There is clearly a problem with policing in America. News of dead innocent Americans at the hands of the police pours in daily. Many people feel a sense of fear – not safety – when they pass a police officer on the street. Am I violating some absurdly specific law? Have I done anything to warrant his attention?
It hasn’t always been this way. What happened?
To understand both what’s wrong with law enforcement today and how to fix it, we need to examine the history and evolution of police forces in the United States. Everything in what follows is from an interesting article written by police historian Gary Potter of Eastern Kentucky University, who has also written eight books on crime.
Potter’s brief history demonstrates that policing followed the same trajectory in American history as other sectors such as education, banking, transportation, zoning, and industrial planning generally. What had in the 19th century been generally provided informally, privately, and spontaneously became by the turn of the century and after formalized, official, publicly provided, and planned.
The Night Watchman
Before the establishment of the first municipal police department in 1838, law enforcement was a laissez faire enterprise in America. It began with night watchmen. These men would be posted at various locations around any given city to stop any crime they may see taking place. These men were supervised by a constable, who organized their activities.
However, this was not a very effective system. Although the night watch position was supposed to be voluntary, it was often forced upon miscreants as a kind of communal punishment. Besides this, night watchmen were often inebriated while on duty.
As Potter writes, “Augmenting the watch system was a system of constables, official law enforcement officers, usually paid by the fee system for warrants they served. Constables had a variety of non-law enforcement functions to perform as well, including serving as land surveyors and verifying the accuracy of weights and measures.”
Law enforcement officers were paid by the fees from the warrants they served. This creates an important incentive system: law enforcement officers are incentivized to catch criminals because this is the source of their paycheck.
However, they did not have the authority to simply apprehend anyone they may think is committing a crime. They could only arrest someone who had an active warrant out for his arrest, which had to be procured from a judge. This means that this system of law enforcement was highly reactionary: officers only became involved after the crime had been committed. A citizen who had been wronged would have to procure enough evidence to show a constable that he or she has been robbed, beaten, etc. The constable then had to take this sufficient evidence before a judge in order to obtain the arrest warrant.
This means that a person could only be arrested for committing a crime that had a victim. And a person could be detained only after the crime had already occurred. This ensures that everyone is always innocent until proven guilty, and that the principles of self-ownership and personal liberty are well protected from the enforcement arm of the state.
Policing Changes in the Late 19th Century
However, this all changed in 1838, when Boston became the first city in America to establish a full-time police force. By the 1880s, all major American cities had municipal police forces.
Potter explains what these departments had in common: “These "modern police" organizations shared similar characteristics: (1) they were publicly supported and bureaucratic in form; (2) police officers were full-time employees, not community volunteers or case-by-case fee retainers; (3) departments had permanent and fixed rules and procedures, and employment as a police officers was continuous; (4) police departments were accountable to a central governmental authority (Lundman 1980).”
Law enforcement in the South did not arise from any sort of honorable “desire to protect the populace.” Potter explains:
“The genesis of the modern police organization in the South is the Slave Patrol. The first formal slave patrol was created in the Carolina colonies in 1704. Slave patrols had three primary functions: (1) to chase down, apprehend, and return to their owners, runaway slaves; (2) to provide a form of organized terror to deter slave revolts; and, (3) to maintain a form of discipline for slave-workers who were subject to summary justice, outside of the law, if they violated any plantation rules. Following the Civil War, these vigilante-style organizations evolved in modern Southern police departments primarily as a means of controlling freed slaves who were now laborers working in an agricultural caste system, and enforcing Jim Crow segregation laws, designed to deny freed slaves equal rights and access to the political system.”
These facts raise the question: why 1838? Why were the mid-1800s a breeding-ground for the creation of municipal police forces? Although a massive crime wave would seem to be a logical explanation, this is not the case. There was no pandemic threat of overwhelming crime. So, why did police departments all spring up around the same time?
