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Citation: 2 Criminology & Pub. Pol'y 133 2002-2003
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COMMENTARY
LAW
ENFORCEMENT
ND THE
RULE
OF
LAW:
S
THERE
TRADEOFF?
DAVID
H.
BAYLEY
State
University
of
New
York
at
Albany
ABSTRACT
This
essay assesses
whether
a strong
evidence-based
argument
can
be
made
to
support
the
proposition
that when
police
violate
the rule-of-
law they
do
more
harm
than good
with
respect
to their collective
as
well
as
personal
nterests. The
assessment
is
undertaken
to counter
the
common
presumption among
police officers
that circumstances
often
justify
cutting
legal corners in
the
interests
of public
safety.
The
essay
first examines
what
research
shows about
the facilitatorsof police
l w
breaking.
It then
examines seven
reasons
why
violating
the rule-of-law
works
against
the
instrumental
interests of the
police
themselves.
After
assessing
the
strength
of the evidence
against the
instrumental
benefit of
violating
the rule-of-law
suggestions
are
made
about
research
that
is
needed
to
make the case
more compelling.
In conclusion
the
essay
dis-
cusses
how
empirical
knowledge
might
be
most
productively used
to
change the
culture
of contemporary
policing.
KEYWORDS:
Police,
Civil Liberties,
Police
Effectiveness, Accountabil-
ity,
Police Integrity
The
public in
every
society worries
about the
integrity
of
its police.
Some
have
better reasons
for this than do
others.
But everywhere,
regard-
less
of the
objective incidence of
misbehavior,
people become
easily con-
cerned
that
the
police
do
not
abide
by the law
and
misuse
their
power
Bayley,
1996a).
At
the
same time,
it
is
my experience
that the
police in
every society
believe
that
they
must occasionally
cut legal corners
in order
to provide
effective protection to
that very
same public.
Among
police
there
is
a nearly
universal mindset
that
abiding
by the
rule-of-law
and
adhering to
recognized
standards
of
human rights
is sometimes
too restric-
tive, preventing
victims from
obtaining
justice,
allowing criminals
to
go
unpunished,
and
placing
society at
unacceptable
risk Crawshaw,
2000).
This
mindset of the police,
and the behavior
it engenders,
shows
up
in
a
number
of
ways. Police complain
almost everywhere
about the
uncertain-
ties
of criminal
justice
processing slipshod
prosecutions,
inept
and venal
judges,
unwilling
witnesses,
cumbersome
procedures,
and laws loaded
in
NUMBER
2002
PP
133 154
OLUME
2
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BAYLEY
favor of suspects. Police
are regularly accused, even
in countries
with
human rights records that are good by world standards, of engaging in
unjustified stops and seizures (Bayley, 1996a).
They have
been found
to
fabricate
evidence
and
testify falsely
in order
to
gain convictions. So
com-
mon
did these practices
seem to be in New
York
City recently
that the
Mollen Commission coined a new word
to
describe
them- testilying
(1994).
Complaints of excessive
use
of force ostensibly to control
crime are
also common
around
the
world, whether to
obtain confessions
from
unwilling suspects or to intimidate
would-be criminals (Bayley, 1996a).
Intimidation
is
especially disturbing
when it is
directed
at whole classes
of
individuals, as when police say that those
people only
understand force
or people
like
that
have to be taught respect
for
the
law.
Although
the
public
is
most concerned about dramatic
infringements of
the rule-of-law, such as brutality, planting
false
evidence, and lying in
courts
most
o
the liberties taken by police are more
mundane,
routinized,
and difficult to detect. For
example, a Texas police officer told
me how he
had developed a
challenge-proof method
for
stopping motorists on
suspi
cion, without a
shred
of probable cause.
After
stopping a car, he would
thump the left rear
fender
with his
hand
as he walked
up to
it.
If the driver
asked why the officer
had
stopped
him, the officer would say that the
left
rear taillight
was
not
working. If the driver
checked for himself,
which
was
unusual,
the officer would say that his thump
must have restored the
con-
nection and he
would advise the driver, in the
interest
of
safety, to
get
it
checked at a
service
station. Thus, an
illegal
stop could
be disguised
as
helpful
assistance.
The usual explanation
for such behavior is that the police do
not under-
stand what
is
right and
wrong; that
the
values
of
the police
need changing
to emphasize more scrupulous adherence
to law and to human rights
(Barker
and
Carter, 1986;
Klockars
et
al.,
2000; Skolnick and Fyfe,
1993).
It
follows,
then, that the solution
is
to raise the
normative
consciousness
of
the
police, to convince them that
they
have
a duty both to
uphold
the rule-
of-law and to provide public
safety. I
think this
diagnosis
is mistaken. The
problem is
not
normative, but cognitive. The
police generally
know what
behaviors are right and wrong. The problem
is that
they
believe that the
violation
of law and of human rights
is
sometimes
required
for
effective
law enforcement.
For example, a survey
undertaken
for the U.S. Depart-
ment
of Justice
found
that 43 of 925 officers randomly
selected
from
121
American
police departments thought that
always following the rules
is
not
compatible
with getting
the
job
done (Weisburd
et
al., 2000).
Let
it
be
said, however, that
57.2 disagreed. In
other words,
many
police
have
concluded, and are willing to
admit it to anonymous telephone surveyors,
that rigid adherence
to the
rule-of-law
is
sometimes contrary
to
their
responsibility to protect
communities effectively.
