Editor?s note?Jonathan Simon is the Adrian Kragen Professor of Law at UC Berkeley, where he teaches classes on criminal law and socio-legal studies. Simon is the author of multitudinous law review and criminology articles as well as several monographs, including Governing through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford University Press, 2009), and the forthcoming Mass Incarceration on Trial: America?s Courts and the Future of Imprisonment (New Press 2013). Simon?s post today closes out our series on HBO?s The Wire with a consideration of the overlaps?and gaps? between the show?s narrative ?realism? and the empiricism that goes by that name in the contemporary legal academy.
The popularity of HBO?s The Wire among legal academics ? especially scholars of criminal law?responds to the same transformations in the legal field that have made empirical studies increasingly influential there.? But might the satisfaction of getting ?realism? from a DVD (or download) deter a scholar from trading the couch for the backseat of a police car?
This is What Empiricism Looks Like
Empirical knowledge about law is enjoying unprecedented prestige in both law schools and courts. These days, top candidates for academic law teaching jobs frequently show up at faculty interviews with their lap-tops loaded up with regression tables, scatter-plots with lines fitted, a nifty difference of differences tests.? If they get pushed by the audience, it is likely because someone thinks they should have used a different form of multivariate analysis.? It is ok for someone to ask them to articulate the normative pay off of their analysis, law professors are supposed to do that, but not to bother them with the meaning of a series of Supreme Court precedents they might or might not have read.? And it is not only quantitative research that is displacing philosophical conundrums and doctrinal searches for principle from the pages of the nation?s law reviews: ethnography, qualitative interviews, and discourse analysis are also making their mark on a field once known for ?black letter[s].?
It is in the context of this empirical moment of legal knowledge that we might appreciate the wide appeal of The Wire among law professors, who have discussed it in thirteen law review articles and many other journals and book chapters since 2009, including a symposium in the Ohio State Journal of Criminal Law.? The show?s following among professors of criminal law and procedure reflects the degree to which, for scholars of criminal law and justice in particular, The Wire has filled a real need for an empirical object of analysis that has remained frustratingly absent even as the war on drugs and mass incarceration has pushed them to go beyond case law and statute.? In this post I want to suggest transformations of the legal field that have given rise to a desire for an empirical object, even one that has to be largely imagined. These transformations include:
The Primacy of Policy
The question of whether a particular reading of the law is correct has always fascinated lawyers; what has changed at the turn of the century is the degree to which this question had merged with the question of whether that particular reading will lead to good public policy.? With the rise of law and economics this has included not just public areas of law, like criminal or constitutional law, but also classic private areas of law.? Indeed, some orthodox economists have argued that welfare gains (economist talk for policy outcomes) are the only consideration appropriate to law.
Twenty years ago when I started teaching, the idea that criminal laws and justice agencies operated in a wholly different manner for young men of color in urban neighborhoods than for suburban whites was still largely ignored by casebooks. Today that background has come into the foreground.? The idea that mass incarceration is a new Jim Crow (as the title of Michelle Alexander?s best-selling book about the racial character of criminal law enforcement makes clear), is today widely recognized by law professors and many if not most of their students.? The idea that the disproportionate racial impact of arrest and incarceration policies has undermined the effectiveness and legitimacy of our criminal justice system is also becoming a new common sense, as brilliantly expressed in the late William Stuntz?s posthumously published The Collapse of American Criminal Justice (2011).
The Wire aired during the decade when what my colleague Frank Zimring calls The Great American Crime Decline was becoming visible.? It created a rich, albeit fictional information environment in which the gathering critique of mass incarceration on sociological grounds could be documented and its relationship to the machineries of justice made visible.? After all, the other narrative, the one in which criminals are rational bad actors making real and morally salient choices in a landscape of freedom and personal effectiveness has long been promoted by popular police television shows.? As legal scholar Bennett Capers wrote in the introduction to the Ohio State Journal of Criminal Law symposium:
Law and order shows, especially the ones that give the illusion of being police procedurals, are uniquely positioned to critique this justice. Law and order shows, at their best, bring out of the shadows the justice that actually exists. No show does this better than The Wire.
?A Great Moment of Civic Compromise?
