Judges, Lawyers, and Science

It might have looked like an essentially technical matter, but the Supreme Court’s recent decision in R. v. Tatton, 2015 SCC 33 turns out to be full of interesting things to discuss. I have already written about what it might suggest about the Court’s views on mandatory minimum sentences, and what it tells us about the respective roles of the courts and Parliament in law reform. I come back to it again to follow up on Lisa Silver’s very interesting post over at Ideablawg about the lack of scientific foundations beneath Justice Moldaver’s opinion for a unanimous court.

The narrow question the Court faced in Tatton was whether intoxication can be a defence to a charge of arson ― on the theory that an intoxicated person who puts something (in this case, the house in which he was living, but which belonged to someone else) on fire lacks the requisite “mental element” for the offence. The broader question on which the Court tried to provide guidance was how to distinguish offences for which intoxication can be invoked as an excuse, and those for which it cannot, somewhat confusingly known, respectively, “specific intent” and “general intent” offences. As Ms. Silver notes,

Liberally sprinkled throughout the decision is reference to the inextricable connection between intoxication and crime. …  Despite this heavy reliance on what appears to be scientific truths, at no time did the Court refer to or support the position with scientific study or research.

While a precedent the Court considered did rely on scientific literature, it was, Ms. Silver points out “was rendered in 1994, twenty-one years ago, with the studies coming from the mid to late 1980s.” Ms. Silver discusses ― and links to ― a considerable number of studies carried out since then. Her takeaway from them is that

that the issue is has not been empirically determined and the relationship between alcohol, mental processes, and crime is highly complicated and variable.

Justice Moldaver’s opinion, by contrast, makes things look very simple. Ms. Silver concludes that

Mr. Justice Moldaver relied upon the court’s perception of the “science” … in reiterating a long held position that intoxication is not a defence to a general intent offence without referencing any recent empirical studies … By proceeding on this basis, the Court missed the opportunity to provide some rational basis for the general/specific distinction. Instead, the Court has simply perpetuated a legal fiction.

The Court’s “empirical turn,” most recently exemplified by its decision in  R. v. Smith, 2015 SCC 34, which relied on research regarding the therapeutic effects of various forms of medical marijuana, has not exactly followed a consistent trajectory. There have been missed opportunities such Tatton along the way, or R. v. Fearon, 2014 SCC 77, [2014] 3 S.C.R. 621, where Justice Cromwell claimed that armed robberies had “become depressingly routine,” despite crime statistics ― to which he did not refer ― suggesting that their incidence was falling. In the rest of this post, I would like to venture some observations on the context in which these missed opportunities and outright misstatements occur.

For instance, it is important to note that the Court is not the only party to ignore the science relevant to its cases. In Tatton, only one of the three facta (that of the Ontario Crown) submitted to the court referred to scientific studies ― and only as a additional support for the claim that “[i]t is well known that many people do foolish and dangerous things when drinking.” [79] The “common sense observation” is what matters in that passage; the scientific evidence is almost an afterthought. The accused and Criminal Lawyers’ Association of Ontario, which intervened to support him, did not manage even that. They were content with citing cases and, at most, reports of law-reform commissions. As Richard Posner says in his Reflections on Judging, the bench and the bar share a lack of familiarity with the sciences, whether social or natural and, worse, a lack of curiosity that results in an unwillingness to investigate the backgrounds against which legal rules operate, to go beyond the “common sense” assumptions which may bear little, if any, resemblance to the scientific truth.

At the same time, it is not enough to blame the lawyers’ narrow-mindedness. The “empirical turn” suggests, after all, that some of them can overcome it at least some of the time. Why not in Tatton though? The nature of the case, I suspect, is an important factor here. In commenting on Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, Sonia Lawrence observed, vividly, that the Charter challenges emblematic of the “empirical turn” “aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece.” Tatton, by contrast, was a case that “walked in the office” of small-town law firm ― perhaps literally. Mr. Tatton was facing a criminal charge. He probably had little money. It’s not quite fair to expect that his lawyers, with his and their limited time resources, would have done as thorough a job of mounting an empirical case as an interest group pursuing a constitutional challenge on its own terms. (Still, not being able to mount a perfect empirical case is no excuse for not even trying to inject at least some scientific background into one’s argument.) In my own take on Bedford, I wrote that “[t]he government, as the best funded and most powerful interest group of them all, is more likely to have the resources to put together a solid record than those who challenge it.” It is perhaps not just coincidental that the only references, however minimal, to scientific literature in this litigation appeared in the Crown’s factum.