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COMMENTARY
If
my
thesis is
correct,
police
must
be
shown
that the
costs to them
of
violating
the
rule-of-law
are
greater
than
are
the benefits,
that
doing right
is not
only commendable
normatively,
but
also
furthers
their
own
collec-
tive self-interest
Mastrofski,
1999 .
Moral
exhortation
alone is unpersua-
sive bec use it
does
not
address
the
tradeoffs that police
are
convinced
they face. This
explains
why
in my
experience,
lecturing
to the
police
about human
rights is
met
with
palpable lack
of interest-eyelids
droop,
note-taking
stops, and
faces
become
wooden.
The police act
as if they
know
all
that, which
in many
cases is
true. The
problem
is
that
lectures
on
human rights
are
a necessary
but not sufficient
corrective
to the
dilemma
police
officers
face. What
is
needed
instead is
an
evidence-based
demon-
stration
that
rectitude
is useful
to the
police
in
fulfilling
their
mission of
preventing
and
controlling crime. This
sort
of
argument will get
their
attention.
Can this
be
done?
Is it
possible
to demonstrate
in
a
convincing
way that
the benefits from behaving
according
to
recognized
standards
of
human
rights
outweigh
the costs of
not doing
so? Can
the self-interest
of the
police be
harnessed to the
achievement
of more
scrupulous behavior?
The task
of this
paper is
to
explore
whether
a strong
case can
be
made
that
the effectiveness
of the police
will
be
better
served by
scrupulous
regard for
the
rule-of-law
rather
than selective
disregard
for
the rule-of-
law.
The
discussion
will
be
in two
parts:
first,
a
discussion
of
factors
that
contribute
to
the disregard for
the
rule-of-law
by
police
and, second,
an
examination
of
the
disadvantages
to police
of
disregarding
the rule-of-law.
REASONS
FOR
LAW-BREAKING
There are
at least
seven
factors that
encourage
police
officers to
violate
the rule-of-law
and human
rights.
PUBLIC SAFETY
Police
are part
of
the criminal
justice
system
whose
explicit purpose is to
control crime
through
deterrence,
that
is,
to catch
and punish
people who
violate the
law.
Despite
slogans
about serving
and protecting,
the
essential
mission
of the police is
to control and deter.
They are
the largest cog
in
the
crime-control
machine.
Although
they may understand,
at
least
in demo-
cratic societies, that
crime-control must be
balanced
by due
process,
their
professional
interest is
loaded heavily
in favor of
the former Packer,
1968 .
Their
occupational
attachment
to
the
goal of
crime-control
through
deterrence
is given
emotional weight
by
their
daily
experience with the
suffering
of
crime
victims. Unlike
judges
and
prosecutors,
police see
the
raw hurt
that
criminality
inflicts.
For the police,
as well
as for
most of us,
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BAYLEY
doing
justice
in such
circumstances means ensuring that
the
perpetrators
are
caught
and punished (Bayley
and Bittner, 1984 . The police are
tempted to
violate the
law in
order
to
serve
the larger interest
of natural
justice. This is often
referred to as noble cause misbehavior (Fitzgerald,
1989; Mollen, 1995 .
UNIQUE
EMPOWERMENT
Among agents of
government, the police have
a unique
power-they
can physically
constrain individuals. In order
to provide public safety, the
police are allowed to
lay hands on people's bodies against their
will. This is
the
authorization that
defines
them (Bayley,
1985 .
The
problem is
that it
is
only
a
short
step
from
unique authorization
to
preferred
tool
(Goldstein,
1990 . Zealous
law
enforcement
inevitably takes the form of overusing this
unique
power.
The defining
misbehavior
of
the
police, then, is the
misuse
of force.
PUBLIC
RESPECT
The public
is as ambivalent as
are the
police
about the balance between
crime-control and
due
process.
They too want
guilty
people
to
be caught
and punished,
especially
when
they
have been victimized,
and they com-
municate
that
sentiment
forcefully to the police. For example,
it
is
my
strong impression
that letters of commendation
about individual
police
officers- attaboys -overwhelmingly
praise action
rather
than restraint.
I
also suspect
that police officers
hear more complaints
about their negli-
gence
and ineffectiveness in the
line
of duty
than about
their
overreaching.
Not only do police feel pressure
from the public to overstep their
authority, they
are
taught
in police schools that
it is essential to
establish
immediate
control in
any
confrontational
situation (Bayley and Bittner,
1984 . This is most
commonly
done through
using or threatening
to
use the
forceful
authority inherent
in the
police role.
The Rodney
King
incident
is
an extreme
example of this. Police also believe that
the
public cannot
be
allowed to ignore
or
challenge the
authority
of the
police.
Police must
gain
what might
be
called situational respect.
Research
has
shown repeatedly
that
showing disrespect to the
police is
one of
the strongest determinants
of arrest in encounters
where
the police have wide latitude
of action (Bay-
ley, 1986; Klinger, 1994; Riksheim and Chermak,
1993; Sherman,
1980;
Reiss, 1971 Police refer
to this as flunking the attitude test.
CAREER
SUCCESS
olice organizations
measure themselves in terms of crimes
solved
(meaning suspects arrested),
stolen
goods
recovered,
contraband seized,
and citations
issued. Not surprisingly,
the careers
of individual officers
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COMMENTARY
depend
on
performing
well
on
the
same measures.
Law-enforcement
actions
are the
basis
for promotions,
pay
incentives,
medals,
commenda-
tions,
and
choice assignments.
At the same
time,
it
is difficult
for managers
of
police agencies
to reward officers
for
showing
restraint
and
for strictly
protecting
human
rights.
