The Good Cop: Knowing the Difference Between Lawful or Effective Policing and Rightful Policing -- And Why It Matters

Abstract

There are two dominant ways to evaluate the police. The first is whether their conduct comports with the law. The second approach assesses whether they are effective crime fighters. The legal domain is the province of lawyers and law professors. Their briefs and scholarly writings depend usually on interpretations of constitutional law and assessments of police conduct with reference to that law. Sometimes other bodies of law, such as police agency administrative regulations, civil lawsuits, or the very law that authorizes police to act in the first place—substantive criminal law—are the subject. But the assumption no matter the body of law is that more lawfulness is the ideal goal. Effectiveness at crime fighting has become the other police evaluation metric. This yardstick is of newer vintage than lawfulness, and those who wield it are primarily social scientists—criminologists and economists —who attempt to find causal connections between various police practices and crime statistics. The theoretical model these social scientists employ typically assumes that offenders are rational actors who are persuaded to desist from criminal behavior when the prospect of formal punishment outweighs the benefits of criminal behavior. This Essay will present a third view called "rightful policing." Rightful policing attempts to account for what people say that they care about when assessing police agent behavior specifically and police agencies in general. It is different from lawful policing and efficient policing in at least two ways. First, rightful policing does not depend on the actual lawfulness of police conduct. Instead, rightful policing depends primarily on the procedural justice or fairness of police conduct. Second, rightful policing does not depend on an assessment of police as ever more effective crime fighters, although it turns out that rightful policing often leads to more compliance with the law and therefore lower crime rates. Additionally, and critically, it is likely this third way helps us move toward police governance that is substantially, as opposed to rhetorically, democratic.