Breach of (Social) Contract

Thanks to ubiquitous smart-phone cameras, social media and Black Lives Matter, the general public can no longer ignore accusations that officers in a number of police departments routinely use excessive force and engage in unconstitutional behaviors.  Investigations by the U.S. Justice Department—most recently in Baltimore— confirm persistent, systemic practices that violate the rights of the citizens we expect police to serve and protect.

For a year following the death of Freddy Gray, the Justice Department monitored the Baltimore police department. The results of that investigation were unambiguous: unconstitutional practices included disproportionate rates of stops, searches and arrests of African-Americans, and excessive use of force against juveniles and people with mental health disabilities. The report attributed these practices to “systemic deficiencies” in training, policies, and accountability structures that “fail to equip officers with the tools they need to police effectively.”

A DOJ investigation of police in Ferguson, Missouri, reached a similar conclusion, finding a “pattern and practice” of discrimination against African-Americans that targeted them disproportionately for traffic stops, use of force, and jail sentences.

Baltimore and Ferguson are hardly unique.

As a practical matter, widespread distrust makes policing infinitely more difficult. Good policing depends upon access to reliable information and co-operation with community leaders; avenues of communication dry up when police are seen as enemies rather than protectors.

Far more troubling than the practical consequences of unprofessional behavior, however, is the damage done to America’s social fabric by what can only be seen as a breach of our most fundamental social contract.

The Enlightenment philosophers who influenced America’s founders proposed a trade of sorts; we call that trade the “social contract.” Citizens would give government the exclusive right to exercise coercive force; in return, government would use that force to protect individual rights—to provide for a society of “ordered liberty,” within which the strong could not prey with impunity on the weak.

We Americans argue constantly about the proper role of government, but there is no serious debate about the state’s obligation to provide for the public safety, or about the right of all citizens to expect equal justice before the law.

When government fails to keep its part of that essential bargain, when it breaches the social contract, it damages the bonds of citizenship and undermines the rule of law.

An old lawyer once told me that there is only one legal question: what should we do? How can our dysfunctional police departments go about changing entrenched, perverse cultures? A few suggestions, drawn from the research literature:

  • Training is key—and currently very uneven. A number of police departments across the country have instituted effective training programs that help individual officers understand implicit bias, calibrate their responses to the magnitude of the threats encountered, and learn techniques that calm, rather than exacerbate, confrontations. Those programs need to be replicated everywhere, but especially in troubled departments.
  • Policies governing police activities need to be clear, effectively communicated to the rank and file, and fairly and strictly enforced. Those policies should also be vetted by lawyers familiar with the Constitution and especially the jurisprudence of the First and Fourth Amendments.
  • Collection of accurate, relevant data is critical. Data is the means by which we measure progress, the standard against which we determine the appropriateness of behavior. It allows self-evaluation, and its public availability also allows other stakeholders to hold police accountable. That data should allow the department to identify problematic officers and intervene before they cross a serious line.
  • Every police department should have a transparent complaint process accessible to citizens, and complaints against police officers should not be evaluated solely by their peers. (In Baltimore, this was evidently a source of considerable—and understandable—distrust.) Complaints should be reviewed by disinterested parties, and policies prohibiting retaliation for filing a complaint should be strictly enforced.

In the long term, departments should focus more attention on the way they recruit and select new police officers. The recruiting process should include psychological examinations to weed out men and women who are likely to abuse authority, or who are otherwise unsuited to the stresses of the profession. And it should go without saying—so I’ll say it—departments should aim for recruits who are representative of the populations they will serve. That sounds easier than it is, but the results are worth the effort.

If Americans still believe in e pluribus unum—if we still want to unite, rather than divide, our many communities—fixing our policing problem is an essential first step.


  1. There is no single solution for this complex problem: profiling, excessive force, hiring police based solely on availability (in small towns), lack of funding for police and training, awareness of the problems and a commitment to finding solutions by city and town administrations – elected and appointed. Besides Ferguson and Baltimore there are so many other cities that share the problems. In some ways I think this is all connected to the divisions in our society.

  2. Starting Jan. 2016 Baltimore police have access to aerial surveillance of 32 square miles of the city. Police have said, “The only people who should be concerned are the criminals.” ACLU says, “…we’re seeing systems that seek to watch everybody all the time.” –Washington Post, 8/26/16, “Donor-funded surveillance system in Baltimore raises privacy concerns.”

  3. I’m not sure that Americans ever believed in e pluribus unum, including our founding fathers. Let’s remember, they believed in slavery.

    Our society has always had a caste system, whether we want to admit it or not. White men have always been at the top. Women and people of color fall below them in a variety of levels that depend on a variety of factors.

