Black Clergy United March for Justice on June 13, 2020 in Tampa, Florida. Photo Credit: Shutterstock.com
Introduction: Closing the Gap between Police and the Communities They Serve
Alongside the military as one of only two agents of society granted the authority to employ lethal force, law enforcement holds a privileged position in the social contract between the public and the government.[i] Although some of the recent protests and calls for action following the latest deaths of Black Americans at the hand of police officers seem directed at the United States federal government, the focus of reform efforts should be pinpointed on the state and local levels. While many assume the federal government pulls the levers of policing powers, control of around 18,000 municipal, state, and tribal law enforcement agencies stems from the local level.[ii] The decentralized nature of policing systems creates at least two significant challenges for reforms. First, decentralization makes it difficult to focus on systemic issues of policing, rather than the individual behavior of officers. Ronald L. Davis who served as the Director of the United States Department of Justice Office of Community Oriented Policing Services in the Obama Administration writes, “There is no question that rank-and-file officers must be held accountable for their actions. However, if the systems in which they operate are flawed, even good officers can have bad outcomes.”[iii] This systematic approach shifts the focus of emotional backlash against the actions of individual police to the crux of a much deeper problem: systematically inequitable policing systems.[iv] Second, decentralization has contributed to the militarization of law enforcement further decreasing communities’ trust in police officers who no longer resemble the communities in which they work. Reflecting on the words of Sir Robert Peel, the founder of modern law enforcement, the responsibility of the community served by law enforcement must also factor into the equation as he explains, “The police are the public and the public are the police; the police being only members of the public who are paid to give full time attention to duties which are incumbent on every citizen in the interests of community welfare and existence.”[v] Against this backdrop, the militarization of the police has widened the gap between law enforcement and the communities they serve. While decentralized policing systems certainly pose challenges to systemic reform, local approaches to reform capitalize on the deeply interconnected relationship between the police and the public to deliver effective localized solutions.
Historical Background on Police and Police Reform in the United States
Since their origin, police departments have been connected to issues of local politics, economics, and race. The first organized police force in the United States was founded in Boston in 1838 when merchants argued for public funding in the name of the “collective good.”[vi] As policing institutions spread to the South later in the 19th century, police were used to coral runaway slaves and prevent slave revolts.[vii] Local economics and politics resulted in police precincts aligning with political wards, politicizing the application of law and order.[viii] Familiar issues being protested today, such as police’s excessive use of force when attempting to make arrests, emerged as a polarizing issue as early as the 1830s.[ix] As this problem propagated during Prohibition, President Herbert Hoover appointed the Wickersham Commission in 1929 to investigate criminal law enforcement.[x] The resulting review recommended a transfer of criminal prosecution from local jurisdiction to the state level in an attempt to remove power from local corruption, but little action ensued.[xi] Other commissions investigating corruption, racism, the use of excessive force, and fraud among other offenses have produced similarly disappointing actionable results.[xii]
The 1950s introduced an effort to professionalize law enforcement by restructuring police departments and centralizing authority.[xiii] American police officer and scholar O.W. Wilson headed the professionalism movement, advocating for centralization of the police force and lauding military discipline in his book Police Administration.[xiv] These recommendations, however, ultimately served to widen the gap between police departments and the public they served as increasingly isolated police bureaucracies emphasized efficiency at the expense of losing touch with their communities.[xv] Wilson’s insistence on military discipline did not fit a police force intended to serve its community in contrast to a military force charged with the management of violence.
