Title: "Broken Windows" and Police Discretion.
Series: Research Report
Author: George L. Kelling
Published: National Institute of Justice, Ocotber 1999
Subject: Police planning and management, Police training, Police
personnel
77 pages
182,000 bytes
-------------------------------
Figures, charts, forms, and tables are not included in this ASCII plain-text
file. To view this document in its entirety, download the Adobe Acrobat
graphic file available from this Web site or order a print copy from NCJRS
at 800-851-3420 (877-712-9279 for TTY users).
-------------------------------
U.S. Department of Justice
Office of Justice Programs
National Institute of Justice
National Institute of Justice
Research Report
"Broken Windows" and Police Discretion
-------------------------------
U.S. Department of Justice
Office of Justice Programs
810 Seventh Street N.W.
Washington, DC 20531
Janet Reno
Attorney General
Raymond C. Fisher
Associate Attorney General
Laurie Robinson
Assistant Attorney General
Noel Brennan
Deputy Assistant Attorney General
Jeremy Travis
Director, National Institute of Justice
-------------------------------
Office of Justice Programs
World Wide Web Site
http://www.ojp.usdoj.gov
National Institute of Justice
World Wide Web Site
http://www.ojp.usdoj.gov/nij
-------------------------------
"Broken Windows" and Police Discretion
George L. Kelling
Professor, School of Criminal Justice, Rutgers University
Research Fellow, John F. Kennedy School of Government, Harvard
University
Senior Fellow, Manhattan Institute
October 1999
NCJ 178259
Jeremy Travis
Director
Steve Edwards
Program Monitor
This program was supported under award number 95-IJ-CX-0013 to
George L. Kelling by the National Institute of Justice, Office of Justice
Programs, U.S. Department of Justice. Findings and conclusions of the
research reported here are those of the author and do not necessarily reflect
the official position or policies of the U.S. Department of Justice.
-------------------------------
The National Institute of Justice is a component of the Office of Justice
Programs, which also includes the Bureau of Justice Assistance, the
Bureau of Justice Statistics, the Office of Juvenile Justice and Delinquency
Prevention, and the Office for Victims of Crime.
-------------------------------
Contents
Foreword
Preface
Introduction
A Short History of Police Accountability
The Urgency of Influencing Police Work
--Preventive Interventionist Policing
--Reopened Issues for Policing
--Police, Law, and the Constitution
--What Is the Future of Guidelines Development?
The Discovery of Discretion and Its Meaning
--Survey of Criminal Justice Agencies
--Study Findings
The Police Guidelines Movement
Development of Police Guidelines
--Recognizing the Complexity of Police Work
--Acknowledging Police Use of Discretion
--Recognizing and Confirming How Police Work Is Conducted
--Advancing Values
--Putting Police Knowledge Forward
--Undergoing Development by Practicing Police Officers and Citizens
--Undergoing Clear and Broad Public Promulgation
--Emphasizing Police Adherence to a Process
--Establishing Accountability
--Receiving Recognition as an Ongoing Process
Conclusion
Appendix A: Order Maintenance Training Bulletin 96--1
Appendix B: San Diego Police Department Policy Statement
-------------------------------
Foreword
The past two decades have seen growing awareness of the complexity of
police work, an examination of the use of discretion in officers' daily
policing activities, and a better understanding of the critical role
community leaders play in the vitality of neighborhoods.
Noted criminologist George L. Kelling has been involved in practical
police work since the 1970s, working day-to-day with officers in
numerous agencies in all parts of the country and serving as an adviser to
communities, large and small, looking for better ways to integrate police
work into the lives of their citizens.
In the context of the "broken windows" metaphor, proposed by James Q.
Wilson and Dr. Kelling in 1982 in The Atlantic Monthly, this Research
Report details how an officer's sensitive role in order maintenance and
crime prevention extends far beyond just arresting lawbreakers--how
discretion exists at every level of the police organization. Historically,
police have asserted authority in many ways, often having nothing to do
with arrest. Dr. Kelling takes a special interest in the use of discretion to
exercise the core police authority, enforcement of the law.
He wants to understand better why officers make arrests in some
circumstances and not others, especially when they are dealing with the
more mundane aspects of policing--such as handling alcoholics and
panhandlers and resolving disputes between neighbors. And he notes that
police officers themselves are often unable to articulate the precise
characteristics of an event that led them to act as they did. Kelling
maintains that officers must and should exercise discretion in such
situations. But giving police officers permission to use their professional
judgment is not the same as endorsing random or arbitrary policing. In his
view, policing that reflects a neighborhood's values and sense of justice
and that understands residents' concerns is more likely to do justice than
policing that strictly follows a rule book.
Police work is in transition within commu-nities. The police are more
frequently involved in creating and nurturing partnerships with community
residents, businesses, faith-based organizations, schools, and
neighborhood associations. Their role in the justice process requires even
greater commitment to developing policy guidelines that set standards,
shape the inevitable use of discretion, and support community
involvement. We hope this Research Report will help inform the
continuing debate over the proper exercise of police discretion in this new
era of policing.
Jeremy Travis
Director
National Institute of Justice
Preface
During the late 1960s and early 1970s, Frank Remington, Herman
Goldstein, and others advanced the notion that police departments are
comparable to administrative agencies whose complex work is
characterized by considerable use of discretion. Moreover, they advocated
the development of guidelines to shape police use of discretion. Their
thinking and work were ahead of their time; the field of policing was
simply not ready to consider seriously the implications of this view.
Policing was still mired in the simplistic and narrow view of law
enforcement agencies as concerned primarily with felonies--the front end
of a criminal processing system.
Today, the ideas regarding the complexity of police work and the ubiquity
of discretion that are inherent in research conducted about police
functioning during the 1950s through the 1970s have permeated police and
academic thinking. Police culture and the profession have changed
dramatically as a result.
Nevertheless, discussions about substantive police work continue to lag.
We now understand that telling officers only what they cannot do, which
is so typical of police manuals and rules and regulations, has not improved
the quality of policing. We know as well that the work world of police is
too complex to tell officers exactly what they should do in every
circumstance. The only alternative left for the management of most police
work is to teach officers how to think about what they should do, do it, and
then talk about it, so that they improve their practice over time and share
their emerging values, knowledge, and skills with their colleagues and the
profession. This report proposes a model for helping police officers think
about their work while practicing it.
-------------------------------
Introduction
Police departments throughout the United States, as well as in Canada,
England, and elsewhere in Europe, have begun to reemphasize the
maintenance of public order as an essential aspect of police work. Police
activities to restore public order in New York City and its subway system,
for instance, have received extensive publicity and professional attention.
So, too, has the "broken windows" metaphor as it has been closely linked
to New York City.[1]
The New York story, as well as others, raises serious questions. To what
extent is order maintenance linked to the current decline of crime in the
United States? Regardless of its efficacy, how proper is assertive police
order maintenance? To what extent can police brutality be explained by
"turning the police loose" with order maintenance tactics? Many civil
libertarians and advocates for the homeless, for example, oppose order
maintenance because they believe it infringes on the liberties of selected
populations (the poor, minorities, the homeless, and youths) and opens the
door to abusive police practices.[2] The debates about these issues have
been vigorous and often rancorous.[3]
It is not the intent of this report to debate these issues or even dwell on
them at any length. I have addressed them elsewhere and will do so again
in the future.[4] It is important, however, to note up front that order
maintenance has the potential for abuse. Vagrancy and loitering laws, for
example, have been used to deny minorities their rights and to abuse
citizens, especially  African-Americans. But my concern here is not
limited to order maintenance activities; the concern here is how to manage
properly what Egon Bittner calls literal police work.[5]
Past and current police administrators have attempted to shape police work
through the development of command and control organizations,
recruitment, training, supervision, rules and regulations, rewards and
punishment, specialization, and routinized tactics like preventive patrol
and rapid response to calls for service. Certainly, these efforts to control
officers have powerfully influenced how American society is policed.
Rationalized police organizations deploy well-equipped officers
throughout their jurisdictions in an organized fashion that allows them to
respond to calls for service quickly. The old image of policing on which
the "Keystone Cops" were based belongs to another age. Nevertheless,
putting officers on the streets in a timely and organized fashion and getting
them to particular locations rapidly is quite different from shaping police
behavior once officers are out in the community dealing with citizens'
problems, needs, and conflicts.
Police administrations' limited ability to shape police street practice
persists despite manage- ment's preoccupation with control--an orientation
that largely grew out of efforts to minimize the kinds of corruption,
especially political corruption, that plagued late 19th and early 20th
century American policing.[6] Yet, as valid as its origins were, police
administrators' preoccupation with control, and the methods they adopted
to maintain it, have had tragic, unanticipated consequences. Most
obviously, this preoccupation has fostered a bitterly antimanagement
culture in many police departments. In this culture officers are alienated
from the citizens they serve, support a "stay out of trouble" (by doing
nothing) mentality, and, while disapproving of abuse and corruption,
nonetheless protect deviant officers in the name of occupational
solidarity.[7]
James Q. Wilson noted some of the consequences of rules and regulations
on officers' beliefs in 1968:
But there are at least two limits to the value of negative policies [things
officers may not do]. First, they leave untouched a large area of necessary
discretion and, second, they are perceived as irrelevant and unhelpful
restrictions--as rules that "tell us what we shouldn't do" and thus "give the
brass plenty of rope with which to hang us," but that "don't tell us what we
should do."[8]
These beliefs--that rules tell officers only what not to do, will be used to
"hang" officers, and fail to tell police what they should do in a positive
way--have arisen in part from police administrators' inattention to the
substantive content of day-to-day policing.
At least three explanations can be given for this inattention:
--Oversimplified, but robust, views of police work have dominated police
conventional wisdom for most of this century. The idea of police as "crime
fighters," or merely "law enforcement officers," was the cornerstone of
an ideological view of police that dismissed, ignored, or was oblivious to
actual police functioning.
--Many police chiefs who have been forthright about police work find
that legislators, mayors, and other officials often do not want to hear that
police officials, not to mention patrol officers, are involved in policy
decisions about how problems should be managed.9 This is partially
because the general public or public officials simply do not understand the
complexity of many problems.
--Politicians and media representatives often are so caught up in the
simple-minded slogans of "wars on crime," the "thin blue line," and so
forth, that they are not prepared (whether intentionally or not) to hear
about the real world of policing.
Some chiefs have demanded or implied that when confronted with
difficult or ambiguous problems, line police should "do what has to be
done and cover your ass." While often not explicit, this message is
nonetheless sent to officers because they are frequently put into complex
and troublesome situations where citizen demands for action are high and
departmental thinking about such situations is nonexistent. Although this
defensive mentality does not characterize all police leadership, over time it
has characterized enough leaders in enough departments so that line
officers have come to support or tolerate a bitter antimanagement
culture.[10]
Pushing harder and more stridently with current control mechanisms that
exert little real control over substantive work will not lead the way out of
this quandary. Such specious thinking has been in place since the 1950s
(e.g., just a little more inservice training, a slightly tighter span of control,
a few more general orders or rules, more militant internal affairs units,
improved rewards and punishments, improved or more representative
recruitment, greater militarization of recruit training). Instead, police
officials need to focus on the substantive content of police work; find and
delineate the means to conduct police work morally, legally, skillfully, and
effectively; then structure and administer departments on the basis of this
literal work and not a fictionalized view of police work. In other words, a
clear definition and description of quality policing is needed around which
appropriate organizations and administrations can be developed.
Concentrating on the substance of police work is nothing new; Herman
Goldstein, Egon Bittner, the late Frank Remington, and others have
advocated such a focus for decades. Today, the issue has acquired a new
urgency.
Although this report raises the broader issues of discretion in all police
work, it focuses primarily on the more mundane aspects of policing, such
as resolving petty conflicts, assisting and protecting children, managing
drunks and the emotionally disturbed--those activities that fill patrol
officers' occupational lives. In addition, [11] principles to be considered in
developing and implementing police guidelines are explored:
--Recognizing the complexity of police work.
--Acknowledging police use of discretion.
--Recognizing and confirming how police work is conducted.
--Advancing values.
--Putting police knowledge forward.
--Undergoing development by practicing police officers and citizens.
--Undergoing clear and broad public promulgation.
--Prescribing what officers may not do.
--Emphasizing police adherence to a process.
--Establishing accountability.
--Receiving recognition as an ongoing process.
Moreover, this report takes a special interest in selective enforcement:
helping officers articulate in professionally sound terms why they properly
make arrests in some circumstances (in the case of public urination, for
example) but not in others.
Notes
1. Wilson, James Q., and George L. Kelling, "Broken Windows: The
Police and Neighborhood Safety," The Atlantic Monthly (March 1982):
29-38; also see Kelling, George L., and Catherine M. Coles, Fixing
Broken Windows: Restoring Order and Reducing Crime in Our
Communities, New York: Free Press, 1996.
2. Generally, civil libertarian groups, such as the New York City Civil
Liberties Union, make both arguments. Former San Jose Police Chief
Joseph McNamara has been the most outspoken advocate of the points of
view claiming that assertive police order maintenance tactics open the
door to abusive police practices. McNamara argues that former New York
City Police Commissioner William Bratton has a "flippant" attitude
toward abuses such as those perpetrated by police against Abner Louima
(a Haitian immigrant) in New York City, and that James Q. Wilson and I
"opened the door" to such abuses in the original "Broken Windows"
article. (See McNamara, Joseph, "Brutality in the Name of Public Safety,"
Los Angeles Times, August 24, 1997, A1.)
3. At another level, the equation made in some quarters between police
order maintenance activities ("broken windows") and "zero tolerance" for
disorderly behavior raises issues that go beyond semantics. Without
further comment, it is an equation that I have never made, find worrisome,
and have argued against, considering the phrase "zero tolerance" not
credible and smacking of zealotry.
4. Kelling and Coles, Fixing Broken Windows, Chapters 2, 4, and 5.
5. Bittner, Egon, Aspects of Police Work, Boston: Northeastern University
Press, 1990: 4.
6. This does not imply that there were not other reasons for police
managers' concerns for control. Military organizations predisposed police
toward command and control issues, and the inherent decentralization that
goes with patrolling requires that considerable effort be put into
establishing control mechanisms.
7. For an interesting discussion of these issues, especially as a result of the
Knapp Commission in New York City, see Anechiarico, Frank, and James
B. Jacobs, The Pursuit of Absolute Integrity: How Corruption Control
Makes Government Ineffective, Chicago: University of Chicago Press,
1996.
8. Wilson, James Q., Varieties of Police Behavior, Cambridge, MA:
Harvard University Press, 1968: 279.
9. Goldstein, Herman, "Categorizing and Structuring Discretion," Policing
a Free Society, Cambridge, MA: Ballinger Publishing Company, 1977:
93-130.
10. It is not unusual for police executives to blame unions for this
antimanagement culture, but this is self-serving and deceptive because this
thinking pervades many nonunionized departments and existed long
before unions entered the police scene during the 1960s. See, for example,
Kelling, George L., and Robert Kliesmet, "Police Unions, Police Culture,
the Friday Crab Club, and Police Abuse of Force," in And Justice for All:
Understanding and Controlling Police Abuse of Force, ed. William A.
Geller and Hans Toch, Washington, DC: Police Executive Research
Forum, 1995: 187-204.
-------------------------------
A Short History of Police Accountability
Police accountability is an issue that has been with democracies since
modern police were created. Citizens should be concerned about
controlling police: they have immense authority; they are armed and
authorized to use force; and unlike the military, they are not sequestered
on bases--they are spread throughout the community.
Modern American policing had its origins in England, where, in 1829, the
questions of whether to create a police force and, if created, how to keep
this force accountable were debated by political, social, and philosophical
elites for more than a century. Everything about policing was "on the
table" in this debate--the relationship of police to political authority,
activities that would constitute the business of policing, organizational
structure and administrative processes, and the means by which police
would obtain their goals.
During the late 18th and early 19th centuries, the English stared across the
channel at the French, or continental, model of policing, which relied upon
secret police and paid informers. Likewise, the English already had
developed a model of policing Ireland and their other colonies with armed
mounted police operating in groups bivouacked to avoid contact with the
native population.[1]
The English decided neither of these models was acceptable. Early English
policing emphasized uniformed, unarmed, highly recognizable officers
who were diffused geographically throughout London and patrolled
on foot. These officers not only were granted authority from the Crown
but also had to earn the citizens' trust. Investigations conducted by
plainclothes police, at least initially, were rejected; victims pursued
criminal investigations through some form of stipendiary police.
Unobtrusive policing by public investigators risked police meddling in
political matters, and militarized policing risked further alienation of the
general population. The primary business of police was to prevent crime
through presence, persuasion, and reduced opportunities.
In the United States, cities adopted the English model of policing.
Although not originally outfitted in uniforms--this was deemed European
elitism--American police were similarly diffused throughout cities, like
their English counterparts, to prevent crime. For American police, the
issue of who would control the police--urban political bosses or
descendants of the original Dutch and English settlers--was the dominant
public concern. This struggle to control police forces was to shape
American police in remarkable ways.
During the first stage of evolutionary development (roughly from the
1850s to the 1920s), police were largely under the control of urban
political machines; during the second stage (roughly the 1930s to the
1970s), police, with the support of the progressives, evolved into virtually
autonomous urban agencies. Herman Goldstein has described police as
evolving into the least accountable branch of urban government during
this era.[2]
To achieve this shift--from politically dominated and controlled to
virtually autonomous forces--practically every aspect of American
policing was reformed during the early decades of the 20th century.
