The Transformation of Criminal Due Process in the Administrative State: The Targeted Urban Crime Narcotics Task Force

ABSTRACT

This study examines the institutions that administer the criminal sanction and their procedures in the process of adapting to an expanding administrative state. Criminal courts both provided a model for due process rights in the administrative state and are being transformed by them.

The administrative due process revolution grew out of the criminal due process revolution, but developed its own discourse and methodology. Subsequently, administrative due process was introduced into the criminal process, in part as a check on the further expansion of criminal due process. Administrative due process was extended to parole and probation revocation, and to prison disciplinary procedures. The methodology of administrative search decisions was adapted in stop and frisk cases. Then, searches that would have been protected by the probable cause warrant requirement were subsumed under the lower standards of administrative searches. This paradoxical effect of the extension of due process rights to administrative searches on criminal searches is paralleled by the use of probation revocation as a substitute for criminal prosecution.

The study continues by examining a state-funded War on Drugs program that introduced innovations relying generally on an administrative view of the criminal justice system and specifically on administrative due process procedures, involving interagency cooperation and coordination.

The District Attorney’s Office used probation revocation as a prosecutorial device, bypassing the criminal process, and leading to swift and certain punishment. Paradoxically, the extension of due process to probation revocation legitimated its use as a substitute for criminal prosecution, imposing the criminal sanction without invoking the criminal process. Legal developments in California sanctioned the technique. Probation revocation has become the normal procedure for probationers arrested in that county, and comparable programs are developing elsewhere.

Intensive probation promoted an administrative law enforcement role for probation officers, including increased use of the probation search in cooperation with police. By increasing probationers’ reporting and drug testing requirements, intensive probation also increased the likelihood of revocations on technical grounds.

While there have always been techniques for avoiding the formal criminal process, the changes examined differ from earlier circumventions. They are legimitated under the legality of the administrative state. They may represent the new criminal process of the administrative state. Socio-legal theorists addressing legal relations in the administrative state should consider the changing criminal process.

ACKNOWLEDGMENTS

Being uncomfortable expressing my gratitude in person, I welcome this opportunity to say it in print. Thanks:

To my brothers, Edward L. Greenspan and Brian H. Greenspan. I like to think that you supported me so graciously these many years because you believed that what I was doing was important. But I know you would have done it anyway. I am deeply grateful to both of you, both for your unquestioning support and for understanding and caring about my work.

To my wonderful friends and colleagues, Tina Stevens and Jennifer Hammett. To Tina, for your friendship, for helping me recognize the significance of what I was finding in Oakland, for helping me clarify the relationship between criminal and administrative due process, and for returning my focus to the moral issues. To Jennifer, for our walks and talks, for our dissertation support lunches, for intelligent readings of every draft, and for wanting me to improve them, even when I was difficult to deal with. To Marti Kheel, for your example of hard work and dedication, and for never running out of helpful suggestions to get me through the hard times. To Suzy Greenspan, for your constructive remarks on the original paper, and for Scrabble, Phoenix, the Dordogne, and the telephone.

To David Jung, for leading me to the administrative search and for many quiet kindnesses. To Steve Shmanske, for lessons in statistics and for your camaraderie. To Howard Bogomolny, who came back at just the right time. To Jennie and Abe Bogomolny, who wouldn’t come to California until I finished! To Julianna and Samantha Greenspan, who enrich my life in so many ways. To Emma Greenspan, my mother, who has helped in every way. And to Marla Berger, and Jared and Jenna Greenspan, whom I hope to lean on in all these ways in the years (and works) to come!

But the hardest task, performed unstintingly by my family and my friends, that I most want to thank you for, was sustaining my belief that you believed in my project and my ability to do it. I know how hard I tried to persuade you otherwise. Perhaps I could have completed this dissertation without your loving support. I don’t see how.

To Professor Sheldon L. Messinger, chair of my dissertation committee. For your wisdom, deep commitment, and integrity. For being a model of an academic I could admire. It has been a great privilege to work with you.

To Professor Malcolm M. Feeley, dissertation committee. For your support and useful criticism along the way. For the challenge of sometimes differing perspectives on mutual intellectual interests. Thank you also for involving me in and working with me on this project originally.

To Professor Troy Duster, dissertation committee, for your helpful comments and especially your kind words.

To Professor Jerome H. Skolnick, who also brought me to and worked with me on the original project.

