American policing at a crossroads: Unsustainable policies and the procedural justice alternative

Journal of Criminal Law and Criminology

Volumn 101, Issue 2, 2011, Pages 335-374

  Schulhofer, Stephen J ^a   Tyler, Tom R ^a   Huq, Aziz Z ^b  

^a NEW YORK UNIVERSITY   (United States)

^b UNIVERSITY OF CHICAGO   (United States)

Author keywords

[No Author keywords available]

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EID: 84855923691     PISSN: 00914169     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (118)

1. Gates was arrested at his Cambridge home by a police officer who suspected him of a house break-in. Though circumstances were disputed, many whites assumed the officer would not have acted without good reason, while others (especially blacks) found it unlikely that a middle-aged professor, standing on the porch of his own home, would have been viewed with suspicion and then arrested if he had been white. See CAMBRIDGE REVIEW COMM., MISSED OPPORTUNITIES, SHARED RESPONSIBILITIES: FINAL REPORT OF THE CAMBRIDGE REVIEW COMMITTEE 16-21 (June 2010) [hereinafter CAMBRIDGE REVIEW COMMITTEE], available at http://www.cambridgema.gov/CityOfCambridge_Content/documents/Cambridge Review_FINAL.pdf; Cambridge Police Dep't, Incident Report # 9005127, July 16, 2009, available at http://www.samefacts.com/archives/ Police report on Gates arrest.PDF (detailing the officer's account); Dayo Olopade, Skip Gates Speaks, ROOT (July 21, 2009), http://www.theroot.com/views/ skip-gates-speaks?page=0,1 (for Gates's view).
2. In one careful survey, less than twenty percent of African Americans considered the American legal system fair. Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities, 73 S. CALIF. L. REV. 1219, 1247 (2000). After President Obama criticized the officer's actions, a poll found that twice as many whites as blacks disapproved of the President's comments. See PEW RESEARCH CTR., OBAMA'S RATINGS SLIDE ACROSS THE BOARD 15-17 (2009), available at http://people-press.org/report/532/obamas-ratings-slide. Similar findings recur throughout the literature.
3. See generally MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN AN AGE OF COLORBLINDNESS (2010); MARC MAUER, RACE TO INCARCERATE (rev. ed. 2006).
4. See, e.g., Coleman v. Schwarzenegger, No. CIV S-90-0520, 2009 WL 2430820, at *84 (E.D. Cal. Aug. 4, 2009) ("[T]he state's continued failure to address the severe crowding in California's prisons would perpetuate a criminogenic prison system that itself threatens public safety."), appeal docketed sub nom Schwarzenegger v. Plata, 130 S. Ct. 3413 (2010); Jeffrey Fagan, Valerie West & Jan Holland, Reciprocal Effects of Crime and Incarceration in New York City Neighborhoods, 30 FORDHAM URB. L. J. 1551, 1554 (2003).
5. See, e.g., Wyatt Buchanan, Has the Golden State Gone Bankrupt?, S.F. CHRON., Feb. 22, 2010, at A1, available at http://articles.sfgate.com/2010-02-22/news/17950763_1_bankruptcy-treasurer-bill-lockyer-golden-state; Larry Gordon, Gale Holland & Mitchell Landsberg, Lowered Expectations for Model of Higher Education, L.A. TIMES, July 31, 2009, at A1, available at http://articles.latimes.com/2009/jul/31/local/me-college-cuts31.
6. Randal C. Archibold, Driven to a Fiscal Brink, A State Throws Open The Doors to Its Prisons, N.Y. TIMES, Mar. 24, 2010, at A14. In a 2005 analysis, the three-year recidivism rate for California offenders released from incarceration and returned to prison or jail after conviction for new crimes was 37%. An additional 32% of released offenders were returned to custody for technical parole violations. See Ryan G. Fischer, Are California's Recidivism Rates Really the Highest in the Nation? It Depends on What Measure of Recidivism You Use, THE BULLETIN, UC Irvine Center for Evidence-Based Corrections, Sept. 2005, at 2, available at http://ucicorrections.seweb.uci.edu/pdf/bulletin_2005_vol-1_is-1.pdf.
7. See, e.g., Nicholas Riccardi, Laws Loosen to Free Inmates, L.A. TIMES, Sept. 5, 2009, at A20 (discussing states where cost constraints have forced prison releases; Kentucky granted early release to 3,000 inmates).
