Handcuffed: What Holds Policing Back, and the Keys to Reform
Malcolm K. Sparrow
Brookings Institution Press, Washington, D.C., 2016
It is hardly news that America’s police forces are struggling with their mission. The recent spate of high-profile police killings and resulting riots have raised serious concerns about institutional racism – leading to the formation of the Black Lives Matter movement – a situation exacerbated by the ongoing war on drugs and the increasing militarization of U.S. police forces since 9/11. [1]
When it comes to the problems of U.S. police departments, Malcolm Sparrow’s unique background lends particular credibility to his views. A mathematician, former police officer, and professor in public management at the Harvard Kennedy School, he has the practical, analytical, and strategic insights needed to effectively guide police in their community and problem-solving work – if only he could find a receptive audience.
Handcuffed – in a nutshell – is a lucid, compelling plea by the author for U.S. police to re-dedicate themselves to their core work of harm reduction, through community and problem-oriented policing.
The Legal vs. The Expert Models of Regulation
Sparrow’s academic focus is the front-line and managerial work carried out by regulatory and enforcement agencies, including social regulators such as workplace safety and environmental regulators, intelligence agencies and police – a rare subject of academic study indeed. His previous major works include The Regulatory Craft: Controlling Risks, Solving Problems, and Managing Compliance[2] and The Character of Harms: Operational Challenges in Control[3], which develop his theory of strategic management of regulatory and enforcement agencies.
To provide context for his discussion of policing issues in the U.S., Sparrow describes two approaches that regulatory and enforcement agencies can take when selecting targets, resource allocation and interventions.
The “Legal” model involves targeting illegal activities, regardless of the harm inherent in them. Such a regulator may be critiqued as “obsolete” and “nit-picky”, and its efforts may very well prove ineffective at reducing harms. For example, the U.S. OSHA (Occupational Safety and Health Administration) once prided itself on its increasing number of workplace citations , which the agency saw as a measure of success, all while the number of workplace accidents was on the rise. OSHA was doing its job – as it saw it – of citing non-compliance with the law. But over time, this activity was not having a positive impact on workplace injury. This realization led to radical reform within the agency.
The “Expert” model is more concerned with reducing harmful activities, and therefore represents a risk-based approach, one in which regulatory actions and resources are aligned to tackle harmful behaviour, not just illegal behaviour. The Expert model underlies modern problem-solving regulation and enforcement, including problem-oriented policing. It requires structural versatility, analytical capacity, and the ability to devise, implement and iterate creative interventions to address the harm.
It is not a controversial proposition for an agency to target regulated actors whose behaviour is both illegal and harmful. But when agencies intervene in harmful activities that are not necessarily illegal, they can be accused of mission creep, entrepreneurship and worse.
Lawyers tend to bristle at this approach, which raises the spectre of abuse of power and could – incorrectly – be construed as permission for an “ends justify the means” approach. Lawyers are generally cautious creatures, and those practising in the regulatory field are charged not only with supporting regulatory and enforcement activities in a legal manner, but also with trying to minimize legal risk to the regulator. However, they are not primarily responsible for achieving the effective performance of the public protection mandate: this task falls to regulatory and enforcement executives. Inevitably, there will be operational, philosophical and legal tensions between the two approaches.
Risk Control through Problem Solving
Anyone who has worked in the regulatory or enforcement arena is familiar with the program- and functional-based silos in which this work is generally conducted. This traditional organizational form represents a natural evolution, shaped over years by statutory requirements and staff specialization: departments and teams focused on licensing or registration, inspections, investigations, enforcement, compliance monitoring, etc. As an operational structure, however, it also leads to a focus on outputs, poor coordination of objectives, resources and activities, lack of collaboration, missed hand-offs, and weak information flow.
Sparrow suggests that in order to prevent and suppress harms, and reduce and mitigate harms that do occur, agencies should instead structure around problem solving. This is a powerful proposition, one that still makes regulators skittish even though it has been around for years.
