(a) Recognizing that government plays a critical role in advancing public safety, all branches of government should consider and call upon the entire range of public and private institutions and resources available to achieve this goal.
(b) Legislative and executive officials should recognize the proper role that policing and law enforcement can and should play in achieving public safety, and they should consider and adopt alternative approaches that are effective and equitable, and that minimize any attendant harm.
Comment:
a. The domain of public safety. One understanding of government’s role in providing public safety is quite limited: protecting people from third-party harm. On this understanding, public safety simply means preventing crime and violence. But that definition is too narrow. Public safety should be understood to encompass the full range of issues that people believe must be addressed by the government or private entities such that they are able to flourish and lead healthy, safe, and meaningful lives.
b. The limited role of policing. Policing agencies play an essential role in promoting public safety, but they are but one of many agencies with the responsibility for keeping the public safe. Police often are thought to be primarily responsible for public safety because they are the only responders available 24 hours a day, every day of the week, to address problems that are emergencies or for which no other responder is available. But using law-enforcement officials as primary responders comes with serious social costs. See § 1.04 (concerning minimizing the harms that attend policing). Many of the problems that policing agencies and officers are called upon to deal with daily might be addressed more effectively and with less harm by individuals other than police, such as mental-health professionals, social-service agencies, mediators, medical workers, or other administrative officials. Enforcement of the criminal law is important in society, but its use should be minimized and confined to when it is necessary to achieve its aims. Law enforcement never should be utilized without recognizing its social costs and considering nonenforcement alternatives.
c. Alternative responders. To the extent the police are not the ideal responders to public-safety needs, but respond nonetheless, this is a shortcoming of society and not of the police. Many jurisdictions today are exploring alternatives to police response on issues as diverse as traffic enforcement, school discipline, unhoused populations, mental health, and domestic disagreements. Legislative and executive officials at every level of government should be exploring, funding, and promoting alternative means of addressing social issues—both on an emergency basis and otherwise—in order to address social issues effectively and equitably, and avoid the harms that attend policing.
Reporters’ Notes
Policing agencies are called upon to perform many tasks, not because they are the optimal agency to do so but because they are the default. Police are left to deal with a raft of social issues because society has failed to provide alternatives to policing. See, e.g., Daniel Yohanna, Deinstitutionalization of People with Mental Illness: Causes and Consequences, 15 Virtual Mentor 886, 887-888 in Am. Med. Ass’n J. of Ethics (Oct. 2013), https://journalofethics.ama-assn.org/article/deinstitutionalization-people-mental-illness-causes-and-consequences/2013-10 (noting that deinstitutionalization has led many mentally ill people to “‘fall through the cracks’ in the system,” and has left them to “wander the streets in major cities, being arrested or dying”); Chris Herring, Dilara Yarbrough & Lisa Marie Alatorre, Pervasive Penalty: How the Criminalization of Poverty Perpetuates Homelessness, 67 Soc. Probs. 131, 132-133 (2020) (describing studies that have found that homeless people are significantly more likely to have spent time in jail than the general population); Augustina Reyes, The Criminalization of Student Discipline Programs and Adolescent Behavior, 21 St. John’s J. Legal Comment 73, 77, 81 (2006) (explaining that schools are incentivized to adopt zero-tolerance policies and offload troubled youth onto the criminal justice system because these students’ “likely-poor test performance will pull down average[] [test scores],” reducing a school’s prestige and financial resources); Richard B. Felson, Jeffrey M. Ackerman & Catherine Gallagher, Police Intervention and the Repeat of Domestic Assault 18 (June 2005), https://www.ncjrs.gov/pdffiles1/nij/grants/210301.pdf (finding that arrests of perpetrators in domestic-violence cases have an insignificant effect on the likelihood of reoffending). The police themselves recognize this. See Michael J. D. Vermeer, Dulani Woods & Brian A. Jackson, RAND Corp., Would Law Enforcement Leaders Support Defunding the Police? Probably—If Communities Ask Police to Solve Fewer Problems 3 (2020) (“Police are frequently called to respond for minor disturbances, dispute mediation, traffic collisions, responses to alarms or low-level property crimes, and other events which undoubtedly need to be addressed but rarely need the attention of a sworn officer.”); Alfonso Morales, I’m Milwaukee’s Police Chief. Here’s What ‘Defunding the Police’ Might Mean., Milwaukee J. Sentinel (July 14, 2020), https://www.jsonline.com/story/news/solutions/2020/07/14/mpd-chief-details-cuts-might-required-defund-police/5421894002/ (“Police cannot and should not be the first responder for all social ills. Being a [police] officer in 2020 means being a part-time therapist, drug addiction counselor, landlord-tenant arbitrator, homelessness advocate, private security guard, traffic controller, parking attendant, family counselor and animal control officer.”). For a long time now, policing leaders and police themselves have decried the fact that a host of societal issues are thrust upon them, rather than more appropriate responders. See, e.g., Vermeer et al., supra, at 2 (quoting police officers criticizing the fact that law enforcement is often expected to address problems such as homelessness, substance abuse, and mental-health issues without receiving specialized training).