8. See, e.g., Joel Rubin, LAPD Cuts Killed Terrorism Unit, L.A. TIMES, May 6, 2010, at AA3; Maya Rao, N.J. Layoffs Grow in Public Sector, PHILA. INQUIRER, Apr. 13, 2010, at B04 (describing police force cuts in New Jersey); Nicole Marshall, TPD Making Fewer Arrests, TULSA WORLD, Mar. 28, 2010, at A1 (describing layoffs of 124 Tulsa police officers); Bobby White, Cuts to Police Force Test a Safer Oakland, WALL ST. J., July 11, 2009, at A4 (describing decision to lay off nearly 20% of Oakland police force and similar cuts throughout California and other states); cf. David W. Chen & Javier C. Hernandez, Putting Blame on Albany, Mayor Unveils Budget With Heavy Cuts, N.Y. TIMES, May 7, 2010, at A22 (describing a budget-driven plan to cut 892 police officers, later reversed-at the expense of teachers and other city employees-after the failed Times Square bombing plot); David Seifman & Dan Mangan, A Cop Priority Thanks to Thug-NYPD Spared Slashes After Terrorist Bust, N.Y. POST, May 6, 2010, at 4 (same).
9. See TO PROTECT AND TO SERVE: POLICING IN AN AGE OF TERRORISM (David Weisburd et al. eds., 2009); Matthew C. Waxman, Police and National Security: American Local Law Enforcement and Counter-terrorism After 9/11, 3 J. NAT'L SECURITY L. & POL'Y 377, 385-91 (2009).
10. See Eric Monkkonen, History of Urban Police, 15 CRIME & JUST. 547, 549-52 (1992). In Britain, where modern policing originated in 1829 at the behest of Sir Robert Peel, the emphasis was different, and the police function was not embedded in municipal politics. See generally WILBUR R. MILLER, COPS AND BOBBIES: POLICE AUTHORITY IN NEW YORK AND LONDON (1999).
11. See generally JONATHAN RUBINSTEIN, CITY POLICE (1973); M. Craig Brown & Barbara D. Warner, Immigrants, Urban Politics, and Policing in 1900, 57 AM. SOC. REV. 293 (1992).
12. WILLIAM KER MUIR, JR., POLICE: STREETCORNER POLITICIANS 271 (1977) (describing this phenomenon but by no means endorsing it).
13. JEROME H. SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY (1966).
14. See DAVID ALAN SKLANSKY, DEMOCRACY AND THE POLICE 93 (2008) (discussing "[t]he [p]reoccupation with [l]egitimacy").
15. See PRESIDENT'S COMM'N ON LAW ENFORCEMENT & ADMIN. OF JUSTICE, THE CHALLENGE OF CRIME IN A FREE SOCIETY (1967).
16. See David Alan Sklansky, Police and Democracy, 103 MICH. L. REV. 1699, 1756-62 (2005) [hereinafter Sklansky, Police and Democracy] (describing the movement in favor of participatory democracy in the 1960s and 1970s).
17. See Mark Harrison Moore, Problem-solving and Community Policing, in MODERN POLICING 99, 117 (Michael Tonry & Norval Morris eds., 1992) (noting that police "became cut off from the aspirations, desires, and concerns of citizens").
18. See LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 379-411 (2000) (summarizing case law); cf. Sklansky, Police and Democracy, note 19, at 1749 (noting criticism of Warren Court precedents).
19. See generally JEROME H. SKOLNICK & DAVID H. BAYLEY, THE NEW BLUE LINE (1986) (describing police innovation in six American cities); at 10-11 (noting "the beginnings of a social reconstruction of American policing" and "a strong inclination to recognize the significance of community trust and cooperation"); (characterizing the new approach as "community-oriented policing").
20. See generally Moore, note 20; Jerome Skolnick & David Bayley, Theme and Variation in Community Policing, 10 CRIME & JUST. 1 (1988). Despite its many purely cosmetic features, the community policing movement also wrought many real and important changes. See David Alan Sklansky, The Persistent Pull of Police Professionalism (July 2010) (unpublished manuscript) (on file with authors).
21. GEORGE L. KELLING & CATHERINE M. COLES, FIXING BROKEN WINDOWS: RESTORING ORDER AND REDUCING CRIME IN OUR COMMUNITIES 160 (1996).
22. WESLEY G. SKOGAN, DISORDER AND DECLINE: CRIME AND THE SPIRAL OF DECAY IN AMERICAN NEIGHBORHOODS 75 (1990).
23. The debate is vividly presented in the 1974 documentary film Hearts and Minds, directed by Peter Davis. HEARTS AND MINDS (BBS Productions & Rainbow Releasing 1974); see also Elizabeth Dickinson, A Bright Shining Slogan, FOREIGN POL'Y, Sept./Oct. 2009, at 29.
