4 thoughts on “Public Law and Policy”

1. A New View of Crime Prevention as a Public Policy

   About a million years ago (circa 1985) while serving as the Law Enforcement Planning Coordinator for the Los Angeles County Sheriffs’ Department, I undertook the task of developing an empirical method for determining the number of crimes prevented from occurring as a result of directed patrol and strategic law enforcement operations. I labored over the assignment for a considerable period of time and eventually developed what was deemed to be an exceptionally well crafted methodology for incorporating time-series analysis and linear regression, along with post-operational empirical measures of crimes reported and loss prevention computations to derive a crimes prevented estimate. I even created a cost-benefit analysis procedure that measured police expenditures over and above normal enforcement, versus actual loss savings, on a week by week basis, so we knew when a program was no longer cost effective. Clearly well ahead of its time, was not well received by the Sheriff because of his fear that it could be used to hold him accountable, but this methodology was widely adopted by the patrol divisions of the department and I was even asked by the California Peace Officers’ Association to travel the state to conduct lectures on this innovative procedure.

   In hind sight however, now well after thirty years has come and gone and I have changed roles from police administrator to college professor and even a term of service as a judge, it occurs to me that crime prevention isn’t primarily a police function. Obviously based upon the types of enforcement programs being employed and the tempo of law enforcement operations, there is some residual effect of these types of directed patrol activities relative to crime prevention, but I am convinced that crime prevention, in the purist sense of the word, isn’t a function of law enforcement at all, and it is more appropriately a responsibility of political leaders, city councils, and county commissioners. The reason for this assertion is predicated upon the realization that criminality is a product of a very complex multivariate array of associated and desperate factors, almost none of which are within the control of police departments. Certainly active enforcement and the probability of getting caught serve as a deterrent to crime, and that function rests within the providence of law enforcement organizations, but almost none of the other factors that typically aggregate to result in criminality have a relationship to the mission of traditional policing.

   Departments have, through their own initiatives endeavored to address the crime prevention task thrust upon them by creating a host of public service programs, school visitation programs, athletic league programs, explorer programs, and alike, but well beyond the reach of America’s Finest are the truly correlated factors that aggregate to influence an individual’s criminal propensity. Almost any criminology text book will postulate that there are an enormous number of independent variables associated with criminality and human behavior. A sense of assuredness that there is hope of a better life just over the horizon is paramount to instilling the conviction for all individuals to choose a path of social conformance and resist temptation to engage in crime. It just isn’t worth it if you have hope of attaining something you truly desire someday and there is a path to achieving this goal. Ask yourself why you personally elected to refrain from engaging in criminal behavior, or why you choose now to avoid such temptations and the answer more often than not is because you have too much to lose if you get caught. There is also a morality aspect to it and a reverence for human decency, but largely you elect not to be a criminal because you have something you refuse to sacrifice.

   When faced with insurmountable challenges relative to overcoming poverty and low economic status existence within an uncomfortable population density, drug or alcohol addiction, overt discrimination against you, a victimization propensity, racial profiling vulnerability by authority, poor academic performance, peer group pressures to conform to a deviant life style, poor parental role models, and other such environmental and experiential factors, along with no promise of a better life through job training, internship opportunities, college advancement programs, trade school outreach initiatives, military service opportunities, or other important social improvement methods, the stage is set for personal failure. People who engage in crime as a form of rebellion typically rationalize it and point the finger at society for not giving a damn about them. What they mean is that they had no hope of a better life for being good and there was no reward for playing by the rules. All of these factors combine to create an absence of hope or optimism, a keen sense of inequity, an expectation of the lack of prosperity, and a point of view about absence of a fair chance for them to succeed. As you will note none of these factors are within the bailiwick of a police department, nor is there a line item budget that permits the department to create innovative programs that mitigate these challenges.

   Such matters are only within the reach of private industry and governmental organizations to address such factors through capital investment strategies and open door access to meaningful life advancement opportunity programs. There are innumerable good deed doers out there who try to make a difference. There are individuals, foundations, and corporate sponsors engaged, here and there, which have a conscience and who try to help where they can because of the philanthropic viewpoint of their leaders or their understanding of the importance of nurturing a workforce. But, as we can all attest, this social conscience and sense of focus demonstrated by these few isn’t ubiquitous. The same is true for city, county, state, and federal authorities. Some do good work, but the vast majority I would assert, have more work to do relative to the goal of innovating solutions and securing meaningful social change. There are also very few best-practice strategies available that serve as a model for those who lack decades of experience at social engineering and engendering positive social change.

