POLICE WORK, CRIME CONTROL, AND JUSTICE: WHAT IS APPROPRIATE POLICING?

In numerous American cities, recent discussions in popular media and in city councils have centered on policies aimed at “defunding” or (at the extreme) abolishing municipal police agencies. Lethal police shootings of often unarmed black citizens, urban riots, and social activists’ accusations of police racism have spurred civic leaders, politicians, and others to reconsider the nature of policing in American society. While only extreme critics advocate actually eliminating police agencies – a position rejected by the vast majority of Americans – the notion of re-thinking police work to achieve a closer alignment with the needs and desires of those being policed has gained political traction. As a practical matter, specifying the nature of “appropriate” police work is complicated and difficult.         

Historically, expectations placed on police agencies have always been broad, contradictory, and sometimes even ill-conceived in their legitimacy. For instance, as immigration increasingly transformed 19th century cities such as Boston, New York, and Chicago, city leaders obliged municipal police officers to not only provide crime control and citizen safety, but also to serve as the enforcement arm of ward bosses and the local political machine. Police were expected to favor their bosses’ business allies and to punish commercial rivals. At the start of the 20th century, as the working classes began to organize and threaten manufacturing and property interests, the moneyed classes also expanded the nature of police work. In addition to the apprehension of street hoodlums and other lawbreakers, police responsibilities now included the suppression of organized protests and unionizing campaigns, the repression of strikes, and the containment of similar forms of social unrest. These tasks often pitted a white, native-born police force against an ethnically diverse collection of low-wage immigrants and migrant blacks, and seeded long-lasting suspicions and enduring animosities between the police and the poor.   

In the 1950s and 60s, far-seeing police administrators attempted to insulate their agencies from undue outside pressures, and to transform their organizations into departments focused on public safety and professional crime-fighting. Policing began to develop a “protect and serve” focus. Despite these efforts, hostility continued to characterize police / citizen interactions in poorer neighborhoods and in minority districts, where residents regularly complained about unjust or inappropriate police actions. Thus, the current dissatisfaction roiling police work is neither new nor particularly surprising, but a development having an extensive history and deep roots.     

Multiple psychological explanations suggest why this on-going antagonism continues. Self-fulfilling prophecy – where both parties anticipate an aggressive encounter, and unconsciously behave in ways that bring about the very aggression they both anticipated – provides one possibility. Perceptual myopia – seeing a situation from just one perspective – offers another. Police and civilians likely perceive the kind of actions that represent legitimate crime-fighting behaviors differently. For example, the 19th century police officers involved in disrupting the street meetings and public protests of unruly factory laborers doubtless saw themselves as legitimately engaged in executing riot and mob control – valid policing functions. It is unlikely that the laborers and workmen shared this perspective. Perceiving themselves as merely agitating for the redress of an exploitive and unjust economic system, they undoubtedly regarded the police actions as an unacceptable use of police authority. This suggests that, before policing is accepted as legitimate, citizens must see police actions as both legal and appropriate.        

In minority communities especially, a significant number of residents seem to believe that many police actions, even if legal, are nevertheless inappropriate and unjust. Indeed, such perceptions fuel the “abolish / defund the police” movement. The common strategies proposed for remedying these misperceptions – increasing community involvement in policing; restricting officers’ use-of-force options; separating nonessential police tasks from essential crime-control activities – assume that police and citizens see police work identically and agree on what they expect from it. This assumption is often unfounded, not only because (as suggested above) police and citizens assess the appropriateness and “justness” of a policing action using different perspectives, but also because the American justice system itself is ambivalent about the nature of appropriate police behavior.

Results-Oriented Policing versus Rights-Oriented Policing

Herbert Packer, of Stanford University, highlighted this ambivalence in a classic article published in the University of Pennsylvania Law Review. He argued that two distinctive sets of demands influence policing in the United States, and that significant tension exists between the two sets. One set of demands stresses community safety and protection, and wants a policing approach that emphasizes crime control and the quick removal of lawbreakers from the community. This type of policing – results-oriented policing – values police work that promptly addresses unlawful behavior and leads to the speedy and efficient resolution of criminal wrongdoing.

To illustrate, consider the criminal processing stages that typically involve police work – pre-arrest investigation; arrest; and post-arrest investigation. During pre-arrest investigation, results-oriented policing exploits the accumulated experience of police (and the administrative expertness of prosecutors) to produce an early informal judgment of probable guilt. At this stage, the probably innocent are eliminated from further consideration, and those individuals remaining proceed through the next two stages under what Packer describes as a “presumption of guilt.” This means that once the police informally conclude that the current evidence justifies holding a suspect for additional consideration, all subsequent police activity occurs with the idea that the person is likely guilty. While potentially open to problems of faulty investigation, racial animosity, and other biases, this pragmatic orientation nonetheless delivers efficient policing. By concentrating focus and resources on the most likely guilty, the approach moves crimes and criminals through the justice system comparatively quickly. Further, when the combined expertise of police and prosecutors accurately assesses likely guilt, the approach typically generates outcomes that maintain justice and facilitate social control.

In contrast, the other set of demands wants a policing approach that insists on a presumption of innocence throughout all stages of police work. The approach explicitly acknowledges the inherently adversarial nature of policing and, to keep injustices to a minimum, relies on the legal safeguards of “probable cause,” “due process,” and “the right to counsel.” It stresses procedural correctness, and makes no allowance for insights and intuitions learned from past policing experience if such insights or intuitions imply a violation of individual rights. This type of policing – rights-oriented policing – places a citizen’s constitutional protections above apprehending even those clearly guilty of criminal behavior; and by creating multiple grounds on which the actions and findings of the police may be challenged, it typically results in more drawn-out investigations, fewer arrests, and less successful crime control overall. 

