Legal Frameworks for Third-Party Policing Research Paper

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Public police are now one part of a network of law enforcement that includes private police and security, regulatory agencies, businesses, schools, and private individuals. Police have always formed partnerships to help them in responding to, and preventing crime, but increasingly these partnerships are moving beyond joint approaches to solving community problems. Third-party policing is an approach that rests on the use of legal levers available to non-offending third parties under regulatory and private law frameworks. There has been a blurring of these frameworks in recent times, so that many noncriminal levers are available for police and their partners to use for crime reduction purposes. The types of levers commonly used in third-party policing are discussed, along with the types of crime and disorder problems which they have been used to address. Challenges to the broader use of regulatory frameworks are overviewed, and future directions and especially the need for further research, are suggested.

Introduction

Third-party policing (TPP) occurs when police form crime control or prevention partnerships or networks with non-offending third parties (Mazerolle and Ransley 2005; Buerger and Mazerolle 1998). Police partner with a range of state and non-state agencies, private organizations, and individuals to focus on crime reduction or prevention goals. Typical partners include housing agencies, property owners, rental agents, health and building inspectors, private businesses and professionals, parents, schools, and private security providers. Typical crime problems at which TPP has been directed include illicit drugs, alcohol-related violence and disorder, young offenders, and property offenses.

The distinctive feature of TPP, compared with other innovative and proactive policing strategies such as problem-oriented policing (POP), is its placement within a legal and regulatory framework. This framework enables police to use the authority and powers of their voluntary, co-opted, or coerced partners to help control crime problems. In particular, police gain access through their partners to a range of criminal and noncriminal legal mechanisms or levers. These levers include civil regulation and remedies, along with contractual and tortious rights, which can greatly extend the reach of police (Mazerolle and Ransley 2005, 2006). Unlike POP, TPP goes beyond merely “harnessing the crime control capacities of third parties” (Cherney 2008: 631) in identifying and developing responses to crime problems. It draws on developments in regulatory theory and practice that allow police to use new techniques, institutions, and mentalities of control. Police become part of the trend to regulatory justice (Crawford 2003, 2009) that can extend and improve upon traditional criminal justice responses. In its focus on problem places, people, and activities, TPP also brings together opportunity and place-based theories of crime and crime prevention with innovative policing strategies, and gives police a new role as regulators of crime (Eck and Eck 2012; Mazerolle and Ransley 2012).

One appeal of TPP for governments and law enforcement is that non-offending third parties assume, or are made to assume, some of the responsibility and costs of controlling and preventing crime. Especially in times of fiscal restraint this has economic advantages (Eck and Eck 2012), as well as giving police access to new levers and remedies, such as civil orders and injunctions, property closures, parental responsibility contracts, and asset forfeiture schemes. These levers can be directed at the underlying causes and supports of crime, and can have a preventive and intelligence-based focus rather than the purely reactive responses of most traditional policing practices. A second appeal of TPP is that by relying on noncriminal measures, some of the restrictions and protections of the criminal justice system such as high evidentiary standards and burdens of proof, can be avoided (Mazerolle and Ransley 2005; Crawford 2009).

The discussion below canvasses these issues, beginning with an analysis of the regulatory and legal context of TPP. It compares TPP with traditional approaches to crime control and prevention, and then discusses in detail the legal frameworks most used in TPP. The discussion moves on to some of the key issues and debates arising from the topic, including the potential impact of TPP on increased criminalization and net-widening, and for inequitable and discriminatory policing. The final comments address future directions for TPP and the need for more evidence-based research on what levers work best and when, and why this is so.

Fundamentals

Context: Regulatory Approaches To Criminal Justice

Third-party policing approaches are part of a broader shift in regulation and governance which has occurred in many societies over the past 40 years, and which has led to new responses to crime along with many other social and economic problems (Feeley and Simon 1992; Ericson and Haggerty 1997; Garland 2001; Ericson 2007). The new approaches to governance have involved a move away from state sovereignty and control to networks of power (Braithwaite 2000), a diffusion of responsibility (Garland 2001), and an expectation that non-state actors and individuals must contribute to responses and solutions. Regulatory theorists see this as a shift from state-centered command and control to new modes of pluralistic, networked, or nodal regulation (Burris et al. 2005).

Central to this shift has been the rise of risk as an organizing concept, so that the new forms of regulation rely on notions of risk assessment, identification, and analysis, rather than on general rules applied equally to all regulated individuals (Sparrow 2012). Feeley and Simon (1992) applied this concept to criminal justice, arguing that it has seen a shift from a focus on individual offenders, the assignment of blame and responsibility, and goals of treatment and rehabilitation. In their “new penology,” the focus instead is on actuarial classifications of risk and dangerousness and reliance on selective surveillance and incapacitation to reduce crime opportunities (Willis and Mastrofski 2012). The shift from old to new penology is also a shift from seeing crime as deviance to crime as normalized, and from ideas of treatment and rehabilitation to the management of risk (Garland 2001).

