Transforming the Regimentation of Criminal Justice With Volitional Citizenship

The late William Stuntz addressed a wide range of issues in The Collapse of American Criminal Justice and he indicated what he thought could be directions of salutary change. Much needs to be done, from addressing the scale and practices of plea- bargaining to revising sentencing and police practices, looking closely at the ways in which elements of the criminal justice system are funded, and considering how to moderate the role of politics at several levels. In some respects his suggestions involve returning to aspects of American political culture with which earlier generations were more or less ‘at home’. Thus, the interest of his analysis rests, in part, on how the way forward, in his view, is not entirely a matter of exploring new frontiers of legal and judicial culture but retrieving, in ways suitable to contemporary circumstances some perspectives, habits, and practices that have significant antecedents in American democratic politics and civic life. The present essay will focus on some issues of political culture and their relevance to Stuntz’s view.

In contemporary American political culture there is increasing (if not always articulate) acknowledgment of the tensions that can arise between democratic process and the liberal order. Whether this will become a matter of coherent, constructive debate remains to be seen. If that does not happen, the ways in which issues concerning criminal justice, among other important matters, will be addressed will remain very susceptible to the not always measured sensibilities of highly symbolic politics. Criminal justice issues will continue to be used by politicians rather than be addressed by them. The late William Stuntz’s criminal law scholarship is correct, I think, to emphasize the importance of increasing democratic involvement in criminal justice, whether or not we are persuaded by his views about the roles of neighborhoods and his critique of current arrangements concerning the burden of cost and how officials obtain their positions. Those specific matters are indeed important but the present discussion focuses on some aspects of what we might call the ‘political psychology’ of the issues. Those aspects are important both explanatorily and in regard to the justifications of possible revisions of current policy and practice.

Considerations of political psychology concern persons’ attitudes, responses, patterns of motivation, and their politically relevant values. For example, I think it is plausible to say that the political psychology of contemporary America in respect of many citizens’ attitudes toward, and expectations of, government are quite different from the political psychology of Americans in 1920. To be sure, at any given time political psychology is very likely to be mixed and in flux; I do not want to suggest that for any age or period, it is possible to identify some well-defined, dominant or prevailing political psychology, clearly shared by the vast majority of citizens. Sometimes that is the case; sometimes it is not. And in any event, much depends upon the level of description. (Compare what might be said about the political psychology of ‘post-industrial Western democracies’ concerning the market and what might be said about the political psychology of the Netherlands and of Greece on that topic. The level of description can matter quite a lot.) Nonetheless, there is little doubt that a much larger proportion of Americans now expect government (at several levels) to provide benefits and services and to be engaged in a much more active and regular way in far more aspects of economic life.

There is a widely held view that a primary responsibility of government is to dispense benefits and provide services. A culture of entitlement has become entrenched and often, political campaigns are largely contests regarding the scale of benefits that each party will guarantee, along with dire warnings of the havoc to be wrought by the other party—either by impoverishing us through bloated, costly promises or rendering our lives precarious by curbing entitlements.

One respect in which that is troubling—even apart from the question of the economic consequences—is that it reflects a decline in what we might call ‘the presumption of accountability.’ Many people seem quite comfortable harboring the expectation that of course the state has the responsibility to provide all sorts of services and benefits, and it is inappropriate to expect or require that individuals should make provision for themselves and for their futures. Prudence in that respect is widely regarded as discretionary, with the state assuming much of the responsibility for what, in an earlier age, was unavoidably one’s own responsibility, assisted by various institutions of civil society assisting to the extent they could help.  There is a widely held view that government should not only assist those who are incapable of providing for themselves but that it should guarantee various types of goods and services for everyone, because that is what a responsible government does.

The deterioration of the presumption of accountability concerns more than economic matters. Understood more broadly it also has implications for criminal justice. William Stuntz argued that the way in which crime has been made a political issue, the ways in which policing has been bureaucratized, and the rigidity of much of criminal law have created a situation in which criminal justice has become a matter for industrial-style administration rather than a concern for participating citizens. Less and less of the process of criminal justice has any direct role for citizens in such a way that they have a role directly and accountably in preserving the rule of law and participating in legal proceedings concerning crime. The fact that there are neighborhood watch groups and other sorts of associations and activities preserving order and improving the quality of life should not be overlooked. In some areas ravaged by drugs, crime, and violence citizens have made heroic efforts to restore safety and civility in something analogous to large-scale voluntary disaster relief activities. However, given the scale of the problems being addressed, these efforts are hardly adequate and are not indicative of a significant, effective trend toward the democratization of criminal justice. These are popular undertakings but not quite democratic in the sense that concerns involvement in criminal justice proceedings.

