- Subject index
The SAGE Handbook of Global Policing examines and critically retraces the field of policing studies by posing and exploring a series of fundamental questions to do with the concept and institutions of policing and their relation to social and political life in today's globalized world. The volume is structured in the following four parts: Part One: Lenses Part Two: Social and Political Order Part Three: Legacies Part Four: Problems and Problematics. By bringing new lines of vision and new voices to the social analysis of policing, and by clearly demonstrating why policing matters, the Handbook will be an essential tool for anyone in the field.
Chapter 22: Policing after Civil Rights: The Legacy of Police Opposition to the Civil Rights Movement for Contemporary American Policing
Policing after Civil Rights: The Legacy of Police Opposition to the Civil Rights Movement for Contemporary American Policing
INTRODUCTION: THE UNFINISHED CONFLICT
As periodic outbreaks of rioting, and violent events within other demonstrations in most wealthy liberal societies across the globe suggests, contemporary police forces in liberal multicultural societies face an abiding deficit of legitimacy or ‘lack of trust’ especially in minority communities, but easily spreading to the broader society especially among members of the millennial generation (Tyler and Huo 2002, Rios 2011, Meares this volume). This is especially true of the aggressive forms of policing in the US that have been promoted in recent decades as critical to making policing effective, sometimes called ‘zero tolerance’ or ‘broken windows’ policing, in which police use their authority to ‘stop’ and often ‘frisk’ young Black and Latino men living in ‘high crime’ neighborhoods. Critics have accused police of racial profiling (Tyler, Fagan, and Geller 2014), while the police and their defenders argue that these tactics have been effective at bringing down high crime rates, to the great benefit of Black and Latino men in those same neighborhoods. Arguably this kind of policing is driven less by crime or racial animus than the mandate that police maintain acceptable public order in highly unequal but ostensibly liberal societies through heavy use of confrontational tactics against those whose class and race mark them as threats to that order (see Bradford and Loader, this volume).
This chapter argues that the cycle of increasingly aggressive policing and declining legitimacy of police in many of these communities has a historical component that has aggravated this dynamic beyond what the structural forces of either crime or inequality might otherwise produce. Specifically, the post-World War II civil rights movement generated a crisis for American policing and upended the model of segregated space-based [Page 374]racial policing that had dominated large American cities in the North, Midwest and West for most of the 20th century (ironically, the South with its legal segregation relied less on this kind of spatial enforcement model to govern a racial order). Police responded by attempting to criminalize and sometimes eliminate civil rights activists while increasing repression of all minority citizens. Police racism and brutality became a frontline issue for civil rights organizers as early as the 1940s when leading Black civil rights lawyer, and future Associate Justice of the US Supreme Court, Thurgood Marshall, described the Detroit Police as ‘the Gestapo of America’ (Murakawa 2014: 44).1
This crisis called for nothing less than a fundamental reconstruction of American police forces including personnel, philosophy and tactics. American policing in the 1950s remained an intensely local institution; governed mostly at the precinct level by powerful captains and only partially by local police chiefs and mayors (Fogelson 1977). It would be another twenty years before Blacks would be a large enough majority in the cities to reform police through local political power.2 In the meantime white citizens, descendants of European immigrants once themselves ‘othered’ but who had become politically powerful, viewed police violence against Blacks as in their interest and necessary.
The Supreme Court began to review a growing number of state prisoners’ appeals beginning in the 1950s, challenging police arrest or investigation tactics as violating the Constitution. The result has been called a due process or criminal procedure ‘revolution’ (Arenella 1983; Steiker 1996) and for the first time it opened up aspects of police practice to the national legal gaze. The resulting standards may have deepened the sense of crisis within policing by allowing arrestees to challenge many of the routine tactics used to maintain the space-based racialized policing. At the same time those decisions also contained values of equality and human dignity that might have proven highly productive to a national conversation about how to reconstruct policing.
That conversation never happened. Instead, mobilizing considerable media and public alarm about escalating homicide and armed robberies in most of America's large cities, the Johnson Administration (and powerful politicians in the Republican party) called for a national politicians’ ‘war on crime’ in which police were recast as frontline troops; an equivalent on the streets of America's big cities to what a huge national military was doing in Vietnam (Simon 2007; Hinton 2015). While this effort would begin with serious aspirations to reform the police through better training and internally developed procedures (Fogelson 1977), it would quickly focus on strengthening police weaponry and tactics with little focus on reshaping the civil rights problems of policing (Cooper et al. 1975).
This moment was critical for what came next. Instead of being reconstructed, and with no significant reversal in their hostility toward civil rights or equal dignity for minority citizens, police forces were ‘redeemed’ and became the subject of federal investment and improvement efforts followed by an expanded mission for the ‘war on drugs’ (Stuntz 2011). Puffed up and valorized by this four decade effort, American police today find it difficult to understand why they are criticized for racism when their forces are far more diverse and almost certainly less racist in attitude than was the case in the 1960s. Yet the policing model in use today almost everywhere, with a heavy emphasis on proactive street confrontations of minority youth, is a direct continuation of policing tactics used against minorities in the civil rights era and then codified as crime prevention policing during the war on crime. The sometimes violent confrontations between police and minority citizens during the post-World War II period, from the 1940s through the 1960s, established the fundamental contradictions with which policing struggles today (although its specific local manifestations will take countless different forms).
