The Rise of Total Enforcement

Ars Technica has a long article on red-light cameras, which is to say the automated cameras in intersections that take photos of people running red lights for later ticketing.  Red light cameras are a perfect storm of topics that interest Sandor at the Zoo, and we’ve talked about them before, in much the same way that Ars is — that is, red light cameras are a revenue-generating device.  But they’re also on the vanguard of the demise of Security through Banality, and that’s what I’d like to talk through here.

From the Ars article, here’s the relevant section:

Those who object to the cameras don’t do so solely on the grounds of an unproven safety record.Woodrow Hartzog, a law professor at the Cumberland School of Law at Samford University, haswritten extensively on robotics and the law. He told Ars that one of the reasons people don’t like red light cameras is because the system “makes the entire process less transparent.”

Prosecutorial and police discretion are important, Hartzog adds. While lots of laws are on the books, every citizen knows that they are not always enforced equally—or at all. Local law enforcement has the discretion to enforce the law based on severity, timeliness, and resource priority. Cops generally prioritize more serious crimes (violent crimes) over petty ones (jaywalking), though both remain illegal.

“There’s this explicit or implicit sorting that goes on, and RLC removes that by automating it all,” Hartzog said. “The officer only ditches cases if the evidence isn’t sufficient to establish a violation. Ostensibly RLC perfectly enforces the law—but we argue that the law is not meant to be perfectly enforced. At a more basic level I feel that society has a general agreement that not all traffic laws need to be followed 100 percent of the time—I don’t think that laws are created with that in mind.”

Hartzog is both correct and incorrect.  It is absolutely the case that the law was never created to be perfectly enforced, and we should recognize it.  The people who put those traffic laws on the books never intended for them to be universally applied, and indeed probably didn’t even give any thought to a world in which it would be possible for them to be universally applied.

On the other hand, police and prosecutorial discretion are terrible.  They’re like highways for every ugly impulse humanity has to travel swiftly and unmolested down to their victims.  They create a two-tier justice system, in which it’s not only possible for the privileged to ignore laws, but expected for them to do so.  Look, our President, and indeed basically every other candidate for high office in the last few years, has admitted cocaine possession.  This is a felony, punishable by prison.  Obama had no chance of doing anything like that penalty for mere possession — indeed, the majority of people who are caught with small amounts of illegal drugs are not subject to the full penalty under the law.  But some people are!  And some people are bullied by the threat of the full penalty into other behavior, ranging all the way from arguable social goods like snitching on their drug dealer to utterly reprehensible behavior like coerced sexual favors to the police.

And this kind of behavior is invisible to the complacent majority, who are secure in the (correct) presumption that that’s now how it works (for them).  It’s hard for people who aren’t subject to this kind of behavior to believe that someone else might be subject to legal harassment like asset forfeiture.

Universal enforcement is a social good.  It removes the tiers of the justice system and does not allow the majority to ignore injustices to the vulnerable minority.  But it is true that the laws were never meant to be universally enforced, and they should be reformed as we move to a doctrine of total enforcement.

We don’t need to let the perfect be the enemy of the good, here.  We can do things like say, “Rolling right turns on reds are punishable by $50 fines, blowing through the intersection is punishable by $300 fines,” or whatever.  When automated speeding detection is put into place (as it already has been in France), we can increase the speed limits to the realistic speeds that people actually drive, not the polite fiction that our speed limits are today.

When there’s one law that applies to all, we create a powerful pressure to align our laws with reality.  That’s only to the good.

Edit:  Apropos of this post, we have an interesting article on the Atlantic by a former prosecutor who committed a crime in order to see the justice system from the other side.

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