In this post, Malcolm Feeley of Berkeley’s Boalt Law School writes of a particular Realist legacy in criminal law. He focuses on a group at the University of Wisconsin Law School, as well as on a project at the American Bar Foundation done in collaboration with the University of Chicago. These examples of the midwest strain of legal realism pioneered realist methods in teaching as well as in scholarship.
In an earlier draft of this post, I began my emphasizing how original Frank Remington was. And, then I thought about it some more, and concluded that he was not all that original. As an undergraduate and law student, he sang On Wisconsin and embraced the Wisconsin Idea. His great contribution was to march out to the barren field of criminal procedure and put that idea into practice, both within the state and then nationally. He was both an embodiment of the Wisconsin Idea and the Wisconsin tradition of legal realism, if these two ideas can even be separated. His great contribution was to apply this perspective to virgin territory, the criminal process. Remington’s work built on a solid foundation that had been laid well-before before his student years. He launched his project on that foundation.
But there was a proximate cause as well, and like so many of the most important things in life, it appears to have been serendipitous. Following distinguished service in World War II, Frank returned to Wisconsin, took advantage of the GI Bill, and took an accelerated track for his B.A. and LL.B. degrees. Frank graduated from the Law School in January 1949, and immediately was asked to join the faculty that fall. However, with a family to feed, Frank needed something to tide him over for six months. As he did for so many people, Willard Hurst came to rescue. He arranged for Frank to work as a research assistant for Professor John Dawson at the University of Michigan. Dawson’s specialty was contracts, and his current project was on unjust enrichment. He had a hunch and asked Frank track it down; Frank sat in Detroit’s criminal court to see if prosecutors there used the threat of criminal prosecution to force unscrupulous businesspersons to make restitution to their poor victims. Frank found that this was so; prosecutors dropped the charges if they made restitution. This led to an epiphany: non-prosecution can have important social functions. More generally, prosecution and non-prosecution can serve a multitude of functions. For Remington, this was catnip. He was hooked.
He returned to Madison in the fall and started teaching criminal law with this epiphany in mind. Almost immediately the Wisconsin Legislative Council with asked him to undertake a revision of the Wisconsin Criminal Code. Drawing in two classmates who had graduated a year behind him, Margi Melli and Orrin Helstad, they worked tirelessly on this project for a good number of years, first producing a draft code, and then struggling to convince the legislature, lawyers, and judges to embrace it. Their point: systematic codification was far superior to piecemeal court-made changes for developing a workable modern criminal process. After several years of lobbying, Remington, Melli, and Helstad succeeded in getting the legislature to adopt their code, and to commit to continuous oversight and updates.
The project also drew the attention of Herbert Wechsler, who invited Frank to join the Model Penal Code Project through the American Law Institute, by then an important national institution, and one that has its origins in a collaboration between Wall Street and Wisconsin during the Progressive Era. One thing led to another, and in a few years—in 1953 or 1954—Frank became involved in a project that was to preoccupy him for the next sixteen years, studying the exercise of discretion in the criminal justice system—undertaking on a gigantic scale what he had done by himself in the winter of 1949 in Detroit for Professor Dawson. Not surprisingly, this project had many fathers: In a speech to the ABA in 1953, Justice Robert H. Jackson proposed that the ABA undertake a detailed national study of the administration of criminal Justice. Eventually, after a convoluted process, the idea was realized. It would be administered by the newly established American Bar Foundation then, associated with the University of Chicago, directed by Arthur Sherry, a professor of law at UC Berkeley, focus on real world criminal justice administration, and use research methods pioneered in the University of Chicago’s Department of Sociology in the 1930s, 40s and 50s. The Project was weighted down with a glittering array of stars on its advisory committee (four Supreme Court justices or future justices, and well as an all-star cast of other legal luminaries and public officials). All this led to the Project being well funded by the Ford Foundation. From the outset, it also had a substantial staff to oversee and execute the study. Although Sherry was the nominal director of the project, it was Frank based in Madison, who as Director of Field Research had the responsibility for administering the project and producing its work products. He had the good sense to draw in Lloyd Ohlin, a Chicago-trained sociologist, and Herman Goldstein, whose background in public administration, to help design and oversee the diffuse project.
