By Casey Witte and Emily Mooney

  Law enforcement agencies are the gatekeepers of the criminal justice system. Charged with responding to calls for service and investigating crimes, they also exercise a great deal of authority and discretion when it comes to how individuals are held accountable for misbehavior. Depending on the alleged act, state and agency, police officers can correct wrongdoing without an arrest or any court involvement. In some cases, police officers may be authorized to give an individual a warning or citation or to refer someone to community-based programming or services. Colloquially termed “diversion” opportunities due to their movement away from the formal court process, these decisions can be life-changing, particularly when a child is accused of committing a crime. Adolescents are especially prone to partake in risky behaviors, be affected by negative peer influences and struggle to adequately account for  the consequences of their actions—all of which put them at greater risk of coming into contact with the justice system. Youth misbehavior can also be a reflection of trauma or a mislabeling of typical child actions due to overbroad criminal laws, such as those that punish youth for “disorderly conduct.” Fortunately, what we know about child development suggests children naturally age-out of crime as their cognitive functions develop, and trauma can be treated outside of the justice process. Police officers can likewise work collaboratively with other community actors to ensure overbroad laws do not result in criminal justice responses to actions better dealt with by schools and parents. After all, when people are arrested, processed and marked with a criminal record all before the age of 18, the long-term consequences can be devastating. Simply being stopped by police can have detrimental effects on a young person’s future, with some research suggesting it can amplify the young person’s likelihood of future criminal activity. After an arrest, a youth is on track to earn less income over their lifetime and be substantially less-educated than their peers. And when a youth arrest is followed by a stint of detention or incarceration, research suggests young people are even more likely to return to crime, particularly when they have had few prior interactions with the justice system. This means that when we introduce our youngest to the justice system, without full consideration of effective alternatives to hold them accountable, we are at risk of crippling their future and accelerating further societal harm. In response to this problem, states and individual law enforcement agencies have begun to establish formal youth diversion programs with set eligibility criteria. These programs allow youth to avoid being formally processed further in the justice system if they complete certain requirements, such as community service. Often, they provide resources— such as referrals to counseling or job services—aimed at meeting the needs of the youth that enter these programs and addressing the factors that led to law enforcement contact. However, there is no uniform design for diversion programs nor is there a uniform understanding of which youth should be diverted. As a result, program components and utility can vary wildly from state to state or even town to town. Such is the case in the state of Maryland. From Allegany to Worcester, law enforcement-driven diversion programs— which for the purposes of this paper are defined as programs managed by law enforcement agencies to which youth can be referred rather than having their case sent to the Department of Juvenile Services (DJS)—have started to take hold, though successful iterations with proven efficacy are still few and far between.6 In recent years, many law enforcement agencies have taken a step in the right direction by creating or forming relationships with existing youth diversion programs in their communities. In some cases, diversion programs driven by State’s Attorney’s Offices have worked to divert young people prior to a DJS referral as well. However, there are still a substantial number of jurisdictions that have no law enforcement-driven diversion programs whatsoever. Accordingly, this policy study will address the importance of police diversion, the state of law enforcement-driven diversion programs in Maryland, and ultimately recommend policies aimed at creating a statewide environment in which all Maryland youth have opportunities to be diverted by law enforcement earlier and with more efficacy. 

