Hidden Bias and Fair Trials

You may serve on a jury one day, and if you do, your thought process will mean a lot to the people involved.

Those people, and the system as a whole, will rely on you to give them a fair trial.

To that end, one court has created a video to help potential jurors understand their hidden biases. These are the mental shortcuts we use to make decisions about people or things. We all have them, and they help us make sense of the world around us. We all have them because we’re all human, and we often don’t even realize it.

The thing is, they’re often wrong. For example, one study looked at scientists who were hiring a laboratory manager. The experiment was that all of them were given the exact same resume to review except some copies bore a man’s name and others a woman’s name. Well, guess what? Both male and female scientists scored the male candidate as more competent and worthy of the job even though the resumes were exactly the same. Without realizing it, these scientists harbored a hidden bias about gender, and it clouded their judgment.

The video is shown during jury selection in the U.S. District Court for the Western District of Washington. It features three people: the top federal prosecutor for the district, a senior trial judge there, and a prominent defense lawyer. The lawyer explains the value of talking about hidden bias this way:

“You have two choices: either talk about it or don’t talk about it, and haven’t we seen what happens when we don’t talk about it?”

The upside is that by taking the time to really think about things, and by taking in more information, we all make better decisions.

The Modern Public Square

This week brought us another unanimous U.S. Supreme Court case that’s arguably more important because it concerned the First Amendment.

The issue was a North Carolina law that made it a felony for registered sex offenders to use any social-networking site that lets minors join. So to be clear, that’s any social-media site, period, that lets minors join. That meant Facebook, LinkedIn, Twitter, or pretty much any other social-media site. The law was even broad enough to include websites like Amazon, WebMD, and the Washington Post. So you almost couldn’t use the Internet.

The defendant was one of more than 1,000 people who’ve been prosecuted under the law. In 2002, when he was 21 years old, he had sex with a 13-year-old girl, and he was charged with it. He pleaded guilty to it and registered as a sex offender. Then the law passed in 2008.

In 2010, he happened to get a traffic ticket dismissed in court, whereupon he logged on to Facebook and posted this to his timeline: “Man God is Good! How about I got so much favor they dismissed the ticket before court even started? No fine, no court cost, no nothing spent … Praise be to GOD, WOW! Thanks JESUS!”

He was indicted for that.

He moved to dismiss on the ground that the law violated the First Amendment, but the trial court denied it. He was convicted at trial and given a suspended prison sentence.

On appeal, the state courts duked it out. The court of appeals agreed with the guy, finding that the law violated the First Amendment. But the state supreme court reversed, finding the law “constitutional in all respects.”

Finally, the federal high court unanimously struck down the law because it plainly applied to websites like Facebook, LinkedIn, and Twitter among others. Facebook itself had 1.79 billion active users—or three times the population of North America.

The Court called these sites “integral to the fabric of our modern society and culture.” They had become our main sources for sharing current events, participating in the public square, and exploring human thought and knowledge. To foreclose access to them was to foreclose the legitimate exercise of First-Amendment rights.

Yes, a state could pass specific, narrowly-tailored laws that regulate the type of conduct that portends crime, like contacting a minor or using a website to gather information about one.

But it couldn’t just cut people off from the public square.

A Model Penal Code for the 21st Century

Charging decisions, which we wrote about last week, matter for many reasons. They drive plea bargains, and they affect sentencing. You file a felony, for example, so that the guy will plead to a misdemeanor without giving you much trouble. It happens all the time.

Bad charging decisions, though, don’t just cause wrongful convictions or unjust sentences.

They cause other consequences that continue to torment you after you’ve served your sentence. Your actual sentence may include your jail or prison time, the fines you must pay, or the terms of probation you must follow. You did the crime so you should do the time and pay the fine, right? Okay, but then even after you do, you still may not be able to cast a vote, land a job, rent a home, hold a license, or get a loan. These are the so-called collateral consequences of a conviction.

But the future may be brighter.

Last week, the American Law Institute approved major changes to the Model Penal Code to address these consequences. The ALI is the leading scholarly body that aims to clarify, modernize, and otherwise improve American law. The Model Penal Code is its seminal work in the area of criminal law. It doesn’t have the force of law by itself, but it’s influential. Most states have used it in passing their own laws, and courts cite to it often.

The new provisions would require you to prove, by clear and convincing evidence, that a collateral consequence of your conviction imposes a heavy burden on your ability to rejoin society and that public safety doesn’t need you to suffer it.

If you do that then a court could relieve you from that burden. A court could even issue a certificate of rehabilitation that shields employers, landlords, or others who give you a second chance from civil liability.

Already, state legislatures have been proposing and passing laws to give people a fair shake to prove themselves before dismissing them based on the past.

Hopefully, that momentum keeps building. We should consider what it means to have a record, anyway, when most people either have one, know someone close to them who does, or would have one but for the grace of God. And we should consider how we judge people altogether in a world in which our every action can leave a permanent trace.

The twenty-first century may demand it.

The New Justice of the U.S. Supreme Court

Now that Neil Gorsuch has been sworn in, we’ll begin to find out how he wields the law as a member of the highest court in the land.

