Justice Without Trial: Law Enforcement in Democratic Society

Summary Table of Contents

2011 Foreword

Preface to the Fourth Edition

Detailed Contents

CHAPTER ONE

Democratic Order and the Rule of Law

CHAPTER TWO

The Setting, Method, and Development of the Research

CHAPTER THREE

A Sketch of the Police Officer’s Working Personality

CHAPTER FOUR

Operational Environment and Police Discretion

CHAPTER FIVE

The Confrontation of the Suspect

CHAPTER SIX

The Informer System

CHAPTER SEVEN

The Narcotics Enforcement Pattern

CHAPTER EIGHT

The Clearance Rate and the Penalty Structure

CHAPTER NINE

Police Attitudes Toward Criminal Law

CHAPTER TEN

Conventional Morality, Judicial Control, and Police Conduct

CHAPTER ELEVEN

The Working Police Officer, Police Professionalism, and the Rule of Law

EPILOGUE A

Contemporary Law Enforcement in a Democratic Society

EPILOGUE B

The Challenge of Crime in the 1990s

End matter: Author & Notes

About the Author, Photo

 Justice Without Trial

   Law Enforcement in Democratic Society

   Jerome H. Skolnick

     F O U R T H   E D I T I O N

Classics of Law & Society Series

    Quid Pro Books

 New Orleans, Louisiana

Smashwords edition. Copyright © 2011 by Jerome H. Skolnick. All rights reserved. No part of this book, other than as fair use or in quotation for reviews and the public press, may be reproduced or transmitted in any form or by any means, electronic or mechanical (including photocopy, recording, or any information storage and retrieval system), without permission in writing from the current publisher. Foreword copyright © 2011 by Candace McCoy.

Previously published in 1994 in the Third Edition by Macmillan College Publishing Company, New York. Copyright © 1994 by Macmillan. Earlier editions copyright © 1966 and 1975 by John Wiley & Sons, Inc.

Published in 2011 in the Fourth Edition by Quid Pro Books, at Smashwords.

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Publisher’s Cataloging-in-Publication

   Skolnick, Jerome H.

         Justice without trial: law enforcement in democratic society / Jerome H. Skolnick.—4th ed.

p.  cm. — (Classics of law & society)

Includes new preface and foreword.

Series: Classics of Law & Society.

ISBN: 9781610270663 (ePUB, Smashwords ed., 2011)

ISBN: 9781610278294 (hbk., 2015 ed.)

ISBN: 9781610270649 (pbk., 2011 ed.)

1. Criminal justice, Administration of—United States. 2. Police—United States. 3. Law enforcement—United States.  I. Title. II. Series.

KF 9223.S54  2011

345.73’05—dc20

[347.3055]

201193733

Cover design copyright © 2011 by Peter Holstein.

For Arlene, Michael, and Alexander

2011 Foreword

FIFTY YEARS LATER

Retrospectives offer wonderful opportunities to muse about times gone by and what they say about the future. This opportunity is especially sweet when it arises from an occasion such as the publication—this time even in digital form—of a new edition of a classic book written by a dear friend and mentor.

Justice Without Trial’s fourth edition arrives just a few months shy of its fiftieth anniversary, depending on how you count. The book was first published in 1966, but, as Jerry Skolnick mentioned in its chapter on research methodology, the study began early in the summer of 1962 (Skolnick 1966:30), and he had been germinating the ideas years before that. It is therefore accurate to say that the book provides an in-depth look at police, policing, and the rule of law as practiced half a century ago in the USA. (Well, not exactly the whole USA. He studied Eastville and Westville, which everyone who knows the work understood to be a large city in California near the University of California but not including it, and a comparable one on the East Coast that has one of New York’s metropolitan airports in it without being in the state of New York.)

Despite its age, Justice Without Trial is remarkably contemporary. The police subculture, the dynamics (or patterns, as Skolnick calls them) of drug law enforcement, the quasi-corrupt relationship that inevitably develops between police and informants, and above all the issue of the rule of law in operation, are as important to public life now as they were then. A careful re-reading of Justice Without Trial as both historical and contemporary inevitably invites then/now comparisons. What has happened since 1962 that confirms or contradicts what Jerome Skolnick said then? What might this teach us as we sail into the next fifty years?

