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Citation: 2 Criminology & Pub. Pol'y 133 2002-2003

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2/23

COMMENTARY

LAW

ENFORCEMENT

ND THE

RULE

OF

LAW:

S

THERE

TRADEOFF?

DAVID

H.

BAYLEY

State

University

of

New

York

at

Albany

ABSTRACT

This

essay assesses

whether

a strong

evidence-based

argument

can

be

made

to

support

the

proposition

that when

police

violate

the rule-of-

law they

do

more

harm

than good

with

respect

to their collective

as

well

as

personal

nterests. The

assessment

is

undertaken

to counter

the

common

presumption among

police officers

that circumstances

often

justify

cutting

legal corners in

the

interests

of public

safety.

The

essay

first examines

what

research

shows about

the facilitatorsof police

l w

breaking.

It then

examines seven

reasons

why

violating

the rule-of-law

works

against

the

instrumental

interests of the

police

themselves.

After

assessing

the

strength

of the evidence

against the

instrumental

benefit of

violating

the rule-of-law

suggestions

are

made

about

research

that

is

needed

to

make the case

more compelling.

In conclusion

the

essay

dis-

cusses

how

empirical

knowledge

might

be

most

productively used

to

change the

culture

of contemporary

policing.

KEYWORDS:

Police,

Civil Liberties,

Police

Effectiveness, Accountabil-

ity,

Police Integrity

The

public in

every

society worries

about the

integrity

of

its police.

Some

have

better reasons

for this than do

others.

But everywhere,

regard-

less

of the

objective incidence of

misbehavior,

people become

easily con-

cerned

that

the

police

do

not

abide

by the law

and

misuse

their

power

Bayley,

1996a).

At

the

same time,

it

is

my experience

that the

police in

every society

believe

that

they

must occasionally

cut legal corners

in order

to provide

effective protection to

that very

same public.

Among

police

there

is

a nearly

universal mindset

that

abiding

by the

rule-of-law

and

adhering to

recognized

standards

of

human rights

is sometimes

too restric-

tive, preventing

victims from

obtaining

justice,

allowing criminals

to

go

unpunished,

and

placing

society at

unacceptable

risk Crawshaw,

2000).

This

mindset of the police,

and the behavior

it engenders,

shows

up

in

a

number

of

ways. Police complain

almost everywhere

about the

uncertain-

ties

of criminal

justice

processing slipshod

prosecutions,

inept

and venal

judges,

unwilling

witnesses,

cumbersome

procedures,

and laws loaded

in

NUMBER

2002

PP

133 154

OLUME

2


3/23

BAYLEY

favor of suspects. Police

are regularly accused, even

in countries

with

human rights records that are good by world standards, of engaging in

unjustified stops and seizures (Bayley, 1996a).

They have

been found

to

fabricate

evidence

and

testify falsely

in order

to

gain convictions. So

com-

mon

did these practices

seem to be in New

York

City recently

that the

Mollen Commission coined a new word

to

describe

them- testilying

(1994).

Complaints of excessive

use

of force ostensibly to control

crime are

also common

around

the

world, whether to

obtain confessions

from

unwilling suspects or to intimidate

would-be criminals (Bayley, 1996a).

Intimidation

is

especially disturbing

when it is

directed

at whole classes

of

individuals, as when police say that those

people only

understand force

or people

like

that

have to be taught respect

for

the

law.

Although

the

public

is

most concerned about dramatic

infringements of

the rule-of-law, such as brutality, planting

false

evidence, and lying in

courts

most

o

the liberties taken by police are more

mundane,

routinized,

and difficult to detect. For

example, a Texas police officer told

me how he

had developed a

challenge-proof method

for

stopping motorists on

suspi

cion, without a

shred

of probable cause.

After

stopping a car, he would

thump the left rear

fender

with his

hand

as he walked

up to

it.

If the driver

asked why the officer

had

stopped

him, the officer would say that the

left

rear taillight

was

not

working. If the driver

checked for himself,

which

was

unusual,

the officer would say that his thump

must have restored the

con-

nection and he

would advise the driver, in the

interest

of

safety, to

get

it

checked at a

service

station. Thus, an

illegal

stop could

be disguised

as

helpful

assistance.

The usual explanation

for such behavior is that the police do

not under-

stand what

is

right and

wrong; that

the

values

of

the police

need changing

to emphasize more scrupulous adherence

to law and to human rights

(Barker

and

Carter, 1986;

Klockars

et

al.,

2000; Skolnick and Fyfe,

1993).

It

follows,

then, that the solution

is

to raise the

normative

consciousness

of

the

police, to convince them that

they

have

a duty both to

uphold

the rule-

of-law and to provide public

safety. I

think this

diagnosis

is mistaken. The

problem is

not

normative, but cognitive. The

police generally

know what

behaviors are right and wrong. The problem

is that

they

believe that the

violation

of law and of human rights

is

sometimes

required

for

effective

law enforcement.

For example, a survey

undertaken

for the U.S. Depart-

ment

of Justice

found

that 43 of 925 officers randomly

selected

from

121

American

police departments thought that

always following the rules

is

not

compatible

with getting

the

job

done (Weisburd

et

al., 2000).

Let

it

be

said, however, that

57.2 disagreed. In

other words,

many

police

have

concluded, and are willing to

admit it to anonymous telephone surveyors,

that rigid adherence

to the

rule-of-law

is

sometimes contrary

to

their

responsibility to protect

communities effectively.


