Symposium Articles 
EDWARD L. RUBIN & MALCOLM M. FEELEY* 
Criminal Justice Through 
Management: From Police, 
Prosecutors, Courts, and Prisons to a 
Modern Administrative Agency 
Introduction ....................................................................................... 262 
I. How We Got Here .................................................................. 272 
II. Where We Are ........................................................................ 279 
A. Detection: Police ............................................................. 281 
B. Disposition: Sheriffs, Prosecutors, and Judges ............... 284 
C. Punishment: Prisons, Probation, and Parole ................... 292 
III. What We Have Tried ............................................................. 297 
A. Constitutionalism ............................................................ 299 
B. Professionalism ............................................................... 305 
C. Rationalization ................................................................ 309 
IV. Where We Should Go ............................................................ 313 
* Edward Rubin is University Professor of Law and Political Science at Vanderbilt
University. Malcolm Feeley is the Claire Sanders Clements Professor Emeritus at the 
School of Law, University of California at Berkeley.  
A version of this paper was presented at the Criminal Justice Roundtable at Vanderbilt 
University in November 2020. We want to thank Jed Rakoff for his commentary, 
Christopher Slobogin for organizing the Roundtable, and the other participants for their 
comments: Stephanos Bibas, Mark Fondacaro, Irene Joe, Issa Kohler-Hausmann, Ben 
Levin, Sara Mayeux, Lisa Miller, Calvin Morrill, and John Pfaff. We would also like to 
thank Hadar Dancig-Rosenberg, Robert Kagan, Christopher Kutz, David Nelken, and 
Amnon Reichman for helpful comments on later drafts of this paper. Not everyone agrees 
with our argument, but their responses were both helpful and encouraging. 
[261] 
262 OREGON LAW REVIEW [Vol. 100, 261 
A. Creating an Agency ........................................................ 314 
B. Reducing Coercion ......................................................... 323 
C. Focusing on Prevention .................................................. 334 
D. Decentering Criminal Trials ........................................... 341 
V. Response to Objections .......................................................... 346 
Conclusion ........................................................................................ 354 
INTRODUCTION 
In  1941, responding to a wide-ranging effort to enact legislation that would constrain the operation of New Deal agencies, Franklin 
Roosevelt commissioned the Attorney General to produce a report on 
the role and importance of administrative governance.1 The report 
stated, “If administrative agencies did not exist in the Federal 
Government, Congress would be limited to a technique of legislation 
primarily designed to correct evils after they have arisen rather than to 
prevent them from arising. The criminal law, of course, operates in 
this after-the-event fashion.”2 
This familiar distinction would appear to leave our criminal law 
system mired in the premodern mindset this Report’s casual “of 
course” implies. It suggests that we continue to conceive of the 
system by which we combat crime as after-the-fact punishment of 
individual wrongdoers. Following the quoted language, the Attorney 
General’s Report continued: “Congress declares a given act to be a 
crime. The mere declaration may act as a deterrent. But if it fails to do 
so the courts can only punish the wrong-doer; they cannot wipe out or 
make good the wrong.”3 
Actually, it is generally recognized that punishing people after they 
have committed crimes is a second-best response. The preferable 
approach—and here we can add a more convincing “of course”—is to 
do what the Attorney General said that administrative agencies do in 
their assigned areas, prevent crime from occurring in the first place. 
Not only do we know this, but it has generally been the purpose of the 
Western World’s criminal justice systems since their inception. 
Contrary to the quote, prevention, or more familiarly deterrence, is 
1 ATT’Y GEN.’S COMM. ON ADMIN. PROC., DEP’T OF JUST., COMMITTEE’S REPORT 
(1941), http://www.regulationwriters.com/downloads/apa1941.pdf [https://perma.cc/L7MA 
-4XQQ].
2 Id. at 13.
3 Id. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 263 
Courts, and Prisons to a Modern Administrative Agency
the norm and not the exception.4 In England, efforts to address the 
problem of crime by preventive means can be traced back to the 
Middle Ages,5 and readily identified for succeeding centuries as 
well.6 England’s incipient police forces of the late eighteenth century 
were established with prevention in mind,7 as were the first modern 
forces that followed.8 The juvenile justice was based on a social work 
perspective in order to prevent anticipated delinquency.9 Most of the 
rationales for punishment, including general deterrence, special 
deterrence, incapacitation and rehabilitation, are framed in terms of 
prevention, with only strict retributivists willing to dispense with this 
consideration.10 
The feature of our criminal justice system that distinguishes it from 
regulatory law is not its lack of concern about prevention but its 
4 See Markus D Dubber, Preventive Justice: The Quest for Principle, in PREVENTION 
AND THE LIMITS OF THE CRIMINAL LAW 47 (Andrew Ashworth et al. eds., 2013). 
5 CLIVE EMSLEY, A SHORT HISTORY OF POLICE AND POLICING 39 (2021) (Statute of 
Winchester, promulgated by King Edward I in 1285, provided that all foliage along the 
roads between market towns be cut back 200 feet on both sides of road to eliminate hiding 
places for highway robbers.).  
6 Joel B. Samaha, The Recognizance in Elizabethan Law Enforcement, 25 AM. J. 
LEGAL HIST. 189 (1981) (Fifteenth century magistrates routinely imposed sureties in cases 
of petty crimes to keep the peace or for good behavior in order to deter those charged with 
criminal violations from further antisocial behavior.). Family or friends, not the accused, 
would have to post £ 40 bonds, with the possibility of forfeiture acting as a means of 
deterrence. This practice was imported to the American colonies and used extensively well 
into the late nineteenth century. See JULIUS GOEBEL JR. & T. RAYMOND NAUGHTON, LAW 
ENFORCEMENT IN COLONIAL NEW YORK: A STUDY IN CRIMINAL PROCEDURE (1664-
1776) (1944). 
7 See DAVID J. COX, A CERTAIN SHARE OF LOW CUNNING: A HISTORY OF THE BOW 
STREET RUNNERS, 1792-1839, at 26–38 (2010) (Novelist Henry Fielding established the 
Bow Street Runners as a means of reducing crime through their deterrent effect although 
they were popularly characterized as an efficient group for catching criminals.); P. 
COLQUHOUN, A TREATISE ON THE COMMERCE AND POLICE OF THE RIVER THAMES 
(1800) (justifying the creation of the Thames River Marine Police in 1798 on the grounds 
that for an investment of 4,200 pounds, they prevented the theft of 122,000 pounds worth 
of cargo from ships docking in London). 
8 For an extended discussion of the preventive functions of the first modern police in 
Britain (the London Metropolitan Police), see ANDREW ASHWORTH & LUCIA ZEDNER, 
PREVENTIVE JUSTICE 27–44 (2014); CLIVE EMSLEY, THE ENGLISH POLICE 24–42 (1991); 
W.L. MELVILLE LEE, A HISTORY OF POLICE IN ENGLAND 155–75 (1901).
9 See BARRY C. FELD, THE EVOLUTION OF THE JUVENILE COURT: RACE, POLITICS,
AND THE CRIMINALIZING OF JUVENILE JUSTICE 19–69 (2017); ANTHONY M. PLATT, THE 
CHILD SAVERS: THE INVENTION OF DELINQUENCY (1969); FRANKLIN E. ZIMRING, 
AMERICAN JUVENILE JUSTICE 33–50 (2005). 
10 See ASHWORTH & ZEDNER, supra note 8, at 17–19; Frederick Schauer, The Ubiquity 
of Prevention, in PREVENTION AND THE LIMITS OF THE CRIMINAL LAW, supra note 4, at 10.  
264 OREGON LAW REVIEW [Vol. 100, 261 
institutional fragmentation. The Weberian administrative agency is a 
product of the modern era,11 the Nineteenth Century at the earliest 
and the Twentieth Century most often.12 Regulatory regimes designed 
to protect citizens from threats generated by the industrial and 
commercial character of modern society almost always rely on such 
agencies to implement the desired public policies. Hierarchically 
organized agencies address the dangers that factory and office work 
pose for citizens in their capacity as employees, the dangers that 
remotely manufactured and mass marketed products pose for citizens 
in their capacity as consumers, and the dangers that industrial 
production and machine-based transportation pose for citizens as 
denizens of the environment.13  
Crime is a much older problem, perhaps dating back to the very 
origins of civilization, and certainly back before the advent of 
administrative agencies. Its venerability, combined with the visceral 
emotions it often elicits, produced efforts to address it that were ad 
hoc, particularized, and sometimes ill-conceived. This was clearly 
true for England, the country from which our criminal justice system 
is most directly derived. Communities and businesses organized 
patrols and hired watchmen to protect particularized locations or 
assets, a function gradually taken over or displaced by public 
11 See MAX WEBER, ECONOMY AND SOCIETY 215–23, 958–63 (Guenther Roth & 
Claus Wittich eds., 1978) (classic definition of an administrative or bureaucratic agency). 
12 See generally NORMAN CHESTER, THE ENGLISH ADMINISTRATIVE SYSTEM: 1780–
1870 (1981); FRITZ MORSTEIN MARX, THE ADMINISTRATIVE STATE: AN INTRODUCTION 
TO BUREAUCRACY (1957); WOLFGANG J. MOMMSEN, THE AGE OF CAPITALISM AND 
BUREAUCRACY (Berghahn Books 2021) (1974); HENRY PARRIS, CONSTITUTIONAL 
BUREAUCRACY (1969). 
13 These were leading regulatory initiatives of the Progressive and the Great Society 
Eras. See generally JOHN WHITECLAY CHAMBERS II, THE TYRANNY OF CHANGE: 
AMERICA IN THE PROGRESSIVE ERA, 1890–1920 (1992); ERIC F. GOLDMAN, 
RENDEZVOUS WITH DESTINY: A HISTORY OF MODERN AMERICAN REFORM (1952); 
CHARLES HALVERSON, VALUING CLEAN AIR: THE EPA AND THE ECONOMICS OF 
ENVIRONMENTAL PROTECTION (2021); RICHARD HOFSTADTER, THE AGE OF REFORM: 
FROM BRYAN TO FDR (1955); RICHARD J. LAZARUS, THE MAKING OF ENVIRONMENTAL 
LAW (2004); MICHAEL R. LEMOV, CAR SAFETY WARS: ONE HUNDRED YEARS OF 
TECHNOLOGY, POLITICS, AND DEATH (2015); JERRY L. MASHAW & DAVID L. HARFST, 
THE STRUGGLE FOR AUTO SAFETY (1990); MICHAEL MCGERR, A FIERCE DISCONTENT: 
THE RISE AND FALL OF THE PROGRESSIVE MOVEMENT IN AMERICA (2003): NELL IRVIN 
PAINTER, STANDING AT ARMAGEDDON: THE UNITED STATES, 1877-1919 (1987); 
THOMAS R. WELLOCK, PRESERVING THE NATION: THE CONSERVATION AND 
ENVIRONMENTAL MOVEMENTS 1870–2000 (2007); ROBERT H. WIEBE, THE SEARCH FOR 
ORDER, 1877–1920 (1967); DANIEL P. CARPENTER, THE FORGING OF BUREAUCRATIC 
AUTONOMY: REPUTATIONS, NETWORKS, AND POLICY INNOVATION IN EXECUTIVE 
AGENCIES, 1862 – 1928 (2001).  
2022] Criminal Justice Through Management: From Police, Prosecutors, 265 
Courts, and Prisons to a Modern Administrative Agency
authorities at different levels.14 Prosecution for crimes remained a 
private matter in many cases until the eighteenth century, when it was 
gradually assigned to public officials who were organized into a 
proto-agency.15 Courts were established by almost every authority to 
resolve disputes within their purviews, whether civil or criminal. In 
medieval England, there were, in addition to the king’s court (curia 
regis), honorial courts, manorial courts, shire courts, hundred courts, 
vill courts, borough courts, and ecclesiastical courts for bishops, 
archbishops and archdeacons.16 As time went on, jurisdiction over 
criminal offenses was concentrated in the royal courts, although still 
on different levels.17 Harsh punishments were meted out in highly 
theatrical public settings to deter potential wrongdoers18 but gradually 
abolished due to their tendency to generate disorder and growing 
distaste for their savagery. They were replaced by transportation (i.e., 
exile), which was in turn abolished,19 and confinement in public and 
private facilities that were casually and often corruptly managed.20 
Prisons were established in the nineteenth century in reaction to the 
excessive and erratic imposition of the death penalty and the newly 
developed aversion to torture and mutilation;21 but in some sense, 
14 EMSLEY, supra note 8, at 8–42; LEE, supra note 8. See EMSLEY, supra note 5, at 78–
132 (discussing Europe generally). 
15 JOHN H. LANGBEIN, THE ORIGINS OF ADVERSARY CRIMINAL TRIAL 106–47 (2003). 
16 RICHARD MORTIMER, ANGEVIN ENGLAND, 1154–1258, at 51–63 (1994); W.L. 
WARREN, HENRY II, at 317–20 (1973). 
17 See generally JOHN BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 44–59 
(5th ed. 2019); ALAN HARDING, THE LAW COURTS OF MEDIEVAL ENGLAND (1973); 
ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 147–65 (1986). 
18 MICHEL FOUCAULT, DISCIPLINE & PUNISH 3–69 (Alan Sheridan, trans., 1977); 
Douglas Hay, Property, Authority and the Criminal Law, in ALBION’S FATAL TREE 17 
(Douglas Hay et al. eds., 1975). 
19 See generally HILARY M. CAREY, EMPIRE OF HELL: RELIGION AND THE CAMPAIGN 
TO END CONVICT TRANSPORTATION IN THE BRITISH EMPIRE, 1788–1875 (2019); ROBERT 
HUGHES, THE FATAL SHORE 158–202 (1987); C.M.H. Clark, The Origins of the Convicts 
Transported to Eastern Australia, 1787-1852, 7 HIST. STUD. AUSTL. & N.Z. 314 (1956). 
20 JOHN BENDER, IMAGING THE PENITENTIARY: FICTION AND THE ARCHITECTURE OF 
MIND IN EIGHTEENTH-CENTURY ENGLAND 43–61 (1987) (describing English jails, 
emphasizing Defoe’s account in Moll Flanders); DAVID J. ROTHMAN, THE DISCOVERY OF 
THE ASYLUM: SOCIAL ORDER AND DISORDER IN THE NEW REPUBLIC 30–78 (Revised ed. 
1990) (describing jails and other facilities in Colonial America and the first years of the 
Republic). See PETER SPIERENBURG, THE PRISON EXPERIENCE: DISCIPLINARY 
INSTITUTIONS AND THEIR INMATES IN EARLY MODERN EUROPE 41–134 (Amsterdam 
University Press ed. 2007) (describing carceral facilities in Continental Europe and their 
gradual evolution toward modern prisons). 
21 See FOUCAULT, supra note 18, at 3–131 (describing how prison derived from earlier 
forms of investigation and punishment, and was used as a means of social control); ADAM 
266 OREGON LAW REVIEW [Vol. 100, 261 
they were lineal descendants of Medieval jails and dungeons and 
continued to be operated by several different levels of government.22 
It was this welter of distinct institutions—local police, county 
police, state police, public prosecutors, public defenders, state courts, 
local courts, county jails and state prisons—that we inherited from 
England and then combined with still others, such as specialized 
police forces, juvenile courts, and hospitals for the criminally insane. 
The consequences at the time were inefficiency and ineffectiveness. 
The continued American preference for localism has further 
exacerbated this problem. In 2016, among the fifty states, there were 
12,261 local police departments, ninety-five percent of which had 
fewer than 100 sworn officers and equivalently few “civilian” 
employees.23 While some of our many separate criminal justice 
institutions, particularly the larger ones, have made various attempts 
to reform or modernize their functions, most such efforts are poorly 
conceived and ineffectively implemented. In the last 200 to 1,000 
years, there has been virtually no effort to either change this 
antediluvian structure itself or free ourselves from a set of 
institutional arrangements that were developed in a foreign country 
(from which we rebelled). 
Our criminal justice system is now widely recognized as one of the 
most serious problems confronting our nation, perhaps, at this 
juncture, more deleterious to our well-being than any issue of foreign 
affairs or even economics. The behavior of police departments has 
JAY HIRSCH, THE RISE OF THE PENITENTIARY: PRISONS AND PUNISHMENT IN EARLY 
AMERICA (1992) (arguing prisons were primarily a reaction to social changes in the Early 
Republic); ROTHMAN, supra note 20 (same). These accounts all express skepticism about 
the idea that penitentiaries developed to end the cruelty and savagery of premodern 
punishment. Evidence that a desire to find more humane modes of punishment was in fact 
an important motivation in the creation of penitentiaries comes from the widespread 
circulation of Cesare Beccaria’s book, On Crimes and Punishments. See CESARE 
BECCARIA, ON CRIMES AND PUNISHMENTS AND OTHER WRITINGS (Richard Bellamy, ed., 
Richard Davies, trans., 1995). See also BENDER, supra note 20 (The novel itself indicates 
a greater concern for the individual actor, and many contemporary novels argue openly for 
a more humane approach.). It would seem, however, that whatever the desire for more 
reliable and humane punishment lay behind the creation of the penitentiary, the practical 
demands on underfunded and under-supervised prison wardens led to serious abuses. 
22 FOUCAULT, supra note 18, at 135–69; ROTHMAN, supra note 20, at 79–108. 
23 BUREAU OF JUST. STATS., U.S. DEP’T OF JUST., LOCAL POLICE DEPARTMENTS, 
 2016: PERSONNEL 2–3 (2019, rev. 2021), https://www.bjs.gov/content/pub/pdf/lpd16p.pdf 
[https://perma.cc/U5MW-7JBZ]. In addition to local police departments, there were 3,061 
other “general purpose” law enforcement agencies in the United States, including sheriffs’ 
offices, state police and highway patrols. This total (15,322) does not include special 
purpose agencies, such as sheriffs’ offices with only jail and court duties. Id. at 1–2.  
2022] Criminal Justice Through Management: From Police, Prosecutors, 267 
Courts, and Prisons to a Modern Administrative Agency
resulted in extensive human rights abuses and alienated inner city 
communities, conveying to tens of millions of Americans the message 
that they live in a hostile and ill-governed nation. Our criminal courts, 
particularly at the lower levels, are a continual refutation of every 
principle we claim for them—opaque, chaotic places where, as one of 
us has written, the process is the punishment.24 Mass incarceration 
has filled our prisons at a rate, relative to population, five times higher 
than England and its other settler colonies, and ten times higher than 
many of our other sister democracies.25 Racism, classism, capitalism, 
authoritarianism, social control, political entrepreneurship, public 
employee unions, the media and a host of other factors have been 
blamed for the disastrous performance of our police, prosecutors, 
courts and prisons.26 There is good evidence in support of each of 
these hypotheses but underlying them is the incoherence of the 
system’s basic structure—an incoherence that intensifies these other 
factors to create a truly toxic brew.  
24 MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A 
LOWER CRIMINAL COURT (1992). 
25 One in 31: The Long Reach of American Corrections, PEW CHARITABLE TR. (Mar. 2, 
2009), https://www.pewtrusts.org/en/research-and-analysis/reports/2009/03/02/one-in-31 
-the-long-reach-of-american-corrections [https://perma.cc/G4JQ-7AYD]; Criminal Justice
Facts, SENT’G PROJECT (2019), https://www.sentencingproject.org/criminal-justice-facts/
[https://perma.cc/7EPJ-VMNV]. The U.S. incarceration rate (prison and jail) in the United
States is (as of 2021) 664 per 100,000 inhabitants, the highest in the world. Only a few
small, troubled nations—El Salvador, Ruanda, Turkmenistan and Cuba—are even close,
with above 500 per 100,000. Our rate is about twice that of Russia, four times that of
Australia, six times that of Canada, and nearly ten times that of Germany. See States of
Incarceration: The Global Context 2021, PRISON POL’Y INITIATIVE (Sept. 2021),
https://www.prisonpolicy.org/global/2021.html [https://perma.cc/A8H8-2DZT].
26 See, e.g., MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION  
IN THE AGE OF COLORBLINDNESS (2010) (racism); RACHEL ELISE BARKOW, PRISONERS 
OF POLITICS: BREAKING THE CYCLE OF MASS INCARCERATION (2019) (political 
entrepreneurship); KATHERINE BECKETT & THEODORE SASSON, THE POLITICS OF 
INJUSTICE: CRIME AND PUNISHMENT IN AMERICA (2004) (political entrepreneurship); 
RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, AND OPPOSITION 
IN GLOBALIZING CALIFORNIA (2007) (capitalism and public employee unions); JOHN F. 
PFAFF, LOCKED IN: THE TRUE CAUSES OF MASS INCARCERATION AND HOW TO ACHIEVE 
REAL REFORM (2017) (uncontrolled decisions by public prosecutors); JED S. RAKOFF, 
WHY THE INNOCENT PLEAD GUILTY AND THE GUILTY GO FREE (2021) (classism); 
JEFFREY REIMAN, THE RICH GET RICHER AND THE POOR GET PRISON: IDEOLOGY, CLASS, 
AND CRIMINAL JUSTICE (7th ed. 2004) (classism); Jonathan Simon, GOVERNING THROUGH 
CRIME: HOW THE WAR ON CRIME TRANSFORMED AMERICAN DEMOCRACY AND 
CREATED A CULTURE OF FEAR (2007) (discussing social control and authoritarianism); 
RAY SURETTE, MEDIA, CRIME AND CRIMINAL JUSTICE: IMAGES, REALITIES, AND 
POLICIES (5th ed. 2015) (media influence). 
268 OREGON LAW REVIEW [Vol. 100, 261 
To some extent, the dysfunctional fragmentation of the system can 
be attributed to American federalism, whose vestigial character we 
have both written about at length.27 But even if we ignore or excuse 
this particular inheritance, we can observe the same level of 
institutional incoherence within each of our states. The uncoordinated 
multiplicity of institutions in the American system of criminal law can 
be described, as above, without reference to the admittedly ferocious 
complexities of federal-state relations. Fragmentation is inherent—
indeed built-in and celebrated—in the adversary system’s animating 
theory. This is somewhat akin to the theory of the market: separate 
parties pursue their own interests, and social utility—here, justice—
emerges as a by-product.28 Given the compounding challenges of 
cost, racism, and the imbalance of resources, one might have expected 
that a declaration of market failure, at least for the criminal process, 
would have been issued long ago, and that it would have been 
replaced by regulatory regime.29 Roosevelt’s Attorney General was 
not quite correct about the purpose of our criminal justice system, but 
he was spot on in concluding that this system, so outdated in its 
origins and slovenly in its continuation, could not implement a 
modern, administrative policy of crime prevention.  
A number of scholars have noted that the criminal justice, despite 
these antediluvian features, is in a fact a regulatory system, and have 
recommended that the discipline and restraints of administrative law 
be applied to its various components.30 In fact, the observation dates 
27 See MALCOLM M. FEELEY & EDWARD RUBIN, FEDERALISM: POLITICAL IDENTITY 
& TRAGIC COMPROMISE (2008); MALCOLM M. FEELEY & EDWARD L. RUBIN, JUDICIAL 
POLICY MAKING AND THE MODERN STATE: HOW THE COURTS REFORMED AMERICA’S 
PRISONS 149–203 (1998) [hereinafter JUDICIAL POLICY MAKING]; Edward L. Rubin & 
Malcolm Feeley, Federalism: Some Notes on a National Neurosis, 41 UCLA L. REV. 903 
(1994); Edward L. Rubin, Puppy Federalism and the Blessings of America, 574 ANNALS 
AM. ACAD. POL & SOC. SCI. 37 (2001); Edward L. Rubin, The Fundamentality and 
Irrelevance of Federalism, 13 GA. ST. U. L. REV. 1009 (1997). 
28 See, e.g., EMILIO BARUCCI & CLAUDIO FONTANA, FINANCIAL MARKETS THEORY: 
EQUILIBRIUM, EFFICIENCY AND INFORMATION 1–12 (2017); ALLEN BUCHANAN, ETHICS, 
EFFICIENCY, AND THE MARKET 14–19, 54–64 (1985); Richard A. Posner, Law and 
Economics Is Moral, 24 VAL. U. L. REV. 163 (1990). 
29 See ANDREI SCHLEIFER, THE FAILURE OF JUDGES AND THE RISE OF REGULATORS 
(2012) (noting the long-term shift from courts to regulatory agencies because agencies are 
both more effective and more efficient).  
30 See, e.g., JOHN BRAITHWAITE, RESTORATIVE JUSTICE & RESPONSIVE REGULATION 
(2002); VINCENT CHIAO, CRIMINAL LAW IN THE AGE OF THE ADMINISTRATIVE STATE 
(2019); BARKOW, supra note 26; Rachel E. Barkow, Criminal Law as Regulation, 8 N.Y.U. 
J.L. & LIBERTY 316 (2014); Rachel E. Barkow, Administering Crime, 52 UCLA L. REV.
715 (2005) [hereinafter Administering Crime]; Dan M. Kahan, Is Chevron Relevant to
Federal Criminal Law?, 110 HARV. L. REV. 469 (1996); Gerard E. Lynch, Our
2022] Criminal Justice Through Management: From Police, Prosecutors, 269 
Courts, and Prisons to a Modern Administrative Agency
at least as far back as the work of Frank Remington in the 1960s.31 
While we agree with this perspective, and see such reforms as 
generally beneficial, we propose a related but somewhat different 
solution. Administrative agencies are the way in which our society 
governs itself in this era of High Modernity. As already noted,32 they 
are the basic means by which our society combats the problems that 
confront us. Instead of viewing the regulatory nature of the criminal 
justice system as a means of abuse, or an opportunity for imposing 
external control, we view it as a reality that reveals a blueprint for 
comprehensive and genuine reform.  
We recommend that the criminal justice system of each state be 
redesigned and restructured as a single administrative agency. That 
agency should manage the components of the system in accordance 
with standard administrative practices of planning, resource 
management, staffing and supervision.33 It should do so with the 
usual administrative goals of minimizing coercion and maximizing 
prevention.34 Trials should be relegated to the same role that they 
occupy in other administrative programs, that is, as a last resort for 
the agency to use in its effort to achieve its goals and for individuals 
to use if they object to the way the agency has treated them.35 We are 
not suggesting that the protections required by the Constitution in a 
criminal case be in any way diminished. But most criminal defendants 
either cannot or choose not to avail themselves of these protections; 
fewer than one in twenty cases go to trial,36 and the disciplining effect 
Administrative System of Criminal Justice, 66 FORDHAM L. REV. 2117 (1998); Daniel 
Richman, Prosecutors and Their Agents, Agents and their Prosecutors, 103 COLUM. L. 
REV. 749 (2003); Christopher Slobogin, Policing as Administration, 165 U. PA. L. REV. 91 
(2016); Ronald F. Wright, Sentencers, Bureaucrats, and the Administrative Law Perspective 
on the Federal Sentencing Commission, 79 CALIF. L. REV. 1 (1991). 
31 Frank J. Remington, The Role of Police in a Democratic Society, 56 J. CRIM. L. 
CRIMINOLOGY & POLICE SCI. 361 (1965).  
32 See supra pp. 266–67 and note 13. 
33 See infra pp. 314–23. 
34 See infra pp. 323–34. 
35 See infra pp. 330–31. 
36 BUREAU OF JUST. STATS., U.S. DEP’T OF JUST., FEDERAL JUSTICE STATISTICS, 2016 
–STATISTICAL TABLES 21–22 (2020) (finding ninety-seven percent of charges not
dismissed by the government terminated by plea bargain); LINDSEY DEVERS, BUREAU OF
JUST. ASSISTANCE, U.S. DEP’T OF JUST., PLEA AND CHARGE BARGAINING 1 (Jan. 24,
2011); RAM SUBRAMANIAN ET AL., VERA INST. OF JUST., IN THE SHADOWS: A REVIEW OF
THE RESEARCH ON PLEA BARGAINING 1 (2020) (stating “most criminal cases that result in
conviction—97 percent in large urban state courts in 2009, and 90 percent in federal court
in 2014—are adjudicated through guilty pleas. Of these, researchers estimate that more
270 OREGON LAW REVIEW [Vol. 100, 261 
that trial protections are said to exercise over other elements of the 
system are more revered than real.37 More importantly, all regulatory 
agencies provide due process for anyone they sanction,38 and the 
additional features of criminal as opposed to civil process can be 
provided in the criminal justice system without altering the system’s 
administrative character.  
Of course, many criticisms have been leveled against administrative 
agencies, ranging from gross inefficiency to overzealous bureaucracy, 
and we address some of them below. A recent “Manifesto,” signed 
by nineteen criminal law scholars, is premised on the notion that 
administrative government, or bureaucracy, is the basic source of 
injustice in our criminal justice system and should be replaced with 
the more “democratic” approach of community control.39 For the 
present, we simply reiterate that administrative agencies are our 
dominant mode of governance, the mechanism that we use for nearly 
than 90 percent are a result of plea bargaining. . . .”) (footnote omitted). See Stephanos 
Bibas, Judicial Fact-Finding and Sentence Enhancements in a World of Guilty Pleas, 110 
YALE L.J. 1097 (2001) (despite its many defects, plea bargaining cannot be banned from 
our criminal justice system); Douglas D. Guidorizzi, Should We Really “Ban” Plea 
Bargaining?: The Core Concerns of Plea Bargaining Critics, 47 EMORY L.J. 753 (1998) 
(same).  
37 See generally CARISSA BYRNE HESSICK, PUNISHMENT WITHOUT TRIAL: WHY PLEA 
BARGAINING IS A BAD DEAL (2021); RAKOFF, supra note 26; Alafair S. Burke, 
Prosecutorial Passion, Cognitive Bias, and Plea Bargaining, 91 MARQ. L. REV. 183 
(2007); Michael O. Finkelstein, A Statistical Analysis of Guilty Plea Practices in the 
Federal Courts, 89 HARV. L. REV. 293 (1975); Ronald F. Wright, Trial Distortion and the 
End of Innocence in Federal Criminal Justice, 154 U. PA. L. REV. 79 (2005). 
38 There has never been any doubt that criminal punishment cannot be imposed on a 
private person without criminal procedure protections, even if the impetus and evidence 
for that punishment is generated by an administrative agency. See Estep v. United States, 
327 U.S. 114 (1946) (striking down conviction for violation of the Selective Service Act 
on grounds that the facts supporting the conviction could not be definitively determined 
by an administrative agency). In Goldberg v. Kelly, 397 U.S. 254 (1970), due process 
protection at the civil level was extended to administrative action generally, based on the 
principle that statutory or administrative benefits were entitled to the same constitutional 
status as common law property. See Charles A. Reich, The New Property, 73 YALE L.J. 
733 (1964). See generally Edward L. Rubin, Due Process and the Administrative State, 72 
CALIF. L. REV. 1044 (1984) (general relevance of due process to all administrative 
actions). 
39 Joshua Kleinfeld, Manifesto of Democratic Criminal Justice, 111 NW. U. L. REV. 
1367 (2017). “[O]ne dimension of democracy is its character as an anti-bureaucratic force 
or (more modestly) as a counterweight to bureaucratic forces. This means that democratizers 
in the criminal justice context reverse Weber’s three core features of all democracy as 
such.” Id. at 1383. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 271 
Courts, and Prisons to a Modern Administrative Agency
all other government functions. They are, as Weber pointed out when 
this mode of governance was a full century younger, “escape-proof.”40  
We are aware that our recommendation for transformation of 
criminal justice will not be instituted by any American state in the 
foreseeable future. We offer this recommendation as a standard for 
assessment of the present system, a way to highlight its dysfunctions 
and suggest a direction for much-needed reform. It should be noted, 
however, that the proposal is not utopian or quixotic. A number of 
democratic countries have centralized ministries of justice that 
incorporate many of the practices that we recommend.41 And the 
historical trend line suggests that American government in general is 
moving toward administrative models.42  
Part I of this Article discusses the premodern attitudes that continue 
to control crime policy in the United States and have impeded the 
development of an administrative approach. Part II then describes the 
dysfunctional features that flow from these attitudes and the 
consequent fragmentation of the criminal justice system. In Part III, 
we briefly canvass some of the efforts to effect delimited institutional 
reforms in that system. Part IV presents the advantages of a 
comprehensive institutional reform that replaces the existing 
collection of separate, historically established components of the 
system with a comprehensive administrative agency. Finally, Part V 
briefly responds to objections that can be raised against the proposal 
we advance. 
40 WEBER, supra note 11, at 1381. “Bureaucracy is distinguished from other historical 
agencies of the modern rational order of life in that it is far more persistent and ‘escape-
proof. . . .’ [M]odern bureaucracy has one characteristic which makes its ‘escape-proof’ 
nature . . . definite: rational specialization and training.” Id. at 1401. This essay is a 
revision of newspaper articles written by Weber in 1917, censored at that time and 
published in revised form immediately after the War. See id. at xxxiii, civ–cv. Weber was 
no happier about the progress of bureaucratization than many contemporary critics, but 
with typical intellectual clarity and rigor, he recognized its inevitability. See REINHARD 
BENDIX, MAX WEBER 423–30, 458–59 (1960). 
41 Criminal justice in Western European countries has been bureaucratized since the 
development of the Rechtsstaat and has become even more so following World War II. See 
Martin Krygier, Rule of Law (and Rechtsstaat), in THE LEGAL DOCTRINES OF THE RULE 
OF LAW AND THE LEGAL STATE (RECHTSSTAAT) 45 (James R. Silkenat et al. eds., 2014); 
Paul Tiedemann, The Rechtsstaat-Principle in Germany: The Development from the 
Beginning Until Now, supra THE LEGAL DOCTRINES OF THE RULE OF LAW AND THE 
LEGAL STATE (RECHTSSTAAT), at 171. 
42 In fact, criminal justice administration may be the last area of public administration 
that has not been rationalized and placed under modern administration. See supra notes 
12–13 (citing sources). 
272 OREGON LAW REVIEW [Vol. 100, 261 
I 
HOW WE GOT HERE 
The institutional fragmentation of our criminal justice system is a 
product of its historical development, as already noted, but this 
premodern situation has been perpetuated by premodern attitudes that 
have persisted into the current era. Four such attitudes, or sets of 
attitudes, are particularly relevant to this discussion. The first is that 
criminal justice was entwined with the origins of government. Recent 
studies have confirmed Durkheim’s insight that the beginnings of 
civilization were neither economic nor defensive but sacerdotal.43 
One of its first manifestations, and thus one of the first manifestations 
of governmental power, was punishment for violations of the sacred.44 
Prohibitions against murder or theft were often consigned to private, 
retaliatory enforcement,45 but the ruling authority would punish those 
who blasphemed against the gods or desecrated a temple. In other 
words, punishment began as a way to establish social solidarity, to 
justify the existence of the society itself by reinforcing the principles 
it regarded as existentially foundational.46 Such punishment tended to 
be disproportionate to the actual harm; a minor violation of a religious 
ritual or precinct was viewed as a potentially catastrophic profanation. 
Traces of this ancient attitude remain in our willingness to punish 
people for mere violation of the law, such as recidivism statutes that 
43 ÉMILE DURKHEIM, THE ELEMENTARY FORMS OF RELIGIOUS LIFE (Carol Cosman 
trans., 2001). 
44 ÉMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY (Lewis A. Coser trans., 
1984). 
