Defining policing is essential to reform it

Despite their lofty rhetoric against police brutality, local and state politicians have never meaningfully regulated policing. The responsibility for answering basic questions of policing — what is an arrest?, what is excessive force? when can an officer search you? — has long been abdicated to the court system to decide constitutional law. So few laws govern policing that one would be hard-pressed to find anything remotely appearing to be a policing code in their local and state laws, though they may find sanitation, health, and fire codes with ease.

Though attention to policing reached an apparent peak in 2020 after the killings of George Floyd and Breonna Taylor, legislative initiative to engage with the nuts and bolts of policing failed to follow. Although some well-meaning reforms were passed, they ignored root problems and moved the reform movement forward by inches, if that far.

In response to Mr. Floyd’s death, New York City banned chokeholds by police officers, prohibiting conduct that was largely already illegal under state law. In response to Ms. Taylor’s death, the Louisville Metro Council banned no-knock warrants, ignoring the fact that the warrant in her case was faulty from the outset. And the Minneapolis City Council voted to eliminate its police department entirely, only to reverse course and instead vote to maintain its current officer staffing levels after swift public outcry, including from communities that most vociferously demanded reform.

These legislative acts are typical of what has been a disappointing year of legislative responses to the demand for meaningful change, and they reflect a simplistic cause-and-effect approach to policymaking. If George Floyd was killed by suffocation, then let’s ban that. If Breonna Taylor was killed during the execution of a no-knock warrant, then let’s ban that, too. And if the police are the ones committing the abuses, let’s get rid of them entirely. But we cannot legislate our way out of the problems with policing by simply banning every perceived abuse or abusive officer.

We need our politicians and policymakers to finally lay the groundwork necessary to readily define what policing is, its failures and successes, and the public’s safety needs. Only then can we even attempt to chart where we go from here. We need states to clarify the extent to which local governments can regulate their police departments and to impose standards to ensure best practices are consistently deployed statewide. We need police departments to make their data both public and publicly accessible, giving us not only the statistics but the data used to generate them. We need politicians to pass laws that require transparency in policymaking so that communities know what the police are doing, why they are doing it, and how what they are doing serves the public’s safety needs. And we need policymakers to create lasting pipelines of community input on public safety policies that go beyond crimefighting and that strive for the higher goal of community vitality, a metric of safety defined by reference to more than just crime rates and broken windows.

Successfully implementing these changes will yield benefits for police officers and communities alike as we take the time to meaningfully consider what we need to feel safe, how policing can contribute to that sense of safety, and what more is needed. Failure to so, however, will keep us chained to the same cycle of history that we have been cautioned to avoid by those who have undertaken these same efforts in previous generations.

A particularly stark warning comes from Dr. Kenneth B. Clark, the noted psychologist whose research formed much of the basis for challenging segregation in Brown v. Board of Education. In his testimony before the 1968 Kerner Commission, Dr. Clark warned of “the same analysis, the same recommendations, and the same inaction” when it came to critical issues of social justice in America, including policing.

He found himself parroting the same findings as had been offered by his own predecessors before countless other commissions in the early 20th century, each of which had failed to ignite meaningful legislative action. Sadly, the Kerner Commission’s report succumbed to the same fate, and we stand scarcely ahead from where Dr. Clark and the Kerner Commission left us in 1968. Instead, we find ourselves offering the same analysis and advocating for the same recommendations, hoping to avoid the same inaction.

Thankfully, the momentum generated in 2020 can still be used to leverage significant changes in 2021, as public demand for reform remains high. The energy of a motivated and concerted campaign to reform policing still has the same potential it had at the beginning of the year. We just need local and state legislators to act with the same aplomb with which they offer their mere promises to do so.

Jorge X. Camacho is the Policing, Law, and Policy Director & Clinical Lecturer in Law at Yale Law School. He is a member of The Yale Justice Collaboratory.