by Barry Friedman, Jacob D. Fuchsberg Professor of Law at New York University School of Law, Director of the Policing Project and author of the forthcoming book, Unwarranted: Policing Without Permission (Farrar Straus and Giroux 2017).
In light of the deeply troubling events of the last couple of weeks—the shootings by police of Alton Sterling and Philando Castile, and the shooting of police officers in Dallas and Baton Rouge—the country rightfully is preoccupied with how to discuss, and address, issues of policing and race.
Here, I want to turn to law—which has both exacerbated the problem, and can perhaps offer a somewhat novel solution for how to address it.
First, the problem. Many people today suggest that one of the reasons why policing falls most heavily on communities of color is unconscious racial bias, or “implicit bias.” There is growing evidence in support of the claim. This is important for two reasons. First, it helps us understand that much of what is happening, or has happened, may have occurred in the absence of intentional racial animus. And second, it explains how—nonetheless—these many individual incidents can together add up to be a national crisis. The phenomenon of unconscious racial bias suggests that when officers exercise their discretion in individual cases, they tend—subconsciously—to be drawn to over-enforcement against racial minorities, which in the aggregate can produce observable and troubling racial effects.
To the extent that this indeed is the problem, it is instructive to see how much law is to blame here. One reason why individual biases have such a pronounced effect in the criminal justice system is because of the enormous discretion police officers possess—too much of which is the result of ill-advised Supreme Court decisions. The justices consistently resist adopting bright line rules that limit discretion, while putting such rules in place to grant it. The Supreme Court has said officers may arrest for any offense, no matter how small or insignificant. The Supreme Court also has said pretextual stops—meaning stops that are ostensibly about traffic enforcement but really are just an excuse to look for drugs or other evidence—are just fine. The Supreme Court has upped the incentives to conduct stops and arrests by allowing numerous other actions to follow, be they frisks or full-blown searches. Even if a stop, search or arrest violates state law, the justices have held that any evidence that is obtained still is admissible. The net result is enormous over-enforcement, which the data makes clear has occurred in racially discriminatory ways.
Then, as is all too familiar, under Supreme Court doctrine it is almost impossible to hold a government liable under the Equal Protection Clause when these practices fall disproportionately on people of color.
This is obviously a deeply regrettable state of affairs. I want to suggest that there is a response to the problem that itself may rest in law—in legal processes at any rate—but very different ones than what often get our attention. The place to look is not to the courts, but to popular democratic lawmaking bodies.
In order to see why this is the solution, consider this simple fact: we don’t regulate policing like the rest of government. The rest of government runs on rules, which are in place before officials act, which are public (i.e. transparent), and which are formulated with public input. As much as possible we engage in something like cost-benefit analysis to assure those rules do more good than cause harm. But this isn’t what we do with policing. With policing we rely on back-end solutions such as Inspectors General, civilian review boards, and—yes—judicial review. The latest back-end solution is having body camera footage available after a critical incident.
While all these back-end solutions are important, they cannot serve as a substitute for front-end policy-making. The country is suffering from a crisis of legitimacy and trust around policing. So concluded the President’s Task Force on 21st Century Policing, a conclusion that also has been met with wide acknowledgement.
Simply put, there is far too little democratic engagement around policing. That is one reason protestors are in the streets: Where else are they to go exactly? And that is why there is such a deficit of legitimacy and trust. Popular involvement is one important part of what legitimizes government.
And note: although democratic involvement in policing can occur in legislative bodies, that is not the only—nor always necessarily the best—answer. We need to start thinking of policing agencies as the administrative agencies they are: they too can adopt rules in a way that involves public participation.
Front-end lawmaking can even assist courts in dealing with issues of race and policing. Although the courts have done a miserable job of regulating policing, in fairness it is a difficult task. Popular lawmaking can set rules for courts to enforce, and signal to courts that change is needed.
For what it is worth, the Policing Project at New York University School of Law is helping law enforcement agencies and communities address this democracy deficit in policing. (Forgive the shameless plug; this point is the basis for a book that I have coming out this February, entitled Unwarranted: Policing Without Permission.) The Policing Project is working hand in hand with both departments and their communities in cities across the country to promote democratic engagement around policing. We are exploring a variety of models.
Will popular engagement solve all of our issues with policing and race? No. In some ways, candor requires conceding, popular involvement can be problematic when it comes to race. But that need not be the case. Not if departments involve the public in making decisions about specific practices (instead of simply asking “should we reduce crime at all costs?”), and not if the communities most affected by policing practices, and in need of professional policing, are involved in the decisions.
Law has had a big hand in getting us where we are on race and policing. That is an unfortunate thing for a lawyer to say, but it is true. But law offers a solution as well. We should grasp it.