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Sunday, September 07, 2008

Inequitable Enforcement

Imagine that you're driving on a road where the maximum speed allowed is 55mph. You assume that you won't be stopped by the police unless you exceed, say, 65mph. You choose to drive, say, 58mph, and, to your surprise, you are stopped by a cop and she issues you a ticket.

What do you feel? Surprise? Indignation? Are you upset with the police? And if so, why? And can this indignation be framed as a constitutional argument in court?

The complex relationship between regulation and de-facto enforcement, and its connection to fairness, has intrigued me for quite a while, and recently I've started looking at it more closely, with my collaborator, Dan Portman. Our hope is to come up with a systematic analysis of this phenomenon, which we call "inequitable enforcement", to link it to the existing literature on police discretion, underenforcement, and pretextual arrests/stops, and to examine the possibility of making a successful legal argument against enforcement that may be legal, but feels unfair.

We've chosen the term "inequitable enforcement" because we really like how it ties to the concept of equity; in this respect, we've been immensely helped by my fabulous new colleague, Darien Shanske, and his work on equity. The term captures several aspects of the phenomenon. First, the problem is certainly not one of black-letter law. After all, under the existing caselaw, no one (or, as you'll see in a minute, almost no one) can require "more" of the police beyond adherence to the formal legal requirements. As we learned recently in VA v. Moore (2008), even if the police break local state laws by arresting you, you do not have a Federal constitutional case against them, provided that their performance did not fall under the constitutional minimum.

Second, our instinct is that a substantial part of the inequitability comes from a sense of unequal enforcement. Having the law enforced against you when you do not expect it stems, often, from engaging in what Margaret Raymond calls "penumbral crimes"; that is, crimes in which both the enforcement agency and the citizens share an assumption of unenforcement. Therefore, if the law is suddenly enforced against you, you feel discriminated against.

One of the first questions we hope to tackle in this inquiry is the possibility to create guidelines for distinguishing situations in which enforcement can, and should be viewed, as inequitable. Some pertinent criteria would be the type of law broken; the extent to which we can assume public knowledge of underenforcement standards (how would we measure such knowledge? Police regulations? Would there need to be an explicit communication between the enforcement agency and the citizens? Are there circumstances in which we can assume an implicit 'contract' between the police and the citizens, and if so, may the latter rely on it?); the extent to which we can, and should, rely on consensus about the "common sense" level of enforcement; how deep the illegality is located within the "penumbra" of crime; or how intense and intrusive the enforcement has been (i.e. a full arrest v. a Terry stop). The demographics of the citizen in question might also be an issue. Is it more "equitable" to enforce on recidivists?

Then, we hope to move on and assess the potential of constitutional arguments against inequitable enforcement. We can think of two possible paths: 4th Amendment arguments and equal protection arguments. If a petitioner chooses the former road, she will have to challenge and problematize the way in which probable cause has become the be-all, end-all parameter of reasonability for 4th Amendment purposes, but we do not think it inconceivable to incorporate a problem of inequitability into a "totality of the circumstances" assessment of reasonability.

The latter road is quite interesting in light of the court's examination of pretextual arrests and stops, such as in Whren et al v. US (1996). Is an argument of inequitability more palatable to the legal system in cases in which the defendant can point out to a clear "underlying agenda" behind the arrest or the stop? That is, would it be easier for us to recognize inequitability when the injured party is a member of a suspect class?

Finally, there's the question of remedies. If the court does recognize inequitability, would it be willing to uphold a motion to suppress or to dismiss? If not, could inequitable enforcement have legal meaning in other contexts, such as enriching the dossier of a zealously-enforcing cop? And can we count on the organizational culture of the police to instill in officers not only lawfulness, but common sense?

We'd be really interested to hear what you all think about this; not just about the viability of the constitutional argument, but also about the implications that an "inequitable enforcement" doctrine might have on compliance, police organization, and 4th Amendment interpretation.

Also, if there's any pertinent literature you think we should look at, let us know. We'll be much obliged.

Posted by Hadar Aviram on September 7, 2008 at 03:01 PM | Permalink


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Thanks for this, Craig! I like the multiple-variable yardstick. It's not exactly the one we're using, but there are similarities. And the Roosevelt reference is very cool.

Posted by: Hadar Aviram | Sep 8, 2008 10:44:36 PM

This idea has greater application than the equal protection context. Just yesterday I was praising (the story of) President Roosevelt enforcing the Sunday Laws. Here is a quote from an online encyclopedia: "the only purpose of the law was to provide graft and to keep the saloons as 'subservient allies to Tammany Hall.' He noted that the law had previously been enforced only against saloon keepers who could not pay off the police or those too honest to do so. Roosevelt warned that the real problem was not the sale of liquor, but corruption of the municipal government."

