Building a Policy Sandbox: An Opportunity for Comparative Sentencing and Corrections
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Building a Policy Sandbox: An Opportunity for
Comparative Sentencing and Corrections
SYNOVE
NYGAARD
ANDERSEN
Stati.stics Norway
and University of
Oslo
JORDAN M.
HYATT
Drexel University
1. Introduction
Comparative criminal justice research has the potential to
influence correctional policy, though there are many
obstacles. Employing an American-Norwegian lens, this
article investigates an opportunity to overcome some chal-
lenges through the use of a penal policy sandbox focusing
on implementable change. The outputs of the policy and
information exchanges that begin in a sandbox context can
provide the footholds necessary for implementable, and
potentially innovative, correctional reform.
Comparative criminal justice seeks to examine and
contrast different ways of responding to crime within
a society in order to answer questions of both a theoretical
and a practical nature. The goals of most comparative
criminal justice research today include evaluating theories
in new environs, assessing and explaining differences in
overall crime rates, contrasting the efficacy of national-level
systems, and addressing the growing problems associated
with transnational crime.' In the modem era, David Nelken
has argued that comparative work is about discovering
[both] surprising differences and unexpected similarities,2
often-though arguably not always-with a goal of learning
from what is done in other places in order to improve the
criminal justice system locally.3
Comparative criminal justice is not a new endeavor. In
the late eighteenth century, John Howard complemented
his descriptions of jails and mental hospitals in England
and Wales with parallel depictions of, and statistics
regarding, prisons in Spain, Portugal, France, Austrian
Flanders, Germany, and other nation-states in Western
Europe.4 Modern-day comparative criminal justice research
has developed into a diverse field that encompasses a range
of qualitative, ethnographic, and empirical approaches.5
Yet researchers still grapple with several fundamental
challenges, the most important of which is the inherent
difficulty of making valid and useful comparisons: while
apples-to-apples assessments are easy enough, many balk
when an orange enters the equation. Criminal justice sys-
tems comprise a complex set of legal authorities, institu-
tions, and programs. Attempting a national-level
comparison of these systems means that there are hun-
dreds of practical or ideological apples and oranges at play;
the combinations are myriad.
Moreover, this fundamental problem is accompanied by
the challenges inherent within both methods (e.g.,
Federal Sentencing Reporter, Vol. 31, No. i, pp. 14-20, ISSN 1053-9867, electronic ISSN 1533-8363.
©D 2058 Vera Institute of Justice. All rights reserved. Please direct requests for permission to photocopy
or reproduce article content through the University of California Press's Reprints and Permissions web page,
http://www.ucpress.edu/journals.php?p=reprints. DOI: https://doi.org/lo.I525/fsr.2018-31.I.14.
FEDERAL SENTENCING REPORTER * VOL. 31, NO. 1 * OCTOBER 2018
14
incomparable measures or unreliable data) and contexts
(e.g., cultural and linguistic biases). These nearly omni-
present critiques have led to claims of comparative research
being nothing more than an excuse for international
travel, an exotic frill, or even a luxury that serious social
scientists leave to dilettantes.6 More conservatively, com-
parative criminal justice has been described as having hit
a bit of a nadir and being in a perennial state of having
a point to prove.7
While comparative criminal justice research suffers
from clear limitations, case studies of institutions and sys-
tems in individual countries-as well as theoretical and
quantitative cross-national analyses of the predictors of
crime rates and punishment pattems-have proliferated.8
The same is true with regard to writings that detail potential
solutions to these challenges. For instance, Nelken argues
that there are two primary (and oppositional) obstacles to
utilizing comparative criminal justice research: (i) ethno-
centricism, the assumption that our way of thinking about
and responding to crime is (or should be) universally
shared; and (2) relativism, the view that we are incapable of
really grasping what others are doing and why, and that we
therefore can neither judge nor learn from it.9 He proposes
that avoiding these obstacles requires a careful mix of
explanatory and interpretative strategies, whereby attention
is paid to what exactly foreign jurisdictions are actually
doing. Richard Frase, almost three decades earlier, had also
noted that a major shortcoming of the literature at that time
(and still a shortcoming today) is that it forces our focus
toward extreme differences and similarities, instead of
toward identifying viable legal transplants-ideas that
could both travel and act as a starting point for actual penal
change.'o
In line with this set of perspectives, the present article
explores one of many ways that comparative research could
be refrained in order to be more likely to lead to actionable,
implementable penal change. We use Norway as a focal
point because it holds a prominent position in many public
comparative criminal justice debates. In these conversa-
tions, Norway has, however, primarily served only as
a penal poster child-that is, as a counterfactual for what
is wrong in the United States. This idealized (and arguably
xenocentric) role of Norway has, however, led to very little
real-world, measurable change in American crime policy
or practice, and comparative justice does not hold](ViewImageLocal?handle=hein.journals/fedsen31&div=6&collection=&method=preview&ext=.png&size=3)
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Building a Policy Sandbox: An Opportunity for Comparative Sentencing and Corrections
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