The undelivered dream: Policing, administrative rules and social equity

Abstract

The overly aggressive use of force by police on African Americans illustrates a fundamental dissonance within the American polity. The ideal of justice and liberty juxtaposed with the reality of suffering and death at the hands of frontline law enforcement. This paper considers the relationship between administrative rules, policing, and racial disparities in the application of the use of force in the United States through the lens of social equity. The article details the racialized nature of use of force and suggests a possible way forward for administrators to address the unequal application of force by police in their encounters with African Americans. Specifically, the creation of processes that limit discretion related to the use of force, the establishment of uniform licensing standards, and the implementation of a database that tracks all incidents when force is used.

Keywords:

• Social equity
• policing
• administrative rules

The relationship between the African American community and law enforcement has long been a complex one in the United States, particularly as it relates to the utilization of force by law enforcement personnel. In communities of color there is a perceived bias as relates to law enforcement. Black and Brown populations typically anticipate that their interactions with law enforcement will be negative. This perception owes its origins to the history of policing in African-American communities. In the United States, police departments are the institutions primarily entrusted with law enforcement responsibilities and thus are keepers of the social order. This relatively innocuous statement has profound implications in understanding the relationship of African Americans vis a vis the criminal justice system. While the use of force is essential to the maintenance of the social order (Alpert & Smith, 1994), policing in African American communities, in the United States, has a long history of negatively impacting those communities. When we think about African-Americans in this country, prior to and up to the founding, a racial hierarchy was established in the gross treatment of nonwhite populations and the establishment of a slave labor system that was restricted to Americans of African descent. In addition, all 13 colonies deputized Whites to police African Americans and a differential form of justice was meted out upon people of color. Under the Constitution of the United States, African Americans were considered property, constituting three-fifths of a person, with few rights, protections, or liberties.

This denial of rights, protections, and liberties for African Americans was in stark contrast to the ideals embodied in the United States Constitution founded on the Lockean ideals that the purpose of government was to guarantee individual rights and liberties. This basic moral paradox and the ongoing challenge this paradox represents provides the context for this narrative.

Administration in the United States has been shaped and guided by historical narratives that have, with respect to policing, impacted African Americans in a decidedly negative manner. During the colonial era and prior to the Civil War, police enforced laws in both Northern and Southern states that restricted the freedoms of unenslaved African Americans in virtually every aspect of life; ranging from their capacity to vote, to bear weapons, to work, to attend schools, to become literate, to own property, and to travel in public spaces (Alexander, 2020; Steinmetz, Schaefer, & Henderson, 2017).

After the Civil War, laws in both the North and the South continued to restrict and impede the liberties of African Americans. In the post- Civil War environment, law enforcement arrested African Americans for minor violations, which in turn led to exorbitant fines, long prison sentences and virtual re-enslavement on former slave plantations (Alexander, 2020). Thus, public administrators were central to enforcing racial restrictions intended to discipline those seen as a danger to the state. This is consistent with research that concluded police violence is used to control racial and economic classes deemed threatening to the existing social order (Harring, Platt, Speiglman, & Takagi, 1977). Harring et al., 1977 also documented the willingness of the state to use force as part of a broader mechanism of social control in communities of color. Due to our nation’s sordid racial history, white supremacy and racial subordination have become embedded within our social systems and institutions particularly as it relates to policing.

As a consequence, one of the goals of the Civil Rights Movement was to ensure that the application of the law was enforced fairly; particularly as it relates to the use of force (Simon, Ben, Beatrice, Ian, & Jonny, 2016). This draws direct parallels to the current Black Lives Matter Movement where those same communities of Color advocate for fair treatment by law enforcement.

Every community resident should be able to live, work, and travel confident in an expectation that interactions with police officers will be fair, operate consistent with constitutional norms, and be guided by public safety free from bias or discrimination. Unfortunately, today, too many communities are not confident in that expectation and do not trust fair police-community interactions. Communities have demanded reforms to foster better community-police relations and to prevent unjustified and excessive police uses of force.¹

