THE INJUSTICE OF UNDER-POLICING IN AMERICA
AMERICAN JOURNAL
of LAW and EQUALITY
THE INJUSTICE OF UNDER-POLICING IN AMERICA1
Christopher Lewis and Adaner Usmani
INTRODUCTION
Since 2014, viral images of Black people being killed at the hands of the police—Michael
Brun, Eric Garner, Breonna Taylor, and many, many others—have convinced much of
the public that the American criminal legal system is broken. In the summer of 2020, nation-
wide protests against police racism and violence in the wake of George Floyd’s murder were,
according to some analysts, the largest social movement in the history of the United States.2
Activists and academics have demanded defunding the police and reallocating the funds to
substitutes or alternatives.3 And others have called for abolishing the police altogether.4 It
has become common knowledge that the police do not solve serious crime, they focus far
too much on petty offenses, and they are far too heavy-handed and brutal in their treatment
of Americans—especially poor, Black people. This is the so-called paradox of under-protection
and over-policing that has characterized American law enforcement since emancipation.5
The American criminal legal system is unjust and inefficient. Mais, as we argue in this essay,
over-policing is not the problem. En fait, the American criminal legal system is characterized by
an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared
to other developed nations. In this country, roughly three people are incarcerated per police
officer employed. The rest of the developed world strikes a diametrically opposite balance
between these twin arms of the penal state, employing roughly three and a half times more
police officers than the number of people they incarcerate. We argue that the United States has
1
2
3
4
5
Last updated February 13, 2022. Thanks to Randall Kennedy, Tara Menon, Seanna Shiffrin, and participants at
the UCLA Legal Theory Workshop for incisive comments.
Larry Buchanan et al., Black Lives Matter May Be the Largest Movement in U.S. Histoire, N.Y. TIMES ( Juillet 3, 2020),
https://www.nytimes.com/interactive/2020/07/03/us/george-floyd-protests-crowd-size.html.
Voir, par exemple., Jennifer Cobbina-Dungy et al., “Defund the Police”: Perceptions Among Protesters in the 2020 March on
Washington, 21 CRIMINOLOGY & PUB. POL’Y 147 (2022).
Voir, par exemple., Amna Akbar, An Abolitionist Horizon for (Police) Reform, 108 CAL. L. REV. 1781 (2020).
Voir, par exemple., RANDALL KENNEDY, RACE, CRIME, AND THE LAW 19 (1997); Alexandra Natapoff, Underenforcement, 75
FORDHAM L. REV. 1715 (2006).
© 2022 Christopher Lewis and Adaner Usmani. Published under a Creative Commons Attribution-NonCommercial-
NoDerivatives 4.0 International license (CC BY-NC-ND).
https://doi.org/10.1162/ajle_a_00030
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it backward. Justice and efficiency demand that we strike a balance between policing and incar-
ceration more like that of the rest of the developed world. We call this the “First World Balance.”
We defend this idea in much more detail in a forthcoming book titled What’s Wrong with
Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the
livre. In the spirit of conversation and debate, in this essay we err deliberately on the side
of comprehensiveness rather than argumentative rigor. One of us is a social scientist, et
the other is a philosopher and legal scholar. Our primary goal for this research project, et
especially in this essay, is not to convince readers that we are correct—but rather to encourage
a more explicit discussion of the empirical and normative bases of some pressing debates about
the American criminal legal system. Even if our answers prove unsound, we hope that the
combination of empirical social science and analytic moral and political philosophy we con-
tribute can help illuminate what alternative answers to those questions might have to look like
to be sound. En fait, because much of this essay (and the underlying book project) strikes a
pessimistic tone, we would be quite happy to be wrong about much of what we argue here.
In the first part of this essay, we outline five comparative facts that contradict much of
the prevailing way of thinking about what is distinctive about the American criminal legal
système. In the second part, we draw out the normative implications of those facts and
make the case for the First World Balance.
je.
FIVE COMPARATIVE FACTS
UN. Mass incarceration is not a world of mass policing
In one sense, prisons and police are complements. It would be impossible to have many
people in prison without the police, depuis, to put people in prison, the police usually have to
apprehend and arrest them first. It would also be difficult to have police without prisons, depuis
the threat of imprisonment is one of the typical sanctions wielded by police around the world.
Given this, and given the exceptionally high incarceration rate in the United States, many people
assume that the United States must also have an exceptionally high number of police officers.
But that is not in fact the case. Chiffre 1 plots the police and incarceration rates of a sam-
ple of developed countries.6 The graph illustrates the chief fact that has animated the
6
Unless indicated otherwise, all data come from the History of Punishment data set maintained by John Clegg and
Adaner Usmani, which collects comparative and historical data on prisons, policing, the courts, and crime from
hundreds of primary and secondary sources. See JOHN CLEGG & ADANER USMANI, FROM PRISON TO PLANTATION
(forthcoming). The majority of the data used specifically in this essay are originally from the United Nations
Office on Drugs and Crime, the World Prison Brief, or Eurostat. Estimates of statistics such as the police and
prisoner rate are the median of estimates from all sources reporting that statistic. To maximize coverage and
minimize the effect of year-to-year fluctuations, in other countries “today” refers to the period spanning 2015
and the latest data available. By the “developed world,” we mean high-income countries with large
populations. We exclude countries with small populations such as Luxembourg, inflated incomes such as
Bermuda, and the oil-rich monarchies of the Middle East such as Qatar.
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
This figure shows the rate of incarceration and the rate of policing for a sample of countries in the developed
Chiffre 1.
monde. The United States is a world outlier in the rate at which it incarcerates its population. But it is not a developed
country outlier in the rate at which it employs police officers to patrol its streets.
iterature on mass incarceration: America is a developed-world outlier in its use of in-
carceration. Yet it also illustrates the much less-well-known fact that America is not at
all an outlier in its rate of policing. The United States has around 212 police officers for
every 100,000 total residents, which ranks it in the forty-first percentile of today’s de-
veloped world.
B. Given its level of serious crime, America has ordinary levels of incarceration but
extraordinary levels of under-policing
Yet this way of putting things in fact understates the magnitude of what has been mis-
understood. Chiffre 1 denominates the scope of incarceration and policing by population.
By that metric, the United States has an exceptionally high incarceration rate but a rela-
tively normal number of police officers given the total size of its population. But we think
it is more informative to denominate punishment and policing by the level of serious
crime in a country. By doing so, it is possible to make inferences about cross-national
differences in how countries manage serious crime.
