Mises Wire

Too Many Laws: Why Police Encounters Escalate

[This is Part One in a three-part series on policing. See Part Two and Part Three.]

The debate over the shooting of Philando Castile has ignited the debate over the way the police, generally speaking, often enforce petty, small-time offenses with often overwhelming force. In the case of Castile, the controversy hinges partially on whether or not Castile was being detained as a suspect in a real crime (such as armed robbery), or if he was being stopped and harassed for a small-time non-violent infraction such as drug possession or a broken tail light. 

People instinctively know there is a real difference between the situations. Moreover, it is a safe assumption that in the case of armed robbery, someone has actually requested the services of the police, while it is extremely unlikely that any citizen complained about, or was harmed by, a broken tail light or the possession of marijuana. If it proves to be true that Castile was, in fact, stopped for a small-time infraction, then the escalation to a situation in which Castile was shot dead can be shown to be all the more unnecessary and needlessly violent. 

But, of course, we don’t need the Castile case to prove our point. Every day, people are stopped and detained by police for what should be regarded as peaceful non-criminal activities. But those situations often escalate to tense confrontations, and even in some cases to violent interactions. 

It doesn’t have to be this way.

Police Didn’t Always Patrol Areas Looking for People to Arrest  

Modern policing is largely a nineteenth-century invention, and prior to modern urban police forces, state agents were generally called in to deal only with episodes of general social unrest. 

Prior to the age of the modern police patrol in English-speaking countries, state agents — often a sheriff-like official — were used primarily to compel named defendants to appear in court when another citizen had made a complaint in court against that person, usually to demand restitution for some wrong inflicted. It wasn’t until the twentieth century that police agents routinely patrolled an area looking for places to intervene. In the United States, for example, as Jack Greene notes, ”the American police service was originally cast as a reactive force, not as a preventive of interdicting force. ... America’s police were to provide assistance on request, not to proactively intervene in the lives of the community.” 

In England, the tradition of legal action only beginning in response to a private complaint is very old, and law enforcement agents were expected to act only in response to court orders. Michael Giuliano writes

Since early medieval England, long before the Norman invasion of England, criminal actions had been instituted by aggrieved private parties. They were primarily settled by compensation or restitution, and not imprisonment, capital punishment, or even the blood-feud that was common in much of Europe. For most offenses, specific civil fines and compensation were established. ... The affirmative role of the victim or next of kin initiated the legal process. Particularly heinous offenses requiring more than “mere” intentional homicide, were often excluded from the realm of compensatory remedy. As process, judges were appointed to preside over the courts and enforce the decisions made by the assembled freemen of a district. Policing and law bore elements of democracy.

This reliance on a private restitution-based model continued into the late nineteenth century, and was hotly defended by many of the English on the presumption that a shift to “public” prosecutions — prosecution initiated by the state itself — would lead to a destruction of English civil liberties. Giuliano continues: 

The formal transition from private to public prosecution in England did not occur until 1879 and years passed before it could be implemented in practice. The English gentry had long been suspicious of both a public prosecution system and a professional police force.

Indeed, the private initiation of criminal prosecution in England was a curiosity to visitors. Among them was the French jurist Charles Cottu, who like many was unaware of the “traditional arguments of English gentlemen against a constabulary and state prosecution,” according to legal historian Douglas Hay. Those Englishmen believed, in Hay’s characterization, that the power of prosecutorial institutions could lead to a “political police serving the Crown.” This opposition to public prosecution has been cast by law professor Bruce P. Smith as an example of old England’s “national commitment to civil liberties.”

Obviously, today, we see few traces of a legal system that even resembles the English Common Law system that relied on there being an actual victim for a crime to have taken place.Today, police actively patrol neighborhoods looking for potential offenders even if no one has requested the “service.”

In response, this has led to some observers to suggest that the police should function instead on a “fire department model“ in which police respond only to actual complaints, rather than seek out “offenders” on their own. 

Certainly, this could potentially be a step in the right direction, but the larger problem lies in the fact that not only can arrests and prosecutions be initiated in the absence of any complaint or victim, but the list of offenses for which a person can be arrested and imprisoned has grown disastrously long. 

Every Police Encounter Is an Opportunity for Arrest and Criminal Prosecution 

Dealing with violent crime constitutes only a small minority of what police deal with on a daily basis. For example, in 2014, out of 11,205,833 arrests made nationwide (in the US), 498,666 arrests were for violent crimes and 1,553,980 arrests were for property crime.

That means 82 percent of arrests were made for something other than violent crime or property crime. 

Moreover, many of these non-violent offenses — such as drug use, liquor violations, carrying an illegal knife, or other infractions that should be regarded as small-time offenses can result in serious jail time or prison time, as well as steep fines and lost earnings. 

For instance, the highly publicized death of Eric Garner at the hands of police officers was a conflict precipitated by the sale of untaxed cigarettes by Garner. The police officers who killed Freddie Gray in custody in Baltimore later claimed the arrest was necessary because Gray possessed a knife that violated city ordinances. 

And then there are the countless cases of non-criminals who have been stopped, searched, arrested and imprisoned for petty drug offenses such as possession. 

