WEEK 6 FINAL PAPER
PUBLIC POLICY PROCESS
The previously mentioned policy models assist us in understanding how the public policy process works, but they do not tell us how things become identified as problems, become issues to be addressed, and then how they eventually become public policy or law. The public policy process, as detailed in a very complex five-step process, is what provides us with this information. The five steps, in order, are (1) problem identification, (2) agenda setting, (3) policy formulation, (4) policy implementation, and (5) policy evaluation (See Figure 3.1). It is to these five steps of the public policy process that we now turn.
Problem Identification
In the first step of the public policy process, the problem at hand must be identified and then must move from being perceived as a private issue affecting only a small group of people to a recognized public problem.22 Prior to an issue becoming identified as a problem, it exists as a condition. It is something that is simply part of life, and when something happens as a result, we simply accept it and move on. For example, during the 1950s and 1960s, accidents caused by drunk drivers were simply that: accidents. There was no perception that this was a larger issue that needed to be addressed. When accidents, injuries, and even deaths occurred from drunk drivers, the incidents were dealt with by those involved but were not considered issues that needed addressing by the government.
Figure 3.1 The Public Policy Process.
Once a condition is identified by someone or a small group of individuals as a problem, there then exists, at a minimum, the perception of a problem. For example, if enough people perceive the issue of drunk driving as an issue, then it begins to move from a condition to a problem. Cobb and Elder talk about the “expanding public” when they detail how a problem may capture the attention of one individual who voices their perception of the problem.23 Other like-minded individuals agree and unite to strengthen that voice. Eventually, this may have a citywide, regional, statewide, and finally nationwide impact. This is often referred to in the media as a “grassroots” issue, one that surfaces from the ground up. As the public expands and the problem moves to the level of being an issue, much in the way that Downs spoke of the issue-attention cycle, then it becomes an issue for all the people, and specifically the government, to address.24
It has also been said that a problem becomes an issue when public disagreement exists over the best solution to the problem.25 This is because an issue is often a “conflict between two or more identifiable groups over procedural or substantive matters relating to the distribution of positions or resources.”26 Before problems are acted on, they must be recognized by legislators as issues of concern to the voters. In other words, the problem must capture the attention of major decision makers and be recognized as a viable and significant issue. For example, the previously mentioned issue of drunk driving moved from a condition to a problem when one girl, Candy Lightner’s thirteen-year-old daughter Cari, was killed by a drunk driver near her home in Fair Oaks, California.27 On May 3, 1980, Cari was walking to a school carnival when a drunk driver struck her from behind. The driver had three prior drunk driving convictions and was out on bail from a hit-and-run arrest two days earlier. Candy Lightner, after banding together with other mothers who had similar experiences, created a local California chapter of MADD. Later that year, another chapter was created in Maryland. MADD received the attention of the Reagan administration in 1982 and began to find its place on the government agenda. By 1983, the issue of drunk driving had become a major public policy issue and one that was actively being addressed by a majority of states as well as the federal government. Drunk driving had moved from a condition, was recognized as a problem, and became an issue as lawmakers debated on how best to address the problem. This issue had thus proceeded from condition to problem to issue and was now on the “agenda”—the second stage of the public policy process.
Agenda Setting
In agenda setting, decision makers must select issues that will be given priority and that will be ignored. At any given point in time, there are thousands of issues that are constantly vying for consideration by government, but only some of them will find a place on the government’s agenda.28 Certain problems are recognized as needing action, while others are postponed and some simply ignored. Crime, although always on the political agenda of both federal and state officials, does have periods of greater or lesser visibility.29 Many political actors contribute to creating the agenda: The president, members of Congress, interest group representatives, the media, and members of the general public can all help influence the final agenda.30 However, it has been noted that many of these groups compete with one another in the agenda-setting process by competing to attract the attention of various government actors. In addition, competition can also occur within these groups because the debate may center on the specific definition of the problem, and this can then lead to “competition over which groups and views to mobilize and how to do it.”31 One example is gun control policy.32 Many groups compete for government attention to their specific policies related to gun control (or no gun control) in the hopes that government will pass (or ignore) legislation based on their views. In addition, debate can also occur within these groups about how best to deal with the problem of shootings, whether it is public education, gun locks, or gun bans.
