Allan McCay (University of Sydney) and Christopher Lean (University of Sydney) have published "Cousin Took a DNA Test? Courts Could Use it to Argue You Are More Likely to Commit Crimes" on The Conversation. Here is the link:
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Allan McCay (University of Sydney) and Christopher Lean (University of Sydney) have published "Cousin Took a DNA Test? Courts Could Use it to Argue You Are More Likely to Commit Crimes" on The Conversation. Here is the link:
Posted by NELB Staff on 01/28/2020 at 07:38 AM | Permalink | Comments (0)
Justin D. Levinson (University of Hawaii - William S. Richardson School of Law), Robert J. Smith (Harvard Law School), and Koichi Hioki (Kobe University) have published "Race and Retribution: An Empirical Study of Implicit Bias and Punishment in America" on SSRN. Here is the abstract:
Retribution stands at the forefront of America’s criminal justice system. Yet, as Justice Anthony Kennedy cautioned, retribution is also the motive for punishment that “most often can contradict the law’s own ends.” This Article proposes, and then tests empirically, the existence of a novel contradiction of retribution — the idea that race and retribution have become automatically and inextricably intertwined in the minds of Americans.
The study we present in this Article demonstrates that the core support for retribution’s use has been shaken by implicit racial bias. Our national empirical study, conducted with over 500 jury-eligible citizens, shows that race cannot be separated from the concept of retribution itself. The study finds, for example, that Americans automatically associate the concepts of payback and retribution with Black and the concepts of mercy and leniency with White. Furthermore, the study showed that the level of a person’s retribution-race implicit bias predicted how much they supported retribution as a desirable punishment rationale — the stronger the anti-Black implicit racial bias they held, the more likely they were to harbor retributivist views of criminal punishment.
Contextualized within the racial history of America’s criminal justice system, as well as the continued racial disparities in the criminal justice system, the results of our empirical study have wide-ranging implications for legislative enactments, constitutional challenges to harsh punishment practices, and even for the reduction of excessive force against civilians in the context of policing.
Posted by NELB Staff on 01/26/2020 at 07:32 AM | Permalink | Comments (0)
John A. Humbach (Pace University School of Law) has published "Do Criminal Minds Cause Crime? Neuroscience and the Physicalism Dilemma" on SSRN. Here is the abstract:
The idea that mental states cause actions is a basic premise of criminal law. Blame and responsibility presuppose that criminal acts are products of the defendant’s mind. Yet, the assumption that mental causation exists is at odds with physicalism, the widely shared worldview that “everything is physical.” Outside of law, there is probably no field of secular study in which one can seriously assert that unseen nonmaterial forces can cause physical events. But if physicalism is true then a fundamental premise of modern criminal justice must be false, namely, that criminals deserve punishment because their crimes are the products of their criminal minds.
Efforts to reconcile mind-based theories of criminal responsibility with physicalism encounter a dilemma: how can one say that everything occurs in accordance with physical laws while insisting that offenders deserve blame and punishment precisely because their conduct is not dictated by physical laws? The dilemma highlights the fact that, even if mental states can cause actions, they would have to also be “autonomous” of the physical (and physical laws) to be morally significant. Unless causative mental states are untethered to underlying neuronal activity, people's actions are not their “own” but are merely products of causal chains originating outside themselves far back in time.
In sum, if mental states are not autonomous, they could no more have independent moral significance than mental states that are purely epiphenomenal. But the supposition that mental states are autonomous leads to the unpalatable suspicion that the law sends people to prison and deprivation based on spooky-spectral New Age nonsense that no modern thinker would, in any other context, believe.
Posted by NELB Staff on 01/25/2020 at 07:31 AM | Permalink | Comments (0)
Cass R. Sunstein (Harvard Law School) has published "Back to Mill? Behavioral Welfare Economics" on SSRN. Here is the abstract:
A growing body of normative work, going under the name of “behavioral welfare economics,” explores how deference to people’s choices might be reconciled with behavioral findings about human error. The best approach adopts a working presumption in favor of respect for those choices, so long as they are adequately informed and sufficiently free from behavioral biases. For purposes of law and policy, it is most helpful for behavioral economists to emphasize that people may choose the wrong means to promote their own ends; in principle, that possibility may legitimate nudges, incentives, or mandates. But for both empirical and philosophical reasons, behavioral economists interested in law and policy, or in welfare itself, are not in a position to make strong normative claims about whether people choose the right ends. Behavioral welfare economics should be committed to the working presumption, with humility and aware that it is taking a stance on some fundamental philosophical issues.
Posted by NELB Staff on 01/24/2020 at 07:28 AM | Permalink | Comments (0)
Francis X. Shen (University of Minnesota Law School) has published "Aging Judges" on SSRN. Here is the abstract:
America’s judiciary is aging. The average age of federal judges is 69 years old, older than it has been at any other time in the country’s history. The typical reaction to this demographic shift is concern that aging judges will serve past their prime. Scholars have thus offered proposals for mandatory judicial retirement, judicial term limits, and mechanisms for judicial removal. In this Article, I critique such proposals and draw on cognitive neuroscience to argue that rather than forcing their retirement, we should be empowering aging judges.
