Stand Your Ground Statute

I would like to start this section by clarifying two points. First, Florida is not the only state to have a version of the “Stand Your Ground” statute. According to the above-mentioned piece by Gov. Granholm, who describes the statute as “part of the American Legislative Exchange Council (ALEC)’s cluster of pro-NRA bills that shot through legislatures in the past few years”, Florida is only one of 17 states to have a statute of this kind. Secondly, studies suggest that it is very possible for Zimmerman to be a rational, tolerant, even intelligent, person and still to have reacted in the manner that he did. Many people have labeled Zimmerman a racist and even called him sadistic for his response to an innocent young boy. Sadly, while this may be true for Zimmerman, it does not have to be. Due to the freedom that this law opens up for people to act upon their fears, which may be based on their predisposition to certain opinions, I believe this law should be repealed immediately. Every minute that this law and laws like it remain on the books another Black person’s life is in jeopardy.

Guns Breed Violence

In a piece entitled “Holding a Gun Influences You to Think Others are Armed,” David DiSalvo discusses psychological research that suggests Zimmerman may have reasonably believed that Trayvon was armed. As the title of the piece indicates, James Brockholm’s study, which will be published in the upcoming edition of Journal of Experimental Psychology, supports the idea that the possession of a gun will influence your opinion of whether those around you are armed. Brockholm’s conclusion is that a person’s ability to act upon certain impulses can “bias their recognition of objects… in dramatic ways.” In the study, individuals holding toy guns were more likely to believe a person had a gun than those who were holding a ball and who simply had guns in the room, but not in their hand. The article describes this as the “blending of perception and action representations” which cause those holding guns to believe others are too.

The statute and others like it (e.g. Wisconson’s Castle Doctrine under which a homeowner recently shot and killed 20-year-old, unarmed Bo Morrison, without being charged) is meant to provide a means for people to protect themselves when actually threatened. Based on Brockholm’s research, the statute is actually allowing people to act upon perceived threat that is automatically enhanced by their ability to act against the threat. This research supports the idea that individuals with guns are likely to act frequently because they can act, and not because there is an actually threat. In Bo’s case, his hands were both in the air. In Trayvon’s case, he was walking with a cell phone, an Arizona Ice Tea, and Skittles. Neither youth was armed. Neither was attempting to harm anyone. But two lives are lost, and importantly, two men have taken a life because they were able to, not because they had to. These statutes encourage violence by giving gun holders the right and encouraging them to “meet force with force” when the force they perceive will always be equal to the force they are capable of exerting themselves. These types of laws should be repealed immediately in order to prevent more innocent people from losing their lives and others from taking lives.

People Focus on Blacks when on the Look-out for Criminal Activity

Recently, I took a photograph with some of my Black classmates at Harvard Law School. We wore hoodies and held signs asking “Do we look suspicious?” Unfortunately, research completed by Jennifer Eberhardt, Valerie Purdie, Phillip Goff, and Paul Daves in 2005 concludes that for many people the answer to that question is yes. “Seeing Black: Race, Crime, and Visual Processing” asserts that stereotypes are bidirectional. The article states:

the mere presence of a Black man…can trigger thoughts that he is violent and criminal. Simply thinking about a Black person renders these concepts more accessible and can lead to misremember the Black person as the one holding the razor. Merely thinking about Blacks can lead people to evaluate ambiguous behavior as aggressive, to mis-categorize harmless objects as weapons, or to shoot quickly . . . .

The studies show that not only does thinking about Blacks make people think of crime, but thinking about crime makes people think of Blacks. These studies were intentionally done with both civilians and police officers. The officers were as susceptible to this association. Importantly, the study showed that when one is told to look out for crime, their visual attention focuses on Black faces. They may thus unconsciously avoid criminal activity of non-Black actors. For instance, when experimenters asked police officers “Who looks criminal?,” the officers choose Black faces more often than White faces. The study makes it clear that racial animus is not required. The association is automatic and is even sparked in Blacks and others minorities.

Based on this research, Zimmerman may have associated Trayvon with criminality without having any negative opinions of Blacks. As a neighborhood watchman put on guard to look out for crime, he was likely looking for Blacks. Zimmerman was attempting to crack down on several robberies that had occurred in his neighborhood, and the possibility of criminal activity was salient in his mind, when Trayvon walked innocently by. Zimmerman may have reasonably believed that Trayvon was about to engage in unlawful behavior, but this belief was based on stereotypes and not supported by what was actually occurring. Section 1 of the statute protects people who seek out criminals and prevent their crimes from being completed. As people often unconsciously associate African Americans with crime, they may seek out African Americans engaging in ambiguous behavior percieve it as criminal. Acting upon this perception, they may attack (as Zimmerman did), under the protective shield of the Stand Your Ground Statute, leading to the harm of either themselves or innocent individuals. Based on this research it is clear that the first section of the statute puts a target on Blacks.

Implications

The implications of the research that I have outlined in this section are that people who carry guns and seek out criminal activity will be searching for Blacks and will automatically associate ambiguous behavior with criminal activity. Laws like the “Stand Your Ground” statute give these individuals the right to act upon their perception and harm these Black people regardless of what they are doing. This means that Blacks in such situations will likely have no control over being shot or attacked. Even worse it means that individuals will be searching for Blacks and may unconsciously overlook true criminal activity in an attempt to find images that support their perception. We should not provide support for individuals to act upon irrational conclusions that are not supported by the circumstances. This does not mean that there should be no protection of individuals who respond reasonably to imminent danger, but we should require their perception to be supported by fact and not stereotype and thus require them to be able to connect their fear to something more than the person’s race. We should deem this on a case by case and remove the blanket approval of such behavior. People should be instructed to call police when observing unlawful behavior or to attempt to retreat when in fear of being attacked. Thus the statute should be repealed and self-defense should return to being a defense of murder, and not a presumption of innocence that must be rebutted.

