Science has much to say about how individual behavior and group wide phenomena influence the core issues of criminal justice.1 From self-incrimination to self-representation, from prosecuting to judging, from trial to punishment the law recognizes that there are subtle psychologics at work.2 Indeed, there is one long continuum of cognitive realities that pervade every precinct of criminal justice.3 And now, scientific study and legal scholarship has uncovered hidden biases4 in the deliberations of justice5 as well as overt barriers to cognitive functioning associated with confinement.6
The materials cited in this article point out that these cognitive states and legal applications can be described in a variety of ways, including but not limited to: adaptive, anchoring, behavioral, belief perseverance, blind spot, brain imaging, cognitive, cognitive authority, cognitive bias, cognitive cleansing, cognitive decline, cognitive deficit, cognitive dissonance, cognitive enhancement, cognitive fatigue, cognitive intervention, cognitive neuroscience, cognitive psychology, cognitive-simplifying heuristics, cognitive wellness, confirmation bias, decision-making, developmental intelligence, egocentric bias, empathy, expectancy, hindsight bias, impairment, implicit bias, information avoidance, motivated cognition, nootropic law, neural plasticity, neuro-, neurobiology, neurodegeneration, neuroimaging, neurolaw, neuroplasticity, neuroscience, observer effects, primacy, priming, selective information processing, social cognition, therapeutic jurisprudence, tunnel vision, and Wells Effect.7
Society is replete with cognitive enhancers from pen and paper to books and computers to libraries and the Internet. And in a nation of laws, lawyers are cognitive equalizers–a constitutional necessity for the accused and an unrecognized right for the punished.8 Indeed, the right to legal representation embodies an essential cognitive right for those burdened by confinement, the right to contest wrongful conviction, unjust punishment and inhumane treatment.9
Just as mens rea lies at the heart of the penal law, cognitive rights are at the core of criminal procedure law.10 Thus, the right to counsel becomes the right to cognitive equality for the disadvantaged pro se prisoner. Without a doubt, the metamorphosis from prisoner into self-representing lawyer is a narrative that has made true and permanent findings of guilt and punishment. This is so despite a generation of exonerations and sentencing reform that have undermined confidence in finality, deference and accuracy.11 Thus, the absence of a right to post-conviction counsel, a cognitive equalizer, contributes to the status quo.12
This article is a collection of research into the cognitive nature of criminal justice participants, the constraints of confinement, and the administration of justice.
REPORTS AND GOVERNMENT DOCUMENTS
Basic Human Right: Meaningful Access to Legal Representation (Human Rights Policy Seminar U.N.C. Sch. L. 2015)
“This report argues that the current state of access to counsel in the United States fails to meet U.S. obligations under international and regional human rights norms. It is intended to aid advocates looking to international and regional human rights bodies, specifically the Inter-American Commission on Human Rights, for assistance in reforming the system in the United States and in pressuring the U.S. government to provide a universal right to meaningful access to legal representation.”
Disabilities Among Prison and Jail Inmates, 2011–12 (BJS 2015)
“Cognitive disability was the most commonly reported disability among inmates: About 2 in 10 prisoners and 3 in 10 jail inmates reported a cognitive disability, the most common disability reported by each population (see textbox). Among prison and jail inmates, an ambulatory disability was the second most common disability (10% each). Among prisoners, 7% reported an independent living disability, 7% reported a vision disability, 6% reported a hearing disability, and 2% reported a self-care disability. Among jail inmates, 9% reported an independent living disability, 7% reported a vision disability, 7% reported a hearing disability, and 3% reported a self-care disability.”
Education and Correctional Populations (BJS 2003)
“Compares educational attainment of State and Federal prison inmates, jail inmates, and probationers to that of the general population. Educational attainment is also examined for various demographic groups — including gender, race/ethnicity, age, citizenship, and military service — and for other social and economic factors. Reasons for dropping out of school are compared for jail inmates and the general population. The report describes the availability of educational programs to inmates in prison and jail and their participation in educational and vocational programs since admission. Findings are based on analyses of more than 10 different datasets from both BJS and the U.S. Department of Education.”
Literacy Behind Bars: Results from the 2003 National Assessment of Adult Literacy Prison (Nat’l Ctr Educ. Statistics 2007)
“The 2003 National Assessment of Adult Literacy (NAAL) included the first assessment of the English literacy of incarcerated adults since 1992. The assessment was administered to approximately 1,200 adults (age 16 and older) incarcerated in state and federal prisons, as well as approximately 18,000 adults living in households. Three types of literacy were measured: Prose, Document, and Quantitative. Results were reported in terms of scale scores (on a 500-point scale) and four literacy levels—Below Basic, Basic, Intermediate, and Proficient. The findings in this report—Literacy Behind Bars—indicate the changes in literacy among incarcerated adults between 1992 and 2003. The report also compares the literacy of adults in the prison and household populations and across groups of prison inmates with different characteristics, including race/ethnicity, gender, educational attainment, age, language spoken before starting school, and parents’ educational attainment. The report looks at the relationship between literacy, education, and job training, including traditional academic education, vocational education, and skill certification. Additionally, the report examines the relationship between literacy and experiences in prison other than education, including prison work assignments, library use, computer use, and reading frequency. Finally, the report looks at the relationship between literacy, criminal history, and current offense. The results show how the relationship between literacy, type of offense, expected length of incarceration, expected date of release, and previous criminal history has changed since 1992.”
Mental Health Problems of Prison and Jail Inmates (BJS 2006)
“At midyear 2005 more than half of all prison and jail inmates had a mental health problem, including 705,600 inmates in State prisons, 78,800 in Federal prisons, and 479,900 in local jails. These estimates represented 56% of State prisoners, 45% of Federal prisoners, and 64% of jail inmates. The findings in this report were based on data from personal interviews with State and Federal prisoners in 2004 and local jail inmates in 2002.Mental health problems were defined by two measures: a recent history or symptoms of a mental health problem. They must have occurred in the 12 months prior to the interview. A recent history of mental health problems included a clinical diagnosis or treatment by a mental health professional. Symptoms of a mental disorder were based on criteria specified in the Diagnostic and Statistical Manual of Mental Disorders, fourth edition(DSM-IV). More than two-fifths of State prisoners (43%) and more than half of jail inmates (54%) reported symptoms that met the criteria for mania. About 23% of State prisoners and 30% of jail inmates reported symptoms of major depression. An estimated 15% of State prisoners and 24% of jail inmates reported symptoms that met the criteria for a psychotic disorder.”
Mortality in Local Jails and State Prisons, 2000-2011 (BJS 2013)
“Presents national and state-level data on the number of inmate deaths that occurred in local jails and state prisons, how the deaths are distributed across jails, and an aggregate count of deaths in federal prisons. The report presents annual counts and 12-year trends between 2000 and 2011 for deaths in custody. It provides mortality rates and moving averages per 100,000 inmates in custody of jail or prison; details cause of death, including deaths attributed to homicide, suicide, illness, intoxication, and accidental injury; describes decedents’ characteristics, including age, race or Hispanic origin, sex, legal status, and time served; and specifies the state where the deaths occurred. Data sources include the Bureau of Justice Statistics’ Deaths in Custody Reporting Program (DCRP), initiated in 2000 under the Death in Custody Reporting Act of 2000 (P.L. 106-297), and the National Prisoner Statistics series.”
Report and Recommendations Concerning the Use of Restrictive Housing (DOJ 2016)
“The Report includes more than 50 “Guiding Principles,” which are intended as best practices for correctional facilities across the American criminal justice system. These aspirational principles are designed to serve as a roadmap for correctional systems seeking direction on future reforms, and address a range of topics, including the use of disciplinary segregation, protective custody, and long-term preventative segregation; the conditions of confinement in restrictive housing; and the treatment of certain categories of inmates, including juveniles (under 18), young adults (18 to 24), inmates with medical needs, pregnant women, LGBTI inmates, and inmates with serious mental illness. [pp. 94-103]”
Stress, Cognition, and Human Performance: A Literature Review and Conceptual Framework (NASA 2004)
“The following literature review addresses the effects of various stressors on cognition. While attempting to be as inclusive as possible, the review focuses its examination on the relationships between cognitive appraisal, attention, memory, and stress as they relate to information processing and human performance. The review begins with an overview of constructs and theoretical perspectives followed by an examination of effects across attention, memory, perceptual-motor functions, judgment and decision making, putative stressors such as workload, thermals, noise, and fatigue and closes with a discussion of moderating variables and related topics. In summation of the review, a conceptual framework for cognitive process under stress has been assembled. As one might imagine, the research literature that addresses stress, theories governing its effects on human performance, and experimental evidence that supports these notions is large and diverse. In attempting to organize and synthesize this body of work, I [Mark A. Staal] was guided by several earlier efforts (Bourne & Yaroush, 2003; Driskell, Mullen, Johnson, Hughes, & Batchelor, 1992; Driskell & Salas,1996; Handcock & Desmond, 2001; Stokes & Kite, 1994). These authors should be credited with accomplishing the monumental task of providing focused reviews in this area and their collective efforts laid the foundation for this present review. Similarly, the format of this review has been designed in accordance with these previous exemplars. However, each of these previous efforts either simply reported general findings, without sufficient experimental illustration, or narrowed their scope of investigation to the extent that the breadth of such findings remained hidden from the reader. Moreover, none of these examinations yielded an architecture that adequately describes or explains the inter-relations between information processing elements under stress conditions. It is the author’s hope that this review may provide an initial step toward this end.”
Staying Smart: How Today’s Graduates Continue to Learn Once They Complete College (Proj. Infor. Literacy 2016)
“This report presents findings about the information-seeking behavior of relatively recent college graduates used for lifelong learning in personal life, the workplace, and the local communities where they lived. Included are results from online surveys of 1,651 respondents and telephone interviews with 126 study participants who graduated from one of 10 US colleges and universities between 2007 and 2012. Findings indicated that most graduates needed to learn a combination of basic and complex life skills during the past year, such as money-management, how to make household repairs, and how to advance in their careers and communicate better on the job. They consulted friends, family, and coworkers almost as much as the Web. Graduates preferred information sources that had currency, utility, and interactivity. They also placed a high premium on curated information systems that were organized and kept up-to-date, such as libraries, museums, and bookstores. A model of shared utility is introduced for explaining graduates’ use of contemporary social media technologies as well as personal connections they had established with trusted allies. Graduates reported four barriers to their continued learning efforts: lack of time, finding affordable learning sources, staying on top of everything they needed to know, and staying motivated to keep learning after college. As a whole, graduates prided themselves on their ability to search, evaluate, and present information, skills they honed during college. Yet, far fewer said that their college experience had helped them develop the critical thinking skill of framing and asking questions of their own, which is a skill they inevitably needed in their post-college lives. Ten recommendations are presented for improving educational strategies, resources, and services that foster lifelong learning.”
Accessing Law: An Empirical Study Exploring the Influence of Legal Research Medium, 16 Vand. J. Ent. & Tech. L. 757 (2014)
“The legal profession is presently engaged in an uncontrolled experiment. Attorneys now locate and access legal authorities primarily through electronic means. Although this shift to an electronic research medium radically changes how attorneys discover and encounter law, little empirical work investigates impacts from the shift to an electronic medium. This Article presents the results of one of the most robust empirical studies conducted to date comparing research processes using print and electronic sources. While the study presented in this Article was modest in scope, the extent and type of the differences that it reveals are notable. Some of the observed differences between print and electronic research processes confirm predictions offered, but never before confirmed, about how the research medium changes the research process. This Article strongly supports calls for the legal profession and legal academy to be more attentive to the implications of the shift to electronic research.”
Altering Attention in Adjudication, 60 UCLA L. Rev. 1586 (2013)
“Judges decide complex cases in rapid succession but are limited by cognitive constraints. Consequently, judges cannot allocate equal attention to every aspect of a case. Case outcomes might thus depend on which aspects of a case are particularly salient to the judge. Put simply, a judge focusing on one aspect of a case might reach a different outcome than a judge focusing on another. In this Article, we report the results of a series of studies exploring various ways in which directing judicial attention can shape judicial outcomes. In the first study, we show that judges impose shorter sentences when information concerning the cost of incarceration is made available to them. In the second study, we demonstrate that judges assess the credibility of an expert witness more favorably when lawyers present an additional expert with similar, albeit notably weaker, credentials. In the third, we show that the format in which prosecutors present forensic testimony can alter judges’ assessments of that testimony’s probative value. Finally, we demonstrate that judges’ willingness to ignore inadmissible evidence in a criminal case is affected by both the gravity of the crime and the severity of police misconduct. In each of these studies, varying the context in which judges review evidence or altering the form in which that evidence is presented shifts judges’ attention and alters their decisions.”
Anchoring Legal Standards, SSRN (2016)
“This Article presents the first empirical study on the way in which irrelevant anchors influence the interpretation of vague legal standards. A large body of psychological research demonstrates that when people make judgments on a continuum, they are often affected by meaningless anchors. Building on this body of work, legal scholars have shown that judicial decisions related to remedies (i.e., damages and penalties) are also influenced by such anchors. This Article extends this insight and hypothesizes that the process of interpreting vague legal norms is subject to an anchoring effect as well. To test this hypothesis, the Article presents a series of stylized experiments that measure and compare participants’ interpretation of a vague norm after they have been exposed to irrelevant anchors. Overall, the results confirm the proposed hypothesis and suggest that the content of substantive legal rules might be altered by anchors. This effect is documented in numerous legal settings and across both expert (i.e., experienced lawyers) and non-expert (i.e., students) populations. Furthermore, the effect is shown to exist when participants express judgments about a hypothetical scenario and when they make decisions with ramifications for others. Based on these findings, the Article revisits several long-standing legal debates and reevaluates their conclusions.”
And the Winner Is: How Principles of Cognitive Science Resolve the Plain Language Debate, 80 UMKC L. Rev. 287 (2011)
“”Legalese – you mean jargon? Legal jargon? Terrible! Terrible!” – U. S. Supreme Court Justice Stephen G. Breyer, 2013. This statement captures the prevailing view in the teaching and practice of legal writing – that “legalese” is bad and must be eradicated and that plain language should be employed as the alternative to legalese. Yet defenders of legalese remain – and they argue that the language of the law is intertwined with the law itself, such that “simplifying” this language detracts from its meaning and makes it less precise. How, then, is a legal writer to write?
This article posits that the two different methods are not polar opposites, but rather are “endpoints” on the spectrum of language available to the legal writer. To explain this view, the article begins by reviewing what we mean by “legalese” vs. “plain language,” and how the one has fallen into disfavor while the other has become the prevailing method in legal writing pedagogy and practice. The article then undertakes a study of Cognitive Science, particularly Cognitive Fluency – the measure of how easy or difficult the mental process feels when the brain receives information. Fluency principles are critical to the understanding of the preference for plain language, which until now has been supported only by anecdotal and empirical surveys.
Applying fluency principles to legal writing, the article demonstrates that most of the time, plain language is, in fact, the right way to write, as it is “fluent” and thereby inspires feelings of ease, confidence, and trust in readers (whereas legalese is “disfluent,” engendering feelings of dislike and mistrust). The article suggests, however, that there are times when the legal writer’s analytical or persuasive goals may be served by more difficult, less fluent language – and that, going forward, an approach aimed at moderating fluency will produce the most effective legal writing. Thus, no language (except, maybe, “law French”) should be prohibited entirely, but all language should be considered as the range of options available to the skilled legal writer.”
Attention and Mental Performance in Confinement: Evidence from Cognitive Psychophysiology, 5 Adv. Space Biol. Med. 183 (1996)
“In summary, the results provide several lines of evidence for the assumption that confinement and isolation for a period of 60 days attenuate attentional capacity differentially during auditory classification: the extraction of information from low probability events, but not from high probability events, is decreased by attentional limitations. With the advent of automatic control systems there is an increasing number of operations which require the monitoring of information sources for low probability critical stimuli for extended periods of time. Given the functional similarities of the task employed in this study and the monitoring tasks in practical settings, the results of this study should be considered as a human factor concern for control operations taking place under conditions of confinement and isolation.”
