Jurisprudence

Some Laws Shouldn’t Be Enforced

A former police chief makes a philosophical case for treating crimes like trespassing and drug use differently.

A police officer gripping his duty belt, which has handcuffs hanging off of it
Jacky Lam/Unsplash

Brandon del Pozo was a police officer for 23 years, first with the New York Police Department, then as chief of police of Burlington, Vermont. He also has a Ph.D. in philosophy. On a recent episode of Hi-Phi Nation, I talked to him about police discretion in the use of force and how to distinguish between law enforcement for enforcement’s sake and law enforcement for the public good. An excerpt of the episode, condensed and edited for clarity, is transcribed below.

Brandon del Pozo: Most of the low-level offenses that police enforce have no inherent moral content unless there’s a specific context to them, like simply smoking some marijuana, ingesting cocaine, drinking alcohol, marching in the street and blocking traffic, running a stop sign, a lot of traffic law. It’s not malum in se. It’s wrong because there’s a law against it. But the whole point of that law is to promote the type of cooperation that allows the community to flourish and sometimes be safe too.

Barry Lam: Police discretion refers to the power of the police to decide whether and how to enforce malum prohibitum crimes in a given context. If there’s a violation of a traffic law, does a cop stop or let a person go? Give them a ticket or just a warning? Go through with a search or make an arrest, or just let it go even if they have probable cause? Police do not have discretion for all laws. They do not, and ought not, have discretion for malum in se crimes—those crimes that pass the Batman test. Police have a duty to intervene, investigate, and prosecute individuals for those. But this isn’t unique to police in our society—it’s true of police in any society. And if you think about it, it might actually be true of all people in society. These crimes are just the egregious moral wrongs that we all have an obligation to refrain from doing and stop others from committing, when we can do it safely.

One interesting assumption that del Pozo disabused me of is the assumption that police have a monopoly on violence. It’s not true. We’re allowed to intervene, even use violence, to save a child from being beaten, tackle someone who just robbed your mother, or chase down someone who just stole your car. It might be stupid, but it’s neither immoral nor illegal. Police only differ from citizens for malum in se crimes in that they’re required to enforce them.

But for mala prohibita crime, police always have a choice. Not just because there are too many of these laws and it’s impossible to enforce all of them. It’s because the goal of these laws is to solve nonmoral problems—like how do you get everyone to drive on one side of the road or go through an intersection without crashing? These are laws trying to get people to cooperate and coordinate when they’re in a public space. When a police officer encounters someone who violates one of these laws against cooperation, enforcing the law means using force to make people cooperate. Del Pozo thinks police should always have an option not to use that force, if they can get the cooperation in a better way.

Del Pozo: I think it’s important in a liberal democracy that we have police discretion, because we’d rather broker than enforce the terms of cooperation in our society.

Lam: Brokering here means negotiating, bargaining, diplomacy; whereas enforcement means tickets, arrest, jail cells.

Del Pozo: When you enforce cooperation, No. 1, it’s punitive. And No. 2, there’s always a worry that you’re gonna squash pluralism or chill people’s desire to pursue a particular conception of the good. When you broker it, you’re really fostering the ideas of fairness and reciprocity. And part of brokering is the thought that it’s not only going to be a one-way brokerage the whole time, that there are times where other uses of space will prevail. And I think that’s what you want to foster in a democracy, and police discretion, when it’s done well, has a hand in that.

Lam: Police discretion is about choice. And when there is a choice, there’s got to be a way to evaluate whether people have made a good or bad choice, a just or unjust choice. Del Pozo’s thinking draws heavily on John Rawls, whose theory of justice might very well be the most influential text in American political philosophy of the 20th century. Rawlsianism is known for its spirited formulation of what justice requires under liberalism or liberal democracy. But Rawls doesn’t talk much about policing. Del Pozo fills in those gaps.

So the starting point is liberal democracy. Talk a little bit about what that means.

Del Pozo: Liberal doesn’t mean liberal versus conservative. No. 1, just take the idea of democracy and bracket it off. We’ve got these representative bodies that we elect, we have control over whether they’re an office or not. The elections are basically fair. The liberalism part is just this idea that there is a real inherent tension in people’s life plans, conceptions of the good. There’s one guy who might be a Buddhist, one guy a Muslim, one guy a Jew, a Christian—different views about whether certain institutions should be public or private. There’s enough heterogeneity that you don’t make presumptions about what ought to prevail.

Lam: So you don’t mean the opposite of a police state, liberal democracy? You mean a democracy that is diverse?

Del Pozo: Not just diverse in a way where the government is like, How do we rein this diversity in? but there’s a commitment to the pluralism. To me, liberalism and pluralism are closely related.

Lam: The two commitments—that malum prohibitum crimes are not intrinsic wrongs and therefore it’s OK to enforce them selectively, and the commitment to a liberal democracy—together they generate a test for del Pozo as to how an officer, how an entire police department, ought to exercise their discretion. It’s called the test of public reason: In effect, is a particular exercise of discretion consistent with the interest of a liberal democracy? Does it advance pluralism, and does it treat members of the pluralistic society as free and equal? No policy that fails the test should be acted on, even if it’s part of the law.

The Philadelphia Starbucks case is a test case for you. Describe what you saw in that case.

Del Pozo: The police got a call from the manager of the Starbucks that there were two men in the Starbucks who were trespassing.

Lam: These were two black men.

Del Pozo: They were sitting there and not buying anything. There was a policy at the Starbucks that you need to be a paying customer to use the seats. There’s also a law in Philadelphia [that] if a manager revokes your permission to be there, you’re trespassing. That’s clear, and I think that’s a fine law. The cops try to bargain, they negotiate, they explain. The guys are like, “We’re not leaving. We’re not buying anything, but we’re not leaving.” And the cops said, “Well, we have a trespass law. We’re enforcing it.” They arrest them.

Lam: It started Starbucks on sensitivity training, stuff like that.

Del Pozo: Yeah, soul-searching for the juggernaut.

Lam: And what you think ought to be the response, when suitably informed by the relevant political philosophy, is different. So I want you to talk through how you think the right response should be.

Del Pozo: The reason can’t just be, “Here’s a statute and someone’s making a statement and they’re a manager and you violate the statute. I’m arresting you.” I think that’s exactly why people were so angry—because that facially meets the standards of the law, but it defies public reason. “You have violated the trespass law and we’re hauling you out of the Starbucks in handcuffs” is a reason that does not treat those two men as equals in America. Because Rittenhouse Square is a wealthy neighborhood. And I guarantee you if there was a man or woman who lived in a condo or co-op or apartment in Rittenhouse Square, and they were down there—white, wealthy person under the same circumstances—they would not have had the trespass laws invoked against them.

Lam: For del Pozo, it fails Rawls’ test of public reason, when police discretionary decisions apply differently to different social groups.

Del Pozo: I don’t think that the use of government coercion in the Starbucks case was justified by a reason that treated those men as equals. And I think that’s what enraged America. They didn’t exactly articulate it in Rawlsian terms, but that’s what upset everyone.

Lam: “It’s the law and I enforce it,” as a justification given by a police officer, is not enough justification for you.

Del Pozo: No. Considering that we definitely build discretion into laws, I think it’s not enough justification. I think we have to show the state interest. What is the state interest in enforcing that trespass law? And, even more so, when it clearly does so in a way that it reinforces the idea that those two black men were not equals to other citizens who would never have had the police called on them? It’s not in the best interests of the liberal democracy, period.

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