A new study [abstract] (via Kottke) suggests a link between daily childhood candy eating and crime. Apparently, 69 percent of people* (in a studied group) who committed crime by age 34 were daily candy eaters.
What kind of parent gives their kids candy daily?
-Michael
*As Kottke notes, some news agencies are reporting that 69 percent of daily candy eaters became criminals. That, of course, is an entirely different thing.
A recent article in the Washington Post (via Volokh), discusses a Bush administration policy that requires defendants to waive their rights to post-conviction DNA testing in guilty pleas. Under the Innocence Protection Act, defendants are permitted, under certain circumstances, to request post-conviction DNA testing of evidence related to their accused crime if they assert they are actually innocent. In some U.S. Attorney offices, however, defendants who plead guilty are required to waive these rights, ostensibly to keep them from filing frivolous motions to harass prosecutors. The Obama administration is reviewing this policy and pondering the end of the waiver practice.
I think that rescinding the policy would be a great idea. However, in reviewing the actual statute, I’m not so sure that these waivers are permissible as it is. Under the statute, defendants are permitted to ask for DNA testing so long as they have not “knowingly and voluntarily waive[d] the right to request DNA testing of that evidence in a court proceeding.” I’m not sure waivers are “voluntary” if they are required in order to receive the benefits of a guilty plea. Black’s Law Dictionary defines “voluntary” as “unconstrained by interference; not impelled by outside influence; without valuable consideration; gratuitous.” It seems to me that in this situation a defendant’s waiver is certainly not without outside influence–he waives only because of the threat of trial. Admittedly, some might argue that no defendant is required to plead guilty. But a defendant who admits his guilt with regard to a particular crime should not be forced to enter the crapshoot that is the jury trial.
Putting aside the wording of the statute, we need to recognize the fallibility of the guilty plea. People (obviously) make these pleas for a number of strategic reasons unrelated to their guilt or innocence. Discouraging post-conviction DNA testing after guilty pleas essentially concedes that (1) we have innocent people in jail; (2) we have proof that could get them out; and (3) we don’t care. The Washington Post article quotes the acting U.S. Attorney back in my old hometown of Macon, who justifies the policy by observing that “[i]t saves [the government] a lot of spurious litigation down the pike.” Eliminating post-conviction relief via habeas corpus would also save a lot of spurious litigation, but we recognize the important purpose it serves: every once in a while someone should legitimately be released. Why should IPA testing be any different?
-Michael
Update: Susan asks: “I do remember from bar study that case about the defendant claiming it was coercion when the prosecutor offered him a choice of “take this plea, or I’ll jury trial your ass for a much much worse offense.” What’s the difference here?”
My response I would say that with your example, you’re trading your right to contest the charges in a judicial proceeding for the lower sentence. In the IPA context, you’re trading your right to actually prove your actual innocence via scientific evidence for the guilty plea to which you would otherwise have been “entitled” to.
Of course, Susan makes another good point that one “could always plead guilty anyway, you [would just] have no control over the [sentence] you get.”
This article today at CNN reminded me of something I’ve been interested in for a while now — the reliability of sniffer dog use in criminal investigations and law enforcement.
There are two major uses of dogs in this context that are highly problematic: use of dogs for “scent lineups” to identify criminal suspects and use of narcotics detecting dogs. (In most other contexts, I’m a-okay pretty much across the board with dog tracking– I don’t have any problems with using dogs for detecting explosives or for border searches.) While drug scenting dogs are a much more complicated legal problem, relating to the constitutional requirement of probable cause for Fourth Amendment purposes, the use of dogs for scent lineups has a much greater empirical problem, and their use in the courtroom has not been methodologically sound [PDF].
The requirements for a sniffer dog to be certified are not particularly rigorous, and in Texas and Florida especially, it looks as if a lot of innocent people have been put behind bars as a result of unscrupulous practices by dog trainers. A major problem in the use of scent lineups is that, while dogs actually are pretty good at picking out the “correct” scent from a list of possibilities put before them, when provided with a scent line up with no correct matches, the dogs will all too often default to a “closest match” and produce a false positive.
