Choices and Roles<\/p>\n
The Importance of Laws<\/p>\n
Laws as Human Creations<\/p>\n
Laws Help Resolve Conflict and<\/p>\n
Protect the Public<\/p>\n
The Changing of Laws<\/p>\n
The Psychological Study of Law<\/p>\n
Basic Choices in the Psychological<\/p>\n
Study of the Law<\/p>\n
The First Choice: Rights of<\/p>\n
Individuals versus the Common<\/p>\n
Good<\/p>\n
BOX 1.1: THE CASE OF THE WESTBORO<\/p>\n
BAPTIST CHURCH: DO INDIVIDUALS HAVE<\/p>\n
THE RIGHT TO USE OFFENSIVE SPEECH?<\/p>\n
The Second Choice: Equality<\/p>\n
versus Discretion<\/p>\n
BOX 1.2: THE CASE OF EVAN MILLER:<\/p>\n
LIFE SENTENCES FOR JUVENILE OFFENDERS<\/p>\n
ARE EXCESSIVE PUNISHMENT<\/p>\n
BOX 1.3: THE CASE OF TROY DAVIS AND<\/p>\n
A PAROLE BOARD\u2019S DISCRETION The Third Choice: To Discover the<\/p>\n
Truth or to Resolve Conflicts<\/p>\n
The Fourth Choice: Science<\/p>\n
versus the Law as a Source<\/p>\n
of Decisions<\/p>\n
Psychologists\u2019 Roles in the Law<\/p>\n
The Psychologist as a Basic<\/p>\n
Scientist of the Law<\/p>\n
BOX 1.4: THE CASE OF TATIANA<\/p>\n
TARASOFF: THE DUTY TO PROTECT<\/p>\n
The Psychologist as an Applied<\/p>\n
Scientist in the Law<\/p>\n
The Psychologist as a Policy<\/p>\n
Evaluator in the Law<\/p>\n
The Psychologist as a Forensic<\/p>\n
Evaluator in Litigation<\/p>\n
The Psychologist as a Consultant<\/p>\n
in Litigation<\/p>\n
Summary<\/p>\n
Key Terms<\/p>\n
IONS<\/p>\n
1. Why do we have laws, and what is the psychological approach to studying law?<\/p>\n
2. What choices are reflected in the psychological approach to the law?<\/p>\n
3. How do laws reflect the contrast between due process and crime control in the<\/p>\n
criminal justice system?<\/p>\n
4. What are five roles that psychologists may play in the legal system, and what<\/p>\n
does each entail?<\/p>\n
Consider the following stories, all of which were<\/p>\n
prominently featured in the news:<\/p>\n
\u25a0 Wearing body armor, a gas mask, and a tactical<\/p>\n
helmet, and dressed entirely in black, gunman<\/p>\n
James Holmes opened fire in a movie theater<\/p>\n
near Denver during the premiere of the Batman<\/p>\n
movie, The Dark Knight Rises. In one of the<\/p>\n
deadliest shooting rampages in American history,<\/p>\n
Holmes killed 12 and wounded nearly 60 others.<\/p>\n
What impelled a quiet, reclusive Ph.D. student,<\/p>\n
who graduated with honors in neuroscience from<\/p>\n
the University of California, to kill with such wild<\/p>\n
abandon? One possibility is that Holmes was<\/p>\n
distraught over events in his life, prompting his<\/p>\n
withdrawal from graduate school. Another is that<\/p>\n
Holmes harbored psychopathic traits that went<\/p>\n
undetected by those around him.<\/p>\n
\u25a0 A controversial Arizona law requires law<\/p>\n
enforcement officers to determine the immigra-<\/p>\n
tion status of any person they detain or arrest if<\/p>\n
they believe that person is in the country illegally.<\/p>\n
Psychological research suggests that the law may<\/p>\n
render residents less likely to report crimes and<\/p>\n
may subject Hispanic and Hispanic-looking<\/p>\n
citizens to extra police attention, influencing their<\/p>\n
perceptions of justice and fairness.<\/p>\n
\u25a0 A drunken driver who killed a 10-year-old boy in<\/p>\n
suburban Dallas was sentenced to spend 180 days<\/p>\n
in jail over the next 10 years, including every<\/p>\n
Christmas Day, New Year\u2019s Day, and June 8,<\/p>\n
the child\u2019s birthday. The judge said he wanted<\/p>\n
to remind the defendant of the family\u2019s loss on<\/p>\n
these important family holidays.<\/p>\n
\u25a0 In late 2011, Representative Marsha Blackburn<\/p>\n
introduced a bill in Congress dubbed the STRIP<\/p>\n
act (Stop TSA\u2019s Reach In Policy) which would<\/p>\n
prohibit Transportation Security Administration<\/p>\n
employees from using the title \u201cofficer\u201d and wearing uniforms and badges that resemble<\/p>\n
those worn by law enforcement personnel.<\/p>\n
TSA officials claim that uniforms and badges<\/p>\n
represent \u201cthe professionalism of our employees<\/p>\n
and the seriousness of our work,\u201d while<\/p>\n
consumer advocacy groups claim that TSA<\/p>\n
workers intimidate passengers by presenting<\/p>\n
an image of themselves that is untrue. Both<\/p>\n
assertions involve public perceptions and beliefs\u2014<\/p>\n
issues that can be examined via psychological<\/p>\n
research.<\/p>\n
These stories illustrate a few of the psycholegal<\/p>\n
topics that we consider in this book: the motivations<\/p>\n
of offenders, police\u2013community relations and discrimi-<\/p>\n
nation, discretion in judges\u2019 sentencing decisions, and<\/p>\n
public perceptions of security and law enforcement<\/p>\n
officials. They show the real flesh and blood of some<\/p>\n
of the psychological issues that arise in the law.<\/p>\n
T H E I M P O R T A N C E O F L A W S<\/p>\n
These examples also illustrate the pervasiveness of the<\/p>\n
law in our society. But how does the law work? This<\/p>\n
book will help you understand how the legal system<\/p>\n
operates by applying psychological concepts, theories,<\/p>\n
findings, and methods to its study.<\/p>\n
Laws as Human Creations<\/p>\n
Laws are everywhere. They affect everything from<\/p>\n
birth to death. Laws regulate our private lives and<\/p>\n
our public actions. Laws dictate how long we must<\/p>\n
stay in school, how fast we can drive, when (and, to<\/p>\n
some extent, whom) we can marry, and whether we<\/p>\n
are allowed to play our car stereos at full blast or let<\/p>\n
our boisterous dog romp through the neighbors\u2019 yards<\/p>\n
and gardens. Given that the body of laws has widespread impact<\/p>\n
we might expect that the law is<\/p>\n
a part of nature, that it was originally discovered by a<\/p>\n
set of archaeologists or explorers. Perhaps we think of<\/p>\n
Moses carrying the Ten Commandments down from<\/p>\n
the mountain.<\/p>\n
But our laws are not chiseled in stone. Rather,<\/p>\n
laws are human creations that evolve out of the needs<\/p>\n
for order and consistency. To be responsive to a con-<\/p>\n
stantly changing society, our laws must also change.<\/p>\n
As some become outdated, others take their place.<\/p>\n
For example, before there were shootings on school<\/p>\n
grounds, no laws forbade the presence of weapons in<\/p>\n
schools. But after a series of deadly incidents, laws that<\/p>\n
banned weapons from school property proliferated.<\/p>\n
On occasion, the reach of these zero-tolerance policies<\/p>\n
has been excessive, as Zachary Christie, a Delaware<\/p>\n
first-grader, learned. Zachary was suspended and<\/p>\n
ordered to enroll in an alternative program for troubled<\/p>\n
youths because he took to school a Cub Scout utensil<\/p>\n
that included a small folding knife. When this sort of<\/p>\n
overreaching occurs, the public reacts, and the policies<\/p>\n
are revised again.<\/p>\n
Laws Help Resolve Conflict<\/p>\n
and Protect the Public<\/p>\n
Many standards of acceptable behavior\u2014not purposely<\/p>\n
touching strangers on elevators, for example\u2014seem<\/p>\n
universally supported. But in some situations, people<\/p>\n
have differences of opinion about what is considered<\/p>\n
appropriate and disagreements result. When this occurs,<\/p>\n
society must have mechanisms to resolve the disagree-<\/p>\n
ments. Thus, societies develop laws and regulations to<\/p>\n
function as conflict resolution mechanisms. Customs<\/p>\n
and rules of conduct evolve partly to deal with the<\/p>\n
conflict between one person\u2019s impulses and desires and<\/p>\n
other people\u2019s rights. Similarly, laws are developed to<\/p>\n
manage and resolve those conflicts that cannot be<\/p>\n
prevented.<\/p>\n
Public safety is always an important consideration<\/p>\n
in a civilized society. In earlier times, before laws were<\/p>\n
established to deter and punish unacceptable behavior,<\/p>\n
people \u201ctook the law into their own hands,\u201d acting<\/p>\n
as vigilantes to secure the peace and impose punish-<\/p>\n
ment on offenders. Now, in the United States and<\/p>\n
most other nations, all governmental entities\u2014federal,<\/p>\n
state, county, borough, and municipal, and even<\/p>\n
some neighborhoods\u2014have enacted laws to protect<\/p>\n
the public. The Changing of Laws<\/p>\n
The raw material for the construction and the revision<\/p>\n
of laws is human experience. As our experiences<\/p>\n
and opportunities change, laws must be developed,<\/p>\n
interpreted, reinterpreted, and modified to keep<\/p>\n
up with these rapid changes in our lives. As George<\/p>\n
Will (1984) put it, \u201cFitting the law to a tech-<\/p>\n
nologically dynamic society often is like fitting<\/p>\n
trousers to a 10-year-old: Adjustments are constantly<\/p>\n
needed\u201d (p. 6).<\/p>\n
The framers of the U.S. Constitution, and even<\/p>\n
legislators of 30 years ago, could never have antici-<\/p>\n
pated the ways that laws have changed and will<\/p>\n
continue to change. They probably never contem-<\/p>\n
plated the possibility that advances in neuroscience,<\/p>\n
for example, would affect how police investigate<\/p>\n
cases, attorneys represent their clients, and juries and<\/p>\n
judges make decisions. But brain-imaging technology<\/p>\n
is now used to detect brain injuries and assess pain in<\/p>\n
accident sufferers, determine mental state and capacity<\/p>\n
for rational thought in offenders, and detect lies and<\/p>\n
deception in suspects under interrogation. Although<\/p>\n
the correspondence between brain activity and<\/p>\n
behavior is far from clear at this point, neuroimaging<\/p>\n
will undoubtedly raise thorny questions for the legal<\/p>\n
system. New rules, policies, and laws will have to be<\/p>\n
created to address them.<\/p>\n
Similarly, no one could have anticipated the ways<\/p>\n
that DNA testing would change laws involving crim-<\/p>\n
inal investigations. Legislatures have passed statutes<\/p>\n
that mandate the collection of DNA samples from<\/p>\n
millions of Americans, including those who have sim-<\/p>\n
ply been arrested and are awaiting trial. Some of these<\/p>\n
individuals have objected to having their DNA col-<\/p>\n
lected and catalogued. But law enforcement officials<\/p>\n
claim that widespread testing will help them solve<\/p>\n
more crimes and exonerate people who were<\/p>\n
wrongly convicted. (We describe the role of DNA<\/p>\n
analysis in the exoneration of convicted criminals in<\/p>\n
Chapter 5.)<\/p>\n
Legislators must now consider what, if any,<\/p>\n
restrictions should be placed on online activities.<\/p>\n
(Cyberlaw, virtually unheard of 25 years ago, has<\/p>\n
become an important subfield of the law.) For exam-<\/p>\n
ple, individuals have been convicted of sexually abus-<\/p>\n
ing minors after they \u201csexted\u201d nude and seminude<\/p>\n
pictures on their cellphones, and drivers have been<\/p>\n
ticketed for sneaking a peek at their smartphones<\/p>\n
when stopped at red lights, thereby violating the state\u2019s<\/p>\n
requirements. Should laws<\/p>\n
regulate these activities? Many people believe that<\/p>\n
these laws protect the dignity and safety of the public,<\/p>\n
yet others claim that they interfere with constitution-<\/p>\n
ally protected speech and privacy rights. But most<\/p>\n
people would agree that vast changes in society have<\/p>\n
necessitated far-reaching adjustments in the law.<\/p>\n
The technological development of the auto-<\/p>\n
mobile produced several new potential adversarial<\/p>\n
relationships, including pedestrians versus drivers, and<\/p>\n
hence new laws. Car accidents\u2014even minor ones\u2014<\/p>\n
cause conflicts over basic rights. Consider a driver<\/p>\n
whose car strikes and injures a pedestrian. Does this<\/p>\n
driver have a legal responsibility to report the incident<\/p>\n
to the police? Yes. But doesn\u2019t this requirement violate<\/p>\n
the Fifth Amendment to the U.S. Constitution, which<\/p>\n
safeguards each of us against self-incrimination, against<\/p>\n
being a witness in conflict with our own best interests?<\/p>\n
Shortly after automobiles became popular in the<\/p>\n
first two decades of the 20th century, a man named<\/p>\n
Edward Rosenheimer was charged with violating the<\/p>\n
newly necessary reporting laws. He did not contest<\/p>\n
the charge that he had caused an accident that injured<\/p>\n
another person, but he claimed that the law requiring<\/p>\n
him to report it to the police was unconstitutional<\/p>\n
because it forced him to incriminate himself. There-<\/p>\n
fore, he argued, this particular law should be removed<\/p>\n
from the books, and he should not be jailed on the<\/p>\n
charge of leaving the scene of an accident. Surprisingly,<\/p>\n
a New York judge agreed with him and released him<\/p>\n
from custody.<\/p>\n
But authorities in New York were unhappy with<\/p>\n
a decision that permitted a person who had caused an<\/p>\n
injury to avoid being apprehended, so they appealed<\/p>\n
the decision to a higher court, the New York Court<\/p>\n
of Appeals. This court, recognizing that the Constitu-<\/p>\n
tion and the recent law clashed with each other, ruled<\/p>\n
in favor of the state and overturned the previous<\/p>\n
decision. This appeals court concluded that rights<\/p>\n
to \u201cconstitutional privilege\u201d\u2014that is, to avoid self-<\/p>\n
incrimination\u2014must give way to the competing<\/p>\n
principle of the right of injured persons to seek redress<\/p>\n
for their sufferings (Post, 1963).<\/p>\n
These examples illustrate that the law is an evolving<\/p>\n
human creation, designed to arbitrate between values<\/p>\n
in opposition to each other. Before the advent of auto-<\/p>\n
mobiles, hit-and-run accidents seldom occurred. Before<\/p>\n
the invention of smartphones, texting at stoplights<\/p>\n
(or worse, while driving) never occurred. However,<\/p>\n
once cars and smartphones became a part of society, new laws were enacted to regulate their use, and courts<\/p>\n
have determined that most of these new laws are<\/p>\n
constitutional.<\/p>\n
T H E P S Y C H O L O G I C A L S T U D Y<\/p>\n
O F L A W<\/p>\n
Laws and legal systems are studied by several tradi-<\/p>\n
tional disciplines other than psychology. For example,<\/p>\n
anthropologists compare laws (and mechanisms for<\/p>\n
instituting and altering laws) in different societies<\/p>\n
and relate them to other characteristics of these socie-<\/p>\n
ties. They may be interested in how frequently<\/p>\n
women are raped in different types of societies and<\/p>\n
in the relationship between rape and other factors,<\/p>\n
