Today, cries to “defund the police” or “abolish the police” fill newsfeeds and protests.[1] Demands are not hard to spot—go to city hall or scroll through a social media site, and you will likely find advocates pushing to redistribute some (or all) funding from the police to community services. These calls are not new, but they are seeing new support and are more widespread success than before.[2] With police departments shrinking in some cities and advocates pushing for police to leave some work to other professionals,[3] we will likely see fewer arrests and criminal charges as a practical result of having fewer officers to make arrests and fewer police responses to situations. This article will explore what these changes mean for the criminal legal system. This article is meant to be a thought exercise in considering different outcomes and possible consequences on those in the criminal legal system in municipalities that choose to defund or abolish their police forces; it is not comprehensive nor definitive.[4] The article argues that the decrease in criminal cases will bring a much-needed decrease in the number of people living with collateral consequences of criminal convictions. Further, with a decrease in criminal cases, public defenders’ caseloads may decrease, and prosecutors’ offices may devote more resources to prosecuting police misconduct cases. On the other hand, more people may turn to civil suits to resolve issues where defendants lack the special constitutional protections provided for criminal defendants.
The movements to defund or abolish the police have taken on new momentum in the wake of George Floyd’s murder and the murders of other Black people, like Breonna Taylor, Ahmaud Arbery, and now Jacob Blake, the country’s recent reckoning with its systemic racism, and a pandemic disproportionately affecting people of color.[5] People have protested unwarranted police killings of Black people in the past, notably of Michael Brown and Eric Garner in 2014, but current protests have energy and coalition not seen before.[6] And this combination, in turn, has led to changes and achievements also not seen before.[7]
“Defund the police,” “abolish the police,” “dismantle,” “disband,” and other terms denote demands for a decreased police budget and decreased (or eliminated) number of officers.[8] Along with divestment from police departments, people want investment in communities—especially under-resourced, Black communities—that would reduce crime before it happens; studies show, for example, that investing in job training, education, housing, and healthcare (including mental health services and substance abuse treatment) reduces crime by addressing consequences of chronic poverty.[9] And, people want police officers to do less.[10] They want others who are specially trained in specific areas to bear some of the burden of responding to disturbances so that communities do not rely on police to respond to every situation.[11] Mental health professionals and social workers, for instance, would respond to mental health crises instead of police.[12] Activists point to Eugene, Oregon, where a program that sends crisis workers—instead of police—to mental health-related calls resulted in crisis workers responding to about 20% of all calls that previously went to the police.[13] The crisis workers called for police backup in fewer than one percent of those cases.[14]
These demands come in different degrees. Some calls to defund or abolish the police mean a funding reallocation: take some money from police departments (decreasing the size of the police force in the process) and reallocate that money to community services like healthcare, affordable housing, education, and job training.[15] Others want to completely disband the police force and then rebuild with new rules.[16] Still, others mean it literally: abolish the police.[17] This cohort wants to reduce the need for police in the first place through community investment, and they want to charge workers other than police to respond to harms in society.[18]
Since George Floyd’s murder, a few cities have taken steps to defund their police departments—some, like Los Angeles, decreased police budgets while Minneapolis announced plans to disband its police department entirely.[19] Others made changes long ago—smaller towns, like Deposit, New York, and Garden City, Missouri, as well as larger cities like Camden, New Jersey, dissolved their police departments before 2020.[20]
What do defunded police forces mean for criminal court and criminal law? Certainly, fewer police officers mean fewer arrests and criminal charges—especially for low-level, nonviolent crimes—as a practical result of having fewer people to make arrests. In fact, 95% of convictions are for nonviolent crimes[21]—meaning a smaller police force could bring significantly fewer convictions. In Washington, D.C., for example, almost 88% of criminal charges in 2018 were for non-violent offenses.[22] Among all D.C. arrests in 2018, the most arrests were for disorderly conduct (23%), the second most for simple assault (15%), followed by violations of release/probation conditions (12%), traffic violations (11%), and narcotics offenses (6.6%).[23] Movements to defund the police may also bring other racial justice reforms, including legislative changes like the decriminalization of marijuana and other nonviolent crimes,[24] keeping many people from criminal court. In fact, drug arrests make up the largest category of arrests nationwide.[25]
Assuming, then, that fewer police officers will result in fewer arrests and criminal charges, this means big changes for the actors and victims of the criminal legal system. First, fewer criminal charges will result in fewer guilty pleas and convictions, thus reducing the number of people under state control (in jails, prisons, and probation or parole) and the number of people living with collateral consequences of criminal convictions. Collateral consequences include losing the right to vote and to serve on a jury and legal discrimination as a result of a person’s criminal background.[26] Discrimination against individuals with criminal records in employment, housing, access to education, and public benefits is legal, federally and in most states.[27] Further, collateral consequences affect everyone with a criminal background—including those on probation or parole, of which there are twice as many people as in prisons or jails.[28] Therefore, even if defunding the police only decreased the number of people on probation or parole, the criminal legal system would see a decrease in the number of people living with collateral consequences of criminal convictions.