Cobb and Elder distinguish between two types of agendas: the systemic agenda and the institutional (or government) agenda. The former “consists of all issues that are commonly perceived by members of the political community as meriting public attention and as involving matters within the legitimate jurisdiction of existing governmental authority.”33 For an issue to be placed on the systemic agenda, it must have widespread attention, a shared concern that some type of action is required, and a recognition that the matter is appropriate for the jurisdiction of a government unit. This agenda is vague and does little more than identify possible problems of concern; no alternatives or possible solutions are suggested.
Typically, gun control is on the systemic agendas of all presidential administrations. Possible problems relating to gun ownership concern most elected officials, and few officials will argue that gun control legislation is an area of concern inappropriate for federal government activity. But quite often, administrations will go no further than simply recognizing the issue as a viable one. This is the pattern that followed in the Reagan administration prior to the attempted assassination of President Reagan.
The issue of gun control moved onto the formal (or institutional) agenda after the assassination attempt of President Reagan. The formal agenda is the second type of agenda described by Cobb and Elder and refers to “that set of items explicitly up for the active and serious consideration of authoritative decision-makers.”34 In this step, an issue must be identified as a problem requiring action or as an issue involving policy alternatives. The formal agenda is more specific than the systemic agenda, as it identifies the specific aspects of the problem or alternative solutions to a problem. The formal agenda is often more significant because it is a commitment for action.
It has been noted that the formal (or institutional) agenda may have a variety of issues undergoing various levels of attention. These have been referred to as specific types of institutional agendas and may consist of (1) the problem definition agenda (those items that are receiving active and serious attention to be defined), (2) the proposal agenda (those items that have reached the proposal stage where the problem has been defined but a solution is sought after), (3) the bargaining agenda (where proposals have been defined and a specific solution selected, but how this will be developed is debated), and finally (4) the continuing agenda (consisting of those items that come up for regular review).35
In moving from the systemic to the formal (institutional) agenda after the attempt on Reagan’s life, the issue of gun control received more serious attention from elected legislators. It was at this point that a policy alternative was suggested as a means to address (or solve) the problem of the excessive ease of availability of handguns in the United States. Here one can see that the problem is being addressed more specifically with alternative solutions suggested.
Kingdon argues that issues move from the systemic agenda to the institutional agenda as the result of two situations: the means by which officials learn about conditions and the ways in which conditions become defined as problems. In the first instance, the means, Kingdon includes indicators, focusing events, and feedback. For example, indicators can be used to assess the extent of the problem, or focusing events such as disaster can point to a problem that needs attention. Or, officials may discover problems through the feedback from an existing program. Second, according to Kingdon, conditions must become problems. He writes that we “put up with” conditions every day, but they must rise to the status of problems before they are placed on an agenda. Another way of saying this is that the first step in the public policy process largely dictates the second step.
Another way of understanding how items make it on the government’s agenda is offered by Cobb, Ross, and Ross in their discussion regarding three models of the agenda-building process.36 These three models consist of the outside initiative, the mobilization model, and the inside initiative model. The outside initiative model “accounts for the process through which issues arise in nongovernmental groups and are then expanded sufficiently to reach, first, the public agenda, and finally, the formal agenda.”37 The passage of the Prison Rape Elimination Act of 2003, interestingly, fits this particular model. In 2001, the Human Rights Watch, an interest group, released a white paper titled, “No Escape: Male Rape in U.S. Prisons.”38 From that document, numerous interest groups began to lobby Congress, including such diverse groups as the Just Detention International, Amnesty International, Focus on the Family, the NAACP, the Salvation Army, and Human Rights Watch. They were able to convince two Republicans, Senator Jeff Sessions (R-AL) and Representative Frank Wolf (R-VA) to introduce the Prison Rape Elimination Act, a zero-tolerance bill aimed at preventing and detecting incidents of sexual violence in prison and creating a National Prison Rape Reduction Commission. The bills garnered considerable bipartisan support and passed with unanimous consent in both the House and Senate. The bill was signed into law by President George W. Bush on September 4, 2003.
