AJCJ, Vol. XIV, No. 2 (1990)

BEYOND THE SUPREME COURT: ALTERNATIVE PATHS TO THE CONTROL

OF POLICE BEHAVIOR

Samuel Walker University of Nebraska at Omaha

I. Introduction

The current posture of the U. S. Supreme Court is clearly unsympathetic to the rights of suspects, or at least to the interpretation of those rights given by the Warren Court in the 1960's. While neither Mapp (1961) or Miranda (1966), the two most famous Warren Court decisions, have been overturned outright, the Burger and Rehnquist courts have significantly narrowed their scope. The majority of the court is and has been sympathetic to the claims public safety and the expressed needs of law enforcement agencies (Kamisar, 1987).

The trend in the court has civil libertarians in a state of alarm. Two decisions in the 1988-89 term upholding the constitutionality of drug testing programs caused some commentators to see the demise of the principle of individualized suspicion and with that, the essential principle of the Fourth Amendment (Hentoff, 1989). The cries of alarm from civil libertarians have raised the specter of police officers freed from judicial restraints, and the possibility of a return to an era of police lawlessness such as existed before the advent of the Warren Court.

This article questions the validity of the alarmist view. Citing the steady growth of administrative rulemaking in policing, it argues that today's police officers are subject to increasing web of formal controls over their behavior. Perhaps even more important, this development has acquired a momentum of its own and is, to a certain extent, independent upon developments in the Supreme Court. As a result, the working environment of policing has been significantly altered in the past twenty years, moving in the direction of heightened accountability. 1

1 For a broader treatment of this argument with reference to the entire criminal justice system, see Walker, "The Rule Revolution" (1989).

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The argument here in no way seeks to discount the far-reaching implications of the court's position on, for example, the Fourth Amendment. Nor does it address the issue of controlling police behavior through the provisions of state constitutions--a movement that some commentators argue has advanced substantially (Utter, 1989). Rather, this article focuses on the extent to which administrative rulemaking has altered the working environment of policing.

I1. The Courl; i~nd the Police: A Brief Historical Overview

The alarmist rehetoric about the police being unleashed from judicial restraints reflects a particular model of the control police behavior, one in which the courts, and the Supreme Court in particular, are the principal instruments of such control. There is ample historical justification for this view. The Warren Court's "due process revolution" transformed the entire criminal justice system, introducing standards of constitutional law in virtually every component ~Walker, 1980). The impact on the police was particularly strong,~and the court'-s major decisions--particularly in the famous duo of Maoo and Miranda--helped stimulate sweeping reforms, most of which have gone far beyond the command of particular decisions. Although the court was hardly the only force for change--the civil rights movement played an extremely important role--the Court's role cannot be underestimated.

The most significant reforms have occurred in the areas of personnel standards and supervision. The threat of losing criminal cases, through either incompetence or willful misconduct, provoked police departments to raise personnel standards. The educational levels of American police officers have risen dramatically. The per- centage of sworn officers with no college experience fell from 80% in 1960 to 34.8% in 1988; the percentage with four years of college or more rose from 2.7% to 22.6% in the same period (Carter, et. al., 1989). Formal pre-service training programs expanded in both length and the range of subjects covered. The average length of training programs increased from 340 hours in 1952 to 633 in 1982

2 But see Yale Kamisar's argument that the Warren Court was not as strong in its defense of the rights of suspects as its reputation suggests and that the Burger Court was not as hostile as its critics suggest (Kamisar).

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(Frost and Seng, 1984). 3 In the process, many departments added the first significant training in the area of criminal procedure and added the first ever components of race relations, domestic violence and ethics.

Improvements in the area of supervision were equally significant. By the early 1960's most departments had few if any formal rules governing police behavior. The typical police manual of the period was a small pocket-sized booklet giving much attention to such things as dress and grooming but no rules covering the exercise of law enforcement powers. 4 By the 1980's virtually every police department in the medium to large category maintained a large standard operating procedure (SOP) manual. The central tool of management and supervision, SOP manuals are typically several hundred pages long with detailed rules on such critical decisions as the use of deadly force and high speed pursuits. 5 A recent study of narcotics officers in the Chicago police department found that in the years after Mapp a series of changes in supervisory practices were implemented to ensure greater compliance with the law (Note, 1987).

