The challenge of policing minorities in a liberal society

Abstract

The problem with police is not that they are fascist pigs but that our country is ruled by majoritarian pigs. Ta-Nehisi Coates To change the police without changing the police role in society is as futile as the labors of Sisyphus. John van Maanen This question is, I will argue, of considerable importance to political philosophy, because it exposes a tension in the liberal project as a whole. It has, unfortunately, been subject to relative neglect; there has until recently been very little philosophical or normative literature on policing, much less the policing of minorities.3 There are two reasons for this, both of them based ultimately on the perception that the problem is theoretically straightforward, and so does not raise any philosophically difficult questions.4 With respect to policing in general, many political philosophers appear to believe that the police are uninteresting, because they serve the purely instrumental role of enforcing statutory law. And with respect to minorities, widespread acceptance of the fascist pig theory leads to the perception that the problem is also normatively straightforward. If tensions between police and minorities are caused by the police being racist, then the solution is obviously for the police to become less racist. These two views, when combined, generate a highly simplistic account of the problem of policing minorities.5 It suggests that, since the police are there to enforce the law, all they need to do is enforce the law in a non-discriminatory way, treating all citizens equally, and the problem should go away. The argument, however, rests on a false premise, since the police do a great deal more than simply enforce the law, and it is primarily these other activities that give rise to problems. My preliminary contention in this article will be that both of the underlying theories about policing are false or misleading. Obviously, the police do enforce the law, but as several decades of work in the sociology of policing have shown, this is not all that they do, and, indeed, this does not even add up to a substantial fraction of what they do. And equally obviously, there are some police who are racist, both consciously and subconsciously, but this goes only part of the way to explaining the seriousness of the difficulties that practically every major police force experiences in its relations with particular minority groups.6 Indeed, a great deal of the motivation for the shift in emphasis toward “systemic racism” in expert discourse on the subject lies in the recognition that the emphasis on eliminating attitudinal racism or increasing officer diversity has reached the point of sharply diminishing returns in many jurisdictions.7 In order to understand the broader source of the problem, I will argue, it is necessary to see that effective policing is inherently communitarian. The result is that minority groups who are unable to implement a self-policing regime find themselves subject to coercive enforcement of social norms and standards of respectability that reflect parochial aspects of the majority culture, which they often resist. I refer to this, referencing Ta-Nehisi Coates, as the “majoritarian pigs” theory of oppressive policing.8 Liberalism, to the extent that it imposes a neutrality constraint only on statutory law, is powerless to remedy this problem directly, which is why the policing of minorities poses a fundamental challenge in liberal societies. To put the claim in highly condensed form: even when the state is liberal, society is not, and the police, in order to be effective, are obliged to meet society half-way.9 The article proceeds as follows. I begin by distinguishing two very different normative models of policing, which follow from different views about the basis of police authority. The first view, which I refer to as the legalist model of policing, rests on the claim that police power should be limited to law enforcement, narrowly construed (which is to say, preventing crimes in progress and apprehending those who have broken the law). In contrast to this, I will describe what I refer to as the communitarian model of policing, which regards the organized enforcement of statutory law as deeply intertwined with enforcement of the informal social order. The authority of the police, on this view, extends beyond the enforcement of law to include a wide range of interventions aimed at complementing the efforts of communities to maintain order. The communitarian model, as a reconstruction of policing best practice, is what underlies the widespread call for more “community policing” as a response to various ailments.10 It is not difficult to see, however, that this practice creates a number of normative difficulties in a pluralistic society. The central tension arises from the desire on the part of the liberal state to exercise a monopoly on the legitimate use of force while simultaneously enacting only laws that meet a fairly restrictive standard of justification. The consequence is that the police are subject to constant demands from the public for interventions that extend far beyond the ambit of law. In principle, this tension could be dissolved by adopting a legalist approach and restricting the activities of the police to law enforcement narrowly construed. I will therefore round out the argument by outlining several reasons why I think this would be neither desirable nor realistic. I unfortunately do not have any simple solutions to propose to the underlying dilemma. I do, however, think that a deeper understanding of the difficulty of the problem is important. Policing has been the subject of a great deal of debate in recent years, which has unfortunately exposed significant misunderstanding of policing as an institution, not just in the public at large, but among many academic commentators as well.11 This has many effects, one of which is to reinforce the pre-existing