Leading police thinkers (like O.W. Wilson, Leonard Fuld, and Bruce
Smith) were overwhelmingly preoccupied with issues of control--that is,
both wresting control of police at all levels from political influences and
ensuring that only "professional" police influence police. Bruce Smith, for
example, wrote in 1929: "Without exceptions, all proposals for
improvement of organization and control have necessarily been aimed at
the weakening or the elimination of political influences."[3]
In the name of eliminating corrupt political influences from policing, these
men attempted to change the nature of the business from crime prevention
to reactive law enforcement. They restructured police organizations,
revised administrative processes, developed new tactics, and redefined the
relationship between police and citizens--each, more or less successfully--
all with an eye toward gaining administrative control of police, whether
field commanders, supervisors, or patrol officers.[4]
By the 1950s, theorists wrote about the conduct of police work--services
line officers perform in the course of their daily work--as being
semiautomatic (i.e., police responses to incidents could be, or should be,
so controlled as to be analogous to typing, piano playing, or rote
adherence to a script). O.W. Wilson wrote in 1956, for example:
Administration has been defined as the art of getting things done. Police
objectives are achieved by policemen at the level of performance where
the patrolman or detective deals face-to-face with the public--the
complainants, suspects, and offenders--and the success of the department
is judged by the performance of these officers.
Decisions that are advantageous to the department are most likely to be
made by policemen who have been selected in a manner to assure superior
ability, who understand the police objectives and are sympathetic to them,
who are loyal to their department and capable of operating effectively,
efficiently, and semi-automatically (i.e., with a minimum of conscious
self-direction, as in performance by a skilled typist or pianist), and who
have high morale (i.e., the condition described by military leaders as the
right heart). (Emphasis added.)[5]
Police work, in this view, as Egon Bittner once said, could be conducted
by persons who have "the 'manly virtues' of honesty, loyalty,
aggressiveness, and visceral courage."[6] The idea of officers thinking
before they acted was to be discouraged. They were to follow rules
loyally.
The perception of police work as simple and under administrative control
was shattered, of course, by research conducted in the 1950s by the
American Bar Foundation, which showed that police work is complex,
that police use enormous discretion, that discretion is at the core of police
functioning, and that police use criminal law to sort out myriad problems.
The research suggested that the control mechanisms that pervaded police
organizations--especially rules and regulations, oversight, and militaristic
structure and training--were incompatible with the problems that confront
police officers daily and the realities of how police services are delivered.
Aside from several who were scholars, few police administrators realized
how "out of touch" existing practices were with day-to-day police realities.
Paradoxically, a policing strategy that was overwhelmingly preoccupied
with control, in the final analysis, failed to meet its most essential criteria.
True, the strategy largely eliminated corrupt political influences in police
departments. However, it left officers mostly to their own devices in
conducting the bulk of their work.
This state of affairs has not gone unnoticed in either the legal or research
community. The U.S. Supreme Court, for example, grew impatient with
the unwillingness or inability of police executives to control criminal
investigations--it was widely acknowledged since the 1930s Wickersham
Commission that police procedure embraced the practice of torture--and
through a series of decisions during the 1960s (the exclusionary rule, the
requirement that offenders understand their right to an attorney, and so
forth), established guidelines that shaped the future conduct of criminal
investigations.[7] Egon Bittner, based on his own research of police
handling of drunkenness and mental illness, has written both eloquently
and indignantly about the mismatch between "official" and real police
work:
The official definition of the police mandate is that of a law enforcement
agency. . . . The internal organization and division of labor within
departments reflect categories of crime control. Recognition for
meritorious performance is given for feats of valor and ingenuity in crime
fighting. But the day-to-day work of most officers has very little to do
with all of this. These officers are engaged in what is now commonly
called peacekeeping and order maintenance, activities in which arrests are
extremely rare. Those arrests that do occur are for the most part
peacekeeping expedients rather than measures of law enforcement of the
sort employed against thieves, rapists, or perpetrators of other major
crimes.
For the rich variety of services of every kind, involving all sorts of
emergencies, abatements of nuisances, dispute settlements, and an almost
infinite range of repairs on the flow of life in modern society, the police
neither receive nor claim credit. Nor is there any recognition of the fact
that many of these human and social problems are quite complex, serious,
and important, and that dealing with them requires skill, prudence,
judgment, and knowledge.[8]
Notes
1. Tobias, John J., "The British Colonial Police: An Alternative Police
Style," in Pioneers in Policing, ed. Philip John Stead, Montclair, NJ:
Patterson Smith, 1977: 241-261.
2. Goldstein, Herman, "Categorizing and Structuring Discretion," Policing
a Free Society, Cambridge, MA: Ballinger Publishing Company, 1977:
93-130.
3. Smith, Bruce, "Municipal Police Administration," The Annals 146
(November 1929): 27.
4. Kelling, George L., and Mark H. Moore, "The Evolving Strategy of
Policing," in Perspectives on Policing, No. 4, Cambridge, MA: U.S.
Department of Justice and Program in Criminal Justice Policy and
Management, John F. Kennedy School of Government, Harvard
University, November 1988.
5. Wilson, O.W., "Basic Police Policies," The Police Chief (November
1956): 28-29.
6. Bittner, Egon, Aspects of Police Work, Boston: Northeastern University
Press, 1990: 6-7.
7. The Wickersham Commission was the first national survey of criminal
justice and police practices.
8. Bittner, Aspects of Police Work.
-------------------------------
The Urgency of Influencing Police Work
Increasingly, police are under renewed and constant pressure from
neighborhood groups and city halls across the country--not to mention
State legislatures and the U.S. Congress--to "do something now" about
eliminating the excesses of the drug market, getting guns off the street,
and regaining control over public places.[1] Attempting to meet such
demands has inevitable strategic consequences for police departments and
local government. The main consequence is that police strategy shifts from
a reactive and inherently passive model to a preventive interventionist
model that reopens policy issues about police handling of the homeless,
drunks, drug dealers and users, the emotionally disturbed, and minor
offenders that many believed had been addressed once and for all during
the period following the 1960s. This strategic change takes police to the
edge, or even over the edge, of constitutional law--at least as it has been
interpreted for the past 30 years.
Preventive Interventionist Policing
When a shooting occurs in New Haven, Connecticut, the Department of
Police Services immediately sends a team of Yale Child Study Center
clinicians and police officers to help children and families cope with the
social and psychological consequences of violence.[2] (See "How New
Haven Developed Guidelines.") Likewise, when Community Patrol
Officer Jack Fee, who is assigned to the Academy Homes in Boston,
Massachusetts, discovers a hitherto unenforced housing law that allows
the court to sentence a gang member with a history of violence, but no
convictions, to a 1-year jail sentence for trespassing, this is preventive
interventionist policing.
Although it might not appear so, preventive policing that interrupts cycles
of violence through problem solving is much more invasive of community
life than the reform--or 911--model that has dominated policing in the
United States since the 1950s. This inherent assertiveness can lead to
serious misunderstandings of what constitutes community or
problem-oriented policing.
For many people, thanks in part to how it has been presented by many
police leaders, community policing is viewed as "soft" policing
comparable to community relations or, worse yet, social work. When
asked to describe his efforts in Academy Homes, Officer Jack Fee--known
throughout the Boston Police Department as a "tough" cop--shrugged and
said, half apologetically, "I suppose I'm doing social work." This
perspective, that preventive policing is soft policing, has created numerous
obstacles for departments attempting to get police rank and file to embrace
community policing.
"Crime fighting" is inherently passive and reactive policing: patrol in a
powerful car, receive a 911 call, turn on flashing lights and siren, speed to
the incident, tend to it as quickly as possible, and return to service. For the
most part, this method of policing is in response to citizen-initiated calls to
deal with incidents.[3]
Community policing is inherently proactive: scan for problems; diagnose
them; try to prevent them from occurring again; if they recur, try to limit
the damage and restore the victim/family/community's functioning.[4]
This is implicit in New Haven's approach--tend to the incident, of course,
but follow up with action that limits the damage and helps children and
families restore themselves to adequate functioning. Even police handling
of murder should go beyond criminal investigation.
This failure to understand the inherent asser- tiveness of community or
problem-oriented policing, and equating it with soft policing, has greater
consequences than just alienating line police officers. The equation of
"community" and "soft" leads to public confusion when tough police
action is required to deal with severe crime or disorder problems. New
York City provides the best current example.
Critics have attacked New York Police Department (NYPD) community
policing efforts since former Commissioner William Bratton implemented
assertive and enterprising (do not read combative here) policing to deal
with disorder and crime.[5] Indeed, a major Los Angeles Times article in
1995 argued that the NYPD was remilitarizing and transforming itself into
what the Los Angeles Police Department (LAPD) was, while the LAPD
was attempting to demilitarize itself and become the "officer-friendlies
that the NYPD once symbolized."[6] The ease with which the article made
this argument points to the danger of using military metaphors, as was
done by NYPD officials, to describe policing.
The Los Angeles Times reporter wrote: "In Los Angeles, officers are
trying to shed the very image that the NYPD covets [military]. Cops
are getting out of cars, walking beats, putting on shorts and riding
bicycles, all to be closer to the public."[7] The reporter, who chose to
focus on the military metaphors used to describe the NYPD anticrime
problem-solving methods, ignored the fact that the NYPD cops were in
reality doing all of these things--probably at a rate faster than any other
police department in the country.
The reporter's view of community policing as soft is evident throughout
the story. For example: "Los Angeles police are being encouraged to
spend more time talking to residents and merchants about what troubles
their lives, to emphasize community contacts over arrests, to consider the
underlying community pressures that give rise to crime rather than
focusing exclusively on criminal behavior itself."[8] Most advocates of
community policing could say, or have said, similar words. It does not
follow, however, that if police officers talk to citizens and come to
understand "what troubles their lives" this is the end of their responsibility;
they are still police.
This debate about New York City, if anything, has become even more
heated in recent years. Mayor Rudolph Giuliani and current Police
Commissioner Howard Safir are favorite targets of those who view
assertive policing as "turning the police loose." To be sure, incidents like
Louima and Diallo warrant public concern; however, the idea that such
events, as tragic as they were, are inevitable consequences of restoring
order ignores both the benefits of the current police strategy and the reality
that such incidents are not limited to recent history.[9] Outrageous
brutality and tragic accidents occurred during the post-Knapp era, when
"staying out of trouble" became the NYPD's dominant ethos as well.[10]
The fact that police add options to their repertoire of methods, try to limit
damage, and restore functioning does not mean that conventional assertive
law enforcement is disallowed as a legitimate police tactic. For example,
understanding the dynamics of New York City's "squeegee
men" unwanted car window washers who intimidate drivers into giving
them money--and talking to them did nothing to deter their behavior.
Careful and judicious use of law enforcement did: policing that included
citations, warrant service, arrest, and jailing ultimately were required to
solve the problem.[11]
The growing practice of police using civil law to achieve criminal law
objectives shows just how enterprising community and problem-solving
policing can be. These tactical innovations, civil remedies such as Boston
Police Department Officer Jack Fee applied, include efforts to deal with
domestic violence, drug trafficking, racial harassment, disorderly
behavior, and weapons possession. Civil remedies include injunctions,
restitution, forfeiture, and civil fines that can be used either alone or in
tandem with criminal law, as in the case of use of property forfeitures to
deal with drug dealing. Civil initiatives not only add to the police
inventory of authority to deal with problems but also, as Mary M. Cheh
has noted: "[C]ivil remedies offer speedy solutions that are unencumbered
by the rigorous constitutional protections associated with criminal trials,
such as proof beyond a reasonable doubt, trial by jury, and appointment of
counsel."[12] This is hardly soft policing. In fact, civil initiatives raise
important strategic, legal, and constitutional issues about use of police
authority.[13]
The misrepresentation of community policing as soft plays into the hands
of those who are opposed to change in policing methods. Those who want
to get back to "tough" law enforcement--police riding around in cars,
responding to 911 calls, and occasionally conducting order maintenance
"sweeps" (another terrible metaphor to describe what police do)--trivialize
what has happened in New York City. Moreover, when successful
assertive policing is misconstrued as combative or militarized policing, it
becomes fodder for those who want to "turn the police loose."
Citizens, politicians, and vested interest groups have always pressured
police to cut legal and constitutional corners--that is, "to do what has to be
done." Whether the corner cutting is illegal searches, manhandling
suspects, or "testilying," the consequence is always the same: a police
culture that is alienated from democratic values and the public and that
tolerates police abuse of citizens and police corruption.[14]
Reopened Issues for Policing
During the 1960s, policing in the United States was profoundly affected
by converging social, political, and professional and occupational forces.
These forces included the triumph of progressivism as a model for local
government and the installation of preventive patrol and rapid response as
conceived by O.W. Wilson and other police reformers as the model of
effective, efficient, and honest policing. At the same time, the rights
revolution had a major impact on society's response to mental illness,
drunkenness, vagrancy, and disorderly behavior. These social forces also
created the "criminal justice system" with the police as its front end and a
criminal justice educational establishment that promulgated the ideas
inherent in the "system."[15]
The 1960s shaped a surprisingly congruent police strategy that, while not
adhered to universally, nonetheless constituted the official strategy of
progressive midcentury American police. Policing became synonymous
with law enforcement in which police should be out--or should get out--of
the business of dealing with emotionally disturbed individuals, youths, and
the problems of drunkenness, disorderly behavior, and minor offenses.
In this respect, an unwitting alliance was struck between police and civil
libertarians. For many civil libertarians, the police always implicitly
threaten the use of authoritative power. In this libertarian view, juvenile
crime, mental illness, drunkenness, and disorder should be the sole
province of social workers and advocates. If anybody should intervene, it
certainly should not be the police. For police, relief from these
responsibilities seemingly bailed them out of inherently ambiguous and
sticky areas that had gotten them into trouble in the past. Police recognized
the social control opportunities that policing disorder and drunkenness
provided, yet they were inherently "messy" businesses both literally and
metaphorically: literally because drunks are often unkempt, dirty, and
unpleasant to manage; metaphorically because considerable societal
ambiguity exists about how to deal with such problems.
Narrowing the focus to serious crime simplified life considerably for
police. "Crime fighting" was easy to portray to the public and provided an
occupational vision around which officers could rally. The demand for
order that grew in cities during the 1980s and early 1990s, however, thrust
police back into the middle of the social, legal, moral, and constitutional
issues they had tried to avoid. The publication of "Broken Windows" first
popularized the link between disorder and fear and hypothesized the links
among disorder, fear, crime, and urban decay that gave voice and
legitimacy to citizen demands that order be restored.[16] Later work by
Wesley Skogan confirmed these linkages and provided even greater
momentum to the move to restore order.[17]
By the early and mid-1990s, highly publicized programs to restore order
by New York City's Transit Police Department in that city's subway
system and the NYPD in public spaces generally, in San Francisco's
"Operation Matrix," and in other cities once again put the police in the
middle of the growing public debate about how to handle disorder.[18]
Policy and strategy issues once thought resolved again became issues for
police. What was the proper balance between individual rights and
community interests?
Questions arose both within and outside police ranks about the proper
police role in handling juveniles, drunks, the homeless, and disorderly
citizens:
--Is "zero tolerance" an apt phrase to describe police order maintenance?
What does it mean?
--Do police have a role to play in crime prevention by working with
youths as other than law enforcement officers?
--Given the lack of resources, what is the proper police role in dealing
with drunks and the emotionally disturbed?
--What are the bases of authority for police to handle disorderly persons?
--Are new sources of authority for dealing with problems available, and
how are they best developed and deployed?
--What new forms of training are required to prepare police for working
with troubled youths and adults?
--What do community collaboration, cooperation, and accountability
really mean in an operational sense?
--How are police kept from protecting narrow, parochial interests--such as
keeping "strangers" out of neighborhoods and communities?
--How do police refrain from doing what citizens should do for
themselves or from usurping the roles of private or other governmental
agencies?
These issues, many of which were once regard-ed as resolved in many
police circles, demand careful and thoughtful consideration. The
reinvention of policing profoundly challenges contemporary police
leaders, policymakers, scholars, and academics to consider new methods
of active political and community control of police discretion and the
development of new police guidelines.[19]
Police, Law, and the Constitution
A lieutenant in a moderately large police department recently described
the activities of a special antiviolence unit he headed that concentrated on
confiscating guns from youths. The lieutenant was bright, capable, and
intimately familiar with Lawrence Sherman's research on gun confiscation
in Kansas City and the New York City efforts to reduce gun carrying.[20]
In the middle of the conversation about gun confiscation, the lieutenant
acknowledged somewhat ruefully, "We're really pushing the Fourth
Amendment here." I asked him, "What special policy guidelines did the
department provide to officers to ensure that they acted appropriately, at
least by departmental standards?" My question was prompted by my work
in New York City with the Transit (subway), Metro North (Grand Central
Terminal), and Long Island Railroad (Penn Station) police departments. I
had helped the departments develop policies and tactics to deal with
disorderly behavior that had taken them to the edge of the law as well.
Indeed, Robert Kiley, chairman of the Metropolitan Transportation
Authority, and I understood very well that we would be going to court as
soon as those policies and tactics were implemented.[21] From the
beginning of our activities, we prepared for the legal, constitutional, and
moral battles that would be forthcoming when we challenged existing
practices and traditions.
The lieutenant's response, however, confirmed that although the
department's gun strategy deliberately brought it to the verge of illegality,
neither the department nor the unit had developed, or had considered
developing, an explicit policy statement about its antigun tactics that
would communicate its policies to the public and guide and control either
the unit's--or its officers'--field practices. In all likelihood, the department's
rules and regulations specified that officers would always operate legally
and contained the routine homage to the Fourth Amendment and the law
regarding search and seizure. Moreover, it is impossible to write a policy
statement that covers every issue that officers would confront, and it
would be unwise to try. The former concern, the impossibility of writing
an effective policy statement, reflects a widely shared belief in
policing--and certainly not a  capricious belief--that practical
circumstances are so complicated that every exigency cannot be covered in
a policy statement. Regarding the latter concern--that it would be unwise
to try--this reflects what is often viewed as true in policing: some things
the police do that take them to the edge of the law have the potential to be
so controversial that they are best left unmentioned and up to the
discretion of officers.