How are
they
to know
when
problematic
behav-
ior
did
not
occur?
As a
result,
the
behavior
of
officers
with
respect
to
legality is
generally
ignored
by
the organizations
they
belong
to except
when
violations are
found
out.
Because
the
reward
structure
in
policing,
reinforced
by
problems
of evaluation,
puts
a premium
on
crime-control,
officers
are
faced
with
balancing the
palpable
need to
demonstrate
law-
enforcement
activity against
the uncertain
risk
of
being
caught
for
trans-
gressing legal
boundaries.
BELONGING
Police
want
to be
well regarded
by the
people they
work
with,
as
do
people
in every
walk of life.
They
want
to be accepted,
to
fit
in, to
be part
of
the
group.
If police culture
views
strict
adherence
to the
rule-of-law
as
an
impediment
to
being a good
cop, individual
officers
will
behave
accordingly.
Even
in egregious
incidents
of
corruption and
brutality,
it
is
painfully
difficult
for police
colleagues
to
speak
out
(Fitzgerald,
1989;
Knapp,
1973;
Maas,
1973;
Mollen,
1994;
Skolnick and
Fyfe,
1993).
This
need
to
conform,
so
common
in
human life, is
undoubtedly
facilitated
with
police
because the
police
officers who
are in most
contact
with the
public
tend
to be
young.
They want
to
be
accepted
into
their
new community
just
as
much
as do
members
of college
fraternities
and
sororities
or
recruits
to
the
Marines.
COMPLEXITY
OF THE LAW
The
laws
that
define
propriety
for
police
are
often
complex and
unclear.
In
his
book
Guilty
Judge
Harold Rothwax
shows that
even judges
and
prosecutors
disagree about
the
appropriate
application
of
laws
that
the
police
are
routinely
called on
to follow,
particularly
in the
critical area
of
search
and seizure (1997).
Because the
content
of the
criminal
law
fre-
quently
contains
few bright
lines
and
these lines
shift
with judicial
inter-
pretations
and new
legislation,
the law
becomes
suspect in
the
minds
of
police Eterno,
1999).
They
see it as an
artifact
of
interpretation
as
well
as
of
politics,
and not
as
a
compelling
directive.
This
impression
is
reinforced
by
the
behavior
of
other
people
in
the
criminal
justice
system.
The
dirty
secret
of
contemporary
American
criminal justice
is
that prosecutors
and judges
know
full well the
corners
that police
cut
and often
turn a
blind eye. The
success
of
the
entire
system
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BAYLEY
depends on convicting
the
guilty as quickly as possible, even if that means
taking
liberties
with strict
due process.
Furthermore,
police
learn
very
quickly
that
the application of
law
requires judgment
and
the
exercise of discretion (Bayley and
Bittner,
1984;
Bittner, 1974; Brown,
1981;
Davis,
1975; Rubinstein, 1973;
Skolnick,
1994 . This makes
the
law
seem less a commandment than a convenience
to
be used to achieve control and justice.
POLICE
PERSONALITY
Studies
have shown repeatedly
that
police tend
to
be practical, action-
oriented
people
(Bayley, 1994;
Bayley and
Bittner,
1984; Bayley and Men-
delson, 1969; Brown,
1981;
Skolnick,
1994 . They want to bring
closure,
results, and solutions
to
the disorderly, ambiguous
situations they con-
front.
Criminal justice processes, however, tend
to be prolonged,
unpre-
dictable,
and, from
the
police point of
view inadequate. In such
circumstances, police
are tempted
to
shortcut
the
law so
as
to deliver what
their
role requires, namely, certain and speedy
deterrence.
The
power
of the factors mentioned
here
as
facilitators
of
disregard
for
the
rule-of-law
should not be
underestimated.
How many of
us
on the
outside of policing
if
similarly
situated
could
hold out
against
the
tempta-
tion to
render
justice
in
natural
rather than legal
terms?
The wonder
of
policing
in
countries
like
the
United States is not that police take liberties
with
freedom,
but that they do
not
do
it
more
often or
at least
are
not
seen to
be
doing it more
often.
The
task
to be
addressed
now is
to
assess
how
strong
an
instrumental
case can be
made that
it
is
in
the
interest of
the
police, individually
as well
as collectively,
to adhere strictly
to
the rule-of-law regardless of
the
circumstances.
THE DISADVANTAGES OF
LAW BREAKING
Seven arguments can be made that violating
the
rule-of-law
does not
serve
the
interests of the police. The
research in support of each will
be
cited.
VIOLATING THE RULE-OF-LAW
CONTRIBUTES
MARGINALLY
TO
DETERRENCE
The fact is that getting tough
on
crime by
overstepping
legal bounda-
ries
produces
very
small, if any, gains in
reducing criminality.
To
begin
with,
the criminal justice
system is
very ineffective
at
any time in
matching
punishment
to crime. At every stage
of criminal-justice processing, the
ability to
deliver punishment
to guilty
persons
decreases, although
the
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COMMENTARY
extent
of
the
slippage
undoubtedly
varies
among
jurisdictions,
especially
among
countries.
I have
estimated
that
less
than
5 of crimes
reported
to
police
in
the United
States
result
in either
a fine
or incarceration
(Bayley,
1991).
Approximately
50
of
all
crimes
are
not reported
at
all;
of
those,
about
22
are solved,
reducing
the
ratio
to
reported
crime
to
11%;
per-
haps
as
few as
50
of cases
solved
are
prosecuted
(so 5.5%);
80 of
those
prosecuted
are
convicted
(so 4.4%);
and many
of
those
convictions
pro-
duce
suspended
sentences.
