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 Law of Fair Shakes

Whether you’re an employer or an employee, take note.

Earlier this month, California enacted the Fair Chance Act.

This means that, beginning next year, many employers can no longer ask about or look into criminal convictions until they’ve decided a person is right for the job. That means they can’t ask about convictions anymore on a job application. It also means they can’t run a background check until they’ve made a conditional offer of employment.

Also, once employers make a conditional offer and run someone’s record, they can’t deny the job based on a conviction unless they first analyze the relationship between the job and conviction. What kind of job is it, after all? Does it have anything to do with the conviction? How long ago was that, anyway? There must be a “direct and adverse” relationship between the two to justify the decision.

Employers don’t have to share their analysis with applicants, but they must advise of their decision in writing. When they do, they must identify the relevant conviction, attach a copy of the report they ran on the person, and explain that he or she has at least five business days to show why the report isn’t accurate or why they should still get the job based on rehabilitation or mitigating circumstances. Employers must consider any evidence they submit. If they still decide to deny the job, they must let the person know in writing, refer him or her to any existing procedure they have for challenging it, and give them notice of the right to file a complaint with the Department of Fair Employment and Housing.

What hasn’t changed? Employers still can’t consider arrests that didn’t lead to conviction, unless charges are still pending or the arrest was for certain drug or sex offenses and the job is in a healthcare facility that requires access to drugs or patients. Nor can employers consider convictions that have been sealed, dismissed, or otherwise expunged.

The law will apply to employers with five or more employees. It exempts those who must conduct background checks by law. For more on the new law and its passage, see here and here. For the text itself, see here.

Two Tears

Two true stories, that is, of people on a sex-offender registry.

The first. Today, she’s a 34-year-old mother of two great kids. Back then, she was a teenager herself when she slept with a boy on the night of her 19th birthday party. The boy was mature enough to pursue her but, as it happened, he was 14. His mom reported her to the police the next day, and they called her in to talk. They told her if she were honest, she wouldn’t go to jail, but it’s funny how that works, because after they filed the case, she was told that she could serve 20 to 25 years if she went to trial and lost. Or she could plead guilty and serve minimal time, but she would have to register as a sex offender.

Today, she’s a good person and a mother of two great kids, but her conviction looks like child molestation on paper, and she must register as a sex offender for life. Recently, she worked to become a staff writer for a local newspaper, but then someone complained about it, and the paper let her go. No one bothered with the details. You should watch her video.

The second. He was a junior in college when he went to Miami for spring break. He met a girl there at an 18-and-over club, and they ended up hooking up. Seven months later, he got a call from law enforcement in Florida. As it happened, the girl had used a fake ID to get into the club. She was actually 15 at the time, and her mom filed a complaint when she found out. So they asked the young man to come to Miami to talk, and he agreed. He told them everything was consensual, and he assumed she was 18 or older since she was in the club. They took his statement, thanked him for his cooperation, and arrested him on the spot.

Five years later, he was homeless because he couldn’t find a job or housing given his lifetime sex-offender registration. Two years ago, almost ten years after his conviction, he failed to register his whereabouts and received three years in prison. You should read his story, too.

 

Lifetime Sex-Offender Registration for Kids

Do you think sex-offender registration is punishment?

What if it’s for life?

What if it’s for a 12-year-old boy?

Last week, the California Court of Appeal ruled that it’s not punishment to call a kid a sex offender for life because of something he did when he was twelve years old.

According to the court, the boy’s early years were marked by extreme neglect and abuse. He was taken from his mother at age five and shunted from one foster home to another until he was adopted.

Then, when he was twelve, he was processed in juvenile court for pushing a five-year-old boy to the ground and committing a lewd act on him. He was put on probation and ordered to enroll in sex-offender treatment.

After that, he was found to have violated his probation three times: once for hanging out with other minors without adult supervision; once for touching his adoptive sister’s breast, after which he was sent to a group home; and once more for grabbing a boy’s butt there.

