[1]In the midst of the tumult in Wisconsin during Governor Scott Walker’s tenure, there have been ongoing “John Doe” investigations that were highlighted in the National Review [2] last week that provoke big bipartisan questions about our nation’s police. What exactly do we want our modern police to look like?
These investigations were prompted by a left-leaning Milwaukee County Executive office working with the Milwaukee County District Attorney. At first blush, they are fairly unremarkable – one political group searching for dirt on another. But the investigations have a troubling method:
“[Milwaukee District Attorney] Chisholm failed to act promptly on the report, and when he did act, he refused to conduct a conventional criminal investigation but instead petitioned, in May 2010, to open a “John Doe” investigation, a proceeding under Wisconsin law that permits Wisconsin officials to conduct extensive investigations while keeping the target’s identity secret (hence the designation “John Doe”).
“John Doe investigations alter typical criminal procedure in two important ways: First, they remove grand juries from the investigative process, replacing the ordinary citizens of a grand jury with a supervising judge. Second, they can include strict secrecy requirements not just on the prosecution but also on the targets of the investigation. In practice, this means that, while the prosecution cannot make public comments about the investigation, it can take public actions indicating criminal suspicion (such as raiding businesses and homes in full view of the community) while preventing the targets of the raids from defending against or even discussing the prosecution’s claims.”
What followed was disturbing. The initial John Doe case turned into a multi-pronged attack which included numerous additions and a second wave that expanded the investigations beyond Walker people and to a broader set of conservatives. All approved by the same judge, all authorizing the collection of massive amounts of personal data. Most disturbingly, the NR piece chronicles multiple instances of intrusive police action in processing the John Doe cases. Police came into houses in the middle of the night, confiscated personal property, and told the families that, per the John Doe requirements, they couldn’t talk about the investigation with anyone.
These families had their lives turned upside down in the middle of the night and couldn’t tell anyone what was happening, which prompts the question – is this what we want from our police? Aggressively intruding on a family in the middle of the night (with a battering ram in hand in at least one instance)? Telling them they can’t talk about it?
Conservatives tend to defend the police, and for good reason. Police are our most local form of governmental force, they stand for law and order, and, ideally, they serve to protect and secure our lives, families, and property. And most of them do a fantastic job.
Unfortunately, that job has been changing in recent years. One important factor is the Department of Defense 1033 Program [3] that allows local police to reuse excess military equipment, particularly for drug and counter-terrorism efforts. Most of this equipment is unremarkable, but this program has provided local police with some pretty intense military weaponry, including grenade launchers and armored vehicles. A recent White House report [4] explained that “4% of the Pentagon’s output to police departments is military grade, including 92,442 small arms, 5,235 Humvees, 617 mine resistant vehicles and 616 aircraft.” The program’s motto is “From warfighter to crimefighter.”
That motto seems to be extending beyond the 1033 program. The warfighter and crimefighter are often one and the same. The Justice Department established a program to “[support] military veterans and the law enforcement agencies that hire them as our veterans seek to transition into careers as law enforcement officers.” We all appreciate the sacrifices our veterans make, but do we want to transition people directly from living on the battlefield to policing American towns and cities?
Most concerning are current police practices. SWAT tactics have taken a prominent place in police approaches to conflict. The ACLU put together a massive report on SWAT activity recently (click here to read it [5]), or read this piece [6] or some of the stories in this excerpt [7] from the recent book Rise of the Warrior Cop.
Or, if you don’t have time to dig into any of those, look at images like [8] these [9] and consider whether that’s what we want our police to look like today.
Some commentators, like Michaed Medved, object [10], pointing to our current crime rates as proof that the above developments are positive and necessary. (Violent crime is half what it was in 1991 [11].) Unfortunately, the drop in crime does not correlate with these police developments, much less prove causation. Crime was dropping dramatically six years before the 1033 program started sending the big guns to police. Additionally, there are large host of other factors [12] that contribute to a lower crime rate, including mass incarceration and the aging of America. Medved is right that most police “are the good guys,” but that doesn’t mean we should be giving the good guys this much power.
Questions of police power and jurisdiction are not matters of clear right and wrong or simplistic partisan commitments – they are broader questions of what we want our society to look like. Do we want our police to parallel our military in weapons and tactics? Do we want our warfighters to become our crimefighters? We have to weigh the potential benefits to police and society against the increased risks of police abuse and encroachment on our American liberties.
We are seeing an increase in our government’s overreach in other categories beyond the scope of this article, including drone surveillance and attacks [13], NSA surveillance [14], excessive police involvement in school problems [15], and even lemonade stand shut downs [16]. Is this the future we want?
Unless we decide the police must change course, they will continue down this road. They will amass greater weaponry and become more adept at SWAT tactics. Why wouldn’t they? Imagine yourself as an officer – would you say no to additional funds or tools that would help you to ensure safety for your men and women just because your escalated enforcement might be perceived as excessive? Power aggrandizes itself inevitably, and the federal money will continue to accelerate police power. There is no inherent incentive to reverse course.
This discussion isn’t simple, since the tension between freedom and security is ever present, so we need to step back and look at the current picture and the future we would like to see. Answers like “You should trust the police to do their job” or “It’s fine with me if it helps to protect the police” or “If you don’t do anything wrong, you don’t have anything to worry about” are all too simplistic. We have a duty to set expectations for our local police. We must decide: What do we want our police to look like and how involved do we want them to be in fixing social problems? How large is their purview and how strong their hand? We can’t write them a blank check or we’ll lose our liberties paying for it.