Arguments

Can the Police Really Change?

The answer is, they must—or risk the full destruction of their credibility.

By Jonathan Blanks

Tagged criminal justicepoliceRacism

As American cities start to pick up the pieces from days of protests and unrest following the police killings of George Floyd and Breonna Taylor, policymakers and particularly police departments need to reflect on how their actions and policies have led to this moment. While it is clear that some individuals came to these protests intending to foment chaos, too many police departments shamed themselves and their profession with their actions and policy decisions. Moreover, officers’ widespread and reckless use of violence and noxious chemical agents has given the most anti-police voices the best evidence they could have hoped for that American police are irredeemable. For all the world to see, American police departments damaged the most valuable resource they possessed: their own legitimacy.

Reform vs. Abolitionism

Although there are a number of positions within and approaches to solving the problem of police abuse, there are two starting positions for changing American policing that currently dominate the public policy debate: In the simplest terms, they may be thought of as “police reform” and “police abolition.”

The police reform side includes policy empiricists, current and former officers, academics, and advocates who believe that policing needs to change to better serve both the community and the officers themselves. Opinions and solutions vary widely, ranging from departmental efficiency and effectiveness to reducing racial bias and improving officer mental health to procedural justiceand reducing the militarization of police forces.

The abolitionists, on the other hand, believe that policing is itself a problem and represents a gross misallocation of resources that punishes black people, other communities of color, and marginalized groups like sex workers. This side—which includes community organizers, activists, and other stakeholders—argues for divesting public money from the police and redirecting those funds toward community improvements that will make crime less likely and thus obviate the need for police. As one example, communities have organized “violence interrupters”—trusted community members who can intervene in disputes before they become deadly—and other community-based alternatives to reduce reliance on traditional emergency services because of the fear of violence and incarceration that often result from a 911 call.

While oversimplified for this writing, each of these schools of thought relies on a guiding assumption that is the polar opposite of the other: whether or not police, as an institution, are legitimate. To date, the reformers have dominated the public conversation, which is most evident in the report published by President Obama’s Task Force on 21st Century Policing. Police are a given, and thus the problems before policymakers pertain to making police better.

But the vehemence of these latest protests, and the overmilitarized and often out-of-control responses by officers across the country, undermined the assumption that these departments were institutions of order. By tear gassing and attacking nonviolent protestors, the police themselves created numerous opportunities for individuals to spread chaos and wanton destruction. The more police cracked down in these cities, predictably, the larger the protests got.

Forget, for the moment, the primary complaints of the protestors. From a tactical standpoint, the police responses in Minneapolis, New York City, and Fort Wayne, Indiana, among other locales, were entirely counterproductive—if one assumes civic peace was their goal, at any rate. But remembering that these protests specifically target unnecessary police violence, it is hard to comprehend what these departments’ leaders were thinking by escalating confrontations with peaceful protestors. As a result of the botched police response to these unobjectionable public complaints, protests too often gave way to destructive riots—causing untold sums in property damage—and the abolitionists’ rejection of police legitimacy gained traction like it never has before.

The Inadequacy of the Conservative Status Quo

Beyond the police themselves, who often feel put-upon and unappreciated despite their historically strong support and trust among the broader American public, there is a another perspective that doesn’t really fit into the reform discussion, other than to oppose it. The status quo conservatives have taken upon themselves the duty of defending policing writ large from the perceived slanders of the aggrieved minorities in the streets.

In his most recent piece in City Journal, the Manhattan Institute’s Rafael Mangual lamented:

For many, this prolonged civil unrest is shocking. It shouldn’t be. Police have been the targets of a poisonous, decades-long campaign to paint law enforcement as a violent cog in the machine of a racially oppressive criminal-justice system.

Rather than wrestle with the complaints of black protestors, Mangual and his MI colleague Heather Mac Donald have spent years justifying police behavior, defending  punitive carceral policies, and denying institutional racism, albeit with token acknowledgments that unrepresentative discrete instances may have gone too far.

