law enforcement definition essay

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• Introduction

Policing small communities

Policing large societies, police and the state.

• Ancient policing
• The stipendiary police
• The decline of constabulary police
• The French police under the monarchy
• Postrevolutionary French police
• The development of professional policing in England
• Early police in the United States
• Detective policing in England and the United States
• English and American policing in the late 19th century
• The development of police in Australia
• The development of police in Canada
• Federal and state police
• Early reform efforts
• The professional crime-fighting model
• The crisis of policing
• Due process and individual rights
• Community policing
• Police and counterterrorism
• Centralized police organizations
• Decentralized police organizations
• Police organizations in Africa
• International police organizations
• Routine police activities
• Police and courts
• Police and minorities
• Types of mass events
• Methods of crowd policing
• High policing: the protection of national security
• Police work as an occupation
• Communication
• Computerization
• Personal equipment
• Nonlethal tactics and instruments
• Police dogs
• Handguns, shotguns, and rifles
• Surveillance systems
• Lie detectors
• Photography
• Anthropometry
• Fingerprinting
• DNA fingerprinting
• Evidence collection
• Hairs and fibres
• Examining documents
• Firearms and tool marks
• Organic and inorganic analysis
• Supplemental forensic sciences
• Criminal profiling

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• Table Of Contents

Recent News

police , body of officers representing the civil authority of government. Police typically are responsible for maintaining public order and safety, enforcing the law , and preventing, detecting, and investigating criminal activities. These functions are known as policing. Police are often also entrusted with various licensing and regulatory activities.

However, police scholars have criticized this popular understanding of the word police —that it refers to members of a public organization having the legal competence to maintain order and enforce the law—for two reasons. First, it defines police by their ends rather than by the specific means that they use to achieve their goals. Second, the variety of situations in which police are asked to intervene is much greater than law enforcement and order maintenance. There is now a consensus among researchers, based on a definition first proposed by American sociologist Egon Bittner, that the common feature among all the different agencies engaged in policing is the legal competence to enforce coercive, nonnegotiable measures to resolve problematic situations. Such situations are characterized by two features: their potential for harm and the need to solve them urgently before they develop that potential. Hence, the actual use of coercion or the threat of using it allows police to put a quick, nonnegotiated, and conclusive end to problematic situations (e.g., keeping people away from the scene of a fire for their own protection and to allow firemen to do their job).

Following that definition, policing thus may be performed by several different professional organizations: public police forces, private security agencies, the military , and government agencies with various surveillance and investigative powers. The best known of these bodies are the public constabulary forces that patrol public spaces, often in marked cars, and whose members wear a uniform. They are the most visible representatives of the civil authority of government, and they provide the model typically associated with police organizations. However, in many Anglo-Saxon countries—such as Australia , Canada , the United Kingdom, and the United States—there are at least twice as many private security agents as public police officers. Furthermore, security and intelligence agencies that generally operate undercover have played an increasingly important role in combating terrorism , especially since the September 11 attacks in the United States in 2001. Policing has therefore become a complex undertaking that straddles the traditional institutional and jurisdictional distinctions between public and private, criminal and political.

This article focuses on the development of public police organizations and of their policing strategies in Anglo-Saxon countries and the countries of continental Europe , particularly France , which developed the original model of centralized policing. Countries in Africa, Asia , and South America are covered to a lesser extent, mainly because relatively little reliable information on their policing systems is available.

Police and society

There is a remarkable historical, geographic, and organizational diversity in the activities of people who are, or have been, defined as police. Police work has developed considerably from what it was centuries ago. As populations grew and informal institutions of socialization and social control—such as the family, schools, and the church—decreased in effectiveness, police became increasingly necessary. However, no uniform worldwide system of policing ever emerged.

Numerous factors help to explain the diversity of police activities and systems. The types of crime typically committed in a society and the methods used by criminals play a great part in determining a police force’s activities. For instance, if criminals use firearms, the police are likely to be armed, or if criminals use computers to commit crimes, the police may establish a special unit dedicated to investigating cybercrimes . History also helps to explain this diversity; e.g., former colonies tend to keep the policing system established by their colonizers. Population plays an important role as well; policing rural areas and villages vastly differs from policing large cities. Foremost among the factors that determine a country’s system of policing, however, are the political culture of the society—e.g., whether it is open and democratic or closed and totalitarian—and the state’s conception of police accountability.

Most people willingly obey most laws, whether a police officer is present or not. They comply with the laws because they consider them fair and because they believe that in the long run it is in their interest to observe them. In small communities in which most citizens know each other, people who live up to the community ’s shared ideals are rewarded with the esteem of their fellow citizens. If they break the law or fall short of other people’s expectations, their lives often become more difficult because they are shamed, shunned, or ostracized by the rest of the community and are less likely to receive assistance in times of trouble. In all societies this system of informal rewards and punishments is the most potent aid to law enforcement, but it is strongest in small communities. The forces that order life in a small community thus make the task of the police much easier. Police action is needed only when such informal controls have proved insufficient.

This is why rural and sparsely populated areas are often policed by a single centralized—and often militarized—police force, even in countries that have a decentralized police system. A single police organization operating under a unified command is more cost-effective and more operationally efficient than a bevy of independent small-town police forces. Since the territory to cover may be very large and characterized by difficult terrain, police in such regions must have the long-range mobility and adaptability that are characteristic of military forces. In addition, the countryside has historically been policed by military organizations, as police forces were initially created in urban settings. (The great exceptions to this model are the United Kingdom and the United States, which have long resisted police centralization.)

In larger and more complex societies, informal institutions of social control are generally weaker, and, as a result, formal institutions are generally stronger. The relative weakness of informal controls is attributable to a number of factors. In large societies people often deal with strangers whom they will never meet again, and in such circumstances there may be fewer informal rewards for honesty or fewer informal penalties for dishonesty. Such communities tend also to be more technologically advanced, which leads to the adoption of new laws, such as those regulating the licensing and operation of automobiles and those concerned with commerce conducted on the Internet ( see e-commerce ). Because some of these new laws may not have the same moral significance as older laws criminalizing violence, theft, or fraud , people may feel less of an obligation to obey them. Moreover, when new laws are created, crime increases almost necessarily. There is thus a danger that people who are convicted of having violated a new law may feel aggrieved and in the future be less willing to cooperate with the police or to obey the law when they are not being observed. Finally, as societies grow, it becomes more difficult for people to place the public interest ahead of their private interests in circumstances where the two may conflict. An employer who catches an employee committing an offense within the workplace, for example, may choose not to notify the police because he fears that the firm’s production, profit, or prestige would suffer if the offense was publicly exposed.

A country’s political culture helps to determine whether its police forces are organized nationally or locally. The desire for efficiency lends itself to the establishment of centralized police forces, which can take advantage of coordination and savings in training, organization, and service delivery. However, such forces face the problem aptly summarized by the Latin question Quis custodiet ipsos custodes? (“Who guards the guardians?”). In some democratic countries, particularly the United States and, to a lesser extent, Great Britain, citizens have traditionally believed that the existence of a national police force would concentrate too much power in the hands of its directors. They have believed that local communities could not hold a national police force accountable for abuses of power, and they have feared that the national government could use such a police force to keep itself in power illegitimately. For those and other reasons, some democratic countries favor organizing police forces on a local basis. Decentralization brings the police closer to the community, and it often succeeds in tailoring policing to the specific needs of a community. However, a decentralized police apparatus tends to hinder the flow of intelligence between the various components of the system. Another drawback of a system of accountability to local government is that the narrow relationship between the police and their political overseers may facilitate the corruption of both parties.

The need for police accountability is made evident by the great power that police forces wield over the lives, liberties, safety, and rights of citizens. Governments empower police to compel individuals to comply with the law; they allow officers to stop, search, detain, cite, and arrest citizens and to use physical and sometimes deadly force. If police use those powers improperly, they can abuse the civil rights of the very citizens they are supposed to protect. Thus, it is critical that police be accountable for their policies and behavior. In democratic countries, accountability is ensured mainly by three means. First, police forces are made subordinate to elected representatives (as in the United States, where mayors or state governors oversee the police, and as in Belgium, where a town’s burgomaster is also the chief of police) or to special elected officials (e.g., the police and crime commissioners of England and Wales). Second, the courts are entrusted to safeguard the respect of due process by the police. Third, official bodies are appointed to hear and act upon complaints from citizens against the police.

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Understanding Law Enforcement

The purpose of law enforcement is to protect communities, hold individuals accountable, and ensure justice. But how exactly do police carry out these duties, and what other responsibilities have they taken on? Who controls the police force at different levels of government and who holds them accountable? How can we bridge gaps between citizens and officers?

Table of Contents

Introduction, putting it in context, the role of government, current challenges and areas for reform, thought leaders and resources, ways to get involved/what you can do.

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View the Executive Summary for this brief.

By nature, police and communities are intertwined, and both are essential stakeholders in debates surrounding police reform. Dr. Karen Bartuch, Sgt. Sofia Rosales-Scantena, and Toni McIlwain joined The Policy Circle to discuss the role of police and the role of community involvement, and how citizens can help bridge gaps between communities and police officers:

According to Sir Robert Peel’s Nine Principles of Policing , the basic mission for which the police exist is “to prevent crime and disorder,” but it is also necessary to “recognize always that the power of the police to fulfill their functions and duties is dependent on public approval of [police] existence, actions and behavior, and the ability of the police to secure and maintain public respect.” This is because police officers are in a unique position , being “both part of the community they serve and the government protecting that community.” This position was the focus of the Obama administration’s President’s Task Force on 21st Century Policing , an endeavor to strengthen relations between law enforcement officers and the communities they serve, and it was at the heart of nationwide protests that erupted in May 2020 and sparked national debate over the role of police .

A May 2021 report from the National Commission on COVID-19 and Criminal Justice found that homicide rates declined from their 2020 peaks during the first quarter of 2021, but are still elevated compared to recent years. Aggravated and gun assault rates are also elevated. On the whole, 2021 saw homicide counts continue to climb , but at a slower pace than in 2020.

Crime maps indicate city centers, the sites of anti-police protests, did not experience these upticks; rather, the low-income neighborhoods outside of the city centers are seeing violence peak. These increases in criminality – and in some cases disregard for the law – have made life on the street for the average police officer much more difficult. Lockdowns and protests against the police sidelined the social institutions that tend to keep communities safe, leaving streets emptied  “ of eyes and ears on their communities .”

Why it Matters

In colonial times, law enforcement was a localized endeavor , carried out voluntarily by citizen groups, or sometimes by part-time officers privately funded by local communities. The Texas Rangers that patrolled Texas settlements in the 1800s became the basis from which state law enforcement agencies grew. In 1838, Boston established the first municipal police department , and was quickly followed by New York City, Chicago, New Orleans, and Philadelphia.

There are over 660 law enforcement academies that train the officers who go on to work in almost 19,000 local, state, and federal law enforcement agencies. The bulk of these agencies are at the state and local level; state and local police departments employ over 930,000 people, with roughly 718,000 officers with power of arrest. In total, there are about 2.2 officers for every 1000 individuals living in the U.S.

Spending on state and local police  increased from $42 billion in 1977 to $115 billion in 2017 (adjusted for inflation), over 85% of which is local spending. Local spending on police “has outpaced the overall growth of city and county budget” over that time period, “rising faster than K-12 education, sanitation and parks and recreation.” Determining how much is spent on policing is difficult because funding comes from multiple sources; it is not enough to look at a city, county, or state budget alone for a full picture. In 2017, for example, Las Vegas spent less than 2% of its budget on police, but Clark County spent 15% of its budget on police; in Chicago that same year, the city spent almost 20% of its budget on policing, but Cook County only spent 2% of its budget.

Violent Crime & Deaths

Based on the FBI’s annual report of serious crime and the Bureau of Justice Statistics’ annual crime survey , crime in the U.S. fell by 50%-70% between 1993 and 2018. Yet in 18 out of 22 surveys conducted between 1993 and 2018, at least 60% of respondents said they believed there was more crime in the U.S. compared to the year before. There are on average 8.25 million criminal offenses each year, resulting in about 10 million arrests.

As of mid-2022, the most recent statistics available are from 2020. Since 2015, law enforcement agencies have been transitioning to a detailed (but more complicated) format known as the National Incident-Based Reporting System. The new system involves financial and technical hurdles for many police departments across the country. Less than 60% of America’s local law enforcement agencies voluntarily submitted data in the new format, meaning national-level and state-level crime data is not universally available.

Crime statistics from the FBI for 2020 show that homicides rose 30% between 2019 and 2020, to 6.5 killings per 100,000 people. In the 1990s, this rate peaked at 9.8 per 100,000 people. Experts have pointed to the pandemic, fallout from social justice protests, and economic disruptions as possible causes, although overall crime fell by 6% between 2019 and 2020. Agencies across the country voluntarily submit data for these statistics. For 2020, 85% of eligible agencies submitted data ; some missing include agencies in New York, Chicago, and New Orleans.

The Bureau of Justice Statistics’ Crime Victimization Survey , through which U.S. residents self-report whether they have been victims of violent crime, reported 4.6 million total violent incidents in 2020, down from 5.8 million in 2019. In total, numbers have held relatively steady since 2010. It is important to note differences between self-reported crime and national statistics; based on comparisons to statistics from the FBI, about 40% of violent victimizations were reported to police in 2020.

According to the Washington Post’s police shootings database , 1,021 people were shot and killed by police in the U.S. in 2020. Of those civilians who lost their lives, 652 were reportedly in possession of a gun and 175 were reportedly in possession of a knife, while 60 were reported unarmed. An article published in The Lancet indicates deaths involving police may have been undercounted in the U.S. (by as many as 17,000 data back to 1980) due to discrepancies between independent tallies and government data of death certificates. Others note the independent tallies come from crowd-sourced databases, which may not be reliable based on specific criteria used in classification.

Although Black Americans made up 14% of the U.S. population in 2019, they accounted for 26.6% of arrests and 24% of individuals shot and killed by police . White Americans, at 60% of the population, accounted for 69.4% of arrests and 45% of individuals shot and killed by police . “A simple count of the number of police shootings that occur does little to explore whether racial differences in the frequency of officer-involved shootings are due to police malfeasance or differences in suspect behavior.” In light of population proportions, some point to these figures as proof of systemic racism and that Black Americans are more likely to be killed by police than White Americans. Others look at violent crime statistics that indicate Black Americans are more frequently involved in criminal incidents, which could mean they are more likely to have encounters with police.

Diving deeper into these statistics, the FBI estimates Black Americans were 39% of offenders in murder incidents in 2019, almost three times greater than their share of the population. Still others point to statistics that indicate Black Americans are even more likely to be victims of violent crime than offenders; at 14% of the population, Black Americans were 54% of murder victims in 2019.

According to the Bureau of Justice Statistics’ 2019 Crime Victimization Survey , violent criminal incidents with Black offenders and Black victims accounted for 70% of violent incidents involving Black Americans in 2019, a share much greater than their share of the population. In comparison, violent crimes with white offenders and white victims, at 62% of criminal incidents involving White Americans, is approximately equivalent to the population of White Americans. According to the 2020 survey , this rate did not significantly change over the course of the next year. 

The chart from the Bureau of Justice Statistics’ 2019 Crime Victimization Survey examines the race and ethnicity of violent incident offenders and victims.

The U.S. Constitution “established a federal government of limited powers. A general police power is not among them .” Congress does, however, have legislative powers that allow it “to enact legislation that relates to law enforcement matters.” Federal laws , such as those related to immigration, bankruptcy, civil rights laws, and tax fraud, apply in every state. Data collection on crimes and law enforcement is mainly done at the federal level to compile national statistics. The federal government is also the largest provider of law enforcement training, primarily through the Federal Law Enforcement Training Centers under the Department of Homeland Security. Finally, the federal budget includes provisions for supporting state and local law enforcement via justice assistance grants and public safety programs.

Federal Agencies

The  Department of Justice (the DOJ ) is the primary federal agency dedicated to public safety and controlling crime. The Attorney General (AG) supervises and directs the DOJ and its agencies, such as the Federal Bureau of Investigation (FBI); the Drug Enforcement Administration (DEA); the Bureau of Alcohol, Tobacco, Firearms and Explosives; the Bureau of Prisons; and the U.S. Marshals Service.

For FY2021, total funding for the DOJ amounted to $55.3 billion. Law enforcement operations totaled $18.7 billion.

In total, there are 65 federal agencies and 27 offices of inspector general that employ full time personnel authorized to make arrests and carry firearms. These include the DOJ offices mentioned above as well as U.S. Customs and Border Protection under the Department of Homeland Security (DHS); the Park Service Rangers under the Department of the Interior ; and lesser known security offices and details under the Departments of Commerce , Labor , and State , among others.

Congress can influence policing at the local level via the relationship between the DOJ and police throughout the country. Both the House and Senate Committees on the Judiciary provide oversight of the DOJ and DHS. In the Senate, the Judiciary Committee’s  Subcommittee on Crime and Terrorism oversees the DOJ’s criminal division and most offices, including the FBI and DEA. In the House, the Subcommittee on Crime, Terrorism, Homeland Security, and Investigations has jurisdiction over the Federal Criminal Code, sentencing, prisons, parole, and pardons.

State and Local

The Constitution gives authority over policing to the states . Each state and territory has its own legal and court system to handle criminal matters. State and local agencies make up the bulk of the almost 19,000 law enforcement agencies across the country, and local police departments employ the vast majority of all law enforcement officers, employing approximately 650,000 officers.

Each state has an attorney general who acts as “ the chief legal officer of the state ” and oversees law enforcement and reform. The attorneys general of each state and Washington D.C., and the chief legal officers of Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands are all members of the National Association of Attorneys General (NAAG).

At the local level there are municipal, county, tribal, and regional police departments that “uphold the laws of the jurisdiction, provide patrol, and investigate local crimes.” Sheriffs offices are granted authority by the state to enforce the state law at the local level in the more than 3,000 counties in the U.S. Police chiefs , who oversee departments, report to local elected officials such as a mayor, a city manager, or a city council.

Local police department officers have the most interaction with their communities. City, county, and municipal officers are those who respond to 911 calls, and monitor roadways and enforce traffic laws . Traffic stops are the primary way most people interact with law enforcement personnel. Most importantly, local law enforcement, like hospitals, operate 24 hours, 7 days a week; people turn to police departments when they do not know who else to turn to.

A series of incidents of excessive use of force in 2020, including the killings of George Floyd, Breonna Taylor, and Elijah McClain, sparked calls for more police oversight and reform. Mounting concern about violent crime in the U.S. has tempered some of these calls. In a July 2020 poll by Gallup , 58% of all Americans said that there were “major changes needed” for police reform. In mid-2021 , 61% of Black Americans, 41% of White Americans, and 30% of Hispanic Americans reported having very little or no confidence in the criminal justice system. By late 2021, the share of adults who want more funding for policing in their area increased to 47% , up from 31% in June 2020.

Accountability

Misconduct & excessive use of force.

Use of force is one of the greatest concerns for many Americans. A June 2020 PEW poll found that only 35% of Americans believe the police do a good or excellent job of “using the right amount of force.”

Finding data to verify these assumptions is difficult. A 2017 Harvard study on police use of force and racial bias found  “[d]ata on lower level uses of force…are virtually non-existent,” and “the analysis of police behavior is fraught with difficulty including, but not limited to, the reliability of the data that does exist.” The study examined data from New York’s City’s Stop and Frisk policy, the Bureau of Justice Statistics’ Police-Public Contact Survey , and officer-involved shooting data reported voluntarily from twelve police departments across the country. The main findings ( p. 29-30 ) report:

“On non-lethal uses of force, there are racial differences – sometimes quite large – in police use of force, even after controlling for a large set of control designed to account for important contextual and behavioral factors at the time of the police-civilian interaction. As the intensity of force increases…the overall probability of such an incident occurring decreases but the racial difference remains constant. On the most extreme uses of force, however – officer-involved shootings with a Taser or lethal weapon – there are no racial differences in either the raw data or when accounting for controls.”

Mandating body cameras is a suggestion for ensuring reliable data and accountability. Live footage can guarantee police reports are accurate. It will also help target individual officers for wrongdoing as opposed to intense and lengthy investigations into entire police departments that may interfere in officers’ abilities to respond to community needs. As of mid-2022, seven states mandate body cameras for law enforcement personnel (Colorado, Connecticut, Illinois, Maryland, New Jersey, New Mexico, and South Carolina). About half of local police departments have acquired body cameras as of 2018. Urban Institute further breaks down each state’s body camera laws and regulations.

While body cameras have generally received wide-spread support, other means of equipping police officers have been called into question. The 1033 program authorizes the transfer of U.S. military equipment to state and local law enforcement agencies. This includes necessary ammunition and medical supplies, but also sometimes armed assault vehicles and weapons reserved for military conflict. Equipping local law enforcement officers properly is essential to their protection and that of their communities, but excessive weaponization of police has been linked to more cases of excessive use of force, and “ exacerbates the gap between police and those they are supposed to serve.”

Unions & Collective Bargaining

Other barriers to holding police officers accountable for misconduct can sometimes be found in police contracts negotiated by unions. Police unions emerged alongside many other labor unions at the beginning of the 20th century. Although they initially enjoyed little public support, roughly two-thirds of American police officers are part of police labor unions today.

Police officers are government employees who require civil service protections in terms of demotions or transfers, layoffs or discharges, and pay and benefit determination. Additionally, due to the nature of police officers’ work, misconduct by officers can have more serious consequences than misconduct by other public employees. For this reason, state labor laws and Law Enforcement Officers’ Bill of Rights (LEOBRs) “provide police officers with due process protections during disciplinary investigations that are not given to other classes of public employees.” Collective bargaining by unions ensures these laws are included in police department contracts to protect officers who use their discretion in dangerous situations.

The concern is how collective bargaining contracts can affect departmental policies and even entire disciplinary processes. A study of 178 police union contracts around the country found that many “contain provisions banning civilian oversight, obstructing brutality complaints, inhibiting investigations in police misconduct, and restricting the ability of officials to track and identify officers with a pattern of civilian abuse.” Most frequently, contracts:

• Limit departments’ abilities to investigate civilian complaints, such as throwing out complaints that have been filed after a certain period of time following an incident;
• Mandate the destruction of disciplinary records after a certain period of time, which means officers that have been fired or have resigned over misconduct can be hired elsewhere with an apparently clean record;
• Limit the influence of a civilian oversight board, or prevent civilian oversight entirely;
• Dictate the disciplinary process police commissioners must follow and give arbitrators instead of police supervisors the authority to make final disciplinary decisions.

Despite having the authority “to compel cities, under threat of litigation, to invest in costly reform measures aimed at curbing officer wrongdoing,” even the DOJ still needs to work around union contracts. This makes interventions at the national level difficult. Instead, states can mandate transparency in police union contract negotiations . According to the Empire Center’s Ken Girardin , collective bargaining agreements are usually negotiated in private between union representatives, some elected officials, and certain police department officers. One argument for making collective bargaining open to the public is that groups who are most affected by the police – those who live in the communities police serve, and therefore are at the greatest risk of police misconduct – would be present at the negotiating table.

Qualified Immunity

Another barrier to accountability is what is known as qualified immunity , “a judicial doctrine that shields public officials, like police officers, from liability when they break the law.” Section 1983 of the Enforcement Act of 1871 strictly states that any state actor (like a police officer, a government employee) is liable for “‘the deprivation of any rights’” of citizens. In the 1960s, the Supreme Court judicially amended Section 1983 with the qualified immunity doctrine so the new standard of liability was the deprivation of “‘clearly established’” rights rather than “‘any rights’.”

Under the new terminology, “‘clearly established’” refers to precedent. This is another protection for officers who use their discretion in dangerous situations, but it also creates “ a high and unnecessary bar ” for proving officer wrongdoing. For example, when deputies in Georgia accidentally shot a 10-year-old child when aiming for a dog, the lawsuit the family filed was thrown out because the court “could not find precedent declaring this type of conduct unconstitutional.”

Ending qualified immunity would require federal legislation , which has been just one piece of the contentious debates in Congress. As of mid-2022, lawmakers have been unable to reach an agreement on police reform; bills passed the House but not the Senate.

States can take matters into their own hands. For example, they can bypass qualified immunity through their own legislation. Colorado’s SB217 “essentially bars government actors from using qualified immunity in state courts.” At a department level, liability insurance for law enforcement personnel, much like medical malpractice insurance for doctors, could offer police officers protection without shielding them from discipline. At the individual level, body cameras can protect officers from dubious claims while still holding them accountable for wrongdoing.

Reimagining the Police & Communities

Police culture.

In addition to the inherent dangers of their profession, police officers “experience job-related stressors that can range from interpersonal conflicts to extremely traumatic events, such as vehicle crashes, homicide, and suicide.” Congress passed the Law Enforcement Mental Health and Wellness Act of 2017 in acknowledgement of the need for mental health resources for police officers, but whether this has made a significant difference is unclear; according to Blue H.E.L.P. , officer suicides increased from 149 in 2016 to 239 in 2019, then fell to 174 in 2020 and 177 in 2021.  

The FBI reported 89 officers were killed in line of duty in 2019 , 93 were killed in 2020 , and 129 were killed in 2021 .This means more officers die by suicide annually than in the line of duty , and that is already considering suicide deaths are likely undercounted since there is no database that collects suicide-related data specific to law enforcement.

Low-risk encounters can inadvertently escalate when officers face heightened pressure, stressors, and trauma while on the job. Feeling overburdened, ill-equipped, and misunderstood creates a scenario in which officers can feel alienated from the communities they serve. Resources dedicated to helping officers develop techniques such as stress-coping skills, crisis management, and emotional intelligence training is one step towards addressing the “‘ police warrior ’” mindset and bridging gaps in community-police relations.

One method may be to redistribute officers across districts; a study from the National Bureau of Economic Research found more experienced officers use less force and make fewer arrests, but due to seniority-based process, districts with the most violent crime are staffed with less experienced cops that may be less effective at reducing that crime. Based on the assumption that senior officers are more effective at deterring crime, resolving situations, and exercising judgment due to experience, researchers determined crime would be reduced by almost 5% if senior officers were distributed across districts .

Sergeant Fred Jones notes that while “there will always be those that will not comply with the laws of society, and they will do anything not to be taken into custody,” emotional intelligence training plays an important role in police officers’ behavior, affecting how they treat others and themselves as they face these challenges on a daily basis (15 min):

Police Department Budgets

Spending on police has outpaced spending on education and community services in the past few decades. The premise behind the movement to defund the police “is that government budgets and ‘public safety’ spending should prioritize housing, employment, community health, education and other vital programs, instead of police officers.” Those who advocate defunding the police seek to redistribute a portion of funds that previously went to policing operations and correctional facilities. Instead of calling the police “to handle every societal failure,” funds and resources would instead be redirected to “supports for housing, mental health, addiction and employment” that could be more effective than arrests and jail time in solving underlying problems.

All of this makes cuts difficult, and the jobs of police chiefs to work within these constraints is made more difficult as well. In fact, by October 2020, 18 police chiefs from the U.S.’s 69 largest cities had “ resigned, retired, been pushed out or fired ,” citing protests for police reform and calls for budget cuts. On the whole, however, reporting from late 2021 indicates law enforcement staffing as a whole has been fairly stable.

Across the country from New York to Los Angeles , elected officials approved plans to cut police budgets, although “many of the cuts are cosmetic, temporary or represent a relatively small part of budgets.” Bloomberg CityLab data reports that 50 of the largest U.S. cities reduced their 2021 police budgets by about 5%, but that most of this was part of “broader pandemic cost-cutting initiatives,” and law enforcement as a share of expenditures was practically unchanged and even increased slightly in these cities. Cities including Minneapolis and Seattle paused these changes, and many more proposed funding increases for 2022 after rises in crime over the course of 2020. In New York City, current mayor Eric Adams ran on a platform that kept police funding stable . 

Even with intentions to redistribute funds elsewhere, defunding the police could backfire. “When police command staff are presented with a reduced budget,” explains former FBI special agent Errol G. Southers , “[t]hey will cut the costs of the many programs police departments provide that are outside of day-to-day law enforcement,” mainly those that engage young people and police officers. This leaves few interactions between the community and the police, and therefore few opportunities to increase levels of trust.

A compounding issue is that drops in police-civilian contact are often followed by increases in crime, particularly in minority communities, according to Harvard economist Roland Fryer . In these communities and many others, response infrastructure and regular patrols mean that police officers are often the quickest to respond to 911 calls.

Public concern about violent crime in the U.S. has shifted attitudes about police funding, with decreasing support for defunding the police and increasing support for more local police funding .

Another possibility could be, instead of defunding the police, ensuring police first responders  have the funds to equip them with the training and resources necessary to respond appropriately to all calls for help.

Others “are skeptical that existing police departments can ever be reformed” and believe “demolishing what is currently in place and starting from scratch” is the best option for transforming policing in America. They call not only to defund but to abolish the police . What this looks like is unclear. In June 2020, Seattle’s Capitol Hill neighborhood closed down precincts in response to mass demonstrations, and police did not respond to calls coming from the neighborhood. A group of local business owners sued the city , claiming, “‘Seattle’s unprecedented decision to abandon and close off an entire city neighborhood, leaving it unchecked by the police, unserved by fire and emergency health services, and inaccessible to the public’ resulted in enormous property damage and lost revenue.”

On the opposite side of the country, Camden, New Jersey embarked on a campaign that actually did abolish the police department in 2013, but the city had a clear plan in place that “set about rebuilding the police force with an entirely new one under county control.” Prior to 2013, “the police were despised by residents for being ineffective at best and corrupt at worst,” and in one case five officers were charged with evidence planting, fabrication, and perjury. The transition took time and involved dismantling police union contracts and overhauling the system for rating officers’ performance. Today, the force still faces issues with transparency and high turnover rates, but the homicide rate and rates of excessive use of force have dropped considerably. For more on Camden’s transition, see this feature (5 min):

Community Policing

Community policing is “a police strategy that utilizes local partnerships and greater decision-making authority among street-level officers in an effort to solve community problems.” Focusing on partnerships between police and communities directly addresses the conditions that result in public safety issues, and has been found to reduce crime as well as fear of crime and increase public satisfaction and positivity towards police. The Department of Justice’s Community Oriented Policing Service saw an increase in funding for FY2022.

Implementing community policing does not always result in a department-wide mindset shift; instead, many departments treat “this model of policing as a one-sided transaction carried out by a few officers in a special unit or through sporadic events or meetings.” Such departments may sustain the “‘ police warrior ’” culture with tactics such as suppression style policing, which “casts a wide net over a high crime area” by flooding it with law enforcement personnel. In doing so, explains Josh Crawford of Pegasus Institute , “you catch the big fish that are committing the overwhelming majority of violent crime in that area. The problem is, you catch a whole lot of small fish and you catch a whole lot of things that aren’t fish at all.”

This tactic presents a challenge for police-community relations . While it may be effective in catching criminals and deterring crime, there is “a growing body of research that suggests that citizen evaluations of the police are more connected to the way the police interact with the public than to the effectiveness of policing on crime.” If a community does not trust the police, they may not be willing to cooperate and it may be more difficult for police to solve crimes. If police have low crime resolution rates, the community may be even less trusting, creating a cycle of police-community alienation. Captain Chip Huth explains how these tactics affected the Kansas City Police Department, and what happened when officers changed their systems and mindsets (10 min):

Within individual cities and communities, changing training priorities may help police officers and citizens find middle ground. Of the 700 hours of average training for police recruits, about 60 hours are dedicated to firearms training and 50 hours to self-defense training. In contrast, fewer than 30 hours are dedicated to community policing, which includes mediation skills, conflict management, and human relations. The New Haven Police Department incorporated community policing as a training requirement for recruits. Recruits completed community projects in the city, such as organizing after-school activities or playing sports with kids at local parks. After the projects, recruits noted their time “substantially altered their perception of the neighborhoods” they would be serving.

Social worker Derrick Jackson of the Washtenaw County, Michigan Police Department explains how problem-oriented policing works , and how even former convicted criminals can make positive changes in their communities when the opportunities exist (9 min):

Increasing communications is an important step police departments can take. Although studies suggest citizens do not frequently access police department websites , the ones who do have positive views of police effectiveness and legitimacy. This provides police departments with an opportunity to create user-friendly websites and engaging social media accounts that support community-police collaborations by disseminating information to the public as well as inviting the public to share information.

Communities in Action

Eugene, Oregon: CAHOOTS

When calls to the Eugene Police Department do not involve legal issues or risk of violence, dispatch operators will forward those calls to the medics and crisis workers that are part of the White Bird Clinic’s Crisis Assistance Helping Out on the Streets (CAHOOTS) program . CAHOOTS, a collaboration between community social workers and police, has served as an alternative to police intervention since 1989. After receiving a call, a medic and crisis worker “ go out and respond to the call , assess the situation, assist the individual if possible, and then help that individual to a higher level of care or necessary service if that’s what’s really needed.” On average, the clinic’s teams answer between 15% and 20% of the calls that come to the police, and have needed to call for police backup on less than 1% of calls. The estimated savings for the city of Eugene are around $8.5 million annually.

See more about CAHOOTS in this feature (5 min)

Greater Syracuse, New York: 211

The city of Syracuse and surrounding suburbs have struggled with high levels of poverty since the 1970s, but the area’s plan to end unsheltered homelessness has been fairly successful. Instead of calling 911, a “robust 211 provider coordinates outreach response and shelter referrals and provides diversion assistance on a 24/7 basis” under the Continuum of Care system. Through the process, “City and County staff, who are charged with addressing homelessness, pro-actively engage with police, fire/EMS, and other first responders, as well as the local healthcare, criminal justice, and child welfare system.”

Volunteers in Police Service

Volunteer programs can also help law enforcement agencies “fulfill their primary functions and provide services that may not otherwise be offered,” such as social media outreach, community meetings, surveys, and civilian oversight boards. In Fort Wayne, Indiana, and Memphis, Tennessee, faith-based institutions have partnered with local police departments for specialized academies that train clergy members on police activity, allowing them to serve as ambassadors that can help build trust and communication among the congregation, community, and police.

The Volunteers in Police Service (VIPS) program, managed by the International Association of Chiefs of Police and the Bureau of Justice Assistance under the DOJ,  is a support system for police departments seeking to develop or expand citizen volunteer programs, or citizens looking to be more involved with their local law enforcement agencies.

Research is another integral component in helping law enforcement. Programs, volunteers, and community organizations are essential, but indications as to which services and systems are having the greatest impact is not always clear. This is where the University of Chicago’s Crime Lab saw an opportunity to assist. See what they’re doing (7 min):

The role of the police is to ensure the safety and security of those who uphold the law, and to protect and help communities from those who do not. But they need to do so without using tactics that disrespect civil liberties or generate animosity in the neighborhoods they serve. Policies and practices that focus on transparency and accountability can help bridge gaps between law enforcement personnel and communities. Individuals and communities that take responsibility for their safety can also foster mutual trust and understanding with law enforcement. Collaboration and opportunities to work together can make officers’ roles easier and make communities safer for everyone.

The Policy Circle would like to thank the following contributors for their assistance during the creation of this brief:

Brianna (Walden) Nuhfer, Stand Together Associate Director of Criminal Justice

Greg Glod, Americans for Prosperity Criminal Justice Fellow

Phil Andrew, Principal of PAX Group consultancy and former FBI agent and crisis negotiator

Quentella Enty, Director of Strategic Sourcing & Sustainability at KFA, Inc.

NCSL: Law Enforcement Overview

• Body-Worn Camera Interactive Map
• Legislative Responses for Policing – State Bill Tracking Database

George Mason University Center for Evidence-Based Crime Policy

NYU Policing Project

Police Data Initiative

• Participating Agencies

University of Chicago Crime Lab

National Initiative for Building Community Trust and Justice

Top Priority Podcast on Qualified Immunity with Greg Glod of Americans for Prosperity and Casey Mattox of Charles Koch Institute.

Measure : Find out what your state and district are doing about policing.

• Start by investigating the FBI’s Crime Data Explorer or the DOJ’s Uniform Crime Reporting Statistics .
• USA Today breaks down police department budgets in the 50 most populous cities in the U.S. – be mindful that some departments’ budgets are also funded by the county. 
• What are your state’s policies regarding reforms such as body cameras or use of force definitions ?
• How does your state or local law enforcement agency report data? Are they part of the Police Data Initiative ?
• Has your city or state enacted community policing legislation ?
• Do you know how law enforcement officers are trained in your state or community?

Identify: Who are the influencers in your state, county, or community? Learn about their priorities and consider how to contact them, including elected officials , attorneys general, law enforcement, boards of education, city councils, journalists, media outlets, community organizations, and local businesses.

• Are you familiar with your local law enforcement officers and their day-to-day roles?
• Who is your state attorney general ?
• Do you know the role of police unions in your state?
• Are there organizations or programs in your community, such as faith-based organizations or after-school programs, that engage with law enforcement?

Reach out: You are a catalyst. Finding a common cause is a great opportunity to develop relationships with people who may be outside of your immediate network. All it takes is a small team of two or three people to set a path for real improvement. The Policy Circle is your platform to convene with experts you want to hear from.

• Find allies in your community or in nearby towns and elsewhere in the state.
• Foster collaborative relationships with law enforcement officers, first responders, faith-based organizations, local hospitals, community organizations, school boards, local businesses, and academic institutions.

Plan: Set some milestones based on your state’s legislative calendar .

• Don’t hesitate to contact The Policy Circle team, [email protected] , for connections to the broader network, advice, insights on how to build rapport with policy makers and establish yourself as a civic leader.

Execute: Give it your best shot. You can:

• Volunteer with your police department or ask to participate in a ride-along to better understand police responsibilities.
• Ask your local officials to review local and county budgets, and ask them to invite public comment on budgeting to identify resources and funding gaps as well as understand what police obligations contribute to funding levels.
• Consider if there is an opportunity to bring a police-mental health collaboration to your community.
• Consider assessing the components that are integral to the function of police departments

Working with others, you may create something great for your community. Here are some tools to learn how to contact your representatives and write an op-ed .

Suggestions for your Next Conversation

Explore the series.

This brief is part of a series of recommended conversations designed for circle's wishing to pursue a specific focus for the year. Each series recommends "5" briefs to provide a year of conversations.

The Community Series

Police Reform and the Dismantling of Legal Estrangement

abstract . In police reform circles, many scholars and policymakers diagnose the frayed relationship between police forces and the communities they serve as a problem of illegitimacy, or the idea that people lack confidence in the police and thus are unlikely to comply or cooperate with them. The core proposal emanating from this illegitimacy diagnosis is procedural justice, a concept that emphasizes police officers’ obligation to treat people with dignity and respect, behave in a neutral, nonbiased way, exhibit an intention to help, and give them voice to express themselves and their needs, largely in the context of police stops. This Essay argues that legitimacy theory offers an incomplete diagnosis of the policing crisis, and thus de-emphasizes deeper structural, group-centered approaches to the problem of policing. The existing police regulatory regime encourages large swaths of American society to see themselves as existing within the law’s aegis but outside its protection. This Essay critiques the reliance of police decision makers on a simplified version of legitimacy and procedural justice theory. It aims to expand the predominant understanding of police mistrust among African Americans and the poor, proposing that legal estrangement offers a better lens through which scholars and policymakers can understand and respond to the current problems of policing. Legal estrangement is a theory of detachment and eventual alienation from the law’s enforcers, and it reflects the intuition among many people in poor communities of color that the law operates to exclude them from society. Building on the concepts of legal cynicism and anomie in sociology, the concept of legal estrangement provides a way of understanding the deep concerns that motivate today’s police reform movement and points toward structural approaches to reforming policing.

author. Climenko Fellow & Lecturer on Law, Harvard Law School; Ph.D. Candidate in Sociology & Social Policy, Harvard University. I am deeply indebted to the Johns Hopkins Poverty & Inequality Research Lab, particularly the PIs and fellow co-PI of the Hearing Their Voices (HTV) Study—Stefanie DeLuca, Kathryn Edin, and Philip Garboden. I gratefully acknowledge funding from the Annie E. Casey Foundation, Grant GA-2015-X3039, and the Johns Hopkins 21st Century Cities Initiative. I am grateful to the members of the HTV research team: Janice Bonsu, Steven Clapp, Meshay Clark, Kaitlin Edin-Nelson, Mitchell Generette, Marika Miles, Daveona Ransome, Larry Robinson, Trinard Sharpe, Geena St. Andrew, and Juliana Wittman. Many thanks also to two inspiring Baltimore organizations, Thread and the Youth Empowered Society (YES) Drop-In Center; special thanks to Sarah Hemminger and Frank Molina of Thread and Ciera Dunlap, Michael Jefferson, Sonia Kumar, and Lara Law of YES. For generous feedback and helpful suggestions, I thank Amna Akbar, Regina Austin, Ralph Richard Banks, Dorothy Brown, Jonathan Bruno, Devon Carbado, Guy-Uriel Charles, Matthew Clair, Beth Colgan, Sharon Dolovitch, Yaseen Eldik, Erik Encarnacion, Malcolm Feeley, Barry Friedman, Lisa Kern Griffin, Laurence Helfer, William Hubbard, Aziz Huq, Jeremy Kessler, Issa Kohler-Hausmann, Máximo Langer, Adriaan Lanni, Tracey Meares, Justin McCrary, Kimani Paul-Emile, Alicia Plerhoples, Megan Quattlebaum, Jed Shugerman, David Alan Sklansky, Seth Stoughton, Allison Tait, Shirin Sinnar, Tom Tyler, and Alexander Wang. I also thank Asad Asad, Amy Chua, Matthew Desmond, Michèle Lamont, Maggie McKinley, Judith Resnik, Robert Sampson, Stacey Singleton-Hagood, Jeannie Suk Gersen, and Bruce Western for consistent support and insight. This work benefitted from discussions at Boston College, Boston University, Brooklyn Law School, Columbia, Cornell, Duke, Fordham, Georgetown, New York University, Northeastern, Seton Hall, Stanford, University of California-Berkeley, University of California-Los Angeles, University of Chicago, University of Connecticut, University of Georgia, University of Pennsylvania, University of Richmond, University of South Carolina, University of Texas, William & Mary, and Yale University, and with participants in Yale Law School’s Moot Camp and The Yale Law Journal Reading Group. I am especially grateful for generative commentary and support from participants in the Duke University School of Law Emerging Scholars Workshop & Culp Colloquium, and for the editorial expertise of the staff of The Yale Law Journal , especially Peter Posada and Sarah Weiner. Most of all, I am grateful to the young Baltimoreans who shared their stories with us, whose lives are the reason that getting police reform right is so important.

Introduction

In the concluding paragraphs of her fiery dissent in Utah v. Strieff , 1 Justice Sotomayor invoked W.E.B. Du Bois, James Baldwin, Michelle Alexander, Ta-Nehisi Coates, and Marie Gottschalk in concluding that the Court’s decision, which further weakened the power of the exclusionary rule to deter unconstitutional police conduct, 2 sent a message—particularly to people of color—“that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.” 3 Justice Sotomayor laments “treating members of our communities as second-class citizens.” 4 Yet despite the boldness of her statements, in some ways Justice Sotomayor might not have gone quite far enough in articulating the troubling implications of our Fourth Amendment jurisprudence.

Justice Sotomayor’s analysis understates the problem on two fronts. First, in addition to the jurisprudential message that poor people of color are “subject[s] of a carceral state” or “second-class citizens,” research in sociology, criminology, political science, and other fields suggests that these groups often see themselves as essentially stateless—unprotected by the law and its enforcers and marginal to the project of making American society. Even as criminal procedure jurisprudence sets the parameters of what police may do under the law, it simultaneously leaves large swaths of American society to see themselves as anomic, subject only to the brute force of the state while excluded from its protection. The message conveyed in policing jurisprudence is not only one of oppression, but also one of profound estrangement.

A second understatement relates to the understanding of whose safety is at risk when the Fourth Amendment insufficiently checks the power of the police. Justice Sotomayor uses the second-person pronoun “you” to convey to a public audience both the universality and the personal proximity of the risk of police control. 5 Yet this literary technique, though effective, obscures the reality that the sense of alienation in a carceral regime emanates not only from what police might do to “you,” but from what they might do to your friends, your intimate partners, your parents, your children; to people of your race or social class; and to people who live in the neighborhood or the city where you live. In other words, estrangement from the American citizenry is not merely an individual feeling to which people of color tend to succumb more readily than white Americans do; rather, estrangement is a collective institutional venture.

The Black Lives Matter era has catalyzed meaningful discussion about the tense relationship between the police and many racially and economically isolated communities, and about how policing can be reformed to avoid deaths like those of Rekia Boyd, Michael Brown, Eric Garner, Alton Sterling, Philando Castile, and more. However, contemporary discourse has often neglected or obscured deeper discussion about the relationship between African Americans—especially poor African Americans—and the police. What is the nature of these relationships? How can scholars and policymakers more roundly understand their contours and potential strategies for change?

Many scholars and policymakers have settled on a “legitimacy deficit” as the core diagnosis of the frayed relationship between police forces and the communities they serve. The problem, this argument goes, is that people of color and residents of high-poverty communities do not trust the police or believe that they treat them fairly, and that therefore these individuals are less likely to obey officers’ commands or assist with investigations. 6 This argument took its most prominent position in the May 2015 Final Report of the White House Task Force on 21st Century Policing . The Report sets forth the goal of building trust and legitimacy as both the first pillar of its proposed approach to police reform and as “the foundational principle underlying [the Task Force’s] inquiry into the nature of relations between law enforcement and the communities they serve.” 7 “Trust” is a broad term, but the Report and much of the policymaking energy surrounding shifts in police governance adopt an understanding of trust that treats it as virtually synonymous with legitimacy. 8

Ample empirical evidence supports the idea that African Americans, and residents of predominantly African American neighborhoods, are more likely than whites to view the police as illegitimate and untrustworthy, along several axes. 9 Empirical evidence suggests that feelings of distrust manifest themselves in a reduced likelihood among African Americans to accept law enforcement officers’ directives and cooperate with their crime-fighting efforts. 10 According to much of this line of scholarship, the primary tool to achieve greater obedience to the law and law enforcement, regardless of race, is procedural justice: police officers treating people with dignity and respect, behaving in a neutral, nonbiased way, exhibiting an intention to help, and giving people voice to express themselves and their needs in interactions. 11

Yet many reformers would likely disagree that obedience to law enforcement is the central concern in America’s current conversation on police reform. Indeed, in many of the cases that have most catalyzed the Black Lives Matter movement, the victims of police violence were not disobeying the law, 12 were complying with officers’ demands, 13 or were suspected of violating petty laws that are likely unworthy of strong enforcement efforts or penalties. 14 A large body of scholarship on criminal justice attempts to denaturalize the assumed link between obeying the law and criminal justice contact. 15 Scholars have shown that recent trends in criminal justice such as pervasive stop-and-frisk, increased misdemeanor prosecution, and mass incarceration are not primarily consequences of increases in criminal offending. Instead, these scholars suggest that the American criminal justice system has dual purposes, only one of which is crime response and reduction. Its other, more insidious function is the management and control of disfavored groups such as African Americans, Latin Americans, the poor, certain immigrant groups, and groups who exist at the intersection of those identities. 16 From a social control perspective, increasing compliance and cooperation with law enforcement may well be valuable aims, but they should not be at the root of police reform efforts. Deploying legitimacy theory and procedural justice as a diagnosis and solution to the current policing crisis might even imply, at some level, that the problem of policing is better understood as a result of African American criminality than as a badge and incident of race- and class-based subjugation.

Reformers’ emphasis on police legitimacy has caused them to focus heavily on training of frontline officers to behave in a procedurally just manner during stops, with a goal of promoting legitimacy. The White House report, for example, names training and education of frontline officers as Pillar Five of a six-pillar approach, and training is mentioned as an “action item” under all of the five other pillars. 17 Numerous news reports, professional reports, and articles in professional magazines tout procedural justice as the key intervention that will resolve the problems that have catalyzed Black Lives Matter. 18 Police departments across the country, in wide-ranging cities such as Chicago, Illinois; Stockton, California; and Birmingham, Alabama, have implemented procedural justice training. 19 The Obama Justice Department’s consent decrees with troubled departments, such as Cleveland and Ferguson, mandate departments to adopt and implement procedural justice principles and training. 20 As the theory is at times presented, particularly among police officers, responding to the concerns of marginalized communities is as simple as following “the Golden Rule.” 21

While momentum for procedural justice training seems persistent on a local level, 22 the Trump Administration seems unlikely to embrace and advocate for this sort of reform. Trump has consistently indicated that he is generally supportive of police officers, but he has not fully articulated what support means at a concrete level. While Candidate Trump espoused the sanctity of state and local control over policing, 23 President Trump took to Twitter to threaten to send “the Feds” to Chicago to respond to shootings, which generally fall within the jurisdiction of local police departments. 24 Candidate Trump endorsed aggressive, ineffective “stop-and-frisk” policies 25 —meaning policies that target predominantly black and brown neighborhoods in the style declared unconstitutional in New York City, 26 not the stops-and-frisks based on individualized reasonable suspicion authorized in Terry v. Ohio . 27 Meanwhile, President Trump floated a preliminary federal budget, drafted by the Cato Institute, that indicated the administration would seek to eliminate funding for the Justice Department’s Office of Community Oriented Policing Services (COPS). 28 The COPS Office distributes federal funding to local departments to hire more police officers, which enables departments to hire enough officers to carry out intensive approaches like stop-and-frisk. 29 Without COPS funding, local departments may lack the staffing to fulfill Trump’s alleged goal of ratcheting up stop-and-frisk measures.

Recent executive orders on criminal justice, issued just one day after the Senate confirmed Trump’s Attorney General Jeff Sessions, continue in the ambiguous vein of supporting the police while gently alluding to ways that impulse might conflict with responding to the concerns that yielded Black Lives Matter. One executive order, for example, creates a “Task Force on Crime Reduction and Public Safety” that supports “law and order” and authorizes the task force to “propose new legislation that could be enacted to improve public safety and reduce crime”—language that sounds supportive of increased criminalization and expansion of the carceral state. 30 Another, which purports to prevent violence against police officers, similarly proposes “new Federal crimes, and increase[d] penalties for existing Federal crimes” against officers. 31 In the context of recent debates over police legitimacy and police-community relations, these orders implicitly paint the challenges facing criminal justice as stemming solely from criminality. They ignore the institutional failures of certain police departments and erase the structural underpinnings of tense police-community relations, specifically racial isolation and class marginalization.

The appointment of Jeff Sessions as United States Attorney General suggests that the Justice Department’s Civil Rights Division will end its investigations of local departments, 32 as it did under Attorneys General Alberto Gonzales and Michael Mukasey during the second George W. Bush Administration. 33 It is also likely that the DOJ’s funding support for the National Initiative for Building Community Trust & Justice, founded on legitimacy and procedural justice principles, will end. 34 Yet given the wide embrace of procedural justice on a local level and through national policing organizations, it would not be surprising if procedural justice remained the prevailing approach even if the federal government steps back from actively pushing it. 35

Choosing a theory of the policing crisis and its solutions is critical for advancing meaningful, effective reform. In the world of police governance and practice, perhaps more than in other spheres, theory matters for determining what police departments and officers do on the ground. Much of the impetus for broken-windows policing, 36 community policing, 37 “hot spots” (or focused deterrence) 38 and other predictive policing, 39 and now procedural justice and legitimacy came from or ripened in the academy. Through a panoply of large and small policy decisions, theory trickles into the daily work of frontline police officers. Thus, getting the theory right by accurately diagnosing the policing crisis is central to the practical project of reforming policing.

This Essay broadens the usual lens by proposing legal estrangement as a corrective to the prevailing legitimacy perspective on police reform. Like Justice Sotomayor in Strieff , 40 the legal scholars who are setting the police reform agenda have not fully captured the nature of the distrustful relationship between the police and poor and African American communities. The theory of legal estrangement provides a rounder, more contextualized understanding of this relationship that examines the more general disappointment and disillusionment felt by many African Americans and residents of high-poverty urban communities with respect to law enforcement.

Nearly twenty years ago, sociologists Robert J. Sampson and Dawn Jeglum Bartusch described “‘anomie’ about law” in predominantly black and poor neighborhoods in Chicago, a phenomenon they labeled “legal cynicism.” 41 By “anomie,” Sampson and Bartusch were describing ruptures in the social bonds that connect individuals to their community and, in particular, to the state through law enforcement. Building from their work and from other sociology and criminology scholarship on legal cynicism, 42 I introduce the concept of legal estrangement to capture both legal cynicism—the subjective “cultural orientation” among groups “in which the law and the agents of its enforcement, such as the police and courts, are viewed as illegitimate, unresponsive, and ill equipped to ensure public safety” 43 —and the objective structural conditions (including officer behaviors and the substantive criminal law) that give birth to this subjective orientation.

The concept of legal estrangement has the power to reorient police reform efforts because it clarifies the real problem of policing: at both an interactional and structural level, current regimes can operate to effectively banish whole communities from the body politic. The legal estrangement perspective treats social inclusion as the ultimate end of law enforcement. This view extends and reformulates the legitimacy perspective, which tends to present inclusion primarily as a pathway toward deference to legal authorities. 44 The legal estrangement approach encourages a fuller, theoretically informed set of interventions into police governance.

Part I locates distrust of the police among many African Americans and in many disadvantaged neighborhoods as a particular, poorly understood problem. To illustrate the analytical advantages of legal estrangement over legitimacy theory, Part II tells the story of Shawna, a young African American woman living in Baltimore, Maryland. Part III explains how legitimacy theory and legal estrangement theory take different approaches to understanding the current policing crisis. It demonstrates the power of legal estrangement theory to improve legitimacy theory and its concomitant procedural justice approach, which has had great influence over the police reform agenda. 45 Part IV erects a tripartite theory of legal estrangement. It posits that three types of socio-legal processes contribute to legal estrangement: procedural injustice, vicarious marginalization, and structural exclusion. In addition, Part IV illustrates the lived experience of these phenomena using portraits from rich narrative data collected from youth in Baltimore, Maryland in the wake of the death of Freddie Gray. Part V moves from the critical and theoretical to the prescriptive. It argues that, in order to dismantle (or at least to reduce) legal estrangement, multiple levels of government must engage in policy reform aimed not only at procedural injustice, but also at vicarious marginalization and structural exclusion. These reforms have a greater likelihood of producing social inclusion, the deepest purpose of the policing regime.

