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Citation: 2 Criminology & Pub. Pol'y 133 2002-2003

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COMMENTARY

LAW ENFORCEMENT AND THE RULE OF

LAW: IS THERE A TRADEOFF?
DAVID H. BAYLEY
State University of New York at Albany

ABSTRACT
This essay assesses whether a strong evidence-based argument can be
made to support the proposition that when police violate the rule-oflaw they do more harm than good with respect to their collective, as
well as personal,interests. The assessment is undertaken to counter the
common presumption among police officers that circumstances often
justify cutting legal corners in the interests of public safety. The essay
first examines what research shows about the facilitatorsof police law
breaking.It then examines seven reasons why violating the rule-of-law
works against the instrumental interests of the police themselves. After
assessing the strength of the evidence against the instrumental benefit of
violating the rule-of-law, suggestions are made about research that is
needed to make the case more compelling. In conclusion, the essay discusses how empirical knowledge might be most productively used to
change the culture of contemporary policing.

KEYWORDS: Police, Civil Liberties, Police Effectiveness, Accountability, Police Integrity

The public in every society worries about the integrity of its police.
Some have better reasons for this than do others. But everywhere, regardless of the objective incidence of misbehavior, people become easily concerned that the police do not abide by the law and misuse their power
(Bayley, 1996a). At the same time, it is my experience that the police in
every society believe that they must occasionally cut legal corners in order
to provide effective protection to that very same public. Among police
there is a nearly universal mindset 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 (Crawshaw, 2000).
This mindset of the police, and the behavior it engenders, shows up in a
number of ways. Police complain almost everywhere about the uncertainties of criminal justice processing-slipshod prosecutions, inept and venal
judges, unwilling witnesses, cumbersome procedures, and laws loaded in
VOLUME 2

NUMBER 1

2002

PP 133-154

BAYLEY
favor of suspects. Police are regularly accused, even in countries with
human rights records that are good by world standards, of engaging in
unjustified stops and seizures (Bayley, 1996a). They have been found to
fabricate evidence and testify falsely in order to gain convictions. So common did these practices seem to be in New York City recently that the
Mollen Commission coined a new word to describe them-"testilying"
(1994). Complaints of excessive use of force ostensibly to control crime are
also common around the world, whether to obtain confessions from
unwilling suspects or to intimidate would-be criminals (Bayley, 1996a).
Intimidation is especially disturbing when it is directed at whole classes of
individuals, as when police say that "those people only understand force"
or "people like that" have to be taught respect for the law.
Although the public is most concerned about dramatic infringements of
the rule-of-law, such as brutality, planting false evidence, and lying in
courts, most of the liberties taken by police are more mundane, routinized,
and difficult to detect. For example, a Texas police officer told me how he
had developed a challenge-proof method for stopping motorists on suspicion, without a shred of probable cause. After stopping a car, he would
thump the left rear fender with his hand as he walked up to it. If the driver
asked why the officer had stopped him, the officer would say that the left
rear taillight was not working. If the driver checked for himself, which was
unusual, the officer would say that his thump must have restored the connection and he would advise the driver, in the interest of safety, to get it
checked at a service station. Thus, an illegal stop could be disguised as
helpful assistance.
The usual explanation for such behavior is that the police do not understand what is right and wrong; that the values of the police need changing
to emphasize more scrupulous adherence to law and to human rights
(Barker and Carter, 1986; Klockars et al., 2000; Skolnick and Fyfe, 1993).
It follows, then, that the solution is to raise the normative consciousness of
the police, to convince them that they have a duty both to uphold the ruleof-law and to provide public safety. I think this diagnosis is mistaken. The
problem is not normative, but cognitive. The police generally know what
behaviors are right and wrong. The problem is that they believe that the
violation of law and of human rights is sometimes required for effective
law enforcement. For example, a survey undertaken for the U.S. Department of Justice found that 43% of 925 officers randomly selected from 121
American police departments thought that "always following the rules is
not compatible with getting the job done" (Weisburd et al., 2000). Let it be
said, however, that 57.2% disagreed. In other words, many police have
concluded, and are willing to admit it to anonymous telephone surveyors,
that rigid adherence to the rule-of-law is sometimes contrary to their
responsibility to protect communities effectively.

