Some people just love empiricism. They don’t really “get” empiricism, but give ’em some stats and they get all warm and fuzzy, feeling more brilliant with every numeral. Unless the numbers don’t confirm their guts, in which case something is horribly wrong, though they don’t have a clue what. But it is.

At the adorable Marshall Project, the only media outlet to seriously discuss criminal law issues (since no one else on the internet does*) and which has graced our nation by putting together a fabulous group of writers who have a grand total of absolutely no experience in criminal law whatsoever, they offer a listicle of really cool empirical questions that, wait for it, no one can answer!

A few weeks ago, the White House trumpeted the progress of its Police Data Initiative. The nearly one-year-old project prods local cops to publish data on their operations in a bid to increase transparency and build trust with the communities they police.

The results were underwhelming. Of nearly 18,000 police agencies from coast to coast, just 53 had signed on to the effort. Of that inaugural class, eight released data on officer-involved shootings, and six published information on their officers’ use of force.

Another White House initiative dies in obscurity after a press conference. Shocking.  But clearly this must matter, or the Pulitzer Prize winning** Marshall Project wouldn’t waste its precious messiah time on it. So what are the 13 questions that we should, but don’t, have an answer to?

• how many people have a criminal record
• how many people have served time in prison or jail
• how many children are on some type of supervision or probation
• how many juvenile offenders graduate to become adult offenders
• how often people reoffend after being released from prison
• how many shootings there are in America
• how many police are investigated or prosecuted for misconduct
• how many people in America own guns
• how often police stop pedestrians or motorists
• how many incidents of domestic violence are reported to police
• what percentage of those eligible for parole are granted release from prison
• how many corrections officers are disciplined or prosecuted for abusing prisoners
• how many criminal cases are referred to prosecutors and how they decide which to pursue

All damn fine questions. In a world that presumes the existence of gnomes in secret hidden rooms tallying up everything that happens, we would hope to have answers to all of these, and more.  So why? Why are we denied this empirical information?

The excuses for why we don’t have better data about our police, our courts and our prisons may sound familiar to anyone who has worked in corporate America: there isn’t enough money to hire analysts; the IT department says it can’t be done; the chief is moving on to another department.

That’s it? Money?

Local autonomy has not been helpful for good criminal justice data. The fraction of the country’s 18,000 police departments that do collect figures on officers’ use of force have no consistent definition of what constitutes force.

Money and definitions? Anything else?

The Center for Policing Equity has been collecting data from police agencies on pedestrian and traffic stops as well as uses of force. The center’s co-founder Phillip Atiba Goff, a visiting scholar at Harvard’s Kennedy School of Government, said the National Justice Database has commitments from police departments that cover about one-third of the nation’s population. But for him, it’s not a matter of whether police are collecting data, but how they’re collecting it. Many departments, for instance, don’t collect the age of people who are on the receiving end of police officers’ use of force, or they may omit the reason why a suspect was stopped in the first place.

Money, definitions, and they just won’t do it the way some guy at Harvard wants them to do it?  Fair enough. No wait, not fair enough. Actually, it’s friggin’ idiotic. We have 18,000 police agencies, give or take a few hundred, because we’re a nation of jurisdictions, local, state and federal, each of which has control over itself.  And guess what? Their job isn’t to serve the interests of empiricists. There are no gnomes in secret backrooms in police departments collecting details to send to a central repository of number crunchers.

Because they’re police, doing police stuff. Sure, they define the word “force” differently. And if they are told to compile stats and don’t, what do you plan to do about? Shut the cops down?

But most importantly, these same people are actually engaged in the process of doing things that affect people’s lives every day. We want to make sure they’re doing it right, but at what price? Create a new federal bureaucracy to collect numbers so academics can write papers about the statistics?

In a perfect world, we would be able to accomplish everything for everyone. But in the real world, there isn’t enough money for public defense in Orleans Parish, so that Derwyn Bunton has had to refuse to defend human beings, sitting in jail, charged with crimes. Judge Arthur Hunter has cut some potentially bad dudes free for denial of their right to counsel. Because there’s no money.

If there is money to be had to collect data, because the cops will certainly honestly and accurately respond to a survey asking, “how many times have you lied on the witness stand, shot an innocent person because they annoyed you, and beaten your spouse,” there are far better uses for that money today than to worry about the lack of empirical data that makes some academics’ hearts go all atwitter.

As Judge Richard G. Kopf wrote,

In a perfect world, I don’t object to the federal government aggressively protecting a miniscule minority of strange kids if resources are unlimited. But we don’t live in a perfect world. Therefore, I do object to virtually ignoring the fact that thousands of poor blacks, poor whites, and poor Hispanics are constantly getting screwed by state court systems that are well-intentioned but grievously underfunded.

It’s not that the Marshall Project couldn’t muster a great list of empirical questions that should, but can’t, be answered. It’s that in the grand scheme of the allocation of scarce resources, there are real lives that come first.  And this is the criminal law source that’s going to save humanity? Not today.

*Some day, I may forgive and forget the Marshall Project’s hubris. Today is not the day.

**Neither I nor SJ has ever won a Pulitzer Prize.