Researching Law Volume 31 Issue 1 - Flipbook - Page 7
VO L 31 | NO 1 | SP RING 2020
reforms on the books, but also
through various “accommodations,
bargains, and distortions.”
Observations revealed that beyond
the traditional criminal problems,
the criminal process also handled
various social issues, including
family difficulties, mental illness,
and financial disputes. Because
the criminal process was complex,
the role of the police was also
complicated. Members of the
public viewed police as crime
fighters but also expected them
to serve as problem-solvers and
peacekeepers. The police were not
only called upon to fight crime,
but also to handle unpredictable
incidents including responding to
a wide range of disputes, directing
traffic, finding missing persons,
handling stray animals, and even
providing first aid.
The Pervasiveness of
Discretionary Decisions
The Survey’s findings dispelled
long-standing myths about
the administration of criminal
justice, such as the idea that the
primary role of the police is law
enforcement and the belief that it
is possible to eliminate discretion
by actors within the criminal
justice system. Observations by
the ABF Survey team found that,
contrary to previous assumptions,
the administration of justice
was permeated by discretionary
decision-making.
Within the administration of
criminal justice, the ABF Survey
illustrated that the most critical
discretionary actions were made
at the bottom, not the top, of the
criminal justice bureaucracy. Police
on the streets, district attorneys,
and probation officers often
decided when and how to act.
The team found that structured
legal norms did not guide much
of the decision-making by police.
Rather, their decision-making was
improvised and created to simply
“get the job done.”
The ABF Survey was the first to
reveal the challenges faced by all
actors in the administration of
criminal justice, in balancing the
competing calls for applying legal
rules and a sensitive appreciation
of situational and human needs.
From arrests to plea bargaining,
officials used discretion to balance
the need for justice with empathy,
sensitivity, and moral motivation
to gauge behavior and make
ethical decisions. Unfortunately,
field researchers observed that
discretionary decision-making
could sometimes lead to unlawful
HERMAN GOLDSTEIN
Image courtesy of University
of Wisconsin-Madison Law
School, Gargoyle
The ABF Survey was
the first to reveal the
challenges faced
by all actors in the
administration of
criminal justice,
in balancing the
competing calls for
applying legal rules
and a sensitive
appreciation of
situational and
human needs.
arrests and casual unprofessional
conduct by police.
Herman Goldstein, who later
became Professor of Law Emeritus
at the University of WisconsinMadison with a focus on policing,
was a researcher on the ABF
Survey team. Goldstein and his
team conducted observational
research on the day-to-day
functions of the police in Detroit,
Michigan. There, the ABF Survey
team witnessed police misconduct,
including a group of four police
officers nicknamed the “big four,”
who road an unmarked Buick
with weapons such as pistols,
sledgehammers, and axes. The
“big four” would drive around
town looking for bars to raid
and targeting black citizens. They
would participate in harassment
and police brutality.
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