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"Smart people (like smart lawyers) can come up with very good explanations for mistaken points of view."

- Richard P. Feynman, Physicist

"There is a danger in clarity, the danger of over looking the subtleties of truth."

-Alfred North Whitehead

July 2, 2010

A Clash of Knowledge Cultures

The National Institute of Corrections (NIC) has been working on a project called “The Evidence-based Decision Making in Local Criminal Justice System Initiative”. Chief Justice Abrahamson, of the Wisconsin Supreme Court, is a member of the advisory board. NIC has recently solicited applications from cities and counties to become possible study sites for implementation of its framework that uses evidenced-based practices throughout the criminal justice system.

The goal of this project is to reduce criminal recidivism, and therefore reduce the number of people victimized by crime. The initiative borrows a model from the medical community that used evidence-based medical practices to successfully reduce deaths in medical patients called the “100,000 Lives Campaign”.

The framework can be accessed at: A Framework for Evidence-Based Decision Making in Local Criminal Justice Systems

Appendix Three to this document is a matrix of research findings about what works and doesn’t work to reduce pretrial misbehavior and criminal recidivism, and is worth the look by anyone involved in the criminal justice system.

This project is an ambitious attempt to use those practices that research has shown to be effective throughout the criminal justice system. The project’s leaders appear to understand the difficulty of the endeavor, and are attempting to carefully implement the framework in selected jurisdictions.

This initiative correctly recognizes differences between the medical system and the legal system and the resulting challenges due to these differences. However, I believe the authors of the initiative have missed a fundamental and critical difference between the medical and the legal community—the difference in each community’s functional theory of knowledge. I believe most lawyers view knowledge and its acquisition much differently than most physicians.

Medical training and medical practice are essentially science-based resulting in an evidence-based theory of the acquisition and creation of knowledge. Knowledge is understood to be developed through controlled empirical studies and through systematically collecting data of the results of replicated practices. Criticism is encouraged, and helps the “sifting and winnowing” of information. Physicians are trained in and habituated to problem solving using science-based principles.

Legal training and legal practice are essentially not science-based, but rather have (and to a large degree must have) an authority-based theory of knowledge. For example, the answer to a legal question is correct, not because of some empirical research has shown it to be correct, but because four members of the Wisconsin Supreme Court have said it was correct—end of story.

Lawyers and judges are accustomed to obtaining knowledge through accepting the views of those highest in the hierarchy who have addressed the issue. For example, what did the U.S. Supreme Court have to say on the issue? When the authorities have spoken clearly on the issue, there is little further argument and criticism is strongly discouraged—at least in the adjudicative forum. Dissent is not generated by the expounding of conflicting empirical studies or rational arguments from these studies, but by expounding conflicting authorities (which embody different values) and rational arguments there from. Most lawyers are not trained in scientific design and quantitative methods and are not accustomed to obtaining knowledge through critical evaluations of empirical studies.

I believe (here I go making a statement without any empirical evidence—however I am a lawyer (I can also say I have a hypothesis)), that for many legal practitioners, using the scientific method will be foreign, unfamiliar, and at times, threatening. Science has a history of appearing threatening to authoritative pronouncements—ask Galileo. Where physicians may readily accept the conclusions of published scientific studies, lawyers, because of the knowledge culture in which they are enmeshed, may hesitate. They may remain unconvinced. This epistemological difference will challenge NIC’s implementation of its “Evidenced-based Decision Making in Local Criminal Justice System Initiative”. I wish NIC well in its endeavor.

The views expressed in this blog are solely the views of the author(s) and do not represent the views of any other public official or organization.

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