Street-Level Bureaucrats, Discretionary Justice and Improvised Law

In a fully developed bureaucracy there is nobody left with whom one could argue, to whom one could present grievances, on whom the pressures of power could be exerted. Bureaucracy is the form of government in which everybody is deprived of political freedom, of the power to act; for the rule by Nobody is not no-rule, and where all are equally powerless we have a tyranny without a tyrant” ~ Hannah Arendt, On Violence

What’s Kafkaesque is when you enter a surreal world in which all your control patterns, all your plans, the whole way in which you have configured your own behavior, begins to fall to pieces, when you find yourself against a force that does not lend itself to the way you perceive the world… You don’t give up, you don’t lie down and die. What you do is struggle against this with all of your equipment, with whatever you have. But of course, you don’t stand a chance. That’s Kafkaesque”. ~ Frederick R. Karl

A lower-than-anticipated percentage of applicants was being found ineligible at the initial, telephone-intake stage. One of the suggested strategies for increasing efficiency included instructing screeners to make conclusions of ineligibility “for as many applicants as possible” and to exercise greater discretion in finding people ineligible whose income and assets fall within 15 per cent of the allowable limit.38 In other words, one of the most effective disentitlement mechanisms is to withhold the benefit of the doubt from applicants” ~ Lorne Sossin

~~~

Franz Kafka gained many of his impressions and creative inspiration for what would become his ‘Kafkaesque’ trademark style from administrative processes during his tenure as bureaucrat in various government agencies. One of these was responsible for dispensing disability benefits (Jerry Mashaw).

Today I am reading about the phenomenon called ‘bureaucratic disentitlement’ and how it applies to a government’s effort to reduce access to social assistance; ‘welfare’.

Bureaucratic disentitlement is described as follows: “Policymakers… can accomplish [welfare reductions] without changing a single eligibility condition or requirement by making administrative adjustments which have the same effect. For example, they could simply open the welfare centers an hour later each morning and close them an hour earlier. They could relocate centers from poor neighbourhoods to central downtown locations. They could multiply the number of appointments necessary to establish eligibility. Carrying this logic further, officials could increase the amount of time applicants must wait for appointments, remove some of the chairs from the waiting room, add pages to the application form, reduce the number and variety of foreign language interpreters, and so forth” (Matthew Diller).

A welfare applicant, entering this onerous and labyrinthian system, is disentitled by way of administrative design. It is a matter of technological or bureaucratic restructuring. No longer must a politician justify their choice to cut or eliminate social assistance benefits. The benefits remain. On paper. In theory. And yet, in reality, the applicants struggle and some, “don’t stand a chance”. The result, of course, is that the total number of benefit recipients falls, as planned. Furthermore, if the application process is time-consuming and gruelling, an experience few would want to embark upon, then a deterrent effect kicks in. Don’t even try, is the message, for you will not make it and even if you do, it will cost you; psychologically, emotionally, physically.

On top of that, you will be judged. Morally held to account. Are you worthy? Deserving? How come you have not embraced the reigning ideology of self-sufficiency and independence? Did you not know that your citizenship came with that requirement? Certain imperatives. Don’t become a burden. We will not invest in you, you ‘undeserving poor’. Stereotypes abound. Lazy is one word being thrown around. Leech is another.

Let’s return to bureaucratic disentitlement. An example. Ontario’s welfare system. The process by which a government determines eligibility for social benefits. Before I delve in, a reminder. Bureaucratic disentitlement: “effectuated through such practices as withholding information, providing misinformation, isolating applicants and requiring extraordinary amounts of documentation, [every one of which] prevents the transformation of statutory rights into tangible benefits” (Sheri Danz).

Whether it is a matter of too few resources or inadequate training, or a deliberate political or institutional policy, “disentitlement is not always a clear-cut experience of losing or failing to obtain benefits. It is often the accumulation of subtle, difficult to pinpoint ‘discouragement practices.’ For one applicant, it might be the physical location of a welfare office, for another it might be the inability of welfare officials to cope with demand, leading to long lines, frayed nerves and exhausted staff and applicants, while for still another any one of these could be overcome but together they represent a simply insurmountable barrier” (Lorne Sossin).

