Discussion Paper 12

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©Minister of Supply and Services Canada 1992
Cat. No. JS62-77/1992
ISBN 0-662-58869-1X

Royal Canadian Mounted Police
External Review Committee

Chairman
Honourable René J. Marin, OMM, QC, LLD

Vice-Chairman
F. Jennifer Lynch

Members
Joanne McLeod, CM, QC
William Millar

Executive Director
Simon Coakeley

The Committee publishes a series of discussion papers to elicit public comment to assist the Committee in the formulation of recommendations pursuant to the Royal Canadian Mounted Police Act (1986). The views expressed in this paper are not necessarily the views of the Committee.

Comments are invited; they should be addressed to:

Simon Coakeley
Executive Director
RCMP External Review Committee
Postal Box 1159, Station "B"
Ottawa, Ontario
K1P 5R2

Fax: (613) 990-8969

Discussion Paper Series

Number 12: Reflection on Police Management Practice

Author
Clifford D. Shearing
Professor
Centre of Criminology
University of Toronto

with assistance from
Julia Powditch
Research Assistant
Centre of Criminology
University of Toronto

Also published:

Discussion paper 1
Suspensions - A Balanced View
Suspensions - Consultation Report

Discussion paper 2
Relocation - A Painless Process?
Relocation - Consultation Report

Discussion paper 3
Medical Discharge - A Police Perspective
Medical Discharge - Consultation Report

Discussion paper 4
Post-Complaint Management - The Impact of
Complaint Procedures on Police Discipline
Post-Complaint Management - Consultation Report

Discussion paper 5
Employee Assistance Programs - Philosophy, theory and practice
Employee Assistance Programs - Consultation Report

Discussion paper 6
Disciplinary Dismissal - A Police Perspective
Disciplinary Dismissal - Consultation Report

Discussion paper 7
Off-Duty Conduct - Consultation Report

Discussion paper 8
Sanctioning Police Misconduct - General Principles

Discussion paper 9
Occupational Health and Safety - An Employer Perspective

Discussion paper 10
Conflict of Interest

Foreword

Dr. Shearing and I have been associated professionally since 1973 when he became Director of Research to the Commission of Inquiry Relating to Public Complaints, Internal Discipline and Grievance Procedure within the Royal Canadian Mounted Police which I had the pleasure of chairing.

Both during the currency of that Commission and the years ensuing there were many animated discussions on the subject of police discipline and the value of remedial action; on occasion questions arose in our discussion about the value of discipline and whether or not it still had Its place in policing. In short, through our first professional association and in subsequent Commissions and Inquiries, the debate over police management and arguments favouring a remedial approach have always taken place against a background of knowledge that there were other perspectives which were more traditional and needed to be revisited.

It was agreed a few months ago that Dr. Shearing would launch a broader debate on the topic which we had so often discussed; while these reflections do not cast doubt on our original position, they do Invite the reader to reflect on the fact that even in remedial management there is a dimension of discipline necessary and which will likely never totally disappear from the police culture. That dimension is not without value.

Hon. René J. Marin
Chairman
RCMP External Review Committee

TABLE OF CONTENTS

For several decades, the military or quasi-military style of public police management, of which drill, punishment and blame are critical elements, has been under attack from critics inside and outside the police community. There have been two thrusts to this criticism. One is a legally inspired concern to ensure that the process by which blame is assessed and punishment is meted out be fair and just.¹ The other branch concerns the value of blame and punishment, and to a lesser extent drill, as a regulatory strategy. The first of these criticisms accepts the use of blame and punishment but seeks to ensure that it is applied in ways that comply with legal norms of due process. The second is more radical since it questions the regulatory strategies lying at the core of the traditional military style of management. This second line of criticism is the concern of this report.

The basis of this criticism is that the traditional style of police management, which accords a central place to blame and punishment and especially that directed at the rank-and-file level, is an inadequate way of controlling the activities of police officers and thus of providing effective and appropriate policing. The nub of the critics' argument is that the punitive style that has traditionally characterized police management should be replaced by a remedial focus that seeks to correct behaviour in ways that do not privilege punishment.

This argument is part of a more general critique of traditional control systems relying on punishment. Garland describes the shifts in the nature of penal practices resulting from this critique, in a comment on Foucault's work,² as follows:

These strategies do not simply punish troublesome cases, but develop a whole new method of sanctioning which Foucault calls "normalization".⁴

The argument advanced in support of a remedial approach within the police community, or what is sometimes called "preventative discipline"⁵ has been an instrumental one. It contends that because the corrective utility of punishment is at best very limited, it should not occupy a central place in the police managerial repertoire. This management should focus on strategies that train and correct rather than punish for punishment's sake. This argument has become the conventional wisdom of "progressive" police managers and it is increasingly difficult to find anyone who, publicly at least, is willing to argue the case for punishment in police management. Within this conception, punishment is an anachronistic managerial strategy that inappropriately injects a concern with retribution into the process.

Despite an apparent consensus around these reformist arguments, punishment remains an essential part of police management in Canada and elsewhere. There is an enormous gap between what is said and what is done; between rhetoric and practice.

This does not mean that corrective measures are not taken. Nor does it mean that changes recognizing remedial arguments have not been instituted. What it means is simply that punishment, and the institutions for administering it, remain central to police management.

For evidence of this one need look no further than the Royal Canadian Mounted Police Act.⁶ This legislation was developed largely in response to a Commission of Inquiry, the Marin Commission,⁷ that argued strongly against the weight given to punishment within the RCMP and proposed instead a remedial, non-punitive style of discipline. Nonetheless, it would seem that the new Act conceives of police management along essentially punitive lines.⁸

Why is there a gap between rhetoric and practice? Why has punishment retained such a firm hold despite the fact that in discussions of police management it is difficult to find anyone willing to support it? Why, despite the dominance at a conceptual, theoretical level, of arguments questioning the utility of punishment as a managerial strategy, has it remained significant at the level of practice?

