Police and Democracy

Democracy is defined by broad values involving participation and formal rules about procedures such as elections. But for most persons most of the time these are removed from daily life. That is not true for the police, the agency of government that citizens are most likely to see and have contact with.

All industrial societies use police to control crime and to contribute to public order (e.g., mediating and arbitrating disputes, regulating traffic and helping in emergencies). But the conditions under which police operate, the means they use and the ends they seek vary greatly between democratic and non-democratic societies.

Police are a central element of a democratic society. Indeed one element in defining such a society is a police force that 1) is subject to the rule of law, rather than the wishes of a powerful leader or party 2) can intervene n the life of citizens only under limited and carefully controlled circumstances and 3) is publicly accountable.

It is a myth that all that stands between total chaos and social order is the police. Social order has multiple sources. These include socialization to norms, a desire to have others think well of us, reciprocity, self-defense and the design of the physical environment. Yet police are an important factor. Their importance increases with the heterogeneity and size of a society.

A defining characteristics of police is their mandate to legally use force and to deprive citizens of their liberty. This power is bound to generate opposition from those who are subject to it. It also offers great temptations for abuse. Law enforcement requires a delicate balancing act. The conflicts between liberty and order receive their purest expression in considerations of democratic policing.

It is ironic that police are both a major support and a major threat to a democratic society. When police operate under the rule of law they may protect democracy by their example of respect for the law and by suppressing crime. Police are moral, as well as legal, actors.

But apart from the rule of law and public accountability, the police power to use force, engage in summary punishment, use covert surveillance, and to stop, search and arrest citizens, can be used to support dictatorial regimes and practices. When non-democratic regimes are toppled a prominent demand is always for the elimination of the secret police. The term "police state" as represented by Germany under National Socialism and the former Soviet Union under communism suggests the opposite of a democratic state. Police are subservient to a single party, not a legislature or judiciary. The policing of crime and politics merge and political dissent becomes a crime.

The meaning of the term police has changed over the last 5 centuries. The word police comes from "polity", meaning the form of government of a political body. In Europe in the 15th century it referred broadly to matters involving life, health and property. There was no distinct police force. Policing was done intermittently by the military and society was largely "unpoliced". With the formation of modern states with clear national borders beginning in the 18th century, policing became concerned with internal security and the prevention of public dangers. With the expansion of the law over the next several centuries police came to be increasingly concerned with internal security, the prevention of public dangers and the prevention r redress of breaches of law. They also themselves came to be more controlled by the law.

There is no simple or widely agreed upon definition of a democratic police. Indeed it is easier to define a non-democratic police and non-democratic police behavior than their opposites. But viewed abstractly all democratic police systems share the ideal that police powers are to be used according to the rule of law and not according to the whims of the ruler or the police agent. The state’s power must be used in a restrained fashion and proportional to the problem. In the original British model there was to be policing by consent and hence an unarmed police. Ideally citizens would accept police authority out of respect, rather than out of intimidation.

A democratic police is defined by both its means and its ends. Some means are simply too abhorrent and are prohibited under any circumstances: torture and summary executive, kidnapping, and harming family members of a suspect. Other means involving the use of force, the denial of liberty and interrogation must only occur with due process of law. Due process does not refer to questions of guilt or innocence, but with the way in which guilt is determined.

In most countries stringent actions such as wiretapping or holding a suspect in custody for more than a short period of time must be sanctioned by independent judicial or executive authorities. Should force be required it should be the minimal amount necessary for self-defense or to insure an arrest. Punishment (if called for) should only occur after a judicial process. The laws that police enforce and the way they use their power in enforcing laws determined by a democratic process, however indirectly.

The idea of a democratic police includes content as well as procedure. Thus for police to enforce laws that support racial discrimination even if passed by a legislature, is hardly democratic according to contemporary standards.

It is easier to specify democratic procedures than democratic content. But at the most general level such content involves respect for the dignity of the person and the ideas associated with universal citizenship, limits on the power of the state to intrude into private lives and public accountability.

In a democratic society police must not be a law unto themselves. In spite of strong pressures and temptations to the contrary, they are not to act in an explicitly political fashion, nor to serve the partisan interests of the party in power, or the party they would like to see in power. Their purpose must not be to enforce political conformity. Holding unpopular beliefs or behaving in unconventional, yet legal, ways are not adequate grounds for interfering with citizen’s liberty. When opponents of democracy operate within the law police have an obligation to protect their rights, as well as the rights of others.

In an important sense a democratic police is a neutral police. For example in a racial or labor disturbance police are not to take sides, nor should they spy on, or disrupt the legal actions of an opposition political party.

Democratic societies strive for equal law enforcement. Citizens are to be treated in equivalent ways. Police are trained to behave in a universalistic fashion. Should their personal attitude depart from the demands of the role they are playing, this must not effect their behavior. Police show neutrality if they simply enforce the rules regardless of the characteristics of the persons or group involved (e.g., their race or social class).

But apart from this ideal, there is a second sense in which police are not neutral –they are agents of a particular state and enforce the laws of that state. To those who disagree with those laws, police behavior will not appear neutral since it is on behalf of the regime in power. This is one reason why even in a democratic society police are likely to be much more controversial than other agencies of government.

