COMMENTARY

LAW ENFORCEMENT AND THE RULE OF LAW: IS THERE A TRADEOFF?

DAVID H. BAYLEY State University of New York at Albany

ABSTRACT This essay assesses whether a strong evidence-based argument can be

made to support the proposition that when police violate the rule-of- law they do more harm than good with respect to their collective, as well as personal, interests. The assessment is undertaken to counter the common presumption among police officers that circumstances often justify cutting legal corners in the interests of public safety. The essay first examines what research shows about the ,facilitators of police law breaking. It then examines seven reasons why violating the rule-of-law works against the instrumental interests of the police themselves. After assessing the strength of the evidence against the instrumental benefit of violating the rule-of-law, suggestions are made about research that is needed to make the case more compelling. In conclusion, the essay dis- cusses how empirical knowledge might be most productively used to change the culture of contemporary policing.

KEYWORDS: Police, Civil Liberties, Police Effectiveness, Accountabil-

The public in every society worries about the integrity of its police. Some have better reasons for this than do others. But everywhere, regard- less of the objective incidence of misbehavior, people become easily con- cerned that the police do not abide by the law and misuse their power (Bayley, 1996a). At the same time, it is my experience that the police in every society believe that they must occasionally cut legal corners in order to provide effective protection to that very same public. Among police there is a nearly universal mindset that abiding by the rule-of-law and adhering to recognized standards of human rights is sometimes too restric- tive, preventing victims from obtaining justice, allowing criminals to go unpunished, and placing society at unacceptable risk (Crawshaw, 2000).

This mindset of the police, and the behavior it engenders, shows up in a number of ways. Police complain almost everywhere about the uncertain- ties of criminal justice processing-slipshod prosecutions, inept and venal judges, unwilling witnesses, cumbersome procedures, and laws loaded in

ity, Police Integrity

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favor of suspects. Police are regularly accused, even in countries with human rights records that are good by world standards, of engaging in unjustified stops and seizures (Bayley, 1996a). They have been found to fabricate evidence and testify falsely in order to gain convictions. So com- mon did these practices seem to be in New York City recently that the Mollen Commission coined a new word to describe them-“testilying” (1994). Complaints of excessive use of force ostensibly to control crime are also common around the world, whether to obtain confessions from unwilling suspects or to intimidate would-be criminals (Bayley, 1996a). Intimidation is especially disturbing when it is directed at whole classes of individuals, as when police say that “those people only understand force” or “people like that” have to be taught respect for the law.

Although the public is most concerned about dramatic infringements of the rule-of-law, such as brutality, planting false evidence, and lying in courts, most of the liberties taken by police are more mundane, routinized, and difficult to detect. For example, a Texas police officer told me how he had developed a challenge-proof method for stopping motorists on suspi- cion, without a shred of probable cause. After stopping a car, he would thump the left rear fender with his hand as he walked up to it. If the driver asked why the officer had stopped him, the officer would say that the left rear taillight was not working. If the driver checked for himself, which was unusual. the officer would say that his thump must have restored the con- nection and he would advise the driver, in the interest of safety, to get it checked at a service station. Thus, an illegal stop could be disguised as helpful assistance.

The usual explanation for such behavior is that the police do not under- stand what is right and wrong; that the values of the police need changing to emphasize more scrupulous adherence to law and to human rights (Barker and Carter, 1986; Klockars et al., 2000; Skolnick and Fyfe, 1993). It follows, then, that the solution is to raise the normative consciousness of the police, to convince them that they have a duty both to uphold the rule- of-law and to provide public safety. I think this diagnosis is mistaken. The problem is not normative, but cognitive. The police generally know what behaviors are right and wrong. The problem is that they believe that the violation of law and of human rights is sometimes required for effective law enforcement. For example, a survey undertaken for the US. Depart- ment of Justice found that 43% of 925 officers randomly selected from 121 American police departments thought that “always following the rules is not compatible with getting the job done” (Weisburd et al., 2000). Let it be said, however, that 57.2% disagreed. In other words, many police have concluded, and are willing to admit it to anonymous telephone surveyors, that rigid adherence to the rule-of-law is sometimes contrary to their responsibility to protect communities effectively.

