This article shows how incentives for local officials that you can affect – rather than subconscious biases of largely well-meaning police officers you cannot affect – are the main cause and potential solution to problems of systemic racism in America.
Following the homicide of George Floyd, American policymakers are moving toward tougher regulation and oversight of police officers. However, individual racist police officers are likely not the central cause of racism in our criminal justice system. Systemic racism is the product of flawed institutions, not the intentions of individual actors. The good news is you, every one of you, can take simple steps to impact our racist criminal justice system.
Racist institutions more than racist officers
Racial discrepancies in stops, arrests, convictions and criminal sentences provide clear evidence of two things. First, our criminal justice system is systemically racist against Black and Hispanic people. And, second, the problem extends beyond racist police officers (who do not make prosecutorial, sentencing, or policymaking decisions).
Most police officers are drawn into law enforcement by a desire to serve their communities rather than exercise authority over them. Maybe because they do not see themselves as racist, many police officers have lashed out against peaceful protesters, drawing further focus on problematic officers who attack unarmed civilians. Despite this, exceptional officers have avoided these defensive reactions, instead achieving their mission of securing, comforting and supporting their communities by marching, kneeling and talking with protesters. However, when compassionate gestures are followed by tear-gassing, such acts are cheapened and we are reminded they are no replacement for reform.
While police officers are on the front lines of the criminal justice system, and they act on the implicit biases pervasive in our society, the problem is larger than racist officers.
Understanding incentives so we can combat racism
Consider the following systems of incentives.
Mayors and sheriffs running for election or reelection want to drive up arrest rates to make sure they appear tough on crime rather than weak on crime. Prosecutors face the same incentives, driving them to pursue high conviction rates rather than the efficient use of criminal justice resources.
Meanwhile, judges make sentencing decisions while facing the victims of the crimes, but do not have to answer to the broader society funding the resulting prison sentences. Criminal sentences are systematically driven toward harshness and become harsher around judicial elections. Legislators exhibited similar tendencies, passing bipartisan crime bills in the run-up to elections in the 1980s and 1990s.
The last several decades witnessed the rise of a market-driven media focusing on salient crimes and lenient punishments. In response, oversimplified arguments and erroneous data drove American officials to build the largest prison population and highest incarceration rate in the world. However, the reason this system was able to spin out of control was racism, which may be why more inclusive societies have lower incarceration rates.
Inclusion v. Incarceration
As illustrated in the above visualization, each increase in country rank by Social Progress Index is associated with an average decrease in approximately one rank by incarceration rate (beta = -0.97; p < 0.05). Because incarceration requires economic resources, this analysis includes only the 50 most developed countries and is weighted by Human Development Index. This visualization shows how, compared to the United States, most developed countries with a higher ranking (lower numerical output) on the Social Progress Index also have a much lower ranking (higher numerical output) in world incarceration rates.
How racism made America the #1 jailer in the world
Tough-on-crime has been a successful campaign strategy because voters do not believe they are locking up their own friends and family. As one criminal justice reform advocate noted, “It is hardly conceivable that the nation would tolerate a situation wherein one in three young white men were under criminal justice control.”
Because voters see criminals as “others,” they can support unrestrained toughness without considering the costs to society as a whole or the widespread disruption to communities targeted by the criminal justice system.
America is different from other developed countries because our path-dependent system has depicted African Americans as criminals since the time of convict leasing. These cultural beliefs are so entrenched that they tend to be also adopted by African Americans who originally saw tough-on-crime policies as fighting gangs rather than fighting their own communities.
This is why portraying racial minorities as criminals, cheats and rapists has been an effective tool in political campaigns. As a result, the unspoken promise of tough-on-crime platforms is they will be tough on others, not you.
Where we stand, and what you can do
The above system regularly sends police officers out to issue many citations, focusing on young African American and Hispanic men as the group with the least power to fight them legally. Racial equity training, stricter restrictions and increased citizen oversight will not stop racist practices because they do not address the underlying incentives.
People have difficulty conceptualizing systemic problems, which make them difficult to fight. By describing these systems, this article provides the following path forward for undoing racism in our criminal justice system:
First, pay attention to local elections. While federal policymakers have embraced criminal justice reform, mayors, sheriffs, prosecutors and judges continue to face few restraints against tough-on-crime platforms. Support officials committed to criminal justice reform measures, such as alternatives to arrest-based interventions and lengthy sentences. Until now, reform-minded local officials have been labeled by opponents as “soft on crime.” Instead, programs such as treatment courts, diversion programs, deferred prosecution agreements and non-arrest-based community policing, should be promoted as being “smart on crime.”
Second, contact local officials. Though systemic racism appears to be a difficult and intractable problem, prosecutors and law enforcement executives are increasingly engaged in social media. Ask them why they are focusing on arrests and crime-fighting when most police calls are interpersonal disputes and dispute resolution skills are a more promising method for addressing them than arrests.
These smart-on-crime policies should be embraced wholeheartedly. For example, if we send officers into at-risk communities with the intention of building relationships, but continue to evaluate them by arrest rates, we will only be making the problem worse. Also, if prosecutors create a deferred prosecution and diversion programs but are still reelected based on the size of their caseloads, they will continue to increase citations against people who will fight them the least.
Contact your local prosecutors, mayor, sheriff and police chief and demand smarter action, not tougher action. Because, the more we demand our criminal justice system to appear to be tough, the more it will victimize the least valued members of our society.
Nathan Witkin is a former criminal defense attorney and current independent researcher.
Nathan Witkin is a second-year MPP student who practiced law and served as a mediator for 10 years before enrolling at McCourt to study public policy innovation. His ideas published outside GPPR include the interspersed nation-state system, interest group mediation, dependent advocacy, a police-community partnership model for citizen review boards, a novel framework for sovereignty in a globalizing world, co-resolution, consensus arbitration, executive bargaining, a theory of impact bonds, and an alternative explanation of gravity.