Day-to-Day Policing

These two approaches present decidedly different views of appropriate police work, with one stressing police expertise and judgment to process the likely guilty, and the other stressing constitutional safeguards and individual rights to protect the possibly innocent. Both orientations influence day-to-day policing, with police behavior shifting from one to the other depending on the particular circumstances of the questionable activity, and the tendencies of the individual law enforcement officer. For example, even with a rights-oriented policing approach, law officers regularly impose on the rights and liberties of law-abiding individuals. Every time they stop and question otherwise peaceful citizens who have merely aroused suspicion for some reason, such stops implicitly violate the presumption of innocence and individuals’ right of free movement. Reflective of results-oriented policing, these police actions are clearly essential for solving crimes and apprehending criminals. More generally, effective police work always demands that an officer weigh and balance an individual’s security and privacy rights against the need to violate those rights (or at least be perceived as violating those rights) when detaining, investigating, or arresting. Not surprisingly, detainees commonly assert that police rarely achieve the appropriate balance, and often infringe on rights and freedoms unnecessarily – that the police habitually use their authority simply to harass and intimidate.       

With its heavy reliance on the judgment and expertise of police and prosecutors, results-oriented policing places little credence in such assertions and they typically receive (or are perceived as receiving) perfunctory investigation. Rights-oriented policing, stressing police work’s basically oppositional nature, takes such complaints seriously, and relies on the multiple procedural hurdles noted earlier to minimize police overreach and possible injustice. As a consequence, police work moves more slowly with reduced crime-control efficiency As Packer observes, “Facts can be established more quickly through interrogation in a police station than through the formal process of examination and cross-examination in a court….”

What Kind of Crime Control and Justice Is Proper?

As suggested above, the country’s current policing approach to justice and crime control consists of a blend of both results-oriented and rights-oriented policing, a combination whose results frequently satisfy no one. Police (and many middle-class citizens) often are frustrated by rights-oriented procedural limitations that interfere with the apprehension or conviction of the obviously guilty; while poorer citizens and minorities are equally infuriated by results-oriented policing actions that impose on their presumption of innocence. Further, the conflicting nature of the two police orientations virtually assures that disagreements concerning the appropriateness of substantial numbers of police interactions and behaviors will occur.

The American justice system has traditionally favored the protection of individual rights over the apprehension of criminals. This rejection of the crime-minimization benefits that results-oriented policing can provide – if it involves short-circuiting individual protections – is extremely strong. For example, should police procedures involve an improper interrogation, a questionable search, or some other prohibited action, any evidence obtained – even evidence that provides objective proof of guilt – is likely to be challenged and dismissed in court. Thus, the system so favors the safeguarding of individual rights that it is sometimes willing to treat the factually guilty as legally innocent. In fact, this favoritism is captured in the conventional wisdom that it is better for ten guilty men to go free than for one innocent individual to be jailed. Despite the danger that such wisdom may offer a flawed moral calculus (in that it deprives ten victims of due justice) if this is an acceptable tradeoff, two significant implications follow. The first deals with policing resources and the second with the psychological adjustments rights-oriented policing demands of officers.

First, as the nature and number of rights-oriented policing limitations expand, the policing resources needed to contain criminal behavior and apprehend criminals will also need to expand. As Packer suggests, the detailed and time-consuming legal hurdles inherent in rights-oriented policing decrease the system’s capacity to investigate, apprehend, and dispose of criminal offenders. To maintain the same level of policing efficiency (e.g., number of arrests; solved cases, etc.), the system will require additional support in the form of more officers for investigative arrests and more dollars for administrative documentation. Further, if society begins to classify previously tolerated behaviors (e.g., hate speech; gun ownership; mask-wearing defiance, etc.) as criminal, the additional support needed is likely to be substantial.

The second implication involves convincing police recruits and law enforcement officers to adopt the mental image of the job that rights-oriented policing implies. To a degree, this mental transformation is already occurring within the police community, as the profession debates the appropriateness of two different mindsets – “warriors” versus “guardians.” Roughly aligning with results-oriented policing, the warrior mindset emphasizes crime control as policing’s fundamental mission, and encourages police officers to see themselves as “soldiers” engaged in potentially lethal crime-fighting battles. The mindset stresses officer safety, and seems appropriate when officers face dangerous circumstances. In such situations, they need to have mental hardness and a never-give-up attitude if they are to defeat violent lawbreakers and prevail. Nonetheless, despite acknowledging that any police-citizen encounter may become deadly, the vast majority of such encounters are not violent, suggesting that the warrior concept provides a poor mental image of police work.

Roughly aligned with rights-oriented policing, the guardian mindset places service over crime fighting, and encourages police officers to see themselves as “servants” engaged in protecting citizens rather than battling them. Reflecting the idea that truly effective policing requires public approval of police action, the mindset implies that relationship-building between the police and the community is policing’s most essential mission.

Both rights-oriented policing and the guardian mindset call for a substantial reshaping of police work’s traditional crime-centered focus, modifications that many police officers – and even many citizens – will likely find questionable. Nevertheless, proponents of this type of re-thinking argue that policing that sees every citizen as a possible enemy is a core reason for community non-cooperation, and that such noncooperation unnecessarily makes policing more dangerous and more difficult. Further, regardless of the suitability of rights-oriented policing for impacting crime, current events – municipal leaders’ passive acceptance of violent protests, demonstrations, riots, and burnings – suggest that this type of hands-off policing will continue. The ultimate appropriateness of such policing remains an unanswered question, but one that surely will impact each of us as policing adjusts to the emerging new balance between results and rights.

Donald J. Campbell, Ph. D.
February 2021