The Daily Digest, 3/23/11

Sometimes, even judges suffer from the “CSI” effect. The district court judge in the case today may have missed a few important days of his genetics class in high school or in college. Perhaps they didn’t teach genetics in the late 1960’s?

The Defendant in this case, convicted of possession of child pornography, was given an “unreasonable” sentence based on the judge’s invented genetic theory that the defendant’s incorrigible genes made him act the way he did, and that there was nothing he could do about it. If for nothing other than entertainment value, I highly recommend reading the Second Circuit’s slap-down. They took the extraordinary measure of vacating the sentence and remanding the case to a different judge. Yikes.

Crazy Genetic Theory, Sentencing, Double-Edged Sword
U.S. v. Cossey, 632 F.3d 82 (2d Cir. 2011)
Petitioner was charged with two counts of possession of child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). Petitioner pleaded guilty to Count One for possessing child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B), pursuant to a Plea Agreement. The Plea Agreement reserved his right to appeal any sentence greater than fifty-seven months. The district court sentenced Petitioner to seventy-eight months’ imprisonment, a life term of supervised release, and a mandatory assessment of one hundred dollars. On appeal, Petitioner asserted the sentence imposed by the district court was procedurally and substantively unreasonable. Petitioner’s principal allegation on appeal, which was not presented at sentencing, is that the court relied on an idea that he would re-offend, based on a notion that Petitioner is genetically predisposed to view child pornography. Petitioner’s allegations concerning the court’s improper consideration of his genetic predisposition to re-offend, and his objections generally to the court’s reliance on his potential to re-offend, were reviewed for plain error. In determining Petitioner’s sentence, the district court rejected two separate psychological evaluations that had found Petitioner was at a low to moderate risk to re-offend, explaining that “[t]he opinions of the psychologists and the psychiatrists as to what harm you may pose to those children in the future is virtually worthless here.” The court predicted that some fifty years from now Petitioner’s offense conduct would likely be discovered to be caused by “a gene you were born with. And it’s not a gene you can get rid of.” The court expressed its belief that although Petitioner was in therapy, it “can only lead, in my view, to a sincere effort on your part to control, but you can’t get rid of it. You are what you’re born with. And that’s the only explanation for what I see here.” After explaining its personal views regarding Petitioner’s conduct and the reasons behind it, the court concluded “[f]or all of those reasons … I am persuaded that the advisory guideline here, at the minimum, is the appropriate sentence.” On appeal, the Second Circuit found it “impermissible for the court to base its decision of recidivism on its unsupported theory of genetics . . . Where a district court relies on its own scientific theories of human nature to sentence a defendant, as it does here, a finding of plain error is warranted.” While a defendant’s propensity to re-offend is a proper consideration under the sentencing guidelines, the court below relied on this single factor, which it linked to its unsupported belief that Petitioner was prevented from controlling his behavior due to a genetic inability to do so. Finding plain error, the Second Circuit vacated the sentence and remanded the case “to a different judge” because this was one of those “rare instance[s] in which the judge’s fairness or the appearance of the judge’s fairness is seriously in doubt.”

About Nita A. Farahany

Professor of Law and Philosophy, Professor of Genome Sciences and Policy
This entry was posted in Behavioral Genetics, Criminal and tagged , , . Bookmark the permalink.

18 Responses to The Daily Digest, 3/23/11

  1. Tamara Piety says:

    I have to agree with Ms. Love, you don’t have to know anything about genetics to know that in last few decades a lot of what we thought we “knew” about behavior has changed and that predictions of future dangerousness are notoriously unreliable. See Barefoot v. Estelle (although note that the Supreme Court accepted Dr. Grigson’s testimony in this case observing that petitioner didn’t allege that such testimony was always wrong, just 2/3rds of the time so no error in admitting!) Moreover, the judge’s observations that those whose sexual attractions run to children have a greater propensity to re-offend is not completely without foundation (even if the theory he offered is off base) because this notion is enshrined in the Federal Rules of Evidence in Rule 413, 414 & 415. That presumption is probably empirically suspect and thus the rules as well. And I think that the 2nd Circuit’s decision to reverse and remand was correct. But the the notion that the district court was biased (as opposed to just wrong) seems somewhat unfair given the similar presumption reflected in those rules. (And I find the one comment about Frye totally baffling since Frye was not a SCOTUS case and in any event has been replace by Daubert. Strange.)

