Want Police Reform? Start at the Top

Posted in: Criminal Law

This column continues my discussion of police reform. I want to distinguish between two very different approaches: starting at the bottom in the hope that it will lead you to the top, versus starting at the top and treating the bottom as a social rather than a criminal problem. Police departments mired in the past follow the former approach, while the most promising reformers, like Cincinnati and Baltimore, are trying to move toward the latter.


Picture an apartment building with four units in a neighborhood beset by high crime, poor services, bad schools, and limited opportunity. Two units are empty. A third is occupied by Beverly, a single mom with two children. She works part time at the post office and part time at a local hair salon, and worries a lot about keeping her kids out of trouble, especially her 10-year-old son, who has begun to feel the pressure and pull of the street. There are tens of thousands of buildings like this across the country.

The fourth unit is occupied by a young woman. Let’s call her Yvonne. She has an 18-month-old daughter and did not finish high school. The child’s father, Allen, is a drug dealer and a prominent member of a local gang. He understands that street dealing makes him too visible to the police and exposes the younger dealers under his control to excessive risk, so he has commandeered Yvonne’s apartment for his business.

Allen’s young dealers have regular access to the building, which has no security, and to Yvonne’s unit. They come and go as needed. Occasionally, if a buyer comes to the apartment when none of the gang members are there, Yvonne makes the sale. In exchange for all this, Allen pays Yvonne’s rent and expenses and gives her a modest allowance, which pays far more than the jobs available to her in the “regular” economy and allows her to stay home to raise her daughter.

Predictably, things go awry. Junkies loiter around the apartment building waiting for dealers, wandering in the hallway or sleeping on the stoop. Fights frequently break out between dealers and disgruntled clients, and a dealer was shot in the hallway two weeks ago. The gang often has loud parties in Yvonne’s apartment, and prostitutes have started to bring their tricks to the unoccupied apartments because the gang members provide some security from johns that might get rough or refuse to pay. And recently, a rival gang shot out all the windows in Yvonne’s apartment.

The detritus of all this—the used condoms, empty syringes, urine, vomit, trash, shell casings, and graffiti—litters the halls and sidewalk outside the building. Meanwhile, the young dealers have noticed Beverly’s son and have repeatedly encouraged him to join them, taunting him when he has refused. One time, they beat him up. Beverly has complained repeatedly to the police and the city about the goings on in Yvonne’s apartment, to no avail.

Now imagine not one, but scores of apartment buildings like this, crowded into 100 square blocks of a major metropolitan area and interspersed with some public housing complexes, a few walkups, a couple brownstones, and the random single-family home. There are thousands of Beverlys. Hundreds of Yvonnes. Dozens of Allens. Four or five street gangs. An apparently limitless supply of guns. Lots of shootings. In our mind’s eye we see abandoned buildings, broken-down cars, and boarded-up shops. On the main streets, storefront churches sit cheek to jowl with all-night pawn shops. We know the words routinely paired with this image: blight, despair, desperation, hopelessness.

How does the criminal justice system respond to all this? The answer matters a great deal, for the response must be at the heart of anything we might call criminal justice reform.


There’s no question what the response would have been for most of the past 45 years: Start at the bottom and work your way up.

To begin with, the police raid Yvonne’s apartment and arrest her. And why not? She is clearly a member of Allen’s criminal conspiracy and is legally responsible for every ounce of drugs dealt from her home, as well as the foreseeably related crimes committed by co-conspirators, like the shooting that took place two weeks ago in the hallway. In addition, she is the loving mother of a young daughter.

That means the law can make Yvonne an offer she cannot possibly refuse: either plead guilty and cooperate against Allen and the members of his conspiracy, or face years, perhaps decades, in prison and the loss of her child. Prosecutors can exert similar pressure against anyone arrested in the raid that nets Yvonne. They can also make continued cooperation part of the deal, which means Yvonne can be called back to testify against conspirators who may be arrested in the near future.

