POLICING FOR PROFIT: HOW URBAN MUNICIPALITIES' FOCUS ON REVENUE HAS UNDERMINED LAW ENFORCEMENT LEGITIMACY.
Today's modern police force has deep roots in the Anglo-American tradition, dating back to the sheriffs of the English shires. (1) The duties and functions of modern law enforcement, however, differ greatly from their medieval counterparts. (2) The evolution of law enforcement functions can be directly traced to the rise of the progressive administrative state and the proliferation of literally countless laws, regulations, and ordinances at the federal, state, and local levels. (3) No longer merely keepers of the peace, (4) today's police officers are tasked with innumerable duties (5)--some, contradictory with each other. (6) Nowhere can these contradictions be more acutely felt than on the street, where officers first interact with the members of the community they have ostensibly sworn to protect and serve. (7)
To many people, police officers are the face of the municipal administrative state. (8) They are representatives of the mostly-unseen bureaucracy that orders and directs their lives. While citizens sporadically interact with other municipal entities (annually with the DMV, for example), they see the police patrolling their communities on an almost daily basis. (9) More importantly, those officers wield the power to stop them on the barest suspicion of wrongdoing, (10) temporarily detain them, search them, seize their property, (11) and even arrest them for trivial offenses. (12) It is crucial to the functioning of an ordered society that the citizenry perceives the application of that police power as legitimate. (13) If, however, community perception is the police power is being used for illegitimate purposes, faith and trust in officers that exercise that power would be undermined and their ability to perform their legitimate functions would be stymied. (14)
Across America, many municipalities have discovered that law enforcement can be a lucrative business. (15) Some derive a significant percentage of their operating budgets from tickets, citations, fines, and court fees. (16) Some municipalities have even tied their law enforcement agency budgets to the revenue generated from such sources. (17) In addition to ticket revenue, police departments profit from civil asset forfeiture, a process whereby police are able to seize cash and property without proving a crime has actually occurred. (18) The process is so lucrative, a substantial number of police agencies are dependent on revenues from it. (19)
These practices have the effect of creating a perverse incentive among such agencies to write more citations and make more stops in order to boost their budgets. (20) The natural consequence of this practice is to alter the community perception of the police officer from a keeper of the peace to an oppressor of liberties. (21) Hence, municipal and law enforcement focus on revenue generation ultimately delegitimizes the authority of the police in the eyes of the community and destroys their ability to effectively perform their essential duties. (22)
Revenue collection is fundamentally incompatible with traditional law enforcement functions. It distorts the focus and priorities of officers away from community safety. (23) It interferes with the ability of police officers to ensure the safety and security of the communities they serve. (24) Further, such practices raise serious constitutional issues. (25) Such practices have led to violent confrontations between law enforcement and the public. As part of the larger national dialog on community policing, policy-makers must give attention to how police forces are funded and how an emphasis on revenue collection interferes with police effectiveness. Money, as they say, is at the root of this evil (26) and only by either prohibiting or seriously curtailing the practice of using fines, court fees, and asset forfeitures to fund municipal governments and police departments will reforms--which are fundamental to restoring police legitimacy in the communities they serve--take root.
II. THE HISTORICAL ROLE OF POLICE
A. Police as Peace Officers
The origins of our modern police force can trace their roots to the sheriffs of early medieval England. (27) Under the common law, the powers of the sheriff fell into one of four categories, either as: a judge; a keeper of the king's peace; an officer of the court; or the king's bailiff. (28) Early criminal laws were far fewer than today and only serious crimes were considered felonies and subject to harsh punishment. (29) The sheriff, acting under the authority of the king, was the primary enforcer of the criminal law. (30) The concept of a constabulary, or custodies pads (31) appointed by the local baron was established in England as early as 1233. (32) The baronial keeper of the peace, was primarily responsible for maintaining peace and public order by detaining law-breakers and keeping watch against insurrection and invasion. (33) Gradually, through an informal and ad hoc process, constables acquired law enforcement duties similar to sheriffs but remained accountable to and funded by the local government. (34) When the American Colonies were established, the English model of county sheriff and village constabulary were imported along with the common law. (35) While the common law continued to evolve, that which constituted a criminal act changed little until the Industrial Revolution and the rise of Progressivism. (36) Fundamental changes to the criminal law shifted the priorities of law enforcement away from simply maintaining public peace and order and toward enforcing an ever-expanding corpus of criminal statutes. (37)
B. Evolving Concepts of Criminal Law
In tracing the evolution of modern police priorities and practices, it is necessary to briefly delineate the history of criminal law in Anglo-American jurisprudence. This is a necessary prerequisite because what constitutes a crime and what are the purposes of criminal laws has changed over time, and those changes have directly impacted the responsibilities of police and the methods by which they execute those duties.
Medieval English criminal law imposed strict liability for acts, attaching criminal liability regardless of motive or intent. (38) The rediscovery during the early Renaissance of Roman legal texts which emphasized moral guilt, or culpa, began to influence English legal thinking. (39) English criminal law focused increasingly on the criminal's state of mind. English jurists gradually recognized a requirement for a culpable intent in order to convict a person of a felony. (40) The concept of mens rea as an element of every crime was well established in the common law by the Enlightenment period. (41)
By the late nineteenth century, the rapid urbanization of society due to the Industrial Revolution forced the criminal law in another direction. (42) The human achievements and societal advances born of the Industrial Revolution convinced many that not only was it possible to perfect society, but that it was inevitable. (43) Modern social philosophers believed that, in this inevitable march of progress, the individual good must give way to the collective good. (44) Those who opposed change would be marginalized. (45) To Utilitarians, this idea of perfecting society involved maximizing the effectiveness, or utility, (46) of every aspect of society--including the criminal law. (47) Progressives believed intelligent men could codify the law into a perfect model code. (48) They viewed individual liberties as secondary to the greater good and saw the criminal law as a tool to alter and shape human behavior in order to create a "good society." (49) The result was a proliferation of laws, statutes, and ordnances regulating every conceivable aspect of daily life. (50)
Many of these new laws were characterized as public-welfare offenses and were an exception to the mens rea principle. (51) Rather than punish conduct seen by the community as morally blameworthy and in need of condemnation, criminal liability attached to minor violations of various acts or omissions that lawmakers determined endangered the public health, safety, or welfare. (52) Courts justified the public-welfare exception by noting such offenses received only a relatively light penalty, usually just a fine, and did not carry with them any threat of imprisonment. (53) The imposition of strict liability was necessary if intelligent men in government were to mold society into a more perfect form. (54)
A subset of these new, malum prohibitum laws--important for its impact on community policing--is the regulation of controlled substances. Prior to 1914, narcotics were unregulated in America. The first laws passed by Congress were focused more on marketing and taxation. (55) Prosecutions occurred only where prescribing physicians acted outside the bounds of professional practice. (56) With the passage of the Comprehensive Drug Abuse and Prevention Act in 1970, the mere possession of a wide variety of controlled substances became, essentially, malum in se and the federal government empowered local law enforcement agencies to take the war on drugs to their neighborhoods. (57) To entice their cooperation, the federal government authorized police to civilly seize any property involved in a federal crime. (58)
The proliferation of statutes which impose criminal liabilities for heretofore non-criminal acts has created a problem for our criminal justice system. Despite the best efforts of enlightened legislators, no law can be crafted which can be mechanically applied to the wide variety of situations which law enforcement regularly face. (59) Nor can officers be expected to intercede in every single violation of law they witness. Consequently, legislators expect, and reality demands, that law enforcement officers exercise good judgment and sound discretion in enforcing the menagerie of federal, state, and local laws on the books. (60) If part of an officer's decision process for deciding which laws to enforce and when to enforce them includes the potential for profit, police discretion can become a convenient excuse for abuse.
