Eric J. Miller*
The development of the institutional approach to policing, and procedure more generally, is one of the most exciting features of criminal procedure over the past decade. More accurately, there are a series of institutional approaches—doctrinal, philosophical, sociological, empirical—that all claim that there is independent value in regulating the police, separate from the additional value of protecting suspects’ rights.
In broad terms, the new institutional criminal procedure scholarship addresses the police as a state institution, as an executive-branch organization, and as an administrative agency. Institutional criminal procedure reveals that police decision-making at the administrative level is as fateful for communities and individuals as the decisions individual officers make during encounters and interrogations (the last being the traditional site of constitutional criminal procedure attention). Expanding criminal procedure to include departmental-level decision-making and other institutional considerations reveals that, even during encounters not covered by the Fourth Amendment, a variety of interests outside of constitutional norms may impact individuals and communities. These interests include police motivations to follow, observe, and non-coercively question civilians, which lie outside Fourth Amendment’s demand for articulable suspicion. And in broadening the range of activities and interests at stake, the new institutional criminal procedure broadens the range of remedies under consideration beyond the traditional focus on exclusion.
All this is quite different from the constitutionalized approach to criminal justice. The traditional approach primarily focuses on constitutional rights as protecting the public from government interference. The rights-based approach takes the individual defendant as its primary object of interest. It is the defendant’s zone of privacy that matters, and law-enforcement practices are of interest only if they pierce that zone. Police actions that do not directly implicate the rights of criminal defendants are of ancillary concern. Accordingly, under a rights-based approach, the core cases in which defendant’s rights are implicated involve individualized, direct interactions between the state and the criminal defendant.
The traditional approach’s individualized focus on particular defendants carries over to the question of remedies. The traditional approach treats remedying rights breaches as primarily an issue of corrective justice. The Fourth Amendment’s central remedy, suppression of evidence obtained in violation of the defendant’s rights, exemplifies the corrective-justice approach. The exclusionary rule operates to restore the government to the position it would have occupied absent the illegal search or seizure, by subtracting from the state the unfair evidentiary edge it gained by trespassing on those rights.
Institutional criminal procedure challenges us to detach the way we think about policing from the context of the Fourth and Fifth Amendments, and instead approach policing in the context of more general questions about the justification of criminal law and punishment. One important aspect of the institutional approach is to revive the long-dormant political question of how to justify the police within the apparatus of state punishment. That question last made a major appearance in the American legal academy in the 1960s, when Herbert Packer raised it as part of his book on the Limits of the Criminal Law, but it was soon drowned out by doctrinal and sociological approaches to policing.
The institutional approach raises a series of political questions that have lain dormant for about half-a-century, since the last major period of racial unrest in the 1960s. Some of those dormant questions are: 1) What are the police? 2) What is their role? 3) To whom are they accountable? 4) Whom do they represent? In the late 1960s and early 1970s a variety of sociologists and administrative law theorists including Jerome Skolnick, James Q. Wilson, Egon Bittner, William Ker Muir and Kenneth Culp Davis provided what has seemed like a definitive answer: the police are those people entrusted with the situational power to deploy force in the community. But the compelling smartphone scrutiny of police violence has given us good reason to be unhappy with this answer. The situational power to deploy force does not appear to represent the rule of law or the rights of civilians on the street. So the sociologist’s answer, descriptively telling us what the police actually do, does not tell us whether, normatively, the police ought to be doing it, and, politically, on behalf of whom they do it.
The political and normative set of questions raised by institutional criminal procedure that I am particularly interested in are those of representation and agency: on whose behalf do the police act? Police legitimacy often depends upon the answers to these questions: they gain their authority to intervene, including to deploy force, because of their role as state or municipal agents. In acting as the police, they act in their role as public officials authorized by the laws of the relevant jurisdiction that confer the legal power to act as they do. As Michelle Dempsey makes clear, the point is a conceptual one: without a state or a municipality to represent as publicly authorized officials, they would not be police. When, for example, some organized crime group (such as the Mafia) takes over the role of ensuring public order in the communities they control, they do not become “the police” just because they provide similar services as a municipal police force. One reason is because the agents of organized crime represent their crime boss or criminal institution, rather than the state.
