Tag: policing

Categories
Articles

Courtesy for Some, Misdemeanors for Others

Originally published at Cato Institute by John Pfaff | April 16, 2019

Case: Whren v. US

I am pleased to have this chance to share some thoughts on Sarah Seo’s new book, Policing the Open Road, about the relationship between our car-centered culture and policing. The fascinating historical story she tells—how the introduction of the mass-produced car, which seems so unrelated to criminal justice, led to fundamental changes in policing—alone makes her introductory essay worth reading. Like: why are the police trained to be polite? Because when they started policing roads, they suddenly came into contract with middle- and upper-class citizens, and their prior gruffness was no longer acceptable.

Perhaps more important, Seo’s book is part of a critical refocusing of our discussion of criminal justice reform, away from mass incarceration (where I spend most of my time) and towards mass punishment. Most reform discussions focus on prisons, and prison populations are the central metric by which we compare ourselves to other countries and our own past. But prisons, and the generally serious offenses that send people there, are just the tip of the punishment iceberg. While there are about 1.4 million people in prison, we send over 10 million to jails every year, and we make about 10 or 11 million arrests—most of which are for offenses that will never send someone to prison (only about 500,000 are for serious violence and 1.3 million for serious property crimes).

In other words, while our reform efforts tend to focus on felonies and prisons—on incarceration—almost everyone’s contact with criminal justice is through the far vaster, far more invisible, and far more disorganized world of Misdemeanorland (to steal Issa Kohler-Hausmann’s fantastic neologism). And as people like Kohler-Hausmann and Alexandra Natapoff (in her Punishment Without Crime) have recently shown, the overall impact of Misdemeanorland surely dwarfs that of the felony system, even if it receives only a fraction of the attention. Seo’s examination of policing automobiles is an important contribution to this, since she is looking at the single most common form of police-citizen interaction (at least for those who do not live in a small subset of heavily policed urban neighborhoods), and one of the few that easily and frequently crosses the lines of race and class.

In fact, it was this universality of traffic stops that jumped out at me, leading first to one troubling observation and then to one troubling question.

To start, Seo’s account complicates some aspects of the narrative we rely on to explain why our system is so punitive, especially at the misdemeanor level. Oftentimes discussions about criminal justice reform turn to the issue of “overcriminalization,” the idea that we criminalize too much conduct that should not be a crime in the first place. By and large, this is somewhat of a red herring in the context of felonies and prison populations; even if many of the people in prison need not be there (or be there for as long), almost all have often been convicted of conduct we all agree should remain criminalized (like assault or theft). But it is not a minor point when we get to Misdemeanorland.

Misdemeanorland is defined by overcriminalization. We have criminalized as misdemeanors all sorts of conduct that is unappealing and problematic but almost certainly not deserving of any sort of criminal punishment, like jaywalking, spitting on the street—or even non-reckless speeding. And even when the conduct these low-level laws target may seem criminally problematic, the laws are often drafted so broadly that they cover all sorts of behavior they surely shouldn’t.

Most discussions of this overcriminalization of Misdemeanorland frame it as the logical end-result of America’s deep-seated racism and classism. We quickly turn to Misdemeanorland to handle things like speeding or playing loud music because of an almost instinctive desire to punish the poor, people of color, and especially poor people of color, a response that crowds out less punitive ways to address these issues.

That instinct is no doubt significant, but Seo’s account introduces an important wrinkle to this take.

When states first stated regulating driving, the people driving were far more likely to be middle- or upper-class and white—they very people we think (correctly) that the system goes out of its way to treat better. Yet even here, our instinct was to regulate driving primarily through the criminal code and police enforcement. As Seo points out, the rise of the car led to wealthier Americans suddenly having encounters with the (rapidly expanding) police, not with local and state governments coming up with new non-police ways to regulate driving. And the statutory responses were often punitive as well. In Georgia, for example, every traffic violation is a misdemeanor carrying not only the risk of a fine but of jail time.

