The Effects Of Administrative Law On Policing Criminology Essay

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In the early 20th century, Peel and other reformers were widely praised for their efforts to "de-politicize" the police officer's role. Police departments and their officers, who had previously served as little more than the agents of the political machines of their respective municipalities, were recast as "public servants" who administered the policies and laws on public order. In the 1960s, widespread urban rioting and civil unrest led to the abandonment of what had come to be known as the "reform model" of police administration and to the adoption of what eventually was called the new "professional model" of policing - a model which was to emphasize law enforcement over order maintenance (McDowell, 1993).

By the end of the 1980s, the newly developed "professional model" of policing was already receiving widespread criticism for the degree to which it served to insulate police officers from the public whom they theoretically were supposed to serve (Reiss, 1992). Scholars such as Herman Goldstein (1990) argued that the professional model was utterly bankrupt, that previous efforts to bridge the gap between police and the public through methods such as "team policing" and "neighborhood watch" groups had been ineffective, and that a new model of the police role was needed. While Goldstein and other scholars' criticism of the existing police model focused on the lack of efficiency in police services and the isolation of the police from the community which it served, a growing public critique focused on the lack of fairness in the existing model. In 1991, Rodney King's beating at the hands of several LAPD officers and the subsequent Los Angeles riots after the officers' acquittal in 1992 focused national attention on the apparent dissonance between the role and duty of the police officer and the interests of his or her public (Dins et al., 1998). A few years later, in New York, the brutalization of Abner Louima and the killing of Amadou Diallo by NYPD further illustrated the problems with the police role in the public sector (Harring and Ray, 1999). Also, the uncovering of a huge corruption scandal in the LAPD (Ramparts division) and continuous charges of police corruption and/or brutality in various departments across the country have continued to keep the issue of the appropriate role of the police institution in the public consciousness (Wood, 1999).

How can the police officer's role be defined today? Beyond the technical description of the police officer's role, how should the police officer's role be defined in today's society? Is the police officer's role most properly viewed as that of a public administrator? Or should the role of the police officer be defined as that of a community leader? Or, alternatively, as another role? This paper renders an analysis of the police officer's role from an administrative law perspective. The first part provides a concise definition and summary of the concept of administrative law and how it applies in relation to the correct role of law enforcement. The paper also analyzes how the role of the police officer has changed over time, shifting from the "professional model" to focusing on more strategic approaches such as, problem-oriented and community-policing. A summary of the findings and the role police officers may play in the future will provide the conclusion of this paper.

In the United States, municipal police departments are public agencies which engage in the public administration of justice and thus can be viewed as engaging in the public administration of justice as a public good. While there is no uniform definition of "administrative law" to be found in the legal or public administration literature, a common view would be that administrative law serves as the legal framework within which public administration is carried out. Administrative law aims at ensuring efficient, economic, and just administration.

The scope and application of administration is arguably least clear when applied to police officers and other so-called "street level bureaucrats" because it is at this level of public administration that the classical dichotomy between politics and administration is at its sharpest. A term, originally coined in 1980 by Lipsky, the "street level bureaucrat" is the public service worker who serve, as Maynard-Moody (2000) notes, "at the boundary between citizen and state" (p.330). The jobs of street level bureaucrats have a number of unique characteristics when compared to those of higher-level bureaucrats. Among these characteristics are the following:

Constantly interact with members of the public in face-to-face encounters; Have considerable independence... Are in a position to have a great impact on the individuals on whom they act (or choose not to act on); Tend to interact with 'clients' who would prefer not to have to go through the encounter... Work with heavy caseloads in an environment of scarce resources and, sometimes, one in which physical and psychological threats are common... Have limited control over their 'involuntary' clients... Face difficulties in adequately measuring their performance. (Rosenbloom and O'Leary, 1997, p. 152)

There are numerous types of street level bureaucrats, including public school teachers, child welfare workers, social service workers, and even (in many jurisdictions) street cleaners. However, few public workers fit the description of "street level bureaucrat" as aptly as the police officer, whom many researchers, like Rosenbloom and O'Leary, deem to be the prototypical street level bureaucrat.