[Page 375]The history developed in this chapter overlaps with but is largely missed by the standard narrative of US police development (Fogelson 1977; Walker 1997). That account traces the rise of police departments in the mid to late 19th century to fears of the growing immigrant slums in the large port of entry cities, to the Midwest where those immigrants were drawn by the factory economy. The basic form of large, nominally centrally administered, but very locally operated police forces, engaged in an unspecified range of service and regulatory functions as well as crime fighting and street order maintenance, and of course very corrupt, had become established by the early 20th century in almost all large cities in the US. Two waves of reform would follow, both tied to elite citizens’ fears of immigration or internal migration and the perceived threat of growing crime. The first, in the 1920s, aimed at breaking the link between precincts and local machine politicians who mediated many informal tolerances of illegality on behalf of their constituents. The second, in the 1950s, aimed at professionalizing the police and developing a more centrally organized structure of divisions (Fogelson 1977). Neither of these reforms was concerned with addressing issues of civil rights or improving police treatment of Blacks and other minority citizens. Indeed, maintenance of white supremacy was an unstated premise of reform in both the 1920s and 1950s.When Black citizens began to exercise effective political control at the ward level in the 1960s and at the whole city level in the 1970s they would find it hard to exercise those political levers to address police hostility to civil rights for minorities, because police were now largely insulated from direct political control (other than through appointment of the chief, an inevitably limited intervention). The third wave of reform, launched during the war on crime, was the first to have aspirations to address police hostility to civil rights (Hinton 2015). This would soon be overtaken by a commitment to repressing crime in Black neighborhoods.
The history of policing civil rights is inevitably national (and in the US even local). This chapter focuses on the history of policing civil rights in the United States, with a major focus on the large cities of the Northeast, Midwest, and West from the end of World War II to the present. More tentatively, I suggest this is a case of a broader phenomenon, also found in other liberal capitalist societies where postcolonialism or migration more generally has brought populations racialized as ‘other’ into concentrated presence in postindustrial cities. Civil rights consciousness and protest always follows by a generation the efforts to segregate and stigmatize the migrant generation and with it escalating conflict between police and young men among the subaltern racially other-ed groups. Police, due to their class and professional interests, and the way these are ‘lived out in racial terms’ (Gilroy 1987: 75), are of course almost inevitably implicated in such processes and the resulting struggles over them.
POLICING BEFORE CIVIL RIGHTS
Large American cities on the eve of World War II were policed by large and only semi-bureaucratically organized municipal police forces. Central police headquarters wielded limited power over locally based police captains who organized their local police forces and divided the spoils of corruption in a system of tolerated illegalities among them (Fogelson 1977). Where civil service reform had yet to take hold, this often meant rival local teams of police who traded off being in uniform depending on the vagaries of electoral politics (which of course they took great interest in).3 Precincts were intentionally organized parallel to the ward structure of neighborhood political party organizations; allowing the local party power brokers to be aligned with and largely control the police when they were in power. Station houses, where most police worked from and often [Page 376]spent off hours as well, were in virtually every neighborhood and provided virtually all the policing for that neighborhood (Fogelson 1977).
Race and a very racially marked version of ethnicity (indeed the distinction was hard to draw in the early 20th century), was central to this spatial and political order and therefore to its policing. Police forces provided an important ladder of employment mobility for the very ethnic communities they policed. The Irish dominated as the earliest immigrants to many large Eastern cities, and as, other than Blacks, the only major source of labor with English language skills as the first police forces were being developed. Over time the ethnic or racial make up for each neighborhood was reflected in part in the make up of the local police force (Stuntz 2011). Policing thus relied heavily on the segregated nature of the city in its micro organization. This gave rise to a form of law enforcement and order maintenance subject to political negotiation between police and neighborhood politicians (Fogelson 1977: 252). Blacks and, where they settled, Latinos and Chinese were subject to a particularly harsh version of this race and space form of rule; with very restricted neighborhoods and little if any ‘clout’ or representation with city machines or police forces until the second half of the century (Ibid., 248). Thus, the form of order and legality imposed by police in Black neighborhoods was not negotiated with them, but reflected the preferences and prejudices of police who viewed Blacks as criminally inclined and naturally immoral; which meant tolerating a great deal of vice that was unacceptable in higher status neighborhoods.
This localized system of policing largely survived the major reforms of the 1920s and 1950s, which aimed at making police departments less politically beholden and less corrupt. It began to weaken with the model of preventive patrol promoted by reforming police chiefs in Los Angeles and Chicago in the 1950s (Fogelson 1977). Under this doctrine which soon spread to other cities, police moved out of station houses and off the path of walking beats into cars awaiting centralized dispatch, or aggressively patrolling in high crime neighborhoods (which often meant Black ones). The cities were also changing on the eve of the civil rights movement, with new housing for white families being built in deliberately segregated suburbs while new apartment building style public housing for Black families was being built in traditionally Black neighborhoods (Massey and Denton 1993). The space and race framework of early 20th century cities was being stretched, transformed, and most importantly contested, and police found themselves the central guardians of the old regime (cf., Valverde this volume).
POLICING THE CIVIL RIGHTS MOVEMENT
The Southern part of this story about policing civil rights is now part of our common history of the civil rights era, captured in still photographs of Birmingham police officers using fire hoses and dogs against black demonstrators and in a recent film depiction of the beatings inflicted on civil rights marchers on a bridge out of Selma, Alabama. Non-violent protest against overt racist segregation laws enforced throughout the former states of the Confederacy was met with both white mobs and white police forces bearing fire hoses, police dogs, and truncheons. Less appreciated today (although well known at the time) was the response of northern and western urban police forces to the civil rights demands of African American citizens living under the de facto apartheid of the ghetto including the use of arrest, prosecution, and lethal violence against activists and ordinary citizens. Perhaps no other organized sector of US political society put up a more violent and sustained resistance to the whole premise of equal citizenship for minorities (Skolnick 1975; [Page 377]Fogelman 1977). As both a social group and a political force in urban politics, police found themselves the dominant institution defending a pre-World War II moral code and racial order that by the 1960s was under attack from both minorities and from white urban elites (Agee 2014; see also Agee this volume).
