Author: Alice Ristroph

4

Thou shalt not commit a neuroscience.*

Yesterday evening, Harvard Law School hosted a panel on the question, “Should Criminal Law Be Reconsidered in Light of Advances in Neuroscience?” Moderated by Oliver Goodenough, the panel featured Joshua Greene, Jerome Kagan, Stephen Morse, and Amanda Pustilnik. Greene is known for his work in “experimental philosophy,” and he and Morse reprised earlier arguments about whether new research on the brain is likely to produce changes in doctrines of criminal responsibility. As I understood Greene, he’s hopeful that one day we’ll realize that retributive approaches to punishment depend on erroneous assumptions about the human brain. When we properly understand humans as mechanical agents whose actions are always externally caused, it will seem silly to punish as a way of “holding criminals responsible,” and happily, the criminal law will become purely consequentialist.

brain1.jpgNow, I’m no fan of retributivism. But I’m skeptical that more knowledge of the brain is going to unsettle retributive arguments and the associated attributions of responsibility. (Here, I think I’m in agreement with Jeff Lipshaw’s take on experimental philosophy: many moral claims are just not provable or disprovable.) I suspect that whatever we learn about the brain processes of criminals, some persons will look at those brain processes and say, “this criminal deserves to be held responsible; this criminal deserves to be punished.” Put differently, one might say that “responsibility” is a normative judgment, not a fact about the causal mechanisms of the human brain. Whether a defendant “is” responsible depends on whether we (the punishers) decide to hold him responsible. To take an example raised last night, did new facts about the juvenile brain, or about developmentally disabled persons, dictate the outcomes in Roper v. Simmons and Atkins v. Virginia? I don’t think so. It is still the case that some will look at all the empirical information available about Daryl Atkins—IQ tests, medical records, brain scans, whatever—and say he deserves to die, and others will look at the same information, and say he does not. Indeed, Atkins the decision didn’t necessarily save Atkins the defendant: the decision allowed states to choose the process by which defendants would be classified as developmentally disabled or mentally retarded, and the state of Virginia decided this was a jury question. In 2005 a jury decided that Atkins was sufficiently mentally competent to be eligible for death. (Atkins’s reinstated death sentence was commuted to life imprisonment in January 2008 for independent reasons related to prosecutorial misconduct.)

All in all, I think it’s pretty hard to unseat the belief in deserved punishment by introducing new facts. (As I’ve argued, the evidence suggests that new facts can influence judgments about how much punishment is deserved, but that’s a different issue.) “Wrongdoers deserve to be punished” is a non-falsifiable claim, an article of faith that can be disproved no more than God’s existence.

*With apologies to W.H. Auden.

Image credit: Princeton’s Suggestive Contour Gallery. At last night’s panel, someone cited research indicating that subjects find academic papers that include pictures of brains to be more persuasive than otherwise identical papers that lack the brain pictures. I hope that works for blog posts.

1

Early Morning, April 4

Martin Luther King, Jr. was killed forty years ago in Memphis. Much attention has been paid to the last paragraph of his last sermon:

Well, I don’t know what will happen now. We’ve got some difficult days ahead. But it doesn’t matter with me now. Because I’ve been to the mountaintop. And I don’t mind. Like anybody, I would like to live a long life. Longevity has its place. But I’m not concerned about that now. I just want to do God’s will. And He’s allowed me to go up to the mountain. And I’ve looked over. And I’ve seen the promised land. I may not get there with you. But I want you to know tonight, that we, as a people will get to the promised land. And I’m happy, tonight. I’m not worried about anything. I’m not fearing any man. Mine eyes have seen the glory of the coming of the Lord.

But the whole sermon, delivered forty years and a day ago, is worth a read.

2

Torture for Tots

Readers of Larry Solum’s Legal Theory Blog might have noticed yesterday abstracts for several new papers from heavy hitters in the legal academy. My favorite of these April 1 abstracts was the Cass Sunstein-Adrian Vermeule paper on “Unrestricted Interrogation of Minors Not Yet Shown to Have Engaged in Culpable Behaviors.” “Given our assumptions, there is a moral obligation for the state to engage in the torture of innocent children.” Download that while it’s hot!

A good April Fool’s joke has to be plausible, and I think this abstract fits the bill. The same arguments that have been advanced to argue that executions might be morally required and that torture is at least permissible, if not required, can be used to require torture for tots. All you need is the right hypothetical.

And yet, I think Larry Solum is right that torture for tots is a proposal that most will view as a joke. Indeed, it’s a prospect that might help test the claim that we torture when, and if, and only if, necessity demands it. In a seminar discussion a few months ago, I suggested that contemporary support for torture might be driven by a presumption that those who are tortured deserve to be treated thus. Some of those present resisted this characterization, claiming that the arguments were based strictly on necessity, so I offered a hypothetical in which the only way to find the location of the ticking bomb is to torture the terrorist’s innocent young child. As I recall, none of my fellow seminar attendees wanted to defend torture under those circumstances.

