De facto departures from insanity instructions

De facto departures form the law (de jure) have been noted in such areas as jury revolts, jury nullification, extralegal concerns, and insanity. The thesis developed here is that (a) when such departures have occurred in insanity cases, acritical rather thaninstructive view of jurors has prevailed; (b) this critical view impedes efforts to empirically understand jurors' constructs of insanity and thereby restricts considered legal changes; (c) the Insanity Defense Reform Act of 1984 is illustrative of such narrowly considered changes, and, based on empirical findings, this act fails to instruct jurors or produce verdicts different from its predecessors; and (d) based on empirical findings, the common sense construals ofsane andinsane do emerge, complex though they be. Suggestions toward an empirically derived common law test of insanity, one that harmonizes legal, psychological, and common sense perspectives, are offered.This article is based in part on a paper, De Jure and De Facto Insanity Tests, presented at the American Psychological Association's Annual Convention, August 14, 1988, Atlanta, Georgia.     

Death penalty attitudes and conviction proneness

Attitudes toward the death penalty are consistently predictive of jurors' verdicts in criminal trials. Two studies were conducted to find out why. In Study 1, eligible jurors viewed a videotape showing conflicting testimony by a prosecution and defense witness in an assault case. Death-qualified subjects (those permitted to serve on capital juries) interpreted testimony in a manner more favorable to the prosecution than excludable subjects (those excluded from serving on juries in capital cases due to their opposition to the death penalty), suggesting that differing interpretations of evidence may mediate the relationship between attitudes toward the death penalty and verdicts. In Study 2, the same jurors indicated their reactions to a number of hypothetical situations in which a jury had convicted an innocent defendant or acquitted a guilty one. Death qualified subjects expressed less regret concerning erroneous convictions and more regret concerning erroneous acquittals than excludable subjects. Theoretical interpretations of this pattern of results suggest that death qualified subjects may have a lower threshold of conviction than excludable subjects; thus the relationship between attitudes toward the death penalty and verdicts may also be mediated by differing thresholds of conviction.During the course of this research, William C. Thompson was supported, in part, by a National Science Foundation graduate fellowship.     

Split-brain madness

With facts and metaphors regarding differential functioning of our two hemispheres proliferating faster than our understanding, the potential for a new insanity defense to emerge to fit certain Jekylland-Hyde-like defendants clearly exits. And with psychologists of varying stripes entering the courtroom with greater frequency and in newer capacities, the dangers of entanglement and error grow. This paper analyzes a split-brain insanity defense on the grounds of legal, logical, psychological, and current neuropsychological evidence. In addition, the likelihood, import, and place of this defense in the historical context of insanity defenses is examined. The concept of personal responsibility, which has been both asserted and denied by experts in split-brain or split-psyche cases, is tried; and a closing summary to the jury is offered.     

Measuring the Convergence/Divergence of “Serious Crime” Arrest Rates for Males and Females: 1960–1995

It is now almost a quarter of a century since Adler (1975) and Simon (1975)stimulated a debate about the convergence of crime rates for men andwomen. The ensuing debate generated literally dozens of papers. Given theexistence of a series that now extends from 1960 to 1995, this papersuggests an appropriate way to examine the convergence hypothesis usingtime series techniques. These techniques take into consideration the effectsof the following factors: (a) random shocks orinnovations, (b) the potentially lasting effects of suchinnovations, and (c) the autocorrelation that time series oftenexhibit. Using time series techniques on annual data, we examine trends inthe arrest rates for males and females for six Part I crimes (homicide,robbery, aggravated assault, burglary, larceny, and motor vehicle theft)for the years 1960 through 1995. We test for convergence, divergence, notrend, and a special condition of equilibrium between series calledcointegration.     

Forfeiture and money laundering laws in the United States

Today Europe is faced increasingly with the phenomenon of organized crime, creating problems similar to those the United States faced as early as a decade ago. American forfeiture and money laundering laws provide the state with sweeping powers for use in its efforts to combat organized crime. Although study of these instruments might inspire European lawmakers to adopt similar ones, the instruments themselves carry a societal price tag that cannot be ignored. Classical principles limiting the reach of the criminal law (and the powers of its enforcement apparatus) and in a broader sense the liberal concept of the fragmentary nature of the criminal law have largely been abandoned by lawmakers in the area of organized crime. Thus, modern American forfeiture and money laundering laws have lowered the standards of protection against state intrusion into citizens' basic rights despite the lack of sufficient empirical proof that their investigative and punitive powers are efficient in skimming profits and deterring further crime.     