My concern about the lieutenant's statement was also driven by my
observations of patrol practices during the early 1980s in four police
departments that were known to confiscate large numbers of guns. The
great majority of guns were confiscated through "traffic enforcement" at
all four sites. In the large midwestern city where I spent the most time
observing, police (routinely in two-person patrol cars) would stop cars of
"interest," almost invariably legitimately, on the basis of some traffic
violation or faulty equipment. A car of interest always contained one or
more male youths. All of the youths were African-American, but nearly
everyone in this area of the city was African-American except for some
police.
In conversations with officers, I learned that they did not stop cars
carrying women because a woman could not be searched unless a female
police officer was present. More often than not, no female officer was on
site, meaning one had to be called in from elsewhere in the city--a process
that consumed too much time. Likewise, the officers did not stop cars
driven by males over the age of 30 because "even if they were carrying,
they probably wouldn't hurt anyone except in self-defense," according to
one officer.
Once a car was stopped, typically, one officer approached the vehicle and
asked the driver to step out. The other officer stood either in back of the
car or on the passenger side. As the driver stepped out of the car, the
officer asked for a driver's license and for the man to step to the rear of the
car to be sure that they were out of traffic. The officer then indicated the
basis for the stop--generally something like "you were over the center
line" or "your left tail light is out." After some exchange, the officer would
ask: "You wouldn't mind if my partner checked your trunk, would you?"
Again, almost invariably, the driver acquiesced. And so it progressed--the
next request was to check inside the car. (If passengers were in the car,
they were asked to get out and join the officer and driver at the back of the
car.) Depending on the circumstances, the driver and passengers would be
"patted down."
What I observed, of course, was a street game, the rules of which almost
everyone understood. The traffic offense was legitimate and worthy of a
ticket. Each party was negotiating: the citizen to get out of a ticket and the
officer to search the car. The request to search the trunk was the opening
gambit in the negotiation, and if the driver refused, the officer, depending
upon his or her assessment of suspicious behavior, personal safety, or
some other justification, could have insisted on a search. A refusal,
however, probably clinched the ticket. It cannot be overemphasized,
however, how politely and respectfully officers in this city managed these
interactions. It was clear from their behavior, as well as from their
communications with me, that the officers wanted to avoid conflict.
In observing such transactions, one could not help but be impressed by the
skill, courtesy, and reasonableness of most of the officers. They were
dealing with a serious problem, gun carrying, and behaved in an
exemplary fashion. Nevertheless, it is unclear just how voluntary most of
the searches I had observed really were. These were really pretext stops. In
essence, the police established a quid pro quo: you let me search your car,
and I let you out of a ticket. Moreover, I observed officers who interpreted
a refusal to allow their search as a threat to their safety that justified a
search. While such transactions or subsequent interpretations may not have
occurred in Indianapolis or Kansas City during the research there, I am
reasonably certain that the lieutenant mentioned above was referring to
practices not dissimilar to those I had observed in the early 1980s when he
discussed "pushing the Fourth Amendment."[22]
The point here is not to judge whether the offi-cers I observed were
justified in what they were doing--clearly, their performance was in line
with common practice in the department. My concerns, unrelated as they
are to squeamishness about pushing the law, have to do with the failure of
police departments to develop clear policy statements regarding some of
the serious and complex issues they encounter. (See "Democracy,
Policing, and Discretion.")
Defining quality police work, recognizing it, and managing it are internal
police matters and should be pursued to improve policing.[23] That good
policymaking reduces litigation is an added benefit of competence.
The current demands placed on police and the strategic consequences of
responding to them in new and innovative ways underscore the inherent
complexity of good police work and the pervasive role discretion plays in
policing. The issues described above--the inherent assertiveness of the new
models of policing, the individual rights versus community interests issue,
and the legal and constitutional issues that are raised by new police
tactics--provide further evidence of just how complex policing is.
While the complexity of police work and the discretion required in
policing may be widely acknowledged, the impact of this awareness on
police practice and administration is not clearly distinguishable. Arguably,
attempts to control and shape police behavior are still largely mired in the
organizational and control apparatus that characterized the far simpler,
mid-20th century view of policing: command and control, quasi-military
training, factorylike models of supervision, and extensive rules and
regulations. These control mechanisms, which are irrelevant to street
policing, are based on the Taylor model that has dominated organizational
thinking for most of the 20th century.[24]
During my work with the New York City Transit Police Department, in
subsequent work with other police departments, and in reviews of
departmental rules and regulations, general orders, and other policy
materials, I was struck by the departments' virtual silence about actual
police work. A review of numerous departmental written materials showed
that the majority dealt with internal administrative issues. A significantly
smaller number addressed "hot" issues: use of force, hot pursuit, lineup,
and arrest procedures.[25]
Frank Vandall, Professor of Law at Emory University, made a similar
observation about training materials in 1976: "An examination of
contemporary police training materials reveals that they fail to deal with
the concept of discretion in law enforcement. They use such vague phrases
as 'proper action,' 'necessary action,' and 'cool thinking' to gloss over the
common discretionary problems involved in
dealing with discretionary situations."[26]
To give another example, I was asked recently to review an eastern State's
recruit training materials considered by many to represent state-of-the-art
training for community policing. One of the first sections I checked was
"Traffic Stops." After an introduction that included pieties stating that the
purpose of traffic stops was not to give tickets but, rather, to educate
citizens about traffic safety, the section outlined, in great detail, how to
make a traffic stop. Properly, the section communicated considerable
concern about officer safety. (Indeed, it dwelled on the subject to such an
extent that I could not help but infer that the purpose of traffic stops was to
keep officers safe.) But that is all there was. Not one word--and I checked
other sections that dealt with similar issues--was given to advise students
about how they should use their discretion to give or not to give tickets.
Yet, the only discretionary police acts that the majority of citizens will
experience or observe will involve traffic violations.
My own personal experience with a traffic stop is instructive here. On the
New Hampshire Expressway, I was stopped going 72 miles per hour when
the limit was still 55. When the officer approached me, he made the
typical request for my license and registration but asked me as well: "Was
there any reason why you were going 72 miles per hour?" It was a
question. There was nothing sarcastic, confrontational, or entrapping about
it. I said: "No, I was just smelling the barn and eager to get home. I have
no excuse." He replied: "I just can't give you 17 miles over the limit--7,
sure. Maybe 10. But not 17." I understood and told him so. He wrote the
ticket for 64, which was 9 over the limit. I didn't like getting the ticket, but
I had no sense of injustice or anger. His opening question, which I heard as
a sincere request for information about whether I had some justification
for speeding, acknowledged his discretionary authority and acknowledged,
as well, that I might have had a good reason, and he was prepared to
consider it. The respect with which the officer treated me engendered my
respect for him.
The gaps in police training and guideline development that are so typical,
however, retard the development of police knowledge, impede the
development of genuine professionalism, diminish the quality of police
services, invite the use of personal whim as the basis for discretionary
judgments, and unnecessarily expose police officers and departments to
liability suits. Such circumstances are not unique to American policing.
Joanna Shapland and Jon Vagg identify similar circumstances in England:
[S]enior officers did not regard area beat work as a specialism within
uniformed work or even as a particularly skilled task, in the way that they
saw IRV [immediate response vehicles] and public order work. Special
training, meetings on good practice, and manuals of relevant skills were
conspicuously absent--in contrast to the position in many other areas of
police work. ABOs [area beat officers] were thrown on their own
resources and were often supervised by sergeants who had joined the force
at the time when patrols in panda cars [small cars used by patrol officers]
were being introduced. These sergeants had now to learn what area beat
policing was about at the same time as their constables were finding out
how to do it. The result was ironic. The police themselves had precious
little to draw on as a model other than television images of Dixon of Dock
Green [a previously popular English television show about police].[27]
The issue here is the state of the art of guidelines, policies, rules and
regulations, and training materials and not necessarily how police actually
work. I continue to walk, ride in patrol cars, and ride bicycles with
officers. The skill, sensitivity, and capability of many police officers--such
as I have described above and have experienced throughout my career in
police research--is striking. (I have seen terrible policing as well.)
Two points stand out. First, police are almost uniformly unable to
articulate what they do, why they do it, and how they do it. Most, when
queried, resort to the jargon of the field: "common sense," "proper action,"
and so forth. Second, virtually all of their order maintenance,
peacekeeping, and conflict resolution activities are unofficial. Except for
personal notes officers take down, no records are kept of these activities. It
is only a slight exaggeration to say that the only way that the activities can
become official is if someone files a complaint against the officer.[28]
There are signs of hope. In some cities, police managers go beyond paying
mere lip service to complexity and discretion and find alternative models
of training, supervision, and control that reflect the realities of how police
work is carried out. The San Diego Police Department's policy statement
on undocumented persons, for example, provides sophisticated guidelines
about a very complex issue confronting police departments in cities near
national borders--the extent to which local police should look for
violations of national immigration laws. (See Appendix B, "San Diego
Police Department Policy Statement.") This problem could easily have
been left to officer "discretion," that is, to ignore it administratively and let
officers "work it out" in the field. Instead, the department thought through
its values, mission, and functions and elaborated a policy that put public
safety and harmony above aggressive attempts to ferret out undocumented
aliens.
What Is the Future of Guidelines Development?
The shifts in policing now under way cannot occur unless police
departments are reorganized to manage literal police work. This is why
many community policing programs often fail to meet their stated goals.
For most police departments, organizational and administrative "business
as usual" is still the rule. Most police departments have developed few
materials about the day-to-day problems that confront and, at times,
plague patrol officers.
Moreover, a body of police management literature is being developed that
reflects more realistically the way police work is carried out.[29] Issues
such as the role accountability of midlevel managers, supervision in a
highly decentralized organization, and leadership have been brought to the
center of police attention. One such experiment that has received
enormous publicity is the interactive control mechanism called
COMPSTAT that William Bratton borrowed from the private sector and
adapted for NYPD midlevel managers (precinct commanders).[30]
The method, first described by Robert Simon of the Harvard Business
School, combines management, supervisory, and peer control into a highly
visible process that rivets the midlevel manager's attention on precinct
problems.[31] As exciting and promising as this innovation is, however, it
is still unclear whether such methods will be adapted to line police or how
departments can develop guidelines to shape line officers' discretion--the
most widespread and invisible discretion in criminal justice.
Despite the complexity of police work, generic sets of guidelines about the
substantive problems with which police deal--for example, disorderly
behavior in a downtown area--can be developed. Such guidelines can serve
as the basis for police training, supervision, and practice; identify
competent police work and provide the basis for officer accountability;
help to articulate a genuinely professional police point of view; and, yes,
even be used to defend police actions in litigation.
Notes
1. For a discussion of "doing something, now," see Bittner, Egon, The
Functions of Police in Modern Society, Cambridge, MA: Oelgeschlager,
Gunn and Hain, 1980.
2. Marans, Steven, and Jean Adnopoz, The Police-Mental Health
Partnership: A Community-Based Response to Urban Violence, New
Haven, CT: Yale University Press, 1995.
3. For the best summary of this research, see Mary Ann Wycoff, "The
Role of Municipal Police Research as a Prelude for Changing It,"
Mimeograph, Washington, DC: Police Foundation, 1982.
4. Goldstein, Herman, Problem-Oriented Policing, Philadelphia, PA:
Temple University Press, 1990.
5. Many have questioned whether Bratton was really an advocate of
community policing. See Kelling, George L., and Catherine M. Coles,
Fixing Broken Windows: Restoring Order and Reducing Crime in Our
Communities, New York: Free Press, 1996. Also see Bratton, William W.,
and Peter Knobler, Turnaround: How America's Top Cop Reversed the
Crime Epidemic, New York: Random House, 1998.
6. Newton, Jim, "Police: New York Police Claim Their New Militarism
Has Led to the City's Startling Drop in Crime," Los Angeles Times,
December 24, 1995, A1.
7. Ibid.
8. Ibid.
9. The Louima incident involved the torture of a Haitian immigrant by
New York City police officers--a truly ugly episode. In the Diallo
incident, 4 officers fired 41 shots and killed an unarmed African man.
10. The Knapp Commission was a 1972 investigation of corruption in the
New York City Police Department that many believe led to a departmental
preoccupation with police corruption and abuse.
11. Kelling and Coles, Fixing Broken Windows, 141-143.
12. Cheh, Mary M., "Constitutional Limits on Using Civil Remedies to
Achieve Criminal Law Objectives: Understanding and Transcending the
Criminal-Civil Law Distinction," The Hastings Law Journal 42 (July
1991): 1325-1413.
13. For a discussion of civil initiatives, see Cheh, "Constitutional Limits."
14. "Testilying" refers to systematic police lying during court testimony.
15. See Kelling and Coles, Fixing Broken Windows, especially Chapter 3.
16. Wilson, James Q., and George L. Kelling, "Broken Windows: The
Police and Neighborhood Safety," The Atlantic Monthly (March 1982):
29-38.
17. Skogan, Wesley, Disorder and Decline: Crime and the Spiral of Decay
in American Neighborhoods, New York: The Free Press, 1990.
18. "Operation Matrix" was a joint police/social work effort to reduce
disorder and deal with homelessness, especially in parks.
19. Livingston, Debra, "Police Discretion and the Quality of Life in Public
Places: Courts, Communities, and the New Policing," Columbia Law
Review 97 (3) (April 1997): 551-672.
20. Sherman, Lawrence W., James W. Shaw, and Dennis P. Rogan, The
Kansas City Gun Experiment, Research in Brief, Washington, DC: U.S.
Department of Justice, National Institute of Justice, January 1995, NCJ
150855.
21. For a detailed discussion of the legal issues and how they were
resolved, see Kelling and Coles, Fixing Broken Windows, 38-69.
22. For a brief description of the gun confiscation program in Kansas City
and an anecdote from Indianapolis, see Sherman, Shaw, and Rogan, The
Kansas City Gun Experiment, 5-6.
23. Goldstein, Herman, "Confronting the Complexity of Police
Functioning," in Discretion in Criminal Justice: The Tension Between
Individualization and Uniformity, ed. Lloyd E. Ohlin and Frank J.
Remington, Albany, NY: State University of New York Press, 1993: 53;
and Goldstein, Herman, "Police Policy Formulation: A Proposal for
Improving Police Performance," Michigan Law Review 65 (April 1967):
1123.
24. Kelling, George L., and William J. Bratton, "Implementing
Community Policing: The Administrative Problem," in Perspectives on
Policing, No. 17, Cambridge, MA: U.S. Department of Justice and
Program in Criminal Justice Policy and Management, John F. Kennedy
School of Government, Harvard University, July 1993.
25. Kelling and Coles, Fixing Broken Windows, 182-185.
26. Vandall, Frank, Police Training for Tough Calls: Discretionary
Situations (limited edition), Atlanta, GA: Emory University, Center for
Research in Social Change, 1976.
27. Shapland, Joanna, and Jon Vagg, Policing By the Public, London:
Routledge, 1988.
28. Kelling, George L., "How to Run a Police Department," City Journal 5
(4) (Autumn 1995): 35-44.
29. See, for example, Sparrow, Malcolm K., Mark H. Moore, and David
M. Kennedy, Beyond 911: A New Era for Policing, New York: Basic
Books, 1990.
30. Bratton and Knobler, Turnaround.
31. Simon, Robert, The Mental Health Practi-tioner and the Law: A
Comprehensive Handbook, ed. Lawrence E. Lifson and Robert I. Simon,
Cambridge, MA: Harvard University Press, 1998.
-------------------------------
The Discovery of Discretion and Its Meaning
In 1965, Frank Remington wrote, "The police should play a major role in
fashioning and implementing a proper law enforcement policy for their
community."[1] Remington drew an analogy between the Federal Trade
Commission, an administrative agency with the responsibility to develop
enforcement policy, and local police departments, which have a similar
responsibility. This was a radical departure from past thinking about
policing. Legislatures and city councils made laws, and the police
responsibility was to enforce them impartially. A generation of police had
been reared on the idea that law enforcement was what they did:
individuals broke the law, the police arrested them. The police job was just
that simple.
Implicit in Remington's proposal was an alternative view of the police as
a de facto administrative agency of city government whose work was
characterized by repeated use of discretionary judgment. This discretion
existed not only at executive levels but also at every level of the police
organization, especially with the practicing police officer. Remington's
views were based on research he directed during the late 1950s,
specifically the American Bar Foundation (ABF) Survey of Criminal
Justice.
Until the 1950s and 1960s, surveys of police and criminal justice agencies
relied on official reports and statistics.[2] Generally conducted on a city
level by local elites aided by professional consultants like Bruce Smith,
police surveys studied the extent to which local police departments
followed the reform model of policing, especially their adherence to its
organizational and administrative principles. What police did--their literal
work--remained out of public view.
Survey of Criminal Justice Agencies
In 1953, Supreme Court Justice Robert H. Jackson, believing criminal
justice to be in a state of crisis, called for a major national study of
criminal justice agencies by the American Bar Association (ABA). At first
administered by the ABA and funded by the Ford Foundation, the survey
also became the first project of the ABF, the ABA's newly created
research arm. As first conceived, the study was designed to apply
methodologies used in previous local surveys: official data would be
analyzed to learn the extent to which agencies adhered to prescribed
standards.