From the outset, the Project was hugely ambitious. It then both grew and shrunk. It was conceived as a national study of all fifty states, which was to be preceded by pilot research in three states. As the number of questions and issues grew, the staff concluded it was more useful to concentrate on in-depth work in the three pilot states rather than to expand nationwide, a choice that in retrospect avoided what surely would have been catastrophe. Eventually this “pilot program’” consumed $1,000,000 of Ford’s money, the equivalent of almost $10,000,000 today! Indeed, it is amazing that it did not topple from overweight at the top, but as the bigwigs turned their attention elsewhere, Frank, as “Director of Field Research” quietly continued to work on the project. Still, it is something of a miracle that it produced published results on the three sites on which it focused.
In many respects, it was a typical Wisconsin project, and was an example of the New Legal Realism before the term had been coined: it was collaborative research on the law-in-action with the aim of suggesting recommendations for improvements in the administration of criminal justice. Remington the lawyer, and Ohlin the social scientist, developed rudimentary protocols for field research, and recruited an army of researchers. After arranging to have them strategically placed with police, prosecutors, judges, and probation and parole officers, Frank and Lloyd gave them pats on the back and bus tickets, and sent them on their ways to their sites in Wisconsin, Michigan, and Kansas. Their mission was to observe practices relating to crime detection, arrest, prosecution, conviction, and sentencing, and parole; write up field notes; and send them back to Madison for analysis.
Frank had found his calling—to investigate the criminal process-in-action. He dug in, and began overseeing the analysis of the excavated products. Although motivated in the same way as his mentor Will Hurst—to understand the law-in-action–his style was radically different. Will had his protégés and admirers, and was a wonderful mentor—and as we saw, this included Frank Remington. However, Hurst was essentially a solo practitioner. In contrast Frank was gregarious and capacious, the captain of a big and boisterous and ever-changing team. He drew in students and colleagues with his infectious enthusiasm. Above all, he knew how to recruit talented young people, give them direction and immense responsibility and plenty of freedom, and then send them out on their own. I do not know how many of them sank, but a lot of them floated, and many soared. Furthermore, Frank was more of a doer than a writer. Over this career, he wrote a great deal, though much of it was coauthored reports to committees. In addition, in this immense project, he published very little if anything. Repeatedly, he appears simply to have handed over vast chunks of the Project for others to pursue and write up, though he could rightfully have claimed senior authorship of all of the five massive reports.
The ABF Project was a reaction to an earlier set of crime surveys produced between about 1920 and 1940. One of those earlier reports still read today from time to time is Felix Frankfurter and Roscoe Pound’s Criminal Justice in Cleveland (1922). However, their work—and the other early crime surveys — relied almost exclusively on published records: how many arrests, how many dismissals, how many guilty pleas, how many trials, and the like. These projects focused on case attrition and types of charging, but never interrogated the discretionary judgments that led to them. So the studies might report: 100 arrests; 50 prosecutions; and only 20 convictions on original charges. The inference to be drawn: police made 50 bad arrests that did not allow prosecutors to prove charges; and in another 30 cases, prosecutors had over charged—what went wrong?
The ABA-ABF-Ford-Wisconsin Project asked decidedly different questions. Its animating concern was to understand the discretionary dynamics of the criminal process: It pursued answers to the journalists’ standard questions: who, what, why, where, when, and how? Who made the important decisions? Why were decisions made as they were? For what reasons? The focus was on discretion. Indeed, the Project might very well have been labeled, Discretion in the Administration of Criminal Justice. Discretion of the police. Discretion of the prosecutor. Discretion of the bail bondsman, discretion of the judge. Discretion of probation officers.
