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Dirty Harry Problem The - Klockars PDF
Dirty Harry Problem The - Klockars PDF
Carl B. Klockars
Annals of the American Academy of Political and Social Science, Vol. 452, The Police and
Violence. (Nov., 1980), pp. 33-47.
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ANNALS,AAPSS, 452, November 1980
MEANS
E Morally
good A B
N (+I + + - +
The Dirty
D Harry
Problem
S
Morally
dirty C D
(-1 + - - -
. must reasoning:
be remembered next, on the way to
Combating distrust [of the police]
making their possibility real, is that
requires getting across the rather com-
policemen know, or think they plicated message that granting the police
know, before they employ a dirty specific forms of new authority may be
means that a dirty means and only the most effective means for reducing
a dirty means will work. abuse of authority which is now theirs;
that it is the absence of properly pro-
scribed forms of authority that often
Only a dirty means will work impels the police to engage in question-
The moral standard that a Dolice- able or outright illegal conduct. Before
man know in advance of resorting state legislatures enacted statutes giving
limited authority to the police to stop and
to a dirty means that a dirty means question persons suspected of criminal
and only a dirty means will work, involvement, police nevertheless stopped
rests heavilv on two technical di- and questioned people. It is incon-
mensions: ( I ) the professional com- ceivable how any police agency could
petence of the policeman and ( 2 ) be expected to operate without doing so.
the range of legitimate working But since the basis for their actions was
o ~ t i o n savailable to him. Both are unclear, the police-if they thought a
iitimately connected, though the challenge likely-would use the guise
distinction to be preserved between of arresting the individual on a minor
them is that the first is a matter of charge (often without clear evidence) to
provide a semblance of legality. Enact-
the policeman's individual com- ment of stopping and questioning statutes
petence and the second of the com- eliminated the need for this sham.'
petence of the institutions for which
(his department) and with which (the Herman Goldstein's preceding
law) the policeman works. argument and observations are un-
In any concrete case, the relations doubtedly true, but the danger in
between these moral and technical them is that they can be extended
dimensions of the Dirty Harry prob-
lem are extremely complicated. But 7. Herman Goldstein, Policing a Free
a ~ r i o r iit follows that the more Society (Cambridge, MA: Ballinger Pub-
competent a policeman is at the use lishing, 1977), p. 72.
to apply to any dirty means, not only keeping and law enforcement. It
illegal arrests to legitimate necessary would follow, of course, that if both
street stops, but dirty means to ac- these ends were held to be un-
complish subsequent searches and worthy, Dirty Harry problems would
seizures all the way to beating con- disappear. There are arguments
fessions out of susvects when no challenging both ends. For instance,
other means will work. But, of certain radical critiques of policing
course, Goldstein does not intend attempt to reduce the peace-keeping
his argument to be extended in and law-enforcing functions of the
these ways. police in the United States to
Nevertheless, his a priori argu- nothing more than acts of capitalist
ment, dangerous though it may be, oppression. From such a position
points to the fact that Dirty Harry flows not only the denial of the
problems can arise wherever restric- legitimacy of any talk of Dirty Harry
tions are placed on police methods problems, but also the denial of the
and are particularly likely to do so legitimacy of the entire police
when police themselves perceive f u n c t i ~ n . ~
that those restrictions are unde- Regardless of the merits of such
sirable; unreasonable, or unfair. His critiques, it will suffice for the
-
argument succeeds in doing what purpose of this analysis to main-
pojice who face Dirty Harry prob- tain that there is a large "clientele,"
lems constantly do: rendering the to use Albert Reiss's term, for both
law problematic. But while Goldstein, types of police f ~ n c t i o n .And ~ it
one of the most distinguished legal should come as no surprise to any-
scholars in America, can follow his one that the police themselves ac-
finding with books, articles., and cept the legitimacy of their own
lectures which urge change, it is peace-keeping and law-enforcing
left to the policeman to take upon ends. Some comment is ' needed,
himself the moral responsibility of though, on how large that clientele
subverting it with dirty and hidden for those functions is and how com-
means. pelling and unquestionable the ends
of peace keeping and law enforce-
Compelling and unquestionable ment are for them.
