Editor's Note: The Center hosts a public program on the future of policing tonight at 6:30 p.m. ET. Learn more and get tickets. If you can't attend in person, watch online.
Efforts to address a recent surge in violence in Chicago have highlighted the challenges involved in reforming policing practices both in the city and across America. As the New York Times reports, as of the end of March, 131 people have been killed in Chicago in the first months of 2016 (an 84 percent rise in homicides from the same period in 2015), and there have been 605 shootings (nearly twice as many as at this point last year). The rise in violence comes amid public outcry against—and a Justice Department investigation into—Chicago’s policing practices. Last November, a video depicting a police officer shooting teenager Laquan McDonald caused “longstanding anger about police conduct to boil over.” Chicago is now “at a pivotal moment for law enforcement, mired in a crisis over police conduct and discipline and over distrust of officers, particularly among African-American residents, who make up about one-third of Chicago’s population.”
As the mayor, police, and community leaders face the problem of reducing bloodshed while trying to improve police-community relations, scholars and experts have debated what could be causing the increase in homicides—with some pointing out that this could be merely indicative of normal fluctuations in crime rates. In the meantime, according to the mayor’s spokesperson, the city’s strategy remains focused on rebuilding “trust while continuing to expand our crime-fighting strategy and invest in proven prevention programming.”
Chicago is not the only city grappling with these issues, and its police department is not alone in its need to reform policing practices. For example, Ferguson, Missouri recently reached an agreement with the Justice Department after an inquiry prompted by the death of Michael Brown found that the city’s police had routinely violated the Constitution. Other violent clashes between police and civilians around the county motivated President Obama to appoint a Task Force on 21st Century Policing, to strengthen community policing and trust among law enforcement officers and the communities they serve. Institutions like the American Law Institute (ALI) are studying the issue as well, seeking ways to define what makes for effective, community-oriented policing today. The ALI has begun a project to develop a set of principles to enable institutional actors to better regulate policing practices in light of current events, new research on longstanding policing practices, and dramatic technological advancements in society.
On March 31, the Center will host a discussion with several experts on policing practices: Barry Friedman, professor of law at New York University and lead Reporter on the ALI’s Principles of the Law, Police Investigations project; Tracey Meares, professor of law at Yale University, a member of the 21st Century Policing Task Force, and an Associate Reporter for the ALI’s Police Investigations Project; and Commissioner Charles Ramsey, former Philadelphia Police Chief and co-chair of the Task Force. These experts will discuss post-Ferguson reforms, how technologies like body cameras may help, and what the future of policing might look like, drawing from their own extensive research and experience.
Their research has already come to some interesting conclusions. Barry Friedman’s article, Democratic Policing (with Ponomarenko), analyzes the problem of the “democratic vacuum” in American policing, and argues for greater public involvement in police rulemaking:
Policing agencies are authorized by breathtakingly broad delegations of power, and there is virtually no process that ensures democratic input into the means by which they go about their tasks. As a result, policing suffers from a failure of democratic accountability, of policy rationality, of transparency, and of oversight that would never be tolerated for any other agency of executive government. It is this democracy deficit that drives the need for policy reform. … Rather than attempting to regulate policing primarily post hoc through episodic exclusion motions or the occasional action for money damages, policing policies and practices should be governed through transparent democratic processes such as legislative authorization and public rulemaking.
Friedman argues that it is not enough to leave it up to courts to regulate police, because “constitutional judicial review is completely inadequate for this task.” Especially considering the increase in “proactive and programmatic” policing practices, courts are increasingly less equipped to examine new practices, technologies, and techniques under old doctrines. Constitutional law and courts thus cannot fill the current policy void.
But more importantly, because police rules and policies about enforcement methods have huge consequences for people, they “should, as a normative matter, be subject to rulemaking requisites such as public notice and room for public participation.” Policing policy does change when the public is given an opportunity to weigh in: “After Seattle residents discovered that their police department had acquired two small drones—without informing the City Council of its plans to do so—fierce disapproval prompted the mayor to order the department to give them away.” And public involvement in rulemaking will provide benefits for police as well as for citizens:
Numerous studies have shown that individuals are far more likely to comply with the law and to cooperate with law enforcement authorities when they perceive their actions as legitimate—and that one critical component of legitimacy is the perception that police officials are responsive to community demands. At listening sessions before the President’s Task Force on 21st Century Policing, a number of police officials testified about the benefits of adopting robust civilian oversight and community engagement programs.
Implementing some of these suggested processes may be difficult—like the challenge of getting and organizing coherent public input. But as Friedman concludes, “[e]ven small steps in the direction of democratic accountability would go a long way toward a saner system of regulating the police.”
