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Saturday, July 25, 2009

President Obama and the Paradoxes of Police Power

The  end of the week controversy over Professor Henry Louis Gate's arrest in Cambridge, and President Obama's own comments on that arrest, may have presented the nation with a "teaching moment" about race and policing (Gate's words quoted in the NYTimes story by Peter Baker and Helen Cooper).  It has already been one about the national importance of police power since the "war on crime."

First, the idea tha President Obama erred by making a "neighborhood story" into a "national" one is wrong historically.  Policing the neighborhood has been a national issue since the mid-1960s.  Every president since LBJ has posed as frequently as possible with large phalanxes of uniformed local police.  The politicians who have most sought public police support, including Bill Clinton, George W. Bush, and Rudolph Guliani, have all reaped national benefits.  If President Obama did something different it was varying from the tone of reverential solemnity and adoration in describing the "boys in blue".  I will leave it to our linguists to parce whether the President's use of the phrase "stupid" was a mistake that opened the door to class conflicts,  I suspect that no matter how carefully he had crafted his message, anything recognizably critical would have been met by the kind of response it has.  The first paradox than is that police operate locally but since the "war on crime" became a national crusade, police have become what the military is in foreign wars, a sacralized  metaphor for the national public itself.  Sgt. Crowley, once surrounded by the national police community and the deeply ingrained media love affair with the police (anchors are almost as eager as politicians to pose with them), is actually the equal of President Obama in stature. (more paradoxes after the fold)

It wasn't always so.  At mid-20th century the police were viewed as an emblem of the corruptness and incompetence of local government in general as any Raymond Chandler novel (or film based thereon) will attest.   Pre-"war on crime" local police were arrayed against a set of locally based "illegalities" that had more or  less support in the community.  What changed was not improvements and reform in policing (although that has happened) but a national war on crime that made them front line soldiers against the uniformly perfidious enemies of "crime," "disorder," and now "terror."  Yet even as they have become the chief public face of the war on crime and a symbol of national citizenship itself, police have found themselves on the losing end of the resource explosion in crime control.   I would suspect it is mainly a level of governmet problem.  Prisons are controlled by state governments which have many more revenue and spending options, as well as a much stronger presence before national government in Washington D.C. than cities and counties do. This is the second paradox.  While prison systems have grown 3,4, or 5 times the size they were in the 70s, most police depatments have hardly grown (my colleague Justin McCrary is now exploring the extent and determinants of this disparity) and they therefore lack the resources to do the job they are constantly touted for dying bravely in the name of. 

That police became a national symbol of citizenship in the 1960s has only deepened the injury created by the undeniable gulf in the way black (and largely latino) communities experience policing (Charles Blow summarizes some of the elements in his NYT column today) .  The antagonism between police and minority communities (especially black communities) is as old as European settlement and slavery in the Americas.  As Berkeley English Professor Bryan Wagner shows in a fascinating article  about police politics in antebellum New Orleans [Disarmed and Dangerous: The Strange Career of Bras-Coupé, Representations No. 92, Fall 2005, the article may require access codes or fees to view], the black man outside the control of slavery is the constitutive image of the threat against which police power was defined and justified.  Black men (and to some degree women and other men of color) find themselves presumptively viewed  as disorderly and must perform docility in order to reassure police [Juan Williams gave a stunningly unself-conscious description of how he personally gives this kind of performance as he criticized President Obama for failing to perform it, in a discussion on Weekend Edition Saturday, this morning).  While police departments have gone a long way toward institutionalizing racial sensitivity, including Cambridge where Sgt. Crowley was a trainer on race issues, they cannot erase this ontological link, a problem that has only been exaccerbated by their ascendance to a national symbol of consensus. This is the third paradox. Just as black and latino citizens were getting their citizenship recognized in law in the 1960s, their most historically problematic adversary, the police, were becoming the standard bearer for that national citizenship.

But while the police officer symbolically represents the  nation, the police view themselves as a "band of brothers" (quoted in Michael Wilson and Solomon Moore's story on police citizen encounters in today's NYTimes) sworn to protect each other over any other citizen or the public in general when that comes into conflict.  Moreover, most citizens of any color who deal with the business end of policing in the streets comes to understand this perfectly well.  This is my final paradox.  The public and political adoration of the police coexists uneasily with the fact that this powerful armed society within a society exercises huge and mostly unreviewable power over all Americans as individuals.

