Does Police Immunity for Wrongful Arrests Really Deter Crime?

In the wake of the ongoing debate over police misconduct, a new economic study considers the cost of granting full immunity to officers for wrongful arrests and detention of innocent people. While in the short run such immunity might deter crime, it is likely to reduce police competence at identifying real criminals, the authors said.

In the wake of ongoing attention to police misconduct, a new economic study considers the cost of granting full immunity to officers for wrongful arrests and detention of innocent people, instead proposing a model of “qualified immunity.”

According to the paper forthcoming in Economic Inquiry, many police jurisdictions grant officers immunity from penalties for these errors under the belief that harsh discipline would cause them to become “timid” during encounters with suspects, and potentially weaken law enforcement efforts. However, economists have long argued that wrongful arrests also lower the “opportunity cost” of committing a crime.

In order to understand the trade-off between punishing police for wrongful arrests on the one hand, and incentivizing the kind of “proactive enforcement efforts” that sometimes lead to errors on the other, economists Ajit Mishra, Senior Lecturer in the Department of Economics at the University of Bath (UK), and Andrew Samuel, Associate Professor in the Department of Economics at Loyola University, studied three different types of “penalty regimes” in the U.S.

The first category consists of those jurisdictions that grant full immunity from penalties; the second, harsh penalties for wrongful arrests and detentions; and the third, “qualified immunity,” where officers are punished only if they acted incompetently (rather than committing an “honest mistake”).

Honest Mistake, or Incompetence?

For the sake of this study, authors assumed that wrongful arrests are not “honest mistakes” and are therefore caused by incompetence, as opposed to indifference, lack of will, or malice.

The study found a negative “competence effect” on jurisdictions that do not enforce penalties for wrongful arrests, concluding that “full immunity gives officers weak
incentives to invest in costly measures that make them more capable of distinguishing criminals from innocents.”

Instead of decreasing crime, write the authors, immunity may increase illegal activity by providing no reason for police officers to increase their competence.

While admitting there was no “econometric” evidence for the effects of granting immunity,  they cited David Simon, the former Baltimore Sun crime reporter,  as providing anecdotal support for the notion that, while not punishing officers for false arrest might deter some crime, full immunity lowers police competence to identify criminals over time.

In on online article titled “The Audacity of Despair,” Simon described a campaign by Baltimore police to restore order by placing many innocent individuals in jail. In order to protect themselves from lawsuits, Simon wrote, “the [police] actually had police supervisors stationed with printed forms at the city jail that said…you can go home now if you sign away any liability the city has for wrongful arrest, or
you can not sign the form and spend the weekend in jail until you see a court commissioner…thousands of people signed that form.”

The study also found a relationship between immunity and decreasing police competence when faced with more complex cases. This finding is particularly critical when considering the broad immunity granted to officials conducting anti-terrorism investigations.

Qualified immunity, however, appears to mitigate both the “timidity” and “competence” effects on law enforcement.

The authors wrote: “When the judicial authorities can observe the officer’s competence decision, then qualified immunity does raise compliance, reduce harassment and wrongful arrests, and improve the competence of officers”– but only if these authorities have complete information regarding an officer’s competency choice.

“We believe that this result is especially important in light of U.S. Court rulings that
have concluded that as long as the officers are acting “competently” they are “immune from being sued for apprehending an innocent individual,” the paper said.

Ajit Mishra is a senior lecturer in Economics at the University of Bath. Andrew Samuel is an associate professor of Economics at Loyola University Maryland. The full report, “Law enforcement and wrongful arrests with endogenously (in)competent officers,” is forthcoming in the April issue of Economic Inquiry. Readers can request an online early publication version from the authors here.  This summary was prepared by TCR Deputy Editor Victoria Mckenzie.