Thursday, March 23, 2023
Fissell on Police-Made Law
Brenner Fissell (Villanova University) has posted Police-Made Law (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
This Article presents evidence that police are writing the laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed through an anti-vaping ordinance because of news articles he read about the dangers of e-nicotine.
Contextualizing police-made law within policing theory and local government structure makes it less surprising, but we should be critical of it in many types of cases. Democratic political theory sets requirements for when bureaucratic interest groups may legitimately influence legislative deliberation, and police often fail to meet these. Basic expectations of neutrality and expertise, derived from administrative law, are often lacking.
Police-made law changes how we understand the role of police in governance. Rather than being the downstream recipients of extraneously conferred authority, they are active participants in the expansion of their own power. Police are not mere agents of the racialized mass misdemeanor system—they are also its architects.