Law, Police, and Social Problems
I
FROM the police point of view there may be no such thing as a typical city. The maintenance of order and the enforcement of police regulations present questions which can be answered only after consideration has been given to a large variety of factors, many of them local and individual. Geographical position, the ethnic character of the population, economic conditions, and the political ideas and ideals of the community, must all be borne in mind in the development of rules and theories of social control. In this, of course, the problem of the police does not differ from other institutional questions. The best form of government for a city is never some abstract, platonic conceit, but, like the best suit of clothes for an individual, it is the one that fits. A community which, for any reason, elects incompetent and untrustworthy officials and is indifferent to the kind of government it gets, is quite certain to get bad government, however admirably contrived the mere machinery of administration may be. On the other hand, inconvenient and cumbersome machinery, in the hands of capable and upright men, often produces excellent results, especially when sustained by an alert and intelligent public opinion. The matter was all stated by whatever Englishman it was who said, ‘If you elect a rogue to represent you in Parliament, he does represent you!’
To the public mind the police problem in any city means the problem of selecting and managing a force of men organized for the purpose of detecting criminals and repressing disorder. To those who have had the responsibility of being municipal executives it is rather the problem of devising ways to attract an informed public opinion to new phases of old social questions, or to anticipate prejudice by disseminating real knowledge as to new evils requiring restraint in the interest of the common good. With all his solid look, the policeman carrying out a regulation which is disapproved by the community conscience is either a tyrant or a failure. Emerson was no doubt right in his picture of the child acquiring his first notion of society from the patrolman, who seems always to have been and destined always to be; but we are not children long, and the fixed and eternal institutional world into which we are born crumbles with our first contact with a yielding fact. After that we are in the secret: laws are what men will. Bad laws are the willing of bad men; and forgotten words in statute books which no man now wills are not laws, with never so many policemen back of them. Of course this does not mean personal nullification, either in theory or in practice. All but the least restrained of us are willing to give the benefit of the doubt to the claimant, and to abate mere personal or group opinion in deference to even doubtfully authenticated public opinion; but after a while even the most law-abiding and patient find that the thing claimed to be the will of the community is nobody’s will, and then we have one of those stumbling blocks called ' deadletter laws,’ which cause more trouble and confusion than all other aspects of the problem of social control combined.
One result of this is that we Americans have got into the habit of saying of ourselves, or permitting others to say of us, that we are a law-breaking people. The fact is that we are probably the most law-abiding people in the world. We have an inexplicit and inexplicable method of repealing some of the laws we outgrow by simply ceasing to observe them; but, in the maintenance of order in society through the automatic self-control of the people, none but the simplest rural societies can compare with us.
These dead-letter laws, naturally enough, are in all stages of being dead. Those against witchcraft have been dead so long that even the sharpest eyes can find but the memory of them; those requiring men to tell the truth in personal-property tax returns, equally but not so anciently dead, can still be summoned, like Glendower’s spirits and with like effect, from the vasty deep; and those of more recent repudiation have, here and there, a tardy friend who refuses to accept the current notion of their deadness and so calls them occasionally into fitful simulations of being alive. It is this last class that causes the trouble, and out of it arises one of the most embarrassing phases of the whole question of law-enforcement. Mayors, administrations, and police forces are more often and more successfully attacked from this point than any other, and the consequences, all too often, are corrupted policemen and shuffling executives who give the best excuse they can think of at the moment for failure to do the impossible, but succeed in adding nothing to the dispute but a sense of their own perplexity.
The argument ordinarily presented marches with a stately tread. ‘You have taken an oath to enforce all the laws,’ the chairman of the Law-Enforcement League will say; ‘here is a law you are not enforcing. You are not chosen to elect which laws are to be enforced, nor have you any means whatever of determining whether this law is approved by the general conscience. The best way to repeal a bad law is to enforce it.’ Now the logic of this is sound enough, but the history of our law from the earliest times shows that we Anglo-Saxons have preferred a wholly different way of making and unmaking our laws; and however desirable this perfectly logical way may be in itself, it just is not our way. We have chosen to let the acts and thoughts of individuals make whatever head they can until they become customs; and then some legislative body discovers them in full operation by common consent, and by enactment ‘crystallizes them into law.’ The process of unmaking is much the same. A custom is the aggregate of individual habits, and a new custom replaces an old one as an increasing number of individuals change their habits, — an imperceptible and teasing process which leaves the inquirer as to the state of the law, at some moments in its course, sadly puzzled.