The police responded to charges of police brutality, corruption, and other misconduct with a unionization campaign that led to the unionization of nearly every metropolitan police department by the early 1970s.[xvi] Police unions became the scapegoat for municipal social and economic problems in the 1970s and 1980s, bringing about another reorganization of police departments.[xvii] These reforms included reducing the size of police forces, increasing their division of labor, implementing technology to control police administrators, and employing civilians to take on some traditional police tasks.[xviii]
The professional image of the police suffered due to their suppression of the Civil Rights movement, use of force in handling large demonstrations against the Vietnam War, and the string of political assassinations that occurred during the 1960s and 1970s.[xix] Instead of providing a source for de-escalating tensions, the police became identified with flaring tensions.[xx] In the 1980s, the police departments sought to improve their image and efficiency through community policing, which emphasized a close working relationship with the community.[xxi] Dr. Gary Potter characterizes the challenges facing contemporary police reform efforts, writing:
Community policing is the latest iteration in efforts to (1) improve relations between the police and the community; (2) decentralize the police [by tailoring their policies to the community]; and, (3) in response to the overwhelming body of scholarly literature which finds that the police have virtually no impact on crime, no matter their emphasis or role, provide a means to make citizens feel more comfortable about what has been a seemingly insoluable [sic] American dilemma.[xxii]
Ultimately, the role of police in the United States has identified more with the American political-economy rather than crime or crime control.[xxiii]
Law Enforcement Statistics and the Policies That Fuel Them
In the international context, the rate of police killings in the United States far exceeds those of other wealthy and developed countries such as Canada, Australia, and countries in Western Europe.[xxiv] American law enforcement registered 1,099 civilian deaths in 2019, which comes to 33.5 civilian deaths per 10 million people.[xxv] Canada is the next highest wealthy and developed country, registering only 36 civilian deaths in 2017, representing 9.8 civilian deaths per 10 million people.[xxvi] Polling by the Pew Research Center exhibits a stark divide in police treatment based on race.[xxvii] According to a 2019 Pew Research Center survey, the majority of both Black (84%) and white (63%) Americans responded that the police treat Black people less fairly than whites.[xxviii] In the same survey, Black adults are about five times as likely as white adults to respond that they attribute being unfairly stopped by police to their race or ethnicity, further demonstrating police bias.[xxix] When surveying police officers on their views of fatal encounters between Black people and police, a 2016 survey showed that 57% of Black police officers view fatal incidents as evidence of a broader problem, whereas 72% of white officers and 72% of Hispanic officers viewed such encounters as isolated incidents.[xxx] When it comes to training expectations, surprisingly, the average police officer must complete 672 hours of basic training, which comes to only half of the average time it takes for a person to become a certified barber.[xxxi] Statistics like this fuel the cries for law enforcement reform in the United States.
Police unions present an obstacle to reform, protecting accused police officers and leading the narrative that policymakers who attempt to change law enforcement are soft on crime.[xxxii] High membership rates provide ample resources for police unions to wage campaigns and take legal action to defend officers.[xxxiii] Showcasing these resources, one New York City police union spent over $1 million on state and local races since 2014.[xxxiv] This kind of investment in state and local elections demonstrates the importance of these elections for reform efforts. In order to facilitate local reform, citizens need to recognize the influence wielded by local officials and respond with increased civic engagement.
Qualified immunity provides another crutch to police protection.[xxxv] The legal doctrine of qualified immunity protects officers in the case that they are accused of violating others’ constitutional rights.[xxxvi] Protection under qualified immunity defends officers from further litigation if relatives or victims seek to sue.[xxxvii] The case of Baxter v. Bracey demonstrates the application of qualified immunity.[xxxviii] In Tennessee in 2014, the police responded to a call citing burglary and, using a canine unit, found Alexander Baxter to be the burglar.[xxxix] The police apprehended Baxter, but, following his surrender, unleashed a police dog who then bit Baxter.[xl] Baxter sued the police for excessive force, but the Sixth Circuit Court of Appeals reversed the decision of the district court that denied claims of qualified immunity “because the officers’ conduct, whether constitutional, did not violate any clearly established right.”[xli] The debate over unique job requirements for police officers, judgement when using force, and holding police officers accountable continues to level scrutiny on qualified immunity and the protection it provides.
The Militarization of Law Enforcement
In a move that might bear resemblance to an oft-used negotiation tactic used by President Trump, protest movements have called out to “defund the police”, perhaps using an extreme demand in an effort to meet somewhere in the middle.[xlii] Much of this ire centers on the 1033 program, which provides military equipment to local law enforcement agencies.[xliii] Originating in the post-Cold War environment of 1990, the 1033 program transferred surplus military equipment to local law enforcement agencies to bolster their war on drugs.[xliv] Similar to how reform efforts in the 1950s advocated for a police force guided by military discipline, the 1033 program evidences a policy disconnect. While the program puts surplus military equipment to use, it neglects the optics of the operation, isolating the police force from the community it serves. Since the civil unrest in Ferguson, Missouri in 2014, more than $850 million worth of equipment has flowed to local law enforcement agencies through the 1033 program.[xlv] In August of 2017, President Trump removed restrictions on the 1033 program put in place by President Obama by executive order.[xlvi] A bipartisan effort between Senator Brian Schatz and Senator Rand Paul attempted to place limitations on the 1033 program by adding an amendment to the National Defense Authorization Act, but the effort failed.[xlvii] The program follows a pattern of ebbing and flowing with the level of fear of domestic threats.
