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The Police Were a Mistake

Law enforcement agencies have become the standing armies that the Founders feared.

Timothy Clary/Getty Images

Contrary to most of American folklore, the Founding Fathers were not a supernaturally wise monolith. Leading revolutionary figures like James Madison and Alexander Hamilton may have shared certain broad values, such as a commitment to republicanism, but they often passionately disagreed about what, exactly, the new nation’s political systems should look like. The Constitution that they ultimately wrote is more of a compromise between those differences than a perfect resolution to them.

One issue where the Founders were virtually unanimous, however, was their fear of standing armies. From Julius Caesar’s legions at the Rubicon to Oliver Cromwell’s New Model Army to the forces mustered by European monarchies, large armed forces in peacetime invariably threatened a free people’s rights. Many of the 13 Colonies’ postindependence constitutions included declarations that standing armies “are dangerous to liberty, [and] they ought not to be kept up.” John Adams warned that they should be “watched with a jealous eye,” while Thomas Jefferson referred to them as an “engine of oppression.”

Those fears deeply influenced the Constitution, which includes multiple tools for Congress and the president to keep the military under civilian control. “A standing military force with an overgrown executive will not long be safe companions to liberty,” Madison said in a speech to the Constitutional Convention. “The means of defence against foreign danger have been always the instruments of tyranny at home. Among the Romans it was a standing maxim to excite a war whenever a revolt was apprehended. Throughout all Europe, the armies kept up under the pretext of defending have enslaved the people.”

Those fears took on new meaning as civil unrest spread throughout the country over the last several days. Tens of thousands of Americans took to the streets to protest the death of George Floyd, a 46-year-old black man who was brutally killed by four Minneapolis police officers last week, and the culture of police brutality and militarism that has permitted a long list of similar killings. In response, police officers in cities across the country have largely responded violently, with abusive and authoritarian tactics. Social media networks are flooded with footage and accounts of cops shoving elderly pedestrians and innocent bystanders into pavement, bludgeoning journalists or pelting them with rubber bullets, and dispersing lawful crowds with tear gas and overwhelming force.

Modern American policing—the militarized departments, the heavy-handed enforcement of minor laws, the deep-rooted racial inequities, the resistance to firm civilian control—has existed for so long that it’s easy to assume it’s the natural state of our society. In fact, this form of law enforcement is essentially a policy experiment, and a failed one at that. The American constitutional order is not designed to reform and supervise what are effectively armed paramilitary forces in every major city. Eventually, perhaps already, one will have to bend to the other.

There are now more than 18,000 law enforcement agencies in the United States, according to the Bureau of Justice Statistics. Most of them are small, parochial institutions that range from county sheriffs’ offices and small-town police departments to tribal police forces and state park rangers. Some are behemoths. “I have my own army in the NYPD, which is the seventh biggest army in the world,” former New York City Mayor Michael Bloomberg boasted in 2011. His claim is only a slight exaggeration. The New York Police Department currently includes more than 36,000 uniformed officers, more than double the size of the state national guard. It maintains its own navy, air force, and intelligence service.

This level of social control and management would have been alien to Americans for a large portion of this country’s history. Early American communities did not have a “police force,” at least not in any form their modern-day counterparts might recognize. Most towns and cities relied upon a night watch to keep the peace after sunset, as well as constables and sheriffs to enforce court orders, execute warrants, and deliver summonses. Southern police departments can also trace their genealogy to slave patrols, which helped maintain the institution of slavery before the Civil War with the full force of government power.

American cities would not move toward professionalized and uniformed police forces until the 1830s and 1840s, starting with cities like Boston and Philadelphia. They drew inspiration from London, where Home Secretary Robert Peel had led the creation of the Metropolitan Police in 1829. Historians often frame Peel’s work in the context of London’s population growth and a move toward Victorian-era social and moral reform. It also took place against a backdrop of social and political tensions over Irish nationalism, labor reform, and Catholic emancipation.

“The new force faced hostility from the Whigs, from magistrates, and from parish councils, whose jurisdiction the Act appeared to infringe,” Adam Zamoyski wrote in his book Phantom Terror, which documents the paranoia among European counterrevolutionary leaders after the Napoleonic Wars. “It was widely denounced as an attack on civil liberties, an attempt by the government to establish a private army and introduce ‘espionage’ into the country, and as thoroughly un-English. When they first appeared on the streets, in their blue uniforms and top hats (blue tailcoat and white ducks in summer), their only weapon a rattle and a truncheon, the members of the new force were either ridiculed with epithets such as ‘Peelers,’ ‘Bobbies,’ ‘raw lobsters,’ and ‘Jenny Darbies,’ (gendarmes), or vilified as oppressors and spies.”

Creating American police forces would be no less controversial. In the 1830s and 1840s, New York City was regularly wracked by riots and crime waves. Local constables were either unwilling or unable to impose any sort of order upon the burgeoning metropolis. Reformers and some newspapers demanded action from their elected officials. But local leaders firmly resisted creating any force that would resemble the British military occupation during the revolution, which still lingered in public memory.

“That sour feeling continued to be felt for generations, and the people saw the proposed police force as another occupying army, loyal to the mayor and not the residents,” historian Bruce Chadwick wrote in Law & Disorder, his history of the NYPD’s tumultuous nineteenth-century origins. “New Yorkers, and people throughout the country, also feared the enormous cost of a large and professional force. The country had just staggered through two recessions and the financially catastrophic Panic of 1837; citizens were careful with every penny of public expenditures, and a police force would cost a lot of money.”

