The United States is in the midst of a fraught debate over the role of police. Can law enforcement effectively combat crime while building trust in the communities it aims to protect and serve? Where does the institutional legitimacy of police departments come from? What should their priorities be?
The deaths of unarmed African-American men at the hands of the police, particularly Michael Brown and Eric Garner in 2014, have sparked protests around the country and questions about whether the culture within law enforcement leads to deadly confrontation. Those who fear that police resort to gunfire too readily found confirmation in the words of an officer facing manslaughter charges for shooting an unarmed man: “I’d rather be tried by 12 than carried by six.”
But the officer’s words also illustrated a sense of siege among police officers, and a feeling that caution in using deadly force can put them at risk. The number of police officers dying in the line of duty has been trending down since the 1970s, but of the 135 who died in 2016, 21 died in a spike of ambush-style attacks, according to National Law Enforcement Officers Memorial Fund data.
Yale Insights talked with Tracey Meares, the Walton Hale Hamilton Professor and director of the Justice Collaboratory at Yale Law School. Meares was a member of the Task Force on 21st Century Policing created by the Obama administration to recommend ways to help communities and law enforcement agencies strengthen trust and collaboration, while continuing to reduce crime.
Q: What’s the role of the police? Has it changed over time?
It used to be that police conceived of themselves as the institution that brought offenders to justice. You do something wrong. We catch you. We bring you to court. You are adjudicated a wrongdoer. That activity may result in crime reduction, but bringing people to justice doesn’t necessarily have to deter them from committing a crime in the future nor does it necessarily deter other people who see this process happening from engaging in crime.
Only in the last 40 years or so have police started to understand themselves as crime fighters where everything they do should be directed toward reduction of crime. One consequence of that has been proactive policing tactics, sometimes very aggressive, best exemplified by the stop-and-frisk program that New York experienced for several years.
Research shows that there is a relationship between that tactic and some small level of crime reduction, though it’s not clear how long it lasts. But stop and frisk is also associated with profound decreases in public trust in police.
In the President’s Task Force Report, we talk about going from a warrior mindset, focused on aggressive tactics to reduce crime, to a guardian mindset, thinking about the ways in which police interact with members of the community in ways to raise their trust in the agency. Guardians are not warriors; they’re concerned with assisting members of communities in their own goals and projects.
Q: The violent crime rate has been trending down for decades. What has happened to the public’s perception of the police?
We have lots of data, not necessarily deep but broad, on how people have viewed police, their confidence in police, how much they support them, trust them, and so on. What we’ve noticed is that as crime has gone down over time, as police have paid much more attention to their role in crime reduction, the public’s view of the police, in terms of trust and confidence, has remained the same.
That’s a puzzle. If the public wants police to engage in crime reduction and crime has gone down, why is it that our level of trust and confidence in the police has not gone up?
Q: Why is there such a disconnect?
People’s assessments of the extent to which they trust in legal authority is what a social psychologist calls legitimacy. We know from decades of research that what motivates people to come to these conclusions are the extent to which actors are procedurally just. People care a lot about what we call voice. That is, having the opportunity to tell your side of the story in an interaction with a legal authority, like a police officer or, at a higher level, having input into the agency’s priorities and strategies.
Second, people care a lot about the extent to which decisions made by the legal authorities are fair. Are decisions grounded in fact? Is the process transparent? Are decision makers neutral and free of bias? Are they good decision makers?
Third, people care a lot about how they’re treated. They want to be treated with dignity, respect, and concern for their rights.
Last, people look for something called motive-based trust. Can I expect you, as a legal authority, to deal with me benevolently in the future? How are you treating me and how have you treated people like me in the recent past and over time?
I like to summarize all four of these factors in the following way: do you think I count? I can’t read your mind, so the only way I can do that is by assessing how you’re treating me and other people like me. This sense of counting matters much more to people than how effective police are at reducing crime or whether the decisions that police make actually benefit them personally.
Q: How does that play into police reform?
If engendering legitimacy through procedural justice is a priority, you are going to conceive of yourself as a guardian and not a warrior. You are going to pay much more attention to these factors, not only in determining the policies of how you’re treating members of the public, but also how you treat the workers in your own organization.
Procedural justice has to be applied consistently. It’s hard to expect police to treat members of the public in ways that members of the public will conclude are legitimate if within their own organizations those who manage and supervise them are not giving them voice, treating them fairly, and treating them with dignity and respect.
It means that you think much more about the extent to which crime reduction is a goal. For example, in New York, Mayor Bloomberg and Police Commissioner Ray Kelly framed stop and frisk in terms of a specific cost-benefit analysis: We’re stopping and frisking hundreds of thousands of people but fewer African Americans are dying. The crime reduction justified the procedure. If they considered other costs, it might have led to different choices. A procedural justice or legitimacy-focused approach would clearly acknowledge the cost of the strategy, even while acknowledging the potential benefits of crime reduction.
