Alan Wagman is a retired Public Defender attorney in Albuquerque. He served on the city’s Police Oversight Task Force in 2013-14 and continues to work on police reform and human rights issue. He has also worked as a legislative analyst. Mr. Wagman submitted the below guest column for publication on this blog:
EDITOR’S NOTE: The opinions expressed in this article are those of attorney Alan Wagman and do not necessarily reflect those of the political blog www.petedinelli.com. Mr. Wagman was not compensated for his guest column.
“On April 27, the Albuquerque Journal ran a front-page story about the Albuquerque Police Officers Association (APOA). The APOA, it seems, has begun an advertising and public relations campaign against the city’s continuing efforts to comply with the consent decree in the Department of Justice lawsuit.
The Washington post ran a story about the nationwide failure of civilian oversight of police. The story begins and ends with extensive coverage of Albuquerque, including the problems with the Civilian Police Oversight Agency and Albuquerque’s general non-compliance with the federal court consent decree.
Both stories are important. Both stories illustrate the futility of efforts to reform policing. Not just in Albuquerque, but everywhere. The fatal flaw in both stories, though, is the failure to acknowledge the roots of American policing’s resistance to reform. To understand why reform is not working, it is necessary to examine the history of American policing: its beginnings; its development; its role today in a society with economic inequality at historic levels.
AMERICAN SLAVERY PART OF HISTORICAL ROOTS OF AMERICAN POLICING
Economic inequality has been with us throughout our history and is foundational to the United States, including and perhaps especially in the US Constitution. James Madison, often called the father of the Constitution, posited that the purpose of government is to protect the opulent minority from the majority. As instrumentalities of government, police are organized to protect the minority who have accumulated a disproportionate share of societal wealth and income. To that end, those who have been locked out of a fair share of wealth and income must be pacified. Pacification may be accomplished either by keeping people in an unfree status or by setting them against each other. In America, police have always been the front-line instrument to pacify those who are not getting fair shares.
Although policing in America has always served the core purpose of protecting the opulent minority, two separate policing traditions developed and then merged. One tradition began in the North; the other developed in the South. The Southern model – slave catching – is both the earlier and the more familiar model of the origins of American policing, so we can begin there, in Virginia.
The first Africans arrived in Virginia in 1619. The story as usually told is that these Africans were enslaved upon arrival, and when we speak of unfree people and unfree labor in his country, the general assumption is that we are speaking of enslaved black-skinned people. But in the beginning, there was no color line that made some people free and others not.
Most white people – about sixty percent – who came here before 1775 were unfree when they arrived. Some came in as indentured servants on a contract to work for a specific number of years; some came in because they were in poor houses in England, and someone had purchased their debts and therefore owned their labor for a period of time; and some came in because they were simply kidnapped off the streets of London and sent to the colonies to work involuntarily.
In the beginning, there was not much difference in status between the unfree blacks and the unfree whites. The captive Angolans sold to Virginia colonists in 1619 were likely considered to be indentured, just like unfree whites; the historical record is ambiguous about the exact status of those particular Africans. It is clear, however, that for decades there were blacks who were considered as indentured, the same status held by unfree whites.
As one might expect of people holding the same status, the unfree people congregated together. They mixed socially. They intermarried. And they rebelled together.
That rebellion together became a problem, because the unfree laborers grossly outnumbered the people who owned their labor. In the absence of police to enforce unfree status, the opulent minority which controlled society resorted to setting the unfree laborers against each other.
To this end, beginning in about 1630 and continuing for about forty years, especially in the South, colonial legislatures enacted laws to separate the status of unfree blacks from that of unfree whites. The laws restricted the movement and other activities of unfree blacks more than that of unfree whites.
Even then, it still took until 1640 – more than a decade after the first of these laws was enacted and more than two decades after the arrival of African labor at Jamestown – before we have a clear, unambiguous record of a black-skinned laborer being enslaved rather than indentured. And even then, it was because a court changed the man’s status from indentured to enslaved.
In 1640, John Punch, an indentured servant of African descent, ran away with two other indentured servants. When they were caught, a judge punished the other two – an Englishman and a Dutch man – with a four-year extension of their indenture periods. As for Mr. Punch, the judge extended the indenture period until the end of his life, making John Punch the first officially enslaved person that we know of in the United States.
