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Saturday, January 03, 2015

The Problem with Petty, Pedantic, Penny-Ante Policing

As a follow-up to yesterday's post, I'd like to say a little bit more about what seems wrong, to me, with pervasive small-fry/penny-ante policing, both in the form of “broken windows” and “stop and frisk” policies like those associated with post-Giuliani New York City, and with more naked attempts to use the petty criminal justice system for revenue purposes like we've seen in Ferguson and like critics of red light cameras and similar devices have been alleging for years. As a rule of law specialist, and someone whose thinking is moving more in the direction of the democratic rule of law this year, it seems to me that such regimes are highly problematic even if (in a hypothetical universe where we don't have America's race problem) carried out in a genuinely racially unbiased fashion. And they remain problematic even if it can be shown, as some commenters suggested in the prior post, that policies like broken windows actually reduce what I would like to tendentiously call "real crime."

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.

Here's a silly case from a few months ago. Culver City, CA, had a notorious fifteen-foot high parking signpole with eight separate signs, some (but not all!) listing complicated restrictions. It hit the press, to public outrage and mockery, and the mayor removed it, promising to replace it with one that only had four signs. Now, there are a lot of things that might be said about this kind of rule. Were I cited under it, I'd probably try a due process defense. From a jurisprudential perspective, we might wonder whether it ran afoul of Fuller's dictum that a law should not be impossible to follow (I suppose the safest course would be to just read it as a really big “no parking, ever,” sign, but if the city wants to ban parking at a spot outright, one might think it ought to just do so openly). It also seems like the mayor's “solution” is small comfort—50% of insanity is still insanity. But what I really want to ask is: how should we expect someone who gets a ticket under such a sign to feel? Are they to understand themselves to have actually done something wrong? Will they finish their interaction with the legal system feeling well-treated or ill-used? Will they trust the next public official they see? Will they have any clue when they can legally park in the same spot next time? Will they even bother to try?

This isn't just about legal complexity. When the issue is serious, when the stakes are high, or when the regulated are sopisticated, legal complexity might be justified. And this isn't a brief for some kind of anarchism or thoughtless libertarianism. Rather, it's about harassing people and filling their lives with legal triviality: about when normal people going about their day-to-day business, like picking up their kids from school, are liable to negative lotteries inflicted by the police over things that, honestly, don't matter. Then, it starts to feel less like law and more like “swarms of Officers to harrass our people, and eat out their substance.

Another illustrative case. Some years ago, a friend of mine was arrested for public drunkenness in New Orleans. Many will tell you that public drunkenness arrests are basically the tourist tax in New Orleans---so long as you don't wander out of the French Quarter, you're ok, but the clueless tourist who drunkenly stumbles a little too far out of the tourist zone gets (or got, at the time) about four hundred bucks in post-and-forfeit bail money as the penalty for not knowing the local norms. Such arrests are obnoxious enough as is---it's New Orleans, everybody's drunk, and the city survives off of the drunk tourist trade!---but this case was particularly bizarre, because, as I recall (and this was about a decade ago, so memory may embellish), she was arrested out of the back of a taxicab. She was drunk. She was in public. So she did what social norms as well as common sense suggest one is supposed to do: she called a cab to take her home. The officer saw her stumbling on the way to the cab, pulled it over, and arrested her. Tourist tax. But! Technically legal. Well within his powers.

Legal punishment ought to be seen as a consequence of genuine misconduct, not of bad luck. There are plenty of moral arguments for that claim, but perhaps most worrying is a pragmatic one: if day-to-day law on the streets becomes a negative lottery, it poses the danger of delegitimizing the system. Democratic law depends in extremis on democratic buy-in (just accept this for now; I'm trying to put together a book-length argument for it and related propositions at the moment): the people themselves are the ultimate source of legitimation as well as enforcement in a democratic legal system. If they become cynical about the legal system as a whole, and stop understanding it as an expression of their collective values, as a result of its visibly unreasonable or unjust impositions on their lives, then it ceases to be democratic. In sufficiently egregious cases, it might collapse; in less egregious cases, it might be maintained by sheer force of elites and the state, unhinged from ongoing democratic justification. Will a bunch of unfair traffic tickets achieve those horrible results on their own? No, obviously not. But they are a case of a larger phenomenon which, as a whole and if it becomes more pervasive, does threaten those results. And that seems to me to give us a good reason to oppose the sorts of things that the NYPD, out of the kindness of their temper-tantruming hearts, are currently not doing.

