2
Article
2016

Keynote Address Policing in the 21st Century: The Importance of Public Security

Tracey L. Meares
Walton Hale Hamilton Professor of Law at Yale Law School
TABLE OF CONTENTS

I was honored to be asked by the student leaders of the University of Chicago Legal Forum to give this keynote, and thrilled, really, to be back home. Hyde Park has changed so much and in so many good ways. I admit to feeling sad about the demise of Ribs and Bibs, though. The food was not always great, but the sniffs were incomparable.

I have thought a great deal about what I wanted to say today. My primary goal was to emphasize the hard work—great work—that I, along with ten other colleagues who range from police chiefs to young activists, from civil rights lawyers to union representatives, who all served on President Obama’s Task Force on 21st Century Policing,1 have done. The task force was created in the wake of the shooting of Michael Brown in Ferguson and the death of Eric Garner in New York City at the hands of New York City Police.2 The president was especially concerned about the unrest that followed these incidents, stating:

[W]hen any part of the American family does not feel like it is being treated fairly, that’s a problem for all of us. It’s not just a problem for some. It’s not just a problem for a particular community or a particular demographic. It means that we are not as strong as a country as we can be. And when applied to the criminal justice system, it means we’re not as effective in fighting crime as we could be.3

Our Task Force was charged with examining how to foster strong, collaborative relationships between local law enforcement and the communities they protect, and to make specific recommendations to the President on how policing practices can promote effective crime reduction while building public trust. And so our first pillar—our report is divided into six pillars—ended up being called “Building Trust and Legitimacy.”4 It is the foundation of good policing.

But, after I was in town last week for the International Association of Chiefs of Police annual conference, where I heard FBI Director James Comey speak at the PERF (that’s the Police Executive Research Forum to non-insiders) annual town meeting,5 I decided to shift the emphasis of my remarks.

At that meeting, Comey, who, like me, is an alum of this Law School, echoed what he had said days before right here at the University of Chicago Law School.6 He worried about a national spike in homicide, and he said, referencing a conversation he had with an officer who was uncomfortable getting out of his car and who felt he was under siege because people were watching him with a cell phone:

I don’t know whether this explains it entirely, but I do have a strong sense that some part of the explanation is a chill wind blowing through American law enforcement over the last year. And that wind is surely changing behavior.7

I will leave aside for the moment whether there really is a national surge in homicide that we need to explain at all, and whether, even if there were a national surge in homicide, there is any reliable and serious data supporting the conclusion that there is an actual change in police behavior, as opposed to anecdotal reports of understandable changes in feelings and attitudes of police, who are being scrutinized more closely than they ever have been before.

Although I am happy to return to both of these topics, what I would like to focus on in my remarks today is the fact that I think the public safety narrative has lost its way. It needs to be redirected and reshaped.

Let me explain. The President’s Task Force Report makes building public trust central to the mission of policing.8 The question is: how do we do it?

The public safety narrative, and by that I mean, the narrative that crime reduction is absolutely central to what police do, how many police we have, and the like, suggests that public support for and confidence in police is directly related to the public’s evaluation of police effectiveness at tasks such as crime fighting and crime reduction.

This turns out not to be the case.9 You might find that surprising in a world in which there is so much discussion of police effectiveness in media and policy circles. Comey’s remarks that I noted at the outset of this talk echo this idea as well.10 It might surprise some of you under the age of thirty to learn that the idea that police effectiveness at crime reduction as a metric that should matter with respect to evaluation of police is of relatively recent vintage. For decades, many scholars of policing, and police themselves, believed that law enforcement had little impact on crime rates.11

Venerable police scholar David Bayley, who several in this room have worked with and know well, summed up this view nicely in his 1994 book, Police for the Future:

The police do not prevent crime. This is one of the best-kept secrets of modern life. Experts know it, the police know it, but the public does not know it. Yet the police pretend that they are society’s best defense against crime and continually argue that if they are given more resources, especially personnel, they will be able to protect communities against crime. This is myth.12

Today, of course, police executives are expected—and expect themselves—to reduce crime rates in their jurisdictions. Policing’s potential to impact crime rates is conventional wisdom thanks in large part to the work of folks in this room like David Weisburd and Frank Zimring, and, across the Midway, like Steve Levitt.