45 See MARC BLOCH, FEUDAL SOCIETY 125–30 (L.A. Manyon trans., 1961); JACOB 
BLACK-MICHAUD, FEUDING SOCIETIES (1980); WILLIAM IAN MILLER, BLOODTAKING 
AND PEACEMAKING: FEUD, LAW, AND SOCIETY IN SAGA ICELAND (1990); EDWARD L. 
RUBIN, SOUL, SELF, AND SOCIETY 40–48 (2015); Geoffrey G. Koziol, Monks, Feuds, and 
the Making of Peace in Eleventh-Century Flanders, in 14 HIST. REFLECTIONS 531 (1987). 
46 Plato discerned this development in the creation of the Greek polis and presents it in 
the interaction between the Athenian and his questioner in Laws, Book IX. See PLATO: 
COMPLETE WORKS 1318 (John M. Cooper ed., 1997). Plato’s speaker, the Athenian, 
begins his account of punishment by considering theft from a temple and prescribing the 
harshest penalties for this offense. He then proceeds to prescribe similar penalties for 
treason. Clinias, whom the Athenian is advising, asks whether the legislator should vary 
the penalties based on circumstances. At that point, the Athenian says “good question” and 
continues: “I have been walking in my sleep, and you have bumped into me and woken me 
up.” Id. at 1515. He then acknowledges that the “business of establishing a code of law has 
never been properly thought out.” Id. The Athenian’s analysis of a more refined code of 
punishment then follows, with Plato’s typical emphasis on knowledge of the good. Plato 
seems to make use of the dialogue form here to rethink his own intuitive understanding of 
how criminal law evolved, and, as usual, to invite the reader to do the same. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 273 
Courts, and Prisons to a Modern Administrative Agency
impose major sentence enhancements for relatively minor offenses.47 
Other areas of law that now seem equally important, specifically 
regulatory law such as worker safety law, consumer protection, and 
environmental law, are perceived as public policies that an existing 
society adopts to improve the lives of its citizens, not as constitutive 
of the society itself. As many observers have noted, violators of these 
laws are punished more mildly, even if they do more actual harm.48 
The second primordial belief regarding criminal law is that the 
harm that the law is trying to prevent is a direct assault on the rulers 
of society, a violation of the “king’s peace.”49 The perpetrators of 
47 Punishing repeat offenders more severely seems to violate our basic due process 
principles that a person can be punished only for the specific action that he or she is 
charged with. See Markus Dirk Dubber, Recidivist Statutes as Arational Punishment, 43 
BUFF. L. REV. 689 (1995); Robert Weisberg, Meanings and Measures of Recidivism, 87 S. 
CAL. L. REV. 785 (2014). On an instrumental basis, such as deterrence or rehabilitation, 
one would think that if imprisonment did not work with this particular offender, the state 
should try something else, rather than more of the same. The fact that the offender is being 
punished for violation of the law per se has become apparent with the current spate of such 
statutes, characterized as “three strikes and you’re out.” This formulation first appeared in 
Washington State in 1993. See Daniel W. Stiller, Initiative 593: Washington’s Voters Go 
Down Swinging, 30 GONZ. L. REV. 433 (1994). California’s version, CAL. PENAL CODE 
ANN. § 667 (West 2002), is probably the best known and most severe. See FRANKLIN E. 
ZIMRING ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN 
CALIFORNIA (2001). In Lockyer v. Andrade, 538 U.S. 63 (2003), the Supreme Court 
upheld a life sentence for military veteran with three children who was convicted of 
shoplifting nine videotapes and fell under the California three strikes provision due to two 
previous, nonviolent offenses. See infra pp. 299–305 (discussing failure of 
constitutionalism as a reform strategy). It is worth noting that the cutesy language of these 
statutes tends to minimize the brutal reality that they destroy a person’s life as punishment 
for a minor offense. The language is also inaccurate; a player who incurs three strikes is 
not banned from baseball; instead, he gets to try again no more than four innings later.  
48 See MATTHEW CLAIR, PRIVILEGE AND PUNISHMENT: HOW RACE AND CLASS 
MATTER IN CRIMINAL COURT (2020); RAKOFF, supra note 26; REIMAN, supra note 26. 
49 See MARCUS DIRK DUBBER, THE POLICE POWER: PATRIARCHY AND THE 
FOUNDATIONS OF AMERICAN GOVERNMENT 3–46 (2005); EMSLEY, supra note 5, at 36–
40; FOUCAULT, supra note 18, at 32–69. The idea that crime is an offense against the 
sovereign, rather than merely against the victim, may seem natural to us, but it represents a 
specific development in Western society. During the Early Middle Ages, crime tended to 
be regarded as a private offense, to be dealt with by retaliatory violence. See RUBIN, supra 
note 45, at 28–54. In England, the shift to treating crime as an offense against the king 
began at the end of the Anglo-Saxon period. See BRUCE R. O’BRIEN, GOD’S PEACE AND 
KING’S PEACE: THE LAWS OF EDWARD THE CONFESSOR 62–104 (1999); John 
Braithwaite, Restorative Justice, in CRIME: CRITICAL CONCEPTS IN SOCIOLOGY 230 
(Philip Bean ed., 2002). When the Normans brought trial by combat to England, it became 
a vehicle for transforming the private feud into a judicially regulated process, with the king 
or his constable presiding (at least in important cases). See GEORGE NEILSON, TRIAL BY 
COMBAT (1890). The trend reached its fulfillment when King Henry II created the 
common law of England in the late twelfth century by providing that royal justices would 
274 OREGON LAW REVIEW [Vol. 100, 261 
such violations are thus perceived as virtually insurrectionists, and 
thus deserving of harsh punishment by virtue of the violation itself. 
This attitude is closely related to the first, but distinguishable on the 
ground that it is secular, and thus—incorrectly—regarded as being 
more rational.50 It leads to the image of ordinary criminals as “super-
predators,”51 to the treatment of juvenile offenders as adults,52 and to 
inordinately harsh sentences for repeat offenders.53 Again, there is a 
striking contrast with regulatory law, which is seen as a response to a 
prevailing condition that produces undesirable consequences. The 
condition can be wrongful action that overlaps with norm violation, 
such as maintaining dangerous conditions in a factory, but it can also 
take over the shire courts to hear cases initiated by royal writs (novel disseisin or mort 
d’ancestor). See MORTIMER, supra note 16, at 51–63; WARREN, supra note 16, at 307–61.  
50 See JÜRGEN HABERMAS, THE THEORY OF COMMUNICATIVE ACTION: VOLUME 1: 
REASON AND THE RATIONALIZATION OF SOCIETY 8–74 (Thomas McCarthy trans., 1984). 
51 WILLIAM BENNETT ET AL., BODY COUNT: MORAL POVERTY. . . AND HOW TO WIN 
AMERICA’S WAR AGAINST CRIME AND DRUGS 27 (1996) (describing super-predators as 
“radically impulsive, brutally remorseless youngsters . . . who murder, assault, rape, rob, 
burglarize, deal deadly drugs, join gun-toting gangs, and create serious communal 
disorders”). See also John DiLulio, The Coming of the Super-Predators, WKLY. 
STANDARD, Nov. 27, 1995. A dismal example of pseudo-scholarship, with language that 
borders on explicit racism, the theory has been roundly condemned by criminologists. See 
Glenn W. Muschert, The Columbine Victims and the Myth of the Juvenile Superpredator, 
5 YOUTH VIOLENCE & JUV. JUST. 351 (2007); Franklin E. Zimring, The Youth Violence 
Epidemic: Myth or Reality, 33 WAKE FOREST L. REV. 727 (1998). In response, DiLulio 
has repudiated the idea. See Elizabeth Becker, As Ex-Theorist on Young ‘Superpredators,’ 
Bush Aide Has Regrets, N.Y. TIMES (Feb. 9, 2001), https://www.nytimes.com/2001/02/09 
/us/as-ex-theorist-on-young-superpredators-bush-aide-has-regrets.html [https://perma.cc 
/SVW4-BJVN] (quoting DiLulio as saying: ‘‘If I knew then what I know now, I would 
have shouted for prevention of crimes.’’). The damage, however, has been done. 
52 CARA H. DRINAN, THE WAR ON KIDS: HOW AMERICAN JUVENILE JUSTICE LOST ITS 
WAY (2018); Michelle India Baird & Mina B. Samuels, Justice for Youth: The Betrayal 
of Children in the United States, 5 J.L. & POL’Y 177 (1996); Wayne A. Logan, 
Proportionality and Punishment: Imposing Life Without Parole on Juveniles, 33 WAKE 
FOREST L. REV. 681 (1998); Mark H. Moore & Stewart Wakeling, Juvenile Justice: 
Shoring Up the Foundations, 22 CRIME & JUST. 253 (1997). The practice in Texas is that a 
child being tried as an adult is held, before being judged guilty, in an adult facility. 
MICHELE DEITCH ET AL., LYNDON B. JOHNSON SCH. OF PUB. AFFS., U. TEX. AT AUSTIN, 
CONDITIONS FOR CERTIFIED JUVENILES IN TEXAS COUNTY JAILS (2012), https:// 
utw10452.utweb.utexas.edu/sites/default/files/file/news/Conditions%20for%20Certified 
%20Juveniles%20in%20Texas%20County%20Jails-FINAL4.pdf [https://perma.cc/J8X5 
-CXLR] (noting that this practice has been partially modified in recent years).
53 See supra note 47. In other words, repeat offender statutes have multiple motivations
—offense to both the sovereign and the sacred. Both are primordial and, as stated,
inconsistent with our modern, democratic notion of due process.
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Courts, and Prisons to a Modern Administrative Agency
be a more general coordination problem, such as the way steamboats 
are designed or the discharge of effluents into a river.54  
Third, in the premodern era when the criminal justice system first 
emerged, the state was primarily regarded as a means of maintaining 
order. The essential components of government during this era were 
the military, which secured the boundaries of the state from external 
threats and suppressed challenges to the ruling authorities from armed 
subordinates within those borders, and a taxation system that 
maintained these forces and the personal household of the ruler.55 
Thus, the criminal law’s efforts to prevent harm, or to punish it once 
it occurred, tended to center around the use of governmental force. 
Modern law, in contrast, deploys a range of implementation 
strategies, including positive incentives, institutional restructuring, 
negotiated agreements, and cooperative interactions.56 The criminal 
54 On the evolution of the administrative state in the United States see generally BRIAN 
BALOGH, A GOVERNMENT OUT OF SIGHT: THE MYSTERY OF NATIONAL AUTHORITY IN 
NINETEENTH-CENTURY AMERICA (2009); NOGA MORAG-LEVINE, CHASING THE WIND: 
REGULATING AIR POLLUTION IN THE COMMON LAW STATE (2003); JERRY L. MASHAW, 
CREATING THE ADMINISTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF 
AMERICAN ADMINISTRATIVE LAW (2012); STEPHEN SKOWRONEK, BUILDING A NEW 
AMERICAN STATE: THE EXPANSION OF NATIONAL ADMINISTRATIVE CAPACITIES, 1877–
1920 (1982). The example of steamboat regulation comes from Jerry L. Mashaw’s 2012 
book.  
55 See generally THOMAS ERTMAN, BIRTH OF THE LEVIATHAN: BUILDING STATES 
AND REGIMES IN MEDIEVAL AND EARLY MODERN EUROPE (1997); ERNEST GELLNER, 
NATIONS AND NATIONALISM (1983); CHARLES TILLY, COERCION, CAPITAL, AND 
EUROPEAN STATES: AD 990–1990 (1992); WEBER, supra note 11, at 1158–1210. 
56 The process has in fact led to a new subfield of public administration, generally 
called implementation theory. See IAN AYRES & JOHN BRAITHWAITE, RESPONSIVE 
REGULATION: TRANSCENDING THE DEREGULATION DEBATE (1992) (describing means of 
obtaining compliance from regulated parties); EUGENE BARDACH & ROBERT A. KAGAN, 
GOING BY THE BOOK: THE PROBLEM OF REGULATORY UNREASONABLENESS (1982) 
(analyzing strategies for enforcing law through inspection): EUGENE BARDACH, THE 
IMPLEMENTATION GAME: WHAT HAPPENS AFTER A BILL BECOMES A LAW (1977) 
(general introduction to implementation issues); DANIEL A. MAZMANIAN & PAUL A. 
SABATIER, IMPLEMENTATION AND PUBLIC POLICY (1989) (analyzing case studies of 
implementation efforts in disparate policy areas); DEBORAH STONE, THE POLICY 
PARADOX: THE ART OF POLITICAL DECISION MAKING (1997) (describing the prevalence 
of political considerations in the implementation process); JEFFREY L. PRESSMAN & 
AARON WILDAVSKY, IMPLEMENTATION: HOW GREAT EXPECTATIONS IN WASHINGTON 
ARE DASHED IN OAKLAND; OR, WHY IT’S AMAZING THAT FEDERAL PROGRAMS WORK 
AT ALL (1973) (analyzing the complexities of implementing public policy). It would be 
fair to say that the central theme of implementation theory is that mere governmental 
command backed by force is inefficient and often ineffective, and that a wide range of 
complex techniques is required for the government to achieve its desired results. On the 
way that institutional actors learn and cooperate in this process, see infra note 247. 
276 OREGON LAW REVIEW [Vol. 100, 261 
justice system has gradually adopted some of these more varied, 
modern strategies, but its underlying inclination to respond with state-
sanctioned violence remains in place. 
A final set of beliefs is specific to England, from which American 
law and legal attitudes originate, of course. The Normans, who 
conquered England in 1066, were the most efficient managers of the 
Middle Ages.57 They provided their newly acquired territory with a 
precociously effective government that included the Exchequer, a 
genuine administrative agency that collected the money due from the 
monarch’s multiple demesnes.58 Henry II, an Angevin, built on this 
foundation to create a group of royal justices, originally attached to 
the Exchequer, who traveled around the realm resolving property 
disputes, and thereby created a uniform law—the common law— 
for the entire realm.59 These two institutions, soon supported by 
Parliament60 and later supplemented by chartered companies such as 
57 CHARLES HOMER HASKINS, THE NORMANS IN EUROPEAN HISTORY (1915). 
58 See HELEN M. JEWELL, ENGLISH LOCAL ADMINISTRATION IN THE MIDDLE AGES 
87–122 (1972); WARREN, supra note 16, at 301–16. England was divided into shires and 
each shire had a royal officer, the shire reeve (sheriff) who was responsible for the 
management of the king’s properties in that shire, as well as various other duties. The 
reeve did not remit income from these properties directly to the king; instead, he collected 
them himself, and was responsible for paying a predetermined amount (the “farm”) to the 
Exchequer, an office separate from the king’s household. The Exchequer, headed by the 
Justiciar, received these payments and kept records of them, the pipe rolls. The Exchequer 
had many of the attributes of a modern agency, so much so that one of its members, during 
the reign of Henry II, was able to write a remarkably modern-sounding treatise on its 
operations. RICHARD FITZ NIGEL, DIALOGUS DE SCACCARIO: THE COURSE OF THE 
EXCHEQUER (Charles Johnson ed. and trans., 1983). 
59 ARTHUR R. HOGUE, ORIGINS OF THE COMMON LAW 34–45, 145–65 (1966); 
JEWELL, supra note 58, at 123–57; MORTIMER, supra note 16; WARREN, supra note 16, at 
317–61. The justices were itinerant, riding circuit among the shires. A litigant could have 
his case heard by them by obtaining a writ, originally novel disseisin or mort d’ancestor, 
later many others. The judgment, based on evidence obtained from a jury (called a jury of 
recognition) was at first only provisional, with final judgment based on trial by combat or 
ordeal. The orderliness and evidence-based nature of the proceedings proved so attractive 
that litigants often agreed to be bound by the justice’s decision. 
60 See J.R. MADDICOTT, THE ORIGINS OF THE ENGLISH PARLIAMENT, 924–1327, at 
157–231 (2010); PETER SPUFFORD, ORIGINS OF THE ENGLISH PARLIAMENT (1967). The 
legislatures in England and on the Continent were established to authorize taxes beyond 
those that were part of the feudal system. While most of the Continental ones became 
vestigial during the so-called Age of Absolutism, the English Parliament, for a variety of 
reasons, became increasingly powerful, actually taking control of the government during 
the seventeenth century. See MICHAEL BRADDICK, GOD’S FURY, ENGLAND’S FIRE: A 
NEW HISTORY OF THE ENGLISH CIVIL WARS (2008). It determined the royal succession a 
few decades later, see STEVE PINCUS, 1688: THE FIRST MODERN REVOLUTION (2009), and 
then gradually displaced the king over the course of the eighteenth century, see BRIAN W. 
HILL, SIR ROBERT WALPOLE: ‘SOLE AND PRIME MINISTER’ (1989); WILLIAM HAGUE, 
2022] Criminal Justice Through Management: From Police, Prosecutors, 277 
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the Bank of England and the East India Company,61 proved so 
effective that they prevailed in England until the nineteenth century. 
On the European Continent, managerial systems developed at a later 
period, often part of the Renaissance and Reformation Era state-
building process, and modeled on the organizational structure of field 
armies.62 The English, possessing an adequate managerial system 
from an earlier era, and spared the need for an army due to their 
insular location, developed an aversion and contempt for these 
institutions, and came to regard them as a threat to English liberty.63 
We inherited these attitudes, and they have fueled a pervasive distrust 
of centralized, hierarchical institutions of government. But what was 
valid in the sixteenth century and quaint in the nineteenth has become 
dysfunctional in the administrative era of the twentieth and twenty-
first centuries. 
These premodern attitudes that continue to influence our approach 
to criminal law conflict with its recognized purpose. As in other areas, 
the primary goal of governmental action is prevention, but while the 
practice of regulatory law is consistent with this purpose, the practice 
of criminal law conflicts with it. Regulatory law is proactive; the law 
not only defines the harm to be prevented but also establishes an 
WILLIAM PITT THE YOUNGER (2005). Here again, developments in England, later Britain, 
provided a substitute for centralized, hierarchical command that functioned adequately 
until the advent of the administrative state.  
61 STEPHEN R. BOWN, MERCHANT KINGS: WHEN COMPANIES RULED THE WORLD, 
1600-1900, at 109–54 (2010); ERTMAN, supra note 55, at 215–21; DAVID KYNASTON, 
TILL TIME’S LAST SAND: A HISTORY OF THE BANK OF ENGLAND 1694-2013 (2020); 
PHILIP LAWSON, THE EAST INDIA COMPANY: A HISTORY (1993). These government-
authorized, but privately run, chartered companies exercised enormous power during the 
eighteenth century, and once again enabled England-Britain to dispense with centralized 
government control. 
62 See generally ERTMAN, supra note 55 (development of “patrimonial absolutism” on 
the Continent as opposed to England); DENYS HAY, EUROPE IN THE FOURTEENTH AND 
FIFTEENTH CENTURIES 81–131 (1966) (development of centralized administration, 
particularly taxation, in France as opposed to England); DAVID OGG, EUROPE IN THE 
SEVENTEENTH CENTURY 275–311 (1948) (absolutism of Louis XIV, contrasted with 
England and the Dutch Republic); GEOFFREY TREASURE, SEVENTEENTH CENTURY 
FRANCE: A STUDY OF ABSOLUTISM 286–344 (1966) WEBER, supra note 11, at 980–82, 
1148–56 (bureaucratization of the army and its relation to bureaucracy in general). 
63 See generally PINCUS, supra note 60, at 179–317; J.G.A. POCOCK, THE ANCIENT 
CONSTITUTION AND THE FEUDAL LAW: A STUDY OF ENGLISH HISTORICAL THOUGHT IN 
THE SEVENTEENTH CENTURY 56–69 (1987); Robert Zaller, Parliament and the Crisis of 
European Liberty, in PARLIAMENT AND LIBERTY: FROM THE REIGN OF ELIZABETH TO 
THE ENGLISH CIVIL WAR 201 (J.H. Hexter ed., 1992). With respect to attitudes regarding a 
centralized police force, see EMSLEY, supra note 5, at 64–66, 82–83.  
278 OREGON LAW REVIEW [Vol. 100, 261 
agency to implement its policy.64 That agency, in turn, plans a 
strategy, promulgates regulations to elaborate and specify the law, 
and develops a coordinated program of information gathering, 
inspection, guidance, and education to carry out its deterrent purpose. 
Criminal law tends to be reactive, not by intent but as a consequence 
of its premodern origins.65 Its purpose is obscured by its reactions, 
which tend to be disproportionate, over-punitive, coercive, and 
uncoordinated. As the Attorney General’s report correctly noted, its 
tendency is to act after a violation has occurred, to deter by terror 
rather than by strategy and planning. 
The extent to which these premodern attitudes tend to obscure or 
undermine the deterrent purposes of criminal law, facilitate, and are 
exacerbated by, the criminal law’s institutional fragmentation. They 
facilitate this fragmentation because they induce each of the 
institutions that had separately developed to justify its action through 
disproportionate, over-punitive, and coercive treatment of offenders. 
They are exacerbated by fragmentation because these institutions 
have no overarching supervision, no rationale, and no dispassionate 
coordinating authority to constrain their excessive reactions and 
coordinate their separate operations.66 A system that is supposed to 
64 As noted above, Weber provides the classic definition of a bureaucratic or 
administrative agency. WEBER, supra note 11, at 215–23, 958–63. For discussions of the 
distinctive features of administrative or regulatory law, see Edward L. Rubin, Law and 
Legislation in the Administrative State, 89 COLUM. L. REV. 369 (1989). 
65 Under the pressure of its preventive purpose and the demands of the modern world, 
the American criminal justice system has moved away from the adversary process in the 
vast majority of cases and relies on an administrative-like approach to fact finding, 
compliance, and deterrence. But it does so on an ad hoc and unsupervised basis, without 
the coherence, discipline, and oversight that is the essence of a regulatory regime. See 
MALCOLM M. FEELEY, COURT REFORM ON TRIAL: WHY SIMPLE SOLUTIONS FAIL 3–33, 
191–207 (1983) [hereinafter COURT REFORM]; Malcolm M. Feeley, How to Think About 
Criminal Court Reform, 98 B.U. L. REV. 673 (2018); Malcolm M. Feeley, Criminal 
Justice as Regulation, 23 NEW CRIM. L. REV. 113 (2020). See also ROBERT A. KAGAN, 
ADVERSARIAL LEGALISM: THE AMERICAN WAY OF LAW 73–115 (rev. ed. 2019) 
(dysfunctional operation of American adversarial approach to criminal justice). 
66 Franklin Zimring has identified fragmentation as the single most important 
explanation for five hundred unnecessary homicides each year by police in the United 
States, and points to the need for centralized oversight. FRANKLIN E. ZIMRING, WHEN 
POLICE KILL (2017). Similarly, Sharon Dolovich has observed that the failure of oversight 
of American prisons has had a devastating impact on prisoner and staff health and safety; 
she argues that it is both willful and purposeful. Sharon Dolovich, The Failed Regulation 
and Oversight of American Prisons, 5 ANN. REV. CRIMINOLOGY 153 (2022). The failure 
of governors, legislatures, county commissioners, and judges to take decisive action as the 
Covid pandemic caused countless numbers of easily preventable deaths in the nation’s 
jails and prisons underscores her argument. Unlike courts, hospitals, and universities, 
police and corrections are consciously structured hierarchically as quasi-military command 
2022] Criminal Justice Through Management: From Police, Prosecutors, 279 
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deter crime and protect the citizens becomes a self-sustaining process 
where police, prosecutors, courts, and prisons prove their worth, both 
to themselves and to the sources of their authority and funding, by 
becoming increasingly and purposelessly severe. 
II 
WHERE WE ARE 
As Sarah Mayeaux points out, we have come to describe the 
various aspects of our nation’s response to crime as a system.67 
Despite this verbal concession to modernity, our so-called system 
functions as a collection of separate, uncoordinated elements68 that 
does not deserve the designation.69 It consists of at least six groups of 
and control organizations, in part because they are in need of oversight and regulation 
because they deal with extremely vulnerable populations and confront life and death 
decisions on a daily basis.  
67 Sara Mayeux, The Idea of “The Criminal Justice System,” 45 AM J. CRIM. L. 55 
(2018). A leading example is National Advisory Commission on Criminal Justice 
Standards and Goals, Report on the Criminal Justice System (1973), one of the reports 
issued by this Commission. See discussion infra pp. 304–05 (describing the Commission 
and its work). 
68 The Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90–351, 82 Stat. 
197 (codified at 34 U.S.C, § 10101 et seq.), defines criminal justice as follows:  
[A]ctivities pertaining to crime prevention, control, or reduction, or the
enforcement of the criminal law, including, but not limited to, police efforts to
prevent, control, or reduce crime or to apprehend criminals, including juveniles,
activities of courts having criminal jurisdiction, and related agencies (including
but not limited to prosecutorial and defender services, juvenile delinquency
agencies and pretrial service or release agencies), activities of corrections,
probation, or parole authorities and related agencies assisting in the
rehabilitation, supervision, and care of criminal offenders, and programs relating
to the prevention, control, or reduction of narcotic addiction and juvenile
delinquency . . . . 
34 U.S.C. § 10251. This provision effectively delineates the scope of the criminal justice 
system, or what would be the system if the components that are identified were sufficiently 
coordinated. 
69 The term is used widely in social theory and related fields, but almost always in 
connection with an organized set of interacting elements functioning within a stable 
boundary. See, e.g., LUDWIG VON BERTALANFFY, GENERAL SYSTEM THEORY: 
FOUNDATIONS, DEVELOPMENTS, APPLICATIONS (1968) (common features of biological, 
organizational, social and mechanical systems); NIKLAS LUHMANN, SOCIAL SYSTEMS 
(John Bednarz Jr. trans., 1995) (systems as bounded, self-producing and essentially 
discursive); TALCOTT PARSONS, THE SOCIAL SYSTEM (1951) (ways in which social 
system structures human behavior). See also JÜRGEN HABERMAS, THE THEORY OF 
COMMUNICATIVE ACTION: VOLUME 2: LIFEWORLD AND SYSTEM: A CRITIQUE OF 
FUNCTIONALIST REASON 204–82 (Thomas McCarthy trans., 1987) (extension of Parsons’ 
theory to incorporate lived experience as social action).  
280 OREGON LAW REVIEW [Vol. 100, 261 
government actors—police, jailers, prosecutors, public defenders, 
judges, and corrections officials—organized in independent 
institutions, often dealing with the same individual in partial or total 
ignorance of what the other institutions have done or will do. As if 
this was not sufficiently complex and confusing, these institutions 
typically function (or malfunction) at different levels of government, 
even ignoring the peculiarities of American federalism. Police are 
funded and managed by municipalities; jails by counties and 
occasionally states; prosecutors by counties and, in a few places, 
states; judges by municipalities, counties, and states; public 
defender’s offices by the county or occasionally state; and corrections 
largely by the states.70  
Both leaders and staff members of these disparate groups at their 
disparate levels have different disciplinary backgrounds, different 
training, different ideologies, and different institutional loyalties. 
Cooperation among them ranges from partial to nonexistent, with the 
most consistent pattern being their complaints about each other. 
Oversight is weak to absent, even within each of these separate 
institutions, and wholly absent across them. Incentives tend to be 
particularized and frequently conflicting. The theory of the 
adversarial system encourages and validates such conflicts.71 The 
predictable result, as briefly canvassed below, is a fragmented, 
disarticulated set of institutions that is a system only by assertion or 
aspiration, but not by actual operation. 
To be sure, this does not mean that practices are wholly 
unpredictable or chaotic. Given the fragmentation of the criminal 
justice system, police departments, courts, and even prisons often 
function as small communities whose patterns can be discerned and 
generalized. Social scientists seem to view them as an anthropologist 
might see a small tribe in a vast rain forest or on an isolated island. 
They tend to develop distinct cultures, based on their own 
institutional roles and proclivities, that are an adaptive response to the 
larger forces that surround them.72 Like all isolated communities, they 
70 The levels of government that control each institution will be specified in the course 
of the discussion, see infra pp. 353–54. 
71 See, e.g., KAGAN, supra note 65; Malcolm Feeley, The Adversary System, in 
ENCYCLOPEDIA OF THE AMERICAN JUDICIAL SYSTEM 753 (Robert J. Janosik ed., 1987). 
72 See, e.g., THOMAS W. CHURCH, EXAMINING LOCAL LEGAL CULTURE: PRACTITIONER 
ATTITUDES IN FOUR CRIMINAL COURTS (1982); JAMES Q. WILSON, VARIETIES OF POLICE 
BEHAVIOR: MANAGEMENT OF LAW AND ORDER IN EIGHT COMMUNITIES (1968); Thomas 
W. Church, Jr, Examining Local Legal Culture, 10 AM. BAR FOUND. RSCH. J. 449
(1985); Randy Corcoran, Changing Prison Culture, 67 CORRECTIONS TODAY 24 (2005)
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Courts, and Prisons to a Modern Administrative Agency
view outsiders with suspicion and resist provocative inquiries or 
oversight, and they tend to return to their natural equilibrium once the 
disruption has been abated.73 Occasionally the community is 
thoroughly shaken up in ways that lead to significant change, but even 
these changes often follow a pattern; when they are imposed from the 
outside, for example, they tend to become unstable over time because 
there is no one to institutionalize and oversee them.74  
A. Detection: Police
The balkanized, fragmented nature of our so-called criminal justice 
system can be illustrated by tracing the path of the typical offender 
through its component institutions. The process begins with an arrest 
by the police. Typically, this institution is operated by the locality 
where the incident leading to the arrest has occurred; given American 
localism, this leads to the extreme fragmentation of policing 
services.75 Police departments tend to be nominally organized in a 
hierarchical structure, but individual police officers usually work 
alone or in pairs in ways that insulate them from effective 
supervision.76 Moreover, nearly half the local police departments in 
the nation consist of fewer than ten sworn officers, which virtually 
precludes an effective supervisory structure within the department.77  
(government-sponsored research specifying change strategies for prisons that strongly 
implies a high level of resistance to change).  
73 See Martha L. Shockey-Eckles, Police Culture and the Perpetuation of the Officer 
Shuffle: The Paradox of Life Behind “The Blue Wall,” 35 HUMAN. & SOC’Y 290 (2011) 
(confirming resistance of police to outside criticism and the tendency of departments to 
“shuffle” misbehaving officers to less visible positions, but noting dissatisfaction of 
officers who must work with the miscreant). 
74 See, e.g., CHARLES R. EPP, MAKING RIGHTS REAL: ACTIVISTS, BUREAUCRATS, AND 
THE CREATION OF THE LEGALISTIC STATE 1–30, 215–32 (2009); STEPHEN RUSHIN, 
FEDERAL INTERVENTION IN AMERICAN POLICE DEPARTMENTS 160–208 (2017). 
75 See supra note 23. To reiterate, there are 18,000 separate police departments 
(including sheriff’s departments, state high patrol agencies, and the like) in the United 
States. The degree of supervision at the state level varies from state to state, but it is 
generally low, and no federal agency has supervisory authority over local police. See, e.g., 
SAMUEL WALKER & CHARLES M. KATZ, THE POLICE IN AMERICA (7th ed. 2009). The 
main way in which our national government exercises any control is by attaching 
conditions to monetary grants. 
76 MICHAEL LIPSKY, STREET-LEVEL BUREAUCRACY: DILEMMAS OF THE INDIVIDUAL 
IN PUBLIC SERVICES (1980). 
77 BUREAU OF JUST. STATS., supra note 36, at 3 (47.7% of local police departments 
have fewer than ten sworn officers, with part-time officers counted as 0.5). Moreover, 88% 
of local police departments have fewer than 50 sworn officers. Of course, these small or 
diminutive departments account for a much lower percentage of the total number of local 
282 OREGON LAW REVIEW [Vol. 100, 261 
Because the police are almost invariably organized as a separate 
institution, and often along quasi-military lines,78 they have failed to 
evolve very far from the armed patrols of the early modern era, when 
offenses were still seen as frontal assaults on the ruler and state 
authority was closely associated with the use of force. Congress’ 
decision that the best way to assist local police departments was to 
provide them with surplus military equipment, from night vision 
goggles to grenade launchers to armored vehicles, reflects the 
persistence of this perspective.79 Clearly, their equipment and general 
comportment are designed and organized around the role of detaining 
and arresting dangerous wrongdoers.80 This generates a generally 
police officers, but that figure is nonetheless about one quarter (26.2%)—some 123,000 
individuals. According to a leading school text on police supervision, “[a] first-line 
manager must communicate constantly with each officer supervised—allaying rumors; 
interpreting policy; and coaching, mentoring, or utilizing persuasion when the situation 
dictates.” LARRY S. MILLER ET AL., EFFECTIVE POLICE SUPERVISION 8 (Routledge 9th ed. 
2021). Supervision depends upon accountability, according to the authors, and there are 
five identifiable levels—“personal, individual, team, organizational, and stakeholders 
. . . .” Id. at 16. It is difficult to imagine these requirements being effectuated in an 
independent organization that has fewer than ten full-status members, or even in the 88% 
of local police departments with fewer than 50.  
78 Even prior to recent developments, observers have noted that police uniforms and 
equipment are based on a false or mythological concept of military force. See Thomas J. 
Cowper, The Myth of the “Military Model” of Leadership in Law Enforcement, 3 POLICE 
Q. 228 (2000); Scott W. Phillips, Myths, Militarism and the Police Patrol Rifle, 26
POLICING & SOC’Y 185 (2016). The mythological character of police militarization is
underscored by the historical record, which is that police in the Western World evolved
largely from civilian security forces, not from the use of the military for domestic
purposes. See EMSLEY, supra note 5, at 51–77. In fact, it was resistance to the use of the
military for domestic crime control that led to the development of professional police
forces.
79 The Law Enforcement Support Program, or 1033 Program was created by the 
National Defense Authorization Act for Fiscal Years 1990 and 1991. H.R. 2461, 101st 
Cong. (1989). It was later codified by the National Defense Authorization Act for Fiscal 
Year 1997. 10 U.S.C. § 2576(a) (authorizing Secretary of Defense to sell or transfer excess 
military equipment to local police departments). The equipment has included airplanes, 
helicopters, mine-resistant ambush-protected vehicles, grenade launchers, assault rifles, 
bayonets, and camouflage gear. See RADLEY BALKO, RISE OF THE WARRIOR COP: THE 
MILITARIZATION OF AMERICA’S POLICE FORCES 177–307 (2013); Peter B. Kraska, 
Militarization and Policing—Its Relevance to 21st Century Police, 4 POLICING 501 
(2007). 
80 Some researchers have concluded that providing military equipment to police is cost 
effective and reduces crime. See Vincenzo Bove & Evelina Gavrilova, Police Officer on 
the Frontline or a Soldier? The Effect of Police Militarization on Crime, 9 AM. ECON. J. 