Those working in the criminal legal system, too, will be profoundly affected. Public defenders’ caseloads may decrease as a result of society funding fewer arrests and criminal charges. Hopefully, this will allow public defender offices, many of which are severely overworked and underfunded,[29] to at last have adequate resources to represent clients. Those offices that are already adequately resourced could now devote more lawyers to civil representation, like representing clients in eviction cases.[30]
Prosecutors’ offices will also have fewer charges to prosecute. Of course, even without police arrests, prosecutors will still be able to criminally prosecute offenders by initiating cases themselves; overall, however, the number of criminal cases will likely decrease. With decreased criminal caseloads, offices may devote more resources to other departments and priorities. Prosecutors should use these available resources to prosecute more police misconduct and police brutality cases.[31] Recent protests, for example, have seen many police offenses worth prosecuting, including “punching, kicking, gassing, pepper-spraying and driving vehicles at often peaceful protesters in states across the country.”[32] The New York Times examined videos of protests in New York “during the first 10 days of demonstrations” after George Floyd’s death and “found more than 60 videos [showing] police using force [against] protestors.”[33] A former Justice Department prosecutor who prosecuted police misconduct cases asserts that prosecutors can, and should, bring more cases against police violence, and if they did, they would make a positive impact on society and on their own work.[34] By holding police accountable and showing the public that “all abuses of power by police officers are serious,” prosecutors can shape the public’s idea of police and what constitutes police misconduct.[35]
Lastly, for victims of crime, abolished or severely defunded police departments may mean that their cases are not prosecuted, which would affect victims and possibly increase the already-existing need for representation of defendants in civil courts. For example, as a result of severely defunded police departments, more people harmed by crime could be forced to file civil suits to seek to resolve their issues in civil court, which is costly and may bring other challenges for the victim.[36] If civil cases become the norm for resolving illegal acts, we would see an overall increase in civil cases, where defendants lack the constitutional protections provided for criminal defendants, including the right to counsel if a person is poor.[37] In addition, civil offenses receive a lower burden of proof because they do not require the government to prove every element of its case beyond a reasonable doubt but rather require the plaintiff to prove their case by a preponderance of the evidence.[38] To ensure fair and accurate trials for poor defendants who cannot afford counsel, municipalities divesting from police forces may need to strengthen protections for civil defendants and expand the right to counsel for civil suits. Further, municipalities may need to examine how victims of crime are impacted by these changes, provide support for victims, and focus prosecution on violent crimes—a feasible goal given the fact that, currently, 5% of prosecutions nationwide are for violent crimes.[39]
Inevitably, today’s racial justice movement will impact the criminal legal field in substantial ways. While advocates push for change, those working in the field need to prepare for the changes coming to criminal courts and how these changes, over time, will re-shape the criminal legal system.
* Jessica Mugler, J.D., expected May 2021, The George Washington University Law School.
[1] See, e.g., Joe Heim et al., D.C. Protestors Dance Outside Mayor’s Home, Demanding She Defund Police, WASH. POST (June 13, 2020, 9:32 PM), https://www.washingtonpost.com/local/protesters-return-to-dcs-black-lives-matter-plaza-for-16th-day-of-demonstrations/2020/06/13/534d0936-ac37-11ea-a9d9-a81c1a491c52_story.html.