Some say he’s a natural successor to the Justice whose seat he fills, Antonin Scalia. Here is a profile of Mr. Gorsuch that compares his views to those of Mr. Scalia on matters of criminal law, interstate commerce, and more.

Justice Scalia’s legacy may be complicated, but he defended the rights of the accused in important ways. He championed the right of confrontation, for example. It’s in the Sixth Amendment, and it means that if you’re charged with a crime, your accusers must take the witness stand, testify under penalty of perjury, and face cross-examination in open court. They can’t hide behind hearsay and innuendo. Scalia also championed your right to a trial by jury—that dwindling bastion of freedom and democracy—and he looked after the Fourth Amendment in an age of new technologies.

We hope Justice Gorsuch hews to that heritage and builds on it. Justice Scalia, for example, didn’t care much for the Miranda rule, but we may come to appreciate it more in this century than we did in the last. We may feel differently about the meaning of due process when we see that governments can exercise total dominion over their citizens. We may value legal limits on their power more as we realize that no other limits exist.

To that end, some point optimistically to Gorsuch’s views on overcriminalization, the rule of mens rea, and the rule of lenity.

Others are less sanguine about him in general.

But left, right, or center, most would agree, in the end, with this comment: “We think that all judges should look to the text and history of the Constitution. But [we hope] he will follow all parts of the Constitution, in particular those parts that were added in the 19th and 20th centuries that made our Constitution more equal, more just, more free and pushed us further down an arc of progress.”

Saving Basic Civil Justice in America

As you may know, the new administration’s proposed budget aims to eliminate all federal funding for the Legal Services Corporation. As in, no funding at all. Zero. Zilch. Nothing.

Why is that a problem?

The LSC is the single-largest funder of civil legal aid for low-income Americans. In other words, if you’re poor and accused of a crime, you’d have access to a lawyer because we fund a public-defense system for that (albeit poorly); but in civil matters, you’d have nothing to help you deal with a legal problem if it weren’t for the LSC and other agencies like it.

Congress created the LSC in 1974 through a bipartisan vote. At the time, President Nixon said it would address “small claims in the Nation’s eye [that] loom large in the hearts and lives of poor Americans.”

Today, the agency funds over 130 nonprofits that handle more than 750,000 cases each year for low-income clients. Overall, it helps nearly two million people per year for less than $1.20 per taxpayer. It keeps families in their homes, finds affordable housing for veterans, protects seniors from predatory scams, and provides lifelines to victims of natural disasters.

Who qualifies for help?

Households who live at or below 125% of the federal poverty line. That’s about $15,000 for an individual or $30,000 for a family of four.

Already, the legal profession is mobilizing in defense. The American Bar Association immediately issued a statement condemning the plan. Even before the administration unveiled it, the leaders of 157 major law firms wrote to explain why the LSC represented the kind of public-private partnership the government should encourage, not eliminate. That was followed last week by a letter to Congress from the deans of 166 law schools, whose clinical programs work with nonprofits that rely on the LSC. And that was followed this week by a letter to Congress from 185 of corporate America’s chief legal officers. For the latest summary of these developments, see here.

Please lend your voice, too. The ABA has set up an easy way to send a message to your members of Congress, and you can find the campaign on Facebook too. Please call on them to fund the LSC responsibly. The ABA will print these messages and hand-deliver them to each member of Congress between April 25 and 27.

Because there’s no justice without access.

The Future of Face-Recognition Technology

Face it: the future is already here. And by default, your face is ever more likely to be found in a law-enforcement database. It’s as easy as getting a driver’s license.

The facts are that face recognition is neither new nor rare, and more than one out of two American adults have already been loaded into a local, state, or federal database.

That’s according to this report by the Center on Privacy and Technology at the Georgetown University Law Center. Read it to learn more about this technology; how it’s being used; and what the future holds. For three shorter stories about it, see here, here, and here.

What did the researchers do? They sent public-records requests to more than one hundred law-enforcement agencies across the country. They interviewed representatives from dozens of those agencies as well as from the technology companies they contract with. They made two site visits to agencies that use advanced face-recognition systems. And they surveyed the state of the law (or lack thereof) in all fifty states.

What are their takeaways? Here are four.

  1. The technology has value, and its use is inevitable. The report doesn’t aim to stop it.
  2. Its use is spreading rapidly and secretly without limits, standards, or public oversight.
  3. The total network of federal, state, and local databases includes over 117 million American adults. That’s more than half the country.
  4. We’re moving toward a world of continuous, real-time face recognition through public surveillance cameras.

What are their recommendations? Here are three.

  1. Congress and state legislatures should pass commonsense laws to regulate face recognition, and police should follow them before they run a search.
    • For example, to search a database of driver’s license or state identification photos, police should have a warrant backed by probable cause.
    • To search a database of mug shots, they should have a reasonable suspicion of criminal conduct. Periodically, they should scrub the database of people who were arrested but not charged and convicted. Michigan, for one, already requires that.
    • They should not use real-time, continuous surveillance except for public emergencies.
    • They should not track people based on politics, religion, or other protected status.
  2. The federal government should develop tests and best practices to improve the technology’s accuracy. For example, in the latest available test of the FBI’s database, the system included the right person on a list of fifty potential matches 86% of the time. That means that one out of seven searches returned a list of fifty innocent look-alikes, and the other six included 49 of them.
  3. All governments should report their use of the technology, audit such use regularly, and respect civil rights and liberties.