For all these reasons it would take an Obama to make this a truly teachable moment for America.  But it would have to be a 45 minute "moment" and not a quip at the end of a press conference.  Is this the right time for that moment nationally?  Probably not.

Posted by Jonathan Simon on July 25, 2009 at 01:41 PM in Criminal Law | Permalink


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Two points.

First, prosecutors often will not prosecute public disorder crimes. Most often arrests for public disorder crimes are meant to solve situationl problems, not generate court cases. In california this inscribed in statutory law (148(a)(1)Penal Code, 647(f) Penal Code, and the release without charges section of 849(b)(2)Penal Code). I am not saying that Crowely should have made the arrest. I also do not know MA's public disorder laws well enought to know if Crowley had probable cause to arrest. But even if Crowley had probable cause that does not mean that the DAs office will prosecute as the standards of probable cause are lower than that of beyond reasonable doubt. Now, it may be that the DA's office refused to file charges becuase they felt that the threshold of probable cause was not met, but I don't know.

The second point is that it does not follow from the fact that Gates was arrested that there are no functioning checks and balances. To make that assesment requires several unstated assumptions. The first being that Gates's arrest was in fact illegal. The second being that the officers on scene knew the arrest was illegal and failed to intervene. (It is possible the officers present did not know all the facts of the case and thus did not have information at hand leading them to intervene; or that they judged Crowleys actions as legal and permissible and that this happens to be at variance with the general public.) Third, that the DA's office somehow did not review the case. Assumptions one and two are not given antecedents and can't be assumed since they are empirical questions. The review process did work in the sense that the DA's Office came the conclusion that charges were not necessary to be filed. If the DA's feel that the arrest was illegal and needs to be remedied that will likely go to internal affairs, refer it to a DA investigator, or to county counsel. But there is a temporal order to review. Review is not simultaneous with each arrest as there is not a Sergeant or a DA in every police car. The introduction of Mobile Audio Visual devices, increased civilian review, and a growing culture of accountability in police management are all attempts to retroactively review arrests and make sure that bad ones don't occur in the future.

Further we may feel that the arrest was inappropriate, unecessary and illegitmate but that does not make it unlawful, a court will have to determine that. Nor does the Gates arrest prove that systems of accountability and review are absent or even wholly ineffectual without reference to a pattern of similar failures within the Cambridge PD. That too is a matter for further investigation but it cannot be assumed.

As for the "blue brotherhood mentality" I am absolutely not saying that occupational solidarity is not very real. But it should not be overstated. There is often as much conflict as there is solidarity in a police department. Struggles for power within the department and outside the department are real. Factions develop and enemies and alliances are made. The point is to not treat police culture or social structures as homogenous and all powerful.

Ultimately, if the public does not want police officers to arrest for public disorder crimes (e.g. unreasonable noise, drunk in public, offensive words likey to start a fight, threats, etc.) or crimes against the justice system (e.g. obstructing, delaying or resisiting an officer in the course of a lawful investigation) then they need to pressure their state legislatures to remove those laws from the books. Or if they would like better trianing for their officers then the public will have to work with state and local governemnts on productive ways of improving acacdemy and in-service training. Money and staffing are short these days in police departments (my department had to furlough half of our training days for the year to avoid lay-offs) and so problems will likely get worse, not better in the near term.

Posted by: Brian Lande | Jul 28, 2009 5:03:21 AM

I don't think Brian's point that "discretion" operates within limits of a larger framework mitigates critiques of abuse of said discretion - not entirely, anyway. I also think there's pretty strong evidence that the "blue brotherhood" mentality extends beyond platitudes issued at police funerals.

All the sociologists' jargon in the world doesn't change the fact that, to use the Gates case as an example, Officer Crowley had the ability and means to perpetrate an unlawful arrest and used his discretion to do so. Charges were dismissed the moment they got to a prosecutor because he'd made the arrest acting outside his legal authority, but he faces no official discipline for his actions and has been lauded by many in law enforcement including his own, local police union. Notice, too, that none of the other officers there intervened to stop him even though we now know (because the prosecutors won't pursue the case) that there was no legal basis for Gates' detention. In that light, IMO Jonathon's skepticism about the efficacy of legal review over police is well-founded.

