Introduction
There is a robust debate between democratization versus bureaucratic professionalization models of the criminal justice system. Joshua Kleinfeld’s article, ‘Manifesto of democratic criminal justice,’ presents the challenges of administration in democratic and bureaucratic professionalism settings. The line-level enforcement discretion compromises the bureaucratic-professional criminal justice system, which is charged with restoring peace and order in the democratic society. The people collaboratively cede the administrative roles to the respective leaders during polls.
Professionals and red tape dominate the criminal justice system. Ouziel submits that whereas a culture of adherence to rules and regulations is the very essence of the social contract between the society and criminal justice department in quelling chaos in society, the bureaucratic professionalism is exaggerated and used against the common person who is often considered lay.[1] The use of polls to elect leaders encourages democracy. For this reason, democracy is often considered better than bureaucratic professionalism in the criminal justice system. The criminal justice system should be democratized.
The Challenges Presented In Kleinfeld Thesis on models of the criminal justice system
There are challenges to the democratization of the criminal justice system as one of models of the criminal justice system. The Kleinfeld’s thesis argues that there is a need to defend the democratization of the criminal justice system. The challenge that is manifest regarding Kleinfeld’s thesis is that the vast majority of Americans who are not informed on matters law are easily swayed by innuendos, which do not form the crux of the criminal justice reform agenda. Kleinfeld claims that the power of the majority has been misused to achieve political ends, which are detrimental to the lives of the very majority, who have the power of the vote.[2]
In this case, it is difficult to assume that the majority upon which the democratic process of voting is based is always rightly informed. Furthermore, there is often a huge difference between rational individual views pertaining to the operationalization of the criminal justice and the manner in which that very individual will vote on the same issue. The influence of the herd mentality is overwhelming in the democratization of the criminal justice system. Special interest groups often influence the public.
Special interest groups often use innuendos and euphoria to dupe the public into voting for such interests to the public’s detriment. There is often none to blame for the state of affairs because such a process is, after all, a political process with a democratic outcome regardless of the reasons fronted during lobbying.
Kleinfeld underscores the point that it is indeed difficult to achieve absolute democracy in the criminal justice system.[3] The other challenge with the thesis is the difficulty in determining the extent of democracy that the criminal justice system should have achieved compared to the current state of affairs.
Determining the extent of democracy is difficult because the discretion that judicial officers and law enforcement officers have in determining when to seek pleas, when to reject or drop charges, and when to prefer charges against suspects. On the part of the judges, they have discretion over determining the cases given that the criminal justice doctrine of decision-making on the basis of the interest of justice forms part of their case determination process.
In this case, the requirement for them to decide a case in the interest of justice gives the judges the liberty to decide the case without necessarily considering to the past similar case rulings. A bottom-up community policing strategy will align with the state of police work in the US.
Types of Management in an Administration That Align With the State of Police Work in the United States as Kleinfeld Sees It
The best management in administration will be a democratic administration with a bottom-up approach instead of the top-down approach of community policing. The former will enhance the absolute democratization of the criminal justice system. Cullen-Lester asserts that people feel at ease when they govern themselves than when rules, regulations, and edicts are imposed upon them as manifest in McGregor’s theory Y whereby people, who are motivated, can undertake their tasks with gusto without necessarily having to be supervised by the authority.[4]
The adoption of a democratic management approach as one of the models of the criminal justice system in the administration by the police in the United States will bear fruit, given that the American society is more informed; hence, a bottom-up community policing will be the best democratic approach for such a populace. In this case, the police will have to assume servant leadership and leader-member exchange theory of leadership. In servant leadership, the leader focuses more on satisfying subjects’ needs such as career development and motivation at the place of work.
Servant leadership leads to a stellar performance by the subjects because often, the hindrances to employee performance are their personal challenges relating to work and sometimes, domestic issues. Yammarino asserts that democratic management in administration will motivate the people in being law-abiding because a democratic administration entrenches the belief in ‘We the People’ solidarity amongst subjects.[5] This underscores people’s fundamental sovereign power to govern themselves.
