NCJ Number
51899
Journal
University of Pennsylvania Law Review Volume: 125 Issue: 6 Dated: (JUNE 1977) Pages: 1167-1181
Date Published
1977
Length
15 pages
Annotation
THE THESIS THAT THE USE OF RULEMAKING BY THE POLICE TO LIMIT THE SCOPE OF SUBSTANTIVE CRIMINAL LAW IS NOT CONSISTENT WITH THE THEORY OF GOVERNMENT IN THE UNITED STATES IS ANALYZED.
Abstract
THE ARTICLE CONTENDS THAT SUBSTANTIVE RULEMAKING BY THE POLICE SHOULD PLAY NO PART IN EFFORTS TO REDUCE THE INCIDENCE OF ARBITRARY POLICE ACTION AND THAT THE SOLUTION TO ARBITRARY POLICE DECISIONMAKING SHOULD BE PROVIDED BY LEGISLATIVE BODIES. THE CRITIQUE OF THE ARTICLE STATES THAT MOST SELECTIVE ENFORCEMENT POLICIES ARE MADE BY PATROLMEN WITH INSUFFICIENT GUIDANCE FROM TOP OFFICERS, THAT THE UNEVENNESS OF POLICIES CAUSES UNEQUAL JUSTICE, THAT POLICIES SHOULD BE BASED ON STUDIES BY QUALIFIED PROFESSIONALS, AND THAT POLICIES SHOULD BE COORDINATED WITH POLICIES OF BOTH PROSECUTORS AND JUDGES. HOWEVER, FULL ENFORCEMENT OF CRIMINAL LAWS IS IMPOSSIBLE. EVEN WITHOUT STATUTORY AUTHORIZATION, THE POLICE PROBABLY POSSESS AN INHERENT POWER TO ALLOCATE THEIR RESOURCES PURSUANT TO DEPARTMENTAL PRIORITIES. BECAUSE FULL ENFORCEMENT IS IMPOSSIBLE AND DEPARTMENTAL PRIORITIES ARE NECESSARY, ANY SOLUTION TO THE PROBLEM OF POLICE RULEMAKING HAS TO INVOLVE A CHOICE BETWEEN TWO MAIN COURSES OF ACTION: (1) MAINTAINING THE EXISTING SYSTEM OF ALLOWING SELECTIVE ENFORCEMENT POLICIES TO BE MADE PRIMARILY BY PATROLMEN, WITH SOME SIGNIFICANT BUT UNSYSTEMATIC INSTRUCTIONS FROM TOP OFFICERS; OR (2) HAVING TOP OFFICERS MAKE MAIN SELECTIVE ENFORCEMENT POLICIES THROUGH SYSTEMATIC STUDIES AND RULEMAKING PROCEEDINGS. THE QUALITY OF JUSTICE ADMINISTERED BY THE POLICE CAN BE IMPROVED IF RULES ON SELECTIVE ENFORCEMENT ARE GRADUALLY EXPANDED, AND IT IS PREDICTED THAT SUCH EXPANSION WILL OCCUR. IN A REJOINDER BY THE ORIGINATOR OF THE THESIS CRITIQUED IN THE ARTICLE, THE POINT IS MADE THAT NONENFORCEMENT AS A RESULT OF SUBSTANTIVE RULEMAKING IS THE FUNCTIONAL EQUIVALENT OF AMENDMENT OR REPEAL. FOR EXAMPLE, MOST POLICE DEPARTMENTS ARE UNDERSTAFFED AND MUST MAKE RESOURCE ALLOCATION DECISIONS. SUCH DECISIONS WILL LIKELY INFLUENCE WHO COMMITS CRIMES OR WHAT CRIMES ARE PROSECUTED. THE EFFECT OF SUBSTANTIVE RULEMAKING IS TO INFLUENCE THE ENFORCEMENT OF PARTICULAR STATUTES; THEREFORE, THE POLICE SHOULD NOT BE EMPOWERED TO ENGAGE IN SUBSTANTIVE RULEMAKING. THE ROLE OF THE POLICE IS TO ENFORCE TO THE BEST OF THEIR ABILITY WHATEVER STATUTES ARE ENACTED BY LEGISLATURE, AND NOT TO ASSESS INDEPENDENTLY WHETHER A PARTICULAR STATUTE IS WISE OR JUST. (DEP)