Author Archives: Molly J. W. Wilson

Repeated Misconduct and “Unethical Amnesia”

Those of us who study and write about ethics often wonder why human beings repeat unethical behaviors and fail to learn from their mistakes. Recently, researchers from Northwestern and Harvard have grappled with that question and believe that they may have an answer. Maryam Kouchakia and Francesca Gino conducted a study on cheating and found evidence that people suffer from “Unethical Amnesia,” the tendency to forget past, unethical behavior.  Kouchakia and Gino hypothesize that the psychological discomfort that individuals experience when they cheat leads them to obfuscate memories of their ethically questionable actions. As a result, these individuals fail to learn from the past, and are more likely to repeat bad acts.

More information about the research can be found here: Unethical Amnesia

Batson: Pretext? Or Implicit Bias?

Most of us probably recall Batson, the case in which the Supreme Court held that a criminal defendant could challenge his conviction if he or she could convince a judge that jurors of a protected class were intentionally excluded because of their membership in that class. Recently, the Missouri Court of Appeals for the Eastern District published an opinion in the case of Missouri v. Rashad in which the issue was whether the prosecutor’s dismissal of two African American jurors was pretextual.  This case was interesting because the prosecutor admitted that, in the case of one African-American juror, he had made a mistake in not dismissing a similarly situated Caucasian juror.  The question for the court was whether a prosecutor’s oversight is an excuse for differential treatment.  The court answered that it was, seemingly because Batson requires intentional exclusion.

What is truly notable about this opinion is the concurrence, written by Chief Judge Lisa Van Amburg, which takes issue with Batson because it does not address implicit bias. In its simplest form, implicit bias is the unconscious tendency most people have to favor particular groups of people and disfavor others.  The Implicit Association Test (IAT) is a test in which people are asked to pair items, and their reaction time is measured.  There are a number of different versions of this test, and each measures a different type of bias.  In one, people pair black and white faces with positive or negative words.  Most people are faster when they are pairing white faces with positive words than when they are pairing black faces with positive words.  Judge Van Amburg’s point in her concurrence is that when an attorney makes an “honest mistake” by dismissing a black juror, but not a similarly situated white juror, he may well be exhibiting implicit bias.  Moreover, it is likely that this type of implicit bias occurs more broadly in the selection of jurors, and in a variety of other areas in the criminal justice system.

The opinion and concurrence can be read here: Missouri v. Rashad

The Role of Statistical Risk Prediction in Criminal Sentencing

This posting is a follow-up to my earlier post, A New Era in Criminal Sentencing and Incarceration, which described the growing unease over the high rates of incarceration in the U.S.  Prison overcrowding and the disparate impact of incarceration on certain populations and communities are topics with important ethical implications.  Mandatory minimums and “three strikes” sentencing schemes have been controversial since their inception.  In the face of pressure to address the large numbers of prisoners and mounting concern over the psychological, social, and financial consequences of long-term incarceration on individuals and communities, legislatures seem poised to act.   However, replacing current sentencing schemes is no easy task; both individualized and standardized approaches are fraught with difficulties.

For more than a decade—since before the time when I was his student at UVA Law—John Monahan has been developing risk assessment models to predict the future behavior of offenders.  This work, supported by the National Institutes of Health and MacArthur Foundation, has resulted in many articles (and a book).  Monahan’s latest article, with frequent coauthor, Jennifer Skeem, is titled Risk Assessment in Criminal Sentencing.  It can be found here:  Risk Assessment in Criminal Sentencing

The use of demographic and other information, along with statistics to determine future behavior is quite different from the more traditional “gut intuition” approach.  Monahan has noted that the two methods were described in Paul Meehl’s 1954 article, Clinical Versus Statistical Prediction (1954):

[…there are ]two ways of forecasting behavior. One, a formal method, uses an equation, a formula, a graph, or an actuarial table to arrive at a probability, or expected value, of some outcome; the other method relies on an informal, “in the head,” impressionistic, subjective conclusion, reached… by a human clinical judge.

[From John Monahan, Violence Risk Assessment: Scientific Validity and Evidentiary Admissibility, 57 Wash. & Lee L. Rev. 901 (2000):  Violence Risk Assessment  ]

The Federal Sentencing Guidelines (FSG) can be viewed as an attempt to strike a balance between the human decision-maker and the actuarial design. The guidelines are equitable in that they establish consistency across jurisdictions among like offenders, but they fail to take some of the more individualistic information (such as marital status and education level) into account.   Although the FSG address several problems with the judicial discretion model, critics have pointed out the guidelines achieve uniformity at the expense of fairness, in that factors indicating the appropriateness of a lighter sentence are ignored.