But both Mangual and Mac Donald miss the forest for the trees. Even if one accepts that, somehow, millions of black Americans have been duped by talking heads into believing lies about how police affect their communities, it remains the responsibility of police departments to put black residents at ease. But far too often, police do the opposite, responding to protests of violence with more violence and refusing to significantly change their behavior to address the years of complaints by black community members.

And to be clear, researchers have been collecting and publishing reams of data showing that policing practices disproportionately target black people and abuse many innocent black people in particular, confirming the testimony of countless black Americans. No one has been duped, save perhaps the people who tell you everything is fine. Many thousands of people are taking to the street risking arrest, noxious gassing, beatings, and permanent maiming from police responses—not to mention increased risk of contracting COVID-19—to protest what they know to be true from their own experiences and social networks: The police are abusing them and those they love.

The Policing Legitimacy Crisis is Real and Getting Worse

The protests are a mass expression of police failure, and in particular, their failure to maintain their own legitimacy. Psychologist Tom Tyler has written extensively about the importance of legitimacy in law enforcement. Tyler convincingly shows that most people  obey laws not because they are afraid of being caught by police; they obey the laws because they believe in the legitimacy of the lawmaking machinery of society. Certainly, individuals push limits and break the law in discrete ways—violating speed limits, for example—but generally society operates on a common understanding of fairness even when people do not necessarily agree with every law.

Reformers like Yale law professor Tracey Meares and others have built upon Tyler’s research and focus on the need for police to incorporate legitimacy-building into police behavior. Specifically, the concept of “procedural justice” provides officers with a number of tools to present themselves and their actions to the public in a way that respects individual dignity and dispels the perception of unfairness.

In my Case Western Reserve Law Review article, “Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy,” I argued that common practices like employing investigatory stops as proactive policing are wholly incompatible with procedural justice. Such policies inherently erode police legitimacy because officers’ tactics—particularly deception and aggressive antagonistic interrogations—treat innocent people as if they are guilty of a crime when there is no legal reason to suspect crime is occurring.

As others have written and reported, many of the cities experiencing the most vehement demonstrations have long histories of illegitimate actions by their police. The fundamental complaint of abolitionists that police are corrosive to the well-being of their communities is being sustained by hundreds of instances of inexcusable police behavior documented in real time on televisions and social media feeds across the globe. Even those of us who have spent years examining police corruption and misconduct have been stunned by the defiant and violent behavior of officers who clearly know they are on camera.

Imminent Actions for Meaningful Police Reform

Though I’m sympathetic to the aims of the abolitionists, I concur with many of their immediate and longer-term strategies for finding non-carceral and non-enforcement methods to deal with the problems in their most policed neighborhoods, and I refuse to defend the actions of so many police departments and individual officers since these protests began, I nevertheless remain in the reform camp. The police are going to remain a reality for the foreseeable future, and thus reform is a necessary component of reducing counterproductive policing.

That said, the abolitionists bring the most necessary voice to the policy argument: that of the people who are most directly affected by decades of destructive and counterproductive police policy. Abolitionists are absolutely correct that the status quo must change, and the police must take their complaints seriously.

Although there are many more specific policy changes that would greatly improve American policing, the following three steps are essential to reorient police departments toward improving the communities they want to serve and protect.

The first step is for police to recognize that they often inflict harm onto communities, particularly black neighborhoods. Many officers and departments mean well, but their strategies too often involve abuse and even when they have adopted less antagonistic strategies like “community policing.” In times of stress—say, a spate of gun violence—they too often regress to the historical patterns of violence and arrest rather than relying on the relationships they may have built during periods of relative calm and reform. If this step is missing, no meaningful reform can come because the most basic complaint of the community has not been internalized by the police. If the police do not sincerely acknowledge their role in causing pain in the community, their efforts will be meaningless. Staging a photo op to take a knee with protestors is obviously not sufficient.

