CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, April 9, 2018

Stoughton on Police Misconduct

Stoughton sethSeth W. Stoughton (University of South Carolina School of Law) has posted Police Misconduct (Introduction) (in Legal Issues Across the Globe, Vol. I 125 (Thomas Riggs, ed., 2018)) on SSRN. Here is the abstract:
 
This essay is an introduction to the Police Misconduct chapter in Legal Issues Across the Globe, Volume I. From the publisher: "Legal Issues Across the Globe is an academic series showcasing the diversity of legal approaches to issues making headlines worldwide. Each chapter is devoted to a single topic and presents twelve country essays examining how the nation’s history and culture have influenced legislative and judicial actions."

In general terms, defining wrongdoing by public officials, including police officers, is relatively easy. Misconduct falls into one of three categories: malfeasance, or the performance of unlawful acts; misfeasance, which is the performance of otherwise lawful acts in an unlawful or wrongful way; and nonfeasance, or the failure to perform a legally required act. Regulating misconduct, however, is far more complicated than defining it. The essays in this chapter offer valuable insights into legal regulation in different countries and contexts, including reflections on the nature of police misconduct as a social and legal problem.


Modern societies need, and largely want, police forces that can respond to a range of emergencies. For that reason officers are granted special coercive authority: they can invade privacy, confiscate property, restrict liberty, and engage in violence beyond what would be permissible for non-officers. But the special powers that officers are granted bring with them the potential for abuse. Herein lies the perennial paradox of regulating police misconduct: societies can increase the effectiveness of policing by giving officers more authority, but doing so increases the risk that such authority will be misused. On the other hand, societies can reduce the risk of police misconduct by strictly limiting officers’ authority, but doing so can inhibit effective law enforcement. As preeminent police scholar Herman Goldstein wrote in the 1970s, regulating the police involves balancing society’s need for order against individuals’ desire for freedom.

As the essays in this chapter demonstrate, different countries have found different ways to strike that balance. There are common threads, however, that help develop a framework to better understand the regulation of policing. The essays reflect not only a variety of regulatory approaches but also how the law and police misconduct share a complicated and multifaceted relationship.

The chapter, which is not provided here in its entirety, features essays (by other authors) that discuss the legal regulation of police misconduct in Brazil, Egypt, India, Mexico, Papua New Guinea, the Philippines, South Africa, Spain, Thailand, Ukraine, the United Kingdom, and the United States.

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