Charge reduction: An analysis of prosecutorial discretion in burglary and robbery cases

Although a substantial number of researchers have studied charge reductions taking place within the context of guilty plea negotiations, few have focused on estimating the determinants of charge reductions taking place at the initial screening decision. The prosecutor's decision to reduce original felony charges to a misdemeanor has serious social, legal, and economic consequences for the suspect. This paper presents a model of the variables affecting the likelihood of such a reduction in burglary and robbery offenses. Drawing from Littrell's principled charging perspective and earlier research on labeling, the analysis involves estimating logistic regression equations specifying both main and interaction effects of the suspect's gender and race and variables related to suspect character, case seriousness, and legal seriousness. Partial support is found for Littrell's perspective.     

The Effects of Motive Information and Crime Unusualness on Jurors' Judgments in Insanity Cases

This study investigated the effects of motive information and crime unusualness on mock jurors' judgments in two homicide cases in which the defendant pleaded insanity. Undergraduates (N = 371) read case information and rendered a verdict, estimated the probability that the defendant was insane, and made additional judgments about the defendant's mental state. The defendant was more likely to be judged insane if the crime was oddly committed rather than committed in a typical manner. Prosecution motive information also affected judgments; the defendant was considered more sane if the prosecution presented evidence of a strong, reasonable motive. Evidence of a crazy, unreasonable motive, presented by the defense, caused jurors to see the defendant in one of the cases as more insane.     

Precedent Externality, Network Effect, and the Possible Inefficiency of the Evolution of Laws

Using the traditional scenario of tort conflict as an example, I argue that the marginal precautionary costs of injurers and victims are not constant, as was assumed by most previous researchers. The precedent of a liability rule has some natural externality on the precaution technology, and hence marginal cost, faced by future agents involved in torts. The adoption of legal rules therefore has a network effect, meaning that the present prevalent adoption of one rule increases the probability of its future adoption. Treating the dynamic evolution of legal rules as a random process, we are able to apply an established result in the literature of network economies to conclude the path-dependence, non-predictability, and potential inefficiency concerning the final legal rule to which the dynamics converge.     

Psychology,law, and the black community

Summary The present paper presented key applications of psychology and the law to the black community, embracing both civil and criminal law and legislation. The breadth of its focus preluded a more in-depth treatment of other areas relevant to black people which include issues related to psychiatric emergencies and involuntary hospitalization, child custody, and right-to-treatment litigation in prison and mental health facilities. In focusing attention on these applications and areas for activity, hopefully, I have not presented an unrealistic depiction of a responsive, socially sensitive, legal system capable and willing to exercise its powerful tools in the interest of the black community. To the contrary, there is considerable literature that identifies the historic role of the legal system in the enactments of laws to institutionalize and cement slavery, its failure to aggressively protect constitutional and civil rights of blacks, in imposing penalties differentially to blacks and whites in the criminal justice system, and more recently, conspiracies of law enforcement officials to deprive blacks of basic civil rights (Bell, 1975; Burns, 1973; Higgenbotham, 1973). The legal system, rather than being an effective instrument for justice and positive social changes, has often been a major source of racism. Thus, any meaningful attempts by lawyers or behavioral scientists in the interest of black people cannot ignore the racism that is embedded in the fabric of the legal profession and the behavioral sciences. Particular aspects of the law with significant social-psychological dimensions are: the cultural inertia, the archaicness of the law due to its roots in English common-law, historic and contemporary racism, conservatism associated with the principle of stare decisis, judicial elitism, and the substitution of administrative and judicial discretion for overt racism. Thus, in order for the legal system, or the field of psychology, to be reponsive to the needs of blacks and other oppressed groups, they must eradicate racism and injustice in their own ranks.Traditionally law has functioned as the hand maiden of the propertied class in our society. So it was to be expected that lawyers in the legislative halls, lawyers on the bench and lawyers in the executive branch of government would combine their talents to perpetuate by law this peculiarly American doctrine of racism predicated upon a claimed color inferiority.     

