Fixing American Policing
Adam J. McKee
CHAPTER 1: Is Policing Broken?
This work is licensed under an Open Educational Resource-Quality Master Source (OER-QMS) License.
Ultimately, we must conclude that the current (traditional) policing paradigm is broken. Policing in the United States is under fire as being a racist, totalitarian institution bent on preserving the status quo at the expense of the civil liberties and lives of the masses. As unfair as this assertion may seem to those of us closest to policing, it is foolhardy to ignore the fact that this is a common (perhaps dominant) perception. In a democratic republic, the opinions of the electorate are the essential reality that politicians face.
The term paradigm is often used to talk about how we think about something. Academics will recognize the idea of scientific paradigms that many were forced to read about in graduate school. When we refer to policing paradigms, we mean how we perceive policing in America to be structured and how it functions. One of the most salient features of American policing, and one that makes reform very, very difficult, is the fact that policing is decentralized. Recall from high school civics class that America is governed under a system called federalism. This means that we have two levels of government that share some powers and do not share others. States cannot raise armies or print money, for example.
The federal government does have a criminal justice system, but the agents that work within that system rarely deal with street-level problems within our communities. That is, they are generally not considered to be “police.” Most criminal laws are made by states. Cities and counties can make some laws, usually called ordinances. Ordinances generally aren’t very serious, and only result in a fine. We usually gloss over local governments in civics classes, so it may seem odd to think of federalism consisting of three levels of government. State lawmakers keep the power to put people in prison for themselves. The enforcement of these state laws usually falls on local law enforcement agencies, which are usually county sheriff’s departments or city police departments.
To sum up, the way criminal justice works in America is that state governments make criminal laws that local officers enforce. If this sounds needlessly complicated, that’s because it is. The reason we do it this way is that “we always have.” Early colonists set up the criminal justice system in what would later become the United States based on what they knew from England. That system revolved around a country sheriff for many hundreds of years. Urban “police” are a relatively modern invention that arose as population densities in urban areas began to grow extremely large.
The early system of policing in England wasn’t designed to protect the interests of the people. Rather, it was designed to protect the interest of the King. Many have characterized this system as the poor being paid to oppress other poor people in the interest of rich people. Recall the Robin Hood legend for a basic (if fantastic) account of how this system was viewed by the common folk.
When America became a republic, we simply replaced references to the King and the “Crown” with “the People.” We kept the structure and function of the criminal justice system. It is important to note that “the People” wasn’t as general as we think of it today. Originally, it essentially meant rich (landowning) white men. Those that weren’t white, male, and landowners would have to fight for equal footing for the next two hundred years. Many argue that the proximate cause of our current social divide is that many still have not achieved equal footing outside of the paper world of legal treatises.
Over recent years, support for law enforcement has declined dramatically and is still in a downward spiral. Incidents of abuse, misconduct, and excessive force throughout our country have contributed greatly to this demise. While some new programs have been employed in police work, none have adequately addressed the true problem – a lack of citizen participation in the manner in which their communities are made safer. As society has become more multicultural, too few leaders at the local level have had the vision for this new era. Police and community leaders continue to work harder and harder within structures that produce diminishing returns. -Jones (1996)
The date that the above quote was written (1996) provides some important insight into our currents state of affairs. Why are violence and looting part of the protests this time? The simplest answer is that people have been peaceably protesting for decades, and no real change has occurred. Police reforms have been proposed, discussed, and lip service has been paid to them, but very few enduring changes have been made in the way we police our cities. People feel marginalized and betrayed by political leaders that promised radical change but only delivered window dressings.
The Role of Police in Society
It may be an unpopular sentiment to express at the current time, but many aspects of the police culture are laudable and should be retained for the benefit of officers and citizens alike. It is important to remember that many rank-and-file police officers decided to become public servants for the right reasons. It is very difficult to do the right things when you are new to the job and are being told that the wrong thing is the right thing by your superiors. Real positive change can only occur when the good people that take on the role of a police officer in the spirit of public service know precisely what that role is in the first place.
Scholars have long written about the “police subculture.” It is true that police tend to have a “macho” culture similar to that of the military. This varies from place to place, but all of the research suggests that machismo is a defining factor of policing. The self-image of officers as relentless warriors fighting crime is too narrow and must be greatly expanded. Simply put, “Catching bad guys” at all costs is the underlying belief about the role of police held by a majority of officers. This must change.
