Criminal Law and Civil Liberties

June 5, 2020 4:37PM

Spending on Police by State

Amid the outcry over George Floyd’s death and subsequent protests, some people are calling for defunding the police. Zeroing out the police doesn’t make any sense, but citizens should certainly be looking at issues of police mismanagement, hiring practices, labor union protections, and accountability.

Citizens should also ask questions about police budgets. The Census Bureau reports that in 2017 state and local governments spent $115 billion on police, which represented 3.1 percent of overall state and local government spending that year.

Police spending varies substantially by state, as shown in the chart below based on the Census data. The U.S. average is $352 per capita. I don’t know what the proper level of spending is, and obviously the states vary in terms of crime rates, cost of living, and other factors.

Spending ranged from $186 per capita in Kentucky to $530 per capita in New York. The ranking of many states is what one would expect. New York is a big spender on just about every government function. Alaska has large distances and high costs. Indiana has a fairly well‐​run government with relatively low costs.

Florida’s high spending on police is a surprise given that most government activities in that state are relatively low cost. Marylanders should be asking why their police spending is 49 percent higher than spending in Virginia ($443 vs. $298 per capita). Nevada’s high police spending is also surprising, given that Nevada has a relatively inexpensive government overall.

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June 4, 2020 11:57AM

Americans Don’t Want to #Defund Police, Instead They Agree on Reform

Connor Friedersdor writes in the Atlantic that police reform is popular, while rioting is not. He’s right. While only 16% of Americans favor cutting funding for police departments, the Cato Criminal Justice National Survey found that Americans across racial and political backgrounds support a variety of policy changes that reformers say would help mend fences between police and the communities they serve.

Read the full Cato 2016 Criminal Justice National Survey results here.

It’s true that Americans of different racial backgrounds have vastly different perceptions of police. Strong majorities of African Americans believe police are too quick to resort to deadly force (73%) and aren’t held accountable for misconduct if it happens (64%). On the other hand, whites believe police use deadly force only when necessary (65%) and generally are held accountable for bad behavior (57%). But the racial divide in perceptions largely vanishes when it comes to policy reforms. The Cato survey found:

  • 79% of Americans support having outside law enforcement agencies investigate police misconduct, rather than leave it to the department to handle. It may surprise some readers to learn that most jurisdictions in the U.S. allow police departments to investigate and discipline their own officers. Instead, most Americans think having some outside oversight could enhance accountability. Majorities across racial groups support this: 81% of whites, 82% of blacks, and 66% of Latinos support outside investigations of misconduct.
  • 65% of Americans believe racial profiling is commonly used, but nearly the same share oppose it. 63% oppose the practice of police stopping motorists or pedestrians of certain racial or ethnic groups if police believe that these groups are more likely than others to commit certain types of crimes. 62% of whites, 77% of blacks, and 62% of Hispanics all oppose racial profiling.
  • 68% support de‐​escalation training for police to aid police officers during confrontations with citizens. 62% of whites, 81% of blacks, and 70% of Hispanics support providing this additional training to officers.
  • 53% think local police departments using military weapons and armored vehicles “goes too far” and aren’t necessary for law enforcement purposes. Presumably, these same Americans think police ought not to use such equipment. 53% of whites, 58% of blacks, and 51% of Hispanics think local police using military weapons goes too far.
  • 89% support the police wearing body cameras. Americans don’t think this is just for civilians’ benefit—but for police officers too. Nearly three‐​fourths (74%) think body cameras equally protect police officers who wear them and citizens who interact with them. 90% of whites, 89% of blacks, and 87% of Hispanics support police wearing body cameras.
  • 73% support a law requiring police officers to notify citizens when a stop is voluntary and they are free to decline a search, including 74% of whites, 63% of blacks, and 74% of Latinos.
  • 54% favor treating drug offenses like minor traffic violations with small fines rather than as felonies. Some scholars believe cooling the drug war could reduce the number of high stakes encounters between police and communities thereby helping to rebuild trust. 54% of whites, 59% of blacks, and 52% of Hispanics support re‐​categorizing drug offenses from felonies to civil offenses.
  • 84% support ending a practice called civil asset forfeiture in which police may take money or property of a person they suspect may have been involved in a crime before the person is convicted. 84% of whites, 86% of blacks, and 80% of Hispanics think police should only be allowed to seize property after a conviction.
  • 67% support banning neck restraints as a police tactic, including 67% of whites, 74% of blacks, and 59% of Latinos. (According to a Yahoo/​YouGov May 2020 survey)
  • 80% support implementing an early warning system to identify problematic officers, including 81% of whites 88% of blacks, and 74% of Latinos. (According to a Yahoo/​YouGov May 2020 survey)

Americans across racial lines also support a number of changes to the criminal justice system.