Their response then – uncompromising efforts to criminalize and repress Blacks combined with angry resentment toward white elites – remains a potent reality in urban politics to this day (Domanick 2003). The conflict became even more intense as the struggle for Black civil rights became, after the assassination of Martin Luther King, Jr., in 1968 a struggle for ‘Black power’ in which police (and the segregated white working class neighborhoods they lived in) were often directly squared off with Black communities and Downtown development interests linked to liberal elites, in a perceived zero sum game.
The modern Civil Rights movement rose in the early years of the 20th century in response to a rising tide of lynching, a form of terroristic murder that was openly used to intimidate Southern Black populations. Ironically, the central demand of the movement for a federal anti-lynching law, viewed as a direct threat by powerful Southern Senators who held the balance of power throughout the 20th century, was never accomplished. Other key demands were an end to segregated schools and public accommodations, and an end to discrimination in employment, voting, and criminal justice (Branch 1989).
The US civil rights movement had little success with any of these goals on either federal or state level until World War II. That conflict transformed the movement and the political context. Tens of thousands of Black veterans (a much higher proportion of Black males under arms than was the case after World War I) returned from a war fought to defeat a regime based on racial supremacy. They brought home with them an enhanced sense of standing as national citizens and with federal benefits for educational and economic opportunity incompatible with the subordinated positions intended for them in a segregated society. President Truman responded in 1948 by ordering the desegregation of the United States military. The Supreme Court made the next major move by granting the NAACP, the National Association for the Advancement of Colored People, the chief civil rights organization of the early 20th century, a victory in its forty-year long campaign to end school segregation. The energy of civil rights activists, many of them veterans, and younger men and women mobilized by the great debates engendered already, would push major civil rights legislation in Congress by the middle of the 1960s.
Police violence and disrespect was a central demand of the movement from North to South. Already in the 1940s, Black migration from the South to major Midwestern and Western urban centers for war-related manufacturing found themselves being policed aggressively by white police officers who held anti-Black attitudes and believed that these newcomers would pose a threat to the public order. This wartime context was the origin of historically toxic relationships between the Black community and police in Oakland and Los Angeles (Domanick 1994; Self 2004).The Oakland based Black Panther Party for Self Defense was only the most famous of many such African American and Latino groups who formed in urban neighborhoods to confront police mistreatment of community members (Haney-Lopez 2004).
In another wartime manufacturing hub, Detroit, police killed 18 Black citizens while failing to stop white mobs from burning Black homes. (This was the context for Marshall's comparison of the Detroit Police to the Gestapo quoted earlier.) Just after the war when leading civil rights activists took the extraordinary step of going to United Nations with their claim that the US racial discrimination violated human rights, police violence was one of the central topics in their petition (published as We Charge Genocide). In Atlanta, one of the southern hubs of the [Page 378]civil rights movement, and one of the first cities in the South to begin yielding some political power to Blacks in the 1950s, the hiring of Black police was one of the top political priorities (Kruse 2005: 34).
Given the policing strategy of racialized space based policing, conflict between police and the Civil Rights movements in the North and South would have been inevitable even if as a group demographically speaking police forces were racially integrated or dominated by whites not collectively hostile to the idea of equal citizenship for Blacks and other racialized minorities. However, all the available evidence suggests strongly that police officers in the 1960s were as hostile toward Black civil rights as any group in white society, and they had unquestioned power to express that hostility.
In one of the first empirical sociological studies of the police to be published, William Westley wrote that ‘for the police the Negro epitomizes the slum dweller … he is culturally and biologically inherently criminal’ (Westley 1951: 168, quoted by Skolnick 1975: 81). On Atlanta's police force, many officers at mid-century were members of the Ku Klux Klan (Kruse 2005: 35). In the North East and Midwest, officers identifying with Irish ancestry made up the most important component of the police force and despite having suffered grievous discrimination themselves at the hands of ‘Nativist’ Protestants, those identifying as Irish were typically among the most hostile toward African Americans of any ethnic group represented in large numbers in these cities (dating back to the New York City draft riots of the Civil War). When Jerome Skolnick observed police in Newark and Oakland in the early 1960s, he concluded that from the perspective of Blacks and white racial liberals, ‘policemen would be regarded as highly racially biased’ (Skolnick 1975: 218). Indeed, Skolnick went on to conclude that for the police Blacks were most commonly the ‘symbolic assailant', i.e., the stereotypical nemesis that police imagine as likely to threaten them or others (Ibid., 218). When sociologists Albert Reiss and Donald Black surveyed police in Boston, Chicago, and the District of Columbia in the late 1960s they found three out of four police officers they surveyed self-identified as hostile toward Blacks (Fogelson 1977: 257). In the West where local police forces had been enlarged beginning in World War II to cope with the rapid growth of the wartime workforces on the coast, some officers were recruited from the South (exclusively White southerners). A police witness to the McCone Commission, which investigated the causes of the 1965 Watts riot, acknowledged that most members of the LAPD did not ‘see Blacks as individuals’ and ‘could not distinguish between law abiding and law breaking Blacks’ (Ibid.).