4/23

COMMENTARY

If

my

thesis is

correct,

police

must

be

shown

that the

costs to them

of

violating

the

rule-of-law

are

greater

than

are

the benefits,

that

doing right

is not

only commendable

normatively,

but

also

furthers

their

own

collec-

tive self-interest

Mastrofski,

1999 .

Moral

exhortation

alone is unpersua-

sive bec use it

does

not

address

the

tradeoffs that police

are

convinced

they face. This

explains

why

in my

experience,

lecturing

to the

police

about human

rights is

met

with

palpable lack

of interest-eyelids

droop,

note-taking

stops, and

faces

become

wooden.

The police act

as if they

know

all

that, which

in many

cases is

true. The

problem

is

that

lectures

on

human rights

are

a necessary

but not sufficient

corrective

to the

dilemma

police

officers

face. What

is

needed

instead is

an

evidence-based

demon-

stration

that

rectitude

is useful

to the

police

in

fulfilling

their

mission of

preventing

and

controlling crime. This

sort

of

argument will get

their

attention.

Can this

be

done?

Is it

possible

to demonstrate

in

a

convincing

way that

the benefits from behaving

according

to

recognized

standards

of

human

rights

outweigh

the costs of

not doing

so? Can

the self-interest

of the

police be

harnessed to the

achievement

of more

scrupulous behavior?

The task

of this

paper is

to

explore

whether

a strong

case can

be

made

that

the effectiveness

of the police

will

be

better

served by

scrupulous

regard for

the

rule-of-law

rather

than selective

disregard

for

the rule-of-

law.

The

discussion

will

be

in two

parts:

first,

a

discussion

of

factors

that

contribute

to

the disregard for

the

rule-of-law

by

police

and, second,

an

examination

of

the

disadvantages

to police

of

disregarding

the rule-of-law.

REASONS

FOR

LAW-BREAKING

There are

at least

seven

factors that

encourage

police

officers to

violate

the rule-of-law

and human

rights.

PUBLIC SAFETY

Police

are part

of

the criminal

justice

system

whose

explicit purpose is to

control crime

through

deterrence,

that

is,

to catch

and punish

people who

violate the

law.

Despite

slogans

about serving

and protecting,

the

essential

mission

of the police is

to control and deter.

They are

the largest cog

in

the

crime-control

machine.

Although

they may understand,

at

least

in demo-

cratic societies, that

crime-control must be

balanced

by due

process,

their

professional

interest is

loaded heavily

in favor of

the former Packer,

1968 .

Their

occupational

attachment

to

the

goal of

crime-control

through

deterrence

is given

emotional weight

by

their

daily

experience with the

suffering

of

crime

victims. Unlike

judges

and

prosecutors,

police see

the

raw hurt

that

criminality

inflicts.

For the police,

as well

as for

most of us,


5/23

BAYLEY

doing

justice

in such

circumstances means ensuring that

the

perpetrators

are

caught

and punished (Bayley

and Bittner, 1984 . The police are

tempted to

violate the

law in

order

to

serve

the larger interest

of natural

justice. This is often

referred to as noble cause misbehavior (Fitzgerald,

1989; Mollen, 1995 .

UNIQUE

EMPOWERMENT

Among agents of

government, the police have

a unique

power-they

can physically

constrain individuals. In order

to provide public safety, the

police are allowed to

lay hands on people's bodies against their

will. This is

the

authorization that

defines

them (Bayley,

1985 .

The

problem is

that it

is

only

a

short

step

from

unique authorization

to

preferred

tool

(Goldstein,

1990 . Zealous

law

enforcement

inevitably takes the form of overusing this

unique

power.

The defining

misbehavior

of

the

police, then, is the

misuse

of force.

PUBLIC

RESPECT

The public

is as ambivalent as

are the

police

about the balance between

crime-control and

due

process.

They too want

guilty

people

to

be caught

and punished,

especially

when

they

have been victimized,

and they com-

municate

that

sentiment

forcefully to the police. For example,

it

is

my

strong impression

that letters of commendation

about individual

police

officers- attaboys -overwhelmingly

praise action

rather

than restraint.

I

also suspect

that police officers

hear more complaints

about their negli-

gence

and ineffectiveness in the

line

of duty

than about

their

overreaching.

Not only do police feel pressure

from the public to overstep their

authority, they

are

taught

in police schools that

it is essential to

establish

immediate

control in

any

confrontational

situation (Bayley and Bittner,

1984 . This is most

commonly

done through

using or threatening

to

use the

forceful

authority inherent

in the

police role.

The Rodney

King

incident

is

an extreme

example of this. Police also believe that

the

public cannot

be

allowed to ignore

or

challenge the

authority

of the

police.

Police must

gain

what might

be

called situational respect.

Research

has

shown repeatedly

that

showing disrespect to the

police is

one of

the strongest determinants

of arrest in encounters

where

the police have wide latitude

of action (Bay-

ley, 1986; Klinger, 1994; Riksheim and Chermak,

1993; Sherman,

1980;

Reiss, 1971 Police refer

to this as flunking the attitude test.

CAREER

SUCCESS

olice organizations

measure themselves in terms of crimes

solved

(meaning suspects arrested),

stolen

goods

recovered,

contraband seized,

and citations

issued. Not surprisingly,

the careers

of individual officers


6/23

COMMENTARY

depend

on

performing

well

on

the

same measures.

Law-enforcement

actions

are the

basis

for promotions,

pay

incentives,

medals,

commenda-

tions,

and

choice assignments.

At the same

time,

it

is difficult

for managers

of

police agencies

to reward officers

for

showing

restraint

and

for strictly

protecting

human

rights.