ECON. POL’Y 1 (2017). This conclusion has been challenged by more carefully done 
studies. See, e.g., Anna Gunderson et al., Counterevidence of Crime-Reduction Effects 
from Federal Grants of Military Equipment to Local Police, 5 NATURE HUM. BEHAV. 194 
(2021). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 283 
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combative, adversarial attitude and encourages them, or perhaps 
incites them, to view the people they are policing as the enemy.81 
Such a stance may be counteracted by their respect for middle-class 
people of their own race, but it is bound to exacerbate the underlying 
racial and class antagonisms that are so prevalent in our society when 
police deal with minority or otherwise disadvantaged populations.82 
Combined with the poor level of training and supervision that all but 
the largest American police departments are able to provide, the 
resulting mix of intentional brutality and accidental mayhem is 
virtually inevitable.83 
However problematic current police practices, equipment, and 
training may be for arresting potentially dangerous suspects, they are 
still more inappropriate in the great majority of cases when some 
other intervention is desired or preferable.84 In some cases, the 
situation is a fluid one that might be interpreted in a variety of 
different ways. Worse still, a uniformed officer with a gun might be 
entirely unable to perform a deterrent function, eliciting hostility or 
81 See Casey Delehanty et al., Militarization and Police Violence: The Case of the 
1033 Program, 4 RSCH. & POL. 1 (2017) (transfer of military equipment to police leads to 
higher rate at which police kill civilians); Edward Lawson Jr., Trends: Police 
Militarization and the Use of Lethal Force, 72 POL. RSCH. Q. 177 (2019) (same). 
82 See, e.g., ALEXANDER, supra note 26, at 97–139; PAUL BUTLER, CHOKEHOLD: 
POLICING BLACK MEN (2017); Joshua Correll, et al., Across the Thin Blue Line: Police 
Officers and Racial Bias in the Decision to Shoot, 92 J. PERSONALITY & SOC. PSYCH. 
1006 (2007); Renée McDonald Hutchins, Racial Profiling: The Law, the Policy and the 
Practice, in POLICING THE BLACK MAN: ARREST, PROSECUTION AND IMPRISONMENT 95 
(Angela J. Davis ed., 2017); E. Ashby Plant & B. Michelle Peruche, The Consequences of 
Race for Police Officers’ Responses to Criminal Suspects, 16 AM. PSYCH. SOC’Y 180 
(2005). See I. Bennett Capers, Afrofuturism, Critical Race Theory, and Policing in the 
Year 2044, 94 N.Y.U. L. REV. 1 (2019) (critiquing current police practices by imagining 
the difference that will occur once people of color are in the majority in the United 
States.). 
83 See John Paul & Michael L. Birzer, Images of Power: An Analysis of the Militarization 
of Police Uniforms and Messages of Service, 32 FREE INQUIRY CREATIVE SOCIO. 121 
(2004) (increasingly military appearance of police designed to emphasize violence and 
discourage supervision). “The modern militarized police uniform (with its emphasis on 
camouflage and/or black colors) is a force of symbolic violence used primarily to distance 
community inquiries of police action.” Id. at 122. 
84 See Ben Bradford et al., Police Futures and Legitimacy: Redefining ‘Good Policing,’ 
in THE FUTURE OF POLICING 79 (Jennifer M. Brown ed., 2014); Andrew Millie, What Are 
the Police For? Re-Thinking Policy Post-Austerity, in THE FUTURE OF POLICING, supra, at 
52; Barry Friedman, Disaggregating the Policing Function, 169 U. PA. L. REV. 925, 987–
91 (2021) (recommending alternatives to uniformed officers as mode of law enforcement 
and community peacekeeping).  
284 OREGON LAW REVIEW [Vol. 100, 261 
avoidance instead of a request for help.85 The same is true for the 
investigative function. When a homeowner reports a burglary, the last 
thing that the responding officer needs is a gun and a uniform. When 
a female victim reports a rape, the last thing she needs is a male 
officer with a gun and a uniform.86 The calls to defund the police that 
have proved to be such an attractive target for law-and-order 
conservatives can be understood as a demand that the independent, 
militaristic police department be replaced with an administrative 
structure that assigns appropriate staff to the wide variety of different 
tasks that are needed to improve the safety of American 
communities.87 
B. Disposition: Sheriffs, Prosecutors, and Judges
In cases where the police arrest a suspect, they quickly transfer the 
person to a jail, an entirely separate institution.88 Jails, typically run 
85 See EMSLEY, supra note 5, at 9 (study of Staffordshire police, 2007-2014 showed 
that only one fifth of all calls to the police concerned crime as opposed to other issues of 
individual concern or public order). 
86 See Joanna Belknap, Rape: Too Hard to Report and Too Easy to Discredit Victims, 
16 VIOLENCE AGAINST WOMEN 1335 (2010) (ninety percent of rapes unreported); Karen 
Rich & Patrick Seffrin, Police Interviews of Sexual Assault Reporters: Do Attitudes 
Matter?, 27 VIOLENCE & VICTIMS 263 (2012) (attitudes of responding officer critical to 
continuation of case); Rachel M Venema, Making Judgments: How Blame Mediates 
the Influence of Rape Myth Acceptance in Police Response to Sexual Assault, 34 J. 
INTERPERSONAL VIOLENCE 2697 (2019). See also Shirley Feldman-Summers & Gayle C. 
Palmer, Rape as Viewed by Judges, Prosecutors, and Police Officers, 7 CRIM. JUST.  
& BEHAV. 19 (1980) (discussing general attitudes toward rape in criminal justice 
institutions). Due to the obvious nature of the problem, and the activism of the feminist 
community, a number of jurisdictions have implemented Sexual Assault Nurse Examiner 
(SANE) programs beginning in the 1990s. See Kristin Littell, Sexual Assault Nurse 
Examiner (SANE) Programs: Improving the Community Response to Sexual Assault 
Victims, in OVC BULLETIN, U.S. DEP’T OF JUST. (2001) (finding these programs 
effective); A.C. Ciancone et al., Sexual Assault Nurse Examiner Programs in the United 
States, 35 ANNALS OF EMERGENCY MED. 353 (2000) (describing programs and calling for 
further research).  
87 For a similar recommendation regarding policing, see Leah A. Jacobs et al., Defund 
the Police: Moving Towards an Anti-Carceral Social Work, 32 J. PROGRESSIVE HUM. 
SERVS. 37 (2021). Cf. Jessica M. Eaglin, To “Defund” the Police, 73 STAN. L. REV. 
ONLINE 120 (2021) (the defunding movement is a discursive strategy that emphasizes the 
way that current police practices marginalize minority communities); Friedman, supra 
note 84 (many functions now performed by police are better performed by other types of 
government staff). 
88 See J.M. MOYNAHAN & EARLE K. STEWART, THE AMERICAN JAIL: ITS 
DEVELOPMENT AND GROWTH (1980) (development of jails as separate institutions). The 
jail, as a mode of detention, is much older than the prison as a mode of punishment, 
tracing its beginnings to the High Middle Ages. When the United States was founded, 
there were, in effect, no prisons but numerous jails. See ROTHMAN, supra note 20, at 52–
2022] Criminal Justice Through Management: From Police, Prosecutors, 285 
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by gun-toting sheriffs who are elected on promises to keep the peace, 
and staffed by deputies who would prefer to be police officers, 
contain over 700,000 Americans at any one time, and cycle some 10 
million through their facilities in the course of a year.89 Although they 
are in total control of the inmates whom they incarcerate, they are 
structured as temporary holding places that generally have only 
rudimentary knowledge of the offending behavior or the mental and 
physical status of the inmates, and no means for taking these matters 
into account.90 The jails themselves are generally funded and 
supervised by counties, which generally means that they are 
underfunded and under-supervised, with conditions ranging from 
Spartan to horrific.91 Inmates either prey on weaker people or are 
56. For an account of modern jails, see JOHN IRWIN, THE JAIL: MANAGING THE
UNDERCLASS IN AMERICAN SOCIETY (2nd ed. 2013).
89 For descriptions of management in contemporary jails, see IRWIN, supra note 88, at 
42–45, 67–73; MICHAEL L. WALKER, INDEFINITE: DOING TIME IN JAIL 26–46, 110–26 
(2022). For population statistics, see DEP’T OF JUST., OFF. OF JUST. PROGRAMS, JAIL 
INCARCERATION RATE DECREASED BY 12% FROM 2008 TO 2018 (2020), https://bjs.ojp 
.gov/content/pub/press/ji18pr.pdf [https://perma.cc/QMP4-QVLJ] (738,400 in 2018); Zhen 
Zang, Jail Inmates in 2018, in BULLETIN, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT. 
(2020). The decrease in jail populations indicates some concern about the impact of these 
institutions, but the number of people who pass through them, nearly three percent of the 
American population every year, remains astronomical. African Americans are jailed at 
3.5 times the rate of non-Hispanic whites. Id. at 3. 
90 See, e.g., Doris J. James & Lauren Glaze, Mental Health Problems of Jail and 
Prison Inmates, in SPECIAL REPORT, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT. 1, 9 
(2006) (although 60% of jail inmates exhibited mental health problems in the year prior to 
arrest, only 17% receive mental health care); Kevin Fiscella et al., Alcohol and Opiate 
Withdrawal in U.S. Jails, 94 AM. J. PUB. HEALTH 1522 (2004) (only 28% of jails sampled 
had any processes for detoxifying arrestees, despite the prevalence of drug and alcohol 
dependence in the inmate population); Molly S. Parece, et al., STD Testing Policies and 
Practices in U.S. City and County Jails, 26 SEXUALLY TRANSMITTED DISEASES 431 
(1999) (most jails only test 0.2% to 6% of inmates for STD’s, and only on the basis of 
observed symptoms or inmate request); Bonita M. Vesyey, et al., In Search of the Missing 
Linkages: Continuity of Care in U.S. Jails, 15 BEHAV. SCIS. & L. 383 (1997) (longitudinal 
study indicating that jails lack the capacity to track and respond to inmates with mental 
illness). These findings are hardly surprising given the lack of administrative capacity in 
most U.S. counties and the lack of coordinating structure that might provide them with 
support and training.  
91 See JUDICIAL POLICY MAKING, supra note 27, at 104–23 (describing conditions in 
the Santa Clara County jails that led to a comprehensive court order); IRWIN, supra note 
88 (conditions in contemporary jails lead to the degradation, disorientation and 
disintegration of inmates); HOMER VENTERS, LIFE AND DEATH IN RIKERS ISLAND (2019) 
(miserable health and safety conditions in New York City’s largest jail); Nicholas 
Freudenberg, Jails, Prisons, and the Health of Urban Populations: A Review of the Impact 
of the Correctional System on Community Health, 78 J. URB. HEALTH 214 (2001) 
(jails, like prisons, are breeding grounds of communicable diseases). This data regarding 
286 OREGON LAW REVIEW [Vol. 100, 261 
preyed upon by stronger ones.92 The small-time drug dealer sleeps in 
the same room as the hired assassin; the mentally unstable shoplifter 
watches TV next to the violent gang member.93 Although a number of 
states have experimented with release pending trial based on 
calculated risk factors,94 and a few have implemented this approach, 
the majority still determine whether arrestees remain in these 
miserable facilities on a basis that discriminates against the poor95 
conditions in jail is confirmed by anecdotal accounts. See SHAUN ATTWOOD, HARD TIME: 
LOCKED UP ABROAD (2014). 
92 See ALLEN J. BECK ET AL., U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., SEXUAL 
VICTIMIZATION IN PRISONS AND JAILS REPORTED BY INMATES, 2011–12: NATIONAL 
INMATE SURVEY, 2011–12 (2013) (high frequency of sexual victimization in both 
settings); Jessica Grosholz & Daniel C. Semenza, Health Conditions and Victimization 
Among Incarcerated Individuals in U.S. Jails, 74 J. Crim. Just. 1 (2021) (vulnerable 
prisoners, such as those with physical or mental disabilities, are frequently victimized in 
prison).  
93 The unsurprising result is that suicide is the single largest cause of death in local 
jails, accounting for about thirty percent of roughly one thousand deaths in jails each year. 
See E. ANN CARSON, U.S. DEP’T OF JUST., BUREAU OF JUST. STAT., MORTALITY IN 
LOCAL JAILS, 2000-2018–STATISTICAL TABLES 3–6 (2021) (in 2018, there were roughly 
335 suicides in American local jails). 
94 See John Logan Koepke & David G. Robinson, Danger Ahead: Risk Assessment and 
the Future of Bail Reform, 93 WASH. L. REV. 1725 (2018); Richard F. Lowden, Risk 
Assessment Algorithms: The Answer to an Inequitable Bail System?, 19 N.C. J.L. & TECH. 
221 (2018); ARTHUR W. PEPIN, CONF. OF STATE CT. ADM’RS, 2012-2013 POLICY PAPER: 
EVIDENCE-BASED PRETRIAL RELEASE (2013), https://www.ncsc.org/__data/assets/pdf_file 
/0015/23802/Evidence-Based-Pre-Trial-Release-Final.pdf [https://perma.cc/Z7CJ-6WDT]. 
95 This obvious injustice has been long recognized. See ALEXIS DE TOCQUEVILLE, 
DEMOCRACY IN AMERICA (Harvey C. Mansfield & Delba Winthrop eds. & trans., Univ. of 
Chi. Press 2000) (1835). 
It is evident that such legislation is directed against the poor and favors only 
the rich. 
The poor man does not always find bail, even in civil matters, and if he is 
constrained to go await justice in prison, his forced inaction soon reduces him to 
misery. The rich man, on the contrary, always succeeds in escaping imprisonment 
in civil matters; even more, should he have committed a punishable offense, he 
easily escapes the punishment that ought to reach him: after having furnished 
bail, he disappears. One can therefore say that for him, all penalties that the law 
inflicts are reduced to fines. What is more aristocratic than legislation like this? 
Id. at 44–45. That something written nearly two centuries ago (by a French aristocrat, 
no less) is so relevant to current conditions is a real condemnation. The reference to 
imprisonment for civil matters, generally for debt, might seem to be the only part of the 
quotation that sounds outdated. See PETER J. COLEMAN, DEBTORS AND CREDITORS IN 
AMERICA: INSOLVENCY, IMPRISONMENT FOR DEBT, AND BANKRUPTCY, 1607-1900 
(1999) (describing the widespread use of the criminal justice system as a means of debt 
collection in colonial and United States history before 1900). But even this abuse is now 
prevalent in the American criminal justice system. See ALEXANDRA NATAPOFF, 
PUNISHMENT WITHOUT CRIME: HOW OUR MASSIVE MISDEMEANOR SYSTEM TRAPS  
THE INNOCENT AND MAKES AMERICA MORE UNEQUAL 113–47 (2018); Neil L. Sobol, 
2022] Criminal Justice Through Management: From Police, Prosecutors, 287 
Courts, and Prisons to a Modern Administrative Agency
and combines with other circumstances to discriminate against racial 
minorities as well.96 
With the arrested suspect moldering or smoldering in jail, his case 
goes to a prosecutor, again a member of an entirely different 
institution, and again funded by the county.97 In fact, most prosecutors 
in the United States are elected,98 which places them entirely outside 
the state’s administrative hierarchy.99 Even apart from that source of 
independence, the doctrine of prosecutorial discretion insulates most 
prosecutors from supervision in all but the most serious or high 
profile cases.100 Instead, the electoral connection subjects them to 
external pressures that tend to make them more punitive and 
undermines the discretion that insulates them from more valid 
supervision.101  
If the prosecutor decides to proceed, she must—in theory—obtain 
an indictment and then bring the case before another separate 
institution, the criminal court, sometimes administered by the locality 
or county, but often by the state government. Here, also in theory, the 
Charging the Poor: Criminal Justice Debt & Modern-Day Debtors’ Prisons, 75 MD. L. 
REV. 486 (2016); Alexes Harris, A Pound of Flesh: Monetary Sanctions as Punishment for 
the Poor, 21 THEORETICAL CRIMINOLOGY 247 (2017). See also infra note 335 (court fees 
and judicial independence). 
96 Tina L. Frieburger & Carly M. Hilinski, The Impact of Race, Gender, and Age on 
the Pretrial Decision, 35 CRIM. JUST. REV. 318 (2010) (because African American men 
are incarcerated at above-average rates, they are less likely to have the resources to post 
bail, and thus more likely to succumb to disadvantageous plea bargains, leading to further 
incarceration and thus a self-reinforcing cycle). 
97 See JOAN E. JACOBY, THE AMERICAN PROSECUTOR: A SEARCH FOR IDENTITY 
(1980); PFAFF, supra note 26, at 128–46. 
98 This peculiar feature of American government, a reaction to Jacksonian patronage, 
see Michael J. Ellis, The Origins of the Elected Prosecutor, 121 YALE L.J. 1528 (2012), 
creates obvious opportunities for the application of external pressure and further impedes 
coherent policy making.  
99 PFAFF, supra note 26, at 134–45. 
100 ANGELA J. DAVIS, ARBITRARY JUSTICE: THE POWER OF THE AMERICAN 
PROSECUTOR (2007); see NATAPOFF, supra note 95, at 66–71; PFAFF, supra note 26, at 
52–61; I. Bennett Capers, Against Prosecutors, 105 CORNELL L. REV. 1561, 1567–70 
(2020); Siddhartha Bandyopadhyay & Bryan C. McCannon, The Effect of the Election of 
Prosecutors on Criminal Trials, 161 Pub. Choice 141 (2014). 
101 See PFAFF, supra note 26, at 140–42; Sanford C. Gordon & Gregory A. Huber, 
Citizen Oversight and the Electoral Incentives of Criminal Prosecutors, 46 AM. J. POL. 
SCI. 334 (2002); David Alan Sklansky, The Problems with Prosecutors, 1 ANN. REV. 
CRIMINOLOGY 451 (2018). The general conclusion is that these are low visibility elections 
that are determined by the nomination of the dominant political party in the district or are 
influenced by a small number of committed citizens, generally those with overly punitive 
attitudes. 
288 OREGON LAW REVIEW [Vol. 100, 261 
accused will benefit from an elaborate and much-celebrated set of 
rights. In the states, however, judges are typically elected rather than 
appointed, which again has the dual, non-administrative effect of 
placing them outside the administrative hierarchy102 and subjecting 
them to political pressures.103 To take advantage of these rights, 
moreover, the accused person must have a lawyer, and that person, 
unless the accused is atypically prosperous, will need to be provided 
by the public defenders’ office, still another separate institution with 
often inadequate funding sources.104 Overall, the theory of the 
adversary system holds that each of these institutions is independent 
of the other,105 and the ideals of professionalism accord enormous 
deference to individual decisions and impose weak oversight within 
the separate offices. By design, no one is in charge.  
102 There are a variety of managerial issues that do not affect the substance of decision 
but affect the general efficiency of the decision-making process. These include case 
assignment, case management (availability of record-keeping or videoconferencing), 
staffing, and physical facilities. For a discussion of how judicial independence is preserved 
within an administrative structure, see infra pp. 315–17. 
103 See Charles H. Franklin, Behavioral Factors Affecting Judicial Independence, in 
JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY APPROACH 148 
(Stephen B. Burbank & Barry Friedman eds., 2002) (in low visibility elections such as 
those for judges, small groups of highly committed individuals often control the result); 
Paul J. De Muniz, Politicizing State Judicial Elections: A Threat to Judicial Independence, 
38 WILLAMETTE L. REV. 367 (2002) (impact of state elections on Oregon Supreme Court); 
Michael J. Nelson, Responsive Justice? Retention Elections, Prosecutors, and Public 
Opinion, 2 J.L. & COURTS 117 (2014) (judges respond to a strong, issue-specific, 
constituency-level opinion signals); Joanna M. Shepherd, The Influence of Retention 
Politics on Judges’ Voting, 38 J. LEGAL STUD. 169 (2009) (elections and retention 
elections have significant effects on judicial decisions). There can be arguments about 
whether electoral influence on judges is invariably undesirable, see, e.g., Pamela S. 
Karlan, Two Concepts of Judicial Independence, 72 S. CAL. L. REV. 535, 541–43 (1999), 
but there seems little doubt that it adds an element of unpredictability and institutional 
complexity to the criminal justice system. See Charles Gardner Geyh, Why Judicial 
Elections Stink, 64 OHIO ST. L.J. 43 (2003) (because majority of people oppose the 
election of judges, elections undermine the legitimacy of the judiciary).  
104 See AM. BAR ASS’N, GIDEON’S BROKEN PROMISE: AMERICA’S CONTINUING 
QUEST FOR EQUAL JUSTICE (2004); Stephen B. Bright, Gideon’s Reality: After Four 
Decades, Where Are We?, 18 CRIM. JUST. 5 (2003); Bruce A. Green, Criminal Neglect: 
Indigent Defense from a Legal Ethics Perspective, 52 EMORY L.J. 1169 (2003); Richard 
Klein, Due Process Denied: Judicial Coercion in the Plea Bargaining Process, 32 
HOFSTRA L. REV. 1349, 1386–88 (2004); Rebecca Marcus, Racism in Our Courts: The 
Underfunding of Public Defenders and Its Disproportionate Impact upon Racial 
Minorities, 22 HASTINGS CONST. L.Q. 219 (1994); Deborah L. Rhode, Presumed Guilty: 
Class Injustice in Criminal Justice, in DEBORAH L. RHODE, ACCESS TO JUSTICE 122 
(2004).  
105 See KAGAN, supra note 65. 
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If the defendant is found guilty, he will then be sentenced by the 
judge, whose discretion, after having supervised the trial and learned 
all the information that it provides, will typically be limited to sending 
the now-convicted individual to one of two other separate institutions, 
each one being the sixth one in the process. These are, of course, 
prison, generally operated by the state government, or the probation 
office, which may be state, county, or local. In making these 
dispositions, the judge will typically be limited to stating a length of 
time or, if just deserts reign supreme in the jurisdiction, will be 
obligated to impose a minimum sentence that is often well beyond the 
maximum that could be justified by either our democratic norms or a 
rational strategy for decreasing crime.106 
Even this process, fractured and disorganized as it appears, is in 
fact an idealized account. A great many defendants, particularly in 
larger jurisdictions, face a bewildering segmentation of labor. Several 
different prosecutors will likely prepare their case with minimal 
consultation among them and several different public defenders will 
do so as well.107 In addition, one or more judges may preside over the 
106 One egregious example is the federal provision that manufacturing and dispensing, 
or possessing with intent to dispense, often small and sometimes tiny amounts of specified 
narcotics, shall be punished by no less than 10 years in prison or 20 years “if death or 
serious bodily injury” results from the use of the substance. 21 U.S.C. § 841. Other 
examples are the state “three strikes and you’re out” statutes. See supra note 47. Regarding 
crime control, see Linda S. Beres & Thomas D. Griffith, Do Three Strikes Laws Make 
Sense? Habitual Offender Statutes and Criminal Incapacitation, 87 GEO. L.J. 103 (1998) 
(three-strikes laws unlikely to reduce crime through incapacitation, even if proponents are 
correct that a small number of individuals commit a large portion of serious crimes); 
Thomislav V. Kovandzic et al., “Striking Out” as Crime Reduction Policy: The Impact of 
“Three Strikes” Laws on Crime Rates in U.S. Cities, 21 JUST. Q. 207 (2004) (three-strikes 
laws do not decrease crime but are positively correlated with homicide rates); Thomas B. 
Marvell & Carlisle E. Moody, The Lethal Effects of Three-Strikes Laws, 30 J. LEGAL 
STUD. 89 (2001) (three-strikes laws are positively correlated with homicide rate). One 
author offers, as the best defense of mandatory minimum sentences at the federal level, 
that they often do not increase prison time beyond the excessively long sentences 
prescribed by other statutes. See David Bjerk, Mandatory Minimums and the Sentencing of 
Federal Drug Crimes, 46 J. LEGAL STUD. 93 (2017). 
107 See David L. Weimer, Vertical Prosecution and Career Criminal Bureaus: How 
Many and Who?, 8 J. CRIM. JUST. 369 (1980) (prosecutors and public defender offices 
handle cases horizontally as well as vertically). In vertical prosecution and defense, one 
lawyer deals with the case from near the beginning to the end. In horizontal systems, the 
case is passed on to different lawyers who specialize in different stages of the process. 
David M. Engel, Vertical and Horizontal Perspectives on Rights Consciousness, 19 IND. J. 
GLOB. LEGAL STUD. 423 (2012).  
290 OREGON LAW REVIEW [Vol. 100, 261 
early parts of the process and still a different one at sentencing.108 
The fragmentation of the judiciary and the public defender’s office 
amplifies the power of the prosecutor, who is the moving party in the 
case,109 while the fragmentation of the prosecutor’s office means that 
this overwhelming power will be exercised in an undisciplined and 
incoherent manner.  
As is well known and already noted, however,110 the vast majority 
of cases do not go to trial but are either dropped or plea bargained by 
the prosecutor. This reduces, although does not eliminate, the role of 
the separate institutions of the trial court and public defender. It also 
risks reduction of the protections that we celebrate as so essential to 
our freedom.111 The prosecutors’ principal motivation, even apart 
from the political pressure resulting from their status as elected 
officials, is to obtain convictions as expeditiously as possible.112 The 
public defenders’ motivations will range from getting the accused 
person the shortest sentence possible to getting home for dinner.113 
108 Judges, too, may be organized vertically and horizontally. Larger and busier courts 
are more likely to be organized horizontally since this method provides for a more 
efficient division of labor. Judicial assignments vary, but large courts commonly have 
specially assigned judges at arraignment, motions, trial, and sentencing. See FEELEY, 
supra notes 24, 65. 
109 For a critical assessment of the expanding power of prosecutors in federal criminal 
cases, see Nancy Gertner, A Short History of American Sentencing: Too Little Law, Too 
Much Law, or Just Right, 100 J. CRIM. L. & CRIMINOLOGY 691 (2010); Allison D. Redlich 
et al., The Influence of Confessions on Guilty Pleas and Plea Discounts, 24 PSYCH. PUB. 
POL’Y & L. 147 (2018). For the impact of plea bargaining on possible sentencing in capital 
cases, see Susan Ehrhard, Plea Bargaining and the Death Penalty: An Exploratory Study, 
29 JUST. SYS. J. 313 (2008); Ilyana Kuziemko, Does the Threat of the Death Penalty 
Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement 
of Capital Punishment, 8 AM. L. & ECON. REV. 116 (2006). 
110 See supra p. 269. 
111 See, e.g., Alafair S. Burke, Prosecutorial Passion, Cognitive Bias, and Plea 
Bargaining, 91 MARQ. L. REV. 183 (2007) (allows invalid and dysfunctional attitudes by 
prosecutor to dominate); Michael M. O’Hear, Plea Bargaining and Procedural Justice, 42 
GA. L. REV. 407 (2008) (denies defendants opportunity to explain themselves and gain a 
sense of fairness from the process); Stephen J. Schulhofer, Plea Bargaining as Disaster, 
101 YALE L.J. 1979 (1992) (violates due process and is ineffective for crime control). 
112 PAUL BUTLER, LET’S GET FREE: A HIP-HOP THEORY OF JUSTICE 114–20 (2009) 
(adversarial attitudes of prosecutors); PFAFF, supra note 26, at 127–60 (prosecutors 
respond to political pressure); Adam M. Gershowitz & Laura R. Killinger, The State 
(Never) Rests: How Excessive Prosecutor Caseloads Harm Criminal Defendants, 105  
NW. U. L. REV. 261 (2011) (large caseloads encourage overly aggressive prosecutorial 
behavior). 
113 Michael McConville & Chester L. Mirsky, Criminal Defense of the Poor in New 
York City, 15 N.Y.U. REV. L. & SOC. CHANGE 581 (1987) (empirical study finding that 
New York’s court-appointed attorneys failed to provide effective assistance of counsel); 
John B. Mitchell, The Ethics of the Criminal Defense Attorney—New Answers to Old 
2022] Criminal Justice Through Management: From Police, Prosecutors, 291 
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Neither prosecutors nor public defenders will have any direct 
knowledge of the treatment afforded by institution number six (prison 
or probation), and the staff of those institutions will not have any 
communication with either of them.  
Opinions about the fairness of plea bargaining vary; while many 
condemn it as a denial of justice,114 others regard it as reasonably fair 
and efficient,115 while still others accept it as a necessary concession 
to the realities of crushing caseloads and limited resources.116 For 
present purposes, the essential point is that plea bargaining is 
unsupervised and under-proceduralized when compared to the trial 
process it supposedly displaces. In fact, that trial process—the 
extensively prepared, elaborately scripted, vociferously argued 
confrontation structured by well-defined formal procedures—is 
largely a myth, based on a few widely publicized cases involving 
famous or notorious defendants. Historical studies reveal that the 
jury trial of the past, itself an ad hoc accommodation to crisis 
conditions,117 was nasty brutish and short118 and was replaced by plea 
Questions, 32 STAN. L. REV. 293, 319–21 (1980) (public defenders ration their efforts by 
necessity, providing effective defense to some clients and not to others).  
114 See Burke, supra note 111; O’Hear, supra note 111; Schulhofer, supra note 111 
(condemnations of plea bargaining). 
115 See Kyle Graham, Crimes, Widgets, and Plea Bargaining: An Analysis of Charge 
Content, Pleas, and Trials, 100 CALIF. L. REV. 1573 (2012) (plea bargaining reaches 
results consistent with substantive law); Ronald F. Wright & Rodney L. Engen, The Effects 
of Depth and Distance in a Criminal Code on Charging, Sentencing and Prosecutor 
Power, 84 N.C. L. REV. 1935 (2006) (same). 
116 See Stephanos Bibas, Designing Plea Bargaining from the Ground Up: Accuracy 
and Fairness Without Trials as Backstops, 57 WM. & MARY L. REV. 1055 (2016) (plea 
bargaining can become fair if it is conceived on its own terms); Robert E. Scott & William 
J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909 (1992) (plea bargaining
should not be abolished but improved through use of contract law principles).
117 The crisis was that Pope Innocent III, in the Fourth Lateran Council (1215), banned 
priests from officiating at trial by ordeal. See Finbarr McAuley, Canon Law and the End of 
the Ordeal, 26 OXFORD J. LEGAL STUD. 473 (2006). On trial by ordeal generally, see 
ROBERT BARTLETT, TRIAL BY FIRE AND WATER: THE MEDIEVAL JUDICIAL ORDEAL 
(1988). King John had to conform English trial practice to this papal command 
immediately because he had declared himself the personal vassal of the Pope in an effort 
to obtain support in the dispute with the English barons that produced the Magna Carta. 
See W.L. WARREN, KING JOHN 206–17 (2nd ed. 1978). In response, the grand juries of 
freemen that were being used to bring indictments were adapted to resolve the case by 
making findings of fact, thus initiating the petty jury. See FREDERICK POLLOCK & 
FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF 
EDWARD I, at 578–673 (2nd ed. 1898); Sanjeev Anand, The Origins, Early History and 
Evolution of the English Criminal Trial Jury, 43 ALTA. L. REV. 407 (2005). 
292 OREGON LAW REVIEW [Vol. 100, 261 
bargaining well before the modern era.119 Our premodern attitudes 
about crime and punishment, discussed above, have kept the myth of 
the adversarial trial alive and blocked us from asserting supervisory 
control over plea bargaining and integrating it into the larger system 
of criminal justice.  
C. Punishment: Prisons, Probation, and Parole
The standard way we deal with serious offenders in our society, 
and an alarmingly common way that we deal with minor offenders, is 
to imprison them, often for periods that range from long to extremely 
long to outrageously long.120 Prisons are administered by still another 
institution, typically through a state-level department of corrections.121 
Indeed, offenders are often sentenced to prisons by county judges, 
who are mindful of the fact that the state, rather than the county, will 
pay for their incarceration.122 If the sentence is short by American 
standards (which sometimes means less than two and a half years), 
the offender may be sent to the local, county-run jail rather than 
118 John H. Langbein, The Criminal Trial Before the Lawyers, 45 U. CHI. L. REV 263 
(1978). See THOMAS WONTNER, OLD BAILEY EXPERIENCE: CRIMINAL JURISPRUDENCE 
AND THE ACTUAL WORKING OF OUR PENAL CODE OF LAWS 39 (1833) (average trial at 
Old Bailey lasted eight minutes).  
119 Malcolm M. Feeley, Legal Complexity and the Transformation of the Criminal 
Process: The Origins of Plea Bargaining, 31 ISR. L. REV. 183 (1997); John H. Langbein, 
Torture and Plea Bargaining, 46 U. CHI. L. REV. 3 (1978); John H. Langbein, 
Understanding the Short History of Plea Bargaining, 13 L. & SOC’Y. REV. 261 (1979). 
120 See supra note 25. 
121 See PRISON AND JAIL ADMINISTRATION: PRACTICE AND THEORY (Peter M. 
Carlson ed., 3rd ed. 2015); KENNETH J. PEAK & ANDREW L. GIACOMAZZI, JUSTICE 
ADMINISTRATION: POLICE, COURTS, & CORRECTIONS MANAGEMENT 244–81 (9th ed. 
2018). The extent to which control of actual operations is decentralized from the state level 
to the level of the individual prison varies from state to state, further complicating the 
situation. Of course, decentralization is a feature of most administrative systems and 
would be a feature of the one proposed here as well. But with a comprehensive 
administrative agency, the level of decentralization could be calibrated on the basis of the 
overall needs of the criminal justice system, instead of being determined solely by the 
demands on prison management. For example, the extent to which prisons attempted to 
rehabilitate the inmates might be more fully and uniformly prescribed if the prisons were 
part of an integrated system, rather than separate institutions. See Francis T. Cullen et al., 
The Correctional Orientation of Prison Wardens: Is the Rehabilitative Ideal Supported?, 
31 CRIMINOLOGY 69 (1993) (the extent to which the prison follows a rehabilitative model 
is often a matter for the individual wardens to decide). 
122 See, e.g., Malcolm M. Feeley, How to Think about Criminal Court Reform, 98 B.U. 
L. REV. 673 (2018).
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prison, adding another element of institutional complexity and lack of 
coordination.123 
Prison administrators are responsible for the time established by 
the legislature, prescribed by the judge within boundaries set by the 
legislature, or agreed to by the prosecutor and the defense attorney. 
The correctional system itself has no control over this initial 
designation. It can sometimes reduce the length of the sentence on the 
basis of good behavior,124 but early release is typically in the hands of 
the parole board, either a component of the correctional system or 
another separate institution.125 If the prisoner is paroled, he will then 
be supervised by that institution.126 If he is not paroled—or after his 
parole period is completed—he will be sent back into society, but, 
with a sudden surge of efficiency, the criminal justice system rarely 
provides a seventh follow-up institution. The typical offender, having 
been through this process, will have little or no institutional support as 
he tries to recover from his previous behavior pattern and the 
mistreatment that the criminal justice system has inflicted on him.127  
123 See, e.g., Brittnie L. Aiello, “We Incarcerate to Set Free:” Negotiating Punishment 
and Rehabilitation in Jail, 1 J. QUALITATIVE CRIM. JUST. & CRIMINOLOGY 292, 297 
(2013) (study of county jail where those serving sentences of less than two and half years 
were held); Harold D. Delaney et al., Variations in Jail Sentences and the Probability of 
Re-Arrest for Driving While Intoxicated, 6 TRAFFIC INJ. PREVENTION 105 (2005) (study of 
jail sentences for drunk-driving offenses); Mark Pogrebin et al., Collateral Costs of Short-
Term Jail Incarceration: The Long-Term Social and Economic Disruptions, 5 CORR. MGMT. 