I. the blight of police distrust in african american communities

For as long as scholars have studied the relationship between African Americans and criminal justice, they have documented deep distrust of the system. In the early twentieth century, W.E.B. Du Bois was likely the first scholar to empirically document this distrust. 46 As part of a series of studies of African American life, Du Bois and his collaborators collected survey, interview, and administrative data on crime, arrest, and incarceration . 47 They found, among other things, that white officials and black men had greatly divergent perspectives on the possibilities of justice for African Americans in Georgia courts. 48 Du Bois reasoned that punishment practices prevalent at the time, such as lynching, “spread[] among black folk the firmly fixed idea that few accused Negroes are really guilty.” 49 He also condemned the relative lack of legal protection for African Americans, as well as criminal justice practices such as the leasing of convicts, that sent a message to African Americans that the purpose of the system was to make money for the state rather than to rehabilitate supposed lawbreakers. 50

Du Bois’s research was prescient, at least with respect to the direction of research and scholarship on African Americans’ relationship to the crime control system over the next century. A high watermark was the 1968 Kerner Commission Report, commissioned by the Johnson Administration in the wake of twenty-three episodes of urban unrest during the mid- and late 1960s. 51 The Report concluded that, for many African Americans, the “police have come to symbolize white power, white racism, and white repression.” 52 Like Du Bois’s Georgia study, the Report documented “tension” and “hostility” between law enforcement and urban African Americans, blaming the “abrasive relationship” on a combination of increased demands for protection and service and the police practices thought necessary to provide those services. 53 In the South and in the Northeastern and Midwestern Rust Belt cities where many African Americans relocated during the Second Great Migration, police forces often functioned to maintain the expulsion of African Americans from the center of social and political life, at times violating the law in service of racial control. 54 Despite pervasive harsh policing that ostensibly was intended to suppress and deter crime, African Americans felt inadequately protected. 55

The litany of evidence confirming the existence of a tense and distrustful relationship between African Americans and law enforcement mounted steadily over the ensuing decades. John Hagan and Celesta Albonetti, for example, used data from a national survey conducted in the late 1970s to conclude that, although African Americans were more likely than whites to see all aspects of the criminal justice system as unjust, they perceived the police as the most unjust aspect of the criminal justice system. 56 Drawing from nationally representative survey data from the late 1980s, Tracey Meares argued that many African Americans experience “dual frustration” with drugs on the one hand and with harsh courts and law enforcement on the other. 57 More recently, Lawrence Bobo and Victor Thompson reached similar conclusions, finding that while sixty-eight percent of white respondents expressed at least “‘some’ or ‘a lot’ of confidence in the police,” only eighteen percent of black respondents would say the same. 58 Contemporary events, particularly the increased political, social, and academic attention directed at police use of force because of the Black Lives Matter movement, have shed new light on longstanding tensions between African Americans and law enforcement. 59 Newer research embeds the problem of police distrust within a larger framework of race- and class-based marginalization, examining a range of police practices and neighborhood conditions. 60

Much of this research documents African American distrust or dissatisfaction with the law and law enforcement without clearly articulating the meaning of distrust or the precise content of dissatisfaction. This omission could exist, in part, because the sources of distrust and dissatisfaction are seen as relatively obvious. A large body of historical research has documented the entanglement of police in the long-running national project of racial control. 61 Yet our failure to be specific about the meaning, origins, and content of distrust has produced a worrisome incompleteness in the diagnosis of the problem, and thus in the prognosis and program of treatment. 62

Trust is a multidimensional, difficult-to-define concept that scholars operationalize using myriad approaches. 63 Yet in the world of policing scholarship, the leading scholar and definer of trust is Tom Tyler. Rather than understanding trust and legitimacy as synonymous, Tyler conceptualizes trust as part of the larger umbrella of legitimacy. Theoretically, Tyler defines legitimacy as a person’s “perceived obligation to obey” the law, 64 or “the belief that legal authorities are entitled to be obeyed and that the individual ought to defer to their judgments.” 65 Different surveys and experiments define legitimacy in distinctive ways, but the core formulation considers people’s sense of obligation to follow the law; their sense of whether the law “operates to protect the advantaged” (which Tyler and Huo call “cynicism about the law”); 66 their trust in legal institutions, specifically police officers and judges; and their favorability toward the police and the courts in their city. 67 The conceptual distinctions between all of the manifestations of trust that appear in the large body of legitimacy scholarship can become blurry, and it is beyond the scope of this Essay to reconcile all of these iterations. The core insight to keep in mind is that, in the version of legitimacy theory that policing policymakers have adopted most completely, trust between police and communities is understood as a problem of illegitimacy: the key concern is the degree to which people will choose to obey the law and its enforcers.

Much literature has shown that, regardless of how trust is measured or conceived, African Americans, particularly those who are poor or who live in high-poverty or predominantly African American communities, tend to have less trust not only in police, but also in other governmental institutions, in their neighbors, and even in their intimate partner relationships in comparison to other racial and ethnic groups in the United States. 68 The picture that emerges from the full body of research on race and trust is one of profound marginalization, a social diminishment that—while not encapsulating the fullness of the African American experience—indicates that poor African Americans as a whole tend to have a social experience distinctive from those of other ethnic and class groups in the United States. Structural disadvantage yields a broader cultural structure of mistrust. Most discussions of African American distrust of the police only skirt the edges of a deeper well of estrangement between poor communities of color and the law—and, in turn, society.

ii. two diagnoses

A. a crisis of legitimacy.

The most widely accepted diagnosis of the cleavage between the police and African Americans (particularly poor African Americans) centers on legitimacy . Scholars argue that African Americans are less likely than other groups to see the police as legitimate authorities, meaning that as a group they are less likely to have “a feeling of obligation to obey the law and to defer to the decisions made by legal authorities.” 69 Although trust and legitimacy are distinct concepts, scholars and policymakers tend to treat the ideas as functionally equivalent for reform purposes. The core determinant of whether law enforcement is perceived as legitimate, and thus worthy of obedience and assistance, is whether police officers behave in a procedurally just manner. 70 Procedural justice is believed to encapsulate several components, including treating people with dignity and respect, voice (which can include citizen participation and allowing individuals to express their concerns), neutrality (freedom from bias), and conveying trustworthy motives (explaining how the police are helping reach an important social goal). 71 Tyler and his colleagues were not the first to articulate a socio-legal rationale for procedural justice, 72 but their formulation has had the greatest influence over the push toward procedural justice in policing.

An overview of the genealogy of police legitimacy theory is helpful for distinguishing it from legal estrangement. Although the research on police legitimacy primarily draws from social psychology, the theoretical underpinnings of the concept (like much of the scholarship on legal legitimacy across domains) 73 usually derive from the work of sociologist Max Weber. 74 From Weber’s standpoint, legitimation is a subjective process: it does not inhere in an authority’s procedures or existence, but is continuously negotiated with subjects, taking into account their views. 75 Weber classified the types of authority that legitimate orders tend to exhibit into three “ideal types ” 76 : charismatic authority, or authority based on perceived personal divinity or exemplariness; traditional authority, based on custom and epitomized by the King; and legal-rational authority, the form of authority found most frequently in modern advanced society, which is based on process and consent. 77 Weber believed that legal-rational authority (the focus of nearly all research on legitimacy today) is, in some ways, the preferred version of legitimation because this legitimation strategy makes clear that, in choosing government through transparent, rational means, human beings are exercising their autonomy and free will. 78 While the threat of violence from the state always lurks, the state’s authority over its citizens primarily comes from the state’s adherence to process. 79

In the legal and political realms, 80 the purpose of legitimacy theory is to understand how the state, from a moral perspective, justifies its power and how, as an empirical matter, it most effectively exercises power over its subjects. 81 State power is the ultimate focal point of legitimacy analysis. 82 The question then becomes, how does the state attain power over its subjects? Theorists such as Habermas refined the concept of legitimacy to emphasize consent, adding a layer of deliberation and positing that legitimacy can be built through dialogue among equal citizens. 83 Along these lines, but with concern about the normative implications of consent, Gramsci argued that governments (and more precisely, capitalist governments) gained legitimacy through ideological and cultural hegemony: legitimation is a bundle of processes that elites use to procure public buy-in to oppressive systems. 84

Regardless of the normative valence of consent, its emphasis in the study of legitimacy has led social psychology research to focus largely on what makes people voluntarily obey and help the state. 85 This consent-based conception of legitimacy falls in line with a focus among policymakers on how to increase voluntary adherence to the law. 86 The empirical work also tries to ascertain how the circumstances under which the community sees legal authority as legitimate might vary across groups.

This focus on consent has produced some insights about the nature of racial divergence in police legitimacy. Two insights have been most central. First, across racial-ethnic groups, people tend to view police as legitimate when they are procedurally just , and people tend to interpret fairness similarly across ethno-racial divides. 87 Second, the primary reason African Americans do not see police as legitimate is because they tend to have more personal experiences in which police officers treat them in a procedurally unjust manner. 88 Although little is known about the specific behaviors and practices that people consider fair or unfair, 89 the police legitimacy literature empirically shows that people want the same type of treatment from police regardless of their race or class. This conclusion means that African Americans’ greater distrust of the police results not from supposed subcultural values or “bad culture,” but instead arises as the product of negative personal experiences.

This insight has driven legal scholarship in several directions. 90 Most central to the analysis of this Essay, police legitimacy scholarship encouraged legal scholars to explore ways that the law might better facilitate procedurally just policing and respond to procedurally unjust policing policies and practices. Steven Schulhofer, Tom Tyler, and Aziz Huq present one of the most fully elaborated applications of legitimacy theory to policing, applying the theory to both conventional and counterterrorism policing. 91 They set forth three policy goals that should emanate from the procedural justice policing model: (1) training officers to treat force as a last resort and “to view every citizen contact as an opportunity to build legitimacy through the tone and quality of the interaction”; 92 (2) eschewing regulation of the police through the blunt instruments of the law (for example, the exclusionary rule) in favor of internal department management policies designed to positively motivate police to treat the public fairly; 93 and (3) in the counterterrorism realm, avoiding the impulse to authorize the use of harsh tactics such as ethno-racial profiling and random checkpoints. 94 Schulhofer, Tyler, and Huq’s approach is distinctively what Rachel Harmon calls “non law,” 95 in the sense that it explicitly rejects legal intervention into policing. Their core suggestions are training, the substance of which is highly discretionary and rarely encoded directly into law, and avoiding litigation-based pathways toward systemic reform, such as the Department of Justice consent decree process. The solutions do not involve creating, changing, or enforcing the law. This means that, even if these approaches are effective, they largely leave intact the legal structure that has given birth to distrust and illegitimacy.

Meares has made several proposals to encourage departments to adopt principles of procedural justice. Conceptually, she has advanced the notion of “rightful policing,” the idea that policing should be designed to maximize both lawful conduct and community perceptions of police legitimacy. 96 Building in part from Schulhofer, Tyler, and Huq’s idea that persuading and incentivizing police to treat people fairly will be more effective than forcing them to do so, Meares’s scholarship has embraced community policing efforts such as Project Safe Neighborhoods in Chicago, Illinois, Project Exile in Richmond, Virginia, and Operation Ceasefire in Boston, Massachusetts. These programs’ methods include organizing meetings with ex-offenders to build relationships and inform them of alternative opportunities to crime, as well as holistic problem-solving approaches, such as legitimacy-based “hot spots” policing (also known as focused deterrence). 97 These approaches are a sort of proactive policing that should, according to their proponents, avoid the pitfalls of earlier forms of broken-windows policing because they now emphasize procedural justice in the micro-level interactions of police contact. 98

Scholars have proposed a variety of other interventions to build legitimacy, as well. For example, some have proposed that law enforcement randomize police stops and searches. In theory, randomization should allow police to engage in hands-on crime prevention without negatively impacting the legitimacy of the system by making specific people, particularly young African American and Latino men, feel targeted. 99 Other scholars have incorporated these concerns about spatial and racial distribution of procedurally unjust policing into Fourth Amendment arguments. They propose that courts should consider whether officers were making an individualized determination of suspicion, as constitutionally required, 100 or rather engaging in a collective determination of suspicion based on race and geography. 101 Other recent work proposes using a disparate impact framework, similar to that used in Title VII analysis, to assess the spatial and racial impacts of stop-question-frisk. 102

The greatest strength of the police legitimacy approach is its deceptive simplicity. Its two core ideas—that people will accept unfavorable police decisions so long as the preceding processes are perceived to be fair, and that the police should treat all people, including African Americans and the poor, with dignity and respect in order to be more effective at the work of crime deterrence —are marked deviations from the prevailing wisdom about policing that preceded legitimacy theory. For example, as noted above, the Kerner Commission Report partly blamed African Americans’ cynicism about the police on the harsh tactics that police deemed necessary to control crime in predominantly black inner-city neighborhoods. 103 In one of the earliest in-depth studies of urban police, William A. Westley found that the police officers he studied tended to view both African Americans and residents of poor neighborhoods as requiring a fundamentally different type of policing than other groups because those two groups would “respond only to fear and rough treatment.” 104 Officers today are not as likely to overtly express racial animus, but they might use different language focused on class and “culture” to make a similar point. 105 Justifications for race- and class-differentiated policing partly derive from a view that police tactics must vary by the type of community in order to be effective. The procedural justice approach is a partial corrective to that common wisdom.

However, police legitimacy is not all-encompassing, and it is often disturbingly oversimplified in practice.Policymakers and police department leaders attempting to apply the theory often condense it to empirically informed officer politeness. 106 Most legitimacy scholars would not claim that the lack of legitimacy is the sole problem in the relationship between law enforcement and African American and poor communities, or that procedural justice is the only solution needed. 107 Yet much of the current reform conversation has drawn heavily on legitimacy theory and the procedural justice approach as if they are silver-bullet solutions to today’s policing crisis. Reformers have done so in part because the proposals that emanate from the procedural justice perspective, such as improved officer training, 108 are relatively easy for police agencies to implement, relatively inexpensive, and relatively noncontroversial—while offering some real, on-the-ground benefits to civilians who encounter the police. 109

If the solution to today’s social and legal policing problems is training, the path forward is clear. Yet some scholars have worried that without an emphasis on the problem of collective estrangement through social and racial control, the procedural justice solution could paradoxically teach officers more effective ways to discriminate and violate privacy. 110 Indeed, Fourth Amendment jurisprudence on the voluntariness of searches foregrounds this danger. Courts often mention the politeness or courtesy of officers when using a totality of the circumstances analysis to decide whether a warrantless search was voluntary, at times debating the relative importance of politeness in the voluntariness analysis. 111 Thin conceptions of procedural justice could produce what Jeremy Bentham called “sham security,” 112 leaving some individuals with a vague sense that they have been treated justly while neglecting more fundamental questions of justice.

An expanded theoretical approach understands distrust as a problem of legal estrangement: a marginal and ambivalent relationship with society, the law, and predominant social norms that emanates from institutional and legal failure. In the following Part, I discuss estrangement theory and its distinctions from police legitimacy theory in greater detail. The legal estrangement perspective can provide a fresh perspective in research and policy on the extent to which African Americans and people who live in high-poverty communities feel a sense of solidarity with law enforcement and other legal institutions. Moreover, this approach could help scholars and policymakers imagine new ways to promote solidarity and social inclusion through law and policy.

B. A Crisis of Estrangement

While legitimacy theory has its roots in Weber, 113 the distinctive elements of legal estrangement theory are rooted in Émile Durkheim. For Durkheim, the central project of modern society is to maintain “organic solidarity,” defined as social cohesion based on fulfillment of the different functions each person serves within society. 114 Ideally, law’s function is to create and maintain social cohesion. Law is not understood as an end in itself, nor solely a means of bodily control. 115 In the Durkheimian view, the purpose of criminal justice is to restore those who break the law, with the ultimate goal of increasing social cohesion by reinforcing moral and legal norms. 116 A society that does not reinforce moral norms, and does not promote social trust, leaves its inhabitants in a state of anomie, with broken social bonds.

Although Durkheim originated the concept of anomie, the idea gained greater precision (and liberation from its purely pro-state perspective) in the work of Robert Merton. For Merton, anomie is “a breakdown in the cultural structure” of society. 117 These breakdowns are particularly likely to occur “when there is an acute disjunction between the cultural norms and goals and the socially structured capacities of members of the group to act in accord with them.” 118 In other words, cultural structures break down when, despite a group’s adoption of “mainstream” cultural norms and goals, certain aspects of the social structure prevent them from being able to act in ways that support those norms and goals. Although the suitability of Durkheim’s comprehensive view of law and punishment for modern contexts is questionable, 119 the broadest reading of anomie theory—that the purpose of the legal system is to create a cohesive and inclusive society, and that a broken social order leaves some people without the resources for full social membership—is at the root of legal estrangement theory.

A century after Durkheim originated the anomie concept and decades after Merton refined it, sociologists Robert Sampson and Dawn Jeglum Bartusch offered “legal cynicism” as a framework for understanding how residents of predominantly African American neighborhoods in Chicago thought about the law and its enforcers. 120 Sampson and Bartusch defined legal cynicism as“‘anomie’ about law.” 121 Anomie is more than distrust. Instead, it is a sense that the very fabric of the social world is in chaos—a sense of social estrangement, meaninglessness, and powerlessness, often a result of structural instability and social change. 122 It is a sense founded on legal and institutional exclusion and liminality. 123 Perhaps the strongest articulation of legal anomie comes from eminent ethnographer Elijah Anderson, who credited the tendency to use extra-legal forms of violence among some of his research subjects in inner-city Philadelphia to “the profound sense of alienation from mainstream society and its institutions felt by many poor inner-city black people . . . . ” 124 In contrast, law that is well designed and properly enforced should reassure community members that society has not abandoned them, that they are engaged in a collective project of making the social world.

One concern with labeling “anomie about law” as “legal cynicism” is that the word “cynicism” suggests that the attitudinal perspective of communities is the issue of interest rather than the process that led to a cultural orientation toward distrusting the police. The “legal cynicism” term works for the approach taken by Sampson and Bartusch as well as that of Kirk and Papachristos, as both seek to link “legal cynicism” (as measured in a survey) with a number of outcomes. However, anomie refers not only to the subjective feeling of concern; it is also meant to implicate a particular set of structural conditions that produced that subjective feeling. 125 I use “legal estrangement” in this Essay to better capture the fullness of the idea of anomie about law. Legal estrangement can help scholars understand situations where, even despite the embrace of legality by African Americans and residents of high-poverty neighborhoods, and regardless of the degree to which they embrace law enforcement officials as legitimate authorities, they are nonetheless structurally ostracized through law’s ideals and priorities.

The theoretical and empirical genealogies of legitimacy and legal cynicism reveal important distinctions. First, the overwhelming majority of the legitimacy research has sought to describe a general perception of law enforcement and legal authority, based on a representative sample of the public. 126 In contrast, scholarship on legal cynicism—the attitudinal portion of legal estrangement theory—has generally sought to describe a contextualized, ecological view of law enforcement. This scholarship has particularly focused its efforts on understanding the nature of the fraught relationship between African Americans and high-poverty communities on the one hand, and the police on the other. 127

Legal estrangement is a cultural and systemic mechanism that exists both within and beyond individual perceptions. It is partly representative of a state of anomie related to the law and legal authorities, and it interacts with legal and other structural conditions—for example, poverty, racism, and gender hierarchy—to maintain segregation and dispossession. The salience of a targeted, collective, community-oriented analysis is even greater when seeking to understand the realities that gave birth to Black Lives Matter. Many scholars and advocates have argued that African Americans are particularly likely to assess the legitimacy, effectiveness, and justness of institutions based on their beliefs about how these institutions treat African Americans as a group , and not just their individual experiences. 128

A person could simultaneously see the police as a legitimate authority (believing that individuals should obey officer commands in the abstract) and feel estranged from the police (believing that the legal system and law enforcement, as the individual’s group experiences these institutions, are fundamentally flawed and chaotic, and therefore send negative messages about the group’s societal belonging). 129 Some scholarship on the legal mistrust of poor African Americans could be misread to suggest that a large subset of this group possesses values that are antithetical to law-abiding behavior, almost as if these individuals do not care what the law is and do not believe they should be bound by it. A better-supported interpretation is that many poor African Americans might see police as a legitimate authority in the ideal, and might even empathize with some police officers’ plight, but they find the police as a whole too corrupt, unpredictable, or biased to deem them trustworthy. 130 Even as they accept the ideal vision of the police as the state-authorized securers of public safety, their nonideal working theory might be, as earlier research suggests, that the police are “just another gang.” 131

Estrangement theory can improve legitimacy theory in three main ways. First—certainly in its initial stages—legitimacy theory has emphasized whether people feel voluntarily obligated to obey or cooperate with law enforcement. The theoretical starting point of legitimacy analysis is whether and how the state maintains and exercises its power. In an analysis based on legal estrangement theory, increasing the power of the state bears at most a spurious relationship to the outcome of concern, which is social inclusion across groups. From a robust legal estrangement perspective, the law’s purpose is the creation and maintenance of social bonds. An emphasis on inclusion implies concerns not only about how individuals perceive the police and the law (and thus whether those individuals cooperate with the state’s demands), but about the signaling function of the police and the law to groups about their place in society. While legitimacy theorists might acknowledge the value of these sorts of community feelings, they are not those theorists’ key variables of interest. 132 Shifting the orientation of legitimacy theory from governmental power to social inclusion is one way that theory can better capture the concerns of activists in the era of Black Lives Matter.

Second, given its origins in legal cynicism theory, a legal estrangement perspective emphasizes cultural orientation toward the police rather than individual attitudes about the police. A cultural inquiry is concerned with the symbolic and structural meaning of the police to particular groups of people, as opposed to those individuals’ opinions about police interactions. People’s opinions about their interactions with the police, their beliefs about whether the police in general tend to be helpful, and the symbolic meanings they attach to the police can be sharply divergent from each other. 133

Third, while most legitimacy theorists treat individuals as their unit of analysis and theorization, the legal estrangement framework is ultimately focused on groups and communities.Even as studies are unavoidably conducted by looking at individual experiences, the broader concern of legal estrangement is with understanding people in situ. Viewing distrust of the law as a problem of social psychological legitimacy suggests more micro-level solutions to the problem, centered on changing individual perceptions of the law and law enforcement. Conversely, seeing distrust as a problem of legal estrangement (legal anomie) focuses solutions on unsettling characteristics of the social structure. The goal is to enable marginalized groups to align their values of law-abiding and respect for law enforcement with their lived experiences and strategies for interacting with law enforcement.

table 1. legitimacy and legal estrangement 134

iii. the legal socialization

To more clearly illustrate some on-the-ground improvements that a legal estrangement perspective offers to legitimacy theory, this Part presents a portrait of Shawna. Shawna is one of sixty-four participants in Hearing Their Voices: Understanding the Freddie Gray Uprising , a study I led a few months after the Freddie Gray incident and subsequent unrest in Baltimore. 137 The purpose of this profile is to articulate, in a more grounded way, key distinctions between what scholars and policymakers usually learn from a police legitimacy perspective and what they can learn from a legal estrangement perspective. Shawna 138 has a complex, but largely distrustful, perspective on the police. This Part and the vignettes in Part IV capture, in a more textured fashion, the multitude of factors that can contribute to legal estrangement. 139

Growing up in West Baltimore’s Gilmor Homes in the mid-aughts, Shawna developed an affinity for chess, American Sign Language, and most of all, pick-up basketball. “I just played basketball all day, every day. Nine o’clock in the morning until nine o’clock at night when my mom was calling me to get off the court, that’s where I was at.” 140

During Baltimore’s sticky summers—the time of year when the rate of violent crime is at its apex 141 —Shawna sought freedom and community on Sandtown-Winchester’s asphalt basketball courts. One can imagine Shawna sucking in the steamy air, wearing basketball shoes not unlike the red and white Nikes she is wearing now, teasing her opponents, being a kid. “I wanted to stay outside as long as I can,” she explained. “Stay outside until nine or ten o’clock, in the summer time especially, yes. That’s when the most violence happens, but that’s when the most fun happens.” Shawna understood pleasure more viscerally than danger, despite everything she had seen.

One of Shawna’s first virtues was vigilance. She learned early how to manage the potentially deadly situation of being outdoors in the Gilmor Homes. “Just being so young, you have to be aware. I mean, you can have fun, but just be aware of what’s really going on around you. There was so much drug activity. But, being so young, I didn’t really pay a lot of attention because I was just worried about having fun.”

Despite the pestilence of untimely death that—then and now—marks her neighborhood, 142 Shawna has thus far been spared the memory of seeing a human being die. But she is familiar with the pop-pop-pop of gunshots interrupting a basketball game. She can still hear the hum of an open-windowed truck rolling closer while prowling for targets, the screams of neighbors recognizing a familiar horror, the thumps of her playmates’ chests hitting the ground seeking safety, and the thuds of their shoes rapidly beating the hot asphalt where they had been dribbling a ball moments earlier. She remembers that a sudden paralysis afflicted her limbs on those occasions. She remembers that her mother would run to her, corral her. “Somebody would get shot. Somebody would get killed. Somebody would get stabbed. Outside my house, in front of my house, on the basketball court, where I spent most of my time there, for real.”

Shawna’s mother Denise was, in Shawna’s estimation, “paranoid.” Every now and then, Denise got fed up and called the police about various neighborhood disturbances. “She’s a good person,” Shawna explained. But Denise avoided calling the police from her own phone and instead went to a neighbor’s home to call. To be sure, Denise sometimes called police from a neighbor’s phone because her own phone was disconnected. But Shawna suspects that the more usual reason Denise called from her neighbor’s phone was so the call would come from a number other than hers, making it more difficult for police and potential retaliators to learn that she was the snitch. “She had to call from some [other] number because she just—it was unsafe for her.” People can call the police “anonymously,” 143 but Denise suspected the police would find out who she was anyway, and that they would be too careless to protect her identity.

Denise warned Shawna about crime in the neighborhood and kept Shawna indoors as much as the active, extroverted girl could tolerate. Denise also warned Shawna about the neighborhood’s police, petrified by her daughter’s awe of them.

“[W]hen I was little,” Shawna recalled, “I used to idolize the police. And I used to be like, ‘Oh, can I be like you when I grow up? What is it that you do?’ Asking them a whole bunch of questions.” Her mother urged her to stay away from police officers. Once, when Shawna was about eight years old, she was chatting with two white police officers who she thinks were in the neighborhood to investigate drug activity. As Shawna remembers it, she asked the officers what they do, how she could become a police officer, and so on. “I was a serious young lady,” Shawna joked. Denise saw Shawna with the officers and panicked. “Get over here! Get over here! Get over here, girl!” Shawna asked, “[W]hat did I do?” Denise continued, agitated. “Who told you to talk to them? They can do anything to you. They can take you and kill you!” Shawna was perplexed. “They’re police. Why would they just take me and kill me?”

Over the decade or so since that incident, Shawna’s once-pristine view of police has grown ever more tainted. This tarnishing process has been propelled not only by her personal experiences, but also through witnessing the encounters of her friends and neighbors, hearing about other incidents through television and social media, and gaining folk wisdom from family and older community members. For example, several years before the Daniel Holtzclaw case broke, 144 as a pubescent girl, Shawna learned from her grandmother that the police could rape her.

I don’t know the whole story, but my grandma told me how one of the police in my community . . . some man had taken this little girl. She was about twelve. I don’t know if she was missing or if he just took her anyway. He took her and he raped her in the back of the police station and they caught it on camera. Then my grandmother told me about it. I was like twelve at the time, which was just a couple of years [after the rape]. I was like, “Wow.”

Shawna’s confusion grew. “The police is supposed to have power and supposed to be using it for good.” But the police also “did that to that little girl. It’s just terrible.” That story, funneled through her beloved grandmother, is now embedded in her psyche and colors her more recent experiences with and observations of police officers. “That just made me think twice about the police ever since then. I just don’t know.”

The case Shawna is likely referencing involved William D. Welch, a former Baltimore police officer who entered an Alford plea 145 to a charge of misconduct in office in early 2008, when Shawna was ten. 146 After another officer arrested a sixteen-year-old girl based on an open warrant for prostitution, Welch allegedly offered to dispose of marijuana that was in her possession if she sexually serviced him. According to the accuser, she and Welch flushed the marijuana down a police station toilet and returned to the interview room, where she complied with his conditions. 147 Prosecutors originally charged Welch with second-degree rape. However, after the police department’s Evidence Control Unit misplaced much of the physical evidence against Welch, prosecutors offered, and Welch accepted, a plea deal. 148 Welch thus avoided prison. A judge sentenced Welch to a suspended ten-year prison term after three years of probation and ordered him to resign from the Baltimore Police Department. 149

But Shawna might have been talking about a different case. There were other prominent rape cases against Baltimore police officers in roughly the same time period. Like the Welch case, the facts of those cases do not perfectly align with the story lodged in Shawna’s mind today. 150

Shawna’s understanding of the police grew darker still through encounters and observations at the bus station near the iconic Mondawmin Mall, arguably West Baltimore’s central hub. Mondawmin, one of the city’s oldest enclosed shopping malls, is more than a retail center. It is also the nerve center for ten West Baltimore bus lines and the location of government social services offices and various health clinics. 151 Inside the mall, uniformed private security guards are tasked with maintaining Mondawmin’s security, while on the outside, Western District police officers handle the job. Shawna does not distinguish between the public and private police. She just knows that when she is in or near Mondawmin, she encounters hostile people in uniform. 152 Shawna reports several negative encounters there, but nothing that would earn the attention of journalists, researchers, or most advocates. She has experienced, at most, (possibly idle) threats—that the next time a police officer sees her, he will mace or even arrest her. These threats, these forceful words, would not register as “uses of force” in the most sophisticated studies of police encounters. 153 Yet they have constrained her movement. The grind of injustice has led Shawna to avoid Mondawmin as much as possible, though the mall’s ubiquity makes it hard to fully escape.

I stopped going to Mondawmin because the police up there are rude. I mean, I know you’re trying to keep order and peace, but you don’t have to disrespect me and threaten me every five seconds. They threatened to mace people if they don’t get to their bus stop. Then the man told me he was going to arrest me because I was talking to my home girl and I wouldn’t get on the bus. It wasn’t my bus. I was at the bus stop talking to her. Why are you threatening to arrest me?

Shawna claims that the officer followed her and her friend after they began to walk away. “He kept getting smart with his little cowboy boots. I was just like, ‘Who are these police?’ Like, where did they come from?” Shawna had a few stories from Mondawmin, including watching a young man get arrested who “wasn’t probably all innocent” but in her view “wasn’t doing anything he wasn’t supposed to be doing.”

The Gilmor Homes, where Shawna spent the first sixteen of her nineteen years, has recently been in the national media as the home of Freddie Gray, the twenty-five-year-old Baltimore man who died in police custody on April 19, 2015. 154 Mondawmin was a starting site of the ensuing “riots.” 155 Shawna was nearby when the riots broke out, trying to head to a friend’s house for spaghetti.

Shawna’s views on the riots vacillate from empathy for the good police officers who have been unfairly demonized, to frustration at the destruction of already limited West Baltimore institutions, to condemnation of unjust police practices, to pragmatic belief in the necessity of the police. “I felt bad for the police though, when they were rioting. They were throwing bricks at the police cars and all this other stuff . . . . First of all, you’re going to need them. Second of all, every police officer is not bad.” Belying usual portrayals of people like Shawna in the media and in most research, Shawna readily acknowledges the humanity of officers and the heterogeneity of police forces. “[H]e’s got kids too. He’s got to live too. He’s got to eat too, and if he wanted to be a police officer, that doesn’t mean every police officer is bad.” Still, “some of them have to go.”

Despite the negative representation of Baltimore youth in the national media during the riots and what she sees as the inherent wrong of riotous behavior, Shawna has ambivalently started to believe that the riots were a necessary catalyst for the police officers to face criminal charges. 156 “It might not be right to riot, but if they wouldn’t have done that, they would never have pressed charges on [the police officers] . . . . It might have been terrible for our community and made us look a mess, especially to the nation, to everybody who saw it.” Shawna is upset that some leaders used the controversial term “thugs” when referring to Baltimore rioters. Despite not participating in the riot herself, Shawna felt that the label was directed at young African American West Baltimoreans in general. “It really hurt my feelings that they called us thugs. I saw a video on that too.”

“They” included President Obama, who described the rioters as “criminals and thugs who tore up the place”; 157 Maryland governor Larry Hogan, who depicted them as “gangs of thugs whose only intent was to bring violence and destruction to the city”; 158 Baltimore City Council President Bernard C. “Jack” Young, who distinguished between legitimate Sandtown-Winchester residents and “thugs seizing upon an opportunity”; 159 and Baltimore Mayor Stephanie Rawlings-Blake, who lamented that young rioters were disrespecting the legacy of people who had fought for the city in the past. “Too many people have spent generations building up this city for it to be destroyed by thugs who, in a very senseless way, are trying to tear down what so many have fought for,” Rawlings-Blake said. 160 After extensive criticism, Rawlings-Blake and Young backed away from using the term “thug.” 161 The White House stood behind the President’s choice of words. 162

Talking with us only a few weeks after the murder of nine people in Charleston, South Carolina’s Emanuel African Methodist Episcopal Church, 163 Shawna compared Charleston officers’ humane treatment of shooter Dylann Roof with Baltimore officers’ aggression toward Freddie Gray. She shook her head with disgust. “They bought him Burger King. They bought him Burger King, but they couldn’t even get Freddie Gray to a hospital.” 164 I asked Shawna how she knew about all of these things—the details of Freddie Gray’s arrest, the series of “thug” speeches, and the Burger King trip for Dylann Roof. “It was on Facebook. A lot of things are on Facebook,” Shawna pointed out.

Later, I asked her, “Do you want to be a police officer anymore?” “Whoa,” Shawna chuckled, “I gave that dream up.” Now entering her final year of high school, Shawna desultorily explained that her goals for the next several years are to “just better myself in the years to come. That’s what I want to do. I just want to be better.”

The legitimacy perspective would offer an incomplete diagnosis of the unsettled relationship between the police and someone like Shawna—a thoughtful young woman who has never had any serious police encounter, who has managed to avoid getting a criminal record, and who is a general law-abider, wanting to trust the police but convinced that the police are not trustworthy for people like her. Shawna is generally compliant with the law and believes police officers should be respected. She thinks that it is good to help police officers, and she appreciates that her mother would stealthily report crime. From a law enforcement perspective, people like Shawna are allies and assets to the community. Shawna behaves like someone who views the police as a legitimate legal authority.

Yet Shawna’s views also reflect a deep sense of alienation about police. She stopped going to the mall to avoid interacting with the officers there. She abandoned her childhood dream of becoming a police officer, even though she possesses the presence, personality, and background to be an excellent law enforcement official. She fears that police might kill or sexually assault someone like her: a young, low-income black woman who lives in West Baltimore. Although Shawna sees the law and its enforcers as worthy of obedience as a theoretical matter, she does not believe that law enforcement officials see her, and people like her, as a true part of the polity. She is nothing more than a “thug.” This understanding of her group’s place in the world does not lead to law-breaking or noncooperation, as a legitimacy perspective might predict. 165 Yet her words nonetheless reveal a cleavage, or estrangement, from the enforcers of the law. Her story reveals that the empirical outcome that legitimacy theory is best used to explain is the wrong outcome: Shawna’s problem is not noncompliance, but symbolic community exclusion.

iv. a tripartite theory of legal estrangement

To this point, this Essay has argued that scholars and policymakers should understand persistent police distrust among African Americans and residents of high-poverty communities as a problem of legal estrangement, a cultural orientation about the law that emanates from collective symbolic and structural exclusion—that is, both subjective and objective factors. In this Part, I further define legal estrangement theory. I argue that legal estrangement is a product of three socio-legal processes: procedural injustice, vicarious marginalization, and structural exclusion. All of these processes are supported in the empirical literature, although their primary justifications emerge from theory. Below, I explain each process in greater detail, drawing upon the literature and offering real-world illustrations from qualitative data.

A. Procedural Injustice

Building from the legitimacy and procedural justice scholarship described in Part II, I argue that experiences in which individuals feel treated unfairly by the police are one key provocateur of legal estrangement. The procedural injustice component operates at the individual and attitudinal level but, writ large, expands to the cultural level. 166 urvey research indicates that a feeling that the police have behaved disrespectfully feeds into an overall disbelief in the legitimacy of the law and law enforcement. 167 The path to legitimacy, from a procedural justice perspective, requires “treatment with dignity and respect, acknowledgment of one’s rights and concerns, and a general awareness of the importance of recognizing people’s personal status and identity and treating those with respect, even while raising questions about particular conduct.” 168

Consider the example of Justin, 169 an eighteen-year-old African American man living in Northeast Baltimore who is heading to a small religious college out of state on an athletic scholarship. (He had wanted to aim for an Ivy League school because his high school grades were strong, but according to him, his SAT score was nearly 100 points shy of the baseline.) Justin’s police encounters typify and bleed into a general feeling that he is socially and politically powerless. The criminal justice system “just get[s] so irritating, just to know you can’t do nothing about it,” he groused. “You have a voice, but then it’s your voice and billions of other voices. If everybody’s not together and its one side against the other, your voice basically doesn’t matter. It just gets so frustrating how disrespectful somebody with high power can be. It just gets annoying.”

To illustrate his point about disrespect from people in power, Justin told us about his most recent police encounter. 170 He and his friends were in Hunt Valley, a small suburb just north of Baltimore city limits, known for its expansive, recently reinvigorated outdoor shopping mall. At around 11:30 PM, as they walked toward the light rail station that would carry them home to West Baltimore, they were stopped by a police officer. They were walking in the street along one side; they felt more comfortable walking in the road than on the sidewalk because there were woods on either side of the street. “It’s night time. I don’t want to be over there. For one, you got to think, there’s mosquitoes, ticks, and stuff like that. People could be hiding over there.” 171 According to Justin, the officer pulled them over, questioned them about what they were doing, and ran all of their information. The officer ultimately only gave them warnings for walking in the street. Justin repeated the charge, still with a hint of disbelief. “For walking in the street. For walking in the street!” 172

What irked Justin more than the warning, though, was the police officer’s apparent disregard for their travel timetable. While they were stopped, Justin and his friends told the officer that they were on their way to the light rail station and that they needed to get there quickly because the rail stops running at midnight. They were not sure when the last train to Baltimore would depart, so they were trying to get there as soon as possible. The officer assured them that they would make their train. Yet by the time he checked their information and issued their warning tickets, it was approximately 12:05 AM. Justin’s bitterness about missing the train had not yet faded. “When I say they didn’t let us go until about 12:05! They didn’t let us go until 12:05 and only gave us warnings—for walking in the street.”

Justin now expects that the police will not value his time. He has resigned himself to this signal of his own inconsequentiality.

Whatever it is, whatever you need, go ahead, because now I know we on your time, now. Once you stop me, even if I did nothing wrong, we on your time. So I might as well just get it over with, let you do what you’re going to do. I know you’re going to be disrespectful. I’m prepared for that. I know you’re going to be disrespectful. It’s up to me how I’m going to react to that.

When asked if he had other experiences like that one, Justin could not answer precisely. He knows that he has been stopped many times, but he tries not to dwell on those encounters, preferring to focus on school, work, sports, and “females.” He also tries to minimize the importance of race in this unnamed number of police encounters.“I just hate the way how they can be so disrespectful to us like we’re not human or nothing. It’s like this stereotype where you think a young African American—or not even a young African American, just a young individual, period, just walking, you think they’re up to something.” He tries instead to look at his police encounters from a power and authority perspective, in part just to avoid the stress of seeing the world as racist. 173 “People who have never had power before, they finally get power, and they want to abuse it. I try my best not to look at it as a racial thing because I know that’s only going to make me mad and stress me out. So, I try to look at it from all angles.”

Justin is an ambitious young man, one of the few in the sample who had the good fortune of having solid college plans. He has carefully curated his group of friends to include only those who “keep each other focused,” mostly fellow college-bound athletes. If Justin had been answering a survey about legal compliance, there is a reasonable chance that he would have marked that he adheres to most laws and believes that it is important to do so. Yet he deeply distrusts the police, partly because he believes that they treat him and other young Baltimoreans with disrespect in order to assert their authority. 174 In addition, he has serious doubts about whether the police would be helpful if he needed them, saying that no matter what the issue was, he would not call the police: “I call the police—I’m not doing nothing for nobody. If I call the police, there’s a possibility they might turn on me.” Those feelings of being both under surveillance and unprotected have created a devil’s brew of legal estrangement such that even a youth like Justin, who has thus far been able to avoid the criminalization process common for young men of color, 175 would rather pursue extra-legal help with neighborhood concerns than trust in the police.

As for the midnight police encounter: on the facts as Justin presented them, there is little doubt that the stop was lawful. The officer saw Justin and his friends walking in the middle of the street in violation of Maryland state law. 176 He stopped them, asked them what they were doing, ran their identification (apparently finding no open warrants), and sent them on their way with only a warning. Justin had two problems with the stop: he feels that the very reason they were stopped was generalized suspicion of young people (and possibly young black people), and that the officer did not care that this stop caused them to miss their ride home.This stop was less awful than it could have been, but it factors heavily into Justin’s concerns about the police and the larger social structure.

Justin’s story illustrates how procedural injustice, even at a relatively minor level, creates and reinforces legal estrangement. The legitimacy literature, though concerned with procedural injustice, does not offer an account that illuminates Justin’s concerns about the police: he willingly complied with the officer’s commands, not out of fear but from a sense that, generally speaking, he ought to obey the instructions of law enforcement officers. However, the experience nonetheless contributed to his sense that there is a schism between young Baltimoreans and the police. Yet procedural injustice is only one leg of legal estrangement’s three-legged stool. The benefits of a legal estrangement perspective emerge more clearly when considering the additional processes of vicarious marginalization and structural exclusion.

B. Vicarious Marginalization

The second contributor to legal estrangement discussed here is vicarious marginalization: the marginalizing effect of police maltreatment that is targeted toward others. Although the literature on legal socialization, legitimacy, and legal cynicism vaguely acknowledges the influence of police experiences within people’s social networks and the impact of highly publicized misconduct on cultural orientations about the law, the scholarly treatment of vicarious experience is thin relative to the treatment of personal experience. 177 This deficit is, in part, a disciplinary artifact. Most legal socialization and legal legitimacy research draws from social psychology, which by definition focuses primarily on understanding individuals’ internal lives and how they relate to their personal interactions and behaviors. 178 The legitimacy literature has been interested in generalized views and “societal orientations,” but it focuses mostly on whether one can generalize from personal experiences instead of whether and how impersonal, vicarious experiences also contribute to social orientations. 179 Sociological and socio-legal theory, in contrast, provides a theoretical grounding for the idea that other people’s negative experiences with the police, whether those people are part of one’s personal network or not, feed into a more general, cultural sense of alienation from the police. 180 Legal estrangement is born of the cumulative, collective experience of procedural and substantive injustice.

In the study of incarceration, scholars have developed a clearer view of the cultural contagiousness of criminal justice contact. For example, Naomi Sugie finds that the female romantic partners of formerly incarcerated men are less likely to vote, to register to vote, and to believe that voting is important than similarly situated women who are not partnered with a formerly incarcerated man. 181 While voting and registering are behaviors, the belief that voting is important is an attitude that might, in the aggregate, reach the level of a cultural orientation. Along similar lines, Megan Comfort argues that the romantic partners of men serving time in prison undergo a process of “secondary prisonization,” adopting routinized behaviors, styles of self-presentation, ways of speaking, and even sexual desires that are shaped by their vicarious incarceration. 182 Researchers are exploring the effects of incarceration on the worldviews of the children of incarcerated parents. 183 Moreover, the vicarious effects of incarceration are not limited to the intimate partners and children of the incarcerated. For example, in their study of the relationship between race, mass incarceration, and distrust in the law, Christopher Muller and Daniel Schrage find that African Americans who had a formerly incarcerated close friend or family member were more likely than other African Americans to blame bias among the police and courts for the criminal justice system’s racial disparities. 184

Yet at the front end of the criminal justice continuum, scholars rarely probe these cultural emergences. 185 More work needs to be done to examine the collective memory of police interaction, defined as the cultural conception of what it is like to interact with the police that emanates in part from membership in a group or identity category (here, in various degrees, being African American or residing in a racially and socioeconomically isolated neighborhood). Collective memories are based on some combination of personal experience, observing and hearing about the experiences of others, passing accumulated wisdom from parent to child, observing interactions in public space, seeing (or not seeing) murals and other forms of public commemoration, watching television, scrolling through social media, and sharing all of these personal and vicarious experiences in the community. 186 In other areas of legal inquiry, such as constitutional interpretation, state-sponsored mass violence, interracial marriage, and general racial inequality, scholars have probed the role that collective memory plays in the law and legal institutions. 187 Through a combination of major social upheavals and everyday forms of information gathering, people come to understand themselves and gain perspective on what it means to be a part of a group (be it a religion, a race, or even a business). 188

Most studies of collective memory focus on clear, often tragic historical events that had a cognizable beginning and end, such as American slavery or the Holocaust. 189 However, some research and theory argue that there can be broader sorts of collective memory, such as a “collective memory of racism and discrimination,” that ground people’s interpretations of day-to-day interracial experiences. 190 In this sense, police maltreatment and discrimination can also become sites for collective memory and collective identity construction. Vicarious marginalization in the context of policing, then, is ultimately about how people draw upon information other than their own experiences as police targets or suspects to understand their group’s common experience with law enforcement.

There is no better illustration of how vicarious marginalization might operate, and what its repercussions might be, than current events involving police officer maltreatment of African Americans. As explained above, distrustful relationships between police officers and African American communities are longstanding and deep-seated. However, the recent stream of videos of violent police interactions has, along with organizing techniques, given birth to the Black Lives Matter movement. This movement has elevated police violence to the national collective consciousness, sparking community organizing and policy advocacy. 191 Some have claimed that the seemingly ceaseless stream of grisly scenes on television and social media are giving birth to a new form of race-based posttraumatic stress. 192 But short of (or in addition to) race-based trauma, the ritualistic observation of black men and women having unjust, and often deadly, interactions with law enforcement conveys a message to their coethnics and other similarly situated observers. 193 That message might be that the police as a whole are dangerous, untrustworthy, and opposed to the idea that African Americans and the poor are truly members of the polity. Group conversations, both in person and through social media, can crystallize that message. 194

Legal estrangement, emerging out of personal and vicarious experiences, serves as a lens through which many African Americans interpret past and future engagements with law enforcement officials. Videos of negative police interactions may elevate personal experiences to a cultural level by demonstrating to people who have had negative police interactions that their experiences are not unique. Media coverage that emphasizes particular aspects of police interactions, such as race, gender, or perceived criminality, provide a schema for interpreting one’s own experiences in ways that positive experiences may not fully overcome by contributing to conceptions of how police treat particular groups. 195 Media coverage may heighten legal estrangement by providing evidence that we are living in a moment of cultural and legal instability regarding race and the police, and it may increase culture’s power to drive perhaps undesirable behavior such as avoiding the police, refusing to call on them for help, or engaging in law-breaking activity. 196

Yet the mechanisms that give birth to vicarious marginalization are not limited to television and social media. Some youth in the Baltimore sample reported observing the police mistreating others, whether strangers, parents, and friends, and they factored those observations into their assessments of police untrustworthiness. Others talked about the experiences of parents, siblings, and friends that they did not personally witness, but that were nonetheless salient in developing their orientations toward police.

Eighteen-year-old Jamila 197 lives in the McCulloh Homes family public housing development 198 with her mother, her mother’s boyfriend, and her eight siblings. The space is crowded, and the neighborhood is dotted with liquor stores, payday lenders, and street memorials, institutional and symbolic indicators of concentrated poverty and heavy crime. 199 But Jamila is grateful to be there, more or less. Having spent significant periods of her childhood bouncing through a series of homes and homeless shelters as her mother cycled through abusive relationships, Jamila’s four years in the McCulloh Homes have been, in a way, a welcome reprieve.

The first time Jamila remembers interacting with the police, she was ten and her mother got into a physical fight with her boyfriend. The officers, who were both people “of noncolor” (a term Jamila prefers to “white”), spoke to Jamila and her sister using words they could understand. They walked the two young girls to the store for snacks, hoping to momentarily distract them from the violence at home and shield them from the sight of their mother’s contused face. She said it “was a good experience,” but she does not believe police officers today, about eight years later, could reproduce that positive interaction. “People in enforcement now, there [are] a lot of younger officers in the force today, than it was then. People really cared about their job then. Now, people just look at it for the money that they are going to make.” 200

When Jamila graduated from high school in 2015, she became the first person in generations of her family to do so. This triumph has inspired her younger brothers. “That’s very big for them—very, very big. And they look up to me now,” Jamila explained to us. One of them, like a younger Shawna, aspires to enroll in the police academy and join the ranks of police officers. Jamila appreciates this goal, as she thinks police have an important social role to play. “Police men and women, at the end of the day, we kind of need them to keep [the] city safe . . . . But it’s how you do it, is what really matters. Because you can’t just walk into a neighborhood and get scared.” Jamila herself has recently completed the first stage of an intensive and competitive college-readiness program and is preparing to start community college, intending to transfer into a local bachelor’s degree-granting college in two years. Her long-term goals include studying philosophy and becoming a lawyer. She believes that practicing law would be the best way to help people: “I love law too, because I like giving people second chances. Everyone’s not a bad person.”

Despite her positive early experience with police, her model citizenship, her brother’s goal of becoming a police officer, her own goal of joining the bar, and her embrace of the broad role that police can serve, Jamila is profoundly skeptical that the police—and government officials more generally—value people from her community. “We need real, real people that care about people . . . Any kind of state official, anything that has to do with dealing with people, we need better people.” Jamila’s assessment of police seems to stem from a mixture of community wisdom and the experiences of her friends and neighbors.

A few months ago, Jamila and her friend Rock were waiting outside of a middle school to walk Rock’s brother, a student at the school, home. Jamila and Rock were about fifteen minutes early. They were hanging out outside to pass the time, and a police officer came by and asked them to leave. Jamila immediately started to walk away, as she did not have any reason to be there. Rock, however, started running away. According to Jamila, running away from police is a standard practice for young men even when they are clean (i.e., not carrying anything illegal). 201 When the officer caught up with Rock, he pushed Rock to the ground, pulled out his baton, and started beating him with it. The officer may have searched Rock, but if so, Jamila did not mention it. The officer did not lock Rock up then, but he seems to have cited him for loitering or some other minor offense. As Rock lay on the ground, Jamila called his mother.

“The officer just beat him, walked off, and left him there in the parking lot,” Jamila bitterly recounted. Jamila fears that if she had not been there, Rock might have died.

Then what? Would it still have mattered then? Or does it not matter at all? And I feel like, they’re given too much power. Because they feel like, okay they’re officers. “I have a gun. I have a badge. You have to listen to me. You have to do this. You have to do that.” When really, you’re the same as . . . you’re the same person as me, whether you know right away. You’re the same person. We breathe: just like I breathe, you breathe. You bleed just like I bleed. We’re the same people.

Jamila’s anger is not born primarily of her own experiences; most of her personal experiences have been positive or neutral. Instead, she tells stories of the mistreatment of her friends and of African Americans more generally. 202 “We don’t have a good relationship, black people with police, because of what they’re known to [be] doing.” She does not specify who knows what police are doing. There is no active person or group passing these stories along. They are just “known.”

Jamila also distrusts the media, including both network news and social media. She believes that both of these sources are advancing a destructive racial trope about the nature of police-community relations in Baltimore. “[M]edia is the cause of all of this,” Jamila pontificated, at rapid speed. “[T]hey kept putting emphasis on white, white, white, white cop, white guy, white cop, white cop, white guy—they were putting emphasis on it.” Jamila thinks that the narrative about Freddie Gray promoted through broadcast and social media is responsible for the April 2015 unrest: “If the media didn’t broadcast it as big as they did,” she argued, “it wouldn’t have happened like this. Because people started reacting when they came on to the news, and it came across on that social media—on that timeline of Facebook and stuff like that.”

Sticking to her preference for class-based rather than race-based arguments, Jamila contends that the broadcast media promotes a racial narrative to make money.

I used to think that they just want people to [be] aware of what was going on. But then, how they started wording things: “Another white cop kills blacks, another unarmed black teen.” . . . I feel they got the outcome they wanted. I feel like, they wanted people to react and get mad. Because as views go up, they get paid more money.

Jamila rejects this narrative, arguing that instead of race, “it’s bigger than that. This is a nation[al] problem; it’s worldwide.” Although Jamila’s specific critique of the media’s racial analysis was at times hard to follow, her general argument was that the government is interested in maintaining brute authority in any way that it can. Thus, the media narrative surrounding Baltimore’s policing troubles distracts people with a partial explanation—race—instead of forcing them to confront the fuller explanation: maintenance of social and economic hegemony at all levels.

Of course, not all Baltimore youth shared Jamila’s particular take on the role of race or her skepticism of all media. Myron, 203 for example, was thrilled at the broadcast media’s coverage of the Freddie Gray incident. Using “news” like a verb, he related, “I’m glad they finally newsed our shit.” Myron is pleased that these incidents, which have been going on for years in his estimation, were deemed newsworthy. The broadcast media attention spurred a shift in the social media experience as well: “Finally, Facebook and Instagram went to something other than us killing each other or fighting each other. They finally went to something like helping us, broadcasting what they’re doing to us.” Johnson 204 had yet another take, disparaging broadcast media coverage in similar tones to Jamila, but viewing the use of video and social media as a way to offer an alternative narrative. “[I]f the media was here now, they [would] be saying some crazy things about a situation instead of the truth about it,” he contended. “That’s another reason why people need to actually [be] active into social media a little bit more . . . . [I]n order to find the truth, you need to have your phone out, tweet things, take videos about things.” While opinions of these media sources vary, young people commonly consume them and deploy them as filters to understand the experience of being policed in Baltimore.

A few days before our interview, Jamila saw an officer in her courtyard, surrounded by a crowd of children, blasting the popular song “Watch Me (Whip/Nae Nae)” 205 and dancing. Some of the children took out their phones to record. (Indeed, there have been several similar officer-dance videos from jurisdictions across the country over the past two years, often using the Whip/Nae Nae song.) 206 When the officer left, the children told him goodbye, a nicety between community kids and the police that Jamila had never seen before. Jamila appreciated the gesture. “When I seen that, I was like, ‘Yeah.’ I kind of, like, gave the officer a nod. Because that’s a good thing . . . . You usually don’t see that.” At the same time, she does not expect the encounter to make much of a change in the way she sees police, or in the way other adults from her community perceive police. “Once a man’s mind’s already made up, there’s no telling him different.”

Pathways of vicarious marginalization, such as stories from family members, witnessing friends’ interactions, and watching videos and media coverage of strangers’ experiences of police-related violence and injustice, are poorly considered in current theory and policy. The legitimacy approach tends to deemphasize the importance of interlocking social contexts, including peer influences. 207 The existence of these pathways is not surprising, though, when one considers what social scientists have long understood about the stickiness of negative events in the human memory, 208 the socialization function of family and friend networks, 209 the ways culture is created and transmitted, 210 and the social construction of knowledge. 211 Personal experience with the police is only one stick in the bundle of information that people use to form their perspectives on law enforcement. How they understand the policing experiences of others varies based in part on their relationship with the person who had the interaction and—especially when the vicarious experience comes through a viral police video—varies based on how well the experience at issue matches up with metanarratives about the police. Shared narratives about how the police treat African Americans and people who live in poor communities propel legal estrangement. To reduce legal estrangement, counternarratives that focus on respect and value for black and poor lives must emerge and take root.