  • Majorities of Americans support eliminating mandatory minimum prison sentences for both violent offenders (58%) and non‐​violent offenders (75%) so that “judges have the ability to make sentencing decisions on a case‐​by‐​case basis.” Majorities of whites (59%), blacks (63%), and Hispanics (54%) agree with eliminating mandatory minimum prison sentences for violent offenders as well as non‐​violent offenders (76%, 75%, and 67% respectively).
  • 73% of all Americans support a plan that would cut the length of prison sentences for non‐​violent drug offenders: 74% of whites, 77% of blacks, and 67% of Hispanics agree.
  • 73% of all Americans support allowing non‐​violent drug offenders who have served their sentences to vote: 75% of whites, 81% of blacks, and 66% of Latinos agree.

Read the full Cato 2016 Criminal Justice National Survey results here.

It’s also useful to keep in mind that few Americans of any racial group support some of the more radical changes demanded by some activists. For instance, few people support calls to abolish or defund the police: 9 in 10 black, white and Hispanic Americans oppose reducing the number of police officers in their community—and a third say their community needs more officers the Cato survey found. And a Yahoo/​Yougov survey found that only 16% of Americans favor cutting funding for police departments, including 12% of whites, 33% of blacks, and 17% of Hispanics.

While Americans support (57%) the general purpose behind the protests in response to the death of George Floyd. They do not like protests that turn violent and lead to rioting. And the Yahoo/​YouGov poll found that 51% felt the Minneapolis protests were mostly violent riots, not peaceful. This may be why a Morning Consult poll found that 71% of Americans support sending in the national guard to address the protests.

Especially as tensions and emotions are high, these data demonstrate that Americans don’t have to reach consensus about every policing problem. Instead, we should remember that Americans across racial lines agree a great deal about how police should do their jobs and support policies intended to help achieve that goal.

Read the full Cato 2016 Criminal Justice National Survey results here.

June 3, 2020 12:18PM

Police Violence and the Racist Drug War

By Jeffrey Miron and Erin Partin

Police misconduct arises from many causes. Overly strong unions protect officers from discipline and prevent institutional reform. Qualified immunity, the doctrine established by the Supreme Court that limits the ability of citizens to bring civil suits against government officials, shields police from accountability for their misconduct. And militarization – federal provision of military equipment to state and local police departments – leads to more aggressive tactics in black communities. All of these policies, combined with underlying racial animus, contribute to aggressive, often unlawful behavior, especially towards blacks and other racial minorities.

Another key driver is the War on Drugs. Federal drug prohibition dates to the Harrison Narcotic Act of 1914, and President Richard Nixon officially declared a war on drugs in 1971. But the crack hysteria of the 1980s, after low‐​cost crack cocaine spread to lower income, black, and minority communities, set the stage for aggressive policing, zero‐​tolerance policies, and punitive prison sentences. This was only the latest instance of drug prohibition fueled by racial or ethnic animus. Temperance laws in the 1840s targeted Irish immigrants, anti‐​opium laws in the 1890s targeted Chinese immigrants, new laws against cocaine targeted blacks moving northward during the early 19th century, and an increase in migration from Mexico led to early marijuana laws.

The escalation of the War on Drugs gave police officers both motivation and excuses to engage aggressively and maliciously with black communities. Together with the “broken windows” theory of policing, this increased encounters between blacks and police and generated increasingly antagonistic relationships, with just a third of black Americans saying they trust the police compared to three quarters of white Americans.

Drug arrests and prosecutions disproportionately affect black Americans. In 2018 – the most recent year for which data are available – blacks made up 13 percent of the US population, but 28 percent of all drug‐​related arrests. This is despite having nearly identical rates of illicit drug use. In her book The New Jim Crow Michelle Alexander writes, “Nothing has contributed more to the systematic mass incarceration of people of color in the United States than the War on Drugs.”

The drug war has led to the harassment, imprisonment, and death of countless black Americans. Prosecutors attempted to justify the killing of Michael Brown by arguing that the marijuana found in his system had caused him to become violent, despite refutations by medical experts. The officer who shot and killed Philando Castile claimed that the smell of marijuana caused him to “fear for his life.” Police serving a no‐​knock drug warrant on the wrong house shot and killed Breonna Taylor. The officers responsible for arresting – and killing – George Floyd reported that he “appeared to be under the influence.”

Ending the drug war will not eliminate police violence. Legalizing drug use and possession will not solve the problem of racism. But it will take one step toward ensuring that police officers have no excuse to unduly harass and kill Americans.