Q. 64 (2001) (study of effects of using jails to incarcerate those with short sentences).
124 See James B. Jacobs, Sentencing by Prison Personnel: Good Time, 30 UCLA L. 
REV. 217 (1982) (conflict between good time and determinate sentencing and rationales 
for its use); Paul J. Larkin, Jr., Clemency, Parole, Good-Time Credits, and Crowded 
Prisons Reconsidering Early Release, 11 GEO. J.L. & PUB. POL’Y 1, 40–42 (2013) (good 
time, unlike parole, is controlled by the prison itself); Michael M. O’Hear, Solving the 
Good-Time Puzzle: Why Following the Rules Should Get You Out of Prison Early, 2012 
WIS. L. REV. 195, 200–06 (allowing prison officials to control length of sentence raises 
serious questions). 
125 HOWARD ABADINSKY, PROBATION AND PAROLE: CORRECTIONS IN THE 
COMMUNITY 159–79 (13th ed. 2018).  
126 See, e.g., JONATHAN SIMON, POOR DISCIPLINE: PAROLE AND THE SOCIAL 
CONTROL OF THE UNDERCLASS, 1890–1990, at 205–29 (1993); JOAN PETERSILIA, WHEN 
PRISONERS COME HOME: PAROLE AND PRISONER REENTRY 55–92 (2003); Dhammika 
Dharmapala et al., Legislatures, Judges, and Parole Boards: The Allocation of Discretion 
Under Determinate Sentencing, 62 FLA. L. REV. 1037 (2010); Victoria J. Palacios, Go and 
Sin No More: Rationality and Release Decisions by Parole Boards, 45 S.C. L. REV. 567 
(1994). 
127 See Doreen Anderson-Facile, Basic Challenges to Prisoner Reentry, 3 SOCIO. 
COMPASS 183 (2009) (about 700,000 prisoners are released each year, with most receiving 
only minimal assistance for reentry). 
294 OREGON LAW REVIEW [Vol. 100, 261 
Whatever one’s theory of punishment, prison is supposed to be a 
remedy—a response to the wrongful behavior that other parts of the 
criminal justice system have determined that the inmate has 
committed. One would imagine that an effective remedy would need 
to be tailored to the circumstances presented by the particular 
offender, whether the goal of the remedy is to administer just deserts 
to the offender, rehabilitate him, deter him from future crime, or hold 
him until he is no longer likely to commit a crime. But the basic 
features of a prison are so oppressive, and the management problems 
so demanding, that they overwhelm any effort to deal with the 
offender’s individual characteristics.128 One dreary exception, 
resulting from the pervasive management problems this institution 
suffers, is the supermax prison where the inmates are isolated in small 
cells twenty-three hours a day.129 We have known, ever since the 
birth of American penitentiaries two centuries ago, that this is literally 
torture;130 current studies indicate that it produces catastrophic and 
permanent psychological damage.131  
Even if the prison had the capability to tailor its treatments to the 
individual characteristics of the prisoner, it would lack the necessary 
information. The criminal justice system is not designed to elicit the 
128 See Erving Goffman, On the Characteristics of Total Institutions, in ERVING 
GOFFMAN, ASYLUMS: ESSAYS ON THE SOCIAL SITUATION OF MENTAL PATIENTS AND 
OTHER INMATES 1, 14–35 (1961) (describing “total institutions” where the inmates are 
stripped of their former identities and placed in a setting entirely discontinuous with the 
outside world). See also Derek A. Kreager & Candace Kruttschnitt, Inmate Society in the 
Era of Mass Incarceration, 1 ANN. REV. CRIMINOLOGY 261 (2018) (distinctive inmate 
social organization created by isolation from society).  
129 See Leena Kurki & Norval Morris, The Purposes, Practices, and Problems of 
Supermax Prisons, 28 CRIME & JUST. 385 (2001); Daniel P. Mears & Michael D. Reisig, 
The Theory and Practice of Supermax Prisons, 8 PUNISHMENT & SOC’Y 33 (2006); 
Jesenia Pizarro & Vanja M.K. Stenius, Supermax Prisons: Their Rise, Current Practices, 
and Effect on Inmates, 84 PRISON J. 248 (2004). 
130 ROTHMAN, supra note 20, at 95–101. See CHARLES DICKENS, AMERICAN NOTES 
FOR GENERAL CIRCULATION 233–68 (1850) (describing the mental deterioration of 
inmates in Pennsylvania’s solitary-confinement system). 
131 KERAMET REITER, 23/7: PELICAN BAY PRISON AND THE RISE OF LONG-TERM 
SOLITARY CONFINEMENT 23–29, 179–82 (2016) (general description of solitary confinement 
and its effects on inmates); Stuart Grassian, Psychiatric Effects of Solitary Confinement, 
22 WASH. U. J.L. & POL’Y 325 (2006) (serious psychosis induced by conditions of solitary 
confinement); Stuart Grassian, Psychopathological Effects of Solitary Confinement, 140 
AM. J. PSYCHIATRY 1450 (1983) (same); Lisa Guenther, Subjects Without a World? 
A Husserlian Analysis of Solitary Confinement, 34 HUM. STUD. 257 (2011) (frustration of 
essential human need for interpersonal contact resulting from solitary); Craig Haney, 
Restricting the Use of Solitary Confinement, 1 ANN. REV. CRIMINOLOGY 285 (2018) 
(assessing recent findings on the psychological effects on inmates confined to long-term 
solitary confinement).  
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sort of information that would be useful for this purpose. The prison 
will typically perform its own medical, mental health, education, and 
substance abuse assessments, but it will not receive the information 
already generated in the earlier stages of the process, to say nothing of 
a complete case file from the time of initial arrest or arraignment.132 
An even more serious problem than the ineffectiveness of 
imprisonment can be attributed to this impaired flow of information—
the excessive scale of imprisonment in the United States. Decisions 
made at each stage of the process are not coordinated with the 
subsequent stages, nor do they even take cognizance of those stages. 
This one-way flow of information through the system has allowed 
its other features to create the pile up of people in the end point of 
prisons. Whether it is the political decisions of policy makers, as 
James Forman argues;133 the racist practices of the police, per 
Michelle Alexander;134 the classist bias of our criminal justice system, 
per Jeffrey Reiman;135 the self-serving motivations of prosecutors, 
per John Pfaff;136 or—more likely—a combination of these elements, 
the result has been a steady increase in the number of people whom 
the criminal justice system deems worthy of imprisonment. None of 
these actors likely wanted to create a situation where expensive 
prisons are proliferating and becoming filled so quickly that the 
recreation facilities must be converted into makeshift dormitories. But 
that is the sort of result that will transpire when no overarching 
coordination or control exists and the single function of dealing with 
the offender is subdivided among separate institutions. 
The problem of incoherence and fragmentation remains more or 
less the same whether a popular turn to retribution or rehabilitation, or 
some mix of the two, occurs. The concerted War on Crime from the 
1990s into the 2000s unquestionably deepened fragmentation and 
returned us to a coercive policy of the premodern era. The vast 
popular support to get tough rigidified each of the separate 
components of the system and encouraged them to increase the 
132 PATRICIA L. HARDYMAN ET AL., U.S. DEP’T OF JUST., NAT’L INST. OF CORR., 
PRISONER INTAKE SYSTEMS: ASSESSING NEEDS AND CLASSIFYING PRISONERS (2004) 
(survey of fifty state prison intake systems, followed by intensive analysis of four state 
systems).  
133 JAMES FORMAN JR., LOCKING UP OUR OWN: CRIME AND PUNISHMENT IN BLACK 
AMERICA (2017). 
134 ALEXANDER, supra note 26. 
135 REIMAN, supra note 26. 
136 PFAFF, supra note 26. 
296 OREGON LAW REVIEW [Vol. 100, 261 
severity with which they carried out their particular tasks. The police 
get credit for arrests, even if they overload the courts. Prosecutors and 
courts get credit for convictions, even if they overload the prisons.137 
County judges get credit at election time for being tough on crime.138 
Prisons get credit for maintaining harsh conditions, even if this 
produces hostile, addicted, and uneducated inmates who overload the 
police upon their release.139  
But such adjustments are not restricted to the harshest periods. 
During recent years, alternatives to incarceration and rehabilitative 
programs have gained considerable public and professional 
support.140 But without coordination, these efforts are likely to be 
undermined by other components of the system. Alternatives to 
incarceration such as supervised release, boot camps, and treatment 
programs often become means of managing arrestees who otherwise 
would have had charges dropped or received probation without 
137 Id. at 69–77 (prosecutors responsible for large proportion of mass incarceration and 
prison overcrowding). 
138 See Franklin, supra note 103; De Muniz, supra note 103; Shepherd, supra note 103. 
They also get credit for sending offenders to state prison rather than the county jail—not 
with the voters, who are unlikely to notice, but with the county commissioners who are 
thereby spared the expense of housing the offender. See PFAFF, supra note 26, at 142–43. 
139 For example, grants for higher-education expenses, popularly known as Pell Grants 
after Senator Claiborne Pell, authorized by the Higher Education Act of 1965, Pub. L. No. 
89–329, 79 Stat. 1219 (codified in scattered sections of 20 U.S.C. § 1001 et seq.) were 
available to incarcerated persons and regularly used by them until 1994, when the Violent 
Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103–322, 108 Stat. 1796 
(codified at 42 U.S.C. ch. 136), precluded incarcerated persons from obtaining these 
grants. Id., § 401(b)(8), 20 U.S.C. § 1070a(b)(8). “No basic grant shall be awarded under 
this subpart to any individual who is incarcerated in any Federal or State penal institution.” 
Id. This title of the Act is Orwellian, at least with regard to this provision. Whatever 
punitive or vindictive inclination it satisfies, it clearly does not control crime. 
140 See, e.g., First Step Act of 2018, Pub. L. No. 115–391, 132 Stat. 5194 (codified in 
scattered sections of 8, 18, 34, & 42 U.S.C.) (increasing services to federal prisoners, 
reducing mandatory minimum sentences for narcotics violations, and prohibiting use of 
restraints on prisoners during pregnancy and labor); CHARLES W. COLSON, JUSTICE THAT 
RESTORES (2001) (somewhat garbled recommendation for religion-based restorative 
justice by conservative convicted in connection with Watergate scandal); Mark 
Oppenheimer, With Prison Ministry, Colson Linked Religion and Reform, N.Y. TIMES 
(Apr. 27, 2012), https://www.nytimes.com/2012/04/28/us/with-prison-ministry-colson 
-linked-religion-and-reform-beliefs.html [https://perma.cc/3EGS-UHT2] (description of
Colson’s founding of Prison Fellowship, a religion-based outreach program for prisoners);
JAMES AUSTIN & MICHAEL JACOBSON, BRENNAN CTR. FOR JUST., HOW NEW YORK CITY
REDUCED MASS INCARCERATION: A MODEL FOR CHANGE? (2013) (describing New York
City program that led to a seventeen percent reduction in New York State’s prison
population).
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Courts, and Prisons to a Modern Administrative Agency
conditions.141 Juvenile justice programs designed to prevent 
delinquency by moving toward a social work model are counteracted 
by community policing initiatives, like the “broken windows” idea 
that minor offenses, often committed by minors, should be fully 
prosecuted to convey the sense that the law must be taken 
seriously.142 To go back to the very beginning of the criminal justice 
system in the Early Republic, the prison itself was initially intended 
as a humane and rehabilitative way to deal with crime;143 two 
centuries later, it has morphed into the monster of mass incarceration. 
III 
WHAT WE HAVE TRIED 
A number of nations in Western Europe have addressed the 
inherited fragmentation of the criminal justice system, and, following 
the tradition of the Rechtsstaat, constructed a formal, professional 
criminal justice system, hierarchical within each of its components 
and subject to system-wide bureaucratic oversight. Germany has been 
particularly notable in moving toward a modernized administrative 
approach to criminal justice.144 In the United States, a promising start 
141 See Joan Petersilia & Susan Turner, Intensive Probation and Parole, 17 CRIME & 
JUST. 281 (1993); Michelle S. Phelps, The Paradox of Probation: Community Supervision 
in the Age of Mass Incarceration, 35 L. & POL’Y 51 (2013); Michelle S. Phelps, Mass 
Probation from Micro to Macro: Tracing the Expansion and Consequences of Community 
Supervision, 3 ANN. REV. CRIMINOLOGY 261 (2020). 
142 JAMES Q. WILSON, THINKING ABOUT CRIME 63–77 (rev. ed. 2013). The idea was 
originally advanced in George L. Kelling & James Q. Wilson, Broken Windows, ATLANTIC 
MONTHLY, Mar. 1982. It has been disproved by empirical evidence. See BERNARD E. 
HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 
(2001); Bernard E. Harcourt & Jens Ludwig, Broken Windows: New Evidence from New 
York City and a Five-City Social Experiment, 73 U. CHI. L. REV. 271 (2006). A further 
problem with this approach is that it occupies a great deal of time that could be better spent 
on other, more useful tasks. One estimate is that an arrest for a minor (non-index, part II) 
offense occupies between two and four hours of an officer’s time and that there were over 
nine million such arrests in the United States in 2013. Cynthia Lum & Daniel S. Nagin, 
Reinventing American Policing, 46 CRIME & JUST. 339, 344–45 (2017). 
143 See BENDER, supra note 20, at 43–61; FOUCAULT, supra note 18, at 73–131; 
ROTHMAN, supra note 20, at 79–101. 
144 See generally CRIME AND CRIMINAL JUSTICE IN MODERN GERMANY (Richard F. 
Wetzell ed., 2014); JAMES Q. WHITMAN, HARSH JUSTICE: CRIMINAL PUNISHMENT AND 
THE WIDENING DIVIDE BETWEEN AMERICA AND EUROPE 69–149 (2003); Bernd Dieter-
Meier, Alternatives to Imprisonment in the German Criminal Justice System, 16 FED. 
SENT’G REP. 222 (2004); Richard S. Frase & Thomas Weigend, German Criminal Justice 
as a Guide to American Law Reform: Similar Problems, Better Solutions?, 18 B.C. INT’L 
& COMPAR. L. REV. 317 (1995). Although retributivist in certain ways, the German system 
of criminal justice is forward looking and prevention oriented. Diversion and suspended 
298 OREGON LAW REVIEW [Vol. 100, 261 
occurred when Frank Remington, a faculty member at the University 
of Wisconsin Law School, directed a massive American Bar 
Association survey of the system and concluded that it could be 
analogized to a regulatory regime.145 This focused attention on the 
criminal law in action led to a more fact-based assessment of criminal 
justice institutions. The concept of criminal justice as a system 
emerged from this survey and from the follow-up task force reports of 
the Katzenbach Commission of 1967.146 While contributing some 
analytic clarity to the study of the criminal process, these early works 
generally produced two dysfunctional responses, one being close 
empirical studies that accepted the disjointed parts of the system as 
given147 and the other being the false impression that the system, as 
such, was coherent and rational.148 They did little to foster a 
comprehensive administrative or regulatory orientation to the study of 
practices in the criminal process. Describing our way of dealing with 
sentences are the norm, few offenders receive sentences of two years or more, and those 
serving sentences in and out of prisons can avail themselves of various rehabilitative 
programs. Although German law mandates “full prosecution” of all offenses, numerous 
alternatives exist to mitigate this apparent harshness. Furthermore, disparities occasioned 
by discretion are minimized due to shared norms that arise from well-trained, highly 
professionalized prosecutors and judges and from hierarchical oversight within both 
institutions. Although the judiciary and the prosecution systems are autonomous from the 
executive branch, they are, along with the police and prison system, subject to oversight 
and coordination from within the state ministries of justice and at times from the federal 
ministry of justice. Substantial changes in policing, sentencing, and prosecutorial priorities 
cannot occur without extensive planning and coordination, nor without opportunities to 
challenge the proposals. Needless to say, judges and chief prosecutors are not elected, and 
their offices—as well as the police and corrections—are organized at the level of the states 
(Länder), not local government.  
145 Remington, supra note 31. Specifically, Remington drew an analogy between the 
Federal Trade Commission, an administrative agency with the responsibility to develop 
enforcement policy regarding consumer fraud, and local criminal justice agencies, which 
have a similar responsibility. See also Malcolm M. Feeley, Reflections on Frank 
Remington, the ABF Survey, and the Wisconsin Law School, in LEGAL REALISM TO LAW 
IN ACTION (William Clune ed., 2021); Wayne R. LaFave, Frank Remington: The Man and 
His Work, 1992 WIS. L. REV. 570 (1992).  
146 PRESIDENT’S COMM’N ON L. ENF’T & ADMIN. OF JUST., THE CHALLENGE OF 
CRIME IN A FREE SOCIETY 8–9 (1967) [hereinafter KATZENBACH COMMISSION].  
147 The model for the avalanche of empirical research reports produced under the 
auspices of the Katzenbach Commission is the six volumes of empirical studies of each 
stage of the criminal process from policing to corrections produced by the ABA’s Survey 
of the Administration of Justice conducted under Remington’s direction. The follow up 
were the many Task Force Reports and auxiliary studies produced by the staff and contract 
researchers that the Commission supported. 
148 The widespread use of the term “criminal justice system” probably best illustrates 
this. See Mayeux, supra note 67. 
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crime as a system highlighted the system’s failures but did nothing to 
remedy its lack of systematization. 
In place of a comprehensive approach, a swelling chorus of critics 
identified any number of pathologies and suggested a great many ways 
to try to ameliorate the problems they identified.149 The cacophony of 
proposed solutions is too great to fully catalogue, but some of its most 
significant, or perhaps most loudly trumpeted components, are 
constitutionalism, professionalization, and rationalization. For the 
most part, however, these reforms have approached the challenge 
through the conventional frameworks of criminal law, criminal 
procedure, and sentencing, leaving the institutional structures of that 
system unaddressed.  
A. Constitutionalism
After civil rights, and perhaps voting rights, criminal law and 
procedure were probably the Warren Court’s most significant areas of 
action. Gerald Rosenberg’s conclusion that relying on the courts for 
major reforms is a “hollow hope” may seem overstated,150 but 
criminal justice provides strong confirmation of his claim. Miranda v. 
149 The critical literature is voluminous. For some of the most incisive commentary on 
contemporary American criminal justice by leading scholars, practitioners, and judges, see 
STEPHANOS BIBAS, THE MACHINERY OF CRIMINAL JUSTICE (2012); DAVID GARLAND, 
THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN CONTEMPORARY SOCIETY 
(2001); NICOLE GONZALES VAN CLEVE, CROOK COUNTY: RACISM AND INJUSTICE IN 
AMERICA’S LARGEST COURT (2016); ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: 
CRIMINAL COURTS AND SOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING 
(2018); NATAPOFF, supra note 95; PFAFF, supra note 26; RAKOFF, supra note 26; 
JONATHAN SIMON, GOVERNING THROUGH CRIME: HOW THE WAR ON CRIME 
TRANSFORMED AMERICAN DEMOCRACY AND CREATED A CULTURE OF FEAR (2007); 
DAVID ALAN SKLANSKY, A PATTERN OF VIOLENCE: HOW THE LAW CLASSIFIES CRIMES 
AND WHAT IT MEANS FOR JUSTICE (2021); WILLIAM J. STUNTZ, THE COLLAPSE OF 
AMERICAN CRIMINAL JUSTICE (2011); John Paul Stevens, Our ‘Broken System’ of 
Criminal Justice, N.Y. REV. BOOKS (Nov. 10, 2011); Democratizing Criminal Justice 
Symposium, 111 NW. U. L. REV. 1367 (2017). 
150 See GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT 
SOCIAL CHANGE? (2nd ed. 2008). For other well-known statements of this same theme, 
see DONALD L. HOROWITZ, THE COURTS AND SOCIAL POLICY (1977); STUART A. 
SCHEINGOLD, THE POLITICS OF RIGHTS (1974); Nathan Glazer, Towards an Imperial 
Judiciary?, 50 Pub. Int. 104 (1975). Our response, see JUDICIAL POLICY MAKING, supra 
note 27, at 316–23, is that success in social-policy cases cannot be measured in the simpler 
terms that apply to resolving a dispute between private parties and that it is rare for any 
social institution to resolve major problems by itself, rather than as part of a larger effort 
involving other institutions. 
300 OREGON LAW REVIEW [Vol. 100, 261 
Arizona151 declared that information obtained by egregious 
interrogation practices is inadmissible152 but did not prevent the 
police from using those practices or coercing confessions by more 
subtle means.153 Mapp v. Ohio154 gave defense attorneys in state 
cases grounds for excluding evidence obtained when police smashed 
through the door of a suspect’s home, trashed the interior, and 
terrorized the residents, but it did not stop police from smashing 
through the door, trashing the interior, and terrorizing the residents.155 
151 Miranda v. Arizona, 384 U.S. 436 (1966) (declaring evidence from confession 
inadmissible unless accused voluntarily waived right against self-incrimination).  
152 See Steven D. Clymer, Are Police Free to Disregard Miranda?, 112 YALE L.J. 447 
(2002) (Miranda does not prohibit coerced confessions, only the use of the evidence 
obtained by those means); Yale Kamisar, On the Fortieth Anniversary of the Miranda 
Case: Why We Needed It, How We Got It–and What Happened to It, 5 OHIO ST. J. CRIM. 
L. 163 (2007).
153 For discussions of the way that police can induce suspects to confess despite the
warnings provided by the Miranda decision, see ERWIN CHEMERINSKY, PRESUMED 
GUILTY: HOW THE SUPREME COURT EMPOWERED THE POLICE AND SUBVERTED  
CIVIL RIGHTS 122–24, 168–73 (2021); GEOFFREY R. STONE & DAVID A. STRAUSS, 
DEMOCRACY AND EQUALITY: THE ENDURING CONSTITUTIONAL VISION OF THE WARREN 
COURT 111–13 (2020); Linda A. Henkel & Kimberly J. Coofman, Memory Distortions in 
Coerced False Confessions: A Source Monitoring Framework Analysis, 18 APPLIED 
COGNITIVE PSYCH. 567 (2004); Tonja Jacobi, Miranda 2.0, 50 U.C. DAVIS L. REV. 1 
(2016); Hollida Wakefield & Ralph Underwager, Coerced or Nonvoluntary Confessions, 
16 BEHAV. SCI. & L. 423 (1998). See also George C. Thomas III, Stories About Miranda, 
102 MICH. L. REV. 1959 (2004) (police regularly use loopholes in the Miranda doctrine 
that have been created or expanded by the post-Warren court to obtain admissible evidence 
from confessions). 
154 Mapp v. Ohio, 367 U.S. 643 (1961) (extending the prohibition against admissibility 
of evidence obtained through violation of Fourth Amendment search and seizure 
requirements to state cases). 
155 See BALKO, supra note 79, at xii–xiv, 192–98, 262–66 (militarization of the police 
has led to excessively intrusive and confrontational police searches of private homes); 
RADLEY BALKO, CATO INST., OVERKILL: THE RISE OF PARAMILITARY POLICE RAIDS  
IN AMERICA (2006), https://www.ojp.gov/ncjrs/virtual-library/abstracts/overkill-rise 
-paramilitary-police-raids-america [https://perma.cc/9A7J-HG49]; BARRY FRIEDMAN,
UNWARRANTED: POLICING WITHOUT PERMISSION 117–209 (2017) (police regularly
violate Fourth Amendment limitations in conducting searches); Elsa Y. Ransom, Home:
No Place for “Law Enforcement Theatricals”—The Outlawing of Police/Media Home
Invasions in Ayeni v. Mottola, 16 LOY. L.A. ENT. L.J. 325 (1995) (police regularly enter
people’s homes while being filmed for reality television shows). In 2010, a heavily armed
police SWAT team in Columbia, Missouri, conducted a nighttime, forced entry raid of a
family home for suspected marijuana possession. Although possession of small amounts of
marijuana had been decriminalized in Missouri, the police stormed into the home, forced
the residents to lie down on the ground, fired their weapons, and intentionally shot and
killed the family dog. See Radley Balko, A Drug Raid Goes Viral, REASON (May 11,
2010, 4:30 PM), https://reason.com/2010/05/11/a-drug-raid-goes-viral-2/ [https://perma.cc
/7D46-G5LL] (describing police recording of the raid obtained by local newspaper under
state open-records law). As the article notes, the original recording of the raid has been
2022] Criminal Justice Through Management: From Police, Prosecutors, 301 
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Gideon v. Wainwright and its successors provided those accused of 
serious crimes with legal representation,156 which is essential in a 
criminal trial, but they did not decrease the overwhelming proportion 
of cases that are plea bargained, nor did they place any significant 
limitations on this dominant process.157 Robinson v. California held 
that imprisoning people on the basis of their status as addicts was 
cruel and unusual punishment,158 but the Court never followed up 
with limitations on the length of sentences, thus allowing absurdities 
such as imprisoning people for twenty-five years in the effort to stop 
them from impairing their quality of life with narcotics or to prevent 
them from committing minor offenses with limited economic impact 
such as petty shoplifting.159 In any case, as Michelle Alexander, 
Erwin Chemerinsky, and others have documented, the conservative 
Court of the past five decades has eroded even the inadequate 
protections that the Warren Court established.160 
If the Court had been more consistent and conscientious about 
enforcing constitutional limits on the criminal justice system, it could 
have resolved a number of problems. However, our current conception 
removed from the internet. Having obtained a warrant, the police were acting within the 
letter of the law, and they were able to impose a $300 fine on the residents for illegal 
possession of drug paraphernalia (a pipe). See BALKO, supra note 79, at xii–xiv. 
156 Gideon v. Wainwright, 372 U.S. 335 (1963). See, e.g., United States v. Gonzalez-
Lopez, 548 U.S. 140 (2006) (erroneous deprivation of defendant’s attorney of choice is a 
structural error requiring reversal of conviction); Argersinger v. Hamlin, 407 U.S. 25 
(1972) (person accused of a misdemeanor that can lead to incarceration has a right to 
counsel); see Alabama v. Shelton, 535 U.S. 654 (2002) (Argersinger holding applies even 
if defendant received a suspended sentence). 
157 See sources cited supra note 111. 
158 Robinson v. California, 370 U.S. 660 (1962). In addition to its pathbreaking holding 
that it is cruel and unusual punishment to sentence a person to even one day in prison for a 
health condition, see id. at 667, the case was significant in holding that the Eighth 
Amendment was incorporated into the Fourteenth Amendment’s Due Process Clause, and 
thus applicable to the states.  
159 See Harmelin v. Michigan, 501 U.S. 957 (1991) (upholding life sentence without 
possibility of parole for possession of twenty-four ounces of cocaine); Lockyer v. Andrade, 
538 U.S. 63 (2003) (upholding twenty-five years to life sentence for military veteran and 
father of three who shoplifted nine videotapes); Ewing v. California, 538 U.S. 11 (2003) 
(upholding twenty-five years to life sentence for habitual thief who shoplifted three golf 
clubs). Even apart from the obviously cruel and unusual nature of these laws, they seem to 
at least raise questions about their minimum rationality. At current costs for incarceration 
in California, see The Price of Prisons, VERA INST., https://www.vera.org/publications/price 
-of-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends/price
-of-prisons-2015-state-spending-trends-prison-spending [https://perma.cc/4MSN-EGTY],
imprisoning a petty thief for the minimum twenty-five years will cost society $1,600,000.
160 ALEXANDER, supra note 26; CHEMERINSKY, supra note 153. 
302 OREGON LAW REVIEW [Vol. 100, 261 
of the judicial role, derived from the still-dominant legal process 
theory,161 suggests that constitutionalism would not be able to reach 
the problems of institutional structure noted here. It is possible that 
the Court could have ordered improvements within the institutional 
ambit of the trial courts and the police, but unimaginable that it would 
actually order administrative coordination among police, prosecutors, 
courts, and prisons. Even within a single institution (or what is 
generally regarded as such), the federal judiciary was generally 
unable to confront and remedy abuses that resulted from the design of 
the institution itself, as opposed to specific practices.  
The notable exception is the group of prison reform decisions of 
the 1960s though 1980s by the lower federal courts. The most far-
reaching held that many practices prevalent in southern prisons, or 
entire southern state correctional systems, constituted cruel and 
unusual punishment in violation of the Eighth Amendment.162 In 
addition to these decisions, often motivated by a sense that southern 
prison systems were violating national norms by operating their 
prisons on the model of the quondam slave plantations,163 the courts 
have issued similar declarations against individual prisons in other 
161 For characteristic works, see ALEXANDER M. BICKEL, THE LEAST DANGEROUS 
BRANCH: THE SUPREME COURT AT THE BAR OF POLITICS (1962); JESSE H. CHOPER, 
JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS (1980); JOHN HART ELY, 
DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW (1980); Lon L. Fuller, The 
Forms and Limits of Adjudication, 92 HARV. L. REV. 353 (1978) (written and circulated in 
1957–59); Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. 
L. REV. 1 (1959). See generally William N. Eskridge, Jr. & Philip P. Frickey, The Making
of The Legal Process, 107 Harv. L. Rev. 2031 (1994) (description of Hart and Sachs
teaching materials). Regarding the continuing influence of this approach, see Edward L.
Rubin, The New Legal Process, the Synthesis of Discourse, and the Microanalysis of
Institutions, 109 HARV. L. REV. 1393 (1996); Robert Weisberg, The Calabresian Judicial
Artist: Statutes and the New Legal Process, 35 STAN. L. REV. 213 (1983).
162 See, e.g., Ruiz v. Estelle, 503 F. Supp. 1295 (S.D. Tex. 1980) (entire Texas prison 
system); Gates v. Collier, 349 F. Supp. 881 (N.D. Miss. 1972), aff’d, 501 F.2d 1291 (5th 
Cir. 1974) (many specific practices at Parchman Farm, Mississippi); Holt v. Sarver, 309 
F. Supp. 362 (E.D. Ark. 1970), aff’d, 442 F.2d 304 (8th Cir. 1971) (entire Arkansas prison
system). See JUDICIAL POLICY MAKING, supra note 27, at 51–95 (same).
163 See JUDICIAL POLICY MAKING, supra note 27, at 149–77; DAVID M. OSHINSKY, 
“WORSE THAN SLAVERY”: PARCHMAN FARM AND THE ORDEAL OF JIM CROW JUSTICE 
(1996). 
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states,164 or found that particular practices in these states were 
unconstitutional on other grounds.165  
These decisions, which often made use of special masters to 
redesign the operations of the state’s entire prison system, represent 
the extreme limits of active judicial intervention within the legal 
process framework.166 The effort, however, was far from complete. 
The courts did not reach the problem of mass incarceration, which is 
not only an abuse in itself but also undermined the reforms that had 
been achieved, much like a developing nation whose economic gains 
are negated by uncontrolled population growth. Moreover, they failed 
to follow through with the reforms they originally instituted. There 
was, for example, no word from any federal court when California 
complied with a Supreme Court order to reduce its prison population 
by redirecting many prison-bound and prison-housed felons to local 
jails, which generally feature worse conditions and fewer recreational, 
vocational, and educational programs.167  
Courts have been even more reluctant to address the 
institutionalized brutality and racism of state and local police 
departments.168 While doing so would also have fallen short of a 
comprehensive solution,169 it might have eliminated some of the 
164 See, e.g., Madrid v. Gomez, 889 F. Supp. 1146 (N.D. Cal. 1995) (declaring 
conditions at Secured Housing Unit at Pelican Bay Prison unconstitutional); Ramos v. 
Lamm, 485 F. Supp. 122 (D. Colo. 1980) (declaring conditions at the maximum-security 
unit of Colorado State Penitentiary unconstitutional). 
165 See, e.g., Hewitt v. Helms, 459 U.S. 460 (1983) (constitution requires state to 
follow state statutes that provided prisoner rights to a hearing before being sent to solitary 
confinement); Vitek v. Jones, 445 U.S. 480 (1980) (prisoner cannot be transferred to a 
mental institution without notice and a hearing). 
166 JUDICIAL POLICY MAKING, supra note 27, at 204–96. 
167 See Brown v. Plata, 563 U.S. 493 (2011) (ordering California to reduce prison 
population); Jonathan Simon, Mass Incarceration on Trial, 13 PUNISHMENT & SOC’Y 251 
(2011); Margo Schlanger, Plata v. Brown and Realignment: Jails, Prisons, Courts, and 
Politics, 48 Harv. C.R.-C.L. L. Rev. 165 (2013) (describing transfer to jails).  
168 See Rizzo v. Goode, 423 U.S. 362 (1976) (reversing lower court decisions finding a 
pattern of unconstitutional discrimination and abuse by Philadelphia police officials). The 
case relied on what Alexander Bickel, in one of the classic works of the legal process 
school, called the “passive virtues.” See BICKEL, supra note 161 (recommending that 
courts use technical legal doctrines such as standing, justiciability, political questions, and 
federalism to avoid deciding controversial cases so that the controversy can be resolved by 
the political process). For a leading critique of this proposal, see Gerald Gunther, The 
Subtle Vices of the “Passive Virtues” — A Comment on Principle and Expediency in 
Judicial Review, 64 COLUM. L. REV. 1 (1964). 
169 For a relatively optimistic account of the role of lower courts in fostering more 
modern and tighter bureaucratic administration of police departments, see EPP, supra note 
304 OREGON LAW REVIEW [Vol. 100, 261 
worst practices, practices which were instead allowed to fester and 
explode into situations like the murder of George Floyd.170 Congress 
attempted to encourage judicial supervision by enacting the Law 
Enforcement Misconduct Statute authorizing the Department of 
Justice to bring civil rights suits against police departments,171 but the 
department has been reluctant to make use of this provision.172 In 
contrast, the one area where the courts were willing to promote 
genuine institutional reforms proved unpalatable for Congress, which 
enacted the Prison Litigation Reform Act for the sole purpose of 
making prisoner suits regarding conditions of confinement more 
difficult for prisoners to file and easier for corrections officials to 
oppose.173 
A less visible, but nonetheless significant, effort to use 
constitutional principles to reform criminal law was the development 
of a code of criminal procedure that could be administered and 
overseen by appellate court judges. The American Bar Foundation’s 
(ABA) Criminal Justice Standards project, which produced twenty-
four volumes of standards between 1964 and the early 2000s for 
virtually every phase of the criminal process, was designed to foster 
professional standards internal to the many and separate criminal 
74 (arguing large payouts in constitutional torts awards and settlements force mayors and 
city councils to adopt better bureaucratic oversight and management).  
170 See FRANKLIN E. ZIMRING, WHEN POLICE KILL (2017) (hyper-fragmentation of 
police departments all but precludes meaningful oversight). In his study, completed before 
the Floyd murder, he estimates that of the 1000 killings by police every year, about fifty 
could be characterized as murder but are never prosecuted. Less than a decade after the 
Rizzo decision, the Philadelphia police demonstrated the decision’s abnegation of 
responsibility when they dropped a military-grade bomb on the home of some radical 
environmentalists in an African American neighborhood, incinerating eleven people and 
destroying sixty-five homes in the community. See MICHAEL BOYETTE & RANDI 
BOYETTE, LET IT BURN: MOVE, THE PHILADELPHIA POLICE DEPARTMENT, AND THE 
CONFRONTATION THAT CHANGED A CITY (1989); ROBIN WAGNER-PACIFICI, DISCOURSE 
AND DESTRUCTION: THE CITY OF PHILADELPHIA VERSUS MOVE (1994). 
171 34 U.S.C. § 12601. 
172 See Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing 
Reform, 62 STAN. L. REV. 1 (2009). 
