International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

Contents lists available at ScienceDirect

International Journal of Law, Crime and Justice

journal homepage: www.elsevier.com/locate/ijlcj

Narrative criminal justice

Dan Jerome S. Barrera∗
College of Criminal Justice Education, Negros Oriental State University, Dumaguete City, Negros Oriental, Philippines

ARTICLE INFO ABSTRACT

Keywords: Criminal justice is replete with positivistic theories of decision making. However, such theories
Criminal justice fail to acknowledge the interpretive nature of criminal justice agents and their decisions. This
Decision-making paper outlines a narrative approach to criminal justice decision making hinged on the philoso-
Narratives phical works of Paul Ricoeur. The paper argues that criminal justice professionals are “story-
Hermeneutics
telling animals” whose decisions and actions are teleologically determined through narratives or
Ricoeur
stories, which are primary meaning-making tools. Decision making is placed under the quasi-
causal model of action where action is described, narrated, and prescribed. To arrive at a deci-
sion, however, there is a need for a dialectical interweaving operation between narrative inter-
pretation and argumentation with which one arrives at a decision. A research agenda to move
“narrative criminal justice” forward is suggested.

1. Introduction

Criminal justice is a relatively young field that lags behind its parent discipline, criminology, in terms of its theoretical
development (Hagan, 2015). Nevertheless, over the past three decades several criminal justice theories have emerged (Maguire
and Duffee, 2015). For instance, Steffensmeier et al. (1998) introduced the focal concern theory to explain criminal sentencing
through three key concerns – blameworthiness of the offender, protection of the community, and practical consequences of the
decisions. The theory proved to be popular in the field and have been tested to explain decision making in the police (Crow and
Adrion, 2011; Higgins et al., 2012), prosecution (Shermer and Johnson, 2010; Ulmer et al., 2007), and corrections (Huebner and
Bynum, 2006). Other well-known theories include uncertainty avoidance/causal attribution theory (Albonetti, 1986, 1991),
racial/ethnic threat theory (Feldmeyer and Ulmer, 2011), and criminal justice as a loosely coupled system (Hagan, 2015; Hagan
et al., 1979).
These theories, however, are couched in the scientific model of social science perspective, which tend to limit theoretical
growth in the field by excluding the interpretive nature of the criminal justice agents (Crank and Bowman, 2008). Recently,
however, Crank and Bowman (2008) and Crank and Proulx (2010) introduced the hermeneutic model of the social sciences in
criminal justice theory. They argued that human actions could not be fully understood if they are divorced from the historical
contexts of criminal justice agents, because such contexts supply the interpretive tools that guide actions. They found support
from Somers (1994: 607) who argued for “social action and social agency that is at once temporal, relational, and cultural, as well
as institutional, material, and macro-structural.” Somers suggested the use of narratives1 as the “ontological condition of social

∗
Tel.: +63 35 225 9400 (Loc. 173).
E-mail addresses: danjerome.barrera@norsu.edu.ph, barreradanjerome@yahoo.com.
1
I use narratives and stories interchangeably in this paper. Narratives are retrospection as well as projection of a series of events that imply
“causal” relations. For example, “The suspect runs. The police runs” is a chronicle, but “The suspect runs and then the police runs to arrest him” is a
story.

https://doi.org/10.1016/j.ijlcj.2019.06.004
Received 14 December 2018; Received in revised form 18 April 2019; Accepted 17 June 2019
1756-0616/ © 2019 Elsevier Ltd. All rights reserved.

Please cite this article as: Dan Jerome S. Barrera, International Journal of Law, Crime and Justice,
https://doi.org/10.1016/j.ijlcj.2019.06.004
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

life … and that stories guide action” (p. 614). Crank and Bowman/Proulx hinted at the importance of the use of narratives in the
hermeneutic model of criminal justice,2 but their work failed to specify how such narratives function to guide criminal justice
agents' actions.
In this paper, I continue the line of theoretical development started by Crank and Bowman (2008) and Crank and Proulx (2010) by
outlining a narrative theory of criminal justice. I view criminal justice agents as “storytelling animals,” whose decisions are tele-
ologically determined. I use and elaborate much of the philosophical work of Paul Ricoeur (1984, 1992, 2000) on narratives as my
guide in placing criminal justice decisions in a quasi-causal model of action, as illuminated by narratives. I also provide a research
agenda for narrative criminal justice to move forward. This does not mean, however, that the narrative perspective has not been used
previously in criminal justice. Ugelvik (2016) might be right in saying that criminal justice receives little attention from narrative
criminologists. But the narrative approach in criminal justice has long been used to characterize behavior in the field. One example is
the bulk of research in the line of work in police storytelling (Van Hulst, 2013). However, this work is more in the side of stories as
mimetic copies of actions. What I am interested is the reverse: decisions and actions as mimetic copies of stories. This “strong”
approach, as Zilber (2018) describes, has been exemplified by the work of Pennington and Hastie (1991, 1992) and others. But before
dwelling more in this approach, I will first take a detour towards the nature of decisions and decision-makers in criminal justice.

