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Abstract
This Article delineates the troubled legitimacy of discretionary policing in law enforcement and articulates a means of making this authority more democratic and trustworthy. It begins by discussing the meaning of democracy in American constitutionalism, the various legal and political theories of constitutional democracy, their relevance for the criminal justice system, and the democratic prerequisite of free access to government information and decisions. The Article defines the concept of law enforcement discretion, describes its current state in American criminal justice, and delineates between overt discretion susceptible to popular oversight and secret law hidden from public view. It then contends that undemocratic opaqueness in policy and practice undermines the legitimacy of criminal law and its administration, damages community trust in law enforcement, and decreases popular compliance with legal commands. Finally, the Article suggests that "transparent policing" might offer both a theoretical and programmatic approach to democratic discretion in law enforcement that can help ameliorate these problems.
... To truly engage in "democratic policing," citizens must examine law enforcement activity to ensure that the democratic ideals of transparency, accountability, andperhaps most important-fundamental fairness are reflected in police behavior (Bayley, 2006;Hickman, 2009;Luna, 2000;Sklansky, 2008;Skolnick, 1999). Democratic policing is therefore best viewed as an ongoing process rather than an achievable end in itself. ...
... The academic literature on citizen complaints can be organized in terms of studies about the receipt and processing of complaints (Brandl, Stroshine, & Frank, 2001;Dugan & Breda, 1991;Griswold, 1994;Hassell & Archbold, 2010;Hickman, 2006;Hickman, Piquero, & Greene, 2000;Hudson, 1970; Independent Commission on the Los Angeles Police Department, 1991;Lersch & Mieczkowski, 1996;Liederbach, Boyd, Taylor, & Kawucha, 2007;Littlejohn, 1981;Pate & Fridell, 1993;Wagner, 1980aWagner, , 1980bWorrall, 2002), the characteristics of officers who are the subjects of complaints (Brandl et al., 2001;Hassell & Archbold, 2010;Hickman et al., 2000;Lersch & Mieczkowski, 1996, 2000Liederbach et al., 2007;Pate & Fridell, 1993;Wagner, 1980b), and the characteristics of complainants (Hudson, 1970;Lersch & Mieczkowski, 1996;Liederbach et al., 2007;Pate & Fridell, 1993;Wagner, 1980a). There is also literature focused on the structural correlates of complaint volumes and dispositions, such as agency organizational characteristics, the presence of external review entities, agency policies and procedures, and community demographics (Brandl et al., 2001;Cao, 1999;Cao, Deng, & Barton, 2000;Griswold, 1994;Hassell & Archbold, 2010;Hickman, 2006;Hickman & Piquero, 2009;Hickman et al., 2000;Lawton, Hickman, Piquero, & Greene, 2001;Lersch, 1998;Lersch & Mieczkowski, 1996, 2000Shjarback, 2015;Worrall, 2002). ...
... The academic literature on citizen complaints can be organized in terms of studies about the receipt and processing of complaints (Brandl, Stroshine, & Frank, 2001;Dugan & Breda, 1991;Griswold, 1994;Hassell & Archbold, 2010;Hickman, 2006;Hickman, Piquero, & Greene, 2000;Hudson, 1970; Independent Commission on the Los Angeles Police Department, 1991;Lersch & Mieczkowski, 1996;Liederbach, Boyd, Taylor, & Kawucha, 2007;Littlejohn, 1981;Pate & Fridell, 1993;Wagner, 1980aWagner, , 1980bWorrall, 2002), the characteristics of officers who are the subjects of complaints (Brandl et al., 2001;Hassell & Archbold, 2010;Hickman et al., 2000;Lersch & Mieczkowski, 1996, 2000Liederbach et al., 2007;Pate & Fridell, 1993;Wagner, 1980b), and the characteristics of complainants (Hudson, 1970;Lersch & Mieczkowski, 1996;Liederbach et al., 2007;Pate & Fridell, 1993;Wagner, 1980a). There is also literature focused on the structural correlates of complaint volumes and dispositions, such as agency organizational characteristics, the presence of external review entities, agency policies and procedures, and community demographics (Brandl et al., 2001;Cao, 1999;Cao, Deng, & Barton, 2000;Griswold, 1994;Hassell & Archbold, 2010;Hickman, 2006;Hickman & Piquero, 2009;Hickman et al., 2000;Lawton, Hickman, Piquero, & Greene, 2001;Lersch, 1998;Lersch & Mieczkowski, 1996, 2000Shjarback, 2015;Worrall, 2002). Finally, there have been at least two national-level data collection efforts reported in the literature (Hickman, 2006;Pate & Fridell, 1993). ...
