Broken w indows and police discretion


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Broken w indows and police discretion

  1. 1. U.S. Department of Justice RT ME NT OF J US PA TI CE DEOffice of Justice Programs BJ A C E G OVC MS OF F RA IJ N I S J O F OJJ D P B RONational Institute of Justice J US T I C E P National Institute of Justice R e s e a r c h R e p o r t “Broken Windows” and Police Discretion
  2. 2. U.S. Department of Justice Office of Justice Programs 810 Seventh Street N.W. Washington, DC 20531 Janet Reno Attorney General Raymond C. Fisher Associate Attorney General Laurie Robinson Assistant Attorney General Noël Brennan Deputy Assistant Attorney General Jeremy Travis Director, National Institute of JusticeOffice of Justice Programs National Institute of Justice World Wide Web Site World Wide Web Site
  3. 3. “Broken Windows” and Police Discretion George L. Kelling Professor, School of Criminal Justice, Rutgers UniversityResearch Fellow, John F. Kennedy School of Government, Harvard University Senior Fellow, Manhattan Institute October 1999 NCJ 178259
  4. 4. Jeremy Travis Director Steve Edwards Program MonitorThis program was supported under award number 95–IJ–CX–0013 to George L. Kelling by the NationalInstitute of Justice, Office of Justice Programs, U.S. Department of Justice. Findings and conclusions ofthe research reported here are those of the author and do not necessarily reflect the official position orpolicies of the U.S. Department of Justice. The National Institute of Justice is a component of the Office of Justice Programs, which also includes the Bureau of Justice Assistance, the Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime.
  5. 5. iiiForewordThe past two decades have seen growing aware- as handling alcoholics and panhandlers andness of the complexity of police work, an ex- resolving disputes between neighbors. And heamination of the use of discretion in officers’ notes that police officers themselves are oftendaily policing activities, and a better under- unable to articulate the precise characteristicsstanding of the critical role community leaders of an event that led them to act as they in the vitality of neighborhoods. Kelling maintains that officers must and should exercise discretion in such situations. But giv-Noted criminologist George L. Kelling has ing police officers permission to use their pro-been involved in practical police work since fessional judgment is not the same as endorsingthe 1970s, working day-to-day with officers in random or arbitrary policing. In his view, polic-numerous agencies in all parts of the country ing that reflects a neighborhood’s values andand serving as an adviser to communities, large sense of justice and that understands residents’and small, looking for better ways to integrate concerns is more likely to do justice than polic-police work into the lives of their citizens. ing that strictly follows a rule book.In the context of the “broken windows” meta- Police work is in transition within commu-phor, proposed by James Q. Wilson and Dr. nities. The police are more frequently involvedKelling in 1982 in The Atlantic Monthly, this in creating and nurturing partnerships withResearch Report details how an officer’s community residents, businesses, faith-basedsensitive role in order maintenance and crime organizations, schools, and neighborhood asso-prevention extends far beyond just arresting ciations. Their role in the justice process re-lawbreakers—how discretion exists at every quires even greater commitment to developinglevel of the police organization. Historically, policy guidelines that set standards, shape thepolice have asserted authority in many ways, inevitable use of discretion, and support com-often having nothing to do with arrest. Dr. munity involvement. We hope this ResearchKelling takes a special interest in the use of Report will help inform the continuing debatediscretion to exercise the core police authority, over the proper exercise of police discretion inenforcement of the law. this new era of policing.He wants to understand better why officers Jeremy Travismake arrests in some circumstances and not Directorothers, especially when they are dealing with National Institute of Justicethe more mundane aspects of policing—such
  6. 6. vPrefaceDuring the late 1960s and early 1970s, Frank thinking. Police culture and the professionRemington, Herman Goldstein, and others ad- have changed dramatically as a result.vanced the notion that police departments arecomparable to administrative agencies whose Nevertheless, discussions about substantivecomplex work is characterized by considerable police work continue to lag. We now under-use of discretion. Moreover, they advocated stand that telling officers only what they can-the development of guidelines to shape police not do, which is so typical of police manualsuse of discretion. Their thinking and work and rules and regulations, has not improvedwere ahead of their time; the field of policing the quality of policing. We know as well thatwas simply not ready to consider seriously the the work world of police is too complex to tellimplications of this view. Policing was still officers exactly what they should do in everymired in the simplistic and narrow view of law circumstance. The only alternative left for theenforcement agencies as concerned primarily management of most police work is to teachwith felonies—the front end of a criminal pro- officers how to think about what they shouldcessing system. do, do it, and then talk about it, so that they improve their practice over time and shareToday, the ideas regarding the complexity of their emerging values, knowledge, and skillspolice work and the ubiquity of discretion that with their colleagues and the profession.are inherent in research conducted about po- This report proposes a model for helpinglice functioning during the 1950s through the police officers think about their work while1970s have permeated police and academic practicing it.
  7. 7. viiContentsForeword . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iiiPreface . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vIntroduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1A Short History of Police Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5The Urgency of Influencing Police Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Preventive Interventionist Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Reopened Issues for Policing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Police, Law, and the Constitution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 What Is the Future of Guidelines Development? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17The Discovery of Discretion and Its Meaning . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Survey of Criminal Justice Agencies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Study Findings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22The Police Guidelines Movement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25Development of Police Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Recognizing the Complexity of Police Work . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Acknowledging Police Use of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37 Recognizing and Confirming How Police Work Is Conducted . . . . . . . . . . . . . . . . . . . . . . . . 38 Advancing Values . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Putting Police Knowledge Forward . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Undergoing Development by Practicing Police Officers and Citizens . . . . . . . . . . . . . . . . . . 41 Undergoing Clear and Broad Public Promulgation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Emphasizing Police Adherence to a Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Establishing Accountability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Receiving Recognition as an Ongoing Process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47Appendix A: Order Maintenance Training Bulletin 96–1 . . . . . . . . . . . . . . . . . . . . . . . . . . . 49Appendix B: San Diego Police Department Policy Statement . . . . . . . . . . . . . . . . . . . . . . . . 53
