A few years ago I visited dear friends in Louisiana during a spring break that happened to coincide with Mardi Gras. At around ten in the morning, we pulled out a pack of red Solo cups and joined the multitude to watch the parade. My memory of the day is admittedly pretty hazy, though I do distinctly remember eating lots of king cake, adorning myself with as many beads as I could get my hands on, and accepting Jell-O shots from strangers hosting front-lawn house parties.
We almost definitely broke the law. New Orleans ordinances allow for public drinking, so long as it is not open-container, but we were in Spanish Town outside of Baton Rouge—and after spending five minutes googling this, I’m still not clear whether public drinking is allowed there by ordinance or merely tolerated for Mardi Gras. Regardless, that was not the main offense. Louisiana allows eighteen-year-olds to drink, but it does so only when those eighteen-year-olds are accompanied by a legal guardian, which the underage member of our party was not.
The other thing I remember distinctly about that day was seeing random drunk twentysomethings offering red Solo cups to police officers (who politely declined) and taking selfies with them. Thinking back, there were a lot of uniformed police on site, but none of us felt remotely threatened, even though, and I stress this again, we were actively breaking the law.
There are two main ways of thinking about the appropriate goal of policing. The first mindset is that the police are there to enforce every law on the books by identifying and punishing any infraction (no matter how small). If that’s the goal we have in mind, then the police failed miserably during that Mardi Gras celebration; my friends and I broke the law (I would like to clarify). So did a ton of other people. Broke the law. And we were not subtle! They could have caught us! We were right there! They could’ve just asked to see IDs!
But there is another way of thinking about the purpose of policing. We might have as our goal for our police that they help to maintain community standards of public safety and order. If this is our evaluative framework, then the police were highly successful that day; their presence helped to deter purse-snatching, vandalism, and most fistfights—all things that weaken public safety and order and undermine the ability of a community to celebrate together.
There are two parts to my argument in this article. In the first part, I want to convince you that the “community-standards” model of policing is a more theoretically sound and practically effective approach. And in the second part, I want to explore concrete policy for meaningful reform based on that community-standards model.
What Is Policing For?
In 1829, Sir Robert Peel created the Metropolitan Police Force to deal with rising crime in England. This was the first police force in the modern sense, the alternative to the night watch, to the hue-and-cry system of community self-policing (which in practice came close to mob justice), and to private security, and it proved extremely successful. It would later serve as a model for the nation as a whole, and indeed for the police forces of several other nations including Canada and New Zealand.
What were the police? It is crucial to understand what they were not: they were not the military. Peel emphasized the civilian nature of the police force, often observing that the “police” are just 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.” A formulated list of principles for law enforcement are often ascribed to Peel, based on the ethos that he cultivated. Among these principles are the following four:
1 – The basic mission for which police exist is to prevent crime and disorder as an alternative to the repression of crime and disorder by military force and severity of legal punishment.
2 – The ability of the police to perform their duties is dependent on public approval of police existence, actions, behavior, and the ability of the police to secure and maintain public respect.
3 – The police must secure the willing cooperation of the public in voluntary observance of the law to be able to secure and maintain public respect.
4 – The degree of cooperation of the public that can be secured diminishes proportionately to the necessity for the use of physical force and compulsion in achieving police objectives.
Comparing this list to various recent moments in the United States, we can see the dramatic failure of our various police forces as measured against each of these four principles. When cities across the nation mobilize militarized police to respond to peaceful crowds by using chemical weapons to disperse groups of citizens practicing their constitutional rights to free assembly, speech, and political expression, it is clear that the principle of crime prevention has given way to that of authoritarian repression of public protest. Likewise, these same principles are violated when stop-and-frisk policy leads to racial targeting and overt systemic bullying in New York; when the practice of so-called rough rides leads to unlawful deaths of citizens in police custody in Maryland; when a city’s own officials are giving the directive to use aggressive civil-forfeiture-based policing as tax revenue as was the case in Ferguson. And this isn’t even digging into the only slightly less recent history of policing in America, such as the decades of systematic torture of over one hundred black men by police forces in Chicago.
But let us set aside the obvious cases of malpractice and even malevolence. Even in relatively good times, it is entirely unclear to me that Peel’s views are in any way normative in policing across the States. And I don’t think the blame for this can be placed solely on the police as an institution. Instead, we need to talk about the “public” more broadly.