Conclusion

What happened to Trayvon Martin is an all too familiar story to many Blacks. We are profiled regularly based on stereotypes that we have no control over. As many of us mourn Trayvon’s death and remember many of our other brothers and sisters who have fallen victim to racial stereotyping, there is a concurrent legal movement attempting to shed some hope on the issue by bringing charges against Zimmerman. This movement should also focus on repealing the Florida statute. Once these actions are taken, we will be one step closer to Justice for Trayvon.

*I would like to thank Anisha Queen, David Korn, James Smith, and Professor Jon Hanson for their assistance and inspiration with this piece.

** The facts have been compiled from the following articles:

• http://www.foxnews.com/us/2012/03/24/lawyer-advising-trayvons-killer-denies-racism-as-prosecutor-vows-were-going-to/
• http://www.craigboyce.com/w/2012/03/trayvon-martin-shooting-911-call/
• http://www.slate.com/articles/news_and_politics/crime/2012/03/why_george_zimmerman_trayvon_martin_s_killer_hasn_t_been_prosecuted_.html
• http://www.huffingtonpost.com/jennifer-m-granholm/5-reasons-zimmermans-stan_b_1371554.html

Related Situationist posts:

• New Research on the Dangers of Private Law Enforcement
• Race, Guns, and the Danger of Private Law Enforcement
• If Guns Don’t Kill People, Sometimes Gun-Saturated Situations Do
• The Psychology of Guns and Race
• Why Race May Influence Us Even When We “Know” It Doesn’t
• He’s a Banana-Eating Monkey, but I’m Not a Racist
• Jennifer Eberhardt’s “Policing Racial Bias” – Video
• A Situationist Considers the Implications of Simpson Sentencing
• The Situation of Handguns on Urban Streets-Abstract
• The Situation of First-Person Shooters
• Guilt and Racial Prejudice
• Perceptions of Racial Divide
• Banaji & Greenwald on Edge – Part IV

Image from Flickr.

Brain and Blame

From The Atlantic (by David Eagleman):

On the steamy first day of August 1966, Charles Whitman took an elevator to the top floor of the University of Texas Tower in Austin. The 25-year-old climbed the stairs to the observation deck, lugging with him a footlocker full of guns and ammunition. At the top, he killed a receptionist with the butt of his rifle. Two families of tourists came up the stairwell; he shot at them at point-blank range. Then he began to fire indiscriminately from the deck at people below. The first woman he shot was pregnant. As her boyfriend knelt to help her, Whitman shot him as well. He shot pedestrians in the street and an ambulance driver who came to rescue them.

The evening before, Whitman had sat at his typewriter and composed a suicide note:

I don’t really understand myself these days. I am supposed to be an average reasonable and intelligent young man. However, lately (I can’t recall when it started) I have been a victim of many unusual and irrational thoughts.

By the time the police shot him dead, Whitman had killed 13 people and wounded 32 more. The story of his rampage dominated national headlines the next day. And when police went to investigate his home for clues, the story became even stranger: in the early hours of the morning on the day of the shooting, he had murdered his mother and stabbed his wife to death in her sleep.

It was after much thought that I decided to kill my wife, Kathy, tonight … I love her dearly, and she has been as fine a wife to me as any man could ever hope to have. I cannot rationa[l]ly pinpoint any specific reason for doing this …

Along with the shock of the murders lay another, more hidden, surprise: the juxtaposition of his aberrant actions with his unremarkable personal life. Whitman was an Eagle Scout and a former marine, studied architectural engineering at the University of Texas, and briefly worked as a bank teller and volunteered as a scoutmaster for Austin’s Boy Scout Troop 5. As a child, he’d scored 138 on the Stanford-Binet IQ test, placing in the 99th percentile. So after his shooting spree from the University of Texas Tower, everyone wanted answers.

For that matter, so did Whitman. He requested in his suicide note that an autopsy be performed to determine if something had changed in his brain—because he suspected it had.

I talked with a Doctor once for about two hours and tried to convey to him my fears that I felt [overcome by] overwhelming violent impulses. After one session I never saw the Doctor again, and since then I have been fighting my mental turmoil alone, and seemingly to no avail.

Whitman’s body was taken to the morgue, his skull was put under the bone saw, and the medical examiner lifted the brain from its vault. He discovered that Whitman’s brain harbored a tumor the diameter of a nickel. This tumor, called a glioblastoma, had blossomed from beneath a structure called the thalamus, impinged on the hypothalamus, and compressed a third region called the amygdala. The amygdala is involved in emotional regulation, especially of fear and aggression. By the late 1800s, researchers had discovered that damage to the amygdala caused emotional and social disturbances. In the 1930s, the researchers Heinrich Klüver and Paul Bucy demonstrated that damage to the amygdala in monkeys led to a constellation of symptoms, including lack of fear, blunting of emotion, and overreaction. Female monkeys with amygdala damage often neglected or physically abused their infants. In humans, activity in the amygdala increases when people are shown threatening faces, are put into frightening situations, or experience social phobias. Whitman’s intuition about himself—that something in his brain was changing his behavior—was spot-on.

Stories like Whitman’s are not uncommon: legal cases involving brain damage crop up increasingly often. As we develop better technologies for probing the brain, we detect more problems, and link them more easily to aberrant behavior. Take the 2000 case of a 40-year-old man we’ll call Alex, whose sexual preferences suddenly began to transform. He developed an interest in child pornography—and not just a little interest, but an overwhelming one. He poured his time into child-pornography Web sites and magazines. He also solicited prostitution at a massage parlor, something he said he had never previously done. He reported later that he’d wanted to stop, but “the pleasure principle overrode” his restraint. He worked to hide his acts, but subtle sexual advances toward his prepubescent stepdaughter alarmed his wife, who soon discovered his collection of child pornography. He was removed from his house, found guilty of child molestation, and sentenced to rehabilitation in lieu of prison. In the rehabilitation program, he made inappropriate sexual advances toward the staff and other clients, and was expelled and routed toward prison.

At the same time, Alex was complaining of worsening headaches. The night before he was to report for prison sentencing, he couldn’t stand the pain anymore, and took himself to the emergency room. He underwent a brain scan, which revealed a massive tumor in his orbitofrontal cortex. Neurosurgeons removed the tumor. Alex’s sexual appetite returned to normal.