Now given the limitations on the lawyers’ willingness and ability to provide judges with the scientific background relevant to the cases they argue, the question arises of whether judges should just find it themselves. Ms. Silver, I suppose, thinks that they should. Judge Posner certainly does, and he actively practices what he preaches. But, in the United States at least, he has a considerable number of critics, who warn that judges who turn to Google to find background information missing from the record built up by the parties are not only acting unfairly by not giving parties notice of their concerns, but also risk committing serious mistakes. (I wrote about a very interesting article by Allison Orr Larsen exploring these issues here.) In Reflections on Judging, Judge Posner retorts that “no one should be so naïve as to believe that the determination of facts by the familiar adversary process at trial is proof against error.” (140) That’s true so far as it goes, but tu quoque isn’t always a very compelling argument. Why should we, one might ask, compound the errors of the courtroom with further errors made in the judge’s chambers? Ultimately, Judge Posner acknowledges these concerns and admits that

[t]here is a danger that judicial recourse to secondary literature, and to the Internet more broadly, will often be rhetorical rather than substantive. I have no solution to this problem—other than to suggest trying through judicial training and other means to increase the intellectual sophistication of the judiciary. (142)

That, as he points out elsewhere in that book, is no easy task.

Indeed, there are no easy solutions to the problems I have tried to canvass in this post. Judicial decision-making that doesn’t try to address empirical evidence or scientific research risks going astray, but so do attempts to take stock of such information. There are longstanding prejudices of all the branches of the legal profession ― including, I’m afraid, the academic branch ― as well as resource constraints to contend with. If Judge Posner has no solution for these problems, I will certainly not pretend to have one either. But perhaps if more of us start thinking about them, we will be able to come up with something.

Contesting Expertise in Prison and at Large

I wrote on Thursday about a very interesting article by Lisa Kerr, “Contesting Expertise in Prison Law,” which argues that courts should be less deferential to prison administrators and should take facts, especially social science evidence about the real-life operation of prisons and the lives of prisoners into account, as well as that lawyers need to provide judges with such facts. As promised in that post, I would like to offer a (friendly) critique of Ms. Kerr’s article, trying to put the trend of deference which she decries, as well as the strategy of enlisting social science evidence to counter this trend, which she advocates, in their broader context.

The lack of this broader context is the one thing I didn’t quite like about Ms. Kerr’s article. Although it is not an entirely fair reproach to make to a piece that is 50 pages long without being prolix, I still think that considering it might have been useful, for it would have shown that the problems that the article describes ― excessive judicial deference to supposedly expert administrators, and failure to consider the evidence of the real-life effects of these administrators’ decisions ― are not unique to the prison law context.

Start with deference. Some ― uncertain ― measure of deference is, rightly or wrongly, a standard feature of most Charter litigation. Perhaps it wasn’t supposed to be like that. In a passage from R. v. Oakes, [1986] 1 S.C.R. 103, which now seems to have been largely forgotten, Chief Justice Dickson wrote that

any s. 1 inquiry must be premised on an understanding that the impugned limit violates constitutional rights and freedoms ― rights and freedoms which are part of the supreme law of Canada.

Contrast this with, say, Chief Justice McLachlin’s statement of the general approach to s. 1 in Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567, according to which

[s]ection 1 of the Charter does not demand that the limit on the right be perfectly calibrated, judged in hindsight, but only that it be “reasonable” and “demonstrably justified”. [37]

And then, there’s the trend towards generalized deference to administrative decision-makers, including of course correctional authorities, including increasingly in Charter cases. Contrast, again, the words of Justice Charron, writing for the majority in Multani v. Commission scolaire Marguerite‑Bourgeoys, [2006] 1 S.C.R. 256, 2006 SCC 6, rejecting an

approach could well reduce the fundamental rights and freedoms guaranteed by the Canadian Charter to mere administrative law principles, [16]

and the Court’s unanimous decision in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, which held that administrative decisions were not subject to the Oakes test at all, further that discretionary, individualized decisions (although not decisions as to the constitutionality of a law) were to be reviewed for their compliance with “Charter values” on a standard of reasonableness, not correctness.