C. Structural Exclusion

The third part of the theory of legal estrangement is structural exclusion. This component describes the ways in which policies that may appear facially race- and class-neutral distribute policing resources so that African Americans and residents of disadvantaged neighborhoods tend to receive lower-quality policing than whites and residents of other neighborhoods. 212 Laws and policies produce and normalize vastly different experiences by race and class. 213 The apparent neutrality of most modern laws and policies means that even those who are disadvantaged under them might not fully perceive them as discriminatory. 214 These policies serve as a form of legal closure , a means of hoarding legal resources for the socially and socioeconomically advantaged while locking marginalized groups out of the benefits of law enforcement. This idea draws from the theory of social closure. 215 The process of legal closure leaves some areas essentially lawless—harshly policed yet underprotected 216 —while others may be rigorously defended over and above the degree to which they are at risk.

The concept of legal closure acknowledges that there are both losers and winners in the current policing regime. Current scholarship and policymaking focuses on how to address problems with the losers without examining the current system’s beneficiaries. Part of the reason that the harshest and least effective police officers can be found in high-poverty communities is because department policies on pay and seniority, as well as state laws on officer wages and additional employment, send the most experienced and highest-paid police officers to the wealthiest areas. Residents of wealthier urban and suburban neighborhoods benefit from the current policing regime; this insight reframes the problem that police reform attempts to address as not only a problem of racism or poverty, but a problem of inequality in access to the machinery of the law. 217 The structural exclusion prong of legal estrangement theory also emphasizes that police violence is not primarily a problem of wayward officers or misunderstood suspects, but instead a problem embedded in the legal system itself.

One indicator that poor African Americans in particular have been excluded from police resources is that police repeatedly fail to respond, or to respond in a timely fashion, when they are called. 218 Structural exclusion often occurs in ways that community members do not recognize, but police nonresponse is an inequality that community members often notice, and it is usually evidence of local, state, and federal policy decisions. In response to police abandonment, marginalized people seeking protection or redress of grievances have generally turned to “self-help,” either by calling upon family members or friends (and thus increasing violence in the aggregate), 219 or by creating or enlisting the help of informal institutions.

For example, Sudhir Alladi Venkatesh’s historical and ethnographic account of life in Chicago’s now-defunct Robert Taylor Homes describes a series of alternative community law enforcement groups (“indigenous law enforcement”) that residents used to police themselves after the police abandoned the development as early as the 1960s. 220 In the early 1980s, however, as the drug trade grew and gangs evolved from largely familial enterprises to more impersonal, almost corporate entities, 221 those gangs ultimately took over the pseudo-law enforcement role from the community law enforcement groups. 222 At no point did police step in to reclaim meaningful authority within the neighborhood. 223 The incentive structure for police officers was to avoid neighborhoods like the Robert Taylor Homes, particularly in the era before federal policy incentivized police departments to prevent crime in high-crime neighborhoods. 224

Of course, policing has changed since the early days of the Robert Taylor Homes. Much of the early critique of police officers’ treatment of racially and socioeconomically marginalized neighborhoods (or what many scholars call “the ghetto”) stemmed from law enforcement’s neglect of those communities, 225 leading to some mid-twentieth century racial justice advocates to urge police to become more active in poor urban neighborhoods. 226 Yet several forces converged in the 1970s, 1980s, and 1990s that shifted the problem from one of utter neglect to the current problem of overpolicing and underprotection. First, policing underwent a move toward professionalization, which brought about improvements such as the use of technology, reliance on evidence (rather than confessions given during investigations), and requirements that police undergo more extensive education and standardized training. 227 However, as part of the professionalization package, and because of shifts in technology and the sprawl of cities, departments shifted their tactics from having officers walk a “beat” (an area that they specifically focused on) to using cars and technology to respond to calls for service. 228 Second, partly in reaction to the massive increase in urban crime during the 1970s, “broken-windows policing” (also known as order-maintenance or quality-of-life policing) took root in the 1980s and 1990s. This type of policing moved in the opposite direction of the call-for-service model by urging officers to heavily and proactively enforce laws against minor criminal activity, particularly in distressed communities. The shift meant that people in racially and socioeconomically isolated communities first felt abandoned, then felt heavily monitored—but primarily monitored only for minor crimes that were not at the heart of their public safety and security concerns.

The War on Drugs altered policing as well. Although much of the critique of the War on Drugs has focused on its hotly debated role in the rise of mass incarceration,, 229 the War on Drugs altered the front end of the criminal justice system—policing—just as significantly. Beginning in the 1970s and increasingly throughout the 1980s and 1990s, the War on Drugs funded special narcotics-enforcement police units and gang units across the country, arming regular police departments with military-grade armor and weaponry, and authorizing virtually free reign over marginalized neighborhoods. 230 Because police often relied on bad information when making busts and conducting raids, whole communities felt under police suspicion, regardless of whether particular individuals had done anything to earn that suspicion. 231

The twin perils of harsh policing and neglectful policing indicate structural exclusion from public safety, an exclusion that corresponds with intersecting race, class, and geographic marginalization. Some scholarship on overpolicing and underprotection portrays the phenomenon as a gendered and generational issue, meaning that young people, especially young men, feel overpoliced while older, “decent” people in poor African American communities feel underprotected. 232 The reality is far more complex. Many young men, too, would ideally want the police to protect them and their communities. Patrick Carr, Laura Napolitano, and Jessica Keating reached this finding in their qualitative criminology study of an ethnically diverse (Latinx, white, and African American) sample of young men and women, ages twelve to twenty-three, in three high-crime, socioeconomically challenged Philadelphia neighborhoods. Although most of the youths, regardless of race or gender, had a negative disposition toward the police, most of them—including young African American men—also suggested greater presence of police and harsher enforcement of the law as ways to address crime in their communities. 233 One way to understand this result is as a kind of bounded creativity: because these youths were growing up in high-crime urban neighborhoods in the 1990s and 2000s, a time and place where the police were highly visible and when alternative community social control resources were relatively limited, perhaps they could not imagine a world where the government could use noncriminal justice means to deter crime. This view would counsel hesitancy before relying on youths’ words as true statements of their ideals. 234 Yet the authors settle on the explanation that, despite the youths’ negative experiences with the police, they cling to the mainstream cultural ideal that police should protect them and their communities. Along with protection, the youths desire procedurally just policing. 235 The critical point about structural exclusion is that, despite the youths’ cynicism about the police, they nonetheless believe that the police are failing to provide protective services to their communities.

This conflicted desire for police protection is observable in Lemuel’s story. Lemuel is a twenty-four-year-old African American young man who grew up in the Lexington Terrace housing project in West Baltimore. 236 Lemuel, unlike Shawna, Justin, and Jamila, has spent a large portion of his youth engaged in criminal activity. 237 Unlike his brothers, one of whom is incarcerated and one of whom was murdered seven years ago, Lemuel managed to avoid becoming an official member of any street gang or “clique.” (In his terms, he was a “thug,” not a “gangster.”) Mostly, he stole food, sports jerseys, cars, and other property with his brother and dealt small amounts of marijuana to earn a baseline income.

When I was robbing people, there was a reason why I was doing it. My stomach was literally growling, nothing to do. Either I die, starve, or I do something. I was too young for a job. I mean, I cut grass during the summer. I shoveled snow through the winter. But [what] do you do in between?

Lemuel’s family was so poor that his parents made deliberate choices to forego necessities for their male children. Lemuel mimicked his stepfather with an acerbic chuckle: “My father, he always said, ‘They boys. They don’t need no shoes. They don’t need no underwear. They don’t need socks.’” The first time he remembers feeling scared and realizing that his family was very poor, was when “the eviction people came, and we’re holding the door so they won’t come in.” Petty theft was Lemuel’s family’s livelihood. “What we going to do? Whatever you can do. So we made sure we ate.”

Not surprisingly, Lemuel had numerous run-ins with the police in his younger, delinquent years. He likened the police he encountered, the “knockers,” (plainclothes officers assigned to “flex squads” focused on drugs and violent crime) 238 to Denzel Washington’s character in the 2001 movie Training Day . 239 According to Lemuel, these officers—all African American 240 —often wore ski masks. “He don’t want you to know who he is because he’s about to do something that he ain’t supposed to do.” Lemuel says that the “knockers” would give him an ultimatum during every run-in. They could either take him to jail, or they could allow him to go home. When a boy took the “go home” option, “they sit you in the back seat with a knocker back there and they’ll beat your ribs, take all your money out your pocket, leave you in the ‘hood that you ain’t supposed to be in.”

One of Lemuel’s most formative experiences with a police officer took place at a high school located in the heart of gang territory. One day when he was about fifteen years old, Lemuel showed up to school drunk on Bacardi Gold rum. “At the time, I was doing a lot of drinking . . . . I was going through stuff,” he explained. He was also carrying drugs for his personal use and a “knuckle knife”—a set of brass knuckles with a knife attached—for protection. As is common at Baltimore’s public high schools, security was on high alert. 241 In addition to the usual metal detectors, officers were on hand to frisk the students. A female officer patted Lemuel down and found the drugs in his pocket. According to Lemuel, the officer grabbed his scrotum and squeezed. She allegedly told him, “You better not say nothing.” As he remembers it, she told him that, if he screamed, she would remove the drugs from his pocket (perhaps simply taking them, or turning them in so that he would get into legal trouble). Though tears welled in Lemuel’s eyes, he stayed silent, and the officer let him go. But he returned home swollen and in pain. 242

Despite those horrific recollections (“procedural injustice” seems too clinical a word for bodily assault), there have been times when Lemuel has wanted to call the police for help. When Lemuel was younger, someone from his neighborhood robbed him and took his sports jersey, an item that was relatively expensive given his financial background and thus had great significance to him. He wished that he could call the police to report the crime and get the jersey back, but instead he reluctantly fought the older boy who took it. “Got my ass whipped. Got my jersey back, though.” There have been other times when he has wanted to call the police as well, times when an old-fashioned schoolyard brawl would not be of much help. People have shot near him, and “things . . . was a little bit out of my control.” Yet he still did not call the police because “it’s never good.” Lemuel’s uncle is a police officer, but instead of making him feel closer to the police, he thinks the job reflects poorly on his uncle’s character. Lemuel told us, chuckling, “Even my uncle, my uncle’s an asshole. He don’t come to no family reunions or nothing.”

Lemuel does not think the problems of policing that he has experienced, and that gave rise to the Freddie Gray unrest, are attributable to race. In his view, the problems of police-community relations are problems of neighborhood income inequality. “Black, white, Hispanic, it doesn’t matter your race. It matters where you live. It’s almost—your income.” Because Lemuel has committed crimes in higher-income neighborhoods, he has seen firsthand that police respond quickly in those areas. He and a friend attempted to burglarize a home in a wealthier part of Baltimore County, and they assumed that because the house was in a semirural area, it would take the police a long time to arrive. They were wrong. Someone called the police, and officers arrived very quickly. “When you’re in another neighborhood, you get treated with more respect. I realized that when I went to try to do my first home invasion. The cop response was so quick . . . . It was so quick. I never seen the cops respond to this neighborhood so quickly.” Lemuel believes that slow police response is inevitably part of the experience of living in “the projects,” including trailer parks.

One distinction between the police in West Baltimore and the police where Lemuel attempted the burglary is jurisdictional. West Baltimore, located within Baltimore’s city limits, is under the jurisdiction of the Baltimore City Police Department. By contrast, outside the city limits in Baltimore County, the Baltimore County Police Department handles policing. Assuming Lemuel’s experience is representative, the alleged discrepancy in response times could come from the differences in policies and workloads between the city and the county police departments. The differences between these jurisdictions might relate to their relative emphases on responding to crime reactively versus implementing preventive or proactive approaches. It might be the case that in the county, the police department still places heavy emphasis on responding to calls for service, while in the city (particularly in high crime areas), there is greater emphasis on patrolling. These different approaches could explain city residents’ simultaneous sense that there is a heavy presence of police cars 243 and delayed response to calls for service. 244 More research is needed to compare police response times across and between jurisdictions, and to locate the department-level policies and practices that might explain any undue delay.

Lemuel’s earlier experiences of procedural injustice could also be attributable not only to individual bad officers, but to policies and department cultures that incentivize bad behavior. As noted above, Lemuel’s most vivid negative experiences were with the “knockers,” the plainclothes police officers who work in units that focus solely on violent crime and drug crime in distressed Baltimore neighborhoods. These units, which have been called “flex squads” in the past but are often renamed, are allowed broad discretion, including whether they wear uniforms, whether they drive marked cars, where they police (they are not limited to a post), and the hours they work. 245 They usually carry out drug raids as well. Although Baltimore’s flex squads came under fire in the mid-2000s due to deep corruption in the Southwest police district’s squad, including the rapes that Shawna fears, 246 the squads now exist with somewhat greater oversight. Yet some people—including former police officers—claim that street enforcement units are still given wide discretion that they often grievously misuse. 247

Arrest incentives, and the more general culture of arrest, 248 might also have contributed to experiences like Lemuel’s. Although he reports being arrested only once (and not through an encounter with a “knocker”), it is possible that police were more present in his neighborhood because they were looking for people to arrest. (Perhaps because Lemuel was so young, police were slower to arrest him.) While we do not have evidence of what those specific officers believed, insider accounts suggest that department policy encouraged greater police presence in predominantly poor and African American neighborhoods, even for officers who were not assigned to those areas. Former Baltimore police officer Michael Wood told reporters that, after getting a plum assignment to an upper-middle-class, predominantly white neighborhood, he would sometimes leave his post to go to a poor, predominantly black neighborhood to make arrests. He needed to meet his expected number of arrests, but even though there were people using drugs and committing other crimes in the neighborhood where he was assigned, he knew there would be “trouble” if he arrested the wrong person. So, even though it technically violated policy for Wood to patrol for arrests outside of his post, his supervisors signed off on his work. “They knew that judges and court officials lived in that neighborhood. If I locked up the judge’s 18-year-old son for drugs or whatever, things could get really bad for me,” Wood told reporters. 249 Several scholars have described the perils of arrest incentives, arguing that such policies have contributed to mass penal control through misdemeanor arrests and noncarceral forms of state supervision. 250 Lemuel’s story and the Baltimore context suggest that incentives to arrest might also simply bring more people into contact with aggressive policing. Even if those people are never arrested, and even if they do not become suspects of any particular crime, this contact might have negative effects on their perceptions of police, reminding them of their relative worthlessness in the eyes of the state. Consequently, arrest-incentivizing policies may serve to deepen legal estrangement.

On a broader scale, of course, structural exclusion through policing is layered atop deeper structural disadvantages that arise in the contexts of growing up poor and African American, and living in the city of Baltimore. Good policing is just one additional resource, or another form of capital, 251 from which the law writ large may exclude people like Shawna, Justin, Jamila, and Lemuel.

v. dismantling estrangement

How can police reform dismantle legal estrangement? There is little scholarship that tackles this question in even a cursory way. Research suggests that procedural justice can unsettle the psychological process that leads people to perceive the police as illegitimate. Evidence also indicates that the procedural justice solution can effectively increase perceptions of legitimacy across race and, to some extent, class. 252 Yet—other than the well-trodden but hazy path of “community policing” 253 —there has been little discussion of reforms that can disrupt the sociological process leading whole communities to see the police as a symbol of their status on the social periphery. Measures that emanate from legitimacy theory and the procedural justice approach, such as police training, are ultimately an impoverished response to estrangement. 254

One might reasonably view legal estrangement not as a problem of policing, but as a problem of concentrated poverty and racial inequality. Certainly, as is apparent in the vignettes offered in this Essay, concentrated poverty and systemic racial injustice are major structural problems that produce legal estrangement. Fully dismantling legal estrangement will be impossible without more fundamental shifts in economic distribution and eradication of racial discrimination: the problems of policing that have motivated Black Lives Matter are problems of America’s broken opportunity structure. 255 The root causes of estrangement, similar to the root causes of crime and mass incarceration, may seem inappropriate to address through the criminal justice system. 256

Admittedly, the structural factors believed to contribute most fundamentally to cynicism, such as concentrated poverty, segregation, and residential instability, 257 are not generally seen as the province of police practice and policy. Yet to demand that curing poverty and eliminating race discrimination are the only ways to meaningfully effect change in policing is to accept paralysis. The “root causes” mentality encourages scholars and policymakers to ignore ways that police practices and policy directly and actively contribute to legal estrangement and its concomitant racial and socioeconomic conditions. For instance, some scholars have argued that police practices directly contribute to persistent residential segregation. 258 Police contact can negatively influence the prison reentry process, making it difficult for returning citizens to maintain employment and familial relationships. 259 Multiple experiences with arrest of a parent can result in court dates for children that keep them out of school and siphon them into the criminal justice apparatus; this process interrupts their education and ultimately places them at risk for incarceration and its related perils. 260 Because there has been insufficient attention to legal estrangement in the regulation of policing, opportunities to link the structural factors in estrangement with concrete reforms to policing have been underexplored. The proposals here are not offered as a cure-all to legal estrangement, but are instead an opening salvo to encourage police reformers to dedicate energy toward new strategies and structures of police governance.

A. Using Federal Tools To Change Local Practices

Scholars often overlook many of the structural issues that confront policing outside the purview of federal law because the policing crisis is embedded in state and local laws and policies. Even though federal law and policy has brought some uniformity to local policing through spending initiatives since the 1930s, police administrative rules and practices still vary intensely among states, counties, and municipalities. 261 In addition, there is rich debate over the appropriate institutional actors that should regulate local police behavior. 262 Faced with disagreement over the depth of the solutions needed, issues of federalism, and potentially limited institutional capacities, one would be hard-pressed to find a legal silver bullet capable of resolving the legal and social problems of policing.

One tool that provides the federal government with leverage to force local departments to change or eliminate structurally exclusive policies is section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, also known as the Clinton Crime Bill. 263 Section 14141 authorizes the U.S. Attorney General to sue a local police department for engaging in a pattern or practice of violating constitutional and legal rights. The Department of Justice (DOJ) may use the threat of litigation to reach an agreement with the agency to pursue specific reforms, or take the agency to court and mandate actions through a consent decree. Although section 14141 has many merits—for example, the law is credited with providing a path to successful long-term reform for police departments in Cincinnati, Los Angeles, and Pittsburgh 264 —many scholars have offered an array of potential improvements to the law. 265

One of the biggest shortcomings of section 14141 is that its use is politically cyclical. 266 During the second term of President George W. Bush, the DOJ did not enter into a single consent decree with a police agency, opting instead to enter into nonbinding agreements with wayward departments. 267 In contrast, the Obama Administration has investigated dozens of departments. 268 Even this figure is relatively small considering that there are more than 12,000 police departments across the United States; many scholars believe that the costly and invasive nature of the process limits its capacity to reach the full set of departments that may require oversight. 269 One suspects that a Trump DOJ will investigate very few, if any, police departments.

Indeed, perhaps the major drawback of relying on § 14141 is that it likely allows so much unlawful and procedurally unjust policing to go undetected. Baltimore provides an excellent example of this issue. On August 10, 2016, the DOJ released a 163-page report lambasting the Baltimore Police Department for its persistent violations of the rights of Baltimore’s African American population, emphasizing in particular the Department’s mistreatment of youth 270 (such as the participants in the Hearing Their Voices study). 271 The DOJ concluded that the Department’s discriminatory practices violate Title VI of the Civil Rights Act of 1964 and the Safe Streets Act of 1968. 272 Yet just sixteen months earlier, in May 2015, the Final Report of the President’s Task Force on Twenty-First Century Policing described Baltimore’s efforts to build community legitimacy. The Report summarized testimony from then-Police Commissioner Anthony Batts touting the Department’s establishment of a new Professional Standards and Accountability Bureau “tasked with rooting out corruption, holding officers accountable, and implementing national best practices for polic[i]es and training.” 273 The DOJ Report, which denounces the Department for its failure to properly train officers, does not even mention this Bureau. In fact, the Report only briefly mentions the Baltimore Police Department’s other efforts to address its legacy of bias. 274 It took the death of Freddie Gray, and the corresponding public uproar, to push the DOJ to commence this investigation and issue the Report. While section 14141 provides a helpful backstop, it allows departments to maintain a veneer of community orientation until a crisis strikes. Major pushes for structural reform should not rely on litigation that is rarely initiated before tragedy occurs.

While recognizing the inherent insufficiency of incremental interventions as a full remedy for legal estrangement, in this Part, I provisionally discuss Fourth Amendment jurisprudence and four areas of police governance reform that could contribute to dismantling estrangement. These reforms have garnered much less attention in the most recent police reform debates than police training, community policing initiatives, or even structural reform litigation. Whereas most scholarship on police regulation tends to focus on constitutional criminal procedure, 275 these reforms are aimed at statutory and municipal law at the federal, state, and local levels. Unlike the legitimacy approach, legal estrangement theory directly suggests structural reform: the theory demands attention to group societal membership and the deep-seated laws, policies, and structures that have produced the policing crisis. Microlevel procedural justice reforms aimed at producing individual-level feelings of legitimacy are anemic responses to legal estrangement.

B. Paying the Police

The police wage system is a structural factor that functionally excludes many poor people and African Americans from policing resources, thereby contributing to legal estrangement. The wage structure under which police officers generally operate works inversely to the way it should: some of the busiest and most dangerous jobs in law enforcement often pay the least. Particularly in cities, towns, and counties that are financially strapped, finding the means to retain police-officer talent is a serious challenge. Moreover, officers are frequently aware of localized pay disparities. For example, a journalistic report on St. Louis County claimed that officers in some parts of the county were making “poverty wages,” as low as $10.50 per hour. 276 The DOJ Ferguson consent decree required that the city increase officer salaries as part of its recruitment plan. 277

Low officer wages introduce two major perversions to the system. First, when salaries are too low, the most skilled and experienced officers will (rationally) leave higher-crime areas to work in easier areas where they are paid more. Second, low wages mean that many officers feel pressure to pursue large amounts of overtime hours and off-duty work, also known as secondary employment or “moonlighting.” 278 Police officers typically receive a base hourly wage, but many earn a significant amount of their take-home pay through overtime. In Baltimore, for example, over one hundred officers in fiscal year 2013 earned more than $40,000 in overtime pay. In that year, the highest-paid employee of the Baltimore City Police Department earned $110,00 in overtime pay and $67,000 in base pay for a total of $177,000, more than the city’s mayor and more than the police commissioner. 279 In 2015, six of the ten highest-paid people in Baltimore city government were employees of the police department. 280 Only one of those employees, the police commissioner, had a top-ten base salary. The others received substantial amounts of money in what appears to be overtime pay. 281

The stress and burden of extended work hours can make even the most promising officers terrible at their job. 282 The President’s Task Force report devotes one of its six pillars to officer wellness and safety, with emphasis on mental health. 283 It stresses the riskiness and trauma of the job and blames officer judgment errors on fatigue. It even discusses shift length as a potential contributor to officer fatigue. 284 But the report does not directly draw a link between fatigue, exposure to risk and trauma, long shifts, and wage-related pressures and overwork, all factors that may affect economically depressed jurisdictions more than other jurisdictions. Wage disparity is a structural issue that occurs far upstream from the events that have catalyzed the police reform movement. Bringing greater transparency and equity to officer salaries will likely decrease procedural injustice and vicarious marginalization on the ground, which could, over time, reduce legal estrangement.

Even where officers are paid on the same scale within the same departments, they still may be earning less to police tougher neighborhoods. Collective bargaining means that departments are often bound to pay salary, assign shifts, assign beats, and give promotions or transfers on the basis of seniority. 285 And even where collective bargaining is not in place, decision making based on seniority is often embedded into police culture. Seniority rules mean that new patrol officers tend to get the least-desired assignments—graveyard shifts and tough neighborhoods—while receiving the lowest compensation. 286

Although problems of police wage inequality and job insecurity are tied partly to local governments’ financial insolvency, 287 federal intervention could help bring balance between urban and suburban wages. Since the establishment of the federal Office of Community Oriented Policing Services in 1994, federal funding has flowed to local departments to incentivize various reforms. 288 Federal funding, then, could partially close the gap between the wages that local taxes can fund and the wages needed to attract the most skilled officers to the highest-need areas. State legislation could help as well. In Indiana, for example, legislators have proposed requiring the state’s Office of Management and Budget to prepare an annual report comparing the salaries of state police with salaries in the three largest local police departments and to make recommendations about wage parity. 289 It is difficult to tell whether such legislation will be effective, but this bill represents one way that states could help reduce local wage disparity between officers.

Another practice that allocates policing resources to wealthier neighborhoods, to the detriment of poorer neighborhoods, is police departments’ practice of taking on secondary employment. 290 Under secondary employment arrangements, private entities such as sports teams or neighborhood associations can pay the police department extra money to provide additional police services. The DOJ has criticized such local government arrangements for “contribut[ing] to inequitable policing.” 291 For example, when the DOJ first investigated the New Orleans Police Department in 2011, some of its most significant criticism fell upon the Department’s Paid Detail program. 292 Paid Detail gave officers the opportunity to earn extra money by working overtime for private pay, and most of the places they worked were the areas lowest in crime:

The breadth and prevalence of the Detail system has essentially privatized officer overtime at NOPD, resulting in officers working Details in the areas of town with the least crime, while an insufficient number of officers are working in the areas of New Orleans with the greatest crime prevention needs. Those with means in New Orleans are essentially able to buy additional protection, while those without such means are unable to pay for the services and extra protection needed to make up for insufficient or ineffective policing . . . . While any community that wants extra security certainly has a right to pay for it, it raises troubling legal and ethical questions when that extra security might otherwise have been focused on parts of the City most in need of police assistance. 293

This language might have been a clarion call to municipal governments to prohibit—or at least to regulate more effectively—the use of sworn police officers as private security for overtime pay. However, perhaps because the investigation revealed such a massive number of issues, the Report’s critique of Paid Detail did not gain national traction. 294 In addition, the DOJ did not mention Paid Detail in its ultimate consent decree with the New Orleans Police Department. 295 Importantly, the Report’s critique of Paid Detail is not general: it does not state that officer “moonlighting” is per se corrupt. It limits its analysis to the particularities of New Orleans, and even suggests an acceptable alternative Paid Detail governance structure. Based on that suggestion, local governments might do well to heed DOJ’s call and centralize requests for private employment of off-duty officers so that they can better monitor the practice and use it to bring additional funds into their police departments. 296

Another option would be to bar sworn police officers from taking on this type of secondary employment altogether. Instead, local governments could expect private entities who want extra security to hire staff through private firms. Some Seattle neighborhoods have instituted this approach. 297 Yet there are reasons to hesitate to take this path: private police do not have the same powers, nor operate under the same constitutional constraints, that apply to sworn police officers. 298 Private security officers might be used only for neighborhood observation and suspect tracking, but they need to contact public police to conduct searches and arrests. In any event, finding a way to maintain a public/private distinction in policing would solve the ethical problem of allowing the training, equipment, and culture that the public provides to sworn police officers to directly reproduce neighborhood inequality.

Secondary employment is thus a mechanism through which poorer communities are structurally excluded from good policing. Officers may receive overtime pay for working as officers in wealthier areas, while they only earn paltry wages to keep distressed neighborhoods safe. This dynamic sends a stark message that protecting wealthier areas is more lucrative than protecting higher-poverty areas. Secondary employment policies like these might even suggest, at least symbolically, that African American and poor lives truly lack value.

C. Reorganizing the Police

There are more than twelve thousand police departments in the United States, nearly half of which employ fewer than ten police officers. 299 Even as philosophies of policing have shifted dramatically over the past century, governance structures of policing have largely remained intact. 300 Consolidation of very small police districts might be another way to ameliorate the structural exclusion from police resources that contributes to legal estrangement. Although consolidating districts would not constitute a total reorganization of departments, it might be a strong first step toward creating a structure more amenable to meaningful community engagement and checks on police power.

The proliferation of many small police departments means that some neighborhoods can essentially become individual fiefdoms for certain officers. The issue of unchecked power in extremely small rural or suburban police departments came to national attention for a very short time in late 2014, when a South Carolina prosecutor attempted twice to win the conviction of Richard Combs, the police chief and sole police officer in Eutawville, South Carolina—a town with a population of 315. Combs was charged with murder for shooting Bernard Bailey, a fifty-four-year-old unarmed African American man, in the parking lot of Eutawville’s town hall in May 2011. Bailey had intervened when Combs issued a traffic ticket to Bailey’s daughter, and the shooting allegedly occurred a few days later when Combs attempted to serve Bailey with a warrant for obstruction of justice. Some onlookers saw Combs as an example of an officer who, because he functioned as the sole traffic officer, regular patrol officer, and police chief, had unfettered power to use the machinery of criminal justice for vindictive purposes—a structure that seems almost destined to produce corrupt police action. 301 Yet after the briefest of moments, as Combs ultimately took a guilty plea for misconduct in office and as bigger-city shootings took over news cycles again, the issue of small police department governance returned to obscurity. 302

Small departments can also create various interjurisdictional inconsistencies ranging from the amount of training officers receive to the equipment available to keep themselves and civilians safe. For example, one of the arguments that Combs’s attorney made to explain his decision to shoot Bailey was that, because the town he policed is very small, they did not have less lethal equipment such as a “stun gun” (Taser) or pepper spray. This meant that the only means of force he had available was his gun. 303 Whether giving Combs a Taser or pepper spray would have saved Bailey’s life is a difficult question; however, it does seem likely that, in part because of the governance structure of his department, Combs did not have access to expensive Taser technology.

Moreover, the prevalence of very small departments in close proximity to each other increases the likelihood that an officer fired from one jurisdiction for serious reasons could find work as an officer in another. Poor communities are more likely to hire “gypsy cops,” officers with spotty work histories who have been fired elsewhere, because their resource constraints make it more difficult for them to discriminate between good and bad officers. 304 Again, the officers least likely to conduct their work in a procedurally just manner are siphoned toward poor communities.

Some have claimed, in line with strong federalism advocates and some basic tenets of public choice theory, that having more police agencies within close proximity increases competition, which in turn could improve their responsiveness to community needs and allow dissatisfied people to “vote with their feet” by relocating elsewhere. 305 Yet there is little evidence that these benefits emerge from the existence of very small police departments that lack meaningful external oversight, while there is some evidence that the current extreme fragmentation is detrimental to the overall quality of policing. 306

Historically, one argument against department consolidation was that administrative centralization could threaten officers’ ability to engage in community policing. 307 However, it may not be empirically true that fragmentation of police administration is correlated with, let alone a catalyst of, effective community-oriented policing. Indeed, some of the most celebrated efforts to link police and community have taken place in larger departments. 308

By contrast, the sheer volume of locally controlled police departments, all of which have slightly different policies and issues, creates a major barrier to systemic reform. The seemingly infinite variations on police policy means that scholars and policymakers may observe common problems across local contexts but find it difficult to sufficiently address those problems on a larger scale. Consolidation would help if only because it would decrease the number of departments and make it easier to gain a picture of their policies and practices.

Unlike many of the structural reforms proposed in this Part, department consolidation has gained some support from advocates for money saving in criminal justice. After the 2008 recession, municipal budgets shrank and many officers were furloughed or laid off. 309 Local executives are increasingly considering police consolidation as a potential cost-effective structural reform, and some departments have already consolidated as a way to cut redundancies. 310 Thus, consolidation could win the mutual support of fiscal conservatives and liberals, building a coalition reminiscent of the left-right nexus on cutting mass incarceration. 311 However, significant hurdles could impede such a reform. For one, members of the public who live in very small towns may interpret consolidation of small departments as a cut to their public safety and to local control of their police force. In addition, consolidation would mean that some people who have immense power would be required to yield it. These fundamental issues mean that securing support for department consolidation in local areas will pose a significant challenge.

D. Raising the Stakes of Fourth Amendment Jurisprudence

Understanding today’s policing crisis as a problem of legal estrangement clarifies and raises the stakes of our Fourth Amendment jurisprudence. When judges rule on the lawfulness of police conduct in a single case, they are ruling on a “program.” 312 That program is bigger than systematic Terry stops-and-frisks of young African American and Latino men. 313 The program is endemic to policing itself, including serving warrants 314 and responding (or not responding) to calls for assistance. Because of the longstanding social, cultural, and symbolic meaning of the police among African Americans and in racially and socioeconomically marginalized communities, policing cases—more than others—send messages to groups about social inclusion and, indeed, social citizenship. Legitimacy theory does not offer a consistent mode of response to this problem. 315

What messages are conveyed in Fourth Amendment jurisprudence? Justice Sotomayor’s impassioned dissent in Strieff showed her understanding that this case, even though it involved a white defendant, blessed police discretion to behave in ways that denigrate and alienate minority populations. To illustrate, we can return to the facts of Strieff . 316 In Strieff , a narcotics detective, Douglas Fackrell, conducted surveillance outside a home in southern Salt Lake City, Utah, for about a week. Fackrell had received an anonymous tip that people were selling and purchasing methamphetamine there. Fackrell saw several people enter and leave the home after short periods of time—behavior that, in his view, was consistent with drug dealing and purchasing. Edward Strieff was one of the people who visited the home. On one of these surveillance days, Strieff left the home in question and went to a nearby convenience store. Even though Fackrell only knew that Strieff had visited the home—information that did not amount to reasonable suspicion to justify a search—Fackrell followed Strieff to the convenience store, stopped him, and questioned him about what he was doing at the home in question. Fackrell also took Strieff’s identification card and shared his information with a police dispatcher. The dispatcher told Fackrell that Strieff had an open warrant for his arrest on a minor traffic violation. Fackrell then arrested Strieff, and in a search incident to arrest, found the evidence he was looking for: Strieff was holding a small baggie of meth and other drug paraphernalia. 317

Why is this case troubling? Fackrell violated the Fourth Amendment by stopping Strieff in the first place; even the prosecutor conceded that point. 318 Yet the Court ruled that because Fackrell learned that Strieff had an open warrant for arrest—even if just for a minor traffic violation—the search he conducted was sufficiently attenuated from the unconstitutional stop that the evidence Fackrell discovered was admissible. In a world where few people had open warrants, this decision might seem somewhat troubling, but not catastrophic. Yet in a scenario where a substantial number of people have open warrants, often for the most minor of infractions, often for noncriminal violations of probation and parole conditions, and often because of their poverty, 319 the Strieff decision authorizes tremendous power. Police officers are now free to arbitrarily (and even unconstitutionally) stop people, ask them for their identification, have a dispatcher search their record, find an arrest warrant for a long-unpaid parking ticket or a missed appointment with a probation officer, and use that ticket as a reason to conduct any physical search that they would like to conduct. If they find any contraband, that contraband could be used as evidence in court. While police officers need discretion in order to locate and deter crime, this ruling gives them a worrisome amount of license. When one views this ruling in context and imagines strategies like Fackrell’s playing out in racially and socioeconomically marginalized places like West Baltimore, one understands more clearly that the Court has endorsed the wholesale exclusion of poor African Americans (and often Latinx communities) from the protection of the law and from their rightful place in society.

In Whren v. United States , the Court ruled, inter alia, that challenges to police investigations based on race-based selective enforcement must proceed through Fourteenth Amendment equal protection analysis rather than Fourth Amendment analysis. 320 Given the very high bar for proving racial discrimination under the Equal Protection Clause post- Washington v. Davis , 321 Whren significantly curtails the degree to which Fourth Amendment jurisprudence on police investigation could be used to correct racial discrimination in the conduct of police investigations.

Thus, state courts might under some circumstances be better suited than federal courts to factor in the local context of racial discrimination and disparity reflective of legal estrangement. For example, in late 2016, the Massachusetts Supreme Judicial Court ruled in Commonwealth v. Warren that an African American man’s decision to flee from the police is not, on its own, sufficiently probative of reasonable suspicion. 322 The court partly based its reasoning on statistical evidence that African American men in Boston disproportionately experience stops based on racial profiling. 323 Black male Bostonians, the court cautioned, “might just as easily be motivated by the desire to avoid the recurring indignity of being racially profiled as by the desire to hide criminal activity.” 324 In other words, in an environment where the police have signaled strongly to African American men that their group is not a full part of society entitled to the presumption of innocence, the natural response to that communication is to avoid the police, regardless of any involvement in crime. This was a judicial acknowledgement of the potential effects of legal estrangement.

Judges who rule on the constitutionality of searches should keep in mind the stakes of giving too much leeway to the police, stakes that legal estrangement theory illuminates. Traditionally, we think of the potential harms of policing gone awry as violations of privacy and individual dignity, and on the opposite side, we weigh the police’s ability to respond to and reduce crime. 325 Yet as important as individual privacy is, the collective stakes are even higher. Moreover, some have argued that the text of the Fourth Amendment, emphasizing reasonableness, demands that courts consider distributional outcomes of searches and seizures by race, gender, and other group categories. 326 The question of reasonableness has grown obscure as Fourth Amendment jurisprudence has come to focus so heavily on warrants, consent, probable cause, and so forth, perhaps distracting courts from the fundamental reasonableness inquiry that should take into account distributional concerns between groups. 327 Getting Fourth Amendment rulings wrong by giving the police too much power risks both individual and collective membership in the American social order.

E. Democratizing the Police

Legal estrangement demands a deep, meaningful approach to democratizing police governance. Bringing about cohesion and solidarity between police and African American and poor communities will require a more aggressive infusion of deliberative participation in policing than most proposals demand. A legitimacy approach might not object to deep democratization—these processes would arguably make the police more effective in securing voluntary compliance and would arguably encourage the police to use procedurally just methods—but legitimacy would not require it.

Barry Friedman and Maria Ponomarenko have recently argued against police exceptionalism in policymaking. They propose that police policies, such as the use of SWAT teams and warrantless searches, require legislative authorization, administrative rulemaking with notice-and-comment, or some other democratic process similar to other areas of regulation. 328 While their argument is persuasive, the communities most affected by legal estrangement are often locked out of the democratic process more generally. For a panoply of reasons, ranging from the education gap, to felony disenfranchisement and its chilling effects on turnout in high-incarceration communities, to active efforts at voter suppression, to gerrymandering, to the capture of policymaking through high-stakes lobbying, African Americans—particularly if they live in high-poverty communities—have relatively little say in who their representatives are or in the legislation that their representatives ultimately pass. 329 The public in general participates sparingly in administrative rulemaking, and race- and class-distributed access gaps have long been seen in that area of lawmaking as well. 330 Shifting toward more democratic processes is important on the grounds of democracy and the rule of law, and it does provide an opening for meaningful change. However, it is unlikely on its own to unsettle legal estrangement in the communities that are most affected by it. 331 Combining these processes with other democracy-enhancing reforms might be necessary.

Transparency measures, including data collection and “hot ticket” reforms such as police officer body cameras, can also contribute to the overall democratization of policing in a way that could begin to root out legal estrangement. 332 Currently, the most widely distributed videos that focus on police generally show officers either engaging in forceful or other distasteful behavior, or performing acts such as dancing, playing basketball, or distributing ice cream. The former are unsettling because they emphasize police wrongdoing rather than police officers’ effective interactions with the public, which are likely more common; the latter are unsettling because they suggest such acts are core to today’s iteration of “community policing.” Data might alert scholars and activists to overlooked systemic problems, but they could also illuminate police agencies and officers that are doing their work properly. If one suspects that most police interactions go the way that they should, data and transparency can potentially be a boon to solidarity between officers and communities. Data can perhaps put what police actually do most of the time in clearer perspective.

When then-State Senator Obama led the Illinois Legislature in passing antiracial profiling legislation in 2003, 333 he emphasized that the purpose of the bill was to collect data on police activity. He convinced the Fraternal Order of Police that the data would give them an opportunity to show that they were doing valid police work, not engaging in racial discrimination. 334 This initiative represents only one example of a transparency measure that could serve both to root out estrangement and to provide a more informed understanding of police. Yet perhaps an even more effective approach would include ways to make policing more qualitatively transparent—for instance, making videos of regular police work more publicly available, opening access to police departments, and perhaps even finding ways to support more adversarial forms of transparency and accountability, such as organized cop watching. 335

Reconciliation is a third type of democratic reform that the legal estrangement perspective might suggest. Criminologist and activist David Kennedy, along with leaders of the DOJ-funded National Initiative for Building Community Trust and Justice, have proposed that police departments undertake a “reconciliation” process between officers and historically distressed communities. 336 Although the specific mechanisms that would be officially instituted are unclear, the proposed process would involve “a method of facilitating frank engagements between minority communities, police, and other authorities that allow them to address historical tensions, grievances, and misconceptions, and reset relationships.” 337 The idea of reconciliation builds on Kennedy’s groundbreaking work as founder of Operation Ceasefire and the National Network for Safe Communities (NNSC). Through these two organizations, Kennedy and others engaged in a deep strategy of violence prevention by working with local gangs and bringing those offenders together with key stakeholders, including the police. 338 The newly proposed reconciliation efforts represent an effort to scale up some of the insights gained from these local violence-reduction interventions.

The mechanics of this reconciliation proposal remain unclear. The proposal is distinct from prevailing democratic reform recommendations because it takes very seriously the historical roots of legal estrangement, accommodates the complexity of the dynamics between officers and communities, and in some ways meets the Habermasian ideal of a truly deliberative, consent-based approach to policing. Taking full account of historical distrust is essential to the success of cultural change, to avoid “merely replacing one modality of domination with another.” 339

However, governments usually use truth and reconciliation processes to address injustices that occurred over a cognizable, bounded time period and involved a fairly identifiable set of wrongdoers. 340 To deal with the problem of legal estrangement, a restorative reconciliation model would have to recognize the deeply systemic nature of the problem. Moreover, NNSC’s goal of reducing violence is not the same as rooting out legal estrangement. A key insight that drives the innovation in Operation Ceasefire and other programs is that most of the violence in a community is concentrated within relatively confined networks. 341 Thus, deeply targeting those networks in a deliberative, legitimacy-building way is a successful approach. Legal estrangement, in contrast, is more dispersed and broadly influential. However, the basic intuitions of reconciliation—intentionally bringing police and communities together to build trust on a group level, and actively reckoning with the collective memories of harsh policing—reflect the type of intensive, deeply democratic process that might produce long-lasting cultural change.

F. Shrinking & Refining the Footprint of the Police

Finally, the legal estrangement perspective raises fundamental questions about the role of police in society. Police—and more broadly, the criminal justice system—have become the primary vehicle through which the state responds to social deprivation. 342 At times, police can play a positive role in channeling resources to people who need them, particularly as a conduit into diversion and decarceration programs that may, for example, help people get into counseling and narcotics rehabilitation programs. 343 Yet as a matter of principle, routing rehabilitation and social services through the police could perversely widen the carceral net and reify the “culture of control.” 344 The expansion of policing control has added to police departments’ coffers over the past three decades, leading to the growth of many forces. 345 Yet even police officers complain that the system expects them to play an outsized role in poor people’s daily lives, performing functions that supplant work ideally done by the welfare state and social services. 346 This work—responding to mental health crisis, 347 truancy, 348 homelessness, 349 and more 350 —is done by civil servants who are authorized to carry guns and use lethal force. 351 It is done by civil servants who, through the mechanisms of self-selection, 352 institutional culture, 353 and perhaps more, may be more punitive or less empathetic than the average civil servant. 354

The legal estrangement perspective should encourage serious reflection on whether, and how much, armed officials should inhabit the role of social caretaker. Recently, scholars and policymakers have pushed for a cultural shift in policing, proposing that officers see themselves as “guardians” rather than “warriors.” 355 While this work is commendable, it demands greater discussion of the nature and scope of the guardianship that we should expect the police to provide. It might be that reforms that enable greater collaboration between police and social services could make the police more legitimate at an individual level—but it might also, in the aggregate, worsen disparities in criminal justice treatment by race and class. This aggregate effect would increase legal estrangement.

Ultimately, the legal estrangement perspective demands a more holistic discussion of institutional competence. A legitimacy analysis often examines institutions in a decontextualized way, assessing whether a particular institution (here, the police) has legitimacy or not. Legal estrangement encourages a more relational examination of institutions. The frailty of one bundle of institutions—here, the welfare state—might chip away at the legitimacy of the police, of other institutions, and perhaps the state itself. Shrinking the footprint of armed bureaucrats and creating a more robust system of civil supports might bring more legitimacy to these institutions and increase their capacity to produce social inclusion.

This Essay argues that legal estrangement—a theory that focuses on the symbolic and structural marginalization of African Americans and the poor from society—provides richer theoretical grounding for police reform. Legal estrangement theory incorporates procedural justice, a solution derived from legitimacy theory, as a first step toward understanding police distrust among African American and poor communities. Yet legal estrangement surpasses legitimacy theory by fully considering two larger levels at which distrust operates: vicarious marginalization and structural exclusion. Vicarious experiences range from the mistreatment of a friend, as Jamila experienced, or through learning about more distant negative treatment, as Shawna experienced when she learned about the officer rapes. Structural aspects of policing—the drug searches that happened at Lemuel’s school, the “knockers” that he encountered in his neighborhood, and the discretion to enforce questionable walking ordinances against kids like Justin—exclude whole groups of people from experiencing policing as a protective benefit and create a dividing line between the valued and the valueless.

Drawing on these theoretical insights, I have proposed a number of areas for reform that, taken together, should help create the deep and lasting cultural change that will be required to truly overcome legal estrangement. These reforms range widely, including more technocratic reforms (restructuring police wages and consolidating districts), judicial measures (rethinking Fourth Amendment levels of interpretation), community-centered measures (democratization, reconciliation, and transparency), and a fundamental revisitation of institutional roles (shrinking and refining the police footprint while linking it to a shoring up of critical social welfare institutions). These solutions offer a deeper path forward than the legitimacy perspective does, pushing beyond procedural justice. They do, of course, remain incomplete. The legal estrangement perspective demands taking account of historically rooted group marginalization and the collective consciousness of discrimination and mistreatment. This historical and collective perspective is central to the project of police reform. Accordingly, the perspective sensitizes police reformers to the idea that, while modifications within the institution of policing are critical and should move beyond individual line officers, their work will not be finished until it spurs change in the full array of institutions that perpetuate poverty, race-correlated disadvantage, and symbolic statelessness.

Volume 133’s Emerging Scholar of the Year: Robyn Powell

Announcing the eighth annual student essay competition, announcing the ylj academic summer grants program.

136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

See Mapp v. Ohio, 367 U.S. 643 (1961); see also Rachel A. Harmon, Promoting Civil Rights Through Proactive Policing Reform , 62 Stan. L. Rev . 1, 10 & n.25 (2009) (describing limitations of the exclusionary rule).

Strieff , 136 S. Ct. at 2071. For the content cited by Justice Sotomayor, see Michelle Alexander, The New Jim Crow 124-26 (2010); James Baldwin, The Fire Next Time 19 (Modern Library 1995) (1962); Ta-Nehisi Coates, Between the World and Me 82-91 (2015); W.E.B. Du Bois, The Souls of Black Folk , in Writings 364-65 (Nathan Huggins ed., 1986) (1903) (describing double-consciousness); and Marie Gottschalk, Caught (2015). See also Tracey L. Meares & Tom R. Tyler, Justice Sotomayor and the Jurisprudence of Procedural Justice , 123 Yale L.J. F . 525 (2014) (explaining how Justice Sotomayor’s jurisprudence relates to social science research on legitimacy theory).

Strieff , 136 S. Ct. at 2069.

Id. ; cf. I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases 98-99 (Mark Tushnet ed., 2008) (describing the rhetorical devices used by Justice Brandeis in Whitney v. California ); Lani Guinier, Foreword: Demosprudence Through Dissent , 122 Harv. L. Rev . 4 (2008) (arguing that oral dissents provide an avenue for democratic communication to a public audience).

President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 9-11 (2015) [hereinafter Task Force Report ].

See, e.g. , id. at 11. Importantly, the empirical research that led to the legitimacy findings treats legitimacy and trust as related but distinct topics. For example, Tyler and Huo use legitimacy as an umbrella variable that includes trust and confidence in police as one component of the broader concept. Tom R. Tyler & Yuen J. Huo, Trust in the Law 108-11 (2002); see also Tom R. Tyler & Jeffrey Fagan, Legitimacy and Cooperation: Why Do People Help the Police Fight Crime in Their Communities ? , 6 Ohio St. J. Crim. L. 231, 270-71 (2008) (assessing police legitimacy using three factors, one of which is trust and confidence).

See infra Part I; see also Tyler & Huo, supra note 8, at 146-52 (presenting the results of a study showing racial differences in perceptions of procedural fairness); David S. Kirk & Andrew V. Papachristos,  Cultural Mechanisms and the Persistence of Neighborhood Violence , 116 Am. J. Soc . 1190, 1217 (2011); Robert J. Sampson & Dawn Jeglum Bartusch, Legal Cynicism and (Subcultural?) Tolerance of Deviance: The Neighborhood Context of Racial Differences , 32 Law & Soc’y Rev . 777, 793 (1998); Jason Sunshine & Tom R. Tyler, The Role of Procedural Justice and Legitimacy in Shaping Public Support for Policing , 37 Law & Soc’y Rev . 513 (2003) (exploring the relationship between procedural fairness, police legitimacy, and public support of the police).

See, e.g. , Sunshine & Tyler, supra note 9, at 526 (“Compliance was also found to be influenced by ethnicity, income, and gender, with whites, the more well off, and female respondents more likely to comply with the law . .  . . ”); Tom R. Tyler, Policing in Black and White: Ethnic Group Differences in Trust and Confidence in the Police , 8 Police Q. 322, 333 (2005) (“White respondents reported the highest level of cooperation in fighting crime, African Americans the lowest . . . . [ I]nstitutional trust shaped cooperation among all groups . . . .”); Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law , 30 Crime & Just . 283, 294-95 (2003) [hereinafter Tyler, Procedural Justice ] (“[ M]inority group members are less willing to accept the decisions of legal authorities and less satisfied with those authorities with whom they deal . . . . [ M]inority group members are less likely to accept decisions because they feel unfairly treated.”).

E.g. , Sunshine & Tyler, supra note 9, at 537; Tyler, Procedural Justice , supra note 10, at 350.

Consider, for example, the case of Antronie Scott, shot and killed on February 4, 2016. When San Antonio police officer John Lee stopped Scott in order to execute an arrest warrant, “Scott spun around quickly and the officer feared for his life.” Jacob Beltran & Mark D. Wilson, Man Wanted on Two Felony Warrants, Shot Dead by Police, Was Unarmed , San Antonio Express-News (Feb. 5, 2016, 10:57 PM), http://www.expressnews.com/news/local/article/Man-wanted-on-two -felony-warrants-shot-dead-by-6809709.php [http://perma.cc/962D-34M6].

Consider, for example, the case of Charles Kinsey, shot and injured on July 18, 2016. Kinsey, a behavioral therapist who was working with an autistic adult, was shot lying on his back, with his hands in the air. The facts surrounding the case are complex. Officer Jonathan Aledda, who shot Kinsey, later claimed that he was attempting to shoot the autistic Latino man with whom Kinsey was working; the man was holding a toy gun that the original caller had suggested might be a gun. However, several circumstances surrounding the incident weaken this potential explanation. Charles Rabin, Charles Kinsey Was Shot Less Than Six Minutes After Police Arrived , Miami Herald (Aug. 5, 2016, 5:22 PM), http:// ‌ http://www.miami ‌ herald ‌ .com/news/local/crime/article94009242.html [ http :// ‌ perma.cc ‌ /Z9K6-NBU7].

In general, it is important to note that police uses of force can be unreasonable, and thus punishable, even if the victims were disobeying the law or failing to comply with officer commands. The test of objective reasonableness in police excessive use of force cases depends on an assessment of the totality of the circumstances surrounding the use of force at issue, not simply whether the victim was breaking the law or disobeying the officer at the time of the forceful act. See Graham v. Connor, 490 U.S. 386, 388, 396-97 (1989).

Consider, for example, the case of Eric Garner, who suffered a fatal heart attack on July 17, 2014 after police attempted to arrest him for selling loose, untaxed cigarettes. See Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death , N.Y. Times (June 13, 2015), http://www.nytimes.com/2015/06/14/nyregion/eric-garner -police-chokehold-staten-island.html [http://perma.cc/57S7-2FYX]; Stephen L. Carter, Law Puts Us All in Same Danger as Eric Garner , Bloomberg View (Dec. 4, 2014, 10:56 AM), http://www.bloomberg.com/view/articles/2014-12-04/law-puts-us-all-in-same ‌‌ -dan ‌ ger ‌ -as -eric-garner [http://perma.cc/2X6Y-DJLB]; see also Douglas Husak, Overcriminalization: The Limits of the Criminal Law 33-44 (2008) (analyzing the differences between core and peripheral criminal offenses); William J. Stuntz, Self-Defeating Crimes , 86 Va. L. Rev . 1871, 1894 (2000) (describing legislative incentives to criminalize specific behaviors at the urging of even a minority of the population). One of the perils of broken-windows policing (also known as order-maintenance or quality-of-life policing) is that its emphasis on enforcing petty laws imbues the police with increased power and focus on social and racial control, particularly in high-poverty, racially marginalized communities. See, e.g. , Robert J. Sampson, When Things Aren’t What They Seem: Context and Cognition in Appearance-Based Regulation , 125 Harv. L. Rev. F . 97, 103-06 (2012). That officers enforce these laws at all likely decreases their legitimacy. See Avani Mehta Sood, Cognitive Cleansing: Experimental Psychology and the Exclusionary Rule , 103 Geo. L.J . 1543, 1582 (2015) (suggesting, using experimental research, that unconstitutional police conduct had less effect on people’s assessments of police legitimacy when the police were intervening in serious crime compared to when they were intervening in more minor crime).

Criminal justice contact includes, but is not limited to, police stops, arrests, generalized interaction between police and communities in heavily policed neighborhoods, periods of incarceration, and periods of community supervision (including probation and parole). For a general discussion of criminal justice contact and surveillance, see, for example, Sarah Brayne, Surveillance and System Avoidance: Criminal Justice Contact and Institutional Attachment , 79 Am. Soc. Rev . 367, 370, 373, 375 (2014).

See, e.g. , Alexander, supra note 3, at 4 (“[ M]ass incarceration in the United States had . . . emerged as a stunningly comprehensive and well-disguised system of racialized social control.”); Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America (2010); David Garland, The Culture of Control: Crime & Social Order in Contemporary Society 75-92 (2001) (arguing that a variety of social, economic, political, and cultural changes arising in the late twentieth century led to changes in crime control, including shifts in policing strategy); Gottschalk , supra note 3, at 258; Michael Tonry, Malign Neglect: Race, Crime, & Punishment in America 17-26 (1995) (debunking claims that rising incarceration rates have reduced violent crime); Bruce Western, Punishment & Inequality in America 4, 43-51 (2007) (“[T]he prison boom was a political project that arose partly because of rising crime but also in response to an upheaval in American race relations in the 1960s and the collapse of urban labor markets for unskilled men in the 1970s.”); Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors , 66 Stan. L. Rev . 611, 630, 653-70 (2014); Tracey L. Meares, Programming Errors: Understanding the Constitutionality of Stop-and-Frisk as a Program, Not an Incident , 82 U. Chi. L. Rev . 159, 162 (2015); Loïc Wacquant, Deadly Symbiosis: When Ghetto and Prison Meet and Mesh , 3 Punishment & Soc’y 95 (2001) (arguing that the combination of “hyperghetto” and the prison is the current stage of “peculiar institutions” designed to control African Americans, in the lineage of slavery and Jim Crow); see also Michel Foucault, Discipline & Punish 138-39 (Alan Sheridan trans., 2d ed. 1995) (describing the process of “disciplinary coercion” of human bodies through societal institutions, which include the prison).

