What constraints does a commitment to democracy place on law enforcement? What implications, conversely, do modern police forces have for how we think about democracy? What is the relationship, in short, between democracy and policing?
Everyone seems to agree that the relationship is important. References to democracy or to "democratic values" appear regularly in judicial decisions setting limits on law enforcement. They are even more common in legal scholarship analyzing and appraising those limits. And they are a fixture of sociological studies of the police. No one could suggest now, as George Berkley did in 1969, that the police pose one of the "least recognized problems of modern democracy." (1) Even in 1969 the suggestion was doubtful: Jerome Skolnick's widely influential study of the dilemmas of "law enforcement in democratic society" was already three years old, (2) James Q. Wilson had just published his equally influential study tying police practices to local political traditions, (3) and three presidential commissions had been appointed in rapid succession to address problems associated with the police. (4) In the late 1960s, the police were on many people's minds, and, to a remarkable extent, they have stayed there ever since.
Discussions of democracy and policing are widespread today, particularly with respect to policing outside the United States. Increasingly, for example, efforts to create or to strengthen democracies overseas take for granted the need to establish police forces that are, in some important sense, democratic. (5) In a sign of the times, part of the retraining that the American military has conducted for Iraqi police officers has involved asking them to come up with "words consistent with 'democratic policing.'" (6)
But what exactly is "democratic policing"? The Iraqi police could be excused for scratching their heads. For the truth is that relatively little effort has been made to spell out, systematically and carefully, the connections between policing and democracy. We sometimes talk as though there were a simple trade-off between "democratic values" on the one hand and, on the other hand, security, order, and law enforcement--the objectives of the police. This way of thinking assumes both that we know what "democratic values" policing affects and that the relationship is straightforward. But the values at stake and the nature of the relationship are anything but clear.
Sometimes, for example, democratic policing seems identified with procedural regularity and the "rule of law"; this was an important part of Skolnick's account, (7) which in turn echoed aspects of earlier arguments by Jerome Hall (8) and Herbert Packer. (9) At other times democracy appears tied to respect for certain substantive rights--rights, for example, against unreasonable search and seizure and compelled self-incrimination. (10) An Iraqi village leader invoked this idea when complaining about home searches conducted by occupying American forces: "How do these soldiers have the right to come into my home like this? ... Where is the democracy that the Americans promised?" (11) Sometimes democracy seems tied to popular participation in policing, either through some form of civilian oversight or through police practices that involve "partnering" with or "delegation" to the "community." (12) At other times democracy is said to require placing police departments under a much more thoroughgoing form of community control. (13) Democratic values are sometimes invoked in support of giving police officers themselves a degree of control over the nature of their work. (14) (Not surprisingly, some Iraqi police officers have taken this view. (15)) And sometimes democracy in policing seems simply a matter of dealing with the public in a particular way: what Wilson called the "service style" (16) and what is now often lumped together with "partnering," "delegation," and sundry other fixes under the slogan "community policing." (17) The American officials retraining the Iraqi police may have had something like the "service style" in mind when they talked about "democratic policing"; press reports suggest the Iraqi officers have been urged to become more "polite," "kind-hearted," and "service-oriented." (18)
As for the trade-offs, we sometimes talk as though effective policing is like trains running on time: something we need to sacrifice a little if we wish to live in a democracy. The goal is to strike the right balance between letting the police do their job and preserving our democratic liberties. The more of one, the less of the other. This is the assumption that underlay much of the discussion of the "homeland security" measures the Bush Administration proposed in the aftermath of the terrorist attacks of September 11, 2001. At other times, though, we talk as though democratic policing is the same thing as effective policing--as though "democracies can, so to speak, have their cake and eat it too," (19) because, with respect to the police, "democracy and efficiency in public administration are one and the same." (20) A good deal of the discussion about "community policing" in recent years, for example, has proceeded from this optimistic assumption. Between the poles of strict trade-off and perfect convergence, of course, lie other, more complicated possibilities. But they remain largely unexplored.
The vagueness of most discussions of democratic policing is particularly striking given the efforts that philosophers, political scientists, sociologists, and legal scholars have made over the past half-century to think rigorously about the nature of democracy. Since the 1950s, "democratic theory" has been a rich, lively, and sprawling field of interdisciplinary inquiry. The field has attracted more than its share of gifted thinkers and has generated more than its share of arresting, influential work. But little of this work directly addresses the police; this is one sense in which Berkley was right to complain that the problems of democratic policing were under-recognized. And few discussions of policing draw explicitly on democratic theory.
Certainly this is true of criminal procedure, the field of jurisprudence and legal scholarship concerned with how the police carry out their business. In often minute detail, criminal procedure law regulates how and when the police can conduct searches, seizures, and interrogations. Almost everybody appears to believe that these restrictions have important implications for democracy, but the nature of those implications is rarely examined with care, either by judges deciding cases or by scholars reviewing what the judges have done. As a result, invocations of democracy in criminal procedure cases often seem to be little more than lip service. In criminal procedure scholarship, sometimes even the lip service is missing.
Moreover, criminal procedure has almost nothing to say, in any direct fashion, about other questions of apparent pertinence to the relation between policing and democracy, such as the structure of decisionmaking within police agencies and the arrangements by which the police are made subject to or insulated from external, political control. In part, but only in part, this selective silence reflects our collective decision to entrust the development of criminal procedure rules to courts, and our sense, which may or may not be well-founded, that courts are ill-suited to address questions of systemic design. (21) Because thinking about criminal procedure has tended to focus on the questions taken up by courts, the unfortunate result has been not just that judges have largely failed to consider the systemic requirements for democratic policing, but that most of the rest of us have, too.
None of this is to suggest that democratic theory and criminal procedure have had nothing to say to each other. It is just that the conversation has been largely below the surface.
This Article seeks to unearth half of that conversation: the changing ideas about American democracy that have informed the development of criminal procedure jurisprudence and scholarship over the past several decades. Those ideas, I hope to show, largely track, in a delayed fashion, developments in democratic theory over roughly the same period. The most important of these developments were, first, the emergence during the 1950s of the so-called "pluralist" theory of democracy, an unusually rich and resonant account that emphasized the roles of elites, interest groups, and competition in sustaining American democracy; and second, beginning in the 1960s, the gradual shift away from this theory and toward accounts of democracy emphasizing popular participation, community, and deliberation.
Arranging democratic theories on a timeline can be deceptive, because intellectual history is seldom tidy. The recent focus on the participative and deliberative dimensions of democracy harks back to eighteenth-century ideas that the democratic pluralists expressly repudiated, and pluralism itself is far from vanquished today. Like the just and unjust versions of Calvino's city of Berenice, ideas about democracy are all "present in this instant, wrapped one within the other, confined, crammed, inextricable." (22) In some critical respects, moreover, pluralism and its rivals converge; they share, in particular, a strong sense that democracy is more a matter of culture than of institutions.
Still, the simple story of pluralism's rise and fall holds enough truth to make it a helpful way to approach the complexities of democratic theory. The story is particularly useful because it finds its reflection in certain developments over the past several decades in criminal procedure jurisprudence and in scholarship about the police. The first aim of this Article is to trace these connections between democratic theory and criminal procedure. A second, broader goal is to use this excavated history, and the...