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Jake Monaghan, "Just Policing" (Oxford UP, 2023)
01:01:21
An interview with Jake Monaghan
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Welcome to the New Books Network. My name is Tom McInerney and I'm here today to interview Jake Monahan on his 2023 book entitled Just Policing, which was published by Oxford University Press. It's my pleasure and honor to welcome Jake here today. Jake is a philosophy professor at University of Southern California, assistant professor of philosophy, and has a focus on political philosophy and in Particular policing, which is the subject of this very timely and important book. I have to say I really love the book. I think it's extremely well written and really looking forward to, to this conversation with Jake. So welcome.
- [02:56]
A
Thanks so much. Really happy to be here. So let's start.
- [03:02]
B
From the beginning, so to speak, with. Policing has been very much in the news over recent years and maybe in the past year for different reasons, but certainly beginning with the George Floyd murder and subsequent developments, it's been top of many people's minds and subject of a lot of political debate and discussion. I'm curious how you got to this topic. And as a philosopher, what made you interested in policing and decided to write this book?
- [03:40]
A
I first started thinking about policing in a sort of serious philosophical way when I was a grad student. The reason is I was in a grad seminar at the time on medical ethics, and I was sort of working up this theory of professional ethics that I thought applied pretty well to medicine. Meanwhile, I had these kind of background interests and questions about justice and political legitimacy and political obligation. And there were also sort of contemporaneously these political debates about policing. So before George Floyd, there were a bunch of other cases that gave rise to the Black Lives Matter movement. And if you remember, sort of early on in the Black Lives Matter days, there was this Blue Lives Matter rejoinder. And I thought this was just really kind of absurd, and not just absurd, but like a rejection of the, like, basic kind of, you know, professional ethics of what it is to be a police officer. And so I, you know, I had this view about professional ethics that I had been working on and some thoughts about political legitimacy. And it seemed like there was this kind of obvious project to take up, which is to think about the ethics of being a police officer. And it seems to me that given that police officers take on voluntarily this life saving and protecting and serving role, that there is an additional source of wrongdoing. There's an additional wrongmaking feature when a police officer uses force or kills someone. And so I wanted to explain why this Blue Lives Matter response was like not only misunderstanding the ethics of policing, but actually pernicious and sort of setting us back in certain ways. And that made me start thinking about questions about the special obligations of law enforcement. It made me start thinking about circumstances in which it would be unjust for police officers to wield certain kinds of political power. And that gives rise to this need to come up with a theory of discretion to try to understand how it is that police officers could be justified in not enforcing a particular law, say.
- [05:49]
B
Okay, I mean, what strikes me with this is the extent to which you're engaged in an analysis of a really current problem and really current public policy and political issue, which is a little bit different from the way philosophers have worked sometimes in the past. And my own background, I've done work in philosophy of law, and the tendency is a bit more detached or a bit more abstract and analytical in a kind of ideal theorizing point of view. I see your work as really part of an engaged philosophical movement that grapples a lot with the social scientific aspects of the philosophical problems that you're investigating. Is that a fair representation? And how do you think about the method that you followed and what you were trying to do in this book?
- [06:59]
A
Yeah, I think that's definitely fair representation. So I think of my work as in what some people call the PPE tradition. So rather than ordinary political philosophy, this is philosophy, politics and economics. And one of the ideas is that we're using some of these analytical tools from the social sciences to try to help us think about ordinary questions of political philosophy or justice or legitimacy. In a lot of cases, this requires not only taking on the tools of some of the social sciences, but also it requires just investigating some of the empirical sort of facts of the issue. And relatedly, I think of my work as in the non ideal theory tradition. So this is a kind of contrast to the way that political philosophy has tended to operate in the shadow of John Rawls. So Rawls drew this distinction between ideal theory and non ideal theory. And he thought, our goal is, let's think about what a just society would look like. And this will help us think about what the rules of that just society and the institutions of that society would look like. And it sort of makes sense, right? You think, well, the just rules will be rules that we all follow. So Rawls has this kind of full compliance idealization. And some political philosophers have taken that a step forward, and they've thought that the method of political philosophy is to abstractly determine some ideal and then chart the course to get there. But one of the things that I've started to think is that this introduces some mistakes in our theorizing. So as an example, you might think that an ideal society will have full compliance, or you might think that we'll have full enforcement. Maybe all of the laws on the books are perfectly just, and we've perfectly funded the police department. And so therefore, part of just society and part of just policing is full enforcement. But I think that when you reflect on the way that our legislatures actually look, the way that they actually operate. You should anticipate there being lots of bad laws, vague laws, outdated laws, whatever it may be. And so this makes me think that in our non ideal world, full enforcement or full compliance are not actually desirable. And so that means that the ideal theory approach misleads us by suggesting that something like full enforcement or full compliance is an ideal. But I think that it's desirable only when you're doing ideal theory. When you stop doing ideal theory, I think it pretty clearly looks no longer desirable. And so that means that we need a non ideal theory of what just policing looks like. And so in certain cases, I think that you just kind of need to wade into the empirical data, you know, whatever the contemporary social science is, to try to think about these sorts of things. As one other example, one of the principles that I appeal to in the book is this principle of proportionality. So it may be the case that there are certain instances of police power that are too forceful. The force isn't matching or fitting the end of the force. Now, in order to figure out whether say, high speed vehicle pursuits count as disproportionate, you'll probably want to know something about how often high speed vehicle pursuits result in police officers crashing their cars and being injured or dying. How often pedestrians are taken out. Right. Like what is the outcome of your modal high speed chase? If you want to know whether it's proportionate, you kind of have to have that information.
