Christopher Slobogin

• Vanderbilt University

The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) was developed to assess competence to stand trial in defendants with Intellectual Disability. Although it remains the only validated instrument for this population, previous research has suggested it is rarely used by forensic examiners, a finding our surv...

In this article, we report the results of a two-part investigation of psychological assessments by psychologists in legal contexts. The first part involves a systematic review of the 364 psychological assessment tools psychologists report having used in legal cases across 22 surveys of experienced forensic mental health practitioners, focusing on l...

This essay is a response to an article by Paul Robinson, Joshua Barton, and Matthew Lister in this issue of New Criminal Law Review that criticizes an article I authored with Lauren Brinkley-Rubinstein entitled Putting Desert in Its Place, which was itself an analysis of several works published by Robinson and various coauthors making the case for...

A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons With Disabilities commands signatory states to eliminate...

This essay outlines three reasons why the death penalty, even if generally a valid exercise of state authority, should never or rarely be imposed on those who are mentally ill. The first argument is the most global: execution of those who suffer from mental illness violates equal protection of the laws in those states which prohibit execution of ch...

The modern United States Supreme Court views the exclusionary rule as a means of deterring police conduct that unduly infringes privacy or autonomy interests. But in years past the Court also proffered two other reasons for exclusion: the importance of ensuring the integrity of the legal system (primarily by avoiding judicial complicity with police...

In More Essential Than Ever: The Fourth Amendment in the Twenty-First Century, Stephen Schulhofer provides a strong, popularized brief for interpreting the Fourth Amendment as a command that judicial review precede all non-exigent police investigative actions that are more than minimally intrusive. This review points out a few places where Schulhof...

A fundamental divide exists between what scientists do as scientists and what courts often ask them to do as expert witnesses. Whereas scientists almost invariably measure phenomena at the group level, trial courts typically need to resolve cases at the individual level. A basic challenge for trial courts that rely on scientific experts, therefore,...

Based on an impressive array of studies, Paul Robinson and his coauthors have developed a new theory of criminal justice, which they call “empirical desert.” The theory asserts that, because people are more likely to be compliant with a legal regime that is perceived to be morally credible, a criminal justice system that tracks empirically derived...

In the history of the Supreme Court, William Rehnquist may have been the least friendly justice toward the view that the Fourth Amendment should be read expansively. Even he, however, might have interpreted the amendment to place more restrictions on modern law enforcement techniques than current caselaw does. Relying on a 1974 article authored by...

In the Supreme Court’s recent decision in United States v. Jones a majority of the justices appeared to recognize that under some circumstances aggregation of information about an individual through government surveillance can amount to a Fourth Amendment search. If adopted by the Court, this notion — sometimes called “mosaic theory” — could bring...

Preventive detention, both within the criminal justice system and outside it (e.g. commitment, quarantine and wartime confinement), is under-theorized. The European Court of Human Rights has recently issued a spate of opinions that begin to deal seriously with the issue, in a more sophisticated manner than American courts have. This paper describes...

The Supreme Court’s 2003 decision in Sell v. United States declared that situations in which the state is authorized to forcibly medicate a criminal defendant to restore competency to stand trial “may be rare.” Experience since Sell indicates that this prediction was wrong. In fact, wittingly or not, Sell created three exceptions to its holding (th...

This document combines short comments about three recent articles discussing Fourth Amendment issues. An Original Take on Originalism, published in Harvard Law Review Forum, is a comment on Orin Kerr’s An Equilibrium-Adjustment Theory of the Fourth Amendment, recently published in Harvard Law Review. Professor Kerr argues that Fourth Amendment law...

This article examines risk assessment, which is defined as the identification of "risk" and "protective" factors that make involvement in crimes more or less likely. It lists the available risk assessment methodologies, the empirical research on their legitimacy, and the ethical and legal issues related to their use. It considers the importance of...

Among modern-day legal academics determinate sentencing and limiting retributivism tend to be preferred over indeterminate sentencing, at least in part because the latter option is viewed as immoral. This Article contends to the contrary that, properly constituted, indeterminate sentencing is both a morally defensible method of preventing crime and...

This chapter is a comparative and empirical look at two of the most significant methods of police investigation—searches for and seizures of tangible evidence and interrogation of suspects. It first compares American doctrine regulating these investigative tools with the analogous rules predominant in Europe. It then discusses research on the way t...

In the search and seizure context, the United States is much more heavily wedded to warrants and exclusion than European countries and in the interrogation setting requires more robust warnings than most nations in Europe. Comparative empiricism is an empirical assessment of the relative effectiveness of these types of differences between nations’...