such as the extent of separation of the sexes during<\/p>\n
childhood or the degree to which males dominate<\/p>\n
females.<\/p>\n
Sociologists, in contrast, usually study a specific<\/p>\n
society and examine its institutions (e.g., the family,<\/p>\n
the church, or the subculture) to determine their role<\/p>\n
in developing adherence to the law. The sociologist<\/p>\n
might study the role that social class plays in criminal<\/p>\n
behavior. This approach tries to predict and explain<\/p>\n
social behavior by focusing on groups of people rather<\/p>\n
than on individuals.<\/p>\n
A psychological approach to the law emphasizes<\/p>\n
its human determinants. The focus in the psychologi-<\/p>\n
cal approach is on the individual as the unit of analysis.<\/p>\n
Individuals are seen as responsible for their own con-<\/p>\n
duct and as contributing to its causation. Psychology<\/p>\n
examines the thoughts and actions of individuals\u2014<\/p>\n
drug abusers, petty thieves, police officers, victims,<\/p>\n
jurors, expert witnesses, corporate lawyers, judges,<\/p>\n
defendants, prison guards, and parole officers, for<\/p>\n
example\u2014involved in the legal system. Psychology<\/p>\n
assumes that characteristics of these participants affect<\/p>\n
how the system operates, and it also recognizes that<\/p>\n
the law, in turn, can affect individuals\u2019 characteristics<\/p>\n
and behavior (Ogloff & Finkelman, 1999). By charac-<\/p>\n
teristics, we mean these persons\u2019 abilities, perspectives,<\/p>\n
values, and experiences\u2014all the factors that influence<\/p>\n
their behavior. These characteristics determine<\/p>\n
whether a defendant and his or her attorney will<\/p>\n
accept a plea bargain or go to trial. They determine<\/p>\n
whether a Hispanic juror will be more sympathetic<\/p>\n
toward a Hispanic defendant than toward a non-<\/p>\n
Hispanic defendant. They determine whether a<\/p>\n
juvenile offender will fare better in a residential treat-<\/p>\n
ment facility or a correctional institution.<\/p>\n
But the behavior of participants in the legal<\/p>\n
system is not just a result of their personal qualities.<\/p>\n
The setting in which they operate matters as well.<\/p>\n
Kurt Lewin, a founder of social psychology, proposed<\/p>\n
the equation B = f(p, e): behavior is a function of the<\/p>\n
person and the environment. Qualities of the external<\/p>\n
environment and pressures from the situation affect an<\/p>\n
individual\u2019s behavior. A prosecuting attorney may<\/p>\n
recommend a harsher sentence for a convicted felon<\/p>\n
if the case has been highly publicized, the community<\/p>\n
is outraged over the crime, and the prosecutor hap-<\/p>\n
pens to be waging a reelection campaign. A juror<\/p>\n
holding out for a guilty verdict may yield if all the<\/p>\n
other jurors passionately proclaim the defendant\u2019s<\/p>\n
innocence. A juvenile offender may desist from crim-<\/p>\n
inal behavior if his gang affiliations are severed. The<\/p>\n
social environment affects legally relevant choices and<\/p>\n
conduct.<\/p>\n
This book concentrates on the behavior of<\/p>\n
participants in the legal system. As the examples at<\/p>\n
the beginning of this chapter indicate, we are all<\/p>\n
active participants in the system, even if we do not<\/p>\n
work in occupations directly tied to the administra-<\/p>\n
tion of justice. We all face daily choices that are<\/p>\n
affected by the law\u2014whether to speed through a<\/p>\n
school zone because we are late to class, whether to<\/p>\n
report the person who removes someone else\u2019s laptop<\/p>\n
from a table at the library, whether to vote in favor<\/p>\n
of or against a proposal to end capital punishment.<\/p>\n
Hence, this book will also devote some attention to<\/p>\n
the determinants of our conceptions of justice and the<\/p>\n
moral dilemmas we all face.<\/p>\n
But this book will pay particular attention to the<\/p>\n
role of psychology in the criminal and civil justice<\/p>\n
systems and to the central participants in those<\/p>\n
settings: defendants and witnesses, civil and criminal<\/p>\n
lawyers, judges and juries, convicts and parole boards.<\/p>\n
It will also focus on the activities of forensic<\/p>\n
psychologists, professionals who generate and<\/p>\n
communicate information to answer specific legal<\/p>\n
questions or to help resolve legal disputes (Heilbrun,<\/p>\n
Grisso, & Goldstein, 2009; Melton, Petrila, Poythress, &<\/p>\n
Slobogin, 2007). Most forensic psychologists are trained<\/p>\n
as clinical psychologists, whose specialty involves the<\/p>\n
psychological evaluation and treatment of others.<\/p>\n
Forensic psychologists are often asked to evaluate a<\/p>\n
person and then prepare a report for a court, and<\/p>\n
sometimes provide expert testimony in a hearing or trial. For example, they may evaluate adult crimi-<\/p>\n
nal defendants or children involved with the juvenile<\/p>\n
justice system and offer the court information rele-<\/p>\n
vant to determining whether the defendant has a<\/p>\n
mental disorder that prevents him from going to<\/p>\n
trial, what the defendant\u2019s mental state was at the<\/p>\n
time of the offense, or what treatment might be<\/p>\n
appropriate for a particular defendant. But psychol-<\/p>\n
ogists can play many other roles in the legal system,<\/p>\n
as well. We describe these roles later in the chapter.<\/p>\n
B A S I C C H O I C E S I N T H E<\/p>\n
P S Y C H O L O G I C A L S T U D Y<\/p>\n
O F T H E L A W<\/p>\n
Just as each of us has to make decisions about personal<\/p>\n
values, society must decide which values it wants its<\/p>\n
laws to reflect. Choices lead to conflict, and often the<\/p>\n
resulting dilemmas are difficult to resolve. Should the<\/p>\n
laws uphold the rights of specific individuals or<\/p>\n
protect society in general? Should each of us be able<\/p>\n
to impose our preferences on others, or must we be<\/p>\n
attentive to other people\u2019s needs? You may have pon-<\/p>\n
dered this question while stopped at a traffic light next<\/p>\n
to a car with a deafening subwoofer. One of Madon-<\/p>\n
na\u2019s neighbors in a posh New York City apartment<\/p>\n
building certainly pondered this question. She filed a<\/p>\n
lawsuit against the pop icon, claiming that her music<\/p>\n
was so loud that the neighbor had to leave several<\/p>\n
times a day. Whose rights prevail? A commonly<\/p>\n
asked question that taps that dilemma is whether it<\/p>\n
is better for ten murderers to go free than for one<\/p>\n
innocent person to be sentenced to death. The law<\/p>\n
struggles with the fact that rights desirable for some<\/p>\n
individuals may be problematic for others.<\/p>\n
This tension between individual rights and the<\/p>\n
common good is one example of the basic choices<\/p>\n
that pervade the psychological study of the law. But<\/p>\n
there are others. In this chapter, we highlight four<\/p>\n
basic choices inherent in laws and that apply to each<\/p>\n
of us in the United States, Canada, and many other<\/p>\n
countries. Each choice creates a dilemma and has<\/p>\n
psychological implications. No decision about these<\/p>\n
choices will be completely satisfactory because no<\/p>\n
decision can simultaneously attain two incompatible<\/p>\n
goals\u2014such as individual rights and societal rights\u2014<\/p>\n
both of which we value. These four choices (and the<\/p>\n
tension inherent in their competing values) are so basic<\/p>\n
that they surface repeatedly throughout this book.<\/p>\n
Consider another choice, that between individual<\/p>\n
freedom (or discretion) and equality for all. Our soci-<\/p>\n
ety champions both freedom and equality, but it is<\/p>\n
hard to achieve these aspirations at the same time.<\/p>\n
Ponder the small-town civic organization that has<\/p>\n
always had a \u201cmales-only\u201d policy at its Friday night<\/p>\n
dinners and is also a vehicle by which prominent<\/p>\n
citizens transact their business. The men enjoy the<\/p>\n
\u201cfreedom\u201d to act like \u201cgood ole boys\u201d in the company<\/p>\n
of their own gender. But what if a woman starts a new<\/p>\n
insurance agency in town? Doesn\u2019t she have the right<\/p>\n
to \u201cequality\u201d\u2014to full and equal participation in the<\/p>\n
civic organization that is influential in the success of<\/p>\n
any business in this community? It is hard to see how<\/p>\n
a resolution of this conflict could fully meet both of<\/p>\n
these goals (freedom of existing members and equality<\/p>\n
among all comers). The balance in such cases often<\/p>\n
shifts from one value to another, emphasizing the<\/p>\n
attainment of first one and then the other goal.<\/p>\n
The First Choice: Rights of Individuals<\/p>\n
versus the Common Good<\/p>\n
Consider the following:<\/p>\n
\u25a0 Smokers have long been restricted to smoky<\/p>\n
airport lounges and back sections of restaurants,<\/p>\n
and often huddle together outside of workplace<\/p>\n
doors. But now smokers are banned from light-<\/p>\n
ing up in some public parks and beaches, and<\/p>\n
along shorelines and trails. When New York City<\/p>\n
enacted a ban on smoking in its 1,700 public<\/p>\n
parks in 2011, Lauren Johnston was ecstatic. She<\/p>\n
blogged about smokers polluting the air along<\/p>\n
her running loop. But Bill Saar saw it differently:<\/p>\n
\u201cIt\u2019s the most idiotic law they ever made. I\u2019ve<\/p>\n
been a smoker for over 20 years. I\u2019m not going<\/p>\n
to stop,\u201d said Saar as he puffed on a cigar while<\/p>\n
selling figurines in Union Square (Durkin, 2011).<\/p>\n
Should cities be able to limit smoking in parks<\/p>\n
shared by all? Whose rights prevail?<\/p>\n
\u25a0 In 2012, six states\u2014Massachusetts, Connecticut,<\/p>\n
Vermont, New Hampshire, New York and<\/p>\n
Iowa\u2014as well as the District of Columbia<\/p>\n
allowed same-sex marriage, and legislatures in<\/p>\n
Washington State and Maryland passed laws,<\/p>\n
subject to voter approval, granting same-sex<\/p>\n
couples the right to marry. Yet laws and initiatives passed in several other states barred<\/p>\n
same-sex couples from marrying. Americans are<\/p>\n
clearly divided on this issue: According to a 2011<\/p>\n
Gallup poll, 53% of Americans favor same-sex<\/p>\n
marriage, with young people being considerably<\/p>\n
more supportive than older people. This issue<\/p>\n
raises complex questions about individual rights<\/p>\n
to marry whom one wishes versus traditional<\/p>\n
definitions of the family.<\/p>\n
\u25a0 In a less serious sort of dispute, a growing number<\/p>\n
of cities have made it a crime to wear \u201csagging<\/p>\n
pants,\u201d and some cases have actually gone to trial.<\/p>\n
Three defendants were charged with violating<\/p>\n
the \u201cdecency ordinance\u201d in Riviera Beach,<\/p>\n
Florida. Their public defenders argued that the<\/p>\n
law violated principles of freedom of expression.<\/p>\n
But the town\u2019s mayor, Thomas Masters, said that<\/p>\n
voters \u201cjust got tired of having to look at people\u2019s<\/p>\n
behinds or their undergarments \u2026 I think society<\/p>\n
has the right to draw the line\u201d (Newton, 2009<\/p>\n
alues in Conflict. The preceding vignettes share<\/p>\n
a common theme. On the one hand, individuals possess<\/p>\n
rights, and one function of the law is to ensure that these<\/p>\n
rights are protected. The United States is perhaps the<\/p>\n
most individualistic society in the world. People can<\/p>\n
deviate from the norm, or \u201cdo their own thing,\u201d to<\/p>\n
a greater degree in the United States than virtually<\/p>\n
anywhere else. Freedom and personal autonomy are<\/p>\n
two of our most deeply desired values; \u201cthe right to<\/p>\n
liberty\u201d is a key phrase in the U.S. Constitution.<\/p>\n
On the other hand, our society also has expecta-<\/p>\n
tions. People need to feel secure. They need to<\/p>\n
believe that potential lawbreakers are discouraged<\/p>\n
from breaking laws because they know they will be<\/p>\n
punished. All of us have rights to a peaceful, safe<\/p>\n
existence. Likewise, society claims a vested interest<\/p>\n
in restricting those who take risks that may injure<\/p>\n
themselves or others, because these actions can create<\/p>\n
burdens on individuals and on society. The tension<\/p>\n
between individual rights and the collective good is<\/p>\n
illustrated in the case we describe in Box 1.1.<\/p>\n
It is clear that two sets of rights and two goals for<\/p>\n
the law are often in conflict. The tension between the<\/p>\n
rights of the individual and the constraints that may<\/p>\n
be placed on the individual for the collective good is<\/p>\n
always present. It has factored prominently into vari-<\/p>\n
ous U.S. Supreme Court decisions since the 1960s<\/p>\n
with respect to the rights of criminal suspects and<\/p>\n
defendants versus the rights of crime victims and the<\/p>\n
power of the police.<\/p>\n
In the 1960s, the Supreme Court established<\/p>\n
a number of principles that provided or expanded explicit rights for those suspected of breaking the law. The Miranda rule, guaranteeing the right to<\/p>\n
remain silent (detailed in Chapter 7), was established<\/p>\n
in 1966. About the same time, the courts required<\/p>\n
that criminal defendants, in all cases in which incar-<\/p>\n
ceration was possible, have the right to an attorney,<\/p>\n
even if they cannot afford to pay for one. These and<\/p>\n
other rights were established in an effort to redress a<\/p>\n
perceived imbalance between a lowly defendant and<\/p>\n
a powerful government.<\/p>\n
But many of these rights were trimmed in subse-<\/p>\n
quent years, when courts frequently ruled in favor<\/p>\n
of the police. For example, in 1996, the Supreme<\/p>\n
Court ruled that the police can properly stop a motorist<\/p>\n
whom they believe has violated traffic laws even if their<\/p>\n
ulterior motive is to investigate the possibility of illegal<\/p>\n
drug dealing (Whren v. United States, 1996). In 2012, the<\/p>\n
Court ruled that jail officials can strip search petty offen-<\/p>\n
ders even if there is no suspicion they are concealing<\/p>\n
weapons or contraband (Florence v. Board of Chosen<\/p>\n
Freeholders, 2012).<\/p>\n
Two Models of the Criminal Justice System.<\/p>\n
The conflict between the rights of individuals and<\/p>\n
the rights of society is related to a distinction between<\/p>\n
two models of the criminal justice system. This distinc-<\/p>\n
tion is between the due process model and the crime<\/p>\n
control model (Packer, 1964). The values underlying<\/p>\n
each of these models are legitimate, and the goal of<\/p>\n