ends There is no more popular, com-
pelling, urgent, nor more broadly
If Dirty Harry problems can be appealing idea than peace. In inter-
shown to exist in their technical national relations, it is potent enough
dimensions-as genuine means- to legitimate the stockpiling of
ends problems where only dirty enough nuclear weapons to extermi-
means will work-the auestion of nate every living thing on earth a
the magnitude and urgency of the dozen times over. In domestic af-
ends that the dirty means may be fairs, it gives legitimacy to the idea
employed to achieve must still be
confronted. Specifically, it must be 8. See, for example, John F. Galliher,
shown that the ends of dirty means "Explanations of Police Behavior: A Critical
are so desirable that the failure to Review and Analysis," The Sociological
achieve them would cast the Derson Quarterly, 12:308- 18 (summer 1971); Richard
who is in a position to do so in Quinney, Class, State, and Crime (New York:
David McKay, 1977).
moral disrepute. 9. Albert J . Reiss, Jr., The Police and the
The two most widelv acknowl- Public (New Haven, CT: Yale University
edged ends of policing are peace Press, 1971), p. 122.
of the state, and the aspirations to it acter of this retributive ambition as
have succeeded in granting to the an end of policing and policemen?
state an absolute monowolv on the
right to legitimate the ksedof force
Both historicallv and socioloni-
tally there is ample evidence that
-
and a near monopoly on its actual, punishment is almost as unquestion-
legitimate use: the police. That able and compelling an end as peace.
peace has managed to legitimate Historicallv. we have a long and
these highly dangerous means to its painful history of punishmint, a
achievement in virtually every ad- history longer in fact than the his-
vanced nation in the world is ade- tory of the end of peace. Sociologi-
auate testimonv to the fact that it cally, the application of what may
qualifies, if a n i e n d does, as a good well be the only culturally uni-
end so unquestionable and so com- versal norm, the norm of recip.rocity,
pelling that it can legitimate risking imwlies the direct and natural rela-
the most dangerous and dirtiest of tions between wrongful acts and
means. their punishments.1 Possibly the
The fact is. though. that most -
best evidence for the strenzih and
American polidemen ;refer to define urgency of the desire to punish in
their work as law enforcement rather modern society is the extraordinary
than peace keeping, even though complex of rules and procedures
they may, in fact, do more of the democratic states have assembled
latter. It is a distinction that should which prevents legitimate punish-
not be allowed to slip away in as- ment from being administered wrong-
suming, for instance, that the police- fully or frivolously.
man's purpose in enforcing the law If we can conclude that peace and
is to keep the peace. Likewise, punishment are ends unquestion-
though it is a possibility, it will able and compelling enough to
not do to assume that police simply satisfy the demands of Dirty Harry
enforce the law as an end in itself, problems, we are led to one final
without meaning and without purpose question on which we may draw
or end. The widelv discretionarv from some sociological theories of
behavior of working policemen and the police for assistance. If the Dirty
the enormous underenforcement of Harry problem is at the core of the
the law which characterizes most police role, or at least near to it,
police agencies simply belie that how is it that police can or do come
possibility. to reconcile their use of-or their
An interpretation of law enforce- failure to use-dirty means to
ment which is compatible with em- achieve unquestionably good and
pirical studies of police behavior compelling ends?
