What Happens When Everything Is Broken? Grappling With #DefundthePolice

The entire paradigm underlying contemporary policing in the United States is broken. Jewish sources provide a way forward to a new model of policing.

Over- and underenforcement are twin symptoms of a deeper democratic weakness of the criminal system: its non-responsiveness to the needs of the poor, racial minorities, and the otherwise politically vulnerable. Because of this weakness, justice and lawfulness are distributed unevenly and unequally across racial and class lines, crime remains rampant in some communities but not others, and some people can trust and rely on law enforcement while others cannot.[fn]Alexandra Natapoff, “Underenforcement,” Fordham Law Review, vol. 75 (2006), p. 1719.[/fn]

Consistent with prior research, the primary conclusion of this study is there is substantial attrition in sexual assault cases reported to the LAPD and the LASD. Stated another way, very few sexual assault reports lead to the arrest and conviction of a suspect.[fn]Cassia Spohn, Ph.D., Katherine Tellis, M.S.W., Ph.D., “Policing and Prosecuting Sexual Assault in Los Angeles City and County: A Collaborative Study in Partnership with the Los Angeles Police Department, the Los Angeles County Sheriff’s Department, and the Los Angeles District Attorney’s Office.”[/fn]

You see it is widely believed in our nation that law enforcement officers are highly trained individuals. Nothing could be further from the truth.[fn]Lt. Michael S. Woody (Ret.), The Art of Deescalation (2005).[/fn]

Everything has a history. In the now classic work, The Structure of Scientific Revolutions, Thomas Kuhn describes the process of conceptual change as one of a wrenching series of anomalous findings forced into an aging paradigm until the paradigm can no longer sustain the pressure and it breaks. Then the paradigm shifts and all the formerly anomalous results are gathered under a new theory which seems to describe the phenomenon more accurately. Everything is back on course then until, of course, the next revolution.

This theory of change can be used to understand many different conceptual revolutions. In Jewish religious philosophy, for example, Maimonides outlines a history of prayer that begins with sacrifice, and then, after the Temple has been destroyed, making the altar unavailable, prayer moves to the spoken word and “matters of the heart”/devarim she-balev or inner intentions coupled with written liturgical formulae. Maimonides then envisions a future when there will be no words or thoughts, as both compromise a pure monotheism. “Prayer” will be a silent meditation on nothingness. This progression will purify the intellect and bring it closer to the Divine Active Intellect. However, for one who would pray in this manner, by silently meditating on nothingness, sacrificial rite is unintelligible, and vice versa. It is not a continuum. It is a cognitive break or jump.

When one is inside one historical moment, one is mostly bound by the epistemological boundaries of that moment and would have a hard time considering alternatives. For those who did not know about germ theory, the idea that invisible particles were moving from one person to another, and thereby infecting them and causing them to get sick and even die — this idea was considered ludicrous. It was beyond the human ken.

I would venture to say that we face a similar paradigm shift today. There is a growing body of evidence that policing doesn’t work. Not only doesn’t it do what it is supposed to do, but it harms those whom it is supposed to protect. Communities of color, on the whole, are over-policed and under-protected. That means that while there is a heavy police presence, those officers of the law do not solve many crimes. People do not feel any safer for them being in their neighborhood. Across the board, clearance rates of crimes are astonishingly low — whether the crime is homicide, rape or burglary.

At the same time, police officers — men and women trained in the use of force— are called to respond mostly to incidents which are either noncriminal (checking up on an elderly person or bringing someone to the hospital, a car accident), or not violent (graffiti, shoplifting, larceny), or better dealt with by a trained social worker (domestic dispute). As a result, the possibility of friction ending in violent encounter goes up. When an armed officer presents themselves, their bottom line approach is “or else.” They are always on the cusp of “or else.” Put that CD back “or else.” Stand up against the wall with your feet spread “or else.” Once the line is drawn, the drawing of the weapon is only a matter of time and heated words.

Many white people not living in poor neighborhoods will read this with a certain amount of incredulity. Police have always “policed,” have they not? What is the alternative? Well, obviously, policing like everything else has a history, and like all histories, it is more discontinuous than continuous. The notion of crime itself — as an offense against the government, rather than a tort whose target seeks redress or sin whose ultimate victim is God — is itself a rather recent development in the arc of history. In the remainder of this essay, I would like to trace the history of “police” in Jewish tradition and then claim that we are at a moment of paradigm shift which demands from us boldly imagining a different future.

