The Yale Law Journal

VOLUME
130
2020-2021
NUMBER
4
March 2021
778-1049

Police Reform Through a Power Lens

PolicingCriminal Law

abstract. Scholars and reformers have in recent years begun to imagine new and different configurations for how the state can design policing institutions. These conversations have increased in volume and urgency in response to the 2020 national uprising against police violence, when radical demands born within social movements have gained steam—demands to defund the police, to institute “people’s budgets,” and to give communities control over the state provision of security. In recent years, within this time of foment and possibility, social movements have been proposing, creating, and sometimes establishing new governance arrangements that shift power over policing to those who have been most harmed by mass criminalization and mass incarceration. These recent pushes by social movements for power shifting surface a fundamental set of questions about the very purpose of police reform, adding a new way for scholars and reformers to think about the contours and objectives of the state’s provision of safety and security—what this Article terms the power lens.

This Article examines the movement focus on power shifting in the governance of the police at both the local and national levels. It fleshes out a three-part theoretical account of why the power lens is an important and necessary addition to how scholars and reformers view the regulation of policing. First, shifting power to policed populations is reparative, in the sense that it shifts power downward toward populations who have been denied political power directly as a result of the history of policing policies and practices in their neighborhoods. Second, power shifting is a means of promoting antisubordination, based on the idea that it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups. Third, a power lens on police reform promotes a particular view of contestatory democracy, one in which democratic policing has as one of its objectives the facilitation of countervailing power for those subject to the domination of the state. Taken together, the power lens brings a critical eye to the ways in which the construction of the notion of “expertise” often denies agency to the people who most often interact with police in the streets and on the roads. More broadly, the power lens opens up discussions of reform to first-order questions about how the state should go about providing safety and security in our time, with or without the police as we know it.

author. Professor, Brooklyn Law School. For helpful feedback, thank you to Amna Akbar, Shima Baradaran Baughman, Rick Bierschbach, Sharon Brett, Bennett Capers, Tony Cheng, Erin Collins, Brenner Fissell, Barry Friedman, Trevor Gardner, Brandon Garrett, Bernard Harcourt, Benjamin Levin, Kate Levine, Kay Levine, Theo Liebmann, Larry Kirsch, Sandy Mayson, Jason Mazzone, Janet Moore, Jamelia Morgan, Alexandra Natapoff, Ngozi Okidegbe, Sunita Patel, Tony O’Rourke, Sabeel Rahman, Alice Ristroph, Anna Roberts, Shirin Sinnar, David Sklansky, Chris Slobogin, Cara Suvall, and Nathan Yaffe, as well as participants at the Brooklyn Law School Faculty Workshop, University of Chicago Public Law Workshop, Columbia Law School Faculty Workshop, Hofstra Law School Faculty Workshop, Illinois Law School Police Reform Discussion Series, Duke Law School Center for Science & Justice, Stanford Law School Faculty Workshop, Vanderbilt Law School Faculty Workshop, Vanderbilt Criminal Justice Roundtable, CrimFest 2019, Junior Criminal Justice Roundtable, Law of the Police Conference, and the Conference on Agency, Race, and Criminal Procedure at Wisconsin Law School. Thank you to the Brooklyn Law School Faculty Fund for financial support, to Annamarie Foster for excellent research assistance, and to Steffi Ostrowski, Derrick Rice, and the editors of the Yale Law Journal for their superb feedback and editing.

