This morning I received word that the Marie Curie grant proposal I have been working on over the summer has been accepted! This means that I will be working at the Catholic University of Leuven, more specifically a the Life Sciences and Society Lab, expertly headed by Prof. I. van Hoyweghen. The project engages closely with the notion of ‘resilience’, and the way this is translated and mobilized in various professional settings. I am over the moon with joy at the prospect of taking my career this crucial step further and developing important skills along the way. More information on the project, including a project specific website, is soon to follow. For now, follow me on twitter for updates!
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?
How do judges feel their way through their case load? What is the role of the emotions and of affects in bureaucratic practices anyway? And how can we develop the tools to do justice to the affective texture of file-work?
It’s been in the making for a while now, but I am glad to be able to tell you Lieke Wissink and I will soon be publishing a piece in Environment and Planning C: Politics and Space, that tackles these questions directly. Drawing on two ethnographic research projects, one in a European deportation unit, the other in a Dutch criminal court, we show how file-work is not simply dry and boring work of indifferent bureaucrats. Instead, this type of work is shot through with affects of various intensities, especially affects of care for the file’s completeness, its quality (a very difficult thing to define!), and its capacity for smooth bureaucratic movement.
Crucially, we also show – in contrast to approaches that gloss over differences between bureaucratic settings – that these affects differ very much in the two sites. In the deportation unit, the decision to report a person has already been made, and the actual individual referent of the file – the illegalized person – operates more as a nuisance to smooth bureaucratic functioning. In the criminal court, however, the decision is yet to be made, which also means that judges have to remain open to whatever may transpire in court:
Judges’ preferred affective relation to the file and to the file’s referent, then, is one of allowing oneself to be affected, but not prejudiced – a process assisted by not hurrying and by hesitations […] ‘Keeping a cool head’, however, is not the same as affective detachment. According to the judges, weighing the case, turning it over in one’s thoughts, is and will always remain ‘human work’ or a ‘craft’, not an ‘exact science’. Indeed, complete affective detachment from the file’s referent – the defendant – is something to avoid, as a proper decision has to be rooted in an appreciation of the severity and the context of the case, as well as the defendants’ personal circumstances.
As such, the article can be read as a problematization of the idea that bureaucratic practices are either rational or indifferent, and as an argument to highlight the daily work of paper-shuffling and its attendant affects and investment. Only in taking these practices of ensuring ‘good files’ seriously can we attend to the everyday, perhaps banal, reproduction of State power and its violence.
The pre-print of the article can be found here!
Sociologies of judicial decision-making practices often concentrate on verbal interactions in Court. Dramatizing the encounter between impersonal, abstract ‘Law’ and the individual defendant, these settings have attracted significant sociological attention and wonder. But what about the pretrial work that takes place backstage? And what about the legal case file?
Case files have not received a wealth of attention in socio-legal studies and sociologies of law. There are a few reasons for this neglect – some of them good, some of them perhaps less so. One of the reasons documents like the legal case file may not have received much attention is that they, like any infrastructure, tend to be rather invisible: sunken into the ‘background’ of everyday action, their crucial role in shaping judicial work may remain invisible, unremarkable.
Another reason for this neglect may be practical: it is rare for researchers to acquire full access to the work practices that take place backstage, in the Court’s hallways and offices. And of course, that is precisely where the files are!
Last, case files are also – for lack of a better word – boring. In contrast with the highly charged and affectively textured interactions in court, the case file makes a rather mundane impression. Sure, traces of the highly emotional events that tend to make up cases are certainly present (in witness or victim descriptions), but as an object it does not exactly spark the sociological imagination. it is for this reason that Bruno Latour quips that documents may be the ‘most despised of ethnographic objects’.