In a liberal polity it is crucial that the law should be widely endorsed. It is important that citizens should regard the law—allowing for some measure of disagreement and for the inevitability of disputed issues concerning criminalization—as reflecting a widely shared conception of what is acceptable and what is intolerably wrong. The ‘industrial’ character of a great deal of criminal justice distances citizens from meaningful engagement. For many, crime and the administration of criminal justice have become something akin to environmental degradation along with a regulatory-administrative approach to cleaning up. The criminal justice system—the police, prosecutors, judges, parole boards, probation officers, and so forth—are the experts whose job it is to ‘manage’ crime and provide criminal justice. That is their profession. Others of us attend to our own affairs.

The combination of that type of compartmentalization of responsibility along with a generally weakened presumption of accountability is a serious obstacle to the democratization of criminal justice for which Stuntz argued. If many people do not think of themselves as having a primary, standing responsibility to exercise prudence across the broad range of aspects of their lives it is not very likely that exhortation to regard the rule of law, criminal justice, and the relation between them as a highly important, non-discretionary sphere of concern for a citizen, will resonate powerfully and effectively.

In highlighting some of the less salutary features of contemporary criminal justice in America, Stuntz argued that plea-bargaining has “become the system’s primary means of judging criminal defendants’ guilt or innocence.” [302] The rigidity of criminal codes has squeezed out space for discretion and the role of juries. He thought that much could be gained by “[r]eintroducing a measure of vagueness to American criminal law would trigger more jury trials…”. [303] This is because “[v]aguely defined crimes…are democracy’s friend.” [303] Recreating “the right kinds of democracy” [312] will produce a system both “more effective and much more humane.” [311]

One way to express what is common to the ways the “right kinds of democracy” make a difference to criminal justice is that they all involve roles for judgment. This is a different kind of judgment than that exercised in the ballot. The ballot is indeed one of the chief forms of democratic participation and accountability. It is a way of taking responsibility for the government (by voting for those one thinks should be governing) and often it is also a way of holding those in government accountable through also having the means to remove them from office, even if that should require some patience or the complexities of a recall vote. In addition, there are non-ballot opportunities for judgment. For example, in the context of criminal justice there are roles for deliberative judgment, the weighing of considerations, and the need to articulate reasons and reasoning, and not just express preferences, which is something to which the ballot can be reduced if voters give little thought to their votes or if their votes are bought (literally or figuratively).

Currently, deliberative weighing and judging, in light of a guiding conception of reasonableness, is perhaps not the most visible and pronounced feature of criminal justice. Often, the aspects and episodes of criminal justice that enter popular consciousness and attract the greatest attention are forensic soap operas involving celebrities or people who become celebrities by virtue of being on trial (even if just sitting silently and never taking the stand). Jurors themselves sometimes become celebrities given the enormous appetite for ‘human interest’ stories about the dramatis personae. With respect to criminal justice, as in other contexts, there seems to be erosion of occasions for democratic participation in ways that make demands upon faculties of judgment, discretion, attention, and deliberation.

When the vast majority of cases are handled by plea-bargaining the role for judgment on the part of citizens, and the scope for their participation in ways that involve a genuine burden of accountability are substantially reduced. As criminal justice processes become increasingly professionalized and bureaucratized there are fewer occasions and contexts in which citizens interact with each other as agents and in which deliberative habits and habits of careful, discriminating judgment are appropriate, and in fact, necessary, to do well what needs to be done.

There are important relations of mutual reinforcement between the liberal political order (including the rule of law in such an order) and civil society. That fact could be helpful to crucial issues concerning criminal justice. The liberal order provides and preserves conditions in which diverse, dynamic, pluralistic civil society is possible. That is important not only because it means that there is broad scope for people to exercise voluntariness and self-determination but also because there are then a great many occasions and contexts in which people interact with, and acknowledge each other, as accountable agents. This does not mean that of course there will be mutual respect, a steady desire to cooperate, and that diverse individuals and groups will appreciate and admire each other. Relations and attitudes will be much more mixed than that. Nonetheless, civil society in a liberal polity multiplies opportunities for persons to acknowledge each other’s agency.

