Political Process and Crime

Law enforcement and administration are connected with politics on a number of levels. Dominant political theory and ideology affect the structure, organization, and expectations of a society's criminal justice institutions. In turn, these institutions affect the ways in which the criminal law is enforced and administered.

Political culture, theory, and ideology. Although the connection between political theory and ideology and concrete practice is neither direct nor always clear, the links are there, and to understand practices and institutional arrangements, one must appreciate the theoretical and ideological milieu that justifies and legitimizes them. Theories of authority and the nature and function of the state vary widely, and it is such factors that in part account for variations in concrete institutional practices in the criminal process. In this sense, social and political theory are at the root of the criminal process.

To illustrate, a major tradition in continental political theory and legal philosophy has emphasized the autonomous nature of the state and justified strong central authority (Hegel). This tradition stands in sharp contrast to the liberal democratic tradition of Great Britain and the United States, which has been intensely skeptical of authority, has celebrated pluralism, and has advocated the decentralization and fragmentation of power (Locke; Hartz). These differing traditions have influenced both the structure of and expectations about governmental institutions, including the criminal process (Tocqueville). The influences of American political thought on the criminal process are exemplified by the importance given to the rights of the criminally accused in the Bill of Rights, and by the tradition of local, decentralized administration of justice. The connections among ideology, political culture, and the criminal process in nonwestern and socialist countries are even more striking (Bayley; Li).

There are numerous other contrasts between Anglo-American and continental criminal justice that are related to the differing political traditions. A public criminal law as distinct from private tort law, public prosecutors in contrast to private prosecution by the victim, a national police force, and a comprehensive national judicial system—all signs of highly developed central authority—emerged much earlier and have evolved more fully on the Continent than in England and the United States. The American political tradition, in particular, has been intensely skeptical of central authority and strong positive government, and has resisted the penetration of remote political authority by means of the criminal law into the daily affairs of citizens. This has led to local control and local administration of criminal justice to a degree unheard of in Europe. In the United States, most major officials in the criminal justice system—judges, prosecutors, sheriffs, court clerks, and in a few jurisdictions, public defenders as well—are elected locally, a practice that is regarded by many continental observers as inconsistent with the ideals of evenhanded administration. Indeed, in the United States both the financing and the administration of criminal justice firmly remain a function of local (as opposed to even state) government. As a consequence, American criminal justice officials are expected not only to administer the law evenhandedly, but also to be responsive to their local publics, tasks that often foster irreconcilable tensions.

Contrasting continental with American views on plea-bargaining illustrates the importance of different traditions of theory and ideology in understanding the operations of the criminal justice system. In West Germany, for example, plea-bargaining is viewed with disdain as a practice that is only slightly short of corruption and one that would undermine the very authority and integrity of the state. In contrast, even though there is considerable debate over plea-bargaining, the practice is generally accepted in the United States as a valuable, if problematic, tool for flexible and efficient administration of justice. This and other practices, such as rules of evidence and the right to silence, must be understood in light of different traditions in political thought about the nature and authority of the state.

The administration of criminal justice. Because of its local orientation and the weakness of state and national governments, the administration of criminal justice in the United States has long reflected local political culture. Indeed, in America the history of the administration of criminal justice is primarily an aspect of the history of local governments. This history reveals how the styles, aims, and practices of the police and courts have varied according to local political influences. In the urban centers of the nineteenth and early twentieth centuries, such influence was direct and immediate. Those engaged in gambling, prostitution, loan-sharking, extortion, and the like often developed close ties with police and other public officials in order to ensure against investigation and arrest. Laws were also used selectively to control newly arrived immigrants, mediate tensions between contentious community groups, combat efforts to organize labor, and protect persons and property (Walker).

The distinguishing features of accounts of law enforcement officials in the nineteenth and early twentieth centuries are the unbridled use of discretion and the frequency of appeals to particularistic (as opposed to universalistic) values. Bribery, appeals to friendship, family and political influences, racism, and prejudice of all kinds served to lighten official responses to crime in some cases and to heighten them in others. Some accounts detail the routine and perfunctory nature of arrest and proceedings against the riffraff of the "criminal classes" (Friedman and Percival).

But even with the decline of widespread corruption and the rise of a full-time professional criminal justice system in the mid-twentieth century, local political culture continues to shape policies of law enforcement and administration. Although there is now little direct political influence on the day-to-day activities of the police and courts in most American cities, the type of political culture dominant in a community still significantly affects what types of police officials are recruited and what policies they pursue. In one community, police might routinely arrest everyone for whom there is probable cause, whereas in another they may negotiate among disputants, overlook some offenses, and the like. Such differences are systematically related to differences in political cultures (Wilson). Similar patterns are found in courthouses. Courts in reformed "good government" communities are less likely to embrace plea-bargaining and are more inclined to hand down harsher sentences than are courts in communities where traditional political machines prevail. As with the police, this is because officials with different backgrounds and experiences are recruited in the various types of communities (Levin; Feeley). For example, the styles, policies, and practices of police, prosecutors, and courts in the older, ethnically mixed industrial cities with traditions of well-organized local party organizations are quite different from those in the newer cities of the West, which have neither the ethnic mix nor the tradition of tight-knit party organizations.

It is a general proposition that policies of public-service institutions are formed and significantly shaped by those at the lowest level of administration. This proposition applies to the administration of criminal justice. The criminal process is an overdetermined system—there are more rules to enforce than resources for enforcement, the same conduct can be variously defined, even the most carefully drawn rules permit considerable leeway of interpretation, decisionmaking takes place in settings of low visibility, officials are charged with contradictory tasks, and there are few organizational devices for overseeing and supervising subordinates. As a consequence, law enforcement and administration are selective and discretionary. One result is that actual policy, the law-in-action, is shaped to a considerable extent by the adaptation of formal rules to individual values and by the organizational exigencies of those who are charged with enforcement and administration. Such factors go a long way toward accounting for the patrol, investigation, and arrest practices of police (Wilson; Skolnick), decisions by courts (Feeley; Vera Institute), and policies of prison administrators (Sykes).

This inevitability of discretion fuels the politics of the administration of justice. In their broadest form, these politics require selecting from a number of competing and antagonistic values emphasized by various agents of law enforcement and administration. One writer has constructed ideal types of clusters of values that compete for attention: the "crime-control model" emphasizes maximization of public safety through swift and efficient proceedings and reliance on expertise; whereas the "due process model" emphasizes the protection of individual rights, is skeptical of fact-finding by public officials, and requires careful, contested proceedings at each stage of the criminal process. Debate over these values, reinforced as it is with community expectations, limited resources, and the semiautonomous and antagonistic nature of various criminal agencies, constitutes the politics of the administration of criminal justice (Packer).