III. MODERN POLICING AND THE FOCUS ON REVENUE
A. Municipal Police Funding
Policing in the United States is extremely decentralized, with approximately 18,000 separate agencies, each one dependent on its own funding sources. (61) Municipal police departments are typically funded by local sales, property, and business license taxes. (62) Montgomery, Alabama, for example, with a population of just over 200,000, obtains 65% of its total revenue ($220.4 million) from local taxes. (63) This reliance on tax revenue makes municipalities sensitive to economic disruptions. (64) If the municipality serves a poorer community, that sensitivity is heightened. (65) The 2008 economic crisis dealt a severe blow to municipalities and their police departments. (66) Because police departments are typically the largest item on municipal budgets, it was impossible to shield them from the massive cuts municipalities faced when property valuations collapsed. (67) Many law enforcement agencies responded by cutting overtime spending, imposing hiring freezes, and laying off personnel. (68) Of greater concern was the reduction or discontinuation of training programs, termination of specialized units, and suspension of plans to acquire modern police technology, such as body cameras. (69)
Although funding levels have slowly recovered over the past few years, chronic understaffing and high vacancy rates have remained a problem. (70) The result is undermanned police departments are having to prioritize their response to calls much like paramedics must triage victims during a mass-casualty event. (71) It comes as little surprise then that, for some police departments, the things likely to receive higher priority are those which are likely to result in increased revenue to the department. (72) Although the use of fines to augment department budgets is not new, economic pressures have greatly expanded the practice. (73) After 2008, police chiefs began publicly discussing ways of generating new revenue streams, including increasing fines, pay-per-call policing, and--notably--passing new ordinances. (74) Beyond these new sources though, just more rigorous enforcement of existing ordinances can bring in substantial revenue. Public-welfare offenses, with a low standard of proof and strict liability, may seem to police like easy targets for a quick return on investment. (75)
Civil asset forfeiture is another method by which police agencies can augment their operating budgets. While not a new concept in American law, civil forfeiture became popular with the passage of the Comprehensive Drug Abuse Prevention and Control Act in 1970. (76) The law authorized the seizure of property used in the commission of a drug crime. (77) The use of civil forfeitures exploded after 1984 when Congress amended the Act in response to the expanding war on drugs in order to create an Assets Forfeiture Fund. (78) Under the law, the Department of Justice (DOJ) would "adopt" the assets from any seizure made pursuant to the commission of a federal drug crime and then return up to 80% of the proceeds directly back to the seizing law enforcement agency. (79) Most states soon followed suit, expanding their civil forfeiture laws and allowing law enforcement agencies to keep a portion of the proceeds. (80) The proceeds from civil forfeitures has become a significant portion of many police department operating budgets. (81) Congress gave law enforcement agencies a financial incentive to pursue drug crimes; it cannot come as a surprise that some responded enthusiastically to it. (82)
While many individuals within a government organization may share a principled commitment to carrying out the mission of the agency, government officials, operating in what they perceive as their own self-interest, will also attempt to maximize the size and budget of their agency. Larger budgets will benefit everyone within an agency through higher salaries, greater job security, better equipment and increased power and prestige. Such incentives can affect even the most well-intentioned law enforcement officers. (83)
As a consequence of budgetary pressures and financial incentives, police departments become tempted to reprioritize their activities. (84) In municipalities where they have succumbed to that temptation, the focus of a police stop ceases to be premised on public safety and instead becomes about making money. (85) The Progressive ideal of reengineering society through regulation, in this instance, comes face-to-face with economic reality, and the ever-expanding regulatory powers they have bestowed on local authorities over the past century has mutated into a vehicle by which municipal officials can enrich themselves at the expense of their constituents.
B. Revenue Generation Run Amok
Perhaps no other place in America has come to symbolize all that is wrong with modern police practice than Ferguson, Missouri. The problem is by no means limited to that city, but recent events have subjected the municipality to intense scrutiny. What has been brought to light there and in other cities in St. Louis County has sparked a national dialog on municipal police practice.
St. Louis County is comprised of ninety municipalities ranging in population from twelve to over 50,000. (86) Eighty-one municipalities have their own court and police force to enforce the municipal code across the region. (87) Some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by municipal courts. (88) Contrast this with the city of Montgomery, Alabama which derives merely two percent of its budget from fines and forfeitures. (89) According to available statistics, the amount collected seems to be inversely proportional to the wealth of the municipality. For example, the City of Pine Lawn, with a population of 3,500 and a per capita income of $13,000, collected more than $1.7 million in fines and court fees. (90) Conversely, the affluent suburb of Chesterfield, with a population of 47,000 and a per capita income of $50,000, collected just $1.2 million from municipal fines. (91)
This practice may have started with an interest in funding essential public services, but as the money rolled in, municipalities realized it could pay for much more. In Florissant, Missouri, for example, a ten-dollar fee added to every ordinance violation in 2014 funded construction of a new courthouse. (92) The nearby town of Bel-Ridge with a population of only 2,700 uses its $450,000 in annual fine revenue to support a mayor, a nine-member city council, a 20-member police department and full city staff. (93) In Allegan County, Michigan, court fees underwrote the cost of a fitness center for county employees. (94)
Fines may be yielding millions for municipalities, but civil forfeitures are yielding billions for law enforcement agencies. According to available data, between 2008 and 2014, police departments have reported spending nearly $2.5 billion from asset seizures through the Assets Forfeiture Fund. (95) Police in Ferguson used money from asset forfeitures to buy $132,000 in weapons, surveillance equipment, and other gear. (96) Ferguson's purchases, though, pale in comparison to the $1.3 million spent by police in Fairfax County, Virginia on weapons and gear. (97) While many purchases seem reasonable, others seem more specious. For example, police in Douglasville, Georgia, with a population of 32,000, bought an armored personnel carrier costing $227,000 and down the road in Braselton, Georgia police have spent over $3 million on equipment despite having a population of only 8,000. (98)
C. The Profit Motive Can Lead to Abuse of Police Discretion
Investigations into police practices in Ferguson and surrounding municipalities have uncovered numerous examples of how officers can misuse their discretion in order to issue more citations. One resident in Florissant recounted being told by an officer that he stopped her for hitting her brakes too much. (99) Although she was never issued a citation for a moving violation, but--because of the stop--she was cited for lack of proof of insurance. (100) Residents say police pull them over for vague infractions in order to find other violations like not wearing a seatbelt, lack of insurance, or failing to have a car inspected. (101)
Here too the poor get hit especially hard. Older, shabbier cars get stopped more often because police suspect they're more likely to be driven by people who can't afford insurance or registration fees. Even with all the different laws on the books that local police can use to cite and fine motorists, they've also been caught fabricating crimes to issue even more, such as in 2011 when a motorist was cited for extending his middle finger at another driver in the town of Ballwin. (102)
Police have even been caught setting up speed traps and other ruses in order to entrap innocent motorists. In one high-profile example in 2000, police in Bel-Ridge were caught manually switching a traffic light to catch unsuspecting motorists. (103)
Police have also been caught abusing the civil forfeiture laws. In Detroit in 2008, police raided an event at a local Art Institute on a warrant charging the gallery had sold liquor without a license. (104) The police arrested 130 patrons and seized the cars of 44 '05 jyrOSf- were told that if they wanted their cars back, they would have to pay a thousand dollar fine. (106) After some of the patrons sued, the court found that the police lacked probable cause to arrest the patrons, lacked reasonable suspicion to search them, and lacked justification for seizing their vehicles. (107) In Philadelphia in 2012, the home of a sixty-eight-year-old grandmother was seized after her son sold marijuana to an undercover cop on the porch of her home. (108)
Some abuses can be even more egregious, bordering on outright extortion. A couple in Linden, Texas were pulled over because they "fit the profile of drug couriers." (109) During a search of the vehicle, police found a large amount of cash, but no drugs. (110) After being taken to the station, the district attorney told them they could avoid any charges if they just signed over the cash to the city. (111) For some unscrupulous police agencies, civil forfeiture can become a cottage industry in and of itself.
In Bal Harbour, Florida, an upscale seaside village of thirty-three-hundred residents, a small vice squad ran a forfeiture network that brought in nearly fifty million dollars in just three years. The squad travelled around the country, helped to arrange money-laundering stings in far-flung cities, then divided the cash with the federal agencies involved. Last year, the Department of Justice shut down the operation, ordering the village to return millions in cash. But much of it had already been spent: on luxury-car rentals and first-class plane tickets to pursue stings in New York, New Jersey, California, and elsewhere; on a hundred-thousand-dollar police boat; and on a twenty-one-thousand-dollar drug-prevention beach party. (112)
In places where the use of forfeitures is greatest, it seems to be at the expense of ordinary citizens rather than drug cartels and other powerful entities. For example, in Georgia, statewide police forces received over $2.76 million from forfeitures, but more than half of the items taken were worth less than $650. (113) In Texas, reporting indicates that smaller police agencies are earning just as much, even more in some cases, as large municipalities, indicating forfeiture activities are sweeping up every-day residents, not just high-profile offenders. (114)
D. Courts as Willing Participants
The problem in these communities extends far beyond just the actions of the police. For such practices to develop and operate requires the support of the city government and, critically, the willing participation of the municipal court system. A court should normally be a check on police misconduct, throwing out questionable stops and arrests or dismissing cases lacking evidentiary support. (115) However, when court funding is tied--like police departments--to fines and fees, they have the same motivation for abuse. Police efforts to raise revenue through questionable stops are successful, in part, because court interests are intrinsically tied to police interests. (116) Rather than independent and impartial adjudicators, they are partners in crime.