The response of remedial reformers to these questions is typically that the continued presence of punishment is simply the result of the dead weight of tradition that keeps a concern for retribution inappropriately alive within the police community. That is, punishment remains central to police management because of the inertia of an "old guard" who believe that the old ways are best and who resist innovation simply because it is new. The traditional style is thus portrayed as a stubborn remnant of the past that should be shed in favour of more modern, scientifically valid forms of management.

By discrediting resistance to remedial reform as unthinking and unprogressive this response has done much to strengthen the legitimacy of the reformers' arguments. Within this view traditional police managers who believe in the use of a punitive style are denigrated as retributive "stick in the muds". While this has effectively silenced them in the debate over police management it has not stopped them from practising what they believe. That is, it has done little to change traditional management practices.

The sheer tenacity of punishment as a response to misconduct both within police organizations and the wider society raises doubts about the validity of this response. If punishment retains such a hold over police management, and continues to be used by new generations of police supervisors, perhaps there is more to it than the reformers acknowledge. That is, perhaps the consistent refusal of so many police managers to take the reformist advice requires us to look more critically at the latter's arguments. Perhaps police managers who continue to adopt a punitive style understand more about the process than reformers, and I include myself in this, have been willing to acknowledge. Perhaps in short, it is time to listen to these traditional police managers rather than silence them.

What this suggests is that it may be time to stop simply dismissing punishment as a dysfunctional anachronism and instead to examine it more closely to see what it accomplishes and why it is so steadfastly endorsed by so many police managers. It may be time to take seriously the unarticulated "practical knowledge"⁹ of traditional police managers as a source of intuitive or practical wisdom to be explicated rather than dismissed.¹⁰

I have elsewhere argued that the retributive features of punishment cannot simply be ignored, especially in the context of public complaints about the police.¹¹ The present report goes further than this by arguing that punishment has instrumental value that "progressive" police managers have been too quick to dismiss.

In arguing that more attention be paid to traditional managerial practices this report does not contend that a corrective approach should be abandoned. Rather, it argues that traditional strategies make a contribution to remedy. The point is that we need to be more sensitive to the utility of the traditional approach so that the experience it expresses can be related to, and integrated with, the very persuasive arguments advanced in favour of a remedial managerial style.

We must recognize that the tenacity of a punitive style of police management points to its strategic value. This value must be clearly understood if arguments in favour of remedy are to move from the level of rhetoric to practice. Once the managerial work accomplished by punishment has been understood it will be possible to consider whether arguments can be mustered in its defence and whether less punitive alternatives, more in keeping with contemporary sensibilities, are available.¹²

The next chapter identifies the control of police conduct as the critical task of police managers and establishes an analytical framework through which to consider it. Chapter III identifies the place of punishment and drill in traditional police discipline. This will be followed in Chapter IV by an analysis of the arguments for a remedial style of management. Finally, Chapter V identifies the value of a punitive style of police management and critiques the arguments of progressive managers for their failure to recognize this.

The central feature of police management is the shaping of police conduct. Police managers are required to ensure that those under their supervision act in ways that promote the objectives of the police organization. They are required to create a particular organizational order; in other words, to guarantee a particular way of doing things.¹³

The "way of doing things" that police managers in liberal democratic countries have sought to guarantee is impartial policing. This vision defined the "new police" in Britain in the early 19th century and it continues to shape our conception of appropriate state policing today. This image is one that has been particularly important to the RCMP. Indeed the idea of the "Mountie" pursuing "his man" without fear or favour is part of Canadian mythology. It is also an image central to the history of American policing generally as reformers have sought to free policing of what were viewed as sectarian influences and establish policing as a "professional" activity. Brown describes this as follows:

This idea, as I have just suggested, has guided the British police since their inception. This was made clear by Sir Robert Mark, one of the most outspoken Commissioners of the London Metropolitan Police, when he observed that the British police had been characterized by a

To argue that policing should be impartial and non partisan is not to argue that it can be nonpolitical in a more general sense of the term. State policing, including impartial policing, is "inherently and inescapably political".¹⁶ The police are expected to enforce the order established by a system of laws and these laws are, by virtue of the process of their creation, political. In enforcing the law and preserving the peace defined by law the police carry out the will of government, past and present, and governments are by their very nature, political entities reflecting and serving interests.¹⁷

As Reiner observes, the idea of the new British police established in the early 19th century was to create a professional body responsible to government which would wrest control of the police away from local communities. Thus, "[t]he new police signified a move away from a degree of popular control which had existed in some places over parish constables".¹⁸

The idea also represented a shift in the style of governance from one that was direct and personal to a more indirect and impersonal one.¹⁹ Miller describes this well in his comments on the orientation of the new British police:

Within the United States the concern motivating police reform, at the turn of the 20th century, was that partisan political influence would undermine the rule of law and the order of the state. Reformers argued that the police had become tools of partisan political interests, at the expense of the "public interest".

Fogelson reports on this argument as follows:

The notion of impartial policing requires the police to maintain the order of the State and not to subvert this by seeking to realize an order at odds with the lawful "peace", for personal or partisan interests. The fact that the law requires interpretation and that the police exercise discretion in determining the deployment of their resources to preserve the peace complicates matters. In other words, law alone is not a sufficient guide for police conduct.

