Excerpted From: Sunita Patel, Transinstitutional Policing, 137 Harvard Law Review 808 (January, 2024) (522 Footnotes) (Full Document)


SunitaPatel.jpegPolice are everywhere. For race-class subjugated communities, police and other carceral infrastructures have become permanent fixtures in the bureaucratic organizations of daily life, from public schools, emergency departments, and colleges to mass transit, public housing, social service offices, and private apartment buildings. Modern police do much more than respond to or investigate crime in these spaces. Police break up fights and counsel children in K-12 schools, serve as security for public hospitals, patrol public housing complexes for disturbances, and respond to clients in mental health distress. Administrators of formal institutions increasingly find it natural for police to solve these problems; after all, law enforcement performs similar functions in other spaces. Moreover, laws and policies have developed over time to encourage institutions to adopt internal policing, and often come with funding that propels policing as the de facto mode of handling a broad range of safety concerns.

This Article provides a “transinstitutional” approach for analyzing the ways policing operates across domains. The features of this approach are based on an examination of police located within K-12 schools, public emergency departments, veterans health care, public and low income housing, mass transit, and universities and colleges. The key contribution of this Article is mapping the transinstitutional intersections and patterns between policing (as its own institution) and other institutional locations, the street, and the home, while attending to the relationships between police and nonpolice personnel across institutional settings. Despite inhabiting realms that seem distinctive in their missions and legal structure, the police and other institutions are united in their commitment to providing services--such as care or education--to varying degrees, and yet together reproduce the logics of carcerality. And policing changes what it inhabits. The roles police play within formal institutions distort boundaries between policing and other public operations. In fact, they mediate access to social services, education, and care.

My framework connects several strands of policing scholarship. First, this Article generally recognizes an emerging body of what I am calling transinstitutional policing scholarship, which accounts for the overall linkages between policing and various institutions of mass incarceration. This literature recognizes that policing operates in multiple locations and sometimes overlapping contexts in conjunction with social structures and the carceral logics of public institutions. It magnifies how, for race-class subjugated persons, the transinstitutional nature of policing blurs the line between institutions providing care and those imposing control. Transinstitutional policing scholarship examines and contextualizes the rules, norms, and relationships between who is policed and how they are policed. Socio-legal scholars and sociologists also examine policing across institutions to understand contemporary welfare and penal regulation. This Article represents the contours and characteristics of transinstitutional policing scholarship.

Second, this Article is situated within the renewed attention to the intersections of carcerality, race, and the criminalization of poverty. Specifically, this Article joins scholarship examining how noncriminal (and even nonregulatory) agencies and institutions replicate carceral practices and create subordinating spaces. A decade or more of intensive study on misdemeanors and lower court practices has provided indelible insights into the ways crime and poverty merge under the rubric of law. Recent scholarship expands the frame from courts as the primary site of punishment to the ways formal institutions use noncriminal and sublegal charges as connections to policing and surveillance.

I note that looking at a more general picture risks oversimplification, incorrect generalizations, and the absence of contextual nuance. However, scholars have examined institutions and organizations in many ways, and the study of street-level bureaucracies requires a certain amount of telescoping to draw general conclusions. My hope is that this Article digests the insights of the rich and important work of others. This Article's approach benefits from the important thick descriptions, sociological accounts, narrative storytelling, and ethnography of other scholars and recognizes them to be key methodologies for understanding law and its impact. Ultimately, to address the harms of policing, we need both abstract and specific views--detailed analysis of each institution offers rich accounts from which others can develop broader theory and frameworks.

This Article builds on these different strands of scholarship to develop specific insights. The transinstitutional framework I describe in this Article allows us to observe how pervasively the police have come to operate in institutions. Likewise, formal institutions use a myriad of noncriminal, administrative, and sublegal avenues to police and surveil race-class subjugated communities. Across institutions, police aim to maintain a type of public order. This, in turn, enables further monitoring and potentially blurs the distinction between civil and criminal, creating more court involvement based on police interactions when a person accesses public services, education, or care.