When contemporary policing is viewed through the lens of cultural transformation theory, it becomes apparent that policing agencies must adapt to increasingly diverse communities by choosing a model that carefully weighs legitimate police goals against the high social costs of using force. Currently, the police belief system dictates that violence must often be countered with violence. Force is a part of the police mandate to protect and serve.
However, the current response is often extreme, and force is too frequently relied upon. Based on cultural transformation theory, we suggest that the pinnacle of these police goals and objectives is to maintain a community where community members and their property are safe and secure by design. A corollary of this is that citizens feel safe and secure, in addition to the reality of being that way. Eliminating the fear of crime is a traditional goal of community policing, and should be retained.
This arrangement of priorities seems odd to those steeped in the traditional model of policing; the enforcement of criminal codes (i.e., “law enforcement”) has always been the primary focus of policing in the United States. We suggest that the new police culture should value the authority to enforce criminal codes using traditional legalistic (code-based) approaches (such as making arrests and issuing citations) as merely one small set of tools among many, and that violence should be used as a last resort to ensure the public safety, security, and welfare. Like the limiting term “warrior,” the term “law enforcement” in the police lexicon should also be challenged.
Referring to policing as “law enforcement” is extremely limiting; internalizing that “crime fighter” mentality is a major facet of the police culture that must be dismantled. Defining a police officer as a “law enforcement officer” has the same lack of logic and breadth as defining a parent as a “child disciplinarian.” Code enforcement may be integral to officers’ professional duties, but (we argue) it is not the defining characteristic. Indeed, we can point to the progressive naming of the Irish police, An Garda Síochána (literally, “Guardian of the Peace”) as an example of a lexicon that reflects the defining values that we suggest.
There is no doubt that outright racism exists among some white Americans. Most white Americans are not overtly racists; they are simply so far removed from the plight of America’s people of color that they often express an ignorant view of how our society works. Rural whites, suburban whites, and wealthy urban whites simply do not interact with people of color, at least not in a meaningful way with regard to these issues. An excellent example of this is when well-meaning white people respond to the “Black Lives Matter” movement with the all too common “all lives matter” slogan.
As Ralph Waldo Emmerson said,
“People only see what they are prepared to see.”
When officers are sworn to uphold the constitution and protect the public stand by and do nothing as other officers violated the civil rights of people of color, the situation is unacceptable. When others are complicit, such as when Minnesota officers held back protesters while George Floyd was murdered, the situation is infuriating.
If you peruse the recent social media posts of angry black people, you will quickly identify a theme that Nothing Has Changed. It is essential to not confuse legislative progress with actual change at a practical, societal level. A perfect example of this is the difference in time between the passage of the Fourteenth Amendment in the aftermath of the Civil War and the invocation of the Amendment by the Supreme Court of the United States (SCOTUS). We didn’t see widespread adoption of the spirit of the Amendment until the Warren Court era of the 1960s. Even though SCOTUS has handed down many, many cases on civil rights issues, officers on the street feel free to ignore procedural laws. In practice, the Fourteenth Amendment is not applied on America’s streets for nearly a century and a half after it was ratified. In other words, civil rights laws exist to protect the liberties of all people, but those laws are without teeth. Little can be done to redress grievances against officers that violate them.
Take, for example, the all too familiar scene of a young black may spread out over the hood of a patrol car. Officers detain this person and then proceed to remove all of his property from his pockets and place them on the hood of the car. One of the officers opens a pack of cigarettes and finds a “joint.” The young man is arrested for the possession of marijuana. Legally, officers need a reasonable suspicion (a legal term of art specifying a certain amount of evidence that laws are being broken) that the person is or is about to commit a crime. Often, the initial stop is not legally justifiable. Reasonable suspicion is a low standard of evidence, so officers feel confident that they can make the argument.
SCOTUS has authorized a pat-down search for weapons when reasonable suspicion does exist, known as a Terry stop (after the landmark Terry v. Ohio decision). In the Fourth Amendment law of search and seizure, the pack of cigarettes would be considered a “container.” Since the container can’t reasonably contain a weapon that would endanger officers, it cannot be opened without probable cause. Probable cause is a higher standard of evidence that exceeds the reasonable suspicion standard. Given the above hypothetical example, the search of the cigarette pack is illegal, and the fruits of the search—the marijuana—can not be used against the young man in court. No law degree is required to understand that you can’t successfully prosecute someone for possessing something that you can’t talk about in court. The legal idea that illegally obtained evidence cannot be used in court is called the exclusionary rule. The express purpose of the exclusionary rule is to punish police for illegal conduct.