And of course, nobody is responsible. It is the system. These are the rules. Arendt’s ‘Tyranny without a tyrant’.

I am reading Sossin’s paper, ‘Boldly Going Where No Law Has Gone before – Call Centres Intake Scripts, database fields and discretionary justice in social assistance’. He describes the rules of the game. We are in Ontario, in the 90s. Being ‘tough on welfare’ is politically attractive. New strategies for bureaucratic disentitlement are being rolled out.

These include: a “centralized ‘one size fits all’ administrative process that is complex and inflexible; failing to assist applicants with the process; staff relations characterized by poor training and high turnover; and creating new steps and steps within steps that claimants must surmount before becoming eligible for benefits. The new [system] confronts claimants with a daunting and onerous two-stage application process (which involves a first stage telephone intake screening, a second stage face-to-face follow-up interview, each with significant information and documentation requirements), an ineffectual but time-consuming internal reconsideration process, and further delay, cost, and procedural uncertainty if a denial is appealed to the Social Benefits Tribunal” (Sossin).

The Intake Screening; step one. Intake officials in intake call-centers; the ‘first line of defence’ against a horde of potential applicants. Officials are the gateway to step two, the in-person interview. Before the green light is given, several barriers have to be navigated. The screening process includes: (1) the call centre; (2) the interactive voice response; (3) the scripts; (4) the screening; and (5) the discretion.

A few notes on each.

The Call Center – Most applicants fail at this step. Many might have qualified but they simply give up and withdraw. The applicant calls the call center. A face-less voice responds. The applicant, too, nobody but an anonymous voice on an earpiece. Noise. A disturbance. Officials are quantity oriented. Quality drops. “Call center operators are usually given time-per-call targets and number-of-call quotas. These numbers are usually monitored on an employee-by-employee basis, and employees know that they are being assessed against these criteria. In this environment, intake screeners would not feel free to extend time with any one applicant, and applicants would be less likely to obtain assistance appropriate to their particular situation” (Sossin). Calls are recorded. Monitored. For quality control, so it goes. On record, deviation from script or too much helping by an official can be censored. Applicants too might feel the burden of ‘big brother listening in.’ They may not talk as freely. Or may not talk at all, giving up after having tried 10 or 15 times, or more.

It all seems strategic, as if this were a feature and not a bug. Sossin writes, “minimizing the likelihood that intake screeners will be interested in using the tools available to them to ‘work the system’ in a client’s favour is a crucial element in actualizing an agenda to reduce the number of social assistance clients”.

The interactive voice response – You can’t reach an official? No problem. Use the interactive voice response system perfectly designed for your needs and questions. Press 1 or 2 or 3 depending on your issue. Oh, your complex situation can’t be reduced to a standard inquiry falling under 1, 2 or 3? Too bad.

The Scripts – You have reached the intake official. Or is it a robot or is it a human? Scripts must be followed. Little leeway is given. Questions are read from a script and answers recorded. Inputs of data. Complexity strained away leaves a data point. A click of a button. Category B for you, Category A for you. Sossin writes, “A legal clinic caseworker was told by the call centre that the telephone screening process could not be bypassed, even for a schizophrenic claimant with a comprehension problem. Further, the call centre was not able to handle an “I don’t know” response to any of the questions posed. The same legal clinic caseworker was told that it was not acceptable to provide the information requested at the face-to-face eligibility meeting; the application could not proceed unless the screener was given a number to enter into the system.”

The Screening Process – Another telephone interview. Forty minutes this time. You don’t have a phone? Shame. You are living with cognitive impairments that leave you vulnerable to misunderstanding or not comprehending the numerous questions being asked? Shame.

You have been deemed ‘ineligible’. What now? You can appeal. Within 10 days. “The process of lodging an “objection” to the “finding of ineligibility” is complicated and must be followed precisely, otherwise it will become a “decision” that cannot be appealed” (Sossin).