This article argues that indeterminate sentencing is the optimal means of preventing recidivism among sex offenders, both as an instrumental matter and jurisprudentially. Once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges s...

The current approach to the juvenile crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The currently dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies current knowl...

First established at the end of the 19th century, the juvenile justice system has long been searching for an effective set of guiding principles. Over the last hundred years, through a series of piecemeal rulings, it has undergone an evolution from its original foundation on the rehabilitation model to the current "get-tough" system that increasing...

This work will be a chapter in a forthcoming book in The Future of the Constitution series, edited by Jeffrey Rosen and Benjamin Wittes and published by the Brookings Institute. Over the past 200 years, the Fourth Amendment’s guarantees have been construed largely in the context of what might be called "physical searches" - entry into a house or ca...

This article appears in a symposium issue of Seton Hall Law Review on courtroom epistemology. In Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness, I argued that criminal defendants ought to be able to present speculative psychiatric testimony if the expert has followed a routinized evalu...

In criminal cases, evidence about psychological syndromes is typically introduced by the defense in support of insanity, self-defense, or imperfect self-defense claims and by the prosecution to show that a criminal act occurred. The admissibility of defense-proffered testimony about phenomena such as battered woman syndrome, combat stress syndrome,...

Citizens United v. Election Commission held that, like human citizens, corporations can exercise their right to free speech by spending as much money as they like trying to influence elections. This article does not attack or defend that decision, but rather explores its implications for criminal liability, corporate and otherwise. Most prominently...

These two papers both focus on the intersection of the law of evidence with criminal responsibility doctrine, using as a springboard my book, Proving the Unprovable: The Role of Law, Science and Speculation in Adjudicating Culpability and Dangerousness. The first piece, Psychological Syndromes and Criminal Responsibility, appears in the Annual Revi...

Paul Robinson has written a series of articles advocating the view that empirical desert should govern development of criminal law doctrine. The central contention of empirical desert is that adherence to societal views of “justice” – defined in terms of moral blameworthiness – will not only satisfy retributive urges, but will also often be as effi...

This article examines group-focused police investigation techniques - for instance, roadblocks, drug testing programs, area or industry-wide health and safety inspections, data mining, and camera surveillance - a phenomenon referred to as “government dragnets” because these general searches and seizures attempt to cull out bad actors through ensnar...

This Article responds to two reviews of my book, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (University of Chicago Press, 2007). The book criticizes Supreme Court decisions that immunize from constitutional challenge numerous government surveillance techniques, including monitoring of public activities, spying on the...

Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily involved in helping the law address these issues. But critics deride clinical testimony about culpability as disguised storytelling and tar expert pred...

This article, written for a symposium analyzing Justice Ginsburg’s jurisprudence on the 15th anniversary of her tenure on the Supreme Court, is the first sustained look at her views on criminal procedure issues (search and seizure, interrogation, the right to counsel, trial rights, sentencing procedures, and the criminal appeals and collateral revi...

This article, written for a symposium on “Criminal Law and the Excuses,” defends the “Integrationist” approach to analysis of the exculpatory effect of mental disability that I developed in Chapter Two of my book, Minding Justice: Laws that Deprive People with Mental Disability of Life and Liberty. The book argues that the special nature of the ins...

The current eclectic mix of solutions to the juvenile-crime problem is insufficiently conceptualized and too beholden to myths about youth, the crimes they commit, and effective means of responding to their problems. The dominant punitive approach to juvenile justice, modeled on the adult criminal justice system, either ignores or misapplies curren...

This paper critiques the recent article from Dan M. Kahan, David A. Hoffman, and Donald Braman, entitled Whose Eyes Are You Going To Believe? Scott v. Harris and the Perils of Cognitive Illiberalism. Based on a study of lay reactions to the fact situation in Scott v. Harris, in which the Supreme held that a car chase that rendered the plaintiff qua...

In 1998, the American Law Institute decided to revisit the sentencing provisions in the Model Penal Code. Since that time the Model Penal Code Sentencing (MPCS) project has resulted in several approved revisions to the existing Code and several proposed changes that still must be adopted by the ALI. Among the approved provisions are a "purposes" st...

This chapter applies principles I have developed elsewhere regarding the state's ability to intervene on the basis of dangerousness to the ultimate form of prevention detention, capital punishment. More specifically, it addresses the following issues: (1) whether dangerousness may be considered an aggravating factor that justifies imposition of a d...

This article summarizes the findings and recommendations of the ABA Death Penalty Moratorium Implementation Project's Florida Assessment Team, which I chaired. Relying on an analysis of caselaw, studies, news reports, and interviews, the article describes significant flaws in Florida's death penalty law and practice in nine areas: the police invest...

