Less Punishment, More Justice

The mass protests spurred by George Floyd’s killing have been more sustained and widespread than any this country has seen before in response to police abuse. When the initial ones prompted even more police violence—officers driving cars into peaceful demonstrators or beating them with truncheons, using chemical agents and flash grenades to clear crowds for a presidential photo op, pepper-spraying young and old alike—the aggression, much of it captured on video, only inspired more people to join the protests.

When it became clear that local police, the National Guard, Customs and Border Patrol officers, prison guards, and Secret Service, FBI, and ATF agents could not quell the unrest, some authorities began promising reform, a more productive approach. Minneapolis, the scene of Floyd’s excruciating videotaped eight-minute-and-forty-six-second murder, announced plans to dismantle its police department. In Los Angeles, Mayor Eric Garcetti dropped a proposal to increase the police budget by 7 percent and instead sought to cut it by $150 million, with the savings reinvested in community programs. New York City mayor Bill de Blasio proclaimed that he would cut the NYPD’s $6 billion budget and reinvest the savings in social services. In Washington, D.C., Mayor Muriel Bowser renamed a street in front of the White House “Black Lives Matter Plaza,” and the city council voted unanimously to reform the police disciplinary process.

Democrats in Congress, including Senators Kamala Harris and Cory Booker and Congressional Black Caucus chair Karen Bass, introduced the Justice in Policing Act, which would ban racial profiling, chokeholds, and no-knock warrants; limit the transfer of military equipment to police departments; increase police accountability by imposing reporting and transparency requirements; and eliminate “qualified immunity,” a doctrine created by the Supreme Court that protects officers from lawsuits when they violate constitutional rights. And perhaps most stunning of all, Mitt Romney joined the protests and tweeted a selfie captioned “Black Lives Matter.”

Not all authorities got the message. President Trump castigated the demonstrators, threatened to call out the military using the Insurrection Act, and incited violence himself, tweeting that “when the looting starts, the shooting starts.” He issued an executive order on police reform that is full of empty gestures and insisted that the problems were limited to a few bad cops. Attorney General William Barr, ever Trump’s loyal henchman, dismissed the idea that systemic racism affects policing. And the Supreme Court declined to take up several cases asking it to reconsider the doctrine of qualified immunity.

Still, the very fact that Trump felt compelled to issue an executive order illustrates the political pressure the protests have generated. But what exactly can and should be done to address the problems they have called out? “Defund the police” has become the movement’s slogan, reflecting the reality that our society invests far too much in policing inner-city communities and far too little in helping them rise above the challenges of poverty and structural inequality. The Georgetown law professor Paul Butler, in Chokehold (2017), and the Brooklyn College professor Alex Vitale, in The End of Policing (2017), among others, have long advocated for radically reducing police responsibilities, but such proposals, once dismissed as extreme, have suddenly gained traction.

“Defund the police” is an easily misunderstood demand and, like many slogans, appears to mean different things to different advocates. The Movement for Black Lives explains on its website that “defunding the police doesn’t mean an immediate elimination of all law enforcement, nor does it mean immediately zeroing out police-department budgets.” After all, we need law enforcement, at a minimum to address violent crime. Who else is going to respond to an emergency call about an active shooter, a kidnapping, or an armed robbery? And violent crime is greatest in inner-city communities marked by poverty and despair. In his Pulitzer Prize–winning book, Locking Up Our Own (2017), the Yale law professor James Forman Jr. showed that African-Americans and their leaders have long criticized not just overpolicing but also underpolicing. The Northeastern sociology professor Rod Brunson has confirmed through surveys of inner-city residents that they remain concerned about both overly aggressive street enforcement and inadequate responses to serious crimes.¹ Many fewer homicides involving black victims are “cleared” by the arrest of a suspect than homicides involving whites. As the New York Times columnist Charles Blow has written, “Minority communities want policing the same as any other, but they want it to be appropriate and proportional.”