However, as my colleague, Tom Tyler, noted in his testimony before the Task Force several months ago, while police seemingly have become better and better over time at reducing and addressing crime, surveys indicating levels of public support for and confidence in police have remained relatively flat over the period of time in which crime rates have fallen precipitously.13 If perceptions of trust were grounded in assessments of police effectiveness, this is not what we should be finding, right?

One might ask then, if police effectiveness does not drive public trust, what does? Another answer might be police lawfulness. Again, in light of the repeated incidents of quite shocking police brutality—consider here the tragic death of Walter Scott in North Charleston, South Carolina, who was shot in the back by a white police officer as he fled14 —we might think that commitment to the rule of law and especially constitutional constraints that shape engagements between the public and the police would support public trust. Of course police compliance with the law is a critical component of a legitimate state.

There are at least two problems with a potential relationship between levels of public trust and police commitment to lawfulness. The first is an objective measure of the extent to which police obey relevant law over time. While repeated likely unlawful incidents shown again and again across social media understandably cause people to question the extent to which police obey the law with respect to police use of deadly force, there is wide scholarly consensus that over time—the last forty years or so—the level of unlawful police killings has decreased significantly.15 The second problem is the public’s perception of the extent to which police actually obey the law. Research suggests that the public is not, unsurprisingly, very good at making these assessments. My own research with Tom Tyler and Jacob Gardener demonstrates that public judgments of police legitimacy leading to public trust and confidence are not very sensitive to whether police are behaving consistent with constitutional law in fact.16 The public does not define lawfulness or determine sanctioning through the same lens of legality that police and other legal authorities use.17

If our goal is the promotion of public trust then we must recognize that while both police effectiveness at crime reduction and police lawfulness are both relevant, neither alone is sufficient. The public safety narrative lost its way when its primary advocates began to argue that police effectiveness at crime reduction is self-justifying. It is not.18

We need a new narrative. I have decided in this lecture to emphasize security as opposed to safety, but there may be a better phrase. The primary point is simply this: We need a mission statement for policing that recognizes that people desire to be kept safe from each other (security against private predation), as well as be free from government repression (security against government overreach). And that pursuit of both is not a zero-sum game.

How to achieve both? With a commitment to policing that makes legitimacy and procedural justice central to its mission. No doubt you will learn much more about this research when Tom Tyler summarizes his paper,19 but let me sketch out the basic points.

As I have just mentioned, people’s conclusions regarding their assessments of the fairness of legal actors, institutions, and law does not flow from their assessments of police effectiveness regarding tasks such as crime reduction or apprehension of wrongdoers. People tend to place much more weight on how authorities exercise power as opposed to the ends for which that power is exercised. Researchers have studied public evaluations of police officers, judges, political leaders, managers, and teachers, and the findings are consistent; conclusions regarding legitimacy are tied more closely to judgments of the fairness of actions than to evaluations of fairness or effectiveness of the outcomes.20

In the social psychological literature, judgments regarding fairness depend primarily upon a model that has four dimensions.21 First, participation is an important element. People report higher levels of satisfaction in encounters with authorities when they have an opportunity to explain their situation and perspective on it. Second, people care a great deal about the fairness of decision-making by authorities. That is, they look to indicia of decision-maker neutrality, objectivity, and factuality of decision-making, consistency in decision-making, and transparency. Third, people care a great deal about how they are treated by organization leaders. Specifically, people desire to be treated with dignity, with respect for their rights, and with politeness. Fourth, in their interactions with authorities, people want to believe that authorities are acting out of a sense of benevolence toward them. That is, people attempt to discern why authorities are acting the way they do. They want to trust that the motivations of the authorities are sincere, benevolent, and well intentioned—what we call motive-based trust.22

Basically, members of the public want to believe that the authority they are dealing with—let’s say a police officer—believes that they count. And the public makes this assessment by evaluating how the police officer treats them. This dynamic is inherently relational, not instrumental. Rather than being primarily concerned with outcomes and individual maximization of utility, legitimacy-based compliance is centered upon individual identity.23