Ensuring impartial policing, then, requires more than a willingness to submit to law but also a proper exercise of police discretion. For the appropriate exercise of discretion to occur, a particular consciousness out of which action arises is required. By "appropriate exercise", I mean one that review authorities like the courts will recognize as furthering the peace that the police are required to preserve.

Achieving the reformers' goal of a professional police force in furtherance of impartial policing involves a constant struggle in which police managers seek to create a coterie of officers willing and able to police impartially. This requires the creation of both the appropriate skills (capacity) and a readiness on the part of officers to have their actions guided by the standards of law and professional conduct.

The task of creating an impartial style of policing takes place under conditions that are difficult for at least two reasons. First, the nature of police work means that police officers are seldom under supervision.²² They work on their own away from direct control by the managers responsible for them.²³ As Brown notes, "[t]he important fact is that police administrators are really capable of controlling only the more trivial and mundane aspects of a patrolman's behavior".²⁴ This feature of distance from supervision has been reduced as communications technology has enhanced the ability of supervisors to contact officers in the field.²⁵ Nonetheless it remains the case that the majority of police officers still do not work under direct supervision.²⁶ Even today "policemen simply cannot be supervised all of the time".²⁷

Second, because the order the police are required to preserve is so consequential, they are frequently exhorted to act in ways that serve particular interests rather than preserve the peace more generally.²⁸ This may encompass both the pleading looks of a young motorist whose automobile insurance costs are likely to increase substantially, and perhaps prohibitively, if charged with a speeding offence, as well as drug dealers willing to pay substantial amounts of money to persuade the police to turn a blind eye to their activities. Brown describes these features of the police situation as follows:

Thus, the challenge for police managers is to create an organization of people who will police impartially in the face of attractive inducements to do otherwise in a situation of only indirect supervision.³⁰

Brown expresses this by arguing that the challenge is to create a police organization in which "the sole restraint upon the behavior of policemen derives from the force of administrative pressure to adhere to the law and organizational rules and procedures".³¹

MacNamara points out that together these two features of policing combine to create a challenge of major proportions:

The notion of the police as a professional body ruled by law and internal regulations and independent of political influence has been, and continues to be, a vision that guides images of State policing."³³ This notion is nicely expressed in the common-law idea of police independence, expressed most influentially by Lord Denning, in which the police are conceived of as responsible to the law alone.³⁴ In this vision police are seen as a body of technical experts who act as "detached public servants, standing above the community, utilizing [their] powers of coercion and expertise in the public interest".³⁵ Jefferson, writing in the British context, relates this to the idea of police independence as follows:

This notion of police officers who respect and operate under the rule of law has been and continues to be the reigning conception of policing.³⁷ police managers have therefore had to face the issue of how to give expression to this vision of a professional, disciplined body in their organizations. Wilson calls this the "bureaucracy problem":

In answering this question police supervisors have drawn upon managerial theories dealing with how best to select, and then shape, the people who will express this ideal. The concern has been with creating a force of "good men" who will act impartially.³⁹ In shaping such a body of people considerable attention has been given to the selection of candidates who have the potential to become professionals. As Vollmer, the renowned Chief of the Chicago Police, argued, "[w]hen we have reached the point where the best people in society are selected for police service there will be little confusion regarding the duties of members".⁴⁰ Once "good men" were selected, all that remained was the appropriate training and the proper direction. In commenting on the results of this approach in the United States, Brown has this to say:

Two phases in the development of the notion of police professionalism can be identified. These are based on the source of inspiration resorted to by police managers in their task of developing a form of internal discipline to promote a body of professional police officers who would then police impartially. The first of these sources, and the one considered in the next chapter, was the military.

In seeking a strategy to achieve this professionalism, managers turned to the example of the military and in particular to its conception of a command structure in which administrative authority cascaded from the top downwards.⁴² This was a structure in which drill⁴³ was a crucially important control strategy and in which deviation from the rules of professional conduct received a punitive response.⁴⁴ Indeed, as Bittner observes with respect to the United States:

This chapter outlines the strategies that police organizations developed during the early phase of police reform to solve the bureaucracy problem. This will establish a backdrop for the critique of the "traditional" approach.

Fogelson in his analysis of police reform in the United States notes that, in seeking an approach to professionalization, reformers opted for a military model.⁴⁶ This occurred after some discussion of the civilian or "corporate model that had dominated Progressive thinking about the schools and other urban institutions since the turn of the century". In taking this stance they followed the example of the British and the Canadians who turned instinctively to the British experience.⁴⁷ This "military analogy"⁴⁸ has had far-reaching implications. One implication has been support for the concept of independence, so central to the police conception of professionalism and the relationship between the police and politics.⁴⁹ Fogelson articulates this linkage as follows:

The military analogy also served to promote a system of discipline that would foster professional independence.⁵¹ Folgeson continues:

As I have already suggested, in Canada as in Britain, the struggle against local influence was not as vigorous in the 20th century because the idea of a professional bureaucratic police was already firmly entrenched. The British struggle had taken place much easier, in the course of 18th and 19th century debates over community control of the police. It was precisely these questions that were settled in the triumph of the idea of the "new police" in the 1829 Police Act.⁵³ The insulation of the police from political influence has long been an accepted feature of British and Canadian policing,⁵⁴ as has been an acceptance of a military-type organization.⁵⁵

The relevance of the military analogy to Canada was made clear by Sir John A. Macdonald who, in preparing plans for what was to become the North West Mounted Police (the forerunners of the Royal Canadian Mounted Police), wrote:

The vision of those reformers who promoted the idea of a professional police was of an independent body oriented to professional standards of conduct, providing a service to the community but not serving it. Brown sets out this idea as follows:

This conception recognizes police discretion but locates the appropriate source of this decision-making in guidelines expressing an ethic over and above the political conflicts existing within communities. Whether or not such an ethic can exist or whether this very notion reflects an "unrealistic Sociology"⁵⁸ that tries to legitimate partiality by pretending that an impartial position is possible, this is the claim put forward by reformers.⁵⁹

A critical feature of the "military bearing" that Macdonald sought to establish was the adoption of military discipline. Two features of military discipline were adopted as solutions to the "bureaucracy problem". The first was drill, the second was a system for administering punishment to persons judged to have acted inappropriately. The most visible manifestation of this system was the military court.