Calibrating Legal Judgments, SSRN (2016)
“In ordinary life, people who assess other people’s assessments typically take into account the other judgments of those they are assessing in order to calibrate the judgment they are now assessing. The restaurant and hotel rating website TripAdvisor is exemplary, because it facilitates calibration by providing access to a rater’s previous ratings. This makes it possible to see whether a particular rating is coming from a rater who is enthusiastic about every place she patronizes, or from someone who is incessantly hard to please. And even when less systematized, as with the assessment of a letter of recommendation or a college transcript, calibration by recourse to the decisional history of those whose judgments we are assessing is a ubiquitous feature of ordinary life. Yet despite the ubiquity and utility of such calibration, the legal system seems perversely to reject it. Appellate courts do not openly adjust their standard of review based on the previous judgments of the judge whose decision they are reviewing, nor do judges who review legislative or administrative decisions, magistrates who evaluate search warrant representations, and even jurors who assess witness perception. In most legal domains, calibration by reference to the other decisions of the judgment being reviewed is invisible, either because it does not exist or because what reviewing bodies know informally is not something they are willing to admit to using. Appellate courts do not, at least openly, look more carefully at the decisions of a trial judge whose decisions are often reversed, and administrative law judges do not acknowledge examining the decisions of some administrators more closely because of what they know about the decisional history of that administrator. However common it is for ordinary people to attempt to calibrate the decisions of those on whom they rely, the law generally resists such calibration, implicitly prohibiting access to a reviewee’s decisional history and discouraging publicly acknowledging that a decisional history has played a role in a reviewer’s decision. Assisted by insights from cognitive psychology and philosophy, this Article examines law’s seeming aversion to calibration, and to explore what this aversion says about the nature of law and legal decision-making.”
Cognitive and Academic Functioning of Juvenile Detainees: Implications for Correctional Populations and Public Health, 20(1) J Correct Health Care 18 (2014)
“Cognitive functioning affects health. This study assessed cognitive functioning among participants in the Northwestern Juvenile Project, a stratified random sample of 1,829 newly detained juveniles (10 to 18 years old) from Cook County, Illinois. The study examined receptive vocabulary, oral reading, arithmetic computation skills, and general intellectual abilities. The sample exhibited impaired overall intellectual functioning and deficits in all areas. Males performed more poorly than females. More than three quarters of males showed below average overall intellectual functioning, and 9 in 10 had below average receptive vocabulary skills. Hispanic and African American males performed more poorly than non-Hispanic White males. The multiple systems that serve delinquent youth–correctional, health, legal, and rehabilitative–must collaborate to tailor needed services to the cognitive level of youth in the juvenile justice system.”
Cognitive Bias and the Evaluation of Forensic Evidence, Champion, May 2012, at 12
“Though hardly a new subject, discussion about the influence of cognitive bias on the evaluation of forensic science evidence has intensified recently. Academics have warned of the dangers of unconscious biases among forensic examiners for years, but their arguments have gained traction in light of some innovative research studies and the momentum for forensic reform brought about by the National Academy of Sciences’ 2009 report, “Strengthening Forensic Science in the United States: A Path Forward.””
Cognitive Bias Effects: Relevant to Forensic Science Examinations (Forensic Sci. Reg. 2015)
“2.1.1 A key requirement of the Forensic Science Regulator’s Codes of Practice and Conduct for Forensic Science Providers and Practitioners (the Codes) is that they “… act with honesty, integrity, objectivity and impartiality …” (p 9 bullet point 2). 2.1.2 However, many fields of forensic science include subjective assessment and comparison stages that are potentially susceptible to subconscious personal bias (cognitive contamination), which in turn could undermine the objectivity and impartiality of the forensic process. The focus of this appendix to the Codes is on providing general guidance on cognitive bias relevant to forensic examinations. It aims to show readers how to recognise cognitive bias and therefore help to safeguard against biasing effects, through adherence to good practice. This document also provides examples of good practice for specific subject areas listed in sections 0 to 11. However, it is not possible to cover every subject area or discipline, although cognitive bias has the potential to impact in almost any area where decision making is required.”
Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule, 103 Geo. L.J. 1543 (2015)
“The exclusionary rule generally bars the use of illegally obtained evidence in a criminal case, regardless of the defendant’s crime. However, using a combination of doctrinal analysis, social psychology theory, and original experimental data, this Article proposes a more cognitively complicated picture of how the rule may actually operate. In cases of egregious crime that people are highly motivated to punish, the exclusionary rule and its continually expanding exceptions present a fertile entry point for “motivated cognition,” a psychological process through which decision makers unknowingly reason toward their desired outcomes, seemingly within the constraints of the law.
In this series of experiments, when research participants acting as judges were faced with pivotal but illegally obtained evidence of a morally repugnant crime, they unknowingly construed the circumstances of the case in a manner that enabled them to invoke an exception to the exclusionary rule—thereby “cognitively cleansing” the tainted evidence to admit it and achieve their punishment goals without flouting the law. By contrast, when an identical illegal search uncovered evidence of a less reprehensible crime, participants were significantly more likely to suppress the evidence, construing the circumstances of the case to support the use of the exclusionary rule without exception. Even people’s judgments about the investigating police officers, who conducted exactly the same illegal search in both scenarios, depended on the egregiousness of the crime that the search happened to uncover. Critically, however, introducing awareness-generating instructions that alerted participants to the possibility that criminal egregiousness could drive their suppression judgments significantly curtailed the influence of this doctrinally irrelevant factor.
Contributing to a growing body of empirical research on cognitive pitfalls in legal decision making, the results of these studies highlight why the justice system should not turn a blind eye to covertly motivated applications of the exclusionary rule, or any legal doctrine that is susceptible to the motivated cognition effect. Aside from the benefits of stability and legitimacy that arise from applying legal rules in a predictable and transparent manner, the finding that decision makers set aside their personal punishment goals to more objectively adhere to the law when an instructional intervention cognitively equipped them to do so reflects a conscious choice worth recognizing. Illustrating how the tools of social psychology can be mobilized to reveal new normative dimensions of longstanding doctrinal debates and stimulate data-driven prescriptions for reform, this Article proposes a path toward more informed, consistent, and cognitively realistic applications of the law.”
Cognitive Fatigue and Complex Decision Making Under Prolonged Isolation and Confinement, 5 Adv. Space Biol. Med 309 (1996)
“Cognitive fatigue and subjective state were assessed in four healthy subject (three males and one female), confined for a period of 60 days in a hyperbaric chamber stimulating a space station environment. They were required to carry out daily a working memory/decision-making test, simulating the management of the levels of contaminants present in a spacecraft atmosphere. Information about a set of contaminants is presented on a ‘reference screen.’ This has to be memorized, then used to make decisions about the need for corrective action across a sequence of four ‘status screens.’ Subjects may check back to the reference information at any time. A low error rate was emphasized in the instructions and training. In addition to error rate, performance was also measured in terms of the time taken to make decisions and checks of reference screens (decision time and check time). Subjective measures were also made of workload and environmental resources (personal control and support), levels of anxiety and fatigue before the task, and cognitive effort expended during the task. The search for decrements during the second half of the isolation period was complicated by evidence of a continued learning process during the first half, probably because of insufficient practice before isolation. Learning curves (negative exponential functions) were fitted to the data points for the first half of the isolation period, and residuals between predicted and observed data for the second four weeks were analyzed. All subjects showed increases in decision time and check time during the last weeks of isolation, with one subject also showing an increase in errors. Workload levels were reported as moderate, but varied across the four subjects, the same was true for resources. Anxiety was low and relatively stable over the entire 60-day period, but fatigue levels were elevated during the second half. This was particularly true for the two subjects who maintained the required low error rate. Effort was also quite stable, through it tended to follow changes in work demands and fatigue. Individual subjects are seen to adapt to the stress of prolonged isolation in different ways. Two subjects maintained low error rates under increasing subjective demands by additional cognitive effort and slowing of performance. The other two subjects exhibit more widespread decrement, including high error rates, without increase in subjective demands. The analysis of individual patterns of adaptation is recommended as a way of understanding and predicting the impact of isolation and confinement during spaceflights.”
Cognitive Psychology of Circumstantial Evidence, 105 Mich. L. Rev. 241 (2006)
“Empirical research indicates that jurors routinely undervalue circumstantial evidence (DNA, fingerprints, and the like) and overvalue direct evidence (eyewitness identifications and confessions) when making verdict choices, even though false-conviction statistics indicate that the former is normally more probative and more reliable than the latter. The traditional explanation of this paradox, which is based on the probability-threshold model of jury decision-making, is that jurors simply do not understand circumstantial evidence and thus routinely underestimate its effect on the objective probability of the defendant’s guilt. That may be true in some situations, but it fails to account for what is known in cognitive psychology as the Wells Effect: the puzzling fact that jurors are likely to acquit in a circumstantial case even when they know the objective probability of the defendant’s guilt is sufficient to convict.
This Article attempts to explain why jurors find circumstantial evidence so psychologically troubling. It begins by using a variety of psychological research into judgment and decision-making – Kahneman & Tversky’s simulation heuristic in particular – to argue that jurors decide whether to acquit in a criminal case not through mechanical probability calculations, but on the basis of their ability to imagine a scenario in which the defendant is factually innocent. The Article then examines the basic epistemological differences between direct and circumstantial evidence and shows how those differences normally make it easier for jurors to imagine a factually exculpatory scenario in a circumstantial case. Finally, the Article concludes by discussing how an ease-of-simulation model of jury decision-making improves our understanding of why false verdicts occur.”
Confronting Cognitive “Anchoring Effect” and “Blind Spot” Biases in Federal Sentencing: A Modest Solution for Reforming a Fundamental Flaw, 104 J. Crim. L. & Criminology 489 (2014)
“Cognitive “anchoring effect” bias, especially related to numbers, like sentencing guidelines ranges, is widely recognized in cognitive psychology as an extremely robust and powerful heuristic. It is a cognitive shortcut that has a strong tendency to undermine judgments by “anchoring” a judgment to an earlier disclosed number, the anchor. Numerous studies prove anchoring bias produces systematic errors in judgment in wide-ranging circumstances, including judgments by experts — doctors, lawyers, real estate agents, psychologists, and auditors — as well as a variety of decisions by foreign and American federal and state judges. The anchoring effect occurs even when the anchor is incomplete, inaccurate, irrelevant, implausible, or even random. Roughly corresponding in time with the developing understanding of the anchoring effect, federal sentencing has undergone a revolution from judges having virtually unlimited discretion, to virtually no discretion, and back to considerable discretion, as the Federal Sentencing Guidelines went from mandatory to advisory in a single monumental U.S. Supreme Court decision, United States v. Booker, 543 U.S. 220 (2005). Surprisingly, since judges were granted much greater discretion in Booker, the length and severity of federal sentences, for the most part, has not changed. This remains true despite long-standing, persistent, and widespread dissatisfaction among federal district court judges with the Guidelines and the length of sentences. This Article argues that this is because judges’ sentences are subconsciously anchored by the calculated Guidelines range. This Article offers a simple, modest, and practical solution that requires no change in existing law by the Supreme Court or Congress. It simply requires rearranging the numerical anchoring information in the presentence report and adding additional relevant numerical information to counteract the anchoring effect of the Guidelines. If federal district court judges are educated about the effect of cognitive anchoring and their own bias-based blind spots to it — their improved awareness can only enhance the fairness of sentencing.”
Contextual Information Renders Experts Vulnerable to Making Erroneous Identifications, 156(1) Forensic Sci Int. 74 (2006)
“We investigated whether experts can objectively focus on feature information in fingerprints without being misled by extraneous information, such as context. We took fingerprints that have previously been examined and assessed by latent print experts to make positive identification of suspects. Then we presented these same fingerprints again, to the same experts, but gave a context that suggested that they were a no-match, and hence the suspects could not be identified. Within this new context, most of the fingerprint experts made different judgements, thus contradicting their own previous identification decisions. Cognitive aspects involved in biometric identification can explain why experts are vulnerable to make erroneous identifications.”
Cosmetic Psychopharmacology for Prisoners: Reducing Crime and Recidivism Through Cognitive Intervention, 8 (3) Neuroethics 315 (2015)
“Criminologists have long acknowledged the link between a number of cognitive deficits, including low intelligence and impulsivity, and crime. A new wave of research has demonstrated that pharmacological intervention can restore or improve cognitive function, particularly executive function (including the inhibition of impulsive response), and restore neural plasticity. Such restoration and improvement can allow for easier acquisition of new skills and as a result, presents significant possibilities for the criminal justice system. For example, studies have shown that supplements of Omega-3, a fatty acid commonly found in food such as tuna, can decrease frequency of violent incidents in an incarcerated population. Research has also begun to explore the use of selective serotonin reuptake inhibitors (SSRIs) to reduce impulsivity in some violent offenders. However, there are significant legal and ethical implications when moving from dietary supplements to prescription pharmaceuticals and medical devices for cognitive intervention. This paper will explore the legal and ethical issues surrounding the use of pharmacological intervention on prisoners as an effort to reduce crime and recidivism.”
Cruel and Unequal Punishments, 86 Wash. U. L. Rev. 859 (2009)
“This article argues Atkins and its progeny of categorical exemptions to the death penalty create and new and as of yet undiscovered interaction between the Eighth and the Fourteenth Amendment of the U.S. Constitution. The United States Supreme Court, the legal academy and commentators have failed to consider the relationship between the Cruel and Unusual Punishments Clause and the Equal Protection Clause that the Court’s new Eighth Amendment jurisprudence demands. This article puts forth a new synthesis of these two clauses, and demonstrates how the Court’s new Eighth Amendment jurisprudence has remarkable Fourteenth Amendment implications. To see the point in practice, one need only consider two criminal defendants: the first was mentally retarded from birth; the second suffered a traumatic brain injury at the age of 22; and both have identical cognitive, behavioral, and adaptive impairments. Under state statutes cited approvingly in Atkins and others enacted since, the first defendant cannot be executed, but the second one can. This seems wrong on its face, but to understand why, it is necessary to explore the interaction of the Eighth and Fourteenth Amendments. The doctrinal shift in Atkins has profoundly altered that interaction, and a new synthesis is required.
Part I analyzes the Supreme Court’s Eighth Amendment proportionality analysis from its inception in punishment-to-crime cases through its more recent punishment-to-culpability cases, revealing the abandonment of critical elements of earlier proportionality analysis in its new punishment-to-culpability cases. Part II reviews the legislative enactments promulgated and sustained in response to Atkins, and demonstrates a dual failure in Atkins, which paved the pathway for a new Eighth and Fourteenth Amendment interaction. Part III demonstrates, by example, medical conditions with nearly identical clinical manifestations as the medically defined category mentally retarded, but that are excluded from legal definitions of mental retardation adopted pursuant to Atkins. The striking similarity between the conditions discussed in Part III and the medically defined category mentally retarded make plain the arbitrariness of an Eighth Amendment fundamental right that turns on categorical exemptions. Finally, Part IV explains how the legislative schemes at issue violate the Equal Protection Clause of the Fourteenth Amendment, and how categorical exemptions to the Eighth Amendment create this new interaction.”