It flips the traditional organizational form – where regulatory problems are subordinated to existing tools – on its head. In this upside-down world, regulators would focus first on identifying problems worthy of solution, and only then determine the tools to be used.
Such regulatory problems are best thought of as sandwiched between the higher level of broad risk categories, and the lower level of individual regulatory or enforcement actions. Higher-level problems are best described in two or three words – think “narcotic abuse” or “gun deaths” – and are ideally dealt with in the government policy arena. On the other end, problem solving at the individual level – while necessary – is not able to address larger harmful societal trends and patterns. The textured space between policy making and the individual actions of front line regulatory and enforcement staff is the sweet spot for regulatory problem-solving initiatives.
Sparrow’s concern with the existing program-centric model of regulatory and enforcement agencies is that while these organizations work very hard to manage their outputs (including investigations, inspections, complaints, enforcement or disciplinary actions), these outputs may become success metrics unto themselves, even if an agency’s work is not actually reducing harm to the public.
Regulatory problem solving needs a different approach to work, one requiring the capacity to detect, explore and strategize around emerging problems, to devise novel solutions in multidisciplinary project groups, to carry out the proposed interventions, to measure their effectiveness, and to tweak interventions in an iterative process. The traditional structure and functioning of agencies often prevents them from even being able to detect emerging problems at all, let alone being able to prevent their occurrence, suppress them, or mitigate harm promptly once problems have occurred.
The Problems with Policing in America
Sparrow begins Handcuffed by noting that the concepts of community-oriented policing (COP) and problem-oriented policing (POP) have existed since the 1980’s, and were conceived precisely to tackle policing problems that were not amenable to standard incident response practices. Somewhere along the road, clearly, something went wrong. While many police forces have implemented some form of both COP and POP, they have done so in an incomplete manner, so as to render the initiatives ineffective.
In some cases, police forces have been assigned perverse operational incentives, such as the Ferguson, Missouri force. An investigation following the shooting death of Michael Brown, and subsequent riots, revealed that the department’s primary task was to raise revenue for the city, rather than to protect citizens or reduce harms.
Even the fabled New York Police Department, founder of CompStat, has done an inadequate job of implementing COP and POP, according to the author. The death of Eric Garner, an asthmatic man who was tackled by police and put into an illegal chokehold during an arrest for selling contraband cigarettes, is illustrative. While his alleged activity was no doubt illegal, Sparrow is critical of the police resources and force used to deal with him.
A recent New York Times investigation (published after Handcuffed) examined the worrisome growth in use of forcible- or dynamic-entry raids to execute warrants to seize drugs or evidence of other (often misdemeanour-level) crimes. These raids inflict death and destruction on the home’s occupants, and frequently come up empty-handed, or with evidence of low-level criminality only; results which could easily have been obtained by using less-intrusive and violent police actions such as stakeouts and “simple knocks at the door”. [4]
The trend represents a shocking confluence of the never-ending war on drugs, police militarization, and eroded constitutional protections against search and seizure. Police justify the raids on the basis of expense, efficiency and officer safety, rationales that strain credulity, especially when measured against the unnecessary trauma, loss of life, property damage, and the amounts paid by the state to settle the resulting civil lawsuits. As an enforcement practice, it represents the polar opposite of both COP and POP. Not only are police casting themselves in the role of occupying army – which will never endear them to the community – they are using the same tool – overwhelming force – regardless of the size and shape of the problem.
According to the author, COP should be the backbone of police work, not only a specific strategy. Many forces have limited the program to the deployment of more foot and bike patrols, but have not gone to the extent of engaging with the community as a planning partner. Other departments have created special units dedicated to community policing, so that it is a segregated strategy rather than the pervasive philosophy it is meant to be.
POP, meanwhile, is not being used effectively by police departments, which continue to be organized and measured around programs and functions rather than problems. The time-honoured tradition of placing “cops on dots” – that is, directing patrols at crime hot spots – remains the residual legacy of POP. Because forces have not fully embraced POP, they are not in a position to identify, parse and address right-sized problems at an early stage. And because they have not built the organizational apparatus and competencies needed to fully support POP, the work is not being done, or at best, is being done at the individual, street level only.