COMMENTARY
If my thesis is correct, police must be shown that the costs to them of
violating the rule-of-law are greater than are the benefits, that doing right
is not only commendable normatively, but also furthers their own collective self-interest (Mastrofski, 1999). Moral exhortation alone is unpersuasive because it does not address the tradeoffs that police are convinced
they face. This explains why, in my experience, lecturing to the police
about human rights is met with palpable lack of interest-eyelids droop,
note-taking stops, and faces become wooden. The police act as if they
know all that, which in many cases is true. The problem is that lectures on
human rights are a necessary but not sufficient corrective to the dilemma
police officers face. What is needed instead is an evidence-based demonstration that rectitude is useful to the police in fulfilling their mission of
preventing and controlling crime. This sort of argument will get their
attention.
Can this be done? Is it possible to demonstrate in a convincing way that
the benefits from behaving according to recognized standards of human
rights outweigh the costs of not doing so? Can the self-interest of the
police be harnessed to the achievement of more scrupulous behavior?
The task of this paper is to explore whether a strong case can be made
that the effectiveness of the police will be better served by scrupulous
regard for the rule-of-law rather than selective disregard for the rule-oflaw. The discussion will be in two parts: first, a discussion of factors that
contribute to the disregard for the rule-of-law by police and, second, an
examination of the disadvantages to police of disregarding the rule-of-law.

REASONS FOR LAW-BREAKING

There are at least seven factors that encourage police officers to violate
the rule-of-law and human rights.
PUBLIC SAFETY
Police are part of the criminal justice system whose explicit purpose is to
control crime through deterrence, that is, to catch and punish people who
violate the law. Despite slogans about serving and protecting, the essential
mission of the police is to control and deter. They are the largest cog in the
crime-control machine. Although they may understand, at least in democratic societies, that crime-control must be balanced by due process, their
professional interest is loaded heavily in favor of the former (Packer,
1968).
Their occupational attachment to the goal of crime-control through
deterrence is given emotional weight by their daily experience with the
suffering of crime victims. Unlike judges and prosecutors, police see the
raw hurt that criminality inflicts. For the police, as well as for most of us,

BAYLEY
doing justice in such circumstances means ensuring that the perpetrators
are caught and punished (Bayley and Bittner, 1984). The police are
tempted to violate the law in order to serve the larger interest of natural
justice. This is often referred to as "noble cause" misbehavior (Fitzgerald,
1989; Mollen, 1995).
UNIQUE EMPOWERMENT
Among agents of government, the police have a unique power-they
can physically constrain individuals. In order to provide public safety, the
police are allowed to lay hands on people's bodies against their will. This is
the authorization that defines them (Bayley, 1985). The problem is that it
is only a short step from unique authorization to preferred tool (Goldstein,
1990). Zealous law enforcement inevitably takes the form of overusing this
unique power. The defining misbehavior of the police, then, is the misuse
of force.
PUBLIC RESPECT
The public is as ambivalent as are the police about the balance between
crime-control and due process. They too want guilty people to be caught
and punished, especially when they have been victimized, and they communicate that sentiment forcefully to the police. For example, it is my
strong impression that letters of commendation about individual police
officers-"attaboys"-overwhelmingly praise action rather than restraint.
I also suspect that police officers hear more complaints about their negligence and ineffectiveness in the line of duty than about their overreaching.
Not only do police feel pressure from the public to overstep their
authority, they are taught in police schools that it is essential to establish
immediate control in any confrontational situation (Bayley and Bittner,
1984). This is most commonly done through using or threatening to use the
forceful authority inherent in the police role. The Rodney King incident is
an extreme example of this. Police also believe that the public cannot be
allowed to ignore or challenge the authority of the police. Police must gain
what might be called "situational respect." Research has shown repeatedly
that showing disrespect to the police is one of the strongest determinants
of arrest in encounters where the police have wide latitude of action (Bayley, 1986; Klinger, 1994; Riksheim and Chermak, 1993; Sherman, 1980;
Reiss, 1971) Police refer to this as "flunking the attitude test."
CAREER SUCCESS
Police organizations measure themselves in terms of crimes solved
(meaning suspects arrested), stolen goods recovered, contraband seized,
and citations issued. Not surprisingly, the careers of individual officers