One implication of this is that when police generate good feelings in their everyday contacts, it turns out people also are motivated to help them fight crime.24 And we can expect all of this to lead to lower crime rates in communities. Additionally, safer communities are not the only important result of law enforcement authorities and other government representatives treating people with dignity and fairness. Another potential result is healthy and democratic communities. Finally, research shows that this approach leads to policing that is better and healthier for cops on the street.25

The question is: how do we get there? The President’s Task Force made a number of recommendations. I will highlight a handful of them, but I encourage you to read the report.26 There are a large number of important concrete recommendations, and it will take all of us working together to get them implemented and make a change.

First, the Task Force recommended that law enforcement agencies embrace a guardian mindset in order to build public trust and legitimacy.27 This recommendation encapsulates the thinking of another Task Force member, former sheriff Sue Rahr, who has written that officers must shift from a warrior mindset to a guardian mindset in order to adopt behaviors consistent with procedural justice.28 Importantly, this cultural change has both internal and external aspects, in that officers must be treated with procedural justice within their organizations in order to support their ability to behave this way outside of it.

This recommendation is a tall order. It requires policing agencies to fundamentally change the way officers are trained. It requires top to bottom overhaul of the way the organization treats its workers. Subsidiary strategies include diversifying the workforce. Our policing agencies need more women, more educated officers, and more people of color. Training on de-escalation techniques and crisis intervention training are a must. I could go on and on. Likely organizational change such as force consolidation is also necessary, because this kind of training is expensive, and it is inefficient and maybe even impossible to manage this kind of overhaul among 18,000 separate agencies.29

Second, the Task Force recommended that agencies acknowledge the role of policing in past and present injustice and discrimination, and how it is a hurdle to promotion of community trust.30 This recommendation cannot be emphasized enough. There have been powerful and poignant examples of practices whereby police officials have come together with representatives of affected communities and neighborhoods for conversations about dueling narratives that undermine trust. And there are incredibly moving accounts of individual officials deciding to acknowledge the past transgressions of those in uniform before them. One story in particular makes the point quite succinctly. Police Chief Kevin Murphy of Montgomery, Alabama, was a born a year after John Lewis and the Freedom Riders famously traveled to Montgomery and were brutally and viciously beaten by a white mob—the Montgomery police nowhere to be found.31 One spring day in 2013, Chief Murphy was a part of a delegation that welcomed Lewis back to Alabama, and he told Representative Lewis: “I want to apologize,” he began. “We failed to protect you and the other Freedom Riders. In 1961, Montgomery police were not very good to you. But today, we’re a better department.”32 After Chief Murphy apologized to Representative Lewis, he gave Lewis his badge.

This is obviously a powerful act of symbolic reconciliation. How to do this work on a large scale is daunting, but it is necessary. Recall that a critical component of procedural justice is motive-based trust. It is extremely difficult for people who have been treated poorly as a group to expect benevolent treatment, so extraordinary acts—apologies, reparative strategies—are necessary and likely not sufficient. Certainly proceeding as if the past never happened is not an option. This is one poignant lesson of the nascent Black Lives Matter movement.

Third, I return to where I began. It is imperative that policing agencies recognize that crime reduction is not self-justifying. Police action taken for the purpose of making communities safer, especially aggressive police action, can have the counter-productive result of destroying the very reservoir of trust on which communities and policing agencies depend for a proper functioning system. So the idea promoted by folks like Raymond Kelly,33 Rudy Giuliani,34 and former Mayor Michael Bloomberg35 that we ought to somehow balance the benefits that groups of people such as African Americans receive from plummeted crime rates without truly acknowledging and understanding the costs to them in terms of enforcement—and here I am not just talking of incarceration—is shortsighted and deeply, deeply flawed.

Their argument’s premise is that aggressive policing is necessary to achieve crime reduction, and that is just false. Research is quite clear that promotion of public trust is actually associated with compliance. This means that policing agencies can achieve their goal of enhancing public safety while at the same time increasing public trust through a greater commitment to procedural justice.

