An analysis of police conduct from the perspective of civil-military relations and state political development.

In the critiques and coverage of recent Black Lives Matter protests across the United States, there has been much castigation of a “militarized” and “military-style” response to protests and a general trend of police “militarization” that plagued the police departments across the US. As a long-time student of US military power overseas, the term seemed odd. Why was “militarization” strictly bad?

If the problem is “militarization”, why do US military troops in the Philippines, postwar Germany, Japan, Korea and even Iraq screw up less and respond to screw-ups better than the police back home? The propensities for disaster certainly seem far broader. Language barriers, cultural gaps, lingering postwar hatreds and animosities exist in spades. A degree of hidden racism must undoubtedly exist as well, as a product of prolonged war. And yet, US soldiers think more before shooting children in countries where irregular plain-clothes child soldiers exist than US police do before gunning down unarmed black kids. 

Clearly, the term “militarization” has become disconnected from any reasonable idea of military structures and ideas and has rather been appropriated to refer to intense arming. This possibly reflects a troubling cultural phenomenon across the world – the tendency to view the military and military success purely in the language of weaponry and lethality. More importantly, this gap in language provides cover for bad actors to strawman and obfuscate. Intensely armed police might need to more explicitly prove their ability to use weaponry with discipline on top of their need for such weapons, whilst “militarized” police might be supposed to already have such discipline and training, and thus only need to prove a need for military weapons.

This essay shall attempt to tackle this question, through carefully dissecting the cultures and systems of accountability within military systems that have been absent in police departments even as they acquired the weaponry of militaries. In doing so, it hopes to isolate a clearer idea of what makes militaries work, what makes “militarized” police fail and what American police can learn from the US military.

1. Petty Fiefdoms: Absence of basic Command and Control over departments

Ever since the dawn of the modern national military, a key part of military practice has been the idea of a clear chain of command, as well as structures of command, control and centralized accountability procedures to ensure that order was kept. This was important for many functions. In wartime, strict command was critical towards military success. After all, many wars and battles were lost due to selfish independent action from greedy or ambitious leaders. In the Hundred Years’ War, for instance, the frequent detours of English commanders to pillage particularly juicy villages to fill up their personal coffers meant many a late and ineffectual arrival to important battles where their reinforcement was needed. In peacetime, a clear chain of command remains critical towards ensuring the efficacy of peacetime activities such as manning dangerous borders and training. Hence, developed militaries have clearly understood that for their organizations to work, they needed clear systems, structures and checks and balances. All acquisitions necessarily had to follow a strict process, all major actions needed some paper trail, or at least a line of responsibility and accountability.

A critical part of this system is a clear financial process that clearly establishes military dependency on civilian society. The logic is simple: if the military relies on government-approved funding to purchase its tanks, it will think twice before using those very same tanks without government approval. It will account for every present and missing shell, bullet and rifle to justify further funding. Yet, it is easy to forget that this concept was not always the norm in history, nor the absolute rule today. One of the biggest reasons for the fall of the Roman Republic was a military which was not fully Senate-funded but rather granted the right to wage war and pillage by the Senate. In this system, military commanders would be the ones distributing the spoils as they saw fit, allowing leaders such as Julius Caesar to establish legions with personal, rather than state, loyalties. Today, the Iranian Revolutionary Guard Corps makes much of its own money through a whole array of enterprises and industries, both legal and illegal, placing it in autonomy from, and often opposition to the civilian government. In both these cases, financial autonomy fostered military insubordination against legitimate authority.

What of the US Police then? In many ways, the police resemble less modern bureaucracy or military, and more those feudal nobles of the 14th century, or the nominally Kuomintang-aligned Chinese warlords of the 1920s. Despite being technically loyal to local governments, they engage in what some political scientists and economists would term “rent-seeking” behaviours, seeking and using powers that allow them to extract additional income sources and power from their communities without creating wealth themselves. This often manifests through practices of hyper-aggressive fines and confiscation, which earns them enough money to ensure that the police are never subject to the same stringent systems of accountability and checks and balances that their country’s military complies to.