National data on citizen complaints about police use of force were collected by the Bureau of Justice Statistics (BJS) in 2003 and 2007. These data are a critical component of the Department of Justice’s (DOJ) overall response to 42 USC 14142, which requires the Attorney General to “acquire data about the use of excessive force by law enforcement officers.” The BJS data have the potential to help support democratic policing, provide baseline data on use of force for comparative statistical reporting and research purposes, and enable strong local checks on police abuses, provided their validity and reliability can be demonstrated. This study sought to assess the validity and reliability of the BJS data. Findings indicate that the BJS data suffer from serious measurement flaws, do not provide a valid and reliable basis for comparative statistical reporting and research purposes, and should not be relied on for purposes of litigation.
... We leave aside the question of the scope of accountability, particularly as regards public accountability, as this raises complex questions about competing objectives (see e.g. Luna 2000, Zarsky 2013, Ditchley Foundation 2015. ...
The goal of predictive policing is to forecast where and when crimes will take place in the future. The idea has captured the imagination of law enforcement agencies around the world. Many agencies are purchasing software tools with the goal of reducing crime by mapping the likely locations of future crime to guide the deployment of police resources. Yet the claims and promises of predictive policing have not been subject to critical examination. This paper provides a review of the theories, techniques, and assumptions embedded in various predictive tools and highlights three key issues about the use of algorithmic prediction. Assumptions: The algorithms used to gain predictive insights build on assumptions about accuracy, continuity, the irrelevance of omitted variables, and the primary importance of particular information (such as location) over others. In making decisions based on these algorithms, police are also directed towards particular kinds of decisions and responses to the exclusion of others. Evaluation: Media coverage of these technologies implies that they are successful in reducing crime. However, these claims are not necessarily based on independent, peer reviewed evaluations. While some evaluations have been conducted, additional rigorous and independent evaluations are needed to understand more fully the effect of predictive policing programmes. Accountability: The use of predictive software can undermine the ability for individual officers or law enforcement agencies to give an account of their decisions in important ways. The paper explores how this accountability gap might be reduced.
The modern law of search and seizure permits warrantless searches that ruin the citizenry's trust in law enforcement, harms minorities, and embraces an individualistic notion of the rights that it protects, ignoring essential roles that properly-conceived protections of privacy, mobility, and property play in uniting Americans. Many believe the Fourth Amendment is a poor bulwark against state tyrannies, particularly during the War on Terror. Historical amnesia has obscured the Fourth Amendment's positive aspects, and Andrew E. Taslitz rescues its forgotten history in Reconstructing the Fourth Amendment, which includes two novel arguments. First, that the original Fourth Amendment of 1791-born in political struggle between the English and the colonists-served important political functions, particularly in regulating expressive political violence. Second, that the Amendment's meaning changed when the Fourteenth Amendment was created to give teeth to outlawing slavery, and its focus shifted from primary emphasis on individualistic privacy notions as central to a white democratic polis to enhanced protections for group privacy, individual mobility, and property in a multi-racial republic. With an understanding of the historical roots of the Fourth Amendment, suggests Taslitz, we can upend negative assumptions of modern search and seizure law, and create new institutional approaches that give political voice to citizens and safeguard against unnecessary humiliation and dehumanization at the hands of the police.
This article assesses the effectiveness and legitimacy of Kenya's policing framework by reference to the extent to which it promotes public law values, especially public participation and accountability. In doing so, the article questions the adequacy of the existing legislative and institutional mechanisms for the accountability of the policing apparatus, whether public or private. The article advances two principal arguments. First, it argues that Kenya's policing framework is ineffective largely because it is executive-dependent, undemocratic and inequitable. And because it is undemocratic, it lacks legitimacy, which is a fundamental prerequisite for effective policing. Secondly, it argues that Kenya's public law framework is not suitable for the creation of an effective and democratic policing apparatus in the “contracting state”. As a result, public-private partnerships for crime prevention and control, which are necessary given the limited resources of the Kenya Police Force, will not be effective in the absence of democracy-enhancing legislative and institutional reforms. Indeed, in the absence of such reforms, the growing private policing regime will only serve to perpetuate citizen perceptions of injustice to the detriment of governmental legitimacy.