Organized crime henchmen often claim, like the police, to act on behalf of the community, even if they do not act on behalf of the municipality or state. And the police too, claim to act on behalf of the community, in addition to acting on behalf of the municipality or state in which they have jurisdiction. Acting directly on behalf of the community, rather than indirectly as representatives of the state, is one of the ways in which the police demand the community’s allegiance. Indeed, the whole community policing movement gains its resonance from that claim. But what does it mean to “act on behalf of” a community? Simply holding the title of state official does not ensure an individual is acting on ‘behalf of the community. The state, and thus state officials, may fail to serve (that is, to act on behalf of) the communities they are supposed to govern. Are the police an institution that, by its very nature, represents the community in addition to the state?
In our current political climate, the question of whom the state represents is a live one: large chunks of people on the right of the political spectrum have claimed that President Obama did not represent them, and large chunks of people on the left of the political spectrum claim that President Trump does not represent them, either. These communities are making an important political point: to represent some group is to claim to be authorized by that group to speak and act on its behalf.
Indeed, nothing is more American than to question the state’s good faith in representing the community. The United States is founded, after all, on the demand for “no taxation without representation,” one of the charges that made it into the Declaration of Independence. Having decided that the British government did not represent their community, the American colonists decided to reject the British state tout court, and to form their own state to represent their own community.
The police have a pretty compelling claim to speak and act on behalf of the state: they are members of the executive branch of government, and the various constitutive rules of government identify them as state agents. But speaking on behalf of the community is a further question of political, rather than institutional, legitimacy. And it is that question that is currently being pressed with some urgency by minority communities around the country, and in a more organized fashion by the Black Lives Matter movement. Answering the question requires a political answer that goes beyond the constitutive rules of the state and its subordinate institutions.
One political answer is that acting on behalf of a community—representing a community by speaking on its behalf and acting in its name—requires regarding oneself as answerable to the community. It requires regarding community members as having standing to call you to account, as a community representative, for what you are saying and doing. And this idea of accountability has important consequences for the political standing of members of the public on the street, in their interactions with the police.
The police provide two responses to the question of how they are answerable to the community: the first is that they express the values and interests of a particular group, for example by soliciting public opinion and input as to how to deploy their resources. The second answer is that the police respond to a public desire for order at any costs.
The first answer is one that has been promoted through the community policing movement: the police are not mere agents of the state, but responsive to the needs of the community. One version of community policing is as a partnership between the community and its civic organizations, on the one hand, and the police, on the other, in setting strategic goals or priorities for the distribution of police resources in the community. At the core of community policing is “a firm commitment to the value and necessity of citizen input to police policies and priorities.” Community policing is supposed to reflect the democratic accountability of the police to the community by providing community members “a say in how they are governed. Police departments, like other agencies of government, are supposed to be responsive and accountable” to that civilian input.
Generating civilian input is, however, a difficult business. It might be difficult enough if the sort of power-disparities between the police and public that structure interpersonal interactions between police and civilians bleed over into the public-input part of community policing. Even if not, different community groups are more or less likely to voice their concerns, depending upon how empowered they perceive themselves to be. Race, gender, immigrant status, and class play predictable roles in this process, making it hard for marginalized groups to make themselves heard during the deliberative, policy-making process. Without care, the failure to ensure marginalized-group participation may simply reinforce and obscure existing structures of domination, precisely because “[e]ffective community policing requires responsiveness to citizen input concerning both the needs of the community and the best ways by which the police can help meet those needs. It takes seriously the public’s definition of its own problems.” When the police cannot hear the community’s voice, it becomes hard to hold themselves accountable for it.
My colleague, Priscilla Ocen, has recently advanced yet a further reason to be suspicious of the community policing answer. An important, but often overlooked, aspect of the history of policing is the official practice of denying that black people, and especially black families, share values deserving of police protection. As a result, the tenor of policing has been to remain suspicious of supposedly pathological black values, which in turn are treated as deviant or criminal. And as the Black Lives Matter movement reminds us, this normative suspicion has practical consequences, as the police live outside the community and treat the communities they police as outsiders or enemies to be quelled rather than answered to.
