By Any Means: A Philosophical Frame for Rulemaking Reform in Criminal Law
A Response To
abstract. Equitable crime policy and equity in the process of crime policymaking stand as the two goals most important to criminal-justice reform advocates. It would be a strategic mistake, however, to consider the two of equal importance. Crime-policy reform should be considered the first-order principle of the crime-policy reform movement. Fairness in the crime-policymaking process, while key to the pursuit of democratic ideals, is best understood as a secondary consideration. Put simply, the prioritization of fair process risks stifling the crime-policy reform movement by tethering the policy ends of the movement (namely, minimalism in criminal administration) to a pre-ordained means.
A crime-policy reform movement is principally about crime-policy reform. A given model of crime-policymaking process may ultimately serve the goal of policy reform, or it may not. Given this latter possibility, reformers must uncouple the normative pursuit of equity in the process of crime policymaking from the normative pursuit of substantive crime-policy reform. They should likewise prioritize the transformation of substantive crime policy over the transformation of the process of crime policymaking. It might be useful, for instance, to think of “democratic policing” as a process-based movement that runs parallel to the pursuit of equitable policing. The object of a democratic-policing movement is to broaden the distribution of authority over police administration; however, this achievement may be wholly independent of the qualitative transformation of policing itself.
Jocelyn Simonson’s pioneering and timely article, Police Reform Through a Power Lens,1 argues for an ambitious egalitarian innovation in crime-policymaking process. Simonson proposes that socially and politically marginalized individuals and groups be given far greater policymaking power in the field of criminal administration. It is a proposal that holds considerable appeal for progressive criminal-justice reform advocates—and for good reason. The oppressive quality of American criminal administration could, in theory, be countered by conveying more power to disfavored racial and economic classes. Simonson argues that these groups, most likely to be subject to the excesses of American criminal administration, have an epistemic advantage in the pursuit of reform. But for Simonson, “power-shifting” in favor of the marginalized is the right thing to do primarily because it limits social domination in the context of the rulemaking process. In this sense, Simonson argues by way of a series of principles of equitable policymaking process for what might be called policymaking justice.2 She concedes that power-shifting could either narrow or expand the role of the penal state in American life given that the marginalized cannot be assumed to agree on a crime-policy platform. Thus, the justice inherent to power-shifting does not lie in crime-policy outcomes, but rather in the quality of the policymaking process itself.
To be clear, Simonson introduces the goal of shifting rulemaking authority in the direction of the marginalized as complimentary to various other philosophies and strategies used in the reform movement. (“[W]e should incorporate the power lens into the array of objectives of ‘police reform.’”3) However, this contextual frame for the utility of the power lens sags a bit when Simonson openly rejects the instrumentalist’s approach to crime-policy reform. In lieu of a utilitarian approach to crime policymaking, Simonson advocates for specific models of policymaking process reform that are more inclusive and therefore more just. In this way, the power-shifting model reads as being principally focused on the rejection of paternalistic and domineering rulemaking in criminal law, with the net effect of the shift registering as a second-order consideration.
This Response to Professor Simonson’s forthcoming article argues that the debate about the means of crime-policy reform should be centered on the principle of process efficacy rather than the principle of process equity.4 In doing so, the Response presents a philosophical frame for rulemaking reform that foregrounds the emerging means-ends debate among criminal-legal scholars. There is a branch of the criminal-law reform literature that advocates for crime policymaking to be concentrated among penal bureaucrats and insulated from a perceived punitive populism.5 A competing branch argues, in turn, that crime policy—policing policy in particular—has become more punitive given the heightened power of penal bureaucrats together with the diminished influence of the persons and populations most often subject to the grinding wheels of penal administration. This is the right debate. It is an instrumentalist’s debate about which means will deliver the desired policy ends.6 It rightly ignores the familiar question of whether the ends justify the means. Whether the most effective means to crime-policy reform is “democratic deliberation” among local neighborhoods or the deliberation of a panel of state experts is not, then, of central importance. The ends—crime policy transformation—should stand as the priority, well ahead of notions of egalitarian process.