See Task Force Report, supra note 6, at 51-60; see also id. at 17, 20-21, 34, 46 (describing training initiatives under each of the six pillars: legitimacy, policy and oversight, technology and social media, community policing and crime reduction, training and education, and officer wellness and safety). Note that the training described under Pillar Six (officer safety and wellness) is primarily safety training (e.g., training police officers to wear seat belts and bulletproof vests), not procedural justice training. The key point is that the Report leaves an overarching impression that solving the problems facing twenty-first-century police is a matter of training frontline officers, not restructuring and reimagining policing.

See, e.g. , Police Exec. Research Forum , U.S. Dep’t of Justice, Legitimacy and Procedural Justice: A New Element of Police Leadership 2 (2014), http:// ‌ www ‌ .police ‌ forum.org ‌ /assets ‌ /docs ‌ /Free_Online_Documents ‌ /Leadership ‌ /legitimacy ‌ %20and ‌ %20 ‌ p ‌ roce ‌ dural ‌ %20justice ‌ %20 -%20a%20new ‌ %20element%20of ‌ %20police%20leadership.pdf [http:/ ‌ / ‌ perma.cc/H85N -MXAJ] (“As today’s police executives strive to maintain the progress in reducing crime while serving as effective agents of change, many are taking on a new challenge: applying the concepts of ‘legitimacy’ and ‘procedural justice’ as they apply to policing.”); Local 12, Implementing “Procedural Justice” Nationwide , YouTube (Dec. 19, 2014) http:// ‌ www ‌ .youtube ‌ .com/watch?v=P1O08U8RwFo [http:// ‌ perma.cc/HF4R-9CFD]; Mark Sedevic, Procedural Justice & Police Legitimacy Training in Chicago: Reaping the Benefits of the Golden Rule , 911 M ag. , http://www.9-1-1magazine.com ‌ /Sedevic ‌ -Procedural-Justice-Train ‌ ing [http:// ‌ perma.cc/75L4-SDBG]; Ronal W. Serpas & Remi A. Braden, Reply to Community Policing Revisited: Implementing the Principles of Procedural Justice and Police Legitimacy , Police Chief (Mar. 2016), http://www.policechiefmagazine.org/ideas-insights-reply-to-co ‌ m ‌ m ‌ unity -policing-revisited-implementing-the-principles-of-procedural-justice-and-police-legit ‌ i ‌ macy [http://perma.cc/9VYP-85T5] (“Integrating the principles of procedural justice and police legitimacy throughout policing is the answer to [community policing] problems. They form the basis for the core service delivery model that must be used in every citizen encounter to build the support and cooperation necessary to implement community policing more completely throughout the United States.” ( footnote omitted)).

See, e.g. , Daniela Gilbert, Stewart Wakeling & Vaughn Crandall, Procedural Justice and Police Legitimacy: Using Training as a Foundation for Strengthening Community-Police Relationships 8-10 (2015) (describing the adoption of procedural justice training in three California cities—Oakland, Salinas, and Stockton); Wesley G. Skogan, Maarten Van Craen & Cari Hennessy, Training Police for Procedural Justice , 11 J. Experimental Criminology 319 (2015) (describing the Chicago training); Karim Shamsi-Basha, Birmingham Community Service Officer Heather Campbell Offers Plenty of Compassion, Courtesy , Birmingham Times (July 28, 2016), http://www.birming ‌ ham ‌ times ‌ .com ‌ /2016 ‌ /07 ‌ /bir ‌ ming ‌ ham-community-service-officer-heather-campbell-offers-plenty-of ‌ -com ‌ pass ‌ ion ‌ -cour ‌ tesy ‌ / [http:// ‌‌ perma.cc/Q8XQ-TXVR] (quoting Birmingham Police Chief A.C. Roper as saying, “We just went through 16 hours of procedural justice . . . . That talks about day-to-day interactions and learning how to be neutral and how to listen to people.”).

See, e.g. , United States v. City of Cleveland, No. 1:15CV1046, at 10-11 (N.D. Ohio May 25, 2016); Consent Decree at 73-74, United States v. City of Ferguson, No. 4:16-cv-000180-CDP (E.D. Mo. Mar. 17, 2016).

Sedevic, supra note 18 (“Procedural justice and police legitimacy [are] as basic as the old adage, ‘It is not what you say, but how you say it. It is not what you do, but how you are doing it.’ Procedural justice and legitimacy in law enforcement is not just a strategy, but a movement . .  . . It is about doing the right thing all of the time and treating others how you would want to be treated.”).

See, e.g. , Brandis Friedman, Chicago Police Department Ramps Up Training for ‘Police Legitimacy , ’ Chi. Tonight (Jan. 17, 2017), http://chicagotonight.wttw.com/2017/01/17/chicago-po ‌ lice ‌ -department ‌ -ramps ‌ -training-police-legitimacy [http://perma.cc/RYA6-AJGT]; Kurt Rivera, Stockton Police Strive for More ‘Respectful’ Department , ABC10.com , http:// ‌ www ‌ .abc 10 ‌ .com/news/local/stockton/stockton-po ‌ lice ‌ -strive-for-more-respectful-department/3869 ‌ 1 ‌ 7 ‌ 3 ‌ 8 ‌ 8 [http://perma.cc/66JS-23H9] (describing Stockton’s adoption of a three-year strategic plan on procedural justice shortly before Trump’s inauguration).

See Donald J. Trump, 2016 Presidential Candidate Questionnaire , Int’l Ass’n Chiefs Police (Aug. 20, 2016), http://www.theiacp.org/Portals/0/documents ‌ /pdfs/TrumpResponse ‌ Final ‌ .pdf [http:// ‌ perma ‌ .cc ‌ /5YKJ-NJN5].

Donald J. Trump (@realDonaldTrump), Twitter (Jan. 24, 2017, 9:25 PM), http:// ‌ twitter ‌ .com ‌‌ /real ‌ Donald ‌‌ Trump/status/824080766288228352 [http://perma.cc/RWE6-WWCQ].

See, e.g. , Eric T. Schneiderman, A Report on Arrests Arising from the New York City Police Department’s Stop-and-Frisk Practices 4 (2013); John MacDonald, Jeffrey Fagan & Amanda Geller, The Effects of Local Police Surges on Crime and Arrests in New York City , 11 PLoS One (2016); see also Max Ehrenfreund, Donald Trump Claims New York’s Stop-and-Frisk Policy Reduced Crime. The Data Disagree , Wash. Post (Sept. 22, 2016), http:// ‌ www ‌ .wash ‌ ingtonpost.com ‌ /news/wonk ‌ /wp ‌ /2016 ‌ /09/22 ‌ /don ‌ ald-trump-claims-new-yorks-stop -and ‌ -frisk-policy-reduced-crime-the-data-disagree [http:// ‌ perma.cc/N7NY-KGXH].

See Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013).

392 U.S. 1, 27 (1968) (describing the type of factual analysis an officer must conduct to justify suspicion for a stop-and-frisk).

Alexander Bolton, Trump Team Prepares Dramatic Cuts , Hill (Jan. 19, 2017), http:/ ‌ /thehill ‌ .com/policy ‌ /finance ‌ /314991-trump-team-prepares-dramatic-cuts [http://perma.cc/HK77 -FPGN].

See John J. Donohue III & Jens Ludwig, More COPS , Brookings Pol’y Brief 3 (Mar. 2007) (“COPS increased the total number of police officers on the street in the peak year of 2000 by 11,900 officers, equal to around 2 percent of the total police force in the country that year.”).

Presidential Executive Order on a Task Force on Crime Reduction and Public Safety , White House (Feb. 9, 2017), http://www.whitehouse.gov/the-press-office ‌ /2017/02 ‌ /09 ‌ /pres ‌ iden ‌ tial ‌‌ -executive-order-task-force-crime-reduction-and-public [http:/ ‌ /perma.cc/K98A -6VDM].

Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers , White House (Feb. 9, 2017), http://www.whitehouse.gov/the-press -office ‌ /2017/02/09/presidential-executive-order-preventing-violence-against-federal-state [http:// ‌ perma.cc/QS39-X6SM].

See John Fritze, Jeff Sessions Voices Concern About Use of Consent Decrees for Police , Balt. Sun (Jan. 10, 2017), http://www.baltimoresun.com/news/maryland/politics/blog/bal-jeff-sess ‌ ions ‌ -voices ‌ concern ‌ -a ‌ bout ‌ -use-of-consent-decrees-for-police-20170110-story.html [http:// ‌ perma.cc/2V9G-WP5J].

See Police Exec. Research Forum , Civil Rights Investigations of Local Police: Lessons Learned 4 (2013); see also infra notes 261-264 and accompanying text.

Shibani Mahtani, Community Policing Program Faces Uncertainty Under Donald Trump Administration , Wall St. J . (Nov. 30, 2016), http://www.wsj.com/articles/community-polic ing-program-faces-uncertainty-under-donald-trump-administration-1480518002 [http:// ‌ perma.cc ‌ /KF6B-AAZ6].

See, e.g. , Samuel Walker, Why Police Reform Won’t Die Under Trump , Crime Rep . (Nov. 28, 2016), http://thecrimereport.org/2016/11/28/why-police-reform-wont-end-with-the-trump ‌ -admin ‌ istration [http://perma.cc/H9XM-DZM3].

See, e.g. , George L. Kelling & James Q. Wilson, Broken Windows: The Police and Neighborhood Safety , Atlantic (Mar. 1982), http://www.theatlantic.com ‌ /magazine ‌ /archive ‌ /1982 ‌ /03 ‌ /brok ‌ en ‌ -windows/304465 [ http://perma.cc/E454-KWSW] .

Wesley G. Skogan & Susan M. Hartnett, Community Policing, Chicago Style 10 (1999) (“Interest in community policing has also been encouraged by the emergence of a cadre of well-educated and sophisticated administrators at the top of prominent police departments . .  . .  They have been impressed by two decades of research on policing, which has highlighted some of the limitations of the way in which it traditionally has been organized.”).

See, e.g. , Anthony A. Braga, Andrew V. Papachristos & David M. Hureau, The Effects of Hot Spots Policing on Crime: An Updated Systematic Review and Meta-Analysis , 31 Just. Q. 633 (2014).

See, e.g. , Walter L. Perry et al. , Predictive Policing: The Role of Crime Forecasting in Law Enforcement Operations , Rand Corp. 3-6 (2013), http://www.ncjrs.gov ‌ /pdffiles1/nij ‌ /grants ‌ /243830 ‌ .pdf [ http://perma.cc/5LM5-C5JY] ( describing the origins of predictive policing, which partly derived from a growing interest in crime prediction among quantitative criminologists over the past forty years).

Utah v. Strieff, 136 S. Ct. 2056, 2069-71 (2016) (Sotomayor, J., dissenting).

Sampson & Bartusch, supra note Error! Bookmark not defined. , at 778.

E.g. , Monica C. Bell, Situational Trust: How Disadvantaged Mothers Reconceive Legal Cynicism , 50 Law & Soc’y Rev. 314 (2016); Jacinta M. Gau, Procedural Justice, Police Legitimacy, and Legal Cynicism: A Test for Mediation Effects , 16 Police Prac. & Res. 402 (2015); David S. Kirk, Prisoner Reentry and the Reproduction of Legal Cynicism , 63 Soc. Probs . 222 (2016).

Kirk & Papachristos, supra note 9, at 1191.

E.g. , Tom R. Tyler & Justin Sevier, How Do the Courts Create Popular Legitimacy ?: The Role of Establishing the Truth, Punishing Justly, and/or Acting Through Just Procedures , 77 Alb. L. Rev. 1095, 1129-30 (2014) (arguing that signaling inclusion is a pathway for legal authorities to get people to comply and cooperate with the law); see also Tyler & Huo, supra note 8, at xiii. This difference arises not because legitimacy scholars disregard the intrinsic value of inclusion and cohesion, but because those ends are not their outcome (or independent variables) of interest. Notably, even when this scholarship does discuss inclusion, it does so more from an individualized identity-based framework than a collective one. See, e.g. , Tom R. Tyler & Allen E. Lind, A Relational Model of Authority in Groups , 25 Advances Experimental Soc. Pyschol. 115, 139, 142 (1992) (describing the “group-value model of procedural justice,” which theorizes the consequences of treatment by authority figures on people’s sense of their own status within a group, or within society, and their “feelings of self-worth”). Group-value theory provides an account of how procedural justice contributes to an individual’s sense of belongingness within a group. It does not give an account of groups’ sense of belongingness within society. Because group-sense (culture) cannot be understood merely as an aggregation of individual perceptions, these analyses are different in kind, not mere differences in scale.

See Tom R. Tyler et al., The Impact of Psychological Science on Policing in the United States: Procedural Justice, Legitimacy, and Effective Law Enforcement , 16 Psychol. Sci. Pub . Int. 75 (2015).

See Aldon Morris, The Scholar Denied: W.E.B. Du Bois and the Birth of Modern Sociology 75, 191, 220-21 (2015) (describing the pioneering scholarship of the “Du Bois-Atlanta school” of sociology).

W.E. Burghardt Du Bois, Preface to Some Notes on Negro Crime: Particularly in Georgia , at v, v (W. E. Burghardt Du Bois ed., 1904) http://scua.library.umass.edu ‌ /digital ‌ / dubois ‌ /dubois ‌ 9 ‌ .pdf [http://perma.cc/2H78-DHBZ].

Id. at 40, 43-48.

Id. at 65. In earlier work, Du Bois had been somewhat hesitant to draw a link between objectively unfair criminal justice practices and African Americans’ perceptions of criminal injustice. See W.E.B. Du Bois, The Philadelphia Negro: A Social Study 175 (Henry Louis Gates, Jr. ed., 2007) (1899) (“It has been charged by some Negroes that color prejudice plays some part, but there is no tangible proof of this, save perhaps that there is apt to be a certain presumption of guilt when a Negro is accused, on the part of police, public and judge.”).

Du Bois, Some Notes on Negro Crime: Particularly in Georgia , supra note 47, at 65.

Nat’l Advisory Comm’n on Civil Disorders, Report of the National Advisory Commission on Civil Disorders , Nat’l Crim. Just. Ref. Serv . 19 (1968) [hereinafter Report of the National Advisory Commission on Civil Disorders] http://www.ncjrs.gov/pdffiles1 ‌ /Digitization ‌ /8073 ‌ NCJRS.pdf [http://perma.cc/75NB-BTNG].

Id. at 157; see also Stephen J. Schulhofer, Tom R. Tyler & Aziz Z. Huq, American Policing at a Crossroads: Unsustainable Policies and the Procedural Justice Alternative , 101 J. Crim. L. & Criminology 335, 342-43 (2011) (explaining that in recent years, police officers’ “preference for toughness” was believed to be harmonious with order-maintenance policing models, thereby serving positive ends for urban communities).

See, e.g. , Marilynn S. Johnson, Street Justice: A History of Police Violence in New York City (2003); Khalil Gibran Muhammad, The Condemnation of Blackness 232-40 (2010).

E.g. , Alexandra Natapoff, Underenforcement , 75 Fordham L. Rev . 1715, 1718-19 (2006). It is interesting to note that the underlying logic for harshly present policing even then—well before the philosophical turn in policing toward “community policing” and broken-windows policing, and shortly before the earliest years of the War on Drugs—was that heavy presence and harshness were necessary to reduce crime. See Kelling & Wilson, supra note 36 (explaining the broken-windows theory of policing, also known as order-maintenance or quality-of-life policing). The frayed relationship between African Americans and law enforcement was deeply entrenched well before the War on Drugs. Mass incarceration increased in part due to the War, but the issue of racialized policing has much deeper roots. Cf. Western, supra note 16, at 58 (crediting, partially, the rise of mass incarceration to shifts in the punishment of narcotics crimes).

John Hagan & Celesta Albonetti, Race, Class, and the Perception of Criminal Injustice in America , 88 Am . J. Soc. 329, 343 (1982).

Tracey L. Meares, Charting Race and Class Differences in Attitudes Toward Drug Legalization and Law Enforcement: Lessons for Federal Criminal Law , 1 Buffalo Crim. L. Rev . 137, 140, 142, 144-45 (1997) (drawing on data from the 1987 General Social Survey); see also Richard R.W. Brooks, Fear and Fairness in the City: Criminal Enforcement and Perceptions of Fairness in Minority Communities , 73 S. Cal. L. Rev . 1219, 1228-29 (2000) (“[ W]hile blacks are more likely than the general population to view police brutality and harassment as a problem, they are also much more likely to perceive crime as a serious problem. Thus blacks suffer from a ‘dual frustration’—being fearful of both the police and criminals.” ( footnotes omitted)).

Lawrence D. Bobo & Victor Thompson, Unfair by Design: The War on Drugs, Race, and the Legitimacy of the Criminal Justice System , 73 Soc. Res. 445, 456 (2006).

See, e.g. , Roland G. Fryer, Jr., An Empirical Analysis of Racial Differences in Police Use of Force 35 (Nat’l Bureau of Econ. Research, Working Paper No. 22399, 2006), http:// ‌ www ‌ .nber ‌ .org/papers/w22399 [ http://perma.cc/37MZ-3FYV ] (finding that police in the cities studied were much more likely to use nonlethal force, such as pepper spray or batons, when dealing with blacks and Hispanics, but finding no evidence of racial disparity in their use of lethal force); Campaign Zero , http://www.joincampaignzero.org [http:/ ‌ /perma.cc ‌ /Q5XM -EUBN].

E.g. , Charles R. Epp, Steven Maynard-Moody & Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship 135-36 (2014).

See, e.g. , Johnson supra , note 54; Muhammad supra , note 54, at 232-40.

Cf. Schulhofer, Tyler & Huq, supra note 53, at 341 (identifying an analogous failure of the academic community to articulate the meaning of police legitimacy).

This literature is very extensive and cannot be fully cited here, but some foundational works in the development of a sociological perspective on trust are critical to note. See, e.g. , James S. Coleman, Foundations of Social Theory 91-116 (1990); S .N. Eisenstadt, Power, Trust and Meaning: Essays in Sociological Theory and Analysis 14-16, 311-14 (1995); Anthony Giddens, The Consequences of Modernity 26-36 (1990); Niklas Luhmann, Trust and Power (John Wiley & Sons 1979) (1973); Georg Simmel, The Philosophy of Money 178-79 (Tom Bottomore & David Frisby trans., 1978).

Tom R. Tyler, Trust in the Twenty-First Century , in Interdisciplinary Perspectives on Trust: Towards Theoretical and Methodological Integration 203, 204 (Ellie Shockley et al. eds ., 2016).

Tyler & Huo , supra note 8, at xiv.

Id. at 108-09. But see Kirk & Papachristos, supra note 9, at 1207 & n.13 (focusing more narrowly on cynicism towards the legal system, as opposed to cynicism more broadly). Tyler and Huo’s conception and operationalization of cynicism about the law bears only a tenuous relationship to how sociologists conceive of and measure legal cynicism, and instead focuses on the degree to which people see themselves as “against the law” rather than more deeply alienated from it. See Tyler & Huo , supra note 8, at 104-05 (“Certainly, people with this orientation feel little responsibility or obligation to obey the law voluntarily.”).

Tyler & Huo , supra note 8, at 108-09. Although obligation to obey the law is only one component of legitimacy surveys, that component supersedes the others in part because of the conceptual definition of legitimacy. Tyler usually incorporates the idea of trust into the concepts of “motive-based trust,” or, alternatively, “normative alignment.” Motive-based trust is the degree to which people believe the police have positive, trustworthy motives. Id. at 59. Normative alignment is a slightly different concept, and focuses on the degree to which people believe the police share their values. Tom R. Tyler, Jonathan Jackson & Avital Mentovich, The Consequences of Being an Object of Suspicion: Potential Pitfalls of Proactive Police Contact , 12 J. Empirical Legal Stud . 602, 620 (2015). This literature has also, alternatively, conceived of legitimacy as a form of institutional trust in the government. Id . at 602, 620-21 (describing how the authors operationalized police normative alignment and trust in police motives in their survey).

For a targeted review of links among race, poverty, and trust, see Sandra Susan Smith, Race and Trust , 36 Ann. Rev. Soc. 453 (2010).

Tyler & Fagan, supra note 8, at 235.

See Tyler & Huo , supra note 8; see also Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility , 47 Wake Forest L. Rev . 211, 278 n.310 (2012) (pointing out that in Tyler’s earlier work, the moral credibility of the system had more weight than legitimacy of the system in determining people’s reported willingness to comply with the law); Michael D. Reisig, Jason Bratton & Marc G. Gertz, The Construct Validity and Refinement of Process-Based Policing Measures , 34 Crim. Just. & Behav. 1005, 1024 (2007) (confirming the link between procedural justice and legitimacy but also finding, inter alia, that trust in the police and perceived distributive fairness of outcomes were predictive of compliance and cooperation with law enforcement).

E.g. , Lorraine Mazerolle et al., Shaping Citizen Perceptions of Police Legitimacy: A Randomized Field Trial of Procedural Justice , 51 Criminology 33, 40-41 (2013).

See John Thibaut et al., Procedural Justice as Fairness , 26 Stan. L. Rev. 1271 (1974); John Thibaut & Laurens Walker, A Theory of Procedure , 66 Calif. L. Rev. 541 (1978).

See, e.g. , Richard H. Fallon, Jr., Law and Legitimacy in the Supreme Court (forthcoming) (chapter 1, manuscript at 3) (on file with author); Richard H. Fallon, Jr., Legitimacy and the Constitution , 118 Harv. L. Rev . 1787, 1795-1801 (2005) [hereinafter Fallon, Legitimacy and the Constitution ]; Alan Hyde, The Concept of Legitimation in the Sociology of Law , 1983 Wis. L. Rev . 379; see also Aditi Bagchi, Intention, Torture, and the Concept of State Crime , 114 Penn. St. L. Rev. 1, 23-25 (2009) (applying these concepts to illuminate a practical legal problem).

See Tyler & Fagan, supra note 8, at 239; cf. David Beetham, The Legitimation of Power 24 (2d ed. 2013) (describing the author’s “conviction that it is necessary for social science to be freed from the whole Weberian legacy if it is to make sense of the subject of legitimacy”).

See Beetham, supra note 74, at 24-25; Fallon, Legitimacy and the Constitution, supra note 73, at 1795.

Ideal types can be roughly understood as archetypes or categories. See Max Weber, The Methodology of the Social Sciences 90 (Edward A. Shils & Henry A. Finch eds. & trans., 1949); see also Kohler- Hausmann, supra note 16, at 623 & n.24.

1 Max Weber, Economy & Society: An Outline of Interpretive Sociology 215-16 (Guenther Roth & Claus Wittich eds ., Ephraim Fischoff et al. trans., 1978); see also Duncan Kennedy, The Disenchantment of Logically Formal Legal Rationality, or Max Weber’s Sociology in the Genealogy of the Contemporary Mode of Western Legal Thought , 55 Hastings L.J . 1031, 1037-44 (2004) (describing the “basic ideal typical categories Weber used in constructing his sociology of law”).

See Anthony T. Kronman, Max Weber 96-117 (1983). For Weber, legitimacy was a sociological concept about the nature of the populace’s belief in a given authority rather than a moral status, but one can perceive some slippage in Weber’s work on this point between the sociological and the normative. See generally Beetham , supra note 74, at 7-8 (comparing political philosophy and social scientific ideas of legitimacy); Fallon, Legitimacy and the Constitution , supra note 73, at 1795-1801 (comparing sociological legitimacy with moral legitimacy).

See Robert M. Cover, Violence and the Word , 95 Yale L.J . 1601, 1607-08 (1986) (explaining the connection between law as state power and violence).

As opposed to the institutional realm, which might focus on other authorities such as the church, the university, the corporation, and so forth.

Beetham , supra note 74, at 8-10 (describing the distinctions between moral and social scientific conceptions of legitimacy).

Id. at 20 (“[ L]egitimacy is . . . a set of distinct criteria, or multiple dimensions, operating at different levels, each of which provides moral grounds for compliance or cooperation on the part of those subordinate to a given power relation.”).

See Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy 222-37 (William Rehg trans., 1996). Of course, by this metric, little about policing in racially and socioeconomically isolated neighborhoods could be seen as legitimate given that police governance is rarely subjected to dialogue or even to public process. Barry Friedman & Maria Ponomarenko, Democratic Policing , 90 N.Y.U. L. Rev . 1827, 1835 (2015) (“[ P]olicing 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.”); see also David Alan Sklansky, Democracy and the Police 13-58 (2008) (describing democratic pluralist approaches to police governance). Indeed, many police officials and unions, today and in the past, view the involvement of civilians in police governance as counterproductive to the work of crime response and deterrence. Thus, various measures have been taken to curtail their power. See generally Samuel Walker, Police Accountability: The Role of Citizen Oversight (2001) (describing attempts to introduce civilian oversight to various city police departments); David Alan Sklansky, Police and Democracy , 103 Mich. L. Rev . 1699 (2005) (describing setbacks for civilian review boards in several cities). In a recent debate over a set of extensive police reforms in Maryland, civilian membership on police accountability boards was reportedly the primary sticking point between the police union and reform advocates. Ovetta Wiggins, Sweeping Maryland Police Reform Measure Hits Stumbling Block , Wash. Post (Apr. 5, 2016), http:// ‌ www ‌ .washingtonpost.com /local/md-politics/sweeping-maryland -police-re ‌ form ‌ -measure-hits-stumbling-block/2016/04/05/e5a0b2dc-fada-11e5-886f -a037dba38301 ‌ _sto ‌ ry.html [http:/ ‌ /perma.cc/2A54-FQG6]. Ultimately, the reform act passed and went into effect with its original language mandating civilian involvement in police accountability removed, leaving it to individual jurisdictions to decide whether to include civilians in reviewing police misconduct complaints. Justin Fenton, Citizens to Gain Peek at Police Discipline, but Not Full View , Balt. Sun (Apr. 17, 2016), http://www.baltimoresun.com ‌ /news ‌ / maryland ‌ /crime/bs-md ‌ -police-accountability-bills-20160417-story.html [http://perma.cc/7LDG-DP9Q].

See 1 Antonio Gramsci, Prison Notebooks 137 (Joseph A. Buttigieg trans., Columbia Univ. Press 1992) (1948) .

See, e.g. , Tom R. Tyler, Why People Obey the Law 19-27 (1990) (orienting this application of legitimacy theoretically); Tyler & Huo , supra note 8, at 102 (explaining the importance of self-regulation and internalized obligation to defer to the law); Tom R. Tyler & Cheryl J. Wakslak, Profiling and Police Legitimacy: Procedural Justice, Attributions of Motive, and Acceptance of Police Authority , 42 Criminology 253, 254-55 (2004) (describing the public’s view of police legitimacy in the context of racial profiling).

See, e.g. , Task Force Report , supra note 6, at 1-2; Rich (Skip) Miller, The Importance of Procedural Justice , Community Policing Dispatch (Sept. 2013), http://cops.usdoj .gov ‌ /html ‌ /dispatch ‌ /09-2013/the_importance_of_procedural_justice.asp [http://perma.cc ‌ /M6S7 ‌ -96TH] (describing procedural justice implementation in the Sioux Falls, South Dakota police department and encouraging other departments to take a similar approach, explaining, “If the community views their officers as being legitimate they are more likely to comply with the law. They are also more likely to agree with police decisions and less likely to be confrontational or hostile toward us.”).

See, e.g. , Schulhofer, Tyler & Huq, supra note 53, at 374; Tom R. Tyler, Multiculturalism and the Willingness of Citizens To Defer to Law and to Legal Authorities , 25 Law & Soc. Inquiry 983, 999 (2000) (“Demographic characteristics such as ethnicity and gender do not affect the relative importance of procedural justice concerns in determining procedural preferences—everyone cares about procedural justice.”); Tom R. Tyler, What Is Procedural Justice ?: Criteria Used by Citizens To Assess the Fairness of Legal Procedures , 22 Law & Soc’y Rev . 103, 125 (1988).

See, e.g. , Tom R. Tyler, Policing in Black and White: Ethnic Group Differences in Trust and Confidence in the Police , 8 Police Q . 322 (2005).

See Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility , 47 Wake Forest L. Rev . 211, 220 (2012); Tracey L. Meares, Tom R. Tyler & Jacob Gardener, Lawful or Fair? How Cops and Laypeople Perceive Good Policing , 105 J. Crim. L. & Criminology (2016). But see Aziz H. Huq, Jonathan Jackson & Rick Trinkner, Legitimating Practices: Revisiting the Predicates of Police Legitimacy , 56 Brit. J. Criminology (2016) (delving deeper into specific police practices that are perceived to be fair or unfair).

Although the police legitimacy research has inspired a great deal of legal scholarship, the overwhelming majority of that scholarship has applied the concept to topics other than the regulation of regular police. Scholars have applied the theory to areas as diverse as juvenile justice, e.g. , Janet E. Ainsworth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court , 69 N.C. L. Rev . 1083 (1991), civil dispute resolution, e.g. , Michael Abramowicz, On the Alienability of Legal Claims , 114 Yale L.J. 697 (2005); Donna Shestowsky, How Litigants Evaluate the Characteristics of Legal Procedures: A Multi-Court Empirical Study , 49 U.C. Davis L. Rev . 793 (2016); Lawrence B. Solum, Procedural Justice , 78 S . Cal. L. Rev. 181 (2004), other areas of criminal justice, e.g. , Russell M. Gold, Beyond the Judicial Fourth Amendment: The Prosecutor’s Role , 47 U.C. Davis L. Rev . 1591 (2014) (on prosecutors); Michael M. O’Hear, Plea Bargaining and Procedural Justice , 42 Ga. L. Rev. 407 (2008) (on plea bargaining); Elizabeth Ingriselli, Note, Mitigating Jurors’ Racial Biases: The Effects of Content and Timing of Jury Instructions , 124 Yale L.J. 1690 (2015) (on jury instructions), to national security, e.g. , Aziz Z. Huq, The Social Production of National Security , 98 Cornell L. Rev. 637, 693-96 (2013); Jenny S. Martinez, Process and Substance in the “War on Terror , ” 108 Colum. L. Rev . 1013 (2008), and to other legal contexts and areas of the law, e.g. , Bernadette Atuahene, The Importance of Conversation in Transitional Justice: A Study of Land Restitution in South Africa , 39 Law & Soc. Inquiry 902 (2014) (applying procedural justice to transitional justice); Ellen Berrey, Steve G. Hoffman & Laura Beth Nielsen, Situated Justice: A Contextual Analysis of Fairness and Inequality in Employment Discrimination Litigation , 46 Law & Soc’y Rev . 1 (2012) (on procedural justice in employment discrimination litigation); Jennifer K. Brooke & Tom R. Tyler, Diversity and Corporate Performance: A Review of the Psychological Literature , 89 N.C. L. Rev . 715 (2011) (on procedural justice in workplace diversity management); Margaret B. Kwoka, Leaking and Legitimacy , 48 U.C. Davis L. Rev . 1387 (2015) (arguing that governmental transparency laws would reduce the threat of mass information leaks); Alexandra D. Lahav, Portraits of Resistance: Lawyer Responses to Unjust Proceedings , 57 UCLA L. Rev . 725 (2010) (on lawyers’ interpretations of procedural justice); Justin Sevier, Popularizing Hearsay , 104 Geo. L.J . 643 (2016) (on the procedural justice rationale for the hearsay rule).

Schulhofer, Tyler & Huq, supra note 53.

Id. at 351.

Id. at 357-59. For more recent, extended discussions of departmental management as internal procedural justice, see Task Force Report, supra note 6, at 10, 14; and Rick Trinkner, Tom R. Tyler & Philip Atiba Goff, Justice from Within: The Relations Between a Procedurally Just Organizational Climate and Police Organizational Efficiency, Endorsement of Democratic Policing, and Officer Well-Being , 22 Psychol. Pub. Pol’y & L . 158 (2016). John Rappaport proposes second-order regulation of police through means other than the courts in part because of the argument against direct regulation of police through law in the police legitimacy literature. John Rappaport, Second-Order Regulation of Law Enforcement , 103 Calif. L. Rev. 205, 240-45 (2015).

Schulhofer, Tyler & Huq, supra note 53, at 364-74. This impulse should be eschewed not only because of civil libertarian concerns, but also because these tactics make people less likely to cooperate with police to aid in local counterterrorism efforts. See Amna Akbar, National Security’s Broken Windows , 62 UCLA L. Rev. 834, 890-905 (2015) (urging caution about police strategies to engage American Muslim communities in counterterrorism efforts).

Rachel A. Harmon, The Problem of Policing , 110 Mich. L. Rev . 761, 788-90 (2012) (characterizing the scholarship of Fagan, Harcourt, Meares, Tyler, and others as “non law”).

Tracey L. Meares, The Good Cop: Knowing the Difference Between Lawful or Effective Policing and Rightful Policing—and Why It Matters , 54 Wm. & Mary L. Rev. 1865, 1875-79 (2013) ; Tracey L. Meares & Peter Neyroud, Rightful Policing , New Persp. Policing (Feb. 2015), http:// ‌ http://www.ncjrs.gov/pdffiles1/nij/248411.pdf [http://perma.cc/4QMX-JW3C].

Meares & Neyroud, supra note 96, at 8-11.

See Tracey Meares, Broken Windows, Neighborhoods, and the Legitimacy of Law Enforcement or Why I Fell in and out of Love with Zimbardo , 52 J. Res. Crime & Delinq. 609, 611 (2015) [hereinafter Meares, Broken Windows ] (explaining Meares’s skepticism of broken-windows policing, which she had earlier embraced, and the benefits of the legitimacy model); see also Tracey L. Meares, The Legitimacy of Police Among Young African-American Men , 92 Marq. L. Rev. 651, 653 (2009) [hereinafter Meares, Legitimacy of Police ] (“The form of policing that has the potential to solve the ‘race issue’ emphasizes process rather than outcomes and moral engagement as opposed to notions of criminal deterrence.”).

Bernard E. Harcourt & Tracey L. Meares, Randomization and the Fourth Amendment , 78 U. Chi. L. Rev. 809 (2011); see also Bernard E. Harcourt, Against Prediction: Profiling, Policing, and Punishing in an Actuarial Age 237-39 (2007) (making an ambitious case that randomizing law enforcement is the only way to free it from the bias endemic to predictive or “actuarial” modes of criminal investigation and enforcement).

See United States v. Martinez-Fuerte, 428 U.S. 543, 560 (1976) (“[ I]ndividualized suspicion is usually a prerequisite to a constitutional search or seizure.”).

Meares, supra note 16, at 162; see also Report of Plaintiffs’ Expert Dr. Jeffrey Fagan at 18, Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) (No. 44-5) (describing the racial geography of stop-and-frisk in New York); Jeffrey Fagan & Garth Davies, Street Stops and Broken Windows: Terry , Race, and Disorder in New York City , 28 Fordham Urb. L.J . 457, 461-64 (2000) (same); Jeffrey Fagan & Amanda Geller, Following the Script: Narratives of Suspicion in Terry Stops in Street Policing , 82 U. Chi. L. Rev. 51, 68 (2015) (showing that police officers use group-based rather than only individual-based justifications for suspicion). For a similar argument that is not based on police legitimacy theory, see Akhil Reed Amar, Fourth Amendment First Principles , 107 Harv. L. Rev. 757, 808 (1994) (“Even if racially disparate impact alone does not violate the Constitution, surely equal protection principles call for concern when blacks bear the brunt of a government search or seizure policy. Thus, in a variety of search and seizure contexts, we must honestly address racially imbalanced effects and ask ourselves whether they are truly reasonable.”). But see Whren v. United States, 517 U.S. 806 (1996) (concluding that selective law enforcement on the basis of race must be addressed using a Fourteenth Amendment equal protection analysis, not via the Fourth Amendment).

Aziz Z. Huq, The Consequences of Disparate Policing: Evaluating Stop-and-Frisk as a Modality of Urban Policing , 100 Minn. L. Rev . (forthcoming 2017), http://papers.ssrn.com/sol3 ‌ /pap ‌ ers ‌ .cfm ?abstract _id=2845540 [http://perma.cc/4ZGT-Q45U].

Report of the National Advisory Commission on Civil Disorders, supra note 51, at 19. Disparate approaches are fundamental to the organization of modern policing. Egon Bittner, The Functions of the Police in Modern Society 10 (1970) (“As is well known, the preferred targets of special police concern are some ethnic and racial minorities, the poor living in urban slums, and young people in general . .  . . [ T]his kind of reasoning was basic to the very creation of the police; for it was not assumed initially that the police would enforce laws in the broad sense, but that they would concentrate on the control of individual and collective tendencies towards transgression and disorder issuing from what were referred to as the ‘dangerous classes.’”).

William A. Westley, Violence and the Police , 59 Am. J. Soc . 34, 40 (1953).

Peter Moskos, Cop in the Hood 53 (2008) (describing Baltimore police officers’ critiques of particular “cultures” rather than races); cf. Eduardo Bonilla-Silva, Racism Without Racists: Color-Blind Racism and the Persistence of Racial Inequality in the United States 87-90 (4th ed. 2014) (describing coded language that some whites use to describe negative interactions with blacks); Ian F. Haney López, Post-Racial Racism: Racial Stratification and Mass Incarceration in the Age of Obama , 98 Calif. L. Rev . 1023, 1063-64 (2010) (arguing that references to alleged cultures of criminality serve as a proxy for overt racist language in the era of “colorblindness”).

See, e.g. , Mariano Delle Donne, Procedural Justice: How a Simple Concept Can Help Cops Make a Big Impact , PoliceOne.com (May 6, 2016), http://www.policeone.com/patrol-issues ‌ /articles ‌ /178689006-Procedural-justice-How-a-simple-concept-can-help-cops-make-a-big -impact [http://perma.cc/G57E-ZF33]; Sedevic, supra note 18.

See, e.g. , Tyler et al., supra note 45, at 77 (“A focus on building legitimacy via procedural justice is surely not the whole of effective policing, but it is an important component and one that offers the possibility of making improvements that are both affordable and manageable by the police.”).

See Wesley G. Skogan, Maarten Van Craen & Cari Hennessy, Training Police for Procedural Justice , 11 J. Experimental Criminology 319 (2015) (offering a positive evaluation of a Chicago police training program based largely on insights from legitimacy theory); see also Task Force Report , supra note 6, at 17, 20-21, 34, 46, 67.

See Tyler et al. , supra note 45, at 77.

See, e.g. , Epp, M aynard-Moody & Haider-Markel , supra note 60, at 4-5; Paul Butler, The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform , 104 Geo. L.J. 1419, 1468 (2016) (“The problem with reform that is focused on improving perceptions about the police is that it can cloak aggressive policing in enhanced legitimacy, and it has the potential to blunt the momentum for rising up against overcriminalization, wealth inequality, and white supremacy.”); Robert MacCoun, Voice, Control, and Belonging: The Double-Edged Sword of Procedural Fairness , 1 Ann. Rev. L. & Soc. Sci . 171, 189 (2005) (“In the procedural justice domain, the concern is that authorities can use the appearance of fair procedure (dignity, respect, voice) as an inexpensive way to coopt citizens and distract them from outcomes that by normative criteria might be considered substantively unfair or biased.”); William J. Stuntz, Local Policing After the Terror , 111 Yale L.J . 2137, 2174 (2002) (“If Tyler’s claims are even partly true, the police could simultaneously increase the number of Terry stops, decrease the injury those stops cause, and substantially reduce complaints of police discrimination—all without changing the way they select search targets.”). From a Gramscian perspective, procedural justice might be part of a politically hegemonic discourse that assures public consent to domination. See Gramsci, supra note 84, at 137.

See, e.g. , United States v. Drayton, 536 U.S. 194, 203-04 (2002) (ruling that a search was voluntary in part because the officer spoke in a “polite, quiet voice”); Florida v. Royer, 460 U.S. 491, 531 (1983) (Rehnquist, J., dissenting) (arguing that a search was voluntary in part because “[ t]here were neither threats nor any show of force,” “[t]he detectives did not touch [defendant] and made no demands,” and “the detectives were quite polite”); United States v. Hughes, 640 F.3d 428, 437 (1st Cir. 2011) (“The troopers were polite and never hectored the defendant or raised their voices. Details such as these are entitled to some weight in determining whether a particular interrogation was custodial.”); Lopera v. Town of Coventry, 640 F.3d 388, 407-08 (1st Cir. 2011) (Thompson, J., dissenting) (“[ T]he fact that the officers were polite, particularly given all else that was occurring at the highly charged scene, does not establish that [the defendant] was not coerced . . . . [ S]ubtle and polite coercion is just as objectionable as more obvious browbeating.”); United States v. Kim, 27 F.3d 947, 965-66 (3d Cir. 1994) (“Although the tone of the officer’s voice is relevant to the extent that a forceful tone of voice may make a reasonable person think that they must comply with the officer’s requests . . . the lack of such a forceful tone does not entirely deprive blunt and direct questions of their coercive force.”); United States v. Munoz, 987 F. Supp. 2d 438, 447 (S.D.N.Y. 2013) (“The police officers’ polite treatment does not outweigh the coercive effect of a false promise that a warrant would issue, particularly when coupled with the threat of arrest.”).

See Jeremy Bentham, The Book of Fallacies 350 (Philip Schofield ed., 2015) (1824) (“A sham security is a great deal worse than none: a consciousness of insecurity keeps suspicion and vigilance alive: a sham security, according to the extent to which it is accepted as real, relaxes suspicion or destroys it.”).

See supra text accompanying notes 76-78.

Émile Durkheim, The Division of Labor in Society 102 (W.D. Halls trans., 2014) (1893).

Id. at 88-91; cf. Foucault, supra note 16, at 138 (describing the project of modern criminal justice as bodily discipline).

Durkheim , supra note 114, at 90.

Robert K. Merton, Social Theory and Social Structure 216 (1957).

See Bernard E. Harcourt, Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style , 97 Mich. L. Rev . 291, 347-68 (1998) (critiquing the use of Durkheim to support order-maintenance policing among law-and-social-norms scholars and proposing a Foucauldian bodily control perspective).

Sampson & Bartusch, supra note 9, at 777.

Id. at 778.

See Émile Durkheim, Suicide: A Study in Sociology 246-58 (George Simpson ed., John A. Spaulding & George Simpson trans., Free Press 1951) (1897). Merton refined this conception of anomie. He saw anomie arising from “strain,” the increasing growth of society’s goals and the inability of society to provide to everyone the means necessary to achieve those goals. Merton, supra note 117, at 211. This definition fits well with the problem of racialized and class-located anomie and disobedience of the law that concerns many scholars and lawmakers today.

Liminality is a state of being in-between, not fully inside a particular institution or cultural milieu, but not fully detached from it. See Victor Turner, The Forest of Symbols: Aspects of Ndembu Ritual 93-94 (1967) ; Arnold Van Gennep, The Rites of Passage 11 (Monika B. Vizedom & Gabrielle L. Caffee trans., Univ. of Chi. Press 1960). It is worth nothing that Van Gennep was a sharp critic of Durkheim, though the critique focused more on Durkheim’s use of data and not on basic concepts like anomie. See Bjørn Thomassen, Emile Durkheim Between Gabriel Tarde and Arnold van Gennep: Founding Moments of Sociology and Anthropology , 24 Soc. Anthropology 231, 238-40 (2012). For examples of scholarship applying the concept of liminality in studies of marginal groups in the United States, see Khiara M. Bridges, An Anthropological Meditation on Ex Parte Anonymous - A Judicial Bypass Procedure for an Adolescent’s Abortion , 94 Calif. L. Rev . 215, 223-24 & n.39 (2006); Jennifer Chacón, Producing Liminal Legality , 92 Denv. U. L. Rev . 709, 713-18 (2015); Cecilia Menjívar, Liminal Legality: Salvadoran and Guatemalan Immigrants’ Lives in the United States , 111 Am . J. Soc. 999, 1007 (2006); and Priscilla Ocen, ( E)Racing Childhood: Examining the Racialized Construction of Childhood and Innocence in the Treatment of Sexually Exploited Minors , 62 UCLA L. Rev . 1586, 1596-1600 (2015).

Elijah Anderson, Code of the Street 34 (1999).

See Robert K. Merton, Social Structure and Anomie , 3 Am. Soc. Rev . 672, 672 (1938) (arguing that anomie is not only the product of wayward human impulses with an insufficient amount of legal constraint, but that law and the social structure itself can “exert a definite pressure” on people, producing anomie and deviant behavior).

However, an increasing body of research on legal legitimacy focuses specifically on communities that are generally understood to be high in legal cynicism. Compare Sampson & Bartusch, supra note 9, at 780-81 (discussing research on black and inner-city populations), with Victor M. Rios, Punished: Policing the Lives of Black and Latino Boys (2011) (discussing the interactions between law enforcement institutions and young black and Latino men in Oakland).

See Robert J. Sampson, Great American City 365-67 (2012); Kirk & Papachristos, supra note 9; see also Jacinta M. Gau, Procedural Justice, Police Legitimacy, and Legal Cynicism: A Test for Mediation Effects , 16 Police Prac. & Res. 402 (2015) (analyzing links between legitimacy and cynicism) ; Neil Gross, A Pragmatist Theory of Social Mechanisms , 74 Am. Soc. Rev. 358, 373-74 (2009) (examining the role of social mechanisms in cultural analysis); Alex R. Piquero et al., Developmental Trajectories of Legal Socialization Among Serious Adolescent Offenders , 96 J. Crim. L. & Criminology 267, 270-72 (2005) (discussing legal socialization and legitimation of the law among adolescent offenders).

Eminent political scientist Michael Dawson has offered the most widely known articulation of this idea. See, e.g. , Michael Dawson, Behind the Mule: Race and Class in African American Politics 57 (1994).

See Sampson & Bartusch, supra note 9, at 784 (“One can be highly intolerant of crime, but live in a disadvantaged context bereft of legal sanctions and perceived justice.”).

See, e.g. , Bell, supra note 42, at 316 (describing “‘mothers’ narratives of occasional police reliance, despite their overarching distrust”) ; Forrest Stuart, Becoming “Copwise”: Policing, Culture, and the Collateral Consequences of Street-Level Criminalization , 50 Law & Soc’y Rev . 279, 292-93 (2016) (describing Skid Row residents’ strategies for understanding unpredictable police actions by learning to “see like a cop”).

See Brooks, supra note 57, at 1224 & n.20; Ta-Nehisi Coates, The Near Certainty of Anti-Police Violence , Atlantic (July 12, 2016), http://www.theatlantic.com ‌ /politics ‌ /archive ‌ /2016 ‌ /07 ‌ /the ‌ -near-certainty-of-anti-police-violence/490541 [ http://perma.cc/QZ87-XBY3 ] (“In the black community, it’s the force they deploy, and not any higher American ideal, that gives police their power . .  . . [ I]f the law represents nothing but the greatest force, then it really is indistinguishable from any other street gang.”); Kay Levine & Virginia Mellema, Strategizing the Street: How Law Matters in the Lives of Women in the Street-Level Drug Economy , 26 Law & Soc. Inquiry 169, 184 (2001); see also David K. Shipler, Living Under Suspicion , N.Y. Times (Feb. 7, 1997), http://www.nytimes.com/1997/02/07/opinion/living-under-suspicion.html [http://perma.cc/9GWC-RLJR] (explaining contrasting reactions by race on the outcome of the O.J. Simpson trial).

One could argue that some of the de-emphasized aspects of Tyler and collaborators’ legitimacy theory, the ideas of motive-based trust or “normative alignment” (“a sense that police officers’ sense of right and wrong mirrors that of the communities they work in”), account for these concerns about protection and threat. Jonathan Jackson & Jacinta M. Gau, Carving Up Concepts? Differentiating Between Trust and Legitimacy in Public Attitudes Towards Legal Authority , in Interdisciplinary Perspectives on Trust 49, 57 (Ellie Shockley et al. eds ., 2016). Yet even if space can be found in legitimacy theory for these concerns, they are not central to the theory in the way they are to legal estrangement theory.

See Bell, supra note 42, at 326-29.

I do not claim that these theories are free of overlap, in certain respects. Yet that they are related to each other does not mean they are equivalent. For example, the primary analytical focus of legitimacy theory is individual compliance with the law, while the primary analytical focus of legal estrangement theory is a collective, cultural relationship with the law. Yet legitimacy theorists attempt to deal with the problem of collectivity by aggregating individual views (an approach that is antithetical to the way many sociologists think about culture). In contrast, legal estrangement recognizes that culture exists both within and outside individuals, and that in order to understand macro-level reality, one must have some vision of micro-level reality. Steven Lukes, Introduction to Emile Durkheim, The Rules of Sociological Method xvi (Steven Lukes ed., 2013, W. D. Halls trans., 1982) (2d ed. 1901) (“Every, macro-theory presupposes . . . a micro-theory to back up its explanations.”). For this reason, procedural injustice on an interactional level is important to the development of a collective culture of legal cynicism. Yet simply because procedural injustice contributes to legal estrangement does not mean that procedural justice alone can dismantle legal estrangement, because culture is both individual and superindividual.

One way in which the current scholarship on distrust in the law falls short is that it presents a limited view of what some scholars refer to as legal socialization —the developmental process through which people gain their perceptions of the law and law enforcement over time. Some scholars have probed legal socialization as a central concept; others omit that specific term but catalogue various pathways toward divergent perspectives on the police and law enforcement. See, e.g. , Jeffrey Fagan & Tom R. Tyler, Legal Socialization of Children and Adolescents , 18 Soc. Just. Res . 217, 221 (2005); June Louin Tapp & Felice J. Levine, Legal Socialization: Strategies for an Ethical Legality , 27 Stan. L. Rev . 1 (1974); Rick Trinkner & Ellen S. Cohn, Putting the “Social” Back in Legal Socialization: Procedural Justice, Legitimacy, and Cynicism in Legal and Nonlegal Authorities , 38 Law & Hum. Behav. 602 (2014); see also Rios, supra note 126 at xiv, 158-59 (2011) (describing the legal socialization process of young men of color as “hypercriminalization”).

Hearing Their Voices: Understanding the Freddie Gray Uprising is an in-depth interview study of sixty-four young people, aged fifteen to twenty-four, who live within the city of Baltimore, Maryland. The study, funded in part by the Annie E. Casey Foundation, seeks to develop an in-depth understanding of how youth in the city perceive the death of Freddie Gray and its aftermath and to capture their recollections and perceptions of police and the criminal justice system. The study, which the author of this Essay designed and managed, used multiple recruitment strategies including random sampling in a neighborhood near the heart of the unrest, ethnographic sampling from spending time in key neighborhood venues, and sampling using participatory action research, a method in which people from the study population (here, youth who live in Baltimore) acted as co-researchers with the professional researchers. The purpose of using these strategies was to purposively construct a heterogeneous yet analytically meaningful sample of Baltimore youth and to gain a richer empathetic understanding of their experiences. See, e.g. , Jacques M. Chevalier & Daniel J. Buckles, Participatory Action Research: Theory and Methods for Engaged Inquiry 1-6 (2013); see also 1 Weber, supra note 77, at 5 (“Empathic or appreciative accuracy is attained when, through sympathetic participation, we can adequately grasp the emotional context in which the action took place.”). This Essay draws upon selected cases within the interview sample to clarify key processes derived from theory. These cases are not intended to be representative of all respondents, but are instead used to illustrate theoretical points, drawing inspiration from case study logic and the qualitative research method of portraiture. See Sara Lawrence-Lightfoot & Jessica Hoffmann Davis, The Art and Science of Portraiture (1997); Mario Luis Small, “How Many Cases Do I Need? ”: On Science and the Logic of Case Selection in Field-Based Research , 10 Ethnography 5, 24-27 (2009).

All names of respondents are pseudonyms.

I have described complexity and contextual contingency of police trust and reliance in other work. See generally Bell , supra note 42 .

All quotations attributed to Shawna were recorded during an interview conducted by the author and Janice Bonsu on July 1, 2015.

Cf. Solomon M. Hsiang, Marshall Burke & Edward Miguel, Quantifying the Influence of Climate on Human Conflict , 341 Sci. 1212, 1235 (2013) (finding that warmer temperatures increase conflict).

See, e.g. , Alisa Ames et al., 2011 Neighborhood Health Profile: Sandtown-Winchester/Harlem Park , Balt. City Health Dep’t 10-11 (Dec. 2011), http://health.baltimorecity.gov ‌ /sites ‌ /default ‌ /files/47%20Sandtown.pdf [http://perma.cc/3E6E-TZXT] (documenting low life expectancy and high mortality in certain Baltimore neighborhoods).

Cf. Florida v. J.L., 529 U.S. 266, 276 (2000) (Kennedy, J., concurring) (explaining that “the ability of the police to trace the identity of anonymous telephone informants” is important for determining whether an anonymous tip is sufficiently reliable to justify a Terry stop).

See, e.g. , Sarah Larimer, Disgraced Ex-Cop Daniel Holtzclaw Sentenced to 263 Years for On-Duty Rapes, Sexual Assaults , Wash . Post (Jan. 22, 2016), http://www.washingtonpost.com/news ‌ /post-nation ‌ /wp/2016/01/21/disgraced-ex-officer-daniel-holtzclaw-to-be-sentenced-after -sex ‌ -crimes-conviction [http://perma.cc/5JXK-EUM9].

In an Alford plea, defendants maintain their innocence but concede that the prosecution has enough evidence that a judge or jury would likely find them guilty. See North Carolina v. Alford, 400 U.S. 25, 37-38 (1970).

Melissa Harris, Officer Accused in Sex Case Is To Resign: Prison Term Suspended in Case Involving Girl, 16 , Balt. Sun (Jan. 11, 2008), http://articles.baltimoresun.com/2008-01-11/news ‌ /0 ‌ 8 ‌ 0 ‌ 1110107_1_welch-missing-evidence-baltimore-county [http://perma.cc/79CN-KBEP].

Julie Bykowicz, Items Missing in Rape Case ; Defense Seeks To Exclude DNA in Trial for Officer Accused of Assault , Balt. Sun (July 17, 2007), http://articles.baltimoresun.com/2007 -07-17 ‌ /news ‌ /0707170088_1_welch-evidence-control-baltimore-police-department [http:// ‌ perma.cc ‌ /5NGD-ZSDY].

Harris, supra note 146.

E.g. , Julie Bykowicz, Jones’ Rape Case Ends: City ‘Flex’ Officer Won’t Face Trial Other Issues Pending , Balt. Sun (Apr. 3, 2007), http://articles.baltimoresun.com/2007-04-03/news ‌ /070 ‌ 4 ‌ 03 ‌ 0038_1_jones-police-officer-flex [http://perma.cc/U7UF-JTS4] (describing charges against former Baltimore police officer Jemini Jones); Gadi Dechter, Former City Officer Charged with Rape , Balt. Sun (Aug. 3, 2008), http://articles.baltimoresun.com/2008-08 -03/news/0808020193_1_welch-baltimore-police-misconduct-in-office [http:// ‌ perma.cc ‌ /4GBJ ‌ -9A6A] (describing accusations against former Baltimore police officer Rohan Mays).