How are

they

to know

when

problematic

behav-

ior

did

not

occur?

As a

result,

the

behavior

of

officers

with

respect

to

legality is

generally

ignored

by

the organizations

they

belong

to except

when

violations are

found

out.

Because

the

reward

structure

in

policing,

reinforced

by

problems

of evaluation,

puts

a premium

on

crime-control,

officers

are

faced

with

balancing the

palpable

need to

demonstrate

law-

enforcement

activity against

the uncertain

risk

of

being

caught

for

trans-

gressing legal

boundaries.

BELONGING

Police

want

to be

well regarded

by the

people they

work

with,

as

do

people

in every

walk of life.

They

want

to be accepted,

to

fit

in, to

be part

of

the

group.

If police culture

views

strict

adherence

to the

rule-of-law

as

an

impediment

to

being a good

cop, individual

officers

will

behave

accordingly.

Even

in egregious

incidents

of

corruption and

brutality,

it

is

painfully

difficult

for police

colleagues

to

speak

out

(Fitzgerald,

1989;

Knapp,

1973;

Maas,

1973;

Mollen,

1994;

Skolnick and

Fyfe,

1993).

This

need

to

conform,

so

common

in

human life, is

undoubtedly

facilitated

with

police

because the

police

officers who

are in most

contact

with the

public

tend

to be

young.

They want

to

be

accepted

into

their

new community

just

as

much

as do

members

of college

fraternities

and

sororities

or

recruits

to

the

Marines.

COMPLEXITY

OF THE LAW

The

laws

that

define

propriety

for

police

are

often

complex and

unclear.

In

his

book

Guilty

Judge

Harold Rothwax

shows that

even judges

and

prosecutors

disagree about

the

appropriate

application

of

laws

that

the

police

are

routinely

called on

to follow,

particularly

in the

critical area

of

search

and seizure (1997).

Because the

content

of the

criminal

law

fre-

quently

contains

few bright

lines

and

these lines

shift

with judicial

inter-

pretations

and new

legislation,

the law

becomes

suspect in

the

minds

of

police Eterno,

1999).

They

see it as an

artifact

of

interpretation

as

well

as

of

politics,

and not

as

a

compelling

directive.

This

impression

is

reinforced

by

the

behavior

of

other

people

in

the

criminal

justice

system.

The

dirty

secret

of

contemporary

American

criminal justice

is

that prosecutors

and judges

know

full well the

corners

that police

cut

and often

turn a

blind eye. The

success

of

the

entire

system


7/23

BAYLEY

depends on convicting

the

guilty as quickly as possible, even if that means

taking

liberties

with strict

due process.

Furthermore,

police

learn

very

quickly

that

the application of

law

requires judgment

and

the

exercise of discretion (Bayley and

Bittner,

1984;

Bittner, 1974; Brown,

1981;

Davis,

1975; Rubinstein, 1973;

Skolnick,

1994 . This makes

the

law

seem less a commandment than a convenience

to

be used to achieve control and justice.

POLICE

PERSONALITY

Studies

have shown repeatedly

that

police tend

to

be practical, action-

oriented

people

(Bayley, 1994;

Bayley and

Bittner,

1984; Bayley and Men-

delson, 1969; Brown,

1981;

Skolnick,

1994 . They want to bring

closure,

results, and solutions

to

the disorderly, ambiguous

situations they con-

front.

Criminal justice processes, however, tend

to be prolonged,

unpre-

dictable,

and, from

the

police point of

view inadequate. In such

circumstances, police

are tempted

to

shortcut

the

law so

as

to deliver what

their

role requires, namely, certain and speedy

deterrence.

The

power

of the factors mentioned

here

as

facilitators

of

disregard

for

the

rule-of-law

should not be

underestimated.

How many of

us

on the

outside of policing

if

similarly

situated

could

hold out

against

the

tempta-

tion to

render

justice

in

natural

rather than legal

terms?

The wonder

of

policing

in

countries

like

the

United States is not that police take liberties

with

freedom,

but that they do

not

do

it

more

often or

at least

are

not

seen to

be

doing it more

often.

The

task

to be

addressed

now is

to

assess

how

strong

an

instrumental

case can be

made that

it

is

in

the

interest of

the

police, individually

as well

as collectively,

to adhere strictly

to

the rule-of-law regardless of

the

circumstances.

THE DISADVANTAGES OF

LAW BREAKING

Seven arguments can be made that violating

the

rule-of-law

does not

serve

the

interests of the police. The

research in support of each will

be

cited.

VIOLATING THE RULE-OF-LAW

CONTRIBUTES

MARGINALLY

TO

DETERRENCE

The fact is that getting tough

on

crime by

overstepping

legal bounda-

ries

produces

very

small, if any, gains in

reducing criminality.

To

begin

with,

the criminal justice

system is

very ineffective

at

any time in

matching

punishment

to crime. At every stage

of criminal-justice processing, the

ability to

deliver punishment

to guilty

persons

decreases, although

the


8/23

COMMENTARY

extent

of

the

slippage

undoubtedly

varies

among

jurisdictions,

especially

among

countries.

I have

estimated

that

less

than

5 of crimes

reported

to

police

in

the United

States

result

in either

a fine

or incarceration

(Bayley,

1991).

Approximately

50

of

all

crimes

are

not reported

at

all;

of

those,

about

22

are solved,

reducing

the

ratio

to

reported

crime

to

11%;

per-

haps

as

few as

50

of cases

solved

are

prosecuted

(so 5.5%);

80 of

those

prosecuted

are

convicted

(so 4.4%);

and many

of

those

convictions

pro-

duce

suspended

sentences.

