When police choose to arrest a resident of a particular neighborhood for committing a crime in that neighborhood, the decision produces certain costs and benefits for the neighborhood. And when police concentrate resources in certain neighborhoods, or adopt different enforcement strategies in different parts of a city, the costs and benefits of arrests will be distributed unequally among neighborhoods. Such distributional consequences of policing strategy are the subject of an interesting new article by Nirej Sekhon, “Redistributive Policing,” 101 J. Crim. L. & Criminology 1171 (2011).
It seems self-evident that policing strategies should not be regressive, that is, exacerbate preexisting socioeconomic disparities among neighborhoods. Rather, the ideal should be to distribute the benefits and burdens of arrests evenly across neighborhoods. The problem, of course, is that crime rates are not distributed evenly.
Sekhon’s solution is to tie neighborhood arrest rates to neighborhood crime rates:
The obligation to distribute policing costs equitably ought to require police departments to make arrests in proportion to the rate of specific criminal misconduct in specific areas. Police departments should not arrest offenders in one community while allowing those in another community to engage in similar conduct with impunity. (1220)
This might have a large impact on drug enforcement, for instance. Since the rates of drug use appear no less among well-off whites than among poor minorities, Sekhon’s approach would seem to require police to intensify enforcement in middle-class neighborhoods, deescalate enforcement in poor neighborhoods, or both.
Sekhon’s argument rests in large part on the political marginalization of the poor, who are not able to protect themselves through the political system from being made to bear a disproportionate share of the burdens of arrests. He contends this his approach can help to mitigate some of underlying political dysfunction:
it will . . . enhance popular democracy’s capacity for producing egalitarian results. If the costs of proactive policing are evenly distributed, one would expect the political process to be a greater source of equality-enhancing pressure upon police departments—i.e., if politically empowered citizens dislike the effects of proactive policing in their communities, they are likely to bring their political power to bear on police departments and, perhaps more importantly, on legislatures to criminalize in a more restrained and circumspect way. (1220)
I think that Sekhon’s focus on the distributional consequences of policing strategy is helpful, but I’m not sure that his exclusive focus on arrest rates is ultimately the most promising approach. Arrests are a convenient unit of analysis because we have lots of arrest data. But the real concern should be with the consequences of arrests, and those consequences can vary tremendously, even within a given offense type. An arrest will mean very different things depending, for instance, on the arrestee’s ability to post bond; on whether the arrestee has a job that is put in jeopardy; on the arrestee’s family circumstances; on the arrestee’s access to high-quality legal representation; and so forth. The crime-control benefits, too, may vary a great deal — some arrests, even for the same type of offense, will deliver incapacitation and deterrence benefits that others will not.
To be sure, when it comes to figuring out whether marginal arrests are more burdensome in poor than middle-class neighborhoods, many of these considerations point to more burdensome for the poor. But there is enough uncertainty here that I would be reluctant to draw any general conclusions. Bottom line: it seems to me that the residents of a poor neighborhood could rationally choose to have a higher arrest rate than the residents of a middle-class neighborhood. Sekhon’s approach, though, precludes this choice.
Maybe the focus should instead be on political empowerment of the residents of poor neighborhoods, particularly as to broad matters of police strategy.
In this regard, I think Sekhon is right to focus on the importance of information. For instance, the fights over racial profiling a decade ago have resulted in there being much more publicly available information on racial disparities in traffic stops, which helps the opponents of such disparities to engage in political organizing and advocacy more effectively. But bare racial breakdowns only scratch the surface of the sort of information on crime and policing that might help the members of traditionally marginalized communities to judge for themselves whether they are being well-served by policing strategies and to advocate effectively for change when they are dissatisfied. The Milwaukee Police Department, for instance, seems to do a very good job of sharing a wealth of data with the public that allows strategies to be assessed along many different dimensions.
Of course, it is important also to have a police department that is responsive to feedback from neighborhood groups, as well as effective systems of political accountability for policing strategy at the local level. (I bemoaned the extent to which the federal goverment has tried to control local drug enforcement strategies in my article at 57 Vanderbilt L. Rev. 783 (2004).)