The Trouble with Enforcement
Fresno criminal defense lawyer Rick Horowitz wrote earlier this week on his blog about some of the disturbing but common abuses of authority committed by police officers. He lays a large part of the blame at the feet of judges, who too often defer to the police in their decisions. Here is an excerpt:
In one recent and quite shocking case, the United States Court of Appeals for the Eleventh Circuit held that electrocuting a distraught homeless man because he had lost all hope was perfectly acceptable. The man’s sin? He was so distraught — in the video posted to youtube you can hear him crying relentlessly and speaking of how he would be better off dead — he did not stand when ordered to do so by the arresting officer. The officer decided that he would encourage Mr. Buckley to stand by repeatedly electrocuting him.
As has become increasingly common, the court found torturing Mr. Buckley for his lack of compliance to be perfectly acceptable.
Although, as the district court observed, the underlying offense of refusing to sign a traffic citation was relatively minor, we nevertheless credit the government with a significant interest in enforcing the law on its own terms, rather than on terms set by the arrestee. The government has an interest in arrests being completed efficiently and without waste of limited resources: police time and energy that may be needed elsewhere at any moment. Even though Plaintiff was handcuffed, he still refused repeatedly to comply with the most minimal of police instructions — that is, to stand up and to walk to the patrol car. That Plaintiff was resisting arrest weighs in the deputy’s favor.
The court stated in a footnote that the fact Mr. Buckley did not attackor menace the deputy “does not shield him from the use of force, even if it might result in pain.”
When I read cases in law school about police misconduct, I had roughly the same perception. The weekly preparation for my Criminal Procedure class often left me feeling outraged. The lengths to which courts will allow officers to go in pursuit of this “governmental interest” in maintaining order is often shocking. Physical violence, psychological manipulation, outright lying—all these methods are on the table, depending on the judge, perhaps, with minor limitations that often seem like mere lip-service to constitutional and human rights.
Certainly, we need some laws and we need some police; real crimes are committed by people who pose a threat to society every day. But while I agree that some blame must be laid with the courts, and of course with the officers themselves, the deeper problem is systemic and touches nearly every citizen. It is our belief that laws and enforcers are the best way or the only way to maintain civil society.
But before you can have a law-abiding society, you need people who believe in laws—people who believe that standard rules, equally applicable to everyone, are the best way to maintain a healthy society. People also need to believe that those rules are fair in themselves and that they really are applied equally to everyone.
Our society has done a bang-up job of making laws. We have loads of them. But we are failing to promote the underlying values that support a society ruled by law.
People at the bottom of the economic heap experience the current financial crisis and see the people at the top—the politicians and the bankers and traders on Wall Street—as living by different rules. They see people with more money getting away with enormous crimes while poor people are punished, often violently, for relatively minor crimes—like the example Horowitz gave, quoted above.
People feel that many of our laws are fundamentally unfair, that they are overly oppressive or unduly burdensome, that they invade privacy or serve only the interests of powerful individuals.
Whether those perceptions are accurate is irrelevant. If people do not believe in the rule of law, if they feel for whatever reason that they have no stake, then why should they conform to the law?
In that situation, if we simply make more laws and push for stronger enforcement, what do we accomplish? We only reinforce the perception that some people with power use it to push around others who are powerless. Even if the makers and enforcers of law have good intentions, the people who suffer the consequences will only feel, rightly or wrongly, that they have no stake in our society.
In that sense, a lot of crime may be a non-legal problem, better solved by non-legal methods. Instead of being a society of enforcers, we need to be a society of participants and stakeholders. I am convinced that the vast majority of crimes are committed by people who simply fail to assess the consequences of their actions. You can take a cynical perspective and assume that a certain percentage of people are not capable of assessing consequences and that they will always be criminals, but what does that accomplish? What possible good can that view do for society? Nevertheless, law enforcement seems to be highly favored in our society, instead non-legal approaches like developing moral reasoning and social participation.