173 Prison Litigation Reform Act of 1996, 42 U.S.C. § 1997e (requiring exhaustion of 
grievance procedures and payment of fees for suits by prisoners, and providing that a 
motion to terminate prospective relief shall automatically stay such relief). With respect to 
the purpose and effect of the Act, see John Boston, The Prison Litigation Reform Act: The 
New Face of Court Stripping, 67 BROOK. L. REV. 429 (2001); Joseph T. Lukens, The 
Prison Litigation Reform Act: Three Strikes and You’re Out of Court—It May Be Effective, 
But Is It Constitutional?, 70 TEMP. L. REV. 471 (1997); Kermit Roosevelt III, Exhaustion 
Under the Prison Litigation Reform Act: The Consequence of Procedural Error, 52 
EMORY L.J. 1771 (2003). 
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justice agencies, and to assist the courts in overseeing the 
administration of criminal justice.174 Similarly, in 1971, the 
Department of Justice established the National Advisory Commission 
on Criminal Justice Standards and Goals to advise on how to improve 
state criminal justice agencies. The group of twenty-two members 
conducted multiple studies over two years and published over 400 
recommendations in a series of final reports issued in 1973.175 The 
Department of Justice also financed the establishment of state 
commissions, convened to consider the Commission’s 
recommendations, and to adapt them to the distinctive features of 
their states.176 Significantly, as one close observer of the Commission 
observed, “the Commission seemed to envision no structural or 
hierarchical linkages between system components, relying on cross 
system planning and improved information and communication 
capabilities to achieve coordination within the ‘nonsystem.’”177 It is 
not clear if any of these and similar efforts have made any difference. 
They were directed at fragmented institutions and did little or nothing 
to overcome the discontinuities and pathologies that flow from their 
fragmentation. The standards were no doubt good ideas, but put 
simply, there was no one to implement them.  
B. Professionalism
Professionalization of the various actors in the criminal justice 
system was a second reform strategy.178 Indeed, the standards projects 
174 For a review of the history and scope of this enterprise, see Kenneth J. Hodson, The 
American Bar Association Standards for Criminal Justice: Their Development, Evolution 
and Future, 59 DENV. L.J. 3 (1981); Rory K. Little, The ABA’s Project to Revise the 
Criminal Justice Standards for the Prosecution and Defense Functions, 62 HASTINGS L.J. 
1111 (2010).  
175 NAT’ ADVISORY COMM’N ON CRIM. JUST. STANDARDS AND GOALS, A NATIONAL 
STRATEGY TO REDUCE CRIME (1973) (overall report and recommendations); NAT’L 
ADVISORY COMM’N ON CRIM. JUST. STANDARDS AND GOALS, REPORT ON POLICE 
(1973); NAT’L ADVISORY COMM’N ON CRIM. JUST. STANDARDS AND GOALS, REPORT ON 
COURTS (1973); NAT’L ADVISORY COMM’N ON CRIM. JUST. STANDARDS AND GOALS, 
REPORT ON CORRECTIONS (1973); NAT’L ADVISORY COMM’N ON CRIM. JUST. 
STANDARDS AND GOALS, REPORT ON COMMUNITY CRIME PREVENTION (1973). As is 
apparent from the titles, this was a far-reaching, comprehensive effort. 
176 ISIDORE SILVER, NAT’L ADVISORY COMM’N ON CRIM. JUST. STANDARDS AND 
GOALS, A NATIONAL STRATEGY TO REDUCE CRIME ii–xv (1975). 
177 Daniel L. Skoler, Standards for Criminal Justice Structures and Organization: The 
Impact of the National Advisory Commission, 2 CRIM. JUST. REV. 1 (1977).  
178 See generally ANDREW ABBOTT, THE SYSTEM OF PROFESSIONS: AN ESSAY ON THE 
DIVISION OF EXPERT LABOR (1988); ELIOT FREIDSON, PROFESSIONALISM REBORN: 
306 OREGON LAW REVIEW [Vol. 100, 261 
discussed above were directed to a sense of professionalism as well as 
to constitutional concerns. Efforts to professionalize the police helped 
root out some of the worst forms of corruption and led to command 
and control structure, which was beneficial in some ways but also 
undermined preventive problem-solving approaches to policing.179 
The push to eliminate the fee system to finance the courts was largely 
successful and had salutary results,180 though there has been 
considerable backsliding in recent years.181 Campaigns to get rid of 
elected judges have failed, though the worst abuses of patronage and 
rank bias have been abated, at least in most places.182 Jails and 
prisons have been dragged out of the feudal or antebellum patterns 
that were common into the 1970s by the federal courts,183 but the 
treatment and therapeutic staff that have been added remain on the 
periphery in terms of policy making and budget. Little has been done 
to counter the propensity of county-based officials to ship offenders 
off to state prisons to decrease county expenses.184  
Professionalism is generally an overrated form of self-regulation 
and ill-suited to foster coordination and cooperation in a fragmented 
THEORY, PROPHECY AND POLICY (1994); MAGALI SARFATTI LARSON, THE RISE OF 
PROFESSIONALISM: A SOCIOLOGICAL ANALYSIS (1977). With respect to the role of 
professionalism in the legal profession, see ROBERT FELDMAN, PROFESSIONALISM AND 
VALUES IN LAW PRACTICE (2021).  
179 See HERMAN GOLDSTEIN, PROBLEM-ORIENTED POLICING (1990); LAWRENCE W. 
SHERMAN, POLICING DOMESTIC VIOLENCE: EXPERIMENTS AND DILEMMAS (1992); 
ROBERT E. WORDEN & SARAH J. MCLEAN, MIRAGE OF POLICE REFORM: PROCEDURAL 
JUSTICE AND POLICE LEGITIMACY (2017). Police reform can be fairly described as a 
perpetual issue, see SAMUEL WALKER, A CRITICAL HISTORY OF POLICE REFORM (1977) 
(documenting successive police reform efforts from the nineteenth century to 1940), and 
thus produces a sense of pointless repetition. 
180 Ward v. Village of Monroeville, 409 U.S. 57 (1972) (due process clause is violated 
when fines for traffic offenses that a village judge adjudicates provide a significant portion 
of the village’s revenue). See NICHOLAS R. PARRILLO, AGAINST THE PROFIT MOTIVE: 
THE SALARY REVOLUTION IN AMERICAN GOVERNMENT, 1780–1940, at 51–79 (2013). 
181 See, e.g., Maybell Romero, Profit-Driven Prosecution and the Competitive Bidding 
Process, 107 J. CRIM. L. & CRIMINOLOGY 161, 209 (2017); MATTHEW MENENDEZ ET AL., 
BRENNAN CTR. FOR JUST., THE STEEP COSTS OF CRIMINAL JUSTICE FEES AND FINES: A 
FISCAL ANALYSIS OF THREE STATES AND TEN COUNTIES (2019). See also supra note 95 
(citing sources on prevalence of court fees). 
182 See Franklin, supra note 103; Geyh, supra note 103; Roy A. Schotland, To the 
Endangered Species List, Add: Nonpartisan Judicial Elections, 39 WILLAMETTE L. REV. 
1397 (2003). In fact, the Supreme Court made matters worse with its decision in 
Republican Party of Minnesota v. White, 536 U.S. 765 (2002) (First Amendment forbids 
state from limiting issues on which candidates for judicial office campaign). 
183 See supra pp. 277–78.  
184 PFAFF, supra note 26, at 142–43. Pfaff refers to this as the moral hazard problem. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 307 
Courts, and Prisons to a Modern Administrative Agency
system.185 One example of its intrinsic limitations involves the police. 
It is certainly desirable to demand that recruits have more credentials, 
that supervision becomes more extensive, and that corruption is 
eliminated. These efforts, however, do not effectively combat 
underlying problems such as endemic racism or an adversarial stance 
toward the community.186 At least one version of professionalism 
encourages a facially neutral and emotionally distant relationship with 
citizens, as opposed to racial awareness training, community 
engagement, and the inclusion of civilian representatives into 
decision-making settings.187 
A second example of professionalization is the United States 
Sentencing Commission, an independent agency within the judicial 
branch of the federal government.188 It was established in the wake of 
attacks on indeterminate sentencing,189 concerns about lawlessness in 
185 See SARFATTI LARSON, supra note 178 (failure of professions to engage in 
effective self-regulation); Richard L. Abel, Lawyer Self-Regulation and the Public 
Interest: A Reflection, 20 LEGAL ETHICS 115 (2017) (same). 
186 See ALEXANDER, supra note 26, at 97–139; Joshua Correll et al., Across the Thin 
Blue Line: Police Officers and Racial Bias in the Decision to Shoot, 92 J. PERSONALITY & 
SOC. PSYCH. 115 (2007); Renée McDonald Hutchins, Racial Profiling: The Law, the 
Policy, and the Practice, in POLICING THE BLACK MAN: ARREST, PROSECUTION, AND 
IMPRISONMENT 95 (Angela J. Davis ed., 2017); E. Ashby Plant & B. Michelle Peruche, 
The Consequences of Race for Police Officers’ Responses to Criminal Suspects, 16 
PSYCH. SCI. 180 (2005); L. Song Richardson, Police Racial Violence: Lessons from Social 
Psychology, 83 FORDHAM L. REV. 2961 (2015); Katherine Russell-Brown, Making 
Implicit Bias Explicit: Black Men and the Police, in POLICING THE BLACK MAN, supra at 
135. Compstat is a program that purports to displace implicit attitudes with rational,
evidence-based decisions. See infra note 200. But the cover illustration of the U.S.
Department of Justice’s Bureau of Justice Assistance publication describing the program,
see id., shows what appears to be a Compstat meeting of about twenty-five people and
nearly all the participants are white, and in fact white males.
187 One era’s reform often becomes the next era’s problem. Quasi-military command 
and control police departments were thought to be the solution to police corruption and 
abuse in the 1920s, and vigorously advanced by August Vollmer, one of America’s 
leading police reformers at the time. See AUGUST VOLLMER, THE POLICE AND MODERN 
SOCIETY (1936); WILLARD M. OLIVER, AUGUST VOLLMER: THE FATHER OF AMERICAN 
POLICING (2017). His success in reforming the police led to an invitation to found and 
then direct UC Berkeley’s School of Criminology, which then produced a series of 
graduates who distinguished themselves in this form of police professionalism. See Julian 
Go, The Imperial Origins of American Policing: Militarization and Imperial Feedback in 
the Early 20th Century, 125 AM. J. SOCIO. 1193 (2020). The problems with this approach 
have now become apparent. 
188 Created by the Comprehensive Crime Control Act of 1984, Pub. L. No. 98–473, 98 
Stat. 2017 (codified in scattered sections of 18 U.S.C.). 
189 See, e.g., AM. FRIENDS SERV. COMM., STRUGGLE FOR JUSTICE: A REPORT ON 
CRIME AND PUNISHMENT IN AMERICA (1971). 
308 OREGON LAW REVIEW [Vol. 100, 261 
sentencing,190 and experiments that showed judges giving widely 
varying sentences to the same offender for the same offense.191 The 
Commission, as originally created, had all the hallmarks of 
professionalism: a clear mission, highly credentialed leadership, a 
large and competent staff, and generous resources.192 Within a year or 
two, it had developed a grid that took into account both the 
seriousness of offense and the prior record of the offender.193 What it 
did not take into account was that its grid would have the effect of 
increasing the lengths of sentences and would empower prosecutors 
to drive harder plea bargains.194 Here again, professionalization of 
one component of the criminal justice system unexpectedly elicited 
barbarity in others as a result of a culture whose equilibrium has been 
achieved through ad hoc or traditionalist responses.195 
But the problem with professionalization runs still deeper. As a 
general strategy, it encourages each group within the criminal justice 
system to elaborate and intensify its own particular practices, without 
coordinating or creating linkages with other groups. In fact, it might 
190 See, e.g., Marvin E. Frankel, Lawlessness in Sentencing, 41 U. CINCINNATI L. REV. 
1 (1972).  
191 ANTHONY PARTRIDGE & WILLIAM B. ELDRIDGE, FED. JUD. CTR., THE SECOND 
CIRCUIT SENTENCING STUDY: A REPORT TO THE JUDGES OF THE SECOND CIRCUIT 
(1974). 
192 See Paula J. Desio, Introduction to Organizational Sentencing and the U.S. 
Sentencing Commission, 39 WAKE FOREST L. REV. 559 (2004); Andrew von Hirsch, The 
Sentencing Commission’s Functions, in ANDREW VON HIRSCH ET AL., THE SENTENCING 
COMMISSION AND ITS GUIDELINES 3 (1987); Brent E. Newton & Dawinder S. Sidhu, The 
History of the Original United States Sentencing Commission, 1985–1987, 45 HOFSTRA L. 
REV. 1167 (2017). 
193 See Andrew von Hirsch, Numerical Grids or Guiding Principles?, in THE 
SENTENCING COMMISSION AND ITS GUIDELINES, supra note 192, at 47; Aaron J. 
Rappaport, Rationalizing the Commission: The Philosophical Premises of the U.S. 
Sentencing Guidelines, 52 EMORY L.J. 557 (2003). 
194 See Albert W. Alschuler, The Failure of Sentencing Guidelines: A Plea for Less 
Aggregation, 58 U. CHI. L. REV. 901, 926 (1991); Richard S. Frase, Forty Years of 
American Sentencing Guidelines: What Have We Learned?, in AMERICAN SENTENCING—
WHAT HAPPENS AND WHY? 79 (Michael Tonry ed., 2019); Michael Tonry, The Failure of 
the U.S. Sentencing Commission’s Guidelines, 39 CRIME & DELINQUENCY 131, 146–48 
(1993).  
195 Perhaps it is too charitable to the Commission to describe it as unable to see these 
consequences. Other provisions of the statute that created the Commission, see supra note 
188, increased penalties for growing, possessing, and selling marijuana; abolished parole 
for federal prisoners; and enhanced penalties for firearm possession in language so vague 
that it was struck down by the Supreme Court in Johnson v. United States, 576 U.S. 591 
(2015). Given the mood that these other provisions of the statute reflected, it might have 
been entirely predictable that the Commission’s efforts would provide an excuse for 
unreasonably harsher punishments.  
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be argued that creating a unified, coherent criminal justice system 
requires a decrease in professionalism, not in the sense of returning to 
the patronage-based, amateurish approach of the premodern era, but 
in the sense that we need new norms that relate to people’s 
performance in the system as a whole. For example, the adversarial 
behavior that is associated with the professionalism of trial attorneys 
such as prosecutors needs to be modified so that they can consider 
issues external to the determination of guilt or innocence, such as the 
carrying capacity of the system or the availability of alternative 
treatments.196 Such considerations should not be shunned or 
disparaged as a departure from a professional norm, but encouraged 
as effective administrative behavior within a comprehensively 
managed system.  
C. Rationalization
A third reform effort that seeks to impose systemic control over the 
criminal process is rationalization. This is a complex term, of course. 
A widely used analysis, which comes from Weber, is that it can refer 
to either instrumental or normative action.197 Instrumentally rational 
action is directed to effective achievement of an identified goal, 
which itself can be either instrumental or normative.198 In the context 
of this discussion, rationality would consist of actions that resolve the 
previously discussed conflict between the deterrent goal of criminal 
196 The prosecutor’s knowledge of available resources is one of the principal reasons 
given for prosecutorial discretion. See United States v. Lovasco, 431 U.S. 783 (1977) 
(declining to exercise judicial oversight on prosecutorial discretion because it would 
impose an impractical administrative burden); Rachel E. Barkow, The Ascent of the 
Administrative State and the Demise of Mercy, 121 HARV. L. REV. 1332, 1354 (2008); 
Stephanos Bibas, The Need for Prosecutorial Discretion, 19 TEMP. POL. & C.R. L. REV. 
369 (2010); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision 
Not to Prosecute, 110 COLUM. L. REV. 1655, 1664–66 (2010). But the political and 
adversarial pressures on prosecutors often leads to the opposite result. Prosecutors may be 
attuned to the limits on their own resources, but their other motivations lead them to ignore 
the resource limitations in the subsequent stages of the criminal process, such as trials, 
corrections, and probation services. See id. at 1666–69; BUTLER, supra note 112, at 114–
20; PFAFF, supra note 26, at 127–60; Gordon & Huber, supra note 101. 
197 For present purposes, the term “action” can be used in its ordinary language sense. 
For more extended discussions of this concept in the social science context, see 
HABERMAS, supra note 50, at 84–101; WEBER, supra note 11, at 22–24. 
198 WEBER, supra note 11, at 24–26. For an extended discussion, see HABERMAS, 
supra note 50, at 143–271 (analysis of Weber’s theory of rationality, and application of 
that theory to provide the basis of the conceptual integration of society fractured by 
modernity). 
310 OREGON LAW REVIEW [Vol. 100, 261 
law and the current practices that are so heavily influenced by 
premodern attitudes and render criminal law disproportionate, overly 
punitive, and coercive.  
One effort to rationalize criminal law in this sense is based on 
concepts developed in operations research, insurance, and risk 
management, often through the use of computer programs.199 With 
respect to policing, an example is the deployment of officers on the 
basis of a formula that identifies high-crime areas and predicts the 
preventative effect of assigning police officers to those areas, rather 
than basing their assignments on intuition, opportunities for handing 
out traffic tickets, or other considerations.200 More generally, the 
concept of evidence-based policing that has become prominent in 
recent decades can be seen as an effort to rationalize police 
practices.201 With respect to jails, Congress passed the 1984 Bail 
Reform Act,202 which included concern for the risk of crime in 
addition to the risk of flight when setting conditions of pretrial 
release. Since then, virtually every state has embraced the concept,203 
again using computer programs and “big data” bases as the means of 
prediction.204 For judges, algorithms have been developed that use 
199 For a general explication of this approach, see Malcolm M. Feeley & Jonathan 
Simon, The New Penology: Notes on the Emerging Strategy of Corrections and Its 
Implications, 30 CRIMINOLOGY 449 (1992); Malcolm M. Feeley, Actuarial Justice and the 
Modern State, in PUNISHMENT, PLACES AND PERPETRATORS: DEVELOPMENTS IN 
CRIMINOLOGY AND CRIMINAL JUSTICE RESEARCH 62 (Gerben Bruinsma et al. eds., 
2011). 
200 See BUREAU OF JUST. ASSISTANCE, COMPSTAT: ITS ORIGINS, EVOLUTION, AND 
FUTURE IN LAW ENFORCEMENT AGENCIES (2013). Compstat is a performance 
management system developed by the New York City Police Department that is focused 
on information sharing. According to the publication, “[t]he most widely recognized 
element of Compstat is its regularly occurring meetings where department executives and 
officers discuss and analyze crime problems and the strategies used to address those 
problems.” Id. at 2. See FRANKLIN E. ZIMRING, THE CITY THAT BECAME SAFE: NEW 
YORK’S LESSONS FOR URBAN CRIME AND ITS CONTROL 173–95 (2012). 
201 See generally EVIDENCE BASED POLICING: AN INTRODUCTION (Renée J. Mitchell 
& Laura Huey eds., 2019); EVIDENCE-BASED CRIME PREVENTION (Lawrence W. 
Sherman et al. eds., 2002); Lawrence W. Sherman, The Rise of Evidence-Based Policing: 
Targeting, Testing, and Tracking, 42 CRIME & JUST. 377 (2013). 
202 Bail Reform Act of 1984 18 U.S.C. §§ 3141–3156. For a summary of the Act and 
an analysis of its provisions, see FED. JUD. CTR., THE BAIL REFORM ACT OF 1984 (2nd ed. 
1993). 
203 See Koepke & Robinson, supra note 94, at 1740–42. In United States v. Salerno, 
481 U.S. 739 (1987), the Supreme Court upheld the preventive detention provision in the 
1984 Bail Act, and by extension, equivalent state provisions.  
204 See ANDREW GUTHRIE FERGUSON, THE RISE OF BIG DATA POLICING: 
SURVEILLANCE, RACE, AND THE FUTURE OF LAW ENFORCEMENT (2017); Andrew Guthrie 
Ferguson, Policing Predictive Policing, 94 WASH. U. L. REV. 1109, 1112–14 (2017); 
2022] Criminal Justice Through Management: From Police, Prosecutors, 311 
Courts, and Prisons to a Modern Administrative Agency
empirical data to predict the likelihood of reoffending, and these can 
be used to replace guesswork or prejudice in sentencing 
determinations.205 The standards of the American Correctional 
Association (ACA), a private nonprofit trade organization founded 
some 150 years ago, can be regarded as an ongoing effort to 
rationalize prisons.206 They consistently oppose vestiges of the 
medieval dungeon and the American slave plantation such as corporal 
punishment, food deprivation, and the use of prisoners as guards. 
They favor regularity, fairness, education, vocational training, and 
other features directed toward turning the inmates into law abiding 
citizens. To a significant extent, the extensive prison reform cases of 
the 1960s, 70s and 80s represented an effort by federal judges to 
impose the ACA standards on southern prisons that were still being 
run as slave plantations.207 
These efforts achieved some successes. Franklin Zimring argues 
that New York’s computerized system for assigning police is 
responsible for the dramatic decline in its crime rate compared to 
other large cities.208 The egregious abuses of the southern prison 
systems have been curbed, and their premodern savagery replaced by 
practices largely similar to those in other regions of the nation.209 The 
successes, however, are counterbalanced by troublesome failures. The 
police continue their racist and excessively violent behavior when 
they reach their computer-assigned destination. Sentencing algorithms 
have often failed to predict recidivism accurately but succeeded in 
preserving racial bias.210 The abuses derived from the premodern 
modes of incarceration have been eliminated, only to be replaced by 
modern ones, most notably the horrific overcrowding that results from 
Elizabeth E. Joh, Policing by Numbers: Big Data and the Fourth Amendment, 89 WASH. 
L. REV. 35 (2014).
205 For a comprehensive analysis, see CHRISTOPHER SLOBOGIN, JUST ALGORITHMS:
USING SCIENCE TO REDUCE INCARCERATION AND INFORM A JURISPRUDENCE OF RISK 
(2021).  
206 JUDICIAL POLICY MAKING, supra note 27, at 162–63, 369–74. 
207 Id. at 103–05, 162–66, 370–72. 
208 ZIMRING, supra note 200, at 103–49. 
209 JUDICIAL POLICY MAKING, supra note 27. 
210 See KATHERINE B. FORREST, WHEN MACHINES CAN BE JUDGE, JURY, AND 
EXECUTIONER: JUSTICE IN THE AGE OF ARTIFICIAL INTELLIGENCE (2021); Jed. S. Rakoff, 
Sentenced by Algorithm, N.Y. REV., June 10, 2021 (reviewing Forrest, supra). This is not 
to suggest, of course, that algorithms are the only, or even the most serious, source of bias. 
See Nick Petersen & Marisa Omori, Is the Process the Only Punishment?: Racial–Ethnic 
Disparities in Lower‐Level Courts, 42 L. & POL’Y 56 (2020). 
312 OREGON LAW REVIEW [Vol. 100, 261 
mass incarceration, with the vocational and recreational facilities 
courts demanded in the prison reform cases now converted into 
makeshift dormitories.  
There are, undoubtedly, many reasons for this spotty record on 
what should be an effective approach to criminal justice reform, but a 
main one seems to be a lack of monitoring and supervision. An 
institution that decides on a particular instrumentality will often try to 
justify that approach even when it fails to achieve its intended result. 
Thus, what began as an attempt to rationalize its operations becomes 
an irrational, politically motivated policy of avoiding criticism or 
disruption for its failure. Failure itself is not a sign of irrationality. 
Crime prevention is a challenging task, and we are far from having all 
the answers that we need. What is truly irrational is to perpetuate an 
ineffective approach, rather than admitting failure and trying 
something different. The remedy is a supervisory structure with the 
authority to insist on real rationality, that is, instrumental strategies 
that actually work. 
A promising start in this direction came from another 
rationalization effort, the Law Enforcement Assistance Administration 
(LEAA) created by Congress in 1968.211 It established State Planning 
Agencies (SPAs), which in turn could improve coordination and 
cooperation by offering grants to state and local criminal justice 
agencies. Had the federal effort been substantial enough, perhaps 
the SPAs might have evolved into true ministries of justice, which 
either administered the entire criminal justice system in the state or at 
least guided and coordinated it by awarding (or denying) special 
funding.212 However, funding remained limited and the SPAs quickly 
came to be dominated by existing criminal justice agencies, which did 
not want to be told how to do business and only sought their share of 
the pie.213 As the federal War on Poverty morphed into the War on 
Crime, an increasingly conservative Congress withdrew funding from 
this potentially transformative agency and in 1982 abolished the 
agency itself by eliminating its funding from the federal budget.214 In 
211 Created by the Omnibus Crime Control and Safe Streets Act of 1968, Pub. L. 90–
351, 82 Stat. 197 (codified at 34 U.S. § 10101 et seq.). 
212 See MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL 
CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, 1968-1978 
(1980).  
213 See Milton G. Rector & Joan Wolfle, The Law Enforcement Assistance 
Administration in Perspective, 5 COLUM. HUM. RTS. L. REV. 55, 58–59 (1973). 
214 See Records of the Law Enforcement Assistance Administration [LEAA], NAT’L 
ARCHIVES (Aug. 15, 2016), https://www.archives.gov/research/guide-fed-records/groups 
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Courts, and Prisons to a Modern Administrative Agency
some jurisdictions, the residue of the LEAA-fostered planning 
agencies continue to function as “criminal justice coordinating 
councils,” but they serve largely as reminders of how fragmented and 
incoherent the criminal justice system is.215 They do, however, 
suggest a path forward, which we will discuss in the following 
section. 
IV 
WHERE WE SHOULD GO 
As mentioned above, the idea of reconceiving criminal justice as an 
administrative program was proposed by Frank Remington more than 
half a century ago. Since then, several scholars, notably Rachel 
Barkow and Gerard Lynch, have written about criminal law as 
regulation,”216 and “our administrative system of criminal justice.”217 
Despite these insightful discussions, we believe that the idea requires 
further development. The “administrative system” that Judge Lynch 
writes about is basically an organizational analysis of the U.S. 
Attorney’s Office in the Southern District of New York, which has 
developed policies and priorities modeled after the Securities and 
Exchange Commission’s (SEC) investigative division. This 
isomorphism is not surprising since most of the important work of 
prosecutors in the Southern District deals with the same issues and 
often the same cases that the SEC does. This office is the most 
distinctive prosecutor’s office in the country, and we are not sure it 
serves as much of a model for “our criminal justice system.” 
Professor Barkow advances a number of recommendations that would 
be highly beneficial; she urges judges to reassert themselves in order 
to counter the dominance of prosecutors, admonishes sentencing 
commissions to be more aggressive in addressing racial disparities in 
/423.html#423.1 [https://perma.cc/J6DF-2F84]. The LEAA was replaced, within the 
Department of Justice, by the Office of Justice Assistance, Research, and Statistics, which 
became the Office of Justice Programs. 
215 One partial exception is the Criminal Justice Agency in New York City. With the 
backing of the mayor, it has spoken authoritatively about some of the crises that have 
plagued the city’s criminal courts, and at times has made a difference. See STEVEN 
BELENKO, PRETRIAL SERVICES IN CRIMINAL COURT: AN EVALUATION OF THE NEW 
YORK CITY CRIMINAL JUSTICE AGENCY (1980). One is hard pressed to find another such 
agency in the United States.  
216 See Barkow, Criminal Law as Regulation, supra note 30; Administering Crime, 
supra note 30. See also CHIAO, supra note 30; Kahan, supra note 30; Richman, supra note 
30; Slobogin, supra note 30; Wright, supra note 30. 
217 See Lynch, supra note 30. 
314 OREGON LAW REVIEW [Vol. 100, 261 
sentences, criticizes funders for not providing public defenders with 
enough resources, and asks the public to be more deferential to the 
expertise of criminal justice professionals.218 But these discussions 
generally fit into the category of rationalization described above; they 
move the system in the right direction, but do not address the 
pathological qualities that hyper-fragmentation has institutionalized, 
nor do they envision the structural means for imposing bureaucratic 
control over currently fragmented and autonomous institutions. In 
effect, both Lynch and Barkow apply administrative principles to 
units within the system as presently structured, rather than applying 
administrative and organization theory to restructure the entire system 
as an administrative agency.  
John Braithwaite provides a more thorough account of an 
administrative approach to criminal justice.219 Conceptually, it is 
coherent,220 but in practice it is in fact an argument for only one 
possible form of criminal justice as administration. His adaptation of 
the responsive regulation model221 to the criminal justice system is 
largely designed to implement a restorative justice approach. As 
developed, it too does not offer an institutionally focused analysis. It 
presents the substance of a particular form of regulatory justice 
without describing the shell into which it fits. The structural proposal 
we advance certainly accommodates, and potentially encourages, 
this rather controversial reform,222 but does not depend on it. 
Furthermore, our concern is with developing the shell or structure into 
which particular substantive forms of regulatory criminal justice can 
be inserted. Substance is important, but without an effective and 
integrated structure for production and delivery, it can easily be 
abused and distorted beyond recognition.  
A. Creating an Agency
What we propose is simply that criminal justice be treated as another 
form of government regulation. It should no longer be regarded as a 
218 BARKOW, supra note 26, at 139–201. 
219 Braithwaite, supra note 49. 
220 See JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION (1989); John 
Braithwaite & Heather Strang, Introduction: Restorative Justice and Civil Society, in 
RESTORATIVE JUSTICE AND CIVIL SOCIETY 1 (Heather Strang & John Braithwaite eds., 
2001); Braithwaite, supra note 49; John Braithwaite, Restorative Justice: Assessing 
Optimistic and Pessimistic Accounts, 25 CRIME & JUST. 1 (1999). 
221 AYRES & BRAITHWAITE, supra note 56. 
222 See infra pp. 346–48. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 315 
Courts, and Prisons to a Modern Administrative Agency
central or defining function of a modern state, but rather as another 
service that an administrative government provides to the populace.223 
It thus takes its place alongside domestic functions such as public 
health, education, housing environmental protection, consumer 
protection, and the regulation of financial markets. These other 
functions are almost always carried out by a single, hierarchical 
agency with comprehensive responsibility and at least an expectation 
that it will develop a unified strategy with internal coordination. The 
same should be the case for crime control. Conceding the 
complexities of federalism and the limits on developing the national 
approach used in most other advanced nations, each American state 
needs a comprehensive administrative agency to manage criminal 
justice and justify its designation as a system. The agency’s 
organizing mission should be to prevent crime, rather than mixing this 
goal with older ones such as imposing moral judgments or expressing 
public anger.  
The structure of an administrative agency is familiar. Its defining 
features, according to Weber’s classic formulation, are possessing a 
specified jurisdiction; employing a full-time staff who are chosen 
based on credentials or experience; having a hierarchical 
organizational structure; and maintaining permanent files or 
records.224 In fact, the familiarity of this institution serves as a 
separate argument for its use in criminal justice—it is our society’s 
standard response to problems of governance, and thus constitutes a 
structure that has been tested by experience and that modern people 
understand and know how to operate.  
More specifically, a criminal justice agency could be either an 
executive department with a single politically appointed and 
politically accountable chief administrator, or an independent agency 
with a politically appointed board or collegium whose members serve 
for fixed terms and are removable only for cause. The agency should 
have comprehensive authority over all stages of the criminal law 
process, including functions now assigned to police, prosecutors, 
public defenders, judges, correctional officials, parole officers, and 
223 See DAVID GARLAND, PUNISHMENT AND WELFARE (1985) (model of criminal 
justice in late nineteenth and early twentieth century England was nested in and part of the 
more general architecture of the then-modern welfare state). That approach failed in 
general because it was not sufficiently developed and institutionalized, and its criminal 
justice component failed to an even greater degree because it was not supported by the 
type of structural arrangements this Article deems critical for success.  
224 WEBER, supra note 11, at 215–23, 958–63. See BENDIX, supra note 40, at 423–30. 
316 OREGON LAW REVIEW [Vol. 100, 261 
related government employees. All its functions would be carried out 
by groups of staff whose strategies are planned, whose actions are 
coordinated, and whose behaviors are supervised. The result would be 
a large agency relative to each state, but large in absolute terms only 
for the most populous states, and in no state as large as some of the 
federal agencies that are centrally administered, such as the 
Departments of Veterans Affairs or Homeland Security, to say 
nothing of the Department of Defense.225  
Because the agency would have power to deprive citizens of liberty 
as well as property, the laws that it administers—that is, the criminal 
laws—should be precisely prescribed by the legislature, as should the 
maximum liberty deprivation, that is, the maximum sentence length. 
But the agency should possess broad rulemaking authority in other 
areas. It should be able to prescribe hiring criteria for all employees, 
protocols for all investigatory and complaint response functions in the 
community, strategies for dealing with all persons detained and 
accused, both before and after a determination of guilt, and resource 
allocation at all levels of the system. The right to go to trial and 
compel the government to prove one’s guilt according to the criminal 
law standard of proof would remain the same, of course. It would 
probably be best to leave the judges who preside over these trials in 
an organizationally separate structure, but this would be largely a 
matter of optics.226 There is no reason why they could not function as 
225 As of 2020, California had the largest number of sworn police officers, about 
78,000. See Ben Loudermilk, Which State Has the Most Police Officers?, WORLD ATLAS 
(Apr. 25, 2017), https://www.worldatlas.com/articles/u-s-states-with-the-most-police-and 
-law-enforcement-personnel.htm [https://perma.cc/9ZD6-M6YH]. It has the second most
corrections officials, about 38,000 (Texas had 47,000). See Occupational Employment and
Wages, May 2020, U.S. BUREAU OF LAB. STAT. (Mar. 31, 2020), https://www.bls.gov
/oes/current/oes333012.htm [https://perma.cc/KG7E-WTVM]. For a middle-sized state,
such as Virginia, these figures (from the same sources) are 19,000 and 14,000. With all
other employees of the criminal justice system, even California’s agency would be smaller
than the Department of Veterans Affairs (383,000) or Homeland Security (202,000). See
List of Federal Departments, FEDERALPAY.ORG, https://www.federalpay.org/departments
[https://perma.cc/J4LR-HQEH]. Virginia’s agency would be smaller than Justice (115,000),
Treasury (87,000), Health and Human Services (85,000), or Agriculture (84,000). In all
states, the number of employees in a criminal justice agency would be smaller than the
number of employees in the state’s K–12 schools. California has 354,000, Virginia
123,000. See NEA RESEARCH, RANKINGS OF THE STATES 2019 AND ESTIMATES OF 
SCHOOL STATISTICS 2020, at 22 (2020), https://www.nea.org/sites/default/files/2020-07
/2020%20Rankings%20and%20Estimates%20Report%20FINAL_0.pdf [https://perma.cc
/VND3-NC9F]. Of course, education is as localized and thus as fragmented as police in
most states.
226 Juries are of course set up to be independent, since they are composed of private 
citizens, and they are in fact guaranteed in the Constitution for certain types of cases. U.S. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 317 
Courts, and Prisons to a Modern Administrative Agency
specialized criminal law adjudicators within the overarching 
framework of the agency and retain the independence that is essential 
for due process requirements.227  
Beyond its familiarity, an administrative criminal law agency 
would include a number of features whose importance for addressing 
the issue of crime is readily demonstrated. They can be divided into 
the areas of planning, resource management, staffing, and supervision. 