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If my thesis is correct, police must be shown that the costs to them of violating the rule-of-law are greater than are the benefits, that doing right is not only commendable normatively, but also furthers their own collec- tive self-interest (Mastrofski, 1999). Moral exhortation alone is unpersua- sive because it does not address the tradeoffs that police are convinced they face. This explains why, in my experience, lecturing to the police about human rights is met with palpable lack of interest-eyelids droop, note-taking stops, and faces become wooden. The police act as if they know all that, which in many cases is true. The problem is that lectures on human rights are a necessary but not sufficient corrective to the dilemma police officers face. What is needed instead is an evidence-based demon- stration that rectitude is useful to the police in fulfilling their mission of preventing and controlling crime. This sort of argument will get their attention.

Can this be done? Is it possible to demonstrate in a convincing way that the benefits from behaving according to recognized standards of human rights outweigh the costs of not doing so? Can the self-interest of the police be harnessed to the achievement of more scrupulous behavior?

The task of this paper is to explore whether a strong case can be made that the effectiveness of the police will be better served by scrupulous regard for the rule-of-law rather than selective disregard for the rule-of- law. The discussion will be in two parts: first, a discussion of factors that contribute to the disregard for the rule-of-law by police and, second, an examination of the disadvantages to police of disregarding the rule-of-law.

REASONS FOR LAW-BREAKING There are at least seven factors that encourage police officers to violate

the rule-of-law and human rights.

PUBLIC SAFETY

Police are part of the criminal justice system whose explicit purpose is to control crime through deterrence, that is, to catch and punish people who violate the law. Despite slogans about serving and protecting, the essential mission of the police is to control and deter. They are the largest cog in the crime-control machine. Although they may understand, at least in demo- cratic societies, that crime-control must be balanced by due process, their professional interest is loaded heavily in favor of the former (Packer, 1968).

Their occupational attachment to the goal of crime-control through deterrence is given emotional weight by their daily experience with the suffering of crime victims. Unlike judges and prosecutors, police see the raw hurt that criminality inflicts. For the police, as well as for most of us,

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doing justice in such circumstances means ensuring that the perpetrators are caught and punished (Bayley and Bittner, 1984). The police are tempted to violate the law in order to serve the larger interest of natural justice. This is often referred to as “noble cause” misbehavior (Fitzgerald, 1989; Mollen, 1995).

UNIQUE EMPOWERMENT

Among agents of government, the police have a unique power-they can physically constrain individuals. In order to provide public safety, the police are allowed to lay hands on people’s bodies against their will. This is the authorization that defines them (Bayley, 1985). The problem is that it is only a short step from unique authorization to preferred tool (Goldstein, 1990). Zealous law enforcement inevitably takes the form of overusing this unique power. The defining misbehavior of the police, then, is the misuse of force.

PUBLIC RESPECT

The public is as ambivalent as are the police about the balance between crime-control and due process. They too want guilty people to be caught and punished, especially when they have been victimized, and they com- municate that sentiment forcefully to the police. For example, it is my strong impression that letters of commendation about individual police officers-“attaboys”-overwhelmingly praise action rather than restraint. I also suspect that police officers hear more complaints about their negli- gence and ineffectiveness in the line of duty than about their overreaching.

Not only do police feel pressure from the public to overstep their authority, they are taught in police schools that it is essential to establish immediate control in any confrontational situation (Bayley and Bittner, 1984). This is most commonly done through using or threatening to use the forceful authority inherent in the police role. The Rodney King incident is an extreme example of this. Police also believe that the public cannot be allowed to ignore or challenge the authority of the police. Police must gain what might be called “situational respect.” Research has shown repeatedly that showing disrespect to the police is one of the strongest determinants of arrest in encounters where the police have wide latitude of action (Bay- ley, 1986; Klinger, 1994; Riksheim and Chermak, 1993; Sherman, 1980; Reiss, 1971) Police refer to this as “flunking the attitude test.”

CAREER SUCCESS

Police organizations measure themselves in terms of crimes solved (meaning suspects arrested), stolen goods recovered, contraband seized, and citations issued. Not surprisingly, the careers of individual officers

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depend on performing well on the same measures. Law-enforcement actions are the basis for promotions, pay incentives, medals, commenda- tions, and choice assignments. At the same time, it is difficult for managers of police agencies to reward officers for showing restraint and for strictly protecting human rights. How are they to know when problematic behav- ior did not occur? As a result, the behavior of officers with respect to legality is generally ignored by the organizations they belong to except when violations are found out. Because the reward structure in policing, reinforced by problems of evaluation, puts a premium on crime-control, officers are faced with balancing the palpable need to demonstrate law- enforcement activity against the uncertain risk of being caught for trans- gressing legal boundaries.