Yvonne pleads guilty, as do the other conspirators. Some, like Allen, are sent away for many years; others for comparatively less time, but all end up with felony records. Cases like this are exceedingly easy for police and prosecutors, and multi-defendant criminal conspiracy cases have been the bread and butter of federal prosecutions for years.

But the case against Yvonne is only part of the traditional response. The police also want to stem the disorder that accompanies Allen’s drug business. They don’t want prostitutes turning tricks in the empty units and junkies sleeping on the stoop. They don’t want young dealers to entice Beverly’s son to join the game. They descend en masse and maintain a highly visible presence to convince johns, junkies, dealers, and prostitutes to take their business elsewhere.

The end result? Allen’s criminal conspiracy is dismantled, and a bunch of johns and junkies are sent a signal to stay away. Sounds great, right? Mission accomplished. But let’s take a closer look.

Five days after Yvonne pled guilty, another young woman moved into her apartment, which was quickly commandeered by Luther, who brought in tow another group of young dealers. Yvonne is serving an 18-month sentence as a condition of her plea, and her daughter is in foster care.

At the same time, everyone understands that Yvonne was not the problem. Yvonne needs what a lot of single mothers need: a decent place to live, a good job, safe and reliable daycare, etc. She doesn’t need to be in the criminal justice system. Odds are very good that she’s not violent or dangerous. The case against her was simply a way to reach Allen.

But in fact, and this is more difficult for people to understand, a case against Allen may simply be a way to get at Mitchell above him. Statistically, Allen is probably in his early 20s, and deals drugs because it is far and away the most lucrative opportunity available to him. He may not be particularly violent—he might not be violent at all—though he routinely carries a gun to defend himself and chase off competing gang members who would steal his product or encroach on his territory. From a community perspective, what’s so important about sending Allen away for decades, or maybe for the rest of his life? Allen was not the problem either.

And the second part of the police response is no more successful than the first. Because the police cannot reliably distinguish between Beverly’s son, who is just walking to the store, and the young dealer walking behind him, or between Beverly’s law-abiding boyfriend and the john who lives nearby, they begin to stop everyone for the most petty violations—failing to signal a turn, jay-walking, loitering. That’s what “zero tolerance” means.

Everyone is treated as a part of the problem, and pretty soon everyone in the neighborhood has an arrest record, though people in the community understand full well that Beverly’s son and boyfriend are not part of the problem, they’re part of the solution. Eventually, Beverly gives up and is moving out. Her son was arrested for possession of a small amount of marijuana.

In the end, no one is happy. Luther has replaced Allen and the chaos continues in Beverly’s building. Beverly’s boyfriend and son have arrest records and have been saddled with fines and surcharges they cannot afford to pay. The community mistrusts the police, and no one listens when they protest that they were just trying to help. And it’s not made any easier when an officer shoots a young man in an entirely unrelated incident. Whether the shooting was justified or not, the community and the police will view events through the lens of their prior experience, and the mistrust will deepen and intensify into a smoldering anger.

That’s what happens when you start at the bottom and hope you can arrest your way to the top.


But what if we start at the top?

A re-oriented approach to policing begins with two, fundamental propositions. First, the overwhelming majority of violence and large-scale drug dealing in any major metropolitan area in the United States is committed by a vanishingly small percentage of the population. What looks to outsiders like a war zone is nothing of the sort. It is—or would be—a thriving neighborhood, if that small number could be made to stop their destructive behavior. What appears like block after block of anarchy is in fact home to thousands of productive, law-abiding citizens who want what all of us want. The decay is caused by the downward spiral that inevitably trails behind the destructive behavior of a very small number of people.

Second, and even more important, law enforcement cannot win without the active support of the community. Police can make arrests by the thousands, and prosecutors can fill the prisons with supposed “bad apples,” but without the active support of the community, the streets will not be safe, the violence will not end, and the fraught relationships between police and the people they serve will not improve. Without the community, police and prosecutors are virtually powerless to change things for the better. They can make things much worse, but they cannot make them better.