While the role of courts in this scheme is generally beyond the scope of this article, it is important to note that one cannot operate without the other and, as far as the public is concerned, the police and the courts are the same entity. A stop by the police in these municipalities will usually result in a trip to court. The court validates and gives sanction to the behavior of the police. (117) If the accused cannot pay their court fines, the court will issue an arrest warrant and they will be visited by the police once again. (118) Both are representatives of a system that is oppressing the community they are supposed to be serving and are, by all accounts, violating their basic Constitutional rights.
A. Constitutional Violations
An investigation by the DOJ into the police shooting in Ferguson concluded that revenue generation through policing has "fostered practices... that are themselves unconstitutional or that contribute to constitutional violations." (119) In Ferguson for example, the DOJ found that police officers routinely stop people without reasonable suspicion, in violation of the Fourth Amendment's prohibitions against unreasonable searches and seizures. (120) Additionally, the report details the use of a "wanted" system which, in practice, likely violates the Fourth Amendment's warrant requirements. (121) After a citizen is issued a citation or arrested by the police, the report found that the municipal court's focus on maximizing revenue over administering justice "imposed unnecessary barriers" to the basic procedural due process rights of those accused. (122)
A similar DOJ investigation conducted in Baltimore, Maryland in 2016 found similar constitutional violations. (123) The report found a "widespread pattern" of officer stopping and detaining people without constitutionally-required reasonable suspicion of criminal activity. (124) Many of the stops, the report said, appeared to be motivated by a "desire to check whether the stopped individuals ha[d] outstanding warrants that would allow officers to make an arrest or search... ." (125) The report also found that searches conducted by officers after a stop were often without legal justification or excessive in scope. (126) Unsurprisingly, the DOJ report found that these unlawful stops and unlawful searches led to unlawful arrests. (127) It noted that arrests without probable cause were most pronounced "with non-felony offenses that stem from street encounters between officers and residents." (128)
While the nature of the police misconduct in Ferguson and in Baltimore are similar, they differ in one important respect. Whereas the motivation of the Baltimore police was ostensibly crime prevention, the motivation of the Ferguson police was revenue collection. Neither motivation was in fact legitimate, and their employment of similar practices led to tragically similar outcomes. Further, by systematically violating citizens' constitutional rights, both police departments delegitimized their own authority to operate in their communities. (129) As noted previously, these practices are concentrated in poorer communities where crime is higher but where the ability to challenge unlawful police practices is limited. Beyond the procedural due process rights discussed above, when a law or practice falls disproportionately on one group, other constitutional concerns are implicated.
When a traffic or other stop by the police is predicated on making money, the practice disproportionately impacts the poor. (130) When a municipal court is more likely to issue an arrest warrant or jail an individual for not paying a fine rather than for violating an ordinance, (131) the poor are singled out for unequal treatment. The Fourteenth Amendment's guaranties of due process and equal protection require states to treat all persons in a neutral manner, taking no account of any classification or grouping. (132) While the Supreme Court has never recognized poverty as a protected class, the Court has determined that access to the courts is a fundamental right and has routinely struck down laws that unreasonably burden access to the courts and appeals by the poor or indigent. (133)
In 1983, the Supreme Court held, in Bearden v. Georgia, that a court may not imprison a person solely because he lacked the resources to pay a fine or court costs. (134) The Court noted that a person who "has made sufficient bona fide efforts to pay his fine . . . and who has complied with the other conditions of probation, has demonstrated a willingness to pay his debt to society and an ability to conform his conduct to social norms." (135) Therefore, the Court concluded, a court "must consider alternate measures of punishment other than imprisonment." (136) However, the Court noted that if a person has willfully refused to pay when he has the means, the State "is perfectly justified in using imprisonment as a sanction to enforce collection." (137) This willfulness exception has become a convenient vehicle in some jurisdictions for avoiding Bearden's key holding and continuing to jail indigent defendants. (138) This has the practical effect of reviving a long-banned and discredited institution--the debtors' prison. (139)
The entire concept of the public-welfare exception to our criminal laws presupposes a "light penalty" that usually does not include imprisonment. (140) Yet, the poor in many communities are routinely being saddled with onerous fines and court fees and then are systematically being jailed for failure to pay. In these cases, has the public-welfare exception to a culpability requirement lost all meaning and are indigent defendants being treated as common felons? (141) If so, should stricter criminal due process protections, including a mens rea requirement, be enforced? (142)
Civil forfeiture laws also raise constitutional Due Process concerns. In criminal cases, a defendant is innocent until proven guilty. However, most states and the federal government treat civil forfeiture differently, assuming owners of seized property are guilty until proven innocent. (143) The burden is on the owner to establish his innocence in order to recover his property. (144) Making the process more burdensome is the standard of proof required by police to seize the property in the first place. (145) In the majority of states, the statutorily-required standard of proof is lower than the standard required to prove the defendant is guilty of the accused crime. (146) As one study notes, "Given this situation, it is not surprising that upwards of 80 percent of forfeitures occur absent a prosecution." (147) In order to recover their seized property, owners must go to court.
Owners who wish to contest often find that the cost of hiring a lawyer far exceeds the value of the seized goods. Washington, D.C. charges up to twenty-five hundred dollars simply for the right to challenge a police seizure in court, which can take months or even years to resolve. (148)
If the owner is poor or indigent, it is difficult if not impossible for them to recover their property. This outcome, common in poorer municipalities, results in a windfall for the police and further alienates them from the community.
B. Criminalization of Poverty
In municipalities where the focus is on profit rather than justice, the kind of treatment a person gets "depends on the amount of money he has." (149) In the never-ending search for revenue, municipalities charge fees for every phase of the criminal process, including for arrest, for incarceration, and for trial. (150) Moreover, for the right price, a person can avoid these phases altogether. (151) One survey, conducted in 2014, found that over 40 states billed defendants for access to a public defender, charged inmates for jail and prison stays, or forced probationers and parolees to pay for their own supervision. (152) While the intent of Bearden was to waive fees for indigent defendants, courts are more likely to put the poor on payment plans. (153) The terms on these plans are often worse than credit cards, meaning making only minimum payments would result in an increasing, rather than decreasing, debt. (154)
These fees serve to criminalize poverty and severely amplify the burden that criminal punishment imposes on poor communities. In many jurisdictions, debt from criminal courts carries interest and late fees, thereby multiplying the financial burden of those least able to pay. When probation or parole terms require payment of these fees, inability to do so can foreclose housing, welfare assistance, and employment options. When coupled with these debilitating collateral consequences, these debts impose an enduring burden that can exceed the penalty imposed for the crime. (155)
Beyond the manifest injustice of these practices, they serve to trap the poor in a never-ending cycle of poverty, reducing them to veritable wards of the state and unable to free themselves from the shackles of government. (156) What the public perceives is a system, not designed to ensure their safety, but to exploit and to subjugate them. Little wonder, then, that the public views the agents of that system--the police--with suspicion and distrust.