BELONGING

Police want to be well regarded by the people they work with, as do people in every walk of life. They want to be accepted, to fit in, to be part of the group. If “police culture” views strict adherence to the rule-of-law as an impediment to being a good cop, individual officers will behave accordingly. Even in egregious incidents of corruption and brutality, it is painfully difficult for police colleagues to speak out (Fitzgerald, 1989; Knapp, 1973; Maas, 1973; Mollen, 1994; Skolnick and Fyfe, 1993). This need to conform, so common in human life, is undoubtedly facilitated with police because the police officers who are in most contact with the public tend to be young. They want to be accepted into their new community just as much as do members of college fraternities and sororities or recruits to the Marines.

COMPLEXITY OF THE LAW

The laws that define propriety for police are often complex and unclear. In his book Guilty, Judge Harold Rothwax shows that even judges and prosecutors disagree about the appropriate application of laws that the police are routinely called on to follow, particularly in the critical area of search and seizure (1997). Because the content of the criminal law fre- quently contains few “bright lines” and these lines shift with judicial inter- pretations and new legislation, the law becomes suspect in the minds of police (Eterno, 1999). They see it as an artifact of interpretation, as well as of politics, and not as a compelling directive.

This impression is reinforced by the behavior of other people in the criminal justice system. The “dirty secret” of contemporary American criminal justice is that prosecutors and judges know full well the corners that police cut and often turn a blind eye. The success of the entire system

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depends on convicting the guilty as quickly as possible, even if that means taking liberties with strict due process.

Furthermore, police learn very quickly that the application of law requires judgment and the exercise of discretion (Bayley and Bittner, 1984; Bittner, 1974; Brown, 1981; Davis, 1975; Rubinstein, 1973; Skolnick, 1994). This makes the law seem less a commandment than a convenience to be used to achieve control and justice.

POLICE PERSONALITY

Studies have shown repeatedly that police tend to be practical, action- oriented people (Bayley, 1994; Bayley and Bittner, 1984; Bayley and Men- delson, 1969; Brown, 1981; Skolnick, 1994). They want to bring closure, results, and solutions to the disorderly, ambiguous situations they con- front. Criminal justice processes, however, tend to be prolonged, unpre- dictable, and, from the police point of view, inadequate. In such circumstances, police are tempted to shortcut the law so as to deliver what their role requires, namely, certain and speedy deterrence.

The power of the factors mentioned here as facilitators of disregard for the rule-of-law should not be underestimated. How many of us on the outside of policing if similarly situated could hold out against the tempta- tion to render justice in “natural” rather than legal terms? The wonder of policing in countries like the United States is not that police take liberties with freedom, but that they do not do it more often-or at least are not seen to be doing it more often.

The task to be addressed now is to assess how strong an instrumental case can be made that it is in the interest of the police, individually as well as collectively, to adhere strictly to the rule-of-law regardless of the circumstances.

THE DISADVANTAGES OF LAW BREAKING Seven arguments can be made that violating the rule-of-law does not

serve the interests of the police. The research in support of each will be cited.

VIOLATING THE RULE-OF-LAW CONTRIBUTES MARGINALLY TO DETERRENCE

The fact is that “getting tough on crime” by overstepping legal bounda- ries produces very small, if any, gains in reducing criminality. To begin with, the criminal justice system is very ineffective at any time in matching punishment to crime. At every stage of criminal-justice processing, the ability to deliver punishment to guilty persons decreases, although the

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extent of the slippage undoubtedly varies among jurisdictions, especially among countries. I have estimated that less than 5 % of crimes reported to police in the United States result in either a fine or incarceration (Bayley, 1991). Approximately 50% of all crimes are not reported at all; of those, about 22% are solved, reducing the ratio to reported crime to 11 YO; per- haps as few as 50% of cases solved are prosecuted (so 5.5%); 80% of those prosecuted are convicted (so 4.4%); and many of those convictions pro- duce suspended sentences. To be fair, however, the ratio of punishment to crime is higher than this average for more serious crimes, such as murder, aggravated assault, and robbery.