These two propositions have critically important consequences. To begin with, one of the great advances in police practice of the past fifteen years has been the realization that the police and community can work collaboratively to identify, target, and reach those few whose behavior causes so much chaos, directly and indirectly. And I choose my words carefully: “reach” is not a euphemism for “arrest and prosecute.” From a social perspective, we would much rather these people stop voluntarily than be coerced into compliance by the criminal justice system.

Two of the most promising approaches in this vein are the CEASEFIRE strategy developed by academics David Kennedy and Anthony Braga, and the closely related Cincinnati Initiative to Reduce Violence, or CIRV, developed by a diverse team of community leaders, academics, police and city officials, and civil rights lawyers in Cincinnati.

The two strategies follow essentially the same model: law enforcement, paired with the most trusted moral voices in the community, identify the small number of offenders who account for the great majority of violence and drug-dealing, ask them to come to a central location, and present them with an option: stop the violence and leave the game or face the certainty of a future prosecution that will send you to prison for years, if not the rest of your life. At the same time—and this part is vitally important if the strategy is to be credible—the group is presented with viable alternatives to the life of violence and crime they had been pursuing: education, job training, housing, child support, addiction treatment, etc.

It sounds ridiculously simple—just tell people to stop, give them meaningful alternatives, and the rest takes care of itself. David Kennedy, who first developed this strategy, has marveled at its simplicity. But the fact is, it works. Or at least, it can, if it is pursued rigorously and in good faith. This column is already too long, so I would refer the skeptical reader to the website of the National Network for Safe Communities, which describes some of the results communities have enjoyed after adopting these strategies. Ending the career of the most destructive few not only produces a dramatic decline in lethal violence, but curbs much of the disorder that inevitably trails in its wake.

And most important to me is this passage from the 2013 strategic plan released by the new Baltimore Police Commissioner, Anthony Batts:

The department will develop a robust Ceasefire initiative. . . . The department will appoint a Ceasefire coordinator who will lead a citywide, multi-agency Ceasefire project team. The project team will bring in federal, state, and community partners, to implement a Ceasefire strategy based on those that have been resoundingly successful in other jurisdictions.

At the same time, reformers have ended the saturation policing of “zero tolerance.” Once again, Cincinnati provides a good model. According to a recent article in The Atlantic, misdemeanor arrests in Cincinnati have fallen by nearly sixty percent since the turn of the century, from more than 41,000 in 2000 to fewer than 18,000 in 2014. Paired with other changes in police training and the use of force, police reform in Cincinnati seem to be succeeding. Since 2000, police use-of-force incidents are down 69 percent, citizen complaints by 42 percent, and citizen injuries during interactions with the police by 56 percent. Yet the city has enjoyed a nearly 40 percent drop in violent crimes.

No one credibly thinks that programs like CEASEFIRE or CIRV, or any of the changes introduced in Cincinnati or anywhere else, are a panacea. But they can be a major first step in accomplishing two things: ending the violence that leads to so much social disintegration; and restoring a relationship of trust between law enforcement and the community it serves. Unless we have both, criminal justice reform will never be more than a slogan.

In future columns, I will talk about some of the other strategies being developed to reform police practices, and that can be paired with programs like CEASEFIRE. But let me tip my hand about their significance: If these strategies were adopted and applied conscientiously, they represent the best chance we have ever had for meaningful reform of police practices in the United States.

  • ingeborg oppenheimer

    a very thought-provoking article, and the situation as it currently exists accords
    with much that i learned in nearly 4 decades of work in a forensic setting. but
    i wonder what would happen if, in addition to efforts to heal the rift between
    community and police, laws against drug use and prostitution were removed from
    the books – if these behaviors were decriminalized, so that they no longer
    formed a reason for police action. the sale and drinking of alcohol was at one
    time per se a crime; now it is only a crime if it endangers others, such as when
    someone drives under the influence. while this argument will not sit well with
    folks who believe that it is the right and duty of government to restrict any
    and all behaviors which for one reason or another [biblical proscriptions being
    one] are considered wrong, it might stand a chance with folks – the majority,
    one hopes – who have come to recognize the fallacy of that