The third floor of Mondawmin is essentially a social services center, a transition that began in the late 1960s after white flight from the neighborhood and the loss of the mall’s anchor store, Sears. Among the mall’s tenants are a city-run one-stop career center, an outpatient mental health clinic, a healthcare clinic, and a branch of Baltimore City Department of Social Services that helps adults avoid crises like eviction, electricity shutoff, and mental collapses. See Directory , Mondawmin Mall , http://www.mondawmin.com/en/directory/map.html [http:// ‌ perma.cc/CXH2-W2NS].

For scholarship describing the increasing prevalence of private police in American society, see Elizabeth E. Joh, The Paradox of Private Policing , 95 J. Crim. L. & Criminology 49 (2004); and David Alan Sklansky, Private Police and Democracy , 43 Am. Crim. L. Rev . 89 (2006). For people who frequently encounter public and private police, the officers may well blend into one miasma of police control, regardless of their governance structure. This indistinguishableness could mean that the bad acts of poorly trained, less regulated private security officers contribute to negative perceptions of city police, and further research should test this hypothesis.

See, e.g. , I. Bennett Capers, Policing, Race, and Place , 44 Harv. C.R.-C.L. L. Rev . 43, 68-69 (2009) (noting the stigmatic harm of minor police maltreatment); Fryer, supra note 59, at 3, 8 (describing the study’s data, which ranks the use of hands—such as slapping or grabbing—as a “lower level use[ ] of force”). This limited conception of use of force also plagues governmental agencies tasked with investigating police misconduct. For example, in October 2016, police officers in Edina, Minnesota (a suburb of Minneapolis) arrested Larnie Thomas, an African American man, for “disorderly conduct and failure to obey a traffic signal.” Christine Hauser, Black Man Is Arrested While Walking, and Minnesota City Starts a ‘Conversation , ’ N.Y. Times (Oct. 19, 2016), http://www.nytimes.com/2016/10/20/us ‌ /minne ‌ sota ‌ -video-walking.html [http://perma.cc/2WFM-EUHE]. The officer initially on the scene, Tim Olson, confronted Thomas and grabbed him by his shoulder for walking on the white line near the shoulder of the road even though the sidewalk was closed for construction. Id. The city concluded that Olson “had followed proper procedures” when he arrested Thomas. Id. The State of Minnesota’s Bureau of Criminal Apprehension, a bureau of the Minnesota Department of Public Safety, chose not to investigate the arrest because it did not result in “a death or serious injury.” Id. The Bureau’s decision did not acknowledge the social meaning of the incident—perhaps the deeper injury.

See Manny Fernandez, Freddie Gray’s Injury and the Police ‘Rough Ride , ’ N.Y. Times (Apr. 30, 2015), http://www.nytimes.com/2015/05/01/us/freddie-grays-injury-and-the-police-rough ‌ -ride ‌ .html [http://perma.cc/ZH8V-P79A] (describing the practice of “rough rides” and “nickel rides,” during which police subject often-unsecured passengers detained in the back of police vans to intentionally rough rides to cause displeasure or injury).

There has been much debate over the best term to use when describing the property damage that occurred in Baltimore in the aftermath of Freddie Gray’s death. While most news outlets called the events “riots,” others preferred “uprising” or “unrest.” See, e.g. , Katy Waldman, Is Baltimore Beset by Protests, Riots, or an Uprising ? , Slate (Apr. 29, 2015, 5:01 PM), http://www.slate.com/blogs/lexicon_valley/2015/04/29 ‌ /protest_versus_riot ‌ _versus ‌ _up ‌ rising ‌ _the_language_of_the_baltimore_freddie.html [http://perma.cc/X7DU -JNHV]. I do not take a position on the most accurate term but use “riot” here because it was the preferred language of study participants.

Six officers involved in Freddie Gray’s final arrest were charged with an array of crimes in May 2015, a move that made the State’s Attorney for Baltimore, Marilyn Mosby, a polarizing national figure. Between May and July 2016, three officers were acquitted. On July 27, 2016, after the judge declared a mistrial in a fourth officer’s case, Mosby dropped charges against the three officers who had not already been acquitted. Sarah Almukhtar et al., Freddie Gray Case Ends with No Convictions of Any Police Officers , N.Y. Times (July 27, 2016), http:// ‌ www ‌ .ny ‌ times ‌ .com/interactive/2015/04/30/us/what-happened-freddie -gray ‌ -arr ‌ est ‌ ed ‌ -by-balt ‌ i ‌ more ‌ -police-department-map-timeline.html [http://perma.cc/9E3Y -L294]; Justin Fenton, State’s Attorney Marilyn Mosby Assails Police, Pledges To Pursue Reforms , Balt. Sun (July 27, 2016, 10:41 PM) http://www.baltimoresun.com/news ‌ / maryland ‌ /fred ‌ die ‌ -gray/bs-md-ci-mosby-dropped-charges-20160727-story.html [http:// ‌ perma.cc ‌ /6KQW -MVLB]. While others, including Baltimore’s mayor and former police commissioner, criticized Mosby for continuing to argue that systemic failures plague the Baltimore Police Department when she announced dropping the remaining Freddie Gray charges, the DOJ’s August 2016 report supported Mosby’s assertions. See Civil Rights Div., Investigation of the Baltimore City Police Department , U.S. Dep’t Just. 4 (Aug. 10, 2016) [hereinafter DOJ Baltimore Report ], http://www.justice.gov/opa/file/883366/download [http://perma.cc ‌ /6RNF ‌ -GFXM].

Ben Feuerherd & Bob Fredericks, Obama Calls Baltimore Rioters “Criminals and Thugs , ” N.Y. Post (Apr. 28, 2015, 3:36 PM), http://nypost.com/2015/04/28/obama-calls-baltimore-riot ‌ ers ‌ -criminals-and-thugs [http://perma.cc/ZU5G-8WWB].

Erin Cox & Michael Dresser, Gov. Larry Hogan Promises More than 1,000 Additional Troops, Vows To Prevent Rioting , Balt. Sun (Apr. 28, 2015, 1:52 PM), http:// www ‌ .baltimore ‌ sun ‌ .com/news/maryland/politics/blog/bal-hogan-in-baltimore-vows-to-bring-rioting-under -control-20150428-story.html [http://perma.cc/A7L4-JEZU].

Mark Reutter & Fern Shen, State of Emergency Declared for Baltimore , Balt. Brew (Apr. 27, 2015, 11:17 PM), http://www.baltimorebrew.com/2015/04/27/state-of-emergency-declared -for ‌ -baltimore [http://perma.cc/VQH5-QUWM].

Elizabeth Chuck, Baltimore Mayor Stephanie Rawlings-Blake Under Fire for ‘Space’ To Destroy Comment , NBC News (Apr. 28, 2015, 1:59 PM), http://www.nbcnews.com /storyline ‌ / baltimore ‌ -unrest/mayor-stephanie-rawlings-blake-under-fire-giving-space -destroy-baltimore-n349656 [http://perma.cc/3992-98MK].

See Editorial, The Problem with ‘Thugs , ’ Balt. Sun (Apr. 29, 2015, 3:52 PM), http:// ‌ www ‌ .balt ‌ imoresun.com/news/opinion/editorial/bs-ed-thugs-freddie-gray-20150429-story.html [http://perma.cc/C9WF-VRJS].

David Jackson, Obama Stands by the Term ‘Thugs,’ White House Says , USA Today (Apr. 29, 2015, 2:59 PM), http://www.usatoday.com/story/theoval/2015/04/29/obama-white-house -baltimore-stephanie-rawlings-blake/26585143 [http://perma.cc/YN3M-HH57].

For background information on the Charleston mass killing, see, for example, Matt Ford & Adam Chandler, ‘Hate Crime’: A Mass Killing at a Historic Church , Atlantic (June 19, 2015), http:// ‌ http://www.theatlantic.com/national/archive/2015/06/shooting-emanuel-ame -charleston/396209 [http://perma.cc/6CTW-E3Z5]. The shooter, Dylann Roof, was eventually sentenced to death. See Alan Blinder & Kevin Sack, Dylann Roof Is Sentenced to Death in Charleston Church Massacre , N.Y. Times (Jan. 10, 2017), http://www.nytimes.com ‌ /2017 ‌ /01 ‌ /10 ‌ /us/dylann-roof-trial-charleston.html [http://perma.cc/ZXA4-8X86].

See, e.g. , Todd Sumlin, Charleston Shooting Suspect’s Burger King Meal Gets National Attention , Charlotte Observer (June 24, 2015, 8:51 AM), http://www.charlotteobserver.com ‌ /news ‌ /local ‌ /article25394389.html [http://perma.cc/L7H7-ZB8R]. Withholding food from an arrestee during interrogation can indicate coercion under a totality of the circumstances analysis, thereby invalidating any evidence that police obtain. See Greenwald v. Wisconsin, 390 U.S. 519, 521 (1968); Clewis v. Texas, 386 U.S. 707, 712 (1967); Reck v. Pate, 367 U.S. 433, 441-42 (1961). While some onlookers interpreted this provision of a Burger King meal as a special treat or an indicator of the greater respect they had for Roof’s (white) life, it is worth noting that by providing Roof with a meal, officers also ensured that any evidence obtained from Roof would be admissible in court.

But see Tom R. Tyler & Jonathan Jackson, Popular Legitimacy and the Exercise of Legal Authority: Motivating Compliance, Cooperation, and Engagement , 20 Psychol. Pub. Pol’y & L . 78, 89 (2014) (finding, using survey data, that although African Americans view the police as less legitimate than whites do, they do not see the law as less legitimate than whites do). This finding may stem from a belief that the police do not actually represent the law, that they are just another group or gang. See supra note 131 and accompanying text.

See Kirk & Papachristos, supra note 9, at 1191.

For an overview of a wide variety of literature on the connection between procedural justice and legitimacy, see Tyler et al. , supra note 45, at 86.

Tyler, Procedural Justice , supra note 10, at 350.

All quotations attributed to Justin were recorded during an interview conducted by Janice Bonsu and Trinard Sharpe on July 23, 2015.

It is not surprising that Justin projects his police encounters into views on the government and the powerful more generally. Police officers are the quintessential “street-level bureaucrats,” the faces of abstract systems, whose interactions with citizens are believed to shape their larger view of the government. See Giddens, supra note 63, at 79-88 ; Michael Lipsky, Street-Level Bureaucracy 3 (30th Anniversary ed. 2010).

This respondent’s preference to walk in the street, avoiding proximity to trees out of concern for his safety, is reminiscent of a similar preference among some Chicago high school students that has been documented journalistically. See Harper High School, Part I Transcript , This Am. Life (Feb. 15, 2013), http://www.thisamericanlife.org/radio-archives ‌ /episode ‌ /487 ‌ /transcript [http://perma.cc/3HUN-GWG8] (quoting a student who explained that “we never like to walk past trees and stuff” in order to avoid gangs). One might expect a similar logic to operate among teens in inner-city Baltimore.

Md. Code Ann., Transp. § 21-506 (LexisNexis 2016) requires pedestrians to walk on sidewalks when possible, and on the left shoulder or far left side of a roadway when a sidewalk is unavailable. Failure to comply with this transportation provision is a misdemeanor. Whitt v. Dynan, 315 A.2d 122, 126 (Md. Ct. Spec. App. 1974). The DOJ, in its investigation of the Ferguson, Missouri Police Department pursuant to 42 U.S.C. § 14141, noted that Ferguson police routinely ticketed and fined African Americans for violating a city ordinance that regulates the “Manner of Walking in Roadway,” an offense similar to the one Justin and his friends were committing. Ninety-five percent of the people cited for manner-of-walking violations in Ferguson between 2012 and 2014 were African American. Civil Rights Div. , Investigation of the Ferguson Police Department , U.S. Dep’t Just. 62 (Mar. 4, 2015), http://www ‌ .just ‌ ice ‌ .gov/sites/default/files/opa/press-releases/attachments/2015/03/04 ‌ /ferguson_police ‌ _depar ‌ tment ‌ _report.pdf [http://perma.cc/FF7V-XCCL]. The Justice Department’s Baltimore report roundly criticizes the Baltimore Police Department for criminalizing African Americans’ presence in public spaces, especially streets and sidewalks. See DOJ Baltimore Report , supra note 156, at 6-7. However, it does not mention section 21-506 of the state transportation code as a potential pretext for some walking stops.

See Russell K. Robinson, Perceptual Segregation , 108 Colum. L. Rev . 1093, 1145 (2008) (“[ T]he net psychological impact of making an attribution to discrimination is negative.”).

Justin identified the exercise of power more generally as an aspect of procedurally unjust policing. Research from social psychology suggests that officers who use a disproportionately large amount of force against African American men might be trying to assert their manhood even more than their authority. See L. Song Richardson & Phillip Atiba Goff, Interrogating Racial Violence , 12 Ohio St. J. Crim. L. 115, 128-42 (2014); see also Devon W. Carbado & Patrick Rock, What Exposes African Americans to Police Violence ? , 51 Harv. C.R.-C.L. L. Rev . 159, 175-85 (2016) (summarizing the different types of social and psychological threats police officers might feel, which increase the likelihood of officer violence).

See Rios , supra note 126, at xiv-xv.

Md. Code Ann., Transp. § 21-506.

See Rod K. Brunson & Ronald Weitzer, Negotiating Unwelcome Police Encounters: The Intergenerational Transmission of Conduct Norms , 40 J. Contemp. Ethnography 425, 429 (2011); cf. Tyler & Huo , supra note 8, at 133 (finding that recent personal experience explained thirty percent of the variance in people’s assessments of the legitimacy of law and legal authority); Tyler & Fagan, supra note 8, at 255 (excluding respondents who had zero personal experiences with the police from their analysis); Tyler & Sevier, supra note 44, at 1127 (explaining that only nine percent of their interview sample had recent personal experience with the courts).

See Tyler & Huo , supra note 8, at 29 (“As psychologists, our primary concern is with people’s attitudes, judgments, and feelings, and with the role of these subjective elements in shaping behavior.”); see also Lars Udehn, The Changing Face of Methodological Individualism , 28 Ann. Rev. Soc. 479, 487-88 (2002) (locating “psychologism” in debates over methodological individualism in early American sociology).

See Tyler, supra note 85, at 94 (confirming through survey data that personal experience with the police affects people’s assessments of its legitimacy) ; Tyler & Huo, supra note 8, at 131-38 (showing that personal experiences influence “societal orientations” but without mentioning vicarious experiences).

See, e.g. , Ronald Weitzer & Steven A. Tuch, Race and Policing in America 183-84 (2006) (describing “negativity bias”); Kirk & Papachristos, supra note 9, at 1201 (“Direct experiences with harassing police may influence an individual’s cynicism, but this cynicism becomes cultural through social interaction. In this sense, individuals’ own experiential-based perception of the law becomes solidified through a collective process whereby residents develop a shared meaning of the behavior of the law and the viability of the law to ensure their safety.”).

See Naomi F. Sugie, Chilling Effects: Diminished Political Participation Among Partners of Formerly Incarcerated Men , 62 Soc. Probs . 550 (2015).

Megan Comfort, Doing Time Together: Love and Family in the Shadow of the Prison 65-98 (2008).

E.g. , Ande Nesmith & Ebony Ruhland, Children of Incarcerated Parents: Challenges and Resiliency, in Their Own Words , 30 Child. & Youth Servs. Rev . 1119 (2008). See generally Nell Bernstein, All Alone in the World: Children of the Incarcerated (2005) (offering a journalistic account of the experiences and perspectives of children of incarcerated parents).

Christopher Muller & Daniel Schrage, Mass Imprisonment and Trust in the Law , 651 Annals Am. Acad. Pol. & Soc. Sci . 139, 150 (2014).

There are a few examples in sociological literature. See, e.g. , Rios , supra note 126, at 151-52 ; Nikki Jones, “The Regular Routine”: Proactive Policing and Adolescent Development Among Young, Poor Black Men , 143 New Directions for Child & Adolescent Dev . 33 (2014). Emerging legal scholarship is beginning to recognize this process and explore potential solutions to it. See, e.g. , Huq, supra note 102.

See J.M. Balkin, Cultural Software: A Theory of Ideology 67-73 (1998) (describing memes and processes of cultural transmission); Jeffrey K. Olick & Joyce Robbins, Social Memory Studies: From “Collective Memory” to the Historical Sociology of Mnemonic Practices , 24 Ann. Rev. Soc. 105 (1998).

E.g. , Robert S. Chang, Closing Essay: Developing a Collective Memory To Imagine a Better Future , 49 UCLA L. Rev . 1601 (2002) (arguing that the collective memory of Asian Americans can be deployed to improve constitutional law); Meir Dan-Cohen, Skirmishes on the Temporal Boundaries of States , 72 Law & Contemp. Probs . 95 (2009) (describing how collective memory can inform state conflicts); Katherine M. Franke, The Uses of History in Struggles for Racial Justice: Colonizing the Past and Managing Memory , 47 UCLA L. Rev . 1673 (2000) (articulating challenges for the use of collective memory in the pursuit of racial justice); Mark J. Osiel, Ever Again: Legal Remembrance of Administrative Massacre , 144 U. Pa. L. Rev . 463 (1995) (identifying six problems with states using criminal prosecutions to solidify collective memory of state-sponsored mass-murder); Norman W. Spaulding, Constitution As Countermonument: Federalism, Reconstruction, and the Problem of Collective Memory , 103 Colum. L. Rev . 1992 (2003) (arguing for the relevance of the collective memory of the Civil War and Reconstruction to contemporary federalism jurisprudence).

See, e.g. , Maurice Halbwachs, On Collective Memory 54-83 (Lewis A. Coser ed. & trans., Univ. of Chi. Press 1992) (1952) (describing the collective memory of the family); Michel Anteby & Virág Molnár, Collective Memory Meets Organizational Identity: Remembering To Forget in a Firm’s Rhetorical History , 55 Acad. Mgmt. J . 515 (2012) (analyzing ways of sustaining a firm’s collective identity); Lauren A. Rivera, Managing “Spoiled” National Identity: War, Tourism, and Memory in Croatia , 73 Am. Soc. Rev . 613, 631 (2008) (discussing limitations on collective memory in response to societies’ “difficult pasts”).

See generally Jeffrey C. Alexander et al., Cultural Trauma and Collective Identity (2004) (drawing upon case studies of September 11, American slavery, and the Holocaust to explore group-level traumatic memories).

Reuben A. Buford May, Race Talk and Local Collective Memory Among African American Men in a Neighborhood Tavern , 23 Qualitative Soc . 201, 202 (2000). This form of collective memory might be particularly salient among African Americans. Id. Although the empirical evidence is mixed, some scholars have argued that African Americans are more likely to believe in “common” or “linked” fate, i.e., the idea that their individual success and experience of justice is connected to the success and just treatment of African Americans as a group. See Dawson , supra note 128, at 76; Paula D. McClain et al., Group Membership, Group Identity, and Group Consciousness: Measures of Racial Identity in American Politics ? , 12 Ann. Rev. Pol. Sci . 471, 477-79 (2009). But see Claudine Gay, Jennifer Hochschild & Ariel White, Americans’ Belief in Linked Fate: Does the Measure Capture the Concept ? , 1 J. Race Ethnicity & Pol . 117, 139-40 (2016) (suggesting that either linked fate is no longer as unique to African Americans as once suggested or that the usual instrument used to measure linked fate is insufficient).

To understand the origins and positions of the Black Lives Matter and corresponding police-reform movements, see, for example, Black Lives Matter , http://blacklivesmatter.com [http://perma.cc/QSS4-VXYP]; and Campaign Zero , supra note 59. See also Jocelyn Simonson, Copwatching , 104 Calif. L. Rev . 391 (2016) (conceptualizing organized videotaping of police interactions as an adversarial form of police accountability).

See Jenna Wortham, Racism’s Psychological Toll , N.Y. Times Mag . (June 24, 2015), http:// ‌ http://www.nytimes.com/2015/06/24/magazine/racisms-psychological-toll.html [http:// ‌ perma.cc ‌ /M8FW-GT4V].

See Weitzer & Tuch, supra note 180, at 183-84 (finding that mass media coverage of police deviance alters citizens’ perceptions of the police and noting that media influence on citizens’ perceptions of the police has received little scholarly attention).

See Balkin, supra note 186, at 43 (explaining that the “building blocks” of culture are transmitted “either face to face or through media of communication like writing, television, or the Internet”); Buford May, supra note 190, at 202.

Cf. Tyler & Wakslak, supra note 85, at 261-62 (finding an association between the belief that racial profiling is more prevalent and the tendency to interpret personal interactions with the police as examples of profiling).

See Swidler, supra note 135, at 278-80 (explaining that culture is more likely to drive human behavior during periods of social transformation when prescribed social rituals are less clear); cf. Durkheim, supra note 122, at 246-59 (describing anomie as a problem of cultural instability); Mark Anthony Hoffman & Peter S. Bearman, Bringing Anomie Back in: Exceptional Events and Excess Suicide , 2 Soc. Sci. 186, 187, 190-92 (2015) (same).

All quotations attributed to Jamila were recorded during an interview conducted by the author and Janice Bonsu on June 17, 2015.

The McCulloh Homes, erected in the mid-1930s, was one of Baltimore’s first public housing developments intended to house solely African American residents. The Housing Authority’s intent was to erect “a splendid barrier against the encroachment of colored” residents into the nearby predominantly white Bolton Hill neighborhood. See Plaintiffs’ Statement of Material Facts Submitted in Support of Their Pre-Trial Memorandum at 37-41, Thompson v. U.S. Dep’t of Hous. & Urban Dev., 348 F. Supp. 2d 398 (N.D. Md. 2005) (No. CIV. A. MJG-95-309), http://www.aclumd.org/uploaded_files/0000/0169/statementoffacts.pdf [ http:// ‌ perma.cc/8U8Y-2VGJ] .

See, e.g. , Matthew Desmond, Eviction and the Reproduction of Urban Poverty , 118 Am . J. Soc . 88, 107 (2012); Steven M. Graves, Landscapes of Predation, Landscapes of Neglect: A Location Analysis of Payday Lenders and Banks , 55 Prof. Geographer 303, 311 (2003); Rhonda Jones-Webb et al., Alcohol and Malt Liquor Availability and Promotion and Homicide in Inner Cities , 43 Substance Use & Misuse 159, 160 (2008).

It is not clear whether there has been an actual shift in the average age of Baltimore police officers in the eight years since Jamila was ten. However, some police leaders claim that police officers have become, on average, younger and newer to the force and thus have a more “millennial” approach to policing. Zoe Mentel, Racial Reconciliation, Truth-Telling, and Police Legitimacy , U.S. Dep’t Just. 10-11 (2012), http://nnscommunities.org/uploads/Racial-Re ‌ con ‌ ciliation_Truth-Telling_and-Legitimacy.pdf [http://perma.cc/XEL2-A3ES].

Jamila’s insight here is reminiscent of the Massachusetts Supreme Judicial Court’s in 2016. See infra text accompanying notes 322-324.

To some degree, this way of thinking could be attributable to the human brain’s tendency to recall negative information longer and more vividly than positive information. See, e.g. , Roy F. Baumeister et al., Bad Is Stronger than Good , 5 Rev. Gen. Psychol . 323, 323-24 (2001).

All quotations attributed to Myron were recorded during an interview conducted by Kaitlin Edin-Nelson and Geena St. Andrew on August 4, 2015.

All quotations attributed to Johnson were recorded during an interview conducted by Geena St. Andrew and Juliana Wittman on August 4, 2015.

Silentó , Watch Me (Whip/Nae Nae) , YouTube ( June 15, 2015), http://www.youtube.com ‌ / watch ‌ ?v =vjW8wmF5VWc [ http://perma.cc/QV7D-MS4Q] .

See, e.g. , Katie Mettler, Tampa Police Officers ‘Whip’ and ‘Nae Nae’ with Sulphur Springs Youth on Halloween , Tampa Bay Times: Bay Buzz (Nov. 2, 2015, 11:14 AM), http://www ‌ .tam pa ‌ bay.com/blogs/baybuzz/tampa-police-officers-whip-and-nae-nae-with-sulphur-springs -youth ‌ -on/2252272 [http://perma.cc/EE58-MQ6Y]; Perry Stein, A D.C. Cop Tried To Break up a Group of Teens. It Ended in This Impressive Dance-Off , Wash. Post (Oct. 28, 2015), http:// ‌ http://www.washingtonpost.com/news/local/wp/2015/10/28/a-d-c-cop-tried-to -break ‌ -up-a-group-of-teens-it-ended-in-this-impressive-dance-off [http://perma.cc/7NVV -58G5]; Lyndsay Winkley, Watch Officer Whip, Whip, Then Watch Him Nae Nae , San Diego Union-Trib. (Oct. 7, 2015), http://www.sandiegouniontribune.com/sdut-police -officer-whip ‌ -nae-nae-facebook-video-2015oct07-htmlstory.html [http://perma.cc/S847 -GDQ8].

For example, Jeff Fagan and Tom Tyler find that most contextual variables, including having deviant peers, are not associated with adolescents’ assessments of legal legitimacy. Fagan & Tyler, supra note 136, at 231-33. However, the survey and analytical method used by Fagan and Tyler provides a quite limited way of understanding how networks produce perceptions of the law and law enforcement officials.

Baumeister et al., supra note 202, at 323.

See, e.g. , Brunson & Weitzer, supra note 177, at 426.

E.g. , Balkin , supra note 186, at 67-73 (on memes); Halbwachs, supra note 188, at 54-83 (on family).

E.g. , Peter L. Berger & Thomas Luckmann, The Social Construction of Reality (1966).

Some scholars understand unequal distribution of policing quality as a Rawlsian distributive justice problem. See Nirej S. Sekhon, Redistributive Policing , 101 J. Crim. L. & Criminology 1171 (2012).

Cf. Eduardo Bonilla-Silva, Rethinking Racism: Toward a Structural Interpretation , 62 Am . Soc. Rev. 465, 475 (1997) (arguing that one advantage of a structural framework for studying race issues is that “[ r]acial phenomena are regarded as a ‘normal’ outcome of the racial structure of a society”).

See, e.g ., Bonilla-Silva, supra note 105, at 170-72 (arguing that colorblind ideology indirectly affects many African Americans’ explanations of social problems and policy perspectives even as they tend to perceive discrimination more readily than whites do); Matthew Desmond, Evicted: Poverty and Profit in the American City 179-82 & 179 n.2 (2016) (explaining that many poor people do not organize against inequality because, in line with the dominant cultural perspective on the causes of poverty, “[n]o one thought the poor more undeserving than the poor themselves”); Russell K. Robinson, Perceptual Segregation , 108 Colum. L. Rev. 1093, 1142-46 (2008) (citing a large body of social psychology research to explain that social “outsiders,” such as women and racial/ethnic minorities, “tend to avoid attributing adverse treatment to discrimination unless such attributions are very difficult to avoid”).

See 1 Weber, supra note 77, at 43-46, 339-48; 2 Max Weber, Economy and Society: An Outline of Interpretive Sociology 926-55 (Guenther Roth & Claus Wittich eds ., Ephraim Fischoff et al. trans., Univ. of Cal. Press 1978) (1922); Frank Parkin, Strategies of Social Closure in Class Formation , in The Social Analysis of Class Structure 1 (Frank Parkin ed., 1974).

Several scholars and commentators have noted the paradox of overpolicing and underprotection in racially and socioeconomically marginalized communities. E.g. , Jill Leovy, Ghettoside 9 (2015) (“[ O]ur criminal justice system . . . is at once oppressive and inadequate.”); Haney López, supra note 105, at 1054; Natapoff, supra note 55, at 1718-19.

See Loïc Wacquant, A Janus-Faced Institution of Ethnoracial Closure: A Sociological Specification of the Ghetto , in The Ghetto: Contemporary Global Issues and Controversies 1, 2 (Ray Hutchison & Bruce D. Haynes eds ., 2012) (describing racially and socioeconomically marginalized neighborhoods as the product of a relational “power asymmetry”).

See, e.g. , Anderson, supra note 124, at 34; Philippe Bourgois , In Search of Respect 109-13 (2d ed. 2003); Alice Goffman, On the Run 2 (2014); Randall Kennedy, Race, Crime, and the Law 29-75 (1997); Sudhir Alladi Venkatesh, Off the Books: The Underground Economy of the Urban Poor 280 (2006) (“Though life on the street was changing in many worrying ways, one thing remained consistent. For nearly a century, black Chicagoans had never been able to rely on law enforcement, be it for gang- or nongang-related problems.”).

See, e.g. , Donald Black, Crime as Social Control , 48 Am . Soc. Rev. 34, 36 (1983) (describing homicide as private capital punishment); Kirk & Papachristos, supra note 9, at 1203-04; Daryl J. Levinson, Collective Sanctions , 56 Stan. L. Rev. 345, 386 (2003).

Sudhir Alladi Venkatesh, American Project: The Rise and Fall of a Modern Ghetto 77-83 (2000).

See Sudhir Alladi Venkatesh & Steven Levitt, “Are We a Family or a Business?” History and Disjuncture in the Urban American Street Gang , 29 Theory & Soc’y 427 (2000) (describing the metamorphosis of Chicago street gangs from primarily social groups that committed petty crimes to primarily criminal financial enterprises).

Venkatesh , supra note 218, at 177-87 (describing the relationship between one Chicago street and the neighborhood it controlled).

Id. at 125-47.

The era of proactive policing is relatively young, really beginning with the advent of broken-windows policing in the early 1980s. See Kelling & Wilson, supra note 36; see also Meares, Broken Windows , supra note 98 (discussing the effectiveness of broken-windows policing).

See, e.g. , Kennedy, supra note 218 , at 29-75; Alice Goffman, On the Run: Wanted Men in a Philadelphia Ghetto , 74 Am. Soc. Rev . 339, 340-41 (2009).

Michael Javen Fortner, Black Silent Majority 7-9 (2015).

See, e.g. , President’s Comm’n on Law Enf’t & Admin. of Justice, The Challenge of Crime in a Free Society 25-26, 106 (1967); Tracey L. Meares & Bernard E. Harcourt, Foreword: Transparent Adjudication and Social Science Research in Constitutional Criminal Procedure , 90 J. Crim. L. & Criminology 733, 773 (2000).

E.g. , Garland , supra note 16, at 114-15 ; Albert J. Reiss, Jr., Police Organization in the Twentieth Century , 15 Crime & Just . 51, 58 (1992).

See Alexander , supra note 3, at 188-89; Fortner , supra note 226, at 258-60; James Forman, Jr., Racial Critiques of Mass Incarceration: Beyond the New Jim Crow , 87 N.Y.U. L. Rev. 21, 35-36 (2012).

Radley Balko, Rise of the Warrior Cop 157 (2013) ; Peter B. Kraska & Victor E. Kappeler, Militarizing American Police: The Rise and Normalization of Paramilitary Units , 44 Soc. Probs . 1, 6-9 (1997).

See Fagan & Geller, supra note 101, at 79-81 (arguing that, between 1998 and 2011, New York City police officers began forming suspicion based on neighborhood characteristics rather than making individualized assessments based on suspects’ behavior); Meares, supra note 16, at 162 (arguing that Terry concerned a stop based on suspicion of an individual, as opposed to stops based on generalized suspicion, as part of a “program” to regulate young African American and Latino men).

E.g. , Anderson , supra note 124, at 47; Goffman, supra note 218, at 175.

Patrick J. Carr, Laura Napolitano & Jessica Keating, We Never Call the Cops and Here Is Why: A Qualitative Examination of Legal Cynicism in Three Philadelphia Neighborhoods , 45 Criminology 445, 461-63 (2007).

See also Carol Steiker, More Wrong than Rights , in Tracey L. Meares & Dan M. Kahan, Urgent Times: Policing and Rights in Inner-City Communities 49, 51 (1999) (analogizing the conditions of inner-city residents who supported order-maintenance policing in the 1990s to a swimmer drowning in the sea: “In dire straits, and with limited options, [inner-city residents] will grasp at any rope, no matter how steep the price.”). Pierre Bourdieu encapsulated this idea in his concept of habitus , the idea that while individuals have agency in thought and action, thoughts and actions are nonetheless deeply embedded in social structure. People’s perceptions and opinions both represent and reproduce existing social conditions. Pierre Bourdieu, Distinction: A Social Critique of the Judgment of Taste 170-72 (Richard Nice trans., Harvard Univ. Press 1984) (1979).

Carr, Napolitano & Keating, supra note 233, at 467-69.

All quotations attributed to Lemuel were recorded during an interview conducted by Geena St. Andrew and Janice Bonsu on July 2, 2015.

Indeed, most youth, even in disadvantaged urban communities, are generally law-abiding. See James Forman, Jr., Community Policing & Youth as Assets , 95 J. Crim. L. & Criminology 1, 26-28 (2004).

See Gus G. Sentementes & Julie Bykowicz, Questions Raised for Years About City “Flex Squad , ” Balt. Sun (Jan. 15, 2006), http://articles.baltimoresun.com/2006-01-15/news/0601150112 ‌ _1 ‌ _squad-flex-mengel [http://perma.cc/HUH5-PD66].

See sources cited supra note 227.

Lemuel is convinced that African American officers in Baltimore are more abusive than white officers. “Black cops are the worst ones,” he declared. His observation mirrors that of The Wire creator and author David Simon and former Baltimore police officer Edward Burns: “[ T]oday , it’s a new generation of young black officers that is proving itself violently aggressive. A white patrolman in West Baltimore has to at least take into account the racial imagery . .  . . Not so his black counterparts, for whom brutality complaints can be shrugged off—not only because the victim was a corner-dwelling fiend, but because the racial aspect is neutralized.” David A. Simon & Edward Burns, The Corner 165 (1997); see also Robert A. Brown & James Frank, Race and Officer Decision Making: Examining Differences in Arrest Outcomes Between Black and White Officers , 23 Just. Q . 96, 120 (2006) (finding that, although white officers decide to arrest more frequently than black officers do, black officer-black suspect encounters were more likely to lead to arrest than any other officer-suspect combination); Rod K. Brunson & Jacinta M. Gau, Officer Race Versus Macro-Level Context: A Test of Competing Hypotheses About Black Citizens’ Experiences with and Perceptions of Black Police Officers , 61 Crime & Delinq. 213, 233-34 (2015) (arguing that urban African Americans’ perceptions of the police are not significantly different based on the racial composition of the force); Ivan Y. Sun & Brian K. Payne, Racial Differences in Resolving Conflicts: A Comparison Between Black and White Police Officers , 50 Crime & Delinq. 516, 534-36 (2004) (finding that black officers are more likely to use coercive techniques than white officers). But see Joshua C. Cochran & Patricia Y. Warren, Racial, Ethnic, and Gender Differences in Perceptions of the Police: The Salience of Officer Race Within the Context of Racial Profiling , 28 J. Contemp. Crim. Just . 206, 219, 221 (2012) (finding that black citizens were more likely to view an officer as behaving legitimately if the officer was black and arguing that greater minority representation on police forces might improve perceptions of policing among African Americans); David Eitle, Lisa Stolzenberg & Stewart J. D’Alessio, Police Organizational Factors, the Racial Composition of the Police, and the Probability of Arrest , 22 Just. Q. 30, 54 (2005) (associating greater minority representation on police forces with increased use of community policing practices). Baltimore’s population is 63% African American; its police force is 44% African American. Jeremy Ashkenas & Haeyoun Park, The Race Gap in America’s Police Departments , N.Y. Times (Apr. 8, 2015), http://www.nytimes.com/interactive/2014/09/03/us/the-race -gap ‌ -in-americas-police-departments.html [http://perma.cc/MKH9-D8RE]. These observations highlight a potential shortcoming of reform efforts aimed at diversifying police departments. While officer diversity is surely a positive goal, diversification without department-wide cultural change is unlikely to meaningfully improve the experience of police presence in poor and African American communities. See David Alan Sklansky, Not Your Father’s Police Department: Making Sense of the New Demographics of Law Enforcement , 96 J. Crim. L. & Criminology 1209, 1242 (2006) (calling the increased diversity of some urban police forces an “incomplete revolution”).

Security concerns at Baltimore high schools led the city to establish a separate school policing unit, the Baltimore City School Police Force, in 1967. The statute that authorizes the School Police Force specifies that its officers may only carry their service weapons onto campuses when school is out of session. Md. Code Ann., Educ . § 4-318(d)(3) (Lexis 2016). In 2015, the Baltimore school system’s CEO and Baltimore school police led a massive legislative and public advocacy campaign to remove this prohibition. See H.B. 101, 2015 Leg. Reg. Sess. (Md. 2015); Erica L. Green, School Police Plead To Resurrect Weapons Bill , Balt. Sun (Mar. 16, 2015, 10:49 PM), http://www.baltimoresun.com/news/maryland/baltimore -city/bs-md-ci-school-weapons-20150316-story.html [http://perma.cc/82Z7-K445]. The city held several listening sessions at high schools and public libraries in the summer after the bill failed, one of which I attended while conducting field research (July 17, 2015, Forest Park High School). The overwhelming majority of meeting participants–mostly parents of Baltimore high school students or community activists who seemed to have friendly preexisting relationships with the school police–spoke in favor of permitting Baltimore school police officers to carry guns in school buildings. For now, the law is unchanged.

In March 2016, after a cellphone video surfaced that showed a Baltimore school officer aggressively slapping and kicking a teen boy, the training and recruitment of Baltimore school police officers garnered new attention from school officials. Tim Prudente, Baltimore Schools CEO Will Review Officer Training, Selection After Slapping Incident , Balt. Sun (Mar. 8, 2016, 1:30 PM), http://www.baltimoresun.com/news/maryland/baltimore-city/bs-md-ci-com ‌ m ‌ un ‌ ity ‌ -meeting-reach-20160307-story.html [ http://perma.cc/U7TX-QQ7H ]. Lemuel’s alleged assault occurred years before videotaping emerged as a response to harsh police tactics.

For example, one young man who resides primarily in Northwest Baltimore’s Park Heights neighborhood said that there are so many cars on every corner in that neighborhood that he constantly feels that he is being watched: “I’ll go up to Park Heights and every corner I go to I’m going to see a police car. I’m not trying to say that’s a bad thing . .  . . I’m not even saying a cop is watching, but when you see a police car, eventually that’s somebody saying you’re being watched, for real. That’s how I feel. And I guess that’s how people see it when they see a cop car. It’s like they’re being watched.” This quote was recorded during an interview conducted by Kaitlin Edin-Nelson and Janice Bonsu on June 24, 2015.

One young woman discussing the same neighborhood said that it takes the police about twenty-five minutes to arrive when someone calls about a murder, accident, or other major event despite their common presence:

Geena: I heard you say earlier that a situation has to be “serious” before you call the police. What kind of situation would that be?

Respondent: Like murder or a robbery, accident, somebody being injured. Not just a little dispute or fuss. Somebody that has [an] injury or someone in trouble.

Geena: How long would the police take to respond and get there?

Respondent: I don’t know. I think like twenty-five minutes . . . unless they’re in the area and they just got called over.

Monica: Do you see the police around a lot? Like you said, “Unless they’re in the area”—are they in the areas where you are that much?

Respondent: Yeah, they do, because I live right up the street from the police station, so they just be around.

This conversation was recorded during an interview conducted by Geena St. Andrew and the author on July 22, 2015.

Bykowicz, supra note 150; Sentementes & Bykowicz, supra note 238.

See supra notes 145 - 150 and accompanying text.

See Radley Balko, An Interview with the Baltimore Cop Who’s Revealing All the Horrible Things He Saw on the Job , Wash. Post (June 25, 2015), http:// ‌ www ‌ .washing ‌ ton ‌ post ‌ .com ‌ /news ‌ /the ‌ -watch ‌ /wp/2015/06/25/an-interview-with-the-baltimore-cop-whos-revealing-all-the-horr ‌ i ‌ ble ‌ -things-he-saw-on-the-job [http://perma.cc/87G8-QH6L] (describing street enforcement unit bad behavior during raids, such as urinating or defecating on the belongings of suspects and their housemates).

See Rachel Harmon, Why Arrest ? , 115 Mich. L. Rev. 307, 308 (2016) (calling arrest the “paradigmatic police activity”); Wayne A. Logan, After the Cheering Stopped: Decriminalization and Legalism’s Limits , 24 Cornell J.L. & Pub. Pol ’ y 319, 331-35 (2014). See generally Elina Treyger, Collateral Incentives To Arrest , 63 Kan. L. Rev . 557 (2015) (critiquing indirect incentives to arrest and resultant systemic distortions).

Ema O’Connor, A Former Baltimore Police Officer Exposed His Department’s Corruption , BuzzFeed News (June 30, 2015, 12:57 PM) http://www.buzzfeed.com ‌ /emaoconnor ‌ /baltimore ‌ -police-officer-tweets-up [http://perma.cc/6W2G-BMWU].

See, e.g. , Eisha Jain, Arrests as Regulation , 67 Stan. L. Rev . 809, 819 (2015); Kohler-Hausmann, supra note 16; Alexandra Natapoff, Misdemeanor Decriminalization , 68 Vand. L. Rev . 1055, 1057-58 (2015).

See Pierre Bourdieu, The Forms of Capital , in Handbook of Theory and Research for the Sociology of Education 241 (John Richardson ed., 1986).

See e.g. , Tyler & Fagan, supra note 8; Sunshine & Tyler, supra note 9.

See e.g. , Bernard E. Harcourt, Illusion of Order: The False Promise of Broken Windows Policing 46-47 (2009) (explaining that the “community policing” label has been applied to systems that use directly opposing strategies, including broken-windows policing and stop-and-frisk, and thus avoiding the term); George L. Kelling & Catherine M. Coles, Fixing Broken Windows 158 (1997) (noting that “community policing has come to mean all things to all people” and declaring that the changes in New York City’s policing strategies during the Giuliani era “are congruent with the basic elements of community policing”); Seth W. Stoughton, Principled Policing: Warrior Cops and Guardian Officers , 51 Wake Forest L. Rev . 611, 628 (2016) (arguing that “[t]he absence of a functional definition of community policing” led to inevitable implementation challenges and department resistance).

The distinction between legitimacy and legal estrangement is analogous to the distinction between ideological and structural understandings of racism. As Eduardo Bonilla-Silva explains, “Most analysts regard racism as a matter of individuals subscribing to an irrational view, thus the cure is educating them to realize that racism is wrong . .  . . The alternative theorization offered here implies that because the phenomenon has structural consequences for the races, the only way to ‘cure’ society of racism is by eliminating its systemic roots.” Eduardo Bonilla-Silva, supra note 213, at 476. Along similar lines, legal estrangement demands a structural response, while legitimacy theory ultimately implies that an education-based approach, focused on changing the behavior of a few bad actors, is sufficient to cure the problem of policing.

See, e.g. , A Vision for Black Lives: Policy Demands for Black Power, Freedom & Justice , Movement for Black Lives 3-4 (July 2016), http://policy.m4bl.org/wp-content ‌ /uploads ‌ /2016 ‌ /07 ‌ /20160726-m4bl-Vision-Booklet-V3.pdf [ http://perma.cc/488M-NWUF ]; Forward Through Ferguson: A Path Toward Racial Equity , Ferguson Commission, 15-17 (Oct. 14, 2015), http://3680or2khmk3bzkp33juiea1.wpengine.netdna-cdn.com/wp-content ‌ /up ‌ loads ‌‌ /2015 ‌‌ /09 ‌ /101415_FergusonCommissionReport.pdf [http://perma.cc/R32G-76LX] (framing the problem that gave rise to the death of Michael Brown as a problem of police-citizen relations, municipal court and local governance, child well-being and education, lack of economic opportunity, and racial inequity); cf. Ta-Nehisi Coates, The Myth of Police Reform , Atlantic (Apr. 15, 2015), http://www.theatlantic.com ‌ /politics/archive/2015 ‌ /04/the -myth-of-police-reform/390057 [http://perma.cc/8XJN-P9J6] (“A reform that begins with the officer on the beat is not reform at all.”).

See Gottschalk , supra note 3, at 258-59 (critiquing the paralysis that results from the “root causes” perspective in advocacy against mass incarceration).

Sampson & Bartusch, supra note 9, at 778.

Capers, supra note 153, at 60-77.

See Devah Pager, Marked 16 (2007).

See, e.g. , Rios , supra note 126, at 36; Becky Pettit & Bruce Western, Mass Imprisonment and the Life Course: Race and Class Inequality in U.S. Incarceration , 69 Am. Soc. Rev . 151, 151 (2004) (characterizing incarceration as a “new stage in the life course” of young black men who have not completed high school).

See Rachel A. Harmon, Federal Programs and the Real Costs of Policing , 90 N.Y.U. L. Rev. 870, 876-77, 879-84 (2015).

See, e.g. , Andrew Manuel Crespo, Systemic Facts: Toward Institutional Awareness in Criminal Courts , 129 Harv. L. Rev . 2049, 2057-65 (2016) (critiquing the “administrativist turn” in scholarship on police regulation and arguing for a robust role for local criminal courts); Joanna C. Schwartz, Who Can Police the Police ? , 2016 U. Chi. Legal F. 437, 437 (introducing a framework for thinking about which actors are best suited to pursue police reform).

Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 210401(a), 108 Stat. 1796, 2071 (codified at 42 U.S.C. § 14141).

See, e.g. , Stephen Rushin, Structural Reform Litigation in American Police Departments , 99 Minn. L. Rev . 1343, 1359-63 (2015).

E.g. , Myriam E. Gilles, Reinventing Structural Reform Litigation: Deputizing Private Citizens in the Enforcement of Civil Rights , 100 Colum. L. Rev. 1384, 1417-18 (2000) (arguing that the statute should permit the DOJ to deputize private citizens to bring pattern or practice suits against police departments if the government has declined to do so); Harmon, supra note 2, at 4 (proposing more aggressive DOJ pursuit of section 14141 lawsuits and a safe harbor from lawsuit for police departments that voluntarily reform); Stephen Rushin, Using Data To Reduce Police Violence , 57 B.C. L. Rev . 117, 154-66 (2016) (arguing that data availability on civilian deaths caused by law enforcement could increase the effectiveness of section 14141); Kami Chavis Simmons, The Politics of Policing: Ensuring Stakeholder Collaboration in the Federal Reform of Local Law Enforcement Agencies , 98 J. Crim. L. & Criminology 489, 494 (2008) (arguing that the DOJ should use a different deliberation model in reform efforts it instigates pursuant to section 14141).

See Harmon, supra note 2, at 3-4 ; Stephen Rushin, Federal Enforcement of Police Reform , 82 Fordham L. Rev . 3189, 3232-33 (2014).

See Police Exec. Research Forum, Civil Rights Investigations of Local Police: Lessons Learned 4 (2013); Simmons, supra note 265, at 493 (“[ G]overnment officials have expressly articulated a preference for avoiding litigation and negotiating with municipalities to ensure compliance with the suggested reforms.”).

Conduct of Law Enforcement Agencies , U.S. Dep’t Just. (June 2, 2016), http:// www ‌ .justice ‌ .gov ‌ /crt/conduct-law-enforcement-agencies [http://perma.cc/LBR2-V6ZR].

See Brian A. Reaves , Local Police Departments, 2013: Personnel, Policies, and Practices , U.S. Dep’t Just. 1 (May 2015), http://www.bjs.gov/content/pub/pdf/lpd13ppp.pdf [http:// ‌ perma.cc ‌ /4NHA-ZFGZ]. While there is no direct evidence to suggest that the Obama Administration is underproducing section 14141 investigations, other scholars have written about the inherent barriers to initiating section 14141 actions even if a given administration is more willing to use that tool. See, e.g. , Rachel Harmon, Limited Leverage: Federal Remedies and Policing Reform , 32 St. Louis U. Pub. L. Rev. 33, 44 (2012) (“Assuming even a small minority of [police departments] is engaged in a pattern or practice of constitutional violations, the Department of Justice cannot achieve national reform by suing every department with a pattern of widespread constitutional violations.”); Harmon, supra note 2, at 21-22; Sunita Patel, Toward Democratic Police Reform: A Vision for “Community Engagement” Provisions in DOJ Consent Decrees , 51 Wake Forest L. Rev. 793, 812-14 (2016).

DOJ Baltimore Report, supra note 156, at 85-87.

See supra note 137 and accompanying text.

DOJ Baltimore Report , supra note 156, at 72-73; see also 42 U.S.C § 2000d to d-7 (2012) (barring race, color, and national origin discrimination in federally assisted programs, which includes the Baltimore Police Department because of the funding it receives from the federal Community Oriented Policing Services agency); Omnibus Crime Control and Safe Streets Act of 1968, 42 U.S.C. § 3789d (2012) (providing the federal government a tool to force local policy departments to eliminate structurally exclusive policies); 28 C.F.R. § 42.203 (2010) (barring programs that receive federal funding from the Justice System Improvement Act or Juvenile Justice Act from using practices that discriminate on the basis of race, color, religion, national origin, or gender unless necessary).

Task Force Report , supra note 6, at 12.

DOJ Baltimore Report , supra note 156, at 72.

See, e.g. , Harmon, supra note 95, at 802 ; Seth W. Stoughton, The Incidental Regulation of Policing , 98 Minn. L. Rev. 2179, 2182 (2014) ; see also Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution , 102 Mich. L. Rev . 801, 855 (2004) (explaining that wiretapping tends to be regulated by statute more than by Fourth Amendment jurisprudence); Erin Murphy, The Politics of Privacy in the Criminal Justice System: Information Disclosure, the Fourth Amendment, and Statutory Law Enforcement Exemptions , 111 Mich. L. Rev . 485, 535-37 (2013) (comparing courts and political processes in their ability to protect privacy).

Seth Freed Wessler, Police Pay Gap: Many of America’s Finest Struggle on Poverty Wages , NBC News (Oct. 26, 2014), http://www.nbcnews.com/feature/in-plain-sight/police-pay-gap -many ‌ -americas-finest-struggle-poverty-wages-n232701 [http://perma.cc/33V8-62PE].

United States v. City of Ferguson, No. 4:16-cv-000180, at 65 (E.D. Mo. Mar. 17, 2016) (consent decree).

Seth W. Stoughton, Moonlighting: The Private Employment of Off-Duty Officers , 2017 U. Ill. L. Rev. (forthcoming).

Joce Sterman, ABC2 Investigators Find Highest Paid City Employees Are Everyday Police Officers , ABC2News (Oct. 3, 2013, 9:01 PM), http://www.abc2news.com/news/local-news ‌ /in ves ‌ ti ‌ ga ‌ tions ‌ /abc2-investigators-find-highest-paid-city-employees-are-everyday-police -officers [http:// ‌ perma.cc/V2RS-P96D].

Sean Welsh, Top Baltimore City Salaries for 2015 , Balt. Sun (July 30, 2015, 6:19 PM), http:// ‌ www ‌ .baltimoresun.com /news/maryland/baltimore-city/bal-10-highest-balt ‌ i ‌ mo ‌ re ‌ -city-sal ‌ ar ‌ ies ‌ -for-2015-20150730-story.html [http://perma.cc/S878-UGC5].

According to the city salary database, gross salary includes overtime, furloughs, and adjustments, and it does not include any compensation for “comp time” or leave time. It thus seems highly likely that the lieutenant’s pay is largely attributable to overtime. See Baltimore City Employee Salaries FY2015 , Open Balt . , http://data.baltimorecity.gov/ City-Govern ‌ ment ‌ /Balt ‌ imore-City-Employee-Salaries-FY2015/nsfe-bg53 [http:// ‌ perma.cc ‌ /6RZC ‌‌ -28MD]. Note that the city did pay out more than expected in FY 2015 overtime in part because of the Freddie Gray response and subsequent spike in crime. Kevin Rector, Baltimore Police Shifting Officers To Rein in Overtime Costs Amid Historic Year , Balt. Sun (Apr. 8, 2016, 9:04 PM), http:// ‌ http://www.baltimoresun.com/news/maryland/crime/bs-md-ci-police -overtime-20160408 ‌ -stor ‌ y.html [http://perma.cc/5AGC-P9JK].

See Task Force Report, supra note 6, at 65.

Id. at 61-68.

See Michael E. Walleman, Seniority Rights , 77 Police Chief 32 (2010).

See Michelle Wilde Anderson, The New Minimal Cities , 123 Yale L.J. 1118, 1120-21 (2014).

Jihong “Solomon” Zhao, Matthew C. Scheider & Quint Thuman, Funding Community Policing To Reduce Crime: Have COPS Grants Made a Difference ? , 2 Criminology & Pub. Pol’y 7, 9 (2002).

H.R. 1384, 119th Gen. Assemb ., 2d Reg. Sess. (Ind. 2016).

For instance, the Dallas Police Department receives payment from neighborhood associations in exchange for special patrolling and related services. The number of hours and array of services varies based on the amount of money the association raises. See Naomi Martin, As More Dallas Neighborhoods Pay for Extra Patrols, Some Question Fairness , Dall. Morning News (Oct. 25, 2015), http://www.dallasnews.com/news/crime/headlines/20151025 -as-more ‌ -dallas-neighborhoods-pay-for-extra-patrols-some-question-fairness.ece [http:// ‌ perma.cc ‌ /FA9G-E2ED].

Civil Rights Div., Investigation of the New Orleans Police Department , U.S. Dep’t Just. 73 (Mar. 16, 2011) [hereinafter DOJ New Orleans Report ], http://nolaipm.gov/main ‌ /up ‌ loads ‌ /File/All/doj_report_110317.pdf [ http://perma.cc/9SXB-5JWB ].

Id. at 69-75.

Some have expressed concerns about these arrangements. For example, the Auditor of the City of San Jose, California issued a report in 2012 stating that “urgent reform and a cultural change” are needed in the off-duty employment program and expressed a concern about “inequities,” though the specific concern was that there would be inequities among officers rather than unequal effects on the community. Office of the City Auditor, Police Department Secondary Employment: Urgent Reform and a Cultural Change Needed To Gain Control of Off-Duty Police Work 13 (2012); see also Steve Toprani, Pittsburgh Bureau of Police, Outside and Unmanaged Employment: A Report Detailing Existing Policies and Recommending Reforms (2014) (describing various police departments’ approaches to the governance of secondary employment).

United States v. City of New Orleans, No. 12-1924 (E.D. La. Jan. 11, 2013) (consent decree).

DOJ New Orleans Report, supra note 291, at 74-75. Although the New Orleans system has been restructured, critics claim that it remains burdened with favoritism and inequality. David Hammer & John Simerman, Despite Reforms, NOPD Officers Still Keep Details for Themselves , WWL-TV (Feb. 10, 2015, 10:49 PM), http://legacy.wwltv.com ‌ /story ‌ /news ‌ /local/investigations/david-hammer/2015/02/10/despite-reforms-nopd-officers-still-keep ‌ -details-for-themselves/23212303 [http://perma.cc/4Z92-EU9K].

