Reining in the police: Action or cop-out?
The aftermath of George Floyd’s death is a Me Too moment for race relations and the law enforcement agencies
The death of George Floyd has started something. Exactly where it will take America is difficult to say, but it has already led to the most widespread unrest and protest in America in 50 years. Floyd’s death is the latest in a string of high-profile police killings of black Americans that have, in recent years, turned Black Lives Matter from the rallying cry for a small group of activists to an idea with the support of a majority of Americans and, as the global protests in the middle of a pandemic demonstrate, maybe the most potent political message in the world.
There is one area where the impetus for change now looks unstoppable: the conduct of America’s police
A Me Too moment for race relations in the United States, likely bringing with it both overdue reform and overcorrection, certainly seems possible. But, writing at the start of a summer loaded with ingredients for strife — pandemic, protest, a presidential campaign and a sharp economic contraction — there is little point in prediction. However, whether or not this all proves to be a passing moral spasm or a more profound shift in the racial politics of America, there is one area where the impetus for change now looks unstoppable and where Floyd’s death is mostly likely to shock the country into action: the conduct of America’s police.
A recent Washington Post poll found that two-thirds of Americans think Floyd’s killing represents a systemic problem with policing. In the White House, Donald Trump has signed an executive order that uses federal money to incentivise police departments to meet higher law enforcement standards. On the Hill, both parties are debating bills that would bring more extensive changes.
In cities across the country, where the details of the rules that govern the cops are actually written, local politicians are wrestling with a wide array of proposals for how America’s 15,000 police forces can better enforce its laws.
These changes are aimed at two interconnected problems: that too many Americans are killed by the police every year, and that a disproportionate share of those victims are black. According to Mapping Police Violence, American police killed 1,098 people in 2019. By comparison, 13 people died in or following police custody in the UK in the financial year 2018/19. A 2016 study in the American Journal of Public Health found that black men were three times more likely to be killed by the police than white men. One in three black men are incarcerated at some point in their lifetimes compared to one in 17 white men.
Unpicking this knot is so difficult because, as both the police’s fiercest critics and most loyal defenders will agree, police killings of black Americans are the most violent expression of a thicket of social, cultural and economic problems surrounding race, poverty and violence in the United States.
Hence the breadth of the range of reform proposals, which include bans on specific police methods such as chokeholds as well as more radical ideas, with the fringe suggestion that the police be abolished altogether being taken surprisingly seriously on parts of the left. Notwithstanding an outright end to policing, the measures fall into two categories.
The first set concern accountability. They are aimed at problems such as how to find out if the police have broken the rules, how to ensure justice is done when the police do so; how to stop incompetent or malevolent cops from getting away with violent abuses of power; and how to do away with the protections and opaqueness that allow substandard police departments to continue unreformed.
Clark Neily, vice president for criminal justice at the Cato Institute, says that America “has embraced a policy of near zero accountability for law enforcement”. The cornerstone of that policy, says Neily, is a once arcane legal concept known as qualified immunity, which spares police officers from civil liability in cases where they have violated a citizen’s rights if those rights are not “clearly established”.
In theory, he says, qualified immunity could lead to the perverse situation where the officers who face charges for the death of George Floyd escape civil liability even if they are found guilty of a criminal offence because no previous case clearly establishes Floyd’s rights. The Supreme Court may soon reconsider the principle, while a bill with bipartisan support in the House of Representatives would, if made law, bring the carve-out to an end.
Rafael Mangual, deputy director for legal policy at the Manhattan Institute, is sceptical of the claim that an end to qualified immunity would make a meaningful impact on the quality of US policing. He points to data that suggests it shields officers from liability in just 4 per cent of cases in which a defence could have been raised. Does that sound like the kind of protection that gives officers carte blanche? “It doesn’t strike me as matching the rhetoric on qualified immunity at all,” he says.
Other accountability-boosting reforms include the wider adoption of body cameras by police forces, the repeal of state laws that ensure the confidentiality of the disciplinary records of police officers, and the collection of better data on police violence (it was only after the fatal shooting of Michael Brown in Ferguson, Missouri in 2014, that the federal government started recording police use of force on a national scale).
Behind all these measures lies a bigger issue: the power of America’s police unions and the ways in which they shield their members from the kind of scrutiny that would drive down illegitimate police violence. Unions have used their collective bargaining powers to go way beyond hours and wages and make accountability more difficult. Police union contracts often insist on the removal of officer records after a certain period of time and control the arbitration process by which complaints are adjudicated. The result is a very low rate of disciplinary action. In Minneapolis, where Floyd was killed, just 3 per cent of misconduct hearings result in discipline. Away from the negotiating table, unions wield considerable power in local and state politics. Unsurprisingly, few big-city Democrats relish taking on a big public-sector union, or find themselves on the wrong side of such an important constituency. If American politicians are serious about making it easier to fire bad cops, they will have to grasp that nettle.
