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Sunday, December 7, 2014

Intentions are only part of the picture

I am no great fan of empowering the police to intervene in our citizens lives. I look at the current wave of outrage regarding police killing with a great deal of ambivalence. The deaths are a culmination of a host of circumstances and addressing police over reach will not be fixed easily. Drawing attention to these killings using protests is a step toward holding those responsible accountable. However, I believe it is reasonable to consider taking a broader view of who is accountable.

We need to remember who the police are and why they are employed. They are agents of the state and employed to enforce the law. The more laws and rules we have, the more we will need to employ police to enforce them. The more we desire to the state to micromanage the affairs of its citizens, the more intrusive the it becomes, through the actions of its enforcement agents which include the police.

At the most simple level, we need to understand that not all undesirable behaviors should be prohibited using the power of the law. However, that concept seems to be ignored as we increasingly embrace the view that many if not all undesirable actions should be curbed primarily via the use of state force.

Attempts to curb the use of alcohol resulted in an unmitigated failure which are understood under the term Prohibition. Prohibition (capital P) resulted in expansion of state powers, corruption of law enforcement, and creation of powerful crime syndicates. While prohibition of alcohol has all but ended, we have not abandoned a variety of other prohibitions (small P) including various drug prohibitions. They have has the same effects as alcohol prohibition and have been equally unsuccessful and perhaps even more destructive in terms of unintended consequences.

Prohibitions in general have resulted in resulted in expansion of police powers (all in the name of the war on drugs) and have served as the basis for civil seizure statues (blogged on earlier). The death of Eric Garner would not have happened if not for the state of NY heavily taxing cigarettes and creating incentives for creation of an underground economy.  Professor Stephen Carter is cited by Ilya Somin (Professor of Law at George Mason University) in the Washington Post (Link):
On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
I wish this caution were only theoretical. It isn’t. Whatever your view on the refusal of a New York City grand jury to indict the police officer whose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: He was selling individual cigarettes, or loosies, in violation of New York law…..

The problem is actually broader. It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand.It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right.

As Carter notes, “activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.” But we should always remember that “[e]very new law requires enforcement; every act of enforcement includes the possibility of violence.” If we really want to curb police abuses, we should think carefully about whether all the laws we have on the books are really worth killing for.

All powerful tools have the potential to do great good or great harm.  

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