    Better training in police departments has been needed for decades. It won’t solve all of the problems, but will hopefully make positive changes. However, based on the typical level of pay they receive we cannot expect to get the best of the best that is available for hire. If we are going to demand better and more from them we need to be willing to compensate for this because those are jobs that most of us are unwilling to take.

  4. OK, Pete, here is my usual “personal narrative” on this subject. Back to my mugging, injury and robbery on my own driveway at 11:00 in the morning on April 21, 2014 (I was elderly woman victim #3). As I lay bleeding, waiting for the ambulance, I asked the officer why anyone would come into this neighborhood to rob someone. He wrote that I had been followed; I wondered at the time how he could know that. When the mugger and getaway driver were arrested the following week (a fluke) I learned the full answer to my question. All involved in this crime and arrest were white; victim #2 was a 90 year old woman (also injured); the culprits were followed, reported to police and identified that day, immediate IMPD undercover officers began following them 24/7 for that one week. They had been watching the couple look for and following elderly women victims in PNC Bank, Kroger and K Mart parking lots, followed me from Kroger but missed the action and use of of two credit cards eight times that day. I live about 8 minutes from Kroger, little traffic on 10th street, none on Pleasant Run Parkway and into my small neighborhood by the only way in or out. The following week they sat in the small MCL parking lot watching the car but didn’t see the man get out, attack and rob another elderly woman, victim #4. Followed the car to a Shell station where they received a call regarding the attack and robbery of the woman in the parking lot they just left. Did these IMPD undercover officers receive any training? Would they have paid closer attention if the culprits had been black? A few people asked me if the man who attacked me was black. This is an on-going societal problem in this country; racism has now been approved for taking action by one presidential nominee. We are currently battling racism in this country from the top to the bottom; do any of us feel safe, secure and protected by our local public safety departments? The murder rate in Indianapolis has not dropped with a new Mayor and new Police Chief; Sheriff’s Department still operates to only to provide jail space, arrest traffic offenders and serve warrants.

    Facebook is an excellent source of information but needs to be carefully researched and monitored. I made a grievous error accepting a “friend” request after Sarah Smith and I had posted similar responses on several political posts. Yesterday she posed the question of supporting “All Lives Matter”; being a humanitarian I responded that I do support the issue (I was the only supporter). She then commented she thought I was “more enlightened than that” and added a picture of a young couple who support their “white privilege”. She also listed her “required reading list” against “All Lives Matter” if I was to remain on her Facebook post. I told her to remove me from her Facebook page, blocked her Facebook messages and “unfriended” her and hope I didn’t leave any openings. There is a little difference between “white supremacy” and “white privilege” supporters as many view these issues and encourage the racism at all levels of society; a dangerous practice when armed police join the equation. The police actions Sheila referred to are proof of the ongoing racial problems; officers involved in almost every one of the deaths and injuries were acquitted – IF any action was taken.

  5. Police have to get out of their cars and become members of the communities they are policing. They do also need better training and better salaries (as do nearly all who work in government). They don’t need armored vehicles, grenade launchers, or other weapons of war. It is imperative that they don’t think they are at war with the people they protect.

    The most important thing they need are consequences for bad actions.

  6. A recent article in The New Yorker stated that there are about one million surveillance cameras in London. They are very useful in identifying criminals, so the public does not seem to mind being “on camera” all the time. I doubt that would work here – too many conspiricy theorists. But with such a system, there would be no need for the police to wear body cams, (which they can turn off when it is convenient).

  7. Pat; have you noticed that the films from security cameras released to the public hoping to identify suspects, are so blurry and grainy it is impossible to to recognize anyone? Security cameras are expensive; why not provide decent, identifiable films? My son’s security cameras in his Florida home, provided by Bright House, have very clear pictures on the interior monitors, haven’t seen any films to know quality.

  8. JoAnn, I’m going to try to share a tidbit of perspective hopefully without annoying you. I became curious as to why some people get annoyed with the terms “All lives matter”, Black lives matter” and “:Blue lives matter” . (I’m in no way trying to condone or actually defend that woman’s way of reacting.)

    People who have taken the time to explain their negative reaction to “All lives matter” mainly state they are at least originally offended by the term used as a response to the term “Black lives matter” that they perceive it as refuting the BLM term. This type of “unwelcomed” response has especially occurred in Twitter in a real time fashion.

    Some people simply think the BLM term has an invisible “only” in front of it. Others feel it is a term to call attention to THEIR belief that too many (other) people think that Black lives don’t matter.

    Of course many people believe the term “All lives matter” simply means what it says and may also believe there is an invisible “only” in front of the BLM term.

    I have personally had a family member tell me I was incentive when I used all three terms connected together with the word “and” and stating there is no “or”

    I guess I took a very long time to try to say the person who reacted to your saying you support “All lives matter” viewed the term as meaning something quite different than you did which I can easily identify with your reaction. Especially since I have so little pigment in my skin people have to put sunglasses on when I wear shorts.