Discretionary rules regarding discovery and and other trial deadlines are easily abused by elected judges. They can be selectively enforced and ignored with impunity to favor or punish certain people.

And, as discussed, minor traffic laws provide great pretext to stop whomever an officer wants.

The resulting feelings of unfairness seem to grow from the following:(1) how important is the law (2) how easy is it to enforce (3) how severe are the consequences?

Thus, a 55 mph speed limit may be understood to be important because many people die on the roadways. Selective enforcement is accepted because full enforcement is difficult. And the consequences are not terrible - certainly not at 58 mph.
Alternatively, failing to use a turn signal is not serious; and although full enforcement is hard, you have never seen it enforced. All of a sudden, while riding with an African American friend, you get pulled over. It feels very unfair. And you can tell that it was pretextual - tough luck.
The Rules of Procedure and discovery are very important. But full enforcement is not difficult (federal judges do it!). And selective enforcement can have serious consequences. For example, one party is allowed to add an expert witness on the day of trial, or another party has an expert stricken for failing to provide a report on time (despite a pattern of lax enforcement that led the lawyer down the garden path).

I liked Roosevelt's solution because it forces law makers to attach appropriate punishment to the crime (thereby minimizing feelings of unfairness even if selectively enforced). But this is impractical if you must have full enforcement to get the result. I do think, though, that many of the classic pretextual reasons for stopping cars could easily be non-stoppable offenses, or require multiple violations to allow a stop (turn signal + weaving + no seat belt?)

Posted by: Craig | Sep 8, 2008 10:19:02 PM


Thanks again for the response. Two thought in reply, to the extent they are useful. FIrst, the meaning of reasonableness in the Fourth Amendment is actually a very specific and narrow version of reasonableness; the concept was textually mandated, and its meaning has been very specifically limited as a balance of two specific interest that is applied in a pretty specific way largely to match Fourth Amendment history. In contrast, my understanding is that you are trying to "pinpoint a feeling of unfairness," and are trying to unpack what makes you feel uneasy about certain things. But let's say you can accurately describe when you feel uneasy. Why do you think other people will feel uneasy when you feel uneasy? And why do you think that judges will agree that "a feeling of unfairness" equates with "unconstitutional"?

Second, and more broadly, I don't think there is any "magical process of acceptance" when judges add new concepts to the discourse. There are historical moments when a bunch of judges get together and decide it would be cool to change some law, and so they do it. But it's not magic: It's just a bunch of judges getting together and deciding it would be cool to change some law. This matters, I think, because when judges decide it would be cool to change the law, they are highly sensitive to having something to change the law to; the absence of an idea of where they are going is a major deterrent to rule-creation. An interesting example of this in U.S. Constitutional law is the fascinating 2004 Supreme Court decision Vieth v. Jubiller, where the Justices struggle over what standard the law should adopt to enforce a constitutional protection, all with the agreement that you need to adopt a relatively clear standard before the law can try to protect the constitutional interest.

Anyway, good luck with the project!

Posted by: Orin Kerr | Sep 8, 2008 10:45:16 AM

Mornin', folks,

How fun to wake up and find folks engaging with one's work before heading off to school.

I agree, Orin, that the challenge here is to pinpoint exactly what the feeling of unfairness is comprised of and whether there could be any consensus about it. Being an empiricist, of course, I'm thinking of ways to measure legal consciousness (Rob MacCoun has done some of this work about marijuana, and has actually shown how little people know about distinguishing black letter law from policy. This actually strengthens and weakens our point at the same time).

I think there is less of a disconnect between your two questions than might seem. What makes a standard of fairness less articulable, or quantifiable than, say, a standard of reasonability? There are several legal systems that actually have provisions that require fairness; Israel has only recently legislated a practice that had existed for years in case law - a sort of equity defense - whose successful usage could lead, and has, in some cases, led, to dismissing charges. Standards seem/are inarticulable, until suddenly they become articulable; why, and when, this magical process of acceptance into the discourse happens, is in itself a fascinating question, and my bias is toward answering it socio-politically.

BTW, if we're looking for a good reason to add these standards to our constitutional repertoire, there are also policy considerations here. If we think of Tom Tyler's work on compliance, adhering to equitable enforcement has the additional value of encouraging a broad base of compliance based on a shared perception of fairness. Of course, that said, and given MacCoun's work, we'd still be dealing with a slippery slope problem.

