The Equal Protection Origins of Broken Windows Policing

In this post I want to sketch some preliminary thoughts about the invention of proactive policing in the 1960s, whose core ideas laid the groundwork for what scholars and police, by the 1980s, would call Broken Windows policing.

The late sociologist Albert Reiss, Jr., is credited with coining the term “proactive policing,” to refer to police-initiated encounters with citizens, as opposed to reactive encounters initiated by a citizen request for service. Reiss and co-author David J. Bordua introduced the concept in a 1966 article in the Journal of American Sociology. Then, in 1971, Reiss explained the idea further in his book The Police and the Public.

When police initiate an encounter with a citizen, Reiss writes:

“they serve as a proactive organization, pursuing matters through investigative activities, preventive patrol, and direct intervention in the lives of citizens (including the techniques of stopping, frisking, searching, and questioning). Excluding motor vehicle violations, proactive policing generally brings a substantially smaller proportion of incidents to police attention than does citizen mobilization” (64).

Reiss concluded that proactive encounters were more likely to cause conflict and tension with citizens than reactive encounters. That is, citizens were more likely to see as legitimate the police actions that they requested; whereas, the police-initiated “intervention in the lives of citizens by such means as detaining citizens for questions…are often regarded by citizens as harassment, infringement upon individual rights, or unauthorized intervention” (64).

The Police and the Public was based on half a decade of direct observation of police on patrol. Reiss, on his own and as research director of President Lyndon Johnson’s crime commission, documented tens of thousands of police interactions with citizens in half a dozen cities between 1962 and 1967. Empirical research on police behavior was still in its early stages in the early 1960s, when Reiss began. As one of the leading experts in the field, and as a pioneer in the study of what he termed on-the-street “encounters” with citizens, Reiss’s expertise was solicited by the news media, police organizations, and the federal government.

Thus, in November 1967, the National Advisory Commission on Civil Disorders contacted Reiss for general commentary on the national crisis of police legitimacy, which the hundreds of urban rebellions had brought to the fore. Reiss responded with a masterful letter, showcasing his deep expertise, broad intellectual perspective on the police, and his sincere commitment to improving the police.

In the letter Reiss rejects the traditional focus on improving “police-community relations.” Rather, he homes in on what he considers to be the primary purpose of police and its fundamental failing in the United States in the mid-1960s: protecting citizens from crime and disorder. The point of the police is not to be nicer, he says at one point, but to bring order to the streets and keep the citizenry safe.

Large police departments had streamlined their operations and developed sophisticated computer-assisted systems to dispatch officers quickly in response to calls for service. But, Reiss argues, the police could, and should, do better, by intervening more directly, and proactively, in the lives of the poorest, most vulnerable citizens. He rarely mentions race, but given the context of the riots and the police crisis of 1967, urban African Americans are no doubt the primary constituency he had in mind.

Here he is, setting up the case for a fundamental reconceptualization of the police, from reactive crime-fighters to proactive public service:

Now to turn to say a few things very briefly about other matters we discussed. I suggest that the core problem of policing today is the problem of service. So far as law enforcement is concerned the main dilemma is how you can protect the citizen against victimization without exacerbating the relationships between the police and the community and with due attention to the rights of the citizen.
Now it is this latter problem that concerns me since it is clear that citizens in high crime rate areas are more concerned, if anything, about the fact that they are victimized than they are about civil rights. Unfortunately they feel that both criminals and the police victimize them. They want the police to be tougher with crime and criminals but to treat them more like human beings. I sympathize with them.
It is all well and good for us who do not live in these areas to become preoccupied with the problem of police-community relations and civil rights and even the demands for other kinds of police service and to forget that many citizens in these areas suffer from both crime and inadequate police protection.
But the main matter I expressed as of concern to me is that in our reorientation of police service to these citizens we may by our very programs convince them that they are second class citizens with a different way of life and one where crime and violence is part of that way of life. Let me give two or three examples to illustrate what I mean.

