Archive for August, 2019

A Thought Provoking Piece By Professor Michael Perlin

posted by Judge_Burke @ 20:15 PM
August 5, 2019

Michael L. Perlin (New York Law School) has posted ‘Deceived Me into Thinking/I Had Something to Protect’: A Therapeutic Jurisprudence Analysis of When Multiple Experts Are Necessary in Cases in which Fact-Finders Rely on Heuristic Reasoning and ‘Ordinary Common Sense’ on SSRN. Here is the abstract:

There is a stunning disconnect between the false “ordinary common sense” of fact-finders (both jurors and judges) and the valid and reliable scientific evidence that should inform decisions on the full range of questions that are raised in cases involving the forensic mental health systems – predictions of future dangerousness, competency and insanity determinations, sentencing mitigation in death penalty cases, and sexually violent predator commitments. Abetted by the misuse of heuristic reasoning (the vividness effect, confirmatory bias, and more), decisionmakers in such case frequently “get it wrong” in ways that poison the criminal justice system. If we were to adopt this proposal – to provide two experts in cases in which such inaccuracy is likely, one to explain to the fact-finders why their “common sense” is fatally flawed, and one to provide an evaluation of the defendant in the context of the specific question before the court – then, and only then, would therapeutic jurisprudence principles be vindicated.


Thinking About Double Jeopardy

posted by Judge_Burke @ 20:54 PM
August 2, 2019

Rory K. Little (UC Hastings College of the Law) has posted Double Jeopardy and the Gamble decision (Forthcoming, SCOTUS 2019) on SSRN. Here is the abstract:

This short book chapter analyses the U.S. Supreme Court’s recent decision in Gamble v. United States (2019), which decided not to overrule “170 years of precedent” allowing the “same sovereigns” to both prosecute an individual for the same crime. Here, the feds prosecuted Gamble as a “felon-in-possession” after Gamble had pled guilty to that same offense under State law. He received an additional three years in prison for the federal conviction, consecutive to a year in Alabama. Justice Alito wrote for 7 Justices that the “separate sovereigns” exception to the Double Jeopardy Clause is backed by reasonable policy as well as precedents dating back to at least 1852. Interestingly, Justices Ginsburg and Gorsuch, ideological opposites to some extent, both dissented, and wrote that “individual liberty” should prevail over “stare decisis.” Doctrinal thoughts on three issues are offered at the end.


Is Racial Profiling driven By Lax Application Of Terry v Ohio?

posted by Judge_Burke @ 21:36 PM
August 1, 2019

Michael Gentithes (Chicago-Kent College of Law – Illinois Institute of Technology) has posted Suspicionless Witness Stops: The New Racial Profiling on SSRN. Here is the abstract:

Young minority men in high-crime neighborhoods are surrounded by poverty and crime, yet distrustful of the police that frequently stop, frisk, and arrest them and their friends. Every encounter with the police carries the potential for a new arrest or incarceration, fostering a culture of fear and distrust of the authorities. That culture exacerbates the problems facing officers patrolling these neighborhoods, as more crimes go unsolved because witnesses are unwilling to come forward.

In the past several decades, officers have responded by using a stop-and-frisk technique of dubious constitutionality to control crime. Despite its disastrous implications for the young minority men stopped, the technique was an attractive, proactive response to stubborn crime rates. But as stops-and-frisks have fallen into public and judicial disfavor, officers have deployed a new tactic to obtain evidence of crimes from young minority men: suspicionless witness stops.

In suspicionless witness stops, officers stop individuals in high-crime neighborhoods that may be witnesses to another crime — even though the officers do not suspect that the witnesses have committed an offense. Thus, officers can justify stops without fabricating even the reasonable suspicion of criminal activity typically required to conduct a stop-and-frisk, all by using an analogy to police roadblock cases like Illinois v. Lidster.

Only a robust revival of Terry v. Ohio’s reasonable suspicion standard can curb the vast potential for discriminatory deployment of suspicionless witness stops. But early court responses have been tepid and confused. They should instead soundly reject the analogy to checkpoint cases. The constitutionality of checkpoints arises from their general applicability to wide swaths of the population, not from their aim to locate witnesses. To encourage witnesses to aid investigations, jurisdictions might instead statutorily grant transactional immunity protection to witnesses that officers stop without suspicion. Otherwise, suspicionless witness stops will only perpetuate the cycle of distrust and unsolved crime.