Law puts us all in same danger as Eric Garner
On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.
Iwish this cautionwere only theoretical. It isn’t. Whatever your viewon the refusal of aNew York City grand jury to indict the police officerwhose chokehold apparently led to the death of Eric Garner, it’s useful to remember the crime that Garner is alleged to have committed: Hewas selling individual cigarettes, or loosies, in violation ofNewYork law.
The obvious racial dynamics of the case— the police officer, Daniel Pantaleo, is white; Garner was black— have sparked understandable outrage. But, at least among libertarians, so has the law that was being enforced. Wrote Nick Gillespie in the Daily Beast, “Clearly something has gone horribly wrong when aman lies dead after being confronted for selling cigarettes to willing buyers.” Republican Sen. Rand Paul of Kentucky, appearing on MSNBC, also blamed the statute: “Some politician put a tax of $5.85 on a pack of cigarettes, so they’ve driven cigarettes underground by making them so expensive.”
The problem is actually broader. 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 toomany 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. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence.
The legal scholar Douglas Husak, in his excellent 2009 book “Overcriminalization: The Limits of the Criminal Law,” points out that federal law alone includes more than 3,000 crimes, fewer than half of which are found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is — a violation of the traditional principle that the state cannot punish without fair notice.
In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.
Husak cites estimates that more than 70 percent of American adults have committed a crime that could lead to imprisonment. He quotes the legal scholarWilliam Stuntz to the effect that we are moving toward “a world in which the law on the books makes everyone a felon.”
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 howmuchwe care about it.
Well, maybe so. But making an offense criminal also means that the police will go armed to enforce it. Overcriminal- ization 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. Officials who fail to take into account the obvious fact that the laws they’re so eager to pass will be enforced at the point of a gun cannot fairly be described as public servants.