The discretion to escalate

by Henry on June 14, 2020

Police forcing a protestor to bump them

[Reader Attention Conservation Notice: This post consists of me trying to make the obvious a little more precise, at considerable length. Since it’s on topics where I have no obvious expertise, I may very possibly not only be reinventing the wheel, but adding superfluous corners].

The video linked above has been doing the rounds on social media. A protestor is arguing with a police officer, who moves in front of him and then (clearly quite deliberately, from the body language) stops suddenly, so that the protestor has no choice but to bump into the officer. This then provides a pretext for the police to swarm the protestor and subdue him, presumably on the theory that he has physical assaulted the officer. Up to a couple of weeks ago, this kind of technique wouldn’t have gotten much public attention. Some of the problems (certainly far from all) with the police in the US and elsewhere, reduce down to the problem of how much discretion police should be allowed. Much of this problem, in turn, reduces down to what might be called the discretion to escalate.

When police see a situation that they view as a potential challenge to public order, or to their own authority, or whatever, they have traditionally been given wide leeway to decide how to frame the situation. Perhaps they decide to de-escalate, by framing law breaking as something that they aren’t going to pay attention to (someone is smoking pot in public in a jurisdiction where it’s illegal, but arresting them will be more hassle than it is worth). Alternatively, they have the discretion to escalate. Specifically, they may (and often do) decide to reframe a situation where someone is non-violently challenging their authority (or public order as they understand it, or some amorphous combination of the two) as a situation that justifies the threat or employment of violence.

As noted on this blog years ago, employing the discretion to escalate (which often involves deliberately manipulating the situation so that the escalation to force is facially justified) is a standard police tactic standard police tactic. Peter Moskos, a sociologist who worked as a beat cop in Baltimore, and who sees this discretion as a necessary part of policing, describes it as follows.

A nonviolent domestic dispute serves as another example of using the law to gain extralegal authority. A woman calls police because she is sick of her baby’s father coming home and being rowdy after a night of drinking. An officer wants the drunken man to spend the night elsewhere. The girlfriend is not afraid of the man. Though the officer believes this argument will continue and perhaps turn violent, there is no cause for arrest. Police may not order a person from his or her home. But an officer can request to talk to the man outside his house. At this point the officer might say, “If you don’t take a walk, I’m going to lock you up.’ The man, though within his rights to quietly reenter his house and say goodnight to the police, is more likely to obey the officer’s request or engage the police in a loud and drunken late-night debate. The man may protest loudly that the officer has no reason to lock him up. If a crowd gathers or lights in neighboring buildings turn on, he may be arrested for disorderly conduct.

Compare the arresting officer’s description of how Skip Gates was arrested back in 2009:

When Gates asked me a third time for my name, I explained to him that I had provided it at his request two separate times. Gates continued to yell at me. I told Gates that I was leaving his residence and that if he had any other questions regarding the matter, I would speak with him outside his residence. As I began walking through the foyer toward the front door, I could hear Gates again demanding my name. I again told Gates that I would speak with him outside. My reason for wanting to leave the residence was that Gates was yelling very loud and the acoustics of the kitchen and foyer were making it difficult for me to transmit pertinent information to ECC or other responding units.

When I left the residence, I noted that there were several Cambridge and Harvard University police officers assembled on the sidewalk in front of the residence. Additionally, the caller, Ms. Walen and at least seven unidentified passers-by were looking in the direction of Gates, who had followed me outside the residence. As I descended the stairs to the sidewalk, Gates continued to yell at me, accusing me of racial bias and continued to tell me that I had not heard the last of him. Due to the tumultuous manner Gates had exhibited in his residence as well as his continued tumultuous behavior outside the residence, in view of the public, I warned Gates that he was becoming disorderly. Gates ignored my warning and continued to yell, which drew the attention both of the police officers and citizens, who appeared surprised and alarmed by Gates’ outburst. For a second time I warned Gates to calm down while I withdrew my department issued handcuffs from their carrying case. Gates again ignored my warning and continued to yell at me. It was at this time that I informed Gates that he was under arrest. I then stepped up the stairs, onto the porch and attempted to place handcuffs on Gates. Gates initially resisted my attempt to handcuff him, yelling that he was “disabled” and would fall without his cane.

It’s hard to read this and not conclude that the officer specifically wanted Gates to leave his residence, so as to be able to arrest and handcuff him for “continued tumultuous behavior outside the residence, in view of the public.” The officer was using his discretion to escalate, turning a situation that involved an angry confrontation with an (obviously non-violent) citizen within his own residence into a situation of public disorder that would justify arresting and publicly humiliating him. The “forced bump” shown in the video is a different tactic, but clearly directed towards the same end – of providing a facial justification for the employment of force. Much of the police violence over the last couple of weeks has similarly rested on the discretion to escalate, exercising a combination of extreme discretion and effective control of the use of violence to turn situations that involved peaceful protest into situations that justified violence and arrests. This can lurch into dark comedy when, for example, police claim that they strategically deflated the tyres of cars belonging to journalists and others, purportedly to stop them from being used as “dangerous weapons.”

One of the reasons why it is hard for police to understand their new political situation (at least – the situation they are in right now; it may very possibly reverse again) is that the discretion to escalate is a crucial part of their standard repertoire of social control. They are used to having the benefit of the doubt and then some. Up until recently, many were willing to turn a blind eye – and not just conservatives. Many of the judges promoting “qualified immunity” were liberal or left leaning. Self-declared libertarians such as Megan McArdle have been happy to claim e.g. that “Announcing that you’re going to walk on the street where the police tell you not to is announcing that you’re going to start a melee” (in fairness, other libertarians such as Radley Balko take a very different perspective).

Now, many aspects of police discretion are under fire as they never have been before. Typically, in public debate, police discretion is usually treated in pretty general terms (at least in the discussions that I have seen; again, I am far from an expert). As and when the discussion turns to specific policy measures, it may be useful instead to be more precise about discretion, and in particular to focus on the specific problems associated with the discretion to escalate. When the police, in their own judgment, are able to escalate non-law breaking actions into law breaking actions, or law breaking actions that don’t merit the use of violence into actions that obviously do, it isn’t any surprise that they are often going to abuse this discretion, or that the ways in which they abuse it will reflect a variety of biases and their own self-interest. This is far from the only problem with US policing, but it’s arguably an important one.

{ 37 comments }

1

DCA 06.14.20 at 7:07 pm

In the US context, the huge problem is that since police are armed, the escalation can too easily evolve to someone being shot (as just demonstrated in Atlanta). I’d happily sign on to “disarm the police”–but I can see why police would oppose this, not unreasonably given the prevalence of armed non-police. Thanks, “well-regulated militia”!

2

Brad DeLong 06.14.20 at 7:59 pm

In the interest of a proper rectification-of-names as recommended by Master Kung, may I please ask for scare quotes around the description of Megan McArdle as a ‘libertarian’? I know you already qualified the label as “self-declared”, but I think it would benefit from a little more…

3

J-D 06.14.20 at 11:56 pm

In the US context, the huge problem is that since police are armed, the escalation can too easily evolve to someone being shot (as just demonstrated in Atlanta). I’d happily sign on to “disarm the police”–but I can see why police would oppose this, not unreasonably given the prevalence of armed non-police. Thanks, “well-regulated militia”!

People being shot by the police is not something that happens only in what I would prefer to call ‘the US’ rather than ‘the US context’. There are a few countries where police on routine patrol are not equipped with firearms, but only a few. In most countries all police on duty are equipped with firearms, even though far fewer of the general public are equipped with firearms than is the case in the US.

I’m not sure how these facts affect the discussion, but it seems worth getting them straight.

4

Bob 06.15.20 at 12:15 am

I’d like to make a point that is related, but not exactly on topic. The concept of the “motte and bailey” has come up from time to time on this blog, and I believe that the slogan “defund the police” is a prime example of it in action. For the committed insider, it means exactly what it sounds like it means, but all over the media these days you hear commentators dismissing as gross exaggerations and willful misinterpretations any attempt by critics of the idea to take the slogan at its word: “No, no,” they say, shaking their heads more in sorrow than anger, “it’s just about re-prioritizing police budgets and reviewing how money is spent. Who could argue with that?”

I fear that “defund the police,” while exciting the base, is going to put off a lot of people who might otherwise be supportive. The “two-step,” where you take it back with quite reasonable talk about spending priorities, might work in academia, but it won’t in the public square.

5

Ebenezer Scrooge 06.15.20 at 12:31 am

Here’s a pair of names. Kenneth Culp Davis was the best known American legal scholar to write on this. James Q. Wilson was the sociologist (AFAIK) most associated with this.

6

Chip Daniels 06.15.20 at 3:10 am

It’s more than just the discretion to escalate. The police have the discretion to determine if a crime has even occurred. Although we commonly imagine that most arrests are the result of a citizen summoning help, most arrests are the outcome of police engaging with minor petty crimes like vehicle infractions, jaywalking or public behavior like drunkenness or disorderly conduct.

In these cases whether the “vehicle swerved” or “failed to yield”, or whether the suspect “refused to disperse” or whatever is entirely a discretionary determination by the police. For those of us who are white, we have all experienced cases where the decision was made to let us off with a warning, where the officer literally determined that a crime would not be recorded or prosecuted.

Even the base data of policing- “How many crimes occur?” is itself polluted by racial biase.

7

Phil 06.15.20 at 8:09 am

Strong agree with Chip Daniels @6. The officer’s discretion to escalate underlies a more general problem, which is that, with a very few exceptions (video evidence leaks, suspect is a Harvard professor…) the police officer always has the last word; if they want to get you for something, they’ll find something they can get you for. Here in the UK there was a widely-publicised case recently where a police officer threatened to arrest someone for not moving on, and when asked what for replied “I’ll make something up. Who are they going to believe, you or me?”. Unfortunately all this was caught on camera – as, perhaps even more damningly, were the two other police officers who stood by watching all this unfold. (“They were probably going to have a word with their colleague back at the station,” said some. And I’m sure the Tsar would have been cross when he found out, too.)

8

Tm 06.15.20 at 8:38 am

Any insightful comments about this book?

Alex Vitale
The end of policing
https://www.versobooks.com/books/2426-the-end-of-policing

How the police endanger us and why we need to find an alternative

Recent years have seen an explosion of protest against police brutality and repression—most dramatically in Ferguson, Missouri, where longheld grievances erupted in violent demonstrations following the police killing of Michael Brown. Among activists, journalists, and politicians, the conversation about how to respond and improve policing has focused on accountability, diversity, training, and community relations. Unfortunately, these reforms will not produce results, either alone or in combination. The core of the problem must be addressed: the nature of modern policing itself. “Broken windows” practices, the militarization of law enforcement, and the dramatic expansion of the police’s role over the last forty years have created a mandate for officers that must be rolled back.

9

Neel Krishnaswami 06.15.20 at 11:23 am

Brad Delong wrote:

In the interest of a proper rectification-of-names as recommended by Master Kung, may I please ask for scare quotes around the description of Megan McArdle as a ‘libertarian’? I know you already qualified the label as “self-declared”, but I think it would benefit from a little more…

No, this is not correct. There is a long history of eminent libertarians supporting authoritarian state violence: Ludvig von Mises was happy to work for Austrofascists like Engelbert Dollfuss, Friedrich von Hayek gleefully shilled for Pinochet, Ayn Rand exhibited unbridled enthusiasm for the House Un-American Activities Committee, Murray Rothbard thought segregation was dandy, and so on and so on.

It would be wonderful if the typical libertarian were as heroic as Radley Balko, but in this fallen world, McArdle’s attitude is an authentically libertarian one.

10

Gorgonzola Petrovna 06.15.20 at 12:43 pm

The guy on the video, am I wrong getting the impression that he’s being deliberately provocative, walking in close proximity to the cops and taunting them? In the end, he gets what he (probably) wanted: this video.

The police-related thesis it illustrates is not (imo) any systemic problem in policing, but that human nature can trump professional training. Unless the systemic problem is that cops are human beings. Okay, sure: human beings with certain traits, suitable for this particular career path…

11

MarkW 06.15.20 at 1:13 pm

Self-declared libertarians such as Megan McArdle have been happy to claim e.g. that “Announcing that you’re going to walk on the street where the police tell you not to is announcing that you’re going to start a melee” (in fairness, other libertarians such as Radley Balko take a very different perspective).

Are the a raft of other ‘self-declared’ libertarians who have expressed similar pro-police authority sentiments (of which McArdle was only one randomly selected example)? My own sense is that progressives have had the much bigger blind spot in this. Progressives are used to thinking that ‘government is just the things that we all do together’. They tend to believe that ‘democratic control’ (especially by Democrats) sanctifies government actions and that public employees (especially unionized government employees) are the good guys. My sense is that many progressives have gotten to this present moment only by peer influence and being able to frame this in their minds as almost exclusively a racism problem.

Libertarians, naturally skeptical of state power, have been focused on this problem basically forever. In contrast, I have many progressive friends going to marches who would draw a complete blank on the names Radley Balko and Cory Maye (though I do not include CTers in this — nor in seeing the problem as exclusively racism as this post demonstrates). For many of those same marching progressive friends, I don’t think that qualified immunity was in their vocabulary or consciousness six months ago or that, even now, they have any awareness, say, of the gross injustice of coercive plea-bargaining that libertarians (even those evil Koch-funded ones at Cato) have been complaining about for many years. The jails and prisons in the U.S. could not possibly be kept full if not for the ‘efficient’, industrial-scale use of coerced guilty pleas to avoid the time and expense of trials that the criminal justice system could not begin to handle. How many U.S. progressives have this criminal-justice outrage on their radar?

12

William Meyer 06.15.20 at 1:37 pm

The problem here is a specific example of a far more general problem: people being given considerable positional authority with very little, if any, accountability. It always leads to bad consequences. The problem is rife in our society, and by no means limited to police. The exact same consequences are clearly visible among judges, politicians and both public and private sector bureaucrats and administrators. People granted strong positional authority always should (1) have significantly less, not more, privacy than ordinary citizens and (2) fewer procedural protections against investigation and discipline. People with truly significant positional authority should have an investigative agency more less taking up permanent residence in their colon. Their job decisions, who they socialize with, and their financial dealings should be continuously monitored.

The current situation with the police–where they are granted significant positional authority and a whole range of formal and informal procedural protections against accountability–is obviously tantamount to telling a “fixer” that you have a problem that you want to make go away, and adding the instructions that “I don’t care how you do it, I just don’t want to know about it.” How well do people think that’s going to turn out, especially if that situation continues for any length of time? And yet, people seem to keep being surprised by how ugly the outcome is, when the situation is utterly predictable.

Well, there’s a solution people, we just have to be willing to make it happen.

13

Lee A. Arnold 06.15.20 at 2:59 pm

About six years ago I was speaking to three uniformed LAPD on the street in Venice about some community safety issues. I was quiet, calm and logical but they didn’t want to hear my complaint. The middle one reared his arm back and threw a punch toward my abdomen, stopping a few inches short of contact. I didn’t flinch, didn’t acknowledge it, didn’t pause in my speaking and went on calmly as if nothing had happened. He laughed nervously, the other two were thrown a bit off balance by my total lack of reaction, and I continued until the three promised to take my complaint under consideration before they left. (My complaint was ignored.) I have no doubt that if I had thrown up my hands to ward off the punch and thus made physical contact with that cop, I’d have been flat on the street in cuffs with an assault charge.

14

rjk 06.15.20 at 3:48 pm

Bob @4

I fear that “defund the police,” while exciting the base, is going to put off a lot of people who might otherwise be supportive. The “two-step,” where you take it back with quite reasonable talk about spending priorities, might work in academia, but it won’t in the public square.

It doesn’t take much for “defund the police” to seem reasonable to “socially liberal, fiscally conservative” types. It’s a chance to squash the last real public sector unions, after all! I don’t think it will be nearly as hard to swallow as you imagine.

15

MisterMr 06.15.20 at 4:02 pm

@MarkW 11

“My own sense is that progressives have had the much bigger blind spot in this. Progressives are used to thinking that ‘government is just the things that we all do together’. They tend to believe that ‘democratic control’ (especially by Democrats) sanctifies government actions and that public employees (especially unionized government employees) are the good guys. My sense is that many progressives have gotten to this present moment only by peer influence and being able to frame this in their minds as almost exclusively a racism problem.”

I think you are wrong on this. What actually happens is this: progressives generally want an increased government in the sense of more taxes and more public spending, not in the sense of more police.
Various people on the right want lower taxes and lower spending. Libertarians gravitate towards the right for this reason, and in fact libertarianism was born mostly against government spending.

When we speak of being against specifically police overreach (and also military spending) normally lefties are against it, while conservatives are the law and order party, so in this different aspect of government lefties are the small government ones, while conservatives are generally the big government ones.

Libertarians in theory should be small government dudes in both cases, but in pratice since they gravitate around conservatives they generally end up being pro law and order, larger role for the police dudes in the end.

There is also the point that libertarians accept (generally) the idea of the “nightwatchman” state, the idea that the sole role of the state is to prevent crime (and perhaps the military), however a nightwatchman state is no defence against police abuse, since police is the only role that is supposed to be licit.

16

Chetan Murthy 06.15.20 at 4:53 pm

Gorgonzola Petrovna @ 10: “The guy on the video, am I wrong getting the impression that he’s being deliberately provocative, walking in close proximity to the cops and taunting them?”

Get your eyes checked, tovarisch. Also, maybe think of a better nym? The first name’s a nice touch, but it still sounds too Russian. And last: really, can’t the GRU hire a better class of provocateur? I mean, it’s the po-po who walked to close to -him-. Multiple po-po, all crowding him, what’s he supposed to do? Oh, I know! “don’t demonstrate”, right comrade?

17

Andres 06.15.20 at 6:27 pm

MarkW @11. That is a misperception on your part: people of a progressive bent who don’t fool themselves into thinking that the U.S. is a democracy (“if only Trump and his minions hadn’t come along…”) have been aware for a long time of the unjust and coercive nature of state institutions. Hence the repeated pre-2020 calls to drastically reform or even abolish the existing criminal justice system; this system has emerged primarily as a method of bypassing the 13th, 14th, and 15th amendments (please note that I say emerged, not “formed as part of a conspiracy”). The discretion to escalate is only a small part of this emergent process, but tends to become prevalent once policemen accept that their primary job is to put suspicious-looking people in prison; same with coerced plea-bargaining.

The fact that we are aware of this injustice and coincide with libertarians on calls for reform/abolition does not mean we are in the same boat as libertarians, who think that everything will be fine and dandy if only we give everyone liberty and ignore collective action problems. Ignoring collective action problems is only a way of ensuring that oligopolistic corporations and their executives come to dominate the economy and the political process. Even more importantly, ignoring collective action problems is a way of perpetuating economic segregation given that so much political and economic power is held by white people who suffer from unconscious bias at best and active racism at worst.

18

bt 06.15.20 at 7:59 pm

Everyone has their own markers, events or facts that changed the way they see things.

For me, the one that sealed it was the policeman who shot Walter Scoot in the back from 20 feet away in 2015 and then stages the body before the other police arrive. Captured on video, the cop never noticed, now he’s doing 20 years in jail for murder.

I can’t really look at any police stories the same after seeing that video. It makes you realize the impunity the police are able to assume, that they could put anyone in jail or worse if they wanted to.

19

Sebastian H 06.15.20 at 8:30 pm

Qualified Immunity makes all of these decisions even more grossly unreviewable than they otherwise would be. And while QI has been a libertarian complaint for about 30 years, progressives and Democrats have been generally for it (as a protection of government power I guess?) until very recently. A very clear suggestion of that can be seen that the Supreme Court refused to accept a case on the issue despite conservative Justice Thomas writing that he wanted to review it. Since only 4 Justices are needed to accept cert, at least one if not more of the liberal justices must have voted against it.

20

Jerry Vinokurov 06.16.20 at 2:59 am

@16,

Get your eyes checked, tovarisch. Also, maybe think of a better nym? The first name’s a nice touch, but it still sounds too Russian.

Can you fucking knock this off? I post here under my real name, and as you can plainly see, I have a Russian surname which makes sense because I am an immigrant who was born in the former USSR. The comment you are responding to was incredibly shitty and that should be enough to condemn it on the merits; you don’t need to descend into the conspiratorial fever swamp of imagining that every post you don’t like comes to you courtesy of Russian spy agencies (and on Crooked Timber of all places! Surely the GRU has higher-value targets…)

Every time I see garbage like this, it genuinely makes me feel like some American liberals are half a step from demanding loyalty oaths. It’s shit, and there’s no reason to pollute CT with this.

21

Chetan Murthy 06.16.20 at 5:29 am

MarkW @ 11: “Libertarians, naturally skeptical of state power, have been focused on this problem basically forever. In contrast, I have many progressive friends going to marches who would draw a complete blank on the names Radley Balko and Cory Maye”

Gah. More bafflegab. Radley Balko is perhaps the only well-known libertarian who cares about over-policing. Libertarians by and large are perfectly fine with po-po — they just want to be sure the po-po are policing those people over there. Just like all conservatives. I mean c’mon, man, we weren’t born yesterday. We’ve watched you libertarians turn into garden-variety conservatives, the moment one of your own was in power. Give up the act, you fool nobody.

22

ph 06.16.20 at 7:12 am

Hi Henry, there are strong incentives for both sides to seek escalation, which I hope require no elaboration.

Rational discourse and debate might expose commonalities which zealots on both sides are keen to smother.

One slightly off-topic point, the main differences between 2016 and 2020 is that there was a vibrant (sometimes vicious) debate about the elections of November 2016.

This year – nothing. Says quite a lot don’t you think?

23

Matt 06.16.20 at 7:27 am

Neel and 9: Murray Rothbard thought segregation was dandy, and so on and so on

It’s worth noting that a lot of Jim Crow segregation was privately imposed, and not mandated by the law. In fact, it took laws affirmatively banning “private” discrimination, rather than just removing laws allowing or imposing it, to change things. It’s a very common line in libertarianism that “private” discrimination should be allowed. And, in certain cases, there might be something to that. Not in the world we live in, but maybe in some other world. And, it’s possible that Rothbard goes beyond this. (I have read only a little of him, and it didn’t make me want to read more.) But, my impression is that it’s the “private” discrimination that libertarians like Rothbard are really in favor of allowing, at least officially. (Again, I think this is a serious mistake in our world, but it’s somewhat different than that made by, say, Hayek in supporting Pinochet.)

Sebastain – which prominent progressives and Democrats have been, in the last good while at least, supporters for qualified immunity, especially for the police? When I was (twice) a federal law clerk, when we had cases come up that involved this in relation to police (or prison guard) abuse, almost all of the “liberal”/Democratic appointed judges were apposed to the application of qualified immunity as far as they could be (given governing precedent) and tried to narrow it, while all or almost all of the conservative/Republican appointed judges were in favor of granting it, or even extending its range. (I can’t say for sure if we had any judges on panels who would qualify as “libertarian” leaning, but we had many Federalist Society types.) I can see why the liberal supreme court justices might not trust a Thomas opinion on the topic to not sweep much too broadly, but the idea that “liberals” generally support qualified immunity for the police, and have done so for a while, seems ill-supported to me. If you can point me to clear examples, I’d be grateful.

24

Neel Krishnaswami 06.16.20 at 10:08 am

Matt at 20:

It’s a very common line in libertarianism that “private” discrimination should be allowed. And, in certain cases, there might be something to that. Not in the world we live in, but maybe in some other world. And, it’s possible that Rothbard goes beyond this.

Yes, he was much, much worse than this. After failing to build an alliance between libertarians and the New Left(!), Murray Rothbard decided in the mid 80s that it would be better to make an alliance between libertarians and Southern racists, explicitly naming David Duke as a model of outreach to “rednecks” as part of his strategy to create “paleolibertarianism.”

The implosion of Ron Paul’s presidential bid in 2008 was in large part due to his close association with Rothbard’s friend and collaborator, Lew Rockwell, who wrote a bunch of crudely racist articles for Ron Paul’s newletter.

25

MarkW 06.16.20 at 10:56 am

Libertarians in theory should be small government dudes in both cases, but in pratice since they gravitate around conservatives they generally end up being pro law and order, larger role for the police dudes in the end.

What do you make of this libertarian arguing that the U.S. is actually under-policed but overprisoned? Is that a pro law-and-order argument (more cops, more arrests) or an anti law-and-order argument (milder punishments, fewer prisoners)? Is it a left-wing or right-wing argument? Or something else entirely?

26

Jerry Vinokurov 06.16.20 at 1:28 pm

Get your eyes checked, tovarisch. Also, maybe think of a better nym? The first name’s a nice touch, but it still sounds too Russian. And last: really, can’t the GRU hire a better class of provocateur? I mean, it’s the po-po who walked to close to -him-. Multiple po-po, all crowding him, what’s he supposed to do? Oh, I know! “don’t demonstrate”, right comrade?

I don’t understand why tripe like this gets approved but a comment (mine) asking people to knock this off does not.

27

Chip Daniels 06.16.20 at 3:21 pm

The weird gaps in libertarian thinking about police become much more clear when you grasp that they only want to reduce government scope, not its power.

If the protection of property rights requires draconian policing and surveillance, this is acceptable exercise of the minarchist state’s mission to protect property rights.

28

Genuine Hippie 06.16.20 at 4:16 pm

A lot (most?) police believe they can and should punish people who don’t do as they say. Not just arrest: punish. George Floyd was being punished.

29

Andres 06.16.20 at 5:48 pm

@25: Seconded. Petrovna is obviously a troll, but there’ s no way to know for certain if he/she is a Russian Black Hundreds wannabe or a genuine born-in-the-USA or proud émigré fascist. The first law of civilized behavior is to avoid name calling based on what you do not know.

30

Stephen 06.16.20 at 7:32 pm

bt@18

“For me, the one that sealed it was the policeman who shot Walter Scoot in the back from 20 feet away in 2015 and then stages the body before the other police arrive. Captured on video, the cop never noticed, now he’s doing 20 years in jail for murder.”

The USA is a very strange country which I do not claim to understand. Still and all, if a policeman who murders a civilian ends up doing 20 years in gaol, that seems to me to indicate that the US legal system was in that case at least working well.

I’m sure you can think of some other countries where the outcome would probably have been very different.

31

MisterMr 06.16.20 at 7:43 pm

@MarkW 25

First of all, a disclaimer: I’m not, personally, particularly anti-police.

That said, the article you linked makes sense to me, although as I don’t live in the USA I have no clear idea about this.

I tend to associate to the right wing a certain desire to give out hard punishment, so I wouldn’t call it a typical right wing policy, though maybe calling it left-wing is a stretch.

In reality the argument of more policing and smaller punishments is rather old, at least from the times of Silvio Pellico.

There is a similar argument against death penalty, however. I think we can agree that death penalty is more a right wing idea? The ideas in that article would go against death penalty, so from this point of view they would go against the right.

When I say that calling it left wing is a stretch, though, I mean this:
While we tend to see the right and the left as diametrically opposed, in reality they have different narratives and therefore the arguments are not really specular.
For example, I see the right as strongly pro harsh punishment, whereas I see the left as mildly against harsh punishment.
On the other hand, the concept of “big government”, as seen by the libertarians for example, is different from what the lefties mean and/or want as big government, but since libertarians see things through a different narrative they tend to mix it up and assume that lefties want a police state.

32

MarkW 06.17.20 at 12:51 am

Chetan Murphy @21

Radley Balko is perhaps the only well-known libertarian who cares about over-policing

I would provide a long series of links to refute that if I thought it would have an impact, but I suspect it would be futile (I assume you can google as well as I can). Yes, Radley Balko moved on from Reason years ago now, but Reason has by no means moved on from covering abusive policing.

But let me make one try here — I did provide a link above to a Cato piece from almost 10 years ago about over-charging and coercive plea bargaining. Here it is again. Has CT discussed that particular criminal justice issue? When I searched for mentions of “plea bargain” on CT, I found nothing except a couple of random hits over the years. But this is one of the critical issues in the filling of the U.S.’s overflowing prisons. Of course, CT is not a U.S. blog and not everything is going to be covered, but still. If I change from searching CT to Reason or Cato, I get a litany of articles about that particular form of criminal justice abuse. And who do you think is more likely to succumb and plead guilty to crimes they did not commit? Poor and minority defendants? Or wealthy white defendants with resources to challenge the prosecutor?

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Andres 06.17.20 at 12:58 am

MarkW @25: I find the Marginal Revolution article unconvincing; it does little to dispel my lack of faith reflex whenever I read anything by Cowen and Tabarrok. For starters, Tabarrok doesn’t explain how he would try to reduce the over-prisoning of the U.S. Presumably, eliminating prison sentences for drug possession with intent to consume would be one step in this direction, but would be an insufficient one. Nowhere in the article is it mentioned that a large part of the reason for over-prisoning is the historical denial of good schools and good jobs to both minority and poor white communities.

The claim that lower crime has been of benefit to black men gets it exactly wrong in terms of putting the cart before the horse. A majority of black families still live and work in predominantly low income neighborhoods and jobs, but to the extent that they have benefited from better access to education and reduced discrimination in jobs and housing, they have been in less danger of falling into the crime/drug use trap; poor white communities are now moving in the opposite direction.

And by comparing police spending to prison spending, Tabarrok makes it seem as if the U.S. spends relatively less on policing, which is not the case; I doubt that there are many, if any, European countries that spend as much per policemen on weapons, riot control equipment, and other confrontation hardware. But the really outrageous part of the argument is that police spending is a question of more vs. less; anyone who has looked at the news lately knows that it is the type of policing rather than its quantity that is the real issue in the current social conflict.

Overall, Tabarrok wants to make plausible the policy claim that more policing leads to less crime, which benefits black people. But anyone who’s been watching the news over the past 10 years knows that such a line of argument is extremely clueless even by Tabarrok’s standards. I stopped reading MR some time ago so as not to get excessively bad-tempered by the overly contrarian narrow-mindedness of the analysis, and I recommend you do the same.

(Note: my previous comment should have been addressed to @20, not Mark@25).

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Hidari 06.17.20 at 6:29 am

This article might be interesting to those interested in these issues.

https://medium.com/@OfcrACab/confessions-of-a-former-bastard-cop-bb14d17bc759

Obviously it’s anonymous, so caveat lector. But if it’s really from an ex-cop, much to mull on.

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hix 06.17.20 at 10:57 pm

As if there ever was a real life libertarian who took his own rethoric serious.
Real life politicians as well as real life voters that somtimes take those labels end up being very much in favour of big government as long as it´s the right kind and rich people dont have to pay for it. Military/secret service first and foremost, prisons and police is also fine. Big government is even better when it means the government paying for something through an extra layer of for profit companies. The Elon Musks and Peter Thiels of this world just love it when big government pays through military or NASA budgets for their narcissistic show and their billionaire status.

At the end of the day, even direct employment at the government in the US is one of the highest among developed nations, since sourcing out soldiers and police to private for proftis still remains a hard sell, so most of those functions are still direct government employees.

The second aspect is education: Sure hard libertarians and the filthy rich like their outright private schools, preferably still paid by government. The rest will settle for crappy schools for the poor and public schools with outsiced budgets by any other nations standard for their school district.

By all means defund the police in a literal sense, i´ll believe you without even bohering to do any comparison that their budget really is overblown in most parts of the US, but don´t forget to defund the military and the secret services aswell. In this case – defunding by 95% would be fine which is rather certainly a notch too much regarding the police.

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bianca steele 06.18.20 at 8:47 pm

I’m sure there must be an extensive philosophical literature on the phenomenon the OP calls “escalation,” given its close connections with reasoning about ethical behavior, seemingly turning an action from impermissible to permissible or the reverse. Anyone have a pointer about where to look for such a thing?

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Jens 06.19.20 at 12:25 pm

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