But the sociologists revealed another answer, one that often exists alongside of, or instead of, the community policing answer: the police are answerable to some secret or inarticulable public desire for order at any costs. Call this the “dirty hands model” of policing, exemplified by the fictional San Francisco detective Harry Callahan in the movie Dirty Harry. For Callahan, the community-responsive requirements of public order justified ignoring the law, the Warren Court’s recent constitutionalization of policing, and his superior’s constraining administrative directives. The police, Callahan believed, answer—perhaps like all public officials—to a separate morality. In the role of a cooler, more romantic Machiavelli—who introduced or at least popularized the “dirty hands” idea—serving the community often means, for Dirty Harry, acting against the community’s express moral norms. Acting on behalf of the community means acting on a separate code, one that renders him unaccountable to the state and to the public.
This claim to criminological expertise and political necessity has wide political currency in our culture and in policing. But a feature of dirty hands policing on the street is to exclude people from the community, and treat them as having less standing than the cops to determine what is right and wrong. The cops become Platonic guardians of the community, but guardians whose role conflicts with the normative and political claims of the state to serve the people on behalf of whom it acts. It is a vision of policing that undermines the ability of the public on the street to question and challenge police authority, and so undermines the political equality of the public and the public officials who act on our behalf.
This view of the police as an unelected blue-collar aristocracy whose deeds escape the normal categories of morality and political accountability was a particular concern of the Warren Court. The foundational contemporary criminal procedure case, Mapp v. Ohio, asserted that “the right to be secure against rude invasions of privacy by state officers…can no longer…be revocable at the whim of any police officer who, in the name of law enforcement itself, chooses to suspend its enjoyment.” The point of constitutionalizing criminal procedure was, according to Justice Clark, precisely to render the police answerable to the community as a coequal member of that community, rather than some Platonic Guardian of the laws.
The Mapp court called this Dirty Harry style of policing “lawless.” And lawless policing presents an additional type of danger for the police: a moral danger. Too often, we emphasize physical danger and overlook the moral dangers that police face. But we should remind ourselves that moral danger played a part in the early sociological discussions of the police, in two ways. For Jerome Skolnick, policing produced an inherent moral conflict between the demands of rule of law and those of public order, because enforcing public order was taken by the police to mean the ability to ignore the law. And William Muir pointed to one result of that conflict: the erosion of the police officer’s moral standards, so that the officer becomes cynical as to the motivations or moral standing of other individuals. We should become more attuned to the ways in which the demands we place on the police place them in moral danger. And one way to do so is to hold them, and ourselves, accountable to ordinary moral standards when thinking about policing. But that requires us to see ourselves as part of the community that is policed, instead of separate from and antagonistic to it. That requires us to recognize, in short, that Black Lives Matter.
Dollree Mapp, who is perhaps a prototypical Black Lives Matter activist, is our prototypical public citizen in this respect. She has been called the “Rosa Parks of the Fourth Amendment.” In May 1957, Mapp was a young woman “with a swagger about her that was just as calm as can be…a daring and audacious person.” When plainclothes officers from the Cleveland Police Department rang her doorbell, she called her lawyer, who told her to demand a warrant, and when the police could not produce one, she refused to let them in. The police eventually entered anyway, claiming the paper they brandished in front of her—but would not let her read—was a valid search warrant. She took it from the officers anyway, famously sticking it down her blouse, but the officers grabbed it back. They still would not allow her to read the “warrant,” so she remained “hostile to [the police], defying us…resisting.”
In resisting the police, Dollree Mapp asserted her full citizenship and equal standing as a member of the polity. She challenged the police, and forced them to account for themselves as acting on behalf of the state: to point to the law to justify intervening in her business. And she revealed that, if the police cannot provide such justifications—if they cannot point to the law as authorizing their actions—they are officers in name only. Normatively and politically, they are, like some organized crime gang, lawless, answering to some different, extra-legal set of standards.