tendency among the police to see themselves as an embattled and misunderstood minority, which in turn provides them with grounds to dismiss normative demands made upon them. The first step toward amelioration of the situation must involve a proper understanding of the difficulty of the problem and the extent to which police are being subjected to contradictory demands. When sociologists first began to take an active interest in studying the police, in the late 1960s, they quickly acquired the Socratic wisdom—they came to realize that they didn't really understand what the police do most of the time, or why it is the police that are doing it. In particular, they discovered that statutory law enforcement constitutes a vanishingly small fraction of what the average patrol officer spends most of the day doing.12 Yet despite this puzzlement over what the police do, there was never any doubt about the distinctive characteristic of their institutional role, which is that they are agents of the state who are authorized to use force.13 It is also generally accepted within modern liberal societies that this authorization to use force is grounded in, or legitimated by, law—primarily criminal statutes, but also traffic and vehicle law, certain municipal and regional ordinances, and in some countries immigration law. The most common mistake, however, is to think that because the use of force by police is authorized by law, it is used only to enforce the law (or that its domain of application is limited to that of legally regulated behavior). Empirically, this is simply not the case, as police use the power that is granted to them by statutory law to pursue a range of extra-statutory objectives.14 This includes maintaining order, emergency response, protection, and rescue, and, perhaps most expansively, “brokering and enforcing social cooperation,” especially regarding the use of public space.15 This aspect of policing practice is obviously in tension with the dominant normative understanding of police power. The latter is closely tied to theories of political authority that regard the enforcement of law as the only legitimate basis for the use of force by agents of the state.16 This view follows from a number of different philosophical positions, but one can find a particularly clear version in Kantian theories of law, which draw a sharp distinction between morality and law, conceiving of the former as a system of rules that binds individuals internally, the latter a system of rules that binds them externally. To say that individuals are bound externally is to say that they are given incentives to act in conformity with the law, first and foremost through the threat of punishment in the event of noncompliance.17 Thus the use of force against individuals by agents of the state is justifiable only when it is used to secure compliance with a justifiable system of publicly promulgated laws.18 Although the police are often described informally as being responsible for “enforcing” these laws, technically punishment can only be imposed by the judiciary, and is carried out by the correctional system. The primary task of the police is to identify and apprehend individuals who are suspected of having broken the law, delivering them to the judiciary for trial. Thus the police operate at the front end of the criminal justice system, the point at which the enforcement of law is initiated. Secondary tasks then involve deterrence, which involves persuading individuals to obey the law through the threat of apprehension, and, in the rarer case, direct interdiction, which involves stopping individuals who are in the midst of committing an infraction. This way of thinking about state coercion gives rise to what can be characterized as a legalist theory of policing, on the grounds that it restricts the use of force by police to direct enforcement of the law.19 This implies that the police should have no power over the ordinary citizen, so long as the individual is not currently acting in an unlawful manner and is not suspected of having committed some other crime. It suggests that, absent some law to the contrary, individuals are under no obligation to speak to the police, to answer any questions posed, to obey their orders, or even to identify themselves, unless there is some direct connection between these actions and the investigation of criminal conduct. Individuals on this view enjoy an extremely broad sphere of liberty—such as the freedom to move at will through public space, to use offensive language or be verbally abusive toward others, perhaps even to brandish lethal weapons—so long as they have not committed any crime and are above any reasonable suspicion of having committed a crime. Public commitment to a legalist theory of policing has been encouraged by certain popular interpretations of the US Constitution, which become apparent when citizens of that country refuse to obey a direct order from a police officer, refuse to identify themselves, refuse to exit their vehicle, or refuse to circulate or disperse in public space, on the grounds that their ongoing activities are not in direct violation of any legal restriction. The situation is significantly complicated, however, by the fact that legislators in jurisdictions in which this view of police authority is widespread have often sought to undermine it by enacting extremely broad laws, which have the effect of legally prohibiting all conduct that is contrary to the will of the police. In other cases, courts have achieved the same effect by recognizing a class of “common law misdemeanors,” thus tacitly extending the criminal law.20 As a result, in some jurisdictions it is an offense to insult or show disrespect to a police officer, to fail to identify oneself, or to obstruct an investigation. Laws prohibiting loitering, vagrancy, nuisance, disorderly conduct, public mischief, and public intoxication can also be used in ways that essentially override any citizen's right