The American public consistently ranks crime prevention as the single most important objective for the criminal justice system, putting this goal ahead of punishment, enforcement, and rehabilitation. One popular but controversial method recently employed to prevent recidivism is the use of offender registries. The most common type of registry currently in use is the sex-offender registry. Responding to the public’s perception that sex offenders pose a particular risk to society, federal legislators—as well as legislators in all 50 states and the District of Columbia—have enacted legislation creating mandatory sex-offender registries. The primary rationale for tracking and notification requirements was that giving the public access to information would allow citizens to protect themselves and other vulnerable members of society. A wealth of evidence suggests that sex-offender registries have not accomplished the goal of making citizens safer. Nevertheless, lawmakers in a number of states have proposed new crime registries for offenses ranging from crimes against children, to the manufacture of methamphetamine, to murder. Moreover, poll data has revealed that the American public supports expanding registries to include crimes other than sex offenses. The rising popularity of public crime registries in spite of evidence of their inefficacy is perplexing, until one considers the social science research revealing individuals’ need to perceive control over anxiety-provoking threats. The illusion of control and attribution literature provides a rich body of work suggesting that the implementation of such registries, rather than providing any real instrumental advantage, serves to bolster feelings of self-efficacy and minimize public anxiety.
This article argues that the central purpose of U.S. constitutional governance is the protection of individual rights for the common good. Members of all three branches of government must fulfill that public trust through just policies and actions. The maxim of constitutional governance establishes a stable foundation for the rule of law, requiring government to function in a nonarbitrary manner. It provides the people with consistency and predictability about the scope of governmental powers and responsibilities.The foundational dictate of governance is incorporated into the U.S. constitutional tradition through the Declaration of Independence and the Preamble to the Constitution. Those two documents reflect the national commitment to promulgating laws that are conducive to both the public good and the personal pursuit of happiness. The federal legal system must integrate protections of rights for the common good into statutes, regulations, and judicial opinions that address a plethora of social demands and problems.The project of maxim constitutionalism runs counter to positivist skepticism about the validity of fundamental constitutional principles. This article seeks to demonstrate that maxim constitutionalism reflects the normative underpinning of legal order that is compatible with pluralistic self-governance. The protection of rights for the common good facilitates the workings of a polity that tolerates debate and deliberation. The administration of laws for the public benefit enjoins tyrannical majoritarianism and abuse of state authority.Like originalism, maxim constitutionalism utilizes historical analysis. But it departs from originalism by denying that the original meaning of the Constitution’s text should be determinative. Maxim constitutionalism is a binding norm that is independent of any individual mind frame, whether past or present. In addition, though the forward progress of constitutionalism is informed by judicial opinions, it is not defined by them alone. Congress must also play a central role in identifying rights and promulgating statutes for their protection. Recognizing this bedrock purpose of governance distinguishes maxim constitutionalism from prominent strands of living constitutionalism by furnishing an objective and enduring standard for evaluating the legitimacy of governmental actions. The assessment of public conduct is not procedurally neutral but substantively rich in its account of how governmental actors should further the public good through a legal system designed to secure life, liberty, and the pursuit of happiness for an equal citizenry.
In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making.Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the Supreme Court’s hostility to protecting criminal procedure rights. Instead, it arises from a set of institutional pressures that, in combination, differentiate criminal procedure from other forms of constitutional decision-making. By identifying the problem of structural overdelegation, this Article clears away much of the confusion that complicates normative debates about the Supreme Court’s criminal procedure decisions. Why does the Supreme Court so frequently grant discretionary authority to law enforcement institutions that other observers find untrustworthy? How can one tell whether the Court has granted “too much” discretion to law enforcement officials, and what does that phrase even mean? By turning attention to criminal procedure’s structure, this Article offers a framework for answering these questions, and for deepening our understanding of criminal procedure decision-making.
