David Alan Sklansky

SEEING BLUE: POLICE REFORM, OCCUPATIONAL CULTURE, AND COGNITIVE BURN-IN

For over half a century, police reform in the United States has been guided by a broadly shared set of assumptions about the nature of the police subculture and its central importance in shaping the behavior of the police. Those assumptions - that police officers think alike; that they are paranoid, insular, and intolerant; that they intransigently oppose change; that they must be rigidly controlled from the outside, or at least from the top - made a good deal of sense in the 1950s, 1960s, and early 1970s, but make less sense today. Nonetheless lawyers, scholars, and reformers still tend to think of the police rank-and-file as sharing a monolithic occupational mindset, and still tend to treat this mindset as the chief impediment to law enforcement that is fairer, more effective, and more humane. This view of the police makes it hard to see differences between officers, new complexities of police identity, and dynamic processes within the police workforce. It has led us to neglect some important avenues of reform, by diverting attention from the internal design of police departments, the differences between officers, and the possibility of giving rank-and-file officers a larger, collective role in the shaping of their work. It has diverted attention, too, from certain emerging challenges in policing, including the possibility that the recent, dramatic diversification of police workforces may be stalling, and the dangers posed the expansion of private policing and its characteristic culture of managerialism.

Cocaine, Race, and Equal Protection

Most agree that equal protection should guard against laws that disproportionately burden members of a disempowered minority group because of majority prejudice. In this essay, Professor Sklansky argues that equal protection doctrine in its current form fails to achieve this objective. Professor Sklansky reaches this conclusion through an examination of the manner in which courts have upheld the constitutionality of the mandatory federal sentences for trafficking in crack cocaine. Those sentences are far harsher than the penalties federal law prescribes for trafficking in powder cocaine, the precursor of crack cocaine. Professor Sklansky argues that current equal protection doctrine leads courts to ignore troubling evidence that the crack cocaine sentences are so severe at least in part because, unlike the powder cocaine penalties, they are imposed almost exclusively on black defendants. He suggests that an excessive insistence on doctrinal consistency and simplicity has blinded equal protection law to important issues of racial injustice, including the danger that the crack cocaine penalties are the product of unconscious racism. In order to foster a gradual, case-by-case improvement of equal protection law, Professor Sklansky calls for greater toleration of doctrinal disorder.

The role of the rank and file in police reform

Police departments today are more attractive places than they used to be for experiments in participatory management and other forms of workforce empowerment, but experiments of this kind in law enforcement remain disappointingly rare. The articles in this special issue, drawn from an international, cross-disciplinary conference on ‘police reform from the bottom up,’ highlight the potential benefits of giving rank-and-file officers a larger collective voice in the shaping of their work, as well as some of the difficulties of doing so, and the conditions under which it is most likely to succeed.

Traffic Stops, Minority Motorists, and the Future of the Fourth Amendment

This article discusses four recent Supreme Court decisions involving vehicle stops: Whren v. United States, Ohio v. Robinette, Maryland v. Wilson, and Ornelas v. United States. Collecively these reveal a strong, new consensus on the Court about the proper application of the Fourth Amendment. This consensus results not from a settled body of doctrine but rather from shared, largely unspoken understandings -- understandings that heavily favor law enforcement and that, more troublingly, disregard the distinctive grievances and concerns of minority motorists stopped by the police. In ways the recent vehicle stop cases help to illustrate, this disregard is deeply embedded in the structure of current Fourth Amendment doctrine, and it seriously constrains the doctrines growth.

