In the weeks since police officers killed George Floyd and Breonna Taylor, mass uprisings—and a violent, uncompromising response from police departments across the country—have provoked a national conversation about the role of policing in the United States. We have had such conversations before, but something in this conversation is importantly new. This time, calls to defund and abolish the police have found their way into the mainstream. And the question “What is policing for?” lies at the heart of the abolitionist movement.
The language of “abolition” is intentional. Activists and scholars such as Angela Davis, Mariame Kaba, and Ruth Wilson Gilmore trace the historical roots of the current criminal justice system to the aftermath of the Civil War. With the end of chattel slavery, whites created or expanded police, prisons, and other institutions to maintain America’s racist hierarchies and to ensure access to cheap labor. Contemporary abolitionists argue that today’s police departments do not “serve and protect” policed communities, but inherit the priorities of their 19th century forebears. To borrow Michelle Alexander’s memorable phrase, mass incarceration is “the new Jim Crow,” and the police are its guardians. And just as today’s “carceral state” carries on the legacy of chattel slavery, so too today’s abolitionists take up the mantle of their predecessors.
Reformists resist the call for abolition, because they believe that law enforcement is an essential part of a society based on laws. Almost everyone who has observed the state’s response to recent uprisings knows that there is something wrong with today’s police departments, and that the problem goes far deeper than “a few bad apples.” Nonetheless, reformists insist that policing as such is necessary and inevitable. To the reformist, the job of the police is to enforce the law; if America’s police departments assault and murder Black people, then they fail as police departments.
But abolitionists argue that police departments in the United States are, in fact, operating precisely as designed; that actual police departments serve oppressive ends, because this is a role to which policing as such is naturally suited.
I attempted a contribution to this abolitionist argument in “Against the Managerial State: Preventive Policing as Non-Legal Governance.” There, I focused on a specific, but significant, aspect of contemporary policing: Unlike detective work, preventive policing does not aspire to furnish the state with the resources with which to prosecute those whom it suspects already have committed a crime. Rather, preventive policing aspires to create conditions in which crime is unlikely to occur in the first place. Proponents of preventive policing argue that it helps to maintain “law and order,” and to protect “law-abiding citizens” from criminals. On the contrary, I argue, preventive policing is an active threat to legal governance.
Preventive policing takes many forms. Some strategies aim to make people feel watched. In her 2015 book Ghettoside, Jill Leovy documents the Los Angeles Police Department’s practices of leaving unattended patrol cars in targeted areas, to signal that an officer might be just around the corner; and of driving patrol cars aimlessly around “high crime” neighborhoods with the lights flashing, to signal that the department is on high alert. Other practices aim to detain putatively dangerous people before they do any harm. In an investigatory traffic stop (or “Terry stop”), patrol officers cite minor infractions, like failing to signal a turn, to justify pulling a driver over. But this is merely a pretext for the officer to look for contraband drugs and weapons, which then justify confiscation and arrest. Political scientist James Q. Wilson, a major advocate of preventive policing, argues that these kinds of practices enable the police to identify people who are likely to commit violent crimes, and to remove them from their communities, thereby containing any future threat they might pose.
There are many reasons to worry about these kinds of practices. Some, like New York City’s Stop-and-Frisk program, are extraordinarily invasive. And as legal scholar Randall Kennedy observes, when combined with racial profiling and a racist police culture, preventive policing increases face-to-face interactions between the police and Black subjects, which in turns increases the risk of police violence against Black people.
But the problems with preventive policing run deep. Sociologists Charles R. Epp, Donald P. Haider-Markel, and Steven Maynard-Moody have observed that those subject to Terry stops find themselves shaken by the experience, even when the interaction goes smoothly, and even when the patrol officer treats them with respect. Terry stops undermine drivers’ trust in the police and make them less likely to call the police for assistance in the future. And these reactions do not simply reflect drivers’ general anxieties about the police; people react much differently when police officers pull them over for clear safety violations.
