Sheila Bedi (Northwestern University Pritzker School of Law) has posted The Myths of Effective Law Enforcement and the Demand to Defund the Police (Stanford Journal of Civil Rights and Civil Liberties, Vol. 15, 2022) on SSRN. Here is the abstract:
The Federal Constitution has failed to curb racialized police violence. Overpolicing and mass imprisonment have not created safe, healthy, peaceful communities—to the contrary, these phenomena leave individuals traumatized and communities destabilized. For these reasons, organizers and scholars have long proposed that the police must be abolished. Most recently, the 2020 uprisings that demanded justice for George Floyd, who was murdered by a Minneapolis police officer, and Breonna Taylor, who was killed by the police in Louisville,popularized the demand to defund the police. Critics dismiss the demand as nothing but a snappy hashtag, and describe it as a recipe for anarchy and lawlessness. But defund critics ignore the demand’s animating principles: investments in policing and the tools of the carceral state do not reduce violence; but investments in people and communities do.
Fourth Amendment jurisprudence made the defund demand inevitable, because the courts have refused to engage with the realities of policing and have instead perpetuated myths about any positive correlations between policing and public safety. Put another way, the courts have failed to meaningfully curb police power to harm and kill and have mistakenly assumed that police create safe communities. Fourth Amendment jurisprudence is animated by three policing-related myths: 1) the public good created by policing outweighs any harm; 2) policing can be “color blind”; and 3) police are better equipped to accurately evaluate threats than members of the public.
Accepting these myths as true, courts frequently conclude that the Constitution allows morally unjustifiable police violence and humiliating state intrusion. Current Fourth Amendment jurisprudence is simply not grounded in the realities of policing because it entirely fails to consider the significant risk of harm police officers pose to community members and the minimal public safety benefits derived from the police. This article argues that courts must truly reckon with the realities of policing—instead of basing analysis on false assumptions—and then impose a “least intrusive, least harmful requirement” under the Fourth Amendment. A broad application of the least intrusive, least harmful requirement will reduce police power and presence—and thus require police defunding. Resources should then be diverted from police departments that harm Black and brown communities with impunity into those same communities to create safety and wellness