"No, no!" said the Queen. "Sentence first-verdict afterwards." - Lewis Carroll, Alice's Adventures in Wonderland
Now that the injustice of the lacrosse case has been corrected, let us not forgot another less outlandish but no less outrageous violation of the rights of Duke students by local law enforcement agencies that has yet to be resolved: the Durham Police Department's announced policy instructing officers to arrest Duke students for minor quality-of-life offenses in Trinity Park that would otherwise be disposed of through a simple citation.
Traditionally, pretrial detention served one purpose and one purpose only-to ensure that defendants, who are considered innocent until proven guilty, appear at trial. That is why those who are arrested and charged with a crime can obtain their freedom by giving sufficient pledges that they will appear and those accused of minor offenses are simply given a citation to appear. Within the last few decades courts have also recognized the right of the state to detain arrestees without bond if they are deemed a potential threat to the community.
The Durham police policy serves neither purpose. Instead, by its own terms, it is meant to be punitive. It was put in place because police felt that the courts were not doing enough to deter Duke students from making noise in Trinity Park. The result is a punishment without a criminal conviction and a violation of the 14th Amendment, which forbids deprivation of liberty without due process of law. Indeed, the fact that many of the students arrested end up being acquitted outright at trial further highlights the injustice.
If the lacrosse case demonstrated one thing, it is that procedure matters. Due process ensures that legal disputes will be settled in a rational rather than irrational manner. In the words of Jerry Mashaw, it goes to the very heart of "what it means politically to be an individual or to act as an individual." It is the epitome of Kantian ethics because, in the words of Cynthia Farina, "To wreak harm on the individual without meaningfully consulting him because it is cheaper, or quicker, or simply less bother not to involve him, is to reduce him to an instrument in the service of efficiency or inertia."
To insist on due process is not to condone unlawful and inconsiderate behavior by students off campus or prevent the proper enforcement of the law by police. Rather, it is to insist that police themselves observe the rule of law as they purport to uphold it and to ensure that justice is actually a goal rather than a pretext.
The Durham Police Department's policy is bad not only for Duke. It is bad for Durham as well. It harkens back to a time when the dominant approach used by police in the war on crime was a lock-'em-all-up mentality combined with intimidation by any means available, legal or extralegal. William Stuntz has studied the evolution of law enforcement policy over the last 50 years. He finds that police unwillingness to deviate from these tactics substantially contributed to the increase in crime in urban areas in the 1960s and '70s.
Minorities always bore the brunt of heavy-handed tactics by police. When minorities gained political power in urban areas and demanded reforms, most police departments could not provide the type of policing that was needed. Instead, all minorities could get was the next best thing: less policing in areas where minorities lived.
The result was the rampant, unrestrained crime that destroyed many of these urban neighborhoods. As one wag asked in reference to the letter sent to Duke students living in Trinity Park last year warning them that police would be vigorously enforcing noise and alcohol ordinances, "Did they send a similar letter to all of Durham's crack houses?"
Instead, what is needed for Trinity Park and the rest of Durham is modern community policing, which stresses police involvement in the neighborhoods they patrol and an emphasis on deterring crime by fostering respect for the law and cooperation with the police. Crime-free neighborhoods should be something all residents of Durham enjoy, not just those in Trinity Park.
The DPD has many good, well trained police officers who want to make a difference in the community. There should be more of them and they should be the ones who are turned loose on Durham's neighborhoods.
The DPD is currently undergoing reaccreditation. Also, a commission has been established to look at its conduct during the lacrosse case. Now is the perfect opportunity for Duke to speak up in favor of reform, for the good of its students and for the good of the people of Durham.
Jason Trumpbour, Trinity '88, Grad '91 and Law '91, teaches law at the University of Maryland School of Law and legal and ethical studies at the University of Baltimore. He was formerly an attorney in the Criminal Appeals Division of the Maryland attorney general's office. He is the spokesperson for the Friends of Duke University.
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