America’s political economy is associated with high levels of social disorder and criminal violence because of the socially disruptive and criminogenic processes it sets in motion. That same political economy has implications for crime control. Scholars have long known that, because of America’s distinctive political institutions, its criminal justice system is more directly exposed to political forces than those of other democratic nations. I will argue that American criminal justice is also more affected by socioeconomic forces in ways that press toward a greater deployment of penal control.
We have seen why American authorities default to a penal control regime. But why are these penal controls so aggressive? Compared to other developed nations, American police more readily draw and fire their weapons; prosecutors are more inclined to remand suspects in custody and press for severe sentences; judges send a much higher proportion of offenders to prison for much longer terms; and parole boards are less likely to grant early release. How are we to explain these differences?
My hypothesis is that what makes America’s criminal legal system different from other nations in these respects is the exceptional socioeconomic background against which America’s penal state operates. American criminal justice actors think and act differently because the social milieus where many offenders live are, in fact, more disorganized, more violent, and more gun-laden than is the case elsewhere and because their perceptions of these areas are laden with stereotypes born of racism and social distance.
The conduct of American police and criminal justice officials is profoundly affected by the fact that so many of the neighborhoods in which they work are disorderly and dangerous, with high levels of gun crime and lethal violence. Because these socially disorganized settings lack the usual informal controls of family, employment, and community, penal state agents are unable to build on a solid platform of already-existing normative constraints. Nor can they leverage the disciplines of family or work or reputation to aid them in their efforts. Penal controls must be made to work all by themselves, unsupported by a functioning background social order. Consequently, they are ramped up and made more severe than would otherwise be the case.
America’s police officers are known for their aggressive, “warrior-style” demeanor, and they kill civilians at a much higher rate than the police of any comparable nation. I want to suggest that an important part of the explanation for this has to do with the social milieus in which police officers carry out their duties.
Law enforcement in the United States frequently operates in disorganized, dangerous, gun-laden environments, more like Brazilian favelas than British housing schemes or European public housing. The result is that police officers are often afraid for their lives. This background danger is a prominent theme in American police culture, which insists that each time officers begin a shift, they are “putting their lives on the line” and that they should make it their first concern to go home alive at the end of the day. It is also a leading theme in police training. Police recruits are taught to fear for their lives at all times, especially when engaging in risky encounters such as “stop and frisk,” traffic stops, and domestic violence call-outs. By contrast, in the relatively gun-free nations of Europe, “[p]olice have much less reason to fear civilians in Europe, and civilians there don’t have to worry about how they can demonstrate that they are not carrying a gun.”
American police are frequent victims of homicide. Between 2000 and 2021 some 1,166 were feloniously killed in the line of duty, with 73 such deaths occurring in 2021, a level of danger that is “vastly greater in the United States than in other developed nations.”45 For every police death by shooting, there are four times as many occasions on which police officers are shot at—which is to say, “assaulted with deadly force.” A further 40,000 American officers are assaulted each year by unarmed civilians, with 12,000 of these resulting in reported injuries. Braga and Cook report that “[r]oughly 10% of all [American] police officers are assaulted per year” adding that “[w]hen fatal and non-fatal assaults are combined, police experience the highest rate of violent victimization in the workplace.”
Gun possession is exceptionally widespread in the United States. That police officers are also armed means that at least one loaded gun is present in every encounter. In some 10 percent of line-of-duty homicides, officers are shot with their own guns. More than in any other developed nation, American police officers have reason to fear they may be killed while doing their job.
These background facts affect how American police officers conduct themselves. In other dangerous occupations, deaths and injuries occur because of carelessness, human error, or lack of training and experience. Police officers have accidents too—particularly in high-speed chases—but they mostly face death and serious injury because of violent acts on the part of others. Being careful in these situations means being in control. If American police officers routinely take charge of a situation, demanding total compliance from civilians, it is because they are trained to “treat every individual they interact with as an armed threat and every situation as a deadly encounter in the making.” Michael Sierra-Arévalo reports that in police academy classes across the United States, trainee officers are made to watch a dashcam video from 1998 in which Deputy Kyle Dinkheller is shot and killed by the White driver of a pickup truck in the course of a routine traffic stop, the lesson being that “any seemingly routine interaction can snap to lethal violence, and that everyone is a potential assailant.” One instructor told Sierra-Arevalo that the curriculum is designed to teach recruits that “Everybody wants to kill you.”
Police-involved killings—civilians killed by police and officers killed by civilians—are much more prevalent in the United States than in other developed countries. The background presence of firearms is a big part of this story, but so too is what O’Flaherty and Sethi call “the fear hypothesis.” As these authors point out, a climate of fear “amplifies violence by increasing the incentive to kill preemptively.” Police kill for fear of being killed, much in the way that gang members kill when they believe they will be killed if they don’t act accordingly. And though these fears are frequently exaggerated and shaped by misleading stereotypes, they are not without a rational basis. The likelihood of a suspect being armed and dangerous may be low, but the probability is very much greater than in comparable nations. And when low-probability events can have disastrous consequences, the rational response is to proceed with extreme caution or else resort to preemptive action.