The mobilization model “considers issues which are initiated inside government and consequently achieve institutional agenda status almost automatically.”39 This model is almost the reverse of the outside initiative model in that, rather than something arising onto the public’s agenda and then moving to the government’s agenda, this will move from the government’s agenda to the public’s agenda. Government may generate a solution to a problem, but the bill will need the support of the people for it to pass. Clinton’s “100,000 Cops” initiative in 1994 was a government-proposed policy that was intended to support police departments across the country in the implementation of community policing and to help fight crime. It was a government-created program that attempted to generate public support for its passage, which it succeeded in earning, and was subsequently passed as the Violent Crime Control and Law Enforcement Act of 1994.
The third model is the inside initiative model. This model “describes issues which arise within the governmental sphere and whose supporters do not try to expand them to the mass public.”40 A good example of this was the creation of the United States Sentencing Commission when President Reagan signed the Comprehensive Crime Control Bill into law on October 12, 1984. This comprehensive bill included the Sentencing Reform Act of 1984, which mandated that the commission create a set of sentencing guidelines to which every federal court judge would be bound. The reason for the determinate sentencing guidelines was to ensure that defendants who committed similar offenses would be treated alike and that judges would no longer be too lenient or too harsh. This was a policy created within the White House that was not intended to be moved from the government’s agenda to the public’s agenda for the very fact that the administration did not want interest groups to have a say in how the reforms would be made. Although it did come to the attention of many groups and there were vocal critics against the administration’s proposals, the administration did not actively seek public support for its proposal, which was made into a law that took effect on November 1, 1987.
Policy Formulation
The third step in the policymaking process is policy formulation.41 This refers to the process by which formal policies are suggested and created. There are a number of factors that go into determining exactly how a solution will be formulated into a policy. One issue is to what extent the policy will be addressed. Will it consist of a major overhaul of the existing system, such as the sweeping changes in the federal sentencing guidelines in the late 1980s or the abolishment of parole in Virginia in the early 1990s? Or will it consist of small, incremental changes, such as increasing the sentence for drug offenders from a maximum of twenty-five to thirty years in a federal penitentiary? Another factor that is often the basis for the scope of the policy is the budget. Often economic constraints will cause the solution to a policy to shift from the allocation of money to simply the reallocation of existing resources. In severe economic constraints, it may limit the bill to simply a symbolic stand on the issue, such as congressional approval of the “Just Say No to Drugs” campaign. In the worst-case scenario, budget woes may force Congress to simply do nothing, and hence policy formulation is to formulate no policy.
In addition to these constraints, Congress must also determine specifically how the policy will be formulated, what it intends, and who will be responsible for the next stage, that is, implementation. There are generally four types of policies—distributive, redistributive, regulatory, and morality (see the following discussion for more detail)—and the type of policy often dictates specifically how a policy will be implemented. A part of this is what the policy intends to do in order to alleviate or solve the problem as well as how specific Congress intends to be in determining what will be done. Often Congress is very generic in the use of its language, allowing the president and the administrative bureaucracy to determine the specifics of policy implementation. And which bureaucracy is given the responsibility for the problem often plays into how the problem will be solved. After September 11, 2001, when Congress decided to take over control of the baggage screeners in airports, it debated placing them under the Department of Justice or the Department of Transportation. Ultimately, they decided on the latter, but had they chosen the former, baggage screening would be vastly different today.
A formal process does exist for a legislative proposal to become a law in our system of government. The process is very technical and involved and has been created by Congress over its long history. It begins with the introduction of a proposed bill into either the House of Representatives or the Senate. Eventually, both chambers of Congress must agree to the proposed bill for it to become a law. After introduction into one of the two chambers, the bill is assigned to the most relevant committee, which then assigns it to a subcommittee. Here the subcommittee members go through “markup,” which means that they rewrite portions of the proposal to make the bill more accurate or more politically feasible. For the members to do this, the subcommittee can hold hearings and listen to testimony from a variety of different sources in an attempt to gather information on the proposed legislation. After markup, the subcommittee members are required to vote on the proposed bill; if a majority votes in favor of the legislation, it then moves to the entire committee.
The full committee can also hold hearings and markup sessions, or it can choose not to. In either event, the members of the entire committee must then also vote on the proposal. Again, if a majority votes in favor of the legislation, then for further action the bill moves to the floor of the chamber in which it originated.
