Broad criminal justice reform is needed to change policing in the United States, and it should originate at the local level, Duke scholars said Thursday.
Three Duke experts spoke to media Thursday about a variety of policy and reform issues as well as about what can be learned about policing at the nations founding.
Here are excerpts:
ON POLICING, DEADLY FORCE AND REFORM
Brandon Garrett, law professor
Police in America have incredibly broad discretion to use deadly force. About 1,000 people are killed each year by police, making police violence a leading cause of death for black men in particular. This is a public health and civil rights crisis. Its also a legal and cultural crisis.
The law is not particularly constraining of police. The Supreme Court has said that officers can basically react to potentially deadly situations based on what seems reasonable in the moment.
That shoot-from-the-hip approach has led to black suspects far more likely to be killed by police. George Floyd posed no risk to anyone when he was killed in the neck hold in Minneapolis. Tamir Rice had a toy gun when he was killed in Cleveland. We can go on and on.
We need to think more broadly about what is public safety. What do we need police for? And when is it appropriate to have armed people intervene in our society?
Our (Duke Center for Science and Justice) does work on use-of-force policy and this is a deep legal and institutional and culture problem. A joint statement by our center, with others, including collaborators on ALI Principles sent this out in a Changing the Law to Change Policing statement yesterday.
ON WHAT DEFUND THE POLICE MEANS RIGHT NOW
Darrell Miller, law professor
The question about defund the police is about what the slogan means. Unfortunately, I think its got so much meaning it really doesnt work effectively as a slogan. Defund the police, at its most useful and constructive, is a request to totally re-think how we do policing in America. Who does it, with what kind of tools, where, under what circumstances. Its about re-deploying resources to other non-policing functions that are also social services like job training, substance abuse programs, domestic violence prevention work.
Because its a slogan and easily misunderstood, its easily misunderstood to mean abolish the police. I really think that will be detrimental to Black Lives Matter and to black lives in general.
I think that will empower and embolden vigilantes, people who will engage in armed self-help in the way that led to the deaths of Trayvon Martin 10 years ago and Ahmaud Arbery earlier this year.
The issue about abolishing the police or dis-establishing the police has the potential to abolish the one police function thats politically accountable. If someone designates himself as an armed neighborhood watchman and stops me, I dont have any control over that person. I cant make them wear a body camera. I cant make them engage in de-escalation techniques. I dont even know who to file a report with.
With a police force that is taxpayer-supported, that is politically accountable, I have some control as a voter and a taxpayer over what kind of force is being used in my community.
ON HOW OUR NATIONS FOUNDERS ENVISIONED POLICING
Laura Edwards, history professor
At the time of the nations founding, policing as a term was used broadly to refer to governing.
It was about resolving a wide range of problems and injustices, and everybody had responsibility for policing in this broad sense. And everyone could draw on police powers as well, and that was particularly important for people who were unequal, who were on the margins of society, who could then call on government and their authority to back them in various complex problems in their lives. We tend to forget all that today.
We think of policing now only as police forces of uniformed officers. But that didnt exist in the 18th and early 19th century. And we think policing only refers to crime, but that was not what policing was about then. It was about this broader sense.
It was written into our constitutional order. States delegated authority to local governments so people could participate actively in the policing of their communities.
People have the constitutional authority to hold modern-day police forces accountable. But they also have more power than that. They have the right to actually hold and define how government uses police powers, and to what end.
This is important because police powers are actually about more than crime and criminals. Theyre about resolving conflicts. Theyre also about addressing the problems of people in trouble. Theyre about rectifying deep-seeded injustices.
The past tells us that policing isnt an either/or issue. Its not that you do it or dont to it. Its actually about how we do it and that really is about our constitutional order.
ON HOLDING POLICE ACCOUNTABLE
Garrett
Its very, very hard to hold police officers liable, even in fatal shootings captured on video. Because police benefit from another layer of benefit of the doubt, reasonableness, what could they do in the circumstances? They have to make split-second decisions. Thats sort of the tenor of a lot of the reasoning of federal judges.