Many agree with the underlying insight that police have been called upon to do too much. See, e.g., Brady Dennis, Mark Berman & Elahe Izadi, Dallas Police Chief Says “We’re Asking Cops to Do Too Much in This Country,” Wash. Post (July 11, 2016), https://www.washingtonpost.com/news/post-nation/wp/2016/07/11/grief-and-anger-continue-after-dallas-attacks-and-police-shootings-as-debate-rages-over-policing/ (“We’re asking cops to do too much in this country . . . . Every societal failure, we put it off on the cops to solve . . . . That’s too much to ask. Policing was never meant to solve all those problems.”); Movement for Black Lives, End the War on Black Communities, in A Vision for Black Lives: Policy Demands for Black Power, Freedom, & Justice 3 (2020) (“Policing, criminalization, and surveillance have increasingly become the primary and default responses to every conflict, harm, and need . . .”). And being asked to deal with many problems to which their training was insufficient, police responses frequently left two forms of harm. First, and most prominent in popular discourse, police response too often ended in uses of force, arrests, and even killing. See, e.g., Alexi Jones & Wendy Sawyer, Not Just “A Few Bad Apples”: U.S. Police Kill Civilians at Much Higher Rates than Other Countries, Prison Pol’y Initiative (June 5, 2020), https://www.prisonpolicy.org/blog/2020/06/05/policekillings/ (reporting that police in the United States killed 1,099 people in 2019, or 33.5 people per 10 million—a rate that is significantly higher than other Western democracies); U.S. Comm’n on Civ. Rts., Police Use of Force: An Examination of Modern Policing Practices 4 (Nov. 2018) (finding that “[t]he best available evidence reflects high rates of [police] use of force nationally”). Second, police simply failed to solve the problem that brought them to the scene initially. They simply were not equipped to deal with issues such as mental illness or substance abuse. See, e.g., Vermeer et al., supra p. __, at 6 (noting that some officers feel like they are expected to “solve complex problems, such as homelessness, [even] when they might not have the training, the resources, or even the constitutional authority to respond in the way [their] community might expect”).
In response to this concern, many jurisdictions have begun to experiment with alternative-response models to deal with a number of social issues. See, e.g., Eric Westervelt, Removing Cops from Behavioral Crisis Calls: ‘We Need to Change the Model’, NPR (Oct. 19, 2020), https://www.npr.org/2020/10/19/924146486/removing-cops-from-behavioral-crisis-calls-we-need-to-change-the-model (explaining San Francisco’s decision to begin dispatching mobile teams of paramedics, mental-health professionals, and counselors—instead of police officers—to behavioral-health calls); Jill Cowan, Berkeley Moves Closer to Ending Police Traffic Stops, N.Y. Times (Feb. 24, 2021), https://www.nytimes.com/2021/02/24/us/berkeley-police.html (describing measures passed by Berkeley’s City Council to limit the role of police officers in traffic enforcement, including banning traffic stops that are not related to safety); Hannah Metzger, Council Committee Talks Expanding Denver’s STAR Program, Replacing Police in Low-Level Incidents, Denver Gazette (Mar. 24, 2021), https://denvergazette.com/news/government/council-committee-talks-expanding-denver-s-star-program-replacing-police-in-low-level-incidents/article_074afa4e-8cfa-11eb-882d-2391b9959a48.html (describing Denver’s Support Team Assisted Response program, which sends paramedics and mental-health clinicians to respond to 911 calls that do not involve weapons and that have a “low threat[] of violence, including public intoxication, suicide incidents, welfare checks, trespassing and indecent exposure”); Nader Issa, CPS Schools Remove Dozens of Cops, Shifting $2M from School Policing to Other Student Supports, Chi. Sun Times (July 21, 2021), https://chicago.suntimes.com/education/2021/7/21/22587789/cps-public-school-police-cops-resource-officers-sro-restorative-justice (discussing how some schools in Chicago voted to remove uniformed officers from their school and redirect funding to behavioral and mental-health support for students). The “Memphis Model” of critical incident training emerged in 1988 after a mentally ill, Black man was killed by police officers. Michael S. Rogers, Dale E. McNiel & Renée L. Binder, Effectiveness of Police Crisis Intervention Training Programs, 47 J. Am. Acad. Psych. L. 1, 2 (2019) (describing the origin of the Memphis CIT model). Its goal was both to equip police to deal with calls that involved someone in mental or emotional crisis, and to provide for co-response with mental-health professionals. Rogers et al., supra, at 2-3. Another program that has received a lot of attention is Eugene, Oregon’s Crisis Assistance Helping Out On The Streets (CAHOOTS), which sends unarmed first responders to “crises involving mental illness, homelessness, and addiction.” What is CAHOOTS?, White Bird Clinic (Oct. 29, 2020), https://whitebirdclinic.org/what-is-cahoots/ (last visited July 26, 2021). In 2019, CAHOOTS responded to 24,000 calls, of which only 150 required police backup. What is CAHOOTS?, White Bird Clinic (Oct. 29, 2020), https://whitebirdclinic.org/what-is-cahoots/ (last visited July 26, 2021). See also Indiana University Public Policy Institute, Evaluation of the Indianapolis Mobile Crisis Assistance Team 19 (Mar. 2018) (describing successes of Indianapolis’ MCAT approach in avoiding arrests).