“In politics,” wrote Oliver O’Donovan for this publication, “we conceive of an action as ‘ours.’ To act together, of course, we must act through dedicated institutional structures and agencies, through representative officials and leaders, but the logic of what they do will always trace back, even if circuitously, to the deliberations of the political society as a whole. For that is the source of all public authority, and defines its scope.”
This insight is important because while many of us can feel alienated from policing as an American institution, that feeling does not actually remove us from the political society we are situated in as citizens. This model of policing has been called “policing by consent,” but the kind of consent is subtly different from that envisioned by literalist understandings of social contract theory. In 2012, the UK government Home Office explained that under the model of policing by consent, “the power of the police come[s] from the common consent of the public, as opposed to the power of the state. It does not mean the consent of the individual,” noting that “no individual can choose to withdraw his or her consent from the police, or from a law.” This seemingly paradoxical vision is at the heart of O’Donovan’s conception of political society, and thus of what might be called an O’Donovanian approach to policing. As O’Donovan writes, “There are public lands, public buildings, public roads, public institutions, and public revenue; but they depend on something more fundamental, a public society created by a public discussion. Someone who has no part in our discussion is not a member of our political society.” Thus to the extent that we are members of this society, we all, collectively, bear a certain responsibility for those political structures, processes, and outcomes that are produced by the society we together constitute. We have the responsibility and obligation to obey the laws; we have the responsibility and obligation to help shape them, and to shape as well the form of civility, of public life that exists at a more subtle level than that which law can touch.
What we owe each other, says O’Donovan, is “candid speech.” That means we bear responsibility for the conversation as well: Conversations have consequences. When we listen in on the public conversations around policing in America in the 1980s, for example, we hear widespread and understandable fear concerning high rates of violent crime in America cities. We also hear the language of “super predators” applied to black men as a demographic; we hear other racist tropes about “black criminality” deployed in ways that tend to make the “black criminal” a special category of person. When the time came for policy to be made, for these conversations to make their way into practices and laws, the pathologies in our public discourse translated directly into harmful (and often nefarious) principles of policing and sentencing in direct contradiction to the insights that Peel and those in his camp had articulated.
I don’t mean to suggest that the problem with American policing began in the 1980s, with the top-down initiatives from Presidents Reagan and Clinton, or with the bottom-up practices like heavily racialized and antagonistic stop-and-frisk policies adopted by local police departments. I don’t mean to imply that all of the problems fall as neatly into the categories which I’ve briefly outlined here. For one thing, policing in the States has never fully adopted Peelite principles; it has a mixed origin. Early nineteenth-century municipal police departments were similar to those adopted in England—but the context was different: unlike in England, the history of American police-like activities before the nineteenth century and through the end of the Civil War included widespread slave-catching, and the “public order” that post–Civil War police were in many places required to keep included enforcement of Jim Crow laws. Far more can be said. But all of those things that can be said don’t invalidate the positive vision of Peel’s principles. Those who are currently waking up to the need for police reform, for “community policing,” for the abolition of militarized police, are waking up to what the original vision for municipal policing actually was. The wrong they are noticing is precisely the distance between Peel’s principles and what policing often looks like in the United States.
All of this leads us back to our starting question, What is policing for? Are the police in Spanish Town there to catch underage drinkers (more or less) safely celebrating with close friends and family members? Or is there a more fundamental purpose, something more directly and tangibly tied to the well-being of a community and its members, a kind of celebratory order in which the officer is a participant, albeit one with a particular role?
Broken-windows theory, the idea that visible signs of civil disorder create an environment that encourages further disorder, including violent crime, gets a bad rap these days, almost exclusively because of its connection to stop-and-frisk. And indeed you can draw a straight line between interpretations of the theory and the murder of Eric Garner, who was strangled by an officer (using an illegal chokehold technique), and whose crime (such as it was) involved the selling of cigarettes on a street corner. But stop-and-frisk is a bastardization of broken-windows theory. Consider the original piece written by George L. Kelling and James Q. Wilson and published in The Atlantic.