Although drill has declined in significances,⁶⁰ it continues to be an important part of recruit training and it is reinforced daily through routine practices such as the use of titles in addressing superiors, the wearing of uniforms and the daily "parade" before a sergeant that continues to initiate most police shifts.⁶¹

References to drill as part of the process of creating trained police officers are found regularly in the reports of the early Commissioners of the North West Mounted Police. Thus, Commissioner Herchmer in his Annual Report for 1888, commenting on the difficulty of controlling his members, refers to the use of drill as a source of discipline:

Police recruit training continues to rely to some extent on drill to mold civilians into police officers.⁶³ While recruit training is not as drill-oriented as military "boot camps", it has obvious resonances with them.⁶⁴ Brown makes this point when he writes:

Bradley et al. make a similar point when they write that:

Drill, and the concern with minor violations, to do with dress and punctuality, which are part of it, serve to create a particular way of being and a particular orientation to authority, that promotes compliance with a "professional" policing ethos.⁶⁷ Again, Brown is instructive:

Reiner points out that at the inception of the London Metropolitan Police, discipline was associated with a willingness to Comply.⁶⁹ This compliance was assessed in terms of an officer's acceptance of the discipline of drill:

Through drill and the enforcement of "petty" rules, police managers make use of those areas of police activity that they can directly supervise to gain indirect control over those they cannot.⁷¹

The second feature of discipline is the use of punishment. Typically Police Acts, under headings like "Disciplinary Proceedings", outline a system of both informal and formal responses to misconduct, defined as the breach of the legally-sanctioned rules that apply to police officers. Formal discipline typically involves a hearing, at what is often called a "service court", in which charges are laid and the accused officer is given an opportunity to defend these charges. Police Acts typically lay out a series of penalties that can be administered by such courts as well the standards of proof which are to apply.⁷² For example, section 61 of the Ontario Police Services Act, 1990⁷³ provides that:

The rules used to identify misconduct are taught to police officers as part of their basic and ongoing training. These rules, along with the law, set the parameters of police action.⁷⁴

Police scholars have long argued that the police occupational culture provides officers with a set of directions for action that conflicts with the formal rules to create competing "rule-worlds".⁷⁵ This point was made explicitly by the 1989 Fitzgerald Inquiry in Queensland, Australia, as the following comment by Finnane indicates:

This has led Brown to speak of police departments as having "an admixture of two distinct systems of internal control" and of a "bifurcated system of internal control".⁷⁷ In similar vein, Punch has written of the police as "the divided organization".⁷⁸

The directions of the police culture sometimes develop a quasi-formal status when they are tacitly supported by police management.⁸⁰ This tacit support points to an uneasy relationship of mutual recognition between the formal rules and the directions of the occupational culture.⁸¹ Brown describes the tension between these two sets of standards and the use of police discipline to lend weight to the formal rules within the context of police professionalism as follows:

He goes on to dispute the argument that the "institutional hypocrisy"⁸³ of tacit support for the occupational police culture and the disjuncture between the rhetoric and reality of the formal rules⁸⁴ means that the formal rules and police discipline do not restrain police officers. He writes:

Police managers generally share this view that internal police discipline is necessary to constrain the directions of the police culture as well as identify and root out "bad men". The latter includes those who either are bad by inclination or who have been seduced by the police culture to such an extent that they are no longer responsive to the requirements of professionalism.⁸⁶

There are three elements to the critique mounted by contemporary police reformers in response to the "Progressives" who opted for a military approach to police discipline. These have all focused on punishment rather than drill. The first element concerns punishment as retribution, the second deals with punishment as a basis for modifying behaviour, and the third with the tendency of punishment to draw attention to individual rather than to structural problems.

The argument advanced by the remedial reformers with respect to retribution has been that this should not be a concern of police managers. Whatever other activities management includes, it should not be concerned with retribution. The concern of supervisors should be exclusively with shaping behaviour and not with righting wrongs and passing moral judgments.⁸⁷ For these reformers punishment and its utility should be assessed from what Duff has called a "consequentialist" perspective:

In taking this position remedial reformers support and take for granted the shift in the history of punishment described by Foucault in which the purpose of control became "less to avenge the crime than to transform the criminal who stands behind it".⁸⁹

Once the issue of retribution has been dismissed the question requiring attention is how best to effect correction. It is in this context that the latter two elements noted above, namely the ineffectiveness of punishment and the importance of structural remedy, arise.

The debate over the value of punishment as a "mode of rational deterrence" is ancient. While the specifics have changed considerably, the contours of the debate have remained remarkably stable. A fundamental dichotomy in this debate is a disagreement over the relative efficacy of persuasive inducements as opposed to fear of punishment.