To be
fair, however,
the
ratio of
punishment
to
crime
is higher
than
this
average
for
more
serious
crimes,
such
as murder,
aggravated
assault,
and
robbery.
Furthermore,
research
has shown
repeatedly
that crime
is
much
more
responsive
to social
conditions
than
to
legal
sanctions.
Criminologists
esti-
mate
that
close to
80
of
the variation
in
crime rates
within
developed
countries
can be
accounted
for
by
unemployment,
income,
education,
racial
heterogeneity,
residential
mobility,
home
ownership,
and
single-
households
headed
by
women
(Braithwaite,
1979,
1989). Illegality
on the
part of
the police
can
make
only
a small
difference
in
an already
small
effect.
Research
also shows
that some
of
the
standard
strategies
employed
against
crime
by the
police,
some
of which
push
the envelop
of legality,
are
of dubious
efficacy.
For example,
research
has
shown
that
only
about
1
of
proactive
traffic
stops
produced
evidence
of more serious criminality,
such
as
carrying
contraband
(Harris,
2001).
In
New
York
City,
arrests
were
made
in
about
10 of all
stop
and
frisks,
regardless
of
the race
of
the
person
stopped
(New
York
Attorney
General,
1999) A
study
by
the U.S.
Customs
Service
found
that
contraband
was
found
in 6
of
searches
of
both
black
and
white travelers
(1998).
When
racial
and
gender
profiling
was
eliminated
in
1998,
the
success rate
actually
improved
to
almost
16
(Cole and
Lamberth,
2001).
At
the
same
time,
analysis
of
data from
the
Maryland
highway
patrol in
response
to
concern
about
racial
profiling
in
stopping suspected drug traffickers found
that
hits
were
made
in
about
28 of
the
stops,
almost
exactly
the
same
for blacks
and whites
(Lam-
berth,
1999).
Contrary
to
police
predictions,
promulgation
of
Miranda
warnings
did
not
result
in
a decline
in
the
success of
criminal
prosecution
(American
Civil Liberties
Union,
2000;
Cassell
and
Hajman,
1996;
Leo,
1996;
Schulhoffer,
1996; Thomas,
1996). Nor
did the
enactment
by police
depart-
ments
of
policies
restricting
the use of
deadly
force
result
in
increases
in
crime
or injuries
to officers
or
decreases
in
arrest rates
(Fyfe,
1988;
Walker,
1993).
It is
also safe
to
say on
the
basis
of
research
into
the
efficacy
of police
strategies
and
tactics
since the President's
Commission
on
Law
Enforce-
ment
and
the
Administration
of
Justice
(1967)
that police
claim
greater
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BAYLEY
success for their core
strategies
than is warranted
(Bayley, 1994;
Sherman,
2000). In a recent review of
research into the
effect of police
actions
on
crime,
John Eck
and Edward Maguire concluded that it
is
a myth
that the
police have
a
substantial, broad,
and
in epen ent
impact on
the
nation's
crime rate 2000:51). They
go
on to
say
If the
police
continue to apply
generic coercive measures, we
may
continually oscillate between unfair
but
marginally
effective police
practices,
and marginally fair
but
ineffec-
tive policing (p.
54).
In arriving at these
conclusions, Eck
and
Maguire
reviewed
studies of
variations
in the numbers
of
police,
community
polic-
ing
zero-tolerance
policing, COMPSTAT,
gun interdiction patrols, retail
drug
enforcement,
and
problem-oriented policing.
Not
only does the available evidence cast serious
doubt on the assump-
tion
that violating
the
rule-of-law by
the police makes
communities
safer,
it would
be
very
difficult for
the
police or
anybody
else to prove that
it
did.
In order to show
that
violating
the rule-of-law was efficacious,
it
would
be
necessary to
estimate
the marginal
deterrent gain
of such activity. Obvi-
ously there is no specific
deterrent gain
if innocent
people are punished,
although there could be a gain if the person sanctioned
was innocent in the
particular
instance
but
guilty in
others. In order to show
that the specific
deterrent
effect
of convictions
by questionable means was substantial,
it
would be necessary to
determine the
proportion
of
people
so
convicted
that
were truly
guilty.
Such research
is
impossible.
At the same
time, unjustified arrests and
dubious
prosecutions
might
have
a
general
deterrent effect, that
is, they
might demonstrate
to
would-
be
criminals that crime
is a
risky
business.
Reviews
of research
on general
deterrence
conclude
that
any such
effect is
small and tough
to prove
(Laub
and Sampson,
2002;
Nagin,
1998).
As Daniel Nagin
says despite the
intensity
of
the
research effort, the
empirical evidence is still
not
sufficient
for
providing
a
rigorous
confirmation
of
the existence of a
[general] deter-
rent
effect.
Perhaps
more
important,
the
evidence
is
woefully
inadequate
for
providing
a good estimate of the
magnitude
of whatever
effect
may
exist (p. 135). On
the
other
hand,
Tracey Meares and
Dan
Kahan have
argued
that controversial
policies such as curfews,
gang-loitering
regula-
tions, police order-maintenance,
and reverse stings
may strengthen
local
norms
against criminal
or
disorderly
behavior 1998).
They caution, how-
ever,
that such
practices
can undercut
local
norms of compliance
with law,
as well as undermining respect
for law generally.
In sum, the general deterrent
effect of questionable police
practices
is
doubtful and
certainly difficult to
estimate.
