Any Excuse Will Do

Scott Hensen at Grits for Breakfast  picked up on a discussion at a prosecutor message board about what he calls “penny-ante” criminal cases, such as cyclists who fail to obey traffic laws or pedestrians walking on the wrong side of the street.

Scott conceded that cyclists could conceivably pose a safety threat, but

It’s one thing to ticket cyclists violating traffic laws, but ticketing people for walking on the wrong side of the road? That can only be a priority when police have WAAAAY too much time on their hands. It’s nigh unbelievable to me that any case of walking on the wrong side of the road ever makes it all the way to a jury! What an outrageous waste of time and taxpayer dollars! These examples show how a small town like Corsicana might end up locking people up for 3,000+ bed days last year for fine-only Class C offenses.

There are two thoughts about police and prosecutors bothering with these “pointless” offenses.  As noted in the comments, they are used as a pretextual excuse to stop and challenge people in the hope of finding real crimes and open warrants, allowing police to search those who are using bicycles to transport drugs or run background checks to see if someone is wanted.  The flip side is that these petty offenses make for a decent revenue raising opportunity.

Scott then asks a fascinating question:

Awhile back I read a law review article – I cannot now recall the title or author – which posed the question, if it were possible to construct a machine that would allow detection of every law violation and ensure 100% enforcement, should the machine be built?

There is a law or regulation covering essentially every aspect of human existence.  Over time, lawmakers with too little to do create the rules that keep us from bumping into one another by telling us to keep to the right.  They protect us from ourselves by telling us to wear seat belts and helmets, and eat less salt.  They appease grieving parents and outraged communities by crafting laws named after dead children that duplicate, triplicate, existing laws with minute additional requirements.  In isolation, some people applaud these laws as serving a good function.  Proponents are always well intentioned, but they become part of the vast mass of laws regulating us.

For every regulation, there must be a consequence for its violation.  When Harvey Silverglate wrote Three Felonies A Day , this could have been his inspiration, even though Scott’s referring to petty offenses.  The point remains that, as a society, we seek the elimination of crime and encourage and support the police in their efforts to enforce our laws.  We do not, however, think much about the scope of our laws that render each of us a criminal, to some greater or lesser extent.

If there was a machine that would detect every violation of law, we would all be found guilty of something.  Granted, most of us would be prosecuted for petty, stupid offenses, but they are offenses nonetheless.  If they are so petty and stupid, and if we wouldn’t want to be prosecuted ourselves for them, why do we support their existence, enforcement and prosecution for others?  Largely because we don’t think it will ever happen to us.  We don’t mind unfairness to others anywhere near as much as we hate it when it happens to us.

The machine would likely put us all in a cell, at least for a brief period of time.  There’s a serious question of who would arrest us, given that the cops would likely be in the cellblock with us, probably for something more serious than what we’re in there for.  But given that this is all theoretical, let’s not get caught up in the details.

The point was well summed by this commenter at Grits:

Allowing these type of stops for silly things to be used as pretexts for searches is one of the reasons Texas is now a police state. Why not just do away with the pretext. Just allow officers to stop, detain and question anyone they wish anytime they wish. Take away the pretext. Would there really be any practical difference?

If it was put up to a popular vote, my bet is that most people would support the authority of cops to stop at will.  That’s because they only expect them to stop the other guy, the criminal.  Not the good people like them.

18 comments on “Any Excuse Will Do

  1. mirriam

    I have this conversation with ‘regular’ folk all the time. You know, the kind that don’t do really bad things, they just a drink or two and drive, or smoke pot on occasion. I also have this conversation with relatives who should know better, who say sure, I am willing to give up X right in order to feel safer. It’s because they continue to walk between the raindrops. Whatever will they do when they get wet?

  2. SHG

    What will they do?  Hire a criminal defense lawyer and whine ceaselessly about how horrible this country has become, how unfair the law is, how unjust the system is.  It’s never real until it happens to them. 

  3. Stephen

    Walking between the raindrops is a great way of putting it.

    I know my perceptions of the police completely changed the moment any of them did something dodgy to me personally. I completely agree it’s the same for everyone else.

  4. David

    On the other hand, perhaps such a machine would lead to the repeal of some of the pettifogging regulations, by making people realise how ridiculous they are.

  5. mirriam

    Well, 9/11 altered my world view forever. Try being an Afghan-muslim prosecutor in a little county in upstate New York. Your brain gets turned around right quick. Turns out I’m better at this side anyway.

    But for the grace of God go I. I say it a lot, and I mean it every time.

  6. SHG

    It’s funny, I had a chat with a friend who was Hispanic and a prosecutor, and was going down to Arizona for a meeting.  I suggested he make sure to bring his shield with him, since he might find that the local gendarmes might not be overly friendly otherwise.  It appeared to touch a sore spot with him, as he secretly harbored thoughts that he might not really be welcome as a prosecutor.  He went on to become a high elected official.

    I never knew you started as a prosecutor. That explains a lot.

  7. Jim Keech

    Scot wrote: “If it was put up to a popular vote, my bet is that most people would support the authority of cops to stop at will. That’s because they only expect them to stop the other guy, the criminal. Not the good people like them.”

    Yes, I’m continually amazed at people’s ability to convince themselves that they can pee in just the other guy’s half of the swimming pool. But then, I get told that I’m “over the top” a lot when I try to point out the inherent idiocy of that belief.

  8. JKB

    You don’t need 100% detection and enforcement, just removal of selective enforcement to cause a stir. I remember a few years ago Montgomery County, MD had a crisis over police being caught on traffic cams. The photos were to be reviewed and in the absence of being on a call, the officers were suppose to pay the fine. Mutiny ensued with sergeants refusing to hold fellow union members accountable. So lieutenants had to do the work. Threats of union action. I never did hear how it was resolved. The problem was the officers were offended to be held to the standard of a common citizen.

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