to occupy public space. And finally, the offense of failing to obey a police officer—a common feature of motor vehicle law—can be extended to ordinary contexts of interaction. The result is the phenomenon of “overcriminalization,” in which the sphere of individual freedom is essentially extinguished by the legal prohibition of practically all conduct.21 But, of course, in most jurisdictions in which citizens are subject to this sort of overcriminalization, the sphere of individual freedom is seldom extinguished in practice, because the purpose of these laws is not really to prohibit the activity in question, but rather to grant police the discretion to control members of the public in response to situational exigencies. The important point, for our purposes, is that the existence of these broad prohibitions can render the legalist theory of police power trivially true. By making it the case that everyone is always breaking some law, any exercise of police power can be characterized as mere enforcement of the law. And yet the legal form clearly serves to conceal the true character of the underlying practice, which is not to arrest everyone who commits an infraction. While the police do engage in some by-the-book enforcement of statutory law, especially with respect to indictable offenses, they also use the power that is conferred upon them by statutory law to pursue other, extra-statutory objectives. They do so with the full knowledge and support of legislators, which is one of the reasons that the latter often respond to court-imposed restrictions on police power by crafting laws that expand the scope of police discretion. As we shall see, there are rival accounts of this “other objective” that police pursue, but before getting to that, it is important to consider why the legalist model of policing is not more widely embraced. Although philosophers sometimes speak of law and morality as though they were quite distinct, when one turns to the social reality of crime and enforcement it is difficult not to be struck by the fluidity of these categories. Emile Durkheim, in his pioneering sociological analysis of crime, argued that the regulation of social action should be understood in terms of a single category of rule, that of a social norm.22 The most important feature of norms is that they are all enforced, although some more obviously than others. This is because the punitive sanctions that are evoked by nonconformity have a socializing effect, by virtue of which the norm becomes internalized by individuals over time. Through this process of socialization, individuals acquire both intrinsic and extrinsic motives for compliance. As a result, sanctions become increasingly symbolic, aimed more at triggering internal self-control (as with mockery, humiliation, and moralizing condemnation). Because of this, among well-socialized adults, explicit sanctions in the form of rewards and punishments are reserved for only the most extreme cases, in which more subtle instruments of social control have failed. Moral norms, on this view, do not form a natural kind, but represent merely one end of a continuum.23 This gives them the appearance of being purely inner constraints, despite the fact that they are enforced by social sanctions like all other norms. Similarly with law, conformity is typically elicited through a combination of intrinsic and extrinsic motives. What makes law distinctive is not the fact that it is coercively enforced, since all norms are enforced, but that it is enforced through the organized sanctioning capacity of the state. In the informal social sphere, punishment of norm-violators is decentralized, ad hoc, and often based on withdrawal of cooperation.24 The state, by contrast, regiments this process through a set of formal mechanisms, including written specification of the rules, centralized enforcement by specialized agents, and costly, individually targeted punishment. At the same time, a great deal of the motivation for legal compliance remains intrinsic, arising both from malum in se convictions regarding the specific actions prohibited, as well as generalized respect for the authority of law. There is a complex division of labor involved in maintaining social order. Without some form of constraint, human society would resemble a Hobbesian state of nature, marked by widespread failures of coordination, cooperation, and collective action. The orderliness of everyday life is achieved through conformity to shared social norms, which not only prohibit various harmful or destructive forms of conduct, but also diminish the anxiety and cognitive strain involved in routine interactions. When this functions effectively, we are able to ignore most of the work that is involved in achieving this orderliness. The operations of socialization, symbolic sanctioning, and decentralized enforcement remain largely invisible, like the bulk of an iceberg sitting below the waterline. The law, by contrast, is like the visible portion of the iceberg. And yet, precisely because it is so easily observed, one can overestimate its importance. This dramatically inflates public perception of the efficacy of the sanctions that are imposed by the legal system. Particularly with respect to the criminal law, the vast majority of the population is deterred through a combination of informal social pressure (for example, concerns related to reputation, community standing, stigma, social role, and identity), and moral commitment.25 Fear of punishment is always in the background, but it provides a decisive consideration only with a small segment of the population. Criminologists often illustrate this through an “enforcement pyramid,” which has at its base purely intrinsic motives, then ascends through various mechanisms of informal social pressure, capped off by coercive punishment at the peak.26 The pyramid shape is intended to represent the fraction of offenders who can be brought into compliance without escalation to the