They May Be Intelligent, But Are They Wise?

Speaking of fair shakes, here is a wise word of caution about the emerging, expanding use of computer programs to evaluate people in the justice system, whether at bail hearings, sentencings, or elsewhere.

The author is a former software engineer at Facebook who’s now studying law at Harvard. Her point isn’t that we shouldn’t use or consult these programs, but we should know what we’re getting into and proceed with caution. It’s troubling, for example, if we use programs that no one in the field fully understands—not judges, not lawyers, not probation—because the manufacturer won’t disclose a proprietary algorithm.

She says we turn to computers in part to control for our own biases, “[b]ut shifting the … responsibility to a computer doesn’t necessarily eliminate bias; it delegates and often compounds it.” That’s because these programs mimic the data we use to train them, so even the ones that accurately reflect our world will necessarily reflect our biases. Plus, they work on a feedback loop, so if they’re not constantly retrained, they lean in toward those biases and drift even further from reality and fairness. So they don’t just parrot our own biases; they amplify them. She saw this phenomenon time and again as a software engineer.

She agrees that algorithms can work for good. They’ve reportedly helped New Jersey reduce its pretrial jail population, for example.

But let’s proceed with caution, she says:

“Computers may be intelligent, but they are not wise. Everything they know, we taught them, and we taught them our biases. They are not going to un-learn them without transparency and corrective action by humans.”

California’s New Sex-Offender Registry

Big news out of California last week.

Beginning in 2021, the state will replace its current sex-offender registry, which requires everyone to register for life, with a three-tiered system that distinguishes among low-risk, medium-risk, and high-risk offenders.

People in the first tier will be able to petition to end their registration after ten years. You’re in this tier if you were convicted of a misdemeanor or a non-violent, non-serious felony.

Those in the second tier will be able to petition after twenty years. This applies if you were convicted of a serious or violent offense but do not pose a high risk of reoffending.

Those in the third tier will continue to have to register for life. This applies to high-risk offenders, repeat offenders, and sexually-violent offenders.

For juveniles, there are two tiers. Those in the first tier can petition for removal after five years. Those in the second tier can do so after ten years.

In all cases, the district attorney can oppose your petition, and the court can deny it. If it’s denied, you can petition again, but you’ll have to wait at least one year and as many as five.

Almost everyone supported the new law, including law enforcement, which argued the current registry was so large that cops couldn’t focus effectively on the high-risk offenders.

For local and national press coverage, see here, here, and here.

For the text of the new law, see here.

Impaneling a Jury of Your Peers

Do you have a civil or criminal case that’s heading to trial?

Starting next year, California will have new rules for picking a jury in both types of cases.

First, the rules for criminal cases. This is Assembly Bill 1541. It brings jury selection in criminal trials more in line with the procedure for civil trials.

The process will still begin like before. The court will question the jury pool to see if anyone knows the parties or witnesses or otherwise holds a bias that will keep them from being fair and impartial. The court may also agree to ask additional questions that the lawyers have submitted in advance. Then the lawyers will get their crack at it, though the court can set reasonable limits on their questions.

The new emphasis, however, will be on giving lawyers more time and room to question the pool and follow up on the answers. The court can still set limits, but they can’t be arbitrary, inflexible, or unreasonable. In setting those limits, moreover, the court must consider the complexity of the case and even the amount of time the lawyers want. It should allow them to follow up on the court’s questions as well as their own, and it shouldn’t screen their questions beforehand unless they’re really trying to indoctrinate the jury.

Next, the rules for civil cases. This is Senate Bill 658. It makes fewer changes to existing procedure but also puts greater emphasis on letting the lawyers conduct voir dire.

How will the courts apply these rules in practice?

That’s where the rubber meets the road.

Two Sides of the Same Coin

It’s not always easy to weigh the scales of justice.

Sometimes, like in the two stories from last week, the system treats people too harshly, and it ruins their lives.

