Two Transitions in Criminal Courtroom Research
Hadar Aviram
TelAvivUniversity
Paper presented at: New Directions for Criminal Courtroom Research,
TelAvivUniversity, May 16-17, 2007
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A. From Norm to Practice and from Practice to Discourse
I remember the first time I sat in a criminology lecture, on my first year in graduate school after having been in legal practice. As our professor, the late Vicky Shiran, laid out our plan for the semester, I felt extremely excited. I was being let in on a conspiracy I had been intuitively suspecting ever since I had started practicing law. And, guess what: my suspicions were correct! Something was, indeed, very rotten in the kingdom of the criminal justice system. The law wasn’t working the way it was supposed to. Policemen behaved in racist and violent ways, then lied about it. Prosecutors were incorporating bureaucratic and cheap populist considerations in their decisions to indict. Defense attorneys weren’t protecting clients at all costs; they were managing busy workdays, annoying and impoverished clients, and their tumultuous relationships with the prosecutors and the court. Judges really preferred defendants who looked like them to those from less privileged backgrounds, and many of them were more concerned about docket management than they were about rights. These folks, who were going to teach me criminology, they were on to the conspiracy! They had been systematically uncovering the dark secret, operationalizing variables, collecting and coding data and analyzing findings on all these ugly phenomena I was seeing. These horrible things I saw every day at work were really happening and these brave criminology types were out to prove it.
Several years and discoveries later, my conversations with colleagues with similar career trajectories showed that several members of the criminal courtroom research “tribe” had gone through such epiphanies upon entering the world of social science. This paper sees these epiphanies as manifestations of broader, collective transitions occurring in our research field. As I argue here, the study of criminal courts has gone through two such major transitions, which involved reconfiguring the theory, methodology and policy implications our work had to offer. This paper delineates these two transitions and examines their promises and discontents.
The first transition, which I name here “from norm to practice”, reflects the field’s break from the world of legal-normative criminal justice studies. It is a shift from a focus on prescriptive norms, and from a paradigm of designing balance between abstract contrasting values, to a focus on the ways in which rules are implemented in the actual practices of the court. The second transition, which I name “from ‘practice’ to ‘discourse’”, reflects a shift from this aim to uncover what “really” happens in the criminal process to the rejection of any such “reality”, and toward an exploration of how law conceptualizes its chosen “reality”, and of how these “realities” have come to be.
Before discussing these transitions in detail, two cautionary remarks are in order. First, the paper sketches in simplified, broad brush strokes different processes that occurred in different disciplines; each of these disciplines, and actually each of the researchers, has its own approach toward criminal courtrooms and how they are to be understood. While the transitions do have disciplinary aspects (from doctrinal law to social science in the first transition) and geographic aspects (from American-based law and society to European-influenced discourse analysis), they cannot always be neatly mapped across professional disciplinary divides. Table 1 shows the disciplines that engage with the different paradigms, classified by their relationship to the paradigms I discuss in this paper.
Table 1. Classification of disciplines according to their approach to courtroom research
Norm / Practice / Discourse•Criminal Law
•Criminal Procedure
•Evidence
•Economic/ Behavioral Modeling (newer) / •Law and Society
•Critical Criminology
•Critical Legal Studies
•Critical/NeoMarxist History
•Organizational Sociology
•New Institutionalism / •Cultural Analysis
•Foucaultian Governmentality and Genealogy
•Luhmann’s Systems Theory
•Narrative Studies
A second, related comment has to do with the chronology of the transitions. The transitions are delineated here genealogically, rather than chronologically. As socio-legal scholars know, the principles of universalism, rationality, autonomy and equality in formal law were questioned by legal realists as early as the late 19th century, and there were certain heralds of the empirical approach to courts in the work of the Chicago project and other studies. However, for those seeking some chronology, the first transition seems to have been most significant between the early 1960s to the late 1980s. During these years, labeling theories, building on symbolic interactionism, stated that behaviors were not intrinsically criminal, and that people were not intrinsically offenders (H. Becker, 1963). Radical and Neo-Marxist criminology dared say that criminal offenses were not the Holy Gospel; they were crafted by powerful groups with group interests (Quinney, 1977; Taylor, Walton, & Young, 1973; Turk, 1969). Marxist historians detailed the history of criminalization with attention to power and politics (Chambliss, 1964; Hay, 1975; Thompson, 1975). Critical Legal Studies, born within law schools, offered more Marxist-influenced insights, as well as the assertion that justice was far from what law books proclaimed it to be (Kennedy, 1998). And the Law and Society movement, formed in 1964 and drawing on various theoretical backgrounds, including Legal Realism, examined the criminal process through the lens of a “gap” between “law in the books” and “law in action” (Pound, 1910) – a difference between the formal, normative, prescriptive model of law and its empirical manifestation in legal settings - and arguably the most influential concept in socio-legal scholarship in general (Sarat, 1998). As to the second transition, while several influential jurisprudence scholars had paid attention to what the law does and how it thinks (Dworkin, 1988; Hart, 1997; Kelsen, 1981), the most influential herald of discourse scholarship in the States was probably Michel Foucault’s Discipline and Punish (Foucault, 1979), and somewhat later, his lectures on governmentality (Foucault, 1991) through Hunt and Wickham’s The Foucault Effect (Hunt & Wickham, 1994).Foucault-influenced scholarship – as well as scholarship built on other discursive theories, such as Niklas Luhmann’s systems theory (Luhmann, 2004; Luhmann & Baecker, 1995) and Gunther Teubner’s work in this tradition (Teubner, 1983, , 1989) – has been increasingly influencing Anglo-American criminal courtroom research since the 1990s.
