Overcriminalization Kills


The news is full of stories about American police killing civilians.  In 2020, there were 1,021 fatal police shootings and, as highlighted by the Black Lives Matter movement, the rate of fatal police shootings among Black Americans is much higher than that for any other ethnicity.  (https://www.statista.com/statistics/585152/people-shot-to-death-by-us-police-by-race/).

Why are cops killing so many Americans and, particularly Black people?  One obvious culprit is overcriminalization.  In many situations where police end up killing civilians, the police initiate the interactions with the civilians over relatively trivial matters, not as part of any investigation of violent crime.  George Floyd was accused of trying to by a pack of cigarettes with an counterfeit $20 bill. Eric Garner was suspected of selling loose cigarettes on the street.  Daunte Wright was suspected of driving with expired vehicle tags, and with an air freshener hanging from his rearview mirror.  In each these cases, police officers chose to initiate a detention where there was no discernible victim, and the situation escalated into a tragic death.

The Racist History of Policing and Gun Control Laws

The history of policing in America shows how we arrived at this sad state of affairs.

According to crime historian Gary Potter, police forces used to be very informal.  (https://time.com/4779112/police-history-origins/). Communities would organize a “night watch,” often consisting of local criminals or thugs who volunteered or were put on the watch as a form of punishment.  In the South, however, these loose-knit police forces evolved into well-oiled machines designed to perpetuate slavery, including chasing down runaway slaves and preventing slave revolts.  And following the Civil War, during Reconstruction, these police forces were tasked with enforcing segregation and the disenfranchisement of freed slaves. Meanwhile, in the North, police forces were expected to maintain “law and order” as defined by the dominant interests, which often involved keeping tight control over minority groups.

President Richard Nixon exacerbated the racist aspects of policing by specifically targeting Black people and culture as he ramped up the War on Drugs in 1971. Nixon’s domestic policy chief John Ehrlichman as admitted that Nixon’s declaration of a war on drugs was  “really all about” disrupting Black (and hippie) communities.  The idea was to “arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news” by using the ruse that it was all about drugs.  (https://eji.org/news/nixon-war-on-drugs-designed-to-criminalize-black-people/).  The fear and paranoia fostered by drug war propaganda eventually led to the 1994 Biden Crime Bill cementing mass incarceration of non-violent minorities as official federal policy.  Today, two-thirds of those in prison for drug offenses are racial minorities, despite similar rates of drug use among different racial groups, and half of all federal prisoners are in incarcerated for drug offenses.  Institutions operate largely based on habit and inertia, and these racist origins of policing resulted in racist policies that have continued to this day, even if most current police officers are not themselves racist.

Criminal laws restricting gun ownership are also deeply rooted in racism and attempts to subjugate Black communities.  “Slave Codes” prohibited slaves from owning guns, for obvious reasons.  After the Emancipation Proclamation, states instituted “Black Codes” continuing to prevent Black people from owning guns, on the supposed basis that Black people were not citizens, and thus did not have rights under the Second Amendment to the US Constitution (a view upheld by the US Supreme Court in the notorious Dred Scott decision).  After Black people got their constitutional rights under the Fourteenth Amendment in 1878, states imposed high taxes and other purportedly neutral burdensome licensing requirements in an attempt to price Black people out of the gun market.  In 1967, California Governor Ronald Reagan signed the Mulford Act, as a direct response to the Black Panthers’ open carry patrols in Oakland, and banned the carrying of loaded weapons

To this day, gun control laws tend to be much more strict in regions with large Black populations.  Notably, alleged violations of gun control laws are one of the main justifications used by police officers today to detain Black people.  In the recent Minnesota police killing of Daunte Wright, police justified their detention of Mr. Wright on the basis that he had an outstanding arrest warrant issued after he failed to appear for a hearing to deal with a gross misdemeanor charge when he allegedly got caught carrying a pistol without a permit.  Disarming Black people also makes them more vulnerable to abuse and excessive force from police officer and criminals who can target and take advantage of them knowing they are unable to defend themselves.

Continued Targeting of Low-Income Minorities

Today, many people in lower-income and majority-minority neighborhoods, have the impression that police are unfairly targeting them, whether for “driving while black” or congregating on street corners with friends.  Police start by detaining people for suspicion of lower-level victimless “crimes,” and then end up searching, interrogating, and putting their hands on them.  Naturally, this can be a frustrating situation for civilians, especially when it repeatedly happens to them and their friends and family.  People get the impression that the police are not working to help or protect them, but rather to bully and harass them and dig through their lives in search of some technical violation that no one ever complained about but which could raise money for the government and put them in jail.  Police officers often take people’s cash that they find during these encounters, under the ridiculous theory that anyone with cash must have acquired it illegally, and knowing that it will be difficult for anyone to prove it came from a “legitimate” source.  Some police officers even have ticket quotas, where they are expected to dole out a minimum number of citations for trivial conduct to meet government fundraising goals, whatever the true threats and needs are in the community.  And some cities have begun issuing criminal arrest warrants for unpaid parking tickets, which disproportionately affects lower-income minorities and gives police officers yet another excuse to detain and arrest people.