  2. MetOpera says:

    Look, obviously pedophilia and attraction to child pornography has a very high chance of being at least partially genetic. However, those are thoughts, which are very different from actions – he should not be punished for thoughtcrimes, when he appears likely to be able to control those thoughts and not let them lead to action (according to experts).

  3. Scott says:

    @Mark- First of all,
    >District judge offered a supposedly poor genetic theory to explain a truth which is obvious to everyone but child molesters and the 2nd Circuit Court of Appeals
    It’s not non-obvious to the 2nd Circuit. They didn’t vacate his conviction. They didn’t strike him from the sex offender list. They didn’t give him a medal of honor and a bottle of vaseline and his own personal bench in the playground. They sent his case back to a judge who wouldn’t fuck around to the point where the appeals court wouldn’t have to send the case back to a different judge.
    I love how your proposition is that the system is somehow broken when a sentencing determination should actually be based on demonstrable facts rather than the whims of a judge. It sounds to me like you’re just setting up your soapbox with a very flawed understanding of the underlying reality of the case, and not really interested in using real facts to back up your position, which, I mean, is valid, but seriously- contribute to your cause and stop jerking your knee every time a homeless guy walks near a public park.

  4. quift says:

    Sorry, why are people so afraid to admit that pedophilia is at least partially hereditary? The same reluctance seems to occur in intelligence, abuse, etc.? That’s not to say that is a “gene” that *makes* anyone perform an act. Still, heritable predispositions are a reality–and a plainly obvious one. How those pre-dispositions play out in any given situation is another story.

  5. Sardondi says:

    Yeah, there’s no way the judge knew what the defendant’s genetic sequence was. And the necessarily limited studies are all over the place about whether there is a genetic basis for crime in general or pedophilia in particular.

    But you’re not really saying we have no way of determining whether pedophiles are going to re-offend, are you? Because you know they do, more than any other offender, and by a large margin. You cannot deny the reality that pedophiles, for whatever reason, are bent to such a degree that few can be unbent to the point they will never pose a danger to the target of their pathology. The best we can hope for is to physically separate them from their potential victims, often against their will. Failing that we can only remain vigilant. Because they will re-offend, and it’s intellectually dishonest to pretend we don’t they will.

  6. ella says:

    Mark
    The sentence from the district court was 78 months not 78 weeks. 78 months means 6.5 years.
    And I do agree with the Shannon Love, the judge is off on genetics, but otherwise his explanations for the sentence is quite reasonable.

  7. Dean says:

    I can’t see any tie to the “CSI Effect” in this.

  8. bwhacker says:

    One of the problems with this decision is that the judge departs from the guidelines for the admission of scientific evidence established by SCOTUS in the Frye decision. An expert witness, for example, must prove that their conclusions are based on generally accepted scientific methods, not some “expected future discovery”. If that were the case, maybe future criminals will be able to go back and act differently, so we shouldn’t convict anyone of a crime now because they can change it in the future. This is the same effect as supposing that there may be a discovery that this is uncontrollable in the future; the judge doesn’t know it for a fact, so it shouldn’t be admissible. Besides that, the judge essentially introduces scientific evidence not presented. This is not the role of the judge in criminal proceedings. They are only to view the evidence presented and compare it to existing law to determine if the case merits penalty.

  9. Don M says:

    Judge had a case of too much mouth. If he had sentenced pert with fewer words, there would have been less to appeal.

    The lessons of history.
    The bee fertilizes the flower it robs.
    Who the g-ds would destroy, they first make mad with power.
    The wheels of the g-ds grind slowly, but they grind exceedingly small.
    When everything is dark, you can see the stars.

