Last week, a major federal court ruling on privacy rights highlighted the flawed, police-centric way that we typically talk about public safety. In a divided decision, the Fourth Circuit Court of Appeals barred Baltimore police from using a new aerial surveillance program to indiscriminately target and track people’s movements. Analyzing data collected through the so-called “spy plane program,” the court said, counts as a “search” under the Fourth Amendment, and therefore requires police to obtain a warrant, just as when searching a home. It’s a cutting-edge decision that comes as courts increasingly grapple with how the Fourth Amendment’s protections against police intrusions apply to new surveillance technology.
But the case is also important for the debate it sparked among the court’s judges. In dissent, Judge J. Harvey Wilkinson III, a Reagan appointee, said that restricting police surveillance will tie the city’s hands against a “serious public safety crisis.” He accused the majority of ignoring Baltimore’s high murder rate and said the ruling “leaves only hopelessness” for “the good people of Baltimore,” especially “our dispossessed communities” where rates of gun violence are highest.
Judge Roger Gregory, the first Black judge to ever serve on the Fourth Circuit, was having none of it. In response, he explained how “this critique depends upon a certain premise: Policing ameliorates violence, and restraining police authority exacerbates it. As surely as water is wet, as where there is smoke there is fire, the dissent takes for granted that policing is the antidote to killing. Thus, the dissent repeatedly evokes the grief and trauma of gun deaths only in the name of a familiar cause: police and prisons.”
The dissent’s rhetoric matches that of police chiefs clamoring for bigger budgets, particularly amid a one-year national jump in shootings. But the same assumptions are standard fare in reporting on crime and politics. Last week, for example, the New York Times equated calls for “funding the police” with “treating public safety as a central political concern” and adopting “themes of public safety.” The framing both reduces the concept of “safety” to narrow criminogenic terms (safety depends entirely on crime rates) and elevates punitive responses to crime and violence (more police, more arrests, and more incarceration) over policies that would invest in communities and promote overall health.
In his concurrence, Judge Gregory emphasized that such a blinkered view misunderstands the structural causes of violence and the futility of policing in addressing them. “I am skeptical that [the dissent’s] logic genuinely respects and represents the humanity, dignity, and lived experience of those the dissent ventures to speak for,” he wrote. “Segregation effectively plundered Baltimore’s Black neighborhoods—transferring wealth, public resources, and investment to their white counterparts—and the consequences persist today. . . . So it is no coincidence that gun violence mostly occurs in the portions of the city that never recovered from state-sanctioned expropriation. Absent reinvestment, cycles of poverty and crime have proliferated.”
Rather than reinvesting in dispossessed communities, Gregory wrote, the city over-polices them: “Baltimore spends more on policing, per capita, than virtually any other comparable city in America,” and “in 2017, for example, a greater proportion of its general operating fund spending was allocated to policing than to education, transportation, and housing combined.”
Gregory’s opinion aligns with public health experts who have been calling for a more accurate and equitable conception of public safety, one that includes overall health and well-being and considers the damage that our systems of punishment inflict. Last month, anthropologist and physician Eric Reinhart argued in Health Affairs that “redefining public safety to account for the harms of policing and incarceration rather than continuing to cede this influential discourse to reductive criminological terms is key for ensuring health, security, equality, and positive freedom for all U.S. residents.”
As law professor John Pfaff wrote in The New Republic last week, “our criminal legal system produces tremendous harm and immiseration, even death, not just for [incarcerated people] but for their families and communities. In a damning indictment of our fundamental indifference to the lives of the millions who come in contact with this system, we have no idea what the criminal legal system’s actual humanitarian costs are, but they are surely staggering.”
Even with incomplete information, we know that police killings are a leading cause of death for young Black men, and that police violence sends tens of thousands of people to the emergency room every year. We also know, as Reinhart writes, that jails and prisons inflict “increased rates of chronic diseases that impose long-term medical needs and cost” and reduce life expectancy. Even pretrial detention without a conviction, “enforces persistent economic hardships and drives high rates of unemployment, homelessness, and food insecurity.”
Beyond that, a growing body of research—what Reinhart calls “carceral-community epidemiology”—shows that incarceration spreads disease and increases mortality rates in surrounding communities, that our world-leading proclivity for incarceration, while disproportionately harmful to nonwhite people and dispossessed communities, is killing us all. Given their often poor conditions and porous nature, with high turnover and the constant churn of staff and visitors, “jails and prisons are not like Vegas: What happens there does not stay there. Carceral institutions worldwide have long functioned as disease multipliers and epidemiological pumps for surrounding communities in relation to HIV, tuberculosis, hepatitis C, influenza, and other infectious diseases,” Reinhart wrote.
This reality has been of acute importance throughout the pandemic. In May, Reinhart co-authored a study concluding that “cycling individuals through Cook County Jail in March 2020 alone” accounted for 13 percent of all COVID-19 cases and 21 percent of racial COVID-19 disparities in Chicago as of early August. Their analysis also showed that “jail cycling is the strongest predictor of COVID-19 rates, considerably exceeding poverty, race, and population density.”
Other research shows that sending more people to county jails leads to higher rates of premature community death. In February, a retrospective, longitudinal study in The Lancet examined cause-specific mortality at the county level in the U.S. over a 30-year period. It found a “short-term association between county jail incarceration and mortality,” with “mortality due to infectious disease, chronic lower respiratory disease, substance use, and suicide” as the strongest drivers. The study put the problem explicitly in public health terms, noting the risks of community-level “exposure” to high incarceration rates, as though the county jail was polluted water or a toxic waste site.
One of the study’s authors, Sandhya Kajeepeta, a doctoral student in the Department of Epidemiology at Columbia University, told me that research framing “public safety more broadly to include public health and long-term well-being really challenges our reliance on jails and prisons to keep people safe.”
For Reinhart, the effort to “reclaim and redefine the influential rhetoric of public safety” must “make clear that collective safety is best improved not by policing and prisons but rather by building robust public systems of care––that is, of economic security, environmental protections, labor rights, and housing.”
That’s also the view of Leaders of a Beautiful Struggle, the grassroots advocacy organization that challenged the Baltimore surveillance program. Lawrence Grandpre, the group’s director of research, wrote that their opposition to more surveillance was neither anti-police, nor born of indifference to gun violence. Instead, he wrote, we “believe that safety is not simply the absence of violence, but the creation of conditions for human flourishing. Thus, we refuse the false . . . choice between community instability created by violent crime, with the community instability caused by mass incarceration, unaccountable policing, and the slow starving of our community institutions to feed a [half] billion-dollar police budget deemed to be the only ‘investment’ our community needs.”