When Dr Martin Luther King brought his national movement to the Westside ghetto of Chicago in the summer of 1966 to conduct demonstrations for open housing in segregated white neighborhoods his non-violent marchers met jeering and rock throwing white mobs displaying Nazi symbols and confederate flags (Branch 1989). On the eve of a march through Cicero – a segregated white working class suburb where many police families lived – and facing threats of violence along the parade route, King agreed to a face saving gesture from Mayor Richard J. Daley to support a fair housing commission in Chicago (Haas 2010: 31–3). Chicago was also the scene a few years later for perhaps the single most violent act of repression against Black activists, the assassination (while in his bed in the middle of the night) of the local Black Panther leader Fred Hampton in 1969 (Haas 2010). Mark Clark, another Panther activist was killed and several other members wounded. The early morning raid, allegedly to confiscate weapons, was conducted by an unusual law enforcement team including Federal Bureau of Investigation agents, Chicago Police and members of a special unit attached to the State's Attorney for Cook County. To many people it indicated a conspiracy from the very highest levels to eliminate Hampton, who some saw as precisely [Page 379]the kind of ‘Black Messiah’ J. Edgar Hoover believed could unify left opposition to American capitalism and overthrow the government (Haas 2010). But it also exemplified how the growing war on crime would both transform the dimensions of traditional city policing while leaving its anti-Black and violent core in place. The well-educated son of two parents who had succeeded in cracking the industrial color line, Hampton was a charismatic speaker under whose leadership the Panthers built significant grassroots support across many Chicago communities. Black Chicago reacted to his death with outrage and demonstrations that went on intermittently for months (much like the demonstrations following the police killing of Michael Brown in Ferguson, Missouri in 2013).4 Hampton's eulogy delivered by Reverend Jesse Jackson to a church packed full of Black Chicago's leading citizens, helped make Jackson, a disciple of Martin Luther King's, Chicago's pre-eminent Black leader and a national player in the Democratic Party; locally, it probably expedited the election of the City's first and to date only Black mayor in 1983.5 Hoover may have eliminated a potential Black Messiah, but Hampton's death also pushed Black leadership to the left and transformed the national Democratic Party.
Whatever the national political agenda against Black activism, big city police had a personal stake in a territorial battle with African Americans for control of city neighborhoods. This conflict was exacerbated by the rapid suburbanization of much of the white Protestant population to the new white and segregated suburbs (Massey and Denton 1998). Even middle class Black families were still effectively locked out of these suburbs by federal mortgage regulations and later by real estate redlining (Ibid.). Meanwhile, Black space in the city was being reinforced in its poverty, and somewhat expanded by public housing complexes that were often built alongside traditional Black ghetto areas to fill in part of the margins left by retreating white residents (with those margins then reinforced by infrastructures like freeways). Irish Americans and other Catholics were to a significant degree behind other whites in suburbanization as a result of their disproportionate employment in big city public jobs (including police) and their territorially based church parishes which could not easily move. Police, a largely white Catholic public work force in those years, were doubly committed to protecting the city as they saw it. That meant little if any service for African American citizens who sought police assistance, and aggressive confrontation with African Americans who tried to access places that police felt they should not be.
It was not only African Americans and their quest for equal dignity as citizens that affronted police in the 1950s and 1960s. Many others were challenging their semi-official second class citizenship status including Latinos, Asian Americans (who were not yet quite the ‘model minority') and sexual minorities, whose lifestyles were viewed as immoral in the eyes of the socially conservative majority of police (Agee 2014; Agee this volume; Valverde this volume). The riot following the NYPD's raid at Stonewall, a Gay bar in Greenwich Village, New York City, made visible how much police were involved in a whole system of maintaining Gay spaces as a criminal spaces and spaces of corruption. Police in the 1950s were still quite committed to defending traditional morality as they saw it. By the 1970s, at least in the cities in which cosmopolitan liberalism allied with downtown development interests were most advanced like San Francisco (Agee 2014) and New York (Soffer 2012) a compromise emerged. Police would back off confronting individual exercise of civil liberties, especially when associated with high status whites regardless of conventional sexual morality, and instead concentrate on aggressive policing of Black communities (Agee 2014).
This new focus on repressing crime in segregated Black neighborhoods coalesced with the most significant change in American police doctrine in a century, the emergence of [Page 380]preventive patrol, introduced in Los Angeles by William Parker and in Chicago with O.W. Wilson (Fogelson 1977). Both were known as reformers in terms of corruption and crime fighting, and in Parker's case at least it went along with hostility to Blacks and Mexican Americans and to their civil rights movements (Domanick 1994). Preventive patrol removed police from their traditional neighborhood base and placed them in cars from which they could focus on suspects in high crime neighborhoods. The goal was to catch crimes in progress or just before they occurred. Later empirical research cast doubt on that premise, but as a tactic it was certain to turn up the conflict between police and young men of crime age in Black and Latino neighborhoods. From LA and Chicago, this approach spread across the country during the 1960s and 1970s as fear of a crime surge (in the 1950s) turned into a real crime wave (Fogelson 1977).
Despite rare exceptions like We Charge Genocide, the conflict between policing and civil rights was primarily played out at the local level. That changed with the riots of the 1960s beginning with the Watts (Los Angeles) riot of 1965 (Cooper et al. 1975; Skolnick 1975; Fogelson 1977). These riots – which happened in Detroit, Newark, and scores of other large and medium sized cities mostly in the North, but occasionally in the South as well – were almost invariably sparked by popular resistance to police efforts at carrying out enforcement actions against local Blacks. The subsequent arson, property damage, and deaths (mostly police and National Guard killings of suspected rioters) made riots a national issue and led to a partial consensus at the end of the decade that police needed to be reformed in their approach toward minority citizens (see, for example, the 1967 report of the President's Commission on the Causes and Prevention of Crime). At the same time this consensus helped to shape a national commitment to equip and train the police to handle protracted civil disorders. The era of riots ended relatively soon, but the new militarized police tactics introduced in response to it would become a long-term feature.
