Can Brutality by the Police against the Citizens be considered Criminal?

If state crime is to be understood “as state organizational deviance involving the violation of human rights” (Green and Ward, 2004: 2); if police are to be perceived “as government” (Foucault, 1977: 213), and if violence against citizens is to be considered a violation of human rights; In light of this view, police violence against citizens should be regarded as criminal to a great extent. However, only 35 officers have been convicted of a crime in America, and only four have been convicted of murder, with an average prison sentence of 150.75 months (Stinson and Wentzlof, 2019). The number is alarming, as statistics show that around 1000 people are killed by the police in the USA every year (Sinyangwe, 2020). Police violence continues to be an unsettled and controversial matter, as thousands of people march against police brutality in the USA and even worldwide, with the messages to “defund the police” and rebuild public safety, following the police killing of George Floyd (Kirby, 2020).

Hence, the titular question: “To what extent can violence by the police against citizens be considered criminal” must be revised. This essay is primarily concerned with examining how and why, despite clear and concrete definitions of crime and human rights – the police, as a state agency, perpetually engage in deviant behaviour and practices that abuse legal norms. Some of which define universal human rights (Green and Ward, 2004: 2), but at the same time, rarely get prosecuted and convicted for their human rights violations.

This essay will first explain the relationship between state crime, human rights, policing, and police deviance regarding a few critical writers. Secondly, this essay will explain why and how police violence is possible through the lens of Waddington’s explanations of “invitational edge”. This essay will then analyze why and how police violence against citizens in the US can only be considered criminal to a minimal extent by emphasizing the role of political society’s Denialism and explaining that police violence occurs in a system that incites it and justifies it. Lastly, this essay will examine the role of institutional racism in defining what constitutes a crime.

It is necessary to define crime, and the way we understand what constitutes a crime in society over the decades is symbolic of the redefinitions of crime. The complexity of the concept is known as a result of states’ tendency to reconsider what constitutes criminality in their jurisdiction leading to constant redefinition. In light of this view, Green and Ward’s conceptualization of crime is perhaps the most helpful lens for analyzing state criminality. They conceptualize crime independently of the state by employing the concepts of “human rights” and “deviance” (Green and Ward, 2000:102). Human rights are defined as “the elements of freedom and well-being that human beings need to exert and develop their capacities for purposive action” (Green and Ward, 2000:110). Deviance applies to behaviours that break institutionalized policies and behaviours. Others use stigmatizing labels (Green and Ward, 2000:105).

Hence, Green and Ward (2000) theorize crime as behaviours that are both “objectively” illegitimate and “subjectively” deviant (Green and Ward, 2000:110). They postulate that adopting deviance and legitimacy provide a conceptually coherent definition of state crime. It is also essential to understand the concepts of policing, police deviance and their relationship to the state. Policing is the exercise of the authority of a state over the civil population (Waddington, 1999:30), based on the monopoly of legitimate coercion (Green and Ward 2004) and consent (Gramsci, 1929). Foucault (1977: 213) postulates “the police as government” and argues that the police should be perceived as an institution that embodies the state’s morality. Since the police is a coercive state apparatus (Althusser, 1968) and seen as custodians of state authority (Waddington, 1999), police deviance should be understood as state deviance. Police deviance could be recognized as “disregarding agency policy, rules, and regulations… and criminal law” (Albrecht, 2017:6). Albrecht’s police deviance typology illustrates that ‘violence’ can be categorized into two predominant varieties: “use of excessive force”, which is described as engaging in threatening actions, assault, battery and murder; and “abuse of authority”, which is conceptualized as violating the legal order of the police position. This misbehaviour includes illegal stops, searches and arrests (Albrecht, 2017: 30), all of which “occur under discernible organizational, socio-cultural, and political conditions” (Waddington, 1999:121). “Everyone has the right to life, liberty and security of person”, and excessive use of force by the police can result in people being deprived of their right to life (Amnesty.org, 2020). This indicates that violence against citizens, which includes excessive use of force and abuse of police authority, should be considered deviant, illegitimate and criminal. Furthermore, the active violation of human rights is implicit in the human-rights-based definitions of crime (Green and Ward, 2000: 112), which further suggests that police violence against citizens should be considered a state crime on the basis that it abuses their human rights.

