Notes on a Theory…

Thoughts on politics, law, & social science

NYPD Will Not Reform Itself

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Motives, Procedures and Hope, or How Not to Bring About Change

Policing practices, mass incarceration, and the general punitiveness of policy directed towards those at the bottom are all things I have been trying to grapple with for a long time. On the one hand, the levels of punitiveness are absurd and indefensible as ways to ensure public safety or achieve anything I’d consider a legitimate policy goal. This would be true even if they were applied evenly. On the other hand, punitiveness is always dished out in a highly stratified manner. These two things are connected–unless justified on the basis of supposed inherent Black criminality and dangerousness, these policies wouldn’t have been possible.  They require Othering in order to be legitimated. And if they were applied with anything like an even hand, significant public push back from more politically powerful communities would be swift.

New York City is certainly not the only place where policing has focused on low-level petty crimes and ‘disorder,’ justified by the claim that addressing these minor issues would reduce more serious threats to the public. But it has been a prime mover in it. Broken Windows policing was implemented by Bill Bratton during his first tenure as NYPD commissioner, and when he was appointed again by Mayor Bill DeBlasio it was clear to all observers that the city would continue to be committed to this style of policing. Bratton’s appointment was an early disappointment for many DeBlasio supporters, especially since raising the issue of stop and frisk had been a key to his campaign.

But now many critics of NYPD find themselves taking Bratton’s side, as NYPD officers have engaged in childish symbolic acts in protest of DeBlasio’s rather mild comments in response to the Garner killing and the grand jury’s failure to indict the killers. I’m in agreement here, less because I’m concerned about the gestures themselves and more for the reasons for them–the claim that the police should be able to use deadly force against an unarmed black man who was not committing any crime without anyone saying anything against them. But the other response from NYPD officers, at the behest of their union, has been a slowdown. That is, officers have all but ceased making unnecessary arrests and issuing citations for petty crimes. In other words, they are extending the same sort of policing that well to do white people have long enjoyed to everyone else. At least for now. (In fact, it already appears as though threats from the top have led to a officers to begin engaging in these behaviors again–it may be that the slowdown is already over.)

What has interested me most in watching the reaction to the NYPD slowdown, especially among those who have been critical of the police and criminal justice systems in the wake of the killings of a number of Black people, most prominently Michael Brown and Eric Garner. I want to discuss what this reaction reveals about the limits of liberal politics. The reason for this is simple. I believe the slowdown is a political opportunity. It creates an openly to allow us to more effectively demand a permanent end to these policies in New York City, and to move to do the same for similar policies around the country.  It should be seized, but complaints that the NYPD is engaging in the slowdown distract us from that all important task. Given the difficulty of the task and the powerful forces arrayed in favor of making as few changes to policing and related issues as possible, we cannot afford that distraction.

The Politics of No Politics 

One reaction has been to dismiss what the police and the union have said and done in the wake of the Garner ruling because, it is claimed, that it is not genuine but rather simply a smokescreen for a labor negotiation. The NYC Patrolmen’s Benevolent Association (PBA) is currently negotiating its contract with the city. Some have suggested that the police aren’t upset with DeBlasio at all, but are putting the squeeze on him to extract more concessions. This move–claiming that your opponent doesn’t really disagree with you, but have only financial, interested motives–is fairly common.

I think this gets things wrong at two levels. First, it’s wrong, or at least disastrously incomplete. It may be that the leadership of the PBA has an interested in inflaming tensions for contract purposes, and that officers are pressing more than they would otherwise. But it’s not as though police, in New York or in general, are generally open to criticism over cases like the killing of Garner of Michael Brown. It’s not as though there aren’t plenty of people who aren’t cops who are outraged at DeBlasio, or who were outraged at Obama for his fairly bland comment on Trayvon Martin. Remember when some New York teachers displayed their ‘solidarity’ with NYPD over the killing of Garner? What about all the politicians who have attacked protestors and the victims? To imagine that NYPD has no political reasons for its position you have to ignore practically all the ongoing commentary on this issue.