The “defund the police” movement maintains that policing in communities of color is too often inappropriate and disproportional. A 2017 report by the Center for Popular Democracy, Law for Black Lives, and the Black Youth Project 100 notes, “Over the last 30 years, the US has dramatically increased its investment in policing and incarceration, while dramatically cutting investment in…social safety net programs.” Between 1986 and 2013, for example, spending on prisons and jails nationally grew by 141 percent, while spending on higher education grew by less than 6 percent. While crime has dropped by half over the past twenty years, the number of police has remained the same, meaning that we now have twice as many officers for every crime.

At the same time, we ask too much of police. As David Brown, chief of police in Dallas, put it at a press conference in 2016, following the sniper killing of five police officers there:

Every societal failure, we put it on the cops to solve…. Not enough mental health funding, let the cop handle it. Not enough drug addiction funding, let’s give it to the cops. Here in Dallas we have a loose dog problem. Let’s have the cops chase loose dogs. Schools fail, give it to the cops. Seventy percent of the African-American community is being raised by single women, let’s give it to the cops to solve as well. That’s too much to ask. Policing was never meant to solve all those problems. I just ask other parts of our democracy along with the free press to help us.

Thanks to the recent protests, those who care about the deep and abiding race and class inequities that the criminal justice system both reflects and helps to perpetuate will likely never have a more receptive audience. So it’s crucial not only to seize the moment but also to make changes that will not be forsworn the next time there is a crime wave. Much of the public seems convinced that reform is needed. But how we go about it will determine whether the changes are lasting or ephemeral, substantive or symbolic. A decision to “defund the police” today, after all, can give way to a decision to “re-fund the police” tomorrow, if crime rises and the political winds shift. Meaningful change, therefore, requires clarity about what “defund the police” means in practice, and a strategy for insulating change from the inevitable backlash.

The principal goal of the “defund the police” movement is to shift societal resources toward less punitive responses to poverty and disorder. The kinds of social problems identified by David Brown should not be the principal concern of police officers. It has fallen to them largely because we have failed to invest in more affirmative interventions, including education, aftercare, and jobs. Were the victims of police abuse disproportionately white and wealthy, we can be confident that the political response would not be to funnel more money to police departments. That we so willingly do so when communities of color are the victims is a form of racism, whether conscious or unconscious.

The first step in any “defunding” of the police requires identifying which of their tasks and responsibilities could be better handled by others—or perhaps need not be handled at all. Getting police out of schools, for example—as districts in Minneapolis, Portland, Seattle, Oakland, and Denver are moving to do—is an important start. Schools have increasingly relied on police officers, in part in response to school shootings, but there is little evidence they have deterred shootings, and much evidence that they have contributed to racial disparities in school discipline. Sending mental health experts rather than police to respond to nonviolent mental health crises also makes sense. But while important, these measures won’t dramatically reduce policing, as most officers are not deployed in schools or principally involved in such mental health incidents.

What police officers spend most of their time doing is enforcing minor offenses, known as misdemeanors. Alexandra Natapoff’s Punishment Without Crime, a damning portrait of the oft-neglected world of misdemeanor enforcement, suggests that changing how we treat such offenses may be the most effective way to reduce unnecessary and costly police–citizen encounters. Scholars, lawyers, and crime-show writers don’t generally pay much attention to misdemeanors. Jaywalking and disorderly conduct don’t make for nail-biting drama or fundamental moral dilemmas. But it’s the misdemeanor system that affects by far the most Americans. Each year, 13 million people are charged with a misdemeanor, ranging from littering to drunkenness to domestic assault. Largely because of this petty-offense enforcement, half of black males can expect to be arrested by the time they turn twenty-three.

It was misdemeanor enforcement that led the convenience store Cup Foods to call to the scene the police responsible for George Floyd’s death: he was suspected of having used a counterfeit $20 bill. In 2014, Eric Garner was killed during an altercation in New York City over his sales of cigarettes without paying the appropriate taxes. One year later, Walter Scott was fatally shot in Charleston, South Carolina, after being pulled over for a broken brake light.