At the same time, the development of the new regulatory state (Braithwaite 2000) has led to a “proliferation of new administrative agencies as well as an enormous expansion in private policing. Regulatory and private policing entities are part of a new division of policing labour with the public police” (Ericson 2007: 387). Regulatory styles have also shifted, from a focus on command and control and detailed prescriptions and inspectorate models, to new forms of responsive and smart regulation tailored to particular industries and contexts, and in which risk identification and management again plays a central role (Mazerolle and Ransley 2005).

As a result of these trends to risk, regulation, and pluralization, public police have now been joined by regulatory agencies with many police-like powers, and private policing organizations, in overlapping networks of security. Policing is now provided by “a growing plethora of governmental and non-governmental providers” (Stenning 2009: 22; Jones and Newburn 2006). Contemporary policing is marked by diversity, complexity, and a “messy reality” where rather than smart and responsive regulation playing a less coercive role than traditional law enforcement, tools of intervention have become increasingly interchangeable and overlapping (Crawford 2006: 469). In this environment the role of public police has changed, so that policing services are increasingly provided by networks of public, private, and welfare agencies, with public police as one node of the network (Ransley and Mazerolle 2009), albeit a coordinating or anchoring node (Ericson and Haggerty 1997; Crawford 2006).

In addition to these new regulatory approaches to criminal justice and policing, new theories have been developed about crime control and prevention. The rise of crime opportunity theory and its focus on places, patterns, routine activities, and rational choice has led to recognition that regulation and regulatory measures or instruments have a central role to play in criminal justice and crime control (Eck and Eck 2012; Ayling et al. 2008; Mazerolle and Ransley 2012). TPP provides an organizing framework for how this occurs, and highlights the role of police in developing and implementing new regulatory approaches to crime control and prevention.

As discussed earlier, TPP occurs when police persuade or coerce non-offending partners into assuming crime reduction or prevention responsibilities. As such, police form formal or informal partnerships directed at specific crime problems. The development of police partnerships is not new – as Smith and Alpert (2011) point out, Sir Robert Peel’s eighteenth-century “new police” rested on a community partnership model. Contemporary versions of community policing also rely heavily on policing as a series of collaborative partnerships (Willis and Mastrofski 2011; Skogan 2011) focused on identifying and solving community problems. The “joint policing” model involves “collaborative, proactive, preventive actions to reduce or remove crime and to protect and secure spaces and places in lieu of traditional reactive models” (Smith and Alpert 2011: 136). Similarly, problem-oriented policing approaches often focus on police working with community members to identify problems and their solutions. What sets third-party policing apart from these other strategies is the way in which it involves police harnessing not just partners but their formal and informal legal powers over offenders or potential offenders. These partnerships occur within a context of changing legal frameworks.

Changing Legal Frameworks

The messy reality of policing now draws on a range of legal frameworks, in addition to traditional criminal justice models. The major distinction between these frameworks has been in their goals and targets – traditionally criminal law has focused on detecting and prosecuting those who commit morally wrong offenses, while regulatory and private law measures have focused on governing legal business and private activities (Mazerolle and Ransley 2012), mainly using negotiation, inspection, and administrative and civil sanctions, as shown in Table 1. As an organizing and analytical mechanism, the different categories of law are described by reference to their goals, attributes, targets, methods, outcomes, actors, and styles (see Mazerolle and Ransley 2005: 67–69; Cheh 1998).

In the context described above, where trends in governance, risk, and pluralization have broken down traditional categories, there has been a blurring of legal frameworks. As shown in Table 2, criminal law now draws on regulatory and civil law mechanisms, and vice versa. Mazerolle and Ransley (2005: 67) refer to this as a convergence of legal frameworks. In this environment, criminal law makes use of civil processes and remedies, while in both regulatory and private law serious misbehaviors are criminalized. The major implication of this convergence in legal frameworks has been to facilitate the use in criminal law enforcement of a large range of sanctions and processes outside the traditional criminal justice system, such as civil remedies and administrative sanctions. The principal facilitator of this convergence has been the concept of risk. Proactive policing strategies have focused on risky places (i.e., hotspots of crime) and people (i.e., repeat offenders, particular groups), while regulators have adopted self-regulation approaches based on risk assessment (Sparrow 2012). The main effect of this convergence can be seen in Table 2 in that there has been a blurring of targets, methods, outcomes, actors, and styles across the different categories of law, in contrast to the relatively clear-cut divisions shown in Table 1.

