Crime

Overcriminalization Leads To Biased Outcomes

When everything is or could be defined as illegal, local governments pursue personal predilections instead of keeping their communities safe.

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Few topics invoke entrenched ideological tribalism more than the issue of law enforcement accountability. If you are a conservative, often no matter how ridiculous the actions of the officer are, you nevertheless defend the officer. If you are a liberal, often no matter how much evidence suggests that shootings of unarmed black men are, thankfully, extremely rare, you still make the claim it is “open season” on black men.

To be clear, the consequences of these embedded positions are not equal. Despite increased rhetoric criticizing police, there has not been, again thankfully, an increase in physical attacks against officers, not even during the heightened period post-Ferguson. However, allowing law enforcement to operate with virtually no accountability has reaped terrible constitutional and societal harm on whole communities. Although it is easy for many to place the majority of the blame on the officers, a greater culprit exists that to some extent makes victims out of the police themselves. The offender I am talking about is local government bodies that have transformed municipal police departments into revenue-generating tools.

Let us go back to Ferguson for an example of this problem. At the time there was a great piece authored by a rare type of conservative named Leon Wolf. For the sake of argument, Wolf assumed everything the Obama-era DOJ said in its report about the abuses of the Ferguson Police Department (FPD) was a lie. Wolf instead focused his analysis only on the parts of the DOJ report that came directly from the files of the FPD itself, as in only the “files that would be most favorable to the Department.” What remained was astounding and disgraceful:

The report contains a shocking volume of documentary evidence, including emails, that Ferguson’s police supervisors, including the City Manager, repeatedly hounded Ferguson officers to increase their ticket fines without regard to whether the tickets they were writing were justified. While police departments across the country like to repeatedly claim that they do not have “ticket quotas,” and that they are solely interested in public safety, this report gives the lie to that claim, at least in Ferguson. The internal emails collected during this investigation show a pattern of behavior that most Americans have long suspected exists behind closed doors in many police departments: discipline issued for failing to write enough tickets, threatening emails to cops who are under performing in writing tickets, and prominent “score sheets” posted showing who top “performers” are.

If you read nothing else in the report, flip to page nine, roman numeral 3, and read that section. The results of this tremendous top-down pressure are astounding. Between the years of 2010 and 2014, revenues from fines and fees assessed by the Ferguson PD almost tripled, from $1.38M to over $3.0M. As a consequence, the portion of the city’s budget that was comprised by revenue from these fines increased from about 10% to about 25%. Each year the city has budgeted for these increases and clearly ordered the FPD to get them at any cost.

The ability for local governments to use police departments in this manner would not be possible without the overuse of criminal law. Overcriminalization can take many forms, but a common tactic is to ambiguously criminalize conduct without any meaningful definition or limitation. If everything is or could be characterized as illegal, this presents ample opportunity to issue vast amounts of citations which can quickly add up to lucrative revenue streams.

The impact of overcriminalization therefore can foster a lot of distrust, as it did in Ferguson, between communities and police departments. When trust between police and their community is strong, crime “is pushed further down.” Moreover, when police are focused primarily on petty offenses that may generate a lot of money for local government, the public becomes less protected as less resources are available to focus on more serious violent crimes.

Overcriminalization, therefore, creates a vicious circle, where trust between the public and the police is degraded and serious crime is left unchecked thus creating a less-safe society causing law-and-order conservative types to demand for more aggressive policing. This circle will not be broken until the root problem of overcriminalization is identified and addressed. The criminal justice system was never intended to be the solution to every societal problem, including mental health problems and addiction. It certainly was never intended for local governments to use police departments as a cash register to draw money from the vulnerable instead of protecting the public.

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Tyler Broker is the Free Expression and Privacy Fellow at the University of Arizona James E. Rogers College of Law. His work has been published in the Gonzaga Law Review and the Albany Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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