The same process must be accomplished in the opposite congressional chamber. For example, if a proposal for a federal death penalty has followed the previously described path in the House of Representatives, the same journey must be taken in the Senate. Frequently, the two versions of the bills passed by the House and Senate are not identical. In other words, as a result of the markup sessions, the House and Senate may have passed different versions of the same proposed legislation. In that case, a conference committee meets to resolve differences. This committee is composed of representatives from both the House and the Senate who attempt to iron out differences in the separate bills. It is necessary to do this because only one version of the bill can be sent to the president for approval.
After the conference committee version is agreed to by the committee members, the proposed bill (referred to as a conference bill or report) must then return to the entire floor of both the House and the Senate for another vote. If the bill is approved, the legislation is sent to the president for action. The president, at this point, has a few options. The president will either sign the bill into law or prevent its enactment by vetoing it.
The Brady Bill, after being placed on the formal government agenda and as part of a larger piece of proposed legislation, began its journey through the policy formulation process set up by Congress. The first step was a formal introduction into both houses of Congress, followed by assignments to the respective judiciary committees. A series of hearings were held in which various interested parties attempted to influence the final outcome of the proposed bill. Eventually, both the House and the Senate passed individual versions of the bill, at which point a conference committee met to resolve differences. The Brady Bill moved no further than the conference committee before Congress adjourned for the session and thus did not become law. It would take several more introductions and vetting through the process before the bill would be approved by the entire Congress and signed into law under President Bill Clinton.
Policy Implementation
The fourth step in the policy process, implementation, has often been described as “what happens after a bill becomes a law.”42 It essentially refers to “doing something” to carry out the mandate provided by Congress. Implementation consists of those activities that occur when agencies respond to the policy mandates of legislators. The agency personnel must gather necessary resources and develop a plan of action for carrying out that policy initiative in order for it to be effective.43
As legislators cannot foresee all the questions that might arise in implementing a program and because they often lack the expertise for creating specific programs, most of the legislation passed by Congress is vague. Thus, the legislators delegate a great deal of discretion to the various executive agencies to interpret vague policy statements produced in legislative enactments. As the agencies must fill in the gaps in the legislation, they are, in effect, making policy. This is why many have argued that policy should be clearly stated and consistent with other policy objectives and that those who are going to implement the policy should be involved in the formulation of that policy.
As a result, one can see why implementation has been described as a process, an output, or an outcome.44 As a process, it is a combination of government decisions and actions that are directed toward putting the congressional mandate into effect. As an output, it is the way in which program goals are pursued, such as the amount of funds to be allocated to the enforcement of the Brady Bill. Finally, as an outcome, it is the impact that the policy implementation has on the problem itself: did it help reduce crime?
Policy Evaluation
The final step in the policy process is a review of the programs after they are implemented. Policy evaluations are concerned with the actual impacts of legislation or the extent to which the policy actually achieves its intended results.45 Policy evaluation can be done by the courts, Congress, or personnel either inside or outside the agency. The purpose of program evaluation is to determine if the program is doing what it said it would do and if it is reaching the goals identified by policymakers. Another concern is whether the program is being accomplished in a cost-efficient manner.
There are two types of evaluations: process and impact. Process evaluations, often known as output evaluations, are those evaluations that look to see if an agency is meeting the mandate set forth by Congress. One example is the mandate under the Violent Crime Control and Law Enforcement Act of 1994, which mandated that the Department of Justice, through the Office of Community Oriented Policing Services (COPS), deliver grants to state and local police agencies to hire police officers under the concept of community policing. A process evaluation conducted on the COPS office found that they were in fact quite successful in moving the grants to the police agencies in a timely manner.
The second type of evaluations is known as impact evaluations and is often referred to as outcome evaluations. These consist of studies conducted on the effect that congressional policies have actually had on a specific problem. In the case of the COPS grants, they were intended to assist agencies with the hiring of additional police officers to implement community policing, which was aimed at reducing crime and improving the quality of life in the city or town receiving the grant. The outcome of the COPS grants has received mixed reviews. While some have argued that it did assist in the reduction of crime, official crime rates have been falling throughout the United States since before the implementation of the program; therefore, it is difficult to discern whether the COPS grants truly had any impact. In addition, many agencies secured the grants but then failed to implement a community policing program, or they started one up but it was limited to the officers they hired. Other agencies used the grants to start up or expand existing community policing programs that have developed far beyond the hiring of a few additional officers. Therefore, evaluating the impact of the COPS program has been more mixed.46
More recently, there has been a growing awareness that modifications of existing policy are possible at this step (by legislators or bureaucrats), as is identification of other problems and goals. In this sense, then, the policy process can begin again at the first step, making the development of public policy a cyclical process. What is truly at work here is policy change. If the policy is being implemented as intended, in a cost-efficient manner, and it is achieving its goals and solving problems, there is no reason to change the policy. However, this is generally the exception and not the rule. Problems associated with the policy may not have been adequately addressed or new problems arise so that policies must be changed.
