Unpoliced
Barry Friedman’s book Unwarranted: Policing Without Permission (“Unwarranted”) is a timely and eloquent critique of America’s deeply undemocratic system of law enforcement. The book covers a lot of territory, from police militarization to ubiquitous surveillance technology, and describes in vivid detail the terrifying consequences of unrestrained executive power. Friedman argues compellingly that transparent, beforethe- fact, universal rules and procedures of law enforcement procedures will make policing both more just and more effective for everyone. The absence of such rules and procedures, Friedman warns, creates opportunities for bias and error. “It is precisely in times of emergency that people act rashly, make mistakes, injure people, or even get themselves killed.”1 If we want to protect our liberties, we must put “rules in place that guide (and, yes, limit) government, so that it does not react badly, or overreact, when things are going wrong.”2 Having clear, fair, and democratic policies in place is all the more important as policing continues to expand far beyond criminal investigation and prosecution and sweeps up an increasingly large portion of society. As Friedman writes, “Policing today is regulatory: it is about shaping behavior on the front end, not capturing crooks after the fact—and we have all become its targets.”3
Though we are all targeted by regulatory policing, Friedman is well aware that the consequences of this policing are not evenly distributed across society. Unwarranted highlights the role that race and class play in the interactions between law enforcement and the public, including how young minority men are subjected to disproportionate policing practices from stopand- frisk to the deadly use of force.
With these concerns in mind, Friedman helpfully provides a succinct, one-paragraph vision of what constitutional policing would look like:
Warrants are required when time allows. When searches are suspicion-based, there should be probable cause, except for the limited use of reasonable suspicion in stop-and-frisk, subject to the proviso that still officers must say what crime they suspect is afoot. Suspicionless searches must affect everyone or be truly random. To the extent a group, but not everyone, is subjected to searches, the government must justify why members of that group should be searched, by providing evidence that the problem is prevalent in that group compared to everyone else, and that enough people in the group are implicated to justify burdening everyone in the group.4
This vision emphasizes that searches should ideally be conducted on the basis of individualized suspicion, and ideally only after a neutral and detached party—a magistrate—has found that probable cause exists for the search. If there is no time for a warrant, searches should still be based on individualized suspicion and ideally on probable cause, though briefer and less intrusive searches can be based on a lower standard of individualized suspicion. Requiring articulable, individualized suspicion as a prerequisite to a search reduces the likelihood of arbitrary and discriminatory searches. In the absence of individualized suspicion, the danger of biased searches can be mitigated by conducting suspicionless searches of the population as a whole. As Friedman explains, universal application is useful for two reasons:
First, if the government is forced to search everyone, and bear the costs of doing so, we will know that the government truly believes this form of deterrence is worth the cost.
Second, if enough people are searched, the political process itself will serve as a safeguard of our liberty. The more people who are subjected to police searching of this sort, and put up with it, the more we can be comfortable knowing that people at least believe the effort is appropriate and worthwhile.5
The only circumstance in which a group should ever be singled out for a search, Friedman argues, is when the government can provide a compelling cost-benefit analysis for doing so. Specifically, the government must offer evidence—not mere speculation—that the group is more likely to be involved in unlawful activity than other groups, and that the involvement among members of this group is so prevalent that innocent members can justifiably be burdened.
