The Two Extremes of Law Enforcement

Might law enforcement have to be utterly horrible because society cannot survive unless it is? Yes, although that’s rare and would likely reveal a failure of advance planning on other matters. Might law enforcement be nonexistent because society doesn’t need it? Yes, although the odds are infinitesmal and shrinking.

The Awful Extreme that Catches Your Throat

Groundwork and a Murder

Here’s one hypothetical extreme: Someone sets up a new nation, tossing a pile of rocks into international water, cutting ties with all other nations including citizenship, and inviting people to accept new passports and live there. There’s no reason to set up a new nation unless there’s a reason, something different about this one that would attract people to make the journey. Often, that’s economics or theology. In this one, let’s say it’s the offer of a mafia state. You can do whatever you want. Someone has property? You want it? Take it. They don’t coooperate? Kill’em. There’s no law against it here. You can even export your craft around the world, and if you should feel a need to come back here until things cool off elsewhere, this nation doesn’t extradite. There’s a tax but it’s not much, it’s a flat rate that’s easy to remember, and the form is simple. You don’t have to keep records. You pay and if the collector likes what you pay you can keep living. So, people move to this island before they get arrested elsewhere. Here, life is good.

But then one day someone kills the wrong person, it’s murder, many people get upset, and revenge is not enough. A law gets passed and it limits who can be killed on a whim. But everyone in this nation is still in a mafia state of mind and the killings continue as before, and even the sensitive killings continue apace. Law enforcement is a joke, but don’t tell the joke too often or you’ll be shot on suspicion.

Consequence For Enforcement

When an important law is ignored, the next step is to enforce it. If citizens don’t seem to appreciate it, which is noticed when the government hires police officers and judges and a week later is burying them and hiring more, the national leaders step up law enforcement. Continuing up the ladder, at some point a difficult dilemma becomes apparent. The dilemma is driven by costs. Generally, the more legal rights a suspect has, the more enforcement will cost. Also, the more difficult is enforcement, the more police and judges may be needed; and that pushes up costs. The national government may not have money to do enough of this to reduce crime much.

One solution to that is to cut elsewhere, but that might be unpopular and counterproductive, such as if cuts reduce economic development and revenue from taxes. The other solution is to use the existing budget for the police force and the judges’ bench but to use it more efficiently, i.e., to find, arrest, convict, and sentence more people within the same budget. Using an unchanged total budget to commence and complete more cases mathematically requires cutting the average per-case budget. That can be achieved with some less-controversial steps, such as, perhaps, opening more arrest-processing facilities, but eventually one could examine suspects’ rights for cost implications. Costs per case can often be reduced by reducing rights.

How far this can go is a political question. Law can be amended where political will supports doing so. Success in crime reduction will reduce challenges about loss of rights, but another challenge will arise, which is that if crime is very widespread and apparently crucial to survival you’re increasingly likely to find your neighbors, friends, and family members getting swept up in this wave of arrests without meaningful rights. You depend on your family and others for your survival and now the state says they’re awful people and you should have nothing to do with them.

You soon question the state’s judgment. You soon deny the state’s judgment.

Reality in the Extreme

Mafia states are far rarer than is sometimes claimed, because the word mafia is at times misappropriated through exaggeration. Few or no societies tolerate a freedom to kill its members on the slightest of whims. Maybe an autocrat can, but a given society has only one or two autocrats at a time, tops.

However, a similar law enforcement problem arises in nations suffering hyperinflation, which economists define as ‘inflation of 100 percent or more per year’. In my observation, if it continues for a long enough time, people who describe their own lives under such a regime tend to be very vague or conspicuously incomplete about just how they try to make ends meet. The disconnect between income and expense is too unstable.

