Sentencing disparities research is an important source of insight in the reproduction of inequalities in the criminal justice system. However, they offer a highly limited understanding of what it is like to see the world like a judge.
What do statistics do? A strange question perhaps, but one that is at the heart of Chapter 3 of The Law Multiple. There, I draw on science and technology studies to trace the ways statistical accounts of judicial decision-making perform a very specific understanding of judicial practices into being.
For instance, statistical models often end up ‘black-boxing’ judicial decision-making. Instead of decision-making as a social, material, and temporal process, it is operationalized as a simple informational input and output system. Information, translated into distinct and autonomous variables, enter the black box – and out come decisions.
These statistical models also tend to introduce the assumption that cases can be meaningfully translated into distinct and autonomous ‘case factors’, such as the gravity of the offense, the presence of a criminal record, or the defendants’ age, gender, and ethnicity or race.. But judges do not see defendants as ‘bundles of factors’!
In The Law Multiple, Chapters 3 and 4, I unpack these performativities of statistical modelling judicial decision-making in more detail – after which I contrast these with judges own approach to cases. The differences are pretty stark:
For judges, the case is first and foremost a narrative thing: involving times, places, events, and characters inextricably linked both to the offense in question and to their biographies, their previous actions, and the narratives they in turn provide the judge with. In sociology’s cross-sectional world, cases are bundles of factors that refer back to population groups. Questions asked about these cases are different, too. In these legal practices, the question with regards to the case is: what’s its story? In the second, the question with regard to the case is the quintessentially sociological question, what lies behind it? (p. 114)
This specific judicial approach to cases also demands a different kind of affective orientation to the case, I argue:
Both kinds of cases – narrative or statistical – also demand different kinds of observers. Judges’ familiarity with different whole-case narratives comes as a result of professional intimacy, prior knowledge, and practice: trained, but not necessarily pre-discursive intuitions and narrative capacities that help to distinguish between the relevant and the irrelevant, the remorseful and the remorseless, the typical and the atypical. In these practices, objectivity demands not the cancellation of the individual observer in an appeal to mechanical objectivity (Daston and Gallison 1992), but precisely the mobilization of his or her prior knowledge, expertise, and prudence. (p. 114)
My thinking here has been shaped in particular by Cyrus Tata‘s work on the limitations of certain binary understandings of judicial craftwork. There, he points out that the statistical imagination cannot do justice to the way the facts of the case are interpretatively and holistically established to begin with – for instance, through narrative:
Cognitive-analytical work has tended simply to equate ‘factors’ with case ‘facts’. So not only does factorial explanation ignore how ‘facts’ are identified or not, it also ignores their contingent, fluid, synergistic and constructed nature. Yet criminological and socio-legal research into the criminal process has now provided ample demonstration of the social construction of case facts. The meaning of facts is contingent on the ever-evolving nature of the case. However, the factorial approach must necessarily suppose that the sentencing meaning of factors remains immutable and constant from one case to the next and indeed during each case. Far from being discrete, immutable and irreducible elements, in the routine decision process ‘factors’ are inextricable and inseparable from the meaning of the constructed and reconstructed typified whole-case narrative. (Tata 2007: 435)
His more recent Sentencing: A Social Process is an especially important source to think through the complexities of sentencing and judicial decision-making. Like The Law Multiple, it takes stock of dominant understandings of sentencing in order to develop a conception of sentencing that attends to its complex, situated, and holistic character. A fantastic read!