The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Criminal Law

"Citizen Non-Cooperation and Police Non-Intervention as Causes of Justice Failure and Crime"

"Such inaction is not irrational but the result of strong incentives against citizen cooperation and against active police intervention."


A very interesting article by Penn law professor (and leading criminal law scholar) Paul Robinson, together with Jeffrey Seaman and Muhammad Sarahne; here's the bulk of the Table of Contents, which I think offers a good perspective on what the article covers:

II. Citizen Non-Cooperation

A. Witness Intimidation
1. Types of Witness Intimidation
2. Case Example: Latasha Shaw
3. The Nature and Extent of the Problem
4. Public Complaints
5. Reforms Attempting to Reduce Witness Intimidation
6. Recommendation: Protect Witness Identities in Cases of Likely Intimidation

B. The Stop Snitching Movement and Codes of Silence
1. Case Example: Israel Ramirez
2. The Nature and Extent of the Problem
3. Public Complaints
4. Reforms Addressing the Stop Snitching Movement
5. Recommendation

C. Cynicism about Criminal Justice Effectiveness
1. Case Example: Alec Cook
2. The Nature and Extent of the Problem
3. Reforms to Reduce Legal Cynicism
4. Recommendation

D. Community Upset Over Police Use of Force: The False Narrative Problem
1. Case Example: The Shooting of Michael Brown in Ferguson, Missouri
2. The Nature and Extent of the Problem
3. Pushing Back against Community Misperceptions Regarding Police Use of Force
4. Reforms Addressing Community Upset Over Police Use of Force
5. Recommendation

III. Police Non-Intervention

A. Anti-Police Rhetoric and Physical Attacks on Police
1. Case Example: Al Sharpton
2. The Nature and Extent of the Problem

B. De-Policing: Defunding Police and Police Exclusion Zones
1. Case Example: Police-Free Zone in Minneapolis
2. Case Example: De-Policing in Portland
3. The Nature and Extent of the Problem
4. Changing Views on De-Policing

C. Police Demoralization: Early Retirements, Increased Hiring Difficulties, Decreased Hiring Standards, and Understaffing
1. Case Example: Minneapolis Police Shortages and Demoralization
2. The Nature and Extent of the Problem

D. Voluntary Police Non-Intervention: The Ferguson Effect
1. Case Example: The Ferguson Effect in Baltimore
2. Case Example: Police Disengagement in Atlanta
3. The Nature and Extent of the Problem

E. Reforms to Reduce Police Non-Intervention

IV. Recommendation: Create a Police-Community Oversight Commission That Will Help Police Earn Credibility with the Community and That Will Itself Earn Credibility with the Police
A. Improving Police Credibility with the Community
B. The Commission Must Establish Its Own Credibility with the Police

And here's the Introduction:

It may surprise many that America's justice system fails to find or punish offenders for the vast majority of serious crimes. Failures of justice are the norm, not the exception. Most killers get away with murder. In 2020, there were 24,576 homicides in America, and police solved just 10,115 of those—41.1%. Even worse, usually less than half of these solved cases result in a homicide conviction. Escaping punishment for rape or assault is trivially easy. Of more than 920,000 aggravated assaults annually, only 8.3% lead to a conviction. Of 463,000 rapes and sexual assaults annually, 99.5% end in no felony conviction. Every year, the justice system allows hundreds of thousands of murderers, assaulters, and rapists to walk free. And this situation is only getting worse. The data suggest the national homicide clearance rate dropped by 22% between 1980 and 2020, with the clearance rate for other serious offenses dropping as well.

These low clearance and conviction rates are highly damaging to society…. Even more troubling, failures of justice disproportionately impact racial minorities and low-income communities, making the issue one of social as well as criminal justice. The recent decline in nationwide murder clearance rates is almost entirely due to failures to solve the killings of Black victims. Clearance rates for Black homicide victims have dropped by 20% over the past five decades, while clearance rates for white homicide victims have increased by 5%. A 2019 investigation on clearance rates in Chicago showed that homicides where the victim was White were solved 47% of the time, while homicides where the victim was Hispanic were solved 33% of the time, and homicides where the victim was Black were solved 22% of the time.

What is causing this increasing flood of justice failures and what can be done to stop it? While the crisis of unsolved crime has many causes, one oft-overlooked reason is that the most important actors in solving crime—community members and police—are increasingly not acting at all. Such inaction is not irrational but the result of strong incentives against citizen cooperation and against active police intervention. When citizens stand back and police stand down, the result is more failures of justice[]….