Christopher Slobogin

Therapeutic jurisprudence: Five dilemmas to ponder.

This article identifies and examines 5 conundrums confronting therapeutic jurisprudence. Is therapeutic jurisprudence distinguishable from other jurisprudences that share its goal of using the law to improve the well-being of others (the identity dilemma)? Can the term therapeutic be defined in a meaningful way (the definitional dilemma)? Will the vagaries of empirical research, on which therapeutic jurisprudence heavily relies, doom its proposals (the dilemma of empirical indeterminacy)? How will a therapeutic jurisprudence proposal that benefits only a subgroup of those it affects be implemented (the rule of law dilemma)? When and how should a therapeutic jurisprudence proposal be balanced against countervailing constitutional and social policies (the balancing dilemma)?

Informing juvenile justice policy: directions for behavioral science research.

Recent policy initiatives threaten to reduce the rehabilitative mission of the juvenile court or eliminate the court entirely. This article lays out a framework for an empirical assessment of these developments. It first evaluates the available and potential empirical support for three hypotheses about juveniles that might justify maintaining a separate, rehabilitation-oriented juvenile justice system: the hypotheses that, compared to adults, juveniles are more treatable, less culpable, and less deterrable. On the assumption that the continued existence of a rehabilitation-oriented juvenile court can be justified, it then provides suggestions as to how existing intervention strategies for juveniles could benefit from research attention to several substantive and methodological issues. These include refining outcome criteria and sampling strategies, matching offender and program characteristics, reexamining intervention efficacy, and focusing on decision makers and resource allocations.

Rethinking deprivations of liberty: possible contributions from therapeutic and ecological jurisprudence.

In place of the police and parens patriae powers, this article proposes three distinct justifactory models for government-sponsored deprivations of liberty. The punishment model authorizes deprivation of liberty as a sanction for blameworthy behavior. The prevention model authorizes deprivation of liberty to prevent harm, either through deterrence or restraint. The protection model authorizes liberty deprivation to ensure autonomous decisionmaking. The article compares these models to the purposes traditionally advanced as justification for punishment, and explores their strengths and weaknesses. Using therapeutic jurisprudence and ecological jurisprudence as organizing frameworks, it then describes a range of empirical issues raised by each of the models.

Insanity, justification, and culpability toward a unifying schema

Insanity has long been viewed as an “excuse” rather than a “justification”: Insane people are acquitted not because they did nothing wrong, but because they are considered morally blameless for their wrongful conduct. A new substantive test based on justificatory rather than exculpatory principles—a “quasisubjective justification” (QSJ) test—is compared to Finkels “relative culpability” test, and to two “excuse” oriented tests, ALI and IDRA, across seven cases. QSJ and Finkels test both produced significant verdict differences, whereas ALI and IDRA verdicts were not significantly different. The QSJ effect, however, was observed only in cases judged low in justification, and thus did not play a determinative role across cases; other variables, such as perceived severity of the disorder and culpability for bringing about the disorder, to which only Finkels test was sensitive, seem to have more explanatory power.

Dangerousness and Expertise

THEORY .......................................... 109 A. The Accuracy of Dangerousness Predictions ...... 110 1. Clinical Prediction ....................... 110 2. Actuarial Prediction ...................... 117 B. A Comparison of the Clinical and Actuarial Prediction Processes ............................... 119 C. Summary .................................. 126 II. AN EVIDENTIARY ANALYSIS OF DANGEROUSNESS PRE-

Rating the Intrusiveness of Law Enforcement Searches and Seizures

This article presents the results of a survey that asked 217 subjects to rate the “intrusiveness” of 50 different types of law enforcement investigative techniques, taken primarily from U.S. Supreme Court cases. Respondents disagreed strongly with many of the assumptions the Court makes about privacy and autonomy. Additionally, three theories are developed to help explain perceptions of intrusiveness.

Prevention of sexual violence by those who have been sexually violent.

This article argues that indeterminate sentencing is the optimal means of preventing recidivism among sex offenders, both as an instrumental matter and jurisprudentially. Once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. This position is defended against a number of objections, including claims that such a system relies on flawed risk assessments, ignores societal views of justice, denigrates offenders and victims, undermines deterrence and norm enforcement, depends too heavily on costly, uneven and demoralizing risk management schemes, and, as a result of one or more of these objections, is unconstitutional.

Capital Punishment and Dangerousness

This chapter applies principles I have developed elsewhere regarding the states ability to intervene on the basis of dangerousness to the ultimate form of prevention detention, capital punishment. More specifically, it addresses the following issues: (1) whether dangerousness may be considered an aggravating factor that justifies imposition of a death sentence on a person convicted of capital murder; and, if so, (2) how dangerousness should be defined in that context; and (3) how to resolve the two-edged sword problem (which arises when ostensibly mitigating mental disability is also the cause of an individuals dangerousness). My conclusions on these issues can be sketched out as follows. In theory, dangerousness is a legitimate aggravating factor in capital cases. In practice, however, it should virtually never form the basis for a death sentence, for two reasons: the government will seldom be able to demonstrate the level of risk it must demonstrate to justify the ultimate penalty nor will it usually be able to show that execution is the least restrictive means of achieving harm prevention in an individual case. Furthermore, on those rare occasions when the government is able to meet both of these stipulations, a death sentence might still be barred if serious mental illness contributed to the capital offense. While mental disability can cut both ways - supporting both an argument for reduced culpability and an argument for increased dangerousness - when it significantly impairs the individuals conduct at the time of the offense, retributive and deterrence considerations bar imposition of the death penalty, regardless of how dangerous the individual might be.

Neuroscience nuance: dissecting the relevance of neuroscience in adjudicating criminal culpability

Most scholars who have written about the role of neuroscience in determining criminal liability and punishment take a stance somewhere between those who assert that neuroscience has virtually nothing to say about such determinations and those that claim it will upend the assumption that most choices to commit crime are blameworthy. At the same time, those who take this intermediate position have seldom clarified how they think neuroscience can help. This article tries to answer that question more precisely than most works in this vein. It identifies five types of neuroscience evidence that might be presented by the defense and discusses when that evidence is material under accepted legal doctrine. It concludes that, even on the assumption that the data presented are accurate, much commonly proffered neuroscientific evidence is immaterial or only weakly material, not only at trial but also at sentencing. At the same time, it recognizes that certain types of neuroscience evidence can be very useful in criminal adjudication, especially at sentencing.

Making the Most of United States v. Jones in a Surveillance Society: A Statutory Implementation of Mosaic Theory

The current debate over immigration federalism overlooks the significance of the Civil Rights Act of 1870 as a limit on state and local immigration legislation. The 1870 Act, passed by the Reconstruction Congress, includes prohibitions on “alienage” discrimination in “every State and Territory” that remain embedded in federal law. This Article seeks to revive the Act’s importance to contemporary Supremacy Clause analysis by recounting the history of the 1870 legislation and reviewing the Supreme Court’s invocation of the Civil Rights Act across many decades to preempt sub-federal immigration laws. Revitalizing the federal alienage protections of the 1870 Act has significant consequences for immigration federalism today. The Article argues that the civil rights “immigrant equality” mandate requires courts to consider the discriminatory consequences of sub-federal laws as a facet of federal supremacy. The equality norm of the Civil Rights Act draws an important distinction between immigrant-hostile state laws that engender discrimination and immigrant-friendly (so-called “sanctuary”) laws that seek to further immigrant protection. The Act erects a federal barrier to local measures that target immigrants for enforcement and provides leeway for local initiatives that diminish the salience of immigration status in state and local matters.