The most likely scenario is change, and there are four types of policy change: linear, consolidation, splitting, and nonlinear.47 Linear change consists of the direct replacement of a program or policy by a new program or policy. An example could be the replacement of the Drug Abuse Resistance Education (DARE) with an entirely new program to reduce drug abuse by teenagers. Consolidation is when several programs are collapsed into one program. This is essentially what President Nixon did when he collapsed the Bureau of Narcotics and Dangerous Drugs, the Office of Drug Abuse Law Enforcement, and the Special Action Office for Drug Abuse Prevention into the Drug Enforcement Agency (DEA).48 Perhaps the best example of this is the creation of the Office of Homeland Security, which has absorbed over a dozen existing agencies or agency functions under one administrative department. Splitting a program consists of taking a preexisting agency and splitting its duties into two separate agencies. There has often been talk of splitting the two functions of the United States Secret Service, which consists of counterfeiting and presidential protection, into two agencies, but tradition and politics have prevented this from happening.49 Finally, nonlinear change consists of a complex organizational change that doesn’t follow any of the other methods intended to improve a specific program. Perhaps a good example of nonlinear change is the Bush administration’s movement to keep the office of Community Oriented Policing Services, while at the same time drastically cutting its budget.
Finally, there is always the possibility that a specific policy will be terminated. In some cases, this is simply to end an old program or policy and to replace it with a new one (consolidation, as described previously). In other cases, it is to end outdated or inadequate policies that have failed to work or to continue producing results. In still more cases, Congress places a “sunset” clause into a specific bill, meaning that after a certain amount of time, the agency will be shut down. Policy termination can also mean “functional termination of a policy area, organizational termination, policy termination, and program termination.”50 Respectively, a specific policy such as drugs may be terminated through legalization of drugs, an agency such as the DEA might be terminated, a specific policy such as drug treatment may be terminated, or a specific program such as methadone treatment may be terminated. Although sometimes policies will be terminated with a dramatic suddenness, most tend to dissolve slowly over time.
One more aspect of understanding public policies and how they are implemented is understanding the type of policy that is being used to resolve a problem. The type of policy employed to resolve a problem can vastly change the way in which government deals with the problem. The four types of public policies are termed distributive, redistributive, regulatory, and morality.51 The first two are generally about how money is to be distributed within their respective policies, while the latter two are aimed at distributing values.
Distributive Policies
Distributive policies are those aimed at providing benefits to everyone. There are no qualifications on who receives the benefits, and if there are, they tend to be more administrative than anything. Distributive policies are often referred to in the media as “pork-barrel projects” because these are often add-ons to bills that bring money into a representative’s or senator’s state, usually through a quid pro quo—you vote for my pork project, and I will vote for yours. While generally given a negative treatment, as many pork-barrel projects are seen as wasteful spending, distributive policies can be a very powerful policy type because everyone wins. For example, with the passage of the Violent Crime Control and Law Enforcement Act of 1994 and the grants provided to state and local law enforcement agencies under the “100,000 Cops” initiative, everyone won with this program since it was nothing more than a pork-barrel project writ large. Any police agency (or city or town that wanted to start a police agency) could simply apply to the Office of Community Oriented Policing Services with a one-page form via fax, and they would be awarded a grant to hire a new police officer receiving 75 percent of that officer’s pay and benefits for three years. The main reason for rejection was that the form was filled out improperly. Other than that, there were few impediments to receiving the grants. As a result, the police departments benefited, but so too did the local politicians, such as the mayor and city council members. Members of Congress could claim credit for bringing the grant into their state, and the president could claim credit for helping make America’s streets safer. This credit claiming is one of the greatest benefits to distributive policies, while the biggest detractor is the cost.
