This report discusses and evaluates the role of social science findings in the criminal justice system. The history of science and scientists in the legal system is outlined, the fundamental issues posed, and characteristic social science research surveyed. It is concluded that no absolute guidelines can be defined to establish the appropriate role of social science in the criminal justice system.
Increasingly in recent years, a new class of expert witnesses has appeared before U.S. trial and appellate courts: psychologists and sociologists, giving professional testimony ranging from a “psychological autopsy” in a Florida case about a woman alleged to have driven her daughter to suicide, to statistical patterns relating to the handing down of death penalties in murder cases, to the race of the victim.
Concern about the growing role of social scientists in the courtroom is traditionally associated with conservatives who fear that “bleeding heart” sociologists and psychologists will undercut standards of personal responsibility or convert the courts into social agencies. In fact, however, the potential role of social science in the courts ranges across the ideological spectrum; in the recent examples noted above, social science testimony had a conservative tilt in one case (expanding the defendant mother’s responsibility for her daughter’s suicide), and a liberal tilt in the other (asserting that killers of white victims were more likely to be sentenced to death).
Indeed, the impact of social science on the legal system goes beyond the introduction of new types of testimony and evidentiary findings: social scientists have also turned their attention on the justice system itself – producing, for example, models for predicting judges’ behavior (Stone, 1966, pp. 54-5). Recently, some lawyers have begun to use psychological methods to screen potential jurors during the jury selection process.
The varied dimensions of social science in the courtroom raises a fundamental question: when is social science an appropriate tool in the criminal justice system, and when is it not appropriate? The body of this report will address these questions.
The role of science in the courts, including social science, is not a new one. Indeed, as noted by Loevinger (1974), “the effort to make law scientific is, in a sense, older than science itself” (p. 7). That is, from the time that the law passed beyond trial-by-ordeal and other methods based on divine intervention in all aspects of life, a basic function of courts has been to make an objective judgement of facts and circumstances. In 17th-century England, Francis Bacon was a pioneer in both science and the law. In 1895, Oliver Wendell Holmes called for the law to “draw its postulates and legislative justifications from science” (p. 12).
This pro-science viewpoint about the law drew a “backlash” against scientism; Jacques Barzun noted critically that “our scientific culture often expects behavioral sciences answers to the question “What Ought To Be” (Loevinger, 1974, p. 18). The uses of social science findings touch on the very question of what the law itself is: an expedient for resolving disputes, which social science methods can simply make more reliable, or a positive embodiment of values, which should lie beyond the reach of scientific findings (Auerbach, 1969).
Norvell (1974) gives three classes of situation in which scientific findings might be rejected by a court:
1. Irrelevance, as when a court rules on a matter regarding the property rights of a child that might be born to a 70-year-old woman, though scientific findings made that woman’s bearing a child a moot point. Here, a legal principle needed to be resolved, regardless of its likelihood of actually applying in this case.
2. Infringement on rights (restrictions on wiretaps).
3. Interference with non-scientific social objectives.
Norvell was concerned mainly with physical science findings, but the same strictures would apply to social science findings. For example, social science findings relating to the impact of racial bias in private matters – a matter now to be reviewed by the Supreme Court (Savage, 1988) – must be placed in a balance with both society’s interest in eliminating racial bias and the possible rights of individuals to exhibit bias in their private affairs if they so choose.
In the first half of the 20th century, a major concern of social scientists regarding the courts was the relationship of the legal order to the broader social order (Stone, 1966). This is possibly the root of the particular suspicion of social science in the courts held by conservatives, who fear the use of social science findings to reduce the “cultural lag” between liberalizing popular attitudes and the traditionally conservative legal system (Friedman & Ladinsky, 1969).
We have looked at the development of social science’s role in the law and the conceptual basis of the controversies that surround it. We may now look at some typical examples of social science findings in action, and their implications.
