It All Goes Back to Incentives

John Malcolm raises three issues with our piece: (1) police violence towards U.S. citizens really isn’t as bad as we say it is, (2) race and racism is not a significant factor in how people are treated by our criminal justice system, and (3) the incarceration rate in the United States isn’t too high when you take into account our violent crime rate. We don’t have too much to say to these three points beyond providing the relevant data—you can decide if things are as bad as we claim.

So far in 2020, nearly 600 Americans have been killed by our own police officers, roughly three people per day. Over the past five years, we’ve averaged approximately 1,000 police killings per year, and so we’re currently on pace for a 10% increase over that average in 2020. This number is unacceptably high, especially when considering the number of police killings in other countries. For example, our rate of citizens killed by police officers is marginally higher than what is seen in Nigeria, the Democratic Republic of Congo, and Kenya; 50% higher than Mexico; double what is seen in Argentina and Egypt; five times higher than Canada; and 15 to 20 times higher than France, the Netherlands, New Zealand, and Australia.

John argues that violence in the United States accounts for our high number of police killings. He’s correct that the United States is a very violent nation when you look at national statistics, especially when we start comparing ourselves to the European nations we often like to compare ourselves to. When you isolate certain parts of the United States—cities like St. Louis, Baltimore, Detroit, and New Orleans—and then isolate certain parts of those cities, you see violent crime rates that approach the most dangerous cities in the world. But there is no correlation in the United States between violent crime in a city and how many people are killed by police in that city.

Worse than just the large number of police killings is how those killings are distributed. Black Americans are three times more likely to be killed by police than white Americans, even though white Americans outnumber black Americans 4.5 to 1. John claims that disproportionately higher crime in the black community is the cause of this disproportionate number of police killings and that police officers actually show a bias towards black Americans, citing work by Harvard economist Roland Fryer. Sounds incredible, right? That’s because it is.

Fryer himself has become dismayed that his “work has been widely misrepresented and misused by people on both sides of the ideological aisle. It has been wrongly cited as evidence that there is no racism in policing, that football players have no right to kneel during the national anthem, and that the police should shoot black people more often.” Fryer found that “there are large racial differences in police use of nonlethal force” and “compliance by civilians doesn’t eliminate racial differences in police use of force.” While police shootings don’t appear to be affected by race, many officer-involved killings—such as those of Eric Garner and George Floyd—were not shootings, and we should be concerned about the disproportionate use of force by our police against black Americans.

One problem is how our police in many cities around the country are trained. They’re taught to approach all encounters with citizens as if they could be life or death situations—for the officers. While being a police officer in the United States is more dangerous than, say, being a schoolteacher, it’s nowhere near as dangerous as we make it out to be. Each year, less than 100 of the over 800,000 U.S. police officers die on duty, and around half of those deaths are vehicle accidents. That’s roughly 11 deaths per 100,000 officers. By comparison, U.S. sanitation workers are four times more likely to die while working, and commercial fisherman are 10 times more likely to die while working.

John may be correct that the amount of violence in the United States justifies our seemingly large prison population. Even if you’re inclined to believe that—and we’re not completely unsympathetic to this position—there are lots of steps we can take to reduce our prison population without increasing the risk of crime. We go into some detail in our book. One easy step is to release most people from prison who are 40 years of age or older, an age at which most people have “aged out” of committing violent crime. Nearly half of the people in our jails and prisons are over 40 years old. Our position isn’t that these people shouldn’t be punished, but rather that it makes financial sense to pursue alternative methods of punishment for people who are unlikely to reoffend due to their age.

Clark Neily’s response raises numerous points about the power of the prosecutor’s office that are incredibly important to understanding the rise in U.S. incarceration rates. Here, we would encourage you read John Pfaff’s excellent book on this topic. Otherwise there is no question that the drug war has done more harm than good when it comes to increased crime and encouraging all sorts of bad incentives up and down our criminal justice system. When it comes to how decriminalizing or legalizing drugs would affect crime and our incarceration rates, the truth is that no one knows, and imagining what might happen if we decriminalize or legalize drugs is one of the parlor games played frequently by those of us involved in criminal justice reform. But, minimally, the data surrounding police violence suggests that we should be treating drug offenses as medical issues, not criminal issues, and approaching them in a very different way than we do right now.

We are much closer to Clark Neily’s position, and our debate with him here is closer to being intramural rather than between schools. That said, while we agree with much of what he says—the drug war and overcriminalization are very bad—for us, these are not so much fundamental explanations but things that need to be explained. Why did the United States have such a bad response to its drug problem? Why did it empower its police so much, remove so many supposedly constitutional constraints, and criminalize so many things? Here, again, the difference seems to be an artifact of the way district attorneys and others are elected, how police and prisons are paid for, how people are counted, and dozens of other institutions which create perverse incentives and which we do not find analogs of in Europe or Canada. So, the United States had a genuine crime shock—for reasons no one quite understands—and this lead the system’s bad incentives to produce an overreaction/misreaction and a rampant rent seeking.

Also from this issue

Lead Essay

  • Chris W. Surprenant and Jason Brennan argue that the U.S. criminal justice system grew to the size that it is owing to the incentives faced by prosecutors, judges, police, and federal, state, and local legislators. Each had a solid but narrow reason to act the role that they did in recent decades, yet taken together, their actions produced a system that locks up more people than any other nominally free country. As incentives created the problem, Surprenant and Brennan recommend a set of policies that will align incentives toward de-incarceration.

Response Essays

  • John Malcolm notes that police misconduct is relatively rare and far from standard operating procedure. While the United States imprisons many more than do other free, developed nations, this has been at least partly the result of a pronounced crime wave that only began to abate in the mid-90s; it is at least arguable that other nations didn’t do enough to imprison the guilty, while we did. Disdain for the American justice system is likewise misplaced: Few would trade a trial in the U.S. system for a trial in Cuba or Russia, for example, their lower incarceration rates notwithstanding.

  • Clark Neily focuses on two factors behind the U.S. mass incarceration phenomenon, overcriminalization and plea bargaining. Overcriminalization, he writes, has come to make criminals of everyone, meaning that prosecutorial discretion reigns supreme. And plea bargaining brings defendants to surrender their constitutional rights under duress, as many fear the much longer sentences that prosecutors threaten to seek at trial.