On the other hand, the leader-member exchange theory underscores the focus of high trust between the leaders and their subjects. In a bottom-up community policing democratic administration, the law enforcement officers are likely to win high trust among the citizenry. It is because the police will not have high-handedness in policy handling crime. The police will play a passive role whereby the society will actively participate in reporting crime and receiving feedback on such crimes. A bottom-up community policing accrues many benefits.
A bottom-up community policing approach will enhance community accountability in crime that occurs in the community. Karp asserts that the adoption of bottom-up community policing in the administration of the law enforcement officers will underscore transformational leadership whereby the leader gives the subjects the leeway to craft new and novel ways of improving the organization through intellectual motivation and charisma.[6]
When the community takes the active role of influencing change, there is seamless cracking down on criminals and criminal enterprises. Furthermore, the law enforcement officers’ work will be made easy because of the collaboration that will be achieved by adopting the democratic management approach as opposed to the bureaucratic-professional approach in administration. Diversity plays a significant role in the administration of justice.
The Role of Diversity in Administrative Models
Diversity plays a pivotal role in administrative models. For instance, the democratic administrative models underscore the majority rule, whereby almost all members of diverse group interests are taken into consideration. Nicholl (1999) assert that diversity is crucial in a democratic administration because it underscores fairness and justice. In fact, it is rare for a majority of people to make wrong decisions, given that people are never under coercion to make democratic decisions, especially in polls.
Moreover, diversity brings about the divergent interests and opinions, which enhance egalitarianism whereby all interests are equally regarded. Ouziel asserts that a democratic administration encourages disagreements in principle rather than violent confrontations.[7] Diversity enhances the wholesomeness because it forges unity, which a criminal justice system cannot guarantee. In a democratic dispensation, issues are considered on morality and ethicality rather than on their legal ramifications. A democratic model of administration allows people to canvass their social and political issues without the necessity of punishment.
Democratic governance as one of the models of the criminal justice system often lasts because communities self-manage themselves, given that the people rather than the authorities best understand societal issues. For instance, the U.S is a cosmopolitan country; hence, the interests of the Latinos, Whites, African Americans, Asians, and Native Americans must be considered through a democratic process that underscores and enhances the interdependence and coexistence of the diverse groups. According to American Bar Association, diversity plays a crucial role in bureaucratic-professional governance whereby it informs the interpretation of the law.[8]
Therefore, diversity enhances fairness and justice in legal case determinations. Diversity is also crucial because it helps in the checks and balances of the institutions of governance. For instance, the decision made by a judge can be reviewed based on an aspect of discrimination manifest in such a decision. Diversity calls on the jury and the leaders to exercise fairness and justice in dealing with each of the diverse groups. In fact, diversity behooves a leader in a bureaucratic leadership setting to foster unity. Civic education is crucial in addressing the negative effects of ignorance of the law on society.
There is a need for civic education on legal issues, which the public could not ordinarily understand. Diversity encompasses the literacy gaps among the populace. For this reason, civic education is a fundamental undertaking that is indispensable in the realization of success in such a form of governance. Diversity also enhances egalitarianism and equality, especially in the application of the law. The equal application of the law is one of the ways that bureaucratic-professional governance evades issues of discrimination.
Auerhahn and McGuire agree with Ouziel that laws represent the social contract between society and the State.[9] Therefore, society must abide by the requirements of the law at all times to avoid anarchy. Authentic leadership is ideal for this form of governance. The fact that a bureaucratic-professional approach is culture-based means that the leaders must lead according to their experience and strict adherence to the rule of law regardless of legal-moral dilemmas. Both the democratic and bureaucratic-professional approaches address community relations.
How These Models Address Issues of Community Relations and the Communities’ Ability to Provide Feedback and Input
A democratic governance model in the criminal justice system fosters cordial relations in a community between members of the community and the law enforcement officers. When there are good community relations, the community readily provides feedback and input to the law enforcement officers. In this case, the power of governance shifts to the people, and they decide on how they should be governed.
In this model of governance model, crime rates are often low because the people will identify criminal elements amongst themselves and present them to the authority or excommunicate them from their communities altogether. Kleinfeld asserts that in a democracy, conflicts are minimized because the concerns of virtually every group are addressed.[10] Furthermore, in democracy, there is representation from every group during elections; hence, the voices of every group, even minority groups, are heard. Community relations can be addressed because the people determine it, and democratic governance provides an opportunity for community policing.