Furthermore, research has shown repeatedly that crime is much more responsive to social conditions than to legal sanctions. Criminologists esti- mate that close to 80% of the variation in crime rates within developed countries can be accounted for by unemployment, income, education, racial heterogeneity, residential mobility, home ownership, and single- households headed by women (Braithwaite, 1979, 1989). Illegality on the part of the police can make only a small difference in an already small effect.

Research also shows that some of the standard strategies employed against crime by the police, some of which push the envelop of legality, are of dubious efficacy. For example, research has shown that only about 10% of proactive traffic stops produced evidence of more serious criminality, such as carrying contraband (Harris, 2001). In New York City, arrests were made in about 10% of all “stop and frisks,” regardless of the race of the person stopped (New York Attorney General, 1999) A study by the U.S. Customs Service found that contraband was found in 6% of searches of both black and white travelers (1998). When racial and gender profiling was eliminated in 1998, the success rate actually improved to almost 16% (Cole and Lamberth, 2001). At the same time, analysis of data from the Maryland highway patrol in response to concern about racial profiling in stopping suspected drug traffickers found that “hits” were made in about 28% of the stops, almost exactly the same for blacks and whites (Lam- berth, 1999).

Contrary to police predictions, promulgation of Miranda warnings did not result in a decline in the success of criminal prosecution (American Civil Liberties Union, 2000; Cassell and Hajman, 1996; Leo, 1996; Schulhoffer, 1996; Thomas, 1996). Nor did the enactment by police depart- ments of policies restricting the use of deadly force result in increases in crime or injuries to officers or decreases in arrest rates (Fyfe, 1988; Walker, 1993).

It is also safe to say on the basis of research into the efficacy of police strategies and tactics since the President’s Commission on Law Enforce- ment and the Administration of Justice (1967) that police claim greater

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success for their core strategies than is warranted (Bayley, 1994; Sherman, 2000). In a recent review of research into the effect of police actions on crime, John Eck and Edward Maguire concluded that it is a myth “that the police have a substantial, broad, and independent impact on the nation’s crime rate” (200051). They go on to say, “If the police continue to apply generic coercive measures, we may continually oscillate between unfair but marginally effective police practices, and marginally fair but ineffec- tive policing” (p. 54). In arriving at these conclusions, Eck and Maguire reviewed studies of variations in the numbers of police, community polic- ing, zero-tolerance policing, COMPSTAT, gun interdiction patrols, retail drug enforcement, and problem-oriented policing.

Not only does the available evidence cast serious doubt on the assump- tion that violating the rule-of-law by the police makes communities safer, it would be very difficult for the police or anybody else to prove that it did. In order to show that violating the rule-of-law was efficacious, it would be necessary to estimate the marginal deterrent gain of such activity. Obvi- ously there is no specific deterrent gain if innocent people are punished, although there could be a gain if the person sanctioned was innocent in the particular instance but guilty in others. In order to show that the specific deterrent effect of convictions by questionable means was substantial, it would be necessary to determine the proportion of people so convicted that were truly guilty. Such research is impossible.

At the same time, unjustified arrests and dubious prosecutions might have a general deterrent effect, that is, they might demonstrate to would- be criminals that crime is a risky business. Reviews of research on general deterrence conclude that any such effect is small and tough to prove (Laub and Sampson, 2002; Nagin, 1998). As Daniel Nagin says, “despite the intensity of the research effort, the empirical evidence is still not sufficient for providing a rigorous confirmation of the existence of a [general] deter- rent effect. Perhaps more important, the evidence is woefully inadequate for providing a good estimate of the magnitude of whatever effect may exist” (p. 135). On the other hand, Tracey Meares and Dan Kahan have argued that controversial policies such as curfews, gang-loitering regula- tions, police order-maintenance, and reverse stings may strengthen local norms against criminal or disorderly behavior (1998). They caution, how- ever, that such practices can undercut local norms of compliance with law, as well as undermining respect for law generally.

In sum, the general deterrent effect of questionable police practices is doubtful and certainly difficult to estimate.

Research has also shown that arrests in general magnify the social disor- ganization of families and communities, especially in communities where the proportion of people affected by criminal sanctions is high (Rose and

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Clear, 1998). It is reasonable to conclude that unjust arrests and convic- tions would augment this effect. Contrary to the expectations of the police, therefore, law-enforcement based on questionable legal practices may be criminogenic.

