Do the threats and pressures faced by today’s policing organizations justify departing from the principles that gird our democracy?
According to Luke William Hunt, the “toolkit” of American law enforcement too often sidesteps those principles in the interests of fighting terrorism or using informants to tackle criminal organizations.
Hunt, an assistant professor of Criminal Justice at Radford University and a former FBI Special Agent, argues in his new book, “The Retrieval Of Liberalism In Policing,” that police need to reconsider many of the practices that have now become standard if they want to restore trust, confidence and legitimacy. In a conversation with TCR, he explains how we arrived at this point, why a close understanding of our philosophical roots provides an answer to the harsh punishment ethic favored by politicians like former Attorney General Jeff Sessions, and why federal involvement is necessary to ensure policing organizations follow through with positive change.
[The following is a condensed and slightly edited version of the conversation.]
The Crime Report: What prompted you to write this book and why is its message important today?
Luke Hunt: My time as an FBI special agent certainly inspired a lot of the ideas. When I made the decision to leave the FBI and go into academia, there was no doubt that I would try to make sense of and grapple with the questions that were raised when I was in law enforcement. While my experience may not be representative of all law enforcement officers, I feel that in recent years norms have changed. We have deviated from some of the core principles of the liberal tradition, and liberalism as a political philosophy. Some of our practices, with respect to policing, have become illiberal because they have deviated from the core of that tradition.
So, the goal for me was to [explore] the basic tenets of a liberal tradition, and a constitutional democracy, and evaluate the extent to which we’ve deviated from those principles [in policing]. The overall project is about the scope of police power and how far we’ve moved from the appropriate limits of that power.
TCR: In your book you point out that, while some may point to September 11th as a catalyst for this deviation, this problem has been much longer in the making.
LH: I don’t think this shift happened on a single date or due to a single event. It’s taken generations. A lot of it has to do with technology and a lot has had to do with perceived threats. The threat of terrorism has certainly played a role. When you have perceived threats, coupled with enhancements in technology, our governments institutions are willing to reduce liberty at the price of perceived enhancements in security. We’re trying to have a perceived improvement of security at the expense of moving away from norms. Some of these things have been happening for a long time.
Obviously, the police have been using confidential informants, deceptive practices, and breaking the law to enforce the law for a long time. But they’ve ramped up, and it’s a very common tool in the toolkit today. Things like surveillance have been going on for a long time too, but technology has allowed the police and intelligence agencies to do so much more today.
TCR: When it comes to surveillance practices, how do we go about regulating law enforcement agencies discretion and power? What’s the limit?
LH: Different kinds of discretion are certainly necessary and are a justified part of the job. For example, routine law enforcement discretion to stop one person for speeding as opposed to another person. There’s also discretion about whom to surveill. That’s necessary because you can’t do everything and you have to make judgment calls and use your prerogative power in seeking justice. The limits of discretion are reached when we begin doing things that deviate from rule of law principles.
For example, we were justifiably worried about terrorism after 9/11. We enhanced our surveillance powers in national security cases through a broad reading of the Foreign Intelligence Surveillance Act. The administration, the executive branch, tried to authorize a type of domestic surveillance that you could get the green light to use even if you acted outside of the FISA parameters.
There was a process to engage in this kind of surveillance and this was an attempt to circumvent that. And it played out in this very dramatic fashion: Attorney General Ashcroft was sick in the hospital and President Bush’s officials tried to go to the hospital to get him to authorize this new surveillance procedure. Then-FBI Director Robert Mueller, and James Comey for the Department of Justice, had to race to the hospital to prevent this. When you’re trying to promote security at the expense of violating the law, that’s certainly the limit.
TCR: How does your book tackle the issue of violating the law to promote security?
LH: My real concern in the book is a little bit more philosophical, in the sense of trying to articulate the very broad constraints of surveillance power. I think there are certain cases when the government, and law enforcement agencies, should be able to deviate from the rule of law, But I think those are very rare and unique situations. If you go all the way back to the philosophers who have laid the foundations for our form of government, like John Locke, it’s a very narrow set of circumstances, limited to cases in which there’s a national emergency or there’s some sort of imminent threat to life.