Machiavelli, writing in the 16th century on the nature of governance and strategies of control, argued that fear was the appropriate basis for ensuring compliance with the commands of an authority:

Traditional police managers tend to agree with Machiavelli. There have, however, always been voices expressing doubts about his conclusion. An early example, within the Canadian police community, is to be found in the Annual Report of 1892 by Superintendent Charles Constantine of the North West Mounted Police:

An argument put forward against the Machiavellian preference for fear of punishment as a source of control is that it frequently backfires and is therefore less reliable than a control strategy founded on "confidence". Bunyard develops this argument as follows:

It is now commonplace to hear the military approach criticized on these and similar grounds. Bittner, for example, in a very influential monograph on the police, argued that the military model was in fact counter-productive and hence quite wrongheaded.⁹³ He maintained that what was required was not "soldier-bureaucrats" but persons who could be "Induced" to act as "true" professionals who would develop a commitment to "purposeful efficiency" and "professional expertise".⁹⁴ The control of policing, he argued, should not depend on "military-bureaucratic regulation" but on a commitment to promoting professional skills.⁹⁵

This argument that police professionalism would be better served by abandoning the military model has been a recurring theme in police reform for the past two decades. It was taken up in Canada in 1976 by the Marin Commission which used the remarks of Constantine, referred to above, to question the RCMP's reliance on traditional discipline as an effective solution to the bureaucracy problem. The Commission wrote as follows:

The Commission went on to promote a more positive conception of discipline that reflects what Machiavelli had in mind when he spoke of the bond of love as a "moral tie":

In this remedial argument, drill is dismissed as a form of training because of its basis in regimentation. In this view, training is conceived, not in terms of the constitution of a mentality understood as particular habits of mind, but with a cognitive understanding of the procedures that should guide action. The dismissal of drill reflects a shift from learning through doing to learning through listening.

The Marin Commission emphasized that in proposing a remedial approach to RCMP managers it was recommending that corrective action should look beyond the punishment of individuals to structural issues. Thus:

Schuck summarizes this corrective approach when he writes that "a remedial system must fit the contour of the problem it seeks to ameliorate".⁹⁹

As these passages make clear, the Marin Commission report was a broadside against traditional police management, targeting both its tendency to locate problems at the individual rank-and-file level as well as its preference for using punishment as a response to the individual misconduct so identified. This critique, which has well-established roots within the corporate world,¹⁰⁰ has gathered considerable strength within the police community."¹⁰¹

The influence of the corporate experience is striking. It is virtually impossible to find a contemporary text on police management that does not advise of the necessity to examine the experience of "private enterprise". Reviews of corporate management practices and the theories associated with it are commonplace within the police management literature.¹⁰²

This interest in private enterprise has led advocates of the remedial approach back to the corporate analogy rejected by American police reformers in the first part of this century."¹⁰³ Marin expresses this renewed interest very clearly:

A recent example of the use of the corporate analogy is the recent RCMP External Review Committee discussion paper entitled "Sanctioning Police Misconduct - General Principles".¹⁰⁵ Redeker¹⁰⁶ is drawn on to argue that the traditional police approach to discipline with its system of progressive punishments "is constructed on an illogical premise: namely that an employee will get progressively better by being treated progressively worse".¹⁰⁷

As an alternative, it endorses Redeker's system of affirmative discipline.¹⁰⁸ Under this system progressive punishment is replaced by a practice in which the employee is continuously encouraged to declare an allegiance, or "moral tie", to the system of regulations for guiding action. Redeker develops this argument as follows:

This approach takes the position rejected by Machiavelli, namely, that a positive attachment to authority and regulation will be more effective in shaping action than fear of punishment. This affirmative approach emphasizes rewards as a means of committing police officers to the police organization and its regulations."¹¹⁰

The Honourable René J. Marin in an address to Canadian police managers in a workshop on "Management Under Financial Restraint" in 1983 draws upon the corporate analogy to advocate a reliance on rewards:

Although it endorses the remedial approach, the recent External Review Committee discussion paper echoes the Marin Commission in warning that a focus on rewards should not be used to draw attention to the

This focus on rewards and structural remedy has been reinforced by trends in the legal management-labour relations literature and practice. Adams, for example, in a legal analysis of "Grievance Arbitration of Discharge Cases" written about the same time as the Marin Commission, takes a position that disputes the wisdom of Machiavelli's conclusions:

Like the Marin Commission, Adams also insists that this concern with motivation through commitment must be complemented by a structural focus:

One of the strategies used to support arguments in favour of a shift in police management from a military to a corporate-inspired model has been to point out that the Japanese who "since 1948... [have] reported the lowest rates for conventional crime of any industrialized, non-communist nation" have "demilitarized" their police and embraced a corporate managerial ethos.¹¹⁵

The Japanese approach is seen as particularly important to policing because it does not lead to the development of a rank-and-file culture of resistance to management and professional rules. Archambeault and Fenwick argue that

Similarly, Bayley recognizes in the Japanese police an organizational unity that is strikingly different to the sense of alienation and cynicism experienced by the rank-and-file American police officer, as described by Westley¹¹⁷ and routinely noted by more recent observers:"¹¹⁸

In arguing that North American police organizations should follow the Japanese example of adopting a corporate rather than a military model, these commentators are responding to the argument that military structures encourage the development of a counterculture detrimental to the existence of a professional police force. In particular it is argued that the punitive features of police organizations operating from a military model promote an us/them division between the rank-and-file and management that is avoided by a managerial approach that would work together with the rank-and-file by means of cooperative strategies.¹²⁰

In elaborating on the implications of the Japanese "emphasis on organization-wide teamwork, strong managerial control balanced against 'shared decision-making' with employees, and a holistic humanistic approach toward employees" for police management, Archambeault and Fenwick describe just how it operates to undermine the occupational counterculture and the us/them distinction that has limited management's ability to implement the requirements for a professional police force:

These views are now the reigning orthodoxy within police circles. This is so much so that arguments in favour of a more traditional approach favouring the use of punishment are simply not available. There is at present no viable alternative position at the theoretical level. Machiavelli has been thoroughly discredited and no one seems either willing or able to develop an argument in favour of the use of punishment in police discipline. Stinchcombe sums up this orthodoxy with respect to professionalism as follows:

An essential feature of the remedial approach to discipline is a conception of professional police as persons whose actions are guided by and limited by rules.¹²³ Within this view, the role of police management is to:

1. ensure that police officers are committed to the rules of the police organization;¹²⁴
2. ensure that the rules provide clear and unambiguous directions; and
3. eliminate organizational obstacles that restrict officers' abilities to follow these rules."¹²⁵

This approach sets rules against local loyalties.¹²⁶

In taking this position on the importance of rules, advocates of the remedial approach argue that the military model is flawed both because it does not pay sufficient attention to structural impediments to conformity and because it does not provide for an effective bond between the rank-and-file members and the bureaucratic rules that are to guide their actions. Brown outlines the importance of this bond to rules as follows:

Underlying this focus on rules is a belief in science as a source of knowledge that can be used to professionalize and shape policing."¹²⁸ Those favouring a remedial approach argue that the military analogy is based on strategies that are less scientifically sound than those they advocate.

While discussion about policing is now very much dominated by the remedial agenda just outlined, the reality is quite different. The practice of police management continues to rely heavily on punishment. Rhetoric and practice are poles apart. This is not to say that the remedial rhetoric has not had an effect. It has. There is, for example, much more concern with structural remedy and there is evidence that corrective measures not reliant on punishment are being used. Yet, despite this, the face of discipline within the police institution has changed remarkably little. Discipline still tends to mean punishment¹²⁹ in just the way it did in the 1970s when the Marin Commission was developing its remedial critique. Police departments still operate as "punishment-centred-bureaucracies".¹³⁰

As Auten argues:

The military model continues to be extraordinarily influential¹³² even in the most innovative police departments. Thus, for example, Skolnick and Bayley characterize the six police departments they selected for their study of "police innovation" as conforming to the military model:

Das is even more emphatic:

Why? Why has punishment remained so important? The answer the remedial reformers give is that the police organization is "particulary intractable in terms of resistance to change"¹³⁵ and that police managers are a conservative lot who simply have stuck to their old ways.¹³⁶ The lack of change is argued to be a consequence of the weight of tradition. Bradley expresses this response as follows:

Reformers argue that what is required is more effort to compel police managers to change their unfortunate ways and to recognize that new approaches to management are required.

An alternative response to the question "Why?" would be to take issue with the adequacy of the theory instead of the quality of police management. This alternative suggests that we look more closely at, and seek to explicate, the implicit theory that drives traditional police managers and that shapes their view of punishment. Perhaps punishment has retained its central place in police management, in the face of the barrage of criticism that advocates of remedial management have mounted, because police managers recognize a value in it that reformers have overlooked. The next chapter will explore this alternative interpretation.

The preceding chapters have outlined the terms and contours of a contest that has been and is taking place within the police organization between two conceptions of control. At the outset it is important to note that not everything is at issue in this contest. For example, the importance of a structural analysis is taken for granted. The nub of the issue that separates police managers is their conception of how officers are to be motivated to act professionally.

This contest is part of a larger debate about forms of power more generally. This larger argument has been the subject of much scholarly attention. An important figure here is Foucault who has identified a shift from strategies of power based on spectacles of punishment to those based on pervasive surveillance.¹³⁸ In the older form, that Foucault saw as receding, spectacles of punishment were used to promote a fear-induced respect for force that enabled rulers, unable to engage in direct supervision of a populace, to secure compliance. In the newer form taken by power, embedded structures of control accomplish close but impersonal supervision and power is no longer centrally located within a society. Thus, power is both everywhere and no one's.

One way that some of Foucault's interpreters have presented this struggle between different forms of control and the visions of power that give rise to them is that between law on the one hand, with its focus on formal proceedings and punishment, and on the other hand, more embedded or informal means. Smart describes this distinction under the heading "The New and Old Contrivances of Power" as follows:

Each of these "contrivances" offers a different approach to the issue of how human action is to be shaped. Each recommends a different strategy for addressing what Wilson termed the "bureaucracy problem". Each of these strategies supposes a different approach to controlling police action.

Foucault's dichotomy provides a useful basis for understanding the debate taking place between police managers. Traditional management favours a strategy for shaping conduct in which control is exercised at a distance through what amounts to pageantry of one kind or another. Examples of this pageantry include the spectacle of law as it is played out through court-like structures ("service courts") or the symbolically charged features of drill in which social relations are captured and expressed in the pomp of parade ground flags and banners as well as symbolic gestures such as a salute or a "Yes Sir!"

The fact that in the police arena the "new contrivances of power", while they have certainly taken hold of the languages or discourse of police management, have not captured police practice is evidence of the failure of the surveillance-based forms of power to sweep away "older contrivances" in the way that Foucault's analysis would suggest. This resistance is not an isolated phenomenon. There is widespread evidence that spectacular forms of power based on pageantry have not disappeared.¹⁴⁰ Smart in critiquing Foucault's conception of power with respect to law as emblematic of the "old contrivances" argues that:

To point out that the continued presence of traditional managerial practices within the police community is an instance of wider features of contemporary society does not of course answer the "Why?" questions raised at the end of the last chapter. This requires an explication of the theory implicit in the practices of traditional managers. These suggest that traditional managers do see punishment primarily as a "mode of rational deterrence" as the "consequentialist account"¹⁴² holds. However, they exploit its symbolic features as a resource in establishing a professional consciousness based on a deep commitment to impartial policing as a style of action rather than a product of rule-following.

