These well-meaning changes will
simply reproduce racial inequality.
Alex S. Vitale
March 6, 2015
President Obama’s Task Force on
21st Century Policing has released a long list of reforms to American policing,
some of which, including independent police prosecutions and dramatically
scaling back the role of police in schools, are true advancements. However,
there are also major pitfalls in the report’s reliance on procedural rather
than substantive justice.
Liberal police reforms of the
1960s, including the Katzenback Commission on Law Enforcement and the
Administration of Justice and Johnson’s Safe Streets Act, were intended to
achieve similar ends of improving police community relations and reducing
police brutality through police professionalization and a host of procedural
reforms. The result of this process, however, was the massive expansion of
policing in the form of SWAT teams, the War on Drugs and, ultimately, mass
incarceration.
Princeton political scientist
Naomi Murakawa, in her book The First Civil Right: How Liberals Built Prison
America, details how the liberal assessment of the problems of race failed to
take seriously the role of racial domination in the structuring of the criminal-justice
system. Instead, they focused on the need to create a criminal-justice system
that was more professional and less arbitrary in its meting out of punishment
against people of color. Embedded in this approach was the misconception that
the negative attitudes of blacks about the police were based on a combination
of poorly trained and biased officers on the one hand and exaggerated feelings
of mistrust by African-Americans, derived from their social and political
isolation, on the other.
Rather than directly addressing
the functional role of the police, and the ways in which the laws they were
tasked to enforce were based on a history of racial inequality, liberal reforms
worked to strengthen that legal system by increasing resources for its enforcement
and imbuing it with a mission of race-blind equality of application. This was
based on the fallacy that the law always protects everyone equally. But, in
fact, the law was neither intended to nor in practice functions in that way.
The poor in particular are at a disadvantage, in that the laws more harshly
target the transgressions that they are more likely to commit. As Anatole
French pointed out in 1894, “In its majestic equality, the law forbids rich and
poor alike to sleep under bridges, beg in the streets and steal loaves of
bread.”
Today’s Task Force falls into
this same trap. One of the central tenets of the Task Force’s report is
reliance on procedural reforms. Procedural justice deals with the ways in which
the law is enforced, rather than substantive justness, which involves the
actual outcomes of the functioning of the system. Such procedural reforms focus
on training officers to be more judicious and race-neutral in their use of
force and how they interact with the public. The report encourages officers to
work harder to explain to people why they are being stopped, questioned or
arrested. Departments are advised to create consistent use of force policies
and mechanisms for civilian oversight and transparency. The report implies that
more training, diversity and communication will lead to enhanced police
community relations, more effective crime control and greater police
legitimacy.
Similar goals were set in the
late 1960s. The Katzenbach report of 1967 argued that the roots of crime lay in
poverty and racial exclusion, but also that a central part of the solution was
the development of a more robust and procedurally fair criminal justice system
that would uphold the rights of all people to be free of crime. In keeping with
this, it called for a major expansion of federal spending on criminal justice.
Just as local housing and social services programs needed federal support, so
too did prisons, courts and police: “Every part of the system is
undernourished. There is too little manpower and what there is is not well
enough trained or well enough paid.” The Commission called for improved
training, racial diversity in hiring, programmatic innovations, and research.
The Kerner Commission on Civil Disorders reached a similar conclusion, calling
for “advance [sic] training, planning, adequate intelligence systems, and
knowledge of the ghetto community.”
Similarly, Johnson’s initial
draft of the 1968 Safe Streets bill called for resources to be devoted to
recruitment and training of police, modernization of equipment, better
coordination between criminal-justice agencies, and innovative prevention and
rehabilitation efforts, and had the support of the ACLU and other liberal
reform groups. After Congress finished with it, the bill primarily granted funds
in large blocks to states to use as they saw fit. Johnson signed the bill
anyway, claiming that the core goals of professionalizing the police would be
achieved. Over the next decade, the result was a massive expansion in police
hardware, SWAT teams and drug enforcement units, and almost no money towards
prevention and rehabilitation.
The one change many point to as
a positive development from this era of reform was the emergence of community
policing initiatives. Even this reform, however, was deeply problematic. Part
of the problem lies in the nature of community. Steve Herbert, in his book,
Citizens, Cops, and Power: Recognizing the Limits of Community, shows that
those who are active in community affairs are not usually representative of the
full diversity of views and experiences in urban neighborhoods. Community
meetings tend to be populated by longtime residents; those who own, rather than
rent, their homes; business owners; and landlords. The views of renters, youth,
homeless people, immigrants and the most socially marginalized are rarely
represented in these bodies. As a result, the problems identified by such a
process tend to focus on “quality of life” concerns involving low-level
disorderly behavior rather than serious crime.
Community policing also tends
to turn all neighborhood problems into police problems. Across the country,
community police programs have been based on the idea that the “community”
should bring its myriad of concerns about neighborhood conditions to the
police, who will work with them on developing solutions. The tools that police
have for solving these problems, however, are generally limited to punitive
enforcement actions such as arrests and ticketing. Why should the police
necessarily be the sole or even lead agency in developing strategies to address
community concerns about disorder and public safety?
By conceptualizing the problem
of policing as one of inadequate training and professionalization, reformers
fail to directly address the ways in which the very nature of policing and the
legal system served to maintain and exacerbate racial inequality. By calling
for color-blind “law and order,” they in essence strengthen a system that puts
people of color at a structural disadvantage. At root, they fail to appreciate that
the basic nature of the police, since its earliest origins, is to be a tool for
managing inequality and maintaining the status quo. Police reforms that fail to
directly address this reality are doomed to reproduce it.
The report does call for police
to acknowledge their historical role in racial oppression, as was recently done
by FBI Director James Comey and to a lesser extent Commissioner William Bratton
in New York. Otherwise, the document largely lays out procedural reforms
designed to better democratize the policing process through internal
consultation with officers and their unions and external consultation with the
public. Departments are urged to think of how the community will perceive their
actions and to pursue non-punitive interactions with people to build trust.
These reforms may improve the efficiency of police bureaucracies and improve
relations with those active in police community dialogues, but will do little
to address the dramatically expanded police role.
What is not discussed in the
report is dialing back in any meaningful way the war on drugs, police
militarization or the widespread use of “broken windows” policing that has led
to the unnecessary criminalization of millions of mostly black and brown
people. Well-trained police, following proper procedure, are still going to be
engaged in the process of arresting people for mostly low-level offenses, and
the burden of that will continue to fall primarily on communities of color,
because that is how the system is designed to operate—not because of the bias
or misunderstandings of officers. A more respectful and legally justified
arrest for marijuana possession is still an arrest that could result in
unemployment, loss of federal benefits and the stigma of a drug arrest.
Lee P. Brown, former NYPD
commissioner, Clinton drug czar and mayor of Houston, has called for a more
comprehensive examination of the criminal justice system and its negative
impacts on communities of color. The Policing Task Force has called for
something similar. It is imperative that such a commission critically assess
our expanded reliance on policing as the primary and in many cases only tool
for managing community problems and suggest real alternatives that strengthen
communities of color.
More importantly, advocates
need to continue pushing for structural reforms to policing and the larger
criminal justice system while continually pointing out the role of racial
inequality in structuring the nature and function of those systems. We cannot
produce true justice by reforming police procedures. Instead, we need to call
into question why we have come to rely so heavily on the police to manage
social problems in a time of growing racial and economic inequality.