  8. 8. 1IntroductionPolice departments throughout the United States, Past and current police administrators have at-as well as in Canada, England, and elsewhere in tempted to shape police work through the devel-Europe, have begun to reemphasize the mainte- opment of command and control organizations,nance of public order as an essential aspect of recruitment, training, supervision, rules andpolice work. Police activities to restore public regulations, rewards and punishment, specializa-order in New York City and its subway system, tion, and routinized tactics like preventive patrolfor instance, have received extensive publicity and rapid response to calls for service. Certainly,and professional attention. So, too, has the these efforts to control officers have powerfully“broken windows” metaphor as it has been influenced how American society is policed.closely linked to New York City.1 Rationalized police organizations deploy well- equipped officers throughout their jurisdictionsThe New York story, as well as others, raises in an organized fashion that allows them to re-serious questions. To what extent is order main- spond to calls for service quickly. The old imagetenance linked to the current decline of crime of policing on which the “Keystone Cops” werein the United States? Regardless of its efficacy, based belongs to another age. Nevertheless, put-how proper is assertive police order mainte- ting officers on the streets in a timely and orga-nance? To what extent can police brutality be ex- nized fashion and getting them to particularplained by “turning the police loose” with order locations rapidly is quite different from shapingmaintenance tactics? Many civil libertarians and police behavior once officers are out in the com-advocates for the homeless, for example, oppose munity dealing with citizens’ problems, needs,order maintenance because they believe it in- and conflicts.fringes on the liberties of selected populations(the poor, minorities, the homeless, and youths) Police administrations’ limited ability to shapeand opens the door to abusive police practices.2 police street practice persists despite manage-The debates about these issues have been vigor- ment’s preoccupation with control—an orienta-ous and often rancorous.3 tion that largely grew out of efforts to minimize the kinds of corruption, especially political cor-It is not the intent of this report to debate these ruption, that plagued late 19th and early 20thissues or even dwell on them at any length. I century American policing.6 Yet, as valid as itshave addressed them elsewhere and will do so origins were, police administrators’ preoccupa-again in the future.4 It is important, however, tion with control, and the methods they adoptedto note up front that order maintenance has the to maintain it, have had tragic, unanticipatedpotential for abuse. Vagrancy and loitering laws, consequences. Most obviously, this preoccupa-for example, have been used to deny minorities tion has fostered a bitterly antimanagement cul-their rights and to abuse citizens, especially ture in many police departments. In this cultureAfrican-Americans. But my concern here is not officers are alienated from the citizens theylimited to order maintenance activities; the con- serve, support a “stay out of trouble” (by doingcern here is how to manage properly what Egon nothing) mentality, and, while disapprovingBittner calls literal police work.5 of abuse and corruption, nonetheless protect deviant officers in the name of occupational solidarity.7
  9. 9. 2James Q. Wilson noted some of the conse- Some chiefs have demanded or implied thatquences of rules and regulations on officers’ when confronted with difficult or ambiguousbeliefs in 1968: problems, line police should “do what has to be done and cover your ass.” While often not But there are at least two limits to the value of explicit, this message is nonetheless sent to negative policies [things officers may not do]. officers because they are frequently put into First, they leave untouched a large area of complex and troublesome situations where citi- necessary discretion and, second, they are zen demands for action are high and departmen- perceived as irrelevant and unhelpful restric- tal thinking about such situations is nonexistent. tions—as rules that “tell us what we shouldn’t Although this defensive mentality does not char- do” and thus “give the brass plenty of rope acterize all police leadership, over time it has with which to hang us,” but that “don’t tell us characterized enough leaders in enough depart- what we should do.”8 ments so that line officers have come to support or tolerate a bitter antimanagement culture.10These beliefs—that rules tell officers only whatnot to do, will be used to “hang” officers, and Pushing harder and more stridently with currentfail to tell police what they should do in a control mechanisms that exert little real controlpositive way—have arisen in part from police over substantive work will not lead the way outadministrators’ inattention to the substantive of this quandary. Such specious thinking hascontent of day-to-day policing. been in place since the 1950s (e.g., just a little more inservice training, a slightly tighter span ofAt least three explanations can be given for this control, a few more general orders or rules, moreinattention: militant internal affairs units, improved rewards and punishments, improved or more representa-q Oversimplified, but robust, views of police tive recruitment, greater militarization of recruit work have dominated police conventional training). Instead, police officials need to focus wisdom for most of this century. The idea of on the substantive content of police work; find police as “crime fighters,” or merely “law and delineate the means to conduct police work enforcement officers,” was the cornerstone of morally, legally, skillfully, and effectively; then an ideological view of police that dismissed, structure and administer departments on the ignored, or was oblivious to actual police basis of this literal work and not a fictionalized functioning. view of police work. In other words, a clear definition and description of quality policing isq Many police chiefs who have been forthright needed around which appropriate organizations about police work find that legislators, may- and administrations can be developed. ors, and other officials often do not want to hear that police officials, not to mention patrol Concentrating on the substance of police work is officers, are involved in policy decisions about nothing new; Herman Goldstein, Egon Bittner, the how problems should be managed.9 This is late Frank Remington, and others have advocated partially because the general public or public such a focus for decades. Today, the issue has officials simply do not understand the com- acquired a new urgency. plexity of many problems.q Politicians and media representatives often are Although this report raises the broader issues of so caught up in the simple-minded slogans of discretion in all police work, it focuses primarily “wars on crime,” the “thin blue line,” and so on the more mundane aspects of policing, such as forth, that they are not prepared (whether in- resolving petty conflicts, assisting and protecting tentionally or not) to hear about the real world children, managing drunks and the emotionally of policing.
  10. 10. 3disturbed—those activities that fill patrol officers’ William Bratton has a “flippant” attitude towardoccupational lives. In addition, 11 principles to be abuses such as those perpetrated by policeconsidered in developing and implementing police against Abner Louima (a Haitian immigrant) inguidelines are explored: New York City, and that James Q. Wilson and I “opened the door” to such abuses in the originalq Recognizing the complexity of police work. “Broken Windows” article. (See McNamara,q Acknowledging police use of discretion. Joseph, “Brutality in the Name of Public Safety,” Los Angeles Times, August 24, 1997, A1.)q Recognizing and confirming how police work is conducted. 3. At another level, the equation made in someq Advancing values. quarters between police order maintenance ac- tivities (“broken windows”) and “zero tolerance”q Putting police knowledge forward. for disorderly behavior raises issues that go be-q Undergoing development by practicing police yond semantics. Without further comment, it is officers and citizens. an equation that I have never made, find worri- some, and have argued against, considering theq Undergoing clear and broad public phrase “zero tolerance” not credible and smack- promulgation. ing of zealotry.q Prescribing what officers may not do. 4. Kelling and Coles, Fixing Broken Windows,q Emphasizing police adherence to a process. Chapters 2, 4, and 5.q Establishing accountability. 5. Bittner, Egon, Aspects of Police Work, Boston:q Receiving recognition as an ongoing process. Northeastern University Press, 1990: 4.Moreover, this report takes a special interest in 6. This does not imply that there were not otherselective enforcement: helping officers articulate reasons for police managers’ concerns for con-in professionally sound terms why they properly trol. Military organizations predisposed policemake arrests in some circumstances (in the case of toward command and control issues, and the in-public urination, for example) but not in others. herent decentralization that goes with patrolling requires that considerable effort be put intoNotes establishing control mechanisms.1. Wilson, James Q., and George L. Kelling,“Broken Windows: The Police and Neighbor- 7. For an interesting discussion of these issues,hood Safety,” The Atlantic Monthly (March especially as a result of the Knapp Commission1982): 29–38; also see Kelling, George L., and in New York City, see Anechiarico, Frank, andCatherine M. Coles, Fixing Broken Windows: James B. Jacobs, The Pursuit of Absolute Integ-Restoring Order and Reducing Crime in Our rity: How Corruption Control Makes Govern-Communities, New York: Free Press, 1996. ment Ineffective, Chicago: University of Chicago Press, 1996.2. Generally, civil libertarian groups, such as theNew York City Civil Liberties Union, make both 8. Wilson, James Q., Varieties of Police Behav-arguments. Former San Jose Police Chief Joseph ior, Cambridge, MA: Harvard University Press,McNamara has been the most outspoken advo- 1968: 279.cate of the points of view claiming that assertivepolice order maintenance tactics open the door 9. Goldstein, Herman, “Categorizing and Struc-to abusive police practices. McNamara argues turing Discretion,” Policing a Free Society,that former New York City Police Commissioner Cambridge, MA: Ballinger Publishing Com- pany, 1977: 93–130.
