Principled Enforcement of Penal Codes

Abstract

This article constitutes my written contribution to the Buffalo Criminal Law Center's symposium on the Model Penal Code. The live component of the symposium was held at SUNY-Buffalo School of Law in anticipation of the American Law Institute's upcoming reexamination of the Model Penal Code. The article notes that legislatures, for a variety of reasons, tend to overcriminalize (i.e., enact broad, sometimes superfluous criminal bans), and, in turn, the courts usually defer to lawmakers. As a consequence, police and prosecutors have vast discretion to enforce or not enforce the codes against a broad range of conduct. Yet law enforcement officials rarely admit their discretion to selectively administer the penal code and instead hide behind the mythical "rule of law" as full enforcement. This false pretense is generally undisturbing to most American communities; selective enforcement hidden behind the myth of full enforcement is acceptable so long as crime rates are low and the streets are safe in their neighborhoods. But in some communities -- particularly poor, urban, largely minority communities -- the reality of selective enforcement creates social distrust of law enforcers, perceptions of illegitimacy in the criminal justice system, and a lower level of legal compliance from community members. In particular, disproportionate vice enforcement in urban ghettos and the resulting effects on the moral authority of criminal law in these communities illustrate the adverse consequences of maintaining the full enforcement conception of the rule of law. To partially bridge the gap between penal code enactment and enforcement -- and with an eye toward remedying the most troublesome consequences of an unprincipled divide -- this article argues for an approach to discretionary enforcement predicated on the values of "procedural justice." This conception of the rule of law requires that both criminal codes and their implementation be generally applicable, publicly known or knowable, clear and understandable, prospective rather than retroactive, and so on, thereby permitting affected parties to assess the bona fides of law and conform their behavior accordingly. Among the means to these ends is what I call "transparent policing," a strategy that allows community members to observe and scrutinize the policy choices of law enforcement, as well as the underlying justifications, and to have a direct say in the formation and reformulation of these decisions. One particularly ambitious example of transparent policing envisions a process of administrative-type rulemaking in an open, dialogic forum, where officials and citizens would debate issues of discretionary enforcement and craft mutually agreeable instruments to limit executive discretion and guide behavior. This process generates principled enforcement of the penal code in distinct but related ways. Law enforcement discretion can be measured by its compliance with announced "principles," jurisprudential devices such as rules or standards intended to guide the behavior of government officials and private citizens. More importantly, the entire program of transparent policing and administrative-type rulemaking is intended to make the divide between code and implementation "principled" -- ensuring that discretionary law enforcement is pursuant to a fair decisionmaking process and consistent with the values of procedural justice. By making police and prosecutor discretion principled, based on announced jurisprudential devices and in harmony with the procedural justice conception of the rule of law, officials can enhance the legitimacy of their efforts and the code itself while increasing popular obedience to legal commands.