CRIMINAL PROCEDURE REVOLUTION
Prior to the 1950s there was virtually no federal law, constitutional or statutory, regulating police in the United States. Police departments were mostly creatures of city and county governments, and it fell to state and local law to determine the circumstances under which they could stop, search, arrest, and shoot citizens. The general rule was little regulation. Most states had basic laws authorizing police to stop citizens and to make arrests (usually on a probable cause belief that a crime had been committed or was in progress) but it was widely recognized that police exercised their power on the basis of an extraordinary level of discretion (Bittner 1990).
That changed dramatically beginning in the mid 1950s as the United States Supreme Court issued a string of landmark rulings defining protections for citizens confronting the police (and thus norms regulatory of the police). A great deal has been written about this ‘revolution’ in criminal procedure and this chapter will not endeavor to summarize it (Arenalla 1983; Steiker 1996). Critical to our aims however are two points. First, the revolution in protections was, and is recognized as having been, an only slightly hidden front of the larger civil rights revolution (Sklansky 2007–08). Second, the citizens’ rights created were overwhelmingly procedural (Stuntz 2011), something that aligned with the broader vision of racial liberals that better procedures and more professional police would solve policing's anti-Black problem (Murakawa 2014).
The timing of the revolution, the 1950s and 1960s, was responsive to the growing conflict between civil rights and civil liberties [Page 381]activists and the racial and sexual minority communities they represented, and the big city police forces. The transformations within the African American community, and the growing assertiveness of Gay and Lesbian people (alongside heterosexuals whose sexual choices fell outside of the still legally enforced ideal of sex only within marriage) was meeting police resistance in almost every city in America in the form of arrests (often attached to physical brutality) along with typically minor charges. The Supreme Court, which already enjoyed a great deal of discretion over the state cases it reviewed began accepting cases involving policing of minorities and practices threatening to both racial and sexual minorities.
There is no more famous example than Mapp v. Ohio (1961). Dollree Mapp was convicted of possessing pornography based on a police raid of her Cleveland apartment in May 1957. The Court originally granted certiorari to consider First Amendment objections to obscenity prosecutions (another front in the war between police and sexual minorities in many cities), but the case was ultimately decided against the government on the grounds that the police violated Mapp's Fourth Amendment rights when they invaded her home with a bogus warrant (that they proceeded to shove between her breasts when Mapp asked to see it). Applying the exclusionary rule to the states suddenly created a potentially winning issue for the defense in virtually every state criminal case in which the primary evidence, whether physical or testimonial, derived from the police investigation and arrest. Mapp therefore led to a huge disruption in the practice of local criminal justice, including policing, and accelerated the pace of legal reform itself as more litigation of police actions led courts to establish more norms. Some of these reached the Supreme Court and the enormous inflation in the potential value of a lawyer to a criminal defendant led the Court just two years later to find a constitutional right to a lawyer in every felony case (Gideon v. Wainright 1963).
Five years later, in Miranda v. Arizona (1966), the Court ruled in the case of Ernesto Miranda, a Mexican American citizen convicted of rape and kidnapping based on a confession. Miranda had been arrested in 1963 on suspicion of being involved in the kidnapping and rape of an 18-year-old woman. After police falsely told him he had been picked out of a line up, and interrogated him for over two hours without warning him that he had the right to stop speaking to them and the right to consult with a lawyer before being questioned by the police, Miranda confessed. The Court overturned the conviction on the grounds police should have warned him about both rights and informed him that his words if volunteered could be used against him in court. Although the Supreme Court never mentioned race directly, the opinion's famous language about human dignity carries unmistakable resonance with the claims being made by civil rights groups that police accept their equal dignity as citizens. Describing the long history of the privilege against self-incrimination the Court wrote ‘the constitutional foundation underlying the privilege is the respect a government – state or federal – must accord to the dignity and integrity of its citizens’ (Miranda v. Arizona 1966: 461, emphasis added).
The peak (and perhaps turning point) of the criminal procedure revolution came in a 1968 decision, Terry v. Ohio, where the Court held that when police stop people to engage in field interrogations they need to have reasonable suspicion that a crime has been committed or is underway (less than the ‘probable cause’ required for more traditional police actions like arrest or the issuance of a search warrant). So-called ‘stop and frisk’ procedures had gone on probably since the dawn of policing, but they took on new significance with the preventive patrol strategy introduced in the 1950s with its goal of interrupting crime by focusing predominantly on suspicious activities in segregated Black sections of the city (see also Bradford and Loader this volume; Meares this volume). [Page 382]In Terry the Court acknowledged both the pressing concerns in America about crime, and the reality that police field investigations were a particular burden to the experience of minorities. In a footnote Chief Justice Warren, quoting the President's Commission Report (1967), described ‘field interrogations’ as a major source of ‘friction’ between police and ‘minority groups’ (Terry Footnote 11). Going further, the Chief Justice noted that this was particularly a problem for ‘minority youth’ especially where police tried to maintain their power on the beat by ‘humiliating anyone who attempts to undermine police control of the streets’ (Ibid., again quoting the Report).
Despite this extraordinary acknowledgement, Warren chose an artful compromise. Police would be authorized to stop people whom they reasonably suspected of crime, and frisk (or manually search the external clothing and surface of the body through the clothes for weapons) those they reasonabl suspected of being armed (with any weapon). The protection for minorities would become in a specific burden on the state. The police officer must be able to point to ‘specific and articulable’ facts to justify both judgments.