For legal academics, who want not just to understand the failure of contemporary crime policies but to promote alternatives to them, The Wire offered up experiments unavailable in even the most progressive cities.? If the war on drugs was generating a lucrative industry of arrest and incarceration without? bringing peace or dignity to the streets of Baltimore (or any other large American city), what would happen if police allowed the drug markets to operate in the open on an agreement to operate without violence and to keep it out of sensitive areas?? Season 3?s ?Hamsterdam? episodes, when a frustrated police commander decides to run that experiment, represented a socio-legal public policy experiment as rogue police operation, itself a biting critique of what remains the official drug war criminology of the federal government and most criminologists.
New Technologies and the Ability of Law to Govern Society
The empirical turn in law has tracked alongside the rise of new technologies, especially the personal computer and telecom, that have transformed the economy and fundamentally reordered both the way legal rules touch on people?s lives and the capacity of law enforcers to know and act on them.? Throughout its five seasons, The Wire managed to make the technologies through which police and drug dealers watch each other and communicate a persistent theme.? The title?s evocation of wiretapping links the show to the recent pre-digital past, in which a great deal of our criminal procedure around policing was developed in the 1960s and 1970s.? As Season 2 revealed, the rapid spread of cell phones among drug dealers (and other young people) was making the wiretap, one of the stronger points of judicial control over police action, increasingly irrelevant.? Season 3, which brought us back to a close look at the Barksdale organization under Stringer Bell, included memorable scenes of Stringer at his laptop running Business School-like applications to improve his drug distribution business.? Throughout the series, the title sequence showing the surveillance camera capturing its own damage by a rock was a reminder of the vulnerabilities of law enforcement that relies on technologies of surveillance rather than real communication between police and the communities they are supposedly making safer.
Crime and Punishment
Crime, and the social response to crime, has long been taken as a proxy for the basic American attitude toward law.? The proliferation of alcohol-trafficking related crime in the 1920s after national prohibition, and the resulting increases in imprisonment and the growth of new enforcement agencies, helped stimulate the first great wave of interest in empirical research among legal academics, known as ?legal realism.?? Since the 1990s both the significant rise of the prison population and its connection to intense policing of drug sales, especially in low income minority majority neighborhoods, has grown as a significant concern among legal scholars. Since the end of that decade, this has been joined by the question of what caused the substantial nationwide drop in crime that began early in the 1990s and has so far leveled off but not been reversed. (On this point, in addition to Zimring?s book noted above see The City that Became Safe: New York?s Lessons for Urban Crime and Its Control [2011].)
The Wire was produced during years when the crime decline was becoming visible? to criminologists but had not yet begun to really influence thinking about criminal justice policy. Its basic message, that there is little we can do to arrest our way out of the toxic tangle of inequality, mistrust, and violence in high crime urban neighborhoods, needs little revision.? Whatever the best police departments managed to do in the mid-1990s to drive down crime, it was not happening in either the real or the fictional Baltimore, and still has yet to happen in many cities across the United States.? In keeping the focus on police failure, The Wire helped solidify what has become a new common sense among academic criminal law experts, namely that aggressive enforcement of drug laws targeting the young men most often recruited to be the exposed element of drug distribution networks cannot create more secure neighborhoods.
Serving the Public Good, the Western District Way
Empiricism from the Couch
I have suggested that popularity of The Wire among criminal law academics reflects its fit with broader transformations in law and society that have made empirical knowledge about law more salient then ever before. The Wire was based on both good journalism grounded in local knowledge of Baltimore, and the best available sociology, grounded in William Julius Wilson?s understanding of America?s urban crisis, so it is perhaps a reasonable substitute for the robust empirical research on contemporary urban policing that is much needed but still relatively rare.? Half a century ago, the publication of Jerome Skolnick?s Justice Without Trial (now in its third edition), helped launch both an academic industry in ethnographic studies of policing, and a popular culture shift toward realism in the portrayal of police procedurals on television.
Today The Wire has not so much displaced Skolnick as helped make up for the absence of? social science empiricism on policing. ?While a flood of statistics about the performance of criminal justice agencies are now readily available, qualitative knowledge of how those agencies actually operate on citizens, especially through policy, remain rare and subject to the whim of local officials. ?A strong indicator of that is the tremendous reception among criminal law scholars of Richard Leo?s definitive empirical study of how police coerce confessions, Police Interrogation and American Justice.? Leo, a student of Skolnick?s, demonstrates the continuing demand for empirical knowledge of police practice?a demand that has been, if anything, primed rather than diminished by watching The Wire.
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