Perhaps the signal characteristic of the street-level bureaucrat, and the characteristic which creates a dilemma for public administration and administrative law, is the level of discretion enjoyed by street-level workers in the daily exercise of their duties. Such operational discretion exists despite the fact that the activities of the street level bureaucrat are on the surface constrained by the burdens of bureaucratic hierarchy, proscriptive administrative statutes, and (frequently) the extensive stipulation of policies and procedures. As Maynard-Moody (2000) points out:

These street-level workers have the least formal authority. Nonetheless they have considerable discretion not only about which laws, rules, or procedures are applied or enforced but also about the nature and quality of the services delivered... Thus, one fundamental characteristics of street-level work is that front-line state agents are bound by a long tether or hierarchical relationships, yet discretion permeates every decision and every action. There is some variation - teachers are subject to fewer rules than are police officers - but from the number of coffee breaks to the types of services provided to the manner in which an arrest is executed, nearly every aspect of street-level work is defined by rules and procedures... Street level work is, ironically, rule-saturated but not rule-bound. (p. 334)

Street level bureaucrats' exercise of discretion is often viewed as problematical. Despite the extant range of external checks on police officer discretion, it should be noted that most analysts agree that a high level of discretion among police officers and other street level bureaucrats must be viewed as inevitable. Maynard-Moody (2000) argues that discretion among street level bureaucrats is inevitable because of weak links between workers and their supervisors and the consequential limited reach of rules. Moreover, the links between street level bureaucrats and their supervisors are constantly weakened by the fact that police and other street-level bureaucrats have high levels of face-to-face contact with citizens. In addition to these intrinsic or internal features of police work and other street level bureaucracies limiting the capacity for checks on discretion, there are also inherent limitations in the effectiveness of external checks.

In the immediate aftermath of the 1968 passage of the Omnibus Crime Act and the widespread concern about the "insularity" of police services as they had evolved over the preceding few decades, some efforts were made to implement an early model of "community policing". In 1967, the President's Commission on Law Enforcement and Administration of Justice had recommended the use of "team policing" in the neighborhoods as a way of bridging the perceived gap between the beat officer and the citizens. Unfortunately, the early experiments with community policing (implementation of neighborhood watch programs, stand-alone police-community programs targeting specific issues, reinstitution of foot patrols, etc.) did not meet with much success. Analysts cited problems in the structure of the programs (in particular, their stand-alone character) and police management resistance to the decentralization required in community policing (Maynard-Moody, 2000).

Researchers, like Goldstein and McDowell, suggest that early efforts at implementing a model of community policing may have failed at least in part because of the strength of the professional model of policing. Developed during the reform era, but carried over well into the post-reform era and arguably strengthened by the educational imperatives of the 1968 Crime Control Act, the professional model reflected "a continuing preoccupation with means over ends; with operating methods, process, and efficiency over effectiveness in dealing with substantive problems; with the running of the organization rather than the impact of the organization on community problems that the police are expected to handle"(Goldstein, 1990, p. 15). According to McDowell (1993), the professional model of policing embraces a range of values which are, on the whole, antithetical to community policing and the notion of police and citizens working together to reduce and prevent crime. The values of the professional model include the following:

1) Police authority is based solely in the law...Communities can provide the police with assistance in enforcing the law...Responding to citizen calls for service is the highest police priority...4) Social problems and other neighborhood issues are not the concern of the police unless they threaten the breakdown of public order...5) the police, as the experts in crime control, are the ones best suited to develop police priorities and strategies... (p. 206)

Despite research which suggested the limitations of the professional model, police departments resisted the adoption of new models in the early post-reform era.

Since the introduction of the Bill of Rights into the criminal justice system, the Supreme Court has gradually defined the specific limitations of the police officer's power to intrude on the civil rights of citizens. By most accounts, the Court has been fairly generous in its interpretation of the police officer's right to use discretion. In many cases, these decisions have expanded the scope of officer's power to carry out searches and seizures and random stops. In the case, California v. Greenwood (1988), the Court ruled that police may search an individual's trash without warrant. In a series of cases in the 1960s-1980s, the Court expanded officers' power to conduct various "inventory searches" of both persons (Illinois v Lafayette, 1983) and their vehicles (Harris v U.S, 1968), while simultaneously ruling on individuals' "reduced expectation of privacy" (South Dakota v Opperman, 1976) within their automobile. It was not until the 1990 case of Florida v. Wells that the Court set specific and concrete limits on police officers' right to conduct warrant less "inventory searches". The Court has moved to place limits on police officers' absolute discretion. In both Brown v. Texas (1979) and Kolender v. Lawson (1983), the Court ruled that an officer's "intuition" about a suspect's likely criminal activity involvement was in itself insufficient to justify random stops and request for identification. Likewise, in the 1979 case of Delaware v. Prouse, the Court ruled that an officer's decision to randomly stop an individual on a public highway must be based on an "articulable and reasonable suspicion"(p. 663) and not merely the officer's "intuition" about a possible crime. Notwithstanding these Court-imposed limitations, a number of analysts have argued that the Supreme Court decisions have collectively served to expand police discretion and drive a deeper wedge between the police and the citizenry. As Harring and Ray (1993) argue:

The U.S. Supreme Court, first under chief Justice Warren Burger and later under Chief Justice William H. Rehnquist, has handed down around 100 decisions since the 1970s that encourage aggressive police work, exaggerating the social interest in crime detection while minimizing the human interest in personal integrity and autonomy. The idea that the Fourth, Fifth, and Sixth Amendments protect the civil rights of all Americans has been replaced by the idea that being 'free from crime' is the most basic civil right...(p.75)

In two influential books and several important articles, University of Wisconsin law professor Herman Goldstein was among the first to present a genuinely new model of policing. Goldstein's model, which came to be called "problem-oriented policing" stressed two main themes. The first theme focused on the extraordinary diversity of police work and the large amount of police activity devoted to tasks other than the handling of serious criminal activity. The second theme, and arguably the core of the model, is that law enforcement is one means to solve the great variety of problems with which the police are confronted. Goldstein contended that under the established "professional" model of policing, police routinely dealt with only the most superficial manifestations of a deeper problem. Goldstein called upon officers to begin delving into the real problem(s) manifested by the incident, rather than the incident itself. Goldstein argued that police could use their considerable discretionary powers to address a broad range of problems.

While the term "community policing" was first utilized in the 1970s, in association with team policing and the development of Neighborhood Watch programs, it did not develop as a comprehensive model of policing until the 1980s. The concept of community-oriented policing emphasizes outcomes over process while stressing the need for police accountability to citizen-defined crime reduction needs. Community-oriented policing was developed out of research which demonstrated the degree of the police/community conflict and research which suggested that the public's crime concerns focused not so much on serious crime and/or specific criminal threats (the primary focus of law enforcement) but rather on the physical appearance of crime and safety risks. Their concerns were the social and physical "broken windows" in the neighborhood. Further boosting the move towards the community policing model was George Kelling's seminal research demonstrating the connection between "broken windows" and neighborhood crime rates.

The key concept in community policing is the notion that police and community members can work together, as a cooperative team, to fix the community's "broken windows" and in doing so, address the broader underlying social problems and thus reduce crime and improve community quality of life. According to Kelling & Coles (1996), the fundamental tenets of community policing include the following:

- The first is belief in a broad policing function, embracing more than law enforcement in response to felonies. Police work includes keeping the peace and public order, protecting constitutional liberties, ensuring security, resolving conflicts....

- Community policing also acknowledges the reliance of police on citizens, in multiple senses: for authority to police neighborhoods, for information about the nature of neighborhood problems, and for collaboration in solving problems...

- Community policing recognizes that organizational structures and administrative processes that treat officers like factory workers have failed. Police work, unlike factory work, is not simple and routine, but complex...

- Along the same lines, community policing eschews general tactics, like preventive patrol and rapid response to calls for service, in favor of specific tactics, targeted on particular problems and developed in collaboration with citizens and city, governmental and private sector agencies...

- Because problems are most often local - requiring identification and crafting of responses at this level - authority must be devolved to lower levels of the police organization if the police organization is to be responsive to neighborhood needs...

- Community policing recognizes that police serve multiple aims... (p. 158-160)

The community-oriented policing model departs from the professional model on numerous points, but especially in its (the community model) focus on outcomes versus process, and its reliance on community versus police definitions of community problems. The community policing model also departs from both the professional model and the earlier models of policing in America in its commitment to a three-pronged focus on order maintenance, law enforcement, and service. The early model focused almost exclusively on order maintenance and the professional model stressed a focus on law enforcement to the near exclusion of both order maintenance and service (McDowell, 1993).