A previously unreleased torture memo penned by John Yoo became available yesterday. Marty Lederman links to Part 1 and Part 2 and discusses the memo. David Luban addresses torture for tots, and other weaknesses of ticking bomb arguments, in a new paper available here. And in “Professors Strangelove,” available here, I offer some thoughts on torture, national security tough talk, and one of my favorite movies.

UPDATE: My soon-to-be colleague Frank Pasquale points out this Salon piece, which includes a link to a fascinating Youtube clip on the question of torturing children.

2

Sartorial Exclusion

April is the criminalest month here at Co-op. Thanks to the regular bloggers for the invitation to visit; I’m pleased to join other criminal law professors as a guest. With so many criminal law specialists on board, perhaps no one will mind if I stray from the criminal law and say something about top hats, ascots, and immigration policy.

Top hat1.JPGSunday’s New York Times featured a story about Sebastian Horsley, a British author and self-proclaimed dandy who was recently denied entrance to the United States on the grounds of moral turpitude—and possibly, for wearing a ten-inch top hat. A customs spokesperson cited Mr. Horsley’s past arrests for drugs and prostitution. But Mr. Horsley’s attire also attracted attention.

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2

IRAC in Iraq

“How much do you care about IRAC?” This was one of the many questions about exams posed to me recently, a nervous first-year student’s reference to the formulaic structure of legal argument drilled into law students across the nation: identify the Issue, state the Rule, Apply the rule to the facts, and state a Conclusion.

In fact, I don’t care much about IRAC, as I told my student. If it helps a student organize his thoughts, fine, but I certainly won’t discount an exam response because it doesn’t follow this formula. If anything, I often find legal writing a little too formulaic, squeezed into familiar patterns that take all life and personality out of the argument.

IRAC came to mind again today as I read the sad documents on civilian claims for deaths in Iraq, documents recently released to the ACLU pursuant to a Freedom of Information Act request and now available on the ACLU website. The documents are indeed “deeply disturbing,” but it’s hard to pinpoint exactly what is so troubling about them. It’s not just that they make evident “the human costs of war,” as the ACLU puts it, though they do accomplish that. We already knew Iraqi civilians were dying, even if we didn’t and don’t know just how many. And it’s not that the U.S. government is wholly unresponsive to these deaths. Many (not all) of the files authorize cash compensation to surviving family members. Better $4000 for the loss of one’s 9-year-old son than nothing. And the documents often evoke sympathy not only for the family members, but for the service members involved, like this one that describes a distraught and angry soldier crying near the body of a boy that one of her colleagues has just killed. No, the message of these documents is something more complicated than the familiar claim that war is brutal and violent. One especially disturbing aspect of the documents is the way in which these efforts to make war a little less costly to civilians ends up reducing tragic deaths to bureaucratic forms and mechanical legal analysis. Indeed, at least one document contains IRAC analysis to make any legal writing teacher proud:

The issue presented is whether claimant may receive compensation for the death of his father, his mother, his brother, and 32 sheep’s.

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9

Manners on the internet

I’m sure more experienced bloggers will have much to say about this New York Times article about civility (or lack thereof) on blogs. I’m particularly interested in the article’s focus on blog commenters. I’ve often wondered whether the ruder comments on blogs illustrate the truth of the tale of the Ring of Gyges from Plato’s Republic—with the protection of anonymity, our true (and sometimes ugly) colors appear. (I’ve also seen signed comments that show much less civility than people tend to display in face-to-face interactions, so it is not anonymity alone that is shaping internet incivility.)

The Times article describes proposals for self-enforced blogging norms.

For example, anonymous writing might be acceptable in one set; in another, it would be discouraged. Under a third set of guidelines, bloggers would pledge to get a second source for any gossip or breaking news they write about.

Bloggers could then pick a set of principles and post the corresponding badge on their page, to indicate to readers what kind of behavior and dialogue they will engage in and tolerate. The whole system would be voluntary, relying on the community to police itself.

I suppose this is laissez-faire enough to satisfy speech libertarians. But is it a good idea to discourage or disallow rudeness on the internet? If in fact the anonymity of internet speech allows people to display their true colors, do we want to obscure those colors? I recently watched Harvey, the classic old movie in which James Stewart plays Elwood P. Dowd, a very generous and kind but perhaps slightly crazy man with a six-foot rabbit as his companion. A taxi driver warns Dowd’s sister that if she has her brother “cured,” he will become “a perfectly normal human being, and you know what stinkers they are.” Could internet rudeness be a useful and comparatively harmless reminder of what stinkers we are?

4

The court comes to school: lessons on prosecutorial discretion

Last Wednesday, my criminal law students had to go only a few feet to hear a session of oral arguments before the Utah Supreme Court. Both the Utah Supreme Court and the Tenth Circuit Court of Appeals hold arguments at the S.J. Quinney College of Law every so often. It’s always a great learning opportunity, and Wednesday’s arguments were no exception. A felony drug possession case raised important questions about efforts to limit prosecutorial discretion in charging decisions.

