Traffic Without the Police.

• Author: Woods, Jordan Blair

Table of Contents Introduction I. The State of Traffic Policing in the United States II. A New Framework for Traffic Enforcement A. Removing Police from Traffic Enforcement 1. Prohibited stops a. Routine traffic stops based on minor traffic violations b. Pretextual traffic stops 2. Permitted stops a. Stops based on outstanding felony warrants b. Felony vehicle stops c. Stops based on a narrow set of serious traffic offenses B. Nonpolice Alternatives to Traffic Enforcement 1. The creation of traffic agencies and traffic monitors 2. In-person traffic stops a. Routine traffic stops based on minor traffic violations b. More difficult traffic stops that could allow police collaboration c. Stops involving nontraffic crime d. Driver noncompliance 3. Automated traffic enforcement 4. Training and oversight C. Additional Reforms 1. Reevaluating traffic codes 2. Reducing financial and professional incentives for biased and aggressive traffic enforcement a. Financial incentives b. Professional incentives III. The Benefits of Traffic Enforcement Without the Police A. Policing 1. Fairness and equality in policing 2. Escalation during police-civilian encounters 3. Public perceptions of police 4. Scope of the police function B. Criminal-Law and Criminal-Justice Reform 1. Decriminalization of minor traffic offenses 2. Driver's license offenses 3. Driving under the influence 4. Outstanding warrants for nonviolent offenses IV. Potential Objections A. Traffic Safety B. Policing 1. Discovering evidence of crime and apprehending criminal suspects 2. Criminal deterrence C. Financial Considerations D. Police Unions Conclusion Introduction

Traffic stops are the most common interaction between police and civilians today, (1) and they are a persistent source of racial and economic injustice. (2) Several studies show that Black and Latinx motorists in particular are disproportionately stopped by police for traffic violations and disproportionately questioned, frisked, searched, cited, and arrested during traffic stops. (3) Many of these stops and intrusions are pretextual, enable police mistreatment and abuse, (4) and cause traffic stops to be humiliating and frightening experiences for people of color. (5) Traffic enforcement has historically served and still functions as a gateway for funneling civilians, and especially Black and Latinx motorists, into the criminal-justice system. (6) Heavy reliance on traffic-ticket revenue to fund state and local budgets, and the use of traffic-stop rates as a measure of officer performance, only encourages these injustices. (7)

Piecemeal constitutional and statutory interventions that attempt to limit aspects of police authority during traffic stops are insufficient to address systemic racial and economic injustices in traffic policing. (8) Rather, these problems necessitate structural police reform and require a fundamental rethinking of the role of police in the traffic space. Traffic enforcement and policing are so intertwined, however, that it is difficult to imagine a world of traffic without the police. (9) Illustrating this point is one of the common critiques lodged against the growing movement to defund the police: "Who would enforce traffic laws?" (10)

We are at a watershed moment in which growing national protest and public outcry over police injustice and brutality, especially against people of color, are animating new meanings of public safety and new proposals for structural police reforms. (11) In this environment, there is increasing momentum for rethinking police involvement in the traffic space. (12) This momentum has already brought about concrete changes: At least one municipality has decided to remove police from traffic enforcement. In July 2020, the city of Berkeley, California, voted in favor of a proposal that, as part of a comprehensive plan to achieve structural police reform, would make it the first municipality in the country to remove police from traffic stops. (13) Under this proposal, the city would create a department of transportation staffed by unarmed civil servants who would be in charge of enforcing traffic laws. (14) Other municipalities are considering similar reforms that would remove police from traffic enforcement to varying degrees. (15)