Civil society under a liberal rule of law can encourage habits of reasonableness, negotiated accommodation, and cooperative compromise instead of ideological and factional brittleness. There is nothing inevitable about this; habits of reasonableness can be fragile. Still, it is difficult to see how such habits could be acquired and encouraged in a socio-political setting other than civil society under a liberal rule of law. A religiously and ethnically homogeneous national community might sustain habits of reasonableness and compromise in large part because of its homogeneity and the resolve to preserve it. An increase in heterogeneity would test its liberal character; if diversity leads to a loss of civility then perhaps the society’s virtues were not as genuine as they appeared. The virtues of civility are most robust and authentic when they arise in, and are tried by, a social world in which different ways of life, diverse perspectives and interests, and value pluralism are present. Such conditions require individuals and groups to fashion a political arrangement that they can all recognize as in their interest in the same basic way because it preserves a framework within which their different ends and interests can be pursued. It means that there is a politically significant commitment they share despite their other differences.

Participation in civil society under a liberal rule of law can help facilitate prudence and habits of accountability. That is a key difference between (a) judgment-involving citizen participation and (b) satisfaction of conditions of class-membership for purposes of policy.  The latter, typically the basis for entitlement, tends to be passive. There may be various things one must do or one must have attempted in order to meet certain criteria but there is still a significant difference between exercising judgment as an agent on the one hand, and meeting conditions for an entitlement or for provision of some service on the other.

One of the main gains from a restoration of democracy in criminal justice would be a heightened sense of citizen-accountability, as people appreciate that their involvement in criminal justice is substantive in ways that can really matter. They would see themselves as having a deliberative role implying significant responsibility. However, some heavy lifting is needed in order to facilitate that restoration. Its achievement will depend upon changing attitudes and, in a broad sense, values. It would require changes in political culture, not just changes in policy. At a fundamental level what will be just as important as policy is articulate advocacy in a way that reaches people so that they understand that they are better served by being accountable than by not being asked to fulfill the relevant responsibilities. What is needed is a transition from thinking that it is always better to enjoy entitlements that diminish accountability to thinking that it is a genuine, important good to have responsibilities and to meet real tests of prudence. The hardest work will be in reversing the momentum of competitive-entitlement as the prevailing strategy of political ‘leadership.’

A great many people regard citizen-participation as a ‘tax’ rather than an opportunity for deliberative agency. They have become accustomed to governance as management, and in large part, as administration of entitlements. Changes in policy and practice on the one hand, and changes in political culture on the other, are interrelated. Neither can be brought about entirely on its own. In addition, changes in a salutary direction would almost surely be supported by a reduction in the sheer volume of criminal cases—a matter to be addressed, in large part, by revising what is criminalized. For instance, revision of drug laws would require that society rethink the issue in ways that are unavoidably connected with other matters, such as education, jobs, urban and rural redevelopment, and so forth. My point is not that of course this is a task for massive federal initiatives, requiring mammoth amounts of money, bureaucracy, and oversight. That may be the least imaginative, least constructive approach. In a sense, a large-scale initiative of government—the ‘war on drugs’—has already aggravated and deepened the problems on an enormous scale. Something besides a ‘war on’ strategy is needed, and for the ‘something’ to make a genuine, constructive difference it will be important to restore accountability as well as democracy. Democracy without accountability is not likely to be very cautious in guarding against diminution of liberty.

With respect to criminal justice overall, much could be gained by engagement of citizens in more deliberative, accountable ways. Stuntz is almost certainly correct in that regard. However, it is important to not rush from data to policy—to not rush from observing the scale and seriousness of the problems concerning criminal justice to implementing more citizen-involving practices. That will not achieve the desired results, and could be powerfully demoralizing if success is not evident. Cities and communities ravaged by crime and violence will not easily make a transition to neighborhood democracy in the ways desired. Changes in habits and attitudes are crucial to achieving the desired changes in practice and institutions. Many neighborhoods severely damaged by the ‘war on drugs’ are so debilitated and demoralized that more than increased opportunities for democratic engagement appears to be needed. (I am not competent to judge what specific steps would be most effective.)

