An Economic Theory of Law Enforcement


Edward Lawson | Criminal Justice | Theory | March 29th, 2018



Law enforcement is a necessary endeavor in society. Government makes laws, but someone must enforce those laws, through violent coercion if necessary. The American ideal is that the people elect the government and the government serves the people, so naturally the police serve the people as well. However, the actual activities of the police call this normative account into question. I argue that government--the state--serves the will of anonymous, extraordinarily wealthy oligarchs, and it passes laws that benefit them at the expense of the rest of society. In addition, I argue that the police are the primary tool of enforcing compliance with the wishes of oligarchs among society, and that they alter their behavior based on the socioeconomic conditions of the area in which they operate.

The recent deaths of individuals such as Michael Brown in Ferguson, MO and Walter Scott in North Charleston, SC, are only the most recent, high-profile incidents of police acting according to this purpose. Police violence, as well as mass incarceration, maintain a state of fear among the working class, as well as the ongoing division between races within the working class, in order to prevent organization for common cause. Oligarchs--the anonymous, incredibly wealthy individuals who exert disproportionate pressure on the state to do their bidding--use institutions such as the police to hold and expand their power.

Operating behind the state provides oligarchs with a veneer of legitimacy, particularly in a democracy. That legitimacy extends to the police, who have state-sanctioned authority to enforce compliance with the law and punish noncompliance with violence. However, rather than using that authority to benefit society, they use it to oppress the poor and placate the affluent--those who are comparatively wealthy but not oligarchs themselves.


On the Origin of States

Law enforcement organizations are agents of the state, and therefore the goals of the state are also the goals of law enforcement. This connection means that, in order to determine why members of law enforcement behave in certain ways, it is necessary to discuss the purpose of the state first. Fortunately, political theory devotes a great deal of attention to the origin and purpose of states. In all of the various theories on the origin of the state, the state exists as a product of individuals ceding at least some of their rights to a governing body. This body makes laws according to, generally (and idealistically), the will of the population it governs. However, what happens when some members of that population possess influence over the government in excess of others? What happens when a small minority dominate that government, and use it to benefit themselves rather than society?

In essence, this is how Winters (2011) views society, particularly in the United States. He argues that most societies are ruled by oligarchs, and he defines oligarchs as those who control large concentrations of material resources--wealth--and use those resources to defend and increase their wealth and position. Essentially, oligarchs use wealth to protect and improve their dominant position within society.

One purpose of the state is to protect property rights. In a Hobbesian state of nature, those who possess property are under constant threat of its loss to rivals who desire it. Therefore, individuals form states, in part, to legitimize claims of property rights and protect them from others who would try to take property away. The legitimized defense of property rights by the state is what Winters (2011) refers to as property defense, which is the first mechanism of oligarchs' wealth defense. The second, income defense, comes after property is secured. Income defense is the use of wealth to manipulate government into passing laws that protect the income of oligarchs as well as their property, at the expense of other citizens.

Using the mechanisms of wealth defense essentially subordinates the state to the oligarchs. The state, therefore, becomes an agent of oligarchs. The state's purpose is to preserve and promote the oligarch's power at the expense of the rest of the population and using the state as its defender provides a veneer of legitimacy. The oligarchs need the state to support their interests, otherwise they face the threat of losing their property, wealth, and power to an overwhelmingly large number of people who would certainly try to take that property and wealth if it were not protected by the state.


Special Bodies of Armed Men (With a Nod to V.I. Lenin)

How, then, does the state enforce the will of the oligarchs controlling it? If oligarchs are a small minority, how can they force the majority of the population to follow laws they create for the purpose of legitimizing their own wealth and power? What stops the rest of the population from simply destroying them? The answer lies in what Lenin (1918/1972) refers to as special bodies of armed men. In The State and Revolution, Lenin proposes his own theory on the origin of the state which seems closely aligned with that of Winters (2011). Lenin argues that the state is the product of irreconcilable class differences, specifically the conflict between those who own the means of production (the bourgeoisie) and those who produce (the working class).

The state is, therefore, a means for the oppression of one socioeconomic class by another. Oligarchs hoard wealth and use it to increase their power (and wealth) at the expense of the larger society. The rest of society prefers a societal organization that benefits the majority and leads to a more egalitarian distribution of material resources. The solution to this irreconcilable conflict is for the oligarchs to use their wealth and the associated power to construct a state that legitimizes their control of society.