Thanks for all that, Chris! It's very helpful (and I'll look at your piece, and at Bill Stuntz's). I agree, data gathering is a huge problem. That could be one of the reasons why courts have been so resistant to look at this sort of discrimination, save in the few cases where some racial motive was plainly at work by explicit admission of the police officers in question. I also think there's something else going on (and this is kind of a Luhmannian systems theory argument): US constitutional discourse has been trained to recognize equal protection when it "sees" a suspect class. It is not a sensitive enough device to detect randomness as an equal protection problem. So, inequality becomes a constitutional issue only when a recognizable agenda, most often racial, can be detected. Now it may certainly be that, empirically, inequitability does cover up for racial profiling in many cases; this, of course, would also be impossible to measure. The only two ways I can think about measuring it are using statistical correlations between race and enforcement and inferring causality (a VERY VERY tricky business) or doing what police scholars do, which is ride in police cars and observe police behavior (and, unless the scholars are very good or "go native", the police might well modify their behavior in the presence of the criminologist). Anyway, yes, this is a hugely tricky business.

As to the victim issue, I've read a 2006 piece (the citation escapes me but I'll chase it when I get into the office) that talks about the harms of underenforcement for indigent victims; but those cases are really not the focus of my argument, and I expect that the classic problem of enforcement in Raymond's penumbra will be more relevant in offenses that don't generate specific, identifiable victims. Partly, BTW, because the existence of identifiable victims might lead us (and the courts) to perceive enforcement as more equitable.

I just wanted to say, folks, that this process is incredibly helpful for sorting out my ideas. I really appreciate your feedback.

Posted by: Hadar Aviram | Sep 8, 2008 10:13:03 AM

I argue here that the equal protection clause requires the equal provision of law-enforcement services (i.e., "the protection of the laws"), and that such a right would raise serious questions for our system of prosecutorial discretion. My focus is victims' right to be protected and have the law enforced, but a right to evenhanded prosecution would benefit unfairly-chosen defendants too. Bill Stuntz has given some suggestions about how to enforce that sort of norm (e.g., requiring prosecutors to show that they prosecute some number of similar cases). Data gathering is one very big problem.

Posted by: Chris | Sep 8, 2008 12:27:24 AM


Thanks for the response. I think there are two different questions here. The first question is how a constitutionally established standard becomes rule-ified over time through application. The second question is how an inability to articulate what a standard is or what it means should (and does) discourage courts from adopting it or recognizing it in the first place. My point is addressed to the second question, not the first.

Posted by: Orin Kerr | Sep 8, 2008 12:07:22 AM

I agree it's a tricky one, Orin, but that's what makes it interesting. Isn't it the case, though, with every standard, that it is vague until the courts decide it isn't? After all, any suspicion becomes "probable cause" at some intangible point - until the court makes it tangible. If our 4th Amendment analysis relies on "reasonability" as its guide, why wouldn't we be able to shape the content of reasonability in the penumbral context as we do in others?

Posted by: Hadar Aviram | Sep 7, 2008 11:06:51 PM


I think the difficulty is that perfect equity in enforcement is impossible, and no one can agree on what the precise and administrable guideposts should be to determine when inequity is "bad enough" that it violates some sort of constitutional norm. I certainly understand the urge to look for such guideposts, but I fear it's sort of like looking for Bigfoot.

Posted by: Orin Kerr | Sep 7, 2008 10:50:56 PM

Thanks for this, Bruce! Yes, I agree. Which is why we believe that the current focus on "pretextual enforcement" and "suspect classes" is part of the problem, but not necessarily the dominant part, and certainly not the entire problem.

I'm also pondering on whether the sense of "inequity" has a cultural component. That is, whether in some places (like the US) folks would prefer more reasonable regulation, which is strictly enforced, while in others (South America? the Middle East? just mentioning places where I've lived and that have different regulation cultures) people would prefer regimes of flexible enforcement regardless of how draconic regulation is.

Posted by: Hadar Aviram | Sep 7, 2008 4:00:35 PM

Great post. It seems like this idea would have application outside of criminal law, e.g. the RIAA copyright infringement suits.

I'm not sure that "unequal enforcement" is the real source of the indignation, however. Think of a jurisdiction that enforces speeding laws uniformly strictly (e.g., "55 means 55, not 56"). I think there might be a fair amount of indignation there too, which would not abate if it was widely enforced (in fact, the ire against red-light cameras seems to indicate the opposite). You could argue that it's now unequal between towns rather than persons; not everyone has to drive through that town. But even if speed limit or red-light enforcement was made uniformly strict nationwide, I believe the indignation would persist.

I think the indignation comes not from inequality, but from the breaching of the penumbra defined by practice around the umbra of the law. That penumbra is part of the ordinary person's internalized version of how the law works, although most people are able to recognize the difference. Thus, getting a ticket is a violation of the unwritten law -- that's what creates the indignation, regardless of whether others are subject to the same enforcement.

Posted by: Bruce Boyden | Sep 7, 2008 3:49:24 PM

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