I offer this mean-ends philosophical frame in three parts. Part I argues that Jocelyn Simonson’s power-shifting thesis represents an important step forward in the democratic-policing literature. While this literature has generally held that police governance should be more democratic, it continues to wrestle with the question of how to structure expanded democratic influence over the police institution. At the heart of Simonson’s normative contribution is advocacy for inclusivity at the social margins. To this end, Simonson introduces three principles meant to clarify the meaning and practice of democratic police governance: reparation, antisubordination, and contestation.7
Part II turns from Simonson’s normative intervention to a philosophical question about how to situate debates regarding the process of crime policymaking within the broader crime-policy reform movement. It argues that while the pursuit of inclusivity in crime policymaking is meaningful in its own right, it should not be conflated with the pursuit of equitable crime policy. It is not merely that inclusive crime-policymaking projects are qualitatively different from the equitable crime-policy project; it is, moreover, that the two projects can and do fall into direct tension.
In light of prospective tensions between the pursuit of equitable crime policy, on the one hand, and the pursuit of a more equitable process of crime policymaking on the other, it would seem incumbent upon reform advocates to choose. In the movement for crime-policy reform, which category of reform should be given priority—crime-policy reform or reform of the processes underlying crime policymaking? Part III argues for a hierarchy of criminal-justice reform principles, and, moreover, that within the hierarchy, the pursuit of equitable policymaking process should take a backseat to that of equitable crime policy. A conscious decision among reform advocates to elevate fair policy above fair process holds considerable value at a moment in which the criminal-justice reform movement begins to engage the broad and diverse range of policymaking processes found across our federalist system of government.
To realize the goal of democratic crime governance, the state must situate more authority over police administration among historically disempowered race, class, and race-class subordinated individuals and communities. This worthy goal falls among a litany of issues pertaining to social equality that have lodged in the American consciousness in recent years. A cohort of criminal-law academics not only argue for “more democracy” in relation to police governance, they also rightly press for much more precision by academics in their normative theorizing of democratic influence.8 Jocelyn Simonson is a leading and essential voice in this literature. Simonson has argued in various fora for the “devolution” of power over crime governance, fashioning “bottom-up forms of participation” as the truest reflection of democratic policymaking.9
Simonson’s most recent model of inclusive crime policymaking is based upon the notion of “power-shifting.”10 Terminology aside, Simonson appears to be driven by two primary objectives: first, to convey to the public more influence over police, and second, to establish a robust if not radical imagining and convening of the “public” that will exercise this influence.11 The power-shifting thesis thus represents a theoretical extension of the democratic-policing literature as it argues three specific principles by which to guide the democratic-policing project: reparation (policymaking reform as a remedy for past harm12), antisubordination (shifting rulemaking power to those made subordinate by the existing rules structure13), and contestation (the embrace of an “agonistic” crime politics such that rulemaking process “facilitate[s] collective resistance”14). These principles suggest power-shifting as being, in principle, a campaign for fair process. Power reallocation in keeping with Simonson’s principles will in some instances require the inclusion of individuals and groups at the social margins, giving them the proverbial seat at the table.15 Alternatively, it may mean something along the lines of minority exclusivity in crime policymaking.16 In which case, racial minorities, race-class minorities, and those bearing the mark of a criminal record17 are given not merely a seat at the table, but a table in which every seat is occupied by a member of a subordinate class. In foregrounding those at the social margins within the normative theory of democratic policing, Simonson addresses much of the ambiguity inherent in the notion of “democratic localism”18 as it relates to police administration.19
In this and similar theorizing of criminal-justice reform, Simonson draws the focus of reform advocates to the tip of the spear—police administration. Police are single-handedly responsible for feeding our larger systems of misdemeanor20 and felony case processing,21 and the supervisory systems underlying mass imprisonment,22 mass probation,23 and mass parole.24 There is therefore undeniable value in basing the rulemaking process for police administration on the principle of equity and, by the same token, making these processes more accessible to historically marginalized groups.
