By John Kleinig
In a recent Guardian op-ed, Brooklyn College’s Alex Vitale repeats his long-term frustration with police, which culminated in his 2017 book, The End of Policing: police should be defunded, not reformed.
In a number of respects, his exasperation is understandable. As he points out, the Minneapolis Police Department (whose officers killed George Floyd) not only has a history of discriminatory treatment, but in recent years it has also sponsored many initiatives to improve the ethical quality of its policing. To no avail, Vitale claims. That is a bit quick, though I am sympathetic to his exasperation. Maybe a department of 800 would be even worse than it is without the training it received and the actions of the four officers in question even more characteristic of its style (not that its record in recent years has been encouraging. And partly because of the uniform, we are inclined to generalize over police in a way that we do not do with accountants or medical doctors. The larger problem of course is that there have been horrible cases elsewhere, and we have a poor history of holding police accountable, especially when white officers have killed or otherwise mistreated people of color.
The legal doctrine of qualified immunity, aided by well-paid and often specialized union lawyers, point to wider structural problems—legal and political—where the intersection of state power and community life is often at its most potent. No doubt we should grant police some discretion in how they respond at social flashpoints, but it should be the discretion we accord to professionals, not to individual or even cultural whim. Although police unions have an important role to play, their power is often manifested in defensive strategies (especially collective bargaining) and legal tactics that negate accountability both within departments and more widely.
But defunding? It would certainly help the situation if police departments did not mostly immunize their officers against liability, and departments were also required to carry a significant part of the financial burden for the actions of their officers. As it is, monetary settlements are almost exclusively borne by cities/states and (ultimately) taxpayers, and the burden is then felt in other areas, such as education and housing (often costing communities far more than the proposed defunding measures). Social programs could benefit by the amount saved. If misconduct hurt police departments directly, there would undoubtedly be greater concern for officer propriety. And of course improvements in officer behavior would have important social benefits, including in the communities that most often suffer from police overbearingness.
Let me add that a president who has encouraged police excess, one whose administration has removed some of the legal motivators for police reform, and has also reversed the post-Ferguson Obama initiative to demilitarize policing, has exacerbated a dire situation. Part of the problem with Vitale’s solution is that even if police are defunded, we will still need people out there to do the some of the messy work that police currently must do (interventions, arrests, crowd control, etc.), and the similar problems of excess are almost sure to recur.
The root problem is endemic not to police but to our society. Our social order still bears the legacy of overt and official racism, albeit in less obvious but hardly less invidious ways. Police, who are drawn from the wider community, pretty much reflect its moral and political failures, and until we as a society are prepared not merely to address more deeply the presence and effects of our implicit and explicit biases, but also to confront and change them in practicable ways, we are not likely to improve the situation. Taking from police some of their current tasks, leaving them as mere enforcers and not enlarging their role as social peacekeepers, fails to recognize the complexity of social life. You can’t extricate police from dealing with threatening and mentally disturbed persons, but you can train special units to be appropriately responsive. And police sometimes work productively with coalitions for the homeless, restorative justice organizations, and conflict resolution programs.
For myself, the whirlwind we are currently reaping did not start with the Trump administration, but began gathering momentum when Obama came to power. Although his accession to the presidency brought the hope of change for some, it also unleashed an undercurrent of prejudice and frustrated white entitlement to which the Trump administration (explicitly dedicated to overturning every Obama initiative) has now given public license. During the Obama years, I often made a point of reading the frequently anonymous comments of readers of the media, and was horrified at the amount of racism that infused so many of them. It is not just Donald Trump and his administration—it’s the very substantial political base he continues to have; and although some of them “keep the faith” in Trump primarily for socio-cultural and religious reasons (opposition to abortion and same sex marriage, for example), even there the racism runs deep. Alas, not only in right-wing contexts: as the confrontation between white Amy Cooper and Black Christian Cooper recently unfolded in New York’s Central Park, even committed liberals may not be free from deeper biases.
Can we do better, without Vitale’s defunding? I believe so, though—somewhat in agreement with him—we need some fairly radical reconceptualization of policing. The seeds for such reconceptualization are already there. They just need to be nurtured. In many police departments, officers now carry naloxone to treat people who have OD’ed from opioid use, and they do not arrest such people but combine with public health authorities to treat them, thus extending a diversionary approach to public disorder that has earlier precursors. Brandon del Pozo, a recent CUNY doctoral graduate in philosophy, spent 23 years as a police officer, most recently as the commanding officer in Burlington, VT. His doctoral dissertation, “The Police and the State,” reflective of his experience at every rank of policing, painstakingly argues that the police have been (not merely “should be”) vested with three powers: (1) to protect and rescue third parties from harm, (2) to collect people and evidence and present them to the court for adjudication, and (3) to broker and enforce the terms of social cooperation in public spaces. Del Pozo shifts the emphasis of policing from law enforcement toward public health, thus providing a more peaceable focus for law enforcement work than one concerned merely with (a frequently partisan) public order or safety.
There is far more to del Pozo’s account. He strongly criticizes Tom Tyler’s procedural justice approach to policing that has been broadly accepted by many policing theorists (and is rightly criticized by Vitale), and argues instead that police must seek to broker substantive justice in public places, an activity legitimated by an appeal to public reason—that is, backed up not simply by assertions of authority but articulated by reference to reasons that have general credibility. Within democratic societies, authority is vested in the police by the community, for service to the community (not merely a majority or elite); without broad communal consent it degrades into mere power. Thus de-escalation is not simply a technique but an attitude that must be generalized.
Vitale suggests that a substantial part of the current police budget be taken away and devoted to “the problems poor people face”—housing, employment, health care, anti-violence programs, counseling, after-school programs, trauma services and restorative justice. Politics does not generally work that way (the LAPD notwithstanding, though we still have to see how that works out). And even if it did, the likelihood of the money saved going to the people who most need it is unlikely to happen in our present socio-political climate. Sure, police need to feel the sting from their bad behavior. But there needs to be a much wider soul-searching. Police are not them, but us. Just as black and brown people are not them, but us. Until we get that right, we will get the rest wrong.
John Kleinig is Emeritus Professor of Philosophy in the Department of Criminal Justice, John Jay College of Criminal Justice, and in the PhD Program in Philosophy, Graduate Center, City University of New York. He is the author of numerous books, including The Ethics of Policing, and Ends and Means in Policing.