Context

A contemporary discussion of use of force policies are shaped by the Black Lives Matter movement (BLM). The BLM movement is intrinsically tied to the criminal justice system. The movement would likely not exist if we did not see the disparities in the American criminal justice system for Black Americans. Some of the Black Americans who died at the hands of police officers in the United States include: Amadou Diallo, Sean Bell, Walter Scott, Sandra Bland, Alton Sterling, Philando Castille, Tamir Rice, Eric Garner, Freddie Gray, George Floyd, Breanna Taylor, Ahmaud Arbery, Andre Hill. Their names represent only a handful of such cases since 1999, when Diallo, an unarmed man standing in a New York City doorway, was gunned down by officers who erroneously thought he had a gun. Protest movements highlighting law enforcement's tendency to be overly aggressive when dealing with Black men have been a staple of the American polity since 2014. This post-Ferguson paradigm illustrates the necessity of administrative action and reform with respect to policing. African Americans are more than twice as likely to be killed by police than are persons of other racial or ethnic groups; even when there are no other obvious circumstances during the encounter that would make the use of deadly force reasonable (Fagan & Campbell, 2020). Violent encounters with the police have profound effects on health, neighborhoods, and life chances (Desmond, Papachristos, & Kirk, 2016; Sewell, 2017). Moreover, the racial disparities inherent in the application of force by law enforcement undermine our collective democratic legitimacy (McCandless & Vogler, 2020). Through the lens of administration, very few scholarly articles examine normative administrative theory in a manner that incorporates considerations of race into recommendations regarding ethical practice (Alexander & Stivers, 2010). This article considers how administrative rules at the local law enforcement level, informed by social equity principles may reduce the number of fatal shootings of African Americans by local law enforcement.

Social equity

Social equity, as applied in the United States, is at its core an examination of society and culture at the intersection of public policy, power, and race. Social equity has been defined as treating individuals from different social groups regardless of their gender, race, ethnicity, in a just manner (Charbonneau, Riccucci, Van Ryzin, & Holzer, 2009). As it relates to administration, social equity is one of the core pillars of administration, along with economy, effectiveness, and efficiency. Some public administration scholars have argued that social equity is underdeveloped compared to the other three pillars of the discipline (Frederickson, 2010; Norman-Major, 2011; Rosenbloom, 2005). However, in recent years (Berry-James et al., 2020; Dooley, 2020; Lopez-Littleton, Blessett, & Burr, 2018; McCandless & Ronquillo, 2020; Riccucci, 2019; Rivera & Ward, 2017) the growing scholarship surrounding social equity has significantly advanced the relevance of the fourth pillar of public administration.

The National Academy of Public Administration Panel (2000) on Social Equity defines social equity as “the fair, just and equitable management of all institutions serving the public directly or by contract, and the fair and equitable distribution of public services, and implementation of public policy, and the commitment to promote fairness, justice and equity in the formation of public policy.” Social equity scholarship has been useful in understanding issues related to justice in public administration (Frederickson, 2005) and according to Gooden (2010) social equity has largely focused on racial inequalities. More broadly, it is inherent for practitioners to apply social equity principles in a just manner (Hart, 1984) so that everyone can have the same prospects for protection from adversity in life (Johnson & Svara, 2015). The racialized disparities relative to use of force by frontline police are inconsistent with these social equity principles.

The outcomes of these racialized constructs enshrined in the United States Constitution, at its founding, have produced artifacts that are pervasive in our system of governance to the extent that it has racialized public policy decision-making that has resulted in the uneven application of public policy outputs. This is central to a discussion of social equity and policing in that race is a social construct that is not empirical nor objective. However, what race as a construct has achieved is to ensure, in both law and practice, the unequal application of basic civil rights for African Americans by law enforcement.

Cole (1999) writes about race and class in America. A main argument of the book is “that while our criminal justice system is explicitly based on the premise and promise of equality before the law, the administration of criminal law-whether by the officer on the beat, the legislature, or the Supreme Court-is in fact predicated on the exploitation of inequality.” (Cole, 1999, p. 5). Cole also argues that these inequalities are built into the structure and system. He also states: “Because criminal law governs the most serious sanctions that a society can impose on its members, inequity in its administration has especially corrosive consequences…The perception and reality of double standards also contribute to the crime problem by eroding the legitimacy of the criminal law and undermining a cohesive sense of community.” (Cole, 1999, p. 11).

The racialized disparities produced in the United States, according to social equity, are profound, systematic, and cumulative (Gooden, 2015). In practical terms, this means that racism is difficult to combat through formal rational legal methodologies based around notions of race neutral policy outputs with formalized implementations that do not take into account issues related to equity and prior discriminatory practices. Ultimately race neutral policies perpetuate the status quo in United States public policymaking by maintaining White privilege. Operating within that construct, social equity has emerged as a paradigm that offers insights and possible administrative solutions as it relates to use of force policies in the United States.

