If there is one thing often emphasized by economist it is this simple principle: Incentives matter. This two-word mantra guides policy for better or for worse and not just in financial matters but in legal matters as well. Criminal law dampens the incentive for particular behaviors, tort law does so for negligent potentially dangerous behavior, so on and so forth. Alas, we frequently fail to consider all the incentives created by the law; particularly those incentives placed on police and others tasked with law enforcement. This is not to suggest corruption, though that is certainly real and problematic, but simply, the humanness of it all. When an officer makes a mistake we remember that all are prone to the follies of humanity, however this is ignored when the incentives are initially implemented. Thus we must always consider: What incentives does this law or policy create for the those that use force?
POLICE ACT ON THE LAWS WE CREATE
Nothing we enact in law is merely a moral stance or cultural affirmation, but an invitation for force to be used against those who infringe on the law. Throughout history we have policed law-breaking differently, however in more recent times governments of all sorts (cities, counties, states, and even the federal government) have established police forces to enforce their respective laws. Tasking law enforcement to actually enforce law requires a reasonable amount of force. Implied therein is the power to detain, search, arrest and use other reasonable means to achieve the prescribed legal demands. Ignoring that force is implicated in law enforcement carries unfortunate consequences when the crime is minor but the consequences of enforcement may be large. As Professor Stephen L. Carter pointed out “making an offense criminal also means that the police will go armed to enforce it.”
It stands to reason that when we criminalize selling loose cigarettes, bans on bagging lobsters, wandering into federally protected lands, taking a sick day, treating an illness, flying an unregistered drone weighing more than .55 lbs., selling mislabeled whip cream, playing croquet without a permit, allowing your children to play unsupervised and, one of the more prominent examples, using harmful drugs- that the opportunities to employ force increase and unavoidably invite their logical consequences.
Eric Garner, who died tragically while under suspicion of selling loose cigarettes, serves as a prime example. Professor Carter wrote about his death saying, “It’s unlikely that the New York Legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.”
Similarly, a Kansas couple underwent a harrowing experience as they were held at gunpoint for two and half hours while the local sheriff searched their house. Suspicions arose about their cultivation habits based on a visit to a hydroponics store and a false positive from tea in their garbage. The threat to innocent people, placing them in harm’s way and turning law-abiding citizens into potential suspects is a direct impact from overcriminalization. Overcriminalization is the result of the systemic creep of criminal, and even other bodies of law, as a tool against all moral harm and social ills.
More so than obesity, we stand at epidemical risk of becoming potential criminals at every turn. The list of potential infractions aforementioned is an accurate reflection of real laws. Many of which remove an important aspect of criminal law, that of the mens rea – the state of mind or intent element of a crime. Without that crucial state of mind requirement criminal law begins to reflect chance more than justice as it punishes genuinely innocent behavior, or is used to increase the severity of minor infractions.
Consider the following example adopted from a real life scenario: A car full of 18 year old boys is driving along a portion of a highway that runs through their town, one of the passengers is carrying less than an once of a banned recreational drug such as marijuana. In most places this would constitute a Class B Misdemeanor. A police officer spots the car and notices a missing tail light and pulls the car over. He quickly notices an unusual smell and searches the boys to reveal the marijuana in their possession. In this instance the officer pulled them over directly in front of an elementary school. This was entirely a matter of chance, the boys had not intentions of visiting the elementary school but were instead merely passing by. However the state has designated Drug Free Zones, which include schools and other places of public import. By statute the offense is bumped up to a Class A Misdemeanor for possessing banned controlled substances and paraphernalia in a Drug Free Zone, worthy of extended jail time versus a typical fine or small sentence. Does this speak to the mental state of the boys? No. It is a matter of chance. Or even cynically the officer knows that if he polices near Drug Free zones the chance that a more severe punishment will result increases.
This does not sit well in the American concept of justice, but is instead arbitrary and takes no consideration of the actual intent of the wrong-doers. It also fails to deter others from bringing controlled substances into Drug Free Zones as it was purely random and without intent. The benefit is minimal while the costs of the over-broad and intentless statutes are born by a minority of citizens.
