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Article

Tom Delreux and Johan Adriaensen

Principal–agent analyses have been frequently applied by scholars of the European Union (EU). The model helps to explain the reasons, modalities, and consequences of the delegation of authority from one (set of) actor(s)—the principal—to another (set of) actor(s)—the agent. Instances of delegation are omnipresent in the EU: not only is the EU founded upon the delegation of rule-making powers from the member states to the supranational level (European integration), but delegation is also frequently occurring from one actor or institution to another within the political system of the EU (EU decision-making). Assuming that institutions are forums for strategic behavior by rational actors, the principal–agent model has advanced our understanding of European integration and EU politics by zooming in on contractual, dyadic relationships that are characterized by an act of delegation and the controls established to minimize the risks related to delegation. Principal–agent analyses can be used to address two types of questions: first, on why and how the principal delegates authority to the agent (i.e., the “politics of delegation”), and second, on the ensuing game between the principal and the agent when the latter executes the delegated task on behalf of the former (i.e., the “politics of discretion,” or “post-delegation politics”). Principal–agent analyses in the field of EU politics have been conducted using a diverse set of methods and research designs, with large-N quantitative studies on how principals control their agent, over in-depth case studies of the formers’ motives for delegation, to more recent attempts to capture post-delegation politics and the agent’s discretion in a systematic and quantitative way. Under the condition that the principal–agent model is applied carefully and for questions on the politics of delegation and the politics of discretion, it remains a useful tool to understand contemporary EU politics.

Article

Bureaucratic politics, discretion, and decision-making for natural hazards governance present an important challenge of the use of autonomous bureaucratic discretion in the absence of political accountability. Understanding how these factors influence discretion and policymaking is of critical importance for natural hazards because the extent to which bureaucrats are able to make decisions means that communities will be safer in the face of disaster. But the extent to which they are held accountable for their decisions has significant implications for public risk and safety. Bureaucrats are unelected and cannot be voted out of office. There are two significant areas that remain regarding the use of bureaucratic discretion in natural hazards policy. One key area is to consider the increasing emphasis on networked disaster governance on bureaucratic discretion and decision-making. The conventional wisdom is that networks facilitate disaster management much better than command and control approaches. However, the extent to which the use of bureaucratic discretion is important in the implementation of natural hazard policy, particularly for mitigation and preparedness, remains an open area of research. The other key area is the influence of bureaucratic discretion and decision-making when communities learn after a disaster. The political nature of disasters and the professional expertise of public service professionals imply that in order to make communities safer, bureaucrats will have to use discretion to push forward more aggressive mitigation and preparedness policies. Bureaucratic discretion would need to be used for both political and policy purposes in order to engage in policy learning after disasters that produces a substantive change.

Article

Marisa Omori and Oshea Johnson

There have been two major approaches to studying racial and ethnic inequality in punishment: The first approach comes from the sociology of punishment and social inequality literatures, and considers how the carceral state, including criminal justice institutions, create racial inequality through policies and practices broadly, or how racialized narratives are embedded in these policies and practices. This includes how scholarship has been drawn from institutional racism and other race literatures and integrated these ideas into how punishment policies and practices are racialized, as well as how the criminal justice system is both a consequence of and a contributor to increasing racial inequality. In particular, the social inequality literature has also been concerned with the rise of mass incarceration and its consequences for racial inequality in individuals, families, and communities. The second approach is drawn from the criminology literature on courts and sentencing, and generally focuses on the magnitude and location of racial disparities for individuals being processed in the criminal justice system, with a particular attention to sentencing outcomes. There are several complementary frameworks that have been used to frame racial inequalities in punishment outcomes; most of them focus on individual-level decisions and decision-makers, with some considerations of organizational-level factors. Most often, this literature also quantitatively tests racial disparities of court processing and court case outcomes, with a particular focus on sentencing of convicted defendants, including whether a defendant was sentenced to prison or not (the “in/out” decision), and the length of prison sentence. The two perspectives can inform each other; the sociology of punishment focuses on policies and practices that drive racial inequality, and the courts and sentencing literature focuses on the consequences of these factors in case processing outcomes.

