• Selected
• Entire List

Abstract:
In post-9/11 America, preventing the next terrorist attack ranks as law enforcement's top priority. This is as true for local police departments as it is for the FBI. This has led many advocates of stronger enforcement of U.S. immigration law to recast their efforts as anti-terrorism campaigns. As part of this endeavor, these advocates have called for local police to become involved in enforcing immigration law, and their allies in both the executive and legislative branches of the federal government have taken a number of actions designed to force local police to do this. Surprisingly, local law enforcement has for the most part vehemently refused to accept this new responsibility, saying that becoming involved in immigration enforcement will actually make the public not safer, but less safe, from criminals and even from terrorists. The reasons for this have much to do with the success of community policing over the last twenty years. Thus the refusal of state and local law enforcement to become involved in immigration enforcement both illuminates a turning point in American policing, and teaches us important lessons in how we must go forward in the war on terror if we are to succeed.

immigration enforcement, police, local police, police power, war on terror, national security, borders, CLEAR Act, crime, community policing

Abstract:
For years, criminologists have directed research efforts at questions at the intersection of race and law enforcement. This has not always been welcomed by practitioners, to put it mildly; rather, many police officers view research focused on race and policing as nothing short of an attempt to paint the policing profession and police officers as racist.

This commentary argues that, to the contrary, research into race and policing can still impart to everyone in our society, including police officers and their law enforcement institutions, much that they do not know about how race plays a role in both routine and non-routine police activity. For everything that police believe that they know about race and law enforcement based on their own experience, social science research has taught them much that they do not know - and has addressed many long-held misconceptions of which most officers were not aware. Several examples are discussed.

policing, criminology, race, race and policing, racial profiling, quality of life policing

Abstract:
In his book, "War by Other Means", John Yoo, a former high-ranking official in the U.S. Department of Justice's Office of Legal Counsel under President George W. Bush, attempts to advance legal justifications for many of the Administration's most controversial programs in the war on terror, including coercive interrogations, the National Security Agency's wiretapping programs, military commissions, and The USA PATRIOT Act. Yoo, perhaps best known as the author of several of the so-called "torture memos" that the Administration used as the legal underpinning for its harsh questioning of detainees, argues that the president's constitutional role as commander in chief in a time of war allows almost any imaginable exercise of power by the executive that might be linked, however tenuously, to national security. In this essay, I assert that Yoo cannot be correct. His expansive reading of the wartime power of the executive makes the other branches of government, and even the Constitution itself, into an afterthought for any purpose the president may unilaterally ordain. While our system of government clearly gives the president considerable power to wage war and tend to foreign affairs, Yoo's vision takes us beyond protecting and defending the Constitution, to destroying it.

: constitutional law, constitution, commander in chief, war, wartime, executive, executive power, executive branch, war on terror, September 11.

Abstract:
Since the attacks of September 11, 2001, law enforcement agencies have actively sought partnerships with Muslim communities in the U.S. Consistent with community-based policing, these partnerships are designed to persuade members of these communities to share information about possible extremist activity. These cooperative efforts have borne fruit, resulting in important anti-terrorism prosecutions. But during the past several years, law enforcement has begun to use another tactic simultaneously: the FBI and some police departments have placed informants in mosques and other religious institutions to gather intelligence. The government justifies this by asserting that it must take a pro-active stance in order to prevent attacks by terrorists from outside the U.S., and by so-called homegrown cells from within. The problem is that when the use of informants in a mosque becomes known in a Muslim community, people within that community - the same people that law enforcement has so assiduously courted as partners against extremism - feel betrayed. This directly and deeply undermines efforts to build partnerships, and the ability to gather intelligence that might flow from those relationships is compromised or lost entirely.

As it stands, the law - whether in the form of Fourth Amendment doctrine, defenses in substantive criminal law, or cases and statutes supporting lawsuits against government surveillance - offers little help in resolving this dilemma. Further, change in either statutes or Supreme Court doctrine that might help address the problem seems vanishingly unlikely. Locally negotiated agreements on the use of informants represent the best alternative route toward both security against terrorists and keeping Muslim communities inclined to assist in anti-terrorism efforts. In these agreements, law enforcement might agree to limit some of its considerable power to use informants, in exchange for the continued cooperation of the community. The article discusses how such agreements might be reached, what they might strive to do substantively, and also addresses the problems they would encounter.

informants, law enforcement, community policing, American Muslims, Muslim communities, terrorism, home-grown terrorism, intelligence, negotiation, community agreements, FBI, police departments, entrapment

Abstract:
Racial profiling of drivers - often called "driving while black" - has taken an increasingly important role in the public debate on issues of race and criminal justice. It is one of the few such issues that has penetrated not only the public discourse, but the legislative process as well. This article takes three different approaches in attempting to explain that racial profiling is important not only for its own sake, but because it is a manifestation - both a symbol and a symptom - of all of the most difficult problems that we face at the intersection of race and criminal justice. First, the stories of a number of African Americans, selected not for their egregiousness but for their typicality, are used to illustrate the personal pain, humiliation, and anguish racial profiling inflicts on individual people of color. Second, the article marshalls statistical evidence, including the author's own study of four metropolitan areas in Ohio, to show that profiling is not an exaggeration of a few isolated incidents into a social trend, but a real and measurable phenomenon. Third, the bulk of the article aims to show how racial profiling is connected to many of the different issues of race and criminal justice that are on the table today, such as stereotypes of black criminality, rational discrimination by law enforcement, and disproportionate rates of imprisonment among blacks, to name a few. The upshot of the analysis is that "driving while black" may serve as a way for many in the majority to begin to come to grips with issues of race and criminal justice in ways that they have not before.

