Worthy of Execution

Rarely have I said this, but I’m going to now: Yale law professor Stephen Carter’s opening sentence is profound:

On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce.

Unsurprisingly, his 1Ls aren’t ready for a statement that deep, that real.

Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.

The point isn’t that they will, or do, or even do so often that it’s a pervasive problem.  It seems that way sometimes, but it’s not. Given the number of police interactions daily, the number of people killed by police is a relatively small number. But for the person killed, the family and friends of the person killed, the number one is all that matters.

What makes this profound is that, in a nation with so many acts proscribed by criminal sanctions, each of which brings with it the myriad enforcement techniques employed by law enforcement to obtain compliance and, per the First Rule of Policing, protection of the officer from threat, real or imagined, the opportunities for death, the killing of a human being by the volitional act of a law enforcement officer, are innumerable.

Every law, from those proscribing the most dangerous, morally culpable conduct, to those prohibiting the use of a truck with the wrong sort of bond to remove cargo from a restricted port, carries the potential for death.  That’s what gives rise to Carter’s point: are we ready to kill to enforce that law.  Is that law so important to society that it’s worth the death of a human being?

Lest we see this as some other guy’s problem, meaning that we can tolerate a death provided it’s not ours or someone we love, none of us is so pure as to be above the potential of being the next target.  Harvey Silverglate’s Three Felonies a Day makes this point. Carter points to Douglas Husak’s book, “Overcriminalization: The Limits of the Criminal Law,” as well. If this wasn’t enough, every hour  or so, another overheated advocate screams for new crimes to be created to end whatever heart-rending plague bothers her most.

Not only do these demonstrate that none of us is Caesar’s wife, but even with the extraordinary scope of possibilities for “good, law-abiding citizens” to be turned into criminal defendants at any moment, we are still at risk.

The fact that we’ve done nothing wrong doesn’t preclude an interaction with law enforcement, whether mistaken, misguided or just because we happen to be in the wrong place at the wrong time.  Even if the cops are shooting at the bad dude, and we’re merely walking by, wholly unrelated and unaware, and the bullet misses its mark as they so often do, and strikes us down, we are just as dead as if we were its intended target.

We give police guns for a reason.  It’s so that they can protect themselves and us (theoretically) from harm from people who would engage in acts of violence.  Some crimes are for conduct that we all agree must be prohibited, and are performed by violent people who will not cease because a law is enacted or we command them to stop. Some will persist in their violent ways, and police must be equipped to stop them.

But those same guns that we imagine will protect us from a violent encounter with a criminal work the same when police interact with a person whose putative crime is selling untaxed cigarettes, one at a time.  Eric Garner’s death was the impetus for Carter’s post, more particularly the claim — which, as I’ve explained before, may be part of the myth of the case but I do not accept — of what Garner did so wrong that it resulted in his death:

But, at least among libertarians, so has the law that was being enforced. Wrote Nick Gillespie in the Daily Beast, “Clearly something has gone horribly wrong when a man lies dead after being confronted for selling cigarettes to willing buyers.” Republican Senator Rand Paul of Kentucky, appearing on MSNBC, also blamed the statute: “Some politician put a tax of $5.85 on a pack of cigarettes, so they’ve driven cigarettes underground by making them so expensive.”

This is both true and wildly inaccurate.  Pretending the claim to be true, Garner was, by extension, killed for selling “loosies,” but he was really killed for not being compliant. Whether it was cigarettes or drugs or murder, Garner would be just as dead. The only difference would be our acceptance of the worthiness of the use of force, the need for police to forcibly take him down, there and then.

To a cop, there really isn’t any question that the officers were justified in taking Garner down.

All I’m saying is that cop needed to arrest him. Once that was decided on, they had to take him in one way or the other, and he didn’t want to go … but maybe there was excessive force used. I won’t say there wasn’t.

While outsiders, us, may question the need for arrest, the need for force, the need for so much force, the cop’s eyes see if differently. Assuming “loosies,”* the cop “needed to arrest him,” and what followed is nothing more than what follows any time a cop “needed to arrest” someone, whether for selling an untaxed cigarette, murdering a dozen nuns or, well, doing absolutely nothing.