The restorative justice movement presents a larger challenge to the belief that violations of the rule-of-law are useful tactics in law enforce- ment. John Braithwaite and others argue on the basis of a growing body of evidence that informal processes of sanctioning featuring “community conferences” among police, victims, suspects, and their respective support- ers may be more effective at preventing repeat offending than referral to the formal criminal justice system (Braithwaite, 1988, 1998; Strang, 2000). If this is true, then the gains from questionable law-enforcement practices must we weighed not only against acceptable ones, but also against the benefits of criminal justice processing that does not rely primarily on deterrence.

It is often argued that the more serious the criminal threat, the greater may be the need for practices that violate the rule of law. This explains why “states of emergency” suspending the normal protections of law are accepted after natural disasters, during civil wars and guerilla insurgencies, and in the face of rioting and widespread violent protests. The assumption is that the greater or more immanent the potential threat, the greater the value to be derived from violating the rule-of-law. This may be true in some circumstances. But even here the evidence is contradictory. Cooper- ation between the public and law-enforcement authorities, both police or military, was considered critical in winning the guerilla insurgency in Malaysia in the 1950s and 1960s, Germany’s fight against the Red Brigades in the 1970s, and in Japan’s campaign against the radical Red Guards in the early 1970s. Conversely, if government can win people’s “hearts and minds,” deviant elements become isolated and vulnerable. Law enforce- ment authorities, even when faced with massive civil unrest and criminal- ity, have learned that they must carefully calculate whether their tactics turn the public into coproducers of order or co-conspirators of defiance (Kissinger, 1965; Komer, 1972; Thompson, 1969; West, 1985).

VIOLATING THE RULE-OF-LAW REDUCES ENFORCEMENT EFFECTIVENESS

Violating the rule-of-law impairs crime control by alienating the public. This occurs in two ways. First, violating the rule-of-law lessens the willing- ness of the public to assist the police in carrying out their assigned role. Research has shown again and again that the police are almost wholly dependent on the public to provide the information needed to provide safety and deter crime (Bayley, 1994; Goldstein, 1990). In countries like the United States, most police work arises out of calls to them from the

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public (Parks et al., 1999; Reiss, 1971). Police are almost entirely depen- dent on the public to tell them when crime occurs.

Without information from the public, crimes cannot be solved and criminals successfully prosecuted. Greenwood and Petersilia found that if the public does not identify the likely suspect in some particular way- name, residence, relation to victim, license plate-the chances of a crime being solved by the police falls to less than 10% (Greenwood et al., 1977, also Royal Commission on Criminal Procedure, 1981). Contrary to myth and media, detectives work from the identification of suspects to the col- lection of evidence rather than from the collection of evidence to the iden- tification of suspects. This operational modality, practiced by detectives the world over, may be in the process of dramatic transition. The advent of DNA identification reducGs the dependence of the police on public infor- mation and raises the importance of physical evidence. How much this technology will change customary investigation procedures remains to be seen. Because DNA identification is so conclusive, it also promises to make it more difficult to convict innocent persons through overzealous investigation.

As a result of research conducted during the 1970s and 1980s, a consen- sus emerged among scholars and police that successful crime prevention depends more on actions the public takes than on anything the police can do on their own (Goldstein, 1990; Rosenbaum, 1988; Sparrow et al., 1990; Trojanowicz and Bucqueroux, 1990). Research showed repeatedly that the standard responses of the police to crime were not effective-most nota- bly, random foot and motorized patrolling (Kelling et al., 1974; Police Foundation, 1981), rapid response to emergency calls for service (Bieck and Kessler, 1977), and improvements in technology (Manning, 1992; Morris and Heal, 1981). Research has also called into question the crime- prevention value of so elementary a policy as hiring additional police per- sonnel (Bayley, 1994; Levitt, 1994; Loftin and McDowall, 1982; Marvel1 and Moody, 1996).

These findings do not imply that there is nothing the police can do on their own to prevent crime, but that the assistance of communities makes police efforts vastly more effective (Sherman, 1986, 2001; Sherman et al., 1998).

