The call came, as they always do, at the last minute. “I’ve been charged with a crime, and I have to be in court in two days, and my lawyer isn’t doing anything, and I’m scared.” The caller came in to meet with me in person, as they always do when they’re legitimately scared and not merely irritated or price-shopping.

Most of the time, after hearing them out, we tell such folks that it’s probably not wise to change horses in mid-stream. Much as we’d love to help them, it doesn’t sound like their present lawyer’s doing all that bad by them, and there’s not enough time for us to catch up. But once in a while, the emergency is legit, and it sounds like we might be able to help. The client signs the agreement, forks over the retainer, and we get to work. There isn’t a minute to lose.

(Before they go, however, we sometimes half-jokingly ask why they didn’t just call us first. The answers vary, but it always boils down to money. There’s nothing wrong with that — price is a legitimate concern. And our services aren’t exactly cheap. So it makes sense that we wouldn’t even be considered an option until other things suddenly became much more important. Unfortunately, people often don’t realize it until the last minute, or until it’s too late.)

There isn’t a minute to lose, and we’re going to spend the next couple of days trying to accomplish all the things that should have been done already — gathering evidence, analyzing data, speaking with prosecutors, etc. Usually, of course, the first call is to the original lawyer. Nobody likes to get those calls, but it’s usual enough in the criminal world — clients jump ship all the time for various reasons, it happens to all of us — and the lawyers are usually collegial and gracious about it.

But not this time.

This time, the lawyer was outraged. Couldn’t believe that this was happening. This wasn’t mere shock, as from a new lawyer experiencing it for the first time. It was anger and betrayal. We began to wonder if perhaps we’d mis-read the facts, and maybe this lawyer had invested a lot into this case.

That thought didn’t last long. “Can you shoot me a copy of your files?” What files? The lawyer only had the accusatory instruments. “What’s the prosecutor’s take on the case?” Who knows? The lawyer hadn’t called to ask. A few questions more, and it became obvious that zero work had been done on the case, and the client’s fears were fully justified.

Our silence must have been eloquent. The lawyer started protesting that the client couldn’t expect ass-busting in a case like this.

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Ah. Yes. Of course. No client could expect their lawyer to be busting their ass on a routine little case.

Except that’s absolutely wrong. Clients can — and should — expect their lawyers to be out there busting there asses on every single case.

It doesn’t matter whether the client’s looking at a murder rap or a farcical summons. The lawyer’s job is to give 100% to defend that client. The client paying next to nothing gets the same level of care as the one who’s carrying your practice for the year.

That means putting in time, of course. And if one has a high-volume-lowest-fee business model, there probably isn’t any extra time for that. There’s barely enough time to just show up on the assigned court date and take whatever plea gets offered. Any more work than that would mean one has no time for taking on all the other cases required to pay the bills. So too bad, so sad, but that time is not going to be invested.

And so here’s another client who’d hired a lawyer, thinking the lawyer would protect them and defend them the way lawyers are supposed to. And instead got a lawyer who saw the client as just another routine widget to be processed through the machine. A lawyer who isn’t there to protect and defend, but to grease the wheels of the machine that destroys reputations and lives. And now the client is starting to realize that, and the client is beginning to panic. For damn good reason.

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The lawyer didn’t end the call graciously. But it ended. And then we got to work.

Over the next couple of days we got the alleged victims’ stories from the prosecutor, fleshed out the prosecutor’s assessment of the case, located and interviewed three eyewitnesses, and helped the prosecutor dramatically reassess the case in the client’s favor. From a heinous incarceration case to essentially “go forth and sin no more.”

This is not self-congratulation. It didn’t happen because of any particular skill or ability we have. It took no brilliance whatsoever. This is precisely what would have happened anyway, had the first lawyer done his job right. Any lawyer who had bothered to take the time would probably have gotten the same result. It really was a no-brainer at the end.

No, this is not self-congratulation — this is a complaint. A complaint about lawyers who don’t feel like a particular case deserves 100%. Every case gets it. Every client deserves it. If you don’t have the time, too bad — that is not your client’s problem. Every client gets 100%. Period.

And if you don’t agree, then what the heck are you doing here?

When people complain that “there are too many lawyers,” what they really mean is that there are too many bad ones. There is always demand for good lawyers to deal with the intricacies of modern life. If anything, people need more good lawyers than ever before — smart, wise, honorable people to help navigate the increasingly byzantine regulations, to make sure the complex business deals actually work, to represent all the non-lawyers who keep suing each other in our litigious society. And of course to prosecute and defend those accused of crime.

The problem is that it’s way too easy to become a lawyer. If you’re not picky about where you go to school, you can get a J.D. despite having little aptitude for it. And the bar exam is a very low bar, believe it or not — you only need the equivalent of a “D” and once you get that “D” you never need to take it again. There are a lot of misguided people out there who go to law school for the wrong reasons, and graduate to keep filling the ranks of the “too many lawyers.”

So it made us uneasy to learn that people with high LSAT scores are significantly less likely to even apply to law school these days, while those with lower scores are still applying almost as much as before.

