Unpacking New Policing: Confessions of a Former Neighborhood District Attorney

82 Pages Posted: 12 Nov 2003 Last revised: 23 Jul 2012

See all articles by Alafair S. Burke

Alafair S. Burke

Hofstra University - Maurice A. Deane School of Law

Date Written: July 23, 2012


This Article attempts to reframe a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of "new discretion" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called "communities" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism.

This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.

Keywords: void for vagueness, police discretion, social norms, community policing, criminal procedure

JEL Classification: K10, K14, K42

Suggested Citation

Burke, Alafair S., Unpacking New Policing: Confessions of a Former Neighborhood District Attorney (July 23, 2012). Washington Law Review, Vol. 78, p.985, 2003, Available at SSRN: https://ssrn.com/abstract=436580 or http://dx.doi.org/10.2139/ssrn.436580

Alafair S. Burke (Contact Author)

Hofstra University - Maurice A. Deane School of Law ( email )

121 Hofstra University
Hempstead, NY 11549
United States
516-463-4243 (Phone)
516-463-4800 (Fax)

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