Simonson presents the power-shifting thesis to a hotly contested literature regarding the policymaking processes best suited to deliver fundamental and effective crime-policy reformation.25 Nevertheless, her position is clear and uncompromising26: rulemaking authority regarding police administration should shift to race-class subjugated individuals and communities.27 Simonson asks that our normative theory of policing advance beyond the neatly circumscribed public contributions to police governance made by way of notice-and-comment under administrative law as this model would seem to merely nip at the margins of conventional policymaking process.28 Simonson calls instead for a policymaking rupture. For example, under the power-shifting model, individuals with felony criminal records might be recruited to serve on police oversight boards.29 Civilian panels might be given the power to both fire disfavored police commissioners and pass binding police department policy.30 The Movement for Black Lives has described this alternative policymaking paradigm succinctly, arguing for “a world where those most impacted in our communities control the laws, institutions, and policies that are meant to serve us.”31
As a method of democratization, the power-shifting thesis thus lends conceptual precision to two overlapping literatures in criminal law: democratic policing32 and local control of police administration (referenced in the criminal-law literature as “democratic localism”).33 To this end, Simonson answers a question that had been dangling idly from both literatures: What are the guiding principles by which to convey more democratic authority over police administration to local publics? What specific principles should guide our conception of the “democratic,” of the “local,” and of fair and equitable rulemaking process? Simonson provides a bold and compelling answer to these questions by breaking the various social factions angling to govern police administration into two camps: the race-class subordinated and everyone else. Her power-shifting thesis thus represents a fairly radical reimagining of legitimacy in the process of crime policymaking, to the point where the project of including the socially marginalized in the crime-policymaking process may culminate in a policymaking process exclusive to the marginal. This remedial project, informed by the racial history of policing, is for Simonson the ultimate power play. “If policing is subordinating[,]” Simonson writes, “then shifting power to those who are subject to this subordination promotes equality and democracy, especially when that power is over the very levers of policy-making that control those subordinated systems.”34
It would be a categorical mistake to equate the pursuit of an equitable process of crime policymaking—even as it relates to race-class subordinated communities—with the pursuit of equitable crime policy. Plainly stated, the pursuit of equitable crime policymaking pertains to the specific means by which crime policy is promulgated, while the pursuit of equitable crime policy pertains to the substance of crime policy itself.35
The battle lines for the debate regarding crime-policymaking process could not be clearer. One camp, focused primarily on police administration, contends that dysfunction in police administration is largely a function of the insularity of the process by which the rules governing police are crafted and enacted.36 But this claim is not easily proven. Moreover, given the historical record, it cannot be taken as truth that insular administrative rulemaking necessarily correlates with dysfunctional and abusive policing.37 The point is not to suggest that democratic-policing scholarship has been axiomatic in its claims regarding the value of bringing “more democracy”38 to the policymaking that governs police administration. It is instead to say that if the community-based process of crime policymaking delivers a range of outcomes depending on time and structural context, it seems only prudent to remain agnostic, equivocal, and instrumentalist (rather than ideological or fundamentalist) as to the value of democratic or microdemocratic crime-policymaking process.39
Community-based crime policymaking may produce equitable crime policy, averting a tension between the two normative projects. But there is an alternative scenario in which crime policymaking at the level of community produces inequitable crime policy and inequitable crime-policy outcomes.40 Such a scenario can be the product of any number of factors, but I flag just two here: punitive populism within marginalized communities and dysfunction in the democratic process. In regard to punitive populism, what value is equitable process to the project of criminal-justice reform if the punitive crime politics seemingly endemic to American culture permeate marginal communities? In terms of the credibility of the democratic process, is it realistic to expect fundamental crime-policy reforms among microlocal working-class city neighborhoods if such reforms are not coupled with the transformation of social-welfare policy?41 If we have not first solved the structural inequality that produces the high rate of violent crime in poor urban neighborhoods,42 why would we expect the constituents of these neighborhoods to radically diminish police power?43 For instance, if these residents must first experience violent-crime reduction before embracing ambitious if not radical crime-policy reforms, and this reduction requires social-welfare policy reform, what is the value of locating crime policy at the neighborhood level (assuming this to be coterminous with the community level) when welfare policy transformation is only tenable at the state and federal levels?44 It is not that the project of channeling more governing authority to marginalized persons and groups is itself wrong-headed or anything but just; it is instead that one should not mistake the political justice of this reapportionment project for substantive change in the machinery of criminal administration. The two justice projects are not only different; they will inevitably function, at times, at cross purposes.