As David Sklansky has shown (2007–08), concern with the rights of Gay men (and to a lesser degree other sexual minorities) were also very much on the minds of the Supreme Court in their criminal procedure jurisprudence beginning in the 1950s. Policing of Gay America in that period was really just a harsh version of the way whole cities were policed in the era before the civil rights movements, that is, through spatially determined selective enforcement tied to both the moral judgment of police as a community and until the 1970s, by aggressive police corruption (virtually a parallel taxing system supplementing police salaries which were already high for the educational demands of the field). Sklansky argues that the pivotal case of Katz v. United States (1967), which expanded the potential privacy protection afforded by the Fourth Amendment from property rights to a concept summarized in an influential concurrence by Justice Harlan as an actual ‘expectation of privacy that society is prepared to recognize as reasonable’ (Katz v. US 1967: 361) was influenced by concerns among the Justices (some of whom had Gay male clerks) over police surveillance of private behavior in public bathrooms (one of the few public spaces available for Gay men to find each other while homosexuality was still a crime). The Supreme Court's concern with the FBI listening in on a closed telephone booth, the ostensible subject of Katz was both a legal (and perhaps a symbolic) substitution for police surveillance of stalls in public men's rooms, a method by which police trolled for Gay suspects to harass and arrest (Sklansky 2007–08).
The second key feature of the Supreme Court's criminal procedure revolution is its emphasis on procedural protections. Rather than addressing racism or homophobia directly, the Court did so primarily by raising the evidentiary standards, such as requiring a warrant and ‘probable cause’ for searches, or by giving suspects warnings of their substantive rights. Proceduralism is of course, a persistent theme of liberal legalism, but it was also the path endorsed by liberal Democrats in Congress who wanted to address police racism without weakening law and order (Murakawa 2014). As critics have pointed out (most forcefully William Stuntz 2011 and Bowers 2013) this procedural approach fails in two respects. With a superabundant supply of ‘junk crimes’ targeted at predominantly minority residents, like drug possession, or gang loitering, police have little difficulty discovering probable cause, let alone ‘reasonable suspicion.’ With liberal ‘waiver’ rules that allow police to ask for consent to search or interrogate people, many of those least confident in their standing to challenge the police find themselves waiving the very protections that the Court awarded to them.
Yet it is not clear whether the problem was really proceduralism, or the overwhelming politicization of crime fear during this [Page 383]same period which led to a proliferation of criminal laws and an abandonment of serious efforts on the part of the courts to police the protections they had created (Simon 2007).6 Had procedural precedents been followed by efforts to assure that reasonable suspicion and probable cause were doing the job of protecting human dignity that the Court had assigned them and further evolution of the law we might look differently today at the effort to tame police discretion with law (see Bradford and Loader this volume). Part of the problem was the lack of training on the part of defense lawyers in how to produce empirical evidence of the essential arbitrariness of race based policing. Lawyers were in many ways made the engine of all of these other protections by another key decision, Gideon v. Wainright (1963), which required states to provide counsel for all charged with felonies.
WAR ON CRIME AND DRUGS
Even as the Supreme Court's criminal procedure revolution was unfolding, Congress and the Johnson Administration began a ‘war on crime’ with the Omnibus Safe Streets and Crime Control Act of 1968, a law which defined urban crime as a new national priority and committed millions of dollars in federal revenues to assist local law enforcement and criminal justice agencies (Hinton 2015). In the first phase of this war, heavily influenced by the liberal Johnson administration, this enhancement effort was expected to work with and reinforce the Supreme Court's commitment to equal dignity of all citizens. Yet by the time the law was being implemented, Richard Nixon had been elected President on a much harsher ‘law and order’ campaign. Indeed the 1968 Omnibus law already contained measures purporting (without effect) to reverse Miranda and several other criminal procedure decisions (Simon 2007). During the first decade of the war on crime, police were very much at the center and received the bulk of the funding (Hinton 2015).
While racial liberals had hoped that federal investment in police would produce more compliance with law and respect for citizens, the result was more to increase the scale and aggressiveness of policing without addressing the underlying anti-Black attitudes of most police. As urban street crime came to be defined as a national enemy as threatening as Communism, these attitudes now had a new and largely unassailable home, aggressiveness toward criminal suspects. As Westley (1951) and Skolnick (1975) had observed, Blacks were only the exemplary occupants of categories central to police thinking and action in the field, what cognitive scientists would call a prototype, the ‘slum dwellers’ in Westley's (1951) terms, or the ‘symbolic assailant’ in Skolnick's (1975). The war on crime now encouraged a significant expansion of the kind of confrontational street policing against perceived high crime targets that had been promoted by police chiefs since the 1950s. Inevitably this meant a focus on Blacks in general and Black youth in particular. Thus, rather than challenging racial attitudes among police officers and ending biased practices in police culture, the significant federal investment in policing during the war on crime hardened into a new and seemingly post-racial hatred of crime (Alexander 2010).
The war on drugs technically began under Richard Nixon, and its first phase was focused more on treatment programs and the problem of addicted returning veterans than is commonly recalled today. It was during the 1980s that a second phase of the war on drugs opened under Presidents Ronald Reagan and George H.W. Bush (Alexander 2010). Although initially focused on drug use among military personnel, students, and workers (First Lady Nancy Reagan's ‘just say no’ campaign and drug testing are products of that era, the latter unfortunately is still with us in the private sector), the 1980s war on [Page 384]drugs soon turned to a police centered campaign against alleged drug sellers and ‘couriers'. Given heavy publicity of ‘crack cocaine’ as the exemplary deadly drug of its day (as heroine had been for the Nixon era), and the near exclusive marketing to minorities of this highly addictive and usable version of a base derivative of cocaine hydrochloride and the South American origin of most cocaine in the 1980s, this inevitably became a war on young Black and Latino men anywhere from the borders to the inner cities and all the highways and transit routes connecting.