What good are law enforcers deployed against people who do not believe in laws? After enough pounding, people may be persuaded to play along, but instead of making good citizens, we create a mass of infantilized individuals whose prime reason for following the rules is not a sense of participation or stakeholdership, but punishment avoidance. That is a society deeply psychologically damaged, robbed of its ability to give meaningful consent to its own governance, and ripe for plucking by dictatorial oppressors.
Horowitz is right that judges have stood by while police abuse citizens, often even putting the imprimatur of law and order on their heinous acts. But the problem is deeper, coming from each of us, whenever we advocate punishment over understanding, especially when we take the next step and assert that punishment is necessitated by our fellow citizens’ inability to understand or exercise sophisticated ethical reasoning. Every time someone opts for enforcement rather than communication, we weaken our society and harm all of our prospects. I have been guilty of it, too.
I don’t disagree that there is a societal problem that accompanies judicial abuse of the concept of law. And, in that sense, the judges are simply products of this society, albeit products with power.
Yet, as you (rightly) note:
“[B]efore you can have a law-abiding society, you need people who believe in laws—people who believe that standard rules, equally applicable to everyone, are the best way to maintain a healthy society. People also need to believe that those rules are fair in themselves and that they really are applied equally to everyone.”
While there are definitely unfair laws, the bigger problem is that the fair laws are ignored or treated almost as recommendations, but seldom actually enforced. I’m speaking, of course, of the Constitution. Thus, it’s difficult for people to have that faith in the law, when they see that the laws which exist to ensure fairness and justice are (mis)handled by the courts.
It’s no accident that my local paper carried a story today noting the 20th — yes, the TWENTIETH — exoneration by DNA in Dallas in just the last few years. The rules enshrined by our Founders were meant to prevent this sort of thing.
As Blackstone’s Commentaries noted just past the mid-1700s and as the United States Supreme Court more recently stated in 1970, our Founders held “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, 397 U.S. 358, 372 (U.S. 1970).
It is our courts — thus our judges — who are responsible for the actualization of this fundamental value.
Thanks for the response.
Judges’ apparent mishandling of the fair laws, like the rights guaranteed by the Constitution, may be part of the problem, but I think it is important to distinguish between two different aspects of the courts’ work that can undermine citizens’ belief in the rule of law.
If any particular outcome seems wrong or disingenuous from an analytical legal perspective, it may actually be wrong, in the sense that it ignores or misapplies controlling law. Or a series of outcomes may seem unjust after statistical analysis because they treat a particular minority differently than others. In those cases, where judges are manifestly unfair, judges ought to bear more of the blame.
But blows to public confidence in the rule of law may also arise from a general mistrust of legal analysis itself. For example, you are no doubt aware of the common complaint from those on the Right that “criminals” are too often acquitted “on a technicality.” Meanwhile, their counterparts on the Left are equally indignant when courts offer what they see as disingenuous rationales for “trampling” on “basic human rights.” Judges whose decisions receive such criticism almost certainly labor under the good faith belief that they are correctly applying or interpreting the law, but the complaints from both Left and Right have in common a sense that judges stubbornly use and misuse legal analysis to obtain outcomes they must privately know are “wrong.”
In those cases, some blame may justifiably lay with judges—good luck proving it, though—and some perhaps lies with the slowly-evolving doctrines employed by the judges. But as to public confidence in the rule of law, whether people believe that law provides the best governance, a large part of the blame must fall to our society as a whole, either for perpetuating a needlessly technical body of laws or for dumbing ourselves down until only specialists can exercise reasoned analysis, or both.
In other words, even when judges come to the substantively and justly “correct” outcomes, people on one side of the political spectrum or another will revile those judges for deploying sophisticated and disingenuous “rationalizations” to come to the conclusions they did. (Think, for example, of the outcry from some quarters over the Supreme Court’s recent holding in Boumediene v. Bush.)
In that sense, even if cases continue to be decided in exactly the same ways, there is still room for improvement of public confidence in the rule of law by promoting better public understanding of the deliberative and analytical processes of judges—even when they get things wrong.