our society is to achieve a balance between them.<\/p>\n
But because different priorities are important to each<\/p>\n
model, there is constant tension between them.<\/p>\n
B o x 1.1 THE CASE OF THE WESTBORO BAPTIST CHURCH: DO INDIVIDUALS HAVE<\/p>\n
THE RIGHT TO USE OFFENSIVE SPEECH?<\/p>\n
In March 2006, Lance Corporal Matthew Snyder, age 20,<\/p>\n
was killed in Iraq. His funeral was held at a Roman<\/p>\n
Catholic church in Westminster, Maryland. Protesting out-<\/p>\n
side of the church were seven members of the Westboro<\/p>\n
Baptist Church, a fringe group based in Topeka, Kansas<\/p>\n
that attends military funerals across the country to broad-<\/p>\n
cast their belief that God is punishing troops because<\/p>\n
America tolerates homosexuality. They carry signs that<\/p>\n
read, \u201cGod hates fags\u201d and \u201cThank God for dead<\/p>\n
soldiers.\u201d Snyder\u2019s father sued Westboro, alleging that<\/p>\n
picketers invaded his privacy and caused emotional distress<\/p>\n
that compounded his loss. He claimed that he wanted to<\/p>\n
protect other families from the pain inflicted on his family<\/p>\n
by members of the Westboro Baptist Church. But the U.S.<\/p>\n
Supreme Court ruled against Snyder (Snyder v. Phelps, 2011),<\/p>\n
upholding Westboro\u2019s right to<\/p>\n
freely express itself. In his majority opinion, Chief Justice<\/p>\n
John Roberts reasoned that the words on Westboro\u2019s<\/p>\n
signs were \u201cmatters of public import\u201d and thus were pro-<\/p>\n
tected by the First Amendment. He wrote that to ensure<\/p>\n
that public debate is not stifled, even hurtful and offensive<\/p>\n
speech must be protected. Snyder reacted with sadness, say-<\/p>\n
ing there is something very wrong with allowing these pro-<\/p>\n
testers to desecrate a Marine\u2019s funeral. Westboro vowed<\/p>\n
to quadruple its efforts at military funerals in the future.<\/p>\n
Critical Thought Question<\/p>\n
What two values were in conflict in this case?<\/p>\n
The due process model, favored in the 1960s,<\/p>\n
places primary value on the protection of citizens,<\/p>\n
including criminal suspects, from possible abuses by<\/p>\n
the police and the law enforcement system generally.<\/p>\n
It assumes the innocence of suspects and requires that<\/p>\n
they be treated fairly (receive \u201cdue process\u201d) by the<\/p>\n
criminal justice system. This model\u2019s proponents<\/p>\n
subscribe to the maxim that \u201cit is better that 10 guilty<\/p>\n
persons shall go free than that one innocent person<\/p>\n
should suffer.\u201d Thus the due process model emphasizes<\/p>\n
the rights of individuals, especially those suspected<\/p>\n
of crimes, over the temptation by society to assume<\/p>\n
suspects are guilty even before a trial.<\/p>\n
In contrast, the crime control model, favored<\/p>\n
in the 1990s, seeks the apprehension and punishment<\/p>\n
of lawbreakers. It emphasizes the efficient detection of<\/p>\n
suspects and the effective prosecution of defendants,<\/p>\n
to help ensure that criminal activity is being contained<\/p>\n
or reduced. The crime control model is exemplified<\/p>\n
by a statement by former U.S. Attorney General<\/p>\n
William P. Barr with respect to career criminals.<\/p>\n
He noted that the goal is \u201cincapacitation through<\/p>\n
incarceration\u201d (Barr, 1992)\u2014that is, removing such<\/p>\n
criminals permanently from circulation.<\/p>\n
When the crime control model is dominant in<\/p>\n
society, laws are passed that in other times would be<\/p>\n
seen as unacceptable violations of individual rights.<\/p>\n
The Arizona immigration law described at the begin-<\/p>\n
ning of the chapter and similar laws in other states are<\/p>\n
examples. They raise complicated questions about the<\/p>\n
rights of individuals to be free from police scrutiny<\/p>\n
and the obligation of the government to provide<\/p>\n
safety and security to its citizens.<\/p>\n
Despite the drop in crime rates in recent years,<\/p>\n
vestiges of the crime control model still linger in the<\/p>\n
United States, more so than in Canada, Europe, or<\/p>\n
Australia. As we point out in Chapter 14, the United<\/p>\n
States incarcerates a higher percentage of its citizens<\/p>\n
than any other country (currently 1 of every 32<\/p>\n
Americans are imprisoned or on probation or parole).<\/p>\n
According to the Center on Juvenile and Criminal<\/p>\n
Justice, the United States has only 5% of the world\u2019s<\/p>\n
population but nearly 25% of its prisoners.<\/p>\n
The global recession may slowly be changing soci-<\/p>\n
etal options for dealing with crime, however. As federal<\/p>\n
and state budgets tighten, legislators and law enforce-<\/p>\n
ment officials have begun to reevaluate many \u201ctough-<\/p>\n
on-crime\u201d policies. These strategies boosted spending<\/p>\n
on prisons but did little to prevent repeat offending by<\/p>\n
released inmates (Dvoskin, Skeem, Novaco, & Douglas,<\/p>\n
2011). Because of reduced resources, officials have become attentive to the need to find cheaper and<\/p>\n
more effective alternatives for controlling crime and<\/p>\n
ensuring public safety. Somenew programs have already<\/p>\n
been shown to reduce repeat offending. Crime rates in<\/p>\n
Texas dropped after it began investing in treatment pro-<\/p>\n
grams for parolees. The prison population in Mississippi<\/p>\n
was reduced by 22% after it allowed inmates to earn<\/p>\n
time off their sentences for participating in educational<\/p>\n
and reentry programs. Other proven alternatives include<\/p>\n
providing employment counseling and substance abuse<\/p>\n
and mental health treatment for inmates, and diverting<\/p>\n
offenders from the criminal justice system and into<\/p>\n
community-based treatment programs. We describe<\/p>\n
many of these alternatives in Chapter 9.<\/p>\n
The Second Choice: Equality<\/p>\n
versus Discretion<\/p>\n
Kenneth Peacock was a long-distance trucker who was<\/p>\n
caught in an ice storm and came home at the wrong<\/p>\n
time. He walked in the door to find his wife Sandra in<\/p>\n
bed with another man. Peacock chased the man away<\/p>\n
and some four hours later, in the heat of an argument,<\/p>\n
shot his wife in the head with a hunting rifle. Peacock<\/p>\n
pled guilty to voluntary manslaughter and was sentenced<\/p>\n
to 18 months in prison. At the sentencing, Baltimore<\/p>\n
County Circuit Court Judge Robert E. Cahill said<\/p>\n
he wished he did not have to send Peacock to prison<\/p>\n
at all but knew that he must to \u201ckeep the system honest\u201d<\/p>\n
(Lewin, 1994). He continued, \u201cI seriously wonder how<\/p>\n
many men \u2026 would have the strength to walk away<\/p>\n
without inflicting some corporal punishment.\u201d<\/p>\n
Move the clock ahead one day. A female defen-<\/p>\n
dant pleads guilty to voluntary manslaughter in a<\/p>\n
different Baltimore courtroom. She killed her husband<\/p>\n
after 11 years of abuse and was given a 3-year sentence,<\/p>\n
three times longer than that sought by prosecutors<\/p>\n
(Lewin, 1994). Some people find no inconsistency in<\/p>\n
the severity of these punishments, believing that each<\/p>\n
case should be judged on its own merits. However,<\/p>\n
psychology analyzes these decisions as examples of a<\/p>\n
choice between the goals of equality and discretion.<\/p>\n
What should be the underlying principle guiding<\/p>\n
the response to persons accused of violating the law?<\/p>\n
Again, we discover that two equally desirable values\u2014<\/p>\n
equality and discretion\u2014are often incompatible and<\/p>\n
hence create conflict. The principle of equality<\/p>\n
means that all people who commit the same crime or<\/p>\n
misdeed should receive the same consequences. But<\/p>\n
blind pursuit of equality can lead to unfairness in situations.<\/p>\n
which the particular characteristics of<\/p>\n
offender, victim, or offense matter. For example,<\/p>\n
most people would think differently about punishing<\/p>\n
someone who killed randomly, ruthlessly, and without<\/p>\n
remorse, and someone else who killed a loved one<\/p>\n
suffering from a painful and terminal illness. In this<\/p>\n
example, discretion is called for. Discretion in the<\/p>\n
legal system involves considering the circumstances<\/p>\n
of certain offenders and offenses to determine the<\/p>\n
appropriate consequences for wrongdoing. Psychology<\/p>\n
provides concepts through which this conflict can be<\/p>\n
studied and better understood.<\/p>\n
The Principle of Equality. Fundamental to our<\/p>\n
legal system is the assumption advanced by the foun-<\/p>\n
ders of the American republic that \u201call men are cre-<\/p>\n
ated equal.\u201d In fact, the Equal Protection Clause of the<\/p>\n
Fourteenth Amendment states that no state shall \u201cdeny<\/p>\n
to any person within its jurisdiction the equal protection<\/p>\n
of the laws.\u201d This statement is frequently interpreted to<\/p>\n
mean that all people should be treated equally and that<\/p>\n
no one should receive special treatment by the courts<\/p>\n
simply because he or she is rich, influential, or otherwise<\/p>\n
advantaged. We cherish the belief that in the United<\/p>\n
States, politically powerful or affluent people are<\/p>\n
brought before the courts and, if guilty, convicted and<\/p>\n
punished just like anyone else who commits similar<\/p>\n
offenses. Consider the example of disgraced financier<\/p>\n
Bernard Madoff. A former chairman of the NASDAQ<\/p>\n
Stock Exchange, Madoff pled guilty in 2009 to perpe-<\/p>\n
trating the largest investor fraud in history, and<\/p>\n
exchanged his three homes and a yacht on the French<\/p>\n
Riviera for a cell in the federal prison system. But this value of equality before the law is<\/p>\n
not always implemented. In the last three decades,<\/p>\n
Americans have witnessed a series of incidents that\u2014<\/p>\n
at least on the surface\u2014seem to indicate unequal<\/p>\n
treatment of citizens by the legal system. A common<\/p>\n
practice among police and state patrols in the United<\/p>\n
States is profiling\u2014viewing certain characteristics as<\/p>\n
indicators of criminal behavior. African-American<\/p>\n
and Latino motorists have filed numerous lawsuits<\/p>\n
over the practice of profiling, alleging that the police,<\/p>\n
in an effort to seize illegal drugs and weapons or find<\/p>\n
undocumented immigrants, apply a race-based profile<\/p>\n
to stop and search them more frequently than White<\/p>\n
drivers. Said Michigan Congressman John Conyers, Jr.,<\/p>\n
\u201cThere are virtually no African-American males\u2014<\/p>\n
including Congressmen, actors, athletes and office<\/p>\n
workers\u2014who have not been stopped at one time or<\/p>\n
another for \u2026 driving while black\u201d (Barovick, 1998).<\/p>\n
The issue is not limited to driving. It affects peo-<\/p>\n
ple when they shop, eat in restaurants, travel in trains<\/p>\n
and airplanes, hail a cab, and walk through their neigh-<\/p>\n
borhoods. New York City police officers stopped<\/p>\n
approximately 3 million people between 2004 and<\/p>\n
2009, questioning all and frisking and arresting some.<\/p>\n
But police department statistics show that the stops<\/p>\n
were not race neutral. Black people accounted for<\/p>\n
52% of the stops, and Hispanics for 30%. According<\/p>\n
to columnist Bob Herbert, \u201c[T]he people getting<\/p>\n
stopped and frisked are mostly young, and most of<\/p>\n
them are black or brown and poor \u2026 If the police<\/p>\n
officers were treating white middle-class or wealthy<\/p>\n
individuals this way, the movers and shakers in this<\/p>\n
town would be apoplectic\u201d (Herbert, 2010).<\/p>\n
Since police agencies have started gathering<\/p>\n
statistics on the racial makeup of people targeted for<\/p>\n
traffic stops, border inspections, and other routine<\/p>\n
searches, and these disparities have come to light,<\/p>\n
some courts have ruled that a person\u2019s appearance<\/p>\n
may not be the basis for such stops. Psychologists<\/p>\n
also have a role to play on this issue, gathering data<\/p>\n
on the psychological consequences to victims of<\/p>\n
racial profiling, improving police training so that<\/p>\n
cultural and racial awareness is enhanced, and exam-<\/p>\n
ining how decision makers form implicit judgments<\/p>\n
of others on the basis of race.<\/p>\n
In keeping with the laudable goal of equality<\/p>\n
under the law, the U.S. Supreme Court has occasion-<\/p>\n
ally applied a principle of proportionality to its<\/p>\n
analysis of cases involving criminal sentencing. This<\/p>\n
principle means that the punishment should be consis-<\/p>\n
tently related to the magnitude of the offense. More<\/p>\n
serious wrongdoing should earn more severe penalties.<\/p>\n
If a relatively minor crime leads to a harsh punishment,<\/p>\n
then the fundamental values of proportionality and,<\/p>\n
hence, equality have been violated.<\/p>\n
The principle of proportionality has influenced<\/p>\n
the way that juvenile offenders are sentenced. Recog-<\/p>\n
nizing that impulsiveness and psychosocial immaturity<\/p>\n
render juveniles both less culpable and more likely<\/p>\n
to be rehabilitated than adult offenders, the U.S.<\/p>\n
Supreme Court has overturned harsh sentences for<\/p>\n
juvenile offenders in the quest for equality. Individuals<\/p>\n
who commit murder before the age of 18 cannot be<\/p>\n
subjected to the death penalty (Roper v. Simmons, 2005)<\/p>\n
nor automatically sentenced to life without the possi-<\/p>\n
bility of parole (Miller v. Alabama, 2012). The Court<\/p>\n
has determined that because juveniles sentenced to<\/p>\n
life in prison would spend more years and a larger<\/p>\n
percentage of their lives behind bars, that sentence is<\/p>\n
disproportionately harsh and not equal to a life sentence<\/p>\n
received by adults. We describe the case that led to that<\/p>\n
ruling in Box 1.2.<\/p>\n
Although the Supreme Court\u2019s decision in the<\/p>\n
case of Miller v. Alabama seems consistent with a due<\/p>\n
process perspective that emphasizes individual rights,<\/p>\n
the Court has also upheld the constitutionality of<\/p>\n
three-strikes laws that reflect the crime control model\u2019s goal of keeping lawbreakers off the streets. These laws<\/p>\n
require that criminals convicted of a third felony, no<\/p>\n
matter how minor, be sentenced to 25 years to life<\/p>\n
in prison. The court decided that this punishment is<\/p>\n
not disproportionate to the severity of a third felony<\/p>\n
offense (Ewing v. California, 2003). So, even the highest<\/p>\n