Congratulations, you have now passed to the second stage of the process. The in-person interview. Welcome to the waiting room. It has been designed to be as uninviting as possible. This is not where you want to be. Sossin reports, “Aside from the chairs, and one Government of Canada Job Bank Machine, the waiting room is completely bare. There are no posters, no information pamphlets, no radio, no magazines to read while waiting for a worker, nothing. There is no carpeting, no windows to the outside, There is a shelving unit, which appears to have been used at one time for pamphlets, but it is completely empty. The walls and floor are painted “institution” pink and green. The atmosphere is cold, untrusting, and uninviting, and needs to be seen to be appreciated.” This is definitely not where you want to be! And yet, be here you must. You wait.

For welfare applicants waiting represents “the physical embodiment of their own weakness” (Austin Sarat). The tyranny of the wait. If pain must come, let it come quickly.

Because you are you, because you are here, waiting, you are also, somehow, less deserving of care and regard. In one office in the U.S., the following experience was noted: “There is no clock on the wall – a fitting omission in a room where time stands still. … By 2:00pm children who have been at [the office] since 8:00am are either crying from hunger or falling asleep. Women cannot feed their children in the building, nor can they leave to get food for fear they will be called for their intake interview and miss it. One woman fed her children sandwiches in the bathroom, so they would not starve while waiting to be called” (Sossin). In effect, your humanity becomes a debased humanity; reduced in value. Why can’t the child eat? Why this slight? Is it necessary?

The interview has arrived. You are now assessed for a disability. Are you ‘disabled’ enough? Worthy enough, or just faking it? A “‘Disability Determination Package’ (DDP) must be completed, which requires assistance from medical professionals (many of whom charge a user fee for these services). Applicants receive no support in completing this paperwork… Ironically, the complexity of the package, the lack of any resources to provide support to applicants or even to reasonably accommodate the very disabilities that underlies the program, make the program the least accessible to those who are most vulnerable… Feedback on missing or inadequate documentation is often not forthcoming, and supplemental reports from specialists are often required even where primary care physician reports are available” (Sossin).

You, your body and your mind are now at the mercy of the ‘Disability Adjudication Unit’; officials here have the “authority and mandate to interpret the definition of disability (that is, whether the applicant is ‘substantially impaired’) and to evaluate the evidence submitted in support of an applicant’s file.” (Sossin).

Some criticisms of this Unit include: “requiring additional evidence of applicants that proved unnecessary… failing to request medical information when clearly required… failing or refusing to review new evidence… refusing to consider medical conditions not referred to in DDP forms… discounting undiagnosed or unexplained conditions, ignoring or unduly relying on its own policy manual, and finally, mis-characterizing or ‘cherry-picking’ medical evidence to support a conclusion” (Sossin).

Finally. You have been deemed eligible. You are now receiving benefits. Assistance which you require to survive. And yet, it can be ‘clawed back’. Why? Because you are responsible for continuously proving your eligibility. Eligibility is not a ‘one-off’. The question remains open. What about now? What about now? How about now? Still ‘disabled’? Are you sure?

Sossin writes, “individuals in complex or challenging circumstances may be unable to meet the onerous requirements of continuously proving their eligibility, which include providing an astounding amount of financial and nonfinancial information and documentation at the risk of benefits being terminated.”

Big Brother is ever watchful and stingy. You must remain ‘deserving’ of investment. Remember the mantra: self-sufficiency and independence. There is no ‘free ride’. Unless of course, you are politically important, have clout, lobbying power or are already well moneyed. Then, there are ways, short-cuts, bailouts, tax deductions and so on. Legal loopholes. Lawyers catering to money. Systems designed by the powerful, the ‘deserving’, are systems that cater to the powerful, the ‘deserving’. “I am smart for not paying taxes”, quipped Trump. Not smart; enabled by a system designed to keep money and regard where money and regard, investment and value does and ought to reside; rightfully. And so the story goes.

Discretionary Justice – defined simply as “as minimizing injustice from the exercise of discretionary authority” (Sossin). What will it take? Why does it matter?

It matters for many reasons. Here is one. Front-line decision makers are de facto policy makers. “Policy and administration are indistinguishable because these decision makers deal with a high volume of cases, with few opportunities for supervision, and must adapt general and abstract rules to the complex, personal circumstances of applicants” (Sossin).

