Stop Overpolicing

In this month's issue, we draw on decades of Reason journalism about policing and criminal justice to make practical suggestions about how to use the momentum of this summer's tumultuous protests productively. Check out Damon Root on abolishing qualified immunity, Peter Suderman on busting the police unions, Jacob Sullum on ending the war on drugs, Sally Satel on rethinking crisis response, Zuri Davis on restricting asset forfeiture, C.J. Ciaramella on regulating use of force, Alec Ward on releasing body cam footage, Stephen Davies on defunding the police, and Nick Gillespie interviewing former Reasoner Radley Balko on police militarization.

"The practice of racial profiling grows from a trio of very tangible sources….The sources include the difficulty in policing victimless crimes in general and the resulting need for intrusive police techniques; the greater relevancy of this difficulty given the intensification of the drug war since the 1980s; and the additional incentive that asset forfeiture laws give police forces to seize money and property from suspects."
Gene Callahan and William Anderson
"The Roots of Racial Profiling"
August/September 2001

On July 6, 2016, Philando Castile was fatally shot during a traffic stop in suburban Minnesota when a police officer freaked out over Castile's legally carried concealed firearm. While activists and the general public reasonably focus on the senseless tragedy that day, that stop was at least the 46th time Castile had been pulled over in the previous 13 years. There is little reason to believe Castile was a particularly bad or dangerous driver. He was cited once for exceeding the posted speed limit and once for running a stop sign; three other stops were for more ambiguous moving violations, according to an NPR investigation published after his death. It seems, instead, that the local police used the myriad regulations at their disposal to repeatedly stop, investigate, fine, and sometimes arrest Castile for minor offenses. It is no exaggeration to say that Castile had been victimized by police many times before he was killed.

Police officers make millions of traffic and pedestrian stops in the United States every year. A very small number result in any police use of force, let alone lethal force. But officers understand that any on-duty interaction may become violent and are instructed to be prepared for that possibility at all times. To drive that message home during training, cadets watch graphic dashboard camera videos of traffic stops that result in shootouts and officer deaths. Thus, any involuntary contact between citizens and police officers carries an inherent danger for individuals on both sides of the encounter. Despite this risk, police departments incentivize their officers to make stops not only for traffic safety and crime deterrence but also for revenue generation and as a means of conducting investigations that would otherwise lack legal justification.

Undoubtedly, lawmakers have put too many crimes and civil violations on the books that can lead to police-initiated contact, a phenomenon broadly captured by the term overcriminalization. Most states and localities could purge many laws and regulations without any damage to public safety or security. But every day, police officers routinely use personal and institutional discretion to ignore countless violations that range from jaywalking to not using a turn signal to public consumption of drugs and alcohol. Thus, the determination of how often and under what circumstances to make traffic or pedestrian stops is ultimately one of policy, not one of law.

Although departments are prohibited from setting ticket or stop quotas for personnel, commanding officers set expectations for what a successful shift looks like on a typical day. For example, an officer assigned to general patrol, in which his role is to respond to  911 calls in his assigned zone, may not be expected to initiate many stops, particularly on shifts with a lot of calls. But if that officer is assigned to traffic duty on a road segment known for speeders and he reports only two vehicle stops and no tickets issued during an eight- or 10-hour shift, he will likely be questioned by his superior.

Beyond the individual incentives that an officer faces on any given day, police departments also can set an enforcement strategy in response to local conditions or political agendas. If a city or policing district sees a spike in gun violence, for example, political pressure will come down on the police brass to do something about it, which invariably trickles down to front-line officers. There are only so many police officers in a given department, and they can't be everywhere at once, so the institution's ability to reduce crime right away is naturally limited. But officers have a considerable amount of power at their disposal to produce numbers that show that they are "doing something" in response to a perceived crisis.

Aggressive policing techniques allow officers to confront individuals, question them, and perhaps search them for contraband such as drugs and guns. New York City's stop-and-frisk program is the most notorious example of this style of policing. This program demonstrated to politicians that NYPD officers were in the streets discouraging crime with proactive tactics. Over the most active 10 years of the program, the New York Police Department (NYPD) recovered roughly 8,000 firearms by stopping, questioning, and frisking pedestrians. As in much of the rest of the country, violent crime in New York was trending downward during this period, so on its face, it may have seemed like an excellent anti-violence tactic.

What the NYPD didn't highlight was that recovering those 8,000 guns required stopping roughly 4 million individuals, the vast majority of whom were black or Latino men—a firearm hit rate of 0.2 percent. Of course, officers also sometimes found drugs or people who had outstanding summonses for both petty and serious offenses. But even taking those cases into account, roughly 90 percent of the people the NYPD subjected to a stop and frisk were completely innocent of wrongdoing in the eyes of the law, according to the New York Civil Liberties Union.