Varieties of and Supports for a Democratic Police

There are social scientific and moral debates over what practices are most conducive to a democratic police (e.g., centralization vs. decentralization, specialists vs. generalists, internal vs. external controls, closeness or distance from those policed, maximum or minimum discretion, single vs. lateral entry). But it is clear that a democratic police can take many forms.

Democratic societies show wide variation in their police systems. For example in the United States we have a quasi-military, rather decentralized, non-standardized, fragmented system, although one which mixes local and national police agencies. There is a single entry system. Those who supervise come from the rank and file. There is a Bill of Rights and other laws, which significantly circumscribe the behavior of public police. Private police and citizen initiatives are permitted. Police have relatively little to do with the judicial system until they actually make an arrest. The adversarial system gives the accused opportunities to challenge the government’s case. Police have powers denied the citizen. There are clear procedures for citizens to file complaints against police and police are subject to a greater degree of direct political control than in many countries in Europe.

In Britain policing is explicitly non-military and local, although more standardized than in the U.S. Responsibility for controlling it is shared among the Home Office of the national government, a local police authority and the head of the local force. There is no formal Bill of Rights, yet in principal police have no power beyond that of the ordinary citizen and police are unarmed. Citizens are seen to have a responsibility for contributing to the policing of their own communities. Internal organizational and self-control are emphasized. The symbolic meaning of police as representative of the nation is stressed and police are trained to see themselves as exemplars of moral behavior. The development of the British police has involved a continual debate about how to protect democratic liberties while maintaining effectiveness against crime and disorder.

In France policing is highly centralized and less service and community oriented. There is a single national legal system. There are rival national police systems (one, the Gendarme is a part of the military and the other, the National Police is a part of the Ministry of Interior). They serve the national, not local government and are subject to civilian control at the higher levels. Private policing and citizen involvement are not valued to the extent they are in the Anglo-American tradition. Through a system of lateral entry, police leaders are recruited directly into supervisory ranks. The prosecution plays an important role in criminal investigations. The judicial system is non-adversarial and it is relatively difficult for citizens to file complaints against police. Given its turbulent political history, the French believe that if democracy is to be protected, the rights of society must take precedence over those of the individual. Police are given greater leeway in the collection of political intelligence.

The democratic police ideal is generally supported by a variety of organizational means including a division of labor between these who investigate, arrest, try and punish; a military-like bureaucratic structure which limits discretion and tries to create audit trails; the separation of police from the military and the creation of competing police agencies rather than a monolith; external agencies (or compartmentalized parts of the organization) that monitor its behavior and that must give permission for certain highly intrusive actions; police who can be readily identified as such (e.g., in uniforms with names or identification numbers and clearly marked cars) or in the case of undercover police whose identity is hidden, a courtroom trial in which police deception is publicly revealed and judged; and rotation of assignments. These efforts involve the belief that liberty is more likely to be protected if power is diffused, if competing agencies watch each other and if police identities and actions are visible.

Given the potential for abuse, police face numerous external and internal controls. In the United States police are in principle bound by federal and state constitutions, statutes, and common law. Courts through the exclusionary rule attempt to control police behavior by excluding illegally gathered evidence. Underlying this is a belief that it is less evil for some criminals to escape than for the government to play an ignoble part. Courts may also issue injunctions against particular police actions and may offer citizens compensation for violations. Prosecutors may play a role in police supervision (this has become more important but is still generally less important than in Europe). Prosecutors may refuse to accept cases police present and may prosecute police for criminal violations. Legislative bodies through the passage of laws, control over appropriations, the ratification of appointments, and holding oversight hearings may also exercise some control. Executive branch authorities, such as governors, mayors and city managers, agency heads, police commissions, citizen review boards, auditors (and in several European countries "ombudsmen") also exercise some control. Internally control of police is sought through selection, training, defined procedures, policy guidelines, and supervision.

In defining a given system it is necessary to look beyond formal documents and expressed ideals to actual behavior. For example in the former USSR citizens in principle were granted many of the same political rights as in the United States, but in practice these were denied by the KGB, particularly when it was concerned with political conformity.

On the other hand even systems that are democratic will have examples of undemocratic police behavior. Police organizations in the United States and Western Europe are not without occasional lapses (e.g. unlawful stops and searches and political surveillance, inappropriate use of force, the use of police power for personal gain and discrimination in law enforcement), but these are hidden and contrary to the official policy.

Community Policing

A community-policing model has become more prominent in recent decades. In some ways this represents a break with the professional-bureaucratic, technical, law enforcement model of policing which sought to keep police from the community in the presumed interest of neutrality and efficiency. This model focused on arrest after a crime occurred.

In contrast community policing seeks to immerse police into a local community (e.g., by a walking assignment to a particular neighborhood rather than by a patrol assignment by car to a large area). Police are encouraged to view themselves as community advocates and to be problem-solving partners with a local community. They should anticipate community needs and problems and intervene to solve them (e.g., helping potential criminals find jobs or lobbying for lights in a city park). Police should be generalists rather than specialists in a decentralized organization.