Research has also
shown
that arrests
in general
magnify
the
social
disor-
ganization
of families and
communities,
especially in communities where
the
proportion
of people affected by criminal
sanctions
is
high
(Rose
and
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COMMENTARY
Clear, 1998 .
It is reasonable to
conclude
that unjust
arrests
and
convic-
tions
would
augment
this
effect. Contrary to the expectations of
the
police,
therefore,
law-enforcement
based on
questionable
legal practices may be
criminogenic.
The restorative justice movement presents a
larger
challenge
to the
belief
that violations of
the
rule-of-law
are useful
tactics in
law
enforce-
ment. John
Braithwaite
and others argue on the basis of a
growing
body of
evidence
that
informal
processes of
sanctioning
featuring community
conferences among police, victims,
suspects, and
their
respective support-
ers may be
more
effective at preventing
repeat
offending than
referral to
the formal criminal justice system (Braithwaite,
1988, 1998;
Strang, 2000 .
If this
is true,
then
the gains from questionable
law-enforcement practices
must we
weighed
not only
against acceptable ones,
but
also against the
benefits
of criminal
justice
processing
that
does not rely primarily on
deterrence.
It is often argued that the more serious the criminal
threat, the greater
may be the need for practices that violate the rule of law. his explains
why
states of emergency suspending the normal protections of law are
accepted
after natural disasters,
during
civil wars and guerilla
insurgencies,
and
in the face
of
rioting and widespread violent protests.
The
assumption
is that the
greater or more immanent the potential threat, thegreater the
value to
be derived from violating the rule-of-law. This
may be true in
some circumstances. But
even
here the evidence
is contradictory.
Cooper-
ation
between
the
public and
law-enforcement
authorities,
both police or
military, was considered
critical
in winning
the guerilla
insurgency in
Malaysia in
the
1950s
and
1960s,
Germany's
fight
against the
Red
Brigades
in the 1970s, and in Japan's campaign
against the radical
Red
Guards in
the
early 1970s.
Conversely,
if government can win people's
hearts and
minds,
deviant elements become isolated
and vulnerable. Law enforce-
ment
authorities,
even
when
faced with massive civil
unrest
and criminal-
ity, have learned that they must carefully
calculate
whether
their tactics
turn
the
public
into
coproducers of order
or co-conspirators of
defiance
(Kissinger,
1965;
Komer,
1972;
Thompson,
1969; West, 1985 .
VIOLATING
THE RULE-OF-LAW
REDUCES
ENFORCEMENT
EFFECTIVENESS
Violating the
rule-of-law impairs crime
control
by alienating
the
public.
This occurs
in two ways. First, violating
the
rule-of-law lessens
the
willing-
ness
of the
public to assist the police
in
carrying
out
their
assigned role.
Research
has shown again
and
again
that the
police
are almost
wholly
dependent on the public to
provide the
information
needed
to provide
safety and deter crime
(Bayley, 1994; Goldstein, 1990 . In countries like
the
United
States,
most police
work arises out of calls to
them
from
the
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BAYLEY
public Parks et
al.,
1999; Reiss,
1971).
Police
are almost entirely depen-
dent on
the
public
to
tell them
when crime
occurs.
Without information
from the public,
crimes cannot
be
solved
and
criminals
successfully
prosecuted. Greenwood and Petersilia found
that if
the public
does
not identify
the
likely suspect
in
some particular way-
name, residence, relation to victim,
license
plate the
chances of
a
crime
being solved
by
the
police falls
to
less than 10 Greenwood et al.,
1977,
also Royal Commission
on Criminal
Procedure,
1981). Contrary
to myth
and media,
detectives
work from the identification of suspects to the
col-
lection
of evidence
rather
than from the collection of evidence to the
iden-
tification of suspects.
This operational
modality, practiced
by
detectives
the
world over, may be in
the process
of dramatic
transition.
The
advent of
DNA identification reduces
the
dependence of the police on public infor-
mation and
raises
the
importance of physical evidence. How
much this
technology will change
customary
investigation
procedures remains to be
seen.
Because DNA identification
is
so
conclusive,
it also
promises
to
make it more
difficult to convict
innocent persons through
overzealous
investigation.
As
a
result of
research
conducted during
the 1970s
and 1980s,
a consen-
sus emerged
among
scholars
and
police that
successful
crime
prevention
depends
more
on actions
the public
takes
than
on
anything the
police
can
do
on their
own Goldstein,
1990;
Rosenbaum,
1988;
Sparrow
et al., 1990;
Trojanowicz and Bucqueroux, 1990).
Research showed repeatedly that the
standard responses
of the police to crime
were not
effective-most nota-
bly random foot and
motorized patrolling Kelling et al.,
1974;
Police
Foundation,
1981), rapid response
to
emergency calls for
service
Bieck
and Kessler,
1977),
and improvements in technology Manning, 1992;
Morris
and
Heal,
1981).
Research
has also called
into
question the crime-
prevention value of so elementary
a policy as hiring
additional
police per-
sonnel
Bayley, 1994;
Levitt,
1994; Loftin and McDowall,
1982; Marvell
and Moody, 1996).
These findings do
not imply
that
there is
nothing the
police can do on
their own
to
prevent crime, but
that the assistance of
communities
makes
police efforts vastly more effective Sherman,
1986, 2001; Sherman et
al.,
1998).
The research
of the 1970s
and 1980s
that
called
into question customary
police
strategies
led
to an intense search
for alternative approaches.
