This article is one in a series of arguments on policing in our summer issue.
We are in the middle of an ongoing scandal regarding policing. Police, the putative guardians of law and order, are themselves policed all too inadequately. They have too much lawful authority to encroach upon civilians. Legislatures and courts empower police to arrest and jail people even for infractions that carry no jail time. They likewise empower police to use lethal force in situations that would allow for other, safer alternatives.
Police in the United States cause injury and death more than they do in other wealthy nations. Year in and year out, at least a thousand people are killed by police. In some instances, of course, lethal force is justified, as when police kill to defend themselves or others subject to imminent attack. It is clear, however, that when police kill without good reason, they rarely face accountability. Instead, wayward officers are insulated from their malfeasance—sometimes criminal malfeasance—by legal doctrines (excessively broad qualified immunity), bureaucratic imperatives (the interdependence of police and prosecutors), and malevolent collective power (the blue wall of silence or, worse, police perjury, known as “testilying”).
Because of Black Lives Matter, these problems have become a high-profile crisis, resulting in a marked change in attitude on the part of politicians, journalists, police bureaucrats, cops, and ordinary civilians. There is a new and salutary awareness that a long list of reforms is long past due.
Activists will have to be savvy, vigilant, focused, pragmatic, and militant to prevail over the formidable reactionary powers working at the behest of police authorities and their allies. To win, they’ll need to avoid reckless talk. There is a compelling need to reform policing. Talk, however, of abolishing the police is mistaken and ultimately self-defeating.
Many who speak of abolishing the police don’t really mean what they say. When pressed, they retreat, saying that, actually, they merely want to abolish policing “as we currently know it.” Every serious reformer wants to do that. I certainly want to abolish policing that includes humiliation, intimidation, and brutality as a matter of habit. Just as certainly, though, I want some agency to be cloaked with lawful authority to use force in support of legitimate social norms. I want some agency that can righteously protect people against marauders and apprehend criminal predators.
The need for such an agency is especially acute among those dependent upon public as opposed to private protective forces—in other words, those who cannot afford to buy their own security. Some abolitionists who insist that they really do want to eliminate police altogether regrettably deny or minimize the very real problem posed by violent criminality, especially in vulnerable, impoverished, disorderly neighborhoods, and the very real contribution that decent policing can make to ameliorating that problem.
Any useful thinking about the administration of criminal law in America must contend with the awful fact, explored by Elliott Currie in A Peculiar Indifference: The Neglected Toll of Violence on Black America, that “a young black man has fifteen times the chances of dying from violence as his white counterpart.” Currie writes that much of the country has been “understandably outraged by the continuing plague of police killings of black Americans.” But he rightly complains that “there has been far less outrage over the ongoing emergency of everyday interpersonal violence in black communities,” a scourge that policing must confront more effectively.
I do not believe that policing is our only salvation. I do not believe that we can police our way to public safety. I do not believe that we can attain durable, just, enjoyable public security without a massive effort to improve the provision of employment, wealth, housing, and medical care. I agree that it makes sense to shift functions away from the police and to invest more in nurturing people productively. Healthy, secure, educated, gainfully employed people tend to abjure criminally antisocial conduct. But even after a massive redistribution of resources—even “after the revolution”—there will remain a need for an agency with the authority to use force to investigate, restrain, and detain those who insist upon criminally victimizing their neighbors.
The attack upon the U.S. Capitol on January 6 highlighted both the scandal of policing as it is often implemented and the imperative need for policing. Had the racial or ideological shoe been on the other foot—had the mob assaulting Congress been composed primarily of people of color or been marching under the banner of Black Lives Matter—there would have been a bloodbath. This invidious discrimination must be confronted. What transpired at the Capitol also underlines, however, the necessity of policing as a public good. On January 6, the United States needed an agency authorized to use force to protect its representatives and the seat of government—just as ordinary people, day by day, need an agency authorized to use force to protect their lives and property. They need—we all need—good policing.
Randall Kennedy is a professor at Harvard Law School and the author of Race, Crime, and the Law.