Violence risk assessment routinely takes place in criminal sentencing, in the civil commitment of people with mental disorder, and in the commitment of sexually violent predators. In the past, courts rarely have had to confront the legitimacy of using specific risk factors for violence, because actuarial instruments with scientific validity at assessing violence risk did not exist. Now they do. Among the empirically valid risk factors risk factors that are candidates for inclusion on these instruments are those that pertain to what the person is (age, gender, race/ethnicity, and personality), what the person has (major mental disorder, personality disorder, and substance abuse disorder), what the person has done (prior crime and violence), and what has been done to the person (being raised in a pathological family environment and being physically victimized). This Article argues that in criminal law, with its emphasis on blameworthiness for actions taken, the use of scientifically valid risk factors is properly constrained to those that simultaneously index blameworthiness, i.e., to the defendant’s prior criminal conduct. In law authorizing the involuntary civil hospitalization of people with mental disorder—a legal determination in which blameworthiness plays no part—the use of violence risk factors should be unconstrained, except for the use of classifications subject to strict Equal Protection scrutiny, which here is limited to the individual’s race or ethnicity. Finally, if commitment as a sexually violent predator is properly categorized as civil commitment, the use of violence risk factors in implementing such commitments should parallel the use of violence risk factors in traditional civil commitment. Disagreement with the substantive merits of sexually violent predator statutes does not justify depriving those statutes of the only kind of evidence—empirically-validated actuarial violence risk assessment—that can effectuate their controversial goals.
Volume 92
What Makes the D.C. Circuit Different? A Historical View
A version of the Ola B. Smith Lecture delivered at the University of Virginia School of Law on April 20, 2005.
The Writing on the Wall: Miranda’s “Prior Criminal Experience” Exception
The Miranda decision requires that police read suspects a set of warnings to ensure that the suspect knows his rights and only waives those rights “voluntarily” and “knowingly.” This Note proposes a “prior criminal experience” exception to Miranda, by which an incriminating statement made outside Miranda may be admissible at trial in certain circumstances. Under the new view of the law, just as today, law enforcement agents would be required to administer Miranda warnings to every suspect before custodial interrogation. However, should a law enforcement officer negligently fail to give the warnings, use of an incriminating statement against a suspect in court would not be barred absolutely. Rather, the statement might be admissible depending on the suspect’s knowledge of his rights, gained through prior criminal experience.
Essentially, the trial court would use a totality-of-circumstances test to determine if the suspect knew his rights at the time of his most recent statement to police. Compulsion still would be presumed in the absence of Miranda warnings, so the burden would fall on the government to show that the defendant had the constitutionally required knowledge. If the court finds the suspect had the requisite knowledge, a police officer’s negligence in not Mirandizing him is immaterial, and the court will allow the confession into evidence. If the court finds that the suspect does not have knowledge of his rights, the prong is not met, and the court will exclude the incriminating statement. The “prior criminal experience” exception only applies to the “knowledge” prong of Miranda; the voluntariness inquiry would not change. The exception ensures that courts do not allow the constitutionally required Miranda warnings to give an advantage to criminal suspects where none is needed.