24. See, e.g., Lara M. Dadkhah, Empty Skies over Afghanistan, N.Y. TIMES, Feb. 18, 2010, at A27.
25. Nile Gardiner, Bush Demonstrates That Hard Power Matters, DAILY TELEGRAPH, Dec. 27, 2008, at 33.
26. Charles C. Krulack & Joseph P. Hoar, Fear Was No Excuse To Condone Torture, MIAMI HERALD, Sept. 11, 2009, at 25A.
27. See Herring v. United States, 129 S. Ct. 695, 700-01 (2009) (quoting Illinois v. Krull, 480 U.S. 340, 352-53 (1987) (internal quotation marks omitted); City of Chicago v. Morales, 527 U.S. 41 (1999) (plurality opinion) (discussing Chicago crackdown on "gang-loitering"); Dadkhah, at A27 (arguing for aggressive use of airpower in Afghanistan); John F. Harris, Mike Allen & Jim VandeHei, Cheney Warns of New Attacks, POLITICO (Feb. 4, 2009, 6:12 AM), http://www.politico.com/news/stories/0209/18390.html.
28. JOHN S. DEMPSEY & LINDA S. FORST, AN INTRODUCTION TO POLICING 8 (5th ed. 2010).
29. JEROME H. SKOLNICK & JAMES J. FYFE, ABOVE THE LAW: POLICE AND THE EXCESSIVE USE OF FORCE 95 (1993). Skolnick and Fyfe are quick to note, however, that the tough style is not always successful.
30. BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 2 (2001).
31. James Q. Wilson & George L. Kelling, Broken Windows: The Police and Neighborhood Safety, ATLANTIC MONTHLY, March 1982, at 29.
32. See William Lyons, Partnerships, Information and Public Safety, 25 POLICING INT'L J. POLICE STRAT. & MGMT 530, 534 (2002) (describing Seattle experience); cf. WESLEY G. SKOGAN & SUSAN M. HARTNETT, COMMUNITY POLICING, CHICAGO STYLE 113-14 (1997) (describing the interactive nature of Chicago's community policing program "beat meetings").
33. See HARCOURT, note 36, at 6-11, 59-121; see also Hubert Williams & Antony M. Pate, Returning to First Principles: Reducing the Fear of Crime in Newark, 33 CRIME & DELINQ. 53, 67 (1986) (noting that order-maintenance policies in Newark failed to achieve their goals); Frank Zimring, The City that Became Safe: New York and the Future of Crime Control, SCI. AM. (forthcoming August 2011) (manuscript on file with authors).
34. See Zimring, at 30 (arguing that crime-control successes in New York City cannot be attributed to aggressive quality-of-life law enforcement, that in fact the NYPD, its rhetoric notwithstanding, de-emphasized this tactic, and that at most only one aspect of New York's aggressive street-stops approach (the targeting of certain "hot-spots") may be responsible for New York's crime-control gains).
35. JOHN D. MCCLUSKEY, POLICE REQUESTS FOR COMPLIANCE: COERCIVE AND PROCEDURALLY JUST TACTICS 171 (2003).
36. MAX WEBER, ON LAW IN ECONOMY AND SOCIETY 336 (Max Rheinstein ed., Edward Shils & Max Rheinstein trans., 1954) (noting that "every domination... always has the strongest need of self-justification through appealing to the principles of legitimation"); (describing legitimacy as prestige resting on beliefs of members of a political community).
37. Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 ANN. REV. PSYCHOL. 375, 377 (2006).
38. Daniel Nagin, Criminal Deterrence Research at the Outset of the Twenty-First Century, 23 CRIME & JUST. 1, 12-15 (1998) (summarizing studies on the effect of sanctions on criminal deterrence).
39. See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 59 (rev. ed. 2006) [hereinafter TYLER, WHY PEOPLE OBEY]; cf. Clemens Kroneberg, Isolde Heintze & Guido Mehlkop, The Interplay of Moral Norms and Instrumental Incentives in Crime Causation, 48 CRIMINOLOGY 259, 283 (2010) (suggesting that although normative mechanisms are more important, some people only respond to incentives).
40. See Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities?, 6 OHIO ST. J. CRIM. L. 231, 270-71 (2008).
41. See Kroneberg, Heintze & Mehlkop, note 46, at 259 (using survey data to determine the influence of different factors upon compliance); Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 468 (1997) (summarizing research that indicates an alternative explanation for obedience of the law because "fear of arrest and incarceration in prison is not effective in causing people to obey the law").
42. See Tom R. Tyler, Legitimacy and Criminal Justice: The Benefits of Self-Regulation, 7 OHIO ST. J. CRIM. L. 307, 309 (2009) [hereinafter Tyler, Legitimacy] (reviewing literature to this effect).
43. See TOM R. TYLER, PSYCHOLOGY AND THE DESIGN OF LEGAL INSTITUTIONS 36-43 (2007); Jason A. Colquitt et al., Justice at the Millennium: A Meta-Analytic Review of 25 Years of Organizational Justice, 86 J. APPLIED PSYCHOL. 425, 426 (2001).
