The persistent myth of the ‘Ferguson effect’
Leading U.S. law enforcement officials have been arguing since last summer that the nation is confronting a new wave of violent crime, caused by what they call the “Ferguson effect.” Police officers, they insist, are reluctant to do their jobs for fear that civilians will record their actions and use the videos to challenge the police version of events.
The Republican presidential candidates expressed serious concerns about this during last Thursday night’s debate. New Jersey Governor Chris Christie blamed President Barack Obama, who “believes that law enforcement are the bad guys.” The police, Donald Trump contended, “are the most mistreated people in our country.”
FBI Director James Comey advanced this theory through a widely noted speech in October. A full-fledged controversy has now developed over whether greater scrutiny of law enforcement since the 2014 shooting of an unarmed black teenager in Ferguson, Missouri, has made police officers wary of enforcing the law.
There is, however, a major factual problem with this argument: There is no reliable data to prove that crime is rising.
Murders did indeed increase in 2015 in several mid-size American cities, and one big one, Chicago. Overall, the murder rate for the country’s largest cities was up 11 percent in 2015, according to preliminary data from the Brennan Center for Justice at New York University Law School. But this is well within the range of year-to-year fluctuations during the decades-long era of declining U.S. crime rates. In addition, the data does not show that other violent crime, such as assault, has increased.
So, if there isn’t a new crime wave, what do we make of the Ferguson effect that supposedly caused it? First, not everyone agrees that police officers’ increasing caution is behind the crime-rate fluctuations. In St. Louis, for example, where murder has been on the rise, the increase began before 18-year-old Michael Brown was killed in Ferguson. Milwaukee Police Chief Edward Flynn views his city’s rise in violent crime as more likely attributable to cuts in health-services funding and a new state law allowing people to carry concealed weapons.
The reasons for the rise, or fall, of crime rates have always been notoriously difficult to pin down. Yet, as was clear during the GOP presidential candidate debate, the idea of a Ferguson effect persists in the popular imagination. This could be because it serves another purpose: to resist change. In fact, similar arguments have been made repeatedly in U.S. history.
Since the controversy over police behavior emerged in the wake of Brown’s death, and increased with a series of other police killings of unarmed citizens across the country, there has been a predictable backlash in law-enforcement circles against the criticism.
The idea of the Ferguson effect was popularized last May in a Wall Street Journal op-ed article by the conservative scholar Heather MacDonald of the Manhattan Institute. Her article, which provides the theoretical underpinning of the police backlash, contended that unless the police are free from surveillance they will, in effect, be unable to do their jobs. Efforts by citizens to ensure that police officers abide by the law and the Constitution, the argument contends, put all Americans in danger and allow the real criminals to run rampant.
The conclusion, though never stated explicitly, is that in order to fight crime effectively and keep everyone safe, the police must sometimes ignore the law and the Constitution. This also serves to shift the focus from any police use of excessive force to the public danger of law enforcement’s use of insufficient force.
The argument goes right to the heart of the problem of policing in a democracy: Is it possible to conduct effective police work and respect the boundaries placed on police behavior in a constitutional democracy?
There is no question that the limits the law and the Constitution place on police authority and discretion make it harder for them to do their crime-fighting job. That is why, throughout U.S. history, there has been tension between police forces (both public and private) and the civilians who wield control over them. Most law-enforcement agencies understand that they must establish public legitimacy to be successful. Which might be one reason why those who are using excessive force prefer to work away from the glare of public attention — and so be able to continue maintaining control of the narrative about police conduct.
That is one reason why the real Ferguson effect — the use of cellphone videos and social media to increase the glare of public attention — upsets many in law- enforcement circles. Yet, it also can open a frank and potentially positive discussion of the fundamental problem of policing in a democracy: How to do effective police work and keep within the bounds of the law and the Constitution.
U.S. cities established the first modern police forces with great reluctance under terribly trying circumstances in the mid-19th century. Criminal justice was traditionally the responsibility of private citizens. Many Americans feared a civil police in much the same way they feared standing armies — as potential sources of state tyranny.
Philadelphia’s police force, for example, was organized only after a long string of deadly riots during the late 1840s. To help prevent more riots, officers were instructed to arrest virtually anyone they considered suspicious. New York’s new police received similar instructions — and arrested one of every 109 New Yorkers in 1851.
Despite the desperate need for order, many civilians nonetheless balked. Philadelphia’s leading daily newspaper raised the specter of police tyranny right after the new police department was established– insisting that arrests for “suspicion” established “a doctrine of the most pernicious tendency.”
Widespread surveillance and arrest were not the only actions expected of the new police. Their supporters understood that violence was an essential component of police authority. Philadelphia’s first citywide police chief sought to recruit officers prepared to “slug it out” with the disorderly. Together, these two mandates — keeping a constant eye on the “suspicious” and employing violence to subdue them — became key components of the developing relationship between police and the citizenry.
Patrolling by basically walking beats alone during the late 19th century, a policeman’s authority rested in large part upon his ability to physically control the street corners. By the early 20th century, the muckraking journalist Lincoln Steffens described how the legendary New York cop Alexander “Clubber” Williams demonstrated what an art form the judicious use of the billy club had become.
Somewhat like now, this harsh police behavior inspired outrage. In New York, reformers of all stripes took aim at the New York Police Department during the late 19th century. Police brutality was a prime concern of perhaps the most sensational investigation of city government in New York’s history, the Lexow Committee hearings of 1895. A few years later, many leading New York clergymen protested an attack on the city’s black community that they believed the police had joined rather than suppressed.
One prominent judge, William Gaynor, spent two decades castigating the police practice of making widespread arrests for “suspicion,” “disorderly conduct” or other vague charges. They were illegal, Gaynor insisted, directed at people the police wish to “annoy and oppress,” and all the worse for being directed at “the weak, uninfluential and friendless, whose protection should be the chief aim of government.” As a result, Gaynor was elected mayor of New York in 1909.
Also like now, the police responded defensively to the scrutiny and criticism. When one well-known officer was roundly criticized for beating protesters during a demonstration, his response to the charge that he had violated their right to free speech was to declare, “to hell with the Constitution.”
Then, as now, the police worked closely with the district attorney. In 1903, a senior Manhattan assistant district attorney, whose office had been encouraging aggressive police behavior, insisted that the law officers were not “overzealous” in making arrests and rarely violated due process. The real problem, he argued, was police reluctance to “do their duty” because of political interference.
Despite police resistance to the criticism, if often yielded significant changes. Some, like the big drop in arrests for minor offenses after Gaynor became New York mayor, were temporary. Others, like the first halting efforts at what would become “community policing” or forging constructive neighborhood ties through groups like the Police Athletic League, were more long lasting. As was the recognition that some problems were better suited to interventions by practitioners of the new profession of social work.
After the Progressive reform era waned in the 1920s, police authority again expanded throughout the nation — eventually provoking another round of questions about its constitutionality, and another opportunity for change. The results were the historic U.S. Supreme Court decisions limiting police power during the 1950s and 1960s.
But police authority again expanded – first, in response to the civic unrest of the late 1960s and 1970s, then driven by the war on drugs and finally as a result of the fear of terrorism following 9/11.
Now, thanks to the real Ferguson effect — the scrutiny of the police undertaken by ordinary citizens — another opportunity for change has emerged. Once more, many among the police and their supporters are resisting it.
But rather than their dubious claims about a crime wave, this moment is crucial because Americans can again make progress in the recurring battle between police power and the Constitution. Americans can forge new strategies for effective, community-engaging, law-abiding approaches to policing and crime reduction.