At first appearance, Herman Rosenfeld seems to rightly take on James WIlt’s call for police abolitionism frontally. There are many people who assume a reign of chaos will be unleashed without the presence of a regulatory authority mandated to enforce the law.
In a recent article for Canadian Dimension, Rosenfeld calls Wilt’s article “ridiculous”. He speculates that “Perhaps Wilt had written a satirical piece”. He accuses him of “radical sloganeering”. Instead, Rosenfeld calls for the police to be “thoroughly transformed” or reformed and democratized. “There needs to be a struggle to change these institutions,” he writes,”as part of the larger struggle to democratize society and the state and to challenge the power and domination of the capitalist class”. But is Rosenfeld right in thinking we can transform or democratize the police? And does Wilt’s argument that the police are an element of class oppression that cannot co-exist with a humane society—let alone a socialist one—and must be abolished, have no validity?
In my view, based on a career working as a criminal lawyer and a legal advocate against police abuse for 47 years before retirement, they should both learn to listen to each other because they both have something insightful to say.
Wilt is right that police forces cannot be reformed or democratized. This is apparent from reviewing the evolution of modern municipal police forces as public institutions with the exclusive right to coerce the public to obey the criminal law at the behest of the state.
A brief history of policing
Until 200 years ago, in England and many other European countries, privately paid “watchmen” or volunteers emerged to prevent criminal conduct. Other aspects of social control—religion, the tithing system of collective punishment, relative immobility, innumerable capital offences—made this system function inefficiently and unfairly during most of the Middle Ages, including, of course, the use of torture, exile and hanging as deemed necessary to deal with criminals.
It was not until 1800 that the Thames River Police, who were previously funded by London merchants to stem thefts from the the city’s docks, became the first publicly paid police agency in the world. By 1829, when the Metropolitan Police Act was extended throughout England, it became a model for the United States, Canada, Australia, Ireland and many British and other colonies.
Municipal police forces were established during a period of rapid urbanization and “free commerce”. Mechanized cotton factories, train lines, sewing machines and production facilities using steam engines required a disciplined, obedient working class. From the beginning, the police forces, along with their baggage—judges, courts, lawyers, jails, and guards—were created to do the daily grinding to keep the working class in place. They emerged simultaneously with the Industrial Revolution and the first working class movement, the Chartists, in order to impose the “order” part of “law and order”. To do this, the police were empowered to enforce the criminal law, crafted to protect property and defuse social disturbances. If you review the tens of thousands of charges laid by New York City’s first formal police force in the mid-1800s, it reads like a list of what was then common activity for most working class New Yorkers on a rowdy weekend: public drunkenness, fighting, prostitution, vagrancy, disorderly conduct, theft, and so on.
The key point, whatever the details, is that conduct which was widespread and largely accepted as part of a worker’s daily life became criminalized, and a social force in the form of the municipal police was created to prevent or control it.
The police, in Canada and elsewhere, were created to protect property rights and enforce repressive laws that were created and interpreted in the interests of the status quo. Even decades before it became the norm for police to break up demonstrations or target minorities, they were used to enforce criminal conspiracy charges against trade union “combines”. Police forces are not neutral or reformable—they are quasi-militarized with all emphasis on a culture of obedience and none on training to be able to exercise independent and critical judgment. Hence, sexism, racism, xenophobia and a “we-they” mentality run rampant in these institutions of repression. In many cases, as we know, police have been used to deny democratic rights and attack or restrict labour actions.
Unlike feudal lords and monarchs who exercised direct personal power relations over serfs, the merchant and trading classes of the early 1800s in London and elsewhere needed security and predictability to maintain long term stable social relations with a growing working class, yet to be disciplined by collective bargaining agreements or conservative union bureaucrats.
New state organs that met new needs were developed to serve these mercantile and nascent industrial ruling classes. The state, however, was to be disguised as neutral, equal and fair and therefore deserving of obedience. Hence, for example, the special public status of the London police required them to be uniformed (blue to set them apart from the hated army’s preference for red), prominently identity-tagged, without firearms and dressed distinctly. The “Bobbies” soon became the model for “preventive policing” throughout the world. In other words, police forces became a symbol of the consensual availability of the use of force to ensure conformity with the emphasis on deterrence and visibility instead of punishment.
Within a matter of a few decades, this model of social control by police spread across the globe from Australia to Canada where the proliferation of urban slums accommodated the burgeoning labouring classes who filled the needs of the mercantile elite. French philosopher Michel Foucault has described how disciplinary power became internalized because of fear of police surveillance detecting criminal or anti-social conduct. The criminal justice system, with police at its apex, therefore remolded the new working class into “law-abiding citizens”—the new ideal norm for the productive and passive “free man” with the police becoming the enforcement arm of what is moral and acceptable for the benefit of society as a whole.