These managers share Commissioner Herchmer's belief that "the temptation to misbehave and shield whisky offenders" and the constant "danger of getting into trouble by exceeding their duties"¹⁴³ faced by officers will not be resisted by a rational bond to a set of bureaucratic rules but rather require a way of thinking and being that embraces impartiality. Implicit in this position is that, in an environment where supervision is indirect and often non-existent and where temptation to advance a partisan interest is ever-present, sole reliance on bureaucratic rules will not work.

In taking this view, they are proposing an approach to social control of the police that parallels that of the police culture itself. Here too we find a reliance on symbolic devices that find their expression in the endless series of anecdotes police officers share with each other, and not in a series of recipe-like rules.¹⁴⁴ In other words, traditional police managers maintain that if the police culture is to be resisted it must be contested on its own grounds.

Foucault has argued¹⁴⁵ that the source of the power of the "new contrivances" of control was their ability to create a particular consciousness out of which people would act, to make the "soul", which he conceived of as "the seat of the habits",¹⁴⁶ the "prison of the body". This ability to produce "compliant bodies" is, for Foucault, the very essence of power. In tracing shifts in power he traces the movement between two strategies for doing this; one that operates from a distance through spectacle and pageant, and one that operates in minute, intimate ways, that rely on pervasive surveillance and that embrocates power into every feature of social life. It is the value and efficacy of these strategies that are being debated within the police community. Both have the same aim, namely, the shaping of "the soul" of the rank-and-file officer. The quarrel is about the means.

Both the traditional and the remedial approaches to the bureaucracy problem have as a central feature the shaping of the motivations of rank-and-file members so that they will act in acceptable ways. Both are concerned with limiting the extent to which other sources of influence -- an oppositional subculture, partisan pressures and so on -- will interfere with the ability of managers to produce responses reflecting the vision of policing they are seeking to realize. In other words, both approaches are concerned with producing a professional police. What differentiates them is their understanding of what a properly motivated officer would look like. For the traditional manager it is someone who "naturally" feels and thinks as a "professional" police officer, whereas for the remedial reformer it is someone who follows closely a set of bureaucratic rules. At the heart of this debate are differing conceptions of what professionalism entails.

Foucault's vision of the new forms of disciplinary power is subtle and complicated and involves the embedding of restraint and supervision in the very fabric of social life. The approach of the remedial reformers fits within the general Foucauldian framework by seeking to structure the details of police officers' activity. Thus, for the remedial reformers, what professional policing requires is:

1. clear rules;
2. knowledge of the rules;
3. willingness to follow the rules;
4. capacity to do so; and finally
5. opportunities that will give this capacity expression.

This approach can be illustrated through the analogy of a computer and a computer programme. The actions of a computer are the product of instructions or rules that come from the programmes and that are loaded into memory. To get a computer to respond in the appropriate way one has to ensure that the right programme is loaded in, that there are no other programmes in memory to cause problems and that it has sufficient capacity available to run these programmes. When a computer does not do what is required one does not blame or punish it. Instead one takes a remedial approach that seeks to find the source of the problem and correct it. In the case of a computer doing word-processing, for example, one would check to see that the opportunities for performance are all in order by verifying that the printer is turned on and that the cable linking the computer to the printer is properly attached. If this did not solve the problem one might then look to see if there are other programmes running at the same time that are providing conflicting sets of directions. If everything was in order on these two counts one might then look to see if the programme was properly loaded into memory.

In resisting the remedial approach to police discipline traditional police managers are doing two things. They are resisting this computer-like conception of the "bureaucracy problem" by arguing that police officers are not computer-like entities but are rather human subjects constituted via symbolically charged forms that create identities out of which action flows. They resist the notion that rules can ever guide action completely and insist that action will always be the product of judgments made in concrete situations that cannot be submitted to rules.¹⁴⁷

What they seek to do by means of traditional strategies is to construct an identity or a way of being in the world that will internally regulate the police officer, in other words, that is "performative" in the sense that it promotes a style of action.¹⁴⁸ For them, rules are guides for assessing the appropriateness of previous police actions rather than a reliable basis for action itself.

For traditional managers the way to control the actions of police officers is by a process in which symbolically charged events are used to shape the consciousness of those who witness it. The control strategies that they see as effective are ones involving displays of authority which are used to shape subjects who will then not require close direction or supervision because they will have "become" good police officers.

Punishment and the quasi-legal rituals through which blame is assessed are, for traditional managers, critical vehicles for creating experiences both for the persons involved and for their peers. These dramas, like the dramas of criminal justice they echo, symbolically identify sources of authority and submission to authority.

Although these managers privilege punishment and the ceremonies associated with it as valuable strategies in creating an appropriate basis for judgment, these are not, as we have seen, the only rituals they employ and regard as important. For them, the business of shaping the recruit is accomplished through a variety of means that construct a particular mentality or subjectivity, that are in fact, to use Althusser's terminology, effective in "hailing" out a "subject".¹⁴⁹

In addition to the dramas of blame and punishment, the rituals of drill compel officers to act in ways that constitute particular forms of authority and the values associated with them, as well as the individuals who respect those authorities. Every salute and every form of address that includes a statement of rank, is charged with meaning and symbolism. Each "Yes Sir!" is an act and a symbol of submission to authority that seeks to "hail" out a particular sort of person.