1.1. Decisions and decision-makers in criminal justice

Criminal justice can be seen as a system of decisions (Gottfredson and Gottfredson, 1988). The system would never be invoked
without the decision of the victims and others to report a crime. This decision will then trigger subsequent decisions from the police.
For example, should the police issue a warning to the offender or make an arrest? And how would such arrest or warning be done? In
line with the law or not? Next, should the prosecutor charge the suspect before the court or not? If yes, how would such case be acted
upon by the court? Should the court convict or acquit the offender? If the former, what penalty should the offender receive? Shall he
go on probation or to jail/prison? How would probation officers or jail/prison officers treat him/her? These are just few of the many
decisions that the system is founded upon.
Gottfredson and Gottfredson (1988: v) quoted Wilkins' definition of decision as “that decision among those possible for the
decision maker which, in the light of the information available, maximizes the probability of the achievement of the purpose of the
decision maker in that specific and particular case.” Such definition comes from statistical decision theory. With this, Gottfredson and
Gottfredson aimed to provide mechanisms for a “rational decision” by suggesting guidelines in decision making in criminal justice.
However, as widely-known in decision science, decision makers can never be fully rational, they are bounded rational (Simon, 1955,
1997) and prone to errors and biases in making decisions (Kahneman, 2011; Tversky and Kahneman, 1974). This is why, for example,
departures from sentencing guidelines and sentencing disparity is common (Kramer and Ulmer, 1996, 2002; Ulmer, 2014). Criminal
justice agents face “uncertainty” (Albonetti, 1986, 1991) and “deep complexity” (Thiele, 2006: 9) in rendering decisions, and thus
they use “perceptual shorthand” (Steffensmeier et al. (1998) to reduce such uncertainty and complexity.
I argue that such perceptual shorthand is informed by narratives. This is because “man in his actions and practice, as well as in his
fictions, essentially a story-telling animal” (MacIntyre, 1981: 216). Evidence from neuroscience shows that human mind is indeed a
storyteller (Gottschall, 2012; Thiele, 2006; Walker, 2012). As MacIntyre puts (1981: 216) “I can only answer the question 'What am I
to do?' if I can answer the prior question 'Of what story or stories do I find myself a part?' Decision makers and their decisions,
therefore are inherently narrative in nature. For example, Kahneman (2011), based on experimental research on biases in choices,
argues that there are two types of self – experiencing and remembering. And he concluded that life is a story, because it is the
remembering self that influences more the subsequent choices of a person than the experiencing self. It is not the duration of
experience, but the sequence of its events that influences choices. We can then replace the rational definition of decision making with
practical decision making or judgment as “the faculty that allows one to apprehend stories in progress – to predict with some
assurance what events will occur based on the characters involved and the circumstances at hand, and to state with some authority
what events should occur to achieve the best practicable results.” (Thiele, 2006: 247).

1.2. Previous works on narratives in criminal justice

Indeed, preliminary empirical work on narratives in criminal justice shows that narrative influence decisions made by criminal
justice agents. The bulk of this work is under what Pennington and Hastie (1991, 1992) called the story model of juror decision
making. The story model suggests that evidence presented in trial is spontaneously crafted into narratives, and the type of narrative
(not the evidence themselves) influence decisions. The same evidence storied differently may yield a different decision. Also, the
model argues that coherence and coverage of the narrative affect the believability of stories constructed. A similar proposition can be
found in the work of Bennett and Feldman (1981). This body of work suggests the importance of internal coherence of narratives.
What this work, however, has neglected is the importance of external coherence or narrative fidelity – “whether or not the stories
[we] experience ring true with the stories [we] know to be true in [our] lives” (Fisher, 1989: 64).
Narrative fidelity in criminal justice was best illustrated by Dworkin (1986, 1985; 1982). To answer the problem on hard cases

2
For example, Crank and Brown (2008: 569) said: “The gathering together of many individual narratives provides meaning to historical events as
they were understood by their participants. Indeed, it is primarily through the interpretive work, the thick descriptions provided by oral histories
and interviews, that one can make sense of it.”

2
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

and refute positivist perspective on law, he drew on literature in theorizing trial decisions. He calls his thesis as “chain novel” wherein
“a group of novelists writes a novel seriatim; each novelist in the chain interprets the chapters he has been given in order to write a
new chapter, which is then added to what the next novelist receives, and so on” (Dworkin, 1986:229). These novelists “aim jointly to
create, so far as they can, a single unified novel that is the best it can be” (p. 229). Each chapter are comparable to each of the
decisions made by the judges, thereby rendering subsequent decisions being informed by the previous ones, which are former's
precedents. This calls for narrative fidelity, wherein present decisions must “ring true” with precedents, which are themselves stories.
At the heart of this operation is interpretation using hermeneutic rules of holism, wherein the interpretation of the parts must fit the
interpretation of the whole.
Although narrative coherence and fidelity are important in decision making, Paul Ricoeur (2000) argues that they are not enough,
especially when two or more interpretations are equally coherent. There must be some operation that can lead one to prefer one story
over another. Ricoeur proposes argumentation to fill this gap. Ricoeur pointed out that Dworkin (1985) overlooked this possibility
due to his preoccupation with interpretation in refuting the positivist conception of law, especially the “no right answer thesis.”
Dworkin, in his attempt to checkmate positivists, argued (successfully) that even in cases to which the law is silent or no law is seen to
cover them, there is still an answer which does not come from rules but from principles. This then affords us of not resorting to
arbitrariness of rendering to the judge a discretion making him the legislator. He used the literary model, specifically the narrative
model (as discussed above) to justify his theory.
However, as Ricoeur (2000) pointed out, Dworkin (1985) failed to move his theory towards the recognition of the role of
argumentation in interpretation and vice versa. We can find in the works of Robert Alexy (1989) and Manuel Atienza (1989) the
hallmarks of argumentation and its norms. And these norms constrain the parties in the argumentative process that tend to untangle
the conflicting interpretations of the facts of the case. Ricoeur, however, argues that argumentation's attempt to subsume a case under
a rule cannot escape interpretation. For example, both of Alexy's internal and external justification in argumentation cannot escape
interpretation. The logical coherence of premises and conclusion and the justification of such coherence demand interpretation of
facts and rules as the subsumption of a case under a rule is never a straightforward affair.
Thus, Ricoeur (2000) suggests that interpretation and argumentation are not totally opposed but instead their relationship is
dialectic in nature. That is, they presuppose each other: argumentation needs narrative interpretation, and vice versa. This makes his
contribution to both narrative theory and argumentation unique. And we can use his theory to illuminate decision making in criminal
justice albeit some elaborations.

2. Narrative criminal justice: lessons from Paul Ricoeur

In this section, I provide a fuller account on how narratives influence decision-making in criminal justice based on Paul Ricoeur's
(1984; 1992; 2000) philosophy on narrative and decision making. First, I will discuss Ricoeur's conception on the relationship
between narrative and action in general. Then, I will illustrate the type of explanation narrative brings. Finally, decision-making as a
narrative interpretation/argumentation dialectic is discussed.