The next step is understanding how police harm manifests in the community well before any individual acts of police violence. The specifics will vary from jurisdiction to jurisdiction, but just one common example: any police unit or policy that relies upon stops, arrests, or seizures as measures of success ought to cease immediately and probably be abandoned altogether. It is entirely incongruent to have a macro policy of amicable community engagement—common among departments that have publicly embraced “reform”—while incentivizing certain units or individual officers to go find guns, drugs, or cash to prove their own value to or budget line within the department. (Particularly in states that have civil forfeiture laws, curbing budget-justifying policing tactics will be crucial as cities try to cope with pandemic-caused shortfalls among calls to “defund” police.) The tactics of these officers are often invasive and subvert constitutional rights of citizens—think New York’s Stop and Frisk—and the arrests they create don’t meaningfully improve the quality of life for the community.

Finally, and probably the most difficult current task for any police department acting in good faith, is to hold its officers accountable for misdeeds. Beyond the notorious Blue Wall of Silence culture that prevents officers from going public with complaints against their brothers in blue, there are myriad systemic obstacles to police accountability. Legal doctrines that are too permissive of police violence, union contract provisions that protect the jobs of officers who should be removed from the force, and state laws that hide the identities of problem officers from public scrutiny prevent even the most well-meaning police chiefs from ridding their departments of the worst officers. Unlike the previous two steps that are policy decisions that police departments should make on their own, responsive police leadership will need outside help to tear down these entrenched protections for bad cops.

At the same time, reformers cannot look upon the rampant police lawlessness during the protests and dismiss the conclusion that some police departments are beyond “reform.” How can communities possibly trust officers who applaud colleagues after they’ve been charged for blatantly abusing their power on duty? So many officers used unprovoked violence against protestors, legal observers, and media and destroyed private property with such impunity—often under directive—that the culture of some departments is irredeemable. There are more than 18,000 police departments in the United States, and some should probably be disbanded and reconstituted with new officers and leadership. Such a move is drastic, but not unprecedented.

Camden, New Jersey disbanded its police force in 2012. In the words of Scott Thomson, the now-former Camden chief, leadership was able to “build [departmental] culture as opposed to changing it.” Undoubtedly, Camden still has serious violent crime problems because decades of government abuse and neglect are not easily fixed, but murders and violent crime have declined precipitously since the department was overhauled. While replacing police with different police is not what abolitionists want, the city is safer than it was, and it managed to hold protests without the destruction and police abuse that rocked so many U.S. cities.

Conclusion

As the continuing protests and demonstrations remind us, police departments have been resisting serious reform for too long. Some departments have made positive changes, with Camden being perhaps the most sweeping of those. But almost all departments have nevertheless maintained the policies that inflict harm on communities—and specifically black communities—while protecting the officers who commit the most egregious acts against the public.

The response to these protests should not be an overwhelming use of force: Not only is it ineffective, it proves the protestors’ point and makes their case all the stronger. A growing number of Americans no longer believe that the police can serve a force for good in society, and the institutions responsible for that belief are the police agencies themselves. They haven’t been honest with themselves or their officers about what they are doing to the people they are supposed to be serving and protecting. And there is no getting around their utter failure to earn and maintain the trust of many black Americans.

There are steps police departments and local governments can take to reorient their actions toward the betterment of the communities they serve. But those steps don’t involve tear gas, riot gear, or rubber bullets.

And though “abolition” is viewed as a misnomer or a pipe-dream to many inside and outside of reform circles, the concessions and law changes in Minneapolis and the New York State legislature would not be happening without the intellectual framework of abolitionists like Mariame Kaba and the work of organizers who have been working to change their communities for decades. As a reformer, I admit to fearing the unintended consequences of “defunding” as it may be applied in some jurisdictions during a pandemic-driven fiscal crisis, but the abolitionists are necessary to making communities safer in the long term.

The police need to humble themselves enough to admit and internalize their failures, to curtail their most abusive practices, and work with reformers, abolitionists, and the most affected communities to tear down the obstacles to meaningful structural change. The alternative is the full destruction of police credibility, and their many indefensible actions during these protests continue to sow the seeds of that catastrophe.

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Jonathan Blanks is a visiting fellow in criminal justice at the Foundation for Research in Equal Opportunity.

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