Empirical criminal law scholarship and the shift to institutions.

• Author: Weisberg, Robert
• Position: Seventh Annual Conference on Empirical Legal Studies: The Empirical Revolution in Law

INTRODUCTION I. DESIGNING PUNISHMENT II. DESIGNS OF DECISIONMAKING A. Choosing Decisionmakers B. Structures of Cost Bearing in Decisionmaking C. Empirical Opportunism and Institutional Experimentation III. STAGE PROCESSING AND THE LEGACY OF MCCLESKEY CONCLUSION INTRODUCTION

The broadly defined field of "criminal law" or "criminal justice" has always provided ripe material for empirical studies, but in assessing the most interesting new research from the Seventh Annual Conference on Empirical Legal Studies (CELS), it is useful to underscore the word "legal" and thereby demarcate a more specific category of research. Legal academics have long benefited from the venerable line of social science research on the causes of crime or changes in crime rates. This work, as recently exemplified by inquiries into the causes of America's dramatic post-1990 decline in crime, (1) usually involves social or other factors often exogenous to the legal system. (2) Another tradition of research involves the study of broad penal legislation--such as the death penalty (3) or gun laws (4)--where empiricists test the efficacy of laws in accomplishing goals that are uncontested as a matter of social policy or morality (e.g., protecting victims from violent crime). This research has tended to implicate empirical studies in volatile public and cultural debates at too high a level of generality (often with highly equivocal results) to bear on the operations of criminal justice systems. (5)

While acknowledging the roughness of some of these distinctions, (6) I will use some of the exemplary papers presented at CELS to describe and assess a trend toward more empirical "legal" research--papers that help demonstrate how statistical findings can inform government in the context of institutional decisions within the formal legal system. This research, focusing on the political economy of criminal justice agencies, examines legal decisionmaking under the constraints of constitutional demands, managerial and fiscal challenges, and, sometimes, the peculiar deontological forces that distinguish criminal law from other forms of regulation. Most notably, these studies examine the unavoidable discretion that the legal system invests in officials at key decision points, with special attention to prosecutors--the most important and unexamined of all categories of officialdom. They identify patterns and outcomes at early and low-level stages of adjudication, especially where choices of both means and ends implicate nonutilitarian values. In so doing, this research frames and informs questions for the officials who delegate, supervise, or exercise discretion, but it ultimately cannot answer the questions it poses. (7) Empirical research can provide what can be measured, but criminal law consists of more than just the measurable. At some point, research can do no more than arm decisionmakers with a sharpened sense of the scope and nature of the residual factors that empirics cannot measure with the reassurance of precision.

In this Essay, I will review, describe, and assess this trend through some CELS examples sorted into some of the key varieties of institutional empirical research about criminal justice. Part I considers how empiricists can inform the design of penal and sentencing systems through microanalysis. Such work takes advantage of quasi-experiments in the administration of criminal justice that exploit very specific legal changes under the methods of regression discontinuity, testing out marginal instances of crime reduction and efficiency, and cautiously generalizing upward. Part II considers research that evaluates (and can recommend) structural or bureaucratic changes in criminal justice administration, including selection of officials and allocation of cost bearing among agencies or levels of authority. Part III turns to the crucial phenomenon of official discretion as it is exercised at distinct and incremental stages of the criminal justice process. Empiricists have turned to analyzing how such discretion has an often hidden, and often cumulatively self-reinforcing, effect on the ultimate criminal law outcomes traditionally studied.

While numbers can teach us some things, in all these types of research--especially the work that focuses on discretion--the nature of official decisions demands attention to immeasurable moral and constitutional restraints. Whether realizing it or not, the researchers in this last area are responding to a great and often unacknowledged challenge to criminal empirical legal studies. I refer to the United States Supreme Court's warning in 1987 in McCleskey v. Kemp (8) that an honest empirical inquiry into racial and other inequities in any key part of a criminal justice system can lead to knowledge that is dangerous because it induces an existential crisis in those who would then reform that system.

