The head of the public defender’s office got an email with a modest request:
I am a Professor at the University of Pennsylvania Law School and I am writing to see whether you would be interested in collaborating on a research project aimed at improving plea bargain outcomes and reducing disparities.
In previous work, I have found evidence of substantial disparities in public defender outcomes, primarily due to differences in plea bargaining. With this project, my colleague Megan Stevenson and I want to test a new tool that may improve plea bargain outcomes through the provision of more information to public defenders.
We have built a predictive tool that can estimate the range of potential case outcomes for a client based on certain characteristics (offense, criminal history, etc.). We believe this tool may augment defender experience in deciding when to take a deal and when to push for a better one. This could be particularly useful for defenders with less experience. It could also help a defender demonstrate to a skeptical client that they are getting a good deal.
The key to this project is finding a public defender’s office to partner with to establish the efficacy of the new software. This will involve randomizing which PD’s receive the tool initially, and which present the information to clients.
We are applying for funding for the project this month, so if you might be interested, I would very much appreciate it if you could let me know this week, so that we can begin the discussion.
Thank you for your time and I look forward to hearing from you.
David S. Abrams
It’s understandable that a law professor wants to use actual living poor defendants to validate his predictive tool. Such interests, tools, are very much in vogue, given the appreciation of empiricism, the expectation of technology as the future of the law and legal practice, and the scholarly pursuit of newer, better ways. It will certainly make for a great law review article, and perhaps even a new business that will be hugely successful for its owners, and even beneficial for its intended audience.
It’s perfectly understandable for David Abrams to ask.
And it’s perfectly understandable for the public defender he’s asked to mutter, “is he fucking nuts?”
These aren’t guinea pigs, lives of such utter inconsequence, that they can be laid to waste in the process of validating this predictive tool, whatever the hell that is supposed to mean. Nothing in the email begins to explain how well-conceived, or utterly idiotic, this tool might be. Abrams’ background offers little comfort.
- Ph.D. (Economics) – MIT – ’06
- M.S. (Physics) – Stanford – ’01
- A.B. (Physics) – Harvard – ’98
No, he’s not a lawyer. No, he didn’t go to law school. No, he’s never held a defendant’s hand before the cell door clangs shut, not to reopen for a few decades. But then, that’s not where Abrams’ interested lie:
David Abrams is one of the leading young economists working in empirical law and economics. His work covers a range of topics, tied together by goal of understanding and measuring how individuals respond to incentives in various legal contexts. Criminal justice is one of his major areas of expertise, where Abrams has investigated a variety of questions, including whether longer sentences deter crime, how defendant race impact judicial decisions, to what extent attorney skill affects case outcomes, and how much individuals value freedom.
How “criminal justice” is one of Abrams’ “major areas of expertise” is something of a mystery. He possesses no apparent skill, by training or experience, that relates in any way to criminal law. What his background suggests is that his mad skillz relate to the combination of empiricism and technology. Criminal law may be his “passionate interest,” and he may be very well intentioned in pursuing it in conjunction with his background, but he is about as far away from being an expert as anyone could possibly be.
What makes me say such a harsh thing about an academic who clearly wants to apply his actual training to a cause he can only see from a great distance? The fact that he sent this email without the recognition that he is asking public defenders to put their clients at risk, actual human lives at risk, to play with this Ivory Tower toy.
But what if it works? Wrong question. What if it doesn’t? Public defenders can’t volunteer to turn their clients into mice in some dilettante’s maze. They can’t sell out their duty to their clients to help some self-proclaimed crim law expert figure out if his baby is unbearably ugly. And if David Abrams was even remotely as much of an expert as he claims to be, he would know this. He would never have asked public defenders to risk their clients to validate his toy. He would know that a lawyer does not offer up his client’s life because some guy sends him an email about his mystery tool.
Does that make David Abrams a dangerous person? Why yes, it does. But he’s not necessarily the most dangerous person in this situation. Even worse than some academic dilettante who has nothing to recommend his qualifications in criminal law is the public defender who would receive his email and respond, “sure, why not?”
Because your duty is to your clients, not Abrams’ validation of his new baby, that’s why not. The only way academics like Abrams can combine their ignorance of the responsibility of a public defender with their adoration of technology and get away with it is when someone charged with the representation of other human beings is even less cognizant of where his duty lies. The poor are not fodder for empirical experiments. Their lives are not expendable to fill an academic’s needs.
And yet, you ask, what if Abrams’ predictive tool is a good thing, a great thing, that can help thousands of defendants? Take a risk with your own life if you want, but no public defender, no lawyer, can play with the life of his clients to find out. It’s nuts.