To be

fair, however,

the

ratio of

punishment

to

crime

is higher

than

this

average

for

more

serious

crimes,

such

as murder,

aggravated

assault,

and

robbery.

Furthermore,

research

has shown

repeatedly

that crime

is

much

more

responsive

to social

conditions

than

to

legal

sanctions.

Criminologists

esti-

mate

that

close to

80

of

the variation

in

crime rates

within

developed

countries

can be

accounted

for

by

unemployment,

income,

education,

racial

heterogeneity,

residential

mobility,

home

ownership,

and

single-

households

headed

by

women

(Braithwaite,

1979,

1989). Illegality

on the

part of

the police

can

make

only

a small

difference

in

an already

small

effect.

Research

also shows

that some

of

the

standard

strategies

employed

against

crime

by the

police,

some

of which

push

the envelop

of legality,

are

of dubious

efficacy.

For example,

research

has

shown

that

only

about

1

of

proactive

traffic

stops

produced

evidence

of more serious criminality,

such

as

carrying

contraband

(Harris,

2001).

In

New

York

City,

arrests

were

made

in

about

10 of all

stop

and

frisks,

regardless

of

the race

of

the

person

stopped

(New

York

Attorney

General,

1999) A

study

by

the U.S.

Customs

Service

found

that

contraband

was

found

in 6

of

searches

of

both

black

and

white travelers

(1998).

When

racial

and

gender

profiling

was

eliminated

in

1998,

the

success rate

actually

improved

to

almost

16

(Cole and

Lamberth,

2001).

At

the

same

time,

analysis

of

data from

the

Maryland

highway

patrol in

response

to

concern

about

racial

profiling

in

stopping suspected drug traffickers found

that

hits

were

made

in

about

28 of

the

stops,

almost

exactly

the

same

for blacks

and whites

(Lam-

berth,

1999).

Contrary

to

police

predictions,

promulgation

of

Miranda

warnings

did

not

result

in

a decline

in

the

success of

criminal

prosecution

(American

Civil Liberties

Union,

2000;

Cassell

and

Hajman,

1996;

Leo,

1996;

Schulhoffer,

1996; Thomas,

1996). Nor

did the

enactment

by police

depart-

ments

of

policies

restricting

the use of

deadly

force

result

in

increases

in

crime

or injuries

to officers

or

decreases

in

arrest rates

(Fyfe,

1988;

Walker,

1993).

It is

also safe

to

say on

the

basis

of

research

into

the

efficacy

of police

strategies

and

tactics

since the President's

Commission

on

Law

Enforce-

ment

and

the

Administration

of

Justice

(1967)

that police

claim

greater


9/23

BAYLEY

success for their core

strategies

than is warranted

(Bayley, 1994;

Sherman,

2000). In a recent review of

research into the

effect of police

actions

on

crime,

John Eck

and Edward Maguire concluded that it

is

a myth

that the

police have

a

substantial, broad,

and

in epen ent

impact on

the

nation's

crime rate 2000:51). They

go

on to

say

If the

police

continue to apply

generic coercive measures, we

may

continually oscillate between unfair

but

marginally

effective police

practices,

and marginally fair

but

ineffec-

tive policing (p.

54).

In arriving at these

conclusions, Eck

and

Maguire

reviewed

studies of

variations

in the numbers

of

police,

community

polic-

ing

zero-tolerance

policing, COMPSTAT,

gun interdiction patrols, retail

drug

enforcement,

and

problem-oriented policing.

Not

only does the available evidence cast serious

doubt on the assump-

tion

that violating

the

rule-of-law by

the police makes

communities

safer,

it would

be

very

difficult for

the

police or

anybody

else to prove that

it

did.

In order to show

that

violating

the rule-of-law was efficacious,

it

would

be

necessary to

estimate

the marginal

deterrent gain

of such activity. Obvi-

ously there is no specific

deterrent gain

if innocent

people are punished,

although there could be a gain if the person sanctioned

was innocent in the

particular

instance

but

guilty in

others. In order to show

that the specific

deterrent

effect

of convictions

by questionable means was substantial,

it

would be necessary to

determine the

proportion

of

people

so

convicted

that

were truly

guilty.

Such research

is

impossible.

At the same

time, unjustified arrests and

dubious

prosecutions

might

have

a

general

deterrent effect, that

is, they

might demonstrate

to

would-

be

criminals that crime

is a

risky

business.

Reviews

of research

on general

deterrence

conclude

that

any such

effect is

small and tough

to prove

(Laub

and Sampson,

2002;

Nagin,

1998).

As Daniel Nagin

says despite the

intensity

of

the

research effort, the

empirical evidence is still

not

sufficient

for

providing

a

rigorous

confirmation

of

the existence of a

[general] deter-

rent

effect.

Perhaps

more

important,

the

evidence

is

woefully

inadequate

for

providing

a good estimate of the

magnitude

of whatever

effect

may

exist (p. 135). On

the

other

hand,

Tracey Meares and

Dan

Kahan have

argued

that controversial

policies such as curfews,

gang-loitering

regula-

tions, police order-maintenance,

and reverse stings

may strengthen

local

norms

against criminal

or

disorderly

behavior 1998).

They caution, how-

ever,

that such

practices

can undercut

local

norms of compliance

with law,

as well as undermining respect

for law generally.

In sum, the general deterrent

effect of questionable police

practices

is

doubtful and

certainly difficult to

estimate.