-as peace keeping is-and police
talk in America-which peace keep-
ing generally is not-is an under-
standing of the ends of law enforce-
ment as punishment. There are, of
course. manv theories of ~ u n i s h -
ment, but th; police seem i k l i n e d The contemporary literature on
toward the simplest: the belief that policing appears to contain three
certain people who have committed
10. These two assertions are drawn from
certain acts deserve to be punished Graeme Newman's The Punishment Re-
for them. What can one say of the sponse (Philadelphia: J . B. Lippincott Co.,
compelling and unquestionable char- 1978).
quite different types of solution or Bittner's phrasing, as "snappy bureau-
resolution. But because the Dirty crats,"" cogs in a quasi-military
Harry problem is a genuine moral machine who do what they are told
dilemma, that is, a situation which out of a mix of fear, loyalty, routine,
will admit no real solution or resolu- and detailed specification of duties.
tion, each is necessarily defective. The professional model, unlike
Also, understandably, each solution other solutions to be considered.
or resolution resents itself as an is based on the assumption that the
answer to a sorqewhat different policeman's motives for working can
problem. In matters of public policy, be made to locate within his de-
such concealments are often neces- partment. He will, if told, work vice
sary and probably wise, although or traffic, juvenile or homicide,
they have a way of coming around to patrol passively or aggressively, and
haunt their architects sooner or later. produce one, two, four, or six arrests,
In discovering that each is flawed pedestrian stops, or reports per hour,
and in disclosing the concealments day, or week as his department sees
which allow the appearance of fit. In this way the assumption and
resolution. we do not urge that it be vision of the professional model in
held against sociologists that they policing is little different from that
are not philosophers nor do we argue of any bureaucracy which seeks by
that they should succeed where specifying tasks and setting expecta-
philosophers before them have failed. tions for levels of production-work
Rather, we only wish to make clear quotas-to coordinate a regular, pre-
what is risked by each concealment dictable, and efficient service for its
and to face candidlv the inevitablv clientele.
unfortunate ramifications which must The problem with this vision of
proceed from it. sine ira et studio service by obedient
operatives is that when the product
to be delivered is some form of
Snappy bureaucrats human service-education, welfare,
health, and police bureaucracies are
In the works of August Vollmer, similar in this way-the vision
Bruce Smith, 0. W. Wilson, and seems always to fall short of expecta-
those progressive police adminis- tions. On the one hand the would-be
trators who still follow their lead, bureaucratic operatives-teachers,
a vision of the perfect police agency social workers, nurses, and police-
and the perfect policeman has gained men-resent being treated as mere
considerable ground. Labeled "the bureaucrats and resist the translation
professional model" in police circles of their work into quotas, directives,
-though entirely different from any rules, regulations, or other abstract
classical sense of profession or pro- specifications. On the other hand, to
fessional-it envisions a highly the extent that the vision of an ef-
trained, technologically sophisticated ficient and obedient human service
police department operating free bureaucracy is realized, the cli-
from political interference with a entele of such institutions typically
corps of well-educated police re- come away with the impression
sponding obediently to the policies, that no one in the institution truly
orders, and directives of a central cares about their problems. And, of
administrative command. It is a
vision of police officers, to use 11. Bittner, p. 53.
course. in that the aim of bureau- Bittner's peace
cratization is to locate employees'
motives for work within the bureau- A second effort in the literature of
cracy, they are absolutely correct contemporary policing also attempts
in their feelings. to address the Dirty Harry problem
To the extent that the professional by substituting an alternative to the
model succeeds in making the ends presently prevailing police ends of
of policing locate within the agency punishment. Where the professional
as opposed to moral demands of the model sought to substitute bureau-
tasks which policemen are asked by cratic rewards and sanctions for the
their clients to do, it appears to solve moral end of punishment, the ele-
the Dirty Harry problem. When it gant polemics by Egon Bittner in
succeeds, it does so by replacing The Functions of Police in Modern
the morally compelling ends of Society and "Florence Nightingale
punishment and peace with the less in Pursuit of Willie Sutton: A Theory
human, though by no means uncom- of the Police" seek to substitute
pelling, ends of bureaucratic per- the end of peace. In beautifully
formance. However. this resolution chosen words, examples, and phras-
certainly does not imply that dirty ing, Bittner leads his readers to con-
means will disappear, only that the clude that peace is historically,
motives for their use will be career empirically, intellectually, a n d
advancement and ~romotion.Like- morally the most compelling, un-
wise, on those occasions when a questionable, and humane end of
morally sensitive policeman would policing. Bittner is, I fear, ab-
be c o m ~ e l l e dbv the demands of the solutely right.