Using the metaphor of the People as a body, this article argues that the jury acts as the People's eyes and voice. It draws upon recent political science literature to describe the difference between "ocular" and "vocal" democracy and the conditions for each occurring. It concludes that a racially and otherwise diverse jury promotes those conditions. Consequently, if Batson is seen as aspiring to such diversity, then there are strong theoretical justifications for Batson. The piece also discusses a diverse jury's role in unifying the parts of the People's body, in combating political leader's manipulative scorn for the People, and in humbling those leaders -- all aspects of ocular democracy. Additionally, the piece finds evidence of support for a theory of ocular democracy and the jury in American history leading up to the Bill of Rights and in the structure of that Bill, pointing out the relevance of these matters for protecting of the jury trial right and today viewing it as a right to a diverse jury. Finally, in discussing vocal democracy, which others (unlike with ocular democracy) have addressed in the Batson context, the piece discusses the special political value of jury deliberation not only in the jury room but in the changed broader political behavior of the jurors long after the trial ends.
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police. First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm-efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full “law of the police,” the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of § 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of non-judicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.
Two centuries ago, the American criminal justice system was run primarily by laymen. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, and denounced the guilty. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for the voice of the jury. The public sees little of how this assembly-line justice works, and victims and defendants have largely lost their day in court. As a result, victims rarely hear defendants express remorse and apologize, and defendants rarely receive forgiveness. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers.In The Machinery of Criminal Justice, author Stephanos Bibas surveys these developments over the last two centuries, considers what we have lost in our quest for efficient punishment, and suggests ways to include victims, defendants, and the public once again. These ideas range from requiring convicts to work or serve in the military, to moving power from prosecutors to restorative sentencing juries. Bibas argues that doing so might cost more, but it would better serve criminal procedure's interests in denouncing crime, vindicating victims, reforming wrongdoers, and healing the relationships torn by crime.The Introduction to the book is attached.
Crime-mapping technology has the potential to reshape Fourth Amendment protections in designated "high-crime areas." In Illinois v. Wardlow the Supreme Court held that presence in a high-crime area is one of only two factors necessary for creating reasonable suspicion to stop an individual. Since Wardlow, thousands of federal and state cases have used the term "high-crime area," yet only a handful of courts have considered how to define it. New crime-mapping technologies can now address that definitional problem. Crime-mapping technologies can collect and analyze crime statistics so that police districts can produce almost perfect information about the level, rate, and geographic location of crimes in any given area. The result: police can define official "high-crime areas" for Fourth Amendment purposes. Crime-mapping technology raises significant Fourth Amendment questions. Does crime-mapping technology alter the existing Fourth Amendment reasonable suspicion analysis? Will this technology create an implicit high-crime area exception to the Fourth Amendment? How will this technology effect police-citizen encounters and liberty interests in officially designated high-crime areas? This Article addresses these questions in an effort to reevaluate and rethink the concept of the high-crime area as understood by the courts. Tracing the history and practice of crime-mapping technology and its effect on Fourth Amendment doctrine, this Article proposes a new framework and redefinition of the term that is both informed by existing crimemapping technologies and consistent with Fourth Amendment principles.
The United States Supreme Court has often declared individualized suspicion to be at the heart of probable cause. Yet critics see this as a commitment in word more than deed.Other critics, primarily philosophers, so no real conceptual difference between generalized and individualized suspicion. Moreover, no one has seriously tried to define the term. This article seeks first to fill this definitional gap, second to argue that the philosophers are wrong, and third to catalogue the social benefits and costs of an individualized suspicion requirement, suggesting a more structured way to choose among types of individualized suspicion and when, if ever, to jettison all those types entirely. The article draws on philosophy, psychology, and a branch of behavioral economics - fair price theory - to make its point.
In Breaking the Law to Enforce It: Undercover Participation in Crime, I draw attention to a common but seldom examined police practice: permitting undercover police to engage in criminal activity in order to further an investigation. In covert operations police have, for example, established fencing businesses that paid cash for stolen goods and testified falsely in fictitious legal cases in actual courts. This practice of authorized criminality is secret, unaccountable, and in conflict with some of the basic premises of democratic policing. And to the extent that authorized criminality presents mixed messages about their moral standing, it undermines social support for the police. Despite the fact that authorized criminality raises some of the most fundamental questions regarding the police in a democratic society, it has seldom been the topic of scholarly investigation. Moreover, there is little meaningful regulation of a policing practice that is rich in complexity and paradox. By drawing attention to the harms posed by authorized criminality, the article invites a broader discussion about the normative tradeoffs and limits of deceptive investigation.