Redistributive Policies
The second public policy type consists of redistributive policies. These types of policies are different from distributive policies in that they will shift benefits to specific groups by taking benefits away from other groups. Rather than everyone being a winner, as in distributive policies, here some people are winners and some losers. This type of policy is often referred to as “robin hood” politics, as it often “takes from the rich to give to the poor.” For example, in the area of drug policy, when Congress allocates funds for enhancing drug treatment through behavioral modification programs and methadone treatment for convicted drug offenders, it may take away funds that could be used for other programs for nonconvicted offenders, for drug addicts, or for drug prevention in the schools. In addition, it is taking money from taxpayers who are not addicted to drugs and will not receive this benefit in order to give it to someone who is addicted. The benefits to redistributive policies are that they draw on a large amount of resources and bring them to bear on a specific problem. The drawback to redistributive policies is that they do not benefit everyone, only a select few.
Regulatory Policies
The third public policy type is regulatory policy. In regulatory policies, there is often not a tangible benefit that is distributed; rather, a policy is created to ensure that people do things in a certain way. Regulatory policies are designed to protect the public at large by establishing the conditions under which various activities can or cannot take place. What they regulate is behavior. In the criminal justice field, nearly all the policies passed are regulatory by nature. For example, dictating the blood alcohol level at which someone is legally considered intoxicated and impaired is a regulatory policy aimed at regulating behavior. Determining the amount of crack cocaine a person must have in his or her possession to be charged with the intent to distribute and the corresponding penalty associated with a conviction is also an example of a regulatory policy. Another example (discussed previously) can center on how best to regulate the selling of firearms and ammunition in America. The benefit of regulatory policies is that they are established to ensure greater order in society by attempting to control people’s behavior. The drawbacks to regulatory policies are that they can become overbearing on the system, become too complex to enforce, or simply be ignored.
Morality Policies
The last public policy type is morality policy. While regulatory policies can often be complex because they are based on a variety of issues, morality policies tend to be much simpler in that they deal with what is known as “first principles.”52 These principles are based on individual morality, which determines what is right and what is wrong. Because these types of policies are rooted in people’s understanding of what is right and wrong, there is usually little in terms of compromise that can be achieved; hence, they tend to become very divisive issues. And as a result of people’s first principles and their highly divisive nature, the public tends to be more heavily involved in these public policy issues than most others. In criminal justice, many of the issues that we deal with are, by their very nature, morality policy issues. Examples include pornography, abortion, death penalty, drugs, homosexuality, gambling, euthanasia, gun control, and suicide. Based on their morality, people tend to have an understanding that these issues are “right” or that these issues are “wrong.” As a result, we have people who favor pornography and those who do not. We have those who are in favor of abortion and those who are against it. Because such issues are based on morality and because they are two-sided issues, morality policy is often the most difficult for government to deal with. Therefore, any understanding of benefits and drawbacks are also based on individual ideology, so what may be a benefit for one group, say, legal abortion, may be a drawback for another group.
Perhaps the most important point about the four public policy types is that, however, Congress structures a specific policy will largely dictate how that policy is implemented. For example, if Congress wants to control crime, it could create a distributive policy to give every police department in the nation a certain amount of dollars to fight crime. Everyone wins. However, not every police department faces the same level of crime, and if each is given an equal share, the impact it will have on a small police department will be great, while the impact on a large metropolitan agency will be almost nonexistent. Therefore, Congress could make it a redistributive policy that uses money from all over and then redirects it only to cities that have a significantly high crime rate. A few crime-ridden cities will benefit for sure, but the majority of agencies will not. Thus, rather than formulating the policy as a redistributive policy, they could make it a regulatory policy aimed at reducing crime. For example, Congress could pass a regulatory policy aimed at reducing gun-related violence by mandating that all states increase the penalty for felonies committed with firearms to life in prison without parole or otherwise lose all Department of Justice funding. While this regulation may force states to change their laws, it may be too burdensome for states and local jurisdictions to implement. Therefore, to reduce crime, Congress could use a morality policy, perhaps still under the concept of gun control (clearly a morality policy issue), by passing a law that bans all firearms from private ownership unless the individual is in the military, police service, or security work. Certainly this last policy would be divisive, and there would be many who would support such a ban, but there would be many who would come out to protest over such a sweeping ban. All these policies are aimed at reducing crime, but the type of policy employed will determine how exactly the policy will be implemented.