The paper begins by offering, in chapter B, the main premises and research trajectory of norm-centered scholarship. It then discusses its conceptual and practical problems and explains the genealogical emergence of practice-centered scholarship, whose theoretical basis and methodological approach is presented and analyzed in chapter C. Chapter D presents discourse-centered scholarship, its potential to examine models and issues unexamined by practice scholarship, and its own discontents; finally, chapter E examines the extent to which we have exploited the potential of “hybrids” – projects that stem from several paradigms – and raises some questions about the future of courtroom research
B. Norm-Centered Scholarship
Prescriptive studies of the criminal justice system are primarily concerned with norms, whether substantive or procedural. Consisting mainly of doctrinal legal studies of criminal law and procedure, norm-centered scholarship is, as defined by Abel,
a study of the rules which legal institutions apply, or which regulate the behavior of those institutions. The study identifies, defines, organizes, and criticizes the rules by means of criteria proper to the legal system – it rationalizes them in Weber’s sense. The mode of rationalization need not be wholly internal to the legal system – it may, for instance, connect the rule with some social goal – but the relationship between that goal and the legal rule is the product of a mental operation peculiar to law… Most important for my argument, the legal scholarship which produces law books is also a response to the demands of a functioning legal system. (Abel, 1973: 176)
The philosophy of norm-centered scholarship is best understood as a product of Enlightenment Era, based on two important tenets: the abstract and universal nature of law, inflicted equally and preemptively on all future situations and people without discrimination (Trubek, 1990), and the Benthamian image of its subjects as autonomous, rational actors who have free choice and would ordinarily use this choice to increase pleasure and to avoid pain (Bentham, Burns, & Hart, 1996[1780]). Cesare Beccaria, whose work is solidly based on these two principles (Beccaria, 1988) is often hailed by criminologists as the father of classicist criminology (Maguire, Morgan, & Reiner, 2002; McLaughlin, Muncie, & Hughes, 2003; Vold, Bernard, & Snipes, 2002), but can be referred to just as convincingly as the father of criminal law, or at least of prescriptive scholarship.
The assumptions of universalism, objectivism and rationality make norm-centered scholarship a strong believer in law’s ability to shape human behavior. Criminal law norms, assumed to have an ex ante effect on the behavior of defendants as well as law enforcement agencies, are shaped with the aim to balance between contrasting values. In the case of criminal courtrooms, the scale usually consists of the following ideas: on one hand, the need to protect the public (by framing criminal offenses so as to deter potential perpetrators from committing crime, and by broadening the powers of police and courts to unmask and stop actual perpetrators from committing more crime) and to discover the truth (by allowing evidence to be presented); on the other hand, the need to protect individual freedoms (that is, maintain free choice by not unnecessarily criminalizing human activity, and by not allowing law enforcement agencies to unnecessarily intrude upon human activity) and to balance what is seen as an inherent inequality in the criminal justice system between state and accused individual (by providing procedural and evidentiary “tools” favoring defendants, such as burden of proof, reasonable doubt, and due process premises). In the American context, these balancing acts are constructed through an analysis of the Fourth, Fifth, Sixth, Eight, and Fourteenth amendments, with “due process” as a key term (Dressler & Michaels, 2005), but they are far from endemic to constitutional clauses, and Israeli legal scholarship, for example, discusses them at length in the context of Article 3 of the Human Dignity and Freedom Basic Act (Karp, 1995), and before its enactment in 1992 it discussed them as abstract principles (Kremnitzer, 1980).[1]
Some practice scholars would probably hesitate to acknowledge that norm-centered scholarship has a distinctive research “design”; however, prescription scholarship does follow a specific type of norm-centered logic. In fact, legal scholars think of normative problems in a similar way to that of lawyers and judges. The logic of law consists of identifying the pertinent norm and correctly applying it to the problem (Kennedy, 1998; Twining & Miers, 1999; Vandevelde, 1996); in the case of constitutional clauses, this also means creating the correct balance between the different values presented earlier. Flowchart 1 delineates a typical process for norm-centered scholarship, which usually consists of a critical evaluation of a criminal justice norm.