Less justice and fewer trials. In my opinion, that is how to characterize the criminal justice system of 2011 compared to its operation fifty years ago. There is less justice because the tension between law and order that Skolnick described, and which he stated could be resolved only when order is maintained under law, has been resolved in the opposite direction. There definitely are fewer trials, indicating that the book’s emphasis on the operation and control of the discretion given to criminal justice professionals remains very much a problem—although today the worst problems of unbounded discretion have shifted from the police to prosecutors.

Justice Without Trial is about the rule of law in practice. It was written at a time when the local police were being held to account in local criminal trial courts with methods that had seldom been applied to state and local law enforcement: exclusionary rules. Skolnick studied search-and-seizure practices in action and explained how police were able to get what they wanted, often breaking the letter of the law, because vice cases were so low-level and the offenders so guilty that it was easy for police to find a pretext to investigate them, continue the intrusion until some criminality was found, and then make lawful arrests. Today, any rookie knows that the way to get an arrest is to build up to probable cause starting with any minor violation that could be seen to justify further investigation and eventual intrusion. Expired warrants, drinking in public, broken tail-lights—these broken windows become the justification for continued questioning until a manufactured reason for patdowns or car searches appears. The reason becomes probable cause, the courts do not question it, and the exclusionary rule will not operate because the evidence is deemed lawfully obtained. None of this is surprising. What was surprising about it in 1962 was that the police bothered at all to go through the motions of getting to probable cause. Today, it is standard operating procedure. Whether the rule of law is at work here is debatable. Does the Fourth Amendment constrain police discretion in such cases? It certainly standardizes it and educates police officers about how to present their evidence for possible court review. But constrain it? In low-level drug and prostitution cases, Skolnick showed, the rule of law is attenuated.

Today, the same can be said of low-level cases but also of serious cases. Skolnick’s work on drug enforcement showed that police could easily manufacture probable cause in low-level cases of possession and use, but for the big case of dealing or smuggling, they were careful to establish probable cause clearly. The rule of law did constrain them in their searches, although the informant system presented grey areas. (Police would take information from snitches, investigate based on them, but protect the snitch’s identity by backing up and finding ways to show that evidence had been found without relying on tips.) The police took these measures because they did fear that evidence would be suppressed otherwise.

Skolnick’s research was conducted when the exclusionary rule was newly-minted in Mapp v. Ohio, and Miranda was soon to follow. Since then, the U.S. Supreme Court has slowly dismantled them, culminating in Herring v. United States and Montejo v. Louisiana. The cops in Eastville and Westville can now claim that their illegal searches are made in good faith and so will result in no sanction (Leon v. United States, 1984; see also Epilogue B), or that the minor infraction they used to begin their march to probable cause, although erroneous, was a valid starting point because it was found in a state database (Herring v. United States, 2009). Although Skolnick did not study interrogations in Justice Without Trial, the Fifth Amendment exclusionary rule is germane to his rule of law argument. The police he studied were soon to be subjected to Miranda v. Arizona. Today’s detectives rely on Montejo v. Louisiana (2009), in which the U.S. Supreme Court upheld a conviction of a defendant who actually had a lawyer—a lawyer who was not called before the police took the defendant out on a trip to find the murder weapon. The reason this police behavior was acceptable is that the police Mirandized him anew when proposing the trip and they said he then waived the right to counsel—assertions that his lawyer hotly protested to no avail. The police said he wrote an inculpatory letter to the widow while on this ride to find the murder weapon (it apparently never was found), and the Supreme Court decided the letter would not be suppressed.

In short, it is difficult to talk about holding police accountable to the rule of law when that law itself has been nullifed. Police today, unlike those of 1962, are mostly unconstrained by the laws of criminal procedure, though search-and-seizure and interrogation caselaw provides a framework for them to regularize their work. (Skolnick recognized the dynamic: The police officer creates for himself a discretionary structure…the rule of law does not seem to be a matter of great concern…  [Skolnick 1966:111].) The reader may regard this as a radical statement, but it is difficult to imagine that the Fourth or Fifth Amendments have much power to restrain police activity if there is no sanction for their violation, and this is so for today’s big cases as well as the cases of minor seriousness that Skolnick studied. (See also Leo and Koenig 2010.)

A then/now comparison cannot avoid this topic, though it is possible that police today are held to the rule of law with devices other than the exclusionary rules. As the Rehnquist Court and its successor slowly rolled back the Warren Court’s due process revolution, federal trial courts began to hear an increasing volume of civil lawsuits against municipal police departments. The constitutional tort litigation is aimed at custom, policy, and practice of the police department and thus targets police policymakers, not individual officers. If police can be said to conform to the rule of law today, this litigation is probably more powerful in achieving that goal than the decimated exclusionary rules are. (McCoy 2010.)