  11. 11. 410. It is not unusual for police executives to Kliesmet, “Police Unions, Police Culture, theblame unions for this antimanagement culture, Friday Crab Club, and Police Abuse of Force,”but this is self-serving and deceptive because in And Justice for All: Understanding and Con-this thinking pervades many nonunionized trolling Police Abuse of Force, ed. William A.departments and existed long before unions Geller and Hans Toch, Washington, DC: Policeentered the police scene during the 1960s. See, Executive Research Forum, 1995: 187–204.for example, Kelling, George L., and Robert
  12. 12. 5A Short History of Police AccountabilityPolice accountability is an issue that has been investigations through some form of stipendiarywith democracies since modern police were police. Unobtrusive policing by public investiga-created. Citizens should be concerned about tors risked police meddling in political matters,controlling police: they have immense authority; and militarized policing risked further alienationthey are armed and authorized to use force; of the general population. The primary businessand unlike the military, they are not sequestered of police was to prevent crime through presence,on bases—they are spread throughout the persuasion, and reduced In the United States, cities adopted the EnglishModern American policing had its origins in model of policing. Although not originally out-England, where, in 1829, the questions of fitted in uniforms—this was deemed Europeanwhether to create a police force and, if created, elitism—American police were similarly dif-how to keep this force accountable were debated fused throughout cities, like their English coun-by political, social, and philosophical elites for terparts, to prevent crime. For American police,more than a century. Everything about policing the issue of who would control the police—was “on the table” in this debate—the relation- urban political bosses or descendants of theship of police to political authority, activities original Dutch and English settlers—was thethat would constitute the business of policing, dominant public concern. This struggle to con-organizational structure and administrative pro- trol police forces was to shape American policecesses, and the means by which police would in remarkable ways.obtain their goals. During the first stage of evolutionary develop-During the late 18th and early 19th centuries, the ment (roughly from the 1850s to the 1920s),English stared across the channel at the French, police were largely under the control of urbanor continental, model of policing, which relied political machines; during the second stageupon secret police and paid informers. Likewise, (roughly the 1930s to the 1970s), police, withthe English already had developed a model of the support of the progressives, evolved intopolicing Ireland and their other colonies with virtually autonomous urban agencies. Hermanarmed mounted police operating in groups Goldstein has described police as evolving intobivouacked to avoid contact with the native the least accountable branch of urban govern-population.1 ment during this era.2The English decided neither of these models was To achieve this shift—from politically domi-acceptable. Early English policing emphasized nated and controlled to virtually autonomousuniformed, unarmed, highly recognizable offi- forces—practically every aspect of Americancers who were diffused geographically through- policing was reformed during the early decadesout London and patrolled on foot. These officers of the 20th century. Leading police thinkers (likenot only were granted authority from the Crown O.W. Wilson, Leonard Fuld, and Bruce Smith)but also had to earn the citizens’ trust. Investiga- were overwhelmingly preoccupied with issuestions conducted by plainclothes police, at least of control—that is, both wresting control ofinitially, were rejected; victims pursued criminal police at all levels from political influences and
  13. 13. 6ensuring that only “professional” police influ- military leaders as the right heart). (Emphasisence police. Bruce Smith, for example, wrote added.)5in 1929: “Without exceptions, all proposals for Police work, in this view, as Egon Bittner onceimprovement of organization and control have said, could be conducted by persons who havenecessarily been aimed at the weakening or the “the ‘manly virtues’ of honesty, loyalty, aggres-elimination of political influences.”3 siveness, and visceral courage.”6 The idea of officers thinking before they acted was to beIn the name of eliminating corrupt political in-fluences from policing, these men attempted to discouraged. They were to follow rules loyally.change the nature of the business from crime The perception of police work as simple andprevention to reactive law enforcement. They under administrative control was shattered, ofrestructured police organizations, revised admin- course, by research conducted in the 1950s byistrative processes, developed new tactics, and the American Bar Foundation, which showedredefined the relationship between police and that police work is complex, that police usecitizens—each, more or less successfully—all enormous discretion, that discretion is at thewith an eye toward gaining administrative con- core of police functioning, and that police usetrol of police, whether field commanders, super- criminal law to sort out myriad problems. Thevisors, or patrol officers.4 research suggested that the control mechanisms that pervaded police organizations—especiallyBy the 1950s, theorists wrote about the conduct rules and regulations, oversight, and militaristicof police work—services line officers perform structure and training—were incompatible within the course of their daily work—as being semi- the problems that confront police officers dailyautomatic (i.e., police responses to incidents and the realities of how police services are deliv-could be, or should be, so controlled as to be ered. Aside from several who were scholars,analogous to typing, piano playing, or rote ad-herence to a script). O.W. Wilson wrote in 1956, few police administrators realized how “out of touch” existing practices were with day-to-dayfor example: police realities. Administration has been defined as the art of getting things done. Police objectives are Paradoxically, a policing strategy that was over- achieved by policemen at the level of perfor- whelmingly preoccupied with control, in the final analysis, failed to meet its most essential mance where the patrolman or detective deals face-to-face with the public—the complain- criteria. True, the strategy largely eliminated cor- ants, suspects, and offenders—and the success rupt political influences in police departments. of the department is judged by the perfor- However, it left officers mostly to their own mance of these officers. devices in conducting the bulk of their work. This state of affairs has not gone unnoticed in Decisions that are advantageous to the depart- either the legal or research community. The U.S. ment are most likely to be made by policemen Supreme Court, for example, grew impatient who have been selected in a manner to assure with the unwillingness or inability of police superior ability, who understand the police executives to control criminal investigations— objectives and are sympathetic to them, who it was widely acknowledged since the 1930s are loyal to their department and capable of Wickersham Commission that police procedure operating effectively, efficiently, and semi- embraced the practice of torture—and through a automatically (i.e., with a minimum of con- series of decisions during the 1960s (the exclu- scious self-direction, as in performance by a sionary rule, the requirement that offenders un- skilled typist or pianist), and who have high derstand their right to an attorney, and so forth), morale (i.e., the condition described by
  14. 14. 7established guidelines that shaped the future Notesconduct of criminal investigations.7 EgonBittner, based on his own research of police 1. Tobias, John J., “The British Colonial Police:handling of drunkenness and mental illness, has An Alternative Police Style,” in Pioneers inwritten both eloquently and indignantly about Policing, ed. Philip John Stead, Montclair, NJ:the mismatch between “official” and real police Patterson Smith, 1977: 241– 2. Goldstein, Herman, “Categorizing and Struc- The official definition of the police mandate turing Discretion,” Policing a Free Society, is that of a law enforcement agency. . . . The Cambridge, MA: Ballinger Publishing Com- internal organization and division of labor pany, 1977: 93–130. within departments reflect categories of crime 3. Smith, Bruce, “Municipal Police Administra- control. Recognition for meritorious perfor- tion,” The Annals 146 (November 1929): 27. mance is given for feats of valor and ingenuity in crime fighting. But the day-to-day work of 4. Kelling, George L., and Mark H. Moore, “The most officers has very little to do with all of Evolving Strategy of Policing,” in Perspectives this. These officers are engaged in what is on Policing, No. 4, Cambridge, MA: U.S. De- now commonly called peacekeeping and order partment of Justice and Program in Criminal maintenance, activities in which arrests are Justice Policy and Management, John F. extremely rare. Those arrests that do occur Kennedy School of Government, Harvard are for the most part peacekeeping expedients University, November 1988. rather than measures of law enforcement of the sort employed against thieves, rapists, or 5. Wilson, O.W., “Basic Police Policies,” The perpetrators of other major crimes. Police Chief (November 1956): 28–29. For the rich variety of services of every kind, 6. Bittner, Egon, Aspects of Police Work, Boston: involving all sorts of emergencies, abatements Northeastern University Press, 1990: 6–7. of nuisances, dispute settlements, and an al- most infinite range of repairs on the flow of 7. The Wickersham Commission was the first life in modern society, the police neither re- national survey of criminal justice and police ceive nor claim credit. Nor is there any recog- practices. nition of the fact that many of these human and social problems are quite complex, seri- 8. Bittner, Aspects of Police Work. ous, and important, and that dealing with them requires skill, prudence, judgment, and knowledge.8
