![]()
1
Introduction
On my first day of observation in a police detention facility in the American city that was one part of the comparative research on which this book is based, I asked what I thought would be a straightforward question, based on my experiences of collecting data in other countries.1 I asked first a sergeant and then a corporal who I encountered there, “What is the maximum permitted length of detention without charge for those detained by the police?” The sergeant told me that the maximum length of detention was 12 hours, which contrasted with what the corporal told me later, which was that the maximum length of detention was 72 hours. This was puzzling to me. How was it that staff could give such contrasting answers to a question which would have elicited a fairly standard response about legally permitted upper time limits in the other cities in the research? Perhaps one of these two initial research participants was mistaken. And thus, I posed the same question time and again during my participant observation and interviews with staff across all seven of the police detention facilities that I visited and spent time observing in this American city. As discussed in more detail in Chapter 6, responses to this question continued to vary wildly.
This seemingly minor matter about what police officers understood to be the length of detention and how they applied it in practice in this American city, compared to the other cities in the research, was the starting point for the present book. At the forefront of my mind was the question of why these differences arose and what the implications were for police-citizen relationships, particularly in jurisdictions with differing social, political and economic conditions. My initial hypothesis was that for police officers, in this American city, there was a lack of familiarity with legal rules and that this might be suggestive of a larger gulf between the law in the books and the law in practice in this American city, compared to the other cities in the research. Perhaps these ambiguities in what police officers understood about the length of detention were also rooted in greater discretionary decision-making for police officers, connected to the historical, social and political conditions in which discretion had developed in the US. In relation to the length of detention, this high degree of discretion was unlikely to be in the interests of detainees, many of whom would have no doubt been craving certainty about when they would be released.2 This prompted a further hypothesis, this time about the nature of the relationship between police powers and citizens’ rights. In the American city, which formed a part of the research, perhaps the police wielded a significantly higher degree of power than those they detained.3 Together, these are some of the issues animating the present book.
The police have a broad range of powers at their disposal including those used to stop, search, arrest, detain and interrogate citizens. These powers can therefore transform an innocent party into a suspect, then a defendant, and, if convicted of a criminal offence, an offender (McConville et al., 1991: 16–22), and then possibly even a prisoner or probationer and so on, with many of these labels outlasting the period in which they are ascribed. The powers that the police have at their disposal are also a part of the broader process of governance, in which the police are central players in the processes of crime control and social order maintenance. As the gateway to the criminal justice process, the police help to construct who is or is not criminal, as well as shaping who may or may not make claims to citizenship and to a valued place in society (Loader, 2016; Lerman and Weaver, 2014: 12–13; Waddington, 1999b: 30). Through their concept of “custodial citizenship,”4 for example, Lerman and Weaver (2014: 28) argue that police-citizen interactions result not just in exclusion from certain rights and benefits, but also the active construction of a different kind of citizenship, given that, for many people, interactions with the police are their only tangible experience of the state. Those in Lerman and Weaver’s study were entitled to register to vote and were formally equal before the law.
These roles of the police in shaping social order and conceptions of citizenship are especially potent, in part, because of the widespread existence of discretionary decision-making. It exists both, vertically, from the top to the bottom of the police organisation, and horizontally, across all areas of policing including with regard to the use of police powers (Bronitt and Stenning, 2011; Lipsky, 2010: 16, 18–23; Finnane, 1990: 218; Goldstein, 1960). Police discretion – which is described in more detail in Chapter 2 – refers to police officer perceptions of the quantity and nature of their authorised capacity to make choices about different courses of action or inaction, which are structured by and structuring of the legal and administrative rules, as well as by the wider social structures that surround their work. Police discretion enables the police to choose who enters the criminal justice process, as well as how, when, where, with whom, etc., albeit these decisions are hemmed in by legal, administrative and informal working rules associated with police cultures. Hence, it has long been noted that discretion enables but also undermines fairness and the equitable distribution of policing. It has been implicated, for example, in the over-policing of minority communities, both in the past and present and across different countries, including those in the present research, with catastrophic consequences for police-citizen relations and also for the over-representation of non-white citizens in the criminal justice process.5
As the foregoing discussion reveals, police work is intimately connected to social, political and economic conditions, which can further constrain police decision-making and behaviour. Of particular interest to this book is neoliberalism. This concept is defined as a series of interlinked ideas, including free-market fundamentalism and the idea that the state should play a more limited role in the lives of citizens, for example, through the rolling back of the welfare state, the deregulation of markets (e.g. for banks or stock markets) or through outsourcing (e.g. of police duties). In addition, and of particular importance to police discretion, is the growing emphasis placed on individualism and the personal responsibility of free-willed ‘rational’ social actors, who can be held responsible for perceived failings, including personal difficulties or allegations of lawbreaking. Moreover, neoliberalism can also be understood as involving an intensifying gaze and growing grip on certain citizens by the state, in particular, those engaged in the criminal justice process, namely, young minority ethnic men from deprived neighbourhoods (Lerman and Weaver, 2014: 181; O’Neill and Loftus, 2013).
The purpose of this book is to explore, in a comparative perspective, the relative influence of discretion, the law and other rule structures on police practices in police detention and, furthermore, to highlight what it reveals about the state’s relationships with its citizens in neoliberal democracies. It will also tentatively theorise why these variations arise, pointing to the political economy of these jurisdictions, in particular, the varying way that neoliberalism has manifested itself in police detention practices, as well as to the role of the law in regulating police practices and the history of the police institution. In so doing, the book makes an original contribution to the field of criminology and criminal justice, as accounts connecting neoliberalism to criminal justice practices have tended to focus on the prison – not the police – as the primary coercive agency (Reiner, 2017; Squires and Lea, 2013; Wacquant, 2009b: xix).
