CRIME AND THE MYTHOLOGY OF POLICE.

• Author: Baughman, Shima Baradaran

ABSTRACT

The legal policing literature has espoused one theory of policing after another in an effort to address the frayed relationship between police and the communities they serve. All have aimed to diagnose chronic policing problems in working towards structural police reform. The core principle emanating from these theoretical critiques is that the mistrust of police among communities of color results from maltreatment, illegitimacy, and marginalization from the law and its enforcers. Remedies have included police training to encourage treating people with dignity, investing in body cameras and other technology, providing legal avenues to encourage constitutional action by police, and creating a voice for community members to express their needs. These preeminent policing theories do not fully address a core cause of police mistrust and disaffection of communities of color and the poor. To address these symptoms of policing failure requires a consideration of the purpose and function of police. At the core of police function is a misunderstanding of policing that this Article terms "the police myth."

The police myth is the twofold belief that a primary function of police is crime control and that police solve crimes with regularity. Reliance on the police myth may provide societal comfort but has made it difficult to address rudimentary policing failure. Without understanding what police actually do and their relationship with crime, it is impossible to reimagine policing. This Article seeks to understand the myth that in large part contributes to the anomie between police and communities of color, but also creates a structural dissonance regarding the nature and function of police and their role in a community. Dispelling this myth allows a broader reimagining of policing that recasts the policing functions and expectations of public safety.

TABLE OF CONTENTS I. BRIEF HISTORY OF POLICE FUNCTION A. Defining Police B. Early American Policing C. Midcentury American Policing D. Modern American Policing E. Defining Modern Police Function 1. Police and Detective Functions 2. Police Function and Time 3. Defining Serious Crimes 4. Defining "Solve" II. THE POLICE MYTH A. Reported Crimes B. Clearance Rates C. Understanding the Police Myth III. IMPACTS OF POLICE MYTHOLOGY A. Obfuscation of Police Function B. Police Disaffection C. Punishment-Protection Paradox D. In Defense of the Police Myth E. Path Toward Change CONCLUSION There is a critical conversation afoot about the future of police in America. All options are on the table as states and the federal government are considering defunding, (1) restructuring, (2) reducing the role of, (3) or otherwise reimagining police in modern society. (4) There have been strong feelings expressed by grassroots movements pushing to abolish police, (5) and on the other side, opposition based in fear that reducing policing will threaten public safety and increase crime. (6) At the crux of these debates is what role police should play in modern society. Policing scholars have recently commented that if we want to determine how to fix American policing, we must determine the purposes of police. (7) While the role of police may seem evident, it may not be so simple. The media, average citizens, and even some scholars have assumed that the role of police is to fight crime and "make people safe." (8) Maybe because it has assumed the obvious, the legal literature has largely neglected to engage in a meaningful discussion of the purpose and function of police.

The veins of policing scholarship have historically included both instrumentalist and legitimacy approaches; the former focused on improving police crime control, (9) and the latter focused on improving police and community relationships. (10) These two approaches are not binary; although legitimacy theorists certainly have instrumental aims, both approaches are missing a meaningful discussion of the role and function of police. Early 1960s instrumentalist approaches in policing literature relied on patrol policing and community policing which aimed to improve police ability to solve crime and address community concerns. (11) As reported crime rates rose in the 1970s, instrumentalist policing adapted to new technology and approaches with broken windows policing, (12) hot spots policing, (13) and predictive policing, (14) which all purportedly aimed to reduce crime and delinquency in communities. More recently, legitimacy theories have rejected instrumentalist approaches--focusing not on goals of reducing crime or improving police function--but concentrating on community lack of trust in police. (15) These varied, and sometimes diametrically opposed, theories, promulgated by Tracey Meares, Tom Tyler, Monica Bell, Jocelyn Simonson and others include procedural justice, (16) democratic and power lens policing, (17) and legal estrangement. (18) Tom Tyler and Tracey Meares focus on training of police to improve legitimacy, (19) Monica Bell encourages constitutional action to reduce public marginalization, (20) and Simonson considers democratization or wholesale shifts of power in policing structures. (21) To the extent that these theories have examined policing, they often focus on symptoms of policing failure--including racial discrimination, (22) excessive force, (23) corruption, (24) police misconduct, (25) and marginalization. (26) The last thirty years, legal scholars have largely lost sight of overall police function, goals, or police crime control metrics, (27) with some exception. (28) The theoretical framework of police investigation and more broadly, instrumentalist approaches to police reform, have remained largely without progress. (29) Legal academia has largely neglected to pursue any rigorous inquiry into the function and purpose of police. (30) While theory ignores the issues surrounding the investigative and crime solving functions of police, the lofty goals of ending marginalization and democratizing police remain unachieved.

To begin examining the purpose of police, two (so-far) uncontroversial assumptions at the foundation of the public view of police must be addressed. The first is that policing's core function involves preventing, investigating, and solving crime, (31) and the second is that crimes are solved by police. (32) These assumptions together are what this Article terms the police myth. A large part of the public recognizes that there are unsolved mysteries and that police are not perfect--especially when it comes to abuse and misconduct--but it also assumes largely that police fulfill their core function by solving crimes. (33) Though a significant portion of the public knows all too well that police do not regularly solve serious crimes, as these marginalized communities are often the forgotten victims of these crimes. (34)

A brief historical review confirms that from the founding of American police, the state has charged police with investigating and solving crimes. (35) Indeed, police hold a monopoly in the duty to solve crime--they are the only actors who can arrest and turn individuals over for prosecution. (36) While the charge of police has always been crime fighting, the function of police has been much broader. A closer examination of history reveals that the police function is one limited expression of a broader constitutional "police power" that includes state power over health, safety, and transportation. (37) This "police power" covers much more than criminal policing and is a power used by states to enact laws, including criminal laws. (38) The constitutional "police power" is also used to delegate power for enforcement of laws to police. Although the authority of police comes from this state "police power," the two are distinct concepts. (39) A historical review also reveals that police have always dealt with public order issues--examples over the years range from resolving interpersonal disputes and clearing sheep from city streets to managing sewer issues and traffic. (40) States used their police power in part to entrust police with responsibility for these public order functions. Moreover, while the core function of police may have been crime control, this has only ever been in name only, as police have been involved with health, safety, and transportation issues throughout their history. (41)

The second part of the police myth is the inherent assumption that crimes are regularly solved by police. In that sense, the police myth implicates both the core function of police and the performance of police. Indeed, underlying many legal discussions of policing policy is a widely accepted--though false--assumption that police are solving serious crimes. (42) The serious crimes considered here include classic felonies of murder, rape, aggravated assault, burglary, robbery, arson, and motor vehicle theft. (43) What this Article means by solving crime refers to a crime that is reported, then investigated and resolved through arrest and clearance. (44) The public perception of "crime solving" is a police officer determining the perpetrator responsible for a particular offense and holding that person accountable for their crime. (45) By either definition, however, crimes are not being solved as might be anticipated.

Police have never successfully solved crimes with any regularity, (46) as arrest and clearance rates are consistently low throughout history. (47) Indeed, while the public overwhelmingly assumes that police are solving crimes, (48) police have never solved the majority of serious crimes. (49) Police have cleared only twenty percent of all serious crimes in the last thirty years. (50) However, the police myth has persisted over time. Based on this myth, the public has regularly reported crimes to police with an expectation that they are addressed. However, police fail to solve serious crimes regularly. This failure--and the underlying myth that police do solve...