Alternative responders can be government or community based. See, e.g., Removing Cops from Behavioral Crisis Calls: ‘We Need to Change the Model’, NPR (Oct. 19, 2020), https://www.npr.org/2020/10/19/924146486/removing-cops-from-behavioral-crisis-calls-we-need-to-change-the-model (describing a new city program in San Francisco that will dispatch mobile teams of paramedics, mental-health professionals, and counselors through the city’s fire department instead of police department); Greg Boler et al., Study of the Service Coordination Team and Its Influence on Chronic Offenders 4 (2018) (describing Portland, Oregon’s Service Coordination Team: a program run by the Portland Police Department that provides chronic offenders with “low barrier” housing and evidence-based treatment); City of Houston, Mayor’s Task Force on Policing Reform (2020) (describing Houston’s Crisis Call Diversion program, which connects some 911 callers with mental-health professionals instead of dispatching police officers, firefighters, or EMS providers); What is CAHOOTS?, White Bird Clinic (Oct. 29, 2020), https://whitebirdclinic.org/what-is-cahoots/ (last visited July 26, 2021) (describing the nonprofit-run CAHOOTS program); Crisis Response Network, Stronger Through Change: Annual Report 2020 12 (2021) (discussing the nonprofit Crisis Response Network’s mobile crisis and non-crisis intervention and transportation services). There are many community-based resources that could be brought to the task of addressing social issues if they had the proper funding. This is true even of violence reduction, as programs like Cure Violence and READI make clear. See Wesley G. Skogan et al., Evaluation of CeaseFire-Chicago 8-14 (2009) (finding that the introduction of CeaseFire, now known as Cure Violence, in four neighborhoods led to a statistically significant decline in actual and attempted shootings, ranging from 16 to 28 percent); READI Chicago Evaluation Finds Reductions in Shootings and Homicides, READI Chi. 1 (2021) (noting that an early analysis of the READI Chicago program shows that program participants may experience up to a 32 percent reduction in shootings and homicide involvement).
For the most part, the realm in which alternative response is being explored is still quite limited. Most attention is being given to mental-health issues. These make up a relatively small number of the total calls to 911, but the outcomes from having the police respond too often are tragic. See Amam Z. Saleh et al., Deaths of People with Mental Illness During Interactions with Law Enforcement, 58 Int’l J. L. & Psychiatry 110, 114 (2018) (finding that about 23 percent of people killed by police in 2015 had signs of mental illness); City of Houston, Mayor’s Task Force on Policing Reform 77 (2020) (noting that of the approximately one million calls received by Houston’s 911 call center, about 40,500 calls—slightly more than four percent—have a mental-health component). There also are programs that deal with a number of other behavioral issues such as substance use, or with other social problems like the unhoused. See, e.g., Susan E. Collins, Heather S. Lonczak & Seema L. Clifasefi, Seattle’s Law Enforcement Assisted Diversion (LEAD): Program Effects on Recidivism Outcomes, 64 Evaluation & Program Plan. 49, 49-50 (2017) (finding that low-level drug and prostitution offenders had lower odds of being arrested or charged with a felony after being connected to community resources through the LEAD program); Kristi L. Nelson, McNabb Wants More Money for its Behavioral Health ‘Safety Center,’ a Jail Alternative, Knoxville News Sentinel (June 2, 2019), https://www.knoxnews.com/story/news/health/2019/06/03/mcnabb-center-knoxville-more-money-behavioral-health-safety-jerry-vagnier/1269455001/ (describing a jail alternative for “nonviolent, misdemeanor offenders with behavioral health or substance abuse problems”); Greg Boler et al., Study of the Service Coordination Team and Its Influence on Chronic Offenders 4 (2018) (explaining that the Service Coordination Team assists those who suffer from “chronic substance abuse, mental health issues . . . , long-term homelessness, and frequent engagement in criminal behaviors”). Some small number of jurisdictions are exploring replacing armed police with other individuals for traffic enforcement. Jill Cowan, Berkeley Moves Closer to Ending Police Traffic Stops, N.Y. Times (Feb. 24, 2021), https://www.nytimes.com/2021/02/24/us/berkeley-police.html; Paige Fernandez & Brandon Cox, Brooklyn Center Provides a Model for Reexamining Public Safety, ACLU (May 24, 2021), https://www.aclu.org/news/criminal-law-reform/brooklyn-center-provides-a-model-for-re-examining-public-safety/.
