Journal of Criminal Law and Criminology, Vol. 101, 2011
56 Pages Posted: 29 May 2011 Last revised: 9 Mar 2012
Date Written: May 27, 2011
Police departments have broad policy-making discretion to arrest some offenders and permit others to engage in criminal misconduct. The way police departments exercise this discretion has harmful distributive consequences. Yet, courts do virtually nothing to constrain departmental discretion. This is because constitutional criminal procedure is preoccupied with individual officer discretion and assumes that the most significant decision moment an officer faces is distinguishing guilt from innocence. I argue that this framing occludes the vast policy-making discretion police departments wield and the central choice they confront: distinguishing between the guilty. This Article identifies the mechanics and anti-egalitarian consequences of departmental discretion. Departmental discretion has three dimensions: geographic deployment, enforcement priority, and enforcement strategy. Through these policy choices, police departments are able to distribute the costs and benefits of proactive policing within a jurisdiction. Case studies of narcotics enforcement and "quality of life" policing concretely demonstrate how departmental choices create inegalitarian distributive consequences. I argue that courts and other public institutions ought to prevent such consequences. This prescription requires conceptualizing arrests, and proactive policing more generally, in terms of distributive justice. Unlike dominant theories of criminal enforcement, distributive justice offers a normative vision that privileges democratic equality. Distributive justice suggests that, for crimes that are subject to proactive policing, probable cause alone should not justify arrest. Rather, police departments should also be required to demonstrate that a given arrest is part of an egalitarian distribution of such.
Keywords: criminal law, policing, criminal procedure, discretion, equality, race, distributive justice, retribution, utilitarian
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