Not atypically, expert consultants devised the original project and secured
its funding. O.W. Wilson, the dominant police theorist of the 20th century,
for example, compiled the checklist that was to be the foundation for the
study. Other experts helped devise similar plans for examining other
criminal justice agencies.[3] Herman Goldstein, who was a staff member
of the original survey, described the early plans:
If the ABF survey had followed its original plan for that portion of its
inquiry relating to the police, it would not have added much to the sparse
knowledge then available. Like the police field itself, the plan was heavily
influenced by the prevailing perception of what was important in
policing--the technical and administrative aspects of running a police
agency. The detailed agenda for inquiry identified 15 different categories
of information that were to be systematically acquired, with all but two
categories relating to the organization, administration, staffing, and
equipping of a police agency. The product would have been an inventory
of the degree to which the police agencies conformed with the
then-prevalent standards for managing a police agency.[4]
Under the leadership of Remington and Lloyd Ohlin (Emeritus
Touroff-Glueck Professor of Criminal Justice at Harvard Law School),
however, the survey went in a different direction. In some respects, the
new direction was an outgrowth of a serendipitous mix of the University
of Wisconsin Law School's "law in action" tradition as embodied by
Remington and the Chicago School of Sociology's tradition of field
observation as represented by Ohlin, a Ph.D. from the University of
Chicago.
Ohlin notes that Remington, the first staff director of the study, "decided
from the outset that the ABF survey would be different from earlier
studies, much less concerned with official summary statistics and more
concerned with the analysis of the criminal justice system in daily
operation."[5] In other words, the survey would study law as it operated
rather than law as it was found in the books and, as a consequence, would
rely heavily on observational data of low-level decisionmaking. Field staff
filled out the checklists devised by the experts to be true to the original
proposal, but only for that purpose.[6] Remington and Ohlin's decision to
reshape the survey transformed it into one of the most important
social/legal research studies of the 20th century.
Initially, three sites were selected for the study: Kansas, Michigan, and
Wisconsin. Additional sites were to be added later. After the survey began
in 1956, however, researchers, confronted by the enormity of the study and
the data set, decided to limit their study to the original three sites.
Study Findings
The study focused on the line personnel in criminal justice
agencies--police, prosecutors, judges, and corrections officers--conducting
their routine work. Conventional thinking was turned on its head:
--Discretion was found to be used at all levels of criminal justice
organizations. The idea that police, for example, made arrest decisions
simply on the basis of whether or not a law had been violated--as a
generation of police leaders had led the public to believe--was simply an
inaccurate portrayal of how police worked.
--Low-level decisionmaking by line personnel in light of practical and
real-life considera-tions was found to be a significant contributor to the
crime control and problem-solving capacity of criminal justice agencies.
This was true not only for police but for prosecutorial and other
decisionmaking personnel as well.
--Criminal law was used to solve many social problems, not just serious
crimes.
--Behaviors designated as unlawful in criminal codes, such as assault,
were found to be extraordinarily diverse in nature and included everything
from private debt settlement and spousal abuse to attacking strangers.
--The policies of each criminal justice agency were found to have an
impact on other criminal justice agencies.[7]
Given the pervasive use of discretion in daily police work, the most
obvious question the survey raised was why legal scholars, criminal justice
academics, and practitioners had failed to note it in the past--why were
these findings such a surprise.[8] The answer, of course, testified to the
power of reform ideology and its imagery. As Samuel Walker notes:
The intriguing question, of course, is how 40 crime commissions, which
involved the best minds of their day--Felix Frankfurter and Roscoe Pound,
among others--could fail to see such a crucial feature of the administration
of justice. The answer is that phenomena which are self-evident to one
generation are not necessarily evident to others. This highlights the role of
paradigms in scientific research. Paradigms describe observed phenomena,
define problems, and guide research. Phenomena that fall outside the
prevailing paradigm either are not noticed at all or are dismissed as
unimportant and not worthy of investigation. So it was with discretion for
early crime commissions.[9]
Reflecting on these findings, Kenneth Culp Davis, emphasizing the central
role of police in the justice process, estimated that about half of the
discretionary decisions made by criminal justice agencies were made by
police.[10] He added: "The police are among the most important
policymakers of our entire society. And they make far more discretionary
determinations in individual cases than any other class of administrators; I
know of no close second."[11]
Throughout the 1960s and 1970s, scholars, fascinated by how low-level,
low-visibility discretion was used by patrol officers, studied police
functioning. Not surprisingly, study after study confirmed the ABF
findings: police work is complicated, a small portion of police time is
spent on criminal matters, and police use discretion throughout their
work.[12]
Consequently, some scholars and policymakers began to study how to
control or shape discretion. At this point, their thoughts began to diverge.
Some researchers focused on the abuses of authority that were reported in
the survey's findings. A few advocated eliminating police discretion
altogether, at least in the decision to arrest. Joseph Goldstein stated this
point of view most strongly:
The ultimate answer is that the police should not be delegated discretion
not to invoke the criminal law. . . . [T]he police should operate in an
atmosphere which exhorts and commands them to invoke impartially all
criminal laws within the bounds of full enforcement. . . . Responsibility for
the enactment, amendment, and repeal of the criminal laws will not, then,
be abandoned to the whim of each police officer or department, but
retained where it belongs in a democracy--with elected
representatives.[13]
Eliminating police discretion completely, even in the decision not to
arrest, has always been a minority view. Goldstein's view has been most
intensely debated as it pertains to domestic violence--a problem largely
invisible to the public prior to the ABF report. Prosecutorial discretion in
the handling of domestic violence was also highlighted by early ABF
reports.14 Since then, discussion, debate, and policy regarding police and
prosecutorial handling of domestic violence have changed directions
several times. A review of research on the impact of criminal justice
responses to domestic violence testifies, more than anything, to the
complexity of the problem and the need for preventive problem-solving
approaches.[15]
Notes
1. Remington, Frank, J. "Police in a Democratic Society," Journal of
Criminal Law, Criminology and Police Science (1965): 361.
2. Leonard, V.A., Survey of the Seattle Police Department, Seattle, WA,
1945.
3. Personal interview with Herman Goldstein, Madison, WI, September 2,
1994.
4. Goldstein, Herman, "Confronting the Complexity of Police
Functioning," in Discretion in Criminal Justice: The Tension Between
Individualization and Uniformity, ed. Lloyd E. Ohlin and Frank J.
Remington, Albany, NY: State University of New York Press, 1993: 28.
5. Ohlin, Lloyd E., "Surveying Discretion by Criminal Justice Decision
Makers," in Discretion in Criminal Justice: The Tension Between
Individualization and Uniformity, ed. Lloyd E. Ohlin and Frank J.
Remington, Albany, NY: State University of New York Press, 1993: 6.
6. Personal conversations with Herman Goldstein.
7. The findings were first used in Kelling, George L., "Toward New
Images of Policing: Herman Goldstein's Problem-Oriented Policing," Law
& Social Inquiry 17 (3) (Summer 1992): 545.
8. The final reports were published in five books, all edited by Frank
Remington and published by Little, Brown and Company (Boston, MA):
Lefave, Wayne, Arrest: The Decision to Take a Suspect Into Custody
(1965); Newman, Donald J., Conviction: The Determination of Guilt or
Innocence without Trial (1966); Tiffany, Lawrence P., Donald M.
McIntyre, Jr., and Daniel Rotenberg, Detection of Crime: Stopping and
Questioning, Search and Seizure, Encouragement and Entrapment (1967);
Dawson, Robert O., Sentencing: The Decision as to the Type, Length and
Conditions of Sentence (1969); and Miller, Frank W., Prosecution: The
Decision to Charge a Suspect with a Crime (1970).
9. Walker, Samuel, Taming the System: The Control of Discretion in
Criminal Justice, 1950-1990, New York: Oxford University Press, 1992:
7-8.
10. Davis, Kenneth Culp, Discretionary Justice: A Preliminary Inquiry,
Baton Rouge, LA: Louisiana State University Press, 1969: 166.
11. Ibid., 222.
12. Wycoff, Mary Ann, The Role of Municipal Police Research as a
Prelude to Changing It, Washington, DC: Police Foundation, 1982.
13. Goldstein, Joseph, "Police Discretion Not to Invoke the Criminal
Process: Low-Visibility Decisions in the Administration of Justice," Yale
Law Journal 69 (4) (1960): 587.
14. Miller, Frank, Prosecution: The Decision to Charge a Suspect with a
Crime, ed. Frank J. Remington, Boston: Little, Brown and Company,
1970.
15. For a summary of the thinking in the area of domestic violence and an
example of an individual author's evolution in thinking, see Parnas,
Raymond I., "Criminal Justice Responses to Domestic Violence Issues," in
Discretion in Criminal Justice: The Tension Between Individualization
and Uniformity, ed. Lloyd E. Ohlin and Frank J. Remington, Albany, NY:
State University of New York Press, 1993: 175-210.
-------------------------------
The Police Guidelines Movement
Other scholars have seen police discretion in terms that have differed from
those of Joseph Goldstein. Frank Remington, Herman Goldstein, and
James Q. Wilson, among others, were aware of the possibilities of abuse
but understood both the inevitability of discretion and the inherent
opportunities for problem solving it offered police and other criminal
justice agencies. Wilson, for example, wrote in 1968: "The patrolman, in
the discharge of his most important duties, exercises discretion
necessarily, owing in part to his role in the management of conflict and in
part to his role in the suppression of crime."[1] The issue was to eliminate
unnecessary discretion and enhance and shape necessary discretion.
During the mid-1960s, about the same time the American Bar
Foundation's Survey of Criminal Justice reports were first published,
President Lyndon Johnson created the Commission on Law Enforcement
and Administration of Justice, his answer to Barry Goldwater's challenges
about crime during the 1964 presidential race. The Commission was set up
to study crime and society's response to it. Its findings, as presented in its
report entitled The Challenge of Crime in a Free Society, have shaped
criminal justice thinking during the past 35 years.
How the findings in the ABF's Survey on Criminal Justice and the
Commission's Challenge of Crime in a Free Society support and
contradict each other is not at all clear. The history of this era in criminal
justice has not yet been written.[2] Clearly the commission captured
popular and professional thinking and eclipsed the ABF's work--popularly,
professionally, and sadly, it should be noted, academically.
One reason why the ABF's survey did not receive the recognition it
deserved was because it examined an enormous amount of data and first
began presenting survey data in 1965, approximately 9 years after the
initial work began (1956) and almost simultaneously with the work and
publications of the President's Commission (1967). (The five volumes of
the survey were published between 1965 and 1970.)
The ABF's survey and the President's Commission came to be linked in a
number of ways. Lloyd Ohlin, one of the survey leaders, became an
associate director of the Commission's staff. Both Frank Remington and
Herman Goldstein, also survey leaders, consulted with Commission staff
and its director James Vorenberg. Ideas first raised in the survey found
their way into the Commission's report, especially the use of discretion
and the idea of a criminal justice system. Yet, in the case of police, the
President's Commission kept itself anchored in the reform tradition. The
report emphasis is response time, administrative improvements, and police
as the front end of the criminal justice system. It focuses police, as well as
other criminal justice agencies, on case processing--an orientation that
atomizes and obscures complicated neighborhood and community
problems.
On balance, system improvement won the day in the Commission's report.
Relations with the community had to be improved and better personnel
had to be recruited, yet the basic policing paradigm went largely
unchallenged: police business was to ride around in cars and respond to
calls for service. Police in the 1960s, who were insular and suspicious of
outsiders, especially the liberal academics who staffed the Commission,
nonetheless found their hand had been strengthened. Police were now part
of a criminal justice "system," and their business was clearly defined as
arresting and processing offenders. The full impact of the ABF's survey
became apparent in the late 1980s and early 1990s, when community and
problem-oriented policing would refocus attention on the true complexity
of policing.
Nonetheless, minor themes in the Commission's report pointed to the
impact of the ABF efforts in its call for guidelines for controlling police
discretion:
Police departments should develop and enunciate policies that give
police personnel specific guidance for the common situations requiring
exercise of police discretion. Policies should cover such matters, among
others, as the issuance of orders to citizens regarding their movements or
activities, the handling of minor disputes, the safeguarding of the rights of
free speech and free assembly, the selection and use of investigative
methods, and the decision whether or not to arrest in specific situations
involving specific crimes.[3]
The truly remarkable outcome of the President's Commission can be
found in its companion report, Task Force Report: The Police. Chapter 2,
which was authored by Frank Remington and Herman Goldstein, remains
the definitive source on police policymaking and structuring discretion.[4]
The section entitled "The Need to Recognize the Police as an
Administrative Agency with Important Policymaking Responsibility"
clearly is not only out of the "reform box" but also so far ahead of the field
that its full impact is yet to be felt.5 Remington and Goldstein wrote:
There are two alternative ways in which police can respond to the difficult
problems currently confronting them:
(1) The first is to continue, as has been true in the past, with police
making important decisions, but doing so by a process which can fairly be
described as "unarticulated improvisation." This is a comfortable
approach, requiring neither the police nor the community to face squarely
the difficult social issues which are involved, at least until a crisis--like the
current "social revolution"--necessitates drastic change.
(2) The second alternative is to recognize the importance of the
administrative policymaking function of police and to take appropriate
steps to make this a process which is systematic, intelligent, articulate, and
responsive to external controls appropriate in a democratic society; a
process which anticipates social problems and adapts to meet them before
a crisis situation arises.
Of the two, the latter is not only preferable; it is essential if major
progress in policing is to be made, particularly in the large, congested
urban areas.[6]
Included in Remington and Goldstein's formulation is a diagrammatic
representation of the policymaking process. (See "Formulation and
Execution of Police Policy.")[7]
For the most part, outsiders to policing were the first to pick up on
Remington and Goldstein's line of thought and advocate the development
of strong guidelines similar to those used by administrative agencies.
These advocates included scholars, reformers, lawyers, a few renegade
police chiefs, and others who believed that beyond the guidance that
courts, legislatures, prosecutors, and local officials could provide to shape
officer discretion, police themselves had to develop their own professional
guidelines. Guidelines, as distinguished from administrative rules in the
minds of those advocating formal and public policymaking, would assist
police in controlling crime, increase police responsiveness and
accountability, allow for police input into policymaking and legal
deliberations, and, as Warren LaFave suggests, encourage courts to respect
police professional judgment.[8]
Convinced that the development of guidelines was central to improving
police performance and accountability, the Police Foundation--created by
the Ford Foundation in 1970 with a $30 million endowment--funded two
early major efforts to develop guidelines. One was a program in
rulemaking at Arizona State University Law School under the direction of
then faculty member Gerald Caplan. The second was an effort in the
Boston Police Department (BPD) under the direction of Sheldon Krantz
who, at that time, directed the Center for Criminal Justice at Boston
University.
Caplan's Arizona State project helped 10 police departments develop
model policies that would "channel" police discretion through "carefully
researched and articulated rules--rules formulated in categories meaningful
to a policeman, rather than law textbook groupings not related to the
situations likely to be encountered on the next tour of duty."[9] Krantz's
efforts in the BPD were more focused, concentrating initially on three
areas of criminal investigation--search warrants, motor vehicle searches,
and searches incidental to arrest--and involved the use of task forces
composed of line as well as administrative staff. Later the efforts expanded
to include additional investigative areas as well as drug enforcement
issues.
Herman Goldstein was prescient when he wrote in 1967:
The overall picture, however, reflects a reluctance on the part of police
administrators to establish policies to fill the existing void. This reluctance
is in sharp contrast to the strong tradition within police agencies for
promulgating a variety of standard operating procedures to govern the
internal management of the police force.[10]
Academics, scholars, and lawyers might want police to develop
guidelines, but the insularity of police and their reluctance during the
1950s, 1960s, and much of the 1970s to allow any outsider to get involved
in the business of policing doomed efforts such as the Caplan and Krantz
projects.
Although the development of guidelines was a promising means of
strengthening police practice, police would have little to do with such
efforts. In retrospect, Caplan remarked: "The timing was just not right. We
could get a few police staff members to get involved in each department
we worked with, but the resistance to outsiders in police departments was
so strong that we really couldn't get much done."[11]
With no reports and few products--model rules were developed but, for the
most part, shelved--the project, like team policing in many cities, simply
faded away. Likewise, although Krantz found he could generate
enthusiasm in task force members, he could not generate any enthusiasm
for guidelines in either the BPD or other departments. In retrospect, Krantz
believes that a focus on routine police work, rather than the issues studied,
would have been a more profitable approach. Even at that level, however,
the field just was not ready.[12]
To be sure, a few chiefs of police understood the need for guidelines and
worked to develop them, but they were far from the norm, especially
during the 1960s and 1970s. Working with Caplan, Chief Jerry Wilson in
Washington, D.C., developed guidelines for eyewitness identification
procedures during the late 1960s to ensure police practices that were both
effective and legal.[13]
Likewise, Commissioner Patrick V. Murphy, in 1971, initiated guidelines
in New York City to mold police use of force, especially deadly force.
Two of the most innovative chiefs of this era were Robert M. Igleburger of
Dayton, Ohio, and Frank Dyson in Dallas, Texas. While Caplan and
Krantz focused on model rules and regulations that could be adopted by
individual police departments, Igleburger and his administrative assistant
Frank A. Schubert, now associate professor of criminal justice at
Northeastern University, developed guidelines that were location and
problem specific.[14] Funds for this effort were provided by the Police
Foundation in 1972.
Akin to Krantz's work, line police officers who had to deal with specific
problems were integrated into the decisionmaking process. Going beyond
earlier efforts, however, Igleburger and Schubert included in each task
force citizens who were affected by the problems. For example, during the
early 1970s, Dayton experienced friction between students and residents in
a working class neighborhood adjacent to the University of Dayton. Not
atypically, students who wanted to live off campus sought inexpensive
rooms and apartments in the neighborhoods surrounding the campus. The
conflict arose between working parents who wanted the neighborhood to
quiet down by 10 p.m. or 10:30 p.m., especially on weeknights, and
students who, after a day of classes and studying, wanted to engage in
other activities until the early morning hours. The result, of course, was
repeated calls to the Dayton police. Disturbance violations of one form or
another, especially noise violations, were the most common complaints.