As for fewer trials, this book was not primarily concerned with the courtroom. Nevertheless, Skolnick spent 200 hours with public defenders and many weeks with prosecutors, observing how criminal cases in 1962 emerged from policemen’s activity and went forward with evidence produced in their occupational subculture. (Yes, some things in the first edition sounded dated. Police were all men back then, and they were all white.* And, in his description of traffic enforcement, Skolnick noted that the third copy of any ticket is an IBM card.) Skolnick published his interpretation of these lawyers’ work in a different outlet (Skolnick, Social Control in the Adversary System, 1967), but there are a few jolting observations of court work in Justice Without Trial. For instance, the guilty plea rate in California in 1962 was 75%. ( Table 6-1.) As any student of plea bargaining knows, today it is 97%. Skolnick said that police discretion was of more concern because it is exercised in the stationhouse or in the apartments of people being searched, whereas prosecutorial discretion takes place at a later stage in the system, after the initial charge has been made public (Skolnick 1966:233-34), and is therefore more likely to be controlled. These then/now statistics put the accuracy of that observation into question.

Nevertheless, the majority of the conclusions in Justice Without Trial hold true and in fact were prescient. With the hindsight of fifty years, it seems almost silly to question whether there is such a thing as a police subculture, or that police justify illegal searches in their own minds by saying to themselves that they do this only to people they know to be guilty, or that the nature of police work requires its practitioners to be conventional and regard people who look or act abnormally—although perhaps not criminally—as symbolic assailants. These ideas have become so commonplace in the sociological and political understanding of policing that it is almost trite to restate them. Yet they must have come from somewhere in the first instance. They came from Justice Without Trial.

However, Skolnick’s primary objective in Justice Without Trial was to explore and explain the rule of law, as evidenced by its subtitle, Law Enforcement in Democratic Society. This concept has been less discussed in connection with this work, yet it is the heart of its inquiry into police practices. The book begins with a statement that the value conflicts of democratic society create conditions undermining the capacity of the police to respond to the rule of law. What a community regards as order seem[s] to be a variable and tend[s] to correspond to the requirements of different communities or institutions. (Skolnick 1966:6.) Varied social conditions bring varied conceptions of order. Here, although he does not say so, Skolnick is regarding order as a dependent variable. The independent variables that will affect it are the demands that politics make on it, the characteristics of the professionals and organizations charged with upholding it, and the law that prescribes it. (See also Scheingold 1984.) If the law steps aside and allows the enforcement professionals to define order, the nature of democracy will change. But if a robust law insists that order must step aside for occasional disorder—the political protester, the scruffy homeless person, the addict, the factually guilty criminal against whom probable cause to arrest cannot be found—then the nature of democracy will be different from that which the police would prefer.

Resolving the tension between law and order in favor of order under law is the heart of Justice Without Trial, and the book cogently describes the great difficulty of doing so when the police occupation is structured as it was in the 1960s. The law builds that structure, and Skolnick’s decision to study the vice squad and burglary and robbery detectives, rather than patrol officers or peace officers as he calls them, was made because vice and investigations operate under constitutional standards that more clearly show the tension between law and order. Skolnick showed that the professional craftsmen, which is how police view themselves, were able to responded to the various victimless crimes with different approaches molded but perhaps not much constrained by legal standards.

Bookmaking, for instance (that is, for younger readers who have never heard of this, the practice of taking bets and running a gambling business) inevitably led to police corruption. The police did not want to repress gambling because they did not regard it as morally wrong; they often placed a few bets themselves. Neither did some officers regard it as morally wrong to accept bribes from the bookmakers in return for not arresting them. Today, gambling is legal and we have new problems with it (Skolnick’s later book, House of Cards, presaged them), but police corruption stemming from gambling non-enforcement is seldom observed. Compliance with the rule of law against taking bribes was assured because a different law—the one that made bookmaking a crime—was effectively repealed. That is, a victimless (or consensual) crime was decriminalized.

Skolnick devotes entire chapters to enforcement of the laws against prostitution and against drug use. These laws similarly encourage police to push the boundaries of legality in enforcing them, because the drug or prostitution underworlds are moneyed and powerful and can stay that way by corrupting the honest cop. But Skolnick was not primarily concerned with the corruption issue in Justice Without Trial. He was concerned with the way that enforcement of these victimless crimes encourages police to violate the Fourth Amendment.