Now, to be absolutely clear, if wealthier white Americans and their families and friends were repeatedly subjected to the indignities of our massive misdemeanor system—arrested and cuffed in public, shipped off to Rikers for a few days, and then saddled with fines and fees and restrictions on liberty for nothing more than, say, crossing in the middle of the street or driving without a seatbelt on—we would surely see a massive push for changes, and Misdemeanorland would not be nearly as invisible to most people as it is.

But Seo’s historical account points out just how deeply held our punitive instinct is. It is an instinct that has waxed and waned, to be sure—our incarceration rates have been much lower in the past, even when national politics were surely more punitive—but Seo’s story of cars and policing and driving misdemeanors is an important reminder of just how broad that instinct can be.

Seo’s discussion of the normalcy of traffic stops also brought up for me an intriguing question about policing reform. While there is a broad bipartisan consensus for prison reform, such is not the case for policing, and I wonder if traffic policing, and the civility-in-policing norms it created, is one reason why. Despite new data about the remarkable number of Americans who know someone who has had at least some contact with prisons or jails, those two institutions remain generally alien to most people. When we hear that conditions are awful or abusive, many if not most voters do not filter that information through any personal experience.

Such is not the case, however, for policing. Far more people have had interactions with the police than with prison or jail, and most of those interactions have been via traffic stops—stops where the police, as Seo points out, have been trained to be more polite. So when people otherwise uninvolved with the criminal justice system hear about police brutality, aggressiveness, and harassment, they have personal experiences to turn to—experiences that do not line up with those accounts. “Well, all my interactions with the police have been polite and respectful” might be anecdotal reasoning, but it is often compelling anecdotal reasoning.

Obviously the solution isn’t to encourage police to be less civil when stopping suburban motorists. But by highlighting the unique ubiquity of police vehicle stops, Seo may have also shed light on why efforts to reform policing seem to face more of an upward battle than those to fix other aspects of our flawed criminal justice system.

Categories
Articles

Pretextual Stops and the General Warrant: Stopping the March of the Whren Doctrine

Originally published at Cato Institute by Jay Schweikert | April 25, 2018

Cases: Randy Johnson v. US, Whren v. US

The specific language of the Fourth Amendment was largely a product of the colonists’ experience with the noxious institution of the general warrant. Historically, general warrants—and specifically, writs of assistance—gave law enforcement broad discretion to search wherever and whatever they deemed necessary, without the need to establish specific probable cause before a judicial officer. Such broad discretion enabled abusive, selective enforcement, and the colonists’ contempt for those arbitrary practices was a major cause for the Revolutionary War itself. But 227 years after ratification of the Fourth Amendment, we are tragically approaching a stealth resurrection of the general warrant, in the form of pretextual stops. In Whren v. United States, 517 U.S. 806 (1996), the Supreme Court held that the actual intent of law enforcement officers in making a stop—even unlawful intent, like racial discrimination—is irrelevant to the legality of a traffic stop under the Fourth Amendment, so long as there is probable cause to believe that some traffic violation occurred. The practical effect of this decision has been to give police officers nearly unfettered discretion to stop any person they choose at any time. After all, no one can actually operate a motor vehicle for an extended period of time without running afoul of some traffic law. Especially when combined with other areas of Fourth Amendment law that create expansive exceptions to the warrant requirement, Whren itself has already been described as the “twentieth‐​century version of the general warrant.” But if that were not bad enough, the Seventh Circuit, in an en banc decision, recently extended the Whren doctrine even to parking violations—and effectively, to any and all fine‐​only offenses, no matter how trivial. Especially in light of the rampant state of overcriminalization in our country today, that move represents an endorsement of the general warrant in all but name. We have so many criminal laws today that we cannot even count them all, and states routinely regulate a huge swath of generally harmless conduct that regular citizens engage in every day. If violation of any regulation whatsoever is sufficient to justify a police stop (regardless of whether that regulation was actually the motive behind the stop), then police can, in effect, stop anyone they want to. The Cato Institute has therefore filed an amicus brief urging the Supreme Court to grant cert in this case, reverse the Seventh Circuit, and reconsider the Whren doctrine entirely.

