an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Alice Ristroph has drawn my attention to an exquisite photo in today’s New York Times. It’s a picture of Arizona judge George Preston shuffling a deck of cards in preparation for a show of hands to resolve a local election in Cave Creek. The full court hearing and the card game can be viewed on YouTube here.
While deciding an election by a hand of cards or a roll of the dice is relatively uncontroversial, the extension of randomization to other areas of the law, especially to the field of policing and punishment, tends to raise a few more eyebrows. But it’s a question that Ristroph, Alon Harel, Michael O’Hear, Ken Levy, several others and I (for my part, in this article) have been debating with increased intensity in the penal sphere—most recently, as a conversation in Paul Robinson’s Criminal Law Conversations (Oxford 2009).
Jon Elster, who’s done marvelous work on randomization, sees no role for chance in the criminal law. “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared back in 1987 in his Tanner lectures, Taming Chance. I tend to think that his broad assertion, however, is a bit short sighted. The fact is, most rationales for chance apply with equal strength in the criminal context.
Recent work on profiling has demonstrated for instance that, in many situations, randomization may actually be the only way to obtain a carceral population that reflects accurately the offending population—that the social scientific principle of random selection is the only true way to achieve an unbiased sample in policing. New research on prediction and profiling, including this here, liberates us to think more about the virtues of randomization.
Now, there are, of course, alternative ways of resolving impasses at points of indeterminacy – we can always stick to the status quo, leave it to another vote, or simply impose our tastes – and there are several positive arguments for choosing randomization over those alternatives. Some theorists embrace randomization because they believe that, at least in certain limited domains of uncertainty, it may be more honest and more consistent with rational choice preferences – Jon Elster is one. Others endorse randomization as the only method that produces an equal chance of an outcome. Still others embrace chance for pragmatic reasons, and others as a form of experimentation – as in the randomized trial. (Katherine Barnes at the University of Arizona has been doing some fascinating work along these lines).
I embrace chance from a different, a fifth perspective – what I consider a more critical perspective. I believe that critical reason continuously exposes leaps of faith that we regularly take in our empirical reasoning – including, I should note, in the behavioral and rational choice approaches that lead some, such as Elster, to embrace randomization. Critical reason thus exposes a capacious sphere of indeterminacy, far larger than most imagine. It’s at those points of impasse, I argue, we should turn to chance, but turn to chance by default, because there is no other way to avoid taking another leap of faith and imposing our preferences, ideology, habits, training, or tastes. From this perspective, chance does not have a positive value. It is not more honest, nor more practical. It does not afford the benefits of a randomized trial. It is, instead, the only way to avoid another leap of faith beyond the limits of reason.
I tend to think of randomization in the punishment field as a possible way of getting beyond punishment as a form of social engineering – as a practice intended to change humans, to correct delinquents, to treat the deviant, or to deter the super-predator. The increased use of chance to resolve issues at moments of indeterminacy would almost usher in a world without punishment. It would not be a world without anything that could be described as punishment. The person convicted of murder or embezzlement may still be sentenced to a term of imprisonment. But it would be a world in which we have ceased to punish in furtherance of hunches and unfounded theories. A world in which we no longer engage in punishment as a practice of social engineering. A world in which punishment is chastened by critical reason. That seems like an idea worth thinking about.