In addition to imposing restrictions on black laborers of all types, elites promised unfree whites that they would eventually become eligible to purchase or otherwise own land stolen from the indigenous people of this continent. Whites also became eligible for jobs as overseers. But what was perhaps the most significant step to separate unfree and lower-rung whites from unfree blacks was to allow – and in fact, mandate – these whites to join slave patrols.
Slave patrols were mandatory for every white male from age eighteen to age forty-five. The Slave patrols were the “well-regulated militia” referred to in the Second Amendment to justify creating a right to bear arms. Privileging low-status, landless, unemployed whites to serve in slave patrols alongside the biggest landowners and the most prestigious white people in the area created a bond and an identification, a sense that whiteness set even the lowest status slave patroller apart from and against black laborers.
With this separation and opposition, there was no more congregating together across an artificial color line. No more socializing. No more intermarriage. And, most important for the elites, no more joint rebellions. Once white labor was no longer pacified by being made unfree, laborers were pacified – and social control was established, then and still – by setting non-elite white-skinned people against black-skinned people.
One other thing to note about slave patrols as forerunners of modern American policing: Slave patrols were allowed – and in fact mandated – to inflict corporal punishment upon black-skinned people they encountered out on the road without passes. Patrollers administered whippings and beatings on the spot, without court proceedings, without what we and the Constitution call “due process.”
Slave patrols, of course, ended after the Civil War, after enslaved people were emancipated. But the Thirteenth Amendment, which abolished slavery, contained a loophole, one which Southern white elites used to reverse emancipation. And policing was key. The loophole in the amendment stated that slavery could be imposed “as a punishment for crime.”
BLACK CODES IN THE POST CIVIL WAR ERA
To take advantage of this loophole, Southern white elites passed so-called Black Codes throughout the South which made it illegal for black people to be unemployed or to be out in public with no money. Under these laws, nominally free black people could either submit to whatever terms an employer imposed or take advantage of “freedom” and quit to seek employment elsewhere, risking arrest.
Police were all too ready to arrest any black person who had left a job, who could not find a job, or who had no money. Once arrested, African-Americans were re-enslaved, “as a punishment for crime.” Southern states, counties, and towns sold enslaved labor to the cotton and sugar plantation owners from whom they had ostensibly been emancipated. Northern-owned concerns like US Steel purchased enslaved labor as well.
For decade after decade, police arrested laborers, counties enslaved laborers and sold their labor. It was not until 1940 that the United States Supreme Court made the practice more difficult by ruling that authorities could not arrest and convict people for the crime of not having money. Nonetheless, the license plates on cars are still produced by enslaved laborers.
ENGLISH POLICING INFLUENCE OVER THE NORTH
Unlike the home-grown policing tradition of the South, the policing tradition which took hold in the North began in England in 1829 with the passage of the Metropolitan Police Act. The Act allowed the formation of city police forces. Sir Robert “Bobby” Peel, from whom London police get the name “Bobbies” formed the London police force – but not to combat crime.
London at the time was flooded with unemployed – and more important, unemployable – displaced rural people who had lost their lands as agriculture became concentrated in the hands of fewer, wealthier landowners. The displacement followed the Enclosure Acts, under which so-called “common land” was sold off – often at reduced prices – to richer landowners. Peasants were barred from their traditional use of the commons. They could no longer graze cows or otherwise maintain their lifestyle and existence. The dispossessed rural folk, having nowhere to go, went to London.
At the same time, in urban areas, skilled tradesmen were losing their livelihoods to industrialization. Standardized production in factories made skilled trades and individual specialists unnecessary. The newly obsolete tradesmen joined rural folk in the London slums.
Both rural folk and tradesmen were used to working on their own schedule and taking care of their own chores and necessities when they saw fit to do so. Their habits did not change in the urban slums. With no need to get up in the morning, they stayed up late. With no need to be quiet and sober, they were drunk and rowdy.
This was a problem for London’s growing industrial economic power and the elites behind that power. Rowdy drunks who partied late into the night kept shift workers awake. The loss of sleep reduced workers’ productivity and cut into the factory owners’ profits. Equally bad for the industrial bosses, rowdy drunks who did not live by set schedules were not suitable to fill the growing number of industrial job openings. Until they were controlled and regimented, they could not serve as an excess labor pool to enable employers to keep wages low.
Enter Sir Robert Peel and the newly-created London police. The mission was not to stop violent crime. The mission was not to stop property crime. Superficially, the mission was to keep the public peace – meaning to keep things quiet enough so that people with jobs could sleep at night and be productive in the daytime. The corollary mission, though, was to create by force a population capable of being an industrial work force, full of potential employees who could both fill jobs and be set against those who already had jobs.