Action in the Wake of Public Outcry
Partisan politics have slowed the federal response to law enforcement reform as evidenced by a Senate vote of 55-45 falling short of the 60 votes needed to begin debate on the police reform bill endorsed by Senate Republican Tim Scott.[xlviii] Although polarization and the upcoming Presidential election in November have, at times, paralyzed the federal government, states are taking action. Reform bills are receiving attention in state legislatures, focusing on police oversight, regulating the use of force, banning chokeholds, establishing public databases of traffic stops, and augmenting investigations of misconduct with an independent agency.[xlix] The police reform bill passed by the Iowa state legislature illustrates the impact a state can have on reform by granting the state attorney general power to prosecute police officers, banning chokeholds, and restricting police departments from hiring officers with records of misconduct.[l]
Local jurisdictions have pursued similar measures in strengthening transparency and accountability, regulating policing practices, and prioritizing community-based solutions.[li] Governors, Mayors, Attorneys General, City Councils, Police Departments, and School Boards across the United States have all taken action to implement police reform.[lii] Lasting changes to public safety and improvement to the relationship between police and the public thrive on this kind of engagement. The cry for reform has been heard, but in order to solidify these changes and enforce the wave of reform being elicited, citizens must hold state and local representatives accountable for the influence they wield.
[ii] Ronald L. Davis, “Police Reform vs. Policing Reform,” COPS, August 2016, Accessed June 25, 2020, https://cops.usdoj.gov/html/dispatch/08-2016/police_reform.asp.
[ix] Gary Potter, “The History of Policing in the United States,” Eastern Kentucky University, Police Studies Online, July 9, 2013, Accessed June 25, 2020, https://plsonline.eku.edu/insidelook/history-policing-united-states-part-1.
[x] Olivia B. Waxman, “How the U.S. Got Its Police Force,” Time Magazine.
[xi] Ronald F. Wright, The Wickersham Commission and Local Control of Criminal Prosecution, 96 Marq. L. Rev. 1199 (2013), http://scholarship.law.marquette.edu/mulr/vol96/iss4/11.
[xxiv] Alexi Jones and Wendy Sawyer, “Not just “a few bad apples”: U.S. police kill civilians at much higher rates than other countries,” Prison Policy Initiative, June 5, 2020, Accessed June 25, 2020, https://www.prisonpolicy.org/blog/2020/06/05/policekillings/.
[xxvii] Drew Desilver, Michael Lipka, and Dalia Fahmy, “10 Things We Know About Race and Policing in the United States,” Pew Research Center, June 3, 2020, Accessed July 28, 2020, https://www.pewresearch.org/fact-tank/2020/06/03/10-things-we-know-about-race-and-policing-in-the-u-s/.
[xxxi] Kelly McLaughlin, “The average US police department requires fewer hours of training than what it takes to become a barber or a plumber,” Insider, June 12, 2020, Accessed June 25, 2020, https://www.insider.com/some-police-academies-require-fewer-hours-of-training-plumbing-2020-6#:~:text=Police%20departments%20on%20average%20require,for%20Criminal%20Justice%20Training%20Reform.
[xxxii] Noam Scheiber, Farah Stockman, and J. David Goodman, “How Police Unions Became Such Powerful Opponents to Reform Efforts,” The New York Times, June 6, 2020, Accessed June 25, 2020, https://www.nytimes.com/2020/06/06/us/police-unions-minneapolis-kroll.html?auth=login-email&login=email.
[xxxv] Hailey Fuchs, “Qualified Immunity Protection for Police Emerges as Flash Point Amid Protests,” New York Times, June 23, 2020, Accessed June 25, 2020, https://www.nytimes.com/2020/06/23/us/politics/qualified-immunity.html.
[xli] Baxter v. Bracey, Case No. 18-5102, (Tennessee 2018), https://www.opn.ca6.uscourts.gov/opinions.pdf/18a0566n-06.pdf.
[xlii] James Hohmann, “The Daily 202: ‘Demilitarize the police could be a more fruitful rallying cry for reformers than ‘defunding’,” Washington Post, June 9, 2020, Accessed June 25, 2020, https://www.washingtonpost.com/news/powerpost/paloma/daily-202/2020/06/09/daily-202-demilitarizing-the-police-could-be-a-more-fruitful-rallying-cry-for-reformers-than-defunding/5edf0e54602ff12947e87c9e/.
[xlviii] Claudia Grisales, Kelsey Snell, and Susan Davis, “Senate Democrats Block GOP Reform Bill,” NPR, June 24, 2020, Accessed June 25, 2020, https://www.npr.org/2020/06/24/882530458/democrats-vow-to-block-gop-police-reform-bill-unless-republicans-agree-to-negoti.
[xlix] Weihua Li and Humera Lodhi, “Which States Are Taking on Police Reform After George Floyd?,” The Marshall Project, June 18, 2020, Accessed July 28, 2020, https://www.themarshallproject.org/2020/06/18/which-states-are-taking-on-police-reform-after-george-floyd.
[li] Kenny Lo, “Assessing the State of Police Reform,” Center for American Progress, July 16, 2020, Accessed July 28, 2020, https://www.americanprogress.org/issues/criminal-justice/news/2020/07/16/487721/assessing-state-police-reform/.