The special bodies of armed men are the tool oligarchs use to enforce compliance with the state (Lenin 1918/1972). Specifically, these bodies are the military and the police. Both of these institutions have state-sanctioned authority to use violence in order to protect the state and force compliance with its laws. However, their domains are separate. The military address foreign threats to the state (and to the wealth and power of the oligarchs controlling it). The police address domestic threats and enforce compliance among citizens (Kraska 2007).

As Lenin (1918/1972) writes, ``A standing army and police are the chief instruments of state power." They are, then, the chief instruments of oligarchical power. The state exists to grant legitimacy to oligarchy and promote the interests of oligarchs. Special bodies of armed men (and women, of course) --the military and the police--exist to promote the interests of oligarchs as well. As agents of the state, they have legitimacy that an armed band of hired mercenaries would not. They have uniforms, rules of engagement, codified laws and policies, etc., to convey legitimacy to the public. But they are still only tools.

Indeed, an armed band of mercenaries, while more directly controllable by oligarchs, would also be counter-productive. As Winters (2011) argues, part of the power of oligarchs is that no one knows who they are. Hiring an armed mercenary group to enforce their will is a highly visible act and also lacks the legitimacy of a state-sponsored police force. The visibility shows the general public who the oligarch is that hired the group. The lack of legitimacy means that the public have much less incentive to comply with the group's instructions. Therefore, though hiring an armed band would give an oligarch more direct control, operating indirectly through control of the state is preferable.


Protect and Serve or Patrol and Control

As this paper discusses law enforcement, I leave the topic of the military to others. I have explained the origin of the state as a means for oligarchy to protect and expand its power, as well as the existence of police as a tool for enforcing the will of oligarchs. The next logical step, then, is to address why some people receive harsher treatment from police than others. If law enforcement organizations exist to enforce the will of the state, which exists to legitimize the will of oligarchs, why is every state not a tyrannical dictatorship? There are several reasons.

One may assume that, for this theoretical framework to hold, then police should be violently oppressing everyone within a society. This is a flawed conclusion. First, citizens who are not wealthy enough to be oligarchs but are what Winters (2011) calls the "merely affluent" have a considerable stake in maintaining the society's respect for property rights and protection of incomes even if they do not exercise control over the state or have as much wealth as the oligarchs who do. These merely affluent citizens are not wealthy enough to exert control over the state, but they are wealthy enough to have lives of relative comfort which they do not want to jeopardize. A regime that oppresses all citizens risks encouraging the affluence of society to pool their resources in order to fight against the oligarchs even with the protection of the state. Those pooled resources, combined with sheer numbers as the lower class joins the effort, have a real chance of overwhelming the oligarchs despite their wealth advantage. In particular, the police and the military may join the side of the oppressed rather than stay with the oppressors, which eliminates the state's means for enforcing the oligarch's will.

The affluent are also much more visible. They are typically community leaders or, at least, respected residents. They know each other. The media recognizes them. A regime that turns oppressive against the affluent also risks exposing the oligarchs to media scrutiny, which could have the effect of rallying the affluent from all of society to a common cause of self-defense.

In addition, the limited wealth of the affluent provide an incentive to not ``rock the boat." Just as the oligarchs want to protect their wealth, so do the affluent even if their wealth is considerably less. Without the pressure of a tyrannical regime, they have little incentive to resist the state and risk losing their relatively comfortable position.

Instead, oligarchs direct the power of the state--and, by extension, the police--against the poor. The poor are more numerous, which by itself presents an increased threat. If the lower class could unite itself against the oligarchs, no amount of material resources could stop them. However, they are less able to organize than the affluent for a few reasons. First, they are much less visible despite their numerical advantage. The poor do not receive much media coverage (except, perhaps, to demonize them) and are not typically well known in a community. Second, those who join the military and police typically come from the poorer sections of society. This means that, essentially, the state can effectively divide much of the lower class against itself. Third, they spend most of their time focusing on meeting basic survival needs and do not have the time or energy to organize themselves as the affluent might. Fourth, in addition to lacking time and energy for organization, they also lack the material resources necessary for mounting a large scale and sustained organizing effort.

