Legal Commentary

I?ve been reading, with some discomfort, a sort of manifesto for a self-proclaimed ?new paradigm? in criminal justice.  Funded by the National Institute for Corrections and issued in its present form in April 2010, the document is entitled A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems.  A copy is available here.

For better or worse, there is reason to think that the Framework may significantly affect the administration of criminal justice in many communities.  The document is merely ?Phase I? of the ?Evidence-Based Decision Making Initiative? (website here).  Phase II involves a sort of roll-out to seven jurisdictions (one of which is Milwaukee County, which is how I came to learn about the Framework), with support and evaluation provided by several major institutional players in the criminal justice field.  In short, the Framework is not merely an academic exercise, but part of what appears to be a sophisticated campaign with substantial resources at its disposal.

At one level, it?s hard to be opposed to ?evidence-based? anything.  What?s the alternative?  Reliance on untested intuition or folk wisdom?

Without a doubt, there is much room for more empirically sound decision making in the criminal justice system.  It is very frustrating to me, for instance, to see young offenders sent to prison for what is effectively the remainder of their lives in the name of incapacitation, based on little more than a hunch that someone who does something horrible at age 20 will continue to be a grave threat to society at age 50, 70, or 90.  Sex offenses are, I think, an area in which we are particularly in need of more evidence-based decision making.  (For an example of a case in which the sentencing judge?s powerful emotional response to a sex crime seemed to overwhelm a rational assessment of the evidence, see this post.)

So, once we have figured out what our objectives are and how they should be prioritized, I?m all for using data and empirical analysis to get us where we want to go in the most efficient manner.

My problem with the Framework is that, under the banner of evidence-based decision making, a particular view of the objectives of the criminal justice system is being advanced with little apparent reflection or justification.  Here?s how the Framework describes its ?vision of the communities of tomorrow?: ?stronger and more vibrant as a result of less crime, fewer victims, restored families, and offenders engaged in healthy lifestyles? (p. 2).

Again, you might ask, who could object to this vision?  It is indeed an attractive one ? until you remember that the intended instrument is the criminal justice system.  Where is ?justice? in this vision, or the ideal of holding offenders accountable?  And isn?t it a bit odd, even a little frightening, to think that the criminal justice system ? the ultimate embodiment of the state?s coercive power, with its awesome machinery of social exclusion and stigmatization ? is being used to promote ?healthy lifestyles.?

There is no question that the single, dominant purpose of the Framework is to reduce criminal victimization ? and, even more specifically, to reduce the rate of recidivism.  The Framework promotes the so-called ?1 Million Fewer Victims Campaign,? a part of the Evidence-Based Decision Making Initiative, and a core portion of the Framework is a section entitled ?7 Ways to Reduce Recidivism.?

Ideologically, the Framework seems a perfect embodiment of what Jonathan Simon calls the ?Crime Deal,? which, Simon argues, supplanted the New Deal as a central organizing principle of American political and social life in about the 1960s.   In a sense, the Framework doesn?t give us a new paradigm so much as a refinement of an existing paradigm.

There are, to be sure, very good reasons for us to seek to reduce social risk.  As Simon argues, however, our dominant response to risk today ? through the rhetoric and legal processes of criminal punishment ? is quite historically and culturally contingent.  There is no need for us to think about risk as we do, and there are real costs to doing so ? mass incarceration, social isolation in gated communities and distant suburbs, and a pervasive sense of fear that no amount of punishment can seem to dispel.

We ought to be concerned about the Framework, then, for its unthinking reinforcement of the prevailing view that social risk ought to be conceived primarily as a criminal-justice problem.

The authors of the Framework would doubtlessly respond that they do not support mass incarceration and other related pathologies of the Crime Deal.  They may endorse use of the criminal-justice system to address risk, but that is not the same thing as endorsing punishment.  Indeed, they make a point of advocating the use of ?more carrots than sticks? ? ?Positive reinforcement should be provided at a rate of four reinforcers for every expression of disapproval (or sanction)? (p. 15).

Here, I think the authors are being a little naive about the nature of the tool they are using.  It is stigmatizing to brand someone as a criminal, even if our motivation is that the person will eventually achieve a ?healthy lifestyle? as a result of our intervention.  And I fear public support will always be quite limited for giving ?positive reinforcers? to those bearing the stigma of crime.  Indeed, even as the rhetoric of forward-looking risk management has become pervasive in the criminal-justice system, the rhetoric of condemnation remains deeply engrained in the courthouse culture, and I suspect that many steeped within that culture will not easily adopt the optimal 4:1 ratio of positive reinforcement to punishment.

For anyone who has spent some time studying the drug court movement, it will be quite clear that drug-court ideology deeply influences the Framework.  Like drug courts, the Framework is presented as an alternative to the penal excessiveness that marks current criminal-justice practices.  However, as I argued in this article, there are both winners and losers in the drug-court world ? some groups of offenders will likely end up experiencing harsher treatment as a result of the implementation of a drug court.  This follows from the decision to use criminal-justice institutions and processes in order to modify lifestyle in a much more systematic fashion than is done through conventional criminal case-processing.  Whatever else may be said for or against drug courts, they do not unambiguously soften an overly harsh criminal-justice system.

By like reasoning, I doubt that implementation of the Framework would ultimately be capable of diminishing our over-reliance on incarceration ? and it might even make things worse.

This brings me to the heart of what I find troubling about empirical, risk-based approaches to the criminal-justice system: these approaches cannot tell us how much risk is too much.  No amount of evidence will ever tell us that any given offender is 100 percent safe.  And, as long as there is any risk, the logic of evidence-based decision making provides no clear, non-contingent limitation on what can be done to reduce the risk.  To be sure, cost-benefit analysis may in theory provide some sort of contingent check on what we do, but the numbers are always malleable, and who is going to give "criminals" the benefit of the doubt?

(Nor, I might add, can any empirical test ever tell us that any given law professor, judge, or risk-assessment consultant is 100 percent safe.  We, however, do not bear the stigma of a criminal conviction and are thus spared the indignity of having our lifestyle regulated so as to reduce our risk to others.)

Any attempt to re-order the criminal-justice system more systematically around the risk-reduction ideal must squarely confront the emotional dimension of punishment, and particularly those ugly emotions to which Nietzsche attached the label ressentiment.  These, I think, are pervasive in our culture; refracted through them, risk- (or harm-) reduction can take on a vicious cast.

And, of course, race must also be squarely confronted.  As Bernard Harcourt has argued, ?[R]isk today has collapsed into prior criminal history, and prior criminal history has become a proxy for race.?  Evidence-based decision making seems more likely to exacerbate than to lessen racial disparities in the criminal-justice system.