You Won’t Ever Die From Boredom In a Police Raid

That’s the nice thing about it.

But the same can’t be said for being rash or reckless, which is how some police departments are prone to execute their warrants. They may use SWAT teams as a default option for every search or arrest, and they may go in like gangbusters if they do.

When they do, everyone makes more mistakes, and everyone pays a price. They may hit the wrong address and terrorize an innocent family. Or they may hit the right address but kill someone for no good reason.

Here’s an alternative then.

It comes from this essay by a veteran police officer who served sixteen years on a SWAT team. You could say he’s served a lot of warrants.

His very first search was all smash and grab, and it gave him a rush.

But over time, he says, his team gravitated toward a different default: surround the place and call people out. They realized it worked better. Everyone made better decisions.

What are the downsides? Fewer adrenaline rushes. Fewer cool stories for friends and family. More evidence or contraband flushed down a toilet.

The upsides? Lower risks of harm for everyone. More compliance from people on the receiving end. More people on all sides going home to their families at the end of the day.

Police raids still have their place, the author says. Sometimes, it just isn’t safe for cops to stand around and wait. Or they may be hitting multiple locations at the same time. Or they may lose valuable evidence if they don’t go in fast.

Other times, though, they go in hard and fast to save money on overtime pay or to avoid rush hour later that day, and those aren’t good reasons.

So here’s to slower, safer, smarter law enforcement. May boredom reign.

A Big Anniversary for the Bill of Rights

Thursday will mark 225 years to the day.

On December 15, 1791, the Commonwealth of Virginia became the eleventh state to ratify the first ten amendments to the U.S. Constitution. That meant that three-fourths of state legislatures had approved them, which meant the Bill of Rights was born.

To commemorate the occasion, here’s a great essay about one of its architects, James Madison. It talks about how Madison opposed a bill of rights at first because he feared that it would limit people’s essential rights to just those listed. He thought a list wasn’t necessary in a new system in which the people were sovereign and the government derived its power from their consent. He also believed that the real buffer against a tyranny of the majority lay in the Constitution’s structural checks and balances: federalism, bicameralism, and the separation of powers. Eventually, though, Madison came around, and at the first Congress of the United States, he introduced the amendments that became the Bill of Rights.

The ten amendments enshrine many of our most important rights and freedoms. They declare that, in America, you’re meant to be free in the following ways, among others.

  • You’re free to say, think, and believe what you want to say, think, or believe.
  • You’re free to print, publish, and broadcast information even if the government opposes it.
  • You’re free to associate with others, band together peaceably, and petition the government to redress your grievances.
  • The government can’t take your life, liberty, or property if it doesn’t follow fair and objective rules.
  • It can’t search or seize you, your home, or your property unreasonably or without following the rules.
  • It can’t take your property and put it to public use without paying you fairly for it.
  • It can’t punish you without telling you why and giving you a meaningful chance to defend yourself.
  • It can’t punish you excessively or inhumanely, no matter what.

For the full text of the U.S. Bill of Rights, see here. 

 

 

 

The Circle of Life

Earlier this month, the California Court of Appeal published an interesting DUI case that we may talk about next week.

This week, I want to talk about something else.

My wife and I welcomed a baby boy into the world on Saturday. He’s our first. He spent his first three days in the Neonatal Intensive Care Unit, where he gave us a couple good scares. But he’s emerged with a clean bill of health, and we got to take him home last night.

What does this have to do with law and justice?

Only that, like most parents, I feel the weight of responsibility for his new life, and I’m more acutely aware than ever that my generation—or rather, our generations—are responsible for what becomes of this world.

We’re responsible for what becomes of us as a people and planet, and there’s no silver bullet. No magic potion. No easy fix. Anyone who tells you different is lying to you.

As man’s relationship to government evolves in this century, it’s up to us to be the adults in the room. It’s up to us to defend our common rights, freedoms, and dignity. It’s up to us to create and preserve a world in which our children can be safe, healthy, and happy.

With that, may God bless the United States of America, and may God bless my little boy every day of his life.

Do You Care About Justice?

Speaking of lies, there’s no shortage of them in an election year, but if you’re looking for a constructive way to sound off to the presidential candidates, here’s one.

The National Association of Criminal Defense Lawyers has sent each of the four candidates—Clinton, Trump, Johnson, and Stein—a questionnaire with fifteen questions about their views on the criminal-justice system.

The NACDL has created a website for the public to receive the candidates’ answers and pose their own questions. The website lists all fifteen questions, invites you to say which three are most important to you, and allows you to submit your own question for the candidates.

There’s also a short but compelling video on the Sixth Amendment and why it matters so much. It features interviews with a prosecutor, a retired police detective, a defense attorney, and former criminal defendants.

The website is called I Care About Justice, and you can find it at www.icareaboutjustice.org.

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