Posted by: Gritsforbreakfast | Jul 27, 2009 3:49:21 PM

Obama was right in his statement. But no one will think it's right coming from Obama.

Posted by: BMI Obesity | Jul 26, 2009 9:30:57 PM

Regarding checks and balances on discretion, you are correct that the judicial system (the coursts, DAs filings and rejections, etc) are not initiated with every arrest. However, don't forget that police officers are supervised. Every arrest is approved first via radio with a sergeant. Then a probable cause statement is written and reviewed within several hours of the arrest. The arrest report is reviewed by a sergeant who has a vested interest in the probable cause for the arrest being good as if it is not he is also on the line civilly. The arrest is then vetted by lieutenants and "Dicks" from the investigations bureau. Believe me, you. If you make a bad arrest you and the rest of the department hears about it very fast. It is very embarrassing to be the subject of roll call training and to be pulled into a closed office door. Yet this happens. I won't say it is frequent because most of the officers I work with do not make faulty arrests.

Further, all the research indicates that out of the thousands of contacts that officers have with citizens every year, a minute percentage ends in arrests. All the evidence suggests that "Law Enforcements" job is NOT arresting people or enforcing law. Such labels, as favored as they are by the people I work with and engrained in the mythology, do not describe what police officers do on a day to day basis. Large scale observational studies and my own experience indicate that most officers spend their time intervening in situations on the behalf of someone else who has called them. Their interventions typically take the form of being a referee (for example, making sure turn-taking in disputes occurs) and ultimately negotiating situational settlements, One researcher termed what police officers are doing is "managing volatile work groups."

I am also wary of the way "discretion" is being used. Discretion is not an analytical concept developed by sociologists to explain sociological or psychological phenomena. The concept of “discretion,” an almost “god-term” (Burke) in the grammar of studies of law and the police, is deeply problematic. On the one hand it is a political concept (Davis 1969), not a sociological or analytical concept (see Hawkins 1992), but one aimed at reforming the criminal justice system. Moreover, the mechanical concern with “decision making” has made not only Davis but many studies of “discretion” vulnerable to the same critiques that have been levied against rational choice theory in economics, structuralism in anthropology/linguistics, and rule following in philosophy (see Bourdieu 1990; Garfinkel 1967; Taylor 1993; Dreyfus and Rabinow 1993; for a critique of rule following from the point of view of criminology see Weider 1974 and Waddington).

From a sociological standpoint, the deepest flaw in the importation of “discretion” into the study the police is its fetishism of the individual and free choice (Campbell 1999). “Discretion,” opposes voluntarism and radical subjectivism, on the one hand, to the mechanical determinism of law as a kind of machine or apparatus which dictates the movements of men. In Davis’s view, discretion is the voluntary choice of jurists limited constrained by legal limits. To use Dworkin’s (1977) metaphor, discretion is the “hole in the donut” where individuals can act willy-nilly. “There is no room within this paradigm to consider how far individual `free choice' may be already, collective, ordered, routinised and structured by phenomena other than the law itself” (Campbell 1999: 80). Even when behavior is “extra –legal” this does not mean the conduct of jurists, police officers, or deputies are unfettered. Rather, the very fact of an individual determining whether or not a situation is “legal” or not or even the classifying conduct as “discretionary” depends on frames of reference that are anything but legal (Manning and Hawkins 1990).

A primary concern of recent research I have conducted on arrest making behavior is not the “discretion” of deputies, it is the fact that who gets an arrest is both structured by forces that transcend the individual and which the individual finds himself pushed and pulled by and deputies structure their interactions and behaviors according to the sense-making they apply to their world. The concepts and strategies deputies deploy however are themselves inherited and conditioned by the multitude of structures (linguistic, policy, legal, corporeal, and perceptual) they encounter in their tenure in law enforcement.

So frankly, when people discuss "police discretion to arrest" and worry about how it is reviewed, sociologically speaking, I have no idea what is being talked about since we are not talking.

Posted by: Brian Lande | Jul 26, 2009 6:23:41 PM

Inviting the officer and Gates to the White House for a "teaching moment" is obviously a good political move. Obama needs to "own" the issue-- luckily for him the police union probably wants the whole thing to blow over, because this could be terrible PR, even bearing on Sotomayor, if the officer were to refuse the invitation on the grounds that Obama "could learn a thing or two" about race.