44. See TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW: ENCOURAGING COOPERATION WITH THE POLICE AND THE LAW (2002); Kimberly Belvedere, John L. Worrall & Stephen G. Tibbetts, Explaining Suspect Resistance in Police-Citizen Encounters, 30 CRIM. JUST. REV. 30 (2005); Ben Bradford, Jonathan Jackson & Elizabeth A. Stanko, Contact and Confidence: Revisiting the Impact of Public Encounters with the Police, 19 POLICING AND SOC'Y 20 (2009); Jacinta M. Gau & Rod K. Brunson, Procedural Justice and Order Maintenance Policing: A Study of Inner-City Young Men's Perceptions of Police Legitimacy, 27 JUST. Q. 255 (2010); Lyn Hinds, Youth, Police Legitimacy and Informal Contact, 24 J. POLICE & CRIM. PSYCHOL. 10 (2009); Stephen D. Mastrofski, Jeffrey B. Snipes & Anne E. Supina, Compliance on Demand: The Public's Response to Specific Police Requests, 33 J. RES. CRIME & DELINQ. 269 (1996); Michael D. Reisig & Meghan Stroshine Chandek, The Effects of Expectancy Disconfirmation on Outcome Satisfaction in Police-Citizen Encounters, 24 POLICING: INT'L J. POLICE STRATEGIES & MGMT. 88 (2001); Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 CRIME & JUST. 431 (2003).
45. Robert MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness, 1 ANN. REV. L. & SOC. SCI. 171, 173 (2005).
46. See, e.g., RANDALL KENNEDY, RACE, CRIME, AND THE LAW 301-10 (1996) (emphasizing "the sector of the black law-abiding population that desires more rather than less prosecution and punishment for all types of criminals"); Dan M. Kahan & Tracey L. Meares, The Coming Crisis of Criminal Procedure, 86 GEO. L.J. 1153, 1169-70 (1998) (same).
47. WESLEY G. SKOGAN, DISORDER AND DECLINE 15, 118 (1990).
48. See Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing, 37 LAW & SOC'Y REV. 555 (2003). Some suggest that this line of argument glosses over a causal ambiguity: Citizens' perceptions of procedural fairness may be colored by [their] views about the legitimacy of the police or courts. " David J. Smith, The Foundations of Legitimacy, in LEGITIMACY AND CRIMINAL JUSTICE: INTERNATIONAL PERSPECTIVES 29, 32-33 (T. Tyler et al. eds. 2007). If so, perceived legitimacy may shape perceptions of procedural fairness, rather than the other way around. The legitimacy research has used a variety of strategies to exclude this possibility. See, e.g., Tyler & Fagan, note 47, at 251 (using panel data to measure judgments of legitimacy and procedural justice before and after encounters with the police).
49. See Tom R. Tyler, Policing in Black and White: Ethnic Group Differences in Trust and Confidence in the Police, 8 POLICE Q. 322, 336 (2005).
50. See, e.g., Lyons, note 39; Tyler & Fagan, note 47; Tom R. Tyler, Stephen J. Schulhofer & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counter-Terrorism Policing: A Study of Muslim Americans, 44 LAW & SOC'Y REV. 365 (2010).
51. See Robert J. Sampson, S. W. Raudenbush & F. Earls, Neighborhoods and Violent Crime: A Multilevel Study of Collective Efficacy, 277 SCIENCE 918 (1997).
52. See Richard Delgado, Law Enforcement in Subordinated Communities: Innovation and Response, 106 MICH. L. REV. 1193 (2008).
53. See Lyons, (profiling and other tactics resented in minority communities "make it more difficult for citizens in those communities with the information we seek to communicate [it] effectively.... Effective partnerships... only produce the desired forms of cooperation when they operate as a mechanism to increase understanding, trust and respect among the parties.... ").
54. City of Chicago v. Morales, 527 U.S. 41, 49-50 (1999) (plurality opinion).
55. Jeffrey Fagan, Amanda Geller, Garth Davies & Valerie West, Street Stops and Broken Windows Revisited: The Demography and Logic of Proactive Policing in a Safe and Changing City, in RACE, ETHNICITY, AND POLICING 309 (Stephen K. Rice & Michael D. White eds., 2010).
56. See Andrew Gelman, Jeffrey Fagan & Alex Kiss, An Analysis of the New York City Police Department's "Stop-and-Frisk" Policy in the Context of Claims of Racial Bias, 102 J. AM. STAT. ASS'N 813, 813-14 (2007) (finding that African-American and Hispanic pedestrians in New York City were stopped more frequently than whites, even after controlling for race-specific estimates of criminal offending).
57. In Los Angeles, for example, in 2003-2004 there were 4,569 stops per 10,000 African-American residents, but only 1,750 stops per 10,000 white residents. See IAN AYRES & JONATHAN BOROWSKY, A STUDY OF RACIALLY DISPARATE OUTCOMES IN THE LOS ANGELES POLICE DEPARTMENT 5-7 (2008), available at http://www.aclu-sc.org/documents/view/47.
