Josh Bowers on Policing, Common Sense and the Constitution

Josh Bowers

Josh Bowers joined the law faculty in 2008 as an associate professor of law. His primary teaching and research interests are in the areas of criminal law, criminal procedure, criminal justice theory and constitutional law.

September 9, 2014

University of Virginia School of Law professor Josh Bowers has spent his academic career exploring the power and discretion of prosecutors and police officers and how it affects the criminal justice system. His latest article, "Probable Cause, Constitutional Reasonableness and the Unrecognized Point of a 'Pointless Indignity,'" published in the Stanford Law Review, examines what's at stake when the Supreme Court holds unreasonable arrests by common-sense measures to be reasonable by constitutional standards.

Bowers, who formerly practiced at a boutique white-collar criminal defense firm and also served as a public defender, recently discussed his paper and policing policy in the wake of protests in Ferguson, Missouri.

How did your experience as an attorney before you became a law professor influence this article?

For several years, I was a public defender in Bronx County, New York. Before I started that job, I had some sense of what I would encounter there: extremely young men facing extremely long sentences for drug crimes of opportunity, overcrowded courthouses and jails, frequent plea bargains and few trials, the frenetic pace of it all. But I hadn't realized the degree to which the enforcement and adjudication of public-order crime had become such a dominant part of the process. In my experience, the overwhelming majority of these cases were legally defensible. That is to say, the defendants demonstrably had done what they were charged with doing. But, not infrequently, the arrests and charges seemed almost silly — one person arrested for selling socks; another, T-shirts; a third, ice cream on a hot summer day; a fourth held for five days at Rikers Island for walking his dog without a leash and then neglecting to pay a $10 fine. At a sufficient remove, these cases were practically humorous. Close up, you saw the real people confronting very real consequences. Defendants faced humiliation and hurt, long waits and wasted hours, the loss of liberty and sometimes even employment and housing. When I entered academia, I was somewhat struck by the lack of attention to the topic. I have been writing about petty-crime enforcement and adjudication ever since.

Why are arrests that are "pointless indignities"  those for minor offenses that often involve debatable value judgments  problematic for the justice system?

First, I should say that not all minor offenses that involve debatable value judgments constitute "pointless indignities." The Supreme Court used that term to refer to a particular arrest for a particular non-jailable traffic offense. But then the court did something strange: It held that the arrest in question was constitutionally reasonable just because it was supported by probable cause. More than that, the court surmised that "pointless" arrests are exceedingly rare. That strikes me as wrong. As I mentioned, they happen with some frequency, especially in historically disadvantaged and heavily policed communities. And when they happen they create problems for the justice system and its pursuit of crime control and fair and just treatment. Most importantly, because morally and prudentially indefensible arrests tend to pool in poor and minority neighborhoods, they contribute to perceptions (sometimes warranted and sometimes not) that the rules are different for different communities. These negative perceptions have a way of taking root and spreading like the kudzu vine. The result is disenchantment and disengagement with the criminal justice system and the state more generally. In this way, these arrests undermine normative and instrumental crime-control objectives (and potentially much more).

My bottom-line claim, however, is not just that these arrests constitute bad public policy but also that, in certain exceptional circumstances, courts ought to be willing and able to step in and declare that no act so unreasonable according to a common-sense measure should be held to be reasonable according to a constitutional measure. That is, constitutional and common-sense conceptions of reasonableness ought to align to some degree. At least, they ought not to deviate wholly.

You are asking the Supreme Court to adjust its approach to the Fourth Amendment and its worldview on how it evaluates the harm of arrests that are constitutionally legal, yet perhaps inconsiderate of the role of dignity. What could the justices be doing better? Could you describe some of the history of how we got to where we are?

I'm going to quibble just a bit with the premise of the question. The Supreme Court, in fact, has done a fine job evaluating the harm of morally and prudentially indefensible arrests. It has characterized those arrests to be "gratuitous humiliations" and "pointless indignities." That terminology is the court's, not mine. In this way, the court has identified accurately the problem, yet it has elected to do nothing about it. To the contrary, it has declared these arrests to be "constitutionally legal" just because they are supported by probable cause. But that conclusion was not preordained. The court might have crafted another test that could have accommodated other potentially relevant considerations beyond probable cause. In fact, the court has endorsed a much more capacious standard in other Fourth Amendment contexts. Don't get me wrong, the court's bright-line rule for arrests is a product of an admirable impulse. The rule of law is thought to play a particularly important role in criminal justice; and the rule of law, in turn, is thought to demand clear lines. I wholeheartedly agree that the rule of law is particularly important to criminal justice, but I question whether clear lines are always the best way to promote the rule of law, especially in a system such as ours that has left so much space for the exercise of police and prosecutorial discretion. In some settings, bright lines serve principally to provide safe harbors within which police officers and prosecutors can pick and choose between legally and equitably alike offenders. By contrast, a bit of fuzziness might have provided appropriate room for judicial oversight over these choices. 

With the nation now focused on Ferguson and the role of police power, what can local police departments do to try to ensure fairness in how they make arrests, and how they ensure the dignity of their arrestees? Do police need to more broadly reconsider the value of arrests for minor offenses?