What
emerged
was
community-
and
problem-oriented policing, both of
which
recognize
that
the public should be viewed
as
coproducers of
public safety
and that
the
criminal law
is an
awkward tool for resolving
crime and disor-
der
problems Goldstein,
1990;
Skogan and
Hartnet, 1997; Trojanowicz
and Bucqueroux,
1990). In
other
words,
the
choice
between
hard deter-
rent) and soft rule-of-law) policing
is
false.
In
order
to
become
effective
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COMMENTARY
at
preventing
crime,
police need
to
be
protective
of
human
rights
so
that
they
can
enlist
the willing
cooperation
of the
public.
Policing by
consent,
to
use
the
British
slogan,
is
more
effective
at
crime
prevention
and
control
than
is
hard-nosed
law
enforcement
by
a
socially
isolated
police.
Second,
when the
police
violate
the
rule-of-law, they
not
only forfeit
the
cooperation
they
need,
but
they
also raise the
likelihood
that
encounters
with
the
public will
generate
hostility
and
violence. When
police act
beyond
the law,
they
lose
their
moral
authority.
This creates
a
tragically
reinforcing
cycle:
Abuse
by
the
police intensifies
public
suspicion
and hos-
tility toward
the
police;
suspicion
and
hostility
are
expressed
as sullenness
and disrespect;
this
prompts
the
police
to
exert
their
authority
more
explicitly,
perhaps
more
forcibly,
which
begins
the
cycle
over
again.
Actions
that
are
perceived
to
be arbitrarily
tough
may
encourage
the
very
sort of
confrontational
violence
they
are supposed
to
discourage.
This
pat-
tern
has been
founded
repeatedly in
observations
of
the
interactions
between
the police
and
African-Americans
in
the
United
States
(Bayley
and
Mendelsohn,
1969;
Brown,
1981; Kamisar,
1964;
Maclin
1991;
Sykes
and
Brent,
1983).
In
sum, extensive
research
has
shown
that
when the
police alienate
the
public,
their ability
to
enlist
the
cooperation
of the
public
declines
and
hostility
toward
the police
in
face-to-face
encounters
increases.
In neither
case
is public
safety
well
served.
VIOLATING
THE RULE-OF-LAW
WEAKENS
THE
AUTHORITY
OF LAW
Research
has
also shown
that
the
way
in
which laws
are enforced
affects
perceptions
of
their
legitimacy
and
the
willingness
of
people
to
obey them
(Sherman,
2000).
For
example,
Raymond
Paternoster
et
al.
found
that
the
risk of repeat
offending
for
people
arrested
for domestic
violence
was
less
when they
had
not been handcuffed
in front
of the
victim
and when
the
police had
taken time
to
listen
to
them as
well as
to
the
victim
1997).
Research
by Tom
Tyler
shows
that people
are more
likely
to
obey
the
law
if
they
believe that
sanctions
will
be
delivered
in a
procedurally
fair way.
His
theory
is that
compliance
with
the
law
depends
on
perceptions
of
legit-
imacy;
perceptions
of
legitimacy in
turn
depend
on
perceived
fairness of
criminal
justice
agents;
and
perceived
fairness
depends
on
the manner
of
treatment,
which
is
composed
of
assessments
of
the
motives, quality
of
treatment, neutrality,
and
reasonableness
of the
sanctioner
(Tyler,
1997).
Tyler
concludes (p.
178):
Police
officers
and judges
who recognize
and
respond to
people s
normative
concerns
can
exercise
their
authority
more
effectively;
the
rules
and
decisions
will
be
accepted
and obeyed
voluntarily.
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BAYLEY
Employing
a
quasi-experimental
design, Makkai
and Braithwaite found
that
compliance
with sanctions for violations
of
quality
standards in nurs-
ing
homes
was
sharply
affected by the
way in
which
the sanctions
were
applied
1994). If they were
applied
with
demonstrated
tolerance
and
understanding
for the
position of the
violator rather
than with personal
condemnation, they
were more likely
to
be
followed.
In short, a growing
body
of research
suggests that
compliance
with the
law
is
affected by the
way
in which
it
is
applied as
well as by its severity.
Rules must
be enforced,
but
they will be
accepted
more
readily
if
applied
with
consideration
for the sensibilities
of the
people
involved.
VIOLATING
THE
RULE-OF-LAW
SCAPEGOATS
THE POLICE
When police
take the law into
their own hands to control crime,
they are
implicitly
shifting
responsibility for
crime wholly
onto their own shoulders.
If
crime arises
largely
out
of social deprivation and
disorganization,
as
criminologists
have shown,
then violations of the rule-of-law
by police are
an attempt
to compensate
for
deficiencies in
social policies over which
the
police have
no control. Similarly,
if they resort
to
extra-legal
tactics
to
make
up
for deficiencies
of law and legal procedures, they
are again
trying
to
remedy inadequacies
they did
not
create.
By abridging
the rule-of-law,
police not
only
take responsibility
fo r
crime
onto
themselves,
they also deflect attention to themselves
and away
from the negligence of
others. If
crime is out
of
control, the police should
not accept
responsibility
for
it by exceeding their mandate.
They should
insist,
along
with an
aroused
citizenry, that social policies
be
changed or
that laws be amended.
Ironically, police know
that there is little they can
do on
their own
to prevent
crime
against
entrenched
criminogenic
social
conditions.
They often
say
that their efforts are like
a bandaid on can-
cer. Violating the
law
to make up for policy deficiencies, ironically, plays
into the very criticism
police deplore.