The year after the brain surgery, his pedophilic behavior began to return. The neuroradiologist discovered that a portion of the tumor had been missed in the surgery and was regrowing—and Alex went back under the knife. After the removal of the remaining tumor, his behavior again returned to normal.

When your biology changes, so can your decision-making and your desires. The drives you take for granted (“I’m a heterosexual/homosexual,” “I’m attracted to children/adults,” “I’m aggressive/not aggressive,” and so on) depend on the intricate details of your neural machinery. Although acting on such drives is popularly thought to be a free choice, the most cursory examination of the evidence demonstrates the limits of that assumption.

Alex’s sudden pedophilia illustrates that hidden drives and desires can lurk undetected behind the neural machinery of socialization. When the frontal lobes are compromised, people become disinhibited, and startling behaviors can emerge. Disinhibition is commonly seen in patients with frontotemporal dementia, a tragic disease in which the frontal and temporal lobes degenerate. With the loss of that brain tissue, patients lose the ability to control their hidden impulses. To the frustration of their loved ones, these patients violate social norms in endless ways: shoplifting in front of store managers, removing their clothes in public, running stop signs, breaking out in song at inappropriate times, eating food scraps found in public trash cans, being physically aggressive or sexually transgressive. Patients with frontotemporal dementia commonly end up in courtrooms, where their lawyers, doctors, and embarrassed adult children must explain to the judge that the violation was not the perpetrator’s fault, exactly: much of the brain has degenerated, and medicine offers no remedy. Fifty-seven percent of frontotemporal-dementia patients violate social norms, as compared with only 27 percent of Alzheimer’s patients.

Changes in the balance of brain chemistry, even small ones, can also cause large and unexpected changes in behavior. Victims of Parkinson’s disease offer an example. In 2001, families and caretakers of Parkinson’s patients began to notice something strange. When patients were given a drug called pramipexole, some of them turned into gamblers. And not just casual gamblers, but pathological gamblers. These were people who had never gambled much before, and now they were flying off to Vegas. One 68-year-old man amassed losses of more than $200,000 in six months at a series of casinos. Some patients became consumed with Internet poker, racking up unpayable credit-card bills. For several, the new addiction reached beyond gambling, to compulsive eating, excessive alcohol consumption, and hypersexuality.

What was going on? Parkinson’s involves the loss of brain cells that produce a neurotransmitter known as dopamine. Pramipexole works by impersonating dopamine. But it turns out that dopamine is a chemical doing double duty in the brain. Along with its role in motor commands, it also mediates the reward systems, guiding a person toward food, drink, mates, and other things useful for survival. Because of dopamine’s role in weighing the costs and benefits of decisions, imbalances in its levels can trigger gambling, overeating, and drug addiction—behaviors that result from a reward system gone awry. Physicians now watch for these behavioral changes as a possible side effect of drugs like pramipexole. Luckily, the negative effects of the drug are reversible—the physician simply lowers the dosage, and the compulsive gambling goes away.

The lesson from all these stories is the same: human behavior cannot be separated from human biology. If we like to believe that people make free choices about their behavior (as in, “I don’t gamble, because I’m strong-willed”), cases like Alex the pedophile, the frontotemporal shoplifters, and the gambling Parkinson’s patients may encourage us to examine our views more carefully. Perhaps not everyone is equally “free” to make socially appropriate choices.

Does the discovery of Charles Whitman’s brain tumor modify your feelings about the senseless murders he committed? Does it affect the sentence you would find appropriate for him, had he survived that day? Does the tumor change the degree to which you consider the killings “his fault”? Couldn’t you just as easily be unlucky enough to develop a tumor and lose control of your behavior?

On the other hand, wouldn’t it be dangerous to conclude that people with a tumor are free of guilt, and that they should be let off the hook for their crimes?

More.

Related Situationist Posts:

• Dan Dennett at Harvard Law on “Free Will, Responsibility, and the Brain”,
• David Eagleman on the Brain and the Law
• “Interview with Professor Joshua Greene,”
• “Daniel Dennett on the Situation of our Brain,”
• “Dan Dennett on our Interior Situation,”
• “Bargh and Baumeister and the Free Will Debate,”
• “Bargh and Baumeister and the Free Will Debate – Part II,”
• “The Death of Free Will and the Rise of Cheating,”
• “Clarence Darrow on the Situation of Crime and Criminals,”
• “Person X Situation X System Dynamics,” “Situation” Trumps “Disposition” – Part I & Part II,”
• “The (Unconscious) Situation of our Consciousness – Part I, Part II, Part III, & Part IV” and
• “Coalition of the Will-less.”

Intuitions of Punishment?

Owen Jones and Robert Kurzban recently posted their paper, “Intuitions of Punishment” (forthcmoing in the University of Chicago Law Review) on SSRN.  Here’s the abstract.

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Recent work reveals, contrary to wide-spread assumptions, remarkably high levels of agreement about how to rank order, by blameworthiness, wrongs that involve physical harms, takings of property, or deception in exchanges. In The Origins of Shared Intuitions of Justice we proposed a new explanation for these unexpectedly high levels of agreement.

Elsewhere in this issue, Professors Braman, Kahan, and Hoffman offer a critique of our views, to which we reply here. Our reply clarifies a number of important issues, such as the interconnected roles that culture, variation, and evolutionary processes play in generating intuitions of punishment.

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You can download the article for free here.  For a sample of related Situationist posts, see “Michael McCullough on the Situation of Revenge and Forgiveness,” “Steven Pinker Speaks at Harvard Law School,” “John Darley on “Justice as Intuitions” – Video,” “The Situation of Punishment (and Forgiveness),” “The Situation of Revenge,” “The Situation of Punishment,” and “Why We Punish.”

