Discretionless Policing: Technology and the Fourth Amendment

37 Pages Posted: 7 Mar 2006 Last revised: 26 Jun 2013

See all articles by Elizabeth E. Joh

Elizabeth E. Joh

University of California, Davis - School of Law

Date Written: 2007


What if we could eliminate police discretion from traffic stops? What if a computer could accomplish what police officers do, with efficiency and accuracy, and more important, without racial prejudice? How would this technology work? Would its use be consistent with the Fourth Amendment? And if constitutional, would the public accept this automated enforcement? Could the war on drugs continue, once traffic stops became discretionless?

This scenario isn't just a thought experiment. The technology and a plan to automate law enforcement exist, yet neither has received serious attention. An automated enforcement program would eliminate stops based not only on excessive speeding, but on nearly all the most frequently used justifications to stop drivers, including record checks and other vehicle code violations. If the war on drugs continued to exist, it would no longer use the traffic stop. Recent federal regulatory approval for the technical standards for the federal intelligent highway initiative shows that this is a real and practicable solution to the problem of police discretion in traffic stops, one that sidesteps entrenched difficulties in Fourth Amendment law and politics.

Keywords: police, criminal procedure, automated enforcement, artificial intelligence, autonomous vehicles, traffic stops

Suggested Citation

Joh, Elizabeth E., Discretionless Policing: Technology and the Fourth Amendment (2007). California Law Review, Vol. 95, p. 199, 2007, UC Davis Legal Studies Research Paper No. 72, Available at SSRN: https://ssrn.com/abstract=888806

Elizabeth E. Joh (Contact Author)

University of California, Davis - School of Law ( email )

400 Mrak Hall Drive
Davis, CA 95616-5201
United States

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