FIRST AMERICAN MUNCIPAL POLICE FORCE
Nine years later, in 1839, Boston created the first American municipal police force on the London model. Its mission was to control rowdy, drunken, Irish immigrants and transform them into an industrial work force, complete with excess labor to set against those already employed. Once again, this was less about crime than it was about making people conform to the needs of the elite owners of industrial production.
This became a pattern in Northern cities. There were no slave patrols, because by the time formal policing began, Northern states had abolished slavery. Unlike in the South, policing was not racialized by skin color; until the “Great Migration” of African Americans in the twentieth century, there was not a significant African-American population in the North. Rather, policing in the North set first generation immigrants against newly-arrived immigrants.
The first police in the North were Anglo-Saxons, who policed newly-arrived Germans. A generation later, first-generation German-Americans policed newly-arrived Irish immigrants. Still another generation later, first-generation Irish-Americans policed newly-arrived Poles and Italians and Jews. Each immigrant group, as it moved up into the socially-constructed definition of “whiteness,” gained that status in part by policing the next immigrant arrivals, who were not yet considered to be “white.”
By the latter part of the nineteenth century, Northern police added to their roles and duties. They served as enforcers – that is, hired thugs – for corrupt politicians. Police also served as strikebreakers, beating and arresting union members or workers who dared to go on strike or try to organize unions. (For example, the original mission of the Pennsylvania State Police was to suppress labor disputes.) Essentially, police openly and brazenly did the bidding of corporate and financial elites, And, as with slave patrols in the South, they were empowered to mete out extrajudicial corporate punishment.
A NEW CHAPTER OF AMERICAN POLICING
In the twentieth century, the Great Migration of African Americans from the South to the North ushered in a new chapter of American policing. Beginning in 1916, large numbers of black Americans came north, looking to escape destitution and Jim Crow. When white Americans arrived home from World War I, they found a new “immigrant” community in place, competing for jobs.
Whites responded in 1919. In that year alone, there were over 60 race massacres in cities across the United States – North, South, East, West, virtually everywhere. African American homes were burned; African American businesses were destroyed; hundreds of African Americans were murdered. Police response ranged from doing nothing to providing weapons to marauding whites to disarming and arresting blacks who were trying to defend themselves.
Throughout the 1920s, largely because of Prohibition and the growth of organized crime, police corruption grew and was perceived to be a problem. In response, August Vollmer, Berkeley, CA police chief, led a movement to “professionalize” police. This included training, modern equipment, widespread use of police cars, etc. In addition, Vollmer created university curricula for training police and wrote police manuals that are still in use today.
Although that sounds good, August Vollmer’s ideas about policing grew out of his experience in the Philippines during and after the Spanish-American War. During the war, the US allied with Filipino freedom fighters, who were fighting Spain for independence. After the US took the Philippines from Spain and reneged on promised Philippine independence, the rebels resumed their fight, this time against the US. Vollmer learned how to infiltrate Filipino villages, how to use extreme violence to exert control, and how to use torture to extract information. As well, this father of modern policing considered African-Americans to be a degenerate race, genetically disposed to criminality.
A new chapter began after World War II, as American police forces continued to reorganize and professionalize themselves. The Los Angeles Police Department reorganized itself explicitly to control the city’s growing African-American population. Orlando Wilson, Chicago Police Chief Orlando Wilson, a student of Vollmer, went before the Chicago City Council every year throughout the 1960s to request an increase to the police budget. Each time, he explicitly said that he needed the money because the African-American population was growing. Chicago City Council never denied Wilson his requested budget increase.
1960’s CIVIL RIGHTS MOVEMENT
From 1964 to 1968, racial rebellions broke out in cities across the country – Harlem, LA, Newark, Detroit, DC, Baltimore, and more. These rebellions differed from the racial massacres of earlier decades. These were not invasions of white people into black neighborhoods. These were not armed white people killing black people. These were uprisings of black people against the oppressive institutions in their own neighborhoods. In response, heavily-armed police, national guard troops – and in some cases regular US army troops – invaded African American neighborhoods and killed people to protect property.
The rebellions of the 1960s generated three policing responses:
(1) In 1965, Congress passed and President Lyndon Johnson signed the Law Enforcement Assistance Act, which accelerated the trend toward increasing militarization of policing.