Cruel and Unusual Phenomenology of Solitary Confinement, Front. Psychol., June 12, 2014
“The concept of self or person that the liberal tradition sets up as having dignity and demanding respect is a standard that treats the self as a stand-alone individual capable of autonomous deliberation and decision (see e.g., Code, 2011). Both phenomenology and science shows this to be an abstraction that fails to recognize the relational nature of the self with embodied, experiential, and affective dimensions, complicated by narrative, extended and situated aspects of human existence. Solitary confinement morally degrades human dignity by literally degrading (if not destroying) the human self in all of these aspects, starting with the deeply relational dimension. Ethically and practically speaking, this multi-dimensional, relational self is the only viable concept of self that the liberal tradition should use to measure its own practices pertaining to dignity, respect, and justice. If we destroy the self in its full pattern, or in a sufficient number of its aspects, it would be difficult to argue that we are respecting the person in any moral sense and not degrading the dignity of the human being.”
Cultivating Judgment on the Tools of Wrongful Conviction, 68 SMU L. Rev. 1073 (2015)
“Wrongful conviction remains a vexing problem. There are hundreds of reports of wrongful convictions from across the country, and the reasons for these mistakes run the gamut from faulty forensic science, to mistaken eyewitness identifications, to police or prosecutor misconduct. Yet establishing the legal or factual error necessary to achieve exoneration in these cases can be tremendously difficult. Wrongfully convicted defendants face a number of hurdles. Not only must they discover significant factual or legal error, but they also are straightjacketed by procedural impediments and appellate judges’ limited abilities to right wrongful convictions. Wrongfully convicted defendants are further constrained by a generally limited understanding of the sources of wrongful conviction and some legal decisionmakers’ reluctance to accept the significance of the wrongful conviction problem.
This Article outlines the major contributors to wrongful conviction and describes some procedural hurdles to reversing these convictions. It argues that, although there has been significant progress in addressing some of these problems, there is still more work to do in this area. Perhaps most important is educating legal decisionmakers and changing the culture of turning a blind eye to the problem. And this education should extend further than to just the possible sources of wrongful conviction. As conviction tools evolve, judges need to be able to stay abreast of new possible sources of error. Accordingly, judges, as well as other legal decisionmakers, should learn how to critically assess the tools of conviction — how to read the literature on which fingerprint evidence is based or review studies blowing holes in the infallibility of eyewitness testimony, for example. Also critical to this education is furthering the research upon which it is based. As many recent exonerations have demonstrated, many of our tools of conviction require a more substantial scientific footing — especially if we are going to base the deprivation of life or liberty upon this evidence. Understanding the pernicious role of explicit and implicit biases in legal decisionmaking, too, is central to understanding the wrongful conviction problem and beginning to address it. This education, along with a willingness to accept that there is a problem, is the necessary foundation for mitigating the perpetuation of a system tolerant of wrongful convictions.”
Death and Rebirth of Codes of Legal Ethics: How Neuroscientific Evidence of Intuition and Emotion in Moral Decision Making Should Impact the Regulation of the Practice of Law, 28 Geo. J. Legal Ethics 323 (2015)
“The only constant in the regulation of legal ethics in the United States has been change. With the adoption of the Model Rules of Professional Conduct, the legal profession as a whole has arrived at a rationalist model for the regulation of the practice of law because the Model Rules are rules of reason. The problem is that recent evidence from the field of moral cognitive neuroscience suggests that individuals commonly resort to irrational thinking when making moral decisions by drawing upon intuition and emotion when faced with ethical dilemmas. This evidence validates various theories and models about moral decision making from other disciplines, and it complicates the regulation of legal ethics because rational rules are currently being used to govern what is at least in part irrational thinking.
This article argues that the legal profession should begin taking a dual process approach to regulating legal ethics because it better conforms to how people make moral decisions through a mix of both intuition and reason. This article concludes that an approach that is similar to the Model Code of Professional Responsibility is the best model for regulating the practice of law because such an approach entails both ethical standards and rules for purposes of regulating ethical behavior. Such an approach is superior because it appeals to irrational, intuitive thinking through standards and rational thinking through rules. In essence, it offers a dual process model for formulating and enforcing codes of legal ethics that mirrors how individuals think in making moral decisions.
This approach is superior to either rationalist or intuitionist approaches because it sets basic rules for lawyers while using standards to fill in the gaps and ambiguities that invariability exist in and among rules. Clients and others dealing with lawyers are better protected because this dual process approach provides a comprehensive system of regulation. In addition, society is likely to be more comfortable with such an approach because a system of regulation can be created that engages and satisfies society’s collective intuitions and reasoning about what is permissible in the practice of law. Under a dual process approach, clear mandates should trump intuition and emotion, and the specificity of rules should be honored above broad standards and norms. In addition, a system employing a dual process approach to regulating the practice of law should also be updated regularly to reflect evolving intuitions regarding what is just. The time has come to conform legal ethics to scientific reality and to offer a system of professional regulation that is state of the art.”
Don’t Believe Everything You Think: Cognitive Bias in Legal Decision Making, 9 Clinical L. Rev. 783 (2003)
“This article discusses the role of cognitive bias in legal decisionmaking. Drawing on research in cognitive science and law, it explores the impact of cognitive bias on both lawyers and clients. These often subtle mental biases can lead to pervasive errors in decisionmaking by causing us to ignore important information and make inaccurate predictions. They may lead a client to underestimate the risk of litigation. They may also lead a lawyer to miscategorize a client’s value choice as a misjudgement of fact. The article offers illustrative stories of the impact of bias on both client and lawyer and suggests how to identify and attenuate these biases. It closes with the reminder that careful study and reflection will make us better legal counselors, but a precise analysis of lawyerly judgement still eludes us.”
Eighth Amendment Analysis of Statutes Allowing or Mandating Transfer of Juvenile Offenders to Adult Criminal Court in Light of the Supreme Court’s Recent Jurisprudence Recognizing Developmental Neuroscience, 3 Virginia J. Crim. L. 1 (2015)
“In analyzing the constitutionality of statutes allowing the State to charge a juvenile offender as an adult without a hearing, courts have consistently rejected Constitutional challenges using a due process analysis. Over the last decade, Supreme Court cases banning the juvenile death penalty, banning juvenile life without parole for non-homicides and banning mandatory juvenile life without parole for cases including homicide were decided using an Eighth Amendment analysis. This article argues that, given the Supreme Court’s recognition of developmental neuroscience, juvenile transfer statutes should be reevaluated using an Eighth Amendment analysis. All procedures pursuant to which juveniles are transferred to adult court should be subject to Eighth Amendment scrutiny.”
Electronically Manufactured Law, 22 Harv. J. Law & Tech. 223 (2008)
“We increasingly communicate and experience law through an electronic medium. Existing scholarship suggests that prior changes in the communication of law – from oral to scribal, scribal to moveable type, the widespread publication of cases – influenced the development of the law, including by contributing to the rise of basic concepts such as precedent. One element of the present shift in the communication of law is that the process by which we find the law has been transformed. Specifically, legal case research, once conducted exclusively through the use of print-based resources (reporter volumes, case digests, treatises), is now conducted primarily through searches of electronic legal databases. This Article employs principles of cognitive psychology to generate empirical predictions about how the shift from a print-based to an electronic research process changes researcher behavior and research outcomes. The Article then assesses the broader impacts of these changes with respect to the content and practice of law.
Specifically, the Article identifies three changes to the research process that are salient for predicting the broader impacts of the shift from print-based to electronic research: (1) Electronic researchers are not guided by the key system to the same extent as print researchers when identifying relevant theories, principles, and cases; (2) Electronic researchers do not encounter and interpret individual cases through the lens of key system information to the same extent as print researchers; and (3) Electronic researchers are exposed to more and different case texts than print researchers. The Article then considers these basic changes in light of principles of cognitive psychology, including the influence of labeling, categorization, and confirmatory bias on understanding, and offers empirical predictions about the impacts of the shift from print-based to electronic research.
First, the Article predicts that the shift to electronic research gives rise to “diversity in framing.” There will be greater divergence between researchers with regard to the theories and principles identified as potentially applicable to a set of facts and this will lead to greater disputes about what is in dispute. Second, the Article predicts that the shift to electronic research leads to more “tilting at windmills.” Researchers will have greater difficulty making accurate judgments about whether an argument has merit and will thus advance marginal theories and cases with greater frequency.
Each of these predicted changes gives rise to broader impacts on the law. In an adversarial system, judicial options for case resolution are largely defined – and constrained – by the theories proffered by counsel. Diversity in framing would expand judicial authority by providing judges with a wider variety of options for the resolution of disputes. This underlines the way in which counsel serve as gatekeepers by exercising independent judgment about which cases and theories have sufficient merit to warrant pursuit. Increased tilting at windmills may require critical reexamination of the existing limits placed on lawyers in their role as gatekeepers – such as Federal Rule of Civil Procedure 11 – to prevent a waste of judicial and client resources. A follow-up article will test the “diversity in framing” and “tilting at windmills” predictions.”
Emotion, Proof and Prejudice: The Cognitive Science of Gruesome Photos and Victim Impact Statements, 46 Ariz. St. L.J. 1003 (2014)
“The current framework for sorting the probative from the prejudicial considers “emotion” to be the hallmark of unfair prejudice. Emotions elicited by evidence are thought to “inflame” the jury and “cause them to abandon their mental processes.” This inaccurate view of emotion as the enemy of rationality is problematic for evidence law. We argue for a more sophisticated and nuanced view of emotion’s role in evaluating proof and prejudice. We use two types of evidence to illustrate our argument: gruesome photos and victim impact statements.
As some scholars have noted, emotional responses to evidence are not necessarily prejudicial responses. But this observation captures only a small part of the problem with the current evidentiary framework. Emotions do not always lead to prejudice, but they can lead to prejudice in more complex and subtle ways than previously recognized. The emotions elicited by evidence affect not only the decision maker’s appraisal of the evidence, but also the process of deliberation. For example, anger toward the defendant elicited by victim impact statements may result in an inability to remain open to evidence favoring the defense, to greater certainty about the verdict, and to a desire to punish. Other emotions, such as sadness or sympathy, have other effects on the deliberative process.
Conversely, emotional responses to evidence play a role in assessing probative value, and this function of emotion receives little or no recognition in evidentiary discourse. For example, to determine whether a gruesome photo is unduly prejudicial, it is also necessary to consider whether the photo contributes any additional value to the deliberative process beyond the medical examiner’s testimony. Without accounting for the role of emotion in the reasoning process, it is difficult to examine how the medium affects the message. The value added lies in the photo’s additional persuasive power, which is closely tied to its emotional impact.
Whether the emotions evoked by evidence interfere with deliberation depends on what emotions the evidence evokes, how they affect the deliberative process, and what the deliberative process is meant to accomplish. We argue that the cognitive sciences, including psychology and neuroscience, can shed substantial light on the first and second of these questions. The third is a legal question, but one that should be informed by a more informed and realistic understanding of decisional dynamics.”
Examination of the Basic Reading Skills of Incarcerated Males, 21(3-4) Adult Learning 4 (2010)
“One of the most common characteristics prison inmates typically share is unsuccessful educational experiences including dropping out of school, repeating grades, and not gaining basic literacy skills. The most recent National Assessment of Adult Prison Literacy Survey (NAAPLS) by the U.S. Department of Education indicates that large disparities in reading skills exist between U.S. prisoners and adults in U.S. households. Understanding basic reading levels of inmates is important in determining where to start with basic reading instruction and pre-GED skills. The purpose of this study was to assess the reading skills of adult male prisoners in a medium security prison in Alabama. The basic reading skills assessed included: (a) word identification; (b) word attack, and; (c) reading comprehension. Results indicate significant differences in reading skills of inmates by race and age. (Contains 4 tables.)”
Forensic Confirmation Bias: Problems, Perspectives, and Proposed Solutions, 2 J. Appl. Res. Mem. Cogn. 42 (2013)
“As illustrated by the mistaken, high-profile fingerprint identification of Brandon Mayfield in the Madrid Bomber case, and consistent with a recent critique by the National Academy of Sciences (2009), it is clear that the forensic sciences are subject to contextual bias and fraught with error. In this article, we describe classic psychological research on primacy, expectancy effects, and observer effects, all of which indicate that context can taint people’s perceptions, judgments, and behaviors. Then we describe recent studies indicating that confessions and other types of information can set into motion forensic confirmation biases that corrupt lay witness perceptions and memories as well as the judgments of experts in various domains of forensic science. Finally, we propose best practices that would reduce bias in the forensic laboratory as well as its influence in the courts.”
Full Disclosure: Cognitive Bias, Informants, and Search Warrant Scrutiny, 47 Akron L. Rev. 431 (2013)
“This article posits that cognitive biases play a significant role in the gap between the rhetoric regarding Fourth Amendment protection and actual practices regarding search warrant scrutiny, particularly for search warrants based on informants’ tips. Specifically, this article examines the ways in which implicit bias, tunnel vision, priming, and hindsight bias can affect search warrants. These biases can affect each stage of the search warrant process, including targeting decisions, the drafting process, the magistrate’s decision whether to grant the warrant, and post-search review by trial and appellate courts. These biases create room for informant falsehoods to go unchecked, with a likely disproportionate effect on minority communities. To address these effects, the article proposes a number of interconnected solutions, all revolving around the idea of full disclosure. The article proposes that police officers, magistrates, and judges all receive education about cognitive biases generally and the value of meaningful judicial review of warrants for combatting these biases. To facilitate this review, police should use a checklist when preparing search warrant applications to help them identify and disclose all relevant information. The article then suggests changes for judicial review of challenges to the accuracy and completeness of search warrant information. These revised standards should incentivize providing full disclosure and to ensure meaningful post-search review of magistrates’ decisions.”
Good Fight: The Egocentric Bias, The Aversion to Cognitive Dissonance, and American Criminal Law, 22 J. L. & Pol’y (2014)
“The phrase “cognitive bias” often has negative connotations. It is something to be overcome, thwarted, or, at best, circumvented. In this essay, I [Daniel S. Medwed] suggest that two interrelated cognitive biases — the egocentric bias and the aversion to cognitive dissonance — might instead serve as potential assets for a criminal law practitioner in persuading her constituencies.”
“He Got in My Face So I Shot Him’: How Defendants’ Language Impairments Impair Attorney-Client Relationships, 17 CUNY L. Rev. 69 (2014)
“Language impairments — deficits in language and the ability to use it — occur at starkly elevated rates among adolescents and adults charged with and convicted of crimes. These impairments have serious ramifications for the quality of justice. In this article, we focus specifically on the effects of a client’s language impairment on the attorney-client relationship, the constitutional realm that suffers most when a client lacks essential communication skills. The effects of language impairment can be seen in a client’s ability to work with a lawyer in the first place, tell a story, comprehend legal information, and make a rational and informed decision. This article shows how these effects play themselves out within the attorney-client relationship, and the impact on the lawyer’s ability to meet her constitutional and ethical obligations. We also propose concrete steps for improving the quality of communication within the attorney-client relationship. While attorneys will obviously shoulder much of the responsibility, judges and prosecutors are not exempt. A client’s poor communication skills are not simply “the lawyer’s problem,” but a matter of great concern for all stakeholders in the justice system.”
Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law, 66 Ala. L. Rev. 1099 (2015)
“What would the law do differently if it could see into the black box of the mind? One of the most valuable things it might do is reform the ways it deals with pain. Pain is ubiquitous in law, from tort to torture, from ERISA to expert evidence. Yet legal doctrines grapple with pain poorly, embodying concepts that are generations out of date and that cast suspicion on pain sufferers as having a problem that is “all in their heads.”
Now, brain-imaging technologies are allowing scientists to see the brain in pain — and to reconceive of many types of pain as neurodegenerative diseases. Brain imaging proves that the problem is in sufferers’ heads: Long-term pain shrinks the brain and changes the way it functions.
This new science has immediate practical and theoretical applications for the law. This Article first proposes reforms to disability law doctrines and their judicial interpretation. It then proposes ways in which pain neuroimaging ought to be handled as a matter of expert evidence in state, federal, and administrative proceedings. Drawing on work in evidence theory, it considers black letter evidence law as well as normative practices that shape how decision makers weigh evidence and credibility. It also offers limits on the use of brain images.