Potter’s answer displays the authoritarian roots of the modern police state:
“More than crime, modern police forces in the United States emerged as a response to ‘disorder.’ What constitutes social and public order depends largely on who is defining those terms, and in the cities of 19th century America they were defined by the mercantile interests, who through taxes and political influence supported the development of bureaucratic policing institutions. These economic interests had a greater interest in social control than crime control. Private and for-profit policing was too disorganized and too crime-specific in form to fulfill these needs. The emerging commercial elites needed a mechanism to insure a stable and orderly work force, a stable and orderly environment for the conduct of business, and the maintenance of what they referred to as the "collective good" (Spitzer and Scull 1977). These mercantile interests also wanted to divest themselves of the cost of protecting their own enterprises, transferring those costs from the private sector to the state.”
Thus the conclusion: modern police forces are a result of extremely effective crony capitalism and the authoritarian desires of the political elites. They created the modern police force out of a concerted effort to coerce the masses to ascribe to what the political elites of the time believed is the greatest “collective good.” This concept flies in the face of the principles of personal liberty and voluntary cooperation our society was founded upon. Furthermore, what gives the wealthy few the right to assume the dictation of the lives of millions of sovereign individuals? The injustice in the origins of modern police are striking.
However, the problems only get worse. Potter expounds upon the latent inequality at work in the early days of police work:
Defining social control as crime control was accomplished by raising the specter of the ‘dangerous classes.’ The suggestion was that public drunkenness, crime, hooliganism, political protests and worker "riots" were the products of a biologically inferior, morally intemperate, unskilled and uneducated underclass. The consumption of alcohol was widely seen as the major cause of crime and public disorder.
This isolation of the "dangerous classes" as the embodiment of the crime problem created a focus in crime control that persists to today: the idea that policing should be directed toward "bad" groups (see eugenics), rather than actual criminal behavior that threatened life and property.
To Surveil and Control
In addition, the creation of the modern police force in the United States also immutably altered the definition of the police function. Policing had always been a reactive enterprise, occurring only in response to a specific criminal act. Centralized and bureaucratic police departments, focusing on the alleged crime-producing qualities of the "dangerous classes" began to emphasize preventative crime control.
The presence of police, authorized to use force, could stop crime before it started by subjecting everyone to surveillance and observation. The concept of the police patrol as a preventative control mechanism routinized the insertion of police into the normal daily events of everyone's life, a previously unknown and highly feared concept in both England and the United States.
As Potter makes clear, modern policing methods were born out of rampant racism and a desire to suppress American citizens' constitutionally guaranteed right to peaceably assemble. I need not expound upon the plethora of gross injustices intrinsic to this immoral system of law enforcement. The police were created as a brutal enforcement tool of the political elite. Can you imagine the horror Thomas Jefferson or John Adams would view this revelation with?
Despite its foundational racism, this form of policing still persists in America today. There have been many attempts at reform, but few have had any lasting impact. Potter explains these reform attempts in great detail, but for brevity’s sake I will leave them with him. Potter does, however, point out an important fact: the overwhelming body of scholarly literature finds that the increasing police, surveillance of the population, heightened arrests, and so on, have virtually no impact on crime.
More Police, More Problems
Now, let’s fast forward to today: what kind of impact do the police still have on our society? SWAT teams conduct approximately 80,000 no-knock raids per year. Even though America only consists of 5% of the world population, we have almost 25% of the world’s prison population. We have 725 prisoners per 100,000 citizens, which is the highest in the world.
The world average is 145 per 100,000 citizens. Nearly 2.2 million Americans are behind bars. The racial disparities within our system are even more appalling. Together, African Americans and Hispanics comprised 58% of all prisoners in 2008, even though African Americans and Hispanics make up approximately one quarter of the US population.
Five times as many Whites are using drugs as African Americans, yet African Americans are sent to prison for drug offenses at 10 times the rate of Whites. Civil forfeiture laws allow police officers to take all of your physical belongings under any “reasonable suspicion” of any criminal activity. You then have to sue the police and prove your innocence to get your belongings back. You will be lucky to receive 75% of everything they took from you, if you are able to win the lawsuit.
Clearly, a massive change is needed in the way we, as a culture, enforce property rights and punish aggressors. Only through a proper understanding of the history of policing institutions can we suggest meaningful and ethical remedies to the sickness that currently plagues criminal justice in the US.