The good cop: knowing the difference between lawful or effective policing and rightful policing - and why it matters.

• Author: Meares, Tracey L.

INTRODUCTION

There are two dominant ways to evaluate the police. The first is whether their conduct comports with the law. The second approach assesses whether they are effective crime fighters. (1) The legal domain is the province of lawyers and law professors. Their briefs and scholarly writings depend usually on interpretations of constitutional law and assessments of police conduct with reference to that law. Sometimes other bodies of law, such as police agency administrative regulations, civil lawsuits, or the very law that authorizes police to act in the first place--substantive criminal law--are the subject. But the assumption no matter the body of law is that more lawfulness is the ideal goal. Effectiveness at crime fighting has become the other police evaluation metric. This yardstick is of newer vintage than lawfulness, and those who wield it are primarily social scientists--criminologists and economists --who attempt to find causal connections between various police practices and crime statistics. The theoretical model these social scientists employ typically assumes that offenders are rational actors who are persuaded to desist from criminal behavior when the prospect of formal punishment outweighs the benefits of criminal behavior.

This Essay will present a third view called "rightful policing." Rightful policing attempts to account for what people say that they care about when assessing police agent behavior specifically and police agencies in general. It is different from lawful policing and efficient policing in at least two ways. First, rightful policing does not depend on the actual lawfulness of police conduct. Instead, rightful policing depends primarily on the procedural justice or fairness of police conduct. Second, rightful policing does not depend on an assessment of police as ever more effective crime fighters, although it turns out that rightful policing often leads to more compliance with the law and therefore lower crime rates. Additionally, and critically, it is likely this third way helps us move toward police governance that is substantially, as opposed to rhetorically, democratic.

My Essay will proceed in four parts. First, I will lay out the two often-used metrics of police evaluation, lawfulness and crime-fighting effectiveness. Next, I will explain the theoretical foundation underlying the third way, which is what I am calling rightful policing. In the third Section, I will present an overview of empirical work that I have done in collaboration with my colleague, Tom Tyler, and others. This work demonstrates that ordinary people care a great deal about the theoretical precepts underlying rightful policing. In the Essay's last Section, I will conclude with some implications of both the theory and the empirical results for governing police in a way that is meaningfully democratic. In short, I will sketch out what it could mean to produce the Good Cop.

1. TWO VIEWS: MORE LAW OR LESS CRIME? NEVER THE TWAIN SHALL MEET

   I begin with Weber, who famously said the state is the entity that "upholds a claim to the monopoly of the legitimate use of physical force in the enforcement of its order." (2) Law, then, is what legitimizes Weberian policing. That law authorizes, circumscribes, and shapes police activity is what distinguishes police from vigilantes. According to this view, evaluating policing with reference to its lawfulness is one of the most important aspects of democratic society. (3)

   Law suffuses policing. As Rachel Harmon of the University of Virginia has pointed out recently, the laws that regulate police conduct vary from international treaties to federal statutory and constitutional law to state constitutions, statutes, and regulations. (4) There are local ordinances and internal department administrative regulations, too. And these bodies of law do not even encompass those rules providing for police qualification and training, those pertaining to police management and organization, and laws regarding access to information about the police. There has been very little scholarship about the vast majority of these laws. The reason is that when many people think about lawful police behavior, they are referring primarily to contemporary criminal procedure, a muscular body of interconnected doctrines that tell police when they can interact with suspects on the street, what procedures they must follow before searching or seizing someone, how interrogations must be conducted, and what kind of authority they have to maintain public order. (5) Much of this law specifies remedies for rule transgression. It is, in other words, primarily about redressing the illegitimate exercise of power.

   This last point is crucial. The dominant approach to thinking about police lawfulness is to assess it in terms of a trade-off between the risk of arbitrary or oppressive enforcement and individual rights. (6) The dominant approach does not usually focus on police effectiveness at reducing crime--a point to which I will return in a moment. Rather, the assessment of police in lawfulness terms almost always casts police as a necessary evil as opposed to a welcome utility or potentially critical mechanism for empowering communities in democratic terms. (7) In this world the ideal is always less policing.

   What are the implications of lawfulness as a yardstick? When lawyers, legal scholars, and criminal justice practitioners observe what they consider to be the overexercise of state power in the form of stops and arrests, they move quickly to describe the problem as a legal one. New York City (8) and Philadelphia (9) provide ready examples. Members of the lawfulness tribe typically frame their observations with respect to constitutional law to describe police transgressions. (10) Arrests and stops become problematic because

   they do not conform to the Fourth or sometimes Fifth Amendment principles that restrict and circumscribe these actions. If the constitutional violation is the problem, then the remedy, seemingly, is apparent. The architecture of law and rights both describes and solves problematic urban street policing.

   The realities of street policing, however, tend to defy description in legal terms--especially when the relevant legal rubric is heavily dependent on constitutional law. Although it is true that various bodies of law, constitutional law among them, shape policing authority, it is also true that the exercise of police power takes place largely at the discretion of individual police officers. This is a point Kenneth Culp Davis made famous decades ago, but scholars still are much too quick to ignore it. (11) Consider that most police officers work alone and not under the direct gaze of a supervisor. (12) Supervisors rarely have the opportunity to learn about an individual officer's eight-hour shift (during which the officer is heavily armed) except through the formal reports an officer fills out if he or she happens to make an arrest. And arrests themselves are relatively rare events. (13) Police deal more with criminal suspects, homeless individuals, drunks, and prostitutes in potentially troublesome situations than they do with "ordinary citizens," so neither the police nor those they encounter have particularly strong incentives to reveal very much about their encounters. This means opportunities for corruption are higher than they might otherwise be. (14) On top of all of this, it is difficult to punish police officers who violate because agencies in many municipalities are subject to strong union rules that tie the hands of those who manage street cops. (15) Broad discretion allows police to shape, redescribe, and recategorize situations and contexts in ways that defy strictly defined codes, so that attempts to specify strict rule compliance seem somewhat misfitting.

   Recently, the manner in which police manage their discretion has become a flashpoint in policing as departments have developed strategies based on the widespread use of stop-and-frisk approaches that bring officers into frequent contact with people on the street. (16) Increased police discretion has led to a series of public controversies over racial profiling, (17) zero-tolerance policing, (18) aggressive police stops, (19) and covert surveillance. (20) Police and political leaders have defended their actions as necessary to reduce violent crime in cities, (21) and their arguments bring me to the second oft-used approach to evaluating police: whether or not they are effective at reducing crime.

   Many readers might today take for granted the idea that police make a difference in crime rates, but this was not always so. The conventional wisdom, at least from the 1960s until the mid-1990s, was that police had very little impact on crime rates. David Bayley, in his 1994 book, Police for the Future, sums up this view nicely:

   The police do not prevent crime. This is one of the best kept secrets of modern life. Experts know it, the police know it, but the public does not know it. Yet the police pretend that they are society's best defense against crime and continually argue that if they are given more resources, especially personnel, they will be able to protect communities against crime. This is a myth. (22) The idea that police can do little to impact crime became entrenched among scholars following the 1967 groundbreaking report of the President's Commission on Law Enforcement and Administration of Justice: The Challenge of Crime in a Free Society. That report detailed the relationship between so-called root causes and crime. (23) If crime was rooted in poverty and deprivation, then what could police do to stop it? Of course, police could and should be responders for justice reasons. Offenders should be called to account for their behavior. But police fulfillment of that role did not necessarily lead to lower crime rates. (24) The view espoused in the Commission's report percolated for decades. (25) Scholars...