In the years since Justice Without Trial was first published, prostitution has mostly been legalized as long as the soliciting occurs on the internet, not on the street. In this field, the Fourth Amendment is scarcely at issue today because police do not seek to arrest many prostitutes (although enforcement against pimps and smugglers must continue to be vigorous and presumably relies on the same sort of informant system that Skolnick described in his observations of drug law enforcement). Drug law enforcement is the prime example of changes in the American political environment since 1962. We have fought the War on Drugs. Who won it? The police, but not because they successfully stopped drugs from being imported, smuggled, possessed, or used. Police won the War on Drugs because it allowed them and their supporters to roll back the constraints that criminal procedural law attempted to place around their discretion. In the zeal to suppress the disorderly addicts and the impoverished neighborhoods they live in, law enforcement and hardline politicians were able to wear down the Fourth Amendment. Today, instead of professional model policing or even community-oriented policing, we have intelligence-led policing in which huge amounts of data about people in unconventional pursuits or unruly neighborhoods are used to monitor their movements in public, through the device of stop-and-frisks based on minor infractions recorded in police databases. Skolnick predicted this:

The existence of a narcotics law provides police with an outlet for aggressive intelligence—one that would be closed if serious reforms were to be made in these laws. (Skolnick 1966:118.)

We can only wonder whether order under law as opposed to law subsumed to conventionality (to use Skolnick’s term for the policeman’s mindset) would be different today had the politicians and appellate court justices of the 1980s understood how the rule of law operates on the streets, which Skolnick so carefully observed. Read the book again and you will see it in a whole new light, which is all the light we have in 2011.

Candace McCoy

Professor

The Graduate Center and John Jay College

The City University of New York

Princeton and New York

February 2011

References

Leo, Richard A., and Koenig, K. Alexa, The Gatehouses and Mansions: Fifty Years Later, Annu. Rev. Law Soc. Sci. 6 (2010), 323-39

McCoy, Candace, How Lawsuits Improve American Policing, in Candace McCoy, ed., Holding Police Accountable (Washington, D.C.: Urban Institute Press, 2010)

Scheingold, Stuart A., The Politics of Law and Order: Street Crime and Public Policy (New York: Longman, 1984, rptd. Quid Pro, 2011)

Skolnick, Jerome H., House of Cards: Legalization and Control of Casino Gambling (Boston: Little Brown, 1978)

________ , Justice Without Trial: Law Enforcement in Democratic Society (New York: John Wiley and Sons, 1st ed., 1966)

________ , Social Control in the Adversary System, The Journal of Conflict Resolution 11: 1 (March 1967)

Cases

Herring v. United States, 555 U.S. 135, 129 S. Ct. 695 (2009)

Mapp v. Ohio, 368 U.S. 871 (1961)

Miranda v. Arizona, 396 U.S. 868 (1969)

Montejo v. Louisiana, 556 U.S. ____ , 129 S. Ct. 2079 (2009)

United States v. Leon, 468 U.S. 897 (1984)

NOTE TO THE FOREWORD:

* Skolnick described the cops of Eastville and Westville alike as racist white men. He observed them in 1962-63, just before a major race riot ripped Eastville apart, producing white flight and economic stagnation from which the city has yet to recover. Today, a significant proportion of police officers, in both Eastville and Westville and virtually all police departments nationwide, are people of color. (In New York City, police recruit classes over the past ten years have been majority non-white; among them, the cadets can speak over 200 languages.) Whether this diversity produces a better quality of policing on the street is a matter for wide discussion, but surely it is accurate to say that police hiring, like that of all employers, changed significantly after the Civil Rights Act of 1964 and corresponding court support for it. In subsequent editions of Justice Without Trial, Skolnick remarked upon this change and analyzed its meaning for the subculture of police. See below, Epilogues A and B.)

