61 Pages Posted: 19 Apr 2007
Crime, Legitimacy, and Testilying draws upon Tom Tyler's highly influential legitimacy theory (that perceptions of legitimacy play a crucial role in inducing voluntary compliance with the law) to make the novel but utilitarian argument that more policing of the police - by holding officers accountable for sanctionable and criminal conduct - is likely to have the counter-intuitive effect of reducing crime in the general population. The Article makes this argument by following Mari Matsuda's suggestion and looking to the bottom, i.e., adopting the perspective of those in minority and poor communities. From this (disad)vantage point, police actions that are normally associated with over-enforcement, such as racial profiling and the use of excessive force, also signal a type of under-enforcement. Except in the most egregious cases, law enforcement officers can engage in otherwise sanctionable conduct usually without fear of consequences; in short, officers themselves often operate in and benefit from a zone of under-enforcement. This in turn undermines police legitimacy and induces non-compliance with the law.
As a case in point, the Article turns its focus on "testilying" (the name given to police perjury), the paucity of prosecutions, and the resulting legitimacy failure. The Article then proposes reforms to reduce the occurrence of "testilying" and punish its offenders. The Article's conclusion, which should be acceptable to civil libertarians and law and order advocates alike, is that the collateral benefits of such increased policing of the police far outweigh the drawbacks. In fact, increased policing of the police would not only have the collateral consequence of reducing crime across the board. It would also benefit the police themselves by leading to safer and better policing.
Keywords: criminal law, criminal procedure, race, class, legitimacy, testilying, discrimination
Suggested Citation: Suggested Citation
Capers, I. Bennett, Crime, Legitimacy, and Testilying. Indiana Law Journal, Vol. 83, 2008; Hofstra Univ. Legal Studies Research Paper No. 07-15. Available at SSRN: https://ssrn.com/abstract=981416