The Warren Court decisions also provoked a wide-ranging debate among scholars and law enforcement practitioners over the proper method of controlling police behavior (Paulsen, et. al., 1970). The urgency of the issue was heightened by the escalating civil rights movement which produced sustained allegations of discriminatory police behavior in virtually every community. The debate also coincided with the publication of the first empirical research on routine police work. The most systematic investigation, the American Bar Foundation Survey of the Administration of Justice (Newman, 1966; Walker, in progress), found that police officers not only exercised enormous discretion on

3 The San Jose training program, cited as a model by the Justice Department, includes sixgteen week (640 Hours) of academy training followed by fourteen weeks (560 hours) of Field training--or a total of 1200 hours before an officer is sent out on the street alone (McCampbeU).

4 One of the best collections of early manuals is in the Criminal Justice Library of the University of Wisconsin Law School.

5 There is no systematic investigation of SOP manuals, either of their contents or their impact on police work. But see Krantz (1979) for one approach.

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a routine basis but that much of that behavior was illegal or at least of dubious legality (J. Goldstein, 1960; LaFave, 1965).

The exclusionary rule dominated the ensuing debate, in large part because of the political controversy surrounding the rule and the symbolic role that it assumed for related issues involving crime and the role of the Supreme Court (Walker, 1980). Supporters of the rule argued that it was justified both in terms of constitutional doctrine and as a practical device for controlling police behavior. Opponents, meanwhile, argued that as a matter of doctrine the Court had misinterpreted the Fourth Amendment and that, on the practical level, the rule inhibited effective law enforcement. In short, the debate revolved around two basic questions: (1) what formal rules, if any, were appropriate for the police, and (2) what was the proper source of any such body of rules (Amsterdam, 1974-74; McGowan, 1972; Davis, 1975).

By the early 1970's a rough consensus had emerged among police experts, with Herman Goldstein 6 (1963; 1977) playing perhaps the critical role in its development. The key provisions of that consensus involved the issue of police discretion: (1) that it was an inherent part of police work and could not be "abolished" as a practical matter; (2) that it had certain positive aspects; (3) that the real challenge involved controlling it in order to limit abuse; (4) that formal rules were the most effective instrument of control; and (5) that the most effective rules were those promulgated by law enforcement agencies themselves (Davis, 1975). Even many commentators who supported the exclusionary rule on doctrinal grounds, for example, conceded that it was an extremely limited instrument for controlling police behavior (McGowan, 1972). The emerging consensus represented, in a nutshell, the application of

6 Goldstein's role in the development of this consensus cannot be underestimated. He was a member of the field research team for the American Bar Foundation Survey (Newman), wrote some of the early articles on the problem of controlling discretion (H. Goldstein, 1963), and was one of the principal authors of the President's Crime Commission Task Force Report on the Police (President's Commission), and one of the reporters for the American Bar Association (1973) Standards Relating to the Urban Police Function.

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administrative rulemaking to policing. 7

III. A Comment on Rules and the Police

The concept of administrative rulemaking as applied to the police involves a number of implicit assumptions about both rules and the working environment of the police.

First, it is important to define what we mean by a rule. A rule is any formal control over police behavior specifying either what must be done, what may not be done, or both (Walker, 1988). In practice, the strength of a rule is enhanced by an enforcement mechanism, including both scrutiny by someone other than the officer making the decision in question and some potential consequences for violating the rule. From this perspective, the Mapp decision included judicial scrutiny and the sanction of excluding evidence obtained in violation of the Fourth Amendment. Current rules on use of firearms typically involve a mandatory report on each discharge and an automatic review of that report by supervisors.

Rules may emanate from any one of three sources: statute, case law, or administrative policies. In many instances a particular police action may be governed, in different degrees, by all three. Thus, police use of deadly force is governed by state statute, the 1985 Supreme Court decision in T~nnessee v. Garner (1985), and departmental policies.

The growth of rules is has been a complex phenomenon (Walker, 1988). Two elements of that process need to be highlighted. First, new rules are often to result of external forces impinging on the police, either in the form of political pressure or in the recommendations of professional associations. Second, the making of one rule often stimulates the making of others. Thus, for example, the Miranda (1966) decision forced police departments to promulgate their own administrative policies explaining the decision and instructing their officers on how to proceed. Years before the Garner (1985) decision, lower court rulings on police shootings forced police departments in the

7 Davis (1975) was an established authority in the field of administrative law but did not address the question of policing until the early 1970's. His work, then, represents modification of the new consensus, although others deserve credit for its development.