Ordinary citizens are being arrested and prosecuted for recording police conduct in several states. These arrests are being made pursuant to state wiretapping statutes that prohibit the recording of any communication without the consent of all parties. Some of those arrested have filed lawsuits under 42 U.S.C. § 1983, claiming the arrests violate the First Amendment. However, courts have tended to dismiss these suits, arguing that the right to record the police is not “clearly established.” This Comment argues that the right to monitor the police and report misconduct is a clearly established, if not fundamental, element of American policing. It also maintains that arresting and prosecuting individuals who record police conduct constitutes an unconstitutional prior restraint on speech. It concludes by arguing that judicial decisions rendering the recording of police unquestionably legal would not undermine police efforts.
In the post-September 11 era, liberal democracies face the question of whether, and if so to what extent, they should change the relationship between liberty and security. This book explores how three major liberal democratic states - the United States, the United Kingdom and Germany - have approached this challenge by analysing the human rights impacts of their anti-terrorism laws and practices. The analysis reveals that the most far-reaching restrictions of liberty have been imposed on minorities: foreign nationals and certain 'racial', ethnic and religious groups.This disparate treatment raises complex issues concerning the human right to non-discrimination. Differential treatment on the basis of nationality, national origin, 'race' or religion is only compatible with the right to non-discrimination if there are objective and reasonable grounds for it. The author evaluates contemporary anti-terrorism efforts for their compliance with this requirement. Is there, in the context of the current 'war on terror', sufficient justification for applying powers of preventive detention or trial by special tribunal only to foreign nationals? Are law enforcement methods or immigration policies that single out people for special scrutiny based on their national origin, or their ethnic or religious appearance, a suitable and proportionate means of countering terrorism? The concluding part of the book argues that, in the long term, discriminatory anti-terrorism measures will have impacts beyond their original scope and fundamentally reshape ordinary legal regimes and law enforcement methods.
Colección que reflexiona sobre la importancia central que la transparencia y rendición de cuentas ocupa en la construcción y consolidación de las democracias, en tanto que vuelve real el derecho a la información de los ciudadanos. La serie aborda tanto la dimensión teórico-filosófica del asunto, como aspectos prácticos del tema, tanto genéricos como referidos a México.
Preconceived notions can affect the job performance of com- munity service recruits. In this investigation, the knowledge and per- ception of relative safety of recruits being trained to patrol central Philadelphia are compared with actual locations and safety levels of these neighborhoods to determine which communities were not per- ceived accurately. Results demonstrate that knowledge of the area did not translate into perceptions of safety. Rather, preconceived notions of the ethnic composition of the neighborhoods translated into notions of relative safety. These faulty impressions need to be corrected before recruits are assigned to serve this community.
It's been a tough day. I've spent most of it worrying about the Free Speech Principle. Or at least, the Free Speech Principle described in Cass Sunstein's Democracy and the Problem of Free Speech, a book by an author I greatly admire. According to Sunstein, the primary purpose behind free speech is promoting democratic deliberation about issues of public policy. Hence he divides speech into higher and lower tiers of protection. Speech most worthy of government protection is concerned with deliberation about public issues; the rest is subject to varying degrees of government regulation. It is a thesis with a considerable historical pedigree. Alexander Meiklejohn made a similar claim in the 1940's. Moreover, like Meiklejohn, Sunstein emphasizes that the scope of individual rights should consciously be shaped in order to promote the goals of democratic deliberation. Conversely, we should be less concerned about regulation of other types of speech-for example, advertising and pornography-because they do not contribute to democratic deliberation.
Although trust is an underdeveloped concept in sociology, promising theoretical formulations are available in the recent work
of Luhmann and Barber. This sociological version complements the psychological and attitudinal conceptualizations of experimental
and survey researchers. Trust is seen to include both emotional and cognitive dimensions and to function as a deep assumption
underwriting social order. Contemporary examples such as lying, family exchange, monetary attitudes, and litigation illustrate
the centrality of trust as a sociological reality.