See, e.g. , Jessica Lee, Seattle Neighborhoods Hire Private Security Amid “Blatant Lawlessness , ” Seattle Times (Jan. 23, 2016, 8:44 PM), http://www.seattletimes.com/seattle-news ‌ /citizen ‌ -anti-crime-movement-afoot-in-seattles-neighborhoods [http://perma.cc/8ADP-HDBS].

Joh, supra note 152, at 49.

Reaves, supra note 269, at 1.

Garland , supra note 16, at 169 (“[ T]he stated purposes of police have changed, sometimes quite dramatically, and new tactics increasingly define how they deploy their resources. But studies of police budgets and working practices suggest that the daily practices of most police forces have not changed so drastically as this would suggest. And, moreover, these new priorities and tactics have not, as yet, led to any basic reorganization of the police as a public agency.”).

Alan Blinder, Rural Justice Focus of Ex-Police Chief’s Murder Trial , N.Y. Times (Jan. 7, 2015), http:// ‌ http://www.nytimes.com/2015/01/08/us/richard-combs-bernard-bailey-shooting -case.html [http://perma.cc/GP2C-4HK8].

See John Monk, Ex-Eutawville Chief Pleads Guilty to Lesser Charge, Will Serve No Time for Killing Black Motorist , State (Sept. 1, 2015), http://www.thestate.com/news ‌ /local/crime ‌ /article ‌ 33213873.html [http://perma.cc/HK6R-R4JV].

Prosecutor: Death of Man Shot by Police Chief Was “Senseless , ” CBS News (Jan. 8, 2015, 3:41 PM), http://www.cbsnews.com/news/richard-combs-case-prosecutor-death-of-man -shot-by ‌‌ -police ‌ -chief-was-senseless [http://perma.cc/H3LY-A6H5].

See, e.g. , Timothy Williams, Cast-Out Police Officers Are Often Hired in Other Cities , N.Y. Times (Sept. 10, 2016), http://www.nytimes.com/2016/09/11/us/whereabouts-of-cast-out -police-officers-other-cities-often-hire-them.html [ http://perma.cc/A39R-Q9ZG ] (describing departments’ failure to screen previously fired officers as a factor contributing to incidents of police misconduct). It is also worth noting that there is no national database of police officers who have been fired or lost their certification, in part because of police union opposition. Id.

E.g. , Dagney Faulk & D. Eric Schansberg , The Effects of City-County Consolidation: A Review of the Recent Academic Literature , Ind. Pol’y Rev. Found. 4 (Nov. 16, 2005), http:// ‌ www ‌ .in ‌ .gov/legislative/interim/committee/2005/committees/prelim/MCCC02.pdf [http:// ‌ perma.cc ‌ /2YPU-ZWLC]. But see Douglas Laycock, Voting with Your Feet Is No Substitute for Constitutional Rights , 32 Harv. J.L. & Pub. Pol’y 29, 31 (2009).

See, e.g. , Overcoming the Challenges and Creating a Regional Approach to Policing in St. Louis City and County , Police Executive Res. F. 40-42 (Apr. 30, 2015), http:// ‌ www ‌ .police ‌ forum ‌ .org ‌ /assets/stlouis.pdf [http://perma.cc/V3LA-M8UW].

See Mark Ernst, What Impact Will Consolidation of Police Services by Small and Medium Size Police Agencies Have on Community Oriented Policing by the Year 2003 ? , Cal. Commission on Peace Officer Standards & Training 2 (July 1994), http://www.ncjrs.gov ‌ /pdffiles1 ‌ /Digit ‌ ization ‌ /151687NCJRS.pdf [http://perma.cc/FA7W-CBMU] (“On the face of it, the concepts of community oriented policing and consolidation of police services appear to be diametrically opposed.”); Stephen D. Mastrofski & James J. Willis, Police Organization Continuity and Change: Into the Twenty-First Century , 39 Crime & Just . 55, 62 (2010).

For example, Cincinnati, Ohio, provides one of the most celebrated stories of police restructuring done well. See, e.g. , Alana Semuels, How To Fix a Broken Police Department , Atlantic (May 28, 2015), http://www.theatlantic.com/politics/archive/2015/05/cincinnati-police-re ‌ form ‌ /393 ‌ 797 [ http://perma.cc/M22E-KNZR ] . The Cincinnati Police Department employs roughly 1,000 sworn officers. About Police: Cincinnati Police Department , City Cincinnati , http:// ‌ http://www.cincinnati-oh.gov/police/about-police [http://perma.cc/4GYX-WYTW]. As noted above, one of the pitfalls of “community policing” is its nonspecificity. See supra note 253 and accompanying text. Yet the problem-oriented community policing model employed in Cincinnati seems to offer a potential positive way forward.

See Jeremy M. Wilson, Alexander Weiss & Clifford Grammich , Pathways to Consolidation: Taking Stock of Transitions to Alternative Models of Police Service , Off. Community Oriented Policing Services 3 (2015), http://policeconsolidation.msu.edu ‌ /sites/default ‌ /files ‌ / Path ‌ ways ‌ ToConsolidationAlternativeModels.pdf [http://perma.cc/833U-2PVH].

On the conservative argument for reducing criminal justice spending, including through cutting incarceration, see Statement of Principles , Right on Crime, http://rightoncrime.com ‌ /state ‌ ment ‌ -of-principles [http://perma.cc/C6M4-Xp3X] (“Conservatives are known for being tough on crime, but we must also be tough on criminal justice spending. That means demanding more cost-effective approaches that enhance public safety. A clear example is our reliance on prisons . .  . . ”).

Meares, supra note 16, at 179.

Floyd v. City of New York, 959 F. Supp. 2d 540 (S.D.N.Y. 2013) ( finding the New York City Police Department liable for a pattern and practice of racial profiling and unconstitutional Terry stops).

E.g. , Wesley Lowery, Korryn Gaines , Cradling Child and Shotgun, Is Fatally Shot by Police , Wash. Post (Aug. 2, 2016), http://www.washingtonpost.com/news/post-nation/wp /2016 ‌ /08 ‌‌ /02 ‌ /korryn-gaines-is-the-ninth-black-woman-shot-and-killed-by-police-this-year [http:// ‌ perma.cc/7JMQ-U78W]. While some media focused on Gaines’s actions as a catalyst for the police response and her death, activists have claimed—more in line with a legal estrangement perspective—that the officers’ decision to fire on Gaines when she was holding her five-year-old son was symbolic of their devaluation of African American lives. From a legitimacy perspective, the fact that Gaines was carrying a shotgun, which she allegedly fired, could be relevant—officers can explain, in a seemingly neutral way, why they made the decision to fire. From an estrangement perspective, regardless of whether the officers’ decision was objectively reasonable, it was subjectively unreasonable and reproductive of the social exclusion of African Americans.

One exception to this characterization is some of Tracey Meares’s scholarship. In particular, in a lecture on the legitimacy of police among young African American men, Meares argues that legitimacy-based policing can build trust between this population and the police. Meares, Legitimacy of Police , supra note 98, at 666. Yet Meares notes that a core assumption of legitimacy theory—that noncompliance with the law and law enforcement is attributable to a lack of belief in the legitimacy of the law or law enforcement—may not be fully supported in research, including her own. Id. The faultiness of this assumption, particularly as applied to young African American men, calls into question whether it is correct to assume that legitimacy-based policing will address this group’s perception of police marginalization.

Utah v. Strieff, 136 S. Ct. 2056 (2016).

Id. at 2059-60.

Id. at 2060.

See, e.g. , Kaaryn Gustafson, The Criminalization of Poverty , 99 J. Crim. L. & Criminology 643, 667-68 (2009).

517 U.S. 806, 813 (1996).

426 U.S. 229 (1976); see also Paul Butler, The System Is Working the Way It Is Supposed To: The Limits of Criminal Justice Reform , 104 Geo. L.J. 1419, 1453 (2016) (explaining the difficulty of challenging a pattern of discriminatory arrests under the Equal Protection Clause).

Commonwealth v. Warren, No. 11596, slip op. at 15-17 (Mass. Sept. 20, 2016); see also Commonwealth v. Mercado, 663 N.E.2d 243, 246 (Mass. 1996) (concluding that “evasive behavior” is insufficient to support reasonable individualized suspicion).

Warren , slip op. at 15-19.

E.g. , Schmerber v. California, 384 U.S. 757, 767-69 (1966). But see Daniel J. Meltzer, Deterring Constitutional Violations by Law Enforcement Officials: Plaintiffs and Defendants as Private Attorneys General , 88 Colum. L. Rev . 247, 249-50 (1988) (suggesting that Fourth Amendment jurisprudence is aimed at regulating bureaucratic actors as well as protecting individual rights).

Akhil Reed Amar, The Constitution and Criminal Procedure: First Principles 37-39 (1997).

Friedman & Ponomarenko, supra note 83, at 1834-36.

See, e.g. , Amy E. Lerman & Vesla M. Weaver, Arresting Citizenship 142 (2014) (describing the asymmetric power orientation toward government that arises from being subjected to the carceral state); Kay Lehman Schlozman, Sidney Verba & Henry E. Brady, The Unheavenly Chorus: Unequal Political Voice and the Broken Promise of American Democracy 185, 312-46 (2012) (discussing education and organized political action); Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association , 91 Calif. L. Rev. 1209, 1260-62 (2003).

E.g. , Charles A. Reich, The Law of the Planned Society , 75 Yale L.J. 1227, 1259-60 (1966); Miriam Seifter, Second-Order Participation in Administrative Law , 63 UCLA L. Rev . 1300, 1333-52 (2016) (describing reliance on questionably representative interest groups to ensure participation in administrative rulemaking).

Offering a more optimistic account, Friedman and Ponomarenko point to national civil rights organizations, such as the NAACP and ACLU, along with more regional and local groups, like churches, as giving voice to the disenfranchised communities. Friedman & Ponomarenko, supra note 83, at 1789-80. However, given what political sociology reveals about the processes through which community groups often come to represent community interests, it might not be safe to assume that large national organizations or community nonprofits are a reliable channel for ensuring sufficient democratic voice in policing to root out legal estrangement. See, e.g. , Jeremy R. Levine, The Privatization of Political Representation: Community-Based Organizations as Nonelected Neighborhood Representatives , 81 Am. Soc. Rev. 1251, 1268-72 (2016) (arguing that, although community-based organizations help channel resources to under-resourced neighborhoods, those resources may come at the cost of democratic accountability).

See Erik Luna, Transparent Policing , 85 Iowa L. Rev . 1107, 1121-31 (2000) (describing the democratic bases for increasing availability of governmental information about policing).

See Ill. Public Act 093-0209 (2003).

See Edward McClelland, Barack Obama and Racial Profiling , NBC Chi. (July 18, 2013), http:// ‌ http://www.nbcchicago.com/blogs/ward-room/Barack-Obama-and-Racial-Pro ‌ fil ‌ ing ‌ -215986531.html [http://perma.cc/QPP3-XL22].

On organized copwatching, see generally Simonson , supra note 191 .

Zoe Mentel, Racial Reconciliation, Truth-Telling, and Police Legitimacy , U.S. Dep’t Just. 19 -21 (2012), http://nnscommunities.org/uploads/Racial-Reconciliation_Truth-Telling_and -Legit ‌ imacy.pdf [http://perma.cc/TP5G-U4SJ]; Reconciliation , Nat’l Initiative for Building Community Tr. & Just ., http://trustandjustice.org/resources ‌ /intervention ‌ /re ‌ con ‌ ciliation [http://perma.cc/NJ3B-TKUS].

Reconciliation , supra note 336.

See David M. Kennedy, Don’t Shoot 83 (2011).

Mustafa Emirbayer & Victoria Johnson, Bourdieu and Organizational Analysis , 37 Theory & Soc’y 1, 32 (2008).

See Jonathan Allen, Balancing Justice and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission , 49 U. Toronto L.J . 315, 319 (1999) (“Truth commissions are thought to play the symbolic role of making a decisive break with the official sponsorship of human rights violations that characterized the past.”); see also Martha Minow, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence 62 (1998) (characterizing the truth commission as a possibility for healing and justice “ after periods of terror and violations of human rights” (emphasis added)).

Andrew V. Papachristos, David M. Hureau & Anthony A. Braga, The Corner and the Crew: The Influence of Geography and Social Networks on Gang Violence , 78 Am . Soc. Rev . 417, 438 (2013).

See, e.g. , Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity , at xx-xxii (2009); Coates, supra note 255 (“Vexing social problems—homelessness, drug use, the inability to support one’s children, mental illness—are presently solved by sending in men and women who specialize in inspiring fear and ensuring compliance.”); Kohler-Hausmann, supra note 16, at 691-92; Bruce Western, The Rehabilitation Paradox , New Yorker (May 9, 2016), http://www.newyorker.com/news/news-desk/the-re ‌ hab ‌ il ‌ itation-paradox [ http://perma.cc/PT4M-E27B ].

See, e.g. , Bell, supra note 42, at 332-34; Mary Fan, Street Diversion and Decarceration , 50 Am. Crim. L. Rev . 165, 167-68 (2013); Sarah E. Waldeck, Cops, Community Policing, and the Social Norms Approach to Crime Control: Should One Make Us More Comfortable with the Others ? , 34 Ga. L. Rev. 1253 , 1299-1301 (2000).

See Garland , supra note 16; see also Jessica Eaglin, The Drug Court Paradigm , 53 Am. Crim. L. Rev . 595, 635 (2016) (“[ D]rug courts may have incentivized police and prosecutors to expand the number of individuals processed within the system for drug offenses due to the well-meaning belief that the justice system would offer better treatment.”); Allegra McLeod, Decarceration Courts: Possibilities and Perils of a Shifting Criminal Law , 100 Geo. L.J. 1587, 1619-20 (2012) ; Natapoff, supra note 250, at 1059.

George Gascón & Todd Foglesong, Making Policing More Affordable: Managing Costs and Measuring Value in Policing , Nat’l Inst. Just. (Dec. 2010) , http://www.ncjrs.gov ‌ /pdffiles1 ‌ /nij ‌ /231096.pdf [ http://perma.cc/9NTG-K986 ].

See, e.g. , Brady Dennis, Mark Berman & Elahe Izadi, Dallas Police Chief Says ‘We’re Asking Cops To Do Too Much in this Country , ’ Wash. Post (July 11, 2016), http:// www ‌ .wash ‌ ingtonpost.com/news/post-nation/wp/2016/07/11/grief-and-anger-continue-after-dallas-a ‌ ttacks-and-police-shootings-as-debate-rages-over-policing [ http://perma.cc/X72P-7EFG ]. This is not a new issue. See, e.g. , Albert J. Reiss, Jr., The Police and the Public 63 (1972); Egon Bittner, Florence Nightingale in Pursuit of Willie Sutton: A Theory of the Police , in The Potential for Reform of Criminal Justice 17 (Herbert Jacob ed., 1974).

See Camille A. Nelson, Racializing Disability, Disabling Race: Policing Race and Mental Status , 15 Berkeley J. Crim. L. 1, 4-5 (2010) (introducing three modalities of police interaction with the mentally ill).

See Sarah Swan, Home Rules , 64 Duke L.J . 823, 867 (2015).

See Beckett & Herbert , supra note 16, at 12-14.

See Wayne A. Logan , An Exception Swallows a Rule: Police Authority To Search Incident to Arrest , 19 Yale L. & Pol’y Rev . 381, 403 (2001).

See Max Weber , Politics as a Vocation , in From Max Weber: Essays in Sociology (H.H. Gerth & C. Wright Mills eds. & trans., 1946) (“[A] state is a human community that (successfully) claims the monopoly of the legitimate use of physical force within a given territory.”).

Richard H. McAdams, Dhammika Dharmapala & Nuno Garoupa, The Law of Police , 82 U. Chi. L. Rev. 135, 142-47 (2015).

See generally Barbara E. Armacost, Organizational Culture & Police Misconduct , 72 Geo. Wash. L. Rev . 45 (2004) (arguing that the powerful culture of police departments sets conditions that produce violent misconduct).

See Canice Prendergrast, The Motivation and Bias of Bureaucrats , 97 Am. Econ. Rev . 180, 192 (2007); see also Richard H. McAdams, Dhammika Dharmapala & Nuno Garoupa, Punitive Police? Agency Costs, Law Enforcement, and Criminal Procedure (Coase-Sandor Inst. for Law & Econ ., Working Paper No. 644, 2015), http://chicagounbound.uchicago.edu ‌ /law ‌ _and ‌ _econ ‌ omics/642 [ http://perma.cc/N2C8-GGFH ].

See Task Force Report , supra note 6, at 1 (“Law enforcement culture should embrace a guardian—rather than a warrior—mindset to build trust and legitimacy both within agencies and with the public.”); Sue Rahr & Stephen K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals , Nat’l Inst. Just. (Apr. 2015), http:// ‌ www ‌ .ncjrs.gov /pdffiles1/nij/248654.pdf [ http://perma.cc/355P-JDJD ]; Stoughton, supra note 253, at 612-14.

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What Police Are For: A Look Into Role Of The Police In Modern Society

NPR's Mary Louise Kelly talks with Barry Friedman, the director of New York University's Policing Project, about the role of the police in modern society.

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In This Article Expand or collapse the "in this article" section Policing and Law Enforcement

Introduction, general overviews.

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• Use of Force

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Policing and Law Enforcement by James J. Willis LAST REVIEWED: 14 December 2009 LAST MODIFIED: 14 December 2009 DOI: 10.1093/obo/9780195396607-0034

Because modern law enforcement agencies do many different things, it is impossible to define policing in terms of its ends. While it is true that one of the purposes of the police is to enforce the law, frequently they do not. Moreover, the police are expected to perform a wide variety of tasks, such as preventing crime, providing services, and maintaining order, which are not accurately described as law enforcement. Unlike in many other industrialized countries, the organization of American law enforcement is fragmented among different agencies at the local, state, and federal levels of government. This has several general implications: (1) there is no such thing as a “typical” police department; (2) interagency coordination is possible but not a structural feature of law enforcement organization; and (3) it is possible only to estimate the number of law enforcement agencies and personnel in the United States. According to the latest figures from the Bureau of Justice Statistics (BJS), in 2004 there were over seventeen thousand public law enforcement agencies in the United States. The majority (12,766) were local police departments operating at the municipal level, employing 731,903 full-time sworn law enforcement officers. Because these general-purpose law enforcement agencies are the most visible to the public and the source of the majority of police-citizen contacts, they are the focus of this online entry. Other public law enforcement agencies include sheriff’s departments organized at the local county level, state police, federal law enforcement agencies, and special law enforcement organizations with specialized jurisdictions (most importantly tribal police). This does not include the private security industry, which is another essential component of American law enforcement.

Most, but not all, police scholars favor Egon Bittner’s means-based definition of the police, which defines the police in terms of their capacity to use nonnegotiable coercive force in any situation that appears to require a prompt and decisive response ( Bittner 1970 ). Bittner’s definition can be criticized for overlooking similarities between the police and other organizations ( Reiss 1992 ) and for excluding other core functions of the police, such as processing and distributing information ( Ericson and Haggerty 2002 ). Still, Bittner’s definition is superior to ends-based definitions, and helps capture the complexity of the police role and the breadth of the police mandate. Policing is a popular course in criminal justice programs, and there is a host of general texts available. Walker and Katz 2007 is a succinct and well-organized introduction to policing, and the material it covers is the basis for raising analytical questions about the role and function of the police. If an anthology is preferred, Brandl and Barlow 2004 is timely and includes a fairly extensive list of articles on police theory and practice. Klockars and Mastrofski 1991 is somewhat dated, but its organization of readings around core themes and the editors’ comments are excellent tools for encouraging undergraduate students to think critically about the complexities of policing. Any of these books could be an anchor text in a specialized course on policing. For graduate students and new researchers to the area, Newburn 2005 is probably the most comprehensive anthology, with forty-five articles. The final report of the National Research Council’s Committee to Review Research on Police Policy and Practices ( National Research Council 2004 ) provides an indispensable review of the current state of empirical research on police and identifies important gaps in existing knowledge. Lastly, a useful source for assessing the size and scope of law enforcement in the United States is the Census of State and Local Law Enforcement Agencies, conducted regularly by the Bureau of Justice Statistics (see Reaves and Hickman 2007 for the most recent bulletin).

Bittner, Egon. 1970. The functions of the police in modern society . Chevy Chase, MD: U.S. National Institute of Mental Health, Center for Studies of Crime and Delinquency.

Foundational text examining the role and function of the police in modern society. Provides a frank critique of popular conceptions of police work, including public ambivalence toward police power, and uses a sociological and historical framework to explain the police capacity to use coercive force.

Brandl, Steven G., and David E. Barlow, eds. 2004. The police in America: Classic and contemporary readings . Belmont, CA: Wadsworth/Thomson Learning.

Collection of major theoretical and empirical works designed to provide upper-level undergraduate students with a strong scholarly foundation in police research, theory, and practice. One strength of this collection is its juxtaposition of classic and contemporary readings in police history, discretion, and strategies to demonstrate developments in the field and to promote an informed dialogue on police policies and their empirical bases.

Ericson, Richard V., and Kevin D. Haggerty. 2002. The policing of risk. In Embracing risk: The changing culture of insurance and responsibility . Edited by Tom Baker and Jonathan Simon, 238–272. Chicago: Univ. of Chicago Press.

Problematizes the conventional definition of the police as a mechanism for the distribution of nonnegotiable coercive force. The authors define the role of the police in modern society as that of information broker. As such, the police produce and distribute knowledge as a part of a larger risk-communication system.

Klockars, Carl B., and Stephen D. Mastrofski, eds. 1991. Thinking about police: Contemporary readings . 2d ed. New York: McGraw-Hill.

Challenging ensemble of articles suitable for upper-level undergraduate courses. Topics covered include images and expectations, police discretion, the police and serious crime, policing everyday life, the moral hazards of police work, and prospects for change. Still relevant, but should be supplemented with more recent scholarship.

National Research Council. 2004. Fairness and effectiveness in policing: The evidence . Committee to Review Research on Police Policy and Practices. Edited by Wesley Skogan and Kathleen Frydl. Committee on Law and Justice, Division of Behavioral and Social Sciences and Education. Washington, DC: The National Academies Press.

Authoritative review by an expert panel of research on the nature of policing in the United States. Excellent use of key themes and developments to organize a great deal of information.

Newburn, Tim, ed. 2005. Policing: Key readings . Cullompton, UK and Portland, OR: Willan.

Large number of articles covering a wide range of topics. Suitable for graduate courses on policing. Readings are on: emergence and development of police; role and function of the police; police culture; policing strategies; deviance, ethics, and control; and the emerging pattern of policing. The last of these provides a useful introduction to policing in the context of postmodernity.

Reaves, Brian and Matthew Hickman. 2007. Census of state and local law enforcement agencies, 2004 . Washington, DC: Bureau of Justice Statistics.

Summary statistics of a national survey of U.S. local and state police agencies conducted in 2004. Topics covered include number of police agencies and agency size.

Reiss, Albert J. Jr. 1992. Police organization in the twentieth century. In Crime and justice: An annual review of research . Vol. 14, Modern policing . Edited by Michael Tonry and Norval Morris, 51–97. Chicago: Univ. of Chicago Press.

Sophisticated article that grounds its understanding of police work, organizations, and reform within broader theories of social organization and formal organizations.

Walker, Samuel, and Charles M. Katz. 2007. The police in America: An introduction . 6th ed. Boston: McGraw Hill.

This textbook is well organized, easy to read, and excellent for identifying important issues in policing. Recommended for undergraduates enrolled in introductory policing courses.

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What is the Importance of Law Enforcement?

From police officers to drug enforcement agents, parole officers to security guards, law enforcement professionals’ core mission is to protect and serve the public.

These professionals keep our neighborhoods, cities, states, and countries safe from crime and other unwelcome events. They are also a vital component of the more extensive, three-part criminal justice system , which consists of law enforcement (catching criminals), courts (delivering justice in the court of law), and corrections (working with criminals).

Yet, when thinking of ways to rebuild society, many ask the question, “What is the importance of law enforcement?”

This article will discuss the role of law enforcement in today’s criminal justice system and explain how candidates can choose to make a meaningful difference in the world by earning a Criminal Justice degree.

Why is Law Enforcement Important?

The criminal justice system attempts to deliver “justice for all” by protecting victims, convicting criminals, and presiding over due process of law for those accused of crimes in hopes of keeping society safe through these means.

Inside the criminal justice system are those who work to keep it afloat, such as law enforcement officers , first responders, and others working to investigate crimes, gather and protect evidence, and respond to reports of various crimes.

Without law enforcement and our criminal justice system , there is a possibility of rampant havoc, violence, theft, and danger everywhere we turn. Law enforcement professionals can take pride and satisfaction in their work to keep society safe and those responsible for crimes accountable for their actions.

What Do Law Enforcement Professionals Do?

For those interested in serving and protecting the public, a career as a law enforcement officer might be a great choice. Law enforcement officers maintain order, solve crimes, and establish trust and respect between communities, institutions, and the individuals they serve.

While day-to-day day activities vary, especially when responding to emergencies, this line of work can involve:

• Informing the public about policies, services, or procedures
• Investigating illegal or suspicious activities
• Apprehending criminal suspects
• Escorting prisoners
• Preparing incident or investigation reports
• Serving court-ordered documents
• Testifying during legal proceedings

Furthermore, there are a variety of job opportunities in the criminal justice system, and law enforcement is no different.

Possible positions and job descriptions include:

1. Police Officers. Police officers operate primarily at the local level in cities and towns, though some receive particular geographic jurisdiction, like working for public school districts or transportation systems. They protect lives and property and can expect to earn a median annual salary of $69,160 , as reported by the U.S. Bureau of Labor Statistics (BLS).

2. State Troopers. As state police officers, state troopers patrol state highways, enforce driving laws, and arrest criminals at the state level.

3. Drug Enforcement Agents (DEA). Employed at the federal level, drug enforcement agents (DEA) are on the frontlines of drug investigations and responsible for seizing and disrupting drug trafficking across the United States.

4. Fish and Game Wardens. These individuals work outdoors in forest preserves, public waterways, and national parks. Fish and game wardens make sure that the wildlife, natural habitats, and visitors are protected and safe.

5. Security Guards. Security guards can be employed at small and large organizations and facilities as well as by individuals. Like many law enforcement positions, they protect specific people and property.

How to Make an Impact and Start a Career in Law Enforcement

If you want to serve your community, build a dynamic and exciting career, and are passionate about ensuring the safety and security of others, you should consider a career in law enforcement. This often starts by earning a Criminal Justice degree.

An accredited, career-focused Criminal Justice program equips candidates with the tools needed for success in this line of work. Students in these programs receive specialized training to help them conduct investigations while staying mindful of the social, historical, and societal factors that inform modern police work.

Depending on their goals and timeline, students interested in a career in law enforcement will typically choose between an associate degree in Criminal Justice or a Bachelor’s degree in Public Safety and Security.

Associate degrees in Criminal Justice prepare students for the ins and outs of the criminal justice system by offering courses in modern law enforcement, emergency response, security, contemporary policing issues, computer crime, and more. With classes taught by police commanders, detectives, state troopers, military veterans, and other experts, students learn from first-hand experience and insight into the realities of law enforcement.

Considering a career in Criminal Justice? Check out our AS in Criminal Justice Get Started Guide to learn more about Goodwin University’s curriculum, class formats, and more!

Bachelor’s degrees in Public Safety and Security also enable individuals to make a difference in their communities by preparing students to make life-saving changes in critical situations. Students develop skills in evidence-based decision-making, risk management and assessment, policy analysis, and safety and security.

Regardless of which one you choose, Criminal Justice programs prepare students to become protectors of the vulnerable, keeping people safe and out of danger. Plus, both programs at Goodwin University are flexible, affordable, and career-focused, with day and evening classes available to fit students’ needs and schedules.

If you are ready to make a positive change in your community, check out our criminal justice guide and apply today . Or, contact us for more information about our Associate in Criminal Justice or our Bachelor’s in Public Safety and Security.

Financial aid is available, and we are ready to help you get through college and into a great career. We can’t wait to help you!

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Law Enforcement Approaches for Reducing Gun Violence

By Samuel Peterson , Shawn Bushway

April 22, 2020

Summary: Law enforcement agencies use a range of reactive and proactive strategies to respond to and prevent gun crime. While the rate of violent crimes committed with guns has declined substantially over the past 30 years, more research is needed on which approaches are most effective at reducing gun crime.

The national policy discourse on ways to further reduce gun violence focuses on either enhancing existing laws or passing new laws that could prevent violent crimes committed with guns (e.g., homicides, assaults, robberies) or other forms of gun violence (e.g., fatal and nonfatal firearm suicides, gun accidents). Such policies include universal background checks, bans on assault weapons and high-capacity magazines, extreme-risk protection orders, concealed-carry laws, waiting periods, child-access prevention (CAP) laws, minimum age requirements, prohibitions associated with domestic violence, licensing and permitting requirements, and a host of other laws and policies covered elsewhere in RAND’s Gun Policy in America project.

Debate about new policies rarely includes explicit discussion of what law enforcement is currently doing, under existing laws, to reduce violent crimes committed with guns. However, the rate at which violent crimes are committed with guns has declined substantially over the past 30 years. For example, the homicide rate, which is dominated by crimes that involve firearms, has dropped by 50 percent since 1980, with a large portion of that drop occurring from 1993 to 2014 (James, 2018). Although it can be hard to empirically prove that law enforcement actions caused the decline, most commentators conclude that at least some of this drop was caused by the response of law enforcement (Uggen and McElrath, 2013).

In this essay, we review the range of law enforcement activities focused on enforcing laws that govern the criminal misuse of guns (e.g., illegal possession) and violent crimes committed with guns (e.g., homicides, assaults, and robberies committed with firearms). We also comment on the existing research evidence. [1]

A convenient way to structure our tour of law enforcement activities is to divide our attention between standard (or traditional) law enforcement activities and proactive strategies. Standard law enforcement approaches involve monitoring and reacting to law violations when they occur; [2] proactive approaches involve a range of activities that seek to stop crimes before they occur. Both approaches aim to prevent crime in general. We first review standard law enforcement approaches, including enforcement of existing firearm laws and regulations and the response to individual crimes involving guns (e.g., the investigation and prosecution of such crimes). We then review proactive violent crime reduction and prevention interventions, which occasionally focus on violent crimes committed with guns. [3]

Standard Law Enforcement Approaches

The standard model of policing emphasizes random patrols, rapid response to 911 calls, and investigations of reported crimes (with the arrest of the perpetrator as the likely outcome). Enforcing firearm possession laws and responding to, investigating, and prosecuting gun crimes fit under this standard model. In this approach, increasing the number of law enforcement officers is the primary way to increase performance or enforcement (Weisburd and Eck, 2004). Both local and federal law enforcement have important, but differing, roles within the standard approach in enforcing gun laws and investigating gun crimes (see table below).

Standard Law Enforcement Approaches to Address Criminal Gun Misuse and Violent Crimes Committed with Guns

Regulatory and criminal enforcement of ownership and sales.

Some law enforcement responsibilities listed in the table above include regulatory activities for limiting the criminal misuse of guns. [4] At the federal level, two agencies—the Federal Bureau of Investigation (FBI) and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF)—engage in a variety of activities related to guns and gun crime, largely in the form of enforcing regulations and performing investigations. On the regulatory side, the FBI oversees the NICS, and the ATF regulates federal firearms licensees (FFLs) by processing licenses, conducting inspections, and tracking national firearm commerce. The NICS is a national resource that helps ensure that people legally excluded from purchasing a firearm are detected during a background check. In 2018 alone, more than 25 million background checks were conducted through the NICS. Meanwhile, the ATF is tasked with inspecting the 130,000 FFLs in the United States. It inspects roughly 8 percent of these FFLs per year, which results in a license revocation or surrender for roughly 1 percent of the FFLs inspected. In 2018, 42 percent of inspected FFLs were found to have no violations, 18 percent had a violation reported, 11 percent received a warning letter, and nearly 4 percent participated in a warning conference (ATF, 2019a). Local and state law enforcement agencies also engage in such state-specific regulatory activities as issuing concealed-carry permits or firearm purchase permits; they also may conduct background checks themselves.

A related function is the enforcement of criminal gun possession and trafficking laws on illegal firearm transfers, prohibited possessors, and prohibited locations. This includes ensuring that firearms are sold and handled appropriately and are owned legally. Firearms may be obtained illegally or by prohibited possessors through a variety of mechanisms; however, a firearm can go through several transactions (some of them legal) before ending up in the hands of a prohibited possessor. In surveys of offenders who committed crimes with a gun, friends and family were the most common source of the gun involved. The next most common sources were illicit sources (e.g., middlemen for stolen goods, sometimes called fences ; street connections; drug dealers) and unlicensed gun stores or pawn shops (Cook, Parker, and Pollack, 2015).

At the federal level, enforcement can include investigating FFLs suspected of engaging in criminal activity, investigating interstate gun trafficking, and supporting local investigations of intrastate trafficking. At the local level, this might involve enforcing laws associated with firearm storage or arresting prohibited possessors. This local enforcement of criminal gun possession laws tends to vary dramatically across jurisdictions. In a survey of urban police agencies, 38 percent of police departments reported that their locality requires background checks for all firearm transfers; of those departments, 28 percent reported frequently or regularly investigating illegal firearm transfers, and 32 percent never investigated potentially illegal transfers (Koper, Woods, and Kubu, 2013). One-third of agencies reported receiving information about individuals prohibited from purchasing firearms who nevertheless attempted to buy one (potentially a felony). Of those departments, 45 percent reported regular follow-up on those cases, and 47 percent reported occasional follow-up. The effects of this enforcement of criminal gun possession and trafficking are unclear, because there is no research that examines how violent crimes committed with guns might be reduced through more-proactive enforcement and prosecution of gun law violations (Cook, Pollack, and White, 2019).

Random Patrol

The more-common aspects of the standard police response—specifically, the random patrol and arrest functions—are unlikely to contribute to substantial reductions in crimes committed with guns. The weakness of the standard policing model for reducing crime was evident in the mid-1970s (e.g., see the results of the Kansas City Preventive Patrol Experiment; Kelling et al., 1974). While patrol is a necessary function of policing, it is now commonly recognized that patrol strategies should be systematic and data-driven (Koper, 1995). Much of this realization came from research in the late 1980s and early 1990s showing that most calls for service and criminal incidents occur at a small number of locations within a city and that these “hot spots” of crime tend to be stable over time (Sherman, Gartin, and Buerger, 1989; Weisburd et al., 2004).

Responding to and Investigating Violent Crimes Committed with Guns

Federal and local law enforcement agencies respond to violent crimes committed with guns in several ways. The FBI and the ATF are involved in investigations of gun trafficking, terrorism, and mass violence. The ATF also supports investigations by tracing the ownership of firearms involved in crimes (through the National Tracing Center) and by maintaining the NIBIN, which helps link guns to offenders or to multiple crimes. Gun tracing is useful for understanding the impact of laws on the source of guns (Collins et al., 2018), as well as for identifying common features or sources involved in the time-to-crime life cycle of guns. Occasionally, traces lead back to FFL dealers who are engaged in illegal or negligent activity or to straw purchases associated with gun crimes. [5] The ATF successfully traced 254,700 firearms in 2018. The use of both the NIBIN and the National Tracing Center has generally increased over time, but we do not know whether the use of these federal resources has significantly improved investigation success rates or led to reductions in violent crimes committed with guns. However, enhanced federal prosecution of violent offenders who commit crimes with guns is potentially effective, as we discuss later.

Importantly, the enforcement and prosecution of gun crimes may affect rates of violent crimes committed with guns. Police departments that arrest those engaging in violent crimes involving a gun might be expected to reduce community gun violence by incapacitating offenders at high risk of reoffending and by deterring future offenders. Moreover, as Cook and Ludwig (2018) argue, low clearance rates may encourage vigilante justice: “Arresting less than 10 percent of shooters (as is currently the case in Chicago) may not assuage the instinct of survivors, their families, and their gangs to avenge their victimization.” [6] Although national estimates may not be exact, roughly 60 percent of homicides are cleared in any given year through arrest or other circumstances; this percentage appears to be decreasing over time (Murder Accountability Project, 2019). Similarly, national estimates of nonfatal shootings and nonfatal shooting clearances are lacking, but most indicators suggest that the frequency of nonfatal shootings is much higher than that of fatal shootings, and that clearance of nonfatal shootings is much lower than clearance of homicides (performed with guns or other weapons).

Some recent research evidence suggests that a key reason for this gap in homicide clearance compared with nonfatal shooting clearance is the amount of resources dedicated to the initial response to and sustained investigation of homicides (Cook et al., 2019). Not surprisingly, in this analysis of homicides and nonfatal shootings in one city, increased resources devoted to homicide investigations produced more on-scene and postscene evidence collection, including witnesses interviewed, forensic evidence collected, and existing records reviewed (e.g., existing search warrants). The collection of more evidence is generally associated with increased clearance. Additional resources, better on-scene evidence collection, and more postscene evidence collection or forensic testing for homicide investigations are also associated with improved outcomes (Braga, Turchan, and Barao, 2019). With wide variability in clearance rates across localities (e.g., some clear more than 80 percent of homicides; Carter, 2013), cross-jurisdictional comparisons may be insightful. Much more research is needed in this area.

Many of the standard law enforcement approaches are important activities in their own regard and logically affect crime through deterrence and incapacitation. However, the extent to which certain elements of standard policing practices—such as the consistent enforcement of gun laws, improvements in violent crime investigations and clearance rates, or an increase in the role of federal enforcement activities—are related to violent crimes committed with guns is in need of further research.

Proactive Law Enforcement Approaches

During the peak violent crime years of the 1980s, law enforcement agencies started to experiment with more-proactive ways to reduce crime using methods that better focused limited resources. We now consider proactive policing strategies that have been designed to prevent or reduce crime and note where their effects on violent crimes or violent crimes committed with guns have been evaluated empirically. Many evaluations of these strategies do not differentiate violent crimes from violent crimes involving a gun. Although guns are very likely to be involved in violent crimes (e.g., homicides, armed robberies), without specified data, we cannot detect any specific effects on crimes committed with firearms. Therefore, we know considerably less about how some of the strategies discussed in this section affect violent crime involving a gun as opposed to violent crime in general.

For our discussion of proactive law enforcement approaches, we follow the general framework adopted for a recent consensus panel report by the National Academies of Sciences, Engineering, and Medicine (2018) on proactive policing. This important report categorizes and describes four approaches to proactive policing:

• place-based: focuses on the places where the most violent crimes committed with guns occur
• problem-solving: addresses the underlying cause(s) of violent crimes committed with guns
• person-focused: focuses on individuals at high risk of being perpetrators or victims of violent crimes committed with guns
• community-based: uses community resources (and social connections) to counter violent crimes committed with guns and narratives supportive of such crimes.

Each of these proactive approaches has unique implementation considerations and varies with regard to the existing research evidence. Many proactive approaches overlap and can be placed in more than one of the categories. Therefore, we categorize the proactive approaches discussed in the following sections where they seem to fit best, but ours should not be considered a rigid classification.

Place-Based Approaches

Place-based approaches are predicated on the fact that crime concentrates in small geographic areas. Likewise, violent crime is not evenly distributed across communities and their populations. Typically, a large share of violent crime is associated with a small group of locations. Whether those are measured as “hot spots,” street segments, or neighborhoods, a small proportion of locations typically account for a majority of the violent crime that occurs within a city (Corsaro, 2018; Wilcox and Eck, 2011). Many violent crime prevention strategies in policing take advantage of this clustering by intervening with the subgroup of people responsible for a large share of the violence, with the locations where violent crime is most prevalent (i.e., hot spots), or with both.

Hot spot policing approaches focus on high-risk locations; many of the earliest versions of hot spot policing attempted to reduce violent crimes committed with guns through traditional law enforcement responses. These versions consist largely of stops and arrests in identified hot spots. Strategies include directed patrols, crackdowns on illegal weapon-carrying, and a focus on known offenders in hot spot locations.

In directed patrols, or “putting cops on dots,” patrol officers are assigned specific periods during which they must patrol a known high crime location (e.g., street corner, street block). Generally, this involves practicing the “Koper curve”—conducting random, 10- to 15-minute patrols in hot spots every two hours, instead of focusing only on stops and misdemeanor arrests or staying in a particular spot for long periods of time (Koper, 1995). More-recent evidence suggests that frequency of patrols, rather than duration, might be more important (Mitchell, 2017), but the overall evidence suggests that directed patrols can reduce violent crimes and violent crimes committed with guns, depending on the focus of the hot spot intervention (Braga, Papachristos, and Hureau, 2014).

Like directed patrols, crackdowns emphasize stops, searches, and arrests in hot spots, but they usually occur on a large scale and typically focus on specific problems in those areas (e.g., drug dealing, weapon-carrying). A review of hot spot crackdowns on illegal weapon-carrying found that this approach is generally associated with modest reductions in gun crimes, violent crimes committed with guns, and 911 calls for shots fired (Koper and Mayo-Wilson, 2006; see also Koper, Mayo-Wilson, and Smith, 2012). The long-term effects of these types of efforts are not well understood, but there is evidence that their effects might be short-lived (Koper, Mayo-Wilson, and Smith, 2012; Rosenfeld and Fornango, 2014; Sherman, 1990); more importantly, such efforts often contribute to police-community tensions when enacted too broadly, for too long, or without providing explanation to the community (Tyler, Fagan, and Geller, 2014). Indeed, community frustration with stop-and-frisk practices resulted in a federal judge finding the New York City Police Department liable for a pattern and practice of racial profiling and unconstitutional stops in 2013.

Another common type of place-based intervention focuses on offenders who live or gather in violent crime hot spots. As part of the Philadelphia Policing Tactics Experiment, the Philadelphia Police Department used crime analysts to identify repeat violent offenders who were living in or committing crime in violent crime hot spots. Officers then patrolled these areas and stopped and questioned repeat violent offenders. The nature of these contacts ranged from having informal conversations to serving arrest warrants. The results of a randomized controlled trial indicated that there was a 42-percent reduction in violent crimes (but not specifically in those committed with guns) and a 50-percent reduction in violent felonies relative to the control areas, which received random patrols (Groff et al., 2015).

Other place-based approaches reflect recent technological innovations. Closed-circuit television (CCTV), acoustic gunshot detection technology, and predictive policing are increasingly used to surveil and predict high crime locations. There is a substantial amount of research examining the effect of CCTV for preventing crime, and it is indicative of modest reductions in crime in general (Welsh and Farrington, 2009). The effect of CCTV on violent crimes and violent crimes committed with guns, however, is less clear. Acoustic gunshot detection technology can be used in conjunction with CCTV to detect and respond to shootings or criminal discharges of a firearm. Acoustic sensors are strategically placed in areas with high levels of shootings or violent crimes committed with guns, and advanced software is used to distinguish gunshots from other environmental noise. When gunshots are detected, an automatic alert is sent to law enforcement. The intention is to allow quicker response times to shootings in certain areas, but gunshot detection systems are typically associated with an increase in workload (which may be caused by false positives; Ratcliffe et al., 2019) and only slight improvements in response times (Mazerolle et al., 1998). There is little evidence that this method improves investigations or reduces violent crimes committed with guns (Mares and Blackburn, 2012).

Predictive policing uses historical crime data to identify locations and times in which particular crimes are most likely to occur. These predictions are then used to conduct hot spot patrols or inform other strategies. The research on predictive policing is limited, and the evidence that it reduces violent crimes is lacking. CCTV, acoustic gunshot detection, and predictive policing may lack effectiveness as stand-alone strategies, and they likely need to be used in conjunction with other strategies to effectively reduce violent crimes (Piza et al., 2015; Saunders, Hunt, and Hollywood, 2016).

One issue with place-based approaches to reducing violent crimes committed with guns is that it is difficult to know who to intervene with in target areas or hot spots (with the possible exception of offender-focused hot spot policing). This can lead to overenforcement or a “whack-a-mole” strategy, in which prioritizing certain areas leads to underenforcement of other problematic areas (Wang, Liu, and Eck, 2014). These issues, as well as intervention intensity, are particularly relevant when thinking about large-scale implementation of these kinds of approaches (Blattman et al., 2019; Collazos et al., 2020). In addition, place-based approaches that use traditional law enforcement tactics like those discussed earlier (e.g., arrest) tend to ignore the conditions that support crime at a particular location. For example, there are plenty of factors (e.g., the presence of payday lending facilities, alcohol outlets, motels, public high schools, or abandoned buildings) that have been shown to contribute to violent crimes that are not typically within the purview of police (Wilcox and Eck, 2011). Traditional policing responses within a place-based approach may be useful for targeting crimes at the worst-affected locations, but the underlying problems contributing to those crimes may go unaddressed. (Law enforcement and other elements of the criminal justice system are generally unable to effect change in the structural causes of crime and violence, such as poverty, joblessness, and concentrated disadvantage.) Addressing the criminogenic factors that police can affect (e.g., access control, lack of place management, lack of surveillance) could, in theory, lead to long-term crime prevention and eliminate the need for intensive police patrols and high arrest rates.

Problem-Solving Approaches

Problem-solving approaches address critiques of place-based policing by attempting to fix the conditions that contribute to crime in an area through a structured problem-solving process. One of the most popular problem-solving approaches is the Scanning, Analysis, Response, and Assessment (SARA) model (Eck and Spelman, 1987). The model is supposed to support an active and ongoing process that involves identifying problems (Scanning), understanding the nature of a problem through data and diverse perspectives (Analysis), developing and implementing solutions (Response), and evaluating whether the solutions were effective (Assessment). Problem-oriented policing (POP) and third-party policing are commonly used problem-solving strategies that may result from a structured problem-solving process, and they often complement one another. The main difference is that third-party policing includes the involvement of a non–law enforcement entity (e.g., property managers, parents, inspectors, civil ordinances) to exert social control and to prevent crime.

Reviews of POP in eight cities suggest that it is modestly successful at reducing crime (corresponding to a reduction of crime to 77 percent of preintervention levels, n = 11), with some evidence of reductions in violent crimes (corresponding to a reduction of violent crimes, but not specifically those committed with guns, to 81 percent of preintervention levels, n = 7) (Braga, Papachristos, and Hureau, 2014). Although there is the potential for different solutions to be implemented within the same POP strategy (one program evaluation noted 400 unique strategies; Braga, Hureau, and Papachristos, 2012), POP solutions associated with violent crime reductions seem to generally involve innovative approaches to addressing disorder and engaging the community in hot spots. The solutions often use a combination of enforcement, prevention, and other city services. Part of the appeal of problem-oriented approaches is that they often use police power to do something other than arrest people. For example, consider Operation Cul-de-Sac, which was implemented in Los Angeles in 1990. Law enforcement recognized that a substantial proportion of gang violence was happening in one cluster of neighborhoods, largely in the form of drive-by shootings. Hot spot policing would have stopped here, sending officers to the identified areas to patrol or arrest gun offenders. In this case, however, further geospatial analysis showed that many such locations were on the periphery of a neighborhood near a main thoroughfare—ideal for both drug dealing and quickly leaving the scene of a crime. Using a nontraditional response, the Los Angeles Police Department had traffic barriers installed in specific locations to block drive-through traffic. This is a good example of the complementary nature of problem-oriented and third-party approaches, where the police used what essentially amounts to traffic control and employed external resources to add a level of permanence to that control. An evaluation indicated that gang crime, drive-by shootings, and predatory crime were significantly reduced after the start of the program; crime reduction effects diminished after the barriers were eventually withdrawn (Lasley, 1996).

Examples of POP using leverage from noncriminal regulations to create third-party solutions include getting owners to remediate blighted buildings; removing litter, graffiti, and trash from the area; abating nuisances; and improving street lighting. Given the local nature of crime, nuisance abatement can be an effective solution if high crime properties are identified with problem tenants or poor management. For example, after identifying that several motels were associated with high rates of drug and violent crime calls for service, the Chula Vista Police Department identified that poor property management may have been a source of these problems (Bichler, Schmerler, and Enriquez, 2013). The department engaged property owners by providing information and support, used code enforcement and inspection as necessary, and developed a permit ordinance focused on safety standards. Other property management solutions have focused on problematic bars that have high levels of violent crimes, encouraging management to take steps to curb overconsumption, improving security staff training, and setting clear standards for behavior (Madensen and Eck, 2008; Roncek and Maier, 1991; Warburton and Shepherd, 2006).

The POP approach has also been used to disrupt illegal gun markets (Braga and Pierce, 2005). In their analysis of recovered guns, the Boston Police Department, the ATF, and researchers identified that the illegal diversion of handguns from retail outlets was a key source of firearms used in crimes. This resulted in a strategy that involved increased resources and attention to the traffickers providing the makes and calibers most frequently recovered from gang members, increased attention to handguns recovered shortly after being sold, the restoration of obliterated serial numbers, debriefs with arrestees to understand firearm pathways and develop leads, and communication about successful interventions of traffickers. Straw purchasers and unlicensed dealers made up the bulk of those investigated for trafficking. This market interruption strategy significantly reduced the number of recovered firearms that had recently been purchased (i.e., were less than three years old).

POP is a promising strategy for crime reduction and can be used as part of a place-based approach to reduce violent crimes and violent crimes committed with guns. A key benefit of POP is that it adds new and sometimes effective crime prevention tools to traditional law enforcement responses, often through bringing attention to problems that can be remedied through third parties, such as other government and community resources (e.g., removing blight). However, there are two open questions regarding the implementation of POP to address violent crimes committed with guns.

First, the approach is open-ended, often resulting in law enforcement attempting multiple interventions in their problem-solving response formulations. This makes it difficult to identify which solutions work better than others, especially because systematic data collection on problem-solving activities tends to be limited (Maguire, Uchida, and Hassell, 2015). Second, there is some research indicating that problem-solving processes (e.g., SARA) are frequently superficial when implemented in the field (Sidebottom and Tilley, 2011). That is, patrol officers may not conduct thorough analysis of identified problems or may not conduct any assessment at all (Cordner and Biebel, 2005). Engaging in these activities, presumably, is critical for engaging in an iterative problem-solving process. In addition, and possibly as a result of superficial analysis and response generation, officers pursuing POP strategies may still rely more on standard law enforcement responses than on those designed to produce lasting change (Schnobrich-Davis, Block, and Lupacchino, 2018). More research and more-rigorous research are still needed to understand which POP responses are most effective, particularly for reducing violent crimes committed with guns.

Performing homicide and shooting reviews is a problem-solving strategy that has also been used to reduce homicides and shootings, either alone or in conjunction with a focused deterrence strategy, which is discussed in the next section. For instance, the strategy adopted by Milwaukee’s Homicide Review Commission was associated with a 52-percent reduction in homicides in the targeted area compared with a 9-percent reduction in the comparison area (Azrael, Braga, and O’Brien, 2013). The first step in the Milwaukee Homicide Review Commission’s strategy involves immediate responses to homicide incidents, including increased patrols, and social services for victims and victims’ families. The next component is a review of homicide (and usually shooting) cases using a multiagency working group, including police, probation officers, the district attorney, the city attorney, a U.S. attorney, public schools, the housing authority, the medical examiner, the department of corrections, the U.S. Marshals, the Drug Enforcement Administration, the FBI, the Milwaukee High Intensity Drug Trafficking Area, and the ATF. These reviews focus on describing the incidents using any pertinent information provided by the working group to strengthen investigations and increase clearance rates. Later, closed cases are reviewed by community service agencies and discussed in community reviews to identify community factors that are involved in homicides and shootings. These reviews led to interventions to address disorderly taverns and other nuisance properties, as well as enhanced supervision of high-risk offenders (15 percent of victims and 25 percent of suspects had been on supervision at the time of the homicide; close to half had been on probation at some point). This enhanced supervision reportedly included a focused deterrence approach (also known as a “pulling levers” approach), which communicates a clear deterrent message of an enhanced law enforcement response (i.e., “pulling every lever”) for specified behaviors.

Homicide and shooting reviews are recommended tools to improve intelligence-gathering, problem-solving, and information-sharing (Hipple et al., 2017). They may help law enforcement better understand the factors present in homicide and shooting incidents, such as gang member involvement, or location features, such as gang territory or nuisance locations (e.g., hourly motels, problematic bars). Although guidance exists for conducting these reviews (e.g., Braga, Hureau, and Grossman, 2014), more-rigorous research is needed to demonstrate their value and mechanisms of impact, whether through increases in case clearance or as part of a planned intervention to reduce violent crimes committed with guns.

Person-Focused Approaches

Civil gang injunctions and hot lists.

One person-focused approach that focuses specifically on gang members and has been in use since the late 1980s is the civil gang injunction (CGI). CGIs prohibit gang members from engaging in a variety of legal and illegal behaviors, including associating with other gang members in public. Much like the approach of nuisance abatement, CGIs allow for civil penalties against individuals engaged in prohibited behavior, which often includes possessing any firearms, ammunition, or illegal weapons or being around others with such weapons. Prosecutors and law enforcement work to map safety zones wherein these behaviors are illegal and identify individuals and gangs included in the CGI. CGIs are indefinite, but individuals are able to petition to have their names removed from the list. The effects of CGIs on violent crime appear to be mixed, with their effects being short-lived (Grogger, 2002; Maxson, Hennigan, and Sloane, 2005) or even increasing gang violence (Bichler et al., 2019), although CGIs may be useful as part of a broader strategy (Hennigan and Sloane, 2013). The mixed findings, however, prompt questions about CGIs’ usefulness, in addition to questions about the substantial restrictions they place on individual liberty (Caldwell, 2009).

A somewhat less intrusive approach to focusing on high-risk individuals is to use intelligence-gathering or actuarial risk assessments to generate lists of individuals who are at high risk of being involved in violent crimes (i.e., “hot lists”). Sometimes, these lists are created and amended based on officer knowledge, but the recent trend involves using police data (e.g., arrests, field contact cards, or stops) and occasionally nonpolice data to generate a numeric indication of risk. This calculation is often based on an individual’s police records, as well as those of his or her associates. Because involvement in violent crime is rare, being a victim or perpetrator of violent crime or being connected to a victim or perpetrator of violent crime substantially increases individual risk. Individuals with scores above a certain threshold are targeted for intervention. A review of Chicago’s predictive policing hot list suggests that much more research is needed to improve the accuracy of actuarial risk in the context of involvement in violent crimes committed with guns and that the use of such approaches should be part of a coherent violent crime reduction strategy (Saunders et al., 2016). There are also serious concerns about the potential for bias in actuarial assessments of risk, especially because some of the predictive algorithms are proprietary and not subject to public scrutiny (Degeling and Berendt, 2018).