The authors begin by describing the results of New Jersey’s 1972 “Safe and Clean Neighborhoods” program, which, among other things, increased foot patrols for local police. The authors note that police departments were initially resistant because foot patrol is more decentralized, more physically taxing, and not necessarily likely to actually lead to lower crime rates. After documenting these reasons why the program seemed doomed to fail, the authors report what actually happened:
Five years after the program started, the Police Foundation, in Washington, D.C., published an evaluation of the foot-patrol project. Based on its analysis of a carefully controlled experiment carried out chiefly in Newark, the foundation concluded, to the surprise of hardly anyone, that foot patrol had not reduced crime rates. But residents of the foot patrolled neighborhoods seemed to feel more secure than persons in other areas, tended to believe that crime had been reduced, and seemed to take fewer steps to protect themselves from crime (staying at home with the doors locked, for example). Moreover, citizens in the foot-patrol areas had a more favorable opinion of the police than did those living elsewhere. And officers walking beats had higher morale, greater job satisfaction, and a more favorable attitude toward citizens in their neighborhoods than did officers assigned to patrol cars.
Did you catch that one little detail, that the foot patrol did not actually reduce crime rates? If your Mardi Gras policing model is about “number of underage drinkers cited,” as some of the heavy-handed approaches to broken-windows theory might suggest, you’d look at the New Jersey program as an utter failure. But in the context of broken-windows theory properly applied , which is to say in the context of community standards of public safety and order-based policing, this 1972 reform is cited by the authors as a great success and one worth emulating. Many folks may “get away with” some kinds of minor wrongdoing, but it will be wrongdoing which doesn’t indicate neglect . Rigid enforcement of rules will give way to a kind of personalized shaping of the overall flavor of a community. Crime is reduced where it needs to be reduced in order to prevent a neighborhood from falling into decay, and to protect the vulnerable: to make the statement that this is a community which knows itself and has not been abandoned by its members or by the public authorities .
Here’s how the authors describe the daily interactions of an officer and his community:
The officer—call him Kelly—knew who the regulars were, and they knew him. As he saw his job, he was to keep an eye on strangers, and make certain that the disreputable regulars observed some informal but widely understood rules. Drunks and addicts could sit on the stoops, but could not lie down. People could drink on side streets, but not at the main intersection. Bottles had to be in paper bags.
The point to underscore here is not the specifics of the informal rules, but rather that these rules were not imposed top-down from a militarized force disconnected from the relational dimensions of communal life. As the authors note, “These rules were defined and enforced in collaboration with the ‘regulars’ on the street. Another neighborhood might have different rules, but these, everybody understood, were the rules for this neighborhood.” In other words, the particulars of policing were directly tied to the particulars of the kind of public deliberations (though informal, and a matter more of culture than of parliamentary speeches) that O’Donovan argues helps to constitute public society. In this model, there is public ownership of policing outcomes. In other words, when Mardi Gras policing is about upholding the standards a community has set for itself, then members of that community will not be alienated by policing, but instead will trust and respect it as a vital piece of communal infrastructure.
The failure in translation of broken-windows theory should disabuse us of the notion that simply advocating for “community policing” will mean that no miscarriages of justice ever occur. But even in those instances, this model of policing is worth our attention precisely because it allows for public discussions by the community to hold officers and officials accountable. As O’Donovan writes, “Force exercised by institutions of government may sometimes be exercised deplorably. When it is, we know that it still belongs to the authoritative structure of government precisely when political discussion takes the matter up, seeks to redress its wrongs and to improve the standard of public practices.” And so long as there is actual recourse and redress—not at all a given in many places in the United States—then individual instances or even prolonged patterns of bad behavior can be addressed without the awful rending of that fragile trust between a community and its guardians.
And on that last point, it’s time to get in the weeds about the specific concrete policy reforms that we should advocate for in order to reform our policing institutions such that they align with the model I’ve argued for here.
How Do We Reform Policing?
I want to be clear right away that this section is meant to be illustrative, not fully comprehensive. If you want the long version of this, you can start with the Department of Justice’s 2015 report on twenty-first-century policing. But I think what follows provides some starting points to inform our public discussion about police reform.
Let me start with what I consider to be the low-hanging fruit. These reforms are simple and should easily garner bipartisan support. And because they can be implemented at the federal level, these reforms are also easily standardized and applicable for everyone as soon as the bill is signed into law:
Just say no to free military supplies:
We should abolish or reform the 1033 provision. One main reason that law enforcement has become more militarized is because of a provision in the National Defense Authorization Act that allows federal, state, and local law-enforcement agencies to access obsolete or unneeded military supplies (with certain limitations, e.g., no tanks) for no cost aside from the price of shipping.This has allowed hundreds and hundreds of local law-enforcement agencies to equip their police force in ways that run directly contrary to Peel’s principles. And I’m not just talking about guns. I’m also talking about uniforms that look more like paramilitary gear than anything associated with civilian-based community policing.Major metropolitan areas need a bomb squad, but the argument that every department in America needs military gear is suspect. The point of police is that they are not the army. One practical tweak might be that departments have free access to noncombative supplies (computers, medical supplies, etc.) but must pay at competitive rates for everything else. If 1033 combat gear came at a cost (even at below-market rates), we could expect to see this gear only going to the departments that actually need it, with the vast majority of departments choosing to allocate their resources elsewhere.
