The Case Against Pettiness

Following on the issue raised by the death spiral of Robert Earl Lawrence,  itself an offshoot in a way of Yale lawprof Stephen Carter’s critical admonition that we should make “no law you aren’t willing to enforce by death,” Paul Gowder at PrawfsBlawg offers an excellent (and far more comprehensible) perspective on trivial law and its impact on society.

To be clear, the concern is with laws that penalize ordinary behavior—behavior that many or most people do at least sometimes, either because that behavior is consistent with social norms (smoking a joint, not coming to a complete stop before turning right on red), or because it is easy to accidentally do the behavior (violate a complicated parking sign). And the worry is that such laws, when pervasively enforced, break the connection between genuine wrongdoing (in the sense of the violation of social norms, also in the sense of doing anything actually morally wrong) and negative interactions with the legal system.

When the law routinely penalizes ordinary folks for doing things that ordinary folks in the community do, or hammers people with large fines for understandable day-to-day screwups, legal punishment stops looking like a consequence of doing bad things to others, and the law stops looking like an expression of our collective sense of how we ought to treat one another.

Instead, it starts to look like a form of taxation, or a negative lottery, in the sense that the “lawbreaker” is one who just happened to have the bad luck to be in front of an official when acting like a normal person, and now has to pay the price. (Ed. Note: broken into paragraphs for readability)

As was argued in the post about Lawrence’s death, there was reason for a rule that started the downward spiral of conduct that ultimately resulted in his death, and there were certainly numerous places where a slight shift in conduct might have avoided the end result, but when it comes to deciding how a government enforces its regulatory and police powers, we need to remember the cautionary words, hope for the best but prepare for the worst.

Gowder’s post addresses the myriad “penny-ante” rules that many have come to believe are critical to the preservation of civilization.  There are two pieces to the puzzle, the first being that bodies create such rules and the second being that people on the ground enforce such rules.

The former presumes that society can’t function unless there is a law/rule/regulation dictating our every action. The latter can serve as a safety valve for the overreach of the former, by demanding absolute adherence with every rule or exercising discretion as to when to apply rules and when to let things slide.

While Gowder’s post was quite interesting in itself, what elevated it to “must read” status was the introduction of a pseudonymous commenter, Lucy. Plucked from the middle of Lucy’s many comments, addressing the absence of a clear dividing line between “penny-ante crime” and serious crime, “she” says:

When you say it’s fuzzy in the middle you destroy your theory. I can’t arrest a man for breaking the window. Can I arrest when he sticks his arm in the broken window and steals Skittles, what if he steals $5,000? What if the broken window causes the shopkeeper to be cut by glass, what if he dies from the cut? But your honor his crime was a penny ante crime. Case dismissed?

Note the use of the first-person, “I can’t arrest…”  Care to venture a guess what “Lucy” does for a living? That a cop shill has attacked in the comments to PrawfsBlawg is a paradigm shift in discussion; they are leaving no stone unturned in their public relations blitz to rehabilitate public impression of police.

Gowder, as an academic, is far kinder to Lucy than I would be, since I “quash dissent.” Yet, even his gentler handling of the shill ends in attack:

I think academics and legislators have left the constitution behind when they gripe at police instead of legislators.

In every county in this country there is a sheriff who can identify the person/people who need killin. What I think is that the professors ire should be directed at legislators no [sic] police.

The 99% of police do a good job. I deal with this daily. I’m sorry that I disagree with the prof. Yet more worthless legal scholarship. I hope you get tenure and your students don’t listen.

While it’s not unusual for SJ to be invaded by shills, and it happens quite regularly, that can’t be said for academic blogs. Lucy changed all that.  And to put the icing on the cake, even Judge Richard Kopf, who did nothing more than mention my posts about the NYPD, caught a cop shill, trying to conflate the issue of police being allowed to disagree with the views of elected officials with their conduct holding a city hostage to acquiescence with their “love us or leave us” demand.

Never before have I seen such a full court press designed to disrupt any thoughtful discussion about and derail anything that hints of holding police accountable for their actions.  This is a remarkable shift in how police are working overtime to respond to every challenge to their authority.  If only they were as diligent about not needlessly killing unarmed black men or abusing their authority over penny ante crap.  But that’s not nearly as much fun as posting comments at blogs to argue that it’s not their fault that they kill people over the most petty of rules.

 

 

16 thoughts on “The Case Against Pettiness

  1. John Barleycorn

    Can you get to that!

    –Never before have I seen such a full court press designed to disrupt any thoughtful discussion about and derail anything that hints of holding police accountable for their actions.

    This is a remarkably shift in how police are working overtime to respond to every challenge to their authority.–
    (On my knees! Robin Hood, please give me directions to the goat roast)

    –If only they were as diligent about not needlessly killing unarmed black men or abusing their authority over penny ante crap. But that’s not nearly as much fun as posting comments at blogs to argue that it’s not their fault that they kill people over the most petty of rules.–

    Rules or law?