As part of the police/public policymaking project, Schubert, along with
neighborhood officers, polled residents and students, met repeatedly with
both, and learned more about the neighborhood and its problems. Once the
police understood neighborhood standards about noise and other issues
that could cause conflict between students and other residents, they
developed guidelines that police would use to enforce those standards. The
standards and guidelines were then printed and widely distributed to all the
concerned parties. (See "Dayton, Ohio, Issues Guidelines Related to
Student and Nonstudent Residents.")
As Schubert makes clear, issuance of the guidelines was not a
once-and-for-all determination. Each year the process was repeated to
update policies and to ensure that new students, residents, and police
understood and endorsed police policies regarding enforcement of bans on
noise and other forms of disturbance.[15]
Just as the time was not right for model rule- making during the 1970s, the
time was not right for public policymaking in Dayton either. When
Igleburger retired as chief of the Dayton Police Department in 1973, the
program faded away. When I consulted with a blue-ribbon citizen group
commissioned to examine the tragic death of an innocent citizen that
occurred during a botched special unit operation during the late 1980s, no
traces of police/public policymaking could be found. Reports on the
police/public policymaking project were never published or disseminated,
although Igleburger and Schubert published one brief article in 1972 on
shaping discretion through police/public partnerships.[16] Generally
speaking, academics, foundations, and others lost interest in guidelines as
well, although publication of a few articles about controlling police
discretion continued into the 1980s, mostly in law journals. A few
departments developed guidelines, but this was not the general rule.
The idea of model policies, rules, and regulations was somewhat revived
by development of the accreditation movement in policing during the
1980s. However, the process had relatively little impact on how line
officers should use or have used their discretion. Research interest shifted
to experiments in police tactics, largely as a result of the early work of the
Police Foundation in Kansas City, Missouri, Cincinnati, Ohio, and
Newark, New Jersey. "Big" issues, such as preventive patrol and response
time, or "sexy" issues, such as use of force and domestic abuse, largely
dominated the attention of police researchers.
During the late 1970s and 1980s, as the Police Foundation's financial
resources dwindled, the National Institute of Justice (NIJ) assumed
leadership in guiding research, but shaping discretion was not the
commanding issue that it had once been. Saying this should not diminish
the value of much Police Foundation and NIJ-funded research: it
contributed enormously to the understanding of police work and
reconsideration of the reform strategy. Nonetheless, a crucial movement in
policing--developing guidelines to shape police discretion--lost its impetus
because the field simply was not yet ready for it during the 1970s. Police
business was still police business.
Notes
1. Wilson, James Q., Varieties of Police Behavior, Cambridge, MA:
Harvard University Press, 1968: 278.
2. Kelling, George L., "Toward New Images of Policing: Herman
Goldstein's Problem-Oriented Policing," Law & Social Inquiry 17 (3)
(Summer 1992): 539-559; and Kelling, George L., and Catherine M.
Coles, Fixing Broken Windows: Restoring Order and Reducing Crime in
Our Communities, New York: Free Press, 1996.
3. President's Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society: A Report by the
President's Commission on Law Enforcement and Administration of
Justice, Washington, DC: U.S. Government Printing Office, 1967: 104;
guidelines were also strongly endorsed by the report of the American Bar
Association's Committee on the Urban Police Function (American Bar
Association, "The Urban Police Function," Approved Draft, Institute of
Judicial Administration, New York, 1973) and the report of the Kerner
Commission, the National Advisory Commission on Civil Disorder
created to study urban rioting (Kerner Commission, Report of the National
Commission on Civil Disorder, New York: Bantam Books, 1968).
4. Remington, Frank, and Herman Goldstein, "Law Enforcement Policy:
The Police Role," Task Force Report: The Police, Washington, DC: U.S.
Government Printing Office, 1967: 13-41.
5. Wilson, Varieties of Police Behavior, 285. In the final chapter,
"Conclusions and Policy Implications," which anticipates the problems
inherent in developing police discretionary guidelines, Wilson writes:
"Politics, in the broad sense of community involvement in policymaking,
will be used to achieve what administrative rationalization cannot."
6. Remington and Goldstein, Task Force Report: The Police, 18.
7. President's Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society, 105.
8. See LaFave, Warren, "Police Rule Making and the Fourth Amendment,"
in Discretion in Criminal Justice: The Tension Between Individualization
and Uniformity, ed. Lloyd E. Ohlin and Frank J. Remington, Albany, NY:
State University of New York Press, 1993: 211-277; and Caplan, Gerald
M., "The Case for Rule-making by Law Enforcement Agencies," Law and
Contemporary Problems 36 (4) (1971): 500-514.
9. President's Commission on Law Enforcement and Administration of
Justice, The Challenge of Crime in a Free Society, 502.
10. Goldstein, Herman, "Police Policy Formulation: A Proposal for
Improving Police Performance," Michigan Law Review 65 (April 1967):
1123-1146.
11. Personal telephone conversation with Gerald Caplan, January 1994.
12. Personal interview with Sheldon Krantz, Washington, DC, July, 13,
1996; there were other attempts at administrative rulemaking, including a
collaboration between Texas officials and the International Association of
Chiefs of Police. See Ferris, Saadi, "Administrative Rule-making: Police
Discretion," Police Chief (June 1974): 70-71.
13. Wilson, Jerry V., and Geoffrey M. Alprin, "Controlling Police
Conduct: Alternatives to the Exclusionary Rule," Law and Contemporary
Problems 36 (4) (1971): 488-499.
14. This section paraphrases a discussion in Kelling and Coles, Fixing
Broken Windows, 191-192.
15. Personal interview with Frank A. Schubert, Boston, January 24, 1994.
16. Igleburger, Robert M., and Frank A. Schubert, "Policy Making for the
Police," American Bar Association Journal 58 (March 1972): 307-310.
-------------------------------
Development of Police Guidelines
My interest in complexity, discretion, and policymaking was restimulated
by my experiences working with New York City's Transit Police
Department during the late 1980s and early 1990s.[1] Confronted with
growing numbers of homeless people living in the subway system--a
mishmash of interrelated problems if there ever was one--police managers
proposed obviously contrived "cleaning operations" that were to be
"supported" by line officers. Maintenance personnel with high-power
hoses were to go into the subways where there were concentrations of
homeless people to "clean" the subways. Police, in support of these
cleaning operations, would eject the homeless. Dean Esserman, then legal
counsel for the transit police and now chief of the Stamford, Connecticut,
Police Department, dubbed the proposed operation "commando cleaning."
At my urging, David Gunn, then President of the New York City Transit
Authority, and Robert Kiley, then Chairman of the Board of the
Metropolitan Transportation Authority, rejected the plan for what it was--a
sham.
Instead, David Gunn created a police study group, which I advised. It
consisted of line officers, supervisors, and managers of the transit police as
well as civilian employees of the New York City Transit Authority. The
study group, using a variation of Herman Goldstein's problem-solving
methodology to address the issue, conducted patron and focus group
surveys that both helped to define the nature of the subway's problems and
provided public review of suggested police tactics.
It was quite apparent that line officers desperately wanted administrative
guidance and authority but were skeptical that it would be forthcoming.
Their initial view, put simply, was that managers dump problems into
officers' laps, stick their heads in the sand, and then, when the inevitable
legal challenges arise, say that dealing with homelessness is a hopeless
task--a position that police managers took earlier with graffiti--and then
return to business as usual. Fortunately, things did not work out this way.
Although it required a replacement of the transit police leadership to
implement the policies and tactics developed by the study group, the
outcome was restoration of order and astonishing drops in the level of
serious crimes, most notably a nearly 75-percent reduction in the number
of robberies.[2]
Beyond the problem-solving aspects of the experiences, however, I
returned to the literature on discretion to review the state of the art of
police department rules and regulations and general orders. The study
group anticipated that advocates for the homeless and civil libertarians
would sue the transit police once order maintenance efforts were initiated,
and that selective enforcement would be a major issue. Moreover,
advocates made it clear that they would challenge our attempts to control
panhandling using First Amendment free speech as the pivotal issue.
With awareness that the courts would look over our shoulders, it was
absolutely essential that we deal with how we would shape discretionary
guidelines and why panhandling, not just so-called aggressive
panhandling, should be banned in the subway. Even technical legal issues
were considered because we had to be prepared to demonstrate a
"compelling governmental issue," if courts found panhandling to be a
protected form of speech. Justifications had to be developed for police
actions in the subway that would make the typical knee-jerk response--
"throw the bums out" from the right and "criminalizing the homeless"
from the left--untenable to the general public.
In short, we were making public policy about a specific set of problems in
a particular set of locations that was similar to the process identified by
Remington and Goldstein and implemented in Dayton. Reflecting back on
the process, it became clear that our efforts to develop and implement
policies to restore order in the sub-way attempted to meet at least 11
standards.
The policies had to:
--Recognize the complexity of police work.
--Acknowledge that police will use discretion.
--Recognize and confirm how police work is conducted.
--Advance a set of values that may be applied to the substantive work
issue at hand.
--Put forward existing research, facts, or data about the substantive issue
at hand.
--Undergo development by practicing police officers and citizens.
--Undergo public promulgation in a manner clear to officers, the general
public, community stakeholders, and the courts.
--Include rules about what officers should not do.
--Emphasize police adherence to a process (application of knowledge,
skills, and values), rather than any predictable outcome, because outcomes
of police interventions are often wildly unpredictable regardless of
officers' skills, intent, and values.
--Establish accountability standards that identify competent and/or
excellent performance, violations of organizational rules, and incompetent
or uncaring work, including performance within organizational rules.
--Receive recognition as an ongoing and continuing process.[3]
These standards had broader applications and were presented to line
personnel in training sessions and experiments with their development in
several police departments.
Recognizing the Complexity of Police Work
The complexity of police work has two dimensions: the complexity of the
situations or problems confronting police, and the complexity of police
responses to those situations.[4] Panhandling is an example of how
complex a seemingly simple act can be. It is the subject of considerable
litigation between civil liberties groups and police departments across the
country, a clear example of external groups using litigation and the courts
to limit police discretion. (Advocacy groups do so with good reason--
police have used vagrancy, loitering, and panhandling laws to harass
citizens and discriminate against groups in the past.)
Until recently, "loitering for the purpose of panhandling" laws were the
state of the art and had appropriately replaced antiquated vagrancy and
overly broad loitering laws. Recently, court support has drifted from laws
against loitering for the purpose of panhandling to statutes that ban
aggressive panhandling. These include laws against touching someone
while in the act of begging, blocking free passage, and begging near
automatic teller machines, to give just three examples. Many libertarians
still object to such restrictions.[5] This shift toward aggressive
panhandling laws, of course, rests on the decision of some courts to
elevate panhandling to the status of political commentary about economic
injustices, and other issues, thereby making the practice a First
Amendment free speech issue.
It is unlikely that panhandling can be completely eliminated from city
streets. Because some beggars are no threat to anyone, it seems
appropriate to limit legislation and police action to aggressive
panhandling. Yet, in many cities, municipal officials are so certain that
civil liberties groups will take the city and police to court if they attempt to
enforce local panhandling laws that they no longer enforce their laws
against loitering for the purpose of panhandling.
Those who advocate aggressive panhandling laws (or tolerate them in lieu
of completely decriminalizing all begging behavior) and the courts that try
to steer cities toward specific forms of panhandling legislation assume that
aggressive panhandling behavior can be clearly defined in legislation, thus
eliminating police discretion in this matter. This further assumes that
aggressiveness can be defined solely on the basis of the act itself. This is a
tragic misunderstanding of street realities that will result in endless street
hassles for police officers and departments that understand the social and
economic costs of unchecked panhandling.
It is wrong to give meaning to behavior solely on the basis of an act itself
because the meaning of behavior is to be found in its context. Identical
behavior can be passive or aggressive, depending upon its context. At least
five contextual elements give meaning to behavior: time, location, number
or aggregation of events, condition of the victim/observer relative to the
perpetrator/actor, and the previous behavior/reputation of the
perpetrator/actor. A person standing at the top of subway stairs, holding a
paper cup, and begging during the 8 a.m. rush hour is not much of a threat.
At 10 p.m., the same panhandler, behaving in the same manner as
observed during the rush hour, is a genuine threat to a solitary elderly
woman returning home from work. The time and the location and
condition of the woman combine to turn the beggar's behavior into a
threat that anyone in the woman's position would feel and could result in
hassles and inconveniences for the woman as well as her reluctance to ride
the subway.
To the contrary, 20 panhandlers in Harvard Square in Cambridge,
Massachusetts, are little threat to citizens or, in turn, to commerce.
Harvard Square is so vibrant that it can absorb enormous levels of
deviance without substantial threat to citizens or commerce. Twenty
panhandlers in the central downtown area of Watertown, Massachusetts,
however, would threaten many citizens--especially the elderly and
infirm--and could wipe out its commerce. In this situation, the number of
panhandlers interacts with the location to give the behavior its meaning.
(See "Police Must Put Behavior in Context.")
The second dimension of complexity is officers' responses to situations or
problems. In the mid-1980s, David Bayley and Egon Bittner published
two papers that systematically viewed police work, its skills, and tactical
choices.[6] Based on research into police handling of domestic disputes
and self-initiated traffic stops, Bayley and Bittner examined the teachable
skills of patrol work. In the second article, Bayley "presents the results of
an attempt to describe as fully as possible the actions of patrol officers in
handling highly problematic situations."[7] Bayley and Bittner identify the
tactical choices police can make at three stages of encounters with
citizens: contact, processing, and exit. For example, a contact option for an
officer during a traffic stop is to ask the driver whether he knew why he
was stopped; a processing option is to warn disputants about what actions
police might take if their dispute persists; and an exit option is to arrest a
disputant.
Each tactical choice by the police, each citizen's response,
counterresponses by each, and changes in other variables in the context
(for instance, intervention of strangers) create a fluid, ever-changing
encounter.
A number of generic problems can arise over the course of an encounter
that may take officers beyond "common sense" or "command presence" as
they weigh the context of the situation and the tactical choices available to
them. Bayley and Bittner's research arose out of a desire to link officer
behavior with outcomes. In the realm of policymaking, the goal is to go
from hypothesized good practice--the wisdom or craft of the field as
embodied in good police officers, case studies, and research--to prescribed
"ways of thinking" about how to initiate a contact, process it, and close it
that are based on an officer's assessment of the event, its situational
context, and his or her choices.
Indeed, officers do this implicitly all the time. The officer who sees a
drunk harassing a pregnant woman with a young child at a busy
intersection may opt to use force (contact choice) by grabbing the man by
the shoulders, walking him away, and then admonishing him, rather than
simple admonishment, because he fears for the safety of the woman and
child. The condition of the man (drunk and lurching), the condition of the
woman (in late pregnancy and with another child), and the time of day and
location (on the curb during a period of heavy traffic) are the contextual
variables that determine the immediate use of force. Moreover, this
incident, which did happen, could be followed through Bayley and
Bittner's model with the changing nature of the context interacting
throughout the processing stage (the impact of comments by the drunk's
friends) and the final outcome (use of force and arrest).
Because officers have not been taught to explicate their implicit scanning
and diagnostic process, few of them can describe their handling of such
events beyond saying they relied on common sense. With some prodding,
officers can quickly move beyond such trivialization of their work. Ask
the officer, "Would you have behaved differently if the drunk was
harassing two power forwards from the Rutgers basketball team?" and he
probably would reply, "I probably would have had to protect the drunk
from the youths rather than vice versa." In other words, it is possible to
change the context of a scenario in ways that officers will immediately
recognize and, in turn, cause them to alter their responses.
In any policymaking or guideline development process it is necessary to
include, if not begin with, an explicit statement about the complexity of
both the problem and the range of officers' responses. How Bayley and
Bittner's model should be included in a total guideline development
process will become clearer in what follows because it is only the first of
11 elements. The second is the acknowledgment of discretion.
Acknowledging Police Use of Discretion
The preceding discussion provided a context through which officers can
think about how they deal with situations and problems and that will,
hopefully, lead to development of training materials, ultimately identify
the links between tactical choices and outcomes, and allow officers to talk
about their professional practices in a way that gives due credit to the
wisdom, skill, and values that are implicit and unacknowledged in police
work.
In any policy statement or guideline, departments must explicitly authorize
discretion and selective enforcement in the handling of situations and
problems. Such continued restatements are important, despite their
redundancy, because citizens, prosecutors, courts, lawyers, and legislatures
must clearly understand that the issue is not whether police officers use
discretion. The real questions are how officers use discretion and how their
use of it is shaped. Linking discretion to scanning, diagnosis, and tactical
choices makes it clear that use of discretion represents neither arbitrariness
nor the personal inclination of officers. (See "Prescribing What Officers
May Not Do.")
Inside police departments, assertions such as "I have a right to use my
discretion" can mask renegade police claims to do virtually anything, or
nothing, in the name of discretion. As Bayley and Bittner point out,
tactical choices can be limited regardless of the complexity of the event:
Situations can be ranked along a continuum from the cut-and-dried to the
problematic. For example, American officers have few doubts about what
to do when a man is found drunk lying on the ground in the winter. He
must be picked up and taken to a shelter. The choices are also fairly
limited in serious traffic accidents, alleged housebreaking, and assault with
a deadly weapon witnessed by a police officer. This is not to argue that
some choices are not involved in such cases--officers can turn a blind eye
or overreact--but rather that the appropriate responses are clearly
recognized by everyone involved--patrolman, public, and command
officers. The appropriate action may not be easy to take, but it is
obvious.[8]
When officers, regardless of their motivations, fail to do what they should,
"discretion" is no excuse.