In opening a window into how the brain generates subjective experiences, neuroimaging should lead to doctrinal and practice-based revisions that increase law’s accuracy and fairness. So doing, brain imaging should change the law’s mind about the nature of pain and may require the law to rethink its dualism between body and mind.”
Improving Prosecutorial Decision Making: Some Lessons of Cognitive Science, 47 Wm. &Mary L. Rev. 1587 (2006)
“This Article draws on cognitive psychology to develop a new explanation for prosecutorial misconduct. Traditionally, commentators have clothed the study of prosecutorial decision making in the rhetoric of fault. They have attributed overcharging, undisclosed exculpatory evidence, and convictions of the innocent to bad prosecutorial intentions and widespread prosecutorial wrongdoing. This fault-based lens colors both the description of the problem and the recommended solutions. In the language of fault, the problem is a culture that values obtaining and maintaining convictions over justice. The solution is to change prosecutorial values through, for example, more stringent ethical rules and increased disciplinary proceedings and sanctions against prosecutors.
In this Article, I [Alafair S. Burke] attempt instead to explain prosecutorial decision making from a cognitive perspective. I argue that even virtuous prosecutors can make normatively inappropriate decisions that result, not from flawed values, but from limits in human cognition. Prosecutors make what appear to be irrational decisions because all human decision makers share a common set of information-processing tendencies that depart from perfect rationality. In comparison to a fault-based approach, a cognitive description of the problem complicates the road for corrective action. If prosecutors fail to achieve justice not because they are bad, but because they are human, what hope is there for change?
In three Parts, this Article attempts to explain how cognitive bias can affect the exercise of prosecutorial discretion and to suggest some initial reforms to improve the quality of prosecutorial decision making. Part I summarizes four related cognitive phenomena: confirmation bias, selective information processing, belief perseverance, and the avoidance of cognitive dissonance. Part II explores how these cognitive biases might adversely affect the exercise of prosecutorial discretion. Part III proposes a series of reforms that might improve the quality of prosecutorial decision making, despite limits on rationality.”
‘In the Wasteland of Your Mind’: Criminology, Scientific Discoveries and the Criminal Process, SSRN (2016)
“This paper addresses a remarkably-underconsidered topic: the potential impact of scientific discoveries and an increased understanding of the biology of human behavior on sentencing decisions in the criminal justice system, specifically, the way that sentencing has the capacity to rely on scientific evidence (such as brain imaging) as a mitigating factor (or perhaps, in the mind of some, as an aggravating factor) in determining punishment.
Such a new method of evaluating criminality, we argue, can be beneficial not only for the defendant, but also for the attorneys and judge involved in the case. If used properly, it may help to provide a more truly objective set of factors that contribute to an individual’s particular offending patterns, rather than continuing reliance on sentencing schemes that are swayed by societal bias and prejudice. However, it can become problematic if a legal system relies too heavily on untested theories, and even more problematic in cases in which science does not support legal conclusions. Scientific discovery moves faster than the law, and it is critical to make sure that the legal system is given an opportunity to catch up, rather than risk allowing “junk science” to influence how a defendant is treated.
In this paper, we first examine criminal sentencing procedures, and discuss how a criminological view of a defendant’s offending behavior can work to mitigate harshly inappropriate sentences; in this context, we consider how Federal Sentencing Guidelines cases consider the significance of mental disability in sentencing decisions, especially in the aftermath of the Supreme Court’s decision in United States v. Booker. Then we review recent work on the biological bases of certain criminal behaviors and how it can be captured through brain imaging. Next, we consider how the use of such evidence continues to expand in the criminal trial process. Following this, we look at how the school of therapeutic jurisprudence can better inform how the legal system incorporates such evidence. Finally, we offer our recommendations for ensuring that scientific evidence is introduced appropriately in the legal system.”
Ineffective Assistance of Library: The Failings and the Future of Prison Law Libraries, 101 Geo. L.J. 1171 (2013)
“The prison law library has long been a potent symbol of the inmate’s right to access the courts. But it has never been a practical tool for providing that access. This contradiction lies at the core of the law library doctrine. It takes little imagination to see the problem with requiring untrained inmates, many of them illiterate or non-English speakers, to navigate the world of postconviction relief and civil rights litigation with nothing more than the help of a few library books. Yet law libraries are ubiquitous in American prisons. Now, in light of a technological revolution in legal research methods, prison libraries face an existential crisis that requires prison officials, courts, scholars, and inmates to reconsider the very purpose of the prison law library. This Article takes up that challenge by providing a novel historical account of the prison law library’s development.
This Article uses original historical research to show how prison law libraries arose, not as a means of accessing the courts, but rather as a means of controlling inmates’ behavior. By placing the origin of the prison law library in the first decades of the twentieth century — half a century earlier than typical accounts — this Article shows how the law library evolved to take on a new purpose in the 1960s and 1970s, when the Supreme Court and other courts first began to fashion a law library doctrine. The central argument of this Article is simple: The courts’ attempts to graft an access-to-courts rationale onto a law library system that had developed for other purposes led to a law library doctrine riddled with contradictions and doomed to failure. This historical account helps explain a prison law library system that never really made sense in terms of providing access to the courts. As prisons look to update their law libraries in light of sweeping technological changes, it is all the more important to understand the history of the law library system so that authorities can plan for its future.”
‘Infinity Goes Up on Trial’: Sanism, Pretextuality, and the Representation of Defendants with Mental Disabilities, SSRN (2016)
“This paper, presented to the mid-winter meeting of the National Association of Criminal Defense Lawyers (Austin, TX, 2/18/16), explains why it is essential for lawyers representing criminal defendants with mental disabilities to understand the meanings and contexts of sanism – a largely invisible and largely socially acceptable irrational prejudice of the same quality and character of other irrational prejudices that cause (and are reflected in) prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry – and pretextuality – the means by which courts regularly accept (either implicitly or explicitly) testimonial dishonesty, countenance liberty deprivations in disingenuous ways that bear little or no relationship to case law or to statutes, and engage similarly in dishonest (and frequently meretricious) decision making, specifically where witnesses, especially expert witnesses, show a high propensity to purposely distort their testimony in order to achieve desired ends – and to show how these two factors infect all aspects of the criminal process.
It further discusses how it is also necessary to understand the power of cognitive-simplifying heuristics and false “ordinary common sense” in decision making in these cases, and how defense lawyers often fall prey to the same prejudices that plague judges, prosecutors, jurors, the media and the general public. It concludes by discussing the school of thought known as therapeutic jurisprudence, and why that approach is the only way that the sanist and pretextual facade can be stripped from the criminal justice system, giving lawyers the opportunity to provide best possible representation for their clients.”
Information Avoidance, SSRN (2015)
“We commonly think of information as a means to an end. However, a growing theoretical and experimental literature suggests that information may directly enter the agent’s utility function. This can create an incentive to avoid information, even when it is useful, free, and independent of strategic considerations. We review manifestations of information avoidance as well as theoretical and empirical research on reasons for why people avoid information, drawing from economics, psychology, and other disciplines. The review concludes with a discussion of some of the diverse (and costly) individual and societal consequences of information avoidance.”
Judicial Decisionmaking, Empathy, and the Limits of Perception, 47 Akron L. Rev. 693 (2014)
“This Article evaluates recent cognitive science scholarship and applies to judicial decisionmaking an understanding of how humans make decisions, connect with, and make sense of the world. Cognitive science has revealed that decisions that we believe to be based on careful, neutral, logical reasoning may actually be guided by implicit biases and unexamined frameworks of thinking. As recent studies have demonstrated, even the judgments of highly qualified judges are affected by cognitive illusions. Thus, an understanding of how humans comprehend the world — how we process new information and how our underlying values, beliefs, and past experiences translate new experiences — necessarily informs our understanding of how judges make decisions. This Article challenges the assumption and aspiration of neutrality in judging and proposes an approach in line with emerging research from cognitive science. Judicial empathy — the cognitive capacity to imagine the perspective of another person — is a tool that can mitigate the inevitable implicit biases each judge brings to the bench. By exploring the influence of implicit biases on decisions that demand a finding of “reasonableness,” such as in Fourth Amendment, discrimination, criminal, and Establishment Clause cases, this Article argues that judicial empathy is necessary to move judges away from their own biased vantage point.”
Justice Without ‘Bounds’ and the Poverties of Confinement, N.Y.L.J., Sept. 23, 2014, at 5
“Every step in information evolution has brought literacy and enlightenment, from the discovery of language and writing to the invention of printing and computing. Each stride forward has left behind the poor, the punished and the confined. The ideas behind the right to counsel and the right to libraries have historically and mistakenly been treated as separate. Today, the revelations of science and technology impel the recognition of both as one.”
Killing Them Softly: Neuroscience Reveals How Brain Cells Die from Law School Stress and How Neural Self-Hacking Can Optimize Cognitive Performance, 59 Loy. L. Rev. 791 (2013)
“Law is a cognitive profession and the legendary stressors in legal education and the practice of law can take a tremendous toll on cognitive capacity. Lawyers suffer from depression at triple the rate of non-lawyers. This article provides a groundbreaking synthesis on the neuroscience of achieving optimal cognitive fitness for all law students, law professors, and lawyers.
A number of innovative companies have instituted programs designed to enhance the bottom line. Research shows that perks such as onsite gyms, stress management classes, and mindfulness training produce vibrant workplaces and thriving employees. Forward-looking law schools have created wellness programs designed to relieve law student stress and improve well-being. This article explains the neurobiological reasons these programs enhance employee performance and improve student achievement.
Law school admissions are down, students are questioning the value of legal education, and the Carnegie Report is pressuring law schools to make legal education more practical. Learning about the neuroscience of cognitive wellness is critical to protecting brain function and enhancing cognitive performance. Legal educators have the power to bring this information to the attention of their law students, and to create a neuroscience-powered achievement culture in law schools. Law students need not wait for lethargic faculty deliberation of the impact a stressful law school learning environment has on their learning. Their professional identity, along with their capacity to build practice skills and a legal knowledge base, are at risk. Law students, law faculty, and lawyers should be educated about mitigating stress-related damage to the hippocampus, the role of sleep in memory formation, and enhancing cognitive function with exercise and contemplative practices.
Neural self-hacking is likely to be the newest fitness movement. Law schools and law firms that want to support robust cognitive performance for their constituents will follow Google’s lead and create achievement cultures designed to optimize cognitive wellness and limit sources of stress. With fresh insights into the complex world of brain function, this article explains brain structure; describes the parts of the brain used in cognition; and details how stress damages and kills brain cells. Neuroscience-based recommendations uncover the power of self-directed neuroplasticity in every law student, law professor, and lawyer to optimize cognition.”
Legal Information and the Search for Cognitive Authority, 88 Cal. L. Rev. 1673 (2000)
“In the 20th Century legal information presented a stable universe of cognitive authority. Law, divided into primary and secondary sources, was a well charted area. Certain sets of books were accepted as institutional authority in legal research, even though they were the products of commercial publishers. This system, which was built around print products, is collapsing. In the midst of this collapse new sources will be defined, but the process is complicated by an information generation gap. This essay will explore the old world of print sources, how they were used, how and why they are collapsing, and what comes next. It ends with a cry for help.”
Loyalty to One’s Convictions: The Prosecutor and Tunnel Vision, 49 How. L.J. 475 (2006)
“This essay, written as part of a symposium on loyalty, examines the dynamics leading to the disturbing phenomenon of prosecutorial tunnel vision. Specifically, it asks why prosecutors become loyal to a particular version of events – the guilt of a particular suspect – even when that version of events has been discredited. The essay begins with an examination of the concept of loyalty and the ambiguities inherent in that concept. It next discusses the relevance of these ambiguities to the divided loyalties of the prosecutor within the complex group dynamics of the prosecutor’s office. It then considers the prosecutor’s divided loyalties as one aspect of the larger issue of divided loyalties within the adversary system. Finally, it draws on psychological insights, particularly from the field of cognitive neuroscience, to place these conflicts in the broader context of loyalty to one’s beliefs. It concludes by suggesting that reforms are more likely to succeed when they recognize and attempt to ameliorate our ingrained and tenacious loyalty to pre-existing beliefs.”
Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995 (2000)
“Mental decrepitude and incapacity have troubled the United States Supreme Court from the 1790s to the 1990s. The history of the Court is replete with repeated instances of justices casting decisive votes or otherwise participating actively in the Court’s work when their colleagues and/or families had serious doubts about their mental capacities. Contrary to conventional wisdom among legal scholars and historians, a thorough survey of Supreme Court historiography reveals that mental decrepitude has been an even more frequent problem on the twentieth-century Court than it was during the nineteenth. The historical evidence convincingly demonstrates that mental decrepitude among aging justices is a persistently recurring problem that merits serious attention.”
Mental Doping: The Untold Story of Modern Law School. Exams, Student Law., Jan. 2010, at 17
“The problem is framed here as one of abuse, focusing on the subjective intent (mens rea, if you will) of the drug taker; law students who “game” the system to get legally—yet ethically questionable—Adderall prescriptions. These Adderall abusers take the drug with the knowledge that it is not needed to simply “level the playing field,” but with the intent to gain an advantage through “cognitive enhancement.””
Navigating the Pitfalls of Implicit Bias: A Cognitive Science Primer for Civil Litigators, 4 St. Mary’s J. Legal Mal. & Ethics 278 (2014)
“Cognitive science has revealed that past experiences and prior assumptions, even those of which we are not conscious, greatly influence how humans perceive the world. Emerging research has demonstrated that attorneys and judges, like everyone else, are the products of their gender, ethnicity, race, and socioeconomic status. As a consequence, legal decisionmaking is susceptible to the subtle influences of implicit bias. Effective and ethical client advocacy requires an attorney to understand how her own implicit biases will affect her interactions with clients. An attorney should also acknowledge that implicit biases may affect a judge’s interpretation of her client’s story and legal arguments. This Article explains how insights from cognitive science should inform an attorney’s representation of clients in civil litigation.”
Neuroprediction: New Technology, Old Problems, 8 Bioethica Forum 128 (2015)
“Neuroprediction is the use of structural or functional brain or nervous system variables to make any type of prediction, including medical prognoses and behavioral forecasts, such as an indicator of future dangerous behavior. This commentary will focus on behavioral predictions, but the analysis applies to any context. The general thesis is that using neurovariables for prediction is a new technology, but that it raises no new ethical issues, at least for now. Only if neuroscience achieves the ability to “read” mental content will genuinely new ethical issues be raised, but that is not possible at present.”
Neuroscience, Cognitive Psychology, and the Criminal Justice System: Introduction, 8 Ohio St. J. Crim. L. 1 (2010)
“This introduction discusses a symposium on the linking of neuroscience, cognitive psychology, and law. Although the symposium is one of a number of projects on neuroscientific approaches to the legal system that have been organized over the years, readers will see something very different in the articles that follow. The contributions cover a distinctively important niche – a pragmatic focus on the practices of key law enforcement actors, namely the police, prosecutors, and punishers in the criminal justice community. By examining the decision-making of these individuals and groups in real world circumstances, through a range of brain sciences, the symposium’s authors enhance the value that any single scientific discipline can give while also offering proposals that could be implemented immediately.”
Neuro-Voir Dire and the Architecture of Bias, 65 Hastings L.J. 999 (2014)
“Courts and commentators routinely assume that “bias” on the jury encompasses any source of influence upon jurors that does not come directly from the evidence presented at trial. This sweeping conception of juror bias is flawed because it fails to distinguish the prejudices and affinities that infect jury decisionmaking from the experiences and perspectives that enrich it.