An Unhappy Marriage: Police Departments and Social Scientists
Sparrow is particularly annoyed by the hegemony of the social science discipline of program evaluation, which underlies evidence-based policing (EBP). This discipline hews to a gold standard of evidence, based on randomized controlled studies and years of study to determine whether a given police intervention is effective. It is concerned with showing causality, always a high standard in complex social science fields.
According to Sparrow, the standard is simply too high to be of any practical use in POP, and the three-to-five year period such research requires too slow for the real world of police operations. Given that no two police forces will necessarily have implemented POP in the same manner, using EBP to evaluate whether POP works overall as a strategy is not possible either.
Sparrow notes the work of his Harvard colleague, Mark Moore, who describes a continuum of knowledge from mere intuition to randomized, controlled studies, and lauds the in-between traditions of natural science, in which curiosity, inquiry, experimentation and testing (short of the randomized control study) can support problem solving in a much more immediate way. After all, randomized studies played no role in the development of Newton’s theory of gravity.
EBP methods may be useful, the author contends, in evaluating the effectiveness of more long-standing or permanent programs that change very little over time or across jurisdictions. But everyday POP requires versatility, creativity and innovation, all of which are anathema to EBP. Deference to EBP may have the effect of tamping down experimentation and narrowing the range of possible solutions to policing problems. EBP also encourages a program- and function-centric approach to regulatory and enforcement work, which is antithetical to the problem-solving approach. Finally, the domination of EBP over other types of inquiry means that the types of analytical and management competences needed to carry out POP work are not being developed across police forces.
The author describes EBP as having the wrong level of focus for problem-oriented work. Social science focuses on high-level or macro-level analyses of aggregate data sets. POP instead emphasizes disaggregation of broad crime categories – neither broad, general phenomena nor single incidents – within that middle layer of problems connecting entire classes of risk and individual incidents.
Where EBP’s purpose is to establish causal connection, problem solvers try creative, plausible solutions – just because they might fix the problem. Problem solvers need to be methodologically rigorous when it comes to monitoring decline of the specific problems addressed, but are less concerned with proving causality. They instead use iterative, short-cycle techniques and rapid, early impact assessments followed by ad hoc and multiple adjustments.
Sparrow notes that sophisticated analysis and pattern recognition with “bristling intelligence antennae” can help an agency to detect and suppress emerging problems sooner. And is this not what all citizens (excepting criminals) want? To think that police, using sophisticated intelligence analytics and tactical strategies, work to prevent crime from happening in the first place? That proposition cannot be controversial, although there is a perverse consequence. Crime suppression at this level means that crime is less noticeable in a statistical sense. It just isn’t there. Recognition of police efforts is much more likely to happen when crime is allowed to grow hopelessly out of control, and therefore more responsive to drastic and visible reduction efforts. No one said this is easy work.
A Chance for Learning through Partnership
The final two chapters of Handcuffed are devoted to explorations of police partnerships: both with non-state security actors, and with non-police regulators.
Non-State Security Actors
State-operated police are just one subset of security actors in the U.S., albeit an important one. There has been a proliferation of private and for-profit operators (think campus and mall police), along with not-for-profit community groups such as Neighborhood Watch.
Sparrow contends that community policing is based on the co-production of public safety with others’ contributions, a model in which state police are more accurately considered to be orchestrators, rather than sole deliverers of security. Such co-production is fraught, of course, with issues of professionalism, motivations, values, governance and accountability of the non-public actors. Private corporate interests do not necessarily coincide with the public interest, and even volunteer organizations such as Neighbourhood Watch can veer off-course if not properly governed. The management of the web of relationships between state and non-state security actors is now a core competency for police executives.
While the acceptance of a private security force is commonplace in the U.S., it does not mean that concerns about the risks to civil liberties and privacy posed by private policing are obliterated.
