Accountable Policing

Abstract

In the United States, policing is primarily the job of local government agencies. Those agencies are politically accountable to local electorates, and legally accountable to the many constitutional rules that regulate searches and seizures and police interrogation. This system suffers from two key problems. Appellate courts - the principal authors of the constitutional code of policing - are poorly positioned to craft wise rules in this area, mostly because they lack the necessary information. And local governments are poorly positioned to fund redistributive services like policing. Consequently, urban policing is both badly regulated and seriously underfunded.

Congress and state legislatures hold the key to solving both problems. They are better regulators than appellate courts - and, contrary to the conventional academic wisdom, they have been fairly aggressive regulators in those areas in which constitutional law leaves them room to regulate. Plus, unlike courts, legislators can spend and regulate at the same time, thereby addressing the underfunding problem. Greater use of constitutional default rules, in place of the mandatory rules that dominate the field today, would encourage state and federal legislation and thereby promote better funding. And better-funded local police forces might help to bring down America's astronomically high imprisonment rate: both among American states and among European countries, higher rates of policing appear to be correlated with lower rates of punishment. Solving the police funding problem might help to solve other, more important problems as well.