Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency

Vanderbilt Law Research Paper No. 22-24

100 Oregon Law Review 261 (2022)

99 Pages Posted: 7 Sep 2022 Last revised: 28 Oct 2022

See all articles by Edward L. Rubin

Edward L. Rubin

Vanderbilt University - Law School; Vanderbilt University - Department of Political Science

Malcolm M. Feeley

University of California, Berkeley, School of Law (Boalt Hall)

Date Written: February 1, 2022

Abstract

Our so-called criminal justice system is in fact a disorganized mélange of poorly supervised police departments, over-aggressive prosecutors, under-funded public defenders, chaotic criminal courts and overcrowded, under-controlled prisons and jails. Many valid criticisms have been levelled against its particular components and the racist, classist and vindictive attitudes that motivate it. This article identifies a more basic cause of the system’s failure and recommends a more comprehensive solution. The various institutions that we use to deal with the problem of criminal activity are atavisms, holdovers from the pre-modern era when crime control was the defining feature of government (together with foreign affairs) rather than one element of a wide-ranging system of public administration. As a result, these institutions are frozen into outdated, balkanized and reactive formats that fail to achieve the system’s basic goal of crime prevention.
For considerably more than a century, our society has addressed other social issues such as education, public health, employment conditions, consumer safety and environmental degradation by creating administrative agencies with comprehensive responsibility and at least an expectation that they will develop a coherent strategy. The same should be the case in criminal justice. An integrated, hierarchically organized agency in each state would be able to plan general approaches, manage resources and coordinate functions, all essential tasks that are currently ignored or underdeveloped. In addition, it would have the capacity to train staff, supervise their performance, punish misconduct, and develop new patterns of behavior that would detach criminal justice institutions from their pre-modern, militaristic origins. An orderly administrative system of this sort is almost certainly the only way to alter the deeply ingrained patterns of behavior that continue to produce so much abuse and oppression in all our criminal justice institutions. While constitutional law protections should not be diminished, the criminal trial, now utilized by only a few percent of all defendants, should not serve as the organizing principle of the system, but rather as a means for dealing with the most recalcitrant individuals, as it does in other areas of administration such as securities law and environmental protection.

Keywords: Criminal law, criminal justice, administrative law, policing, prosecution, punishment

Suggested Citation

Rubin, Edward L. and Feeley, Malcolm M., Criminal Justice Through Management: From Police, Prosecutors, Courts, and Prisons to a Modern Administrative Agency (February 1, 2022). Vanderbilt Law Research Paper No. 22-24, 100 Oregon Law Review 261 (2022), Available at SSRN: https://ssrn.com/abstract=4211714

Edward L. Rubin (Contact Author)

Vanderbilt University - Law School ( email )

131 21st Avenue South
Nashville, TN 37203-1181
United States

Vanderbilt University - Department of Political Science ( email )

VU Station B #351817
Nashville, TN 37235-1817
United States

Malcolm M. Feeley

University of California, Berkeley, School of Law (Boalt Hall) ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

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