Conceptualizing the Private Police

The war on terrorism has brought new urgency to a subject that remains poorly understood: the private police. When debating whether to authorize the agency that eventually became the Transportation Security Administration, members of Congress for the first time in a generation were forced to pose a fundamental question about the very nature of policing: is it necessarily a governmental function? Incredibly, no one had asked before whether the thousands of private screeners conducting searches at airports ought to be public or private. Similarly, the prisoner abuse scandal at Abu Ghraib raised concerns about the propriety of employing privately contracted interrogators.

Can the federal government trust mercenaries to respect individual rights? What recourse do abused prisoners have when their tormentors are private sector employees? There is a question common to these two debates: what is the proper relationship between the state and policing? This Article lays out the conceptual framework needed to develop a response.