Originally published at Cato Institute by John Pfaff | April 16, 2019
Case: Whren v. US
I am pleased to have this chance to share some thoughts on Sarah Seo’s new book, Policing the Open Road, about the relationship between our car-centered culture and policing. The fascinating historical story she tells—how the introduction of the mass-produced car, which seems so unrelated to criminal justice, led to fundamental changes in policing—alone makes her introductory essay worth reading. Like: why are the police trained to be polite? Because when they started policing roads, they suddenly came into contract with middle- and upper-class citizens, and their prior gruffness was no longer acceptable.
Perhaps more important, Seo’s book is part of a critical refocusing of our discussion of criminal justice reform, away from mass incarceration (where I spend most of my time) and towards mass punishment. Most reform discussions focus on prisons, and prison populations are the central metric by which we compare ourselves to other countries and our own past. But prisons, and the generally serious offenses that send people there, are just the tip of the punishment iceberg. While there are about 1.4 million people in prison, we send over 10 million to jails every year, and we make about 10 or 11 million arrests—most of which are for offenses that will never send someone to prison (only about 500,000 are for serious violence and 1.3 million for serious property crimes).
In other words, while our reform efforts tend to focus on felonies and prisons—on incarceration—almost everyone’s contact with criminal justice is through the far vaster, far more invisible, and far more disorganized world of Misdemeanorland (to steal Issa Kohler-Hausmann’s fantastic neologism). And as people like Kohler-Hausmann and Alexandra Natapoff (in her Punishment Without Crime) have recently shown, the overall impact of Misdemeanorland surely dwarfs that of the felony system, even if it receives only a fraction of the attention. Seo’s examination of policing automobiles is an important contribution to this, since she is looking at the single most common form of police-citizen interaction (at least for those who do not live in a small subset of heavily policed urban neighborhoods), and one of the few that easily and frequently crosses the lines of race and class.
In fact, it was this universality of traffic stops that jumped out at me, leading first to one troubling observation and then to one troubling question.
To start, Seo’s account complicates some aspects of the narrative we rely on to explain why our system is so punitive, especially at the misdemeanor level. Oftentimes discussions about criminal justice reform turn to the issue of “overcriminalization,” the idea that we criminalize too much conduct that should not be a crime in the first place. By and large, this is somewhat of a red herring in the context of felonies and prison populations; even if many of the people in prison need not be there (or be there for as long), almost all have often been convicted of conduct we all agree should remain criminalized (like assault or theft). But it is not a minor point when we get to Misdemeanorland.
Misdemeanorland is defined by overcriminalization. We have criminalized as misdemeanors all sorts of conduct that is unappealing and problematic but almost certainly not deserving of any sort of criminal punishment, like jaywalking, spitting on the street—or even non-reckless speeding. And even when the conduct these low-level laws target may seem criminally problematic, the laws are often drafted so broadly that they cover all sorts of behavior they surely shouldn’t.
Most discussions of this overcriminalization of Misdemeanorland frame it as the logical end-result of America’s deep-seated racism and classism. We quickly turn to Misdemeanorland to handle things like speeding or playing loud music because of an almost instinctive desire to punish the poor, people of color, and especially poor people of color, a response that crowds out less punitive ways to address these issues.
That instinct is no doubt significant, but Seo’s account introduces an important wrinkle to this take.
When states first stated regulating driving, the people driving were far more likely to be middle- or upper-class and white—they very people we think (correctly) that the system goes out of its way to treat better. Yet even here, our instinct was to regulate driving primarily through the criminal code and police enforcement. As Seo points out, the rise of the car led to wealthier Americans suddenly having encounters with the (rapidly expanding) police, not with local and state governments coming up with new non-police ways to regulate driving. And the statutory responses were often punitive as well. In Georgia, for example, every traffic violation is a misdemeanor carrying not only the risk of a fine but of jail time.
Now, to be absolutely clear, if wealthier white Americans and their families and friends were repeatedly subjected to the indignities of our massive misdemeanor system—arrested and cuffed in public, shipped off to Rikers for a few days, and then saddled with fines and fees and restrictions on liberty for nothing more than, say, crossing in the middle of the street or driving without a seatbelt on—we would surely see a massive push for changes, and Misdemeanorland would not be nearly as invisible to most people as it is.
But Seo’s historical account points out just how deeply held our punitive instinct is. It is an instinct that has waxed and waned, to be sure—our incarceration rates have been much lower in the past, even when national politics were surely more punitive—but Seo’s story of cars and policing and driving misdemeanors is an important reminder of just how broad that instinct can be.
Seo’s discussion of the normalcy of traffic stops also brought up for me an intriguing question about policing reform. While there is a broad bipartisan consensus for prison reform, such is not the case for policing, and I wonder if traffic policing, and the civility-in-policing norms it created, is one reason why. Despite new data about the remarkable number of Americans who know someone who has had at least some contact with prisons or jails, those two institutions remain generally alien to most people. When we hear that conditions are awful or abusive, many if not most voters do not filter that information through any personal experience.
Such is not the case, however, for policing. Far more people have had interactions with the police than with prison or jail, and most of those interactions have been via traffic stops—stops where the police, as Seo points out, have been trained to be more polite. So when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts. “Well, all my interactions with the police have been polite and respectful” might be anecdotal reasoning, but it is often compelling anecdotal reasoning.
Obviously the solution isn’t to encourage police to be less civil when stopping suburban motorists. But by highlighting the unique ubiquity of police vehicle stops, Seo may have also shed light on why efforts to reform policing seem to face more of an upward battle than those to fix other aspects of our flawed criminal justice system.