They tend to talk about tactics like finding the clerk in a large store who goes around raising prices so they can run ahead of the clerk and get items before prices are boosted, but in that scenario prices likely increase only by relatively small amounts each time (being frequent) so not much can be saved that way and that tactic is not applicable to small stores, which would be most stores and which can’t afford to have clerks who do nothing else, or to housing, utilities, transportation, services, and transactions among friends, and all those cover most of daily living. Talking only about a narrow tactic is incompleteness.

Vagueness also prevails. Families may not know how any family members got anything that’s valuable, but they often don’t want to know. How they got it may have been embarrassing or unlawful. Failure to commit a crime toward taking care of one’s family may be embarrassing, as when admitting that a store did a nice favor by charging only last week’s price, since that may inspire a run on that store and the loss of that favor to the pre-existing beneficiary in the future. It may be safer to claim to have committed a crime even without having committed one, and that claim would encourage real crime. Crime in society is likely to be widespread and major enough to justify arrests. I don’t know what kind of crime is more common under hyperinflation, but I guess it’s high-value robbery, burglary, and other property-taking and -converting crime and crime against persons seeking to defend property, including injury and, not so rarely, murder. I don’t know how much of this crime occurs under hyperinflation, but I guess it’s committed by almost every household almost every week. Consequently, society risks fatal disintegration.

Solving the Chaos of Hyperinflation

To cut this, economic recovery must be virtually thorough and public, but economic policy is not enough. Suppose a necessity that sold for ten dollars was sold a month later for thirty dollars and was likely to sell for ninety dollars another month later but price-stabilization policy kept the price at thirty dollars. But suppose also that, when averaging over a career of crime, the cost of stealing the item was a dollar and the likelihood of being stopped was historically nearly zero. Once stealing becomes the norm, that it’s cheaper to keep stealing is more compelling than that doing so is unlawful.

Thus, it’s likely that, even after economic stabilization, almost every household will continue committing major crimes almost every week. Therefore, for society to recover back to safety, normality, and stability, economic policy changes must be accompanied by law enforcement, and almost certainly heavy law enforcement, which either would be unaffordably expensive given the instability due to hyperinflation or would allow few rights.

Bad Law Makes Bad Cases

Law enforcement with too little in rights is likely to be tolerant of more errors, especially visible with more convictions of the factually innocent and, with that, due to cessation of investigations of closed cases, more failures to arrest the factually guilty.

In addition, the lack of rights to the point of being perceived as a lack of fairness in denying a fair defense will undermine public confidence in law enforcement, even with high success in lowering crime and especially without that success.

Which Rights at Risk

Many kinds of rights could be placed at risk. Looking like someone who will commit a crime could be a convictable offense in itself. Laws could be given retroactive effect (through ex post facto laws), including laws defining new offenses. Torture could be explicitly authorized. Police officers could be permitted to submit written statements of fact to judges without being questioned. Lawyers could be increasingly restricted in how they defend clients. Trials could be made into show trials or done away with altogether. Appeals could be done away with.

Sentences Shortened

Sentencing when major crimes are the norm is even more problematic. If almost everyone is committing a major crime that warrants at least a year in a maximum security prison, imprisoning everyone who committed it will conflict with the popular perception that most of the people known to some who were not thus convicted are good people who should be free. That’s a political conflict. The result will be that even when the evidence is irrefutable most of the crimes will be downgraded or excused.

Fiscal expense burdens high sentences. Prisons are expensive to build, staff, and maintain. In the U.S., that kind of imprisonment for only a quarter of the adult population would require every nonimprisoned adult to pay about $13,000 in additional tax, and voters won’t accept that.

Removing a quarter of the population from productive work or reducing them to slavery cripples the macroeconomy. They still have to eat and consume other necessaries but can hardly afford to pay for them. Even a society that has its government retain the public’s earnings (such as from low-wage state-run industries) can’t build its prisons for free.