The rise of TPP is a reflection of this convergence, in that it enables police to draw on a much wider variety of legal levers than was previously available to them. The next section discusses some of those levers.

Legal Levers For Third-Party Policing

Despite this convergence of legal frameworks, it is important to understand the source of law that underpins each legal lever used in TPP, because this source affects the nature, extent, and limitations of the lever. Table 3 summarizes the levers commonly used in TPP and their main features. For each type of lever, there is a description of the source of authority (whether legislation, regulation, contract, or tort), the extent to which the lever applies (i.e., generally or targeted), and the types of legal outcomes that can arise. The final column indicates the range of non-offending third parties who are utilized by each lever to achieve crime control or reduction benefits, through the co-option of their legal authority.

Table 3 is not a comprehensive list of legal levers available, but it does illustrate the range and breadth of measures, and of potential third parties, that can be used in TPP. Mazerolle and Ransley (2005) give comprehensive examples of the ways in which each of these levers has been used across different jurisdictions, in the two broad areas of controlling and prevent drug problems, and other forms of crime. For drug problems, laws and regulations focused on premises (e.g., crack houses, methamphetamine laboratories, derelict buildings), and accompanying nuisance abatement civil suits, have been used in many places in the United States and Australia. These strategies involve police partnering with city and state inspectors and sometimes neighbors, to require property owners to become more responsible for controlling activities on their premises that lead to drug problems. A range of civil sanctions can be used (fines, injunctions, rectification orders, loss of license or permit, forfeiture) to persuade or coerce these third parties to assume crime control responsibilities. This not only shares responsibility but shifts some of the costs associated with crime reduction to third parties. The use of civil levers removes the need for police to gather evidence to a criminal standard of proof, to prove individual responsibility for breaches, and often also involves a reversal of the burden of proof, so that property owners must show they were not aware of criminal activities to avoid responsibility. Other drug problem-related forms of TPP include monitoring and reporting schemes, such as when doctors, pharmacists or chemical manufacturers, wholesalers and retailers are required to record and report transactions involving drug precursors. Such schemes co-opt these third parties into systems of surveillance and sources of intelligence for proactive policing.

For other nondrug crimes, the most wide-spread use of TPP has been in schemes designed to reduce or prevent antisocial behavior and disorder. The most comprehensive of these schemes is the antisocial behavior agenda introduced in Britain from 1998 onward, which featured a range of civil orders and contracts imposed to control offending and pre-offending activities. Crawford (2009: 817) identifies 18 new tools used in this scheme, including civil orders (e.g., antisocial behavior, drug intervention, parenting, individual support, child curfew, dispersal, drink banning orders) and contracts (e.g., acceptable behavior, parenting, tenancy contracts). All of the measures are civil, involving a mix of regulatory and contractual techniques, but breach of most leads to a criminal sanction. The scheme has been much criticized, and while the new government elected in 2010 announced its intention of withdrawing the system, its most recent proposals suggest that many of the new tools will be rebranded and retained (see The Independent, 23/5/2012). While the British antisocial behavior scheme is comprehensive, many of its individual components are seen in other jurisdictions. In particular, measures directed at parental responsibility for juveniles, such as truancy and curfew orders, are common in Australia and some parts of the United States (see Mazerolle and Ransley 2005). Most jurisdictions have anti-vagrancy and begging regulations, and several Australian states have introduced civil measures directed at alcohol-related violence (see Mazerolle et al. 2012). These types of levers induce third parties, whether parents, schools, club-owners, or city administrators, to accept responsibility for reducing crime and disorder using civil or private law measures available to them.

As discussed above, increasingly, this type of approach is coupled with crime opportunity approaches that seek to identify and reduce facilitating environments for crime. As Eck and Eck (2012: 308) note, “rather than viewing crime as simply a matter between offenders and police, a place focus requires consideration of the morality of crime facilitation by third parties.” They suggest that such approaches can not only reduce crime, but also reduce the economic demands on police and policing, by sharing responsibility and costs. However, the extension of responsibility in this way, and the increased use of TPP and regulatory strategies, is not without problems and controversies, and the next section examines some of these.