Research has also

shown

that arrests

in general

magnify

the

social

disor-

ganization

of families and

communities,

especially in communities where

the

proportion

of people affected by criminal

sanctions

is

high

(Rose

and


10/23

COMMENTARY

Clear, 1998 .

It is reasonable to

conclude

that unjust

arrests

and

convic-

tions

would

augment

this

effect. Contrary to the expectations of

the

police,

therefore,

law-enforcement

based on

questionable

legal practices may be

criminogenic.

The restorative justice movement presents a

larger

challenge

to the

belief

that violations of

the

rule-of-law

are useful

tactics in

law

enforce-

ment. John

Braithwaite

and others argue on the basis of a

growing

body of

evidence

that

informal

processes of

sanctioning

featuring community

conferences among police, victims,

suspects, and

their

respective support-

ers may be

more

effective at preventing

repeat

offending than

referral to

the formal criminal justice system (Braithwaite,

1988, 1998;

Strang, 2000 .

If this

is true,

then

the gains from questionable

law-enforcement practices

must we

weighed

not only

against acceptable ones,

but

also against the

benefits

of criminal

justice

processing

that

does not rely primarily on

deterrence.

It is often argued that the more serious the criminal

threat, the greater

may be the need for practices that violate the rule of law. his explains

why

states of emergency suspending the normal protections of law are

accepted

after natural disasters,

during

civil wars and guerilla

insurgencies,

and

in the face

of

rioting and widespread violent protests.

The

assumption

is that the

greater or more immanent the potential threat, thegreater the

value to

be derived from violating the rule-of-law. This

may be true in

some circumstances. But

even

here the evidence

is contradictory.

Cooper-

ation

between

the

public and

law-enforcement

authorities,

both police or

military, was considered

critical

in winning

the guerilla

insurgency in

Malaysia in

the

1950s

and

1960s,

Germany's

fight

against the

Red

Brigades

in the 1970s, and in Japan's campaign

against the radical

Red

Guards in

the

early 1970s.

Conversely,

if government can win people's

hearts and

minds,

deviant elements become isolated

and vulnerable. Law enforce-

ment

authorities,

even

when

faced with massive civil

unrest

and criminal-

ity, have learned that they must carefully

calculate

whether

their tactics

turn

the

public

into

coproducers of order

or co-conspirators of

defiance

(Kissinger,

1965;

Komer,

1972;

Thompson,

1969; West, 1985 .

VIOLATING

THE RULE-OF-LAW

REDUCES

ENFORCEMENT

EFFECTIVENESS

Violating the

rule-of-law impairs crime

control

by alienating

the

public.

This occurs

in two ways. First, violating

the

rule-of-law lessens

the

willing-

ness

of the

public to assist the police

in

carrying

out

their

assigned role.

Research

has shown again

and

again

that the

police

are almost

wholly

dependent on the public to

provide the

information

needed

to provide

safety and deter crime

(Bayley, 1994; Goldstein, 1990 . In countries like

the

United

States,

most police

work arises out of calls to

them

from

the


11/23

BAYLEY

public Parks et

al.,

1999; Reiss,

1971).

Police

are almost entirely depen-

dent on

the

public

to

tell them

when crime

occurs.

Without information

from the public,

crimes cannot

be

solved

and

criminals

successfully

prosecuted. Greenwood and Petersilia found

that if

the public

does

not identify

the

likely suspect

in

some particular way-

name, residence, relation to victim,

license

plate the

chances of

a

crime

being solved

by

the

police falls

to

less than 10 Greenwood et al.,

1977,

also Royal Commission

on Criminal

Procedure,

1981). Contrary

to myth

and media,

detectives

work from the identification of suspects to the

col-

lection

of evidence

rather

than from the collection of evidence to the

iden-

tification of suspects.

This operational

modality, practiced

by

detectives

the

world over, may be in

the process

of dramatic

transition.

The

advent of

DNA identification reduces

the

dependence of the police on public infor-

mation and

raises

the

importance of physical evidence. How

much this

technology will change

customary

investigation

procedures remains to be

seen.

Because DNA identification

is

so

conclusive,

it also

promises

to

make it more

difficult to convict

innocent persons through

overzealous

investigation.

As

a

result of

research

conducted during

the 1970s

and 1980s,

a consen-

sus emerged

among

scholars

and

police that

successful

crime

prevention

depends

more

on actions

the public

takes

than

on

anything the

police

can

do

on their

own Goldstein,

1990;

Rosenbaum,

1988;

Sparrow

et al., 1990;

Trojanowicz and Bucqueroux, 1990).

Research showed repeatedly that the

standard responses

of the police to crime

were not

effective-most nota-

bly random foot and

motorized patrolling Kelling et al.,

1974;

Police

Foundation,

1981), rapid response

to

emergency calls for

service

Bieck

and Kessler,

1977),

and improvements in technology Manning, 1992;

Morris

and

Heal,

1981).

Research

has also called

into

question the crime-

prevention value of so elementary

a policy as hiring

additional

police per-

sonnel

Bayley, 1994;

Levitt,

1994; Loftin and McDowall,

1982; Marvell

and Moody, 1996).

These findings do

not imply

that

there is

nothing the

police can do on

their own

to

prevent crime, but

that the assistance of

communities

makes

police efforts vastly more effective Sherman,

1986, 2001; Sherman et

al.,

1998).

The research

of the 1970s

and 1980s

that

called

into question customary

police

strategies

led

to an intense search

for alternative approaches.

