Police departments have broad policymaking discretion to arrest some offenders and permit others to engage in criminal misconduct. The way police departments exercise this discretion has harmful distributive consequences. Yet, courts do virtually nothing to constrain departmental discretion. This is because constitutional criminal procedure is preoccupied with individual officer discretion and assumes that the most significant decision moment an officer faces is distinguishing guilt from innocence. I argue that this framing obscures the vast policymaking discretion police departments wield and the central choice they confront: distinguishing among the guilty. This Article identifies the mechanics and anti-egalitarian consequences of departmental discretion. Departmental discretion has three dimensions: geographic deployment, enforcement priority, and enforcement tactics. Through these policy choices, police departments are able to distribute the costs and benefits of proactive policing within jurisdictions. Case studies of narcotics enforcement and quality-of-life policing concretely demonstrate how departmental choices create inegalitarian distributive consequences. I argue that courts and other public institutions ought to prevent such consequences. This prescription requires conceptualizing arrests, and proactive policing more generally, in terms of distributive justice. Unlike dominant theories of criminal enforcement, distributive justice offers a normative vision that privileges democratic equality. Distributive justice suggests that, for crimes that are subject to proactive policing, probable cause alone should not justify arrest. Rather, police departments should also be required to demonstrate that a given arrest is part of an egalitarian distribution of arrests.
Courts imagine police discretion in terms of the decisionmaking latitude that individual officers enjoy. (1) Officers make choices about whom to stop, search, and arrest. Constitutional criminal procedure attempts to regulate how officers make those choices by prescribing the quantum of information they must possess regarding a suspect's likely guilt before they may intrude upon her privacy or liberty. (2) In other words, the judicial approach to police discretion assumes that individual officers are the principal discretion-wielding actors in policing and that the central problem they confront is distinguishing the guilty from the innocent. From this perspective, it follows that any arrest supported by probable cause is a legitimate one. (3)
This Article critiques the narrowly individualistic conception of police discretion that predominates in law, scholarship, and public discourse. (4) Casting the individual officer as the central discretion-wielding agent in policing obfuscates the arrest's role as a policymaking device with broad distributive consequences. If law is to ensure an egalitarian arrest distribution it should treat police departments, not officers, as the primary discretion-wielding actors. Modern police departments exert high degrees of control over individual officers and rely heavily on arrest as an enforcement strategy. The central problem confronting police departments is not distinguishing the guilty from the innocent, but rather distinguishing among the guilty. Police departments--i.e., administrators and policymakers--regularly choose to target some offenders and to let others engage in comparable criminal activity without consequence. This is most true in the "proactive policing" context, where the police themselves (as opposed to a victim or some other witness) identify criminal misconduct. Because criminal procedure is hushed about departmental discretion and because retributive, expressivist, and utilitarian theories dominate scholarly discussion of the criminal sanction, departmental discretion is under theorized in legal scholarship. This Article describes departmental discretion's mechanics and anti-egalitarian consequences. It then sketches a normative vision for regulating departmental discretion relying on distributive justice theory.
I argue that three dimensions of departmental discretion bear on how proactive policing arrests are distributed across a jurisdiction: geographic deployment, enforcement priority, and enforcement tactics. How different groups bear the costs and benefits of arrests within a jurisdiction raises serious questions of democratic fairness. For example, narcotics enforcement has swelled America's prison populations with poor men of color. (5) The pool of prospective narcotics offenders in a given city will typically be larger than could ever be arrested with complete enforcement. Offenders' demographic profile will depend on where in a city police target--e.g., the race and class profile of narcotics offenders at an elite, liberal arts college on the urban periphery might be different from that of narcotics offenders in working class neighborhoods closer to the urban core. Departmental choices about geographic deployment, enforcement priority, and enforcement tactics determine whether and how these areas are targeted. (6) I argue that police departments tend to make such choices in a manner that generates unjustified inequality.
Normatively, I argue that courts and scholars should conceptualize arrests, and proactive policing more generally, as a distributive good. Criminal enforcement's moral legitimacy is typically grounded in retributive, expressivist, or utilitarian theories. These theories offer little guidance on how to accommodate egalitarianism in proactive policing. On the other hand, distributive justice's central preoccupation is with how political institutions in a liberal democracy should achieve an egalitarian distribution of the benefits and burdens that collective political existence generates. (7) Distributive justice animates discussions in various policy contexts and I argue that the same should be true for police department discretion. That discretion is most pronounced in the proactive policing context where there are few legal or political checks on departmental discretion. Distributive justice suggests that the mere fact of a criminal law violation is insufficient to legitimate proactive policing arrests. The costs and benefits of arrest distribution, just as with other policy choices, should be shared equally amongst all communities within a jurisdiction. Distributive justice principles also dovetail with a representation reinforcing theory of judicial review. In tandem, the two suggest a much more active role for courts in constraining police departments' discretion to ration arrests.
The Article proceeds in three parts. Part II demonstrates how scholars and courts have addressed the police "discretion problem." Legal scholars have not systematically accounted for how departmental discretion operates. This is unsurprising given that constitutional criminal procedure has narrowly conceptualized police discretion in terms of individual officers' assessments of individual suspects' likely guilt. Part III argues that departmental policies regarding geographic deployment, enforcement priority, and enforcement tactics drive proactive policing's anti-egalitarian consequences. Case studies on narcotics enforcement and quality-of-life policing demonstrate departmental choices' salience in producing inequality. Part IV evaluates departmental discretion through the lens of distributive justice and concludes that where popular politics is unable to prevent the unequal distribution of proactive policing arrests, courts should do so.
THE "DISCRETION PROBLEM"
Scholars and courts tend to localize the "discretion problem" to the moments leading up to and during contact between individual officers and civilians. This conceptualization decouples police discretion from distributive justice--most significantly, it avoids the question of whether arrest policies' benefits and burdens are fairly distributed across a jurisdiction. (8) This Section accounts for the decoupling. It begins with scholars rather than courts. It was scholars, beginning in the late 1950s, who identified a "discretion problem." They suggested that police departments delegated excess policymaking discretion to individual officers and those officers, in turn, used that discretion inconsistently if not abusively. Courts and more recent scholarship have continued to echo that conceptualization.
THE "DISCOVERY" OF POLICE DISCRETION Scholars "discovered" the discretion problem in the 1950s. (9) In 1956, the American Bar Foundation (ABF) issued a report concluding that considerable discretion existed in policing. (10) "Discovery" is a curious metaphor for describing an endemic feature of policing. But, prior to the ABF report, scholars and lawyers tended to embrace the mythology of "complete enforcement"--i.e., the notion that police attempt to apprehend each and every violator of the criminal code. (11) For early law and society scholars, the discretion problem brought the disjuncture between law and social practice into stark relief. Early discretion scholars problematized the disjuncture at its most primary level: the individual officer.
Early discretion scholars cast the discretion problem in terms of an inverted pyramid. Ordinarily, one would expect the most senior members of a governmental institution to enjoy the greatest discretion. In police departments, early police scholars contended, discretionary latitude appeared to increase down the line of command. (12) Kenneth Culp Davis argued that this, in effect, rendered individual patrol officers "policy makers" for their beats. (13) Davis noted that many police departments did not have policy manuals at all and, for those that did, the manuals said nothing about enforcement priorities. (14) Taking cover under the rhetorical blanket of "full enforcement," police department administrators deferred almost completely to patrolmen...