Consideration of factors that have been identified and demonstrated to be reliable predictors of future criminal behavior may strike the perfect balance.  On the one hand, this approach respects the individuality of each offender, because it takes into consideration that offender’s characteristics and background.  On the other hand, statistics-based risk assessment decisions would, at least in some senses, treat similarly situated defendants similarly.

Of course, predictions of future violence have been a central part of the civil commitment process for years.  Mental health professionals have been tasked with examining individuals and making assessments about future violence prediction.  The advantage of a pure data-driven approach is increased accuracy and cognitive errors.  In the criminal sentencing context, an actuarial approach lessens the impact of the personal preferences and biases of judge and jury.  Ultimately, the argument goes, risk prediction models are likely to result in better accuracy, and therefore more “correct” outcomes.

Although some factors related to risk of reoffending are common in sentencing schemes, of late, primary or wholesale reliance on statistical prediction of future risk has not been.  That may be changing.  Courts in a number of jurisdictions appear to be incorporating risk prediction into sentencing decisions.  At least one state is formally considering the move. Several months ago, news outlet fivethirtyeight reported that Pennsylvania would be the first state to experiment with a new sentencing practice, based upon risk assessment.  According to the report:

Pennsylvania is about to take a step most states have until now resisted for adult defendants: using risk assessment in sentencing itself. A state commission is putting the finishing touches on a plan that, if implemented as expected, could allow some offenders considered low risk to get shorter prison sentences than they would otherwise or avoid incarceration entirely. Those deemed high risk could spend more time behind bars. [For more, see: Prison Reform Risk Assessment]

Risk assessment tools could help Pennsylvania effectively distinguish between the offenders who are most likely to pose a risk to society and those who would benefit from rehabilitation, substance abuse or other treatment, or a simple second chance.  The new method may allow a state to address prison overcrowding in an effective and humane way, and it could result in less crime down the road.  However, a bevy of ethical issues arise as well.  As fivethirtyeight notes,

The risk assessment trend is controversial. Critics have raised numerous questions: Is it fair to make decisions in an individual case based on what similar offenders have done in the past? Is it acceptable to use characteristics that might be associated with race or socioeconomic status, such as the criminal record of a person’s parents? And even if states can resolve such philosophical questions, there are also practical ones: What to do about unreliable data? Which of the many available tools — some of them licensed by for-profit companies — should policymakers choose?  Prison Reform Risk Assessment

As states and the federal government address the thorny issue of how to eliminate prison overcrowding and lower incarceration rates, actuarial data derived from social science will likely play a major role.  Time will tell whether these new risk assessment tools can be implemented in a way that is ethical and effective.

A New Era in Criminal Sentencing and Incarceration

On October 20, the New York Times reported that “more than 130 police chiefs, prosecutors and sheriffs — including some of the most prominent law enforcement officials in the country” have formed a group (Law Enforcement Leaders to Reduce Crime and Incarceration) to lobby for a wide-scale reduction in the  incarceration rate.  The group wants a range of alternatives to criminal arrest, and calls for a revision of the criminal code and an end to mandatory minimum prison sentences.  Criticism for get-tough-on-crime sentencing has been gaining momentum, and a growing number of investigative reporters, law-makers, judges, civic leaders, and academics have been asking hard questions about the ethics of practices like mandatory minimum laws and solitary confinement.

Some data-driven analyses seem to suggest that incarceration has a host of counter-productive and counter-intuitive effects. The U.S. Department of Health and Human Services points to the psychological effects of incarceration. DHHS Report  Incarceration is associated with lower earning potential and a loss of connection with family and friends. Safer Foundation Report

And there has been concern for some time regarding certain features of the Federal Sentencing Guidelines that have been perceived to disproportionately and needlessly affect minority populations. For example, before the Fair Sentencing Act (FSA) was passed in 2010, a defendant faced a minimum five-year sentence if convicted of possessing at least five grams of crack. Possession of 50 grams brought a minimum of 10 years. Conviction for possession of powder cocaine resulted in far milder consequences.

Meanwhile, the deterrent effect of harsh prison sentences is being called into question.  A study by David S. Lee, Justin McCrary examining the deterrent effects of prison sentences in young people under age 18 (when sentences are relatively short) and over 18 (when sentences are relatively harsher) detected little discernable difference in the level of deterrence, leading them to conclude that severity of sentencing had little effect on the decision to commit a crime in this population. Lee & McCrary Study

Slowly, steps taken to address these concerns are bearing fruit.  A 2015 U.S. Sentencing Commission study reported that over the three years following the passage of the Fair Sentencing Act, the number of offenders sentenced to a prison term for crack-cocaine offenses dropped by half.  The commission estimated the FSA will reduce the number of prisoners by 29,653 per year. Meanwhile, Congress appears poised to do more.  Conservative Republican Senator Charles E. Grassley (Iowa) and Democrat Senator Richard J. Durbin (Illinois) are two prominent politicians who are reaching across the aisle and spearheading attempts to lessen the effects of mandatory prison sentences, increase early release for prisoners, and create new programs to prepare offenders for life after prison.  Earlier this month, the Justice Department announced one of the largest releases of federal prisoners in history.  Approximately 6,000 inmates will be released (roughly one third will be deported).  Most of those released were convicted for nonviolent drug offenses.