Public officials' assertions that officers rely on personal inclination in
their work can mask the officials' ignorance or serve as political
ammunition in legislative or court processes. In litigation challenging
police order maintenance efforts, defense attorneys often will attempt to
sway judges by demeaning police motives and actions as expressions of
the officers' personal inclinations. Currently, many city attorneys and
departments are ill prepared to counter such arguments because they have
not intelligently articulated their position regarding discretion. For
example, one city recently asked me to help defend its policies regarding
homeless encampments. Because I knew selective enforcement would be
an issue, I asked to see all relevant departmental general orders, training
materials, and rules and regulations that were used to shape how officers
handled this problem. No such materials existed. Under such
circumstances, it is not the fault of those challenging the police or the
judge in the matter if the department or the city has not done its
homework.
If discretion is properly linked to complexity, as suggested above, it will
become increasingly clear that discretion is, or at least ought to be, shaped
by professional police and departmental knowledge and skill, not personal
inclination.
Recognizing and Confirming How Police Work Is Conducted
The nature of police work can be explicitly detailed in departmental
guidelines or policies. It is important that everyone involved in developing
or using these guidelines either understands or acknowledges policing
realities, which include the following:
--The majority of police work is conducted by an officer working alone
or with a partner.
--The officer must make decisions outside the purview of supervisors or a
command system.
--The officer must make decisions based on internalized knowledge and
skill.
These circumstances are not incidental to American policing. In both
England and the United States, police originally were diffused throughout
society rather than either barracked or deployed in units for tactical
reasons (to increase their presence) and for control and accountability
purposes. Officers operating alone and embedded in the community would
be strongly influenced by citizens and forced to seek their approval--an
essential element in early 19th century policing given how distrusted
police were in both countries.
There can be exceptions to officers working alone--special units, group
activities, and so forth--when immediate command or supervision is
present, but standard police operations call for an officer to work alone or
with a partner without overseers (in a literal sense). The full consequences
of diffusing officers throughout communities may have been mitigated by
use of automobiles and radios. Nevertheless, myths that officers can be
supervised or commanded directly must be undone because they
perpetuate the current misconceptions that police work can be organized
and administered like a factory process. Such organizational control over
offi-cers simply does not exist.
Advancing Values
The term "values" has two meanings in the context of police discretion: (1)
overall values to be articulated and attained, and (2) underlying values and
morals that shape discretion and limit tactical choices. The distinction
between attaining values and attaining goals is based on police
organizations' need to maintain vision and perspective. The values to be
attained in the New York City subway system included providing safe,
rapid, comfortable, reliable, and fear-free transportation. A number of
departments and agencies were responsible for attaining these values. The
police had and shared particular responsibilities, including graffiti control,
protection of passengers and staff, maintenance of order, and protection of
citizen rights. In performing these responsibilities, goals were set:
eliminate graffiti by 1989, limit and regulate panhandling, reduce
robberies, protect schoolchildren during rush hours, and so forth.
When departments articulate the ultimate values to be attained, officers
can focus on loftier goals than the trivial, messy, and distasteful tasks that
make up much of daily police work. Where such values are not articulated,
it is difficult for offi-cers to maintain the idealism and vision that many
bring with them as young recruits. Perspective on the proper police role in
society also suffers. Values in this sense inspire officers, especially when
they are wrestling with nitty-gritty problems, considering tactical choices,
and planning overall strategy. In this light, dealing with panhandling in
New York's subway system is not seen as "throwing the scumbags out"
but, rather, as protecting citizens, reducing fear, putting police in contact
with hardened criminals, and preventing crime--all of which contribute to
quality transportation, especially for the working classes who cannot
afford other options.
The external benefit of getting and keeping police officers focused on the
higher values inherent in their work is that doing so communicates to the
public a true vision of the purpose of policing in a democratic society.9 In
controversial policy areas, putting values forward is not only important in
its own right but also does not concede the moral high ground to policy
opponents. In developing policing policies for New York's subway
system, we believed that advocates for the homeless, with their insistence
that the homeless should be allowed to camp in tunnels--as dangerous and
unhealthy as they are--were cynically exploiting the issue to make a
political point. Protection of the constitutional rights of all citizens,
including the needy homeless who lived in the subway system, was a key
value to be articulated. While the homeless enjoyed the same rights as
everyone else, they also had to abide by the rules.[10] (It was common
practice for transit police to waive the fare for homeless persons who
would ask the officers if they could use the subway to get to a shelter. The
officers knew that this was often a scam, but, nonetheless, the rules of the
subway were honored in the request and civility was maintained.
Moreover, many persons were desperate and needed free transportation to
get to help, and it was appropriate for officers to assist them. Under certain
conditions police would even call a van to get groups of persons to help or
to shelters.)
Values in the latter sense refer to the maintenance of moral and
constitutional values in police work. Virtually every police department
now has some statement of departmental values, which, while undeniably
proper, arguably are of little relevance to day-to-day policing. While the
high value put on human life shapes policies regarding use of deadly force
in every police department, deadly force is "sexy" stuff--shooting people--
and has little to do with routine police work.
Guidelines and policy statements can be at the core of linking values to
police work. Moral and constitutional issues are rife in police work, and it
is almost inevitable that one will confront these basic issues in any attempt
to solve problems or develop policies. A good example of linking values
to policy in routine matters is found in the San Diego Police policy
statement regarding undocumented persons that was discussed earlier. In
the context of a discussion about what role the local police department
should play in the enforcement of immigration laws, the statement "the
San Diego Police Department recognizes and values the diversity of the
community it serves" gains fresh and specific meaning.[11]
Likewise, the New York City transit police had to consider a mayoral edict
(i.e., that no one could be ejected from public facilities if the temperature
dropped to 32 degrees Fahrenheit) in developing policies regarding when
rule breakers would be ejected from the system. The value that
underpinned this decree was, of course, the value of human life--that
someone ejected from a public facility could freeze to death. The question
was whether the Metropolitan Transportation Authority and the transit
police were going to honor this proclamation (as a State agency, the
transportation authority is not under the mayor's direct administrative
control, although the mayor has enormous influence over its policies and
practices). The initial response of almost everyone in the study group was
reflexive: of course, the rule would be honored. To consider the widest
possible range of options in the effort to restore order, however, members
of the study group ultimately agreed that ejection of disorderly persons
had to be considered in practically every circumstance, including bad
weather. Given the volatility of the issue, the study group understood that
Chairman Robert Kiley of the Metropolitan Transportation Authority
would make the final decision. We were obliged to wrestle with the issue
and make recommendations to him.
The discussions about whether people should be ejected from the subway
system during freezing weather were fraught with emotion. One member
vehemently maintained there was no way that he was going to order
someone ejected to die in the cold. The issue was complicated by the fact
that the majority of the homeless persons who violated the rules were
serious alcohol and/or drug abusers, mentally ill, or both. Clearly, this was
a vulnerable population in need of special consideration. At the same time,
people were dying of hypothermia in the subway. Staying in the subway,
as some advocates urged the homeless to do, exposed them to
life-threatening risk. The group's final recommendations to Kiley were that
rule violators were to be ejected regardless of the weather; that at
temperatures below 40 degrees, bus transportation should be made
available for those who wished to go to a shelter; and that in cold weather
police should be especially scrupulous about taking into custody any
persons who appeared to be  incapable of helping themselves or who were
improperly clothed and refused bus transportation to a shelter.
Value issues need not be so grand as life and death. What about youths in
parks on hot summer nights in densely crowded neighborhoods? Should
they be allowed to stay beyond a 10 p.m. curfew if they are quiet and
don't drink? What potential values would be served? What values would
be eroded? What about street vending? What rights do vendors have or
should they have? Do the current means of obtaining licenses
inadvertently discriminate against particular groups or persons? Are there
ways to control or manage vending that do not deprive poor persons of the
opportunity to earn money in otherwise honest ways? How are the rights
of vendors balanced against the rights of shopkeepers who are paying high
rent and other forms of overhead?
How should civil initiatives be used? What self-imposed limits should
police develop in the use of civil initiatives as a tactical choice in solving
problems? Does their use at times inappropriately circumvent criminal due
process?
These are issues that police themselves should address because, if they do
not, it is only a matter of time until others, most likely the courts, will do
so. Even if the courts or other authorities do address these issues, it would
be better if the police position were presented proactively after it has been
carefully carved out in the real world and adapted in such a way that
routine police work makes concrete the abstract values that need to be
articulated when the relevance of the values is not always apparent.
Putting Police Knowledge Forward
Over the past several decades, research and case studies have enriched the
factual and empirical base from which police operate. Much of this
knowledge is available not only in traditional forms--academic publication
in books and journals and in research publications of the National Institute
of Justice--but also, more recently, over the Internet. The Police Executive
Research Forum, for example, currently publishes case studies of problem
solving on the Internet. Such research and case studies are valuable for at
least three reasons. First, they put forward a model of systematized
thinking about police business. Second, they provide factual evidence
about the impact of particular police activities. Finally, they provide the
intellectual justification for police practices, especially when they are
challenged legally.
In New York's subway system, for example, two bodies of research were
of special importance in developing policies. The research about
homelessness was valuable because it helped distinguish the subway's
problems, which were primarily problems of disorder, from the general
problems of homelessness. Moreover, research about the links between
disorder and fear was relevant to police managers and officers, who
needed to be convinced that order maintenance was important police
business, and also to the media and general public.
The transit police studying the problem, however, did their own research
as well. They counted the homeless, checked records to determine the
criminal histories of rule violators, surveyed middle level managers about
their perceptions of the problems, talked with persons violating subway
rules, photographed locations to determine the extent of rule violations,
conducted focus groups with passengers, and surveyed riders through the
Metropolitan Transportation Authority. Consequently, the literature
reviews and independent research were presented not only in policy
statements but also in training materials, educational materials intended
for the general public, and media releases. It was also essential in the
litigation that accompanied policy implementation.
Undergoing Development by Practicing Police Officers and Citizens
I have been involved with practicing police officers in problem-solving
exercises from the early 1970s in Kansas City (to determine how increased
numbers of police should be used in the South Patrol District--a problem
that gave rise to the Kansas City Patrol Experiment) through the 1990s in
New York City around the problem of squeegee men. Some of the
exercises have been quite formal, others less so. The sincerity with which
officers approach such exercises has been impressive, but, to be sure, they
view such exercises with great skepticism. Task forces, they have said, are
used to undercut unions, or officers' comments and observations will be
ignored. Often, officers harbor unspoken resentment that a civilian--a
social worker from Harvard at that--should be involved in helping police
think about what their work is and how they should do it. When such
posturing is finished, however, officers have worked hard to understand
problems, consider solutions, and carry messages out to their colleagues--
an invaluable asset in attempts to gain officer support of new efforts. Some
task force members remain cranky--in some departments I have
deliberately requested that the most obdurate officers be placed on a
serious task force--but I have observed those same officers often either
join the study process or allow their "crankiness" to be managed by the
other officers.
Regarding "big ticket" issues, such as restoring order in the subway, it is
also worthwhile to broaden input through targeted departmental surveys.
For example, we anticipated that we would have to develop wide support
for order maintenance activities among transit district captains. To do so,
we had to understand their concerns and seek their input in developing
policies. Meeting with all district commanders proved to be unworkable.
Consequently, a draft policy was distributed to district captains along with
a questionnaire to ascertain whether the policy accurately reflected the
problem, recommended appropriate responses, and offered realistic
implementation plans. The data gathered were then used to shape the
evolving plan.
Persons who do the work and understand the daily issues provide rich
experiences, data, and insight during problem-solving or guideline-
developing exercises. Many officers need help in articulating their points
of view. Some ideas must be validated. More than once, I have heard an
interesting point of view put forward by an officer who was pounced on by
an administrator who said "we can't do that." Yet, it later became apparent
that the idea could be implemented and, moreover, provided the key to
unlocking the solution to the problem.
The role of citizens in guidelines development is less clear. Generally, it is
a good idea to involve citizens. What form citizen involvement should
take, and whether all policy issues require or should have citizen input,
also is less clear; police departments are gaining experience in how to
approach this issue. In the New York subways, citizen input came from
civilian Metropolitan Transportation Authority employees and focus
groups. As a general principle, citizens should be involved in
policymaking, and the burden of proof always should be on those who
wish to exclude citizens from a role in policymaking, not on those who
wish to include them.
Clearly, depending upon the issue, citizens should consent to and support
police policies. The notion that police can operate in a democratic society
authorized solely by the law went out with the riots of the 1960s, although
police must relearn this lesson in some communities. Additionally, we
want citizens to cooperate with police when called upon to do so.
Finally, in many issues police need the active partnership and
collaboration of citizens to solve problems. In such cases, citizen
involvement in policy development seems to be a prerequisite for
collaboration. A myriad of issues, of course, surface when citizens become
involved in policymaking. Which citizens? Should they be representative?
Of whom? To what extent should opponents of policies--say homeless
advocates who are opposed to antiaggressive panhandling ordinances--be
involved in policy development? How do police reconcile competing
interest groups in communities? Such questions aside, citizen involvement
can educate individuals about problems, involve them in decisionmaking,
define the citizen role in problem solving, gather citizen support for police
action, and help citizens understand police limitations.
Undergoing Clear and Broad Public Promulgation
Police policies should be clearly written and targeted at practicing police
officers and the affected citizens, which should include political leaders,
community stakeholders, and the media. Guidelines should be
communicated to these target groups in ways that encourage their
discussion and review.
Many people outside policing would be shocked by the current
business-as-usual approach to general orders and rules and regulations,
often about highly controversial and politically charged issues, that many
police departments pursue. Frequently drafted by and for lawyers (staff
lawyers of police departments and city attorneys), they are filled with legal
and bureaucratic jargon. Practicing police officers are not involved in their
development and do not review them before they are promulgated.
Important general orders are distributed many times in pay envelopes (and
promptly thrown out as junk mail). Their reading at role call is often
perfunctory, often accompanied by the reader's sneers or eye rolling, and
delivered in a fashion that discourages discussion or questioning. It is no
wonder that in department after department I have observed officers treat
such policies with disdain: they are written to protect the city and
management from liability; they have "someone's name on them"--they are
written in response to a particular officer's mistake; they are used to "get"
officers when they make honest, but highly public, mistakes; and so forth.
While our experience in dealing with disorder in New York City's
subways was a "big ticket" problem--one that required a shift in the basic
operation of the department--how the policy was promulgated was
instructive. All documents were either developed by or reviewed by police
offi-cers in the study group. As drafts emerged, study group members
were encouraged to share them with other officers and to solicit feedback
about their relevance and clarity. Once policies had been developed, in
addition to training and video messages played at roll call and made
available in all districts, a leaflet was developed and distributed to all
officers. The leaflet explained the new policies and answered critical
questions about what was being done, why it was being done, what moral
and constitutional issues were raised, and what impact the new policies
were expected to have. Officers were encouraged to carry copies of the
leaflet and to distribute them to citizens who might question police
policies.
Externally, promulgation was widespread. Signs were posted delineating
subway rules; op-ed pieces were published; political leaders, advocacy
groups, and the media were consulted with and briefed; and other agencies
that would be affected by subway policies and had been included in
planning were also briefed. In addition, leaflets made to look like desk
appearance tickets (citations) were printed for distribution to rule violators
during the 2-week period prior to implementation of the new policies. In
essence, they informed rule violators that they would be subject to
ejection, citation, or arrest if they persisted in violating the new rules after
a particular date.
To be sure, this was a "big" problem and enormous resources were spent
in developing and implementing policies. Nonetheless, the principles hold
true even for routine matters: they not only involve citizens and police in
developing policies but also put those policies forward in ways that are
clear and forthright.
Emphasizing Police Adherence to a Process
Our understanding of the links between police actions and citizen reactions
and outcomes is so extraordinarily primitive that we cannot realistically
hold officers accountable for outcomes. An officer handling a person on
the threshold of committing suicide might apply all the craft of the police
trade and the result could still be a suicide. Likewise, a unit handling a
hostage situation might negotiate with considerable skill, yet a hostage
might be killed. Even in minor situations, an officer might gently
reprimand an aggressive panhandler and still wind up with an ugly
incident.
The goal is to train officers to assess situations accurately and choose
responses that are consistent with the state of the art of their occupation.
Moreover, police should articulate both the complexity of situations and
the reasons for their tactical choices--that is, to end their reliance on
justifying their actions as "common sense" or "appropriate action." In
effect, good policy statements prescribe not what an officer should do--this
is impossible in the real world; rather, they prescribe how an officer
should think about a problem and choose among alternative solutions.
Good policy statements should say: "These are the factors you must
consider when you approach a situation. These are the values that should
guide you. These are the choices you have at your disposal."
Good policy statements should provide the language that officers use to
describe their work for both development of ongoing police knowledge
and supervisory purposes. So little police work is conducted under the eye
of supervisors that the only way to oversee most routine police work is for
officers to talk about their work with their superiors. Talking about police
work allows supervisors to mentor officers in problem solving (e.g.,
"What alternatives did you have at this moment?") and, over time and with
the assistance of case studies and other research, begin the process of
linking police thinking and tactics to outcomes. (A note regarding
mentoring offi-cers: this approach to supervision does not assume that
sergeants "know best" about how officers should have handled situations.
Sergeants should help officers review their work to ensure they considered
all the proper factors in their decisionmaking process.)
Establishing Accountability
Good policy guidelines allow supervisors and administrators to distinguish
between officers who operate within the rules and yet behave in an
uncaring and incompetent fashion, and offi-cers who bend or break the
rules and yet behave in a caring manner. In one example, an officer in a
midwestern city was dispatched to respond to a call from a two-story flat.