Here one runs into some difficulties. For several reasons, it is challenging to compare
levels of serious crime across countries. Some countries criminalize acts that are perfectly
legal in others. Countries define many criminal acts, such as “assault,” differently from one
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another.7 And countries vary widely in their ability to measure the incidence of criminal acts.
The result is that many international patterns in reported data are obviously misleading. Données
collected by the United Nations Office on Drug and Crime, par exemple, suggest that the rate of
violent crime is higher in Belgium, France, and Canada than in El Salvador, Russia, or Rwanda.8
Our solution to this problem is to measure the rate of serious crime by the rate of homicides.
For the comparisons that anchor this piece—the United States to the developed
world—this immediately raises a problem. Franklin Zimring and Gordon Hawkins have ar-
gued that “[r]ates of crime are not greatly different in the United States from those in other
developed nations. . . . [Ô]ur extremely high rates of lethal violence are a . . . a distinct social
problem.”9 If America has more lethal violence than Europe, but not more crime, the relatively
high homicide rate in the United States would be a biased estimate of the rate of serious crime.
We have two kinds of reasons for thinking that this is wrong and that the homicide rate is
the right (or best) measure. D'abord, given the reliability issues that bedevil the police or victim
survey data on which Zimring and Hawkins and others rely, this is an area in which one has
to take some cues from theory and other data. Consider, alors, the following trilemma.
1. Concentrated disadvantage is the root cause of most serious crime in devel-
oped societies.
2. America has significantly more concentrated disadvantage than European
des pays.
3. America has the same amount of serious crime as other developed countries.
One of these three statements must be false. Criminological theory and existing social
science evidence strongly support (1).10 And we think there is good evidence to support
(2).11 The main theoretical reason to believe (3) is that the United States has far more guns
7
8
9
10
11
Zelia Gallo et al., Comparing Serious Violent Crime in the United States and England and Wales: Why It Matters,
and How It Can Be Done, in AMERICAN EXCEPTIONALISM IN CRIME AND PUNISHMENT 332 (Kevin R. Reitz ed., 2017).
See EMILY WIDRA & TIANA HERRING, PRISON POLICY INITIATIVE, STATES OF INCARCERATION: THE GLOBAL CONTEXT 2021
fig.3 (Sept. 2021), https://www.prisonpolicy.org/global/2021.html.
FRANKLIN E. ZIMRING & GORDON HAWKINS, CRIME IS NOT THE PROBLEM: LETHAL VIOLENCE IN AMERICA 3 (1999).
For a comprehensive survey, see ROBERT LILLY ET AL, CRIMINOLOGICAL THEORY: CONTEXT AND CONSEQUENCES (7th ed.
2019); see also Robert J. Sampson & William Julius Wilson, Toward a Theory of Race, Crime, and Urban
Inequality, in CRIME AND INEQUALITY 37 ( John Hagan & Ruth D. Peterson eds., 1995).
On America’s higher levels of disadvantage, see LANE KENWORTHY, SOCIAL DEMOCRATIC AMERICA (2014); ALBERTO
ALESINA & EDWARD GLAESER, FIGHTING POVERTY IN THE US AND EUROPE: A WORLD OF DIFFERENCE (2006). Sur
America’s spatial concentration of poverty and wealth, see Yonah Freemark et al., Varieties of Urbanism: UN
Comparative View of Inequality and the Dual Dimensions of Metropolitan Fragmentation, 48 POL. & SOC’Y 235
(2020), https://doi.org/10.1177/0032329220908966; Margaret Weir & Desmond King, Redistribution and the
Politics of Spatial Inequality in America, in WHO GETS WHAT? THE NEW POLITICS OF INSECURITY 188 (Frances
Rosenbluth & Margaret Weir eds., 2020); see also Nicola Lacey & David Soskice, Crime, Punishment and
Segregation in the United States: The Paradox of Local Democracy, 17 PUNISHMENT & SOC’Y 454 (2015), https://
doi.org/10.1177/1462474515604042.
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
per capita than European countries. But while firearm availability no doubt has some im-
pact on the level of violence, we think the effect is likely to be small. A large effect would be
difficult to square with other patterns across place, persons, and time. Consider, for exam-
ple, that while the United States has ten times as many guns as El Salvador, the homicide
rate there is roughly ten times higher than it is here.12 And that white, richer households
in the United States are much more likely to report owning a gun than Black, poorer
households.13 Given this and given the reasons to believe (1) et (2), we think (3) is most
likely to be the false leg of this trilemma.
The second reason—which does not depend on the first—is that homicide accounts
for a large proportion of the total harm caused by crime. Insofar as standard measures
of the crime rate give equal weight to each act criminalized by the state, they are concep-
tually meaningless. A society with a thousand petty larcenies and one murder has much
less serious crime than a society with a thousand murders and one petty larceny, yet the
raw crime rate would be the same in both. A meaningful measure thus has to account for
the relative seriousness, or harmfulness, of each action.
It is difficult to measure how harmful different kinds of crime are with any precision,
but the cost-of-crime literature furnishes a first approximation. Economists estimate the
social costs of different kinds of crime by asking people how much they would be willing
to pay to reduce their odds of being a victim of various offenses. Summarizing this liter-
ature, Aaron Chalfin and Justin McCary estimated that the cost of a murder is around
$7,000,000, the cost of an assault less than $40,000, the cost of a robbery around
$13,000, and the cost of motor vehicle theft around $6,000.14 Ainsi, even though homicide
is much less frequent than other crimes, it is judged so much more severe that it accounts
for about seventy percent of the total costs of crime. This means that it is a much better
estimate of the rate of serious harm than unweighted measures of the rate of crime. Chiffre 2
shows the same data, but this time denominated by homicide rather than by population.
One immediately sees something different. Now, America’s outlying level of incarcer-
ation looks relatively ordinary. Its prisoner/homicide ratio is a little higher than the
developed-world median, but not by much. No less stark is the fact that its
police/homicide ratio now appears exceedingly low. C'est, if denominated by the level
12
13
14
For data on firearm possession, see AARON KARP, SMALL ARMS SURVEY, ESTIMATING GLOBAL CIVILIAN-HELD FIREARMS
NUMBERS ( Juin 2018), https://www.smallarmssurvey.org/resource/estimating-global-civilian-held-firearms
-numbers.
See TOM SMITH & JAESOK SON, NORC, GENERAL SOCIAL SURVEY FINAL REPORT: TRENDS IN GUN OWNERSHIP IN THE
UNITED STATES, 1972–2014 (2015), https://www.norc.org/ PDFs/GSS%20Reports/GSS_Trends%20in%20Gun
%20Ownership_US_1972-2014.pdf.
