Reforms aren’t enough to end ‘us vs. them’ policing in America

Confronting modern policing’s roots in medieval England and American slavery will do more to make us all safer.

Torin Bracey yells chants during a ‘Count Every Vote, Protect Every Person’ rally and march in Pioneer Square on Nov. 4, 2020. (Dorothy Edwards/Crosscut)

Those who say the guilty verdict in Derek Chauvin’s trial for the murder of George Floyd represents a change in American policing remind me of those who falsely claimed that the election of Barack Obama signaled the dawn of a post-racial America. The response to Obama’s election unleashed the worst racism seen in this country in the past 50 years, and the verdict in the Chauvin case has done little to curb white police officers killing young Black men and women, even children in their teens.

Last month, in response to this year’s macabre spate of police killings, the Washington state Legislature did what governing bodies often do in such situations: They pushed through a series of accountability reforms. Among them was House Bill 1054, which outlaws or limits no-knock warrants, chokeholds and neck restraints — an attempt at preventing the kind of reckless and negligent policing that led to the deaths of Breonna Taylor in Kentucky and Floyd in Minnesota. House Bill 1310, meanwhile, hopes to rein in the use of excessive force by police through a number of measures, including requiring approval from the highest elected official in their jurisdiction before deploying tear gas against citizens.

But such tinkering is woefully inadequate to the problem at hand.

Over the course of Chauvin’s recent trial, police killed more than three Americans a day. In each of the past five years, police have killed on average about 1,000 people across the nation, the victims disproportionately Black, Latino or Native American. Among the more recent victims are 20-year-old Daunte Wright, 16-year-old Ma’Khia Bryant, and 13-year-old Adam Toledo.

These recent efforts by the Washington Legislature and others bring to mind “epicycles” — a term the first century Greek astronomer Ptolemy used to describe the aberrant motions of the planets. Ptolemy held steadfast to an ancient belief that the sun and the planets revolved around the Earth, a view strongly supported by the Catholic Church. Epicycles made only modest changes to the prevailing dogma without overthrowing it.

Police reform legislation is evidence not of progress but of an unwillingness to confront the foundations of American policing. Reform merely tinkers with the current system of policing and hopes everything will still fit. But tinkering didn’t work for Ptolemy, and it won’t work for American policing.

Eventually, in the 16th century, Copernicus put forth a radical new theory that the Earth and the other planets revolved around the sun. But it took more than a century before Copernicus’ ideas overcame fierce social and religious resistance and finally found widespread acceptance. What’s needed today is a Copernican revolution in public safety — one that would redefine the foundations of modern policing as Copernicus redefined the foundations of modern astronomy.  It took overturning deeply entrenched social and religious beliefs to mainstream Copernicus’ heliocentric solar system. So, too, it will take overturning deeply entrenched social beliefs to bring about widespread acceptance of a new foundation for policing.

Activists calling to “defund the police” and reenvision policing are on the right track. But they’ve not gone far enough — far enough back, that is. These activists make the argument that American policing needs to be rebuilt from the ground up because of its origins in the 18th and 19th century slave patrols, and this is true. But there’s an even larger, more encompassing argument for doing away with policing as we currently know it and reconstructing a modern system of public safety — an argument akin to why Ptolemy was finally dropped in favor of Copernicus.

In fact, American policing is based on ideas about law enforcement originating in 13th century England, when most thought the Sun revolved around the Earth. These ideas have changed little since then; have easily adapted to racism and white supremacy since; and have no place in 21st century America.

Us vs. them policing

In 1285, King Edward I enacted the Statute of Winchester, a decree commanding inhabitants of small English towns to establish police forces and to arrest anyone who wandered into their jurisdiction after sunset. If that person fled to avoid arrest, inhabitants were required, under penalty of arrest themselves, to raise a “hue and cry” and pursue the suspected transgressors from town to town.

Very soon, the contours of a public safety system came into view: a police force for each village or town, organized into “watches” and “wards”; the presumption of guilt of anyone not from a given locale. These were key features of the Statute of Winchester, which divided the populace into “us” vs. “them,” and demanded that each local police force protect the former from the latter. In the 13th century, the “us” were those of an English town or village; the “them” were persons out after dark, whether or not they had committed a crime.

“For the United States,” writes Jonathon A. Cooper, assistant professor of criminology and criminal justice at Indiana University of Pennsylvania, “the Statute [of Winchester] set up a system of justice administration that would cross the Atlantic and form the basic framework of American colonial and post-colonial policing.”

In colonial America, the “us” were the slaveholders, the “them” slaves. Early colonial laws, like a 1672 Virginia statute, called “An act for the apprehension and suppression of runawayes, negroes and slaves,” granted immunity to any white person who killed or wounded a runaway slave while in pursuit of them. It read:
                “Be it enacted by the governour, councell and burgesses of this grand assembly, and by the authority thereof, that if any negroe, molatto, Indian slave, or servant for life, runaway and shalbe persued by warrant or hue and crye, it shall and may be lawfull for any person who shall endeavour to take them, upon the resistance of such negroe, mollatto, Indian slave, or servant for life, to kill or wound him or them soe resisting.”