court in the land struggles with the meaning of<\/p>\n
equality and its application to diverse sets of facts.<\/p>\n
The Value of Discretion. Although equality often<\/p>\n
remains an overriding principle, society also believes<\/p>\n
that in certain circumstances, discretion is appropriate.<\/p>\n
Discretion refers to judgments about the circum-<\/p>\n
stances of certain offenses that lead to appropriate<\/p>\n
variations in how the system responds to these offenses.<\/p>\n
It acknowledges that rigid application of the law can<\/p>\n
lead to injustices.<\/p>\n
Many professionals in the legal system have the<\/p>\n
opportunity to exercise discretion, and most do so<\/p>\n
regularly. Police officers show discretion when they<\/p>\n
decide not to arrest someone who has technically<\/p>\n
broken the law. They show discretion when they cal-<\/p>\n
culate the level of fines for speeding. (Incidentally,<\/p>\n
saying \u201cI\u2019m sorry\u201d actually results in lower fines<\/p>\n
[Day & Ross, 2011]!) Prosecutors exercise discretion<\/p>\n
when they decide which of many arrestees to charge<\/p>\n
B o x 1.2 THE CASE OF EVAN MILLER: LIFE SENTENCES FOR JUVENILE OFFENDERS<\/p>\n
ARE EXCESSIVE PUNISHMENT<\/p>\n
On July 15, 2003, 52-year-old Cole Cannon knocked on<\/p>\n
the door of his neighbor\u2019s trailer in the small town of<\/p>\n
Speake, Alabama, asking for some food. That trailer<\/p>\n
belonged to the family of 14-year-old Evan Miller, an<\/p>\n
active drug user being raised in an extremely abusive<\/p>\n
family and suffering from mental health problems. After<\/p>\n
Cannon had eaten, Miller and a friend accompanied him<\/p>\n
back to his trailer, intending to get him drunk and rob<\/p>\n
him. The three played drinking games and smoked mari-<\/p>\n
juana, and when Cannon passed out, Miller began hitting<\/p>\n
him, first with his fists and then with a baseball bat. The<\/p>\n
friends then set fire to Cannon\u2019s trailer, where he died of<\/p>\n
smoke inhalation.<\/p>\n
Miller was charged with murder in the course of<\/p>\n
arson and was tried as an adult, subject to all the penal-<\/p>\n
ties of adult felons. After he was convicted, the judge<\/p>\n
imposed a mandatory sentence of life without parole.<\/p>\n
Miller\u2019s appeal focused on his immature judgment and<\/p>\n
lack of moral sense. His attorneys argued that such a<\/p>\n
severe sentence was a form of cruel and unusual punish-<\/p>\n
ment, banned by the Eighth Amendment. The case was eventually decided by the U.S. Supreme<\/p>\n
Court. Among the documents that justices considered was<\/p>\n
a report submitted by a group of psychological scientists,<\/p>\n
summarizing research relevant to adolescent develop-<\/p>\n
ment. It concluded that (1) adolescents are less mature<\/p>\n
than adults in ways that make them less culpable, and (2)<\/p>\n
it is not possible to predict with any reliability whether a<\/p>\n
particular juvenile offender is likely to reoffend violently<\/p>\n
(American Psychological Association, 2011). In her major-<\/p>\n
ity decision, Justice Elena Kagan acknowledged that<\/p>\n
youths are different from adults, given their \u201cdiminished<\/p>\n
culpability and heightened capacity for change.\u201d She con-<\/p>\n
cluded that laws that mandate life sentences, when<\/p>\n
applied to juvenile offenders, are unconstitutional. Mill-<\/p>\n
er\u2019s case was referred back to the courts in Alabama for<\/p>\n
reconsideration of his life sentence.<\/p>\n
Critical Thought Question<\/p>\n
According to the Supreme Court, why does a sentence<\/p>\n
of life without parole constitute cruel and unusual<\/p>\n
and for what particular crime. Juries exercise discre-<\/p>\n
tion in not convicting defendants who killed under<\/p>\n
circumstances that may have justified their actions<\/p>\n
(e.g., self-defense, heat of passion). A jury may opt<\/p>\n
to exercise discretion when it deliberates the fate of<\/p>\n
community watch volunteer George Zimmerman,<\/p>\n
charged in the shooting death of an unarmed teen-<\/p>\n
ager, Trayvon Martin, in 2012. Zimmerman claimed<\/p>\n
that he acted in self-defense. Parole boards also have the opportunity to exer-<\/p>\n
cise discretion when they decide whether to commute<\/p>\n
a death sentence to life imprisonment (a process called<\/p>\n
granting clemency) or to allow an execution to pro-<\/p>\n
ceed as planned. The Georgia Board of Pardons and<\/p>\n
Parole faced that stark choice in 2011 when it had to<\/p>\n
decide whether death row inmate Troy Davis, who<\/p>\n
had been convicted for murdering a police officer,<\/p>\n
should be executed by lethal injection or allowed to<\/p>\n
B o x 1.3 THE CASE OF TROY DAVIS AND A PAROLE BOARD\u2019S DISCRETION<\/p>\n
Former President Jimmy Carter, Pope Benedict XVI, the<\/p>\n
Indigo Girls, Nobel Laureate Desmond Tutu, former FBI<\/p>\n
director William Sessions, Amnesty International, and for-<\/p>\n
mer Georgia Supreme Court justices may not agree on<\/p>\n
much. But in 2011 they all called for a stop to the pend-<\/p>\n
ing execution of Georgia death row inmate Troy Davis,<\/p>\n
whom they claimed was an innocent man. Davis was con-<\/p>\n
victed of murder in the 1989 shooting death of off-duty<\/p>\n
Savannah police officer Mark MacPhail and sentenced to<\/p>\n
death. Over the course of 20 years, Davis maintained his<\/p>\n
innocence, and his claim was bolstered by the possible<\/p>\n
confession of another person and by the recantation of<\/p>\n
seven eyewitnesses who said they lied during Davis\u2019 trial<\/p>\n
because they were threatened by an alternate suspect.<\/p>\n
Some jurors who convicted Davis signed affidavits declar-<\/p>\n
ing that they doubted his guilt.<\/p>\n
In Georgia, the authority to commute a death sen-<\/p>\n
tence into a less severe sentence rests with the Georgia Board of Pardons and Paroles. (In some states, governors<\/p>\n
have this discretion.) That board had declined to com-<\/p>\n
mute Davis\u2019 sentence once before. With an execution<\/p>\n
date pending and all other options exhausted, Davis\u2019<\/p>\n
attorneys appealed one last time to the five-member<\/p>\n
board, which conducted a hearing in which it heard<\/p>\n
from Davis\u2019s attorneys and supporters, and from prosecu-<\/p>\n
tors and MacPhail\u2019s relatives. Despite doubts about<\/p>\n
Davis\u2019s guilt, his surprising assortment of supporters, and<\/p>\n
petitions, rallies, and vigils held around the world on his<\/p>\n
behalf, the board denied Davis\u2019s request. He was exe-<\/p>\n
cuted in September, 2011.<\/p>\n
Critical Thought Question<\/p>\n
Explain why the Georgia Board of Pardons and Paroles<\/p>\n
may not have been willing to offer clemency.<\/p>\n
live. This case, described in Box 1.3, raises interesting<\/p>\n
questions about both discretion and the possibility of<\/p>\n
error in the criminal justice system.<\/p>\n
Discretion may be most obvious in the sentences<\/p>\n
administered by judges to convicted criminals. In many<\/p>\n
cases, judges are able to consider the particular circum-<\/p>\n
stances of the defendant and of the crime itself when<\/p>\n
they determine the sentence. It would seem that this<\/p>\n
use of discretion is good, yet as we describe in Chapter<\/p>\n
14, it can also lead to sentencing disparity, the ten-<\/p>\n
dency for judges to administer a variety of penalties<\/p>\n
for the same crime. The contrasting sentences handed<\/p>\n
out by judges in the Baltimore cases we described ear-<\/p>\n
lier provide one example of sentencing disparity.<\/p>\n
Sentencing disparity is also apparent in the penal-<\/p>\n
ties given to African Americans and members of other<\/p>\n
minority groups. African Americans are imprisoned at<\/p>\n
rates five to seven times higher than those of White<\/p>\n
Americans partly due to disparities in arrests for drug<\/p>\n
crimes. Police concentrate their attention on drugs<\/p>\n
that Blacks sell, and the penalties for possessing these<\/p>\n
drugs are severe (Tonry, 2010). Sentencing disparities<\/p>\n
can also be seen for Hispanics: one in six Hispanic<\/p>\n
males and one in 45 Hispanic females can expect to<\/p>\n
be imprisoned in his or her lifetime, more than dou-<\/p>\n
ble the rates of those who are not Hispanic (Mauer &<\/p>\n
King, 2007).<\/p>\n
A simple explanation for this disparity is racial<\/p>\n
bias, whereby police officers, prosecutors, jurors,<\/p>\n
and judges use an individual\u2019s race as a basis for judg-<\/p>\n
ments of his or her behavior. But the situation may<\/p>\n
actually be more complex. Some studies have shown<\/p>\n
that once decision makers are made aware of the<\/p>\n
potential for racial bias, they can largely avoid it,<\/p>\n
and racial injustices in the criminal justice system<\/p>\n
have declined in recent years (Spohn, 2000).<\/p>\n
A subtler, more insidious form of race-based<\/p>\n
judgment may be prevalent in the justice system,<\/p>\n
however. Social psychological research has shown<\/p>\n
that individuals of the same race may be stereotyped<\/p>\n
and discriminated against to different degrees,<\/p>\n
depending how \u201ctypical\u201d of their group they appear.<\/p>\n
African Americans who possess more Afrocentric<\/p>\n
facial features may be subjected to more prejudicial<\/p>\n
treatment. An analysis of criminal sentencing in<\/p>\n
Florida showed that among Black defendants, those<\/p>\n
with more distinctive Afrocentric features were<\/p>\n
given longer sentences than those with less distinctive<\/p>\n
Afrocentric features (Blair, Judd, & Chapleau, 2004).<\/p>\n
Even more troubling, in death penalty cases involving White victims, the likelihood of a Black defendant<\/p>\n
being sentenced to death is influenced by whether<\/p>\n
he has a stereotypically Black appearance (Eberhardt,<\/p>\n
Davies, Purdie-Vaughns, & Johnson, 2006).<\/p>\n
To counteract sentencing disparity, many states<\/p>\n
implemented what is known as determinate<\/p>\n
sentencing: the offense determines the sentence, and<\/p>\n
judges and parole commissions have little discretion.<\/p>\n
But judges were frustrated by the severe limitations<\/p>\n
imposed on their discretion by determinate sentencing.<\/p>\n
One federal judge who resigned his appointment<\/p>\n
in protest said, \u201cIt\u2019s an unfair system that has been dehu-<\/p>\n
manized. There are rarely two cases that are identical.<\/p>\n
Judges should always have discretion. That\u2019s why we\u2019re<\/p>\n
judges. But now we\u2019re being made to be robots.\u201d<\/p>\n
The pendulum has now swung away from deter-<\/p>\n
minate sentencing and toward allowing judges more<\/p>\n
discretion. Permitting judges more leeway to consider<\/p>\n
factors such as the defendant\u2019s background, motiva-<\/p>\n
tions for committing the crime, and any psychological<\/p>\n
disorders may strike a balance between the uniformity<\/p>\n
that determinate sentencing imposes and the judicial<\/p>\n
discretion that many judges prefer.<\/p>\n
The Third Choice: To Discover the Truth<\/p>\n
or to Resolve Conflicts<\/p>\n
What is the purpose of a court hearing or a trial? Your<\/p>\n
first reaction may be \u201cTo find out the truth, of<\/p>\n
course!\u201d Determining the truth means learning the<\/p>\n
facts of a dispute, including events, intentions, actions,<\/p>\n
and outcomes. All this assumes that \u201cwhat really<\/p>\n
happened\u201d between two parties can be determined.<\/p>\n
Finding out the truth is a desirable goal, but it<\/p>\n
may also be lofty and, sometimes, downright impos-<\/p>\n
sible. The truth often lies somewhere between com-<\/p>\n
peting versions of an event. Because it is difficult for<\/p>\n
even well-meaning people to ascertain the facts in<\/p>\n
certain cases, some observers have proposed that the<\/p>\n
real purpose of a hearing or trial is to provide social<\/p>\n
stability by resolving conflict. Supreme Court Justice<\/p>\n
Louis Brandeis once wrote that \u201cit is more important<\/p>\n
that the applicable rule of law be settled than [that] it<\/p>\n
be settled right\u201d (Burnet v. Coronado Oil and Gas Co.,<\/p>\n
1932). This is a shift away from viewing the legal<\/p>\n
system\u2019s purpose as doing justice toward viewing its<\/p>\n
goal as \u201ccreating a sense that justice is being done\u201d<\/p>\n
(Miller & Boster, 1977, p. 34).<\/p>\n
Because truth is elusive, the most important pri-<\/p>\n
ority of a hearing or a trial may be to provide a setting<\/p>\n
in which all interested parties have their \u201cday in<\/p>\n
court.\u201d Justice replaces truth as the predominant<\/p>\n
goal. In fact, attorneys representing the opposing<\/p>\n
parties in a case do not necessarily seek \u201cthe truth.\u201d<\/p>\n
Nor do they represent themselves as \u201cobjective.\u201d<\/p>\n
They reflect a different value\u2014the importance of giving<\/p>\n
their side the best representation possible, within the<\/p>\n
limits of the law. (The Code of Ethics of the American<\/p>\n
Bar Association even instructs attorneys to defend their<\/p>\n
clients \u201czealously.\u201d) Because lawyers believe the pur-<\/p>\n
pose of a hearing or trial is to win disputes, they present<\/p>\n
arguments supporting their client\u2019s perspective and back<\/p>\n
up their arguments with the best available evidence.<\/p>\n
One argument in favor of the adversary system,<\/p>\n
in which a different attorney represents each party, is<\/p>\n
that it encourages the attorneys to discover and intro-<\/p>\n
duce all evidence that might induce the judge or jury<\/p>\n
to react favorably to their client\u2019s case. When both<\/p>\n
sides believe that they have had the chance to voice<\/p>\n
their case fully and their witnesses have revealed all the<\/p>\n
relevant facts, participants are more likely to feel they<\/p>\n
have been treated fairly by the system, and the system<\/p>\n
is more likely to be considered an effective one. This<\/p>\n
is an important part of a theory known as procedural<\/p>\n
justice, a concept presented in Chapter 2.<\/p>\n
\u201cConflict resolution\u201d and \u201ctruth,\u201d as goals, are<\/p>\n
not always incompatible. When each participant<\/p>\n
ensures that his or her concerns and supporting<\/p>\n
documentation are presented in court, the goal of<\/p>\n
learning the truth becomes more attainable. But<\/p>\n
frequently a tension between these goals exists,<\/p>\n
and in some instances, the satisfactory resolution of<\/p>\n
a conflict may be socially and morally preferable to<\/p>\n
the discovery of an objectively established truth. Yet<\/p>\n
resolving conflict in a hurried or haphazard manner<\/p>\n