Recent years have witnessed several proposals to reconsider American constitutionalism in light of the "civic republican" strain identified by historians in the political thought of the founding era. This new republicanism must meet (among others) two objections. First, that traditional republicanism was a solidaristic doctrine presupposing a degree of moral consensus that is nonexistent in a modern, diverse, liberal society. Second, that it was a majoritarian doctrine of popular legislative supremacy that is fundamentally incompatible with the modern constitutionalist aim of securing, by judicially enforced higher law, individual rights against political oppression. Professor Michelman takes up these two objections to the "republican revival," contending that only through a modern reconsideration of republican constitutional thought can we hope to make sense for our age of Americans' persistent beliefs and avowals that political liberty calls for both "a government of the people, by the people" and "a government of laws and not of men." Drawing support from both traditional republican sources and contemporary readings, the author argues that these two demands are jointly satisfiable only by ideally conceiving of both legislative politics and constitutional adjudication as forms of self-revisionary normative dialogue through which personal moral freedom is also achieved. Using Bowers v. Hardwick as an example, he suggests that such a dialogic-republican constitutional theory can inspire stronger judicial protection of individual rights than do competing theories.
Prosecutorial discretion plays a pervasive role in the administration of criminal justice. Prosecutors exercise essentially unchecked power in making decisions about charging and plea bargaining. The decisions they make determine in large part who will be convicted and what punishment will be imposed. Yet prosecutors "are not held to anything like what due process would require if they were engaged in an acknowledged rather than hidden system of adjudication." Professor Vorenberg suggests the need to reexamine the "broad and rather casual acceptance" of prosecutorial discretion. He argues that the current scope of discretion is unjustifiably broad not only in terms of the principles of fairness, equity, and accountability on which our system of criminal justice is based, but also in terms of those considerations thought by the supporters of prosecutorial discretion to justify its existence. Professor Vorenberg then charts the path towards a more principled and accountable system of prosecutorial discretion, designed to assure the public as well as defendants that the vast powers prosecutors exercise are subject to "decent restraint."
Urban crack markets have received more police attention than markets for cocaine powder, and crack buyers and sellers have received harsher punishments than powder buyers and sellers. Crack defendants are largely black; powder defendants are not. Some say this divide is simply racist. Others say the system actually helps black communities by concentrating on black drug crime. In this Essay, Professor Stuntz argues that neither position is correct. The recent focus on crack, he claims, has less to do with race than with class. The market for cocaine, like many other markets, tends to segment into upscale and downscale markets. Downscale markets tend to be much easier for the police to penetrate than upscale markets. In addition, the social harms from consensual crime tend to be concentrated where the downscale markets are--in poor urban neighborhoods. As a result, police and prosecutors tend to focus their attention not on drug crime generally, but on certain kinds of drug crime in certain kinds of neighborhoods. This enforcement strategy, in turn, tends naturally to produce racial or ethnic "tilts," since poor urban neighborhoods are so often segregated along racial or ethnic lines. This process is not new: Much the same thing happened in the way police attacked prostitution in the late 1800s and alcohol in the 1920s. Though this kind of enforcement stragegy is understandable, Stuntz argues that it is likely to fail. Differential enforcement breeds resentment, which undermines the law's normative force. To succeed, drug enforcement needs to become more self-consciously egalitarian.