C. Police Legitimacy
In municipalities where police departments have succumbed to the corrupting power of money, the police have annulled their own mandate to serve the community. It is a founding principle of this nation that governments derive their authority from the consent of the governed. (157) If the police and the citizenry share the same notions of right and wrong, the police possess the moral authority to act. (158) To possess legitimacy, the community must perceive the act or omission sanctioned by the police as morally blameworthy or at least harmful to public safety, heath, and welfare. (159) If, however, the community values diverge from the police, the citizenry may perceive police behavior as unethical, immoral, or unfair. (160) When police are questioned about certain practices or the use of particular tactics, a common refrain heard is that such practices or tactics are effective in catching criminals. However, public perceptions about police fairness are far more significant to police legitimacy than perceptions about its effectiveness. (161) Studies have suggested that "the public is very sensitive to the manner in which authorities exercise their authority--that is, to issues of procedural justice. Views about legitimacy are rooted in the judgment that the police and the courts are acting fairly when they deal with community residents." (162)
The police are the most visible agent of social control and the most high-profile institution in a justice system that is empowered to define right and wrong behavior. If the police abuse their powers and wield their authority in unfair ways, this cannot only damage people's sense of obligation to obey their directives (their authority in the normal sense of the word); it can also damage public perceptions of their moral authority and therefore the moral right of the law to dictate appropriate behavior. (163)
In order to be effective in their jobs, the police must receive not only the compliance of the community but also their cooperation in combating crime. (164) But they will only comply and cooperate when they feel a moral or ethical obligation or commitment to do so. (165) If the public perceives law enforcement authority as illegitimate, they will not obey it. (166) Worse, they will not use it at all, leading to a fundamental breakdown of the social order. The inevitable result is what the world witnessed in Ferguson and in Baltimore. (167)
V. POTENTIAL REFORMS
A. Asset Forfeiture Reform
Civil asset forfeiture has morphed from a tool designed to combat drug crimes into a money-making machine for many police departments. The frequent abuses will continue unless meaningful reform is implemented. Some recommendations have included a provision that any revenue from seizures be placed in a state fund not directed toward law enforcement. (168) In Maine and Missouri, where revenue goes to a public education fund, they have generally avoided major forfeiture-abuse scandals, whereas Texas and Georgia--with few restrictions--have seen greater complaints. (169) Others have called the program "unreformable" and have called for its outright abolition." (170)
Civil asset forfeiture... laws are gross perversions of the status of government amid a free citizenry. The individual is the font of sovereignty in our constitutional republic, and it is unacceptable that a citizen should have to "prove" anything to the government. If the government has probable cause of a violation of law, then let a warrant be issued. And if the government has proof beyond a reasonable doubt of guilt, let that guilt be proclaimed by 12 peers. (171)
Congress attempted a reform in 2000 by passing the Civil Asset Forfeiture Reform Act which established greater procedural protections and increased the burden of proof requirements. (172) Many argue, however, that these reforms did not go far enough. (173) Congress has attempted to pass further reforms, most recently in 2015, without success. (174) In 2015, Attorney General Eric Holder implemented a policy prohibiting federal adoption of property seized by state law enforcement agencies unless the seizure was part of joint federal-state investigation. (175) However, this policy did nothing to address state asset forfeiture laws. (176) This limited reform, though, was rescinded by Attorney General Jeff Sessions in 2017. (177)
A 1993 Supreme Court case may also present an avenue for reform. In Austin v. U.S., the Supreme Court held that the Excessive Fines Clause of the Eighth Amendment applies to forfeitures of property under the Drug Abuse Prevention and Control Act. (178) The Court reasoned that because forfeiture serves "as punishment for some offense" but "has no correlation to any damages sustained by society or to the cost of enforcing the law," a forfeiture could be found to be excessive in certain circumstances. (179) However, the Court declined to establish any test for determining whether a forfeiture is constitutionally excessive. (180) Subsequent cases in lower courts citing Austin have interpreted the decision narrowly and have generally declined to find any forfeitures constitutionally excessive. (181) Although the Court has consistently upheld the practice, not all of the justices are fans of it.
Justice Thomas, while acknowledging the constitutionality of civil forfeiture, has been a frequent critic of the scheme. (182) Most recently, in Leonard v. Texas, he reiterated his concerns. (183) Writing separately after the Court denied the petition for a writ of certiorari, Thomas expressed skepticism that "this historical practice is capable of sustaining, as a constitutional matter, the contours of modern practice. . . ," (184) He noted that civil forfeiture "has led to egregious and well-chronicled abuses" and frequently "target[s] the poor and other groups least able to defend their interests in forfeiture proceedings." (185)
It seems clear that certain key reforms are essential if abuses are to be curtailed and public confidence is to be restored. But, because Congress and the Court have failed to make substantive progress, essential reforms are likely to be most successful at the State level. Potential reforms which could be implemented at the State level include: Increasing state-level oversight and accountability of state, county, and municipal law enforcement agencies; putting the burden on the government to prove guilt instead of forcing owners to prove their innocence; requiring proceeds from forfeitures be spent on non-law enforcement programs; and imposing a higher standard of proof in court. However, some argue that no state law reforms would be effective so long as federal policies continue to provide a way around state requirements. (186) Absent these reforms, the detractors of civil forfeiture are justified in calling for a complete abolition of the practice.
B. Law Enforcement Funding Reform
In most of America, police departments are funded through local taxes. (187) Through the power of the purse, municipalities can assert their authority over law enforcement. In our representative republic, where elected municipal officials are accountable to the people, this ensures police are ultimately accountable to the population they serve. If, on the other hand, police can derive significant revenue from their own activities, they become largely self-funding and, hence, less accountable. (188) Many municipalities either expressly or impliedly condone law enforcement self-funding because it allows them to divert scarce tax dollars to other programs. (189) Unfortunately, by doing so, they reinforce the need by police for alternative revenues and further weaken municipal control over local police forces.
To ensure police departments are listening and are responsive to the communities they serve, their funding must come almost exclusively from local tax dollars. By tying police budgets and salaries directly to the local tax base, the police are accountable to the tax-paying community. (190) It is not unlike a business: if a person's continued employment is predicated on having satisfied customers, that person is incentivized to provide great customer service.
[W]e... have to fund police departments in a way that matches the breadth of the roles we expect them to fill, and do so in ways that don't risk distorting their pursuit of their critical public safety mission. If we want public safety agencies that are effective and accountable to the will of the public, we need to fund them in an amount and through a political process that can deliver both. [A]sset seizures have a role to play in penalizing some types of crime and denying some types of criminals the fruits of illegal behavior. But such mechanisms have to be designed to insulate departments from pressures or incentives that risk distorting them into municipal profit centers. (191)
One problem with relying solely on local taxes for municipal funding is that poorer communities will receive less funding for essential services. (192) Poorer communities argue that alternative sources of funding are needed to adequately fund basic services. (193) Hence, any state restrictions on alternative municipal funding should be paired with greater financial support directly from the state. Alternatively, residents of poorer communities may be better served if their municipality was merged with a wealthier one.
C. Municipal Reform
1. Municipal Consolidation
The situation in St. Louis County discussed earlier (194) exposes another area of needed reform--the existence of municipalities with a tax base too small to support a municipal government and a police force. In smaller and poorer communities struggling to provide basic services, the temptation to augment their budget with alternative sources of revenue is, in some cases, too great. Merging certain municipal services or merging municipalities all together would likely ameliorate this problem. Fortunately, the problem has already been recognized and some efforts toward such a goal have already begun.
There has long been a movement in St. Louis to merge the county with the city. That movement has picked up steam in recent years as advocacy groups... have pushed proposals to merge a number of public services. But real change would require a good portion of these towns to merge with other towns, or to dissolve themselves entirely. That would require the town councils or boards of aldermen to vote themselves out of a job. (195)
Whether these efforts will bear fruit remains to be seen. Encouraging someone to eliminate their own employment is no easy thing. It will require sustained engagement by the community.
2. Community Engagement
When municipalities pass laws without the assent of the community, they lack the moral authority to enforce those laws. However, just as lawmakers must seek the consent of their constituents, those constituents should be holding those who represent them accountable. The Founders recognized that our Republic would not succeed without an involved and engaged citizenry. (196) The people need to be active in civic affairs and inform themselves if they expect their leaders to remain accountable to them. Regrettably, studies show too many Americans remain disengaged from civic participation. The data indicate that rates of civic engagement is closely tied to age, income, and education. (197) Participation is lowest among 18 to 24-year-olds and people of all ages without a high school diploma. (198) Participation is also positively related to household income, rising proportionately with wealth. (199)
The unfortunate conclusion is where civic engagement is most needed, it is least practiced. If municipalities are to be held accountable and made responsive to community needs, serious efforts must be made to foster and enhance engagement. Such efforts, though, are a two-way street. Just because the public is disengaged does not give lawmakers license to legislate at will. If anything, it demands greater effort on their part to reach out to the public and ensure they represent the will of the people. Otherwise, the police are being sent out to accomplish an impossible task.