pretextual traffic stops, race-based traffic stops, racial profiling, discrimination, illegal search, illegal search, probable cause, reasonable suspicion, statistics

Abstract:
In Hudson v. Michigan, a knock-and-announce case, Justice Scalia's majority opinion came close to jettisoning the Fourth Amendment exclusionary rule. The immense costs of the rule, Scalia said, outweigh whatever benefits might come from it. Moreover, police officers and police departments now generally follow the dictates of the Fourth Amendment, so the exclusionary rule has outlived the reasons that the Court adopted it in the first place. This viewpoint did not become the law because Justice Kennedy, one member of the five-vote majority, withheld his support from this section of the opinion. But the closeness of the vote on the rule's survival, and the Court's 2009 opinion in Herring v. U.S., should motivate renewed discussion of what should replace it. But recently published empirical findings cast doubt on the Court's premise in Hudson that the bad old days of search and seizure violations lay behind us. On the contrary, viewing the data conservatively, roughly a third of all search and seizure activity violates the Fourth Amendment. Thus what the situation calls for is a set of proposals that can serve as a substitute for the exclusionary rule if it disappears, but which can also work equally well to brace up the rule if it stays in place.

Fortunately, the law, criminology, and technology can combine to provide a viable set of answers for both possibilities. First, a system for tracking police search and seizure activity, based on successful work on early intervention systems now used to head off police misconduct, holds great promise for advancing the ability of supervising officers to assure that those under their commands obey the law. Second, strengthening the ability of members of the public allegedly subjected to police misconduct to bring suit for redress in federal court would create real incentives for better police behavior. This would do much to address the issue of Fourth Amendment violations that uncover no evidence, making the exclusionary rule an inapplicable remedy. Third, new technologies can enable police departments to make video and audio recordings of nearly all police activity. Coupled with appropriate evidentiary presumptions, these devices can change police behavior, including search and seizure activity. The article will examine these three possibilities, explain their superiority to other substitutes for the exclusionary rule, and will also examine their drawbacks.

Fourth Amendment, search and seizure, policing, exclusionary rule, evidence, police accountability, Herring v. U.S., Hudson v. Michigan, criminology, suppression, suppress, video, search, illegal search, exclude

Abstract:
Under a Constitution that restrains the government vis-a-vis the individual and that puts some limits on what the authorities may do in the pursuit of the guilty, the power of the police to stop any particular driver, at almost any time, it seems oddly out of place. And with the words "equal justice under law" carved into the stone of the Supreme Court itself, one might think that the use of police power in one of its rawest forms against members of particular racial or ethnic groups might prompt the Court to show some interest in curbing such abuses. The defendant-petitioners presented both of these arguments-the almost arbitrary power over any driver inherent in the "could have" approach, and the racially biased use of traffic stops-to the Court. Yet the Court paid little attention to these obvious implications of its decision. Whren is more than a missed opportunity for the Court to rein in some police practices that strike at the heart of the ideas of freedom and equal treatment; Whren represents a clear step in the other direction-toward authoritarianism, toward racist policing, and toward a view of minorities as criminals, rather than citizens.

Fourth Amendment, civil rights, racial discrimination, Whren v. United States, pretextual traffic stop, reasonable suspicion, search, seizure

Abstract:
In just the past few terms, the Supreme Court has issued several decisions that have increased police discretion to stop and question drivers and passengers and search both these persons and their vehicles. These cases are only the latest in a line that has slowly but surely made it ever easier for police to do these things without being concerned with procedural or constitutional obstacles.

This article traces the history of those cases, and argues that, however much protection the Fourth Amendment might accord to an ordinary citizen in his or her home or even walking down the street, it is almost meaningless when applied to one of the most common activities of everyday life in the late twentieth century: driving or riding in a vehicle. Indeed, for a driver or passenger, it is no exaggeration to say that the Fourth Amendment's safeguards against unreasonable searches and seizures simply do not exist in any practical sense. A police officer can follow the law to the letter and at the same time feel quite confident of being able to stop and search almost anyone of interest, regardless of the existence of probable cause or even reasonable suspicion to believe that a crime has been committed. While this regime no doubt benefits law enforcement's ability to ferret out crime, especially drug-related offenses, it also carries substantial unacknowledged costs in the form of searches and seizures of law-abiding persons, many of whom are searched on multiple occasions. Moreover, these costs to innocent persons are not paid by everyone, but instead are distributed based on the race and ethnicity of drivers and passengers. The article discusses these practices and offers four proposals for reform.

Fourth Amendment, search and seizure, discrimination, civil rights, police discretion, law enforcement, Whren v. United States, Ohio v. Robinette, Maryland v. Wilson

Abstract:
The Use of Force Working Group was convened in October of 2008 to study police use of electronic control devices, better known as Tasers. Allegheny County (Pa.) District Attorney Stephen A Zappala, Jr. appointed the Working Group in the wake of an incident in which a person died following a Taser exposure at the hands of local police officers.

This Report concludes that Tasers can be worthwhile and safe weapons in the police arsenal, but only if they are used consistent with proper policy, training, supervision and accountability. Anything less makes the use of these weapons a risky choice from the point of view of both police officers and the public. The Report discusses the scientific and medical research on Tasers, and sets out the best practices that should appear in any Taser policy. The Report also makes recommendations concerning situations in which Tasers should never be used, and situations in which police should only use these devices with extreme caution. It also contains a first-person description of what it feels like to be shot with a Taser, based on the experience of the Report’s primary author.

Tasers, electronic control devices, ECDs, law enforcement, use of force policy, justification, police tactics, police equipment, criminal procedure, excessive force, training, supervision, accountability, safety, risks, Use of Force Continuum