2.1. Narrative and life/action

The relationship between narrative and action is a bit tricky and hotly debated in literature and theory (Meretoja, 2014). One
camp argues that narrative is just a mode of representing life in general and action in particular (e.g. Mink, 1970; White, 1980). As
such, narrative turns the chaotic world of events into fine, comprehensible stories. In this stance, “stories are not lived but told”
(Mink, 1970: 557). The other camp, however, take the opposite – stories are lived (e.g. Carr, 1986; Hardy, 1968; MacIntyre, 1981).
We live our lives and act narratively; that is, we act as if we are writing our story. Stories provide schemas and we act by filling in the
blanks of such schemas. But as Bruner (1987) suggests the relationship between narrative and life/action is a two-way affair:
“Narrative imitates life, life imitates narrative.” This two-way affair is best illustrated by Ricoeur (1984) who mediates these two
camps by introducing his mimetic circle.3
Ricoeur (1984) views the relationship between narrative and time (and action) in three forms of mimesis - Mimesis1, Mimesis2,
Mimesis3. Mimesis1 roughly corresponds to the view on the narrativity of life and action. However, Ricoeur (1984:74) regards this as
“inchoate narrativity” – the “prenarrative quality of experience.” Life and action seems to follow a story, however, this demands a
formal telling to be called a story since experience is complex. Unintended events occur and actors experience unintended results of
their actions. Thus, Ricoeur prefers to call life and action as “in quest of a narrative” (see also Ricoeur, 1991). In criminal justice
decision making, this refers to the background knowledge, culture, and stereotypes that criminal justice actors bring with them
during a decision-making instance. Mimesis2 corresponds to the view that narrative is just a mode of representation of life and action.
Here, narrators configure by emplotting actors and actions into narratives. But this operation could not be done without the pre-
narrative quality of experience. It is from Mimesis1 that the narrator learns “what causes what” in life, which is the basic element of
narrative. Mimesis1 prefigures Mimesis2.
The formed story in Mimesis2 then influences the narrator (and others) as the primary reader of his/her own story in Mimesis3. As
Ricoeur (1992) argues, there are no ethically neutral narratives. And these narratives provide models of actions and identities from
which we based our actions and decisions. Ricoeur argues that not only actions are emplotted in narratives but also our identities.

3
This circle is best seen as a spiral, as Ricoeur (1984:72) notes, not as a vicious one espousing tautology.

3
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

And it is narratives from which we assume our identities as emplotted and we take a stand. As Somers (1994) argues “people act in
particular ways because not to do so would fundamentally violate their sense of being” – their narrative identity. The refigured life/
action will then serve as the new prefigured life/action that then demand storytelling. The whole process represents a hermeneutic
circle that is best seen as a spiral.

2.2. Decision-making as interpretation/argumentation dialectic

It is at this stage that the complex operation of Mimesis2 is magnified. The problem in Mimesis2 is what story to form from among
a set of multiple possible configurations of events that may guide action. To recapitulate, past work in narrative in criminal justice
was preoccupied with narrative coherence (Pennington & Hastie, 1991, 1992; Bennett and Feldman, 1981) and narrative fidelity
(Dworkin, 1986, 1985; 1982), which are actually two forms of coherence. But when two or more narratives are coherent, coherence is
insufficient to inform decision making. Ricoeur's (2000) solution in his philosophical work in The Just is to reconcile two opposing
concepts of interpretation and argumentation.
Note, however, that Ricoeur's dialectic between interpretation and argumentation is just a version of his earlier model on the
dialectic between explanation and understanding (Ricoeur, 1981). In this model, he likened actions to texts, because both they share
similar features, thereby rendering actions amenable to hermeneutics. If we are to understand an action, we form guesses as a mode
of understanding. However, conflict of interpretations may arise. Thus, we must move from guessing to validation, because as Ricoeur
asserted, “it is not true that all interpretations are equal” (p. 175). And this validation process is akin to the juridical procedures,
which is actually characterized by argumentative processes. The interpretation/argumentation dialectic is only an elaborated
transposition of the explanation/understanding dialectic to the legal field.
Ricoeur (2000) argues that decision-making is a process that dialectically uses both interpretation and argumentation. He states
that “argumentation and interpretation are inseparable, the argumentation constituting the logical framework and the interpretation
the inventive framework of the process ending in the making of a decision” (p.153). In interpretation, a decision-maker narratively
configures all “facts” of the case to form a story. Likewise, he/she narratively interprets the “law” whether this “story4” would
resonate with that of the story of the case. Therefore, there is a double act of narrative interpretation – that of a case and of a law.
These two interpretations are then mediated by plot. Emplotment, “as a synthesis of heterogeneous elements” (Ricoeur, 1991: 21),
synthesizes the events or incidents into a story. It is a mediation between “the multiple incidents and unified story” (p.22).
But such interpretations need to stop at some point in order to arrive at a decision. Any narrative configuration of persons, actions,
events, and other information in a given situation is possible (Ricoeur, 1988). To end this indeterminancy, argumentation which
represents a contest of narratives is required. Ricoeur (1991: 30) provides an example in a judge who attempts to configure a
narrative out of “the skein of plots in which the suspect is entangled” (see also Ricoeur, 1984: 74–75). In a trial, the suspect's side and
the opponent's side and all other parties involved may have (conflicting) stories of what “really” happened. This needs the observance
of the rules in argumentation in which the judge must take a stand and configure the “ruling” narrative. This narrative would then
end uncertainty and be the guiding framework of what should be done, as MacIntyre (1981) also argues. With this, narrative
interpretation needs argumentation, while the latter also uses the acts of narrative configurations in argumentation. This mechanism
does not apply only to trials, but also within the individual and in the civil sphere.
The process of rendering a decision is characterized by applying a rule to a case or the subsumption of a case to a rule or principle.
This, as stated above, requires interpretation and argumentation which presuppose each other. In judging, both the rule and the facts
are interpreted until a “fit” is achieved (Ricoeur, 1981). This achievement is an end product of a process of appropriating inter-
pretation and argumentation to a particular case – a process of applying practical wisdom or phronesis (Ricoeur, 1992). In his little
ethics, Ricoeur (1992) argues that human action is always both ethical and deontological. It is aimed at the “good” and is “obligatory”
(p. 169). Here, the first phase of action is its teleological notion. It then passes through the sieve of norms that constrain action. The
third and final phase is the application of practical wisdom which goes back to the ethical aim when conflicts over norms arise.
Practical wisdom is the application of the ethical intention and the norms (rules) to a case. Practical wisdom is always about finding
an appropriate decision to any given situation. And this application is characterized by deliberation as a means of preventing violence
by transforming contending forces into contending arguments.
What govern the entire process of applying practical wisdom are narratives and its important by-product, narrative identity of the
self. As Ricoeur (1992: 279) noted, it is in the narrative configuration of “action and [of] oneself that we pursue the search for
adequation between what seems to us to be the best with regard to our life as a whole and the preferential choices that govern our
practices.” Our interpretations and decisions are governed, not only by our interpretation of actions by our understanding of who we
are. This understanding or narrative identity is part of the whole against which a certain case or situation is being fitted (or rightfully,
interpreted). It should be noted, however, that Ricoeur's concept of narrative identity is unlike MacIntyre's (1981) passive conception
of the term. In Ricoeur's, narrative identity is active; it is the “poetic resolution of the hermeneutic circle” (1988: 248), which is more
of a spiral. And in this endless configuration, narrative identity takes into account not only received culture but contesting ones,
others, and other's narrative identity as, for Ricoeur (1992: 180), the ethical intention is “aiming at the good life with and for others, in
just institutions” (italics in original). Thus, the act of judging using practical wisdom takes into consideration narratives of action and