To begin with planning, an administrative agency would be able 
assess the capacities of each component of the system, preventing 
policies developed by one component from overwhelming the 
capacities of another. This would alleviate the pile-up problem in the 
CONST., amend. VII (“Suits at common law, where the value in controversy shall exceed 
twenty dollars”). But juries are not essential features of a fair adjudication. The right to a 
jury can be waived by the private parties, and juries are not required in statutory cases, in 
which case the decision maker is a professional judge or panel of judges. What is essential 
is the independence of the decision maker, secured for federal judges by the Article III 
protections. See generally JED HANDELSMAN SHUGERMAN, THE PEOPLE’S COURTS: 
PURSUING JUDICIAL INDEPENDENCE IN AMERICA (2012) (Populist movement for the 
election of state court judges, and general attitudes toward judicial independence); 
G. ALAN TARR, WITHOUT FEAR OR FAVOR: JUDICIAL INDEPENDENCE AND JUDICIAL
ACCOUNTABILITY IN THE STATES (2012) (election of state judges and tension between
independence and accountability); Edward L. Rubin, Independence as a Governance
Mechanism, in JUDICIAL INDEPENDENCE AT THE CROSSROADS: AN INTERDISCIPLINARY 
APPROACH 56, supra note 103 (general discussion of issue from various perspectives).
Whether federal judges are truly independent of politics is a matter of extensive debate,
of course. See, e.g., JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT
AND THE ATTITUDINAL MODEL (1993); John Ferejohn, Independent Judges, Dependent
Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353 (1999). The question
here is whether judges within an administrative hierarchy would achieve the level of
independence that we as a society find acceptable, which is that of an Article III judge, not
whether they can achieve some abstract or theoretical ideal of independence.
227 Placing judges within an administrative hierarchy would present no problems for 
their independence. We have extensive experience with Administrative Law Judges 
(ALJs), who must preside in formal adjudications under 5 U.S.C. §§ 554, 556 and 557. 
Numbering nearly 2,000, they are nearly all organizationally located within a single agency, 
and decide issues limited to the agency’s jurisdiction (the largest number being in the 
Social Security Administration). They do not have life tenure, but they are appointed for 
long terms, can be dismissed only for cause, and have salary protection. These features 
have proven sufficient to ensure their independence, and the constitutional validity of 
decisions by ALJs is well established. See AM. BAR ASS’N, A GUIDE TO FEDERAL 
AGENCY ADJUDICATION (Michael Asimow ed., 2003) (American Bar Association); 
Jeffrey S. Lubbers, Federal Administrative Law Judges: A Focus on Our Invisible 
Judiciary, 33 ADMIN. L. REV. 109 (1981). See also Lucia v. Sec. & Exch. Comm’n, 138 S. 
Ct. 2044 (2018) (holding that ALJs are officers of the United States, rather than lower-
level employees). There is thus no reason to think that the independence of an Article III 
judge, or state court judge, whether appointed under similar rules or separately elected and 
provided similar protections, would be compromised if the judge was organizationally 
located within an administrative agency. 
318 OREGON LAW REVIEW [Vol. 100, 261 
prisons that was discussed above.228 Diversionary programs, such as 
supervised release, treatment programs, and house arrest with 
electronic monitoring can be justified on their own terms, but in a 
fragmented system they often lead to increased restrictions on 
offenders who would otherwise be released on probation or parole. 
Connecting them with correctional facilities would encourage their 
use as genuine alternatives. Prosecutors and judges would be 
continuously informed about the capacity of prisons to deal 
effectively with their inmates, and thus understand that a diversion 
program would be both more effective and more humane than sending 
offenders to prison, where they would be sleeping on the floor of a 
converted gym, crowded into confined spaces with more serious 
offenders, and denied any vocational, educational, or treatment 
services.229  
More generally, coordinated planning would allow many of the 
existing boundaries between institutions to be effaced and coherent 
approaches to particular types of offenders developed in their stead. 
Rather than moving an offender from one institution to another, arrest 
could be followed by a team approach that developed a 
comprehensive plan that served the purposes of special deterrence, 
incapacitation rehabilitation, and possibly others as well, such as 
compensation of the victim. An arrestee could be offered a 
coordinated program of addiction treatment and house arrest 
immediately after detention by the police, and then be monitored by 
the staff who ran this program. In other words, instead of processing 
all offenders through the same set of separate institutions, an 
individualized strategy—deploying the most appropriate institutional 
responses—could be designed at the outset. This would certainly save 
money and might well save the offender.230 
228 See supra notes 133–36. 
229 These services have been demonstrated to be an effective means of preventing 
recidivism and are certainly more effective than harsh treatment or sensory deprivation. 
See, e.g., Jeffrey A. Bouffard et al., Effectiveness of Vocational Education and Employment 
Programs for Adult Offenders: A Methodology-Based Analysis of the Literature, 31 J. 
OFFENDER REHAB. 1 (2000) (evidence suggests programs are effective, but more careful 
evaluation is required); Brady Duke, A Meta-Analysis Comparing Educational Attainment 
Prior to Incarceration and Recidivism Rates in Relation to Correctional Education, 69 J. 
CORR. EDUC. 44 (2018) (educational and vocational training particularly effective for 
African American males with only high school education); James S. Vacca, Educated 
Prisoners Are Less Likely to Return to Prison, 55 J. CORR. EDUC. 297 (2004). 
230  See David Weisburd & Anthony A. Braga, Advocate: Hot Spots Policing as a 
Model for Police Innovation, in POLICE INNOVATION: CONTRASTING PERSPECTIVES 225, 
225 (David Weisburd & Anthony Braga eds., 2006). “Looking at the major police 
2022] Criminal Justice Through Management: From Police, Prosecutors, 319 
Courts, and Prisons to a Modern Administrative Agency
Coordinated planning would also enable the criminal justice 
system to benefit from information. Enormous amounts of research 
have been carried out on the causes and patterns of criminal 
activity.231 Due to the present balkanization of institutions, however, 
there is no decision-making body that is positioned to make use of 
this information. The police can use some of it, but only for purposes 
of detection, not disposition. Police departments, moreover, are the 
most fractionated component of the criminal justice system. It seems 
unlikely that these institutions, generally ranging from moderate size 
to truly diminutive,232 have the capacity to absorb, analyze, and apply 
the massive amount of data made available by academic and 
governmental research, to say nothing of carrying out more area-
specific research on their own.233  
innovations of the last few decades, what is most striking from a criminologist’s 
perspective is the extent to which new programs and practices have been developed 
without reference to either criminological theory or research evidence.” Id. It is indeed 
striking, but not at all surprising, given the small size, limited training, and ineffective 
supervision of most American police forces.  
231 See generally FRANK E. HAGAN & LEAH E. DAIGLE, INTRODUCTION TO 
CRIMINOLOGY (10th ed. 2020); FRANK SHMALLEGER, CRIMINOLOGY TODAY: AN 
INTEGRATIVE INTRODUCTION (9th ed. 2018); David P. Farrington, Longitudinal and 
Experimental Research in Criminology, 42 CRIME & JUST. 453 (2013). 
232 Only one police department in the United States, New York City’s, with 36,000 
sworn officers, would count as reasonably large by administrative agency standards. 
BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., CENSUS OF STATE AND LOCAL LAW 
ENFORCEMENT AGENCIES, 2008, at 14 (2011) (listing fifty largest law enforcement 
agencies in the United States.). Three others are in the 10,000-person range (Chicago, Los 
Angeles, and Los Angeles County). Only forty-five local police departments, 0.4% of the 
total, have more than 1,000 sworn officers. See BUREAU OF JUST. STAT., supra note 36, at 
3. As previously stated, supra note 77, nearly half of the local police departments in the
United States have fewer than ten sworn officers, which probably precludes them from
having the basic features that would qualify them as an agency at all. Id.
233 E.g., James J. Willis et al., Compstat and Bureaucracy: A Case of Study of 
Challenges and Opportunities for Change, 21 JUST. Q. 463 (2004) (difficulty of a small 
police department making use of Compstat). See BUREAU OF JUST. ASSISTANCE, supra 
note 200. It is significant that Compstat, as a systematic effort by police to make use of 
relevant data, was initiated by the New York City Police Department. See id. at 2–6. As 
note 232, supra, documents, the New York City force is by far the largest in the nation; in 
fact, it has more officers than the total number in every American state other than New 
York itself, California, Texas, or Florida. Erin Duffin, Number of Full-Time Equivalent 
State and Local Police Officers in the United States in 2020, by State, STATISTA (July 19, 
2021), https://www.statista.com/statistics/750805/number-of-state-and-local-police-in-the 
-us-by-state/ [https://perma.cc/F63C-M29P]. The point is that strategies for generating
relevant information, and the ability to use such information, are likely to be found in large
administrative agencies. It is hard to imagine the modal police department of fewer than 50
officers doing so.
320 OREGON LAW REVIEW [Vol. 100, 261 
Second, and closely related, an administrative agency would be 
able to manage its resources much more effectively than the currently 
fragmented system. In place of separate institutions seeking their own 
appropriations from the legislature, naturally attempting to maximize 
these appropriations, and then obtaining nontransferable funds, 
resources would be granted to the criminal justice agency in its 
entirety. The agency would be in a much better position than the 
legislature to determine where expenses could be reduced or where 
additional funding would be most effective, assuming the legislature 
thinks in these instrumental terms at all. Incarceration, for example, is 
notoriously expensive. While many people favor compassionate 
release programs that would remove elderly individuals with high 
medical costs from prison, the actual rate of release has been little 
more than a trickle. 234 This is perhaps due to prison officials’ fear of 
seeming overly lenient, or of the occasional sex crime committed by a 
released sexagenarian. The problem is that these counterproductive 
fears are not counteracted by any opposing motivation. If 
compassionate release of one elderly prisoner could be readily 
translated into funding for treating ten addicted teenage offenders, the 
pace of compassionate release might be considerably accelerated. 
A third feature of an administrative agency is coordinated staffing. 
Of course, each area of criminal justice would be staffed by people 
with training and experience in the function that they were 
performing, but they would be treated as a body of hierarchically 
organized employees. The criminal justice system, as it exists at 
present, resembles a medieval city, with its separate groups of priests, 
deacons, monks, friars, magistrates, night watchmen, and members of 
the various guilds dressed in distinctive uniforms and celebrating their 
particularized identities. Large urban police departments currently 
have a range of staff, but continue to deploy armed, uniformed 
officers in many situations where they are unnecessary or 
counterproductive and could be replaced with other kinds of 
employees; in smaller departments, another product of the system’s 
234 See John A. Beck, Compassionate Release from New York State Prisons: Why Are 
So Few Getting Out?, 27 J.L. MED. & ETHICS 216 (1999); William W. Berry III, 
Extraordinary and Compelling: A Re-Examination of the Justifications for Compassionate 
Release, 68 MD. L. REV. 850 (2009) (reluctance of the Bureau of Prisons to use authority 
to release older prisons for any reason other than medical treatment); Casey N. Ferri, 
A Stuck Safety Valve: The Inadequacy of Compassionate Release for Elderly Inmates, 43 
STETSON L. REV. 197 (2013); Jason S. Ornduff, Releasing the Elderly Inmate: A Solution 
to Prison Overcrowding, 4 ELDER L.J. 173 (1996) (pragmatic reasons supporting 
compassionate release).  
2022] Criminal Justice Through Management: From Police, Prosecutors, 321 
Courts, and Prisons to a Modern Administrative Agency
institutional balkanization, an armed officer is often the only 
professional staff member.235 Contested cases are resolved by a robed 
official sitting on a podium in a ceremonial setting, or by ad hoc 
procedures crafted to avoid the need for such formalities. Prisons and 
jails continue to employ uniformed officers who have weapons 
training. They usually do not carry firearms inside the prison these 
days, but prisons continue to rely on them for day-to-day management 
functions that do not require use of force. 
Instead of these separate categories, an administrative agency could 
treat its employees as members of a unified staff that is assigned to 
perform the full range of functions that fall within the agency’s 
jurisdiction. There would continue to be situations where a uniformed 
police officer, judge, or prison guard would be needed, but they 
would be regarded as specialized staff, to be deployed in extreme 
situations. They would not be the modal employee in any division of 
the agency. For many offenders, it might be preferable to assign a 
case worker at the beginning of the process and have that person deal 
with the entire process for that particular offender, from detention to 
disposition to punishment. Again, this does not mean that we would 
abandon criminal procedure protections or stop incarcerating truly 
dangerous offenders. The idea is that formal and traditional 
approaches would not be used by reflex or habit, but only when their 
particularized features could be justified.  
Finally, it is difficult to find any area of governmental operations 
where supervision is as important as it is for criminal justice, nor any 
area where such supervision is so lacking. By its nature, maintaining 
order and preventing crime in a community must be carried out by 
government employees working by themselves, or in pairs. These 
relatively isolated persons are often confronted by a range of 
situations, from trivial to truly dangerous, that must be distinguished 
from each other and resolved on an immediate basis. The extreme 
balkanization of police departments means that many of the 12,000 
institutions are too small to maintain any effective supervision of their 
“street-level bureaucrats.”236 Criminal trials are highly regulated and 
readily monitored, but all this procedure and ceremony can be 
regarded as a façade that conceals the reality of plea bargaining, 
where the prosecutor and defense attorney sit alone, with no 
235 See supra note 77. 
236 LIPSKY, supra note 76. 
322 OREGON LAW REVIEW [Vol. 100, 261 
observers, no recordings, and few governing rules.237 Prisons are 
large, bureaucratically managed institutions; but the need to maintain 
some semblance of order in a setting designed to produce conflict, 
chaos, and corruption leads to individualized actions by the guards 
that reproduce the isolation and momentary challenges of police 
patrols in the community. 
The two components of effective supervision that are so badly 
needed in the criminal justice system are training and monitoring. 
Administrative agencies do not always perform these functions well, 
of course, but they are the only structure where any level of effective 
performance is possible. An agency can design and implement 
training and retraining programs, relying on specialized staff who are 
specifically qualified to perform this function. It can devote resources 
to second-level officials whose expertise and full-time assignment is 
to monitor the performance of the operations-level employees. It can 
achieve economies of scale by training and monitoring across 
different components of the system. It can frame systematic responses 
to problems that pervade the system but manifest themselves in 
different ways, such as racism or class antagonism. It can involve 
external participants, such as community members and academics, in 
ways that are oriented to their potential contributions, rather than 
specific, institutionally embedded issues.  
Perhaps most basically, a comprehensive agency can create an 
ethos where being trained and monitored are seen as an intrinsic 
feature of every employee’s job performance, not unwelcome 
intrusions into their independent, insular operations. A specific 
example is Christopher Slobogin’s argument that police actions 
should be subjected to the same constraints that apply to other 
governmental agencies.238 When the police institute a “panvasive” 
search and seizure program, such as a residential or business 
inspection, an automobile checkpoint, or a drug testing program,239 
Professor Slobogin argues that they should be required to follow the 
237 See PFAFF, supra note 26, at 161–84 (independence of prosecutors from governmental 
hierarchy because they are separately elected officials); Ronald F. Wright, Reinventing 
American Prosecution Systems, 46 CRIME & JUST. 395 (2017) (supervision of prosecutors 
is particularly important in the United States because of the breadth of its criminal justice 
codes); Fred C. Zacharias, The Professional Discipline of Prosecutors, 79 N.C. L. REV. 
721, 725–50 (2001) (many professional rules are inapplicable to prosecutors, and those 
that are applicable tend not to be enforced). 
238 Slobogin, supra note 30. 
239 Id. at 98–109. Professor Slobogin’s other examples are DNA sampling and 
surveillance programs. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 323 
Courts, and Prisons to a Modern Administrative Agency
same procedures of notice and comment, and the same standards 
prohibiting arbitrary and capricious decision making, that apply to 
agencies regulating air pollution, pesticide usage, securities sales, and 
other potentially harmful actions.240 The reason this perfectly 
plausible proposal may sound jarring, or even needs to be argued for 
in the first place, is that the existing culture of American police forces 
and our general concept of policing is so resistant to the modes of 
supervision that apply to other governmental functions. Locating the 
police within an overarching administrative structure would 
counteract this divergent culture and concept. 
B. Reducing Coercion
In recent years, the harshest criticisms of our criminal justice 
system have focused on its initial and its final stages. Following 
George Floyd’s murder, there was widespread condemnation of police 
practices, often under the banner of “defund the police.”241 And for 
many years, there has been condemnation of prisons as essentially 
inhume institutions that should be abolished.242 Extreme proposals of 
240 These standards are prescribed by the Administrative Procedure Act (APA). See 5 
U.S.C. § 553 (prescribing notice and comment procedures for promulgating regulations 
with the force of law); 5 U.S.C. § 706 (prescribing judicial review to overturn agency 
action found to be “arbitrary, capricious, [and] an abuse of discretion”). They are, of 
course, federal standards and the panvasive searches under discussion are often carried out 
by municipal police forces. But, Professor Slobogin points out, “they are carrying out 
panvasive actions in service of state or federal criminal law rather than a purely local 
statute; under those circumstances they are functioning like an agency of those entities.” 
Slobogin, supra note 30, at 135. 
241 See Annie Lowrey, Defund the Police, ATLANTIC (June 5, 2020), https://www.the 
atlantic.com/ideas/archive/2020/06/defund-police/612682/ [https://perma.cc/5XQE-6PEV]; 
Rashawn Ray, What Does ‘Defund the Police’ Mean and Does It Have Merit?, BROOKINGS 
INST. (June 19, 2020), https://www.brookings.edu/blog/fixgov/2020/06/19/what-does-defund 
-the-police-mean-and-does-it-have-merit/ [https://perma.cc/9AHC-VXLR]; Lissandra
Villa, Why Protesters Want to Defund Police Departments, TIME (June 7, 2020, 11:17 AM),
https://time.com/5849495/black-lives-matter-defund-police-departments/ [https://perma.cc
/YZ3K-U3YT].
242 See ANGELA Y. DAVIS, ABOLITION DEMOCRACY: BEYOND EMPIRE, PRISONS, AND 
TORTURE (2005); ANGELA Y. DAVIS, ARE PRISONS OBSOLETE? (2003) [hereinafter 
DAVIS, PRISONS]; JACQUES LESAGE DE LA HAYE, THE ABOLITION OF PRISON (Scott 
Branson trans., 2021); Patrisse Cullors, Abolition and Reparations: Histories of Resistance, 
Transformative Justice, and Accountability, 132 HARV. L. REV. 1684 (2019); Dorothy E. 
Roberts, The Supreme Court 2018 Term: Foreword: Abolition Constitutionalism, 133 
HARV. L. REV. 1 (2019); Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 
UCLA L. REV. 1156 (2015); Dylan Rodríguez, Abolition as Praxis of Human Being: A 
Foreword, 132 HARV. L. REV. 1575 (2019); Angel E. Sanchez, In Spite of Prison, 132 
324 OREGON LAW REVIEW [Vol. 100, 261 
this sort have provided ammunition for proponents of our present 
system, or of even more bellicose approaches. Translated into the 
context of an administrative system, however, these proposals can be 
framed in ways that are eminently practical and that would, in fact, 
achieve the purpose of reducing crime far more effectively than the 
supposedly realistic strategies that traditionalists and retributivists 
favor. 
A feature of administrative governance is that coercive force is the 
last alternative that a government agency deploys, not its first or most 
commonly used response. Coercive force is expensive for the agency 
in our system, in part because of the due process guarantee that 
reaches back to the Magna Carta and is enshrined in our 
Constitution.243 Few if any administrative agencies have the resources 
to deploy coercive force against every violation of the laws and, in 
fact, this resource limitation is a leading rationale for granting 
agencies the equivalent of prosecutorial discretion in their 
implementation efforts.244 In addition, the use of coercive force often 
generates resistance and resentment, and is thus counterproductive.245  
At a deeper level, coercion generally forecloses the development of 
a collaborative relationship between an agency and those it regulates, 
one in which each party adjusts its behavior to produce more 
beneficial outcomes.246 The initial inclination of regulatory statutes 
to rely on coercive force, so-called command and control, has 
been replaced in recent years with a panoply of more sophisticated 
and effective mechanisms, sometimes identified as New Public 
HARV. L. REV. 1650 (2019). An organization formed in 1997, Critical Resistance, has 
become a leading voice in the prison abolition movement. See Roberts, supra, at 5–8.  
243 U.S. CONST., amends. XIV, V. This guarantee is commonly traced back to Magna 
Carta, ch. 39. See generally J.C. HOLT, MAGNA CARTA 9–14, 297–346 (1965). 
244 See Charles J. Babbitt et al., Discretion and the Criminalization of Environmental 
Law, 15 DUKE ENV’T L. & POL’Y F. 1, 4; Frank B. Cross, Shattering the Fragile Case for 
Judicial Review of Rulemaking, 85 VA. L. REV. 1243, 1330–33 (1999); Mila Sohoni, 
Crackdowns, 103 VA. L. REV. 31 (2017). Cf. Motor Vehicle Mfrs. Ass’n v. State Farm 
Mut. Auto. Ins. Corp., 463 U.S. 29 (1983) (agency rescission of a promulgated regulation 
held to a higher standard of review than decision not to act, which is a matter of 
discretion). 
245 See Stephen J. Schulhofer et al., American Policing at a Crossroads: Unsustainable 
Policies and the Procedural Justice Alternative, 101 J. CRIM. L. & CRIMINOLOGY 335 
(2011). 
246 In the context of policing, see Kimberly Belvedere et al., Explaining Suspect 
Resistance in Police-Citizen Encounters, 30 CRIM. JUST. REV. 30 (2005); Remi Boivin, 
Correlates of Subject(ive) Resistance in Police Use-of-Force Situations, 40 POLICING 719 
(2017); Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 
7 OHIO ST. J. CRIM. L. 307 (2009). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 325 
Courts, and Prisons to a Modern Administrative Agency
Governance.247 Properly conducted, a regulatory regime can be 
regarded as a learning process for both the agency and the regulated 
parties, one in which they calibrate their actions to develop strategies 
that satisfy the needs of both parties in a cost-effective manner248—
not out of some lion-lies-down-with-the-lamb idealism,249 but out of 
their own self-interest. A standard case is where the agency trades 
regulatory indulgences for voluntary compliance.250 In the Maine 200 
program, for example,251 the Occupational Safety and Health 
Administration (OSHA) identified the 200 employers in the state with 
the highest volume of worker injury claims and offered them the 
opportunity to develop their own safety plans in exchange for an 
exemption from regular inspections.252  
247 See, e.g., AYRES & BRAITHWAITE, supra note 56; Michael C. Dorf, Legal 
Indeterminacy and Institutional Design, 78 N.Y.U. L. REV. 875 (2003); Daniel A. Farber, 
Revitalizing Regulation, 91 MICH. L. REV. 1278 (1993); Richard H. Pildes & Cass R. 
Sunstein, Reinventing the Regulatory State, 62 U. CHI. L. REV. 1 (1995); Charles F. Sabel 
&William H. Simon, Destabilization Rights: How Public Law Litigation Succeeds, 117 
HARV. L. REV. 1016 (2004); Susan Sturm, Second Generation Employment Discrimination: 
A Structural Approach, 101 COLUM. L. REV. 458 (2001). For an overview, see Orly Lobel, 
The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary 
Legal Thought, 89. MINN. L. REV. 342 (2004). 
248 This insight is part of implementation theory and is associated with New Public 
Governance. On the specific aspect of implementation theory discussed here, see KIRK 
EMERSON & TINA NABATCHI, COLLABORATIVE GOVERNANCE REGIMES (2015); Chris 
Ansell & Allison Gash, Collaborative Governance in Theory and Practice, 18 J. PUB. 
ADMIN. RES. & THEORY 543 (2007); Jody Freeman, Collaborative Governance in the 
Administrative State, 45 UCLA L. REV. 1 (1997); Janet Newman et al., Public Participation 
and Collaborative Governance, 33 J. SOC. POL’Y 203 (2004); John T. Scholz, Cooperative 
Regulatory Enforcement and the Politics of Administrative Effectiveness, 85 AM. POL. SCI. 
REV. 115 (1991). See also CHRIS ARGYRIS & DONALD A. SCHON, ORGANIZATIONAL 
LEARNING II: THEORY, METHOD, AND PRACTICE (1995) (social learning approach to 
organizational decision-making). 
249 See Isaiah 11:6–9. 
250 One way to analyze this interaction is as a repeat prisoner’s dilemma game. Viewed 
that way, the optimal strategy turns out to be Tit for Tat: cooperate (be “nice”) as long as 
the other party cooperates, defect in response to a defection by the other party, then return 
to the cooperative stance. See ROBERT AXELROD, THE EVOLUTION OF COOPERATION 
(1984) (confirming optimal results of Tit for Tat by computer-run simulations). For the 
application of this principle to regulatory enforcement, see Scholz, supra note 248; John T. 
Scholz, Voluntary Compliance and Regulatory Enforcement, 6 L. & POL’Y 385 (1984); 
John T. Scholz, Cooperation, Deterrence, and the Ecology of Regulatory Enforcement, 18 
L. & SOC’Y REV. 179 (1984).
251 Maine Top 200 Experimental Targeting Program, HARV. KENNEDY SCH. (Jan. 1,
1995), http://www.innovations.harvard.edu/awards.html?id=3693 [https://perma.cc/GAY5 
-CLFS].
252 These firms were among the largest in Maine; although representing only 1% of
Maine employers, they accounted for 30% of the employees and, significantly, 45% of the
326 OREGON LAW REVIEW [Vol. 100, 261 
The demand of the Black Lives Matter movement to defund the 
police can be understood and instantiated in terms of these 
administrative principles. It would draw upon the approach to staffing 
and preventative policing described above. From an administrative 
perspective, armed, uniformed officers with quasi-military training 
are a predictably bad way to maintain order in a community,253 and 
providing actual military equipment to them only makes matters 
worse.254 A preferable strategy, as Barry Friedman argues, is to 
disaggregate the police into the various functions that they perform 
and staff each function with appropriate personnel.255 While this is a 
general approach applicable in many nations, it is essential if the 
United States is to overcome the racist antagonism inherent in the 
prevailing quasi-military design of police forces.256 In its place would 
be a service-oriented administrative staff that community people 
would feel comfortable consulting or complaining to, who could 
defuse potentially threatening situations such as domestic violence or 
youth confrontations, who could obtain voluntary compliance with 
reasonable rules,257 who could organize meetings with community 
leaders to craft long-term strategies, who could participate in 
restorative justice processes258 or meet with prosecutors, judges or 
other staff authorized to propose dispositions, and who could follow a 
documented workplace injuries. See id. Although never fully evaluated, the Maine 200 
program seems to have been a notable success. Worker injuries at the 200 identified firms 
decreased markedly, and OSHA was able to devote its resources to pursuing claims at 
other firms, more than quadrupling the number of violations it detected on an annual basis.  
253 David Weisburd & John E. Eck, What Can Police Do to Reduce Crime, Disorder 
and Fear?, 593 ANNALS AM. ACAD. POL. & SOC. SCI. 42, 44 (2004) observe that the 
standard model of policing 
relies generally on a “one-size-fits-all” application of reactive strategies to 
suppress crime and continues to be the dominant form of police practices in the 
United States. The standard model is based on the assumption that generic 
strategies for crime reduction can be applied throughout a jurisdiction regardless 
of the level of crime, the nature of crime, or other variations. 
254 See Delehanty et al., supra note 81 (transfer of military equipment to police leads to 
higher rate at which police kill civilians); Lawson, Jr., supra note 81 (same). 
255 Friedman, supra note 84. 
256 See supra note 82 (citing sources on police bias). 
257 See JOHN D. MCCLUSKEY, POLICE REQUESTS FOR COMPLIANCE: COERCIVE AND 
PROCEDURALLY JUST TACTICS (2003); Stephen D. Mastrofski et al., Compliance on 
Demand: The Public’s Response to Specific Police Requests, 33 J. RES. CRIME & DELINQ. 
269 (1996); Tom R. Tyler, Enhancing Police Legitimacy, 593 ANNALS AM. ACAD. POL. & 
SOC. SCI. 84 (2004). 
258 See infra pp. 330–31 (defining restorative justice and citing sources). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 327 
Courts, and Prisons to a Modern Administrative Agency
convicted person through some alternative punishment process and 
assist his or her reentry into society.259 
Beyond this revised and expanded set of roles, police reconceived 
as a community-service force would be able to include community 
members in goal-setting and general decision-making. As Jocelyn 
Simonson has argued, this sort of power sharing empowers previously 
disempowered populations and embodies democratic values.260 While 
administrative agencies can certainly engage in practices that oppress 
private parties or ignore their views,261 real administrative expertise 
in a service area, whether it involves regulation or benefit provision, 
depends on an understanding of the relevant population.262 An 
overarching administrative structure would be more likely to demand 
and encourage such expertise than the ingrown, self-protective, quasi-
military ethos of current police forces. Armed, uniformed officers 
would still be needed as a last resort in highly dangerous situations, 
and might possibly be acceptable or desired in wealthy suburbs. But 
clearly, their numbers would be significantly reduced (by attrition if 
no other means were viable) and in that sense the “police” would be 
partially defunded. Contrary to the alarmist, incendiary rhetoric of 
Donald Trump and his allies, such an administrative program is not an 
invitation to anarchy, but an administrative approach that would 
259 See Lum & Nagin, supra note 142. 
260 Jocelyn Simonson, Police Reform Through a Power Lens, 130 YALE L.J. 778 
(2021). See K. Sabeel Rahman & Jocelyn Simonson, The Institutional Design of 
Community Control, 108 CALIF. L. REV. 679 (2020) (role of social movements in 
advancing power sharing between community and police); Jocelyn Simonson, 
Democratizing Criminal Justice Through Contestation and Resistance, 111 NW. U. L. 
REV. 1609 (2017) (role of community activism in advancing power sharing). For a similar 
approach in a different social context, see Martin Innes, Reinventing the Office of 
Constable: Progressive Policing in an Age of Austerity, in THE FUTURE OF POLICING, 
supra note 84, at 64 (describing the South Wales experiment which used community 
engagement to define policing practices that responded to community priorities, rather 
than relying on policies established by the police department). 
261 See THEODORE J. LOWI, THE END OF LIBERALISM: THE SECOND REPUBLIC OF THE 
UNITED STATES 105–13 (2nd ed. 1979) (exercise of arbitrary authority); JAMES Q. 
WILSON, BUREAUCRACY: WHAT GOVERNMENT AGENCIES DO AND WHY THEY DO IT 
(1989) (mismatched incentives and institutional pathologies); Edward L. Rubin, 
Bureaucratic Oppression: Its Causes and Cures, 90 WASH. U. L. REV. 291 (2012) (status 
differences, stranger relations, institutional pathologies and mismatched incentives). 
262 See MICHAEL BARZELAY, BREAKING THROUGH BUREAUCRACY: A NEW VISION 
OF MANAGING IN GOVERNMENT 102–14 (1992); Rubin, supra note 261, at 332–40, 346–
54; David A. Super, Privatization, Policy Paralysis, and the Poor, 96 CALIF. L. REV. 393 
(2008). 
328 OREGON LAW REVIEW [Vol. 100, 261 
simultaneously be more effective and more consistent with our 
democratic and human rights beliefs. 
At the opposite end of the criminal justice system, prison serves as 
our default form of punishment for what we regard as serious 
offenses. Mass incarceration in the United States is such an obvious 
abuse that we tend to view nations that imprison people at one-fifth or 
one-tenth of our rate as enlightened.263 Moreover, we view the prison 
itself as a modern institution, a humane alternative to the horrific 
tortures and mutilations that prevailed prior to its introduction at the 
beginning of the nineteenth century.264 This was in fact the view of 
people at that time; the American penitentiaries that first established 
prison as the standard form of punishment were world famous, 
attracting visitors such as Alexis de Tocqueville from France and 
Charles Dickens from Britain.265 But prison is neither modern in 
conception nor humane in its use, as Angela Davis points out in her 
book on prison abolition.266 It is actually a lineal descendant of the 
jails that housed accused persons, debtors, vagrants, and other 
“undesirables” throughout the premodern era.267 
263 PEW CHARITABLE TR., supra note 25 (U.S. incarceration rate about twice that of 
Russia, four times that of Australia, five times that of Canada, and nearly ten times that of 
Germany). 
264 See, e.g., BENDER, supra note 20 (penitentiary as part of a cultural transformation 
that viewed people’s lives as narratives that could be altered by circumstances, thus 
encouraging rehabilitation); FOUCAULT, supra note 18, at 104–31 (penitentiary as an 
alternative to public displays of brutal torture); ROTHMAN, supra note 20, at 79–108 
(penitentiary as part of a general effort in the Early Republic to address social problems). 
265 See generally ROTHMAN, supra note 20, at 81–88. For accounts by these visitors, 
see DICKENS, supra note 130; G. DE BEAUMONT & A. DE TOQUEVILLE, ON THE 
PENITENTIARY SYSTEM IN THE UNITED STATES AND ITS APPLICATION TO FRANCE 
(Francis Lieber trans., 1833). Tocqueville, of course, went on to write a more general and 
famous book about the United States, TOCQUEVILLE, supra note 95, which barely 
addresses the issue of criminal justice other than the language in note 95. 
266 DAVIS, PRISONS, supra note 242. She points out that prisons embed premodern 
attitudes, not only toward punishment but more generally regarding race, class and gender. 
267 Another possible predecessor is the monastery. In both the Pennsylvania and New 
York models, prisoners were confined in a narrow cell, often with access to no book other 
than the Bible, and expected to commune with God and beg forgiveness for their sins. See 
ROTHMAN, supra note 20, at 81–104. While monasteries were not without their cruelties, 
it is worth noting that few of them were as restrictive as either the Pennsylvania or the 
New York penitentiaries, that entry into them was often (although not always) voluntary, 
that punishments for misbehavior were restrained, the most serious being expulsion, and 
that the residents, far from being condemned or scorned, were always regarded with 
respect, and sometimes with true reverence by society at large. See C.H. LAWRENCE, 
MEDIEVAL MONASTICISM: FORMS OF RELIGIOUS LIFE IN WESTERN EUROPE IN THE 
MIDDLE AGES 100–33 (1984). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 329 
Courts, and Prisons to a Modern Administrative Agency
The familiarity of prison at the present time, in moderate Europe as 
well as punitive America,268 tends to obscure its irrationalities. In 
essence, prison is a place where young men are confined in chaotic 
institutions, denied sexual gratification at a time of their lives when 
their drives are at their maximum and their need to define their sexual 
identity most insistent, subjected to humiliating and oppressive 
treatment by hostile guards, forced to use violence for their own 
protection because those guards cannot control the other prisoners, 
and separated from their families and other support systems. None of 
this is part of the sentence—no law explicitly sentences an offender to 
sexual deprivation or the need to fight for survival—but it is an 
inevitable consequence of our modal form of serious punishment. 
Women inmates, whose numbers are rapidly increasing, are spared 
some of these harsher features of incarceration, but regularly subject 
to sexual abuse by prison staff.269 We can hardly be surprised when 
people who have been deprived, mistreated, and brutalized in this 
manner return to crime upon their release. 
