America is on the verge of a completely different approach to law and order. In the wake of the George Floyd killing and the massive protests against systemic police brutality and racism, the country will have to reinvent how it addresses public order. But any proposal for reform will face opposition from those who worry that a different approach to law enforcement will cause more crime. To truly succeed in making the necessary reforms, we must confront a vital misunderstanding of what causes crime and what role punishment and law enforcement play in this.
Most people think that law enforcement protects us from crime through punishment. The idea is quite simple. People fear punishment, and hence they do not commit crimes. This is called deterrence. The problem is that there is no conclusive evidence that strict punishment in and of itself deters crime, not for the death penalty, not for the Three Strikes You’re Out, and not even for the punishment of corporate crimes.
For too long, America has been under the illusion that punishment is an effective medicine against crime. This has led to the largest prison population in the world, a system of mass incarceration that has destroyed families and neighborhoods caught in circles of arrests, imprisonment, probation, and legal discrimination. And with very little to show for it. It did not help win the War on Drugs or prevent the current opioid epidemic, nor did it play a significant role in the crime declines in cities like New York. The criminal justice system does not even help to prevent crime through incapacitation, by locking offenders out of society, as this, in the most positive estimate, reduces crime by only 0.4 percent.
So, the idea that we can only get law and order through punishment is simply flawed. Surely, there should not be impunity, and punishment is definitely part of any law and order mix. But, it should just not be its chief focus. There are much better ways to prevent crime.
Think about how we stop terrorists. We do not try and deter them through strong punishment. It is hard to deter someone willing to commit a suicide attack after all. No, we try and make it harder for them to commit the act. When authorities uncovered a massive terrorist plot in the UK to bomb ten planes using liquid explosives smuggled in carry-on luggage, they started to check and regulate liquids to prevent future attacks. And we all use locks on our homes and vehicles to protect against theft and burglary. If we simply make crime harder, we need less police and less punishment.
There is a clear road ahead here. If you want to reduce homicide and many forms of gang violence, and many suicides while you’re at it, just ban guns, or at least severely restrict access to them. Just consider how none of America’s top-ten mass shootings occurred during the federal ban on assault rifles. And this has the added advantage that we deescalate police work, as cops have less reason to be afraid and less reason to act like soldiers in war zones.
Next, we can ensure that people do not have to resort to crime in the first place. We clearly know that when there is less poverty, there is less crime, and when people get to finish their education, again, less crime. So let’s fight crime by fighting poverty and investing in education.
And for those who do resort to crime, we can turn to our next layer of defense: treatment. Perhaps the most surprising thing we learned when we looked through decades of research was that rehabilitation programs that provide cognitive therapy, aggression training and substance abuse treatment actually work very well. They are shown to reduce crime between 18-60 percent.
This is just the tip of the iceberg: there are many insights about how to reduce crime based on scientific evidence. Yet most of these are ignored in our politics and in our public media. Why do we rely on scientists to fight the coronavirus, but fail to heed their findings when addressing crime and public safety?
We have simply fooled ourselves in believing that punishment and tough-on-crime are the keys. We have given in to our punishment reflex. It’s time to overcome our gut feelings, follow the evidence, and build a criminal justice system that starts to deliver the justice and safety it so direly owes us all.
Benjamin van Rooij is a global professor of Law at the University of California, Irvine, and Professor of Law and Society at the University of Amsterdam. Adam Fine is an assistant professor of Criminology & Criminal Justice and Psychology & Law at Arizona State University.