Good Enough: Futures of Crime and Punishment (Part V)

Tuesday's Child Is Full of Grace

How do you get to a better future when there are people who are deeply invested in and dependent upon a worse present? Here’s where the political problem of substantial change settles in and chills the bones of any hopeful proposition.

A theme that’s going to keep coming up in these essays is the constrained, contradictory framework most of us employ to think about agency and motivation. Why do people do what they do when some other group of people (let’s say, “we”) don’t want them to do it? Sometimes we think it’s because they can’t help it, sometimes we think it’s because they’re in the grip of some cultural formation that doesn’t have to make sense, sometimes we think it’s because they’re rationally pursuing their self-interest. Sometimes we think it’s not a question about individuals or individual motivation but about institutions, systems, things, that have repeated operations and circuits that include human beings but that are not the result of what those human beings (individually or collectively) intend or wish to do. All of us—them, too—are part of the organizational machinery of militaries, universities, bureaucracies, corporations, economies, and many of the gears turn whether any person wishes it or not.

This is why I still find Kahneman’s work useful despite the fact that it’s not a comprehensive replacement for the real, full contradictory tangle of different ways to understand motivation and action. The question of why people might oppose a better future is the political problem that matters. Sometimes that’s about a tangible, visible, relatively simple motive. Sometimes it’s about a century-long cultural formation that’s deeply nestled inside the everyday lives of some group of people. Sometimes it’s not a question about people but organizations. Sometimes, most of the time, it’s all of the above.

So as this series winds towards concrete ideas about better futures of crime and punishment, there’s a last hurdle to consider, a last history that’s consequential. Who isn’t interested in a better possible world on these issues? Police, prosecutors, prison guards, bail bondsmen, defense attorneys, some law firms in general, journalists who’ve become reliant on crime reporting as a way to maintain their audience, publics who rely on the status quo as a system for reinforcing their own social identities and hierarchical positions.

But why? Especially, primarily, because of self-interest. But also because of deep histories of culture, ideology, habitus. Because they’re within systems that churn and turn without being directly ordered to do so. Because the people within those institutions and systems can’t imagine life being any other way than it is right now and can’t imagine the potential future—or the really different past.

That’s where to start, simply to head off the usual first move in objection to substantive reforms, which is to assert the essential, transhistorical character of the institutions or practices targeted for transformation. While we may be in something of a post-fact, post-truth moment, it’s still useful to put the historical reality on the board in response to that move.

Most centrally in terms of the groups and institutions that stand in the way of reform, policing as Americans know it today is a relatively modern institution that only took on a form even vaguely resembling its contemporary shape during the 20th Century. Many of its doubles and alternatives in the 18th and 19th Century are not desirable alternatives: the lynch mob, the Pinkertons, the paramilitary, the slave catchers—and in fact, modern professionalized policing initially presented itself as a consolidated and highly institutionalized replacement for many of these other forms of state and communal punishment and retribution against subject populations, labor activism, moral or social transgression and actual violation of criminal statutes.

Policing and incarceration didn’t really become the ultra-powerful institutional formations we’re presently grappling with until the 1970s, and then even more so with militarization and the privatization of some prisons in the 1990s and early 2000s, combined with mandatory sentencing laws.

The major point of reprising this yet again is to recall the contingency of policing. But that does little good for dispensing with the simplest structure of political motivation, which is self-interest. It helps just a little to know that policing as we know it is recent and anything but inevitable—a fact most serving police may themselves not know (though many wouldn’t care even if they did).

I focus on policing because I think it’s the most intractable political obstacle to substantial reform, something that seems obvious enough in the United States of 2021. Other groups that join the police at the barricades against reform are easier to undercut or push into a reformist position. Prosecutors, for example, are subject to political pressure in most major American cities, and that pressure can make it nearly obligatory for them to shift over to a substantially reformist position. Privatized prisons were created with the stroke of a pen and plausibly can be unmade that way too. They may lobby and make big donations to politicians, but by themselves, they don’t have enough clout to stand up to reform—and the people who work for privatized prisons will likely be working for the same prison if it once again falls under government control. Prison guards definitely have some of the same tightly compacted self-interest as police in the status quo—many prisons are the major economic lifeblood of struggling rural communities—but even in the better future that is possible, the gates to prisons aren’t going to be unlocked in a single night and any reduction in the size and scope of incarceration is going to happen over a long interval.