Democracy also provides an open environment for free expression of ideas and concerns as one of the models of the criminal justice system. Karp (1998) asserts that a democratic criminal justice approach enables the authorities to be versed with issues that ail the society, thus take remedial actions in good time. This enhances cardinal relations between the police and the community. In this case, it is possible to have a bottom-up community policing given that, such an approach is appropriate for democracy to prevail.
On the other hand, community relations are addressed by a bureaucratic, professional model whereby informed citizens, as is the case in the U.S., support the rule of law because they understand the law, and know their rights and their duties as well. This system addresses community relations issues by way of law enforcers taking action for any violation of the law, especially in cases of prejudicial killings and excessive use of force by the police.
The police’s excessive use of force often fuels tension in communities besides exposing systemic racism in American society. Bumgarner asserts that the over-representation of the African Americans in cases of the law enforcement officers’ excessive use of force, underscores criminal profiling and the weakness of the top-down approach of community policing.[11]
In bureaucratic-professional governance, community relations are addressed by way of seeking redress in the Supreme Court. The Supreme Court often serves as the final arbiter for the ordinary people who have been exploited by the State. In this case, the people’s grievances can be heard and determined in open forums, and communal relations have been addressed by the many landmark rulings that have set precedence on various aspects of social injustices, especially segregation. The literature supports a democratic criminal justice administration.
Does the Literature Support One Model Over Another?
The democratic governance as one of the models of the criminal justice system has been hailed as the one that creates the nexus between the learned and informed group and the ordinary people. The majority view is taken into consideration, unlike in a bureaucratic-professional model whereby few learned lawyers, magistrates, judges, and prosecutors take advantage of the illiterate to exploit them.
In fact, democracy is the better option because the growing majority of elected prosecutors manifest the power of democracy. Kleinfeld, Appleman, Bierschbach, Bilz, Bowers, Braithwaite, and Geraghty, assert that a democratic governance model attracts minimal resistance from the populace, hence minimal crimes.[12] A democratic model works best to enhance justice and fairness in a society.
There is a need to establish the extent of democracy and ensure whether such a threshold has been achieved so far. Kleinfeld prefers democracy because it accrues more benefits with regard to the realization of a just criminal justice system compared to the bureaucratic-professional model of governance.[13]
Kelsen asserts that the democratic administration model fits all aspects except when the criminal justice system is needed to address disorder in society.[14] When the social fabric is tainted by crime cases, the criminal justice system must intervene to restore the rule of law. The rule of law does not negate democracy because even the law is established on the premise of democracy. The exercise of power by the people underscores democracy. Departmental morale is crucial in the criminal justice system.
Departmental Morale
The workers in the criminal justice system department derive a moral from the adoption of bureaucracy and professionalism because of their experience over time. The workers in the department often cite various pieces of legislation to avoid blame for their actions. Cronkhite and Cronkhite assert that legality prevails in controversial issues, especially moral dilemmas.[15] This shows the extent to which bureaucracy only favors a few. A law such as Caveat Emptor is an example of a law that is unethical, yet enforceable.
However, the judicial officers have the discretion to use such a law to punish the victimized person and let the perpetrator scot-free. Although adopting the bureaucratic-professional model of governance, even in the criminal justice system, to promote the rule of law, there is a need to have checks and balances for the criminal justice system deliberations.
The wide scope of in-line enforcement discretion among law enforcement officers must also be subjected to checks and balances. The fact that the law enforcement officers can easily take advantage of such discretion to perpetuate injustice is a reality that the criminal justice system should address despite the lack of incentive for such a reform.
Ouziel asserts that the criminal justice system department could derive credence from the fact that its role of interpretation of the law is multifaceted depending on the ideological inclination of a judge.[16] The latest theories and best practices are effective in criminal justice administration.
The Latest Theories and Best Practices In Top-Down Criminal Justice Administration versus Community Participatory Criminal Justice Models of Administration
The major models used in criminal justice administration include the crime control model and the due process model. Roach (1999) asserts that the crime control favors plea-bargaining, which is often considered supportive of the community participatory criminal justice models of organizational transformation, community partnerships, and shared problem solving.[17] Grano asserts that the crime control model makes a distinction between factual guilt and legal guilty.[18]
In this case, the theory tends to favor a person’s trial based on the law enforcement investigation findings. According to National Research Council (U.S.), the crime control model is based on the assumption that the suspect will plead guilty based on the police findings to pave the way for plea bargaining among the prosecutor, the judge, and the suspect.[19] The police findings are suffice for a suspect to plead guilty of an offense.