A second basket of reforms aims at concrete changes to how the police operate. At the less radical end of the spectrum, it includes calls for popular and comparatively uncontroversial changes, like more training, especially on the kind of “de-escalation tactics” that might make officers less quick to reach for their guns. On both sides of the aisle, there is a view that American policing has grown overly militarised. Should America’s police be responding to unrest with armoured vehicles and assault rifles? Does the LAPD really need mine-resistant tanks and grenade launchers to keep Los Angeles safe?
Meanwhile, under the confusing banner of “defund the police”, some campaigners call for a more fundamental rethink. A minority argue for outright abolition. For others, the slogan means ripping it up and starting again: firing officers and rebuilding law enforcement from the ground up, as local politicians have vowed to do in Minneapolis. For another group, it means “unbundling” the police’s functions by, for example, giving traffic law enforcement to an agency not armed and empowered to use lethal force.
“When you use the criminal justice system for things like mental health issues, substance abuse issues and poverty issues, the police are going to be the primary point of contact for all that stuff, and they’re often just not an appropriate institution for dealing with a lot of those issues,” says Neily.
For Peter Moskos, a Harvard-trained sociologist who worked as a police officer in Baltimore and documented his experience in a book, Cop in the Hood, there’s nothing wrong with a debate about what should and shouldn’t be the job of the police. Now a professor at City University, New York, Moskos says: “If you took drug addiction issues and mental health issues away from police, they would be thrilled. The question is how to do that. How do you get to a point where someone sees someone experiencing one of those issues and calls someone other than the cops?”
“I see no rich community volunteer for this shifting of funds,” Moskos says. “Poor people want more policing”
Moskos is sceptical of progressive calls to “defund the police”. “Try it in a rich white neighbourhood. Try it in a city where residents are rich,” he says. “I see no rich community volunteer for this shifting of funds. Poor, disadvantaged people want more policing. They also want better policing. It’s complicated.”
As Moskos points out, the core function of policing — the prevention of crime — is troublingly absent from much of the reform debate. “There’s a crazy notion that policing and violent crime rates are unrelated,” he says, “and that all the police do is violate rights, so you just want to limit and defund them as much as possible.”
The difficulty of this balancing act — between preventing police abuses and fighting crime — is underscored by a new paper from Harvard economists Roland G. Fryer Jr and Tanaya Devi. They find that the investigations that follow a high-profile police killing of a black American, such as the tragedy in Minneapolis, bring with them a significant uptick in homicides and total crime. Looking at previous deaths at the hands of police in Baltimore, Chicago, Cincinnati, Riverside and Ferguson, Fryer and Devi find that “the causal effect of the investigations” is “893 more homicides than would have been expected with no investigation and more than 33,472 additional felony crimes, relative to synthetic control cities”.
The most plausible explanation for this extra crime is that police stop doing their jobs properly for fear of investigation or punishment. They write: “There is no free lunch. If the price of policing increases, officers are rational to retreat. And, retreating disproportionately costs black lives.” (Other research by Fryer, who is black, finds evidence of racial bias in police use of force, but no such bias in police shootings. Fryer calls this “the most surprising finding of his career”.)
With police preoccupied with protest and unrest in the wake of Floyd’s death, Chicago experienced its deadliest day in 60 years, with 18 murders in 24 hours. These tragic trade-offs are an extreme illustration of a wider reality. Many black Americans find themselves in a nightmarish bind: chronically over-policed in some respects, hopelessly under-policed in others.
After Michael Brown’s death in 2014, the Department of Justice investigated Ferguson’s police department. Its final report paints a grim picture of “unlawful bias” and stereotyping leading to Kafkaesque interactions between law enforcement and the city’s black population.
These actions, the report found, were motivated primarily by the police department’s desire to raise revenue rather than public safety needs. Arrest warrants were “used almost exclusively for the purpose of compelling payment through threat of incarceration”. Officers swapped racist emails. Confrontations were needlessly escalated by the police. Minor misdemeanours and missed payments ended in jail time.
At the same time, black Americans are woefully underserved by the police when they actually need their help. According to analysis by the Washington Post, police arrested someone in 63 per cent of homicide cases when the victim was white, but in just 47 per cent of the cases when the victim was black. According to the Center for Disease Control, homicide is the leading cause of death among African-American men under the age of 45. It is the fifth most common cause of death among African-American men of all ages.
In Ghettoside: The True Story of Murder In America, the journalist Jill Leovy brilliantly explains the violent cycle that occurs when the state fails to deliver on its promise to keep people safe. She argues that “black Americans suffer from too little application of the law, not too much . . . Like the schoolyard bully our criminal justice system harasses people on small pretexts but is exposed as a coward before murder. It hauls black men through its machinery but fails to protect them from bodily injury and death. It is at once oppressive and inadequate.” It is an argument at odds with calls to “defund the police” that can be frustratingly one-dimensional.
The scale and nature of the response to Floyd’s death suggests that an overdue reassessment of the role of America’s police is under way, with action being taken on a national, state and local level. Previous protests after the death of a black man in police custody have first and foremost been about justice and accountability. This time is different, with protests continuing long after the officers involved had been fired and arrested. The question is whether America’s political system — more dysfunctional than its police — can channel all that understandable anger into productive changes to the way the country’s laws are enforced.
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