Now this trend need not be an insuperable obstacle for the attempt to make courts rein in prison administrators. In Hutterian Brethren, the Chief Justice pointed out that courts will generally defer more to “a  complex regulatory response to a social problem” than to “a penal statute directly threatening the liberty of the accused.” [37] One of the reasons Ms. Kerr’s article is important is that it shows that many decisions of the prison authorities belong less in the former category than courts may tend to suppose, and more in the latter. Indeed, Ms. Kerr suggests that using expert evidence can help the prisoners’ lawyers make these decisions appear less complex, and more penal, than judges, who are not familiar with the prison environment, are inclined to believe. This is a most interesting ― and somewhat subversive ― suggestion.

Unfortunately, it may not be easy to get lawyers to adopt it, and judges to go along. Lawyers’ and judges’ reluctance to deal in facts is also a tendency that affects much more than prison law. Richard Posner bemoans it in his recent book of Reflections on Judging ― which is why I described Ms. Kerr’s article as “an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information.” Indeed, Judge Posner specifically notes that “[f]ew federal judges, or for that matter prosecutors and defense attorneys, are familiar with … studies” dealing with the economics of imprisonment and alternative forms of punishment, including the costs and benefits to society and offenders. (68) But that is just one example, one complaint in a litany. Judge Posner makes a compelling argument that “[w]e need evidence-­based law across the board, just as we need evidence-­based medicine across the board,” (62) but his book offers no easy paths to get there. As he points out, judges tend to share

a professional mind-set that often includes — along with impartiality, conscientiousness, and other traditional attributes of a good judge — lack of curiosity, a feeling of intimidation by science and technology, and a lack of interest in obtaining an empirical rather than merely intuitive grounding for one’s beliefs. These attitudes communicate themselves to the bar , [creating] an unfortunate feedback effect because of the dependence of judges on lawyers in our adversarial legal system. (92-93)

This is the problem Ms. Kerr’s argument is up against and, to repeat, it is not unique to prison law. What is more, as Judge Posner points out, the two trends of deference to administrative decision-makers and reluctance to engage with complex facts are related. “[W]hen they don’t understand the activity from which a case before them has arisen,” (85-86) he writes, judges often seek to avoid deciding it themselves. One way to do that it is to let it

be answered by administrative agencies to which judges defer on the often fictitious ground that the agencies have “expertise,” even if their adjudicators are poorly trained, horribly overworked, highly politicized, or all these things at once. (86)

These trends can be overcome. Ms. Kerr holds up the Supreme Court’s decision in Sauvé v. Canada (Chief Electoral Officer), [2002] 3 S.C.R. 519, 2002 SCC 68, which granted all prisoners their voting rights under s. 3 of the Charter, as a hopeful example and model. Yet as Michael Pal’s study of the role of social science evidence in the Supreme Court’s law of democracy cases shows, its rejection of deference is unusual not only in the prisoners’ rights jurisprudence but also in that on democratic rights and freedoms. This jurisprudence, not coincidentally, is also largely characterized by judicial unwillingness to engage with relevant facts and social science evidence. “[L]ogic, reason and some social science evidence” are enough, the Supreme Court’s majority said in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827, 2004 SCC 33, at par. 78, even as it blithely ignored the dissent’s warnings about the speech-stifling real-life effects of the provisions of the Canada Elections Act whose constitutionality it was upholding. The fight for evidence-based law will have to be fought on all fronts ― in prisons and outside.

For this reason, Ms. Kerr’s article’s showing how a sufficiently well-prepared case may be able to overcome these obstacles is perhaps even more important than she lets on. Of course, there are other examples too. In the area of the law of democracy (and in the United States), Judge’s Posner’s recent opinion ― albeit one dissenting from denial of rehearing en banc ― in Frank v. Walker, a voter-ID case is another. (It is also proof that even individual judges can be made to change their mind when presented with compelling evidence.) The Supreme Court’s recent decisions regarding the rights of injection drug users and sex workers, to which Ms. Kerr refers, are two more. They are, just like the recent prisoners’ rights cases Ms. Kerr extols, part of what Kerri Froc described as an “empirical turn in Charter jurisprudence,” on which I have been writing quite a bit here.

