The organization of the modern police is a contingent social choice about how to engage in the process of governance when regulating public order on the street. The police are the agency authorized to act upon the state’s duty to govern in response to public emergencies. The duty to govern exists when there is some urgent social need that could be resolved by acting, and some person or institution has the resources and ability to do that act. The duty is (...) impersonal: anybody with the relevant skill set is obligated to act to address the relevant need. Problems can arise, however, when too few individuals respond or too many compete to resolve the need. A core feature of governance, then, is to create publicly recognized institutions with special authority, resources, and abilities to address the demand for public services when someone needs to step in and do something to the exclusion of ordinary members of the public. Police agencies are further characterized by various powers and duties. These powers are normative powers to change the legal status of the people with whom the police interact, rather than physical powers to use some amount of violence to coerce individuals to comply with police demands. The core powers of the police include the powers to make authoritative determinations about how to respond to an emergency, to detain individuals, and to trespass upon their person or property, along with conjoined duties to govern, to protect, and to intervene at risk to themselves. The dominant approach attempts to distinguish the police from other institutions using the police ability to use violent to respond to public emergencies. On the governance based model of the police, however, the ability to use force is simply one of the resources available to the police, and does not mark them off as different from other public governance agencies. (shrink)

Felony disenfranchisement is best understood as a means of vote suppression. Quite apart from its significance as a form of criminal stigma, disenfranchisement is most properly characterized as one of the ways in which the American voting system reserves political participation for a privileged social and intellectual class. Thus understood, felony disenfranchisement reveals the theoretical underpinnings of an exclusionary version of American democracy in which more or less widespread disenfranchisement is an acceptable or necessary political tactic. Felony disenfranchisement should not (...) be characterized as a sanction for criminal conduct: It fits none of the usual justifications for punishment. Most commentators agree that felony disenfranchisement as a collateral sanction for criminal conduct stigmatizes alike a disparate collection of individuals convicted of crimes carrying a penalty of one year or more - everything from drug possession to murder - and extends, in many instances, long after former felons have completed their sentences. Justifications for refusing the vote to felons, and to former felons who are no longer incarcerated, are surprisingly weak and clearly related to larger issues of democratic participation. Accordingly, it is under the framework of democratic participation that the most persuasive justifications of disenfranchisement might be found. Under the framework of democratic participation, the disenfranchisement debate implicates competing theories of democracy, each of which has profound consequences for the constitution of the American polity. I contend that there are currently three models for the right to vote in American society: (1) a membership model premised upon popular participation in the democratic process as an expression of citizenship; (2) a deliberative model in which popular participation is conditioned upon the duty to be an informed and reflective citizen; and (3) an elite model entrenching political office in a political class that competes for votes among the electoral masses. The continuing vitality of these three models at the level of political debate and constitutional doctrine unsettles the dominant history of the franchise as one of progress from an exclusionary to an inclusionary extension of the mandate, and requires us to acknowledge felony disenfranchisement as part of a larger process of voter exclusion and suppression. (shrink)

Quality-of-life policing, responsive to the concerns of urban communities, presents a profound paradox. On the one hand, the collateral effects of drug use, especially in public and in racially fragmented, low-income communities, result in levels of crime and fear of crime that renders the communities almost uninhabitable; on the other, the collateral effects of policing drug crime, for these same communities, destroy the community's human fabric. A "new" generation of legal scholars have embraced and transformed the Broken Windows model of (...) policing urban communities. These theorists share a "social norms"perspective: they suggest that law's direct threat of imposing sanctions is not the sole means of constraining conduct. A variety of other devices, including non-legal, "social" norms, may supplement the law's coercive power. The social norms "take" on the Broken Windows argument is that public low-level crime undermines the social structures of local communities. Inner city blight sends a distinct message: that community members reject or ignore norms supporting law-abiding behavior in favor of norms supporting law-breaking. Accordingly, social norms theorists advocate empowering police and local communities through a variety of traditional and newly minted public order offenses (such as anti-loitering statutes and youth curfews) as means of attacking high crime in urban and predominantly minority neighborhoods. In this article, I take up the challenge of public order policing. My claim is that the sort of preventative policing social norms theorists advocate can and should be separated from reactive "investigative" policing directed at apprehending criminals. Separating preventative and investigative policing means that the police, as currently constituted, are the wrong people to engage in preventative policing. Instead, the appropriate people include municipal officials with no power to engage in investigation but who have the authority to enforce norms of public order. My proposal is to radically restructure the manner in which we think about the legitimacy of various policing practices and the type of authority the police wield. Our current focus on constitutional remedies for low-level police abuses has failed to ameliorate the justified resentment expressed by individuals and local communities subject to heightened amounts of increasingly invasive policing.The attempt to limit police authority through prospective constitutional (and other) norms that control their ability to search, seize, and interrogate suspects is properly confined to the police's investigative role. Limits do not work to constrain their ability to police public order and engage in crime prevention. Yet even at the investigative stage, the Court has already replaced the rule-based due-process model of authority with a series of role-based exceptions to the Fourth, Fifth, and Sixth Amendments' constitutional requirements. Both role- and rule-based concepts of authority concern the proper scope of legitimate authority. Rule-based authority has its basis in adherence to the content of particular rules; role-based authority is based in the powers afforded individuals in particular roles of public authority. Whereas rule-based authority derives its legitimacy primarily from the government's right to promulgate norms, role-based authority gains legitimacy from the degree to which the official's role is matched to the circumstances triggering authority. (shrink)

When addressing the burdens borne by victims of police wrongdoing, we often overlook moral harms in focusing on the physical and psychological harms that they suffer. These moral harms undermine the moral status of the victim, her ability to consistently pursue the values she endorses, and her character. Victimhood is a morally significant social role. Victimhood imposes normative standards that measure the moral or political status of victim. Conforming to these standards affects our assessment of the conduct of the victim (...) and her moral standing. Considering the victims’ role provides important insights into contemporary practices of policing in the United States. The physical and verbal acts of the police often force race-based degradation upon racially subordinated groups. There is often no morally good way out of racially discriminatory encounters when the choice is to degrade oneself or suffer violence or even death. Worse, how we respond to the threat of police violence morally undermines our relationships with those we would keep safe from police violence. (shrink)

This review of Hoskins’ book on the collateral legal consequences of a criminal conviction focuses on some of the consequences of his concept of collateral legal consequences for our understanding of justifications of criminalization, the theory of punishment and incapacitation upon which it rests, and the implications for the prosecutor’s role that goes beyond Hoskins’ suggestions in the last part of the book. The review particularly engages with Hoskins’ distinction between punishment and incapacitation, which forms the core of his defense (...) of collateral sanctions as in principle capable of moral justification and his excellent discussion of contemptuous punishment, which he uses to sketch out the limits of both direct and indirect criminal sanctions. (shrink)