Criminal Justice Expertise

May 5, 2022

For decades, commentators have adopted a story of mass incarceration’s rise as caused by “punitive populism.” Growing prison populations, expanding criminal codes, and raced and classed disparities in enforcement result from “pathological politics”: voters and politicians act in a vicious feedback loop, driving more criminal law and punishment. The criminal system’s problems are political. But how should society solve these political problems? Scholars often identify two kinds of approaches: (1) the technocratic, which seeks to wrest power from irrational and punitive voters, replacing electoral politics with agencies and commissions, and (2) the democratic, which treats criminal policy as insufficiently responsive to community will and seeks to shift more power to “the people.” Put differently, commentators often suggest that the critical prescriptive disagreement boils down to one about expertise and its role—should experts or nonexperts be the most powerful actors in criminal policymaking?

In this Article, though, I argue that the key fault line between visions of change is not the one between proponents and opponents of expertise; rather, competing camps are advancing different visions of expertise. In an effort to understand better the landscape and stakes of the expert turn(s), I map out three different conceptions of expertise: (1) expertise based on vocation (e.g., the police officer or the judge); (2) expertise based on education (e.g., the professor or the criminologist); and (3) expertise based on lived, day-to-day experience (e.g., the incarcerated person or the crime victim). The third conception increasingly underpins many of the “democratic” responses.

I raise a series of questions implicated by the expert turn—whichever approach to expertise one adopts. I argue that any turn to expertise requires a set of shared first principles. Given widespread debate about the values that should govern the criminal system, how should experts go about addressing contested policy questions? Additionally, I argue that these conceptions of expertise are slipperier than they appear—who gets to decide what constitutes expertise, and who gets to be an expert? Rather than eliminating politics from the administration of criminal law, a turn to expertise shifts the location of political decisions to the stage of identifying experts. Unpacking and surfacing those decisions should be an important part of any way forward toward institutional change. By looking more closely at how society understands which voices to privilege and how those voices should shape policy, we can better appreciate first-principles disagreements about criminal law and governance.

May 2022

No. 6