The Challenge of Policing Minorities in a Liberal Society by Joseph Heath
In a recent Richard Hanania post, he referenced an academic named Joseph Heath, a philosophy professor at the University of Toronto. In doing a bit of background research on Heath, I found that he had written a paper, entitled, “The Challenge of Policing Minorities in a Liberal Society.” I also saw that the paper is free online. These subjects–(1.) problems with liberalism, (2.) problems with multiculturalism, and (3.) chronic misbehavior–interest me, so I decided to read the paper, hoping to learn about how the theory of policing interfaces with liberalism and majority/minority populations.
What I found was a fairly complex paper, and my thesis on it is a bit shaky, but ultimately I believe what I’m seeing is a left-liberal attempting to substantiate a rightwing claim in the academic literature. Part of that suspicion is founded on Heath’s authorial tone in his Substack aping Scott Alexander; part of the suspicion has to do with my own familiarity with academic work that consciously avoids making observations that would support rightwing claims. Heath’s paper, based on my experience, strays beyond the safety of the leftwing herd, which I want to encourage. At the same time, he makes a number of questionable claims. In this review, I will point out where I think he’s made mistakes and where I think he’s made incendiary rightwing claims within the context of the leftwing race nationalism often represented within academic departments of universities.
Enforcement Pyramid and the Two Primary Models of Policing
Before getting into what Heath describes as the two primary models of policing, it’s important to understand this so-called “enforcement pyramid,” apparently cited by some criminologists to describe means of social control that culminates in police action.
At the bottom of the pyramid, Heath says, criminologists observe “intrinsic motives” as the guide for good and moral behavior: people natively behave because they want to, because it is natural to. The pyramid “then ascends through various mechanisms of informal social pressure,” which means the enforcement mechanisms are fear of embarrassment or loss of social status associated with bad behavior: people behave because they want to be employable, marriageable, clubbable, etc. At the top of the pyramid is “coercive punishment,” reserved for the minority of people who cannot or will not be guided to the appropriate standard of behavior by nature or nurture; they must be forced to behave–or removed from society altogether.
With this knowledge of the means of social control–especially the knowledge that for almost everyone, appropriate conduct is natural and comfortable–we can begin to learn about the two primary policing models.
Communitarian Policing
Heath begins the section on communitarian policing with the following sentence, “Although philosophers sometimes speak of law and morality as though they were quite distinct, when one turns to the social reality of crime and enforcement it is difficult to not be struck by the fluidity of these categories.” This is a telling sentence in the larger context of this paper, which seeks to describe the inadequacy of value-neutral liberalism in the face of community expectations and obnoxious misbehavior: he has to immediately separate philosophers and their ideas from what actually happens in the world.
About a page later, Heath gets to a kind of definition of communitarian policing: it “involves [police] in a wide range of activities variously described as ‘order maintenance’ or ‘peacekeeping.’” It “emphasizes the continuity and relations of mutual support between different systems of social control” and “tolerates a great deal of ambiguity about the proper scope of police power.” It is, therefore, “in tension with the commitments of political liberalism.”
What does this mean? It means that the “community policing” model involves a lot of discernment on the part of the police, whose job is not simply “law enforcement” but the maintenance of social order; it means responding to the calls of concerned old ladies who aren’t experts on law, but feel uneasy about some guy stumbling around, bumping into trash cans. Indeed, Heath says,
For the average patrol officer, this sort of call–to mediate a conflict between a landlord and tenant that is beginning to get out of hand, to intervene in a domestic dispute that has woken up the neighbors, to disperse a group of young people drinking in the park, to evict a bar patron who is refusing to leave, to deal with a mentally ill person who is scaring passengers at a bus stop–constitutes the overwhelming bulk of police work.
For example, a leering drunk is menacing women on a subway car. People there feel out of control; they feel like the drunk is so insensible to norms of behavior that he is likely insensible to norms of morality–that is, he might be actually dangerous, and they need a cop–or anyone–to reestablish the sense of safety and order that that this single disruptive dumbass has broken.
Yet, he might not have actually committed a crime at this point–or, he has committed only a “common law misdemeanor.” These are laws “prohibiting loitering, vagrancy, nuisance, disorderly conduct, public mischief, and public intoxication,” which results in “‘overcriminalization,’ in which the sphere of individual freedom is essentially extinguished by the legal prohibition of practically all conduct.”
There is a sense of sympathy in Heath’s tone when describing these laws as almost arbitrary; it is in his own words that he describes these laws as a kind of “prohibition of practically all conduct.” The implication is that, in Heath’s mind, there is a sense of arbitrary police power in America, which victimizes innocent eccentrics and romantics, harmless drunks, and those who–like Goths, say–express themselves in alternative ways.
In reality there is a different problem: the leniency afforded to those who–time and time and time again–cannot or will not conform to basic requirements of civil society.
Still, we are in Heath’s world, and his concerns about individual liberty lead us to the next model of policing.