June 1, 2020 5:00PM

A Quarter Century of Cato Research on Police Accountability

You’ve probably seen some of Cato’s recent work on police misconduct and accountability, notably writings on the Supreme Court’s qualified immunity doctrine by Clark Neily and Jay Schweikert (more) and Aaron Yelowitz’s post on the high cost of police‐​community mistrust. If you’re new here, though, you may not realize that Cato has for decades made itself a center for principled, empirically oriented research on police misconduct and how best to bring accountability to the public use of force.

A sampling of work Cato has sponsored, published, or supported:

* Radley Balko’s 2013 book The Rise of the Warrior Cop: The Militarization of America’s Police Forces has become the standard work on its subject. Since then we’ve stayed on the topic of police militarization: check out Trevor Burrus‘s chapter on the subject in the 2017 Cato Handbook for Policymakers.

* Policing in America, led by Emily Ekins, was our 2016 survey probing deep into public opinion on the subject.

* Two institutional barriers to identifying and removing police officers responsible for the unjustified use of force are police union contracts and the state laws known as Law Enforcement Officers’ Bill of Rights, both of which tie investigators’ hands in various ways. Police unions have been a recurring topic at my long‐​running Cato blog Overlawyered, which discussed or mentioned them in more than 100 posts. (Overlawyered ended its posting run yesterday after nearly 21 years.) I wrote here about LEOBR/LEOBOR laws, which are on the books in at least 14 states. States with such laws include Minnesota, where George Floyd was asphyxiated in police custody May 25, and Kentucky, where Breonna Taylor was fatally shot by Louisville police May 13, as well as Maryland, where the 2015 death of Freddie Gray in police custody sparked days of unrest.

* In recent years Cato has covered too many other aspects of the problem to count, including the public’s right to record police activity in public places; racial disparities in policing; efforts to collect data on police shootings; why civilian review boards get subverted; sexual misconduct against persons in police custody; pretextual stops; and much, much more.

* Nor is our interest in over‐​policing recent. Here’s then‐​Cato chairman Bill Niskanen way back in 1994 calling for repeal of the then‐​new federal crime bill.

Around the country, people of good will are searching with new urgency for practical, Constitutional ways of protecting civilians from exposure to needless death and injury at the hands of law enforcement. There is no better place to begin that search than here at Cato.

June 1, 2020 10:57AM

As Qualified Immunity Takes Center Stage, More Delay from SCOTUS

I fear I may have become trapped in a time loop, in which every week I am doomed to write the same blog post about how the Supreme Court has delayed consideration of its qualified immunity docket. Back in April, I noted that the Court had scheduled thirteen different qualified immunity cases for its May 15th conference, including three cases explicitly calling for the Court to reconsider the doctrine entirely. Many of these petitions had already been fully briefed and ready for consideration since last October. But the Court then rescheduled the bulk of those cases again, and again, and again.

This morning, the Court kicked the can down the road once more. There were eight different qualified immunity cert petitions that went to conference last Thursday, but none of those petitions were either granted or denied in this morning’s orders. We expect that these petitions will soon be relisted for the Court’s conference this Thursday, June 4th, which means we could get a decision in these cases as soon as Monday, June 8th.

While it’s obviously impossible to know for sure what is motivating the Justices’ continued delay in these cases, I expect that the death of George Floyd, and the continuing outrage and chaos his death has provoked, are weighing heavily on their minds. As my colleague Clark Neily discussed last week, the senseless violence committed by Derek Chauvin—and the stunning indifference of the officers standing by as George Floyd begged for his life—is the product of our culture of near‐​zero accountability for law enforcement. And while that culture has many complex causes, one of the most significant is qualified immunity. As I noted over the weekend, reporters and commentators of all stripes have recognized the profound connection between George Floyd’s death and the Supreme Court’s lawless rewriting of our primary civil rights statute.

The Justices have a critical opportunity now to take the first steps toward correcting the legal and moral perversities of qualified immunity. If they do so, perhaps it will effect some small measure of redemption for the tragic death of George Floyd, and so many like him. If not, it is difficult to overstate how severe our crisis of confidence in law enforcement will become.

June 1, 2020 8:07AM

Longer‐​Run Impacts from Outrageous Policing Incidents

The past few weeks have seen broad‐​based community outrage from extremely disturbing incidents involving current or former police officers in the killing of 44‐​year‐​old George Floyd in Minneapolis, 26‐​year‐​old Breonna Taylor in Louisville, and 25‐​year‐​old Ahmaud Arbery near Brunswick, Georgia. In all cases, the victims were African‐​American and the events have spotlighted the role of racism in policing.

In the immediate aftermath—which exploded during the week of May 25th—there were both peaceful and violent protests, destruction of private and public property, and additional injury in Minneapolis, Louisville, Atlanta, and far beyond. There is no question that the short‐​run costs to each city and its residents will be enormous.