William J. Chambliss (1969) examined the impact of legal sanctions on various types of deviance behaviors. He created a two-dimensional grid, plotting types of crime as instrumental (“practical”), such as burglary or parking violations and expressive (“emotional”), such as drug addiction and most murders. Against these he plotted crimes implying a high commitment to a criminal lifestyle (burglary, addiction) or a low commitment (parking violations, most murders). Legal sanctions were seen as most effective against low-commitment instrumental crimes, and least effective against low-commitment expressive crimes.
These findings, bearing in effect on the usefulness of punishment, are both useful to the criminologist and the sentencing judge, and politically provocative. Since most murders are impulsive and expressive, and not committed by career criminals, punishment is of limited deterrent value.
Ellen Hochstedler (1986) examined criminal prosecution of the mentally disordered and found a strong tendency against prosecuting disordered offenders, particularly for lesser offenses. While not overtly controversial, these findings touch on the role of mental disorders – essentially, something the public and the legal system depends on psychologists and psychiatrists to identify – in lessening the standard of personal responsibility for criminal acts.
Other researchers examined the workings of the legal system itself, in ways that might either undercut or reinforce the perceived effectiveness of the system. Reskin & Visher (1986) examined the impact of extra-legal factors (defendants’ appearance) on jury decisions, and found that juries depended most on such factors where evidence was weak – implicitly calling into question all cases decided where evidence was relatively weak. We accept that cases decided on weak evidence are weaker as a whole than strong-evidence cases, but these findings make these cases weaker still, by casting doubt on the fundamental way in which the juries made up their minds.
Yarbrough (1985) studied an issue which has been a major concern of conservatives: the growing administrative role of federal judges, as in school-desegregation and prison-overcrowding cases. His finding was that the judges’ decisions tended to represent “compromise and agreement [among parties to the dispute], not judges isolated impulse.” On the one hand this argues that the administrative role of judges is less arbitrary than it is often thought to be by opponents of that role. On the other hand, “compromise and agreement” are political processes, indicating that this role of judges may tend to politicize the judiciary.
We have seen that while the broad role of social scientists examining both the social conditions on which the legal system acts and the workings of the legal system itself, is a relatively new phenomenon, it has a history that goes back ultimately to the beginning of the rationalist conception of law as an objective inquiry into facts and circumstances. We have also seen that the issues for which sociological or psychological findings can be sought, range from the effectiveness of the law in controlling various types of crime, to the way in which the legal system itself responds in cases where evidence is more or less compelling.
Social science findings are not in themselves, necessarily liberal or conservative in their implications, even though popular mythology of the Dirty Harry sort uniformly attributes “bleeding-heart liberalism” to social scientists acting in and on the criminal justice system.
Can we, then, establish any objective standards for determining when social science should be admitted to the courtroom or to appellate review, and when it should be barred? Ultimately, we cannot: we are brought back to the great question which Julius Stone (1966) identified as the relationship of the legal order to the broader social order.
Courts are, among their other roles, political actors. Critics from all parts of the political and legal spectrum accuse their ideological and political opponents of “politicizing the courts.” Cases in which senior judges are directly involved in political debates – the California election campaign which removed Chief Justice Rose Bird from the California supreme court in 1986, the politically-charged Senate hearings that led to the rejection of Judge Robert Bork as a federal Supreme Court justice election campaign – are treated as shocking aberrations.
Yet, as the Bird and Bork cases show, “politicizing the courts” is a game all sides can and do play. And how can they not? Court decisions, from Dred Scott (affirming slavery) to Roe v. Wade (affirming the right to abortion) often touch on political values and political issues. And so, of course, do social science findings. Is a mother legally responsible for her daughter’s suicidal state of mind? Should she be? Should killers of whites be more likely to face the electric chair than killers of blacks? These are in the largest sense political issues; that is, issues that touch public values and the public philosophy. Neither judges nor social scientists can be isolated from their implications. Whether a given social science finding is legitimate is – must be – ultimately a political, not an “objective” question.