Thomas Nadelhoffer on Neuroscience, Philosophy, and Law

From The Project on Law & Mind Sciences at Harvard Law School (PLMS):

Below is a fascinating and enlightening 51-minute interview of Thomas Nadelhoffer by Harvard Law Student Brian Wood.  The interview, titled “Developments in Neuroscience and their Implications for Criminal Law,” lasts just over 51 minutes.  It was conducted the Law and Mind Science Seminar at Harvard (taught by Situationist Editor Jon Hanson).

Bio:

Situationist Contributor Dr. Thomas Nadelhoffer was born and raised in Atlanta, Georgia. He has earned degrees in philosophy from The University of Georgia (BA), Georgia State University (MA), and Florida State University (PhD). Since 2006, he has been an assistant professor of philosopy and a member of the law and policy faculty at Dickinson College in Carlisle, Pennsylvania. He is currently at Duke University as a Visiting Scholar in the Kenan Institute for Ethics.

His main areas of research include moral psychology, the philosophy of action, free will, punishment theory, and neurolaw. He is particularly interested in research at the cross roads of philosophy and the sciences of the mind. His articles have appeared in journals such as Analysis, Midwest Studies in Philosophy, Mind & Language, Neuroethics, and Philosophy and Phenomenological Research. He is the coordinator of the blogs Flickers of Freedom and the Law and Neuroscience Blog. He is also a contributing author to blogs such as The Situationist, The Leiter Reports, and Experimental Philosophy.

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Vodpod videos no longer available.

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Table of contents:

• What have you been working on recently?  0:22
• What are some areas of the legal system in which this science is relevant? 1:07
• What are the problems with the traditional approaches to using science in the criminal system, and how are new scientific methods relevant to fixing them? 2:15
• How could these newer scientific methods be employed? 4:09
• What are the rationales society has traditionally cited as justifying criminal punishment? 6:55
• Can you explain what Compatibalism is? 10:17
• Aren’t there problems with notions of moral responsibility under Compatibalism? 12:26
• How do neuroscience, Compatibalism, and determinism relate to our notions of law? 12:55
• What do you see as the problems with the classic approaches to punishment? 15:25
• Is there anything especially strange about Retributivism to you? 20:37
• Can you detail what you believe to be the just reasons for punishment and how society can punish people more justly? 23:41
• In your view, how would you punish psychopaths under the consequentialist rationale? 30:40
• Can you give an example of the distinctions psychopaths cannot draw? 34:50
• What’s the most interesting experiment you have conducted? 37:01
• Do you think these participants just misunderstood what determinism is? 38:15
• What qualities do you believe you and other researchers and philosophers need to be successful? 40:03
• How has what you have learned through your research influenced the way you live you life? 41:35
• How do you see the relationship of law and mind science developing in the future? 44:55

The Spatial Situation of Crime and Criminal Law

No pressure (except for you, grandma — loyal reader number 1), but I have a new article out in the most recent issue of the Cardozo Law Review.  The abstract for The Geography of Criminal Law is below.

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When Westerners explain the causes of actions or outcomes in the criminal law context, they demonstrate a strong tendency to overestimate the importance of dispositional factors, like thinking, preferring, and willing, and underestimate the impact of interior and exterior situational factors, including environmental, historical, and social forces, as well as affective states, knowledge structures, motives, and other unseen aspects of our cognitive frameworks and processes. One of the situational factors that we are particularly likely to overlook is physical space—that is, landscapes, places, natures, boundaries, and spatialities. Our shortsightedness comes at a great cost. Spatial concerns shape legal structures, order interactions, and influence behavior.

To understand these dynamics, this Article establishes the foundation for a new spatial analysis of criminal law. By casting a wide net and capturing data across a diverse set of fields, this Article uncovers unappreciated but vital parallels, connections, and patterns concerning the ways in which physical space—and the meanings that we attach to spatial elements—affect (1) the proximate decision to commit a crime, (2) the likelihood a given person will become a criminal, (3) the experience of victimization, (4) the way in which policing is conducted, (5) what a crime is and how it is prosecuted, and (6) the consequences of being convicted.

As the first Article in a broader project, this systematic spatial analysis provides the basis for future work dedicated to understanding the origins of our criminal system and assessing whether our current legal structures—from the laws on the books to the practices of police officers to our approaches to punishment—align with our societal needs and values, and, thus, whether the structures we have in place ought to be changed. Instead of building its normative conclusions on geographical analysis alone, the project employs the lens of the mind sciences—including social psychology, social cognition, evolutionary psychology, and related fields—to investigate and explain identified spatial dynamics. This research offers the best hope for unlocking, among other concerns, why our justice system has focused on physically isolating criminals from society; why laws are frequently structured around protecting the physical boundaries of the body, home, and community; why more police shootings occur in certain areas than others; and why we have spatially-embedded laws that become inoperative when an individual leaves a jurisdiction.

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Click here for the full article on SSRN.

For a sample of related Situationist posts, see “The Situation of Looting,” “The Situation of Suspicion,” “The Legal Situation of the Underclass,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “The Situation of Criminality – Abstract.”

Should Addiction Be Criminalized?

From Big Think: Nora Volkow, Director of the National Institute on Drug Abuse, argues that abusers should be treated the same as anyone with a debilitating disease.

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Vodpod videos no longer available.

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Transcript:

Question: How should drug addicts be treated in society?

Nora Volkow: Drug addiction is a disease of the brain. It’s a disease of the brain. We don’t put people that have diseases in the jail or in prison because they actually, that’s what we decide, right? I don’t even dare myself to the concept of putting someone in jail because they have a disease. My brain doesn’t even allow me to think that way.

And yet we do that with addicted people and I’ve thought a lot, why is our society criminalizing the person that’s addicted to drugs? And I think it’s because it has been very hard for people to recognize that our behaviors and our ability to control our desires is basically the product of very complex systems in the brain that enable us to perceive these desires, to control them, to make the right choices. This is very difficult for people that have all of their faculties intact, to understand that not everybody can do it. And so I sort of easier to say, “Well, if I can do it, that person is not doing it because they are choosing to just have a good time.” And so we’ve taken that approach and I guess the other element that happens with drugs, the drive to take these drugs can be so overpowering, so, so overpowering, because it’s hard wiring of the brain, the signaling is this is something that is necessary for survival. That’s what drugs have done in a person that’s addicted. They’ve generated the message as the same intense as if you haven’t eaten. And it’s a signal, you have to eat or you’ll die, you have to drink water or you’ll die, very, very powerful signals. Very difficult to control. You haven’t eaten for one week and you have food in front of you, just try to say no to that food. It’s the same drive.