This Article uses a thought experiment informed by the neuroscience of bias to illuminate the complexity of juror influences that go by the name of bias. I [Dov Fox] distinguish four distinct categories of juror influence: personal interests, community interests, case-specific beliefs, and case-general beliefs. I apply this spectrum of juror bias to provide a sounder way to think about what kind of juries we want.
I argue that trial courts should limit the interrogation and disqualification of prospective jurors to personal interests in the case — whether social or financial — and to case-specific beliefs arising from pretrial facts or rumors about the parties or events. By contrast, I would permit no such wholesale exclusion, either for community interests, which range from principles of justice to desires for vengeance, or for case-general beliefs about social causes or groups, which span scruples to dogmatism, and empathy to bigotry.
My proposal to abolish challenges for these latter categories of outside influence raises the serious concern that accommodating their presence on the jury risks facilitating unjust outcomes, jury nullification, and hung juries. Trial courts should mitigate these risks by adopting two bias-tempering measures. First, jury pools should be diversified in ways that social cognition research suggests would attenuate the influence of unreflective or objectionable attitudes. Second, judges should instruct deliberating jurors to express, along with their own position, the strongest counterarguments to it, so as to disrupt exaggerated assumptions of division and facilitate openness to persuasion.”
Offenders with Cognitive Deficits in a Canadian Prison Population: Prevalence, Profile, and Outcomes, 44 Int. J. Law Psychiatry 7 (2016)
“Impaired cognitive function has been associated with criminal behavior. In Canada it is unknown the extent to which this disorder affects federal inmates or its impact on key correctional outcomes. In this study, 488 incoming male offenders were assessed on the Cognistat, a neuropsychological screening tool. Twenty-five percent of offenders were found to have some level of cognitive deficit. Lower levels of educational achievement, unstable employment history, learning disability, serious alcohol problems, and symptoms of Attention Deficit Hyperactivity Disorder (ADHD) were significantly associated with the presence of cognitive deficits in this sample. Although there was a significant trend for offenders with cognitive deficits to have more admissions to segregation, level of cognitive deficit was not consistently related to rates of institutional charges or rates of completion of required correctional programs. On release, cognitive deficits were not related to returns to custody or returns to custody with an offence. These results indicate that while offenders with cognitive deficits may require assistance with educational upgrading and employment to improve their reintegration potential, they do not pose a particular management problem in the community after release relative to offenders without cognitive deficits.”
Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7, 64 (2010)
“Some Fourth Amendment scholars have embraced the idea that the courts should defer to police judgments about reasonable suspicion and probable cause. The primary argument for deference is that much police reasoning is intuitive and unconscious, thus not accessible to systematic analysis. Yet, the argument continues, intuition is often more reliable than conscious thinking. This article examines this claim by exploring in depth the cognitive biases and abilities that serve respectively as obstacles to, and opportunities for, police making accurate judgments about individualized suspicion. The article concludes that requiring police consciously to justify their intuitions can improve their accuracy, that the greatest accuracy comes from constructing institutions in a way that combines the best of unconscious intuition with more systematic critique, and that police training can be improved in various ways to enhance cognitive accuracy about the individualized suspicion judgment.”
Prescriptions for Ethical Blindness: Improving Advocacy for Indigent Defendants in Criminal Cases, 65 Rutgers L. Rev. 333 (2013)
“The reasons criminal lawyers so often fail to provide adequate legal representation to indigent defendants are well-known: severe underfunding, excessive workloads and other disincentives for competent representation work together to encourage quick disposition of cases, with little regard for the quality of legal services that are provided. Yet, largely overlooked in this equation is whether defense lawyers who provide subpar representation are aware of their own shortcomings. To answer this question, this article focuses on the psychology of ethical decision-making. Relying on research that reveals the subtle ways that self-interest can cause people to overlook unethical behavior, it argues that defense lawyers will tend to be “ethically blind” to their own poor performance. Concluding that lawyers who suffer from ethical blindness cannot be expected to improve the quality of legal representation on their own, it recommends ways to reduce psychological barriers to competent representation that have proven successful in other contexts.”
Prosecutor Risk, Maturation, and Wrongful Conviction Practice, SSRN (2016)
“In this article we rethink the connection between prosecutorial experience and conviction psychology that undergirds much of the academic literature about wrongful convictions. The conviction psychology account of prosecutorial behavior asserts that prosecutorial susceptibility to cognitive biases deepens over time, thereby increasing the risk that prosecutors will become involved in wrongful convictions the longer they stay in the profession. Our interviews with more than 200 state prosecutors call into question the basis for this asserted correlation between prosecutorial experience and risk of misconduct. The prosecutors we met consistently reported that, all else equal, prosecutors tend to become more balanced, rather than more adversarial, over time. Hence, the prosecutors who present the greatest risk of producing a wrongful conviction are those who are either inexperienced or resistant to the normal maturation process. For this reason, we suggest that wrongful conviction researchers and database designers pay closer attention to the variables associated with prosecutorial experience and resistance that might affect the development of prosecutorial maturity and the consequent risk of wrongful convictions.”
Psychological Perspectives: Cognition and Decision Making, SSRN (2014)
“In this chapter from the forthcoming edited volume entitled, Examining Wrongful Convictions: Stepping Back, Moving Forward (CAP 2014), we offer an overview of what social and cognitive psychological research can tell us about how people make decisions about investigating, prosecuting, and adjudicating criminal cases. In particular, we examine the factors that can undermine the reliability of the judgments made at each of these stages of the criminal process, and how these phenomena might contribute to wrongful convictions. An impressive body of research exists demonstrating how the ways in which people process and use information can produce errors in the criminal justice system. This research has also taught us a lot about how to improve the accuracy of the system.”
Remorse and Demeanor in the Courtroom: The Cognitive Science of Evaluating Contrition, SSRN (2013)
“Although there is a rich legal literature on whether remorse should play a role in the criminal justice system, there is far less discussion of how remorse can be evaluated in the legal context — if indeed it can. There is ample evidence that perceptions of remorse play a powerful role in criminal cases. Whether a defendant is regarded as appropriately remorseful is often a determinative factor in criminal sentencing, including capital sentencing. And in capital cases, in which the defendant rarely testifies, the evaluation of remorse may be based entirely on the facial expression and body language of a defendant sitting silently in the courtroom. Yet the most basic questions about the evaluation of remorse have received little attention: what is it precisely that is being evaluated, and how adept are decision makers at evaluating it? What criteria are being applied and with what level of consistency and fairness?
There is evidence that the evaluation of remorse is particularly difficult across cultural, ethnic or racial lines, or where juvenile or mentally impaired defendants are being judged. But this troubling evidence leads to several larger questions. Is remorse (or the lack of remorse) something that can ever be accurately evaluated in a courtroom? If remorse is not susceptible to courtroom evaluation, is it feasible to bar decision-makers from considering it? And if evaluation of remorse is a permanent feature of the criminal justice system, what can be done to improve upon an evaluative process that is demonstrably riddled with error and bias?
The article considers these questions in light of findings in three flourishing areas of cognitive science: the field of interpretation of facial expressions and “micro” expressions (expressions difficult for the untrained eye to recognize), the study of the dynamics of empathy and empathic accuracy, and the study of implicit bias.”
Removing the Malice from Federal ‘Malicious Prosecution’: What Cognitive Science Can Teach Lawyers About Reform, 50 Harv. C.R.-C.L. L. Rev. 359 (2015)
“Section 1983 (“S 1983”), Title 42 of the U.S. Code empowers individuals suffering civil rights abuses at the hands of state actors to seek recourse in federal court. The statute was enacted in response to southern states’ failure to control the Ku Klux Klan. Since 1961, it has increasingly become a vehicle for federal reform of unconstitutional state and local government practices. Nationwide, state criminal justice systems cry out for such ex post reform, as they continue to generate wrongful convictions at unacceptable rates with no notable preventative measures in place.
“Malicious prosecution” claims brought under S 1983 are a common mechanism for redressing state-driven wrongful convictions, but this Article asserts that they are not meeting their full reform potential. A plurality of federal courts erroneously requires plaintiffs to prove malice in support of such claims. While superficially the requirement comports with the “malicious” prosecution nomenclature, the nomenclature itself is misleading. Federal malicious prosecution claims are based on the Fourth Amendment, the purpose of which is to hold state defendants accountable for objectively unreasonable acts — not intentional, or malicious, ones.
In abandoning the Fourth Amendment’s purpose, the offending courts have also ignored the real causes of wrongful convictions, and therefore have failed to further true reform. Research shows that the vast majority of wrongful convictions are driven not by malice but by cognitive biases — mental processes that filter information subjectively, causing inaccurate perceptions and objectively unreasonable decisionmaking. Although unintentional and often unconscious, cognitive biases may be ameliorated through education, exposure to divergent views, and reform of systemic factors that trigger and exacerbate bias. Reframing S 1983 relief for wrongful conviction as a question of objective unreasonableness rather than malice would tie liability more closely to: (1) nonmalicious cognitive errors that frequently taint state actors’ decisions during criminal proceedings; and (2) states’ failure to implement cognitive error-neutralizing practices. This change to the legal standard, accompanied by close consideration of cognitive science, has the potential to enhance plaintiffs’ access to compensation and to require state reform of the true systemic causes of many wrongful convictions.”
Sacrifice of Unarmed Prisoners to Gladiators: The Post-AEDPA Access-to-the-Courts Demand for a Constitutional Right to Counsel in Federal Habeas Corpus, 14 U. Pa. J. Const. L. 1219 (2012)
“This article argues for a constitutional right to counsel for state inmates in all initial federal habeas corpus proceedings based on access-to-the-courts doctrine. The doctrine guarantees an indigent inmate a constitutional right to meaningful access to the courts in incarceration-related litigation, including postconviction proceedings. The Supreme Court initially articulated the access right, in relevant part, as merely prohibiting states from actively interfering with an indigent inmate’s efforts at pursuing postconviction relief from a criminal judgment. Today, though still fairly inscrutable in dimension, the access right has evolved to require states in certain circumstances to provide affirmative assistance to inmates to ensure constitutionally adequate access to the writ.
In Pennsylvania v. Finley and Murray v. Giarratano, a pair of decisions rendered in 1987 and 1989, respectively, the Supreme Court held that the right of access does not require assistance of counsel in either noncapital or capital state postconviction proceedings, at least insofar as the inmate seeks to raise claims litigated on direct appeal. The primary rationale in Finley and Murray was that habeas litigants have enjoyed assistance of counsel at trial and on direct appeal, and thus should be able simply to parrot that work product in the federal habeas forum to obtain judicial review of any cognizable claims. The Court analogized to an earlier case, Ross v. Moffitt, in which it had held no right to counsel attaches in discretionary appeals. The Court has never addressed the issue whether the access right demands assistance of counsel in federal habeas proceedings. But the lack of such right appeared a foregone conclusion after Finley and Giarratano.
On April 24, 1996, however, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which introduced a myriad of exceedingly complex procedural requirements — most significantly, a one-year statute of limitations — that a petitioner must satisfy in order to obtain merits review of claims set forth in a federal habeas petition. For the prototypical pro se habeas litigant, these requirements, in particular the statute of limitations, erected an impenetrable wall around federal judicial review of merits claims. Indeed, the effect of AEDPA’s enactment has been to stymie many pro se inmates’ efforts at obtaining federal habeas review of state court judgments. Yet, to date, the Supreme Court has not recognized a right to counsel in federal habeas corpus. Federal courts, while struggling mightily to make sense of a poorly drafted statute, continue to abide by a literal fiction in assuming that most inmates are sufficiently competent to navigate post-AEDPA federal habeas practice without assistance of counsel.
This article argues that absent constitutionally guaranteed assistance of counsel in federal habeas corpus and a concomitant remedy where that assistance falls short, AEDPA’s procedural intricacies function to deny the indigent, pro se state inmate the right to meaningful access to the courts in federal habeas proceedings. As such, absent repeal of AEDPA, the access right requires recognition of a right to assistance of counsel in filing a first federal petition. This right would extend only to navigating and comprehending the procedural complexity of federal habeas under AEDPA, rather than to the articulation and framing of substantive claims and subsequent litigation.”
Say Goodbye to the Books: Information Literacy as the New Legal Research Paradigm, 38 Dayton L. Rev. 117 (2012)
“Legal research technology has changed dramatically in the last fifteen years, and it is time for law school legal research programs to catch up. Students entering law school are increasingly less comfortable with using print materials, and at the same time, electronic search technology is no longer modeled on a print-based system. Current legal research pedagogy, developed in the context of a print-based research environment, is waning in utility and may soon be moot. In order to give law students the skills to conduct effective legal research, and to adapt those skills to future technological development, we need to rethink how we teach and assess legal research.
This article argues that we should make information literacy the foundation of legal research instruction. By reframing the goal of legal research instruction as increasing the information literacy (specifically, the legal information literacy) of our students, we will be able to leverage the research skills they already possess and instill in them skills that are transferable to the legal research tools of tomorrow. The article first traces the history of how legal research is taught and introduces the idea of information literacy as a new way of thinking about legal research instruction. It then presents the results of our survey of incoming law students’ research training, habits, practices, and beliefs. Finally, it discusses how the theory of information literacy and our survey results can be used to rethink the way legal research is taught. With this in mind, we can begin to develop methods of research instruction that result in an increased level of legal information literacy, no matter the students’ starting points.”
Sell-ing Your Soul to the Courts: Forced Medication to Achieve Trial Competency in the Wake of Sell v. United States, 38 Akron L. Rev. 503 (2005)
“How far are we willing to go to prosecute a criminal defendant? Sell v. United States is the most recent Supreme Court decision on the issue of forced medication for mentally ill defendants that addresses this very question. The Sell Court faced two important, yet very different legal issues. First, the Court had to determine procedurally whether it had jurisdiction over an appeal of a non-final order. Second, the Court had to decide whether the Constitution permits the government to administer antipsychotic drugs involuntarily to a mentally ill criminal defendant charged with serious, yet nonviolent, crimes solely for trial competency purposes.
Sell involves issues of individual liberty that reach beyond the sphere of the mentally ill. Although the Court ultimately decided in Dr. Sell’s favor by applying the facts of the case to a heightened scrutiny test, the Court missed an opportunity to decide this case on broader, more protective constitutional grounds for other mentally ill defendants.
This Note considers the effect that the decision in Sell v. United States has on mentally ill criminal defendants in both procedural and substantive arenas. Section II gives a brief introduction to the collateral order doctrine and discusses forced medication for trial competency purposes. Section III provides the statement of facts, the procedural history and the Supreme Court’s decision in Sell. Section IV analyzes the Court’s decision in Sell and examines why the Court was correct in categorizing forced medication decisions under the collateral order doctrine. It further discusses why the Court should have applied strict scrutiny to the issue of forced medication in order to protect Dr. Sell’s constitutional rights. Section IV also discusses specific problems with the heightened scrutiny test laid out by the Court. Finally, Section V concludes the Note by reiterating the importance of strict, prompt review of important right violations such as in the field of forced medication.”
‘Shifted Science’ Revisited: Percolation Delays and the Persistence of Wrongful Convictions Based on Outdated Science, SSRN (2016)
“We previously wrote about the phenomenon of convictions based on science that is credible at the time of trial, but later comes to be repudiated. Such post-conviction shifts in science were most obvious and reprehensible in the very old cases, the example being a 1986 arson prosecution, whose scientific underpinnings are exposed in a post-conviction motion filed in 2011. Immediately upon completing that article, we came to realize that it told only half the story. We seek in this article to build on that foundational idea of “shifted science” by discussing at length a harder question: the perception, percolation and continued evolution of shifts in science. We address here cases that arise on the cusp of a shift, identify the process of the shift in various forensic science disciplines and analyze how difficult it can be to perceive and address a shift in science, even when it occurs concurrently with, or even some time prior to, trial. Taking a step-by-step, route through the process of significant shifts in several different forensic disciplines, we hope to clarify the many stages involved in these shifts and the important consequences of misperceiving shifts in science as they occur. Finally, we also lay a foundation for a later piece addressing the difficult question of legal avenues for relief in shifted science cases that arise on the cusp of a revolution, such as those we address here.”