  9. Bob; no annoyance at all from your post, below I have copied and pasted the part of your profound statement which is totally on target. I know that many people do insist that the word “Only” is what BLM means; I never read it that way. Maybe I am naive but I understood “Black Lives Matter” and “All Lives Matter’ to mean exactly what they say; to quote an old friend…verbatim, quotatum and punctuatum! Life could be so simple; most of the time the sound of hooves does mean horses, not zebras.

    “Some people simply think the BLM term has an invisible “only” in front of it. Others feel it is a term to call attention to THEIR belief that too many (other) people think that Black lives don’t matter.

    Of course many people believe the term “All lives matter” simply means what it says and may also believe there is an invisible “only” in front of the BLM term.”

  10. It should be understandable why the Police can be filled with anxiety on the job. Given the number of firearms on out the street and the willingness of some to use the firearm, the police must be in a high state of alert when they are on the street. The stress level must be enormous.

    Training would help as to how to approach a situation, but the decision may need to be in a split second. That said, there have been too many instances where we have had beatings and shootings , when a more measured approach might have been in order. I think back to the strangulation death of Eric Garner NYC by a police man. I always wondered why there were so many police there.

    Nancy, I agree with you “Out of many One” was a nice marketing slogan, as was All men are created Equal.

  11. One has to wonder what the country would be like without poverty.

    Let’s pretend for a moment that there was a good paying job for everyone. There would be no need for ghettos in which to store poor people. There would be no welfare parents of either gender because everybody could afford to support their families in adequate housing in neighborhoods where pride in accomplishment could be found.

    Look at what we pay to accommodate poverty. The social cost of the private for profit choices of make more money regardless if the impact on others.

    Now nobody would be so naive as to think that transforming to that world would be easy. Nor that the path would be at the expense of the benefits of private business. But the rewards would be huge for everyone.

    To empower such problem solving though society would have to be fully confident in social engineering, our ability to collectively engineer the society that supports the greatest good.

    That’s what oligarchy has blinded us to. Our, versus their, capabilities.

    The fact that the path isn’t clear to anyone should not be a deterrent. The path into space wasn’t clear either. Just the goal was and confidence in our ability to learn and apply, learn and apply, learn and apply.

    We have to first take the country away from the oligarchs who bought it and restore the power of democracy to the community organizers. Social engineers. Problem solvers. Those steeped in learn and apply.

    November is not the finish line but the starting line.

  12. The monetary aspect of solving problems depends on two things. Continuously reducing waste and smart investing. Conservatives are terrible at both. So, as evidenced by Obama vs Bush II, a rule of thumb is that whatever their influence is in business and government it takes as much time to recover from the losses they incur as it took for them to make them.

    We need to run a patient race once we cross the starting line in Nov in recovering from a conservative Congress and Supreme Court.

  13. A couple of thoughts. First, I agree with Peggy. Our police officers need to be more engaged with the people who live in the neighborhoods they patrol. If officers can get to know people in relaxed situations, they will be less likely to see everyone through the “us vs. them” lens. Of course, to do this effectively would require far more officers and a marked increase in tax revenues to pay for them.

    As to the Black Lives Matter vs. All Lives Matter, I saw a commentator recently who put it into good perspective. Black Lives Matter does not say that non-black lives don’t matter. BLM says non-black lives matter but black lives apparently don’t matter right now. The BLM effort is trying to remind people that Black Lives Matter *Too.*

  14. Shelia raises the question none of the above have answered: “How can our dysfunctional police departments go about changing entrenched, perverse cultures?” The sentence is taken to mean the cultures of the police departments.
    But it has another meaning as well, the cultures in our communities. How much responsibility should our police departments have in changing those cultures? Aren’t white supremacists an “entrenched, perverse culture”? Often I believe the same of the liberals and conservatives in our lives. Entrenched and perverse, predictable and immovable. It is not the police culture alone that needs changing.

  15. Dysfunction in the police departments!? There is one hell of a lot of dysfunction in the black communities to be solved also !!!!

  16. That’s the point that I tried to make earlier Irvin. Poverty is dysfunctional. It creates dysfunctional culture. We assume that there’s no solution to it so we’re constantly fiddling with other controls at huge expense.

    Why not go after the root cause?

  17. Morton,

    “How much responsibility should our police departments have in changing those cultures? Aren’t white supremacists an “entrenched, perverse culture”? Often I believe the same of the liberals and conservatives in our lives. Entrenched and perverse, predictable and immovable. It is not the police culture alone that needs changing.”

    You’re 101% right on all accounts especially the LIBERALS. That’s the first culture that needs to change. And it needs to be done QUICKER than a “New York minute” if you don’t mind me saying so.

Comments are closed.