1. DESIGNING PUNISHMENT

   Along with the great American crime drop of the 1990s, perhaps the most notable general subject of criminal justice commentary in recent years has been the anomalous size of the American prison population, which has been denounced in political and moral commentary under the evocative term "mass incarceration." (9) The sharp and sustained rise in the rate of incarceration that was simultaneous with the 1990s crime drop has naturally led to empirical research about its causes and cost effectiveness. This research has necessarily faced daunting questions of endogeneity--that is, questions about the relationship between the crime rate and the size of the prison population, or about whether the increase in incarceration is itself the major cause of the crime drop. (10) The national embarrassment of mass incarceration has raised moral and political concerns that defy any measurement. (11) But even in the realm of the theoretically measurable, it has forced us to consider complicated questions of "cost," including institutional costs on the government side but also the devilishly difficult question of cost on the individual's side in terms of the true lifetime consequences of incarceration for offenders and their families. (12)

   Thus, much recent empirical research examines the structures of punishment that attend to both quantifiable and nonquantifiable values but also necessarily turn to the traditional litany of purposes of punishment (deterrence, incapacitation, etc.) by which sanctions are to be justified and tested. (13) Recent decades have seen various phases of this scholarship, including the debate about "selective incapacitation" as a parsimonious design for reducing crime. (14) But over the years, in both abstract economic modeling and ground-level empirical studies, most of the utilitarian attention has been placed on the area of general deterrence. (15) Here, the landmark is the work of economist Gary Becker. Becker disdained explanations of criminal behavior rooted in notions of inherent malevolence, deviance in individuals, or social causes, instead positing a ruthlessly utilitarian model of the encounter between rational self-interest and the price of crime, which he calculated as a function of the probability and severity of sanctions. (16) Becker's work led to the insight that in equilibrium, criminals are more likely to be the risk-preferrers among us--that is, more sensitive to changes in probability, or "certainty," than severity. (17) Those general principles having been long established, the challenge of researchers has been to identify the specific legal rules and structures that deter most efficiently, and researchers who venture into this area know the sobering results. At least once we recognize the baseline of our very strict penal system, the evidence of marginal deterrent effects is very hard to establish. (18) And since the more weighted certainty side of the equation implicates stages of criminal justice decisionmaking and institutional mechanisms rather than just legislated sentences, general deterrence studies, as discussed below, implicitly force us to study those ground-level mechanisms.

   One phase of this scholarship, motivated in part by the worry over mass incarceration, has been the reconsideration of the transition from the pre-1980 mode of unstructured and indeterminate sentencing to the more formulaic and rigid "determinate" schemes, (19) especially in the controversial example of the federal sentencing guidelines enacted almost thirty years ago. (20) The most recent focus has been on the reconsideration, by both academics and lawmakers, of the move to more determinacy through the medium of the proposed new Model Penal Code (MPC) sentencing rules. (21) Debate over reconsidering modern "determinate" structures has been an important test of the relevance of empirical legal studies. (22) The new MPC proposal has provoked various analyses of different sentencing schemes in regard to their effects on prison size. The drafts of, and commentaries on, the new MPC rules refer to empirical studies about the choice between fairly rigid and determinate statutes and guidelines and more flexible structures that place much more discretion in a parole board or other administrative branch officials. (23) Weighing in on this debate and responding to laments about mass incarceration, Kevin Reitz, Reporter for the MPC's revision of its sentencing rules, himself has proffered empirical evidence that more fixed and determinate rules--generally lauded by the draft--are not associated with higher imprisonment rates, (24) while at the same time carefully taking no position on whether any particular degree of imprisonment is inherently desirable. (25)

   To squeeze this heterogeneous body of work into a descriptive category, let us think of it as "system design" research that attempts cost-benefit analysis of punishment schemes (both sentencing and correctional policies). It looks to traditional utilitarian rationales for punishment not as philosophical subjects, but as...