Key Issues And Controversies

A threshold problem for TPP approaches is that, typically, police agencies are different to regulators and other third parties. Police do not view themselves as regulators, have different systems of training and organization, and a different culture. Sparrow (2012: 347) refers to this as the “divide” between police and regulators and attributes it to police unfamiliarity with the role of regulations, the distinctive police culture and domain, and the special risks they face. These differences can impede police from recognizing opportunities for TPP, and identifying regulators and legal levers that can be used to respond to particular crime problems. However, Sparrow (2012) also sees similarities between the shift in regulatory approach to risk-based strategies and the rise of POP and other innovative policing strategies which are similarly based on risk. He argues that POP has become single-dimensional, focused almost entirely on place-based interventions, and that increased use of a toolbox of regulatory strategies can expand the reach of innovative policing. But Sparrow (2012: 354) concedes a significant barrier to this occurring – how can police and regulators agree on who does what to deal with particular problems? Tilley (2012) goes further to ask who should pay for what and who should bear the costs of crime prevention efforts? This is particularly important when crime and its prevention is not the core business or concern of most third parties identified in the discussion above.

Tilley (2012) and Eck and Eck (2012) identify other potential problems with regulatory approaches to crime control and prevention. Spreading responsibility to non-offending third parties can create costs for the blameless, as well as those who facilitate crime, for example, when all bar owners are required to upgrade security in response to violence that occurs only at a few sites. Some strategies can be seen as too interventionist, such as the requirement for bars to use plastic glasses or serve low-alcohol drinks (Mazerolle et al. 2012). Such measures can add to the cost of doing business and favor those traders who cut corners rather than those doing the right thing.

Mazerolle and Ransley (2005) grouped the disadvantages of TPP as unintended side effects: the disproportionate allocation of policing and regulatory resources creating either over or under-policing; the displacement of crime problems; the intensification of crime and disorder in already disadvantaged areas; the co-option of regulatory resources and agendas away from their core concerns, such as public health and safety; and the dilution of criminal law protections and restraints. Additionally, there is a danger of regulatory creep that extends the acceptable limits of government intervention in the lives of citizens and businesses. Crawford (2009: 818–819), discussing the British antisocial behavior agenda, notes similar concerns including: the use of civil measures to evade criminal justice process; the introduction of new forms of hybrid liability that potentially lead to increased criminalization and net-widening; the reliance on subjective perceptions of risk in place of objective assessments of past conduct; the privileging of public anxieties, fears, and concerns as triggers for formal action (as in dispersal orders); the trends to preemption and individualized rather than generally applied controls; and the substitution or supplementation of judicial decision making by police and regulatory discretion.

Many of these concerns and issues remain unexamined in any systematic way, with the possible exception of the British antisocial behavior system. How TPP affects the communities in which it is practiced, whether it does so equitably and with accountability are empirical questions that remain largely unanswered. Also insufficiently examined is the effectiveness of TPP – does it work, and if so, when and in what forms? Mazerolle and Ransley (2005) conducted an extensive review of the evaluation literature, identifying 80 studies of TPP strategies. They found that business owners are the third parties most often targeted to share crime control or reduction responsibility, in dealing with problem bars, property crime in unsecured car parks, drunks and disorderly behavior in public places, and street prostitution. Other third parties included parents, schools, liquor licensing authorities, car manufacturers, local councils and public housing authorities. Overall, the use of these third parties and their legal levers was found to be an effective tactic for crime control.

Future Directions/Conclusion

The use of TPP is part of a shift to regulatory justice that positions police at the center of crime control and prevention networks. Most TPP currently occurs in an ad hoc and variable way, apart from the British antisocial behavior agenda. In times of financial constraint, TPP will become increasingly attractive to governments wanting to share costs with business and individuals, and with police agencies wanting to draw on the resources and expertise of other regulatory bodies.

While there is some evidence that TPP is effective (see Mazerolle and Ransley 2005; Eck and Eck 2012), there is a clear need for more research that encompasses at least the following:

• The full range of legal levers for TPP that already exist and the contexts in which they are available for use in TPP strategies
• The effectiveness and limits of various levers in various situations – what works, when, and why
• The full costs of financial burdens shifted to others through TPP, and the impact on their private or regulatory functions and concerns that results
• The extent to which TPP is used differentially in different communities – are disadvantaged neighborhoods over-targeted or neglected?
• The extent to which TPP is used differentially against different social and demographic groups – to their advantage or disadvantage
• The extent to which TPP has resulted in expanded criminalization, leading to new offenses and criminalizing conduct previously seen as disorder or nuisance
• The extent to which TPP has resulted in net widening, particularly by criminalizing noncompliance with regulatory and civil sanctions
• The extent to which TPP has diluted criminal justice processes, by criminalizing those against whom noncriminal justice processes have been used
• The impact of TPP on regulators and the extent to which their agenda has become coopted by crime reduction concerns

There seems little doubt that the trend to regulatory justice, and the accompanying rise of TPP strategies, is occurring. The challenge for police is to manage this trend in a thoughtful and useful way. The challenge for researchers is to study the features, utility, and costs of the trend and to suggest ways of better harnessing its advantages while minimizing the potential costs and disadvantages.

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