Tracey Meares has conducted a great deal of research that focuses on the importance of perceptions of police by the communities in which they work. In one article, Lawful or Fair? How Cops and Laypeople View Good Policing (with Tyler & Gardner), she argues that the public, when deciding whether the police have done wrong and deserve some form of sanctioning, is not particularly sensitive to whether police are actually acting in ways that are consistent with constitutional standards. Instead, public judgments about whether police officers were acting unlawfully are largely shaped by people’s procedural justice evaluations about the demeanor of the officers during their interactions with them—in essence, people’s perceptions of the level of fairness with which they are treated.
In turn, the concept of “rightful policing” (as opposed to simply lawful policing) depends primarily on the procedural justice or fairness of police conduct, and often leads to more compliance with the law and therefore lower crime rates. When studying criminal offenders specifically, offenders were more likely to believe in the legitimacy of the law and its agents when they reported having more positive perceptions of police. And those individuals with more positive perceptions of the law were less likely, for example, to carry a gun outside of their homes.
Like Friedman’s critique of the “democracy vacuum” in policing, Meares also touches on the limits of constitutional law in effecting policing reform:
The constitutional criminal procedure as it is written today has no capacity to tell police how to arrest or stop someone in a way that will tend to support procedural fairness and will lead those involved, as well as observers, to view police actions as legal, appropriate, and reasonable. There is nothing in law that says that officers have to treat members of the public in ways that they will experience as reflecting the just exercise of authority. More than this, police are rarely trained in the ways they should act to achieve these goals. Instead, rookie police officers spend hours and hours reading law and learning when they are legally allowed to stop, arrest, and search. They are not correspondingly trained about how to conduct themselves so as to create and maintain their legitimacy in the community.
Simply educating individual citizens on constitutional law and their rights won’t solve the problem of how they are being treated by police, regardless of whether the treatment comports with constitutional limitations. Even changing the legal rules themselves won’t solve the problem for the same reason—because it fails to adequately address officer behavior in interpersonal interactions. Instead, Meares advocates for different kinds of training programs for police, who “need to be encouraged to treat people with dignity and respect regardless of whether the rules require it.” Her study shows that, by helping to foster legitimacy and “build communities out of crime,” treating people fairly simply becomes good police policy.
Commissioner Charles Ramsey would agree. While speaking about his extensive experience as a police chief, Ramsey has emphasized the need to reform police training programs, to train “officers to understand and recognize implicit bias” and “to show respect for residents of communities they police.” He has called for other reforms as well, including: putting more officers on foot patrols so that they can get to know citizens; reminding officers of the need to treat citizens with respect; and examining poverty and community-based violence that disproportionately affect communities of color. Finally, Ramsey has called for a new, “top-to-bottom review” of the criminal justice system “that could identify improvements in probation, parole and re-entry programs and explore underlying social issues that contribute to drug trafficking.”
Ramsey has written about the need for police leaders to ensure that their officers fully understand the nature and significance of their commitment “to protect the Constitutional rights of all people to liberty, equality and justice”—a commitment that binds police in “a pact with the communities we serve.”
How can these ideas be implemented to help Chicago? One prior study by Meares may provide a clue. While a professor at the University of Chicago, Meares organized a program in the city for parole reform that aimed to address crime in the city, decrease the murder rate, and lower instances of illegal gun possession by repeat offenders. The program—based on a similar one in Boston, Operation Ceasefire—identified everyone who had committed violent or gun-related crimes and had been released from prison and recently assigned to parole. Meares gathered the offenders in small, random groups of for call-in sessions in “places of civic importance”—park buildings, local schools and libraries —where they sat at the same table as the police “in order to create an egalitarian, non-confrontational atmosphere.” They then heard a version of a three-part presentation that warned the entire group of consequences as a result of violence; that offered help and job training from social service agencies and churches to gang members; and that presented the views of members of their community that violence was wrong and it had to stop.
By focusing on group deterrence theory instead of threatening individuals with punishment, and by utilizing the “community’s moral voice” to increase the legitimacy of the program, the program worked. The results were drastic: there was a 37 percent drop in the average monthly homicide rate—the largest drop of any neighborhood in the city. At the time (around 2010), violent crime in Chicago was at a 30-year low. But around 2014, the city failed to allocate additional funds for the program; it was shut down, and crime spiked once more.
Chicago may or may not need another Ceasefire program to blunt the current spike in violence. But one thing seems apparent: creating effective policing practices that both protect and strengthen communities in Chicago and across the country will continue to require a comprehensive effort among various groups. As these experts will discuss at the Center on March 31, police, legislatures, agencies, courts, scholars, and communities all play an important role in achieving meaningful and democratic policing reform.
Lana Ulrich is associate in-house counsel at the National Constitution Center.
