Police-Made Law

This Article presents evidence that police are writing laws that they enforce. This newly discovered phenomenon compounds the existing understanding of police “making” law through the exercise of discretion. They make law in a far more direct way, functioning as quasi-legislators at the local level—identifying a social problem, drafting an offense to address it, and directly proposing their offense for enactment. The conduct targeted, and the reasons for doing so, are diverse. For example, in one city a police chief successfully criminalized public intoxication so that intoxicated people would go to jails instead of hospitals; in another, a chief pushed through an anti-vaping ordinance because of news articles he read about the dangers of e-nicotine.

Contextualizing police-made law within policing theory and local government structure makes it less surprising, but we should be critical of it in many cases. Democratic political theory sets requirements for when bureaucratic interest groups may legitimately influence legislative deliberation, and police often fail to meet these. Basic expectations of neutrality and expertise, derived from administrative law, are often lacking. Moreover, the power of police to use violence makes them more analogous to military officials than to administrative agencies. This should trigger a strong norm of civilian control and a presumption against advocacy in policymaking.