can have a downside, as illustrated by the experience<\/p>\n
of Richard Jewell.<\/p>\n
Jewell was a security guard at the 1996 Summer<\/p>\n
Olympics in Atlanta. Shortly after a bombing that<\/p>\n
disrupted the Games, the Federal Bureau of Investi-<\/p>\n
gation (FBI) began to question Jewell, who discov-<\/p>\n
ered the bomb. Although at first the FBI denied<\/p>\n
that he was a suspect, they treated him like one, and<\/p>\n
his name and photograph were widely publicized.<\/p>\n
The pressure to find the person responsible for this<\/p>\n
terrifying act\u2014and the desire to give people a sense<\/p>\n
that no more bombings would occur because the per-<\/p>\n
petrator had been caught\u2014doubtless influenced the<\/p>\n
premature focus on Richard Jewell. Despite relentless<\/p>\n
FBI investigation, no charges were brought against Jewell, and in 2005, Eric Rudolph, a fugitive who<\/p>\n
lived in the hills of North Carolina for years after<\/p>\n
the bombing, pleaded guilty to the offense.<\/p>\n
Truth versus Conflict Resolution in Plea Bargaining<\/p>\n
and Settlement Negotiations. The legal system is<\/p>\n
a massive bureaucracy, and in every bureaucracy<\/p>\n
there is a temptation to value pragmatic efficiency<\/p>\n
rather than correct or just outcomes. The heavy reli-<\/p>\n
ance on plea bargaining is often criticized because it<\/p>\n
appears to give priority to conflict resolution over<\/p>\n
truth seeking. As we describe in Chapter 8, between<\/p>\n
90% and 95% of defendants never go to trial; they<\/p>\n
accept the offer of the prosecutor and plead guilty to<\/p>\n
a lesser charge. Even some innocent persons plea bar-<\/p>\n
gain after being convinced that the evidence against<\/p>\n
them is overwhelming. Indeed, plea bargaining is an<\/p>\n
integral part of the criminal justice system. The state<\/p>\n
benefits by avoiding the expense and trouble of trial<\/p>\n
and the possibility of an acquittal, and by obtaining<\/p>\n
the testimony of the accused person against others<\/p>\n
involved in the crime. The defendant benefits by<\/p>\n
receiving some kind of reduction in the penalty<\/p>\n
imposed. In addition to these pragmatic benefits,<\/p>\n
justice is furthered by a system that rewards a show<\/p>\n
of remorse (which usually accompanies a guilty plea)<\/p>\n
and enables the prosecutor and defense counsel,<\/p>\n
together with the judge, to negotiate a resolution<\/p>\n
appropriate to the degree of wrongdoing (Kamisar,<\/p>\n
LaFave, & Israel, 1999). Nonetheless, plea bargaining<\/p>\n
reveals that the goal of maintaining stability and effi-<\/p>\n
ciency in the system is achieved at some cost. That<\/p>\n
cost is the public\u2019s opportunity to determine the<\/p>\n
complete truth.<\/p>\n
The civil justice system uses a procedure similar<\/p>\n
to plea bargaining to resolve about 90% of the con-<\/p>\n
flicts between a plaintiff and a defendant. Settlement<\/p>\n
negotiation involves a sometimes-lengthy pretrial<\/p>\n
process of give-and-take, offer-and-demand that<\/p>\n
ends when a plaintiff agrees to accept what a defen-<\/p>\n
dant is willing to offer to end their legal disagreement.<\/p>\n
It also favors the goal of conflict resolution at the<\/p>\n
expense of determining what really happened.<\/p>\n
New Thoughts on Conflict Resolution. Despite<\/p>\n
the traditional prominence of adversarial procedures<\/p>\n
to resolve disputes, many legal problems are actually<\/p>\n
handled in a nonadversarial manner. Throughout the<\/p>\n
book we present situations in which people work<\/p>\n
together in a cooperative way to settle their differences<\/p>\n
and reach a resolution that is acceptable to all.<\/p>\n
Many divorcing couples opt to collaborate<\/p>\n
rather than contend with each other as they end<\/p>\n
their marriage. In situations where parents have<\/p>\n
failed to nurture their children, family court judges<\/p>\n
temporarily remove children from their homes and<\/p>\n
provide extensive counseling, education, and other<\/p>\n
social service interventions to parents, hoping eventu-<\/p>\n
ally to restore the family unit. In some jurisdictions,<\/p>\n
people arrested for drug-related crimes are given the<\/p>\n
opportunity to have their cases resolved in drug courts<\/p>\n
that focus on treating the underlying problem of<\/p>\n
addiction, rather than simply punishing the offender.<\/p>\n
In lawsuits in which plaintiffs are injured due to<\/p>\n
defendants\u2019 negligence and the parties attempt to<\/p>\n
negotiate a settlement rather than go to trial, these<\/p>\n
negotiations offer an opportunity for defendants to<\/p>\n
apologize to plaintiffs. Research shows that apologies<\/p>\n
may advance settlement negotiations (Robbennolt,<\/p>\n
2003), reduce plaintiffs\u2019 inclinations to sue (Greene,<\/p>\n
2008), and dissipate tension and antagonism in the<\/p>\n
settlement process (Shuman, 2000). What these situations have in common is that<\/p>\n
they do not operate in a zero-sum fashion in which<\/p>\n
one party wins and another loses. Rather, they<\/p>\n
attempt to maximize positive outcomes for all con-<\/p>\n
cerned, with the objective of keeping the dispute<\/p>\n
from escalating further and involving more formal<\/p>\n
adjudication proceedings.<\/p>\n
The idea that the law is a social force with con-<\/p>\n
sequences for people\u2019s well-being, an approach<\/p>\n
termed therapeutic jurisprudence, is discussed further<\/p>\n
in Chapter 2. Reform-minded lawyers, jurists, and<\/p>\n
legal scholars advocate for legal procedures and insti-<\/p>\n
tutions that facilitate therapeutic ends. They ask how<\/p>\n
the law can be applied or reformed to enhance indi-<\/p>\n
viduals\u2019 welfare. Therapeutic jurisprudence has been<\/p>\n
applied in nearly all areas of the law, including crimi-<\/p>\n
nal law, family law, employment law, probate, health<\/p>\n
care, workers\u2019 compensation, and labor arbitration.<\/p>\n
The Fourth Choice: Science versus<\/p>\n
the Law as a Source of Decisions<\/p>\n
When one discipline (in our case, psychology) seeks<\/p>\n
to understand another (the law), a dilemma is likely to<\/p>\n
arise because each approaches knowledge in a differ-<\/p>\n
ent way. When asked, \u201cHow do you know whether<\/p>\n
that decision is the right one?\u201d each discipline relies<\/p>\n
on different methods, even though both share the<\/p>\n
goal of understanding human experience.<\/p>\n
As you read this book you will learn that in many<\/p>\n
cases the U.S. Supreme Court and other courts have<\/p>\n
considered data and conclusions presented by psychol-<\/p>\n
ogists and other social scientists. In several of these, the<\/p>\n
American Psychological Association (APA) prepared<\/p>\n
a written document, called an amicus curiae (\u201cfriend<\/p>\n
of the court\u201d) brief, for consideration by an appellate<\/p>\n
court. Such amicus curiae briefs provide the courts with<\/p>\n
information from psychological science and practice<\/p>\n
relevant to the issues in a particular case. In many of<\/p>\n
its decisions (including Miller v. Alabama, presented ear-<\/p>\n
lier in this chapter), the Supreme Court incorporated<\/p>\n
input from the amicus curiae brief, although in other<\/p>\n
cases it disregarded the social science data altogether.<\/p>\n
This inconsistency reflects the fact that the justices<\/p>\n
sometimes use different procedures and concepts from<\/p>\n
those of social science in forming their judicial opinions<\/p>\n
(Grisso & Saks, 1991).<\/p>\n
In addition to employing different procedures,<\/p>\n
each profession may use idiosyncratic or unique con-<\/p>\n
cepts to describe the same phenomenon. An attod a social scientist will see the same event from<\/p>\n
different perspectives. Neither is necessarily more<\/p>\n
accurate than the other and their differences are the<\/p>\n
result of exposure to and training in different points<\/p>\n
of view. The following subsections illustrate such dif-<\/p>\n
ferences in more detail (see also Ogloff & Finkelman,<\/p>\n
1999; Robbennolt & Davidson, 2011).<\/p>\n
Law Relies on Precedents; Psychology Relies on<\/p>\n
Scientific Methods. In contrast to the law, psychol-<\/p>\n
ogy is generally committed to the idea that there is an<\/p>\n
objective world of experience that can be understood<\/p>\n
by adherence to the rules of science\u2014systematic test-<\/p>\n
ing of hypotheses by observation and experimental<\/p>\n
methodology. As a scientist, the psychologist should<\/p>\n
be committed to a public, impersonal, objective pur-<\/p>\n
suit of truth, using methods that can be repeated<\/p>\n
by others and interpreting results by predetermined<\/p>\n
standards. Although this traditional view of psychol-<\/p>\n
ogy\u2019s approach to truth is sometimes challenged as<\/p>\n
naive and simplistic because it ignores the importance<\/p>\n
of the personal, political, and historical biases that affect<\/p>\n
scientists as much as nonscientists (Gergen, 1994), it<\/p>\n
still represents the values and methods in which most<\/p>\n
psychologists are trained. (It also represents the authors\u2019<\/p>\n
beliefs that the scientific method and the research skills<\/p>\n
of psychologists are the most essential and reliable tools<\/p>\n
available for examining the many important legal<\/p>\n
questions we address throughout the book.) By contrast, when they establish new laws, legal<\/p>\n
experts rely heavily on precedents\u2014rulings in previ-<\/p>\n
ous cases (as well as the Constitution and the statutes)<\/p>\n
for guidance. Case law\u2014the law made by judges<\/p>\n
ruling in individual cases\u2014is very influential; statutes<\/p>\n
and constitutional safeguards do not apply to every<\/p>\n
new situation, so past cases often serve as precedents<\/p>\n
for deciding current ones. The principle of stare decisis<\/p>\n
(\u201clet the decision stand,\u201d reflecting the importance of<\/p>\n
abiding by previous decisions) is also important in this<\/p>\n
process. Judges typically are reluctant to make decisions<\/p>\n
that contradict earlier ones, as the history of the<\/p>\n
Supreme Court\u2019s school desegregation cases indicates.<\/p>\n
When the U.S. Supreme Court voted unani-<\/p>\n
mously in 1954, in Brown v. Board of Education, that<\/p>\n
public school segregation was contrary to the law,<\/p>\n
many reports claimed that it \u201csupplanted\u201d or even<\/p>\n
\u201coverturned\u201d a ruling in the 1896 case of Plessy v. Fer-<\/p>\n
guson. But intermediate decisions by the Court permit-<\/p>\n
ted this seemingly abrupt change to evolve gradually.<\/p>\n
A brief history of rulings that led up to the Brown v.<\/p>\n
Board of Education decision illustrates this phenomenon<\/p>\n
and the way that the law proceeds from case to case.<\/p>\n
We begin with the state of Louisiana\u2019s dispute<\/p>\n
with Homer Plessy. During a train trip in Louisiana in<\/p>\n
the 1890s, Plessy sat down in a railroad car labeled<\/p>\n
\u201cWhites Only.\u201d Plessy\u2019s ancestry was mostly Caucasian,<\/p>\n
but he had one Negro great-grandparent. Therefore,<\/p>\n
according to the laws of Louisiana at that time, Pleswas considered Black (or colored, the term used at that<\/p>\n
time). Plessy refused to move to a car designated for<\/p>\n
\u201ccolored\u201d passengers, as a recently passed state law<\/p>\n
required.He took his claim to court, buta New Orleans<\/p>\n
judge ruled that, contrary to Plessy\u2019s argument, the stat-<\/p>\n
ute that segregated railroad cars by race did not violate<\/p>\n
the Fourteenth Amendment to the Constitution. In<\/p>\n
other words, it did not fail to give Plessy \u201cequal protec-<\/p>\n
tion under the law.\u201d Plessy persisted in his appeal, and<\/p>\n
eventually, in 1896, the U.S. Supreme Court upheld<\/p>\n
the decision of the judge and the lower courts. Judge<\/p>\n
Henry Billings Brown, speaking for the majority faction<\/p>\n
of the Supreme Court, declared that laws that had estab-<\/p>\n
lished separate facilities for the races did not necessarily<\/p>\n
imply that one race was inferior to the other.<\/p>\n
Although this opinion was a far cry from the<\/p>\n
1954 Brown decision, which highlighted the detri-<\/p>\n
mental effects of segregation on the personality devel-<\/p>\n
opment of Black children, cases decided after Plessy<\/p>\n
and before Brown would foreshadow the Court\u2019s<\/p>\n
eventual leanings. One case was brought by George<\/p>\n
McLaurin, the first Black student admitted to the<\/p>\n
University of Oklahoma\u2019s Graduate School of<\/p>\n
Education. Although McLaurin was allowed to enroll,<\/p>\n
he was segregated from all his classmates. His desk was<\/p>\n
separated from all the others by a rail, to which the<\/p>\n
sign \u201cReserved for Colored\u201d was attached. He was<\/p>\n
given a separate desk at the library and was required<\/p>\n
to eat by himself in the cafeteria. In the 1950 case of<\/p>\n
McLaurin v. Oklahoma State Regents, the U.S. Supreme<\/p>\n
Court ruled unanimously that these procedures denied<\/p>\n
McLaurin the right to equal protection of the law. The<\/p>\n
Court concluded that such restrictions would \u201cimpair<\/p>\n
and inhibit his ability to study, to engage in discussion<\/p>\n
and exchange of views with other students.\u201d But the<\/p>\n
Court did not strike down Plessy v. Ferguson in this<\/p>\n
decision.<\/p>\n
With a more liberal Court in the 1950s, there<\/p>\n
was enough momentum to reverse Plessy v. Ferguson,<\/p>\n
however. Chief Justice Earl Warren, who liked to ask,<\/p>\n
\u201cWhat is fair?\u201d spearheaded the unanimous decision<\/p>\n
that finally overturned the idea that separate facilities<\/p>\n
can be \u201cequal.\u201d He wrote that separating Black chil-<\/p>\n
dren \u201cfrom others of similar age and qualifications<\/p>\n
solely because of their race generates a feeling of infe-<\/p>\n
riority as to their status in the community that may<\/p>\n
affect their hearts and minds in a way unlikely to ever<\/p>\n
be undone\u201d (Brown v. Board of Education, 1954).<\/p>\n
The school desegregation cases show that lawyers<\/p>\n
reason from case to case. They locate cases that are similar to the one at hand and then base their argu-<\/p>\n
ments on the rulings from these legal precedents.<\/p>\n
Psychologists, on the other hand, value the scientific<\/p>\n
method, rely on experimental and evaluation studies,<\/p>\n
and prefer to gather data that describe large numbers<\/p>\n
of people. Just as psychologists are cautious of findings<\/p>\n
based on very small samples, lawyers are hesitant to<\/p>\n
decide a person\u2019s fate on the basis of aggregate data<\/p>\n