This last point is important for another reason: although the poor lack the means to organize, they also have the least to lose from trying. If they manage to overcome the impediments to mounting an organized opposition to the oligarchs, it is likely to be much more radical precisely because they risk so little. As opposed to the affluent, the poor have much less incentive to avoid ``rocking the boat" in order to protect what they have. They have, essentially, nothing, and have nothing to lose if they oppose the oligarchs and fail.

For these reasons, oligarchs are more likely to use state power to oppress the poor and placate the affluent. Police enforce the laws of the state, and the state passes laws to benefit the oligarchs, so the laws of the state and the behavior of the police in enforcing those laws will mirror this purpose. This leads to the dichotomy of protect and serve versus patrol and control.

Protect and serve is the normative idea of policing as experienced by the affluent. The police are public servants. They are trustworthy, kind, friendly, honest, brave, etc. The affluent tell their children that they can always go to a police officer for help. The affluent trust the police to enforce the laws of the state because the laws of the state are designed to maintain their comfortable position. The police protect law and order in society. If a member of the affluent violates the law and pays a fine or goes to prison, it is that person's fault for violating the law, but they can make bail, continue with their lives, and receive a capable defense in a fair trial. The police only enforce law. They do not have much discretion, nor do they allow their own prejudice to alter their behavior. They are Sheriff Andy Taylor in Mayberry.

On the other hand, the poor experience patrol and control. The police are militarized oppressors. They take on the mindset of an occupying army holding down an enemy population. Rather than serving the public, they serve the state and its oppressive controllers. The poor tell their children not to run to the police for help but to avoid them as much as possible. And, if they cannot avoid them, to peacefully and quietly comply with any and all directions in order to avoid jail, assault, or death. The poor fear the police rather than trust them, and they see the laws as a means to facilitate their oppression rather than maintain law and order. Indeed, ``law and order" is just a code phrase for the violent and discriminatory oppression of the poor and minorities. If a poor person violates the law, which they may be forced to do for survival, that person is put in jail where they sit for months, maybe years, because they cannot afford bail. They get an overworked, underpaid public defender in a trial they have no hope of winning before going to prison. After prison, they cannot find a job and will probably have to return to illegal means for survival, which repeats the same process over again. The police have significant discretion to decide how to deal with the public, and they choose to deal with the poor harshly and violently. To the poor, they are Judge Dredd.


Conclusion

In this paper, I have sketched out a theory of law enforcement that explains how police alter their behavior based on the socioeconomic conditions of the people with whom they interact. I began by describing several theories on the origin of states, highlighting the commonalities between them and linking them with a more modern theory of states which formed the foundation of my later discussion. I next explained how special bands of armed men--the military and the police--are tools used by the state to enforce the will of the oligarchs who control it, granting both legitimacy and anonymity to the oligarchs. Finally, I describe why and how police officers provide different treatment to different socioeconomic groups.

This paper is a theoretical work, but it has a great deal of potential empirical purchase. Indeed, research already suggests its accuracy. Some work demonstrates the discretion of police and how they teach the public about their place in society (Oberfield 2011). Other work suggests that police violence is a means of controlling the poor in society (Chevigny 1990) or of maintaining inequality (Hirschfield 2015).


References

Chevigny, Paul G. "Police Deadly Force as Social Control: Jamaica, Argentina, and Brazil." Criminal Law Forum, vol. 1, no. 3, 1990, pp. 389-425., doi:10.1007/bf01098174.

Hirschfield, Paul J. "Lethal Policing: Making Sense of American Exceptionalism." Sociological Forum, vol. 30, no. 4, 2015, pp. 1109-1117., doi:10.1111/socf.12200.

Kraska, P. B. "Militarization and Policing--Its Relevance to 21st Century Police." Policing, vol. 1, no. 4, 2007, pp. 501-513., doi:10.1093/police/pam065.

Lenin, Vladimir Illyich. "The State and Revolution." Marxists Internet Archive, 1999, www.marxists.org/archive/lenin/works/1917/staterev/.

Oberfield, Zachary W. "Socialization and Self-Selection: How Police oCers Develop Their Views about Using Force." Administration & Society, vol. 44, no. 6, 2011, pp. 702-730., doi:10.1177/0095399711420545.

Winters, Jeffrey A. Oligarchy. Cambridge University Press, 2012.