To be fair, taking such a position raises as many questions as it answers. We probably ought not to repeal all of the petty laws (every once in a while, someone really oughta get a parking ticket). And we can't leave it all to the discretion of police officers, because we know what happens when officials get too much discretion. So what do we do?

Until we discover a reliable way to actually control the abuse of on-the-ground official discretion—principal-agent problems, disparate information, we know the drill—it seems we have a trifecta of bad choices: repeal the laws, over-enforce the laws, or accept the price of discretion. Personally, the first option seems like the lesser evil. And, who knows—can social sanctions effectively keep the level of peeing in the street and parking in the disabled spot down to a dull roar even in the absence of punishment? Maybe the NYPD will help us find out.

Posted by Paul Gowder on January 3, 2015 at 08:00 AM in Current Affairs | Permalink


Where do you draw the line between "penny ante" crimes and "non-penny ante" crimes?

Posted by: Lucy | Jan 3, 2015 9:35:17 AM

It ain't easy, of course. But even though the middle is fuzzy, I think we can see the ends pretty clearly. There's a difference between murder and parking on the street sweeping day.

Posted by: Paul Gowder | Jan 3, 2015 9:39:25 AM

Maybe maybe not. It's that fuzzy paDo you arrest for peeping tom, trespassing, vs burglary, vs robbery, vs armed robbery.

Your theory is academic, it has no real world application.

So it's ok for a police officer of the same race to arrest but not different races. Why not simply arrest people who commit crimes regardless of color.

As for as New Orleans, I go often and rarely get drunk. I'm glad they arrest for public drunk and public urination. Isn't this the democratic rule of law. You just don't like it.

Posted by: Lucy | Jan 3, 2015 9:46:18 AM

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?

Posted by: Lucy | Jan 3, 2015 9:52:17 AM

The strategy of argument which supposes that simply because we cannot draw a firm line in the middle of a series of hypotheticals in the mucky space between different normatively meaningful categories we are obliged to throw out the categories altogether is inappropriate for practical policymaking. We can have a conversation about whether we want to err on permissive or the anti-permissive side of the ambiguity in the middle of the "get rid of penny-ante law enforcement" proposition; we can exercise pragmatic judgment,

Posted by: Paul Gowder | Jan 3, 2015 10:29:37 AM

Whoa, that's some heavy academic argument. I'm not real sure what it means.

I think you have looked at the two extremes and missed the middle (the forest for the trees, or is it the trees for the forest.)

Let's try this, if you don't like a "penny ante" law, the use the democratic process to get it repealed. You don't want to do that. You will have to admit that there is a reason for laws against littering, parking, speed, trespassing, etc.

The reason New York has a no parking day, is so that the street cleaners can come along and clean the streets. Without that day, and the enforcement of the law, the streets will never be cleaned. Then the citizens will complain that the city is dirty, and this too will be a "tourist tax" because tourists will not want to go to a "dirty" city.

The police officer doesn't have a Stanford and a Harvard degree. He/she is paid a small salary and asked to enforce the laws. Why beat up on the policeman who is on the street?

Even "penny ante" laws are there for a reason. They were put in place by governing bodies, and they can be repealed by a majority vote of the governing body. If you don't like them, then make an argument to the duly elected body who makes the laws.

I don't want to get in a political discussion because it is clear you are a Democrat, and I don't have the time or energy. But it is interesting that both New York and New Orleans are governed by Democrats (Progressives) who may agree with your argument. Yet, the penny ante laws remain.

Your topic was "Problem with Petty, Pedantic, Penny-Ante Policing." Why don't you change it to the "Problem with Petty, Pedantic, Penny-Ante Government Bodies in Lawmaking." Let the poor police officer simply use his/her discretion to enforce the laws (all of the laws) against the lawbreakers regardless of race.

Posted by: Lucy | Jan 3, 2015 10:57:09 AM

I take my argument to be potentially directed to legislators and voters.

Posted by: Paul Gowder | Jan 3, 2015 11:02:06 AM

Whoa, that some heavy academic bull.

