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The Good Cop: Knowing the Difference Between Lawful or Effective Policing and Rightful Policing -- And Why It Matters, 54 William & Mary Law Review 1865 (2013)

Abstract

There are two dominant ways to evaluate the police. The first is

whether their conduct comports with the law. The second approach

assesses whether they are effective crime fighters. The legal

domain is the province of lawyers and law professors. Their briefs

and scholarly writings depend usually on interpretations of constitutional

law and assessments of police conduct with reference to

that law. Sometimes other bodies of law, such as police agency

administrative regulations, civil lawsuits, or the very law that

authorizes police to act in the first place—substantive criminal

law—are the subject. But the assumption no matter the body of law

is that more lawfulness is the ideal goal. Effectiveness at crime

fighting has become the other police evaluation metric. This

yardstick is of newer vintage than lawfulness, and those who wield

it are primarily social scientists—criminologists and economists

—who attempt to find causal connections between various police

practices and crime statistics. The theoretical model these social

scientists employ typically assumes that offenders are rational

actors who are persuaded to desist from criminal behavior when the

prospect of formal punishment outweighs the benefits of criminal

behavior.

This Essay will present a third view called "rightful policing."

Rightful policing attempts to account for what people say that they

care about when assessing police agent behavior specifically and

police agencies in general. It is different from lawful policing and

efficient policing in at least two ways. First, rightful policing does

not depend on the actual lawfulness of police conduct. Instead,

rightful policing depends primarily on the procedural justice or

fairness of police conduct. Second, rightful policing does not depend

on an assessment of police as ever more effective crime fighters,

although it turns out that rightful policing often leads to more compliance

with the law and therefore lower crime rates. Additionally,

and critically, it is likely this third way helps us move toward police

governance that is substantially, as opposed to rhetorically, democratic.

Date of Authorship for this Version

2013

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