Showing papers in "Journal of Criminal Law & Criminology in 2005"

Developmental Trajectories of Legal Socialization Among Serious Adolescent Offenders

Abstract: Legal socialization is the process through which individuals acquire attitudes and beliefs about the law, legal authorities, and legal institutions. This occurs through individuals' interactions, both personal and vicarious, with police, courts, and other legal actors. To date, most of what is known about legal socialization comes from studies of individual differences among adults in their perceived legitimacy of law and legal institutions1, and in their cynicism about the law and its underlying norms.2 This work shows that adults' attitudes about the legitimacy of law are directly tied to individuals' compliance with the law and cooperation with legal authorities.3 Despite the potential importance of the development of these attitudes about law and their connection to illegal behavior, previous research on legal socialization prior to adulthood (i.e., adolescence) is rare. Although some writers have discussed the ways in which family members and adults in the community shape children's and adolescents' attitudes and beliefs about law-related matters,4 little is known about the ways in which adolescents' legal socialization is shaped by their actual contact with the legal system. In fact, only a very small number of studies have examined legal socialization prior to adulthood.5 These studies have examined children's perceptions of law and legal procedures,6 rights and a “just world,”7 and legal reasoning.8 These early studies generally have relied either on cross-sectional or experimental designs, often with general population samples of young adults. As such, they are generally silent on the developmental component of legal socialization, the role of socializing conditions, and processes that children experience in everyday life. The process of legal socialization should be particularly salient during adolescence, since this is the developmental period during which individuals are beginning to form an adult-like understanding of society and its institutions,9 and when they venture outside the closed systems of family and schools to experience laws and rules in a variety of social contexts where rule enforcement is more integrated with the adult world. In childhood, their experiences are limited to interactions with a small circle of authorities, such as school officials or store security guards, whose power is real, but whose formal legal status is ambiguous. More typically, whatever exposure children have had to law has been vicarious through family, friends or neighbors. But in contrast to children, adolescents' experiences with these new social and legal contexts should have more powerful influences in shaping notions of fairness and the moral underpinnings of law. Studies forecast that these notions of the fairness and morality of legal rules developed during adolescence may influence subsequent behavior in interactions with legal authorities as adults.10 Accordingly, it is reasonable to expect that interactions with legal authorities during late childhood and into adolescence should influence the development of notions of law, rules, and agreements among members of society, including adolescents, as well as the legitimacy of authority to deal fairly with citizens who violate society's rules. 11 Moreover, as a developmental outcome via socialization processes,12 legal socialization is similar to, and intertwined with, many other unfolding changes (e.g., psychosocial maturity) that occur during this period as well as with potentially powerful experiences of adolescence. One would expect perceptions about the legitimacy of law to change considerably during this time period, reflecting an ongoing dynamic between experiences and attitudes across several social contexts. In short, similar to other developmental processes which tend to grow over time and vary throughout the population, legal socialization also should exhibit growth, development, or vacillation as experience grows. However, contact with the police and courts are infrequent among adolescents, even those in high-risk neighborhoods.13 As a result, most subjects in general population samples have little experience in the juvenile or criminal justice systems, and thus have a limited experiential basis to inform their notions regarding the law. Accordingly, studies of legal socialization in community samples of adolescents offer limited contributions to our understanding of the ways in which attitudes about the law, legal authorities, and legal institutions develop as a result of actual contact with the legal system. To better examine legal socialization as a developmental process, it is necessary to study a sample of juvenile offenders over time. In short, because adolescents are likely to vary in their patterns of legal socialization, just as they do in other developmental domains, longitudinal studies are needed to map out the natural history of development in this socio-legal domain, especially during critical developmental periods for adolescents who have nontrivial experiences with the justice system. This study advances our understanding of legal cynicism and legitimacy in several, ways. First, we focus on adolescents. With few exceptions,14 prior studies have examined these dimensions of law-related behavior among adults. 15 If legal socialization develops during adolescence, closer measurement of this domain during that critical period is necessary to accurately identify a developmental process within the changing context of adolescence. Second, this study is the first to examine legal socialization over time in a developmental framework showing the stability or change in these domains during a critical developmental transition from late adolescence to early adulthood. Third, we examine legal socialization among active offenders. Prior work on legitimacy and legal cynicism has analyzed data from general population or community samples, where active offenders often are under-sampled. To the extent that legal cynicism and legitimacy are implicated in compliance with the law and cooperation with legal actors, we might expect these developmental outcomes to be skewed for offenders. Until this study, there has been very little research on active offenders,16 and none longitudinally, that considers the developmental patterning of legal socialization. Accordingly, we analyze data from a juvenile court sample of adolescent offenders charged with serious crimes. Using data from four waves of interviews over eighteen months, we analyze variation in the developmental trajectories of two specific dimensions of legal socialization: legal cynicism and legitimacy. We next identify factors that might relate to the different developmental trajectories. To the best of our knowledge, the current investigation provides the first set of data on the longitudinal, within-individual patterning of two aspects of legal socialization among adolescents, specifically serious youthful offenders, a particularly important theoretical and policy-relevant group.17