The advent of community and problem-oriented policing--the so-called "quality-of-life" policing philosophies--raises complex questions concerning police discretion in addressing minor street misconduct and judicial response to that discretion. In this Article, Debra Livingston addresses these questions by reassessing the ways in which courts have employed the facial vagueness doctrine to limit police discretion in the performance of "order maintenance" tasks. Livingston contends that aggressive employment of the facial vagueness doctrine is an inadequate mechanism for limiting police discretion and at the same time could impair positive change in the direction of community and problem-oriented policing. As an alternative to the facial invalidation of reasonably specific public order laws, Livingston proposes political and administrative measures to manage police discretion in the community policing era. Livingston begins by examining the emergence of the new, more preventive policing with its focus on ameliorating problems of neighborhood disorder. In communities that may elect to address quality-of-life concerns, she argues that police will sometimes need new legal authority--thus raising the question whether police can be granted the authority to address minor street misconduct within current constitutional constraints. Livingston argues that some courts have extended the vagueness prohibition beyond its stated concern with indefinite laws that encourage arbitrary and discriminatory enforcement to deal with the broader issue of police discretion in order maintenance. She contends that the invalidation of public order laws can never be an adequate solution to the problem of police discretion and that communities should not be prevented from employing an amalgam of civil, criminal, and administrative law to authorize police to perform order maintenance tasks. When these new public order laws are not facially aimed at rendering some people outsiders to the community, but are instead directed at setting behavioral standards in the interest of making a community's public life possible, courts should not invalidate them. As an alternative to courts' intervention, Livingston argues that political and administrative mechanisms should be employed to manage police discretion in the community policing era. The author argues, in particular, for enhancing community-police reciprocity as a means of helping to ensure that police discretion is exercised for the benefit of the community. She argues for renewed attention to political controls on the police and for more neighborhood involvement in the nomination of policing problems. She suggests that police departments formulate guidelines to inform the exercise of police discretion. Finally, she argues that internal and external monitoring mechanisms be used to obtain information from the community about the policing services being provided and the satisfaction of local residents with these services.
In this Article, Professor Sunstein describes those aspects of republicanism that have the strongest claim to contemporary support, outlines the role of republican thought in the founding period, and explores some of the implications of republicanism for modern public law. Sunstein claims that the basic republican commitments involve (1) deliberation in government; (2) political equality; (3) universality, or agreement as a regulative ideal; and (4) citizenship. Professor Sunstein contends that all of these commitments played an important role during the founding period, generating a distinctive conception of governance. In his view, the common opposition between liberalism and republicanism is a false one; the founders were liberal republicans-a position that, Sunstein argues, is superior to its principal competitors. Sunstein claims that republican ideas suggest reformation of a number of current areas of modern public law, encompassing such contexts as statutory construction, campaign finance regulation, federalism, and discrimination. Professor Sunstein concludes with a discussion of recent proposals for group or proportional representation, arguing that such proposals can be supported by reference to the republican belief in deliberative democracy.
I begin with a passage from Alexander Bickel's classic work, The Least Dangerous Branch:
The root difficulty is that judicial review is a countermajoritarian. force in our system. There are various ways of sliding over this ineluctable reality. Marshall did so when he spoke of enforcing, in behalf of "the people," the limits that they had ordained for the institution of a limited government . . . . Marshall himself followed Hamilton, who in the 78th Federalist denied that judicial review [was undemocratic].
Congress enacted the Sentencing Reform Act of 1984 to structure judicial discretion. Its goal was to reduce unwarranted disparity while retaining flexibility to individualize sentences in proportion to the seriousness of crimes and the history and characteristics of offenders. Pursuant to the Sentencing Reform Act, the U. S. Sentencing Commission implemented sentencing guidelines. These guidelines, now in force for five years, have stressed uniform sentences at the expense of proportionality. The district courts' response to the guidelines has been overwhelmingly critical: the prescribed sentences are too complex and severe, and the system too inflexible to accommodate the basic mission of judges-to do justice. Appellate courts have exacerbated the problem. As trial judges have departed from guideline prescriptions in accord with the statute, appellate courts have countered with strict guideline enforcement decisions, rejecting efforts to individualize sentences in proportion to case facts. These circuit court decisions have often misread the statute and misunderstood the impact of restrictions on the multi-discretionary process that produces sentences. This Article describes how a new system of informal discretionary sentencing at the district court level is responding to these restrictions. Prosecutors, defense attorneys, and probation officers are negotiating dispositions that adjust or sidestep the guidelines in order to produce reasonable sentences that trial judges will accept and that will not be appealed. This system is reintroducing individualized justice in sentencing, but at the expense of a new form of disparity: between those who follow the guidelines as gospel and those who avoid them as unjust.
Professor Kadish examines representative occasions in which administration of the criminal law currently involves exercises of official discretion effectively isolated from judicial review and the rule of law. He finds the existence of such unfettered discretion to be a threat to basic values implicit in notions of due process of law, and concludes that although polar alternatives to discretion may be undesirable or illusory, criminal law enforcement can often be improved substantially by the imposition of legal procedures and standards upon the exercise of discretion.
