By Christopher Lewis and Adaner Usmani

Since 2014, viral images of Black people being killed at the hands of the police—Michael Brown, Eric Garner, Breonna Taylor, and many, many others—have convinced much of the public that the American criminal legal system is broken. In the summer of 2020, nationwide protests against police racism and violence in the wake of George Floyd’s murder were, according to some analysts, the largest social movement in the history of the United States. 2 Activists and academics have demanded defunding the police and reallocating the funds to substitutes or alternatives. 3 And others have called for abolishing the police altogether.4 It has become common knowledge that the police do not solve serious crimes, they focus far too much on petty offenses, and they are far too heavy-handed and brutal in their treatment of Americans—especially, Black people. This is the so-called paradox ofunder-protection and over-policing that has characterized American law enforcement since emancipation.5 The American criminal legal system is unjust and inefficient. But, as we argue in this essay, over-policing is not the problem. In fact, the American criminal legal system is characterized by an exceptional kind of under-policing, and a heavy reliance on long prison sentences, compared to other developed nations. In this country, roughly three people are incarcerated per police officer employed. The rest of the developed world strikes a diametrically opposite balance between these twin arms of the penal state, employing roughly three and a half times more police officers than the number of people they incarcerate. We argue that the United States has it backward. Justice and efficiency demand that we strike a balance between policing and incarceration more like that of the rest of the developed world. We call this the “First World Balance.” Wedefendthis idea in much more detail in a forthcoming book titled What’sWrongwith Mass Incarceration. This essay offers a preliminary sketch of some of the arguments in the book. In the spirit of conversation and debate, in this essay, we err deliberately on the side of comprehensiveness rather than argumentative rigor. One of us is a social scientist, and the other is a philosopher and legal scholar. Our primary goal for this research project, and especially in this essay, is not to convince readers that we are correct—but rather to encourage a more explicit discussion of the empirical and normative bases of some pressing debates about the American criminal legal system. Even if our answers prove unsound, we hope that the combination of empirical social science and analytic moral and political philosophy we might have to look like to be sound. In fact, because much of this essay (and the underlying book project) strikes a pessimistic tone, we would be quite happy to be wrong about much of what we argue here.

American Journal of Law and Equality vol. 2, 2022.