Still, this neglect hampers our understanding of judicial practices. Case files are crucial to the practical and ‘epistemic’ delineation of the case. In other words: quod non est in actis, non est in mundo (what is not on file, is not in the world), as far as many judges are concerned. As such, case files engage in an operation we could call ‘documentary doubling’, a notion I and a co-author develop here: doubling the world outside of the judge’s reach, it translates the event and the defendant to produce a highly specific ‘judgment-compatible’ world:
‘the case file features as a specific technique to produce a singular event, and bring into being a hybrid subject, located at the inter-section of rights and legal obligations, of morality, and the sphere of (calculable) risks and rehabilitation.’ (522)
In so doing, these operations ‘constitute forms of documentary doubling in that the events and actors referenced are translated into legal communications and are thereby “doubled“.’ (p. 522)
What are the consequences of such an approach to legal case files? Well, it means we have to take them seriously as actors that delineate the case and shape the world the judge is deciding on. It also means we can raise critical questions about what actors may or may not contribute to that world. Or we may wonder what forms of evidence, documents, and statements may be officially folded into the file, and which may not. Opened up is also space to attend empirically to contestations of the particular way the file has shaped and constructed this particular, judgment-compatible version of the world. Doubling, we argue, is a practical operation, but it is also an operation of power: the power to define and distinguish between the legally relevant and irrelevant, that which belong to the case, and that which does not.
But the case file is not just a container of texts, a vehicle for the transmission of information. It is also, and crucially, a material and temporal object. In my next blog posts, I elaborate on what that means!
The relationship between criminal justice and race is fraught. The revival of calls for prison abolition emerging from the Black Lives Matter movement raise a set of difficult questions scholars of law and society will need to attend to.
One of these questions is: How can we understand this fraught relationship between law and race? While Critical Legal Studies convincingly show that race is foundational to legal, liberal orders (see especially Whiteness as Property by Cheryl I. Harris, and The Racial Contract by Charles W. Mills), and while statistical accounts show that criminal justice reproduces wider racial and ethnic inequalities, race also plays a more hidden role in criminal justice.
On the one hand, race may be evaded, as it was among the judges in the Dutch jurisdiction I studied. However, these judges do draw on implicitly racialized notions of culture, the social milieu, and the phenotype in making sense of individual defendants. In mobilizing these registers, they articulate (versions of) race, excavating from the past not simply biological, but humoral and phenotypical modes of ordering human bodies and lives. Analyzing what these appeals to ‘culture, ‘the social milieu’, and the phenotype do – and not do – in actual judicial practices, the piece concludes that:
Even though biological race may not be the first or primary register in which judges conceive of individual defendants, shades of its biological dimensions persist in their use of the milieu concept, which so readily includes notes on geographic isolation or a cultural–religious emphasis on endogamy and their genetic consequences. But race escapes these narrow, biological confines: it is variously articulated as ‘culture’, and certain styles and forms of dress coproduce certain defendants as, for instance, ‘Turkish-looking’. Precisely in this shape-shifting capacity, race persists. (p. 805-806)
But that does not mean that race is a stable and uncontested presence in these practices. Judges and other actors in Court may also aim to confront or destabilize these registers, for instance in an appeal to the ‘individual behind the culture’, or the arbitrary and problematic status of witness descriptions that use ethnic markers of appearance. As such, I argue that in these practices, race can be understood as both a suspect presence and an (only) ambiguous absence.
On the other hand, race also plays a dubious role in forensic technologies of investigation and identification. DNA testing, for instance, relies on databases that are themselves not racially neutral. And recent advances in DNA phenotyping – using DNA found on crime scenes to reconstruct the ‘face’ of an individual defendant – mobilize socio-cultural stereotypes and discredited, 19th century conceptions of race.
In What About Race?, published in the Routledge Companion to Actor Network Theory, Amade Mcharek and I wonder how we can draw on the tools developed in actor network-theory to make sense of race in such practices – and what actor network scholars may in turn learn from thinking with race. We emphasize that scholars need to take multiple histories into account – especially when these histories may be glossed over in appeals to the ‘progress of science’ or a presumably post-racial present:
The study of human difference is similarly a field in which narratives of scientific progress can be encountered. However, it is also a field that can at times come across as being haunted by histories of eugenics and colonialism. A narrative of historical discontinuity is one way to make race absent: insisting that at stake in genetics is not ‘race’ but population, for instance, is a way to enact a break between the scientific now and the pseudo-scientific, racist past. In a way, these narratives resonate with appeals to a post-racial present, in which we have moved beyond race… However, these times continue to haunt (Derrida 1993) what goes on in the present.