Second, and more importantly, it’s irrelevant. Positions are either defensible or they are not, they are either convincing or they are not. The move to dismiss an argument because of the imagined motives of the speaker is precisely how most dissent is dismissed. But someone’s motives tell you nothing about whether their claims are persuasive. That is, the claim that cops should be able to kill unarmed people without consequence is wrong, and the claim that criticizing them for this is wrong.

On the other hand, the claim that the cops ought not to engage in unnecessary arrests, that they ought not harass black people, in particular, and communities of color, more generally, over petty crimes, is correct. It’s correct because these things shouldn’t be done to anyone, and because it’s not law when it’s applied only to some people (especially when those some people are the most marginalized). The reasons for it, whether narrowly self-interested or broadly political, don’t change that.

I’ve lost count of the number of conversations I’ve had where someone complained about the NYPD for the slowdown, I responded that ending (even temporarily) this form of policing, is a good thing and was then accused of not realizing that the NYPD had bad motives for doing this. Of course they do! I don’t dispute that. I just don’t care, at least when I’m judging the action itself, and how we should respond.

The liberal commonplace of avoiding substance means that we tend to unite around who we oppose or support rather than what we want to do or what sort of world do we want to live in. It leads us to fail to adequately diagnose problems, let along figure out how to solve them. Many solutions offered barely chip at the edges. Some make things worse. (Here’s a handy guide on judging reforms from Prison Culture). And even those that fully address the issue of policing may leave out other connected issues, especially economic ones. (See the three-part economic program by Jesse Myerson and Mychal Denzel Smith.)  By denying politics to our opponents we contribute to denying effective politics to ourselves.

Proceduralism Uber Alles

Another place where things go wrong is with the claim that the problem is procedural.  The New York Times called out the NYPD for the reasons why it’s officers were upset in strong fashion, dismissing their grievances as without foundation.

1. He campaigned on ending the unconstitutional use of “stop-and-frisk” tactics, which victimized hundreds of thousands of innocent young black and Latino men.

2. He called for creating an inspector general for the department and ending racial profiling.

3. After Eric Garner, an unarmed black man, was killed by a swarm of cops on Staten Island, he convened a meeting with the police commissioner, William Bratton, and the Rev. Al Sharpton, giving Mr. Sharpton greater prominence than police defenders thought he should have had because Mr. Sharpton is a firebrand with an unsavory past.

4. He said after the Garner killing that he had told his biracial son, Dante, to “take special care” in encounters with the police.

5. He generally condoned the peaceful protests for police reform — while condemning those who incited or committed violence — and cited a tagline of the movement: “Black lives matter.”

The list of grievances adds up to very little, unless you look at it through the magnifying lens of resentment fomented by union bosses and right-wing commentators.

So what did the Times suggest was the solution?

1. Don’t violate the Constitution.

2. Don’t kill unarmed people.

So far so good. But then:

To that we can add:

3. Do your jobs. The police are sworn public servants, and refusing to work violates their oath to serve and protect. Mr. Bratton should hold his commanders and supervisors responsible, and turn this insubordination around.

The problem with this is that the jobs the Times demanded they do is the hyper-aggressive policing of minor infractions that led to Garner’s death. The job they weren’t doing, according to the New York Post, which the Times cited, was making arrests other than “when they have to.” Demanding officers engaged in unnecessary arrests and (selectively) enforce minor criminal laws is the opposite of what’s needed.The problem is that for communities of color, the police are neither serving nor protecting–they are laying siege.

The Times has been largely supportive of Broken Windows. But others who are not agreed. This might be the goal but this is not the way to do it. It violates civilian control. It is lawless. It is letting officers determine policy. It is abuse of discretion.

This misunderstands the situation.  To listen to the Times, you might think that NYPD normally is out enforcing minor crimes against all New Yorkers. But they aren’t. If New York City enacted a law and the law made clear it applied only to Black people, that law would be struck down. It’s unlikely it would be passed. But that isn’t what happened. Instead, laws were passed, orders were given, with a wink and a nod, where all knew the they would be applied unevenly.This approach to policing requires officers to use their discretion in inequitable ways.  In essence, the NYPD extended the same discretion it normally applied to white people to the rest of the residents of New York City.

Aurin Squire in the New Republic gets to the root of it.