The problem is that preventive policing differs essentially from legal governance. Law characteristically governs legal subjects in a distinctive manner: It presents them with a body of legal norms, and demands that they defer to these norms in their interactions with one another. On this point, legal philosopher Lon Fuller contrasted law with “behavioral conditioning” of the type associated with B.F. Skinner. Through conditioning, one person might attempt to direct another person’s activities without addressing them directly, but simply by fostering positive or negative associations with specific activities. Fuller argued that, unlike behavioral conditioning, law pays tribute to legal subjects’ capacities for rational self-governance by providing them with opportunities to regulate their own activities in conformity with their legal obligations.
Preventive policing is more like behavioral conditioning than law. It aspires to manage legal subjects’ activities, not by demanding that they respect legal norms, but by creating an environment in which it is extremely costly or even impossible to break the law. In doing so, preventive policing treats legal subjects as though they cannot be trusted to comply with legal norms – or even more radically, as though they are wholly beyond the law’s authority. Preventive policing thus sends a message to legal subjects: that they are “outlaws” in something like Elizabeth Anderson’s sense—people who lie outside of the law. That is why Terry stops leave people so shaken, even when the officers who pull them over are polite. They sense that the stop calls into question their relationship with the law itself. (By contrast, Epp, Haider-Markel, and Maynard-Moody found that drivers pulled over for a clear safety violation tend to react very differently. Nobody likes to be pulled over, but “safety stops” do not adversely affect their attitudes toward the police, or make them less likely to call the police when they need assistance. In spite of the very real cost of a ticket, such interactions affirm the driver’s status as a legal subject.)
In light of this contrast between preventive policing and legal governance, it should come as no surprise that Black and brown communities are disproportionately subject to preventive policing. Black activists and scholars have long argued that anti-Black ideology ties Blackness to criminality. George Yancy writes of white women clutching their purses when they share an elevator with him, because the white imagination casts him as a criminal—not in the sense that he actually has committed a crime, but in the stronger sense that he, as a Black man, stands outside to the law by nature, and so might commit a crime at any moment. Little wonder, then, that racist white women do not trust Yancy to respect their legal property rights—or that policymakers and police departments do not trust Black communities to obey legal norms.
But the choice to rely on preventive policing in the state’s regulation of Black and brown people is not simply a reaction to existing racist ideologies. Rather, preventive policing plays an active role in the perpetuation of racist tropes. By subjecting Black subjects to preventive policing, police departments send a message: “These people lie beyond the law.” That is a message that those subject to preventive policing, and those to whom these practices are sold in mass media depictions of the police, receive clearly. And this message helps to maintain the boundary between (white) civil society and the (non-white) state of nature (to echo Charles Mills’ deployment of these concepts). This is what preventive policing is for—not the maintenance of “law and order,” but its opposite. Preventive policing draws a boundary around the legal community, and locates policed subjects on the wrong side of those boundaries.
This problem with preventive policing is not simply the result of its combination with our racist context, or with a toxic police culture. It reflects preventive policing’s characteristic strategy of pre-empting legal subjects’ self-governance under the law. So we should be wary of thinking that we can reform preventive policing simply by applying it more equitably to legal subjects regardless of their race. For one thing, racist ideologies will tend to inform the ways in which these practices are read. (Though all airline passengers are subject to the TSA’s screening processes, such processes still play a role in the maintenance of Islamophobic and racist associations of Islam and brown people with terrorism.) But beyond this, the equitable distribution of preventive policing would at most redraw the boundaries on the law’s authority, not by bringing Black people within those boundaries, but by exiling more people beyond them.
This argument on its own does not amount to a complete case for abolition of the police, but it does reveal a deep tension between preventive policing and legal governance. Within the abolitionist tradition, arguments like this call into question the assumption that policing is an inevitable part of a legal society. They illustrate the urgency of a skeptical attitude toward policing. We should not be asking, “Can we afford to do without police?” We should ask instead: “How much policing can we afford to keep—if any?”
Photo: New York Police Department officer observes Black Lives Matter protesters in New York City, June 7, 2020. (Photo by Antony Quintano, via Wikimedia Commons)
John Lawless
John Lawless is assistant professor of philosophy at Utica College, where he teaches social, political, and legal philosophy. His research concerns the relationship between freedom and legal governance. Find more information, including links to recent publications, at his website: www.johnlawless.org.