As noted earlier there is virtually no analysis of the rituals of punishment and drill within the police professional literature. This absence has effectively denied traditional police managers a voice in which to express their understandings of these practices. To discover some insights about this issue one has to turn to other literatures, for example that on law as a "culture of argument"¹⁵⁰ and the literature focusing on the use of language to construct subjectivity.¹⁵¹

In the police culture one finds practices that create an identity or a subject who will reproduce a style of action "naturally" because they are simply expressing what they have become. Like traditional management strategies, the police culture does not maintain itself by constructing a recipe book of rules but operates through imagery. Entering into the street culture of rank-and-file officers is a form of conversion in which what is at stake is the very being or identity of the recruit. What recruits learn in and through their exposure to the police culture is how to see the social wood of the police and how to act in it. Here too the focus is on the recruit's inner being. What is being created is a person who will be a reliable partner, with whom one can face the uncertainty of the world that is to be policed, and who will cover for one in dealing with superiors.

In looking to the symbols of service court and the symbolic meanings of drill, police managers are engaged in a symbolic contest with the police culture over the state of mind that defines and produces the police identity.

The conclusion I draw from this is that the resistance to change on the part of traditional police managers is not simply a blind, thoughtless clinging to the known and familiar, nor is it aft attempt to embrace punishment for its own sake. Rather it is a statement that the business of management must be concerned with enabling managers to control rank-and-file members at a distance by shaping the inner being of the officers who will be making discretionary decisions. Seen from this perspective, the resistance of traditional managers to the remedial approach is a claim that policing conditions require a style of management that focuses on the identities of rank-and-file officers as "regulatory regimes" that can be used to control the exercise of discretion.

What this suggests is that there are no grounds for dismissing the traditional response to the bureaucracy problem. Yet, this is precisely what the advocates of a remedial approach have been inclined to do. Why.?

The nub of the reformers' concerns is not with the utility of punishment and drill but rather stems from their views about the ethical propriety of these strategies in today's world. The reason for the attack on the traditional police management strategies is not to be found in the criticism for lack of effectiveness featured in the police management literature itself but in what Garland calls the "voice of sensibility".¹⁵² Decisions about effectiveness are always, he argues

What lies behind the move away from punishment is just such a change of sensibility that increasingly views its use in the context of management-labour relations as inappropriate. In responding negatively to the military model, the reformers are rejecting both the use of punishment as a means and the employment of ritualistic displays of respect and submission because they jar contemporary sensibilities, not because they are ineffective.

This response has become a rejection, however, not simply of punishment but of the whole process of "hailing" out a subject, or of constituting a consciousness, through the use of symbols and meaning. That is, they have ignored the phenomenon of what Stenning et al.¹⁵⁴ have elsewhere termed "symbolic ordering", because they are offended by the particular symbols employed and the specific subjectivity that these symbols have been used to construct. The result is that they have thrown out the "good with the bad".

In rejecting the use of punishment and the construction of submissive subservient subjects through both spectacle and forms of drill, these reformers are reflecting important changes in Western political sensibilities and associated ethical judgments about the use of violence and the value of submissive relationships. In rejecting, along with this, the use of symbols and the meanings they create and express to shape conduct, they have neglected a very significant basis for promoting the compliance required for a police force that is "professional" in precisely their own sense of the term.

By taking this stance they have followed in the footsteps of Foucault, who argued that a shift from punishment to surveillance had occurred. However, he further argued, incorrectly,¹⁵⁵ that there had been a shift away from the use of spectacle as a form of control to more embedded strategies. Despite this inaccuracy, Foucault was alive to the way in which symbols operated through language and imagery to become a source of power in the contemporary world.¹⁵⁶ This is something that police reformers must come to recognize it they are to create a professional police whose discretion is exercised in ways that reflect the central values of our society. This, as the traditional police managers correctly recognize, will only take place though the constitution of habits of mind that express those values.

To achieve this, reformers need to pay much more attention to the literature that has developed on the relationship between "discourse", subjectivity and action and they should be much more sensitive to, and appreciative of, the fact that the traditional managers whose style and approach they denigrate in fact understand a great deal about this relationship.

Lest there be any misunderstanding about what is being advocated, I am not proposing an approach to police management that celebrates punishment and submission. On the contrary, I am arguing that if these military features of police management are to be brought in line with contemporary sensibilities then it is important that their rejection is not coupled with discarding the importance of symbols and meanings as a solution to the bureaucratic problem of achieving a professional force.

Looked at in this context, the lessons of the Japanese police seem somewhat different from those that police reformers tend to draw. What Bayley's insightful description of the Japanese police suggests is not a lack of concern with the symbolism of ceremony and drill but rather an abiding attention to it.¹⁵⁷ What is central to the Japanese police and their management style is not rule-following, as those who use them as evidence for the success of a professional rule-oriented police suggest. Rather what is crucial is the attention they give to the creation of a mentality and associated habits that reflect and express organizational objectives.

What is also striking about Japanese police management is the way in which it has integrated features of the traditional and more contemporary managerial approaches. That is, they have integrated the symbolic understandings of traditional managers with the instrumental insights of the remedial reformers. The lesson for North American police is that the challenge is not how to promote a move from a traditional to a remedial approach but to understand and integrate the strengths of both in ways that are consistent with, and reflect, contemporary sensibilities. Thus, in Japan, as Bayley notes, "[b]eing a policeman is not just a job", it is, as it used to be within the RCMP, "a way of life".¹⁵⁸ What this means is that:

This "way of life" is constantly being "hailed" by rituals and symbols of all kinds. Thus,

These activities would not, I suspect, have sounded all that forced and artificial to Commissioner Herchmer. The challenge for the modern police manager is to discover rituals and symbols that do not sound forced today. Anyone who knows anything about the power of the visual images of "popular culture" knows that this is possible. What modern police managers must learn to do is find rituals and symbols that are "as unremarkable as the air they breathe".

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