James Q. Wilson and Broken Windows Policing

Media coverage of the death of conservative political scientist James Q. Wilson on March 2 correctly identified him as the originator of “broken windows policing” and blithely assumed such policing had been successful. Ross Douthat’s column in the New York Times of March 4, for example, said that Wilsonian policing had resulted in “the low crime rates that have made urban areas from Portlandia to Brooklyn safe for left-wing hipsters and Obama-voting professionals alike.”

The basic premise of “broken windows” policing is that criminals are encouraged when neighborhoods look decayed. However, if police crack down on such things as broken windows, public urination, graffiti, panhandlers, and prostitutes, neighborhood pride is restored and residents are more likely to stand up against crime. Eventually, the theory goes, criminals will get the message and give up their nefarious ways.

Continue ReadingJames Q. Wilson and Broken Windows Policing

The Resurrection of the “Trespass” Element of Fourth Amendment Law

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure.  See generally 132 S.Ct. 945 (2012).  In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Specifically, police officers obtained a warrant to put the tracking device on a car registered to Jones’ wife.  Jones, 132 S.Ct. at 948.  Officers then placed the GPS tracker on the undercarriage of the car while it was parked in a public parking lot.  Id.  The officers then monitored the car’s movements for 28 days.  Id.  Eventually, the Government indicted Jones on charges of (among other things) conspiracy to distribute and possess with intent to distribute cocaine.  Id.  Jones moved to suppress the evidence from the GPS device.  

Continue ReadingThe Resurrection of the “Trespass” Element of Fourth Amendment Law

The Criminal Jurisdiction of Indian Tribes

This is the third in a series of posts addressing commonly asked questions regarding American Indians, Indian Tribes, and the law. The first post dealt with casinos, taxation, and hunting and fishing rights, while the second focused on the relationship between the unique legal treatment of Indian tribes or their members and the U.S. Constitution’s guarantee of equal protection. This post will explore the criminal jurisdiction of tribes, with the expectation that one or more future posts will similarly explore the criminal jurisdiction of the federal and state governments in relation to Indians or conduct on Indian lands.

Sovereignty, as conceptualized in the Western legal-political tradition, has customarily included the power to enact and enforce a criminal code against persons who, within the sovereign’s territory or against its citizenry, commit conduct injurious to health, safety, welfare, and morals. This is a theoretical standard, however, and today across the globe as well as in the United States—and not just with regard to Indian tribes—one can observe forms of sovereignty that include degrees of diminished (or less-than-plenary) criminal jurisdiction.

The most obvious domestic example involves the respective authority of the federal and state governments.

Continue ReadingThe Criminal Jurisdiction of Indian Tribes