To many of us from these communities, the past two weeks have amounted to a vacation from fear, surveillance and punishment. Maybe this is what it feels like to not be prejudged and seen as suspicious law breakers. Maybe this is a small taste of what it feels like to be white.

Let’s be clear. Selective, racially biased policing presents a problem of due process. Law applied unequally isn’t law at all. If it was appropriate to fail to enforce these rules against some, why is it not appropriate to do so for all?

Procedures are supposed to serve a purpose. But as Naomi Murakawa argues, liberals have often called for procedural reforms without connecting to them to larger goals. Often these reforms were developed in response to concerns about racial inequality, but over time they became unmoored from this issue, and were deployed for conservative ends, namely mass incarceration. Currently, “demands for reform are loud but modest in scope and normatively untethered.” If the point is to address things like the killing of unarmed Black men, demanding police enforce polices that will lead to more such killings is a mistake.

Hope is not a Strategy

In a good piece, Jonathan Blanks highlights how the slowdown will directly benefit many poor New Yorkers financially, by disrupting the collection of back-door taxes.

Still, it’s a good reminder that too often, cities rely on parking and traffic tickets for their revenue. According to The Washington Post, some communities in Missouri draw as much as 30 percent of their revenue from these sources. These fines fall disproportionately on poor, non-white people. ​ This can breed antagonism and antipathy in communities of color that will further strain police-community relations.​

Intended or not, the work stoppage will allow money to stay in the pockets of many New Yorkers who will use it better than the city could. This is particularly true for the poor and others who survive paycheck to paycheck in one of the world’s most expensive cities. Petty fines can devastate a tight budget when every cent counts, and municipalities should stop depending on — and thus incentivizing the collection of — fines to augment their budgets.

The shift from seeing government as a means to ensure the basic needs of the poor to seeing it as a way to punish and extract from the poor is important. But let’s talk about this ending, because it articulates a way of thinking about how change happens that is all too common: “Let’s hope police departments learn from this NYPD example.”

The NYPD is (at least theoretically) accountable to the police commissioner, the mayor, the city council, the state legislature, the state judiciary, the federal government and the federal judiciary, and the public. All of those actors have either actively demanded broken windows policing or passively facilitated it. Why ask the NYPD to learn but not all those actors?

The idea that facts will cause the NYPD to reform itself is pure fantasy. Hyper-aggressive policing and mass incarceration aren’t caused solely by cops. It is a bipartisan, elite, broad-scale project. This governing mentality is seen in poverty policy, immigration, national security, and education. It is also a means for many wealthy actors to redirect public resources into their own pockets, creating all sorts of opportunities for outsourcing and contracting. These actors in turn become major funders of politicians campaigns and engage in significant lobbying, ensuring their concerns remain front and center for our representatives.

This rhetorical stance has been common. It implies that we live in an otherwise relatively equal and non-punitive society, but that the police, or maybe just certain departments, are outliers.  But it also obscures the means by which these problems (regardless of how broadly we understand them) can be addressed.

Democracy is not a spectator sport. Nor it is a machine which automatically translates facts (or for that matter, ‘political preferences’) into policy. It requires an active, mobilized citizenry to be anything more than a facade for plutocracy. And the strange part is that increasingly, we have one. The Black Lives Matter Movement is pushing back. The answer, as always, is a mass movement, not elites who have done wrong coming to their senses. Those who are allied of that movement need to focus more on the ultimate goal.


 

This brief interruption in Broken Windows policing in New York opened a window of opportunity. It showed that another way was possible. It provided leverage against all of the actors that authorize and support punitive, unequal policing. Even if officers are returning to “normal,” this moment still can be a resource for demanding change. There is no reason for police to treat whole communities as dangerous, as under suspicion. There is no reason for applying an entirely different set of rules on the basis of race. Money spent on these things would be better spent on meeting the needs of the residents of New York City–government should focus on meeting basic needs more and worrying about punishing less.

 

If you are in New York City, you can join those who are trying to use the slowdown to push for real reform.

 

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Written by David Kaib

January 15, 2015 at 10:28 pm

One Response

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  1. […] all confirms what I said in my last post: the NYPD will not reform itself. Elite politicians will not do our work for us. They may change what they say, or their tone. They […]


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