Issues in Criminal Justice Discussion

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 con- stitutional 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

* Walton Hale Hamilton Professor of Law, Yale University. Thanks go to Ben Grunwald for helpful research assistance and to Ben Justice and Tom Tyler for comments on an earlier draft of the lecture that became this Essay. I am also appreciative of comments and questions from students and audience members at the George Wythe Lecture at William & Mary Law School, who help me sharpen and deepen the discussion here.

1. See, e.g., Michael D. Reisig, Community and Problem-Oriented Policing, 39 CRIME & JUST. 1, 1-4, 23-40 (2010); Samuel Walker & Morgan Macdonald, An Alternative Remedy for Police Misconduct: A Model State “Pattern or Practice” Statute, 19 GEO. MASON U. C.R. L.J. 479, 483 (2009); Heather Mac Donald, Op-Ed., Fighting Crime Where the Criminals Are, N.Y. TIMES, June 26, 2010, at A19 (describing the New York City Police Department’s use of the CompStat System as a strategy to achieve effective policing).

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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 com- pliance 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, demo- cratic.

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 im- plications 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.

I. 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