This Article challenges the conventional wisdom that traffic enforcement is impossible without the police and, in so doing, illustrates why the public should welcome major changes in line with Berkeley's approach. Although scholars have identified a need to rethink the role of police in the traffic domain and have discussed specific ideas for reform, (16) this Article makes an important contribution to the literature by articulating a sharpened and comprehensive legal framework for removing the police from traffic enforcement. (17) The analysis provides a starting point for renewed thinking about the basic organization of traffic enforcement, the role of police in traffic enforcement, and the means by which law and policy can be used as tools to achieve fairness and equality in traffic enforcement. As this Article explains, removing police from traffic enforcement would help to achieve this fairness and equality, especially for people of color and other marginalized communities vulnerable to overpolicing and overcriminalization in today's driving regime. (18)

The core ideas in this Article connect to growing public and scholarly debates about the proper role of police and the scope of the police function. (19) As sociologist Alex Vitale has explained, "[t]he origins and function of the police are intimately tied to the management of inequalities of race and class." (20) Society currently relies on police to perform a wide range of duties that includes conducting criminal investigations, preventing and deterring crime, conducting accident investigations, handling traffic enforcement and control, providing social services, and responding to emergency and nonemergency civilian complaints. (21) More often than not, police spend their time responding to incidents that do not involve violent crime. (22) One recent report revealed that police officers in New Orleans, Sacramento, and Montgomery County, Maryland, spend only about 4% of their time on violent crimes, compared to roughly 5096 on noncriminal complaints, noncriminal disturbances, and traffic accidents. (23)

Scholars and commentators argue that society places too much responsibility on the police and vests too much power in officers to perform social functions. (24) In the growing movement to defund the police, advocates emphasize that successful police reform would not only entail scaling down police budgets but also require reevaluating what exactly police do. (25) Given the centrality of traffic in policing (26) removing police from traffic enforcement is a critical part of these conversations.

Part II articulates a framework through which jurisdictions would redelegate the bulk of traffic enforcement to newly created public agencies (which I call traffic agencies). Traffic agencies would operate wholly independently of the police and hire their own public employees (whom I call traffic monitors) to conduct and oversee traffic enforcement. Traffic monitors would enforce routine traffic laws through in-person traffic stops (27) and handle all aspects of traffic enforcement that jurisdictions decide to automate. (28) To the extent that exceptions must be made, police would be allowed to conduct traffic stops only for a narrow set of serious traffic violations that clearly involve criminality or an actual or imminent threat of harm to others (for instance, driving a stolen vehicle, hit-and-run offenses, or vehicle racing). (29) To achieve fairness and equality in traffic enforcement, the framework includes two additional law and policy reforms: (1) reevaluating the breadth and imprecision of traffic codes so that traffic law and enforcement focuses only on driving behaviors that pose an imminent public-safety threat, and (2) reducing financial and professional incentives that contribute to aggressive and biased traffic enforcement (namely, restructuring traffic fines and fees systems and prohibiting the use of traffic-ticket issuances as a measure of professional performance). (30)

As Part III explains, removing police from traffic enforcement has significant potential benefits for public safety, policing, and criminal-law and criminal-justice reform. This Part examines four specific benefits for policing: (1) improving fairness and equality in policing, (2) preventing escalation during police-civilian encounters, (3) improving public perceptions of the police, and (4) increasing police effectiveness though limiting the scope of the police function. (31) Part III also explains how removing the police from traffic enforcement would strengthen criminal-law and criminal-justice reforms designed to address problems associated with the criminalization of traffic offenses. (32) These potential benefits would do much to address persistent injustices in traffic enforcement and policing that disproportionately harm communities of color and other marginalized communities vulnerable to overpolicing and overcriminalization. (33)

Part IV addresses potential objections. It first takes on substantive criticisms that removing the police from traffic enforcement would undermine traffic safety, criminal investigations, and criminal deterrence. (34) It then addresses the financial practicalities of removing the police from traffic enforcement. (35) Although these concerns are not entirely without merit, they do not tip the balance in favor of keeping traffic enforcement in the hands of the police.

To summarize, this Article proceeds as follows. Part I provides an overview of the state of traffic policing in the United States, which underscores the need for structural police reforms in the area of traffic enforcement. Part II articulates a new legal framework that decouples...