This image, we suggest, evokes not only every more granular and probabilistic data that – as it suggests – are present ‘in the DNA’. It also mobilizes social and cultural registers of race in its portrayal of the nose or hair texture of the unknown suspect. These social and cultural registers cannot meaningfully be thought without taking 19th century, raciological knowledges – drawn e.g. from physical anthropology and anthropometry – into account. Hence, the image folds within itself multiple histories. With that, race also challenges a largely implicit form of presentism that still affects certain versions of actor network-theory:
As such, thinking with the object of race also asks us to (re)consider other sites, networks and objects within these nonpresentist terms. Can we have eye for different and multiple temporalities as these are folded within ostensibly black-boxed, ‘ready-to-hand’ objects? Can we allow ourselves to trace not simply what is made present in networks, but have eye for those objects that contribute to the making of networks in more ambiguous ways?
Good sources to think about such DNA phenotyping technologies and their ethical and political implications is this position paper by a variety of science and technology scholars. This empirical piece by Roos Hopman offers a good discussion of the practical logics in play in DNA phenotyping, while this article, co-authored with Amade M’charek, delves into the oscillation between individuals and collectives in DNA phenotyping. .
Contemporary approaches in science and technology studies are increasingly pointing to the role of time and temporality in shaping scientific knowledge production. Can we draw on this same sensibility to make sense of legal practices of case-making?
Within legal practices, time is of the essence. Procedure introduces the necessity to take stock of precise dates and times, while judges draw on the case file to make a decision in the here-and-now about the there-and-then of the offence. The case file is crucial to these efforts: as a folder of documents, it is also a folder of these multiple temporalities.
On the one hand, the case file carefully traces its own procedural path through times and space, while on the other it transforms facts in such a way that they can be used in the future – that is, in Court. It mobilizes temporalities of different kinds: the historical events in question, narrated and accounted for in witness descriptions, police reports, victim and suspect statements; and the time of procedure, which is carefully traced by means of stamps, signatures, and other authorizing techniques. These temporalities are rendered explicit in the case file. Yet there is also the history of the case file’s production, consisting of situated interactions between police officers and witnesses, victims and suspects. These histories are only visible in small traces, in oblique references. Yet they may become crucial to the case, for instance when these traces seem to suggest that the prosecutor did not ensure that due diligence was taken, or if they suggest that police officers have ‘massaged’ their transcripts of the interaction with the suspect.
In highlighting these temporalities and the role they may play in Court, I conceptualize the case file as a folded object. In Chapter 6 of The Law Multiple, I write that:
objects are not simply used “in time,” but that they both enact and render invisible different times themselves. Drawing on this notion, I am interested, first, in how the legal case file folds within it multiple histories in its effort to render history (the offence in question) available; and second, how the case file may itself become the object of un- and refolding practices in the making and remaking of that same historical event. (p. 147)
I unpack how these temporalities and histories of different sorts come to play a role in truth-finding efforts in Court, and how actors, most notably the defence, may mobilize certain of the case file’s hidden, invisible histories in what I have called moments of temporal interference:
In emphasizing the making of multiple temporalities this chapter has paid specific attention to phenomena we can now start to recognize as moments of temporal interference: that is, the moments in which the time of procedure, the time of the file’s production, and chronological time cannot be neatly kept apart but rather interfere with each other to produce barriers to truth making. In each of the cases drawn on in this chapter, the time of procedure, the time of the production of the file, and the time of the offense are evoked and “brought to life” simultaneously, producing a situation both propitious (for the defendant and lawyer) and challenging (to the prosecutor). These moments of temporal interference demonstrate that, while great care is taken to set the procedural stage for truth making, such efforts do not necessarily succeed. Procedure, as well as the times and places of the case file’s production, can be evoked to bar access to the truth. (p. 162)
As an additional recourse to think about the practical making and mobilization of time in legal practice, check this wonderful collection of chapters edited by Sian Beynon Jones and Emily Grabham! Their introductory chapter is available as an open access pdf.
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!
For judges, the question whether a defendant demonstrates authentic remorse is of paramount importance. But how do they interpret and weigh these demonstrations of remorse?
Remorse – a crucial emotion in Western understandings our obligations to others – is an essential ingredient of sentencing practices.
Authentic remorse, to judges, is more than just an apology. They also actively look for signs that a defendant is ‘taking responsibility’. Indications that the defendant is bettering his or her life – by finding a meaningful way to pass the day (employment or education) or by seeking help for medical or mental health issues – can be interpreted as signs of remorse.