Should Your Law Review Article Have an Abstract and Table of Contents?, SSRN (2014)
“To explore whether abstracts and tables of contents impact the scholarly influence of academic work in the field of legal studies we analyze the impact of these document elements on citation to articles published in top 100 law reviews. We observe that on average both abstracts and tables of contents associate with large increases in scholarly influence. Compared to articles that use neither document element, articles that include just an abstract are cited on average roughly 50% more, and articles that include just a table of contents roughly 30% more. Including both document elements corresponds to the largest increase in citation, over 70%. The Article discusses the title question, and in view of the magnitude and persistence of document element effects and evidence indicating that document elements offer an independent explanation of scholarly influence, answers it in the affirmative. It concludes by offering a hypothesis capable of explaining the effects of abstracts and tables of contents. Specifically, that both of these document elements work by reducing cognitive burdens researchers experience when performing research tasks, although sometimes in different ways.”
Slow Lawyering: Representing Seniors in Light of Cognitive Changes Accompanying Aging, 117 Penn St. L. Rev. 1081 (2013)
“As an increasing number of lawyers represent clients who are elderly, it is imperative that lawyers become more knowledgeable about the aging process and how it impacts our clients. Although it is difficult to generalize, many seniors experience numerous and diverse cognitive changes that accompany the aging process. Existing literature offers various frameworks for addressing capacity issues and techniques for assessing diminished capacity. However, current legal scholarship provides little guidance for lawyers on how to accommodate these changes when they do not rise to the level of diminished capacity or dementia, and when the changes may, in fact, result in increased wisdom and “developmental intelligence.” This article seeks to fill that void. It summarizes selected cognitive developments that impact memory, outlining various types of memory and how they evolve during the aging process. This article also discusses current literature on decision-making capacity and different decision-making models and strategies that seniors may rely upon. The article concludes with recommendations on methods for enhancing communications with aging clients, while simultaneously acknowledging and accommodating cognitive changes and enabling seniors to play a prominent role in the representational process.”
Supreme Convolution: What the Capital Cases Teach Us About Supreme Court Decision-Making, 48 New Eng. L. Rev. 711 (2014)
“Gregg v. Georgia, 428 U.S. 153 (1976), and its accompanying cases, shaped the modem death penalty. The authors interviewed more than fifty lawyers, law clerks, and academics who were involved in the litigation and decision of Gregg and its predecessor, Furman v. Georgia, 408 U.S. 238 (1972). This research is the basis for Prof. Mandery’s book, A Wild Justice. We present it here as part of a discussion of judicial decision-making and as evidence of the limitations of conventional legal research. We argue that only a mixed jurisprudential model can explain the individual Justices’ behavior in Gregg. We further argue that conventional legal research, with its emphasis on published judicial opinions and consideration of the Supreme Court as a monolithic entity, is inherently conservative and unhelpful.”
Technological Leaps and Bounds: Pro Se Prisoner Litigation in the Internet Age, 10 U. Pa. J. Const. L. 819 (2008)
“In the real world, however, the democratic process denies prisoners access to the free law-related websites available online. Few states even allow inmates to use DVD-based legal research tools let alone surf the web. Congress seems unlikely to step in to aid prisoners, either. In 1998, a bill was introduced that would have banned all federal, and many state, inmates from using the Internet at all. More recently, a sitting House Majority Leader voiced contempt for web-based legal research in general, even that done at the Supreme Court. In short, the prospects of achieving this reform through legislation appear dim. The Supreme Court, however, has consistently found the Constitution to guarantee a right to meaningful access to courts, even (in fact, especially) for prisoners. Therefore, in an age in which dockets can be accessed and fruitful legal research can be done, for free, on any Internet-connected computer, advocacy for an extension of that right to include a guarantee of the freedom to access online legal resources might prove more productive than idly waiting for legislatures to come around.
One challenge to this approach is that even Justice Stevens – the sitting Justice most receptive to extending prisoner rights has expressly noted in dictum that “a prisoner would lose on the merits if he alleged that the deprivation of that right [of effective access to the courts] occurred because the State, for example, did not provide him with access to on-line computer databases … .” However, that footnote is now more than a decade old, and as this Comment argues, the subsequent Internet Revolution represents such a paradigm shift in the way we access information that it now requires the states and the federal government to do now precisely what Justice Stevens said they were not required to do in 1996.The greatest challenge to this Comment is not Stevens’s Lewis dictum, however, but rather the aversion of today’s conservative Justices to the methods of constitutional interpretation that gave rise to the non-textual right of meaningful access to courts in the first place. Rather than attempting to make sense of the jurisprudence in any detail, it suffices to quote Justice Souter’s most recent try: “Decisions of this Court have grounded the right of access to courts in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses.” Because conservative concerns about such nebulous constitutional interpretation are valid and likely to grow in influence in the future, this Comment strives wherever possible to address the arguments of Justices Scalia and Thomas on their own terms.
Thus, Part III of this Comment ultimately attempts to root the pro se prisoner’s right to legal research more firmly in the text of the Constitution, in the hope that a greater appreciation for the correctness of Bounds will help carry the right forward into the third millennium.
First, a short history of legal research inside and outside of prisons is due. Part II shows that the venerable tradition of legal research in this country is deeply rooted in the traditions of our Nation. It then describes the rise and fall of the right to legal research in prisons. It ends with a word on the technological revolution that has swept the planet since the Court’s most recent decision.”
This is Your Brain on Human Rights: Moral Enhancement and Human Rights, 9 Law & Ethics Hum. Rts. 1-41 (2015)
“It seems fair to say that human rights law takes the human as given. Human beings are particular kinds of entities with particular kinds of psychologies and propensities, and it is the job of human rights law and human rights enforcement to govern that kind of entity, be it through sanctions, education, incentives, or other mechanisms. More specifically, human rights law takes human brains as given. If humans were different kinds of beings, both the mechanisms of getting compliance and possibly the very rules themselves would be different. The purpose of this essay, part of a symposium on Human Rights and Human Minds, is to very tentatively start to tie together thinking in neuroscience, bioethics, and human rights law to ask whether human rights law should take the nature of human beings, and more specifically, human brains, as given. I [I. Glenn Cohen] sketch the alternative possibility and examine it from a normative and (to a lesser extent) scientific perspective: instead of merely crafting laws and setting up structures that get human beings such as they are to respect human rights, that the human rights approach should also consider embracing attempts to remake human beings (and more specifically human brains) into the kinds of things that are more respectful of human rights law. This is currently science fiction, but there is some scientific evidence that moral enhancement may one day be possible. I call the alternative “moral enhancement to respect human rights law.” To put the aim of the essay in its mildest form it is to answer the following question: if it becomes possible to use enhancement to increase respect for human rights and fidelity to human rights law (whatever you think is constitutive of those categories), and in particular in a way that reduces serious human rights violations, is it worth “looking into?” Or, by contrast, are the immediate objections to such an endeavor so powerful or hard to refute that going in this direction should be forbidden.”
Three Reasons Why the Challenged Judge Should Not Rule on a Judicial Recusal Motion, 18 N.Y.U. J. Legis. & Pub. Pol’y 659 (2015)
“My remarks as a panelist at the New York University symposium, “Courts, Campaigns, and Corruption: Judicial Recusal Five Years After Caperton,” focused on the need for alternative or additional decision-makers to decide judicial disqualification motions due to the extensively documented phenomenon of unconscious bias, whereby individuals do not always recognize their own biases and prejudices. I [Debra Lyn Bassett] previously have written about the significance of unconscious bias in the judicial recusal and other contexts. Taking this opportunity to elaborate on this topic, I would like to offer three reasons why a challenged judge should not rule on his or her own judicial recusal motion. These three reasons, which have the potential to overlap, include unconscious bias, the bias blind spot, and the impact of publicly stating a position. Due to the automatic nature of these mental processes, the challenged judge typically will not be aware of their effect on his or her decision-making process. Accordingly, the use of additional or substitute decision-makers can bring a more impartial perspective to the recusal motion, ensuring that the challenged judge does not deny the motion for reasons personal to, but unrecognized by, the judge.”
Trauma of the Incarceration Experience, 48 Harv. C.R.-C.L. L. Rev. 257 (2013)
“In 2010, I [Mika’il DeVeaux] ceased being counted as a member of the United States correctional population. In that year, I was discharged from correctional supervision after serving thirty-two years of a life sentence; twenty-five of those years were spent in several of New York State’s maximum-security prisons, and seven on parole. This Article reflects my perspective as a formerly incarcerated person, as a doctoral student whose work relates to incarceration, as an adjunct professor at colleges in New York City, and as a director of a nonprofit organization that provides basic support services to men and women returning from prison. This Article will argue that the experience of being incarcerated is traumatic. I will draw additional support for that argument from my personal experience. Although there is much debate about the psychological effects of incarceration, literature describing prison as a site of trauma is still uncommon.”
Worshiping at the Altar of Progress: Cognitive Enhancing Drugs in Legal Education, 40 U. Dayton L. Rev. 225 (2015)
“As this Comment will show, using cognitive enhancing drugs, such as Adderall and Ritalin, impacts competition in legal education the same way steroid usage influences the outcome of a race or game. That is to say, stimulant abuse yields unfair competitive advantage, which can cause harm to both the user and others. Although stimulant abuse represents a problem at nearly every level of education, the effects and consequences for students in law schools are especially troubling. In addition to their fiercely competitive environments, law schools are institutions that hold high values, and follow specific ethical codes, restrictions, and professional oaths that set law students and graduates apart from the general public. Therefore, failing to address this problem undermines the integrity of the entire legal profession.
This Comment reveals how and why using performance enhancers to cheat the system is a persistent and timeless problem by discussing the most common cognitive enhancers, Adderall and Ritalin. Section II specifically explores the effects cognitive enhancing drugs have on their users, and exposes the ease of access, both in obtaining a prescription and buying it on the black market. Section II also details the dangers these drugs pose to non-prescription users.
Additionally, Section II addresses the prevalence of cheating with cognitive enhancing drugs in education, how law schools are environments of particular concern, and how right now, the “perfect storm” is brewing for abuse within legal education. Section II discusses the impact of off-script scholastic steroid use. It describes how the legal profession suffers both in and out of law schools by detailing the history and tradition of high ethical standards and professionalism every lawyer promises to follow. Finally, Section II focuses on the vehement competition in the legal education system and how both the system and current legal job market drives students to cheat.
Section III suggests and analyzes potential solutions to calm this storm through law schools and the American Bar Association (“ABA”), who have the power to stop this form of cheating. This Section specifically examines the honor code system in place within law schools and significant Fourth Amendment litigation regarding various drug screening programs, which have been implemented in the United States. This Comment closely examines suspicionless drug screening programs that have been held Constitutional and discusses similar formats that could be initiated by the ABA. Regardless of the resulting solution, the purpose of this Comment is to initiate contemplative discussion of this important issue.”
NEWS AND PRESS RELEASES
Court Approves Significant Settlement for [Visually] Disabled Prisoners, N.Y.C. Legal Aid Soc’y Press Rel., July 23, 2014
“The U.S. District Court for the Southern District of New York has approved a Private Settlement Agreement in a lawsuit on behalf of a class of blind and severely visually impaired prisoners at two correctional facilities run by the New York State Department of Corrections and Community Supervision (DOCCS). The agreement [in Medina v. Fischer, No. 11 Civ. 176 (S.D.N.Y. July 22, 2014)] requires DOCCS to provide assistance and assistive devices to meet the needs of legally blind and severely visually impaired prisoners, and contains more than 100 substantive terms addressing nearly all aspects of prison life that implicate a prisoner’s visual impairment. The settlement is a significant victory for the rights of disabled prisoners. It will help visually disabled prisoners participate in activities, services, and programs ranging from reading and writing to legal research, from GED programs to vocational training, and from safe recreation and showering to safe transportation between facilities. Among other things, it requires that DOCCS provide additional computers, equipped with adaptive software, and additional adaptive reading devices for blind and severely visually impaired inmates. The settlement includes periodic reporting over the next two years so that plaintiffs’ counsel may confirm DOCCS’s compliance with its obligations.”
Four Supreme Court Justices Are Older Than 75. Is That a Problem?, Los Angeles Times, Feb. 2, 2016
“In a law review article I [David J. Garrow] wrote 15 years ago about cognitive decline on the U.S. Supreme Court, I predicted that, in the coming years, no one would take action to mitigate the problem. Instead, another half a dozen mentally decrepit justices would join “the roster of jurists who harmed their court and hurt their own reputations by remaining on the bench too long.” Although most justices who have retired since then left with their wits (more or less) intact, I’m concerned that my prediction is about to come true.”
Horrible Psychology of Solitary Confinement, Wired, July 10, 2013
“In isolation, people become anxious and angry, prone to hallucinations and wild mood swings, and unable to control their impulses. The problems are even worse in people predisposed to mental illness, and can wreak long-lasting changes in prisoners’ minds. “What we’ve found is that a series of symptoms occur almost universally. They are so common that it’s something of a syndrome,” said psychiatrist Terry Kupers of the Wright Institute, a prominent critic of solitary confinement. “I’m afraid we’re talking about permanent damage.””
Irrationality of Natural Life Sentences, N.Y. Times, Feb. 1, 2016
“On the early side, it is often noted that the prefrontal cortex of the brains of adolescents is still developing, and so they are more likely than adults to act on impulse, engage in dangerous or risky behavior, and misread social cues and emotions. This raises a host of questions about the level of responsibility that juveniles bear for their crimes and the appropriate punishments that should be handed out to them. If the underdeveloped brains of adolescents at least partly explain their criminal behavior, then holding them fully responsible for their actions, and punishing them as adults, seems wildly off the mark.
On the later side of the spectrum, only 1 percent of serious crime is committed by people over the age of 60. According to Jonathan Turley, a professor of public interest law at George Washington University: “Everyone agrees on what is the most reliable predictor of recidivism: age. As people get older, they statistically become less dangerous.” Turley refers to this period as “criminal menopause,” a phenomenon that raises serious questions about the rationale for incarcerating the elderly. Still, researchers project that the elderly prison population in the United States will be over 400,000 in 2030, compared with 8,853 in 1981.”
Writing a Brief for the iPad Judge, Colum. Bus. L. Rev., Jan. 14, 2014
“”Know your audience” is a fundamental rule of skillful writing. For lawyers writing briefs in the 21st century, a key part of knowing your judicial audience is knowing what device will display your brief. While some judges print briefs and read the hard copy, a quiet revolution is occurring: more and more judges are reading briefs primarily on iPads or other tablets. According to experts on legal writing, this change in reading should trigger a similarly significant change in writing. But first, the data. No one keeps track of exact numbers and some judges use multiple formats— for example, reading in hard copy in the office and on an iPad at home—but a large and growing percentage of briefs are read on iPads. The Fifth Circuit judiciary reads the majority of their briefs on iPads, and, from conversations with numerous judges and clerks, the other Circuits are not far behind (though I [Daniel Sockwell] was told that the Third Circuit is “not as iPad heavy as some circuits”). The best way to know how a particular judge typically reads briefs is to ask—the clerks will likely be happy to help.”
