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When it comes to the opaque domain of criminal justice's inner workings, statistics have a penetrating potential that scholars and officials have deployed in governing discretion, achieving accountability, and revealing systemic faults. The growth of sophisticated scholarship and ideas adapting quantitative technology to unveil the hidden, spur debate, and police bad behavior is an important movement. Yet this Article sounds a note of caution against the primacy of numbers in disciplining criminal justice practices. This Article does not take aim at numbers deployed to correct, monitor, and reveal as an adjunct to serving public values. Rather, the Article's concern is about numbers becoming an end or target in criminal justice, becoming the value rather than serving as a technology toward higher aims and principles. The concern is about how statistics of people prosecuted and cases won, divorced from qualitative details and isolated from context, are officially deployed as a proxy for performance in criminal justice, in place of substantive aims that have proved difficult to attain or denominate in determinate ways.[para] The analysis proceeds through two case studies. Part I examines how the Government Performance and Results Act responded to widespread public criticism of federal government performance by making numerical targets the standard of performance and qualitative depiction a deviation that bore the burden of justification. The case study examines how the Department of Justice tried to resist the denomination of the duty of "doing justice" in terms of output targets, repeatedly explaining the potential for perverse consequences and that justice is ill-served by reduction to numerical outputs like quantity of people prosecuted. Part I then assesses the recent reversal of commitment to this principle and the turn to officially denominating performance in terms of numbers of people prosecuted and win rates.[para] Part II examines how substituting numbers of people prosecuted for intractable goals is ...

The national broil over immigration reform is fermenting an illusory correlation and mistaken heuristic. Two events illustrate the involvement of legislators in the manufacture and mplification of this heuristic mistake. A controversial bill passed by the House of Representatives in December 2005 explicitly and extensively packaged immigration control with antiterrorism.' During his term as a congressman, J. D. Hayworth published a book claiming that inflows of people over the U.S.-Mexico border pose a "terrorist threat," that the nation has witnessed an "illegal alien crime spree," and that high immigration rates from Mexico threaten social instability.[para] Such pronouncements by legislators generate an illusory correlation between immigration and terrorism. Illusory correlations are distorted perceptions of correlation, including seeing correlations that do not exist or overestimating real correlations. Juxtaposing undocumented immigration with terrorism produces an illusory correlation, because the vast majority of undocumented immigrants remain today what they have long been—people in search of a better life, not terrorists intent on destroying life.[para] The Article also highlights the danger of manufacturing a decisional heuristic through an illusory correlation. The danger is to social cognition. When a group of people are cognitively effaced to simplify policy decisions, we risk planting fear and hostility where none existed before or ramping up existing fear and mistrust to proportions far exceeding rational justification. The people most likely to be effaced by legislative promulgation of illusory correlations are the unrepresented or underrepresented because they lack the typical voter check to jolt more careful rhetoric.[para] This Article proceeds in three parts. Part I analyzes how legislator-promulgated illusory correlations can generate distorted decisional heuristics. Part I uses the December 2005 House bill mixing immigration control and antiterrorism and Congressman Hayworth's Whatever It ...

For decades, criminal justice officials have based key decisions about a defendant's fate and crime deterrence on a tool deplored by practitioners for its indecipherability and potential for inaccuracy or incompleteness—the rap sheet. Though the Supreme Court's criminal rights evolution progressed late last year to requiring rigor in documenting penalty maximum-enhancing prior convictions, the problem of the rap sheet has received little notice from jurists and scholars because the rap sheet plays its central role in discretionary decision-making areas shielded from scrutiny.[para] The rap sheet is not just a practitioner's problem. The flawing of the rap sheet is a parable about the perils of a judicial doctrine that was ostensibly overruled and then resurrected in a more potent incarnation. The story of how rap sheet flaws came to be is also a tale of federal timidity in taking an essential leadership role because of judicial rhetoric and rules about noninterference with traditional state functions like criminal law enforcement. Lost in the contortions of the traditional state functions doctrine over the decades is a necessary countervailing federalism-based doctrine permitting national leadership on problems calling for a coordinated solution.[para] The federal government has no business and no interest in regulating many issues within domains traditionally controlled by the states. But submerged within traditional state domains are problems, like rap sheet flaws, that call for national policy innovation and leadership unchilled by federal timidity in spheres of traditional state control.[para] This article finds buried in the rise, demise, and stealth resurrection of the traditional state functions doctrine the roots of a countervailing principle. The contours of the principle have been obscured in the contortions of federalism doctrine over the decades. This article derives from the evolution of the traditional state functions doctrine a countervailing federalism-based principle permitting fruition of ...