Does Criminal Justice Reform Extend to Law Enforcement?

Posted in: Criminal Law

Criminal justice reform is all the rage. But so far, almost all the energy has focused on corrections. We are rethinking, at least to some degree, fundamental questions about who goes to prison, how long they stay there, how they are treated while incarcerated, and what disabilities they face on release. But what about the front end of the system? Will criminal justice reform reach law enforcement?

On March 1, the President’s Task Force on 21st Century Policing opened its interim report with the simple but profound observation that “[t]rust between law enforcement agencies and the people they protect and serve is essential in a democracy. It is key to the stability of our communities, the integrity of our criminal justice system, and the safe and effective delivery of policing services.”

The president created the task force last December, after Michael Brown’s death in Ferguson and Eric Garner’s in Staten Island, and charged it with identifying practices that would promote public trust without sacrificing community safety. But eleven days after the task force released its report a lone gunman shot two police officers standing outside a station house in Ferguson as a small demonstration was winding down. (The authorities have now charged a suspect, who, according to press accounts, told investigators he was shooting at someone else and not the police.)

Trying to get a snapshot of the public reaction, I made a point of reviewing the reader comments posted at the end of as many different press accounts of the shooting as I could find. I recommend this practice to anyone who thinks we are in a post-racial society. The great majority of the comments were perfectly unapologetic expressions of racist venom. And by and large, these were not anonymous rants; in most cases, the writers were identified by name and picture.

The following exchange was all too representative. It appeared at the end of the Associated Press account, which had been picked up by

“This is over the line,” Eric Johnson vented, “Time for cops [in Ferguson] to turn their guns from stun to kill.” Janice Clark protested, “Really? Isn’t that what started all this?” Immediately, about a dozen readers pounced on poor Janice. Michael Ockinga shot back, “Absolutely not! What started the mess in Ferguson was the death of a black thug at the hands of a police officer doing his duty, and protecting himself from that black thug.” Continuing, he wrote,

The justified shooting of Michael Brown brought the animals out of the woodwork, and they were spurred on by the radical black racists Obama, Sharpton, and Holder. It is hard enough to control a crowd of black racists without the encouragement those blacks received from Obama, Holder, and Sharpton. Ask yourself why white people don’t riot like animals every time a black thug kills a white person. Ask yourself where are the white people in protest of the shooting of the two officers. Ask yourself where is the outrage from Holder, Obama, and Sharpton over the shooting of the two officers.

I fully recognize that this is not a representative sampling of public opinion. Yet the picture that emerges from the reader comments is still instructive, for these are the people sufficiently enraged by events that they take the time to make their voices heard in the public square. That fraction of the population has always had an overlarge influence on public policy. (The several thousand reader responses at this site can be accessed here.)

Sentiments like these suggest something important but too often overlooked. It is all well and good to say that we want to establish trust between local police and the communities they serve; no one could responsibly suggest otherwise. But woe unto him who thinks the challenge involves nothing more than calibrating the balance between those two groups: the local police and the community.

For decades, policing has been one of those symbolically potent, hot button issues that activates and intensifies the hyper-partisan divide in American life. Any discussion of the police, therefore, instantly becomes code for the most contentious issues we face, including the tumultuous and complex intersections that lace between race, group and individual discrimination, personal responsibility, community well being, and criminality. And when an incident between the local police and the community becomes a national event, as is the case with the death of Michael Brown, the symbolic reaction will inevitably extend to the farthest corners of country and become a call to arms from which partisans cannot retreat.

And this in turn points out the curious limits that have so far marked the outer boundaries of criminal justice reform. We can criticize prisons and corrections, but not the police. Indeed, criticism of the back end of the criminal justice system—prisons in particular and corrections generally—is not merely possible, it is politically popular. But criticism of the front end subjects the speaker to partisan attacks of the most vicious sort. Why?

I will admit straight away that I don’t have a good answer to this question. In fact, part of the motivation for this column is to seek the collective wisdom of those who may be reading. We can dispense with certain explanations. Much of what is currently said about prisons could just as easily be said about the police. Both, for instance, are massive government programs that have, for the past several decades, escaped close scrutiny except by a relatively small contingent of scholars and activists. Both could benefit from the application of data-driven practices that would make them more accountable to the people they serve. And both are beset by problems of perceived illegitimacy among the populations they chiefly serve.

Instead, I think the answer to the puzzle depends on the different symbolic roles played by police and prisons in the criminal justice system. Participants in the system tend to view it as a single, uninterrupted process that begins with an arrest or conviction and ends with prison. I’m not sure the public, however, sees it that way.

Even though crime has fallen dramatically, and the likelihood that most whites will be the victim of a crime is at the lowest point it has been for decades, the police continue to represent, at least symbolically, the thin blue line between order and chaos. I stress that this role is largely symbolic; police do not in fact serve this function because most violent crime is confined to poor and segregated neighborhoods. But the socially constructed idea of a police buffer between civilization and savagery nonetheless persists.

Prisons, by contrast, play a different symbolic role. Opinion polling consistently shows that the public supports giving ex-convicts a second chance. This sentiment obviously sits uneasily alongside the notion that we should “throw away the key,” but the fact seems to be that the public feels an offender who has paid his debt to society should be allowed to start anew. This seems to help account for some of the progressive legislative reform of re-entry programs, as well as some of the movement to moderate the collateral consequences of a conviction.

If this is true, then we can imagine that calls to reform the police will press different symbolic buttons than calls to reform prisons. One can find space in the public square to support the latter that does not exist for the former.

I’m not sure this is a satisfactory or complete answer, and I can certainly imagine someone telling me I’ve confused cause and effect. I welcome other views on the matter. But it is a riddle we cannot ignore. The fact is that criminal justice reform that addresses only the back end of the process will be necessarily incomplete. We are gradually inching toward a new consensus about the role of prisons in society. But unless we achieve a comparable consensus about the police function, our attempts at reform will meet with only limited success.

Posted in: Criminal Law, Law Enforcement

Tags: Legal

2 responses to “Does Criminal Justice Reform Extend to Law Enforcement?”

  1. Public expressions are limited to those who have the strongest viewpoints. Even if we were to give credence to those harboring belligerent and hostile attitudes. Free speech, permits opinions. Police are state actors, and are limited in their actions and some of their speech, while acting in capacity. If police officers treat citizens disparately, they are acting on behalf of the state and should be sanctioned.

  2. Nat says:

    I think there is certainly something to be said for the symbolic role argument that you make here although it is certainly (and unfortunately) more complicated than this. You could argue that people model prisons as in a way similar to the way that you talk about police –as locations (the location part is key) where we ‘put’ people to isolate dangerous elements and in this way prisons very much represent a thin barred line between order and chaos. So while much of what you say is right on, I wonder whether it’s really the fact that prison is somehow constructed symbolically as less essential to preserving order and staving off chaos than are police.
    I don’t have the answer either (again, unfortunately), but something else interesting to think about: police are understood as people, prison as a system. People think about people and systems in very different ways. People do see problems with police officers but it is as isolated bad apples rather than at the policy/system level. The fact that individuals are such dominant representations of police keeps people from thinking about this part of the system as part of the system–something structured by policies–which in turn makes it hard to talk about and get people to get behind policy reform of what is modeled as a problem with a few bad apples.

    This is a complex issue with many deep layers of symbolic, cultural and cognitive webs to pull apart.

    But thanks for starting the conversation here.