While the prescription is very straightforward, the process of taking the medicine is not. One might imagine the old treatment for rabies. I am probably dating myself, but when I was a kid the treatment for rabies was twenty-one shots in the abdomen. I understand that is no longer the case. But back then the shots were painful, and the treatment seemed to last forever. I think the path to police reform will be something like this. A narrow prescription that is difficult to endure but worth it because the alternative literally is death.

Change will be painful for policing organizations. There will be resistance. There already is. Path dependency is strong. There is a sense of righteousness. Change will be difficult for the communities of people most deeply affected. Think of disadvantaged neighborhoods in Baltimore who have long distrusted the police. There will be resistance. There already is. Path dependency is strong. There is a sense of righteousness.

So why be hopeful? The Attorney General of California undertook an initiative requiring procedural justice and implicit bias training for every agency across the state.36 Illinois has passed, and the governor has signed, omnibus police reform legislation requiring independent investigation and prosecutions of police shooting, regulations around body cameras, procedural justice training, and receipts for every single police stop.37 Massachusetts is requiring new peace officer standards and training requirements promoting the ideas outlined in the President’s Task Force Report,38 and so on. The New York Police Department recently announced that it will begin to document every single instance of use of force, including in stops.39 There is movement and response to the national conversation.

But I think we need deeper change. If you go to the website of the Invisible Institute, organized by Jamie Kalven—Harry Kalven’s son—you will see videos of a handful of students recount their experiences with Chicago police.40 One of the interviewers, Professor Craig Futterman, describes the world that the kids live in as one governed by an alternative constitution.41 That description resonates with me.

I think we are in the midst of a national moment. One in which we are attempting to understand and work toward the terms of citizenship in a very real way that neither the First nor the Second Reconstructions achieved, even while they may have provided the legal architecture for doing so. The Constitution through the Reconstruction Amendments,42 and Congress through the Civil Rights Act43 and the Voting Rights Act,44 provided what we might think of as a formal curriculum of citizenship. These laws tell us who we are by how we value freedoms of all individuals.

But how police treat people in public, and especially in neighborhoods such as those in which the Chicago teens reside, offers a “hidden curriculum” that is inconsistent with the formal curriculum.45 The idea of a hidden curriculum comes from those who study education and is reflected in how classrooms are organized, who are the mascots, where kids sit in the lunchroom, and who is and is not called on in civics class. When the hidden curriculum clashes with the formal curriculum, we are provided with instruction regarding who is and who is not a citizen. Citizens are those whose treatment by a legal authority is consistent with the formal curriculum of rights.

Some have said we are in the nascent moments of the Third Reconstruction. I hope so. I would like to think that this time we will get it right. How do we do that? Once we have a system in which the formal and hidden curricula are the same for everyone, we will have achieved the goal of the Third Reconstruction. Let’s hope we are on the path to its achievement.