58. Reed Collins, Strolling While Poor: How Broken-Windows Policing Created a New Crime in Baltimore, 14 GEO. J. ON POVERTY L. & POL'Y 419, 426 (2007); see also Delgado, K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Order-Maintenance Policing, 33 N.Y.U. REV. L. & SOC. CHANGE 271, 313 (2009).
59. Jeffrey Fagan & Alex R. Piquero, Rational Choice and Developmental Influences on Recidivism Among Adolescent Felony Offenders, 4 J. EMPIRICAL LEGAL STUD. 715, 718-19 (2007).
60. See, e.g., MARTIN S. JANKOWSKI, ISLANDS IN THE STREET: GANGS AND AMERICAN URBAN SOCIETY 193-202 (1991); Debra Livingston, Police Discretion and the Quality of Life in Public Spaces, 97 COLUM. L. REV. 551, 640-42 (1997).
61. See text at notes 54, 56; Jeffrey Fagan & Tom R. Tyler, Legal Socialization of Children and Adolescents, 18 SOC. JUST. RES. 217 (2005); see also Tracey Meares, The Legitimacy of Police Among Young African-American Men, 92 MARQ. L. REV. 651 (2009). To be sure, further research is needed to clarify the links between adolescent experience and adult attitudes toward authority.
62. See Anthony A. Braga, David M. Kennedy, Elin J. Waring & Anne Morrison Piehl, Problem-Oriented Policing, Deterrence, and Youth Violence: An Evaluation of Boston's Operation Ceasefire, 38 J. RES. CRIME & DELINQ. 195, 198, 220 (2000).
63. See Mark Schoofs, New Intervention: Novel Police Tactic Puts Drug Markets out of Business, WALL ST. J., Sept. 27, 2006, at A1.
64. See Andrew V. Papachristos, Tracey L. Meares & Jeffrey Fagan, Attention Felons: Evaluating Project Safe Neighborhoods in Chicago, 4 J. EMPIRICAL LEGAL STUD. 223, 254 (2007).
65. See Meares, note 72, at 665 & n.95; see also MARK A.R. KLEIMAN, WHEN BRUTE FORCE FAILS: HOW TO HAVE LESS CRIME AND LESS PUNISHMENT (2009) (discussing strategies to reduce crime with less reliance on arrest and incarceration).
66. Jon B. Gould & Stephen D. Mastrofski, Suspect Searches: Assessing Police Behavior Under the U.S. Constitution, 3 CRIMINOLOGY & PUB. POL'Y 315, 345 (2004).
67. See, e.g., Banks v. United States, 540 U.S. 31, 41 (2003) (discussing requirement of "reasonable wait time"); Richards v. Wisconsin, 520 U.S. 385, 394 (1997) (finding failure to knock and announce permissible only when officers have reasonable suspicion that doing so would be dangerous or futile); Wilson v. Arkansas, 514 U.S. 927, 929 (1995) (holding that common law "knock and announce" requirement forms part of the Fourth Amendment reasonableness inquiry).
68. The obligation to provide a copy of the warrant is typically grounded in statutes or court rules but generally has not been treated as a Fourth Amendment requirement. See WAYNE R. LAFAVE, JEROLD H. ISRAEL & NANCY J. KING, CRIMINAL PROCEDURE § 3.4, at 177-78 (3d ed. 2000).
69. City of West Covina v. Perkins, 525 U.S. 234 (1999) (basing this requirement on Fourteenth Amendment due process rather than the Fourth Amendment).
70. See, e.g., Wilson, 514 U.S. at 931-33 (tracing lineage of the knock-and-announce rule back to the thirteenth century and finding that it "was woven quickly into the fabric of early American law").
71. See, e.g., United States v. Villegas, 899 F.2d 1324, 1336 (2d Cir. 1990) (finding clandestine search permissible only when secrecy is "essential"); United States v. Freitas, 800 F.2d 1451, 1456 (9th Cir. 1986) (holding that when circumstances justify clandestine search, notice to homeowner must nonetheless be given within seven days; extensions of this period permissible only on a "strong showing of necessity").
72. Miranda v. Arizona, 384 U.S. 436, 457-60 (1966) (stating that in the absence of warnings, custodial interrogation "trades on the weaknesses of individuals" and is "destructive of human dignity"; "the constitutional foundation underlying the privilege [against self-incrimination] is the respect a government-state or federal-must accord to the dignity and integrity of its citizens. ").
73. Tom R. Tyler & Cheryl Wakslak, Profiling and the Legitimacy of the Police: Procedural Justice, Attributions of Motive, and the Acceptance of Social Authority, 42 CRIMINOLOGY 13, 13-42 (2004).
74. See, e.g., Whren v. United States, 517 U.S. 806 (1996) (upholding authority of vice-squad officers to make arrest for failure to signal a turn, whether or not their action was pretextual). Compare United States v. Martinez-Fuerte, 428 U.S. 543, 560, 563 (1976) (holding "objective intrusion" was "minimal" because of stops' "public and relatively routine nature, " even though stops were made "on the basis of apparent Mexican ancestry"), with id. at 573 (Brennan, J., dissenting) (positing that the "experience [would be] particularly vexing for the motorist of Mexican ancestry who is selectively referred, knowing that the officers' target is the Mexican alien").