Critical race theory

Critical Race Theory (CRT) is a theoretical framework found in the social sciences centered around the application of critical theory. CRT is an effective analytical lens to understand institutional phenomena associated with policing in the United States. CRT draws from a broad literature in the areas of ethnic studies, law, sociology, education, public health and public administration (Aguirre, 2000; Dooley, 2019; Ford, 2016; Harris, 1993; Ladson-Billings, 1998; Ladson-Billings & Tate, 1995; Powell, 2007; Tate, 1997; Viruell-Fuentes et al., 2012). CRT is at its core an examination of society and culture at the intersection of public policy, power, and race (Bell, 1995; Dooley, 2019; Ladson-Billings & Tate, 1995). Central to CRT is the idea that race is a social construct that is not empirical nor objective. Further, the social construct of race has no biological or genetic derivative. Rather, race is a construct designed solely to advantage a specific population at the expense of all others from the founding of the United States to the present. This racial construct creates a society with vast inequalities in the application of public policy. These inequalities are deeply embedded in our institutions.

The outcomes of these racialized constructs have produced artifacts that are pervasive in our system of governance to the extent that it has racialized public policy decision-making (Delgado & Stefancic, 2017; Dooley, 2019). Thus, every institution derived from the rational-legal framework constructed by the United States’ Constitution is racist. The ideal government policy is one that is equitable and does not benefit one demographic over another. Citizens have rights and privileges that should be respected and acknowledged by public servants (Blessett, 2018). Through the prism of CRT, the misuse of force by law enforcement on Blacks in the United States provides appropriate context and informs this analysis.

Literature review

In a review of the literature on the use of force in the United States, issues related to law enforcement interactions with the public become clear. Nearly three-quarters of United States residents 16 and older, described their encounter with law enforcement to be excessive (Hyland, Langton, & Davis, 2015). Among the population of the United States residents that experienced force during their most recent contact with police, 87% did not believe the police behaved properly (Hyland et al., 2015). Moreover, the use of excessive or unnecessary force is a major problem (Prenzler, Porter, & Alpert, 2013). Use of force describes how much force officers use when interacting with civilians. The level of force can range from physical restraint to deadly force.

In an examination of minority group interactions with law enforcement, Motley and Joe (2018) examined self-reported accounts of exposure to and perceptions of police use of force among Black and White ethnic groups by sex and income level. They found that race, gender and income were significant indicators of increased risk of force utilization by law enforcement. Specifically, for Black residents, being male and having an income under $20,000 significantly increased the risk for exposure to police use of force during a street stop. Further research found that Black boys as young as 10 are viewed as threatening and are more likely to be mistaken as older and have an increased likelihood to face police violence (Goff, Jackson, Di Leone, Culotta, & DiTomasso, 2014). In another study, researchers examined how beliefs about race and racial inequality influence whites’ attitudes toward the use of force and found that racial resentment impacts White attitudes on policing. Whites with higher levels of racial resentment² are more supportive of the police using force toward citizens than those with lower levels of racial resentment (Carter & Corra, 2016). Additionally, the impact of racial resentment appears to be increasing over time (Carter & Corra, 2016). In their analysis of the role of officer background characteristics, arrest activity, and job characteristics such as patrol area and shift assignment, (Brandl & Stroshine, 2013) found that a small proportion of officers were responsible for a large proportion of force related incidents.

Another study found that cognitive biases about the dangerousness of racial minorities can contribute to disparities in the use of force by law enforcement (Mears, Craig, Stewart, & Warren, 2017). Richardson (2014) found that Black men are associated with violence and criminality and that it was cognitively more taxing to associate whites with criminality. Along these lines, Kahn Steele, McMahon, and Stewart (2017) used a linear mixed-effects model to determine that Black and Latino suspects receive more force in the beginning stages of law enforcement interaction. Another study found that officers’ attention will be drawn to Black men more readily than white men, even if they are acting identically and even if officers are not engaged in conscious racial profiling (Eberhardt, Goff, Purdie, & Davies, 2004). In bivariate models, the odds of hard-empty hand control and intermediate weapon use were significantly higher among White–Black dyads compared with White–White dyads (Jetelina, Jennings, Bishopp, Piquero, & Gonzalez, 2017). This is consistent with Critical Race Theory in that formalized structural reforms and changes associated with policing practices are necessary to impact policing outputs.