To the bewilderment of pedestrians in the 1980s, panhandlers, aimless wanderers pushing shopping carts, and other down-and-out individuals appeared with increasing frequency in the downtown areas of the United States. During the same period, in an apparent paradox, the Skid Rows of most U.S. cities were in sharp decline. While New Yorkers were encountering more panhandlers in their subway system, their city's most famous Skid Row—the Bowery—was fading from view. While the number of homeless campers occupying Palisades Park in Santa Monica rose, fifteen miles away, Los Angeles's Skid Row east of Spring Street was losing population.
By the early 1990s, the increased disorderliness of the urban street scene had triggered a political backlash. Commentators began to report that the urban populace was suffering from "compassion fatigue." Even in the nation's most liberal cities, mayoral candidates campaigned for greater control of street misconduct, and city councils passed crackdown ordinances. In New York, San Francisco, Washington, D.C., and countless other cities, these legal measures, coupled with a general hardening of pedestrians' attitudes, began to reduce the incidence of disorderly behavior in public spaces. In 1994 alone, voters in Berkeley, Santa Monica, and Santa Cruz—three of the most politically liberal municipalities in California—compelled their local officials to take steps to limit street disorder.
Police decisions not to invoke the criminal process largely determine the outer limits of law enforcement. By such decisions, the police define the ambit of discretion throughout the process of other decisionmakers—prosecutor, grand and petit jury, judge, probation officer, correction authority, and parole and pardon boards. These police decisions, unlike their decisions to invoke the law, are generally of extremely low visibility and consequently are seldom the subject of review. Yet an opportunity for review and appraisal of non-enforcement decisions is essential to the functioning of the rule of law in our system of criminal justice. This Article will therefore be an attempt to determine how the visibility of such police decisions may be increased and what procedures should be established to evaluate them on a continuing basis, in the light of the complex of objectives of the criminal law and of the paradoxes toward which the administration of criminal justice inclines.
The principles of legality and separation of powers are conventionally understood to require that law-making, law- interpreting, and law-enforcement be carried out by separate institutions. This paper challenges this understanding in the context of federal criminal law. Descriptively, it maintains that federal criminal law is most accurately conceptualized as a "common-lawmaking" regime in which Congress delegates power to courts by enacting incompletely specified statutes. Normatively, it argues that the law would be better if the delegated-lawmaking authority that courts now exercise were instead wielded by the Department of Justice. The legal mechanism for this reform would be the so-called Chevron doctrine, which requires courts to defer to Executive Branch readings of ambiguous regulatory statutes. The likely advantages of such an arrangement include greater expertise in the making of criminal law, greater uniformity in the interpretation of it, and (most surprisingly) greater moderation in the enforcement of it.
Academics are virtually unanimous that search and seizure law is a "mess," with vacillating interpretations producing a thoroughly confusing and unwieldy doctrine. Although legal scholarship has offered a variety of solutions to the muddle, few authors have attempted to connect Fourth Amendment jurisprudence with overarching theoretical justifications. Instead, critics have either described the Court's precedents or prescribed change within the narrow confines of criminal procedure law. What is needed is a framework that unites the Fourth Amendment with modern constitutional theory. Professor Luna proposes a new approach founded on a sovereignty-based theory of the Constitution. Under this "individual rights" model, government searches and seizures of an individual's zones of personal sovereignty receive the strongest presumption of invalidity. Absent one of three theoretically consistent exceptions, government intrusions into the body and home are beyond the boundaries of official authority. By protecting zones of personal autonomy, the individual rights model fits the constitutional text, context, and precedents while providing a theoretical justification that connects neo-Kantian philosophy and American constitutionalism. Professor Luna contrasts the individual rights model with what he calls an "antidiscrimination" approach to the Fourth Amendment, which focuses on group participation in the political process rather than coercive effects on the individual. He identifies an important flaw in the antidiscrimination model: the lack of a constitutional floor protecting individuals and constraining government. Professor Luna's individual rights model provides content to that constitutional floor--tangible zones of individual sovereignty.