75. HERBERT L. PACKER, THE LIMITS OF THE CRIMINAL SANCTION (1968).
76. See, e.g., Herring v. United States, 129 S. Ct. 695, 702 (2009) (exclusionary rule applies only when exclusion can "meaningfully deter" police misconduct); Hudson v. Michigan, 547 U.S. 586, 596-97 (2006) (same); United States v. Leon, 468 U.S. 897, 907 (1984) (same). But see Rakas v. Illinois, 439 U.S. 128 (1978) (exclusionary rule may not be invoked to suppress fruits of an illegal search that did not violate the defendant's personal rights).
77. See Barbara Armacost, Organizational Culture and Police Misconduct, 72 GEO. WASH. L. REV. 453, 464-78 (2004) (cataloguing reasons why individual remedies are ineffective at changing police institutions); David Rudovsky, Police Abuse: Can the Violence be Contained?, 27 HARV. C.R.-C.L. L. REV. 465, 480-88 (1992) (discussing lack of success in judicial efforts to change police culture).
78. See, e.g., Myron W. Orfield, Deterrence, Perjury, and the Heater Factor: An Exclusionary Rule in the Chicago Criminal Courts, 63 U. COLO. L. REV. 75, 82-83 (1992) (documenting pervasive police perjury used to avoid exclusionary rule in important cases).
79. See Stephen J. Schulhofer, Miranda's Practical Effect: Substantial Benefits and Vanishingly Small Social Costs, 90 NW. U. L. REV. 500, 516-38 (1996) (reviewing evidence to this effect).
80. See, e.g., V. Lee Hamilton & Joseph Sanders, Responsibility and Risk in Organizational Crimes of Obedience, 14 RES. ORGANIZATIONAL BEHAV. 49 (1992).
81. See Tom R. Tyler & Steven L. Blader, Can Businesses Effectively Regulate Employee Conduct? The Antecedents of Rule Following in Work Settings, 48 ACAD. MGMT. J. 1143, 1153 (2005).
82. Tom R. Tyler, Patrick E. Callahan & Jeffrey Frost, Armed, and Dangerous (?): Motivating Rule Adherence Among Agents of Social Control, 41 LAW & SOC'Y REV. 457, 481, 483 (2007).
83. For details on the methodology and results of the most recent survey, see Metropolitan Police Service (London), Public Confidence in Policing London, http://www.met.police.uk/about/performance/confidence.htm (last visited Jan. 17, 2011).
84. See, e.g., Hudson v. Michigan, 547 U.S. 586, 598 (2006) (stating that "[a]nother development over the past half-century that deters civil-rights violations [thus making the exclusionary rule less necessary] is the increasing professionalism of police forces, including a new emphasis on internal police discipline"); Kahan & Meares, (stating that in "today's inner city... the citizens who support giving more discretion to the police are the same ones who are exposed to the risk that discretion will be abused").
85. See, e.g., Herring v. United States, 129 S. Ct. 695, 702 (2009) (rejecting the rule that suppression is presumptively mandated for all illegally seized evidence and holding that "police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system"); Hudson, 547 U.S. at 591, 597, 599 (stating that the exclusionary rule should be applied only where deterrence benefits outweigh its "massive" social costs, and, because "much has changed" since 1961, exclusion is not necessarily justified today simply because that remedy was held necessary "in different contexts and long ago").
86. The Fourth Amendment at its inception had nothing whatever to do with preventing racial oppression, and to the extent that this concern has greater salience today, it is not plausible to suggest that American policing tactics have rendered it obsolete. In any event, there is no evidence to support (and much evidence to contradict) the Court's assumption in Hudson, 547 U.S. at 597-98, that civil damage liability provides all the deterrence needed. See id., at 609-11 (Breyer, J., dissenting) (arguing that any damages awarded are likely to be nominal); Herring, 129 S. Ct. at 709 n.6 (Ginsburg, J., dissenting) ("[P]rofessionalism is a sign of the exclusionary rule's efficacy-not of its superfluity"); David Alan Sklansky, Is the Exclusionary Rule Obsolete?, 5 OHIO ST. J. CRIM. L. 567, 579-82 (2008) ("Despite the genuinely vast changes in law enforcement over the past forty years, the exclusionary rule probably still does a lot of work that no other remedy stands ready to duplicate. ").
87. Mapp v. Ohio, 367 U.S. 643, 656 (1961) (quoting Elkins v. United States, 364 U.S. 206, 217 (1960) (internal quotation marks omitted).
88. (quoting Elkins, 364 U.S. at 222) (internal quotation marks omitted).