In many towns, the situation is even worse. Police-enforced fines are used not only to earn enough money to establish police autonomy, but also move in the opposite direction, to support the overall state government. In this case, the police effectively have the power to influence the local government, not the other way around, through controlling a net revenue stream for the entire system. The commonality of this state of affairs is certainly alarming – around 600 US jurisdictions, including major cities as large as Chicago, rely on fines for 10% of general fund revenues, 284 of which rely on fines for more than 20%. In extreme cases, such as the Louisiana villages of Georgetown and Lenton, fines account for more than 90% of local government revenues. While local governments sometimes do attempt modest measures to curb police power, such as mixing fine revenues with other revenues to prevent the police from having excessive negotiating power, the dynamic is still clear- the police are dominant. With this relationship in mind, successful police resistance to reform is unsurprising. Perhaps it can even be considered a small blessing that the police have not exerted even more blatant control, like dictating laws for legislatures to approve.

It is also worth noting that towns with such overzealous fine policies have tended to be towns with higher proportions of people of colour. A study from academic network The Conversation found that a 1% increase in black population was associated with a 5% increase in per capita revenue from fines and a 1% increase in the share of total revenue from fines.

To make things worse, the police departments do not just have the freedom to earn money – they also have a tremendous latitude to spend it on high-grade military equipment. Under the Clinton-era 1033 Programme, individual police departments have been able to acquire ridiculous amounts of military weaponry, which have mostly consisted of armoured vehicles but have also included fixed-wing aircraft, night-vision sets and, curiously enough, mine-detecting equipment. This was accelerated by overproduction and failure to sell excess military equipment overseas after a wave of Middle Eastern wars, which pushed prices down even further and allowed the police to end up purchasing more than $7.2bn in military equipment since 1997.

Hence, with the police free to earn as much as they can and spend on essentially anything they want, they possess far too much power and their negative incentives and resistance to reform must only be expected from there.

2. Roving Bandits: Absent accountability for the individual 

It would be one thing if the problems merely ended there, and if the police were merely incentivized to be largely autonomous stationary predatory institutions. In such a case, an equilibrium could eventually still be found, between the police department’s incentives for predation, and its need to secure at least some level of support or tolerance from the public. Such an equilibrium could be similar to the governing behaviours found in the great “stationary bandits” of history, be they Mongol or Manchu, wherein while state predation was an integral, or even the primary purpose of governance, it still retained enough incentives to keep the population somewhat satiated and prosperous, though never strong enough to challenge their overlords.

In some very limited way, this “stationary bandit” equilibrium does exist. There is still some incentive to follow the rule of law and attempt some attempt of reconciliation for each incident. Police departments do pay out massive sums every year as court settlements for cases of police excess. The New York Police Department, for instance, has paid out nearly $1 bn from 2000 to 2010 to settle lawsuits. Not to be outdone, the Los Angeles County Sheriff’s Office made $91.5 million in payments to settle court judgements in 2018-2019 fiscal year and Chicago projected itself spending $45 million on claims, refunds, judgments and legal fees in 2019. 

Yet,  the payouts keep on flowing but the behaviour never changes. Why is this so? To answer this question, one needs to look further into the stationary bandit institutions to uncover the “bad apples” who thrive within, and the three superstructures of unaccountability that guarantee them survival. The first of these superstructures is “qualified immunity”, which prevents the prosecution of individual police officers. Instead, lawsuits are made to the police departments, which have to undertake the above-mentioned payments, allowing the officers to escape mostly scot-free, with neither material incentive nor moral lesson to correct their behaviour. Indeed, Derek Chauvin, the Minneapolis police officer who knelt on George Floyd’s neck, had 18 previous complaints against him, and many “bad apple” police involved in fatal incidents have long histories of complaints like Chauvin’s.