It’s not surprising, of course — obviously, smarter people are going to be more likely to realize that it’s harder to get a job as a lawyer these days, and decide to go elsewhere. But the upshot is that the proportion of “good” lawyers is only going to shrink, and the “too many” will become even more numerous.

The solution is to make the profession more picky about who can and cannot become a lawyer. The problem is how to do it.

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Back in the bad old days, of course, the problem was that the profession was more picky. Just in a bad way. Minorities were not welcome, women were not welcome. Hell, folks who needed to work for a living were not welcome — we didn’t want their kind, or their night schools. (Many of the ABA’s more bizarre accreditation requirements are holdovers from these bad old days.) So there are some historical negative connotations to making it harder to be a lawyer.

Nowadays, though, people who get upset at barriers to entry don’t really cry racism, sexism or classism any more. Instead, they cry protectionism — that those who have the jobs want to protect them from competition. Or they cry up the free market — let anyone try it who wants to, and let market forces shake out the chaff.

The protectionist argument is one of the stupidest arguments, ever. Increasing the number of sucky candidates isn’t going to have much of an effect on the hiring of qualified people. Seriously, nobody is afraid that sucky JDs are going to come along and take their jobs. Letting more of them in will only cause more competition for low-tier jobs, making the complainers’ problem worse. This argument tends to be made by dissatisfied law grads who find themselves unable to compete in the modern market, and making it kinda demonstrates why.

The free-market argument isn’t so much stupid as unwise. Those who make it tend to see the law as a business rather than a profession — they fail to realize that we have clients, not customers. Clients don’t just drop in, pay for a service, then leave; clients entrust lawyers to handle important life matters. Lawyers don’t sell commodities; they put aside their own interests to serve their clients, and the client’s interest comes first. We are fiduciaries, advisers, confidantes, and we are trusted to make decisions on our clients’ behalf.

This is not a relationship that free-market forces can regulate. Clients of bad lawyers suffer, but there is not much the market can do about it. In a free market, it’s nigh impossible for clients to tell a good lawyer from a bad one — asking around is only as useful as the people one knows to ask. Bad lawyers sometimes thrive, simply because their name is known. The way real people find lawyers in real life is essentially random. A free market also needs quick reaction to bad service, but bad lawyering may not have consequences until years too late to make a difference to the lawyer’s reputation. And clients who are unsophisticated enough to hire a bad lawyer in the first place aren’t as likely to realize that they got shafted. The free market just cannot work to price out bad lawyering very efficiently, if at all — and in the meantime what about the clients who suffered? It’s not like they can return their counsel like damaged goods — they’re stuck with the consequences. Relying on the market to price out the bad and reinforce the good is a recipe for injustice, and would make things even worse.

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The solution is to be, not protectionist, but elitist. Make it harder to enter the profession, not based on race or class, but on proven ability. Make it harder for the bad ones to get in.

How? You’re never going to dissuade all the misguided folks who continue to go to law school for the wrong reasons (e.g., to make a lot of money, or to get a secure career, or any other self-directed reason, or just because they can’t think of anything else to do). They’re always going to be there. And law schools being the cash cows they are, there will always be someplace willing to take their money and hand them a J.D.

The ABA can make it harder for schools to get accredited, though. Not with the old racist/classist nonsense like requiring the most expensive and inefficient law libraries imaginable (to price out the lower incomes) or obscure residency requirements for students with day jobs. Those old rules and others of their ilk should be canned, because they make it harder for precisely those students who statistically make better lawyers. Instead, the ABA should require schools to meet a demanding percentage of first-time bar takers actually passing the thing. That will force them to weed out students who won’t make it, rather than stringing them along. And penalize schools with huge washout rates, so they don’t accept students who shouldn’t be going in the first place.

At the same time, the bar exam itself needs to be changed dramatically. At present, it’s little more than a memorization exercise. It doesn’t test the things that make good lawyers: judgment, reasoning, actual skills. It’s not meant to — it’s really only a hazing exercise you have to go through to join the club. Once you’ve done it, it’s over, and you never have to prove yourself again.

The bar exam needs to be replaced with a demanding practical examination that requires candidates to prove (1) they know what they’re doing, (2) they can think through the consequences of what they’re doing, and (3) they can make wise decisions. There should be a general exam for new JDs, followed by specific exams required before practicing in specialized fields. And lawyers should be compelled to be re-certified every so many years, to prove they still know what they’re doing.

So a lawyer who wants to prosecute or defend criminal cases might need to demonstrate a working knowledge of the rules and procedures, actual good judgment in hypothetical “what would you do” situations, and an up-to-date understanding of relevant constitutional law. A lawyer who wants to do tax work wouldn’t need to know any of that, but might instead need to be able to demonstrate a basic understanding of individual and corporate tax law, an understanding of the important regulatory processes, and actual good judgment in advising hypothetical clients. Each practice area would have its own certification, required for practicing that field of law.

Make it harder for schools to accept and graduate people who aren’t likely to make good lawyers. Make it harder for those same people to become lawyers and practice. Not to be mean, not to be a jerk, but to ensure that when people entrust their lives at random to a lawyer, there’s a decent chance that their trust is well placed.

