So we invest heavily: Today, you can search a free online database of registered sex offenders in every state. Lancaster, “Sex Offenders: The Last Pariahs.” And the amount of oversight and punishment of sex offenders shows no sign of dissipating. Forty-four states, for example, have either enacted or are currently considering laws that require certain sexual predators to wear electronic monitoring devices for the rest of their lives. Lancaster, “Sex Offenders: The Last Pariahs”; National Conference of State Legislatures, State Statutes Related to Jessica’s Law, accessed November 3, 2014, http://www.leg.state.vt.us/WorkGroups/sexoffenders/NCSLs_Jessicas_Law_Summary.pdf. At the federal level, in less than 20 years, the average sentence for possessing or distributing child pornography has more than quintupled to just under a decade in prison. U.S. Sentencing Commission, Sentence Length in Each Primary Offense Category (2011), Table 13, http://www.ussc.gov/sites/default/files/pdf/research-and-publications/annual-reports-and-sourcebooks/2011/Table13.pdf; Rachel Aviv, “The Science of Sex Abuse.”
Unfortunately, research suggests that these types of laws are extremely costly and often ineffective. “Sex Laws Unjust and Ineffective,” The Economist, August 6, 2009, http://www.economist.com/node/14164614. Indeed, a study of Megan’s Law in New Jersey, funded by the federal government, showed no meaningful effect on recidivism rates. Kristen Zgoba, Megan’s Law: Assessing the Practical and Monetary Efficacy (New Jersey Department of Corrections, 2008), 2; Lancaster, “Sex Offenders: The Last Pariahs.” And these statutes can actually make matters worse. Once they are listed on a public registry, people are at serious risk of losing their jobs and struggle to find employment. Jill S. Levenson and Leo P. Cotter, “The Effect of Megan’s Law on Sex Offender Reintegration,” Journal of Contemporary Criminal Justice 21 no. 1 (2005): 49, doi: 10.1177/1043986204271676; “Sex Laws Unjust and Ineffective.” Laws that bar offenders from living within a certain number of feet of parks or schools further marginalize these individuals, particularly in urban areas where most of the landscape ends up being off-limits “Sex Laws Unjust and Ineffective.” Research shows that those without a stable place to live or a job are more likely to reoffend. Center for Sex Offender Management, What You Need to Know About Sex Offenders (Center for Effective Public Policy, 2008), 4-5, http://www.csom.org/pubs/needtoknow_fs.pdf; “Sex Laws Unjust and Ineffective.”
Our registries also make those previously convicted of sex offenses targets for harassment and attacks. “Sex Laws Unjust and Ineffective”; Richard Tewksbury and Matthew Lees, “Perceptions of Sex Offender Registration: Collateral Consequences and Community Experiences,” Sociological Spectrum 26 (2006): 329. That is, we facilitate serious crimes against people who have served their time and, in many cases, are simply trying to piece their lives back together.
Similarly, passing a bill allowing for the indefinite civil detention of sex offenders even after they have completed their sentences may seem like a sensible response to a particularly egregious crime against a child—a way to use the tragedy to enact change that will keep kids in the community safer. And, in fact, the Adam Walsh Act and more than twenty state sexually violent predator laws provide for the subsequent civil commitment of those prisoners assessed to have serious impulse control issues related to sexually assaulting children. Rachel Aviv, “The Science of Sex Abuse.” But it seems extremely unjust to determine that a person has sufficient control over his actions to be found criminally blameworthy, have that person serve his time in prison, and then, just as he is about to regain his freedom, decide to lock him up in a mental-health facility on the grounds that he is dangerous because he does not have the ability to control his actions. A dirty trick like that would seem more at home in a Kafkaesque nightmare than present-day America.
The news media further distorts: Kahneman, Thinking, Fast and Slow, 137–45.
And how easily we can recall: Kahneman, Thinking, Fast and Slow, 142; Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 685–86.
It makes a difference: It’s easy to see how media coverage can engender a vicious cycle—what some scholars call an “availability cascade.” Kuran and Sunstein, “Availability Cascades and Risk Regulation,” 685; Daniel Kahneman, Thinking, Fast and Slow, 142. Horrible crimes are given prominence by the media, which causes private citizens and lawmakers to assess these crimes as more likely to occur than they actually are and to believe that addressing them is particularly important. This, in turn, means that the media focuses even more time on covering rapes, murders, and brutal assaults, which encourages the public to see them as even more important and dangerous.
Likewise, the disproportionate number: Jerry Kang, “Trojan Horses of Race,” Harvard Law Review 118 (2005): 1549–51.