An administrative approach to the offender would be an effort to 
find the proper disposition for his or her case, perhaps beginning 
immediately after arrest or arraignment. Our theory of criminal law 
demands individualization; a person can be convicted only after a 
specific determination that he or she has in fact committed the actions 
that comprise the elements of the offense. Our practice demands that 
the criminal justice system operates under resource constraints, and 
prison is an expensive disposition for the convicted person, with an 
268 For a contrast between the two, see WHITMAN, supra note 144 (American approach 
to punishment strives to abase the offender and imposes unnecessarily harsh conditions as 
a result). 
269 See Jordan v. Gardner, 986 F.2d 1521 (9th Cir. 1993) (due to history of sexual 
abuse in prison, physical searches of women’s bodies by male guards constitutes cruel and 
unusual punishment); Torres v. Wisconsin Dep’t of Health and Soc. Serv., 859 F.2d 1523 
(7th Cir. 1988), cert. denied, 489 U.S. 1017 (1989) (due to history of sexual abuse, gender 
is a bona fide occupational qualification for guards in women’s housing units); HUM. RTS. 
WATCH, ALL TOO FAMILIAR: SEXUAL ABUSE OF WOMEN IN U.S. STATE PRISONS (1996) 
(general discussion and reports on five states and District of Columbia); INSIDE THIS 
PLACE, NOT OF IT: NARRATIVES FROM WOMEN’S PRISONS (Robin Levi & Ayelet 
Waldman eds., 2017) (accounts of prison experiences by various women); CRISTINA 
RATHBONE, A WORLD APART: WOMEN, PRISON, AND LIFE BEHIND BARS (2006) 
(accounts of women’s experiences at a Massachusetts prison); Kim Shayo Buchanan, 
Impunity: Sexual Abuse in Women’s Prisons, 42 HARV. C.R.-C.L. L. REV. 45 (2007); 
Brenda V. Smith, Sexual Abuse of Women in United States Prisons: A Modern Corollary 
of Slavery, 33 FORDHAM URB. L.J. 571 (2006). 
330 OREGON LAW REVIEW [Vol. 100, 261 
average cost of over $30,000 per year,270 or $150,000 for a five-year 
sentence. Yet despite our theory and our practice, we devote few 
resources to individualizing the way we deal with offending 
individuals. Under an administrative approach, an individualized 
determination of the optimal disposition would occur at an early point 
in the process, funded at an adequate level that would be a fraction of 
the cost now devoted to the ineffective and inhumane reliance on 
imprisonment. 
We have already developed a fairly wide range of alternatives to 
imprisonment that avoid its obvious abuses and at least promise 
greater likelihood of success. These include house arrest with 
electronic monitoring, addiction treatment or vocational training in a 
quasi-residential setting, and community service or victim 
restitution.271 Restorative justice should be regarded as another 
alternative, because its central feature is to design an individualized 
response to the offense that is acceptable to all parties—offender, 
victims, community members, and others.272 Robert Martinson’s 
270 Prison Spending in 2015, VERA INST., https://www.vera.org/publications/price-of 
-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends/price-of
-prisons-2015-state-spending-trends-prison-spending [https://perma.cc/QDB3-STN7]. The
average cost in 2015 ranged from $14,780 in Alabama to $69,355 in New York. Id.
271 RICHARD A. BALL ET AL., OFF. OF JUST. PROGRAMS, HOUSE ARREST AND 
CORRECTIONAL POLICY: DOING TIME AT HOME (1988) (reporting generally positive 
results for offenders, and general acceptance by community, but raising concerns about 
surveillance); Randy R. Gainey & Brian K. Payne, Understanding the Experience of 
House Arrest with Electronic Monitoring: An Analysis of Quantitative and Qualitative 
Data, 44 INT’L J. OFFENDER THERAPY & COMPAR. CRIMINOLOGY 84 (2000) (offenders 
do not perceive house arrest as excessively punitive); Christina E. Grella et al., Program 
Variation in Treatment Outcomes Among Women in Residential Drug Treatment, 24 
EVALUATION REV. 364 (2000) (success in treatment program depends on range of 
supplemental services); Joe Hudson et al., When Criminals Repay Their Victims: A Survey 
of Restitution Programs, 60 JUDICATURE 313 (1977) (surveying existing programs and 
calling for further research); DOUGLAS CORRY MCDONALD, PUNISHMENT WITHOUT 
WALLS: COMMUNITY SERVICE SENTENCES IN NEW YORK CITY (1986) (after initial 
failures, community service programs achieved acceptable success rates with offenders 
and provided benefit to the community); Bernadette Pelissier et al., Federal Prison 
Residential Drug Treatment Reduces Substance Use and Arrests After Release, 27 AM. J. 
DRUG & ALCOHOL ABUSE 315 (2001) (successful outcomes for residential programs in 
prison); Joan Petersilia, Exploring the Option of House Arrest, 50 FED. PROB. 142 (1986) 
(house arrest is a promising strategy that may be the best means of making probation 
acceptable to the public). 
272 See DANIELLE SERED, UNTIL WE RECKON: VIOLENCE, MASS INCARCERATION, 
AND A ROAD TO REPAIR (2019) (reporting on a restorative justice program in Brooklyn, 
N.Y. that has achieved successful resolutions with violent offenders); HOWARD ZEHR, 
CHANGING LENSES: RESTORATIVE JUSTICE FOR OUR TIMES (2015) (discussing reactions 
to criminal justice for victims and offenders and proposing restorative justice as an 
alternative). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 331 
Courts, and Prisons to a Modern Administrative Agency
notorious declaration that “nothing works”273 has justified a 
thoughtless reversion to premodern attitudes and pseudo-modern 
prisons.274 We would not accept such despairing fatalism in other 
areas of social concern, such as environmental protection, securities 
regulation, or national defense, and we should not accept it in this 
case.275 Instead, we should have a unified administrative agency that 
would carry out research about the most effective dispositions, 
conduct controlled experiments to determine which ones are the most 
effective in particular situations, and then implement those solutions 
in a coordinated fashion.276 There are of course, homicidal maniacs 
from whom society must be protected, although they are probably 
more common in fiction than reality. But we should not be designing 
a system involving the lives of millions of Americans with Hannibal 
Lecter in mind. Long-term incarceration should be a last resort, after 
we have made a conscientious effort to find more effective and 
humane dispositions through administrative means. 
A further advantage of an administrative approach is that it can 
achieve greater levels of crime prevention by systematizing decisions 
about release and prosecution, and then by effacing the boundary 
between criminal penalties and voluntary treatment. By both intention 
and necessity, the police, prosecutors, courts, and correctional 
institutions all focus on maintaining order and deterring potential 
wrongdoers. They continually adjust their strategy in recognition of 
273 Robert Martinson, What Works? – Questions and Answers About Prison Reform, 35 
PUB. INT. 22 (1974). For the origin and subsequent impact of this article, see Rick Sarre, 
Beyond ‘What Works?’: A 25-Year Jubilee Retrospective of Robert Martinson’s Famous 
Article, 34 AUSTL. & N.Z. J. CRIMINOLOGY 38 (2001). 
274 Martinson himself retracted some of his conclusions in a later work. See Robert 
Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 
HOFSTRA L. REV. 243 (1979). Soon after writing this, he committed suicide. 
275 See Francis T. Cullen, Rehabilitation: Beyond Nothing Works, 42 CRIME & JUST. 
299 (2013). 
276 For example, militaristic boot camps for juvenile offenders, which were 
enthusiastically instituted in a number of jurisdictions, have not produced favorable 
outcomes. See Angela R. Gover et al., Boot Camps and Traditional Correctional Facilities 
for Juveniles: A Comparison of the Participants, Daily Activities, and Environments, 28 J. 
CRIM. JUST. 53 (2000) (boot camps provided more activity but less education); Doris 
Layton MacKenzie et al., Effects of Correctional Boot Camps on Offending, 578 ANNALS 
AM. ACAD. POL. & SOC. SCI. 126 (2001) (meta-analysis revealing that boot camps had no 
significant effect on recidivism). The conclusion to be drawn, of course, is not that we 
should stop seeking alternatives to the failed carceral institutions, but rather that we need 
an administrative agency that can systematically explore alternatives and evaluate the 
results. 
332 OREGON LAW REVIEW [Vol. 100, 261 
their available resources.277 Police arrest only a fraction of those 
known to violate the law. More often, they warn known offenders, 
shut down illegal activities without arrest and orchestrate arrests 
without follow-through. Police-citizen encounters typically end with a 
verbal warning, even though the facts might have warranted an arrest. 
Even after arrest, police release a great proportion of suspects at the 
station house, again not for want of evidence but because they believe 
that the encounter has served its purpose and instilled a lesson. 
Carried out to excess, this can be a mode of abuse,278 or a problem of 
under enforcement of serious offenses, such as the mistreatment of 
women by their partners. Whatever the motivation, far more cases are 
shunted out of the criminal process than are drawn into it. Prosecutors 
and judges adopt a similar approach. About half of all felony arrests 
in the United States brought to court for first appearance or 
arraignments are dropped by prosecutors or dismissed by judges.279 
Here too, the assumption is that the parties have learned their lesson 
and are sufficiently deterred by the initial stages of the process. After 
such cases have been dropped, almost all the remaining ones are 
resolved by pleas of guilty, with many of the pleas leading to 
probation rather than imprisonment.  
This basic feature of the criminal process is illustrated by the 
famous funnel of justice, developed for the Katzenbach Commission 
in 1967.280 The Commission’s funnel moves from patrol to police 
stop, warning arrest, booking, initial appearance, preliminary hearing, 
arraignment, diversion, adjudication, sentence, probation and 
imprisonment, with the bulk of subjects shunted out of the early 
outlets of the funnel, and only a fraction reaching its end (see 
Figure 1). 
277 See, e.g., Jessica Huff, Understanding Police Decisions to Arrest: The Impact of 
Situational, Officer, and Neighborhood Characteristics on Police Discretion, 75 J. CRIM. 
JUST. (2021). 
278 See infra pp. 351–54 (discussing functionalist critique of criminal justice system). 
279 See, e.g., VERA INST., FELONY ARRESTS: THEIR PROSECUTION AND DISPOSITION 
IN NEW YORK CITY (1981).  
280 KATZENBACH COMMISSION, supra note 146, at 8–9. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 333 
Courts, and Prisons to a Modern Administrative Agency
Figure 1. Funnel of Justice (source: https://bjs.ojp.gov/justice-system). 
334 OREGON LAW REVIEW [Vol. 100, 261 
All these practices might appear to contradict the previously stated 
observation that the fragmentation of this system and its lack of 
institutional coordination lead to a pileup of convicts at the endpoint 
of the system, that is, in prisons. In fact, it provides the explanation 
for this pileup effect. Because the system relies so heavily at each 
stage on selecting only a portion (often a minority) of those who 
could legally be prosecuted or convicted, any alteration in the 
selection rate is likely to have a major impact on the numbers 
involved at future stages.  
Relying on the Katzenbach Commission’s image, it is easy to 
picture how quickly—and disastrously—the system would be 
overloaded if one or more of the pathways by which people are 
siphoned off were to be eliminated or even significantly narrowed.  
The basic principle of selectivity, of prosecuting and convicting 
only a subset of those who could legally be pursued, seems quite 
reasonable. The problem is that the selection process is notably 
casual, often random, and sometimes openly racist. An administrative 
approach would monitor these exercises of discretion at the various 
stages of the system. It would establish protocols for determining who 
should be released with a warning, who should be treated mildly, and 
who should be subject to the law’s coercive force. Moreover, it would 
allow for a prevention-oriented continuity among these various 
responses. The same drug treatment program that a potential detainee 
might be compelled to attend by force of law could be offered to a 
relatively inoffensive shoplifter or small-time drug dealer on a 
voluntary basis. An administrative agency that conceived its 
responses in terms of treatment rather than punishment would be able 
to design each element of the criminal justice system as part of a 
coordinated response to crime, rather than relying on the discretion of 
operations level, relatively untrained officials to decide between 
casual indulgence and life-destroying punishment. 
C. Focusing on Prevention
As stated at the outset, prevention has always been a central 
concern, and often the primary concern, of governmental efforts to 
combat crime, the reason being well summarized in the Attorney 
General’s report. But the fragmentation of our current criminal justice 
system serves to diffuse and attenuate this function, rather than 
facilitating it, and the previously discussed emphasis on coercive 
strategies amplifies this effect. An administrative agency with a 
comprehensive mission to address the problem of crime would be 
2022] Criminal Justice Through Management: From Police, Prosecutors, 335 
Courts, and Prisons to a Modern Administrative Agency
able to shift its focus to prevention by expanding functions that are 
now recognized as within the scope of criminal justice but ignored or 
underemphasized because we are imprisoned in approaches that we 
inherited from the state-building process of the Medieval and Early 
Modern Eras. Three prevention-based functions will be briefly 
summarized here as examples: early intervention, proactive targeting 
of police forces, and ex-prisoner reentry programs. 
Early intervention is the most obvious, so much so that it is our 
failure to pursue it, rather than its advantages, that require 
explanation. We can identify children who are at risk of engaging in 
criminal activity, often because they are unsupervised and exposed to 
older children who are already criminals.281 Several decades ago, 
some funding was provided for drug prevention through the DARE 
program,282 and the features of this program, which subjected 
children to sanctimonious preaching by the same uniformed police 
officers who were arresting their parents, provide valuable 
information about the wrong way to proceed.283 At present, the most 
281 See DAVID P. FARRINGTON & BRANDON C. WELSH, SAVING CHILDREN FROM A 
LIFE OF CRIME: EARLY RISK FACTORS AND EFFECTIVE INTERVENTIONS 17–91 (2006); 
John B. Reid & J. Mark Eddy, Comment: Can We Afford to Prevent Violence? Can We 
Afford Not To?, in MINIMIZING HARM: A NEW CRIME POLICY FOR MODERN AMERICA 
101 (Edward L. Rubin ed., 1999). In fact, researchers have found that young people 
accurately self-report delinquency. See Rachele C. Espiritu, et al., Epidemiology of Self-
Reported Delinquency, in ROLF LOEBER & DAVID P. FARRINGTON, CHILD DELINQUENTS: 
DEVELOPMENT, INTERVENTION AND SERVICE NEEDS 47 (2000); David P. Farrington et 
al., Self-Reported Delinquency and a Combined Delinquency Seriousness Scale Based on 
Boys, Mothers, and Teachers: Concurrent and Predictive Validity for African-Americans 
and Caucasians, 34 CRIMINOLOGY 493 (1996). The accuracy of early reporting has been 
questioned by one researcher, but only to the extent of recommending that standard 
quantitative measures should be supplemented by qualitative ones. See Stephen Case, 
Young People ‘At Risk’ of What?: Challenging Risk–Focused Early Intervention as Crime 
Prevention, 7 YOUTH JUST. 171 (2006).  
282 An acronym for Drug Abuse Resistance Education, it was originated in the Los 
Angeles Unified School District by then-LAPD chief Daryl Gates in 1983. It became 
national as part of Nancy Reagan’s “Just Say No to Drugs” initiative. See Christopher 
Ingraham, A Brief History of DARE, the Anti-Drug Program Jeff Sessions Wants to Revive, 
WASH. POST (July 12, 2017), https://www.washingtonpost.com/news/wonk/wp/2017/07 
/12/a-brief-history-of-d-a-r-e-the-anti-drug-program-jeff-sessions-wants-to-revive/ [https:// 
perma.cc/EX4V-BC2W]. 
283 Researchers are close to unanimous in concluding that the DARE program had no 
significant impact on drug use and was generally ineffective. See Donald R. Lynam et al., 
Project DARE: No Effects at 10-Year Follow-Up, 67 J. CONSULTING & CLINICAL PSYCH. 
590 (1999); Dennis P. Rosenbaum, Just Say No to D.A.R.E., 6 CRIMINOLOGY & PUB. 
POL’Y 815 (2007); Steven L. West & Keri K. O’Neal, Project D.A.R.E Outcome 
Effectiveness Revisited, 94 AM. J. PUB. HEALTH 1027 (2004). 
336 OREGON LAW REVIEW [Vol. 100, 261 
prevalent response involves placing uniformed officers in public 
schools and enlisting them to enforce “zero-tolerance” policies for 
minor offenses.284 This resort to age-old coercive practices—perhaps 
equivalent to stationing royal troops in a rebellious province—
inevitably leads to further increases in our already astronomical 
incarceration rates.285 
A prevention-based approach to at-risk youngsters would involve 
after-school and weekend activities that get children off the streets, 
engage parents and other people in the community, and provide a 
range of supportive services that can produce substantial reductions in 
the crime rate.286 At present, no institution in our criminal justice 
system has an incentive to devote resources to a program that lies 
beyond its immediate mission and will only produce clear benefits a 
decade later. Opponents argue that such programs will inevitably 
include children who would never have committed a crime, and they 
will not prevent all their enrollees from doing so. State legislators 
frequently add the further objection that these programs are rewarding 
284 See Aaron Kupchik & Geoff Ward, Race, Poverty, and Exclusionary School 
Security: An Empirical Analysis of U.S. Elementary, Middle, and High Schools, 12 YOUTH 
VIOLENCE & JUV. JUST. 332 (2014); Allison Ann Payne & Kelly Welch, Modeling the 
Effects of Racial Threat on Punitive and Restorative School Discipline Practices, 48 
CRIMINOLOGY 1019 (2010).  
285 See FELD, supra note 9, at 173–93; NANCY A. HEITZEG, THE SCHOOL-TO-PRISON 
PIPELINE: EDUCATION, DISCIPLINE, AND RACIALIZED DOUBLE STANDARDS (2016); 
CHRISTOPHER A. MALLETT, THE SCHOOL-TO-PRISON PIPELINE: A COMPREHENSIVE 
ASSESSMENT (2015); MONIQUE W. MORRIS, PUSHOUT: THE CRIMINALIZATION OF BLACK 
GIRLS IN SCHOOLS (2016). 
286 See FARRINGTON & WELSH, supra note 281, at 105–57; CHILD DELINQUENTS: 
DEVELOPMENT, INTERVENTION, AND SERVICE NEEDS (Rolf Loeber & David P. Farrington 
eds., 2001); Steve Aos et al., The Comparative Costs and Benefits of Programs to Reduce 
Crime: A Review of Research Findings with Implications for Washington State, in 
BRANDON C. WELSH ET AL., COSTS AND BENEFITS OF PREVENTING CRIME 149 (Routlege 
2018); Adrian Bell et al., Diverting Children and Young People from Crime and the 
Criminal Justice System, in YOUTH JUSTICE: CONTEMPORARY POLICY AND PRACTICE 91 
(Barry Goldson ed., 1999); Kenneth A. Dodge et al., Impact of Early Intervention on 
Psychopathology, Crime, and Well-Being at Age 25, 172 AM. J. PSYCHIATRY 59 (2015); 
Denise C. Gottfredson et al., School-Based Crime Prevention, in EVIDENCE-BASED CRIME 
PREVENTION, supra note 201, at 56; Peter W. Greenwood et al., Estimating the Costs and 
Benefits of Early Childhood Intervention: Nurse Home Visits and the Perry Preschool, in 
EVIDENCE-BASED CRIME PREVENTION, supra, at 123; Peter W. Greenwood, Prevention: 
The Cost-Effectiveness of Early Intervention as a Strategy for Reducing Violent Crime, in 
MINIMIZING HARM: A NEW CRIME POLICY FOR MODERN AMERICA, supra note 281, at 
67. “We now know what works to prevent delinquency and how to intervene effectively
when it occurs. And we have the right prescription for the diagnosis: The approach must
be comprehensive and balanced, combining accountability with treatment and a heavy
dose of prevention.” CHILD DELINQUENTS: DEVELOPMENT, INTERVENTION, AND SERVICE 
NEEDS, supra, at x.
2022] Criminal Justice Through Management: From Police, Prosecutors, 337 
Courts, and Prisons to a Modern Administrative Agency
children for bad behavior.287 But preventing a single offense followed 
by a ten-year prison sentence would save society about half a million 
dollars, and if we add another half million for the teenager who did 
not get knifed or the storekeeper who did not get shot, we would have 
enough money to fund a yearlong after school and weekend program 
for one hundred children. That is exactly the reason why criminal 
justice should be delegated to a prevention-oriented administrative 
agency. 
A second preventive strategy, at a different stage in the criminal 
justice process, is proactive targeting of police forces. Sometimes 
described, either in part or in its entirety, as “hot spots” policing, it 
draws on advances in criminological theory to turn attention away 
from both supposedly crime-prone individuals and supposedly crime-
infested communities, and toward the microgeography of locations 
where crimes are documented as occurring.288 The idea is that crime 
can be reduced by concentrating police resources in these locations, 
changing their lighting, traffic flow and spatial structure, and working 
cooperatively with enterprises, institutions, and informal groups that 
are active in the area.289 Evidence suggests that this is an effective 
way to prevent crime from occurring, not only in the specific hot 
spots but throughout the relevant jurisdiction.290 Implementing it, 
however, requires continual supervision of police to ensure that they 
287 See Barry Anderson, Youth Crime and the Politics of Prevention, in YOUTH 
JUSTICE: CONTEMPORARY POLICY AND PRACTICE, supra note 286, at 75. 
288 See generally Anthony A. Braga et al., Can Policing Disorder Reduce Crime? A 
Systematic Review and Meta-Analysis, 52 J. RSCH. CRIME & DELINQ. 569 (2015); 
Lawrence W. Sherman, Policing for Crime Prevention, in EVIDENCE-BASED CRIME 
PREVENTION, supra note 201; David Weisburd, From Criminals to Criminal Contexts: 
Reorienting Criminal Justice Research and Policy, 10 ADVANCES CRIMINOLOGICAL 
THEORY 197 (2002); Weisburd & Eck, supra note 253. 
289 New York City’s Compstat is an example of targeted policing, although it does not 
use the full panoply of techniques and resources that characterizes this approach. See 
BUREAU OF JUST. ASSISTANCE, supra note 200; ZIMRING, supra note 200, at 100–51; 
Willis et al., supra note 233.  
290 See, e.g., Anthony A. Braga, The Effects of Hot Spots Policing on Crime, 578 
ANNALS AM. ACAD. POL. & SOC. SCI. 104 (2001) (seven of nine settings where hot spot 
policing was used showed a decrease in both crime and disorder); Richard Rosenfeld et al., 
The Effects of Directed Patrol and Self-Initiated Enforcement on Firearm Violence: A 
Randomized Controlled Study of Hot Spot Policing, 52 CRIMINOLOGY 428 (2014) 
(targeting policing reduced non-domestic firearm assaults without displacement to other 
areas, but did not reduce firearm robberies); Lawrence W. Sherman & David Weisburd, 
General Deterrent Effects of Police Patrol in Crime “Hot Spots”: A Randomized, 
Controlled Trial, 12 JUST. Q. 625 (1995) (over a one-year period, hot spot policing in 
Minneapolis produced reductions in crime and disorder). 
338 OREGON LAW REVIEW [Vol. 100, 261 
deploy to the areas in question, generally an alteration of existing 
culture that allows police to spend much of their time in more benign 
locations or to circulate within relatively extensive areas at their own 
discretion. It requires extensive information about crime patterns that 
can be obtained only by staff skilled in data collection and 
analysis.291 Moreover, the staff deployed to the identified hot spots 
should include social service workers, architects, and urban planners 
as well as uniformed officers.292 All this will be possible only if 
police are part of an administrative structure that can supervise 
individual officers, change their cultural patterns, and supplement 
their efforts with a large number of other staff members with entirely 
different skills.293 
A third locus of prevention occurs at the end of the criminal justice 
process, when the offender is released from prison. Given our 
incarceration rates, this involves hundreds of thousands of people 
every year. The motion picture cliché, where the inmate is given a 
shoebox with his paltry possessions and a $10 or $100 bill (depending 
on when the movie was made) is unfortunately realistic, and while it 
can lead to good drama, it is bad public policy.294 By what rational 
calculation could we decide to spend $500,000 to imprison a person 
for ten years and then release him with no resources, no support and 
no training except the increased experience in criminal activity that 
291 See Jerry. H. Ratliffe, Crime Mapping and the Training Needs of Law Enforcement, 
10 EUR. J. CRIM. POL’Y & RES. 65 (2004) (describing computer programs needed for 
techniques of spatial modeling and statistical spatial analysis that generate the data needed 
for targeted policing). 
292 If proactive targeting is limited to redirecting the patrol patterns of uniformed 
officers, as in the Minneapolis trial, see Sherman & Weisburd, supra note 290, it will 
produce only limited effects, and fail to prevent the general attitudes that led to the George 
Floyd murder. 
293 See Capers, supra note 100, at 40–48. Although the technology used for proactive 
targeting can be deployed in a way that deprives citizens of basic civil liberties, see 
Andrew Guthrie Ferguson, Big Data and Predictive Reasonable Suspicion, 163 U. PA. L. 
REV. 327 (2015), Professor Capers strongly endorses it for a future when people of color 
will constitute the majority of the American population on grounds that the police will be 
adequately supervised in this new political environment. 
294 The simple device of providing the released ex-felon more funding would probably 
decrease recidivism. See Malcolm M. Feeley, The Effects of Increased Gate Money: Final 
Report on the Parolee Reintegration Project for the Department of Correction (Dec. 10, 
1974) (unpublished study for the Connecticut Department of Corrections) (on file with 
author); Charles D. Mallar & Craig V.D. Thornton, Transitional Aid for Released Prisoners: 
Evidence from the Life Experiment, 13 J. HUM. RES. 208, 219–21 (1978); PETER ROSSI ET 
AL., INTER-UNIV. CONSORTIUM FOR POL. & SOC. RSCH., TRANSITIONAL AID RESEARCH 
PROJECT (TARP), 1976-1977 (1992), https://doi.org/10.3886/ICPSR07874.v1 [https:// 
perma.cc/74WZ-FMWC]. 
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Courts, and Prisons to a Modern Administrative Agency
he learned from his fellow prisoners, rather than spending $450,000 
to imprison him for nine years and then providing $50,000 worth 
of housing assistance, postprison counseling and job-placement 
services?295 The allocation of costs once again demonstrates the 
system’s medieval preference for after-the-fact punishment over a 
modern, administratively oriented effort to prevent future crimes. 
Perhaps it is unfair to call the current system medieval; perhaps it is 
based on the belief that prison itself will transform the person into a 
law-abiding citizen, a belief that has been proven false only over 
the previous two centuries. In any event, a prevention-oriented 
administrative agency would devote substantial resources and staff to 
prisoner reentry.  
The argument that criminal law should focus on prevention has 
been subject to criticism on at least two grounds: first, that it shifts 
blame away from the individual wrongdoer, and second, that it 
demands long-term and wide-ranging solutions that leave us without 
adequate remedies for criminal behavior in the present time. The first 
of these criticisms is readily answered.296 No administrative agency 
295 For discussions of the criteria for approaches that would give the released inmate 
the best chance of succeeding, see PETERSILIA, supra note 126, at 171–220; DANIEL  
P. MEARS & JOSHUA C. COCHRAN, PRISONER REENTRY IN THE ERA OF MASS
INCARCERATION 125–251 (2015); Richard P. Seiter & Karen R. Kadela, Prisoner Reentry:
What Works, What Does Not, and What Is Promising, 49 CRIME & DELINQ. 360 (2003).
296 This argument is generally associated with retributivism. See MICHAEL MOORE, 
PLACING BLAME: A GENERAL THEORY OF THE CRIMINAL LAW 104–87 (1997); ANDREW 
VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976); Christopher 
Bennett, The Varieties of Retributive Experience, 52 PHIL. Q. 145 (2002); Joel Feinberg, 
The Expressive Function of Punishment, in WHY PUNISH? HOW MUCH?: A READER ON 
PUNISHMENT 111 (Michael Tonry ed., 2011). One striking feature of these arguments is its 
institutional obliviousness; there is little mention of police, prosecutors or prisons (as 
opposed to sentences) nor any discussion of the realities of the criminal justice system. It 
is certainly worth noting that political conservatives, who are generally so skeptical about 
the government and its capacities, are willing to treat it as an inerrant and impartial 
dispenser of justice when they are championing retributive punishment. The more basic 
point, however, is that the entire approach ignores the way in which criminal justice is part 
of the overall system by which people in our society live together and carry out their 
collective purposes. See, e.g., ALAIN TOURAINE, WHAT IS DEMOCRACY? (David Macey 
trans., 1997). For an illustration of this point, see Kevin M. Carlsmith et al., Why Do We 
Punish? Deterrence and Just Deserts as Motives for Punishment, 83 J. PERSONALITY & 
SOC. PSYCH. 284 (2002) (measuring people’s views on appropriate sentences for various 
offenders). Framing the question in a sentencing context places the experimental subjects 
in a fixed, and perhaps authoritarian context. An approach more consistent with democracy 
would be to ask people what general strategy they want government to adopt regarding 
crime. The essential role of individuals in a democracy, after all, is as voters, not jurors. It 
is entirely possible to have a functioning democracy without citizen juries, and that is in 
340 OREGON LAW REVIEW [Vol. 100, 261 
has any difficulty combining ex ante preventative strategies and ex 
post sanctions. The two approaches are complementary, not 
conflicting, and the relationship between them is straightforward. 
Concerted efforts should be made to prevent harm, but no such effort 
is likely to be entirely successful and thereby obviate the need to 
sanction those who nonetheless commit the undesired behavior.297 
Promulgating rules to limit pollution or avoid industrial accidents and 
inspecting factories to ensure those rules are followed, does not 
preclude the imposition of penalties on those who disobey despite 
the agency’s best efforts. The perception that there is any conflict 
between these strategies seems to originate with the pre-
administrative mentality that law is exclusively coercive, that it can 
act only by being punitive, or disproportionate and over-punitive. 
Administrative thinking focuses on compliance rates, recognizing that 
the rate will vary based on the nature of the rules, the resources 
devoted to enforcement, and the underlying economic and social 
realities of the regulated parties.298 Implicit in this mode of thought is 
that compliance will never be complete and that sanctions will be 
needed to supplement preventive efforts. 
The argument that preventive approaches involve long-term and 
wide-ranging solutions is equally inapplicable to an administrative 
approach.299 Going back to Weber, the most basic element in his 
classic definition of a bureaucratic agency is that it has a defined 
subject matter jurisdiction.300 A criminal justice agency would be 
limited to criminal justice, as this term is generally understood in our 
fact what is done in most European nations, but impossible to have a democracy without 
voters. 
297 See generally Babbitt et al., supra, note 244; Robert L. Rabin, Agency Criminal 
Referrals in the Federal System: An Empirical Study of Prosecutorial Discretion, 24 
STAN. L. REV. 1036 (1971). 
298 See BARDACH, supra note 56; BARDACH & KAGAN, supra note 56; MAZMANIAN, 
supra note 56; EDWARD L. RUBIN, BEYOND CAMELOT: RETHINKING POLITICS AND LAW 
FOR THE MODERN STATE 144–78 (2005). 
299 See WILSON, supra note 72. Wilson acknowledges that many people who commit 
crimes are poor, but points out that most poor people do not commit crimes. The criminal 
process, he insists, should focus on holding people responsible for their actions. But this 
argument, like the previous one, seems unconvincing. There is nothing inconsistent about 
addressing the causes of crime and holding those who commit crimes responsible, any 
more than there is an inconsistency in abating the causes of malaria and treating people 
who succumb to it. Of course, resources are limited, but money is fungible. We could get 
the money we need to capture and punish criminals by taking it away from education and 
housing assistance, but we could also get it by building one fewer 12-billion-dollar aircraft 
carrier.  
300 WEBER, supra note 11, at 215–23. 
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Courts, and Prisons to a Modern Administrative Agency
society,301 and any preventative strategy that it developed would need 
to remain within the ambit of that definition. Better housing, better 
education, increased welfare benefits, and other social programs may 
well have beneficial effects on the crime rate, but that is a matter for 
policy decisions that would lie outside the ambit of a criminal justice 
agency. On the other hand, the fact that this agency would not be 
primarily responsible for these other policy areas does not mean 
that the agency should ignore them. Another advantage of an 
administrative approach, as will be described in the following section, 
is that it will facilitate cooperation between the criminal justice 
agency and the agencies responsible for social policy in these other 
areas. There are good reasons for jurisdictional specificity regarding 
the agencies of government, but none for lack of coordination among 
them.302  
D. Decentering Criminal Trials
Between the beginning and endpoint of the criminal process 
discussed in previous sections—the police patrol and the 
penitentiary—lies the criminal trial. It continues to be emblematic, 
and close to definitional, of American criminal justice, with 
investigation, arrest, indictment, and punishment leading up to it or 
flowing from it. In most law schools, the standard criminal law 
course, a required first year subject, focuses on the elements of the 
crime that must be alleged at trial and underemphasizes or ignores 
policing, plea bargaining practice, and punishment.303 The trial is 
301 See supra note 68 (Omnibus Crime Control and Safe Streets Act definition). 
302 A final argument that should be briefly noted is that the focus on prevention might 
lead to punishing people before they have done anything wrong. This possibility is 
depicted in science fiction terms in a story by PHILLIP K. DICK, The Minority Report, in 
SELECTED STORIES OF PHILLIP K. DICK 223 (Houghton Mifflin Harcourt 2013) (made into 
film, MINORITY REPORT, directed by Stephen Spielberg). In the real, or perhaps merely 
the contemporary world, it can arise in connection with nonconsummate offenses such as 
attempts. See Peter Asp, Prevention and Criminalization of Nonconsummate Offenses, in 
PREVENTION AND THE LIMITS OF THE CRIMINAL LAW, supra note 4, at 23. But of all the 
problems that might arise in the criminal justice system, whether in its present form or in 
the administrative reformulation suggested here, this one seems to be fully addressed by 
established principles of due process. Difficult questions might of course arise; the point is 
that we already have the conceptual framework for dealing with them. 
303 See, e.g., SANFORD H. KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES 
AND MATERIALS (10th ed. 2017) (chapter headings are: Institutions and Processes; The 
Justification of Punishment; Defining Criminal Conduct; The Elements of Punishment; 
Rape; Homicide; The Significance of Resulting Harm; Group Criminality; Exculpation; 
Theft Offenses; Discretion); PAUL MARCUS ET AL., CRIMINAL LAW (9th ed. 2021) 
342 OREGON LAW REVIEW [Vol. 100, 261 
much beloved by authors of movies and television shows because of 
its obviously theatrical character. This owes its origin, at least in part, 
to medieval trial by combat,304 a major source of entertainment at the 
time; in fact, many of the famous romances of this era use such trials 
as their climactic scene.305  
This emphasis on criminal trials creates a distorted image of 
reality. As a practical matter, it is well known that relatively few 
criminal convictions are obtained through trial. Most cases, generally 
more than ninety-five percent, are resolved by plea bargaining, as 
noted previously.306 Trials are a relatively insignificant channel in the 
Katzenbach Commission’s funnel.307 It might be argued that plea 
bargaining takes place “in the shadow of the law,”308 that its 
dynamics are ultimately governed by the threat of trial and the 
protections that criminal procedures provide. But when trials occur so 
rarely, that shadow becomes attenuated to the point of near 
invisibility.309 Plea bargaining has developed dynamics of its own, 
an interplay of the prosecutors’ desire to achieve high conviction 
rates, the defense attorneys’ efforts to salvage some reasonable 
opportunities for their clients, and the insistent need to deal quickly 
(chapter headings are: The Province and Limits of the Criminal Law; The Decision to 
Punish; The Act Requirement; The Mental State; Parties to Crimes; Principal Offenses; 
The Inchoate Offenses; Defenses); JOHN KAPLAN ET AL., CRIMINAL LAW: CASES AND 
MATERIALS (9th ed. 2021) (chapter headings are: The Purposes and Limits of Punishment; 
The Criminal Act; The Guilty Mind; Causation; Intentional Homicide; Unintentional 
Homicide; Capital Murder and the Death Penalty; Defensive Force, Necessity, and Duress; 
Mental Illness as a Defense; Attempt: Complicity; Conspiracy; Rape; Theft Offenses; 
Perjury, False Statements, and Obstruction of Justice). This is not to suggest that these 
books entirely ignore issues such as policing, prisons, alternative punishment, or the 
organization of public defender services and certainly not that the various authors are 
unaware of these issues. Rather, the topics covered reflect the long-established and deeply 
ensconced curriculum of the first-year criminal law course. 