Nevertheless, Weber (1918) identifies the state as the community with the legitimate right to use violence in a given territory. Hence, since the police is a state institution that explicitly operates based on the systematic and legitimate right to use force, violence has been normalized as an aspect of the role of the police (Waddington, 1999). The police have constantly acted in an abusive and unethical way (Albrecht, 2017). Waddington (1999) uses the concept of “invitational edge” to explain how policing is structurally conducive to illegality. Police deviance occurs due to the invitational edges of legal corruption. Despite the belief that “the law is law”, “procedural limits on police practice are neither clear nor determinate” (Waddington, 1999: 147). There’s an emphasis that the police are mere servants of the law, which habitually brings police officers to the invitation edges of legal negligence. This is because police cannot be done “according to the book”. After all, “the book” is too voluminous and incomplete. (Waddington, 1999: 148). For example, “police officers are duty-bound to use force where appropriate, but only where appropriate” (Waddington, 1999: 150).

But how is the level of “appropriateness” measured? Waddington foregrounds that the same measure of force could be considered appropriate in some instances and a criminal assault in others. Furthermore, the research highlighted a contrast in interpretations of police’s same aggressive behaviour, which shows that an act is deviant only if some social group perceives it as violating an applicable rule (Green and Ward, 2000).

Also, the “appropriateness” of the force is respectively contingent, as to whether or not it is illegitimate is not decided until after the fact. As a result, violence and what is meant by “excessive” use of force remain obscurity and imprecise (Waddington, 1999). Therefore, for the police, this indicates that the restrictions of their powers are always “unknown and unknowable” (Waddington, 1999:147), which pervades violent policing and deviance.

However, the “protect-life” principle posits that any force which involves a high likelihood of lethal consequences “may only be used for protecting against a threat of death or serious injury” (Amnesty.org.uk, 2015: 31). Yet, the police in the USA have shot 34 unarmed people to death this year (Statistica, 2020). Thus, under this law, the illegitimate character of this police violence provides clear moral and political justification for labelling it a crime (Waddington, 1999). Nevertheless, it is imperative to understand that police violence and deviance occur in a context that either supports it or incites it. In cases like Breonna Taylor’s where the legitimate right to use force by the police becomes illegitimate, deviant, and criminal, the prosecution authorities are reluctant to bring cases to the criminal court. In such cases, the juries are often disinclined to convict officers of criminal misconduct (Waddington, 1999) – clearly demonstrated in the case of George Floyd. Cohen (1993) emphasizes that when faced with knowledge of other’s suffering and pain resulting from the state’s human rights violations, the governmental reactions often take the form of “denial, avoidance, passivity, indifference, rationalization or collusion” (Cohen, 1993:104). Cohen situates the issues of responsibility and criminality as symbiotic, discussing a complex discourse of spiral of denials produced by political society, which creates exceptions to human rights (Cohen, 1993). For example, in the case of Breonna Taylor, there was a denial and circulation of misinformation. Steven Romines, attorney for Breonna Taylor’s boyfriend, claims the prosecutors in the case “cherry-picked” evidence (CNN, 2020) to rationalize the use of lethal force.

Similarly, in the case of George Floyd, justifications for his murder included an exploration of “resistance”. This resistance raises the question: what exactly is “resistance”, and what do people resist? It is because “resistance” can be seen by civil society as the right to exercise one’s human right to life.

Furthermore, “the use of force must stop once the objective has been achieved or is no longer achievable” (Amnesty.org.uk, 2015: 18). In light of this view, if the “objective” was to stop the resistance to arrest, the use of force was inappropriate, deviant and illegitimate. UN expert Nils Melzer stated that “when such force intentionally and purposefully inflicts pain or suffering on powerless individuals, who are unable to escape… it is always conclusively unlawful and may even amount to torture” (Ohchr.org, 2017). Moreover, “the right not to be tortured is stronger and more universal than the right to life” (Hajjar, 2013: 41). Thus, if the state is said to have the legitimate right to use violence in a given territory (Weber, 1918), the extent to which police violence can be considered a form of state crime can be based on the time to which this “violence” constitutes as “torture”. However, in these instances, the violence and police illegitimacy are described as a “tragic mistake” (Waddington, 1991: 194), “self-defence”, and an “unlawful killing”. Aside from highlighting the deliberate cognitive process of making and justifying this state’s violence against citizens, this emphasizes how the states cannot give any recourse to justice to victims of human rights violations.