This article may paint a bleak picture of our community police forces. That is certainly not its intention and it must be clearly stated that the vast majority of our nation's million-plus police officers are honorable and professional men and women, dedicated to protecting the communities they serve. They often do so for little pay, with meager resources, and under incredible pressures. Yet they genuinely feel a sense of duty and commitment to the people they protect and serve. They feel a sincere disdain for those few in their ranks that tarnish the dignity of the badge they wear. If American communities are to restore the trust between officers and the public, they must identify and isolate the particular sources and agents of corruption. Condemning the entire profession is both misguided and counterproductive.
Municipal policies and federal laws have given the agents of corruption room to operate. They have incentivized bad behavior and rewarded unlawful practices. Most municipalities are able to resist the temptation, but they should not be tempted in the first place. Without basic reforms to how law enforcement agencies are funded, abuses of power will continue and public distrust of police will remain. Ultimately, revenue collection is fundamentally incompatible with traditional law enforcement functions and it impedes the ability of police officers to work with the communities they serve to ensure their safety and security.
Robert A. McBride (*)
(*) J.D., Faulkner University, Thomas Goode Jones School of Law (2018).
(1) McMillian v. Monroe Cty, Ala., 520 U.S. 781, 794 (1997) (explaining that English sheriffs were the King's agents in the shires, or counties, and although elected locally were "keeper[s] of the kings peace.").
(2) See discussion infra Section II.A.
(3) See discussion infra Section II.B.
(4) See City of Chicago v. Morales, 527 U.S. 41, 106-08 (1999) (Thomas, J., dissenting) ("In most American jurisdictions, police officers continue to be obligated, by law, to maintain the public peace.").
(5) See People v. De Bour, 352 N.E.2d 562, 568 (N.Y. 1976) ("[T]he police perform the lion's share of services expected of local government. [W]ell over 50% of police work is spent in pursuits unrelated to crime.").
(6) See People v. Ray, 981 P.2d 928, 933-35 (1999) (noting that police have "complex and multiple tasks to perform" and in addition to traditional crime-solving activities, they have diverse duties collectively referred to as "community caretaking functions" in which Fourth Amendment protections do not always apply); see also Erik Luna, The Overcriminalization Problem, 54 AM. U. L. REV. 703,708 (2005) ("Congress has adopted repetitive and overlapping statutes....").
(7) See Terry v. Ohio, 392 U.S. 1, 13 (1968) (noting that street encounters between citizens and police are "incredibly rich in diversity"); see also Wayne R. LaFave, Street Encounters and the Constitution, 67 MlCH. L. REV. 40, 61 (1968).
(8) See Mayer v. City of Chicago, 404 U.S. 189, 197-98 (1971) ("[I]t is the police and the lower court[s]... that convey the essence of our democracy to the people. Justice, if it can be measured, must be measured by the experience the average citizen has with the police....").
(9) See Foley v. Connelie, 435 U.S. 291, 297 (1978) ("The execution of the broad powers vested in them affects members of the public significantly and often in the most sensitive areas of daily life.").
(10) Terry, 392 U.S. at 30.
(11) MARIAN R. WILLIAMS, ET AL., INSTITUTE FOR JUSTICE, POLICING FOR PROFIT: THE ABUSE OF CIVIL ASSET FORFEITURE 8-9 (March 2010) (explaining that civil forfeiture is a legal fiction that enables law enforcement to take legal action against inanimate objects for participation in alleged criminal activity regardless of whether the owner is charged with a crime).
(12) Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001); Virginia v. Moore, 553 U.S. 164, 177-78 (2008).
(13) See discussion infra Section IV.C; see also Roger G. Dunham & Geoffrey P. Albert, The Foundation of the Police Role in Society, in CRITICAL ISSUES IN POLICING 3, 4 (Roger G. Dunham and Geoffrey P. Alpert eds., 7th ed. 2015) (explaining that only the police are given the legitimate right to use force against citizens in our society and the "great dilemma" is how to permit the police to use that force to maintain society while simultaneously preventing them from using that force illegitimately).
(14) See, e.g., Michael S. Scott, Progress in American Policing?, 34 LAW & Soc. INQUIRY 171, 176 (2009) (discussing community policing and other innovations designed to bolster public trust in the police); Ingrid V. Eagly, Immigrant Protective Policies in Criminal Justice 95 Tex. L. Rev. 245, 281-82 (2016) (arguing closer, collaborative relationships between community members and police enhance police legitimacy).
(15) See Thomas A. Garrett & Gary A. Wagner, Red Ink in the Rearview Mirror: Local Fiscal Conditions and the Issuance of Traffic Tickets, 52 J. L. & ECON. 71, 72 (2009); C. Jarrett Dieterle, Citation Nation, CITY JOURNAL: EYE ON THE NEWS (April 4, 2017), https://www.city-journal.org/html/citation-nation-15093.html.
(16) The Harvard Law Review Ass'n, Development in the Law Policing: Policing and Profit, 128 HARV. L. REV. 1723,1724(2015) [hereinafter Policing and Profit] (finding that in the city of Ferguson, Mo., court fines and fees are the city's second-largest source of income, generating over $2.4 million in 2013).
(17) U.S. DEP'T OF JUST., INVESTIGATION OF THE FERGUSON POLICE DEPARTMENT 9-14 (2015) [hereinafter FERGUSON REP.].
(18) Robert O'Harrow Jr., et al., Asset Seizures Fuel Police Spending, THE WASHINGTON POST (October 11, 2014).
(19) WILLIAMS supra note 11, at 12 (reporting that in a survey of nearly 800 police agencies, nearly 40 percent reported civil forfeiture proceeds were a necessary part of their budget).
(20) See Garrett supra note 15, at 74.
(21) See Kahl v. Consolidated Gas, Elec. Light & Power Co. of Baltimore, 60 A.2d 754, 758 (Md. 1948) ("The police power is not unlimited, and cannot be used to oppress."); Paul Butler, A Long Step Down the Totalitarian Path, 79 MlSS. L. J. 7, 31-32 (2009) (citing Justice Douglas in WILLIAM O. DOUGLAS, POINTS OF REBELLION (1969)) (noting the growing tendency of government to empower police to oppress minorities, dissenters, and the poor through searches without due process and discretionary arrests).
(22) See discussion infra Section IV.C.
(23) See Eric Blumenson & Eva Nilsen, Policing for Profit, 65 U. Cm. L. REV. 35, 56 (1998).
(24) See discussion infra Section I V.C.
(25) See discussion infra Section IV.A.
(26) 1 Timothy 6:10 (ESV) ("For the love of money is a root of all kinds evils.").
(27) 1 WILLIAM BLACKSTONE, COMMENTARIES *328 ("The sheriff is an officer of very great antiquity in this kingdom, his name being derived from two Saxon words, shire reeve, the bailiff or officer of the shire."); see also, Craig D. Uchida, The Development of the American Police, in CRITICAL ISSUES IN POLICING 11,12 (Roger G. Dunham and Geoffrey P. Alpert eds., 7th ed. 2015).
(28) BLACKSTONE, supra note 27, at *331.
(29) See, e.g., Binderup v. Att'y Gen. U.S., 836 F.3d 336, 373 (3d Cir. 2016) (noting the term "felony" applied only to a few, very dangerous offenses such as murder, rape, arson, and robbery); Garner v. Memphis Police Dep't, 710 F.2d 240, 245 (6th Cir., 1983) (explaining the common-law rule permitting deadly force against fleeing felons evolved when only a few crimes were felonies and all were punishable by death).
(30) Alan Harding, The Origins and Early History of the Keeper of the Peace, 10 TRANSACTIONS OF THE ROYAL HISTORICAL SOCIETY 85,86 (1960).
(31) Id. at 85, 91 (Latin for "guardian of the peace.").
(32) 1 SIR FREDERICK POLLOCK & FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD 594-95 (2d ed. 1898) (An ordinance of 1233 provided that in every villa, watch should be kept throughout the night by at least four men. This was repeated in 1252 by an ordinance which decreed that in every township one or two constables should be appointed. A 1253 ordinance added a provision that arms necessary for the pursuit of malefactors were to be provided at the cost of the township. The whole system was consolidated in 1285 by the Statute of Winchester whereby the constabulary took the form that they were to keep during the rest of the Middle Ages.); see also, Uchida supra note 27, at 13.