The harder question is whether, even when engaged in lawless action, the police nonetheless act as agents of the community and of the state. And that, in part, depends on the response of community members and the state to police wrongdoing. The choice is a stark one: for the state, and for us, to endorse Dollree Mapp’s assertion of equal citizenship; or for us, and for the state, to reject her and create a fragmented community organized around two classes of citizenship subject to differential treatment through the police. Recognizing that we cannot but be on the hook for our answer to that question is perhaps the most profound lesson of Mapp v. Ohio, and one that the Black Lives Matter movement has recently had cause to remind us remains a present issue for us still.
* Professor and Leo J. O’Brien Fellow, Loyola Law School, Los Angeles.
 For an early version of this approach, see, e.g., Herbert Packer, The Limits of the Criminal Sanction (1968). For more recent discussions of political theory and policing, see, e.g., David Alan Sklansky, Democracy and the Police (2008). Malcolm Thorburn and John Gardner have recently engaged in an important debate about the nature of policing as a political institution; the Thorburn-Gardner debate spans four articles: Malcolm Thorburn, Justifications, Powers and Authority, 117 Yale L.J. 1070–1130 (2008); John Gardner, Justification under Authority, 23 Can. J. L. & Jurisprudence 71–98 (2010); Malcolm Thorburn, Criminal Law as Public Law, in Philosophical Foundations of the Criminal Law 21–43 (R. A. Duff & Stuart Green eds., 2011); John Gardner, Criminals in Uniform, in The Constitution of the Criminal Law 97-118 (R.A. Duff et al. eds., 2013). See also John Gardner & François Tanguay-Renaud, Desert and Avoidability in Self-Defense, 112 Ethics 111–134 (2011). See also Eric J. Miller, Police Encounters with Race and Gender, 5 U.C. Irvine L. Rev. 735 (2015); Eric J. Miller, The Warren Court’s Regulatory Revolution in Criminal Procedure, 43 Conn. L. Rev. 1 (2010). While the foregoing approaches treat the police as a political entity, there are a variety of sociological and psychological approaches to policing. Some of the foremost of these scholars include Jeffrey Fagan, Tom Tyler, Tracy Meares, Dan Kahan, and Song Richardson. For a random but representative sample, see, e.g., Jeffrey Fagan and Garth Davies, Street Stops and Broken Windows: Terry, Race, and Disorder In New York, 28 Fordham Urb. L.J. 457 (2000); Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals Am. Acad. Pol. & Soc. Sci. 84, 87 (2004); Dan M. Kahan, Reciprocity, Collective Action, and Community Policing, 90 Calif. L. Rev. 1513 (2002); Tracey L. Meares, Praying for Community Policing, 90 Calif. L. Rev. 1593 (2002); L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 101 (2011).
 See, e.g., Rachel A. Harmon, When is Police Violence Justified, 102 Nw. U.L. Rev. 1119 (2008); Rachel A. Harmon, Federal Programs and the Real Costs of Policing, 90 N.Y.U.L. Rev. 870 (2015). See also Eric J. Miller, A Fair Cop and a Fair Trial, in Obstacles to Fairness in Criminal Proceedings: Individual Rights and Institutional Forms (John Jackson & Sarah Summers eds., ___) (forthcoming 2016).
 What we might call “first generation” institutional criminal procedure scholars conceptualized the central issue for regulating the police as one of establishing rules of conduct for the police that were then susceptible to judicial review and regulation. For these first-generation proceduralists, the goal is to provide a model of regulation that integrated court as chief of the institutional bureaucracy. See, e.g., Wayne R. LaFave, “Case-By-Case Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 Sup. Ct. Rev. 127, 142-43 (1974); Wayne R. LaFave, The Fourth Amendment in an Imperfect World: On Drawing “Bright Lines” and “Good Faith”, 43 U. Pitt. L. Rev. 307, 325-33 (1982); Wayne R. LaFave, Constitutional Rules for Police: A Matter of Style, 41 Syracuse L. Rev. 849, 855(1990). For a similar attempt to enable the courts to engage in judicial review of police policy, see Anthony G. Amsterdam, Perspectives On the Fourth Amendment, 58 Minn. L. Rev. 349, 416-17 (1973-74). More recent scholarship addressing the institutional aspect of policing includes Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011); Andrew E. Taslitz, Fourth Amendment Federalism and the Silencing of the American Poor, 85 Chi.-Kent L. Rev. 277, 290 (2010); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489 (2008); Christopher Slobogin, Policing as Administration, 165 U. PA. L. REV. 91-152 (2016).