AMERICAN LAW REPORTS
Forcible Administration of Antipsychotic Medication to Pretrial Detainees—Federal Cases, 188 A.L.R. Fed. 285 (2003)
“For the government to forcibly administer antipsychotic medication to a pretrial detainee, the interests of the government must outweigh the interests of the detainee. The level of constitutional protection attributed by the individual circuit assists the court in determining the due process standards that apply. The substantive due process standards also vary depending on the purpose of the administration of the medication. In Sell v. U.S., 123 S. Ct. 2174, 188 A.L.R. Fed. 679 (U.S. 2003), the United States Supreme Court (Breyer, J.) held that where an inferior court considers the propriety of involuntarily administering antipsychotic medication for the sole purpose of rendering a detainee competent to stand trial, the court must make its decision in light of the considerations that such an order is appropriate only where the treatment is medically appropriate, substantially unlikely to have side effects that might undermine the trial’s fairness, and, taking account of the availability of less intrusive alternatives, significantly necessary to further important government trial–related interests. This annotation collects and analyzes federal cases dealing with forcibly medicating pretrial detainees.”
Next-Friend Standing for Purposes of Bringing Federal Habeas Corpus Petition, 5 A.L.R. Fed. 2d 427 (2005)
“”Next-friend” standing is the procedure by which a third party appears in court on behalf of detained prisoners who are themselves unable to seek relief. To establish next-friend standing to file a federal habeas corpus petition on a prisoner’s behalf, the putative next friends must show (1) that the prisoner is unable to litigate his own case due to mental incapacity, lack of access to the court, or other similar disability; and (2) that the next friend has some significant relationship with and is truly dedicated to the best interests of the prisoner. In Coalition of Clergy, Lawyers, and Professors v. Bush, 310 F.3d 1153, 5 A.L.R. Fed. 2d 723 (9th Cir. 2002), cert. denied, 538 U.S. 1031, 123 S. Ct. 2073, 155 L. Ed. 2d 1060 (2003), the court held that a coalition of clergy, lawyers, and professors lacked next-friend standing to file a federal habeas petition on behalf of detainees who, following terrorist attacks, were captured by the United States in Afghanistan and held at the United States Naval Base in Guantanamo, Cuba, given the absence of any relationship, whether general or individual, with the detainees. Even assuming that the coalition’s concern for the detainees’ rights and welfare was genuine and sincere, the court concluded that the coalition, at best, could assert only generalized interest in constitutional governance, a relationship insufficient to support next-friend standing. This annotation collects and analyzes cases addressing next-friend standing for purposes of bringing a federal habeas corpus petition.”
Nonconsensual Treatment of Involuntarily Committed Mentally Ill Persons with Neuroleptic or Antipsychotic Drugs as Violative of State Constitutional Guaranty, 74 A.L.R.4th 1099 (1989)
“Historically, although institutionalized mentally ill patients were subject to control by the state for their protection and the protection of others, the personal rights of committed persons were still recognized. Much of the controversy surrounding “treatments” administered to institutionalized mental patients has centered on whether the “treatments” were actually to improve patients’ conditions or were simply to control patients and make the institutional environment more manageable. Patients began challenging the use of certain treatments based on their constitutional rights to due process, equal protection, privacy, and freedom of speech. Legal action specifically to protect their right to refuse treatment with antipsychotic or neuroleptic medications was preceded by judicial recognition of mental patients’ rights to refuse other treatments considered drastic, risky, or controversial, such as psychosurgery and electroshock therapy. In recent years, the rights of involuntarily hospitalized patients to refuse or resist medication has been adopted, in one form or another, in a majority of American jurisdictions.
Judicial and legislative recognition of involuntarily committed mental patients’ rights to refuse or consent to administration of antipsychotic medication has been evidenced in cases in which the courts have held that state constitutional guaranties of due process afforded such patients a fundamental right to refuse antipsychotic medication (S 3[a]). In a particular application of this recognition of a patient’s due process rights, one court has held involuntary treatment of a patient with antipsychotic drugs pursuant to a court order proper, stating that the narrow scope of the treatment comported with the patient’s liberty interest (S 3[b]).
This right of consent or refusal has also been recognized, both judicially and legislatively, as deriving from the right of privacy guaranteed by the relevant state constitutions in cases in which courts have held that nonconsensual treatment of involuntarily committed mental patients with antipsychotic or neuroleptic drugs violated the patients’ state constitutional privacy rights (S 5). In a case where legislative recognition of the right to refuse treatment with antipsychotic drugs was limited to mentally ill persons who had been detained but not committed, one court has held that statutory distinction between such detainees and involuntarily committed mental patients for purposes of the right to refuse antipsychotic drugs, when members of both groups were competent, violated the involuntarily committed patients’ right to equal protection as guaranteed by the state and federal constitutions (S 4).”
Personal Limitations of Petitioner as Grounds for Equitable Tolling of One-Year Limitations Period Established in Antiterrorism and Effective Death Penalty Act for Writ of Habeas Corpus Sought by Person in Custody Pursuant to Judgment of State Court (28 U.S.C.A. S 2244(d)(1)), 9 A.L.R. Fed. 2d 343 (2006)
“In 1996, as part of the Antiterrorism and Effective Death Penalty Act (more commonly referred to as “AEDPA”), Congress enacted 28 U.S.C.A. S 2244(d). 28 U.S.C.A. S 2244(d)(1) creates a one-year limitation period for the filing of federal habeas petitions by persons in custody pursuant to the judgment of a state court. Although 28 U.S.C.A. S 2244(d)(1) provides that “a 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court,” the courts have recognized that, under appropriate circumstances, equitable factors permit the tolling of this one-year period. This annotation collects and analyzes the federal cases discussing personal limitations of the petitioner as grounds for such equitable tolling. For example, in Cobas v. Burgess, 306 F.3d 441, 2002 FED App. 0334P, 9 A.L.R. Fed. 2d 821 (6th Cir. 2002), cert. denied, 538 U.S. 984, 123 S. Ct. 1793, 155 L. Ed. 2d 677 (2003), the court held that the habeas petitioner’s lack of proficiency in the English language did not warrant equitable tolling of the one-year limitation period for filing a habeas petition.” See S 7. Petitioner’s mental incompetence—View that equitable tolling available; S 8. Petitioner’s mental incompetence—Equitable tolling found warranted.
Prison Conditions as Amounting to Cruel and Unusual Punishment, 51 A.L.R.3d 111 (1973)
“In determining whether particular prison conditions are cruel and unusual, the courts have been guided by certain basic tests or standards which have evolved over the years in Eighth Amendment litigation. Thus, depending upon the test or combination of tests focused upon by the court, a prison treatment or condition may be held cruel and unusual (1) because it is of such “inherent cruelty” that no conduct upon the part of inmates can warrant it, (2) because, although perhaps not frowned upon in the past, it is abhorrent to contemporary society, and/or (3) because it is “excessive,” either in the sense that it is disproportionate to the infraction of prison rules for which it was imposed, or in the sense that it is not justified by legitimate penal purposes or aims. It is noteworthy that in interpreting this latter aspect of the “excessiveness” test, some modern courts have appeared to add the refinement that even if a severe prison treatment does to some extent serve a legitimate penal aim, it will not be considered permissible if some less drastic means of achieving that aim exists.”
Prison Inmate’s Eighth Amendment Rights to Treatment for Sleep Disorders, 68 A.L.R.6th 389 (2011)
“Under the Eighth Amendment, to state a deliberate-indifference claim based on the delay or denial of medical treatment, an inmate must allege that: (i) he or she suffered from a serious medical need; (ii) the defendant deprived him or her of treatment or delayed treatment of that need; and (iii) the defendant did so with a sufficiently culpable state of mind. Inmates with a wide variety of medical conditions have alleged that prison officials have been deliberately indifferent to their medical needs including inmates suffering from sleep conditions such as sleep apnea and narcolepsy. In Hart v. Bertsch, 529 F. Supp. 2d 1032, 68 A.L.R.6th 753 (D.N.D. 2008), summarily aff’d, 326 Fed. Appx. 983 (8th Cir. 2009), the court ruled that an inmate had failed to establish deliberate indifference on the part of the prison staff who provided him with a breathing machine and performed numerous tests for the inmate’s sleep apnea although they would not transfer him out of a cell with steam heat nor provide him with a medical alert button as he had requested. This annotation discusses all federal and state cases that have considered prison inmates’ Eighth Amendment claims to treatment for sleep disorders including when and if prison staff have been deliberately indifferent to such conditions and whether particularly sleep conditions are sufficiently severe for Eighth Amendment purposes.”
Propriety of Holding Prisoner in Isolation—Federal Cases, 82 A.L.R. Fed. 2d 315 (2014)
“Inmates in prisons or jails may be placed, for administrative, punitive, or protective reasons, in some type of solitary confinement or isolation where they may have restricted access to exercise, recreation, educational and vocational opportunities, congregate religious services, and visitation. Prisoners have mounted a variety of challenges to being so confined, claiming that they have been subjected to cruel and unusual punishment under the Eighth Amendment, denied due process under the 14th Amendment, had their First Amendment Free Speech and Free Exercise of Religion rights improperly restricted, or have been placed in such conditions in retaliation for the exercise of their First Amendment rights. For example, in Bistrian v. Levi, 696 F.3d 352, 82 A.L.R. Fed. 2d 689 (3d Cir. 2012), the court remanded a pretrial detainee’s challenge against prison officials who placed him in a special housing unit for 447 days in arguable retaliation for exercising his First Amendment rights. This annotation collects and analyzes a selected representation of federal court cases analyzing constitutional and other challenges made by inmates about being placed in solitary confinement.”
Propriety of Holding Prisoner in Isolation—State Cases, 96 A.L.R.6th 269 (2014)
“State courts have been called on to adjudicate suits brought by prisoners challenging the decision to place or maintain them in the prison’s segregated housing area, which has some degree of isolation from the general population of the prison. Depending on whether the placement is for disciplinary reasons or to protect the inmate, other inmates, or staff, the facilities may be referred to by terms such as administrative segregation, punitive segregation, or solitary confinement. Prisoners have occasionally succeeded in establishing that the process employed in making the determination to impose isolation was inadequate under principles of procedural due process. For example, in LaChance v. Commissioner of Correction, 463 Mass. 767, 978 N.E.2d 1199, 96 A.L.R.6th 731 (2012), ruling that under no circumstances may a prison inmate be held in segregated confinement while awaiting transfer or reclassification for longer than 90 days without a hearing, the Supreme Judicial Court of Massachusetts explained that whether the confinement occurs in an area designated as a Special Management Unit, a Disciplinary Segregation Unit, or otherwise, the prisoner has a due process right to notice of the basis for the detention, as well as a hearing at which the prisoner may contest the asserted rationale, and a posthearing written notice explaining the reviewing authority’s classification decision. This annotation collects and discusses all of the cases in which state courts have considered the legal propriety of holding a prisoner in isolated confinement.”
Relief Under Federal Civil Rights Acts to State Prisoners Complaining of Interference with Access to Courts, 23 A.L.R. Fed. 6 (1975)
“The “types” of interference with access to the courts complained of in federal civil rights actions by state prisoners have fallen into four main categories: (1) interference with communications between the prisoner and legal personnel; (2) interference with the prisoner’s access to legal materials; (3) interference with the prisoner’s access to legal assistance by other prisoners; and (4) punishment or transfer of the prisoner to prevent or discourage him from exercising his right of access to the courts. While cases in the first category have sometimes dealt with prisoners’ communications with attorneys, either by visitation consultation, or by telephone, and have also dealt with prisoners’ face-to-face communications with law students or paralegal professionals, they have mostly involved prison officials’ interference with communications by mail between prisoners and judges, courts, lawyers, and legal services organizations, such interference ordinarily consisting of a failure to send or to allow receipt of mail, delay of mail, and screening or censoring, and while the cases have recognized that relief under the Federal Civil Rights Acts may be granted to state prisoners whose right of access to the courts has been violated by prison officials’ interference with communications by mail between the prisoners and courts or judges, attorneys, and legal services organizations, such as the American Civil Liberties Union, such relief has also been denied in the particular circumstances of certain cases. In addition, while one court indicated, in an action under 42 U.S.C.A. S 1983, that a state prisoner had the right to seek psychiatric, financial, and legal assistance for a judicial determination of his mental status, which was the basis for his incarceration, state prisoners have generally been unsuccessful in getting Federal Civil Rights Acts relief against the actions of state prison officials in interfering with mail between the prisoners and parties other than courts, judges, court clerks, law.”
Right of State Prison Authorities to Administer Neuroleptic or Antipsychotic Drugs to Prisoner Without His or Her Consent—State Cases, 75 A.L.R.4th 1124 (1989)
“Since prison inmates have a right to psychiatric and psychological treatment analogous to their right to receive medical treatment for physical problems, state prison authorities face a dilemma when a prisoner refuses recommended psychiatric medication, such as antipsychotic drugs. While both state and federal courts have recognized that prisoners have a protected liberty interest in avoiding unwanted administration of antipsychotic drugs, they have also recognized that governmental subdivisions operating prisons have a legal obligation to supply needed medical treatment. Balancing these interests and requirements is further complicated by the question whether administration of antipsychotic medication to prisoners is for the purpose of treating and improving the prisoners’ conditions or simply to control the prisoners’ behavior and make the prison or treatment facility more manageable.
For instance, where the record of a prisoner’s treatment with antipsychotic drugs led a court to conclude that the drugs were likely given for management of the prisoner’s behavior in nonemergency situations, the court held that the prisoner stated a viable claim for relief for violation of a liberty interest protected by the due process clause of the state constitution (S 3). Moreover, the same court also held that, even if the antipsychotic drugs were administered to the prisoner for treatment, there was still a viable claim for violation of procedural due process if the drugs were not administered in compliance with unspecified procedural safeguards similar to those required for the involuntary medication of civilly committed mental patients (S 5[c]).
Other courts have also recognized that procedural safeguards are necessary as a prerequisite to involuntary treatment of a prisoner with antipsychotic drugs (S 4). The particular procedural requirements set out by the courts include a formal judicial hearing to review the propriety of a recommendation that a prisoner be treated with antipsychotic drugs (S 5[a]), and a judicial determination that a prisoner is incompetent to refuse the antipsychotic medication (S 5[b]). Therefore, courts have found prisoners to have stated viable claims for relief by demonstrating that prison authorities reached the decision to administer antipsychotic medication against their wills without employing adequate procedural safeguards in the decisionmaking process (S 5[a], 5[c]).”
Rights of Prisoners Under Americans with Disabilities Act and Rehabilitation Act, 163 A.L.R. Fed. 285 (2000)
“The prisons of America are filled with persons with many types of disabilities. If a prisoner has a disability or associates with someone with a disability and in either case suffers discrimination in the services, activities, or programs provided by a prison, problems arise. Specifically, prisoners bring claims alleging that their rights are violated under the Rehabilitation Act of 1973 and under the Americans With Disabilities Act of 1990 (ADA). The question whether the ADA applied to prisoners was decided in Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 118 S. Ct. 1952, 141 L. Ed. 2d 215, 8 A.D. Cas. (BNA) 201, 163 A.L.R. Fed. 671 (1998), in which the Supreme Court held that Title II of the ADA, which prohibits a state entity from discriminating against a qualified individual with a disability based on the individual’s disability, applied to prisoners in state correctional facilities. The Court did not, however, address whether the application of the ADA was a constitutional exercise of Congress’ power under the Commerce Clause, and left open such factual determinations as what services must be provided to prisoners and whether there was discrimination with respect to provision of the required services. This annotation will discuss all of these issues.”
Sufficiency of Access to Legal Research Facilities Afforded Defendant Confined in State Prison or Local Jail, 98 A.L.R.5th 445 (2002)
“Prisoners have the constitutional right to petition the government for redress of their grievances, which includes the right of access to the courts in order to challenge unlawful convictions and to seek redress for violations of their constitutional rights. Denial or undue restriction of this right is a denial of due process of law under the Fourteenth Amendment. Prison policies and practices will not be allowed to operate so as to deprive a prisoner of the right to reasonable access to the courts. Before procedures that impede a prisoner’s access to the courts may be constitutionally validated, it must be clear that the state’s substantial interests cannot be protected by less restricted means. The courts have been called on to discuss the sufficiency of access to legal research facilities afforded to a person confined in a state prison or local jail. In McConico v. Martin, 716 So. 2d 222, 98 A.L.R.5th 753 (Ala. Civ. App. 1998), for example, the court held that the purported failure of the state to include necessary books in a correctional facility’s law library did not serve to deny an inmate’s constitutional right of access to the courts, particularly since the inmate was unable to demonstrate how the lack of such books affected his claims. This annotation collects and discusses the state and federal cases in which the courts have discussed the sufficiency of access to legal research facilities afforded to a person confined in a state prison or local jail.”