Many academics and journalists: Ian Sample, “US Court See Rise in Defendants Blaming Their Brains for Criminal Acts,” Guardian, November 10, 2013, http://www.theguardian.com/world/2013/nov/10/us-rise-defendants-blame-brains-crimes-neuroscience; Jessica Hamzelou, “Brain Scans Reduce Murder Sentence in Italian Court,” New Scientist, September 1, 2011, http://www.newscientist.com/blogs/shortsharpscience/2011/09/brain-scans-reduce-sentence-in.html; Emiliano Feresin, “Italian Court Reduces Murder Sentence Based on Neuroimaging Data,” Nature News Blog, September 1, 2011, http://blogs.nature.com/news/2011/09/italian_court_reduces_murder_s.html.
Stefania had pled guilty: Feresin, “Italian Court Reduces Murder Sentence.”
Critics of the reduced sentence: Hamzelou, “Brain Scans.”
Moreover, they noted, Stefania’s brain: Feresin, “Italian Court Reduces Murder Sentence.”
It seems obvious that: Hamzelou, “Brain Scans.”
Our thoughts, beliefs, and actions: David Eagleman, “What Our Brains Can Teach Us,” Op-Ed, New York Times, February 22, 2013, http://www.nytimes.com/2013/02/23/opinion/what-our-brains-can-teach-us.html?_r=0.
If some of these electrochemical reactions: “Brain Tumor: Symptoms and Signs,” Cancer.net, last modified June 2013, http://www.cancer.net/cancer-types/brain-tumor/symptoms-and-signs.
Be born with the wrong set: Alexia Cooper and Erica L. Smith, U.S. Department of Justice, Homicide Trends in the United States, 1980–2008: Annual Rates for 2009 and 2010 (Washington, DC: Bureau of Justice Statistics, November 2011), 3, http://www.bjs.gov/content/pub/pdf/htus8008.pdf; Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,” Akron Law Review 42 (2009): 691–93.
How troubled are we: According to a recent analysis, 4.1 percent of death penalty convictions in the United States from 1973 to 2004 are estimated to be wrongful—and that is a conservative figure. Samuel R. Gross et al., “Rate of False Conviction of Criminal Defendants Who Are Sentenced to Death,” Proceedings of the National Academy of Sciences (2014): 5, doi: 10.1073/pnas.1306417111.
The development of DNA testing: The first DNA exoneration occurred in 1989. Innocence Project, “DNA Exonerations Nationwide,” accessed March 18, 2014, http://www.innocenceproject.org/Content/DNA_Exonerations_Nationwide.php.
The dim light: Innocence Project, “DNA Exoneree Case Profiles,” accessed March 18, 2014, http://www.innocenceproject.org/know/; Innocence Project, 200 Exonerated: Too Many Wrongfully Convicted (New York: Benjamin N. Cardozo School of Law, Yeshiva University), 14, http://www.innocenceproject.org/200/ip_200.pdf.
“The ghost of the innocent”: United States v. Garsson, 291 F. 646, 649 (S.D.N.Y. 1923).
There are corridors of injustice: We could continue the tour, entering an entire wing with cases of people who actually committed their crimes, but who never received the honest, unbiased process or the fair treatment they were promised. And beyond that we could pass through a nursery with all of the botched juvenile cases that ended up sealed and near misses where someone was incorrectly identified and pursued as a prime suspect up through trial only for the truth to be revealed by a bit of final luck. Innocence Project, “DNA Exonerations Nationwide�
��; Saul M. Kassin et al., “Police-Induced Confessions: Risk Factors and Recommendations,” Law and Human Behavior, 34 (2010): 3. And if we stopped we would hear the beams of the attic creak with the pressure of a mountain of plea bargains where no judge or jury ever weighed the evidence that would certainly have raised a reasonable doubt. Gross et al., “Rate of False Conviction,” 1.
1. The Labels We Live By ~ The Victim
Jerry Pritchett had stepped out: Charles J. Willoughby, Government of the District of Columbia, Office of the Inspector General, Summary of Special Report: Emergency Response to the Assault on David E. Rosenbaum (June 2006), 22.
There, between the bare ginkgo trees: Willoughby, Summary of Special Report, 18.
The sidewalk that lined: Selena Walker, OEA Matter No. 1601-0133-06, 4 (June 26, 2007), http://oea.dc.gov/sites/default/files/dc/sites/oea/publication/attachments/OEADecision_Walker_v_DCFEMS_06_26_07.pdf. Details about the house and neighborhood were collected using Google Maps.
As Jerry approached: Willoughby, Summary of Special Report, 18.
When Jerry asked him a question: Willoughby, Summary of Special Report, 18.