drawn from other people (Ellsworth & Mauro, 1998).<\/p>\n
Law Deals with Absolutes; Psychology Deals with<\/p>\n
Probabilities. Legal questions often require an<\/p>\n
\u201ceither\u2013or\u201d response: A person is either fit or unfit to<\/p>\n
be a parent; a person was either insane or sane when he<\/p>\n
or she committed a particular act (Ellsworth & Mauro,<\/p>\n
1998). Psychologists are not comfortable reasoning in<\/p>\n
absolutes. They prefer to think in terms of probabilities<\/p>\n
(e.g., that a defendant\u2019s delusional thinking could indi-<\/p>\n
cate a psychiatric disorder, that a White eyewitness to a<\/p>\n
crime is more likely to misidentify a Black perpetrator<\/p>\n
than a White perpetrator). Although the law looks<\/p>\n
to psychologists for \u201ceither\u2013or\u201d answers (e.g., \u201cIs the<\/p>\n
defendant competent to stand trial?\u201d and \u201cWas the<\/p>\n
defendant insane at the time of the crime?\u201d), psychol-<\/p>\n
ogists usually prefer to answer in terms of likelihoods<\/p>\n
or qualified \u201cmaybes.\u201d Lawyers may have difficulty<\/p>\n
with such inconclusive responses because they need a<\/p>\n
final resolution to a dispute.<\/p>\n
Law Supports Contrasting Views of Reality;<\/p>\n
Psychology Seeks One Refined View of Reality.<\/p>\n
As indicated earlier, judges and jurors must decide<\/p>\n
which of two conceptions of the truth is more accept-<\/p>\n
able in light of conflicting facts. Attorneys assemble all<\/p>\n
the facts that support their side and argue forcefully<\/p>\n
that their version of the facts is the correct one.<\/p>\n
Although this procedure is similar to some scientific<\/p>\n
activities (a psychologist may do a study that compares<\/p>\n
predictions from two theories), the psychologist is<\/p>\n
trained to be objective and open to all perspectives<\/p>\n
and types of data. The psychologist\u2019s ultimate goal<\/p>\n
is to integrate or assimilate conflicting findings into<\/p>\n
one refined view of the truth, rather than choosing<\/p>\n
between alternative views.<\/p>\n
Some observers have likened this difference<\/p>\n
between psychology and law to the difference between<\/p>\n
scaling a mountain and fighting in a boxing match. As<\/p>\n
psychologists gain a clearer understanding of a topic<\/p>\n
(e.g., the causes of elder abuse), they scale a figurative<\/p>\n
mountain, at the top of which lies true and complete<\/p>\n
understanding. Although they may never actually reachthis pinnacle of knowledge, psychologists highly value<\/p>\n
the accumulation of data, the development of psycho-<\/p>\n
logical theory, and the quest for \u201ctruth.\u201d By contrast,<\/p>\n
lawyers are less interested in ascertaining the objective<\/p>\n
truth about a topic and are more concerned with<\/p>\n
winning against their adversary, resolving a dispute,<\/p>\n
or, more recently, enhancing the laws\u2019 effect on<\/p>\n
all parties.<\/p>\n
Such distinctions only scratch the surface of<\/p>\n
the differences between law and psychology. In<\/p>\n
Chapter 2 we consider differing notions of justice in<\/p>\n
the two fields, and in subsequent chapters we will<\/p>\n
discuss the implications of these differences. As with<\/p>\n
the previous choices, selecting one domain over the<\/p>\n
other does not always yield a satisfactory resolution.<\/p>\n
The use of both perspectives moves us closer to an<\/p>\n
adequate understanding than does relying only on<\/p>\n
one. Both psychologists and lawyers should remain<\/p>\n
aware of the limits of their own perspective and realize<\/p>\n
that other viewpoints are essential for a fuller under-<\/p>\n
standing of complex behavioral issues in the law.<\/p>\n
But the contrast in knowledge-generating pro-<\/p>\n
cedures does raise difficult procedural questions. For<\/p>\n
example, given the differences in approach, how<\/p>\n
should a psychologist respond to the challenge of<\/p>\n
studying the law? What roles should the psychologist<\/p>\n
play in the legal system? What ethical concerns are<\/p>\n
associated with psychologists\u2019 involvement in the<\/p>\n
legal system?<\/p>\n
P S Y C H O L O G I S T S \u2019 R O L E S<\/p>\n
I N T H E L A W<\/p>\n
Most courses in psychology portray only two roles for<\/p>\n
psychologists: the scientist, who conducts basic<\/p>\n
research about the causes and development of behav-<\/p>\n
ior, and the applied psychologist (usually a clinical<\/p>\n
psychologist), who tries to understand and assist indi-<\/p>\n
viduals or groups in addressing behavioral issues.<\/p>\n
The possibilities are more elaborate, however, when<\/p>\n
the psychologist is involved in the legal system. We<\/p>\n
describe five distinct roles for psychologists in the<\/p>\n
legal system: basic scientist, applied scientist, policy<\/p>\n
evaluator, forensic evaluator, and consultant. The<\/p>\n
work inherent in these roles ranges from isolated aca-<\/p>\n
demic research in psychology that may be relevant to<\/p>\n
law, on one end, to active collaboration with people<\/p>\n
who work in the legal system, on the other end. As you will see, the five roles vary in several<\/p>\n
respects. But whatever the role, it carries standards<\/p>\n
about what is acceptable and unacceptable behavior.<\/p>\n
Professionals often develop explicit statements of eth-<\/p>\n
ical standards of behavior. For psychologists, those<\/p>\n
principles\u2014known as the Ethical Principles of<\/p>\n
Psychologists and Code of Conduct\u2014have been pub-<\/p>\n
lished by the American Psychological Association<\/p>\n
(2012a). They describe a series of broad principles<\/p>\n
followed by a more specific set of standards. Adher-<\/p>\n
ence to the standards is mandatory for psychologists.<\/p>\n
Among the many topics they cover is when psychol-<\/p>\n
ogists should terminate treatment and how to do so.<\/p>\n
Making the right ethical choice is complicated.<\/p>\n
Sometimes, the principles specified by these ethics<\/p>\n
codes conflict with the psychologist\u2019s legal responsi-<\/p>\n
bilities. The most explicit illustration of this dilemma<\/p>\n
is the ethical obligation to protect clients\u2019 confidenti-<\/p>\n
ality when they have threatened to harm others and<\/p>\n
the legal responsibility to report those threats. This<\/p>\n
conflict was apparent in the controversial Tarasoff<\/p>\n
decision by the Supreme Court of California, described<\/p>\n
in Box 1.4.<\/p>\n
In the following sections, we describe the various<\/p>\n
roles that psychologists assume in relation to the legal<\/p>\n
system and the ethical issues that arise in each context.<\/p>\n
A footnote on psychologists\u2019 relationship to the law:<\/p>\n
Students often wonder how they can become<\/p>\n
involved in this field as basic scientists, applied scien-<\/p>\n
tists, policy evaluators, forensic evaluators, or consul-<\/p>\n
tants. What career paths should one pursue, and what<\/p>\n
professional opportunities exist at the ends of those<\/p>\n
trails? How might a developmental psychologist, a<\/p>\n
cognitive neuropsychologist, or a clinician (for<\/p>\n
example) interact with the legal system? The website<\/p>\n
of the American Psychology-Law Society (a division<\/p>\n
of the APA) has practical and career-related advice<\/p>\n
for practitioners, educators, researchers, and students<\/p>\n
(www.ap-ls.org). Those undertaking careers in psy-<\/p>\n
chology and law should also familiarize themselves<\/p>\n
with the ethical requirements pertaining to their<\/p>\n
professions.<\/p>\n
The Psychologist as a Basic Scientist<\/p>\n
of the Law<\/p>\n
A basic scientist pursues knowledge for its own<\/p>\n
sake. Basic scientists study a phenomenon for the sat-<\/p>\n
isfaction of understanding it and contributing to<\/p>\n
B o x 1.4 THE CASE OF TATIANA TARASOFF: THE DUTY TO PROTECT<\/p>\n
Few legal decisions have had as much impact on the prac-<\/p>\n
tice of psychotherapy as the now-famous case of Tarasoff<\/p>\n
v. Regents of the University of California. The decision<\/p>\n
focuses on the duties required of psychotherapists<\/p>\n
whose clients threaten violence.<\/p>\n
Prosenjit Poddar was a graduate student at the Uni-<\/p>\n
versity of California who became infatuated with Tatiana<\/p>\n
Tarasoff. Poddar was inexperienced in romantic relation-<\/p>\n
ships and was confused about Tatiana\u2019s on-again\u2013off-<\/p>\n
again behavior; she was friendly toward him one day but<\/p>\n
avoided him completely the next night. After Poddar<\/p>\n
became a client of a psychologist at the university counsel-<\/p>\n
ing center, he confided that he intended to kill a girl who<\/p>\n
had rebuffed him. The psychologist told his supervisor of<\/p>\n
this threat and then called the campus police, requesting<\/p>\n
that they detain Poddar. They did so but soon released<\/p>\n
him, believing his promise that he would stay away from<\/p>\n
Tatiana, who was out of the country at the time. Poddar<\/p>\n
didn\u2019t keep his promise. Two months later, he went to<\/p>\n
Tatiana\u2019s home and stabbed her to death. He was eventu-<\/p>\n
ally convicted of murder.<\/p>\n
Tatiana Tarasoff\u2019s parents sued the university, the<\/p>\n
psychologists, and the campus police for failing to warn<\/p>\n
them or their daughter about Poddar\u2019s threats. The<\/p>\n
California Supreme Court ruled in the parents\u2019 favor by deciding that the university had been negligent. The<\/p>\n
first Tarasoff decision (1974) recognized the duty of a<\/p>\n
psychotherapist to warn identifiable potential victims of<\/p>\n
therapy patients when the therapist \u201cknows or should<\/p>\n
have known\u201d that the patient presented a threat to<\/p>\n
that victim. The court established a standard that thera-<\/p>\n
pists have a duty to use \u201creasonable care\u201d to protect<\/p>\n
identifiable potential victims from clients in psychother-<\/p>\n
apy who threaten violence. A second Tarasoff decision<\/p>\n
in 1976 broadened this duty to include the protection of<\/p>\n
third parties from patient violence. Courts in several<\/p>\n
other states have extended this duty to the protection<\/p>\n
of property and the protection of all foreseeable victims,<\/p>\n
not just identifiable ones.<\/p>\n
The Tarasoff case still governs psychologists\u2019 conduct<\/p>\n
in multiple states. Many psychologists feel caught in a no-<\/p>\n
win situation: They can be held responsible for their cli-<\/p>\n
ents\u2019 violence if they do not warn potential victims, but<\/p>\n
they can also be held responsible for breaching their cli-<\/p>\n
ents\u2019 confidentiality if they do.<\/p>\n
Critical Thought Question<\/p>\n
Why is it necessary to specify explicitly what a psychologist<\/p>\n
must do if he or she hears a client threaten to harm a per-scientific advances in the area. They do not necessarily<\/p>\n
seek to apply their research findings; many have no<\/p>\n
concern with whether the knowledge they generate<\/p>\n
will be used to resolve real-world problems. Yet often<\/p>\n
their results can address important practical issues,<\/p>\n
including some that arise in the law. For example,<\/p>\n
though not specifically conducted for use in the<\/p>\n
courtroom, laboratory research on visual perception<\/p>\n
can help us understand the accuracy of eyewitness<\/p>\n
testimony about a crime or accident. Psychologists<\/p>\n
who test different theories of memory promote a bet-<\/p>\n
ter understanding of whether repression can cause<\/p>\n
long-term forgetting of traumatic events. Basic<\/p>\n
research on the relationship between social attitudes<\/p>\n
and behavior can clarify why people obey or disobey<\/p>\n
the law. Research in personality psychology can help<\/p>\n
to show what kind of person will become a follower<\/p>\n
in a terrorist group and what kind of person will be a<\/p>\n
leader. Studies of adolescents\u2019 brain development may<\/p>\n
be relevant to their decisions about whether to com-<\/p>\n
mit petty crimes. Finally, research can assess whether<\/p>\n
forensic psychologists\u2019 attitudes about the causes of<\/p>\n
crime affect their professional evaluations of criminal<\/p>\n
defendants. The Ethics of the Basic Scientist. Like all scien-<\/p>\n
tists, psychologists who do basic research must adhere<\/p>\n
to standards of conduct in how they undertake and<\/p>\n
report their studies. In practical terms, this means that<\/p>\n
they cannot fabricate or forge data, plagiarize, or<\/p>\n
present a skewed selection of the data to hide observa-<\/p>\n
tions that do not fit their conclusions. They must treat<\/p>\n
human subjects in an ethical manner. (All institutions<\/p>\n
that receive federal research funding have review boards<\/p>\n
that evaluate the way scientists treat human and animal<\/p>\n
subjects.) Basic researchers sometimes have a conflict of<\/p>\n
interest when faced with competing concerns such as<\/p>\n
honestly reporting their research findings versus making<\/p>\n
a profit or \u201cgetting published.\u201d In these situations, they<\/p>\n
should learn to recognize and be honest about potential<\/p>\n
conflicts of interest and communicate them to inter-<\/p>\n
ested parties before undertaking the research.<\/p>\n
The Psychologist as an Applied<\/p>\n
Scientist in the Law<\/p>\n
An applied scientist is dedicated to applying knowl-<\/p>\n
edge to solve real-life problems. Most of the public\u2019s<\/p>\n
awareness of a psychologist\u2019s work reflects this role,<\/p>\n
whether this awareness comes from viewing TV\u2019s Dr.<\/p>\n
Phil or watching a psychologist testify as an expert<\/p>\n
witness in a dramatized trial. Indeed, an important<\/p>\n
role for psychologists who are interested in applying<\/p>\n
the findings of their profession involves serving as<\/p>\n
an expert witness in a legislative hearing or in a<\/p>\n
courtroom.<\/p>\n
Juries, judges, and legislators cannot be expected<\/p>\n
to be well versed in every topic from abscesses to<\/p>\n
zinfandel wine. An expert witness is someone who<\/p>\n
possesses specialized knowledge about a subject,<\/p>\n
knowledge that the average person does not have.<\/p>\n
Psychologists may testify as expert witnesses during a<\/p>\n
trial based on their knowledge, experience, and train-<\/p>\n
ing regarding psychological issues. The expert\u2019s task is<\/p>\n
to assist jurors and judges by providing an opinion<\/p>\n
based on this specialized knowledge.<\/p>\n
Either side, as part of its presentation of the evi-<\/p>\n
dence, may ask the judge to allow expert witnesses to<\/p>\n
testify. The judge must be convinced that the testi-<\/p>\n
mony the expert will present is of a kind that requires<\/p>\n