As I suggested earlier, Frank was in his element. He had a mandate—and near unlimited resources– to make sense of his bewildering experience in the Detroit criminal court in the winter of 1949. Frank’s army of field researchers found discretionary decision-making everywhere, and at every stage of the criminal process. Reasons were not always as laudable as they had been in Detroit, but discretion ruled the day. Criminal laws and criminal procedures were not “applied,” so much as they were used– invoked and ignored–selectively in order to effect a host of ends never envisioned by their authors.
In retrospect, the findings reported by the Project seem naïve and undisciplined. Indeed, they are. They were pioneering studies, the first—or near first—observational studies of police, prosecutors, judges, and probation and parole officers—to report on what had long been invisible in plain sight. At the time, they were revelatory, for not only law-in-the books law professors, but social scientists and historians as well. As one test of this: go to the library and pull out law review articles on the criminal process published in the 1940s and 1950s, and contrast them with articles published since the 1970s. Similarly, go to social science journals of the 1940s and 1950s, and then skip to the 1970s and 1980s. There are of course exceptions, notably my late colleague, Caleb Foote’s study of bail administration in Philadelphia and New York City, the jury study project by Harry Kalven and Hans Zeisel at the University of Chicago, and the early empirical studies of criminal justice administration conducted by the Vera Institute. However, by the time these studies appeared in print, the ABF study was well underway. Moreover, it is worth noting that all these other projects were also supported by the Ford Foundation under the same initiative.
Let me return to the administration of the project. Frank had an oddball strategy, based I think on his own affinity for discretion. After receiving marching orders by the advisory board and a blank check from the Ford Foundation, Frank took charge of the Project in his own distinctive way. He hired talented advisors, Lloyd Ohlin and Herman Goldstein. Ohlin give them a crash course in field research, and then armed them a long list of open-ended issues to look for, he and Remington set them loose. Accounts of some of their experiences are reminiscent of accounts of district officers in the Ottoman Empire sending periodic reports back to Istanbul, wondering what ever happened to them. Were they received? Opened? Ever read? Were they useful? In one instance, a frustrated researcher complained to the Ford Foundation Program Officer that the Project’s research strategy was random, and that it was a waste of time and money. The Program Officer gave a typical Ford Foundation response: “Don’t worry, we are investing in people….we are creating a new field.”
For several summers in the late 1950s and early 1960s, field researcher would return to Madison and along with other young scholars and graduate students, who Frank had invited, would take stock of the research to date. They waded through the boxes of field notes that had been filed during the year, identifying themes, coming to tentative conclusions, and tweaking the guidelines for further observation.
It simply cannot be the case, but it does appear to be so, that Frank and his advisory body did not give thought—or much thought—as to who would ultimately write up the reports that were based on this exponentially growing mountain of field notes. Researchers themselves, who assembled their notes and produced insightful analysis, wrote some of the articles. “Free riders”–young law and social science professors and graduate students invited to one or more of the summer institutes–wrote others. Perhaps the two most well-known articles that flowed from the summer institutes were written by people who had among the least to do with the project, one-shot participants who dropped in for one of the summer institutes and returned home with a tenure article in-hand. Joe Goldstein’s “Police Discretion Not to Invoke the Criminal Process: Low-Visibility Decision in the Administration of Justice,” 69 Yale L.J. 543 (1960), and Sanford Kadish’s “Legal Norm and Discretion in the Police and Sentencing Process”, 75 Harv. L. Rev. 904 (1962), tenure articles both, are perhaps the most well-known publications flowing from the project. Ironically, these two articles came to diametrically opposite conclusions. Goldstein was suspicious of discretion and proposed to limit it. Kadish was much less wary of discretion. Such was Frank’s generosity. Numerous other well-known articles developed in this way. (The list is long. See Ohlin and Remington, 1993.)
