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Univ. of San Diego School of Law

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Saturday, October 1, 2005

Article Spotlight: Role-Based Policing

St. Louis CrimProf Eric Miller has posted Role-Based Policing: Restraining Police Conduct “Outside the Legitimate Investigative Sphere. Abstract:

In this article I claim that the massive incarceration of African Americans consequent to the War on Drugs and policing practices targeted upon predominantly minority residents of the inner cities have undermined the popular legitimacy of the criminal law. The central challenge of urban policing is how to combat the effects of bias in policing and punishment without reducing the level of law enforcement in poor black communities.

Recent, norm-focused solutions separate public order from drug offenses, and identify the former as most destructive of community cohesion. They thus require the police to ignore low-level drug offenses and instead to engage in preventative policing, singling out quality of life issues, rather than the reactive type of investigative policing directed at apprehending criminals.

My claim is that the police, as currently constituted, are simply the wrong people to engage in preventative policing.  They are trained to use precisely these public order offenses as an opportunity to escalate and transform encounters into the sort of stop-and-frisk drug busts that have caused such controversy among minority communities.

In Role-Based Policing, I introduce the vital and far-reaching distinction between rule- and role-based grants of authority.  Rule-based authority has its basis in adherence to the content of particular rules; role-based in the powers afforded individuals occupying a particular status in specified circumstances or jurisdictions These different justifications for the scope of legitimate authority explain the Supreme Court’s vacillation between a due-process insistence on prior, neutral scrutiny of police activity and a crime-control promotion of reasonableness in evaluating police activity. The triumph of the role-based model authority undermined the Warren Court’s rule-based limits on policing, and permits the invasive stop-and-frisk practices used in urban communities as part of the War on Drugs.

The solution is not more rules to constrain the police, but a separation of the police’s proper investigative role from the preventative role of public order maintenance.  The goal is to delegate preventative tasks of public order policing to individuals who do not have the same to arrest and incarcerate urban residents.  In so doing, this article provides, not only a timely and relevant critique of current prescriptions for policing urban minority communities on the front lines of the War on Drugs, but an innovative solution to the legitimacy crisis facing law enforcement in the inner city.

Download paper here.

http://lawprofessors.typepad.com/crimprof_blog/2005/10/article_spotlig.html

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