Talking About Police Accountability
When a Minneapolis jury found former police officer Derek Chauvin guilty of murdering George Floyd, there was a palpable sense of relief. A police officer who murdered a Black citizen would be held to account. But the verdict offered cold comfort: American policing was in disarray, demoralized and deemed illegitimate by a growing group of detractors, the nation was in the grip of a pandemic, and its major cities had seen spikes in homicides that invited comparison to the 1990’s, when violence was at crisis levels. Hope is on the horizon for the pandemic, but all these things are still the case, and people want reassurances that we can hold police properly accountable.
By my view, police accountability requires answering an underlying question: police should be held accountable for what, exactly? Policing as an institution seems to have evolved without theoretical guidance or foundational principles. Philosophers have been talking about the basic features of a just state for generations in some traditions and millennia in others, but the only canonic Western philosopher I am aware of to have squarely taken on the question of where police fit into the state was Hegel (his answer: practically everywhere, as a far-reaching regulatory body). Even Robert Nozick, the libertarian who argues the demarcation between anarchy and the state is a dominant protective association that safeguards the rights of all citizens, doesn’t acknowledge this work would be undertaken by officials called police. Accountability could use a compass. We can start by thinking of the police as assuming three basic roles.
Police protect and rescue third parties from harm. Anybody can use force to rescue a person in danger; this is not what separates the police from people who intervene when a child is being attacked by a stranger. The difference, by one view, is that others can decline to act if the risks are too great, but the formulation of a state creates a duty on the part of the government to do so, and the police are role actors who discharge it. With such a duty comes other obligations we can hold police accountable for: to use this force professionally and minimally, to sanctify the lives of all citizens under their dominion and care, including suspects, and to take risks beyond those we’d expect of regular citizens in protection and rescue situations.
Before we can hold police accountable, we need a clear understanding of just what it is that we want them to do.
Police bring people and evidence to the criminal court. The criminal court is a brain in a vat, and police are one of its principal sensory organs. This role is written into municipal charters, with the charter for Los Angeles making its police the officials who “…may pursue and arrest, within the limits of the City, any person fleeing from justice, and shall without delay bring all persons arrested by the Department before a judge of the proper court for trial or examination.” What we are grappling with after decades of the relentless enforcement of laws is that “may” seems to have been mistaken for “must.” In “Why Arrest?” Rachel Harmon makes the point that we should not assume an arrest is warranted because we have legal cause to make it, but because it fulfills a legitimate interest of the community. We should expect our police to arrest for lesser offenses as a problem-solving tool rather than as an end in itself.
Police broker and enforce the fair terms of social cooperation in public spaces. Order maintenance can be used as a means to oppress minority interests (especially along the lines of race), and to use the power of the law to enforce subjective social norms. But urban pluralism requires somebody to (preferably) broker and (if necessary) enforce the fair terms of social cooperation that keep our public spaces both accessible and democratic. In his revisionist account of order maintenance, David Thacher spells out a need for the police to step in and make judgments when people
…make use of the public realm—the sidewalks, parks, airwaves, beaches, plazas, and bus stops that the members of our dense and interdependent society share—in ways that other people using those spaces consider excessive and impolitic, crowding out (they say) their legitimate claims to use those spaces themselves. Order maintenance involves attempts to resolve these conflicts over the use of that shared environment; it is the police role in defining and regulating the fair use of public spaces. (p. 122)
Relying instead on informal means of resolving these disputes will devolve to intimidation, appeal to illiberal social norms, the exercise of social influence, or simply getting there first. We should expect police to impartially promote cooperation in public spaces in ways that don’t consistently privilege a particular conception of their best use.
If we accept these three things as the core roles of the police, there are four ideas that can help hold police accountable for their work. They center on the idea that one of the best ways to measure safety is to show how it maps onto a broad understanding of health, and that in doing so we have a few things to learn about protecting and promoting health from medicine.
Police are interventionists. In 2018, researchers looked at the years of future life lost to police killings in the United States. They determined in 2015 and 2016 police use of force claimed over 53,000 and 54,000 years of future life, respectively. The authors point out these are more years of life lost to policing than many things we consider serious public health problems. What this fails to account for is the year of future life that were preserved by these police interventions, and the years of life gained by the decreases in violence that policing helps foster. The lawful use of force requires it be in response to an imminent threat, leaving us to ponder the counterfactual of what would have become of victims had police not intervened. Insofar as police contributed to the reduction in homicides witnessed in the US from 1991-2014, the resulting increase in life expectancy for the nation’s Black males was equivalent to eliminating obesity. We should hold police accountable for using force as a justified intervention, and require that their work, from arrests for drunk driving to breaking up bar fights and addressing domestic violence, be an attempt to intervene on something that would be a worse outcome were it not for police protection and rescue.
Police should pursue true endpoints. Police leaders utilize familiar metrics: the number of illegal guns seized, the kilos of narcotics taken off the street, the number of arrests made, and the number of traffic tickets and other violations issued. As much as they are discrete measures, they can mask failures to deliver public safety and improve the condition of a community. These are the true endpoints of public safety: less violence, less injury, greater resilience, and access to public spaces that are fairly used for a plurality of ends with minimal conflict and dissension. Some of these measures are direct measures of health, and others hew closely to our understanding of how healthy lives are lived. None of them, however, are police productivity measures per se. We need to develop the analytical acuity to understand how police contribute to community-level reductions in the morbidities and mortalities that fall within the domain of their role. When we do, it will not only clarify the relationship between policing and public health, but it will both empower police to demonstrate their success as interventionists and deprive them of surrogate endpoints that can be used as false indicators of success.