Aaron Chalfin & Justin McCrary, Are U.S. Cities Underpoliced? Theory and Evidence, 100 REV. ECON. & STAT. 167
(2017). Note that the $7 million figure is drawn from estimates of the value of a statistical life; see also Mark A. Cohen et al., Willingness-to-Pay for Crime Control Programs, 42 CRIMINOLOGY 89 (2004). Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 89 AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 This figure shows the same prisoner and police data as is shown in Figure 1, but this time denominated by Figure 2. the level of homicide rather than the population. America’s outlying incarceration rate looks normal, given the level of serious crime. And now, the level of policing in the United States appears exceptionally low compared to other countries. of serious crime, America is not normally policed but rather under-policed. America has about one-ninth the number of police officers, per homicide, than does the median devel- oped country.15 Low clearance rates in America are not driven by lack of police focus C. One of the refrains of police reformers has been that American police are uniquely inefficient. Typiquement, when people argue that American people—and Black people, especially—have been under-protected and over-policed, they mean by this that the pri- orities of American police are skewed. Police focus too much on petty offenses and too little on serious crimes. This is the purpose of dwelling, Par exemple, on the fact that only four percent of a typical police department’s time is devoted to handling violent crime.16 15 16 The police/homicide ratio in the United States is about 43. The median police/homicide ratio in the developed world is 381. Jeff Asher & Ben Horwitz, How Do the Police Actually Spend Their Time?, N.Y. TIMES (Juin 19, 2020), https:// www.nytimes.com/2020/06/19/upshot/unrest-police-time-violent-crime.html. 90 Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 THE INJUSTICE OF UNDER-POLICING IN AMERICA This graph plots one measure of the clearance rate (homicide arrests/homicides) and two quantities into Figure 3. which it can be decomposed: the footprint of the police (police/homicides) and the rate at which any given police officer makes homicide arrests (homicide arrests/police). It shows that the clearance rate in the United States is substantially lower than the clearance rate in the median developed country and that this is a product of its exceptionally low police footprint, not the rate at which American police make homicide arrests (which is much higher than the rate in the median developed country). And indeed, it is true that in comparative context the police in the United States do not solve many serious crimes. America’s clearance rate is the lowest of all comparable countries, as Figure 3 shows.17 The median developed country records around one homicide-related arrest per homicide that occurs. In the United States, the figure is 0.56. Yet this does not seem to be, as reformers imagine, because police in the United States are exceptionally focused on nonserious offenses. Consider one measure of police focus: the number of homicide arrests made per police officer. The clearance rate (homicide arrests/homicide) is the product of police focus (homicide arrests/police) and the police footprint (police/homicide). The conventional view of policing in the United States 17 Here we measure the clearance rate by the proportion of homicides that result in an arrest, but one could also measure this by the proportion that result in a conviction. We do not do this here because the probability of a conviction is a function not just of the nature of policing but also of the court system. But even if measured by convictions per homicide, the United States has a lower clearance rate than the median developed country. 91 Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 suggests that the problem with America’s clearance rate is that footprint is high, but focus is low. En fait, as Figure 3 suggests, the converse is true: footprint is low, but focus is high. D. America combines low levels of certainty with high levels of severity, especially in its most disadvantaged communities One way of summarizing much of what we have shown so far is to observe that the United States seems to emphasize the severity of punishment over the certainty of sanc- tion. The exceedingly high prison/police ratio and the low level of police per homicide together suggest that the United States relies on long sentences rather than the sanction of arrest to control crime. One way to estimate certainty and severity more directly is to decompose the prisoner/homicide ratio into the ratio of arrests to homicide (estimating certainty) and the ratio of prisoners to arrests (estimating severity). Chiffre 4 plots these two ratios across the developed world. The result supports our judgment: the United States has relatively low levels of certainty but relatively high levels of severity. This graph plots measures of certainty (arrests/homicides), severity (prisoners/arrests), and their product Figure 4. (prisoners/homicides, or punitiveness) in the United States and the developed world, as well as for Black Americans specifically. It shows that the United States’ relatively ordinary levels of punitiveness reflect low levels of certainty and high levels of severity and that this combination is especially true for Black Americans. 92 Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 THE INJUSTICE OF UNDER-POLICING IN AMERICA One advantage of using homicides, arrests, and prisoners to measure these two concepts is that we can say something about how certainty and severity are distributed within the United States. As Figure 4 also shows, while all Americans suffer from an exceptional balance of certainty and severity, it is Black people in the United States who are especially subject to it. E. Police violence may be a symptom of under-policing rather than over-policing American police killed around 1,800 people in 2019. In the rest of the developed world, the average number of police killings is around 5 per year; the median is just 2. It seems intuitive that to reduce the level of police violence, we must reduce the footprint of the police. Yet cross-country comparisons suggest the opposite conclusion. As Figure 5 shows, there is a striking and negative cross-national correlation between the rate at which police kill civilians and the number of police officers per homicide. Countries with large numbers of police per homicide are countries in which police are much less likely to kill civilians, as compared to countries with fewer police per homicide. The countries of the developed world cluster on the bottom right of this graph (high police/homicide, low levels of police violence), while the countries of the developing world cluster toward the top left. The exception is the United States. This graph shows a negative correlation between the log of the number of police per homicide in a country Figure 5. and the log of the number of civilians killed by police. Most developed countries cluster in the bottom right of the graph. The United States, cependant, clusters with developing countries: it is much closer to Pakistan, Iran, and Burundi than Canada, Sweden, and Germany. We take this negative correlation as supporting our expectation that a United States with more policing would be a United States with fewer rather than more police killings. Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 93 AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 To be clear, a negative correlation is not proof that lower levels of police/homicide cause the police to be more violent. Several possible confounders might explain the coin- cidence of high levels of police killing and homicide (par exemple., inequality). It is even conceivable that the relationship could run in the reverse direction (high levels of police killing cause low public demand for policing). Because police killing is rare and our data are poor, causal inference is challenging. But there are some theoretical reasons to believe that this correlation is in fact causal. When violence overwhelms police resources, police make contact with only a small frac- tion of those who commit it. Under these circumstances, the civil treatment of a small fraction of offenders will have a negligible deterrent effect. En effet, the American combi- nation of small police footprint and brutality is reminiscent of the early modern state. As the opening pages of Foucault’s Discipline and Punish describe, when the infrastructural capacity of the state is low, exemplary but rare shows of spectacular force can be the most effective way to induce compliance with the law.18 In addition, in societies where police resources struggle to keep pace with rates of in- terpersonal violence and private citizens are therefore more likely to arm themselves, po- lice officers are more likely to behave brutally out of regard for their own interests. A severe sentencing regime such as ours could well exacerbate this dynamic since, under such a regime, there are stronger incentives for suspects to take extreme measures to evade apprehension and arrest. Ainsi, relying on severe and lengthy sentencing, rather than po- licing, to deter crime could make the job of policing more dangerous. And this might in turn make interactions with the police even more dangerous—for civilians. Bien sûr, these inferences are speculative. Further empirical research is needed to test them. But we think the negative cross-national correlation between police killings and the number of police officers per homicide, along with the theoretical reasons to believe those correlations might be causal, should serve as a warning sign. It is not at all clear that re- ducing the number of police officers on the street would reduce the pervasiveness of police violence and abuse. And it suggests to us, again, that the obstacles to police reform run deep. Reformers often argue that police officers should be trained as “guardians” rather than “warriors.”19 But the training protocols that instill and entrench the warrior mindset may just be symptoms of under-policing. 18 MICHEL FOUCAULT, DISCIPLINE AND PUNISH: THE BIRTH OF THE PRISON (Alan Sheridan trans., Vintage Books 2012) 19 (1975); see also PETER BALDWIN, COMMAND AND PERSUADE: CRIME, LAW, AND THE STATE ACROSS HISTORY (2021). “Law enforcement culture should embrace a guardian—rather than a warrior—mindset to build trust and legitimacy both within agencies and with the public.” PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING, FINAL REPORT OF THE PRESIDENT’S TASK FORCE ON 21ST CENTURY POLICING (2015). 94 Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 THE INJUSTICE OF UNDER-POLICING IN AMERICA II. WHAT SHOULD BE DONE? The United States is ridden with much more serious crime than other comparably wealthy societies. It responds to this exceptionally high level of serious crime with an exceptional combination of relatively small police forces and comparatively long sentences. Et, tell- franchement, this regime reaches its apogee in the way it treats most disadvantaged people. What is to be done? The comparative observations we have made above suggest an obvious hypothesis. Perhaps the United States, like the rest of the developed world, ought to emphasize polic- ing and penal certainty rather than incarceration and penal severity.20 Perhaps the United States ought to shift resources from incarceration to policing until the balance between the two looks more like the balance in the rest of the developed world. The implications of such a move—which we call the First World Balance—would be dramatic. The United States today has almost three times as many prisoners as police officers. If it raised no revenue but simply used the money saved by cutting prison populations to hire police officers until the ratio was the same as the ratio in the developed world (à propos 3.4 times as many police officers as prisoners), the new United States would have about 370,000 prisoners and 1.1 million police officers. C'est, the First World Balance, if implemented in the United States, would be a society with about 1.9 million fewer prisoners and almost half a million more police officers.21 As we note later, this new United States would not be a dystopian police state. Moving to the First World Balance would in fact align the rate of policing in the United States with the rest of the developed world. Mais, bien sûr, to note that moving to the First World Balance would align the United States with other countries is not to have shown that this would be a good thing. One cannot reason to normative policy conclusions from comparative empirical observations alone. To make these arguments, one has to connect fact to value. Would the First World Balance be justified? 20 21 Others have proposed something similar. Voir, par exemple., William J. Stuntz, Law and Disorder, 14 WKLY. STANDARD, Fév. 23, 2009, reprinted in Stuntz: Use Federal Dollars to Put More Cops on Streets, HARV. L. TODAY (Fév. 24, 2009), https://today.law.harvard.edu/stuntz-use-federal-dollars-to-put-more-cops-on-streets/ (last visited Mar. 14, 2022); Mark A.R. Kleiman, Toward Fewer Prisoners & Less Crime, 139 DAEDALUS 115 (2010); PHILIP J. COOK & JENS LUDWIG, MORE PRISONERS VERSUS MORE CRIME IS THE WRONG QUESTION 8 (2011). We have learned from these and related arguments, but we believe no one has yet thought through all the normative and empirical issues that the proposal raises. This calculation is based on the number of prisoners and police officers in the United States in 2019, which is the latest date for which we have data on all the relevant variables in this paper (arrests, homicides, prisoners, police). It accounts for the fact that the addition of police officers will increase the number of petty arrests, some fraction of which will result in additional incarceration. Note that since the number of prisoners has declined considerably between 2019 and the date of writing (as of March 2022, the prison population in the United States was around 1.7 million), the specifics are a little different today, though the principle is the same. Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 95 AMERICAN JOURNAL OF LAW AND EQUALITY | ISSUE 2 | 2022 To understand our answer, it will be helpful to note three points about our approach. D'abord, it was due to our shared interest in answering questions like this one that the two of us began to work together. Sociologists write about normatively laden questions but are taught to refrain from considering the normative implications of their arguments. It is no surprise that many of them do anyway, since it is those implications that give their voca- tion meaning. But social scientists’ lack of training in moral and political philosophy means that these conclusions are too often founded on ideology or intuition rather than rigorous normative argument. Some philosophers are interested in applying moral and political theory to puzzles that bear on real-world problems. But a lack of social scientific training leads many of them to seek answers to these questions (or versions of those ques- tion) that do not require empirical inputs. Ainsi, our aim is to combine empirical evi- dence and social theory with explicit normative argument. Deuxième, where possible, we strive to be as ecumenical as possible. En général, we do not attempt to identify the correct theory of interpersonal morality or political justice (or the correct theory of “what causes crime”) before drawing out the specific implications of just that theory. Plutôt, we consider the implications of a wide range of frameworks. In gen- eral, we find that first-order disagreements do not have dramatic implications for policy, which suggests that wringing our hands about these first-order issues may not always be worth the energy it consumes. We think that the combination of empirical