Brandon L. Garrett
86 Geo. Wash. L. Rev. 1490
The American criminal justice system is at a turning point. For decades, as the rate of incarceration exploded, observers of the American criminal justice system criticized the enormous discretion wielded by key actors, particularly police and prosecutors, and the lack of empirical evidence that has informed that discretion. Since the 1967 President’s Commission on Law Enforcement and Administration of Justice report, The Challenge of Crime in a Free Society, there has been broad awareness that the criminal system lacks empirically informed approaches. That report unsuccessfully called for a national
research strategy with an independent national criminal justice research institute, along the lines of the National Institutes of Health. Following the report, police agencies continued to base their practices on conventional wisdom or “tried-and-true” methods. Prosecutors retained broad discretion, relying on their judgment as lawyers and elected officials. Lawmakers enacted new criminal statutes, largely reacting to the politics of crime and not empirical evidence concerning what measures make for effective crime control. Judges interpreted traditional constitutional criminal procedure rules in deference to the exercise of discretion by each of these actors. Very little data existed to test what worked for police or prosecutors, or to protect individual defendants’ rights. Today, criminal justice actors are embracing more data-driven approaches. This raises new opportunities and challenges. A deep concern is whether the same institutional arrangements that produced mass incarceration will use data collection to maintain the status quo. Important concerns remain with relying on data, selectively produced and used by officials and analyzed in nontransparent ways, without sufficient review by the larger research and policy community. Efforts to evaluate research in a systematic and interdisciplinary fashion in the field of medicine offer useful lessons for criminal justice. This Essay explores the opportunities and concerns raised by a law, policy, and research agenda for an evidence-informed criminal justice system.
