Randomization in Criminal Justice: A Criminal Law Conversation

24 Pages Posted: 2 Jul 2009 Last revised: 15 Apr 2015

See all articles by Bernard E. Harcourt

Bernard E. Harcourt

Columbia University; Columbia University

Alon Harel

Hebrew University of Jerusalem - Faculty of Law

Ken Levy

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Michael M. O'Hear

Marquette University - Law School

Alice Ristroph

Brooklyn Law School

Date Written: June 29, 2009

Abstract

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.

Keywords: punishment, punishment theory, randomization, randomness, chance, luck, lottery, penal lottery, detection lotteries, incapacitation, deterrence, just punishment, moral luck, attempt liability, criminal law, criminal justice, critical theory

Suggested Citation

Harcourt, Bernard E. and Harel, Alon and Levy, Ken and O'Hear, Michael M. and Ristroph, Alice, Randomization in Criminal Justice: A Criminal Law Conversation (June 29, 2009). CRIMINAL LAW CONVERSATIONS, Robinson, Ferzan and Garvey, eds., Oxford University Press, 2009; U of Chicago Law & Economics, Olin Working Paper No. 471; U of Chicago, Public Law Working Paper No. 267; Marquette Law School Legal Studies Paper No. 09-26. Available at SSRN: https://ssrn.com/abstract=1428464 or http://dx.doi.org/10.2139/ssrn.1428464

Bernard E. Harcourt (Contact Author)

Columbia University ( email )

Jerome Green Hall, Room 515
435 West 116th Street
New York, NY 10027
United States

HOME PAGE: http://www.law.columbia.edu/fac/Bernard_Harcourt

Columbia University ( email )

7th Floor, International Affairs Bldg.
420 W. 118th Street
New York, NY 10027
United States

HOME PAGE: http://polisci.columbia.edu/people/profile/1685

Alon Harel

Hebrew University of Jerusalem - Faculty of Law ( email )

Mount Scopus
Mount Scopus, IL 91905
Israel
97 22 588 2582 (Phone)
97 22 582 3042 (Fax)

Ken Levy

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

420 Law Center Building
Baton Rouge, LA 70803
United States

Michael M. O'Hear

Marquette University - Law School ( email )

Sensenbrenner Hall
P.O. Box 1881
Milwaukee, WI 53201
United States
414-288-3587 (Phone)
414-288-5914 (Fax)

Alice Ristroph

Brooklyn Law School ( email )

250 Joralemon Street
Brooklyn, NY 11201
United States

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