and normative claims one would have to endorse to reject our proposal are incongruent—they represent various mixtures of ideas that effectively nobody accepts. Enfin, our case for the First World Balance should be understood as our answer to a narrowly specified question about how the United States ought to apportion a fixed pool of penal spending. Many readers will wonder, understandably, whether we stack the deck in our favor by posing the question this narrowly. Why a fixed pool of resources? And why force a choice between prisons and police, when various kinds of social or non-penal al- ternatives are superior to both? We say more about why we specify the question in this way in our forthcoming book What’s Wrong with Mass Incarceration, but some explana- tion is in order here. We think that in the long run, a significant expansion of social policy would reduce crime by addressing its root causes and in turn reduce the need and demand for both policing and imprisonment. In other work, we argue that any coherent conception of dis- tributive justice or economic efficiency entails that the United States should expand social policy. But a significant expansion of social policy requires significant redistribution from rich to poor. Redistribution of this magnitude would require the poor to wield some kind of leverage over the rich.22 Given the collapse of the American labor movement and the 22 “In a capitalist democracy the probability of a development in the direction of economic democracy depends primarily on changes in distribution of power resources.” WALTER KORPI, THE DEMOCRATIC CLASS STRUGGLE 4 (1983); see also Adaner Usmani, Democracy and the Class Struggle, 124 AM. J.. SOCIO. 664 (2018). 96 Téléchargé depuis http://direct.mit.edu/ajle/article-pdf/doi/10.1162/ajle_a_00030/2038897/ajle_a_00030.pdf by guest on 07 Septembre 2023 THE INJUSTICE OF UNDER-POLICING IN AMERICA electoral fracturing of the American working class, we doubt we will see anything like this soon. Our aim in this essay is to say something useful about what should be done in the nonideal world in which we live—not just in the ideal world in which we would like to live. To say something about that question, we limit ourselves to options that are revenue-neutral. But why consider only prisons and police? Why couldn’t the government redistribute the existing pool of money from prisons and police to social policy, just as many reformers have demanded?23 As we argue in What’s Wrong with Mass Incarceration, this is because social policy is bedeviled by what we call the efficiency-feasibility paradox. To address the root causes of crime would be to meaningfully change the opportunity structure for the most dis- advantaged people in America. To do this by expanding untargeted, universal social programs would require significant resources, since the vast majority of beneficiaries are not America’s most disadvantaged people. Because penal spending is hyper-targeted in a way that social spending is not, it costs about $300 billion a year to run the developed world’s most extensive
penal state but something like $3 trillion to run its most anemic welfare state.24
Now, there is good evidence that social programs that are hyper-targeted at the truly
disadvantaged—particularly early childhood interventions and high-quality preschool
programs—can be efficient at reducing crime.25 But the same thing that makes these
hyper-targeted social programs efficient also makes it politically infeasible for govern-
ments to fund them at scale. The more targeted the beneficiaries, the more certain we
can be that introducing these programs will provoke the resentment of the near-poor
and middle-class. Ainsi, the efficiency-feasibility paradox: untargeted social policy is po-
litically feasible but inefficient for crime control, while hyper-targeted social policy can be
efficient but is infeasible.
Donc, it is not feasible to address the root causes of crime with revenue-neutral changes
to public policy. Yet some might argue that we should divest from policing and incarcer-
ation even if this would result in more crime.26 Harsh policing and concentrated
23
24
25
26
Voir, par exemple., Keeanga-Yamahtta Taylor, We Should Still Defund the Police, NEW YORKER (Aug. 14, 2020), https://www
.newyorker.com/news/our-columnists/defund-the-police; Michelle Alexander, America, This Is Your Chance, N.Y.
TIMES (Juin 8, 2020), https://www.nytimes.com/2020/06/08/opinion/george-floyd-protests-race.html; FELICIA
GOMEZ ET AL., A ROADMAP TO COMMUNITY SAFETY: A GUIDE FOR LOCAL LAWMAKERS (2021), https://civilrightscorps
.org/wp-content/uploads/2021/10/Local-Policy-Guide.pdf.
For a longer explanation of this point, see John J. Clegg & Adaner Usmani, The Economic Origins of Mass
Incarceration, 3 CATALYST: J.. THEORY & STRATEGY 9 (2019).
John J. Donohue & Peter Siegelman, Allocating Resources Among Prisons and Social Programs in the Battle Against
Crime, 27 J.. LEGAL STUD. 1 (1998); James J. Heckman & Ganesh Karapakula, The Perry Preschoolers at Late Midlife:
A Study in Design-Specific Inference (Nat’l Bureau of Econ. Rsch., Working Paper No. 25888, 2019), https://www
.nber.org/papers/w25888.
“And yet this misses the point of the prison crisis: you cannot relieve the suffering of the prison population
without increasing safety risks for the rest of us. And increasing those risks, from a moral standpoint, is the
right thing to do.” Christopher Glazek, Raise the Crime Rate, N+1 (2012), https://www.nplusonemag.com/issue
-13/politics/raise-the-crime-rate/.
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imprisonment impose deep psychological, symbolic, politique, and economic burdens on
disadvantaged communities, rather than merely imposing physical injuries on individuals.
Concentrated incarceration in disadvantaged neighborhoods can weaken informal social
controls, sow distrust in communities, undermine civic organization, and depress political
participation.27 Abusive and omnipresent policing, similarly, can entrench racial residen-
tial segregation and sow “legal cynicism.”28 And arrest records can sometimes be a debil-
itating disadvantage in the labor and rental housing markets, despite the fact that many of
those who are arrested ultimately have their charges dismissed.29 These burdens are all
disproportionately borne by the disadvantaged.
Yet the issue with citing the many negative consequences of incarceration and policing
to sanction a rise in crime is simple: serious crime has those very same consequences.
Rampant crime can suppress social mobility and exacerbate poverty and concentrated dis-
advantage at the community level.30 Living in a violent neighborhood reduces people’s
incentives to do things that are important for upward mobility, social cohesion, civic or-
ganization, and physical health.31 Neighborhood violence can be traumatizing and stress-
ful, causing lack of sleep and impeding children’s cognitive development, attention, et
impulse control.32 Businesses are wary of investing in neighborhoods where crime is rife,
leaving residents without access to basic retail services, including groceries and healthy
food options. Property values drop, reducing funding for local public schools and other
municipal services. Upwardly mobile residents of high-crime neighborhoods often move
27
28
29
30
31
32
Voir, par exemple., TODD CLEAR, IMPRISONING COMMUNITIES: HOW MASS INCARCERATION MAKES DISADVANTAGED COMMUNITIES
WORSE (2007); SANDRA SMITH, LONE PURSUIT: DISTRUST AND DEFENSIVE INDIVIDUALISM AMONG THE BLACK POOR (2010).
Voir, par exemple., Monica Bell, Police Reform & the Dismantling of Legal Estrangement, 126 YALE L.J. 2054 (2017); Monica
Cloche, Anti-Segregation Policing, 95 N.Y.U. L. REV. 650 (2020); Monica Bell, Located Institutions: Neighborhood
Frames, Residential Preferences, and the Case of Policing, 125 AM. J.. SOCIO. 917 (2020); AMY E. LERMAN & VESLA
M.. WEAVER, ARRESTING CITIZENSHIP: THE DEMOCRATIC CONSEQUENCES OF AMERICAN CRIME CONTROL (2014).
