Disciplining Criminal Justice: The Peril Amid the Promise of Numbers

Open Access

Abstract

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 ...