THE INJUSTICE OF UNDER-POLICING IN AMERICA

Abstract

Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States.2 Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives.3 And others have called for abolishing the police altogether.4 It has become common knowledge that the police do not solve serious crime, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially poor, Black people. This is the so-called paradox of under-protection and over-policing that has characterized American law enforcement since emancipation.5The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.”We defend this idea in much more detail in a forthcoming book titled What’s Wrong with Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system. Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we contribute can help illuminate what alternative answers to those questions might have to look like to be sound. In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.In the first part of this essay, we outline five comparative facts that contradict much of the prevailing way of thinking about what is distinctive about the American criminal legal system. In the second part, we draw out the normative implications of those facts and make the case for the First World Balance.In one sense, prisons and police are complements. It would be impossible to have many people in prison without the police, since, to put people in prison, the police usually have to apprehend and arrest them first. It would also be difficult to have police without prisons, since the threat of imprisonment is one of the typical sanctions wielded by police around the world. Given this, and given the exceptionally high incarceration rate in the United States, many people assume that the United States must also have an exceptionally high number of police officers.But that is not in fact the case. Figure 1 plots the police and incarceration rates of a sample of developed countries.6 The graph illustrates the chief fact that has animated the iterature on mass incarceration: America is a developed-world outlier in its use of incarceration. Yet it also illustrates the much less-well-known fact that America is not at all an outlier in its rate of policing. The United States has around 212 police officers for every 100,000 total residents, which ranks it in the forty-first percentile of today’s developed world.Yet this way of putting things in fact understates the magnitude of what has been misunderstood. Figure 1 denominates the scope of incarceration and policing by population. By that metric, the United States has an exceptionally high incarceration rate but a relatively normal number of police officers given the total size of its population. But we think it is more informative to denominate punishment and policing by the level of serious crime in a country. By doing so, it is possible to make inferences about cross-national differences in how countries manage serious crime.Here one runs into some difficulties. For several reasons, it is challenging to compare levels of serious crime across countries. Some countries criminalize acts that are perfectly legal in others. Countries define many criminal acts, such as “assault,” differently from one another.7 And countries vary widely in their ability to measure the incidence of criminal acts. The result is that many international patterns in reported data are obviously misleading. Data collected by the United Nations Office on Drug and Crime, for instance, suggest that the rate of violent crime is higher in Belgium, France, and Canada than in El Salvador, Russia, or Rwanda.8 Our solution to this problem is to measure the rate of serious crime by the rate of homicides.For the comparisons that anchor this piece—the United States to the developed world—this immediately raises a problem. Franklin Zimring and Gordon Hawkins have argued that “[r]ates of crime are not greatly different in the United States from those in other developed nations. … [O]ur extremely high rates of lethal violence are a … a distinct social problem.”9 If America has more lethal violence than Europe, but not more crime, the relatively high homicide rate in the United States would be a biased estimate of the rate of serious crime.We have two kinds of reasons for thinking that this is wrong and that the homicide rate is the right (or best) measure. First, given the reliability issues that bedevil the police or victim survey data on which Zimring and Hawkins and others rely, this is an area in which one has to take some cues from theory and other data. Consider, then, the following trilemma.Concentrated disadvantage is the root cause of most serious crime in developed societies.America has significantly more concentrated disadvantage than European countries.America has the same amount of serious crime as other developed countries.One of these three statements must be false. Criminological theory and existing social science evidence strongly support (1).10 And we think there is good evidence to support (2).11 The main theoretical reason to believe (3) is that the United States has far more guns per capita than European countries. But while firearm availability no doubt has some impact on the level of violence, we think the effect is likely to be small. A large effect would be difficult to square with other patterns across place, persons, and time. Consider, for example, that while the United States has ten times as many guns as El Salvador, the homicide rate there is roughly ten times higher than it is here.12 And that white, richer households in the