Furthermore, when considering overcriminalization, ignorance of the law has long failed as an excuse for failure to comply, whether or not mens rea is a legal element of the crime. Such an assumption has long been upheld as justification for prosecuting the ignorant, and in principle rightly so. However, as the number of laws increase such a premise crosses into moral ambiguity. As explained by George Will (paraphrasing Michael Cottone’s law review article):
The presumption of knowledge of the law is, Cottone argues, useful as an incentive for citizens to become informed of their legal duties. Complete elimination of the presumption would be a perverse incentive to remain in an ignorance that might immunize a person from culpability. But “there can be no moral obligation to do something impossible, such as know every criminal law,” let alone all the even more numerous — perhaps tens of thousands — regulations with criminal sanctions. The morality of law, Cottone argues, requires laws to be, among other things, publicized, understandable and not subject to constant changes. Otherwise everyone would have to be a talented lawyer, “a result hardly feasible or even desirable.”
Alas, the strength of the moral case for criminal law crumbles with the ever increasing burden on citizens to know the impossible while constantly at risk of arrest, violence, or even death for non-compliance. Perhaps a more moderated approach when we raise our voices in protest or in support of political candidates, particularly in local elections, in regards to what we criminalize will go a long way. At this point we should actively pursue candidates and officials willing to undo these perverse incentives.
POLICE ACT ACCORDING TO ADMINISTRATIVE AND TRAINING PRINCIPLES
Requiring equal and appropriate administration of the laws is as important as determining what laws we want enforced. Administration of the laws requires that police and their respective executive managing offices determine what the law means and translate that into discernible actionable policies. However these policies do not always match the underlying legal authority and are often enforced unevenly or subjectively. At times these laws are enforced dangerously as the government adopts drastic measures to curb unwanted behavior such as the chemist wars of prohibition or spraying marijuana fields with Paraquat then suggesting that if some were poisoned as a result that such was a risk worth taking. Other law enforcement “tools” like civil asset forfeiture create a perverse incentive to err on the side of search, force, and seizure, confiscating assets from innocents without a charge laid against them.
Police are charged with the task of translating legal principles into action, making calls that are easily questioned. However, policy changes can still be made to better instruct officers on a proper application of the law. One such example is that of child protection and free range parenting. In multiple states officers picked up and even removed children from parental custody based off of incomplete and inaccurate information. Generally the law allows removal of a minor if there is neglect, abuse, or abandonment or if the child is in imminent harm as a result of either. Yet, child protection services in many places ignore those standards and overreach, generally out of real concern, but outside of their legal authority. Even when they do not remove the child from the home there is a pattern of authoritarian bullying and threats claiming legal authority to remove children from the home temporarily. Or, law enforcement creating lists of infractions, that are not actual infractions, so much as incidences when parents have made genuine mistakes or engaged in atypical but harmless parenting techniques. The results are feelings of distrust between law enforcement and competent parents. Appropriate application of the law into police procedure creates fewer incidences between law enforcement and citizens while it reduces the amount of innocent people swept up in unpleasant legal matters while suffering their emotional and economic impact.
Not only is the frequency of police involvement worrisome but so are the methods of police interaction, the qualitative aspect, if you will. Mike Rapport recently wrote on seeking a balanced middle ground for police action, allowing officers to do their job while protecting suspects and the general citizenry from the extensive and liberal application of force.
One key issue is how the police are trained. For example, the police are typically trained to shoot to kill if they perceive themselves to be at risk. It is not obvious this is the morally correct procedure, even though the police may like it. As this example illustrates, the problem is that a middle ground is not being pursued.
Nor is the problem limited to situations of deadly force. Consider the simpler issue of a South Carolina school girl who refused to put her phone away when ordered by a police officer to do so. The officer violently threw her to the ground in a way that seems quite shocking. But what should the police officer have done?
On the one hand, the officer’s behavior seems overly aggressive. But some of the alternatives proposed seem too timid (such as proposing that the teacher ask the class to leave if the disruptive student does not comply). If a police officer needs to get involved, are there not intermediate solutions? The use of pressure points and arm manipulations can often be quite effective, yet this was not pursued. Why not?