In a study that examined the effects of officer and suspect race in predicting police use of force and suspect resistance, researchers found that white officers are more coercive toward Black suspects, but Black officers’ force usage is unaffected by suspect race (Paoline III et al., 2016). In an examination of whether white police officers were more likely to use lethal force on minority suspects (Menifield, Shin, & Strother, 2019) found that while minority suspects are disproportionately killed by police, white officers appear to be no more likely to use lethal force against minorities than nonwhite officers. This supports earlier research that found having more diversity among police departments does not significantly impact use of force outcomes (Friedrich, 1980).

Taken together these findings suggest institutional racialized bias as a factor governing use of force policies. In the face of institutional bias, are there policies, procedures that might help to ameliorate its impact? According to Wilson (1978) the formal structure of an organization can create predictable patterns of police behavior. This leads us to a necessary discussion related to how changes to the formal structures of police departments might lead to changes in the actions of front-line implementers relative to the use of force.

I theorize that racial disparities in the use of force by police are driven by institutional level policies and that population diversification of law enforcement will not remedy these racial disparities. This is consistent with Smith (2003) who in their study found that police force personnel composition are not significant predictors of police-caused homicides (Jennings & Rubado, 2017; Smith, 2003). Further, judicial actions advocated for will at best be less than optimal in resolving the current crisis. African Americans have found few remedies in the courts relative to excessive force used by police. This has been due to the Court's interpretation of laws governing use of force doctrine. In Graham v. Connor, 490 U.S. 386 (1989), the United States Supreme Court found that a police officer’s use of excessive force must be seen in the context of what reasonable officers would do in the same situation, given the danger and stress of police work. Specifically, if an officer has an objectively reasonable fear of an imminent threat to his life or the life of another, that police officer is justified in the use of deadly force. Since studies have shown that police view African Americans as threatening (Mears, et. al., 2017; Richardson, 2014; Kahn et al., 2017; Eberhardt et al., 2004) almost any use of force in any situation by law enforcement can be legally justified. Additionally, the legal standard detailed by the court's interpretation of qualified immunity relative to the reasonable person standard for civil cases³ has the practical effect of barring African Americans from obtaining justice in the courts. In the absence of legal remedies, it falls to administration.

Administrative practice and responsibility

Administration has a role to play in addressing the racial disparities related to policing and the use of force. Administrative rules have traditionally been a mechanism to manage behavior within an organization. While police organizational structures demand strict bureaucratic controls; the nature of policing by front-line law enforcement necessitates a high degree of discretionary latitude (Johnson & Vaughn, 2016). This dissonance between command-level, top-down internal bureaucratic control structures juxtaposed with high levels of discretionary latitude when law enforcement interacts with the public creates opportunity for racial bias to impact decision making relative to the use of force by front-line police. While discretion is a prerequisite for law enforcement interactions with citizens, that discretion is not absolute, particularly as it relates to the use of deadly force. Citizens must be afforded due process before being deprived of their liberty.

There is a role for administration in this area via the implementation of a didactic process that specifically involves widespread reform of use of force policies across the country. CRT is a useful framework to understand the “need for” and “nature of” reform in policing in the United States. Works by Rousseau, Locke, Hobbes, and Kant provided the early fuel for arguments establishing that a government’s protections of certain inalienable liberties and equalities were necessary for that government’s legitimacy (Guy & McCandless, 2012). According to Alexander and Stivers (2010) it is imperative that administrators adopt an “ethic of race” for public administration, which involves both an acknowledgement of past tragedies perpetrated on African Americans and a recognition of possible goods that can be pursued to move ever forward toward the embodiment of the aspirational principles contained in the Constitution. The realization of those principles in policing could be accomplished through the utilization of administrative rules. These rules have significant effects on the frequency and nature of police use of force (Fyfe, 1988; White, 2000). Here, reform relative to administrative rules governing use of force by law enforcement could have a positive impact through the creation of processes that limit discretion related to the use of force, the establishment of uniform licensing standards, and the implementation of a database that tracks all incidents when force is used. In sum, these reforms could prove useful by holding bad actors accountable.

Police departments should amend their use of force policies in a number of areas to restrict the degree of discretion available to front-line police officers. This is consistent with research that examined the use of administrative rules to manage officer discretion (Chanin, 2017). This process allows for organizational power to shift away from street-level officers such that these officers have much less control over their interactions with the public including, when and how to use force (Chanin, 2017). Historically, the implementation of more restrictive use of force administrative rules, by a small cohort of police departments, in the 1970s and 1980s in response to public outcry over the shootings of unarmed citizens, led to overall decreases in use of force by the police, and a reduction in the number of fatalities (Fyfe, 1988; Walker, 1993; White, 2000). This research demonstrated that law enforcement were in no greater danger due to those restrictions (Walker, 1993). These more restrictive administrative policies related to the use of force had the added benefit of reducing the racial disparities related to use of force (Terrill & Paoline III, 2017).

