A shortage of state capacity for criminal justice results in illegal responses to our problem of rising crime
Both globally and in India, police brutality is currently a topic of discussion. In India, it takes many forms, including custodial violence, arbitrary enforcement of rules, and, most notably, encounter killings. Usually glamourized in movies, these “encounters" are under scrutiny after the police shooting of Vikas Dubey, the 119th accused killed in a so-claimed police encounter in Uttar Pradesh since its Adityanath-led government took charge in 2017.
While it is a form of police excess, a culture of encounter killing is actually a consequence of a dearth of policing. Counterintuitively, a lack of state capacity to operate a functional criminal justice system has led to a new equilibrium of police encounters.
Thanks to Nobel Laureate Gary Becker, it is well established that criminals also weigh the expected costs and benefits of breaking a rule. The expected cost is the punishment/fine multiplied by the probability of getting caught. If either the punishment or the probability of facing punishment is too low, then expected costs might be relatively low, compared to the benefits of breaking the rule. Because of weak capacity of the police, courts and the prison system in India, the probability of facing punishment is very low, even though the punishment for crimes like murder, kidnapping and extortion is fairly high. This is one reason for the country’s increasing crime rate.
As total crime increases, the resources of the criminal justice system get further strained, and fewer criminals are caught. The total number of crimes can increase if too many activities are criminalized. This is especially true of India, where everything from unauthorized chain pulling and tree cutting to a cheque bouncing has a criminal penalty. But the total number of crimes also increases when criminals go unpunished in a weak criminal justice system, and they feel they can act with impunity. Diminished deterrence because of weak state capacity tends to generate more criminal activity, further reducing punishment per crime, and so on. Mark Kleiman called this phenomenon “enforcement swamping". In such an environment, criminals do not fear the law.
When confronted with weak state capacity and rising crime, state actors know that the probability of securing convictions is low, so their tendency is to increase the punishment in order to achieve the same level of deterrence while also appeasing citizens. Citizens, activists and legislators routinely demand the death penalty for rapists in India. The hope is that the severity of the punishment would make up for weak enforcement caused by capacity constraints.
But increasing the severity of punishments has not reduced crime in India. Punishments like the death penalty further clog the criminal justice system because of the high burden of proof. Only international terrorists, or the poor, seem to face capital punishment in the country. Higher penalties on law books usually only serve to increase the amount of bribes paid by violators to escape punishment.
The second response to enforcement swamping is that in the face of public outrage over crime, the police act as investigator, judge and executioner all wrapped in one—through extra-legal custodial killings. In any civilised society, there would be citizen pushback against such police excess. The police are unlikely to engage in encounter killings unless they have some popular support, or at the very least, no widespread opposition. The weaker the criminal justice system, the greater the demand for immediate justice from the public, especially for gruesome crimes. When the police caught four suspects who allegedly gang-raped a doctor in Hyderabad, they read the very angry public mood, and were largely praised for the custodial “encounter" killing of the suspects, instead of facing any backlash.
Ordinarily, legislators and the executive, i.e. the bosses of the policemen, are also unlikely to tolerate policemen going rogue unless they benefit in some way. This occurs when the general mood in society supports swift justice, as in the Hyderabad case. But police excesses will also be tolerated when these actions get rid of pesky civil or political opposition, or previous allies who may have switched loyalties.
This brings us to the encounter killing of Vikas Dubey, a case which seems to have all these aspects. A politically-connected person with at least 60 criminal charges, he was infamous for the killing of Santosh Shukla, a Bharatiya Janata Party minister, inside a police station, with a dozen odd policemen as witnesses who turned hostile in court, leading to his acquittal of the charge. A few days before his capture, he reportedly killed eight policemen during a raid to arrest him, and made an escape. He appears to have usually got away with these actions in the past, with his political links and a corruptible police. But being on the wrong side of the political fence, caste politics and police relationships appear to have made Dubey a perfect encounter candidate. It is unlikely that the public will mourn Dubey’s death—the perfect shield for a police force to engage in such excesses.
The only way out of this bad equilibrium that seems to legitimize police killings is, counter-intuitively, more policing. India needs a tenfold increase in police forces, judges and prisons, ideally coupled with a significant reduction in the violations that carry a criminal penalty. Only then may we see criminal justice with a semblance of the rule of law.
Shruti Rajagopalan is a senior research fellow with the Mercatus Center at George Mason University, US