Shaming the Enforcers

This isn't meant as a call to action. It's just a post about how effective a certain strategy would be.

Drug prohibition is a terrible policy. It's morally atrocious, and it is enormously costly in many dimensions. Unfortunately, policy changes too slowly. Laws that would never have gotten passed today are unfortunately locked in place by a sclerotic legal system. It is hard to get legislators to actually do their job, which is to analyse policy and change the law when the analysis shows it to be a failure. But there are less formal means of effectively changing the law. Sometimes de facto law can be changed without officially changing de jure law. It's a matter of changing prevailing attitudes and official behavior. It doesn't always require passing legislation.

One possible strategy is to shame the people who are actually carrying out the orders. If policy is bad, who better to start with than the individuals who are actively carrying it out? Often times these people have broad discretion. They can simply decide not to enforce the law, or not to enforce it too thoroughly, or to allocate spending, manpower, and other resources to other problems. Even if statues officially spell out resource allocation (or have some other mechanism for ensuring that enforcement happens) there is usually enough discretion to thwart bad orders from above. I'm thinking of when Bunny Colvin on The Wire effectively legalizes drugs in his district. Police and prosecutors at every level usually have the authority to ignore "crimes" that aren't real crimes and prioritize other problems. In fact, they are constantly doing so. Read Locked In by John Pfaff for a description of how prosecutorial discretion gets used in practice. Prosecutors will often negotiate with drug dealers and other criminals, presenting them with the full range of crimes that they might possibly be charged with. If the criminal decides to cooperate, the prosecutor might eliminate some of the charges. Pfaff gives the example of "making a gun disappear", as in declining to charge a drug dealer with possession of a firearm that might trigger a multi-decade minimum sentence. As horrible as those minimum sentencing laws are, they are often not invoked, and they don't tie the hands of prosecutors as much as the letter of the law implies.

(By the way, keep this in mind when someone in law enforcement tells you that "We don't decide which laws we get to enforce." I've gotten this response once or twice during a drug policy argument. It's a disingenuous response, and it comes from people who routinely ignore illegal activities of their informants and sometimes even of their colleagues. Law enforcement is inherently about making judgment calls and using discretion. Someone who talks a scared teenager into consenting to a search and busting him for a baggie of pot is making a deliberate decision to do something harmful. A prosecutor who brings charges against a low-level drug dealer is making a deliberate decision to ruin someone's life. These people are morally responsible for their actions. I don't see how they can hide behind this "the law compels it" defense, which for obvious reasons is sometimes called The Nuremberg Defense. Anyway, it's telling that they do this rather than actually defending the policy.)

If people are deliberately doing something that is both harmful and immoral, one way of dealing with them is to make them face some kind of public censure for it. A prosecutor who brings drug charges against someone is causing harm to his community. The community should respond by lowering his status, perhaps even declaring that the public has lost confidence in him and asking for his removal. Likewise, the police officers who, for example, storm into a residence and kill the occupants in a botched raid (perhaps against innocent people not even involved in the drug trade) should be subject to public shaming for acting contrary to the public's interest.

My concern is about how effective this would be and how it might backfire. One effect of a concerted effort to shame drug warriors is that conscientious cops and prosecutors might resign and we'd be left with public servants who lack scruples or who (and this might be even worse) are zealous true believers in the crusade against drugs. Obviously that would not be the intended outcome, and we could be left with a legal system that's worse than what we currently have, because it's even more infested with bad actors. If shaming has a large effect on who decides to join law enforcement, it could be counterproductive.