Voir, par exemple., Eisha Jain, Arrests as Regulation, 67 STAN. L. REV. 809, 826–44 (2015).
Voir, par exemple., Gerard Torrats-Espinosa & Patrick Sharkey, The Effect of Violent Crime on Economic Mobility, 102 J..
URBAN ECON. 22 (2017).
Voir, par exemple., DAVID HARDING, LIVING THE DRAMA: COMMUNITY, CONFLICT, AND CULTURE AMONG INNER-CITY BOYS 41–42
(2010); Susan Clampet-Lundquist et al., Moving Teenagers Out of High-Risk Neighborhoods: How Girls Fare Better
than Boys, 116 AM. J.. SOCIO. 1154 (2011).
Voir, par exemple., Gerard Torrats-Espinosa, Crime and Inequality in Academic Achievement Across School Districts in the
États-Unis, 57 DEMOGRAPHY 123 (2020); Seth Gershenson & Erdal Tekin, The Effect of Community Traumatic
Events on Student Achievement: Evidence from the Beltway Sniper Attacks, 13 EDUC. FIN. & POL’Y 513 (2018);
Patrick T. Sharkey, The Acute Effect of Local Homicides on Children’s Cognitive Performance, 107 PROC. NAT’L
ACAD. SCIS. 11733 (2010); Patrick T. Sharkey et al., The Effect of Local Violence on Children’s Attention and
Impulse Control, 102 AM. J.. PUB. HEALTH 2287 (2012); Lauren Hale et al., Perceived Neighborhood Quality,
Sleep Quality, and Health Status: Evidence from the Survey of the Health of Wisconsin, 79 SOC. SCI. & MED. 16
(2013); Jennifer A. Heissel et al., Violence and Vigilance: The Acute Effects of Community Violent Crime on Sleep
and Cortisol, 89 CHILD DEV. 323 (2018).
98
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
dehors, which exacerbates the concentration and clustering of disadvantage in those areas.33
And just as a criminal conviction or an arrest record can be a stigma on the job market,
victims of crime can be stigmatized in extremely disadvantaged communities, where mu-
tual respect can become a zero-sum game.34
Given that serious crime causes the same kinds of problems as abusive policing and
concentrated incarceration, we argue that state and local governments face an inevitable
and tragic trade-off between the harms of crime, punishment, and policing. The least well-
off have to bear the brunt of these trade-offs, no matter how state and local governments
choose to make them. The fact that trade-offs of this nature are inevitable is itself an in-
justice. It is an indictment of our society. But we think some ways of balancing these
harms are more just and more efficient than others.
Ainsi, we think that the question before us is how to strike the right penal balance.
What ought to be done about the level of incarceration and the level of policing in today’s
États-Unis? Where, dans le 2 × 2 space plotted above in Figure 1, should the United
States lie?
III. WELFARE
Consider, first, how a consequentialist might approach this question. On that view, le
state should decide how to strike the balance between incarceration and policing by choos-
ing that point in this 2 × 2 space that maximizes aggregate welfare. How should we expect
different ways of striking the balance between policing and incarceration to affect people’s
well-being in the aggregate?
Consider what we take to be the first-order welfare consequences of moving to any
point in this space: what it would imply for the level of homicide and crime, the number
of people in prison, and the number of people killed and arrested by the police. What
would happen to each of these if the United States were to implement the First World
Balance?
D'abord, homicide and other kinds of serious crime would decline. The empirical litera-
ture on deterrence is unequivocal that increasing the size of police forces is a much more
efficient way to prevent crime than increasing the length of prison sentences for those who
are apprehended and convicted.35 The explanation for this asymmetry is well established
in behavioral psychology and economics. People do not make decisions the way rational
33
34
35
See WILLIAM JULIUS WILSON, THE DECLINING SIGNIFICANCE OF RACE : BLACKS AND CHANGING AMERICAN INSTITUTIONS
(2d ed. 1980); WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC
POLICY (1987).
ELIJAH ANDERSON, CODE OF THE STREET: DECENCY, VIOLENCE, AND THE MORAL LIFE OF THE INNER CITY (2000).
Aaron Chalfin & Justin McCrary, Criminal Deterrence: A Review of the Literature, 55 J.. ECON. LITERATURE 5 (2017).
99
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choice models imply. Rather than calculating the expected utility of the options they are
choosing between, people tend to weigh the immediate consequences of their actions
much more heavily than consequences in the distant future.36 It is by definition possible
to add to the length of a prison sentence only on the back end, in the future. So it is to be
expected that increasing the probability of arrest and conviction would do more to deter
crime than increasing sentence lengths. Today in the United States, a single dollar spent
on policing is almost sixteen times more effective at deterring crime than a dollar spent on
incarcerating additional prisoners. Our best guess is that the First World Balance would be
a world of a little more than four thousand fewer homicides (and substantially less crime
more generally).37
Deuxième, the costs to aggregate well-being imposed by mass incarceration would be sub-
stantially smaller. Whatever its general consequences, prison is extremely detrimental to
the well-being of prisoners. It is difficult to put a precise number on this suffering. Mais
suppose one thinks that a year in prison is even one-half as good as a year spent outside.
On this view, a reduction of two million in the prison population would be the equivalent
of saving one million years of life (roughly, fifteen thousand lives, assuming a life expec-
tancy of about sixty-five). The smaller the exchange rate (par exemple., if living for a year in prison
generates only one-tenth of the utility of living for a year outside prison, rather than one-
half ), the larger the welfare consequences of decarceration.
Enfin, consider the costs of policing. D'une part, a world of more policing
would, perhaps unsurprisingly, be a world of more arrests. Based on recent work by
Chalfin, our best guess is that the First World Balance would be a world of almost 7.8 mil-
lion more arrests.38 On the other hand, for the somewhat speculative reasons we gave
36
Amos Tversky & Daniel Kahneman, Availability: A Heuristic for Judging Frequency and Probability, 5 COGNITIVE
PSYCH. 207 (1973).
37 We base these calculations on the elasticities reported by Aaron Chalfin and Justin McCary (who reported the
elasticity of homicide with respect to policing at -0.67) and John Donohue (who estimated an elasticity of
homicide with respect to incarceration of -0.05 à -0.15). See Chalfin & McCrary, supra note 14; John J.