And sometimes, the gun (both real and a metaphor for any use of violent force) we give the cop to protect him and us from a violent criminal just goes off, and the person it strikes is just as dead as anyone else.  Every law we enact, every crime we create, every sanction we mindlessly impose to get people to comply with regulations, whether important or trivial, or even protectionist for some law-maker’s campaign contributors, sets in motion a string of potential events that could result in the killing of a human being.

Is it worth it? Is it worth it if the person killed is someone you love instead of some guy you never met?  Is the need for that law, that regulation, that sanction, so overwhelmingly important that you are willing to kill to enforce it?  The cop may pull the trigger or choke the life out of the person, but it’s us, all of us, who condone the killing in our name.  The cops just do our dirty work for us, but we are responsible for their killing to enforce our will.

* “The thing that nobody hears about in the media is that Garner had been arrested for this before. The store owners, they had been … saying he was taking away their business. These people pay their taxes; they pay for tobacco licenses. They wanted him gone.”

22 thoughts on “Worthy of Execution

    1. William Doriss

      Dead wrong. Probably his worst, for the Simple Reason that anyone who is a regular reader here, and is himself semi-literate, could have written this essay in his sleep. Preaching to the Choir is indeed a truism. For godsake, I wrote similar sentiments myself on another blawg site five years ago, and nobody said Boo. Under my real name too, not AnonyMouse.

      All the best, 2 x one = 2,

      1. SHG Post author

        Whether it’s my best or worst isn’t for me to decide, but you are absolutely right, anybody could have written this. And they should have.

        1. William Doriss

          Actually, my comment was a snarky response to Wrongway above. If he had used some other handle, it never would have popped into my head to write what was submitted. I note in passing that you took down the remainder of my comment, which was appropriate because it was ad hominem and not relevant. Thanx.
          You’ve written so many excellent posts that we’ve lost count. If you write an ordinary one now and then, we forgive you. Yes, anyone could have written this essay, but few have. So it needed to be done. We are going to have a good day today. The storm is leaving us.
          9 – three = 6.

  1. Wrongway

    its just that this sentiment is being expressed in a few places around the web.. & in some prominent pretty publications.. but the uhh.. conundrum is pretty well stated in this essay..

  2. John Barleycorn

    One would like to imagine that these alchemy forays of yours here at SJ into the frosty depths of the “urban forest” consistently contribute, at the the very least, a sack lunch and a thermos full of hot buttered rum to the millions of fungal spoors circulating about. Especially, considering it is still not feasible to mass produce jet propulsion packs for fungal spoors.

    Who knows, perhaps one day, in the not too distant future, societal bearings will once again only be taken while sitting atop toadstools while listening to a, yet to be written, song that connects the dots between Rage Against the Machines’ “Fuck you, I won’t do what you tell me” and Peter Paul & Mary’s “Puff the Magic Dragon”.

  3. Andrew

    Other countries don’t put a gun in the hands of every police officer, and consequently have substantilly fewer people killed by police. When you write “We give police guns for a reason,” are you suggesting the cops should or must be given guns, and these other countries are doing it wrong?

    1. SHG Post author

      Not at all. The “we give cops guns for a reason” reflects the explanation, not my support or agreement with the explanation. It’s descriptive, not normative. Indeed, I think we’re doing it very wrong here.

  4. Ed

    It’s good to see you taking responsibility for belonging to the “we” & “us” group that lack moral principles.

    1. SHG Post author

      While you quip, do you ever consider your arrogance in thinking that you are special and above the fray? Few ever do.

        1. SHG Post author

          That’s an interesting comment, Ed. I’m an open book, as transparent as they come. You, on the other hand, comment from behind a rock, with only the name “Ed” so you take no responsibility and suffer no consequences. You offer no background, so your comments are not just cowardly, but meaningless.

          You know yourself? I know you too. You are just another disembodied worthless guy with a keyboard. The internet is full of Eds, weasels hiding behind rocks tossing out the occasional snark or insult as if anyone gives a damn what a weasel has to say. Do you know that you don’t exist, that you are nothing?

          Do you know this about yourself? You could make yourself real anytime you want, but then, that would require you to come out from behind the rock where the weasels hide. Maybe then you would matter. Until then, you don’t.

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