At that point, the court put him in juvie and ordered him to register as a sex offender. In California, that meant he would have to register as one for the rest of his life. Wherever he moved, he would have to register with the city police or the county sheriff. If he went to college, he would have to register there, too. Even if he never moved, he would have to register again every year within five days of his birthday.

He appealed on the ground that lifetime registration for kids was cruel and unusual punishment. He also argued that it hindered public safety rather than helped it because it hurt a kid’s chance to live a normal life. Even the juvenile court had acknowledged that it “mess[ed] up the rest of their lives by hanging this tag on them.” Of course, the same could be said for adults, as we’ve explained before.

But the appellate court held that it wasn’t even punishment, let alone cruel and unusual punishment. The court relied on prior cases by the California Supreme Court and the U.S. Supreme Court to that effect. Although those cases didn’t address the question of kids specifically, this court wasn’t going to be the first to carve out an exception for them.

[Update: Beginning January 1, 2021, California will eliminate lifetime registration for many offenses, as we explain here.]

No Correlation Between Drug War and Use

According to an independent, well-regarded think tank, there is statistically no reason to think that we can reduce drug abuse by locking more people up.

The nonprofit Pew Charitable Trusts spelled it out in a letter this summer to a federal commission that’s looking at ways to combat the widespread problem of opioid abuse.

Its study, which drew on data from the federal government and all fifty states, found no statistically-significant relationship between a state’s rate of incarceration and its rate of drug use, drug arrests, or overdose deaths.

Put another way, locking up more people didn’t correlate with lower rates of drug use, drug arrests, or overdose deaths. These findings held even when the study controlled for race, income, unemployment, and education. The arrest and incarceration rates came from state corrections departments and the U.S. Justice Department. The drug-usage rates came from an annual, national survey funded by the U.S. Department of Health and Human Services. The overdose-death rates came from the Centers for Disease Control and Prevention. The demographic data came from the U.S. Census Bureau, and the income and unemployment data came from the U.S. Labor Department.

The more effective response to opioid abuse, says the letter, is a combination of law enforcement to curb drug trafficking; sentencing alternatives to divert nonviolent people from costly imprisonment; treatment to reduce addiction; and prevention efforts like prescription-drug monitoring programs, which we wrote about last week.

Our Federal Prisons Are Fueled By Drugs

That’s the takeaway from this report by the federal courts and U.S. Sentencing Commission.

To summarize, there are almost 200,000 people in federal prison today, and almost half of them (or 48%) are there for drugs. Almost all of them (93%) are men, and the vast majority are young, minority men. The breakdown is 35% Hispanic, 35% black, and 27% white.

Here are the top five types of cases:

  1. Drugs (48%)
  2. Guns (19%)
  3. Immigration (8%)
  4. Child pornography and sex offenses (7%)
  5. Major frauds (5.8%)

For fraud cases, the median dollar loss was $800,000, in case you were wondering.

For the drug cases, here’s the breakdown among drugs:

  1. Methamphetamine (32.8%)
  2. Powder cocaine (24.2%)
  3. Crack cocaine (20.9%)
  4. Heroin (9.5%)
  5. Marijuana (8.4%)

Finally, the report shows how often people are sentenced below, above, or within the range that’s recommended by the federal sentencing guidelines. Here’s a crash course on the guidelines if you want to know how they work.

  • Half were sentenced within the guideline range (50.4%)
  • A quarter were sentenced below the range with the government’s support (24.7%)
  • One-fifth were sentenced below the range without the government’s support (21%)
  • Relatively few were sentenced above the guideline range (3.9%)

The Restoration of Rights Project

Have you ever been arrested? Do you have a prior conviction?

Do you wonder whether you can clean up your record and how that affects you, if at all?

Start here. It’s called the Restoration of Rights Project, and it looks at the law in every state for restoring your rights and status after an arrest or conviction. It covers federal law, too.