The “empirical turn” creates many problems, not the least of which is the length and expense (quite apart from the difficulty) of putting together a compelling record. In Sonia Lawrence’s words,

these aren’t cases that walk into your office one day. They are cases put together piece by painstaking piece. It’s a long road to justice this way around, folks.

Ms. Kerr’s article is a reminder that it might also be the only road there is. And a suggestion as to how to travel it that little bit faster.

Fighting Expertise with Expertise

Lisa Kerr, a brilliant colleague of mine at the JSD programme at NYU and soon-to-be professor at Queen’s, has recently published a fascinating article called “Contesting Expertise in Prison Law,” explaining the practical and normative importance of expertise and evidence in prisoners’ rights adjudication. I am no doubt biased, but I think it deserves to be read and thought about, both for its importance to its specific topic, and for what it can tell us about some much broader trends in Canadian law. This post is mostly a summary of the article. I will offer a critique, focusing on its relationship with these broader trends, in a separate one (hopefully tomorrow or this weekend).

Ms. Kerr’s argument, in a nutshell, is an almost Posnerian plea for judges to be attentive to facts and, in particular, to the information that various experts can provide about prisons, when they adjudicate constitutional claims brought by prisoners, as well as for lawyers to provide judges with such information. Armed with facts and expert opinion, Courts can and should stop being unduly deferential to prison administrations, which tend to cloak their imposition of unnecessarily harsh conditions on prisoners in claims of expertise. “Prisons,” Ms. Kerr writes, “do not need to be viewed as mysterious places by courts, nor as places where necessarily amateur outside intervention could trigger unknown dangers.” (74)

Looking at both Canada and the United States, Ms. Kerr traces the rise and decline of judicial willingness to intervene to protect the rights of prisoners. For a long time, she notes, inmates were effectively regarded as having lost all rights. Prisons were places where the ordinary law, including constitutional law, did not run. But beginning in the 1960s in the United States, and the 1970s in Canada, courts started intervening and imposing constitutional constraints on prison authorities. Yet the movement was reversed in the United States, with courts adopting increasingly deferential approaches to the claims by prison authorities that this or that repressive measure was necessary to ensure prison security or otherwise advance “legitimate penological goals.” (A welcome counterexample, too recent to have made it into Ms. Kerr’s article, is the U.S. Supreme Court’s unanimous decision this week in Holt v. Hobbs, rejecting the claims Arkansas Department of Corrections’ claim that allowing a devout Muslim inmate to wear, for religious reasons, a half-inch beard would be too dangerous.) In Canada, although one might have expected the coming into force of the Charter to spur the courts to accept prisoner claims, their “hands-off” instincts have proven remarkably resilient. Both lower courts and, on occasion, the Supreme Court have been disinclined to look into the issues of sentence administration, and preferred to treat prisons as separate universes properly subject to their own rules.

Yet there have been hopeful signs, Ms. Kerr notes. Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519), which held that prisoners could not be disenfranchised, was one case where their constitutional rights were granted the same significance as those of other citizens. And, more recently, challenges supported by sophisticated evidentiary records have succeeded, at trial level, in thwarting the prison administrators’ repressive instincts. The presence in the record of social science evidence can make it clear ― and indeed force prison authorities to acknowledge ― that the impugned decisions were made without any real justification or even thought going into the process, and that alternative, less repressive, courses of action are available. Probably the most important theoretical point Ms. Kerr makes is that

[t]he question of evidence has, in fact, been the critical dimension for claimants who experience chronic marginalization and popular resentment. This is at least partially because the evidentiary record is the means by which counsel can insist that constitutional adjudication not mirror conjecture and stereotyping from the wider culture. (76; emphasis mine.)

The practical takeaway follows immediately, and inexorably:

Counsel for prisoner claimants should continue to focus on the issue of expert evidence, notwithstanding the difficulties of doing so, and should be aware that there is an extraordinary range of expertise and literature that could bear upon future Charter claims.(76)

It is a bit ironic, of course: if you want to contest expertise (that of prison authorities), you have to counter it with more expertise (that of social scientists or even, for that matter, that “former prison administrators, and administrators from other jurisdictions” (74)). And since the government is, as Ms. Kerr acknowledges, itself well-positioned to collect and present expert evidence, it could potentially play that game too. But the end point is not tto stick it to the government ― it’s to make prisons a more human place (and, by way of consequence, those who eventually come out of them better, or at least less-worse, people!). If the government starts winning cases on the basis that its policies are actually in keeping with at least a reasonable take on the best expertise that exists in the realm of prison administration, rather than simply because courts reflexively defer to the administrators, Ms. Kerr will have succeeded, and we all will be better off.