Preface to the Fourth Edition

The preface to this 2011 edition is, for its author, an occasion for rejoicing. It means that his book has retained some relevance over five decades. Part of the reason has to be that crime and the police have, since the 1960s, become a public preoccupation. Like the cowboy, the cop has emerged as a mythic figure in the panoply of American folk heroes. Indeed, the police drama has become a genre, eventually supplanting the western as a staple of television and the movies. At the time of the previous 1994 edition, in addition, the videotaped beating of Rodney King, followed by the Simi Valley acquittal, the Los Angeles riots, and the subsequent federal trial, appeared to have brought a renewed urgency to the question of what cops and their work are really like. Since then, we have lived through the O.J. Simpson murder trial, with its months-long parsing of police practice and racism, and 9-11 and Katrina, prompting reactive conceptions of security and appropriate governmental response. And the popular culture focus on law and order, and on the profession of policing, has continued with crime and prosecution dramas of that name, as well as such investigation procedurals as the CSI and NCIS franchises. Just last week, fully six of the top ten rated television programs in the United States were crime and investigation dramas.

In the second epilogue for the previous edition, I offered a sense of the contemporary issues and problems facing the Westville and other American police in the 1990s, especially regarding crime trends, the pressures and dilemmas of drug law enforcement, and the movement toward community-oriented policing. In this edition’s Foreword, criminologist Candace McCoy notes the continuing relevance of concerns about crime and the police function in a democratic society, as well as the U.S. Supreme Court’s steady march of its precedential lemmings.

Still, Justice Without Trial was never intended to be a book about any era of policing. When I wrote it nearly five decades ago, I tried to examine persistent issues of criminal law enforcement and the enduring dilemmas of police in a democratic society. It was not meant to be a snapshot of one time nor merely an evaluation of one, or two, places.

In the preface to the first edition, I wrote a passage to highlight the book’s larger concerns—and would scarcely change a word today:

Criminal or related proceedings in which an individual may lose his or her reputation or property are the principal indicators of the character of a society. More than that, the very idea of process—of a disinterested, fair and intelligent hearing when claims of right are presented—constitutes the underlying idea of a society that subscribes to governance by the rule of law. This book is a sociologist’s attempt, through a variety of observational techniques, to understand how such governance may be enhanced or impeded. By examining the day-to-day behavior of police and other legal actors, I have tried to learn how those who are charged with enforcing criminal law in a constitutional democracy come to interpret rules of constraint—thereby giving these life and meaning—and analyze the practical dilemmas they face.

As I reread the body of the text for subsequent editions, I noted that some details, especially of language, may have changed, but major issues discussed in the 1960s continue to invite observation and reflection, despite enormous social change. For example, there will always be conflict between the imperatives of order maintenance and constraints on police conduct. Cops will always exercise low-level discretion—influenced both by the culture of policing and the pressures and understandings of the organizations within which they work. There will always be racial and gender tensions—and norms of acceptable behavior in response to these—in police departments. Cops will continually experience and act out conflicting moral codes as well as develop responses to legal restrictions imposed by courts. The criminal justice system is embedded in a formidable text of written laws and judicial interpretations. In practice, the laws are mediated by the subjective values, perceived organizational needs, and a continuing drama of human personalities and their aspirations.

As I wrote in the preface to the first edition, I have tried to be as objective and impartial as possible, to see the world from the perspective of the police and of the policed. But this book was never intended to be either value free or utopian. Like death and taxes, crime and crime control are a feature of every society, and we must make our choices. Even today, it remains clear that there is an urgent imperative to understand the social foundations of crime control and of the rule of law and the police in democratic societies. That remains the dominant subject matter of Justice Without Trial.

~ ~ ~

Over the years I have accumulated enormous debts to practitioners and scholars. The research for this book began at Yale Law School and was especially encouraged by Abraham Goldstein, Harold Lasswell, and Richard D. Schwartz. When I moved to Berkeley, where most of the research was completed, the Center for the Study of Law and Society, headed by Philip Selznick and Sheldon Messinger, became an intellectual home, influenced especially by Phil Selznick’s writings on the rule of law and Sheldon Messinger’s advice on reconceptualization. At Boalt Hall (the University of California School of Law), Professors Edward L. Barrett and Sanford Kadish offered considerable guidance. They were joined over time by such Berkeley colleagues and friends as Malcolm Feeley, Bob Kagan, Robert Post, Jonathan Simon, and Jeremy Waldron.

I retired from U.C. Berkeley’s Law School (Jurisprudence and Social Policy) in 1997—not because I was tired of teaching, but because the University of California’s retirement program made an offer so generous, a lovely golden parachute, that I and about one hundred other senior professors could scarcely refuse it.

As the President of the U.C. system explained it to me, We can hire two assistant professors at one senior professor’s salary—and your retirement income comes out of a different source. So I jumped, landing first as a Visiting Distinguished Professor at John Jay College of the City University of New York.

