Monday, November 21, 2011
Harmon on Moving Beyond the Conventional Paradigm of Constitutional Law in Regulating Police Procedure
The legal problem of policing is how to regulate police authority to permit officers to enforce law while also protecting individual liberty and minimizing the social costs the police impose. Courts and commentators have largely treated the problem of policing as limited to preventing violations of constitutional rights, and its solution as the judicial definition and enforcement of those rights. But constitutional law and courts alone are necessarily inadequate for regulating the police. Constitutional law does not protect important interests below the constitutional threshold or address effectively the distributional impacts of law enforcement activities. Nor can the judiciary adequately assess law enforcement practices or predict police conduct. The problem of policing is fundamentally a problem of regulation. While scholars have criticized the conventional paradigm, contemporary scholarship continues to operate within its limits. In this article, I advocate a new agenda for scholars considering the police, one that asks not how the Constitution constrains the police, but how law and public policy can best regulate the police.
First, scholars should evaluate policing practices to determine what harms they produce, which practices are too harmful, and which are harm-efficient. These inquiries are essential to ensuring that the benefits of policing are worth the costs it imposes. Second, scholars should explore the full “law of the police,” the web of interacting federal, state, and local laws that govern the police and police departments. Presently, for example, courts tailor their interpretation of § 1983 and the exclusionary rule to encourage changes in police behavior, yet civil service law, collective bargaining law, and federal and state employment discrimination law simultaneously discourage the same reforms, a phenomenon ignored by the academy. Third, scholars should analyze the capacities and incentives of non-judicial local, state, and federal institutions to contribute to a regulatory regime capable of intelligently choosing and efficiently promoting the best ends of policing. This agenda offers a path for moving beyond constitutional criminal procedure toward a legal regime that promotes policing that is both effective and protective of individual freedom.