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relevant circuits to substantially revise their firearms policies (Sherman, 1978). In a number of states, statutes require law enforcement agencies to develop rules governing high speed pursuits.

The significance of rules lies in the context of the conventional wisdom about the working environment of policing. The classic statement of this view is Jerome Skolnick's, (1966) Justice Without Trial which defines the problem as a tension between the norms of police work and the rule of law. The pressure to get the job done -- to make arrests, obtain evidence and secure confessions-- puts severe pressure on police officers to bend and even break the rules of law. Herbert Packer (1968) places this tension in a broader conceptual framework positing a dichotomy between the crime control and due process models of the criminal process. The working environment of the police, moreover, is one of "low-visibility" decision-making (J. Goldstein, 1960), with decisions occuring beyond the purview of direct oversight or monitoring. From this perspective, the central question in the debate of the control of the police has been the extent to which any rule effectively penetrates the working environment and has some significant effect on behavior.

IV. Trends in Police Administrative Rulemakina: Selected Case Studies

A. Deadly Force

It hardly needs to be said that the use of deadly force is the most critical decision to be made by a police officer. It is literally a matter of life and death. The control of that decision represents perhaps the most signfificant area of police reform of the past few years. Fortunately, for our purposes, it is also one of the most intensively research areas in all of policing (Geller).

Generally, the direction of change over the past twenty years has been away from the permissive "fleeing felon" rule to the restrictive "defense of life" standard. Perhaps the most significant aspect of this process is the relative unimportance of the Supreme Court's decision in Tennessee v. G~rner (1985). As briefs in the case indicated, the majority of big city police departments had already abandoned the fleeing felon rule. This broad change in policy, relatively uncoordinated but nonetheless national in scope, was the result of a combination of political pressure, administrative rulemaking and litigation yielding lower court decisions. A major turning point was the adoption of a restrictive

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firearms policy by the New York City police department in 1972 (Fyfe, 1979). Over the next several years other big city police departments followed the New York example. In some instances, lower court decisions forced departments to revise their policies (Sherman, 1978).

It is important to note that these new policies were often more specific and restrictive than the relevant state statute. For example, they typically prohibited warning shots and shots at or from moving vehicles. Even more important, the generally contained compliance mechanisms involving a mandatory report by the officer discharging a weapon and an automatic review of that report (Omaha Police Division, 2-3-0; Fyfe, 1979).

Fyfe's (1979) study of the impact of the New York shooting policy found that it reduced the average number of firearms discharges by 30%, and did so without adverse effect on either the crime rate or danger to police officers. Sherman and Cohn's (1986) survey of persons shot and killed by the police in the fifty largest cities between 1971 and 1984 found a fifty percent reduction: from 353 to 172. Meanwhile, the ratio of black citizens to white citizens shot and killed fell from about 7 to 1 to 2.5 to 1, These data suggest that the new restrictive policies accomplished much of their intended results--a remarkable success story in an era when many criminal justice reforms are seen as failures.

The Supreme Court decision in Garner invalidated the fleeing felon rule, at least in the case of unarmed fleeing felons. But as we have seen, most big city departments already had more restrictive policies in effect at the time of the oral argument in the case. The virtual absence of strong protest over Garner from the law enforcement community further suggests the extent to which restrictive policies have been accepted by those subject to them (FrideU and Walker, 1989).

Three general points about the change process can be made at this point. First, the defense of life standard communicates a set of values to police officers: that the protection of life is more important than the mere arrest of a suspect and that in any particular situation the officer is expected to weigh the immediate

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danger posed by the suspect. 8 In terms of Herbert Packer's (1968) schema, we can view this as a significant diminution of crime control values and an elevation of due process values. In terms of the control of discretion, the report and review mechanism substantially raises the "visibility" of the decision to use deadly force. The written policies not only provide some guidance on when to shoot but place the officer on notice that he or she will be held accountable for each decision, including those that do not result in a death.

B. Domestic Violence

The question of police handling of domestic violence has received nearly as much public attention as deadly force over the past fifteen years. And there has also been an enormous amount of change in law and policy.

