Civil Rights and Mass Incarceration in Arkansas

My professional focus is policing and civil liberties, so I may be approaching mass incarceration from a slightly different perspective than many of the other panelists speaking to you this afternoon.

As an overview: I will start by talking about the politics of criminal justice system and the incentives it creates. I will then talk about an aspect of policing that undermines community trust and, by extension, the goals we all share of a maintaining safe and secure communities. Specifically, I will talk about how many police departments have excelled at catching low-level offenders but at the cost of allowing more serious crimes to flourish. I will then briefly explain the effects of low-level arrests and how criminal systems set offenders up to fail and re-offend, which leads to the mass incarceration we are here to discuss today. I will close with some policy suggestions and a new approach to how Arkansans think about criminal justice.

To the general public, the police are the most visible part of the criminal justice system and, as such, they play a crucial role in determining who comes into the system as a suspect. They also play a large and underappreciated role in representing how the government values — or undervalues — its citizens.

Whatever part of the criminal system one looks at, one sees systems geared toward arrests, convictions, and punishments. In the abstract, finding and punishing individuals who commit crimes is a reasonable goal of law enforcement. Over the years, though, policymakers have incentivized police to make arrests, sometimes just to show they were doing something, without stopping to think whether the arrests were necessary, let alone whether or not the arrests made matters worse. The convictions and carceral punishments that follow many arrests are likewise accepted and counted without much concern whether incarceration makes the most sense for the offender, any potential victim, or society at large. To rollback mass incarceration, then, different actors within the system must readjust their priorities in line with the public good.

In states like Texas² and Georgia³, incarceration rates have been falling alongside generally decreasing crime rates for several years now. Unfortunately, in Arkansas, both crime rates and incarceration rates are following the opposite trend upward.⁴ As a result, Arkansas is spending more money to put more people in cages while getting worse results from a public safety and security perspective. Whether or not one thinks "mass incarceration" is a problem at all, spending more money for less value reflects inefficient public policy at best, and counter-productive policy at worst.

One way that some police are attempting to curb the uptick in violent crime is by the use of investigatory stops in high-crime areas. I am aware of no study or other objective data that shows investigatory stops lowers crime rates. There is, however, a large body of research, as well as civil suits and other reports that show heightened resentment and deteriorating police-community relationships as a result of such stops.⁵ Investigatory vehicle stops, and their pedestrian cousin known as "stop-and-frisk," typify what we at Cato have dubbed "self-defeating policing." Although an officer will on occasion find contraband after stopping and searching a car, more often than not, officers who undertake investigatory stops are fishing for evidence of a crime that they have no legal reason to suspect. A policy of these sort of stops harasses mostly innocent people and violates the security they expect driving to and from home or work, and most often they are people of color.⁶

This self-defeating tactic has been employed in recently here in Little Rock, with officers assigned to a special overtime patrol explicitly for that purpose to reduce violent crime. ⁷ In a news report earlier this year, proponents of the practice cited lower incidents of violence and gunshots where the dedicated patrol operated.⁸ The report also noted that police seized 52 weapons during the traffic stops on the special patrol in the second half of last year. The special patrol made 5,823 traffic stops during that time, or roughly 112 stops for every weapon seized.⁹

More than 99 percent of those stops in Little Rock produced no weapons. While I cannot speak to what happened in each of these stops, typically, investigatory stops differ from most traffic safety stops in that they involve a very minor violation that the driver may not be aware of. The drivers exhibit no serious threat to road safety — they aren't speeding, swerving, or running a red light or stop sign. Moreover, the violation is effectively pretext for the roadside questioning and investigation, as it is here to find firearms and discourage violence. Because the driver has good reason to believe they have not done anything wrong — and that they often correctly perceive that color of their skin and the neighborhood they live in have more bearing on why they are being stopped than whatever minor violation the officer mentions — they perceive the interaction as illegitimate.

Now, I want to be clear here. The drivers are often right to think that their race — or their neighborhood — is a determining factor in the stop. That does not mean, however, that the officer who makes the stop is acting out of any racial animus. Indeed, the officer is likely under instruction to be vigilant and to be on the lookout in a given neighborhood and, in our country, many of our neighborhoods continue to be racially segregated in fact, if not in law, so definitionally race and neighborhood will play a role when trying to curb crime this way. This lack of animus doesn't make the investigatory stops OK, but it does explain them in a way that doesn't impugn the officer's personal motives — or the department's motives, for that matter — for what happens there.¹⁰