For example, there exists a “revolving door” effect between the public and private sectors, as state-trained security staff retire while still relatively young and move into private security, or are lured there earlier by higher salaries. These individuals are presumably better trained than their private sector counterparts, more likely to use sophisticated surveillance techniques, and better able to hide improper investigative methods from police. They are also likely to maintain their network, meaning they may continue to have access to information that non-state actors would not.
A significant concern with private security actors is the fact that citizens do not have constitutional protections (Miranda rights, exclusion of evidence gained by unauthorized searches, etc.) against their actions, unless they are officially deputized by the state. We see the picture emerging of a highly skilled private force largely trained by the state, but no longer subject to the same legal constraints. And no less worrying is the idea of relatively unskilled, untrained private police, with no public background, engaging in unethical or excessive behaviour against citizens.
Despite these concerns, there remains a high level of enthusiasm for security collaboration in the U.S. In fact, the notion that private security is in equal partnership with public security, rather than merely subordinate or complementary to it, is gaining prominence. Even in Canada, where privatization is viewed with more skepticism than it is in the U.S., the Law Commission of Canada recently noted that policing consists of a public-private network “….that is often overlapping, complementary and mutually supportive”.
Given that private security actors are not going away, it is suggested that governments develop the capacity to “….regulate, audit and facilitate the restructuring of police”.
Sparrow discusses the benefits of this growth in private security, including increased effectiveness through collaboration and access to specialized skills, against risks such as lack of accountability, threats to civil liberties and public safety. Of particular interest is the issue of equity in access to security. Supporters argue that the growth in private policing means that public security can be directed to poorer and more vulnerable communities, as the wealthy can afford to pay for their own security services. Critics argue that growth in private security means that citizens get the level of protection they can afford. The wealthy, able to purchase their own protection, will presumably no longer support public policing. Funding for public policing will therefore suffer, thereby reducing protection for the poor and vulnerable.
After working through several examples of public-private collaboration, Sparrow concludes by restating the inevitability of private policing, and the need for public police to address the risks inherent in the former’s work as policy and operational challenges, rather than “grounds for disengagement”. The author notes that public police need to look ahead, both to anticipate those traditional public functions they may lose, and to new areas of expertise they can conquer, including fraud, white-collar, Internet-based crime and other security threats that will require an expanded public-private collaboration.
Social Regulators
Sparrow concludes Handcuffed with a call to police to end their isolation and reach out to the regulatory community to partner in risk control and harm reduction. He notes that social regulators – such as those dealing with the environment, workplace hazards, corruption, discrimination, food safety, terrorists, unsafe commercial products, and so on – struggle with their own COP- and POP-like challenges. Like police, social regulators need to determine how best to interact with their regulated community, whether and how to enforce, what alternatives to enforcement might help achieve their mandate, patterns and concentrations of noncompliance and harms, problem solving and risk reduction.
All such organizations have a common purpose – to protect society from different harms. Where the other half of government focuses on delivering services, regulators instead deliver obligations, and have the coercive power of the state to accomplish their task. This awesome power must be justified to be legitimate, and much effort has been expended on management initiatives to improve business processes and customer services. But the core of the regulatory mission is elsewhere – in risk control – an area in which there has been much less guidance.
Whatever risk control strategies regulators are developing, police have not been inclined to take notice. The author notes that Harvard went so far as to re-name a key executive program (“Strategic Management of Regulatory and Enforcement Agencies”) to highlight the connection, “but to relatively little avail”. Police prefer to take their academic cues from criminal justice and criminology, leading to replication of efforts and lost opportunities.
Perhaps not surprisingly, police see themselves as distinct, for valid reasons, but this should not preclude collaboration. Police may benefit from studying the wider repertoire of compliance management and behaviour modification techniques deployed by regulators, which may have application to crime control and public safety.
The Division of Labor between the Regulator and the Regulated
Sparrow describes the basic tasks of regulators as risk identification, risk analysis, interventional design, and implementation. There are different ways of dividing these tasks between the regulator and the regulated.
