Do We Really Want Perfect Law Enforcement?
posted by Daniel Solove
I just wrote a post about the possibility of cell phones being used to nab speeders. This raises a larger question regarding law enforcement. If we employ new technologies of surveillance to achieve a more efficient enforcement of various laws, the most obvious concern that comes to mind is the threat posed to privacy. There’s also another problem worth thinking about – Is it desirable to have very efficient enforcement of certain laws?
Of course, we’d want as perfect enforcement as we could get when it came to crimes such as murder and kidnapping. But what about speeding?
Consider what happened in 2000, when the Hawaii transportation department began using cameras mounted on vans to catch speeders. Tickets were issued for all drivers exceeding the speed limit by six miles per hour. The program resulted in an enormous public outcry. As one journalist observed, “it became possibly the most hated public policy initiative in Hawaii history, almost uniformly disliked, even by those who thought it actually worked.” Mike Leidemann, Few Saying Aloha to Van Cams Fondly, Honolulu Advisor, Apr. 14, 2002. Some drivers referred to the vans as “talivans” and radio stations broadcast their location.
In 2002, the program was cancelled. Where the cameras were used, traffic accidents and fatalities were down significantly. [In a recent post, however, I discuss a study of DC traffic cameras that reveals the opposite conclusion – that traffic cameras had no effects on accident or fatality rates.]
So why was there such a public outcry against the program?
My hypothesis is that the outrage stemmed from the impersonality of the system as well as its profound efficiency. The system was exercised to enforce rules that many people frequently violated. The automated and perfected enforcement of the law, even a law generally viewed as justified and important, was experienced as overly oppressive. People were too tightly controlled, which created a sense of excessive state paternalism that led to rebellion and resentment.
I believe that people have ambivalent views toward many laws, such as speeding laws. They generally support the laws, but they often violate them. For example, would society really want perfect enforcement of the drug laws? Imagine if everybody who did drugs at one point in their lives were caught. This could nab quite a lot of people, including many corporate CEOs, politicians, and probably every celebrity.
What about perfect enforcement of underage drinking laws? Probably the majority of the population has at one time during their childhood engaged in underage drinking. And quite a lot of adults have furnished alcohol to a minor at one point in time.
So perhaps we don’t want to enforce these laws perfectly. Yet, doesn’t imperfect enforcement unfairly penalize the unlucky few who get caught? Indeed, prior drug use can disqualify people for certain jobs, such as the FBI (which is considering rethinking some of its policies). Underage drinking violations can appear on a person’s record. Should these stains on people’s records be put there haphazardly? After all, if many people are guilty of these things, why should only the unlucky few who get caught be punished?
The same goes for speeding. If many people speed but only a fraction are caught, shouldn’t we desire better enforcement of the law rather than arbitrarily penalizing the unlucky few who get caught?
Also, more automated and efficient law enforcement might eliminate prejudice and bias. This could cut down on the over-enforcement of traffic laws against minorities, such as the phenomenon dubbed “driving while black.”
I haven’t worked out the answers just yet, but I find the issue quite intriguing.
October 12, 2005 at 12:15 am
Posted in: Criminal Law, Privacy, Privacy (Law Enforcement)
Print This Post
Responses (5)
Ralf Grötker - October 12, 2005 at 5:11 am
Two more general points:
* Too strict enforcement violates our moral self-esteem: We somehow want to be free to brake the rules – even if we don’t intend to do so. Automated law enforcement comes up to treating citizens as criminals of the sort which can’t be reached by moral reasoning. Brute force is the only means to deal with them. – This isn’t exactly the way we want to live.
* Too strict enforcement is probably not the best modell, economically – compared to cooperation out of free choice.
Cf., e.g., experimental psychology by Ernst Fehr and Simon Gächter: Fairness and Retaliation: The Economics of Reciprocity, in: Journal of Economic Perspectives, 14 (2000), S. 159-181. http://www.iew.unizh.ch/wp/iewwp040.pdf
Ralf
Mike - October 12, 2005 at 11:13 am
I think all of us would like perfect enforcement of rape, murder, child molestation, kidnapping, and robbery. Most of us don’t care to have speeding laws enforced at all (except against that jag off going going 90 miles). The same could be said of seatbelt laws. In my native state, police could ticket a person for not wearing a seat belt, but failure to wear a seat belt did not give the cop cause to pull over the vehicle. When the law changed, allowing the seat belt omission to serve as a basis for the stop (thus allowing more efficient enforcement), people were outraged.
Anyhow, I think there is a mala prohibita-malum in se dichotomy. Most people hate the stupid/nanny state laws, and would not like to see them enforced at all, let alone frequently. But we’re too lazy to vote people out of office for enacting, say, a mandatory seat belt law. We thus live in under a system of laws where we frequently break laws that should never have been laws.
Bruce - October 12, 2005 at 1:51 pm
I’ve been interested in this issue ever since reading Mike Adler’s note, Cyberspace, General Searches, and Digital Contraband: The Fourth
Amendment and the Net-Wide Search, 105 Yale L.J. 1093 (1996). I think part of what drives our intuitions here is that most laws are drafted broadly because they assume some amount of non-enforcement due to the costs of detection and enforcement. Lower those costs, and the laws start to look unjustly strict. E.g., speed limits. Aside from a few Stakhanovites, no one — literally, no one — obeys speed limits. With perfect enforcement, we would all be slowed a good 10-15 mph in our daily commutes. Or check out this article concerning “zero tolerance” for blood alcohol levels in D.C.
Randy Hurst - October 12, 2005 at 4:44 pm
Two thoughts: One: we have a 2- (or possibly 3- or 4-) tiered system of laws. Those that we all agree should be strictly enforced and those that serve more as guidelines. I think most would agree that we need speed limits as guides for what is a safe speed. If you’re new to the area, the speed limit tells you what’s generally expected. 25 means slow down to 35, 65 means 75′s OK. No one expects strict enforcement, but we do know what’s expected. But which laws fit which category changes. Used to be everyone stopped for red lights; now it’s common for 1 or 2 cars to go thru after the lite turns red. Becoming more like a guideline than a rule. (Is this a result of the rise of situational ethics in the late 20th Century?)
Two: We will tolerate limited strict enforcement. Speed traps are OK, as long as they’re not everywhere, everyday. They serve to keep us within the tolerable limits. And the rest of us are glad when they catch that Jag doing 95: he’s outside the guidelines.
Privacy and Security Law Blog - October 17, 2005 at 3:46 pm
The Two (Cell) Towers Revisited
Posted by K.M. Das In the largest such project in the world, the Missouri Department of Transportation (“MODOT”) is in talks with Delcan.NET to implement a statewide traffic monitoring system based on tracking cell phones. The basic idea behind the…
Leave a Reply