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Preventive policing unjustly warrants abusive police practices

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JANUARY 24, 2020

Predictive policing and programs like it have been subjected to much warranted criticism in recent years. But critics often miss the deeper and older problem: the preventive principle of police.

The preventive principle engenders and justifies abusive police practices, such as stop-and-frisk, “quality-of-life policing” and, more recently, algorithmic policing. These types of programs, which not only lend themselves to abuse but are abusive in their very nature, would themselves be prevented if we did away with the idea that police should engage in “crime prevention.”

We would do well to do away with the preventive principle of police, but this won’t be easy. Dedication to crime prevention is the defining characteristic of modern American policing.

We can distinguish modern police forces from older police organizations by their uniforms, salaries, centralized administration and professionalism. But the defining characteristic of a modern police force is that it is dedicated to prevention, which was not always thought to be the business of police.

Modern police forces attempt not only to seek out those they suspect of behavior labeled as criminal; they also seek to prevent this kind of behavior from occurring in the first place. Modern police are therefore concerned both with what has happened in the past and with what might happen in the future, as well as seek to prevent the latter by manipulating the former through technical mechanisms, such as algorithms.

The long story of the modern, preventive police starts in 18th-century England.

At the close of the 18th century, Patrick Colquhoun, a Scottish merchant and magistrate, published “A Treatise on the Police of the Metropolis,” which articulated the preventive principle of police. The idea Colquhoun described is usually attributed to Henry Fielding, another magistrate, who suggested that a preventive police force be formed as early as 1750, but Colquhoun is famous for popularizing the idea. (It’s worth noting that the term “police” was used in 18th-century British political thought to describe the science of government generally, which is vastly different than its contemporary meaning in American political discourse, but that is a topic for another op-ed.)

Jeremy Bentham, the great utilitarian thinker, made a similar proposal in the “Constitutional Code” after Sir Robert Peel established London’s police force. The force was dedicated to the prevention of crime and is widely considered the world’s first modern police force (this is where the London police get the nickname “Bobbies” from).

More than 100 years after Bentham published his “Constitutional Code,” the British police historian Charles Reith published an article entitled “Preventive Principle of Police,” in which he held up the preventive principle as one of Britain’s “most valuable contributions to society.”

The preventive principle influenced American police from their very formation after the first third of the 19th century. American police professionalizers of the 20th century, including August Vollmer, the city of Berkeley’s famous chief of police, and his protégé, O.W. Wilson. The same can be said of William Bratton, the most famous contemporary American police officer.

Just as there is a long line of proponents of preventive policing, there is an equally long line of opponents of the principle. For instance, Colquhoun’s 18th-century British contemporaries — jurist William Blackstone and philosopher Adam Smith among them — objected to the idea of a preventive police on utilitarian grounds.

I, too, object to preventive policing, but I come at it from a very different angle.

When Blackstone and company opposed the formation of a preventive police force, they did so from the standpoint of the prospective — what might be. I object from the standpoint of the retrospective — what has been.

The preventive principle has spawned the most oppressive policing programs of the past 50 years, including the newly fashionable algorithmic policing. The preventive principle simply has no place in a society that values freedom.

Nevertheless, the crime prevention program has proven attractive to policy-makers across the political spectrum. Those who lean right embrace crime prevention, tending to focus on individuals who might break laws. Those who lean left embrace the logic of crime prevention but tend to look to society’s structures for intervention. For instance, poverty programs are often justified in terms of their potential to prevent crime. The problem here is that crime prevention works very well as a justification for increased harshness (streamlining the administration of the death penalty, for example) but does not work very well as a justification for reduced harshness (relieving poverty).

I should point out that I am not opposing all that might fall under the umbrella of “crime prevention.” I am only opposing crime prevention as it has existed.

Clearing the nation’s criminal codes is one crime prevention strategy that shows particular promise. This approach has been championed by the political scientist Naomi Murakawa, among others. It stands to reason that since criminal laws must be written down (with exceptions in places such as Massachusetts, where the anachronistic and constitutionally dubious category of “common-law crimes” has been retained), if less behavior is labeled criminal through statutory law, then less crime will be committed. In essence, if a legislature makes less stuff criminal, there will be less crime. This approach would prevent crime and guard against the abuses of the preventive principle. Crime prevention does not get much better than this — experience tells us that it does, however, get much, much worse.

Michael Arjun Banerjee is a graduate student in jurisprudence and social policy at UC Berkeley, where he studies legal history and legal theory.
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JANUARY 24, 2020


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