The belief that policies and procedures should be data-driven and “evidence-based” has become criminal law’s leading paradigm for reform. This evidence-based paradigm, which promotes quantitative data collection and empirical analysis to shape and assess reforms, has been widely embraced for its potential to cure the emotional and political pathologies that led to mass incarceration. It has influenced reforms across the criminal procedure spectrum, from predictive policing through actuarial sentencing. The paradigm’s appeal is clear: it promises an objective approach that lets data – not politics – lead the way and purports to have no agenda beyond identifying effective, efficient reforms.
This Article challenges the paradigm’s core claims. It shows that the evidence-based paradigm’s objectives, its methodology, and its epistemology advance conventional assumptions about what the criminal legal system should strive to achieve, whom it should target, and whose voices and interests matter. In other words, the evidence-based paradigm is political, and it does have an agenda. And that agenda, informed by neoliberalism and the enduring legacy of white supremacy in the criminal legal system, strengthens – rather than challenges – the existing system.
The Article argues that, if left unchallenged, the evidencebased paradigm will continue to reproduce the system’s disparities and dysfunctions, under the veneer of scientific objectivity. Thus, it must be abolished and replaced with a new approach that advances a true paradigm shift about the aims of criminal legal reform and the role and definition of data and empiricism in advancing that vision.
© 2022 Brigham Young University Law Review
Abolishing the Evidence-Based Paradigm,
48 BYU L. Rev.
Available at: https://digitalcommons.law.byu.edu/lawreview/vol48/iss2/6