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2.2: Politics in Criminal Justice

Criminal Justice | Section 2.2: Politics in Criminal Justice

Section 2.2: Politics in Criminal Justice

Politics is the art and science of running a government and guiding governmental

policy. The nature of politics in America is con�ict and debate about policy, and

criminal justice policy falls into that arena. The American political system and the

criminal justice system involve the actions of the President, Congress, courts,

bureaucracies, interest groups, elections, and the media. These groups are mirrored

on the state level and to some degree on the local level. The actions of elected

o�cials have a direct impact on the system, and the policies they implement

directly a�ect how justice is done.

 The Politics of Selecting Decision Makers

In a democratic republic, one of two ways selects criminal justice decision-makers:

They either are elected by the public or are appointed by a public o�cial (often an

elected one). Elected mayors, for example, often appoint chiefs of police. The

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President of the United States (an elected o�cial) appoints Supreme Court justices

with the con�rmation of the U.S. Senate (a body of elected o�cials). Both methods

are highly political and cannot be understood without understanding something of

the political process.

The Politics of Law Making

Although the federal legal system and that of most states rely on the old common

law for its historical foundations, criminal law is mostly a matter of statute these

days. That is, criminal laws are made by legislative assemblies that decide which

acts are prohibited, and what punishments are appropriate for those that commit

those acts in violation of the law. Obviously, politics in�uences the laws that

assemblies pass. Today the nation �nds itself at the conclusion of what has been a

“get tough” era of criminal justice. Ushered in by the “crack epidemic” of the early

1980s, this has been a period of harsher punishments, longer prison sentences, less

therapeutic programs, and skyrocketing corrections budgets. The pendulum seems

to have reached the far right, and now may be swinging back toward the middle.

Many states have begun concentrated e�orts at �nding alternatives to

incarceration, and the federal government is considering early release for drug

o�enders sentenced under the “get tough” drug laws of the previous two decades.

The Politics of Policing

Most police departments try to distance themselves from the vicissitudes of politics

as much as possible. To be e�ective, law enforcement must be seen as fair and

impartial, serving all of the community without favoritism or political patronage.

The political climate of a community can have a huge impact on the police

department. Elected o�cials appoint police administrators, and can often �re them

just as easily. The style of law enforcement, formal departmental policy, and

informal norms can all be heavily in�uenced by local politics. The structure of local

government can have an impact on how police services are delivered. Professional

city managers, for example, are less likely to get involved in police a�airs than are

mayors and city council members.

The Politics of Prosecution

While police departments are often somewhat shielded from politics and in�uenced

by it indirectly, prosecutors in most jurisdictions are elected o�cials and thus

highly political. At the federal level, an essentially political process appoints U.S.

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attorneys. The career paths of these federal lawyers tend to be linked to one

particular political party or the other. It is common to see prosecutors at both the

state and federal levels using their tenure as prosecutors to launch political careers.

This fact gives rise to the unethical possibility of political prosecutions against

political enemies. In fact, many at the time stated that this was the sort of thing that

was happening with the impeachment proceedings launched against then-

President Bill Clinton.

The Politics of the Judiciary

There is a tendency among academic writers to view the judiciary as somehow

above partisan politics. In modern American reality, this is a pleasant �ction. Judges

at all levels of government are either elected or appointed, and this fact makes them

political creatures. Elected judges fear public reactions to issues with political

foundations, such as appearing “soft on crime” or being in favor of the death

penalty, or for it, depending on the political climate in the judge’s jurisdiction.

Those political a�liations and beliefs necessarily inform judges’ decisions.

Conservative courts tend to side with law and order, willing to sacri�ce some civil

liberties to maintain law and order. Liberal judges tend to take the opposite, ruling

in favor of civil liberties at the expense of (in the minds of the opposition) public

safety. It has been said that the real job of appellate courts is balancing the civil

rights of the people with the desire of the people to be safe from crime. Obviously,

the political belief of the justices making these decisions weighs heavily in the

outcome of important cases.

The Politics of Corrections

As with the other elements of the criminal justice system, corrections is a highly

politicized aspect of government. At the local level, the operation of jails is tied to

the o�ce of sheri� in many jurisdictions, which ties jail operations to the politics of

particular individuals being elected and reelected as sheri�. At the state level,

departments of corrections are highly political, with administrators and budgets

being politically determined. Another highly political aspect of corrections is the

membership and functioning of parole boards, which is established by appointment

of the governor in most jurisdictions. If parole boards make release decisions that

later re�ect badly on the board members, the bad press will ultimately turn to the

governor.