For the use of narcotics dogs, the science isn’t much more comforting. Although you generally won’t get a false conviction because of the use of a drug sniffer dog (either the police find the drugs on you or they don’t), their use amounts to a real infringement on Fourth Amendment protections. Under United States v. Place, brief detention by law enforcement in a public area for the purpose of carrying out a “dog sniff” is not a search for Fourth Amendment purposes. In Illinois v. Caballes, Justice Souter dissented (from which the title of this post is also taken), noting that:
At the heart of both Place and the Court’s opinion today is the proposition that sniffs by a trained dog are sui generis because a reaction by the dog in going alert is a response to nothing but the presence of contraband. . . . Hence, the argument goes, because the sniff can only reveal the presence of items devoid of any legal use, the “sniff does not implicate legitimate privacy interests” and is not to be treated as a search. . . .
Pretty much every circuit — except possibly my home circuit, the 11th, which has not “squarely addressed” the question — treats it as probable cause to undergo a search when a sniffer dog gives a positive hit. The only evidentiary standards are that the handler must testify to the dog being “trained” and “reliable”. (The only exception to this rule that a not-particularly-thorough search turned up: United States v. Trayer, 898 F.2d 805, 808 (D.C. Cir. 1990)(dog giving positive hit alert at sleeper car on train is not in itself probable cause)).
And most worryingly, some circuits only look at the training of the dog, not the handler. This is pretty faulty reasoning, as the trainer is half the equation — they’re the ones who have to interpret what the dog is indicating. See United States v. Outlaw, 134 F.Supp.2d 701, 813 (5th Cir. 2003) (“an alert is simply an interpretation of a change in the dog’s behavior by a human handler”). In addition to bad trainers who aren’t used to the dogs and don’t know when they’re giving an alert, there’s also the possibility of very closely trained dog/handler combos being susceptible to the Clever Hans effect.
Dogs just aren’t perfect. For example, tired dogs do significantly worse than rested dogs — dogs can’t sweat so they have to pant to dissipate heat, and unfortunately you can’t exactly pant and sniff at the same time — so an overworked and overheated dog is going to produce less reliable results. However, even assuming all dogs are as infallible as Rin Tin Tin, a positive alert from a narcotics dog just doesn’t seem to meet the threshold for probable cause.
Using Bayes’ theorem, and granting dubiously high estimates of dog accuracy (98%) at detecting when drugs are present, and assuming .5% of the population possesses drugs on them at any given time, then then the odds of a dog alert correctly indicating the presence of drugs is only 1 in 5.
“If the dog sniffs 10,000 people, 50 (10,000 x .005) will possess drugs. Out of these, the dog will correctly alert to 49 (50 x .98). Of the remaining 9950 people that do not possess drugs, the dog will falsely alert to 2% of this group, resulting in 199 (9950 x .02) false detections.
Out of this population of 10,000, the dog has positively alerted to 248 people, 49 of which are correct detections and 199 are false alerts. Thus, the probability that an individual actually possesses cocaine based on this dog is 49 out of 248, a detection rate of less than 20%.” Robert Bird, An Examination of the Training and Reliability of the Narcotics Detection Dog, 85 Ky. L.J. 405 (1996).
That doesn’t sound like probable cause to me.
-Susan
I was going to resist commenting on the Polanski affair, or maybe limiting comments to any issues raised by his extradition. There are too many appalling apologies out there condemning his arrest, and far too many attempts to minimize his crime, that make me reluctant to wade in to the fray. Let’s be clear: Polanski forcefully and statutorily raped and sodomized a 13 year old girl that he had drugged, over her repeated objections and attempts to fake an asthma attack to get him to stop. This man deserves no one’s sympathy or defenses of his character.
But completely ignoring the details of the crime, having a 30 year fugitive from the U.S. arrested while on a trip to Switzerland does make for an interesting thought experiment. There is a great post at Cheap Talk that I wish I’d written:
Should punishment depreciate as time passes? As usual the answer probably depends on whether you think of punishment as justice or as a mechanism to internalize externalities.
