INTRODUCTION
Across the country, crowds braved the pandemic to demonstrate against racism and police violence, with the seeming support of every organization with a public relations department.
Yet amid this consensus,
demonstrators’ calls to “abolish” or “defund” the police provoked controversy.
These slogans expressed that discriminatory police violence is a policy,
not a “split-second judgment[]”
or the work of “bad apples”;
that the war on crime diverted needed resources from the poor communities it preyed upon;
and that a good society achieves safety by peaceful, participatory means.
Conservative critics seized on these slogans as incendiary threats to leave society defenseless against crime,
while liberal centrists fretted that hyperbolic rhetoric would fracture a fragile consensus for reform and an electoral coalition poised to retake power.
Yet the Minneapolis City Council proposed a referendum and city charter amendment to disband its police force and replace it with a new “Department of Community Safety and Violence Prevention.”
While Minneapolis’s efforts have stalled,
initiatives to substantially reduce police budgets continue to make headway in other cities.
This Essay offers a democratic perspective
on dissolution of police agencies as neither utopian, nor anarchic, but as the kind of institutional experimentation
that should be routine in a properly functioning democ-racy. The existence, function, jurisdiction, and governance structure of police agencies are, after all, questions of institutional design, properly resolved by a democratic public. Consider first, the wide range of police functions and powers—combining investigation, security, custody, community caretaking, and emergency response.
Police serve as agents of both judicial and executive branches of government and intervene in disputes and mental health crises.
Should all of these functions be performed and prioritized by the same agency? Consider second, the enormous multiplicity and overlap of our 18,000 police jurisdictions, employing almost 900,000 armed officers and 400,000 civilians.
Is this arrangement of jurisdictional authority optimal? Is this enormous capacity for coercive force necessary? Consider third that it is axiomatic that in a democracy, use of force must be subject to democratic supervision.
What institutional design would best achieve this democratic control?
In other arenas, when institutions perform poorly, we replace them. In business planning, firm structure is shaped by such economic considerations as transaction costs.
We expect market competition to replace worse firms with better ones and hope that corporate law will enable shareholders to replace ineffective managers with more competent ones.
In policy design, we don’t simply ask what a given institution should do to solve a problem. We compare the information-gathering and decisionmaking competence of such institutions as courts, administrative agencies, and markets to determine which is best suited to address the problem.
And of course, we expect competitive elections to replace policy decisionmakers.
In all these settings, we view the power to replace decisionmakers as an accountability mechanism.
So too, when the public expresses discontent with the performance of police agencies, we should ask not only whether their work can be done better, but whether it should be done at all, and by whom. As part of that inquiry, this Essay examines the appeal and feasibility of disbanding police agencies. “Disbanding” means legal dissolution of an agency—the organization ceases to exist, its expenditures cease, its jobs are eliminated. Collective bargaining agreements governing those jobs become inoperative.
Disbanding the police does not, however, entail any commitments as to what happens after disbanding. It does not necessitate the abolition or the partial or total defunding of the law enforcement function. Instead, it may replace long-enduring police agencies with new forces, alternative forms of community governance and mutual aid, or whatever else a policymaker’s imagination conjures.
Thus, disbanding does not decide whether police work will be done, or by whom—but it does open that question to democratic decision.
In fact, disbanding and replacing police agencies is a strategy that not only could be, but repeatedly has been used to reform law enforcement in the United States.
As this Essay reveals, however, police agencies are harder to disband than many other governing institutions. They are entrenched, not only politically, but legally. In Minneapolis, for example, an unelected Charter Commission blocked the City Council’s proposed referendum to disband and replace the city’s police department, thus illustrating one of the many structural obstacles to dismantling even a politically unpopular police force.