In the recent decision of Indiana v. Edwards the Supreme Court held that the right to represent oneself may be denied to defendants who are competent to stand trial if they "still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves." Edwards was a surprise, given the Court's holding...

Death penalty determinations, non-capital sentencing, detention of enemy combatants, sexual predator commitment, civil commitment, pretrial detention, and investigative stops by the police often or always depend upon assessments of dangerousness. This paper, an entry in the Criminal Law Conversations project, argues that liberty deprivation based o...

On the assumption that the predominating guidepost of the criminal law is blameworthiness, this paper, an entry in the Criminal Law Conversations project, argues that the insanity defense is no longer needed. Instead, mental disorder should be relevant to criminal culpability only if it supports an excusing condition at the time of the offense that...

This article, written for a symposium on "Guilt v. Guiltiness: Are the Right Rules for Trying Factual Innocence Inevitably the Wrong Rules for Trying Culpability?," argues that the definition of expertise in the criminal justice system, derived in the federal courts and in most states from Daubert v. Merrell Dow Pharmaceuticals Co., should vary dep...

The government's ability to obtain and analyze recorded information about its citizens through the process known as data mining has expanded enormously over the past decade. Although the best-known government data mining operation (Total Information Awareness, more recently dubbed Terrorism Information Awareness) supposedly no longer exists, large-...

This essay, for a symposium on Citizen Ignorance, Police Deception and the Constitution, relies on moral philosophy and new empirical research in arguing that police deceit during interrogation is permissible when: (1) it takes place in the window between arrest and formal charging; (2) it is necessary (i.e., non-deceptive techniques have failed);...

Culpability and dangerousness are the two central issues raised by any sensible societal attempt to deal with antisocial behavior. For the past century, mental health professionals have been heavily involved in helping the law address these issues. But critics deride clinical testimony about culpability as disguised storytelling and tar expert pred...

In most jurisdictions, the Tarasoff duty is defined as a duty on the part of mental health professionals to act on patient threats of serious harm to identified individuals. Although breach of this duty has, to date, only led to civil liability, a good case can that it should lead to criminal liability as well, not just for something minor like a f...

Without our consent and often without our knowledge, the government can constantly monitor many of our daily activities, using closed circuit TV, global positioning systems, and a wide array of other sophisticated technologies. With just a few keystrokes, records containing our financial information, phone and e-mail logs, and sometimes even our me...

Civil commitment, confinement under sexual predator laws, and many capital and noncapital sentences depend upon proof of a propensity toward violence. This article discusses the current state of prediction science, in particular the advantages and disadvantages of clinical and actuarial prediction, and then analyzes how the rules of evidence should...

In 1975 Congress simultaneously adopted Federal Rule of Evidence 410 and Federal Rule of Criminal Procedure 11(e)(6), both of which prohibited, in virtually identical language, evidentiary use of withdrawn guilty pleas and statements made during failed plea negotiations. Twenty years later, in United States v. Mezzanatto, the United States Supreme...

The primary goal of this book is to advance new ways of thinking about laws that society uses to deprive people with mental disability of life and liberty, organized around three models of liberty deprivation: the punishment model, the prevention model, and the protection model. With respect to the punishment model, it argues for a complete revampi...

This article challenges the accepted wisdom, at least since the Supreme Court's decision in Gault, that procedures in juvenile delinquency court should mimic the adult criminal process. The legal basis for this challenge is Gault itself, as well as the other Supreme Court cases that triggered the juvenile justice revolution of the past decades, for...

This symposium article is the second of two on regulation of government efforts to obtain recorded information for criminal prosecutions. More specifically, it explores the scope and regulation of "transaction surveillance," which it defines as government attempts to access already existing records, either physically or through data banks, and gove...

This symposium article, the first of two on regulation of government's efforts to obtain paper and digital records of our activities, analyzes the constitutional legitimacy of subpoenas. Whether issued by a grand jury or an administrative agency, subpoenas are extremely easy to enforce, merely requiring the government to demonstrate that the items...

This article, part of a symposium on prosecutorial discretion, uses the Martha Stewart case to look more closely at the various types of discretion prosecutors wield. Unlike some other commentators, we are not persuaded that the case against Stewart was brought in bad faith or that it was unwarranted at its core. As we discuss in the first part of...

This article explores the jurisprudential and practical feasibility of a "preventive" regime of criminal justice. More specifically, it examines an updated version of the type of government intervention espoused four decades ago by thinkers such as Barbara Wooton, Sheldon Glueck, and Karl Menninger. These individuals, the first a criminologist, the...