A second reform, would entail the establishment of a universal licensing standard at either the state or federal level for law enforcement with a set of protocols related to knowledge, procedure, and physical fitness. The rationale for licensing in an occupational field is to promote and protect the general health and safety of a population and to reduce the variation of services delivered (Kleiner, 2011). The application of uniform licensing standards for policing promotes professionalism which consists of problem solving made rigorous by the application of scientific theory and technique (Schon, 1983). Professionalism, in this context, can be viewed as the application of knowledge to specific cases in a systematic institutionalized way. This is consistent with the concept of the “professional citizen” which is characterized by the ethical obligations of the public servant to establish and maintain horizontal relationships with their fellow citizens (Cooper & Gulick, 1984). As enforcers of the collective social order having a uniform set of standards would enhance the level of professionalism for law enforcement personnel.

A third reform would involve the creation of a database that would be frequently updated that documented all incidents of the utilization of force by law enforcement relative to police interactions with civilians. This would promote transparency and provide a better overview of how law enforcement interactions at the local level impact the community. Further, the database would establish an accurate estimate of how often police officers in the United States use their firearms against citizens, particularly Blacks (White, 2016). A national database would also allow researchers to delve with far greater detail into issues surrounding citizen race and the use of force. For decades, there have been clear racial disparities among citizen encounters with police. A national database would assist in addressing whether or not those disparities equate to racial discrimination (White, 2016). Further, the database could serve as a prospective monitoring system for emergent racial discrimination (Kane, 2007).

Conclusion

In the context of a conversation on race, culture, and policing, we must recognize the plight that at-risk populations in general, and African-Americans in particular face in the United States with respect to policing. There are few things more important than the application of the tenets of fairness by those we trust to safeguard our communities. We are all a part of a great society, this American experiment.

Ultimately, these are issues of justice. We live in a rational legal society that contains, in theory, equal parts liberty and equal parts justice. In the preamble to the United States’ Constitution, this concept of justice was the first principle detailed:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

Administrators have failed to acknowledge that patterns of discretionary judgment contribute to the continuance of racial bias (Alexander & Stivers, 2010). Nowhere is this more concerning than in policing. In a just society the equal application of the law is fundamental. There should not be a distinction of results relative to the interaction of anyone with law enforcement. Whether you are White, Black, Christian or Muslim, citizen or immigrant, male or female the interaction should be the same. The police must adhere to the laws that they are sworn to protect or they must be held accountable. This accountability then transcends mere legal accountability and is intrinsically linked to justice. This concept of justice within the field of administration is informed by the constructs of both moral and ethical accountability. the equitable public administrator has both the duty and the obligation to deploy their efforts on behalf of the less advantaged (Hart, 1974). A focus on procedural rules by police departments to limit discretion in their use of force protocols, coupled with licensing standards, and the creation of a national use of force database; offers possible solutions to this ongoing tragedy. For Blacks, all too often, the race of the individual is an additional burden in their interactions with law enforcement. This has to change.

Additional information

Notes on contributors

Ty Price Dooley

Dr. Ty Price Dooley is an Associate Professor at the University of Illinois Springfield. He holds a Ph.D. in Public Policy from the University of Arkansas, a Master’s Degree in Political Science from the University of Memphis, and he received his Bachelor’s Degree from the University of Central Arkansas. Dr. Dooley was honored with a Center for Online Learning Research and Service Faculty Fellowship in 2014 for his research in the area of human capital development. Dr. Dooley’s research has been featured in the Journal of Public Management & Social Policy, Youth & Society, Teaching Public Administration and e-Mentor. He is an active member of the American Political Science Association, American Society for Public Administration, and a former Southern Regional Education Board and Benjamin Lever Doctoral Fellow. Dr. Dooley has appeared as a political analyst on the Arkansas Education Television Network’s Arkansas Week and Minority Matters. Dr. Dooley’s research areas include: social justice, critical race, social equity and community development.

Notes

1 Catherine E. Lhamon, US Commission on Civil Rights’ report, (2018). Police Use of Force: An Examination of Modern Policing Practices. Briefing Report, Washington, DC.

2 Scholars (Bobo & Tuan, 2006; Blumer, 1958; Carter & Corra, 2016). have defined racial resentment as historically produced prejudiced perceptions of marginalized racial groups used to assist whites in maintaining their positional status in the social hierarchy.

3 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)