The central neuroscientific insight is that individual brains age differently. While at the population level, age generally leads to reductions in information processing speed, and for some, serious deficits in memory and decision-making capacity, there is much individual variation. An 80-year old judge is at significantly greater risk for dementia than a 50-year old judge. But it does not follow that all 80-year old judges have diminished cognitive capacities, nor that all 50-year old judges are free from cognitive decline.
Given individual differences in how aging affects cognitive decline, the current system — which mandates intense health scrutiny when a judge is younger, followed by no required medical evaluation for the rest of the judge’s career — can be vastly improved. I argue that we can empower judges by providing them opportunities for confidential, accurate, and thorough cognitive assessments at regular intervals throughout their judicial careers.
If carefully developed and implemented so as to avoid politicization and to ensure complete confidentiality of results, individualized judicial cognitive health assessments will allow judges to make more informed decisions about when and how to modify their service on the bench. More individualized assessment will allow the legal system to retain the wisdom of experienced judges, while avoiding the injustice that comes with handing over the courtroom to a judge who is no longer capable of running it.
Posted by NELB Staff on 01/23/2020 at 07:26 AM | Permalink | Comments (0)
Eve Hanan (University of Nevada, Las Vegas, William S. Boyd School of Law) has published "Incapacitating Errors: Sentencing and the Science of Change" on SSRN. Here is the abstract:
Despite widespread support for shifting sentencing policy from “tough on crime” to “smart on crime,” reflected in legislation like the federal First Step Act, the scope of criminal justice reform has been limited. We continue to engage in practices that permanently incapacitate people while carving out only limited niches of sentencing reform for special groups like first-time nonviolent offenders and adolescents. We cannot, however, be “smart on crime” without a theory of punishment that supports second chances for the broadest range of people convicted of crimes.
This Article posits that the cultural belief that adults do not change poses a major impediment to “smart on crime” policies. Current sentencing policies focus on long-term incapacitation of adults with criminal records because of our folk belief that adult personality traits are immutable. Whereas adolescents are expected to mature over time, and thus can rarely be determined to require permanent incapacitation, adults lack the benefit of the presumption of change.
Standing in contrast to our folk belief that adults do not change is a growing body of neuroscientific and psychological literature that this Article refers to as, “the science of adult change,” which demonstrates that adult brains change in response to environmental prompts and experience.
The science of adult change has powerful implications for punishment theory and practice. In its broadest sense, the science of adult change supports an empirically grounded, normative claim that sentencing should not attempt to identify the true criminal to permanently exclude. Rather, sentencing policy should engage in only modest predictions about future behavior. The presumption of reintegration as a full member of society should be the norm. Moreover, because adult change occurs in response to environmental stimuli, the science of adult change supports both public accountability for the conditions of confinement and, ultimately, a challenge to incarceration as our primary means of responding to social harm.
Posted by NELB Staff on 01/11/2020 at 11:02 AM | Permalink | Comments (0)
Jason Ralston (Baylor University), Jason Anthony Aimone (Baylor University), Charles M. North (Baylor University), and Lucas Rentschler (Utah State University) have published "False Confessions: An Experimental Study of the Innocence Problem" on SSRN. Here is the abstract:
The innocence problem, which occurs when an innocent person is falsely accused or convicted of a crime, is impossible to study with empirical data, because “true” innocence and guilt are unobservable in the “real world.” In this study, we replicate the criminal justice system in the laboratory with real salient crimes and subjects acting in the roles of defendants, prosecutors, and jurors in order to study the innocence problem. In a controlled environment, we identify individuals who are falsely or accurately accused of a crime and track them through the plea-bargaining system. This allows us to explore how being falsely accused of a crime affects plea bargaining decisions. We find evidence for a substantial innocence problem, reflected by a high willingness of truly innocent defendants to accept plea bargains. However, they do so at a lower rate than the truly guilty suggesting preferences for truth telling, an irrelevant factor in most economic theory. We also find evidence that individual preferences over uncertainty influence plea decisions, as predicted by economic theory. Overall, we find that loss aversion has a significant positive influence on plea decisions and that the reduced propensity of the truly innocent to accept plea bargains is driven by an interaction between their preferences to avoid lying and their preferences over uncertainty.
Posted by NELB Staff on 01/10/2020 at 10:59 AM | Permalink | Comments (0)
Carol M. Rose (University of Arizona - James E. Rogers College of Law) has published "Commons and Cognition" on SSRN. Here is the abstract:
Garrett Hardin’s Tragedy of the Commons describes the cognitive state of a hypothetical herder on a common grassy field, who calculates that he will benefit most by grazing his stock in full while suffering only a fraction of the lost grass, but if other herders act similarly the field will be decimated. Hardin’s herder is both ignorant of and indifferent to other herders and the field itself. Other commons theorists, however, suggest that the actors’ cognitive stances largely depend on the scale of the commons. Participants in the Prisoner’s Dilemma (a very small commons) appear to be dominated by distrust rather than ignorance or indifference. Participants in mid-sized commons—such as Hardin’s herders in real life—show some distrust, but also great knowledge and engagement in common pool management. Participants in the largest-scale commons issues, such as climate, are actually those most likely to exhibit the herder’s supposed ignorance and indifference. This article discusses the ways in which these different cognitive stances track the scale of collective action “tragedies” and concludes by discussing the cognitive aspects of climate change.
Posted by NELB Staff on 01/09/2020 at 10:55 AM | Permalink | Comments (0)