My article endorses a constitutional remedy for morally and prudentially indefensible arrests. But, when it comes to the biggest challenges facing contemporary policing, courts can do only so much. The real work needs to be done by police chiefs and other policymakers. When departments heavily police a high-crime neighborhood, they walk a fine line — a tightrope, really — between the desirable and the undesirable. People who live in high-crime neighborhoods want desperately to feel safe. And for too much of our nation's history, police departments have ignored almost completely these traditionally poor and minority communities. But the people who live in these communities have a right also to demand respectful policing. Respectful and effective policing are not mutually exclusive. To the contrary, respectful and effective policing may serve to reinforce one another.

The key is quality leadership and training. Good policing starts from the top-down. But, significantly, it also includes a bottom-up dimension — that is, no department can be successful without cultivating community buy-in. In turn, community buy-in entails open channels of communication and avenues for lay involvement in law-enforcement decision-making and action. Previously, I was a board member of the Charlottesville Police Foundation. In Charlottesville, we are fortunate to have a department that values fairness and transparency (and community policing, more generally). Consequently, the department's relationship with the community is fairly strong. At times, that relationship soured, but the structure remained in place to address such problems as they arose and to correct course in circumstances where it was necessary. Ultimately, it must be remembered that police departments are a government service — a subsidy. Things have gone very wrong when a department is seen as an occupying force.

How would you respond to possible counter-arguments  for example, that police need wide latitude in making arrests to protect public safety, or that giving the police power under the "broken windows" theory has helped communities like New York also combat more serious crimes?

As I mentioned, courts do need to defer to police expertise, but deference has its limits. Deference is not always warranted. In a number of essays and articles, I have examined the scope of police and prosecutorial discretion. I have tried to unpack the question of when and under what circumstances officers and prosecutors fairly may claim expertise. It's my premise that officers and prosecutors are experts when it comes to questions of administrative efficiency, but that they have no special competency when it comes to equitable questions — moral questions about what it means to do the right thing in a given situation. To the contrary, their moral judgment may be clouded by countervailing institutional skews and cognitive biases. Of course, laypeople and judges act according to their own sets of biases. But I have offered reasons to believe that they may do better than officers and prosecutors when it comes to the kinds of equitable questions that tend to predominate in the petty-crime context. With respect to equitable questions, I have a terrific amount of faith in the everyday wisdom of the average citizen. In any event, I don't think any particular stakeholder ought to have the final say — layperson, judge, police officer or prosecutor. In this vein, I have proposed a number of innovative reforms that aim to involve all stakeholders. By contrast, prevailing constitutional doctrine tends to prioritize the officer or the prosecutor and his or her distinct perspective over all else. There is a need for deference to the genuine expertise of police officers and prosecutors, but we can and should calibrate that deference.

You asked about "broken windows" theory, particularly how it relates to New York City and its distinctive policing approach. The truth is that the New York City Police Department never engaged comprehensively with everything that broken-windows theory demands: it entails not just aggressive enforcement of public-order crime, but also implementation of community-policing initiatives. So, yes, New York City has enjoyed an astonishing decline in serious crime, but its policing approach has also generated collateral costs — including widespread communal disaffection. With a more comprehensive strategy, the NYPD could have eaten its cake and had it too. Other cities have done a better job avoiding the legitimacy costs while still reaping the enforcement benefits. In any event, there is an open question over the reasons for "the great crime decline," as it is sometimes called. To my thinking, the reasons are several. Order-maintenance policing has done some (but certainly not all) of the work.

You argue that dignity ought to "count for something." How do you define what that is through law?

I don't purport to define through law what dignity, fairness, proportionality, effective crime-control or any other of the many conceivably relevant principles or policies ought to "count for." To some degree that's my central point: Courts are timid about accommodating anything that cannot be packaged into the defined building block of a precisely stated legal formula. But life is much more complex than that, and there are times when I think that courts have proven just too timid about considering relevant considerations for the simple reason that courts lack the language to define what role those considerations ought to play. This is perhaps somewhat unsurprising. The lawyer's craft is much different than the novelist's craft. But the lawyer can learn from the novelist. The novelist is attuned always to context. The lawyer (or the judge, in turn) is scared of context because it is perceived to pose a threat to predictability. And, to some degree, it does. But the threat on the other side is a body of law built to regulate a fictive world, drained of context, as compared to the very real and richly textured world in which we live and in which we interact — in ways good and bad.

How does this article fit in with your other work?

Stanley Kubrick's alternative title for his seminal film "Dr. Strangelove" is "How I Learned to Stop Worrying and Love the Bomb." I love discretion and believe it to be an essential component of an equitable and just criminal justice system. But I have never learned to stop worrying about it. Years ago, when I was trying to break into academia, a professor asked me how concurrently to accommodate discretion and minimize its misuse. I recall offering a glib response along the lines of "give me a job, and I'll spend the next quarter century thinking about it." But, ultimately, I do think that the question of discretion and its effective regulation is one of the central puzzles of criminal law and procedure. It is a puzzle that I have committed my career thus far to solving. I don't know that there is a solution. I certainly don't hope to find it. However, if I can shed some light on the question and, in the process, provoke and participate in a fruitful debate with students and colleagues, then I consider that to be a career well spent. 


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