POLICING FOR PROFIT: HOW URBAN MUNICIPALITIES' FOCUS ON REVENUE HAS UNDERMINED LAW ENFORCEMENT LEGITIMACY.

• Author: McBride, Robert A.

1. INTRODUCTION

   Today's modern police force has deep roots in the Anglo-American tradition, dating back to the sheriffs of the English shires. (1) The duties and functions of modern law enforcement, however, differ greatly from their medieval counterparts. (2) The evolution of law enforcement functions can be directly traced to the rise of the progressive administrative state and the proliferation of literally countless laws, regulations, and ordinances at the federal, state, and local levels. (3) No longer merely keepers of the peace, (4) today's police officers are tasked with innumerable duties (5)--some, contradictory with each other. (6) Nowhere can these contradictions be more acutely felt than on the street, where officers first interact with the members of the community they have ostensibly sworn to protect and serve. (7)

   To many people, police officers are the face of the municipal administrative state. (8) They are representatives of the mostly-unseen bureaucracy that orders and directs their lives. While citizens sporadically interact with other municipal entities (annually with the DMV, for example), they see the police patrolling their communities on an almost daily basis. (9) More importantly, those officers wield the power to stop them on the barest suspicion of wrongdoing, (10) temporarily detain them, search them, seize their property, (11) and even arrest them for trivial offenses. (12) It is crucial to the functioning of an ordered society that the citizenry perceives the application of that police power as legitimate. (13) If, however, community perception is the police power is being used for illegitimate purposes, faith and trust in officers that exercise that power would be undermined and their ability to perform their legitimate functions would be stymied. (14)

   Across America, many municipalities have discovered that law enforcement can be a lucrative business. (15) Some derive a significant percentage of their operating budgets from tickets, citations, fines, and court fees. (16) Some municipalities have even tied their law enforcement agency budgets to the revenue generated from such sources. (17) In addition to ticket revenue, police departments profit from civil asset forfeiture, a process whereby police are able to seize cash and property without proving a crime has actually occurred. (18) The process is so lucrative, a substantial number of police agencies are dependent on revenues from it. (19)

   These practices have the effect of creating a perverse incentive among such agencies to write more citations and make more stops in order to boost their budgets. (20) The natural consequence of this practice is to alter the community perception of the police officer from a keeper of the peace to an oppressor of liberties. (21) Hence, municipal and law enforcement focus on revenue generation ultimately delegitimizes the authority of the police in the eyes of the community and destroys their ability to effectively perform their essential duties. (22)

   Revenue collection is fundamentally incompatible with traditional law enforcement functions. It distorts the focus and priorities of officers away from community safety. (23) It interferes with the ability of police officers to ensure the safety and security of the communities they serve. (24) Further, such practices raise serious constitutional issues. (25) Such practices have led to violent confrontations between law enforcement and the public. As part of the larger national dialog on community policing, policy-makers must give attention to how police forces are funded and how an emphasis on revenue collection interferes with police effectiveness. Money, as they say, is at the root of this evil (26) and only by either prohibiting or seriously curtailing the practice of using fines, court fees, and asset forfeitures to fund municipal governments and police departments will reforms--which are fundamental to restoring police legitimacy in the communities they serve--take root.

2. THE HISTORICAL ROLE OF POLICE

   1. Police as Peace Officers

      The origins of our modern police force can trace their roots to the sheriffs of early medieval England. (27) Under the common law, the powers of the sheriff fell into one of four categories, either as: a judge; a keeper of the king's peace; an officer of the court; or the king's bailiff. (28) Early criminal laws were far fewer than today and only serious crimes were considered felonies and subject to harsh punishment. (29) The sheriff, acting under the authority of the king, was the primary enforcer of the criminal law. (30) The concept of a constabulary, or custodies pads (31) appointed by the local baron was established in England as early as 1233. (32) The baronial keeper of the peace, was primarily responsible for maintaining peace and public order by detaining law-breakers and keeping watch against insurrection and invasion. (33) Gradually, through an informal and ad hoc process, constables acquired law enforcement duties similar to sheriffs but remained accountable to and funded by the local government. (34) When the American Colonies were established, the English model of county sheriff and village constabulary were imported along with the common law. (35) While the common law continued to evolve, that which constituted a criminal act changed little until the Industrial Revolution and the rise of Progressivism. (36) Fundamental changes to the criminal law shifted the priorities of law enforcement away from simply maintaining public peace and order and toward enforcing an ever-expanding corpus of criminal statutes. (37)