Even the Law-Enforcement Leagues plainly have some sense of this fact; their arguments, grounded on generalizations, always end in an instance. The sensational pulpit will rebuke the police department for its failure to enforce the law; a committee will wait upon the mayor and demand enforcement to the letter; but whether the committee be clerical or lay, and however broad the foundation laid upon the vice of disregard of law, the object finally appears to be to secure the enforcement of some particular law. It may be t he midnight or Sunday closing of saloons, the prohibition of theatrical exhibitions en Sunday or prize fights on any day, or another spasmodic revival of the notion that merely putting a few women through the amercing processes of the police court will suppress vice; but when such a delegation is asked whether the lesson of respect for law will not be further impressed by stopping Sunday street cars, suppressing the Sunday newspaper, holding up the milkman, and generally restoring by force the sabbath of the statutes, wisdom triumphs over knowledge, and the reply invariably is that it would be better to take one thing at a time and especially the one thing then agitating that particular delegation. Often the order asked is given, with the result that the committee reports back in triumph, the league chooses a new subject to fret about, and the executive goes again through the discouraging and futile experience of trying to get officers, prosecutors, judges, and juries to do j ust what none of them will do,— namely, convict people of crime for doing things that are the community habit and practice. Clearly it would be better if all the law could be writ ten and all that is written be law. Clearly it is a bungling system to leave this borderland between the live and the dead law to be explored by the discretion of individual officers, and to have these constant controversies as to the existence and location of the river of doubt; but we trail centuries of experience behind us in our preference for this way of doing things, and the alternatives are not free from difficulties of a formidable kind.
For one thing, it will never be easy for us to give up the internal elasticity of our system in exchange for a rigid regimentation of society in which our daily lives will run by rules. We have a sense of freedom in our institutions which seems almost to imply a consciousness that we made the rules to which we conform and are busy revising them from day to day. Moreover, our democracies are too large to act with the speed of a town meeting; and we must, therefore, have some way of carrying things along until we are sure enough of the permanence of a new practice to justify putting so large a machine in motion to give it formal expression. We prefer to have mistakes made, now and then, by those whose business it is to enforce the laws, rather than to subject ourselves to a mechanical enforcement of arbitrary regulations which do not grow as we grow and do not ease up as we push the whole social weight against them.
The common-law jury system exemplifies the whole story. Originally the jury was a company of eye-witnesses gathered together to declare a fact by comparison of their own recollections as to its occurrence. Now it is a company of twelve human, habit-forming beings whose function is to prevent the letter of the law from killing the spirit of the community. The lawyers may read and the judges charge, but the jury will not convict unless justice is going to be done, and justice to them means the enforcement of the expectation of the community as to personal conduct. They enforce neither the law that has been nor the law that is to be, but the law that is; and when the police have made a lot of arrests and have produced flawless proof of guilt under the letter of the statute, only to have their trouble for their pains, with acquittal following each arrest, they quite naturally decide to devote their energies to other classes of cases; and that particular statute, for the time being at least, has suffered a democratic repeal. It has been suggested that a constitutional provision might limit the life of all legislative enactments to a fixed period, thus requiring the reënactment of such laws as were still deemed desirable; but as this requires too much explanation and is a fundamental departure from our traditional practice, it is but a fanciful comment upon the root difficulty which inheres in our system and which we have learned to tolerate. The net result of it all is that our regulations which are in the course of losing the sanction of public opinion present a robust difficulty in police administration.
II
A similar difficulty is presented by regulations which are in the course of securing the sanction of public approval. The police power, as lawyers use the phrase, is the power of the state to protect the safety, property, and possibly the convenience and comfort of the members of the society constituting the state. But there is no more indefinite power known to the philosophers in jurisprudence. Courts are constantly declaring, either that the police power is insusceptible of definition, or that, since all definitions are limitations, it would be highly impolitic to define it. This power must be kept alive and larger than any expression of it, for new ills arising in the development of industry and life will necessitate extensions of the power to cover them, and the growth of knowledge must constantly suggest new ways and new virtues in social control, all to be worked out under the police power. Every discovery of science in the field of sanitation, the cause of disease, and modes of infection; new views of community peril from fire, food, air, or water, — all summon the police power to unaccustomed action, and each such action encroaches upon that reserve of private right of person or property which theretofore has been regarded as unsurrendered by the individual.