People who are both wealthy and white generally have fewer problems with being bullied and harassed by the police.  They tend to spend less time on the “street,” having access to large homes where they can congregate away from the prying eyes of the police.  Police officers also tend to spend less time trolling around wealthier neighborhoods because they are relatively quiet and there is less activity in public spaces.  And people with less money tend to commit more Vehicle Code infractions because, for example, they can’t afford to renew their vehicle registration on time, or have older vehicles that do not meet all the modern standards.  Accordingly, the perception of many lower-income people and racial minorities that they are targeted by police is usually true.

Qualified Immunity Promotes Police Violence

Eliminating qualified immunity will also help to reduce police violence.  The qualified immunity doctrine was created by the US Supreme Court out of thin air during the civil rights movement, supposedly to protect the police from frivolous lawsuits and financial liability in cases where they acted in good faith.  The law has made it very difficult to sue the police for using excessive force.  Because of the qualified immunity doctrine, in order to sue the police, a civilian must point to another case decided in a published appellate opinion involving exactly the same fact pattern in which the appellate judges found the police at fault.  Qualified immunity has been used to dismiss cases against police officers where they shot and killed the driver of a fleeing vehicle in order to avoid a car chase, where they shot a 10-year old child while attempting to shoot a non-threatening family dog, and where they body-slammed a 5-foot-tall woman for walking away from them.

Thankfully, states have begun taking steps to reform the doctrine, with New Mexico, Colorado, and Connecticut recently deciding to eliminate or reform qualified immunity in its state courts.  Making it easier to sue the police will create financial incentives for police departments to reform themselves, and to not react with violence in response to relatively minor offenses involving no victim.

Ending Overcriminalization

How can we as a society improve the situation?  We can try to encourage the police to go about their business in a less violent manner, but every police detention is an inherently tense situation, and most police do not intentionally set out to kill people in their community.  A more rational approach would be to change what we are asking the police to do.  The police don’t write the criminal laws, but they are asked to enforce them.  We can all agree that violence and unwelcome sexual conduct should be illegal, as such behavior harms people (known as victims).  By seeking out and arresting people who engage in this type of conduct, the police are truly protecting and serving their communities.  The problem, however, is that our politicians have chosen to classify all kinds of other behavior, involving no discernible victim, as criminal.  The entire War on Drugs falls under this umbrella, and is the root cause of many unwelcome police encounters.  Classifying minor Vehicle Code violations as crimes  also empowers the police to initiate countless detentions in situations where no one was ever harmed or subjected to undue risk.  And the Department of Justice estimates there are at least 4,500 different statutory federal crimes, and as many as 300,000 federal regulatory crimes.  Having this many criminal laws on the books makes it so almost everyone is a criminal, and gives law enforcement officers extremely broad powers to detain people over the most minor and technical issues.

Progressive prosecutors like Los Angeles District Attorney George Gascon are attempting to correct the course of policing by declining to prosecute certain victimless crimes and reducing the sentences sought for non-violent offenders.  Subject to narrow exceptions, Gascon directed that his office will no longer file any criminal charges for trespass, disturbing the peace, driving without a valid license or with a suspended license, criminal threats, drug and paraphernalia possession, minor in possession of alcohol, drinking in public, being under the influence of a controlled substance, public intoxication, loitering, loitering to commit prostitution, or resisting arrest.  (https://da.lacounty.gov/sites/default/files/pdf/SPECIAL-DIRECTIVE-20-07.pdf). This sends a strong signal to police officers that they should no longer arrest people for these offenses, even though they remain crimes under state law.

These prosecutorial reforms can have a great effect, but do not help people in counties without progressive prosecutors, or prevent the next Los Angeles prosecutor from ramping up victimless prosecutions again.  Real reform will require changing the actual criminal statutes and deciding that many types of conduct formerly classified as criminal is no longer a crime.  Over time, we have added more and more crimes to the law books, but have rarely eliminated them.  This has given police officers more and more power to detain, harass, and bully racial minorities, and when this is repeated over and over again, all across the country, it leads to many civilians being killed by the police, whether “accidentally” or intentionally.

We can only put so much blame on police officers for carrying out the tasks that politicians ask them to do.  Police are generally not expected to evaluate the morality of the laws they are asked to enforce.  By eliminating criminal laws that involve no identifiable victim, we will greatly reduce the number of tense encounters between civilians and police that tend to escalate into violence.  At the same time, we will allow the police to focus their efforts on solving violent crimes and dealing with any other threats faced by their communities.  And, citizens’ trust and respect for law enforcement officers will grow, as people will see that the police are now working to help people in their community, rather than trying to arrest and imprison people for consensual behavior.

Author: Raza Lawrence ESQ. & Allison Margolin ESQ. (Dark Matters)

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