4
It should be noted that laws are themselves in the form of stories. For instance, Pieniążek (2015: 84) states that the Polish Civil Code's provision,
“Whoever by his fault causes damage to another is obliged to remedy it” is “a narrative – a description that contains an anticipation of ought-
character, aimed at the addressee of the legal norm to take a specific action.” Paskey (2014) provides a theoretical argument for this.

4
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

narrative identities of the decision maker and the “other.”

In Ricoeur's (2000) view, decision making is teleological in nature. Its short term goal is to end the uncertainty in a case, while its
long term goal is social peace. Uncertainty surrounds in a situation when events could not be emplotted in a story. Likewise, a
decision not hinged on a story is full of uncertainty. A story gives confidence to the decision maker, thereby encouraging him to take
the decision in line with the story formed. The determination of the final story of the situation involves argumentation, and argu-
mentation presupposes interpretation of facts into stories.

3. Some clarifications

3.1. A quasi-causal model of action

But what type of explanation does narrative criminal justice propose? Presser (2009:177), in her account of narrative criminology,
treats an offender's story as an “explanatory variable.” However, on its face, this terminology invites a scientific model of social
science approach of interpretation. She has, together with other narrative criminologists, not clarified how a story could do this in a
later work on narrative criminology (Presser and Sandberg, 2015). Thus, one critic asks her and other narrative criminologists: “How
can the causal role of stories be adequately demonstrated? (Birkbeck, 2016: 295). In this subsection, I will clarify the type of
explanation that narrative evokes which is far from what Birkbeck (2016) tends to suggest. I will rehearse Von Wright’s (1971) types
of explanations first.
Von Wright (1971) proposes four types of explanations of action – causal, quasi-teleological, teleological, and quasi-causal. He
argues that the quasi-causal model, which combines causal and teleological explanations, is the type of explanation of human action
in history and social sciences. That is, human action cannot be understood alone by causal connections amenable to empirical
validation, because humans act in view of short as well as long term (teleological) purposes. Quasi-causal model of action has the
following schema (Von Wright, 1971: 96): “A intends to bring about p. A considers that he[/she] cannot bring about p unless he[/she]
does a. Therefore A sets himself[/herself] to do a.”
Notice that this schema demonstrates both causal and teleological explanations. Teleologically, A has an intention, purpose or
motive to do p. Causally, he/she considers that he/she cannot achieve his purpose unless he/she first does a. Thus, he/she must first
do a. What Ricoeur (1984:142) asks, however, is the “guideline” that connects the causal and teleological component of this schema.
He proposed that it is the plot that accomplishes such a task. He defines plot as a “synthesis of the heterogeneous,” by means of which
“goals, causes, and chance are brought together within the temporal unity of a whole and complete action” (p. ix). It is the plot of the
narrative that unifies causal and teleological elements of an action into a whole.
Ricoeur's (1992) formula of action is: describe, narrate, and prescribe. As Simms (2003: 103) puts it in clarifying Ricoeur's
formula: “In order to act, I must first describe the given situation in the world, then I must decide what I should do.” Narrative
mediates description and prescription of action. For example, a criminal justice agent first forms the information he has at hand into a
narrative. Once formed, this story guides what decision that agent ought to take. If the story is one of an apocalypse (see P. Smith,
2005), the antagonist offender is seen as an “evil” other and therefore the protagonist officer must “destroy” such other as what the
apocalyptic story narratively interpellates. This is facilitated by the temporal nature of narratives which has beginnings, middles, and
ends. The “end” serving as the goal unites his actions towards achieving it. A narrative does not only look back to describe actions
“causally’ but also looks forward by prescribing actions “teleologically.”

3.2. Intuitive vs deliberative decision-making

One might argue that the narrative theory based on the work of Ricoeur (2000) is only applicable in decision making situations
where deliberation is feasible (e.g. in courtroom) and not in situations where deliberation is not doable. Kahneman (2011) has the
answer. He views decisions as products of System 1(intuitive thought) and System 2 (deliberative thought) agents of our mental life.
He goes on to say that System 1 is more influential than System 2, but the two also mutually work together. System 1 works
“automatically and quickly,” and thus suffers from errors and biases which characterize most of our choices. System 2 is the opposite
where errors are likely to be avoided through deliberative thought processes.
But System 2, even though unrecognized at times, has influences on System 1. If a System 2 decision making is repeated several
times, we recognize similar events and decide intuitively based on our previous decisions bearing such similarities, foregoing actual
System 2 thinking. We tend to think that it is System 1 that is solely working in such situations, but it is actually System 2 that is the
source of the information used from our memory by System 1. Kahneman (2011:237; see also Kahneman and Klein, 2009) quotes
Herbert Simon (1992: 155) who said that “The situation has provided a cue; this cue has given the expert access to information stored
in memory, and the information provides the answer. Intuition is nothing more and nothing less than recognition.” The experiences of
criminal justice actors that they configure (as System 2 activity) into narratives serve as information for future intuitive decision-
making using System 1. These narratives guide the decision makers in making decisions. It should be noted, however, that stories not
borne from the actual experience of these actors can also be an “ersatz” of experience (Thiele, 2006:245). We can treat such stories as
providing “virtual experience – a source of information for both System 1 and 2 decisions.

