Transforming Policing and Criminal Justice: An Open Letter from Faculty Members of ASU’s School of Criminology & Criminal Justice

In the United States, managing the tensions between the privileged, politically dominant classes of society and its politically, socially and economically disadvantaged classes, to which communities of color have disproportionately belonged, has always been a central concern of police and the criminal justice system. Some U.S. police agencies were explicitly established in the Civil War era to help preserve slavery and white supremacy. And other early police agencies and other parts of the criminal justice system were created to control social and political unrest among the disadvantaged classes. At least through the 1960s, police and criminal justice systems saw their mandate as largely about maintaining order among the disadvantaged classes. Black and Native American people have acutely been on the harsh end of this order-control mandate.

Modern police and criminal justice agencies inherited this legacy and must work purposefully to transform their role from one of maintaining unequal social order to one of helping to establish a more equal, just and safe social order.

In the midst of the nation’s latest period of civil unrest over the homicide of Mr. George Floyd, while in the custody of Minneapolis police officers, we undersigned faculty members of Arizona State University’s School of Criminology & Criminal Justice feel obliged to speak publicly, on the basis of our research and experience, about what can and must be done to transform policing and criminal justice into more widely trusted and trustworthy institutions. We comprise one of the nation’s largest criminology and criminal justice faculties, with collective expertise in many aspects of crime and the criminal justice system, from police to prosecution to courts to juvenile justice to corrections. We are variously trained in criminology, criminal justice, psychology, sociology, political science, and law. We are demographically diverse and working to become even more so. A number of us also have experience as criminal justice and police practitioners and administrators. We are both supportive and critical of police and criminal justice agencies’ methods of operating. We strive to be balanced, objective, fact-based, and unbiased in our methods and conclusions. We don’t always agree with one another, and we find that our disagreements sharpen our thinking as much as do our agreements.

Although not all society’s leaders are equally committed to a fundamental transformation of the police and criminal justice system, for those who are, on the basis of our collective research and experiences, we propose here some of the major necessary steps that should be taken.

1. Acknowledge the harms caused to people of color by the past and often present actions of the police and the criminal justice system. For centuries, communities of color — particularly Black and African American — have experienced disproportionate amounts of unjust policing. Racism has existed and continues to exist in many forms: explicit and implicit, institutional and systemic. Making things right first requires acknowledging wrongs, both to atone for them and to avoid repeating them.

Teach new police officers and prosecutors about the historical legacy of racial oppression within their chosen fields and why people in some communities are reflexively skeptical or mistrusting of the criminal justice system. Police officers and criminal justice officials are less likely to resent resistance to their actions when they better understand from where that resistance was born.

Create opportunities for police officers, prosecutors, corrections officers, and judges to develop genuine empathy for the people with whom they will be interacting. Have them walk in others’ shoes, or at least among them, to better understand their struggles and perspectives. It’s all too easy to insulate oneself in one’s own occupational culture.

2. Promote public safety and security without overreliance on the criminal justice system. Much of what the police deal with is not criminal in nature — or not entirely criminal — and consequently is not well addressed by a system designed for other purposes. The criminal justice system is built largely for punishing wrongdoers and separating them from society. Overuse of the criminal law undermines both its effectiveness and public respect for it. And true justice is seldom realized solely by maximum punishment.

Redefine the police role from one of merely enforcing the law to one of treating its law enforcement authority as but one tool among many, only to be used carefully and judiciously. Redefine the role of district/state/circuit attorneys to be something more than mere prosecutors of the criminal law. Expand and make more central a “community prosecution” approach in which government lawyers join police in community problem solving.

Make clear that effective policing and criminal justice includes safeguarding all people’s constitutional rights and civil liberties; explain that this is not just a restriction on authority, but an affirmative obligation and the ultimate source of authority in a democracy.

Recognize that public safety and security are affected by such things as legitimate economic opportunity, education, youth development, mental health care, substance abuse prevention and care, the provision of social services, controlled access to weapons, the design and management of physical spaces where crime might occur, and the design of products that might be stolen or used as crime tools.

