Authors: Tracey Meares
May 1, 2000
Wiener Center for Social Policy, John F. Kennedy School of Government
Our purpose in this article is to anticipate the decline of certain prominent doctrines of criminal procedure -- in particular, the constitutional standards used to evaluate discretionary community policing. The need that gave birth to the existing criminal procedure regime was institutionalized racism. Law enforcement was a key instrument of racial repression, in both the north and the south, before the 1960's civil rights revolution. Modern criminal procedure reflects the Supreme Court's admirable contribution to eradicating this incidence of American apartheid. Supplanting the deferential standards of review that had until then characterized its criminal procedure jurisprudence, the Court, beginning in the 1960's and continuing well into the 1970's, erected a dense network of rules to delimit the permissible bounds of discretionary law-enforcement authority. Although rarely couched as such, the unmistakable premise of these doctrines was the assumption that communities could not be trusted to police their own police because of the distorting influence of racism.
However, the political revolution that's now remaking urban law enforcement will likely be the occasion for the current doctrine's demise. From Los Angeles to Dallas, from Chicago to New York City, cities throughout the nation are rediscovering curfews, anti-loitering laws, order-maintenance policing, and related law-enforcement strategies. On the surface, these community policing techniques bear a striking resemblance to the ones that communities used to reinforce the exclusion of minorities from the nation's political life before the 1960's. But there is a critical difference in political context. Far from being the targets of these new law-enforcement strategies, inner-city minority residents are now very often their primary sponsors. Flexing their new-found political muscle, these citizens are demanding effective law enforcement. They support discretionary community policing both because they believe this strategy will work -- a conviction supported by the work of leading criminologists -- and because they see this form of law-enforcement as morally superior to the regime of draconian punishments that has characterized American criminal law since the 1970's. In short, many of those who support discretionary policing perceive it as a less harmful substitute for massive imprisonment.
Thus we believe there is a coming crisis of criminal procedure. Our goal in this article is to illuminate its contours and to identify just what it will take to surmount it. In doing so we will emphasize the special role of sociological contexts and norms to highlight the special relevance of jurisprudential change to the youths who are too often caught up in the criminal justice system. It is our contention that the changes in jurisprudential thinking that we suggest here are liberty enhancing rather than liberty constraining for inner city youth when considered against the background of the status quo.
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