United States are much more likely to report owning a gun than Black, poorer households.13 Given this and given the reasons to believe (1) and (2), we think (3) is most likely to be the false leg of this trilemma.The second reason—which does not depend on the first—is that homicide accounts for a large proportion of the total harm caused by crime. Insofar as standard measures of the crime rate give equal weight to each act criminalized by the state, they are conceptually meaningless. A society with a thousand petty larcenies and one murder has much less serious crime than a society with a thousand murders and one petty larceny, yet the raw crime rate would be the same in both. A meaningful measure thus has to account for the relative seriousness, or harmfulness, of each action.It is difficult to measure how harmful different kinds of crime are with any precision, but the cost-of-crime literature furnishes a first approximation. Economists estimate the social costs of different kinds of crime by asking people how much they would be willing to pay to reduce their odds of being a victim of various offenses. Summarizing this literature, Aaron Chalfin and Justin McCary estimated that the cost of a murder is around $7,000,000, the cost of an assault less than $40,000, the cost of a robbery around $13,000, and the cost of motor vehicle theft around $6,000.14 Thus, even though homicide is much less frequent than other crimes, it is judged so much more severe that it accounts for about seventy percent of the total costs of crime. This means that it is a much better estimate of the rate of serious harm than unweighted measures of the rate of crime. Figure 2 shows the same data, but this time denominated by homicide rather than by population.One immediately sees something different. Now, America’s outlying level of incarceration looks relatively ordinary. Its prisoner/homicide ratio is a little higher than the developed-world median, but not by much. No less stark is the fact that its police/homicide ratio now appears exceedingly low. That is, if denominated by the level of serious crime, America is not normally policed but rather under-policed. America has about one-ninth the number of police officers, per homicide, than does the median developed country.15One of the refrains of police reformers has been that American police are uniquely inefficient. Typically, when people argue that American people—and Black people, especially—have been under-protected and over-policed, they mean by this that the priorities of American police are skewed. Police focus too much on petty offenses and too little on serious crimes. This is the purpose of dwelling, for example, on the fact that only four percent of a typical police department’s time is devoted to handling violent crime.16And indeed, it is true that in comparative context the police in the United States do not solve many serious crimes. America’s clearance rate is the lowest of all comparable countries, as Figure 3 shows.17 The median developed country records around one homicide-related arrest per homicide that occurs. In the United States, the figure is 0.56.Yet this does not seem to be, as reformers imagine, because police in the United States are exceptionally focused on nonserious offenses. Consider one measure of police focus: the number of homicide arrests made per police officer. The clearance rate (homicide arrests/homicide) is the product of police focus (homicide arrests/police) and the police footprint (police/homicide). The conventional view of policing in the United States suggests that the problem with America’s clearance rate is that footprint is high, but focus is low. In fact, as Figure 3 suggests, the converse is true: footprint is low, but focus is high.One way of summarizing much of what we have shown so far is to observe that the United States seems to emphasize the severity of punishment over the certainty of sanction. The exceedingly high prison/police ratio and the low level of police per homicide together suggest that the United States relies on long sentences rather than the sanction of arrest to control crime. One way to estimate certainty and severity more directly is to decompose the prisoner/homicide ratio into the ratio of arrests to homicide (estimating certainty) and the ratio of prisoners to arrests (estimating severity). Figure 4 plots these two ratios across the developed world. The result supports our judgment: the United States has relatively low levels of certainty but relatively high levels of severity.One advantage of using homicides, arrests, and prisoners to measure these two concepts is that we can say something about how certainty and severity are distributed within the United States. As Figure 4 also shows, while all Americans suffer from an exceptional balance of certainty and severity, it is Black people in the United States who are especially subject to it.American police killed around 1,800 people in 2019. In the rest of the developed world, the average number of police killings is around 5 per year; the median is just 2. It seems intuitive that to reduce the level of police violence, we must reduce the footprint of the police. Yet cross-country comparisons suggest the opposite conclusion. As Figure 5 shows, there is a striking and negative cross-national correlation between the rate at which police kill civilians and the number of police officers per homicide.Countries with large numbers of police per homicide are countries in which police are much less likely to kill civilians, as compared to countries with fewer