What

emerged

was

community-

and

problem-oriented policing, both of

which

recognize

that

the public should be viewed

as

coproducers of

public safety

and that

the

criminal law

is an

awkward tool for resolving

crime and disor-

der

problems Goldstein,

1990;

Skogan and

Hartnet, 1997; Trojanowicz

and Bucqueroux,

1990). In

other

words,

the

choice

between

hard deter-

rent) and soft rule-of-law) policing

is

false.

In

order

to

become

effective


12/23

COMMENTARY

at

preventing

crime,

police need

to

be

protective

of

human

rights

so

that

they

can

enlist

the willing

cooperation

of the

public.

Policing by

consent,

to

use

the

British

slogan,

is

more

effective

at

crime

prevention

and

control

than

is

hard-nosed

law

enforcement

by

a

socially

isolated

police.

Second,

when the

police

violate

the

rule-of-law, they

not

only forfeit

the

cooperation

they

need,

but

they

also raise the

likelihood

that

encounters

with

the

public will

generate

hostility

and

violence. When

police act

beyond

the law,

they

lose

their

moral

authority.

This creates

a

tragically

reinforcing

cycle:

Abuse

by

the

police intensifies

public

suspicion

and hos-

tility toward

the

police;

suspicion

and

hostility

are

expressed

as sullenness

and disrespect;

this

prompts

the

police

to

exert

their

authority

more

explicitly,

perhaps

more

forcibly,

which

begins

the

cycle

over

again.

Actions

that

are

perceived

to

be arbitrarily

tough

may

encourage

the

very

sort of

confrontational

violence

they

are supposed

to

discourage.

This

pat-

tern

has been

founded

repeatedly in

observations

of

the

interactions

between

the police

and

African-Americans

in

the

United

States

(Bayley

and

Mendelsohn,

1969;

Brown,

1981; Kamisar,

1964;

Maclin

1991;

Sykes

and

Brent,

1983).

In

sum, extensive

research

has

shown

that

when the

police alienate

the

public,

their ability

to

enlist

the

cooperation

of the

public

declines

and

hostility

toward

the police

in

face-to-face

encounters

increases.

In neither

case

is public

safety

well

served.

VIOLATING

THE RULE-OF-LAW

WEAKENS

THE

AUTHORITY

OF LAW

Research

has

also shown

that

the

way

in

which laws

are enforced

affects

perceptions

of

their

legitimacy

and

the

willingness

of

people

to

obey them

(Sherman,

2000).

For

example,

Raymond

Paternoster

et

al.

found

that

the

risk of repeat

offending

for

people

arrested

for domestic

violence

was

less

when they

had

not been handcuffed

in front

of the

victim

and when

the

police had

taken time

to

listen

to

them as

well as

to

the

victim

1997).

Research

by Tom

Tyler

shows

that people

are more

likely

to

obey

the

law

if

they

believe that

sanctions

will

be

delivered

in a

procedurally

fair way.

His

theory

is that

compliance

with

the

law

depends

on

perceptions

of

legit-

imacy;

perceptions

of

legitimacy in

turn

depend

on

perceived

fairness of

criminal

justice

agents;

and

perceived

fairness

depends

on

the manner

of

treatment,

which

is

composed

of

assessments

of

the

motives, quality

of

treatment, neutrality,

and

reasonableness

of the

sanctioner

(Tyler,

1997).

Tyler

concludes (p.

178):

Police

officers

and judges

who recognize

and

respond to

people s

normative

concerns

can

exercise

their

authority

more

effectively;

the

rules

and

decisions

will

be

accepted

and obeyed

voluntarily.


13/23

BAYLEY

Employing

a

quasi-experimental

design, Makkai

and Braithwaite found

that

compliance

with sanctions for violations

of

quality

standards in nurs-

ing

homes

was

sharply

affected by the

way in

which

the sanctions

were

applied

1994). If they were

applied

with

demonstrated

tolerance

and

understanding

for the

position of the

violator rather

than with personal

condemnation, they

were more likely

to

be

followed.

In short, a growing

body

of research

suggests that

compliance

with the

law

is

affected by the

way

in which

it

is

applied as

well as by its severity.

Rules must

be enforced,

but

they will be

accepted

more

readily

if

applied

with

consideration

for the sensibilities

of the

people

involved.

VIOLATING

THE

RULE-OF-LAW

SCAPEGOATS

THE POLICE

When police

take the law into

their own hands to control crime,

they are

implicitly

shifting

responsibility for

crime wholly

onto their own shoulders.

If

crime arises

largely

out

of social deprivation and

disorganization,

as

criminologists

have shown,

then violations of the rule-of-law

by police are

an attempt

to compensate

for

deficiencies in

social policies over which

the

police have

no control. Similarly,

if they resort

to

extra-legal

tactics

to

make

up

for deficiencies

of law and legal procedures, they

are again

trying

to

remedy inadequacies

they did

not

create.

By abridging

the rule-of-law,

police not

only

take responsibility

fo r

crime

onto

themselves,

they also deflect attention to themselves

and away

from the negligence of

others. If

crime is out

of

control, the police should

not accept

responsibility

for

it by exceeding their mandate.

They should

insist,

along

with an

aroused

citizenry, that social policies

be

changed or

that laws be amended.

Ironically, police know

that there is little they can

do on

their own

to prevent

crime

against

entrenched

criminogenic

social

conditions.

They often

say

that their efforts are like

a bandaid on can-

cer. Violating the

law

to make up for policy deficiencies, ironically, plays

into the very criticism

police deplore.