The police emerged as an instrument of social control replacing the practices of the absolute monarchies where those who offended the law by breaching the King’s Peace were humiliated and punished in stockades placed in the town squares or publicly executed or exiled. It was much easier to use indirect means of influence to eliminate criminal behavior in the interest of the social good.
While the use of force, jails, courts and prisons were the ultimate guarantee of obedience, their mere existence acted as a much more effective means of preventing the vast majority from risking being caught or punished for criminal conduct.
Foucault also observed that police forces were used to perform administrative, investigative and non-criminal duties as they still are (traffic control, public health duties, non-criminal emergencies), thereby obscuring their essential function of maintaining social order beneath a superficial patina of appearing to serve the public welfare.
Reform or abolition?
If James Wilt has his way and police are abolished, many of these duties could readily be handed over to other specialized institutions or professions, likely more adept than police may be in completing them. The overwhelmingly large number of persons in custody or found guilty of criminal conduct who suffer from mental illnesses or disadvantageous disabilities that prevent their gainful employment suggests strongly that much of the work police perform continues to deal with what are essentially social, medical, educational and financial problems.
While there are those whose deviant behavior is serious enough to pose a threat to society as a whole and require restraint or treatment in an institutional setting, the vast resources and scope of powers wielded by police are neither necessary nor effective in preventing such highly alienated individuals from engaging in criminal behavior.
The militarization of police forces and their access to vast sums of money and other resources, particularly in the US where the problem is acute, has done less to reduce the crime rate which now incarcerates two million largely poor and racialized prisoners. Compare this situation with the Scandinavian countries which have skeletal police forces and emphasize rehabilitation rather than punishment.
Note that in Canada, thousands of prisoners have been released from jails to limit the spread of COVID-19 with no uptick in criminal behavior. Why do we need to spend billions of dollars on hiring police to arrest persons who should not be imprisoned in the first place?
The majority of crimes, both proscribed and committed, involve offences relating to private property. The law is the means that the powers that be in society use to maintain an economic system based on private ownership. Thus, criminal law acts as the iron fist of capitalism. Law is not an empty form devoid of historical context and unconnected to the concrete reality of social conflict.
Legal formalism hides the fact that the law ultimately reflects the balance of contending social forces. The personal subordination which characterizes systems of feudal property has been replaced by a system of domination and subordination that facilitates and consolidates the unequal distribution of property and the monopoly of capitalists in the production process. After all, both civil and criminal law is largely codified custom enforceable by state force and therefore inherently preserves existing property and social relations.
Of course, there is no mechanical connection between the law and capitalist economic relations which tend to divide people and fragment all human interaction. Accordingly, the legal sphere is also used to regulate relations within and among the propertied classes. Further, in order to maintain its legitimacy and authority, the law has to make concessions to principles of equality and fairness which forbids, as the saying goes, both the rich and the poor from sleeping under bridges.
Yet workers and proponents of social change, when organized and acting independently, have forced the law to be changed to eliminate child labour, restrict working hours, declare wars illegal, protect human rights, legalize a woman’s right to choose, defend free speech, pass health and safety legislation, and so on. In this sense, the law is forced to mirror, albeit in a distorted fashion, the partially successful social struggles and resistance by workers, minorities and other victims of repression to capitalist rapaciousness.
The complexities of legal reasoning, based on precedents and statutes, often hundreds of years old, creates cracks and exceptions in existing capitalist legal systems, which give developments in the case law some flexibility to adapt to the specific configurations of the balance of class forces in cases coming before the courts. However, the law never achieves a degree of autonomy that removes it entirely from the social forces that shaped the framework of the law in the first place.
Both Wilt’s and Rosenfeld’s articles comment on the conduct of the Winnipeg Police Department and violent acts carried out by its officers over the last year. Because their observations have general application, I have focused this article on municipal police forces generally. But there are other police forces in Canada and elsewhere that engage in more specialized functions—the RCMP and CSIS, for example. It is apparent that my overall analysis has relevance to them as well; in fact, both of these forces have a history that shows that they are more patently oppressive and impossible to reform than municipal police. But the question remains: is there nothing that can be done pending the replacement of these police forces by creating a society which will no longer require their “service”, as Wilt suggests? That is an important issue since it could still take more than a little while to achieve that goal.