Voices from below: unions and participatory arrangements in the police workplace

Taylor and Francis Ltd GPPR_A_308289.sgm 10.1080/15614260802081238 Police Practice & Research: An International Journal 561-4263 (pri t)/1477-271X (online) Original Arti le 2 08 & Francis 90 000May 2008 Mon queMarks ARKS@ukz .ac.za; monique.marks@a u.edu.au In October 2006, Boalt Hall School of Law at the University of California, Berkeley, hosted an international, multidisciplinary roundtable on ‘Police Reform from the Bottom Up.’ This unprecedented gathering, co-sponsored by the Berkeley Center for Criminal Justice, the Center for the Study of Law & Society, and the Regulatory Institutions Network at Australian National University, provided an opportunity for policing scholars, police unionists, representatives of identity-based police organizations, and police executives to exchange ideas about the role of rank-and-file officers in the ongoing process of police reform.1 Some participants in the Berkeley roundtable have argued for years or even decades that rank-and-file police officers should be given a greater collective voice in shaping the nature of their work. Most often the argument has sounded in management theory: participation in departmental decision-making will make officers more engaged and more committed, will lessen their opposition to reform, and will infuse managerial judgments with localized, hands-on knowledge of the day-to-day realities of policing. But sometimes the argument has sounded in civics: police are citizens and should be awarded the same rights as other citizens; police are most likely to respect and protect citizen rights if they themselves are afforded those rights – not only rights to speech and free association, but also rights to bargain collectively, and to fair and impartial adjudication of disciplinary allegations and workplace grievances. Democratic policing, in short, has been linked to a measure of workplace democracy for police officers (Broderick, 1977, p. 206; Sklansky, 2005, pp. 1774–1778). That linkage has never achieved anything close to mainstream acceptance, either within policing or among scholars of policing. The dominant assumption in policing, and in policing scholarship, is and always has been that good policing, and effective police reform, requires strong, top-down management. The Berkeley roundtable was purposely comprised of academics and practitioners who shared at least some skepticism of that assumption, but not all participants were equally resolute about increasing the individual and collective rights of the police. Nor were all the participants equally convinced about the possibility for reform from below or even from within police organizations. There was skepticism voiced, too, about the capacity for police unions to be forces for reform, rather than obstacles. For their part, some of the police unionists at the roundtable criticized existing policing scholarship as uninformed and unnuanced. This special issue of Police Practice and Research contains a selection of five papers that were presented at the Berkeley roundtable. The theme of this special issue is police unionism, police labor rights, and participatory management. This issue, very much in the

Too Much Information: How Not to Think About Privacy and the Fourth Amendment

Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, by the proliferation of technological surveillance, and by the arrival of Big Data. But the reduction of privacy to control over information has made it difficult to think sensibly about the distinctive threats posed by government searches, and it is partly to blame for the growing and unwarranted idea that the Fourth Amendment should be decoupled from privacy - an idea variously motivated by a belief that the concept of privacy is meaningless, by the fear that privacy is dead or dying, and by a sense that the main threats to privacy today are orthogonal to the chief dangers posed by law enforcement. Search and seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy’s longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy - privacy as refuge - should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.

Hearsay's Last Hurrah

The Supreme Court’s recent reinterpretation of the Confrontation Clause – in Crawford v. Washington, Davis v. Washington, Giles v. California, and Melendez-Diaz v. Massachusetts – has been praised for decoupling the Sixth Amendment from hearsay law. In reality, though, Crawford and its progeny have woven the hearsay rule into constitutional analysis more tightly than ever. The hearsay rule has long been in retreat throughout the common-law world, and the factors fueling that retreat are likely, ultimately, to weaken the rule in the United States, as well. But for now Crawford is providing hearsay with its last hurrah – at least with respect to evidence introduced against a criminal defendant. It is sometimes suggested that civil-law countries are warming to the hearsay rule, just as common-law countries are growing tired of it. That is not quite right. In recent decades civil-law countries, particularly in Europe, have bolstered the right of criminal defendants to question their accusers in court or to have them questioned by magistrates. But this is a procedural right, not a rule of evidence: it does not exclude statements, but simply provides an opportunity to challenge them. If questioning the accuser is impossible, because – for example – the accuser is no longer alive, no country but the United States excludes the evidence, except perhaps in the most extraordinary of cases. America’s strong version of the hearsay rule is more and more a global anomaly, and he Crawford line of cases is entrenching that that anomaly, at least for the short term. That should give us pause, for at least three reasons. First, the hearsay rule has earned its unpopularity. It excludes too much probative evidence with too little justification. This is especially true of the uncompromising, eighteenth-century version of the hearsay rule the Supreme Court has now read into the Sixth Amendment. Second, by treating the Confrontation Clause as, first and foremost, a codification of eighteenth-century evidence rulings, the Crawford line of cases diverts attention from dimensions of confrontation not captured by the hearsay rule – dimensions that may grow increasingly important as scientific evidence plays a larger and larger role in criminal prosecutions. Third and finally, by constitutionalizing the hearsay rule, but only as it applies to evidence introduced against criminal defendants, Crawford threatens to impede the cross-fertilization between the doctrines governing out-of-court statements in criminal cases and the parallel rules in civil cases.