Of course, police departments tired of making such massive payments to make up for a single officer’s excesses could attempt firing the officer in question. However, then the second superstructure of unaccountability comes into play – incredible police union power. With overwhelming powers in collective bargaining and the usual spectre of strikes or sit-ins, police unions force departments to make a binary choice, between aiding and abetting a single “bad apple”, or burning down the entire apple orchard. Even without typical union actions, police unions also possess unique powers due to the nature of their job. If a union wishes to blacklist a state prosecutor or district attorney for investigating police abuses, it can highly restrict or even completely prevent that official from being able to cooperate with law enforcement to acquire evidence for any cases whatsoever, effectively ending that official’s prosecutorial career. The results of this system are clear: unions have kept bad cops in action. A Washington Post investigation found that out of 1,881 investigated misconduct-related firings, 450 were reinstated through union appeal, including an officer convicted of sexually abusing a young woman in his patrol car.

Lastly, even in incredibly extreme cases egregious enough to break police union unity and power, there remains the third superstructure of unaccountability- relocation. Serving as a favourable middle ground to appease the unions while escape public criticism, policemen dismissed for misconduct have often been rehired by other departments across the country. Darting between petty police fiefdoms that exist as entities of stationary banditry, individual problematic “roving bandits” policemen thrive, escaping punishment for repeat offences, relocated across departments when the temperature grows too hot. With no comprehensive national database of police personnel, this kind of relocation vanishing trick has often been far too successful in hiding dangerous individuals.

With the ability to flee to greener pastures once they have ravaged their localities with their rank incompetence, these roving bandits have absolutely no incentive for restraint and self-improvement. They are free to be driven purely by violent impulses, deep prejudices and personality issues, sundering local communities in the process. A Yale study on these “wandering officers” found that they constitute roughly 3% of the total police population, and present substantial threats to their communities through their propensities to re-offend.

These superstructures of unaccountability stand in stark contrast with US military procedure, where such manoeuvring would instantly be crushed in the interest of regimentation and discipline. While high-profile cases of military excesses certainly exist, and American war criminals definitely do exist as well, military justice has strong processes with firm norms and a good track record, built under intense scrutiny from an international community eager to see how the world’s most global military treats its troublemakers.

When a soldier is convicted of war crimes, rarely do his comrades rally in union support and demand for pardons. Indeed, when Special Warfare Operator Chief Edward Gallagher went on trial for war crimes, a long line of fellow Navy SEALs went to court, not to protest but to testify against him. It is worth noting the significance of witnesses in this case, as physical evidence was lacking and the willingness of SEALs, including Junior SEALs, to testify was critical for the prosecution. Unlike the police, the military has managed to instil at least one critical lesson into its men: Excesses and lapses in discipline hurt important strategic relationships and risks the lives of your comrades.

3. Towards a stronger, broader police-community culture and scholarship: Learning from Civil-military relations

As made clear above, the road to police reform is likely to be long and hard. However, if one wants to find a useful example of how to refine an institution through scholarship, one should look to Civil-Military Relations. Civ-Mil relations is a field that explores, among many things, the fundamental Civ-Mil paradox of how a military can be strong enough to protect civilian society without threatening it. It borrows from many other scholarly traditions, including sociology, political science and history, and has built up strong academic attention from both political and military leaders interested in how to ensure proper distributions of powers, responsibilities and organizational structures in an age of increasing military-strategic complexity, political turmoil and tightening time pressures on chains of commands. Based on this scholarly work, norms have been established, reviewed and updated, correcting dangerous imbalances across different spheres. For instance, retired generals are immensely careful before making comments about present politics as they are aware that their uniform, even if long-retired, can grant an additional weight and impact to their words that they are not prepared or equipped to take on. Generals who do not show this restraint are often castigated by their fellow retired leaders, political leadership and active personnel.