I was invited, at the time, to address a National Convention of Police Chiefs, and I reminded them of the difference between old soldiers—who General MacArthur famously said never die but merely fade away—and old police chiefs, who retire, find a new job, and double dip. I was following the example, I said, of old police chiefs.

A year later New York University Law School asked me to be an affiliated faculty member. I’ve taught seminars on regulating vice and on policing, co-directed the Center for Research in Crime and Justice—although Jim Jacobs does all the real work—and have attended no faculty meetings. (The latter has proved to be a great deprivation after 40 years of faculty meetings, but I have managed to adjust.)

A major part of NYU Law School’s success is attributable to its administration—Dean, now NYU President, John Sexton and Dean Ricky Revesc, who recruit great faculty and pamper them; and to the quality of  the students, which has gotten better and better, as the school’s reputation has grown.

NYU Law has a criminal law faculty without peer. My closest pals, Jim Jacobs and David Garland, have brightened my personal and intellectual life beyond measure. Jim is the captain of the criminal law ship, organizing weekly lunches and monthly dinners and lectures. Other luminaries and friends include Steve Schulhofer, Rachel and Tony Barkow, Erin Murphy, Holly Maguigan, Bryan Stevenson, and the Thompsons: Kim Taylor and Tony.

Jim organizes weekly lunches of 30 or more, sponsored by the inimitable Ron Goldstock, with speakers arranged by Jim—whose energy seems boundless. He also organizes a monthly dinner and lecture series, sponsored by Jack Hoffinger, a former prosecutor who, with his children, leads a major white collar criminal law firm.

So why am I retiring? I’m not retiring from NYU Law School. I plan to attend all criminal justice events. But it’s time to travel in the fall and spring semesters while I am still on this side of the grass and can still walk. Joining me will be the beautiful and youthful Arlene Skolnick, my wife of more than half a century, who is truly my best friend and only occasionally severe critic.

I have been blessed, over the years, with outstanding and achieving students, none more so than Alan Childress (Conrad Meyer III Professor, Tulane Law School) and his accomplice, Candace McCoy (Professor, The Graduate Center and John Jay College, CUNY). They had the idea for this edition, and did the work to put it together. They have my warmest thanks and appreciation.

The first edition was dedicated to Arlene and Michael. Alexander was added to the second edition as he was added to the family. The third edition was also dedicated to the three of them. I am grateful to be able to say that this, the fourth edition, is once again dedicated to Arlene, Michael, and Alexander.

Jerome H. Skolnick

Co-Director, Center for Research in Crime and Justice,

New York University School of Law,

and

Claire Clements Dean’s Chair Emeritus,

University of California at Berkeley School of Law

New York, New York

March 2011

Detailed Contents

This table is included in ebook editions to convey the overall organization and for continuity with other editions and formats. A linked Summary Table of Contents is found at the beginning of this ebook.