  • 1See generally Press Release, Office of the Press Secretary, Fact Sheet: Task Force on 21st Century Policing (Dec. 18, 2014), https://www.whitehouse.gov/the-press-office/2014/12/18/fact-sheet-task-force-21st-century-policing (https://perma.cc/K9UD-9SW9).
  • 2See id.
  • 3Press Release, Office of the Press Secretary, Remarks by the President After Meeting with Elected Officials, Community and Faith Leaders, and Law Enforcement Officials on How Communities and Law Enforcement Can Work Together to Build Trust to Strengthen Neighborhoods Across the Country (Dec. 1, 2014, 4:25 PM), https://www.whitehouse.gov/the-press-office/2014/12/01/remarks-president-after-meeting-elected-officials-community-and-faith-le (https://perma.cc/L3ZJ-AN4A).
  • 4President’s Task Force on 21st Century Policing, Building Trust and Legitimacy, in Final Report of the President’s Task Force on 21st Century Policing 9 (May 2015).
  • 5See James Comey, Director, FBI, Remarks at 2015 International Association of Chiefs of Police Conference (Oct. 26, 2015) (transcript available at https://www.fbi.gov/news/speeches/keeping-our-communities-safe-through-shared-perspectives-information-and-understanding (https://perma.cc/7JQW-WYVM)).
  • 6See James Comey, Director, FBI, Remarks at University of Chicago Law School: Law Enforcement and the Communities We Serve: Bending the Lines Toward Safety and Justice (Oct. 23, 2015) (transcript available at https://www.fbi.gov/news/speeches/law-enforcement-and-the-communities-we-serve-bending-the-lines-toward-safety-and-justice (https://perma.cc/S58D-QSMB)).
  • 7Id.
  • 8President’s Task Force on 21st Century Policing, Final Report of the President’s Task Force on 21st Century Policing 1–2, 9–18 (May 2015).
  • 9See, e.g., Tom R. Tyler, Enhancing Police Legitimacy, 593 Annals Amer. Acad. Pol. & Soc. Sci. 84, 86 (2004) (“[S]tudies of the public and public views about and cooperation with the police suggest that the public’s reactions to the police are again only loosely linked to police effectiveness in fighting crime, suggesting that the police performance is an insufficient basis for gaining the cooperation of the public.”).
  • 10See supra note 6.
  • 11See, e.g., David H. Bayley, Police for the Future (1994).
  • 12Id. at 3.
  • 13Tom R. Tyler, Testimony to the President’s Task Force on 21st Century Policing 1 (Jan. 13, 2015), http://cops.usdoj.gov/pdf/taskforce/submissions/Tyler-Tom-Testimony.pdf (https://perma.cc/3SJJ-9Y9N).
  • 14Michael S. Schmidt & Matt Apuzzo, South Carolina Officer Is Charged with Murder of Walter Scott, N.Y. Times (Apr. 7, 2015), http://www.nytimes.com/2015/04/08/us/south-carolina-officer-is-charged-with-murder-in-black-mans-death.html?_r=0 (https://perma.cc/T48Q-ZMSE).
  • 15 It is extremely difficult to ascertain a good national measure of police killings of civilians whether lawful or unlawful, but consider one area of police use of force that has been well litigated over the years—police car chases. New policies to restrict police from engaging in high speed car chases have resulted in many lives saved. See Hugh Nugent et al., Restrictive Policies for High-Speed Police Pursuits, U.S. Dep’t of Justice: Nat’l Inst. of Just. (1990) https://www.ncjrs.gov/pdffiles1/Digitization/122025NCJRS.pdf (https://perma.cc/W4ND-MJ9Q).
  • 16See Tracey L. Meares et al., Lawful or Fair? How Cops and Laypeople Perceive Good Policing, 105 J. Crim. L. & Criminology 297, 300 (2016).
  • 17Id. at 108.
  • 18President’s Task Force on 21st Century Policing, supra note 8, at 16.
  • 19See generally Tom Tyler, Police Discretion in the 21st Century Surveillance State, 2016 U. Chi. Legal F. 579.
  • 20See Tyler, supra note 9, at 91 (making this point and collecting various studies).
  • 21See generally Jeffrey Fagan et al., Street Stops and Police Legitimacy in New York, in Comparing the Democratic Governance of Police Intelligence: New Models of Participation and Expertise in the United States and Europe 203, 213–14 (Jacqueline E. Ross & Thierry Delpeuch eds.) (2016).
