Terrorism, Federalism, and Police Misconduct

Abstract

Criminal law enforcement in the United States is overwhelmingly local - the large majority of police and prosecutors work for local governments, the large majority of arrests are made by local police, the overwhelming majority of criminal prosecutions are brought by local district attorneys' offices, and the great bulk of prisoners are in their cells as a result of those local prosecutions. The states do very little policing and almost no prosecution. And while the federal government does more in this sphere, it is still very much a backstop. This essay explores two questions: How does that allocation of law enforcement power affect the level of police misconduct in the United States? And how will the war on terrorism change both the allocation and the amount of police misbehavior? In brief, my answers to those questions are: In a system like ours, federal police - chiefly the FBI - may present more serious misconduct problems than do local police, because the FBI is neither politically accountable nor tightly constrained by limited resources. (Local police are both accountable and resource-constrained.) The war on terrorism may change that conclusion, by increasing not only the FBI's power, but also its level of accountability and constraint.