Procedural justice conceives of the project of law enforcement as a co-production between police and the communities that they serve. If you are actually seeking public trust and perceptions of legitimacy, you will understand as an agency leader that this is not a project that you can undertake for those people; it must be done together with them.
Q: Could you explain the idea of a third Reconstruction and how it ties to what we’ve been talking about?
This is an idea that a few people have talked about in different contexts. Khalil Gibran Muhammad has talked about it in his work. William Barber, who is a well-known civil rights leader out of North Carolina, has discussed it. The idea is that the first Reconstruction followed the passage of the 13th, 14th, and 15th amendments in which African Americans, formerly enslaved, were formally made legal citizens in this country. Some folks have called the Civil Rights Movement that led to the Civil Rights Act and the Voting Rights Act a second Reconstruction, my colleague Bruce Ackerman among them. They argue that the formal legal establishment of citizenship through the 13th and 14th and 15th amendments wasn’t enough. The 15th amendment, presumably, allowed black men the right to vote, yet we needed the Voting Rights Act to make that a reality, and the Civil Rights Act for more economic and social justice.
Here we are in 2017 and people still believe that we have work to do. What I find interesting thinking about this moment as the third Reconstruction is that the leading edge is around how people are treated by the police. The Black Lives Matter movement is concerned with issues beyond how people are treated by the police, but that was a focal point around their organizing. What that tells us is that how people are treated by police every day goes a long way to define who we are as citizens.
The idea of the third Reconstruction is, if we are going to achieve a world in which all people in the United States are fully-fledged citizens, accepted as such, deemed as such, treated as such, one way to test whether that’s true is how they are treated by policing agencies. That ties back to legitimacy and procedural justice.
Q: Are there examples of progress?
If the measure is legislation analogous to the 13th, 14th, and 15th amendments or to the Civil Rights Act and the Voting Rights Act? Is there legislation ensuring that the police act with legitimacy and procedural justice as priorities? No.
But you might not need formal legislation. After the social unrest that followed Michael Brown’s death and Eric Garner’s death and the establishment of the President’s Task Force, some states have passed reform bills fundamentally changing how police are trained. There’s work being done to let communities be much more involved in oversight of policing agencies. Los Angeles and Seattle have recently established civilian oversight commissions.
Chicago is in the midst of paroxysms trying to figure out how to move ahead after the Civil Rights Department issued its letter finding constitutional violations. The city’s own police accountability task force had similar findings.
This issue is a really fertile site for both recognizing the ways in which people aren’t treated equally as citizens and for laying out the work that’s necessary in order to reach the goal of the third Reconstruction.
Q: What’s the role of the federal government in police reform?
We know that there are things that the federal government can do because we’ve just experienced them over the last three or four years. But policing is fundamentally a state and local effort. In contrast to England or France where there is one national policing agency, there are 18,000 policing and sheriff agencies in this country. We don’t have a single policing college that every police officer attends, which is true in the UK. We have multiple standards, not only for every city—sometimes within municipalities there are multiple organizations with different standards.
That’s a challenge for doing top-down reform, but it means that the people who are ultimately in charge of getting this work done is us. As long as we care and we make sure that those who are in charge of selecting police executives care, by making it part of elections, then I think there’s every reason to think that we can continue to make progress.
Q: What are the most effective levers and incentives for driving change?
The federal government can be quite effective because the federal government has resources. The carrot tends to be more effective, at least in my own experience, than the stick. It’s important for the Justice Department’s Civil Rights Division to call out egregious misconduct, which it does when it does a Pattern and Practice Consent Decree under Section 14141. But I don’t think that’s where we get the most change. We get the most change through more collaborative efforts.
In the past four years, we saw the most progress through the Department of Justice’s Community Oriented Policing Services (COPS) office partnering with departments that actually sought to work on collaborative reform, in contrast to the places that the Civil Rights Division sued under the Consent Decree structure.
Q: What role does the culture within a police department play in this?
The culture is everything. Most of the things that I’ve been talking about, ultimately, are about trying to change culture on the ground. The head of an agency certainly sets the tone, but it’s also necessary for the immediate supervisors of the folks on the ground to have their incentives appropriately aligned through review structures, promotion structures, and the like. That’s where some of the hardest work is done.
The places where reform takes hold most quickly are the places where the agencies are able to, or because of scandal, fraud, or bankruptcy were required to, make wholesale change in personnel very quickly. There are a few agencies where literally half of the personnel turn over in a short time, and we’ve seen very profound change.