Thursday, October 22, 2015

Upholding the law

While walking in Waikiki recently, I head a police officer say to someone with whom and he and another officer were having a conversation, "I choose not to enforce that law." Presumably, the officer found the law in question either morally objectionable or too difficult to enforce. The latter option seems unlikely. If the law were too difficult to enforce, I think that the officer would have phrased his comment differently, suggesting, for example, that the law is unenforceable.

The incident prompted some musings about a question I had never before considered: Should police officers choose which laws to enforce?

In fact, no jurisdiction enforces all of its laws. First, laws everywhere are too numerous for every police officer to know every detail of every law. Furthermore, court decisions can add specificity or alter the meaning of laws; legislative bodies also enact new laws. Thus, even if a police officer learned all of the details of every law in her/his jurisdiction, the officer would continually need to monitor court cases and legislation in order to have a current knowledge of the law. Time spent this way would be time away from actual policing. The law's complexity and changing content explain why most lawyers choose to specialize in a particular aspect of the law. A police officer can only enforce laws of which s/he is aware.

Second, violations are too numerous for the police with their current work force to enforce every law constantly. A police officer positioned at a traffic light might spend most of the day writing traffic tickets (running a red light, failure to wear a seatbelt, using a handheld mobile device while driving (illegal in Hawaii), speeding, jaywalking, littering, etc.). Assigning that type of duty to an officer precludes the officer dealing with more pressing issues (e.g., responding to an alleged assault or theft) and might give citizens the feeling of living in a police state. Few citizens would support hiring enough police officers to enforce all laws constantly, even if that goal were a possibility.

Third, each level of law enforcement consequently already exercises some discretion about which laws to enforce when and under what circumstances. Judges have perhaps the least discretion. Facing an overwhelming caseload, a judge may generally dismiss certain types of cases; judges frequently push attorneys to reach a plea agreement before appearing in court and submit the agreement to the judge for review and approval, perhaps only a cursory review. Prosecutors, with limited staffs and budgets, have great latitude in deciding what charges to file against each defendant. And police officers make daily choices about the best use of their time and efforts. Some crimes attract media attention or the public regards as so infamous that law enforcement has little room for discretion, e.g., child molestation and murder. For other crimes, public attitudes and media attention may actually inhibit aggressive enforcement, e.g., the use of cameras to catch drivers who run red lights. But much of the time, each echelon of a police department's hierarchy will exercise some discretion in deciding which laws to enforce.

In sum, police discretion is unavoidable and reminds us that we do not live in a police state. Thus, the real question is not whether the police should exercise discretion but how the police can best exercise that discretion ethically. Here are four guidelines.

First, police officers should prioritize public safety. Enforcing laws against murder, assault, kidnapping, and so forth are obvious examples. Less obvious examples in which the police must exercise some measure of discretion are, illustratively, traffic laws such as stopping at red lights and not texting while driving that keep people safe on the road. Still less obvious examples are laws that establish sanitary regulations, building codes, and other rules intended to ensure public health and safety.

Second, police officers should make protecting property less of a priority than protecting public safety. People are more important than property. Tangentially, a woman who had a valid license for carrying a concealed weapon recently drew her weapon and fired at the vehicle of shoplifters fleeing a Home Depot store. The woman's shots thankfully did not injure anyone, including innocent bystanders. The attempted use of deadly force to stop thieves who pose no physical threat to anyone is morally outrageous.

Third, police should assign laws intended to make life more enjoyable and violations that neither endanger public safety nor destroy property their lowest priority. For example, governments may have a valid moral interest in banning the homeless from sleeping overnight in a public park or prohibiting begging. Those activities, however, do not inherently endanger public safety or property and the police may appropriately assign enforcement a low priority.

Fourth, the police should exercise their discretion and refuse to enforce unconstitutional laws. Nineteenth and twentieth century Jim Crow laws that mandated treating people differently based upon race are historical examples of clearly unconstitutional laws. I suspect that the officer whose remark prompted this post had reference to laws limiting the number of consecutive hours that a person may spent on Waikiki's streets, parks, and beaches. The city intends those laws to keep homeless people from establishing temporary dwellings in the midst of the city's tourist and business districts. The laws have ignited much controversy because the city has not made a commensurate provision for assisting and housing its homeless population.

Reflecting about police discretion in deciding which laws to enforce has triggered three final thoughts.

First, communities and citizens can beneficially engage in public discourse with the police on these issues. Good policing is partially a function of police responsiveness to public concerns. Public discourse and openness about the use and shape of police discretion also exerts a healthy influence on the police to maintain honorable and morally defensible policies. Police officers who walk a beat can get to know the local community in urban areas in a way that police officers who cruise in patrol cars can never achieve.

Second, New York City at the end of the twentieth century aggressively enforced laws against relatively minor infractions (loitering, graffiti, public drunkenness, shoplifting, vandalism, etc.). The purpose of this campaign was to interdict offenders before they committed crimes that are more serious. Although crime rates in New York City declined, crime rates across almost all of the US declined during that same period. Researchers have not been able to determine whether New York City's much touted enforcement efforts were actually effective. Good research has the potential to improve policing by informing the public and law enforcement about which crimes lead to more serious or repeat offenses and where the police can best utilize their limited resources.

Finally, reducing crime is no panacea and sometimes is more costly than addressing the underlying problem(s). For example, many drug addicts commit minor crimes to obtain money with which to purchase drugs. Incarcerating addicts reduces crimes rates but at a significant cost to society. Mandating treatment and improving addiction treatment options is less costly than is warehousing addicts. In Hawaii, displacing homeless persons from one area of an island to another area on the same island achieves little. The community helping homeless people transition back into society produces a win for the homeless, the community, and business. Besides, helping people is the right thing to do!


Anonymous said...

"The attempted use of deadly force to stop thieves who pose no physical threat to anyone is morally outrageous." And probably criminal. It would be in my state (which I ironically learned that in my mandated CHL training).

George Clifford said...

Unfortunately, "stand your ground" laws in some states legalize the use of deadly force to protect property.