A draft…for police? (Maybe.)

America is awash with proposals to reform the police.  But reform will not work without the right people serving in law enforcement, and therein lies the problem: the U.S. is in the midst of a critical shortage of competent police officers.  Here’s a possible solution: draft qualified persons, perhaps as part of a mandatory national service program, to bolster the sagging ranks of law enforcement. 

Let’s unpack this idea a bit.

The crisis

Law enforcement recruiting has been in trouble for years.  What was an eight-year trend in understaffing of police departments is now a full-blown crisis.  According to Forbes: 

“Many of the cities impacted by months of racial justice protests and policing reform efforts are now struggling with a historic departure of police officers, according to new data released by the departments, leaving some concerned about how they will protect their communities going forward.”

Even before the protests of last summer, “86 percent of police chiefs nationwide reported a shortage of sworn officers, with nearly half stating that the shortage had worsened over the past five years.”  

Applications are now at a “historic low.”  As one expert put it:

“Every action has a reaction. When you vilify every police officer for every bad police officer’s decision, [people] don’t want to take [the] job anymore,” [Pat]Colligan, head of New Jersey’s largest police union, said. “It’s been a very trying and difficult time to put on the badge every day.” 

“Colligan also said the “quality has really diminished in the last few years,” which could mean more tragic police confrontations in the future.”

Meanwhile, in 2020 the level of violent crime across the nation surged to historic highs, and shows no sign of letting up.  Solutions to this dramatic rise in crime are complex, but adequate police personnel resources are certainly part of the answer.

A draft may be the quickest and most efficient way to address under-representation in policing 

In matters of security, striving for diversity within the police force simply for the sake of appeasing current public scrutiny is problematic.  Rather, when approaching conversations about diversifying the police force, attention should be focused on the benefits that diversity can bring.

A recent study objectively shows that diversity may improve policing, particularly with respect to interactions with minorities.  Additionally, other studies show that women – who currently make up only 12% of police officers – may be exceptionally well-suited for police work.

Women bring strong skills to police work 

Gender diversity within the police force is a prime example of how diversity can ultimately enhance the effectiveness of the police force. This is demonstrated by studies which conclude that women disproportionately possess skillsets deemed to be valuable for officers. 

In a Washington Post op-ed last year Georgetown Law professor Rosa Brooks said “[d]ecades of research show female officers can handle hostile and violent suspects as well as their male counterparts.” 

Additionally, she asserts that women are better than men at key policing tasks:

“Female officers [are] less likely to believe aggression is more useful than courtesy, less likely to agree some people “can only be brought to reason the hard, physical way” and less likely to report their jobs had made them callous.”

“These attitudinal differences are reflected in behavior. Controlling for differences in assignments, studies show female officers are significantly less likely to use force than male officers, more likely to display empathy and more likely to de-escalate fraught encounters. One study, for instance, found female officers were 27 percent less likely than male officers to “exhibit extreme controlling behaviors such as threats, physical restraint, searches, and arrest” in their interactions with citizens.  Another concluded suspects arrested by female officers were less likely to be injured. “

Brooks is no ordinary law professor as she served four years as a reserve police officer in Washington, D.C., and authored a book about her experience, “Tangled Up in Blue: Policing The American City.” 

(It should be said, however, that while Brooks supports voluntary national service, she told me at the LENS Conference this past February that she does not support a mandatory draft for any purpose.)

A “selective” draft

Of course, not everyone would make a suitable police officer.  The same, however, is true with respect to the armed forces which has a number of screens to entry, even for its all-volunteer force.  In the context of the draft, the title of the Military Selective Service Act is intentional, that is, only some are “selected” by the government to serve.

Importantly, a draft would give the police the opportunity to screen and select highly-qualified and well-educated people from an expanded draft pool.

This could present new opportunities to facilitate reform efforts.  For example, drafted persons with advanced degrees in psychology, sociology, and law might be, if not armed patrol officers themselves, useful adjuncts to them in complex situations.

It also may be that more mature women and men would be the sort of people who could come into policing and rapidly make a difference. 

In fact, age and even physical challenges that disqualify many people for military service might be accomadated in a domestic law enforcement setting.

In any event, police personelists certainly could find candidates in a draft process who would make fine law enforcement officers, to include those who would probably never consider volunteering.  Yet like many who were drafted for military service, people may find they value and enjoy their law enforcement service, even if compelled.

Perhaps an analogy?  In a 2018 article about the revival of the military draft in Europe, the Washington Post reported that:

The Swedish military says that few recruits object to being drafted. And at Kungsangen, the base where the Swedish military trains most of its draftees, several soldiers agreed that being drafted felt like a positive step.

“It’s fun to have a purpose. School was just too relaxed for me. Now, I have a tight schedule, which is a welcome challenge,” said 19-year-old Sally Granditsky, formerly a student at a Stockholm design school. She conceded that she probably would never have joined the military without the draft — “I think I would have been too lazy to apply,” she said — but could now see herself staying and becoming an officer.

Isn’t it possible many Americans might have a similar epiphany about police service if they were obliged to give it a try? 

The law

Since the Supreme Court decided the Selective Draft Law Cases in 1918, it’s been well-settled that the government can conscript men for the armed forces. 