Introduction

The demands that emerged amid the 2020 uprisings against police violence and white supremacy brought into the national consciousness radical ideas for change in how the state should provide safety and security. There are demands to defund the police, to have the people decide how budgets are allocated, and to give communities control over how to define public safety. To look back just one year is to see how these visions are the product of long-term organizing by directly impacted people—especially Black, Latinx, and Indigenous people—pushing to create new visions of how to keep each other safe. In June 2019, for instance, Black Lives Matter Chicago and other local groups held a press conference to condemn the killing by Chicago Police Department (CPD) officers of five people of color in the previous thirty days. The activists issued a call to action, summarized in this tweet: “Defund, Disarm, Disrupt CPD and business as usual. #FightBack #CPACNow.”1 The last hashtag references a bill that had been recently reintroduced in the Chicago City Council to form the Civilian Police Accountability Council (CPAC), which would consist of civilians chosen through elections in each neighborhood district.2 As the activists supporting the bill have written: “Without taking power away from the police and the state systems that operate in complicity, nothing will change. We need community in control. It is our democratic right.”3 When protests erupted on the streets of Chicago in May and June of 2020, people were ready with their transformational demands. “CPAC NOW” became a ubiquitous sign and chant, often placed or chanted in tandem with a demand to defund the Chicago Police Department.4

In late 2019, a national coalition of grassroots groups led by people who are formerly incarcerated, the “People’s Coalition for Safety and Freedom,” took the 25th Anniversary of the 1994 Crime Bill as an opportunity to present a vision of national legislation that could replace that much-maligned bill.5 The new legislation would require the federal government to reduce its spending on the criminal legal system and invest instead in health, education, housing, and infrastructure.6 The People’s Coalition insists that new national policies be generated by “join[ing] forces with the people most harmed by policing, criminalization and incarceration.”7 The result is a call for a “People’s Process,” in which federal legislators would be required to conduct townhalls, workshops, and peoples’ assemblies on the impact of mass criminalization; hold in-district congressional hearings on the impact of the 1994 Crime Bill; and, ultimately, draft legislation based on the priorities of directly impacted people.8 These ideas reemerged in the summer of 2020, embodied in the BREATHE Act and the People’s Coalition’s continued work to engage in their own “People’s Process” to craft federal budgeting priorities.9

These two long-term collective efforts—locally, in Chicago, for community control of the police; and nationally, via the People’s Coalition, to repeal and replace the ’94 Crime Bill—represent two different scales of a growing emphasis within social movements: reckoning with police violence by imagining new forms of governance and policymaking in which power is shifted to those who have been most harmed by mass criminalization and mass incarceration. These calls for power shifting surface a series of questions about police reform and the governance of criminal legal institutions more broadly. One set of questions gets at the specifics of institutional design within governance arrangements. This is a subject that Sabeel Rahman and I take up in a parallel work, analyzing the elements of institutional design in local governance that can (or cannot) facilitate contestation, build power, and push back against the antidemocratic structures of laws themselves.10 But the movement visions of legislative and institutional change also bring forth a more fundamental set of questions about the very purpose of “police reform,” whether it is local, national, or somewhere in between. By concentrating on power arrangements and a particular form of contestatory democracy, these movements open up police “reforms” to new institutional arrangements with the potential to facilitate the defunding and even abolition of policing as we know it.

Underlying the contemporary movement demands for governance changes that include community control of the police and a national “People’s Process” is a critique of two leading ways of thinking about the objective of reforming the governance of law enforcement. The first traditional way of thinking about police reform is instrumental: reformers focus on policies that they hope will lead to particular outcomes traditionally associated with policing success—as examples, a reduction in reports of violent crime or a reduction in police use of unconstitutional excessive force.11 A second leading way of conceptualizing police reform focuses on building trust between the police and communities so as to enhance the legitimacy of the police.12 Often, the instrumentalist and the legitimacy approaches are combined in a manner that aims to strike a balance between the two goals, or to weave them together into one coherent method.13 In contrast to the instrumentalist approach or the legitimacy approach, the movement focus on governance and policymaking in police reform adds a different idea about what it means to regulate the police effectively. The reform proposals from movement groups surface the specific role that policing plays in denying people in highly policed neighborhoods their democratic standing and collective political impact. They advocate reform efforts to counteract the antidemocratic nature of policing. They focus on power.