Generally, there occurred a complete reversal of the "best" professional thinking between the 1960's and 1970's. In the t960's the enlightened position emphasized alternatives to arrest in domestic violence situations. Morton Bard's (1970) highly publicized Family Crisis Intervention experiment attempted to train officers in alternatives to arrest. Largely as a result of the women's movement, that approach was casst aside in favor of an "arrest preferred" approach. Women's groups identified spouse abuse as a major problem and saw the failure to arrest abusers as an approach that left women vulnerable to additional violence. Highly publicized law suits in New York city and Oakland successfully raised equal protection issues on behalf of women and resulted in the promulgation of written policies directing police officers to arrest in cases of felonious assault (Loving, 1980).

An experiment in Minneapolis (Sherman and Berk, 1984) testing different police responses to domestic violence Situations found that arrest deterred future violence more effectively than did counselling the offender or asking him to leave the premises. The Minneapolis study gave additional support to the national movement for mandatory arrest. The strength of that movement was indicated by Cohn and Sherman and Cohn's (1987) national survey which

8 On the question of values in policing, the argument here takes strong issue with that advanced by the Harvard University Executive Session on Policing (Wasserman and Moore) which emphasizes general statements of values rather than detailed rules in specific law enforcement situations.

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found that the percentage of big city departments (population, 100,000 or more) with "arrest preferred" policies rose from 10% in 1984 to 46% in 1986. A replication of the Minneapolis study, however, found no deterrent effect; the results of replications conducted in other cities have not yet been reported (Dunford, et al., 1989).

Three comments on the impact of arrest preferred policies are in order.

Research on police arrest preferred policies has focused narrowly on the issue of the extent to which they deter future violence. There is no research on whether such policies are implemented in the context of routine policing. The available' experiments controlled the discretion of officers as a part of the experimental condition (Sherman and Berk, 1989). It is not clear whether such policies will be carried out under normal conditions where the officers have full discretion. Moreover, the policies adopted to date do not have the reporting and review mechanisms contained in deadly force policies. For these reasons, there is some reason to question whether the policies will have the same effect on officer behavior as the deadly force policies have had (Walker, 1986).

The trend toward arrest preferred policies for domestic violence is particularly significant in the broader context of police discretion. It represents the only arrest decision addressed by written policy in current SOP manuals. This only highlights the extent to which the critical decision to take a person into custody is generally left to the unfettered discretion of police officers (LaFave, 1965). Thus, while the development of such policies represent an important breakthrough in the penetration of rules in routine policing, it is equally evident that it is an extremely limited development to date.

Finally, it should be noted that the rules communicate values, much as the new deadly force rules do. In this instance the rules communicate crime control values (through a preference for arrest) in the pursuit of equal protection. Thus, the traditional dichotomy between crime control and civil libertarian values, as defined by Packer (1968), does not hold and the two "models" tend to be synomymous.

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C. High Speed Pursuits

A third area of policing increasingly covered by rules involves high speed pursuits. This is not only a routine event but, a highly dangerous one in terms of risk to both citizens and officers (Alpert, 1986). Many pursuits, however, involve citizens suspected of rather minor offenses (either traffic offenses or misdeanors) and, therefore, the decision to pursue raises questions about balancing the danger of not arresting the suspect and the danger posed by the pursuit itself.

In the interests of balancing these risks an increasing number of departments have adopted policies guiding the discretion of officers. Some states have adopted taws requiring departments to adopt such rules. A 1981 Nebraska (1989) law, for example, requires all law enforcement agencies to promulgate such policies and requires those policies to specifically address "(a) the degree of danger presented to the general public and the pursuing officer and (b) the probability of later apprehension of the subject based upon his or her identification." Following the mandate of the statute, the Omaha police department promulgated a policy that resembles current deadly force policies in several important respects (Omaha Police Division, 6-3). First, it communicates a set of values, instructing officers that public safety is the highest priority and that the danger posed by a particular suspect must be weighed against the danger of a pursuit. In effect, this downgrades the importance of crime control values. Second, the policy provides for greater supervision by requiring pursuing officers to notify their supervisors and by giving those supervisors the power to terminate pursuits. Finally, a mandatory report is required after every pursuit with that report being automatically reviewed by the police chief. Thus, the policy confines discretion, communicates a set of values, provides for greater supervision, and requires an automatic post-event review.