Many of the police regulations thus suggested are necessarily based upon scientific considerations understood by but few members of the community, and about many of them there exist prejudices and doubts which add bitterness and a sense of wrong to the usual resentment against merely new restraints. We have varieties of religious belief and of racial custom which are often rudely offended by regulations plainly wise and enacted by men who never knew that such beliefs were entertained by anybody. Mothers resent the interference of the state in their care of their babies; men and women deny the right of society to make them change habits venerated by the recollection of stout grandparents who lived to be a hundred with just such habits from childhood; we are all sure that our houses are not going to catch fire and cause damage to our neighbors, no matter what wise men think they know about the bad habits of piles of rags carefully and conveniently put out of sight under the cellar stairs; and we have the unanswerable argument on our side that our houses never have caught fire, or if one of them once did, it was due to an exceptional cause which we are too clever to allow again. To the extent that this sort of thing is individual, eccentric, or personal, it of course presents no problem beyond the reach of tact and patience; but the very nature of many of these regulations is such that their observance could never be dictated as a spontaneous community habit; so that here again we find a police problem, and on analysis discover that its difficulty arises from the fact that it calls for measures back of which there is not as yet a well-developed community understanding and will.
The answer to the difficulty thus presented is not simple, but at least one helpful suggestion can be made about it. We must stop regarding policemen as mere keepers of order, and we must enlarge our view of their duties far beyond the arrest of criminals and the terrorization of the neighborhood small boy. They must be selected with reference as much to their ability to catch and spread the spirit of the social advance as to their personal courage and cleverness in following the twists of the criminal mind. Their chief use will some day be the stimulation of social selfcontrol; for even now the most powerful force for the preservation of order is not the force shown or even implied by the policeman, but that innate sense for order which we Americans have and which we enforce by the pressure of neighborhood opinion and crowd selfrespect.
We can begin now to build the police force of the future. A good start would be made if a probationary period were established during which men too young for admission to the regular force could be in training for it. During that period the duties assigned should be largely on t he social side, — duties such as sanitary inspection, traffic control, the regulation of amusements, and patrolling parks and public places in which people congregate for recreation; this work, under such conditions as conduce to the development of the social sense, would t herefore train into these future policemen, in their impressionable years, a sympathy with people, born of association with them and of helpfulness extended to men and women and children as part of a duty flowing from employment by society itself. The use of such probationers for the enforcement of sanitary regulations and for inspections based upon scientific and mechanical considerations, and especially their activities in juvenile recreation and correction, would broaden their information and their sympathies. Officers so selected and so trained would have a less military, a less professional and arbitrary attitude, and the enforcement of pioneer regulations would be simpler and less misunderstood from them.
III
From all that has been said, it is clear that the difficulties of the police problem, at least under our American theory and practice, lie almost wholly in the region where, for one reason or another, public opinion is uncertain in its attitude toward the things sought to be required or repressed. Where public opinion is settled and stable we police ourselves, with little need for a lot of ‘Do’ or ‘Don’t’ signs, set up by authority, and with little occasion for intervention by policemen. But when we do not know what we want, the police do not know what to give us. Their perplexities and many of their shortcomings are the outcome of our own uncertainties, and disappear with them. Several illustrations will show the soundness of these reflections.
Let us look first at the disorders and contentions growing out of labor disputes. One of the curious anomalies of our social development is that in spite of a tremendous industrial advance we seem not to have arrived at anything like a settled state of the public mind with regard to the propriety and limits of intervention by law in such controversies. Year after year we have allowed strikes, boycotts, and lockouts to interrupt the ordinary course of our industrial life, diminish the social output, disorganize values, and cause widespread suffering and destitution, all of which imposes burdens direct and indirect upon public and private relief agencies; but we have not acquired even the beginnings of a public policy on the subject.
Employers, singly and collectively, resist what they regard as unjust demands, or demands which, if granted, will flush their employees with success and dispose them to make unjust demands. They combine and aid one another morally and financially in efforts to break the strength of employees attempting association for collective bargaining. Employees, on the other hand, unionize and federate primarily for the protection of the weaker individuals against the concentrated power of the employing class; and when so federated they fall victims to leaders who are sometimes corrupt, but who oftener, discouraged by the stone wall of unargued resistance, accept the theory that a labor controversy is a war in which weakness is the only crime. As a result we have lawless violence which so far impeaches the character of all associated labor as to make resistance to it seem necessary for the preservation of any semblance of security and order in society.
As each strike occurs, an opportunist policy is adopted by the police authorities. Things are tided along without any clear aim or method and without any tribunal that can determine the right and wrong of questions involved, until somebody is killed or a serious riot threatens the destruction of property. Then public opinion momentarily clarifies; we all agree that we do not want such things, no matter what happens, and the police now have a steadied sentiment to support them; the trouble is over. Until this healing incident has arisen out of the troubled waters, about all the police can do is to repress the more serious disturbances. In the surging violence of sentiment which surrounds a strike when the men begin to get desperate, the police are fortunate if they can prevent assaults and the destruction of property; they are powerless to allay the fierce outbursts of emotion which stir the participants and lead them to lawlessness.