The current Hebrew word for police officer (shoter/et) is found in Torah.[fn]Stephen Passamaneck, Police Ethics and the Jewish Tradition, covers much of the ground of the next few pages but in a very different tenor, tone and purpose. His book is notable in that it is the only monograph in English on this important topic.[/fn] Deuteronomy 16:18 commands: “Judges and overseers (shotrim) you shall set for yourself within your gates that God your God is about to give to you according to your tribes, and they shall judge the people with just judgment.”[fn]Based on the translation of Robert Alter.[/fn] What then is a shoter/et? Alter’s translation of “overseer” is consistent across the biblical texts, but is rather vague. An overseer can be a neutral supervisory function, or a taskmaster with a whip.

The neutral side of the definitional landscape or semantic field is occupied by the second- or third-century BCE Septuagint’s[fn]The first Greek translation of the Hebrew Bible.[/fn] Greek grammatoeisagogeis, which means recorder or scribe or official. The first part of the word grammateus is used to translate the Hebrew sofer or scribe.[fn]Ezra … hasofer is rendered by the Septuagint as Ezra the grammatei. It is possible that the Septuagint’s version of Deuteronomy had shoftim ve-soferim, but that is neither here nor there.[/fn] If we see this as a translational tradition, the Septuagint community understood the shotrim as recorders of the law or scribes, which stood somewhere between teachers and interpreters.

Occupying another space entirely on the semantic field are the approximately third-century CE Aramaic targumim, or translations. Onkelos translates shotrim as pur‘anin or exactors of retribution, while Targum Yerushalmi translates sarkhin ’alimin or strong officers. While ’alim in Aramaic has the meaning of powerful, in Modern Hebrew it means violent, and that meaning is already present in the Aramaic.

Jumping ahead to the 10th-11th century, Rashi comments on shotrim: “Those who subjugate at the command of [the judges] with a stick and a whip, until [a miscreant] accepts upon himself the decision of the judge.” It is pretty clear to Rashi that the shotrim are the enforcement arm of the judiciary, and the tools that they may use are violent tools.

Abraham ibn Ezra, another medieval commentator, translates shotrim as rulers (moshlim). Meaning, for him, that the judge adjudicates, and the shoter forces the wrongdoer back to the right path.

When Maimonides comes to inscribe this law into his Mishneh Torah, he opens the Laws of Sanhedrin with the following: “It is a positive commandment of Torah to appoint judges and shotrim in every state and every province as it says: ‘Judges and overseers you shall set for yourself within your gates.’ Shoftim are the judges [dayyanim] who permanently sit in the courthouse, and litigants come before them. Shotrim are the ones who bear the staff and whip, and they stand before the judges who circulate in the markets and the streets and upon the stores in order to fix the measures and the weights, and to smite all the transgressors. All their actions are according to the judges. Anyone who sees a person engaged in a prurient or immodest matter brings it to the courthouse, and they judge him according to his evil.”

What Maimonides has done here is incorporate a description of the shoter from the Talmud (overseeing the weights and measures) with a notion of prurient wrongdoing that needs authoritative correcting. There is, however, no precedent in Jewish textual tradition for this latter part. Gerald Blidstein has suggested that the image of the shoter in Maimonides is, at least in part based on the Islamic muhtasib, who was in charge of overseeing just business conduct in the market, and also policing matters of ritual and personal morality.[fn]Gerald Blidstein, “Muhtasib and Shoter: The Shape of Cultural Diffusion,” (Hebrew) Shenaton ha-Mishpat ha-Ivri: Annual of the Institute for Research in Jewish Law vol. 14/15, p. 89. Blidstein suggests that Maimonides may have been influenced by the fact that the Talmud relates that during the simhat bet hashoevah on Sukkot, shotrim would circulate to make sure that no sexual improprieties were happening.[/fn]

Maimonides’ description above of the shotrim seems to prefigure modern day police. Their role is to ensure that business dealings are done fairly — that no one is messing with the weights and measures in order to defraud their customers. Additionally, these officers are deputized to enforce public morality. What is interesting is that, although Maimonides continues in the Laws of Sanhedrin with a very detailed description of what judges do, how they are chosen, where they serve, what are the rules of conducting trials and so on, this is the last mention of shotrim in this part of the Mishneh Torah.

