There are 18,000 law enforcement agencies in the nation but only one constitution. As the “secular bible” of the land, the US Constitution is binding on every law enforcement agency—federal, state, and local—and on each of the nation’s 1 million sworn officers. All people, whether in huge urban centers or tiny rural hamlets, are entitled to the full protection of the country’s most basic laws, its civil liberties. Yet, as we have seen, there is evidence of patterned police abuse throughout the United States. The costs of this abuse, in lives lost, violations of human rights, strained community-police relations, and civil-suit settlements (over $1 billion in just ten cities, in the past five years) are truly staggering.
We must turn, I believe, to the Department of Justice to operationalize law enforcement’s upholding of the Constitution.
When Thomas Jefferson wrote, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness,” the Second Continental Congress was seeking to “consecrate” a future of specific, permanent, inviolable liberties for all citizens.
The United States Constitution, introduced eleven years after the Declaration of Independence, was meant to govern, not merely guide, the everyday work of those who would become the nation’s police officers.
Although police recruits receive instruction in constitutional law during their academy training, the workplace “acculturation” process soon begins eroding any postgrad zeal for the deliberate practice of safeguarding civil liberties and human rights. Such is the way of the cop world.
New Ferguson police officers, for example, are given forty-one hours of constitutional law instruction, including “an explanation of the significance of the U.S. Constitution and the Bill of Rights.” This happens during their 916 hours at the St. Louis County and Municipal Police Academy. But, as has been made clear in “The Ferguson Report: Department of Justice Investigation of the Ferguson Police Department,” published by The New Press (with an excellent introduction by noted civil and human rights attorney Theodore M. Shaw), the city’s new cops are quickly absorbed into a culture that is both “banal and toxic.”
What happened in Ferguson, what is happening throughout the nation, is not good for the country, and it’s not legal. The federal government—with respect, but no apologies, to my libertarian friends—is the logical place to turn for leadership, and compliance.
After the Michael Brown killing, the uprising in Ferguson, and the many other controversial deaths at the hands of police, President Obama created a task force on December 18, 2014, whose purpose was to “strengthen community policing and trust among law enforcement officers and the communities they serve—especially in light of recent events around the country that have underscored the need for and importance of lasting collaborative relationships between local police and the public.”
Members of this distinguished body held “listening sessions” and teleconferences with the public. They took testimony from law enforcement, critics, academics, and experts, and they solicited and received voluminous written comments. In its final report, issued May 2015, the task force divided its recommendations into six “pillars”:
Building Trust and Legitimacy. Promoting trust and ensuring legitimacy through procedural justice, transparency, accountability and honest recognition of past and present obstacles.
Policy and Oversight. Developing comprehensive and responsive policies on key topics while also implementing formal checks/balances and data collection/analysis.
Technology and Social Media. Balancing [the] embrace of technology and digital communications with local needs, privacy, assessments and monitoring.
Community Policing and Crime Reduction. Encouraging implementation of policies that support community-based partnerships in the reduction of crime.
Training and Education. Emphasizing the importance of high quality and effective training and education through partnerships with local and national training facilities.
Officer Wellness and Safety. Endorsing practices that support officer wellness and safety through the re-evaluation of officer shift hours and data collection/analysis to help prevent officer injuries.
The group presented fifty-nine concrete recommendations. Anyone interested in police reform would do well to give it a thorough read. I’m generally supportive of those recommendations, and generally opposed to Tim Lynch’s position, as expressed in Cato at Liberty:
"I want to highlight the numerous ways in which the [presidential task force] report would expand the role of the federal government. By way of background, policing is supposed to be the near-exclusive province of state and local government under the U.S. Constitution."
It’s reasonable to expect libertarians like Lynch to oppose what they (and most Republicans) call President Obama’s “big government” agenda. But it is also reasonable, I submit, to ask how long we, as a nation, will continue to permit policing to be the “near-exclusive province of state and local government under the U.S. Constitution,” when so many of those same agencies as a matter of course violate the letter and spirit of that very document.
I believe the president’s task force, for all its fine, historic work, falls short of the bold institutional changes necessary to solve the country’s “police problem.”
I believe enjoyment of safe and healthy neighborhoods, homes, schools, places of work, and all other public and private spaces is an essential human right; and that the police and the citizenry of every political jurisdiction have an interdependent responsibility, and opportunity, to create and sustain these safe communities.
Informing the sweeping recommendations that follow is an asserted moral imperative that the federal government set and enforce standards for policing in America—much as it has done for air traffic control through the Federal Aviation Administration, agricultural products through the US Department of Agriculture, and pharmaceuticals through the US Food and Drug Administration.
