Talk about thinking outside the box.  Since at least the time of Cesare Beccaria, generations of criminal-justice reformers have dedicated themselves to rationalizing our systems of policing and punishment: weeding out archaic laws, professionalizing the police function, bringing ever more sophisticated science to bear in the detection of crime, humanizing the administration of punishment, and so forth.  But now University of Chicago Law Professor Bernard Harcourt tells us we have been traveling down a dead-end road for the past two hundred years: what criminal justice needs is not rationality, but randomization.  Or so Harcourt argues in a provocative new paper on SSRN, “Randomization in Criminal Justice: A Criminal Law Conversation.”

Should police focus their resources on the inner-city or the suburbs?  Flip a coin, Harcourt suggests.  What maximum prison term should the legislature prescribe for a given offense?  Try drawing a number out of a hat.  Did the defendant really intend to cause the victim’s death?  Get out the tarot cards.

Harcourt’s paper appears in the new book Criminal Law Conversations, along with critical commentary written by law professors Alon Harel (Hebrew University), Ken Levy (L.S.U.), Alice Ristroph (Seton Hall), and some guy named Michael O’Hear.  The SSRN version includes the four responses plus Harcourt’s reply.  The abstract appears after the jump. 

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere – in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was 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. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid the pitfalls of ideology and unconscious bias. Alon Harel challenges Harcourt’s position, arguing that he is overly skeptical and that instead of embracing chance by default, he should abandon his skepticism for the sake of defending randomization. Ken Levy argues that Harcourt confuses power with right and that it is not possible to embrace randomization without first addressing the proper justification for punishment. Michael O’Hear acknowledges the significant role of luck in contemporary punishment practices, but he argues for channeling chance in more appropriate and useful directions. Alice Ristroph, while also acknowledging the significant role of chance in the criminal law, argues that instead of embracing chance at moments of indeterminacy, it would be better simply not to punish. In a reply, Harcourt responds to these criticisms and argues that we should think of randomization in the punishment field as a way to get 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, Harcourt argues, could usher in a world in which punishment is chastened by critical reason – an idea, he suggests, worth taking seriously.