Since the uprisings in Ferguson and Baltimore intersected with the formation of the Movement for Black Lives (M4BL), the last six years have seen far-reaching changes in how the public and legal scholars alike think about policing14—changes that have only intensified in the wake of the 2020 uprisings.15 These changes would not have been possible without the push from movement actors to recognize the racialized and subordinating history of policing in the United States.16 A number of legal scholars has argued recently that transformative change is necessary if we are to realize legitimate, fair, and equal means through which the state can provide security. For example, Paul Butler, Bennett Capers, and Tracey Meares have all called for us to think of police reform as a “Third Reconstruction,”17 implying a total shift in the way that the state provides security in the context of the history of racist and racialized policing. Amna Akbar, Monica Bell, and Barry Friedman have, in different ways, all called for a complete transformation in how we think about the path forward: For Bell, it is a focus on undoing the subordinating effects of racial segregation;18 For Friedman, it requires disaggregating the roles that we ask police officers to play in order to reduce harm;19 And for Akbar, it requires the reduction and elimination of the police footprint altogether.20 And a number of scholars have called for the “democratization” of policing, a rethinking in how we administer policing as much as in what our policies and priorities for policing should be.21

Even if these scholars disagree on what that “reconstruction,” “transformation,” or “democracy” would look like, as well as whether the institution of policing can ever be compatible with racial justice or public safety,22 there is a tentative agreement from many corners that large-scale transformation is necessary and possible. This tentative consensus creates an opening to imagine new and different configurations for how the state can organize policing specifically and the provision of safety and security more generally. Thanks to the radical visions of social movements, a vast range of possibilities stretches out before us, from cementing our current policing practices with improved specialization and increased resources, to abolishing our institutions of policing altogether. It is within this range of possibilities that some movement actors have begun to propose and create new forms of governance arrangements that shift power over policing to those who have historically been the targets of policing. Although many of these efforts remain relatively unrecognized in the public sphere, some have gained national attention in 2020, including calls to defund the police, efforts to institute people’s budgets that implicate law enforcement and community wellbeing, calls for community control over policing, and demonstrations of long-term mutual aid as an alternative to policing. In many of these proposals, one central goal of the “reform” is to shift power away from the police and toward policed communities.

In this Article, I identify the movement focus on power shifting in the governance of the police and provide an account of why we should incorporate the power lens into the array of objectives of “police reform.” This analysis consists of three theoretical arguments.First, shifting power to policed populations might be reparative,23 in the sense that it shifts power downward toward populations who have been denied political power directly as a result of the history of policing policies and practices in their neighborhoods.24 Second, power shifting might be a means of promoting antisubordination, based on the principle that “it is wrong for the state to engage in practices that enforce the inferior social status of historically oppressed groups.”25 Third, a power lens on police reform promotes a particular view of contestatory democracy, one in which democratic governance has as an objective the facilitation of countervailing power for those subject to the domination of the state. This view is anchored to a larger belief that direct forms of agonistic contestation are crucial for democratic justice,26 in part because it is our criminal legal system itself that, by definition, yields forms of domination and violence.27

Taken together, these ways of thinking about power shifting in policing—as reparations, as a method of antisubordination, or as facilitating contestation necessary for democracy—create a lens on policing that adds a critical layer to the dominant ways of thinking about the objectives of “police reform.” The power lens asks analytical questions separate and apart from traditional focuses on outcomes like crime rates, incidents of police violence, or a community’s trust in the police. Instead, it asks reformers to consider who has been and is in danger of being harmed by policing, and to connect that inquiry to questions about who has control over policing policies, priorities, and practices. It asks scholars and reformers to imagine what it would mean to set aside temporarily a desire to rely on traditional “experts”28 or even “evidence-based”29 practices—for it may be that lay people are not well-equipped to form policies and distribute resources in a way that leads to improvements in traditional police-reform metrics, like crime rates or trust in the police. Divorced from this focus on outcomes, the power lens brings a critical eye to the ways in which the construction of expertise itself denies agency to the people who most frequently interact with police on the streets and on the roads: most often, poor Black and brown people. One way to unearth this analysis is to examine the governance and policymaking proposals being put forth by social movement actors—people traditionally thought of as “nonexperts”—themselves.