- [10:27]
B
It's not just a normative question. There's also an empirical reality there that bears very much on that question. That makes a lot of sense to me. What just from, from an overall point of view, I mean, in recent years, you know, as, as one of the outcomes of the George Floyd murder and the, and the, and the resulting Black Lives Matter movement, one of the arguments that, that people were making was to defund the police. And now we also see these kind of anarcho libertarian views that, that have emerged in some of the more right wing movements now. But you defend the police as, as an important institution somewhat against the time. But I, I'm curious how you, how you defend that, that position and, and what, what your thoughts are on that.
- [11:26]
A
Yeah, so one way of thinking about objecting to the police is by thinking about their historical origins. So this is the kind of argument that you'll hear from a lot of abolitionists. They'll say things like police departments are rooted in slave patrols or like, you know, colonizers, or that sort of thing. I think that the historical record suggests that this is not actually true. So if you look at police departments in the American south, for instance, what you find is that the police force, or a night, like a formal night watch, proceeds the slave patrol. So in a place like Charleston, you had urbanization, and so you had like a formal night watch. Before the formal night watch was tasked to engage in slave patrol. In other places that aren't urbanized, the slave patrols came first. Now, what this suggests to me is that there's an inherent link between urbanization and policing. In my view, that link is that urbanization is the sort of thing that causes lots of conflicts, not necessarily because we're morally bad people, but just because we are people who, as Brandon Deliposo likes to say, we metaphysically extend into space. So we make noises and we make smells and we bump into each other. And dense places are places that have more opportunities for conflict and as a result, require more rules, and further, as a result, require some kind of enforcement for that. So in my view, as long as you have density, as long as you have urbanization, you're going to have an inherent need for agencies of social control. And that means that there is sort of no getting rid of policing. And I think that this follows when you look at the way that abolitionists will suggest we replace the police. In my view, the abolitionist alternatives always rely on a kind of policing. So in my view, the abolitionists tend to want to get rid of professional police departments, but they don't want to get rid of the activity of policing. And so that's one of the reasons why the book is called Just Policing. I'm interested in evaluating the activity here, and I think that, like the abolitionist complaint about the agency itself ultimately misses the point. So, like, I don't. I don't think that the lapd, for instance, is like an amazing police agency. There are lots of complaints that you can have about it. But getting rid of the LAPD is not to get rid of policing. And when we think about the kinds of, you know, alternatives, you know, whether they're community based systems of, you know, patrol, or whether they're violence interrupters, we're going to have to think about how we want these people exercising their power. And so that's my basic kind of reply to the criticism of professional policing from the left or from those who are broadly kind of sympathetic to police abolition. I think that one of the mistakes that some anarcho libertarians or some anarcho capitalists make is they tend to think that as long as police policing is voluntary that it no longer counts as policing. But I don't think that's true. I mean, I think that we often will opt into various kinds of informal or formal social control. And just because it's voluntary doesn't mean it no longer counts as a kind of policing. So certain anarcho libertarians or capitalists will come down on the side of a kind of police abolition. But I think in a lot of cases this ends up being a conceptual dispute rather than a dispute about like what people should be doing or whether we should have agencies of social control. And I should say also the classic minimal state libertarian. So folks like Robert Nozick, well, they end up accepting a legitimate role for the police. They direct their critiques instead towards things like overcriminalization or moralizing or paternalist of laws. And so I think that we should, you know, be critiquing these laws. But the like anarcho libertarian or anarcho capitalist flavor of abolition, I think like the left wing flavor of abolition ends up reserving or maintaining a space for some kind of formal social control. And that's what I call policing.
- [15:46]
B
Well, there's, it seems that there's a continuum in terms of the, at some level policing is, is about social norms. Right. And as your, I think your description of the urbanization and how people living together in confined spaces, there's a certain amount of activity and I think one of the good examples you use there in talking about common spaces and looking at the uses of public parks by different groups and there's a, there's a gradation between policing to say enforce laws, let's say against violence in, in that public space versus a, a softer approach to trying to get citizens to behave harmoniously in those kind of public spaces. Right. I mean it's not, it's not just like a, of one size fits all approach to policing. Right. They're gradations in terms of how they need to interact with the other social forces.
- [17:05]
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- [21:32]
B
Craig makes a lot of sense. That's a great illustration. And I'd mention I really like throughout the book. I mean, the illustrations and historical examples are. It's really a great work of research. And the things that you found. Now, one of the things you mentioned, this idea of discretion, and you wrote that the idea that the police should mechanically apply the law is a myth. What do you mean by that and what are its implications?
- [22:07]
A
Yeah, so, well, I think the place to start here is with this idea that the police ought not to enforce the law in certain cases, or there are certain instances of police power that are objectionable. And so, as I said, when I started thinking about this, I had the thought that, well, this is unjust. There's some legitimate complaint that someone can make, and so the police, they ought not to do that. Now, the response from most philosophers is usually, isn't this a violation of the separation of powers? Right. Isn't the police officer declining to enforce a law sort of like them taking up a legislative power rather than their rightful sort of executive power? The first step, I think, in correctly responding to this reasonable worry is that there is no such thing as Full enforcement. Now, if you go to, like, the policing textbooks, you'll see this idea that full enforcement is a myth. So this isn't like a phrase that I coined. I sort of borrowed it from some, from some policing textbooks. But okay, so if you have this idea that full enforcement is a myth, there is no way for police officers to fully enforce the law all the time, right? And now this is because some laws are vague and require interpretation. Also because officers have only so many resources, and so they have to prioritize their resources. The result of this is going to be that the police can only enforce some amount of the law, and that means that they're inevitably in a position of exercising their discretion. So some more sophisticated thinkers will say things like, okay, well, we don't need full enforcement, but what we need is faithful enforcement of the law. So this is a position that Joseph Rass takes. You have to ask them what it means to faithfully enforce the law. And in certain places, Ras seems to suggest that faithfully enforcing the law entails not ignoring any particular kind of enforcement. So police agencies can't just decide, here is a particular law that we're not going to enforce at all. But if you look at the way that policing operates, right, if you look at arrest records, if you read ethnographies, it's just impossible for the police to enforce, you know, like, every single law, at least a little bit. And so this idea of faithful enforcement, I think, ends up being almost empty. It's not entirely empty, but it doesn't really tell you what police ought to be doing. And so the response then, I think, is to recognize that what the law does is empower officers by giving them tools rather than giving them marching orders. And if this is your vision of the relationship between the legislature and certain executives and the bureaucracy, then you end up needing to kind of revise your thinking about what it means to satisfy or achieve separation of powers.
- [25:06]
B
That's a very interesting way to conceptualize it. And you illustrate, in one point, you illustrate the practical aspects of how, in, let's say, zero tolerance policy, you know, how, how those types of approaches to enforcement really run up against a, a brick wall at a certain point, right, that this, the system just can't cope. And, and the police know this, right? Sometimes you've seen these interactions, right, where the police may see somebody doing something illegal and saying, please don't, you know, I don't want to arrest you, because then that means I have to go down to the station, I have to fill out paperwork for for four hours. And this is really a stupid thing because I know tomorrow you'll be back here doing the same thing again.
- [25:56]
A
Right? That's absolutely correct. So you will find this kind of problem in virtually every single police ethnography. Right. This is just an essential part of policing. So there are attempts to take discretion away, and they. They always backfire. And it's sort of instructive the way in which they backfired. So one example, our mandatory arrest policies for domestic violence. So now, you know, historically, the police didn't take domestic violence all that seriously for, you know, various reasons. And the thought was, well, let's make the police officers have to arrest someone in cases of domestic violence so that we can take away their discretion. Right. But now, of course, what happens here is that the police officer has to decide interpretation the situation. Does this particular bit of violence, does this altercation count as domestic? This is going to depend on your jurisdiction and how the jurisdiction understands what a domestic relationship is. But probably there are some listeners who are in a relationship, and if you were to ask them, is this a romantic relationship or not, they may say, I'm not entirely sure. This is a kind of vague part of our lives in certain cases. And so even this attempt to eliminate discretion in this case is not going to work. Right. Going to be some interpretation happening. And on the other side, you also, as I mentioned, have the issue of prioritizing your resources. So, you know, when you make an arrest, you're taking yourself out of the rotation in a certain sense for however long it takes to process the arrest. During that time, you are not patrolling. During that time, you're not responding to calls for service. And so every decision to enforce the law is a decision not to enforce the law in some other way.
- [27:46]
B
Right, that makes sense. Yeah. So there's. There's. Even if it seems that there's not a choice being made, it's de facto it is. There is a choice being made to enforce one law versus something else.
- [27:59]
A
Yeah, that's absolutely right. And it really seems to me like as a kind of matter of like, you know, police psychology or something, this is the sort of thing that they're aware of. There are certain things that you are prioritizing. There are certain things that you're not supposed to prioritize. In certain cases, you're responding to kind of like management. There's no quota, but there are productivity expectations. And in other cases, you're kind of taking an initiative on your own. And so some officers write more tickets than others. Some officers are more interested in trying to find drugs than others, so on and so forth. So now we have this question about what is the just use of police discretion? How should we think about that? But notice this is now a very different question from is it permissible for police officers to use discretion or to decline to enforce the law? If you've sort of followed me this far, then you have to accept that that's unavoidable.
- [28:57]
B
From a kind of marketing standpoint. Is there a different term? I mean, I'm just thinking about how public reaction to the notion that police would be exercising discretion to not maximally apply the law. That seems to run contrary to the zeitgeist and public opinion on policing. Now, are there ways of couching this or explaining the reality to the public in a way that makes it more palatable?
- [29:30]
A
I find this really, really fascinating because if you look to the history of policing, you don't even have to go back all that far, right? If you just think about the way that people in the United States have thought about policing over the past century, the attitude seemed to me to swing pretty wildly back and forth. So the standard way of kind of breaking up the big chunks of police history is we have first the political era. And this is when the machines, the political machines are running cities. And, you know, if you vote for candidate A and candidate A wins, candidate A fires the entire police department and replaces them with, you know, their voters or whatever. And there's like a really tight connection between particularly local political sentiment and the way that officers, you know, wield their power. There was backlash to this in certain cases, right. The police agency looks like they're not actually a police agency, but like an organized gang or something like that. And so you've got, in the middle part of the century, this move to professionalize the police, and that involves a kind of professional isolation. So we don't want the police just doing whatever it is that the executive or, you know, the kind of popular sentiment suggests. Right? And if you think about the kind of backlash to, like, secret police under authoritarian regime, so, you know, the Nazis or something like that, it kind of makes sense, right? It's no surprise that in the United States we, you know, put the director of the FBI on a renewal cycle that is not on the same pace as the presidential cycle, because we don't want the head of the FBI to be, you know, just like, say, the head of the Department of Transportation. There's, like, a particular kind of professional, isolated policing that they ought to engage in to protect us. From things like authoritarian overreach. And then, you know, in the 80s and 90s you get a backlash to the professional isolation. Right? The LAPD is like maybe the paradigmatic professionally isolated police force. And there was in the 90s, obviously really substantial and justified mistrust and anger at the lapd. And so you get this move towards the community policing era. And what I find really entertaining about this is that in the 90s and early 2000s, community policing was broken windows policing or a certain kind of broken windows policing. It was pro discretionary, pro cracking down on loitering and these sorts of things. But now when we think of community policing, right, we associate community policing with the rejection of professional policing. Right? Community policing is often an abolitionist alternative to the LAPD or something like that. And so I think popular sentiment here is kind of all over the place. And the way that I would like to suggest people think about this is that there really is something valuable about having a kind of professional firewall in between the specific decisions that the police chief or an individual police officer makes and you know, the like kind of bare majoritarian sentiment. Interesting. Tis the season for all your holiday favorites like a very Jonah's Christmas Movie and Home Alone on Disney. Did I burn down the joy? I don't think so. Then Hulu has National Lampoon's Christmas Vacation. We're all in for a very big Christmas treat. All of these and more streaming this holiday season and right now save big with our special Black Friday offer bundle Disney plus and Hulu for just $4.99 a month for one year savings compared to current regular monthly price. Ends 12 watt offer for ad supported Disney Plus Hulu bundle only then $12.99 a month or then current regular monthly price 18 plus terms apply. Meet the computer you can talk to with Copilot on Windows Working, creating and collaborating is as easy as talking. Got writer's block? Share your screen with Copilot Vision to help spark inspiration and use Copilot voice to have a conversation and brainstorm ideas. Or maybe you need some tech help with Copilot Vision. Copilot sees what you see. Let Copilot talk you through step by step guidance so you can master new apps, games and skills faster. Try now@windows.com copilot let's get a little.
- [33:37]
B
Bit into the political theory because one of the things that struck me about the book is when you are discussing some of the morality of policing decisions that it implicates the underlying morality of the laws that are being enforced. So for instance, a Law against, let's say, drug use, individual drug use. The question of whether the police should be enforcing that against nonviolent drug users seems to implicate the, the, the prior question of whether the law itself was just and, and similarly loitering or other non violent kind of public nuisance laws. Is there a way to distinguish between the morality of the underlying law versus the morality of the police enforcing those underlying laws?
- [34:44]
A
I think that there is. And I think that this is actually really important, at least for the kind of project that I'm, that I'm working on. So you're right that there are concerns about police discretion. Right? So suppose, suppose you think that, you know, I've successfully argued that there's gotta be some room for police discretion. That doesn't mean that you have to love it. That doesn't mean that you have to want, like to expand the scope of police discretion. Say, you can still think that there are like really good reasons to worry about police exercising their discretion. And I think so. One way that you can try and fix this problem is by depriving them of certain tools. So if you think that it's wrong for police officers to be arresting people for soliciting sex, well, then you can just change the law and take that prohibition off the books. But I think that we are always going to be in a position where our laws are going to be imperfect. Our attempts at developing criminal legal codes, they're often fraught. That's why the model penal code exists. It turns out that the state legislatures were making these inconsistent, sort of really difficult to apply criminal codes. And so I think that what we can realistically hope for is a more just criminal legal code. But I don't think that we're ever going to have a perfectly just criminal legal code. And that means that police officers are going to be in a position of being kind of thrust into these political disputes about whether we should have a particular law or not. So, you know, in a world without, or rather in cases where there is legitimate reasonable disagreement. So, you know, some people think that there's nothing wrong with buying and selling sex and other people disagree. I think this is like a genuinely kind of difficult case. You know, I'm a, I'm a liberal and so I'm on the side of letting people engage in these voluntary transactions. But you might worry that sex work isn't the sort of thing that's sufficiently voluntary. Okay. The thing that I want to suggest here is that this is a kind of problem that I think is sort of durable or long lasting, and we should not expect it to go away. And that means that there's always going to be a distinct question of political morality or justice. How should officers wield their political power given that there are these background disagreements about whether a particular law is permissible or not? And so one of the things that I try to do is come up with a framework for thinking about how officers can kind of navigate this sort of conflict. So it's definitely true that there are lots of unjust laws that we'll want to get rid of. But there's always the separate question about given that there will be some of these unjust laws, you know, how should police operate according to them? And further, one of the things that I want to say is that in a lot of cases, the trial system or the punishment system or the social systems that people sort of enter when they leave prison, well, these can have like really deep problems in them. It could be that like the misdemeanor system is just over congested and crowded and is not actually capable of producing justice. Or it could be that our prisons are dangerous and unsanitary and it's impermissible to send people to these places. And so you might think that, hey, here's a particular law that on its face is just, you're not allowed to drive a car without a license. And yet, given problems in other parts of the political system, enforcing this law would produce injustice. And so I think there are a class of laws that, given problems elsewhere in our political and social systems, we should think that although in principle this could be a just law, you could justly enforce it in the present circumstances it would be unjust to do so. I think this is the case for a lot of our low level, like misdemeanor laws.
- [38:52]
B
One topic that I'm interested the implications for philosophy of law is the question of the moral obligation to obey the law.
- [39:04]
A
Right?
- [39:04]
B
That's a long standing debate. Do we have an obligation in general to obey the law because it's the law? Are there implications or what do you see the implications are of this discretionary model of law enforcement for that view? Because you can run into the kind of paradoxical situation, right, where you have something that's the law, that if you defend the moral obligation to obey the law, one has moral obligation to obey it, but at the same time the police do not have a moral obligation or should not enforce that law on moral grounds.
- [39:48]
A
I think this is a really difficult question. So in the book, I largely avoid it sort of deliberately. I basically Follow Alan Buchanan's lead on this. So Buchanan, in this essay, argues that when we're thinking about kind of classic questions about political power, what we're really thinking about are whether it's permissible for agents of the state to exercise the power. And to think about this, we don't really need to think about whether someone has an obligation to submit or obey. Right? I mean, we can go back to Hobbes for this way of thinking. Hobbes is like, you know, the central authority gets to basically, I don't know, do whatever it wants. But he also thought that people had the right to resist punishment, and so it was permissible for the state to punish, and it was also permissible for people to resist that punishment. Right. So I think that questions of political legitimacy and political obligation come apart. And I think that figuring out questions about just in legitimate policing basically relies on thinking about when are police officers permitted to exercise their power, or on what grounds would they be permitted to exercise their power? So I don't have a lot to say about how this relates to questions about political obligation, but I do think that some people have offered some compelling responses. So I think Tommy Shelby's work in dark ghettos is the kind of view that's rather congenial to the way that I think about political obligation. He ends up arguing that, you know, the people who, so to speak, at the short end of the stick when it comes to policy, have weaker reasons to obey the law or to obey the police. And the reason is because he thinks that, you know, the foundation here is a foundation of reciprocity. If you're not getting anything from the state, you know, but. But grief or over punishment or whatever it is, then you don't have particularly strong reasons to reciprocate. Nevertheless, there are other reasons grounded in, say, the duty not to be cruel that are going to apply to you with the same stringency. So, you know, you could be one of these residents of the dark ghettos that Shelby talks about, and you might have weaker reasons to obey the law grounded in reciprocity. But your reason to not murder someone, right, to obey the law that says, you know, no sexual assault or something like that. Well, these are just as strong as anyone else's reasons. And so, I mean, I don't. I'm not committed to this way of thinking, but I think that it's pretty congenial with the way that I think about police legitimacy.
- [42:32]
B
There are different. Different levels of normativity of the law, and that. That makes a lot of sense to Me. And in the book, you talk a lot of the examples, and I'm not sure if this is just be for the. The sake of being able to illustrate the points or. Or because the issues are. Are more poignant, but there's more of an emphasis on street crime and. And those kinds of crimes as opposed to white collar crime. And given the predominance of white collar crime in today's world, I'm wondering what the degree to which your arguments apply to white collar crime. There are different kinds of surveillance techniques involved and then also different political legitimacy issues involved in terms of the exercise of discretion in white collar matters. Is that something that you've looked at and how do you think about that issue?
- [43:35]
A
You're definitely right that the book focuses on issues of street crime or, you know, quality of life issues in some cases. And this is because I'm mostly interested in patrol policing rather than, you know, investigation or detectives, that sort of thing. There has been, I think, some pretty good work on this. So, Luke, William Hunt has this. This nice book called the Retrieval of Liberalism and Policing. He's a former FBI agent, and so he's, you know, really keyed in to these questions about surveillance and stings and these kinds of. These kinds of issues. And so he's got a lot of interesting things to say about discretion in investigation and that kind of law enforcement and justifying otherwise illegal activity. So, like, you know, when you. When you have an informant go buy drugs for you or something like that. Right. How do we think about justifying this otherwise illegal activity? There's lots of things to say here, and I think Hunt's work on this is. Is pretty good. The reason that I don't focus on it too much is just because there's, you know, this other question about thinking about patrol. Right. The kind of discretion that people will, you know, exercise when they're behind the wheel or when they're on foot patrol or whatever it is. Right. But although I don't say anything about white collar crime in the book, I think it's actually relevant in a lot of ways. So one thing that white collar crime suggests is that the root cause theory of various kinds of crimes that are just really popular, particularly amongst abolitionists, you know, critics of the police, that view of crime looks pretty unattractive. Right. It's just simply not the case that as soon as someone leaves, you know, poverty and becomes wealthy or something, they lose all of their, you know, interests or temptations to engage in, you know, forceful or fraudulent behavior. And during the kind of Peak of the abolitionist, you know, public discourse. You saw op eds where people were suggesting that, you know, not only are like the regular police bad, but they're also ignoring all of this serious white collar crime like wage theft. But notice that this is a complaint about the allocation of police resources, not a complaint about the existence of police. Right. And so this suggests to me that the, you know, problem of white collar crime or things like wage theft suggests that, you know, the view that we need policing is actually a little bit more, you know, widespread than, than you might think.
- [46:10]
B
That makes sense.
- [46:11]
A
Yeah.
- [46:12]
B
And another aspect of that I've that I'm curious about is a lot of your, I mean, a lot of the focus is on the US and the United States policing system. I'm wondering to what degree do your arguments apply to other contexts, to other jurisdictions and thinking about, let's say non democratic societies. You do talk a little bit about the UK and other democratic liberal states, but what about countries that are, let's say, more authoritarian? And to what degree is the concept of discretion and this more nuanced approach to policing applicable in those situations?
- [47:04]
A
Yeah, so I spend most of the time in the book thinking about the US context in part because that's what I'm more familiar with. But I do think that some of the things that I say have implications for comparative evaluation or looking at other kinds of police forces. So if I'm thinking about discretion under an authoritarian regime, one of the things that's interesting is that in the context of the US right, in the context of a liberal democratic regime, one of the main concerns about discretion, particularly non enforcement, is that it upsets the democratic will or it violates separation of powers, and that even if the democracy is mistaken, there's really good reason for the democracy to get its way.
- [47:52]
B
Right.
- [47:54]
A
But if you take away the democracy, if you take away the well functioning or the, you know, not terribly functioning political procedures, then then you give up on a lot of the legitimacy of the decision or the law in the first place. And so under these less legitimate, legitimate regimes, it seems like justifying discretionary non enforcement actually is a little bit easier. On the other hand, there is this problem that when countries sort of move from an authoritarian regime to a democracy, what you find is that the police apparatus is often weakened and people fill the void. Right? So this is one of the reasons why you see a lot of, you know, organized criminal, you know, organized criminal activity in places, you know, like Central America or something like that. So the thought here is just that there really is A kind of baseline, pragmatic element to thinking about how police officers should use their power. Because if the police officers for the state are not using it in a way that like most of the people in the community want, there will be a tendency for them to look elsewhere for other forms of social control to fill the void. So I don't have like a really kind of principled approach to thinking about police discretion under an authoritarian regime. But the pragmatic considerations I think weigh pretty heavily here. And I think that the non enforcement you get a little bit more easily when we're thinking about non authoritarian regimes though, we think about like policing and other basically liberal democracies. I think they're really useful for evaluating police practices. So one example that I like is that Frank Zimmering, this criminologist, argues that the US police in the United States should never shoot someone who's wielding a knife. Right. There's someone like brandishing a knife, it's disproportionate for police to shoot them. And the reason, he says, is because police almost never get killed or seriously injured by an attacker with a knife. Now of course you might say, well, obviously the police in the United States shoot these people and so of course they're not being attacked. Right. But Zimmering says, look, we know from rates of violence in the UK that officers in the UK are not being routinely stabbed or killed by assailants with knives. And it's not because they're shooting them. Most of the officers in the UK are not carrying firearms. Right. So this gives us some evidence that, that the sort of decision, rule or tactic that a lot of US police officers use, if someone is threatening you with a knife, shoot them. This is not a justified or legitimate tactic. Rather it violates a principle of proportionality. The amount of force involved is just too much. It doesn't match. Right. So I think that we can often look to other jurisdictions for like clues about whether, you know, our own is operating in accordance with whatever principles he likes.
- [50:57]
B
Like, so those, yeah, those empirical questions that we started with can also be answered by comparative policing research, right?
- [51:08]
A
Yeah, that's absolutely right. And you know, you don't need to go to like the UK for this sort of thing. Right. Policing in the United States is highly decentralized. So I mentioned, you know, at the beginning, this, the question about whether police officers should be engaging in high speed vehicle pursuits. Well, you know, some jurisdictions ban it, other jurisdictions don't. I lived for a number of years in New Orleans and when I lived in New Orleans, the police were not allowed to engage in high high speed pursuits, partly because they were under a federal consent decree. But you know, the next parish over, they engage in high speed vehicle pursuits all the time. Right. It was in the news like, you know, once a week or something like that. And you know, you would see headlines like Motorist drives into tree during high speed pursuit. And I have to think that although I assume most of the people in the NOPD are like, complaining about this consent decree, an honest look at these two policies would suggest that probably we should be reducing the high speed chases that we have, right? That like the NOPD is like maybe onto something interesting.
- [52:13]
B
Well, I'd like to turn to the Trump administration now and ask, because one of the big features of the first hundred days of the Trump administration has been a dramatic increase in policing, particularly on immigration. And there's a connection that has been used to justify the action so far for many is the purported or real criminal backgrounds of many undocumented migrants and justifying their enforcement actions against these people is there. To what degree do you think that these cases illustrate some of the aspects of discretion, maybe in a negative sense? And what do you see are the implications of the use of discretion that we see happening so far with the new administration?
- [53:25]
A
So I think this is a really useful case. So I've got kind of a lot to say about this. So the first thing I want to say is that the immigration case suggests to me, or it illustrates, I think, the distinction between policing and punishment. And what the police are supposed to do is deter the bad thing from happening or make an arrest for adjudication later on. What they're not supposed to do is make people suffer misfortunes because they have done something wrong. And so I think that what we're seeing right now is just a really clear case of abusing the criminal legal system such that it's punitive. It's really difficult to look at the violation of due process and not come away with the view that this is part of the point, that this is supposed to be punitive. And in that respect it's going to count as unjust policing, because that's just not the proper role of the police. There are also questions about how should we think about the distinction between a citizen and a non citizen. Now, you might think that citizens have special rights that non citizens don't, and I think that's probably true, but I don't think that it's actually all that relevant in this sort of case. So if you imagine the kind of burden associated with deporting someone without due process to a nation that they've never lived in. That seems like the sort of thing that is, you know, not only extremely cruel, but clearly a violation of what you might think of as basic or pre political right to. And if you think that, then the fact that these people are not citizens is sort of immaterial for evaluating the harm. It's not that it's irrelevant, right. It may be that there's this additional wrongmaking feature. You know, you violated some civic right that the person has if they're a citizen, but look like violating the kind of basic natural or human right, I think is sufficient in these sorts of cases to criticize what's happening. But I also think that the immigration cases, and particularly things like agencies like ICE highlight some of the points that I want to make about discretion. So one of the problems with specialization is that in a case like ice, the only people who are joining ICE are people who are willing to do this kind of work. And that means that you have a really pronounced selection effect for ice. You know, they're going to be staffing ICE with officers who have no qualms about this sort of work, right? Now compare this with the Central Park Keepers or the beach police here in California. They have really deep qualms about arresting you and throwing you on the ground and making you bleed or putting you in cuffs or whatever it is. They don't really want to do that sort of thing, right? So in this respect, you might think, well, one of the problems here is that ICE is specialized and what we want is more general policing. Now, in a certain case, I think this is right. In a certain sense, I think this is right. But in another sense, I think that this highlights the importance of uncoupling, to use a technical term from the book, these various social systems. So one of the things that police discretion does is it uncouples the lawmaking system from the punishment system because you don't have police officers arresting someone every single time they break a law, right? And that introduces some slack into the system. And so this kind of uncoupling or like loosening the coupling between these social systems I think is really important. In the book, I had this sort of weird idea that we should separate the investigative parts of our police departments from the patrol part of our police departments, because I think that what you want is agencies that look a little bit more like the beach police or a little bit more like the park keepers. We don't want to be promoting People out of patrol into investigation, because that's going to have a kind of weird effect on the way that they exercise their power. Right. We want to be rewarding them for being good patrol officers. We don't want to be encouraging our patrol officers to be, you know, pulling off, make a difference busts, or however you want to put it. Okay, so now let me bring this back to the issue of immigration. One of the questions facing police officers and police agencies is the extent to which they collaborate with or cooperate with federal police agencies. And one reason for thinking that it's a good idea for them not to cooperate with these police agencies is because the local police have different goals than the federal police. Right. So like ice, they want to stop, you know, illegal immigration or something. What, you know, the LAPD generally wants to do is make sure that people aren't getting into fights on the street, that people are, you know, violating the traffic rules, that, you know, people aren't beating up their children or their parents or, you know, whatever it is. Right. And in order to effectively police these sorts of things, you need the community to be willing to call on you when there's a problem. Right. But if you're. If you're an undocumented immigrant or if you have a friend who's an undocumented immigrant or family and something bad happens and you know that the LAPD or whoever is going to immediately correct, cooperate with ICE and the immigration enforcement, you have a really good reason not to call the police. Your reason to want social control, though, doesn't go away. And so what are you likely to do? You're likely to handle the problem yourself. Right. And that's the sort of thing that produces retaliatory or escalating sites of violence, or it means that people are just dealing with quietly suffering through predation or something like that. So I think that in a lot of cases, there's really good reason to have local agencies not cooperate with the federal government, because as soon as two agencies are really tightly cooperating, it's easy for one agency's goal to kind of swamp the others.
- [59:30]
B
That's really insightful and really, I think, captures the social function of policing, and it's really valuable distinction in terms of the different levels of government and their different priorities there. I think that really covers, I think, really illustrates the richness and the excellent insights that Jake offers in this book, and I have really found it fascinating. So I appreciate your time, and it's great to speak with you today, and I commend everyone to. To go out and. And buy and read the book.
- [60:17]
A
Yeah. Thanks so much. This was really a lot of fun.
- [60:20]
B
Appreciate it. Okay, take care.