Additionally, the Court found the male-only draft constitutional in the 1980 case of Rostker v. Goldberg. In that case, the Court concluded that “registration provisions do not violate the Fifth Amendment. Congress acted well within its constitutional authority to raise and regulate armies and navies when it authorized the registration of men and not women.” 

The Court deferred to “Congress’ determination that any future draft would be characterized by a need for combat troops” and found that “men and women are simply not similarly situated for purposes of a draft” since women were excluded from combat at that time.  (I wrote about this case and the recent litigation about it: “Must Annie get her gun? Women, draft registration, and the Constitution?”).

Recently, the Supreme Court acted on that litigation by declining to hear the main case challenging the male-only draft registration based on post-Rostker removal of the bars to women serving in combat.  Several justices concurred with Justice Sotomayor’s statement that “at least for now, the Court’s longstanding deference to Congress on matters of national defense and military affairs cautions against granting review while Congress actively weighs the issue.” 

Thus, a key issue in using the draft to staff police forces might be whether or not the courts find that Congress’ accepted authority in national defense and military affairs extends to domestic security needs. 

There is a connection.  For the first century of its existence, the U.S. depended on a military body – the militia – for many law enforcement needs (see here).  Police forces, Time tells us, are “a relatively modern invention, sparked by changing notions of public order, driven in turn by economics and politics.”

Precedent?

Additionally, there appears to be precedent for compelling fully-civilian law enforcement duty.  David Kopel wrote in the Washington Post that:

“From Anglo-Saxon times until the present, a core power of the Sheriff has been the authority to summon posse comitatus–“the power of the county.” Like jury service, posse service is a mandatory duty of the citizen. When the Sheriff, in his nearly unlimited discretion, summons the posse, the citizen must respond. Traditionally, the group responsible for potentially serving in a posse was approximately the same as those responsible for serving in the militia–although the upper and lower age limits for the posse were wider, and the posse had fewer exemptions (e.g., certain professions) than did the militia.”

This past May in the New York Law Journal Steve Cohen examined the constitutionality not of compelled police service, per se, but rather mandatory national service.  He found a number of supportive cases, including Butler v. Perry, 240 U.S. 328, (1916).  In that case:

“[T]he court said that a Florida statute requiring able-bodied males to perform unpaid bridge and road work was allowed, and did not constitute “involuntary servitude” under the 13th Amendment.  The court further recognized that there are ‘duties which individuals owe to the state, such as services in the army, militia, on the jury, etc.'”

Cohen goes on to list other cases that, while not exactly on point, suggest the Constitution would sanction mandatory national service (see also here).  There doesn’t seem to be any particular reason that an otherwise constitutional statutory construct for mandatory national service could not include compelled service in a law enforcement capacity.

A State-centric solution? 

Of course, given the nature of police work, any draft for police service might best be left to the States (see here).  After all, principles of federalism generally consider most law enforcement to be a local matter.  In US v Bond, the Supreme Court noted that “our constitutional structure leaves local criminal activity primarily to the States” to address.

Nevertheless, it would still be difficult to facilitate this legal process.  However, with the appropriate legislation (and, perhaps, amendment of a given state’s constitution) I believe it would be possible.  Another alternative would be for the Federal government to conduct the draft, provide initial training, and assign the newly-minted officers to the supervision of State authorities for their required tour of duty. 

Concluding observations 

America’s domestic security has an extreme need.  It requires exceptional talent, especially in a time of reform and transition.  While ideally there would be sufficient volunteers for policing, this just doesn’t seem realistic.  Given all indications, this shortage – which is, as noted above, part of an eight-year trend – requires a long-term solution that a draft provides.

This is not to say that greater incentives for police service should not be considered, but absent evidence of effectiveness of inducements, a draft for police–perhaps as an adjunct to a larger national service program—may need to be enacted sooner rather than later.  (Even with respect to the military, current law authorizes registration only, not an actual draft, so legislation is essential.)

The good news is that this effort fits with a renewed interest in mandatory national service.  In an interesting May 1 op-ed in the New York Times (“Should Young Americans Be Required to Give a Year of Service?”), the Editorial Board observed:

“Asking young Americans for a year of their time for their country would be a powerful way to inculcate that call to service.  It would not be a panacea for America’s troubles, of course.  But a year in which barriers of race, class and income were breached, working in areas like under resourced schools, national parks or the military, where the fruits of service were real and beneficial, could help restore a measure of the community, commitment and hope that America cries out for.”

Are Americans ready for mandatory national service?  Although support for a military draft has historically been low, a 2017 Gallup poll showed nearly half (49%) favored mandatory national service.  And this year a poll commissioned by the New York Law Journal’s Steve Cohen found that “[f]ully 80% of young people ages 18-22 favored the mandatory national service program, and 88% of adults voted for approval as well.”

Obviously, the police draft program I am suggesting is not necessarily aimed exclusively at young people (indeed, people who are more life-seasoned could add a lot) and would need to be longer than a year, but the ancillary benefits the Times mentions could also apply to police service and similarly enhance America’s long term interests.

Moreover, giving a broader number of people a first-hand experience of the challenges (and opportunities) of policework is something that may inform perspectives in a way nothing else can.

And, really, aren’t we at a point where we ought to try bold new approaches to our toughest problems?

Still, remember what we like to say on Lawfire^®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!