I recently came across an article discussing a TED Talk by a Baltimore police officer. The thesis: we (Americans) rely on police too much. I didn’t find that an unreasonable premise.
It got me thinking about both policing as well as our criminal justice system. Do we depend on them too much? Consider all the ways in which we use police:
* There are thousands of police officers assigned to schools all over the country. There have been incidents such as police [handcuffing 6-year-olds](http://www.rawstory.com/2012/04/cops-arrest-6-year-old-kindergartener-in-georgia/) for being unruly in class. * Police are often called on to deal with people having mental health crises. Too often, [people who need help end up dead](https://www.policeone.com/police-products/body-cameras/articles/8459038-Video-Dallas-cops-fatally-shoot-mentally-ill-man-wielding-screwdriver/). * As steps are taken toward decriminalization of drugs, police are taking on roles such as [offering access to rehab](http://www.nytimes.com/2016/01/25/us/massachusetts-chiefs-tack-in-drug-war-steer-addicts-to-rehab-not-jail.html?_r=0). Access to rehab is a good thing, to be sure. Gating it behind the very law enforcement organizations that have, up to now, specialized in victimizing drug users, not so much. * Police are called on to mediate all matter of disputes, many of them having no relevance to police. The advice given to officers themselves is to make clear that [personal disputes are not a police problem](http://www.policemag.com/blog/patrol-tactics/story/2008/04/duty-tips-responding-to-civil-disputes.aspx). * Police are also used as crowd control, which is a euphemistic way of saying they are employed to disperse groups of people engaged in anything from peaceful protest to outright rioting. * Police generate revenue through a variety of means, most of them targeted at the poor. [The Justice Department's report](http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf) on the Ferguson, Missouri Police Department offers a thorough examination of such policies as practiced in Ferguson (and no doubt elsewhere in the US). * Police are also expected to respond to crimes in progress, which I do not consider a controversial usage. That is essentially the main thing police should be doing. * Finally, police should be on hand to assist citizens in distress. Think car accidents, natural disasters, and other instances where calm guidance by lawful authorities can keep a chaotic situation from spinning out of control. Again, this is not a role that I think is improper or controversial.
If we were to take policing–and, indeed, our entire approach to criminal justice–back to the drawing board, how would we change it? What might it look like?
First, we must accept some hard truths about the purpose of law enforcement in the US. While it is ostensibly designed to treat all people equally, it is quite clear that this does not happen. Instead, the poor and vulnerable are victimized and marginalized at the behest of constituents who prefer order and the illusion of a well-functioning society over facing the underlying reality.
What I mean by this is that the people ensnared by our justice system are generally not misanthropes or cut from the mold of serial killers and sociopaths. Instead, most of them are people with problems, people who have made mistakes, and people of limited means. The alleged purpose of law enforcement–from policing, to court process, to imprisonment–is to protect decent, law-abiding citizens from those who are not. But little exception is made for people addicted to drugs, people with mental illness, and people who have few financial resources. Often times, resources do not exist to help such individuals prior to the involvement of the legal system, and this begins to reach toward the heart of the problem.
Trends in American cultural attitudes produced a “tough on crime” mindset that manifested perhaps most starkly in the 1980s, at the height of the War on Drugs. The intensity of the rhetoric today may no longer be at a fever pitch, but the effects are still with us. Welfare reform and other curtailments of public assistance have exacerbated poverty, particularly at the margins. Being impoverished is itself often criminalized, as being unable to pay fines assessed (such as, say, for speeding, or not having a vehicle properly insured or registered) only causes them to accumulate, leading to contempt charges, bench warrants, and some combination of probation (for which there are monthly fees paid to private companies), fines (which the already-broke defendant can scarcely afford), and incarceration (the ultimate stick, which again sees money going into the pockets of private enterprise). Privatization is said to originate many of these motives and has been harshly criticized, but this is no reason to let imprisonment itself off the hook, nor the surrounding criminal justice apparatus.
American prison conditions are abominable. The most common stereotype, often made into a source of humor, is of male inmates raping one another, but that is hardly the beginning or the end of it. Abuse by guards is common, moreso when male guards are placed in charge of female prisoners. Prisons that are focused on saving money or maximizing profit routinely neglect not just the medical needs of their prisoners, but basic necessities of human life: food, clean water, and adequate shelter. In 2012 alone, over 4000 inmates held in state or local jails and prisons died in custody. Suicide and illness-related deaths remain the most common. While most reports of suicide are likely legitimate, police and guards faking prisoner suicides is not unheard of. Likewise, though illness may be dismissed as death by natural causes, individuals in custody are sometimes deliberately neglected to the point of death. Worse than the fact that such incidents transpire at all is that consequences are so rare. From brutality inflicted by police against minorities in their own neighborhoods to prison guards who abuse and neglect their charges, police rarely face penalties for their actions, and in the case of prison guards, union contracts can prevent effective handling of abusive behavior. By no means is this intended as a dig against unions, but it is instead an illustration of the fact that institutions, once imbued with the authority of legal force and offered means of self-preservation, unsurprisingly protect themselves and grow their influence.
Thus, the more problems police and other law enforcement authorities are called on to handle, the more powerful, influential, and intractable they become. Police have taken over roles more appropriate to social workers and emergency medical staff, at least in part because police have seen their budgets and revenues increase while other essential services have suffered financial cuts and staff reductions. Police also enjoy revenue sources unavailable to, say, social workers. A social worker can’t fine you for failing to show up for an appointment–but police can inflict more fines on you for virtually any reason they like, knowing that most will pay rather than take time away from work that they can’t afford, in order to fight it in court.