He wasn’t carrying a wallet: Willoughby, Summary of Special Report, 18.
She noticed that: Del Quentin Wilber and Debbi Wilgoren, “Medical Condition Suspected at First in Journalist’s Fall,” Washington Post, January 10, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/01/09/AR2006010901245.html; Willoughby, Summary of Special Report, 18.
He was trying to move himself: Willoughby, Summary of Special Report, 18.
Jerry placed one of his slippered feet: Willoughby, Summary of Special Report, 18.
Less than ten minutes: Willoughby, Summary of Special Report, 21.
Almost as soon as they started: Willoughby, Summary of Special Report, 21.
Claude thought that: Wilber and Wilgoren, “Medical Condition Suspected.”
This wasn’t a stroke: Willoughby, Summary of Special Report, 27.
The engine driver found: Willoughby, Summary of Special Report, 25.
They decided not to perform: Willoughby, Summary of Special Report, 4.
When one of the responding: Willoughby, Summary of Special Report, 35.
As a result, the cops: The police admitted that, as a result, they “did not get a close look at the man.” Willoughby, Summary of Special Report, 35.
According to protocol, they should: Willoughby, Summary of Special Report, 5.
The ambulance carrying emergency medical technicians: Willoughby, Summary of Special Report, 46.
“What we got?”: Willoughby, Summary of Special Report, 22, 39.
She wasn’t pleased: Willoughby, Summary of Special Report, 39.
The firefighters had noticed: Willoughby, Summary of Special Report, 4.
And neither of the EMTs asked: Willoughby, Summary of Special Report, 6.
Consequently, they loaded him: Willoughby, Summary of Special Report, 25.
Given her advanced training: D.C. Fire and Medical Services Department v. D.C. Office of Employee Appeals, 986 A.2d 419, 421 (D.C. 2010).
As the assistant EMT: Colbert I. King, “The Death of David Rosenbaum,” Washington Post, February 25, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/02/24/AR2006022401676.html; Willoughby, Summary of Special Report, 43, 45; “What Is the Glasgow Coma Scale?,” Brainline.org, accessed February 13, 2014, http://www.brainline.org/content/2010/10/what-is-the-glasgow-coma-scale.html. The Glasgow Coma Scale was developed to assess the consciousness of brain-trauma victims by assigning numerical values to the degree of eye opening (1–4), verbal response (1–5), and motor response (1–6). By adding up the three scores, clinicians arrive at a number that is used to classify the seriousness of the brain injury. In general, a total score of 3 to 8 is considered severe, 9 to 12 is considered moderate, and 13 to 15 is considered mild.
The assistant, though, classified him: D.C. Fire and Medical, 986 A.2d at 421.
The man’s inability: Willoughby, Summary of Special Report, 8.
The assistant skipped: Willoughby, Summary of Special Report, 6; King, “The Death of David Rosenbaum.”
Although Fire and Emergency Medical: D.C. Fire and Medical, 986 A.2d at 423 n. 1.
It was twice as far: Willoughby, Summary of Special Report, 8; D.C. Fire and Medical, 986 A.2d at 422.
The patient could sleep: D.C. Fire and Medical, 986 A.2d at 422.
When they arrived at Howard: Paul Duggan, “Report Scolds D.C. Agencies in Response to Assault,” Washington Post, June 17, 2006, http://www.washingtonpost.com/wp-dyn/content/article/2006/06/16/AR2006061601096.html.
He was pushed into the hallway: Duggan, “Report Scolds D.C. Agencies.”
The hospital staff didn’t know: Willoughby, Summary of Special Report, 8.
As the triage nurse later explained: Willoughby, Summary of Special Report, 53.
No one at the hospital performed: Willoughby, Summary of Special Report, 7.
She didn’t check his pupils: Willoughby, Summary of Special Report, 53.
Shining a light in his eyes: Willoughby, Summary of Special Report, 53.
“I saw he was not in distress”: Willoughby, Summary of Special Report, 53.
When she passed the man off: Willoughby, Summary of Special Report, 54.
And when the team leader: Willoughby, Summary of Special Report, 15, 55.
He was not having respiratory problems: Willoughby, Summary of Special Report, 56.
With no reason to rush: Willoughby, Summary of Special Report, 57.
At around 11:30 p.m., another nurse: Willoughby, Summary of Special Report, 56.
As they were moving the gurney: Willoughby, Summary of Special Report, 56–57.
That was sometimes a bad sign: Willoughby, Summary of Special Report, 56.
They repeated the rub: Willoughby, Summary of Special Report, 56.
The nurses couldn’t believe it: Willoughby, Summary of Special Report, 57.