Perceptions of danger are always prone to exaggeration. Studies show the extent to which US police training emphasizes and exaggerates “the danger imperative.” And an exaggerated sense of danger leads, in turn, to unwarranted, preemptive violence, generally against groups that are negatively stereotyped. As Rosa Brooks writes “When you start with the belief that you’re in constant danger, you’re more likely to perceive situations as threatening. You’ll shout and jump at a girl for reaching into her handbag in her own living room. You’ll stop and frisk people who look at you funny and put their hands in their pockets. And maybe, eventually, you’ll shoot and kill a driver who’s reaching for his wallet, or a child playing with a toy gun.” But relative to other developed nations, many of the neighborhoods where American police are deployed are, in fact, dangerous, with rates of gun possession, gun crime, and homicide that are off-the-charts high in comparison. As Boston’s police commissioner remarked, “We have so many guns that deadly force, to us, is always there.” Having guns in the background of every encounter conditions how American police officers comport themselves and how they view on-the-street encounters. Improved training and accountability could, no doubt, reduce the frequency of police killings, as the NYPD experience indicates. And progress in ending racist attitudes and perceptions could reduce the extent to which Black Americans are overrepresented in the number of civilians killed. But until there is a major reduction in gun crime and homicides, it is unlikely that American police violence will approach the much lower levels of otherwise similar countries such as Canada, the UK, or Australia.
The disorganized, dangerous character of America’s poorest neighborhoods also influences other aspects of criminal justice decision-making. In her study of misdemeanor justice in New York City, Issa Kohler-Hausmann showed that the issue determining how prosecutors and judges deal with their cases chiefly concerns the nature of the person before them: “Is this defendant a manageable person?” As she notes, most misdemeanant defendants are “people hauled in from disorderly places,” leading court actors to presume that “almost anyone brought into misdemeanorland is in need of some level of social control.”
When prosecutors and judges know that offenders lead chaotic lives, lacking stable homes, jobs, and income, it is hardly surprising that they choose to send so many of them to jail—the United States has a rate of pretrial detention much higher than comparable nations—or subject them to marking and monitoring. Officials in other nations release most defendants awaiting trial and impose fines or suspended sentences in a majority of adjudicated cases, because they feel confident that these offenders pose no danger to the public. And they rely on the background availability of free public services to treat mental illnesses or addictions, to provide housing support and essential social services, and to limit the extent to which offending individuals are socially excluded. American prosecutors and sentencers operate against a very different social background.
Sentencers in European jurisdictions utilize stand-alone fines as a standard penalty for low- and mid-level criminal offenses. In the United States, criminal courts rarely use them, other than for traffic violations or corporate crime cases. As noted previously, this might seem puzzling, given the importance of the cash nexus in American society and the paucity of resources in local court systems. But when we consider that many defendants in the United States are too impoverished to pay and regarded as too dangerous or disorderly to be merely fined without imposition of further controls, the puzzle disappears.
The same is true of probation and parole. In many European nations, these are social work measures intended to rehabilitate or resettle offenders. In the United States, they are ambulant forms of penal control, undertaken by armed officers who consign their clients to custody at the first sign of noncompliance. Probation and parole officers in America are judged by how well they prevent reoffending, their chief concern being public safety, not client well-being.
As compared to other nations, prisons and jails in the United States exhibit high levels of security, extensive use of solitary confinement, few amenities, and high background levels of violence. And the primary role of prison staff is that of ensuring security rather than encouraging rehabilitation. Again, the perceived dangerousness of the people in prison explains an essential part of the control regime.
Compared to other affluent nations, the social background against which American criminal justice operates is an exceptional one that produces far-reaching effects. American officials decide the fates of suspects, defendants, and offenders under conditions of uncertainty, with scant information and limited time. They do so against a background of social disorganization and lethal violence that is objectively worse than that of any other affluent nation. And they do so in the full awareness that any perceived leniency in their treatment of offenders may affect their political careers—and in the case of police and prison officers, their physical safety—while aggressive choices will usually be met with approval. In these circumstances it should not surprise us that their conduct is so aggressively control-oriented.
The peculiar character of America’s political institutions, together with economic constraints and limitations of local and welfare state capacity, shape the nation’s crime control in distinctive and sometimes exceptional ways, making for a more localized, more politicized, more penal, and less welfarist form of criminal justice than exists in other nations. But as a comparative matter, what chiefly distinguishes crime control in the United States is the socioeconomic context in which it operates.
In no other developed nation do police and criminal justice officials work against a social background that is so frequently disorganized, so extensively armed, and so lethally dangerous. This danger is acknowledged by America’s courts, which have shown a marked reluctance to hold police officers responsible for using force against civilians or to restrain the discretionary use of penal power. It is recognized by that large part of the American public that supports “getting dangerous criminals off the streets.” And it is acknowledged by American legislators when they enact extraordinarily aggressive regimes of policing and punishment and justify them in the name of public safety.
