Legal Commentary

District Judge: I Don?t Trust Psychologists, Who Are ?All Over the Board? ? But My Guess About Genetics ?Fifty Years From Now? Is Rock-Hard Science

By Eugene Volokh

OK, that?s a bit of an exaggeration of what the district judge said, but not much. Prof. Nita Farahany (Law & Biosciences Digest) has the scoop, and a link to the decision (which came in late January). An excerpt from Prof. Farahany?s post:

The Defendant in this case, convicted of possession of child pornography, was given an ?unreasonable? sentence based on the judge?s invented genetic theory that the defendant?s incorrigible genes made him act the way he did, and that there was nothing he could do about it.... [The Second Circuit] took the extraordinary measure of vacating the sentence and remanding the case to a different judge.

Note that the Second Circuit expressly said that the judge didn?t have to trust psychologists if he didn?t want to, and could look at the evidence that this defendant was indeed likely to repeat his offenses (there was some in the record). Nor did the Circuit hold that real evidence of a defendant?s genetic predisposition couldn?t be used (an interesting question on which I don?t think there?s a settled answer). But the court rightly said that speculation about what genetics will find 50 years from now can?t be part of the decision.

Full post as published by The Volokh Conspiracy on March 24, 2011 (boomark / email).