With a hat tip to our Uncle Ralph, here’s a link to yet another fMRI study bearing on criminal law. Makiko Yamada and colleagues have published in Nature Communications their study “Neural Circuits in the Brain that are Activated when Mitigating Criminal Sentences.”

The researchers asked people to review the facts underlying 32 hypothetical murder convictions. Half of them were designed to elicit sympathy for the convicted murderer, the other half to elicit no sympathy. The test subjects were told that each murderer had been given a 20-year sentence, and they were asked to modify the sentences. Unlike previous studies, there was no question as to guilt or innocence — the only issue was whether the sentence should be more or less than 20 years under the circumstances. A functional MRI scanned their brains to see what neurons were firing as they made their decisions.

The question intrigued the researchers because such decisions are not only high-stakes, but also because one must first have an emotional reaction, and then convert it into a cold quantification — the number of years of the sentence.

After crunching all the numbers, there appeared to be a strong correlation between activity in the portions of the brain highlighted in the image above, and reduced sentences.

To their credit, the researchers really don’t conclude any more than that — that certain brain areas seem to be involved in decisionmaking influenced by sympathy. And someone who’s more likely to be sympathetic is also more likely to have more activity in those neurons.

But they do note that this raises other questions — such as to what extent neurology may cause deviations from an objectively “correct” sentence, either from someone who was too sympathetic or not sympathetic enough. Flights of fancy about brain scans as part of voir dire or appeals, however, are best left to places like MSNBC.

A more useful conclusion is hinted at by the study, however: Those with a more active dorsomedial prefrontal cortex may indeed be more likely to let someone off easy, if their circumstances are sympathetic. But they are also more likely to throw the book at someone whose crime is more viscerally offensive.

In other words, your touchy-feely juror may be great if your client has had a rough life, but that same juror is also the one who’s going to demand the harshest sentence for a client who did something particularly cruel. The sympathy thing goes both ways.

Judgment is the criminal lawyer’s stock-in-trade. The ability to assess the risks of a situation, and choose the better course of action, is the value that lawyers bring to the criminal justice system. It doesn’t matter if they’re defense attorneys negotiating a deal or fighting it out at trial, or if they’re prosecutors deciding whether and what to charge — their value is their judgment. The better the judgment, the better the lawyer.

It’s therefore critical that criminal lawyers have some understanding of how and why people take risks. In advising a client inclined to take a bad risk, the lawyer can’t really change that perception without knowing what’s causing it. And such an understanding also helps one spot one’s own inclinations to error before it’s too late.

This is not common sense. (In fact, common sense is usually the enemy here.) It’s insight. The ability to see how people act, and realize — aha! — why.

Fortunately for the rest of us, there are amazingly smart people out there who do that all day. When you find one with real insights about why people take the risks they do, you’re probably gonna want to listen.

That’s why we’re taking a moment to point you to Danny Kahneman (that’s his picture up there).

Who is Danny Kahneman, you ask. You’re not alone. If you’re not an economist, you can be forgiven for not knowing he won the Nobel Prize for basically inventing the field of Behavioral Economics. If you’re not a psychologist, you can be forgiven for not knowing he’s considered “one of the most influential psychologists in history, and certainly the most important psychologist alive today.” If you’re not a foreign-policy wonk, you can be forgiven for not knowing of his significant ideas on the evaluation of risks in wartime. He’s one of the most insightful and relevant people nobody’s ever heard of.

As it happens, a lot of his insights are directly relevant to the practice of criminal law. Trying to decide the likely outcome of that trial? You’re probably sizing up the particulars of your case and comparing it to your own past experience. Maybe you’re applying some anecdotal generalizations about this courthouse, based on things you’ve heard over the years. And you could be way off base — your assessment is more likely to be accurate if you ignore the particulars and just look at the big picture. Namely, the statistical distribution of real-life results in cases like that.

Oh, your courthouse doesn’t keep those kinds of statistics? Then at least understand that, no matter how realistic you think you’re being, cognitive biases not unlike wishful thinking are throwing you off base without your realizing it.

Avoiding such cognitive biases is one of the main reasons for hiring a lawyer in the first place — why we say someone who represents himself has a fool for a client. The lawyer is an agent, so should be less emotionally invested in the outcome and more able to assess things accurately. And experienced lawyers at least have some data beyond the particulars of this one case, on which to base their judgment. So ask yourself to what extent your desire to win, your emotional connection to the client or the issue, may be clouding your judgment. Better yet, just assume that it is, and adjust your outlook accordingly.

That’s just one example, loosely based on his ideas in reference-class forecasting and the planning fallacy. You should also check out his Prospect Theory. Maybe you’re a defense attorney, trying to help a client decide whether to take a plea or go to trial. You’re convinced that the odds of success at trial are great, and your client agrees, but he still wants to accept a fairly harsh plea. Or maybe it’s the other way around — your client wants to roll the dice with a jury, even though the case is a slam dunk and there’s a sweet offer on the table. Either way, your client isn’t being rational, and you can’t figure out why. If you don’t do something, he’s going to screw himself.