We are at a turning point regarding sentencing offenders.  Much of the current activity involves undoing what has been done—revisiting the question of mandatory minimums, asking tough questions about legislation that imposes disproportionate burdens on minority populations, and releasing inmates whose freedom likely poses little threat to society.  These are positive steps in the right direction, but they leave questions about how we should rebuild our criminal justice system to create one that accomplishes our goals.  This project begins by clearly identifying our objectives.

Behavioral science has an enormous role to play in this project.  A major function of the criminal justice system is encouraging positive behavior and discouraging decisions that result in harm.  There is a wealth of data that can and should speak to the best way to accomplish these ends.  In the next several posts, I will take a look at several angles of the sentencing question to propose positive steps forward.

McCulloch and Protesters Come to SLU Law

Yesterday, Saint Louis University School of Law hosted the student-run Public Law Review symposium, titled The Thin Blue Line: Policing Post-Ferguson.  Robert McCulloch, the prosecutor at the center of the storm of controversy surrounding the Darren Wilson/Michael Brown grand jury process, was the opening speaker.  Earlier this week, our law school faculty meeting was the scene of some intense conversation about the up-coming event.  Some faculty worried that providing McCulloch a forum would be harmful to our students of color. Other faculty expressed concern that students who supported McCulloch’s visit felt denigrated.  All faculty members were united in a single goal: to create a space where our students felt free to express divergent views in a respectful and supportive way.

Along with more than 200 guests and speakers, I was in the room for McCulloch’s talk.  He spoke about the grand jury process.  It was a page out of my Criminal Procedure class.  Several minutes into his talk, a young woman in a judge’s robe stood up and interrupted him.  She, along with several other protesters in the audience conducted a mock trial in which McCulloch was the defendant.  McCulloch asked that they stop and allow him to continue talking, as did Dean Wolff.  SLU President Pestello, who was in attendance, similarly implored them to permit McCulloch to continue.  Saint Louis police and SLU security personnel were in attendance, and many of us watched them for any sign that they would move forward to intervene.  None of them moved.  The mock trial continued, and the protesters “convicted” McCulloch.  The dissenting voices ceased, and McCulloch continued his talk.  Several more minutes passed, and a second round of protesters rose, holding signs with tombstones on them.  Their singing drowned out McCulloch’s voice, and they were stalwart in the face of more pleas from President Pestello.  When it became clear that they would not stop, several security and law enforcement personnel moved in and escorted them out.  One more round of protesters interrupted and they were escorted out in a similar fashion.

I will remember the event for a long time to come, not for the content of McCulloch’s talk, nor for what the protesters said.  Notable to me was McCulloch’s willing to come and open himself up to protest and searching questions from audience members.  As an elected official in charge of critical decisions that affect whole communities in fundamental ways, he has that responsibility.  Still, he came to a place where he had very little control over the identity of the audience members and the response to protesters.  I will also remember the protesters, who insisted on giving voice to a perspective they clearly felt had been silenced for too long.  Their approach was disruptive, and I dare say unpleasant for many in the audience.  They could have tried to convey their views during the Q&A, but they clearly felt that this forum did not allow them sufficient space to challenge McCulloch.  They wanted to be heard, and they were.

In the end, what I believe I will remember as being most significant is the pains that were taken to move carefully and to be thoughtful about the response to the protesters’ disruptions.  I don’t know who made the call, first to allow the protests to go on, and then to quell them in order to permit McCulloch to continue.  Not everyone will agree that the right balance was struck.  (Several members of the audience shouted out some version of “Take them out!” at various points prior to the removal of the protesters.)  To my mind, that is beside the point.  More important, through action and inaction, the administration of our law school conveyed acceptance of differing viewpoints, and tolerance of various forms of expression.  There was neither immediate action to silence the protesters nor acceptance of their agenda to disrupt McCulloch’s talk.

In post from November 29, entitled “Teaching Ferguson,” I wrote about my hope for a lesson I try to convey to my students:  listen to all viewpoints, keep an open mind, challenge your own views, and subject them to constant and meaningful testing.  Yesterday’s event was a delicate balancing act, but it seems to me that in the face of challenging circumstances, SLU Law managed to operate according to these principles.