Trade Secrets, Firm-Specific Human Capital, and Optimal Contracting

Trade secrets are innovations jointly produced by firms and employees that are generally not protected by patents. They are commonly protected within the framework of labor contracts, where an obligation of confidentiality is imposed upon the employee. Specifically this obligation applies to the employee even after he has left the employer for a period of time determined in the contract, known as a cooling off period. Often employees are prohibited not only from revealing trade secrets, but also from utilizing their specific human capital developed at the original place of employment in competitor firms during this period. Their specific human capital is in effect inseparable from the trade secret. Failure to protect the trade secret will result in its revelation and its becoming public and hence worthless for the innovator. The inability of an employee to reveal trade secrets and utilize his specific human capital after leaving his place of employment imposes costs and losses upon him. Some form of compensation will be paid for these contingent losses within the employment contract. Employers know that the longer the cooling off period imposed upon employees, the greater employees must be compensated for this in the contract. Longer cooling off periods thus cost the employer more, but also enable him to earn greater rents from the innovation itself. In this paper profit-maximizing periods of trade secret protection are derived, based on these two countervailing factors, and comparative statics exercises are performed. How the selection of profit-maximizing periods of trade secret protection when the incidence of resignation is itself affected by contract parameters and incentives is explored.     

Implicit theories of criminal responsibility

Three questions relevant to insanity decisions were examined: (a) What informational cues are weighed most heavily in the attribution of criminal responsibility? (b) How do verdict forms influence these attributions? And (c) How do individuals' beliefs about insanity and responsibility influence decision making? Undergraduate subjects (n=181) responded to vignettes portraying an act by a mentally disordered defendant. Psychiatric jargon was avoided, so that attributions were not a function of diagnostic terminology. It was found that, under the traditional scheme of not guilty by reason of insanity (NGRI) vs. guilty, level of mental disorder (schizophrenia vs. personality disorder) was the primary determinant of insanity decisions. Also, insanity judgments were more likely to be made for acts performed without planful intentionality. Under the alternative scheme of NGRI vs. guilty but mentally ill (GBMI) vs. guilty, mental disorder still controlled NGRI verdicts; a bizarre act increased the likelihood of a GBMI over a guilty verdict; and the GBMI verdict option reduced markedly the proportion of psychotic defendants found NGRI and the proportion of personality disordered defendants found guilty. There were no significant differences between diagnostic groups in the likelihood of being found GBMI. Most subjects preferred to utilize the GBMI option as a compromise verdict even in the face of very severe mental illness. Attitudinal data revealed considerable variation in agreement with the classic moral logic of the insanity defense and accounted for a significant amount of the variance in insanity decisions. The implications for both social policy and future research are discussed.     

A comparison of insanity defense standards on juror decision making

Following the Hinckley acquittal, 17 states and the federal government made changes to the insanity defense, including revising the standard, reassigning the burden of proof, and altering the standard of proof. Two studies were conducted to determine whether the specific insanity standard (including the assignment of burden of proof and standard of proof) employed had a significant effect on mock jurors' verdicts. Participants' comprehension of insanity defense instructions was measured and the factors jurors used to decide whether to find the defendant not guilty by reason of insanity (NGRI) were also assessed. Participants' comprehension of insanity defense standards was very low. When asked to identify the factors they considered important in determining whether to find a defendant NGRI, only three elements of insanity defense standards were identified as significant. The results may have important implications for policy decisions regarding the insanity defense.     

Personalized or bureaucratized justice in legal services: Resolving sociological ambivalence in the delivery of legal aid for the poor

This paper examines and tests some of the claims about the professional autonomy of attorneys working in a bureaucratic environment. Following an analysis of the concept of professionalism across various types of attorney practices, data are offered to explore how attorneys who provide legal services for the poor resolve the potential conflict between bureaucratic demands and personal or professional autonomy. The data, which consist of attorney time sheets covering some 2284 separate legal tasks as well as in-depth personal interviews with 23 attorneys, reveal some difference between actual practice routines and perceived personal autonomy. Implications of this for the delivery of legal service are discussed. The paper concludes that although the conflicting demands of legal services practice might lead to sociological ambivalence, as long as the attorneys do not perceive themselves as bureaucratic service deliverers but as autonomous professionals, there is little manifest ambivalence. Developing an adaptive strategy to avoid sociological ambivalence, attorneys see themselves as individual service providers, personalizing the justice they deliver.A lawyer is a lawyer-but only to a pointAn earlier version of this paper was presented to the Midwest Political Science Association Annual Meeting, Milwaukee, Wisconsin, April 28–May 2, 1982.     

