How do we get sustainable, systematic change?

Lord knows we need it, but charging a few police officers for actions (or inactions) in one particular instance doesn’t seem sufficient.

The problem isn’t how these officers are being treated after the fact. The problem is that George Floyd was killed, and that before George Floyd was killed, it was Breonna Taylor. Before her, it was Stephon Clark. Before him, it was Philando Castile. Alton Sterling. Walter Scott. Tamir Rice. Michael Brown. Eric Garner.

The problem is that after George Floyd was killed, it will be someone else. Does anyone not believe this? The list above includes people pulled over for a defective light. It includes a 12-year-old boy. A 26-year-old EMT. Who will be next? A grandmother? A journalist? Hell, maybe even an undercover cop? No one is immune.

So how do we get real change for the future, and not just reactions at the past?

I’m a big believer in the power of incentives to shape behavior, and the power of well crafted markets to bring about net gains. And I think I finally have an idea worth sharing.

Remove qualified immunity. Require malpractice insurance for police officers. And require that the cost of that insurance be split between the individual cop, and a designated pool in the police force budget such that any money remaining in that pool at the end of the year, and only money left in that pool at the end of the year, goes to fund bonuses for the police.

On qualified immunity and malpractice insurance, we require this of doctors because when we choose to enter their care, we give them the power to do wrong by us, to hurt us, and even to kill us in the case of bad judgement or actions. Thus the market solution of malpractice insurance. With the police, the situation is even more urgent, both because we have no choice in whether or not we are subject to their whims, and because whereas a doctor’s tools and profession are designed to heal except when misused, a police officer’s tools are designed to hurt even when correctly applied. Thus the danger is significantly greater.

But many others have written about that part of the idea, so I’ll leave it there.

The second part, though, is how we might force a better alignment of incentives across all involved individuals, and it is something that I have not seen discussed elsewhere.

In any of these cases, there are fundamentally three distinct parties within the police force in question: the directly acting officer(s), the group of “other” officers who are employed by the force but not directly involved with the incident, and the organization of the police force itself. By ensuring that costs of malpractice insurance are shared between the individual officers and the organization, and ensuring that bonuses to the other officers are negatively impacted by increased insurance premiums, we can align the incentives of all of these groups towards the goal of fixing things for the future.

For the directly acting officer(s), you create a system of continual, meaningful, and impactful feedback: as they act out inappropriately, complaints filed against them and judged to be valid will increase the insurance premiums they have to pay; or vice-versa, lengthy periods of good behavior (and perhaps other things? undergoing supplementary de-escalation training? etc?) will decrease their premiums, providing them a direct and gradual incentive to shift their behavior beginning with even low-stakes situations that merely result in complaints filed, and with any luck avoiding another George Floyd.

For the other officers within the police force, having their bonuses impacted by the bad behavior (and thus, higher insurance premiums) of other officers gives them an incentive to encourage better behavior, to “police” the actions of their fellows, and even to pay more careful attention to which candidates are hired to become officers in the first place (after all, if the department hiring a “bad apple” means you won’t get your bonus, then that’s quite an incentive to protest any such hiring!).

Finally, for the police force organization itself, since its members pay is tied to the cost of the premiums, the organization will face significant pressure from the officers to implement policies and take actions to improve police behavior (and thereby lower premiums and increase bonuses) across the board. I expect that this would range from raising the bar for hiring to adjusting training priorities, and even to improving the level of compliance about actively using body & car cameras.

Update: An Objection

In discussion, it’s been pointed out to me that this also increases the incentives for police to hide miscarriages of justice once such miscarriages have already occurred.

I think this can be helped by a few possible approaches, though I’m unsure which might be best.

1. I suspect that a common method of hiding bad behavior is by deleting body-/dash-cam footage, or by merely not having those recording devices active during the incident. In such cases, you could institute an automatic presumption of guilt (of bad behavior by the police) when dealing with complaints where the body- or dash-cam footage is missing.

2. You could just significantly increase premiums and/or penalties in cases where later evidence (like the videos from protesters in recent events) comes to light that proves a coverup.

3. You could also institute whistleblower style protections and rewards. Unlike the two options above which are negative incentives against bad behavior, this one is a positive incentive towards good behavior.

Ultimately, it might take a combination of these—and perhaps others!—to tie up any remaining loose ends.