The research of the 1970s and 1980s that called into question customary police strategies led to an intense search for alternative approaches. What emerged was community- and problem-oriented policing, both of which recognize that the public should be viewed as coproducers of public safety and that the criminal law is an awkward tool for resolving crime and disor- der problems (Goldstein, 1990; Skogan and Hartnet, 1997; Trojanowicz and Bucqueroux, 1990). In other words, the choice between hard (deter- rent) and soft (rule-of-law) policing is false. In order to become effective

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at preventing crime, police need to be protective of human rights so that they can enlist the willing cooperation of the public. Policing by consent, to use the British slogan, is more effective at crime prevention and control than is hard-nosed law enforcement by a socially isolated police.

Second, when the police violate the rule-of-law, they not only forfeit the cooperation they need, but they also raise the likelihood that encounters with the public will generate hostility and violence. When police act beyond the law, they lose their moral authority. This creates a tragically reinforcing cycle: Abuse by the police intensifies public suspicion and hos- tility toward the police; suspicion and hostility are expressed as sullenness and disrespect; this prompts the police to exert their authority more explicitly, perhaps more forcibly, which begins the cycle over again. Actions that are perceived to be arbitrarily tough may encourage the very sort of confrontational violence they are supposed to discourage. This pat- tern has been founded repeatedly in observations of the interactions between the police and African-Americans in the United States (Bay!ey and Mendelsohn, 1969; Brown, 1981; Kamisar, 1964; Maclin, 1991; Sykes and Brent, 1983).

In sum, extensive research has shown that when the police alienate the public, their ability to enlist the cooperation of the public declines and hostility toward the police in face-to-face encounters increases. In neither case is public safety well served.

VIOLATING THE RULE-OF-LAW WEAKENS THE AUTHORITY O F LAW

Research has also shown that the way in which laws are enforced affects perceptions of their legitimacy and the willingness of people to obey them (Sherman, 2000). For example, Raymond Paternoster et al. found that the risk of repeat offending for people arrested for domestic violence was less when they had not been handcuffed in front of the victim and when the police had taken time to listen to them as well as to the victim (1997). Research by Tom Tyler shows that people are more likely to obey the law if they believe that sanctions will be delivered in a procedurally fair way. His theory is that compliance with the law depends on perceptions of legit- imacy; perceptions of legitimacy in turn depend on perceived fairness of criminal justice agents; and perceived fairness depends on the manner of treatment, which is composed of assessments of the motives, quality of treatment, neutrality, and reasonableness of the sanctioner (Tyler, 1997). Tyler concludes (p. 178):

Police officers and judges who recognize and respond to people’s normative concerns can exercise their authority more effectively; the rules and decisions will be accepted and obeyed voluntarily.

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Employing a quasi-experimental design, Makkai and Braithwaite found that compliance with sanctions for violations of quality standards in nurs- ing homes was sharply affected by the way in which the sanctions were applied (1994). If they were applied with demonstrated tolerance and understanding for the position of the violator rather than with personal condemnation, they were more likely to be followed.

In short, a growing body of research suggests that compliance with the law is affected by the way in which it is applied as well as by its severity. Rules must be enforced, but they will be accepted more readily if applied with consideration for the sensibilities of the people involved.

VIOLATING THE RULE-OF-LAW SCAPEGOATS THE POLICE

When police take the law into their own hands to control crime, they are implicitly shifting responsibility for crime wholly onto their own shoulders. If crime arises largely out of social deprivation and disorganization, as criminologists have shown, then violations of the rule-of-law by police are an attempt to compensate for deficiencies in social policies over which the police have no control. Similarly, if they resort to extra-legal tactics to make up for deficiencies of law and legal procedures, they are again trying to remedy inadequacies they did not create.

By abridging the rule-of-law, police not only take responsibility for crime onto themselves, they also deflect attention to themselves and away from the negligence of others. If crime is out of control, the police should not accept responsibility for it by exceeding their mandate. They should insist, along with an aroused citizenry, that social policies be changed or that laws be amended. Ironically, police know that there is little they can do on their own to prevent crime against entrenched criminogenic social conditions. They often say that their efforts are like a “bandaid on can- cer.” Violating the law to make up for policy deficiencies, ironically, plays into the very criticism police deplore.