Maimonides does mention shotrim in a few other places. [fn]Shvitat asor 1:7, Yom tov 6:21, Geneivah 5:14, Mekhirah 14:1.[/fn] However in those places, Maimonides does not expand on what he writes here. It seems that the shotrim are more or less agents of the department of weights and measures and the morality patrol. The central functions that we assign to policing — solving crimes and arresting those assumed guilty — are not at all a part of the brief of the shotrim.

This is not actually surprising since until the 18th century or so, solving crimes and demanding justice of an offender was not a governmental function. One of the conceptual shifts in Western understandings of policing, which coincided with the rise of the administrative state, was that crimes were transgressions against the king and the country as a whole. Thus, an aggrieved person did not have to bring a transgressor to court. Rather, the king’s agent could do that.

To illustrate the difference between a pre-modern conception of wrongdoing that became a modern conception of crime, I will cite a part of a Talmudic text.[fn]Bavli Baba Batra, 38b-39a.[/fn] The discussion concerns meha’ah, which is the protest that a landowner must articulate in order to show that he does not sanction another person living on or working his land. This protest comes to ward off a claim by the usurper that the land is actually his. The anonymous voice of the Talmud asks: “What is meha’ah?” In other words, what would fulfill the legal requirements of having “protested” the incursion on to the land by the usurper? Rav Zvid, a Babylonian sage was the student of two of the central figures in Babylonian rabbinic Judaism, Abbaye and Rava. He lived in the fourth century C.E.  He replied to this query: “[Saying] ‘Ploni is a thief,’ is not considered a protest. [Saying] ‘Ploni is a thief who has taken my land through theft, and tomorrow I am going to sue him in court,’ that is a protest.” (“Ploni” is the Aramaic equivalent of John Doe.)

If this had happened in today, the owner would have called the police and gotten them to kick Ploni off the land. They then would have hauled him into court and charged him with property theft. It would have been a criminal matter.[fn]Today, this might also be a civil matter.[/fn] The state would have intervened. In the law as envisioned in the Talmud, this is a civil matter only, and there is no police force to intervene or to investigate and determine probable guilt. This is true with all manner of violent interactions which today would be understood as assault and therefore a crime, while in the Talmud they are seen as torts and therefore resolved within a framework whose origins are in the biblical “an eye for an eye,” but which is played out as compensatory. If I chop your arm off, even on purpose, in rabbinic law I must compensate you, but I am not guilty of a crime for which I would be punished by a third party: the state.

There is then a disconnect between the historical context of policing in the Jewish legal tradition and the contemporary world. It is interesting then to see Rabbi Hayyim David Halevy (1924-1998), the chief rabbi of Tel Aviv, grapple with this exact question. Halevy’s book Dvar Hamishpat is a commentary on Maimonides’ Law of Sanhedrin, written with an eye on the contemporary reality.[fn]He also had a weekly show on Jewish law called Aseh Lekha Rav, in which he answered callers’halakhic queries, thus giving him a great deal of practice with interpreting Jewish law for the masses. The questions on that show were gathered together in a series of books also called Aseh Lekha Rav.[/fn] He starts off his commentary with a discussion of shotrim. On the one hand, he is obviously bound by Maimonides’ declaration that it is a positive commandment to appoint shotrim, which he does understand, as will become clear, as police officers of a type.

By way of a close reading of the text of Mishneh Torah, Halevy suggests that there are two types of judges. One type is the judge who sits in the court and judges cases. The other are “the judges who circulate in the markets and the streets.” The shotrim, then stand with these judges and fulfill their orders. Halevy admits that this suggestion is not necessarily supported by this or any other text.

It’s true that we haven’t found anywhere judges who walk around in the markets and in the streets accompanying the police, and what I wrote above is only an interpretation of the language of the rabbis. But, it is also possible to say that the police officers charged with the responsibility of maintaining the public order, extending to the authority of arresting a person and bringing that person to the seat of judgment, are also called “dayyanim” — judge. Even though it is not their job to really judge, arrest is essentially the beginning of judgment, and for that reason, they are called judges.[fn]Dvar Hamishpat: Hikhot Sanhedrin I.[/fn]

Halevy here reveals that something else is bothering him. The contemporary fact of arrest is a legal procedure that should be carried out by one who knows the laws — that is, a judge. Yet if the shoter is the one doing the arresting, how does Halevy deal with the fact that this official is not trained as a legal scholar. Halevy addresses this head on.