The key word in the above passage is victim. With all the attention given to police brutality and harassment, Reiss wants to remind his liberal audience that the people who live in poor neighborhoods are as, if not more, concerned with the matter of vicitimization. That is, poor urban citizens fear for their lives and expect the police to protect them. And, Reiss argues, they have a fundamental right not to be robbed, raped, and killed. What is the answer? Proactive policing.

In this letter Reiss showcases his strength as a supple, flexible thinker, able to entertain multiple concerns at once. He understands that reactive policing–where police wait for citizens to report crime–carries the least risk for police, whereas police-initiated stop, questioning, and frisk can elicit indignation, anger, frustration, and even violence. Granting that, Reiss asserts that police should press ahead and do what is right. Police should not assent to the norms of high-crime neighborhoods where citizens arm themselves in self-defense and take the law into their own hands. No, that would be inhumane and unjust treatment of the rest of the citizenry victimized by these actions. Rather, he argues, police should bring order to chaos, by force if necessary, through proactive policing.

I am prepared to argue that many of the proposed as well as present police practices may only lead to a conception of the Negro family and the Negro community as a place where we will tolerate a good deal of violence against one another, of internal deviance, and of an armed citizenry in the interest of good relationships between the police and the community. What community, I ask? Whose norms are we enforcing?
What we may end up with if we pursue this policy [of reactive policing] are areas of the city not unlike what the underworld was historically. Historically the underworld was literally a section of the city where crime was a way of life. No good citizen ventured into such areas and the function of the police was not to protect anyone inside but to protect those outside from those inside. I suspect that many well intentioned people are proposing a similar policy for current policing. Let’s worry less about whether we protect these citizens than whether we can protect people outside from them and reduce tensions between the police and the community.
There is a real dilemma for the policy maker and the police administrator in all of these questions. Put very simply, there is an important question of whether one should, or can, provide any more policing than “the community will accept”–whatever that might mean–or whether one provides policing in accordance with some model of what is right and proper regardless of how the citizenry feels. I suspect many police administrators try to do both things but without any really conscious examination of the consequences of taking that position.
Perhaps what my concern boils down to is that in a democratic society we cannot afford to institutionalize things as they are and we cannot afford to be coercive and restrictive in getting people to live up to our ideals–at least not without some broader consensus of what is involved.
To conclude these brief remarks, let me say that my concern is that everyone focuses on something called police-community relationships and wants somehow to make them better. But better for whom? Will I be safer in such a community? Will I feel I can go out at night? Any policy that is based on making people feel better about the police at the expense of making it a better place to live in the sense that the probability of victimization is reduced and that people’s problems are met is ill advised.

Reiss was prophetic to a degree. Large sections of the nation’s most populous cities would indeed be consumed by violent crime in the 1970s and 1980s, especially as the crack trade and the war on drugs exploded, resulting in open-air drug markets. Reiss was not advocating getting tough on drug dealers. He was advocating for enhanced protection of the people forced to live near and endure the daily nuisance and violence of drug dealers. He thought it patently unfair and unjust that society should let them suffer in service to some idealized version of “police-community relations.” He thought they deserved equal protection of the law — which in this case would be provided by the police.

But Reiss also acknowledged the social and human costs of effectively putting police in charge of poor urban citizens. Thus, in the penultimate paragraph above, he asks whether any democracy can “afford to institutionalize things as they are” — meaning, the extreme precarity of life in the ghetto in 1967 (1977, 1987, 1997, 2007, 2016) —  and at the same time he asks if any democracy can “afford to be coercive and restrictive in getting people to live up to our ideals” — meaning, to employ the police, i.e., brute force and coercion, to bring peace and order to poor communities. He knows full well that it is unfair and unethical that America should resort to arrest and jail almost exclusively to protect poor citizens. But in the absence of alternatives — i.e., a robust welfare state — he asks, too, whether it would not be unfair and unjust not to.

I’d argue that remains the question of our own time as well.

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