The state of the public mind during such a time is confused and hesitant. We sit by, blaming one side or the other on such half information or interest as we may have, or wondering what ought to be done about it. Our natural sympathy is with the men who are trying to better the conditions of their employment, and we are quite tolerant of their making it unpleasant for others who have taken their places at the work-bench while they and their families are undergoing privation in the interest of more wholesome conditions, better pay, or shorter hours for the people who do the world’s work. We are dimly conscious that in the nature of the case it cannot be an equal struggle, and also that it is a struggle in which there are no definite rules. We do not like violence, but somehow this seems to us excusable violence, if it be not too violent. We realize that the employers are losing money, but we assume that the loss is distributed over a large surface and that they have ways of recouping. There are, however, several things which we have not yet come to realize, as that this loss is a social loss with just so much human labor and wealth gone and so much less wealth produced. We do not realize that in this haphazard attrition of frenzied employees against stolid employers, labor loses not only the battles it ought to lose but many it ought to win. Lastly, we do not realize that the result, no matter what it is, rests upon no higher sanction than force, and therefore lacks stability and will last only until one side or the other feels strong enough to renew the struggle.
These controversies really involve the interests of all the people in addition to the interests of the apparent participants, but they are settled by but two of the parties interested. Among the remedies suggested, compulsory arbitration has perhaps been most discussed; but labor is unwilling to surrender its freedom, and there is little public sentiment for that expedient against the protest of labor itself. From the police point of view, however, the problem remains difficult almost solely because the public mind is not at peace with itself on the subject, and this results largely from a want of knowledge or means of knowledge as to the merits of the disputes as they arise. It would seem undeniable that the public is at least entitled to this knowledge; and its effectiveness in bringing a sound public sentiment to bear is amply demonstrated by the results obtained in Canada under the Industrial Disputes Act, which does nothing more than hold the hasty hands of both sides until a disinterested inquiry can be made and published. After the publication of the report of the inquiry, either side may do as it likes, but neither side ever insists upon an extreme position, in the face of a fully informed public opinion.
Another illustration can be drawn from the enforcement of laws relating to the traffic in intoxicating liquors. This of all subjects most sharply divides public opinion. On the one side are the extreme temperance advocates, to whom the business is anathema; on the other side, in most large cities, are a majority of the people, who habitually use intoxicating liquors socially, in their homes, clubs, churches, unions, and outings, and who are easily persuaded that the whole heritage of personal liberty is bound up in the maintenance of their unrestricted right to buy drink when and where they please. The agitation proceeds all the time and throughout the state. In every state legislature the liquor question stands athwart all other legislation. Whether a particular bridge shall be built or public highway constructed is often determined by the fact that the wets are for it in a dry legislature. The short ballot, civil-service reform, woman suffrage, all have lost or won and are winning or losing as they pick their friends between the wets and drys. The really vital subject of state and local taxation, upon which we Americans have made less progress than any other, awaits the calm atmosphere of the settlement of this insoluble question for a chance to be discussed without distortion from the license controversy.
All this shows the wrought-up state of the public mind on the liquor question. Into such a divided society the anti-saloon leagues and other organized temperance bodies, by their control of the rural vote, bring regulations, wise enough and moderate enough for the country districts and small towns, but violently disruptive of the settled habits of large city populations. These regulations the police are to enforce. If they do, the executive under whom they act is frequently voted promptly out of office; if they do not, the more excitable and sensational ministers and other excellent but hasty people conclude and proclaim that the executive and police alike are in corrupt collusion with the forces of evil, and the lines are laid for a municipal campaign in which all the great interests of the city are lost in the question whether the respective candidates for mayor are ‘fanatics’ or ‘liberals.’
But the cheering thing about this illustration is the change which has come in our more progressive cities in the past ten or a dozen years. The economic elimination of the drunkard has of course been going on throughout the whole country. Captains of industry, commerce, and finance have been realizing more and more the waste of intemperate employees, and with the speeding up of the machinery of industry there has come a speeding up of life everywhere, so that young professional and business men have come to know that they cannot keep up the pace with a towel wrapped about their heads. Recreation programmes, social settlements, institutional churches and schools, bicycles, automobiles, and shorter hours of labor in forced industries have all come to give more opportunity for relaxation under leisure conditions, the consequence being a lessened reliance on the saloon either as a club or a quick means of forgetfulness, if not of rest. In many of our large cities it is now possible to find ready acceptance and approval for regulations which a few years ago would have seemed an intolerable tyranny, and the police problem from this point of view is to be solved by continuing the things we have begun. A good substitute for a bad practice is a police measure, whether it is provided out of the police budget or not.
