Yale Professor Dan Kahan delivered a terrific public lecture here yesterday on his theory of cultural cognition. I am excited to see his program today with Milwaukee County District Attorney John Chisholm, moderated by Mike Gousha. For more than a decade, Kahan has been one of the legal academy’s most original and thought-provoking writers on inner-city law enforcement. It should be very interesting to hear him discuss the particular challenges facing Milwaukee with D.A. Chisholm, who has already initiated several intriguing new programs during his short time in office.
In preparation for the program, I have been reviewing a couple of Kahan’s classic law review articles on inner-city policing.
First, in The Coming Crisis in Criminal Procedure, 86 Geo. L.J. 1153 (1998), Kahan and his co-author Tracey Meares (who will be visiting the Law School in February) argue that constitutional law unduly restricts the discretion of police. They contend that con law appropriately reined in police discretion in the 1960’s, when insitutionalized racism meant that police power could be, and often was, used as an instrument of oppression of minorities. But now the reins can (and should) be loosened, as minority communities have gained the political power they need to protect themselves from abuses of police power. “A body of doctrine designed to assure racial equality in law enforcement has now become an impediment to minority communities’ own efforts to liberate themselves from rampant crime . . . .” Such efforts might include curfews, antiloitering laws, warrantless searches, and order-maintenance policing.
Second, in Reciprocity, Collective Action, and Community Policing, 90 Cal. L. Rev. 1513 (2002), Kahan argues for a new theoretical framework for crime control in the inner-city. The dominant framework in recent years has been the deterrence framework: if we keep arresting and incarcerating more and more people, prospective criminals will eventually get the message that crime does not pay. As an alternative, Kahan draws on a large body of psychology research to suggest that what really drives people’s behavior is not fear of sanctions, but a tendency to reciprocate–to respond to cooperative behavior with more cooperation, and to respond to self-seeking or hostility by others in a negative, retaliatory manner. As he sees it, the trick to inner-city policing is getting residents to cooperate with one another and with the police in fighting crime. This means, among other things, more decentralization and flexibility in policing strategies, and attempting to foster greater involvement by residents in the law enforcement enterprise. Kahan is particularly laudatory of the Chicago Alternative Policing Strategy as a model, in which local advisory councils in high-crime neighborhoods were formed to collaborate with beat officers to address resident needs and concerns.