Mary De Ming Fan, Disciplining Criminal Justice: The Peril Amid the Promise of Numbers, 26 Yale L. & Pol'y Rev. 1 (2007), https://digitalcommons.law.uw.edu/faculty-articles/121
Disciplining Criminal Justice: The Peril Amid the Promise of Numbers
Yale Law and Policy Review
case study, criminal justice, Government Performance and Results Act, statistics
When it comes to the opaque domain of criminal justice's inner workings, statistics have a penetrating potential that scholars and officials have deployed in governing discretion, achieving accountability, and revealing systemic faults. The growth of sophisticated scholarship and ideas adapting quantitative technology to unveil the hidden, spur debate, and police bad behavior is an important movement. Yet this Article sounds a note of caution against the primacy of numbers in disciplining criminal justice practices. This Article does not take aim at numbers deployed to correct, monitor, and reveal as an adjunct to serving public values. Rather, the Article's concern is about numbers becoming an end or target in criminal justice, becoming the value rather than serving as a technology toward higher aims and principles. The concern is about how statistics of people prosecuted and cases won, divorced from qualitative details and isolated from context, are officially deployed as a proxy for performance in criminal justice, in place of substantive aims that have proved difficult to attain or denominate in determinate ways.[para] The analysis proceeds through two case studies. Part I examines how the Government Performance and Results Act responded to widespread public criticism of federal government performance by making numerical targets the standard of performance and qualitative depiction a deviation that bore the burden of justification. The case study examines how the Department of Justice tried to resist the denomination of the duty of "doing justice" in terms of output targets, repeatedly explaining the potential for perverse consequences and that justice is ill-served by reduction to numerical outputs like quantity of people prosecuted. Part I then assesses the recent reversal of commitment to this principle and the turn to officially denominating performance in terms of numbers of people prosecuted and win rates.[para] Part II examines how substituting numbers of people prosecuted for intractable goals is used to expressively exorcise frustration over policy failure in the context of immigration control and prosecution. This Part begins by examining the apparent failure of the paradigm of "prevention through deterrence" in border control, despite muscular and expensive policy and legislative measures that heighten the "pain" of unauthorized entry and ramp up the rate of prosecution." The case study examines how frustration is expelled and unattained goals redefined by using numbers of immigration prosecutions as a proxy for "border security" and control, effacing the courage and vision to search for more effective strategies and to better serve substantive values. A decrease in immigration prosecution "deliverables" was the officially proffered reason for the recent dismissal of a U.S. Attorney by the administration that appointed her—when she tried to pursue the public interest by aiming higher, at the more culpable and powerful orchestrators of crime, rather than pursue self-interest by directing limited resources at collecting the quickest and easiest statistics without regard to context or efficacy.[para] Part III presents this Article's prescription for the problems of numbers that replace-and efface-higher values rather than work toward achieving them. I call for more receptivity in policy and legislation to qualitative methods and worldviews, so that numbers and values can be situated in context. Qualitative approaches are context-sensitive, holistic ways of addressing the world's complexities and indeterminacies. Qualitative and quantitative ways of seeing need not be opposed. As the "mixed methods" turn in the social sciences shows, the two approaches deployed together can approach problems pragmatically and in complementary fashion, permitting smarter use of numbers and mooring quantitative technology to context and values in qualitative perspective.