Moreover, “unlawful killing” resembles “collateral damage”, which is an example of the militarisation of discourse. The adoption of the metaphor of combat into policing by political society legitimizes police violence. There’s also a growth of paramilitary-style policing made possible by a 1996 law that authorized the US Department of Defence to provide surplus equipment to law enforcement agencies (Amnesty.org, 2020). This has resulted in the police having equipment designed for military use to be deployed at protests. The First Amendment protects freedom of speech and the right to protest (The White House, 2020). Governments should ensure that everyone can experience the freedom of peaceful assembly, and it is the role of the police to facilitate peaceful protests. And if violence arises, police should ensure those who remain peaceful can continue protesting (Amnesty.org, 2020). However, the USA is a juridical state, and the police have a range of powers that violate protesters’ rights. Thus, this explains why nearly 1000 instances of police violence against citizens recorded in the US anti-racism protests (Thomas et al., 2020) were not criminalized and not formally sanctioned. According to both international and domestic law and their definitions of what constitutes criminality, police violence against citizens should be considered criminal to a great extent. Yet, because states rarely denounce themselves for breaking their laws, violence by the police is committed under a form of ‘legality’, as the sovereign decides a state of exception. These often include the “use of reasonable force in crime prevention” (Green and Ward, 2000: 103). This reiterates that violence by the police against citizens is marginally considered to be criminal because the legal limits of legitimate force are intrinsically vague (Green and Ward, 2000: 102).

When criminalizing police violence on the basis that it violates human rights, it is crucial to understand how “human rights are moral claims to justice… but they are also irreducibly political” (Nash, 2015: 5). Although all governments must incorporate international human rights law into their domestic legislation (Amnesty.org, 2020), in the USA, “state national sovereignty is not the source of human rights” (Hirsh, 2003: 3). Since the adoption of international legal dictates into domestic law is optional. Since the sovereign reserves the right to call the state of exception, this permits numerous ways in which human rights can be discarded or violated at will. Thus, the extent to which human rights are articulated into legal frames and inscribed into national law (Levy and Sznaider, 2006: 659) affects how police violence has been seen as a violation of human rights. Furthermore, the implementation and actualization of specific human rights depend on the legal, social, political, and economic opportunities available (Nash, 2015). This changes how human rights messages are disseminated (Cohen, 1993)

It is also vital to discuss how coercion and the threat of violence is a social relation that is reserved for “the dispossessed” (Green and Ward, 2004: 73). According to Mapping Police Violence, in 2019, black people were 24% of those killed by the police, despite making up only 13% of the population, which illustrates how the institutionalization of human rights idioms in the US does not apply to the dispossessed. Agamben (1998: 140) uses the concept of “homo sacer” to explain how one can be “eliminated without punishment”. In the USA, black and minoritized populations are perceived as “bodies” for enacting unchecked violence by the political society. Foucault positions racism as the pre-condition for exercising the right to kill, furthering that racism is “bound up with the workings of a State that is obliged to use race, the elimination of races and the purification of a race, to exercise its sovereign power” (Foucault, 1977: 258). This reinforces a sense of impunity among those police officers who use violence against such a dispossessed population. Likewise, this reiterates how “black life is proximate to death” (Sharpe, 2016:25) in America.

In the case of Breonna Taylor, the fact that Brett Hankinson has been charged, not with her death, but with “wanton endangerment” for firing into a neighbour’s apartment (bbc.co.uk, 2020), shows how black people’s current bodily ontologies, whereby they’re differentially framed and viewed only as “bodies”. Thus, violence can be formulated as merely occurring rather than being perpetrated on them. Butler posits that police violence against black people doesn’t qualify as violence and becomes justifiable, as the dispossessed and marginalized “do not qualify as lives… from the start” (Butler, 2004: 7). The narrative and justification for the use of “lethal violence in the name of self-defence are reserved” (Butler, 2004:9) for and used against the dispossessed (Green and Ward, 2004).

