President Obama’s Task Force on 21st Century Policing has released a long list of reforms to American policing, some of which, including independent police prosecutions and dramatically scaling back the role of police in schools, are true advancements. However, there are also major pitfalls in the report’s reliance on procedural rather than substantive justice.
Liberal police reforms of the 1960s, including the Katzenback Commission on Law Enforcement and the Administration of Justice and Johnson’s Safe Streets Act, were intended to achieve similar ends of improving police community relations and reducing police brutality through police professionalization and a host of procedural reforms. The result of this process, however, was the massive expansion of policing in the form of SWAT teams, the War on Drugs and, ultimately, mass incarceration.
Princeton political scientist Naomi Murakawa, in her book The First Civil Right: How Liberals Built Prison America, details how the liberal assessment of the problems of race failed to take seriously the role of racial domination in the structuring of the criminal-justice system. Instead, they focused on the need to create a criminal-justice system that was more professional and less arbitrary in its meting out of punishment against people of color. Embedded in this approach was the misconception that the negative attitudes of blacks about the police were based on a combination of poorly trained and biased officers on the one hand and exaggerated feelings of mistrust by African-Americans, derived from their social and political isolation, on the other.
Rather than directly addressing the functional role of the police, and the ways in which the laws they were tasked to enforce were based on a history of racial inequality, liberal reforms worked to strengthen that legal system by increasing resources for its enforcement and imbuing it with a mission of race-blind equality of application. This was based on the fallacy that the law always protects everyone equally. But, in fact, the law was neither intended to nor in practice functions in that way. The poor in particular are at a disadvantage, in that the laws more harshly target the transgressions that they are more likely to commit. As Anatole French pointed out in 1894, “In its majestic equality, the law forbids rich and poor alike to sleep under bridges, beg in the streets and steal loaves of bread.”
Today’s Task Force falls into this same trap. One of the central tenets of the Task Force’s report is reliance on procedural reforms. Procedural justice deals with the ways in which the law is enforced, rather than substantive justness, which involves the actual outcomes of the functioning of the system. Such procedural reforms focus on training officers to be more judicious and race-neutral in their use of force and how they interact with the public. The report encourages officers to work harder to explain to people why they are being stopped, questioned or arrested. Departments are advised to create consistent use of force policies and mechanisms for civilian oversight and transparency. The report implies that more training, diversity and communication will lead to enhanced police community relations, more effective crime control and greater police legitimacy.