COMMENTARY
depend on performing well on the same measures. Law-enforcement
actions are the basis for promotions, pay incentives, medals, commendations, and choice assignments. At the same time, it is difficult for managers
of police agencies to reward officers for showing restraint and for strictly
protecting human rights. How are they to know when problematic behavior did not occur? As a result, the behavior of officers with respect to
legality is generally ignored by the organizations they belong to except
when violations are found out. Because the reward structure in policing,
reinforced by problems of evaluation, puts a premium on crime-control,
officers are faced with balancing the palpable need to demonstrate lawenforcement activity against the uncertain risk of being caught for transgressing legal boundaries.
BELONGING
Police want to be well regarded by the people they work with, as do
people in every walk of life. They want to be accepted, to fit in, to be part
of the group. If "police culture" views strict adherence to the rule-of-law
as an impediment to being a good cop, individual officers will behave
accordingly. Even in egregious incidents of corruption and brutality, it is
painfully difficult for police colleagues to speak out (Fitzgerald, 1989;
Knapp, 1973; Maas, 1973; Mollen, 1994; Skolnick and Fyfe, 1993). This
need to conform, so common in human life, is undoubtedly facilitated with
police because the police officers who are in most contact with the public
tend to be young. They want to be accepted into their new community just
as much as do members of college fraternities and sororities or recruits to
the Marines.
COMPLEXITY OF THE LAW
The laws that define propriety for police are often complex and unclear.
In his book Guilty, Judge Harold Rothwax shows that even judges and
prosecutors disagree about the appropriate application of laws that the
police are routinely called on to follow, particularly in the critical area of
search and seizure (1997). Because the content of the criminal law frequently contains few "bright lines" and these lines shift with judicial interpretations and new legislation, the law becomes suspect in the minds of
police (Eterno, 1999). They see it as an artifact of interpretation, as well as
of politics, and not as a compelling directive.
This impression is reinforced by the behavior of other people in the
criminal justice system. The "dirty secret" of contemporary American
criminal justice is that prosecutors and judges know full well the corners
that police cut and often turn a blind eye. The success of the entire system

BAYLEY
depends on convicting the guilty as quickly as possible, even if that means
taking liberties with strict due process.
Furthermore, police learn very quickly that the application of law
requires judgment and the exercise of discretion (Bayley and Bittner,
1984; Bittner, 1974; Brown, 1981; Davis, 1975; Rubinstein, 1973; Skolnick,
1994). This makes the law seem less a commandment than a convenience
to be used to achieve control and justice.
POLICE PERSONALITY
Studies have shown repeatedly that police tend to be practical, actionoriented people (Bayley, 1994; Bayley and Bittner, 1984; Bayley and Mendelson, 1969; Brown, 1981; Skolnick, 1994). They want to bring closure,
results, and solutions to the disorderly, ambiguous situations they confront. Criminal justice processes, however, tend to be prolonged, unpredictable, and, from the police point of view, inadequate. In such
circumstances, police are tempted to shortcut the law so as to deliver what
their role requires, namely, certain and speedy deterrence.
The power of the factors mentioned here as facilitators of disregard for
the rule-of-law should not be underestimated. How many of us on the
outside of policing if similarly situated could hold out against the temptation to render justice in "natural" rather than legal terms? The wonder of
policing in countries like the United States is not that police take liberties
with freedom, but that they do not do it more often-or at least are not
seen to be doing it more often.
The task to be addressed now is to assess how strong an instrumental
case can be made that it is in the interest of the police, individually as well
as collectively, to adhere strictly to the rule-of-law regardless of the
circumstances.

THE DISADVANTAGES OF LAW BREAKING

Seven arguments can be made that violating the rule-of-law does not
serve the interests of the police. The research in support of each will be
cited.
VIOLATING THE RULE-OF-LAW CONTRIBUTES MARGINALLY
TO DETERRENCE
The fact is that "getting tough on crime" by overstepping legal boundaries produces very small, if any, gains in reducing criminality. To begin
with, the criminal justice system is very ineffective at any time in matching
punishment to crime. At every stage of criminal-justice processing, the
ability to deliver punishment to guilty persons decreases, although the