Generally speaking, there are three approaches these alternate-responder models utilize. The first is not really an alternative, but involves training police to respond to emergency situations in ways other than with force and law enforcement. See generally Amy C. Watson, Michael T. Compton & Leah G. Pope, Vera Inst. of Just., Crisis Response Services for People with Mental Illnesses or Intellectual and Developmental Disabilities 27-33 (2019) (discussing the use of the Crisis Intervention Team (CIT) model, which utilizes a 40-hour specialized training “designed to provide officers with the knowledge, attitudes, and skills to safely and effectively intervene with people in crisis and link them to services”). The second is to replace the police entirely with individuals with professional training in the particular issue. See generally Watson et al., supra, at 39-44 (describing the Mobile Crisis Team (MCT) model, which provides “on-site crisis management” through the mental-healthcare system and is typically unaffiliated with police); see also Crisis Response Network, Stronger Through Change: Annual Report 2020 12 (2021) (discussing how Crisis Response Network, a nonprofit organization, dispatched 25,485 mobile crisis and non-crisis teams in 2020). And the third is “co-response” models in which the police respond to calls alongside professionally trained individuals. See generally, Watson et al., supra, at 14-19 (describing the use of the co-responder team model).
Each of these models has its difficulties. Alternative responders may be unwilling to approach incidents that might pose risks to personal safety without the police present. See, e.g., Greg B. Smith, Cops Still Handling Most 911 Mental Health Calls Despite Efforts to Keep Them Away, City (July 22, 2021), https://www.thecity.nyc/2021/7/22/22587983/nypd-cops-still-responding-to-most-911-mental-health-calls (quoting a union president who explained that few EMTs volunteered for a New York City program that dispatches non-police first responders to mental health calls, “because of the danger . . . [t]here’s a fear that without having police on the scene, who is going to mitigate?”). On the other hand, police presence can exacerbate an already fraught situation. See, e.g., Amos Irwin & Betsy Pearl, The Community Responder Model, Ctr. for Am. Progress (Oct. 28, 2020), https://www.americanprogress.org/issues/criminal-justice/reports/2020/10/28/492492/community-responder-model/ (noting that because most police officers are not specially trained to address “complex behavioral health needs” or disabilities, they often arrest these individuals without realizing that this may worsen their medical needs). Commentators express concern that when police respond, enforcement follows all too readily. See Martin Kaste, Are Police Being Taught to Pull the Trigger Too Fast?, NPR (July 15, 2016), https://www.npr.org/2016/07/15/486150716/are-police-being-taught-to-pull-the-trigger-too-fast (questioning whether standard police trainings are leading officers to resort to using force more quickly). And in co-responder models, it often is unclear which approach—the police’s or other professionals’—will prevail.
In addition, the current movement toward alternative response may be far too limited. It certainly is the case that society should respond to people in distress in ways other than with enforcement, and that the use of force itself should be minimized. This supports alternative responses to people with substance-use issues, the unhoused, and those in mental-health crisis. But there are a wide range of other situations for which police are not adequately trained, or to which bringing force and law is problematic. Traffic enforcement is a good example. Traffic enforcement today often is used pretextually, something these Principles suggest should be minimized if not eliminated entirely. See § 2.04. Traffic stops often bring great harm. See § 4.03; Erika Harrell & Elizabeth Davis, Bureau Just. Stats., Contacts Between Police and the Public, 2018 – Statistical Tables 4 (2020) (showing that being a driver in a traffic stop and being a passenger in a traffic stop were the first and second most common form of police-initiated contact in 2018); Cheryl W. Thompson, Fatal Police Shootings of Unarmed Black People Reveal Troubling Patterns, NPR (Jan. 25, 2021), https://www.npr.org/2021/01/25/956177021/fatal-police-shootings-of-unarmed-black-people-reveal-troubling-patterns (finding that more than 25 percent of Black people killed by police between 2015 and 2021 were killed during traffic stops). This is why some jurisdictions are considering removing police from many traffic encounters. Many social issues such as noise complaints, domestic disagreements, and other disputes, call for mediation more than enforcement. Police respond to criminal incidents, but what often is needed is victim services, and forensic science, both of which might be provided better by alternative responders. See § 9.02; see also Friedman, Disaggregating the Policing Function, supra, at 981 (discussing the need for police training that better aligns with the realities of what police do, e.g., training that teaches officers how to effectively write reports, interview witnesses, and respond to victims).