Indeed, why not? Certainly it is to the benefit of communities, schools, states, individual citizens, and the officers to review training regarding reasonable force. Particularly since police are given near monopolistic use of force to uphold and enforce the law. We are all safer when appropriate guidelines are in place followed up with training that reflects those guidelines, we could all do with fewer tragic reports. I join Rapport in his conclusion:
My sense – and I am certainly no expert – is that police training needs to be reviewed. If police are being trained improperly – teaching them to shoot to kill too often, not teaching them effective techniques to ensure compliance without excessive violence – then there will continue to be confrontations between the police and the public that could have been avoided.
Furthermore, it is worth mentioning that law enforcement is often left with job performance incentives, despite the effort to remove quotas in many places, there are often rewards for officer performance attached to their arrest records and convictions. No doubt an incentive that encourages arrests and convictions without necessary corrective feedback will invite abuse of the police power.
Perhaps – and it seems reasonable to assume – a full review of procedures and training is necessary. Better instruction on how to apply the law, where to look for crime, and reacting appropriately will strengthen trust in law enforcement and more importantly protect innocent people from the often unintended but real harm that results from overly aggressive law administration and enforcement.
INSULATING LAW ENFORCEMENT FROM THE COSTS OF THEIR ACTIONS CREATES LESS ACCOUNTABLE GOVERNMENT
Not all incentives are about inducing behavior, some poor incentives appear when actors do not bear the full costs of their actions, which makes a behavior cheaper. Often officers, supervisors, prosecutors and executive officials do not bear the costs for their poor decisions, as a result they are less likely to expend the effort (costs) on careful policing and investigating.
In some locations, such as Maryland, officers have been granted a separate Bill of Rights, which protect them from investigations and criminal charges by creating higher standards that are otherwise inapplicable to the average suspect (read this great post from Popehat for a detailed analysis). This creates a layer of insulation, where police are emboldened to act more aggressively as it is not against their interests to do so (not to mention it may even be rewarded as I previously stated). They simply do not bear the full costs of their actions.
This stands in contrast in comparison to the fact that we have exculpated police a priori, yet feel no such desire to do so for other professions. Doctors and lawyers (not so much prosecutors) are both accountable for their negligence and criminal behavior. Both are subject to disciplinary boards, held to professional standards, and importantly are open to suit and even criminal liability if they fail in their respective duties. Not unexpectedly they carry insurance policies, which provides a necessary feedback loop of their costs. If they are sued too often they will be priced out of practice, sometimes in a single instance. However, nationwide studies indicate that officers are nearly never held to a similar standard despite the fact that they literally hold lives in their hands. Very few are ever indemnified for their actions, even when they should be legally.
Qualified immunity, special bills of rights, prosecutorial misconduct, bureaucratic insulation, even the close knit law enforcement community can act as insulating factors, preventing law enforcement from feeling the costs of their misconduct. All of which act against the interest of the general citizenry, emboldening police and prosecutors to err on the side of force instead of caution. Ken White at Popehat wrote about these poor incentives discussing the aforementioned Kansas couple raided by their local SWAT, writing on the police he stated, “They’re also unaccountable in terms of basic competence. There was no incentive for the officers to learn, and know, that field tests are unreliable. What does it matter to them? They get paid whether or not they’re reliable, paid whether the search turns up marijuana or tea. Moreover, they’re insulated from any civil liability for relying on junk science.” Incentives to provide better police work, to rely on bad methodology, junk science, questionable tactics, are all lessened by the many ways the costs of bad policing are externalized.
Providing special protections for law enforcement undermines the safety of officers and citizens and weakens the integrity of the executive branch. Turning it from a rule bound branch to an arbitrary branch with low accountability. And that is exactly what is meant by the Rule of Law, an often touted value in politics. Applying a different set of rules to different groups based without a compelling basis (some of which may exists for law enforcement) is the exact abuse that was addressed from the Magna Carta to the Bill of Rights. All of which, to one degree or another were predicated on stemming the privileged treatment of a few, particularly the few who enforced and executed the law, at the expense of the many.
Often we mistake oversight as accountability, however proper oversight is only a single aspect of a solution and one which, alone, is susceptible to many failures. Though internal investigations of police conduct exists, they often act as protection for police conduct instead of objective evaluation. The Nation wrote that internal affairs unlike their television characterizations in “real life they tend to insulate the police from serious external sanction.” Quoting a former district attorney, Jason Leventhal, they continue, “I stopped cooperating with the IAB ten years ago… IA will never, ever credit the claim of police abuse. They hide witnesses, they push witnesses around. The only time I cooperate with them is when I know I have their hands tied behind their back.” [They] act more as police insulation than provide investigations.” Internal self regulation is likely to backfire as described, particularly when other external pressures have been removed.
