Democracy, Bureaucracy, and Criminal Justice Reform

American criminal justice systems blend elected or politically appointed leaders with career civil servants. This organizational hybrid creates challenges at the intersection of democratic accountability and enforcement discretion. In moments of stasis in the politics of criminal justice, those challenges are largely invisible: the public, elected officials, and civil servants generally share a unity of interest, borne of like-minded policy commitments that have developed over time. But in moments of political transition—that is, when public preferences on criminal justice policy are in flux—the relationship between bureaucracy and democracy can be fraught. Public demand for change may or may not accord with the commitments, ideals, and culture of the bureaucracy’s front-line actors. Elected leaders are voted in with high expectations for transformative change, but may be stymied by institutional resistance to it. The bureaucracy, in turn, may seek to alter the political narrative that is fueling the political transition, further complicating the democratic process. And in a system in which criminal lawmaking and enforcement power is spread across three different levels of government—local, state, and federal—with overlapping authority yet different constituencies, the complexity of interplay between “public” and bureaucracy deepens. Across America, a growing number of jurisdictions are entering moments of political transition in criminal justice. This Article explores the political and institutional arrangements that alternatively impede, permit, or even accelerate a resulting change in criminal enforcement on the ground. Drawing on the democracy/bureaucracy framework developed in the fields of political theory and public administration, the Article considers how these fields and others can enrich our understanding of current political and institutional dynamics in American criminal justice. The Article then reflects on these dynamics’ implications for democratic responsiveness and systemic legitimacy, arguing, counterintuitively, that the very features of the democracy/bureaucracy relationship capable of slowing democratically sanctioned change in criminal enforcement can also end up hastening political shifts; and that, properly leveraged, the criminal enforcement bureaucracy can help realize deliberative and participatory democratic ideals

Prosecution in Public, Prosecution in Private

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power—and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges. This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs undernoticed. The public-private boundary has served to skew enforcers’ incentives, impoverish insight into enforcement patterns and their causes, weaken traditional channels of accountability (judicial, electoral, and internal), and erode public trust. The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes. More fundamentally, the Article is a call to center the public-private boundary in accounts of power in the criminal process

Beyond Law and Fact: Jury Evaluation of Law Enforcement

Criminal trials today are as much about the adequacy and legitimacy of the defendant’s accusers—police and prosecutors—as the alleged deeds of the accused. Yet we lack theory to conceptualize this reality, doctrine to set its parameters, and institutional mechanisms to adapt to it. The traditional framework used by courts and scholars to delineate the jury’s role—along the continuum between “fact-finding” and “law-finding”—is inadequate to the task. Jury evaluations of law enforcement are more accurately conceptualized as enforcement-finding, a process that functions both in and outside that continuum. In considering enforcement-finding’s justification and proper scope, history offers a useful analytical frame. Over time, the criminal jury’s role has evolved within the surrounding criminal enforcement environment. Jury evaluation of law enforcement is an adaptation in that process; it arose, and persists, because the system needs it. This insight should inform our approach. Rather than resisting enforcement-finding, or mistaking it for something else, we should instead accept, accommodate, and even leverage it. Institutional design should balance potential hazards against systemic benefits. And doctrine should enable courts to openly and transparently balance the need for jury evaluation of law enforcement against potentially competing adjudicative values

Prosecution in Public, Prosecution in Private

Criminal procedure has long set a boundary between public and private in criminal enforcement: generally speaking, enforcement decisions at the post-charging stage are exposed to some degree of public view, while those at the pre-charging stage remain almost entirely secret. The allocation of public and private is, at heart, an allocation of power—and the current allocation is a relic. When private prosecutors were the mainstay of criminal enforcement, public court processes effectively constrained them. But those processes do little to constrain the spaces where enforcement power today resides: in decisions by the servants of a state-run, professionalized enforcement apparatus on whether to investigate, to charge, or to decline charges. This Article challenges criminal procedure’s centuries-old boundary between public and private in criminal enforcement. It argues that the justifications for the boundary are outdated and overstated, and the costs undernoticed. The public-private boundary has served to skew enforcers’ incentives, impoverish insight into enforcement patterns and their causes, weaken traditional channels of accountability (judicial, electoral, and internal), and erode public trust. The Article reimagines a new boundary for our time, one that strengthens secrecy in some respects while relaxing it in others, and enables robust oversight of necessarily secret processes. More fundamentally, the Article is a call to center the public-private boundary in accounts of power in the criminal process