specialized knowledge, skill, or experience and that<\/p>\n
the testimony will help promote better legal decision<\/p>\n
making. (When psychologists testify concerning a<\/p>\n
particular individual based on the results of a forensic<\/p>\n
evaluation, they take on a different role, one we<\/p>\n
describe later in this chapter.)<\/p>\n
The psychological topics that call for scientific<\/p>\n
expertise are almost limitless. As expert witnesses, psy-<\/p>\n
chologists have been called on to testify in many types<\/p>\n
of cases. For example, expert testimony may be useful<\/p>\n
in understanding<\/p>\n
\u25a0 Employee discrimination through selection and<\/p>\n
promotion procedures<\/p>\n
\u25a0 The effects of posting warning signs or safety<\/p>\n
instructions on potentially dangerous equipment<\/p>\n
\u25a0 The factors that may cause a suspect to make a<\/p>\n
false confession<\/p>\n
\u25a0 The effects of suggestive questions on children\u2019s<\/p>\n
memory of alleged abuse<\/p>\n
The Ethics of the Applied Scientist\/Expert Witness.<\/p>\n
The psychologist as expert witness represents a pro-<\/p>\n
fession that stands for objectivity and accuracy in its<\/p>\n
procedures. Even though expert witnesses are usually<\/p>\n
hired and paid by one side, they are responsible for<\/p>\n
reporting all their conclusions, regardless of whether<\/p>\n
these favor the side paying them. Furthermore, it<\/p>\n
violates the ethical standards of both psychologists and lawyers for expert witnesses to accept payment<\/p>\n
that is contingent on the outcome of the case.<\/p>\n
But achieving objectivity is not easy. When asked<\/p>\n
to testify as an expert, a psychologist has an ethical<\/p>\n
responsibility to be candid and explicit with the court<\/p>\n
about his or her opinions. Yet like other experts,<\/p>\n
psychologists may be tempted to sympathize with the<\/p>\n
side that has employed them. Is it possible to increase<\/p>\n
experts\u2019 objectivity? One commentator has proposed<\/p>\n
using \u201cblinded\u201d experts selected by an intermediary<\/p>\n
and hired to review the case without knowing which<\/p>\n
side has requested an opinion (Robertson, 2010).<\/p>\n
When blinded experts were pitted against traditional<\/p>\n
experts in a study examining mock jurors\u2019 decisions,<\/p>\n
the former were perceived as more credible and per-<\/p>\n
suasive than the latter (Robertson & Yokum, 2011).<\/p>\n
Another ethical dilemma arises whenever the<\/p>\n
adversary system forces an expert to make absolute<\/p>\n
\u201ceither\u2013or\u201d judgments. Has the pretrial publicity<\/p>\n
caused potential jurors to be biased against the defen-<\/p>\n
dant? In a custody case stemming from a divorce,<\/p>\n
which parent would be better for the child to live<\/p>\n
with? Does the evaluation of a defendant indicate<\/p>\n
that she is mentally ill? In all of these situations, the<\/p>\n
law requires the psychologist to reach a firm conclu-<\/p>\n
sion on the witness stand, regardless of ambiguity in<\/p>\n
the evidence (Sales & Shuman, 1993). This is an<\/p>\n
example of the absolute versus probabilistic judgment<\/p>\n
differences we described earlier in the chapter.<\/p>\n
Admissibility of Expert Testimony. In order to<\/p>\n
maximize the likelihood that expert testimony is<\/p>\n
based on legitimate scientific knowledge and to exclude<\/p>\n
\u201cjunk science,\u201d lawmakers have developed criteria for<\/p>\n
judges to use when determining whether to allow an<\/p>\n
\u201cexpert\u201d to testify. Each state and the federal govern-<\/p>\n
ment has its own criteria for determining admissibility.<\/p>\n
In federal and some state courts, these criteria are<\/p>\n
informed by a two-prong test developed by the U.S.<\/p>\n
Supreme Court in a highly influential case, Daubert v.<\/p>\n
Merrell Dow Pharmaceuticals, Inc. (1993). First, the trial<\/p>\n
judge must determine whether the testimony is rele-<\/p>\n
vant and, if relevant, whether it is based on reliable<\/p>\n
and valid science (Cutler & Kovera, 2011). In essence,<\/p>\n
judges function as \u201cgatekeepers\u201d who must evaluate<\/p>\n
potential expert testimony by the standards of science.<\/p>\n
Judges have disallowed expert psychological<\/p>\n
testimony as irrelevant. Consider the case of unlucky<\/p>\n
Pedro Gil. On a night of wild abandon in the fall of<\/p>\n
1993, Gil hoisted a bucket of plaster over the wall of<\/p>\n
a Manhattan rooftop. It dropped seven stories to the<\/p>\n
ground and hit and killed a police officer standing on<\/p>\n
the street below. Gil claimed that he expected the<\/p>\n
bucket to drop unceremoniously onto an unoccupied<\/p>\n
street directly below him, rather than to continue for-<\/p>\n
ward as it fell and land on the street where the police<\/p>\n
officer was positioned. To support his naive belief that<\/p>\n
objects drop straight down, Gil\u2019s attorneys attempted<\/p>\n
to introduce the testimony of a cognitive psychologist,<\/p>\n
Michael McCloskey, an expert in intuitive physics.<\/p>\n
He planned to testify that people commonly mis-<\/p>\n
understand physical laws. The trial judge did not let<\/p>\n
McCloskey testify, claiming that intuitive physics was<\/p>\n
irrelevant to the issues under contention. The jury<\/p>\n
convicted Gil of second-degree manslaughter.<\/p>\n
Judges have also disallowed expert testimony as<\/p>\n
unreliable. Richard Coons, a Texas psychiatrist, testi-<\/p>\n
fied in death penalty trials that he developed his own<\/p>\n
methodology to determine whether a defendant poses<\/p>\n
a risk of future dangerousness. (Prior to sentencing a<\/p>\n
defendant to death, juries in Texas must agree that<\/p>\n
there is a probability that he or she poses a continuing<\/p>\n
threat to society.) Coons considers an offender\u2019s crimi-<\/p>\n
nal history, attitudes toward violence, and conscience,<\/p>\n
yet he could not show that these factors have been<\/p>\n
validated by any research or that his predictions are<\/p>\n
accurate. After an appellate court deemed Coons\u2019<\/p>\n
testimony unreliable, essentially overruling a trial<\/p>\n
court judge who had admitted the expert testimony,<\/p>\n
a defense attorney quipped, \u201cIt\u2019s overdue.\u201d<\/p>\n
One clear implication of the Daubert decision is<\/p>\n
that judges must become savvy consumers of science if<\/p>\n
they are to decide which opinions qualify as<\/p>\n
\u201cscientific.\u201d Since the Daubert case, the admissibility of<\/p>\n
expert evidence has become an important pretrial issue<\/p>\n
and judges are more likely to scrutinize the reasoning<\/p>\n
and methodology underlying experts\u2019 opinions (Cecil,<\/p>\n
2005). This is probably a good thing, because jurors<\/p>\n
assume that judges carefully evaluate the evidence<\/p>\n
before admitting it at a trial, and put more weight on<\/p>\n
expert scientific evidence presented in the context of a<\/p>\n
trial than the same evidence presented outside of a<\/p>\n
courtroom context (Schweitzer & Saks, 2009).<\/p>\n
The Psychologist as a Policy<\/p>\n
Evaluator in the Law<\/p>\n
In addition to their knowledge of substantive problems,<\/p>\n
psychologists have methodological skills that they use<\/p>\n
in assessing or evaluating how well an intervention has worked. Psychologists and other social scientists have<\/p>\n
been asked so frequently in the last several decades to<\/p>\n
conduct evaluation studies that a separate subfield called<\/p>\n
policy evaluation, or evaluation research, has emerged.<\/p>\n
The policy evaluator provides data to answer ques-<\/p>\n
tions such as, \u201cI have instituted a policy; how do I<\/p>\n
know whether it was effective?\u201d Or, more laudably,<\/p>\n
\u201cI want to make a change in our organization\u2019s pro-<\/p>\n
cedures, but before I do, how do I design it so I will<\/p>\n
be able to determine later whether it worked?\u201d<\/p>\n
Psychologists working as policy evaluators might<\/p>\n
be asked whether changing the laws for teen drivers<\/p>\n
by restricting the number of passengers they can carry<\/p>\n
will reduce traffic accidents, whether the chemical<\/p>\n
castration of released rapists will reduce the rate of sex-<\/p>\n
ual violence, or whether changing from automobile<\/p>\n
patrols to foot patrols will improve relations between<\/p>\n
police and the community. The methodological skills<\/p>\n
of a psychologist as policy evaluator are essential in<\/p>\n
assessing existing programs and policies and designing<\/p>\n
innovations so that their effects can be tested.<\/p>\n
Psychologists have been involved in evaluating<\/p>\n
policies regarding the use of long-term administrative<\/p>\n
segregation in prisons. Inmates are typically placed in<\/p>\n
administrative segregation (involving 23-hour lock-<\/p>\n
down) for violating prison rules by dealing drugs,<\/p>\n
fighting, or affiliating with gangs. Despite vocal criti-<\/p>\n
cisms that such confinement exacerbates symptoms of<\/p>\n
mental illness and creates mental illness where none<\/p>\n
previously existed, there is a dearth of research on the<\/p>\n
consequences of administrative segregation.<\/p>\n
To fill this void, psychologists working as policy<\/p>\n
evaluators for the Colorado Department of Correc-<\/p>\n
tions conducted a study to determine whether (1)<\/p>\n
inmates in administrative segregation would experi-<\/p>\n
ence greater psychological deterioration than a com-<\/p>\n
parison group housed within a general population of<\/p>\n
inmates, and (2) mentally ill inmates would deterio-<\/p>\n
rate at a more rapid rate than non\u2013mentally ill inmates<\/p>\n
(O\u2019Keefe, Klebe, Stucker, Sturm, & Leggett, 2011).<\/p>\n
Study participants, all male, were housed in either<\/p>\n
administrative segregation or the general population<\/p>\n
as a function of their behavior, although general pop-<\/p>\n
ulation inmates were chosen because they were at risk<\/p>\n
of administrative segregation placement. In this way,<\/p>\n
the two groups were as comparable as possible.<\/p>\n
Inmates were evaluated at three-month intervals over<\/p>\n
a year using standardized self-report tests for constructs<\/p>\n
such as anxiety, depression, hostilitThe results were surprising: the segregated groups,<\/p>\n
as well as the mentally ill comparison group, showed<\/p>\n
elevated levels on these psychological measures when<\/p>\n
compared to community samples, but the segregated<\/p>\n
groups did not deteriorate over time as expected. In<\/p>\n
fact, the segregated offenders showed the same pattern<\/p>\n
of change over time as the comparison group, suggest-<\/p>\n
ing that change over time on these variables is not<\/p>\n
related to confinement conditions. These findings may<\/p>\n
affect future correctional policies regarding both admin-<\/p>\n
istrative segregation and general inmate populations.<\/p>\n
The Ethics of the Policy Evaluator. The psychol-<\/p>\n
ogist who evaluates the impact of proposed or exist-<\/p>\n
ing legislation and court or correctional procedures<\/p>\n
faces ethical responsibilities similar to those of the<\/p>\n
expert witness. The standard rules of scientific proce-<\/p>\n
dure apply, but because of the source of employment<\/p>\n
and payment, there are pressures to interpret results of<\/p>\n
evaluation studies in a certain way.<\/p>\n
Consider, for example, a large state correctional<\/p>\n
system that wants to improve its parole process.<\/p>\n
Correctional officials have identified a problem with<\/p>\n
releasing those eligible for parole who are heavy drug<\/p>\n
users. If released into society, they are likely to com-<\/p>\n
mit further crimes to maintain their drug habit, and<\/p>\n
are therefore likely to return to prison. Accordingly,<\/p>\n
the system seeks to introduce and evaluate an innova-<\/p>\n
tive halfway-house program for parolees with a history<\/p>\n
of narcotics addiction. It hires a policy evaluator to<\/p>\n
design a study and evaluate the effects of this innova-<\/p>\n
tion. The correctional system provides funding to<\/p>\n
carry out the study, and officials are sincerely commit-<\/p>\n
ted to its goals. Assume the psychologist concludes that<\/p>\n
the halfway house does not significantly reduce drug<\/p>\n
use by parolees. The authorities are disappointed and<\/p>\n
may even challenge the integrity of the policy evalua-<\/p>\n
tor. Yet, as scientists, program evaluators must \u201ccall<\/p>\n
\u2018em like they see \u2018em,\u201d regardless of the desirability<\/p>\n
of the outcome.<\/p>\n
Even if the program is successful, the policy<\/p>\n
evaluator faces other ethical dilemmas. To assess<\/p>\n
such an innovative program, the researcher might<\/p>\n
have to deny some parolees access to the program<\/p>\n
and place them in a \u201cstatus quo\u201d control group.<\/p>\n
The ethical dilemma becomes more critical when<\/p>\n
some potentially lifesaving innovation is being evalu-<\/p>\n
ated. But often it is only through such research meth-<\/p>\n
ods that a potentially helpful new program can be<\/p>\n
convincingly demonstrated to be effective. The Psychologist as a Forensic<\/p>\n
Evaluator in Litigation<\/p>\n
In addition to evaluating policies and programs,<\/p>\n
psychologists may be asked to evaluate individuals<\/p>\n
involved in civil and criminal cases, to report their<\/p>\n
findings to a judge, and on occasion, to testify about<\/p>\n
the results in court. Forensic evaluators assess matters<\/p>\n
such as<\/p>\n
\u25a0 The competence of a defendant to proceed with<\/p>\n
adjudication of charges (often called \u201ccompetence<\/p>\n
to stand trial,\u201d although most criminal charges<\/p>\n
are adjudicated through plea bargaining rather<\/p>\n
than trial)<\/p>\n
\u25a0 The mental state of a defendant at the time of<\/p>\n
an alleged offense (often called \u201csanity at the time<\/p>\n
of the offense\u201d)<\/p>\n
\u25a0 The degree of emotional or brain damage suffered<\/p>\n
by a victim in an accident<\/p>\n
\u25a0 The effects on a child of alternative custody<\/p>\n
arrangements after divorce<\/p>\n
\u25a0 The risk of future violent or otherwise criminal<\/p>\n
behavior<\/p>\n
\u25a0 The prospects for a convicted defendant\u2019s reha-<\/p>\n
bilitation in prison or on probation<\/p>\n
There are two different ways that mental<\/p>\n
health professionals become involved in litigation as<\/p>\n
forensic evaluators: they are either court appointed<\/p>\n
or hired by one of the parties involved in the liti-<\/p>\n
gation (defense, prosecution, or plaintiff). Serving<\/p>\n
in the court-appointed role involves receiving an<\/p>\n