police per homicide. The countries of the developed world cluster on the bottom right of this graph (high police/homicide, low levels of police violence), while the countries of the developing world cluster toward the top left. The exception is the United States.To be clear, a negative correlation is not proof that lower levels of police/homicide cause the police to be more violent. Several possible confounders might explain the coincidence of high levels of police killing and homicide (e.g., inequality). It is even conceivable that the relationship could run in the reverse direction (high levels of police killing cause low public demand for policing). Because police killing is rare and our data are poor, causal inference is challenging.But there are some theoretical reasons to believe that this correlation is in fact causal. When violence overwhelms police resources, police make contact with only a small fraction of those who commit it. Under these circumstances, the civil treatment of a small fraction of offenders will have a negligible deterrent effect. Indeed, the American combination of small police footprint and brutality is reminiscent of the early modern state. As the opening pages of Foucault’s Discipline and Punish describe, when the infrastructural capacity of the state is low, exemplary but rare shows of spectacular force can be the most effective way to induce compliance with the law.18In addition, in societies where police resources struggle to keep pace with rates of interpersonal violence and private citizens are therefore more likely to arm themselves, police officers are more likely to behave brutally out of regard for their own interests. A severe sentencing regime such as ours could well exacerbate this dynamic since, under such a regime, there are stronger incentives for suspects to take extreme measures to evade apprehension and arrest. Thus, relying on severe and lengthy sentencing, rather than policing, to deter crime could make the job of policing more dangerous. And this might in turn make interactions with the police even more dangerous—for civilians.Of course, these inferences are speculative. Further empirical research is needed to test them. But we think the negative cross-national correlation between police killings and the number of police officers per homicide, along with the theoretical reasons to believe those correlations might be causal, should serve as a warning sign. It is not at all clear that reducing the number of police officers on the street would reduce the pervasiveness of police violence and abuse. And it suggests to us, again, that the obstacles to police reform run deep. Reformers often argue that police officers should be trained as “guardians” rather than “warriors.”19 But the training protocols that instill and entrench the warrior mindset may just be symptoms of under-policing.The United States is ridden with much more serious crime than other comparably wealthy societies. It responds to this exceptionally high level of serious crime with an exceptional combination of relatively small police forces and comparatively long sentences. And, tellingly, this regime reaches its apogee in the way it treats most disadvantaged people. What is to be done?The comparative observations we have made above suggest an obvious hypothesis. Perhaps the United States, like the rest of the developed world, ought to emphasize policing and penal certainty rather than incarceration and penal severity.20 Perhaps the United States ought to shift resources from incarceration to policing until the balance between the two looks more like the balance in the rest of the developed world. The implications of such a move—which we call the First World Balance—would be dramatic. The United States today has almost three times as many prisoners as police officers. If it raised no revenue but simply used the money saved by cutting prison populations to hire police officers until the ratio was the same as the ratio in the developed world (about 3.4 times as many police officers as prisoners), the new United States would have about 370,000 prisoners and 1.1 million police officers. That is, the First World Balance, if implemented in the United States, would be a society with about 1.9 million fewer prisoners and almost half a million more police officers.21 As we note later, this new United States would not be a dystopian police state. Moving to the First World Balance would in fact align the rate of policing in the United States with the rest of the developed world.But, of course, to note that moving to the First World Balance would align the United States with other countries is not to have shown that this would be a good thing. One cannot reason to normative policy conclusions from comparative empirical observations alone. To make these arguments, one has to connect fact to value. Would the First World Balance be justified?To understand our answer, it will be helpful to note three points about our approach.First, it was due to our shared interest in answering questions like this one that the two of us began to work together. Sociologists write about normatively laden questions but are taught to refrain from considering the normative implications of their arguments. It is no surprise that many of them do anyway, since it is those implications that give their vocation meaning. But social scientists’ lack of training in moral and political philosophy means that these conclusions are too often founded on ideology or intuition rather than rigorous normative argument. Some philosophers are