TABLE OF CONTENTS INTRODUCTION 305 I. THE PROCESS-THEORY DIVIDE 310 II. CRIMINALIZATION AND ENFORCEMENT 319 III. CONDITIONS FOR PUNISHMENT 329 CONCLUSION 333 INTRODUCTION
A line can separate, or it can connect. The contemporary police force is sometimes characterized as "the thin blue line" separating civil order from violent anarchy. (1) In various ways, though, the police also connect civility to violence. Force is always at the background of police action, so much so that classic sociological descriptions of the police focus on their authority and readiness to use physical force. (2) If actual incidents of police force seem the exception rather than the rule, that perception is due in part to efforts to narrow the definition of force in the context of policing, excluding ordinary tactics like the use of handcuffs. (3) Whatever acts the law labels as force or violence, there should be little doubt that police secure order through threats of superior physical force, and at least sometimes, actual exercises of it. (4)
The thin blue line is a link rather than a divider in another important sense, too. Police connect crimes to punishments: they detect and investigate and sometimes even facilitate offenses; they identify and arrest suspects. Through these activities, police supply prosecutors, courts, and eventually prisons with persons to punish. (5) Policing is central to the operation of the modern criminal law, and yet, it has long been almost entirely ignored by criminal law theorists. (6)
That inattention would be regrettable at any moment, but it is especially troubling at this particular historical juncture. American criminal law broadly, and American policing specifically, face a legitimacy crisis. (7) Mass incarceration, profound racial and socioeconomic disparities, and the burdens of criminal records and collateral consequences, together with high-profile and seemingly unnecessary uses of force by police officers, have prompted deep criticisms from across the political spectrum. At the same time, reform has been elusive. (9) Never has it been more urgent to develop normative frameworks to evaluate and inform criminal justice policies. And yet, the philosophy of criminal law has remained narrowly focused on a few questions, and answers, that arose long before the development of the modern police force and long before the current crisis of criminal justice. (10)
What are these traditional questions, and familiar answers, that continue to claim scholars' attention? What is the subject of criminal law theory, if not the arc from crime to punishment? It is risky to make generalizations about such an expansive field of study, but I think it is fair to say that criminal law theory tends to focus on either crimes or punishments in two mostly independent inquiries. About crime, scholars ponder principles of criminalization, general rules of liability, and specific definitions of offenses and defenses. (11) About punishment, the usual questions are ones of normative justification: when and how much is punishment justified? (12) Notably, state agents are mostly absent from both kinds of inquiries. Of course, the criminal law theorist hopes that wise legislators will heed his principles of criminalization and that wise sentencers will heed his advice on just punishment. But the agent at the center of most theories of criminalization and most theories of punishment is not a public official, but the wrongdoer: criminal law theory tends to focus on the private actor and ask when his acts should be criminalized and how they should be punished. (13) Note the passive voice: it is the voice in which criminal law theory all too often speaks. (14)
In order for a crime to be punished, of course, it must be detected, investigated, and prosecuted. Or, to rephrase without the passive voice: in order for the state to punish conduct that it has defined as criminal, public agents must detect, investigate, and prosecute the criminal conduct. Those actions we call the criminal process, usually distinguishing between the investigative process, where police are the most important agents of the state, and the adjudicative process, where prosecutors and judges are the central agents. (15) In legal scholarship (and in the standard law school curriculum), substantive criminal law, investigative procedure, and adjudicative procedure are treated as three separate fields. To the extent that philosophers of criminal law have addressed procedural questions, they have usually focused on adjudicative procedure rather than investigative policing. (16) But by and large, even the inquiries into adjudicative procedure are marginal discussions, and criminal law theory focuses primarily on the substantive criminal law. Philosophers, in short, have had relatively little to say about what transpires in the days (or months or years) that pass between the commission of an offense and the eventual imposition of punishment.
This Article argues for, and begins to develop, a new and more holistic approach to criminal law theory. My claim is not simply that those interested in the philosophy of criminal law should add a new project--theories of policing--to their endeavors. (17) Instead, I suggest that policing and the law of investigative procedure are central (but too often ignored) components of the things that criminal law theorists already study: crimes and punishments. An adequate philosophical account of principles of criminalization must include enforcement considerations: what powers do we give law enforcement officials by criminalizing a given type of conduct? Regrettably, theorists have treated the question of what should be criminal as a question about what conduct is blameworthy, or what conduct we would like to wish out of existence. But the criminal law is not a "magic wand," as Doug Husak has put it; it doesn't make harmful or wrongful conduct disappear. (18) To criminalize is to authorize state agents to use force and coercion against persons suspected or convicted of the prohibited conduct, and a theory of criminalization must evaluate the role of these official enforcers.
Similarly, an adequate philosophical defense of punishment must address the enforcement process that brings a suspect to his punishers. To evaluate the legitimacy of punishment for a given defendant, we must ask not just what the defendant has done, but also whether the state has identified, prosecuted, and convicted the defendant within the bounds of legitimate state power. The constable's blunder, in other words, may well be grounds for the criminal to go free. (19) But to see that principle (or even to argue against it), criminal law theory must follow the thin blue line.
Part I of this Article explores briefly the intellectual division of labor that has isolated the study of procedure from the philosophy of criminal law. Part of the problem, I suggest, has been inadequate attention to the state and the various state actors that make punishment happen. The Article then elaborates on some specific implications of a more integrated approach that places criminal law in political context, in part by drawing upon political theory and its analysis of state institutions. Part II argues that consideration of police authority is essential to principles of criminalization. For example, a great deal of currently prohibited conduct should probably be decriminalized because the costs of enforcement are too high. Part III examines the relationship between police authority and punishment theory. When punishment theory focuses on the state as the agent of punishment, rather than looking only at the target of punishment--the criminal--it becomes clear that rules of investigative procedure, like the requirements of legality or fair trial or proof beyond a reasonable doubt, serve as conditions for legitimate punishment. (20)
The philosophy of criminal law could, and should, be far more relevant to twenty-first century discussions of overcriminalization, mass incarceration, police violence, racial bias, and the possibilities for reform. I suspect that the particular implications addressed in this essay are but a sample of the new directions criminal law theorists could take, if they would be honest about the institutions they are supposedly theorizing. Criminal law is not self-executing. (21) It does not operate independently of its enforcers, and so the theorist of criminal law must address the agents and practices of law enforcement.
THE PROCESS-THEORY DIVIDE
Whether criminal law theory neglects policing or other aspects of the criminal process depends, of course, on what counts as criminal law theory. The participants in the field have tended to frame their inquiries broadly. (22) Much of the work in this field is philosophical, in that it employs the conceptual and analytical approaches of philosophy, but a doctorate in philosophy is hardly a requirement. In a typically inclusive characterization, Nicola Lacey defined criminal law theory as "any relatively systematic attempt to explicate the social institution of criminal law." (23) The relationship between criminal law doctrine and criminal law theory is complex: theorists often seek to explain or evaluate existing doctrinal rules, but they usually address general principles and broad concepts rather than the minutiae of positive law in a given jurisdiction. The field of criminal law theory includes, in Lacey's elaboration,
not only work focused on the structure of the criminal law doctrine but also work addressed to the broader questions of criminalisation and penality; the actual or proper subject matter of criminal law and its classification; the role of the state in drawing on its power to criminalise; the justification for state punishment in general or in its particular forms. (24) Notably absent from Lacey's list (which is unusually and perhaps unduly generous in its identification of inquiries into the...