higher mechanism. From this perspective, the police can be seen as specialized agents of social control, who are called upon to act when the upper levels of the enforcement pyramid are reached. This naturally makes them the primary agents of law enforcement, but it also involves them in a wide range of activities variously described as “order-maintenance” or “peacekeeping.” This view, which is the one most widely held by those who study the practice of policing, emphasizes the continuity and relations of mutual support between different systems of social control, and, in part for that reason, tolerates a great deal of ambiguity about the proper scope of police power. I refer to this model as communitarian, not only because it underlies most versions of “community policing,” but also because it is in tension with some of the commitments of political liberalism. While the state has long been characterized by its ability to employ coercive force in an organized fashion, the modern period has been marked by a much more ambitious attempt on the part of the state to assert a monopoly on the use of force in society. This ambition was clearly stated by John Locke, who thought that the primary feature of the social contract, through which the sovereign power of the state was constituted, was that individuals would surrender the natural right to the use of force in a punitive manner against one another.27 And yet, even though this ideal was clearly articulated in the 17th century, it did not become an institutional reality in Western societies until near the end of the 19th.28 Prior to that, the violence meted out by the state typically served as a supplement to the relatively high levels of retributive violence occurring in the informal social sphere (with the practice of dueling serving as the most high-profile example).29 The state did not attempt to prohibit this sort of violence until well into the 19th century, a process that went hand in hand with the development of policing.30 That this program of domestic pacification should coincide with the rise of modern policing is hardly an accident, since the state can only aspire to eliminate interpersonal violence once it has the institutional capacity not just to control it, but to offer at least a semi-credible replacement. Retributiveness is a powerful human impulse, which has so far proven resistant to all attempts at eradication. This means that when the forces of “law and order” appear unequal to the task of ensuring that the guilty are punished, members of the public will be inclined to take matters into their own hands. A significant fraction of crime is not first-order social deviance, but rather private vengeance in response to such deviance.31 As a result, the police are always subject to pressure from two directions. From “above” there are legislators and other state officials, who demand that the police enforce enacted laws, while from “below” there are members of civil society, who expect certain performances as a condition of their own willingness to refrain from engaging in private uses of force.32 This demand from below is what accounts for the widely noted phenomenon that the police, apart from the enforcement of statutory law, also act to maintain social order.33 Historically, this police power had an explicit constitutional justification in the relationship between the executive and other branches of government.34 European monarchs in the early modern period were taken to have two domains in which they could act without legislative authorization or oversight. Externally, there was the realm of foreign affairs, including military strategy and the prosecution of war, and internally, there was the “police”—in the original, archaic sense of the term—which involved promoting the well-being of the people and the good order of society.35 Democratic and republican revolutions led to the erosion of autonomous executive power and an expansion of legislative claims, in part because the legislature was seen as the conduit for popular sovereignty, which came to be regarded as the only legitimate basis of state power. This led to a dramatic expansion of the importance of statutory law, although the prerogative of the executive to conduct foreign affairs outside the scope of legislative control has largely been retained. The internal police power, however, fell into constitutional disrepute, leading to its preservation largely as an implicit police practice, given a veneer of legislative legitimacy through overcriminalization. The idea that the police enforce not just laws, but also the social order, sometimes evokes negative associations, and so it is important to be clear about its meaning. Social order, in the generic sociological sense, simply refers to the stability of the institutional systems governing everyday life.36 When private citizens reach the limit of what can be achieved through the informal enforcement mechanisms that are available to them, and, in particular, when they reach the limit of what can be achieved without recourse to force, they call the police. For the average patrol officer, this sort of call—to mediate a conflict between a landlord and tenant that is beginning to get out of hand, to intervene in a domestic dispute that has woken up the neighbors, to disperse a group of young people drinking in the park, to evict a bar patron who is refusing to leave, to deal with a mentally ill person who is scaring passengers at a bus stop—constitutes the overwhelming bulk of police work. When the police are obliged to use force in these circumstances, they appeal to statutory law in order to justify that use of force, despite the fact that the objectives they are pursuing, or the reasons for which they are using force, are often external to anything that is explicitly specified in any statute. As a result, modern policing winds up encompassing an eclectic list of responsibilities that defies easy summarization. (This is one of the reasons