Today, police are authorized to break the law all the time. Now, they have authorization to do that because you can sell drugs or illegal guns in order to enforce the law. But, is that promoting the rule of law? Is that really a justified use of that kind of operational activity?
TCR: Some in the criminal justice community would say that an academic’s point of view can’t be taken seriously,
LH: I’m very cognizant of the fact that if you have someone like me, an academic, writing on what the police should and shouldn’t do, it may not display a clear understanding of how difficult the job is. I have a tremendous amount of respect for law enforcement. I know it’s a hard job and that’s because I’ve done it. It helps to have been a prior law enforcement officer when you write from the “ivory tower.” But, beyond that, in the book itself, I do try to balance it out: the first half is more theory, the second half is more practical.
Regardless, I think it’s important to ask if we have deviated from the philosophical and moral principles that our form of government is based on. It may have implications for the real world and policing, and it may make things more difficult for police, but that doesn’t mean that it’s a bad question to ask and that theory and philosophy aren’t relevant. That’s part of who we are.
Policing and the Constitution
The [liberal] philosophers who inspired the founders of our country are relevant to who we are today. To suggest that we should forget about those principles—that political morality [is no longer important] because life is just really hard today and we have these really important problems—is a fallacy. We need to be consistent with those principles and who we are.
TCR: From a criminal justice standpoint, can we look to our history to decide what those principles should be?
LH: We really need to look at our roots, our history, and what the framers of the country and the drafters of the Constitution said. History and philosophical approaches are not mutually exclusive. That history was inspired by philosophy, by views that maybe aren’t manifested or articulated formally in the Constitution. You have to take a holistic perspective when you view historical practice and say there’s a bigger purpose and goal of what that history means and we should try to aim for that.
The Equal Protection Clause for a long time, seemed to permit “separate but equal” status for African Americans. Historically, that was the correct interpretation for a long time.But if you look at the basis of that concept, equality, and the spirit it entails philosophically, there’s a much broader and more accurate interpretation that promotes the ideal.
TCR: When it comes to policing in this country our philosophy has always been a punitive one. Does that philosophy of policing, and criminal justice in general, need to change in order to get closer to an ideal of equality?
LH: Historically there has been a very big push to focus on law and order when it comes to policing, and since 2017, when Jeff Sessions became attorney general, we’ve been very much law-and- order focused. What that does is promote a particular role of the police, the law enforcement role. Now, no one would doubt that law enforcement is a huge part of what it means to be a police officer and policing in general. Police enforce the law, they investigate crimes and perform arrests, and that’s, perhaps, the most important part.
But there are also all these other roles that police officers fulfill. For example, they are emergency operators: when someone has a wreck on the highway, they respond. That has nothing to do with law enforcement. Another role is a social enforcement role, there may be some sort of domestic issue or community problem that police have to respond to before a social worker can get there, one that doesn’t involve any kind of investigation or arrest.
We shouldn’t just focus on law and order, we should have a holistic view of what the police do. That’s when you get into ideas like community policing, procedural justice policing, and policing that promotes people’s dignity.
It’s not just about stopping crime, law and order, and arresting people. Police play a much broader role in the community and that role has to be promoted in a legitimate way that keeps the peace. It makes no sense to have a practice, like mass incarceration, that just exacerbates the problem, costs a lot of money, and makes people more likely to reoffend when they get out. It’s counter-intuitive and irrational.
TCR: Your book deals with the handling of informants and the involvement of civilians in criminal justice practices. How can policing organizations use these kinds of holistic approaches to improve what can be an already dangerous relationship?
LH: Some of these practices, not all, are just fundamentally inconsistent with the core principles and values of the liberal tradition. One thing to note is there are a lot of different kinds of informants. Some do it because they want to be patriotic, some do it for financial reasons. The cases that I’m focusing on are the more common cases: ones where the police leverage the informant. They have something on the informant, they have them jammed up for something they did, and they say if you agree to help us with this operation, do this thing for us, we will agree to consider telling the judge or prosecutor what you did and maybe they’ll help you with your case.
That sort of a scenario is very much like a contract; you have an offer, acceptance, and a bargain. Sometimes contracts are justified and good, and should be upheld, and sometimes they shouldn’t. I think many of these cases should not be justified or permissible because they are basically unconscionable, they’re unjust and unfair. The way that these bargains are entered into suggests that the informant’s consent is deficient. A lot of times an informant doesn’t have a real choice. If your option is basically go do this very dangerous thing that may put your life at risk or you’re going to jail for a long time, is that a real choice or is it borderline duress?