The vast majority of coercive police–citizen encounters involve such petty offenses, and racial disparities are at their greatest in these settings. For example, every driver regularly violates some provision of the byzantine traffic laws, but African-American and Latinx drivers are twice as likely as whites to be stopped for a traffic infraction. White and black people smoke marijuana in equal proportions, but nationally blacks are arrested 3.6 times as often as whites for possessing it. In Montana, Kentucky, Illinois, West Virginia, and Iowa, black people are seven times more likely to be arrested than whites for marijuana possession. And in the top twenty counties for racially disparate marijuana arrest rates, including counties in Massachusetts, Ohio, Wisconsin, and Pennsylvania, black people are between twenty and one hundred times more likely to be arrested.²

Nationally, African-Americans are 12.6 percent of the population. Yet according to FBI misdemeanor data, in 2015 they made up 45 percent of arrests for curfew violations and loitering, 31 percent of disorderly conduct arrests, and 56 percent of gambling arrests. In Urbana, Illinois, where African-Americans make up 16 percent of the population, they accounted for 91 percent of those charged with jaywalking from 2007 to 2011.

This is not new. “The petty-offense process has been used to label, move, control, displace, and even enslave entire groups and populations for centuries,” Natapoff writes. As Douglas Blackmon detailed in Slavery by Another Name: The Re-Enslavement of Black Americans from the Civil War to World War II (2008), during Reconstruction, local police used petty offenses to arrest newly freed slaves on minor and often bogus charges, and then hired them out for “convict leasing.”

Long after that practice ended, cities and towns in the South and elsewhere used vagrancy and loitering laws to target poor people of color. These laws were so broad that almost anyone could be charged. The vagrancy law in Jacksonville, Florida, for example, which read as if it were written by Charles Dickens, defined “vagrants” to include:

Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets, traders in stolen property, lewd, wanton and lascivious persons, keepers of gambling places, common railers and brawlers, persons wandering or strolling around from place to place without any lawful purpose or object, habitual loafers, disorderly persons, persons neglecting all lawful business and habitually spending their time by frequenting houses of ill fame, gaming houses, or places where alcoholic beverages are sold or served, [and] persons able to work but habitually living upon the earnings of their wives or minor children.

The Supreme Court declared the Jacksonville vagrancy law unconstitutional in 1972 and has since invalidated similarly sweeping anti-loitering laws. But laws against loitering, disorderly conduct, and other vaguely defined offenses remain on the books today and continue to afford police officers virtually unfettered discretion.

“Broken windows” policing strategies favored by many police departments rely on especially aggressive enforcement of such laws in high-crime neighborhoods, again disproportionately targeting people of color. Proponents of this strategy speculate that prosecuting low-level “quality-of-life” offenses may reduce crime generally by identifying criminals before they commit more serious offenses, by counteracting the negative effects of disorder (thus “broken windows”) in a community, and by deterring people from carrying weapons out of fear they will be stopped and frisked. At the height of this strategy in New York City, officers stopped and frisked more than 685,000 residents in a single year, 87 percent of whom were black or Latinx.

Given these disparities and this history, cutting back on misdemeanor enforcement would disproportionately benefit people of color. But it would also benefit many others. The truth is that we are all misdemeanants. Who among us has not jaywalked, spit on the sidewalk, loitered, exceeded the speed limit, or been drunk in public? While, as noted above, half of black men will be arrested by the time they turn twenty-three, it is also true that nearly 40 percent of white men will be. It is in everyone’s interest to reform this area of law—especially as many misdemeanors could be treated as civil infractions, like a parking ticket or a moving violation, without criminal consequences.

Misdemeanor enforcement has been the locus of so much discrimination and abuse precisely because it is where law enforcement officials exercise the most leeway: police can arrest or ignore; prosecutors can decline prosecution or throw the book at a suspect; and judges often have a range of options, from probation to a sentence of up to one year. At the same time, defendants have minimal rights. If the state does not seek incarceration, defendants have no right to a lawyer, and without one many rights go unrealized. Even if they have a lawyer, she is often an overburdened public defender who barely has time to meet her client, much less mount a full defense. In theory, misdemeanor defendants have the right to a jury trial if they face a potential sentence of more than six months, but in practice 97 percent plead guilty. And they often do so because they can’t afford the cash bail set for pretrial release, at which point the quickest path to freedom is a guilty plea to “time served.”