The effect on police was enormous, probably bigger than the earlier war on crime. One only has to consider the financial aspects (Alexander 2010). Police could use generous federal grants to pay for significant features of their routine budget, and under federal civil forfeiture laws, keep the proceeds of seized assets like cars and homes associated with illegal activity to pay for almost anything, from new equipment to training workshops at ski resorts. It was as if the era of routine police corruption was back from its recent 1970s burial; only now the profits were legal and indeed honorable.
COMMUNITY POLICING: RECONNECTING POLICE AND THE COMMUNITY AFTER CIVIL RIGHTS
As Michelle Alexander (2010) has forcefully argued, the escalation of a drug war focused on Blacks helped cement for a new generation the linkage between Black communities and violence producing crime. It also helped normalize a regime of extraordinarily aggressive police tactics (preventive patrol obsessively focused on ‘drug crime’ in all Black and Brown neighborhoods) to a generation that no longer associated their origins in racist anti-Black attitudes and practices. The dilemma argued for in this chapter had become set in stone. American policing had been forgiven its anti-Black attitude and spatially based racial profiling practices were now seen as a necessary war against suspects in high crime neighborhoods. There was only one problem: mass incarceration was not very good at reducing crime (Zimring 2006).
As early as the Kansas City Preventive Patrol experiments conducted with federal money in the early 1970s (discussed in Fogelson 1977), empirical research had cast doubt on whether intensifying patrols for suspicious behavior in targeted neighborhoods could reduce crime. The war on drugs intensified that practice and gave it an even narrower target; but crime went up in the 1980s, reaching 20th century highs for violent crime and homicide in the years of President George H.W. Bush.
Much has been written about the great wave of new thinking in American policing that began in the mid-1970s and through the 1980s (Skolnick and Bayley 1988), under rubrics like ‘problem centered policing’ (Goldstein 1979), ‘broken windows policing’ (Wilson and Kelling 1982) and Compstat (Weisbrud et al. 2004), all sometimes generically called ‘community’ policing. Community policing represented a critique of the emphasis on professionalization and organization that had dominated from the 1950s into the new war on crime and drugs. It offered a new way of thinking about how police could act on crime and other community problems. Most salient for us, however, is that it reflected a recognition that police had lost their connection to the communities they served. Half a century of reform had removed most of the connective tissue that had linked neighborhoods and their police, but failed to replace it with other ways of communicating. Policing had come to depend on their own suspicion, which was mostly an unreconstructed continuation of Blacks as the ‘symbolic assailant’ (Skolnick 1975) and which the war on drugs and the drug culture in segregated urban neighborhoods had made superabundant.
All these forms of police innovation (Skolnick and Bayley 1988), reproduced in varying degrees of precision at departments [Page 385]around the country since the 1980s, share an emphasis on creating new pathways of information between police and communities. Problem centered policing seeks to get police officers into new communication relationships with community members by asking the latter about their problems, whether crime related or not. Broken windows policing is mostly concerned with sending messages from police to criminals, and to the community through aggressive policing of minor crime (it hardly deserves to be seen as innovative other than in its idea to focus on neighborhoods in the balance between totally crime ridden and just somewhat dangerous – see Zimring 2011). Compstat seeks to use more sophisticated data analysis to get around police biases (and work avoidance) and a community perceived as hostile. None of these name the scorched earth relationship between police and the modern civil rights movement as a source of the problems they define; indeed most go out of their way to elide race in every respect. Yet the absence of effective channels of political or social communication with the police and Black and Latino communities at the neighborhood level is the core around which each of these new projects was constructed.
Did it work? Police chiefs and police innovators across the country would like to claim that it did (whatever they did). The most careful study of the American crime decline finds it unlikely that either mass incarceration or policing contributed much to the overall crime decline of the 1990s but suggests that in New York City, which enjoyed roughly twice the decline in crime (while the overall incarceration of New York residents went down), changes in the scale and use of policing were likely responsible for a substantial part of it (Zimring 2006). In his follow-up study of New York, Zimring concluded Compstat (which originated there) combined with target force deployments to crime ‘hot spots’ made visible by Compstat, may well have been what worked, and offered some reasons to doubt that ‘broken windows’ contributed much if anything to the crime decline there (Zimring 2011).
Yet even if we take New York City to be an example of the promise of the new community policing to work around the failures of policing civil rights a generation ago (without acknowledging or dealing with them), it came at the terrible price of reinforcing exactly the tactics that had been antagonizing Black and Latino communities since introduced in the 1950s and 1960s: aggressive stop and frisks and racial profiling. Even if we concede the claim made by former New York Department Commissioner Ray Kelly (Floyd et al. v. City of New York 2013), that keeping young men of color on guard against police stops made them collectively safer, it did so by degrading these citizens both as individuals and on collective basis. Not only does this raise profound concerns about human rights in the United States, it also runs into a growing body of empirical research that now clearly encourages people to violate the law (Tyler and Huo 2002; Rios 2011). Moreover, it is engendering more and more resistance.7
COMPARATIVE HISTORIES OF POLICING CIVIL RIGHTS
This has been a study of the police response to the civil rights era in the United States (mostly in the North, Midwest and West) and its aftermath. One country with strong parallels in issues around civil rights policing is England where police played a significant role in efforts to enforce segregation against Black immigrants after World War II, and resistance to police violence became a major theme in the movement for civil rights within that community (Hall et al. 1978; Gilroy 1995). Today, the anti-terror policing of British Muslims is leading to a new cycle of repression and civil rights consciousness and resistance. In both the US and British cases, the real question is whether police have ever effectively dealt with these histories. [Page 386]They have been the subject of innumerable commissions in both societies, but the expression of alienation and antagonism (often soft pedaled as ‘mistrust') remains hot.
