The Law and Economics of De-policing

There is mounting evidence for what some have dubbed “De-Policing" — police retreat in the face of hostile public scrutiny, often in the wake of a highly publicized incident of police misconduct. Recent data reviewed by Professors Richard Rosenfeld and Paul Cassell in their important papers document sharp spikes in violent crime in major cities following the outbreak of widespread protests against police violence beginning in May 2020, after the killing of George Floyd by Minneapolis police officers. It is a devilishly difficult business to ascertain the causes of changes in crime rates. Even granting the ineradicable uncertainties, this article argues that there is an impressive case that the 2020 crime spike reflects de-policing. This paper first examines the data reflecting what Professor Cassell dubs a "Minneapolis Effect" because it followed the police killing of George Floyd in Minneapolis, and then considers the likely mechanism that produces this type of de-policing effect. In particular, the law and economics of policing suggest the most likely mechanism for the decline in law enforcement activity documented by Professor Cassell. Because police officers internalize few, if any, of the benefits of effective policing, when they perceive a risk that they will be made to internalize its costs, over-deterrence is the likely outcome. Anti-police protests demanding that police officers be disciplined or otherwise penalized suggest to officers an increased probability that they will internalize the costs of policing without internalizing its benefits. This theory of police incentives suggest that de-policing is the likely result, at least when the threat of sanctioning police officers is perceived as credible. There are important policy implications of this conclusion. Policing reforms must be alert to the risk that they will over-deter officers, and thereby spur increases in violent crime, which will impose disproportionate costs on disadvantaged communities and people of color.