The post points out three interesting questions this raises. First, after a span of thirty years, we are effectively a new person from who we were before; can a punishment for a crime committed half a lifetime ago then serve any purpose? Second, might the long delay between act and punishment be an argument for increasing the punishment? After all, thanks to the human tendency to engage in future discounting, a punishment of equal severity that is administered later in time is effectively a lesser punishment than one administered immediately. And, third, given that the cost of a prosecution spanning three decades (and three countries) is much greater than the cost of a quicker one, but also given that prosecutors who have all the time in the world are likely to be much more successful in getting a case together, there is always the risk that “the freedom to delay induces prosecutors to optimally impose costs on the innocent [and on the criminal justice system as a whole] in order to maximize chances of conviction.” Should we then be more hostile to such delayed prosecutions, in order to keep this bad incentive in check?
(Any dangers in falsely proving guilt that are posed by decay in the quality of evidence are minimal, the post points out, when the defendant has confessed to the crime as Polanski has.)
To expand on this some, the three major justifications for criminal punishment are rehabilitation, retribution, and deterrence. (You can add others in there, such as compensation and denunciation. But compensation is more civil in character, and denunciation can bit fit under both deterrence and retribution. I’ll stick with three categories for now.) A delay of 30 years inevitably changes the rationales for each one.
Rehabilitation is the weakest of the three, by far. There is no evidence I’ve seen to suggest Polanski has been a serial rapist during his years on the lam, and at 76 years old I’d be willing to accept for purposes of argument that he no longer is a threat to others.
Retribution is a harder question, although made somewhat simpler by the fact that the victim involved has publicly forgiven Polanski, and would rather be out of the spotlight than to have the whole ordeal gone through again. However, retribution isn’t merely for the benefit of a criminal’s victims. “Retributionists regard punishment, like justice, as an end in itself. In fact, they regard punishment as a requirement of justice. Retribution is the philosophy that the offender deserves to suffer. The physical harm inflicted on the offender or the damage done to his property is not a means to some other end such as compensation, deterrence, or reform. Punishment itself is the end.” Retribution also serves to sake society’s thirst for vengeance — to give people an outlet for such desires within our system of courts and law, rather than to engage in vigilantism to achieve it.
As is clear from all the meta-commentary over Polanski’s arrest, there are a lot of strong feelings out there about the necessity of punishing Polanski. And remember: this is a double headed crime here. Rape is not the only crime he committed, he also became a fugitive by skipping out before his sentencing hearing and fleeing to France.
So whatever muting effect three decades might have had on the desire for retribution over the rape is more than outweighed by a widespread feeling of anger that he has managed to escape justice for so long. Under this approach, Polanski’s crime was not committed 30 years ago, but rather began then and has been committed anew every day since then that he has avoided standing trial. During that time, he has lived life as a free man, under his true name, making movies, and winning Oscars. Unlike most decent fugitives, he hasn’t kept his head down, acquired an alias, and quietly made a new, honest life for himself.
American egalitarianism is most often expressed by the idea that “no one is above the law.” Polanski attempted to prove that this didn’t apply to him, and for thirty years he succeeded. The loudest and angriest cries for blood that are going on now stem not from the underlying crime itself, but rather from his successful evasion of punishment for so long. Moreover, there is a feeling that it was Polanski’s wealth, fame, and foreign connections that enabled him to do so — and there is nothing more sure to raise American desire for retribution than that.
Deterrence would also be served — at least in some measure — by punishing Polanski, although for the rape this would be of only minimal justification. While I do in some respects believe in the ‘economic lawbreaker,’ where a criminal’s willingness to commit crimes varies with the expected punishment to be imposed, I cannot for the life of me conceive of a rapist who stays from committing a crime because, “well, if I commit it, but get caught, but then escape to France for 30 years, I can still live there as a free man while eating good bread every day, so I think it’s worth it.”
Rather, the deterrence value would be against would-be fugitives. Had Polanski not fled to France, he almost certainly would have been sentenced to prison — but he would almost just as certainly have been released from it twenty years ago, likely more. Instead, Polanski will now probably die in prison. And for the last 30 years has been unable to engage in extensive travelling, always living in fear of capture and extradition. He may have had a nicer life as a fugitive than most, but he was still a fugitive. Let this be a lesson to other accused defendants, then: go through the court system, serve your time now, and one day you will be a free man again.