(33) See, e.g., Curtis R. Blakely & Vic W. Bumphus, American Criminal Justice Philosophy, 63 FED. PROBATION 62, 62 (1999); Harding, supra note 30, at 86.
(34) Harding, supra note 30, at 104-06 (noting baronial keepers often performed quasi-judicial duties, holding inquests and taking surety for the keeping of the peace as well as taking complaints of trespass).
(35) Uchida, supra note 27, at 13-14.
(36) See discussion infra Section II.B.
(37) Luna, supra note 6, at 703-05.
(38) U.S. v. Cordoba-Hincapie, 825 F. Supp. 485, 490 (E.D.N.Y. 1993) (quoting POLLOCK & MAITLAND, supra note 32, at 470-73).
(39) Id. at 491 (first quoting Paul H. Robinson, A Brief History of Distinctions in Criminal Culpability, 31 HASTINGS L.J. 815, 850 (1980); then quoting W. S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 322 (1927)).
(40) Robinson, supra note 39, at 821 ("[T]he history of the common law tradition . . . may be recognized as reflecting a process of continuous development and, for the most part, refinement of culpability distinctions.").
(41) Cordoba-Hincapie, 825 F. Supp. at 491-92 (quoting 2 WILLIAM BLACKSTONE, COMMENTARIES *20-21 ("Indeed, to make a complete crime cognizable by human laws, there must be both a will and an act....")).
(42) See Uchida, supra note 27, at 15-16; see also Morissette v. U.S., 342 U.S. 246, 252-54 (1952).
(43) See, e.g., HARRIET MARTINEAU, THE POSITIVE PHILOSOPHY OF AUGUSTE COMTE 26 (1896) ("The law of progress is conspicuously at work throughout human history.").
(44) See, e.g., Luna, supra note 6, at 721-22 (noting that many traditional vice crimes--which concern individual morality--have become extinct, while offenses which cause harm to "society at large" continue to swell in breadth and intensity).
(45) See, e.g. HERBERT BUTTERFIELD, THE WHIG INTERPRETATION OF HISTORY 11 (1931) ("historical personages can easily and irresistibly be classed into the men who furthered progress and the men who tried to hinder it...."); E. P. THOMPSON, THE MAKING OF THE ENGLISH WORKING CLASS 521-30 (1963) (discussing the Luddite movement where medieval cropper guilds were ridiculed for opposing modern gig-mill factories).
(46) JEREMY BENTHAM, AN INTRODUCTION TO THE PRINCIPLES OF MORALS AND LEGISLATION (1789), reprinted in THE ENGLISH PHILOSOPHERS FROM BACON TO MILL 789, 792 (Edwin A. Burtt ed., 1939) ("An action may be said to be conformable to the principle of utility... when the tendency it has to augment the happiness of the community is greater than any to diminish it.").
(47) See, e.g., McLamore v. South Carolina, 409 U.S. 934, 935-36 (1972) (noting what constitutes cruel and unusual punishment is not rigid but progressive and acquires new meaning as society becomes enlightened).
(48) See, e.g., David M. Rabban, Free Speech in Progressive Social Thought, 74 TEXAS L. R. 951, 959 (noting progressive intellectuals believed that only exceptionally intelligent and specially-trained experts had the ability to critically examine society).
(49) See Robin West, Rights, Capabilities, and the Good Society, 69 FORDHAM L. R. 1901, 1904 (2001) ("Worse, liberal constitutional rights... actually limit the state's authority to take action to secure the material preconditions of the good society.").
(50) See Dunham supra note 13, at 8; see also Paul J. Larkin, Jr., Taking Mistakes Seriously, 28 BYU J. OF PUB. L. 71, 80-81 (2013) (discussing overcriminalization of the law); Luna, supra note 6, at 711.
(51) Cordoba-Hincapie, 825 F. Supp. at 496 (quoting Francis Bowes Sayre, Public Welfare Offenses, 33 COLUM. L. REV 55, 78 (1933)).
(52) Id.; see also Morissette, 342 U.S. at 252-54 (noting the dangers of modern industrial society has engendered increasingly numerous and detailed regulations which call into existence new duties and crimes which disregard any ingredient of intent); U.S. v. Dotterweich, 320 U.S. 277, 280-81 (1943) (recognizing a now-familiar type of legislation whereby penalties serve as an effective means of regulation and dispenses with intent in the interest of the larger good, putting "the burden of acting at hazard upon a person otherwise innocent" but statutorily responsible).
(53) See Cordoba-Hincapie, 825 F. Supp. at 497; see also Staples v. U.S., 511 U.S. 600,616-17(1994).
(54) Morissette, 342 U.S. at 256 ("While such offenses do not threaten the security of the state in the manner of treason, they may be regarded as offenses against its authority, for their occurrence impairs the efficiency of controls deemed essential to the social order as presently constituted.").
(55) Harrison Narcotics Tax Act, ch. 1, 38 Stat. 785 (1914) superseded by Comprehensive Drug Abuse and Prevention Act, 21 U.S.C. [section] 801.
(56) See U.S. v. Moore, 423 U.S. 122, 132 (1975).
(57) Comprehensive Drug Abuse and Prevention Act, 21 U.S.C. [section] 801.
(58) Katherine Baicker & Mireille Jacobson, Finders Keepers: Forfeiture Laws, Policing Incentives, and Local Budgets, 91 J. OF PUB. ECON. 2113, 2116 (2007).
(59) Frank J. Remington, The Role of Police in a Democratic Society, 56 J. OF CRIM. L. AND CRIMINOLOGY 361,362 (1965).
(60) Id.; see also Foley, 435 U.S. at 299 ("Clearly the exercise of police authority calls for a very high degree of judgment and discretion...."); Dunham supra note 13, at 5 ("The power is delegated and must be exercised according to the judgment of the individuals to whom it is delegated.").
(61) POLICE EXECUTIVE RESEARCH FORUM, POLICING AND THE ECONOMIC DOWNTURN 32 (2013).
(62) See, e.g., Nina L. Pickering, Local Control vs. Poor Patrol, 86 B. U. L. REV. 741, 742-43 (2006); Stewart E. Sterk & Mitchell L. Engler, Property Tax Reassessment, 81 NOTRE DAME L. REV. 1037,1037 (2006).
(63) CITY OF MONTGOMERY, DEP'T OF FIN., COMPREHENSIVE ANN. FIN. REP. 34-35 (2015).
(64) Michelle Wilde Anderson, The New Minimal Cities, 123 YALE L.J. 1118, 1141-42 (2014).
(66) Id. at 1130-31 (noting that between 2008 and 2013, twenty-eight municipalities declared bankruptcy, including five of the six largest municipal bankruptcies in American history).
(67) Id. at 1 142-43; see also POLICE EXEC. RESEARCH FORUM, POLICING AND THE ECONOMIC DOWNTURN 14 (2013) (In Camden, New Jersey, for example, the police operating budget fell 24% between 2009 and 2011.).
(68) POLICE: EXEC. RESEARCH FORUM, IS THE ECONOMIC DOWNTURN FUNDAMENTALLY CHANGING HOW WE POLICE? 1 (2010) [hereinafter How WE POLICE].
(69) Id. at 2.
(70) US DEPT. OF JUST., OFF. OF COMMUNITY-ORIENTED POLICING SERV., THE IMPACT OF THE ECONOMIC DOWNTURN ON AMERICAN POLICE AGENCIES, 12-19 (2011).
(71) Id. at 20 (citing various ways municipalities have modified responses to calls); Anderson, supra note 64, at 1163.
(72) Blumenson, supra note 23, at 65; How WE POLICE 20-21.
(73) Nicholas M. McLean, Livelihood, Ability to Pay, and the Original Meaning of the Excessive Fines Clause, 40 HASTINGS CONST. L. Q. 833, 887 (2013) (noting that since the 1990s, state and local governments have increasingly turned to fees to stay afloat and such practices have accelerated in recent years amid serious fiscal issues).
(74) See Paul LaCommare, Generating New Revenue Streams, 11 THE POLICE CHIEF 22, 22 (2010); How WE POLICE, supra note 68, at 15-16.
(73) Dieterle, supra note 15 ("[L]ocal governments that saw a dip in revenue from traditional sources, such as property taxes, were more likely to respond by increasing the number of tickets they issued.").
(76) Baicker, supra note 58, at 2116.