While disbanding police agencies does not achieve police abolition, the difficulty of doing so reveals something important about the abolitionist project. Policing, as we know it, is doubly entrenched. Policing practices are entrenched in police agencies, and police agencies are entrenched in governmental structures. Posing the problem of disbanding police agencies reveals that “the police” are not just a suite of (possibly unnecessary) functions, or a set of (possibly pernicious) practices, but also a distinctively unresponsive (and possibly illegitimate) legal and political institution. To fundamentally change how public safety is achieved in our society will also require removing police agencies from their status as autonomous public authorities and subjecting them to democratic control. Paradoxically, however, our current lack of democratic control over police agencies is the product of the many layers of ostensibly democratic supervision. The dense network of state, county, and local laws governing those agencies produces a structure democratic in form, which in practice serves to insulate police from meaningful reforms—and also impedes disbanding.
This Essay assesses disbanding police agencies from two points of view, framed by two questions. First, can we sufficiently improve the performance of law enforcement by reforming existing agencies? If not, we have reason to replace them. But second, assuming we have reason to replace existing police agencies, is it feasible to do so? This question, in turn, depends on two further inquiries: Can police agencies be disbanded or substantially shrunk; and if so, how can they be replaced by something better?
Part I addresses the first question by examining the normative and prudential case for disbanding police agencies. It describes the toxic interaction of three pathologies of policing: first, the extraordinary and unwarranted scale of the American criminal system, with the highest incarceration rates in the world; second, the political insulation of police agencies from democratic accountability, especially to those most affected by their actions; and finally, both of these circumstances have helped make policing an instrument of racial subordination, reflected in an African American incarceration rate as much as six times that of whites.
Part I then proceeds to identify several structural obstacles to effective reform of existing police agencies. Most such reforms rely on adding more oversight and training while leaving in place agency structures already performing these functions. Monitoring and sanctioning resistant organizations from the outside require both effort and political will that are difficult to sustain. Such efforts are likely to be systematically resisted by powerful police unions.
Monitoring and training must also contend with an insular rank-and-file culture of solidarity, secrecy, and mistrust of the public. In the face of these obstacles, reforms may accomplish little while provoking costly pushback, or may win cosmetic changes in return for expanding police agencies’ mission and resources and enhancing their legitimacy. In either case, the high costs of reform may outweigh meager benefits. Given the pathologies of existing police forces, and the obstacles to their reform, there is indeed reason to disband them and build new institutions.
Part II addresses the feasibility of disbanding and replacing police agencies by examining the legal structures of the two most prevalent types of agencies in terms of numbers of agencies and officers: municipal police departments and county sheriffs’ offices.
This review yields three observations. First, the entrenchment of local law enforcement practices is due in part to the structural entrenchment of local law enforcement agencies. This entrenchment is easiest to see in the office of the sheriff, a constitutionally established state institution, independent of county government. Second, this structural entrenchment is often the result of political struggles between state and local governments, driven by cultural and economic conflicts, with the victors encoding political victories in law. This dynamic is particularly important in explaining the insulation of urban police departments. Third, the prospects for reform are further diminished by jurisdictional overlap between police, sheriffs’ offices, and state police; and among cities, counties, and states. For example, a city electorate that disbands its police force to reduce aggressive policing practices could find itself more aggressively policed by a sheriff’s office answerable to a county electorate.
Having explicated structural impediments to both incremental reform and wholesale replacement of police agencies, the Essay turns, in Part III, to their strategic implications. First, these structural impediments reveal a law enforcement exceptionalism with respect to democratic accountability that, no less than the pathologies of policing, should be a target of re-form.
Police agencies, like the public authorities formed to bulldoze urban neighborhoods and flood farming communities,
have been designed to operate outside of democratic controls.
This democratic deficit is especially troubling for armed domestic security forces that, in total, out-number all but four armies in the world.
Second, the uniquely entrenched status of police forces did not arise by accident. Police agencies have been structurally immunized against reform by previous generations of reformers. This suggests that, third, where reformers win sufficiently broad support to overcome structural barriers and change practices, they should also strive to simplify police governance to create more flexible and democratic structures, leaving law enforcement exposed to further change and thereby empowering democratic publics with continuing leverage and influence. A necessary feature of such structural reform is to reduce veto points by subjecting policing to one layer of authority. Fourth, that one layer of democratic authority should be at the local level, where the human consequences of law enforcement are felt, and where communities of color have the greatest potential to exercise power.