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Saturday, June 27, 2015

Bail Decisions Based on Algorithms

The New York Times has this interesting report on using algorithms to make bail determinations. From the article:

Setting bail is a difficult task for judges. They must try to foretell whether the defendant is likely to commit another crime, hurt someone or skip out on the next court date.
Now comes help in a distinctly modern form: an algorithm. 
After two years of testing, the formula, developed at a cost of $1.2 million by the Laura and John Arnold Foundation, is being rolled out to 21 more jurisdictions, including states like Arizona and New Jersey and cities like Chicago and Pittsburgh, the foundation announced on Friday. The algorithm gives defendants two scores — one for their likelihood of committing a crime and one for their risk of failing to appear in court — and flags those with an elevated risk of violence. 
. . . 
The Arnold assessment has been met with some skepticism because it does not take into account characteristics that judges and prosecutors normally consider relevant: the defendant’s employment status, community ties or history of drug and alcohol abuse. Instead, after crunching data on one and a half million criminal cases, researchers found that fewer than 10 objective factors — basically age, the criminal record and previous failures to appear in court, with more recent offenses given greater weight — were the best predictors of a defendant’s behavior. Factoring in other considerations did not improve accuracy.
Bail determinations are an important, but often overlooked step of the trial process. If somebody is required to post bail, that person may be taken into custody if he or she cannot afford it. The result is that this person will face higher pressure to go to trial quickly or reach a hasty resolution of their case in order to get out of custody. Charlie Gerstein notes the pressure that a bail determination can induce on plea bargain in his article, Plea Bargaining and the Right to Counsel at Bail Determination.

Given the substantial impact that a bail determination may have on the pretrial and trial process, I am happy to see steps being taken to make decisions on bail more accurate. The article notes that in a jurisdiction where the Arnold assessment has been adopted, jail populations have decreased due to fewer instances of requiring bail, but crime has not increased.

It will be interesting to see if more jurisdictions adopt and apply formulas in deciding to require bail. If more jurisdictions turn to algorithms, hopefully the positive results reported by the Times will be reflected on a wider scale.

Monday, June 22, 2015

The Supreme Court's "Superspecial" Kimble Opinion

Today, the Supreme Court released several opinions, including Kimble v. Marvel Entertainment. Kimble involves the question of whether a party may contract for payment of patent royalties after the patent's expiration. The opinion has attracted a great deal of attention -- not due to its answering this question in the negative and adhering to the precedent set in Brulotte v. Thys Co., 379 U.S. 29 (1964) -- but instead because of its numerous references to Spider-Man and superheroes. The case, after all, includes Marvel Entertainment as a party, and concerns "a toy that allows children (and young-at-heart adults) to role-play as 'a spider person' by shooting webs—really, pressurized foam string—“from the palm of [the] hand.'"

For example, in the concluding paragraphs of the majority opinion, Justice Kagan notes;

What we can decide, we can undecide. But stare decisis teaches that we should exercise that authority sparingly. Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “SpiderMan,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”).
Coverage noting the references in Justice Kagan's majority opinion can be found here, here, here, and here.

Also of note is this paragraph:

As against this superpowered form of stare decisis, we would need a superspecial justification to warrant reversing Brulotte. But the kinds of reasons we have most often held sufficient in the past do not help Kimble here. If anything, they reinforce our unwillingness to do what he asks.
After a bit of searching, it appears that this is the first federal court opinion to use the word "superspecial." A few other opinions contain the hyphenated phrase, "super-special" -- often as part of a quotation -- but Kimble is the first to employ the single-word term. Kimble also appears to be the first Supreme Court opinion to use the term, "superpowered." Several opinions in the lower court have employed this phrase (see, e.g., Twentieth Century Fox Film Corporation v. Marvel Enterprises, Inc., 277 F.3d 253, 255 (2002) ("In 1963, Marvel began publishing a comic book series entitled 'X-Men,' featuring a group of young, superpowered mutants led by Professor X, an older, superintelligent leader who sought to train his students and to protect them from a hostile society.")). But Justice Kagan's majority opinion appears to be the first instance of the Supreme Court using this word.

Kimble concerns a technical subject. But due to Justice Kagan's marvelous writing and references, the opinion is a delight to read.

Google to Remove Revenge Porn Images from Search Results

From the BBC:

Victims of revenge porn will be able to put in requests to Google to take down content from search results. 
The images will still exist but won't come up on a list when people look for them.
In a blog post the company's Vice President Amit Singhal said it will apply to "nude or sexually explicit images". 
Google has, in the past, resisted attempts for it to take down online content from those search results. 
The update is expected to come in over the next couple of weeks.
Google's announcement regarding these requests can be found here.

Revenge porn occurs when people post nude photos of somebody else online without the pictured person's consent. It is one of many ways the Internet can be used to harass and attack people. Danielle Citron goes into great deal about revenge porn and other forms of online harassment in her excellent book, Hate Crimes in Cyberspace. And just yesterday, John Oliver's "Last Week Tonight" had this segment on online harassment and revenge porn:

I have blogged several times about state laws that prohibit revenge porn and whether they are constitutional. For example, I think that properly tailored laws can prohibit revenge porn without violating the First Amendment. But while laws prohibiting revenge porn may help combat the problem of revenge porn, laws alone are not enough without the involvement of companies like Google.

While images of revenge porn may still exist online, Google's promise to exclude them from search results upon request is a significant step towards lessening the impact of these images on victims' lives.

Monday, June 15, 2015

It is Legal to be Intoxicated on the Front Steps of a Private Residence in Iowa

So ruled the Iowa Supreme Court last week, holding that Iowa Code section 123.46(2), which prohibits a person from being "intoxicated in a public place," does not prohibit people from being intoxicated on the front steps or porch of a private residence. The full text of the opinion is here. Coverage of the opinion is available here, here, and here.

The Court held that the front steps of a private residence are not a "public place." The Court noted that if a private residence's porch or residence were to be deemed a public place, people could be punished for a wide range of behavior. From the opinion:

[I]f the front stairs of a single-family residence are always a public place, it would be a crime to sit there calmly on a breezy summer day and sip a mojito, celebrate a professional achievement with a mixed drink of choice, or even baste meat on the grill with a bourbon-infused barbeque sauce—unless one first obtained a liquor license. We do not think the legislature intended Iowa law to be so heavy-handed.

Additionally, holding the front steps of a single-family home are always a public place would mean any intoxicated person who responsibly secures a ride home from a sober designated driver could be arrested for and convicted of public intoxication because they traversed the stairs of their single-family house while intoxicated. Iowans “should not suffer a criminal penalty for taking . . . responsible action.” (citations and footnote omitted)
It is important to note, however, that this ruling is limited to private residences. The Court noted at the outset of its opinion that in State v. Booth 670 N.W.2d 209, 215-16 the Court held that the front steps and hallway of apartment buildings are public places.

One other interesting thing that I learned from this opinion was that Iowa Code section 123.46(3) states:

A person shall not simulate intoxication in a public place. A person violating this subsection is guilty of a simple misdemeanor

I suppose I could see a few situations where this law might make sense. People are prohibited from attempting to fool officers into thinking they are intoxicated in violation of section 123.46(2). Although why anyone would ever want to do that is beyond me. Alternatively, this section may prevent sober friends from attempting to camouflage drunk companions by putting on a performance in which all the members of a group appear intoxicated and, in doing so, confound an officer's investigation (a tactic that I will call the Spartacus defense).

But ultimately, section 123.46(3) appears to be an overly strict prohibition, and I suspect that it may violate the First Amendment. If a storyteller or comedian is pretends to be intoxicated as part of an act or play, for instance, that person may be found guilty of simulating intoxication in a public place. Additionally, the law seems vague, since it is unclear how convincing the simulation of intoxication needs to be.

Perhaps the Supreme Court will address this intriguing subsection of the law on another occasion. Until then, those in Iowa who are sitting on their front porches or steps can raise a glass to the Iowa Supreme Court without fear of legal repercussion.