COMMENTARY
extent of the slippage undoubtedly varies among jurisdictions, especially
among countries. I have estimated that less than 5% of crimes reported to
police in the United States result in either a fine or incarceration (Bayley,
1991). Approximately 50% of all crimes are not reported at all; of those,
about 22% are solved, reducing the ratio to reported crime to 11%; perhaps as few as 50% of cases solved are prosecuted (so 5.5%); 80% of those
prosecuted are convicted (so 4.4%); and many of those convictions produce suspended sentences. To be fair, however, the ratio of punishment to
crime is higher than this average for more serious crimes, such as murder,
aggravated assault, and robbery.
Furthermore, research has shown repeatedly that crime is much more
responsive to social conditions than to legal sanctions. Criminologists estimate that close to 80% of the variation in crime rates within developed
countries can be accounted for by unemployment, income, education,
racial heterogeneity, residential mobility, home ownership, and singlehouseholds headed by women (Braithwaite, 1979, 1989). Illegality on the
part of the police can make only a small difference in an already small
effect.
Research also shows that some of the standard strategies employed
against crime by the police, some of which push the envelop of legality, are
of dubious efficacy. For example, research has shown that only about 10%
of proactive traffic stops produced evidence of more serious criminality,
such as carrying contraband (Harris, 2001). In New York City, arrests were
made in about 10% of all "stop and frisks," regardless of the race of the
person stopped (New York Attorney General, 1999) A study by the U.S.
Customs Service found that contraband was found in 6% of searches of
both black and white travelers (1998). When racial and gender profiling
was eliminated in 1998, the success rate actually improved to almost 16%
(Cole and Lamberth, 2001). At the same time, analysis of data from the
Maryland highway patrol in response to concern about racial profiling in
stopping suspected drug traffickers found that "hits" were made in about
28% of the stops, almost exactly the same for blacks and whites (Lamberth, 1999).
Contrary to police predictions, promulgation of Miranda warnings did
not result in a decline in the success of criminal prosecution (American
Civil Liberties Union, 2000; Cassell and Hajman, 1996; Leo, 1996;
Schulhoffer, 1996; Thomas, 1996). Nor did the enactment by police departments of policies restricting the use of deadly force result in increases in
crime or injuries to officers or decreases in arrest rates (Fyfe, 1988;
Walker, 1993).
It is also safe to say on the basis of research into the efficacy of police
strategies and tactics since the President's Commission on Law Enforcement and the Administration of Justice (1967) that police claim greater

BAYLEY
success for their core strategies than is warranted (Bayley, 1994; Sherman,
2000). In a recent review of research into the effect of police actions on
crime, John Eck and Edward Maguire concluded that it is a myth "that the
police have a substantial, broad, and independent impact on the nation's
crime rate" (2000:51). They go on to say, "If the police continue to apply
generic coercive measures, we may continually oscillate between unfair
but marginally effective police practices, and marginally fair but ineffective policing" (p. 54). In arriving at these conclusions, Eck and Maguire
reviewed studies of variations in the numbers of police, community policing, zero-tolerance policing, COMPSTAT, gun interdiction patrols, retail
drug enforcement, and problem-oriented policing.
Not only does the available evidence cast serious doubt on the assumption that violating the rule-of-law by the police makes communities safer,
it would be very difficult for the police or anybody else to prove that it did.
In order to show that violating the rule-of-law was efficacious, it would be
necessary to estimate the marginal deterrent gain of such activity. Obviously there is no specific deterrent gain if innocent people are punished,
although there could be a gain if the person sanctioned was innocent in the
particular instance but guilty in others. In order to show that the specific
deterrent effect of convictions by questionable means was substantial, it
would be necessary to determine the proportion of people so convicted
that were truly guilty. Such research is impossible.
At the same time, unjustified arrests and dubious prosecutions might
have a general deterrent effect, that is, they might demonstrate to wouldbe criminals that crime is a risky business. Reviews of research on general
deterrence conclude that any such effect is small and tough to prove (Laub
and Sampson, 2002; Nagin, 1998). As Daniel Nagin says, "despite the
intensity of the research effort, the empirical evidence is still not sufficient
for providing a rigorous confirmation of the existence of a [general] deterrent effect. Perhaps more important, the evidence is woefully inadequate
for providing a good estimate of the magnitude of whatever effect may
exist" (p. 135). On the other hand, Tracey Meares and Dan Kahan have
argued that controversial policies such as curfews, gang-loitering regulations, police order-maintenance, and reverse stings may strengthen local
norms against criminal or disorderly behavior (1998). They caution, however, that such practices can undercut local norms of compliance with law,
as well as undermining respect for law generally.
In sum, the general deterrent effect of questionable police practices is
doubtful and certainly difficult to estimate.
Research has also shown that arrests in general magnify the social disorganization of families and communities, especially in communities where
the proportion of people affected by criminal sanctions is high (Rose and

COMMENTARY
Clear, 1998). It is reasonable to conclude that unjust arrests and convictions would augment this effect. Contrary to the expectations of the police,
therefore, law-enforcement based on questionable legal practices may be
criminogenic.
The restorative justice movement presents a larger challenge to the
belief that violations of the rule-of-law are useful tactics in law enforcement. John Braithwaite and others argue on the basis of a growing body of
evidence that informal processes of sanctioning featuring "community
conferences" among police, victims, suspects, and their respective supporters may be more effective at preventing repeat offending than referral to
the formal criminal justice system (Braithwaite, 1988, 1998; Strang, 2000).
If this is true, then the gains from questionable law-enforcement practices
must we weighed not only against acceptable ones, but also against the
benefits of criminal justice processing that does not rely primarily on
deterrence.
It is often argued that the more serious the criminal threat, the greater
may be the need for practices that violate the rule of law. This explains
why "states of emergency" suspending the normal protections of law are
accepted after natural disasters, during civil wars and guerilla insurgencies,
and in the face of rioting and widespread violent protests. The assumption
is that the greater or more immanent the potential threat, thegreater the
value to be derived from violating the rule-of-law. This may be true in
some circumstances. But even here the evidence is contradictory. Cooperation between the public and law-enforcement authorities, both police or
military, was considered critical in winning the guerilla insurgency in
Malaysia in the 1950s and 1960s, Germany's fight against the Red Brigades
in the 1970s, and in Japan's campaign against the radical Red Guards in
the early 1970s. Conversely, if government can win people's "hearts and
minds," deviant elements become isolated and vulnerable. Law enforcement authorities, even when faced with massive civil unrest and criminality, have learned that they must carefully calculate whether their tactics
turn the public into coproducers of order or co-conspirators of defiance
(Kissinger, 1965; Komer, 1972; Thompson, 1969; West, 1985).
VIOLATING THE RULE-OF-LAW REDUCES ENFORCEMENT
EFFECTIVENESS
Violating the rule-of-law impairs crime control by alienating the public.
This occurs in two ways. First, violating the rule-of-law lessens the willingness of the public to assist the police in carrying out their assigned role.
Research has shown again and again that the police are almost wholly
dependent on the public to provide the information needed to provide
safety and deter crime (Bayley, 1994; Goldstein, 1990). In countries like
the United States, most police work arises out of calls to them from the

BAYLEY
public (Parks et al., 1999; Reiss, 1971). Police are almost entirely dependent on the public to tell them when crime occurs.
Without information from the public, crimes cannot be solved and
criminals successfully prosecuted. Greenwood and Petersilia found that if
the public does not identify the likely suspect in some particular wayname, residence, relation to victim, license plate-the chances of a crime
being solved by the police falls to less than 10% (Greenwood et al., 1977,
also Royal Commission on Criminal Procedure, 1981). Contrary to myth
and media, detectives work from the identification of suspects to the collection of evidence rather than from the collection of evidence to the identification of suspects. This operational modality, practiced by detectives
the world over, may be in the process of dramatic transition. The advent of
DNA identification reduces the dependence of the police on public information and raises the importance of physical evidence. How much this
technology will change customary investigation procedures remains to be
seen. Because DNA identification is so conclusive, it also promises to
make it more difficult to convict innocent persons through overzealous
investigation.
As a result of research conducted during the 1970s and 1980s, a consensus emerged among scholars and police that successful crime prevention
depends more on actions the public takes than on anything the police can
do on their own (Goldstein, 1990; Rosenbaum, 1988; Sparrow et al., 1990;
Trojanowicz and Bucqueroux, 1990). Research showed repeatedly that the
standard responses of the police to crime were not effective-most notably, random foot and motorized patrolling (Kelling et al., 1974; Police
Foundation, 1981), rapid response to emergency calls for service (Bieck
and Kessler, 1977), and improvements in technology (Manning, 1992;
Morris and Heal, 1981). Research has also called into question the crimeprevention value of so elementary a policy as hiring additional police personnel (Bayley, 1994; Levitt, 1994; Loftin and McDowall, 1982; Marvell
and Moody, 1996).
These findings do not imply that there is nothing the police can do on
their own to prevent crime, but that the assistance of communities makes
police efforts vastly more effective (Sherman, 1986, 2001; Sherman et al.,
1998).
The research of the 1970s and 1980s that called into question customary
police strategies led to an intense search for alternative approaches. What
emerged was community- and problem-oriented policing, both of which
recognize that the public should be viewed as coproducers of public safety
and that the criminal law is an awkward tool for resolving crime and disorder problems (Goldstein, 1990; Skogan and Hartnet, 1997; Trojanowicz
and Bucqueroux, 1990). In other words, the choice between hard (deterrent) and soft (rule-of-law) policing is false. In order to become effective

COMMENTARY
at preventing crime, police need to be protective of human rights so that
they can enlist the willing cooperation of the public. Policing by consent,
to use the British slogan, is more effective at crime prevention and control
than is hard-nosed law enforcement by a socially isolated police.
Second, when the police violate the rule-of-law, they not only forfeit the
cooperation they need, but they also raise the likelihood that encounters
with the public will generate hostility and violence. When police act
beyond the law, they lose their moral authority. This creates a tragically
reinforcing cycle: Abuse by the police intensifies public suspicion and hostility toward the police; suspicion and hostility are expressed as sullenness
and disrespect; this prompts the police to exert their authority more
explicitly, perhaps more forcibly, which begins the cycle over again.
Actions that are perceived to be arbitrarily tough may encourage the very
sort of confrontational violence they are supposed to discourage. This pattern has been founded repeatedly in observations of the interactions
between the police and African-Americans in the United States (Bayley
and Mendelsohn, 1969; Brown, 1981; Kamisar, 1964; Maclin, 1991; Sykes
and Brent, 1983).
In sum, extensive research has shown that when the police alienate the
public, their ability to enlist the cooperation of the public declines and
hostility toward the police in face-to-face encounters increases. In neither
case is public safety well served.
VIOLATING THE RULE-OF-LAW WEAKENS THE AUTHORITY
OF LAW
Research has also shown that the way in which laws are enforced affects
perceptions of their legitimacy and the willingness of people to obey them
(Sherman, 2000). For example, Raymond Paternoster et al. found that the
risk of repeat offending for people arrested for domestic violence was less
when they had not been handcuffed in front of the victim and when the
police had taken time to listen to them as well as to the victim (1997).
Research by Tom Tyler shows that people are more likely to obey the law
if they believe that sanctions will be delivered in a procedurally fair way.
His theory is that compliance with the law depends on perceptions of legitimacy; perceptions of legitimacy in turn depend on perceived fairness of
criminal justice agents; and perceived fairness depends on the manner of
treatment, which is composed of assessments of the motives, quality of
treatment, neutrality, and reasonableness of the sanctioner (Tyler, 1997).
Tyler concludes (p. 178):
Police officers and judges who recognize and respond to people's
normative concerns can exercise their authority more effectively; the
rules and decisions will be accepted and obeyed voluntarily.

BAYLEY
Employing a quasi-experimental design, Makkai and Braithwaite found
that compliance with sanctions for violations of quality standards in nursing homes was sharply affected by the way in which the sanctions were
applied (1994). If they were applied with demonstrated tolerance and
understanding for the position of the violator rather than with personal
condemnation, they were more likely to be followed.
In short, a growing body of research suggests that compliance with the
law is affected by the way in which it is applied as well as by its severity.
Rules must be enforced, but they will be accepted more readily if applied
with consideration for the sensibilities of the people involved.
VIOLATING THE RULE-OF-LAW SCAPEGOATS THE POLICE
When police take the law into their own hands to control crime, they are
implicitly shifting responsibility for crime wholly onto their own shoulders.
If crime arises largely out of social deprivation and disorganization, as
criminologists have shown, then violations of the rule-of-law by police are
an attempt to compensate for deficiencies in social policies over which the
police have no control. Similarly, if they resort to extra-legal tactics to
make up for deficiencies of law and legal procedures, they are again trying
to remedy inadequacies they did not create.
By abridging the rule-of-law, police not only take responsibility for
crime onto themselves, they also deflect attention to themselves and away
from the negligence of others. If crime is out of control, the police should
not accept responsibility for it by exceeding their mandate. They should
insist, along with an aroused citizenry, that social policies be changed or
that laws be amended. Ironically, police know that there is little they can
do on their own to prevent crime against entrenched criminogenic social
conditions. They often say that their efforts are like a "bandaid on cancer." Violating the law to make up for policy deficiencies, ironically, plays
into the very criticism police deplore.
VIOLATING THE RULE-OF-LAW DEPRESSES MORALE AND
MAKES THE POLICE JOB LESS SATISFYING
Violating the rule-of-law changes the character of police organizations
in several unfortunate ways. First, it puts enormous pressure on all
employees to hide what is going on and, in so doing, puts them at risk. The
organization becomes hostage to its own deviants (Skolnick and Fyfe,
1993).
Second, violating the rule-of-law inevitably invites outside correction
when misdeeds are discovered. This creates a bunker mentality as police

COMMENTARY
organizations try to fend-off intervention. Feeling besieged, police agencies become less willing to be open and welcoming to the public and its
representatives (Bayley, 1983).
Third, in an effort to appear accountable, police work becomes more
rule-bound and discipline becomes more formalistic. Police officers are
given less responsibility, especially at lower ranks. Initiative becomes secondary to errorless performance (Bayley, 1996b).
Fourth, the relations between supervisors and subordinates become
strained and adversarial (lanni and Reuss-lanni, 1983). They are no longer
on the same side, but opponents in a depressing game of hide-and-seek.
Wariness replaces collegiality.
In general, illegality in the service of public safety makes policing a furtive, anxious activity. It undermines pride, which is the basis of job satisfaction. Furthermore, pride is essential to self-discipline, which is the most
effective means of achieving exemplary performance (Bayley, 1993).
VIOLATING THE RULE-OF-LAW WASTES COMMUNITY
RESOURCES
In countries where redress under law is possible, revelations of lawenforcement excesses jeopardize both past and future prosecutions. It has
been estimated that as many as 1,500 convictions in Los Angeles may be
revisited and vacated as a result of the illegal activities of a handful of
officers the Ramparts subdivision (Skolnick, 2001). Furthermore, in jurisdictions where people whose rights have been violated by the police may
sue the appropriate governments for damages, the monetary costs to the
community may be substantial. The costs of civil liability stemming from
police misbehavior in New York City since 1994, for example, has been
$176.9 million, not including the legal costs involved in opposing such
actions. The Los Angeles Times has estimated that the city's liability in the
Rampart subdivision's scandal could exceed $125 million (2000). In
smaller jurisdictions, such awards may bankrupt governments.
Violating the rule of law raises the costs of law enforcement, wasting
investments already made in criminal prosecutions and diverting money
that might be used for crime prevention.
VIOLATING THE RULE-OF-LAW PLACES POLICE OFFICERS
AT RISK
Most obvious of all, the personal cost to officers who are caught violating the rule of law can be catastrophic. For officers who do this for their
own personal gain-money, promotions, recognition-there should be no
sympathy. But for officers who have engaged in questionable practices
because they believe such practices enhance the effectiveness of law

BAYLEY
enforcement, the situation is morally more ambiguous. In a perverse
sense, they are behaving heroically, placing themselves at risk for the presumed sake of public safety. This essay is written expressly to arm such
officers against exactly this misconception, so that they will not risk so
much for so little.

CONCLUSION
In democratic societies, the objective of law enforcement is to maximize
both deterrent criminal effectiveness and conformity to the rule-of-law
based on recognized human rights. The common assumption is that these
goals are in conflict. I have given seven reasons why I believe this view is
mistaken. The goals of effectiveness and rectitude in policing are not, to
use technical language, orthogonal.
How solid is the evidence that supports this view? Some is very solid,
especially the research on the uncertain utility of standard police practices.
Also strong is the research on the doubtful benefits of specific deterrence.
Unfortunately, the evidence for several other arguments is either weak or
nonexistent. For example, Tom Tyler's work on the relationship between
compliance with the law and the behavior of criminal justice authorities is
projective, based on telephone interviews with individuals about minor
law violations. Similarly, the advantages of community-oriented crime prevention approaches have not been unambiguously demonstrated (Rosenbaum, 1994; Skogan and Harnett, 1997).
It can be argued, on this assessment, that the crime-control value of
strict adherence to the rule-of-law has not been conclusively demonstrated. However, the burden of proof, in my opinion, is on the other side.
There is even less evidence that illegal strategies are more efficacious. The
best available evidence shows that the immediate benefits of violating the
rule-of-law are at best small, more likely mythical, and that the long-term
costs are substantial. On balance, I conclude that it is in the interests of the
police, both individually and collectively, to adhere to the rule-of-law.
There may be circumstances where violating it are justified, but such situations are rare and the value of doing so in any particular case should not
be assumed. In short, a stronger, evidence-based case can be made that
defending human rights enhances police effectiveness than that doing so
hampers it. Illegality in policing is a risky and generally unproductive
strategy.
What research might be undertaken that would make a more compelling case for the benefits to police of adhering scrupulously to the rule-oflaw? The review of research presented in this essay suggests that the following questions have not attracted the attention they deserve.
(1) When police violate the rule-of-law, do they recognize they are