that police departments, despite possessing all the appurtenances of modern bureaucracy, are only superficially rule-governed organizations—most police decision-making is in fact driven by situational exigencies.)37 Part of the complexity is due to the fact that prohibiting civilians from engaging in uses of force has downstream effects (many of which were clearly unanticipated by social contract theorists who called for the prohibition). The recourse to force, or the availability of such recourse, has a structuring effect on other social practices, much of which escapes notice simply because, when effective, it results in force almost never having to be employed. For example, as Egon Bittner observed almost a half-century ago, there is a “profound misconception” about policing involved in the claim that, because there is substantial overlap between the tasks undertaken by police and social workers, the former could be replaced by the latter.38 The problem is not just that routine mental health and domestic disturbance calls have the potential to erupt into violence. It is also that the availability of recourse to force provides a form of decisiveness in action that is otherwise difficult to obtain. The central limitation of dialog and argumentation is that it can go on forever. At some point, however, discussion must cease and action must be taken. As Bittner emphasizes, citizens often call police in order to deal with situations that call for such decisive action.39 Furthermore, police intervention is often valued precisely for that reason (which explains, inter alia, why the police are involved in all emergency situations, regardless of the underlying nature of the problem). Because of these peculiarities of the role, the police stand in complex relationships of dependence with the communities that they serve. On the one hand, the effectiveness of legal regulation, and the capacity of the police to enforce statutory law, clearly depends on the quality of the underlying social order. This is a major theme in the work of Jane Jacobs, who emphasized that “no amount of police can enforce civilization when the normal, casual enforcement of it has broken down.”40 This is not just because police rely on members of the community to provide information, but also because the most important forms of deterrence are achieved through the informal social order. The real panopticon, Jacobs observed, are the “eyes on the street” of neighborhood residents, shopkeepers, and pedestrians, who create security simply by observing the comings and goings of others.41 By comparison, the police are extraordinarily limited in their ability to detect and deter crime. Yet, just as the police rely upon the informal social order to achieve compliance with the law (the way the visible part of the iceberg is supported by the larger bulk that rests below the waterline), members of the community depend upon the police to contribute to the maintenance and reproduction of the informal order, by intervening in situations that are beginning to get out of hand, or that escape the regulatory capacities of civil society. Police in these cases use force to supplement the informal, non-violent sanctions that are available to private individuals. This is where the most discretionary aspects of policing arise, because the patrol officer is forced to determine whether a situation is one that can be handled informally by the parties involved (perhaps once everyone is calmed down), or whether it requires formal intervention (and if so, what degree of sanction). Consider the case of individuals drinking in the park. In most jurisdictions, consumption of alcohol outside of a private home or a licensed public establishment is prohibited. And yet these laws are seldom enforced universally, but are merely used by police to break up groups whose behavior poses some other threat to public order (perhaps, but not necessarily, due to the influence of the alcohol consumed). The fact that some people are breaking the law by drinking in a public park says practically nothing about what the appropriate police response should be. Is it a young couple having a picnic, enjoying a glass of wine? Is it retired men from the neighborhood gathering in the afternoon? Is it a group of teenagers after dark? These are very different cases when it comes to assessing the disruptive potential of their behavior. Are they drinking socially, or are they getting drunk? And how are they drinking? Are they doing it discreetly, for their private enjoyment, or brazenly, in a way that shows disdain for the law? Is their presence intimidating, or interfering with other users of the park? And if intervention is warranted, should the alcohol merely be confiscated and the group ordered to disperse? Or should some or all be arrested? And once brought to the station, should they be released or detained overnight? An affront, as it is used here, is a challenge to the policeman's authority, control, and definition of the immediate situation. As seen by the police, an affront is simply a response on the part of the other which indicates to them that their position and authority in the interaction are not being taken seriously.43 Equally important is the role that judgments of respectability play in determining police response.45 Generally speaking, police are more likely to intervene, and to intervene punitively, when the person causing trouble belongs to a less respectable social category, just as they are more likely to take complaints seriously when they come from respectable individuals. The respectability of the “ordinary, law-abiding citizen” involves a generalized willingness to conform to social expectations and to defer to legitimate authority, and so is impaired by indications of either a history of, or propensity toward, social deviance. Thus the police focus their attention on individuals belonging to classes who pose the greatest threat to the social order. The most obvious targ