Category Archives: BLE Scholarship

Scholarship Update: Blind Injustice

Blind InjusticeAs I am sure is true for many, I have large stacks of books waiting to be read that sit in piles on my office desk or home book stand. One pile, which I am working through — books about the role of behavioral science in criminal justice — just expanded with the publication of Mark Godsey’s Blind Injustice: A Former Prosecutor Exposes the Psychology and Politics of Wrongful Convictions.  The director of the Ohio Innocence Project, Professor Godsey‘s book  promises to be a tour de force about how a myriad of psychological factors — such a confirmation bias, cognitive dissonance and dehumanization, to name a few — can cause prosecutors to make horrible errors in judgment.  One chapter is dedicated to tunnel vision, a term well-known to those in the field of criminal justice, which too often causes prosecutors and law enforcement to focus narrowly on evidence of guilt without objectively assessing contrary evidence of innocence (I have written about tunnel vision with regard to the famous case of Jeffrey MacDonald, the army doctor who was convicted of the brutal slaying of his wife and two young daughters more than 40 years ago).

Peppered with examples from cases Professor Godsey has worked on, as well as others in the news, the book promises to be a valuable addition to the growing body of scholarship exploring the role of psychological biases in the process of criminal adjudication.

Other notable books on the subject include: Adam Benforado’s Unfair (2015), Dan Simon’s In Doubt: The Psychology of the Criminal Justice Process (2012), and Daniel Medwed’s Prosecution Complex (2012).  And, of course, there is a large and growing body of academic scholarship in law reviews, including this article by Keith Finley and Michael Scott and this one by Alafair Burke.

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Ethical Systems’ new E-book: Head to Head

ESProfiled in today’s Wall Street Journal, the new E-book by Ethical Systems, Head to Head: A Conversation on Behavioral Science and Ethics, is a great introduction to the subject. Easily accessible to non-experts, the book is formatted as an interesting conversation between ES’s CEO, Azish Filabi, and Jeff Kaplan, a leader in the field of Compliance & Ethics (Kaplan’s Conflicts of Interest blog provides a wealth of useful material on behavioral ethics in the compliance field). As the WSJ noted today:

Behavioral science can help organizations improve their ethics and compliance programs, but wading through the academic prose of such research reports can make them less useful to the people tasked with overseeing those programs. A new e-book from Ethical Systems, a collaboration of researchers that promote ethical business culture, highlights the latest insights from the behavioral science field and provides action points for organizations to incorporate any lessons that are learned.

Many of the behavioral topics in Head to Head will be familiar to readers of this blog, such as overconfidence bias, the “Holier Than Thou” effect, conformity bias, priming by money, the corrupting influence of power, slippery slopes, the counterfeit self, and the power of nudges. A great read for anyone who wants a lively refresher on the power of behavioral science to shape ethical decision-making.

Update: 10/10/17: Ethics and Compliance Initiative has posted a webcast by the two authors of Head to Head, which is available here (the webcast is free; registration required).

Moral Courage

 

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John Doar (right) and U.S. marshals escorting James Meredith to class at the University of Mississippi

Douglas Linder and Nancy Levit‘s inspiring book, The Good Lawyer, describes the work of John Doar (1921-2014), who, as Assistant Attorney General for Civil Rights under Presidents Kennedy and Johnson, was at the front lines of many of the most contentious events in the civil rights movement. It was Mr. Doar who guarded James Meredith during his first night in his dormitory amidst riots at the University of Mississippi in 1962; who prevented bloodshed by situating himself between police and protesters while pleading for peace three days after Medgar Evers was killed in Jackson, Mississippi in 1963; and who, despite death threats, argued for and obtained convictions in the infamous “Mississippi Burning” trial in 1967 (more here). These are but some of the courageous acts by Mr. Doar, who consistently put principle before his own personal safety in his illustrious career.

As the New York Times noted, Mr. Doar “‘was the face of the Justice Department in the South,’ President Obama said in 2012 when he presented Mr. Doar with the Presidential Medal of Freedom, the country’s highest civilian honor. ‘He was proof that the federal government was listening.'”