Often through ends over means reasoning we insist the police must be allowed to do their job (instead of do their job well) and have eroded some of the useful mechanisms that require government actors to bear the costs of their actions. In short, we have created one set of rules for ourselves but allowed those who can exercise force against us insulating privileges.
WE MUST DECIDE IF THE COST OF ENFORCING A LAW IS GREATER THAN ALLOWING THE ALLEGED HARM
As previously mentioned, law is a double edged sword, it curtails unwanted and costly behavior, and generally is designed to protect third parties. However it may easily turn against the very people it was meant to protect. As such it becomes necessary to draw lines that prevent this weapon from turning against the innocent in pursuit of the guilty. Thus, we must determine what costs are justifiable in order to eliminate unwanted social behavior.
Enforcement of a law has a costs. Diverting resources to the bureaucratic machine of law enforcement is not a cheap endeavor. Pursuing crimes with little social return but high enforcement costs is particularly counterproductive, often times we do it simply because we haven’t considered the high costs of enforcement. Not only must we tally the direct costs of law enforcement but the opportunity costs of diverting resources from more demanding and harmful criminal acts.
Also, the cost of incarceration must be considered. It is easy to say, “X broke the law and must then face the consequences,” as if they were mandated from heaven. It is much more necessary to ask, do we want to inflict the pain on individuals, families and friends by incarcerating people for largely victimless crimes? Do we want to risk the continued institutionalization of criminal behavior, by sending minor non-violent offenders to prison to learn more troubling criminal behavior? The cost of incarceration is thus two-fold, the bill we pay with our taxes but also the costs of removing someone from a generally positive environment and placing them in an obviously bad one.
Last, do we want to increase the cost or burden on the innocent who are so often caught in the friendly fire of police conduct, literally and figuratively. When it is said we would rather ten guilty go unpunished than one innocent suffer that is a normative statement of how justice should work. It suggests that we should err on the side of caution and not aggression, otherwise the impact may overall be more detrimental, even turning those we should trust into symbols of brutality, authoritarianism, and abusive government. Pushing the costs of law enforcement on the unlucky few is simply unacceptable and fails to make us safer, it just changes the source of the danger.
Often, when we vote, advocate, or lobby, the consequences of the advocated laws are only considered on one side of the equation: what is the desired outcome from this law? We want less drugs in the streets and in our school, let’s criminalize drug transfers, possession, and create Drug Free Zones. We want safer roads we demand stricter traffic laws. We want lobster control we ask for lobster transportation standards. However, it must always be part of the debate to honestly address what we are asking law enforcement to do. This includes the honest admission that no matter the law, innocent people may feel the undeserved impact from our advocacy.
In closing, it is worth noting some of the opposition I have heard in personal conversation (in person and online) regarding our criminal code and law enforcement in general. First, that those that break the law put themselves at risk and thus deserve this sort of treatment. This is something I can agree with on many accounts, yet there should remain constraints on the police force and government action, in part because citizens are on presumably the same moral grounds as government actors. Hence so many protections against actions from government that constrain intrusion on people until there are grounds for the intrusion (the Fourth Amendment comes to mind). Furthermore, it is disingenuous to throw our hands in the air as if that is “just the way it is;” we have lobbied for this type of overinclusivity and we can pull on the reins.
Second, that talk of this nature is anti-police. Especially since they lay their lives on the line to protect our safety. This may be true, but it is not grounds for laws, procedures and policies that inevitably harm innocent people. But more honestly, it is also best for law enforcement to decrease the odds of escalated events and build community trust by implementing a measured approach to law enforcement. Primarily through sound criminal law, higher standards of police conduct, and internalization of their costs. This is in their best interest as well those of the people as a whole.
Simply put, incentives matter, and when those incentives encourage less accountable government it is time to take a hard look at why that is and the real cost associated with the over application of police powers. Particularly since getting it wrong invites the unwarranted use of force against ourselves and our neighbors. Keep this in mind as we approach the elections.
James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to firstname.lastname@example.org or follow him on twitter @jcdevereaux1. All views are my own.by