(2) President Richard Nixon declared a “War on Drugs.” This was not because there was a drug problem serious enough to justify a “war.” This was explicitly aimed at undermining white anti-war and black anti-racist political activity and potential joinder of the movements.
(3) Beginning with George Wallace and continuing through Richard Nixon, Ronald Reagan, George H.W. Bush, Bill and Hillary Clinton, Joe Biden, and more others than can be counted, calls for “law and order” were stand-ins to divide white people from black people.
All three of these trends use what are now popularly called “dog whistles” as proxies for race and race-based policing. As the late Lee Atwater, top political strategist to George H.W. Bush put it, “You start in 1954 by saying ‘N****r, n****r, n****r.’ By 1968 you can’t say ‘N****r.’ That hurts you. It backfires. So you say stuff like forced busing, states’ rights and all that stuff and you get so abstract. Now you talk about cutting taxes and these things you’re talking about are totally economic things and a byproduct of them is, blacks get hurt worse than whites. … So anyway you look at it, race is coming on the back burner.” Although Atwater did not directly invoke the need for police in his explanation, he created the “Willie Horton” ad in the 1988 presidential campaign to stoke white fears of black people
POLICING IN AMERICA TODAY
Today, with or without dog whistles, police maintain a choke-hold on people of color and low-income communities. To this end, arrest warrants are an important new weapon in the policing arsenal. The process for generating arrest warrants is as follows: Police officers give out citations like candy, A ticket could be for a parking violation, for a broken tail light, for jaywalking, for making too much noise, for rolling through a stop sign, for an expired license tab, for air freshener hanging from the rear-view mirror, or for [fill in the blank]. If the person does not pay the ticket, because they can’t afford it, or they don’t make it to court, because they’ll lose their job, a court will issue an arrest warrant. But that’s just the beginning.
Once a warrant is generated against a person, nothing happens until police identify that the person has a warrant. Because neither police nor anyone else can tell who has a warrant and who does not, police stop anyone they choose to stop in order to check for warrants. Police do not have to see any wrongdoing or believe any wrongdoing is taking place. Police can stop anyone, anytime.
LAW ENFORCMENT HAS POWER TO STOP PEOPLE FOR NO REASON
Although it seems as though this should be unconstitutional it is not. In 2016, the US Supreme Court ruled it is Constitutionally permissible for police to stop people for no reason other than to see if they have warrants. Police do not have to suspect that a person is committing a crime or doing anything wrong. Police can stop anyone, whether it’s at random, or whether police are specifically targeting that person or that person’s neighborhood. Of course, this police power is only used in certain neighborhoods and on certain people.
How effective have police been at generating warrants?
Nationwide, not counting what are likely a far greater number of arrest warrants for unpaid traffic citations or parking tickets, there are 7.8 million outstanding warrants for petty offenses.
Worse, these warrants are not spread evenly across the population. In predominantly African American Ferguson, MO, with a population of 21,000, 16,000 people have outstanding warrants. Nine percent of adult Californians have outstanding warrants. Fourteen percent of New York City residents have outstanding warrants. Eleven percent of Pennsylvanians. Cincinnati, OH, population 300,000, has 100,000 outstanding warrants.
How many people do police stop for a warrant check?
In a single year in New Orleans, out of 60,000 arrests, 20,000 were for warrants for minor infractions, including unpaid tickets. In Newark, NJ, police stopped 52,235 pedestrians in a four-year period and ran warrant checks on 39,308 of them. In 92% of those 52,235 stops, Newark police officers had no legal reason for stopping the pedestrians other than wanting to check for warrants. There was no suspicion of crime; no suspicion of wrongdoing. It is difficult to argue that the reason for these warrant checks is anything other than to keep people unfree and under control.
It’s not just a national problem. In Bernalillo County, there are 65,000 outstanding warrants, about one warrant for each ten residents. It is eminently safe to assume that these warrants are, not evenly distributed across the population. We know in which neighborhoods people are getting those warrants. We know how Albuquerque police and the Bernalillo County Sheriff’s Office treat people in the neighborhoods where people are most likely to have warrants and are most likely to fear being stopped for a warrant check, lest they had not paid a jaywalking fine.
STOPPING CRIME NOT PRIMARY PURPOSE OF LAW ENFORCEMENT
It is important to understand that this police activity is not primarily focused on stopping crime. It is focused on either keeping labor and laborers unfree or setting people against each other. It is focused on creating a vested interest among “white” people to believe that there is criminality, there is crime, and there is danger from crime in low income neighborhoods and in neighborhoods with people of color. Creating fear is the best way to keep people from working together to solve mutual problems.