Donohue, Assessing the Relative Benefits of Incarceration, in DO PRISONS MAKE US SAFER? (Steven Raphael &
Michael A. Stoll eds., 2009). Because David Roodman has argued that the -0.15 estimate is too optimistic
about the crime-reducing effect of incarceration at today’s levels, we choose the lower estimate from Donohue.
David Roodman, The Impacts of Incarceration on Crime (Sept. 25, 2017), https://papers.ssrn.com/abstract
=3635864. Given the fact that the marginal dollar today in the United States purchases a slightly larger
percentage increase in policing than in incarceration (1.17 times), these elasticities imply that a dollar spent on
policing is 15.7 times more efficient than a dollar spent on incarceration (-0.67/-0.05 * 1.17 = 15.7). Full
calculations and code to replicate all results discussed in this section are available at https://github.com
/ausmani23/miwhatswrong.
Aaron Chalfin et al., Police Force Size and Civilian Race, AM. ECON. REV.: INSIGHTS 139, https://www.aeaweb.org
/articles?id=10.1257/aeri.20200792. To calculate this, we take the mean of the two types of estimates they report,
which implies that each additional police officer adds 15.6 arrests.
38
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
earlier, we guess that a world of more policing would be one of less police violence (à propos
nine hundred fewer people killed by the police).39
Consequentialists have to propose some way to weigh these consequences against each
other. This is not straightforward, but however one chooses to do it, the deck seems
stacked against the status quo. For the additional arrests to be reason to rule against
our proposal on consequentialist grounds, the costs of these arrests to aggregate well-being
must outweigh the sum of the benefits of less crime and less incarceration (and possibly
fewer police killings). We think this is implausible on almost any accounting.
En fait, the first-order welfare costs of increased arrest are probably smaller (in abso-
lute value) than any one of the benefits of the First World Balance considered in isolation.
Suppose, par exemple, that the average arrest is about as bad as three days in prison. (La plupart
arrests do not last nearly this long, so this stacks the argumentative deck against our pro-
posal.) On this assumption, 7.8 million arrests in a year is the equivalent of roughly
sixty-five thousand prisoner-years (65,000 prisoner-years = 7,800,000 arrests * 3/365).
This is not even five percent of the benefits of decarceration. Plus loin, if we convert
prisoner-years to lives at the rate given above, ces 7.8 million arrests would be the equiv-
alent of about five hundred lives (65,000 * 0.5 * 1/65)—substantially less than the four
thousand lives we estimate would be saved by the reduction in homicide.
One might object that the indirect psychic and social costs of these almost eight mil-
lion additional arrests would outweigh the benefits of the substantial reduction in serious
crime we think the First World Balance would yield. Yet those who make this argument
would have to give compelling reasons to think that these nth-order costs outweigh the
nth-order psychic and social benefits of less crime. As we have argued above, it seems
strange to single out the nth-order costs of one of these to the exclusion of the others.
Serious crime, abusive policing, and concentrated incarceration seem to all have the same
kinds of harmful consequences.
Ainsi, from a consequentialist perspective, we think that the First World Balance is
justified. In What’s Wrong with Mass Incarceration, we show the robustness of our pro-
posal to a range of alternative assumptions. The only assumption that yields a substantially
different verdict requires an extreme pessimism about the effect of expanding police on
crime that is out of sync with the empirical literature.
IV. PRIORITIZING THE DISADVANTAGED
Many argue that public policy should not aim simply to maximize aggregate well-being; it
must also be sensitive to how the benefits and burdens of society in general, et le
39
Note that if we are wrong and police violence were to increase linearly with the number of police officers (c'est à dire., un
increase of about 1,300 killed), the welfare costs are still substantially smaller than the welfare benefits of the
decline in crime. And thus, as we note again below, our conclusions are unaffected.
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criminal legal system in particular, are distributed. Consider, Par exemple, what Parfit calls
the “Priority View.”40
The Priority View: Benefiting people matters more the worse off these people are.41
One corollary of the Priority View (or “prioritarianism”) is that burdening people mat-
ters less the better off those people are.
The burdens of how governments choose to strike the balance between policing and
incarceration—no matter how they choose to do so—will be disproportionately borne by
the disadvantaged. Victims of crime, victims of police abuse and brutality, and those be-
hind bars all tend to be drawn disproportionately from the ranks of the least well-off. Ils
are disproportionately Black and disproportionately poor. Those who are most likely to be
victims of the worst kinds of crime—in particular, homicide—are the same people who are
most likely to be abused, brutalized, or killed by the police. And they are also those who
are at the highest risk of serving time in prison.
But these groups are not identical. As Figure 6 shows, Black people are more dispro-
portionately overrepresented among murder victims, the incarcerated, and those arrested
for serious offenses than they are in the ranks of those who have been arrested for petty
offenses or killed by the police in any given year. En fait, Black people seem to be under-
represented among those who report ever having been arrested in their lifetimes.42 High
school dropouts are far more disproportionately overrepresented in the incarcerated pop-
ulation than they are among those who have been arrested in their lifetimes. They make
up fifty-four percent of the former group but only fourteen percent of the latter (and ten
percent of the total adult population).
The Priority View thus lends further support to the case for the First World Balance.
The burdens of the status quo—under which the United States leans so heavily on long
prison sentences relative to policing—fall more disproportionately on Black people and
the poor, and especially the Black poor, than do the benefits. Shifting to the First World
Balance would seem not only to reduce the burdens associated with the penal system over-
all but also to increase the benefits. Because it would reduce the number of prisoners, vic-
tims of crime and homicide, those arrested for serious offenses, and those killed by the
police, it would also shift the burdens from a more disproportionately disadvantaged pop-
ulation to the somewhat better-off.
40
41
42
Derek Parfit, Equality or Priority (The Lindley Lecture, University of Kansas, 1995).
Id. à 19.
The ANES is missing data on about sixteen percent of respondents. We ignore these respondents, but it would be
better to impute these missing observations, since they are unlikely to be missing at random. But even if one
assumes that every missing Black respondent has been arrested, the proportion of the “ever arrested” who are
Black barely changes (10.6% plutôt que 10.3%).
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
This figure shows the race, class, and race × class composition of different groups in the United States based
Chiffre 6.
on data from the Survey of Prison Inmates, the American National Election Studies, Fatal Encounters, the FBI and the
Supplementary Homicide Report. It shows that the “ever arrested” are the least disadvantaged population of the different
subgroups that figure in the First World Balance.
We can thus summarize the prioritarian argument for the First World Balance as
follows.
