Americans once understood that drawing boundaries around those authorized to use force was a bulwark against creeping tyranny. Matt Welch reviews “Unwarranted: Policing Without Permission” by Barry Friedman.
Pity any author who has published a policy book this winter. You labor for years over the evidence, trace the progression of relevant public opinion and then, just before publication date, America coughs up the mother of all black-swan presidential elections.
It's hard to read Barry Friedman's criminal-justice system indictment "Unwarranted" without being distracted by the chasm between the context in which it was written and the one in which it now appears. On one side lies the fertile debates about police abuse and national-security surveillance ushered in by the events in Ferguson, Mo., and the revelations of Edward Snowden. On the other stands our new "law and order" president and his attorney general, who has opposed most attempts at rolling back the excesses of our long national War on Crime.
Fortunately, Mr. Friedman has framed his argument in a way that may even carry more utility in our Trumpified age. "The real problem with policing is not the police," he writes in a preface dated June 2016. "It is us." Until the citizenry takes active responsibility for the rules that govern law enforcement's unique powers of surveillance and force, we will continue to see widespread injustice and the erosion of our fundamental rights.
Mr. Friedman, a New York University professor who specializes in constitutional law and policing, is one of the country's most interesting cartographers of the nexus between criminal justice and the citizenry. His previous book, "The Will of the People" (2009), made the provocative and persuasive argument that the Supreme Court rarely gets too far ahead of -- or behind -- public opinion.
"Unwarranted" posits that the central problem with the status quo is "policing without permission." It's the cellphone stingray towers that gobble up user data on behalf of local police departments. It's the tens of thousands of violent SWAT raids carried out each year to execute drug warrants. It's the unconscionable civil-asset forfeiture rules that allow cops to take money and property from people who haven't even been accused of a crime. All of this is aided by Supreme Court jurisprudence that has turned the Fourth Amendment's strictures on search and seizure into swiss cheese.
The fundamental issue, according to the author, is that Americans lack the tools to comprehend the scope of what's gone wrong. "We don't even think about all these various practices, troubling as they are, as a single phenomenon," Mr. Friedman writes. "It is a complete failure of democratic governance." Until very recently, there was no good national data on use-of-force incidents. A whole architecture of legal and de facto immunity for law enforcement -- for cops who bend the truth on the witness stand, prosecutors who engage in serial misconduct, and departments that deny or dissemble about their methods -- that began to be constructed in the 1960s in response to spiking crime rates has created an entrenched culture of obfuscation and abrogated oversight.
The simple but important act of making policing more transparent has already spurred positive changes. Five years ago people were still getting arrested for filming police in states like Illinois and Maryland. Now, after several court cases, the practice is robustly defended on First Amendment grounds and police departments nationwide are increasingly adopting dashcams and other recording technologies. Once Seattle residents were made aware (through an ACLU lawsuit) of their police department's use of stingray surveillance, the city council passed a law requiring warrants for its use.
Legislatures get the back of Mr. Friedman's hand for shying away from most anything that smacks of being "soft" on crime or terrorism. Their reliance on the judiciary to be the backstop for regulating law enforcement is a special kind of folly, he writes. "The courts," he says, "are not up to the task."
And yet the courts are where Mr. Friedman wants the reformation to begin. In part this means restoring the Fourth Amendment to its once-robust place in defending against unlawful search and seizure, but it also means kicking hot-button issues, like the expansion of national DNA databases, back down to legislatures and polities. Judges, he writes, should "refuse to allow emerging technologies to be used by the police for surveillance until rules are in place to regulate them."
This is where Mr. Friedman runs up against a paradox that he can't quite power through. Isn't the intersection between democracy and policing precisely where some of the worst policies have come from? "Three Strikes" sentencing laws were gifted to us in the 1990s via ballot initiative (in California, no less). It would take a phone book to list all the politicians who have won office after campaigning to be tough on crime, while elected reformers could fit comfortably on the first page of a legal pad. And if the Supreme Court really does follow public opinion, aren't its degradations of probable cause and warrant requirements, which Mr. Friedmanexpertly dissects, simply reflections of the popular will?
He confronts these limitations in a concluding chapter that contains more than a hint of exasperation. "The failings of democracy," Mr. Friedman concedes, "are so substantial that some might be skeptical of democratic policing altogether. In the end, though, what better option do we have, really?"
But you need not agree with Mr. Friedman's solution or his overall civil-libertarian bent to find "Unwarranted" an important book about the 21st-century rules of engagement for counter-terrorism, police work, surveillance and crime prevention. (One of the book's many contributions is to draw important distinctions between and among these terms.)
And though "Unwarranted" contains many appreciative nods toward the police, Mr. Friedman's detailed tour through the largely self-regulated terrain of law enforcement will lead the reader to some grim conclusions. Americans once understood that drawing boundaries around those authorized to use force was a bulwark against creeping tyranny. Now they have elected someone who seeks to remove some of the few remaining restraints. Is more democracy really the answer?
Perhaps. But there's no question that both the long-term ideal of self-governance and the shorter-term goal of criminal-justice reform rely on having much more transparency than what we've gotten accustomed to. "Unwarranted" shakes us from what we've allowed ourselves to accept.