A man who lived alone upstairs had called the police at about 11 p.m. on a
winter night to report that two young girls, ages 7 and 9, who lived
downstairs had been left alone for several days. The responding officer
investigated and found the report to be true. The two girls had been alone
for two nights and did not know when their mother would return.
The police department had established a clear policy for dealing with such
incidents. The officer was to contact an oncall social worker and turn case
responsibility over to the social welfare department. The officer called.
The social worker, after listening to the officer's account, suggested that
because the upstairs neighbor obviously was concerned about the girls'
welfare, as evidenced by his call, the police officer should ask him to take
the girls into his home for the night. The social worker would come first
thing in the morning to pick up the girls. The officer refused to do this. To
settle the resulting impasse, the officer bundled the two girls into his squad
car, stopped at a McDonald's for food, and took the girls to the police
station where they spent the night. By doing this, the officer broke
departmental policy by not transferring the case to the social welfare
department and departmental rules by transporting the girls in his
squad car.
In reviewing the case with the officer, it was clear that he put a set of
values about children, strangers, and the protection of children above
departmental policies and rules. (When I first asked the officer why he
acted as he did, he said, simply, "Well, it was just common sense.")
Happily, to the officer's knowledge, everything turned out satisfactorily.
Nobody reviewed the matter with him, and the children were picked up by
social welfare workers the next morning.
In my conversation with the officer, I played out two alternative scenarios.
In one, the officer's car was hit by a drunken driver while he was
transporting the children, injuring them. I asked the officer what
authorized him to use his discretion as he had; in other words, how would
he defend himself if charged with violating policy and breaking rules? The
officer knew of no basis in guidelines, policies, or traditions in the
department that he could use to justify his actions. In fact, he firmly
believed that the department would discipline him if the scenario I had
spelled out had occurred.
In the second scenario, an officer comes to the scene, observes the same
conditions, but follows the welfare worker's suggestion. The girls are
molested by the man. The officer believed that while he would have been
disciplined for violating departmental guidelines and rules if he
transported the children and his cruiser was hit by a drunk driver, the
fictitious officer who left the girls with the upstairs neighbor would not
have been. Why? The officer who placed the children with the man had
observed the rules and despite the tragedy could not be held responsible.
He, the real officer, had broken rules and would be held accountable if the
children had been injured. (It is by no means certain that the officer would
have been disciplined by the department.)
Nevertheless, the importance of putting forward values in policy
guidelines becomes apparent. The officer had strong personal and
professional values about protecting young children from victimization
that he held above specific policies and rules. One simply does not put
young children into the hands of strangers except in the most dire
circumstances, no matter what policy dictates. The officer who cared
enough to think through the situation and use his discretion was clearly in
need of prior authorization to do this as well as support in case the
children were accidentally injured. The officer in the scenario, however,
who obeyed the policies and rules, did so unthinkingly and uncaringly and
put the children at serious risk. The message is, of course, that following
the rules ought to be no protection from charges of incompetence and
discipline when clear guidelines mandate the values that should undergird
police actions.
In another example, Madison, Wisconsin, Police Officer (now Sergeant)
Joe Balles recounts how he used his discretion and violated a court order
that barred a father from access to his child. The father, known to Officer
Balles, was involved in a custody dispute with the mother of the child. The
father called Balles directly late one night to report that the mother was
seriously drunk and unable to tend to the child. Balles tried but was unable
to find suitable care for the infant for the remainder of the night. Based on
his familiarity with the father, the mother's condition, and the complete
absence of resources to care for the infant, Balles left the child with the
father for the rest of the night and made arrangements to pick up the baby
the next morning. Balles knowingly acted against the court order. As in
the first case, contextual exigencies made the officer's responses entirely
reasonable. Happily, the father turned the child over to authorities in the
morning.
Policy guidelines can ferret out officers who follow the rules but
underperform and avoid responsibility as well as identify officers who
break rules to protect important values or achieve departmental goals. As
noted above about values, guidelines can put forward positive expectations
about officer performance and set achievement standards.
Receiving Recognition as an Ongoing Process
Policy development is ongoing. It is a repetitive, never-ending aspect of
police work. Just as the students in Dayton changed every year, requiring
the development of a new contract between police, students, and
neighborhood residents, so the composition of every neighborhood
constantly changes. Changing conditions, laws, traditions, and standards
require continual updating of police guidelines.
Notes
1. Kelling, George L., and Catherine M. Coles, Fixing Broken Windows:
Restoring Order and Reducing Crime in Our Communities, New York:
Free Press, 1996, especially Chapter 4, "Taking Back the Subway: New
York City's Quality of Life Program": 108-156.
2. Ibid.
3. This list is a variation of one first presented in Fixing Broken Windows.
The variations from the first list testify to the evolving nature of my
thinking.
4. Because complexity is the most complicated element in policymaking,
this section will be considerably longer than any that follow.
5. This issue is discussed in considerable detail, including legal details,
throughout Kelling and Coles, Fixing Broken Windows.
6. Bayley, David H., and Egon Bittner, "Learning the Skills of Policing,"
Law and Contemporary Problems 47 (4) (Autumn 1984): 35-59; and
Bayley, David H., "The Tactical Choices of Patrol Officers," Journal of
Criminal Justice 14 (1986): 329-348.
7. Bayley, David H., "The Tactical Choices of Patrol Officers," Journal of
Criminal Justice 14 (1986): 329.
8. Bayley, David H., and Egon Bittner, "Learning the Skills of Policing,"
Law and Contemporary Problems 47 (4) (1984): 36-37.
9. For a discussion of such values, see Moore, Mark H., Creating Public
Value: Strategic Management in Government, Cambridge, MA: Harvard
University Press, 1995.
10. A friend described an incident he had seen recently. He had observed a
person approach a police officer in a subway car to complain about a
disheveled man who literally reeked. The person had asked the officer to
eject the disheveled man. The officer patiently explained that, although he
understood the man smelled bad, this was not a basis for ejecting him from
the subway. The disheveled man was obeying the rules and, therefore, had
a right to use the subway. The officer quietly did something very
important: he not only defended the man's right to be there but also
encouraged the complaining person to be more tolerant.
11. San Diego Police Department, Field Operations, Department
Procedure 6.18, December 20, 1987.
-------------------------------
Conclusion
One of the lessons learned over the past three decades, a lesson
incorporated into community policing, is that in a democratic society
effective policing can be achieved only with community support and
involvement. Sir Robert Peel understood this when he sent bobbies into
the toughest areas of 19th century London with a mandate to persuade
people to behave. Police demeanor was such that officers gained the
sympathy and support of the population. We still have much to learn from
this, especially since policing teeters near the edge of militarism in so
many locations as part of the "war" on drugs and drug dealers. Viewing
the police, as the late Frank Remington and others have done, as an
administrative agency obliged to develop guidelines publicly that will
shape its inevitable use of discretion offers one more way to develop
community support and involvement in policing urban America. This
viewpoint not only will improve the quality of policing but will also
improve public understanding and support of police. But guidelines
development must not be seen as a one-shot deal--write the manual and
send it out. It must be understood to be an integral, ongoing part of
policing. At its essence, developing guidelines is the process of creating a
community consensus about our moral and legal basis for urban life.
-------------------------------
Appendix A
Order Maintenance Training Bulletin 96-1
NEW HAVEN POLICE DIVISION OF TRAINING AND EDUCATION,
NEW HAVEN, CONNECTICUT
I. PURPOSE. The purpose of this training bulletin is to define the order
maintenance policies and procedures of the New Haven Police Department
(Department of Police Service), New Haven, Connecticut.
II. POLICY. It is the policy of the New Haven Police Department to work
with neighborhood residents and others who use public spaces to maintain
order legally, humanely, respectfully and equitably.
Maintaining order is an honorable and historical function of police
departments. Although some critics of police order maintenance activities
have labeled such police activities as harassment, maintaining order on
streets, in parks, and in other public spaces is no more harassment than is
traffic enforcement. Whether citizens are using the street for
transportation, recreation or commerce, it is expected that they will do so
with respect for others' safety, and within the limits established by the
laws of the State of Connecticut and the ordinances of the City of New
Haven.
The purpose of maintaining order is: (a) to prevent crime and reduce
citizen fear; (b) to facilitate public discourse and activities; (c) to create an
atmosphere tolerant of diversity; and (d) to improve and restore the quality
of life in neighborhoods. The problems being referred to as order
maintenance problems include, but are not limited to, abandoned cars,
prostitution, noise, graffiti, public drinking and disorderly conduct such as
aggressive panhandling.
The New Haven Police Department recognizes that its order maintenance
activities are discretionary at all levels of the department, from chief
through all personnel. Discretion, however, does not imply personal
inclination. Discretion is the application of the professional knowledge,
values, and skill of police departments and officers to particular problems
and incidents. The starting point of all professionalism for police,
however, is the law.
Our order maintenance activities will always operate within the law.
Having said this, however, it must also be asserted that while the legality
of our activities is basic, it must be augmented by public support.
Moreover, this support must be constantly renewed. This renewal is an
ongoing process and integral to our relationship with citizens through
Management Teams, community organizations, neighborhood and
commercial associations, schools, churches, synagogues and other
organizations.
Because order maintenance is, and has been, a central function of police, it
is expected that police will routinely maintain orderly conditions
throughout the city and, more specifically, in the geographical areas for
which they are responsible. While specific neighborhoods may develop
priorities (for example, put heavy emphasis on the behavior of prostitutes),
police will address all order maintenance problems in all neighborhoods.
This is no different than dealing with serious crimes: the fact that burglary
may be a neighborhood priority does not mean that officers will ignore
armed robbery or assault.
III. THE LAW (Sources of Authority). Generally, the legal basis for order
maintenance is found in breach of peace, public disturbance, disorderly
conduct, obstructing, harassment, intoxication by alcohol and/or drugs,
criminal mischief, public indecency and loitering in or about school
grounds.
IV. PHILOSOPHY of ORDER MAINTENANCE PRACTICES. The New
Haven Police Department will always use the least forceful means possible
to achieve its purposes. While we will not hesitate to cite or arrest
offenders, our approach, at all levels of the organization, will be to attempt
to get citizens to obey laws and ordinances as unintrusively as possible.
The first level of intervention, whether by managers, supervisors, or by
police officers, will be to educate the public about civility, the
consequences of incivility, and the laws that oblige citizens to behave in
particular ways. This can be done in neighborhood meetings, in schools, or
in interactions with citizens. Some citizens do not fully understand their
obligations, and if those obligations--for example, regarding a noisy car or
public drinking in parks--are patiently explained, they will adhere to the
law.
The second level of intervention will be to remind citizens of their
responsibilities if they are disorderly--that is, that they are breaking the
law and subject to penalties if they persist. This too can be done in a
variety of ways. It could be done by visiting a problem location and
warning people that if their behavior continues they will be subject to
penalties. Similarly, owners of locations that are chronic problems could
be so warned by individual officers.
The final level of intervention will be law enforcement--the use of citation
and arrest.
Having said that the least intrusive means of intervention will always be
used should not be read to mean that in every incident police must start
with education. Since police deal with incidents that have histories (for
example, with problems), it may well be that in a particular incident the
offenders might have a history of outrageous behavior which warrants
forceful action at the outset of the encounter (for example, warning or
citation).
V. CRITERIA for the EXERCISE of POLICE DISCRETION. Managers,
supervisors, and officers, as well as Management Teams, will use at least
the following five factors to determine the level of intervention to be used.
While articulating them here might seem extraordinarily formal, police
officers traditionally have used these criteria daily as they make decisions
on the street. We are simply making explicit here what has been implicit in
the past.
a. Time: Disorder has important chronological aspects. We acknowledge
this culturally through the creation of holidays (the Fourth of July, the
Freddy Fixer Parade, Gay Pride Day, St. Patrick's Day, for example) and
other periods when we are more tolerant of behavior and entertainment
(for example, Friday and Saturday nights, New Year's Eve.)
b. Location: Different neighborhoods have different thresholds for
various kinds of activities. Certainly, one can be more tolerant of noise
levels in downtown New Haven than in residential areas. Some forms of
disorderly behavior are absolutely inappropriate around schools (public
urination by adults, for example) and would be the basis not for education
or warning, but for strong legal condemnation.
c. Condition of the Offender: Here we would be concerned about
whether a person is intoxicated or under the influence of drugs, or
behaving in a variety of inappropriate or disturbed ways. Illness, and
behavior associated with illness, would be another variable affecting
police response (seizures and post-seizure responses, for example).
Obviously, we are not talking about matters of social class, race,
homelessness, etc., when we refer to the condition of the offender. The
focus is behavior. Likewise, we would be less concerned about a person
who urinated publicly if the person attempted to find a solitary location
and maintain a sense of modesty than someone who flagrantly exposed
him or herself in a highly visible location.
d. Condition of the Victim/Witness: Clearly, we would be more
concerned about aggressive panhandling, for example, which targeted
vulnerable persons--children, the elderly, people with disabilities--than we
would about similar approaches to sturdy youths. Similarly, as a matter of
policy, we would always be more concerned about the impact of forms of
disorderly behavior on children.
e. Numbers, Volume, or Aggregation: One panhandler is one type of
problem, ten panhandlers is another. Similarly, virtually every form of
disorder has quite different meanings dependent on the number and
concentration of people committing the act(s).
These factors, and others, will be primary in the determination of police
response to disorder whether on a departmental, substation, or individual
officer level. New Haven police officers are expected to use their
discretion wisely and proudly.
VI. PROCEDURES and PROBLEM-SOLVING. The vast majority of
order maintenance activities will be conducted informally by officers who
encounter disorderly behavior on the street. Most often citizens will be
educated or warned. Occasionally, especially when education or warning
is ignored or when behavior is unusually outrageous, arrests will be made.
The basis of all such law enforcement activities will be probable cause.
Some activities will be more formal, however, especially when
neighborhoods are confronted with intransigent problems that require the
coordinated efforts of neighborhood police, the community, citizens and,
at times, special units. When more formal, coordinated, order maintenance
projects are conducted, it is expected that Management Teams, as well as
supervisory personnel, will use a problem-solving approach. This
approach will include:
a. Identification of neighborhood priorities and the ranking of problems
within those priorities;
b. Clear explication of the nature of the problem (problems are not always
what they seem);
c. Consideration of tactical options--including the roles of citizens, other
agencies and institutions --and police (this may vary widely depending
upon resources of neighborhoods);
d. The legal and moral implications of each tactical option;
e. The expected results of each option;
f. The selection of an option;
g. The identification of early indicators of success and/or failure;
h. A preliminary implementation of the selected option;
i. Monitoring for early indicators of success and/or failure;
j. Full implementation or return to "b" (above) if early indicators are
negative; and
k. Termination of effort (goals obtained).
When formal problem-solving is conducted, brief written records will be
kept by the officer, District Manager or Management Team.
See Connecticut Law Enforcement Officers' Field Manual (Red Book) for
specifics.
Effective date 1 January 1996.
-------------------------------
Appendix B
San Diego Police Department Policy Statement
ALL PERSONNEL
UNDOCUMENTED PERSONS
FIELD OPERATIONS
D.P.6.18 12/20/87 3.8
I. BACKGROUND
This Department Procedure is intended to clarify the Police Department's
policy with respect to the handling of undocumented persons.
The San Diego Police Department recognizes and values the diversity of
the community it serves. The purpose of this policy is to ensure the safety
and well being of all persons, regardless of their immigration status. The
primary responsibility for the enforcement of Federal immigration laws
rests with the Immigration and Naturalization Service and the U.S. Border
Patrol. Although State and local peace officers have the authority to assist
in enforcing immigration laws, it is the policy of the San Diego Police
Department that officers shall not make an effort to look for violations of
immigration laws.
San Diego Police personnel will focus on detecting and apprehending
individuals involved in criminal activity.
II. ADULT UNDOCUMENTED PERSONS
A. San Diego Police officers are responsible for the enforcement of all
laws, Federal, State and local, and the safety and protection of all persons.
Therefore, officers have a duty to contact any person(s) when there is a
reasonable suspicion to believe they are involved in criminal activity.
(Refer to SDPD Procedure 4.1.)
B. If upon investigation "probable cause" to arrest exists, unrelated to the
person's immigration status, officers may arrest for the offense.
1. If the subject is booked in the City or County jail and determined to be
illegally in the United States, a hold for INS/Border Patrol shall be placed
on the prisoner.
a. Immigration documents identified as evidence in a criminal
investigation will be impounded per Department Procedure 3.2.
b. See Health and Safety Code section 11369 for notification
requirements when the arrest is drug related and the person is suspected to
be undocumented.
C. Officers are authorized to release subject(s) to INS/Border Patrol if
there is no "Probable Cause" to arrest but there is "Reasonable Suspicion"
that criminal activity unrelated to immigration status still exists. After
investigation determines the detainee(s) is/are in violation of 8 United
States Code Section 1304(e) officers are authorized to notify INS/Border
Patrol and release the detainee(s) at the scene of contact, within a
reasonable time. ("Reasonable suspicion" defined in Department
Procedure 4.1.)
1. The duration of the stop or detention prior to the detainee's release to
INS/Border Patrol shall be in accordance with Department Procedure 4.1,
paragraph 4a, which provides as follows:
A person stopped pursuant to this procedure may be detained at or near
the scene of the stop --for a reasonable time. Officers should detain a
person only for the length of time necessary to obtain or verify the
person's presence or conduct, or an account of the offense, or otherwise
determine if the person should be arrested or released.
Such factors as remoteness and safety considerations for the person(s)
detained may extend the reasonable time of detention prior to INS/Border
Patrol release. However, such detentions should ordinarily be no longer
than twenty (20) minutes.