There’s a complicated problem around the edges of these essays, which is the use of civil litigation as an alternative pathway to punishing wrong-doing, which is a hugely lucrative business that sustains many law practices. That has to be discussed and tackled separately at the end of this series of essays.

So, the police. What makes them the singular political problem that stands in the way of some better possible futures? First, they have a keenly developed sense of their self-interest in the status quo and extremely powerful and well-organized institutions for collective action. Police unions don’t just engage in collective bargaining and represent the interests of their members, they are often covert mechanisms for coordinating the resistance of serving police to political authority and for training police to defer, undercut, and sabotage any form of investigation or oversight aimed at policing. Current police unions are tightly attuned to the political economy of police recruitment and retention, meaning they will defend the profession against even modest reform initiatives that would increase training requirements, narrow eligibility for police work, produce nationwide databases tracking individuals who have been dismissed for cause from police forces, or similarly provide more transparency around police conduct in a standardized national database. Police forces at all scales and in all locations know where they draw their employees and what makes policing seem like a viable choice, and they have no intention of allowing any changes that might affect that pipeline. Even though that pipeline is what brings some officers with a heavily militarized or aggressive view of policing into the profession, and brings some officers with ties to white supremacist or ethnonationalist organizations into the profession.

No matter what the reform measures that get us from the status quo to a better possible future might be, it’s clear that fewer police, police with different training and professional standards, and less policing overall are fundamental to that move.

You can offer many other defenders of the status quo some place in a better future with their current institutional economies and professional qualifications retaining some value. The best you can offer the men and women currently serving as police is some form of substantial retraining and maybe in some cases better compensation reflecting the subsequently attained expertise. To a limited extent, this is how mayors and city councils have tried, tentatively, to lightly deflect or decompose the political power of police forces in their cities, via control over top-level appointments and recruitment strategies into the top police management ranks of officers who are seen as willing to join in major reforms. It generally doesn’t accomplish much because a chief who goes along wholly with a reform program gets cut off from actual authority over the rank-and-file; the same for the next rung down of leadership. There are lateral moves available also to cops who support substantial reforms—they can become authors, they can become consultants, they can join think tanks, and so on, but it’s only a handful of people. No matter what, if real reform takes place, there will be fewer police in a relatively short timespan and that can’t just involve shutting off the intake of new police.

There may be a valid question about whether the habitus of policing can change enough to make policing less of a political obstacle to reform. We’re at the worst possible juncture now in that respect: highly militarized police forces that have operated with near-impunity for thirty years in most cities, with iron-clad bureaucratic and political alliances and a massive pop-culture infrastructure celebrating policing as the best and most valuable of professions (even shows and films that opened a window to more critical portrayals like Homicide or Hill Street Blues still treated problems with policing as “bad apples” or exceptions). Police are now trained by consultants and experts who urge them to use force as their first and last recourse regardless of what the regulations say and their unions back that message up with legal strategies. But this where we go beyond pure self-interest and into the domain of culture and everyday life, because arguably the highly militarized “shoot and then lie about what happened” approach not only isn’t working any longer in the age of ubiquitous video but is creating intense new political liabilities for police. So it is worth entertaining whether the way police think about and live their work might be shifted enough that it is no longer an obstacle that must be cleared first for reform to take place and could be more something to be skirted.

Still, the better possible future of crime and punishment in 21st Century America can’t be achieved without a sustained reduction in the political capacity of policing to maintain the status quo. That’s a political problem that has to be worked incessantly at all ends: through election of executive leaders at all jurisdictional levels, from mayors up to the President; through legal challenges from a wide range of civil society organizations to police authority, through the active witnessing of police misconduct, through social media dissemination of incidents of police misconduct, and through protests and popular action. The point of all this work is not first and foremost the delivery of the reforms that set us on the path to a better possible future, but simply the erosion of the primary obstacle to setting us on that path.

This is why the first concrete steps on that path, before we reassign some of the duties and resources presently invested in policing and incarceration, has to be reforms which immediately increase the pressure on existing police forces by increasing the risks they incur through resisting reform and reproducing the status quo. Paradoxically, to substantially transform the criminal justice system in the United States, we will first have to intensify its power in one very particular direction. That’s the next part of this series.

Image credit: Photo by David von Diemar on Unsplash