VIOLATING

THE

RULE-OF-LAW

DEPRESSES

MORALE

AND

MAKES

THE

POLICE

JOB

LESS

SATISFYING

Violating

the rule-of-law changes the

character of police organizations

in

several

unfortunate ways.

First,

it puts

enormous

pressure

on

all

employees to hide

what

is going

on and, in so doing,

puts them at risk.

The

organization

becomes

hostage

to

its own deviants

(Skolnick and Fyfe

1993).

Second,

violating

the rule-of-law inevitably

invites

outside

correction

when misdeeds

are

discovered.

This creates

a

bunker mentality

as

police


14/23

COMMENTARY

organizations

try

to fend-off intervention.

Feeling besieged,

police

agen-

cies become less willing

to

be

open

and welcoming

to

the public and

its

representatives

(Bayley,

1983).

Third,

in

an

effort

to

appear

accountable, police work

becomes more

rule-bound

and

discipline

becomes

more

formalistic. Police

officers

are

given less

responsibility,

especially at

lower ranks. Initiative becomes sec-

ondary to errorless performance

(Bayley,

1996b).

Fourth,

the

relations between supervisors and

subordinates

become

strained

and

adversarial

(lanni and

Reuss-lanni,

1983).

They

are no longer

on the same

side,

but

opponents in a depressing game

of hide-and-seek.

Wariness

replaces

collegiality.

In general, illegality in

the

service of public safety

makes

policing a fur-

tive,

anxious activity. It

undermines

pride, which

is

the

basis

of

job satis-

faction.

Furthermore,

pride is essential to self-discipline, which is

the

most

effective means of achieving

exemplary

performance (Bayley, 1993).

VIOLATING THE

RULE-OF-LAW WASTES COMMUNITY

RESOURCES

In

countries

where redress under law

is

possible, revelations of law-

enforcement

excesses

jeopardize both past and future prosecutions. It has

been

estimated that

as

many

as 1,500

convictions

in

Los

Angeles

may

be

revisited and

vacated

as a

result

of

the

illegal activities of a handful of

officers the Ramparts subdivision (Skolnick, 2001).

Furthermore, in juris-

dictions

where people

whose rights have been

violated

by the police may

sue

the

appropriate

governments

for damages, the

monetary costs to the

community may be substantial. The costs of

civil

liability

stemming

from

police

misbehavior in

New York City since 1994,

for

example, has

been

176.9 million,

not

including the leg l costs involved in opposing such

actions. The

Los

ngeles Times

has estimated that

the city s

liability

in the

Rampart

subdivision s scandal could exceed

125

million

(2000).

In

smaller jurisdictions,

such awards may bankrupt governments.

Violating

the rule

of

law

raises

the

costs of law enforcement, wasting

investments already made in criminal prosecutions and diverting money

that

might

be used

for

crime

prevention.

VIOLATING THE

RULE-OF-LAW

PLACES POLICE OFFICERS

AT RISK

Most obvious

of all,

the personal

cost to

officers

who are

caught violat-

ing the rule of

law

can

be

catastrophic. For officers

who

do this

for their

own personal gain-money, promotions, recognition-there

should

be no

sympathy. But for

officers who

have engaged in questionable practices

because they believe

such practices enhance

the effectiveness

of law


15/23

BAYLEY

enforcement, the situation

is morally

more ambiguous.

In a perverse

sense,

they are behaving

heroically,

placing

themselves at

risk

for the pre-

sumed

sake of public

safety.

This essay is

written

expressly

to

arm such

officers against exactly this misconception,

so

that

they

will

not

risk

so

much for

so little.

CONCLUSION

In

democratic

societies, the objective of

law

enforcement is to

maximize

both

deterrent criminal effectiveness and

conformity

to the

rule-of-law

based on recognized

human

rights. The

common assumption

is that these

goals

are

in conflict. I have given seven

reasons

why I believe this view

is

mistaken. The goals

of

effectiveness and

rectitude

in

policing are

not,

to

use technical language, orthogonal.

How

solid is

the evidence

that supports

this view?

Some is very solid,

especially

the research on the uncertain utility of standard

police

practices.

Also strong

is

the

research on

the

doubtful

benefits

of specific deterrence.

Unfortunately, the

evidence for

several other

arguments is either

weak

or

nonexistent.

For example,

Tom Tyler s work on

the

relationship between

compliance

with the law and the behavior of criminal justice authorities

is

projective, based

on

telephone interviews with individuals about minor

law

violations. Similarly,

the

advantages

of community-oriented

crime

pre-

vention

approaches have not been unambiguously

demonstrated (Rosen-

baum,

1994;

Skogan

and

Harnett, 1997 .

It

can be argued,

on

this assessment, that

the crime-control

value

of

strict adherence to

the rule-of-law

has

not been

conclusively

demon-

strated. However, the

burden of

proof, in

my

opinion, is

on the

other side.

There

is even

l ss

evidence

that

illegal

strategies

are

more

efficacious.

The

best

available

evidence

shows that

the immediate benefits

of violating the

rule-of-law are at best small, more likely mythical,

and

that the

long-term

costs are substantial.

On

balance,

I

conclude

that

it

is

in

the

interests of

the

police,

both individually and collectively, to adhere to

the rule-of-law.

There may

be

circumstances where violating

it are

justified,

but

such situa-

tions are rare and

the

value of doing so

in

any

particular case should

not

be assumed. In short,

a stronger, evidence-based

case can be

made

that

defending human

rights enhances

police

effectiveness than that doing

so

hampers it. Illegality

in policing is a risky

and generally

unproductive

strategy.