Exonerations in the United States 1989 through 2003

Abstract: n this paper we use reported exonerations as a window on false convictions generally. We can't come close to estimating the number of false convictions that occur in the United States, but the accumulating mass of exonerations gives us a glimpse of what we're missing. We located 340 individual exonerations from 1989 through 2003, not counting at least 135 innocent defendants in at least two mass exonerations, and not counting more than 70 defendants convicted in a series of childcare sex abuse prosecutions, most of whom were probably innocent. Almost all the individual exonerations that we know about are clustered in the two most serious common felonies: rape and murder. They are surrounded by widening circles of categories of cases that include false convictions that are rarely detected, if ever: rape convictions that have not been reexamined with DNA evidence; robberies, for which DNA identification is useless; murder cases that are ignored because the defendants were not sentenced to death; assault and drug convictions that are forgotten entirely; misdemeanor convictions that aren't even part of the picture. Judging from our data, any plausible guess at the total number of miscarriages of justice in America in the last fifteen years must run to the thousands, perhaps tens of thousands, in felony cases alone. We can, however, see some clear patterns in those false convictions that have come to light. For rape the dominant problem is eyewitness misidentification - and cross-racial misidentification in particular, which accounts for the extraordinary number of exonerations in rape cases with black defendants and white victims. For murder, the leading cause of the false convictions we know about is perjury - including perjury by police officers, by jailhouse snitches, by the real killers, and by supposed participants and eyewitnesses to the crime who knew the innocent defendants in advance. False confessions also played a large role in the murder convictions that led to exonerations, primarily among two particularly vulnerable groups of innocent defendants: juveniles, and those who are mentally retarded or mentally ill. Almost all the juvenile exonerees who falsely confessed were African American. In fact, one of our more startling findings is that 90% of all exonerated juvenile defendants were black or Hispanic, an extreme disparity that, unfortunately, is of a piece with racial disparities in our juvenile justice system in general. Nearly a quarter of exonerated defendants had been sentenced to death, despite the fact that death row inmates make up only about one-quarter of one percent of the population American prisoners, and a much smaller proportion of the those who pass through our prisons over time. This appears to reflect two simultaneous patterns: capital defendants are more likely to be convicted in error, and false convictions are more likely to be detected when the defendants are on death row. That means that capital defendants who are not sentenced to death, or defendants in similar murder prosecutions in which the death penalty was not sought, may be in the worst position of all: they may suffer the same high risk of false conviction as death row inmates, but get no benefit from the comparatively high chance of exoneration after conviction.

More than Zero: Accounting for Error in Latent Fingerprint Identification

Abstract: The recent exposure of an erroneous latent print identification by the FBI that led to the false arrest of Oregon attorney Brandon Mayfield has punctured the myth of the "infallibility" of fingerprint identification and generated renewed interest in the "error rate" of fingerprint identification. This article undertakes a comprehensive review of what is known about the potential error rate of latent print identification. The article first presents a compilation of all known exposed cases of fingerprint misattributions. Although only twenty such cases have been documented, an analysis of these cases suggests that these cases likely represent only a small portion of the true set of latent print misattributions. Then, the article compiles and analyzes proficiency test data that sheds some light on the potential error rate of fingerprint identification. The second half of the article is devoted to the fingerprint profession's and courts' rhetorical accounts of the potential error rate of latent print identification. This section analyzes efforts to minimize, dismiss, or otherwise account for fingerprint error. Fingerprint examiners make claims of error-free practice that belie the reality of error. The article concludes that we must confront, analyze, and seek to understand error if we want to reduce it.

The Myth of Innocence

Abstract: For decades in America, questions about the death penalty centered on philosophical and sometimes religious debate over the morality of the statesanctioned execution of another human being. Public opinion ebbed and flowed with support for the death penalty, declining as civil rights abuses became a national concern in the 1960s and increasing along with a rapid rise in violent crime in the 1980s.1

Protecting the Innocent: The Massachusetts Governor's Council Report

Abstract: This is a difficult time for the death penalty in America. The past five years have witnessed the development of a severe "crisis of confidence" in the death penalty that shows few signs of abating.' The crisis was initially precipitated by the shocking revelations that at least thirteen persons on Illinois's Death Row, and many more nationwide, were innocent of the crimes for which they were sentenced to die.2 And it was exacerbated by a major academic study at Columbia University, revealing that more than two-thirds of all death sentences imposed since 1972 eventually have been reversed, either on appeal or in post-conviction hearings.3 The conclusions of the Columbia study, which were widely reported in the national media,