Well, Prospect Theory shows that people aren’t rational. They’re more risk-averse than they ought to be, when choosing between things posed as “gains.” When options are presented as “losses,” people are prone to take more risks.  A year added to a sentence is significantly more valuable to a client than a year whittled off, though they both consist objectively of the same 365 days.

Your client’s looking at 10 years after trial, but you figure a 70% chance of acquittal? Rationally, going to trial is the equivalent of taking 3 years. If the offer is 7, the rational decision is to go to trial. But your client doesn’t see it that way. His starting reference point is that 7-year offer. He just sees those extra 3 years if he loses at trial, and they far outweigh the 4 years he objectively saves by going to trial — and they even outweigh the 7 years he saves if, as is probable, he wins.

The other client’s looking at 10 years after a trial he is almost certain to lose. The offer is 6 years. But this client’s reference point is not the offer, but a walk. He’s not comparing a gain and a loss, but two losses. The rational actor would take the 6 at once. But the irrational, normal human being, is going to say “fuck it, let’s roll the dice,” even though that’s probably going to slam him with 10.

What do you do about each one? Maybe couch the discussion in different terms. Get the client to at least look from a different reference point, one that helps his perception more closely match (what you believe to be) objectivity. Make the more objectively reasonable outcome stand out (we often choose that which is more prominent, see lineups). At least give the client a chance to reach a different conclusion, if you’re convinced he’s being irrational.

Prospect Theory also helps explain why a prosecutor will continue on with a case, well after he should have folded, because he’s already invested so much time and resources into it. It’s like the gambler who keeps throwing good money after bad, and equally irrational. It only makes the loss worse. The trick is to persuade the gambler that sunk costs are indeed sunk, and that it makes sense to just move on. It’s easier, actually, with a gambler who’s risking his own money (though it’s still damn hard to do). A prosecutor whose only risk is a loss at trial (after all, the budget isn’t coming out of his pocket) isn’t really risking much if he keeps going.

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By the way, the fact that people are not rational actors has been solidly proven by experiment and empirical data. It’s not “theory” as in a mere supposition, but “Theory” with a capital “T,” which means “as close to God’s own truth as is humanly possible.”

This has HUGE implications for criminal law, beyond the tactics and strategy of a particular case. Our entire jurisprudence is built on the presumption that people, in general, are rational actors.

Our sentencing — both its severity and its modern history of reform — is intended to be rational.  Severity, especially in nonviolent crimes, is intended to deter people and make them think twice before succumbing to temptation. The US Sentencing Guidelines and similar restraints on discretion are intended to have the same effect by making outcomes predictable.

Meanwhile, our jury instructions are presumed to be applied rationally and correctly. Police are expected to objectively try to catch the right person. Judges are expected to apply the law objectively.

What really happens? Nobody is deterred by the severity or certainty of a specific sentence. If they are deterred at all (which is not usual), it is by the risk of punishment in general — the actual potential sentence is irrelevant — or by social disapprobation. No offender sits down beforehand and even roughly says to himself “hmm, if I steal this million dollars, there’s a 20% chance that I’ll be caught and sentenced to 10 years. That’s two years for a million dollars. Is two years of my life worth a million dollars?”

Similarly, jurors often try to follow what portion of the instructions they remember, but they usually wind up voting for the outcome they believe to be “right,” rather than the one dictated by the cold unfeeling law. Emotion plays a large role in this ostensible rational undertaking. Guilty people walk even when they actually were proven guilty, because the jury just didn’t want to convict (usually explaining it by saying “we thought he did it, but we just needed more” — ignoring that they were already convinced beyond a reasonable doubt). People who should have walked go to jail because jurors threw the prosecution a bone, and let them win what they thought was a throwaway count. People go to jail because the jurors are angered by the crime and want to punish someone, and these happen to have been the ones sitting in the defendant’s chair.

Police who should rationally focus on catching the right guy get all emotionally invested in the one guy they happen to be targeting. Confirmation bias rears its ugly head, where evidence of innocence is disregarded because it doesn’t fit the “truth,” and facts whose meaning is open to interpretation are only seen as confirming that “truth.” This is not a conscious, purposeful attempt to screw over an innocent person; the police who do this (and the prosecutors who keep it going afterwards) sincerely believe it. They just focus more and more on the innocent guy, the actual offender remains free to strike again, and the Innocence Project gets another case.

Our society keeps making strides towards greater justice, and the past decade has seen many. Perhaps the time is ripe for our jurisprudence to start recognizing that irrational behavior is the norm, and adapt our procedures to take that into account. Start to do so, anyway. Meanwhile, we lawyers and judges acting within the system would do well to acknowledge that which science now deems well-settled.

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Well, that’s a digression and a half. Getting back to the main topic, go read yourself some Kahneman. There’s articles by and about him all over, just Google his name. A good place to start is this series of excerpts from a Master Class he taught a few years back called “A Short Course in Thinking about Thinking.” Then go check out some of the scholarly journals, if you’re so inclined. (Applying some of my own confirmation bias, I’ll recommend Richard McAdams & Thomas Ulen’s 2008 piece at Chicago Law School, “Behavioral Criminal Law and Economics,” which makes some of the same points I just made above, and is therefore True with a capital T.)

