The Police Cannot Be a Law Unto Themselves

In 2020, during the weeks of protest and civil unrest that followed the murder of George Floyd at the hands of a Minneapolis police officer, I argued that the problem of police violence and misconduct was a problem of democracy. And this week, in the wake of yet another police killing caught on camera, I think it’s worth saying, again, that the institution of American policing lies outside of any meaningful democratic control.

You can think of accountability for public institutions in two ways: on the back end and on the front end.

Back-end accountability takes place, as the name would suggest, after the fact. It is aimed at making sure that the rules were followed. In the context of policing, this means civilian review boards, officer discipline and judicial review. Back-end accountability provides recourse for misconduct.

Front-end accountability, according to the legal scholars Maria Ponomarenko and Barry Friedman, who founded The Policing Project at N.Y.U., takes place when there are “rules in place before officials act, which are transparent, and formulated with public input.” With front-end accountability, the public has a direct say in the rules that govern an agency or institution. “Public participation can improve the quality of rules by ensuring that officials have all of the information they need to make sensible policy,” Ponomarenko and Friedman contend. “It also helps to make clear that government officials are, to the extent possible, responsive to the popular will.”

Back-end accountability is, you could say, legal accountability while front-end accountability is democratic accountability. The two are linked, and in American policing we see the collapse of the former and the almost total absence of the latter. “Police departments are too often insulated from legitimate citizen challenges,” Amy E. Lerman and Vesla M. Weaver write in “Arresting Citizenship: The Democratic Consequences of American Crime Control.” Citizens, they continue, “are denied effective mechanisms for ensuring that the police are held accountable.”

American police officers have extraordinary power to work their will as they see fit. Local rules vary but generally speaking they can stop and frisk on the “reasonable suspicion” that you are “armed and presently dangerous.” They can stop and conduct a warrantless search of your vehicle with only “probable cause” that someone in the car or truck or van is committing a crime. The police have no obligation to either protect or assist you, even in the face of a credible threat to your life, and they are virtually immune to legal consequences for their actions under the doctrine of “qualified immunity,” with so few exceptions — like the almost immediate arrest of the offending officers accused in the killing of Tyre Nichols in Memphis — that it essentially proves the rule.

What little accountability exists for American police is easily subverted. Internal-affairs departments are often more interested in exonerating colleagues than investigating misconduct, and police unions do everything they can to shield bad actors, attack critics and secure more due process for cops accused of abuse than their victims ever get.

On those occasions when voters try to bring police departments under greater public control — by seeking to elect reform-minded mayors or district attorneys — police officers will do everything to undermine the officials in question. In 2019, San Francisco’s police union spent hundreds of thousands of dollars on campaign ads attacking Chesa Boudin, a progressive critic of law enforcement who was running for district attorney, as the best choice of “criminals and gang members.” In 2020, likewise, police unions spent millions trying to defeat a reformist candidate for district attorney in Los Angeles. And in Albuquerque, police unions and their allies fought a yearslong battle to try to stymie a proposed civilian oversight board that would have greater oversight authority.

The absence of legal and, especially, democratic accountability is, or should be, an existential problem for any police reform agenda. Without a strategy to curb or break the cartel power of police departments — meaning their ability to undermine, neuter and subvert all attempts to regulate and control their actions and personnel — there is no practical way to achieve meaningful and lasting reform, if that is your goal. Indeed, anything resembling a root-and-branch transformation of American policing will only ever occur after the public is able to exercise real control over the institution itself.

Put a little differently, the only reforms that can take hold in the absence of direct democratic accountability — where the public itself can shape the rules that govern policing and police officers — are those that don’t actually alter the status quo of police culture and police institutions. There is a reason, after all, that most police departments issue body cameras to their officers without serious pushback; the footage is theirs to control, in the main, and withhold from the public, should they desire to do so.

With great power should come greater responsibility and accountability. The more authority you hold in your hands, the tighter the restraints should be on your wrists. To give power and authority without responsibility or accountability — to give an institution and its agents the right and the ability to do violence without restraint or consequence — is to cultivate the worst qualities imaginable, among them arrogance, sadism and contempt for the lives of others.

It is, in short, to cultivate the attitudes and beliefs and habits of mind that lead too many American police officers to beat and choke and shock and shoot at a moment’s notice, with no regard for either the citizens or the communities we’re told they’re here to serve and protect.

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