2011 FOREWORD

PREFACE

CHAPTER 1  Democratic Order and the Rule of Law

Law and Order: The Source of the Dilemma  

Conceptions and Applications: The Dilemma Complicated

The Seclusion of Administration: The Dilemma’s Setting  

Law as an Enterprise  

Law Enforcement in a Democratic Society  

CHAPTER 2   The Setting, Method, and Development of the Research

The Setting of the Study

The Action Perspective  

The Advantage of an Overview

Development of Data Collection

Ethical Issues

Conclusion

CHAPTER 3  A Sketch of the Police Officer’s Working Personality

The Symbolic Assailant and Police Culture

Social Isolation  

Police Solidarity  

Police Solidarity and Danger  

Social Isolation and Authority

Correlates of Social Isolation  

A Comparative Glance at Police Role and Culture  

Cognitive Similarity and the Rule of Law  

Conclusion  

CHAPTER 4  Operational Environment and Police Discretion

Automated Justice: Parking Violations  

Traffic Warrants: The Culmination of Mass Production  

Traffic Warrant Enforcement  

The Racial Bias of Police  

Racial Prejudice and the Warrant Police Officer  

Discretion and Occupational Environment  

Conclusion  

CHAPTER 5  The Confrontation of the Suspect

Moving Violations: Prosecutorial Routine

The Modification of Routine: Police Involvement

The Police Officer and the Prostitute  

Behavior Patterns of Prostitutes

Police Enforcement Patterns  

Enforcement, Police Statistics, and Prostitution Patterns  

The Prostitute as a Symbolic Assailant

Conclusion

CHAPTER 6  The Informer System

The Police Officer as Complainant  

The Police View of the Narcotics Criminal  

The Informer in Narcotics Control

The Informer’s Payoff

The Payoff According to Type of Crime

Assets of Narcotics and Burglary Detectives

Interpersonal Rewards

Protection of the Informant’s Criminal Status

Criminal Discovery and the Informer System  

Summary and Conclusions  

CHAPTER 7  The Narcotics Enforcement Pattern

Routine Activity and the Petty Informant  

Setting Up a Good Pinch  

Creating an Informant  

Trial by Police

The Big Case

Summary and Conclusion

CHAPTER 8  The Clearance Rate and the Penalty Structure

The Clearance Rate  

Categories of Clearance  

Clearance Rates and the Administration of Justice  

Criminality as a Commodity for Exchange

Summary and Conclusions  

CHAPTER 9  Police Attitudes Toward Criminal Law

Problems of Obtaining Evidence

The Police Officer’s View of Criminal Justice  

Pleading Out Prostitution Cases

Administrative Bias of the Craftsman

The Quasi-Magisterial Role of the Prosecutor

Conclusion

CHAPTER 10  Conventional Morality, Judicial Control, and Police Conduct

Some Consequences of Enforcing Conventional Morality

The Exclusionary Rule  

The Police Officer’s View of the Exclusionary Rule

Police Work Under the Exclusionary Rule  

Police Culture and Legal Rules

Police Attitudes Toward the Judiciary

Summary and Conclusion

CHAPTER 11  The Working Police Officer, Police Professionalism, and the Rule of Law

Occupational Environment and the Rule of Law  

Professionalism and Police Conduct  

The Community and Police Conduct  

Conclusion

EPILOGUE A   Contemporary Law Enforcement in a Democratic Society

The Asphalt Cowboys  

Eastville and Westville  

Westville and America: Major Developments  

Vice Control  

Criminal Investigations  

Persistence and Change in American Policing  

EPILOGUE B   The Challenge of Crime in the 1990s

Drugs and Crime  

Drugs and the Exclusionary Rule  

Police Professionalism and Bureaucratic Control  

The War on Drugs  

The Dilemmas of Law Enforcement  

Corruption  

Community-Oriented Policing  

ABOUT THE AUTHOR

FOOTNOTES

Justice Without Trial

CHAPTER ONE

Democratic Order and the Rule of Law

For what social purpose do police exist? What values do the police serve in a democratic society? Are the police to be principally an agency of social control, with their chief value the efficient enforcement of the prohibitive norms of substantive criminal law? Or are the police to be an institution falling under the hegemony of the legal system, with a basic commitment to the rule of law, even if this obligation may result in a reduction of social order? How does this dilemma of democratic society hamper the capacity of the police, institutionally and individually, to respond to legal standards of law enforcement?

Such questions have posed a predicament since the introduction of the London metropolitan police in 1829. Charles Reith, in his book The Police Idea,[1] described the hostility of early nineteenth-century England even to the idea of developing a metropolitan police force out of fear that the notorious activities of the pre-Revolutionary French police would be duplicated. He cited a parliamentary report of 1818 that considered the police idea and recommended against the establishment of a police force:

The police of a free country is to be found in rational and humane laws—in an effective and enlightened magistracy—and in the judicious and proper selection of those officers of justice, in whose hands, as conservators of the peace, executive duties are legally placed, but above all, in the moral habits and opinions of the people, and in proportion as these approximate towards a state of perfection, so that people may rest in security; and though their property may occasionally be invaded or their lives endangered by the hands of wicked and desperate individuals, yet the institutions of the country being sound, its laws well adjusted, and justice executed against offenders, no greater safeguard can be obtained without sacrificing all those rights which society was instituted to preserve.[2]

Reith, who is pro-police and pro-Peel, may have exaggerated somewhat the degree of opposition to the police. Other authors also interpreted the period as one of considerable hostility to a formal institutionalization of police. Mather, for example, pointed out that historians, like Whigs, are fundamentally antipolice.[3] Given such opposition, therefore, before introducing his Bill for Improving Police in and near the Metropolis in 1829, Peel laid a formidable groundwork. A. A. W. Ramsay described it as follows:

Peel, with his usual caution, brooded for ten years over the problem before he undertook to solve it. In 1826 he began to collect evidence for the purpose of comparing crime with population. In 1828 he secured the appointment of a Parliamentary Committee to investigate the subject—the last of four successive Committees in the past twenty-five years, but the first to do valuable work. He had at first intended a measure which should create a police force throughout the kingdom: he ended with a modest scheme, whose operation was confined to London, and at first to a limited number of parishes.[4]

To buttress his argument for the necessity of a police force, Peel based his claims on the need for public order. Citing population statistics from London and Middlesex, he argued that crime was dramatically increasing in this early period of industrial revolution, and increasing at a faster rate than population. In the period of 1821 to 1828, population had increased 15-1/2 percent, while criminal committals had risen by 41 percent. Deploring the existence of an army of trained and hardened criminals in London and Middlesex, Peel announced that not less than one person in every three hundred and eighty-three had been convicted for some crime or other in 1828,[5] without mentioning, although he was fully aware of the fact, that the number of acts considered criminal was so large, and the conditions of the working classes so onerous, that the figures he cited were hardly shocking.

In making this appeal for more efficient controls over crime, Peel was quick to add that he was confident they would be able to dispense with the necessity of a military force in London for the preservation of the tranquility of the metropolis,[6] an assurance he could hardly dispense with considering the strength of his opposition. The early conception of police accountability to the rule of law is a tradition that has continued to the present day. Maitland reaffirmed it in 1885 when he wrote in a book entitled Justice and Police:

There is a large body of rules defining crimes and the punishment of those who commit them, rights and remedies of those who are wronged, but there is also a body of rules defining how and by whom, and when and where, rules of the former kind can be put in force. . . . It will little avail us that our law about rights and remedies, crimes and punishments, is as good as may be, if the law of civil and criminal procedure is clumsy and inefficient.[7]

This same tradition of the hegemony of the rule of law is eloquently stated in the 1962 Royal Commission report in a refutation of the argument that a national police force would lead to the development of a police state in Great Britain. The commission argued:

British liberty does not depend, and never has depended, upon any particular form of police organization. It depends upon the supremacy of Parliament and on the rule of law. We do not accept that the criterion of a police state is whether a country’s police force is national rather than local—if that were the test, Belgium, Denmark and Sweden should be described as police states. The proper criterion is whether the police are answerable to the law and, ultimately, to a democratically elected Parliament. It is here, in our view, that the distinction is to be found between a free and a totalitarian state. In the countries to which the term police state is applied opprobriously, police power is controlled by the government; but they are so called not because the police are nationally organized, but because the government acknowledges no accountability to a democratically elected parliament, and the citizen cannot rely on the courts to protect him. Thus in such countries the foundations upon which British liberty rests do not exist.[8]

The theory of the police in the United States mirrors the conflict between order and legality found in English conceptions of the police, but characteristically American features add complexity. In reading about the American police, especially through the period of the 1930s, one feels that constitutional issues of legality have been almost too remote to be of immediate concern. Not that American police have conformed to the rule of law. Rather, they have seemed so far out of line that a writer summarizing a major American study of police practices entitled his book Our Lawless Police. The study, completed in 1931 by the National Commission on Law Observance and Enforcement (the Wickersham commission), found practices so appalling and sadistic as to pose no intellectual issue for civilized society.[9] It is one thing to talk quietly to a suspect without counsel and artfully, perhaps by deceit, persuade the suspect to make a self-incriminating statement; it is quite another to hang a suspect by the heels out of a window from a great height, or to beat a confession out of the suspect by putting a telephone book on his or her head and pounding the book with a blackjack so it does not leave marks. Both techniques may be illegal, but responsible police officials would not publicly support blackjack interrogation. On the other hand, interrogation of suspects without the presence of counsel and even deceptive interrogation are standard professional police techniques.[10]

For many municipal police forces in the United States, the observer’s question is, therefore, not whether police operate under the constraints of due process of law, but whether they operate within the bounds of civilized conduct. In the old-fashioned police department, riddled with political appointees and working hand in hand with the rackets, a reformer is not concerned primarily with the niceties of constitutional rights. When the citizenry is facing the arbitrary use of club, blackjack, and gun,[11] the police reformer’s problem is to reduce gross brutality, which seems traditionally to have been associated with corruption. Given this situation, it is not surprising that the solution to the police problem in America has been frequently conceived as changing the quality of people, rather than the philosophies of policing. Fosdick wrote in 1920, in a characteristically American passage on police reform:

We are concerned with facts and conditions and not with theories or labels. It is not a matter of democracy, of caste, or birth, or