Almost from our first post, we’ve written here about developments in brain-scan technology and its applicability to criminal law (see here, here, here and here, for example). So needless to say, the past nine days have been of great interest, as the research behind neuroimaging’s claims has come into hot dispute.

Now, just because our motto is “truth, justice and the scientific method,” that doesn’t make us qualified to assess the merits of the underlying science. Our observations on the actual science wouldn’t be worth the pixels. But fortunately, as with most such disputes, the issue isn’t so much the data as the math — the statistical analysis being used to make sense of the data. And we’re somewhat confident that we can at least report on such issues without getting them too wrong.

So briefly what’s going on is this:

First, lots of neuroimaging papers out there, some very influential, see apparent connections between brain activity at point X and mental state A. But what are the odds your reading of X was just a fluke, and the real spot is somewhere else, over at Z? If you do enough tests, you’re going to see X every now and then just by chance. So you have to figure out what the chances are that X would be a random result, instead of the real thing, and apply that correction to your statistical analysis. As it happens, however, for a long time the neuroimaging folks weren’t using an accurate correction. Instead, they were applying a lax rule-of-thumb that didn’t really apply. It’s since been shown that using the lax math can result in apparent connections to variables that didn’t even exist at the time.

On top of all that, as neuroscientist Daniel Bor mentions in his excellent (and much more detailed) discussion here, there’s reason to suspect that a number of prominent papers may have had their numbers fudged. With the subjectivity of judgment involved, and the vastness of the data being analyzed, it’s easy for even an honest researcher’s bias to affect the results. With advancement hinging on publication, there is also a motive for active massaging of the numbers to get a publishable result — a temptation to which Bor says some do succumb.

The upshot is that a heck of a lot of the papers on which this growing field are based… are not as reliable as was once thought.

That’s not good for scientists, who waste a lot of time and money trying to replicate unrepeatable results. It’s not good for patients who might be mis-diagnosed because of a connection that wasn’t really there. And for the purposes of this blog’s subject matter, it’s not good for defendants or law enforcers who may be undermined by bad science. It’s bad enough that certain pseudosciences are still used to put people in jail, despite their unreliability, simply because judges have been calling them reliable since Victorian times. It’s worse still if new sciences, badly understood and wrongly applied, help convict the wrong people.

Some courts have begun showing a willingness to use neuroimaging as evidence, if only in civil cases. Until the science shakes out, however, that trend needs to to be put on hold. The fMRI lie detectors and recidivism predictors still belong to the world of science fiction, for the moment. Let’s not start using them — especially not to deprive people of their lives or liberty! — until we’re certain that they’re based on science fact.

Tomorrow’s issue of the Economist has a brief piece on some new drug policing in Virginia: “Cleaning Up the Hood: Focusing on drug markets rather than users means less crime.” The article is on DMI, or Drug-Market Intervention, a law-enforcement strategy that has been spreading around the country since it was first introduced in North Carolina about eight years ago.

DMI is a combination of community involvement and police commitment that focuses on street dealers. The community is encouraged to report dealers. Police then notify the dealers that they know who they are, but promise not to arrest them if they take part in an intervention. The dealers are confronted with community leaders who show them what their dealing is doing to the community — and who promise to help them change their ways if they’re willing. The dealers are given a second chance. Meanwhile, the police increase their presence in the area, and those caught dealing now get locked up. Quick police response and community involvement increases people’s willingness to report dealers, and a cycle begins.

Law enforcement has long known that you don’t eliminate a drug problem by going after demand — addicts and users are too numerous, and no matter how many you lock up they just keep coming. Meanwhile, street dealers continue to operate, destroying the safety and livability of the community. The addicts they attract, the nastiness they inflict, the violence they commit, and the fear they instill all combine in ruinous ways, engendering more crime and blight.

Buyers are easy to arrest, though, and if a police force is going to be judged by its arrest numbers rather than actual results (as politicians are wont to do), then there is a strong temptation to arrest the users. Not only does this do nothing to stop the dealing problem, the users are typically charged with modest possession offenses that put them right back out to buy again.

Drug courts and similar diversion programs do actually work wonders with helping users break their drug habits and overcome the life-skill deficits that often led to them. But those programs are typically reserved for those charged with crimes to begin with, many times only those charged with felony possession, and of those only the defendants who are likely to succeed in the program to begin with. They’re great, but they don’t solve the underlying problem.

These DMI initiatives recognize that, like so much else in society, it is community involvement that makes all the difference. You can have a fantastic school filled with amazing teachers, but if it’s in a community that does not value education and is not involved in the school, it’s going to fail along with its students. You can have a brilliant social program with dedicated workers, but if it’s in a community that doesn’t share the same goals and drive, it’s going to be a flop. And you can have the most thorough drug-enforcement police in the world, but unless the community is on board nothing is going to change. They’ll just keep churning arrests, with an endless supply of replacements for every dealer and user they lock up.