VIOLATING
THE
RULE-OF-LAW
DEPRESSES
MORALE
AND
MAKES
THE
POLICE
JOB
LESS
SATISFYING
Violating
the rule-of-law changes the
character of police organizations
in
several
unfortunate ways.
First,
it puts
enormous
pressure
on
all
employees to hide
what
is going
on and, in so doing,
puts them at risk.
The
organization
becomes
hostage
to
its own deviants
(Skolnick and Fyfe
1993).
Second,
violating
the rule-of-law inevitably
invites
outside
correction
when misdeeds
are
discovered.
This creates
a
bunker mentality
as
police
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COMMENTARY
organizations
try
to fend-off intervention.
Feeling besieged,
police
agen-
cies become less willing
to
be
open
and welcoming
to
the public and
its
representatives
(Bayley,
1983).
Third,
in
an
effort
to
appear
accountable, police work
becomes more
rule-bound
and
discipline
becomes
more
formalistic. Police
officers
are
given less
responsibility,
especially at
lower ranks. Initiative becomes sec-
ondary to errorless performance
(Bayley,
1996b).
Fourth,
the
relations between supervisors and
subordinates
become
strained
and
adversarial
(lanni and
Reuss-lanni,
1983).
They
are no longer
on the same
side,
but
opponents in a depressing game
of hide-and-seek.
Wariness
replaces
collegiality.
In general, illegality in
the
service of public safety
makes
policing a fur-
tive,
anxious activity. It
undermines
pride, which
is
the
basis
of
job satis-
faction.
Furthermore,
pride is essential to self-discipline, which is
the
most
effective means of achieving
exemplary
performance (Bayley, 1993).
VIOLATING THE
RULE-OF-LAW WASTES COMMUNITY
RESOURCES
In
countries
where redress under law
is
possible, revelations of law-
enforcement
excesses
jeopardize both past and future prosecutions. It has
been
estimated that
as
many
as 1,500
convictions
in
Los
Angeles
may
be
revisited and
vacated
as a
result
of
the
illegal activities of a handful of
officers the Ramparts subdivision (Skolnick, 2001).
Furthermore, in juris-
dictions
where people
whose rights have been
violated
by the police may
sue
the
appropriate
governments
for damages, the
monetary costs to the
community may be substantial. The costs of
civil
liability
stemming
from
police
misbehavior in
New York City since 1994,
for
example, has
been
176.9 million,
not
including the leg l costs involved in opposing such
actions. The
Los
ngeles Times
has estimated that
the city s
liability
in the
Rampart
subdivision s scandal could exceed
125
million
(2000).
In
smaller jurisdictions,
such awards may bankrupt governments.
Violating
the rule
of
law
raises
the
costs of law enforcement, wasting
investments already made in criminal prosecutions and diverting money
that
might
be used
for
crime
prevention.
VIOLATING THE
RULE-OF-LAW
PLACES POLICE OFFICERS
AT RISK
Most obvious
of all,
the personal
cost to
officers
who are
caught violat-
ing the rule of
law
can
be
catastrophic. For officers
who
do this
for their
own personal gain-money, promotions, recognition-there
should
be no
sympathy. But for
officers who
have engaged in questionable practices
because they believe
such practices enhance
the effectiveness
of law
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BAYLEY
enforcement, the situation
is morally
more ambiguous.
In a perverse
sense,
they are behaving
heroically,
placing
themselves at
risk
for the pre-
sumed
sake of public
safety.
This essay is
written
expressly
to
arm such
officers against exactly this misconception,
so
that
they
will
not
risk
so
much for
so little.
CONCLUSION
In
democratic
societies, the objective of
law
enforcement is to
maximize
both
deterrent criminal effectiveness and
conformity
to the
rule-of-law
based on recognized
human
rights. The
common assumption
is that these
goals
are
in conflict. I have given seven
reasons
why I believe this view
is
mistaken. The goals
of
effectiveness and
rectitude
in
policing are
not,
to
use technical language, orthogonal.
How
solid is
the evidence
that supports
this view?
Some is very solid,
especially
the research on the uncertain utility of standard
police
practices.
Also strong
is
the
research on
the
doubtful
benefits
of specific deterrence.
Unfortunately, the
evidence for
several other
arguments is either
weak
or
nonexistent.
For example,
Tom Tyler s work on
the
relationship between
compliance
with the law and the behavior of criminal justice authorities
is
projective, based
on
telephone interviews with individuals about minor
law
violations. Similarly,
the
advantages
of community-oriented
crime
pre-
vention
approaches have not been unambiguously
demonstrated (Rosen-
baum,
1994;
Skogan
and
Harnett, 1997 .
It
can be argued,
on
this assessment, that
the crime-control
value
of
strict adherence to
the rule-of-law
has
not been
conclusively
demon-
strated. However, the
burden of
proof, in
my
opinion, is
on the
other side.
There
is even
l ss
evidence
that
illegal
strategies
are
more
efficacious.
The
best
available
evidence
shows that
the immediate benefits
of violating the
rule-of-law are at best small, more likely mythical,
and
that the
long-term
costs are substantial.
On
balance,
I
conclude
that
it
is
in
the
interests of
the
police,
both individually and collectively, to adhere to
the rule-of-law.
There may
be
circumstances where violating
it are
justified,
but
such situa-
tions are rare and
the
value of doing so
in
any
particular case should
not
be assumed. In short,
a stronger, evidence-based
case can be
made
that
defending human
rights enhances
police
effectiveness than that doing
so
hampers it. Illegality
in policing is a risky
and generally
unproductive
strategy.