Theoretically, our hypothetical young man has several options for redress. He can file a complaint with the police department. This is not a likely outcome because most young men of color believe that the police are a single, unified enemy that has no desire to help them. He could hire an attorney and fight the case in court, but the cost of the lawyer would far exceed the fine. He could file a civil rights lawsuit, but such a “small” intrusion into his liberties would not likely result in damages sufficient to cover legal fees. His most cost-effective option is to simply plead nolo contendere and pay the fine. As a legal matter, there are several options for redress. As a practical matter, there are none.
Were this scenario to happen to me, I would be in the Chief’s office first thing Monday morning. I would demand that the officer be censured and threaten to file a 1983 Suit in federal court if I did not receive an apology. A 1983 Suit is a type of civil lawsuit that allows citizens to sue government employees in federal court for violations of civil rights. I wouldn’t stand to receive much in damages (money won in a civil lawsuit), but I would pursue it based on the principle of the thing. In other words, I would spend a lot of money because I’m pissed off at how I was treated and want a federal judge to say I was right.
I would also name the chief and the department in the suit, which you can do if they willfully failed to train the officer properly. It would also cost the police department a lot of money because they would have to take the officer off the streets to appear in federal court, and they’d have to pay for a lawyer. Often, the phrase “1983 suit” works as a talisman to get what you want from law enforcement managers. There is a phrase that describes this attitude—it’s called white privilege.
The Radical New Call
The Black Lives Matter movement is perhaps the most closely monitored civil rights organization in the United States today. According to the organization’s website, there is a call to “defund the police.”
We call for a national defunding of police. We demand investment in our communities and the resources to ensure Black people not only survive, but thrive. If you’re with us, add your name to the petition right now and help us spread the word.
In the public sphere, a call to “defund” police is a call to abolish the police. No matter how community-minded officers may be, they will not work for free. The response of many white people is to view it from a coolly objective lens, “That’s stupid. Society has to have police. Get back to me when you have something reasonable to say.” If positive change is to be made, we must dig deeper and ask what would cause people to take such a radical, potentially destructive position. It is a sad commentary on the state of American civil affairs when a large swath of our citizens believe that the very existence of the police is more dangerous to them than not having police at all.
How We View the Police
America’s police forces are in a public opinion crisis, and the breadth of those expressing a loathing for police officers is expanding not only in communities of color but into the broader society. As community policing advocates have preached for years, the simplest way to improve individual’s opinions of the police is to create positive contacts with citizens. When police participate in community meetings, provide a prosocial, visible presence in neighborhoods, and talk to citizens in a nonthreatening way, public perceptions of the police improve. These “informal contacts” have been scientifically (i.e., shown by academic studies) shown to improve police job approval ratings even in poor, disorderly, crime-ridden, and dangerous neighborhoods.
Informal contacts have also been shown to improve the demeanor of citizens when formal contacts are made, such as when a person is arrested or questioned. In research that asked arrested persons to evaluate the police, those citizens that had informal contact with police in the recent past rated them more highly than those that had not. It was also revealed that race and ethnicity weren’t as important (there was a smaller effect size) than neighborhood characteristics and positive personal contacts when predicting people’s satisfaction with the police. This line of research also showed, somewhat counterintuitively, that the media had little influence on personal perceptions of the police. It seems that people’s relationship with police officers is personal, and forms at a neighborhood level.
Public perceptions of crime and disorder within neighborhoods do have a significant impact on perceptions of the police. In disorderly neighborhoods, race doesn’t play a very big role in determining police performance. This seems logical. People that live in bad neighborhoods conclude that the police are doing a bad job. Put another way, people that live in bad neighborhoods—no matter what their race—tend not to like the police very much. Living in a bad neighborhood and not liking the police is also strongly correlated to being fearful.
When we hear stories of opioid addicts stealing prescription medication from family members, we are taken aback by the depravity of it. For most people, the idea that someone would victimize a family member is far worse than the same crime committed against a stranger. The idea that we have a stronger bond—and thus more respect for—family, friends, and neighbors relate to the idea of social cohesion. When we bond with individuals or groups, we tend to care about them (if you don’t, then we label you a sociopath).
Humans in groups tend to form informal codes of behavior and expectations about what is acceptable and what is not acceptable. When neighborhoods experience high levels of neighborhood cohesion and informal social controls, they tend to approve of both police demeanor and job performance. The most widely accepted theory as to why this is so is that people in cohesive neighborhoods have more positive contact with police than negative ones. Another important reason is that residents of neighborhoods like these tend to see themselves as sharing responsibility for the peace and safety of the neighborhood.