Colonial notions about policing slaves later found their way into the U.S. Constitution. They took the form of the fugitive slave clause (never repealed) and the Second Amendment, granting slave owners the right to have their slaves returned, and the right to form “slave patrols” — militias — to pursue those slaves.

In post-colonial America, serving in slave patrols was compulsory among citizens, but many wealthier white Americans resented that and paid less affluent whites to serve in their place, creating a paid slave patrol force and laying the foundations for a paid police force. These slave patrollers became some of the nation’s first “sworn officers” and were given a badge resembling the ones law enforcement officers receive today.

After slavery, the “us” became white Americans and the “them” became Black Americans, but police still protected the “us.” Much of the brutality of the post-Civil War and Jim Crow era saw police openly and covertly killing Blacks. During the 1866 New Orleans Massacre, police killed scores of Black men during a constitutional convention aimed at universal suffrage. Many police officers during this period were also members of the Ku Klux Klan, which, together with paramilitary forces and demagogic politicians, unleashed campaigns of terror and extrajudicial killings directed at Black Americans. The NAACP estimates that nearly 5,000 Blacks were lynched between 1882 and 1968, often with tacit or explicit support from law enforcement.

As American cities grew in the 19th and early 20th centuries, the “them” expanded to include not only Blacks, but groups like the Irish and the Poles. As the historian Khalil Gibran Muhammad said recently, “The Anglo-Saxons are policing the Irish. The Irish are policing the Poles. And so this dynamic that's playing out is that police officers are a critical feature of establishing a racial hierarchy, even among white people.” But over time the once marginalized Irish, Polish and Italians assimilated into the dominant “us.” What remained were groups that would never become part of the “us,” including Blacks, Asian and Latino immigrants, and American Indians.

A Copernican Revolution

Us vs, them policing is the underlying problem we face. Police should not exist to protect the “us”; they should protect the “all” — all citizens of this nation. In a democracy, the police should be especially committed to protecting the rights of minorities against the tyranny of the majority. And citizens should not be empowered to enforce this us vs. them boundary either. Echoes of the 13th century origins of policing resound today: neighborhood watch patroller George Zimmerman claimed he was protecting his community when he shot and killed Trayvon Martin, as did George and Travis McMichael, when they shot and killed Ahmaud Arbery.

When the Statute of Winchester came into effect, the Copernican Revolution had not taken place and most people believed the Earth was flat and the sun revolved around the Earth. Surely we can do better than to continue supporting a system of policing based on such medieval ideas about law enforcement. Britain, where the Statute of Winchester was born, dropped it as the basis of policing by the early 1800s, adopting in its place the Metropolitan Police Act of 1829. Few other institutions of modern American society are based on practices and principles that are 750 years old.

Demilitarization, better training, greater accountability and transparency, civilian control of police — top experts are not hopeful that such reforms will actually bring about the needed change in policing.

Yanilda González, assistant professor of public policy at the Harvard Kennedy School, said: “I'm always such a pessimist with police reform.… [We] have to distinguish what works with what can last, what can actually endure without coming under the typical strain of police resistance and politicians' incentives to undermine police reform.”

Sandra Susan Smith, Guggenheim professor of criminal justice at the Kennedy School, goes a step further: “What I think we're up against is not just a fairly conservative block of folks who are embracing law and order, and want to quell … any kind of dissent. We actually also have kind of silent support among those folks who would present themselves as being fully in favor of progressive change.”

A broad swath of Americans are in this conservative block, even those who would not ordinarily consider themselves law and order advocates. Shortly after George Floyd’s murder, a former mayor of Minneapolis, Betsy Hodges, argued that the problem with policing is not the police, but rather the society from which the police emerge. She held out particular scorn for members of her own demographic.

"Whether we know it or not, white liberal people in blue cities implicitly ask police officers to politely stand guard in predominantly white parts of town where the downside of bad policing is usually inconvenience,” Hodges wrote in the New York Times, “and to aggressively patrol the parts of town where people of color live, where the consequences of bad policing are fear, violent abuse, mass incarceration and, far too often, death. Underlying these requests are the flawed beliefs that aggressive patrolling of Black communities provides a wall of protection around white people and their property."

This makes for stiff headwinds. The police, politicians, most of the public and even those who would otherwise consider themselves progressives are explicitly or implicitly arrayed against fundamental changes in policing. But that does not mean we should stop agitating for a change. Copernicus was up against powerful social and religious forces that disregarded the science behind his observations. It took a century, the efforts of Galileo, Isaac Newton and many others, and the acquiescence of the church to finally cement the notion that the Earth revolved around the sun.

If we mark the start of the modern-day effort to change policing to the Black freedom struggle of the 1960s, that still leaves about 40 years before we might expect to see any meaningful change in policing. But it is possible for the arguments to be made, and the steps taken, to bring an end to us vs. them policing and to disengage modern-day policing from its roots in medieval English society and America slavery. Not only will communities of color, under the ongoing threat of police killings, violence and brutality, be safer, but all Americans will be safer as well.