Community policing is an explicit effort to create a more democratic force. It is based on the assumption that policing will be more effective if it has the support of, and input from the community and if it recognizes the social service and order maintenance aspects of the police role. Of course this can involve sticky issues such as what constitutes a community, how to resolve tensions between professionalism/expertise and democratic participation and the danger of police being captured by a given segment of the community.

A related development here is the spread of private police. In the United States there are far more private than public police and their number has significantly increased in recent years. This raises important questions for democracy. On the one hand such police can serve as a check on public police and can enhance democracy through their independence. They may also contribute to a more orderly society. Yet they may also undermine democracy. When a basic need such as security is treated as a commodity, the poor are clearly at a disadvantage. The effort to restrict the right to use coercion to agents of the state under law, can be a means of increased societal equity. The first goal of private police is to serve their employer rather than justice, or the public at large. Much of the activity of private police involves informal action and is not subject to judicial review. Private forces are generally subject to far less stringent controls than public police. They may also enter into questionable alliances, carrying out illegal or unethical actions for public police. With their greater resources, there is also a danger of their being co-opted by public police.

New Threats to a Democratic Police

In 1835 Alexis de Tocqueville, a French visitor to the United States who was a great student of American democracy, felt that the state was acquiring more and more direct control over its citizens. He did not specifically have police in mind. But 20th century developments in policing support his observation.

To do their job effectively many police believe that they cannot know too much about the community, and they dare not know too little. With their special powers, police (along with the military) are a much greater potential threat to democratic regimes and practices than is the case for other government agencies such as those concerned with education or welfare. The special powers of police come with special responsibilities and the need for continuous vigilance. The potential for abuse is ever present. Democratic policing should be viewed as a process and not an outcome.

An important task of a democratic society is to guard against the misuse of physical coercion by police. A related task is to guard against the softer forms of unwarranted secret and manipulative control made possible by new technologies. Because these are often subtle, indirect and invisible, this is clearly the more difficult task.

In his novel 1984 George Orwell described a society with both violent and nonviolent forms of social control ( a boot stomping on a face and Big Brother watching on the video). In linking these two Orwell offered a model based on his experiences during the Spanish Civil War and his observations of the former U.S.S.R., Germany, and Italy. Yet in contemporary democratic societies these two forms are increasingly uncoupled, and the latter is in ascendance. Aldous Huxley in his novel Brave New World emphasized softer forms of control. He may be a better guide to the future than George Orwell.

To judge current democratic societies only by traditional standards can result in a vision which is too narrow and an optimism which may be unwarranted. Given powerful new technologies that can silently and invisibly pierce boundaries of distance, darkness, time, and economic and physical barriers that traditionally protected liberty (if also violations), police may become less democratic in their behavior. New information extractive technologies are making it possible to have a society in which significant inroads are made on liberty, privacy and autonomy, even in a relatively nonviolent environment with democratic structures in place.

In recent decades subtle, seemingly less coercive forms of control have emerged such as video surveillance, computer dossiers, and various forms of biological and electronic monitoring and behavioral and environmental manipulations.

Technology may make police more efficient. Powerful computer data bases that analyze crime patterns may help solve crimes and locate perpetrators, new forms of identification involving DNA or computerized fingerprinting may help convict the guilty and protect the innocent. New technologies may help control police. For example police accountability might be enhanced by the video-taping of all police encounters with citizens. This could serve as a deterrent to misbehavior and offer a new form of evidence in disputed accounts (although it might also mean a more passive police hesitant to innovate or take risks).

However there is no necessary guarantee that the enhancements of police power offered by new technologies will be used to protect, rather than to undermine democracy, particularly when this can happen so silently and effortlessly. A democratic society must ask the question, "how efficient do we want police to be?" Democratic societies have traditionally been willing to sacrifice a degree of order for increased liberty.

Democratic societies experience a continual tension between the desire for order and the desire for liberty. Both are essential. While as the case of the police state suggests, one can have the former without the latter, it is not possible to have a society with liberty which does not also have a minimum degree of order. The balance between these will vary depending on the context and time period. Democratic policing seeks to avoid the extremes of either anarchy or repression.

In an open democratic society which respects the dignity of the individual and values voluntary and consensual behavior and the non-violent resolution of conflicts, police, with their secrecy and use of violence, are an anomaly. They are charged with using undemocratic means to obtain democratic ends. Police offer an ethical and moral paradox that will forever make democratic citizens uncomfortable.

Restrictions on police are not a sufficient guarantee of freedom. Taken too far, they may even guarantee its opposite, as private interests reign unchecked and/or citizens take the law into their own hands. Yet a police whose power is too great is also a danger. President Abraham Lincoln noted that a government, must of necessity, not be too strong for the liberties of its own people, nor too weak to maintain its own existence. There is a paradox in the fact that a democratic society needs protection both by police and from police. On a broader scale, this is one of the major challenges of democratic government. President James Madison argued that the government must be able to control the governed and also control itself.

By Gary T. Marx