Radley Balko’s 2013
book is a combination of history and policy analysis of American policing
efforts after World War II. Balko starts with the provocative question of
whether police are constitutional—before wrestling with the contexts in which
their use is ethical and practical. Then he provides a brief but useful survey
of police history before the 1960s.
The American colonists
were greatly upset about the British practice of “writs.” (8) The king was
imposing heavy taxes, which led to smuggling and then attempts to curtail it. The
writs were general warrants, granting broad authority to British soldiers to
enforce the law. The colonists were not happy about either the wide-ranging
powers (including the ability to search anything and to seize suspicious items)
or soldiers as the enforcing agents.
By the time of the
American Revolution, the Founding Fathers were concerned about both Roman
history (1) and the British
military in their roles as a police force (xi). The anti-federalists were especially
worried, but the federalist concern about external threats (and thus, the need
to raise an army) carried the day (15). This was cemented by Shays Rebellion
and the usefulness of federal troops to collect taxes and keep the peace on
occasion (16-18).
With British
abuses, American independence, and British influence through common law and
rule of law, the “Castle Doctrine” was popularized: one’s home is one’s castle.
We can defend our homes and we should not to be subject to unreasonable treatment
of our property by the government (6). This led to the 3rd and 4th
Amendments: the government can neither quarter soldiers in our homes nor search
or seize our property.
Until the
early-mid-19th century, justice was meted out through community
standards, social stigma, “informal justice”, and vigilantism. Private citizens
were all involved in the process—a “universal duty” instead of something done
by the government. Sheriffs, constables, and marshals were largely
administrative and part-time unpaid positions. Imprisonment for punishment was
rare (x-xi, 28). As cities became more densely populated and more
heterogeneous, a police force became more practical. Manifestations differed by
region: night watch patrols in the North; slave patrols in the South; and
vigilantes and police-for-hire in the West. (28-29)
The American
militarization of the police begins with efforts to enforce the 1850 Fugitive
Slave Act in the North (19-23). The next episode was Reconstruction—with the
military used to impose laws in the South (23-25). Police reform was a key
facet of the Progressive Era, ranging from efforts to eliminate patronage,
professionalize the police, and use the police to enforce morality (31-33). Finally,
Civil Rights legislation in the Jim Crow South required the use of government
troops—again, putting the military in a heavy policing role (40-41).
Policy and
Incentives
One of the great
things about Balko’s book is that it’s written before the current controversies
over police policy. So we can trust its perspective, rather than being tempted
to see it in partisan or political terms. Moreover, he is a libertarian, so his
criticisms are both bi-partisan and objective. He is also careful to say that
his book is not anti-cop—but rather, anti-policy and anti-politician. When
politicians pass policies that create strong incentives, you can blame
individuals, but you should start with the system.
For example, “no-knock”
warrants and “stop-and-frisk” policies get going in 1964 under Governor Nelson
Rockefeller (R-NY). There was momentum from police and politicians—and the
courts did not stand in the way, starting with Ker v. California in 1963
(44, 48-49). By 1969, 25 states had a no-knock law (75). The federal government
began to use it frequently in 1972, but Sen. Sam Ervin (D-NC) successfully crusaded
against it being extended to DC (88, 93-94). The federal law grew more unpopular
and was repealed in 1975 (123-124). They also faded at the state level, before
growing again with the reinvigorated War on Drugs in the 1980s.
The courts were a
mixed bag, despite some infamy in protecting the rights of the accused. The
Warren Court also bolstered the capacity of the police to act, especially in
more-forceful ways (53-56). In fact, the last big SCOTUS ruling of the era confirmed
the legitimacy of “stop-and-frisk” policies—for no more than “reasonable
suspicion” in Terry v. Ohio
(1968). “Liberal” court rulings also gave conservatives a useful foil to run as
“anti-crime” candidates.
But Balko’s chief focus
is SWAT (Special Weapons and Tactics) teams—with their armored personnel,
military-grade weapons, and military training. He is concerned about their militarization
and especially their frequent use: They were “…once reserved as the last option
to defuse a dangerous situation. [Now] increasingly used as the first option to
apprehend people who aren’t dangerous at all.” (xii)
Balko is
sympathetic to the existence of SWAT teams—but not the eagerness to use them.
“This was an understandable response to the growing sense that American cities
were spilling over with crime, violence, and rioting…Assault wasn’t a
dirty word. It was an appropriately swift, forceful response to defuse a
violent situation…But when the riots, strife, and unrest finally died down,
when the threat of chaos and lawlessness eventually grew remote, the weapons,
heavy-duty vehicles, and militaristic culture stuck around.” (63-64)
Various events
served as catalysts—snipers in the Watts riots in 1965; Charles Whitman in the
clock tower at the University of Texas a year later (56-59); Patty Hearst and
the Symbionese Liberation Army (126-130). Connecting this to the Wolfe and Collier/Horowitz
books, the first SWAT team raid was against the Black Panthers in December 1969
(76).