This role, of arresting a person and bringing him/her in front of the court should not mean turning the person over to someone who is not well-versed in law, and who does not know well the nature of the transgression. It already happens many times that a person is arrested, and in the course of this person’s arrest, it becomes clear that s/he didn’t do anything wrong. Or, this person is brought before a court, and only there it becomes clear that s/he did nothing at all wrong. But in the meantime, much damage has been caused to this person, both material and to one’s person, and all of this is because it seemed to the officer or the police that this person had broken the law, and therefore, even short-term arrest is not permissible except by the authority of the judges who walk around with the police.

So Halevy imagines this double function of judge and police for the shoter. For it is only possible that one versed in the law could avoid all the pitfalls of modern-day policing.

Halevy ends his comment completely in the subjunctive mood.

It is no surprise that the police officers of the people are also called judges, for they carry out judgment by imposing the social order on the people … and it is within their authority to arrest criminals and to bring them to court … . For this reason, the verse “you shall appoint judges and officers” is interpreted to mean “the officers are judges. These officers are the leaders who have responsibility for the community.” That is to say that the job of police officers is not restricted just to carrying a baton and a belt and to the punishment of criminals, for the role of being a leader and a judge confers authority and limits that restrict this [use of force] for they are the leaders of the generation.

In Halevy’s ideal world, police officers are moral exemplars, leaders and judges whose authority stems from their personal character and their impeccable knowledge of the law, in addition to being able and permitted to enforce their rulings with force. Aside from the violence implicit in this description, contemporary police forces in the United States are nothing like this.

There is a plethora of research that demonstrates that police forces are not good at their central crime-fighting functions and crime-solving functions.[fn]“How effective are police at solving crime? It turns out, unfortunately, not very effective … . At police’s best, in some years, 40 to 52% of murders are getting away with their crimes.306 With rape, individuals are getting away with it up to 90% of the time.307 And property crimes are much worse with burglars getting away with it 97% of the time, robbers 94%, and those who commit larceny 99% of the time.308 This lack of police effectiveness means people are getting away with serious crime and victims are suffering as a result. Shima Baradaran Baughman, “How Effective are Police? The Problem of Clearance Rates and Criminal Accountability,” Alabama Law Review, Forthcoming accessed at https://ssrn.com/abstract=3566383 on 8.31.2020.[/fn] Additionally, when the police pivot to maintaining “order,” their efforts often result in the infliction of harm, which, again, does not lower the incidence of criminality.[fn]“In short, policing is surrounded by, and perpetuates, deep rivers of harm. Focusing on strategies to reduce stops, searches, force, and arrests, is not going to address chronic social problems, nor alleviate the harms of under-policing. Achieving real public safety requires a deeper understanding of the role police play, and how we can alter the response to these harms.” Barry Friedman, “Disaggregating the Policing Function,” Public Law and Legal Theory Research Paper Series Working Paper No. 20-03, April 2020, New York University School of Law. Accessed at https://ssrn.com/abstract=3564469 on 8.26.2020. p. 16.[/fn] The strategies of social control, such as “stop and frisk” and “broken-windows policing,” result in the neighborhoods that need protection from high levels of crime being over-policed and under-protected.[fn]Alexandra Natapoff, “Underenforcement,” Fordham Law Review, vol. 75 (2006), p. 1719.[/fn]

Contemporary police forces — as a result of the dearth of many social services such as mental-health practitioners and mental health clinics, social workers, drug rehabilitation clinics, restorative justice practitioners — are expected to respond to all manner of social ills, almost all of which are not strictly criminal, and most of which do not require the violence of “or else” which is the police officers’ forte. As Barry Friedman writes: : “What is glaringly obvious is that officers are trained primarily on how to use force and engage in law enforcement. There’s also, as with any job, a big dollop of basic policing administrative protocol. Where they get the least training by far is in the categories of mediation and social work, and in dealing with non-law enforcement emergent situations.”[fn]Friedman, p. 21.[/fn]

To quote from the film “Cool Hand Luke”: “What we’ve got here is a failure to communicate.” That is, the Jewish textual sources which inform Halevy’s understanding of what a Jewish conception of policing is and what police officers should do, are addressing a social reality which is so different from ours that it is nigh well unbridgeable.