  15. 15. 9The Urgency of Influencing Police WorkIncreasingly, police are under renewed and con- constitutional law—at least as it has been inter-stant pressure from neighborhood groups and preted for the past 30 halls across the country—not to mentionState legislatures and the U.S. Congress—to “do Preventive Interventionist Policingsomething now” about eliminating the excesses When a shooting occurs in New Haven, Con-of the drug market, getting guns off the street, necticut, the Department of Police Servicesand regaining control over public places.1 At- immediately sends a team of Yale Child Studytempting to meet such demands has inevitable Center clinicians and police officers to helpstrategic consequences for police departments children and families cope with the social andand local government. The main consequence is psychological consequences of violence.2 (Seethat police strategy shifts from a reactive and in- “How New Haven Developed Guidelines.”)herently passive model to a preventive interven- Likewise, when Community Patrol Officer Jacktionist model that reopens policy issues about Fee, who is assigned to the Academy Homespolice handling of the homeless, drunks, drug in Boston, Massachusetts, discovers a hithertodealers and users, the emotionally disturbed, and unenforced housing law that allows the courtminor offenders that many believed had been to sentence a gang member with a history ofaddressed once and for all during the period fol- violence, but no convictions, to a 1-year jaillowing the 1960s. This strategic change takes sentence for trespassing, this is preventive inter-police to the edge, or even over the edge, of ventionist policing. How New Haven Developed Guidelines New Haven’s policy guidelines embody important principles described in this report. The guidelines focused on problems of disorder and were developed with officers and sergeants at the request of then Chief Nick Pastore. The guidelines have been distributed as a training bulletin in the New Haven Department of Police Service. (See Appendix A, “Order Maintenance Training Bulletin 96–1.”) The bulletin was prepared as a city- and departmentwide document, rather than as a location-specific docu- ment. Consequently, it invites and outlines a problem-solving method to deal with location- or other problem-specific issues as they may occur in neighborhoods. Of course, the value of guidelines depends on the skill of management in linking them to on- going police practice and administrative and supervisory procedures. Moreover, the examples of guidelines included in this report are clearly not as good as they could be—none were developed as part of a special “project” to develop guidelines. Likewise, the 11 points articu- lated elsewhere in this report are no doubt preliminary and inadequate. The art of developing guidelines has yet to be defined and will emerge only over time. Yet, guidelines are essential to the development of police accountability and professionalism.
  16. 16. 10Although it might not appear so, preventive po- police action is required to deal with severelicing that interrupts cycles of violence through crime or disorder problems. New York Cityproblem solving is much more invasive of com- provides the best current example.munity life than the reform—or 911—model thathas dominated policing in the United States since Critics have attacked New York Police Depart-the 1950s. This inherent assertiveness can lead to ment (NYPD) community policing efforts sinceserious misunderstandings of what constitutes former Commissioner William Bratton imple-community or problem-oriented policing. mented assertive and enterprising (do not read combative here) policing to deal with disorderFor many people, thanks in part to how it has and crime.5 Indeed, a major Los Angeles Timesbeen presented by many police leaders, commu- article in 1995 argued that the NYPD wasnity policing is viewed as “soft” policing compa- remilitarizing and transforming itself into whatrable to community relations or, worse yet, social the Los Angeles Police Department (LAPD)work. When asked to describe his efforts in was, while the LAPD was attempting to demili-Academy Homes, Officer Jack Fee—known tarize itself and become the “officer-friendliesthroughout the Boston Police Department as a that the NYPD once symbolized.”6 The ease“tough” cop—shrugged and said, half apologeti- with which the article made this argument pointscally, “I suppose I’m doing social work.” This to the danger of using military metaphors, asperspective, that preventive policing is soft polic- was done by NYPD officials, to describeing, has created numerous obstacles for depart- policing.ments attempting to get police rank and file toembrace community policing. The Los Angeles Times reporter wrote: “In Los Angeles, officers are trying to shed the very“Crime fighting” is inherently passive and reac- image that the NYPD covets [military]. Copstive policing: patrol in a powerful car, receive a are getting out of cars, walking beats, putting on911 call, turn on flashing lights and siren, speed shorts and riding bicycles, all to be closer to theto the incident, tend to it as quickly as possible, public.”7 The reporter, who chose to focus on theand return to service. For the most part, this military metaphors used to describe the NYPDmethod of policing is in response to citizen- anticrime problem-solving methods, ignored theinitiated calls to deal with incidents.3 fact that the NYPD cops were in reality doing all of these things—probably at a rate faster thanCommunity policing is inherently proactive: scan any other police department in the country.for problems; diagnose them; try to prevent themfrom occurring again; if they recur, try to limit the The reporter’s view of community policing asdamage and restore the victim/family/community’s soft is evident throughout the story. For ex-functioning.4 This is implicit in New Haven’s ap- ample: “Los Angeles police are being encour-proach—tend to the incident, of course, but follow aged to spend more time talking to residents andup with action that limits the damage and helps merchants about what troubles their lives, to em-children and families restore themselves to ad- phasize community contacts over arrests, to con-equate functioning. Even police handling of murder sider the underlying community pressures thatshould go beyond criminal investigation. give rise to crime rather than focusing exclu- sively on criminal behavior itself.”8 Most advo-This failure to understand the inherent asser- cates of community policing could say, or havetiveness of community or problem-oriented said, similar words. It does not follow, however,policing, and equating it with soft policing, has that if police officers talk to citizens and come togreater consequences than just alienating line understand “what troubles their lives” this is thepolice officers. The equation of “community” end of their responsibility; they are still police.and “soft” leads to public confusion when tough
  17. 17. 11This debate about New York City, if anything, has tional protections associated with criminal trials,become even more heated in recent years. Mayor such as proof beyond a reasonable doubt, trialRudolph Giuliani and current Police Commis- by jury, and appointment of counsel.”12 This issioner Howard Safir are favorite targets of those hardly soft policing. In fact, civil initiatives raisewho view assertive policing as “turning the police important strategic, legal, and constitutionalloose.” To be sure, incidents like Louima and issues about use of police authority.13Diallo warrant public concern; however, the ideathat such events, as tragic as they were, are inevi- The misrepresentation of community policingtable consequences of restoring order ignores as soft plays into the hands of those who are op-both the benefits of the current police strategy and posed to change in policing methods. Those whothe reality that such incidents are not limited to want to get back to “tough” law enforcement—recent history.9 Outrageous brutality and tragic ac- police riding around in cars, responding to 911cidents occurred during the post-Knapp era, when calls, and occasionally conducting order mainte-“staying out of trouble” became the NYPD’s nance “sweeps” (another terrible metaphor todominant ethos as well.10 describe what police do)—trivialize what has happened in New York City. Moreover, whenThe fact that police add options to their reper- successful assertive policing is misconstrued astoire of methods, try to limit damage, and restore combative or militarized policing, it becomesfunctioning does not mean that conventional as- fodder for those who want to “turn the policesertive law enforcement is disallowed as a legiti- loose.”mate police tactic. For example, understandingthe dynamics of New York City’s “squeegee Citizens, politicians, and vested interest groupsmen”—unwanted car window washers who in- have always pressured police to cut legal andtimidate drivers into giving