On Doing What’s Right: Lessons from Judicial Practice

The decisions judges have to make on a day-to-day basis are difficult: after all, they affect the defendant’s life deeply. In other words, they have to do the right thing. But what is ‘right’ to do in one context isn’t necessarily what’s right in another setting. How can we think about these evaluations and judgments, taking their situated and contextual character into account?

When sentencing, judges try to arrive at a decision that’s right for the defendant. Important dimensions of judging that ‘rightness’ are, for instance, the proportionality of the sentence in relation to the gravity of the offense, but also in relation to the consequences of the sentence for the defendant. With prison sentences often conceived of as particularly punitive, judges may be cautious to mobilize it as a sentencing option. Particularly in cases where a prison term may cause the defendant to loose his or her job – and hence his or her perhaps already precarious livelihood! – judges may opt for community service or a fine.

What is right for one defendant, then, may not be right for another: ‘rightness’ is a contextual affair. But understandings of rightness may also be non-coherent. What counts as right within one way of approaching the world may not be right according to another perspective or frame. A sentence that is ‘right’ for the defendant in broader punitive terms may be wholly inappropriate within a rehabilitationist frame. Scholars of law and society are intimately familiar with these contrasting approaching to punishment – and my data, detailed in The Law Multiple, illustrate that judges make deliberate and careful choices between these registers of rightness to make decisions.

These insights resonate strongly with a variety of studies in valuing and valuation research, which draw attention to the situated, and therefore unstable, character of judgments. As a researcher, it may be tempting to take the role of the ‘legislator’ and judge whether or not our informants are, well, right in their use and mobilization of specific understandings of rightness. Yet the more empirically productive option, perhaps, is to study where and how valuing takes place in practices – which is precisely the suggestion made by Heuts and Mol in their influential paper ‘What is a Good Tomato?‘. Fascinatingly, they understand valuing as an important site of research in and of itself.

They also understand it not only, or simply, as a cognitive activity that takes place in people’s heads, but approach it as a practical activity with a variety of materials. Thinking of legal practices, the first material that shapes judges’ valuing that spring to mind is, of course, the legal case file. It not only transports the ‘facts’, but also narrates and presents them in such a way as to render adjudication and sentencing possible. The world of the file, I have written elsewhere, is a world that has to be rendered judgment-compatible.

Interestingly, the world of the legal case file is populated by different actors: institutional actors, present in formal language, signatures, and stamps – but also, and crucially, the defendant him/herself. Particularly at the sentencing stage, questions about the defendant proliferate. Is he or she a productive member of society? Is she aware of the gravity of the defence, and authentically remorseful? What drove her to the crime in the first place?

Here, it is important to note that much of the information that reaches the judge is written up by parole officers, who generate so-called pre-sentencing reports. And where these might once have detailed the defendant’s life story in a narrative format, they are increasingly structured – in the Dutch context at least – along formalized risk assessment formats (the Dutch Recidivism Assessment Scale or RISc tool). Based on the parole officer’s conversation with the defendant, his or her risk of recidivism is disaggregated into distinct categories, and scored as low or high risk. Now, when we think of judicial valuing in practice, an important question is: what does this new method of generating knowledge about the defendant do to judicial valuing practices? How does this register of risk inform their decisions?

I contend we need to more about these complexities of valuing in practice – not only in the practices of judges, but in all practices in which professionals make decisions about people’s lives. How, in other words, do professionals decide what’s right? And how do these professionals judgment of rightness shape our shared world?