The Law for Law Enforcement

Measuring the ideal punishment for a criminal is an arbitrary, subjective task. On the one hand, we want to deter those prone to wanton acts of theft and violence from committing them. On the other, there must both be a sense of the financial cost in imprisoning someone and a sense of mercy. However, if we want to avoid such subjective weighting, public officials could set the cost imposed on a criminal to be equal to the cost imposed on society by the crime.

A rubric that only charges the criminal the hard costs of a crime may be construed as unjustifiable since it implies that the “efficient” level of crime in a perfectly managed society is not zero. If it is determined that the cost of a husband punching his wife is $3,000, he may feel free to do so if it is worth more to him than that punishment. In that approach, the government treats crime as it would an externality; such a legal viewpoint implies a certain level of domestic violence is just, as in the case of pollution. Most moralists would consider that paradigm of public policy absolutely reprehensible, since no one deserves to be attacked in an absolute sense. Society must deter criminals in the strongest terms possible while keeping notions of mercy and cost of punishment in that back of its collective mind. Nonetheless, it remains instructive to keep considerations of what truly is “quantitatively”-I smirk at calling it that due to the vast assumptions that must be made to come to such a number- to bring perspective and cleanse the palette of excessively emotional moralizing.

The utility-maximizing punishment would be,

(pure cost imposed on society by crime + implicit cost of police and judicial system) / (percentage chance perpetrator is successfully prosecuted in similar crimes)

Unless we have special circumstance, it is hardly simple to measure any of these variables. The “model” quickly breaks if we introduce it murder, which in many cases would require society to kill a criminal more than once? What does that constitute? Torturing the perpetrator and later killing him? How long should a murderer be tortured before we kill him if he kills two people? Three? Measuring the costs society should charge the criminal requires a cosmic omniscience and unthinkable knowledge in calculating the value of a life against pain against money against imprisonment.

A special circumstance, where such measurement is almost feasible, is corruption of law enforcement.

We know exactly the societal cost of a cop or prosecutor who manufactures evidence to put someone in prison for 25 years: 25 years in prison. Even if OJ was guilty, the fact that evidence may have been created to frame him should put the officers and detectives behind bars for a very long time, not fourth estate posturing about racism. This should not illicit any catcalls citing the difficult and important job law enforcement has in protecting society; we’re talking strictly about times when an officer or prosecutor has smeared the truth beyond reproach and reasonable doubt. Alan Gell famously was put on death row until it became clear on appeal that law enforcement withheld evidence to secure a conviction. Should those officers and prosecutors be given a slap on the wrist for what is literally attempted murder?

Police officers seemingly feel free to speed and drive aggressively even when they are not en route to an emergency. A flash of the badge has gotten many an officer off from a speeding ticket or DUI. Why do we let this happen, with no more than occasionally remarking, “cops are jerks”? Regardless of whether or not the fine for running a red light (or a yellow one) accurately reflects either the society costs or cosmic truth, the position of a cop puts her in such a situation that the punishment for the failure to similarly adhere to the rules of society must be higher. Non-trivially higher. I propose that the punishment for all traffic violations must be tripled for law enforcement. If a private citizen pays $200, the officer pays $600. If the private citizen loses his license for four months, the officers loses hers for a year. Furthermore, these punishments must be identically levied against any officer who demonstratively turned a blind eye to the crimes of other officers. The societal cost is the same.

For all the ranting performed by the ACLU in the name of the accused, it stands to far more reason to give personal disincentives to the prosecution for doing anything but seeking the truth. Retroactively throwing out evidence in the name of the Constitution only confounds evidence in general. By deterring officers from abusively using their powers through incentives, we accomplish 80% of the effect with 20% of the effort and without needing invoke a newly coined civil right. We shouldn’t care nearly about the rights of the perpetrators as those of the truly falsely accused.

If we transfer this thinking back into the real world where we use the justice system to deter the impedance of rights rather than utility maximization, little has changed. Unreasonably taking away 25 years of someone’s life is just as wrong, if not more wrong, cosmically, as it is from the perspective of general welfare. An officer willfully allowing another officer to drive home at .11 is akin to becoming an accessory to the DUI. Cosmically just punishments are generally next to impossible to ascertain. Moralists and much of society may become disgusted at the notion that a husband should be able to write a check for $3,000 whenever he feels like pushing his wife down a flight of stairs.

Yet, our disgust is purely emotion and non-evidentiary. In comparison, the costs imposed on society by corrupt cops and prosecuters have a clear shape. Their coverups, whether in looking the other way on a DUI or manufacturing evidence, possess a clear lower bound, societal cost. There’s no need for this lower bound to be a hard one; juries and judges may introduce wiggle room when exigent circumstances present themselves. Still, these unmitigated costs imposed by the police and prosecutors upon the unjustly accused or society must form the basis on how society in turn prosecutes them, rather than an oft-ignore footnote of tertiary priority.