4. A research agenda for narrative criminal justice

In this subsection, I suggest some ways forward on how to advance (and reinvigorate) narrative criminal justice further. I present

5
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

these agenda in opposing views or approaches: (1) narrative as record/explanation vs narrative as constitutive of experience, (2) internal
vs external narrative coherence, (3) small vs big stories, (4) story analyst vs storyteller narrative analysis, and (5) narrative interpretation vs
argumentation.
Narrative as record/explanation vs narrative as constitutive of experience. The bulk of research in narrative criminal justice views
narrative as record/explanation as opposed to the constitutive view of narratives.5 For example, the bulk of research on police
storytelling (Van Hulst, 2013) views narrative as record and interpretations. Here, narratives are seen as vehicles where culture and
practices are passed to new police officers or narratives are illustrated as explanations of police behaviors. I suggest for more research
in narrative criminal justice that takes that constitutive view of narratives (Presser, 2009). In police storytelling literature, the
direction seems to be towards this line of inquiry. For example, Kurtz and Upton (2017) studied police war stories and occupying
soldier narrative and found that these stories have far-reaching influence of the officers' perceptions and actions.
By giving attention to the constitutive power of narratives in criminal justice, one would see the power of narratives not just as
“records” but as semiotic resources with material effects (Frank, 2010). This is in line with the proposition of the narrativity of life,
espousing that stories are lived (Carr, 1986; Hardy, 1968; MacIntyre, 1981) not just told (Mink, 1970; White, 1980). However, this
does not mean that one of these should be more prioritized than the other. It should be a two-way affair as Bruner (1987) suggests or
best a hermeneutic circle as espoused by Ricoeur (1984).
Internal vs external narrative coherence. As a line of inquiry in the constitutive view of narrative in criminal justice, future research
can also extend the work of Pennington and Hastie (1991, 1992) on the story model of juror decision making, but also pay equal
attention to external coherence. We can start by testing and extending Dworkin's (1986:229) chain novel thesis. Lindquist and Cross
(2005) is a great exemplar in this respect. They tested the effects of legal precedents, which are themselves stories, on decision-
making. Future research could also look at personal stories of decision makers, not only legal stories. It should be noted that decision-
makers are not only constrained by legal precedents, but by a multiplicity of stories. In the dialogical research tradition (e.g. Frank,
2005; Frank, 2010), one text comprises multiple fragments of previous texts. Thus, Lindquist and Cross found that it is not only
precedent that influences decisions but also other factors including ideology, which I believe would be manifested in personal stories.
Whereas the story model and the chain novel approach focus on legal stories, one can conduct interviews and other methods to collect
personal stories. Although collecting personal stories of some criminal justice decision makers such as court judges is somewhat
difficult, but efforts can be done just like what Jamieson (2013) did on former court judges.
A desirable research project would be to show that narrativity is not single-sourced and that coherence is never a simple fit
between an action and a single narrative. Narrativity is a result of the multiplicity of stories affecting one's life. It could be personal,
everyday stories MacIntyre (1981) emphasized or narratives from the literature Ricoeur (1984, 1992) endorsed. More desirable are
studies that could show how cultural, institutional, organizational, and individual stories are linked (Loseke, 2007) and how each
story possesses polyphonic and heteroglossic properties manifesting its dialogical character (Bakhtin, 1984).
Small vs big stories. In the literature, there is a seemingly divide between small story vs big story research. Big stories are the
traditionally known or canonical personal life stories. Its analysis has perhaps been popularized due to Labov and Waletzky's (1967)
structural model of narrative. Big stories also play prominent role in the theoretical work of Ricoeur (1984) and MacIntyre (1981).
With this, small stories have become underrepresented in research (Georgakopoulou, 2006, 2007). The term small story “covers a
gamut of under-represented narrative activities, such as tellings of ongoing events, future or hypothetical events, shared (known)
events, but also allusions to tellings, deferrals of tellings, and refusals to tell” (Georgakopoulou, 2006: 123). Such stories include
stories to be told, breaking news, projections, and shared stories. Small story research does not, therefore, rely only on interviews but
tap various media of stories in interaction – conversations, email and chat exchanges, and other media.
Thus, future research in narrative criminal justice must provide attention not only to interview data but also to other media of
stories where small stories proliferate. With this, one is not only focusing on the ‘what’ but also on the ‘how’ of storytelling, showing
the performative nature of stories (Gubrium and Holstein, 2009; Riessman, 2008). However, I prefer to agree with Freeman (2006,
2011) that small and big story research can be used mutually in a project. In health research, Sools (2013) illustrates how both big
and small stories could be used in a single project. They could be combined, because they can be considered in a continuum; and
selection criteria exist on when to use either of the approaches as described by Sools.
Story analyst vs storyteller perspective in narrative analysis. Polkinghorne (1995) categorized narrative analysis into two – analysis of
narrative and narrative analysis. Analysis of narrative is the dominant analytical method wherein researchers collect stories and
analyze them to produce themes or taxonomies across stories. On the other hand, narrative analysis is the lesser known and used
method. Here, the analyst does the reverse: he/she collects descriptions of evens and configures them into a story or stories such as
history or biographic episode. “Thus, analysis of narratives moves from stories to common elements, and narrative analysis moves
from elements to stories” (Polkinghorne, 1995: 12).
I prefer to use B. Smith (2016) terminology – story analyst vs storyteller perspectives – to call these categories to avoid confusions
on the term “narrative analysis.” Smith provides a comprehensive list of the types of analysis in these two perspectives. The story
analyst perspective include thematic, rhetorical, structural, interactional (small story), personal, visual, performance, and dialogical
narrative analysis. The storyteller perspective includes creative non-fiction, ethnodrama, ethnotheatre, visual representations, mu-
sical performance, and digital narratives. In narrative criminal justice, the story analyst perspective is the most predominant ana-
lytical method. But I invite researchers to use the storyteller perspective. One can find an inspiration from the work of R. Smith,
Pedersen and Burnett (2014). R. Smith provided an auto-ethnographic account of his previous experiences as police officers. But more

5
See Presser (2009) for an excellent discussion on narrative as record, explanations, and constitutive of experience in criminology.

