Friday, August 11, 2006

Law, Social Science, and Sentencing

Reeeaalllyyy nice guest post up right now at Empirical Legal Studies by Richard Lempert extolling the more frequent conjoining of law and social science in recent years. It's one of several on the theme he's had as a guest there this week (so go read them all) and outlines the troublesome but evolving background of the partnership of the disciplines. He ends with a projection of where the movement might go:

"What are the modern cutting edge trends in the social sciences that we should now be attending to? Here are four that I draw from my NSF experience. The first is greater attention to space using GIS systems and other mapping and information integration technologies. A second is agent based modeling: specifying parameters of human behavior at the individual or agent level, and through simulations tracing out and exploring the possible underpinning of otherwise impossible to predict outcomes [ed. note: what criminology will be a generation from now if some upstart with tech skills in that field will just put complexity theory and crim theory together because the concepts like "tipping points" already have a lot of affinity]. A third is network analysis, exploring the implications of different links between people and/or organizations for robustness to disruption, coalition formation, information flows and the like [ed.note: what will come after the upstart]. The fourth is using fMRI scans in experimental studies that uncover relationships to brain and behavior. All have obvious connections to problems that concern lawyers. So if you want to create a cutting edge for legal scholarship, forget the analyses that SPSS or STATA [ed.note: to non-stat types, statistical software packages] enable and move into one of these empirical research areas. Just drop a footnote that you heard it here first."

I'm very encouraged that he and ELS have done such a good job on this. One of the conspicuous problems with current sentencing reform has been the apparent barrier between the legal scholars dominating academic discussion and the more common social scientists among the sentencing policy practitioners. As someone who taught and published in public policy before being seduced by the glamour of sentencing commissioning (and now correctioning), I have long felt that our discipline ceded too much academically to the law folks, I guess also in deference to the criminologists who staked flags early. You'll be hard-pressed to find criminal justice in the curricula of public policy programs despite its social and financial impact on all the policy areas that do have a place there. There are many studies and models in policy work that have direct relevance to what has happened and might happen to sentencing reform but have gone unused because of the artificial and unnecessary wall that has separated us. Similarly, the thoughtful commentaries and proposals of the Reitzs and Frases, Chanensons and Bermans, Wrights and Millers could bring new light to policy paradigms. Add in the synergies (eek!!) of the psychologists and crim people (notice the discipline I'm leaving out due to its psychosis), and we could bring a whole new intellectual infrastructure to our analyses, programs, and ideas.

Again, that's why the recent NASC conference excited me, beyond the heart-pounding "Jeopardy" game. Chanenson, Wright, and Miller were on the same panel, clearly getting it, or at least most of it. Steve Chanenson and Doug Berman are planning to deal with the implications of opinion surveys about sentencing in a forthcoming Federal Sentencing Reporter. Lines have been (re)established that I hope will prove sturdy. As the trio said at their panel, we can move beyond "first generation" sentencing reform with new visions, data and information, and academic partnerships that will impact corrections functions and budgets for decades to come. With new nonprofit resources coming available to support these types of efforts, it really is a time for optimism, if only cautious yet, after years of plateauing in our initiatives and impact. If you're new to the ELS perspective and possibilities, a few minutes with Lempert's posts will get you up to speed quickly.

I can feel the train pulling out of the station.

1 comment:

Tom McGee said...

I would add another item to Richard Lempert’s list of topics that have “connections to the problems that concern lawyers” and others, namely, concept formulation. Stephen Pinker tells us that the human mind is equipped to think about things (often the same things) in two different ways. We form concepts of classical categories, which have fixed boundaries, and concepts of family relationship categories, which have fuzzy boundaries. Crimes are concepts of classical categories, while offenses are concepts of family relationship categories. Hart referred to concepts of this kind as having an open texture. For example, robbery is a crime, but it is also an offense; two different ways of thinking about the same thing. Decision-makers respond differently to the two. Of course, lawyers hate concepts that have fuzzy boundaries, for the most part, but the world is full of them.

I believe this human proclivity was at work in Booker. The Stevens majority thought of the problem as a crime, while the Breyer majority thought of it as an offense; both were partially correct. Justice Ginsberg thought of the problem in both ways, confounding most lawyers, but hitting the nail on the head.

Thinking about things in more than one way adds greatly to our ability to solve problems. Certainly, sentencing systems should take advantage of this ability. The line of cases leading to Booker provides a great laboratory for scientists who wish to study concept formulation. Go for it.