304 GEORGE NEILSON, TRIAL BY COMBAT (1890); Edward L. Rubin, Trial by Battle. 
Trial by Argument., 56 ARK. L. REV. 261 (2003). 
305 E.g., THE SONG OF THE CID 180–88 (Burton Raffel trans., 2009) (verses 126–30); 
THE SONG OF ROLAND 37–38 (Glyn Burgess trans., 1990) (verses 278–86); CHRÉTIEN DE 
TROYES, LANCELOT, THE KNIGHT OF THE CART 82 (W.W. Comfort trans., 1996) (vv. 
7005–7119). 
306 See supra note 111, 119. 
307 See supra p. 333 (Figure 1). 
308 The phrase comes from Robert H. Mnookin & Lewis Kornhauser, Bargaining in 
the Shadow of the Law: The Case of Divorce, 88 YALE L.J. 950 (1979). 
309 William J. Stuntz, Plea Bargaining and Criminal Law’s Disappearing Shadow, 117 
HARV. L. REV. 2548 (2004).  
2022] Criminal Justice Through Management: From Police, Prosecutors, 343 
Courts, and Prisons to a Modern Administrative Agency
and inexpensively with potentially overwhelming numbers.310 No 
approach to criminal justice is realistic if it fails to recognize plea 
bargaining, rather than trial, as the modal means of disposition once 
the arrestee has been arraigned.  
On a more conceptual level, areas of government regulation that 
are managed by modern administrative agencies enable us to place 
courtroom trials in their proper perspective. They are in fact an 
element of many regulatory systems, such as financial services or 
environmental protection,311 but it would be bizarre to treat them as 
the central or defining element of governmental regulation in these 
areas. Instead, the agency’s primary concerns are the overall statutory 
framework, the rules it promulgates to implement the statute, its 
strategy to obtain compliance with those rules, and the entire range of 
sanctions that it can deploy in cases of noncompliance. Resort to 
criminal indictment is a delimited response when other means of 
obtaining compliance have failed. Moreover, a criminal trial is only 
one possible consequence of the indictment, and the procedures 
associated with a criminal trial are thus only a small corner of the 
much more extensive system.312  
In fact, there is an irony embodied in the conceptual centrality of 
criminal trials. We see the trial as the primary means of protecting the 
rights of the accused, and we debate the intricate details of criminal 
procedure on the basis of this apparent commitment. But the trial is in 
fact the area where an accused person is least likely to escape the 
state’s desire to inflict severe punishment. As the Katzenbach 
Commission’s funnel indicates, police release a significant proportion 
of those they detain without charging them and prosecutors or judges 
dismiss many of the remaining cases before trial. But an accused 
person who goes to trial, for one reason or another, is almost always 
found guilty. Of the defendants who went to trial in the federal system 
310 See HESSICK, supra note 37; RAKOFF, supra note 26; Robert M. Bohm, 
“McJustice”: On the McDonaldization of Criminal Justice, 23 JUST. Q. 127 (2006); Josh 
Bowers, Punishing the Innocent, 156 U. PA. L. REV. 1117 (2008); Burke, supra note 111; 
Finkelstein, supra note 37; Wright, supra note 30. 
311 See, e.g., 18 U.S.C. § 1348 (prescribing fines and prison sentences up to twenty-
five years for securities and commodities fraud); 42 U.S.C. § 6928 (prescribing fines and 
prison sentences up to two years for improper transportation or handling of hazardous 
waste). 
312 Perhaps these other modes of obtaining compliance, such as a cease-and-desist 
order, can be analogized to plea bargaining, with trials being no more frequent in criminal 
law than in these administrative settings.  
344 OREGON LAW REVIEW [Vol. 100, 261 
in 2016, eighty-four percent were found guilty.313 This figure, 
striking on its own terms, exaggerates the chances of acquittal 
because of the high percentage of defendants who plead guilty, in 
some cases because they conclude, or are told by their appointed 
attorney, that they cannot win. The percentage of total defendants 
who were acquitted at trial was 0.4%; most of those who escaped 
conviction did so because the government dismissed their case.314 In 
2019, there were twenty judicial districts where not a single defendant 
was acquitted at trial and another twenty where there was only one.315 
Thus, the criminal trial, with its highly touted protections, is the stage 
where the defendant is least likely to evade punishment.316 A detainee 
would be better advised to know how to appeal to the sympathies of 
the grizzled officer manning the operations desk at a local police 
station than to learn the elements of a crime that law schools so 
assiduously teach. This is not to disparage the value of criminal 
procedure protections but only to note that, as a practical matter, they 
should not be regarded as the central features of our criminal justice 
system. They should of course remain available to any defendant who 
wishes to invoke them, but we must not delude ourselves into 
thinking that they have the determinative effects that law school 
courses or television shows suggest. 
Implementing an administrative approach to criminal justice would 
put the trial in its proper perspective, the perspective adopted by 
administrative agencies in other areas. The trial is a mechanism for 
extreme and unusual situations, not one that should serve as the 
organizing principle for the system in its entirety. Decentering the 
trial in this way focuses attention on the aspects of that system that 
determine its basic structure, its effect on the majority of people that it 
313 BUREAU OF JUST. STAT., supra note 36 at 21–22 (Table 4.2; 1,550 out of 1,854 
found guilty).  
314 Id. (304 acquitted at trial out of 76,639 whose cases were terminated). Overall, 9% 
of those charged were not convicted, but the vast majority of these, 96%, went free 
because their case was dismissed. See also U.S. DEP’T OF JUST., UNITED STATES 
ATTORNEYS’ ANNUAL STATISTICAL REPORT: FISCAL YEAR 2019, at 5–7, https://www 
.justice.gov/usao/page/file/1285951/download [https://perma.cc/RKQ2-34ML] (Table 2A; 
0.4% overall acquittal rate for 2019). Using slightly different categories than the Bureau of 
Justice Statistics, the Attorneys’ Report indicates that 7% of these charged were not 
convicted, with 95% of this total resulting from government dismissal of the case. 
315 U.S. DEP’T OF JUST., supra note 314, at 5–7 (Table 2A; No district had more than 
twelve acquittals).  
316 See BUREAU OF JUST. STAT., U.S. DEP’T OF JUST., SOURCEBOOK OF CRIMINAL 
JUSTICE STATISTICS – 1991, at 547 (1991) (Table 5.55; in a study of 14 states, the acquittal 
rate was 1%).  
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Courts, and Prisons to a Modern Administrative Agency
deals with, and its success in preventing crime. Instead of viewing 
police practices and prosecutorial policies as antecedents to trials, 
and probation, prison, and other modes of punishment as the 
consequences of trials, we can see a continuous flow of interactions 
between those who enter the system and the various elements of state 
authority. The value of a single administrative agency for dealing 
with this process and coordinating those authorities then becomes 
apparent.  
A second advantage of decentering the criminal trial is that it 
facilitates coordination of the criminal justice system with other 
elements of the modern administrative state, such as public health, 
education, welfare, housing, and mental health.317 Prevention efforts, 
even when located within the jurisdictional boundaries of the criminal 
justice system, benefit greatly from coordination among governmental 
programs, and an administrative approach to maintaining pubic order 
would facilitate such coordination. Primary and secondary school 
teachers can help identify children who are subject to criminogenic 
influences and would benefit from interventions.318 Conversely, order 
within schools is best maintained by specially trained staff who share 
the goals and perspective of the teachers, not by an armed, uniformed 
invader. Instead of excluding ex-felons trying to live law-abiding 
lives from public housing and responding to the disruptions that will 
nonetheless occur by arrest, particularized determinations should be 
made on an individualized basis by trained specialists who work with 
housing authorities and can impose administrative remedies such as 
temporary or permanent exclusion that will be more fair and less 
expensive.  
Similarly, jails have currently become repositories for people with 
mental health problems.319 This is understandable, since these 
problems often produce the sort disruptive and annoying, but not truly 
317 See LORRAINE MAZEROLLE & JANET RANSLEY, THIRD PARTY POLICING (2005); 
Lorraine Mazerolle & Janet Ransley, Advocate: The Case for Third-Party Policing, in 
POLICE INNOVATION: CONTRASTING PERSPECTIVES, supra note 230, at 191; Friedman, 
supra note 84, at 985–91 (coordination of police with other government services, and 
reliance on these services in place of police in certain situations). 
318 See sources cited supra note 281. 
319 See James & Glaze, supra note 90, at 1 (Sixty percent of jail inmates exhibited 
symptoms of mental health disorder in the year prior to arrest); ALISA ROTH, INSANE: 
AMERICA’S CRIMINAL TREATMENT OF MENTAL ILLNESS (2018); John R. Belcher, Are 
Jails Replacing the Mental Health System for the Homeless Mentally Ill?, 24 COMMUNITY 
MENTAL HEALTH J. 185 (1988); Douglas Shenson et al., Jails and Prisons: The New 
Asylums?, 80 AM. J. PUB. HEALTH 655 (1990).  
346 OREGON LAW REVIEW [Vol. 100, 261 
dangerous behavior that will lead to the person being arrested, held in 
custody, and then released through the operation of the Katzenbach 
Commission’s funnel, only to be arrested later on.320 Admittedly, 
there is a serious dearth of mental health facilities in our society, but 
they are certainly not nonexistent.321 A comprehensive criminal 
justice agency would be able to coordinate with those facilities that 
exist, and perhaps encourage the development of new ones to deal 
more effectively and humanely with people who cause disorder as a 
result of disordered thought processes, rather than any conscious 
decision to break the law.  
V 
RESPONSE TO OBJECTIONS 
Administrative governance is far from popular these days; it has 
been roundly attacked by scholars for many decades, and anti-
administrative rhetoric has become something of a fixture in 
American politics.322 Proposing a new administrative agency that 
would combine and control a wide range of preexisting, traditionally 
structured institutions might seem contrary to current sensibilities. 
Proposing a new agency in an area where the government’s existing 
performance has been notoriously oppressive might seem outright 
perverse. In this final Section, we consider three specific objections to 
a unified agency for criminal justice: that it would be anti-democratic, 
that it would be an instrumentality of excessive and counterproductive 
government control, and that it would be ineffective in this context. 
The idea that an administrative or bureaucratic approach to 
criminal justice is anti-democratic features prominently in a recent 
law review symposium that calls for community control of criminal 
justice functions.323 The symposium is accompanied by a White 
Paper stating thirty specific proposals to implement this idea, and 
320 See KOHLER-HAUSMANN, supra note 149. 
321 See RICHARD G. FRANK & SHERRY A. GLIED, BETTER BUT NOT WELL: MENTAL 
HEALTH POLICY IN THE UNITED STATES SINCE 1950 (2006); Bernard E. Harcourt, 
Reducing Mass Incarceration: Lessons from the Deinstitutionalization of Mental Hospitals 
in the 1960s (Univ. of Chi. Pub. L.& Legal Theory, Working Paper No. 335, 2011). 
322 See EDWARD L. RUBIN, MAKING REGULATION WORK: POLICIES, TECHNIQUES 
AND THE ABOLITION OF PROPERTY RESTRICTIONS ix–xvi, 181–206 (2021); Gillian E. 
Metzger, The Supreme Court 2016 Term: Foreword: 1930s Redux: The Administrative 
State Under Siege, 131 HARV. L. REV. 1 (2017). 
323 Joshua Kleinfeld et al., White Paper of Democratic Criminal Justice, 111 NW. U. L. 
REV. 1693 (2017) (introduction to the symposium). This approach draws its inspiration 
from the work of William Stuntz. See, e.g., STUNTZ, supra note 149. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 347 
Courts, and Prisons to a Modern Administrative Agency
signed by nineteen prominent criminal justice scholars and opinion 
leaders who identify themselves as “democratizers.”324 Joshua 
Kleinfeld, in his introduction to the Symposium, specifically 
identifies a democratic approach to criminal justice as opposed to the 
Weberian, bureaucratic model.325  
Some of the proposals in the White Paper in fact overlap with the 
administratively based reforms that we recommend in this Article, 
such as treating citizens equally, using criminal punishment as a last 
resort, eliminating “racialized” policing, increasing funding for public 
defenders, improving the training for both public defenders and 
prosecutors, imposing fairness constraints on plea bargaining, shifting 
toward rehabilitative responses, and relying on restorative justice 
techniques.326 But the organizing principle of the White Paper and the 
Symposium is that criminal justice is and should be a local, 
community-based institution, democratically organized and operated, 
and administered to the extent possible by lay-leaders selected from 
within the affected community.  
There are several fairly obvious empirical arguments against this 
proposal. One argument is that it suffers from the pastoral nostalgia 
that Oliver Goldsmith captured when he wrote “The Deserted 
Village” in 1770.327 It draws its inspiration from images of small, 
rustic towns—often fantasy images of ingrown societies that were in 
fact seething with misery, inequality, and petty hatreds. Such 
nostalgia, whether justified or not, is inapplicable and thus 
dysfunctional in this era of High Modernity.328 Today’s big cities are 
not comprised of a multiplicity of urban villages, each with its own 
cultural coherence and accepted norms, but rather are interconnected 
sprawls of residential properties whose inhabitants travel long 
324 Kleinfeld et al., supra note 323. 
325 Id.  
326 Id. at 1697–1705. 
327 Oliver Goldsmith, The Deserted Village, in ENGLISH PROSE AND POETRY: 1660-
1800, at 306 (Frank Brady & Martin Price eds.,1961) (“Sweet Auburn! loveliest village of 
the plain, Where health and plenty cheer’d the laboring swain, . . . Dear lovely bowers of 
innocence and ease, Seats of my youth, when every sport could please . . .”). See 
RAYMOND WILLIAMS, THE COUNTRY AND THE CITY 35–45 (1973) (prevalence of 
nostalgia for rural village life throughout all eras of English literature).  
328 See RUBIN, supra note 298, at 1–6, 46–48, 115–20 (2005) (discussing role of social 
nostalgia in our attitudes toward administrative state and the theoretical basis of 
democracy). 
348 OREGON LAW REVIEW [Vol. 100, 261 
distances to work or shop and socialize in cyberspace.329 Second, 
managing any basic function of modern society, whether it is 
education, public health, environmental protection, or criminal justice 
is a complex task, requiring specialized knowledge and full-time 
attention. Untrained volunteers can certainly provide valuable advice 
and information, but they are not likely to function effectively in a 
managerial role. The chaos caused by the decentralization of the New 
York City public school system in the 1960s, which one informed 
observer characterized as “the great school wars,”330 indicates the 
difficulties of delegating modern governance to amateurs.331 Third, 
delegating authority to small communities does not necessarily solve 
the abiding problem of democracy, which is the tyranny of the 
majority.332 The majority within that community, even if it is a 
minority within the nation as a whole, is fully capable of mistreating 
those in its midst whom it regards as Other.333 
But proposing democratization as an argument against an 
administrative approach to criminal justice raises a more basic 
problem, one that is conceptual rather than empirical. Democracy and 
administration are simply not opposing forces. A clue is that they 
developed in the Western World simultaneously; the advent of 
modern administrative states occurred at the end of the eighteenth 
century, at the same time as the American Revolution, the French 
Revolution, and the development of the British Cabinet, which took 
329 See, e.g., MARK HUTTER, EXPERIENCING CITIES (3rd ed. 2016); ZACHARY P. 
NEAL, THE CONNECTED CITY: HOW NETWORKS ARE SHAPING THE MODERN METROPOLIS 
(2013). See also GEORGE A. GONZALEZ, URBAN SPRAWL, GLOBAL WARMING, AND THE 
EMPIRE OF CAPITAL (2009) (dispersed, low-density, and disorganized character of modern 
residential areas due to economic forces). 
330 See, e.g., DIANE RAVITCH, THE GREAT SCHOOL WARS: NEW YORK CITY, 1805–
1973: A HISTORY OF THE PUBLIC SCHOOLS AS BATTLEFIELD OF SOCIAL CHANGE (1974).  
331 The idea that ordinary citizens can function as government officials is another 
example of social nostalgia, in this case for Ancient Athens. See RUBIN, supra note 298, at 
3, 5, 42, 115–16. Even in Athens, only a minority of citizens (perhaps one-sixth) attended 
the Assembly, see PAUL CARTLEDGE, DEMOCRACY 112–13 (2016), and these were 
probably the wealthier city dwellers. Moreover, the military leaders (strategoi) were 
elected and could serve an unlimited number of terms. See JOINT ASS’N OF CLASSICAL 
TCHRS., THE WORLD OF ATHENS 210 (1984) (“The Athenians had the sense not to 
sacrifice efficiency to democratic principle in an era when they were at war three years in 
every four.”). 
332 See THE FEDERALIST NO. 10 (James Madison); JOHN STUART MILL, ON LIBERTY 
69–85 (Batoche Books 2001) (1859). 
333 See John Rappaport, Some Doubts About “Democratizing” Criminal Justice, 87 U. 
CHI. L. REV. 711 (2020). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 349 
Courts, and Prisons to a Modern Administrative Agency
executive authority away from the king.334 Further inquiry reveals 
that it was these emerging democratic regimes that instituted 
administrative government. Professor Kleinfeld’s account of Weber’s 
theory is generally accurate, but he identifies one element of it as “the 
displacement of the laity by an officialdom.”335 It was not the laity, or 
the “community,” that administrative government displaced at the end 
of the eighteenth century, however. It was the nobility, ruling through 
a system of privilege and patronage, and this displacement is in fact 
the historical process that Weber identifies.336  
What these developments indicate is that administration or 
bureaucracy is not the enemy of democracy but the instrument of 
democracy. When American democracy is confronted with a problem 
that affects it as a nation, it creates an administrative agency or 
expands the jurisdiction of an existing agency in order to solve the 
problem.337 Sometimes this response is designed well and sometimes 
334 See RUBIN, supra note 298, at 29–36. The French revolutionaries immediately 
abolished the ad hoc, patronage-based institutions of the Ancien Regime and replaced them 
with ministries staffed by credentialed employees and defined by subject matter, such as 
Foreign Affairs, War, Interior, Justice, and Finance. See CLIVE H. CHURCH, REVOLUTION 
AND RED TAPE: THE FRENCH MINISTERIAL BUREAUCRACY 1770–1850 (1981). The 
American revolutionaries initially created a government with only limited executive 
authority, but in less than a decade they had enacted a constitution for the express purpose 
of establishing a strong central authority, and then they passed legislation under its 
authority to create the departments of State, Treasury, War, and the Post Office, again 
structured on a modern bureaucratic basis. FERGUS M. BORDEWICH, THE FIRST 
CONGRESS: HOW JAMES MADISON, GEORGE WASHINGTON, AND A GROUP OF 
EXTRAORDINARY MEN INVENTED THE GOVERNMENT (2016). The transition in Britain 
was more gradual, since it occurred without a revolution, but the development of the 
cabinet, with elected ministers who acted collectively as an executive rather than 
separately as servants of the king, was a simultaneous transition to democracy and 
bureaucratic government. See JOHN P. MACINTOSH, THE BRITISH CABINET (3rd ed. 1977). 
In the decades that followed, numerous laws were passed to eliminate offices that drew 
their income from fees, or to replace those fees with salaries, this being an essential feature 
of Weberian bureaucracy. See ERNEST BAKER, THE DEVELOPMENT OF PUBLIC SERVICES 
IN WESTERN EUROPE, 1660-1930, at 34–36 (1966).  
335 Kleinfeld, supra note 39, at 1379. 
336 WEBER, supra note 11, at 973–1002. 
337 The White Paper dodges this issue through the use of the passive voice. It states 
that “[p]olice practices and a police culture consistent with norms of procedural justice, 
fairness, and legitimacy should be fostered.” Kleinfeld et al., supra note 323, at 1699. Who 
will foster them? It goes on to recommend “selecting and training officers to have a 
guardian rather than a warrior mentality.” Id. Who will implement sophisticated training of 
this sort? We are told, “Public defenders and prosecutors should enjoy commensurate 
resources, including equal pay, equal workloads, proportional overall funding, and equal 
conditions of work.” Id. at 1700. “Restorative justice institutions and proceedings should 
be established . . . .” Id. at 1703. “Conditions in prisons and other correctional facilities 
350 OREGON LAW REVIEW [Vol. 100, 261 
is designed poorly, but it is almost invariably the mode by which 
democratic government addresses domestic issues. To deal with the 
problem of traffic safety,338 Congress established the National 
Highway Traffic and Safety Administration (NHTSA);339 to combat 
the health hazards of pollution,340 Richard Nixon created the 
Environmental Protection Agency (EPA) by Executive order;341 after 
the World Trade Center attack, Congress established the Department 
should be, to the extent possible, non-criminogenic; oriented to preparing inmates to 
return to society as full and productive citizens . . . .” Id. The question for all these 
recommendations is: by whom? For examples of the centrality of institutional structures, 
see generally ROBERT K. MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE (1968); 
PARSONS, supra note 69; Kingsley Davis & Wilbert E. Moore, Some Principles of 
Stratification, in SOCIAL CLASS AND STRATIFICATION: CLASSIC STATEMENTS AND 
THEORETICAL DEBATES 93 (Rhonda F. Levine ed., 2nd ed. 2006).  
338 See LEMOV, supra note 13. A decisive event was the publication of RALPH NADER, 
UNSAFE AT ANY SPEED: THE DESIGNED-IN DANGERS OF THE AMERICAN AUTOMOBILE 
(1965).  
339 National Traffic and Motor Vehicle Safety Act of 1966, Pub. L. No. 89-563, 80 
Stat. 718 (codified as amended at 49 U.S.C. §§ 30101–30183). “The Secretary shall carry 
out the provisions of this Act through a National Traffic Safety Agency . . . which he shall 
establish in the Department of Commerce.” Id. § 115. The Act was quickly followed by 
the creation of a new cabinet department, the Department of Transportation, to which 
NHTSA was transferred. See Department of Transportation Act, Pub. L. 89-670, 80 Stat. 
931 (codified as amended at 49 U.S.C. § 102 et seq.). “There is hereby established at the 
seat of government an executive department to be known as the Department of 
Transportation.” Id. § 3. 
340 See ELLEN GRIFFITH SPEARS, RETHINKING THE AMERICAN ENVIRONMENTAL 
MOVEMENT POST-1945 (2020). A decisive event in this case was the publication of 
RACHEL CARSON, SILENT SPRING (1962). 
341 Reorganization Plan No. 3 of 1970, U.S. ENV’T PROT. AGENCY (July 9, 1970), 
https://archive.epa.gov/epa/aboutepa/reorganization-plan-no-3-1970.html [https://perma.cc 
/VL44-JE3E]. As President Nixon stated, pollution control requires  
pulling together into one agency a variety of research, monitoring, standard-
setting and enforcement activities now scattered through several departments and 
agencies. It also requires that the new agency include sufficient support 
elements—in research and in aids to State and local anti-pollution programs, for 
example—to give it the needed strength and potential for carrying out its 
mission. 
Id. After specifying all the federal programs, run by various agencies, that will be 
transferred to the new agency, Nixon goes on to say: 
As no disjointed array of separate programs can, the EPA would be able—in 
concert with the States—to set and enforce standards for air and water quality 
and for individual pollutants. This consolidation of pollution control authorities 
would help assure that we do not create new environmental problems in the 
process of controlling existing ones. Industries seeking to minimize the adverse 
impact of their activities on the environment would be assured of consistent 
standards covering the full range of their waste disposal problems. 
Id. 
2022] Criminal Justice Through Management: From Police, Prosecutors, 351 
Courts, and Prisons to a Modern Administrative Agency
of Homeland Security.342 Because criminal justice is such an old 
issue, we inherited a pre-administrative structure in this one area. The 
lack of attentiveness to the various communities in our nation that the 
Symposium and the White Paper decry is not an inevitable feature of 
administrative government but an unfortunate feature of poorly 
designed administrative government, in this case because of its 
outmoded, fragmentary structure. 
A second objection to establishing a comprehensive administrative 
agency for the criminal justice system is derived from sociological 
functionalism. This is a methodology that adopts an external 
perspective on social action, as opposed to an internal perspective that 
would be offered by the participants themselves, and seeks to 
determine the purpose or function of particular social practices from 
this perspective.343 A number of scholars, applying it to American 
criminal law, conclude that the system is not designed to reduce crime 
or achieve any other of its declared purposes, but rather to exercise 
social control. Creating an administrative agency for criminal justice, 
according to this view, might increase the oppressiveness with which 
such control is exercised.  
There is little doubt that this functionalist approach to American 
criminal law has significant explanatory value. For example, Issa 
Kohler-Hausmann, observing that the number of arrests skyrocketed, 
even as the absolute numbers of convictions plummeted, concludes 
that the purpose of the arrests was to exercise social control by letting 
people know that they were being watched and monitored.344 Each 
arrest constituted a “mark” in a giant sorting and managerial process, 
a form of extralegal social control. Similarly, Nicole Gonzales Van 
Cleeve, observing the treatment of African American defendants, 
witnesses, and victims by white court officials in Chicago, regards the 
criminal courts as a means of intimidating the minority population of 
the city.345 Other accounts of the American criminal process explicitly 
342 Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135 (codified in 
scattered sections of 6 U.S.C.). “There is established a Department of Homeland Security, 
as an executive department of the United States . . . .” Id. § 101. 
343 See sources cited supra note 338. 
344 KOHLER-HAUSMANN, supra note 149. This “unexpected” pattern was compounded 
by intentional confusion. Some defendants would be held in jail for weeks or months only 
to have charges suddenly dropped. Others made repeated treks to court, only to learn that 
the cases had been continued once again, or to find charges inexplicably dropped, or to be 
induced to plead guilty and placed on probation. 
345 GONZALEZ, supra note 329. 
352 OREGON LAW REVIEW [Vol. 100, 261 
present it as system of colonial rule, as their titles indicate: James 
Baldwin’s “A Report from Occupied Territory,”346 Chris Hayes’s A 
Colony in a Nation,347 and Michael Hardt and Antonio Negri’s 
Empire.348 James M. Doyle recounts his experiences as a public 
defender in “‘It’s the Third World Down There’: The Colonialist 
Vocation and American Criminal Justice.”349 For Jonathan Simon, 
parole agents function as “waste managers,” sorting out undesirables 
from a racial and ethnic underclass in order to maintain a modicum of 
order for the balance of the population.350 Michelle Alexander views 
mass incarceration as The New Jim Crow,351 while Nils Christie and 
Ruth Wilson Gilmore depict it as a commercialized version of the 
Soviet gulags.352  
Functionalism can be challenged on methodological grounds, most 
basically by returning to Max Weber, who argued that an external 
approach cannot be fully explanatory for human action; the observer 
must understand (verstehen) social practices from the perspective of 
the participants in order to achieve a full explanation of them.353 As 
generalized, this leads to the view that people’s perceived reality is 
socially constructed,354 perhaps the prevailing view in modern social 
theory. But accepting the methodology of the functionalist studies and 
acknowledging the validity of their conclusions does not undermine 
the value of an administrative agency for the criminal justice system. 
Administrative agencies are of course capable of abusive and 
oppressive behavior, as is every other form of coercive governmental 
power or, for that matter, every other form of coercive power in 
346 James Baldwin & Carrie Mae Weems, A Report from Occupied Territory, NATION 
(Mar. 23, 2015), https://www.thenation.com/article/archive/report-occupied-territory-2/ 
[https://perma.cc/H8KS-G3RF]. 
347 CHRIS HAYES, A COLONY IN A NATION (2017). 
348 MICHAEL HARDT & ANTONIO NEGRI, EMPIRE (2000). 
349 James M. Doyle, “It’s the Third World Down There!”: The Colonialist Vocation 
and American Criminal Justice, 27 HARV. C.R.-C.L. L. REV. 71 (1992). 
350 JONATHAN SIMON, POOR DISCIPLINE: PAROLE AND SOCIAL CONTROL OF THE 
UNDERCLASS, 1890–1990 (1993). 
351 ALEXANDER, supra note 26. 
352 NILS CHRISTIE, CRIME CONTROL AS INDUSTRY: TOWARDS GULAGS, WESTERN 
STYLE? (1993); RUTH WILSON GILMORE, GOLDEN GULAG: PRISONS, SURPLUS, CRISIS, 
AND OPPOSITION IN GLOBALIZING CALIFORNIA (2007). 
353 WEBER, supra note 11, at 2–22. 
354 PETER L. BERGER & THOMAS LUCKMANN, THE SOCIAL CONSTRUCTION OF 
REALITY: A TREATISE IN THE SOCIOLOGY OF KNOWLEDGE (1966); HANS-GEORG 
GADAMER, TRUTH AND METHOD (2nd ed. 1989); HAROLD GARFINKEL, STUDIES IN 
ETHNOMETHODOLOGY (19867); ANTHONY GIDDENS, NEW RULES OF SOCIOLOGICAL 
METHOD (1976). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 353 
Courts, and Prisons to a Modern Administrative Agency
general. But the basic thrust of the administrative approach, as 
delineated above, is to ameliorate this threat by moving from coercive 
to cooperative strategies. The virtues of an administrative agency are 
that it would be oriented toward prevention rather than punishment, 
toward compliance rather than compulsion, and toward interaction 
with other agencies and with members of the community it served. 
Relying on inducement rather than force is not an absolute guarantee 
against oppressive behavior, but it goes a long way in that direction.  
At the macro level, an administrative approach guards against the 
oppressiveness of social control through the feature of our 
government that the previous objection incorrectly claims for itself, 
namely democracy. All administrative agencies must be subject to 
democratic control in our system of government; they must serve the 
voting public, rather than the purposes of their rulers or a dominant 
elite. The egregious abuses that functionalist critics perspicaciously 
observe are not the product of a unified criminal justice agency, 
which is something that we do not have at present. Rather, they are 
the product of a fragmented system, of traditionally structured, 
excessively numerous and ineffectively managed institutions that 
elude democratic control. The best way, perhaps the only way that the 
populace of a democracy can control its criminal justice system is if 
there is a single, highly visible agency responsible for the entire 
system and answerable to the public on the basis of its comprehensive 
responsibility. 
A third, more focused objection to a criminal justice agency is that 
the subject matter of the typical regulatory agency differs from 
criminal law in important ways. Most regulatory agencies deal with 
industries dominated by large or relatively large corporations, which 
enables the agency to enter into individualized negotiations. These 
firms, moreover, are rational actors with bureaucratized internal 
structures that can understand and respond to the instructions issued 
or incentives created by the regulatory agency.355 These differences 
are significant, but they are neither invariable nor determinative. To 
begin with, there are a number of agencies that in fact must deal with 
large numbers of private persons. The Social Security Administration, 
for example, processes millions of disability payments, all to 
individuals, and adjudicates close to a million challenges to its 
355 We are indebted to Robert Kagan for alerting us to this possible objection. 
354 OREGON LAW REVIEW [Vol. 100, 261 
decisions every year.356 The Occupational Safety and Health 
Administration (OSHA) deals with firms, to be sure, but because its 
statute applies to any firm with more than fifty employees, many of 
the firms are quite small, and there are over two million of them 
within OSHA’s jurisdiction.357  
More generally, administration is not a particular technique, but 
an organizational structure that can deploy a wide range of techniques 
in accordance with the demands of the situation. The operational 
features of administration, that is, the basis on which it has become 
our standard approach to collective problems, are expertise, 
coordination and resource mobilization. That is the reason why all 
administrative agencies have credentialed hiring, a defined jurisdiction 
and a hierarchical organization. These features are not specific to any 
particular type of collective problem; rather they allow the agency to 
design its approach according to the issues that the problem presents. 
The issues presented by criminal behavior have been discussed above, 
and a properly designed administrative agency is the best means for 
our society to address them. 
CONCLUSION 
To conclude, we recommend that each American state address the 
issue of criminal justice by establishing an administrative agency that 
unifies the functions of the police, prosecutors, courts, and prisons. 
The existing structure of our criminal justice so-called system is in 
fact an artifact of its premodern origins, and its persistence in this 
modern world of administrative governance results from even older 
attitudes that history has embedded within it—the idea that crime is a 
direct assault on sacred principles and public authority to which the 
government must respond with force. As a result of these attitudes, 
our system consists of at least six different types of institutions, each 
one further fragmented by jurisdictional boundaries into diminutive 
units that cannot train or supervise their staffs, generate useful 
information, assimilate whatever information is available, coordinate 
356 JERRY L. MASHAW, BUREAUCRATIC JUSTICE: MANAGING SOCIAL SECURITY 
DISABILITY CLAIMS (1983) (description and analysis of the mechanisms established by the 
Social Security Administration to deal with nearly one million individual actions per year 
regarding disability payments). 
357 BARDACH & KAGAN, supra note 56 (description and analysis of mechanisms that 
OSHA established to facilitate monitoring over two million workplaces, many quite small, 
that fall under the agency’s jurisdiction). 
2022] Criminal Justice Through Management: From Police, Prosecutors, 355 
Courts, and Prisons to a Modern Administrative Agency
with one another, or reach out effectively to the communities they 
serve.  
We have tried to resolve this glaring problem by means of 
constitutionalism, professionalization, rationalization, and a variety of 
other partial strategies. None of these efforts have worked. They have 
failed in part because they have been half-hearted, if that. But they 
have failed in large because none of them is anchored in an enhanced 
state capacity necessary for success. Attempts to ameliorate this crisis 
will continue to fail unless or until we put these delimited efforts 
behind us and develop and deploy the basic means of modern 
governance, the one that we have used to respond to crises such as 
economic collapse, environmental degradation, and terrorist attacks. 
The current condition of our criminal justice system is a crisis of 
equivalent proportions, one that has oppressed our communities, 
destroyed the lives and livelihoods of tens of millions of our citizens, 
and set us at savage opposition to each other. We need to adopt an 
approach that provides comprehensive planning, coherent resource 
management, coordinated staffing, and effective supervision to all 
components of the system. We need to effectuate the preventive 
purposes that have always been our preferred response to crime, to 
reduce unneeded coercion, and to recognize that the adversarial trial 
we inherited from medieval combat is more suitable for television 
than for the reality in which we find ourselves. Not everyone likes 
idea of administrative governance. For some, it will be bitter 
medicine, while for others it will be welcome relief. However, all 
successful modern democratic states rely on it. It is what we have 
available to us, in a twenty-first-century democracy, and it is time to 
use it in this area that has been mired down in premodern thinking. 
Embracing the idea administrative governance is no guarantee of 
success; but refusing to do so is almost certainly a recipe for continued 
failure.  
356 OREGON LAW REVIEW [Vol. 100, 261