I don’t know who was who, but after much delay, countless articles and five big books were eventually produced. However, the Project did what the Ford Foundation program officer said he wanted: it created a new type of criminal law and procedure scholar, and sent a great many of them out to revise the understanding the nature of the criminal process. In particular, it created the careers of some of Frank’s students, who no doubt were recruited to Wisconsin’s LL.M. and S.J.D. programs with support from the Project, and were given the opportunity to turn the jumble of field notes into books. Frank’s graduate students were authors of at least three of the five monographs produced by the Project: Robert O. Dawson (Sentencing); Frank W. Miller (Prosecution); and Wayne LaFave (Arrest). I am not sure about the trio of authors, Lawrence Tiffany, Donald M. McIntyre, Jr. and Daniel L. Rotenberg (Detection of Crime: Stopping and Questioning Search and Seizure, Encouragement and Entrapment). The author of the fifth volume was Donald Newman (Conviction: The Determination of Guilt or Innocence without Trial), who at the time Frank drew him into the Project was an Assistant Professor in Wisconsin’s School of Social Work. Certainly, the Project enhanced their careers and the type of empirically based scholarship that defined their work.
Curiously, none of the three most important people on the project ever produced a substantial publication deriving directly from the Project. Neither Frank, nor his two closest research advisors, Lloyd Ohlin and Herman Goldstein (This may be a warning for those of you attracted to big empirical research projects.) Still, their importance was recognized. After a stint as Police Chief O.W. Wilson’s administrative assistant in Chicago, Herman Goldstein returned to Madison to join the law faculty in the mid-1960s. Lloyd Ohlin went on to play an important role in the President’s Crime Commission and receive at appointment at the Harvard Law School. In fact, most of those involved in the Project came to occupy important positions on the President’s Crime Commission, as researchers, advisors, and administrators. And, all of them subsequently produced landmark scholarship, which derived from their experience with the project. I will return to discuss the impact of the Project on the work of the Crime Commissions in a moment.
The ABF Survey of Criminal Justice Administration accomplished what the Ford Foundation most wanted, a transformation of the field of the study of criminal justice administration, and following that, a more informed form of administration of the criminal justice system. The Project’s influences were numerous and diverse. Indeed, it would be impossible even to begin to try to catalog the all. However, several of its most important effects are readily apparent and I discuss them briefly below.
Most obviously, the ABF Survey—a research project—produced a library of research that illuminated the customs and manners of the police, prosecutors, defense, attorneys, judges, bail bondsmen, and the rest of the large cast of characters that shape the administration of the criminal process. It took some time for some of these results to be produced, but eventually five huge monographs saw the light of day. They set the standard for empirical research on the administration of criminal justice at the time, and this work led to a flood of even more sophisticated empirical research in the 1960s and onward.
In addition, the Project:
– led to the establishment of the School of Criminal Justice Administration at SUNY Albany, a school founded with the explicit mission to study the actual administration of criminal justice. Remington, Ohlin, Goldstein, and Newman all played important roles in the shaping of the mission and plans for the School, and in fact were asked en mass to become its founding faculty. Only Donald Newman accepted the offer, and eventually became its dean.
-through the connection with Arthur Sherry, the Project had an influence on reshaping the curriculum at the School of Criminology at Berkeley, and perhaps in the recruitment of Caleb Foote from the University of Pennsylvania.
-challenged Sociology, Criminology, and even Political Science departments to expand their focus beyond the etiology of crime and official statistics reported by agencies to the empirical study of the administration of the complexity of the criminal process. (I was one of those indirectly affected and drawn into the field.)
-changed the nature of teaching criminal law and especially criminal procedure, by promoting “revolutionary” materials and case books, which forced the issue of “discretion” to be considered in all areas of the criminal process (including, the publication of Remington and Melli’s own materials and cases book still used at Wisconsin). While some of us are disappointed that the Project and later the findings reported by the President’s Crime Commission did not have a greater impact on the way criminal law and procedure are taught in law schools, there is no question that vast differences took place between the 1950s and the 1970s. And, it has made a substantial and permanent difference in criminal law and procedure course offerings at the University of Wisconsin.
