Friday, December 5, 2014

Too many laws

I haven't commented on the controversy about the death of Eric Garner primarily because, apart from agreeing that it was tragic, none of the various positions people were taking made much sense to me. Finally I came across something that did. Stephan L. Carter clerked for Thurgood Marshall and teaches law at Yale. From his "Law Puts Us All in Same Danger as Eric Garner":
.... It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. .... 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. ....

Part of the problem, Husak suggests, is the growing tendency of legislatures — including Congress — to toss in a criminal sanction at the end of countless bills on countless subjects. It’s as though making an offense criminal shows how much we care about it.

...[M]aking an offense criminal also means that the police will go armed to enforce it. Overcriminalization matters, Husak says, because the costs of facing criminal sanction are so high and because the criminal law can no longer sort out the law-abiding from the non-law-abiding. True enough. But it also matters because — as the Garner case reminds us — the police might kill you.

I don’t mean this as a criticism of cops, whose job after all is to carry out the legislative will. The criticism is of a political system that takes such bizarre delight in creating new crimes for the cops to enforce. It’s unlikely that the New York legislature, in creating the crime of selling untaxed cigarettes, imagined that anyone would die for violating it. But a wise legislator would give the matter some thought before creating a crime. ....

...[A]ctivists 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.

That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. .... [more]
An interesting coincidence: today is the anniversary of the end of Prohibition in 1933.

Law Puts Us All in Same Danger as Eric Garner - Bloomberg View