Although New York's program has been pared back as the result of a lawsuit and public pressure, the aggressive use of pedestrian and traffic stops to investigate crime in the general public remains commonplace for police departments around the country. Stops are a common tactic police use to respond to spates of violence and gun victimization. Sometimes the stops seem to lower crime, and sometimes they do not. But even when such programs seem to correlate with crime declines while they are operating, it bears noting that New York did not see a spike in crime after stop and frisk was scaled down there.

In 2015, the Los Angeles Police Department created its Metropolitan Division, which uses unmarked police vehicles to increase motor vehicle stops to search for drugs and guns in high-crime areas. According to the Los Angeles Times, nearly half of the motorists pulled over by Metro Division units are black, despite black people making up roughly 9 percent of the L.A. population. The Times dubbed this disparity "Stop-and-Frisk in a car." Violent crime in those areas continued to increase until 2018.

In 2017, following an uptick in violent crime, the police department in Little Rock, Arkansas, assigned officers to special overtime patrols in marked cars with the express purpose of stopping vehicles to search for firearms. During a six-month period, the Arkansas Times reported, the Little Rock Police Department (LRPD) recovered 50 unspecified "weapons" as part of that initiative. But the LRPD needed over 6,000 vehicle stops to recover those weapons, pulling over 112 innocent motorists for every weapon recovered. When black community members complained about the special patrols, including reports that officers would sometimes draw their guns without provocation, the LRPD responded that the effort was part of a "community policing" strategy. Such tactics differ considerably from the ice cream socials and get-to-know-a-cop events that typify other cities' community policing efforts.

Defenders of aggressive policing strategies like those deployed in Little Rock will point to a measurable decrease in violent crime once the special overtime patrols were initiated. While this decrease is almost certainly tied to the actions of LRPD, the explanation is not as straightforward as it may seem.

Modern professionalized policing has mostly been a reactive endeavor in the United States. Local governments tend to throw police officers at public problems—ranging from crime and disorder to mental health and other personal crises—and the cops, in turn, develop ad hoc strategies based on experience, hunches, and the "do something" incentives described above.

In the last couple of decades, a group of academics, including some current and former police officers, have developed a discipline known as "evidence-based policing." They have designed research and field experiments to measure the effectiveness of police policy and strategies. By using legitimate scientific methods like random control trials, these researchers are creating a growing body of literature on how police can make society safer.

Getting police officers and departments to embrace this new way of thinking about their jobs continues to be an uphill struggle. One consistent finding is that Drug Awareness and Resistance Education (DARE) programs have no significant impact on teen drug use. Nevertheless, when I attended a conference put on by the Center for Evidence-Based Crime Policy (CEBCP) at George Mason University a few years back, one police officer in attendance was unironically wearing his department's DARE polo shirt. Although the program isn't as ubiquitous as it once was, the DARE America website boasts that its officers reach more than a million students every year, and its most recent annual report shows a 23 percent increase in revenue from 2017 to 2018.

The CEBCP maintains an online Evidence-Based Policing Matrix that collects and categorizes scientific research on police practices. The matrix characterizes studies by their methodological rigor and breaks them into categories such as "neighborhood," "micro-place," or "jurisdiction" to describe the size of the experiment. While DARE is an exceptionally useless police strategy, most policing practices aren't as clearly effective or ineffective. But trends are emerging as the database continues to grow.

One finding that is now widely accepted in the evidence-based community is that a visible police presence can decrease criminal activity in areas experiencing elevated crime. While no evidence-based studies concerning Little Rock's overtime patrol shifts or the L.A. Metro Division's methods have been published, this observation seems to match up with their respective experiences. Los Angeles didn't see a reduction in crime when it used unmarked vehicles to make its stops, but Little Rock, with its marked patrol cars, did.

Beyond increasing police visibility, though, the investigatory stops and searches may not have played any role in driving down violence. While some evidence-based studies suggest stop and frisk may reduce crime when carefully targeted in "hot spots," the dramatic rollback of stop and frisk in New York indicates that widespread targeting of black and Latino men is not an effective crime control strategy.

For decades, aggressive police tactics have overwhelmingly targeted black men. Far more often than not, the individuals stopped have done nothing wrong. When they can, police point to guns taken off the street or crime rates that go down. But they too often do not seriously consider the social costs of stopping and harassing innocent people who perceive—often correctly—that their involuntary police encounter is in large part due to their race. Most innocent drivers aren't shot and killed by an officer, as Castile was, but enough of the people who are stopped fear that could happen to them, and they rightfully resent it.

Data show that police don't need to stop as many people as they do. Police departments should deploy their officers in a way that maximizes safety for everyone in the community instead of boosting officer activity for its own sake. Harassing people is a policy choice, and a poor one: There's little evidence it works to reduce crime. But even if it did, in a free society, effectiveness must sometimes take a backseat to constitutional and civil liberties concerns. In this time of heightened sensitivity to police treatment of African Americans, reducing unnecessary police contact is an easy way for departments to demonstrate that black lives matter.