them money—and constitutional corners—that is, “to do what hastalking to them did nothing to deter their behav- to be done.” Whether the corner cutting is illegalior. Careful and judicious use of law enforce- searches, manhandling suspects, or “testilying,”ment did: policing that included citations, the consequence is always the same: a policewarrant service, arrest, and jailing ultimately culture that is alienated from democratic valueswere required to solve the problem.11 and the public and that tolerates police abuse of citizens and police corruption.14The growing practice of police using civil law toachieve criminal law objectives shows just how Reopened Issues for Policingenterprising community and problem-solving During the 1960s, policing in the United Statespolicing can be. These tactical innovations, civil was profoundly affected by converging social,remedies such as Boston Police Department political, and professional and occupationalOfficer Jack Fee applied, include efforts to deal forces. These forces included the triumph of pro-with domestic violence, drug trafficking, racial gressivism as a model for local government andharassment, disorderly behavior, and weapons the installation of preventive patrol and rapid re-possession. Civil remedies include injunctions, sponse as conceived by O.W. Wilson and otherrestitution, forfeiture, and civil fines that can be police reformers as the model of effective, effi-used either alone or in tandem with criminal law, cient, and honest policing. At the same time, theas in the case of use of property forfeitures to rights revolution had a major impact on society’sdeal with drug dealing. Civil initiatives not only response to mental illness, drunkenness, va-add to the police inventory of authority to deal grancy, and disorderly behavior. These socialwith problems but also, as Mary M. Cheh has forces also created the “criminal justice system”noted: “[C]ivil remedies offer speedy solutions with the police as its front end and a criminalthat are unencumbered by the rigorous constitu-
  18. 18. 12justice educational establishment that promul- that gave voice and legitimacy to citizen de-gated the ideas inherent in the “system.”15 mands that order be restored.16 Later work by Wesley Skogan confirmed these linkages andThe 1960s shaped a surprisingly congruent po- provided even greater momentum to the move tolice strategy that, while not adhered to univer- restore order.17sally, nonetheless constituted the official strategyof progressive midcentury American police. By the early and mid-1990s, highly publicizedPolicing became synonymous with law enforce- programs to restore order by New York City’sment in which police should be out—or should Transit Police Department in that city’s subwayget out—of the business of dealing with emo- system and the NYPD in public spaces gener-tionally disturbed individuals, youths, and the ally, in San Francisco’s “Operation Matrix,” andproblems of drunkenness, disorderly behavior, in other cities once again put the police in theand minor offenses. middle of the growing public debate about how to handle disorder.18 Policy and strategy issuesIn this respect, an unwitting alliance was struck once thought resolved again became issues forbetween police and civil libertarians. For many police. What was the proper balance betweencivil libertarians, the police always implicitly individual rights and community interests?threaten the use of authoritative power. In thislibertarian view, juvenile crime, mental illness, Questions arose both within and outside policedrunkenness, and disorder should be the sole ranks about the proper police role in handlingprovince of social workers and advocates. If juveniles, drunks, the homeless, and disorderlyanybody should intervene, it certainly should citizens:not be the police. For police, relief from theseresponsibilities seemingly bailed them out of q Is “zero tolerance” an apt phrase to describeinherently ambiguous and sticky areas that had police order maintenance? What does itgotten them into trouble in the past. Police rec- mean?ognized the social control opportunities that po- q Do police have a role to play in crime preven-licing disorder and drunkenness provided, yet tion by working with youths as other than lawthey were inherently “messy” businesses both enforcement officers?literally and metaphorically: literally becausedrunks are often unkempt, dirty, and unpleasant q Given the lack of resources, what is theto manage; metaphorically because considerable proper police role in dealing with drunks andsocietal ambiguity exists about how to deal with the emotionally disturbed?such problems. q What are the bases of authority for police to handle disorderly persons?Narrowing the focus to serious crime simplifiedlife considerably for police. “Crime fighting” q Are new sources of authority for dealing withwas easy to portray to the public and provided problems available, and how are they bestan occupational vision around which officers developed and deployed?could rally. The demand for order that grew in q What new forms of training are required tocities during the 1980s and early 1990s, how- prepare police for working with troubledever, thrust police back into the middle of the so- youths and adults?cial, legal, moral, and constitutional issues they q What do community collaboration, coopera-had tried to avoid. The publication of “Broken tion, and accountability really mean in anWindows” first popularized the link between operational sense?disorder and fear and hypothesized the linksamong disorder, fear, crime, and urban decay
  19. 19. 13q How are police kept from protecting narrow, we prepared for the legal, constitutional, and parochial interests—such as keeping “strang- moral battles that would be forthcoming when ers” out of neighborhoods and communities? we challenged existing practices and traditions.q How do police refrain from doing what citi- The lieutenant’s response, however, confirmed zens should do for themselves or from usurp- that although the department’s gun strategy ing the roles of private or other governmental deliberately brought it to the verge of illegality, agencies? neither the department nor the unit had devel- oped, or had considered developing, an explicitThese issues, many of which were once regard- policy statement about its antigun tactics thated as resolved in many police circles, demand would communicate its policies to the publiccareful and thoughtful consideration. The rein- and guide and control either the unit’s—or itsvention of policing profoundly challenges officers’—field practices. In all likelihood, thecontemporary police leaders, policymakers, department’s rules and regulations specified thatscholars, and academics to consider new meth- officers would always operate legally and con-ods of active political and community control tained the routine homage to the Fourth Amend-of police discretion and the development of ment and the law regarding search and police guidelines.19 Moreover, it is impossible to write a policy state- ment that covers every issue that officers wouldPolice, Law, and the Constitution confront, and it would be unwise to try. TheA lieutenant in a moderately large police de- former concern, the impossibility of writingpartment recently described the activities of a an effective policy statement, reflects a widelyspecial antiviolence unit he headed that concen- shared belief in policing—and certainly not atrated on confiscating guns from youths. The capricious belief—that practical circumstanceslieutenant was bright, capable, and intimately are so complicated that every exigency cannot befamiliar with Lawrence Sherman’s research on covered in a policy statement. Regarding the lat-gun confiscation in Kansas City and the New ter concern—that it would be unwise to try—thisYork City efforts to reduce gun carrying.20 In the reflects what is often viewed as true in policing:middle of the conversation about gun confisca- some things the police do that take them to thetion, the lieutenant acknowledged somewhat edge of the law have the potential to be so con-ruefully, “We’re really pushing the Fourth troversial that they are best left unmentioned andAmendment here.” I asked him, “What special up to the discretion of officers.policy guidelines did the department provide toofficers to ensure that they acted appropriately, My concern about the lieutenant’s statement wasat least by departmental standards?” My ques- also driven by my observations of patrol practicestion was prompted by my work in New York during the early 1980s in four police departmentsCity with the Transit (subway), Metro North that were known to confiscate large numbers of(Grand Central Terminal), and Long Island Rail- guns. The great majority of guns were confiscatedroad (Penn Station) police departments. I had through “traffic enforcement” at all four sites. Inhelped the departments develop policies and the large midwestern city where I spent the mosttactics to deal with disorderly behavior that had time observing, police (routinely in two-persontaken them to the edge of the law as well. In- patrol cars) would stop cars of “interest,” almostdeed, Robert Kiley, chairman of the Metropoli- invariably legitimately, on the basis of some traf-tan Transportation Authority, and I understood fic violation or faulty equipment. A car of interestvery well that we would be going to court as always contained one or more male youths. All ofsoon as those policies and tactics were imple- the youths were African-American, but nearlymented.21 From the beginning of our activities, everyone in this area of the city was African- American except for some police.