But the priority judges attach to such demonstrations of remorse, it turns out, really depends on the type of case. Indeed, judges tend to work with a set of ‘typical cases’ that involve typified understandings of the kind of defendant, kind of circumstances, and kind of offence. Depending on this whole-case scenario, they either value, or devalue, defendants’ demonstrations of remorse.
An example? In cases involving petty theft by drug-addicted defendants – a rather common kind of case in the lower Courts – judges tend to sideline defendants’ demonstrations of remorse. After all, ‘the addiction will be stronger than their resolve’. The ethical and political implications of such an understanding of crime, moral responsibility, and addiction are far-reaching indeed!
For more on ‘whole case narratives’, see this piece by Cyrus Tata (foundational for my thinking about judicial practices as ‘craft-work’). For a more in-depth discussion of the relationship between whole-case narratives and the interpretation and weighing of remorse, see this article in Social and Legal Studies, or Chapter 3 in The Law Multiple. There, I make the case that remorse is a contextual and mediated achievement:
Remorse, then, is mediated narratively: first, judges face a narrating subject in court, whose “story” has the capacity to inform not only their impression of the defendants’ remorsefulness, but also their sentencing decisions. The narratives proffered by the defendant face dual and sometimes conflicting demands: a narrative offering temporal-causal intelligibility, as is the case in those defendants seeking to argue a case of self-defense, for instance, may detract from the successful narration of moral and personal responsibility. Second, defendants’ remorsefulness is weighed and evaluated in and through several typical whole-case narratives: recurring and typified “cases” characterized by different modes of emplotment (Ricoeur 1992), including different conceptions of what drives people to do what they do (anger, addiction, a bad relationship), different modes of evaluating the degree to which they are responsible, and different modes of retaining or rejecting the normative expectation that they should take responsibility. (p. 109)
A great read is also this piece by Kate Rossmanith, Steven Tudor, and Michael Proeve on the question, How do Judges Know? An important source to think remorse in criminal justice settings is Richard Weisman’s Showing Remorse: Law and the Social Control of Emotion.
One of the most fascinating dimensions of researching legal practices – to me – is the way a close look at backstage proceedings reorients one’s attention to the social and material distribution of ‘judging’.
The field of socio-legal studies, because of its close association with legal scholarship, tends to think of judging as an activity that is located squarely, and only, in the judge. Literatures on discretion and the ‘social’ or ‘psychological’ influences on judicial decision-making tend to reiterate this conception of the judge as the sole (but not ‘un-influenced’) decision-maker. Of course, in a purely legal sense, this is true – or rather, must be taken as if it were true. The judge is indeed responsible and accountable for the verdict!
Yet a closer look at judicial practices suggests that this conception of judging, while legally necessary, is in fact a poor approximation of actual work practices. In my ethnography, I highlight the distributed and mediated character of judicial decision-making.
I emphasize the ‘agentic’ role of case files, which shape and delineate the case in questions, and highlight the important work done by assisting clerks in summarizing and shaping the case as it appears on judges desks. Taking this social and material mediation of judicial case-construction seriously, I suggest, is also a way to attend to legal ways of finding out ‘what really happened’. In The Law Multiple (2020), I suggest that
[W]here legal practices promise some kind of access to “what really happened” these instances are helpfully addressed using a distributed, mediated, and practical conception of observation. Particularly the case file, allowing the transportation of evidentiary materials and the translation of an event into a punishable offense, is a salient ingredient of these epistemic practices: without it, there is no “case” to be made. (p. 59-60)
The Law Multiple – my monograph on social scientific and legal ways of case-making – has rjust been published!
Having spent the majority of my last year teaching, I am glad to see it finally in print. It is published by Cambridge University Press, and will be available as a hard copy (both hard back and paper back) and in digital form.
An ethnography of legal and social-scientific truth claims – how they are made, what human and non-human actors they mobilize and engage, and how they end up shaping our worlds – The Law Multiple represents an attempt to stay with the practical, occasionally messy, and never not concrete practice of judges and social scientists alike. Click here for a brief summary of the text and the praise it received. Or else, take a look at the publisher’s website!
If you are an editor seeking a review copy for a journal, a fellow researcher, or a student seeking to use it in your studies, please do not hesitate to get in touch!