The other thing is knowledge: do they have an adequate understanding of what they’re getting into? Police officers are trained for undercover work, they know what the risks are. Maybe some informants are savvy and sophisticated, but some are not and they are put into a situation where they don’t really understand what they’re doing.
A very well known example is Rachel Hoffman. This young woman was sent to an operation to buy drugs and guns. She’d never done anything like this, and ended up getting shot with the gun she was sent to buy. So procedurally, was there actual consent to do this work? Was there a real choice? And was there adequate knowledge? If not, then you don’t really have true consent.
Policing and Consent
TCR: Can the police still be in the wrong even if there is legitimate consent?
LH: Even if you do have some kind of adequate consent to engage in this kind of bargain, it’s possible that just substantively the terms of the agreement are just unjustified given who we are as a society. Are these agreements an affront to the informant’s dignity? Another case I reference in the book is one where the police had leverage on a woman and got her to engage in oral sex as an informant with a target, spit the semen on a napkin, and bring it back as evidence in exchange for money. This was an act of prostitution that was upheld as justified evidence collection. And even if she consented and there’s no procedural problems, there’s just something substantively wrong with the operation given who we are and how we view people as moral agents with dignity.
Some of these agreements rise to what you would describe as punishment. These kinds of acts, the harm and risk, meet the criteria of what a clear case of punishment would be. However, it’s being administered by the police, in a sense outside the rule of law, because the police are allowing the informant to break these laws and are breaking these laws themselves. And it may not be justified. You might say these informants are being subject to a form of illegitimate punishment because this sort of act is not justified. We don’t usually subject people in our society to punishment unless it’s legitimate.
TCR: Given this potential for illegitimate and dangerous circumstances, what situations actually merit the use of informants?
LH: I think informants are a necessary tool, there’s a lot of different ways we use them. I think the primary focus for informants, in terms of policy, is that we should rely on informants for intelligence collection. They’re a great asset for gathering info and understanding the domain and territory that law enforcement are operating in. However, in these situations where you’re leveraging your power over an informant and you’re getting them to do these things with, basically, deficient consent or what might be an affront to a person’s dignity, those sorts of things are unjustified given our principles.The only cases in which something like that might be justified is if there’s some sort of imminent threat to life.
TCR: How do we improve our criminal justice system and turn the kind of philosophy your book talks about into policy, and do we need federal oversight to really bring change about?
LH: When you leave the realm of philosophy and look towards policy more, there are two components. The first that will be helpful is training. The diversity of departments, state, local, federal, we’re all over the place. To the extent that you can have a more comprehensive and consistent training regimen that highlights some of these points, that your role is not just to enforce the law and impose security.
You are a community police officer who is protecting citizens, serving the community, and you have a variety of roles that you have to promote. You need to view these people that you are serving as citizens with dignity who have these sorts of moral civil rights. That may seem obvious, but that needs to be central to our training. What’s happening in practice today is a lot of the training tells these new police officers that you are a warrior, you are going to battle every day, you need to not hesitate, not be weak in your use of force. You need to protect yourself because they are out to get you. That is a confused understanding of the police role. You are not a warrior. You are a civil servant who is promoting security in your community. You’re not doing battle in a military sense. To train like that is ineffective.
Should there be more federal oversight? One of the last things Attorney General Sessions did before he left office was draft a memo scaling back the federal oversight of departments, many of whom have had problems in the past. I think we should have that kind of federal oversight. Civil rights are federal rights that need to be protected by the Department of Justice.
I understand that it’s not going to be easy and it’s going to feel like the local community is being infringed upon by the big brother federal government, but that’s who we are. We’re a collective, national government, and if you have potential threats to civil rights that needs to be protected.
As we move forward in looking at next steps on addressing criminal justice, we need to promote oversight of local and state community’s departments that are having potential issues with these fundamental civil rights violations. If you have potential threats to civil rights, if you have evidence of that, there needs to be oversight at a federal level because it’s just that important.
Isidoro Rodriguez is a contributing writer for The Crime Report. He welcomes readers’ comments.