VIOLATING THE RULE-OF-LAW DEPRESSES MORALE AND MAKES THE POLICE JOB LESS SATISFYING

Violating the rule-of-law changes the character of police organizations in several unfortunate ways. First, it puts enormous pressure on all employees to hide what is going on and, in so doing, puts them at risk. The organization becomes hostage to its own deviants (Skolnick and Fyfe, 1993),

Second, violating the rule-of-law inevitably invites outside correction when misdeeds are discovered. This creates a bunker mentality as police

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organizations try to fend off intervention. Feeling besieged, police agen- cies become less willing to be open and welcoming to the public and its representatives (Bayley, 1983).

Third, in an effort to appear accountable, police work becomes more rule-bound and discipline becomes more formalistic. Police officers are given less responsibility, especially at lower ranks. Initiative becomes sec- ondary to errorless performance (Bayley, 1996b).

Fourth, the relations between supervisors and subordinates become strained and adversarial (Ianni and Reuss-Ianni, 1983). They are no longer on the same side, but opponents in a depressing game of hide-and-seek. Wariness replaces collegiality.

In general, illegality in the service of public safety makes policing a fur- tive, anxious activity. It undermines pride, which is the basis of job satis- faction. Furthermore, pride is essential to self-discipline, which is the most effective means of achieving exemplary performance (Bayley, 1993).

VIOLATING THE RULE-OF-LAW WASTES COMMUNITY RESOURCES

In countries where redress under law is possible, revelations of law- enforcement excesses jeopardize both past and future prosecutions. It has been estimated that as many as 1,500 convictions in Los Angeles may be revisited and vacated as a result of the illegal activities of a handful of officers the Ramparts subdivision (Skolnick, 2001). Furthermore, in juris- dictions where people whose rights have been violated by the police may sue the appropriate governments for damages, the monetary costs to the community may be substantial. The costs of civil liability stemming from police misbehavior in New York City since 1994, for example, has been $176.9 million, not including the legal costs involved in opposing such actions. The Los AngeZes Times has estimated that the city’s liability in the Rampart subdivision’s scandal could exceed $125 million (2000). In smaller jurisdictions, such awards may bankrupt governments.

Violating the rule of law raises the costs of law enforcement, wasting investments already made in criminal prosecutions and diverting money that might be used for crime prevention.

VIOLATING THE RULE-OF-LAW PLACES POLICE OFFICERS AT RISK

Most obvious of all, the personal cost to officers who are caught violat- ing the rule of law can be catastrophic. For officers who do this for their own personal gain-money, promotions, recognition-there should be no sympathy. But for officers who have engaged in questionable practices because they believe such practices enhance the effectiveness of law

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enforcement, the situation is morally more ambiguous. In a perverse sense, they are behaving heroically, placing themselves at risk for the pre- sumed sake of public safety. This essay is written expressly to arm such officers against exactly this misconception, so that they will not risk so much for so little.

CONCLUSION

In democratic societies, the objective of law enforcement is to maximize both deterrent criminal effectiveness and conformity to the rule-of-law based on recognized human rights. The common assumption is that these goals are in conflict. I have given seven reasons why I believe this view is mistaken. The goals of effectiveness and rectitude in policing are not, to use technical language, orthogonal.

How solid is the evidence that supports this view? Some is very solid, especially the research on the uncertain utility of standard police practices. Also strong is the research on the doubtful benefits of specific deterrence. Unfortunately, the evidence for several other arguments is either weak or nonexistent. For example, Tom Tyler’s work on the relationship between compliance with the law and the behavior of criminal justice authorities is projective, based on telephone interviews with individuals about minor law violations. Similarly, the advantages of community-oriented crime pre- vention approaches have not been unambiguously demonstrated (Rosen- baum, 1994; Skogan and Harnett, 1997).

It can be argued, on this assessment, that the crime-control value of strict adherence to the rule-of-law has not been conclusively demon- strated. However, the burden of proof, in my opinion, is on the other side. There is even less evidence that illegal strategies are more efficacious. The best available evidence shows that the immediate benefits of violating the rule-of-law are at best small, more likely mythical, and that the long-term costs are substantial. On balance, I conclude that it is in the interests of the police, both individually and collectively, to adhere to the rule-of-law. There may be circumstances where violating it are justified, but such situa- tions are rare and the value of doing so in any particular case should not be assumed. In short, a stronger, evidence-based case can be made that defending human rights enhances police effectiveness than that doing so hampers it. Illegality in policing is a risky and generally unproductive strategy.