Policing culture, on the other hand, is far less cautious. Certainly, it lacks the multi-disciplinary scholarship that civil-military relations studies enjoy, despite in many ways still standing within the fundamental Civ-Mil dilemma. Many of the deep questions that keep Civ-Mil scholars up at night are usually answered within the police with a dismissive shrug.

The excessive hero-worship of police in the wider public? Whatever. The responsibilities and obligations of police officials in commenting on, or directly participating in politics? Who cares. When police officials may lawfully disobey or obstruct orders from compromised political leadership? What if the judicial branch is also compromised? We’ll cross that bridge when it comes.

Certainly, deep scholarship is not necessary to answer all these questions in the moment. However, it certainly helps. Setting up guidelines and norms can always be somewhat useful, if not in deterring bad actors, then at least in guiding ambiguous or uncertain parties as to what a good path can look like. 

The police might have even more pressing cultural issues than a lack of strong self-reflective scholarship. Many commentators have already pointed out how pop culture has for decades pushed the rogue, rough policeman as an action hero, undermined by bureaucracy (also known as due process) and heroic in his attempts to break away from standard operating procedure to do what needs to be done. 

4. Why not civilianize?

Of course, some might ask “if we have established that traditional civilian agencies and the military both work, and the police don’t, why make the police more like the military? Why not simply force it to become more like any other civilian agency?”

The issue is that police do have an at least semi-valid case for their exemptions to traditional government service regulations. They do face real and pressing threats that appear qualitatively and quantitatively far different from the threats that doctors, firefighters or mailmen face. This can, at least on a surface level, serve as sufficient cover for a whole array of exemptions from typical civil service norms and regulations.

Hence, the most effective strategy that could counter police regulatory evasion would be to take their arguments to their logical conclusion. If they wish to pretend to fight a war, let them fight under the laws, norms and regulatory frameworks of war. Let them adhere to tighter controls on both individuals and wider organizational structures.

And indeed, why not take both approaches? Military-style restraint systems can be proposed in conjunction with regular civilian-style reform. Force departments to choose one or the other. Either way, it would be far more effective than the current unhappy medium that the police currently exist at, in possession of so much of the power with so few of the restraints.

Conclusion

In reality, militaries do not exist to kill. They exist to win wars. While winning wars often does entail some degree of killing, rarely is victory possible with a “kill maximisation” strategy. Very often, such a strategy is incompetent and counterproductive, and establishing constructive relationships with locals, even in spite of historic grievances and cultural-language gaps, is the only way to win wars and maintain a favourable peace. To these ends, tact, discipline, strategy, proportionality and humanity are all important instruments of war. The US military learned these lessons in Vietnam and the Middle East, and it, along with broader civilization, continues to learn the deeper nuances of how specifically. Hopefully, American police will not need their own Vietnam on American streets to start learning those basic first lessons.

Further Civil-Military Reading

Andrews, Colman. “What Public Institution Do Americans Trust More than Any Other? Hint: It’s Not the Media.” USA Today. Gannett Satellite Information Network, July 8, 2019. https://www.usatoday.com/story/money/2019/07/08/military-is-public-institution-americans-trust-most/39663793/
Brooks, Risa. “What Can Military and Civilian Leaders Do to Prevent the Military’s Politicization?” War on the Rocks, April 27, 2020. https://warontherocks.com/2020/04/what-can-military-and-civilian-leaders-do-to-prevent-the-militarys-politicization/
Cordesman, Anthony H. “The Revolution in Civil-Military Affairs.” Center for Strategic and International Studies, February 15, 2018. https://www.csis.org/analysis/revolution-civil-military-affairs
Ford, John. “When Can a Soldier Disobey an Order?” War on the Rocks, July 24, 2017. https://warontherocks.com/2017/07/when-can-a-soldier-disobey-an-order/
Kaurin, Pauline Shanks. “Professional Disobedience: Loyalty and the Military.” RealClearDefense, August 8, 2017. https://www.realcleardefense.com/articles/2017/08/08/professional_disobedience_loyalty_and_the_military_111998.html
Kohn, Richard H. “Out of Control: The Crisis in Civil-Military Relations.” The National Interest. The Center for the National Interest, June 24, 2014. https://nationalinterest.org/article/out-of-control-the-crisis-in-civil-military-relations-343
O’Hanlon, Michael. “Is Civilian Control of the Military Eroding?” The National Interest. The Center for the National Interest, November 21, 2018. https://nationalinterest.org/feature/civilian-control-military-eroding-36507
Robinson, Michael A. “Danger Close: Military Politicization and Elite Credibility .” War on the Rocks, August 21, 2018. https://warontherocks.com/2018/08/danger-close-military-politicization-and-elite-credibility/
Schulman, Loren Dejonge. “Post-CHAOS Homework on Civil-Military Relations.” War on the Rocks, February 22, 2019. https://warontherocks.com/2019/02/post-chaos-homework-on-civil-military-relations/