Avoiding the Shameful Backlash: Social Repercussions for the Increased Use of Alternative Sanctions

Abstract: For many years, the criminal justice system relied upon jail time to punish serious offenses and fines to penalize less substantial misdeeds. Middle ground was hard to come by. But with prisons overcrowded, state budgets overdrawn, and society reluctant to let crimes go unpunished, a smattering of innovative judges across the country have been turning to what are termed "alternative sanctions." Instead of incarceration or fines, judges are getting creative. They increasingly order sanctions that are all about publicity, forcing convicts to make a "mea culpa message to the community."' So, drunk drivers are forced to advertise their misdeeds with bumper stickers on their cars,2 petty thieves are required to broadcast their transgressions by parading as human billboards,3 and men caught soliciting

The Ethics of Cause Lawyering: An Empirical Examination of Criminal Defense Lawyers as Cause Lawyers

Abstract: Criminal defense attorneys are often motivated by an intricate set of moral and ideological principles that belie their reputations as amoral (if not immoral) "hired guns" who, for the right price, would do anything to get their guilty clients off. Using empirical data from interviews with forty criminal defense attorneys I consider the motivations that inform their decisions to enter the field of criminal defense and the values that influence the manner in which they do their jobs. I conclude that many criminal defense attorneys are in fact cause lawyers who are committed to individual clients but also the "cause" of legal reform in criminal law. These dual commitment - essentially to individual clients versus the collective group of criminal defendants - occasionally raise ethical conflicts that have largely gone under-examined and that the rules of ethics and professionalism are not well equipped to resolve. Although examined here through the lens of criminal defending, the ethical dilemma of cause lawyering is a noteworthy problem generally for activist lawyers because they continue to play an important role in socio-legal movements in this country.

The decline of the juvenile death penalty: Scientific evidence of evolving norms

Abstract: In 2003, the Missouri Supreme Court set aside the death sentence of Christopher Simmons, who was 17 when he was arrested for the murder of Shirley Crook. The Simmons court held that the “evolving standards of decency” embodied in the Eighth Amendment’s prohibition of cruel and unusual punishments barred execution of persons who committed capital crimes before their 18th birthday. This decision was based in part on the emerging legislative consensus in the states opposing execution of juvenile offenders and the infrequency with which the death penalty is imposed on juvenile offenders. The State sought a writ of certiorari, and the case is now before the U.S. Supreme Court. This article presents results of analyses of empirical data on the use of the death penalty for adolescent homicide offenders in state courts in the U.S. since 1990. The data show that, since 1994, when death sentences for juvenile offenders peaked, juvenile death sentences have declined significantly. In particular, the decline in juvenile death sentences since 1999 is statistically significant after controlling for the murder rate, the juvenile homicide arrest rate, and the rate of adult death sentences. This downward trend in juvenile death sentences signals that there is an evolving standard in state trial courts opposing the imposition of death sentences on minors who commit capital offenses. THE DECLINE OF THE JUVENILE DEATH PENALTY: SCIENTIFIC EVIDENCE OF EVOLVING NORMS Jeffrey Fagan and Valerie West

Counted out Twice - Power, Representation & (and) the Usual Residence Rule in the Enumeration of Prisoners: A State-Based Approach to Correcting Flawed Census Data

Abstract: INTRODUCTION The American incarcerated population, 2,212,475 persons strong, is larger than the population of the fourth-largest city in the United States, commands a greater population than fifteen individual states, and contains more people than the three smallest states combined. If the incarcerated population of the United States were a state of its own, it would qualify for five Electoral College votes. As the United States emerges from two consecutive close national elections featuring razor-thin margins of victory,

The Political Economy of Entrapment

Abstract: INTRODUCTION By the time she was eighteen, Amy Lively was drinking heavily. At age twenty-one, after two detoxification programs and in the midst of a divorce, she was emotionally distraught and attempted suicide. Weeks later, while attending an Alcoholics Anonymous/Narcotics Anonymous (AA/NA) meeting, she met a man, Koby Desai. Lively found Desai “supportive and responsive to her emotional needs” and later moved into his apartment. Desai asked her to sell cocaine to a “friend” and, on two

Prisons of the Mind: Social Value and Economic Inefficiency in the Criminal Justice Response to Mental Illness

