2 September 2020

Fairness and Law Enforcement

Law enforcement happens to be a hot subject in this time, but ideas I mention here are older than dirt. While it’s fairly obvious that race affects the subject’s perception in the eyes of a police officer, I think there’s merit for a deeper discussion on the subject.

Police officers have become primary judges. Every interaction with a law enforcement agent allows for their lenience: they’re trained judges of character, and generally act according to necessity. This discretion, however, isn’t always beneficial: it allows for a difference in punishment as the officer chooses. When an officer pulls a driver over for a speeding violation, they may choose from a range of recourses, including an unofficial warning, an infraction or further investigation at the scene or at the station. This judgement is usually based on subject’s nervousness, appearance, state of mind. Other, less favourable factors, however include race, skin colour, apparent wealth, nationality, sex. Officer’s personal pet peeves, annoyances and hunches as well as their mood of the day can also affect the course of action. This is the first stage of judgement one goes through, before stepping in front of an actual judge in a courtroom. Even there, however, all the above nitpicks affect the outcome: the judges are said to trust a police officer more than the defendant, public defendants are underfunded and can’t realistically represent every person in a quality manner.

I question the fairness of this process, as it allows for unequal justice both in the streets and in the courtroom: there tends to be prejudice against minorities, while friends and police officers get away with as much as murder, as the recent events show. It’s said that police officers run on departmental quotas and there’s no question of the value of revenue from fines: the beneficiaries seem to usually be the county and the police themselves.

Many years ago, I realized why it is that all cars produced in the States don’t have built-in governors even though every state has its speed limits: one is allowed to break the law as long as it’s unseen. One can speed, do drugs, drink and drive - as long as no one notices, because if no one notices, one isn’t really harmful to society. But it’s the simpler laws, - broken license plate lights, relatively low speed limits¹, - that catch a select group of people with more violations than initially seen: poorer minorities.

One solution is execution of laws to the dot, equally against every perpetrator. If an officer spots a car exceeding the speed limit by any amount, the officer would be required to submit an infraction: they won’t sit around waiting for a cheaper car to pass with a potential for more violations. This will be absurd, the police officers will be forced to focus on useless acts. The only recourse will be to amend the law: raise the speed limit to a sensible value, allow for homelessness or spend more revenue on homeless shelters. The laws that are broken daily by most members of society will be removed to allow enforcement of more important ones at an equal rate.

Additionally, there would no longer be room to haggle with law enforcement. No longer is it possible to “get out of a ticket” at a traffic stop. There’s no reason for a police officer to be rude: he’s doing his job, giving tickets as required by the law. If both parties fully realize the inevitability of a fine or arrest, clashes should decrease. A strict execution of current laws would reduce the superset of unnecessary laws.

Don’t get me wrong, this could never work: beside the logistical impossibility of forcing law enforcement officers to act the same for every detention, they could simply avoid areas of these low-paying infractions. None of this idea can possibly work or have the suggested outcome, but one can dream.

A counter opinion by Lev G., which I have not yet formed a response to

If I understand correctly, this work posits that removing the human factor from legal enforcement would strip the capacity for racial and other biases from peace officers’ line of work. Not only would this ensure officers don’t have personal leeway in deciding how law is enforced, but it would provide transparency for the legislature to pass laws more reasonable and equitable for all. The way I see it, this is a call for a higher objectivity in social governance; removing the subjective factors of human discretion as much as possible. There is a logical appeal to this reasoning, but I believe it does not consider a malignant relationship between objectivity and power. While a stricter surveillance of peace officers would address personal biases in law enforcement, it may simultaneously empower systemic racism within the laws themselves.

If there was an omnipotent legislator who made ideal laws for all, as was conceived in Plato’s Utopia, the call for more strict application of law would certainly serve the higher good. But there is no such being, it is human relations all the way to the top. Focusing only on transgressions of the peace officers presents a mirage that above them is something besides people using force upon their discretion for some nebulous greater good. This mirage is called objectivity - that there is human relations and hard knowledge. It encourages one to strip themselves of the human factors and devote themselves to that which they believe is objective. I believe this is but a transference of power from one subjective sphere to another. Likewise, committing to strict application of law without addressing the biases within laws themselves would address one side of the problem while exacerbating another.

1. I’m no opponent of requirements for safe roads and its users: brake lights should work, speeding is bad, etc. My main point here is full enforcement of all laws when presented with all subjects. There should be no room for decision: a broken light is an automatic citation; but maybe that doesn’t mean one has to be pulled over and scrutinized for further violations: police cars already have plenty of technology to take a picture of a car, its light out, its license plate - why not mail the fix-it ticket to their home address? ↩