Misdemeanor convictions mark one as a “criminal,” making it more difficult to get a job, housing, and certain welfare benefits, and therefore making repeated offenses more likely. And because aggressive misdemeanor enforcement can corrode trust in the police, it makes it more difficult for authorities to obtain the cooperation they need to solve more serious crimes. In this sense, overpolicing of minor offenses and underpolicing of serious crimes are two sides of the same coin.

What would misdemeanor reform look like? The first step would be decriminalization or legalization—eliminating criminal penalties for low-level offenses like jaywalking, loitering, disorderly conduct, and trespassing that do little harm to others. That’s already beginning to happen with respect to marijuana possession in many states, but many more offenses could be handled similarly.

Second, police can and should desist from aggressive stop-and-frisk practices, many of which are predicated on suspicion of a misdemeanor. There is no reason to believe this reform would increase crime. Crime fell in New York City during the tactic’s most aggressive deployment, under the Bloomberg administration, but it had already begun dropping before the strategy was deployed, and crime did not increase significantly when police radically reduced its use after a court declared it unconstitutional. Moreover, during the period that New York was using stop-and-frisk most aggressively, crime dropped throughout the country, including in many cities that did not adopt the tactic.³

Third, prosecutors should exercise their discretion to reduce misdemeanor prosecutions. They could announce that they will not pursue certain minor offenses, either entirely or in the vast majority of instances. That in turn would reduce arrests, because officers would know they would be futile.

Fourth, cash bail should be eliminated. It is both unconstitutional and unfair to hold people in detention because they are too poor to pay their bail. Several states, including New Jersey, have eliminated or limited cash bail and adopted instead a system in which only those who are proven to pose a risk of flight or a danger to the community are detained before trial.

Were such reforms adopted, there would be far less need for police, fewer arrests, and fewer encounters over minor infractions. We would also need fewer prosecutors, judges, court personnel, and jails. The savings could be invested in programs that help people overcome their socioeconomic hurdles rather than punish them for failing to do so. And freed from monitoring so many minor offenses, police could focus on solving the serious crimes for which they are most needed.

Removing police from schools and involvement in routine mental health incidents, shrinking petty offense enforcement, reducing police budgets, and reinvesting in communities are critical aspects of reform. But even if all these measures were adopted, they would not be enough to address the inequities of the criminal justice system.

Meaningful reform also must tackle mass incarceration, a phenomenon largely attributable to participants in the system other than the police. The United States locks up more people than any other country, with approximately 2.3 million people in jail or prison on any given day. African-Americans make up about 40 percent of the prison population, despite being less than 13 percent of the US population. From 1972 to 2007, as Presidents Nixon and Reagan declared wars on crime and drugs, respectively, legislatures enacted increasingly stringent criminal laws, prosecutors charged defendants increasingly harshly, and rehabilitative programs and parole were largely eliminated. These factors—not more arrests by police—caused the national per capita incarceration rate to more than quintuple. Since 2007, it has begun to decline, but too slowly. At current trends, it will take seventy-five years to cut the US prison population in half, and we would still have one of the world’s highest incarceration rates, far exceeding that of any European country. And while some of those imprisoned are held for nonviolent offenses, the majority are serving sentences for violent crimes. Thus, as long as we focus only on nonviolent and low-level offenders, the NYU law professor Rachel Barkow argues in Prisoners of Politics, we will only be tinkering around the edges.

For violent offenders, prison will often be warranted, but the lengthy sentences meted out in American courtrooms are not necessary. In 2019 more than 200,000 people were serving life or virtual life sentences, more than the total number of persons serving any sentence in all state and federal prisons in 1972. Yet studies have shown that it is the certainty of punishment, rather than its severity, that deters crime. And most offenders “age out” of criminal behavior, so locking them up for long periods is unnecessary from a public safety perspective. Indeed, Barkow notes that longer sentences are correlated with higher recidivism rates, so they may actually be counterproductive.