The empirical chapters of this book are informed by data collected in five cities in four jurisdictions in 2007–2009 in Australia, England, Ireland and the United States of America. Henceforth, the latter is referred to as the US. For reasons of confidentiality, these cities will not be explicitly named in the book. The research as a whole entailed 480 hours of observing and talking informally to staff and a selection of detainees across 18 detention facilities and 59 shifts. These observational data were supplemented by 71 semi-structured interviews with police officers, as well as other criminal justice practitioners and detainees in England. Further detail about the data collection and analysis, as well as its challenges, is set out in Appendix 1 (see also Skinns, forthcoming). However, it is important to note here that due to the small scale and to some extent exploratory nature of the data collection, these data cannot be seen as generalisable much beyond the cities in which they were collected. They nonetheless provide a valuable contribution to debates about police powers and citizens’ rights in a comparative context.
Why citizens’ rights?
Before summarising each of the chapters of the book, I wish to briefly reflect on why the book is about police powers and citizens’ rights, rather than police powers and suspects’ rights. The “standard narrative” on modern forms of citizenship is associated with T.H. Marshall’s classic essay first published in 1950 (Bellamy, 2008: 45). He conceptualised citizenship as including: civil rights, such as freedom of speech and the right to work and to justice;6 political rights, such as equal access to vote or to stand to be elected; and social rights, such as access to social security by the unemployed or ill and, more generally, the right to “live the life of a civilised being, according to the standards prevailing in society” (Marshall and Bottomore, 1992: 8). Marshall regarded these rights as once intertwined, for example, in feudal and medieval periods, but subsequently separated and thus able to develop at a different pace, with civil, political and social rights approximately emerging in the 18th, 19th and 20th centuries, respectively. For Marshall, by bestowing citizenship rights on all, citizenship was synonymous with the pursuit of equality, which he saw as having been eroded by the capitalist class system from the latter part of the 17th century (Marshall and Bottomore, 1992: 18).
Marshall’s conceptual framework was not just an intellectual exercise; aspects of it became institutionalised. In Britain, for example, the institutionalisation of social citizenship was partially evident in the use of Keynesian macroeconomic policies to stimulate the economy in times of recession and in the 1942 Beveridge Report, which proposed a new system of social rights to unemployment, disability, retirement income and healthcare services (Humpage, 2015: 21). The introduction of legal aid in England and Wales can also be seen as evidence of the institutionalisation of Marshallian civil rights. Sommerlad remarks, for example, that
However, under conditions of neoliberalism from the 1980s onwards, the inclusive and egalitarian form of citizenship that Marshall conceptualised and, indeed, advocated has become increasingly far removed from the lived realities of many citizens in Western democracies,7 such as the US, England, Ireland and to a lesser extent, Australia (see Chapter 3). Whole communities and families can find themselves socially excluded and part of an underclass living in ghettos of acute deprivation (Cavadino and Dignan, 2006a; Young, 1999: 19), with “policing by consent being most difficult to establish and sustain” in these kinds of communities (Loader and Mulcahy, 2006: 12). Though they do not mention it, these changing social, political and economic conditions are, in part, causative of the growing number of “custodial citizens” that Lerman and Weaver (2014: 55–56) note. These shifting conditions have also had a marked effect on the importance attached to active, not passive, social citizenship. Marshall recognised that citizenship entailed a set of duties – most notably to pay taxes and insurance contributions, as well as to work hard – not just a set of rights (Marshall and Bottomore, 1992: 45–46). Neoliberalism has placed growing expectations on citizens to actively, rationally and responsibly perform these duties, with access to social citizenship rights becoming increasingly seen as conditional on this (Humpage, 2015; Evers and Guillemard, 2012; Lister, 2012; Standford, 2012).8 This has had a polarising effect, further contributing to notions of deserving and undeserving citizens. This deserving/undeserving distinction is no longer based only on whether someone is welfare-dependent or has had contact with the criminal justice system or not, but also on whether or not they actively perform their duties as a citizen, such as by looking for work whilst they receive unemployment benefits (Humpage, 2015: 234–5).
For the purposes of the present book, it is important to recognise suspects as citizens. This is for two main reasons, which reflect the contradiction between the normative and empirical realities of citizenship in neoliberal democracies. Firstly, in principle, those detained by the police should continue to have the full range of civil rights, as well as access to a full range of political and social rights. This understanding of suspects as citizens humanises them and encourages them to be seen as a full and valued part of society irrespective of the allegations of lawbreaking. That is, it encourages us to look beyond reified binary categories of criminal / innocent party or good guy / bad guy. Secondly, the emphasis in the book on suspects as citizens helps to locate police custody within the political economy. As noted above, citizenship was originally conceived as synonymous with equality, albeit these intentions have been eroded, in part, by growing neoliberalism. These conditions make it more likely that police practices add to existing social inequalities and increase the grip of the state over criminal justice populations. To put it another way, recognising suspects as citizens enables an understanding of how “restrained the application of police authority is to those who enjoy [full] citizenship” (Waddington, 1999b: 30). Ultimately, my focus on citizens’, not suspects’, rights is about recognising the political nature of police work in unequal societies in which the ideals of citizenship are undermined by the realities of citizen contact with the police (Lerman and Weaver, 2014: 28).
The remainder of the book
Chapter 2 – Theorising police powers and citizens’ rights
In Chapter 2, I examine the power of the police, police discretion and accountability. Its main purpose is to examine the theorisation of police powers and citizens’ rights, thereby providing a conceptual framework for the chapters which follow. In terms of the power of the police, I differentiate legality and whether police officers abide by legal rules from styles of authority, that is, how the police employ their authority. I then set out the origins, influences on and arguments for the necessity of discretion in police wo...