89. Olmstead v. United States, 277 U.S. 438, 484 (1928) (Brandeis, J., dissenting); see also id. at 470 (Holmes, J., dissenting) ("[I]t [is] a less evil that some criminals should escape than that the Government should play an ignoble part. ").
90. United States v. Calandra, 414 U.S. 338, 357 (1974) (Brennan, J., dissenting).
91. Hudson, 547 U.S. 586, 591 (2006) (acknowledging that "[e]xpansive dicta in Mapp... suggested wide scope for the exclusionary rule").
92. Herring v. United States, 129 S. Ct. 695, 700-01 (2009) (quoting Illinois v. Krull, 480 U.S. 340, 352-53 (1987) (internal quotation marks omitted).
93. Hudson, 547 U.S. at 591.
94. Herring, 129 S. Ct. at 702.
95. See, e.g., Carol S. Steiker, Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 MICH. L. REV. 2466, 2513 (1996) (describing this argument and its role in the development of the good faith exception to the exclusionary rule).
96. See, e.g., TYLER, WHY PEOPLE OBEY, note 46; Tyler & Fagan, note 47; Tyler, Schulhofer & Huq.
97. See, e.g., Lyons, note 39, at 538 (finding that desired cooperation occurs only when police build community "understanding, trust and respect"); Tyler, Legitimacy, note 49, at 379-80 (police effectiveness is much less important than perceived legitimacy in predicting willingness to cooperate); Tyler, Schulhofer & Huq, note 58, at 380 tbl.1 (finding perceived effectiveness of police has no significant correlation with willingness to cooperate, but that procedural justice concerns are strongly correlated with willingness to cooperate).
98. See, e.g., David Thacher, The Local Role in Homeland Security, 39 LAW & SOC'Y REV. 635, 669 (2005) (describing factors that prompt federal institutions to take lead); Dafna Linzer, In New York, a Turf War in the Battle Against Terrorism, WASH. POST, Mar. 24, 2008, at A1 (describing FBI reluctance to cede responsibilities to New York City Police Department). But see Samuel J. Rascoff, The Law of Homegrown (Counter)Terrorism, 88 TEX. L. REV. 1715 (2010) (arguing that local police must play significant role).
99. See JOHN ROLLINS, CONGRESSIONAL RES. SERV., NO. RL34070, FUSION CENTERS: ISSUES AND OPTIONS FOR CONGRESS 1-2 (updated Jan. 18, 2008), available at http://fas.org/sgp/crs/intel/RL34070.pdf.
100. NAT'L INTELLIGENCE COUNCIL, NATIONAL INTELLIGENCE ESTIMATE: THE TERRORIST THREAT TO THE US HOMELAND 5 (2007). The National Intelligence Estimate summarizes "the Intelligence Community's (IC) most authoritative written judgments on national security issues
101. These conspiracies included the decision of a Somali-American to travel to Somalia and become the first American suicide bomber, the July 2009 arrest of seven North Carolina Muslims on allegations they intended to commit suicide attacks, the September 2009 arrest of Afghan-born Najibullah Zazi based on allegations that he intended to attack the New York subway system, the October 2009 arrest of Pakistani-American David Headley in connection with the 2008 Mumbai attacks, and the May 2010 attempt by Pakistani-born American citizen Faisal Shahzad to explode a car bomb in New York's Times Square. See JEROME P. BJELOPERA & MARK A. RANDOL, CONGRESSIONAL RES. SERV., AMERICAN JIHADIST TERRORISM: COMBATING A COMPLEX THREAT 74-76, 79, 81-82, 86-91 (2010), available at http://www.fas.org/sgp/crs/terror/R41416.pdf; Karen J. Greenberg, Homegrown: The Rise of American Jihad, NEW REPUBLIC, June 10, 2010, at 6, 7.
102. PRESIDENT OF THE U.S., NATIONAL SECURITY STRATEGY 19 (May 2010).
103. SETH G. JONES & MARTIN C. LIBICKI, HOW TERRORIST GROUPS END: LESSONS FOR COUNTERING AL QA'IDA 27 (2008).
104. K. JACK RILEY ET AL., STATE AND LOCAL INTELLIGENCE IN THE WAR ON TERRORISM ix (2005); accord Gary LaFree & James Hendrickson, Build a Criminal Justice Policy for Terrorism, 6 CRIMINOLOGY & PUB. POL'Y 781, 783 (2007) ("In many ways the community-oriented approach favored by successful police departments is the same kind of approach that is most likely to uncover terrorist operations. ").
105. See, e.g., DAVID KILCULLEN, COUNTERINSURGENCY 3-5 (2010).
106. (discussing commentators who urge the U.S. to make greater use of air power against the Taliban, even at the risk of extensive civilian casualties).