Mandate clearly accessible use-of-force policy:
I want to be able to visit any local government website and see their internal use-of-force policy, as a form of communal accountability. This is something Congress could enact as federal law, binding on every law-enforcement agency in the United States. More transparency here would also allow law-enforcement agencies and the communities they serve to survey best practices and implement changes on that basis. Along these same lines, it is worth pursuing federal legislation that would require all law-enforcement agencies to report any use-of-force incidents to the Justice Department to allow for a more comprehensive database. This could also be another form of implicit accountability, as agencies quickly realize that required reporting means the Justice Department is keeping tabs.
Treat civilians you’re policing at least as well as you treat enemies during wartime:
This means outlawing the use of tear gas. The Geneva Convention outlaws the use of chemical agents like tear gas as weapons during wartime, so why on earth should we tolerate its use domestically against civilians? We shouldn’t. It’s really that simple. I include this in my list of low-hanging fruit not because I think it would be easy for Congress to pass a law on this on their own accord, but rather because it should be easy to create a broad populist movement in America that demands Congress pass such a law.
Ban use of carotid neck restraints (chokeholds):
As expertly reported by the Los Angeles Times, carotid neck restraints have been touted by law-enforcement agencies as effective and safe despite the troubling racial history of the technique and despite its consistent record of leading to serious injury and death. It’s time to say no more. And while we’re at it, I think we need serious scholarship that can provide empirical basis for what kinds of force should be tolerated as normative practices; anecdotal evidence is not good enough.
Abolish no-knock warrants:
Frankly it’s hard to conceive of a more fundamental violation of civil liberties than law enforcement breaking into a home in the middle of the night, with no announcement of identity or purpose, in order to serve a warrant. And Senators Rand Paul (R) and Tulsi Gabbard (D) agree, which is why they are proposing the Justice for Breonna Taylor Act, which would prohibit such no-knock warrants.
In addition to these, there are also some harder sells that are worth mobilizing around and seeking to initiate, though these reforms will likely need to be implemented on the state and local level. For example:
~establishing residency benchmarks for police officers to ensure that the people who are policing a community are actually members of that community,
~decriminalizing various offenses including jumping the turnstile, possession of small amounts of controlled substances, street peddling, nonobstructive loitering, and so on;
~ending the reliance on civil forfeiture to meet budget deficits and fund pensions;
~decoupling departments from overly powerful and democratically unaccountable police unions that provide cover for misconduct:
~shifting to community-policing models but without the surveillance-state apparatus that often accompanies this model;
~implementing civilian oversight boards that automatically review all use-of-force incidents and that avoid common constraints and mistakes;
~increasing funding for foot patrols in communities that could benefit from more face-time with offices, based on the latest empirical research; and
~implementing carrot-and-stick incentives for de-escalation training and other such initiatives.
These reforms only begin to scratch the surface for what is needed. But they are also actionable in a way that “abolish the police” slogans on protest signs are not. They do not throw the baby of civilian policing out with the bathwater. We are in desperate need of reasoned public conversation about policing in America, complete with concrete proposals and the political will to ensure that those proposals are implemented. This is in reach. It’s real. And it is based on a set of historical policing principles which many US police officers themselves recognize as an ideal.
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“What do we need to do together to practice justice in our common life?” This is, as O’Donovan writes, the fundamental question of political discourse. I think that is an important question to carry with us as we think about policing and a whole host of related policy challenges.
And ultimately, I think this is a question we need to have the courage to raise in the most immediate circles that constitute our local community: in our own cities, in our own circles. For, as O’Donovan notes, “we have a responsibility to the justice of our place, the place whose institutions make our daily existence possible. We have a responsibility for political neighbors sitting at our gate, who have first call on our engaged attention.”
The prophet Micah entreats us to do justice, love mercy, and walk humbly with our God. As we set out to tackle the challenges that lie before us in 2021, this massive task of rebuilding trust and justice in the post-Trump era, these simple commands should be the guiding light for all our public discourse in service to our shared pursuit of justice and the common good.