~

Michael Lipsky introduced a ‘theory of street-level bureaucracy’. He was struggling to find a vocabulary for that “problematic ‘place’ in the political system where government meets people”. He focused on teachers, police and lower court judges as ‘street-level bureaucrats’; one can also include social workers and even intake workers in this cohort. Whatever a ‘client’ gets from government is largely that which the street-level bureaucrat does with or to them.

Street-level bureaucrats have the following common traits; they are individuals who: “1) are constantly called upon to interact with citizens in the regular course of their jobs; 2) have significant independence in job decision-making; and 3) potentially have extensive impact on the lives of their clients.” Furthermore, their work experience is strongly shaped by three conditions: “1) relative unavailabi1ity of resources, both personal and organizational; 2) existence of clear physical and/or psychological threat; and 3) ambiguous, contradictory and in some ways unattainable role expectations”.

Lipsky: “street-level bureaucrats are the ultimate policy makers.” They ‘translate’ legislation into a ‘legislation as experienced on the ground’. This occurs in large part via exercising discretion in the context of limited resources, decontextualized ‘clients’, over-work, stress, sometimes threats and scrutiny up to sanctioning from above. By the time legislation ‘filters’ through the hands of street-level bureaucrats, it might be something quite different. A welfare system designed to limit access to social service benefits, access to which is safeguarded as a right in legislation, in effect, warps the legislation; rights filtered through a system promoting circumscribed discretion become disentitlements.

This occurs in many other domains as well. Policing for example. Street-level interactions. When individuals are treated unfairly and have their constitutional rights disregarded by police, and then also are unable to obtain remedies, the law, de facto, is not what it ought to be. Discretion has warped it, changed it. This is what the legislation says, and this is what happens. A different policy comes out at the other end. A policy of discrimination, violence and silencing. A policy of disregard. The law, de facto, exists, in the context of such street-level interactions, not on paper, but as practiced. As lived. As improvised.

~

Adams advocates as against understanding law as something that is only experienced as an external force obeyed by legal subjects. “Legal subjects are not law-obeying but rather law-creating, generating their own legal subjectivity and establishing normative authority as a knowledge process of creating and maintaining reality.” This makes law improvised. Legal meaning takes place in the moment. Law is not a “reified entity, fixed in space and time, a normative grid that descends from above to bring order and fairness to human affairs.” It is created, in the moment, as interactions enfold; “law is an explanation, not an artefact; it is an explanation of human behaviour from a legal perspective.”

To be a legal subject, an agent who acts, as opposed to an object which is acted upon, means that you are law creating, “in the sense that law is not an object (in textual or institutional form) but rather a form of knowledge, which itself is a process of creating and maintaining myths about realities.” Legal meaning flows from, according to Adams, our own understanding of the law, of what we are obliged to do. I am compelled to stop at a stop sign not because of any legislative provision, nor because of the word ‘stop’ on the sign, but because I understand what is legally required in a situation when my car rolls up to a stop sign.

As Adams writes, “I understand the potentially fatal consequences of ignoring such rules, particularly for vulnerable pedestrians and cyclists. Or perhaps I am more self-interested than mindful of the needs of others, in which case I understand at the very least that powerful state forces (democratic or otherwise) will penalize me if I violate traffic rules. My understanding is certainly influenced by law originating with a political state, but other influences contribute as well—my relationship with my father, who taught me to be a responsible driver, what I imagine my father will think, how disappointed he will be if I fail to live up to the standards he provided, my understanding of the social and civic significance of all those Elmer the Safety Elephant films I watched in public school, my lived experience of fatal collisions and the emotions of grief and anger that follow—this entire, complex web of experience and conversation is equally relevant.”

Is this why some officials act with impunity? Do they know from experience or from word of mouth that the law will not hold them accountable? The law on paper, certainly. But the law as improvised daily by the interactions between people and ‘law-enforces’ and ‘law-administrators’, those street-level bureaucrats and policy makers, probably not. The law is given a different meaning. As working for some and not for others. As exempting Bob but not Charlie. As permitting X but not Y. Regardless of what it all says on paper.