(77) Id.; see also U.S. v. Parcel of Land, Bldgs., Appurtenances and Improvements, Known as 92 Buena Vista Ave., Rumson, N.J., 507 U.S. 111, 121-22 (1993).
(78) WILLIAMS, supra note 11, at 10.
(79) Baicker, supra note 58, at 2216; see also, Policing and Profit, supra note 16, at 1732.
(81) See supra note 16 and accompanying text.
(82) Blumenson, supra note 23, at 56.
(83) WILLIAMS, supra note 11, at 11-12.
(84) Brian A. Jackson, To Serve and Collect? Police Department Funding, Effectiveness, and Legitimacy, THE RAND BLOC (March 26, 2015) http://www.rand.org/blog/2015/03/to-serve-and-collect.html.
(85) Id.; see also Blumenson, supra note 23, at 67-68, 82 ("[T]he economic rewards ... are so large that some police are tempted to pursue them illegally when necessary."); Dieterle, supra note 15.
(86) THOMAS HARVEY ET AL., ARCHCITY DEFENDERS: MUNICIPAL COURTS WHITE PAPER 4 (2014).
(87) Id. at 5.
(88) Radley Balko, How Municipalities in St. Louis County, Mo. Profit from Poverty, WASHINGTON POST (September 3, 2014), https://www.washingtonpost.com/news/the-watch/wp/2014/09/03/how-st-louis-county-missouri-profits-from-poverty/?utm_term=.76257512c88b.
(89) CITY OF MONTGOMERY, supra note 63.
(90) HARVEY, supra note 86, at 9.
(91) Id. at 10.
(92) Balko, supra note 88.
(93) Id.; see also Durrie Bouscaren, Some Bel-Ridge Trustees Say Village Police Problems Have Been Ignored, ST. LOUIS PUBLIC RADIO (Nov. 9, 2014), http://news.stlpublicradio.org/post/some-bel-ridge-trustees-say-village-police-problems-have-been-ignored#stream/0.
(94) Joseph Shapiro, As Court Fees Rise, The Poor Are Paying the Price, NPR NEWS INVESTIGATIONS (May 19, 2014, 4:02 PM), http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-thc-poor.
(95) O'Harrow, supra note 18. Questions of police militarization are beyond the scope of this article but it begs the question, does society want its local police departments rolling into neighborhoods like an occupying army? If so, what message does it send to the inhabitants?
(99) Balko, supra note 88.
(104) Sarah Stillman, Taken, THE NEW YORKER: A REPORTER AT LARGE (August 12, 2013), http://www.newyorker.com/magazine/2013/08/12/taken.
(107) Mobley v. City of Detroit, 938 F. Supp. 2d 669, 679-84 (E.D. Mich. 2012).
(108) Stillman, supra note 104.
(114) WILLIAMS, supra note 11, at 21.
(115) See Luna, supra note 6, at 724-25; Wilkinson v. Skinner, 312 N.E.2d 158, 164 (N.Y. 1974) ("The role of the courts is... to put a stop to... practices that are unconstitutional or illegal."); see also U.S. v. Calandra, 414 U.S. 338, 347-48 (1974) (noting the exclusionary rule is a "judicially created remedy" designed to "deter future unlawful police conduct" in order to "compel respect for" Fourth Amendment guarantees).
(116) Shapiro, supra note 94 ("The only reason that the court is in operation and doing business... is because that defendant has come in and is a user of those services....").
(117) See, e.g., Harris v. Virginia, 400 S.E.2d 191, 193 (1991) (analyzing Terry and noting the Supreme Court was "cautious not to validate" generalized police searches of citizens not under arrest); People v. Machupa, 872 P.2d 114, 122 (Cal. 1994) (surveying numerous courts that have declined to validate warrantless police searches on the basis of the post hoc issuance of a warrant).
(118) Shapiro, supra note 94 ("[T]he jail time wasn't punishment for the crime, but for the failure to pay....").
(119) FERGUSON REP supra note 17, at 15.
(120) Id. at 16; see also Terry, 392 U.S. at 16, 21 (recognizing that whenever a police officer accosts an individual and restrains his freedom to walk away, he has seized that person and in justifying the particular intrusion, the officer must be able to point to "specific and articulable facts" which, taken together with rational inferences, reasonably warrant that intrusion); Delaware v. Prouse, 440 U.S. 648, 663 (1979) (holding that stopping a driver solely to check his license and registration is unreasonable under the Fourth Amendment).
(121) FERGUSON REP., supra note 17, at 22 (Several law enforcement agencies around St. Louis use a system of "wanteds" or "stop orders" as a substitute for seeking judicial approval of an arrest warrant. Instead of swearing out a warrant seeking judicial authorization from a neutral and detached magistrate, officers make a probable cause determination on their own.).
(122) Id. at 43.
(123) U.S. DEP'T OF JUST., INVESTIGATION OF THE BALTIMORE CITY POLICE DEPARTMENT 21 (2016) [hereinafter BALTIMORE REP.].
(124) Id. at 27.
(125) Id. at 28.
(126) Id. at 30-32 (citing United States v. Powell, 666 F.3d 180, 185 (4th Cir. 2011)) ("[B]efore an officer places a hand on the person of a citizen in search of anything, he must have constitutionally adequate, reasonable grounds for doing so.").
(127) Id. at 34 (finding that when officers make arrests in the field without a warrant, they often do so without probable cause).
(128) Id. at 35.
(129) See discussion infra Section I V.C.
(130) Shapiro, supra note 94 ("The people most likely to face arrest and go through the courts are poor. . ..").
(131) FERGUSON REP., supra note 17, at 43. (finding that while the municipal court did not generally deem code violations as jail-worthy, it routinely viewed the failure to appear in court to remit payment as jail-worthy, and commonly issued warrants to arrest individuals who failed to make timely payment).
(132) See Griffin v. Illinois, 351 U.S. 12, 17 (1956) ("Both equal protection and due process emphasize the central aim of our entire judicial system--all people charged with a crime must, so far as the law is concerned, 'stand on an equality before the bar of justice in every American court.'").
(133) See M.L.B. v. S.L.J., 519 U.S. 102, 106 (1996) (holding statutes that conditioned indigent mother's right to appeal judgment terminating her parental rights on prepayment of costs violated equal protection and due process clauses of Fourteenth Amendment); Boddie v. Connecticut, 401 U.S. 371, 383 (1971) (holding that due process prohibits a state from denying, solely because of inability to pay court fees and costs, access to its courts to indigents seeking judicial dissolution of their marriages); Griffin, 351 U.S. at 24 (holding that destitute defendants must be afforded as adequate appellate review as defendants who have money enough to buy transcripts); see also Mayer, 404 at 195-96 ("Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat prohibition against pricing indigent defendants out of as effective an appeal as would be available to others able to pay their own way. The invidiousness of the discrimination that exists when criminal procedures are made available only to those who can pay is not erased by any differences in the sentences that may be imposed. The State's fiscal interest is, therefore, irrelevant.").
(134) Bearden v. Georgia, 461 U.S. 660, 667-68 (1983).
(135) Id. at 670.
(136) Id. at 672.
(137) Id. at 668.
(138) See, e.g., HUMAN RIGHTS WATCH, PROFITING FROM PROBATION 39 (2014).
(139) McLean, supra note 73 at 886-87; Walter Kurtz, Pay or Stay, 51 TENN. BAR J. 16, 16 (2015); Ann Cammett, Shadow Citizens, 117 PENN. ST. L. REV. 349, 381-82 (2012).
(140) See Cordoba-Hincapie, 825 F. Supp at 496-97 (quoting various authorities arguing that public-welfare offenses involve "a relatively small fine... not including imprisonment," are not "criminal in any real sense," carry "a relatively light penalty," and does no "damage to an offender's reputation").
(141) See Staples, 511 U.S. at 617 (noting courts have justified the absence of mens rea in part on the basis that the offenses did not bear the same punishment as "infamous crimes" and that offenses punishable by imprisonment cannot be understood to be public welfare offenses).
(142) Id. at 496 (quoting Francis Bowes Sayre, Public Welfare Offenses, 33 COLUM. L. REV 55,78 (1933) ("[I]f punishment of the wrongdoer far outweighs regulation of the social order as a purpose of the law in question, then mens rea is probably required.")).