Social sciences and the evolving concept of corruption

The term corruptio appears in many languages, but behind it lie several contrasting strands of thought and language. Current political usages of corruptio--emphasizing bribery, which in turn is just one of several families of ideas to which the term has variously been attached--date from the late 18th or early 19th century, have been strongly influenced by Anglo-Saxon legal thought, and may be traced to Roman roots. But French lexicographers developed a richer and more diverse vocabulary to encompass the crimes of civil servants and judges in addition to those of the people who sought to influence them. Religion, and in particular offices within the Church, also strongly influenced the ideas and vocabulary of corruption. Ultimately, corruptio can be said to have Biblical origins and a core meaning centered around injustice. The complexity and richness of the idea of corruption, as viewed from that perspective, in often lost in the narrower and more technical usages that dominate contemporary debate and analysis.     

Do Standards of Proof Affect Decision Making in Child Protection Investigations?

Every state investigates child maltreatment reports. Some states use a lower standard of proof of some credible evidence (or similar terms) to substantiate cases after investigation. Other state legislatures prescribe a higher standard of preponderance of the evidence. Legislatures use these terms of art as a matter of policy to control the risk of false-positive errors. A lower rate of substantiation should follow from a higher standard of proof. There was no statistically significant difference in the percent of substantiated and the percent of unsubstantiated cases in the two groups of states. If state policy to reduce the false-positive error rate is to be effective, something more is required than simply manipulating the verbal formula in legislation.     

Competitive Distortions in EU Environmental Legislation: Inefficiency versus Inequity

In the European Union a number of emission standards for stationary sources have been harmonised. For many years the legal basis has been article 100 EEC (renumbered as article 94 by the Amsterdam Treaty), which calls for harmonisation to eliminate and prevent distortions of competition in the common market. In the paper, two views of distortion of competition are distinguished: either as an inefficiency in the allocation of resources or as an inequity of starting conditions. At first sight, the inequity interpretation seems to have been the primary motive for harmonising source emission standards. However, a closer investigation reveals that actual harmonisation policies also partly reflect the inefficiency view. Implicitly, the harmonisation policies of the EU may trade off efficiency and equity.     

The social construction of criminal responsibility and insanity

This study examines the effects of judicial instructions (traditional American Law Institute [ALI] not guilty by reason of insanity [NGRI] instructions contrasted with ALI instructions supplemented with the guilty but mentally ill [GBMI] alternative) and case information cues (delusional content and planfulness) on student and community subjects' attributions of responsibility. GBMI instructions substantially reduced the probability of NGRI and guilty verdicts in response to vignettes portraying highly psychotic defendants and altered the pattern of variability in responsibility construal ratings. Variation in delusional content cues (self-defense versus non-self-defense) influenced ratings of criminal appreciation but did not affect the verdict distributions. Less planfully commited crimes resulted in higher proportions of insanity verdicts. However, individual differences in responsibility construals of the defendant and in attitudes toward the insanity defense were stronger predictors of verdicts than the design variables, suggesting that individual differences in social-moral cognition are at least as relevant to the attribution of responsibility as are case cues or legal frames of reference. Contrary to previous studies,Witherspoon death penalty attitudes were not related to verdicts, but people without conscientious scruples toward the death penalty were more likely to render guilty verdicts.     

Undergraduate Education in Legal Psychology

The purpose of this article is to describe ways that legal psychology can be introduced into the undergraduate curriculum. The extent to which undergraduate psychology and law courses are currently a part of the curriculum is described, and a model is proposed for coursework in a Psychology Department that might adequately reflect coverage of the legal area. The role of legal psychology in interdisciplinary programs and Criminal Justice departments is discussed. Sources for teaching aids and curricular materials are described.     

Economics of discriminatory sentencing

The legal and social professions have long been concerned with the problem of whether the fact that those incarcerated in prison tend to be drawn from the ranks of the poor unemployed and low social status is indicative of willful discrimination against the underprivileged. In this paper we apply the traditional analytical tools of economics to develop the conditions required for an efficient tradeoff between the probability of conviction and the length of prison sentence for both rich and poor. We show that the generally accepted approach of equal punishment for equal crimes tends to overdeter the rich and underdeter the poor, which results in a gross overrepresentation of the poor in the prison population. In order to eliminate this overrepresentation, the poor must receive a more severe sentence than the rich for an equivalent crime. This appears to contradict normal definitions of equity and we address this issue. We also show that an increase in the total crime budget when used efficiently must always result in longer sentences but can, under appropriate conditions, require a lower probability of apprehension.