To understand why such a trend persists, it helps to ask who benefits. Obviously, private prisons and security companies make profits, and this turns them into entrenched interests that exert political influence of their own, but what of the actual constituents police supposedly protect and serve? What we see here are two different worlds: there are the relatively well-off, the middle-class citizens who find a speeding ticket or a parking fine a momentary inconvenience, but are terrified by the prospect of violent gangs, deranged rapists, and greedy drug dealers roaming their streets; and then you have the people just scraping by, for whom even a trivial police encounter can become a life-altering catastrophe, and whose pain need never be felt or even acknowledged by the former. This arrangement is symbiotic and even by design. Police know who they can push around and who they can’t. They know who has the wherewithal to fight them, and who doesn’t. This ensures that those influential enough to curb police abuses have no reason to do so, as they are not personally affected. American attitudes are also strikingly unsympathetic toward anyone who has engaged in criminal activity, for reasons that stem from a complex of religious and cultural factors that favor self-improvement by sheer force of will and redemption narratives that have little basis in daily experience. In other words, there is an unreasonable expectation that people facing particular problems tackle them effectively and alone, even in the absence of adequate resources and often without knowledge of how to solve them. A person who is poor cannot stop being poor by merely wishing it so. A person suffering from depression or bipolar disorder cannot simply think their way out of it. A person who struggles with interpersonal interactions due to past traumas, and perhaps ineffective education, will not improve solely by imagining themselves capable. All of these things take resources–resources we would rather commit to punishing people the second they seem like more trouble than (what little we think) they’re worth.
What, then, would a radically revised criminal justice system look like? Reserving police for emergencies and events that genuinely require their attention would be a good place to start. Removing financial incentives from police departments, courts, and prisons would also go a long way. Rethinking the concept of prison itself strikes me as particularly worthwhile. We are making slow strides in that direction, but the goal should be to absolutely minimize the incarceration of human beings, and to avoid replacing it with monitoring regimes that turn them into yet another revenue stream. Mental health and community outreach solutions should be involved first. Crimes of poverty should be treated as such: correct the underlying poverty, and the crimes stop, too. I have said it before, and the evidence bears it out, but I’ll repeat it here: the quickest path to poverty reduction is to simply give people more money. Police abuses, it must be said, have to be handled much more decisively. There are various proposals out there, but the bottom line is that police protect one another from accountability, and by doing so many police who are outright abusive toward citizens are able to continue such crimes for years on end. It must stop.
There are some types of crimes for which solutions that address poverty, mental health, and community stability do not apply, such as rape and murder. Murder is relatively rare, and some of its causes can addressed systemically (see this post on gang violence prevention), but in other cases there is little choice but to keep perpetrators away from the rest of society. Rape is another matter, given that most rapes go unreported, and only a small percentage of rapists ever see the inside of a prison. This one is much more of a systemic issue, and deserves a more thorough treatment in a future post. For now, I will say that it is evident that some (many? most?) who commit sexual crimes are also unrepentant and it may not be possible to reform them; it is sensible to keep them incarcerated. Even so, there is no excuse for the deplorable conditions inside our prisons, nor for the rampant abuse and neglect. I am not convinced that our existing prisons can be reformed effectively, themselves. It would undoubtedly be a very lengthy process, perhaps over the course of decades, and would likely unfold as a side effect of broader social and cultural changes–but prisons could always become harsher, too, depending on the whims of the American public and our institutions. This would be counterproductive, as harsh sentences do not deter crime, but our approaches to criminal justice are rarely based on solid data about the behavior of criminals themselves.
It should also go without saying (but I will say it anyway) that there are simply too many laws on the books. Too many things are crimes, and too many actions carry both financial and carceral penalties. Again, there would be a long-term process involved in revamping our laws. I am personally fond of the suggestion that all laws sunset after a set period (10 years or so) and must be either renewed or allowed to lapse. This ties in neatly with eliminating law enforcement activities as a means of generating government revenue, of course.
This is to say nothing of adjustments that could be made to prosecutorial procedures, and even the validity of grand jury processes and jury trials. I suppose these might be considered sacred cows of American jurisprudence, and yet they deserve to be questioned as much as anything else. Should judges and prosecutors and sheriffs really be elected positions? Doesn’t this produce the wrong incentives? And what about jury trials? In the context in which the US adopted them, they make sense as an alternative to the whims of judges, but in effect, juries are faced with extremely complex laws, sometimes very confusing evidence, and must determine which of the two lawyers is telling the most compelling story of a crime. The way juries are built is also highly suspect, given the arbitrary selection process that tends to filter out more intelligent, more educated jurors.
All this is to say that much could be improved in our legal system. Burning it down and starting over would be preferred, but is impossible without a total collapse of the government and the disintegration of civil order–both of which would be pretty disastrous, in my estimation. This means we’re stuck with path dependence, which means incremental improvements at opportune moments. Radical changes are less frequent, attractive as they may be. (And of course, I would take them when I can get them!) But it helps to keep long-term goals in mind, as well, and I hope we could all envision a future in which police are rare but available when needed, who treat citizens fairly, equitably, and respectfully, and “law enforcement” and “criminal justice” have become niche specialties for which there is no longer much demand. The goal of a good legal system, to my mind, is to create a society in which it is hardly necessary anymore.