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.