Also important, though, is internal accountability within police departments. Police discipline. Police policies matter even though theyre just on paper because if police officers do something to violate their policies, something should happen.
ON THE LIKELIHOOD OF REFORM FIRST AT THE LOCAL LEVEL
Miller
I think were seeing it already. To the extent that some of the demands of activists in the streets over the last few days are actually percolating to thought leaders, to political leaders. Some of the proposals for police reform are already being drafted as draft legislation in Congress. Abolishing qualified immunity for police officers, conditioning funding for local police on keeping accurate records on use of force or discriminatory policing.
To the extent that there are truly groups that truly believe that police are not needed, they are also active. I am doubtful that as a nationwide matter we will see the widespread disestablishment of police. But if local communities, in Minneapolis or Seattle, want to take some or all of the defund the police rhetoric and implement it as policy, they have the ability to do so. I just hope they choose wisely when they end up making these demands into policy.
ON RECOMMENDATIONS FOR REFORMING POLICE
Garrett
I think we do need to rethink what we need police for. What the structures are for policing agencies. Why do we so often arrest people? Why do we so often place people in jail, which we didnt even just a few decades ago? During COVID, urgent new questions have been asked about why people end up in jail for petty crimes, largely due to the inability to afford cash bail.
Policing agencies are needed in many places for public safety, obviously. But there are lot of very small police agencies that cant possibly follow best practices or have good training. We need to consolidate police departments.
We need to revise criminal codes and consider decriminalizing (some) offenses. We dont need to be arresting people, let alone holding them in neck holds, for using a counterfeit $20 bill.
ON HOW POLICING WAS SEEN POSITIVELY EARLY IN US HISTORY
Edwards
At our founding, policing had very broad and positive connotations. We now associate all these negative connotations to it in the sense that we associate it with police forces that are separate from people and are enforcing laws and trying to root out crime. Its become a very negative kind of thing.
People imagine policing in the past to be simply about militias. But militias were actually organized to address specific threats, and were very temporary, and then disappeared after the threats were gone.
Ordinary people, marginalized people could also use police powers to address what they saw as the major issues and problems in society. I think were missing that part of it. Historically, police powers belonged to everyone.
ON ONE POSITIVE CHANGE YOUD LIKE TO SEE RIGHT NOW
Garrett
Id like to see comprehensive, state-level police reform and criminal justice reform legislation in states like North Carolina.
We need comprehensive reform. We need to be looking to our local elected leaders to make deep change.
Edwards
Id like to see us think about the protesters and also their demands as what is a part of our original constitutional order, and return to that, and what we see now with the way police forces are acting, and what theyve become, is actually aberrant, what is actually a move away from the original constitutional compact.
Miller
The fact that were at a moment, I think, where people really do recognize that this is a problem, that this is a problem that needs to be addressed, that America is not living up to the best version of itself, and that some kind of real, substantial, data-driven changes are available and can be implemented soon I hope people will recognize the magnitude of this moment.
The experts:
Laura EdwardsLaura Edwardsis a professor of history at Duke University. Her areas of expertise include womens history and legal history, including history of the law in the 19thcentury South and the legal history ofpolicing.She is the author of several books, including A Legal History of the Civil War and Reconstruction: A Nation of Rights.ledwards@duke.edu
Brandon GarrettBrandon Garrettis a law professor at Duke University and a leading scholar of criminal justice outcomes, evidence and constitutional rights. Garretts research and teaching interests include forensic science, eyewitness identification, corporate crime, constitutional rights and habeas corpus and criminal justice policy. He is the author of five books.bgarrett@law.duke.edu
Darrell MillerDarrell Milleris a law professor at Duke University who specializes incivil rights, constitutional law, civil procedure and state and local government law. He also co-directs theCenter for Firearms Lawat Duke. Miller is the co-author ofThe Positive Second Amendment: Rights, Regulation, and the Future of Heller(2018).dmiller@law.duke.edu
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