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.
Lauren M. Ouziel, Democracy, Bureaucracy, and Criminal Justice Reform, 61 B.C.L. Rev. 523 (2020), https://lawdigitalcommons.bc.edu/bclr/vol61/iss2/4