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Sara Mayeux, The Idea of 'The Criminal Justice System', Am. J. Crim. L. (forthcoming 2018), available at SSRN.

Do you want to reform the criminal justice system? Maybe with new evidence-based practices? Or maybe you doubt the word ‘justice’ is appropriate and you would like to shrink the criminal system more generally? Good luck, because, to paraphrase an old anarchist poster from London that used to hang on my wall in high school, “whoever you voted for, the system got in.” In short, almost all of us return repetitively to the idea, the metaphor really, that the criminal process is or at least can aspire to be a system. It may be time, in the aftermath of mass incarceration, to not only reform, and shrink American crime control institutions (or the carceral state if you prefer), but to (use a horrible malapropism, forgive me George Orwell) de-systematize it.

Mayeux’s enlightening essay provides us a genealogy of the rise of system thinking over criminal justice thinking. The idea that all things natural and artificial can usefully be thought of as systems (and creation a complete system) goes back to the Enlightenment at least. Modern sociology, in its mid-century rise to national prominence, promoted the idea of a social system, inside of which functioned numerous sub-systems. After the war systems theory took off in the operations research wing of engineering where, spurred by the tremendous numbers of bombs dropped and planes built and destroyed during World War II (Mayeux skips these details), the idea of breaking down processes into their essential elements and studying their flow and interaction took hold. This thinking seeded in business schools in the 1950s and came back to government with Robert MacNamara in the 1960s.

Mayeux’s account rightly centers on the important 1967 report of the President’s Commission on Law Enforcement and the Administration of Justice, titled The Challenge of Crime in a Free Society. The report helped lay the groundwork for a massive build up in policing and other parts of local administration of justice, which later helped provide the material for mass incarceration. At the same time, it brought together a generation of young criminal justice researchers eager to show that social science and progressive reforms of law enforcement could take a dent out of the growing crime political problem of urban crime. Among these none were more committed to neutral scientific approaches then Alfred Blumstein, the distinguished former Dean of Carnegie Mellon’s school of public policy and the winner of criminology’s equivalent of the Nobel prize in 2007 (the Stockholm prize).

It was Blumstein, trained in operations research not traditional sociology or criminology, who fashioned the illustrative flow charts of different parts of the criminal process that ran through the report and came together in the complex funnel of crime that Mayeux correctly spots as the paradigm-shifting contribution of that report (one entire unintended by its authors, including Blumstein). That funnel showed a wide band of criminal arrests entering the pipe of criminal processing, itself only a part of the “dark figure” of unreported and undiscovered crime, and then many of those arrests flowing out through various steps in the system including bail, pretrial motions, and acquittal. Only a portion of the whole entered prison or probation. At a time of perceived rising crime (and as Elizabeth Hinton suggests in her book, From the War on Poverty to the War on Crime, the new efforts to bolster the flow of information in the “system” may have created more reported crime), the imperative of closing those leaks (otherwise known as constitutional rights) seemed self-evident and imperative. One of the most important audiences for this funnel chart and the system model behind it, according to Mayeux, was the federal judiciary, who increasingly felt the burden of deciding Fourth, Fifth, and Sixth Amendment decisions that might widen the leaks if defendants were vindicated.

One of the implicit assumptions behind systems theory in criminal justice was the idea of “homeostasis”, that systems seek and maintain equilibrium. Recognition of the out-of-control growth of the carceral state in the US has, in Mayeux’s view, intellectually undercut this approach. Perhaps. Supporters of systems thinking might conclude however that instead we have reached a new equilibrium and that the rapid growth of imprisonment in the 1980s and 1990s has been followed by relative stability today with little sign of a return to the previous level or of further growth (Blumstein’s 1973 paper with Jacqueline Cohen vindicated at last!).

Mayeux is on stronger ground, however, in suggesting that the features of systems thinking which have enabled quantification and rationalization are the dropping out of local geographic and historical context and contingency. While systems thinking isn’t blind to change, it ignores the institutional legacies of the past on the inputs and outputs of the present. More importantly, in its commitment to value neutrality, systems thinking has allowed a narrow commitment to public safety through incarceration to come to the fore.

There is, as Mayeux recognizes, a close relationship between the rise of the criminal justice system, and the influence of the federal government in local criminal justice. The federal government has been the great promoter of the system as the cure for criminal justice ailments (usually perceived through federal initiatives like the wars on alcohol and drugs). One of the reasons that liberals, including those on the staff of the President’s Commission, embraced systems thinking was the promise to break up parochial and racist local values and knowledge. The problem was that the rapid shift toward arrests and incarceration required that parochial and racist local knowledge be repackaged as aggressive crime control. Yet today, unlike in the 1960s, local urban politics looks like a productive place to rethink the purposes and values of criminal justice. Perhaps less system goes along with less federal direction, although a more robust enforcement of constitutional rights might be quite consistent with, indeed essential for, that local politics to take shape.

However you name it, Mayeux’s essay is an essential read for criminal justice scholars and reformers. As she notes it is the non-social scientist, the casual user of the system metaphor who is most likely to allow its presumptions to penetrate into their imagination of the present and the future. Rather than promote further the idea of the system, we can see it as a historical project with some material success in reshaping criminal justice institutions. We can then open our research to the way criminal justice institutions interact with other organizations and interests beyond “the system.”

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Cite as: Jonathan Simon, Time to Re-think the Idea of System, JOTWELL (January 29, 2018) (reviewing Sara Mayeux, The Idea of 'The Criminal Justice System', Am. J. Crim. L. (forthcoming 2018), available at SSRN),