So they can, when they are in those situations, this intense drive, they can do behaviors that are criminal, they can go and steal, in order to be able to get the drug. Like someone who has not eaten for one week, if they have nothing but to steal the food, they may steal the food. So that leads to the criminal behavior that then leads the person and the system to react very negatively, you should not steal. Of course you should not steal. But people should not be hungry, people should not be in the situation that they have to steal in order to eat. That should not happen. Like a person should not be, not given treatment that is in a situation where their body’s experiencing the drug as if it were a survival need. They should be provided with treatment.

So yes, we should deal with drug addiction as a disease, like we deal with any of the other medical diseases. We should not be criminalizing it. When we criminalize a drug addict, nobody wins. Certainly you’re not going to improve the behavior of that person that is thrown into jail. When they get out of the jail, the first thing they’ll do is relapse. Unless you treat them in jail. If you treat them in jail and you maintain the treatment when they leave jail, then you’re giving them a chance. If you’re throwing them in jail and not providing any treatment or treating them in jail and then throwing them out, they will relapse.

So, and that costs an enormous amount of money, to put people in jail because they are addicted to drugs is very, very costly. It doesn’t make any sense. Your tax dollar goes into the criminal justice system, it’s much less expensive to treat. And if you treat the person, you’re giving that person a chance. And you’re giving the family of that person a chance. So it’s a win-win. You’re basically decrease your cost on criminal behavior, you decrease reincarceration and the person can go back and become an active member of society at all levels.

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To read a sample of related Situationist posts, see “The Situational Effects of Dopamine,” “The Addictive Situation of Fatty Food,” “The Science of Addiction, The Myth of Choice,” “Are Video Games Addictive?,” “The Situation of Gambling,” “Crazy Little Thing Called Love” “The Situation of Punishment (and Forgiveness),” “The Situation of Punishment,” “Why We Punish,” “Clarence Darrow on the Situation of Crime and Criminals,” and “Law & the Brain.”

The Situation of False Confessions

Ian Herbert, one of the very best translators of mind science research for popular audiences, has written an informative and disconcerting article, “The Psychology and Power of False Confessions” for the latest issue of The Observer.”  Here are some excerpts.

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We know that false confessions do happen on a fairly regular basis. Because of advances in DNA evidence, the Innocence Project has been able to exonerate more than 200 people who had been wrongly convicted, 49 of whom had confessed to the crime we now know they didn’t commit. In a survey of 1,000 college students, four percent of those who had been interrogated by police said they gave a false confession.

But Why?

Why do people confess to crimes they didn’t commit? . . . . In the November 2004 issue of Psychological Science in the Public Interest, APS Fellow Saul Kassin looked at the body of research and described how the police are able to interrogate suspects until they confess to a crime they didn’t commit.

Generally, it starts because people give up their Miranda rights. In fact, Richard A. Leo found that a majority of people give up the right to remain silent and the right to an attorney. In fact, according to self-report data, innocent suspects gave up their rights more often than guilty suspects (most told Leo either that this was because they felt that they didn’t have anything to hide because they were innocent or that they thought it would make them look guilty).

Once a suspect starts talking, the police can use a variety of techniques to make the accused feel as though they are better off confessing than continuing to deny (these include promises of leniency and threats of harsher interrogation or sentences). If a suspect feels like a conviction is inevitable not matter what he or she says, confessing may seem like a good idea.

But, in some cases, the accused comes to believe that he or she actually did commit the crime. It’s been shown repeatedly that memory is quite malleable and unreliable. Elizabeth Loftus has repeatedly shown that the human brain can create memories out of thin air with some prompting. In a famous series of experiments, Loftus, APS Past President, was able to help people create memories for events that never happened in their lives simply through prompting. She helped them “remember” being lost in a shopping mall when they were children, and the longer the experiment went on, the more details they “remembered.” The longer police interrogate a suspect, emphatic about his guilt and peppering their interrogation with details of the crime, the more likely a suspect is to become convinced himself.

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Despite the evidence that false confessions are a regular occurrence, most jurors struggle with the concept . . . . Confessions are difficult to discount, even if they appear to be coerced. Years ago, Kassin noticed that cases with confessions have an unusually high conviction rate, and since then he has dedicated his life to studying why that happens and what can be done about it.

In a 1997 study, Kassin and colleague Katherine Neumann gave subjects case files with weak circumstantial evidence plus either a confession, an eyewitness account, a character witness, or no other evidence. Across the board, prospective jurors were more likely to vote guilty if a confession was included in the trial, even when they were told that the defendant was incoherent at the time of the confession and immediately recanted what he said.

Kassin and Neumann also did two simultaneous studies to further explore the power of confessions. In one, they had people watch a trial and turn a dial to rate the extent to which evidence convinced them the defendant was guilty or innocent. The other asked potential jurors after the trial which evidence was most powerful. In both the mid-trial and post-trial ratings, jurors saw the confession as the most incriminating. Other studies have shown that conviction rates rise even when jurors see confessions as coerced and even when they say that the confession played no role in their judgment. “I don’t honestly think juries stand a chance in cases involving confessions,” Kassin says. “They’re bound to convict.”

Kassin says he doesn’t blame jurors. He travels around the country lecturing on the psychology of false confessions and he says “the most common reaction I get from a lay audience is, ‘Well, I would never do that. I would never confess to something I didn’t do.’ And people apply that logic in the jury room. It’s just that basic belief that false confessions don’t occur.” What’s more, the evidence juries are given in conjunction with the false confessions is very damning, Kassin says. False confessions of guilt often include vivid details of how a crime was committed — and why. Confessions sometimes even come with an apology to the family. It’s no wonder jurors have trouble discounting them.

