All Commentary
Monday, March 16, 2015

Effecting Change Outside the Law

4 things more important than the written code

What change do you want to see in the world? Maybe you want marijuana to be legal. Or you want to curtail police brutality.  Or perhaps you want to reduce the racial disparity in prisons.

One way to effect these changes is to get the law amended on paper. To do that, you’ll need a bill, a committee, a vote, and a signature — not to mention time and toil. In 2012, candidates and interest groups spent nearly $4 billion influencing congressional elections. And that’s only at the federal level.

What a waste of time and money.

The focus on legislation belies how justice — particularly criminal justice — actually works. Codified law is one small cog in a giant machine. Discretionary application of statutes, regulations, and judicial opinions determines so much more than written words. Even within the legal system, individual choice and action rule the day.

You see, the written law barely matters. It’s just words on a page. If you want to change something in society, focus on influencing the cogs that matter. Here are four of them:

1. Police

A law means nothing if it’s not enforced. Police departments have limited resources. They must prioritize. In practice, they enforce some laws with an iron fist, and they completely ignore others. Hopefully, they pay more attention to dead bodies than to doobies. But often their incentives are just the opposite.

Police officers need “reasonable suspicion” to stop you and “probable cause” to arrest you, both of which are very low standards. Yet, even if there is probable cause to make an arrest, an officer does not have to act on it.

Discretion allows traffic cops, for example, to issue a warning instead of a citation. And nobody (except maybe dairy farmers) wants cops arresting restaurateurs for not serving margarine just because the legislature says margarine is mandatory. Theoretically, officers are able to examine a situation and forego using the arrest power unless absolutely necessary.

If exercised diligently, discretion enables police to improve relationships with communities. As University of Wisconsin Law School professor emeritus Herman Goldstein observed in 1963,

Police officials too often fail to recognize that there are many in the communities which they serve who have an inherent distaste for authority — and especially police authority.… It behooves law enforcement officials to refrain from unnecessarily creating a situation which annoys such individuals.

The limited exceptions to discretion demonstrate its importance. For example, some states mandate an arrest for domestic violence calls. The complicated nature of such situations often leads to dual arrests, which leaves children without their parents. Mandatory arrests disempower victims by revoking choice. In general, they promote an overreliance on criminal problem-solving strategies by precluding other means of conflict resolution.

By the way, police officers don’t actually need to know the law. The Supreme Court’s 2014 ruling in Heien v. North Carolina confirmed that when stopping or arresting someone, officers are allowed to make “reasonable” mistakes about the law. For better or worse, the law on the streets amounts to what an officer reasonably believes it is, not what it actually is on paper.

After making an arrest, police have further discretion. They can release you. They can refer your case to a district attorney. Sometimes they can refer your case to a city attorney to prosecute it as a civil ordinance violation. That means no criminal record and no threat of jail time — just a fine.

2. District attorneys

District attorneys don’t do anything until the police send the accused their way. Without a referral, a DA probably won’t even know anything happened. Even when the police do refer a case, the DA often tosses it out.

DAs have full discretion over which “perps” to prosecute and which to completely ignore. They also have discretionary power over what charge to bring against the accused. A DA can legally charge any version of an offense for which probable cause exists — from an aggravated felony to a minor misdemeanor.

The charging decision depends on multiple factors. First, resource restraints require DAs to make conscious decisions about what cases are economically worth pursuing. Second, political pressure forces elected DAs to be “tough” on certain crimes — which means being lenient on others. Third, a particular DA may have a moral or ethical reason for forgoing charges.

3. Juries

The vast majority of criminal cases end in plea deals. But in the statistically rare cases in which juries are actually empaneled, they obviously matter a lot.

A jury can convict you if it finds guilt beyond a reasonable doubt on every element of a charged offense. Stated differently, if all 12 jurors agree that there is legally sufficient evidence to find a defendant guilty, they can convict him.

But they don’t have to.

That’s because juries have the implicit power to nullify unjust laws. Even if there is enough evidence to find guilt beyond a reasonable doubt, a jury can still choose to acquit. Over time, repeated jury nullifications can lead to the de facto repeal of a law. On the eve of the Civil War, juries repeatedly practiced nullification in protest of the Fugitive Slave Act. For example, juries refused to convict runaway slaves in the Shadrach Rescue Cases, which the late Penn State York scholar Gary Collison credits with ruining Daniel Webster’s presidential aspirations.

However, the state does everything it can to prevent juries from exercising their right to judge the law itself in addition to the facts of the case. Judges have no obligation to inform jurors about their nullification powers, and they don't. Defense attorneys are prohibited from informing jurors about nullification in the courtroom. Still, if a juror already understands the theory and legal status of jury nullification before entering the courtroom, he or she can be a powerful agent of social change.

4. Judges

After conviction come the consequences — both legal and collateral. Legal consequences of criminal conviction often include a fine, a term of imprisonment (probation or incarceration), or both. Depending on the crime, collateral consequences may include difficulty getting a job, loss of voting rights, ineligibility for welfare benefits, and deportation.

Except for a few mandatory minimum-sentencing schemes, judges retain discretion over sentencing, especially in state courts. In Wisconsin, for example, a person convicted of second-offense marijuana possession faces up to a $10,000 fine, 3.5 years imprisonment, or both. More serious felonies have an upper range of several decades. However, a judge can mete out a much lighter sentence. In many cases, regardless of the jury’s decision, the judge decides whether a man will be able to raise his infant son — or never again take a free breath.

What it means

On one hand, realizing that the law doesn’t matter can be frightening. So much time, money, and hot air went into debating it and writing it. Was it all for nothing?

On the other hand, it can be liberating. Society isn’t governed by laws. It’s regulated by individual human beings making conscious decisions. As always, human actions dwarf inanimate words.

Most importantly, it means that changing society — however you envision such change — isn’t necessarily about revising the written law. More often than not, legislation is probably the least effective (and least efficient) option. Instead, focus on the actions of individuals: police officers, attorneys, judges, jurors, or anyone else. In the end, one liberty-minded DA can be worth an entire chamber of libertarian legislators. Department hiring practices can alter police conduct more than reactionary judicial decrees. Better yet, an educated jury pool can cast a bad law into oblivion.

Laws don't need to be changed for us to change the world.