Simonson’s power-shifting model offers a specific vision of what it might mean for the race-class subordinated to exercise substantial control over criminal administration. By way of three principles of inclusive rulemaking process—reparation, antisubordination, and contestation—Simonson looks to channel authority within municipal democracies to groups with longstanding grievances against American penal administration. However, as Simonson readily acknowledges, it is not clear that devolution of democratic authority is sufficient to protect against the punitive sensibilities in American culture.45 This concession suggests power-shifting, as an end in and of itself, is ideological—based on a moral position regarding fair process—rather than instrumental. While punitive populism is certainly not a feature of the power-shifting project, its manifestation as a result of power-shifting cannot be considered a bug, given that the narrow goal of power-shifting is to give marginal individuals and groups authority over criminal administration irrespective of penal outcomes.46 Given the principles underlying power-shifting, the goal of egalitarian policymaking process—of self-determination, autonomy, and political choice as it relates to an identified marginal group—stands on roughly equal footing with the goal of crime policy change.
It would seem prudent, nevertheless, to account for the possibility of punitive populism under the power-sharing model. While the democratic-localism project would channel more authority over criminal administration to individuals and groups generally subject to the excesses and abuses of police administration,47 power-shifting, in its primary manifestation, would seem to allocate authority over police administration more narrowly to race-class subordinated geographic communities.48 But scholars of crime policy and policymaking reform would do well to disaggregate the race-class subordinated in any attempt to account for the impact of this or any similar democratic-policing project. There is a long line of scholarship showing patterns of African American intragroup-status distinction and bias analogous to that experienced by African Americans in relation to broader society.49
In his classic book, Code of the Street, Elijah Anderson offers one of the most prominent sociological monographs detailing African American intragroup other-ing.50 By way of ethnographic study of poor and working-class African American city neighborhoods, Anderson found that neighborhood residents split neighbors into two categories—the “street” and the “decent.”51 Moreover, these categories appeared to map neatly onto class status.52 African American working-class residents characterized the poor and chronically unemployed as “street” characters and subjected them to a barrage of negative stereotypes.
People who fit the conception of street are often considered
to be lowlife or “bad people,” especially by the “decent people,” and they are
generally seen as incapable of being anything but a bad influence on the
community and a bother to their
Anderson notes that individuals tagged with the “street” label often seemed to be fighting intractable situations; they were either unable to find a job that paid a decent wage or ravaged by drug addiction.54 In many instances their lives appeared to the “decent” as disorganized and their countenance full of frustration.55 Anderson cites several examples where African American working-class neighbors were decidedly unsympathetic to these larger structural circumstances bearing down on struggling racial peers. The observed working-class residents resented the disorder and routinely reported “street” neighbors to the police.
In a few of the specific examples that Anderson explores in detail, neighbors that self-identified as “decent” complained about a constant flow of visitors to the disorderly residences in question. The decent neighbors suspected that the people occupying these residences were engaged in narcotics trafficking, prostitution, or both. They became increasingly frustrated at what they perceived to be the blasé attitude of the police department toward these perceived threats to the health of the neighborhood.56
Remarkably, a later qualitative study comparing the views of white and African American police officers on African American working-class neighborhoods found that African American police deploy nearly identical tropes.57 While white officers tended to broadly characterize African American working-class-neighborhood residents in dehumanizing terms, African American officers viewed themselves as policing these neighborhoods in order to protect the “good” people of the ghetto from “street” characters and street culture.58
There is a wealth of sociological evidence indicating that African American communities in general, and African American working-class neighborhoods in particular, are highly moralized spaces rife with symbolic distinctions that inform internal group hierarchy. Social theorists invested in theorizing patterns of group formation tend to think of this sort of distinction among individuals as occurring by way of social closure.59 In this imagining, race is not the fundamental mode of group distinction. Race is instead a categorization scheme that represents one of several forms of social closure.60 Apart from racial markers and identifications, society assigns class identifications and criminal identifications, both of which facilitate social stratification and subordination.61 Thus, just as subordinated racial groups are subject to social closure, these groups often show internal patterns of social closure that inform intraracial stratification.62
We know, for instance, that African Americans have in any number of circumstances been found to take a “just deserts” rather than instrumentalist disposition toward punishment, particularly during periods in which violent crime in African American neighborhoods is relatively high.63 A common explanation for African American support for punitive crime policy is the paucity of policy options available to the African American community given the general public’s lack of support for social-welfare programs.64 A second and perhaps complimentary explanation—but one that has only occasionally been engaged in the criminal-legal literature65—is that, in any number of circumstances, African Americans may be inclined to reflect the punitive sensibilities that have consumed American culture for the past half-century.66
There is also a basic but difficult question regarding the logistics of the democratic process. Can the residents of a race-class subordinated neighborhood dictate the administrative rules that govern police administration in their neighborhood? Is this proposition even plausible given the gap between normative theories of democracy and corresponding practices? The countless variables that factor into the process of local democratic rulemaking together with the multilayered quality of federalist governance make political self-determination among the urban marginalized a daunting if not quixotic proposition.
