The creation of new laws is often treated like it’s the safe option to protect society. But it is not perfectly safe. We risk exposing our fellow citizens to state violence every time we pass a law, no matter how small or petty. In this way, every crime is punishable by death. This is not hyperbole. In fact, it’s even too soft; technically, any inference of crime is punishable by death. As a result, it is necessary to ask ourselves when we consider creating a new law: Is this worth the risk that someone gets punished for this infraction with death?
It sounds absurd, of course, like one of those thought experiments conspiracy theorists proffer up to justify their beliefs, to the dismay and confusion of the general public. But this isn’t an exaggeration or a hypothetical, or a conspiracy theory, unfortunately. In the real world, right now, 2020, every single crime, everywhere, is punishable by death.
Whether this is right or not isn’t the point. Here, I’m just going to show you why it’s true, because it matters every time we pass a law, or call the police for that matter. A necessary question that we never ask ourselves is: “Am I ok with this person I’m calling the police on dying because of that?”
Let’s start with the basics. What is a law, and how is it enforced? Simply, a law is a rule in our society (usually restrictive, e.g., you can’t shoot people). Laws are enforced by the state and its agencies. To enforce those laws effectively and be a credible enforcer, the state needs to maintain its monopoly on violence. This isn’t just that the state has overwhelmingly more resources to commit violence (i.e., police officers, weapons, the military, etc.) but that they also maintain a claim to the authority to commit violence. That is to say, in most societies, by and large the state has the right to use violence and citizens do not.
Violence can take a lot of forms, of course: from getting beaten with a nightstick to subdue you before you’re handcuffed to getting a fine in the mail after a traffic cam caught you running a red light. Exceptions go both ways, but they are exceptions: For them to be accepted, you need to show that the state didn’t have the right to use violence in a particular case, and that a civilian did.
In order to enforce laws, the state has to establish compliance. We often think of powerful entities like states in terms of them compelling people to obey, but that’s not actually quite how that works. See, compulsion literally means forcing someone to do something. Without direct control, that’s impossible.
This isn’t a pedantic distinction. Quite the opposite. Without direct control , the state and other powerful entities must use incentives to generate compliance. The two most basic elements of changing behaviour are rewards and punishments. Obviously, when you break the law, the law is not inclined to use rewards to encourage you towards compliance. It tends toward punishment.
Of course, the threat of punishment works too. In a sense the threat of punishment is a form of punishment, which is why laws can be deterrents at all.
Now, the state scales those punishments relative to the crime in an effort to strike a balance between establishing compliance and keeping punishments proportional. It’s not exactly practical to punish jaywalking with death, never minding the morality of it, and hardly something people will accept.
But the basic calculus is this: To be meaningful and to function as deterrents, laws must be enforceable. To be enforceable, the state must be able to escalate its enforcement until it achieves compliance. The ultimate enforcement measure at its disposal is death.
So, commit a relatively minor crime, like jaywalking, and you get a minor penalty, like a small fine.
But what happens if you don’t comply? You say no, you refuse. The cop holds out your ticket, and you simply ignore him and walk on by?
Well, there was a healthy debate about that in the United States. Many supported the idea that police can and should shoot a fleeing suspect, even one that was only to be charged with a misdemeanor.
So, you refuse the cop and his ticket, and keep walking. He says stop. You don’t. He starts chasing you. You run. He pulls his taser, yells stop. Panicked now, you run harder and get out of range for the taser. He switches to his firearm and shoots you dead. For jaywalking. Or maybe for sleeping in your own car. Or playing video games.
I should hope that most people recognize the absurdity of this. And yet it is one generated, actively, by the circumstances of law.
But, surely (as many think) we can count on the common sense of police? Surely we can count on the normal instincts of people to not kill other people to restrain such impulses?
Perhaps we can, at least to a certain extent. But here again the problem is one of incentives. A police officer has to work against the structural incentives in place to de-escalate the use of force. The formula is simple: They are hired to do a job, (i.e., policing). Their paycheque is contingent on them doing their job. They have a material incentive to do their job, notwithstanding the proselytizing their training academy doubtlessly did, extolling the importance of police, the strength of character required to do the job, and the unfiltered virtue of being a Good Cop. This is all only further strengthened by Cop Culture which, by turns, identifies the public as hostile and potentially dangerous and identifies fellow officers as being the greatest source of support and understanding. An us vs. them mentality is easy to derive from that.
So they go out to do what is often a difficult and dangerous job. They are trained to defend themself, and they know that if they use force, it will likely be used against them. So if they are to use it, their incentive is to hit with overwhelming force, to minimize the danger to themself.
Against this we ask their desire not to kill anyone to stand alone. Against the paycheque that feeds their family; the sense of duty that feeds their conscience (or ego); the understanding that the gun on their belt is as much a target as it is a shield; the survival instinct that kicks in when engaging in conflict.
I’m sure there are people who feel comfortable counting on the moral nature of police officers to be sufficient. They are wrong to be so comfortable. We like to think that people make decisions solely on the basis of what is right. They do not. That is true on a personal and a general level. Ethics are a portion of a balance of considerations humans weigh when making decisions. They tend to follow what is necessary, rather than the other way around; this is why self-defense is considered moral. A person is dead whether its self-defense or murder, but because self-defense is necessary, we justify it as moral.
All of us are being dishonest if we say, forthright and without embarrassment, that we have only considered what is right when making decisions, and have never compromised our ethics even in the slightest. That little white lie you told; the time you blamed a sibling for something you did wrong; there are countless other examples.
We also often assume that this is only relevant for the small stuff. It is not. The big stuff is built from the small. If a snowball dissolves in water, so too will a snow castle. The properties are the same.
When we ask the police not to shoot, when we expect them to, we ask only with words. They are told in much weightier and more meaningful ways to draw their guns. As long as they exist as an institution, we should ask as little of them as possible. An argument can end to your dissatisfaction, but typically, nobody ends up dead, because nobody has the right to use force to get their way. The police not only have the right, but the responsibility and the expectation, and the punishment if they didn’t and should have used force.