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.