What confessions rarely include is an explanation of why the person confessed. In most states, police are not required to videotape the interrogations, just the confessions. So juries don’t get to see any potential police coercion and they don’t get to see the police planting those vivid details in the minds of the suspects.

And that may be just the tip of the iceberg. Kassin believes that confessions can have a dramatic impact on trials even if they never make it into a courtroom. They can influence potential eyewitnesses, for example, and taint other kinds of evidence.

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To read the entire article, including a section discussing Kassin’s fascinating research with psychologist Lisa Hasel testing the effect of confessions on eyewitnesses, click here.  To visit Ian Herbert’s superb blog, We’re Only Human, click here.

For a sample of related Situationist posts, see “The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “The Painful Situation of Guilt,” “A Situationist View of Criminal Prosecutors,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “The Justice Department, Milgram, & Torture,” “Why Torture? Because It Feels Good (at least to “Us”),” “The Situation of Solitary Confinement,” “The Situation of Punishment (and Forgiveness),” “Clarence Darrow on the Situation of Crime and Criminals,” “The Situation of Punishment,” “Why We Punish,” “The Situation of Death Row,” and “Lessons Learned from the Abu Ghraib Horrors.”

A Situationist View of Habeas Corpus

Eve Brensike Primus posted her recent, interesting article, “A Structural Vision of Habeas Corpus” (98 California Law Review (2009-2010)) on SSRN.   Here’s the abstract.

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For decades, scholars and judges have assumed that federal habeas corpus review of state court criminal convictions should focus on the individual rights of habeas petitioners and that the federal courts should ask whether a state prisoner is being unlawfully detained because the state violated his individual federal rights. This individualized approach to federal habeas review is expensive, time-consuming, and woefully ineffective in stopping states from violating defendants’ federal rights. Indeed, many states systematically violate criminal defendants’ federal rights with impunity. This Article proposes a new conception of federal habeas review under which the federal courts focus on states, not on individual petitioners. Federal habeas relief should be available when, but only when, a state routinely violates its criminal defendants’ federal rights as part of a systemic practice. Reconfiguring federal habeas corpus review to focus on states and systemic practices would reduce redundancy, increase efficiency, and be more respectful of state institutions while, at the same time, recovering one of the original and now lost purposes of federal habeas corpus review.

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To download the paper for free, click here.  For a sample of related Situationist posts, see “The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “Tom Tyler on “Strategies of Social Control” – Video.”

Andrew Papachristos at Harvard Law School

On Monday, October 5, the HLS Student Association for Law and Mind Sciences (SALMS) is hosting a talk by Professor  Andrew Papachristos entitled “Why Do Criminals Obey the Law: The Influence of Law and Social Networks on Active Gun Users.”

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Our findings suggest that while criminals as a whole have negative opinions of the law and legal authority, the sample of gun offenders (just like non-criminals) are more likely to comply with the law when they believe in (a) the substance of the law, and (b) the legitimacy of legal actors, especially the police. Moreover, we find that opinions of compliance to the law are not uniformly distributed across the sample population. In other words, not all criminals are alike in their opinions of the law. Gang members – but especially gang members with social networks saturated with criminal associates – are significantly less likely to view the law and its agents as a legitimate form of authority. However, those individuals (including gang members) with less saturated criminal networks, actually tend to have more positive opinions of the law, albeit these opinions are still overall negative.

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The event will take place in Pound 200 at Harvard Law School, from 12:00 – 1:00 p.m.  For more information, e-mail salms@law.harvard.edu.

For a sample of related Situationist posts, see”The Legal Situation of the Underclass,” “The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “Why Criminals Obey the Law – Abstract,” and “Tom Tyler on “Strategies of Social Control” – Video.”

The Legal Situation of the Underclass

David Ray Papke, has posted his recent paper, “Law, Legal Institutions, and the Criminalization of the Underclass” on SSRN.  Here’s the abstract.

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The contemporary underclass is defined not by race but rather by its weak or nonexistent ties to the labor market. Members of the underclass are more likely to be labeled as criminals than are any other members of society. The process is not a tightly coordinated conspiracy, but in various ways police, prosecutors, and jailers routinely deem members of the underclass to be nefarious lawbreakers. While in many cases underclass men and women have committed acts that justify this perception, the criminal justice system as a whole is too eager and too hasty to attach the criminal label to members of the underclass. What’s more, law and legal institutions contribute to an even broader process of criminalization, one which assumes the entire underclass is criminal. This criminalization of the underclass dooms members of the underclass to be outsiders in American life and becomes a central and powerful premise in the general framework of sociopolitical thought.

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To download the paper for free, click here.  For a sample of related Situationist posts, see “A Situationist View of Criminal Prosecutors,” “Jennifer Eberhardt’s “Policing Racial Bias” – Video,” “The Situation of Criminality – Abstract,” “Clarence Darrow on the Situation of Crime and Criminals,” “The Racial Situation of Criminal Juries and the Consequences,” “The Situation of “Justice” in Tulia Texas,” “Jena 6 – Part I,” and “Jena 6 – Part II.”

The Secret Politics of the Compatibilist Criminal Law

I recently stumbled upon a really provocative paper by Anders Kaye entitled, “The Secret Politics of the Compatibilist Criminal Law.” Given that one of the key issues addressed in  the paper is whether compatibilist theories of free will–which focus very heavily on dispositional traits and conscious mental states–can accommodate situational forces that are criminogenic (e.g., poverty and early childhood abuse).  According to Kaye, compatibilist theories of free will and responsibility have been used by contemporary legal retributivists such as Michael Moore and Stephen Morse to shield the criminal law from developments in behavioral science, criminology, etc. that might otherwise lead to a less punitive justice system as well as a more egalitarian society.  In short, Kaye suggests that compatibilism is not a “politically innocent” theory of free will.  Here is the abstract:

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Many criminal theorists say that we have a ‘compatibilist’ criminal law, by which they mean that in our criminal law a person can deserve punishment for her acts even if she does not have ‘genuinely’ free will. This conception of the criminal law harbors and is driven by a secret politics, one that resists social change and idealizes the existing social order. In this Article, I map this secret politics. In so doing, I call into question the descriptive accuracy of the compatibilist account of the criminal law, and set the stage for a franker discussion of criminal punishment – one that recognizes that the perpetual struggle to say just who ‘deserves’ punishment is driven as much by brute politics and the competition to allocate power and resources in society as by any independent moral logic.