In addition to the question of the reform inclinations among the racially and race-class subordinated, there is the question of political representation for the same groups. Which individuals or self-appointed interest groups accurately represent the views of the race-class subordinated?67 Here, we are principally concerned with the capacity of local democratic institutions to surface the perspective of the marginalized in the interest of power-shifting.
Take the example of the New York City Council and public statements made by some of its members regarding the local “Defund the Police” initiative. New York City Councilwoman Vanessa Gibson, identified by the New York Times as a “liberal Black Democrat who represents the West Bronx,” very publicly objected to a push by local progressive activists to cut the New York Police Department’s public funding by one billion dollars.68 Gibson argued that working-class minority New Yorkers wanted police to remain in their neighborhoods.69 She openly rejected the withdrawal of police services from the local minority neighborhoods reeling from both a global pandemic and a violent-crime wave.70 According to Gibson, her constituents wanted police to continue patrolling their streets: “They don’t want to see excessive force. They don’t want to see cops putting their knees on our necks. . . . But they want to be safe as they go to the store.”71
Gibson’s colleagues were not nearly as polite in their critique of the New York City “Defund” campaign. The City Council’s majority leader, Laurie Cumbo, also an African American woman, described the Defund initiative as akin to a “colonization” campaign advanced by white progressives.72 Other local minority politicians also characterized Defund in racially-charged terms, describing it as “political gentrification” and as a “bourgeois liberal” answer to structural racism.73 In a television interview on MSNBC, Al Sharpton disparaged Defund as likely appealing to the “latte liberal[s]” in the Hamptons who “s[at] around discussing [police violence] as an academic problem,” adding that “people living on the ground need proper policing.” Sharpton offered the comment as a partial response to the New York City Police Department’s report of a 166% increase in shootings in August of 2020 as compared to the same month the previous year.74
Collectively, these critiques might be dismissed as a hasty and unwarranted rebuke of an ambitious and timely crime politics advanced by progressive activists. But the New York City blowback over the proposal to defend the city’s police department is quite relevant to the democratic-policing debate in so far as it provides an opportunity to investigate some of the assumptions underlying auxiliary models such as power-shifting. Within the sprawling geographic and cultural landscape of New York City, who exactly should be taken to represent the race-class subordinated? Do we trust that Gibson, the minority city councilwoman from the West Bronx, speaks for the individuals in her district who normally lack a voice in crime policy deliberations—a seat at the policy table?75 Or do we probe the details of city-council elections—voting rates in particular—to get a sense of whether the acutely disadvantaged even participate within this specific channel of local democracy? Finally, to the extent that city councilpersons fail to account for the views of the acutely marginalized in their respective districts—those disillusioned by conventional politics—do we have good evidence that progressive activists accurately reflect the wishes of this neglected contingent?
Broadside attacks on crime-policy reform activists feel both reductive and counterproductive. However, it is only slight exaggeration to suggest that progressive activists in New York City and other large municipalities have drifted toward a policy position similar to that of reform-resistant police: race-class subordinated communities are to choose between police services laced with brutality or the substantial withdrawal of these services.76 But here, the point is to give some sense of the difficulty in discerning the crime policy preferences of race-class subordinated individuals and groups and translating those preferences into policy. Do local minority politicians successfully execute this agenda? Do progressive activists? Or are the preferences of the truly disadvantaged likely to get lost in the fraught local politics of minority working-class political representation?