Other times, though, someone’s unfairly blamed for not being harsh enough.

That’s the premise of this piece by a former chief criminal judge who was vilified for setting someone free without bail who then committed another crime.

But he made the best decision he could at the time. The guy was charged with failing to register as a sex offender. It’s a fairly common charge, and the guy was there for arraignment along with some thirty people.

It was a typical busy day in court, and the judge had to make a bunch of good decisions quickly. The prosecutor’s office called for a high bail amount that could have kept the guy in jail pending trial. But they always did that in these types of cases.

Under the law, the guy was presumed innocent in this case, and he was supposed to be released unless he was a flight risk or danger to the community. He didn’t seem to be a flight risk because he’d come to court on his own after being summonsed by mail. And he didn’t seem like a danger to the community, either. He wasn’t charged with a violent crime, and though he’d been convicted of forcible rape in 1993, that was over twenty years ago.

The judge heard from both sides and then followed the law, releasing him.

A week later, the guy was arrested on suspicion of rape and kidnapping. He ended up pleading guilty to lesser charges in that case in exchange for a seven-year sentence. But in the meantime, some hell broke loose.

The judge was called incompetent; he was called pro-rape; he was attacked on local talk radio and even the national news.

Here is how he dealt with it.

 

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.

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.

Back to Basics, Again

Speaking of the U.S. Supreme Court, we shouldn’t have to rely on the country’s highest court to decide some questions correctly. But we do.

This week, the Court issued a friendly reminder about the presumption of innocence.

If you’re convicted of a crime, but your conviction is overturned on appeal, and there won’t be a retrial, the government has to return any money that you paid toward fines, fees, or restitution because you’re presumed innocent again. You’re presumed innocent until you’re proven guilty beyond a reasonable doubt in a fair trial where the verdict holds up. Until then, the government can’t make you prove your innocence to get your money back.

Here’s what happened. In two separate cases, a man and woman were convicted at trial, and they were ordered to pay fines, fees, and restitution as a result. Then both had their convictions reversed on appeal. One was retried but acquitted. The other wasn’t retried because the state dropped the case.

With the charges dismissed, the defendants asked for their money back, but they lost in the state courts because a new state law required them to sue for their money and prove their innocence by clear and convincing evidence.

But that can’t be right, and it wasn’t. Without a conviction, the state had no right to their money, and under the Due Process Clause of the U.S. Constitution, it couldn’t shift the burden of proof to them to prove their innocence.

Good for them that the court of last resort got it right.

But that court hears fewer than two percent of all potential cases each year. And it wouldn’t have heard these cases, either, if it weren’t for a pro bono clinic at the UCLA School of Law.

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.

Take the Money and Run

Kudos to the California Court of Appeal for enforcing due process and the rule of law.

Earlier this month, the Court took another stand on the law of asset forfeiture by siding with people who had sued to get their stuff back.

In three separate cases, the Court ordered the trial court to reinstate lawsuits brought by eight people from whom local police had taken a total of three cars and $28,257 in cash.

In each case, after police seized the property, they didn’t refer the matter to the district attorney’s office like they were supposed to. No one from a prosecutor’s office reviewed the cases beforehand and signed off on them.

Instead, police just issued forfeiture notices themselves and left it to people to file a claim.

But you can’t do that. The law specifically authorizes only a county’s district attorney or the state’s attorney general to file a forfeiture case in court or, for property worth $25,000 or less, to issue a notice of administrative forfeiture like the police did. For more background on California’s forfeiture laws, see here.

None of the people filed claims at first, but eventually, they lawyered up and sued.

They lost in the trial court after the government argued that they didn’t file administrative claims before suing in court and that they waited too long to sue when they did.

But they won on appeal. The Court ruled that the government failed to comply with the forfeiture statutes, so the forfeitures were invalid to begin with, and the state had no right to their property. The Court had made this point three years ago in a prior opinion, and apparently, it meant what it said.

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