interested in applying moral and political theory to puzzles that bear on real-world problems. But a lack of social scientific training leads many of them to seek answers to these questions (or versions of those questions) that do not require empirical inputs. Thus, our aim is to combine empirical evidence and social theory with explicit normative argument.Second, where possible, we strive to be as ecumenical as possible. In general, we do not attempt to identify the correct theory of interpersonal morality or political justice (or the correct theory of “what causes crime”) before drawing out the specific implications of just that theory. Instead, we consider the implications of a wide range of frameworks. In general, we find that first-order disagreements do not have dramatic implications for policy, which suggests that wringing our hands about these first-order issues may not always be worth the energy it consumes. We think that the combination of empirical and normative claims one would have to endorse to reject our proposal are incongruent—they represent various mixtures of ideas that effectively nobody accepts.Finally, our case for the First World Balance should be understood as our answer to a narrowly specified question about how the United States ought to apportion a fixed pool of penal spending. Many readers will wonder, understandably, whether we stack the deck in our favor by posing the question this narrowly. Why a fixed pool of resources? And why force a choice between prisons and police, when various kinds of social or non-penal alternatives are superior to both? We say more about why we specify the question in this way in our forthcoming book What’s Wrong with Mass Incarceration, but some explanation is in order here.We think that in the long run, a significant expansion of social policy would reduce crime by addressing its root causes and in turn reduce the need and demand for both policing and imprisonment. In other work, we argue that any coherent conception of distributive justice or economic efficiency entails that the United States should expand social policy. But a significant expansion of social policy requires significant redistribution from rich to poor. Redistribution of this magnitude would require the poor to wield some kind of leverage over the rich.22 Given the collapse of the American labor movement and the electoral fracturing of the American working class, we doubt we will see anything like this soon. Our aim in this essay is to say something useful about what should be done in the nonideal world in which we live—not just in the ideal world in which we would like to live. To say something about that question, we limit ourselves to options that are revenue-neutral.But why consider only prisons and police? Why couldn’t the government redistribute the existing pool of money from prisons and police to social policy, just as many reformers have demanded?23 As we argue in What’s Wrong with Mass Incarceration, this is because social policy is bedeviled by what we call the efficiency-feasibility paradox. To address the root causes of crime would be to meaningfully change the opportunity structure for the most disadvantaged people in America. To do this by expanding untargeted, universal social programs would require significant resources, since the vast majority of beneficiaries are not America’s most disadvantaged people. Because penal spending is hyper-targeted in a way that social spending is not, it costs about $300 billion a year to run the developed world’s most extensive penal state but something like $3 trillion to run its most anemic welfare state.24Now, there is good evidence that social programs that are hyper-targeted at the truly disadvantaged—particularly early childhood interventions and high-quality preschool programs—can be efficient at reducing crime.25 But the same thing that makes these hyper-targeted social programs efficient also makes it politically infeasible for governments to fund them at scale. The more targeted the beneficiaries, the more certain we can be that introducing these programs will provoke the resentment of the near-poor and middle-class. Hence, the efficiency-feasibility paradox: untargeted social policy is politically feasible but inefficient for crime control, while hyper-targeted social policy can be efficient but is infeasible.So, it is not feasible to address the root causes of crime with revenue-neutral changes to public policy. Yet some might argue that we should divest from policing and incarceration even if this would result in more crime.26 Harsh policing and concentrated imprisonment impose deep psychological, symbolic, political, and economic burdens on disadvantaged communities, rather than merely imposing physical injuries on individuals. Concentrated incarceration in disadvantaged neighborhoods can weaken informal social controls, sow distrust in communities, undermine civic organization, and depress political participation.27 Abusive and omnipresent policing, similarly, can entrench racial residential segregation and sow “legal cynicism.”28 And arrest records can sometimes be a debilitating disadvantage in the labor and rental housing markets, despite the fact that many of those who are arrested ultimately have their charges dismissed.29 These burdens are all disproportionately borne by the disadvantaged.Yet the issue with citing the many negative consequences of incarceration and policing to sanction a rise in crime is simple: serious crime has those very same consequences. Rampant crime can suppress social mobility