 Whether grounded in liberty, privacy, or property. See, e.g., Katz v. United States, 88 S. Ct. 507 (1967) (privacy);
United States v. Jones, 132 S. Ct. 945 (2012) (property); Florida v. Jardines, 133 S. Ct. 1409 (2013) (property).
 On the “arithmetical” character of corrective justice, see John Gardner, Law as a Leap of Faith: Essays on Law in General 243 (2012) (“distributive concerns … are … about securing or maintaining geometric proportionality between people. … Corrective concerns, by contrast, are concerns about arithmetic proportionality”).
 See the Thorburn-Gardner debate, supra note 1; see also Ekow N. Yankah, Legal Vices and Civic Virtue: Vice Crimes, Republicanism and the Corruption of Lawfulness, 7 Crim. L. & Phil. 61 (2012). For a slightly different understanding of the problem in the context of policing and defendant’s rights, see Alice Ristroph, Regulation or Resistance? A Counter-Narrative of Constitutional Criminal Procedure, 95 B.U.L. Rev. 1555 (2015).
 Herbert Packer, The Limits of the Criminal Sanction (1968).
 For some examples of the sociological approaches, see infra notes 7-11.
 The institutional approach thus jibes with the focus on policing that has followed a wave of smartphone and dashboard camera recordings of violent police interactions with minority members of the public, and with the attention on policing demanded by the Black Lives Matters movement.
 Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society (2d ed. 1994).
 James Q. Wilson, Varieties of Police Behavior: The Management of Law and Order in Eight Communities (1968).
 Egon Bittner, The Functions of the Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models (1970).
 William Ker Muir, Jr., Police: Streetcorner Politicians (1977).
 Kenneth Culp Davis, Discretionary Justice : A Preliminary Inquiry (1969); Kenneth Culp Davis, Police Discretion (1975).
 See, e.g., Egon Bittner, The Functions of the Police in Modern Society: A Review of Background Factors, Current Practices, and Possible Role Models 39 (1970) (“the police are nothing else than a mechanism for the distribution of situationally justified force in society.”).
 Michelle Madden Dempsey, Prosecuting Domestic Violence: A Philosophical Analysis (2009). Dempsey applies her analysis to prosecutors. Nonetheless, her points about prosecutors apply to the police as well. Other individuals or groups can provide security or investigate crime, but to count as police is to have a special relationship to the state and its criminal law.
 Private security firms are often called “private police,” but they are not, conceptually, police if they answer only to their community and not to the state. That, indeed, is one way to tell the difference between the two. For more on private policing, see, e.g., Elizabeth E. Joh, The Forgotten Threat: Private Policing and the State, 13 Ind. J. Global Leg. Stud. 357 (2006).
 If the police act on behalf of the community, without acting on behalf of the state, they become that community’s partisans. It is this sort of partisan policing worry that is at the heart of discriminatory enforcement claims. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373 (1886).
 In other words, the police often treat the claim to represent the community as imposing reciprocal obligations on the community to cooperate or comply with the police.
 See Daniel A. Smith, Tax Crusaders and the Politics of Direct Democracy 23 (1998).
 Thomas Jefferson, Declaration of Independence, ___ (1776).
 See, e.g., R. A. Duff, Punishment, Communication, and Community (2000); John Gardner, Criminals in Uniform, in The Constitution of the Criminal Law 97 (R. A. Duff et al. eds., 2013).
 See Stanley Cavell, The Claim of Reason: Wittgenstein, Skepticism, Morality, and Tragedy (1999); Dempsey, supra note 17.