107. See, e.g., U.S. DEP'T OF THE ARMY, U.S. ARMY FIELD MANUAL NO. 3-24, MARINE CORPS WARFIGHTING PUBLICATION NO. 3-33.5, COUNTERINSURGENCY FIELD MANUAL xxv (2007) (noting that "the civilian population [is]... the deciding factor in the struggle, " with the key issue being the ability to secure their support).
108. See, e.g., Richard Winton & Teresa Watanabe, LAPD's Muslim Mapping Plan Killed, L.A. TIMES, Nov, 15, 2007, at A1 (describing controversy over a police department effort to address "radicalization" with aid of a "community mapping" plan to identify geographic locations of Muslim populations).
109. See Andrea Elliott, White House Quietly Courts Muslims in the U.S., N.Y. TIMES, Apr. 18, 2010, at A1.
110. Prominent examples include expansion of search and surveillance powers, military detention of alleged "enemy combatants, " aggressive use of immigration detention and deportation, and enactment of broader definitions of prohibited "material support" for terrorism. See, e.g., Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010) (upholding the constitutionality of a prohibition on giving "material support" by acts intended to support humanitarian and political activities). See generally STEPHEN J. SCHULHOFER, THE ENEMY WITHIN (2002) (cataloguing post-9/11 measures that expand intelligence gathering and law enforcement powers).
111. See, e.g., Harris, Allen & VandeHei, note 31 (quoting former Vice President Dick Cheney, stating that counterterrorism is "a tough, mean, dirty, nasty business.... [W]e're not going to win this fight by turning the other cheek.... The United States needs to be not so much loved as it needs to be respected. Sometimes, that requires us to take actions that generate controversy").
112. See, e.g., Peter Clarke, The Courts and Terrorism: Transatlantic Observations, Lecture at NYU Law School 2-3 (Apr. 15, 2009) (on file with the authors) (stating, as former chief of counterterrorism in London's Metropolitan Police, that "[for] deeply pragmatic reasons,... it is absolutely essential to adhere to due process.... People... must have confidence and trust in the authorities.... They must believe... that information... will not be used... to stigmatize their communities or to justify extrajudicial action"). For an assessment suggesting mixed results from British efforts to build community trust through its "Prevent" program, see HOUSE OF COMMONS, CMTYS. & LOCAL GOVERNMENT COMMITTEE, PREVENTING VIOLENT EXTREMISM 3-4 (Mar. 30, 2010), available at http://www.publications.parliament.uk/pa/cm200910/cmselect/cmcomloc/65/65.pdf; Vikram Dodd, Communities Fear Project Is Not What It Seems, GUARDIAN (U.K.), Oct 17, 2010, available at http://www.guardian.co.uk/society/2009/oct/16/prevent-counter-islamic-extremism-intelligence. Responding to such concerns (among others), the British government has proposed to roll back many powers granted since September 11, 2001; the authority to detain terrorism suspects for up to twenty-eight days prior to charge would be reduced to fourteen days. Protection of Freedoms Bill, 2011, H.C. Bill [146] cl. 57, available at http://www.publications.parliament.uk/pa/bills/cbill/2010-2011/0146/2011146.pdf. The proposal regarding pre-charge detention reflects concerns that the extended power is unnecessary and "has a negative impact on Muslim communities." HM GOVERNMENT, REVIEW OF COUNTER-TERRORISM AND SECURITY POWERS: REVIEW FINDINGS AND RECOMMENDATIONS 7 (2011), available at http://www.homeoffice.gov.uk/publications/counter-terrorism/review-of-ct-security-powers/review-findings-and-rec?view=Binary.
113. Gary LaFree, Laura Dugan & Raven Korte, The Impact of British Counterterrorist Strategies on Political Violence in Northern Ireland: Comparing Deterrence and Backlash Models, 47 CRIMINOLOGY 17, 25-27, 34 (2009).
114. The sixth intervention studied by LaFree, et al. involved a shift from military methods to locally administered criminal justice procedures, treating captured terrorists as ordinary criminal suspects in an effort to delegitimate their cause. The detainees responded with a hunger strike to obtain a return to "prisoner-of-war" status. Further anti-British animosity resulted, and violence subsequently increased. at 36. That finding underscores the point that both deterrence and backlash effects can be highly sensitive to context.
115. See, e.g., Ronald Fischer, et al., Support for Resistance Among Iraqi Students, 30 BASIC & APPLIED SOC. PSYCHOL. 167, 173 (2008).
116. See, e.g., Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 COLUM. L. REV. 1413, 1436-38 (2002) (approving such measures in some circumstances, though urging cautious implementation).
117. See, e.g., William J. Stuntz, Local Policing After the Terror, 111 YALE L.J. 2137, 2141-42 (2002).
118. See, e.g., Joel Brockner et al., Culture and Procedural Justice: The Influence of Power Distance on Reactions to Voice, 37 J. EXPERIMENTAL SOC. PSYCHOL. 300, 314 (2001) (finding that, in China, people do not react as strongly as in other cultures to procedural unfairness).