We’ll Never Have Criminal Justice Reform If We Rewrite Policing History As Racist

We’ll Never Have Criminal Justice Reform If We Rewrite Policing History As Racist

If the entire concept of policing were no more than slave patrolling with badges, fixing it would be impossible. But modern police departments are a product of 1829, not 1619.
Kyle Sammin
By

Cries for justice from the protests following the death of George Floyd ring out across America. Nearly everyone who viewed the horrible police confrontation that led to Floyd’s death acknowledges there exists a serious problem. But the more extreme protesters — a growing number, troublingly — have skipped right past any idea of reform and called for the police to be abolished entirely.

Part of the complaint includes the assertion — taken at face value, as in this article from Reuters — that modern police departments “first appeared in the 19th century, and in some southern states grew out of patrols organized to catch runaway slaves.” This mashes together a lot of history in a way that doesn’t make a lot of sense. Worse than that, it clouds the issue in a way that could make meaningful reform impossible.

Origins of Policing

Recognizing that there have been excesses — even criminal excesses — in modern policing is the first step in finding a solution. To the radicals and their friends in the press, step two is yelling an extreme slogan at the top of their lungs. Instead, we should note the flaws in this proposed “solution” while exploring others, looking for a thoughtful, serious, and literal solution to the sort of behavior that led to the death of Floyd, Breonna Taylor, and others.

A big problem is that there are too many laws being enforced, but protesters, unable to square the circle between progressive laws and libertarian enforcement, turn instead to a page from the 1619 Project’s handbook: Everything I don’t like is racist. While individual police officers have certainly been racist, and some still are, tarring policing itself as a racist enterprise is historically wrong.

The first modern police department was formed in London, a city with zero slaves. Before that time, law enforcement in all English cities and towns was performed by unpaid justices of the peace who directed parish constables. Even as the dislocations of the Industrial Revolution demanded new approaches to law enforcement, the English were reluctant to leave behind their system for one they thought might lead to continental-style tyranny. To the extent they did have paid constables, they were often seen as ineffective and corrupt.

This all changed in 1829 with Parliament’s passage of the Metropolitan Police Act. In “Cops and Bobbies: Police Authority in New York and London, 1830-1870,” author William R. Miller called the new London force a “preventative police,” and “the first modern police force in a nation with representative government.” That is to say, the Metropolitan Police tried to prevent crime by stopping it from happening, rather than simply arresting offenders after the fact.

Then, as now, some people saw the visible expansion of the power of the state as reassuring, while others found it intimidating. To walk the fine line between protecting the people without trampling their traditional liberties, Charles Rowan and Richard Mayne, the first joint commissioners of the Metropolitan Police, developed nine principles that would come to define an ethical police force. This concept of “policing by consent” differentiated English police from continental equivalents by demonstrating that their role was to cooperate with the people to maintain order, not to rule them by force.

Policing in America

Boston and New York followed London by creating the first American police forces in 1838 and 1845, respectively. As in London, race was not the issue motivating the change. New York’s population in 1840 was 94.7 percent white, and Boston’s was similar. The issue was, instead, industrialization and an increasingly dense population (class tensions and anti-Catholic sentiment were likely also a factor as the cities’ leaders feared the growing mass of urban poor.) The old policing was meant for smaller towns and was ineffective at addressing the needs of a large metropolis. But the new systems had no more to do with race or slavery than the old.

Compare these high-minded ideals to the reality of slave patrols in the American South. In “Slave Patrols: Law and Violence in Virginia and the Carolinas,” author Sally Hadden notes that these patrols had their roots in older Anglo-American traditions, but not the modern Metropolitan Police. Instead, they harken back to an older, informal method of law enforcement, adapted for the slave-holding society:

Efforts by slave patrols to limit the movements and behavior of slaves evoke memories of posse comitatus, the bands of men called out in early modern England to chase down and arrest fleeing felons. Likewise, the “hue and cry” that a constable would bellow in the wake of elusive criminals, calling upon all available men to help him capture the thief or burglar, also provided a model for chasing down slaves in the New World.

These informal systems were already in place in colonial times and carried over after the Revolution in those states that still had slavery, which explains why they were so different from the modern police inspired by Sir Robert Peel’s principles. The ad hoc, unprofessional, and often unpaid patrols of rural areas resembled the old-fashioned police that enforced the law in England under the pre-1829 regime.

The first police department in the South was not in the rural areas, where slave patrollers helped to keep black men and women enslaved; it was in New Orleans, the South’s biggest city, in 1853. Modern policing followed from urbanization, not racial strife.

As modern policing took hold in smaller cities after the Civil War, and as Republicans lost control of Southern state governments following Reconstruction, many of those once active in hunting down runaway slaves surely found their way into those departments. But the true successor to the slave patrol was not the police but the South’s first domestic terrorists, the Ku Klux Klan. As Southern legislatures enacted Jim Crow laws to regulate nearly every aspect of black lives, the police and sheriff’s departments there took over enforcement of those racist ordinances. And, perversely, they often overlapped in membership with the Klan.

Looking at this point alone, one could understand the confusion between slave patrols and the post-war police in the South. But the professionalized (if racist) post-Reconstruction Southern police were not performing the same task. Their job, done correctly, was the same as those of the cops in London and New York. It was not that a racist cadre was remade with new uniforms, but rather that the new concept — a professional police force — was corrupted by the racism of the society in which it existed.

Return to First Principles

This may seem hair-splitting, but the distinction matters. Believing that police “grew out of patrols organized to catch runaway slaves” means the institution is irredeemably corrupt, and adds fuel to the radical demands for abolishing all police departments. But understanding that all American police departments grew out of the vision of the early London police commissioners means that the idea of a professional police force is sound. It may be corrupted by bad actors, but it may also be purified by good actors.

Reform, not destruction, is the answer. We must recognize that we have moved some distance from the vision of Rowan and Mayne. They called for the police to “prevent crime and disorder, as an alternative to their repression by military force and severity of legal punishment.” Yet since 2001, police departments have become militarized, gaining access to vast resources of surplus military goods that can render them indistinguishable from the “repression by military force” they were meant to avoid.

Another of the Rowan-Mayne principles would go a long way in resolving the tension in modern policing: “To use physical force only when the exercise of persuasion, advice and warning is found to be insufficient to obtain public co-operation to an extent necessary to secure observance of law or to restore order, and to use only the minimum degree of physical force which is necessary on any particular occasion for achieving a police objective.”

This is the rule in most police departments already, but if it is not strictly enforced, it is easy for tension and distrust to develop among the people with whom the police are supposed to cooperate. Failing to enforce the rules on themselves makes their enforcement of the law on others impossible. Returning to this honorable tradition of policing by consent is possible, though, because that is the original condition of all English and American police forces.

Whatever injustice has polluted or weakened those traditions has not erased them, and most police officers still live by some version of these high ideals. If the entire concept of policing was no more than slave patrolling with badges, fixing it would be a difficult task, if not impossible. But modern police departments are a product of 1829, not 1619. They were designed to do good, and cities without them would be far worse off. The answer is not the destruction radicals call for, but a serious reformation and a return to the principles that made modern policing in the first place.

Kyle Sammin is a lawyer from Pennsylvania, a senior contributor to The Federalist, and the co-host of the Conservative Minds podcast. Read some of his other writing at his website, or follow him on Twitter at @KyleSammin.

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