For each state, the Project compiles answers to these questions:

  1. Whether and how you can seal, expunge, or dismiss your arrest or conviction.
  2. Whether and how you can restore your civil rights, like the right to vote.
  3. Whether and how your state’s laws affect your chance of landing a job or license, losing one, or getting it back.
  4. Whether your state has a regular process to apply for a pardon and how often it grants one.
  5. Whether and how you can stop having to register as a sex offender.

It’s a great resource not just for lawyers and the courts but for, in its words, “the millions of Americans with a criminal record who are seeking to put their past behind them.”

White-Collar to Blue-Collar in One Day

Last week, the U.S. Supreme Court issued two notable decisions on the same day.

One was a civil white-collar case, the other a criminal drug-trafficking case, and in both cases, the Court reversed the lower-court ruling on appeal.

In the civil case, the Court imposed a five-year statute of limitations on SEC cases that seek to disgorge profits. That’s the same period that applies in cases to enforce a fine, penalty, or forfeiture. Although disgorgement of profits is traditionally a form of restitution that’s measured by a defendant’s wrongful gain, the Court ruled that it’s a penalty in SEC cases for a couple reasons. First, the agency uses it to deter and punish defendants as much as to compensate victims. Sometimes, the money goes to Uncle Sam, and sometimes, the only victim is the public at large. Second, the agency often disgorges more than defendants have gained, leaving them worse off than before they broke the law. That may be the point, but that makes it a penalty.

In a footnote, the Court even seemed to call into question whether courts could order disgorgement at all. That’s something they’ve been doing since the 1970s, so it’s a big deal. For more in-depth analysis of this decision, see here.

In the criminal case, the Court reined in the government’s forfeiture power. Forfeiture allows the government to seize money or property that’s derived from a crime. But the law limits this to what someone actually and personally receives or obtains. That means you can’t be responsible for amounts obtained by someone else. So the hypothetical college student who gets $500 per month to drop off a few packages isn’t on the hook for the whole multimillion-dollar drug enterprise.

Here, two brothers worked in a hardware store together. One of them owned the store, and the other was a salaried employee. The two were charged with selling large amounts of a product they knew or had reason to know was being used to make meth. In three years, the store grossed about $400,000 from selling the stuff and netted $270,000.

The government wanted the $270,000 in profits. The owner agreed to forfeit $200,000 of it when he pleaded guilty, but the employee went to trial. He was acquitted of three counts, convicted of eleven, and sentenced to sixty months in prison. Then the government went after him for the remaining $70,000.

Although the government agreed that the employee had no ownership interest in the store and didn’t personally benefit from the illicit sales, it argued that, in a conspiracy, everyone is responsible for the full proceeds of the conspiracy. And it won that argument on appeal.

But the Supreme Court rejected that and reversed.

 

Judge Not, Lest We Be Judged

If you’re still not sold on the power of redemption, I may not be able to sway you.

But consider this guy. He committed a carjacking at 16 and spent eight years in prison for it. Today, at 35, he has a wife, two bouncy sons, and now, a law degree from Yale. He just graduated last month. I guess it’s good we didn’t throw away the key.

His story reminded me of three quotes I saw recently. They each spoke to why we should treat people humanely in our justice system. I saw them in the email signature of a defense lawyer in Texas, and while he and I have never met, I think they say something positive about him, too. If you need a lawyer in his neck of the woods, look him up.

I especially liked how the quotes were attributed to three very different people. An itinerant lawyer and activist. An influential computer scientist. An acclaimed writer and novelist.

Three different walks of life, but they seemed to agree on some things.

  1. Freedom is not worth having if it doesn’t include the freedom to make mistakes.”
  2. “Good judgment comes from experience, and experience comes from bad judgment.”
  3. “Sometimes you make choices in life and sometimes the choices make you.”

Great quotes, all. You live and breathe long enough, you know them to be true.

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.

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