Among residents of high-crime neighborhoods, those residents with only informal (positive) contact with police officers tended to hold the highest esteem for them. When researchers ask urban residents about these things, they tend to find that most people don’t recognize the officers that work in their neighborhoods. In contrast, those residents who had only formal contact with police officers liked them least. Those that had both formal and informal contact tended to be in the middle of the spectrum. Another factor that lowers opinions about how good of a job the police are doing is being the victim of a crime, especially when the person is the victim of a violent crime.
Police researchers have noted that whites tend to have a much higher regard for police than do people of color. Blacks are the least likely to approve of police job performance and the demeanor of police officers. Some have said that this is because the police tend to treat black people poorly when compared with whites. In other words, minorities don’t like the police because the police mistreat them. This simple view doesn’t tell the whole story, however. When researchers looked at the quality of life in neighborhoods, the racial differences in how people viewed the police were much less pronounced.
This may help explain why the criminal justice system is racist. It is possible that structural economic factors cause more black people per capita to live in poverty, and poor people are forced to live in poor neighborhoods. Neighborhood poverty leads to transience, low social cohesion, and low informal social control. These factors suggest that disproportionate minority contact may, at least in part, be due to biased economic factors. Without denying the fact that some police officers are overtly racist, there are good reasons to believe that structural racism is a very real problem in many urban neighborhoods.
In this book, I will spend considerable time discussing why the “traditional model” of policing is problematic and why a “new community policing” should replace it. There are other styles of policing that I will not delve into very deeply, but they are worth mentioning so that we have an idea of what these things mean when we encounter the names.
Intelligence-Led Policing is an idea that originated with British police forces. The idea is to use crime intelligence data better to direct police resources and investigations. The key to this policing paradigm is the collection and analysis of data about crime. This approach is very compatible with community policing, especially the problem-solving component. American police forces, however, have largely ignored the usefulness of criminal intelligence in their work. This is something very useful that we can potentially learn from the British.
Broken Windows Policing is named after a theoretical perspective developed by police scholar James Q. Wilson and his colleague George Kelling. The theory holds that unaddressed signs of minor disorder can enter into a “spiral of decay” and result in more serious crimes down the road. The theory had a huge impact on American policing during the 1990s when the federal government was funding massive community policing pushes. The result was a focus, especially among urban police, on minor forms of disorder that they previously paid little attention to. Several criminologists have taken issue with the theory’s linkage between disorder and serious crime. We know that there is a pretty strong link between community disorder and fear of crime, so there is nothing wrong with seeking to reduce disorder in communities. Some departments, however, have perverted the theory and use it as a high-sounding justification for harassing minorities and ignoring civil rights. For that reason, the theory has developed a bad name through no fault of its own.
Zero-tolerance Policing refers to a police policy of strictly enforcing laws that might otherwise not have been enforced. Unfortunately, zero-tolerance has been linked to Broken Windows and has diminished Wilson and Kelling’s theory. I believe zero-tolerance has been widely used to thinly veil racist policing practices and destroy the relationships between police and communities of color in many areas. Zero tolerance is antithetical to community policing and is only advocated by those too cowardly or unintelligent to make hard decisions. “Full enforcement” is a myth, yet zero tolerance suggests it can be achieved. Police have great discretion and should use it ethically, efficaciously, and wisely. As I will argue later, community policing cannot work without broad latitude on how officers in the field deal with problems within communities.
CompStat (shorthand for “computerized statistics”) is a police management tool that originated in the New York City Police Department in the 1990s. The system uses statistics to identify crime patterns and is also used to increase mid-level police managers’ accountability for reducing crime in their areas of responsibility. If viewed as one tool in a complete set of tools available to police departments to accomplish all of their objectives, then CompStat is a great tool to help officers work on crime problems. The fear among community policing advocates is that CompStat becomes the end-all and be-all of the department, and the focus shifts back toward a traditional crime fighter paradigm. In other words, it forces officers into a corner where they use short-term solutions to long-term problems to move the weekly CompStat numbers. Simply put, CompStat is a potentially useful tool, but it is a mistake to think of it as a style of policing.
Thus I begin this little book with what was once a bold assertion that policing in America is broken and have hinted that a new paradigm of community policing is the solution. It is no longer so bold since every media outlet in the world is condemning police brutality and echoing the angry calls for police reform. Let us, then, carefully consider what we, as a nation, want this new paradigm of policing to look like.