  • 22See Tom R. Tyler, Procedural Justice, Legitimacy, and the Effective Rule of Law, 30 Crime and Just. 283, 294 (2003).
  • 23Fagan et al., supra note 21, at 213.
  • 24Tom R. Tyler, Why People Cooperate: The Role of Social Motivations (2011); Tom R. Tyler & Jeffrey Fagan, Legitimacy, Compliance and Cooperation: Procedural Justice and Citizen Ties to the Law, 6 Ohio St. Crim L. J. 231 (2008).
  • 25See Tom R. Tyler & Jeffrey A. Fagan, American Policing in the 21st Century: Legitimacy as a Key Concern, 40 Fordham Urb. L.J. 119 (2015), http://urbanlawjournal.com/american-policing-in-the-21st-century-legitimacy-as-a-key-concern/ (https://perma.cc/ZQQ7-JCCU).
  • 26President’s Task Force on 21st Century Policing, supra note 8.
  • 27Id. at 11.
  • 28Sue Rahr & Stephen K. Rice, From Warriors to Guardians: Recommitting American Police Culture to Democratic Ideals, in New Perspectives in Policing (Harvard Kennedy School 2015).
  • 29See U.S. Dep’t of Justice, Bureau of Just. Statistics, Nat’l Source of Law Enforcement Employment Data 1 (Apr. 2016) (“Law enforcement in the United States is made up of about 18,000 federal, state, county, and local agencies.”).
  • 30President’s Task Force on 21st Century Policing, supra note 8, at 12.
  • 31John M. Glionna, Police Chief ’s Apology Sows Healing, Friendship, L.A. Times
    (Sept. 23, 2014), http://www.latimes.com/nation/la-na-c1-civil-rights-friends-20140923-story.html#page=1 (https://perma.cc/M3T6-WS5P).
  • 32Id.
  • 33See Thomas Tracy, Ex-NYPD Commissioner Raymond Kelly Says Black Lives Matter Protesters Are ‘Silly,’ Will Have No ‘Impact on Anything’, Daily News (Aug. 6, 2016), http://www.nydailynews.com/news/politics/raymond-kelly-calls-black-lives-matter-protesters-silly-article-1.2741159 (https://perma.cc/83AY-P3TK) (quoting Raymond Kelly, stating that, “[a] vast majority of cops do a good job and the major beneficiaries of the crime reduction have been communities of color”).
  • 34See Jamelle Bouie, Rudy Giuliani Doesn’t Understand Crime as Well as He Thinks, Slate (Nov. 25, 2014), http://www.slate.com/articles/news_and_politics/politics/2014/11/rudy_giuliani_doesn_t_understand_crime_the_former_new_york_city_mayor_is.html (https://perma.cc/W5JH-KWXS) (quoting Rudy Giuliani, stating that white police officers are only in black communities to combat crime).
  • 35Dylan Matthews, Here’s What You Need to Know About Stop and Frisk—And Why the Courts Shut It Down, Wash. Post (Aug. 13, 2013), https://www.washingtonpost.com/news/wonk/wp/2013/08/13/heres-what-you-need-to-know-about-stop-and-frisk-and-why-the-courts-shut-it-down/ (https://perma.cc/H278-CHA8) (quoting Michael Bloomberg, stating the court failed to acknowledge stop and frisk has led to historic cuts in crime).
  • 36Office of the Att’y Gen., Attorney General Kamala D. Harris Kicks Off First-of-Its-Kind Law Enforcement Training on Implicit Bias & Procedural Justice, State of Cal. Dep’t of Justice (Nov. 17, 2015), https://oag.ca.gov/news/press-releases/attorney-general-kamala-d-harris-kicks-first-its-kind-law-enforcement-training (https://perma.cc/YZ3B-TRBU).
  • 3750 Ill. Comp. Stat. 727/1-1 (2016).
  • 38Mass. Gen. Laws 6, § 116–19 (2013).
  • 39Al Baker & J. Davis Goodman, New York Police Will Document Virtually All Instances of Force, N.Y. Times (Oct. 1, 2015), http://www.nytimes.com/2015/10/01/nyregion/new-york-police-will-document-virtually-all-instances-of-force.html (https://perma.cc/U8GM-L643).
  • 40Youth/Police Project, Invisible Institute, http://invisible.institute/ypp/ (https://perma.cc/5AZU-TP5N) (last visited Aug. 15, 2016).
  • 41See Craig B. Futterman et al., “They Have All the Power” Youth/Police Encounters on Chicago’s South Side, 2016 U. Chi. Legal F. 125, 129.
  • 42U.S. Const. amends. XIII, XIV, XV.
  • 4378 Stat. 241 (1964).
  • 4479 Stat. 437 (1965).
  • 45See Benjamin Justice & Tracey L. Meares, How the Criminal Justice System Educates Citizens, 651 Annals Amer. Acad. Pol. & Soc. Sci. 159 (2014).