Thursday, October 05, 2006
Around the Blogs 10-05-06
Doug Berman tips us to an SSRN article that basically fires a major missile across the sentencing guidelines bow. The paper says that states adopting guidelines have been rewarded with higher crime rates than those without, and that the more mandatory those guidelines, the greater the increase. Clearly, this is work that must be addressed by those in sentencing policy. I thought the paper was interesting, although the almost exclusive use of law review and econ journal articles to the exclusion of criminology or policy models material is an immediate flag for suspicion of subsequent results. (So is citing Easterbrook and Posner as authorities. Sorry, but to a poli sci guy, the bells start screaming when ideologues are invoked, even if they aren't seen as such within the legal community. And I'd say the same if the author had cited Tribe or Dworkin.) Claims about offenders' motivation being economically based when the literature of people who, like, actually study offenders rather than dream up models of them is not disproven by assuring us that "even if only some act this way . . . ." The part about offender "risk aversion" should just be passed over quickly by those of you familiar with the crim literature. And some of it is just wrong. The assertions about WI applied to its first commission, which disappeared 12 years ago, not the one that is going today. And claiming MD's judges (in another state I'm directly familiar with) are guided by guidelines rather than the judges themselves creating the guidelines based on what they already did before guidelines is at the least arguable. I was put off by the old logic trick that "offenders consider both certainty and severity of punishment" and then shifting the entire article to the severity part, especially when the certainty part is the more relevant (as crim lit shows). Using "number of"state police officers" as a variable not only doesn't resolve the problem, it reveals a cluelessness about the actual criminal justice system. Moreover, guidelines were introduced in many states to address fiscal scarcity, but ended up focusing those few state dollars on corrections to the financial detriment of other areas of criminal justice in a state. The author wants the loss of judicial discretion to explain the crime increases when it may be the siphoning of resources from the front end mechanisms for addressing crime, that old "certainty of punishment" thing that got forgotten again. As for the arguments about how broadly judicial discretion is actually exercised, I would note again that I've published research reaffirming how frequently that learned discretion, that "productive disparity," magically results in sentences that are multiples of 6. You might think from this that I think the article is bad. I don't, really. It's useful for the points it manages to make and for the hole it puts in the conventional wisdom. We need this kind of shakeup of our suppositions. What the article needed was peer review by trained criminologists and political scientists, not folks trained in the narrow cognitive world of law and econ. The author would have had to have made a much better argument, but the one made is one that must be considered by all of us, nevertheless. . . . Speaking of legal scholarship desperately needing contact with knowledgeable social science, the dialogue on the subject continues at Empirical Legal Studies. I would add to the above comments that one way to improve the linkage and benefit to both disciplines from each other would be to have more publications reviewed from the other side and to have more of them actually jointly written. The point has been made this week in the ELS series, but it needs to be stressed. You only learn by teaching it, by having to organize and make it your own. Forcing legal and poli sci types to work together on mutual projects would help them both and move the symbiosis of the fields along dramatically, I think. Sentencing policy is obviously just as fertile a field as the study of the courts that ELS is endorsing, as the article discussed above inadvertently proves. . . . After whomping on CA in the News post below, it's only fair that I point you to The Real Cost of Prisons and its link to a story on CA's new law that allows nonviolent offenders who agree to intensive drug treatment to get shorter parole if successful. By itself, it won't untie the state's Gordian Knot, but it's a good step that got Joan Petersilia's endorsement. The knowledge is there in CA when the policymakers want to use it.