Tuesday, June 21, 2016
This Response to Andrew Manuel Crespo's Systemic Facts: Toward Institutional Awareness in Criminal Courts proceeds in two Parts. In Part I, I argue that Crespo presents a compelling case for the importance of systemic factfinding to the task of criminal court judges. If, as a range of scholars has argued, criminal courts are increasingly serving a quasi-administrative function, then shouldn’t they at least be administrating accurately? Systemic Facts provides a novel account of how — with comparatively little institutional reform — courts might begin to serve as more effective administrators. However, in Part II, I also argue that Crespo’s account largely takes for granted the unmitigated benefit of more data and more information. I argue that Crespo’s account understates the indeterminacy of systemic facts and the ways in which data rely on interpreters and interpretations. To the extent our criminal justice system already suffers from the assumptions and biases of judges and other official actors, granting those same actors the ability to interpret a wealth of data or “facts” need not dictate a move toward greater justice or greater accuracy. Rather, it might allow the same actors to reach the same decisions, supported by the same underlying assumptions, but bolstered by a powerful new dataset. Ultimately, systemic factfinding might highlight the problems with criminal courts, but it would not necessarily provide a vehicle for reform or redress.