-encouraged the Ford Foundation to invest still more funds in “developing people” who could take a more realistic approach to the understanding of the administration of criminal justice, and who could make the process more transparent. Among them:
-even as the various pieces of the ABF Project were being assembled, with an eye towards support from the Ford Foundation (and perhaps in part because Ford had signaled its interest in funding such a project), the Foundation was supporting other empirical studies of the administration of criminal justice.
-Caleb Foote’s pioneering studies of the administration of bail in Philadelphia and the allied project in New York City were supported by grants from the Ford Foundation.
-The Chicago Jury study project, the single most expensive empirical study of the administration of justice (here the study of civil and criminal juries as compared to bench trials), at the University of Chicago, under the direction of Harry Kalven and Hans Zeisel.
-the establishment of the Vera Foundation (later Institute) in New York City, which began promoting bail reform and then pretrial diversion and has since launched a host of other innovations in New York City, across the United States, and even abroad. It has become the R&D unit of a criminal justice system with complex functions and management, but one, which has no R&D capacity of its own. (Incidentally, the founder of Vera, Herbert Sturz, was a graduate in Social Work from the University of Wisconsin at Madison. He clearly learned the Wisconsin Idea, and took it with him back to New York. He is one of my heroes, and for years when I was at the University in Madison, I unsuccessfully pressed him to be awarded an honorary doctoral degree.)
-the establishment of the Police Foundation in Washington DC, which decades later still continues to provide a form for empirically ground discussion of police practices, and support field research to test new police practices. (The Foundation regularly encourages and works with both researchers’ and police departments to conduct randomized field experiments testing the efficacy of alternative policing practices and intervention programs.)
-More recently, the establishment of the Center for Court Innovation, also initially supported by the Ford Foundation, which has pioneered in the development of problem-solving courts, an approach directly traceable to the work of the ABF Survey and the work of its Associate Research Director, Herman Goldstein and his pioneering book, Problem-Oriented Policing.
One contribution bears extended discussion, the Project’s impact in shaping the agenda of the President’s Commission on Crime and Law Enforcement, which was created by President Lyndon Johnson in 1965, and supplying the Commission with many of its advisors, key personnel, and research staff. When one looks though the list of those who played major roles on that Commission and its various task forces, the names of those involved in Wisconsin-ABF project are all over the place. (The Project also was influential in the establishment of two related enterprises, the ABA’s Minimum Standards of Justice Project, and Department of Justice’s Standards and Goals Project. One only has to look at their missions, their structures, and the names involved in these various enterprises to see the handprints of the ABF’s Survey all over them.)
Unfortunately, the importance of the publications of the ABF Survey has been obscured by the work of the President’s Crime Commission and developments that flowed from it: The Report of the President’s Crime Commission; the Commission’s various Task Force Reports; the establishment of the Law Enforcement Assistance Administration, and the founding of the National Institute of Justice. The slow-paced publications of the ABF reports were overtaken by the mass of materials produced by the Crime Commission, so the invaluable contribution of the former in shaping the latter is not so obvious. However, even a casual reading of the ABF reports, an appreciation for the approach pioneered by Remington and his colleagues, and the people involved in both enterprises to appreciate just how important the ABF project was in shaping the agenda of the Crime Commission. However, much of this has been lost in the chronology of the Crime Commission.
There is still another reason for the eclipse of the ABF Project by the President’s Crime Commission. The Project emphasized that criminal justice posed an immense administrative and management challenge for officials, and set about understanding the nature of the administrative mess, and offered reflection on how it might be better managed. Many of the most innovative features of the Crime Commission drew on this core insight and tried to point the way for still better understanding and management. Unfortunately, however, the Commission, and especially its influential Task for Report on Science and
Technology, created a new nomenclature. To emphasize the need for clarity and management, Remington and the ABF named the Project, “the ABF’s Survey of the Administration of Justice,” perhaps unwittingly echoing the management and administrative concerns of the Wisconsin Progressives, and the problem-solving approaches to management highlighted in the work of Chester Bernard, Philip Selznick, and John Dewey. However, by the time, the President’s Crime Commission was up and running, systems analysis was all the rage. In addition, owing to the interests of the Director of the Task Force on Science and Technology, Al Blumstein, an operations research expert on loan to the Commission from the Institute of Defense Analysis, the term criminal justice system came to replace the term, administration of criminal justice (See Mayeux, 2018). These changes both obscured the connection to the ABF Project, and subtly shifted emphasis away from the focus on discretion, administration, and management in favor of a holistic rational systems approach.
