Title

Role-Based Policing: Restraining Police Conduct “Outside the Legitimate Investigative Sphere”

Abstract

The last quarter of a century has produced a growing legitimacy crisis in the criminal justice system arising from profound and familiar differences in race and class. The same tactics used to win the War on Crime also harassed and intimidated the very people policing was supposed to protect, sending disproportionate numbers of young minority men and women to prison as part of War On Drugs.

In this article, I take up challenge of social norms theorists who advocate empowering police and local communities through a variety of traditional and newly minted public order offenses. My claim is that the sort of preventative policing they advocate, singling out quality of life issues, can and should be separated from reactive investigative policing directed at apprehending criminals. The police, as currently constituted, are simply the wrong people to engage in preventative policing. My proposal is to radically restructure the manner in which we think about the legitimacy of various policing practices and the type of authority wielded by the police. The rule-based attempt to limit police authority through prospective constitutional (and other) norms limiting their ability to search, seize, and interrogate suspects does not work to constrain their ability to police public order and engage in crime prevention. Instead, I propose a series of role-based constraints of the scope of police authority.

Much like the separation-of-powers limitation upon the various branches of government, role-based constraints suggest that municipalities should match the authority conferred upon particular government officials to the specific problems to be addressed through public order policing. The appropriate local authorities include bus drivers and crossing guards: municipal officials with no power to engage in investigation but who have the authority to enforce norms of public order. Such officials possess limited institutional legitimacy outside of their various spheres of operation and no role-based authority to engage in the invasive, investigative policing practices currently utilized in predominantly urban areas

Disciplines

Civil Rights and Discrimination | Criminal Law | Criminal Procedure | Jurisprudence

Date of this Version

September 2005