Day #048: A new brand of “law and order”

What is the purpose of our laws and how should they be enforced?

September 3, 2014; 8:57 AM • by Aaron Williams

Inspired by Michael Bierut’s 100 Day Project, 100 Days to a Better RVA strives to introduce and investigate unique ideas to improving the city of Richmond. View the entire project here and the intro here.

• Idea: Embrace a more literal legal system with less harsh penalties, track enforcement/non-enforcement data, and strike unenforced laws from the books.
• Difficulty: 4 — Understanding has to be the priority so data collection is the easiest first step. Fighting biases that are built into our hearts and laws will be a much more difficult second step.

At the core of social contract theory is the idea that individuals have explicitly or implicitly sacrificed some rights to a ruler/administrator in exchange for the protection of remaining rights. Parts of our modern legal system make a mockery of this idea. Law enforcement needs to collect more data to understand our biases before developing a more literal and stream-lined set of laws.

The systemic bias of the American justice system is a tragedy. The problems start before apprehension when blacks and hispanics are three times more likely to be searched during a traffic stop. Then those same groups are twice as likely to be arrested, and four times as likely to experience the use of force. Drug offenses are comparable between whites and blacks, but blacks are 10.1 time more like than whites to enter prisons for drug offenses.

We don’t understand the full scope of our inability to provide equal protection of the law. Anonymous data needs to be collected in order to understand and quantify biases. For example, when a drunk suburban minor gets a curfew violation instead of a possession charge, there is no datapoint representing an officer’s decision.

— ∮∮∮ —

Victimless crimes should have lighter penalties.¹ The police currently have flexibility in the summons and arrests they doll out, and the draconian nature of our laws gives them a strong incentive to enforce with discretion.² This undermines rule of law: the belief that law, not individual officials, should rule the government.

A first time arrest for 0.49 ounces of marijuana has a maximum penalty of 30 days in jail and a $500 fine. A first time arrest for 0.5 ounces is a felony and can result in 1-10 years in jail and a $2,500 fine. Instead of allowing the police collecting evidence and issuing summons and the city/district attorney to decide between these two insanely different consequences based on an arbitrary line, the consequences should be significantly less severe and more literal.³

On a different level, local laws and ordinances should be more evenly enforced with lesser consequences. If having an open alcohol container in public is a right society wants to remove, then $20 citations to everyone drinking on Belle Isle would be more effective and equitable than citing one person with a Class 4 misdemeanor.

One of the main goals of the criminal justice system is to act as a deterrent. It’s the justification for expanding punishments as a disincentive to crime. This makes huge assumptions about the rational behavior of individuals. Also, research shows increased punishments aren’t effective deterrents because people heavily discount the future and are myopic.

Another goal of the justice system is locking people up so they can’t commit crimes. This is effective at reducing crime in the short run but has longterm consequences. Drugs destroy communities, but so does locking up huge parts of communities. The stigma associated with criminal records and lost opportunities for education and career development have built a tragic cycle that reenforces poverty and recidivism. Criminals should go to prison, but at what point are we destroying a neighborhood to keep it from destroying itself?

The push for a more literal justice system is usually associated with “law and order” candidates. Those candidates usually promote stricter punishments, mandatory minimums, the death penalty, and three strikes laws. The phrase “law and order” gained prominence in the 1960’s with candidates like Richard Nixon who were subtly pandering to southern segregationists. This is not what I am advocating.

— ∮∮∮ —

Richmond and Virginia should also continue to remove unenforced laws from the books. Laws such as the one banning the killing any animal other than a raccoon on Sundays are not worthy of society.

I am sympathetic to the desire to save money and time by not removing these laws, but a transparent legal code is the backbone to establishing and defending the social contract. Leaving unnecessary laws on the books as a cost saving measure undermines the power of the implicit agreement between a government and its people while making understanding society’s rules more cumbersome. The complaint that providing a book of all local and state laws for every citizen is impractical because of its length is as much an indictment on the failure of our laws as it is cost/space/green argument.

More literal laws and lighter penalties for victimless crimes would lead to a higher enforcement rate and less police flexibility which has the potential to create a more equitable justice system. Removing unenforced laws would also add clarity to our legal system while building a simpler legal code that promotes the social contract and rule of law. These are valuable and essential pursuits for a society plagued by laws that are clearly not equally enforced on all races, incomes, and neighborhoods.

Today I focused on laws and investigation. Tomorrow I will focus on laws and the prosecution of offenders.

Love this idea? Think it’s terrible? Have one that’s ten times better? Head over to the 100 Days to a Better RVA Facebook page and join in the conversation.

Photo by: svacher

September 3, 2014 8:57 AM 3