And to be fair to the Little Rock police, the special patrols may have indeed contributed to a correlative drop in violence, but it is too much to assume that the use of investigatory stops specifically made on those patrols drove the decrease. Controlled experiments in several American cities have shown that ‘hot-spots' policing can have measurable, positive impact on crime rates.¹¹ Increased visible police presence in targeted areas that experience higher crime rates has been shown to deter crime in those areas, without the aggressive use of traffic or pedestrian stops and invasive searches.¹² Thus, the increased patrols in high crime neighborhoods might be a good idea, but it does not follow that they need to stop so many people — most of whom are people of color who likely resent the unnecessary imposition into their lives. It probably makes matters worse that when confronted with community complaints of profiling and harassment in these stops, Little Rock police officials defended their actions as "community policing." ¹³

As detailed in their book Pulled Over: How Police Stops Define Race and Citizenship, Charles Epp and other researchers at the University of Kansas explain how the disparate treatment people of color experience in investigatory stops is interpreted as a denigration of their worth in the eyes of the government and, by extension, the society they live in.¹⁴ Although the police are trying to do the right thing by the people in those neighborhoods, they end up sowing the seeds of their distrust and may have an impact on the integrity of the community in the process. It's not that the police are solely to blame for all the problems in high-crime minority neighborhoods, but in recent years, criminologists and others been investigating the negative effects of certain policing practices on the people with whom the police come into contact.

Author and journalist Jill Leovy described how these fraught relationships between communities of color and the police hinder public safety and security in an op-ed in the Wall Street Journal¹⁵ and in much more detail in her book Ghettoside.¹⁶ In short, American police departments, particularly in urban areas, have become very good at arresting individuals — most often, young men of color — for minor transgressions but are failing to curb and solve violent crimes. This failure is, in part, because police require public cooperation to solve serious crimes like homicides, but the community doesn't trust the police because of the aggressive over-policing that fosters widespread resentment. In some areas, the clearance rate for homicides of young black men is so low that the perpetrator is more likely than not to escape justice. This is the epitome of "self-defeating policing."

Because low-level offenses do not by themselves carry long jail or prison sentences, many policymakers and even police consider arrest to be a minor inconvenience without real costs. A large percentage of jail inmates are pretrial detainees — many of whom cannot afford cash bail. I couldn't find a reliable, comprehensive measurement for Arkansas, but a 2016 report by the Arkansas Association of Counties measured the populations of 26 county jails, and 47 percent of their inmates were awaiting trial.¹⁷  So, an arrest for a low-level offense can lead to extended stints in jail which can cause alienation, familial strain, and job loss. Moreover, offenders are being housed alongside gang members and other individuals who have committed more serious crimes. As former prosecutor Adam J. Foss told a Cato audience a few years ago, when confronted with the prospect of putting a young offender in jail even for a weekend, he had to consider whether he wanted to risk that individual joining a gang while inside, because gang membership does not expire after the person is released.¹⁸ A criminal system like this primes offenders for recidivism and more serious crimes in the future. So, while data show that the charging (and thus sentencing) decisions of prosecutors has the greatest impact on the numbers of mass incarceration,¹⁹ how our law enforcement agencies police our communities in the first place will have short, medium, and long-term effects on who ends up incarcerated.

Collectively, we want communities to be safer, and we want people to be held accountable for crimes they commit, especially crimes in which there are victims. This can be done, but it will take new policy priorities.

Proactive policing to discourage violence should be better targeted and smarter, not just more aggressive and invasive. The growing body of literature on hot spots and other proactive policing strategies provide blueprints that Arkansas law enforcement can learn from and adapt to their communities' particular needs without violating the civil rights of its residents.

More broadly, civic leaders and law enforcement should reconsider the community's approach to crime-fighting and crime prevention. Searching innocent people for evidence of crimes and then just locking offenders up when they're caught isn't working and may be making a bad situation worse. Diversion programs and victim restitution should be utilized whenever possible so that offenders are both held accountable for their actions, and that the problems that led them to offend in the first place aren't compounded by a system that steers them toward re-offending.

Ultimately, the people of Arkansas — and Americans broadly speaking — need to figure out whether they just want to punish offenders or make their communities better and safer places to live. If the former, we can keep the status quo because we're punishing people by the millions. If the latter, though, we all should re-assess how our police and our criminal justice system interact with our communities.

Thank you, and I look forward to your questions.

Notes

¹ This is a written version of oral testimony given before the Arkansas Advisory Committee to the U.S. Commission on Civil Rights, September 7, 2018 in Little Rock, Arkansas. Edits for clarification and citations have been added to this text.