order from the judge authorizing the mental health<\/p>\n
professional to evaluate a given individual for a spe-<\/p>\n
cific purpose. The judge may also specify additional<\/p>\n
considerations, such as how the results are to be com-<\/p>\n
municated. There is typically an expectation that the<\/p>\n
resulting forensic evaluation will be considered by the<\/p>\n
judge without being introduced by either side.<\/p>\n
Forensic evaluators for one of the parties involved<\/p>\n
in the litigation have a different expectation: That<\/p>\n
particular party may control when (and whether)<\/p>\n
the forensic assessment findings are actually intro-<\/p>\n
duced as evidence in the case. Some referrals for<\/p>\n
forensic assessment come from attorneys who autho-<\/p>\n
rize the evaluations without resorting to any kind of<\/p>\n
court authority. (This kind of right is usually associ-<\/p>\n
ated with the defense in a criminal prosecution; the<\/p>\n
prosecutor cannot request a forensic mental health<\/p>\n
essment unless it is approved by the court\u2014and<\/p>\n
therefore known to the defense.) These tasks will be<\/p>\n
discussed in much more detail in Chapters 10 and 11<\/p>\n
of this book. They are also described in detail else-<\/p>\n
where (Heilbrun et al., 2009; Melton et al., 2007).<\/p>\n
The Ethics of the Forensic Evaluator. The ethical<\/p>\n
considerations associated with the role of forensic<\/p>\n
evaluator are fairly formal and specifically described<\/p>\n
in several documents. In addition to the ethical prin-<\/p>\n
ciples disseminated by the APA (APA, 2012a), two<\/p>\n
other sets of ethical guidelines affect the practice of<\/p>\n
forensic evaluators. Neither is \u201cenforceable\u201d in the<\/p>\n
sense that the APA principles are. Nonetheless, both<\/p>\n
serve as important sources of authority, and may affect<\/p>\n
the judgments of courts regarding the admissibility<\/p>\n
and weight of forensic assessment evidence. These<\/p>\n
two documents are the Specialty Guidelines for<\/p>\n
Forensic Psychologists (APA, 2012b) and the Guide-<\/p>\n
lines for Child Custody Evaluations in Family Law<\/p>\n
Proceedings (APA, 2010).<\/p>\n
Among the three documents, there is substantial<\/p>\n
emphasis on providing evaluations that are (1) clear in<\/p>\n
their purpose; (2) conducted by individuals who are<\/p>\n
competent by virtue of their education, training, and<\/p>\n
experience; (3) respectful of appropriate relationships<\/p>\n
(and that avoid multiple relationships, such as both<\/p>\n
forensic evaluator and therapist, in the same case);<\/p>\n
(4) provide the appropriate level of confidentiality<\/p>\n
consistent with circumstances and the applicable<\/p>\n
legal privilege; (5) use methods and procedures that<\/p>\n
are accurate, current, and consistent with science<\/p>\n
and standards of practice; and (6) communicate<\/p>\n
appropriately.<\/p>\n
Like other expert witnesses, forensic evaluators<\/p>\n
have an obligation to be objective in their assessments<\/p>\n
and reporting, yet may be tempted to favor the side<\/p>\n
that has retained them. This concern is illustrated by<\/p>\n
a study of how pairs of independent forensic psycho-<\/p>\n
logists, retained by opposing attorneys, evaluated a<\/p>\n
common individual. Despite using a standardized<\/p>\n
diagnostic test for psychopathy, the psychologists<\/p>\n
tended to rate the individual in a manner favorable<\/p>\n
to the side that retained them (Murrie, Boccaccini,<\/p>\n
Johnson, & Janke, 2008). This sympathy may not<\/p>\n
even be conscious; instead, the psychologist may sim-<\/p>\n
ply reach conclusions that are motivated by subtle<\/p>\n
partisan allegiance to the client. For this reason,<\/p>\n
adherence to the principles contained in the ethical<\/p>\n
guidelines is of paramount importance. The Psychologist as a Consultant<\/p>\n
in Litigation<\/p>\n
The final role for psychologists in the law is that of<\/p>\n
consultant. The field of trial consulting provides<\/p>\n
one example of this role for psychologists working<\/p>\n
in the legal arena (see generally Wiener & Bornstein,<\/p>\n
2011). Social scientists who began this work in the<\/p>\n
1970s used so-called scientific jury selection proce-<\/p>\n
dures (further described in Chapter 12) to assist defense<\/p>\n
lawyers in highly politicized trials resulting from anti-<\/p>\n
war activities in the United States. Since then, these<\/p>\n
techniques have been refined and expanded. The<\/p>\n
national media devoted extensive coverage to the use<\/p>\n
of trial consultants in the celebrity-status trials of<\/p>\n
Martha Stewart and O. J. Simpson, and research on<\/p>\n
community attitudes was influential in the 2001 con-<\/p>\n
viction of a former Ku Klux Klansman for the 1963<\/p>\n
bombing of a Birmingham, Alabama church. (We<\/p>\n
describe this case in more detail in Chapter 13.)<\/p>\n
Today the field of trial consulting is a booming<\/p>\n
business and involves far more than jury selection.<\/p>\n
Trial consultants also conduct community attitude<\/p>\n
surveys to document extensive pretrial publicity or<\/p>\n
to introduce findings as evidence in trials involving<\/p>\n
discrimination or trademark violation claims (Wiener,<\/p>\n
2011; Wingrove, Korpas, & Belli, 2011). They test<\/p>\n
the effectiveness of demonstrative evidence (Richter &<\/p>\n
Humke, 2011), provide guidance to attorneys seek-<\/p>\n
ing damage awards (Bornstein & Greene, 2011a),<\/p>\n
and prepare witnesses to testify (Stinson & Cutler,<\/p>\n
2011).<\/p>\n
There is no expectation of impartiality in any of<\/p>\n
these roles, as there would be for psychologists acting<\/p>\n
as basic scientists, applied scientists, policy evaluators,<\/p>\n
or forensic evaluators. Nor is there an expectation that<\/p>\n
the consultant must present information in a balanced<\/p>\n
way. However, the psychologist must still provide the<\/p>\n
attorney with good information in order to promote<\/p>\n
more effective performance in litigation. How the<\/p>\n
attorney decides to use such information is within<\/p>\n
that attorney\u2019s discretion.<\/p>\n
Critics have argued that these techniques essen-<\/p>\n
tially rig the jury (Kressel & Kressel, 2002) and create<\/p>\n
a perception that psychologists can manipulate the<\/p>\n
trial process (Strier, 2011). But at least in the realm<\/p>\n
of jury selection, it is difficult to determine whether<\/p>\n
scientific jury selection is more effective than tradi-<\/p>\n
tional jury selection. Cases that employ scientific<\/p>\n
jury selection techniques differ in many ways fromcases that do not, and \u201csuccess\u201d is hard to define<\/p>\n
(Lieberman, 2011). (Does a low damage award or<\/p>\n
conviction on a less serious charge connote success?<\/p>\n
Perhaps.) Consultants suggest that they are simply<\/p>\n
borrowing techniques commonly used in politics<\/p>\n
and advertising and bringing them into the court-<\/p>\n
room. Politicians hire people to help them project a<\/p>\n
better image, and advertisers try to enhance the ways<\/p>\n
that retailers connect with consumers. Shouldn\u2019t law-<\/p>\n
yers be able to do the same? Consultants also argue<\/p>\n
that in an adversarial system, attorneys should be able<\/p>\n
to use every tool available to them.<\/p>\n
The Ethics of the Consultant in Litigation. As<\/p>\n
we noted earlier, when the psychologist becomes a<\/p>\n
consultant for one side in the selection of jurors,<\/p>\n
there may be ethical questions. Just how far should<\/p>\n
the selection procedures go? Should jurors have to<\/p>\n
answer consultants\u2019 intrusive questions about their<\/p>\n
private lives? Should consultants be able to sculpt<\/p>\n
the jury to their clients\u2019 advantage? Do these techni-<\/p>\n
ques simply constitute the latest tools in the attorney\u2019s<\/p>\n
arsenal of trial tactics? Or do they bias the proceedings<\/p>\n
and jeopardize the willingness of citizens to partici-<\/p>\n
pate in the process? These questions deal with fairness,<\/p>\n
and scientific jury selection may conflict with the way<\/p>\n
some people interpret the intent of the law.<\/p>\n
Returning to the advertising analogy, are psychol-<\/p>\n
ogists who work for an advertising agency unethical when they use professional knowledge to encourage<\/p>\n
consumers to buy one brand of dog food rather than<\/p>\n
another? Many of us would say no; the free-enterprise<\/p>\n
system permits any such procedures that do not falsify<\/p>\n
claims. This example is analogous to jury selection<\/p>\n
because rival attorneys\u2014whether they employ trial<\/p>\n
consultants or not\u2014always try to select jurors who<\/p>\n
will sympathize with their version of the facts. Since<\/p>\n
the adversarial system permits attorneys from each<\/p>\n
side to eliminate some prospective jurors, it does<\/p>\n
not seem unethical for psychologists to assist these<\/p>\n
attorneys, as long as their advocacy is consistent<\/p>\n
with the law and the administration of justice. The<\/p>\n
same can be said about consultants retained by attorneys<\/p>\n
to provide information to enhance the presentation<\/p>\n
of a case.<\/p>\n
When psychologists become trial consultants,<\/p>\n
they also subscribe to the ethical code of the attor-<\/p>\n
neys, who, after all, are in charge of the trial prepara-<\/p>\n
tion (Stolle & Studebaker, 2011). The Ethics Code of<\/p>\n
the American Bar Association (2010) admonishes its<\/p>\n
members to defend their clients to the best of their<\/p>\n
abilities, short of lying or encouraging lying. Every<\/p>\n
litigant\u2014whether a defendant or a plaintiff\u2014regard-<\/p>\n
less of the heinousness of the crime or the nature of<\/p>\n
the evidence presented, is entitled to the best legal<\/p>\n
representation possible, including the use of psycho-<\/p>\n
logical techniques to assess the relative favorability of<\/p>\n
prospective jurors and to enhance case presentation.<\/p>\n
S U M M A R Y<\/p>\n
1. Why do we have laws, and what is the psychological<\/p>\n
approach to studying law?<\/p>\n
Laws are human creations whose major purposes<\/p>\n
are the resolution of conflict and the protection<\/p>\n
of society. As society has changed, new conflicts<\/p>\n
have surfaced, leading to expansion and revision<\/p>\n
of the legal system. A psychological approach<\/p>\n
focuses on individuals as agents within a legal<\/p>\n
system, asking how their internal qualities (per-<\/p>\n
sonality, values, abilities, and experiences) and<\/p>\n
their environments, including the law itself, affect<\/p>\n
their behavior.<\/p>\n
2. What choices are reflected in the psychological<\/p>\n
approach to the law?<\/p>\n
Several basic choices must be made between pairs<\/p>\n
of options in the psychological study of the law. These options are often irreconcilable because<\/p>\n
each is attractive, but both usually cannot<\/p>\n
be attained at the same time. The choices<\/p>\n
are (1) whether the goal of law is achieving<\/p>\n
personal freedom or ensuring the common good,<\/p>\n
(2) whether equality or discretion should be the<\/p>\n
standard for our legal policies, (3) whether the<\/p>\n
purpose of a legal inquiry is to discover the truth<\/p>\n
or to provide a means of conflict resolution, and<\/p>\n
(4) whether it is better to apply the methods of<\/p>\n
law or those of science for making decisions.<\/p>\n
3. How do laws reflect the contrast between the due<\/p>\n
process model and the crime control model of the<\/p>\n
criminal justice system?<\/p>\n
The decade of the 1960s represented an era in<\/p>\n
which due process concerns were paramount an<\/p>\n
court decisions tended to favor rights of the<\/p>\n
individuals, particularly those suspected of crimes,<\/p>\n
over the power of the police and law enforce-<\/p>\n
ment. Since then, the crime control model,<\/p>\n
which seeks to contain or reduce criminal activ-<\/p>\n
ity, has been favored by many. But some of the<\/p>\n
harsh policies and penalties consistent with this<\/p>\n
perspective, including \u201cthree-strikes\u201d laws, have<\/p>\n
resulted in large increases in prison populations<\/p>\n
and little reduction in rates of reoffending. The<\/p>\n
recession is causing legislators and judges to<\/p>\n
consider community-based alternatives that may<\/p>\n
control crime more effectively.<\/p>\n
4. What are five roles that psychologists may play in<\/p>\n
the legal system, and what does each entail?<\/p>\n
Five possible roles are identified in this chapter:<\/p>\n
the psychologist as (1) a basic scientist, interested in knowledge related to psychology and law forits own sake; (2) an applied scientist, who seeks<\/p>\n
to apply basic research knowledge to a particular<\/p>\n
problem in the legal system (a psychologist<\/p>\n
serving as an expert witness is an applied scientist<\/p>\n
in the law); (3) a policy evaluator, who capita-<\/p>\n
lizes on methodological skills to design and<\/p>\n
conduct research that assesses the effects of pol-<\/p>\n
icies and program changes in the legal system;<\/p>\n
(4) a forensic evaluator, who is either appointed<\/p>\n
by the court or retained at the request of one<\/p>\n
of the parties in the litigation to perform a<\/p>\n
psychological evaluation of an individual related<\/p>\n
to a legal question; and (5) a consultant, who<\/p>\n
works on behalf of a party or position in liti-<\/p>\n
gation. Each role entails its own set of ethical<\/p>\n
dilemmas.<\/p>\n","protected":false},"excerpt":{"rendered":"
Choices and Roles The Importance of Laws Laws as Human Creations Laws Help Resolve Conflict and Protect the Public The Changing of Laws The Psychological Study of Law Basic Choices in the Psychological Study of the Law The First Choice: Rights of Individuals versus the Common Good BOX 1.1: THE CASE OF THE WESTBORO BAPTIST […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[1],"tags":[10],"class_list":["post-80447","post","type-post","status-publish","format-standard","hentry","category-research-paper-writing","tag-writing"],"_links":{"self":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/80447","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/comments?post=80447"}],"version-history":[{"count":0,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/posts\/80447\/revisions"}],"wp:attachment":[{"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/media?parent=80447"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/categories?post=80447"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/papersspot.com\/blog\/wp-json\/wp\/v2\/tags?post=80447"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}