Methodologically, this Article uses social movement visions of legal change as a starting point for asking broader questions about how we think about and study policing and the criminal legal system.30 In this sense, it is both descriptive and normative: it provides a descriptive account of a way in which some social movement actors are approaching reform, and then follows with a normative account of why scholars should take this approach seriously and weave it into existing scholarly accounts of the regulation of policing. When this view “from the bottom” is brought into scholarly discourse over the contours of police reform and police accountability, the resulting analysis expands the range of possibilities for how we approach goals such as justice and public safety.31

The power lens is rarely going to be, on its own, a complete way of approaching reform of the criminal legal system. Instead, it can be a complementary lens, one that must be separated out in order to be analyzed properly. In a sense, it is at the meso-level of police reform: concentrating on governance and policymaking arrangements rather than outcomes or policies themselves.

Indeed, there is no guarantee that a power-shifting arrangement in policing would on its own lead to any particular outcomes. Communities, however defined, are not monolithic,32 a reality that has become especially salient as communities of color have disagreed internally over the summer of 2020 about calls to defund the police.33 The result of power shifting in police reform could easily go in a very different direction than that envisioned by activists in Black Lives Matter Chicago or the People’s Coalition, the two movement groups that are at the center of the examples of the power lens that I examine in this Article. Community control of the police, for instance, might very well lead a particular police district to more police patrols, more arrests, more stops-and-frisks, and an increase in other tactics that are seen as “tough on crime.”34 Moreover, changes in top-level policies in police departments have no guaranteed effect on the behavior of police officers; changes in police department policies or even resources might not lead to widespread change on the ground.35 Such a result would surely frustrate activists who aimed to reduce or defund policing in their neighborhoods. But considering the normative value of this outcome would be a separate question from whether there had been a power shift in the course of the governance arrangement that led to this kind of policing. This Article attempts to engage in that separation between various lenses and levels of reform, giving the power lens the serious attention that social movements demand of us.

At the same time, it is through the process of demanding power that movement groups are able to put more radical demands—such as abolition—on the table of what is possible.36 It is no coincidence that the calls for power shifting that this Article describes come from abolitionist grassroots organizations, many of which organize under the banner of the Movement for Black Lives,37 and all of which have been engaging in collective projects to redefine public safety on their own terms, imagining and creating ways in which “we keep us safe” in a world without police.38 The analysis by these groups of the ways in which policing in the United States has mediated the oppression of people and communities on the basis of race, gender, and disability focuses on how policing is deeply intertwined with structural impediments to self-governance.39 Indeed, although there are plenty of disagreements between individual abolitionist groups about which method of power shifting is the best road to abolition,40 there is seemingly a consensus that power shifting is important and necessary to the larger abolitionist project, and it should be a part of “non-reformist” or “transformative” reforms.41 This is because abolitionist demands require contending with first-order questions about how the state should provide safety and security: Should it be through policing and prosecution and prisons or through state support of communities and responding to harm in other ways? By claiming power over the governance arrangements that lead to the distribution of state resources and agencies devoted to “safety,” abolitionist social movements are able to put these first-order questions on the table and then contest the answers to them in ways that traditional, consensus-based modes of reform have foreclosed.

The Article proceeds in four parts. In Part I, I present an account of leading ways of thinking about the purposes of police reform, each of which contrasts with the movement focus on power—what I term the power lens. Part II presents a descriptive account of the contemporary, social movement focus on power shifting as a central goal of police reform, using the examples of community control of the police and the push to adopt a “People’s Process” to write new federal legislation. Part III presents a theoretical account of the power lens, focusing on three justifications for it: a reparative view, an antisubordination view, and a view of contestation as necessary for democracy. In Part IV, I explore some implications of the power lens for how reformers should think about the governance and scope of policing.In particular, I examine how the power lens unsettles traditional notions of expertise in policing. I conclude by arguing that if scholars and reformers were to think about power shifting alongside other goals of reform, we could open up the terrain of reform to ideas and communities that are too often excluded from the conversation. Indeed, we could potentially open up our governance arrangements to contestation over the very existence of our institutions of policing.