Washington, DC: R Street, 2021. 15p

By Emma Zürcher, Lana Eekelschot, Annalena Wolcke, Lucy Strang

Police performance measurement is a complex activity that encompasses considerations of the social, legal, institutional and political contexts in which a police force operates. The definitions and methods used need to be regularly updated and adapted to reflect the constant changes in these contexts. This study follows from a broader desire, articulated by the national police force and the Ministry for Justice and Security, to improve how police performance is measured in the Netherlands. Indeed in 2014, Tilburg University and KU Leuven conducted a study to develop a new framework for productivity measurement of the Dutch police.1 While this study provided useful insights, approaches to performance measurement adopted by police forces abroad may also offer valid examples for the Netherlands and provide opportunities for general learning. Research design The study had two main goals: 1) To gather insights into how different police jurisdictions have approached performance measurement. 2) To assess what lessons these approaches can offer for improving police performance measurement in the Netherlands. A series of research questions were developed to meet these goals (see Section 1.1.2.). These questions focused on the methods and indicators used to measure performance in a selection of ten policing jurisdictions,2 including the Netherlands; the stated purposes of the performance measurement; the reliability of the approaches; identified or potential adverse side effects of measuring performance; and examples of good or innovative practice in these areas. In addition, several research questions focused on the methods and indicators used to gain insight into the performance of the Dutch police; the aspects of policing not currently captured in this framework; the lessons that approaches to performance measurement in other jurisdictions may offer the Netherlands; and the transferability of these approaches to the Netherlands. To address these research questions, the study team conducted a targeted literature review and expert and stakeholder interviews in each of these jurisdictions, including the Netherlands. The team then selected five case study jurisdictions for more in-depth data collection and analysis: England and Wales, Israel, North Rhine-Westphalia (Germany), Seattle (United States) and Sweden. Using the resulting findings, the study team focused on extracting current practices from the case study jurisdictions that had potential to offer  starting points for improving police performance measurement in the Netherlands. These are presented in the main body of this report. For the countries not selected as case studies (Australia, Canada, Finland, New Zealand and the United States), the study team prepared high-level summaries of current approaches and highlighted several relevant practices that may be of interest to policy makers for the Dutch National Police. These are presented in Annex A. To provide focus and enhance the feasibility of the research, this study looks exclusively at how police performance measurement has been approached by stakeholders who can directly influence policing policy, such as the police force and national- and local-level government stakeholders. For each of the case study jurisdictions, the research team has analysed the practices used by the relevant police force(s) and the administrative and/or political authority under which they sit. We are confident that the findings will therefore be of particular interest to decision-makers for the Dutch National Police, including police leadership at both national and regional levels and the Ministry of Justice and Security, and provide leads for improving how police performance is currently measured.        

Cambridge, UK: RAND Europe, 2023. 182p

By Cristina Tilley

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal mid-century onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in the campaign for just middle spaces, taking as its exemplar the problem of racially oppressive policing. Inequitable policing arises from both system-level policies and personal officer biases. Public law can remake systems, but struggles to remake people. Consequently, this piece argues that the legal quest for humane policing has overemphasized public law litigation under 42 U.S.C. Section 1983 and underemphasized the private law of tort. Personal injury law, specifically the intentional infliction of emotional distress (IIED) tort, has untapped potential to influence the private bias of officers and the communities they serve. IIED invites individuation of Black litigants, self-reflection on the meaning of racial dignity in middle spaces, and construction of shared norms about civilian humanity—a panoply of exercises social psychologists have identified as the essential tools of anti-bias work. Returning to broader themes, the article builds on the example of inequitable policing to petition for full private law partnership in the bid for twenty-first century social justice.

Brooklyn Law Review , Vol. 89, No. 2, 2024

U Iowa Legal Studies Research Paper No. 2024-08

By  J.J. van Berkel A. van Uden J.H. Goes

The Dutch Computer Crime Act III (CCIII) came into effect on 1 March 2019. Among other things, this Act introduces the power of the police to carry out hacking operations. The new Sections 126nba, 126uba, 126zpa in the Code of Criminal Procedure will allow specially authorised investigating officers to covertly and remotely intrude into computer systems under certain conditions and investigate them. The police can carry out investigative actions using technical tools. In principle, a technical device must be inspected and approved by an independent inspection service (de Keuringsdienst) prior to its use, in order to guarantee the reliability, traceability and integrity of the evidence. The Justice & Security Inspectorate (hereinafter Inspectorate) supervises the implementation of the hacking power. In its first Report in 2020, it concluded that the use of technical tools for hacking powers and the inspection of these tools were not yet proceeding as intended under the legal framework. In his response to the first Inspectorate Report, the then Minister of Justice and Security indicated that he would have an investigation into the safeguards of technical tools used by foreign police authorities. The present report is the result of this research. This report also supplements the previously published evaluation of the use of the hacking power in the Netherlands, carried out by the WODC.

The central research question for this study is as follows: What safeguards govern hacking powers abroad, more specifically the use of technical tools, and how does this compare with the Dutch situation? The central research question is answered on the basis of the following subquestions: 1 What countries allow ‘authorised hacking’ and on the basis of which legal ground can foreign police services carry out hacking operations in their own country? 2 What statutory conditions apply in other countries for police services to deploy the hacking power? 3 To what extent do other countries test technical tools and what has been laid down in legislation and regulations on this? 4 To what extent are there any other rules to ensure the reliability, traceability and integrity of data obtained with the use of technical tools? 5 How does the working method abroad compare with the Dutch working method regarding the approval of technical tools and any other safeguards to achieve data reliability, integrity and traceability?    

The Hague: Netherlands Ministry of Justice,  WODC Research and Documentation Centre , 2023. 154p