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The Institutional Design of Community Control


K. Sabeel Rahman (@ksabeelrahman) is Associate Professor of Law at Brooklyn Law School. 

Jocelyn Simonson (@j_simonson) is Professor at Brooklyn Law School.

we charge genocide
(via We Charge Genocide Chicago)

As the COVID19 pandemic and economic crises continue to ravage the country, it is increasingly clear that the virus is not just a public health challenge: it is also exposing deep systemic failures of governance, and disparities of political power. Black and brown Americans are the most likely to die from this virus, a reflection of the ways in which our economy and society concentrate risk, pollution, and disinvestment in racialized ways that literally cost lives. We can see the devastating effects of the status quo in the lives of “essential workers” women and Black and brown workers in particular, who were already in positions of terrifying economic insecurity and now find themselves on the frontlines of the pandemic response. These socioeconomic inequities are the product of underlying structures born from law and public policy that shape our economy and society. A big reason why these policies systemically disadvantage communities of color and working class people in general is that the communities most affected by them rarely have decisive, influential power over these underlying systems and the laws and policies that create them.

The dialectical relationship between structural inequalities and political power compounds this difficulty: multiple layers of democratic and structural exclusion reinforce each other, reproducing unequal, racialized systems of justice and of governance. For example, when people directly affected by the criminal legal system attempt to intervene in policy debates over criminal law and procedure, they find their calls muted because they are members of a population that has been systematically disenfranchised by the very systems of criminal law that they aim to reform. The antidemocratic nature of our legal systems reinforce structural inequality; the result is that increasing community participation does not, on its own, truly tackle these deeply embedded structural problems.

Recognizing this difficulty, social movements made up of people who tend to be excluded from governing power are rethinking the notion of community participation itself. In our recently posted paper, The Institutional Design of Community Control, forthcoming in the California Law Review next month, we lift up social movement visions of local governance and use them to push toward bigger questions and concrete lessons for how local governance in particular, and institutional design more broadly, can shift power. As these social movement actors diagnose, contesting and dismantling structural inequities require a dramatic and fundamental change in how we make major policy decisions. Changing the balance of power in these decisions is in turn a question of institutional design: how we build and operate the institutions of governance, particularly in administrative institutions often overlooked by electoral politics.

In our paper, we focus in on two examples of social movement visions of community control that exemplify the push to shift power in local governance—the push for community control in policing, and community control in local economic development. With policing, grassroots groups from Chicago to Oakland to Houston to Nashville have pushed for civilian commissions that transfer power from the police to the communities most affected by mass incarceration. In doing so, movement actors have focused on creating civilian oversight institutions with real power to create policing policy and discipline individual officers. The quest is not community policing, or even civilian review, but rather civilian control. Similarly, in battles over urban inequality, movement actors are beginning to experiment with measures that do more than seek policy outcomes—such as increased developer investments in local neighborhoods or mandated “local hiring” provisions—to develop governance arrangements such as strong community benefits agreements in which affected groups play a more direct role in controlling and monitoring development projects.

These institutional design proposals might not be new, or at least their novelty is not what interest us. The primary lesson, for us, is two-fold. First, when we look to the demands of actually-existing social movements, we see demands that are not just about policy changes but fundamentally about shifting power through creating new forms of governance that put frontline communities in control. Second, this vision of community control raises specific, important institutional design questions that lawyers and policymakers alike need to pay greater attention to. What institutions actually have the most control over the operations of a larger social or economic system? How can we redesign those institutions to ensure meaningful power for the most affected communities?

Not every form of community consultation actually shifts power. Often “participation” or “civic engagement” refers to thin forms of engagement: town halls, notice-and-comment procedures, community advisory meetings. In these mechanisms, community members have symbolic voice, but not power. By contrast, in our article, we identify three key dimensions that point to a more robust power-shifting approach to institutional design and community engagement: the nature of authority, the composition of the governing body, and the moment of authority.

The first of these dimensions is the nature of authority. The focus here is on the type of engagement that an institution envisions for affected communities. Too often, participatory institutions focus merely on soliciting community input. Genuine democracy demands institutions that go further, according actual decision-making power to frontline communities to reshape the policies and structures that undergird social and economic inequality. Movement actors understand this distinction between power and input to be crucial to what they term “community control” over policing. In Chicago, for example, the grassroots organization We Charge Genocide issued a report critiquing “community policing” in Chicago as a method of soliciting community input that in reality serves as a cover for oppressive police tactics. Instead of asking for better community policing, the Chicago Alliance Against Racist and Political Repression, Black Lives Matter-Chicago, and a number of other groups are together demanding a Civilian Police Accountability Council, an elected civilian council in which power and control over the leadership of the police department and all of the department’s rules and policies are given to an elected civilian commission independent of the police and the mayor. They are demanding governing power, rather than input into policies.

The second dimension of power-shifting in local institutional design is the composition of the governing body. This dimension looks directly at whether there are safeguards in place to ensure that traditionally powerless populations are represented on the governing body and whether those participants are truly independent, thus facilitating forms of contestation from below that might otherwise be ignored. So, for example, when the Coalition for Police Accountability—a group of membership-based grassroots organizations in Oakland—successfully pushed for a referendum to establish a new Civilian Police Commission, the movement actors wanted to ensure both independence from political elites and an ability for people with criminal records to serve on the new commission. By demanding space for people with criminal records on the new commission, activists required Oakland officials to take its history of disempowering incarcerated people and their families into account. They demanded a shift in the city’s understanding of who is qualified to serve and to lead.

The third dimension, the moment of authority, focuses on where in a decision-making process or social system the moment of power or decision-making is located. Often participatory institutions are situated “downstream”—at moments where those in power have already decided on policies and distributed resources so as to construct the larger system of inequality. Where that happens, even if community groups are accorded real power in a local policy decision, that power is relatively minor since the stakes of the decision are smaller. By contrast, power and participation that occurs “upstream” necessarily means much more influence for those engaged in the decision. Take the fights over urban planning for example. Communities might win greater control over a specific neighborhood development through a community benefit agreement (CBA) to demand greater attention to local needs and commitments to hire local workers. But the same communities would have more influence if the agreements covered all developments across the entire city or region. It is the latter, upstream form of city-wide CBA that grassroots organizations like Rise Together in Detroit are demanding, and sometimes winning.

Taken together, these three dimensions provide a way to conceptualize power-building with reference to specific institutional mechanisms and strategies, and they lay bare instances in which local institutions that claim to encourage participation from below may in fact foreclose real contestation and structural change.

Envisioning direct community control over these decisions—with real stakes and influence—may seem uncomfortable to some. But that discomfort has less to do with the supposed limits of democracy or the virtues of technocratic governance, and more to do with our deep-seated phobia of genuine democracy, particularly democracy that centers the power and voice of Black and brown communities. The movement visions of local governance we study may not provide all of the answers, but we believe that they help us begin to ask the right questions.