2. Officers are generally prohibited from transporting detained
undocumented persons to a police facility for the sole purpose of releasing
them to INS/Border Patrol.
3. Undocumented persons may be transported if they voluntarily consent
in order to complete or further an investigation.
D. After investigation if it is determined the person(s) is/are not involved
in criminal activity unrelated to immigration status, the person should be
released, regardless of immigration status.
III. EXCEPTIONS
A. Certain criminal situations, because of their inherent danger to
citizens of the United States and undocumented persons as well, require
immediate action by San Diego Officers. Officers are authorized to detain
and release undocumented persons to INS/Border Patrol when contacted
under the following conditions:
1. Drop House--a house or building being utilized as a transfer/holding
facility for persons engaged in smuggling undocumented persons.
2. Load Vehicles--vehicles engaged in smuggling undocumented persons.
3. Drug House--house or building being used to facilitate narcotics
trafficking.
IV. SITUATIONS WHERE BORDER PATROL INVOLVEMENT IS
PROHIBITED
A. Officers are prohibited from releasing undocumented persons to
INS/Border Patrol under the following conditions:
1. They are victims or witnesses of a crime, unless a determination has
been made by investigators to hold them as material witnesses.
2. When contacted during family disturbances.
3. Generally, during the enforcement of minor traffic offenses
(interactions and nonbookable misdemeanors).
4. When the person(s) are seeking medical treatment.
V. MIGRANT CAMPS
A. The majority of residents living in migrant camps work in the
surrounding area and are in this country legally. Officers are generally
prohibited from detaining undocumented persons in this setting for
INS/Border Patrol unless there is probable cause to arrest for a crime not
related to immigration violations. If probable cause to arrest exists,
officers will follow the procedures laid out in this policy.
VI. DOCUMENTATION OF DETENTIONS
A. All undocumented persons who are arrested will be booked or cited
and appropriate reports prepared. When undocumented persons are
detained and released to INS/Border Patrol, officers will prepare a
detention report in every case.
1. Detention reports involving undocumented persons must list in detail
the reasons for the detention, including all facts that led to the "reasonable
suspicion" that the subject was involved in criminal activity unrelated to
immigration status.
2. In the event officers locate a drop house, load car or drug house
containing multiple undocumented persons, they will document the event
by preparing an ARJIS-8 on each subject and an ARJIS-9 detailing the
circumstances of detention.
3. The name(s) and identification number(s) of the agent(s) who take
custody of the detainees will be included in the appropriate
(ARJIS-8/ARJIS-9) report(s).
VII. ASSISTANCE TO LAW ENFORCEMENT AGENCIES
A. Officers are directed to provide necessary assistance to all law
enforcement agencies including the United States Border Patrol when
requested to do so.
B. An emergency statute, California Government Code Section
55069.75, taking affect on October 4, 1993, was enacted to guarantee
"continued federal support for local enforcement activities." It provides as
follows:
". . . no local law shall prohibit a peace officer or custodial officer from
identifying and reporting to the United States Immigration and
Naturalization Service any person, pursuant to federal law or regulation, to
whom both of the following apply:
(a) The person was arrested and booked, based upon the arresting
officer's probable cause to believe that the person arrested had committed
a felony.
(b) After the arrest and booking in subdivision (a), the officer reasonably
suspects that the person arrested has violated the civil provisions of the
Federal immigration laws."
VIII. UNDOCUMENTED JUVENILES
A. 300 W&I Dependent Children
1. Under 13 years of age
Children in this category will be transported to Hillcrest Receiving
Home if a parent or guardian cannot be contacted. Hillcrest will determine
the status and disposition of the child.
2. Thirteen years of age or older
If the juvenile's parent or guardian can be located, the juvenile will be
released to them regardless of the family's immigration status.
3. If the juvenile's parent or guardian cannot be contacted, the juvenile
will be released to Border Patrol. Transportation to an INS/U.S. Border
Patrol facility is authorized for this purpose.
4. An ARJIS-9 report will be submitted detailing the circumstances of
the detention and the disposition of the juvenile.
B. 601 W&I Status Offenses (i.e., curfew, truants and runaways)
1. Under 13 years of age
If the parents reside in a foreign country, the juvenile will be transported
to Hillcrest Receiving Home.
2. Thirteen years of age or older
It is incumbent upon the Police Department to return juveniles without
parental supervision to their parents, guardians or school officials. If the
parents or guardians are in the United States and can be contacted, the
juvenile will be released to them.
If the juvenile's parent or guardian cannot be contacted, the juvenile will
be released to Border Patrol. Officers are authorized to transport the
juvenile when Border Patrol is unable to respond or there would be an
excessive time delay.
3. A juvenile contact report (ARJIS-8) will be completed detailing the
circumstances of the detention.
C. 602 W&I Minor Offenses
1. Under 13 years of age
If the parent or guardian cannot be contacted, a court order is required
before Juvenile Hall will accept them. In these cases, personnel at Juvenile
Hall will be responsible for obtaining the court order. Officers will stand
by until a disposition is reached by Juvenile Hall.
In cases where a court order is not issued, the arresting officer should
contact the Division's Juvenile Detective (day or night). The Juvenile
Detective, with the assistance of the Juvenile District Attorney, will
coordinate the placement of the juvenile in Juvenile Hall or Hillcrest
Receiving Home.
2. Thirteen years of age or older
If a juvenile is arrested and the parents or guardian cannot be contacted,
the juvenile will be placed in Juvenile Hall.
3. A Juvenile Contact Report (ARJIS-8) will be completed detailing the
circumstances of the arrest.
D. 602 W&I Serious Offenses
1. Juveniles arrested for serious and/or violent crimes shall be placed in
Juvenile Hall.
2. Officers shall photograph and fingerprint the juvenile taken into
custody. The photograph and fingerprints should be attached to the
investigator's copy of the juvenile contact report.
3. All arrests of undocumented juveniles shall be documented on a
juvenile contact report (ARJIS-8).
-------------------------------
How New Haven Developed Guidelines
New Haven's policy guidelines embody important principles described in
this report. The guidelines focused on problems of disorder and were
developed with officers and sergeants at the request of then Chief Nick
Pastore.
The guidelines have been distributed as a training bulletin in the New
Haven Department of Police Service. (See Appendix A, "Order
Maintenance Training Bulletin 96-1.") The bulletin was prepared as a city-
and departmentwide document, rather than as a location-specific
document. Consequently, it invites and outlines a problem-solving method
to deal with location- or other problem-specific issues as they may occur
in neighborhoods.
Of course, the value of guidelines depends on the skill of management in
linking them to ongoing police practice and administrative and supervisory
procedures. Moreover, the examples of guidelines included in this report
are clearly not as good as they could be--none were developed as part of a
special "project" to develop guidelines. Likewise, the 11 points articulated
elsewhere in this report are no doubt preliminary and inadequate. The art
of developing guidelines has yet to be defined and will emerge only over
time. Yet, guidelines are essential to the development of police
accountability and professionalism.
-------------------------------
Democracy, Policing, and Discretion
Although police discretion cannot be structured by simply proscribing
certain actions or issuing policy statements, departments that fail to
develop clear policy guidelines about complex issues face several serious
concerns:
--Cutting moral, legal, and constitutional corners, regardless of the
high-minded purposes for doing so, creates and perpetuates the morally
ambiguous nature of police work in its literal sense--that which line police
officers do.[a] One of the primary consequences of such moral ambiguity
is an isolated police culture and its "blue curtain."
--Regardless of the skill and grace of officers in "doing what has to be
done," cutting corners sends improper messages to citizens about how
problems should be solved. Both those involved with officers in the quid
pro quo and those who demand that police "do what has to be
done"--whether citizens or politicians--are given a terrible and dangerous
message about policing a democratic society.
--When failing to wrestle with the complex moral and legal issues of
social policies, departments risk litigation, the outcome of which can
seriously jeopardize current and future departmental efforts to deal with
serious problems. The U.S. Supreme Court's inquiry into criminal
investigation was the result of poor police practices and, more important in
this context, management's failure to rein in and control detectives. In
fact, police departments and cities throughout the United States are
currently under serious legal assault from organizations such as the New
York and American Civil Liberties Unions and other libertarian and
advocacy groups.[b]
--Most problems can be solved, or at least managed, once they are
properly understood and a range of alternative solutions has been
explored. Perhaps the best example is graffiti in New York City's subway
system. Once thought insoluble, the problem yielded to creative and
thorough work. This does not mean it was completely eradicated--New
York's graffiti artists are a dedicated lot--but it is a problem that, with
vigilant maintenance of subway cars, can be managed and kept to a
minimum.
Notes
a. Bittner, Egon, Aspects of Police Work, Boston: Northeastern University
Press, 1990: 4. Also see Kelling, George L., "How to Run a Police
Department," City Journal 5 (4) (Autumn 1995): 34-45.
b. Kelling, George L., and Catherine M. Coles, Fixing Broken Windows:
Restoring Order and Reducing Crime in Our Communities, New York:
Free Press, 1996: 38-69.
-------------------------------
Dayton, Ohio, Issues Guidelines Related to Student and Nonstudent
Residents
The police general order read as follows:
The Department of Police has as one of its primary responsibilities the
development and maintenance of peaceable relations between citizens.
Police officers are expected to act in an appropriate and effective manner
so as to maintain a standard of public order which is generally acceptable
to the lifestyles of both the student and non-student residents of the area in
the vicinity of the University.
It should be recognized that divergent lifestyles frequently generate
conflict which is not conducive to the well-being of either students or
nonstudents, and that compromises must be made by all concerned. Other
communities have attempted to deal with this campus-community
situation by general suppression through use of police power. The record
seems to indicate that this response has not resolved the problems but,
rather, increased the polarization of the parties.
I believe that we should seek to develop a police response to the
problems which will permit an evolutionary and improving relationship
based on respect and a concern by all for the mutual welfare of the
community. Such a police posture can only be justified, however, if the
situation shows improvement.
The following problems were identified by student and non-student
residents meeting with police personnel as being matters of legitimate
police concern.
Fires. The residents have indicated that they believe fires should not be
permitted in the streets as they constitute a serious threat to life and
property. Residents expect police crews to act appropriately to prevent the
lighting of fires and to put out existing fires.
Loud Noise After Midnight. The residents have indicated that it is
reasonable to expect that loud noises should cease after midnight. Both
students and non-students believe this compromise to be fair and
acceptable. I expect police crews to act so as to protect the rights of
persons to peace and quiet in their residences after midnight.
Traffic Blockages. The residents recognize that large numbers of
students in attendance at parties may require the temporary use of the
streets. It is important, however, that vehicles be permitted to pass through
these crowds so that residents can gain access to their property and so
emergency vehicles can pass. Police crews are expected to ensure vehicles
are not being blocked unless barricades have been erected in accordance
with our block party procedures.
It should be emphasized that the burden for complying with the
standards discussed in this memo should be on the residents, both student
and non-student. The problem is unlikely to be resolved by police force;
however, in the event we need to respond to situations such as those
discussed above, we will act to implement the identified standard as the
situation requires.
We are committed to persuasion as the primary method of dealing with
these problems because it is constructive, and not destructive as is the
confrontational approach. Conflict management personnel are to be called
up to assist whenever it is felt they can be of aid to the crew.
The Second District Sergeants and beat crews are encouraged to confer
with residents, Project South (telephone number), and the University
Student Government so as to make use of their services in dealing with
problems in a "non-police" fashion to the greatest extent possible.
The officers are to feel free to consult with the Conflict Management
Director, their superiors, or myself if they have any questions about this
policy. It is the responsibility of the Supervisors to assure all officers have
read and understand this order and respond accordingly.
Director of Police
-------------------------------
Police Must Put Behavior in Context
Virtually any specific behavior gains meaning by the context in which it
occurs. Most police officers intuitively understand this and make their
decisions about whether and how to intervene on their assessment of an
act, or series of acts, within a context. Thus, for example, as part of a
problem-solving exercise dealing with squeegee men, I spent time with a
New York City neighborhood foot patrol officer who was perhaps as
assertive in dealing with the problem as anyone in the NYPD. One night,
because of some publicity after Mayor Rudolph Giuliani's election, the
officer's district commander initiated a crackdown on squeegee men in his
district.
I had come to the district to meet with the officer and to interview some
squeegee men but discovered they were either in jail or had withdrawn
from the streets because the word was out about the crackdown. The
officer asked that we visit a particular intersection, where we came upon
an African-American man, in his 50s or so, with a squeegee and a bucket
of water. The officer called the man by name, and the man walked over to
our car. He greeted the officer by name as well. The officer then advised
him to "get off the streets, there's a crackdown." The officer then
introduced the man to us; we talked for a short time and then exchanged
goodbyes.
I questioned the officer about this exchange because he was known to be
enterprising regarding squeegee men in his neighborhood; here he was
warning such a person about a crackdown. "Joe is no problem," the officer
responded. "He really washes windows. He's courteous; he asks people if
they want their windows washed, backs off if they give any sign that they
don't, and doesn't interfere with traffic. He's a veteran and can't get by on
his pension. I just don't want him to spend a night in jail because the
district commander is upset." For the officer, the context gave meaning to
the event--the location, the reputation of the man, and the man's behavior
when approaching cars shaped how the officer used his discretion. This is
the essence of good order maintenance and peacekeeping.
Skillful order maintenance activities acknowledge that squeegeeing, like
prostitution, panhandling, and drug dealing, will never be eliminated, but
good policing can determine the conditions under which and how such
activities can take place and bring them into line with community
standards. Was the officer taught how to use discretion in this fashion
while he was in the academy? Did he turn to police guidelines about issues
to be considered when deciding when and how to intervene in situations?
Most likely he learned about discretion on the streets from colleagues and,
if lucky, from supervisors as well as from his own experiences.
-------------------------------
Prescribing What Officers May Not Do
Discretion is limited. Officers and departments cannot do particular things.
Officers may use discretion in deciding whether and how to intervene in a
panhandling incident, but they may not intervene on the basis of race.
Officers may use their discretion to allow youths to stay in a park after
curfew, but they may not authorize public or underage drinking (they may
know that some of it goes on and be less than vigilant about catching it,
but they cannot authorize it). Officers may work with neighborhood
groups to control access to a neighborhood, but they must not discriminate
against ethnic groups in the process.
In virtually every policy area, there are clear limits that must be prescribed
to police officers, citizens, and vested interest groups. Including such
limits in policy statements can make values explicit, remind officers that
the exercise of judgment and choice is circumscribed, help them to say
"no" to inappropriate demands from citizens or interest groups, and
provide wide administrative authority to discipline unethical and
inappropriate use of discretion.
-------------------------------
For more information on the National Institute of Justice, please contact:
National Criminal Justice Reference Service
P.O. Box 6000
Rockville, MD 20849-6000
800-851-3420
e-mail: askncjrs@ncjrs.org
To access the World Wide Web site, go to
http://www.ncjrs.org
If you have any questions, call or e-mail NCJRS.
-------------------------------
About the National Institute of Justice
The National Institute of Justice (NIJ), a component of the Office of
Justice Programs, is the research agency of the U.S. Department of Justice.
Created by the Omnibus Crime Control and Safe Streets Act of 1968, as
amended, NIJ is authorized to support research, evaluation, and
demonstration programs, development of technology, and both national
and international information dissemination. Specific mandates of the Act
direct NIJ to:
--Sponsor special projects, and research and development programs, that
will improve and strengthen the criminal justice system and reduce or
prevent crime.
--Conduct national demonstration projects that employ innovative or
promising approaches for improving criminal justice.
--Develop new technologies to fight crime and improve criminal justice.
--Evaluate the effectiveness of criminal justice programs and identify
programs that promise to be successful if continued or repeated.
--Recommend actions that can be taken by Federal, State, and local
governments as well as by private organizations to improve criminal
justice.
--Carry out research on criminal behavior.
--Develop new methods of crime prevention and reduction of crime and
delinquency.
In recent years, NIJ has greatly expanded its initiatives, the result of the
Violent Crime Control and Law Enforcement Act of 1994 (the Crime
Act), partnerships with other Federal agencies and private foundations,
advances in technology, and a new international focus. Some examples of
these new initiatives:
--New research and evaluation are exploring key issues in community
policing, violence against women, sentencing reforms, and specialized
courts such as drug courts.
--Dual-use technologies are being developed to support national defense
and local law enforcement needs.
--The causes, treatment, and prevention of violence against women and
violence within the family are being investigated in cooperation with
several agencies of the U.S. Department of Health and Human Services.
--NIJ's links with the international community are being strengthened
through membership in the United Nations network of criminological
institutes; participation in developing the U.N. Criminal Justice
Information Network; initiation of UNOJUST (U.N. Online Justice
Clearinghouse), which electronically links the institutes to the U.N.
network; and establishment of an NIJ International Center.
--The NIJ-administered criminal justice information clearinghouse, the
world's largest, has improved its online capability.
--The Institute's Drug Use Forecasting (DUF) program has been
expanded and enhanced. Renamed ADAM (Arrestee Drug Abuse
Monitoring), the program will increase the number of drug-testing sites,
and its role as a "platform" for studying drug-related crime will grow.
--NIJ's new Crime Mapping Research Center will provide training in
computer mapping technology, collect and archive geocoded crime data,
and develop analytic software.
--The Institute's program of intramural research has been expanded and
enhanced.
The Institute Director, who is appointed by the President and confirmed by
the Senate, establishes the Institute's objectives, guided by the priorities of
the Office of Justice Programs, the Department of Justice, and the needs of
the criminal justice field. The Institute actively solicits the views of
criminal justice professionals and researchers in the continuing search for
answers that inform public policymaking in crime and justice.
-------------------------------
NCJ 178259