Abstract

This Article explores the connections between ideas about American democracy and ideas about the police. I argue that criminal procedure jurisprudence and scholarship on the police over the past half-century have roughly tracked, in a delayed fashion, developments in democratic theory over the same period. The most important of these developments were, first, the emergence during the 1950s of the pluralist theory of democracy, an unusually rich and resonant account that emphasized the roles of elites, interest groups, and competition in sustaining American democracy; and second, beginning in the 1960s, the gradual shift away from this theory and toward accounts of democracy emphasizing popular participation, community, and deliberation. Democratic pluralism helps make sense of several interrelated hallmarks of criminal procedure and police studies in the Warren and Burger Court eras: the focus on the group psychology of the police; the concern with police discretion and the reliance on judicial oversight; the emphasis on personal dignity; the attraction to second wave police professionalism; the embrace of modernity; the centrality of consensus; and the disregard of institutional structure. The subsequent shift away from pluralism finds reflection in several themes in contemporary criminal procedure: the enthusiasm for community participation; the premium placed on transparency; the distrust of elites and expertise; the preoccupation with legitimacy; and the retreat from modernity. Other features of criminal procedure jurisprudence and scholarship today - the continued treatment of the police as a breed apart, the persistent de-emphasis of institutional structure, and the relative inattention to issues of equality - reflect important points of continuity between pluralism and the theories that supplanted it. Our ideas about policing could benefit from a more rounded understanding of democracy - an understanding sensitive to those aspects of democracy that have to do less with collective self-rule than with traditions of resistance to illegitimate hierarchy, and mindful of the core insights of democratic pluralism, 1960s-style participatory democracy, and eighteenth-century political economy. I investigate, in a tentative fashion, how such an understanding of democracy might affect our thinking about five important issues in contemporary law enforcement: community policing, racial profiling, police privatization, police personnel practices, and public disclosure of law enforcement practices.