[2] See Sarah Holder, The Cities Taking Up Calls to Defund the Police, BLOOMBERG: CITYLAB (June 9, 2020, 1:40 PM), https://www.bloomberg.com/news/articles/2020-06-09/the-cities-taking-up-calls-to-defund-the-police.
[3] See, e.g., Minneapolis City Council Members Taking First Step Toward Disbanding City’s Police Department, CBS NEWS (June 26, 2020, 6:17 AM), https://www.cbsnews.com/news/minneapolis-city-council-members-taking-first-step-toward-disbanding-citys-police-department/.
[4] For example, the article does not cover less-progressive demands to “reform” police departments nor does it cover more-progressive demands to abolish prisons, including new successes closing prisons like St. Louis’ medium-security jail “The Workhouse.” See Doyle Murphy, St. Louis Aldermen Pass Plan to Close The Workhouse, RIVERFRONT TIMES (July 17, 2020, 5:39 PM), https://www.riverfronttimes.com/newsblog/2020/07/17/st-louis-aldermen-pass-plan-to-close-the-workhouse.
[5] See Segregation is Killing Us…, TERRITORIAL EMPATHY (July 29, 2020), https://storymaps.arcgis.com/stories/b9d7b073400c4c18950469ef79efe98a (mapping the disparate impact of COVID-19 on communities of color in New York City).
[6] See Marissa J. Lang, D.C. Protests Over the Death of George Floyd Have Grown Bigger and More Diverse. That’s Not an Accident, Experts Say., WASH. POST (June 4, 2020, 7:29 PM), https://www.washingtonpost.com/local/dc-protests-over-the-death-of-george-floyd-have-grown-bigger-and-more-diverse-thats-not-an-accident-experts-say/2020/06/04/92806226-a677-11ea-b473-04905b1af82b_story.html.
[7] See Holder, supra note 2; Karina Zaiets et al., Cities and States Across the US Announce Police Reform Following Demands for Change, USA TODAY (June 19, 2020, 10:57 AM), https://www.usatoday.com/in-depth/news/2020/06/18/2020-protests-impact-city-and-state-changes-policing/5337751002/.
[8] See Ben Kesslen, Calls to Reform, Defund, Dismantle and Abolish the Police, Explained., NBC NEWS (June 8, 2020, 4:49 PM), https://www.nbcnews.com/news/us-news/calls-reform-defund-dismantle-abolish-police-explained-n1227676.
[9] See Patrick Sharkey et al., Community and the Crime Decline: The Causal Effect of Local Nonprofits on Violent Crime, 82 AM. SOCIO. REV. 1214, 1215, 1231 (2017); Jennifer L. Doleac, New Evidence that Access to Health Care Reduces Crime, BROOKINGS: UP FRONT (Jan. 3, 2018), https://www.brookings.edu/blog/up-front/2018/01/03/new-evidence-that-access-to-health-care-reduces-crime/.
[10] See Farah Stockman & John Eligon, Cities Ask if It’s Time to Defund Police and ‘Reimagine’ Public Safety, N.Y. TIMES (June 6, 2020), https://www.nytimes.com/2020/06/05/us/defund-police-floyd-protests.html (stating that “[t]hose who support the movement to scale back the responsibilities of the police say . . . many social welfare tasks that currently fall to armed police officers — responding to drug overdoses and working with people who have a mental illness or are homeless — would be better carried out by nurses or social workers.”).
[11] Id.; see Vivianne Guevara & Nakia Winfield, Opinion, People in Crisis Need Social Workers, Not Cops, APPEAL (July 3, 2020), https://theappeal.org/people-in-crisis-need-social-workers-not-cops/.
[12] Alisa Roth, When Crisis Workers, Not Traditional Police, Respond to Calls About Mental Health, MPR NEWS (June 22, 2020, 9:00 AM), https://www.mprnews.org/story/2020/06/22/when-crisis-workers-not-traditional-police-respond-to-calls-about-mental-health.
[13] Id.
[14] Id.
[15] Ruairí Arrieta-Kenna, The Deep Roots—and New Offshoots—of ‘Abolish the Police’, POLITICO: MAGAZINE (June 12, 2020, 7:30 PM), https://www.politico.com/news/magazine/2020/06/12/abolish-defund-police-explainer-316185.