Most readers have no doubt seen the famous funnel of justice that came to symbolize the Commission’s concern with the criminal justice system a whole. There is no question that this picture was was—and is–useful. But, the operations research feature that drove the emphasis on systems analysis seemed to suggest the idea of a single synoptic perspective—the rational systems engineer—who could tweak the various conduits into and out of the funnel so that it could operate at optimal efficiency. The term “system” came to suggest something of a rational order whose different parts were or should work in harmony, harnessed together to work towards the same objective. At least, this certainly has been both the view maintained by the coiners of the term, and as well the term’s critics. Systems advocates maintain the quest for the well-oiled machine, whose parts pull together. Critics maintain that this is both false in theory and false in fact. They maintain that the theory of adversarial process, which animates the criminal process, institutionalizes conflict, embraces conflicting values, amplifies differences of opinion, and indeed fosters antagonism and inefficiency at the very heart of the process—all the time enabling vast discretionary judgment throughout the entire process. In addition, as the work of the ABF Project makes so abundantly clear, so many other—noncriminal–objectives are bootlegged or superimposed on the criminal process that is nonsense to conceive of it, even in ideal theory, as a well-oiled machine devoted exclusively to processing criminal charges.
In retrospect, it is unfortunate that the ABF’s nomenclature was displaced. The ABF Survey emphasized the need for the administration and management of highly discretionary decisions of low visibility made by line-staff. Even though the terms are allied, systems analysis conjures up a different set of challenges. Still, the ABF studies set in motion a revolution in the way we think about coping with the challenges of crime and its administration.
I should stop here, but want to go on to make three additional points:
First, I was warned not to say anything about the criminal law clinical programs at Wisconsin, but I cannot help myself. I must make one brief comment. My clinical colleagues and their students at Berkeley and elsewhere are always dreaming up ways to the criminal justice authorities or probation officers for constitutional shortcomings. In Wisconsin, clinical faculty and students work in the offices with these officials, take an “administrative” approach, and ask, “How can we do things better?” The Wisconsin approach wins easily in my view. Just one illustration is the fact that two of Wisconsin Law’s clinical faculty have served as commissioners of corrections in this state. This is just one of the many examples of the genius of Frank Remington’s administration of justice approach.
Second, apart from his own wonderful contributions, one of Frank’s great contributions not only to Wisconsin, but also to the improvement of criminal justice worldwide was the foresight and wisdom to recruit Herman Goldstein for the Project and later onto the Wisconsin faculty. Herman is an influence without peer in the world of the police, not only in the United States, the UK, and Australia, but also throughout the world. When Herman’s book, Problem-Oriented Policing, was reviewed by Lawrence Sherman, now the Director of the Institute of Criminology at University of Cambridge and himself a distinguished authority on the police, he wrote that it was the second best book on the police ever written, the first being Patrick Colquhoun 1796 book, A Treatise on the Police of the Metropolis. High praise indeed, except I think Larry got the order reversed. In Japan, the state designates a tiny handful of artists and scholars as “National Living Treasures.” If Wisconsin had this practice, surely Herman would have been designated a Living Treasure. In addition, you have had him among you for fifty years! All thanks to Frank Remington’s foresight.
Finally, I want to say something about Remington’s work, American Legal Realism, Wisconsin’s New Legal Realism, and John Dewey’s pragmatism. Frank represents all three traditions. I’ll briefly touch on the first two because they are so easily recognizable to this audience, but then elaborate a bit on the third point that ties Remington to pragmatism.
