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Transparent Policing

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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.

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... 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). ...
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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. ...
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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].
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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.
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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.
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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.
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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.
Article
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.