Support The Bulwark and subscribe today.
  Join Now

Reform the Law, Too

In addition to reforming law enforcement, we need to reexamine unjust laws, such as the three-strikes regime.
June 23, 2020
Reform the Law, Too
U.S. President Donald Trump participates in the signing ceremony for the First Step Act and the Juvenile Justice Reform Act in the Oval Office of the White House December 21, 2018 in Washington, DC. Photo by Win McNamee/Getty Images)

Most current police reform proposals simply aim to change how police enforce the laws.

Some people want to defund the police. Others want police reform. Legislators at the local, state, and federal levels will debate various proposals. Different localities will experiment with different attempts to change law enforcement tactics. All of that is fitting. But that conversation misses a fundamental issue: that some of the laws and law enforcement priorities now in place are racially unjust and should be, themselves, reconsidered.

America has a history of using the law to subjugate African Americans. We might think of such laws are relics of the past, such as slavery, Jim Crow, and the Black codes. But there are existing rules and enforcement procedures today which disproportionately lead to the criminalization of African Americans.

And these problems, too, can be fixed.

Take for instance three-strike laws, which carry stricter sentences for those convicted of repeated minor offenses, such as possession of a controlled substance. This class of laws has not been productive—and in fact has had devastating effects for African-Americans.

California ended three-strikes in 2012, through a ballot initiative and has subsequently seen cost savings and low recidivism. In 2018, the Trump administration reduced maximum sentences within three-strikes laws to 25 years (but with no retroactive enforcement) with the First Step Act, which was a positive beginning of reform at the national level.

Yet three-strikes remains the law in over half of the states. Ending this practice truly should be the first in a series of steps that will save money while bringing a more humane approach to deciding what crimes deserve which kinds of punishment.

Then there’s the theory of broken windows policing.

The “broken windows” paradigm originated in Newark, New Jersey, as a collaboration between criminologist George Kelling and sociologist James Q. Wilson. The theory originally proposed that if a broken window was left alone, then people would assume that no one cared, and larger disorder would follow.

Kelling and Wilson advocated for much deeper ties between police and the community and a system which attended to the metaphorical broken windows.

But somewhere along the way, the practice of “broken windows” shifted so that police took it to mean that people who commit minor offenses are prone to commit more serious ones, and so low-level activity needs to be clamped down.

This mutated view of broken-windows policing is what led to the 2014 arrest, and then murder, of Eric Garner in New York City, simply for selling loose cigarettes. (The law on which is, itself, dubious.)

As George Kelling told Frontline in 2016:

Kelling has since said that the theory has often been misapplied. He said that he envisioned Broken Windows as a tactic in a broader effort in community policing. Officers should use their discretion to enforce public order laws much as police do during traffic stops, he said. So an officer might issue a warning to someone drinking in public, or talk to kids skateboarding in a park about finding another place to play. Summons and arrests are only one tool, he said.

Kelling told FRONTLINE that over the years, as he began to hear about chiefs around the country adopting Broken Windows as a broad policy, he thought two words: “Oh s–t.”

“You’re just asking for a whole lot of trouble,” Kelling said. “You don’t just say one day, ‘Go out and restore order.’ You train officers, you develop guidelines. Any officer who really wants to do order maintenance has to be able to answer satisfactorily the question, ‘Why do you decide to arrest one person who’s urinating in public and not arrest [another]?’ … And if you can’t answer that question, if you just say ‘Well, it’s common sense,’ you get very, very worried.”

“So yeah,” he said. “There’s been a lot of things done in the name of Broken Windows that I regret.”

The real-world result of this form of broken windows has been to systematically target African-Americans. Researchers have found, for example, that the same kinds of graffiti and loitering were more likely considered “disorder” in African-American than white communities. Nor does the approach reduce crime rates, for a decline in crime in New York City often attributed to broken windows policing had been going down before that, and rates declined nationwide at that time without this approach.

Campaigns to end this practice are underway. They argue commonsense points that spitting, jaywalking, marijuana possession, and other acts do not constitute a threat to public safety and do not need police intervention.

The same sort of attention should be brought to breaking the school-to-prison pipeline that can begin in schools and unfairly denies young African-Americans of opportunities—again premised on the harsh enforcement of questionable rules. African-American and Latinx students are disciplined at higher rates than are whites, in part because what is acceptable behavior in dress, noisemaking, and so on. And these youths will often end up in the criminal justice system.

If we do not change our policies for what is considered unlawful behavior, we will continue to encourage white people to call the police on African-Americans for small infractions or even legal behaviors. Such reliance on the police stems partly from this systemic bias against minorities in law enforcement.

Local districts should revisit what behaviors and codes constitute real public problems and which do not. Communities can take from models that center the voices of those most affected by criminal justice enforcement, school discipline, and other institutional bias, with the goal of creating a more just set of practices that does not criminalize things which aren’t actually criminal.

National policy, state-level policy, local communities, and everyday people should understand that the reform of police tactics is an important step, but is not the only challenge for the criminal justice system.

We need to reexamine what the rules and punishments should be in the first place.

Pawan Dhingra

Pawan Dhingra is a professor at Amherst College who has written and taught on U.S. racial inequalities across different institutions, most recently Hyper Education: Why Good Schools, Good Grades, and Good Behavior Are Not Enough.