The Elephant in the Conference Room

In my post discussing the Supreme Court’s recent decision in R. v. Fearon, 2014 SCC 77, which held that (some) warrantless searches of cell phones incident to arrest were constitutional, I “wonder[ed] whether Justice Cromwell was swayed by his conclusion ― irrelevant and apparently unsupported ― that the robbery of which Mr. Fearon is accused is ‘a crime that has become depressingly routine.’” [5] I’m not alone in having found Justice Cromwell’s comments strange. Unlike me, however, Addison Cameron-Huff has done the right thing and fact-checked them.

What Mr. Cameron-Huff has found is that armed robberies have become much less, not more frequent in the last 15-20 years. He points, for instance, to Statistics Canada finding that between 1999 and 2008, the incidence of armed robberies went down by more than 25%, and that of armed robberies involving a firearm, by more than 35%. I guess it’s possible that this trend was reversed in the last few years, but that seems not likely at all: the RCMP points out that one particular type of armed robbery, namely “[b]ank holdups have declined even more dramatically — 46 per cent — across the country from a total of 1,098 robberies in 2000 to 591 in 2012,” while Statistics Canada reports that the overall robbery rate has gone down by 17% between 2002 and 2012.

Mr. Cameron-Huff also notes that he couldn’t “find any reference in the factums filed by the parties to an increasing crime rate. Justice Cromwell seems to have taken judicial notice of this (incorrect) statistic.” Less politely, one might suggest that Justice Cromwell took that “statistic” out of thin air. To be sure Justice Cromwell’s words might be (very charitably) read as suggesting that armed robberies are now considered not to be a big deal, rather than that they are more common. Yet not only would that reading be a stretch, but that assertion too would be unsupported by anything.

That a Supreme Court opinion would make such unsupported assertions ― as best we can tell, falsifiable, and actually false, unsupported assertions ― is remarkable. One thought here is that, for all the problems with social science evidence that I have been blogging about here and elsewhere, it is even worse when courts assert “facts” on which such evidence bears without looking at that evidence at all. Relatedly, it might be bad when judges google, but even worse when they make assertions that a fairly simple search would have proven wrong.

It is also remarkable, I think, that Justice Karakatsanis’s dissenting opinion ― which I otherwise quite like ― does not challenge Justice Cromwell on this point at all. Did Justice Karakatsanis think that Justice Cromwell’s assertion is not important? Did she not want to make her dissent more confrontational than it needed to be? Or did Justice Karakatsanis, as well as Justices Abella and Lebel, who dissented with her, not realize that Justice Cromwell was wrong? Did they not even suspect that he might be, enough to ask a clerk to check? That last possibility, suggesting that the Supreme Court is at serious risk of not noticing the elephant of falling crime rates in its conference room when it discusses future criminal law cases, is deeply worrying.

More on the Empirical Turn

My latest post for the CBA National Magazine’s blog has now been published. Continuing on the topic of the “empirical turn” in Charter litigation exemplified by decisions such as Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, I argue that the courts’ reliance on social science evidence can be dangerous because the science in question is often affected by ideological bias.

I have recently blogged about the inextricable mixing of advocacy and social scientific expertise manifested in the evidence submitted in Trinity Western University v. Nova Scotia Barristers’ Society, 2014 NSSC 395. But there, at least, the advocacy was manifest. The problem which I now discuss is more subtle, and therefore more dangerous. As I explain in my post, even social science that does not look like advocacy, to its authors or even to outside observers, can be tainted by political or ideological bias.

This is not just speculation or conjecture ― my post is largely based on a paper by a group of social psychologists, including the celebrated Jonathan Haidt. (If you want to see him in action, watch this recent talk at NYU; it’s some of prof. Haidt’s comments, mostly in the Q&A, that set me off on this topic.) Of course, you may think that there is something ironic about using a paper written by a bunch of social scientists to attack the use of social science evidence. But, as I have already explained, I am not saying that we should give up on social science evidence altogether. Rather, we should be aware of the dangers that it brings, and adjust our procedures to deal with them as best we can. Both lawyers and judges, I argue, have an important role to play in this regard.