The police findings save the law court time and resources, which could have been expended in the entire harrowing trial process. Dandurand, Griffiths, and United Nations Office on Drugs and Crime assert that the plea bargaining process encourages the correction of the criminal suspects because the admission of guilt as a process is ordinarily an exhibition of remorse and regret for wrongdoing.[20]
Givelber and Farrell agree with Kleinfeld (2016) that the crime control model is appropriate for curbing crime in society given that it puts a premium on the admission of guilt on the part of the suspects than letting a guilty person scot-free, especially in a compromised due process model prosecution process whereby the defense utilizes the technicalities in law to let a criminal off the hook.[21] The other top-down criminal justice administration model is the due process model. Roach adds that in this model, the suspect, whether guilty or otherwise, must be taken through the motions of pre-trial, trial, and sentencing. The factual guilt is considered crucial in the pre-trial stage.[22]
The factual guilt established by the law enforcement officers is insufficient to conclude that a suspect is guilty; thus, the legal guilty must be established by way of exhaustion of al defense legal mechanism available for the suspect. In this case, the prosecution must counter the defense team’s defense to the satisfaction of the jury failure to which the suspect is exonerated from any wrongdoing, and the prosecution bears costs associated with such proceedings.
Kent asserts that the due process model is based on the presumption that the law enforcement officers could err in their investigations into a crime committed.[23] Therefore, the due process provides each party with an opportunity to put their case forth and cross-examine, and the jury has the final say depending on the evidence and arguments made during the pre-trial and trial process. The democratic form of governance is the best option to achieve the best criminal justice system.
Kleinfeld favors the democratic approach of administration, which is underscored in the community participatory strategies.[24] Wisler asserts that organizational transformation is one of the models of community participatory criminal justice.[25] Dzur asserts that organizational transformation entails establishing a close relationship between the police and the community to enable the police to understand the community concerns.[26]
The model requires the redistribution of resources to enhance the creation of strong police-community relationships to address the causal factors of crime. Cullen-Lester asserts that community partnerships are the other community participatory criminal justice model, which includes partnering with community organizations including the church, schools, social, service entities tenant councils, and business groups, and the law enforcement officers.[27] Deliberations are made to ensure that the police are conversant with issues concerning crime occurrence in the community.
The partnership of such community groups gives credence to the crackdown of crime in society. Such community organizations’ partnerships enhance smooth information sharing, and crimes are easily curbed because no bad blood exists between such community groups and the law enforcement officers. Usually, crimes become prevalent when there is push-and-pull between the community organizations and the police, especially when the police are heavy-handed.
Dansereau claims that the community partnership model underscores the leader-member exchange theory whereby the leaders must forge a cordial relationship to enhance success in their collaboration in crime prevention.[28] The other community participatory criminal justice model of administration is the Shared problem-solving model. The model used in shared problem solving is SARA, which is a short form for scanning, analysis, response, and assessment.
SARA is crucial in community partnerships and organizational transformation models of community participation criminal justice approaches. Cronkhite asserts that the scanning, analysis, response, and assessment model is crucial because it involves identifying recurring crimes in society, which are critically analyzed before the community is extensively consulted on the possible causes of such problems in society.[29]
The use of a shared problem-solving approach underscores the crime control model of the top-down criminal justice administration. Kleinfeld (2016) asserts that the top-down criminal justice administration and the community participatory criminal justice administration underscore the democratic and bureaucratic-professional criminal justice models. The organizational design of the law enforcement department is crucial in the implementation of the community participatory criminal justice in society.
The organizational design must be restructured to make the police more accessible and more proactive rather than reactive in their mandate. Cronkhite and Cronkhite assert that the police department must be designed in such a way that it accommodates a participatory community approach rather than the high-handedness of the law enforcement officers.[30]
The organization design will incorporate the information sharing and information flow between the various community groups and the police. There is a need to adopt an information system that will enhance information sharing besides creating a database for reference on crime prevention and occurrences.