The community attitude is hard to change. Decades of “that’s the police’s job, not mine” plus “the police are the enemy” plus “the police won’t really protect me” plus “the bad guys will hurt me” won’t go away overnight. But it’s necessary if any real change is going to happen.

If you want people to stop selling drugs, you do that not by making drug dealing illegal, but by making it socially unacceptable. People may not like the way things are, may not like living in fear and unpleasantness, but that’s not the same. It’s not dislike of the situation, but social mores that these things are just not done here, that make changes.

Other similar initiatives have been successful before. In NYC, for example, residents of blocks that had been taken over by drug organizations voluntarily waived some of their Fourth Amendment rights to enable the police to make searches and root out the dealers that otherwise couldn’t have happened, forcing the dealers to relocate and change their operations to be less damaging to the community. Even without such overt governmental involvement, social shifts have been the cause of the greatest increases in public safety.  Gentrification and influxes of new residents who are unwilling to sit back and let the criminals mess up their neighborhood are amazingly effective at reducing street crime.

If this all sounds a little “blame the victim”-ish, that’s because it sorta is. Street crime proliferates in communities where the residents allow it. When the residents become less tolerant of it, they become not only more likely to insist on law enforcement, but also set societal standards that become a new norm, in which such crime is less likely to be seen as an option to begin with. It takes time, but it’s the surest and most effective method of change there is.

So kudos to those police forces that aren’t just making arrests, but are doing something to effect societal change. It’s thankless work that loses all those arrest numbers from whence budgets come (and all that overtime pay). But law enforcement’s job is not to get budgets and overtime, but to reduce crime. You guys are doing your job. Keep it up.

Prompted by a tweet from Scott Greenfield this morning, we read a short editorial the New York Times did a couple of days ago, arguing that federal and state prosecutors should adopt open-file discovery policies, in order to limit Brady violations and promote justice. We’d missed it the first time around, because … well, because we never bother to read NYT editorials.

This one is decent enough, so far as it goes. The Times points out that it’s up to the prosecutor to decide whether something is material enough to disclose under Brady, and so defendants very often don’t learn of facts that might have been favorable to them. With full disclosure, perhaps fewer defendants who are over-charged or improperly charged would plead guilty, and perhaps fewer wrongful convictions might result.

Yeah, but …

Here’s the thing: “Open file” policies are rarely that. Prosecutors’ offices with open file policies rarely (if ever) make their complete file available to the defense. More often “open file” just means they comply with their existing discovery obligations without putting up too much of a fight.

Prosecutors in general are unwilling to engage in true open file discovery, and for reasons that are anything but nefarious. It would be like playing high-stakes poker in a game where you and only you have to show all of your cards, all of the time. Unless you have four aces and a joker every hand, that’s a losing strategy. Defendants will be able to see all the weaknesses of the evidence with plenty of time to exploit them. People who “should have been” convicted will go free.

In practice, prosecutors only show their hand if it’s going to make the defendant fold. Or to the extent that it will persuade the defendant to fold. Show the ace, but don’t bother showing the 2, 6, 7 and jack.

Of course, it’s a misplaced concern to worry that people who “should have been convicted” will go free. If the evidence does not establish guilt beyond a reasonable doubt, then it doesn’t matter whether they did it or not, they don’t deserve to be convicted. It’s not even correct to think of whether they deserve to be convicted — the concern is whether the State is entitled to punish them. If the government’s evidence, all of it, is too weak to convict, then the State doesn’t get to punish. (What the defendant deserves only enters into it when asking how much punishment to inflict.)

The proper concern is whether people are being convicted when the evidence was insufficient to support a verdict of guilty beyond a reasonable doubt. If the evidence — all of it together, not just the good bits — is too weak to support such a verdict, then the prosecutor has no business charging the case to begin with.

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That is a concept that some prosecutors’ offices, and some prosecutors, understand better than others. We often tell the story of how, when we were interviewing with DA’s offices in law school, we politely walked out of our interview with the folks from Dade County. It came out during the interview that they sincerely believed that their job was to zealously prosecute whomever the police arrested, just as the defense attorney’s job was to zealously defend him. The precise topic was whether one should prosecute a case in which one was not personally convinced beyond a reasonable doubt of guilt. At first, I thought they (there were two of them) were just testing me, and continued arguing that that is of course not the prosecutor’s job at all. But at length it became clear that they were very serious. So we got up, thanked them for their time, and said we probably wouldn’t be a good fit.

Since then, both in our many years as a prosecutor and subsequently as a defense attorney, we’ve encountered many offices with mindsets similar to the folks in Miami — the job is to fight for the conviction. Many don’t even have the personal discretion to choose otherwise (apparently forgetting that abdicating or failing to exercise one’s discretion is itself an abuse of that discretion, and serious misconduct).

