After Michael Brown, after Eric Garner, after Tamir Rice, after Akai Gurley, police and prosecutors are now the focus of heated debate over the present and future of racial justice. The divide in public trust of police and prosecutors threatens to become an irreparable breach. Yet police defiantly resist charges of wrongdoing and bias, and reject calls for stronger oversight by courts and politicians. And prosecutors recoil from allegations that they are partial to, and indulgent of, their law enforcement partners.
The current crisis is a product of a long-term shift, beginning roughly with the Supreme Court’s 1968 ruling in Terry v Ohio that gave police greater license to stop, frisk and search. The courts became steadily more deferential toward the judgment of police on the street. The law enforcement agencies, in other words, are now running the show, indifferent to and insulated from both legal regulation and popular democracy. Courts and legislatures can make only small contributions to resolving the tensions between citizens, police and the constitution under these circumstances, because the factors that give rise to today’s crisis are more a matter of local choices, institutional design and entrenched culture.
The pressing question is how to move from today’s fortress model of policing to a new vision of a democratic and responsive policing. Here are five ideas to reshape policing in the next decade and beyond.
1. Police Accountability. “More training” was the instant response to the non-indictment of the officers involved in Eric Garner’s chokehold death in New York. Training is designed to impart better knowledge of the law and new skills to reduce friction in the everyday encounters between citizens and police. It can’t hurt.
But training does not take root unless officers are held accountable for obeying the rules and practicing the skills they are taught. And most studies suggest that both internal discipline and criminal prosecution are rare. The social culture of policing is strong. The most heavily policed populations tend to believe, with some reason, that police are held to a different standard. Stronger and visible accountability would weaken the hold of old habits and contribute to the perceived legitimacy of the police. Whatever the merits of “broken windows” policing — paying attention to minor infractions on the theory that they lead to more serious crimes — applying those same principles to the police themselves would generate political capital that would translate into citizen cooperation and compliance with laws both major and minor.
Of course there is a counter-argument: rigorous disciplining of police misbehavior could make them overly timid about responding to crime. “De-policing” creates risks for both citizens and police. Finding the balance between lawful, sensitive policing and effective crime control will test the ability of law enforcement organizations to innovate.
2. Learning from Mistakes. Courts routinely award damages to citizens who have suffered injuries or rights violations from the police. These settlements add up: New York City paid over $1 billion to settle police misconduct cases during the 12 year-regime of Mayor Michael Bloomberg and Police Commissioner Raymond Kelly. But as the awards piled up, there was no sign that police acknowledged, analyzed or learned from their costly mistakes. It’s strange that in an era celebrating data and metrics the analysis of court settlements is rare. The costs of litigation are absorbed by taxpayers, and the difficult and uncomfortable process of introspection is avoided. In other public service domains — transportation, medicine, child welfare — there are routines for studying what went wrong: warning signs that were missed, lapses in communication, procedures that can be reshaped to prevent future failure. Why shouldn’t law enforcement have its version of the National Transportation Safety Board?
3. Management By Collaboration. Police departments have become experts in amassing data and designing top-down metrics for benchmarking performance. In contemporary policing, though, metrics are used not to innovate or analyze, but to develop report cards for officers, precincts and other command units. These metrics may tell police managers when and where to respond, they do not tell officers what to do when they get there.
The alternative is management by collaboration that leverages the expertise of individual officers, aggregates and integrates their knowledge. In practice, police from all the units that service an area might pool knowledge of crime and other conditions, consult with neighborhood “experts.” and identify ways to address crime problems. The collective generation of ideas by police with detailed knowledge of what does and doesn’t work and an understanding of the context that generates crime is essential. Collaboration also has the ancillary benefit of redirecting police culture from blaming and risk aversion to productive relations among officers and between officers and supervisors. One other benefit: it would encourage interaction in the field with citizens, victims, and would-be offenders. And this is more than simply “getting to know the community.”
4. Democratic Regulation. Policing in the U.S. tends to be walled off from the communities it serves. Local legislative bodies exercise limited oversight, mainly through their control of budgets. Political oversight comes from the executive branch – mayors or county executives. There are few opportunities for local experts, professionals, and other non-political actors to participate in policing.
Such participation is possible and can be productive. Local networks of stakeholders, whether neighborhood groups or citywide organizations, have convened in Cincinnati, Boston, Seattle, San Diego and other cities to interact with police in a variety of ways. Some inject their own data from surveys or other sources into the review of police activity. Others engage in joint analysis and planning of police activities, bringing local knowledge that might not otherwise be available.
5. The New Police. Decades of lower crime rates and the recent sagging public confidence in our law enforcement institutions present new opportunities to fundamentally rethink the policing profession. Perhaps we have too many police, or the wrong types of police. Perhaps we use police resources inefficiently or in strategies that are mismatched to current crime conditions. These threshold questions haven’t been seriously considered since the social upheavals of the 1960’s. What type of police do we need in an era of Internet crime, of national security threats both organized and random, of lower violent crime rates, of technology that protects against burglary and theft, of transnational criminal networks? How do we resolve the increasing competition between federal and state enforcement regimes? What do widening income inequality and hypersegregation mean for policing?
Perhaps we need more specialization among police to reflect the new challenges of crime and security. Perhaps we need fewer police officers, but paid and treated as professionals rather than civil servants. Perhaps we should screen police applicants for bias, temperament and cognitive skills to minimize risks of encounters that unnecessarily go bad. Should police be licensed and regulated as we do with other professionals who deal with complex human interactions? These are critical questions for the future of the “new policing,” and in turn, for the diverse populations who are policed.
Fagan and Harcourt are professors at Columbia Law School