Article

Crises are uncertain and disorderly situations, which temporarily destabilize power relations and impede centralized control over operational crisis responders (e.g., firefighters, police officers, paramedics). Consequently, responders wield considerable autonomy and have room to act on their own initiative. They make crucial decisions in frontline crisis operations based on their situational understanding and professional expertise. As such, they are similar to other “frontline workers” (or street-level bureaucrats) in government service. Their important work has attracted increasing attention in crisis management literature, in which three tensions have emerged. The first tension revolves around the nature and extent of frontline discretion. In some studies, these frontline responders are presented as implementers who are considerably constrained by extensive rules, planned routines, and detailed protocols. Other studies, instead, emphasize the independent and proactive behaviors of frontline workers who use their discretionary space to shape crisis response efforts. The second tension centers on the reasons for discretionary actions. Typically, crisis scholars analyze social and rule-based pressures on frontline workers to explain their discretionary actions as they implement public policy. Critics, instead, build on responders’ own stories to grasp their meaning-making attempts and use this as a basis for understanding why and how responders enact their discretionary practices. The final tension concerns the advantages and disadvantages of frontline worker discretion. There is a widespread belief that frontline discretion in crisis response enables much-needed improvisation, creativity, and flexibility, but increased discretion may also raise legitimacy questions and potentially burden frontline workers with complex ethical dilemmas. To move the understanding of frontline workers in crisis management forward, further research is required in several areas. Empirically, frontline workers are increasingly working in transboundary crisis networks, so that more research is necessary to understand how such crisis networks affect frontline discretion. Theoretically, literature on frontline work in crisis management has remained by and large isolated from other micro-level theories on crisis management, even though there are opportunities for fruitful cross-fertilization with adjacent literatures.

Article

In 1980 Michael Lipsky published “Street-level Bureaucracy,” arguing that public policy is often vague and imprecise, and relies on frontline workers to make sense of it on the ground in delivering public services. At the same time, the book is critical of frontline workers for not complying with policy in their use of discretion. Lipsky’s approach has influenced a great deal of subsequent analysis of public service provision, but continues to contain an unresolved tension at its core. If policy is vague, how can discretion be judged non-compliant against it? The street-level bureaucracy approach has tended to seek to resolve this tension by assuming that all public services are fundamentally the same and that all public service workers should use discretion in a particular way. While street-level bureaucracies—front line public services—are similar in that they are subject to policies, operate under conditions of inadequate resources, and afford frontline workers discretion in their work, there are also significant differences between types of public services in the ways they work with policy and the nature and extent of discretion of staff delivering the service. Different services do different things; the nature of the policy they work with varies, and the logic of provision and priorities vary between services. Policy, for instance, may refer to a precise set of instructions, or to setting out particular concerns or broad-brush commitments. Some services, such as benefits provision, are specified in detailed policy which not only sets out what they can do but also how decisions should be made. Others services, such as policing, are subject to a range of policies and concerns often expressed as conflicting demands that have to be balanced and managed in the particular circumstances of their application. And others, mainly human services, are primarily thought of in terms what the professionals within provide, and assumes a logic of service provision to be located in those providing the service. Policy is sometimes more explicit and discretion narrower; it is sometimes looser and relies more on discretion. It may, in some circumstances, be sufficient to refer to policy to understand what services are supposed to do; in other circumstances, policy alone provides a poor picture of what’s expected. Street-level bureaucracy analysis is too broad-brush and cannot capture the range of ideas of compliance in public services. It tends to equate policy with instruction and judgement with organizational thinking, and to see non-compliance as endemic in the use of discretion. In doing this, it fails to appreciate the variety of relationships between policy and public services; the varied extent of discretion in different settings, and the range of concerns and ethical commitments in different public services. Compliance in policy implementation needs to be sensitive to different types of public services and the subsequent variety of commitments and concerns of street-level bureaucrats in those public services.

Article

Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition). The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another. The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation? Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.

Article

As a part of the policy process, implementation follows policy as formulated and decided upon. Three aspects can be distinguished as inherent to the term implementation. The first one regards the temporal order in which implementation in a policy process takes place. The second aspect concerns the causal logic, while the third one is about the form of authority. Policy implementation is looked at and talked about from two fundamentally contrasting perspectives. One can be called an “ideal” perspective, the other a realistic one. “Ideal” stands here for a use of the term implementation without further reflection; the phenomena the term refers to are taken for granted. By contrast, the alternative perspective can be labeled as a realistic one. This perspective is a construction as well, but instead of taking things for granted it invites for empirical observation and testing. From an ideal perspective implementation is viewed as following instructions. Implementation is seen as a separate stage, identifiable as such. Inputs are supposed to determine outputs, while authority is exercised in a hierarchical relationship. From a realistic perspective implementation is seen as practice. It is approached as a multilevel phenomenon. Results of a policy process are explained by a variety of factors and social mechanisms. Authority is exercised as based on various sources. Both the view on implementation as following instructions and its realistic opposite shed a relevant light on implementation and its place in the policy process. Each view can be found in the practice as well as the study of the policy process. In the expectations about national politics the view on implementation as following instructions may be more observed than the alternative view, while at the street level of government the opposite can be supposed. However, these concern empirical questions. As far as implementation research is concerned, the normative appeal of the assumptions underlying the view on implementation as following instructions makes that view still occurring. At the same time, these assumptions have been challenged rather fundamentally, both at a theoretical and empirical level. The opposite character of the two views has consequences for the ways implementation and its place within the policy process are understood, but also for the ways in which variation in the results of policy processes is explained. Ultimately, understanding and explaining those results are enhanced when an approach is adopted in which elements from both views have been incorporated.

