This article was originally published on Mises.org. Ryan McMaken is an economist and editor of Mises Wire.
Ryan McMaken – August 27, 2017
Last year, I reported on a case in which the Johnson County Sheriff’s Office in Kansas had raided the home of a law-abiding, middle-class family in Kansas. The officers, arrayed in SWAT gear, terrorized the family and searched the house for hours, failing to find anything criminal.
The raid was the result of a program used by the sheriff’s office in which the police spend hours staking out gardening centers, identifying shoppers who buy hydroponic gardening equipment, and then proceeding to conduct SWAT raids on the homes of the alleged perpetrators — who are assumed to be growing marijuana in their homes.
The victims of this particular raid, Bob and Addie Harte, sued in federal court. Last week, a federal appeals court overturned the district court’s dismissal of the case and denounced the Johnson County government for relying on police work that amounted to little more than “junk science, an incompetent investigation, and a publicity stunt.”
The Hartes now plan to continue with their suit in which they seek $7 million in damages.
The Problem of Police Priorities
Viewing the antics of the Johnson County commissioners and the sheriff’s office, one fairly quickly begins to wonder: “does law enforcement in Johnson County really have nothing better to do?”
After all, if they have the time and resources to sit around in gardening center parking lots, engage in SWAT raids of suspected pot growers, and then conduct press conferences bragging about it, there must be virtually no crime at all in Johnson County.
That, of course, is not the case. In an analysis I conducted of crime and arrests in Johnson County, I found that — while Johnson County is generally pretty safe — an enormous amount of police activity conducted by the sheriff’s office focused on drug enforcement while real crime like assault, rape, and car thefts produced very few arrests.
Johnson County, however, is hardly unique in its oversized interest in drug busts at the expense of investigating real crime.
In Oak Park, Michigan, police agencies and prosecutors are apparently more interested in throwing the book at people for growing vegetables in their front yard instead of going after criminals who engage in real violent or property crime. The case of Julie Bass in Oak Park made national headlines when the city attempted to jail her for more than 90 days because she grew peppers in her front yard. After the city government was humiliated in the national media, prosecutors eventually dropped the charges.
At the same time, the Oak Park police spent time raiding medicinal marijuana dispensaries and seizing drugs and cash in an apparent attempt to pad the department’s budget through civil asset forfeiture.
Given the enthusiasm with which the city goes after people who grow the wrong plants on their own property, many might be led to guess that Oak Park is relatively crime free.
And they would be quite wrong. Oak Park, it turns out, is a relatively high-crime area. In 2011, the same year the city was harassing Bass, Oak Park reported some of the worst violent crime rates among Michigan municipalities. According to FBI crime data, Oak Park had the 38th-worst rate of violent crime out of a total of 338 towns and cities in Michigan.
If we look throughout the nation, we find cases of police departments expending police time and resources to arrest people for having drywall in their cars (alleged to be cocaine) selling lemonade, or giving away free books.
Sometimes, it’s not even enough to harass peaceful citizens for these tiny infractions. The police have to invent the infractions. In Baltimore, for example, two separate cases of police apparently planting evidence have surfaced in the past month alone. The evidence against police is so damning, in fact, that the Baltimore prosecutor has already been forced to drop dozens of prosecutions that rely on testimony from the now-discredited police officers.
So, is Baltimore so free of violent crime that the police have nothing better to do than plant evidence that leads to small-time drug busts? Given that Baltimore has one of the highest homicide rates in the nation, the question need not even be asked.
These police activities simply illustrate yet again how government police agencies have little interest in prioritizing the use of their resources so as to target real property crime and violent crime.
In general, law enforcement agencies live in denial of the realities of opportunity cost and scarcity. Any police officer that is busy ticketing little girls for a lemonade stand is an officer that can’t be investigating a real crime, or apprehending a suspect in a real crime. Any police officer that’s spending hours searching vehicles for one-tenth of an ounce of marijuana is a police officer that’s not patrolling a high-crime neighborhood for real crime.
Police agencies often like to claim that they must enforce “all the laws,” but this is obviously nonsense. The fact that resources are scarce means that time and energy must be prioritized. The fact is police agencies like to prioritize the enforcement of piddling little non-crimes instead of focusing on stolen property and truly violent criminals.
Why Police Prioritize So Badly
There are numerous reasons why police tend to focus on certain types of law enforcement. Not all of them originate with the police agencies themselves.
As Chris Calton has pointed out, the political system itself encourages overuse and uneconomical use of law enforcement resources:
Legislators have an incentive to flood the courtrooms because if they want to get elected, they need to appear “tough on crime.” The product of this incentive is legislation geared toward continually creating newer infractions or criteria for arrest that signal to the voters that you, the politician, are going to clean up the streets. Naturally, the focus of these infractions tends to be on non-violent crimes because the scope of violent crimes is narrower and has long been an established part of criminal law. But any new criteria for arrest means more people being funneled through the criminal justice system, and the costs are borne by the citizenry.