There is also no necessary connection between incarceration rates and crime generally; from 2006 to 2012, for example, California reduced its prison population by 23 percent, while violent crime fell by 21 percent. And as Franklin Zimring’s The City That Became Safer (2011) showed, from 1990 to 2009 New York City achieved declines of more than 80 percent in homicide, robbery, and burglary without increasing incarceration.

Part of the problem, Barkow notes, is that the length of a criminal sentence authorized by the legislature is generally set with the worst offenders in mind. But those laws then apply broadly to a range of much less culpable behavior. When we think of a “sex offender,” a rapist or child molester probably comes to mind, but in many states “sex offenses” include visiting a prostitute, urinating in public, streaking, or a seventeen-year-old having sex with his sixteen-year-old girlfriend. Similarly, “drug trafficking” elicits visions of kingpins, but 23 percent of drug-trafficking offenders in federal prison are small-volume couriers, 17 percent are street-level dealers, and only about 10 percent are high-level importers.

As with misdemeanors, so with felonies: reform can come from multiple directions. Legislatures should cut the length of sentences authorized by criminal statutes. Prosecutors should use their discretion not to charge the maximum offense available. And states should resurrect parole and rehabilitative programs, to release offenders earlier and better prepared for reentry into society.

While the recent protests have targeted the police, they are only the most visible actors in the criminal system. Barkow advises us to target reform efforts at prosecutors’ offices. John Pfaff showed in Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (2017) that prosecutors’ charging decisions were the most significant contributor to the steep rise in incarceration rates between 1972 and 2007. Armed with that information, activists have for some time supported the election of progressive prosecutors who vow to reduce overly aggressive policing and incarceration. Such candidates have won in cities like Philadelphia and San Francisco, and ushered in substantial reforms.

Barkow argues that even so, because prosecutors have a vested interest in harsh sentences—which make their job easier by inducing guilty pleas—they should play little or no part in criminal justice policy decisions outside charging individual cases. She suggests that we restore sentencing discretion to judges, because “determinate sentencing,” which limits the discretion of judges, has only shifted unaccountable power to prosecutors, as their charging decisions now often dictate the sentence a defendant faces. And she calls for state oversight bodies of experts to review prosecutors’ charging policies.

Bold reform along these lines is possible—if the political will exists. At the moment, it does. But it often won’t. The politics of crime will far more often favor “tough” over “smart” crime policies. As the Harvard law professor and former deputy attorney general Phil Heyman has remarked, “It takes a little time to explain why one thing’s smart and the other thing isn’t. It doesn’t take any time at all to explain why one thing’s tougher than the next.” The tilt toward toughness is also driven by the fact that the institutional voices on crime policy—police unions, prosecutors, and prison officials—all have a vested interest in promoting longer sentences, more discretion, and more resources for the criminal law–industrial complex.

Barkow’s analysis suggests that it is not enough to slash police budgets if we want to ensure lasting reform. We also need to find ways to insulate the process from political winds. She urges that we entrust more criminal justice policy to experts, who overwhelmingly agree that the system is too harsh and too bloated. We don’t leave the regulation of air pollution or workplace conditions to a popular vote, she argues, so why should we do so with respect to public safety? Yet criminal policy is “set largely based on emotions and the gut reactions of laypeople.” Barkow served on the United States Sentencing Commission, a body of experts that has promoted some important reforms of federal sentencing policy, including limits on mandatory minimum sentences. Building on that model, she proposes the creation of an agency “charged with analyzing all criminal justice practices to make sure they are promoting public safety and that the state (or federal government) is pursuing the least costly and least liberty-restrictive alternative to achieve a particular end.”

At the moment, gut reactions may well support reductions in our nation’s reliance on police to solve our many problems. Many citizens seem ready to heed Dallas police chief David Brown’s call, amplified by Black Lives Matter and the tens of thousands of protesters nationwide. But Barkow reminds us that if crime rises, politicians will once again compete to show that they are tougher than their opponents. If we want reform to last, we must do more than “defund the police.” We need to rethink the institutional structures that will determine criminal justice policy for years to come.

—June 25, 2020