Thursday, June 4, 2015

"Jennifer Mnookin Named New Dean of UCLA School of Law"

So reads the title of this UCLA press release:

Jennifer Mnookin, a nationally renowned evidence law scholar who has held key administrative positions at the UCLA School of Law, has been appointed the school’s dean, Executive Vice Chancellor and Provost Scott Waugh announced today.
. . . 
Mnookin joined the faculty in 2005, and she served as vice dean for faculty and research from 2007 to 2009 and as vice dean for external appointments and intellectual life from 2012 to 2013. She is founding faculty director of the law school’s Program on Understanding, Science and Evidence
“Chancellor Block and I are confident that UCLA Law will reach new heights under Jennifer’s leadership,” Waugh said in an announcement
The 2014 recipient of the law school’s Rutter Award for Excellence in Teaching, Mnookin regularly teaches courses on evidence and torts, as well as more specialized classes in areas such as expert and scientific evidence, wrongful convictions, and law and popular culture. 
“It is a tremendous honor to be selected as the next dean of UCLA School of Law,” Mnookin said. “Having served on the UCLA Law faculty for the past decade, I know firsthand what an exceptional institution it is. We have tremendously capable students, an extraordinarily talented and dedicated faculty and staff, and passionate and involved alumni and friends.
Further, concise, coverage is available at the EvidenceProf Blog. The National Law Journal has this report.

I had the privilege of taking Mnookin's course on evidence law about two years ago. Her approach of combining traditional law school reading and the Socratic Method with in-class exercises, media projects, and video clips made it one of the most interesting and engaging courses I took during my time at UCLA.

Mnookin is an excellent choice for dean. Under her guidance UCLA Law's future is extremely bright.

Tuesday, June 2, 2015

Supreme Court Narrowly Decides Online Threats Case, Elonis v. U.S.

At long last, the Supreme Court has issued an opinion in Elonis v. United States. I blogged about the opinion back when the Court granted certiorari in Elonis to answer this question presented:

Whether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant's subjective intent to threaten, as required by the Ninth Circuit and the supreme courts of Massachusetts, Rhode Island, and Vermont; or whether it is enough to show that a “reasonable person” would regard the statement as threatening, as held by other federal courts of appeals and state courts of last resort.
Yesterday, the Supreme Court held that the "reasonable person" test is insufficient to support a conviction under 18 U.S.C. § 875(c). The Court did not address what level of intent is required to support a conviction, and the Court did not decide whether the reasonable person test was unconstitutional under the First Amendment.

The Court's opinion is available here. Coverage from Lyle Denniston at SCOTUSBlog is available here.

This high-profile case was eagerly awaited by many legal commentators, but ultimately resulted in a very narrow decision. Eugene Volokh notes the narrowness of the case here, and Orin Kerr argues that this narrowness was a good call.

While the Elonis case involved arguments touching on constitutional law, it is important to note that the Court explicitly avoided addressing First Amendment issues. Accordingly, while coverage noting that the Elonis decision is a victory for free speech may involve technically accurate descriptions of the ruling, readers should keep in mind that the Court did not wade into the question of whether 18 U.S.C. § 875(c) violates the First Amendment -- even if the statute is applied in a manner that asks whether a reasonable person would feel threatened by the statement.

Moreover, while the Court did indeed conclude that a defendant prosecuted under 18 U.S.C. § 875(c) must have a level of intent greater than negligence, it is important to note that this does not mean that a defendant must "intend to threaten" somebody in the conventional sense of the word. Summaries of the opinion claiming that defendants now must truly intend to make a threat, while accurate, may be misleading, since this language suggests that an individual must make a statement with the purpose to threaten somebody.

But the Court did not decide that a statement must be made with the purpose to threaten -- the Court simply held that it is not sufficient that the prosecution prove that a defendant negligently made a statement that would cause a reasonable person to regard the statement as threatening. A defendant may possibly violate 18 U.S.C. § 875(c) if he or she knowingly or recklessly makes a statement that another may feel threatened by. For instance the prosecution may succeed if it proves that a defendant made a statement that he or she knew would cause another to feel threatened, or that the statement would create a substantial risk that somebody else would feel threatened. The Court did not hold that the prosecution must prove that a statement is made with the purpose to threaten another. Readers in the legal community should have no trouble noting that "intent" does not necessarily mean "purpose." But I fear that the wider audience who reads broadly-worded commentary on the decision will be left with an impression that the Court's ruling is far wider than it actually was.

Ultimately, Elonis is a narrow decision, and I suspect that there is a great deal of litigation still to come that will attempt to answer the questions that Elonis leaves open. In the meantime, I hope that commentators and the general public will recognize Elonis for its narrowness rather than criticizing it or praising it for what it is not. Elonis is not a landmark victory for the First Amendment. Nor does it give people carte blanche to threaten others online. Elonis simply prohibits one way of interpreting 18 U.S.C. § 875(c) and leaves questions of free speech and required levels of intent for another day.