[16] Id.
[17] See Mariame Kaba, Yes, We Mean Literally Abolish the Police, N.Y. TIMES (June 12, 2020), https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html.
[18] Id.
[19] Holder, supra note 2.
[20] Scottie Andrew, This City Disbanded Its Police Department 7 Years Ago. Here’s What Happened Next, CNN (June 9, 2020, 11:23 PM), https://www.cnn.com/2020/06/09/us/disband-police-camden-new-jersey-trnd/index.html.
[21] David Remnick, Ten Years After “The New Jim Crow”, NEW YORKER (Jan. 17, 2020), https://www.newyorker.com/news/the-new-yorker-interview/ten-years-after-the-new-jim-crow.
[22] D.C. METRO. POLICE DEP’T, 2018 ANNUAL REPORT: METROPOLITAN POLICE DEPARTMENT 18 (2019), https://mpdc.dc.gov/sites/default/files/dc/sites/mpdc/publication/attachments/MPD%20Annual%20Report%202018_lowres_0.pdf (reporting data for the most recent year available).
[23] See id. at 27.
[24] See José Martín, Six Ideas for a Cop-Free World, ROLLING STONE (June 2, 2020, 2:48 AM), https://www.rollingstone.com/politics/politics-news/police-brutality-cop-free-world-protest-199465/ (including “[t]he decriminalization of almost every nonviolent crime” in a list of alternatives to policing).
[25] Remnick, supra note 21.
[26] Id.
[27] Id.
[28] Id.
[29] See Jacqueline Derobertis, Public Defenders Face Funding Crisis for Sixth Year in a Row, Report Says, ADVOCATE (Feb. 1, 2020, 7:53 PM), https://www.theadvocate.com/baton_rouge/news/courts/article_8387cd38-4531-11ea-a791-d7d207a19e71.html; Teresa Wiltz, Public Defenders Fight Back Against Budget Cuts, Growing Caseloads, PEW (Nov. 21, 2017), https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2017/11/21/public-defenders-fight-back-against-budget-cuts-growing-caseloads; Camila Domonoske, Overworked and Underfunded, Mo. Public Defender Office Assigns Case — To The Governor, NPR: THE TWO-WAY (Aug. 4, 2016, 12:34 PM), https://www.npr.org/sections/thetwo-way/2016/08/04/488655916/overworked-and-underfunded-missouri-public-defender-assigns-a-case-to-the-govern.
[30] For more advocacy on providing public defense to clients at risk of eviction, see Rachel Kleinman, Comment, Housing Gideon: The Right to Counsel in Eviction Cases, 31 FORDHAM URB. L.J. 1507 (2004).
[31] See How Prosecutors ‘Enable’ Police Misconduct, CRIME REP. (June 17, 2020), https://thecrimereport.org/2020/06/17/how-prosecutors-enable-police-misconduct/; Kristy Parker, Prosecute the Police, ATLANTIC (June 13, 2020, 1:50 PM), https://www.theatlantic.com/ideas/archive/2020/06/prosecutors-need-to-do-their-part/612997/.
[32] Adam Gabbatt, Protests About Police Brutality Are Met with Wave of Police Brutality Across US, GUARDIAN (June 6, 2020, 4:00 AM), https://www.theguardian.com/us-news/2020/jun/06/police-violence-protests-us-george-floyd.
[33] Allison McCann et al., N.Y.P.D. Says It Used Restraint During Protests. Here’s What the Videos Show., N.Y. TIMES (July 14, 2020), https://www.nytimes.com/interactive/2020/07/14/nyregion/nypd-george-floyd-protests.html.
[34] Parker, supra note 31.
[35] Id.
[36] See JESSICA E. MINDLIN & LIANI JEAN HEH REEVES, NAT’L CRIME VICTIM L. INST., RIGHTS AND REMEDIES: MEETING THE CIVIL LEGAL NEEDS OF SEXUAL VIOLENCE SURVIVORS 96 (2005).
[37] See Niki Kuckes, Civil Due Process, Criminal Due Process, 25 YALE L. & POL’Y REV. 1, 18 (2006).
[38] Id.
[39] Remnick, supra note 21.