D. Other Areas.

In addition to the three areas examined here, there are other areas of policing where new controls have been imposed through administrative rulemaking. The list here is intended to be illustrative and not exhaustive. Some departments, for example, n o w require an automatic report of any use of physical force (Omaha Police Division, 9-0). In effect, this represents an inclusive approach to the use of force, with no distinction between deadly and non-deadly forms. There has also been increased attention to the need for controls over the investigative

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techniques of informants and undercover work. These techniques raise the most serious ethical and legal questions in policing. Despite the fact that they have long been standard techniques in the repertoire of policing, they have also been shrouded in secrecy and subject to virtually no controls (Marx, 1988).

One innovative approach to intrusive investigations is the Seattle Police Intelligence Ordinance (Walker, 1985). Enacted in 1979, it is perhaps the first attempt to ensure protection of First Amendment rights through statute. The ordinance limits (but does not prohibit entirely) intelligence gathering on political, religious and sexual activity. Perhaps most important, the law created amonitoring mechanism empowering an outside auditor to examine police investigative files. In terms of establishing the principle of accountability to outside authorities the ordinance is a milestone in policing.

Another important development has been the growth of civilian oversight of the police. Formerly referred to as"civilian review," the concept suffered two importantsetbacks in the mid-1960's when both New York City and Philadelphia abolished their review mechanisms (Paulsen, et al., 1970). To the surprise of many observers, the concept experienced a remarkable rebirth beginning in the mid-1970's. By 1985 there were enough of these mechanisms in place that their staff members created their own professional association, the International Association of Civilian Oversight of Law Enforcement (Petterson, 1985). There is no systematic evaluation of the different arrangements that exist and their relative effectiveness. Nonetheless, the important point is the threshhold question: the principle of accountability through review by outside authorities has gained tremendous ground in the last few years.

The development of accreditation in both law enforcement and corrections has also enhanced the movement toward greater accountability in important respects. Organizational work began in 1979, a set of standards adopted in 1983, and by 1989 over 100 law enforcement agencies had been accredited (Commission on Accreditation, 1989). The entire concept of accreditation is a matter of some controversy, and there are many reasons to question its efficacy in making significant changes in routine policing. Nonetheless, the priniciple of self-governance has gained considerable ground and represents a significant advance over the attitude of resistance to formal requirements that generally prevailed in the 1960's. On specific points related to police officer behavior, it should be noted that the current accreditation

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standards mandate a defense of life standard in the use of deadly force, a written policy governing the use of informants (Commission on Accreditation, 1988: Std. 42.1.8).

V. Summary: The New Rule-boun(;i World of Policing

The evidence reviewed here suggests that the working environment of policing has become increasingly bound by a network of rules limiting discretion and enhancing accountability for specific actions. In important respects these rules penetrate the "low-visibility" working environment of policing far more deeply than court rulings do.

These observations, however, raise a number of important unanswered questions about the efficacy of rules. With the exception of deadly force, the impact of the new rules on police behavior have not been adequately investigated--indeed, most have not been investigated at all. The deadly force evidence, however, is heartening: it suggests a pattern of compliance with the rules and fulfillment of their intended goals (Fyfe, 1979); Geller, 1982). The central questions concern not just the impact of rules but the larger working environment of policing. The conventional wisdom about that environment was fashioned in the mid-1960's (Skolnick, 1966). There is some reason to suspect that that environment has changed substantially over the past twenty to twenty-five years. New recruits enter policing with many of the "new" rules as established facts of life. u Also, the profile of the American police officer has changed substantially in that period, in terms of educational attainment, race and gender.

In conclusion, the evidence here suggests that Supreme Court's retreat from Warren Court precedents may not produce the rampant police lawlessness that some commentators fear. The process of administrative rulemaking, whilke stimulated by the Warren Court, has produced a number of important controls over critical police decisions. And this movement appears to have a momentum of its own. The political ramifications of this development are significant. For those seeking greater control over police behavior all may not be lost, regardless of the future direction of the court.

9 Recent research on Chicago narcotics detectives, for example, suggests that even those police officers most heavily affected by the exclusionary rule now accept (and in some cases value) it (Note, 1987).

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The future of control and accountability probably lies not through the high court but along alternative paths, the broadest of which appears to be administrative rulemaking.

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