That’s not how we were trained. Looking back, it’s amazing how fortunate we were to be guided by Peter Kougasian, Bob Hawkes and Matt Menchel — who insisted that we decline to prosecute any case we did not sincerely believe we could prove beyond a reasonable doubt, and were not ourselves convinced beyond a reasonable doubt. Peter (our first bureau chief), in fact, firmly stated that if he ever insisted on our prosecuting a case we did not believe in, it was our duty to resign rather than go forward. And many’s the time we had to sit through the fury of a police officer whose case we declined to prosecute. (“You know he did it, I know he did it, but we can’t prove it, so go out and get him next time and let’s hope the evidence is better next time” just doesn’t seem to mollify some people.)

It’s not how we were trained, but it’s how a lot of prosecutors are trained, and how a lot of them do their job. But even for those of the highest ethics and strongest character, it is very easy to forget that the job is not about what the defendant deserves, but what the evidence can show.

And when the evidence is weak, or some of the evidence might actually hurt the prosecutor’s case, and prevent that defendant from getting what he deserves, the temptation is strong to simply not share it. Temptation, nothing — it’s a full-on moral judgment that sharing it before trial would categorically be the wrong thing to do.

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So it’s really not good enough to insist on an open file policy. Stuff that prosecutors don’t want to share with the defense will simply not make it into the file, or more realistically into that portion of the file that would get shared (much will be held back in any case as attorney work-product, witness protection concerns, etc.).

Sure, go ahead and impose such policies if it makes you feel better. But don’t think they’ll solve the underlying problem.

In lieu of a regular blog post, I figured I’d leave a sample of the illustrated guide to crimlaw I’m doing on Tumblr (a link to the full series is over there on the right). Regular writing will resume shortly. Enjoy.

The January 30 issue of the New Yorker has an intriguing article by Adam Gopnik, “The Caging of America: Why do we lock up so many people?” Perhaps we’ve grown a bit cynical, but we expected yet another inane media whine about increasing rates of imprisonment “despite” fewer crimes being committed. We were surprised to find a thoughtful — at times insightful — look not only at the reality of American incarceration, but also at what causes crime to go up and down. It’s rare enough for a news or magazine writer to do even that much. To his credit, Gopnik goes one further, making a creditable attempt at objectivity — dismissing, debunking and blaming both the right and the left — though his apparent left-ish leanings still come through from time to time.

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Gopnik’s main points are these:

Incarceration is happening on an unprecedented scale in our history. It’s been growing ever faster since the 1970s. Its ubiquity and brutality have become accepted parts of the culture. Northern and Southern thinkers have come up with different explanations and solutions. Northern thinkers like William J. Stuntz see prison as a place for rehabilitation, and the injustices as the result of our system’s reliance on procedural correctness rather than individual justice, from the Bill of Rights through the present day — a problem to be solved by letting common sense and compassion be the focus on a case-by-case basis. Southern thinkers like Michelle Alexander see prison instead as a means of retribution, and the injustices of the system are part of its design to trap and control young black men.

As incarceration rates more than tripled between 1980 and 2010, the crime rate itself went down. “The more bad guys there are in prison, it appears, the less crime there has been in the streets.” The huge growth in imprisonment, and the policies that led to it (such as harsher drug laws, zero-tolerance policies, restricted sentencing discretion, etc.) were a reaction to the big-city crime wave of the 1960s ad 1970s — a crime wave that owed its existence to liberal policies that had crossed the line from mercy to abdication. Meanwhile, research began to reveal that rehabilitation doesn’t work, and bad guys weren’t getting better, and so all you could do was lock them up to keep them off the streets.

Starting in the 1990s, crime rates began to drop — by 40% nationwide, and 80% in New York City. Demographic shifts don’t account for it. Neither do broken-window policing, keeping the really bad guys behind bars, welfare reform, or other right-wing explanations. The left’s insistence that crime comes from poverty, discrimination and social injustice didn’t work, either, as none of those things changed enough to account for the drop in crime. The economy didn’t have an effect.

What did have an effect in New York City, however, was CompStat — the NYPD’s use of statistical analysis to focus police presence in places where it was needed most — with significant results on the occurrence of crime in those “hot spots.” The NYPD also began aggressively stopping and frisking people who fit the profile — not a racial profile, as everyone where it was happening were of the same race, but instead a “social” profile of “the thousand small clues that policemen recognized already.” Poor communities had to put up with more police intrusion, but they benefited from “a disproportionate gain in crime reduced.” (And though the NYPD uses stop-and-frisks of low-level offenders to identify them in the system in case they commit a real crime later, the other police forces around the country use it to actually lock up marijuana possessors — an offense that’s been decriminalized in New York since forever, but that still gets you jail everywhere else, it seems.) The result in New York City has been criminals being forced to stop committing crimes brazenly in public — many have either taken their activities indoors (and thus ended much need for violent turf wars) or stopped altogether.

Preventing criminals from doing their thing in place A did not lead others to do it in place B, but rather to nobody doing it at all. People stopped getting used to crime happening, stopped seeing people they knew committing crimes, and THAT was the biggest factor of all.

So what really happened was a cultural shift. Crime stopped being so much “something everyone’s doing,” and so much less likely to be something an individual would consider. Conservatives don’t like this, because it means it’s pointless to get tough on criminals. Liberals don’t like this, because it means it’s pointless to be nice to criminals.

