Terrorism, federalism, and police misconduct.

• Author: Stuntz, William J.
• Position: Responsibility for law enforcement

The defining characteristic of American criminal law enforcement -- the characteristic that most distinguishes it from law enforcement elsewhere in the developed world -- is its localism. There are approximately 800,000 police officers in the United States. (1) Over 660,000 of them work for local governments. (2) And personnel statistics understate the system's local tilt. There are approximately 50,000 federal criminal cases per year. (3) Criminal cases brought by local agencies each year number in the millions; (4) local district attorneys win about one million felony convictions per year. (5)

This imbalance is very much the historical norm. The federal government has never employed a sizable fraction of the nation's law enforcement officers or prosecutors, nor housed a large portion of its prisoners. While other traditional staples of local government -- poor relief, road construction, even to some degree primary and secondary education -- have migrated up the sovereignty ladder, with state and national budgets absorbing a much larger share of the burden of providing services over the past century, local governments have only tightened their hold on law enforcement. As Tom Stacy and Kim Dayton noted a few years ago, the federal share of law enforcement has steadily declined over the course of the past half-century (and the local share has steadily risen). (6) Try to think of another government activity about which one could say that.

In short, in the United States, two levels of government -- local and federal (the states do almost no criminal prosecution and very little policing) -- share the job of enforcing criminal law. But they do not share that job equally. Local governments dominate, more so than in any other sphere of governance or regulation. The federal government serves only as a backstop, and not a very important backstop at that.

That long-standing truth may be about to change, for reasons that go directly to the terrorist attacks on New York and Washington this past September 11. Not fundamentally: we are not about to create a federal law enforcement bureaucracy that can process millions of cases per year, nor are we likely to have a national police force that can assign officers to walk a beat in urban neighborhoods anytime soon. But real change is a real possibility. If it happens, the heart of the change will be this: Before last September, terrorism occupied a very small place in both politics and law enforcement; today and for some time to come, it is likely to occupy a large place -- not dominant, but large. And while the crimes terrorists commit are crimes under state and federal law alike, everyone assumes that the FBI's role in fighting terrorism will be primary, at least within America's borders. Local police departments will be (and already have been) powerfully affected. (7) But in this sphere, they are the backstop. The FBI is where the buck stops.

My goal in this brief Essay is to raise what might seem a minor question (at least, minor compared with the questions discussed elsewhere in this Special Issue): what might that change mean for the level of police misconduct in the United States? We have a large body of law devoted to policing the police, along with a large body of literature devoted to theorizing about police misbehavior and what the law can do about it. Both the law and the theory have focused almost exclusively on local police. In a society where local policing dominates criminal law enforcement, that is as it should be. But the fight against terrorism is likely to chip away at that dominance. It is worth thinking about what that development might mean for legal regulation of those who enforce the criminal law. Which in turn depends on what more federal power will mean for the amount of abusive behavior by law enforcers.

At first blush, more federal power in this area would seem to be a piece of very good news. We are used to thinking of the federal legal system as better, in all respects, than its state and local counterparts. A generation ago, changes in constitutional law that gave federal judges much more power relative to state judges were widely seen as an advance for the quality of justice in America. (8) So it seems natural to think that giving the FBI more power relative to local police departments would tend to lessen the level and seriousness of law enforcement misconduct.

Actually, the picture is a good deal more complicated. When it comes to minimizing misbehavior, local police departments have two large advantages. First, they are democratic. Second, they operate under severe resource constraints. The first characteristic means that local police are not likely to abuse people in ways most of the citizenry finds objectionable. (It also means they are likely to abuse people in ways most of the citizenry finds attractive). The second means that local police do not have time to harass people for fun or out of spite -- these things can of course happen, but they are not likely to happen often. The FBI has neither characteristic and hence neither advantage. Shifting power to the FBI, while leaving the rest of the system untouched, might make law enforcement both less accountable and more prone to go off on abusive larks. But antiterrorism work has several features that may cut against these tendencies. If so, this particular change in the federal local allocation of power may raise the level of accountability and responsibility in law enforcement, not lower it.

Part I of this Essay describes the basic advantages and disadvantages of local and federal police in terms of preventing police misconduct. Part II discusses the features of antiterrorism work that might bear on the issue. Part III concludes.

1. FEDERALISM AND POLICE MISCONDUCT

   It is best to begin with why the issue matters. Legal regulation of police in the United States is mostly ineffective. Not that American police are more violent, corrupt, or abusive than their counterparts around the world -- we do not know enough to make good comparisons, but the likelihood is that police here are better behaved than most of their counterparts around the world. Rather, the point is that legal regulation has only marginally positive effects. In part this is because the law is filled with bad substantive rules; were the law better, its effect on police conduct would likewise be better. That could, of course, be fixed. The deeper, harder-to-fix problem stems from the limits of legal remedies. The exclusionary rule deters only those illegal searches and seizures aimed at gathering evidence for later use in court. Most police misconduct does not fit that description. Damages liability is a more serious threat, but only when officers are dealing with someone who is likely to be attractive to a jury -- a characteristic that most targets of police attention do not have. (9) Injunctions would be more effective, but enjoining police departments has been, until very recently, a practical impossibility. (10) All of which means that the law's positive effects are bound to be small. The larger factors that shape police behavior -- and misbehavior -- are more structural: police culture, politics, institutional design, and the like. Hence the importance of the question whether local dominance makes for better- or worse-behaved police.

   There are three main reasons for thinking the right answer is "worse." Corruption has long been a problem for local police departments; much less so for federal agents. (11) Shifting power from localities to the national government would likely be pure gain in terms of minimizing graft and other gross forms of dishonesty. The second reason involves a...