6
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

formal storyteller perspective type of analyses can be done in the field.

Narrative interpretation vs argumentation. In line with Ricoeur's (2000) view of decision-making as dialectic between narrative
interpretation and argumentation, I suggest that future research could explore some possibilities within this dialectic. One can take a
look at an edited volume, Narration as Argument (Olmos, 2017), for some interesting avenues for research in narrative-argument
dialectic. Perhaps, the work of Bex and Bench-Capon (2017) is a good starting point. They show how decision-makers could use
stories in their arguments to arrive at a decision point. Bex and colleagues have been working on legal argumentation wherein stories
play a crucial role (e.g. BexBench-Capon and Verheij, 2011; Bex and Verheij, 2012).
Bex and colleagues' approach is mathematical modeling. However, narrative researchers could also illustrate hermeneutically
how narratives and arguments mesh as Ricoeur (2000) argues for. In this way, we will not stray away from the teleological nature of
decision making. This is important because Bex and Bench-Capon (2017) tend to migrate more towards the social scientific model of
explanation. For instance, part of their methodology rests on the determination of the intention of the author of the text or the
storyteller. This runs counter to Ricoeur's (1981) hermeneutics which treats texts as well as actions as mute and plurivocal from
which multiple (often conflicting) interpretations arise. Some works in Olmos's (2017) edited volume could be an inspiration for this
type of approach. But future research can also benefit from combining quantitative and qualitative approaches to narrative analysis
(Elliott, 2005).

5. Conclusions

In this paper, I continue the call for more theoretical and methodological plurality in criminal justice research by outlining
narrative criminal justice and suggesting some research agenda to move (reinvigorate) this field forward. Thus, I provide flesh and
bones to Crank and Bowman (2008) and Crank and Proulx (2010) notions of the hermeneutical model of criminal justice which,
based on academic impact,6 has not gained traction in criminal justice research compared to mainstream criminal justice theories. It
is the hope of this paper that the hermeneutical model of criminal justice is advanced by the notions of narrative criminal justice. I
offer some caveats in going forward in this direction.
This work does not mean that social scientific models of criminal justice must be relegated away in favor of the hermeneutic
narrative criminal justice. I agree with Silverman (2015) who argues that quantitative and qualitative approaches are com-
plementary. Such complementarity could be done in multiple projects or in an emerging model of mixed methodology in criminology
(Maruna, 2010). But researchers should bear in mind that although they are complementary, differences exist and should be ac-
knowledged so that one would not be confused with the other (e.g. Birkbeck, 2016). The narrative criminal justice model differs from
the social science models of criminal justice, for example focal concerns theory (Steffensmeier et al., 1998). The difference can be
seen first through Bruner's (1986) categories of thought – paradigmatic and narrative. The paradigmatic-narrative distinction can also
be seen through Von Wright's (1971) causal vs teleological explanations. But still in touch with the complementarity that I am
arguing for, this gap appears to be closer when we adopt Ricoeur (1984) view that narrative explanations have a quasi-causal model
type of explanation that Von Wright also introduced. With this, it is also possible to see decision-making neither as a purely scientific
nor hermeneutic endeavor, but a dialectic between argument and interpretation as Ricoeur (2000) forcefully argues. More empirical
explorations can be done to advance these notions.
This work does not also mean that one can find or should impose a single narrative (or metanarrative) to improve or arrive at
perfect criminal justice decisions. This would entail exclusion of less dominant stories. It is not the intention of this paper that this
should or must be done. A story is Janus-faced. Stories can be good and dangerous at the same time (Frank, 2010; Thiele, 2006). What
is needed is what Frank (1995, 2010) suggests: to think about stories not to think with them. Thinking about stories means thinking
about at least two stories – comparing and contrasting them in terms of their moral and material consequences. It follows, therefore,
that criminal justice decision makers must be exposed to many stories to do this. It follows further that they must be ethically
educated through personal stories and stories in the literature. It entails that such actors must listen not only to culturally and
institutionally dominant narratives but also to less dominant stories of criminal justice clients (e.g. community members, victims,
suspects). It also entails that they should also learn from literature. It is not an accident that Ricoeur (1984, 1992) focuses on stories in
the literature. Such stories are good sources of virtual experiences that improve wisdom or phronetic understanding which are vital to
decision-making (Nussbaum, 1995; Thiele, 2006). Narratives provide a “vast laboratory for thought experiments” which provide
“imaginative variations” of being including decisions, and actions (Ricoeur, 1992: 148). As Kant (1985: 178) observes, “sharpening
judgment is indeed the one great benefit of examples,” which are stories.
Stories, although semiotic in nature, have material effects (Frank, 2010). One of these material effects is a decision. And such
decisions have far-reaching effects not only to the sufferer of the decision but also to the community in general, especially in the
criminal justice system wherein every stage involves a decision/s. Future research can explore further how this semiotic material in
the form of narrative do this and their corresponding effects. It is the hope of this paper that criminal justice scholars will be inspired
to take this worthwhile endeavor of studying and learning from stories.

6
Based on Google Scholar citations, Crank and Bowman (2008) has only 8 citations as of October 2018, while Crank and Proulx (2010) has only
four. It is clear that this perspective lags behind that of the social scientific models of criminal justice, for example the focal concerns theory by
Steffensmeier et al. (1998).

7
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

Acknowledgment

I thank the editorial board and anonymous referees of this journal for helpful comments and suggestions. I received no funding in
writing this paper. Glory be to the God!