Let us assume for the moment that within the context of the local jurisdiction we establish a reliable mechanism by which to discern and act upon the policy preferences of the race-class subordinated. There remains the question of the extent to which the rulemaking authority held by the race-class subordinated conveys control over police and other features of criminal administration. We live in a federalist system in which any one neighborhood is subject to police policies enacted at the city, county, state, and federal levels. Each level of government holds the power to influence police administration. How realistic is it, then, to believe that race-class subordinated neighborhoods can govern police exclusively, or even predominantly? Given the larger system of American federalism, is it plausible for a small microlocal jurisdiction to insulate itself from the influence of the municipal legislature, the mayor, state governments, and the federal government given the importance of city and county budgeting, state-level preemption, and federal conditional-funding streams for public-security administration?77
Microlocal control over police may be possible and may also, if fully realized, deliver some degree of reform. But the costs of working tirelessly to insulate race-class subordinated neighborhoods from the several layers of external governing authority would likely be quite high. In which case, will neighborhood-level policymaking, as an exclusive model of police governance, pay its way? Will the benefits of the fight to make marginal-community governance relatively exclusive exceed the costs? This is to say little of the costs to the broader reform movement of committing to specific sanctioned channels of reform—whether it be community-based or administrative rulemaking—rather than broadening to the array of policymaking opportunities across the federalist system in pursuit of ameliorative crime policy.
If our goal is to put out the fire—to alleviate a humanitarian crisis broadly referenced in mainstream discourse as “mass incarceration” and “overcriminalization”—what are the specific benefits that flow from making fair policymaking process a first-order principle in the criminal-justice reform movement? What are the benefits separate from the realization and affirmation of the democratic values core to national lore and treasured if not fetishized in the academic disciplines of law and political science?
Consider major crime-policy reform movements of the past several decades. While many large American cities deemphasized the enforcement of state-level marijuana prohibitions, state governments were largely responsible for the process of legalizing marijuana possession through the repeal of related state criminal prohibitions.78 Organizations such as the Marijuana Policy Project (MPP) continue to lobby state legislatures to establish state regulatory frameworks for marijuana that reflect those regulating alcohol.79
In the “About Us” section of its website, MPP shares that one of its core commitments is to remain attentive to the features of the federalist system: “Our primary goal is to legalize cannabis nationwide, and we believe the most direct path is through the states. We look for the states with the strongest opportunities for success and where we can most effectively impact the national discussion.”80 MPP expressly promotes inclusion, equity, and “justice” in the substance of cannabis legislation and in the cannabis industry, but does not appear to be encumbered by a commitment to community control of policymaking process.81 It claims to be the “driving force” behind ballot initiatives to legalize marijuana in Colorado (2012), Alaska (2014), Maine, Massachusetts, Nevada (2016), and Michigan (2018), and is currently pursuing similar policy change in Connecticut, Delaware, Maryland, Minnesota, New Hampshire, New Jersey, Rhode Island, and Vermont. It will soon introduce medical marijuana measures in less hospitable states such as Kentucky and South Carolina.82 A cursory review of MPP’s strategy and ethos shows the organization to be principally driven by its sense of equitable penal outcomes rather than by equity in the policymaking process that produces those outcomes.
To be clear, the MPP example is not offered to assign a negative value or even an absolute value to the democratic-localism project and power-shifting.83 It is instead meant to show that this value should be understood as contingent rather than fixed. If state governments and the federal government are already inclined in a given cultural moment to take major steps toward policy reform, there would seem to be little value in power-shifting to municipal neighborhoods that have historically been unfairly targeted by police.
In the months after police killed George Floyd in Minneapolis, the Trump Administration issued Executive Order 13,929, which required that the Department of Justice withhold federal funds from state and local police departments that permit police use of the chokehold in circumstances apart from those justifying deadly force.84 Trump Administration officials did not appoint a racially or class-diverse commission to study the issue. Prior to the order, the administration did not engage race-class subordinated individuals or groups in a meaningful way. Instead, the Administration panicked in the summer of 2020 in the face of intense public scrutiny of police abuse and growing hostility toward the politicians willfully ignoring the problem. Within the same summer, four states banned police use of the chokehold in all circumstances and three others did so with an exception provided for circumstances in which state law gave the officer authority to use deadly force.85 The reform community should embrace this sort of hasty response by the federal government and state governments and account for the reach of the associated equity-enhancing policy decisions. To think that reformers should reject or even question these policies on process grounds, based on the notion that such regulation should be left to municipalities or internal microlocal policymaking bodies, seems misguided. To be sure, no one in the reform community has argued otherwise, yet this would seem to be the requisite reform position if a noninstrumentalist, community-control model became the hallmark of legitimate crime-policymaking process.