Legalistic Policing
The legalistic model conforms better to value-neutral liberalism that imagines jarhead cops having to grind their teeth as Ken Kesey and his Merry Pranksters make oinking sounds at them from a psychedelic school bus; it is the libertarian vision of police, concerned with “state coercion”; it “restricts the use of force by police to direct enforcement of the law.”
Therefore, “police should have no power over the ordinary citizen, so long as the individual is not currently acting in an unlawful manner and is not suspected of having committed some other crime.”
In practice, this means that the subway drunk is just exercising his freedom of speech; the guy stumbling around your neighborhood in the middle of the night is out for a walk; the screaming family with beer bottles in the yard are just eccentrics. These people haven’t yet committed a crime; therefore police–who have very little discretion and simply enforce law as it is written–have no power demand that they toe the line (as drawn by mere majority consensus).
Problems in the “Tensions in the police role” section
There are a number of assumptions in the paper that indicate that Heath assumes that disproportionate police interactions with minority groups are the fault of the police or other systemic forces.
He approaches this subject ominously, and for the sake of clarity, I’m going to quote him at length so you can see how he begins to relativize standards of behavior and problematize police judgment.
Equally important is the role that judgments of respectability play in determining police response. Generally speaking, police are more likely to intervene, and to intervene punitively, when the person causing trouble belongs to a less respectable social category, just as they are more likely to take complaints seriously when they come from respectable individuals. The respectability of the “ordinary, law-abiding citizen” involves a generalized willingness to conform to social expectations and to defer to legitimate authority, and so is impaired by indications of either a history of, or propensity toward, social deviance. Thus the police focus their attention on individuals belonging to classes who pose the greatest threat to the social order. The most obvious target is, of course, young men. Apart from being responsible for almost all serious crime, males between the ages of 15 and 30 perpetrate most low-level disorder, violence, vandalism, petty theft, and harassment. But police also focus on groups who are seen as falling outside the boundaries of ordinary systems of social control: the unemployed, alcoholics and drug users, gang members, prostitutes, vagrants, and, until recent years, homosexuals.
Here’s the thing: This kind of framing requires a lot of citations. Because of the controversy around this subject, which is to say, because of the willingness of embedded partisans within academia to lie about this subject, because of the sensitivities around fact-checking the claims of black nationalists or anti-racists or whites with leftwing views who work within this field, I need data; I need reviews of literature; I need expert testimony, at minimum; I also need the author to describe how he has scrutinized the sources, knowing that there is an enormous demand for scholarship that will blame society and police for minority crime rates, and so on.
Instead, we get, “generally speaking,” cops beat up minorities; “generally speaking,” cops listen to those who “conform to social expectations,” and so on.
Says who?
I’d say that, generally speaking, police are reasonable, rational people, who respond as best they can to a small number of dumbasses who cause problems everywhere they go—at home, in the street, at the doctor’s office, at Walmart, at the bus stop, and, inevitably, when talking to police.
This is the assumption I make based on my experience (1.) having taught in big city public schools and (2.) working with and speaking with cops.
Further down, we get the following.
The determination of who is respectable and who is not involves a set of highly conventional social judgments, which are inevitably based on perfectionist values. While the law in a liberal state attempts to remain neutral on a wide range of questions, members of society are not subject to any such restriction, when it comes to structuring the informal order.
See, according to Heath, values are relative; moral behavior is relative, and expecting reasonable, sane behavior out of everyone is based on perfectionist values. For instance, who among us hasn’t sauntered over to the local high school, looking for someone to hurt and then committed an unprovoked stabbing of a 15 year old boy? Who among us hasn’t had 21 prior arrests and shot a police officer to death during a traffic stop?
What Heath is trying to argue here is that the problem of minority overrepresentation among those who have interactions with police, end up as criminal defendants, or are actually convicted offenders is a simple matter of relative values. Police—who are probably white—expect everyone to behave like them: perfectionists! Police—who are white and therefore necessarily in good standing with the dominant American culture—don’t know anything about non-white people and therefore treat these people unfairly.
These are assumptions that, let’s say, I’m unwilling to make.
Heath continues,
We are all familiar with these judgments: staying in school is better than dropping out, hard work is better than indolence, monogamy is better than philandery, sobriety is better than alcoholism, keeping one's home neat and in a state of good repair is better than letting garbage pile up in the yard, waking up before noon is better than partying all night, and so on.
And we all know cops are total perfectionists when it comes to sobriety and monogamy, which is why the communitarian policing model results in so many oppressive and downright prejudiced interactions: because out of touch cops insist on judging minority kids by their own standard of moral perfection!
Finally, he gets to the point, which I’ve emphasized in italics.
When a police officer is trying to decide whether a particular teenager is a “good kid,” who seems to have found himself in the wrong place at the wrong time, or else a “troublemaker,” who needs to be dealt with more harshly, it is often these perfectionist judgments—about the values of diligence, sobriety, conscientiousness, and conformity—that are used to make the determination.
Here’s the thing: the divide between an upmarket suburban white guy and downmarket urban black guy is, in some ways, profound. But, in terms of simply understanding one another—especially when it’s your job to understand the other—it is not hard at all. Ask any NYC DOE teacher, the vast majority of whom are white, about the skulking, monosyllabic kid in the hoodie covered in guns and curse words over there.