  20. 20. 14In conversations with officers, I learned that they clear from their behavior, as well as from theirdid not stop cars carrying women because a communications with me, that the officerswoman could not be searched unless a female wanted to avoid conflict.police officer was present. More often than not,no female officer was on site, meaning one had In observing such transactions, one could notto be called in from elsewhere in the city—a help but be impressed by the skill, courtesy,process that consumed too much time. Likewise, and reasonableness of most of the officers.the officers did not stop cars driven by males They were dealing with a serious problem, gunover the age of 30 because “even if they were carrying, and behaved in an exemplary fashion.carrying, they probably wouldn’t hurt anyone Nevertheless, it is unclear just how voluntaryexcept in self-defense,” according to one officer. most of the searches I had observed really were. These were really pretext stops. In essence,Once a car was stopped, typically, one officer the police established a quid pro quo: you letapproached the vehicle and asked the driver to me search your car, and I let you out of a ticket.step out. The other officer stood either in back Moreover, I observed officers who interpreted aof the car or on the passenger side. As the driver refusal to allow their search as a threat to theirstepped out of the car, the officer asked for a safety that justified a search. While such transac-driver’s license and for the man to step to the tions or subsequent interpretations may not haverear of the car to be sure that they were out of occurred in Indianapolis or Kansas City duringtraffic. The officer then indicated the basis for the research there, I am reasonably certain thatthe stop—generally something like “you were the lieutenant mentioned above was referring toover the center line” or “your left tail light is practices not dissimilar to those I had observedout.” After some exchange, the officer would in the early 1980s when he discussed “pushingask: “You wouldn’t mind if my partner checked the Fourth Amendment.”22your trunk, would you?” Again, almost invari-ably, the driver acquiesced. And so it pro- The point here is not to judge whether the offi-gressed—the next request was to check inside cers I observed were justified in what they werethe car. (If passengers were in the car, they were doing—clearly, their performance was in lineasked to get out and join the officer and driver at with common practice in the department. Mythe back of the car.) Depending on the circum- concerns, unrelated as they are to squeamishnessstances, the driver and passengers would be about pushing the law, have to do with the fail-“patted down.” ure of police departments to develop clear policy statements regarding some of the serious andWhat I observed, of course, was a street game, complex issues they encounter. (See “Democ-the rules of which almost everyone understood. racy, Policing, and Discretion.”)The traffic offense was legitimate and worthy ofa ticket. Each party was negotiating: the citizen Defining quality police work, recognizing it,to get out of a ticket and the officer to search and managing it are internal police matters andthe car. The request to search the trunk was the should be pursued to improve policing.23 Thatopening gambit in the negotiation, and if the good policymaking reduces litigation is an addeddriver refused, the officer, depending upon his or benefit of competence.her assessment of suspicious behavior, personalsafety, or some other justification, could have in- The current demands placed on police and thesisted on a search. A refusal, however, probably strategic consequences of responding to them inclinched the ticket. It cannot be overemphasized, new and innovative ways underscore the inher-however, how politely and respectfully officers ent complexity of good police work and the per-in this city managed these interactions. It was vasive role discretion plays in policing. The is- sues described above—the inherent assertiveness
  21. 21. 15of the new models of policing, the individual While the complexity of police work and therights versus community interests issue, and the discretion required in policing may be widelylegal and constitutional issues that are raised by acknowledged, the impact of this awareness onnew police tactics—provide further evidence of police practice and administration is not clearlyjust how complex policing is. distinguishable. Arguably, attempts to control and shape police behavior are still largely mired Democracy, Policing, and Discretion Although police discretion cannot be structured by simply proscribing certain actions or issu- ing policy statements, departments that fail to develop clear policy guidelines about complex issues face several serious concerns: q Cutting moral, legal, and constitutional corners, regardless of the high-minded purposes for doing so, creates and perpetuates the morally ambiguous nature of police work in its literal sense—that which line police officers do.a One of the primary consequences of such moral ambiguity is an isolated police culture and its “blue curtain.” q Regardless of the skill and grace of officers in “doing what has to be done,” cutting corners sends improper messages to citizens about how problems should be solved. Both those in- volved with officers in the quid pro quo and those who demand that police “do what has to be done”—whether citizens or politicians—are given a terrible and dangerous message about policing a democratic society. q When failing to wrestle with the complex moral and legal issues of social policies, depart- ments risk litigation, the outcome of which can seriously jeopardize current and future de- partmental efforts to deal with serious problems. The U.S. Supreme Court’s inquiry into criminal investigation was the result of poor police practices and, more important in this con- text, management’s failure to rein in and control detectives. In fact, police departments and cities throughout the United States are currently under serious legal assault from organiza- tions such as the New York and American Civil Liberties Unions and other libertarian and advocacy groups.b q Most problems can be solved, or at least managed, once they are properly understood and a range of alternative solutions has been explored. Perhaps the best example is graffiti in New York City’s subway system. Once thought insoluble, the problem yielded to creative and thorough work. This does not mean it was completely eradicated—New York’s graffiti artists are a dedicated lot—but it is a problem that, with vigilant maintenance of subway cars, can be managed and kept to a minimum. Notes a. Bittner, Egon, Aspects of Police Work, Boston: Northeastern University Press, 1990: 4. Also see Kelling, George L., “How to Run a Police Department,” City Journal 5 (4) (Autumn 1995): 34–45. b. Kelling, George L., and Catherine M. Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in Our Communities, New York: Free Press, 1996: 38–69.
  22. 22. 16in the organizational and control apparatus that sections that dealt with similar issues—was givencharacterized the far simpler, mid-20th century to advise students about how they should use theirview of policing: command and control, quasi- discretion to give or not to give tickets. Yet, themilitary training, factorylike models of supervi- only discretionary police acts that the majority ofsion, and extensive rules and regulations. These citizens will experience or observe will involvecontrol mechanisms, which are irrelevant to traffic violations.street policing, are based on the Taylor modelthat has dominated organizational thinking for My own personal experience with a traffic stopmost of the 20th century.24 is instructive here. On the New Hampshire Ex- pressway, I was stopped going 72 miles per hourDuring my work with the New York City Transit when the limit was still 55. When the officerPolice Department, in subsequent work with approached me, he made the typical request forother police departments, and in reviews of de- my license and registration but asked me as well:partmental rules and regulations, general orders, “Was there any reason why you were going 72and other policy materials, I was struck by the miles per hour?” It was a question. There wasdepartments’ virtual silence about actual police nothing sarcastic, confrontational, or entrappingwork. A review of numerous departmental writ- about it. I said: “No, I was just smelling the barnten materials showed that the majority dealt with and eager to get home. I have no excuse.” Heinternal administrative issues. A significantly replied: “I just can’t give you 17 miles over thesmaller number addressed “hot” issues: use of limit—7, sure. Maybe 10. But not 17.” I under-force, hot pursuit, lineup, and arrest procedures.25 stood and told him so. He wrote the ticket for 64, which was 9 over the limit. I didn’t like get-Frank Vandall, Professor of Law at Emory ting the ticket, but I had no sense of injustice orUniversity, made a similar observation