Article

The juxtaposition of two major recent legal developments—the emergence of victims’ rights, and the increasing prevalence of plea bargains in the criminal process—raises profound dilemmas. Ever since the end of the 18th century, criminal proceedings have been conducted by states against defendants, based on the traditional view that crime is an offense against the state. Hence, victims’ participation has been curtailed under different legal systems. In adversarial (Anglo-American) systems, based on common law, the parties dominate the proceeding, and the onus is on the prosecution to prove its case; while in inquisitorial systems (continental), the judge dominates the proceedings, thus reducing the responsibilities of the parties. Although most states display mixed adversarial and inquisitorial characteristics, three systems exemplify different approaches to victims’ rights in plea agreements. The federal US system—the adversarial legal system in which the victim movement began its first steps; the French system—a civil law system, where victims are allocated a formal, albeit limited role; and the Israeli system—a juryless common-law-based system, where professional judges make both legal and evidentiary decisions. In the Anglo-American systems, victims were marginalized, and this lack of standing resulted in one of the more important legal developments of the 20th century—the struggle for victims’ rights. The victims’ movement is a grassroots movement, a social phenomenon that has led to significant legal changes. Consequently, a new perception has seemingly been incorporated into adversarial criminal law systems, whereby victims’ interests should be taken into account. The federal U.S. law enshrined victims’ rights in 2004, and in Israel the major legislation of victims’ rights took place in 2001. In the French system, since the early 20th century, victims have been formally recognized as partie civile—the civil side to the criminal process. The victims have a standing and they can claim compensation. The question of victims’ role in plea agreements is of particular importance, since in recent years, plea agreements have become the rule rather than the exception in Anglo-American criminal proceedings. In 2004, the French law also created a mechanism akin to plea agreements. In the federal U.S. system, victims can express their opinion regarding a plea agreement, and they can apply for a writ of mandamus, should any of their rights be disregarded by the prosecution. Under the Israeli system, victims of severe sexual and violent offenses may speak to the prosecutor and express their views, albeit not in court. In the French system, the victims’ role in plea agreements is limited to claiming compensation. Despite these developments, victims’ rights in plea agreements may still be partial or ineffective. For example, under both U.S. and Israeli law, the victims’ objection to such an agreement may have a very limited effect on the criminal process. Moreover, the prosecution has been granted immunity from any civil lawsuit following infringement upon victims’ rights. Under the French system, the victims’ involvement is limited to an appeal regarding the compensation she has been awarded.

Article

Brett Curry and Banks Miller

The pervasiveness of their influence arguably makes prosecutors the most consequential actors in the American criminal justice system. Armed with discretion over which cases to pursue, what charges to file, and which issue areas to prioritize, prosecutors play a decisive role in determining what progresses from investigation to the courtroom. It is their charge to do justice in each case, but that obligation hardly forecloses the influence of politics on their decisions. Despite their centrality, however, prosecutors and their behavior have failed to garner even a fraction of the attention that scholars have directed toward law enforcement, correctional systems, or judges. The discretion of American prosecutors is theoretically immense; there are few formal constraints upon it. If a federal or state prosecutor declines to pursue a case that has been referred to him or her, that declination decision is essentially immune from judicial review. But these formalisms come with more practical limitations. At the federal level, United States Attorneys are appointed by the president and, therefore, are expected to carry out an administration’s general policy priorities. In the states, most district attorneys answer to the electorate, which imposes its own constraints on a prosecutor’s freedom of action. Chief prosecutors—state and federal—are simultaneously principals to their subordinates and agents of the people or the president. If those considerations were not enough, American prosecutors must be mindful of still other factors. How might their actions today impact their future career paths? What influence might legislative changes, public opinion, or judicial rulings have on how they operate? Scholarship on prosecutors has addressed some of these questions, but we still lack a good understanding of all the ways in which politics infects prosecutorial decision-making. As “progressive prosecutors”—many who are former public defenders—continue to win office, new questions will arise about how far prosecutors can push reform of the criminal justice system. A major looming question is how voters conditioned to law-and-order rhetoric will evaluate the new prosecutors. Some preliminary work shows that non-White prosecutors tend to reduce rates of incarceration, while Republican-affiliated prosecutors increase them.