It is less clear whether the study of policing in active authoritarian or active conflict societies raises the same policing and civil rights questions (cf., Liu and Martin this volume; Perito this volume; see also Owen this volume). Police in the US ‘ghettos’ were often analogized to the occupying forces role that militarized police played in the colonial world (Cooper et al. 1975) but the analogy status seems important. Police in the US or England have never fully become the kind of militarized occupying forces with no political or legal accountability that has happened in conflict settings. That seems rather important to the kind of effect that policing civil rights has had on policing itself. It has been the relative political success of civil rights movements in liberal societies in resisting and contesting the police in the courts and streets that have often led to the kinds of police reactivity discussed here. It is the incompleteness of that struggle, and its hardening of the unbridled repression of the war on crime, that makes building trust in minority high crime communities so daunting. I do not mean to suggest that aggressive policing targeting minority and subaltern youth was born with and as a reaction to civil rights movements in the US; as Bradford and Loader (this volume) argue, such forms of policing seem endemic to highly unequal capitalist societies (and more so as inequality deepens). It is the escalation of police aggressiveness in the aftermath of civil rights that I have sought to describe with the US case, and which I hypothesize may lead to enduringly higher levels of police repression and resulting conflict where it has not been acknowledged and resolved. In short, policing civil rights is more than a US problem; it is primarily a challenge of liberal societies broadly speaking (Skolnick 1975).
An interesting question for future research is whether the step taken in many postconflict and post authoritarian nations, of formally disestablishing the old police and constituting a new one, e.g., South Africa (Brogden and Shearing 1997; Sauerman and Ivkovic 2015), and Northern Ireland (Moran 2008), is something that will be necessary with US police forces; at least those with the worst legacies of anti-Black attitudes and practices. Surely a prior step would be the kind of concerted effort at explicitly addressing the racial attitudes and history of racist practice in specific departments that Norm Stamper (2005) tried in Seattle during his tenure as chief there in the 1990s.
For more than half a century, American political and legal elites have played a double game with police and civil rights: insisting that police respect the equal dignity and civil rights of minority citizens, while demanding that they fight an aggressive ‘war on crime’ directed at segregated Black and Latino neighborhoods. The priority of the latter over the former meant that the direct role police played in repressing the civil rights movement in America was wiped from the public conversation while practices consistent with anti-Black police attitudes were newly enshrined as essential tools of public safety.
For at least a quarter century American police forces have engaged in a frantic pattern of innovations aimed at producing a ‘work around’ to close the huge gap this history left between urban police forces and the very communities in which they mostly operate. In various forms ‘community policing’ has been hailed as a success; but while crime in American cities has dropped dramatically by both major measures since the early 1990s, there is little empirical evidence that policing practices have contributed to this outside of the singular and controversial case of New York City (Zimring 2011; Floyd et al. v. City of New York 2013).
History itself can be a problem for the legitimacy of law enforcement. With crime at a historic low and with growing public [Page 387]revulsion at the indignities Black citizens suffer at the hands of police made available by ubiquitous cell phone videography growing, this is the right time to reverse the priorities of the 1970s and prioritize the goal of reconstituting American policing without its historic commitment to race and space-based control. That process must begin with recalling that history.
1Intriguingly, Senator Abraham Ribicoff, then the only Jewish member of the United Senate, analogized the Chicago police to the Gestapo some 25 years later amidst the police riot against anti-war protesters at the 1968 Democratic National Convention.
2I capitalize Black throughout and leave white in lower case to remind readers that race, in this case Blackness, is a product of power (the upper case) produced through the investment of state and private structures in diminishing the status of those citizens so described in the interests of establishing a privileged status in whiteness. From this perspective there is no whiteness, just the possibility of people claiming that as a property right (refused here in the lower case).
3A process began in the 1920s during America's first great national campaign against crime associated with Prohibition, but haphazard in its spread through the US.
4Fred Hampton's murder is one of the few in the history of police, anti-Black and anti-civil rights violence, where his killers faced an actual criminal trial, including the elected County District Attorney Edward Hanrahan. Although the federal trial ended in acquittal, the evidence was seen as decisive and civil suits ultimately terminated in settlements for the families of the victims. Hanrahan, seen by many as Mayor Daley's chosen successor left office a ruin and was injured for life in an attempted revenge killing (Haas 2010).
5Jackson's formidable 1984 and 1988 Presidential nomination bids laid the ground work for Barack Obama's victories a generation later.
6It is often pointed out that the conservative Supreme Courts that followed the Warren Court (1954–1968) left in place most of the key precedents including the ones discussed here. Yes, but by consistently weakening their application.
7Since the Mayoral election in 2014 a new administration, that of Bill De Blasio (who importantly is white but part of a multiracial family) elected in part on anger over racial profiling has led a major roll back in the use of stop and frisk tactics. Even that did not head off the year of demonstrations that followed the killing of an unarmed Black man engaged in the minor illegality of selling untaxed cigarettes.