References

Albonetti, C.A., 1986. Criminality, prosecutorial screening, and uncertainty: toward a theory of discretionary decision making in felony case processings. Criminology
24 (4), 623–644.
Albonetti, C.A., 1991. An integration of theories to explain judicial discretion. Soc. Probl. 38 (2), 247–266.
Alexy, R., 1989. A Theory of Legal Argumentation. Clarendon Press, Oxford.
Atienza, M., 1989. Las razones del derecho: Teorias de la arumentación juridical. Centro de Estudios Constitucionales, Madrid.
Bakhtin, M., 1984. Problems of Dostoevsky's Poetics. University of Minnesota Press, Minneapolis.
Bennett, W.L., Feldman, M.S., 1981. Reconstructing Reality in the Courtroom: Justice and Judgment in American Culture. Rutgers University Press, New
Brunswick, NJ.
Bex, F., Bench-Capon, T., 2017. Arguing with stories. In: Olmos, P. (Ed.), Narration as Argument. Springer, Cham.
Bex, F.J., Bench-Capon, T., Verheij, B., 2011. What makes a story plausible? The need for precedents. Legal knowledge and information systems. In: JURIX 2011: the
twenty Fourth Annual Conference. Frontiers in Artificial Intelligence and Applications, vol. 235.
Bex, F., Verheij, B., 2012. Solving a murder case by asking critical questions: an approach to fact-finding in terms of argumentation and story schemes. Argumentation
26 (3), 325–353.
Birkbeck, C., 2016. [Review of the book Narrative criminology: Understanding stories of crime, by L. Presser & S. Sandberg]. Cult. Sociol. 10 (2), 294–295.
Bruner, J., 1987. Life as narrative. Soc. Res. 54 (1), 11–32.
Buner, J., 1986. Actual Minds, Possible Worlds. Harvard University Press, Cambridge, MA.
Carr, D., 1986. Time, Narrative and History. Indiana University Press, Bloomington.
Crank, J.P., Bowman, B.A., 2008. What is good criminal justice theory? J. Crim. Justice 36 (6), 563–572.
Crank, J.P., Proulx, B.B., 2010. Toward an interpretive criminal justice. Crit. Criminol. 18 (3), 147–167.
Crow, M.S., Adrion, B., 2011. Focal concerns and police use of force: examining the factors associated with Taser use. Police Q. 14 (4), 366–387.
Dworkin, R., 1982. Law as interpretation. Crit. Inq. 9 (1), 179–200.
Dworkin, R., 1985. A Matter of Principle. Harvard University Press, Cambridge, MA.
Dworkin, R., 1986. Law's Empire. Harvard University Press, Cambridge, MA.
Elliott, J., 2005. Using Narrative in Social Research: Qualitative and Quantitative Approaches. SAGE.
Feldmeyer, B., Ulmer, J.T., 2011. Racial/ethnic threat and federal sentencing. J. Res. Crime Delinq. 48 (2), 238–270.
Fisher, W.R., 1989. Human Communication as Narration: toward a Philosophy of Reason, Value, and Action. University of South Carolina Press, Columbia.
Frank, A.W., 2005. What is dialogical research, and why should we do it? Qual. Health Res. 15 (7), 964–974.
Frank, A.W., 2010. Letting Stories Breathe: A Socio-Narratology. The University of Chicago Press, Chicago.
Frank, A.W., 1995. The Wounded Storyteller: Body, Illness, and Ethics. University of Chicago Press, Chicago.
Freeman, M., 2011. Stories, big and small: toward a synthesis. Theor. Psychol. 21 (1), 114–121.
Freeman, M., 2006. Life “on holiday”?: in defense of big stories. Narrat. Inq. 16 (1), 131–138.
Georgakopoulou, A., 2006. Thinking big with small stories in narrative and identity analysis. Narrat. Inq. 16 (1), 122–130.
Georgakopoulou, A., 2007. Small Stories, Interaction and Identities. John Benjamins, Amsterdam.
Gottschall, J., 2012. The Storytelling Animal: How Stories Make Us Human. Houghton Mifflin Harcourt, New York.
Gottfredson, M.R., Gottfredson, D.M., 1988. Decision Making in Criminal Justice: toward the Rational Exercise of Discretion. Springer Science & Business Media, New
York, NY.
Gubrium, J.F., Holstein, J.A., 2009. Analyzing Narrative Reality. Sage Publications, Thousand Oaks, CA.
Hagan, J., 2015. Why is there so little criminal justice theory? Neglected macro-and micro-level links between organization and power. In: Maguire, E.R., Duffee, D.E.
(Eds.), Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice. Routledge, New York, NY.
Hagan, J., Hewitt, J.D., Alwin, D.F., 1979. Ceremonial justice: crime and punishment in a loosely coupled system. Soc. Forces 58 (2), 506–527.
Hardy, B., 1968. Towards a poetics of fiction: 3) an approach through narrative. Nov. A Forum Fiction 2 (1), 5–14.
Higgins, G.E., Vito, G.F., Grossi, E.L., 2012. The impact of race on the police decision to search during a traffic stop: a focal concerns theory perspective. J. Contemp.
Crim. Justice 28 (2), 166–183.
Huebner, B.M., Bynum, T.S., 2006. An analysis of parole decision making using a sample of sex offenders: a focal concerns perspective. Criminology 44 (4), 961–991.
Jamieson, F., 2013. Narratives of Crime and Punishment. A Study of Scottish Judicial Culture. Unpublished PhD thesis University of Edinburgh Retrieved from.
https://www.era.lib.ed.ac.uk/bitstream/handle/1842/9745/Jamieson2013.pdf?sequence=2&isAllowed=y.
Kahneman, D., 2011. Thinking, Fast and Slow. Farrar, Straus and Giroux, New York, NY.
Kahneman, D., Klein, G., 2009. Conditions for intuitive expertise: a failure to disagree. Am. Psychol. 64 (6), 515.
Kant, I., 1985. Critique of Pure Reason. Macmillan, London.
Kramer, J.H., Ulmer, J.T., 1996. Sentencing disparity and departures from guidelines. Justice Q. 13 (1), 81–106.
Kramer, J.H., Ulmer, J.T., 2002. Downward departures for serious violent offenders: local court “corrections” to Pennsylvania's sentencing guidelines. Criminology 40
(4), 897–932.
Kurtz, D.L., Upton, L., 2017. War stories and occupying soldiers: a narrative approach to understanding police culture and community conflict. Crit. Criminol. 25 (4),
539–558.
Labov, W., Waletzky, J., 1967. Narrative analysis: oral versions of personal experience. In: Helm, J. (Ed.), Essays on the Verbal and Visual Arts. University of
Washington Press, Seattle.
Lindquist, S.A., Cross, F.B., 2005. Empirically testing Dworkin's chain novel theory: studying the path of precedent. NYUL Rev. 80, 1156.
Loseke, D.R., 2007. The study of identity as cultural, institutional, organizational, and personal narratives: theoretical and empirical integrations. Socio. Q. 48 (4),
661–688.
MacIntyre, A., 1981. In: After Virtue: A Study in Moral Theory. University of Notre Dame Press, Notre Dame.
Maguire, E.R., Duffee, D.E. (Eds.), 2015. Criminal Justice Theory: Explaining the Nature and Behavior of Criminal Justice. Routledge, New York, NY.
Maruna, S., 2010. Mixed methods research in criminology: why not go both ways? In: Piquero, A.R., Weisburd, D. (Eds.), Handbook of Quantitative Criminology.
Springer, NewYork.
Meretoja, H., 2014. The Narrative Turn in Fiction and Theory: the Crisis and Return of Storytelling from Robbe-Grillet to Tournier. Palgrave Macmillan, Basingstoke,
England.
Mink, L.O., 1970. History and fiction as modes of comprehension. New Lit. Hist. 1 (3), 541–558.
Nussbaum, M.C., 1995. Poetic Justice: the Literary Imagination and Public Life. Beacon Press, Boston, MA.
Olmos, P., 2017. Narration as Argument. Springer, Cham.
Paskey, S., 2014. The law is made of stories: erasing the false dichotomy between stories and legal rules. Leg. Commun. Rhetor. JALWD 11, 51–82.
Pennington, N., Hastie, R., 1991. A cognitive theory of juror decision making: the Story Model. Cardozo Law Rev. 13, 5001–5039.