The traditional command and control or prescriptive method of regulation keeps risk identification, analysis and design squarely within the regulator’s role, while requiring the regulated entity to act so as to be in compliance with the specified regulation.
As we move toward the idea of co-regulation or co-production, the principle- or outcome-based approach makes more sense than traditional command and control. Here, regulators specify the desired outcome and delegate the “how” to the regulated community.
The self-regulatory model (the model for professional regulation in Canada) delegates all of these tasks to the regulated community, though government typically retains some role, at least an audit, approval or supervisory function. In some cases (industry self-regulation), industry associations play a key role in risk identification, analysis and interventional design.
The author argues that preferring one model to another is a mistake. Instead, regulatory design needs to accommodate multiple regulatory approaches at once, to address different classes of risk.
Self-regulation, for example, works well when risk control is in harmony with business interests, where risks are easily observable, and where regulated entities would be more open to disclosure; but does not work where business interests and risk control are opposed, or where risks are less visible and disclosure less likely. Airlines’ business interests are closely aligned, for example, with risk control. A major crash is not only an obvious event, it can kill passengers, and the airline itself. For this reason, the air safety record has steadily improved over time. Corruption, on the other hand, is less visible, and will not be voluntarily disclosed by those involved. As the author states, “….no single regulatory structure….is good for all risks”. The question of who should be responsible for which tasks requires separate analysis for each class of risk, even within the same regulatory organization. This labor is at the heart of risk-based regulation.
Police should consider their task from this perspective as well. Traditional professional policing can be thought of as command and control, whereas community policing, with its philosophy of co-production, is more principle-based. It is even possible to see a move toward self-regulation, by “empowering communities to become crime-resistant and resilient in their own right”, and to charge public police with an oversight role in managing relationships with private police, in a version of industry self regulation.
Sparrow then turns to the question of how collaboration between police and social regulators might enhance POP.
Social regulators face a range of problems, in different shapes and sizes: harms connected with specific products or categories of products, industry groups or categories of hazard within an industry, specific market segments, and so on. Environmental regulators, for example, have adapted to manage an astonishing array of differently-sized and shaped problems, everything from industrial waste to endangered species, agricultural runoff, watersheds and wetlands. At some point, all regulators must come to the realization that they face problems that do not align nicely with their existing organizational structures and operational methods.
The author concludes by enumerating other benefits police might obtain by collaborating with social regulators, including the fostering of inter-agency relationships to better address regulatory problems, and the wealth of scientific and analytic expertise from agencies steeped in such knowledge.
Handcuffed serves the reader both hope and frustration, in equal measure. On the one hand, the book provides such a clear road map for U.S. police to tackle their many problems that success feels tantalizingly near. A challenge, yes, but a manageable one. So much work – across police, intelligence and regulatory agencies – has been done to craft community relationship and problem-solving strategies, it is genuinely disheartening to realize how little demonstrable progress has been made by police over the 30-plus years these ideas have existed. How much unnecessary death, trauma and destruction will continue so long as community- and problem-oriented policing are neglected?.
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[1] (For further analysis of the issues with U.S. policing, see John Oliver’s take at https://www.youtube.com/watch?v=KUdHIatS36A and a recent New York Times investigation into forcible-entry police searches at https://www.nytimes.com/interactive/2017/03/18/us/forced-entry-warrant-drug-raid.html?hp&action=click&pgtype=Homepage&clickSource=story-heading&module=photo-spot-region®ion=top-news&WT.nav=top-news.)
[2] Sparrow, Malcolm K. The Regulatory Craft. Washington: The Brookings Institution Press, 2000.
[3] Sparrow, Malcolm K. The Character of Harms. New York: Cambridge University Press, 2008.
[4] Sack, Kevin. “Door-Busting Drug Raids Leave A Trail of Blood.” New York Times, March 18, 2017. See link at note 1, supra.
Regulatory Solutions for the 21st Century 