This article addresses the state's police power authority to deprive people of liberty based on predictions of antisocial behavior. Most conspicuously exercised against so-called "sexual predators," this authority purportedly justifies a wide array of other state interventions as well, ranging from police stops to executions. Yet there still is no...

This essay, part of a two-issue symposium on the implications of Daubert v. Merrell Dow Pharmaceuticals and its progeny, is built around three propositions about expert testimony and criminal cases. First, the "Daubert trilogy's" focus on verifiability as the threshold for expert testimony pushes the criminal justice system away from the notion tha...

Numerous authors, from all points on the political spectrum, have advocated that police interrogations be taped. But police rarely record custodial questioning, at least in full, and only a handful of courts have found this failure objectionable. This commentary outlines three different constitutional grounds for mandating that such recording becom...

This article, written for a symposium on Atkins v. Virginia - the Supreme Court decision that prohibited execution of people with mental retardation - argues that people with severe mental illness must now also be protected from imposition of the death penalty. In labeling execution of people with mental retardation cruel and unusual, the Atkins ma...

Government-sponsored camera surveillance of public streets and other public places is pervasive in the United Kingdom and is increasingly popular in American urban centers, especially in the wake of 9/11. Yet legal regulation of this surveillance is virtually non-existent, in part because the Supreme Court has signalled that we have no reasonable e...

This essay, written for the Sixth Annual LatCrit conference, explores the subterranean motifs of current rules regulating searches and seizures by the police. More specifically, it investigates whether and to what extent alienage, race and poverty influence the warrant and individualized suspicion rules purportedly governing police investigation. T...

This article assesses Professor Anthony Alfieri's proposal that ethical sanctions be imposed on defense attorneys who raise claims, such as the "rotten social background" and "black rage" defenses, that could cause racial harm by pathologizing African-Americans or otherwise creating a negative image of the black community. The first part of the art...

This article suggests that the Supreme Court's decision in Kyllo v. United States may not be as protective of the home as it first appears. Kyllo held that use of a thermal imager to detect heat sources inside the home is a fourth amendment search, requiring a warrant and probable cause. But it also held that use of technology that is in "general p...

This amicus curiae brief was filed in support of the appeal by Lionel Tate of his conviction of felony murder. Lionel, at age 12, crushed his six year old cousin while imitating World Wrestling Federation moves. Tried as an adult, he was sentenced by a Broward County Florida criminal court to life in prison without parole. The amicus brief argues t...

Recent policy initiatives threaten to reduce the rehabilitative mission of the juvenile court or eliminate the court entirely. This article lays out a framework for an empirical assessment of these developments. It first evaluates the available and potential empirical support for three hypotheses about juveniles that might justify maintaining a sep...

In place of the police and parens patriae powers, this article proposes three distinct justifactory models for government-sponsored deprivations of liberty. The punishment model authorizes deprivation of liberty as a sanction for blameworthy behavior. The prevention model authorizes deprivation of liberty to prevent harm, either through deterrence...

This article makes the case against the exclusionary rule from a "liberal" perspective. Moving beyond the inconclusive empirical data on the efficacy of the rule, it uses behavioral and motivational theory to demonstrate why the rule is structurally unable to deter individual police officers from performing most unconstitutional searches and seizur...

This is a review of JUSTICE, LIABILITY AND BLAME, by Paul Robinson and John Darley. The book is a summary of 18 studies which surveyed lay subjects about their attitudes toward various aspects of criminal law doctrine, including the act requirement for attempt, omission liability, accomplice liability, the felony-murder role, and the intoxication a...

This article looks at lying and deceit by the police in three investigative contexts: undercover work, searches and seizures, and interrogation. Relying principally on the work of moral philosopher Sissela Bok, it sets up a framework for evaluating such police deception. It then draws some conclusions about the extent to which the implications of t...

Three major legal mechanisms exist for providing involuntary community treatment to people who are violent and mentally disabled: outpatient commitment, preventive commitment, and conditional release from a hospital. In most states, predicted deterioration is either the explicit or the de facto criterion for involuntary community treatment. However...

Surveyed 217 Ss (aged 18–70 yrs) regarding the degree of perceived intrusiveness of 50 different types of law enforcement investigative techniques, taken primarily from US Supreme Court cases. Respondents disagreed strongly with many of the assumptions that the Court makes about privacy and autonomy. A search or seizure was viewed as more intrusive...

analyze whether and when dangerousness is a legitimate consideration in the criminal context and how it should be conceptualized and predicted / the argument explored here . . . is that dangerousness should not be grounds for intervention in many of the contexts it currently is grounds for intervention; and when it is a legitimate legal criterion,...