A defining principle of American democracy is civilian control of the military—that every general and admiral answers to the president at all times and can be dismissed by him for any reason. State and local leaders, by comparison, often wield substantially less influence. Even in cities where reform-minded mayors win higher office, they can find themselves subsumed by the combined influence of police unions, prosecutors, and other forces that favor the status quo. Federal influence, which was already sporadic, is also now waning fast. Under President Donald Trump and his attorneys general, the Justice Department largely abandoned its efforts to reform local police departments through consent decrees and other civil rights tools.

Perhaps the most glaring instance of how mayors can be undermined by police comes from New York City. Bill de Blasio took office in 2014 after campaigning against NYPD abuses under his predecessor, Michael Bloomberg, including the city’s infamous stop-and-frisk policy that largely singled out young black and Hispanic men. After a grand jury refused to indict NYPD officer Eric Pantaleo in December 2014 for the killing of Eric Garner, de Blasio gave a speech on the incident in which he noted that he and his wife had often talked with their biracial son about why he should be cautious around police.

De Blasio’s remarks infuriated NYPD officers and, perhaps more importantly, the powerful police unions that represent them. After a gunman killed two of the department’s officers in a targeted attack later that month, hundreds of police officers turned their backs on the mayor during his eulogy at a memorial service. The rebuke reportedly damaged de Blasio’s willingness to challenge his city’s police department, and he steadily became one of the NYPD’s highest-profile defenders. In recent days, he said NYPD officers had “acted appropriately,” even as footage and accounts showed persistent abuses. His reversal hasn’t even seemed to earn him any favor among officers: After his daughter, Chiara, was arrested at a protest over the weekend, the Sergeants Benevolent Association posted her personal information and arrest record on Twitter.

Other institutional hurdles stand between elected officials and police oversight. One of the paradoxes of modern policing is that the officials best equipped to violate an American’s rights also receive the most legal protections from scrutiny and accountability when it happens. Derek Chauvin, the Minneapolis officer who killed George Floyd, had received at least 17 misconduct complaints in the course of his tenure; had his career been derailed by any of them, Floyd would be alive today. Police unions often negotiate contracts that require complaint records to be regularly purged from local databases, delay investigations into misconduct, and limit civilian leadership’s ability to fire officers who are found culpable. On the few occasions when officers are actually kicked off the force, they are often hired by departments in other cities that aren’t aware of their previous work history.

Courts have added other barriers to police accountability. In theory, state and local government officials can be sued in federal court for violating a person’s civil rights under Section 1983, a key provision in the Civil Rights Act of 1871. But the Supreme Court has steadily curtailed Section 1983’s scope with a judicial doctrine known as qualified immunity, which shields the police and other officials from lawsuits under certain circumstances. In recent years, the court has made it even easier for courts to dismiss Section 1983 cases against cops in particular. Though the rulings have drawn criticism across the ideological spectrum, the justices appear no closer to changing course.

That sense of impunity compounds other problems. For one, police officers in many large American cities often don’t actually live in the neighborhoods they police. In 2014, for instance, FiveThirtyEight found that in Minneapolis, only 10 percent of officers—and only 5 percent of white officers—actually lived in the city limits. The NYPD even has a rule that uniformed officers aren’t allowed to live in the precinct where they work, meaning that the city’s communities aren’t patrolled by people who actually live there. When residents in these communities feel like they’re being overpoliced by an outside force over which they have no control, it’s because they are.

What are Americans getting out of this bargain? Not as much as they might think. Though police departments’ mandate is to investigate crimes, they often aren’t very good at it. In 2018, The Washington Post released “Murder With Impunity,” a major project looking into homicide clearance rates in major cities across the country. It found that in most of the country’s largest cities, police departments struggle to solve many of the homicides that they investigate, particularly in overpoliced communities. What’s more, the Post found that 68 percent of big-city departments have actually seen their clearance rates decline over the past decade, even though homicides across much of the country have dropped to their lowest level in decades. In other words, the police are getting worse at solving murders, even though there are fewer of them to solve.

At the same time, departments often find themselves pursuing far more trivial offenses. Perhaps the most egregious examples were documented in the Ferguson Report in 2015. Compiled by the Justice Department, it found that the Missouri police department’s practices were “shaped by the City’s focus on revenue rather than public-safety needs.” It cataloged dozens of instances where cops acted like petty despots who fined members of the community for petty and trumped-up offenses, then jailed them when they often couldn’t pay. This “policing” strategy by a mostly white police department fell upon Ferguson’s African American residents. The Justice Department found stark racial disparities almost everywhere it looked: For a two-year period leading up to Michael Brown’s death, for example, every defendant charged with “resisting arrest” was black.

The result is a severe social, economic, and physical toll on certain American communities, particularly among predominantly black and Hispanic neighborhoods. At the same time, modern policing also exacts a profound toll on its agents. In 2019, 228 active or former police officers died by suicide, more than four times the number of officers who died in the line of duty that year. Officers who repeatedly deal with traumatic situations are also more vulnerable to developing a range of mental-health disorders, including depression, anxiety, and post-traumatic stress disorder. The effects can spread far beyond the affected officers themselves. Researchers have found that domestic violence rates are substantially higher for law enforcement families than for other families.

There are some instances where troubled police departments have taken serious steps toward reform, including in places like Newark. But events over the past week have shown that there are far more departments that may be beyond saving. Exactly what should replace them would be up to their respective communities. Perhaps smaller, detective-heavy police departments that focus on homicides, white-collar offenses, and other major crimes would be a healthier alternative. Perhaps shifting the bulk of police budgets into housing, mental health care, and other social services would be a better long-term investment. Whatever the alternative to armed paramilitary forces on American streets may be, we should not hesitate to find it.