COMMENTARY

(2)

(3)

(4)

(5)

(6)

(7)

doing so? Is the premise of this essay correct that police officers
generally know what the law requires and violate it with a sense
of guilt?
How much do the police gain in terms of specific deterrence from
any of their crime-control strategies, but especially those that
threaten the rule of law, such as pedestrian stop-and-frisk, random motor-vehicle stops, and interdiction profiling?
How close is the connection between police scandals and public
alienation? In particular, does police misbehavior cause the public to withhold support in ways that affect police effectiveness, for
example, through failing to report crime, unwillingness to identify
likely suspects, not cooperating with crime prevention programs,
and withholding testimony in criminal trials.
To what extent are public attitudes toward the police affected by
the ability of the police to "clear crimes" and make arrests? Failing to catch criminals is known only to a few, except in celebrated
cases; publicity about misbehavior is known not only to those
immediately involved, but also runs the grave risk of becoming
known to the wider community. A few well-publicized scandals
may affect public perceptions of the police far more than a host of
successful investigations.
Does the manner in which the law is enforced exert a powerful
effect on the likelihood of re-offending? What factors affect this
relationship?
To what extent is morale and, by extension, job satisfaction,
affected by knowledge of violations of the rule-of-law within
police forces? Furthermore, does the occurrence of such violations affect the character of discipline within the force and nature
of the relations among ranks, especially between supervisors and
supervisees?
How much variation is there with respect to tolerance of righteous illegality within as well as between police forces? And what
are the factors that determine the differences?

If my assumption is correct that police often violate the rule-of-law

because they believe it improves their ability to control and prevent crime,
then gathering additional evidence that it does not is an important undertaking. But it is clearly not a sufficient response to the problem. The information must be used so that it changes behavior. How is this to be done?
One possibility would be to broaden the approach to the teaching of law
and ethics to police recruits. In addition to instructing them in the requirements of due process and the value of the rule-of-law in democratic societies, they would be presented with the utilitarian arguments made in this

BAYLEY
paper. In effect, the tradeoff problem would be met head on with police
officers at the very beginning of their careers.
At the same time, I am doubtful whether changing the cognitive understanding of police officers individually will be sufficient to offset the occupational culture within which they work. It is unrealistic to expect
individual police officers, no matter how well instructed in the arguments
made in this essay, to stand against the crime-control understandings and
expectations of their colleagues, the public, and their senior officers. The
more effective strategy, then, for changing the mindset of police officers is
to convince the leaders of police agencies that violating the rule-of-law is
not a sound law enforcement strategy, so that they will then be emboldened to change the moral tone, disciplinary mechanisms, management priorities, and career incentives within the organization. Research has shown
time and again that organizations are the most powerful determinants of
the behavior of people within them (Bayley, 1996b; Hall, 1991; Walker,
1993). Cognitive instruction of the kind suggested here should be focused
initially and repeatedly on senior police executives. If they can be convinced that violating the rule-of-law is not useful in achieving the goals of
police organizations, they will find the means to convince the rank-andfile.
The conclusion of this essay, then, supported by current social science
research, is that violating the rule-of-law in order to control crime is mistaken and that the best place to start in reorienting police practices is with
the managers of police agencies.

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David Bayley is a Distinguished Professor in the School of Criminal Justice, State

University of New York at Albany. A specialist in international criminal justice, with
particular interest in policing, he has done extensive work in India, Japan, Australia,
Canada, Britain, Singapore, and the United States. His work has focused on strategies
in policing, police reform, accountability, foreign assistance to police agencies, and the
tactics of patrol officers. Professor Bayley's most recent books are What Works in Policing (1998) and Police for the Future (1994), both published by Oxford University Press,
New York. Supported by grants from the National Institute of Justice and the MacArthur Foundation, he is currently engaged in a three-year research project studying the
lessons-to-be-learned about assisting foreign countries to develop effective democratic
police forces. Professor Bayley earned a B.A. degree at Denison University (1955), an
M.A. at Oxford University (1957), and a Ph.D. at Princeton University (1960).

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