(143) WILLIAMS, supra note 11, at 23; see also Parcel of Land, 507 U.S. at 126-27 (finding that the government's right to property used in the commission of a criminal act vests immediately upon commission of the act, although their title is not perfected until judicial condemnation; meaning the property owner must prove their innocence in court to reclaim their property).
(144) WILLIAMS, supra note 11, at 23.
(145) Id. at 22.
(148) Still man, supra note 104.
(149) Griffin, 351 U.S. at 19 ("There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.").
(150) Policing and Profit, supra note 16, at 1727 (describing examples where local governments charge defendants for police investigations, prosecution costs, a public defender, and for incarceration); see also Shapiro, supra note 94 (listing twenty-one common court fees applied from pre-conviction to parole).
(151) Policing and Profit, supra note 16, at 1727-28 (citing a practice in Washington, D.C. where arrestees can pay police to end a case or pay prosecutors to suspend prosecution).
(152) Shapiro, supra note 94.
(154) See, e.g., Shapiro, supra note 94 (describing the finding from a Washington state commission that the average fine in a felony case is $2,500 and that by making only the minimum payment of $ 10 per month at 12% interest would result in a remaining debt of $3,000 after four years).
(155) Id. at 1728.
(156) McLean, supra note 73, at 887-89 (noting criminal justice debt drags people further away from reintegration with society and expands the duration and intensity of criminal penalties).
(157) See THE DECLARATION OF INDEPENDENCE ("Governments are instituted among Men, deriving their just powers from the consent of the governed...."); see also W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 641 (1943) ("We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion....").
(158) Mike Hough et al., Procedural Justice, Trust and Institutional Legitimacy, 4 POLICING 203, 205 (2010); see also Dunham, supra note 13, at 5 (describing the social contract between police and the public whereby citizens surrender their right to use force to the police in exchange for a net increase in freedom and security for all).
(159) See Henry N. Hart, Jr., The Aims of the Criminal Law, 23 LAW & CONTEMP. PROBS. 401, 416 (1958) ("[I]f an individual knowingly takes a risk of the kind in which the community condemns as plainly unjustifiable, then he is morally blameworthy and can properly adjudged a criminal.").
(160) See OLIVER WENDELL HOLMES, THE COMMON LAW 50 (1881) ("[A] law which punished conduct which would not be blameworthy in the average member of the community would be too severe for that community to bear."); see also Dunham supra note 13, at 6 ("if the police use their authority and force in an exploitive fashion, it would literally undermine their own justification [for existing]."); Luna, supra note 6, at 729 (arguing overcriminalization dilutes the moral force of the criminal justice system).
(161) Hough, supra, note 158.
(162) Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 CRIME AND JUSTICE 283, 286 (2003); see also Scott supra note 14, at 179 (arguing that heavy reliance by police on criminal arrest and citations, which commonly convert into criminal arrest warrants when offenders do not appear in court or pay the fines, threatens the legitimacy of police because many citizens perceive that they disproportionately bear the costs of society's response to crime and disorder).
(163) Hough, supra, note 158.
(164) Dunham supra note 13, at 7 ("the police have learned that they need a cooperative public to be effective in controlling crime and maintaining order.").
(165) Hough, supra, note 158, at 204.
(166) Luna, supra note 6, at 727 ("Mistrusting citizens are less likely to assist law enforcement and to obey legal commands, which undermines the efforts of police and... renders the law counterproductive.").
(167) BALTIMORE REPORT, supra note 123, at 29 (concluding that unlawful stops and seizures eroded public confidence in law enforcement and escalated street encounters, sometimes resulting in officers deploying unnecessary force or committing additional constitutional violations).
(168) See WILLIAMS, supra note 11, at 14; Stillman, supra note 104.
(169) Stillman, supra note 104.
(170) John Yodcr & Brad Gates, Government Self-Interest Corrupted a Crime-Fighting Tool into an Evil, The WASHINGTON POST, OPINIONS (September 18, 2014), https://www.washingtonpost.com/opinions/abolish-thc-civil-asset-forfeiture-program-we-helped-create/2014/09/18/72f089ac-3d02-11 e4-b()ea-8141703bbf6f_story.html?utm_term==.c57a58df539b.
(172) Civil Asset Forfeiture Reform Act of 2000, Pub. L. No. 106-185, 114 Stat. 202 (2000).
(173) See WILLIAMS, supra note 11, at 23; John Malcolm, Civil Asset Forfeiture, THE HERITAGE FOUNDATION: CRIME AND JUSTICE (April 20, 2015), http://www.heritage.org/crime-and-justice/report/civil-asset-forfeiture-good-intentions-gone-awry-and-the-need-reform#_ftnrefl9.
(174) Tim Walberg & Kevin Cotter, Innocent Until Proven Guilty? Not Quite, LANSING STATE JOURNAL: OPINION (June 4, 2015, 5:48 PM), http://www.lansingstatejournal.com/story/opinion/contributors/viewpoints/2015/06/04/rep-tim-walberg-rep-kevin-cotter-innocent-proven-guilty-quite/28436641/(discussing the Fifth Amendment Integrity Restoration Act).
(175) Dep't of Just., Off. Of the Att'y Gen., Prohibition on Certain Federal Adoptions of Seizures by State and Local Law Enforcement Agencies (Jan. 16, 2015), https://www.justice.gov/file/318146/download.
(177) Dep't of Just., Off. Of the Att'y Gen., Federal Forfeiture of Property Seized by State and Local Law Enforcement Agencies (July 19, 2017), https://www.justice.gov/file/982611/download.
(178) Austin v. U.S., 506 U.S. 602, 604 (1993).
(179) Id. at 621-22.
(180) Id. at 622.
(181) See, e.g., U.S. v. Parcel of Property, 337 F.3d 225, 232 (2d Cir. 2003); U.S. v. S129,727.00 U.S. Currency, 129 F.3d 486, 493-94 (9th Cir. 1997); U.S. v. Tilley, 18 F.3d 295, 299-30 (5th Cir. 1994).
(182) Bennis v. Michigan, 516 U.S. 442,454 (1996) ("One unaware of the history of forfeiture laws and 200 years of this Court's precedent regarding such laws might well assume that such a scheme is lawless--a violation of due process. This case is a friendly reminder that the Federal Constitution does not prohibit everything that is intensely undesirable.").
(183) Leonard v. Texas, No. 16-122, slip op. (March 6, 2017).
(184) Id. at 5.
(185) Id. at 3-4.
(186) Blumenson, supra note 23, at 111; Dieterle, supra note 15.
(187) See discussion supra Section III.A.
(188) Blumenson, supra note 23, at 84 ("Agencies that can finance themselves... need not justify their activities through any regular budgetary process.").
(189) Id. at 75.
(190) Dieterle, supra note 15 (noting that while property tax increases are usually transparent and heavily debated, increases in fines and fees are opaque and clandestine, undermining the ability of citizens to hold officials accountable).
(191) Jackson, supra note 84.
(192) Anderson, supra note 64, at 1145-46.
(193) Balko, supra note 88.
(194) See discussion supra Section III.B.
(195) Balko, supra note 88.
(196) See Thomas Jefferson, Letter to Colonel Charles Yancey in 10 THE WRITINGS OF THOMAS JEFFERSON 1, 4 (Paul Leicester Ford ed., 1899) ("If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be."); John Adams, A Dissertation on the Canon and Feudal Law in 1 THE ADAMS PAPERS: PAPERS OF JOHN ADAMS 118, 121 (Robert J. Taylor ed., 1977) ("Liberty cannot be preserved without a general knowledge among the people... of the characters and conduct of their rulers."); James Madison, Letter to W.T. Barry (1822), https://www.loc.gov/item/mjm018999/ (last visited March 17, 2017) ("[A] people who mean to be their own Governors must arm themselves with the Power that knowledge gives.").
(197) RICHARD J. COLEY & ANDREW SUM, EDUC. TESTING SERV. CTR. FOR RES. ON HUM. CAP. AND EDUC, FAULT LINES IN OUR DEMOCRACY: CIVIC KNOWLEDGE, VOTING BEHAVIOR, AND crvic ENGAGEMENT IN THE UNITED STATES 24 (2012).
(198) Id. at 21.
(199) Id. at 23.
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|Author:||McBride, Robert A.|
|Publication:||Faulkner Law Review|
|Date:||Mar 22, 2018|
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