Flowchart 1: Norm-centered scholarship research designNorm-centered studies define the problems they address according to the dilemmas they raise. For example, a norm-centered approach to an issue of criminal representation examines the right to counsel as the focal point of a balance between the concern for assisting defendants (and, by doing so, helping the weaker party in the criminal justice setting), and the concern for allowing the system to work efficiently and free of exploitation. This dilemma is used to solve a variety of norm-centered problems concerning the right to counsel, such as counsel during specific stages of the process (Zavin, 1999), counsel in specific types of offenses (Wuslich, 1987), counsel for specific types of defendants (Yalowitz, 1984; Beeman, 2001), and counsel in special circumstances (Beckman, 1986; Anderson, 2004). In all these cases, norm-centered scholarship seeks to examine whether the conflicting values have been correctly balanced against each other, taking into account the special characteristics of the situations. The logical trajectory (or methodology, if you will) for answering these questions might consist of a historical attempt to ascertain what the original creators of the norm (the Framers, in the American case) would believe was a correct implementation of their norm had they been confronted with the case; an analysis of the possible ex-ante impact of any chosen balance between the values; or an examination of the “fit” between the suggested solution to the problem and the solutions for similar problems. Policy suggestions are also norm centered: if a certain balance between values is seen as promoting undesirable human behavior, the study often recommends amending the norm (or its interpretation) so as to achieve a better balance.
This design is best understood if we keep in mind that norm-centered scholarship provides, as quoted from Abel above, “a response”, albeit an academic one, “to the demands of a functioning legal system”. Legal systems are based on the power of norms as strong behavioral incentives (Fish, 1991). However, these very characteristics make norm-centered scholarship vulnerable to criticism from external perspectives, highlighting its theoretical, methodological and policy-related discontents.
The theoretical critique of norm-centered studies revolves around the fact that norm-based theories do not account for legal practices in the field. The intellectual exercise of balancing values through norms is worthless without the premise that norms, indeed, matter for human behavior; this premise has no value without the assumptions of universalism and rationality, neither of which is based on facts or proven to be true. This is, of course, closely related to the methodological critique of norm-based scholarship; staunch empiricists would not even regard the logical trajectory of norm-based studies “methodology”, and argue that it relies on excessive unfounded generalizations, rather than on systematic analysis. While norm-centered scholarship can be said to be systematic in its application of logic, it often either follows the doctrinal case-by-case format for critiquing norms, or broad abstract discussions that do not refer to what happens in the field. This problem, in turn, is connected to a policy-related discontent; due to its lack of systematic analysis and disconnect from what occurs in courts, many purported solutions to legal dilemmas, in the form of suggested norms, fail to yield the expected outcome in terms of behavioral incentives.
Naturally, these discontents, which yielded the transition to practice-centered scholarship, did not put an end to legal scholarship as we know it. In fact, in recent decades, as practice-oriented scholarship has developed, norm-oriented scholarship has received a significant boost in methodology and prestige in the form of law’s alliance with behavioral economics (Donohue, 1988; Rostain, 2000; Trubek, 1990). While law has maintained insularity to external perspectives – even to Weberian theories on rational law, which describe its functions (Hunt & Wickham, 1994) – has it has been increasingly permeable to economics, a discipline with which it enjoys a “kinship” based on the strong compatibility between legal and economic views of the individual subject as a rational, well informed agent who operates based on cost-benefit analysis (Cooter & Ulen, 2000). Based on this image of the person, economic analysis of criminal justice espouse deterrence models based on optimal incentives (G. S. Becker, 1968; Ehrlich, 1972).[2]
C. Practice-Centered Scholarship
While norm-centered scholarship focused on producing abstract modeling for criminal processes that provide an optimal balance between conflicting values, the central conflict in practice-centered conflict was not between values, but rather between the aspirations (as manifested in the values) and the realities of the criminal justice system’s daily work. Different disciplines defined this conflict in different terms, but perhaps its best articulation was the aforementioned Law and Society Association’s reliance on the concept of a “gap” between “law in the books” and “law in action” (Pound; for the impact of “gap” on the broader law and society field, see (Levine, 1990; Pound, 1910; for the impact on the law and society field, see; Sarat & Kearns, 1993; Trubek, 1990). This juxtaposition of the law and society starting point to that of formal law was, to an extent, triggered by the doctrinal insularity and formulated as a response to it,[3] just as “the new criminology” (Taylor, Walton, & Young, 1973) was formulated as a response to consensus-based criminological theories.
The criminal justice arena was an ideal setting for contrasting the inconsistency between the theoretical values promoted by the law and what occurred daily in police stations, courts, and hallway plea-bargaining discussions. Far from ascribing these practices to the effects of norms, practice-centered scholars usually ascribed them to extra-legal factors, either pertaining to the endogenous criminal justice system’s malfunctions and pathologies or to exogenous factors such as social stratification and racism. Both of these subsets of the practice-centered scholarship “family” are now considered classics in criminal courtroom research.
Being mostly rooted in the social sciences, practice-centered scholarship examines the criminal process through an empirical lens. A typical research design, as delineated in flowchart 2, relies mostly on ethnography, and often combines several methods, such as observations (conducted in courtroom as well as in hallways and in prosecution and defense offices), interviews, quantitative analysis of sentencing, and occasionally a longitudinal study to assess the effect of a norm-based reform on practices.
Flowchart 2: Practice-centered scholarship research design