But I'm sure Gates knows to defer to the prez on this one, and Obama's advisers are smart people--- this is a golden opportunity for Obama to be the Unite-r. Gates will suck it up to provide Obama an opportunity to chasten "both" of them--- but really this will be a chastening of the officer.

Posted by: AndyK | Jul 26, 2009 1:08:41 PM

Brian's research is fantastic and I place great weight on his assessment of contemporary police culture. We may disagree however about the efficacy of legal review over police. There has been a massive legalization of police since the 1950s, and it continues to make a difference in separating a well policed state from a "police state." But it remains unclear how often police discretion to arrest is in fact reviewed (shooting is of course different and more intensely monitored). Any of us, even distinguished professors who are friends with the President of the United States, can be arrested for disorderly conduct and taken to jail. Even if charges are dropped it is unlikely that the police officer's probable cause for that arrest will ever be tested in a court (or as here through extended public discussion). Going to jail is never inconsequential (especially for a 50+ year old guy who had just gotten off most of a day of air travel from Asia, was certainly dehydrated and for all Sgt. Crowley knew, might have been diabetic or in need of medication packed away in his suitcase). Furthermore, if police funeral and scandals do not characterize police culture (and I accept your account of that completely), neither are they insignificant to the way police power is exercised in the political realm. I'm eager to read or hear more of your own analysis of the Gates-Crowley encounter.

Posted by: Jonathan Simon | Jul 26, 2009 12:31:45 AM

I am a Ph.D candidate at Berkeley,studying under Loic Wacquant. I am also a deputy sheriff. I have worked for two sheriff's departments, one in the poorest and most rural county in the state and the other a more affluent central coast county. In my time as a sociologist/deputy, I have made detailed and repeated observations of law enforcement. I have studied their work day worlds, the institutional environment they operate in, and the modes of representation in which police come to know themselves and are known to the public through any number of media outlets.

I also blew the whistle on a racial profiling scandal in a former department and am intimately familiar with the ugly face of police racism and racial profiling.

That said, I strongly object, on empirical grounds, to the claim that the police are a "powerful armed society within a society exercises huge and mostly unreviewable power over all Americans as individuals." First, legally, police power is highly circumscribed by law and departmental policies. Second, as anyone who has worked patrol knows, police have very little power or control over the situations they are in or the people they encounter. Police cannot stop and seize whomever they wish, whenever they wish. They cannot use force the vast majority of the time, and when they do, they are subject to an enormous amount of scrutiny. Moreover, thirty five years of research by sociologists have show that despite the representation made to the public, police very rarely use ANY kind of force in their encounters with citizens. Third, you represent the police as homogenous group, when in fact they are highly differentiated on the basis of race, ethnicity, national origin, class, and sexual orientation. Moreover, divisions within the police hierarchy, from the divide between patrol and sergeants to that between the administration, each with their own interests and forms of power, make the police world a complicated one. The deputies and officers I work with, are for the most part, highly sensitive to what they can and cannot do. They perceive the danger of complaints and litigation around every-corner to the extent that I have argued that the police academy teaches mostly about civil dangers rather than dangers to flesh and blood!

I am an enormous fan of your work but I feel that analytical conventions are being dropped in favor of rhetorical tropes that do not in fact correspond to observational and survey data on current law enforcement practices. Police practice and police practice frequently do not correspond. In part it is the fact that representations are meant to be interventions rather than accurate descriptions that had led such theorists as Pierre Bourdieu to dwell so much on the nature of utterances and their practical context and the need of the ethnologist to be wary in taking the natives representation of the world at face value. The "blue brotherhood" does not exist in reality and the discursive settings in which "loyalty" and "brotherhood" are deployed need to be carefully separated from the settings in which police work is actually done. The language of police funerals and police scandals are not the language of the police locker room, the patrol car, or a domestic violence scene.

Posted by: Brian Lande | Jul 25, 2009 11:25:20 PM

Perhaps, but the problem with the President specific comments can be illustrated here:

President: "I don't know all the facts..."

President: "I don't know, not having been there and not seeing all the facts..."

President: Calling the actions of one of the parties in this incident stupid.

For all these reasons it would take an Obama to make this a truly teachable moment for America.

I'm not sure what this means. Does he have some magical powers?

Posted by: anon | Jul 25, 2009 5:12:06 PM

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