A similar phenomenon exists with the prison system. Calton continues:
Where legislators and police officers have in-built incentives to send as many people through the courts as possible, a similar incentive is faced by judges and prosecutors to send defendants through the prison system. Because all judges and prosecutors share common access to prison space with no individual cost for doing so, there is zero incentive for the limitation on the sentence sought by the individual prosecutor or handed down by the individual judge.
There is, however, the incentive for these professions to win cases and appear “tough on crime,” respectively. “The effect,” as Bruce Benson and David Rasmussen tell us, “is that prosecutors and judges as a group crowd the common-access prisons much as cattle owners crowd common access grazing land.”
In other words, politicians have an incentive to expand the number of punishable infractions, and therefore they pave the way for police to lessen their focus on real crime.
Having had their prerogatives greatly expanded beyond property crime and violent crime, police are only too happy to exploit this new status quo to benefit their own agencies.
Thanks to the phenomenon of civil asset forfeiture — greatly expanded by the Drug War — police agencies can now profit financially from focusing on drug enforcement, more police searches, and by directing police resources away from the enforcement of other offenses. Police department finances benefit little from devoting police man hours to busting car thieves or rapists. They can potentially pad their budgets significantly by seizing cash from suspected drug dealers — without even having to go to trouble of gaining a criminal conviction first.
Another factor is federal grants which evaluate recipients based on arrests and not on reducing violent crime or property crime. The Edward Byrne Memorial Justice Assistance Grant (JAG) program, for example, is the largest nationwide criminal justice grant program. According to a report by the Brennan Center for Justice, the grant itself steers police departments away from investigating real crime:
Current measures inadvertently incentivize unwise policy choices. Federal officials ask states to report the number of arrests, but not whether the crime rate dropped. They measure the amount of cocaine seized, but not whether arrestees were screened for drug addiction….These measures send a signal to states and localities that the federal government desires more arrests, more cocaine busts, and more prosecutions at the expense of other more effective activities.
Radly Balko has pointed out that in some jurisdictions, spurred by these sorts of funding considerations, police may be actively attempting to downplay the importance of violence crime:
[T]here’s increasing evidence that the NYPD is paying less attention to violent crime. In an explosive Village Voice series last year, current and former NYPD officers told the publication that supervising officers encouraged them to either downgrade or not even bother to file reports for assault, robbery and even sexual assault. The theory is that the department faces political pressure to produce statistics showing that violent crime continues to drop. Since then, other New Yorkers have told the Voice that they have been rebuffed by NYPD when trying to report a crime.
These perverse incentives also trickle down to the individual officer level. As explained by criminal justice research David Simon in this interview, police officers are rewarded in terms of both rank and pay by focusing on making large numbers of arrests for small infractions rather than going after a smaller number of truly dangerous criminals.
This is certainly nothing new. As noted in this report from Harvard’s Kennedy School, “a significant proportion of today’s police organizations seem to remain narrowly focused on the same categories of indicators that have dominated the field for decades.” These criteria include “numbers of arrests, citations or stop-and-frisk searches.”
This preoccupation with “productivity” (in the bureaucractic sense) dates back at least to the 1950s when there was an attempt to engage in more quantitative measures of police activity — as opposed to qualitative. A 1975 study in Criminal Justice Research identified one of the key problems with this approach:
The emphasis too easily is put on rates of production, rather than on the quality of the process through which the rates are produced. The question, “How many arrests or tickets?” is asked rather than, “Was it wise to write a ticket, or make an arrest in this case?”
We are then left with a police workforce more interested in making arrests — since that is what gets one promoted — than on pursuing more difficult, higher quality activities.
What to Do About It
The first step to forcing police to prioritize real crime over non-violent non-crime is to simply repeal laws that police use to justify ignoring real crime while focusing on drug crimes and other non-violent offenses. Ending the Drug War is always a good first step, of course. Also on the chopping block ought to be a host of other prohibitions, such as those on carrying certain types of knives
But police also need to be greatly limited in being the primary agency that “enforces” government regulations of activities such as front-yard gardening and unlicensed lemonade sales. For centuries, alleged nuisances such as these were handled not by police citations and regulatory management, but through the civil law.
If a front yard garden is truly a nuisance to neighbors, let those neighbors pursue the matter in civil court and prove they have endured damages as a result of the neighbor’s gardening. If a temporary lemonade stand is truly damaging to the community, let the neighbors sue little girls in civil court. We’ll then quickly find out just how much of a priority it really is for the community to stop the sale of unlicensed lemonade. Sending the police to enforce every little law against every little thing that mildly annoys us takes resources away from real crime with real costs in terms of property and human lives.
After all, as Michael Giuliano has shown, the initiation of legal action by government agencies — rather than by the victim — is a modern innovation in the English-speaking world. Prior to this, police action was limited by the presence of an actual victim. Needless to say, during this period, lemonade stands — or their 18th-century equivalent —were not a priority for law enforcement officials or anyone else.
Police, Courts, and Prisons, Part 1 – The problems