What was it about Mr. Doar, who also played a leading role in the impeachment proceedings against Richard Nixon, that spurred him to act so bravely in situations where others would have shied away? Linder and Levit survey the literature on three types of courage — physical, moral and psychological — noting that, as both genetic and developmental factors contribute to courageous conduct, training and the proper conditions can help nurture courage by lawyers.

My own scholarship, Moral Courage in Indigent Defense, has led me to similar conclusions. Situating the discussion of moral courage within the context of criminal defense lawyers who represent indigent clients, I explore ways to encourage defenders to resist excessive workloads that undermine competent representation.

The abstract:

This essay, part of New England Law Review’s symposium on Behavioral Legal Ethics, explores the conditions under which criminal defense lawyers for indigent clients can be expected to resist excessive workloads. Drawing from research on the psychology of moral courage, it identifies factors that have been found to correlate to courageous conduct in the face of personal risk, most notably the role of anger, moral conviction and sensitivity to injustice. Applying these findings to the field of indigent defense, it sets out some preliminary ideas about how to identify and overcome barriers to action.

 

@TheBLEBlog

Our new Twitter account has been active —  for example, highlighting scholarship over the years on subjects that we now call Behavioral Legal Ethics. For those on Twitter, we can be followed @TheBLEBlog.

Here are a few of our recent tweets:

Scholarship Update

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Professor Molly Wilson

Co-founder of this blog, Molly J. Walker Wilson, has written an important article, Defense Attorney Bias and the Rush to the Plea, about psychological biases that infect the plea bargaining process. A topic near and dear to my heart (see here), Wilson’s article is a must read for anyone interested in the human behavior that drives what she describes as the “‘meet-em-and-plead-em’ culture of public defense.”

This summary from the article provides a snapshot:

This article challenges the current attorney-controlled, plea-bargain system of criminal justice and calls for a greater role for criminal defendant choice in pretrial decisions. The central claim of this Article is that defense attorneys are vulnerable to biases that influence their perceptions of their clients’ cases and predispose them to be overly favorable to plea deals. Giving defendants more voice in pretrial choices will lead to more pretrial investigation and fewer ill-advised plea deals.

Part II of this Article discusses the psychological biases that influence defense attorney decision-making. These biases include those resulting from repeat experience with the criminal justice system, biases associated with a desire to confirm existing beliefs, and biases that are motivated by a need to preserve one’s own positive self-concept. Part III delves into the phenomenon of the “meet-em-and-plead-em” culture of public defense. This Part outlines the features of the current crisis in public defense and explains how the lack of resources lead public defenders to pressure clients to take deals offered by prosecutors. Part IV introduces the problem of the innocent indigent defendant and explains why attorneys’ incentives to pressure clients to take deals can result in bad choices. Part V provides a closer look at how lawyers’ biases lead them to favor deals and how courts nevertheless routinely privilege attorney choice. Part VI proposes an alternative model, one in which the criminal defendant himself plays a dominant role in every major step in the criminal defense process. This Part reveals a number of advantages to a defendant-led defense, and provides a data-driven rationale for why the defendant, and not the attorney, should be in control of the decision process.

Links to Symposium Scholarship

The articles produced in conjunction with New England Law Review’s symposium on Behavioral Legal Ethics are now available online.  Thanks to all for helping to make this event such a success:

 

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Published: “Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility”

The final version of my article, Insights from Psychology: Teaching Behavioral Legal Ethics as a Core Element of Professional Responsibility, has been published in the Michigan State Law Review.  It is available here.

ABSTRACT

The field of behavioral legal ethics—which draws on a large body of empirical research   to   explore  how   subtle   and   often   unconscious psychological factors  influence  ethical  decision-making  by  lawyers—has gained significant attention recently, including by many scholars who have called  for  a pedagogy  that  incorporates  behavioral  lessons  into  the professional  responsibility  curriculum.  This Article provides one of the first comprehensive accounts of how law teachers can meet this challenge. Based on an approach that employs a variety of experiential techniques to immerse students in the contextual and emotional aspects of legal practice, it provides a detailed model of how to teach legal ethics from a behavioral perspective.   Reflections   on   the   approach,   including   the   encouraging   response   expressed   by   students   to   this   interdisciplinary   method   of  instruction, are also discussed.