3. Recommit police to a community problem solving approach. Research confirms that the more focused police are on the people and locations associated with public-safety problems, and the wider the range of interventions they use to address those problems, the more effective their efforts will be. And the more that police involve the affected communities in developing and implementing these interventions, the more likely it will be that those responses are fair and balanced, and perceived by the public to be so.

Substantially broaden the type of interventions police, prosecutors and courts use to address community problems; police and prosecutors should not be limited to invoking the criminal process to address all problems. Community engagement, warnings, environmental redesign, mediation, referrals to and coordination with social service providers, providing mental health and substance-abuse treatment, reinforcing informal social control, using civil laws and regulations, and conveying information are among the viable alternatives to criminal arrest, prosecution and incarceration, under the right circumstances.

The more personalized that policing is — where police officers and citizens know one another as individuals, rather than merely as representatives of a group — the less risk there is for misunderstanding and aggressive action toward one another, and the greater the degree of empathy, in both directions.

4. Hold police and all criminal justice officials meaningfully accountable for their decisions and actions.

Create meaningful opportunities for people to have a say in how they are policed and adjudicated.

Raise the standard of what constitutes legitimate police action from what is merely lawful to what is reasonable under the circumstances. Given that police officers often have options available to them, it should not suffice for officers to justify their actions merely by the absence of a law or rule prohibiting that action.

Continue and expand the use of police body-worn cameras to document police-public interactions. Research and experience demonstrate that, when properly used, body-worn cameras show promise in curtailing improper police actions and in documenting police officers’ actions.

Hold police officers and other criminal justice officials accountable not only for their own actions, but for preventing other officials from causing harm through improper actions. Police officers should be required to intervene to stop excessive use of force by other officers. Prosecutors must intervene to prevent wrongful prosecutions and convictions, and judges to intervene to curtail racial bias in the courtroom.

Expect police and other criminal justice officials to be accountable not only for the decisions they make in each incident or case, but in their strategic approaches to public safety as well. Many bad policing and criminal justice outcomes in incidents and cases are largely attributable to line personnel carrying out flawed strategies developed by their superiors. Policing and prosecution strategies and methods must routinely be assessed for both fairness and effectiveness. Zero-tolerance policing, indiscriminate and widespread “stop, question and frisk” practices, and undue administrative pressure on police officers to meet enforcement quotas and on prosecutors to maximize conviction rates or sentence severity promote unfair and sometimes unlawful policing and prosecution.

Require that critical incidents such as use of deadly force or wrongful arrests, prosecutions and convictions be investigated by qualified independent investigators from outside the involved agency. The natural tendency to protect one’s close colleagues inevitably threatens the integrity and vigor of internal investigations.

Review critical incidents both for the purpose of holding individuals accountable for their actions and, as importantly, for better understanding all that contributed to the bad outcome for the purpose of preventing future similar bad outcomes. Recognize that these are separate purposes, calling for separate types of investigations.

Invoke a full range of consequences for improper police conduct, from criminal prosecution at the most egregious and intentional end of the spectrum to mediation, apology, explanation, and reconciliation at the other end.

Ensure that police agencies’ accountability systems encompass sound policies and training, effective supervision, and meaningful review of critical decisions and actions.

5. Continue reducing the level of force police use. Teach police officers conflict de-escalation skills that reduce the need for coercive action and promote their use through policy and supervision. Continue developing non-lethal tools and techniques for officers to use in lieu of deadly force. Adopt and promote policies that call for police to use the least amount of force necessary to achieve their lawful objectives, including accepting that in some circumstances, allowing an offender to avoid immediate apprehension is the wiser and safer option, for all concerned.