Unlike the president’s task force recommendations, which, of necessity, speak of what the president, Congress, law enforcement, community-based organizations, and others should consider, the following proposals are framed as initiatives of a proposed aggressive populist campaign aimed at what the aforementioned individuals and groups must do in order to fundamentally reform American policing:
1. The campaign will persuade Congress to pass legislation transforming the Department of Justice’s traditional, largely reactionary police accountability role to one that sets and enforces binding national standards for police conduct. Such standards will govern police hiring and training; use of force policies and procedures; stop-and-frisk and arrest standards and procedures; investigations into use of force; ethical conduct; leadership and supervision; citizen complaint policies and practices; and citizen oversight.
2. DOJ will establish a program of standards-based certification of both law enforcement agencies and individual officers and will exercise concomitant authority over decertification, based on established cause, of both agencies and individual officers.
3. Special, federally trained and certified teams of regional (not federal, not local) investigators will investigate all homicides at the hands of police, including in-custody deaths, regardless of circumstances. Independent prosecutors will replace grand juries in all such cases. Criminal proceedings, if justified by the facts, will be heard by local courts and in accordance with existing rules of evidence. Moreover, all local, state, and federal law enforcement agencies will report every officer-involved shooting and in-custody death and injury to the Department of Justice, which, in addition to serving as a clearinghouse for statistical data, will order investigations, as appropriate.
4. Every police officer in the country will undergo intensive, ongoing classroom and “experiential” training in shoot/no-shoot scenarios; body-camera policies and procedures; use of less-lethal weapons and other defensive tactics; nondiscriminatory police practices; crisis intervention; de-escalation techniques; response to civil disorders; ethical behavior; and policing in a democratic society. Citizens will be invited and encouraged to attend training sessions, and local jurisdictions will be obligated to welcome and accommodate them.
5. Citizens will be involved in all aspects of police operations: policy making; program development; police oversight; use of lethal-force review panels; police officer recruitment; candidate screening and hiring; academy and in-service training; co-planning, co-preparation, and co-policing of all scheduled and spontaneous events that carry potential for neighborhood and citizen-police conflict.
6. The Department of Justice will, in conjunction with community activists, community-based organizations, representatives of local police departments, academics, and subject-matter experts, develop and host a national, ongoing community-police leadership academy for America’s promising beat cops and detectives.
7. Congress—with the grassroots support of the people—will end the War on Drugs and replace prohibition with a rigorously enforced regulatory system, thereby dramatically reducing mass incarceration, particularly of young people, poor people, and people of color.
8. The tens of billions of dollars saved by ending the drug war will be used in three ways: to finance a drug-use regulatory system and provide resources for local drug education, abuse prevention, and treatment; to underwrite the costs of a comprehensive realignment of Department of Justice functions and resources; and to develop and enforce constitutional standards of police performance and conduct in every political jurisdiction throughout the country.
Obviously, this “manifesto” rejects a “tweaking,” “tinkering,” or otherwise incremental-improvement approach to policing in America. It is, rather, a demand for an exhaustive overhaul of the institution, as we know it. If I thought for a moment that our nation had the financial means, legal basis, and political will to “federalize” the institution—along the lines of the United Kingdom’s Metropolitan Police Service—I would urge that course.
There is the matter of that pesky Tenth Amendment, namely: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the States respectively, or to the people.”
The British system, while far from perfect, encompasses—and enforces—national benchmarks. It provides for uniformity and consistency in “police administration”: the promulgation of organizational mission-, vision-, and values-setting; candidate recruitment and selection; entry-level and ongoing education and training; unit and individual performance and conduct standards; unit and individual performance appraisal; supervision and leadership; discipline; transfers, assignments, and promotions; budgeting and fiscal controls; and all other facets of organizational responsibility, transparency, and accountability.
The strength of a national system against a backdrop of constitutional guarantees, that standardizes performance and conduct, and consistently enforces those standards, cannot be denied. The British come closer to this ideal and, I maintain, do a far better job of it than we Americans.
That said, “The Met” is far from perfect. Having spent a week at the College of Policing in Bramshill (in 1999), and having studied the British model of national law enforcement, it is clear that our law enforcement counterparts in England and Wales are almost as resistant to opening their doors, and their minds, to the ideal of a true “people’s police” as we are.
I am not unmindful of the practical, political, and fiscal obstacles—not to mention the fundamental philosophical disagreements—this agenda presupposes. But by adopting national standards, and by implementing the specific proposals contained herein, I’m confident we can dramatically improve police effectiveness, citizen and officer safety, and the community-police relationship throughout the nation.
With homicide and other crime rates rising in many cities, with cops shooting and killing unarmed black men, with police officers themselves being ambushed, and with the chasm between many citizens and their officers growing deeper by the day, the need for fundamental reform has never been greater. Or more urgent.
The following is adapted from TO PROTECT AND SERVE: How to Fix America’s Police by Norm Stamper. Reprinted with permission from Nation Books.