Poor underlying race relations between the police and community has long‐​term costs, too, an issue that I explored with my colleague Tim Harris in a study published in Journal of Housing Economics in 2018. In the study, we explored whether poor underlying race relations in an area might create a chilling effect on homeownership for minorities. We focused on home ownership—an easily measured outcome in many data sets—because it is related to the decision to “plant one’s roots” and invest in a community. It has been argued that home ownership is associated with both private benefits (such as wealth accumulation and better child outcomes) as well as community benefits (such as investment in social capital). Given the illiquidity of homeownership, it can be thought of as a longer‐​term investment for many people.

From 2012 onward, there were a series of high‐​profile events in the U.S. related to police brutality which highlighted racial tension. Using Google Trends, we characterized a locality’s underlying racial climate based on search interest in these charged events. We used data from the American Community Survey prior to any of these flare‐​ups and showed that the ownership decision for black people is responsive to the underlying racial climate; African‐​American homeownership in localities with the most charged racial climates was 5.6 percentage points lower than in the least charged racial climates.

Our findings, insofar as our measure captures problems with the criminal justice system, suggest that some recent proposals with bipartisan support to reform policing and sentencing may have larger social benefits beyond those directly aggrieved. Reforms in police tactics—such as additional training, body cameras, and the use of outside agencies to investigate misconduct—have broad‐​based support. Improving policies has the potential to improve race relations and consequently increase investment in communities through homeownership.

May 30, 2020 5:36PM

In the Wake of George Floyd’s Death, All Eyes Turn to SCOTUS

This past Monday, George Floyd was killed by a police officer, Derek Chauvin, who pressed his knee against Mr. Floyd’s neck for over eight minutes, while Mr. Floyd and onlookers alike begged for the officer to stop and let Mr. Floyd breathe. George Floyd’s death was no aberrant act of random violence. Rather, as my colleague Clark Neily wrote earlier this week, Mr. Floyd was “the latest victim of our near‐​zero‐​accountability policy for law enforcement.” As such, I expect his death has been weighed with a special kind of gravity on One First Street, where the Justices of the Supreme Court deliberated this week on whether to reconsider qualified immunity—an atextual, ahistorical judicial doctrine that shields public officials from liability, even when they break the law.

Over the last several days, I have observed with grim satisfaction that reporters and commentators of all stripes have appropriately recognized the direct connection between qualified immunity and the senseless murder of George Floyd. For example:

  • The New York Times pulls no punches, running an editorial on the subject of “How the Supreme Court Lets Cops Get Away With Murder.” They correctly explain that, while there are a variety of reasons police officers are rarely held to account for their misconduct, “it is the Supreme Court that has enabled a culture of violence and abuse by eviscerating a vital civil rights law to provide police officers what, in practice, is nearly limitless immunity.”
  • Fox News also reports that “[t]he death of George Floyd at the hands of a Minneapolis police officer has done more than just trigger massive protests and riots—it’s brought a simmering debate on ‘qualified immunity’ for government officials to a veritable boil.” The Fox piece describes how qualified immunity has “come under fire even from judges on President Trump’s Supreme Court shortlist, like Fifth Circuit Court of Appeals Judge Don Willett,” who wrote in a 2018 concurring opinion that “[t]o some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable.”
  • At USA Today, Richard Wolf describes how “Legal immunity for police misconduct, under attack from left and right, may get Supreme Court review.” He notes that “[t]he brutal death of George Floyd at the hands of Minneapolis police has re‐​energized a national debate over misconduct by law enforcement officials that the Supreme Court may be poised to enter.”
  • Slate’s Mark Joseph Stern writes that “George Floyd’s killing by Minneapolis police officers shows the damage the court has wrought” through the doctrine of qualified immunity. He further explains how “[a]t their conference on Thursday, the justices will have an opportunity to begin unraveling the catastrophic case law that allows so many officers—including, apparently, Floyd’s killers—to murder civilians with impunity. The court has an obligation to fix what it broke.”
  • At Reason, C.J. Ciaramella writes that “The Supreme Court Has a Chance To End Qualified Immunity and Prevent Cases Like George Floyd’s,” and explains that the Court “could announce as early as Monday that it’s taking up several cases involving the doctrine.”

Suffice to say, when both the New York Times and Fox News have basically the same take on such a charged issue, it’s a good sign they’re onto something. On Monday morning, we’ll learn whether the Supreme Court intends to take the first step toward correcting the legal and moral perversities of qualified immunity. If the Court declines to address this issue now, it will not only be a shameful black mark on the Court’s reputation—it will also exacerbate what is already a severe crisis of confidence in law enforcement across the nation.