On October 4, 2012 Professor Franklin E. Zimring delivered the Annual George and Margaret Barrock Lecture on Criminal Law to a large audience of interested public, law students, faculty, and members of the legal profession. Professor Zimring is the William G. Simon Professor of Law and Wolfen Distinguished Scholar at the University of California, Berkeley School of Law.
His subject was the origins and legacies of the so-called Wickersham Commission of 1929-1931. Since the Commission’s work is largely forgotten today, Professor Zimring assumed the burden of explaining how “this hopeless venture ended up being viewed as a precedent setting and positive contribution to the ways in which the national government learns about crime and criminal justice.” In this he succeeded, his remarks serving as a timely, thoughtful introduction to the Law School’s day-long conference on the Wickersham Commission that was held on October 5, 2012. (More on the conference in my next blog.)
Professor Zimring identified what he calls the “Wickersham model.” Well-funded and backed by President Herbert Hoover, the Commission displayed “precedent-setting energy.” The Commission itself consisted of eleven blue-ribbon members, including prominent lawyers, judges, and 2 academics. The prime movers, however, were the staff and experts hired by the Commission, who looked beyond the Prohibition issue at broader problems of criminal justice. For the most part the staff reports were the work of academics and reform-oriented lawyers, who drew from the latest thinking in social sciences, social service, and the law. Their methodology and reports are Wickersham’s legacy and the core of the Wickersham model. Here one finds a clear demographic (generational) gap between the commissioners, on the one hand, and the staff and experts, on the other. In 1931 the Commission published 14 reports on a variety of legal issues, including Prohibition, statistics in law enforcement, the prosecution function, child offenders, and penal institutions. Its report on “Lawlessness in Law Enforcement,” which documented coercive police practices such as the infamous “third degree,” is perhaps the one best remembered today.
The Wickersham model consists of four elements. Three of them affected the methods and functions of later national commissions through the 1960s. First, the staff dominated the Commission’s work in terms of their numbers, their expertise, and their writing of the reports. Second, the staff used social science methodology, producing reports that are “data driven.” Third, the Commission emphasized “long range perspectives rather than specific discrete policy choices.” Fourth, the Wickersham Commission functioned as a “ceremony of adjustment”, which aimed at reconciling the public and the government to social realities that were not amenable to change through law. The Commission’s reports, for example, documented the “cost and ineffectiveness” of Prohibition measures that paved the way for its repeal several years later.
The Wickersham model prevailed into the 1960s after which it fell from favor, replaced by a variety of governmental alternatives that grappled with intractable social problems, such as drug abuse. “[A] broad national commission effort to survey policy options in areas such as crime, drugs, violence and race have passed from the American scene.” Why? Perhaps because a commission “of any degree of independence was probably considered too great a risk to generate unwelcome conclusions.”