In its current incarnations, found across multiple municipal police departments throughout the country, community-oriented policing fully encompasses Goldstein's problem-oriented policing model. Indeed, the new common terminology for community-oriented policing is the "community-oriented policing and problem solving"(Glensor and Peak, 1996, p.14) or COPPS approach. Whether termed "community-oriented policing" or COPPS, there is widespread recognition that the transition from the professional model to the community-oriented model poses significant organizational and leadership challenges to police departments. Certain factors in the organizational culture and management/organization structure of the police department (e.g., a proclivity towards risk aversion, a continued focus on incident-driven, reactive policing, vertical hierarchy, authoritarian top management style, etc.) have emerged as common system barriers to the successful implementation of community-oriented policing (De Paris, 1998).

At the same time, studies of community-oriented policing implementation efforts have highlighted some of the factors which seem to contribute to successful implementation. A review of the literature suggests that the most important factors in successful implementation can be broken into two main categories: 1) shifts in philosophical approach and 2) organizational structure/management style. With regard to the former category, police officers who successfully navigate the transition to community policing have recognized the reality that police more often must deal with citizens' fear of disorder and potential crime than with actual crimes (Glensor and Peak, 1996). Subsumed within this recognition is police officers' acknowledgment that a community's criminal justice problems are best defined by community members, not police. With regard to the second category, organizational structure and management style, studies strongly suggest that community-oriented policing works best under a decentralized police management structure (Crothers and Vincant, 1996). The literature stresses the importance of officer empowerment and use of discretion, as well as, the vital role played by officer communication skills.

In conclusion, police officers are the prototypical "street-level bureaucrat". As such, public administration theory and administrative law has traditionally viewed the police officer (and other street level bureaucrats) as distinct from the diplomats and bureaucrats of public agencies carrying out their administrative work without such constant and direct contact with their citizen-clients. In particular, the "problem of discretion" is held to loom large with street-level bureaucrats such as police officers. Regardless of this problem, the dominant and traditional perspective on the role of police officers holds that they are state agents, "government employees who are charged with carrying out the plans and policies of government agencies"(Maynard-Moody, 2000, p. 337). Maynard-Moody (2000) argues that the state-agent model of the street-level bureaucrat's role has four major tenets. The first is that discretion is inevitable (albeit regrettable) because of the nature of street-level work; the second is that street-level workers' use of discretion is guided by self-interest; the third tenet holds that the street level worker's use of discretion is tantamount to policy-making; and the fourth tenet is that there needs to be external and internal responses (constraints) on the use of street-level discretion.

In his fascinating study, Maynard-Moody (2000) investigated the extent to which the commonly held model of the street-level bureaucrat as a state agent (a model subscribing to the previously described four tenets) correlated with street-level bureaucrats' own vision of their role and work. Put briefly, Maynard-Moody found an enormous disparity between the official view and workers' view of themselves. Based on his interviews with police officers and social workers, Maynard-Moody was able to present a "counter-narrative" or competing model of the street-level bureaucrat as a "citizen-agent" who responded not to the rules and guidelines of laws and policy but rather to the demands of citizen-clients and the workers' own "moral compass". Rather than seeing themselves as agent of the state, street level workers often found themselves at odds with what they defined as "the system" (a.k.a. "the bureaucracy") as they sought to respond to the legitimate demands of clients.

The community-oriented policing literature offers yet another, different role model for the modern police officer. Rather than public administrator/state agent or "citizen agent," the new dialogue on community-oriented policing highlights the potential role of the police officer as "community leader". Crothers and Vinzant (1996) present a model of community-based policing wherein police officers function in the role of "street-level leader". A central premise of the model is the notion that "police officers need to exercise more discretion rather than less" (p. 1170). The anecdotal literature on community-oriented policing likewise stresses the importance of developing the role of the police officer as a "community leader".

The conceptualization of the police officer's role as that of a street-level community leader may provide for a reconciliation of the dilemmas posed by officers' use of discretion and the inevitability of discretion in police work. Moreover, by conceptualizing the police officer as a community leader rather than as a public administrator, we can allow that police officers' role will encompass more than just the narrowly-defined objectives of law enforcement (which can arguably be fairly well constrained and delimitated by administrative law) and extend to the important roles of order maintenance and complex service provision.