Thursday, October 5, 2017

Selection Bias: The Character of Policing on the Street

By Professor Eric Miller 

This post originally appeared on Prawsblawg, where Prof. Miller is guest blogging.

Criminal procedure scholars tend to think of policing in terms of the way the Constitution permits or restricts certain police practices; and more narrowly, in terms of what rights may be asserted by criminal suspects against the police. But most of what counts as policing is low visibility: out of sight of the courts that could enforce these constitutional regulations. Of much more importance to policing are the laws and policy decisions about who gets to be a police officer, and what training they receive. The selection and training issue has become especially pressing with he “rise of the warrior cop,” and the ways in which the discussion of policing selection and police training has been insulated from public and political scrutiny.

The core case on police selection is Washington v. Davis, which is often thought of as a Title VII and civil rights case. Davis was, however, a police selection case seeking to diversify the police force of Washington, D.C. And hidden behind Davis is a story of who gets to control the standards used to train the D.C. Metropolitan Police Department. By 1976, African American police officers were making strides in admittance to the department; by 1978, the Chief of Police was African American, as were the majority of the officers. Nonetheless, just two years earlier, Davis had argued that the police test was having a discriminatory impact; the Court sided with the police in requiring a showing of discriminatory intent.

Some important features of the case are hidden behind the doctrinal emphasis on the result: the introduction of the intent requirement. At the district, appellate, and Supreme Court levels, the African American plaintiff sued, as name defendant, the African American mayor, Walter Washington. During the early 1970s, the D.C. Police Chief, Jerry V. Wilson, engaged in an aggressive, affirmative action outreach program to attract minority officers to apply to the force. So successful was Wilson that Time Magazine placed him on their July 13, 1970 cover, and heralded his efforts to recruit more African Americans to the force: a ten-percent increase in police on the beat by 1970 after one year on the job; fifty percent of D.C. Academy recruits were African Americans.

But the big issue for the plaintiffs was that the test didn’t really match what was required of officers on the beat. The claimed that Test 21, designed to test verbal ability, vocabulary, reading and comprehension, was not tailored to test police activity—a claim supported by the fact that the test was developed by the Civil Service Commission, not the Police Department.

The central question raised by the plaintiff's challenge was: what is police activity? If police activity is the sort of crime-fighting associated with the use coercive control on the streets—what Egon Bittner called “the distribution of situationally justified force in society”—then it turns out that very little of what the police do is actually crime-fighting. The overwhelming majority of a beat officer's time is spent waiting, wandering, dealing with public welfare issues (such as helping people who are lost or who need medical aid) or public order issues (such as breaking up minor fights or quieting noisy neighbors). And most of these public welfare and public order issues are best dealt with by articulate officers able to engage with the public and their fellow officers. Or as William Ker Muir put matters in his famous book, Police: Streetcorner Politicians, the police must "develop[] an enjoyment of talk. Eloquence enriches his repertoire of potential responses to violence and permits him to touch the citizenry’s souls—their hopes, their fears, their needs to be something worthwhile, their consciences."

The infamous Test 21 appears to promote these abilities. In fact, written tests, because objective, were vital to the promotion prospects of junior African American police officers. As James Forman in his excellent new book, Locking Up Our Own: Crime and Punishment in Black America, points out, the rankings that ensured promotion had both an objective and a subjective "fitness for promotion" component, so long as the African American officers could score extremely well on the written component, they could overwhelm the biased grades they received on the subjective component. So reading and comprehension was vital to promotion inside the force, as verbal skills were essential to interacting with the public in ways that would de-escalate the risk of violence.

Ironically, given the deserved reputation of the case as marking the beginning of the end of the Court's expansion of protections on the basis of race, the sort of written test challenged by Davis could have helped both the public and the African American officers admitted to the force. In particular, it could have helped the public by focusing a reconceptualization of the core functions and justifications of the police to focus on public welfare and public order, rather than crime fighting. The emphasis on verbal skills could have led the police to embrace their role as eloquent “street corner politicians,” members of the community who act as neighbors, rather than warriors or guardians. It could have encouraged the police to recognize that the manner in which they are trained and socialized to respond to the community is an important political and moral aspect of policing: one that must become high visibility rather than remaining hidden in the shadows. Only once the police recognize the common humanity and political standing of the individuals they police, only once they see the communities they police as places in which they can share a life in common with its residents, can the police hope to react proportionately and responsibly to the challenges they face.

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