A police officer found a plastic baggie with methamphetamine residue in the defendant’s pocket. Under Utah law, this evidence could have been used to charge possession of drug paraphernalia (a misdemeanor), or possession of a controlled substance (a felony). The state charged the felony offense. At a preliminary hearing, the defendant successfully invoked State v. Shondel, 453 P.2d 343 (1969), a Utah case that provides that “where there is doubt or uncertainty as to which of two punishments is applicable to an offense an accused is entitled to the benefit of the lesser.” Wednesday’s arguments focused on how courts should decide whether there is uncertainty as to the applicable punishment: should courts look only at the statutory language to decide whether two statutes impose different punishments on identical conduct, or should the courts consider how the statutes are applied given the facts and evidence of the particular case? On paper, Utah’s felony drug possession and misdemeanor paraphernalia statutes look different—there are ways to possess drugs that don’t violate the paraphernalia statute, and ways to possess paraphernalia that don’t violate the drug possession statute. But in this case, the only evidence to support either charge was the presence of the baggie with meth residue in the defendant’s pocket. No doubt there will be disagreement about whether prosecutors faced with these choices should charge the offense with the greatest penalty (as John Ashcroft directed federal prosecutors in 2003—see discussion here) or the offense with the least severe penalty, as Shondel seems to require in at least some cases. But as Doug Berman has often noted, in a world in which concerns about sentencing disparities tend to focus on judicial discretion, more efforts to regulate prosecutorial charging decisions might be overdue.

7

Your money or your life

A flurry of scholarship on Lochner v. New York surrounded its 100-year anniversary in 2005. It’s clear why Lochner gets so much attention. But as a matter of constitutional doctrine, I wonder if we pay insufficient attention to the stealth anti-Lochner, Jacobson v. Massachusetts. The two U.S. Supreme Court opinions were announced just a few months apart, Jacobson in February 1905 and Lochner in April. Both involved claims of individual liberty pitted against public health laws—a mandatory vaccination law in Jacobson, a limitation on work hours (as well as regulations of working conditions) in Lochner. But the outcomes could hardly be more different. Jacobson embraced a broad police power to use coercion to ensure public health; Lochner infamously struck down restrictions on bakers’ working hours as a violation of economic liberty. (Justice Peckham dissented in Jacobson and wrote the Lochner majority opinion; Justice Harlan dissented in Lochner and wrote the Jacobson majority opinion.) Lochner didn’t last, of course, but for a while it seemed that the state could use coercion to protect your life (or health) only if it didn’t mess with your money along the way.

I’ve been thinking about Jacobson and Lochner as I work on an article about the state’s interest in the preservation of life. Jacobson (and maybe, to some degree, the renunciation of Lochner) reflects a widespread assumption that the state has such an interest and may use coercion against citizens’ bodies to further that interest. So we see Jacobson cited in abortion cases to support the state’s interest in the preservation of fetal life, in refusal of medical care or “right to die” cases, and to support indefinite civil commitment (Kansas v. Hendricks) or indefinite detention (Justice Thomas’s dissent in Hamdi v. Rumsfeld) in the name of public safety. In fact, Jacobson has been cited by the Supreme Court more often than Lochner, and the Jacobson references are almost universally favorable while the Lochner references are usually not. A pedagogical question: Should Jacobson get more attention in constitutional law casebooks? And a political / philosophical question: Is it so obvious that the state has an interest in preserving individual lives—especially those of individuals who do not themselves wish to continue living?

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5

If the Law is a[n] ass, what is the state?

Leviathan.jpg

The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

11

Bong Hits for What?

Thanks to Dan for the introduction and to the whole Co-op team for hosting me. And thanks for your indulgence over the next few weeks as I share a few thoughts on constitutional law, criminal law, and other topics.

This morning, the Supreme Court heard oral arguments in Morse v. Frederick, the First Amendment case involving a high school student suspended for displaying a banner emblazoned, “Bong Hits 4 Jesus.” Joseph Frederick was an 18-year-old high school senior in January 2002, when he displayed his banner across the street from his high school in Juneau, Alaska, as the Olympic torch procession passed by. The Ninth Circuit found that Frederick’s First Amendment rights were violated even under the less protective standards applied to student speech. The school board (represented by Ken Starr) has denounced the Ninth Circuit’s decision as “unforgivingly libertarian.” As Linda Greenhouse and Marty Lederman have noted, a number of conservative religious organizations have filed briefs in support of Joseph Frederick. The organizations are apparently deeply concerned by the far-reaching authority that the school district has asserted to suppress speech inconsistent with the school’s own understanding of its “basic educational mission,” a mission that may include the inculcation of support for specific public policy positions.

So much for the weighty doctrinal questions that are likely to capture the Court’s attention. One of the things I find most interesting—and amusing—about the case is a slightly different underlying question: what does “Bong Hits 4 Jesus” mean, anyway?

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