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Nirej Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminol. 1171 (2012).

For observers of the police, an arrest is a black hole of decision-making.  I don’t mean the official reason for an arrest, since a legal basis can almost always be found in the vast criminal codes of most American jurisdictions.  Rather, the mystery lies in the “real” reason for the arrest, this particular exercise of police discretion.  Why this person, and not that one?  Why an arrest, rather than a citation, a warning, or ignoring the problem?  Why arrest on this street corner, and not another one?  Even if you could interview the arresting officer, it’s unlikely you’d get the full story.  Good policing usually involves a mix of training, street smarts, and experienced-based hunches.  Unsurprisingly, defendants often challenge the bases of these choices.  Those police discretion cases that have been decided by the Supreme Court are striking in two respects.  First, the Court has decided to curb police discretion only in the broadest sense; if any substantive law permits arrest, so too does the Fourth Amendment.  Second, as Nirej Sekhon points out in his article Redistributive Policing, the Court has focused nearly exclusively on the individual officer.  Yet it is police departments, which mandate policies and manage their rank and file, that deserve equal attention and, when warranted, blame.

The role of police departments in shaping arrest decisions is considerable.  While top brass can’t micromanage a cop’s split second judgment on the beat, police administrators can set priorities and dictate changes that have enormous practical consequences.  A familiar example is the implementation of quality of life policing in New York City in the early 1990s.  With William Bratton newly installed as the head of the New York City Transit Police, Transit cops tackled the rampant crime and disorder of the city’s subways with a radically different approach.  Transit cops–and later those in the NYPD–were directed to enforce misdemeanor laws that they had previously dismissed as minor, such as public urination, fare evasion, and public drinking.  To hear the NYPD tell it, this was the beginning of the city’s Cinderella story that led to a dramatic crime drop and transformed grimy dens of vice like Times Square into tourist destinations worthy of Disneyland.

While the link between New York City’s crime drop and policing may be disputed, the role of departmental policy in changing officer discretion is not.  The NYPD itself changed some longstanding assumptions about basic street policing.  First, the department directed cops to enforce specific misdemeanor crimes aimed at improving the quality of life.  Second, the department dramatically increased the number of arrests cops were to conduct for these crimes, crimes that might previously have gone ignored or would have received only a summons.  (For instance, by 1996, the department aimed to double the number of arrests for quality of life offenses.  Clifford Krauss, New York Times, Mar. 5, 1996.) Finally, the department made special efforts to focus on places deemed problem areas, such as Washington Square Park and Times Square.  As Professor Sekhon points out, these three discretionary changes–what he terms enforcement priority, enforcement tactics, and geographic deployment–only happen when decisions are made at the top.

From the police point of view, such arrest policies make good sense.  Negotiating, advising, and reprimanding are valuable policing skills, but they are difficult to capture in a data set. Arrest data represent a quantifiable demonstration of “doing something” in the face of a crime problem.  (Indeed, as Sekhon points out, arrest numbers drive the “occupational success” of NYPD officers in a quality of life enforcement regime.)  Arrest numbers were central to the crime control strategy meetings then-Commissioner Bratton instituted at the NYPD that pushed down accountability to precinct commanders.

Yet these departmental decisions can distribute arrests unfairly and probably with more far-reaching consequences than the decisions of any single officer.  As Sekhon argues, too often these discretionary actions result in burdening poor minorities disproportionately.  In 2011 alone, the NYPD arrested more than 50,000 people, most of them African-American or Hispanic, for low level marijuana possession.  And for many of these, arrest, even without conviction, unleashed a host of personal crises: lost jobs, public housing termination, and family court problems (Brent Staples, New York Times, April 28, 2012).

Having clearly shown that departmental discretion can drive inequality, Sekhon argues that arrests that result from these departmental choices should be thought of in terms of distributive justice.  If police managers set arrest policies, these managers must take into account both the benefits and burdens of any particular policing choice.  Specifically, equitable arrest policies should result in arrests made “in proportion to the rate of specific criminal misconduct in specific areas,” as well as avoiding choices based on “highly subjective, impressionistic criteria such as the ‘disorderliness’ of a neighborhood” (p. 1220).  These outcomes require, according to Sekhon, improved data collection and the involvement of prosecutors and courts.

By highlighting discretionary decisions made at the departmental level, Sekhon makes an important contribution to those who follow the police.  I’m perhaps less sanguine about the prospect of convincing courts and prosecutors to take up the cause, but there are many other actors, particularly in a time of internet journalism and activism, capable of influencing departmental choices.  Nor am I about to jettison my concerns about the suspect decisions individual cops make on their own.  But as Sekhon reminds us, police departments have their own distinct role in shaping just outcomes.

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Cite as: Elizabeth Joh, Police Discretion? It’s the Department, Stupid., JOTWELL (May 11, 2012) (reviewing Nirej Sekhon, Redistributive Policing, 101 J. Crim. L. & Criminol. 1171 (2012)),