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The Politicization of Justice

As politics is such an integral part of criminal justice, a high potential for serious

problems generated by politics exists. Rash decisions can be made, poorly

considered policies can be implemented, and ill-conceived laws can be written that

hamper the e�cient and ethical administration of justice. Unscrupulous politicians

can easily make appeals to people’s emotions, fears, and prejudices to improve their

own chances at reappointment or reelection. Sadly, emotionally charged decisions

do not tend to be rational decisions. In the high-stakes world of criminal justice,

clear, rational thinking is often overshadowed by politically charged emotionality.

Crime Control versus Due Process

Herbert Packer (1964) outlined two competing models of the value systems

operating within criminal justice today: The crime control model and the due

process model. These two models of how the justice system should operate re�ect

two opposing sets of political ideologies that have a massive impact on criminal

justice decision-making at all levels. The divide is not as simple as Democrat or

Republican. Both models represent core values in the American way of life. After all,

every good citizen wants to see crime controlled. We want to live in safe, orderly

communities. As Americans, we also highly value freedom. We loathe the idea of

oppressive governments that interfere with our personal liberties. We are proud of

our rights to be free from government oppression, and we value our right to privacy.

According to Packer, “The value system that underlies the Crime Control Model is

based on the proposition that the repression of criminal conduct is by far the most

important function to be performed by the criminal process.” There is a de�nite

political philosophy that underlies this assertion: “The failure of law enforcement

to bring criminal conduct under tight control is viewed as leading to the breakdown

of public order and thence to the disappearance of an important condition of human

freedom. If the laws go unenforced, which is to say, if it is perceived that there is a

high percentage of failure to apprehend and convict in the criminal process, a

general disregard for legal controls tends to develop.” Therefore, adherents of the

Crime Control Model advocate enhancing the powers of the police to investigate and

prosecute criminals. These necessarily include enhanced powers of search and

seizure. Under this philosophy of criminal justice, the primary focus of the system

should be discovering the truth and establishing the facts.

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The Due Process Model takes a rather opposite view of how the system should

operate. The key to understanding this position is that it hinges on protecting the

civil rights of every citizen. Under this philosophy, the most important function of

the criminal justice system is to ensure procedural due process, which means

maintaining fundamental fairness in all aspects of the criminal justice process. A

major policy implication if this view is to limit police powers in order to prevent the

oppression of the individual citizen. Adherents of this position hold that merely

establishing guilt is not adequate; the government must show guilt in a fair and

legal way that respects the rights of the accused.

In reality, the courts and other elements of the criminal justice system have to

strike a balance between these two positions. It must be realized that the relative

importance of each of these positions is not static: There is a constant tug of war

between the two positions. As the makeup of America’s high courts changes, so too

does the underlying philosophy that dominates the decisions of those courts.

Liberal courts establish broad civil liberties, and conservative courts erode those

liberties in the name of law and order.

The Juvenile Justice System

The 1800s saw a revolution in the way Americans controlled juvenile delinquency.

The movement away from treating juveniles as adults began as early as 1825 when

the Society for the Prevention of Juvenile Delinquency began advocating separate

facilities for juvenile o�enders. Privately run juvenile facilities sprang up, and soon

generated controversy over reported abuses. This criticism led many states to create

their own juvenile detention facilities.

Detention facilities were not the only facet of the system that was changing. Illinois

passed the Juvenile Court Act of 1899, which established America’s �rst juvenile

court. The British policy of parens patriae (the government as the parent) was the

rationale for the state becoming involved in the lives of children di�erently than it

did with adult o�enders. The doctrine was interpreted to mean that the state had

both the right and the obligation to intervene when natural parents failed to

adequately discipline and protect children. A critical aspect of the developing

juvenile justice system was a focus on the welfare of the child. Delinquent youths

were seen as being in need of the benevolent guidance of the court. Rather than

merely punishing delinquents for their wrongdoings, juvenile courts sought to turn

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delinquents into productive citizens through treatment rather than the punitive

measures used in adult cases.

