Everyone wants the criminal justice system to be fair. Whatever one’s values, political affiliations, or ideology, an unfair criminal justice system is a faulty criminal justice system. Why then is there so much controversy about fairness?
One important reason is lack of clarity about what fairness means. Even when clear conceptions of fairness are provided, there can be several different kinds that are in conflict. For example, men are vastly overrepresented in prisons compared to women. On its face, this is an instance of unfairness in outcome. The chances a judge will sentence a man to prison are far greater than the chances a judge will sentence a woman to prison. One reason is that men are far more likely to be convicted of violent crimes for which a long prison sentence is expected.
The overrepresentation of men in prison could be easily remedied. One could decide to treat men and women differently. One could stipulate that violent crimes committed by men were less serious than violent crimes committed by women and that, therefore, incarceration was less appropriate. This would increase fairness in outcome while decreasing fairness in treatment.
Would such a tradeoff be accepted? A lot would depend on why men are more far more likely than women to be are arrested for, charged with, and convicted of violent crimes. If in fact men were no more likely than women to commit violent crimes to begin with, and if the overrepresentation of men among those arrested for, charged with, and convicted of violent crimes derived from a bias again men, the tradeoff might be accepted. But that just moves concerns about fairness upstream, where the same two tradeoffs would need to be addressed at each stage. At some point, fairness upstream would need to be examined in settings and institutions well before an arrest for a violent crime occurs. For example, why are boys more likely to be disciplined in school?
At each stage, there would be a need for data and a proper analysis so that facts could be accumulated. Are men in a given jurisdiction more likely than women to be stopped and questioned by police? If so, why is that? And might some of the reasons have a legitimate law enforcement rationale? Facts matter. Do men constitute the majority of arrests in intimate partner violence? If so, why? And might some of the reasons have a legitimate law enforcement rationale? Again, facts matter.
The same sorts of issues can arise for reasons other than gender: race, ethnicity, age, and immigrant status. What can be done? At one extreme are calls for fundamental change from top to bottom in the criminal justice system. Even if such changes could be clearly detailed and even if they were desirable, any practical plan would take many years to implement. In the meantime, many thousands of individuals, men and women, would be incarcerated. At the other extreme, are calls for staying the course. Unfairness that may exist is rare and aberrant, not a systematic feature of the criminal justice system. And, nothing is perfect.
There is a middle path. First, there needs to be far greater clarity about what fairness means in the criminal justice system and a recognition that there are several different kinds. There will be tradeoffs—you can’t have it all. Because men are in fact far more likely to commit violent crimes, equality of outcomes cannot be obtained without inequality of treatment.
Second, data must be routinely collected and competently analyzed to properly address fairness in the criminal justice system. Rather than shutting down or grossly underfunding such efforts, these efforts should be expanded. One famous illustration is the elimination, two decades ago, of research on firearms conducted by the Centers for Disease Control. Recent examples include the decision by Attorney General Sessions to dissolve the National Commission on Forensic Science, which could address such matters as racial bias in the testimony of expert witnesses. President Trump’s FY’18 budget request calls for substantial reductions for the Bureau of Justice Statistics and the Bureau of Labor Statistics.
Third, one must be prepared to accept modest reforms implemented over time that at best improve current practice. The yardstick is not perfection. The yardstick is current practice—can we do better? For example, can improvements be introduced in risk assessments used to inform parole release decisions that would enhance fairness?
Finally, any such reforms must be evaluated with proper data and a proper data analysis. Good intentions and anecdotal claims of success will not suffice. D.A.R.E., Boot Camps, and Scared Straight are examples of programs with anecdotal, but not measurable, success. The road to criminal justice reform is littered with interventions that in retrospect did not work.
Richard Berk is Professor and Chair of the Department of Criminology and Professor of Statistics at the Wharton School of Business.