situatiokal exigincies before him to It is the end of peace which legit-
use a dirty means, the bureaucratic imates the extension of police re-
operative envisioned by the pro- sponsibilities into a wide variety of
fessional model will merely do his civil matters-neighborhood dis-
job. Ambitious bureaucrats and obe- putes, loud parties, comer lounging,
dient timeservers fail at beine " the lovers' quarrels, political rallys,
t v ~ eof morallv sensitive souls we disobedient children, bicycle regis-
want to be policemen. The pro- tration, pet control, and a hundred
fessional model's bureaucratic reso- other types of tasks which a modern
"
lution of the Dirty Harry problem service" style police department
fails in policing for the same reason regularly is called upon to perform.
it fails in every other human service With these responsibilities, which
agency: it is quite simply an im- most "good" police agencies now
possibility to create a bureaucrat accept willingly and officially, also
who cares for anything but his comes the need for an extension
bureaucracy. of police powers. Arrest is, after all,
The idealized image of the Dro- too crude a tool to be used in all the
fessional model, whicvh has been re- various situations in which our
sponded to with an ideal critique, peace-keeping policemen are rou-
is probably unrealizable. Reality tinely asked to be of help. "Why
intervenes as the ideal type is ap- should," asks Herman Goldstein,
proached. The bureaucracy seems to in a manner in which Bittner would
take on weight as it approaches the approve, "a police officer arrest and
pole, is slowed, and may even col- charge a disorderly tavern patron if
lapse in approaching. ordering him to leave the tavern
will suffice? Must he arrest and tremely close to stating the Dirty
charge one of the parties in a lovers' Harry problem openly when he
quarrel if assistance in forcing a writes:
separation is all that is desired?"" . . . He (the policeman) sees himself
There is no question that both those as a craftsman, at his best, a master of
situations could be handled more his trade . . . [he] draws a moral dis-
peacefully if police were granted tinction between criminal law and crimi-
new powers which would allow nal procedure. The distinction is drawn
them to handle those situations in somewhat as follows: The substantive
the way Goldstein rhetorically asks law of crimes is intended to control the
if they should. That such extensions behavior of people who wilfully injure
of police powers will be asked for by persons or property, or who engage in
our most enlightened police depart- behaviors having such a consequence,
such as the use of narcotics. Criminal
ments in the interests of keeping the procedure, by contrast, is intended to
peace is absolutely certain. If the control authorities, not criminals. As
success of the decriminalization of such, it does not fall into the same
police arrests for public intoxication, moral class of constraint as substantive
vagrancy, mental illness, and the criminal law. If a policeman were him-
virtually unrestricted two-hour right self to use narcotics, or to steal, or to
of detention made possible by the assault, outside the line of d u t y , much
Uniform Law of Arrest are any in- the same standards would be applied to
dication of the likelihood of exten- him by other policemen as to the ordi-
sions being received favorably, the nary citizen. When, however, the issue
concerns the policeman's freedom to
end of peace and its superiority over carry out his duties, another moral realm
punishment in legitimating the ex- is entered.13
tension of police powers seem ex-
ceedingly likely to prevail further. What is more, Skolnick's craftsman
The problem with peace is that it finds support from his peers, depart-
is not the only end of policing so ment, his community, and the law for
compelling, unquestionable, and in the moral rightness of his calling.
the end, humane. Amid the good He cares about his work and finds it
work toward the end of peace that just.
we increasingly want our police to What troubles Skolnick about his
do, it is certain that individuals or craftsman is his craft. The craftsman
groups will arise who the police, in refuses to see, as Skolnick thinks
all their peace-keeping benevo- he ought to, that the dirty means he
lence, will conclude, on moral if not sometimes uses to achieve his good
political or institutional grounds, ends stand in the same moral class
have "got it coming." And all the once of wrongs as those he is employed
dirty means which were bleached in -
to fight. Skolnick's craftsman reaches
the brilliant light of peace will re- this conclusion by understanding
turn to their true colors. that his unquestionably good and
compelling ends, on certain oc-
Skolnick's craftsman casions, justify his employment of
dirty means to their achievement.