Prioritarian Argument
AP. Burdening people matters less the better off those people are.
1. The burdens of incarceration and homicide are more disproportionately
borne by the disadvantaged than the burdens of arrest and police violence.
2. Donc, we should weigh the burdens of incarceration and homicide more
heavily than the burdens of arrest and police violence.
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3. The First World Balance lightens the burdens of incarceration and homicide
(and possibly police violence) while increasing the burdens of arrest.
∴ The Priority View strengthens the case for the First World Balance.43
V. CONCLUSION
Consider what we have argued in this essay. We have noted that the United States, uniquely
among developed countries, leans especially heavily on penal severity to the neglect of penal
certainty. This is reflected in the fact that it has roughly three prisoners for every police
officer, while every other developed country has about 3.5 police officers for every prisoner.
The United States would have to reduce the incarcerated population by around 2 million
people and hire half a million more police officers to bring its prisoner-to–police officer
ratio in line with the rest of the world—what we called the First World Balance.
We first defended the First World Balance on consequentialist grounds. We suggested that
it would be a substantially more efficient way to use the pool of resources America currently
devotes to penal spending. The human, sociale, and economic costs of incarceration would be
substantially reduced; homicide and other serious crime would decline; and police violence
might also drop. The main downside of our proposal would be the costs associated with a
significantly greater number of arrests. But these costs pale in comparison to the benefits.
We then showed that arrests affect a more advantaged group of people than crime or
incarceration. (Victims of police violence tend to be somewhat less advantaged than the
average person who is arrested but somewhat more advantaged than those who are incar-
cerated or victims of homicide.) From a prioritarian perspective, according to which we
have stronger reasons to confer benefits on people the worse off they are, this finding
simply strengthens the case for the First World Balance.
In What’s Wrong with Mass Incarceration, we offer a more wide-ranging normative
case for the First World Balance than we can in this essay. We think that the First World
Balance is preferable on a variety of grounds. But we do think that some forms of civil
libertarianism probably rule out our proposal.
Some civil libertarians might favor radical decarceration, without any increase or per-
haps even some reduction in police force size, on the grounds that state-imposed violence
or harm is morally different from—and worse than—interpersonal violence committed by
private individuals.44 An extreme version of this position would hold that no amount of
interpersonal violence could ever justify the use of coercive force by the state. But a state
43
44
This conclusion follows from (1)–(3), regardless of whether one thinks police violence is likely to increase linearly
with police force size, because of premise (2).
Voir, par exemple., PAUL BUTLER, CHOKEHOLD: POLICING BLACK MEN 131 (2018) (writing of “a crucial difference between the
violence that the police does to Black people versus the violence that African Americans do to each other”).
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THE INJUSTICE OF UNDER-POLICING IN AMERICA
completely lacking in coercive power would be unable to enforce tax law and policy and
thus unable to collect revenue. Without revenue, governments could not provide public
goods or a social safety net. So this extreme form of civil libertarianism is essentially a kind
of political anarchism. And we doubt many are in fact committed to this brand of anarchism.
Bien sûr, even if there is no categorical moral distinction between harm that the state
itself does and harm it merely allows private citizens to do to one another, one might
think that the former is worse than the latter as a matter of degree. We think there are
reasons to be skeptical of even this scalar distinction between the state’s “doing” and “al-
lowing” of harm. But we cannot defend a view about these first-order moral questions
ici. In What’s Wrong with Mass Incarceration, we show that one would have to weigh
state harm much more heavily than interpersonal harm to reach different conclusions. Dans
our view, this fact highlights the same tension in the more moderate civil libertarian po-
sition that we see in the anarchist view. As we argued above, when serious crime runs
unchecked in poor neighborhoods, it has any number of negative nth-order consequences
on political, sociale, cultural, and economic life. So in order to sustain the moderate civil
libertarian position, one must, like the anarchist, think that the “negative liberty” to be free
from state-imposed violence or coercion is more important than the promotion of
equality—including democratic or political equality.
The appeal of this civil libertarian position to those on the left seems especially puz-
zling in light of the fact that, by international standards, the United States under the First
This figure shows the same data we showed earlier, but now with the First World Balance included. As it
Chiffre 7.
illustrates, the new United States could hardly be considered a police state by these standards. The number of police
officers per capita would be well within the range found in the rest of the developed world.
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World Balance could hardly be considered a police state. As Figure 7 shows, the police-
per-capita ratio in this counterfactual United States would still be roughly equivalent to
the police-per-capita ratio in today’s Spain and broadly in line with the rest of the devel-
oped world. En effet, even after the increase in policing and the decline in homicide, là
would only be about eighty police officers per homicide in the United States. This would
still be the lowest police/homicide ratio in the developed world (almost one-fifth the
median value). Ainsi, even after this dramatic shift of resources from incarceration to
policing, one could make the case that it would still be relatively under-policed.
Note also that under the First World Balance, the United States would be a society of
about three hundred thousand prisoners and roughly fifteen thousand homicides. Ce
would make it the least punitive society in the developed world; the prisoner/homicide
ratio in this world would be about twenty, lequel, as Figure 2 shows, would be the lowest
among advanced capitalist countries. So even if the First World Balance is justified, un
might wonder whether it is feasible and thus worthy of the kind of normative analysis and
defense we have given it.
We admit that there are significant obstacles to changing the balance that state and
local governments strike between the arms of law enforcement. Il y a, après tout, raisons
that the United States has evolved its present-day penal balance. But our view is that the
First World Balance is nonetheless substantially more feasible than the kinds of things that
reformers tend to demand today. In the highly unequal, oligarchic America in which we
live at present, calls to reallocate a fixed pool of revenue will meet with less powerful op-
position than calls to tax the rich. That is why we assume it is infeasible to expect the
United States to build a generous welfare state in the mold of the Scandinavian social de-
mocracies. Proposals to use hyper-targeted social policy to address the root causes of
crime are similarly infeasible. As we have argued, to be efficient, a social policy interven-
tion must meaningfully transform the opportunity structure of those most likely to com-
mit crime. Yet an intervention that transforms the opportunities of only those in this
position will upend the incentive structure of unequal societies, thus gumming up the
economy and eliciting political opposition.
In any case, readers should not think of the First World Balance as an alternative to
social democracy. Justice and efficiency demand that state and local governments in the
United States balance the allocation of resources between the two arms of law enforcement
radically differently from the way they do at present. That would be true even if this so-
ciety were more equal. En effet, we think it is telling that more equal societies do precisely
what we have defended in this essay.
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