The hard part, of course, is how to energize the general public about constitutional policing, especially those who are not the obvious or primary targets of the current regime. Friedman emphasizes, first, that everyone is incidentally swept up in the ever-expanding policing regime. Second, the biases and prejudices at its core lead to a misallocation of law enforcement resources that makes all of us less safe. This can be seen clearly with racial bias in stop-and-frisk. Numerous studies have shown that minorities are less likely than white people to be carrying drugs or other contraband. 6 In stopping and searching minorities at disproportionately high rates, law enforcement not only treats these groups unfairly but also wastes limited and valuable resources. As Friedman writes, “It’s not just people’s liberty at stake; it’s resources that could be devoted to something more productive.”7
Getting people to care about a system that seems to target “them” rather than “us” is of course a challenge. Friedman suggests that “the best way to tackle racism in policing may well be to understand that the problems of policing can and do affect everyone.”8 Here Friedman invokes Derrick Bell’s concept of “interest convergence,” writing that “many more people get engaged to address a problem if they see how it has an impact on them directly.”9
A pragmatic approach to policing that appeals to individuals’ selfinterest has much to recommend it. But there are also reasons to be skeptical about the success of such an approach. Bell himself was at pains to point out the limitations of interest convergence as a political strategy. 10 Bell introduced the theory in the context of the civil rights movement of the 1950s and 1960s. Whites could be convinced to support civil rights goals, Bell wrote, if those goals also served white interests. For example, a white business owner might see the economic value in opening his doors to Black as well as white customers. So long as white and Black interests “converged,” whites would be open to racial equality measures. However, according to Bell, white support of civil rights would dissipate at the point where white interests and Black interests diverged. Support for racial equality would be limited to measures that would “secure, advance, or at least not harm societal interests deemed important by middle and upper class whites.”11
The question, then, is how much the interests of minorities and white people converge, rather than diverge, when it comes to policing. Friedman seems optimistic that they largely converge. The basic premise of Unwarranted is that the current policing crisis our society faces is fundamentally about undemocratic over-policing. While the primary targets of this over-policing—minority men and, to a lesser extent, minority women—are attuned to this crisis, those who tend to escape its most obvious effects—namely, white men—often are not. In demonstrating how the consequences of undemocratic over-policing affect us all, Unwarranted provides the kind of interest convergence that should pave the way for resistance and reform.
But the picture Friedman paints of America’s policing crisis, while accurate, is incomplete. Our society is in the grip not only of undemocratic over-policing, but undemocratic under-policing. It is not just that so many people are being surveilled, suspected, interrogated, and searched when they have done nothing wrong, but that so many are never stopped, frisked, investigated, or questioned when they have been credibly accused of or even proven to have committed wrongdoing. To put it bluntly, our society tends not only to treat minority men and women as though they are perpetually guilty, but to treat white men as though they are perpetually innocent. Whereas minority men and women so often are denied the presumption of innocence against potential deprivations of life, liberty, or property, white men are often granted a super-presumption of innocence that serves as both a shield against deprivations and a sword to obtain special privileges. The divide between the always-policed and the unpoliced in America is not one that interest convergence is likely to be able to close.
“My whole life, I’ve heard you’re innocent until proven guilty . . . But now you’re guilty until proven innocent. That is a very, very difficult standard,” said President Donald Trump to reporters on the White House lawn on October 2, 2018.12 To hear the President sound the alarm on due process was jarring for many reasons, not least because Trump is notorious for repudiating the rights of due process of those not in his favor, from Hillary Clinton to citizens exercising their constitutional rights to the Central Park Five.
During a 2016 presidential debate with Hillary Clinton, Trump threatened to place her under criminal investigation if he won the presidency: “If I win, I am going to instruct my attorney general to get a special prosecutor to look into your [missing email] situation . . . becaus there has never been so many lies, so much deception.”13 Throughout his election campaign, Trump encouraged the supporters at his rallies in chants of “lock her up,” referring to Clinton, despite there being scant evidence that she had engaged in any wrongdoing. As recently as August 2018, Trump was continuing to encourage this chant at his rallies, even as the indications of his own involvement in extensive criminal activity were becoming more apparent.
But Trump’s most notorious repudiation of the concept of due process occurred many years before he ran for President. After a female jogger was brutally raped and beaten in Central Park in April 1989, five teenaged boys of color were arrested and charged for the crime. Before their trial even began, Donald Trump paid $85,000 to take out full-page ads in every major New York newspaper that called for the boys to be executed.