IV
A last illustration will be drawn from the efforts to regulate and control vice. Investigators invariably begin or conclude with the admission that the fact of prostitution cannot be prevented by police activity. Remedies are therefore all addressed to the quantity and conditions of the evil rather than to any present total suppression of vicious practices. Nobody has stated better the lines for such repressive activity than Dr. Flexner. Recognizing that prostitution has always existed and that it is very much more widespread than is currently believed, he regards as unpromising all attacks upon the problem which merely punish, as crimes, irregular sexual relations. The hopeful course, if his careful discussion can be so summarized without injustice, lies in the direction of police regulation against artificial stimulation in either demand or supply.
A direct example of the results of such a course can be drawn from the city of Cleveland. In 1901 there were in Cleveland three hundred and ninety-six known and tolerated houses of prostitution, with known inmates numbering approximately four thousand. Four years ago there were forty-four houses of prostitution, with slightly more than three hundred and fifty inmates. Quite recently the chief of police has closed the district entirely, under conditions of practically general public approval and with little fear on the part of any one that the problem of clandestine vice has been seriously complicated by his action. In the mean time Cleveland has substantially doubled in population and retains the characteristics of an industrial cosmopolitan city. This progress is full of interest and suggestion, for it is unquestionable that the abolition of the segregated district, would have been as impossible in 1901 as it was easy in 1915, and equally clear that the reason in both cases was the attitude of the popular mind to the question.
At the outset it was discovered that about forty of the houses were directly associated with saloons, and Tom L. Johnson, the mayor, directed the chief of police to abolish all ’saloon fronts.’ Later, by similar order, the chief prohibited, successively, commercialization by men partners in the houses, red lights and other external advertisements, street soliciting, sale of liquor in the houses, and other inducements. The orders were issued sufficiently far apart in time to arouse no comment, or feeling that the impossible was to be tried or counsels of perfection to be followed. The orders were enforced by notification to the keepers of houses that so long as they and their inmates observed the regulations they would be free from danger of arrest or raid. When any violation occurred, a uniformed officer was stationed, night and day, in front of the house, who simply took and recorded the real names of all who visited the place. Invariably the house closed in a few days, and the keepers of the remaining houses redoubled their efforts to control their inmates and keep them within the bounds set by orders from headquarters. By this system of gradual police repression the contributory allurements were withdrawn, one by one, and the advertising of the district was suppressed.
Meanwhile two other factors were at work to change the conditions of the problem. With better education and improving economic conditions women were becoming less and less willing to accept the open degradation implied from residence in the district, and the Mann Act made it discouragingly dangerous to attempt to recruit the district from the outside. There was, possibly, some increase in clandestine prostitution, but it would be difficult to attribute it to the increasing rigor of regulation within the segregated district. Moreover, there was, during all this period, a very general increase of knowledge as to the danger from a hygienic point of view, — a danger obviously greater under conditions of segregation.
The results are at once astonishing and instructive. We had at the outset an obstinate problem with which the police had struggled hopelessly for years: raids, arrests, fines, imprisonments, and spasmodic social and religious uprisings had all failed to make any impression upon the sordid business. Then we had a police administration frankly accept the community’s view of the situation, recognize what it recognized, and repress the nuisance manifestations of the traffic as rapidly as public sentiment could be shown the practical possibility of each step. This police course was aided by changing conditions, but it never ran sufficiently in advance of what the people believed or felt to set up a counter current; and so, when the time came to close the district entirely, it was done as the natural and expected conclusion to a long and accepted development.
V
From all this we learn a larger sympathy for the difficulties of those to whom falls the duty of enforcing police regulations in our city communities. It will not be quite so possible to take at full value the condemnation which is sometimes heaped upon the police, who after all are a fairly faithful mirror of the ethical definiteness of the community they serve. But the more significant and useful lessons are that our own conception of the function of the police arm itself must change, and accordingly our method of selecting and training the men who are to comprise the force; and, finally, we get a helpful view of the direction in which to look and work for better things. We can grow only as we substitute knowledge for force. The policing of society is best done when most done by the people themselves. Every extension of our efforts for the dissemination of information as to the foundations of effective cooperation and social welfare brings its own enforcement at the hands of people who understand and appreciate. Practical agitation, it thus appears, is neither an appeal to emotional excitability nor a setting of arbitrary restraints upon the wicked by the good, but a spreading of the sound news of the social advance, and cultivating, in neighborliness and sympathy, a public opinion which will reflect its soundness in the laws it enacts and in the approval it gives to their enforcement.