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There is already a heated debate about Kaye’s novel line of reasoning over at The Garden of Forking Paths.  However, it would be nice to see an active comment thread here at The Situationist as well.  So, please take a look at the paper and then give us your thoughts!

For a sample of related Situationist posts, see “A Situationist View of Criminal Prosecutors,” “The Legal Brain,” “Clarence Darrow on the Situation of Crime and Criminals,” “Person X Situation X System Dynamics,” “Situation” Trumps “Disposition” – Part I & Part II,” and “The (Unconscious) Situation of our Consciousness – Part I, Part II, Part III, & Part IV.”

Construing “Acquaintance Rape”

Situationist Contributor Dan Kahan recently posted his fascinating paper, “Culture, Cognition, and Consent: Who Perceives What, and Why, in ‘Acquaintance Rape’ Cases.”  Here’s the abstract.

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This paper uses the theory of cultural cognition to examine the debate over rape-law reform. Cultural cognition refers to the tendency of individuals to conform their perceptions of legally consequential facts to their defining group commitments. Results of an original experimental study (N = 1,500) confirmed the impact of cultural cognition on perceptions of fact in a controversial acquaintance-rape case. The major finding was that a hierarchical worldview, as opposed to an egalitarian one, inclined individuals to perceive that the defendant reasonably understood the complainant as consenting to sex despite her repeated verbal objections. The effect of hierarchy in inclining subjects to favor acquittal was greatest among women; this finding was consistent with the hypothesis that hierarchical women have a distinctive interest in stigmatizing rape complainants whose behavior deviates from hierarchical gender norms. The study also found that cultural predispositions have a much larger impact on outcome judgments than do legal definitions, variations in which had either no or a small impact on the likelihood subjects would support or oppose conviction. The paper links date-rape reform to a class of controversies in law that reflect symbolic status competition between opposing cultural groups, and addresses the normative implications of this conclusion.

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You can download the paper for free here.  To read a sample of related Situationist post see “The Situation of Blaming Rihanna,” “What Counts as Rape?,” “Unrecognized Injustice — The Situation of Rape,” “The Cultural Situation of the HPV Vaccine – Abstract,” “Law, Chicken Sexing, Torture Memo, and Situation Sense,” “Culture and Identity-Protective Cognition – Abstract,” “The Second National Risk and Culture Study – Abstract,” and “Whose Eyes are You Going to Believe?.”

The Post-Obama Situation of Racism – Abstract

Ian Haney-Lopez, has recently posted his thoughtful paper, “Post-Racial Racism: Crime Control and Racial Stratification in the Age of Obama” on SSRN.  Here is the abstract.

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What does the 2008 election of Barack Obama to the United States presidency portend for race in America? This Essay uses the tremendous racial disparities in the American crime control system to assess race and racism as key features of contemporary society. The Essay begins by considering a compelling thesis that racialized mass incarceration stems from backlash to the civil rights movement. If true, this raises the possibility that Obama’s election, potentially marking the end of backlash politics, also represents a likely turning point in the war on crime. The Essay then reconsiders mass imprisonment from the perspective of “racial stratification,” a structural theory that emphasizes the simultaneous formation of racial categories and the misallocation of resources between races. A stratification approach leaves one less sanguine about rapid change in American race relations, though without disparaging either the historic nature of Obama’s inauguration or the possibility of incremental improvements in racial justice. Reflecting the continued need to push for positive racial change, the Essay concludes by arguing morally and politically for a renewed focus on racism, in particular on “post-racial racism.”

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To download the paper for free, click here.  For a sample of related Situationist posts, see “The Situation of the Obama Presidency and Race Perceptions,” “Black History is Now,” “The Cognitive Costs of Interracial Interactions,” “Guilt and Racial Prejudice,” “Perceptions of Racial Divide,” “The Situation of Solitary Confinement,” and “Examining Why Estimated “Costs” of Racial Inequality Vary by Race.”

Behavioral Criminal Law and Economics – Abstract

Richard McAdams and Thomas Ulen recently posted their paper, “Behavioral Criminal Law and Economics,” on SSRN.  Here’s the paper’s abstract.

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A behavioral economics literature identifies how behaviorally-derived assumptions affect the economic analysis of criminal law and public law enforcement. We review and extend that literature. Specifically, we consider the effect of cognitive biases, prospect theory, hedonic adaptation, hyperbolic discounting, fairness preferences, and other deviations from standard economic assumptions on the optimal rules for deterring potential offenders and for regulating (or motivating) potential crime victims, legislators, police, prosecutors, judges, and juries.

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For those interested in a more detailed summary, we have excerpted portions of the paper’s introduction below.

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The standard theoretical law‐and‐economics account of criminal behavior begins from the observation that potential criminals are rational decisionmakers. Becker (1969). The theory assumes that potential criminals compare the expected costs and benefits of criminal activity, where the expected benefits include the anticipated monetary and nonmonetary returns to the crime, discounted by their probabilities of realization, and the expected costs of the crime, which include formal and informal sanctions (the latter including loss of lawful employment opportunities, social stigma, and guilt), discounted by the probabilities of detection. If the expected benefits exceed the expected costs, then the rational potential criminal commits the crime; otherwise, he or she does not. Moreover, the rational potential criminal compares the expected costs and benefits of criminal activity with those of legitimate activity and rationally allocates her time and other resources between those alternatives so that the marginal net benefit is equated.