and exacerbate poverty and concentrated disadvantage at the community level.30 Living in a violent neighborhood reduces people’s incentives to do things that are important for upward mobility, social cohesion, civic organization, and physical health.31 Neighborhood violence can be traumatizing and stressful, causing lack of sleep and impeding children’s cognitive development, attention, and impulse control.32 Businesses are wary of investing in neighborhoods where crime is rife, leaving residents without access to basic retail services, including groceries and healthy food options. Property values drop, reducing funding for local public schools and other municipal services. Upwardly mobile residents of high-crime neighborhoods often move out, which exacerbates the concentration and clustering of disadvantage in those areas.33 And just as a criminal conviction or an arrest record can be a stigma on the job market, victims of crime can be stigmatized in extremely disadvantaged communities, where mutual respect can become a zero-sum game.34Given that serious crime causes the same kinds of problems as abusive policing and concentrated incarceration, we argue that state and local governments face an inevitable and tragic trade-off between the harms of crime, punishment, and policing. The least well-off have to bear the brunt of these trade-offs, no matter how state and local governments choose to make them. The fact that trade-offs of this nature are inevitable is itself an injustice. It is an indictment of our society. But we think some ways of balancing these harms are more just and more efficient than others.Thus, we think that the question before us is how to strike the right penal balance. What ought to be done about the level of incarceration and the level of policing in today’s United States? Where, in the 2 × 2 space plotted above in Figure 1, should the United States lie?Consider, first, how a consequentialist might approach this question. On that view, the state should decide how to strike the balance between incarceration and policing by choosing that point in this 2 × 2 space that maximizes aggregate welfare. How should we expect different ways of striking the balance between policing and incarceration to affect people’s well-being in the aggregate?Consider what we take to be the first-order welfare consequences of moving to any point in this space: what it would imply for the level of homicide and crime, the number of people in prison, and the number of people killed and arrested by the police. What would happen to each of these if the United States were to implement the First World Balance?First, homicide and other kinds of serious crime would decline. The empirical literature on deterrence is unequivocal that increasing the size of police forces is a much more efficient way to prevent crime than increasing the length of prison sentences for those who are apprehended and convicted.35 The explanation for this asymmetry is well established in behavioral psychology and economics. People do not make decisions the way rational choice models imply. Rather than calculating the expected utility of the options they are choosing between, people tend to weigh the immediate consequences of their actions much more heavily than consequences in the distant future.36 It is by definition possible to add to the length of a prison sentence only on the back end, in the future. So it is to be expected that increasing the probability of arrest and conviction would do more to deter crime than increasing sentence lengths. Today in the United States, a single dollar spent on policing is almost sixteen times more effective at deterring crime than a dollar spent on incarcerating additional prisoners. Our best guess is that the First World Balance would be a world of a little more than four thousand fewer homicides (and substantially less crime more generally).37Second, the costs to aggregate well-being imposed by mass incarceration would be substantially smaller. Whatever its general consequences, prison is extremely detrimental to the well-being of prisoners. It is difficult to put a precise number on this suffering. But suppose one thinks that a year in prison is even one-half as good as a year spent outside. On this view, a reduction of two million in the prison population would be the equivalent of saving one million years of life (roughly, fifteen thousand lives, assuming a life expectancy of about sixty-five). The smaller the exchange rate (e.g., if living for a year in prison generates only one-tenth of the utility of living for a year outside prison, rather than one-half), the larger the welfare consequences of decarceration.Finally, consider the costs of policing. On the one hand, a world of more policing would, perhaps unsurprisingly, be a world of more arrests. Based on recent work by Chalfin, our best guess is that the First World Balance would be a world of almost 7.8 million more arrests.38 On the other hand, for the somewhat speculative reasons we gave earlier, we guess that a world of more policing would be one of less police violence (about nine hundred fewer people killed by the police).39Consequentialists have to propose some way to weigh these consequences against each other. This is not straightforward, but however one chooses to do it, the deck seems stacked against the status quo. For the additional arrests to be reason to rule against our proposal on consequentialist grounds, the costs of these arrests to aggregate well-being must outweigh the sum of the benefits of less crime and less incar