Abstract: Associate, Covington & Burling; Law clerk, Judge Jose A. Cabranes; J.D. Yale University. I am grateful to Dan M. Kahan, Reva B. Siegel, and Kate Stith of the Yale Law School, Dan Hunter of the University of Pennsylvania, and Allan Brandt of Harvard University, Chair, Department of the History of Science, for their insightful comments and guidance, and for research support provided by the Yale Law School ' For a working definition of "social meaning," see Lawrence Lessig, The New Chieago Sehool, 27 J. LEGAL STUD. 661, 681 (1998) [hereinafter Lessig, The New Chieago School] (defining "social meaning" as "what that [an] act, omission, or status means to a community of interpreters"). ^ The general term "mental illness" may encompass diverse phenomena that are generic, biochemical, psychological, or even socially constructed. The conditions considered to be "mental illness" may be historically and geographically contingent, and may be contested even within one place and time. This Article focuses on a specific segment of mental illness, severe mental illness such as schizophrenia, bipolar disorder, and major psychoses, as those conditions are defined by the U.S. Department of Health, the American Psychiatric Association, and the Bureau of Justice Statistics, among other sources relied upon in this Article. (For further definition of these conditions, and sources relied upon, see infra note 23.) Criminal conduct alone and behavior generally considered antisocial not accompanied by a diagnosable psychiatric disorder are not encompassed within the definition of "severe mental illness." Holding aside controversies concerning the etiology of severe mental illness, such as schizophrenia and major psychoses, there is little serious dispute about the reality of the impact of these conditions on the daily life functioning of people suffering from them. Moreover, institutions tasked with caring for, or confining, people with these conditions acknowledge that this population requires different treatment and poses different challenges than a population without such conditions. Relying on the acceptance by public institutions and the medical community of the necessity of some treatment for people with severe mental illness, this Article examines how and where people with these illnesses are treated, and at what costs.

Foreword: Beyond Blakely and Booker: Pondering Modern Sentencing Process

Abstract: The Supreme Court's landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment's right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in the unexplored shadows of the Supreme Court's decisions in Blakely and Booker. In this foreword, I explain why an important enduring question which emerges from the Supreme Court's recent sentencing jurisprudence concerns whether, when and how procedural issues other than the Sixth Amendment's jury trial right will be addressed after Blakely and Booker. In Part I, I provide a brief account of modern sentencing reform and its neglect of an array of procedural issues. Part II focuses upon the Supreme Court's past and present jurisprudential struggles with procedural rights at sentencing. Part III sketches considerations for courts and other key sentencing actors and institutions as they explore what process is due in modern sentencing systems. Part III concludes by suggesting that the pitched battle over the rights and results in Blakely and Booker reflect competing visions of what procedural concepts and norms will take center-stage as the Supreme Court considers the applicable constitutional rules for modern sentencing decision-making. Justice Stevens leads a faction of the Court concerned about safeguarding procedural rights for defendants at sentencing, while Justice Breyer leads a faction of the Court concerned about ensuring that applicable procedures at sentencing serve the goal of sentencing uniformity. But, with Justice Ginsburg having allied herself with both of these competing factions in Booker, the schizophrenic Booker ruling further obscures which principles should guide lower courts in considering the broad range of procedural issues beyond jury trial rights that follow in the wake of Blakely and Booker.

From William Henry Furman to Anthony Porter: The changing face of the death penalty debate

Abstract: [Because of] questions about the fairness of... sentencing; because of the spectacular failure to reform the system; because we have seen justice delayed for countless death row inmates with potentially meritorious claims; because the Illinois death penalty system is arbitrary and capricious-and therefore immoral-I no longer shall tinker with the machinery of death.... The legislature couldn't reform it. Lawmakers won't repeal it. But I will not stand for it. I must act. Our capital system is haunted by the demon of error-error in determining guilt, and error in determining who among the guilty deserves to die. Because of all of these reasons today I am commuting the sentences of all death row inmates.1

The fall of the confession era.

Abstract: Today, we live in the "confession era" of criminal law: a defendant's inculpation of himself is the golden ring for which prosecutors always reach. Police procedures are structured around it, as are vast swaths of criminal procedure doctrine, from Escobedo to Miranda to Dickerson. Knowing sophisticated and reliable techniques for interpreting these confessions is thus fundamentally useful to lawyers and judges. In Speaking of Crime: The Language of Criminal Justice, Lawrence M. Solan and Peter M. Tiersma provide a sweeping introduction to the state of the art in forensic linguistics, providing the reader with just such techniques. This makes their book indispensable to the modem practitioner.' At the same time I commend Solan and Tiersma in this review for making forensic linguistics accessible to the novice, I am also going to suggest that the confession era is coming to a close. As new technologies develop, such as DNA identification, fMRI "lie detector" tests, and "data fingerprinting" on the internet, I predict that courts will rely less and less on confessions and their artifacts altogether, ironically rendering our need for linguistic sophistication in this area of the criminal law less important. Of course, we are not out of the confession era yet (if in fact we ever will be), and in Part I of this review, I will outline this book's many contributions to understanding issues of language that are so central to the