We are at a watershed moment in which growing national protest and public outcry over police injustice and brutality, especially against people of color, are animating new meanings of public safety and new proposals for structural police reforms. Traffic stops are the most frequent interaction between police and civilians today, and they are a persistent source of racial and economic injustice. Black and Latinx motorists in particular are disproportionately stopped, questioned, frisked, searched, cited, and arrested during traffic stops. Traffic enforcement is thus a common gateway for funneling overpoliced and marginalized communities into the criminal-justice system.
Piecemeal constitutional and statutory interventions are insufficient to address these systemic problems, which necessitate structural police reform and require a fundamental rethinking of the role of police in the traffic space. Traffic enforcement and policing are so intertwined today, however, that it is difficult to envision a world without police involvement in traffic regulation. Illustrating this point is one of the common critiques lodged against the growing movement to defund the police: “Who would enforce traffic laws?”
This Article offers a normative vision of our driving system that challenges the conventional wisdom that traffic enforcement is impossible without the police. It articulates a new legal framework that decouples traffic enforcement from police functions. This framework offers a starting point for renewed thinking about the basic structure of traffic enforcement, the role of police in traffic enforcement, and the ways in which law and policy can be used as tools to achieve fairness and equality in traffic enforcement. The Article provides a comprehensive analysis of the important benefits that nonpolice alternatives to traffic enforcement would create for public safety, policing, and criminal-law and criminal-justice reform, especially for people of color and other marginalized communities who are vulnerable to overpolicing and overcriminalization in today’s driving regime. The Article concludes by addressing potential objections to removing the police from traffic enforcement.
* Associate Professor of Law and Faculty Director of the Richard B. Atkinson LGBTQ Law and Policy Program, University of Arkansas School of Law, Fayetteville. I am thankful for helpful suggestions from Frank Baumgartner, Stephen Carter, Beth Colgan, Barry Friedman, Carol Goforth, Max Hess, Irene Oritseweyinmi Joe, Jason Mazzone, Ion Meyn, Alex Nunn, Stephen Rushin, Laurent Sacharoff, Annie Smith, and Beth Zilberman. I am also grateful for the feedback that I received at workshops at the University of Arkansas School of Law, UC Irvine School of Law, and the University of Illinois School of Law Police Reform Discussion Series. I am thankful for the valuable research assistance from Hannah Lundry. I also gratefully acknowledge the University of Arkansas School of Law library staff, and especially Cathy Chick, for their research assistance. Thank you to the editors and staff of the Stanford Law Review for their careful edits, insightful suggestions, and hard work.