At what point did we cross the line from the fine and noble pursuit of genuine civil liberties to the reckless and dangerously permissive atmosphere which allows criminals of every age to beat and rape a helpless woman and then laugh at her family’s anguish? And why do they laugh? They laugh because they know that soon, very soon, they will be returned to the streets to rape and maim and kill once again—and yet face no great personal risk to themselves. . . . BRING BACK THE DEATH PENALTY. BRING BACK OUR POLICE!14
In an interview with Larry King about the ad, Trump said, “The problem with our society is the victim has absolutely no rights and the criminal has unbelievable rights—unbelievable rights.”15
Even after all five men were exonerated in 2002 following a confession by a serial rapist confirmed to be the jogger’s actual attacker, Trump continued his attacks. In a 2014 editorial in the New York Daily News, Trump criticized the settlement the men had received from the city, writing that “[s]ettling doesn’t mean innocence” and that “[t]hese young men do not exactly have the pasts of angels.”16
The President of the United States, in other words, has made his active hostility to the concept of due process clear, at least when it comes to women and people of color that he has personally decided are guilty. So it was surprising to hear Trump express such solicitude for the concept of due process in October 2018. What was even more startling was that he invoked the concept in discussing a person who was facing no loss of life, liberty, or property—that is, a context in which a legal concept such as due process and the presumption of innocence is not traditionally thought to apply. Brett Kavanaugh was in no danger of going to jail or being executed over Dr. Christine Blasey Ford’s allegation that he had attempted to rape her when she was fifteen. The most serious possible outcome for Kavanaugh was that he might not get confirmed to the Supreme Court. But in a rally shortly before the Senate vote, Trump expressed indignation at the very thought of this possible outcome—even if the allegations were true. “People are saying, ‘well maybe it’s true.’ And because of the fact that maybe it’s true, he should not become a United States Supreme Court Justice . . . How horrible is this? How horrible is this?”17
As Briahna Gray asked in The Intercept, “How horrible is it for one extremely powerful man to be barred from ascending to an even higher, more influential position—at least while a credible claim of assault is investigated? Is it more horrible than condemning five minors to death without due process, 11 days after their arrest?” In 2014, Trump had described five men who had been wrongly imprisoned for rape as “no angels”; in 2018, he was calling a man accused of sexual misconduct by Dr. Ford and two other women, “No. 1 in his class at Yale, perfect human being.”18
Clearly, what the former President of the United States and the Republican Party more generally demand for men like Brett Kavanaugh is not mere due process to protect against arbitrary loss of liberty, but a superpresumption of innocence that creates an entitlement to further privileges. A poll taken in the wake of Dr. Ford’s allegations revealed that the majority of Republicans—55%—felt that even if her claims were proven to be true, it should not disqualify Kavanaugh from being confirmed to the Supreme Court. 19 As Gray writes, “The standard by which we should judge Kavanaugh, they seem to say, is beyond guilt or innocence. It’s something more. It’s beyond credibility. He’s literally beyond a reasonable doubt.”20
The implications of this were spelled out by Sally Kohn a few days before Dr. Ford gave her testimony, when Republicans were already actively distorting the concept of due process to rush Kavanaugh’s confirmation. As Kohn wrote, “Both before and after these allegations surfaced, it was on Kavanaugh to demonstrate to Americans, via our elected representatives, that he’s worthy of lifetime tenure on the highest court in the land. Not the other way around.”21 When those who insist otherwise speak of Kavanaugh “as not only qualified for a seat on the high court but also as though he’s entitled to it, the discussion, unintentionally or not, replicates our debates about sexual assault in general.”22 This presumption not only of innocence but of merit sent the clear message that “what men want and what they’re entitled to are the same thing. That is how much of our society operates: Men can keep bulldozing through life, misogyny fueling inevitability while evading accountability.”23
In Unwarranted, Friedman writes that we allow unconstitutional police practices because we worry more about becoming crime victims than we do about being victimized by police. But that is only partly true. “We” may tolerate and even encourage harsh policing practices that lead to the surveillance and summary execution of minority men because we fear their supposed criminality, but “we” also are eager to ignore the plausible allegations or even proof of criminality of white men.
What Brett Kavanaugh is alleged to have done is a criminal act. If Dr. Ford is telling the truth, Kavanaugh is an attempted rapist who has escaped detection and punishment for decades. An unpunished criminal is a risk to the community, the female clerks he boasts of hiring, the girls’ athletic teams he coaches, his colleagues, and the general public. Not only will Kavanaugh face no consequences for his conduct, but he is now in a position to make decisions affecting the entire country about policing, the right to bodily autonomy, which crime victims are credible, and which accused criminals deserve the benefit of the doubt.
The country already has plenty of judges and even prosecutors who are remarkably unconcerned about white men’s criminality. In September 2018, a white man walked free after admitting to abducting a Native woman, telling her he would kill her, strangling her until she was unconscious, and masturbating on her. 24 According to the terms of his agreement, Justin Schneider was sentenced to two years with one suspended and received credit for time served living with his wife and children while wearing an ankle monitor. The prosecutor who agreed to the deal referred to it as a “pass” for Schneider, expressing his hope that Schneider would not reoffend: “I hope it doesn’t happen . . . That’s the reason why I made the deal that I’ve made, because I have reasonable expectations that it will not happen. But I would like the gentleman to be on notice that that is his one pass—it’s not really a pass—but given the conduct, one might consider that it is.”25 The prosecutor referred to the fact that Schneider had lost his job as an airport controller as a result of the case as a “life sentence.”