The answer is, Who, Jeremiah? He’s an honor student, who’s polite and refined and solicitous and wonderful; he loves anime and cars. I taught his older brother, too. They’re great kids.
Cops are the same way. They understand whose brother is in jail, whose dad was killed, whose mom works at the donut shop—they get all this stuff because it’s easy to get. They get this stuff because it’s really not hard to judge a person by their actions rather than their skin color or dress or whatever—even if, and this may strain belief, the cops are white and the neighborhood kids are black.
Cops in New York, in Baltimore, in Chicago, in Philly, in DC see black kids with their hoods up 100 times a day, every day. It isn’t news that black male teenagers wear hoodies and skulk around looking like guilty teenagers, and cops, who are human beings, generally speaking don’t have trouble identifying who the good and bad kids are within the context of urban black culture, or urban Puerto Rican culture, or urban Guatemalan culture, or whatever. Further, they understand that every teenage drug dealer is not a bad kid; they understand this stuff because they themselves have made mistakes in the past, they themselves have gotten DUIs or into fist fights or been thrown out of their houses as teenagers or knocked up a girlfriend or partied out of college or whatever.
Most of all, what people don’t understand, is that cops are constantly cutting people breaks. Every day, they are turning a blind eye to people texting while driving, smoking weed or drinking in public places, and so on.
That said, when anyone reaches for their waistband or refuses to remain calm or rolls all over the ground or spits at them or whatever, the police are allowed to react. Of the incendiary videos associated with the Black Lives Matter movement, very few of them have appeared to me to be related to malicious police behavior. The inciting incident—the Michael Brown case—was thoroughly investigated by the Obama Office of Civil Rights, which vindicated the officer.
Still, Heath expects readers to take for granted is that dominant culture police are blind to minority humanity by base prejudice.
I am not ready to assume that, but then again, I am maybe not the intended audience, which brings me to the next point.
Persecution and the art of writing
Leo Strauss wrote a book called Persecution and The Art of Writing, and in it he explains that when reading historical writing, one should make sure to read “between the lines,” as it were. I read it many years ago, so I don’t have a perfect recall of exactly what it says, but I remember the thesis is that it is possible to divine subversive messages in the writing of certain historical writers. Even when writing subversive ideas meant death penalty or ex-communication, dissident scholars were expressing these ideas.
The stakes aren’t as high today, but part of me wonders if we’re seeing something similar in this paper. For instance, look at the following quote on the question of racism among police officers.
In particular, it is not clear to what extent expressed or ideational racism is related to discriminatory treatment, and which direction the lines of causation flow; to what degree discriminatory attitudes are reproduced through police culture, or arise from the situational exigencies encountered in the course of policing; and which aspects of discriminatory treatment are instrumentally rational, given institutional objectives, as opposed to reflecting bias. In particular, there is the by-now-widespread observation that screening applicants more carefully and hiring minority officers may not do much to improve police relations with members of the minority.
It appears to me that he’s saying that discriminatory attitudes are “reproduced”—as in, spread to previously non-racist people—because of the job; that could be interpreted in two ways: (a.) in order to fit in, non-racist cops need to become racist, or, (b.) non-racist cops become racist because of contact with minorities.
Maybe, we should assume the former is true. The author wouldn’t suggest contact with minorities by itself creates racist impressions. But, in the next sentence, he wonders if discrimination is “rational” in order to maintain order and keep peace. Finally, he concludes that hiring minority cops doesn’t improve minority-police relationships, which is to say: this idea about the minority/majority culture clash issue is widely known to be wrong, anyway.
So, to recap: hidden within this otherwise corny liberal analysis of criminal justice theory, we see a few assumptions that stray deeply into rightwing territory.
Later, he suggests the following.
It is noticeable, for example, that certain minority communities, particularly those with a strong religious character, do not suffer from bad policing, in part because they possess significant internal social capital, and so are able to self-regulate without frequent or major recourse to force.
Then still later:
But it also requires a willingness on the part of the minority group to assimilate, and not, for example, to assert minority group membership as an important aspect of personal identity or to expect everyday recognition of it as such.
Finally, and most important for this Substack:
The way that a liberal state functions at the level of normative philosophical theory bears only a rough resemblance to the way things work on the ground, when its guiding principles confront an often recalcitrant social reality. In some cases, the world should be changed in such a way as to bring it into closer alignment with our normative ideals, but in other cases, the normative ideals should be adjusted in order to better reflect practical constraints arising from the world. The case of policing is, I believe, an instance of the latter, which is why I believe that reform efforts must work within the framework of a communitarian policing model.
This final passage openly advocates for an illiberal policing model, which it veils as “communitarian.” And, maybe, he really means that: values remain relative, but communities should be in charge of establishing them, not individuals.
Heath might not ever understand that morality is not a social construct, but he does understand that value-neutral liberalism fails to serve the basic needs of nice families who want to live in peace, which is a significant problem for a political paradigm that seeks to reshape the entire world.