The third and final attempt to re- Skolnick's craftsman, as Skolnick
solve the Dirty Harry problem is of- understands him, resolves the Dirty
fered by Jerome Skolnick, who in
Justice Without Trial comes ex-
13. Jerome Skolnick,Justice Without Trial,
2nd ed. (New York: John Wiley & Sons, 1975),
12. Ibid., p. 72. p. 182.
Harry problem by denying the dirti- retributive principles of punishment
ness of his means. to his wrongful acts that he is quite
Skolnick's craftsman's resolution willing to apply to others! It is, in
is, speaking precisely, Machiavellian. fact, only when his wrongful acts are
It should come as no surprise to find ~ u n i s h e dthat he will come to see
the re~resentative of one of the them as wrongful and will appreciate
classicittempts to resolve the prob- the genuine moral-rather than
lem of Dirty Hands to be a front run- technical or occupational-choice
ner in response to Dirty Harry. What -
he makes in resorting to them. The
is worrisome about such a resolu- prospects for punishment of such
tion? What does it conceal that acts are by no means dim, and con-
makes our genuine dilemma dis- siderable strides in this area have
appear? The problem is not that the been made. It requires far fewer re-
craftsman will sometimes choose to sources to punish than to reward.
use dirty means. If he is morally Secondly, the likelihood that juries
sensitive to its demands. everv in civil suits will find dirtv means
policeman's work will sometimes dirtier than police do is confirmed
require as much. What is worrisome by police claims that outsiders can-
about Skolnick's craftsman is that he not appreciate the same moral and
does not regard his means as dirty technical distinctions that they do.
and, as Skolnick tells us, does not Finally, severe financial losses to
suffer from their use. The craftsman, police agencies as well as to their
if Skolnick's ort trait of him is cor- officers eventuallv communicate to
rect, will resort to dirty means too both that vigorously policing them-
readily and too easily. He lacks the selves is cheaper and more pleasing
restraint that can come only from than having to pay so heavily if they
struggling to justify them and from do not. If under such conditions our
taking seriously the hazards in- craftsman police officer is still
volved. willing to risk the employment of
In 1966, when Justice Without dirtv means to achieve what he
Trial first appeared, Skolnick re- understands to be unquestionably
garded the prospects of creating a good ends, he will not only know
more morallv sensitive craftsman ex- that he has behaved justly, but that
ceedingly dim. He could not imagine in doing so he must run the risk of
that the craftsman's community, em- becoming genuinely guilty as well.
ployer, peers, or the courts could
come to reward him more for his
legal compliance than for the achieve- In urging the punishment of
ment of the ends of his craft. How- policemen who resort to dirty means
ever, in phrasing the prospects in to achieve some unquestionably
terms of a Dirty Harry problem, one good and morally compelling end,
can not only agree with Skolnick we recognize that we create a
that denying the goodness of un- Dirty Harry problem for ourselves
questionably good ends is a practical and for those we urge to effect such
and political impossibility, but can punishments. It is a fitting end, one
also uncover another alternative, which teaches once again that the
one which Skolnick does not pursue. danger in Dirty Harry problems is
The alternative the Dirty Harry never in their resolution, but in
problem leads us to is ensuring that thinking that one ha8 found a reso-
the craftsman regards his dirty lution with which one can truly
means as dirty by applying the same live in peace.