Although police cannot be reformed, democratized or transformed in a way that respects the social and psychological needs of capitalism’s subordinate classes, they can be restrained. They can be forced to sustain defeats as the RCMP Security Service did when it was disbanded to be replaced by a civilian service, CSIS, in 1984 (I take pride in having appeared before the McDonald, Keable and Krever Commissions in the 1970s and 1980s with evidence of widespread RCMP illegality on behalf of numerous clients which contributed significantly to its disbandment).
Here are some of the things I learned representing clients facing police abuse over 47 years. The unquestioning obedience of members of police forces, and their hierarchical, bureaucratic structures clearly encourage wrongdoing. Studies have shown that police executives tend to be submissive to authority and have greater conformist tendencies than the general population. From the earliest days of training, police cadets are set apart. Their training imparts a “we-they” mentality which isolates them from the public. Recruits are separated from family and friends and are subject to drills and military discipline. Such training ensures that the recruits lose their sense of individuality and social cohesion and become depersonalized.
In addition, lengthy probationary periods combine with the absence of procedural safeguards in internal disciplinary proceedings to exert pressure on police officers to submit to unrealistic and unlimited demands made by their superiors. The most glaring example is the informal quota system many police forces use whereby senior officers set goals in order to gauge productivity. Critics of the quota system argue that its use encourages the manufacturing of crime through entrapment and pressures officers into making arrests and obtaining convictions by using improper means or by doctoring evidence.
The lack of public accountability of police contributes significantly to police abuse. Police boards have the exclusive function of recruiting, promoting, suspending and dismissing police officers. Members of these boards, who are government appointees and seldom challenge the decisions of police chiefs, tend to shield and shelter abusive police practices. Lax accountability is endemic. All too frequently, punishment amounts to a slap on the wrist. When almost 100 police officers breached a mandatory policy by removing their name badges during the G20 summit in 2010, their penalty was a day off. When a court action found that a large number of police officers were turning off or not even switching on their in-car cameras as required, the implicated police chief in Toronto instituted a mild penalty of taking away a day of vacation. In both these cases, discipline was at the unit level and thus did not go on the discipline records of individual officers. All this nurtures a culture of impunity.
In reality, police board members seldom discuss substantive policing issues in public. In practice, boards seldom provide basic new directions or fully assume their responsibility as public overseers of police practices. Legislation governing provincial police tends to reinforce conformity to improper police practices through arbitrary police procedures directed against non-conformist officers. Secret internal trials in which superiors act as accusers as well as judges strip recruits of critical and independent judgment and reinforce a police subculture with its own values and rationales. The police forces are well-oiled machines which produce criminals as the fruit of their labour.
Many civil libertarians advocate an independent citizens’ review board to ensure accountability of the police to the public. While police complaints commissions exist in many cities, they lack the independence needed to ensure public control. Moreover, it is rare for more than a tiny fraction of complaints to proceed to a hearing.
They are usually staffed by ex-police officers, do not require the “subject officer” to answer questions in a timely fashion and have a very high threshold to establish a case. Police are almost always found credible. What is needed is real independence—a municipally elected police complaints review board reflecting the diversity of the community, including representatives of minorities, victims of police abuse, and the poor.
Appropriate statutes should guarantee police recruits protection against arbitrary dismissal for refusing to conform to improper directives. The rights of natural justice, including open trials, the right to counsel and the right to independent judges should be granted in disciplinary proceedings. Greater job security and shorter probation periods (sometimes as long as two years) can eliminate the fear and insecurity which throttle the development of independent and critical judgement. Advancement through police ranks should take place by open competition in which skill and independent thinking are rewarded.
Police training could be held on campuses of existing universities to encourage integration into the community. The curriculum should provide greater exposure to materials designed to ensure respect for the rights of accused people and, in particular, procedures related to the questioning of suspects, and the importance of maintaining the voluntary nature of a statement. Aggressive judicial supervision of police behavior including appropriate action in cases of police abuse and the removal of recruitment qualifications which often have the result of deterring minorities from joining are also needed to discourage racist, sexist, classist conduct.
Rosenfeld is correct in promoting legislative and other changes similar to the ones identified above in response to the litany of police violence described by Wilt, but he is wrong in sowing illusions that these measures will change the fundamental nature of the police and “transform” them.
On the other hand, Wilt is right to point out that as enforcers of capitalist laws, police forces are inherently violent instruments of class oppression and must be abolished along with the capitalist system they serve. However, in the meantime, until that happens, measures are needed to restrain and neutralize police brutality to whatever extent may be possible.
Harry Kopyto is a retired legal advocate who lives in Toronto. He is a member of the Courage Coalition and New Democrats for Leap. Harry’s articles on legal topics have been printed in publications including the Globe and Mail, Boing Boing, and in law journals across Canada and around the world.