We don’t create vaccines by popular consensus; why do so for criminal justice policy?
Last week, during a Senate Health Committee hearing, Senator Rand Paul said vaccinations should be voluntary, questioned the idea that failing to vaccinate can spread disease, and perpetuated discredited rumors that vaccines cause harm. These statements, shocking and harmful under any circumstances, drew even sharper outrage because they came during two measles outbreaks that could have been prevented with proper vaccinations. Worst of all, Paul himself is a physician. [Sam Stein / Daily Beast] Many were especially disappointed in Paul because, as a doctor––even as an eye doctor––he is considered by many to be an expert, which makes his role in spreading misinformation particularly dangerous.
Americans trust experts to regulate their food, medicine, and transit systems. “Few people would want to establish air pollutant limits or workplace safety conditions by popular vote. Instead, most people prefer to trust experts with specialized knowledge to set policies based on studies of what maximizes public safety and an analysis of the costs and benefits of different courses of action.” These are the opening lines of “Prisoners of Politics,” the new book about how America can break the cycle of mass incarceration by NYU law professor Rachel Barkow. “We recognize that the typical voter lacks the requisite data and knowledge to make the best decisions in these areas,” she writes, and “we understand that we would get inferior outcomes if instead we relied upon the emotional preferences of the body politic or politicians’ intuitive guesses about what is likely to work.” But this is exactly the way we make decisions about criminal justice. “We do not rely on experts or use studies and rational assessment to minimize crime. Instead, criminal justice policy in the United States is set largely based on emotions and the gut reactions of laypeople.” [Rachel Barkow / “Prisoners of Politics”]
In the book, Barkow argues that we could be doing a better job creating a safe and fair system if we looked at policies objectively instead of reacting emotionally. “We need to establish expert agencies charged with instituting and evaluating criminal justice policies so that we get better outcomes,” she writes, “and those agencies need to be designed smartly so that they do not fall victim to populist impulses.” The Daily Appeal asked Barkow about how this plays out. “I think a case like [former Trump campaign chairperson Paul] Manafort is a good illustration of how we talk about criminal justice issues. It gets swept up in the context of a specific case.” Barkow said that in the days after Manafort’s light sentence was handed down, she saw people throw ideas around without thinking about how they will play out in cases that don’t resemble his. These impulses have led to such misguided acts as increasing all sentencing and slashing parole. “Last year we could have talked about Brock Turner [a former Stanford athlete who was convicted of sexual assault]. I haven’t seen what the news is today, what the latest crime might be, but whatever it is, it’s usually that idea that policy makers must go immediately to some law, instead of some mediating institution that would analyze the problem in greater depth.”
Why does this happen? “It’s hard to get sustained attention from the public about data and facts” in the way we can get that attention for sensationalized cases, Barkow explained. This is true for areas beyond criminal justice, but in other areas, we allow experts to make decisions. Why, then, is criminal justice the exception? “Criminal law has been seen as a moral decision that is about right and wrong, and punishment and just deserts,” she said. “Less attention is paid to public safety. So if you think it’s a moral decision, then you don’t need an expert. As soon as you recognize there is a utilitarian goal with criminal justice policymaking, it makes a whole lot less sense to have it set up the way we do.”
Nowhere is this misguided approach to criminal justice more apparent than laws named after crime victims. “Bills named after sympathetic victims are the worst form of knee-jerk lawmaking, but it’s a surefire political vote-getting device,” wrote Ted Frank in a 2016 op-ed. “A politician holds a press conference standing next to the victim’s family; this gets the bill on the news. Because of terse media coverage, voters think said law will actually do something for a victim or potential future victims, no matter what the real legal changes are.” Citing professor Ilya Somin, Frank continues: “The public sees a high-profile case and has a ‘something must be done’ reaction. Politicians cater to the voters’ demands, pass the law and proudly announce they have done something, regardless of whether it was good policy or even relevant.” This almost always “creates more problems than it solves.” Banning furloughs because of one furlough gone wrong, creating draconian sex registries because of one incident, and forcing parents to report a missing child within 24 hours, which 10 states did after the Casey Anthony case–– these kinds of laws have not been shown to increase public safety, but have been shown, time and again, to ruin people’s lives. [Ted Frank / Los Angeles Times]
Looking to data and experts need not be cold and amoral. Harvard sociologist Bruce Western’s book, “Homeward: Life in the Year After Prison,” focuses on the Boston Reentry Study, a longitudinal survey of 122 people released from prisons around Boston from 2012 to 2014. One striking aspect, for Western, was “the time we were able to spend with people,” he told Pacific Standard. “We talked to them many times in the course of a year, and we would regularly call or text people to check up on them, and often we’d have short conversations with them. We also got to know family members.” On the basis of that study, Western said, three clear areas emerged as policy priorities: “immediate income support, health care, and housing.” But, he added, if we “zoom back a little bit and think about the system as a whole, we’ve imposed a very harsh punishment on people who themselves have been victimized—often over a lifetime—and people who are frail and vulnerable themselves. This is the context in which we should understand how we respond to violence.” He hopes that the research “can open the door to making values like mercy and human dignity as much a part of our system of punishment as retribution.” [Ashley Hackett / Pacific Standard]