All that aside… The most important and profound statement I’ve seen yet on the matter comes from Polanski’s victim.
“The one thing that bothers me is that what happened to me in 1977 happens to girls every day, yet people are interested in me because Mr. Polanski is a celebrity.”
Amen. Polanski’s crime is hardly sui generis. Although punishing Polanski would be warranted, it’s only a drop in the ocean towards achieving justice .
-Susan
Just a little bit of criminal law advice this morning: if you’re going to engage in a multi-state crime spree, consult a lawyer. Do not share details of your spree with others. And, perhaps most importantly, do not go on the “Dr. Phil” show and confess to your crimes (with video!) while you are under investigation by a federal grand jury:
Even by the confessional standards of the “Dr. Phil” television show, it was a whopper of an admission.
The nicely dressed couple said they had roamed several states as shoplifters, stealing mostly toys, selling them on the Internet and making as much as $1 million over seven years.
“I’m no lawyer or a cop,” said talk-show host Phil McGraw, his Texas drawl mixed with incredulity, “but isn’t that a federal crime?”
The wife paused a second and then said, “Yeah, it is.”
Last week, a federal grand jury in San Diego agreed, handing down an indictment against Matthew Allen Eaton, 34, and his wife, Laura, 26. And, just as Dr. Phil predicted, the transcript and video of last November’s show are central to the prosecution’s case.
-Michael
A sad end to a long, sad story came today. Brooke Wilberger, a sophomore at BYU, vanished in 2004 and was never found. As part of guilty plea to avoid the death penalty, Brooke’s killer (Joel Courtney) finally revealed where he hid her body. I find this case interesting primarily because it shows the threat of the death penalty sometimes serves a purpose other than the so-called “deterrent effect.”
-Michael
A federal judge has intervened and issued a stay in the case of Romell Broom, the Ohio inmate whose execution was delayed last week when executioners could not find a suitable vein. After two hours of “poking,” Ohio Gov. Ted Strickland ordered executioners to stop and try again a week later. U.S. District Court Judge Gregory Frost has decided that’s not enough time to determine if a ‘second execution’ is cruel and unusual punishment.
Broom’s attorneys plan to argue that a second execution attempt would be cruel and unusual punishment under the Eighth Amendment, as it would impose an “unconscionable” amount of physical and mental anguish on Brown. To be sure, something deep down says it’s wrong to put a man in a chair and attempt to execute him twice. But is that type of anguish any different from the anguish every prisoner faces in anticipating his/her sentence?
In 1989, the European Court of Human Rights (ECHR) ruled that, in some situations, “the ever present and mounting anguish of awaiting execution of the death penalty” is simply too much. See Soering v. United Kingdom [PDF]. Scholars have dubbed this anguish “death row phenomenon.” I’m not familiar with any U.S. case staying an execution becuase of a prisoner’s physical/mental anguish while anticipating his execution. Nevertheless, there have been a few suggestions from a Justice or two that the sensitivities of death row inmates may present real Constitutional questions.
If a U.S. court nullifies Broom’s execution, that might be a step towards accepting the ECHR’s premise that some executions are simply too mentally trying. Such a conclusion would raise a host of new questions. How much mental anguish is too much? What situations raise special anguish? Is “mental anguish” objectively judged or something we examine on an individual basis?
Alternatively, the Court could rely on the physical pain suffered by Broom during the first injection to nullify any second attempt. In 2008, the Supreme Court reaffirmed that “a series of abortive attempts” at execution could well be unconstitutional because it would cause a “substantial risk of serious harm.” Baze v. Rees [PDF]. Resting on physical pain, rather than mental pain, would avoid any slippery slope into death row phenomenon arguments. If the Court concludes that Broom’s mental anguish is enough to stop the sentence, however, it should be prepared to face a plethora of Soering-like arguments in future death penalty cases.
-Michael