Legal realism emphasized the indeterminacy of legal rules. Legal realists were rule skeptics: abstract rules cannot decide concrete cases. Now, and probably in the heyday of the Formalists, no one seriously denies that discretionary judgement is inevitably employed as a supplement when applying legal rules in all but the most cut and dry legal decisions. By now, we are all legal realists. Frank Remington certainly would have subscribed to this view. A minor but important tradition in legal realism emphasized fact skepticism. Legal decisions are indeterminate because facts are ambiguous. Here too Frank would agree.
The New Legal Realism emphasizes law in context, and the value in shaping and sharpening discretion through informed empirical understanding of the law in action. To this end, it emphasizes collaborative research by social scientists and legal scholars in order to facilitate both the formulation of informed questions and in providing answers to them. One might say that Frank’s entire career was testimony to these core principles of the New Legal Realism.
However, there is still one other feature of Frank’s and Herman’s work and perhaps the work of New Legal Realism that to my knowledge has not been explored in any depth. Frank Remington’s—and I should emphasize, Herman Goldstein’s—perspective entails much more than supplementing the interpretation of legal rules with informed judgment. While their work certainly was informed by empirical research and legal realism, old and new, their approach was much more. They approach legal rules and legally relevant facts from a pragmatist’s perspective. Law is not so much a system of rules to be interpreted, applied, and enforced (even as it is filtered through the indeterminacy of rules and facts). Rather, laws create offices, establish aims, and create arenas for solving concrete problems. The point to aims and set constraints, and empower officials to invoke or not invoke the law in the process of addressing problems that are likely only to be roughly identified by legal definitions of offences. That is, the law establishes an arena in which problems are to be addressed. In this view, discretion is much more than an informed judgment or a psychological predisposition that is a necessary component for interpreting and applying rules. The law is an instrument—a resource–to be invoked or not invoked when addressing and trying to cope with a concrete problems. What may be most important about the law is that it authorizes some people to exercise their discretion to invoke or not invoke a law in the process of solving concrete problems. This is something quite different from “applying” or “interpreting” a legal rule. It is administration in light of the aims of a regulatory regime.
In Frank’s experience of the winter of 1949, he saw the prosecutor reaching out to invoke the threat of a criminal prosecution in what was ostensibly a civil matter in order to solve a problem: to render justice to those who had been defrauded. In Herman’s pioneering work on the police, time and time again he watched the police “fail” to make an arrest because their intervention—just their presence–had already gone a long way to solved the problem at hand, or make an arrest not so much in anticipation of a charge and a conviction, but to diffuse an explosive situation. Alternatively, he watched them make arrests in questionable cases because their sense of justice led them to press for criminal sanctions. Although certainly discretionary and shaped by variable motives and senses of justice, these decisions are not so much a product of flexible interpretation due to ambiguous rules or uncertain facts as they are at effort at rendering situational justice. They reflect the realization that human experience is vastly more complicated than any set of rules laid down to try to govern it. John Dewey and the Pragmatist tradition recognizes this, and so understands law as a “tool” to be invoked or not invoked with discretion, not with the aim of interpreting and enforcing the law, but for the purpose of problem solving.
This perspective is writ clear in the Vera Institute’s monograph, Felony Arrests, which I think is the single best account of the administration of criminal courts ever written. That study finds that roughly fifty percent of all felony arrests are dropped by a prosecutor or dismissed by a judge. This is not because the police made bad arrests or prosecutors or judges were lazy or careless. It was in large because about half of all arrests involve people who know each other–family members, friends, neighbors, co-workers, and the like. In such cases, police officers, prosecutors, defense attorneys, probation officers, judges—everyone—usually agrees that while all the elements of a crime are present, it is only a felony in a “technical” sense. It makes more sense to regard the incident as an interpersonal conflict that went too far. This means that unless there were severe injuries or damages, it makes little sense to press for conviction. Arrest was a reasonable situational response. It diffused the problem by separating the principals. After that, little is gained by pursuing criminal cases. At best, it is a social problem, not a crime, and best dealt within the family or neighborhood or by a social worker. What Remington and Goldstein found in their extensive first-hand experience with prosecutors and police is that this situation is not the exception but may be the rule. It is at the center of the administration of criminal justice, not the periphery. Their effort was to bring it to the fore, understand it, and help officials learn to solve problems they confront more effectively.