Of course, as the number of potential responders increase, so do the complications. One of these is dispatch. Dispatch today is ill-equipped to triage and dispatch a variety of different responders. S. Rebecca Neusteter et al., Vera Inst. of Just., The 911 Call Processing System: A Review of the Literature as it Relates to Policing 3-5, 11-13 (2019) (discussing the history of 911 and the lack of standardized data collection and analysis that prevents the system from being improved). But see City of Houston, Mayor’s Task Force on Policing Reform 85-86 (2020) (discussing Houston’s Crisis Call Diversion program, in which mental-health professionals are embedded in the city’s 911 call center in order to identify and resolve mental-health crisis calls). This is all the more the case because calls to 911 for service do not always announce themselves as requiring coercion or law enforcement. S. Rebecca Neusteter et al., Vera Inst. of Just., The 911 Call Processing System: A Review of the Literature as it Relates to Policing 19 (noting the challenge of categorizing 911 calls). Even calls that seem without risk initially can turn dangerous. S. Rebecca Neusteter et al., Vera Inst. of Just., The 911 Call Processing System: A Review of the Literature as it Relates to Policing 19 (2019) (noting instances in which a situation described in a 911 call turned out to be different than described).A second complication is sheer cost. Alternative responders may result in cost savings vis-à-vis the police. See Roger L. Scott, Evaluation of a Mobile Crisis Program: Effectiveness, Efficiency, and Consumer Satisfaction, 51 Psych. Services 1153, 1155 (Sept. 2000) (finding that the average cost of cases handled by the mobile crisis program in DeKalb, Georgia, was lower than the average cost of cases handled by police officers); What is CAHOOTS?, White Bird Clinic (Oct. 29, 2020), https://whitebirdclinic.org/what-is-cahoots/ (last visited July 26, 2021) (noting that CAHOOTS saves Eugene, Oregon, an estimated $8.5 million per year in public safety costs); Crisis Call Diversion Program, Hous. Police Dep’t, https://www.houstoncit.org/ccd/ (last visited Apr. 8, 2021) (noting that the Crisis Call Diversion Program is estimated to save Houston $860,218 per year). But under existing models, these alternatives exist alongside the cost of maintaining a police force, which is a substantial expenditure for many municipal governments. See, e.g., What Policing Costs: A Look at Spending in America’s Biggest Cities, Vera Inst. of Just., https://www.vera.org/publications/what-policing-costs-in-americas-biggest-cities (last visited July 30, 2021) (finding that a majority of the 72 largest cities in the United States spend at least 25 percent of their municipal budget on policing).
One possible solution that deserves exploration is the idea of a single, holistically trained responder. Although there certainly have been advances in policing over the last 150 years, policing today still looks very much like its 19th century origin: individuals trained primarily in force and law responding to crime, social disorder, and social needs. What if society created a different profession that involved training individuals in the wide range of skills an emergency responder might need? This could include basic medical care/EMS, mediation skills, diagnosis of behavior issues, the availability of social services, and much more. See generally Friedman, Disaggregating the Policing Function, supra, at 991-994 (proposing a new type of first responder, who would be specially trained to address a variety of social needs without resorting to force unless absolutely necessary); see also Barry Friedman, Amid Calls to ‘Defund,’ How to Rethink Policing, Wall St. J. (June 13, 2020), https://www.wsj.com/articles/amid-calls-to-defund-how-to-rethink-policing-11592020861 (arguing that first responders with more extensive, multidisciplinary training would be better equipped to address the root causes of social issues and would free up police resources). The model for this sort of response would be emergency-room doctors, who are tasked to stabilize situations, treat what they can, and refer for treatment that which they cannot solve. These new, holistically trained professionals could do the same, including having the ability to compel jurisdictions to provide follow-on services to address social problems, rather than having first responders called to the same location time and again because those problems are not addressed.