September 2, 2010
Can and should we try to research sentencing law and policy in actual laboratories?
Especially in the context of criminal justice reform, I love Justice Louis Brandies' notion of state legislatures serving as "laboratories of democracy" for improving national crime and punishment law and policies. However, the question in the title of this post asks whether actual laboratories might allow us to better understand crime and punishment, and it is inspired by this new paper on SSRN titled "Using Laboratory Experiments to Study Law and Crime." Here is the abstract:
The 19th and 20th centuries produced breakthroughs in physics, chemistry, and the biological sciences. Laboratory research played an important role in the rapid advances made in these fields. Laboratory research can also contribute progress in the social sciences and, in particular, to law and criminology. To make this argument, we begin by discussing what laboratory experiments can and cannot do. We then identify three issues in the criminological and legal literature: why violence is higher in the southern United States than in the North, the relation between the severity of punishment and crime, and the expressive effects of law. We describe the relevant data from laboratory experiments and discuss how these data complement those gained through other methods.
September 2, 2010 at 11:21 AM | Permalink
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The law is an empirical field. People are put to death, and $trillions are transferred between hands. Those are harsh physical remedies. Outcomes should at least be measured.
And every statute, tax and regulation is an human experiment. Each requires pilot testing in small jurisdictions, and confirmation in larger jurisdiction before wide enactment. The blithe enactment of these without showing their safety and effectiveness represents crimes against humanity by incompetent human experimenters.
Daubert or Frye should not only apply to expert testimony but to all laws, fact witness testimony, verdict, and appellate decision. It is frustrating that almost nothing legal has any validation in science.
The basic science of the law should be psychology, and not the Catholic religion. Punishment is the sole tool of the law, yet judges and legislators know almost nothing about it. The lawyer is quite safe in his position in total control of government. When I have proposed to psychologist friends they take over the law. The reaction has been unanimous, "Never." Psychology is based on empirical validation, but psychologists feel their colleagues would do even worse than lawyers running the law, especially criminal law.
Posted by: Supremacy Claus | Sep 2, 2010 9:27:13 PM
By all available measures, one conclusion, the lawyer profession is in utter failure for every self-stated goal of every law subject. It has one great success, the collection of the rent at the point of a gun. That makes it the biggest criminal syndicate in the world. The hierarchy cannot be in such failure and keep its job as a hierarchy. It is best if it leaves peacefully, and is replaced by lawyers dedicated to the achievement of the goals of the law, rather than to the rent.
Judging should become a separate profession with a separate license, and required professional liability insurance, before stepping into any court. There should be zero tolerance for supernatural doctrines in any lawyer utterance, including that in law reviews.
Nothing in the Rules of Civil or Criminal Procedure has any external validation. The Rules of Evidence actually support garbage. The trial, the jury, the judge on a bench, all anti-scientific garbage maintained only at the point of a gun to the head of the law abiding public. Because the whole methodology comes from the 13th Century, everything has to go. One would not even build a cathedral as was done then. Nothing from that era is acceptable in any empirical field. It has to be rebuilt from scratch. Daubert applies to the criminal trial. Everything about the trial should be repeatedly challenged on procedural due process grounds, including the right to a fair trial.
Posted by: Supremacy Claus | Sep 3, 2010 4:00:47 AM