Enhanced Prosecution of Felony Possession

One formative approach to reduce violent crimes committed with guns that set the stage for later approaches is Project Exile. Project Exile and similar programs specifically focus on enhanced prosecution, particularly federal prosecution, for felons in possession of firearms. Federal prosecution is often considered a valuable deterrent because federal court can sometimes impose longer prison sentences than state courts can. Lengthy sentences are often presented as achieving two aims in addressing gun crimes: (1) incapacitating incarcerated gun users for longer periods, preventing them from committing new gun crimes, and (2) deterring would-be violent criminals. The research evidence regarding the effectiveness of this approach is mixed, with only some studies finding support (Raphael and Ludwig, 2003; Rosenfeld, Fornango, and Baumer, 2005). Moreover, even the potential deterrent effect of this approach has been questioned by new criminological deterrence research that shows that many crime-prone populations, such as young men, do not consider consequences very far into the future (Doob and Webster, 2003; Durlauf and Nagin, 2011; Nagin, 2013; Paternoster, 1987). From this perspective, policies that increase the certainty of punishment are likely to be more salient than policies that increase already lengthy sentences. Because of this research, newer person-focused programs typically focus less on enhanced prosecution penalties.

Project Safe Neighborhoods

The largest person-focused brand name program, known as Project Safe Neighborhoods (PSN), has received more than $1.5 billion in federal funding since 2001 and is currently active (McGarrell et al., 2010; McGarrell, 2018). Because related programs operate through the U.S. Department of Justice, the U.S. District Attorney’s office is either responsible for or expected to be involved in the grant activities. Therefore, an oft-stated program element for many PSN programs is enhanced federal prosecution of violent gun offenders. The hallmarks of any PSN program are interagency law enforcement partnerships (i.e., task forces), data-driven processes, deterrence-based messaging, and focused enforcement and accountability (usually on gun offenders) (McGarrell, 2018). PSN programs can use a variety of collaborative strategies, including enhanced federal prosecution, enhanced state and local prosecution, law enforcement (e.g., directed patrol), parole and probation integration, community programs, gun trafficking interventions, and gang or criminal organization interventions.

The research evidence examining the effectiveness of PSN comes from multisite evaluations that use weak quasi-experimental designs, such as those comparing sites receiving the intervention with other sites that are not matched in terms of crime trends, demographics, or other factors relevant to violent crime risk. Thus, the evidence concerning PSN interventions is necessarily weak. Nevertheless, an analysis of PSN across 82 cities from 2001 to 2006 revealed an associated 13.1-percent reduction in violent crimes and a 10.5-percent reduction in firearm homicides, but only for “high dosage” sites (McGarrell et al., 2010). Although “dosage” (a combination of collaborative implementation, research integration into strategic planning, and enhanced federal prosecution) was found to be an important element of success, this study did not assess whether certain PSN strategies were associated with larger reductions in crime than others. Therefore, it is unclear whether focused deterrence or enhanced prosecution (and offender incapacitation) alone might be effective in reducing violent crimes.

Focused Deterrence

Currently, the most promising person-focused approach for reducing violent crimes committed with guns is “pulling levers,” or focused deterrence, which is included in the PSN suite. This strategy has been implemented in many cities across the United States, and it is associated with favorable evaluation evidence overall. Focused deterrence can be considered a form of POP (Tillyer and Kennedy, 2008) because it requires a strong understanding of the problem with ongoing analysis; develops a tailored intervention based on the nature of the problem and the local resources (e.g., intervening with youth versus adults, considering probation issues); and requires an ongoing assessment of outputs, ideally with an appropriate outcome evaluation design.

Key features of the focused deterrence approach include a direct intervention with individuals who (1) are well-known to police, (2) commit a disproportionate share of crime, (3) are likely under criminal justice supervision, and (4) frequently operate in groups that influence and could thus hypothetically change group member behavior (Kennedy, 1996). In addition, focused deterrence programs address specific behaviors. Thus, there is a focus on specific individuals committing specific crimes (e.g., homicide, open-air drug dealing).

The intervention involves direct police communication with identified high-risk individuals about the consequences should they engage in specific proscribed behaviors. These communications usually occur through offender notification meetings or call-ins. The law enforcement message for a group-based focused deterrence call-in includes the following steps:

• informing an individual that he or she has been identified as at high risk for engaging in or being the victim of a fatal or nonfatal shooting
• stating that law enforcement is now focusing on homicides and shootings
• stating that subsequent acts of violence will result in immediate action from law enforcement (or probation officials) in the form of increased attention and enforcement for the whole group.

The call-in may include an example of group members from a previous call-in who did not heed the message. This message is intended to change the individuals’ perceptions of risk of apprehension and to induce group pressure to avoid committing violence. These messages may also be distributed to the public via radio or television. Call-ins also include speakers who represent the community, murder victims, and social services, who serve to challenge norms that encourage violence and offer alternative behaviors (National Network for Safe Communities, 2016). Many focused deterrence programs incorporate intervention components from other entities, such as criminal justice supervision (e.g., probation, parole, reentry), social services, and the community. For instance, some focused deterrence efforts use a community moral voice or outreach worker component to communicate messages of the harm caused by shootings and to counter the narratives that support street violence. Whether these components contribute to the effectiveness of focused deterrence has not been evaluated.

Versions of this focused deterrence approach have been implemented in many cities but have yet to be subjected to randomized controlled trials, the gold standard for evaluating the effects of a program. Braga, Weisburd, and Turchan (2018) recently updated their prior meta-analysis of focused deterrence interventions ( n = 24) and found the approach to have “moderate effects” on violent crimes committed with guns, corresponding to a reduction to 62 percent of preintervention levels of violent crimes committed with guns. Programs that focused on groups and gangs tended to be more effective, but programs focused on high-rate offenders have also been successful (Papachristos, Meares, and Fagan, 2007).

Although the current research evidence is suggestive of significant reductions in violent gun crime, more-rigorous evaluation designs may more accurately reveal the magnitude of the true effect, given that stronger designs tend to show weaker effects (Braga and Weisburd, 2014; Braga et al., 2019). Some researchers have already begun employing more-rigorous quasi-experimental methods, with evidence of small but significant effects (Braga, Hureau, and Papachristos, 2014; Braga et al., 2019).

It is also important to begin to isolate the mechanisms by which focused deterrence might have effects. Braga (2012) discusses how most of the evaluation research on focused deterrence does not discuss the actions that contribute to reductions in violent gun crime and speculates that a wider set of mechanisms might be implicated than just those described as components of the intervention. For instance, procedural fairness, community social control, and incapacitation may play important roles beyond those features of the intervention that are explicitly parts of its design. Saunders et al. (2016) examined some of these potential mechanisms of effect for a deterrence program that focused on overt drug markets and chronic offenders within those markets. They found that community members perceived both that enforcement action incapacitated the drug market and that police were more effective, which may have improved willingness to cooperate with police. Residents did not often report improved perceptions of community social control and police legitimacy, with some negative perceptions reported (e.g., police harassment). Because the various components of focused deterrence are expected to be implemented together (e.g., direct communication, enforcement action, services), a good starting point for improved evaluation might include more-detailed measurement of program inputs, which can be modeled as part of the evaluation to understand whether certain components are more important than others (Roman et al., 2018).

Measuring the mechanisms and dosage of focused deterrence over time speaks to the final critical issue for its success—sustainability. Sustainability is a major concern for both PSN and focused deterrence programs (McGarrell et al., 2010). Several evaluations have noted that the effects appear to be short-lived. Fox and Novak (2018), in a recent evaluation of Kansas City’s focused deterrence program, found that there was an immediate reduction in homicides and gun-involved aggravated assaults during the first 12 months of the intervention, but these rates returned to pre-intervention levels three years into the program. Similarly, Grunwald and Papachristos (2017) found that the significant effects of PSN in Chicago were only evident during the first several years of the program. Unlike Fox and Novak (2018), however, Grunwald and Papachristos speculate that this was caused by program expansion that did not include an expansion of resources, reducing the intervention dosage. Even the highly successful and acclaimed Boston Ceasefire, also known as the Boston Miracle, was abandoned (and later revived), with corresponding increases (and decreases) in violent crimes committed with guns (Braga, Hureau, and Winship, 2008; Braga, Hureau, and Papachristos, 2014). Such an ebb-and-flow process for implementation dosage might be common with these programs, and although recommendations exist (Tillyer, Engel, and Lovins, 2012), the sustainability issue has not been examined systematically.

Community-Based Approaches

One of the tensions created by the proactive approaches is that they are very targeted, and those targets are often underrepresented minorities and places that are frequented by these groups. Community-based efforts are based on responding to this tension and seek to foster social cohesion, trust, and willingness to work together to confront crime. Many of these approaches target the community-level physical or social factors that may contribute to environmental risk of violent crimes, such as social disorganization, narratives supportive of violence, the prevalence of gangs, or abandoned or blighted properties. The main feature of these community-based programs is that they are not led by law enforcement. Instead, law enforcement agencies are asked to support and enable the effort. These community partnerships can have the benefit of enhancing police legitimacy or improving community relations, in addition to reducing violence. One way this has been done is through partnerships between police and black clergy, combining the social capital and existing community networks of black churches with messages of nonviolence, engaging in information-sharing or messaging that communicates the nature of police actions, and increasing ownership of crime problems by the community. Still, there are challenges inherent in building and sustaining such community partnership approaches that may be related to the political, interpersonal, and social dynamics of the community (Brunson et al., 2013). In addition, it is unclear whether such efforts directly affect violent crimes involving guns.

One of the most well-known community-based approaches targeted at preventing violent crimes committed with guns is Cure Violence, or the violence interrupter model (Slutkin, Ransford, and Decker, 2015). Violence interrupters and outreach workers tend to be individuals with prior gang involvement, involvement in the justice system, or local connections who use their knowledge, experience, and relationships to understand and interrupt gun violence and the cycle of retaliatory violence. The core components of the model include detecting and interrupting potentially violent conflicts (e.g., at shooting scenes, community events); identifying, engaging with, and managing high-risk individuals; and communicating and changing community norms to reject violence. These programs are not driven by law enforcement but may be coordinated with law enforcement. For example, interrupters may rely on law enforcement for notifications of shooting incidents, hot spot maps, or other official data to guide their work. The nature of this work often requires avoiding a perception that interrupters are cooperating with law enforcement, and, in some cases, it is marked by open hostility toward police (Kennedy, 2011). Often, these programs work through official partnerships with hospitals. Research suggests that the effectiveness of this model is mixed and suffers from weak evaluation designs (Butts et al., 2015). Further research is needed to understand factors contributing to mixed results, which may be informed by a forthcoming systematic review (for details, see Maguire, Telep, and Abt, 2018).

Several other community-based approaches focus on improving property and economic conditions that have been found to be associated with reductions in violent crimes committed with guns. For instance, Moyer et al. (2019) discuss a Philadelphia study in which 110 clusters of blocks in the city were randomly assigned to have their vacant lots receive a greening intervention, a less-intensive mowing and trash collection intervention, or no intervention. Both the greening intervention, which created a “parklike” environment, and the less-intensive mowing and trash pickup intervention were associated with statistically significant reductions in shootings.

Similarly, the emergence of business improvement districts (BIDs) have also been associated with reductions in violent crimes. BID organizations consist of business and property owners interested in economic and urban development efforts aimed at revitalizing urban areas. They often pay for supplemental security and sanitation services in an effort to create safe and clean spaces to reduce fear and crime, with the goal of attracting more consumers. BIDs have been associated with reduced rates of robbery and violent crimes, primarily within the boundaries of the BID area (MacDonald et al., 2010; MacDonald et al., 2013). Similarly, gentrification, or the population and housing shifts that occur when higher-income households move into lower-income areas, has been associated with lower rates of violent crimes (Papachristos et al., 2011; Barton, 2016), although this is not always the case, and gentrification may cause short-term increases in violent crimes (Lee, 2010). It is difficult to verify that gentrification caused the drops in crime rather than the other way around (O’Sullivan, 2005). Both BIDs and gentrification face serious challenges from existing community residents because they often exclude current residents or influence local political decisionmaking in ways that may exacerbate existing social inequality (Hoyt and Gopal-Agge, 2007).

All of the community-based approaches discussed earlier have advantages over traditional policing practices that may contribute to long-term effects; however, the research evidence is very limited and tends to be mixed. In addition, there are challenges to implementing and sustaining these efforts, often corresponding to the social, political, and environmental conditions in which they are embedded. Nonetheless, they deserve to be considered as part of the toolkit for preventing community gun violence, in part because they provide an entry point into a community-focused understanding of gun violence. The reality is that (1) homicides in the United States are concentrated in poor urban communities, and (2) the homicide rate, which is driven by gun violence in the United States, dropped 50 percent from 1980 to 2016. [7] This drop is even more dramatic in large cities with more than 1 million people, where the drop was 70 percent from 1990 to 2016 (James, 2018). Simply put, communities, especially urban minority communities, are much safer than they were 30 years ago (Sharkey, 2018). As a research exercise, it is impossible to identify any one cause, but research does suggest that it is important not to overemphasize law enforcement to the exclusion of other community-based efforts by both government and nonprofit agencies (Sharkey, Torrats-Espinosa, and Takyar, 2017). In addition, although community approaches may have unique impacts on violent crimes committed with guns, it is important not to overlook the potential for collaborative partnerships between community groups and law enforcement to target and resolve particular problems or sources of violent crimes committed with guns, which may contribute to other important second-order effects (e.g., better police-community relations and legitimacy, improved cooperation from the community in investigating violent crimes, improved case clearance). While such collaborative efforts certainly exist, little is known about their effects.

Conclusions

In this essay, we have reviewed a range of reactive and proactive law enforcement approaches to enforce gun laws and to respond to and prevent gun crime. The research in this space is rather uneven. Although we have a general sense that law enforcement deserves some credit for the drop in the number of homicides committed with guns, very little is known about the exact mechanisms through which standard law enforcement practices, such as enforcement of gun ownership laws or investigations of violent crimes committed with guns, might affect rates of criminal misuse of guns and violent crimes committed with guns. As a result, we do not have strong evidence for the best approaches to improving case clearance. The evidence for the mechanisms behind proactive policing is stronger, and the recent National Academies of Sciences, Engineering, and Medicine (2018) evaluation was cautiously optimistic about these approaches, particularly in the short term.

The National Academies of Sciences, Engineering, and Medicine evaluation was also quick to note that the research that does exist suffers from important limitations, including that evidence does not typically derive from rigorous experimental designs, or even strong quasi-experimental designs, that might help distinguish the effects of the policing intervention from local trends in violent crimes (see Braga and Weisburd, 2014). Similarly, the studies that have been conducted are often evaluations of complex interventions involving multiple agencies or multiple potential mechanisms of effect. As a result, it is difficult to evaluate which intervention components are critical to success and nearly impossible to replicate more than just the spirit or general principles of the intervention in a new location. Finally, some interventions may work best only in the short term because of challenges in sustaining the collaborations, expertise, focus, and unity of purpose they require to remain effective. In general, much of our knowledge about the effectiveness of a variety of policing approaches is limited to the short term (one to two years of data) and is focused on small geographic units (e.g., hot spots, cities), while much of our knowledge about the effects of gun ownership laws relies on long-term evaluations and is focused on large geographic units (e.g., states, nations). Efforts to merge these lines of research may prove useful—for example, new state regulations requiring a permit to purchase a handgun could be evaluated at the city level to discover how the regulations contributed to changes in enforcement and crime. With these important caveats, there is some evidence that place-based approaches, problem-solving approaches, and person-focused approaches can reduce violent crimes and violent crimes committed with guns when appropriately matched to the problem and when implemented well. More-rigorous research is needed for each of the approaches discussed in this essay.

• We omit discussion of the potential impact of law enforcement activity on other types of gun violence (e.g., suicides, accidents) or specific types of violent crime (e.g., gang crime, domestic violence). We do note where research evidence suggests that a particular law enforcement approach is empirically associated with reductions in violent crimes that are not specific to violent crimes committed with guns. According to the U.S. Bureau of Justice Statistics, firearms were involved in 70 percent of all homicides from 1993 to 2011, but less than 10 percent of all nonfatal violent crime involved a firearm (Planty and Truman, 2013). As a result, the exact impact of a given policy on the prevalence of violent crimes committed with guns is uncertain in some cases. Finally, although our goal is to comment on the existing state of the research evidence, several of the approaches that we discuss are part of complex systems and are inherently difficult to evaluate even with the most-rigorous research designs (e.g., randomized controlled designs). In addition, some of the approaches discussed here are still relatively new, and research tends to accumulate slowly. Therefore, to say that an approach needs more evaluation does not necessarily mean that it does not play a useful role or that it does not affect outcomes. Return to content ⤴
• This form of law enforcement replaces the private pursuit of justice (i.e., vigilantism) with the public or societal pursuit of justice. Return to content ⤴
• Many of these approaches have been the subject of systematic reviews or meta-analyses elsewhere. Where that is the case, we consulted those sources. Where that is not the case, we used a targeted search of the literature to describe the approach and provide examples to illustrate the application of the approach. We also rely on many of the judgments and much of the framework used in a report on proactive policing by the National Academies of Sciences, Engineering, and Medicine (2018). Return to content ⤴
• Regulatory activities might be considered proactive, in the sense that they do not usually respond to a reported crime or infraction. We consider regulatory activities as standard law enforcement because these activities are often more akin to a random patrol approach to uncover ongoing crime, and there does not seem to be a strategic decision to emphasize prevention. For example, even though random patrols are not focused on being proactive or preventing crime, the presence of officers on patrol does provide a general level of deterrence and may occasionally result in the discovery of a crime or violation that has not been reported. Regulatory activity is more analogous to this than to the proactive approaches we discuss later. Return to content ⤴
• A straw purchase is when someone goes through the gun purchasing process (including the background check) and gives the gun to another person upon receipt. Return to content ⤴
• Clearance by arrest occurs when at least one person is arrested for a crime, charged, and turned over to the court for prosecution; clearance by exceptional means occurs when an agency has identified at least one person, gathered enough evidence for an arrest, identified the person or people’s location(s)—but then encountered an obstacle that prevented arrest (FBI, 2012). Return to content ⤴
• The bulk of this drop occurred from 1993 to 2014; there has been a slight increase since 2014. Return to content ⤴
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Samuel Peterson and Shawn Bushway, "Law Enforcement Approaches for Reducing Gun Violence," in Rajeev Ramchand and Jessica Saunders, eds., Contemporary Issues in Gun Policy: Essays from the RAND Gun Policy in America Project , Santa Monica, Calif.: RAND Corporation, RR-A243-2, 2021, pp. 77–96. As of April 15, 2021: https://www.rand.org/pubs/research_reports/RRA243-2.html

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Symposium - 2021 - Policing, Race, and Power

To ‘defund’ the police, jessica m. eaglin *.

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Abstract. Much public debate circles around grassroots activists’ demand to “defund the police,” raised in public consciousness in the summer of 2020. Yet confusion about the demand is pervasive. This Essay adopts a literal interpretation of “defund” to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black people enforced through criminal law. By recognizing this socially contextualized meaning to the call to defund the police, this Essay offers two important insights for the public in this current moment. First, it urges the public to confront the structural marginalization of black people when evaluating legal reforms that may impact police budgets. Second, the Essay encourages the public to embrace the state of confusion produced by the demand to “defund the police” when considering social reforms going forward.

Introduction

In May 2020, Officer Derek Chauvin killed George Floyd in Minneapolis, Minnesota. 1 Open this footnote Close this footnote 1 Matt Furber, Audra D. S. Burch & Frances Robles, What Happened in the Chaotic Moments Before George Floyd Died , N.Y. Times, http://perma.cc/Y4SC-8XMZ (updated June 10, 2020); Laurel Wamsley, Derek Chauvin Found Guilty of George Floyd’s Murder , NPR (Apr. 20, 2021, 5:37 PM ET), http://perma.cc/4CQP-T4DZ . … Open this footnote Close In response to Floyd’s death, the police killing of Breonna Taylor, 2 Open this footnote Close this footnote 2 Will Wright, Louisville Police Fire Brett Hankinson, Officer in Breonna Taylor Shooting , N.Y. Times , http:// perma.cc/AAA5-P254 (updated Sept. 15, 2020). … Open this footnote Close and many other instances of police killing unarmed black persons, 3 Open this footnote Close this footnote 3 See Cheryl W. Thompson, Fatal Police Shootings of Unarmed Black People Reveal Troubling Patterns , NPR (Jan. 25, 2021, 5:00 AM ET), http://perma.cc/6V5S-WT2K . … Open this footnote Close often without officers being held to account by the law, 4 Open this footnote Close this footnote 4 See, e.g. , id. (discussing the “myriad ways that law enforcement agencies fail to hold officers accountable”); Nicholas Bogel-Burroughs, Louisville Officer Who Shot Breonna Taylor Will Be Fired , N.Y. Times (updated Apr. 16, 2021), http://perma.cc/U87E-NWLR (illustrating the way criminal law fails to hold police officers accountable). … Open this footnote Close political protests erupted across the United States during the summer of 2020. 5 Open this footnote Close this footnote 5 Helier Cheung, George Floyd Death: Why U.S. Protests Are So Powerful This Time , BBC News (June 8, 2020), http://perma.cc/5YB9-DVBJ (noting that protests occurred in all fifty states). … Open this footnote Close The slogan that emerged from the protests was simple: “Defund the police.” 6 Open this footnote Close this footnote 6 See, e.g. , Sam Levin, Movement to Defund Police Gains “Unprecedented” Support Across U.S ., Guardian (June 4, 2020, 6:00 EDT), http://perma.cc/63C7-J2CR (to access, click “View the live page”). … Open this footnote Close

But what does that mean? As a public-policy demand, the position is controversial. Pundits and politicians from both sides of the aisle have dismissed the demand outright. 7 Open this footnote Close this footnote 7 See, e.g. , Katie Rogers, Trump Continues Criticism of Movement to Defund the Police , N.Y. Times (July 13, 2020), http://perma.cc/NMT7-ACFQ ; Lauren Gambino, Trump and Republicans Use Calls to “Defund the Police” to Attack Democrats , Guardian (June 8, 2020, 9:09 PM EDT), http://perma.cc/N7VX-LLYV (quoting then-White House press secretary Kayleigh McEnany as saying, “The president is appalled by the ‘defund the police’ movement”); Max Cohen, Biden Rejects Calls to Defund Police , Politico , http://perma.cc/6LNP-L8LN (updated June 8, 2020, 6:56 PM EDT) (quoting then-candidate Biden as saying, “No, I don’t support defunding the police . . . I support conditioning federal aid to police based on whether or not they meet certain basic standards of decency and honorableness and, in fact, are able to demonstrate they can protect the community and everybody in the community.”); Rep. Karen Bass, “ Defund Police” Is Probably One of the Worst Slogans Ever , Wash. Post , ( June 15, 2020, 12:59 PM PDT), http://perma.cc/8YVT-KTQ3 ; Shia Kapos, “ It’s a Nice Hashtag”: Chicago’s Lightfoot Pushes Police Reform, Not Defunding , Politico ( June 24, 2020 4:30 AM EDT), http://perma.cc/9FHU-97HX (explaining that Chicago Mayor Lightfoot rejects the call to defund the police because “it ignores how reform works, will hurt efforts to diversify the force, and goes against what Chicago residents are telling her they want”); William Saletan, “Defund the Police” Is a Self-Destructive Slogan , Slate ( Nov. 18, 2020, 8:45 PM), http://perma.cc/NSM3-Z32B . … Open this footnote Close At the same time, the demand emerges during a pivotal moment when people from across the political spectrum are expressing interest in advancing criminal legal reforms—including to policing—although to very different ends. 8 Open this footnote Close this footnote 8 See Benjamin Levin, The Consensus Myth in Criminal Justice Reform , 117 Mich. L. Rev . 259, 266-74 (2018) (complicating the apparent “consensus” about how to address mass incarceration by providing a typology distinguishing between “over” and “mass” critiques and criminal law reforms). … Open this footnote Close Unsurprisingly, even as they express discomfort with the term “defund the police,” policymakers are proposing reforms that will, in effect, reduce funding to the police. Yet, because the demand to defund the police has emerged as a political lightning-rod, there is real confusion about how to interpret the significance of such reforms. Further, public debates have yet to fully explain why this demand, as a mode of discourse, is so controversial in this historical moment. 9 Open this footnote Close this footnote 9 See, e.g. , Christy E. Lopez, Defund the Police? Here’s What That Really Means , Wash. Post (June 7, 2020, 3:37 PM PDT), https://perma.cc/C92N-AMXF (recognizing that, for “casual observers,” calls to defund police “may seem a bit disorienting—or even alarming” and urging parallel tracks between defunding and reforming police). … Open this footnote Close

This Essay seeks to clear the air and thus to facilitate public discourse. It adopts a literal interpretation of defunding to clarify and distinguish four alternative, substantive policy positions that legal reforms related to police funding can validate. It argues that the policy debates between these positions exist on top of the ideological critique launched by grassroots activists, who use the term “defund the police” as a discursive tactic to make visible deeper transformations in government practices that normalize the structural marginalization of black people enforced through criminal law. 10 Open this footnote Close this footnote 10 Note that this Essay focuses on black people in the United States, with a particular emphasis on economically disadvantaged individuals. However, the ideological critique applies with equal force to other people of color, especially Latinx people, who also experience deep structural disadvantages. … Open this footnote Close In recognizing this socially contextualized meaning of the call to defund the police, this Essay offers two important insights. First, it emphasizes that the place to start when evaluating legal reforms that may impact police budgets is not with matters of funding or policing; rather it is with the structural marginalization of black people we have all been conditioned not to question. Second, the Essay encourages the public to embrace the state of confusion produced by the demand to defund the police when considering social reforms going forward.

The Essay proceeds in two parts. Part I offers a typology of legal reforms that substantiate four different ways to conceptualize the act of defunding the police in this moment. To defund the police can refer to a long-term policy aim to abolish the police, to recalibrate what police do in society, to create accountability measures through conditional funding, or simply to save government resources. Though these four interpretations of defunding are not mutually exclusive, Part I brings to light the significant implications each meaning carries for structurally marginalized race- and class-vulnerable people. Part II situates grassroots activists’ demand to defund the police in social and historical context, so as to disentangle critiques of the demand as a discourse from debates between the policy positions described in Part I. It argues that the controversy around the call to defund the police derives in part from the substantive demand of grassroots activists to confront the structural marginalization of race- and class-vulnerable populations enforced through criminal law. The controversy also generates from grassroots activists’ attempt to claim epistemic power over two concepts—policing and defunding—that legitimate changes in government practice and make structural marginalization appear beyond redress. Ultimately, this Essay encourages the public to see the demand to defund the police as socially constructed. It emphasizes that the state of confusion the demand creates opens space for us all to imagine different futures.

I. A Typology of “Defunding” Police Reforms

“Defund” is a transitive verb that means “to withdraw funding from” 11 Open this footnote Close this footnote 11 Defund , Merriam-Webster , https://perma.cc/P9FL-NPY2 (archived May 6, 2021). … Open this footnote Close or “to withdraw financial support from.” 12 Open this footnote Close this footnote 12 Defund , Dictionary.com , https://perma.cc/23C5-ZLN5 (archived May 6, 2021). … Open this footnote Close In the context of U.S. practices, to defund colloquially refers to either a reduction in, or the elimination of, funding. 13 Open this footnote Close this footnote 13 See, e.g. , Thomas E. Keefe, The Etymology of Defund (June 2020), https://perma.cc/5N8P-M5ZL (to access, click “View the live page) (noting that “ defund has historically and colloquially been used in more emotional and dramatic situations”). … Open this footnote Close It is important to understand the literal meaning of the word because much public debate turns on social interpretations of the word in the context of policing. As Part II discusses in more detail, grassroots activists’ demand to “defund the police” in 2020 in response to police killings of unarmed black women and men has a particular, contextualized meaning. To fully appreciate that meaning, we must disentangle it from the ongoing policy debates surrounding legal reforms that impact police budgets. This Part situates the literal act of defunding the police within four different policy positions about policing. It identifies different legal reform proposals that substantiate each of those positions. This Part moves from positions most willing to engage with structural marginalization enforced through criminal law to those least concerned with that reality.

A. Police Abolition

Abolitionists challenge the idea that imprisonment and policing are a solution for social, political, and economic problems in the United States. They believe that after years of trying to “reform” the police, reform efforts are doomed to fail. 14 Open this footnote Close this footnote 14 Mariame Kaba, Yes, We Mean Literally Abolish the Police , N.Y. Times (June 12, 2020), https://perma.cc/8D6M-K23U (“The only way to diminish police violence is to reduce contact between the public and the police.”). … Open this footnote Close Abolitionists emphasize that the police are an institution designed to surveil and control marginalized populations, particularly black people. 15 Open this footnote Close this footnote 15 See, e.g. , Mychal Denzel Smith, Abolish the Police. Instead, Let’s Have Full Social, Economic, and Political Equality , Nation (Apr. 9, 2015), https://perma.cc/Z3CN-TPGM (“What do you do with an institution whose core function is the control and elimination of black people specifically, and people of color and the poor more broadly? You abolish it.”); Paul Butler, Chokehold: Policing Black Men 6 (2017) (“American cops are the enforcers of a criminal justice regime that targets black men and sets them up to fail.”). … Open this footnote Close Accordingly, the aim should be abolishing the police and other arms of the “prison industrial complex” in order to reimagine public safety. 16 Open this footnote Close this footnote 16 See, e.g. , MPD150 , Enough is Enough: A 150 Year Performance Review of the Minneapolis Police Department 40-41 (2020), https://perma.cc/5T8Y-NPJ9 . … Open this footnote Close The abolitionist project is both pragmatic—for example, reducing police presence should also reduce police killings—and existential—in that it reflects a long-term goal of replacing police with alternative means of ensuring safety. 17 Open this footnote Close this footnote 17 Kaba, supra note 14; Butler , supra note 15, at 234-35. A thick vision of police abolition emerges from the deep intellectual history of scholar–activists like Angela Davis and Ruth Wilson Gilmore, each of whom argues that transforming policing and incarceration in the United States has to be an economic project. See Ruth Wilson Gilmore, The Golden Gulag: Prisons, Surplus, Crisis, and Opposition in Globalizing California 11 (2007) (framing prison expansion as central to the changing political economy). See generally Angela Y. Davis, Are Prisons Obsolete? (2003) (critiquing the prison–industrial complex). … Open this footnote Close

When abolitionists talk about responding to police violence, they often point to the Illinois Reparations for Police Torture Victims Act drafted by survivors and activists in response to the heinous acts of torture by the Chicago Police Department under the leadership of the late Jon Burge. 18 Open this footnote Close this footnote 18 See, e.g. , Allegra M. McLeod, Envisioning Abolition Democracy , 132 Harv. L. Rev. 1613, 1623-27 (2019) (pointing to the reparations ordinance as an example of how abolitionists would “react to the most awful forms of violence”—in this case, violence perpetrated by the police); see also Georgetown Law, Police Abolition: What Does It Mean?—Georgetown Law’s “Rethinking Policing” Series , YouTube (June 24, 2020), https://perma.cc/AHL3-XSJJ (to access the video, click “View the live page”) (comments of Justin Hansford at 14:47-16:05, noting that abolition is a “very generous” approach and recognizing that “it’s perhaps the case that justice looks like reparations more so than justice looks like retributive justice”). … Open this footnote Close Passed in May 2015, this legislation provides non-financial reparations for survivors and their families, including an official apology, free psychological counseling, free education at the City Colleges, and job training; it mandates that public schools teach about the torture in eighth- and tenth-grade curriculums; and it approves creation of a permanent memorial in the city. 19 Open this footnote Close this footnote 19 G. Flint Taylor, The Long Path to Reparations for the Survivors of Chicago Police Torture , 11 Nw. J.L. & Soc. Pol’y 330, 348-51 (2016). … Open this footnote Close In addition, the City of Chicago set aside $5.5 million to financially compensate living survivors of the torture. 20 Open this footnote Close this footnote 20 Flint Taylor, How Activists Won Reparations for the Survivors of Chicago Police Department Torture , In These Times (June 26, 2015) https://perma.cc/Z627-V6V9 (noting that the $5.5 million should allow approximately $100,000 per survivor, regardless of whether the statute of limitations for an individual to bring a civil suit against the city had run). … Open this footnote Close

The ordinance did not directly defund the police, yet the funding for the reparations ordinance did not derive from the coffer of money set aside by the city to cover police liability cases either. 21 Open this footnote Close this footnote 21 See id. (emphasizing that the city paid individuals who could not pursue civil lawsuits); Kristen Gwynne, Chicago to Pay $5.5 Million in Reparations for Police Torture Victims , Rolling Stone ( May 6, 2015, 10:27 PM ET ) , https://perma.cc/4QNZ-RD9W (“Chicago has allotted $5.5 million to be doled out to dozens of police torture victims—a drop in the bucket compared to the $100 million spent on restitution for lawsuits linked to Burge’s abuse, and the $20 million spent defending him and his team.”); see also Joanna C. Schwartz, How Governments Pay: Lawsuits, Budgets, and Police Reform , 63 UCLA L. Rev . 1144, 1176-77 & nn.102-04 (2016) (noting that the city of Chicago requires its police department to pay for police liability cases, but allocates funds for that responsibility directly into the police budget and covers overages when needed). … Open this footnote Close In Chicago, that coffer is set aside in the police budget to fund civil lawsuits that the City anticipates will result from police misconduct each year. 22 Open this footnote Close this footnote 22 This is the coffer of money out of which § 1983 claims, subject to any qualified immunity defense, would be compensated. See Schwartz, supra note 21, at 1176 n.102. In recent years, much legal scholarship has explored the shortcomings of qualified immunity on empirical and legal grounds. See, e.g. , Fred O. Smith, Jr., Formalism, Ferguson, and Qualified Immunity , 93 Notre Dame L. Rev. 2093, 2095 (2018) (discussing groundswell of support for reexamining the doctrine of qualified immunity). For a discussion of the limited significance of qualified immunity reform for the larger project of achieving social justice, see Fred O. Smith, Jr., Beyond Qualified Immunity , 119 Mich. L. Rev. Online 121 (2021) (recognizing the merits of expanding possible liability against individual police officers, but explaining its limits in addressing systemic practices and proposing other judicial reforms that could “serve to shape the incentives, knowledge, and ultimately, the actions of policymakers in ways that could meaningfully reduce injustices, inequality, and unnecessary death in the criminal legal system”). … Open this footnote Close The funding for the ordinance, in contrast, requires the city to pay torture victims with general taxpayer dollars. Regardless of whether the reparation ordinance deters police from engaging in wrongful behavior in the future, both its financial and non-financial conditions require the City of Chicago to invest in the futures of the marginalized communities most impacted by police violence. In effect, then, the reparation legislation requires the city to allocate taxpayer dollars otherwise available for the city to spend on policing and instead increase funding for alternative ways to connect and understand one another. 23 Open this footnote Close this footnote 23 In 2017, for example, the Chicago police department received 38.6% of the city’s $3.7 billion general fund budget. The city allocated just 2.1% of that same fund to the Department of Family and Support Services, which includes violence reduction programs. See Ctr. for Popular Democracy, Law for Black Lives & Black Youth Project 100, Freedom to Thrive: Reimagining Safety & Security in Our Communities 23 (2017). … Open this footnote Close

From the abolitionist perspective, defunding the police is a first step toward abolishing the police. It is a demand to enact “nonreformist reforms” of the police, by beginning to divest from police and from the expanding carceral state. 24 Open this footnote Close this footnote 24 As MPD150 succinctly stated in 2020, “We (and so many others in this movement [to abolish the police]) don’t want to just rebrand cops, or privatize cops, or make cops ‘nicer.’ The goal is a city without police, and defunding police is one tool we have to reach that goal.” MPD150, supra note 16, at 48. For a definition of “non-reformist reforms,” see Amna A. Akbar, Demands for a Democratic Political Economy , 134 Harv. L. Rev. F. 90, 101 (2020) (“non-reformist reforms require a ‘modification of the relations of power,’ in particular ‘the creation of new centers of democratic power.’” (quoting André Gorz , Strategy for Labor: A Radical Proposal 8 & n.3 (Martin A. Nicolaus & Victoria Ortiz trans., 1967))). … Open this footnote Close Importantly, abolitionists neither seek to eliminate police tomorrow nor to exist in a world without replacements. 25 Open this footnote Close this footnote 25 See Kaba, supra note 14 (“[D]on’t get me wrong. We are not abandoning our communities to violence. We don’t want to just close police departments. We want to make them obsolete. . . . We can build other ways of responding to harms in our society.”). … Open this footnote Close Rather, they seek to create ways to connect that are sensitive to the needs of the most marginalized in society, particularly intersectionally vulnerable black people. In the long term, such a world would not include police, in any form or for any function. 26 Open this footnote Close this footnote 26 See, e.g. , Bernard E. Harcourt, Introduction to 3/13: Police Abolition , Abolition Democracy 13/13 (Oct. 3, 2020), https://perma.cc/MV6R-4B2R (urging the replacement of police with “violence interrupters”). … Open this footnote Close Defunding the police moves society in that direction.

B. Police Recalibration

To defund the police can also mean supporting the idea that we need to reprioritize existing public resources to create healthier communities. Significant amounts of public resources go toward police, yet more policing does not always make a community safer, particularly when considering economically disadvantaged black and brown communities. Other forms of public spending could increase safety more effectively while also creating a more equitable society. While abolitionists seek to transform society by ending policing, recalibrationists seek to transform it by altering police responsibilities. Those changes can occur through reductions in funding to police.

As an example, consider Chicago Alderperson Rossana Rodriguez Sanchez’s recently proposed legislation to expand the city’s public mental health infrastructure using funds taken from the Chicago Police Department budget. 27 Open this footnote Close this footnote 27 City Council Order 2020-242 (Chicago, Ill., Sept. 9, 2020) (unenacted). … Open this footnote Close Since 2011, Chicago has closed or privatized over half of its city-run health clinics due to cuts in state and city funding. 28 Open this footnote Close this footnote 28 Mattie Quinn, This Is What Happens When a City Shuts Down Mental Health Clinics , Governing (Sept. 27, 2018), https://perma.cc/XP5R-LBSQ (to access, click “View the live page,” then click “CONTINUE TO SITE”). … Open this footnote Close In their stead, the Cook County jail has emerged as a primary mental health resource for marginalized Chicagoans. 29 Open this footnote Close this footnote 29 See id. … Open this footnote Close Sanchez’s proposed legislation would create a publicly funded and operated Chicago Crisis Response and Care System that would be housed within the Chicago Department of Public Health. 30 Open this footnote Close this footnote 30 Elizabeth Weill-Greenberg, Chicago Lawmakers Push to Build Team of Emergency Responders Who Aren’t Police , Appeal (Sept. 28, 2020), http://linkhttps://perma.cc/4VH5-6ZU6 . … Open this footnote Close It would also establish twenty-four-hour crisis response teams throughout Chicago. 31 Open this footnote Close this footnote 31 Id. … Open this footnote Close And it would designate other social welfare actors, rather than police officers, to respond to mental-health-related calls for help. In so doing, the legislation could reduce police violence by reducing the incidence of police responding to people in mental health crises. 32 Open this footnote Close this footnote 32 See id. (noting that the proposed reforms are inspired in part by fatal encounters between the police and black youth experiencing mental health crises). … Open this footnote Close

This reform would explicitly defund the police. The funding for this mental health services system would be appropriated from the Chicago Police Department budget, including its overtime budget. 33 Open this footnote Close this footnote 33 Id. … Open this footnote Close Thus, the police budget would provide city funding to supplement the mental health services currently provided in large part at the Cook County jail. 34 Open this footnote Close this footnote 34 See Quinn, supra note 28 (emphasizing that the county provides mental health services in Chicago by default because the state and the city have slashed funding for such services). Significantly, the public health initiative would not be housed in the police department or any other criminal justice arm of the government, even if the police budget provides funds for it. Weill-Greenberg, supra note 30. … Open this footnote Close This approach would directly impact police functions as well. In effect, the reform would narrow the scope of what Chicagoans expect police officers to do in their city.

Like abolitionists, policymakers urging recalibration-oriented defunding reforms are deeply concerned with structural marginalization. As an example, the lack of mental health services in Chicago has disproportionately affected race- and class-marginalized populations. 35 Open this footnote Close this footnote 35 See Quinn, supra note 28 (noting that two of the mental health facilities closed by the city were located in already-underserved, low-income black and brown neighborhoods). … Open this footnote Close Yet Rodriguez Sanchez’s proposal would also explicitly produce organizational reforms within the Chicago Police Department by creating new public infrastructure to take over some of the activities police currently undertake by default. 36 Open this footnote Close this footnote 36 See Megan Quattlebaum & Tom Tyler, Beyond the Law: An Agenda for Policing Reform , 100 B.U. L. Rev. 1017, 1027 (2020) (proposing that Americans begin police reform discussion by deciding what they want police to do, and, potentially, “to reduce police officers’ functions down to the smallest, hard core of violent and other serious crime problems . . . for which we see no other possible response.”). … Open this footnote Close In so doing, it would free up existing resources for police to engage in some of the kinds of responsibilities recalibrationists expect police officers to continue doing. 37 Open this footnote Close this footnote 37 See id. at 1027-28. … Open this footnote Close In that sense, the legislation complements the work of legal scholars that look at policing like any other public good. 38 Open this footnote Close this footnote 38 See, e.g. , Tracey L. Meares, Synthesizing Narratives of Policing and Making a Case for Policing as a Public Good , 63 St. Louis U. L.J. 553 (2019) [hereinafter Meares, Narratives ]; Tracey L. Meares, Policing: A Public Good Gone Bad , Bos. Rev. (Aug. 1, 2017), https://perma.cc/Y5U2-8E83 [hereinafter Meares, Public Good ]. … Open this footnote Close To recalibrationists, the point of reductions in police funding is not the long-term elimination of all police; rather, it is the transformation of their function in society. 39 Open this footnote Close this footnote 39 See Tracey L. Meares & Tom R. Tyler, The First Step Is Figuring Out What Police Are For , Atlantic (June 8, 2020), https://perma.cc/3RAH-JSHX; Monica C. Bell, Police Reform and the Dismantling of Legal Estrangement , 126 Yale L.J. 2054, 2066-67 (2017) (critiquing the shortcomings of the legitimacy frame to police reform and proposing a “legal estrangement perspective [that] treats social inclusion as the ultimate end of law enforcement”). … Open this footnote Close

Thus, the distinction between the first and second meanings of defunding the police is nuanced. While abolitionists may consider Rodriguez Sanchez’s proposed legislation to be part of their agenda, recalibrationists would not consider the abolitionist-oriented reparations ordinance to be part of their agenda. Both seek to build alternative ways to ensure safety in communities, yet recalibrationists seek to explicitly change police organizations as well. Because abolitionists envision a long-term end to policing, such transformations are, at best, a side effect. For recalibrationists, the effect on policing is the point. From the recalibration perspective, to defund the police can be a first step toward foundationally transforming police, which can in turn transform society, too.

C. Police Oversight

Defunding the police could also fit within the managerialist idea that we need to reprioritize allocation of our constrained public resources to better shape the behavior of police departments and individual police officers. That police lack accountability is a well-established problem in legal and policy circles. Managerialists suggest that funding can be the lever to create needed police accountability. 40 Open this footnote Close this footnote 40 See, e.g. , Inimai Chettiar, Lauren-Brooke Eisen, Nicole Fortier & Timothy Ross, Brennan Ctr. for Just., Reforming Funding to Reduce Mass Incarceration 12-17 (2013) (“Weaving together dollars, incentives, and policy goals can serve as a potent lever for change” that “could be applied throughout the criminal justice system.”). … Open this footnote Close By attaching funding to technocratic metrics that measure lawful or effective policing, managerialists aim to “use the power of the purse” to shift policing practices. 41 Open this footnote Close this footnote 41 See id. at 12. … Open this footnote Close While incentivizing adherence to such metrics need not lead to reductions in funding to police departments, managerialists suggest that it could. 42 Open this footnote Close this footnote 42 See id. at 14 (“If agencies do not achieve ‘success,’ the consequences would be a reduction in funding , some other negative impact, or possible termination .”) (emphasis added). … Open this footnote Close In this sense, the manipulation of success measurements may reduce currently guaranteed funding to state and local police departments while incentivizing different department-wide, systemic policing policies. 43 Open this footnote Close this footnote 43 As of 2016, there were 599,548 employees of local police, 359,843 employees of county sheriffs, and 91,097 state police employees. Shelley Hyland, U.S. Dep’t of Just., NCJ 251762, Full-Time Employees in Law Enforcement Agencies, 1997-2016 , at 2 tbl.2 (2018). This tracks the observation that policing remains a mostly local matter. Rachel A. Harmon, Federal Programs and the Real Costs of Policing , 90 N.Y.U. L. Rev. 870, 877 (2015) (“Though subject to state and federal law, police departments are overwhelmingly funded by local governments and governed by the local political process.”). … Open this footnote Close

Policies that fit within this interpretation of defunding the police are rarely described as such, though they surely could have that effect. As an example, in June 2020, then-President Donald Trump promulgated Executive Order 13929, requiring police departments to adopt “use-of-force policies [that] prohibit the use of chokeholds . . . except in those situations where the use of deadly force is allowed by law” in order to receive a certification that allows access to federal grant money. 44 Open this footnote Close this footnote 44 See Exec. Order No. 13,929, 85 Fed. Reg. 37,325, 37,325-26 (June 19, 2020). … Open this footnote Close At the time, most state governments and localities did not regulate police chokeholds. 45 Open this footnote Close this footnote 45 Prior to summer 2020, only a handful of local municipalities and state governments regulated police chokeholds. See Trevor George Gardner & Esam Al-Shareffi, Regulating Police Chokeholds , 111 J. Crim. L. & Criminology Online (forthcoming 2021) (manuscript at 11-12, 14) (on file with author) (noting that prior to Floyd’s death in May 2020, only four states and the District of Columbia regulated the police chokehold through statutory law while eighteen of the fifty largest municipalities in the country had enacted some type of regulation over police chokeholds). … Open this footnote Close In effect, then, Trump’s single act could have eliminated federal funding for the majority of police departments across the country. Similarly, two congressional bills introduced in the summer of 2020 seek to incentivize chokehold regulation at the state and local level by withholding federal funds from law enforcement agencies that refuse to take action. 46 Open this footnote Close this footnote 46 JUSTICE Act, S. 3985, 116th Cong. § 105 (2020); George Floyd Justice in Policing Act of 2020, H.R. 7120, 116th Cong. § 363 (2020). … Open this footnote Close

Should either of these bills pass, it would have the same effect as Trump’s executive order—conditioning funding upon enactment of specific police policies. While local police departments are largely funded by local taxes, federal funding has expanded in recent decades. 47 Open this footnote Close this footnote 47 See, e.g. , Harmon, supra note 43, at 882-84 (discussing intermittent influxes of federal funds to local law enforcement agencies since the 1960s); Brian A. Reaves, U.S. Dep’t of Just., NJC 248677, Local Police Departments, 2013: Personnel, Policies, and Practices 8 (May 2015), https://perma.cc/UF75-C3EV (finding that seven in ten police departments include a community policing component that enables federal funding). … Open this footnote Close The possible reduction of federal funding to a state or municipality is significant. 48 Open this footnote Close this footnote 48 See Vera Inst. of Just., The Impact of Federal Budget Cuts from FY10-FY13 on State and Local Public Safety: Results from a Survey of Criminal Justice Practitioners 2-12 (2013), https://perma.cc/8MQ8-RFX8 (reporting survey responses of state and local law enforcement agencies expressing serious concern about reductions in federal funding to local law enforcement); Nat’l Conf. State Legislatures, NCSL Fiscal Brief: State Balanced Budget Provisions 2 (Oct. 2010), https://perma.cc/X64P-4CJV (“Most states have formal balanced budget requirements with some degree of stringency, and state political cultures reinforce the requirements.”). … Open this footnote Close States and localities will change—and have changed—their policies to maintain federal funding. That police departments can reclaim their status for federal funding does not negate the fact that the law could reduce or withdraw funding from police departments.

Unlike the first or second interpretations, the managerial or oversight interpretation of “defunding” is oriented around the lawfulness or effectiveness of the police. The point of funding reform is not to change society, but to make police better at the existing panoply of tasks society expects them to do. That is, the central purpose of this kind of defunding would be to control individual officers through systemic reforms. 49 Open this footnote Close this footnote 49 See, e.g. , William J. Stuntz, The Political Constitution of Criminal Justice , 119 Harv. L. Rev. 780, 844-45 (2006) (suggesting that Congress should spend its energy funding local officials who do most of the work in controlling crime). … Open this footnote Close If manipulating funding streams reduces the significance of structural marginalization, that is a welcome side-effect of the reform. But it is not the central purpose. Thus, proponents of the managerialist frame are more likely to speak of individual bias and discretion. And they are more likely to consider structural forces that subordinate racial minorities to be beyond the reach of police reforms. So while there is nothing wrong per se with police lawfulness or efficiency or the intersection between the two, this oversight perspective creates a foundation for lawmakers and policymakers to embrace reforms that obscure and entrench structural inequality enforced through criminal law—a foundation that those adhering to the first and second meanings seek to contest. 50 Open this footnote Close this footnote 50 As a case in point, adherents to the managerialist frame often embrace proactive policing because it is ostensibly efficient—a contested claim—even though it has deleterious effects on society that are disproportionately borne by marginalized communities. Compare Chettiar et al., supra note 40, at 10 (encouraging expansion of proactive policing), with Meares, Public Good , supra note 38 (demanding that we “abandon the project of ‘proactive policing’”), and Butler , supra note 15, at 91-97 (explaining the racialized effects of “stop-and-frisk,” a cornerstone of proactive policing). … Open this footnote Close

D. Fiscal Constraints

Finally, defunding the police could relate to the idea that resources are scarce in the public sector, so all government agencies have a responsibility to tighten their belts. 51 Open this footnote Close this footnote 51 This framing builds on a long history of police departments facing budgetary constraints as part of a trend toward “budget-cut criminal justice reform.” See generally Mary D. Fan, Beyond Budget-Cut Criminal Justice: The Future of Penal Law , 90 N.C. L. Rev . 581 (2012). Whether this is a good or bad thing has been debated. For critiques of this trend as contrary to efforts to address mass incarceration, see Jessica M. Eaglin, Against Neorehabilitation , 66 SMU L. Rev . 189, 194 (2013) (critiquing emergency, cost-conscious sentencing reforms because they fail to “provid[e] a significant change in the problematic policies that led [the United States] to the current crisis”); Marie Gottschalk, Caught: The Prison State and the Lockdown of American Politics 26 (2015) (lamenting that “the Great Recession has spurred excessive hopes that the United States is at the beginning of the end of mass incarceration because the fiscal costs are too high to sustain,” and pointing to broader “political, economic, and institutional forces that . . . sustain the carceral state”). … Open this footnote Close The primary aim is reducing costs, not transforming policing institutions, though fiscal-constraint-type reforms tend to have that effect as well. Under this interpretation, defunding the police is just that—an effort to reduce government spending in the area of criminal administration without any commitment to changes in practices and policies.

Some of the recent budget changes to the New York City Police Department (NYPD) illustrate the cost-reductionist interpretation of defunding the police. In the face of severe financial deficits brought on by the COVID-19 pandemic and its effect on the economy, Mayor Bill de Blasio set out to reduce police funding as early as April 2020. 52 Open this footnote Close this footnote 52 See Jeffery C. Mays, Virus Forces a “Wartime” Budget on N.Y.C., with $2 Billion in Cuts , N.Y. Times , https://perma.cc/VZ36-WVXW (updated July 1, 2020). … Open this footnote Close And in response to the protests following the death of George Floyd, in May, New York City Council members pledged to cut New York City’s police spending by $1 billion. As the Council explained, these cuts would “limit the scope of the NYPD” and “show our commitment towards moving away from the failed policing policies of the past.” 53 Open this footnote Close this footnote 53 Press Release, Joint Statement from Speaker Corey Johnson et al. on Proposed Cuts to the NYPD Budget (June 12, 2020), https://perma.cc/A67Q-XZC4 . … Open this footnote Close Despite these rhetorical commitments, the 2021 New York City budget reflected a deeper commitment to reducing city costs than to transforming policing or society. 54 Open this footnote Close this footnote 54 When asked whether these reforms would “defund” the police, Mayor Bill de Blasio explained, “If you are not spending the money on that agency, if money that agency was planning to spend is no longer in their budget, that is savings by any measure.” Dana Rubinstein & Jeffery C. Mays, Nearly $1 Billion Is Shifted from Police in Budget That Pleases No One , N.Y. Times , https://perma.cc/V2BU-246L (updated Aug. 10, 2020). … Open this footnote Close The city made plans to cut $350 million in overtime pay for NYPD officers. 55 Open this footnote Close this footnote 55 Id. … Open this footnote Close It also has delayed the hiring of approximately 1,160 new police officers and intends to reallocate the $400 million fiscal responsibility for school safety agents from the NYPD to the Department of Education. 56 Open this footnote Close this footnote 56 Id. … Open this footnote Close

This fiscal-constraint interpretation of defunding the police likely conflicts with efforts to address structural marginalization as such reforms tend to entrench the marginalizing structures. For example, the NYPD budget cuts implemented by de Blasio will shift responsibility for the school safety line from the NYPD back to the Department of Education. 57 Open this footnote Close this footnote 57 Note that Mayor de Blasio’s administration characterizes this transition as “a multiyear process,” so school safety officers remain within the NYPD budget for at least part of the 2020-21 fiscal year. Joe Anuta, School Safety Agents Will Stay Under NYPD This Year, Despite City’s Claims of $1B Cut , Politico , https://perma.cc/85FY-737M (updated July 2, 2020, 10:47 PM EDT). For context on the origins of New York City’s existing school-safety program, see Randal C. Archibold, New Era as Police Prepare to Run School Security , N.Y. Times (Sept. 16, 1998), https://perma.cc/GWH2-ECD2 . … Open this footnote Close But the Department of Education was already spending some $300 million underwriting the program. 58 Open this footnote Close this footnote 58 Communities United for Police Reform, The Path Forward: How to Defund the NYPD, Invest in Communities & Make New York Safer 13 (June 16, 2020), https://perma.cc/J4EH-E48A (calling for the elimination of police in schools to permit the reinvestment of over $300 million into the Department of Education); Rubinstein & Mays, supra note 54 (explaining that the Department of Education pays the NYPD for in-school security services). For an insightful call to critique school policing through a public health lens, see Thalia González, Race, School Policing, and Public Health , 73 Stan. L. Rev. Online 180 (2021). … Open this footnote Close This reallocation potentially reduces educational resources by $100 million without significantly reducing police funding or fundamentally altering the idea of safety in schools. Indeed, budget constraints have been the catalyst for numerous reforms that exacerbate structural marginalization. For example, a fiscal-constraints orientation can facilitate the expansion of proprietary, data-driven technology to allow police to continue proactive policing at a lower cost while avoiding critical engagement with whether the practice should continue at all. 59 Open this footnote Close this footnote 59 See Andrew Guthrie Ferguson, The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement 20-33 (2017) (noting the expansion of data-driven policing technologies in response to budgetary constraints). … Open this footnote Close Perverse incentives can catalyze police departments to close budget gaps in ways that exacerbate structural marginalization—for example, by increasing citations and other forms of regressive levies on the poor, 60 Open this footnote Close this footnote 60 See U.S. Dep’t of Justice, Civ. Rts. Div., Investigation of the Ferguson Police Department 5-10 (2015) (noting perverse financial incentives that shaped policing in problematic ways). … Open this footnote Close selling arrest records for a profit, 61 Open this footnote Close this footnote 61 See, e.g. , James B. Jacobs, The Eternal Criminal Record 197 (2015). For an insightful explanation of the racially discriminatory implications of the creation and expanding use of criminal records outside the criminal justice system, see Eisha Jain, The Mark of Policing , 73 Stan. L. Rev. Online 162 (2021). … Open this footnote Close providing specialized services to wealthy communities for a fee, 62 Open this footnote Close this footnote 62 Monica C. Bell, Anti-Segregation Policing , 95 N.Y.U. L. Rev. 650, 724-27 (2020) (describing the Expanded Neighborhood Policing program in Dallas, Texas). … Open this footnote Close and more.