To agree with this assessment is to endorse an instrumental rather than an ideological or moral approach to crime-policymaking process. Reformers, whether they be activists or scholars, need not enlist the race-class subordinated in policy deliberations as a precondition for enthusiastically backing such reforms. However unseemly, policy reform must take priority over policymaking-process reform. Accordingly, crime-policy reform advocates should take full advantage of the fleeting opportunities for crime-policy reform such as those arising in the wake of George Floyd’s death. They should not feel encumbered by a parallel movement for a more inclusive crime-policymaking process. In sum, when presented with an opportunity window such as that opened in the summer of 2020, there is little benefit in insisting that such policy changes accord with the principle of “community control” of police.
It would be hard to identify a successful policy movement that operated within such narrow strategic parameters. The immigrant-sanctuary movement targeted states and municipalities, securing policies at both levels that restricted police participation in immigration enforcement.86 Deliberation with immigrants may have been instrumental to this process, but in my studies of the immigrant-sanctuary movement I have seen little evidence of concern among sanctuary policy advocates regarding the degree to which local immigrants had been consulted regarding the prospect of limiting local police participation in immigration enforcement.
The gun-rights and pro-life movements, two wildly successful right-wing social movements of the past several decades, appear to greedily take policy wins however and whenever they can get them.87 There is little evidence that either places emphasis on equitable process.88 Granted, the crime-policy reform movement is driven by a contrasting set of values. A commitment to social equality lies as the heart of the movement and such a commitment dictates a certain regard for equitable policymaking process. However, the immediate question is not whether equitable process is a worthwhile value in the criminal-justice reform movement, but whether it should be considered of equal or greater value than what will in all likelihood be a generations-long cultural battle in pursuit of crime policy transformation. The specific worry is that certain top-down policymaking processes are stigmatized and dismissed by reform advocates, not because of their ineffectiveness, but rather because they have been preemptively labeled as fundamentally unfair.
Given that the project of inclusive crime policymaking and that of equitable crime policy have fallen into tension in the past and will inevitably do so in the future, the criminal-justice reform movement should clearly and unapologetically establish one of the two as the priority. For instance, in the debate regarding the relative utility of democratic and administrative processes in crime-policy reform,89 reformers would do well to avoid the notion of fundamentally unfair processes. It is at least plausible that expert-level crime policy rulemaking (in the interest of reform) may be necessary in a system in which neighborhoods, cities, and even counties will never be entirely insulated from city, county, state, and federal rulemaking, and will thus remain susceptible to the prospect of punitive populism arising within any one of an array of higher-order bounded publics. In this sense, the viability of democratic localism as a process of crime-policy reform must be assessed within the larger framework of federalist governance.
All of this is to say that despite the ostensibly egalitarian quality of community-based policymaking processes, there is a distinct benefit to being agnostic on the question of fair process, and in expressly making the pursuit of fair policymaking process subordinate to the pursuit of fair policy. If reformers establish the specific process of crime policymaking (and, likewise, power-shifting as an incorporated subtype) as a second-order concern, their efforts will not be weighed down by any one normative theory of fair process. If power-shifting can help to alleviate the criminal-justice crisis, we should power-shift. But if reform must be achieved by pulling one or several of the levers of crime policy rulemaking antithetical to power-shifting, we should pull the alternative levers. If the priority is to address penal outcomes, the lodestar among crime-policy reformation advocates must be transformative crime policy rather than the narrow pursuit of any one of the several normative models of egalitarian crime-policymaking process.
Reformers principally invested in transforming crime policy can acknowledge the values intrinsic to democratic approaches to public governance (power-shifting now being prominent among them) without also making a precommitment to equity in crime-policymaking process. The more effective play is to subscribe to crime-policymaking processes instrumentally. Crime policy change, be it reform or revolution, should stand as the first-order normative principle, and the means by which such reforms come to be established, a distant second.
Associate Professor, Washington University in St. Louis, School of Law. Thanks to Rabia Belt, Jessica Eaglin, Daniel Epps, Chad Flanders, Eisha Jain, Peter Joy, Andrea Katz, Elizabeth Katz, Benjamin Levin, Greg Magarian, Alexandra Natapoff, Shaun Ossei-Owusu, Brian Tamanaha, and Guy-Uriel Charles and the Washington University School of Law Workshop Series for helpful feedback on the various drafts of this Response.