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This review focuses on government use of technology to observe, collect, or record potential criminal activity in real-time, as contrasted with "transaction surveillance" that involves government efforts to access already-existing reviews (Brayne 2018, Ridgeway 2018). Even so limited, surveillance technologies come in many guises, including closed-circuit television, automated license plate and facial readers, aerial cameras, and GPS tracking. Also classifiable as surveillance technology are devices such as thermal and electromagnetic imagers that can "see" through walls and clothing. Finally, surveillance includes wiretapping and other forms of communication interception. The following discussion briefly examines the limited evidence we have about the prevalence and effectiveness of these technologies and then describes the law governing surveillance, focusing principally on constitutional doctrine, and how it might-and might not-limit use of these technologies in the future.

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The Competence Assessment for Standing Trial for Defendants with Mental Retardation (CAST-MR) was developed to assess competence to stand trial in defendants with Intellectual Disability. Although it remains the only validated instrument for this population, previous research has suggested it is rarely used by forensic examiners, a finding our survey of legal cases confirms. Initial validation studies provided some support for the instrument's reliability and validity. However, in both these and subsequent studies, there were significant limitations with respect to the size and representativeness of study samples, and therefore the associated interpretation of scores, such that questions remain as to whether the tool adequately assesses competence to stand trial in this population. In this paper, we review the research on the CAST-MR, discuss the strengths and limitations of the instrument, and debate its legal admissibility.

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Statistics are increasingly playing a crucial role in criminal cases. As the articles in this Special Issue illustrate, they can form the principal basis for expert testimony (e.g., with respect to risk assessments), heavily influence decisions about policy (e.g., constitutional doctrine governing police stop-and-frisk practices), and help courts evaluate the admissibility of expert testimony (e.g., via proficiency testing). Unfortunately, courts have not always been up to the task of analyzing the value of statistical analysis. In the course of introducing the articles in this issue, this article provides some examples of how statistical information can be misconstrued and suggests several reasons why judges may be reluctant to engage with such information.

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In this article, we report the results of a two-part investigation of psychological assessments by psychologists in legal contexts. The first part involves a systematic review of the 364 psychological assessment tools psychologists report having used in legal cases across 22 surveys of experienced forensic mental health practitioners, focusing on legal standards and scientific and psychometric theory. The second part is a legal analysis of admissibility challenges with regard to psychological assessments. Results from the first part reveal that, consistent with their roots in psychological science, nearly all of the assessment tools used by psychologists and offered as expert evidence in legal settings have been subjected to empirical testing (90%). However, we were able to clearly identify only about 67% as generally accepted in the field and only about 40% have generally favorable reviews of their psychometric and technical properties in authorities such as the Mental Measurements Yearbook. Furthermore, there is a weak relationship between general acceptance and favorability of tools' psychometric properties. Results from the second part show that legal challenges to the admission of this evidence are infrequent: Legal challenges to the assessment evidence for any reason occurred in only 5.1% of cases in the sample (a little more than half of these involved challenges to validity). When challenges were raised, they succeeded only about a third of the time. Challenges to the most scientifically suspect tools are almost nonexistent. Attorneys rarely challenge psychological expert assessment evidence, and when they do, judges often fail to exercise the scrutiny required by law.

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At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability, and an aggravating circumstance because of its association with crime risk. In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place. Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent - or, in the case of proprietary "black box" algorithms, not transparent at all. For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age. We argue that this type of fact must be disclosed to sentencing authorities in an easily interpretable manner so that they understand the role an offender's age plays in the risk calculation. Failing to reveal that a stigmatic label such as "high risk of violent crime" is due primarily to a defendant's young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.

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Risk assessment instruments (RAIs) are generally thought to be more accurate and less susceptible to bias than the type of seat-of-the-pants risk assessment in which judges and parole boards have traditionally engaged. But RAIs bring with them their own set of controversies. This article will discuss three principles - the fit principle, the validity principle, and the fairness principle - that might govern use of RAIs. After providing examples of RAIs, it elaborates on how these principles would affect sentencing, parole and pretrial detention. In the course of doing so, this article also introduces the contributions in this Special Issue of Behavioral Sciences & the Law on "Risk factors and criminal justice."

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This article is a revision of an address made at the 2016 annual conference of the American Psychology-Law Society, in honor of receiving that organization's Distinguished Contribution Award. It sets forth a vision of the criminal justice system, and in particular the sentencing process, that is oriented toward preventive, rather than retributive, justice. After explaining preventive justice - a concept that in one form or another has been discussed for decades - and why it is worth revisiting at this time, the article proposes a number of hypotheses about the assumptions underlying preventive and retributive justice regimes. In the course of doing so, it references how the articles in this Special Issue of Behavioral Sciences and the Law address these hypotheses, and calls for further research from psychologists and other social scientists designed to test the fundamental assumptions of criminal law.

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Direct-to-consumer genetic testing (DTC-GT) companies have proliferated in the past several years. Based on an analysis of genetic material submitted by consumers, these companies offer a wide array of services, ranging from providing information about health and ancestry to identification of surreptitiously-gathered biological material sent in by suspicious spouses. Federal and state laws are ambiguous about the types of disclosures these companies must make about how the genetic information they obtain is collected, used, and shared. In an effort to assist in developing such laws, this Article reports a survey of the privacy policies these companies purport to follow. It canvasses ninety DTC-GT companies operating in the United States and provides a detailed analysis of whether and to what extent those policies inform consumers about how their genetic information will be used and secured, with whom it will be shared, and a host of other issues. Using the Federal Trade Commission's articulation of the Fair Information Practice Principles and the agency's proposed Privacy Framework as the baseline, we conclude that most policies fall well short of the ideal.

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A number of laws that are associated with deprivations of liberty, including the insanity defense, civil commitment, guardianship of the person and numerous competency doctrines in the criminal context, require proof of mental disability as a predicate. The Convention on the Rights of Persons With Disabilities commands signatory states to eliminate that predicate. Summarizing principles set out in my book Minding Justice: Laws That Deprive People With Mental Disability of Life and Liberty, I explain how this seemingly radical stance can be implemented. Specifically, this article proposes adoption of an "integrationist defense" in the criminal context, an "undeterrability requirement" when the state seeks preventive detention outside of the criminal process, and a "basic rationality and self-regard test" for incompetency determinations. None of these proposals requires proof of a mental disorder as a predicate condition.

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This article argues that indeterminate sentencing is the optimal means of preventing recidivism among sex offenders, both as an instrumental matter and jurisprudentially. Once a person is convicted of an offense, the duration and nature of sentence should be based on a back-end decision made by experts in recidivism reduction, within broad ranges set by the legislature. This position is defended against a number of objections, including claims that such a system relies on flawed risk assessments, ignores societal views of justice, denigrates offenders and victims, undermines deterrence and norm enforcement, depends too heavily on costly, uneven and demoralizing risk management schemes, and, as a result of one or more of these objections, is unconstitutional.

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