Science, Religion, Politics, and Stem Cell Research

In a new paper on SSRN, Ed Fallone explores one of the most contentious policy questions in the field of public bioethics: whether and under what constraints the federal government ought to fund stem cell research.  Ed provides a thorough overview of the history and competing viewpoints in the debate.  He also draws interesting parallels between the current controversy and the debates over funding AIDS research in the 1980s.

Because religious beliefs inform much of the stem-cell debate, Ed’s paper raises difficult and important questions regarding the proper role of religion in shaping federal science policy.  Ed argues that elected officials, not scientists, should ultimately make the decisions.  In order to guide the decisionmaking, he proposes two principles: “1) the federal government should be the preferred source of funding for basic medical research and 2) government funding decisions should not favor one religious perspective over another.”  Although not everyone will agree with the second principle, Ed argues that it is more consistent with the design of our constitutional system.  He writes:

The Madisonian separation of church and state is an integral part of the limited government created under the United States Constitution, and maintaining that separation is an ethical good that our elected officials must weigh along with other ethical goods such as the protection of vulnerable populations and the promotion of justice.

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Doubts About Deference to Police Hunches

Over the course of the past decade or so, legal scholars have been paying increasing attention to psychological research on cognition and decisionmaking.  In general, this has meant that scholars have become more sensitive to the common sorts of cognitive bias that have the potential to warp legal decisionmaking.  But, inspired in many cases by Malcolm Gladwell’s 2005 best-seller Blink: The Power of Thinking Without Thinking, another line of psychology-influenced legal scholarship seeks to harness the insights available through subconscious mental processes.  As Gladwell demonstrated, hunches can be amazingly accurate in many contexts, particularly hunches by experts.  This has led to arguments that courts ought to be quite deferential to police officers seeking warrants or testifying at suppression hearings — demanding rigorous justifications for officers’ suspicions, the argument goes, might cause officers not to rely on their hunches as much, which might be detrimental to effective policing.

Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010).  Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods.  As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues. 

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SCOTUS Says Judge May Consider Post-Sentencing Rehabilitation at Resentencing

In a new decision earlier today, Pepper v. United States (No. 09-6822), the United States Supreme Court ruled that federal district judges may consider post-sentencing rehabilitation when a case is remanded for resentencing.  This may sound like a very technical question of criminal procedure, but the facts in Pepper nicely illustrate the human dimension to the question.  Pepper was convicted of meth trafficking and faced a Guidelines sentence of 97-121 months.  The judge departed downward, however, and imposed a sentence of 24 months.  In June 2005, the Eighth Circuit reversed and remanded for resentencing.  In the interim, Pepper completed his 24 months and was released.  In May 2006, the district held a resentencing hearing, at which much evidence was presented of Pepper’s successful post-sentencing rehabilitation, including completion of drug treatment, commencement of college courses, and part-time employment.  Pepper’s probation officer recommended that the original sentence be reinstated, and the district judge agreed.  The government appealed, and the Eighth Circuit again reversed, ruling that post-sentencing rehabiltiation was an impermissible sentencing factor.  The case then bounced around inconclusively in the court system for several years before finding its way to the Supreme Court.  Pepper, still free, has apparently continued to do quite well in school and work.  The question now is whether he must nonetheless be returned to prison after five years in the community, which would likely wreck much of what he has accomplished for himself and his family.

In holding that post-sentencing rehabilitation is a permissible consideration at resentencing, the Court addressed a couple of notable legal questions.  What is perhaps most remarkable about Pepper, however, is not the legal analysis, but the prefatory rhetoric with which it was framed.

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