6. Promote the understanding and practice of procedural justice among all police officers and criminal justice officials. Emphasize why its practice is so critical to official actions’ being perceived by the public as fair and to encouraging people to abide by social rules and cooperate with legal processes. Procedural justice requires that officials a) demonstrate a sincere concern for people’s welfare, b) listen to all sides of a matter, c) demonstrate impartiality in decision-making, and d) treat all persons with professional courtesy and respect. Fair and effective policing requires strong support from all communities being policed. Community fear and distrust of police undermines every legitimate policing objective.

7. Continue diversifying police and criminal justice agencies demographically, for the multiple purposes of equal employment opportunity, giving all members of society a sense of being included in policing and justice, and promoting more empathetic policing and criminal justice processing. Actively recruit applicants from groups which historically have not felt welcome in policing. Improve hiring practices to select for candidates who have demonstrated maturity, self-control and the ability to relate well to people different from themselves; and screen out candidates with propensities for violence and conscious racial, ethnic, gender, and sexual orientation biases.

8. Teach police officers and other criminal justice officials how even subconscious human biases, including racial and ethnic biases, can lead to bad outcomes, and how those biases can better be controlled. To be biased is to be human; to know how to recognize and control harmful biases is to be professional.

9. Continue transforming correctional institutions from being solely places of punishment to places that purposely work to have the people in their custody leave the institution in a better state than when they entered: more educated, skilled, compassionate, self-controlled, responsible, sober, and mentally well. And then extend that support to people as they transition back into the community.

10. Support police officers and all front-line criminal justice officials who are genuinely trying to be fair and effective in their work. Whatever bad and unjust actions are occurring in policing and criminal justice, there is also a lot of genuinely helpful and just work going on as well. Not much positive comes from having honest, caring public officials feel mistrusted and unappreciated for their efforts. As well, providing for police officers’ physical safety and emotional wellness needs benefits not only them, but the communities they serve.

The most needed support for police and the criminal justice system is to substantially relieve them of primary responsibility for addressing so many of society’s problems. Far too often, society’s biggest and most challenging problems are laid at the feet of police and the criminal justice system to “fix.” Drug and alcohol abuse, child neglect, undocumented immigration, untreated mental illness, homelessness, traffic safety, and many civil disputes are among the major social problems that are well beyond the capacity and expertise of police and criminal courts to handle alone. And, while some renewed calls to defund or even abolish police departments are not realistic, the underlying truth is that if police were not expected to be the principal response to so many social ills, there would be less need for as many of them. Most police officers would be glad to have other more qualified people handle much of the business that otherwise falls to them. There is a great need for the police to be able to shift and share some of their responsibilities.

Conclusion

All this, and more, constitutes the unfinished business of the U.S. police and criminal justice system. Those of us who have been around for several decades have a sense of déjà vu about the current crisis. Several times since the major uprisings of the 1960s has the question of the basic fairness of the nation’s police and criminal justice system toward people of color been forced upon the entire nation’s consciousness, all the while never escaping the consciousness of many people of color. Many of the issues we present here have been addressed in some fashion, yet many need to be addressed with renewed vigor. They are not going to be satisfactorily resolved without sustained effort and attention in the coming months and years. In a free and open society such as ours, a perfect system is not likely achievable, but one that is perpetually being perfected is. We at Arizona State University’s School of Criminology & Criminal Justice dedicate our continued efforts to this cause.

Revised June 9, 2020

Patricia Barnhart, Brian Brehman, Alyssa Chamberlain, Claudine DeCarolis, Scott Decker, Adam Fine, Kate Fox, Hank Fradella, Karen Gordon, Jon Gould, Abigail Henson, John Hepburn, Eric Johnson, Charles Katz, Clayton Kidd, Aleksandr Levitan, Edward Maguire, Ojmarrh Mitchell, Andrea Montes, Jesenia Pizarro-Terrill, Kevin Robinson, Michael Scott, Randall Snyder, Cassia Spohn, Stacia Stolzenberg Roosevelt, Gary Sweeten, Cody Telep, Jayn von Delden, Danielle Wallace, Xia Wang, William Weins, Douglas Wilkey, Michael White, Kevin Wright, Shi Yan, Jacob Young

 

News image: 

ASU News tag: