- Dignity, Not Deadly Force:Why procedural justice matters for modern policing and democracy
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The practice and theory of policing are moving on sharply divergent paths. Which one prevails as the touchstone of 'good' policing will shape the contemporary state—and, not incidentally, the quality of democracy—for decades to come. [End Page 38]
On the ground, the evolution of policing is driven by the growing supply of electronic surveillance tools and military hardware. Their acquisition is enabled and accelerated by public and official clamoring for protection against terrorism and crime. Since the 1970s, especially in the English-speaking world, politicians have encouraged punitive attitudes toward criminals and others they deem security risks. They have stayed in office by translating public fears into harsh policies. Increasingly empowered police departments, then, enforce this strict, even vengeful, regime at the street level.
As their funding and political support grew, policing agencies acquired new powers for gathering data. At the front end, these include the authority to capture telephonic and electronic communications, as well as the diffusion of CCTV, facial recognition, and now-emerging biometric identification technologies. At the back end, algorithmic 'big data' tools today allow pooled data to be sliced for area-and person-specific risk predictions. Force, the claim goes, can then be applied with the precision of a Google search.
Often, the use of these technologies is justified in terms of the extraordinary threat of terrorism. But experience suggests that even in relatively robust liberal democracies such as the United States, novel surveillance techniques that are initially authorized only for national security purposes quickly bleed into more mundane crime-control functions. Aggressive marketing by software firms such as Palantir, which targets local and state police with the same surveillance tools the company sells to the military, speeds up this process.
The increasing penetration of data-generating devices into our daily lives—think here of your iPhone and the home's internet of things—has vastly expanded the intrusive capacity of police and security services. It is easy to miss this, especially in the United States, where law enforcement agencies loudly complain that technology constrains their reach. For example, the FBI made much of its initial difficulties accessing the locked iPhone of Syed Farook, a participant in the 2016 San Bernardino attack. The Justice Department, meanwhile, has cried wolf over federal court decisions blocking it from forcibly acquiring emails stored in Microsoft's Ireland-based servers.
But these narrow disputes distract from the larger trend: Policing agencies are gaining powers that previous legal regimes did not anticipate, let alone regulate. For example, the law provides very little protection for our personal data when it is held by a commercial third party (Apple, Siemens, Twitter, etc.). That wasn't a big deal in, say, 1980. It is today. So public spats over odd pieces of data obscure the extent to which constitutional and legal regulation inevitably lags behind the potential uses of new technology.
Yet increasing technological prowess has not in fact translated into more accurate deployment of force. Rather, policing has become militarized and reliant on tactics and instruments that once were confined to the battlefield. Across South America, Africa, and Asia, police have long employed paramilitary strategies using military hardware, and they continue to do so. In the United States—an ignominious standard-bearer in the West for the militarization of police—Congress in 1996 allowed local and state law enforcement to acquire surplus military-grade weapons. In the two decades since, purchases of guns, vehicles, and munitions have tallied up to $4.3 billion. Police in only a handful of jurisdictions (including Britain, Ireland, [End Page 39] Norway, Iceland, and New Zealand) currently operate unarmed by default. In the rest of the world, the possibility of deadly force comes with the police uniform.
But while the practice of policing has increasingly come to depend on technologies of intrusion—of surveillance and brute force—the theory of policing has taken a different turn. Social psychologists, criminologists, sociologists, and legal scholars have worked up an impressive collection of theoretical and empirical research that demonstrates how limited those instruments...