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Law Enforcement and the Rule-of-Law: Is There a Tradeoff?

NCJ Number
David H. Bayley Ph.D.
Date Published
July 2003
10 pages
This article assesses whether a strong evidence-based argument can be made to support the proposition that when police violate the rule-of-law they do more harm than good with respect to their collective, as well as personal, interests.
In every society the public worries about the integrity of the police and they become easily concerned that the police do not abide by the law and misuse their power. At the same time, there is a nearly universal mindset among police that abiding by the rule-of-law and adhering to recognized standards of human rights is sometimes too restrictive, preventing victims from obtaining justice, allowing criminals to go unpunished, and placing society at unacceptable risk. While the public is most concerned about dramatic infringements, most of the liberties taken by the police are mundane, routinized, and difficult to detect. This paper explores whether the effectiveness of the police will be better served by scrupulous regard for the rule-of-law rather than selective disregard for the rule-of-law. In other words, the police must be shown that the costs to them of violating the rule-of-law are greater than the benefits, that doing right is not only commendable, but furthers their own collective self-interest. The author asserts that here are at least seven factors that encourage the police to violate the rule-of-law and human rights and include: 1) public safety, 2) unique empowerment, 3) public respect, 4) career success, 5) belonging, 6) complexity of the law, and 7) police personality. In addition, there are seven arguments that can be made that violating the rule-of-law does not serve the interests of the police. These arguments include: 1) violating the rule-of-law contributes marginally to deterrence; 2) violating the rule-of-law reduces enforcement effectiveness; 3) violating the rule-of-law weakens the authority of law; 4) violating the rule-of-law scapegoats the police; 5) violating the rule-of-law depresses morale and makes the police job less satisfying; 6) violating the rule-of-law wastes community resources; and 7) violating the rule-of-law places police officers at risk. The author believes that the crime-control value of strict adherence to the rule-of-law has not been conclusively demonstrated and that a stronger, evidence-based case can be made that defending human rights enhances police effectiveness than that doing so hampers it. Violating the rule-of-law in order to control crime is mistaken and the best place to start in reorienting police practices is with the managers of police agencies. References