You want to use the extremes to support your attack on the middle. I respectfully disagree.

Your problem should not be with penny ante policing, it should be with the governmental body that has the penny ante law on the books.

Let's do away with no parking days. Well, we can't. Cities have to clean streets. If not, tourists will not come to a dirty city. Hence, your "tourist tax" rises.

Let's do away with public drunk. Well, we can't. We don't want a bunch of drunks walking around all the time. Tourist tax, again.

If you don't like the penny ante law, use the democratic process to get it repealed. Then, the police officer will not have to enforce it.

The thing that bothers me about the immigration debate -- is that law professors have absolutely no problem with selective enforcement of the immigration laws, but argue that the police should not selectively prosecute other laws.

Posted by: Lucy | Jan 3, 2015 11:03:41 AM

Thanks for the Saturday morning discussion. I appreciate your willingness to engage.

Posted by: Lucy | Jan 3, 2015 11:05:54 AM

I appreciate Lucy's perspective though we can do w/o the partisan potshot.

I'll repeat something I said before. I don't find all traffic laws "penny-ante" and they also aren't generally that "complicated," a recent USSC ruling aside. It isn't wrong to give out parking tickets, especially when double-parking inconveniences and at times even makes driving more dangerous. Duly note possibility of abuse, but I'm not talking about using the ticketing (fines) as an excuse to search cars or so forth here. The right price also can be debated.

The street cleaning example is a sound one. How "penny-ante" is it to require people (and change say $25 for rule breakers) to follow the rules once or twice a week here? Various regulations can be cited as penny-ante -- so it is a matter of degree & the average person and the academic will honestly say there isn't some clear line here. But, some violations can and should be enforced in various cases. The fact many, e.g., litter doesn't mean at some point (perhaps after a warning or two) littering (or some other garbage related violation) can result in a fine. Pot smoking is best ignored; but constantly doing so in front of a complex with young kids?

One more thing about the "broken window" theory. There are various ways to address the windows, not just criminal enforcement. For instance, many support community gardens and other beautification efforts. This is seen as a way to promote concern about the community too. Some tough on crime types treat such things with cynicism. But, that is something of a biased application of the policy they claim to support.

Posted by: Joe | Jan 3, 2015 1:15:42 PM

"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?"

Posted by: Lucy

I find your argument fascinating; you're trying to argue that 'penny ante' crimes need to be enforced, by using an example involving somebody's death.

Posted by: Barry | Jan 3, 2015 5:30:44 PM

I'm not arguing that. I'm saying police have discretion. If you want 2 warning before you are cited, then put it in the law.

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 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.

Posted by: Lucy | Jan 3, 2015 8:11:51 PM

"Petty" is in the eye of the beholder. No-parking laws seem petty--until a wrongly parked car causes an accident (by blocking intersection sight-lines), or slows down traffic for hundreds of commuters (because the parker, ignoring rush-hour restrictions, blocked a traffic lane). Turnstile jumping seems minimal, until it gets to be a large enough population that revenues decrease and service degrades. Public urination is de minimis, unless the whole block smells like urine, or those peeing are essentially exposing themselves in front of children.

Posted by: Unconvinced | Jan 4, 2015 11:55:30 AM

Lucy: "I'm not arguing that. "

Yes, you are. You just did.

Posted by: Barry | Jan 4, 2015 8:47:35 PM

I respectfully disagree with your conclusion that the enforcement of public order has nothing to do with preventing crime. Law enforcement is not the same thing as enforcement of public order. The latter may utilize the tools of the law (broken windows and stop + frisk), but the purpose is to prevent, not punish, crime. When the cops lean on those most likely to be up to no good, they are less likely to commit crimes. Would-be criminals worry about getting searched while holding contraband or weapons, or being hauled off for ignoring a raft of prior summonses, and so they stay out of the way of the cops, and out of your and my way, too. It's pretty simple and we have seen that it works. Now obviously I am not justifying law enforcement of minor offenses for revenue purposes. And I would be happy to see our criminal laws - both local and federal - drastically simplified and pared back. But I want the cops to keep leaning on the bad guys.