about anger. His opening question, which I heard as atraining materials in 1976: “An examination of sincere request for information about whethercontemporary police training materials reveals I had some justification for speeding, acknowl-that they fail to deal with the concept of discre- edged his discretionary authority and acknowl-tion in law enforcement. They use such vague edged, as well, that I might have had a goodphrases as ‘proper action,’ ‘necessary action,’ reason, and he was prepared to consider it. Theand ‘cool thinking’ to gloss over the common respect with which the officer treated me engen-discretionary problems involved in dealing with dered my respect for him.discretionary situations.”26 The gaps in police training and guideline devel-To give another example, I was asked recently to opment that are so typical, however, retard thereview an eastern State’s recruit training materials development of police knowledge, impede theconsidered by many to represent state-of-the-art development of genuine professionalism, dimin-training for community policing. One of the first ish the quality of police services, invite the usesections I checked was “Traffic Stops.” After an of personal whim as the basis for discretionaryintroduction that included pieties stating that the judgments, and unnecessarily expose police of-purpose of traffic stops was not to give tickets but, ficers and departments to liability suits. Such cir-rather, to educate citizens about traffic safety, the cumstances are not unique to American policing.section outlined, in great detail, how to make a Joanna Shapland and Jon Vagg identify similartraffic stop. Properly, the section communicated circumstances in England:considerable concern about officer safety. (In-deed, it dwelled on the subject to such an extent [S]enior officers did not regard area beat work asthat I could not help but infer that the purpose of a specialism within uniformed work or even as atraffic stops was to keep officers safe.) But that is particularly skilled task, in the way that they sawall there was. Not one word—and I checked other IRV [immediate response vehicles] and public
  23. 23. 17 order work. Special training, meetings on good provides sophisticated guidelines about a very practice, and manuals of relevant skills were complex issue confronting police departments in conspicuously absent—in contrast to the posi- cities near national borders—the extent to which tion in many other areas of police work. ABOs local police should look for violations of national [area beat officers] were thrown on their own re- immigration laws. (See Appendix B, “San Diego sources and were often supervised by sergeants Police Department Policy Statement.”) This prob- who had joined the force at the time when pa- lem could easily have been left to officer “discre- trols in panda cars [small cars used by patrol of- tion,” that is, to ignore it administratively and let ficers] were being introduced. These sergeants officers “work it out” in the field. Instead, the de- had now to learn what area beat policing was partment thought through its values, mission, and about at the same time as their constables were functions and elaborated a policy that put public finding out how to do it. The result was ironic. safety and harmony above aggressive attempts to The police themselves had precious little to ferret out undocumented aliens. draw on as a model other than television images of Dixon of Dock Green [a previously popular What Is the Future of Guidelines English television show about police].27 Development?The issue here is the state of the art of guidelines, The shifts in policing now under way cannotpolicies, rules and regulations, and training mate- occur unless police departments are reorganizedrials and not necessarily how police actually to manage literal police work. This is why manywork. I continue to walk, ride in patrol cars, and community policing programs often fail to meetride bicycles with officers. The skill, sensitivity, their stated goals. For most police departments,and capability of many police officers—such as organizational and administrative “business asI have described above and have experienced usual” is still the rule. Most police departmentsthroughout my career in police research—is have developed few materials about the day-to-striking. (I have seen terrible policing as well.) day problems that confront and, at times, plague patrol officers.Two points stand out. First, police are almostuniformly unable to articulate what they do, why Moreover, a body of police management litera-they do it, and how they do it. Most, when que- ture is being developed that reflects more realis-ried, resort to the jargon of the field: “common tically the way police work is carried out.29sense,” “proper action,” and so forth. Second, Issues such as the role accountability of midlevelvirtually all of their order maintenance, peace- managers, supervision in a highly decentralizedkeeping, and conflict resolution activities are un- organization, and leadership have been broughtofficial. Except for personal notes officers take to the center of police attention. One such ex-down, no records are kept of these activities. It periment that has received enormous publicityis only a slight exaggeration to say that the only is the interactive control mechanism calledway that the activities can become official is if COMPSTAT that William Bratton borrowedsomeone files a complaint against the officer.28 from the private sector and adapted for NYPD midlevel managers (precinct commanders).30There are signs of hope. In some cities, policemanagers go beyond paying mere lip service to The method, first described by Robert Simoncomplexity and discretion and find alternative of the Harvard Business School, combines man-models of training, supervision, and control that re- agement, supervisory, and peer control into aflect the realities of how police work is carried out. highly visible process that rivets the midlevelThe San Diego Police Department’s policy state- manager’s attention on precinct problems.31 Asment on undocumented persons, for example, exciting and promising as this innovation is,
  24. 24. 18however, it is still unclear whether such methods William W., and Peter Knobler, Turnaround:will be adapted to line police or how depart- How America’s Top Cop Reversed the Crimements can develop guidelines to shape line Epidemic, New York: Random House, 1998.officers’ discretion—the most widespread andinvisible discretion in criminal justice. 6. Newton, Jim, “Police: New York Police Claim Their New Militarism Has Led to the City’sDespite the complexity of police work, generic Startling Drop in Crime,” Los Angeles Times,sets of guidelines about the substantive problems December 24, 1995, A1.with which police deal—for example, disorderlybehavior in a downtown area—can be devel- 7. Ibid.oped. Such guidelines can serve as the basis forpolice training, supervision, and practice; iden- 8. Ibid.tify competent police work and provide the basisfor officer accountability; help to articulate a 9. The Louima incident involved the torture ofgenuinely professional police point of view; a Haitian immigrant by New York City policeand, yes, even be used to defend police actions officers—a truly ugly episode. In the Dialloin litigation. incident, 4 officers fired 41 shots and killed an unarmed African man.Notes 10. The Knapp Commission was a 1972 investi-1. For a discussion of “doing something, now,” gation of corruption in the New York City Policesee Bittner, Egon, The Functions of Police in Department that many believe led to a depart-Modern Society, Cambridge, MA: Oelgeschlager, mental preoccupation with police corruption andGunn and Hain, 1980. abuse.2. Marans, Steven, and Jean Adnopoz, The 11. Kelling and Coles, Fixing Broken Windows,Police-Mental Health Partnership: A Commu- 141–143.nity-Based Response to Urban Violence, NewHaven, CT: Yale University Press, 1995. 12. Cheh, Mary M., “Constitutional Limits on Using Civil Remedies to Achieve Criminal Law3. For the best summary of this research, see Objectives: Understanding and Transcending theMary Ann Wycoff, “The Role of Municipal Criminal-Civil Law Distinction,” The HastingsPolice Research as a Prelude for Changing It,” Law Journal 42 (July 1991): 1325–1413.Mimeograph, Washington, DC: Police Founda-tion, 1982. 13. For a discussion of civil initiatives, see Cheh, “Constitutional Limits.”4. Goldstein, Herman, Problem-Oriented Polic-ing, Philadelphia, PA: Temple University Press, 14. “Testilying” refers to systematic police lying1990. during court testimony.5. Many have questioned whether Bratton was 15. See Kelling and Coles, Fixing Brokenreally an advocate of community policing. See Windows, especially Chapter 3.Kelling, George L., and Catherine M. Coles,Fixing Broken Windows: Restoring Order and 16. Wilson, James Q., and George L. Kelling,Reducing Crime in Our Communities, New “Broken Windows: The Police and Neighbor-York: Free Press, 1996. Also see Bratton, hood Safety,” The Atlantic Monthly (March 1982): 29–38.