Another possibility to consider is blow-back. Cops and prosecutors do a lot of useful things, obviously, like dealing with actual bad guys and real crimes. They provide a useful public service (alongside the dubious ones), so they are view sympathetically by most of the public. (Seriously, props to anyone who can walk into a domestic violence scenario, where often the perpetrator and the victim don't want him there. Taking shit from people who don't want your help is a hard job.) Consider what happens if the shaming is not done thoughtfully. If some over-zealous member of the "shame the enforcers" movement makes too-general comments about law enforcement, it makes the movement in general less credible. It's hard to tread that thin line, where you're only in favor of heaping scorn on the bad actors but still supportive of good law enforcement. People don't want to be associated with the crazy "fire all pigs/abolish the police" coalition, so they dissociate themselves from anything that looks like it. (Why is it so easy to paint people as anti-cop? To divide the world into pro- and anti-law enforcement? Why is it so difficult to stake out the position that you're in favor of good law enforcement and against bad law enforcement? If you respect an institution such as law enforcement, doesn't that mean you want to see the bad actors expelled from it?) I've seen a large sampling of the various policy ideas and sloganeering by the Black Lives Matter movement. Some of it is serious policy recommendations, and some of it is emotional, over-the top "fuck the police" posturing. My impression is that the serious policy recommendations are being discredited by loud, intemperate fools. Blow-back is real.

This is how a movement shoots itself in the foot. Some very thoughtful activists might start a campaign to write long, well-constructed opinions about the actions of prosecutors. "We thought it unfortunate that District Attorney Such-and-such decided to bring charges against So-and-so for such a minor offense. The consequences for So-and-so's family will be devastating..." It is perfectly legitimate for members of the community to judge the actions of its officials in this way. But even if this is done in the most respectful way imaginable, some message-board cowboys will re-post it and say idiotic things about tarring and feathering the officials responsible, possibly even threatening violence. (I've seen instances of this, and Radley Balko, who ran a blog about police misconduct for many years, had to scold and sometimes ban people for doing this.) And guess which one the general public is going to react to: the respectable organizer penning thoughtful op eds, or the frothing-at-the-mouth lunatic who denounces all cops? I think this requires some kind of message discipline by the organizers: "We don't associate with this. We don't advocate violent overthrow of our legal system. We strongly encourage our supporters to repudiate these comments."

Even given those caveats, I think this is worth pursuing. Public opinion is ready for it. I was encouraged by this story about a Montana jury revolting over the government's attempt to bring "penny ante pot charges" against someone. This is from Montana, hardly the tip of the spear on pot legalization, and the story is from 2010. Attitudes toward pot legalization have become more favorable in the (very few!) years since. Even if people are nominally/culturally "against pot", most people see the official actions to actually enforce the law as unfair or wasteful. I think this is why public shaming has to be part of the equation. People give different answers to the "legalization" question when it's presented as an abstract matter of public policy versus when an actual human being is being set upon by the state. People are often disturbed by the actual tactics, the violent raids and underhanded tricks and borderline entrapment, required to actually enforce drug laws. (Tellingly, prosecutors and judges often conspire to prevent the defense from informing the jury of certain facts, like that the defendant was in compliance with state law or that the defendant faces a multi-decade sentence if convicted. Jury Nullification defenses, which inform the jury that they can vote for acquittal if the law is unconscionable, are usually prohibited by the judge. The state tries very hard to prevent human compassion from in any way affecting these cases.)

Maybe what I'm describing here isn't even a "public shaming campaign." Maybe it's simply a policy of better transparency. The community should know if its local police officers are busting kids for pot possession. The community should know if its the local prosecutor is bringing charges and triggering decades-long sentences for drug offenses. Such a community might fee like its tax dollars and law enforcement resources are being squandered or misused. It might decide that officially charging someone with a crime (versus ignoring them or simply confiscating the contraband and sending them on their way) is a waste of the community's resources. There's no need to be an absolute dick about it, and there's no need for neighbors to denounce each other. Let's just put it out in the open that we're doing these things. We are severely inconveniencing innocent motorists, even more severely inconveniencing "guilty" motorists, and destroying the lives of accused dealers. It seems like we should know the names of individuals in our community who are involved in these decisions, and maybe render a verdict on whether or not it's appropriate. Say, a constant news ticker of pointless possession arrests, or a frequently updated database of who brought charges against whom for what; these things might allow a community to better judge its public officials and realign local governments to reflect their true core values. If someone is doing tremendous harm in your name, using your tax dollars, it seems like you should have a say in whether or not that's appropriate.