In some respects this is a pessimistic follow-up to Stuntz’s analysis. If he is correct, at least in the respect that more participatory democracy will be crucial to reconstructing criminal justice in the United States, the task will require much more than changes in the laws, changes in sentencing practice, and changes in criminal procedure. The relevant sort of democratic participation will depend upon people becoming more willing to think of citizenship overall as involving accountability, which in some contexts—such as criminal justice— requires care in making carefully weighed judgments on matters of real significance. Politics in recent decades has ‘educated’ people out of thinking in terms of accountability and engagement in ways that require careful deliberation.

It is very difficult to know where to start, how to trigger interest and willingness to acquire and exercise prudence (and to find it gratifying to do so). So much in the political culture encourages entitlement rather than judgment, and focuses on provision of satisfactions rather than opportunities for deliberative decision. There is a widespread deficit of accountability in that sense. In so many contexts it has been displaced by a narrower notion of liability. However, the respects in which criminal justice is broken, unsatisfactory, and a cause of needless damage are so evident and so expensive, that the issue of cost may provide the opening that will make some real leverage possible. It is not difficult to see that what is needed is not simply a less expensive version of what we presently have.

However, it is also not difficult to see that the sort of willingness to be accountable in the relevant ways in regard to criminal justice is not something likely to be successfully encouraged in a stand-alone way. It may be that what is most needed is the political courage to make the case for a steady, sustained reorientation toward modes of democratic participation that make demands on capacities for deliberation and judgment. That would involve a mode of politics different from a contest of competitive entitlement. It would involve dismantling some of the institutions and policies that shrink the scope for accountability and prudence, crowding out self-determination by a burden of benefits.

This does not mean that somehow everything must be done at the same time; that a thorough remaking of American politics is necessary for constructive developments concerning criminal justice. But it does mean that the issues causing crisis in criminal justice are not limited to that sphere alone. Adjustments in and to the criminal justice system should not be expected to address larger social issues in a satisfactory manner. In any case, it would be a mistake to burden criminal justice in that way, adding purposes and aims that may be more appropriate concerns of other dimensions of justice. Nevertheless, effective, constructive changes in the context of criminal justice almost certainly require the encouragement of new habits and attitudes concerning the relation between civil society and the liberal political order more broadly, centrally including the understanding of role of rights and responsibilities. A restoration of the appreciation of accountability, and its unavoidability in a genuinely liberal polity, serious about people’s rights, is among the most important matters needing reconsideration. Whether that task is politically achievable is likely to depend upon whether it is misrepresented as cheating people out of ‘rightful’ entitlements. The willingness to discuss politics in a different idiom is perhaps what is needed most.

Reader Discussion

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on August 28, 2012 at 11:35:57 am

Early on in his book Stuntz identifies the key flaw in the Constitution of 1789 and the Bill of Rights of 1790. Simply stated, the federal constitution lacks any operative language that creats substantive limits on the scope of federal jurisdiction onver individual activities. This problem was glossed over for the first 150 years of the Republic because the federal government never attempted to exert jurisdiction over any individual that was not very clearly associated with an enumerated power.

Since the only limitations on the augmented federal power the Supreme Court has vested in the federal government since the Civil War is "procedural" rather than "substantive" then problems Stuntz identifies and, we all feel, simply cannot be remedied. Already, the federal congress is the least democratic and least representative of any government that likes to call itself a representave constitutional democracy.

Treating the symptom of a criminal justice system run amok with more jury trials and procedural limits on plea bargains simply won't work. The disease of a federal government without any substantive constitutional limitations means that sooner or later the US will degenerate into a totalitarian regime. A Stuntz points out, already the US prison system can only be compared to Stalin's gulags.

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John Aronson
on February 05, 2015 at 00:35:01 am

[…] and the Liberal Polity. This essay was originally published in July 2012 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that […]

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Image of “Transforming the Regimentation of Criminal Justice with Volitional Citizenship,” By Jonathan Jacobs | Nomocracy In Politics
“Transforming the Regimentation of Criminal Justice with Volitional Citizenship,” By Jonathan Jacobs | Nomocracy In Politics

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.