² See generally, "State Initiatives — Texas," Right on Crime, describing the reductions in both incarceration and crime rates over the past decade, available at http://rightoncrime.com/category/state-initiatives/texas/.

³ See generally, Sara Totonchi and Marissa McCall Dodson, "Criminal Justice Reform in Georgia Cannot End with Governor Deal," Atlanta Magazine, September 24, 2018, describing the myriad reforms and alternatives to incarceration implemented under Governor Nathan Deal, available at https://www.atlantamagazine.com/news-culture-articles/commentary-criminal-justice-reform-in-georgia-cannot-end-with-governor-deal/.

⁴ Lindsay Millar, "Arkansas One of Only Four States to See Increases in Crime and Incarceration Rates from 2000-2015," Arkansas Times Blog, August 2, 2017, available at https://www.arktimes.com/ArkansasBlog/archives/2017/08/02/arkansas-one-of-only-four-states-to-see-increases-in-crime-and-incarceration-rates-from-2000-2015.

⁵ See generally Frank Baumgartner, Derek A. Epp, and Kelsey Shoub, Suspect Citizens: What 20 Million Traffic Stops Tell Us about Policing and Race, Cambridge University Press, (New York: 2018), discussing trends and findings from traffic stops in North Carolina; Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship, University of Chicago Press, (Chicago: 2014), discussing trends and findings from traffic stops in Kansas City, Missouri; see also Jonathan Blanks, "Thin Blue Lies: How Pretextual Stops Undermine Police Legitimacy," Case Western Reserve Law Review 66, pp. 931-946 (2016), examining the extant data on traffic stops and their potential impact on community-police relationships.

⁶ Ibid.

⁷ Jacob Rosenberg, "‘Protect and Serve' vs. ‘Patrol and Control' in Little Rock," Arkansas Times, January 4, 2018.

⁸ Ibid.

⁹ Ibid.

¹⁰ During the question and answer period after our panel's presentation, Arkansas Advisory Committee member Joshua Q. Mostyn asked me whether this description would be considered a definition of "institutional racism." The short answer is "yes," but the term can be off-putting to police officers who feel they are being attacked as "racist" for doing what they have been instructed to do. As a practical matter, reformers need buy-in from both police leadership and front-line officers, specifically on issues such as traffic stops, because the problems and solutions are directly connected to police discretion and policy, rather than the law itself. While "institutional racism" may accurately describe the effects of any given policy, getting police to weigh the policy's perceived costs to the community — such as trust in the police and the appearance of neutrality — along with any correlative crime drop may be an easier sell to law enforcement than the more amorphous idea of eradicating institutional racism.

¹¹ "Hot Spots Policing," Center for Evidence-Based Crime Policy, George Mason University, available at https://cebcp.org/evidence-based-policing/what-works-in-policing/research-evidence-review/hot-spots-policing/.

¹² See, e.g., Lawrence W. Sherman and David Weisburd, "General Deterrent Effects of Police Patrol in Crime "Hot Spots": A Randomized, Controlled Trial," Justice Quarterly, 12, pp. 625-648 (a hot spot experiment in Minneapolis, MN).

¹³ Jacob Rosenberg, "‘Protect and Serve' vs. ‘Patrol and Control' in Little Rock," Arkansas Times, January 4, 2018. The purpose of community policing is to increase communication and respect between the community members and law enforcement.  Specifically, police should be more responsive to community complaints about overreach and unpopular tactics. That the LRPD cited "community policing" as a response to complaints about police tactics is the antithetical to the spirit of community policing.

¹⁴ Charles R. Epp, Steven Maynard-Moody, and Donald Haider-Markel, Pulled Over: How Police Stops Define Race and Citizenship, University of Chicago Press, (Chicago: 2014).

¹⁵ Jill Leovy, "The Underpolicing of Black America," Wall Street Journal, January 23, 2015.

¹⁶ Jill Leovy, Ghettoside: A True Story of Murder in America, Spiegel & Grau (New York: 2015).

¹⁷ Lindsay Millar, "Arkansas's Jail Population Has Grown Faster Than All But One Other State," Arkansas Times, July 29, 2016. https://www.arktimes.com/ArkansasBlog/archives/2016/07/29/arkansass-jail-population-has-grown-faster-than-all-but-one-other-state . Those 26 counties that responded represent 54 percent of the state population.

¹⁸ Adam J. Foss, Keynote Speech, The State of American Criminal Justice, Cato Institute conference, delivered December 7, 2016 in Washington, DC, available at https://www.cato.org/multimedia/events/state-american-criminal-justice-keynote.

¹⁹ See generally, John Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform, Basic Books, (New York: 2017).