Center for Law, Language & Cognition (Brooklyn Law School)
“Brooklyn Law School’s Center for the Study of Law, Language and Cognition is devoted to exploring how developments in the cognitive sciences – including psychology, neuroscience and linguistics – have dramatic implications for the law at both theoretical and practical levels. The establishment of the Center in 1999 was spurred by the scholarly work of a substantial concentration of BLS faculty whose writings are informed by advances in cognitive psychology and linguistics. The Center is the only one of its kind in the nation.”
Neurolaw Conferences (Vanderbilt University Law School)
This is a worldwide “list of past and upcoming conferences and symposia addressing topics related to law and neuroscience.”
Neuroscience and Law Center (Fordham University School of Law)
“Advances in neuroscience have prompted the legal profession to question long-held notions about criminal culpability, free will, thought, behavior, and pain. Fordham’s Neuroscience and Law Center will explore how these advances affect the legal system. The Neuroscience and Law Center will be dedicated to: using a multidisciplinary, evidence-based approach to examine the current and potential uses of neuroscience evidence; advancing legal scholarship and the use of neuroscience in legal circles; providing information to academics, lawyers, and the public about legally relevant advances in neuroscience. Through innovative programs and in collaboration with academic partners, the Neuroscience and Law Center aims to be a premier resource of evidence-based information about the increasing prevalence of neuroscience in 21st-century courtrooms.”
Neuroscience & Public Policy Program (University of Wisconsin-Madison)
“The Neuroscience & Public Policy Program (N&PP) is based on two strongly held beliefs. First, that sound science and technology policy and law are essential for the well-being of societies. Second, that a step toward ensuring such policy is to train future scientists in the making of public policy or the law and prepare them to participate in bringing science and society closer together.”
Prisoners’ Rights Law Resources: Law Libraries/Legal Assistance (Pace Law School Library)
“A gateway to information on prisoners’ rights, including federal, state, and international primary and secondary sources, in print and online, with a particular focus on special populations and topical issues.”
Research Network on Law and Neuroscience (Vanderbilt University Law School)
This academic center “addresses a focused set of closely-related problems at the intersection of neuroscience and criminal justice: 1) investigating law-relevant mental states of, and decision-making processes in, defendants, witnesses, jurors, and judges; 2) investigating in adolescents the relationship between brain development and cognitive capacities; and 3) assessing how best to draw inferences about individuals from group-based neuroscientific data.” Among the many resources available are an extensive Law and Neuroscience Bibliography and External Links.
Society for Evolutionary Analysis in Law (Vanderbilt University Law School)
“The Society for Evolutionary Analysis in Law (SEAL) is a scholarly association dedicated to fostering interdisciplinary exploration of issues at the intersection of law, biology, and evolutionary theory, improving the models of human behavior relevant to law, and promoting the integration of life science and social science perspectives on law-relevant topics through scholarship, teaching, and empirical research. Relevant disciplines include, among others, evolutionary and behavioral biology, cognitive science, neuroscience, complex adaptive systems, economics, evolutionary psychology, psychiatry, behavioral ecology, behavioral genetics, primatology, memetics, chaos theory, evolutionary anthropology, and gender relations. SEAL welcomes everyone — professors, students, practitioners, and all others — with serious interests in evolutionary processes and law. SEAL is comprised of over 400 members, from more than 30 countries.”
Stanford Program in Neuroscience and Society (Stanford University)
“The Stanford Neurosciences Institute is creating the Stanford Program in Neuroscience and Society (SPINS), a multidisciplinary initiative to study how neuroscience affects society, and to bring neuroscientists knowledge of human behavior and cognition from scholars in law, education and business. Through SPINS, SNI [Stanford Neurosciences Institute] will create cooperative dialogue and partnership between these disciplines. After all, our nervous systems evolved to produce behavior, which neuroscience seeks to explain.”
1 See generally Owen D. Jones and Matthew R. Ginther, Law and Neuroscience in International Encyclopedia of Social and Behavioral Sciences (2nd ed. 2015) (overview of most common and current applications of neuroscience to law).
2 See generally Ken Strutin, Neurolaw and Criminal Justice, LLRX, Dec. 28, 2008 (“This article highlights selected recent publications, news sources and other online materials concerning the applications of cognitive research to criminal law as well as basic information on the science and technology involved.”).
3 From recognition of the evolving juvenile mind to acknowledging the pain of confinement, research is unmasking the role of mental status in assessing culpability, penality and the ability of the accused and the confined to make decisions. See, e.g., Montgomery v. Louisiana, 193 L. Ed. 2d 599 (U.S. Jan. 25, 2016) (“In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored.” Id. at 622-623). See generally Amanda C. Pustilnik, Imaging Brains, Changing Minds: How Pain Neuroimaging Can Inform the Law, 66 Ala. L. Rev. 1099 (2015) (“Chronic pain compromises the brain’s cognitive and affective functioning, creating cognitive and emotional difficulties as a side effect of the pain syndrome.” Id. at 1142). See generally Ken Strutin, Civilized Sentencing: Experiential Gateway to Just Punishment, N.Y.L.J., Jan. 26, 2016, at 5 (“Information sharing is the hallmark of modern society and, in particular, the administration of justice. We know more about more than ever before. The glaring exception is the prison experience omitted from sentencing charts. Civil courts, however, are shedding light on the daily grist of punishment. Indeed, pleadings written by the punished can be an adjunct of experience for sentencing practices and review.”).
4 See generally List of Cognitive Biases (Wikipedia) (“Cognitive biases are tendencies to think in certain ways that can lead to systematic deviations from a standard of rationality or good judgment, and are often studied in psychology and behavioral economics. Although the reality of these biases is confirmed by replicable research, there are often controversies about how to classify these biases or how to explain them. Some are effects of information-processing rules (i.e., mental shortcuts), called heuristics, that the brain uses to produce decisions or judgments. Such effects are called cognitive biases. Biases have a variety of forms and appear as cognitive (“cold”) bias, such as mental noise, or motivational (“hot”) bias, such as when beliefs are distorted by wishful thinking. Both effects can be present at the same time.” (footnotes omitted)); Confirmation Bias (Wikipedia) (“Confirmation bias, also called confirmatory bias or myside bias, is the tendency to search for, interpret, favor, and recall information in a way that confirms one’s beliefs or hypotheses, while giving disproportionately less consideration to alternative possibilities. It is a type of cognitive bias and a systematic error of inductive reasoning. People display this bias when they gather or remember information selectively, or when they interpret it in a biased way. The effect is stronger for emotionally charged issues and for deeply entrenched beliefs. People also tend to interpret ambiguous evidence as supporting their existing position. Biased search, interpretation and memory have been invoked to explain attitude polarization (when a disagreement becomes more extreme even though the different parties are exposed to the same evidence), belief perseverance (when beliefs persist after the evidence for them is shown to be false), the irrational primacy effect (a greater reliance on information encountered early in a series) and illusory correlation (when people falsely perceive an association between two events or situations).” (footnotes omitted)).
5 See generally Ken Strutin, Cut and Paste Opinions: A Turing Test for Judicial Decision-Making, LLRX, July 25, 2015 (“Cut-and-paste is a laudable method for reducing transcription errors in copying citations and quotations. However, a problem arises when it is used to lift verbatim sections of a party’s arguments into a case decision. Stipulations and proposed orders from counsel for both parties might be enviable and practicable, but judgment and fact-finding are solely in the province of the court. This has been a long standing issue that has spanned technologies from shears and paste-pot to typewriters and computers, and which might culminate in a Turing Test for case law.”); Ken Strutin, Case Law in an Era of Heightened Scrutiny, LLRX, Aug. 18, 2014 (“Judging cases and writing and publishing opinions continue to face new challenges due to advances in technology and research practices, such as judicial notice of the Internet, independent factual research online, databases of unpublished opinions, copy-and-paste content, and automated decision making. This article collects an assortment of guides, manuals, treatises, law reviews, studies and newsworthy mentions that address significant issues in judicial decision-making, opinion writing and case law publishing.”).
6 See Ken Strutin, Solitary Confinement: Out of Sight, Out of Mind, LLRX, Dec. 17, 2015 (“The common penal rationales for segregated confinement include protection, discipline and administration. But extreme isolation has also been used for coercion, interrogation, retaliation, and torture. Notwithstanding the purpose, the potential for mental and bodily harm is embedded in the conditions of confinement. And based on research and precedent, courts are now in a position to take judicial notice of the cognitive and physical effects of institutionalized isolation. Finally, some have suggested that curtailment of solitary confinement should be founded on the constitutional principle of “dignity.” And so preservation of “basic human needs,” the first prong of an Eighth Amendment analysis, might encompass the cognitive human needs of social and psychological well-being.” (footnotes omitted). See, e.g., Arthur Longworth, What It’s Like to Be Moved From Cell to Cell, Prison to Prison, Marshall Project, Jan. 29, 2016 (“No one sent here [oldest cellhouse in the prison] when they’re young makes it that long; the living conditions are too poor, the health services too lacking, the mental deprivation too total, and the temptation of suicide too real for us to survive into old age. Young prisoners won’t ever have to bring food to Wade’s cell, or mine. I [Arthur Longworth] understand what the ripping feeling is now. It’s prison taking my life. Because that’s what incarceration does. It tears life away in pieces. As I load the last of my possessions into the cart, I’m conscious of how long I’ve been inside these walls. I wonder how many pieces I have left before there’s nothing left to rip.”). Justice related incarceration is not limited to prison but encompasses the pretrial, post-conviction and collateral detentions associated with it. See generally Peter Wagner and Bernadette Rabuy, Mass Incarceration: The Whole Pie 2015, Prison Policy Initiative, Dec. 8, 2015 (“This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 2,259 juvenile correctional facilities, 3,283 local jails, and 79 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people in the various systems of confinement are locked up.”).
7 See Kevin Jon Heller, Cognitive Psychology of Circumstantial Evidence, 105 Mich. L. Rev. 241 (2006) (“Gary Wells has shown—and other researchers have confirmed—jurors are likely to acquit in a circumstantial case even when their subjective probabilities of guilt are sufficient to convict.” Id. at 256 (footnotes omitted) citing to Gary L. Wells, Naked Statistical Evidence of Liability: Is Subjective Probability Enough?, 62 J. Personality & Soc. Psychol. 739, 744 (1992)).
8 See generally Ken Strutin, Post-Conviction Representation, Pro Se Practice and Access to the Courts, LLRX, Feb. 13, 2013 (“This article has collected federal and state court decisions, law review articles and criminal justice research on the problematic state of post-conviction representation and pro se practice beyond the first appeal.”).
9 And of course, lawyers by their training, skills and access to resources can go further than any incarcerated self-represented person. See, e.g., Kane v. Garcia Espitia, 546 U.S. 9 (2005) (“Respondent Garcia Espitia, a criminal defendant who chose to proceed pro se, was convicted in California state court of carjacking and other offenses. He had received no law library access while in jail before trial—despite his repeated requests and court orders to the contrary—and only about four hours of access during trial, just before closing arguments. (Of course, he had declined, as was his right, to be represented by a lawyer with unlimited access to legal materials.)”).
10 See William Kelly, Rethinking Criminal Intent: Why ‘Mens Rea’ Matters, The Crime Report, Jan. 21, 2016 (“Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.”).
11 See Exonerations in 2015 (Nat’s Reg. Exonerations Feb. 3, 2016) (“The National Registry of Exonerations has recorded 149 exonerations in 2015. The exonerated defendants had served, on average, more than 14 years in prison. The previous record—139 exonerations—was set the year before, in 2014. All told, the National Registry of Exonerations has recorded 1,733 known exonerations in the United States since 1989 (as of January 27, 2016). Last year’s record is part of a striking trend. Since 2011, the annual number of exonerations has more than doubled. We now average nearly three exonerations a week.” Id. at 3. “As with climate change, the significance of the issue of false convictions is now widely acknowledged, despite committed doubters. In other respects, we are far behind. We have no measure of the magnitude of the problem, no general plan for how to address it, and certainly no general commitment to do so. We’ve made a start, but that’s all.” Id. at 18. See generally The First 1,600 Exonerations (Nat’l Registry of Exonerations 2015)); The State of Sentencing 2015: Developments in Policy and Practice (Sentencing Project 2015) (“During 2015, lawmakers in at least 30 states adopted changes in policy and practice that may contribute to further declines in incarcerated populations and address the collateral impacts of justice involvement. The policy reforms outlined in this document highlight changes in sentencing, community supervision, collateral consequences, and juvenile justice policies.” Id. at 3).
12 See generally Ken Strutin, Justice Without ‘Bounds’ and the Poverties of Confinement, NYLJ, Sept. 23, 2014,
at 5 (“The pro se confined anywhere without counsel, without libraries can seldom if ever produce the same justice generated by lawyers and judges in the digital world. Their pleas are constrained by the inhumane conditions of confinement, mental health attrition, educational shortfalls, sensory and language disabilities, and inaccessible information. For them, the system is the adversary. It is unfair to demand that prisoners overcome the harshness of their imprisonment at the same time they challenge the wrongfulness of their convictions. No one should be forced to argue their cause from the seat of hardship. A forward thinking justice reaches out to settle wrongs committed against those who petition and those who cannot. Indeed, the truth is often written in the human ink of unredressed grievances. At a time when freestanding claims of actual innocence are being recognized, there should be a post-conviction right to counsel and to libraries based on the same liberty interests. After all, the presumption of innocence is nothing more than the presumption of human error in the administration of justice.”); Ken Strutin, Post-Conviction Justice in the Information Age: The Trial Never Ends, N.Y.L.J., Nov. 19, 2013, at 5 (“The Antiterrorism and Effective Death Penalty Act (AEDPA) and state procedures curb access to the courts in order to proscribe abuse of the writ and encourage finality. Thus, new evidence has a hard time escaping the gravity well of the trial record. Still, wrongful convictions, discredited forensics, and inaccuracy and unfairness in the administration of justice prove, to paraphrase Sir Thomas Gresham, bad information drives out good. And this is made manifest by the Information Divide. In the Internet Age, information flows back and forth at optic speeds, until it reaches the last leg of the justice system. At that distant point on the horizon where the right to counsel runs out of road, pro se inmates are tasked to fill the role of lawyers, investigators and experts, without any of their information advantages. Nationwide, there are potentially more than two million pro se or “prisoners at law.” They are the new “American Scholars,” enrolled in the world’s largest law school, who must overcome the hurdles of information poverty and procedural impediments.”); Ken Strutin, Metrics of Injustice, N.Y.L.J., May 20, 2014, at 5 (“Half a million years have been siphoned from a generation living in New York’s prisons, jails and varia of confinement. Nationwide, 1,378 people have been executed since the mid-1970s while 144 on death row have been exonerated, most of whom spent a decade or more in prison awaiting their outcomes. And then there is the almost 12,500 years that the wrongfully convicted have lived behind bars over the last quarter century. These are the unaccounted dividends of mass incarceration, the irreducible measure of injustice in search of a remedy. There comes a point in the life of every society when conscience can no longer be sacrificed to expedience. The war on crime has elevated the presumption of guilt, deflated the presumption of innocence and promoted retributive punishment to an end in itself. Hence, people have been wrongly incarcerated in numbers too high for a vaunted system of justice.”).