 Perhaps the most sustained advocate of this view was Professor Andrew Taslitz, who believed that the theory of deliberative democracy provided a route through which the community could participate in policing. See Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio State J. Crim. L. 133–193 (2011); Andrew E. Taslitz, Eyewitness Identification, Democratic Deliberation, and the Politics of Science, 4 Cardozo Pub. L. Pol’y & Ethics J. 271 (2006). In addition,, Kami Chavis Simmons, see Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies, 98 J. Crim. L. & Criminology 489 (2008), and Christopher Slobogin, see Christopher Slobogin, Policing as Administration, 165 U. Penn. L. Rev. 91 (2016) have made similar arguments; and I have advocated something like this position myself. See Eric J. Miller, Challenging Police Discretion, 58 How. L. J. 521 (2015).
 See, e.g., Wesley G. Skogan, The Promise of Community Policing, in Police Innovation: Contrasting Perspectives 27, 28 (David Weisburd & Anthony A. Braga, eds., 2006).
 Gary Cordner, Community Policing in The Oxford Handbook of Police and Policing 148, 154 (2014).
 See, generally, Archon Fung, Empowered Participation: Reinventing Urban Democracy (2004).
 I have discussed these sorts of power disparities in a number of recent articles: see Eric J. Miller, Encountering Resistance: Non-Compliance, Non-Cooperation and Procedural Justice, U. of Chi. Legal Forum 295 (2016); see also Eric J. Miller, Police Encounters with Race and Gender, 5 U.C. Irvine L. Rev. 735 (2015); Miller, Supra note 25.
 See, e.g., Andrew E. Taslitz, The Criminal Republic: Democratic Breakdown as a Cause of Mass Incarceration, 9 Ohio St. J. Crim. L. 133 (2011); Andrew E Taslitz, Fourth Amendment Federalism and the Silencing of the American Poor, 85 Chi.-Kent L. Rev. 277 (2010).
 Skogan, supra note 26.
 See Priscilla A. Ocen, Ties that Bind: The Black Family as a Source of Crime in a Free Society, (unpublished manuscript) (on file with author). You can access the audio recording of her presentation of this paper at the Association of American Law Schools conference January 5, 2017, https://soundcloud.com/aals-2/criminal-justice-the-challenge-of-crime-in-a-free-society-fifty-years-later/s-cgh8t (begins at approx. 46:00).
 Bruce Terris, the Assistant Director of the 1967 President’s Commission on Law Enforcement and Administration of Justice remarked, in a memo to James Vorenberg, its Executive Director, that “the Commission’s job is, in part, to confront the problem of crime committed by the poor, particularly the Negro poor, in our large cities.” Id.
 The recent emphasis on implicit bias has revealed that we all are subject to such thinking. But the Fourth Amendment may entrench and exacerbate such tendencies for the police See L. Song Richardson, Arrest Efficiency and the Fourth Amendment, 95 Minn. L. Rev. 2035 (2011).
 See, e.g., Jerome H. Skolnick, Justice Without Trial: Law Enforcement in Democratic Society 6 (4th. ed., Quid Pro Books 2011) (1966) (arguing that the police face a conflict between the goals of upholding the rule of law and ensuring public order).
 See, e.g., John Kleinig, The Ethics of Policing 52-64 (1996) (discussing the concept of Dirty Hands in the context of policing). See also Thomas Nagel, War and Massacre, 1 Phil. & Pub. Aff. 123 (1972); Michael Waltzer, Political Action: The Problem of Dirty Hands, 2 Phil. & Pub. Aff. 160 (1973).
 See, e.g., Carl B. Klockars, The Dirty Harry Problem, 452 Annals Am. Acad. Pol. Soc. Sci. 33 (1980).
 367 U.S. 643 (1961).
 Id. at 660.
 Id. at 655.
 Skolnick, supra note 36.
 Muir, supra note 14.
 See Ken Armstrong, Dollree Mapp, 1923-2014: “The Rosa Parks of the Fourth Amendment” The Marshall Project (Dec. 8, 2014, 3:55 PM) https://www.themarshallproject.org/2014/12/08/dollree-mapp-1923-2014-the-rosa-parks-of-the-fourth-amendment#.plHke84qU.
 Carolyn Long, Mapp v. Ohio: Guarding Against Unreasonable Searches and Seizures 6-7 (2006).
 Id. at 8.