By 1910, 32 States had established juvenile courts, and many of those had

established probation services. By 1925, all but two States had established the

foundations of a juvenile justice system. The statutes that created these courts

made the doctrine of parens patriae explicit. The di�erent philosophy of the juvenile

courts led to both substantive and procedural di�erences between adult cases and

juvenile cases. Ultimately, most states had systems where those accused of crimes

and less than 18 years of age had their cases heard in juvenile courts. An important

di�erence was that juvenile courts were not adversarial in nature, and prosecutors

were not responsible for bringing cases before the court. Juvenile courts tended to

handle their own intake. Juvenile courts were prone to consider extralegal factors

when deciding how to deal with a particular case. Many juvenile courts had intake

procedures that allowed for the informal diversion of youthful o�enders where no

formal judicial action was taken.

Another major di�erence between juvenile courts and adult courts was the level of

formality. Juvenile proceedings were handled in a much less formal way than adult

trials. Because the court used the best interest of the child standard, many due

process protections a�orded adult defendants were considered unnecessary. A wide

range of dispositions was available for juvenile judges seeking to rehabilitate

wayward children. The doctrine of proportionality did not necessarily apply, and

delinquent children could receive anything from a verbal warning to being locked

up in a secure detention facility. The duration of these dispositions was very �uid.

The child would continue his or her “treatment” until they were cured, or became

an adult.

By the 1960s, many people had become disillusioned with the juvenile courts and

their ability to rehabilitate. The treatment options available to juvenile judges never

achieved the level of success that the public demanded. The underlying

assumptions about the validity of individualized treatment of delinquent youths

was not widely challenged, but the application of the philosophy by the juvenile

courts was brought into question.

The 1960s saw a radical change in society and the United States Supreme Court’s

opinions regarding civil liberties. These changes, while causing radical changes in

7/14/2021 Criminal Justice | Section 2.2: Politics in Criminal Justice | Professor McKee's Things and Stuff

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police procedure, were also felt by the juvenile justice system. The justices believed

that children should be a�orded many of the same constitutional safeguards to

their liberty as adult o�enders. Accordingly, they made several rulings in a short

span of time that protected these rights. A side e�ect of these procedural

protections was the formalization of the juvenile courts. Juvenile courts started to

look much more like adult courts than they did at their inception. Delinquents

facing the possibility of con�nement were guaranteed the right to an attorney,

protection against self-incrimination, and the right to receive notice of the charges.

The standard of proof changed from a preponderance of the evidence to beyond a

reasonable doubt in juvenile cases.

The Supreme Court declined to extend all adult rights to children. They, for

example, determined that juveniles had no right to a trial by jury. Congress was not

silent on juvenile justice issues during this time. In the Juvenile Delinquency

Prevention and Control Act of 1968, Congress recommended that children charged

with nonserious status o�enses be handled outside the court system. This was the

beginning of a movement toward community-based

sanctions, deinstitutionalization, and moving juvenile o�enders away from adult

o�enders.

The “get tough on crime” movement that swept the nation during the 1980s did not

leave the juvenile justice system unscathed. The public perception was that serious

juvenile crime was on the rise and that the juvenile courts were too lenient on

o�enders. Many states responded to this public outcry for tougher sanctions by

passing more punitive laws. One of the most controversial strategies was the

removal of certain classes of o�enders from the juvenile system and placing them

in the adult system. Others revamped their juvenile courts to operate more like

adult courts. As a result, o�enders charged with certain o�enses are excluded from

juvenile court jurisdiction or face mandatory waiver to criminal court. Prior to this

time, waivers to adult courts were possible, but it was relatively rare and done on a

case-by-case basis.

Every state made modi�cations to the juvenile justice system during the 1990s.

These were widely varied. Three major components were changed in nearly every

state. State legislatures passed laws that made it easier to transfer juveniles from

the juvenile justice system to the criminal justice system. Most states passed laws

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that gave criminal and juvenile courts expanded sentencing options. Most

legislatures also modi�ed or removed traditional juvenile court con�dentiality

provisions by making records and proceedings more open to the public.

Key Terms

Best Interest of the Child, Crime Control Model, Deinstitutionalization, Doctrine

of Proportionality, Due Process Model, Extralegal Factors, Informal Diversion,

Juvenile Court Act of 1899, Juvenile Delinquency, Juvenile Delinquency Prevention

Act of 1968, Parens Patriae, Parole Board, Partisan Politics, Policy, Politicized,

Politics, Preponderance of the Evidence, Sheri�, Static, Waiver

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Last Modified:  06/04/2021

 

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