On the opening day of law school, I always counsel my first-year students never to support a law they are not willing to kill to enforce. Usually they greet this advice with something between skepticism and puzzlement, until I remind them that the police go armed to enforce the will of the state, and if you resist, they might kill you.Does that sound extreme? He reminds us that Eric Garner was killed by police trying to arrest him for selling individual cigarettes without paying the required tax. Someone thought it made sense to put a tax on the sale of "loosies" and Eric Garner died.
It’s not just cigarette tax laws that can lead to the death of those the police seek to arrest. It’s every law. Libertarians argue that we have far too many laws, and the Garner case offers evidence that they’re right. I often tell my students that there will never be a perfect technology of law enforcement, and therefore it is unavoidable that there will be situations where police err on the side of too much violence rather than too little. Better training won’t lead to perfection. But fewer laws would mean fewer opportunities for official violence to get out of hand. [My emphasis.]Anyone paying attention knows that violence at the hands of police gets out of hand far too often. If you think it couldn't happen to you, are you sure you know whether you are following the law?
The legal scholar Douglas Husak, in his excellent 2009 book “Overcriminalization: The Limits of the Criminal Law,” points out that federal law alone includes more than 3,000 crimes, fewer than half of which found in the Federal Criminal Code. The rest are scattered through other statutes. A citizen who wants to abide by the law has no quick and easy way to find out what the law actually is -- a violation of the traditional principle that the state cannot punish without fair notice.
In addition to these statutes, he writes, an astonishing 300,000 or more federal regulations may be enforceable through criminal punishment in the discretion of an administrative agency. Nobody knows the number for sure.New laws often are passed after intensive lobbying in the service of a noble cause.
Of course, activists on the right and the left tend to believe that all of their causes are of great importance. Whatever they want to ban or require, they seem unalterably persuaded that the use of state power is appropriate.
That’s too bad. Every new law requires enforcement; every act of enforcement includes the possibility of violence. There are many painful lessons to be drawn from the Garner tragedy, but one of them, sadly, is the same as the advice I give my students on the first day of classes: Don’t ever fight to make something illegal unless you’re willing to risk the lives of your fellow citizens to get your way.Laws that define crimes give the state power to send armed police after us. Once we bestow that power, it will be used.