A law-creating legal subject’s act of obligation does not originate with the form or content of a reified legal system, the deus ex machina of a rule-book in the sky, but rather with the social construction of legal meaning.” Am I legally obligated to permit applicant X to access social assistance benefits? He doesn’t perfectly ‘fit’ the category of people the law had in mind. Discretion is called for. This time, I will allow it.

Am I legally entitled to social assistance? The law on paper says so but whenever I try to access it, de facto, the law as improvised during my interaction with the street-level bureaucrat seems to offer me only disentitlement and grief.

Discretion implies judgment, judgment as a response in the moment of uncertainty. Judgment is rarely about finding the ‘right’ answer but demands that one find the most persuasive or reasonable answer or interpretation. Judgment can never be scripted. If it were scripted, then there would be no requirement to make a choice, to judge. Judgment is improvised. And so, Adams writes, “legal subjects cannot avoid responsibility for creating legal meaning by delegating this task to a reified legal order, thus absolving themselves of the consequences. Instead, legal subjects must assume for themselves the task of normative evaluation, in essence an endless process of evaluating their own behaviour. When I ask myself, what am I obliged to do, I am really asking myself, what kind of person am I? … The very idea of law must be autobiographical.

Judgment is improvised, yes, but almost always emerges from a particular “narrative commitment”: the meaning I give to an interaction as influenced by what I believe myself obligated to do – narrative expectations – as flowing from a larger story or understanding I have about the event and its context. Immigration officials in a country whose national immigration policy is toxic and furiously anti-immigrant ‘breathe in’ and are motivated by this ethos, this narrative. In their daily interactions, they are emboldened by it, moved by it, justified by it. Their narrative commitment becomes stronger the more their particular habits of discretion are implicitly or explicitly encouraged. The law on the books, the Constitution for instance, is ‘translated’ with this narrative commitment in mind. Discretion adjusts. Children are torn from their parents. Rights are disregarded. Legal meaning is composed each time a commitment is made to a particular narrative.

At times, narratives are in tension. Reconciliation is demanded, and so the “legal subjects hold each of their multiple narrating selves up to the scrutiny of each of their other narrating selves, and up to the scrutiny of all the other narrated selves projected upon them by others. . . . [they]… improvise, working to reconcile competing and conflicting narrative options, composing a sense of obligation in the moment that responds, as justice must, to the specificity of the moment” (Adams).

~

Intake workers may be swept up in a narrative commitment of ‘being tough on welfare applicants’. Each time that they apply discretion in a circumscribed manner to deny social assistance, the commitment becomes stronger. Their translation of the legislation, their law-creating acts, de facto, create a legal experience of disenfranchisement. But it is all justified, morally on solid ground. The law, as understood, as explained, as interpreted demands no less. It guides their hands. To what ends?

~~~

“‘the instinct of domination’… ‘to command and to be obeyed’… these definitions coincide with the terms which, since Greek antiquity, have been used to define the forms of government as the rule of man over man—of one or the few in monarchy and oligarchy, of the best or the many in aristocracy and democracy, to which today we ought to add the latest and perhaps most formidable form of such dominion, bureaucracy, or the rule by an intricate system of bureaux in which no men, neither one nor the best, neither the few nor the many, can be held responsible, and which could be properly called the rule by Nobody. Indeed, if we identify tyranny as the government that is not held to give account of itself, rule by Nobody is clearly the most tyrannical of all, since there is no one left who could even be asked to answer for what is being done. It is this state of affairs which is among the most potent causes for the current world-wide rebellious unrest
~ Hanna Arendt, On Violence.

“The gatekeeper has to bend way down to him, for the great difference has changed things to the disadvantage of the man. “What do you still want to know, then?” asks the gatekeeper. “You are insatiable.” “Everyone strives after the law,” says the man, “so how is that in these many years no one except me has requested entry?” The gatekeeper sees that the man is already dying and, in order to reach his diminishing sense of hearing, he shouts at him, “Here no one else can gain entry, since this entrance was assigned only to you. I’m going now to close it.”
~ Franz Kafka, Before the Law

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