Conclusion
The criminal justice system should be democratized. The review of ‘Manifesto of democratic criminal justice’ by Joshua Kleinfeld has shown that there is a need to defend the democratization as one of models of the criminal justice system. However, rules, regulations and the law must govern the society; hence, the bureaucratic-professional model of the criminal justice system cannot be discarded.
The democratic model of the criminal justice administration is underscored in the organizational transformation, community partnerships, and shared problem models of administration. The use of scanning, analysis, response, and assessment, SARA, model in a shared problem-solving approach underscores the community participatory criminal justice system administration democratization.
References
[1] Nicholl, C. G. (1999). Community policing, community justice, and restorative justice: Exploring the links for the delivery of a balanced approach to public safety. Washington, D.C.: U.S. Dept. of Justice, Office of Community Oriented Policing Services.
[2] [3] [10] [13] [24] Kleinfeld, J. (2017). Manifesto of democratic criminal justice. Northwestern University Law Review, 111(6) 1368-1412.
[4] [27]Cullen-Lester, K.L. (2016). Collective and network approaches to leadership: Special issue Introduction. The Leadership Quarterly, 27(2), 173-180.
[5] Yammarino, F.J. (2012). Collectivistic Leadership Approaches: Putting the “We” in Leadership Science and Practice. Industrial and Organizational Psychology, 5(4), 382-402.
[6] Karp, D. R. (1998). Community justice: An emerging field. Lanham, Md: Rowman & Littlefield.
[7] [16]Nicholl, C. G. (1999). Community policing, community justice, and restorative justice: Exploring the links for the delivery of a balanced approach to public safety. Washington, D.C.: U.S. Dept. of Justice, Office of Community Oriented Policing Services.
[8] American Bar Association. (1994). A preliminary report and plan for action. Chicago: American Bar Association.
[9] Auerhahn, K., & McGuire, C. J. (2009). Revisiting the social contract: Community justice and public safety. Hauppauge, N.Y: Nova Science Publishers.
[11] Bumgarner, J. B. (2004). Profiling and criminal justice in America: A reference handbook. Santa Barbara, Calif: ABC-CLIO.
[12] Kleinfeld, J., Appleman, L. I., Bierschbach, R. A., Bilz, K., Bowers, J., Braithwaite, J., … & Geraghty, T. F. (2016). White Paper on Democratic Criminal Justice System, Northwestern University Law Review, 111(6), 1693-1705.
[14] Kelsen, H. (2009). General theory of law and state. Clark, NJ: Lawbook Exchange.
[15] [30] Cronkhite, C. L., & Cronkhite, C. L. (2013). Law enforcement and justice administration: Strategies for the 21st century. Burlington, MA: Jones & Bartlett Learning.
[17] [22]Roach, K. (1999). Four Models of the Criminal Process. Journal of Criminal Law and Criminology, 89(2), 671-716.
[18] Grano, J. D. (1996). Confessions, truth, and the law. Ann Arbor: University of Michigan Press.
[19] National Research Council (U.S.). (2008). Parole, desistance from crime, and community integration. Washington, D.C: National Academies Press.
[20] Dandurand, Y., Griffiths, C. T., & United Nations Office on Drugs and Crime. (2006). Handbook on restorative justice programmes. New York: United Nations.
[21] Givelber, D., & Farrell, A. (2012). Not guilty: Are the acquitted innocent? New York: New York University Press.
[23] Kent, R. (1999). Due process and victims’ rights: The new law and politics of criminal justice. Toronto: University of Toronto Press.
[25] Wisler, D. (2007). Community Policing: A Comparative View, International Police Executive Symposium Geneva Centre for The Democratic Control of Armed Forces. Working Paper No 6.
[26] Dzur, A. W. (2019). Democracy inside: Participatory innovation in unlikely places. New York, NY: Oxford University Press.
[28] Dansereau, F. (2013). What makes leadership, leadership? Using self-expansion theory to integrate traditional and contemporary approaches. The Leadership Quarterly, 24(6), 798-821.
[29] Cronkhite, C. L. (2008). Criminal justice administration: Strategies for the 21st century. Sudbury, MA: Jones and Bartlett Publishers.