To many people throughout the criminal justice community of Alameda County, every one of whom was generous and accommodating. Perhaps I do you no favor by confirming Alameda County’s reputation as a great place for doing criminal justice research! I especially want to single out:

Deputy District Attorney Kenneth Kingsbury, for generously sharing your time and expertise, and for your openness and honesty, even though you knew you were dealing with a Berkeley type.

Charles Holston, Supervisor of Adult Supervision in the Alameda County Probation Department, who could not have been more cooperative and helpful, and pleasant to talk with.

I also want to express my admiration for many unnamed probation officers whose commitment to their work, especially during this difficult period of transition in the profession, was an inspiration.

And to the National Institute for Justice, for its support: Dissertation Fellowship Grant #88-IJ-CX-0008.

ROSANN GREENSPAN

Berkeley, California

May, 1991

Foreword • 2014

It is about time that this thesis was published. It is a brilliant analysis of the criminal process, more relevant today than when it was completed in 1991. After the thesis appeared, Greenspan published one important article that set out the core of the argument, and it caused considerable comment. But the full force and power of her argument, and the rich empirical study that supports her analysis, has never been presented until now. One hopes that this publication will call attention to the important argument the author develops, and that it will provide a framework for future work that examines the theoretical underpinnings of the evolving criminal system.

Troubled by the speedy arrest to perfunctory revocation process by which probationers were being arrested for new offenses and serving significant prison terms without traditional criminal due process protections, Greenspan set out to trace the converging histories of the due process revolutions in criminal and administrative justice. She found that just as criminal due process rights were being extended back to the police interrogation room and earlier, and forward beyond trial to sentencing and appeals, the administrative due process revolution intervened. This study traces the rise of administrative due process, showing how Charles Reich and later the U.S. Supreme Court embraced the idea of criminal due process to first illuminate problems in the administrative process, and then reshape our understanding of it. The lesson is as simple as it is powerful. If the state can arbitrarily deny you welfare, unemployment compensation, social security benefits, a college degree, or remove you from school or exclude you from public housing without showing cause, then it is exercising powers far in excess of the powers it employs in the vast majority of criminal cases. Civil losses, it was argued, can be far greater than a criminal conviction, a period of probation, or a spell in jail. Accordingly, just as the state’s exercise of its criminal powers are circumscribed by due process procedures, so too should the exercise of its administrative powers. This new property—government authorized or sponsored benefits of various sorts—must be understood as rightfully owned property, protected in the manner of the old property by due process of law. Greenspan shows that criminal due process was the compelling analogy for the development of administrative due process to protect these new types of rights.

So far so good. But then Greenspan reveals that the tables were turned almost as soon as the ink had dried on pronouncements of the new administrative due process. In short order, administrative due process provided the theoretical basis for new developments in the criminal process. In her thesis, Greenspan reveals how—and where—administrative due process stunted developments in criminal due process, and in fact provided the justification to turn back the clock.

What she recognized and sketched out so convincingly in 1991 has become, less than twenty-five years later, abundantly clear. Once the "administration of criminal justice was a convenient shorthand, a figure of speech, like the criminal justice system." Today, owing to the developments Greenspan specifies, the administration of justice is a concrete legal reality, not a convenient figure of speech. The criminal process is now administered, at the expense of adversarial proceedings and in the absence of meaningful due process protections at many key junctures. This does not mean that there are no due process rights. There are; only they are of a lesser standard—more likely than not, rather than beyond a reasonable doubt. It is the triumph of the administrative model. Her thesis shows how this occurred.

The backlash to the Warren Court’s criminal due process revolutions was not a wholesale abandonment of rights, but an embrace of a lower standard of due process, administrative due process. In turn even this reduced regime of protection was eroded still further by policy alternatives that facilitate wholesale avoidance of even these protections so that, in a very real sense, the criminal process is losing its distinctiveness and is being transformed into a branch of public administration. To take one example that Greenspan examines in depth in her study: in the 1980s, a substantial majority of all those sent to prison in California as well as some other states got there not by means of a criminal conviction and sentence, but because their probation or parole was revoked. So what?, one might ask. Greenspan’s response is that when the constitutionality of the ease with which officials could revoke parole or probation was litigated, the Supreme Court resolved the matter in favor of administrative and not criminal due process, allowing for lower standards of proof at revocation hearings. This means that people can be stopped and searched in the absence of probable cause or a warrant, brought before the court without benefit of counsel, and sent to jail or prison without a right to a jury trial, and with an adjudication standard resting upon the preponderance of the evidence standard, that is, more probable than not rather than beyond a reasonable doubt. Indeed, even these skimpy rights available to the accused in a revocation hearing are almost always truncated because the accused is put in the position of having to waive these administrative rights in exchange for a guarantee that new criminal charges will not be leveled. In this situation a person can be taken from the squad car to the cell block with only a brief rest stop at the court house. The judge only has to be notified that the accused is waiving her right to a revocation hearing before being taken back to jail. The new administrative due process in the criminal arena, while not necessarily the cause of this development, nevertheless provides a rationale that legitimates this truncated form of justice.