Categories
Articles

Too Many Laws, Too Many Costs

Originally published by Cato Institute by David Boaz | February 2, 2015

As 2014 drew to a close, the mainstream media were full of laments about the “least productive Congress.” Or more precisely that the just‐​concluded 113th Congress was the secondleast productive Congress ever (since the mid‐​1940s when these tallies began), second only to the 2011-12 112th Congress. But what’s the definition of a “productive Congress”? One that passes laws, of course, lots of laws. Congress passed only 297 laws in the past two years, exceeded in slackerdom only by the 284 laws passed in the previous two years of divided government.

All this productivity analysis assumes that passing laws is good, and passing more laws is better. But as the year ended, we also saw plenty of indications that many, perhaps most, laws — that is, most mandates, bans, regulations, taxes, subsidies, boondoggles, and transfer programs — do more harm than good.

Two articles in the Washington Post on December 6 reminded me that too many laws impede enterprise, charity, innovation, and growth.

Brian Levy is vice president of a company that works to develop and fund energy efficiency and renewableenergy projects. Inspired by the “micro‐​houses” movement, he decided to build his own tiny house in the expensive District of Columbia. For $77,000 he built a house that’s 11 feet wide and 22 feet long, with 210 square feet of living space. It has a galley kitchen and a full‐​size bed, the Post reports — although he can’t sleep overnight there because of a provision in District law.” A 210‐​squarefoot house wouldn’t be my cup of tea. But it’s his house, and it won an Award of Merit from the American Institute of Architects. Why can’t he live there? Because, the Post reports, “the alley next to his lot is not 30 feet wide and does not connect to a public street.” So much for encouraging innovation and the green economy.

Another story the same day reported that the Charles Darwin Research Station on the Galapagos Islands, off the coast of Ecuador, supports itself by operating a small store — “selling mostly clothing with the Charles Darwin Foundation’s logo. But then it added swimsuits, sunglasses, Ecuadoran chocolate and artwork, and the local traders cried foul. A local mayor agreed and shut down the store.” The Research Station is also hampered by a U.S. tax provision that prevents the Galapagos Conservancy from fully funding it. So U.S. tax law and local cronyism may combine to shut down “the oldest and most prominent research organization in the famed archipelago that inspired Darwin’s masterwork, On the Origin of Species.”

Far worse than those unfortunate outcomes was the fate of Eric Garner, who died in a police chokehold after he resisted the attempt to arrest him for selling individual cigarettes — “loosies” — on the street. Why do people sell cigarettes on the street? Because New York has the country’s highest cigarette taxes, and cigarettes smuggled in from low‐​tax states such as Virginia can be sold much more cheaply. Garner had been arrested more than 30 times, most often for selling cigarettes on the street. Yale law professor Stephen Carter wrote in the days after Garner’s death:

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.

In his book Overcriminalization: The Limits of the Criminal Law, Douglas Husak of Rutgers points out that federal law now includes more than 3,000 crimes, and there may be 300,000 or more federal regulations enforceable through criminal punishment at the discretion of an administrative agency. Which is why criminal defense attorney and Cato adjunct scholar Harvey Silverglate titled his book Three Felonies a Day.

As I wrote at USATo​day​.com, “the more laws we pass, the more chances there are for people to run afoul of the police. Especially when we outlaw peaceful activities, such as smoking marijuana, selling untaxed cigarettes or feeding the homeless.”

If Congress wants to be really productive, it should repeal laws. It could start by reviewing the laws that create 3,000 federal crimes. And federal, state, and local governments should consider whether it’s really a good idea to use armed agents to enforce laws and regulations about selling orchids or raw milk, letting your child play in the park, or writing a school story about killing a dinosaur with a gun.