  25. 25. 1917. Skogan, Wesley, Disorder and Decline: Crime 24. Kelling, George L., and William J. Bratton,and the Spiral of Decay in American Neighbor- “Implementing Community Policing: The Ad-hoods, New York: The Free Press, 1990. ministrative Problem,” in Perspectives on Polic- ing, No. 17, Cambridge, MA: U.S. Department of18. “Operation Matrix” was a joint police/social Justice and Program in Criminal Justice Policywork effort to reduce disorder and deal with and Management, John F. Kennedy School ofhomelessness, especially in parks. Government, Harvard University, July 1993.19. Livingston, Debra, “Police Discretion and 25. Kelling and Coles, Fixing Broken Windows,the Quality of Life in Public Places: Courts, 182–185.Communities, and the New Policing,” ColumbiaLaw Review 97 (3) (April 1997): 551–672. 26. Vandall, Frank, Police Training for Tough Calls: Discretionary Situations (limited edition),20. Sherman, Lawrence W., James W. Shaw, and Atlanta, GA: Emory University, Center forDennis P. Rogan, The Kansas City Gun Experi- Research in Social Change, 1976.ment, Research in Brief, Washington, DC: U.S.Department of Justice, National Institute of 27. Shapland, Joanna, and Jon Vagg, Policing ByJustice, January 1995, NCJ 150855. the Public, London: Routledge, 1988.21. For a detailed discussion of the legal issues 28. Kelling, George L., “How to Run a Policeand how they were resolved, see Kelling and Department,” City Journal 5 (4) (Autumn 1995):Coles, Fixing Broken Windows, 38–69. 35–44.22. For a brief description of the gun confisca- 29. See, for example, Sparrow, Malcolm K.,tion program in Kansas City and an anecdote Mark H. Moore, and David M. Kennedy, Be-from Indianapolis, see Sherman, Shaw, and yond 911: A New Era for Policing, New York:Rogan, The Kansas City Gun Experiment, 5–6. Basic Books, 1990.23. Goldstein, Herman, “Confronting the Com- 30. Bratton and Knobler, Turnaround.plexity of Police Functioning,” in Discretion inCriminal Justice: The Tension Between Individu- 31. Simon, Robert, The Mental Health Practi-alization and Uniformity, ed. Lloyd E. Ohlin and tioner and the Law: A Comprehensive Hand-Frank J. Remington, Albany, NY: State Univer- book, ed. Lawrence E. Lifson and Robert I.sity of New York Press, 1993: 53; and Goldstein, Simon, Cambridge, MA: Harvard UniversityHerman, “Police Policy Formulation: A Proposal Press, 1998.for Improving Police Performance,” MichiganLaw Review 65 (April 1967): 1123.
  26. 26. 21The Discovery of Discretion and Its MeaningIn 1965, Frank Remington wrote, “The police Survey of Criminal Justice Agenciesshould play a major role in fashioning andimplementing a proper law enforcement policy In 1953, Supreme Court Justice Robert H. Jack-for their community.”1 Remington drew an anal- son, believing criminal justice to be in a state ofogy between the Federal Trade Commission, an crisis, called for a major national study of crimi-administrative agency with the responsibility to nal justice agencies by the American Bar Asso-develop enforcement policy, and local police ciation (ABA). At first administered by the ABAdepartments, which have a similar responsibility. and funded by the Ford Foundation, the surveyThis was a radical departure from past thinking also became the first project of the ABF, theabout policing. Legislatures and city councils ABA’s newly created research arm. As first con-made laws, and the police responsibility was to ceived, the study was designed to apply method-enforce them impartially. A generation of police ologies used in previous local surveys: officialhad been reared on the idea that law enforce- data would be analyzed to learn the extent toment was what they did: individuals broke the which agencies adhered to prescribed, the police arrested them. The police job was Not atypically, expert consultants devised thejust that simple. original project and secured its funding. O.W.Implicit in Remington’s proposal was an alterna- Wilson, the dominant police theorist of the 20thtive view of the police as a de facto administra- century, for example, compiled the checklist thattive agency of city government whose work was was to be the foundation for the study. Othercharacterized by repeated use of discretionary experts helped devise similar plans for examin-judgment. This discretion existed not only at ex- ing other criminal justice agencies.3 Hermanecutive levels but also at every level of the police Goldstein, who was a staff member of the origi-organization, especially with the practicing po- nal survey, described the early plans:lice officer. Remington’s views were based on If the ABF survey had followed its originalresearch he directed during the late 1950s, spe- plan for that portion of its inquiry relating tocifically the American Bar Foundation (ABF) the police, it would not have added much toSurvey of Criminal Justice. the sparse knowledge then available. Like theUntil the 1950s and 1960s, surveys of police and police field itself, the plan was heavily influ-criminal justice agencies relied on official re- enced by the prevailing perception of whatports and statistics.2 Generally conducted on a was important in policing—the technical andcity level by local elites aided by professional administrative aspects of running a policeconsultants like Bruce Smith, police surveys agency. The detailed agenda for inquiry iden-studied the extent to which local police depart- tified 15 different categories of informationments followed the reform model of policing, that were to be systematically acquired, withespecially their adherence to its organizational all but two categories relating to the organiza-and administrative principles. What police did— tion, administration, staffing, and equipping oftheir literal work—remained out of public view. a police agency. The product would have been an inventory of the degree to which the police
  27. 27. 22 agencies conformed with the then-prevalent q Discretion was found to be used at all levels standards for managing a police agency.4 of criminal justice organizations. The idea that police, for example, made arrest decisionsUnder the leadership of Remington and Lloyd simply on the basis of whether or not a lawOhlin (Emeritus Touroff-Glueck Professor of had been violated—as a generation of policeCriminal Justice at Harvard Law School), how- leaders had led the public to believe—wasever, the survey went in a different direction. simply an inaccurate portrayal of how policeIn some respects, the new direction was an out- worked.growth of a serendipitous mix of the University q Low-level decisionmaking by line personnelof Wisconsin Law School’s “law in action” in light of practical and real-life considera-tradition as embodied by Remington and the tions was found to be a significant contributorChicago School of Sociology’s tradition of field to the crime control and problem-solving ca-observation as represented by Ohlin, a Ph.D. pacity of criminal justice agencies. This wasfrom the University of Chicago. true not only for police but for prosecutorialOhlin notes that Remington, the first staff direc- and other decisionmaking personnel as well.tor of the study, “decided from the outset that q Criminal law was used to solve many socialthe ABF survey would be different from earlier problems, not just serious crimes.studies, much less concerned with official sum- q Behaviors designated as unlawful in criminalmary statistics and more concerned with the codes, such as assault, were found to be ex-analysis of the criminal justice system in daily traordinarily diverse in nature and includedoperation.”5 In other words, the survey would everything from private debt settlement andstudy law as it operated rather than law as it was spousal abuse to attacking strangers.found in the books and, as a consequence, wouldrely heavily on observational data of low-level q The policies of each criminal justice agencydecisionmaking. Field staff filled out the check- were found to have an impact on other crimi-lists devised by the experts to be true to the nal justice agencies.7original proposal, but only for that purpose.6Remington and Ohlin’s decision to reshape Given the pervasive use of discretion in daily po-the survey transformed it into one of the most lice work, the most obvious question the surveyimportant social/legal research studies of the raised was why legal scholars, criminal justice20th century. academics, and practitioners had failed to note it in the past—why were these findings such aInitially, three sites were selected for the study: surprise.8 The answer, of course, testified to theKansas, Michigan, and Wisconsin. Additional power of reform ideology and its imagery. Assites were to be added later. After the survey Samuel Walker notes:began in 1956, however, researchers, confrontedby the enormity of the study and the data set, The intriguing question, of course, is how 40decided to limit their study to the original three crime commissions, which involved the bestsites. minds of their day—Felix Frankfurter and Roscoe Pound, among others—could fail toStudy Findings see such a crucial feature of the administra- tion of justice. The answer is that phenomenaThe study focused on the line personnel in which are self-evident to one generation arecriminal justice agencies—police, prosecutors, not necessarily evident to others. This high-judges, and corrections officers—conducting lights the role of paradigms in scientifictheir routine work. Conventional thinking was research. Paradigms describe observed phe-turned on its head: nomena, define problems, and guide research.