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Washington Law Review

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This Article attempts to re-frame a burgeoning scholarly debate about the appropriateness of neighborhood self-governance as both a means to local crime control and a normatively worthy end in itself. On one side of the existing debate stands an emerging and influential group of "new discretion" scholars, who defend the delegation of discretion to police officers attempting to enforce social norms that are often ambiguous. These scholars argue that the support and involvement of so-called "communities" in such law enforcement efforts can be an adequate substitute for traditional judicial scrutiny of police discretion, particularly the prohibition against vague criminal laws. On the other side of the debate are traditional civil libertarians who view norm-based policing and the theories of self-governance underlying it as thinly disguised forms of majoritarianism.

This Article has two primary goals. One goal is to use the author's experience as a community-based prosecutor to critique the new discretion scholars' reliance upon malleable notions of community to determine the legality of police programs. The second goal is to develop a more meaningful distinction among new policing efforts. Specifically, this Article advocates a distinction between civil and criminal initiatives. This approach would retain the existing prohibition against vague criminal laws. However, it would permit cities to implement strategies requiring police discretion, as long as those strategies avoid traditional criminal investigation, prosecution, and punishment. Such an approach would force cities either to adopt nontraditional responses to public safety problems or to be scrutinized under the traditional rules governing criminal law and procedure.



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