Posted by: Douglas Levene | Jan 4, 2015 9:43:25 PM

That last comment (Levene) really leaps out at me---how do the police identity "those most likely to be up to no good?" We've seen, with the many scandals surrounding racial profiling, that they are systematically bad at it, and even if they were just identifying people at random (rather than in the racially biased way they do), that amounts to the suggestion that it's ok to impose the costs of pervasive police intrusion on a large number of innocent people in order to deter a few criminals. Is that the view underlying broken windows policing?

Posted by: Paul Gowder | Jan 4, 2015 10:01:46 PM

The dramatic reductions in murder/violent crime rates in NYC in the Giuliani/Bloomberg era suggests that the cops are actually pretty good at figuring out who's up to no good. But we will have to agree to disagree about that.

Posted by: Douglas Levene | Jan 5, 2015 8:10:45 AM

Douglas: When NYC crime rates went down, they also went down across the country, in places where NYPD's unconstitutional and heavy-handed police tactics did not exist. Anyone who knows anything about the relationship between crime rates and policing knows that it's almost never a linear, cause-effect relationship.

All: I'm surprised that so much vacuous vitriol has been leveled at Paul's post and indeed Paul himself (see the troll Lucy especially). Paul's post was a reasonable, grounded, and well-informed invitation to a good discussion. You can disagree with it, but it certainly doesn't call for such puerile responses. I wonder why it went off the rails.

Paul: Welcome to Prawfs! Don't feed the trolls, especially when they attack you personally and won't list their real name.

Posted by: Steven R. Morrison | Jan 5, 2015 9:50:35 AM

"Anyone who knows anything about the relationship between crime rates and policing knows that it's almost never a linear, cause-effect relationship."

What do you think of Prof. Larry Rosenthal's comment in a previous thread?

Steven R. Morrison comes off as a tad harsh here ('puerile' ... 'the troll' ... 'vacuous vitriol' ... "anyone who knows anything") but hey he does use his real name. So, you know, that's okay! :)

I'm somewhat turned off by the OP since I think it's a bit too broadly expressed. I also don't think people writing comments on blogs need to use their real name so that their employers et. al. can know what they say there. The Supreme Court itself has expressed the value of anonymous speech but some seem to favor the Scalia approach. As to "real name," would someone really do a search to determine if "Lucy Clark" or whatever is the "real name"?

Posted by: Joe | Jan 5, 2015 10:25:05 AM


Franklin Zimring has exhaustively demonstrated that the crime declines in New York City outstrip those in any other comparable city. We should remember as well that New York's tactics have migrated to many other cities and help explain their crime declines as well. Los Angeles is a particularly good example. Beyond that, a number of studies have concluded that the only intervention that consistently reduces crime is aggressive patrol targeting statistical hot spots of crime. New York likely was so taken with its own success that it pushed this tactic past the point of diminishing returns in recent years, but the argument so many legal academics continue to make that aggressive policing does not reduce crime more likely reflects confirmation bias than an impartial analysis of the data.


Posted by: Larry Rosenthal | Jan 5, 2015 5:13:17 PM

Steven I'm sorry you don't like anonymous posters. Be careful it may surprise you who I am. I just thought academics was about challenging a point of view. I didn't realize your skin was so thin.

Posted by: Lucy | Jan 5, 2015 6:45:12 PM


Thanks for the response, and the correction. Your comments are always helpful.


Posted by: Steven R. Morrison | Jan 5, 2015 8:54:04 PM

Does anyone have a better response than "nevermind" to an appeal to a leading criminologist? It is not my area of expertise, but -- respecting the person cited -- I don't think he is the only voice out there. There are others who disagree with him to some degree. You need not use your real name.

Posted by: Joe | Jan 6, 2015 10:53:05 AM

" New York likely was so taken with its own success that it pushed this tactic past the point of diminishing returns in recent years, "

Please rewrite that in a manner which is more honest, such as:

'New York used excessive force and arrested many innocent people, and/or charged people excessively.'

Posted by: Barry | Jan 6, 2015 3:08:34 PM

Barry, Post-Giuliani New York City is surprised to learn that the way to reduce shootings and murder rates each by over two thirds is to arrest many innocent people.

Isn't that a strange cause and effect?

Posted by: Post-Giuliani New York City | Jan 6, 2015 11:51:21 PM

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