Indeed, police departments spend an immense amount of time and resources on these non-violent offenses. In their book, The Challenge of Crime, Henry Ruth and Kevin Reitz observe

[W]e do know that the effort to stem the tide of illicit drugs has been massive — and expensive. On the local level, 93 percent of county police agencies and 82 percent of all municipal agencies with more than one hundred police officers contained a full-time drug enforcement unit, as did about 60 percent of the state police agencies, and almost 70 percent of all sheriffs’ departments. New York City alone in 1997 reported over 2,500 police officers dedicated to drug units and task forcese. More than 90 percent of all these police agencies received money and property forfeited by drug sellers for use in law enforcement opertations. ...

State and local police made about 1.6 million arrests for drug abuse violations in 2000, four-fifths of them for drug possession. ... And in 1998, drug offenders were 35 percent of all felons convicted in state courts.

In Gangs and Gang Crime, Michael Newton Reports: “In 1987, drug offenses produced 7.4 percent of all American arrests, nearly doubling to 13.1 percent by 2005.”

As Ruth and Reitz note, there are financial incentives to police agencies to pursue drug offenders. The nature of drug offenses also gives the police more reason to make arrests in general. As explained by Lawrence Travis in Introduction to Criminal Justice:

With increased emphasis on drug crimes, agents and agencies of the justice system have uncovered offenses that have been present for years. Because drug offenses have gone unreported in the past, Zeisel (1982) noted that they present an almost limitless supply of business for the police. changing public perceptions of the seriousness of drug offenses has supported increased drug enforcement efforts.

[Peter] Kraska observed that with drug offenders, police “can seek actively to detect drug crimes, as opposed to violent and property crimes, for which they have little choice but to react to complaints.” Thus, the volume of drug offenders entering the justice system is more a product of police activity than is that of violent or property offenders.. Political pressure to treat drug offenses more seriously, coupled with giving incentives such as profit from seizing the property of drug offenders, spurs more aggressive police action.”

In other words, rather than react to complaints about violent crime or property crime, drug enforcement provides the police with nearly limitless opportunities to search, question, and arrest suspects for any number of offenses related to drugs. Moreover, if the police attempt to stop and search a person, and the person becomes uncooperative, police may then be able to justify an arrest for “resisting arrest” or similar offense even if no drugs are found. 

Arrests in turn then bolster a police officer’s career, even though little time has been spent on investigating violent crime or recovering stolen property. 

The results of this emphasis among law enforcers can be seen in the incarceration data. Erinn Herbermann and Thomas Bonczar report that, of the 3,910,647 adults on probation in the US at the end of 2013, 25 percent (approximately 977,662 people) had a drug charge as their most serious offense.

According to the Justice Policy Institute: “approximately one-quarter of those people held in U.S. prisons or jails have been convicted of a drug offense. The United States incarcerates more people for drug offenses than any other country. With an estimated 6.8 million Americans struggling with drug abuse or dependence, the growth of the prison population continues to be driven largely by incarceration for drug offenses.”

Consequently, more than one-fifth of prisoners (21 percent) in state prisons are held due to drug violations, while more than half (55 percent) of prisoners in federal prisons are held due to drug violations. This does not include offenders in county jails for shorter non-prison sentences. 

The Effects of an Expansive Criminal Code on Police-Suspect Interactions 

The effects of these trends should be predictable. 

Imagine, for example, a world in which the only offenses that brought significant jail terms or large fines were violent criminal acts and property crimes. Obviously, in this case, the range of action open to the police would be greatly reduced, and citizens stopped by the police would have little to worry about in terms of stiff jail sentences. The possession of a switchblade or a certain type of cigarette would be of little concern to either the police or the suspect. Even if policymakers could not bring themselves to legalize these activities but only de-criminalize them, the stakes would be much lower in police-citizen interactions when citizens fear only a citation and fine instead of prison time for any offense that does not involve thievery, fraud, violence, or destruction of property. 

When suspects know they are unlikely to be arrested or face a serious criminal charge, they are unlikely to panic and resist the police in a way that may lead to escalation of violence. 

Moreover, given the relative rarity of real crime versus mere drug offenses and other small-time violations, police would be forced to concentrate their efforts on violent crime and property instead.

After all, given the reality of scarce resources for any endeavor, including policing, the opportunity cost of pursuing drug offenses leads to fewer police resources being devoted to recovering stolen property and pursuing violent criminals.

Contrary to un-serious and absurd claims that the police ”enforce all laws,” police use their discretion all the time as to what laws to enforce and which to not enforce. Those laws that are enforced are often laws that can lead to profit for the police department — such as drug laws which leads to asset forfeiture — or laws that can make for easy arrests — such as loitering and other small time laws — which improve a police officers’ arrest record.

If we want to be serious about scaling back the degree to which police interactions with the public can lead to violent escalations, we must first scale back the number of offenses that can lead to serious fines and imprisonment for members of the public, while shifting the concentration of police efforts to violent crime and property crime. The emphasis must return to crimes that have actual victims and which are reported by citizens looking for stolen property and violent criminals. Not only will this increase the value of policing, but will also improve relations with most of the public while reducing the footprint of the state in the lives of ordinary people.

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