   We can see what happens when hope is absent from the equation and despair takes over. Just look at what is going on in Chicago these days and you get the idea. I come from the law enforcement era of the 1970’s and 1980’s, when virtually every city saw significant increases in violent and property crimes. These frequencies were intolerable and only subsided as a result of the prosperity of 1990’s, when our economy boomed and people had hope for a better tomorrow. Our prison populations continue to grow, our probation and parole caseloads are at staggering rates, and yet we do not see political leaders or corporations routinely step forward with an answer that incorporates a solution to each of the factors just mentioned. Nor do they address the plethora of other challenges that I do not have time to articulate in this article. Our courts have had their hands tied by determinant sentencing requirements, despite occasionally innovative evolutions such as drug courts and family courts, and it seems apparent that there is a sense of frustration that things have gotten out of control and an awareness that people simply do not respect one another anymore. It also appears that they do not value the societal mores and norms of the past. Respect is a thing of the past. Our laws fail to address the solution to crime as evidenced by the absence of options within the penalty clauses of such statutes that provide alternative sentencing options and instead simply prescribe a period of confinement. This translates to mean that our legislatures are populated by people who not only fail to understand the causes of crime, but also who have little regard for dealing with the issue of recidivism.

   Offloading this task of crime prevention to police authorities by politicians simply isn’t fair. Perhaps it’s time to revisit our local, state, and federal criminal justice strategies so that they include a real crime prevention plan that is sponsored by public-private partnerships, innovative city and county advancement programs, realistic zoning and city development plans that afford a quality of life measure, meaningful diversion programs that are required and imposed by the courts and which create an opportunity for individuals to change course, and even federal programs that aren’t merely wasteful and bleeding capital resources away from sovereign states and local governments. Enabling local prerogatives and engendering a sense of ability to deal with local challenges through open ended legislation and sentencing strategies might well prove more effective than simply prescribing a period of confinement. Certainly we can start with a national dialog about this critical issue and development of a plan that seeks to build upon the successes of the past. But, expecting police departments to deal with this complex issue simply isn’t fair.

   There is a narrated lecture about the strategic enforcement program referenced in this article at the link below.

   Crime Forecasting and Enforcement Effectiveness Seminar

   If you have an interest in participating in the national discourse relative to this issue please email us at with your comments.

   References:
   WHAT CAUSES VIOLENT CRIME? , The World Bank, Fajnzylber et al., 2000
   INTRODUCTION TO CRIME PREVENTION, David Mackey,
   SITUATIONAL CRIME PREVENTION, Successful Case Studies, Clarke, 1997
   EFFECT OF CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN, Lee et. al., 2016

2. The Composition of the Supreme Court and Public Law

   With the recent Senate debate over the nomination of Judge Neil Gorsuch to serve as Associate Justice of the Supreme Court, we again find ourselves in the middle of the never ending debate of how the Court should function as an independent entity of the U.S. government and the various philosophies and dynamics that influence the rulings of the Court. Justice Scalia spoke eloquently about the importance of the Court maintaining a viewpoint of originalism or contextualism within the deliberations of the justices regarding matters brought before the Court. He argued incessantly about the merits of holding firm to the conviction that the Constitution says what it says and doesn’t say what it doesn’t say. What he meant by this is that within our form of government it is essential that all three branches of the government function as they were envisaged by the founding fathers and they should approach their charge in the manner afforded under the Constitution. Essentially, this point of view pertained mostly to the legislative branch and as he suggested many times, congress has an obligation to deliberate over the merits of public policy and enact laws that keep pace with the ever changing values of our society, as opposed to seeking the intervention of the Supreme Court over issues that were either politically unpopular or highly politically charged. Both political parties have been guilty of praying before the Court that there side of the argument must be embraced because the Constitution “could” be interpreted in support of their argument. Even the executive branch has been culpable in seeking this form of remedy from the Court. The point is that the Supreme Court is not a political entity of the government and cannot function properly in such a role.

