Private police and democracy.

• Author: Sklansky, David Alan

For most people, the police are government incarnate: the street-level embodiment of the state's monopolization of legitimate force. That is why it seemed so natural, in the middle decades of the twentieth century, for Pinkerton guards, private eyes, and the whole, old-fashioned apparatus of private peacekeeping and criminal apprehension to be dwindling away. By the end of the 1960s public law enforcement already employed more people than private security, and it appeared that the disparity would soon be nearly two-to-one. (1) The socialization of order maintenance and crime control seemed almost foreordained, part and parcel of the gradual triumph of the rule of law.

We now know, of course, that there was nothing natural or inevitable about the displacement of private guards and detectives by public police. Starting in the 1970s, growth in public law enforcement slackened, and the private security industry exploded. Today private guards greatly outnumber sworn law enforcement officers throughout the United States, and the gap continues to widen. Increasingly, private security firms patrol not only industrial facilities and commercial establishments but also office buildings, transportation facilities, recreational complexes, and entire shopping districts and residential neighborhoods. Many Americans--particularly wealthier Americans--are more likely to encounter a private security guard than a police officer on any given day. In the words of one industry executive, "[t]he plain truth is that today much of the protection of our people, their property and their businesses, has been turned over to private security." (2)

The implications of this dramatic development for democracy have received surprisingly little attention. Scholarship on private policing is relatively scant, and it focuses overwhelmingly on issues other than democracy. In a recent, perceptive review of the literature, Elizabeth Joh identifies five persistent themes: the historical pedigree of private policing, the relationship between police privatization and privatization more broadly, the functional characteristics of private policing, the division of labor between public law enforcement agencies and private police, and the exemption of private police from the constitutional rules imposed on public law enforcement. (3) One can quarrel with some of the details, but not with the most conspicuous absence from this list: the ramifications of privatized policing for American democracy. That issue has been doubly marginalized--largely ignored even in the small body of work that focuses on private policing. (4)

One reason for this neglect is that we have learned--too well--not to expect much in the way of democracy from public law enforcement agencies. The police professionalism movement of the 1950s and 1960s succeeded so fully at insulating police departments from political interference that, even today, after nearly two decades of "community policing" reforms, law enforcement often seems to operate outside of the normal processes of local government, accountable to no one. The new orthodoxy of community policing, in fact, has done little to reduce the operational autonomy of the police. The phrase "community policing" remains notoriously ill-defined, but one thing it has almost never meant is giving the "community" true control over law enforcement: virtually all of the varied programs lumped together under the name "community policing" have been implemented unilaterally by the police. (5) Against this backdrop, there does not seem to be much democracy to lose when policing is privatized. In fact, private policing is regularly praised for increasing accountability, as market pressures at least keep private firms attentive to their paying customers. (6)

None of this means, though, that the implications of private policing for democracy can safely be ignored. In the first place, praising private policing for increasing accountability begs some obvious questions: accountability to whom, and for what? Second, even the most autonomous police departments are subject to some political oversight--more public supervision, almost certainly, than virtually any private security firm. (7) Third, whatever their day-to-day practices, public law enforcement agencies at least understand their charge as protecting everyone within their jurisdiction. Finally, structures of local government can be reconfigured, ff we want police departments that are less insulated from politics, we can get them. We had them, after all, before the 1950s.

Of course, strategies of privatization also can be reconfigured, ff we want private security forces to behave in particular ways--complying with constitutional restrictions on the police, say, or paying attention to the concerns of people other than their customers--there are legal mechanisms at our disposal. Statutes can be passed; regulations can be promulgated; administrative oversight can be imposed; tort duties can be created. In the not uncommon situation where government itself is the purchaser, "public norms" can be imposed by contract. Moreover, we can be choosy about which police functions we privatize, and under what circumstances. In short, there are ways to make privatization safer for democracy, and there may even be ways to make privatization the friend of democracy. (8)

To devise such responses, though, we need to understand what we are responding to. We need to understand the nature of the challenges and, perhaps, the opportunities, that private policing presents for democracy. This turns out to be a tall task; my main goal here is to explain why. The implications of private policing for democracy, I will argue, are as complex as they are profound. They depend on the particular kind of private policing at issue, on the particular account of democracy we bring to bear, and on the functional relationship we assume between private and public policing. I will explore each of these three levels of complexity in turn, noting some of the ways in which they complicate an assessment of the democratic implications of police privatization.

In the course of this exploration, I will urge attention to two underappreciated ways in which private security threatens democracy. The first is by dampening political support for public law enforcement that is committed, at least nominally, to protecting everyone against illegal violence. The result may be a system of policing even less egalitarian than the one we have today. The second is by aborting the largely unrealized project of democratizing the internal workings of police departments. The result of that may be to forfeit a promising set of avenues for making policing more effective, more humane, and more respectful of the democratic process in the broader society.

I.

Private policing varies widely. That is the first difficulty in assessing its implications for democracy. Elizabeth Job helpfully divides private policing into four categories, which she calls "protective policing, " "intelligence policing, " "publicly-contracted policing, " and "corporate policing." (9) Protective policing focuses on the safeguarding of private property; this is the job performed, for example, by armored car drivers, security guards in retail stores, and private patrols hired by homeowners' associations. (10) These are the kinds of employees we usually think of first when we think of private policing. Intelligence policing is private detective work; it includes corporate spying, insurance investigation, and marital fidelity surveillance. (11) A decade ago, the last time anyone made a careful count, there were more than 70, 000 private investigators nationwide, and their ranks were growing rapidly. (12) Publicly-contracted policing involves the outsourcing of law enforcement work by public agencies. (13) According to one estimate, 45% of all local governments were contracting out at least some of their security work by the late 1990s--up from 27% a decade earlier. (14) Much of the outsourcing involved humdrum tasks like data processing or parking enforcement, (15) but it is increasingly common for private firms to patrol government buildings, housing projects, or public parks, and a few municipalities have experimented with even broader reliance on private police. (16) Joh's last category, corporate policing, consists of security departments that "replicate features of a public department within a private environment, " seeking not just to protect corporate property but to provide physical security for employees and customers, to be "first-response problem solvers, " and to defend the company's public image. (17) The classic example is the security department at a Disney theme park. (18)

Job's useful typology highlights the varied nature of private policing. K-Mart's security force is a different animal from the private police at Disneyworld. Private investigators raise different concerns from uniformed guards. And the outsourcing of public law enforcement work presents different challenges, and different opportunities, from the growth of private security employed by private parties. On the one hand, government outsourcing poses, in a particular stark fashion, the danger of public agencies washing their hands of the details of law enforcement; on the other hand, as long as government is paying for law enforcement it retains control of fundamental questions of allocation, and the outsourcing contract may provide a particularly promising vehicle for applying "public law norms" to private policing. (19)

In fact, Joh's typology considerably simplifies the diverse forms taken by private policing. Take, for example, armored car drivers, store security guards, and private residential patrols--all lumped together by Joh as protective policing. There are large differences between these three groups. Unlike store security guards and residential patrol personnel, armored car drivers typically carry...