Further Police Readings

Ray, Rashawn. “Bad Apples Come from Rotten Trees in Policing,” May 30, 2020. https://www.brookings.edu/blog/how-we-rise/2020/05/30/bad-apples-come-from-rotten-trees-in-policing/.
Perry, Andre M., Rashawn Ray, and Raman Preet Kaur. “Reflections on Police Brutality and Racial Violence in America,” June 3, 2020. https://www.brookings.edu/blog/brookings-now/2020/06/03/andre-perry-and-rashawn-ray-reflect-on-the-ongoing-police-brutality-and-racial-violence-in-america/.
“How Chicago Racked up a $662 Million Police Misconduct Bill,” March 20, 2016. https://www.chicagobusiness.com/article/20160320/NEWS07/160319758/how-chicago-racked-up-a-662-million-police-misconduct-bill.
Pilcher, James, Aaron Hegarty, Eric Litke, and Mark Nichols. “Fired for a Felony, Again for Perjury. Meet the New Police Chief.,” December 15, 2019. https://www.usatoday.com/in-depth/news/investigations/2019/04/24/police-officers-police-chiefs-sheriffs-misconduct-criminal-records-database/2214279002/.
Calvi, Mary. “NYPD Paid Nearly $1 Billion To Settle Lawsuits,” October 14, 2010. https://newyork.cbslocal.com/2010/10/14/nypd-paid-nearly-1-billion-to-settle-lawsuits/.
Carrega, Christina. “Millions in Lawsuit Settlements Are Another Hidden Cost of Police Misconduct, Legal Experts Say,” June 14, 2020. https://abcnews.go.com/US/millions-lawsuit-settlements-hidden-cost-police-misconduct-legal/story?id=70999540.
Lawson, Edward. “TRENDS: Police Militarization and the Use of Lethal Force.” Political Research Quarterly 72, no. 1 (2018): 177–89. https://doi.org/10.1177/1065912918784209.
Ress, Dave. “Police Acquisition of Military Surplus Equipment Soars as Critics Decry Militarization of Law Enforcement,” June 7, 2020. https://www.dailypress.com/news/crime/dp-nw-police-military-surplus-20200607-y26jfkaexjgkjesg66tdjuyf4i-story.html.
Kommenda, Niko, and Ashley Kirk. “Why Are Some US Police Forces Equipped like Military Units?,” June 5, 2020. https://www.theguardian.com/world/2020/jun/05/why-are-some-us-police-forces-equipped-like-military-units.
Singla, Akheil. “Cities with More Black Residents Rely More on Traffic Tickets and Fines for Revenue,” October 21, 2019. https://theconversation.com/cities-with-more-black-residents-rely-more-on-traffic-tickets-and-fines-for-revenue-124067.
Maciag, Mike. “Addicted to Fines,” September 2019. https://www.governing.com/topics/finance/gov-addicted-to-fines.html.