Teaching Psychological Science to Future Litigators: Where is the Line?

Because I am a JD-Psychologist, each year, I teach a seminar that covers, in some form or another, “the psychology of the courtroom.”  The course is a favorite of mine, both because it always draws an enthusiastic crowd of students, and also because it allows me free reign to talk at length about a subject that I usually only have time to briefly cover in my Torts and Criminal Procedure classes.

This semester, for the first time, I have decided to focus on persuasion.  When my seminar has had a broader focus in the past, I have asked the students to think about policy questions and to ask themselves: Why is the law this way? Do laws and legal processes encourage the kinds of behavior we want to encourage?  Could we, perhaps, be doing a better job?   Persuasion can be a tricky topic for a law professor to teach because it inevitably leads down a shady path toward the strategic use of empirical findings to shape jurors’ attitudes.  In the broader social policy arena, we talk about changing attitudes for the good of society—examples include persuading people to stop smoking or to vaccinate their children.  In the context of the courtroom, let’s face it, we’re talking about strategically controlling the memories, perceptions, and emotions of members of the jury to achieve the desired verdict.  I am bound by codes of professional ethics in both of my disciplines, but it is my responsibility to my students, and to their future professional integrity, that creates the most cognitive dissonance for me.  So my class has gained an unintended ethical component, and I find myself asking: where is the line between effective lawyering and unscrupulous manipulation?

In my effort to get a sense for the views of others in the legal academy, I searched for articles related to the ethics of using empirically supported persuasive techniques in the courtroom.  What I found was, well, almost nothing.  This is interesting in and of itself.  Why is so little written about the ethics of manipulating a jury?  Is the reason for this because we all assume that every lawyer may—and perhaps should—use every tactic at his disposal, short of violating rule of professional conduct?  As a practical matter, trials are adversarial battlegrounds, where some rules may be followed less strictly than others.  For example, my sense is that MRPC 3.4 (e) prohibiting a trial attorney from alluding “to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence” and from stating “a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused” is probably flexed more than some other rules.

I had trial tactics on my mind when I walked into the other course I’m teaching this semester, Criminal Procedure, Adjudication last evening.  I showed the students a film called “Gideon’s Trumpet,” which tells the story of Clarence Earl Gideon (played by Henry Fonda), who famously petitioned the Supreme Court from a Florida Prison, contesting the constitutionality of a trial without legal representation.  The resulting case, Gideon v. Wainwright, gave every indigent criminal defendant the right to counsel.  The movie depicts two trials.   The first showcases Gideon’s monumental failure, as he attempts to represent himself.  The second occurs after he gains the right to be represented by local counsel.  The stark contrast between the trials is one of the most poignant and powerful reminders of the importance of a skilled trial attorney in shaping verdicts.  The rhetoric, intonation, and body language of Gideon’s lawyer, and the way he reframes the narrative, turning the prosecution’s eye witness into a credible suspect, is a perfect example of how psychological tactics can operate in a courtroom.  Of course, this is Hollywood, but the result was still compelling.

Here are a few thoughtful pieces on this general subject:

The Arts of Persuasion in Science and Law: Conflicting Norms in the Courtroom

Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy

Enforcing the Law Ethically Means Developing Empathy

On December 5, National Public Radio’s Morning Edition aired a fascinating story on Constance Rice, a civil rights attorney who has made a career of going after the Los Angeles Police Department for violating the rights of minority members in underprivileged areas of the city.  The most remarkable aspect of Rice’s story is her metamorphosis over the course of her career, and the progress that has been made in part because of her willingness to listen to the enemy (my word, not hers). Rice started as an outsider who launched attacks, in the form of lawsuits, on the L.A. Police Department.  Today, although she continues to work for justice, she has also become a sounding board for officers who are “scared to death” and “act out of panic.”

Rice notes that for the white police officer . . .

[h]e doesn’t feel like it’s racism. The black community experiences it as racism, that’s very clear. So what I’m saying is that for people who have to be in the business of solving this dilemma you have to be able to step into the frightened tennis shoes of black kids; black male kids in particular. You have to be able to step into the combat boots and [sic] scared cops, and racist cops, and cruel cops, and good cops. You have to be able to distinguish between all of those human experiences and bring them together. On a single platform of we’re going to solve this by empathizing. We’re going to solve it with compassion and we’re going to solve it with common sense.

It takes a remarkable individual to make the herculean effort she has made to reach across that divide.  Her words should be a lesson to us all.

More on this story can be found on the NPR website at:

http://www.npr.org/blogs/codeswitch/2014/12/05/368545491/civil-rights-attorney-on-how-she-built-trust-with-police