Pop culture further
popularized more aggressive police work. After Dragnet in the 1950s, the
1970s gave us the ABC drama S.W.A.T., which led to a board game, lunch
boxes, action figures, View-Master sets, puzzles, etc. (131-132) From Dirty Harry and Miami Vice to Cops and Hill Street Blues, Hollywood has contributed
to a glorious and entertaining view of police work (304-306).
Some of this is
probably police preferences—a bias toward using force, often in spectacular
ways. Quoting a federal official in 1970: Local and state law enforcement “didn’t
value education or training. They valued hardware.” (96) Balko also argues that
police departments felt an intense peer pressure to go along with the trend to
militarize. Unfortunately, this was a desire “to be up to date without any
knowledge of what they’re getting into…Soon, just about every decent-sized city
police department was armed with a hammer. And the drug war would ensure there
were always plenty of fails around for pounding.” (132-133)
All that said, none
of this is particularly surprising given the underlying policy
incentives—thanks especially to the Federal government (244). For example,
“civil asset forfeiture” (CAF) was a powerful motivator to prioritize drug
offenses, since law enforcement agencies could keep any assets connected to the
crimes. CAF debuted in the 1970s under RICO laws (Racketeering Influenced and
Corrupt Organizations). In the early 1980s, a GAO report argued that CAF was
under-utilized and the Reagan administration was happy to seize the opportunity
(140-141, 146).
These incentives
also created perverse outcomes. More inducements to focus on drugs necessarily
meant less emphasis on rape, murder, and other crimes (240, 243). Law enforcement now had an
incentive to “find” a connection between property and crime. It was better to
arrest people in their homes, so that the house could more easily be seized. It
was better to wait until drugs had been sold, so the confiscated booty was cash
which could be kept, rather than drugs would need to be destroyed. (153-154)
Other policies
also contributed. The government began to sell surplus military equipment to
the police (158). The National Guard’s presence was increased and its roles
were expanded into standard police activities (36, 179-180). Homeland Security
introduced more funding and more rationales to militarize (242, 254). The
conflation of border security and the drug war led to more federal military
activity in police matters (244). The drug war also led to the marriage of
police and multiple military branches: the Navy intercepted boats that the
Coast Guard could search and seize (206).
One irony is that
militarization often makes encounters less safe. In discussing the use of
flash-bang grenades, Balko notes that they’re useful when dealing with
immediate threats. But in raids for nonviolent offenses (far more frequent), “sowing
confusion only increases the potential for violence…[You] can’t first claim
that the use of flash-bang grenades to stun and confuse people is critically
important, then claim that seconds after the device goes off, those same people
(many of whom have also just woken up) should be cognizant…” (278)
The presidents
The War on Drugs
is a significant piece of the militarization puzzle. Nixon and Reagan are the
most famous presidents in this realm. But Balko notes how presidents from Johnson
through Obama have been surprisingly active in enhancing police activity.
Johnson was
effectively described as soft on crime by the Republicans—as Nixon emphasized
the issue in the 1968 election. Then, with the riots in the summer, it became
politically advantageous for both parties to get “tough on crime”. Johnson was
probably softer than the presidents to come—both in terms of emphasis and
preferring cash and social programs over force. Still, he created the first
major federal agency to deal specifically with drugs—what would later become
the DEA. He also greatly expanded the Law Enforcement Assistance
Administration—the first agency to “stream federal funding, equipment, and
technology directly” to state and local law enforcement. As with other federal
grant examples to states, this is a wonderful way to enforce a policy cartel:
go with the federal approach or lose funding (64-70).
Nixon didn’t
“declare war” on drugs right away, but his early rhetoric was “already slipping
into combat fatigues.” (70) In policy terms, Nixon was also quite active
(although the details are too much for a review); Ford and Carter stepped back;
and then Reagan ran with the ball again.
The Reagan Administration’s
first public policy change was to enhance the role of the military in the drug
war (145). It got much more active with civil asset forfeiture (141, 146). It
focused most of its efforts on marijuana as a gateway drug. Politically popular
with the public, Congress passed a big, bipartisan Crime Bill in 1984 before
the election—with no real debate (151-152). And in 1986, Reagan connected drugs
to national security, spending more money and promoting more militarization
(157).
Bush I is infamous
for using crime to help him rout Michael Dukakis in the 1988 election. But his
biggest contribution was choosing William Bennett as “drug czar.” Bennett’s rhetoric
was his innovation: “to infuse it with morality…The man who often struggled to
control his own indulgences was ready to unleash a full federal arsenal of
force on people whose indulgences he personally found immoral.” (163-164)
Those who wanted a
lighter approach to the “war” had high hopes for Bill Clinton (especially as a
former pot smoker). His rhetoric was less inflammatory, but he was still heavy-handed
on policy. Agencies were allowed to become less transparent; his drug czar was
an actual retired general; and his “troop to cop” program formalized the
militarization trends. Balko’s biggest beef with Clinton: his “one strike and
you’re out” in public housing served to incentivize police raids on the poor in
particular—who could be evicted even if they were not directly involved in a
crime (193-195).
The Clinton years
also saw the first state-led push toward legalized marijuana. But Clinton and
then Bush II warred against this by pushing for federal law to supersede state
law (215-217, 250-252). Bush II added SWAT team raids on legal businesses
selling pot to cancer and AIDS patients for medicinal use (205). So much for
federalism and states’ rights.