Most importantly, taking a step back and looking across settings helps us answer the following questions from a transinstitutional vantage point: Do patterns arise when police operate within locations providing care, education, or public welfare? And if so, what are the patterns? This Article answers the first question in the affirmative, and provides a framework within which to view policing as part of dynamics that include both an institution's carceral logics and its racialized social system. The interweaving of policing and other domains is essential to examine because the problem is not solely police, but also that policing exploits the ways broader phenomena and institutions of care embed carcerality via personnel, laws, and policies. This Article further considers: Where did the transinstitutional design features described within originate? The hope is future work will then ask how can our understanding of transinstitutional policing shape how we transform, scale back, or eliminate the role police play in such settings.

A broader understanding of the ways institutions embed police and use them to amplify their own carceral logics is essential to anyone interested in police reform. When scholars and advocates focus on one site for analysis or policy reforms, they may lose sight of the importance of transinstitutional policing dynamics. Reforming one institution's harmful reliance on police may be like putting a finger in the hole of a dam--race-class subjugated community members traverse many institutions that subject them to surveillance and potential police interactions. A better understanding of patterns across organizational contexts also brings to light the challenges with removing police from public institutions and adopting alternative methods or personnel to address the root causes of the social problems. Today, typical reforms include shifting roles and resources to the very institutions I examine, despite their functioning within what sociologists call the “shadow carceral state.” The systems that hold the most popular alternatives to policing--such as health care or schools--are not only themselves embedded with police, but also carry their own carceral logics. Thus, when social workers or nurses take on the problem-solving or crisis management functions of police, they risk replicating police logics because their institutional homes are imbued with carceral logics.

Foregrounding policing transinstitutionally has several implications for the organizational context. For one, policymakers and administrators should reconsider the rationales behind placing so-called specialized police forces inside public institutions. While each distinct institutional bureaucracy wants to believe its police can be the exception, appreciation for the transinstitutional character of policing reveals the pitfalls of such thinking. I debunk a prevailing myth that bureaucratic administrators with sole or shared authority over specialized police can temper the excesses of policing: violence, racial disparities, and dignitary harms.

My framework also reveals another transinstitutional problem when institutions of care use police: police undermine the host institution's imprimatur of authority. When police exercise the full scope of their authority, they undermine the host institution's legitimacy, create distance and distrust, and erode its ability to serve the target constituency. Institutional police have failed to be more attentive to the needs of marginalized people despite training, agreements, values statements, policies, and law. Instead, the North Star of police remains management and regulation. Whether out of naivety, willful ignorance of the realities of policing, or something more nefarious, bureaucratic leaders seem to ignore the likely harmful and potentially deadly outcomes of facilitating police engagement with their constituents. When faced with the reality across institutional settings that this Article presents, the problems are more difficult to ignore.

This Article proceeds in four Parts. Part I provides an overview of what I am calling the transinstitutional approach. I describe a continuum of embedded policing, and explain why particular institutions are studied here.

Parts II and III provide six institutional design features supporting and facilitating the imbrication of police and policing logics for addressing safety. The first three--red flagging, street policing, and wellness checks-- show how policing the public relies upon police presence within formal institutions. The second three--networked information, bureaucratic conflict and cooperation, and vulnerable privacy--tie surveillance of the public to transinstitutional policing.

Part IV draws out the reasons policing operates so similarly in each location and other lessons learned. Ultimately, to transform institutions and reform police on the way to abolition, we must better understand policing across and between formal institutions. That is my project.

[. . .]

This Article shows how bureaucratic organizations use police to control and manage race-class subjugated individuals in far more ways than is typically recognized. Studying the dynamics of police within formal institutions one by one, and even in groups of systems, risks missing the true impact of policing on race-class subjugated communities and suggests each domain is exceptional. It leads to solutions in one context but misses how police or police-like personnel might increase problems in other settings. This Article shows the benefits of a transinstitutional perspective to identify and analyze cross-institutional patterns and features of policing within institutions of care, learning, and social welfare. This Article helps to better illuminate the full scope of embedded policing practices using a six-feature framework: red flagging, street policing, wellness checks, networked information, bureaucratic conflict and cooperation, and vulnerable privacy. I will take up other concerns in future projects: practically, what are institutions and advocates doing to disentangle policing from formal institutions; what has been the role of public sector unions in growing embedded policing; and how does the Fourth Amendment grant police similar authority regardless of where they are situated--in public, the home, or formal institutions.

Sunita Patel is an Assistant Professor of Law at the UCLA School of Law.