August 10, 2020
Rousted by public outrage over the death of George Floyd, members of Congress rushed to embrace feel-good reforms such as a choke-hold ban, bad-cop registry, and of course, racial sensitivity training. But these band-aids do not treat the structural source of Black America's festering grievance with the police.
That toxic structure was built by the politicians themselves. It is a creature of their perennial habit of passing new laws that define more and more behaviors as criminal, such as the War on Drugs in the 1970s and the "tough-on-crime" crusade in the 1980s. Since old laws are almost never repealed (including Maryland's ban on oral sex), the excuses for which citizens can be forcibly detained only expand. Couple that with the rise of confrontational styles of proactive policing ("broken windows" and "stop & frisk") and you have a recipe for rebellion.
An important lesson from civics class is that the government enjoys a monopoly on the legitimate use of violence, and when police make arrests they are exercising that power. Make no mistake, an arrest represents the use of violence against a civilian. Since the arrestee is involuntarily cuffed, booked and jailed, an arrest is a forcible denial of liberty.
Law enforcement's unequal and superfluous exercise of arrest powers is the basis of Black grievance with the police. The aggravating problem is that the license to arrest is not limited to acts that harm life and property such as burglary and aggravated assault. To the contrary, it extends to victimless offenses like marijuana possession and minor irritants like truancy. In fact, the police make more arrests for "vice & nuisance" than for all "violent & property" crimes, especially in black communities. The zealous exercise of arrest powers does more to criminalize members of the black community than to protect them; it does not win many hearts and minds. This is why other countries deal with vice in more equitable and less brutish ways, such as issuing citations and regulatory management.
Not surprisingly, blacks are twice as likely than whites to be arrested for infractions in the vice & nuisance category. Specifically, they are 6 times more likely to be arrested for gambling, 3.6 times more likely for marijuana possession, and 3 times more likely for loitering. The sense of injustice fueled by this racial disparity is intensified by the disproportionate harm it inflicts on young black men; e.g., they are more likely than whites to have their job prospects scarred by an arrest record, not to mention jail-time. Even worse, since arrests for even the pettiest of infractions are susceptible to escalating violence, black men are disproportionately put at risk of death. Infamous examples of this include:
Eric Garner, choked to death on suspicion of selling single cigarettes without a tax stamp.
Walter Scott, shot in the back five times while fleeing arrest for delinquent childcare payments.
Rayshard Brooks, guilty of sleeping-while-drunk in a Wendy's parking lot, was shot in the back while fleeing an "ambush" (an attempt to cuff a person before telling him he is under arrest, which is technically illegal).
Handling those incidents with a summons or citation could have saved lives without posing any danger to the public.
Enforcement Styles: Reactive vs. Proactive
Crimes against persons or property, e.g., murder and burglary, constitute the FBI's index of major crime. Enforcement of these crimes is regarded as reactive because the police are usually responding to calls from victims, witnesses, or bystanders. By contrast, violations classified as "crimes against society," especially the victimless variety like marijuana possession and gambling, are rarely reported to the police. For these crimes, the opportunity to make arrests must be actively "drummed up," i.e., proactively enforced. The expectation that police departments will work to prevent crime, not just react to it, is an important driver of proactive enforcement.
The rise of proactive policing can be seen as a replacement for the precipitous decline in reactive enforcement. From 1991 to 2019, the rate of major crimes reported to police dropped by 50%. Despite this dramatic decline in demand for police services, the number of sworn officers (per capita) remained fairly constant. À la Parkinson's law, proactive enforcement expanded to fill the idle man-hours; especially arrests for drug possession and other minor offenses.
In 1990, 21% of all arrests were for major (Part I) index crimes, while drug possession accounted for just 5%. By 2019, the latter had grown to 13% while serious crime arrests had fallen to 15%. Notice that the FBI's opaque category of "all other offenses" follows the same trajectory as drug arrests. That's because it contains additional opportunities for discretionary arrests, e.g., drug paraphernalia, parole violation, obscene materials, trespass, obstruction of justice, public nuisance, truancy, ungovernability, and possession of undersized lobsters.
The Collateral Damage from Racially Biased Proactive Policing.
The traditional measure of police performance is arrest statistics. The career prospects of officers are enhanced by amassing a record of good arrests. So, to generate arrest opportunities proactively, police routinely stop & search the civilian targets of their presumptive suspicion - young men.
The collateral damage is that the vast majority of accosted citizens are neither arrested nor cited for any infraction. They are innocent. For example, the record of NYC's stop & frisk program shows that for every stop resulting in an arrest, nine innocent civilians are stopped and to some extent manhandled by the police. While the 9 to 1 ratio holds for both black and white communities, blacks are 4 times more likely than whites to be stopped. This means the percentage of innocent people who have been mistreated by the police is four times greater in black communities. Over time this produces a lot of angry people. (The same disparity is reported in a study of police contacts in Houston).
Similarly, a nationwide study of traffic stops found that it took three vehicle searches to yield one arrest, thereby wasting the valuable time of 2 innocent drivers (plus passengers). Here again, because of the racial disparity in traffic searches, wrongful holdups by the police are 3.75 times more prevalent among black travelers than whites.
Solutions?
Contrary to the band-aids suggested by feckless members of Congress in June, solutions must address the structural problem, which is two-pronged:
1. The toxic combination of motive and means in traditional law enforcement: the police are strongly incentivized to make arrests, and the proliferation of criminal laws has given them thousands of justifications for doing so proactively. As a result, the exercise of police discretion tends to be racially skewed and erodes public respect, even when the officers' decisions are perfectly legal. The DOJ's report on the Ferguson Police Department provides a perfect example:
A woman called Ferguson PD to report a domestic disturbance. By the time the police arrived, the woman’s boyfriend had left. The police saw indications that the boyfriend was living in the house. So they arrested the woman because the home’s occupancy permit included her brother, not her boyfriend. Lesson: if you are a victim of a crime, or a witness, don't call the cops because they will look for ways to arrest you!
2. Even more corrosive to public trust is the illegal exercise of police discretion, of which the Ferguson report is replete with examples. This occurs because police are shielded from accountability in a variety of ways. One obvious solution is more intense scrutiny of police behavior, such as universal body CAMs running 100% of the time, no exceptions.
Structural problems require structural solutions, which in this case means massive decriminalization. An end to the corrupt and ineffective wars on drugs and prostitution would be a good start.
Comments