Monday, August 17, 2020

Review of Radley Balko’s "Rise of the Warrior Cop: The Militarization of America’s Police Forces"

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] (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.[2] (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.[3]

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).[4]

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).[5] 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.[6] (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).[7]

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.”[8] (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.[9] 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.[10] (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.[11] 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).[12]

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.[13] 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.

[1] After the execution of Julius Caesar, elite troops were used as bodyguards (Praetorians). Soon, they were used to investigate serious crimes, provide security, gather intelligence—and even to fight fires and collect taxes. The military were not allowed into Rome, so the eventual blurring between the police and the military caused troubles until the Praetorians were disbanded by Constantine in 312 AD (2-3). Balko (4-5) also describes English efforts, especially before the Norman Conquest, the English used a localized, hierarchical police-like system. The officers were called tythings, shires and reeves—the combination of the latter two leading to our word “sheriff.”

[2] All of these started as voluntary before evolving into paid positions.

[3] 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.

[4] The pop culture references can cut both ways. Balko (307) notes an episode of LA Law, The Simpsons, and Chapelle’s Show. And of course, there are many movies dealing with rogue and corrupt cops.  

[5] Balko (240) shares a story where a cop in a sex crimes unit is frustrated to learn why she had so few resources: most of it was diverted to drug crimes, where the incentives were.

[6] Balko (154) cites research that police were much more likely to stop cars leaving the city (when they had cash) than entering the city (when they had drugs). Balko (272) notes a Catch-22 in police funding: “If police fatalities go up, it’s an indication that criminals are getting more dangerous and cops need more firepower. If police fatalities go down, it means militarization is working.”

[7] Balko (142) notes the various rationales for a drug war: prejudice (as with George Wallace); the Bible (as with the “Moral Majority”), and intellectual (as promoted by Robert Bork, James Q. Wilson, James Burnham, et. al.).  

[8] Balko (164) throws hammers at Bennett: Noting his previous experience as head of the National Endowment for the Humanities and the Department of Education, “he had run both agencies as a proud moral scold. Which isn’t to say he was a prude…an obese man, a chain smoker…[with a] serious jones for video poker.”

[9] It’s useful that the book was written before Biden was running for president so that it is not seen as partisan.

[10] See: Lawrence Wright’s The Looming Tower for a parallel in bureaucratic intelligence failures surrounding 9/11.

[11] Another example: Since many people were racists during the Progressive Era, should we crush or merely criticize those who used Darwinism and “race science” to support rank racism and eugenics policies?

[12] 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.

[13] 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.


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