Why ‘Enforcing’ the Law is Not the Same as Doing Justice

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Photo by D.C. Atty via Flickr

“Law enforcement” was never meant to be a moniker.

After all, it is just one possible response in a toolkit full of them for our public safety officials.

The fact that “LEO” (law enforcement officer) is now synonymous with “peace/police officer” highlights a disturbing transformation: Law enforcement has moved from a means to an end—public safety—into an end in and of itself.

And we bear the costs of this shift every day in our heavy-handed approach to policing and prosecution.

Calling police officers, prosecutors and other officials charged with keeping us all safe “law enforcement” may seem relatively innocuous. They do, of course, enforce the law.

Arthur Rizer

Arthur Rizer

But it actually reveals something very important about how we think about these roles.

We could just as easily label the group based on its duty to help individuals in need or keep the community safe. Instead, we elevate enforcement above all of these other job functions and responsibilities.

Consequently, law enforcement can change from something that these officials “do” into their professional identity. Once you identify as a person who does law enforcement, declining to enforce a law in any particular instance can start to sound antithetical to who you are.

Reforms that aim to find alternatives to enforcement look like a threat to the profession itself, somewhat akin to asking teachers not to teach.

A mindset in which enforcement is first and foremost is dangerous. There are so many criminal offenses that we are practically all lawbreakers of one form or another. The criminal justice system can ensnare as many people as police officers and prosecutors choose to—an issue that communities of color and the poor know all too well.

So long as we condition these officials to view enforcement as the default response and a positive result in its own right, unnecessary arrests and mass incarceration are inevitable.

Enforcement dominates our policies and practices as surely as it does our rhetoric. Simply consider the fact that it took Good Samaritan laws to prohibit the arrest and prosecution of individuals suffering from a drug overdose.

Let that sink in.

Someone may be literally dying, yet a state law was nevertheless necessary to ensure that our public safety professionals do not choose the enforcement of a misdemeanor over a purely public health response.

Then again, at times the law itself is the problem, standing in the way of alternatives to arrest or prosecution. Citations in lieu of arrest, for example, allow for essentially an “enforcement-plus” approach—an enforcement response that still allows for diversion, treatment or some other option to coexist alongside it.

But while citations are increasingly common for low level misdemeanors, state law in most places still prevents their use in felony and even many misdemeanor cases.

Prosecutors perpetuate and aggravate over-enforcement by commonly viewing charging decisions as a solely legal question rather than one of individual and community well-being. All too often they ask only whether there is probable cause to charge, not good cause. And even there, the law has made its own enforcement just a little too easy.

Probable cause is one of the lowest evidentiary thresholds we have, an exceedingly low bar for upending a life.

We have further exacerbated the consequences of this enforcement regime by undermining all manners of mental health, substance abuse and financial supports over the last few decades and forcing the criminal justice system to fill the void. We have in effect told police officers and prosecutors to be jacks-of-all-trades, but then only trained them for one: law enforcement.

It should not come as a surprise that arrests and convictions are so often the inadequate tool of choice used to address noncriminal social ills.

Lars Trautman

Lars Trautman

Reversing this trend will require collective effort. For their part, police officers and prosecutors must develop additional diversion programs and other alternatives to the criminal justice system, and then exercise their considerable discretion to use them as frequently as possible.

Legislators need to shift the burden of responding to more noncriminal matters to other professionals and ensure that public safety officials are not limited to only criminal enforcement authorities when they do have to respond to one of these emergencies.

One of the silver linings to emerge from the current parade of criminal justice tragedies is a renewed focus on how we can reimagine public safety and law enforcement in this country. In this new vision, “law enforcement” should call to mind a practice, not a profession.

Only then are we likely to have a system of public safety that understands the law is there to serve people rather than the other way around.

Lars Trautman is a Senior Fellow of Criminal Justice and Civil Liberties Policy at the R Street Institute and a former assistant district attorney. Arthur Rizer is the Director of Criminal Justice and Civil Liberties Policy at the R Street Institute. Arthur is also an Adjunct Professor at Antonin Scalia Law School, GMU and a former police officer and federal prosecutor.

3 thoughts on “Why ‘Enforcing’ the Law is Not the Same as Doing Justice

  1. Are you kidding, here?

    Of course the role of the police is to enforce the law, perhaps that’s their primary role. They don’t make the laws, and their ability to develop diversion programs is limited.

    Their job has been overburdened with work, with jobs, that they’re untrained, and in some cases, unqualified for. That’s not their fault, not completely.

    Many a police chief and Sheriff have raised these questions to no avail.

    The authors here seem to be adding more work to the police, again, work that is not in their wheelhouse. As for diversion, we have no idea how many are diverted by the police. As one, I can tell you more are diverted, not cited, not jailed, than are.

    And the reality still remains, whether white or not, male or female, young or old, if you do not want to deal with the police, and run the risk of being incarcerated, DO NOT DO CRIME.

    It is that simple. Always.

    • Tell that to James King, a man innocent of any crime and yet the police charged him with three felonies. He refused to plea bargain because he was innocent. The jury acquited him in 10 minutes and were outraged that he was charged at all.

  2. You know how police officers get promoted? By arresting a lot of people. Even if the charges are thrown out the officer still gets credit for the arrest. Combine that with the police practice of telling lies like normal humans breathe and you have the perfect recipe for institutional corruption, a dish the American people have to eat every single day. That is, of course, if the cops don’t kill you first for “failing to comply” or “interfering with governmental operations”

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