In this view, discretion and the exercise of discretion—and an administrative sensibility–is at the heart of an effective criminal justice system, which might best be understood as a poorly designed regulatory regime. It cannot be avoided, and rather than trying to banish it or reduce it to a bare minimum, they—like organizational theorists and students of administrative behavior—Remington and Goldstein wanted to teach officials how to employ their discretion to best advantage. Of course, they would acknowledge, discretion can be and is used in hateful and destructive ways. Indeed, study after study of police and racial minorities reveal this on a daily basis. So to do studies of charging and sentencing. However, their response to these problems, following Dewey, is not to try to eradicate discretion (a fruitless task to begin with), but to devise administrative structures that provide meaningful oversight, and modes of recruitment and training that minimize the discrimination impulse to begin with. Of course, this is more easily said than done. But sixty years of trying to banish racial discrimination through efforts to restrict discretion have proven to be abject failures. Problem-oriented policing needs to be expanded to include problem-oriented prosecution and problem-oriented judging and sentencing as well. Since the ABF Survey, this approach has continued slowly to gain adherents, but such an approach is still in its infancy.
Conclusion — The genius of Frank Remington was to conceive of the criminal process as an administrative process, and to try to design an administrative process suitable to the task at hand. To date the most fully realized model of this is Herman Goldstein’s model of problem-oriented policing. But, the task is to expand this to all aspects of the criminal process, and most particularly the courts.
Not surprising that this pioneering perspective emerged in Wisconsin. Wisconsin had the tradition of the Wisconsin idea. It was the home of the Progressive movement. Wisconsin faculty helped shape and establish the ALI. And, Wisconsin was among the first—perhaps the first—to embrace the modern administrative state. Frank Remington was a native son (who refused to leave the state when plied with attractive offers elsewhere) who imbibed this rich legacy and had the foresight to recruit Herman Goldstein to join him in the enterprise. The results included the ABF Survey, a pioneering approach to teaching criminal justice administration, and on-going collaboration with state and local criminal justice officials. All of these were long-established hallmarks of the New Legal Realism before the term was even coined.
Resources used in preparing this presentation
Recollections on many discussions with Frank Remington and Herman Goldstein during my time in Madison, 1977-1984.
Occasional discussions with Erica Eisinger at various locations.
William Clune, Legal Realist Innovation in the Wisconsin Law School Curriculum 1950-1970: Four Influential Introductory Courses,”prepared for the Program, “Law in Action in Wisconsin Law School Courses: 1950-1970, School of Law. University of Wisconsin, March 8, 2019.
Malcolm M. Feeley, How to Think about Court Reform, BU Law Rev 98 (2018) 673.
Herman Goldstein, “Improving Policing: A Problem-Oriented Approach, “Crime and Delinquency 25 (109). 236-258
Herman Goldstein, Problem-Oriented Policing (Philadelphia: Temple University Press, 1990).
Edward L. Kimball, Frank Remington: Contributions to Criminal Justice (Wisconsin Law School, 1994).
Sara Mayeux, “The Idea of ‘the Criminal Justice System,’” 45 American Journal of Criminal Law 55 (2018).
Lloyd Ohlin and Frank J. Remington, eds. Discretion in Criminal Justice: The Tension between Individualization and Uniformity (SUNY Press, 1993).
Samuel J. Walker, Origins of the Contemporary Criminal Justice Paradigm: The American Bar Foundation Survey, 1953-1969, Justice Quarterly 9(1992)47
Vera Institute of Justice, Felony Arrests (Longman, 1977).
Various publications produced from the ABF Survey.
*prepared for the Program, “Law in Action in Wisconsin Law School Courses: 1950-1970, School of Law. University of Wisconsin, March 8, 2019