Since completion of her study, the administrative revolution in the criminal justice system, whose origins Greenspan has traced, has made great strides forward. Increasingly, we read articles, books, and theoretical treatises embracing the idea of restorative justice and responsive regulation, problem solving courts, and actuarial justice, all branches from the same trunk with its roots in administrative thinking. Asset forfeiture and other civil actions have become everyday tools of law enforcement. Increasingly statutory presumptions have taken the place of proof, and undermined the jury’s authority and the requirement that each element of an offense be proven beyond reasonable doubt. Presumption of guilt and the idea that the jury trial is an auxiliary feature of the criminal process are now operating assumptions of the criminal process.

Like administrative agencies, courts are now conceived of as policy units charged with managing danger. Maybe, just maybe, some of this makes sense—though Greenspan would not likely agree—but what clearly makes no sense at all is that this radical transformation of the criminal process has taken place with next to no discussion by judges, lawyers, legal academics, or even seemingly astute social science observers of the criminal process.

Greenspan’s study is brilliant precisely because it problematizes these developments. It identifies the central issue: how thinking about the criminal process has been so fundamentally yet unwittingly transformed. Although she was the first to recognize it, it is not because she has dug so deeply and found inconvenient truths that have been hidden in the back rooms of police stations, the chaos of the criminal courts, the low visibility of decision-making in the prosecutor’s office, or the windowless cells in our nation’s prisons. Hers is not an investigation of the hidden—although at the time of her study the power of probation revocation was only just being recognized by police and prosecutors—but a recognition of the significance of the nakedly visible. She has identified and reflected on what has been hiding in plain sight, in prominent decisions of the U.S. Supreme Court and in the very visible and recurring practices of police, prosecutors, defense attorneys, and judges all across the country. It is no secret. Yet it has been ignored. The transformation she depicts has taken place without discussion, without analysis, indeed without acknowledgement. This is perhaps the most frightening feature of this thesis, and a finding that has only broadened and deepened since it was first put forth in 1991. I hope that this long overdue publication will stimulate a new generation of scholars as it continues to stimulate my own work.

MALCOLM M. FEELEY

Claire Sanders Clements Dean’s Professor

School of Law

University of California, Berkeley

January, 2014

Preface • 2014

I think it was my first day in the field that the police liaison to the district attorney’s probation revocation program exclaimed, Forget rights! Forget right to jury! Forget right to bail! There are no rights! As Malcolm Feeley says in his Foreword, what I discovered over the course of researching and writing this dissertation was in plain view from the beginning. The criminal process has largely been subsumed as an administrative process and the procedural rights enshrined in the Bill of Rights have long since faded away. What I hope my work explains is how this happened doctrinally—how the expansion of criminal due process was halted and redirected by the very administrative due process revolution it gave birth to. And how it happened in practice—how police, prosecutors and corrections came to realize that they had the tools to bypass the criminal process in enforcing the criminal sanction.

I am fortunate that everyone I was grateful to in the acknowledgments to the dissertation remain the people I am most thankful for today, although some survive in memory only. Special appreciation to Malcolm Feeley for his continuing support, most recently evidenced in his generous Foreword to this volume. In addition, my sincere gratitude to Alan Childress for wanting to include this project in Quid Pro’s Classic Dissertation Series.

I dedicated my dissertation to the memory of my father. This publication is dedicated to him, and also to my mother, Emma Greenspan, and the chair of my dissertation, Sheldon Messinger.

ROSANN GREENSPAN

Berkeley, California

January, 2014

The Transformation of Criminal Due Process

in the Administrative State

INTRODUCTION

This study examines the criminal process in the process of adapting to the changing procedural expectations of the administrative state. It examines these changes through doctrinal analysis and through case study of a county criminal justice system, showing how changes in law are brought to bear on the operation of local criminal justice. In asking how the expansion of the administrative state is altering the institutions that administer the criminal sanction and their procedures, it considers the reciprocal relationship whereby criminal courts both provided a model for due process rights in the administrative state and are being transformed by them.