  10. Quayle says:

    This judge makes a sentance ruling and ties it to an assertion about genetics, and everyone goes ballistic.

    But wait! Don’t gays make an identical assertion (that they are genetically gay) based on the very same area of science, and everyone seems to accept that with no problem.

    My point is that if the science doesn’t exist to prove the judges assertion, then it doesn’t exist to prove gays’ assertion either.

    So be careful what you argue here or you’ll be seen to be making a moral and political claim, and not a scientific claim.

  11. Kate says:

    This may make for good sarcasm, but it misses the mark. Much of what the
    average student learned about genetics in high school as recently as 20
    years ago, (let alone the 60’s) has been greatly modified or even overturned by new discoveries in genetics.

    So, what a judge may have learned then is probably close to useless, and I’m astonished that a blog that purports to cover “cognitive neuroscience and behavioral genetics” would offer such a comment.

    That said, there is also this;

    “incorrigible genes made him act the way he did, and that there was
    nothing he could do about it”

    Am I the only one whose mystified by the glaring contradiction – that we are to accept that a) sexual attraction to persons of the same sex is hard wired, but that b) sexual attraction to pre-adolescents is a matter of choice?

    Well, good luck with that. I predict that in the future this defense for pedophilia will be legitimized by the courts – blog snark notwithstanding.

  12. Half Canadian says:

    Well, this is the obvious conclusion of the biological determinism theory.

  13. Shannon Love says:

    The judge is off on his genetics but his assertion that the opinions of psychologist and psychiatrist about future danger mean little is on the mark. No area of forensic science/medicine has a more abysmal track record of predictive failure than does psychological/psychiatric evaluations of future dangerousness. Beyond being able to diagnose defendants with serious and overt mental illness, the “experts” have never been able to scientifically demonstrate that they can individually or collective predict the future behavior of any particular defendant.

    The history of forensic psychology/psychiatry is one of ever shifting fads backed up with little hard science. E.g. Thirty years ago, such an expert would most likely have peppered their opinions with references to Freud which is today regarded as pure pseudo-science with no predictive value.

    Of course, we wouldn’t want to base legal decisions on the judges assertion but we might also want to cut the judge some predictive slack for his scientific projections.

    After all, anytime prior to the late-80s, the suggestion that homosexuality had any biological basis at all was enough to get you labeled a fascist and drummed out of polite society. Today, most science on the matter points to homosexuality being largely biological and arising from a combination of genetic and fetal hormonal influences. A judge circa 1980 that made a ruling based on the premise that homosexuality was biologically innate would have been mocked and hooted down at the time but today we would view him as prescient.

    It is not inconceivable that down the road, we might find that pedophile has some sort of biological basis as well. I think that unlikely but the history of science teaches us to expect surprises.

    The moral here is to keep science out of the court room until it has developed a proven predictive power subject to objective testing. Clinical psychologist and psychiatrist have to fly by the seat of their pants with the guidance of truly hard science because they have patients that need treating now that can’t wait for science to catch up. However, that is no excuse for using their clinical guesswork in the courts.

  14. Mark M. says:

    I see. So it’s a great thing that the appeals court remanded this case, (with an already disturbingly light sentence of $100!, a year and a half in jail, and probation, all for the porn equivalent of trading in ivory), because the District judge offered a supposedly poor genetic theory to explain a truth which is obvious to everyone but child molesters and the 2nd Circuit Court of Appeals:
    The perp is a freak and will always be a freak. The perp cannot be trusted around children and should NEVER be trusted around children.

    And so in an era when one could be fired for suggesting that homosexuality is not solely and completely determined by genetic destiny, this Judge was reprimanded for following that to its logical conclusion as applied to child molestation.

  15. pickwick says:

    I would surmise 1) he sees the defendant as a kindred spirit, and 2) he is trying to establish a precedent for if and when he gets busted for the same offense.

  16. Pingback: Judges aren’t geneticists. 2nd Circuit Benchslaps District Judge who invented genetic theory to explain child pornography purveyors

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