What research might be undertaken that would make a more compel- lir,g case for the benefits to police of adhering scrupulously to the rule-of- law? The review of research presented in this essay suggests that the fol- lowing questions have not attracted the attention they deserve.

(1) When police violate the rule-of-law, do they recognize they are

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doing so? Is the premise of this essay correct that police officers generally know what the law requires and violate it with a sense of guilt?

(2) How much do the police gain in terms of specific deterrence from any of their crime-control strategies, but especially those that threaten the rule of law, such as pedestrian stop-and-frisk, ran- dom motor-vehicle stops, and interdiction profiling?

(3) How close is the connection between police scandals and public alienation? In particular, does police misbehavior cause the pub- lic to withhold support in ways that affect police effectiveness, for example, through failing to report crime, unwillingness to identify likely suspects, not cooperating with crime prevention programs, and withholding testimony in criminal trials.

(4) To what extent are public attitudes toward the police affected by the ability of the police to “clear crimes” and make arrests? Fail- ing to catch criminals is known only to a few, except in celebrated cases; publicity about misbehavior is known not only to those immediately involved, but also runs the grave risk of becoming known to the wider community. A few well-publicized scandals may affect public perceptions of the police far more than a host of successful investigations.

( 5 ) Does the manner in which the law is enforced exert a powerful effect on the likelihood of re-offending? What factors affect this relationship?

(6) To what extent is morale and, by extension, job satisfaction, affected by knowledge of violations of the rule-of-law within police forces? Furthermore, does the occurrence of such viola- tions affect the character of discipline within the force and nature of the relations among ranks, especially between supervisors and supervisees?

(7) How much variation is there with respect to tolerance of right- eous illegality within as well as between police forces? And what are the factors that determine the differences?

If my assumption is correct that police often violate the rule-of-law because they believe it improves their ability to control and prevent crime, then gathering additional evidence that it does not is an important under- taking. But it is clearly not a sufficient response to the problem. The infor- mation must be used so that it changes behavior. How is this to be done?

One possibility would be to broaden the approach to the teaching of law and ethics to police recruits. In addition to instructing them in the require- ments of due process and the value of the rule-of-law in democratic socie- ties, they would be presented with the utilitarian arguments made in this

BAYLEY

paper. In effect, the tradeoff problem would be met head on with police officers at the very beginning of their careers.

At the same time, I am doubtful whether changing the cognitive under- standing of police officers individually will be sufficient to offset the occu- pational culture within which they work. It is unrealistic to expect individual police officers, no matter how well instructed in the arguments made in this essay, to stand against the crime-control understandings and expectations of their colleagues, the public, and their senior officers. The more effective strategy, then, for changing the mindset of police officers is to convince the leaders of police agencies that violating the rule-of-law is not a sound law enforcement strategy, so that they will then be embold- ened to change the moral tone, disciplinary mechanisms, management pri- orities, and career incentives within the organization. Research has shown time and again that organizations are the most powerful determinants of the behavior of people within them (Bayley, 1996b; Hall, 1991; Walker, 1993). Cognitive instruction of the kind suggested here should be focused initially and repeatedly on senior police executives. If they can be con- vinced that violating the rule-of-law is not useful in achieving the goals of police organizations, they will find the means to convince the rank-and- file.

The conclusion of this essay, then, supported by current social science research, is that violating the rule-of-law in order to control crime is mis- taken and that the best place to start in reorienting police practices is with the managers of police agencies.

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David Bayley is a Distinguished Professor in the School of Criminal Justice, State University of New York at Albany. A specialist in international criminal justice, with particular interest in policing, he has done extensive work in India, Japan, Australia, Canada, Britain, Singapore, and the United States. His work has focused on strategies in policing, police reform, accountability, foreign assistance to police agencies, and the tactics of patrol officers. Professor Bayley’s most recent books are What Works in Pofic- ing (1998) and Police for the Future (1994). both published by Oxford University Press, New York. Supported by grants from the National Institute of Justice and the MacAr- thur Foundation, he is currently engaged in a three-year research project studying the lessons-to-be-learned about assisting foreign countries to develop effective democratic police forces. Professor Bayley earned a B.A. degree at Denison University (1955), an M.A. at Oxford University (1957), and a Ph.D. at Princeton University (1960).

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