So back to prison. If it doesn’t rehabilitate anyone, and it has hardly any deterrent effect whatsoever, then nobody should be in prison for a nonviolent crime. Locking up marijuana dealers and Ponzi schemers is pointless. They’d be just as deterred by the threat of lost reputation and assets, and having to do community service as their new full-time job — and if that won’t deter them then prison won’t either. Instead, prison should be reserved for that one person in a thousand who is a violent threat, or who has committed a truly awful crime.

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 It’s a lovely bit of writing, and our TL;DR précis doesn’t do it justice. Longtime readers of The Criminal Lawyer will note some common ideas, so it’s no surprise that we think so highly of it.

There’s a lot of scholarship going on right now about what’s wrong (and what’s right) with the American criminal justice system. Gopnik does a good job of summarizing what’s being published out there right now, and putting his own spin on it. Of course there are things we’d say differently, things we disagree with, points we think unrealistic. We could add plenty of things like how poor minority communities in the late ’90s actually teamed up with law enforcement, voluntarily and expressly waiving some of their Fourth Amendment rights to enable the cops to catch the drug dealers who were destroying their neighborhoods. We could argue that the whole “Northern/Southern” thing is a load of hogwash on both sides. We could take issue with the characterization of what conservatives actually believe. Still, we’re here not to bury Gopnik, but to praise him. This one’s not about what we think, for a change.

So give it a read. You won’t regret it.

Andrei Chikatilo was serial killer who murdered at least 56 young women and children starting in 1978 until his capture in 1990. The details are as bad as one might expect, and apparently the murders and mutilations were how he achieved sexual release. His killings seemed unpredictable to investigators at the time, and even in retrospect there appears to be no clear pattern.

Now, however, UCLA mathematicians Mikhail Simkin and Vwani Roychowdhury have published a paper where they see not only a pattern, but one that is meaningful to those who might want to stop other serial killers. In their paper, “Stochastic Modeling of a Serial Killer,” published a couple of days ago, Simkin and Roychowdhury discovered that the killings fit a pattern known as a “power law distribution.” One of many kinds of statistical distribution (the bell curve being another), power law distributions are often found for out-of-the-ordinary events like earthquakes, great wealth, website popularity and the like.

First, they looked at a timeline of his killings. They saw apparently random periods of inactivity. Each time Chikatilo started killing again, however, the next murder would come soon after. And the one after that even sooner. And so on and so on until the next period of no killing.

The study doesn’t take account of the reasons for two of the longer pauses — Chikatilo’s first arrest and detention on suspicion of being the killer, and the period where the media started reporting on the investigation — but the reasons aren’t important. What’s important is being able to make some kind of sense out of the seemingly random events.

What they noticed was that, when these ever-increasing murders were plotted on a logarithmic scale, they came out in almost a straight line — indicating the possibility that a power law might be at work here. What’s more than that, they noticed that the curve’s exponent of 1.4 was pretty darn close to the 1.5 found for the power curve of epileptic seizures. What if (they wondered) the killings fit a neurological pattern? What if, like epileptic seizures, psychotic events like these killings came about when an unusually large number of neurons in the brain started firing together?

So they plugged in some givens of what is known about how neurons work, modeled on how epilepsy works. They made the model a little more realistic — seizures come unbidden when the conditions are met, but killers probably need some time to plan once their brain is ready for the next attack. Then they ran a simulation.

The simulated probabilities for the length of time between murders tracked the real-life data almost perfectly.

In other words, if you know when the last murder took place, you can calculate the probability that another killing will happen today. And the more time has passed since the last one, the less likely another will happen.

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Fascinating stuff, but so what? The so what is that statistical analysis has become a big part of modern crimefighting. CompStat has gone from an attempt to see where crime was happening in early 1990s NYC, to a tool used by police forces across the country to predict where to post their officers tomorrow. Homeland Security has a new thing they call FAST (for Future Attribute Screening Technology) they claim to be 70% accurate in the lab, that is said to calculate the probability a given individual is planning to commit a crime. “Predictive policing” has gone from science fiction to routine in the blink of an eye.

An appreciation of what statistics can — and cannot — do is becoming a big factor in law enforcement. Stats can’t tell you who the perp is, but they’re getting better and better at figuring out where and when the next crime might happen. Police departments that react responsibly, by focusing surveillance and manpower on those points where they are most likely to do some good, have a better chance of reducing crime rates with a more efficient use of their resources.

This latest study provides yet another tool, perhaps, for better and more accurate use of statistics by law enforcement. Catching a serial killer by focusing resources based on when and where he’s likely to strike next is a hell of a lot better than relying on the junk science of behavioral profiling.

Of course there’s always the risk that the numbers will be misjudged, that the models will be faulty, that the probabilities will be turned into junk science justifications for injustice. That’s a risk any time law enforcement meets math & science.

But when the numbers aren’t used to point the finger of guilt at a particular person, but rather as a guide to help catch whoever it might be (or prevent him from striking again), then it’s not a bad thing. If it helps law enforcement protect the rest of us, without violating our rights or punishing the wrong people, then hooray for numbers.