The Black Lives Matter protests have focused attention on two distinct but related issues: institutionalized racism and excessive police violence. Although only time will tell whether the initial commitments are durable and sincere, there is reason to hope that Americans have, at long last, begun to acknowledge the depth and severity of routinized racial bias and structural inequality in fields as disparate as academia, corporate America, publishing, entertainment, sports, and high tech. The reconstruction of criminal justice must be similarly comprehensive, addressing both racial injustice and more general excesses and abuses. The initial focus on racial bias in policing is appropriate, but there is a risk that it will suggest that reform can be limited to a purge of racist police officers and conspicuously horrific practices, perhaps with some implicit bias training thrown in for good measure. In fact, almost all Americans share some responsibility for our excessively punitive public culture and the decades-long expansion of criminalization that has made unjustified police killings more frequent. Some of that punitive culture can be attributed to widespread racial bias, but much of it cannot. Consequently, effective change will require that almost all Americans accept less aggressive and less punitive responses to what they consider to be serious transgressions.

Excessively violent law enforcement is not racially exclusive, and although it weighs most heavily on aggressively policed and segregated African-American communities, it is not simply a matter of white aggression and black victimization. Indeed, in inner-city communities plagued by high crime rates, African-American civic leaders have been among the most forceful advocates for assertive, zero-tolerance policing and unforgiving criminal sentencing, as James Forman Jr. documents in his revealing book Locking Up Our Own. Similarly, it should not be a surprise that in today’s more racially inclusive police forces, some of the officers involved in unjustified killing of black people are themselves black.

Americans equate criminalization with moral disapproval: Politicians demonstrate righteous outrage by proposing new or harsher criminal laws, prosecutors channel public anger by “throwing the book” at defendants, and the public demands criminal sanctions for every injury and moral offense. Because we treat legal infractions as moral transgressions, we accept the truly horrific consequences of our approach to law enforcement as the immoral criminal’s just deserts. The war on drugs is only the most infamous example of such counterproductive criminalization. Much of routine law enforcement involves minor “quality of life” offenses such as off-license sale of liquor and tobacco, small-time gambling, and traffic infractions. And it is not only stereotypical “law and order” conservatives and advocates of “broken windows policing who bear responsibility for aggressive law enforcement and unforgiving criminal sentencing; progressives who pride themselves on their tolerance easily pivot from forgiving to vindictive when confronting behavior they abhor.

For example, bourgeois moralists have allied with some feminists to retain and strengthen laws prohibiting sex work, despite evidence that criminalization makes exploited sex workers more vulnerable to organized crime. Anti-racists have successfully lobbied for enhanced sentencing for hate crimes (ironically, these laws may disproportionately disadvantage defendants of color). Advocates for battered women have successfully pressed for mandatory arrest and prosecution for domestic violence even when the victims ask for police to desist or for charges to be dropped. Cyclists and pedestrian advocacy groups have demanded a crack-down on traffic infractions and press for criminal prosecution in cases of accidents resulting in injury or fatality, as if every mishap on crowded and chaotic urban roadways involved culpability and required a punitive response.

Of course, there are truly dangerous people who must be confronted with force and prevented from preying on the vulnerable. Despite calls to “Defund the Police” very few Americans of any race want to abolish law enforcement. Not only do violent criminals victimize African-Americans at a far greater rate than police, but the vigilantism that would certainly replace state-administered criminal justice would be far worse in terms of racial bias: Replacing Derek Chauvin with George Zimmerman would not be an improvement. Indeed, each demand for the expansion of policing into a new domain of social life, for more aggressive law enforcement and more severe punishment, is an understandable reaction to a real problem. But each also contributes to the expansion of policing, which, in the United States, entails a significant risk of unjustified violence.

African-Americans are over twice as likely to be killed by police than are whites and, just as horrifying, this disparity is much more consequential than it might be elsewhere because American police kill much more often than police in most other countries. The latter is not primarily a consequence of subjective racial bias but a reaction to the objective risks of serving as a police officer in the United States: According to criminologist Frank Zimring, American police are 40 times more likely to be killed in the line of duty than their counterparts in Germany and 25 times more likely than police in the United Kingdom, owing to the widespread availability of firearms in the United States. Predictably, American police respond to this risk with a preventative offensive posture, an attitude that all-too-often carries over to non-threatening encounters.

Over-criminalization also adds to the docket of an overwhelmed judicial system, unable to provide even cursory factual adjudication for the vast number of Americans accused of crimes. Two consequences have followed. One, defendants languish in jail for months or even years awaiting trials that are, as a matter of constitutional right, guaranteed to be “speedy,” or pay exorbitant fees to bail bonds brokers to purchase their liberty. Two, we have effectively abandoned due process in favor of a thinly veiled system of forced confessions known as “plea bargains.” The most reliable estimate is that over 90 percent of the unfortunate occupants of America’s prisons were convicted on the basis of a plea, often entered into under the threat of retaliatory over-charging should the defendant insist on his or her constitutional right to a trial. As a result, the United States, home to roughly 5 percent of the world’s population but 25 percent of the world’s prisoners, has the highest incarceration rate in the world.

Those prisons have long ago abandoned any serious attempt to rehabilitate inmates: Their function is at best, social quarantine; at worst, vindictive retribution. Consider the popular television program Beyond Scared Straight, which featured prison inmates taunting young juvenile offenders to deter them from future criminal activity, almost always with the threat of rape. The widespread popularity of this program demonstrates that sexual abuse has become an accepted part of criminal deterrence in the American carceral system. It is also well documented that American prison guards pit groups of inmates against each other in “gladiator” brawls, betting on the outcome. These are only two of the most conspicuous of the cruel and inhumane conditions in our prisons and jails.

Nor does the vindictiveness of criminal punishment end after an inmate is released from prison. Although a bedrock principle of justice is that a criminal can return to a dignified civic life after “paying his or her debt” to society, this is not so in the United States, where convicted felons are often denied the right to vote, discriminated against in employment and housing, and subject to ongoing and humiliating surveillance as a condition of “early” release from sentences that are excessive by design.

While the excesses of American policing and criminal justice are magnified by racism, they are also independent of it. They are our legacy as Americans, bequeathed to us by those who burned troublesome women at the stake, branded adulterers with hot irons and, for over a decade, criminalized the simple pleasure of a stiff drink. Who hasn’t taken comfort in the heroic narrative of criminal justice, that the suffering justly imposed on a moral trespasser will bring moral closure—vindication to victims and a sense of wholeness to a righteous society? But nothing is resolved when the accused is bullied into a confession, there is no vindication when the forces of law and order adopt the tactics of marauders, and there is no moral high ground available when punishment is as vicious as crime.