“Aggregation at the Bottom”

The title of this post is the title of this new paper now available via SSRN authored by Seema Saifee. Here is its abstract:

Scholars and reformers who aim to reduce reliance on incarceration offer different visions for how to achieve that change.  Some call for technocrats to play a greater role in criminal policy making.  Another camp supports shifting power downward to populations most harmed by mass incarceration.  Many scholars describe these approaches as advancing competing visions of expertise.

The framework of expertise is incomplete; the label does not fully capture the ways in which traditionally powerless populations produce knowledge.  This Article introduces a less visible way that directly impacted people uncover systemic problems in criminal law and policy and shape new ideas to intervene in those problems — what I call aggregation at the bottom.

American criminal punishment operates collectively.  As a consequence, mass clusters of people experience the same legal or social disadvantage, often alongside each other.  For judges, prosecutors, and academics, these facts are highly dispersed.  But in prisons and neighborhoods that disproportionately replenish prisons, empirical facts emerge in systemic form — the same unusual verdict, the same forgotten plea deal, the same social disadvantage.  In these low-status spaces, people observe, collect, and conceptualize recurring legal and social facts in the aggregate to intervene in group-based problems in criminal law, procedure, and policy.  Outside these spaces, many community-based allies take a similar approach.

This Article engages with and broadens criminal law scholarship on aggregation.  It begins by surfacing a unifying theme in the literature on aggregation: criminal law scholars value aggregation as a path to seeing recurring problems and intervening in those problems more systemically.  Put simply, criminal law scholars champion aggregation as a path to change — but only when the aggregators are in positions of power.  It then introduces and conceptualizes aggregation as a path to change from below.  This Article argues that an innovation that legal scholars have deployed to improve the criminal system from the top down — aggregation — opens a window into an approach to reduce incarceration from the bottom up.  Shifting this perspective reveals that the “data-driven” approach to criminal law reform excludes data that is created from below that can open up new paths to reduce incarceration and reduce crime.  Aggregation is not just one source of knowledge, but it is an understudied source of power at the bottom.