It is also important to understand that police officers in general come from the newest entrants to “whiteness” or aspire to that entrance. Police officers who are people of color do not behave differently than police officers who are white – because policing is a path into what society defines as “whiteness.” And the path into whiteness is to put your foot down on – or put your knee on the neck of – the lowest stratum of society. This is the role that historically police have been created to fulfill. The result is, as US Supreme Court Justice Sonia Sotomayor put it, if you are a low-income person or a person of color:
“You are not a citizen of a democracy, but the subject of a carceral state, just waiting to be cataloged.”
Does this “cataloging” protect us in any real sense? What happens when policing stops? For seven weeks in late 2014 and early 2015, New York City police conducted a work stoppage. If dispatched to a location to deal with a situation, police would drive to the location but not get out of their patrol cars. They went where they were supposed to go but did nothing when they got there. They gave no tickets for jaywalking, vomiting on the sidewalk, being homeless, etc. They made few if any arrests.
What happened? Serious crime – robberies, domestic abuse, violence in general – went down. People double parked more. People ran more stop signs. But overall, neighborhoods became safer and more peaceful. And once the rate of major criminal activity went down, it stayed down, but only until the police went back to work.
LACK OF POLICING CAN CAUSE CRIME TO GO DOWN
In 2017, social scientists studied what happened, looking for why this occurred. They tested numerous hypotheses. Of all the hypotheses they tested, only one stood up. Serious crime had gone down not in spite of the lack of policing but because of the lack of policing. Crime went down because police stopped stepping on people in low-income neighborhoods.
Crime went down when people stopped losing their jobs because they got arrested for missing a court appearance for a petty violation. Crime went down when people did not lose their homes because they went to court instead of to work and lost their jobs as a result. Crime went down when people were not being harassed and put under stress, when households did not dissolve into violence because of the stress. Families stayed together because they were not stressed. And because residents’ stress level was lowered and people were not operating at or beyond the breaking point, neighbors were able to help neighbors.
The effect of policing has been to make it as difficult as possible for the bottom strata of society to look beyond the next five minutes, to work together, to form alliances, to pool resources, to evaluate how they are being kept down, why they are being kept down, who is keeping them down, and what they can do about it. This has been the effect of policing because this is what policing, from the slave patrols to the Municipal Police Act, has been designed to do.
DEPARTMENT OF JUSTICE CONSENT DECREES ARE MISPLACED HOPES
This is why hopes resting upon civilian oversight and civil rights lawsuits brought by the US Department of Justice are misplaced hopes. If by some miracle every police force in the country were to come into compliance with the US Constitution, the real problem would remain:
**Police would still flood low-income neighborhoods and neighborhoods of color;
**Police would still over-enforce petty offenses in those neighborhoods;
**People in those neighborhoods would still miss court dates or not pay fines for those petty offenses;
**People in those neighborhoods would still accumulate warrants.
**Police would still check for warrants while people in those neighborhoods are walking down the street doing nothing wrong;
** Police would still arrest people in those neighborhoods for those warrants.
Then people in those neighborhoods would lose their jobs, homes, families; people in those neighborhoods would still crack under the stress on individuals and communities; peaceful people, stressed beyond their limits, would become violent. And people in better-off neighborhoods would continue to increase police budgets, because, clearly, there is something wrong with the people in those neighborhoods, and we need the police to protect us from them.
Essentially, civilian oversight and the Department of Justice seek to moderate police imposition of extrajudicial corporate punishment, a practice rooted in American policing since its beginnings. Yes, it’s something. But we should not fool ourselves that it is nearly enough.
The alternative is to create a society organized to give everyone a full share, to serve and meet the needs of all of its people rather than just the needs of Madison’s opulent minority. A society where the levers of power are controlled by all of its members.
We won’t get there all at once, but we will never get there if we do not acknowledge the history and role of policing in our country and why police, no matter how much “reform” is instituted, will not solve our problems. As James Baldwin said:
“Not everything that is faced can be changed. But nothing can be changed until it is faced.”
Instead of allowing institutions to separate us – and police are on the front-line of creating that separation – we must create institutions which bring us together. It will not be easy. But one thing is clear: As long as we think fixing the police is the answer, we’re asking the wrong question.