George Floyd and the Future of Police Misconduct

The death of George Floyd at the hands of a cop with a history of excessive force complaints has spurred protests, demonstrations, and riots across the nation. Despite heightened awareness of police brutality and the racial inequities associated with mass incarceration, the nation has made little progress. Moreover, the protests, like those following previous killings of unarmed minorities, are likely to sputter out with little progress toward meaningful policy reform. Fortunately, police proposals are emerging that might help move this discussion, and reform, meaningfully along.

Racism and the Drug War 

The racist foundations of America’s 140-year war on drugs are well established. (I review them in my 1992 book Drug Policy and the Decline of American Cities.) Legally, the “war” was a slow burn, beginning with the anti-Chinese sentiment that led to prohibition on opium imports in 1880. Then, the prohibition effort extended to marijuana, using racist tropes about its effect on Mexican immigrants in the 1930s. The war’s most recent iteration saw a dramatic ramp up in incarceration beginning with Richard Nixon’s presidency. Ronald Reagan officially dubbed it a “war” in the early 1980s and doubled down with harsh sentencing laws and dramatically expanded numbers of felony crimes. 

The nation hasn’t looked back. The nation’s jails, prisons, and federal correctional facilities now house more than 2 million Americans. America accounts for about 25% of the world’s total imprisoned population. 

But the drug war is only part of the problem. Fordham professor John Pfaff, author of Locked In: The True Causes of Mass Incarceration and How to Achieve Reform, lays some of blame on overcharging by prosecutors (district attorneys) responding to unfounded fears in the community at large. A “tough on crime” political ethic has led to systems that put a premium on incarcerating suspected offenders rather than addressing the root causes of the offense, “restoring” or reintegrating ex-offenders back into the mainstream, or even achieving justice.

Prosecutorial Misconduct

The vast majority of convictions result from plea bargaining, which significantly disadvantages poor, minorities, and other marginalized populations. Without access to adequate legal representation, a “bargain” that included pleading “guilty” to a lesser crime with a short sentence, even if someone did not commit the crime, looks better than the even scarier outcome based on a jury acquitting you of a dozen or more charges. Even without structural racism, our prisons would be disproportionately populated by minorities and poor by pure socioeconomics (which are correlated but independent effects). 

Structural racism, however, is at play. This case is powerfully made in the award-winning 2016 documentary film 13th (now streaming on Netflix). The film’s title — 13th — refers to the Thirteenth Amendment to the U.S. Constitution, which barred slavery. Specifically, the text reads “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” 

The movie seems to suggest that if we simply remove the clause “except as a punishment for a crime,” then the racist nature of the criminal justice system would be undermined. But this implies to an typical American reader that prisons themselves would have to be abolished, even for those who commit crimes. Abolishing all prisons or forms of incarceration is a nonstarter for the vast majority of Americans. The movie offers no resolution to this dilemma. As a result, the film, like the current protests over the killing of unarmed black men, provides little insight into practical steps toward reform.

Practical Policy Reforms to Reduce Police Brutality

Which brings us back to George Floyd and police brutality. If we continue to believe that at least some people who commit crimes must be removed from society — incarcerated — how do we address obvious racial inequities, let alone police brutality against minorities and the poor? 

Several organizations have been mobilizing for decades to roll back destructive mandatory minimums and three strikes sentencing laws. These laws have incarcerated hundreds of thousands of nonviolent offenders with little social benefit (see here and here for summaries of the issue). Moreover, while reform in these areas would reduce the “in take,” they don’t address police brutality per se.

Enter Rashawn Ray, a sociologist and David M. Rubenstein Fellow in Governance Studies at the Brookings Institution. Ray argues that two reforms could have a meaningful impact on law enforcement agencies and reduce police brutality. First, an officer’s previous work history should be part of the hiring process. If an officer was dismissed from their previous job for excessive force or inappropriate conduct, they should be barred from being hired back into law enforcement. 

Second, and perhaps more important (because it also addresses the first recommendation), Ray argues law enforcement agencies should not use taxpayer funds to compensate victims of police misconduct — civil payments. Instead, law enforcement agencies should, like doctors and other professionals, buy the equivalent of private malpractice insurance. Then, their insurance premiums would reflect the relative risk the departments face from institutionalized misconduct. Minimizing conflict with the community and suspected offenders becomes a fiscal and strategic priority within the agency. Minorities will be direct beneficiaries of this change in policy.

Another policy reform I would add to the list would be rolling back qualified immunity, a legal shield created by the U.S. Supreme Court for police officers (and other state actors) even if they violate the law. This threshold has made it very difficult to prosecute police officers for criminal acts even when they violate the constitutional rights of a suspect. According to the Cato Institute’s Jay Schweikert, the U.S. Supreme Court may be ready to review several cases that might challenge this judicial doctrine (which is not constitutionally based). (See also the work by the Institute for Justice.)

Time for Law Enforcement Agencies to Step Up

In the meantime, law enforcement agencies could impose their own standards. They could, for example, adopt a minimally necessary force standard for arresting suspects. This would put the emphasis on de-escalation and prompt a question about whether the force needed to arrest a suspect is commensurate with the crime. A violent criminal suspect, for example, with a warrant for their arrest might properly require a higher level of force compared to someone pulled over for a traffic violation.

Protest movements, whether the Tea Party or Black Lives Matter, can be quite effective at tearing institutions down. What they don’t do effectively is build, or reconstruct, just institutions. This task will be left to the policy experts and elected officials. But reconstructing just institutions can’t even begin unless we have solid proposals for what the building blocks for reform are. 

For more on race, police brutality, and criminal justice reform, see my movie reviews of Queen and Slim, Green Book, Marshall, Detroit, and Loving.

Independent Institute books on criminal justice reform and policy include:

• The Pursuit of Justice: Law and Economics of Legal Institutions (Edward J. Lopez, ed.)
• Securing Civil Rights: Freedmen, the Fourteenth Amendment, and the Right to Bear Arms (Stephen P. Halbrook)
• Race & Liberty in America: The Essential Reader (Jonathan J. Bean, ed.)
• Judge and Jury: American Tort Law on Trial (Eric A. Helland and Alexander T. Tabarrok)