When Schneider was given an opportunity to speak at the sentencing, he made no mention of the victim, instead telling the court, “I would just like to emphasize how grateful I am for this process . . . It has given me a year to really work on myself and become a better person, and a better husband, and a better father, and I’m very eager to continue that journey.”26 White men like Brett Kavanaugh and Trump himself can face multiple credible allegations of sexual misconduct and be rewarded with the most powerful positions in the nation. Even white men who admit to committing violent sexual assault, like Schneider, are often treated with kid gloves by the criminal justice system. White men, especially with regard to crimes against women, are essentially unpoliced.
America’s policing dystopia is as much about selective under-policing as selective over-policing, and this fact suggests that Friedman’s optimism about interest convergence in policing may be misplaced. While many Americans should indeed worry, as Friedman suggests, that they be caught in the net of permissionless policing, white men in particular have littl incentive to resist the status quo.27 Indeed, it is hard to escape the conclusion that white men, especially powerful white men, are deeply invested in the hyper-policing of Black and brown bodies. So long as minority men are presented as the threat, so long as even the barest suggestion of suspicious activity can be enough to train the elaborate weapons of surveillance in their direction, the focus can be kept off of the white men committing crimes in broad daylight.
*✕ Professor of Law, University of Miami School of Law.
1✕ Barry Friedman, Unwarranted: Policing Without Permission 25 (2017).
2✕ Id.
3✕ Id. at 18.
4✕ Id. at 206.
5✕ Id. at 182.
6✕ See id. at 196.
7✕ Friedman, supra note 1, at 157.
8✕ Friedman, supra note 1, at 13.
9✕ Friedman, supra note 1, at 13.
10✕ See Mary Anne Franks, Democratic Surveillance, 30 Harv. J.L. & Tech. 425, 427 (2017).
11✕ Id.
12✕ Donald Trump, President of the United States, Remarks by President Trump Before Marine One Departure (Oct. 2, 2018).
13✕ Gregory Krieg, Trump Threatens to Jail Clinton If He Wins Election, CNN (Oct. 10, 2016, 11:30 AM ET), https://perma.cc/8NE6-4957.
14✕ Oliver Laughland, Donald Trump and the Central Park Five: The Racially Charged Rise of a Demagogue, The Guardian (Feb. 17, 2016, 1:15 PM EST), https://perma.cc/6SQQ-VV94.
15✕ Ayesha Rascoe, Trump Pushes Due Process for Some, ‘Lock’ Them Up for Others, Npr (Oct. 5, 2018, 5:01 AM ET), https://perma.cc/QRR2-PTJS.
16✕ Donald Trump, Donald Trump: Central Park Five Settlement Is a ‘Disgrace’, N.Y. Daily News (June 21, 2014, 2:00 AM), https://perma.cc/KY53-W3DK.
17✕ Briahna Gray, Presumption of Innocence Is for Privileged Men like Brett Kavanaugh, Not Laquan McDonald or the Central Park Five, The Intercept (Oct. 4, 2018, 9:00 AM), https://perma.cc/T2U8- 9TNU.
18✕ Id.
19✕ Tim Marcin, Sexual Assault Should Not Disqualify Kavanaugh If Proven, Majority of Republicans Believe: Poll, Newsweek (Sept. 27, 2018, 10:05 AM EDT), https://perma.cc/Q9GLS3MH.
20✕ Gray, supra note 17.
21✕ Sally Kohn, Kavanaugh Isn’t Entitled to a Supreme Court Seat, Just as Men Aren’t Entitled to Sex, Wash. Post (Sept. 24, 2018, 4:05 PM EDT), https://perma.cc/K7NG-5BDG.
22✕ Id.
23✕ Id.
24✕ Guardians of Democracy Staff, No Jail Time for Man Who Pleaded Guilty to Strangling, Sexually Assaulting an Unconscious Woman, Guardians Of Democracy (Sept. 22, 2018), https://perma.cc/CEU9-XDTK.
25✕ Id.
26✕ Id.
27✕ Friedman, supra note 1.