We are in the midst of a paradigm shift. All the evidence shows that the previous theory is broken. An institutional police force as currently conceived is not fulfilling its core functions of protection and crime solving; it is being tasked with activities that it is neither trained for nor competent at; and worst of all, it is inflicting harm on the communities that it is supposed to protect. In fact, the actions of the police department call into question whether they are actually broken — that is, not performing at their assigned tasks — or whether they are performing exactly as (white) society wants them to. We cannot ignore that while poor Black neighborhoods are over-policed and under-protected, rich white neighborhoods are under-policed and over-protected. We also cannot ignore that the history of policing in the United States starts with slave patrols and the rounding up of Native Americans for auction to farmers.[fn]See Kelley Little Hernandez, City of Inmates: Conquest, Rebellion, and the Rise of Human Caging in Los Angeles, 1771-1965 (UNC Press: 2017); Douglas Egerton, He Shall Go Out Free: The Lives of Denmark Vesey (Rowman & Littlefield: 2010).[/fn] We have to ask: Is this a bug or a feature?

What do we do now that all is broken?

The ultimate solution that has been proffered by both legal scholars and Black Lives Matter activists is to “defund the police.” What this means, in fact, is to divest from the enormous budgets that police departments have, and invest in social services and education and job training in impacted communities.[fn]In Los Angeles 54% of the budget goes to the Los Angeles Police Department.[/fn] Many of the activities now carried out by sworn officers can be carried out by civilians or other professionals. There is no reason to have an armed officer at a traffic accident. There is no reason to have an armed officer giving out parking tickets or summonses for broken tail lights. In fact, if the criminal code were changed, many of the pretextual police stops that lead to violence and death, such as broken tail lights or not signaling when switching lanes, officers would not be needed to hunt for “wrongdoers.”[fn]Sandra Bland “a 28-year-old African-American from the Chicago area, was taken into custody in southeast Texas following the confrontational 2015 traffic stop and was found hanging in a jail cell three days later in what was officially ruled a suicide.” David Montgomery, “Sandra Bland, It Turns Out, Filmed Traffic Stop Confrontation Herself,” The New York Times, May 7, 2019, accessed at https://www.nytimes.com/2019/05/07/us/sandra-bland-video-brian-encinia.html on 8.31.2020.[/fn]

There will still be a very small percentage of situations in which violent force needs to be confronted. In those situations, there would be a need for a small force trained in de-escalation and the use of violence. However, even in this case, the current framework for the police to deploy violence has proven itself ineffective and dangerous. Borrowing from Halevy, I want to suggest that there be something like the “judges who circulate in the marketplaces” who accompany the police. Using the model of medical ethics teams in hospital who weigh in on end of life questions, triage questions and all manner of life and death issues, I am suggesting that there be ethics teams who are in contact with police on the ground, and who have to give the final go-ahead for use of force. Since the possibility of deploying deadly violence will have been reduced to a small percentage of cases in which perpetrators are actually threatening deadly violence, it will possible for these ethics teams to be on standby for those cases.

Most of what is currently considered policing, such as wellness checks, traffic violations, domestic-violence situations, will be addressed by trained civilian professionals. Criminal investigations themselves do not need to lead with violence, nor are they as effective when they do.[fn]See Jill Leovy, Ghettoside: A True Story of Murder in America, (Spiegel and Grau: 2015).[/fn] Even situations where there is a threat of violence, such as domestic-abuse calls, “perhaps force ought to remain in the background.[fn]Friedman, p. 30[/fn] The very point of being the ‘or else’ of society is that other options often should be explored first.” As Friedman has argued,

We need to do a better job of deciding whether any given situation ultimately justifies the use of force. Force is used not only to calm situations, but to obtain compliance. Compliance with what, though? Although we want people to comply with lawful demands, sometimes it may be better to walk away and rethink the approach entirely, which is not always the judgment if force and law are out front. Police come to expect compliance, but the commands of the police must be judicious, and the use of force must match the gravity of the situation.[fn]Friedman, p. 31[/fn]

This latter necessity — that the “commands of the police must be judicious, and the use of force must match the gravity of the situation” — is where the ethics team plays its role. There will be objections that ethicists do not know what the pressures and dangers of violent confrontation are; that the academic study of ethics does not translate into the reality of the street. These claims were, and probably still are, aimed at hospital ethics teams. However, ethicists who focus their efforts on articulating ethical rules before the situation at hand arrives will not only help police officers arrive at more just outcomes; these ethics teams will also relieve the officers of the trauma of making those decisions by themselves.

These are scary and trying times. For some, the times have been scary and trying for centuries. We need the fortitude of Nahshon to walk into the Sea. After all, God just said: “Why do you cry out to me? Speak to the Israelites, that they journey onward.”[fn]Bavli Sotah 36b[/fn] It is high time we journeyed onward.

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