How does one protest George Floyd and condemn the violence perpetrated on him if it is not perceived as violence? How do we grieve Breonna Taylor when “grievability is a presupposition for the life that matters”? (Butler, 2009: 14). It all comes down to: “To what extent can violence by the police against citizens be considered criminal?” pivotal, as they foreground that due to the political society’s discriminatory ideologies of black people’s lives as disposable, and despite the necessary proclamation made by civil society organizations that Black Lives Matter, police violence against citizens, especially black citizens in the US can only be considered criminal to a minimal extent because institutional racism dictates what constitutes a crime.

In summation, the titular question: “To what extent can violence by the police against citizens be considered criminal?” has been thoroughly analyzed throughout this essay – concluding that according to the definitions of crime, police violence should be considered criminal to a great extent. However, due to the mechanisms implemented by the political society which enables and legitimizes this epistemic violence, police violence can only be (and is only) considered a crime to a minimal extent.

Focusing on a few critical writers, primarily Green and Ward, Waddington and Albrecht, this essay has presented a comprehensive overview of police brutality against citizens as a form of state crime and why it should be considered criminal. This essay has shown how police violence and deviance occur in a context that either assists or incites it, explaining why “successful prosecutions in almost all jurisdictions” are rare (Waddington, 1999:173). This essay has highlighted that police is a scandal-inclined occupation due to the existing opportunities for unlawful conduct. It is policing situate officers at the “invitational edges of corruption”, where the police repeatedly use “socially disapproved means of achieving socially desirable ends”, which often includes using violence and excessive force against citizens who “defy” them (Waddington, 1999:158). The essay discusses the role of racialization and discrimination in shaping the “defiant” and the “threat”. Thus, the exercise of violent policing is discriminatorily used against the dispossessed (Green + Ward, 2004), who are considered outside of the state’s “moral universe of obligation” and therefore legally killable. This essay has also shown that despite the social disapproval of violence used by the police against citizens, police violence and deviant practices are not legally disapproved – but seen as lawful routine policing (Waddington, 1999). This is reiterated by the processes of justification and legitimization leading to a lack of punishing for police violence. It’s indispensable to understand that states assert the power to determine what is legitimate and that “if states define what is criminal, a state can only be criminal on those rare occasions when it denounces itself for breaking its laws” (Green and Ward, 2004:1).

REFERENCES

Agamben, G. (1998). Homo Sacer: Sovereign Power and Bare Life. Stanford University Press. 120-180

Albrecht, J. F. (2017) Police Brutality, Misconduct, and Corruption: Criminological Explanations and Policy Implications, London: Springer. 1-47

Althusser, L (1968) On the Reproduction of Capitalism

Amnesty.org. (2020). What Is Police Brutality? [online] Available at: <https://www.amnesty.org/en/what-we-do/police-brutality/>

Amnesty.org.uk. (2015). Use of Force: Guidelines for implementation of the UN basic principles on the use of force and firearms by law enforcement officials

[online] Available at: <https://www.amnesty.org.uk/files/use_of_force.pdf> [Accessed 21 December 2020].

Butler, Judith (2009) Frames of War: When Is Life Grievable? London: Verso. Donohue, 1-10

CNN. (2020). Prosecutors Should Not Act “As Kings,” Says Lawyer For Breonna Taylor’s Boyfriend. [online]

Cohen, S. (1993) ‘Human Rights and crimes of the State: The Culture of Denial’, Australian and New Zealand Journal of Criminology, 26, 97-115.

Foucault. M. (1977) Discipline and Punish – Panopticism. 195-228

Gramsci, A. (1929-1935) Prison Notebooks

Green, P. and Ward, T. (2000) ‘State Crime, Human Rights and the Limits of Criminology‘, Social Justice, Vol. 27, No. 1, pp. 101-115.

Green, P. and Ward, T. (2004) ‘State Crime: Governments, Violence and Corruption. Pluto Press. 1-100

Weber, M. (1918). “Politics as a Vocation”.

Lavínia Dos Santos is a Sociology student at the University of Warwick. Her passion and interests include reading, theorising inequalities and advocating for black lives globally.

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