Similarly, the standard law‐and‐economics account of other participants in the criminal justice system—police, judges, prosecutors, defense attorneys, juries, and legislators—also presumes rational decisionmaking. So, the police—both individually and collectively—may choose to allocate their limited resources according to rational calculations about costs and benefits, choosing, for example, between the investigation of detected crimes and prevention of crimes so that the marginal productivity of additional resources devoted to either activity is equal. Not only has this account received theoretical elaboration and extension, it has also been tested empirically. For a review, see Levitt & Miles (2007). The early empirical literature—that of the 1970s—was often done in alternating turns by those favorably disposed toward the rational‐choice‐theory account and those critical of that theory. In the late 1970s a panel of the National Academy of Sciences surveyed the empirical literature and reached the conclusion that “deterrence works”—that is, that the predictions of the rational‐choice‐theory explain observed patterns of criminal behavior.

These theoretical accounts of decisionmaking by criminals and other participants in the criminal justice system have had a profound influence on legal scholarship over the past 40 years and an equally important impact on criminal justice policy. For example, the United States Sentencing Commission, created by Congress in the early 1980s, was charged to rationalize federal criminal sentencing by, among other things, reducing the variability of sentences on the ground that indeterminate sentencing was not as deterring as determinate sentencing. And in the debates to explain the remarkable decline in crime that began in the early 1990s, some have argued that that decline is partly attributable to the deterrence‐based policies of the 1980s and 1990s, such as the remarkable increase in the frequency with which criminals have been incarcerated. Levitt (2004).

But at the same time as these rational‐choice‐theory‐based arguments have become so important, a significant and broad criticism of rational choice theory and of its application to issues of criminal law has been made. That criticism is called “behavioralism.” Importantly, behavioralism is not a theoretical criticism of rational choice theory. Rather, it is a criticism based almost entirely on experimental and other empirical studies that find the predictions of rational choice theory to be inaccurate. To illustrate with one example, rational choice theory predicts that in making decisions under uncertainty, decisionmakers accurately ascertain the probabilities of the various alternatives open to them, apply those probabilities to payoffs of the alternatives, and choose that alternative that maximizes their expected subjective utility. But psychologists and economists have discovered that most decisionmakers facing an uncertain set of options use far simpler heuristics to make a decision, such as choosing that alternative that is most “salient.”

The findings of behavioralism have become so thorough and well‐established as to make it difficult to begin any analysis of decisionmaking from the position of rational choice theory. This, of course, has profound implications for many areas of law and public policy, including criminal law. Many of the policy changes championed or implemented after the impact of Becker’s revolutionary insight stand or should stand on less firm foundations than had been previously thought to be the case. The central purpose of this chapter is to indicate how some of the central findings of the behavioral literature erode the rational‐choice‐theoretic foundations of criminal law and policy and to show how a recognition of the behavioral literature might lead to a rethinking of the legal and policy conclusions of the past 30 or so years.

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You can download the entire paper for free here.

The Legal and Procedural Situation of Segregation

Bennett Capers, has posted an intriguing article, “Policing, Race, and Place” (forthcoming 44 Harv. CR-CL L. Rev. (2008)) on SSRN.  Here’s the abstract.

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Most Americans live in neighborhoods and communities segregated along race lines, and take this segregation for granted. To the extent they view their communities as racially segregated at all, they assume that this segregation is the largely the result of individual choice or socio-economic status, or perhaps a remnant of de jure segregation. The ambition of this Article is to draw attention to a component of segregation that has been largely ignored: the significant role that criminal law and procedure have played, and continue to play, in maintaining racialized spaces.

The Situation of Criminality – Abstract

Craig Haney posted a terrific situationist article, “Evolving Standards of Decency: Advancing the Nature and Logic of Capital Mitigation” (forthcoming in Hofstra Law Review, Vol. 36, No. 3, 2008) on SSRN. Here’s the abstract.

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The article builds on converging lines of research in the social sciences that have constructed a framework which conceptualizes the roots of violent behavior as extending beyond the personality or character structure of those people who perform it, connecting it historically to the brutalizing experiences they have commonly shared as well as the immediately precipitating situations in which their violence transpires.

The piece explains how to translate these insights into the collection and presentation of mitigation evidence in capital cases. It describes in detail the various factors in a person’s social and physical environment that are demonstrably likely to lead to criminal behavior, and how, in the context of an adversary system, these general findings can be persuasively woven into the mitigation case to be made on behalf of a particular client to an audience whose pre-disposition is to be unreceptive if not outright hostile.

A capital defense team that is performing effectively in accordance with the ABA’s Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases reprinted in 31 Hofstra L. Rev. 913 (2003) and the Supplementary Guidelines that are the subject of this issue will engage in a continuous iterative process between the assembly of a psychologically-oriented social history in which key developmental stages and relevant family and social experiences are analyzed together and the construction of a mitigating counter-narrative that incorporates a capital defendant’s social history and immediate life circumstances. If properly conceived and supported this narrative will provide a more satisfying account than the one the prosecution is certain to offer – an account confined to the defendant’s crime, which is presented as entirely the product of his free autonomous choice-making and constitutes both the full measure of the defendant’s life and the primary justification for ending it.

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Haney’s article appears in the Hofstra Law Review symposium issue on the Supplementary Guidelines for the Mitigation Function of Defense Teams in Death Penalty cases. The complete text of the issue, which also contains the Guidelines themselves, is available online here.

What Counts as Rape?

From NPR’s Day to Day story, If Your Neighbor Poses as Your Husband, Is it Rape?:

Massachusetts is the latest state to consider putting a new crime on the books: rape by fraud. Currently, a sex act only qualifies as rape if physical force is used. We talk to a woman who was tricked into having sex with her boyfriend’s brother, who pretended to be her boyfriend — and unable to convict him of rape because of this limited definition.

Under the new law, such forms of deception would be a crime. Some say the law goes too far, however, and could criminalize lies like, “Really, I’m divorced!”

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To listen to the story, click here, and to read a brief Salon article on the topic, click here. For a related Situationist post, see “Unrecognized Injustice — The Situation of Rape.”