   2. Evolving Concepts of Criminal Law

      In tracing the evolution of modern police priorities and practices, it is necessary to briefly delineate the history of criminal law in Anglo-American jurisprudence. This is a necessary prerequisite because what constitutes a crime and what are the purposes of criminal laws has changed over time, and those changes have directly impacted the responsibilities of police and the methods by which they execute those duties.

      Medieval English criminal law imposed strict liability for acts, attaching criminal liability regardless of motive or intent. (38) The rediscovery during the early Renaissance of Roman legal texts which emphasized moral guilt, or culpa, began to influence English legal thinking. (39) English criminal law focused increasingly on the criminal's state of mind. English jurists gradually recognized a requirement for a culpable intent in order to convict a person of a felony. (40) The concept of mens rea as an element of every crime was well established in the common law by the Enlightenment period. (41)

      By the late nineteenth century, the rapid urbanization of society due to the Industrial Revolution forced the criminal law in another direction. (42) The human achievements and societal advances born of the Industrial Revolution convinced many that not only was it possible to perfect society, but that it was inevitable. (43) Modern social philosophers believed that, in this inevitable march of progress, the individual good must give way to the collective good. (44) Those who opposed change would be marginalized. (45) To Utilitarians, this idea of perfecting society involved maximizing the effectiveness, or utility, (46) of every aspect of society--including the criminal law. (47) Progressives believed intelligent men could codify the law into a perfect model code. (48) They viewed individual liberties as secondary to the greater good and saw the criminal law as a tool to alter and shape human behavior in order to create a "good society." (49) The result was a proliferation of laws, statutes, and ordnances regulating every conceivable aspect of daily life. (50)

      Many of these new laws were characterized as public-welfare offenses and were an exception to the mens rea principle. (51) Rather than punish conduct seen by the community as morally blameworthy and in need of condemnation, criminal liability attached to minor violations of various acts or omissions that lawmakers determined endangered the public health, safety, or welfare. (52) Courts justified the public-welfare exception by noting such offenses received only a relatively light penalty, usually just a fine, and did not carry with them any threat of imprisonment. (53) The imposition of strict liability was necessary if intelligent men in government were to mold society into a more perfect form. (54)

      A subset of these new, malum prohibitum laws--important for its impact on community policing--is the regulation of controlled substances. Prior to 1914, narcotics were unregulated in America. The first laws passed by Congress were focused more on marketing and taxation. (55) Prosecutions occurred only where prescribing physicians acted outside the bounds of professional practice. (56) With the passage of the Comprehensive Drug Abuse and Prevention Act in 1970, the mere possession of a wide variety of controlled substances became, essentially, malum in se and the federal government empowered local law enforcement agencies to take the war on drugs to their neighborhoods. (57) To entice their cooperation, the federal government authorized police to civilly seize any property involved in a federal crime. (58)

      The proliferation of statutes which impose criminal liabilities for heretofore non-criminal acts has created a problem for our criminal justice system. Despite the best efforts of enlightened legislators, no law can be crafted which can be mechanically applied to the wide variety of situations which law enforcement regularly face. (59) Nor can officers be expected to intercede in every single violation of law they witness. Consequently, legislators expect, and reality demands, that law enforcement officers exercise good judgment and sound discretion in enforcing the menagerie of federal, state, and local laws on the books. (60) If part of an officer's decision process for deciding...