Reflecting on this age-old US problem Allen Steinberg asks if effective police work and constitutional democracy are compatible?

Leading US law enforcement officials have been arguing since last summer that America is confronting a new wave of violent crime, caused by what they call the “Ferguson effect”. Police officers, they insist, are reluctant to do their jobs for fear that civilians will record their actions and use the videos to challenge the police version of events.

FBI director James Comey advanced this theory through a widely noted speech in October. A full-fledged controversy has now developed over whether greater scrutiny of law enforcement since the 2014 shooting of an unarmed black teenager in Ferguson, Missouri, has made police officers wary of enforcing the law.

There is, however, a major factual issue with this argument: There is no reliable data to prove crime is rising.

Protests in Ferguson
Protests in Ferguson

Murders did indeed increase in 2015 in several mid-size American cities, and one big one, Chicago. Overall, the murder rate for the country’s largest cities was up 11% in 2015, according to preliminary data from the Brennan Center for Justice at New York University Law School.

But this is well within the range of year-to-year fluctuations during the decades-long era of declining US crime rates. In addition, the data does not show that other violent crime, such as assault, has increased.

So, if there isn’t a new crime wave, what do we make of the Ferguson effect that supposedly caused it? First, not everyone agrees that police officers’ increasing caution is behind the crime-rate fluctuations. In St. Louis, for example, where murder has been on the rise, the increase began before 18-year-old Michael Brown was killed in Ferguson. Milwaukee police chief Edward Flynn views his city’s rise in violent crime as more likely attributable to cuts in health services funding and a new state law allowing people to carry concealed weapons.

Michael Brown
Michael Brown

The reasons for the rise, or fall, of crime rates have always been notoriously difficult to pin down. Yet, as was clear during the Republican presidential candidate debate, the idea of a Ferguson effect persists in the popular imagination. This could be because it serves another purpose: to resist change. In fact, similar arguments have been made repeatedly in US history.

Since the controversy over police behaviour emerged in the wake of Brown’s death, and increased with a series of other police killings of unarmed citizens across the country, there has been a predictable backlash in law-enforcement circles against the criticism.

The idea of the Ferguson effect was popularised last May in a Wall Street Journal op-ed article by the conservative scholar Heather MacDonald of the Manhattan Institute. Her article, which provides the theoretical underpinning of the police backlash, contended that unless the police are free from surveillance they will, in effect, be unable to do their jobs. Efforts by citizens to ensure that police officers abide by the law and the US Constitution, the argument contends, put all Americans in danger and allow the real criminals to run rampant.

The conclusion, though never stated explicitly, is that to fight crime effectively and keep everyone safe, the police must sometimes ignore the law and the Constitution. This also serves to shift the focus from any police use of excessive force to the public danger of law enforcement’s use of insufficient force.

The argument goes right to the heart of the problem of policing in a democracy: Is it possible to conduct effective police work and respect the boundaries placed on police behavior in a constitutional democracy?

There is no question that the limits the law and the US Constitution place on police authority and discretion make it harder for them to do their crime-fighting job. That is why, throughout US history, there has been tension between police forces (both public and private) and the civilians who wield control over them.

Most law-enforcement agencies understand that they must establish public legitimacy to be successful. Which might be one reason why those who are using excessive force prefer to work away from the glare of public attention — and so be able to continue maintaining control of the narrative about police conduct.

That is one reason why the real Ferguson effect — the use of smartphone videos and social media to increase the glare of public attention — upsets many in law-enforcement circles. Yet, it also can open a frank and potentially positive discussion of the fundamental problem of policing in a democracy: How to do effective police work and keep within the bounds of the law and the Constitution.

US cities established the first modern police forces with great reluctance under terribly trying circumstances in the mid-19th century. Criminal justice was traditionally the responsibility of private citizens. Many Americans feared a civil police in much the same way they feared standing armies — as potential sources of state tyranny.

Philadelphia’s police force, for example, was organised only after a long string of deadly riots during the late 1840s. To help prevent more riots, officers were instructed to arrest virtually anyone they considered suspicious. New York’s new police received similar instructions — and arrested one of every 109 New Yorkers in 1851.

Despite the desperate need for order, many civilians balked. Philadelphia’s leading daily newspaper raised the spectre of police tyranny right after the new police department was established — insisting that arrests for “suspicion” established “a doctrine of the most pernicious tendency”.

Widespread surveillance and arrest were not the only actions expected of the new police. Their supporters understood that violence was an essential component of police authority. Philadelphia’s first citywide police chief sought to recruit officers prepared to “slug it out” with the disorderly.

Together, these two mandates — keeping a constant eye on the “suspicious” and employing violence to subdue them — became key components of the developing relationship between police and the citizenry.

Patrolling by basically walking beats alone during the late 19th century, a policeman’s authority rested in large part upon his ability to physically control the street corners. By the early 20th century, the muckraking journalist Lincoln Steffens described how the legendary New York cop Alexander “Clubber” Williams demonstrated what an art form the judicious use of the billy club had become.

Are effective police work and constitutional democracy compatible in the US?

Somewhat like now, this harsh police behaviour inspired outrage. Also like now, the police responded defensively to the scrutiny and criticism.

When one well-known officer was roundly criticised for beating protesters during a demonstration, his response to the charge that he had violated their right to free speech was to declare, “to hell with the Constitution”

Then, as now, the police worked closely with the district attorney. In 1903, a senior Manhattan assistant district attorney, whose office had been encouraging aggressive police behaviour, insisted that the law officers were not “overzealous” in making arrests and rarely violated due process. The real problem, he argued, was police reluctance to “do their duty” because of political interference.

Despite police resistance to the criticism, it often yielded significant changes. Some, like the big drop in arrests for minor offences after William Gaynor became New York mayor in 1910, were temporary.

Others, like the first halting efforts at what would become “community policing” or forging constructive neighbourhood ties through groups like the Police Athletic League, were more long lasting.

As was the recognition that some problems were better suited to interventions by practitioners of the new profession of social work.

After the Progressive reform era waned in the 1920s, police authority again expanded throughout the nation — eventually provoking another round of questions about its constitutionality, and another opportunity for change. The results were the historic US Supreme Court decisions limiting police power during the 1950s and 1960s.

But police authority again expanded — first, in response to the civic unrest of the late 1960s and 1970s — then driven by the war on drugs and finally as a result of the fear of terrorism following 9/11.

Are effective police work and constitutional democracy compatible in the US?

Now, thanks to the real Ferguson effect — the scrutiny of the police undertaken by ordinary citizens — another opportunity for change has emerged. Once more, many among the police and their supporters are resisting it.

But rather than their dubious claims about a crime wave, this moment is crucial because Americans can again make progress in the recurring battle between police power and the Constitution. Americans can forge new strategies for effective, community-engaging, law-abiding approaches to policing and crime reduction.


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