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The Duty of Responsible Administration and the Problem of Police Accountability

By Charles F. Sabel and William H. Simont

Abstract

Many contemporary civil rights claims arise from institutional activity that, while troubling, is neither malicious nor egregiously reckless. When lawmakers find themselves unable to produce substantive rules for such activity, they often turn to regulating the actors\u27 exercise of discretion. The consequence is an emerging duty of responsible administration that requires managers to actively assess the effects of their conduct on civil rights values and make reasonable efforts to mitigate harm to protected groups. This doctrinal evolution partially but imperfectly converges with an increasing emphasis in public administration on the need to reassess routines in the light of changing circumstances. We illustrate the doctrinal and administrative changes with a study of policing. We discuss court-supervised reforms in New York and Cincinnati as examples of contrasting trajectories that these developments can take. Both initiatives are better understood in terms of an implicit duty of responsible administration than as an expression of any particular substantive right. The Cincinnati intervention, however, reaches more deeply into core administrative practices and indeed mandates a particular crime control strategy: Problem-Oriented Policing (POP). As such, it typifies a more ambitious type of structural intervention that parallels comprehensive civil rights initiatives in other areas

Topics: Law
Publisher: Yale Law School Legal Scholarship Repository
Year: 2016
OAI identifier: oai:digitalcommons.law.yale.edu:yjreg-1483
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