Unpacking the Heritage Foundation’s policing report.

The Heritage Foundation Picked the Wrong Time to Discount Biased Policing

The Heritage Foundation Picked the Wrong Time to Discount Biased Policing

The law, lawyers, and the court.
Sept. 26 2017 2:26 PM

The Heritage Foundation’s Terrible Timing

It picked the wrong week to argue that biased policing is really just a matter of bad PR.

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On Sept. 18, the conservative Heritage Foundation issued a report, “Policing in America: Lessons from the Past, Opportunities for the Future.” Its timing could not have been more awkward: Heritage calls concerns about racism in policing a “false narrative” at the very moment the country is fixated on professional athletes’ protest of just such racial concerns. Colin Kaepernick, the first to “take a knee,” has been clear that his target was police shootings of black Americans, and this point has been reiterated by the players who have joined him.

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As Heritage sees it, though, the police simply are suffering from a public relations problem, the result of which has undermined “highly successful law enforcement techniques, such as stop-question-and frisk” thereby denying these valuable “tools to officers.” Believing that police “lost control of the narrative,” Heritage calls for “marketing, branding, and media relations” to “promote community trust and transparency in their organizations.” Heritage’s model here is “the military,” which “vastly outspends the police in campaigns designed to enhance its reputation.”

Let’s start with a dose of reality. In communities in which trust in police is suffering the problem is not public relations; it’s a long history of police conduct that has managed to leave those communities both underpoliced (in terms of crime prevention) and overpoliced (in terms of stops, disrespect, and too many folks being hauled off to jail for relatively minor offenses). Community members who desperately need the police for safety have come to fear calling them, sometimes with good reason.

Contra Heritage, stop-and-frisk is exhibit A of the problem. Heritage seeks to reaffirm the policy’s validity by accusing its critics of skipping over the middle step, which involves “questioning” those stopped before a frisk occurs. That’s wrongheaded in pretty much every direction. What people in those communities object to is being stopped in the first place—repeatedly and often rudely—when they have done absolutely nothing to justify it. And the frisk, which is supposed to happen only if the officer fears for her or his safety, can happen as often as 50 percent of the time.

Heritage favors “data-driven” policing, so let’s look at the numbers. Heritage claims that the racial pattern of stops can be explained because crime statistics indicate people of color are committing more crimes. In this view, police are doing nothing but going where the crime is. The problem is they aren’t stopping the people who are criminals. In New York, which in the past was the epicenter of stop-question-frisk, hundreds of thousands of people were subjected annually to the indignity of a police stop, yet arrests occurred just around 6 percent of the time. Weapons were seldom found, and the discovery of guns was a rare event indeed. Hundreds of thousands of people stopped to no good end. That’s what erodes community trust.

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Heritage argues that the police finding no guns proves the strategy worked, but all it demonstrates is that the strategy is flagrantly unconstitutional. In the view of Heritage, widespread stop-and-frisk scared bad guys into leaving their guns at home. In truth, careful social-science studies into the effect of the policy are few, in conflict with one another on whether and how it affected crime rates generally, and say virtually nothing about gun violence.

But the problem is larger than that: The police can’t just grab countless people on the street at will and frisk half of them on the notion that it will scare others into behaving. Under the Constitution, to conduct stops-and-frisks the police need “reasonable suspicion” that a crime is being committed or the person is armed. Given the low success rates of these stops-and-frisks, either the police were not very good at knowing when there was reasonable suspicion, or—as appears now to be the case— they were ordered to stop as many people as they could without sufficient justification, as a manifestation of “zero tolerance” or “broken windows” policing.

What the data do show is that safety can be achieved constitutionally. New York, today, is case in point: Crime, including gun violence, is at record lows in New York City, gun seizures are up, yet police stops have dropped by 90 percent. The NYPD is justifiably proud of this. As the deputy commissioner for legal matters, Larry Byrne, said to me, this shift “is critical to public safety and improved community-police relations, trust, and mutual respect. It can’t be lost to or hijacked by false narratives.”

What’s tragic is that Heritage knows all of this. Framed differently, its report could have helped the nation move forward with an agenda for policing that works. Buried lower in the report is approval of most of the techniques that forward-thinkers on policing are promoting. These include procedural justice (“treating people with respect”); community policing (“a vital part of any effective crime-prevention program” because building relationships in neighborhoods builds trust); de-escalation training (to defuse “potentially violent situations, thereby decreasing the need to use force”); spending more time as “guardians of the community,” not warriors; and using data-driven techniques to focus attention on the small number of people actually responsible for violent crime. That’s an agenda folks across the ideological spectrum could sign on to.

Instead, it’s as though there was an evil genie who hijacked the front-end of the Heritage Report and filled it with bombast to keep certain audiences happy, no matter what the reality or how sane some of what followed happened to be. The regrettable thing is that Heritage’s apologia for policing’s past is being aired at the same exact time as one of the most effective and visible protests over race and policing in recent memory. There are “Opportunities for the Future” here, they just aren’t the ones that follow from Heritage’s “Lessons from the Past.”

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