What research might be

undertaken that would

make

a

more compel-

ling

case

for

the

benefits

to

police of adhering scrupulously to

the

rule-of-

law? The

review of research presented in this

essay suggests that

the

fol-

lowing

questions

have

not

attracted

the

attention they deserve.

1) When police

violate the rule-of-law, do they recognize they are


16/23

COMMENTARY

doing

so?

Is the

premise of

this

essay correct that

police

officers

generally know what

the

law requires and

violate it with a sense

of

guilt?

2)

How much do

the

police gain

in

terms of

specific

deterrence from

any of

their

crime-control

strategies,

but especially

those that

threaten

the rule

of law, such

as pedestrian

stop-and-frisk, ran-

dom motor-vehicle stops,

and

interdiction

profiling?

3) How close is the

connection between police scandals

and public

alienation?

In

particular,

does

police

misbehavior cause

the pub-

lic to

withhold support in ways that affect police

effectiveness, for

example, through failing to

report

crime, unwillingness to

identify

likely suspects,

not cooperating

with crime

prevention programs,

and withholding testimony in criminal trials.

4)

To

what extent are

public attitudes

toward the

police affected

by

the ability of the police to

clear

crimes

and make arrests? Fail

ing to catch

criminals is known only

to

a few, except

in celebrated

cases;

publicity about misbehavior

is

known

not only

to those

immediately involved,

but

also

runs

the

grave

risk

of

becoming

known to

the

wider

community.

A few

well-publicized

scandals

may

affect public perceptions of

the

police

far

more

than a

host

of

successful

investigations.

5)

Does

the

manner in which the law is

enforced

exert a

powerful

effect

on the likelihood

of

re-offending?

What factors affect this

relationship?

6) To what

extent

is morale and,

by

extension,

job satisfaction,

affected by

knowledge

of

violations

of

the

rule-of-law within

police forces? Furthermore,

does the occurrence of such viola-

tions

affect the character of discipline

within

the

force and

nature

of the relations among ranks, especially

between supervisors

and

supervisees?

7) How

much

variation is

there

with

respect

to tolerance of right-

eous

illegality within

as

well as

between police forces?

And

what

are the factors

that determine the differences?

If my

assumption

is correct

that police

often

violate

the

rule-of-law

because they

believe

it improves their ability

to

control and prevent crime,

then gathering

additional evidence

that

it

does not

is

an

important

under-

taking. But

it

is

clearly not

a

sufficient response to the problem. The infor-

mation

must be used so that it

changes behavior. How

is

this to

be done?

One

possibility would be

to

broaden

the approach

to the teaching

of

law

and ethics

to

police

recruits.

In addition

to

instructing them in the require-

ments of due process

and the

value

of

the

rule-of-law

in democratic socie-

ties,

they would

be

presented with

the

utilitarian

arguments

made

in this


17/23

BAYLEY

paper.

In effect,

the

tradeoff

problem

would

be

met head on with

police

officers

at the very beginning

of

their

careers.

At the same time, I

am doubtful whether changing

the cognitive under-

standing

of police

officers

individually

will

be sufficient to offset

the

occu

pational

culture

within which

they

work.

It

is

unrealistic to

expect

individual

police

officers,

no matter

how well

instructed

in the arguments

made

in this

essay, to stand

against the

crime-control

understandings

and

expectations of their

colleagues, the public,

and

their

senior

officers.

The

more

effective

strategy,

then, for

changing

the

mindset of police

officers is

to

convince

the leaders of

police

agencies

that

violating the rule-of-law

is

not

a

sound law enforcement strategy,

so

that

they will then

be

embold-

ened to

change the moral tone,

disciplinary mechanisms,

management

pri-

orities,

and

career

incentives within the

organization. Research

has

shown

time and

again

that

organizations

are the most

powerful

determinants

of

the behavior of people

within

them

Bayley, 1996b; Hall,

1991; Walker,

1993).

Cognitive instruction

of the

kind suggested here should

be focused

initially and

repeatedly on

senior

police

executives.

If

they

can

be

con-

vinced

that

violating

the

rule-of-law

is

not useful

in

achieving

the goals of

police organizations,

they will

find

the

means to convince the

rank-and-

file.

The conclusion

of

this essay,

then,

supported

by current

social science

research,

is

that

violating

the

rule-of-law

in

order

to

control

crime

is

mis-

taken and that

the best

place to

start

in

reorienting

police

practices is

with

the managers

of

police

agencies.

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The Village. Madison,

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David Bayley

is

a

Distinguished

Professor

in

the School

of Criminal

Justice,

State

University

of

New

York at Albany.

A specialist

in

international criminal

justice,

with

particular

interest

in policing,

he has done

extensive

work

in India,

Japan,

Australia,

Canada,

Britain, Singapore,

and

the

United

States.

His work

has

focused

on strategies

in policing,

police

reform,

accountability,

foreign

assistance

to

police

agencies,

and

the

tactics

of

patrol

officers.

Professor

Bayley s

most recent

books are

What

orks

in

Polic

ing

(1998) and

Police

for

the

Future

(1994),

both

published

by

Oxford

University

Press,

New York.

Supported

by grants from the

National

Institute

of Justice

and

the

MacAr-

thur Foundation,

he is

currently

engaged

in a

three-year research

project studying

the

lessons-to-be-learned

about

assisting foreign

countries

to develop

effective

democratic

police

forces.

Professor

Bayley

earned a

B.A.

degree

at Denison

University

(1955),

an

M.A.

at Oxford

University

(1957), and

a Ph.D. at

Princeton University

(1960).


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