The doctor saw the posturing: Willoughby, Summary of Special Report, 59–60.
What had seemed, a moment earlier: Willoughby, Summary of Special Report, 60.
They intubated the man: Willoughby, Summary of Special Report, 60.
His pupils were unequal: Willoughby, Summary of Special Report, 60.
The man was taken in: Complaint for Damages at 7, Rosenbaum v. District of Columbia, 2006 CA 008405 M (D. C. Super. Ct. dismissed Nov. 30, 2007).
It would be for naught: Complaint for Damages at 7, Rosenbaum.
David Rosenbaum, the award-winning: Todd S. Purdum, “David Rosenbaum, Reporter for Times Who Covered Politics, Dies at 63,” New York Times, January 9, 2006, http://www.nytimes.com/2006/01/09/national/09rosenbaum.html; Willoughby, Summary of Special Report, 65; Jordan v. United States, 18 A.3d 703, 706 (D.C. 2011).
The sixty-three-year-old: Brief for Appellant, Jordan v. United States, 18 A.3d 703 (2011) (No. 07-CF-340), 2010 WL 7359337, at *2; Purdum, “David Rosenbaum”; Wilber and Wilgoren, “Medical Condition Suspected.”
He had a wife: Purdum, “David Rosenbaum.”
He lived right around the block: “3824 Harrison Street NW in Washington-Friendship Heights Sold for $1,000,000,” Blockshopper.com, December 18, 2006, http://dc.blockshopper.com/sales/cities/washington-friendship_heights/property/18510064/3824_harrison_street_nw/1351355. Details about the house and neighborhood were collected using Google Maps.
The major breaks: Willoughby, Summary of Special Report, 37.
The lead officer: Willoughby, Summary of Special Report, 35.
When he visited the home: Willoughby, Summary of Special Report, 35.
However, it wasn’t until: Willoughby, Summary of Special Report, 35–36.
This was a possible robbery: Willoughby, Summary of Special Report, 35–36.
After seeing coverage: Michael Janofsky, “Suspect Said to Confess Killing Times Reporter, New York Times, January 13, 2006, http://w
ww.nytimes.com/2006/01/13/national/13david.html?ref=daviderosenbaum&_r=0; Jordan, 18 A.3d at 706; Janofsky, “Suspect Said to Confess.”
Hamlin later claimed that: Brief for Appellee, Jordan, 2010 WL 7359345, at *9, 24–25.
According to Hamlin: Brief for Appellee, Jordan, 2010 WL 7359345, at *5.
He noticed the hard plastic pipe: Michael Janofsky, “Official Washington Pays Tribute to Reporter Who Was Killed,” New York Times, January 14, 2006, http://www.nytimes.com/2006/01/14/national/14david.html?ref=daviderosenbaum&pagewanted=print; Brief for Appellee, Jordan, 2010 WL 7359345, at *5–6.
As they drove: Brief for Appellee, Jordan, 2010 WL 7359345, at *6.
After they parked: Brief for Appellee, Jordan, 2010 WL 7359345, at *6.
When David passed by: Brief for Appellee, Jordan, 2010 WL 7359345, at *6.
The force of the blows: Brief for Appellee, Jordan, 2010 WL 7359345, at *10.
With David on the ground: Brief for Appellee, Jordan, 2010 WL 7359345, at *6.
It was a good score: Brief for Appellee, Jordan, 2010 WL 7359345, at *6–7.
Leaving the area: Brief for Appellee, Jordan, 2010 WL 7359345, at *7.
They were back: Brief for Appellee, Jordan, 2010 WL 7359345, at *42.
Visit the Supreme Federal Court: Michael Allen Dean, “Images of the Goddess of Justice,” last modified April 1, 2013, http://mdean.tripod.com/justice.html.
As the great champion: “Brief History of William Penn,” USHistory.org, last accessed February 8, 2014, http://www.ushistory.org/penn/bio.htm; William Penn, Some Fruits of Solitude in Reflections and Maxims (London: Freemantle, 1901), 80.
Every man or woman: The promise of equal justice is broadly embraced. Geoffrey P. Goodwin and Justin F. Landy, “Valuing Different Human Lives,” Journal of Experimental Psychology: General 143, no. 2 (2014): 778, doi: 10.1037/a0032796. The United States Declaration of Independence makes clear that “all men are created equal.” Goodwin and Landy, “Valuing Different Human Lives,” 778. And the point is echoed in numerous other sources, including the United Nations’ Universal Declaration of Human Rights (“All human beings are born free and equal in dignity and rights.”). Goodwin and Landy, “Valuing Different Human Lives,” 778.
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