The third and fourth interpretations are similar in important respects. Like managerialists, cost-reductionists may not consider themselves to be defunding the police. Rather, both envision themselves as embracing principles of good management. Both focus narrowly, emphasizing the allocation of money within police budgets. Both are committed to actively funding police departments rather than intentionally removing funding from their budgets. In this sense, managerialists and cost-reductionists are both a world away from abolitionists and recalibrationists. However, managerialists and cost-reductionists diverge in one very important way. While managerialists are concerned with shaping individual officers’ behavior through systemic reforms, cost-reductionists are preoccupied with savings. Any influence that the cost-cutting measures have on systemic practices, such as increased efficiency in police work or alterations in persistent officer conduct, is a welcome benefit. But it is not the primary aim.

II. “Defund the Police” as Discourse

To “defund” is a plastic and malleable term in the context of policing. Each of the above reforms could literally defund the police, yet only some of these reforms fit within the frame of grassroots activists’ demand to “defund the police” in this moment. That many would not interpret some of these reforms as defunding the police illuminates the simple point that the meaning of “defund the police” is socially and historically situated. Thus, when considering whether and what kinds of legal reforms can satisfy the demand in this moment, we must begin by understanding both what the demand means in social context, and why the demand is politically and historically significant. As this Part points out, the demand to defund the police emerged as part of a critique of the structural marginalization of race- and class-vulnerable people and its enforcement through criminal law. Because activists use words central to the historical shift in government practices as the means to critique that marginalization, the entire discourse challenges existing worldviews. The intersection of this discursive critique with debates about police reform creates genuine confusion.

Americans changed the function of government at the end of the twentieth century. We shifted from a social welfare state to something else, 63 Open this footnote Close this footnote 63 See, e.g. , Elizabeth Hinton, From the War on Poverty to the War on Crime: The Making of Mass Incarceration in America 10-11 (2016); Katherine Beckett, Making Crime Pay: Law and Order in Contemporary American Politics 9-10 (1997). … Open this footnote Close often termed neoliberalism. Though that term can mean many things, it generally expresses a shift toward market logics in government activities, the privatization of public functions, the slashing of the social safety net, and the expansion of the carceral arm of the state. 64 Open this footnote Close this footnote 64 See Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order 42-43 (2011). … Open this footnote Close At times, this transformation has been explicitly driven by anti-black racism. 65 Open this footnote Close this footnote 65 See Michael Omi & Howard Winant , Racial Formation in the United States 211-21 (2013) (situating the neoliberal political project and racial exclusion as co-constitutive of one another). … Open this footnote Close But regardless of intent, 66 Open this footnote Close this footnote 66 See generally Naomi Murakawa & Katherine Beckett, The Penology of Racial Innocence: The Erasure of Racism in the Study and Practice of Punishment , 44 L. & Soc’y Rev. 695, 696-700 (2010) (critiquing the narrowing of conceptions of racism alongside the expansion of the carceral state). … Open this footnote Close its effects have most impacted the most marginalized in the United States. 67 Open this footnote Close this footnote 67 See, e.g. , Kaaryn Gustafson, The Criminalization of Poverty , 99 J. Crim. L. & Criminology 643, 715 (2009) (critiquing the criminalization of poverty and suggesting that this trend “highlights economically and legally institutionalized ideologies of neo-liberalism, racism, sexism, and the dehumanization of the poor.”); Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity 16 (2009) (urging study of penal policies as an “essential chapter” in the sociology of the state and social stratification). … Open this footnote Close Yet neoliberal logics make that marginalization seem natural, when in fact it is very much constructed by shifts in legal policies and transformations in government presence.

Discursively, the social meaning of “defund the police” emerges from “[o]ne of the most contested planks” of the Black Lives Matter movement: the call to “invest/divest.” 68 Open this footnote Close this footnote 68 See Brentin Mock, The Price of Defunding the Police , Bloomberg: CityLab (July 14, 2017, 4:00 AM PDT), https://perma.cc/P8KG-Z8L2 . For more on the origin of the Black Lives Matter movement, see Jelani Cobb, The Matter of Black Lives , New Yorker (Mar. 7, 2016), https://perma.cc/8RJ8-9KL6 . … Open this footnote Close According to the Movement for Black Lives’ policy platform, this means “investments in Black communities, determined by Black communities, and divestment from exploitative forces including prisons, fossil fuels, police, surveillance and exploitative corporations.” 69 Open this footnote Close this footnote 69 Invest-Divest , Movement for Black Lives , https://perma.cc/H8FG-9L3F (archived May 6, 2021). … Open this footnote Close In recent years, the “invest/divest” demand has morphed into the demand to “defund the police.” 70 Open this footnote Close this footnote 70 See, e.g. , Mock, supra note 68. … Open this footnote Close In the wake of George Floyd’s death on May 25, 2020, “defund the police” emerged as a new slogan among protestors of police brutality alongside the slogan “Black Lives Matter.” As activist and law professor Justin Hansford explains, the call to defund the police developed not only as a symbolic call to affirm black lives, but “a substantive slogan that includes the [policy] proposal” for how to do it. 71 Open this footnote Close this footnote 71 Georgetown Law, supra note 18, at 48:10-49:03. … Open this footnote Close

Thus, the social meaning of defunding the police embeds a critique of the historical transformation in government logic. The demand to divest and invest is a demand to address structural marginalization, 72 Open this footnote Close this footnote 72 Akbar, supra note 24, at 110-11. … Open this footnote Close which in turn illuminates its disproportionate concentration among black people. Treating police violence as a symptom makes the racialized nature of structural marginalization visible. 73 Open this footnote Close this footnote 73 See Devon W. Carbado, Blue-on-Black Violence: A Provisional Model of Some of the Causes , 104 Geo. L.J. 1479, 1482 (2016) (encouraging readers “to view police violence against African-Americans as a structural phenomenon and not simply as a product of rogue police officers who harbor racial animus against black people.”). … Open this footnote Close So, to the extent that public discourse orients around what to do about policing, it is too narrow in scope. The place to start is with the structural marginalization of black people that we all have been conditioned not to question. From this perspective, disagreements between abolitionists and recalibrationists, while important as an academic matter, are less significant as a policy matter in this moment. One can support reforms that would directly redress the structural marginalization of black people through criminal law without demanding total police abolition. 74 Open this footnote Close this footnote 74 See Bell, supra note 62, at 760-65; Bell, supra note 39, at 2147-49. … Open this footnote Close

But even this insight does not resolve the controversy surrounding the phrase “defund the police,” because the fact that the demand is so controversial requires deeper analysis. That, as a discourse, to defund the police is jarringly confusing illuminates the epistemological implications of neoliberalism. Government did not simply change; we changed it by thinking differently and accepting different concepts as logical and beyond question. 75 Open this footnote Close this footnote 75 Cf. Lewis R. Gordon , African-American Philosophy, Race, and the Geography of Reason, in Not Only the Master’s Tools: African American Studies in Theory and Practice 43 (Lewis R. Gordon & Jane Anna Gordon eds., 2006) (emphasizing that shifts occur in social meaning alongside shifts in power). … Open this footnote Close Two central concepts that changed are policing and defunding, which operate not only as things or acts, but as sub-worldviews that sustain neoliberalism. As a discourse, the call to “defund the police” destabilizes these concepts. It demands that we engage with worldviews we are all trained not to see, let alone question.

Start with policing. That the demand to defund the police challenges our worldview about policing is quite obvious, but bears explaining. Police offer “an interpretive lens through which people make sense of, and give order to, their world.” 76 Open this footnote Close this footnote 76 Meares, Narratives , supra note 38, at 561 (quoting criminologist Ian Loader and sociologist Aogán Mulcahy). … Open this footnote Close This ontological commitment emerges from a way of thinking that suggests the place where government should exist—the thing it is good for—is first and foremost criminal law enforcement. 77 Open this footnote Close this footnote 77 See, e.g. , Harcourt, supra note 64, at 196-203 (asserting that “carceral developments” in the United States have been “facilitated by—not caused by, but made possible by—the rationality of neoliberal penality: by, on the one hand, the assumption of government legitimacy and competence in the penal arena and, on the other hand, the presumption that the government should not play a role elsewhere.”). … Open this footnote Close This worldview has influenced politics and social policy in numerous ways, in part by driving politicians and policymakers to frame social issues as crime issues. 78 Open this footnote Close this footnote 78 See, e.g. , Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear 4-5 (2007); Aya Gruber, The Feminist War on Crime: The Unexpected Role of Women’s Liberation in Mass Incarceration 70-72 (2020). … Open this footnote Close That is, we came to see the world through policing. It emerged as the last place to critique and the first place to invest local finances.

The term also challenges our assumptions about defunding and the government. In the United States, we similarly ascribe an interpretive lens to the demand to defund. The concept has deep roots in efforts to transform the welfare state in the United States since the 1970s. 79 Open this footnote Close this footnote 79 The term was used on the legislative floor in the late 1970s in relation to affirmative-action legislation that would require most federal grant recipients to obtain 10% of “the articles, materials, and supplies which will be used” in the funded project from “minority business enterprises.” 123 Cong. Rec. S7156 (Mar. 10, 1977) (remarks of Sen. Brooke) (“This section shall not be interpreted to defund projects with less than 10 percent minority participation in areas with minority population of less than 5 percent.”). … Open this footnote Close By 1982, the term was commonplace in news and media debates about “liberal causes” ranging from abortions, to education, to unionism, and more. 80 Open this footnote Close this footnote 80 See Richard A. Viguerie, Opinion, Defund the Left , N.Y. Times (Aug. 11, 1982), https://perma.cc/FU2G-PZHS (claiming that “conservatives believe that defunding the left should be a principal priority of the Reagan Administration.”); see also Nan Aron, Liberty and Justice for All: Public Interest Law in the 1980s and Beyond 14 (1989) (describing the Reagan Administration’s political philosophy of drastically reducing the domestic role of the federal government as part of a larger effort to “‘defund[] the left,’” including by “cut[ting] off sources of public funding for public interest and legal services organizations”); Jeff Shear, GOP Catch Phrase for the ‘90s: “Defunding the Left” , Balt. Sun (Apr. 23, 1995), https://perma.cc/XP24-KNHR (chronologically locating efforts to “defund the left” as emerging between 1981 to 1985, when Michael Horowitz was chief counsel at the Office of Management and Budget). … Open this footnote Close In law-and-policy parlance, then, to defund means to destroy, 81 Open this footnote Close this footnote 81 See Saletan, supra note 7 (“ Defund is generally applied to organizations you want to cripple or eliminate, not reform.”). … Open this footnote Close specifically in the public sector. The connotation is negative and exclusionary. It suggests an absence of government resources and, more precisely, an absence of government all together. That is, to defund has been a political tool to increasingly subject the U.S. population to market forces. It is the embodiment of neoliberalism.

The real controversy around defunding the police, then, arises not just from the demand that we address structural marginalization; it arises also from the demand that we suspend the assumed meaning of both concepts to interrogate policies without a preconceived notion about their meaning. As a discourse, to defund the police creates the space to politically and normatively question the status quo. These words challenge power where force ends—in our minds. 82 Open this footnote Close this footnote 82 Cf. Gordon, supra note 75, at 41-42. … Open this footnote Close Without a doubt, we should expect deep resistance, which the public is demonstrating in droves. For example, mainstream media publishes vehement critiques of the call to “defund the police.” 83 Open this footnote Close this footnote 83 See, e.g. , Bass, supra note 7; Saletan, supra note 7. … Open this footnote Close Public polling suggests significant ambivalence toward “defunding the police,” but receptiveness to investing some money in programs other than policing. 84 Open this footnote Close this footnote 84 Giovanni Russonello, Poll Watch, Have Americans Warmed to Calls to “Defund the Police”? , N.Y. Times , https://perma.cc/J864-SAN9 (updated Aug. 4, 2020) (finding that “wording matters” in public polling, and noting that 53% of participants in one poll opposed “reducing funding for police departments” while 41% of participants in another poll supported redirecting money from police departments and putting it toward mental health, housing, and other social services”); Saletan, supra note 7 (comparing alternative formulations of the call to defund the police within the same polls to illuminate that “the phrase is lethal”). … Open this footnote Close Policy advocates from across the political spectrum hesitate to embrace the phrase even if they support reforms that may reduce police presence. 85 Open this footnote Close this footnote 85 See, e.g. , Michael D. Tanner, “Defund the Police” Is a Bad Slogan, but Some Aspects Are Worth Considering , Cato Inst . (June 16, 2020), https://perma.cc/A998-KP48 (“Rather than sending police, it seems social workers or others with appropriate training should respond” to certain tasks like “wellness checks, mental illness, drug overdoses, [and] dealing with the homeless”); Saletan, supra note 7 (“Police need to be reformed. . . . And you can make a strong case that if we were to invest wisely in education, employment, mental health, and controlling drug abuse, we wouldn’t have to pay cops to deal with problems that are better managed by social services. But “Defund the police” doesn’t help us make that case. It sets us back [politically].”); see also Lopez, supra note 9 (urging parallel tracks between defunding and reforming the police). … Open this footnote Close These facts suggest that the substance of more structural critiques in this moment has gained some public support. But the demand for power over the words that shape dominant worldviews has not.

Some suggest that this reflects the shortcomings of the demand, rather than the shortcomings in dominant worldviews. For example, some argue that protestors should say something different, so that the public may embrace their demands. 86 Open this footnote Close this footnote 86 See, e.g. , Saletan, supra note 7 (emphasizing the “benefits of replacing [the slogan ‘defund the police’] with more thoughtful language”). … Open this footnote Close That critique is flawed. It points the finger at activists for not creating a slogan that fits comfortably within existing worldviews. 87 Open this footnote Close this footnote 87 Indeed, this framing builds from another dominant worldview that positions black people as the problem in need of fixing, against which existential phenomenologists have long fought. Gordon, supra note 75, at 27 (“Africana existential phenomenology addressed the problematic of problem-people and the demand of a decolonized methodology in several ways,” including a commitment to ontological suspension); see also, e.g. , Naomi Murakawa, The First Civil Right: How Liberals Built the Prison State 13-14 (2014) (critiquing both liberal and conservative criminal-justice-reform agendas in the twentieth century as adhering to different, but complementary, framings of black people as problems in need of carceral fixes). … Open this footnote Close Others say that precision in the substantive ask is the most important component of the demand in this moment. 88 Open this footnote Close this footnote 88 Stephen Proctor, Barack Obama Clarifies His Criticism of “Defund the Police”: “Not the Point I Was Making” , Yahoo! Entertainment (Dec. 16, 2020), https://perma.cc/SPB9-8UHB (quoting former President Barack Obama as saying on The Daily Show with Trevor Noah , “The issue to me [with defund the police] is not making [people] comfortable, it is, can we be precise with our language enough that people who might be persuaded around that particular issue to make a particular change that gets a particular result that we want, what’s the best way for us to describe that?”). … Open this footnote Close Such a critique demonstrates willingness to consider substantive distinctions between policies, but also resistance to critical reflection on existing worldviews. But these worldviews—our commitments to the present—also demand change. We live in a world where structural factors expose black people to the threat of police violence. 89 Open this footnote Close this footnote 89 Carbado, supra note 73, at 1483-84 (describing six dynamics that lead to police violence against black people: social forces, surveillance, police culture, legal actors and processes, qualified immunity, and government indemnification of police violence). … Open this footnote Close Our worldviews—that which makes this reality seem natural—cannot possibly be sound. 90 Open this footnote Close this footnote 90 See id. at 1480-81 (critiquing the framing of “black on black violence” through the provisional theory of “blue on black violence”). … Open this footnote Close The demand to defund the police invites critical reflection on two worldviews that sustain the structural scaffold of our present. As a discursive matter, that alone is a worthy endeavor.

Yet this Essay goes further by encouraging the public to embrace the uncomfortable space where we cannot rely on preconceived ideas when interrogating social reforms in this historical moment. By illuminating how diverging interpretations of defunding can lead to different legal reforms, this Essay demonstrates that the very notion of defunding the police is socially and politically constructed—it is a concept that acquires meaning through social and historical interpretation. This insight should remind us that local funding to the police is a distributive project shaped by independently constructed concepts, and that those concepts can obscure normative and political questions about the kind of society in which we want to live. Seeing the concepts as constructed rather than naturally occurring creates the space to engage with those deeper questions. It denaturalizes our understanding of this present. As such, embracing the state of confusion the demand produces is an important component in thinking about the transformative project of imagining different, more inclusive futures going forward. 91 Open this footnote Close this footnote 91 It is distinct from, but complementary to, the growing legal scholarship on democratizing policing and the political economy. See, e.g. , Akbar, supra note 24, at 115-17; Jocelyn Simonson, Power over Policing , Bos. Rev. (June 8, 2020), https://perma.cc/N9D8-68SA . … Open this footnote Close

Conclusion: Why “Defund the Police”?

To defund the police can mean many things. As a substantive policy, it provides a path to abolition for some, and a path to police transformation for others. For still others, it provides a pathway to continue transforming governance by making police more effective or, at least, by saving constrained public resources. This Essay illuminates how these substantive meanings of defunding reforms can challenge or entrench structural marginalization. It asks that we remember that the place to start in thinking about reforms in this moment is, quite simply, structural marginalization, not policing or defunding.

Yet, as a matter of discourse, the term “defund the police,” also means something else entirely. This Essay illuminates how and why the demand to defund the police challenges existing worldviews. That public discourse even debates the question, “why ‘defund the police’?” signals the possibilities this challenge presents. To those activists on the ground demanding that the public should critically reflect on the assumptions that shape this present, thank you. To the protestors that took to the streets during the summer of 2020 in the midst of a pandemic to demand that these questions would not be ignored, thank you. This Essay invites us all to see the expansive possibilities that the demand seeks to evoke going forward.

* Professor of Law, Indiana University Maurer S c hool of Law. This Essay was written for the 2021 Policing, Race, and Power Symposium hosted by the Stanford Law Review and the Stanford Black Law Students Association, and for the cross-journal Reckoning and Reformation Symposium. For helpful comments on earlier versions of this essay, the author thanks Trevor Gardner, Eisha Jain, Aaron Littman, Tracey Meares, Sunita Patel, Nirej Sekhon, and Aaron Tang.

The featured image “ Minneapolis Police Officer in Squad Car – Shooting Crime Scene ” by Tony Webster is licensed under CC BY-SA 2.0 .

Law Enforcement’s “Warrior” Problem

• Seth Stoughton
• See full issue

Within law enforcement, few things are more venerated than the concept of the Warrior. Officers are trained to cultivate a “warrior mindset,” the virtues of which are extolled in books, articles, 1 interviews, 2 and seminars 3 intended for a law enforcement audience. An article in Police Magazine opens with a sentence that demonstrates with notable nonchalance just how ubiquitous the concept is: “[Officers] probably hear about needing to have a warrior mindset almost daily.” 4 Modern policing has so thoroughly assimilated the warrior mythos that, at some law enforcement agencies, it has become a point of professional pride to refer to the “police warrior.” 5 This is more than a relatively minor change in terminology. Though adopted with the best of intentions, the warrior concept has created substantial obstacles to improving police/community relations. In short, law enforcement has developed a “warrior” problem.

In this Commentary, I first describe how law enforcement training and tactics reflect the warrior concept, identifying aspects of modern policing that, if not addressed, will continue to prevent or undermine efforts to improve public perceptions of police legitimacy. I join a growing chorus of voices contending that it is the Guardian, not the Warrior, that offers the appropriate metaphor for modern officers. 6 Drawing on that principle, I offer two practical changes to police training that have the potential to advance the ultimate police mission — promoting public security — in a way that fosters, rather than thwarts, public trust: requiring non-enforcement contacts and emphasizing tactical restraint.

What is the warrior mindset? In its most restrictive sense, it refers to the mental tenacity and attitude that officers, like soldiers, are taught to adopt in the face of a life-threatening struggle. In this context, the warrior mindset refers to a bone-deep commitment to survive a bad situation no matter the odds or difficulty, to not give up even when it is mentally and physically easier to do so. 7 So narrowly defined, the concept is difficult for anyone to criticize. Unfortunately, the homage paid to the Warrior has expanded that uncontroversial definition beyond all recognition.

The warrior mindset has mutated into the warrior mentality. Like the restrictive version, the broad definition is motivated by the undeniable importance of officer safety. But where the restrictive version represents an attitude that officers should display in the most physically dangerous and psychologically precarious situations, the broad definition instructs officers on how to approach every aspect of their job. From their earliest days in the academy, would-be officers are told that their prime objective, the proverbial “first rule of law enforcement,” 8 is to go home at the end of every shift. 9 But they are taught that they live in an intensely hostile world. A world that is, quite literally, gunning for them. As early as the first day of the police academy, the dangers officers face are depicted in graphic and heart-wrenching recordings that capture a fallen officer’s last moments. 10 Death, they are told, is constantly a single, small misstep away. A recent article written by an officer for Police Magazine opens with this description: “The dangers we expose ourselves to every time we go [on duty] are almost immeasurable. We know this the day we sign up and the academy certainly does a good job of hammering the point home.” 11 For example, training materials at the New Mexico Police Academy hammer that point quite explicitly, informing recruits that the suspects they will be dealing with “are mentally prepared to react violently.” 12 Each recruit is told, in these words, “[Y]ou could die today, tomorrow, or next Friday.” 13

Under this warrior worldview, officers are locked in intermittent and unpredictable combat with unknown but highly lethal enemies. As a result, officers learn to be afraid. That isn’t the word used in law enforcement circles, of course. Vigilant, attentive, cautious, alert, or observant are the terms that appear most often in police publications. But make no mistake, officers don’t learn to be vigilant, attentive, cautious, alert, and observant just because it’s fun. They do so because they are afraid. Fear is ubiquitous in law enforcement. As I’ve written elsewhere, officers are:

constantly barraged with the message that that they should be afraid, that their survival depends on it. Not only do officers hear it in formal training, they also hear it informally from supervisors and older officers. They talk about it with their peers. They see it on police forums and law enforcement publications. 14

For Warriors, hypervigilance offers the best chance for survival. 15 Officers learn to treat every individual they interact with as an armed threat and every situation as a deadly force encounter in the making. 16 Every individual, every situation — no exceptions. Because the enemies’ identities are unknown, everyone is a threat until conclusively proven otherwise. A popular police training text offers this advice: “As you approach any situation, you want to be in the habit of looking for cover[] so you can react automatically to reach it should trouble erupt.” 17 A more recent article puts it even more bluntly: “Remain humble and compassionate; be professional and courteous — and have a plan to kill everyone you meet.” 18 That plan is necessary, officers are told, because everyone they meet may have a plan to kill them .

This approach inevitably affects the way that officers interact with civilians. First, it creates a substantial, if invisible, barrier to true community policing. Although now a painfully nebulous phrase — the victim of expansive overuse 19 — community policing is, at its core, a strategy that relies on building “[c]ollaborative partnerships” between police agencies and communities so as to better identify problems and “develop and evaluate effective responses.” 20 To fulfill the promises of community policing, officers must establish meaningful short- and long-term relationships with individual community members. To see the friction between relationship building and the warrior mentality, with its hypervigilant focus on preserving officer safety at all costs, consider this thought experiment: Imagine that you are a rookie police officer driving down the street, windows down, 21 and looking for people in the community with whom you can begin building positive relationships. But you have been told (repeatedly) that your survival depends on believing that everyone you see — literally everyone — is capable of, and may very well be interested in, killing you. Put in that position, would you actually get out of your car and approach someone? And if you did, would you stroll up to start a casual conversation or would you advance cautiously, ask for identification, run a criminal background check, and request consent to search . . . and then, maybe, try to start that casual conversation? The latter, of course, is what many officers are taught to do. It is what I was taught to do as a rookie officer. My first ever “consensual encounter,” only hours into my first day of field training, followed exactly that pattern. It takes no great imagination to recognize how badly that approach, repeated over hundreds or thousands of police/civilian interactions in any given jurisdiction, hinders the creation of meaningful, collaborative relationships.

Counterintuitively, the warrior mentality also makes policing less safe for both officers and civilians. Either through formal training or informal example, officers learn to both verbally and physically control the space they operate in. 22 It is essential to set the proper tone for an encounter, 23 and the tone that best preserves officer safety is widely thought to be one of “unquestioned command.” 24 Even acting friendly, officers may be told, can make them a target. 25 But like the use of physical force, 26 the assertive manner in which officers set the tone of encounter can also set the stage for a negative response or a violent interaction that was, from the start, avoidable. From the warrior perspective, the solution is simple: the people with whom officers interact must accede, respecting officers’ authority by doing what they are told. The failure to comply is confirmation that the individual is an enemy for the Warrior to vanquish, physically if necessary. And this creates avoidable violence. Sue Rahr, a former sheriff and currently both the Director of the Washington State Criminal Justice Training Commission and a member of President Obama’s Task Force on Twenty-First Century Policing, put it this way: “We do our recruits no favor if we train them to approach every situation as a war. To do so sets them up to create unnecessary resistance and risk of injury.” 27

Admittedly, violence is relatively uncommon in police/civilian encounters and most uses of physical force involve relatively low-level violence, with injuries to both officers and civilians being correspondingly uncommon, 28 but an officer who needlessly aggravates a situation doesn’t just increase the risk he faces in that encounter. He also increases the risk that other officers face in other encounters. Consider that of the ten most destructive and violent riots in United States history, fully half were responses to perceived police abuses. 29 An aggressive approach in individual interactions can exacerbate underlying social tensions in a way that fuels a dangerous fire. This is not a new observation. The Wickersham Commission, which investigated the failures of Prohibition enforcement, made exactly this point in its 1931 report: “High-handed methods, shootings and killings, even where justified , alienate[] thoughtful citizens, believers in law and order. Unfortunate public expressions . . . approving killings and promiscuous shootings and lawless raids and seizures and deprecating the constitutional guarantees involved[] aggravate[] this effect.” 30 The expansive version of the warrior mentality promotes the use of tactics that needlessly create use of force situations, and the fierce rhetoric that follows further fans the flames.

The Warrior has created problems for law enforcement, but the Guardian may offer some solutions that enhance both officer and civilian safety in ways that increase public trust in the police. This has not gone entirely unrecognized in law enforcement circles, and I add my voice to others that have called for precisely this change. 31 Of course, the guardian concept is no more inherently self defining than “warrior mindset” or “community policing,” raising questions about what exactly it entails. Both Warriors and Guardians seek to protect the communities they serve, of course, but the guardian mindset takes both a broader view and a longer view of how to achieve that goal. Put simply, the guardian mindset prioritizes service over crimefighting, and it values the dynamics of short-term encounters as a way to create long-term relationships. As a result, it instructs officers that their interactions with community members must be more than legally justified, they must also be empowering, fair, respectful, and considerate. 32 The guardian mindset emphasizes communication over commands, cooperation over compliance, and legitimacy over authority. And in the use-of-force context, the Guardian emphasizes patience and restraint over control, stability over action.

To flesh out the changes that could promote guardian policing, I offer two practical suggestions for police training. 33 The first can be addressed very quickly. To encourage officers to connect with community members, law enforcement agencies should require would-be officers to initiate non-enforcement contacts with members of their community. Both early in field training and near its conclusion, rookie officers should have to spend a certain set amount of time — perhaps one day a week, perhaps a block of two weeks or longer — approaching civilians just to have meaningful conversations. Building on the “Good Strangers” and “Tact, Tactics and Trust” training that grew out of the Defense Advanced Research Projects Agency’s Strategic Social Interaction Modules training, 34 a “non-enforcement contact” requirement means officers would have to interact with their constituents while being prohibited from taking enforcement actions: no asking for identification, no running criminal history checks, no issuing tickets, and no making arrests. 35 Further, the law enforcement agency should emphasize that officers are expected to continue making regular non-enforcement contacts even after completing field training. The purpose is threefold: giving officers and community members the chance to get to know each other as individuals, emphasizing the agencies’ commitment to community policing for both internal and external audiences, and teaching officers the valuable communication skills that they will use countless times over the course of their careers.

The second suggestion is to emphasize tactical restraint through both training and after-action review of use-of-force incidents. Tactical restraint has received significant attention and criticism recently, and so requires slightly more explanation. Simply put, tactical restraint instructs officers to avoid avoidable risks when doing so is consistent with the police mission. Tactical restraint doesn’t teach officers to run away from violent confrontations; it teaches them to approach every situation in a way that minimizes the threat of having it turn violent in the first place. To be clear, not all violence is avoidable. The use of force, including deadly force, will sometimes be necessary. But when violence is avoidable and when avoiding it doesn’t sacrifice the police mission, officers should be required to use tactical restraint even when that means holding their position or temporarily withdrawing. 36 From the guardian perspective, the value of this approach is that it minimizes the risk to civilians by reducing the chances that the officer will find himself in a situation that requires a high level of force. In short, because officers are safer, civilians are safer.

Nothing that I’ve suggested is entirely new to policing, and tactical restraint is no exception. Officers are already taught to use tactical restraint in certain situations. For example, many agencies instruct officers not to make an arrest without a second officer present. Why not? Why not allow an officer, working alone, to loudly issue verbal commands (perhaps even emphasizing the seriousness of commands with profanity) or charge in and go hands on? Because having backup on scene reduces the chance the suspect will resist and, in the event the suspect does resist, it gives officers an advantage. When officers are in a tactically superior position — here, having the advantage of numbers — it is easier for them to overcome resistance with less force. And using less force is ultimately more protective of the suspect that the officers are called upon to arrest.

Foot pursuits offer another example of how officers and agencies already employ tactical restraint. Most departments instruct officers, through policies or training, to keep a fleeing suspect in sight but to not physically engage until backup is on scene. 37 Why? Because a suspect who runs is more likely to be a suspect who fights. A fight is more dangerous for a single officer than it is for multiple officers, which means that a single officer might need to use more force than two officers would need to use to deal with the situation. That means that by waiting for other officers to arrive, the chasing officer reduces the amount of force that may be necessary to take the suspect into custody. By delaying, the officer can reduce the risk to both himself and the suspect. Some officers take a slightly different approach to tactical restraint. An officer I worked with used to encourage fleeing suspects to keep running. He’d stay behind them and shout, “Keep going! I’ve almost got you!” He did so because he didn’t want to have to fight the suspect — which would have endangered both of them — so he made sure that the suspect was physically exhausted. From a crime-fighting standpoint, this approach had costs: the suspect could not be charged with resisting because he had never ordered the suspect to stop (in fact, the suspect was doing exactly what he had been told to do!). But avoiding violence was well worth it. In some cases, it can be safer and just as effective to not pursue. As Chuck Wexler, Executive Director of the Police Executive Research Forum, wrote, “If the suspect’s identity is known, it may be safer if police arrest the person later, rather than engaging in a foot pursuit.” 38 The Denver Police Chief adopted a similar approach in the context of a recent protest, ordering his officers to not immediately arrest two protestors who defaced a police memorial by pouring red paint on it. 39 Rather than move in right then and there, which might have sparked a confrontation between officers and the crowd of protestors, Denver officers waited to arrest the two vandals, safely apprehending them after the protest and away from the crowds. 40 What all of those approaches have in common is a commitment to not rushing in recklessly when officers can use a safer option to accomplish the mission. That’s tactical restraint.

Tactical restraint is a valuable concept precisely because it offers a principled way to broadly apply the lessons that officers have already learned in some contexts. Using restraint doesn’t give suspects any more of an opportunity to resist than they already have. It gives officers a way to reduce both the probability of resistance and the amount of force that may be necessary to overcome that resistance. It encourages officers to work smarter, not harder, by relying more on good tactics and communication than on violence. It protects officers and civilians alike, which is exactly what so many of our officers already do and exactly why all of our officers should be expected to exercise tactical restraint.

It will take more than a couple of isolated changes to heal the longstanding divide between law enforcement agencies and the communities they police, particularly communities of color. Earning public trust will take decades and require rethinking how officers are trained as well as the legal and administrative standards used to review police violence. It will require changing the very culture of policing by reaffirming that policing must be done with a community, not to a community. There is deep tension between community policing and the warrior identity that has become so prevalent in modern law enforcement. We can resolve that tension and improve policing, in part, by replacing the concept of the police warrior with that of the guardian officer.

* Assistant Professor of Law, University of South Carolina School of Law. I am grateful to Geoff Alpert, Walter Katz, Mel Tucker, Hal Williamson, and Scott Wolfe for their helpful suggestions during the drafting process. In addition, I appreciate the questions and comments from the audiences at The Thin Blue Line: Policing Post-Ferguson symposium at the St. Louis University School of Law and the Police Use of Force: Investigation and Best Practices training seminar hosted by the Cuyahoga County Prosecutor’s Office, as well as the many emails I’ve received from law enforcement officers, instructors, and executives around the country over the past few months, all of which have helped refine my thinking. I also appreciate the excellent editorial work of the Harvard Law Review . As always, I am deeply grateful for the support of Alisa Stoughton.

^ E.g ., Amaury Murgado, Developing a Warrior Mindset , Police Mag ., May 24 , 2012 , http://www.policemag.com/channel/patrol/articles/2012/05/warrior-mindset.aspx [ http://perma.cc/CK6Q-VNLR ]; Charles Remsberg, Warrior Mindset: 8 Elements of Tactical Performance , PoliceOne.com ( June 5, 2013), http://perma.cc/R6CK-PRPP ].

^ Hank Hayes: Warrior Mindset , PoliceOne.com (Mar. 14, 2011), http://www.policeone.com/hank-hayes/videos/5955798-Hank-Hayes-Warrior-Mindset [ http://perma.cc/5JKL-JPK8 ].

^ The 2015 International Law Enforcement Educator and Trainers Association Conference, for example, will feature two sessions each on “Becoming Knights – Teaching Warrior Mindset to the Non-Warrior” and “Building Warrior Women Trainers.” See 2015 ILEETA Conference Schedule , Int’l Law Enforcement Educator & Trainers Ass’n , http://ileeta.org/wp-content/uploads/2014/09/2015-ILLETA-CONFERENCE-3_2_151.pdf (last visited Mar. 21, 2015) [ http://perma.cc/WXD8-R55G ]. Prior years offered additional training sessions with titles like “The Path of the Warrior Mentor,” “Filling the Tank – Warriors and Leaders,” “Always the Warrior at Every Age,” and “Emotional Warrior Training: Combating Stress.” Valerie Van Brocklin, Where Have All the Warriors Gone? , LawOfficer.com (Mar. 8, 2012), http://www.lawofficer.com/article/training/where-have-all-warriors-gone [ http://perma.cc/XX79-QLEC ].

^ Murgado, supra note 2.

^ E.g ., Loren W. Christensen, Defensive Tactics: Modern Arrest & Control Techniques for Today’s Police Warrior (2008). Similarly, a wide variety of sources identify police officers as warriors. See, e.g. , Helen Barnett , Urban Warrior (1999) ; Loren W. Christensen, Warriors: On Living with Courage, Discipline, and Honor (2004); Larry F. Jetmore, The Path of the Warrior: An Ethical Guide to Personal & Professional Development in the Field of Criminal Justice (2005) ; Lux Jameson , On the Job: A Black Warrior in Blue (2000); Bernard Schaffer, Way of the Warrior: Law Enforcement Philosophy (2013); Bruce K. Siddle, Sharpening the Warrior’s Edge: The Psychology & Science of Training (1995); Brian Voncannon, Living Behind the Shield: A Modern Warrior’s Path to Bravehood (2000).

^ See, e.g. , U.S. Comm’n on Civil Rights, Who is Guarding the Guardians?: A Report on Police Practices (1981).

^ Charles Dahlinger, Law Enforcement Combat Thinking , Law Enforcement Today (May 21, 2014), http://www.lawenforcementtoday.com/2014/05/21/law-enforcement-combat-thinking [ http://perma.cc/Z54W-9CAU ].

^ Seth Stoughton, How Police Training Contributes to Avoidable Deaths , The Atlantic (Dec. 12, 2014), http://www.theatlantic.com/national/archive/2014/12/police-gun-shooting-training-ferguson/383681 [ http://perma.cc/7T6L-PP24 ].

^ Seth W. Stoughton, Policing Facts , 88 Tul. L. Rev. 847, 865–66 (2014); see also Scott Fielden , The Mind of a Cop: What They Do, and Why They Do It 21 (2009); David J. Thomas, Understanding Violent Criminals: Insights from the Front Lines of Law Enforcement 191 (2014). For a critique of this “first rule of law enforcement,” see Jack Colwell et al., No “Officer Safety” Exception to the Constitution , Law & Order , Jan. 2015, at 10, http://www.hendonpub.com/law_and_order/articles/2015/01/no_officer_safety_exception_to_the_constitution [ http://perma.cc/DN22-STU8 ].

^ Fielden , supra note 10, at 20.

^ A.J. George, Winning a Knife Fight , Police Mag . (Feb. 11, 2015), http://www.policemag.com/channel/weapons/articles/2015/02/winning-a-knife-fight.aspx [ ].

^ Uriel J. Garcia, Experts Say Strongly Worded Police Curriculum Is Risky with Cadets , Santa Fe New Mexican (Mar. 25, 2014), http://www.santafenewmexican.com/news/local_news/experts-say-strongly-worded-police-curriculum-is-risky-with-cadets/article_6fcb7d45-436c-5e48-aa06-2fc6fdcc35a1.html [ http://perma.cc/FBQ2-LYTP ].

^ Stoughton, supra note 9.

^ Thomas C. Knowles, Cops Aren’t Your Enemy , Politico Mag . (Dec. 23, 2014), http://www.politico.com/magazine/story/2014/12/cops-arent-your-enemy-113794.html [ http://perma.cc/B5UL-JB3A ] (“From the start of any police academy, we are taught as cops to be ever vigilant — to apply laser-like attention to our surroundings at all times.”).

^ Richard Fairburn, Cooper’s Colors: A Simple System for Situational Awareness , PoliceOne.com (Aug. 9, 2010), http://www.policeone.com/police-trainers/articles/2188253-Coopers-colors-A-simple-system-for-situational-awareness [ http://perma.cc/5PU5-5957 ].

^ Ronald J. Adams et al., Street Survival 155 (1980).

^ John Bennett, How Command Presence Affects Your Survival , PoliceOne.com (Oct. 7, 2010), http://www.policeone.com/Officer-Safety/articles/2748139-How-command-presence-affects-your-survival [ http://perma.cc/CKF3-Y8C6 ].

^ “One reason for its popularity is that community policing is a plastic concept, meaning different things to different people.” John E. Eck & Dennis P. Rosenbaum, The New Police Order: Effectiveness, Equity, and Efficiency in Community Policing , in The Challenge of Community Policing: Testing the Promises 3, 3 (Dennis P. Rosenbaum ed., 1994). Because it is so variable, “[c]ommunity policing has become the new orthodoxy for cops.” Id . In this way, community policing offers a sad parallel to the original, limited meaning of the warrior mindset.

^ Cmty. Oriented Policing Servs., U.S. Dep’t of Justice, Community Policing Defined 1 (2014), http://www.cops.usdoj.gov/pdf/vets-to-cops/e030917193-CP-Defined.pdf [ http://perma.cc/7JG2-AMMC ].

^ One of the classic criticisms that community police advocates level against contemporary policing is the tendency for officers to drive around their assigned patrol zone with their windows up, effectively shutting themselves away from the public.

^ Bennett, supra note 19.

^ Lawrence N. Blum & Joseph M. Polisar, Why Things Go Wrong in Police Work , 71 Police Chief , July 2004, at 49, http://www.policechiefmagazine.org/magazine/index.cfm?fuseaction=display_arch&article_id=336&issue_id=72004 [ http://perma.cc/4DDR-Y4XZ ]. Officers may establish this authority more firmly in some interactions than others. See Christopher Cooper, Mediation in Black and White: Unequal Distribution of Empowerment by Police , in Not Guilty 125, 125–26 (Jabari Asim ed., 2001).

^ Michigan v. Summers, 452 U.S. 692, 702–03 (1981) (stating that, in the context of a traffic stop, “[t]he risk of harm to both the police and the [vehicle] occupants is minimized if the officers routinely exercise unquestioned command of the situation”).

^ Anthony J. Pinizzotto et al., U.S. Dep’t of Justice , Violent Encounters: A Study of Felonious Assaults on Our Nation’s Law Enforcement Officers 19 (2006) , http://www.secondcalldefense.org/sites/default/files/pdfs/Violent-Encounters.pdf [ http://perma.cc/4UJB-69XK ].

^ Cf . Geoffrey P. Alpert & Roger G. Dunham, Understanding Police Use of Force 88–91 (2004) (presenting data on officer/suspect interactions and the impacts of the use of force).

^ John S. Dempsey & Linda S. Forst, An Introduction to Policing 127 (8th ed. 2014) (quoting Sue Rahr) (internal quotation marks omitted).

^ Stoughton, supra note 9, at 867–68.

^ The five riots in response to perceived police abuses were a 2001 Cincinnati riot, the 1992 Rodney King riots, 1967 riots in Detroit and Newark, and the 1965 Watts riot in Los Angeles. Daniel Bukszpan, America’s Most Destructive Riots of All Time , CNBC.com (Feb. 1, 2011), http://www.cnbc.com/id/41372364 [ http://perma.cc/ET8E-LGZZ ]. That does not include the 1973 riot in the Oklahoma State Penitentiary, which was at least partially attributable to abuses within the corrections system, and the 1999 Seattle World Trade Organization riot, which was, by many accounts, exacerbated by police tactics. Id .

^ Nat’l Comm’n on Law Observance and Enforcement, Report on the Enforcement of the Prohibition Laws of the United States 82 (1931) (emphasis added).

^ See President’s Task Force on 21 st Century Policing, Interim Report of the President’s Task Force on 21 st Century Policing 9–10 (2015), http://www.cops.usdoj.gov/pdf/taskforce/Interim_TF_Report.pdf [ http://perma.cc/L9JX-KS96 ]. The Task Force’s Interim Report is the most prominent call for such a transition to date, but it was hardly the first such call. As the deputy director of the Washington State Criminal Justice Training Commission explained late last year, recruit training must be “guided by the underlying goal of producing officers who are guardians as opposed to warriors .” Christopher Moraff, Can Different Training Make Police Officers Guardians, Not Warriors? , Next City (Dec. 4, 2014), http://nextcity.org/daily/entry/change-police-training-task-force-empathy-policing [ http://perma.cc/YC5M-QWKM ].

^ One approach, referred to as “Justice Based Policing,” instructs officers to “Listen and Explain with Equity and Dignity.” Sue Rahr et al., The Four Pillars of Justice Based Policing 1 (2011), http://www.portlandonline.com/auditor/index.cfm?a=368336&c=56523 [ http://perma.cc/ZN62-GGB6 ]. It explains that officers should: Listen — Allow people to give their side of the story; give them voice, and let them vent. Explain — Explain what you’re doing, what they can do, and what’s going to happen. Equity — Tell them why you are taking action. The reason must be fair and free of bias, and show their input was taken into consideration. Dignity — Act with dignity and leave them with their dignity. Id . at 2 (emphasis omitted).

^ Changing two aspects of police training is just the tip of the iceberg, of course, and I have spoken publicly and privately about other suggestions. See, e.g. , Seth Stoughton, Reflections on Policing Police at the 2015 Saint Louis University Public Law Review Symposium (Feb. 20, 2015), http://law.slu.edu/event/thin-blue-line-policing-post-ferguson [ http://perma.cc/2QLJ-RP7U ]. I limit myself here to two particularly important suggestions so as not to exceed the boundaries of a single essay.

^ Jon Schuppe, Science of Strangers: Military Research Could Boost Cops’ People Skills , NBC News (Oct. 22, 2014, 4:58 AM), http://www.nbcnews.com/news/us-news/science-strangers-military-research-could-boost-cops-people-skills-n230951 [ http://perma.cc/53U6-J5H9?type=image ].

^ In some cases, of course, emergency situations will require an enforcement-oriented response.

^ Influential police scholar Carl Klockars went as far as suggesting that excessive force be defined as “the use of more force than a highly skilled police officer would find necessary to use in that particular situation,” taking into consideration the tactical choices that an officer made when approaching the situation. Carl B. Klockars, A Theory of Excessive Force and Its Control , in Police Violence: Understanding and Controlling Police Abuse of Force 1, 8–10 (William A. Geller & Hans Toch eds., 1996).

^ Stoughton, supra note 9, at 868.

^ Chuck Wexler, Op-Ed., Police Curb Use of Lethal Force: Another View , USA Today , Nov. 25, 2014, http://www.usatoday.com/story/opinion/2014/11/25/ferguson-grand-jury-police-lethal-force-editorials-debates/19516001 [ http://perma.cc/P5JX-44QT ].

^ Denver Police Upset After Memorial Vandalized During Protest , N.Y. Times (Feb . 15, 2015), http://www.nytimes.com/aponline/2015/02/15/us/ap-us-police-protest-vandalism.html .

^ Id . It should be noted that this approach was not universally popular. Some officers found the vandalism, as I do, deeply reprehensible, and undoubtedly some intensely disliked not being able to intervene at the time. Id . This is an excellent example of the Warrior and the Guardian in microcosm — a Warrior may very well have moved to immediately apprehend the two vandals. Such a move might have led protestors to attempt to resist, of course, but such interference would have been unlawful. So if the other protestors had interfered, they, too, would have been subject to both immediate arrest and, had they resisted, however much force was necessary to overcome their resistance. Although certainly lawfully justified, that approach creates obvious and substantial risks to both officers and civilians. The guardian approach, in contrast, certainly resulted in psychological distress to some number of officers, but that distress is one of the sacrifices required of officers as they protect and serve their communities.

• Criminal Law

April 10, 2015

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Book Description: In this book, you will examine the moral and ethical issues that exist within law enforcement. This book will also familiarize you with the basic history, principles, and theories of ethics.

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In this book, you will examine the moral and ethical issues that exist within law enforcement. This book will also familiarize you with the basic history, principles, and theories of ethics. These concepts will then be applied to the major components of the criminal justice system: policing, the courts, and corrections. Discussion will focus on personal values, individual responsibility, decision making, discretion, and the structure of accountability. Specific topics covered will include core values, codes of conduct, ethical dilemmas, organizational consequences, liability, and the importance of critical thinking. By the end of this book, you will be able to distinguish and critically debate contemporary ethical issues in law enforcement.

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Perspective: Principles of Effective Law Enforcement Leadership

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Principles of Effective Law Enforcement Leadership

By Dan Willis

Developing into an effective law enforcement leader is a continuous, personal learning process. Leadership is a career-long journey of self-discovery and learning from others. It involves subjugating personal interests to the greater good of others through self-giving and mentoring, developing and promoting those who work for us. It is a process of steadfastly working to fulfill the purpose of our organizations to develop effective law enforcement leaders capable of combating crime and protecting the innocent.

Managers do not merely hold a position but possess a distinct responsibility requiring persistent efforts to proactively develop themselves and motivate, inspire, train, and develop others. Through personal self-analysis and self-discipline, managers can develop those principles that have proven effective and influential with others.

Eight principles of effective law enforcement leadership—if consistently developed and improved upon—can enable any manager to become more influential. Our challenge as managers is to continually self-evaluate to see what we proactively can do to develop and enhance these qualities within ourselves.

The effective manager exemplifies service, self-giving, and selflessness. The core purpose of coming to work every day is to serve, to give our complete attention and effort toward developing and enhancing the abilities and interests of others. Our primary objective is to motivate others to work to their greatest potential toward preventing crime, ensuring professional and compassionate service to the public, and apprehending those who prey upon others. The essence of our profession is to serve and give of ourselves toward a greater good with the highest work ethic possible.

Honesty is essential in both our personal and professional lives. Those who work for us depend upon our honesty with them in guiding their development and providing objective, constructive feedback on their work performance. Managers’ written and oral communications always must be honest and forthright, without ever hiding or minimizing anything from those we work for and never undercutting their authority. Most important, leaders must be honest with themselves, honestly evaluating areas for growth and personal development.

Honesty also means having the courage to professionally tell your commanders your opinions when you believe they have done or are about to do something not in the best interest of their position or that of the department. Such honest communication is essential in a healthy organization.

3) Integrity

Developing and demonstrating integrity is essential for all law enforcement managers. Integrity depends on consistently doing what is right, meaning that which is in the best interest of the organization and of others. When others see that our motives are geared toward their own growth and development and in serving the purpose of the organization before any thought for ourselves, then they readily will trust and follow us.

4) Humility

Humility is a most vital principle in effective leadership. True humility is the quality of always looking for ways to learn from others and improve ourselves. Humility allows others to feel comfortable to come to us with ideas and initiative. Humble managers actively seek the thoughts and advice of others and look for ways to use ideas from others to make the organization more dynamic and responsive to the needs of the employees and the public. Humble managers must realize that the organization will be there long after they leave, and it is essential for them to develop the experience and expertise of those around them.

Effective managers must find ways to tap into the understanding and core beliefs of their employees to get them to identify with the central purpose and nobility of our work. Through frequent and personal interaction with employees, managers can find ways to pass on our passion for the purpose of our work and enable our subordinates to define within themselves a basic understanding of the importance of what we do and how we have the potential to affect so many lives for the good. Getting employees to understand that there is no more noble work than protecting and serving the public well is vital for effective management.

6) Mentoring

“Developing into an effective law enforcement leader is a continuous, personal learning process.”

If they are not looking constantly for ways to mentor and develop their employee, managers are not truly leading. Managers have a duty and responsibility to pass on all that they possibly can to those they supervise. Effective leaders know how much they are in debt to so many people for their own development, and each has the moral duty to teach and develop others in return. The more managers can teach and mentor others, the more effective the organization will become. The effective manager’s most persistent endeavor is to find ways to guide, develop, teach, train, and provide experience for those they supervise.

7) Positive/Constructive Attitude

Managers who genuinely portray a positive and constructive attitude are like a magnet that draws others toward them. Always contagious, a positive, optimistic attitude enables employees to look for the good and to try to be constructive working to change things for the better. Effective managers consistently should portray the attitude of moving forward constructively, always looking for positive improvement and the willing cooperation of others.

Effective managers need to trust their employees. Initiative is crippled when they do not. And, without initiative, an organization becomes stagnant and unproductive. Through delegation, follow-through, and setting reasonable and clear performance expectations, managers can mentor and develop their employees while giving them the trust that everyone needs to feel. Managers must recognize that it is possible for an employee to perform a job differently or not as well as they do. Such performance is an integral part of the learning and development process. The more an employee feels trusted, the more they will take the initiative and work harder for their manager.

Effective law enforcement managers should be persistently looking within themselves to honestly evaluate how they can work proactively to develop each of these principles of leadership. Effective managers always look for ways to learn from others and to actively train and develop them to become future leaders of the organization. Through the cultivation of an attitude of service, selflessness, giving, and devotion to our core purpose as law enforcement officers, we as managers can learn how to become more influential with our employees and to guide them in providing the most effective and professional service to the public.

“Effective managers always look for ways to learn from others and to actively train and develop them to become future leaders of the organization.”

• Leadership Spotlight: Hey, Did You Hear About…?
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AI Regulation Continues to Grow as Illinois Amends Its Human Rights Act

Following laws enacted in jurisdictions such as Colorado, New York City, Tennessee, and Illinois’s own Artificial Intelligence Video Interview Act, on Aug. 9, Illinois Gov. J.B. Pritzker signed  House Bill 3773 , also known as the “Limit Predictive Analytics Use” bill. The bill amends the Illinois Human Rights Act by adding certain uses of artificial intelligence, including generative AI (GenAI), to the long list of actions by covered employers that could constitute civil rights violations. 

The amendments made by HB 3773 will take effect Jan. 1, 2026, and add two new definitions to the law.

According to the amendments, AI means “a machine-based system that, for explicit or implicit objectives, infers, from the input it receives, how to generate outputs such as predictions, content, recommendations, or decisions that can influence physical or virtual environments.”

The definition of AI includes GenAI, which has its own definition: “an automated computing system that, when prompted with human prompts, descriptions, or queries, can produce outputs that simulate human-produced content, including, but not limited to, the following: 1) textual outputs, such as short answers, essays, poetry, or longer compositions or answers; 2) image outputs, such as fine art, photographs, conceptual art, diagrams, and other images; 3) multimedia outputs, such as audio or video in the form of compositions, songs, or short-form or long-form audio or video; and 4) other content that would be otherwise produced by human means.”

The plethora of AI tools available for use in the workplace continues unabated as HR professionals and managers vie to adopt effective and efficient solutions for finding the best candidates, assessing their performance, and otherwise improving decision-making concerning human capital. In addition to understanding whether an organization is covered by AI regulations such as HB 3773, it also is important to determine whether the technology being deployed falls within the law’s scope. Assuming the tool or application is not being developed in-house, this analysis will require, among other things, working closely with the third-party vendor providing the tool or application to understand its capabilities and risks.

According to the amendments, covered employers can violate the act in two ways. First, an employer that uses AI with respect to recruitment, hiring, promotion, renewal of employment, selection for training or apprenticeship, discharge, discipline, tenure, or the terms, privileges, or conditions of employment and whose actions have the effect of subjecting employees to discrimination on the basis of protected classes under the act may constitute a violation. The same may be true for employers that use ZIP codes as a proxy for protected classes under the act.

Second, a covered employer that fails to provide notice to an employee that the employer is using AI for the purposes described above may be found to have violated the act.

Unlike the Colorado or New York City laws, the amendments to the Illinois act do not require an impact assessment or bias audit. They also do not provide any specifics concerning the notice requirement. However, the amendments require the Illinois Department of Human Rights to adopt regulations necessary for implementation and enforcement. These regulations include rules concerning the time period and means for providing notice.

There will most likely be more regulation in this space. It is expected that some common threads will exist among the various rules and regulations concerning AI and GenAI, but organizations leveraging these technologies will need to be aware of the differences and assess what additional compliance steps may be needed.

Joseph J. Lazzarotti is an attorney with Jackson Lewis in Tampa, Fla. Eric J. Felsberg is an attorney with Jackson Lewis in Long Island, N.Y. © 2024 Jackson Lewis. All rights reserved. Reposted with permission.

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