We should hold police accountable for using force as a justified intervention, and require that their work [...] be an attempt to intervene on something that would be a worse outcome were it not for police protection and rescue.
Police should measure and reduce their iatrogenesis. When a doctor removes your burst appendix, she may save your life, but the operation could also leave you with an infection. Chemotherapy sends cancer into remission, but weakens patients and makes them lose their hair. The well-intended interventions of doctors can have negative consequences, which in medicine are called iatrogenic effects. If police accept the mantle of interventionists, and seek true endpoints such as a lower homicide rate, we should also care about what they did to get to those points, and if it had harmful collateral consequences. Sometimes it’s necessary to use force to stop an assault, and sometimes police take the life of an attacker to spare the life of his victim or to end an acute mortal danger. There are cases where imprisonment removes a truly dangerous person from the community, and where writing tickets makes a roadway safer. These are all legitimate acts of policing, but like chemotherapy, they have negative effects, and police, like doctors, can operate in error. Police can be held accountable for acknowledging these consequences and these errors, commit to measuring them, and make real efforts to reduce them.
Police should minimize the number needed to treat. In 2017, researchers and public officials implemented a plan to treat prisoners for opioid addiction in the Rhode Island corrections system. Fatal overdoses plunged 63% in the year after prisoners were released. Analyses concluded that every 11 prisoners treated for addiction, saved one life. This is the idea of “number needed to treat,” or how many interventions are necessary to achieve a goal in one patient. Considering policing interventions have consequences which can be harmful, disruptive or stressful in their own ways (an arrest can endanger employment, and imprisonment can break up a family), police leaders should not only seek to identify and reduce the iatrogenic effects of their interventions, but take seriously the idea that the police footprint should be as light as possible while achieving its intended effects.
A paradigm case might be the New York City Police Department’s use of stop question and frisk. It is a practice where officers use suspicion of criminal activity to forcibly detain people and pat them down for weapons. For example, in 2008, the NYPD used the tactic over 540,300 times. Of those:
· 90% were found to be completely innocent (i.e., did not need the treatment)
· 1.7% had any type of contraband
· 1.1% had a knife
· 0.15% had a firearm
If the ultimate goal was to recover illegal firearms (which is a surrogate endpoint for the true goal of fewer shootings), the police had stop and frisk (i.e., “treat”) 667 people to discover one with a gun. The remainder—even if we take the view that discovering any contraband was a successful treatment—were people unnecessarily detained and subjected to a pat-down. This ratio wasn’t only judged by a court to be unconstitutional for its disparate impact on Blacks and Hispanics, but it showed a lack of awareness of how the tactic thrust innocent people into stressful and invasive police encounters. The annual number of stops declined from 685,725 in 2011 to 13,459 in 2019, a 98% reduction, yet homicides and shootings remained on a downward trajectory until the onset of the pandemic. A gross overtreatment of New Yorkers had been going on for years.
[P]olice leaders should not only seek to identify and reduce the iatrogenic effects of their interventions, but take seriously the idea that the police footprint should be as light as possible while achieving its intended effects.
In sum, we can improve policing by properly orienting our mechanisms of accountability toward goals and means that truly benefit the communities they serve. One often overlooked point is that police departments in the US are part of the executive branch, their leaders report to mayors and city managers, and their budgets are set by city councils. Accountability could mean requiring a mayor to ask candidates for chief of police what their strategy will be for aligning the goals of policing with the city’s goals for public health, and expecting city councils to ask those chiefs how the lines in their budgets coalesce into a collaborative strategy to build healthier, more resilient, less violent communities. Public safety is an elusive concept when all we use are productivity metrics and the crime rate to measure it, and “community policing” is an underdetermined idea that can take many forms, but the true measures of public health are everywhere around us, the metrics transcend many racial and class boundaries, and we can hold police accountable for how they affect them.
It’s fair to ask how the ideas put forth here translate to a police profession where officers don’t compress a suspect’s neck for nearly nine minutes as he pleads for help and dies. It will empower us to ask just what an officer of the Minneapolis Police Department was hoping to achieve by strangling George Floyd to take him into custody for possessing a counterfeit bill. The court would be nominally interested in this act, but to what end? Were police protecting and rescuing anyone in a way that justified the means? Where they ensuring commerce and trust in the monetary system wasn’t derailed by fraud? Did anyone stop to think that the productivity metric of a felony arrest in this case was unmoored from the terrible consequences of making it, which would have been great even if the means weren’t strangulation and ultimately murder? Before we can hold police accountable, we need a clear understanding of just what it is that we want them to do.
Disclaimer: Any views or opinions expressed on The Public Ethics Blog are solely those of the post author(s) and not The Stockholm Centre for the Ethics of War and Peace, Stockholm University, the Wallenberg Foundation, or the staff of those organisations.