In Part One, I examine changes in Supreme Court doctrine. I argue that the administrative due process revolution grew out of the criminal due process revolution, but developed its own discourse and methodology. Subsequently, administrative due process was rapidly introduced into the criminal process, in part as a check on the further expansion of criminal due process. Administrative due process was used to extend due process hearing rights to parole and probation revocation, and to prison disciplinary procedures. The methodology of the protections against administrative search was adapted in the stop and frisk decisions. Eventually, searches that would have been protected by the probable cause warrant requirement were subsumed under the lower standards of administrative searches. This paradoxical effect of the extension of due process rights to administrative searches on criminal justice searches is paralleled by the use of the administrative due process procedure of probation revocation as a substitute for criminal prosecution, as seen in the chapters that follow.

Part Two (Chapters Three, Four, and Five) examines a state-funded War on Drugs program in a large California county—the Alameda County Targeted Urban Crime Narcotics Task Force—that introduced innovations relying generally on an administrative view of the criminal justice system, and specifically on the use of administrative due process procedures discussed in the earlier chapters.

Chapter Three supplies the background and the outline of the program. The program focused on the development of techniques involving interagency cooperation and coordination, especially to increase the efficiency of narcotics case processing.

Chapter Four examines the role of the District Attorney’s Office, and particularly its use of probation revocation as a prosecutorial device, bypassing the criminal process, and leading to swift and certain punishment. The paradoxical effect of the extension of due process to probation revocation was that it legitimated its use as a substitute for criminal prosecution. The criminal sanction is imposed without invoking the criminal process. I further show how legal developments in California sanctioned this technique. Since the tenure of the Targeted Urban Crime Narcotics Task Force ended, probation revocation has become the normal procedure for probationers arrested in Alameda County, and comparable programs are developing in the largest district attorney’s offices in the state.

Chapter Five examines the changing role of the probation department. Intensive probation promoted an administrative law enforcement role for probation officers, including an increase in the use of the probation search in cooperation with police. By increasing the reporting and drug testing requirements of probationers, intensive probation also increased the likelihood that probations would be revoked on technical grounds.

The Conclusion (Chapter Six) brings together the doctrinal issues raised in Part One and the empirical evidence of Part Two, and discusses the new roles and relationships among the agencies of criminal justice in the Targeted Urban Crime Narcotics Task Force. While there have always been techniques for avoiding the formal criminal process, these changes differ from earlier circumventions in that they are legitimated under the legality of the administrative state. They may represent the new criminal process of the administrative state.

In the Epilogue (Chapter Seven), I examine the impact of the administrative state on theories of law and society. In their concern with legal relations in the administrative state, legal theorists have treated criminal law as anachronistic, despite considerable expansion in the use of the criminal sanction. The chapter ends by recommending reintegrating the criminal process into future socio-legal thought, and speculates that feminist theories of law hold the most promise for such reintegration.

PART ONE

Administrative Due Process and the Criminal Process

1 • LEGAL ORIGINS OF THE THINNING BLUE LINE

The administration of the criminal law presents to any community the most extreme issues of the proper relations of the individual citizen to state power. The criminal law, then, is located somewhere near the center of the political problem.... In short, a study of criminal justice is fundamentally a study in the exercise of political power.[1]

— Francis Allen, 1959

It is the argument of this study that the procedures of criminal justice are changing and becoming indistinguishable from other governmental processes of the administrative state, while criminal punishment remains a significant form of social control. Just as the logic of social control[2] blurs important distinctions between penal and other forms of law,[3] so too has the logic of due process come to blur and, in so doing, eliminate the distinctions between, criminal and administrative procedure. In this chapter, I locate the legal origins of the disappearing criminal process at the unexamined confluence of the Warren Court’s criminal due process revolution and the Burger Court’s administrative due process revolution.[4] In these seemingly separate procedural explosions lay the embryo of the unitary procedure that now threatens the effective existence of criminal procedure.

This transformation in the legal discourse of due process, as revealed in constitutional decisions and law review analyses, involved both an explicit rethinking of the distinct status of criminal procedure and a less deliberate blurring of that distinction. As the courts have concerned themselves with legitimating the regulatory state, they