Thursday, May 28, 2020

Police Brutality

People are quite reasonably upset about police violence in the aftermath of the recent case of George Floyd being killed during a traffic stop. We go through this recurring cycle, though, and it raises the question of what to do about it; anger on its own clearly accomplishes nothing. A number of different proposals have been made, some sound, some obviously stretching. The ones that I think are particularly sound are:

(1) Statutory strengthening of Bill of Rights protections. Over the years, courts have, case by case, created a long series of exceptions to protections against warrantless searches, expanded what counts as probable cause, reduced guarantees of due process, etc. Some of these qualifications and modifications, if they were solitary, could perhaps be justified as part of what counts as reasonable application of law, but the actual result is that our 'criminal justice protections' have become a swiss cheese riddled with loopholes. The most obvious example of a court-doctrine that needs to go, and could easily be removed by statutory means, is qualified immunity, which on its own effectively hollows out most of the protections of citizens when police are involved.

(2) Encouragement of community policing. There are quite a few reasons to think that police usually work better when they are not imposed from without but part of its ordinary functioning.

(3) Treating police as the last line, not the first line, in law enforcement. The fundamental absurdity of much of the police violence that we see is that it derives from traffic policing. There is no good reason for that. But it's easy to see why it happens; police pull someone over for X -- or sometimes even just 'suspicious behavior' -- and then something else gets added to X, and then it snowballs from there. There's a good argument from this that traffic police should be generally confined to traffic violations; if they actually see reason to do more, they should pass your information on to other cops to investigate. Some people have argued that traffic stops should be eliminated entirely; others have argued for other things. But they all recognize what is in fact one of the key problems: that the move to the police being involved is in these cases too swift. Police are being treated as the first step in enforcing the law when in reality they are poorly suited for it, and should be the last resort.

There are a number of proposals that are popular but that I think are highly misguided. Police unions are a popular target, because you can convince conservatives that a union is a problem even if it is a police union and you can convince progressives that a police union is bad even though it's a union. But this is an artifact of our habits of discourse. Police unions are not the source of the problem; they are just doing what all unions do: in this case, making sure that members are as protected as possible. They happen to be much more effective about it than most unions, but it's hardly a criticism of a police union that it's doing exactly what it's supposed to be doing, or that it's protecting the rights of its members too well, and all the reasons for having any unions at all are also reasons for having police unions. It's true that police contracts are often heavily loaded with extraordinary protections, but this is not really surprising: if the protections can be had, a union is negligent in not making sure its members have it. The contracts are just what the law allows; the complaints people have about them are really complaints about the laws as interpreted by the courts. They are a symptom, not a source of the disease.

Another popular proposal is to elect and appoint more minority officials. There are independent reasons why you might do this, but you have only to look at the cases that come up to see that this does not usually seem to have any effect on police violence. Nor is it surprising that it wouldn't. The offices that people are talking about are not the reason why we have the problem; it's like trying to reduce assault by electing nicer people to water commissioner. The two have no direct relation to each other. The root problem is judicial handling of police accountability. Anything that does not bear on that is not going to do much. Some offices do have some connection to this, but as long as the courts handle police accountability poorly, the resulting incentive-structure will inevitably push people in the wrong direction, regardless of who they are or what their intentions are. Political currents when backed by the courts are very strong, and hard to push against. Judicial problems are usually only solved by legislative acts, although since courts work by cases, you can sometimes reduce them by reducing occasions for relevant cases to come up.

But such distractions aside, there are very specific things that could be done, and that for the most part would be easy to do, and that people even keep proposing; and yet not only do they not get done, we seem to get farther and farther from doing them. I have no idea what the reason for that is.