   From a very practical perspective, Presidents have a tendency, in recent years, to use their advantage in the Senate, not to assure that a balance is maintained on the Supreme Court, but rather to pack the Court with as many justices as possible that see things as they do, and who may rule, more often than not, in the favor of their political party. I suspect that this is a natural byproduct of the political process, but I am also persuaded to the viewpoint that after the confirmation process is over, most Supreme Court Justices resent the very nature of the ordeal and vow to use their lifetime appointment to rule as they see the facts, and not how a political party may hope they might decide the issue.

   Getting back to the notion of contextualism, it seems that Justice Scalia may well have been correct in his assertion that the U.S. Constitution says what is says and doesn’t say what it doesn’t say. This means that legislators would be well served to bolster their courage and enact public laws that are in harmony with the protections of the Constitution, but which also reflect hat he evolution of our society, as opposed to hoping that the U.S. Supreme Court will rely on inference to render a judgment about what the Constitution might have meant about the matter under deliberation. I guess we’ll see how it turns out but it strikes me that those nominated and appointed to the bench have the strength and character to resist the efforts of others to render the United States Supreme Court as just another branch of government that is partisan in nature.

3. The Ballot Initiative Process and Public Law

   As I have mentioned previously Public Law is a unique aspect of the legal system that derives its authority from the United States Constitution. It also owes its lineage to every state Constitution that empowers the legislature to enact laws governing the citizens of their jurisdiction. One of the more dynamic aspects of this conceptual framework of public governance is through the ballot initiative process whereby the voters of the state bypass the legislature altogether in order to enact legislation. According to the Attorney General, the ballot initiative process gives California citizens a way to propose laws and constitutional amendments without the support of the Governor or the Legislature. Perhaps the most famous of these initiatives was Proposition 13, which was placed on the statewide ballot in 1978, which amended the Constitution of California to limit the amount of taxation that could be imposed by state and county governments of real estate property. Twenty-six states currently provide for a ballot initiative process and this mechanism has been used by state residents to end animal cruelty, to enforce clean elections requirements, to promote environmentally friendly practices, and a plethora of issues that routinely failed to garner the attention of politicians or the actions of a legislature.

   There are innumerable justifications for the ballot initiative process as a means of enacting public laws but from a philosophical and political viewpoint such a mechanism strikes at the very heart of the republican form of government. Ballot initiatives are, by their very nature, democratic mechanisms that seek to replace a republic form of government that use elected officials to carry forward the will of the people with a notion that embraces the power of the people, squarely in the hands of the people, when representative government fails to meet the demands of its citizens. There doesn’t seem to be a mechanism for such uprisings in the federal system of government, but if there were, perhaps a balanced budget amendment might be the very first such ballot initiative sought by the electorate.

4. Presidential Executive Orders and Public Law

   One of the least well defined but more fascinating aspects of public law that is receiving a good deal of attention these days involves the issuance of Presidential Executive Orders as a mechanism for the distribution of proclamations, thereby usurping Congressional authority as the authors and originators of public law. Executive orders have become a fashionable tool for invoking the political will of the executive branch of the government, without congressional debate, and are used for a variety of purposes. Most recently, this mechanism appears to be the desired approach by the current occupant of the White House in order to foster immediate public gratification about his decisive presidential leadership ability and his adherence to campaign promises. This political tactic has garnered an equally intense level of scrutiny by the media, the Congress, the states, and even the voting public about the legitimacy of its use. In fact, we just witnessed a series of legal challenges brought by several states that were of the opinion that use of such a tactic to create public law in order to ban citizens of (some) nations from entering the United States was unconstitutional. This viewpoint was upheld initially by the United States District Court and then again by the Ninth Circuit Court of Appeals, in two separate legal challenges. In both cases, a Temporary Restraining Order was issued blocking the actions prescribed within the executive order. The use of an executive order to impose such a far reaching public law may well end up being reviewed by the U.S. Supreme Court, but probably not on the basis that it is an incorrect mechanism to support the advancement of a particular political agenda, but more likely predicated on judgment about the appropriateness of the specific language contained within the executive order itself, and the subsequent order, and their conformance to constitutional provisions.

   It is not my intention to use this particular situation for any other purpose than to argue the point that public law and policy is an inherently complex aspect of our society and accordingly, does not lend itself well to the imposition of public law and policy based on an extrapolation of public will by a single individual, without the benefit of broad public discourse. That critical component of public law deliberation and enactment is almost certainly best suited to the legislative process. History and tradition have taught us that the democratic process and broad representative government is well suited to the task of developing and enacting public law and policy, and accordingly, should reside within the exclusive domain of the legislature.