What research might be
undertaken that would
make
a
more compel-
ling
case
for
the
benefits
to
police of adhering scrupulously to
the
rule-of-
law? The
review of research presented in this
essay suggests that
the
fol-
lowing
questions
have
not
attracted
the
attention they deserve.
1) When police
violate the rule-of-law, do they recognize they are
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COMMENTARY
doing
so?
Is the
premise of
this
essay correct that
police
officers
generally know what
the
law requires and
violate it with a sense
of
guilt?
2)
How much do
the
police gain
in
terms of
specific
deterrence from
any of
their
crime-control
strategies,
but especially
those that
threaten
the rule
of law, such
as pedestrian
stop-and-frisk, ran-
dom motor-vehicle stops,
and
interdiction
profiling?
3) How close is the
connection between police scandals
and public
alienation?
In
particular,
does
police
misbehavior cause
the pub-
lic to
withhold support in ways that affect police
effectiveness, for
example, through failing to
report
crime, unwillingness to
identify
likely suspects,
not cooperating
with crime
prevention programs,
and withholding testimony in criminal trials.
4)
To
what extent are
public attitudes
toward the
police affected
by
the ability of the police to
clear
crimes
and make arrests? Fail
ing to catch
criminals is known only
to
a few, except
in celebrated
cases;
publicity about misbehavior
is
known
not only
to those
immediately involved,
but
also
runs
the
grave
risk
of
becoming
known to
the
wider
community.
A few
well-publicized
scandals
may
affect public perceptions of
the
police
far
more
than a
host
of
successful
investigations.
5)
Does
the
manner in which the law is
enforced
exert a
powerful
effect
on the likelihood
of
re-offending?
What factors affect this
relationship?
6) To what
extent
is morale and,
by
extension,
job satisfaction,
affected by
knowledge
of
violations
of
the
rule-of-law within
police forces? Furthermore,
does the occurrence of such viola-
tions
affect the character of discipline
within
the
force and
nature
of the relations among ranks, especially
between supervisors
and
supervisees?
7) How
much
variation is
there
with
respect
to tolerance of right-
eous
illegality within
as
well as
between police forces?
And
what
are the factors
that determine the differences?
If my
assumption
is correct
that police
often
violate
the
rule-of-law
because they
believe
it improves their ability
to
control and prevent crime,
then gathering
additional evidence
that
it
does not
is
an
important
under-
taking. But
it
is
clearly not
a
sufficient response to the problem. The infor-
mation
must be used so that it
changes behavior. How
is
this to
be done?
One
possibility would be
to
broaden
the approach
to the teaching
of
law
and ethics
to
police
recruits.
In addition
to
instructing them in the require-
ments of due process
and the
value
of
the
rule-of-law
in democratic socie-
ties,
they would
be
presented with
the
utilitarian
arguments
made
in this
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BAYLEY
paper.
In effect,
the
tradeoff
problem
would
be
met head on with
police
officers
at the very beginning
of
their
careers.
At the same time, I
am doubtful whether changing
the cognitive under-
standing
of police
officers
individually
will
be sufficient to offset
the
occu
pational
culture
within which
they
work.
It
is
unrealistic to
expect
individual
police
officers,
no matter
how well
instructed
in the arguments
made
in this
essay, to stand
against the
crime-control
understandings
and
expectations of their
colleagues, the public,
and
their
senior
officers.
The
more
effective
strategy,
then, for
changing
the
mindset of police
officers is
to
convince
the leaders of
police
agencies
that
violating the rule-of-law
is
not
a
sound law enforcement strategy,
so
that
they will then
be
embold-
ened to
change the moral tone,
disciplinary mechanisms,
management
pri-
orities,
and
career
incentives within the
organization. Research
has
shown
time and
again
that
organizations
are the most
powerful
determinants
of
the behavior of people
within
them
Bayley, 1996b; Hall,
1991; Walker,
1993).
Cognitive instruction
of the
kind suggested here should
be focused
initially and
repeatedly on
senior
police
executives.
If
they
can
be
con-
vinced
that
violating
the
rule-of-law
is
not useful
in
achieving
the goals of
police organizations,
they will
find
the
means to convince the
rank-and-
file.
The conclusion
of
this essay,
then,
supported
by current
social science
research,
is
that
violating
the
rule-of-law
in
order
to
control
crime
is
mis-
taken and that
the best
place to
start
in
reorienting
police
practices is
with
the managers
of
police
agencies.
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The Village. Madison,
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David Bayley
is
a
Distinguished
Professor
in
the School
of Criminal
Justice,
State
University
of
New
York at Albany.
A specialist
in
international criminal
justice,
with
particular
interest
in policing,
he has done
extensive
work
in India,
Japan,
Australia,
Canada,
Britain, Singapore,
and
the
United
States.
His work
has
focused
on strategies
in policing,
police
reform,
accountability,
foreign
assistance
to
police
agencies,
and
the
tactics
of
patrol
officers.
Professor
Bayley s
most recent
books are
What
orks
in
Polic
ing
(1998) and
Police
for
the
Future
(1994),
both
published
by
Oxford
University
Press,
New York.
Supported
by grants from the
National
Institute
of Justice
and
the
MacAr-
thur Foundation,
he is
currently
engaged
in a
three-year research
project studying
the
lessons-to-be-learned
about
assisting foreign
countries
to develop
effective
democratic
police
forces.
Professor
Bayley
earned a
B.A.
degree
at Denison
University
(1955),
an
M.A.
at Oxford
University
(1957), and
a Ph.D. at
Princeton University
(1960).
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YLEY