8
D.J.S. Barrera International Journal of Law, Crime and Justice xxx (xxxx) xxx–xxx

Pennington, N., Hastie, R., 1992. Explaining the evidence: tests of the Story Model for juror decision making. J. Personal. Soc. Psychol. 62 (2), 189–206.
Pieniążek, M., 2015. On possible applications of Paul Ricoeur's thought in legal theory. Archiwum Filozofii Prawa i Filozofii Społecznej 10 (1), 79–88.
Polkinghorne, D.E., 1995. Narrative configuration in qualitative analysis. Int. J. Qual. Stud. Educ. 8 (1), 5–23.
Presser, L., 2009. The narratives of offenders. Theor. Criminol. 13 (2), 177–200.
Presser, L., Sandberg, S. (Eds.), 2015. Narrative Criminology: Understanding Stories of Crime. NYU Press, New York.
Ricoeur, P., 1981. The model of the text: meaningful action considered as text. In: Riceour, P. (Ed.), Hermeneutics and the Human Sciences: Essays on Language, Action
and Interpretation. Cambridge University Press, Cambridge, UK.
Ricoeur, P., 1984. Time and Narrative, vol. 1 University of Chicago Press, Chicago, IL.
Ricoeur, P., 1988. Time and Narrative, vol. 3 University of Chicago Press, Chicago, IL.
Ricoeur, P., 1991. Life in quest of narrative. In: Wood, D. (Ed.), On Paul Ricoeur: Narrative and Interpretation. Routledge, London.
Ricoeur, P., 1992. Oneself as Another. University of Chicago Press, Chicago, IL.
Ricoeur, P., 2000. The Just. University of Chicago Press, Chicago, IL.
Riessman, C.K., 2008. Narrative Methods for the Human Sciences. Sage, New York.
Silverman, D., 2015. Interpreting Qualitative Data. Sage, London.
Simms, K., 2003. Paul Ricoeur. Routledge, London.
Simon, H.A., 1955. A behavioral model of rational choice. Q. J. Econ. 69 (1), 99–118.
Simon, H.A., 1997. Models of Bounded Rationality: Empirically Grounded Economic Reason, vol. 3 MIT press, Cambridge, MA.
Simon, H.A., 1992. What is an “explanation” of behavior? Psychol. Sci. 3 (3), 150–161.
Shermer, L.O.N., Johnson, B.D., 2010. Criminal prosecutions: examining prosecutorial discretion and charge reductions in US federal district courts. Justice Q. 27 (3),
394–430.
Steffensmeier, D., Ulmer, J., Kramer, J., 1998. The interaction of race, gender, and age in criminal sentencing: the punishment cost of being young, black, and male.
Criminology 36 (4), 763–798.
Smith, B., 2016. Narrative analysis. In: Lyons, E., Coyle, A. (Eds.), Analysing Qualitative Data in Psychology. Sage, London.
Smith, P., 2005. Why War? the Cultural Logic of Iraq, the Gulf War, and Suez. The University of Chicago Press, Chicago.
Smith, R., Pedersen, S., Burnett, S., 2014. Towards an organizational folklore of policing: the storied nature of policing and the police use of storytelling. Folklore 125
(2), 218–237.
Somers, M.R., 1994. The narrative constitution of identity: A relational and network approach. Theory Soc. 23 (5), 605–649.
Sools, A., 2013. Narrative health research: Exploring big and small stories as analytical tools, Health Interdiscip. J. Soc. Study Health Illness Med. 17 (1), 93–110.
Tversky, A., Kahneman, D., 1974. Judgment under uncertainty: heuristics and biases. Science 185 (4157), 1124–1131.
Ugelvik, T., 2016. Techniques of legitimation: the narrative construction of legitimacy among immigration detention officers. Crime Media Cult. 12 (2), 215–232.
Ulmer, J.T., 2014. Mismatch of guidelines and offender danger and blameworthiness departures as policy signals from the courts. Criminol. Public Policy 13 (2),
271–280.
Ulmer, J.T., Kurlychek, M.C., Kramer, J.H., 2007. Prosecutorial discretion and the imposition of mandatory minimum sentences. J. Res. Crime Delinq. 44 (4), 427–458.
Van Hulst, M., 2013. Storytelling at the police station: the canteen culture revisited. Br. J. Criminol. 53 (4), 624–642.
Von Wright, G.H., 1971. Explanation and understanding. Routledge and Kegan Paul, London.
Walker, M.J., 2012. Neuroscience, self-understanding, and narrative truth. AJOB Neurosci. 3 (4), 63–74.
White, H., 1980. The value of narrativity in the representation of reality. Crit. Inq. 7 (1), 5–27.
Zilber, T.B., 2018. Stories as social action: rethinking narrative studies of organizing. In: Mir, R., Jain, S. (Eds.), The Routledge Companion to Qualitative Research in
Organization Studies. Routledge, New York, NY.