    I once had a life, or rather, life had me

    I was one among many or at least I seemed to be

    Well, I read an old quotation in a book just yesterday
    Said “Gonna reap just what you sow

    The debts you make you have to pay.”

    Can you get to that?

    Have a twisted love don’t song.

    Q-esteemed. One!

    Pacing sucks!!! Trim the fingernails, just such, work on the delivery.

    Heat, the night. Bunk it down. Flames are.

    https://m.youtube.com/watch?v=8PW6e9Il4-g

    1. SHG Post author

      For the purpose of relative outcomes, rules, regulations, laws are sufficiently similar and related to fall under the same rubric. When you get beaten or shot for disobeying, you don’t really care which it is.

      1. Not Jim Ardis

        And when you barely live paycheck to paycheck, a simple fine of $500 feels a lot like a beating, and might as well be for many thousands of dollars for all your ability to pay.

        1. JLS

          “And when you barely live paycheck to paycheck, a simple fine of $500 feels a lot like a beating, and might as well be for many thousands of dollars for all your ability to pay.”

          They have a word for that when it occurs in anyplace other than America–oppression.

  2. JLS

    “The former presumes that society can’t function unless there is a law/rule/regulation dictating our every action.”

    That is the root of the problem and the NYPD temper tantrum last week where they punished the city by, in their own words, “only arresting people if it’s absolutely necessary” was the first time I can ever remember when it was demonstrated that people don’t strictly speaking, need them and their petty rules which govern every aspect of our lives. It undercuts the whole “they’re protecting us” thing.

    I always enjoy cops invading forums and seeing the lawyers hand them their asses and go running off in a rage because they weren’t given the comeplete deference they’ve come to expect. The fact that they are starting to recognize that they have a public relations problem can’t be a bad thing.

    I also noticed the TV news has gone into full damage control to report on everything they can to make cops look good since the Ferguson and Garner protests. I personally think we’ve broken through to a public awareness of police atrocities that has never existed before.

    We still have a long way to go though before it stops being taboo to criticize the selfless heroes in blue.

    1. SHG Post author

      What makes this particularly problematic is that both conservatives and liberals adore rules, even though different rules and for different reasons, making it quite difficult to raise the more fundamental issue of whether it’s necessary to micromanage society via a million rules, each of which is enforced (ultimately) at the end of a gun.

    2. Ed

      ” …in their own words, “only arresting people if it’s absolutely necessary”. IT’S ABOUT FREAKING TIME! This should have been SOP all along. It’s just too bad people had to get killed to bring it about, and I can only wonder how long it will last, barring more of the same, especially given that a great deal of “law enforcement” is a euphemism for revenue enhancement… and the beat goes on…

  3. Beth Clarkson

    I have to agree with “Lucy” when she says that ire should be directed at the legislature, not the police. Although cases like Mr. Lawrence (and Eric Garner too) leave me wondering how often the create such situations when they then demand compliance and get it without more than mumbling complaint and I do think there is a culture in policing in the U.S. that desperately needs to change, ultimately it is our law-makers who have the task of creating the laws and culture of law-enforcement that prevails in our country.

    Unfortunately, I do not see our current legislatures, both national and state, as making any effective changes for the better.

    Thanks once again for the addition to my legal knowledge.

  4. Mark Draughn

    “I think academics and legislators have left the constitution behind when they gripe at police instead of legislators.”

    Man, though, Lucy’s got a point of sorts there. It’s the leg that writes the laws and funds the police and gives them their power and refuses to set up effective controls on their behavior. It’s the leg that could change the use-of-force rules, police training, and how police shootings are investigated. If they really wanted to. We ought to gripe at both the police and the legislators.

    1. SHG Post author

      This is why police trolls do what they do. There’s always someone who gets sucked in and misses the nuance. That the lege is also to blame is obvious, but the shift is that the lege and academics are to blame, while cops are not. That’s where you fell into the hole.

      1. Patrick Maupin

        It’s an easy hole to fall into. The Nuremberg defense always works. Until one day, all of a sudden, it doesn’t, and people are surprised.

  5. Pingback: The Case Against Pettiness | Western Rifle Shooters Association

  6. Pingback: Good article about "laws" and cops

  7. Senator_Blutarsky

    When “society” has degenerated to such a point that a man ends up dead over selling solo cigarettes , all the verbage, all the “justifications” and subsequent “rationalizations” create an uncontrollable blowback.

    Humanity is a fickle creature. Unjust laws enforced unjustly create blowback.

    1. SHG Post author

      Yes, it’s because of your name. Nothing else. I’m just a sucker for Animal House, but just this once.

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