Bush II and his
drug czar John Walters used 9/11 to further foment the drug war, connecting
terrorism to drug use through galling propaganda. The government ran ads
claiming that drug use supported the Taliban and therefore terrorism. The
reality is that the War on Drugs is—by definition—the direct cause-and-effect
to sending money to the Taliban and other groups within organized crime (250-252).
Obama was similar
to Clinton: you’d expect a lot more, but he did not deliver and was worse than many
other presidents. Obama criticized Bush for cutting federal police programs and
then enhanced them when he was elected, increasing spending by $2 billion in
2009 (247-248). All of this served to boost militarization, SWAT teams, and
multi-jurisdictional anti-drug task forces (218-223). Obama also stepped up
federal raids on state-legal marijuana activity—as well as raids on immigrants,
doctors, and pain clinics (301).
We don’t know if Joe
Biden will be elected president. But he is one of the “stars” of the book,
given his legislative passions and pursuits—and easily its most prominent
legislator.
Biden commissioned the report that led to increased civil asset forfeiture in
the 1980s and authored the resulting civil asset forfeiture bill (140, 146). He
coined the term “drug czar” in a 1982 article. Later, Biden “savaged Bennett
and Bush’s drug plan—for not going far enough”, saying it was “not tough
enough, bold enough, or imaginative enough to meet the crisis at hand.”
(167-168) In 1994, Biden authored the “Violent Crime Control and Law
Enforcement Act”—a “community policing” bill that, without sufficient
direction, ironically ended up funding more militarization (218-219). In 2002,
Biden wrote the RAVE Act, which made business owners liable for selling
“paraphernalia” used at rave parties—such as bottled water and glow sticks
(257). And as noted above, Biden was behind Obama’s push to fully fund a
federal police program (247-248).
Who else is to blame? Where do we go from here?
The data are clear
on these matters. Balko describes the work of Peter Kraska (206-223) as he
mined a field that had gone untouched. Kraska documented the “two-decade
insurgence of militarism into just about every city and county in America”—what
he called “the militarization of Mayberry.” (207) Balko makes clear that this has
been a bipartisan effort—from LBJ and Nixon through Bush and Biden. One fruit
of this was tremendous growth in the relevant bureaucracies, resulting in
inevitable overlaps and inefficiencies. (180)
But the beliefs were
so prevalent—in politics and in the general public—that it’s difficult to aggressively
assign blame. If you were opposed to the consensus, you would have been laughed
at or worse.
The GOP has the stronger reputation on crime. But often, Democrats felt
pressure to go along. Other times, they seemed quite content to go along—or
even, to lead the charge (67, 72, 146, 151-152, 167-168).
The pattern of
less famous abuses did lead thoughtful and engaged people—especially those
enmeshed in enforcing the system—to reconsider their approaches. Balko
describes the “Second Thoughts” conference about the drug war in 1997 (224ff).
And many police leaders have worked to re-emphasize community policing. Balko describes many of
these efforts throughout the book (97ff, 189ff).
Balko concludes
with a call to reform. He begins with a riveting story that should stick in our
collective memory: Cheye Calvo, the mayor of Berwyn Heights (309-315), had a
horrible run-in with the police who mistakenly accosted him and his family in
their home. (Google him if you don’t remember.) His fight to pass a transparency
bill (315-318)—what should have been a slam dunk, but was not—and the resulting
data (318-320) were fascinating and sobering. From there, Balko lays out policy
proposals—from ending the War on Drugs to more modest ideas such as
transparency, community policing, and accountability (321-332).
The public’s desire
for safety and fear of criminals has been a key driver in motivating public
officials to take action. At times, terrible results have led to questions and
some pushback. That said, other high-profile failures—such as SWAT ineptitude
and cowardice with school shooters (e.g., Columbine, 230-232)—have not raised
much concern. And the extension of SWAT activity into gambling, bingo,
barbershops, immigration, massage parlors, child pornography, and
cockfighting—from police violence as first-choice rather than last-resort—has
not raised many alarms.
The high-profile
incidents in the 1990s—like George Floyd and Breonna Taylor today—are probably
necessary to get the attention of a “rationally ignorant and apathetic” public
(200). Balko also notes the good news that has come with technological
advance—that it’s easier to record bad behavior and share it with others
through social media (242-243). But as he notes at the end (331-332), without
public passion against the status quo and vested interests such as police
unions, little can be expected to change.
Although not as
dramatic as the Warren Court in the 1960s, the courts continued to weaken
constitutional rights in this realm. Balko sprinkles this discussion throughout
the book.
For many years,
the two parties even avoided blaming each other for mistakes and misuses of
power. But partisan and ideological flipping began with some prominent abuses
of power—Ruby Ridge in 1992, the Branch Davidians in 1993, and Elian Gonzalez
in 2000 (200-206). The latter two were useful politically for the GOP, but all
three put conservatives in the strange position of critiquing law enforcement.
Balko (34-35)
cites technological advance after WWII (e.g., cars, radios) that improved
police performance but separated the police from the community, leading almost
inexorably to greater animosity.