The result is that a society cannot accept major sentences for more than a small percentage of its population. Thus, most major crimes will be punished with only minor sentences. This will have a split effect, in that people who are known only for major crimes, generally community outsiders, will pay heavily while people who are known for taking care of their families, generally community insiders, will get off lightly for similar crimes. Who should be in which category will not generally be agreed on. This will cause contradictory perceptions of the efficacy of justice and buttress a finding that, at best, sentences are arbitrary. This will not shore up confidence in institutions related to law enforcement.

Public Distrust and Government Redirecting Blame

The shortage of public confidence in the outcomes of individual cases when perceived as part of a systemic shortage will erode confidence in judgments of guilt in family members, friends, neighbors, and members of larger communities, in that order, and, insofar as the shortage of confidence expands, in the entire criminal justice system, the entire law enforcement system, politicians who support tougher law enforcement, the entire current government, and any successor government short of one installed by the victor in a war (even such a government might engender little confidence but, given historical precedents, some successor is likely to regain that confidence, even if eventually). If crime is made to level off or is brought down, some people will applaud the police and judges for being tough on crime (the complimenters may themselves be innocent or criminal, those who are criminal expecting to get away with it), but general public resentment at police methods will tend to boil.

Increasingly, therefore, as rights deteriorate and public confidence wanes, blame will be heaped on the government. Based on history, the most immediate targets of that blame will be the front-line enforcers, generally uniformed law enforcement officers, and the judges, whose final decisions make them prominent. While a national public generally respects its law enforcement officers, in this situation that will be decreasingly likely. As more blame lands on law enforcement officers, some blame will drench top government officials. In one especially infamous horror, top government officials shifted the blame to a religious and ethnic group it deemed subhuman and systematically murdered. Although that shift was wrong for other reasons, it may, politically, have left the police more elbow room to reduce crime fueled by hyperinflation. Whether giving the police and judges more flexibility to restrain crime even without targeting a religious group was a good idea in the circumstances is debatable on the facts; but in some cases around the world it might be, especially if temporarily.

Adapting and Revamping Even After Success

Managing enforcement in an extremely lawless society may rely on frequently adapting and probably revamping wholesale. If crime is reduced by a significant degree, the power given to the police and courts should be gradually reduced. If the crime reduction was due to the hiring of more officers, attrition should be encouraged and hiring should be virtually frozen; while if crime reduction was by a reduction of rights, they should be partially restored. As crime continues to drop, enforcement costs should continue to be pulled down and more rights restored.

Credibility for the good work of the law enforcement system needs to be supported. To that end, official misconduct must be deterred and punished, unusually positive achievements rewarded, and, if necessary, reorganizing and rebranding the enforcement agencies, selecting new leadership, and permuting the membership even if the former leadership accepted the doctrinal changes and the members were doing well in their former assignments. Even the nation’s top political leadership may need to be replaced by others because the heavy-handedness may have destroyed most of the credibility the top leaders formerly exploited for other purposes.

Rights Help Society and Economy

Rights are important, but not only for the individual who immediately benefits. If the police can arrest and judges can isolate into custody pursuant to any standard less than absolute guilt, statistically some innocent people will be arrested and isolated. Innocent people generally can be economically productive and most who are adults are, but generally lose much of that when in custody and may find it more difficult even when freed after an arrest. That costs society, macroeconomically. As law enforcement succeeds and law enforcement’s profile is reduced in parallel, economic opportunities should be more easily found, developed, and exploited and society’s macroeconomic base should grow, benefitting government and individuals.

Reducing the Enforcement Profile

Part of what would make reducing law enforcement difficult, even nearly impossible, is that, even with incremental success, public anger at law enforcement would grow. Political leaders and many other stakeholders, such as the very affluent, connected to political leaders would likely worry about insurrections, civil war, and new forms of lawlessness producing political instability. They would likely respond by strengthening law enforcement.

But if that would intensify the risk of revolution, the better choice might be frequent elections of the government overseeing law enforcement and a law enforcement profile reduction, even if that seems counterintuitive and requires leadership and other stakeholders to be confident and right that crime reduction will continue along with law enforcement reduction.

Adjustment as Preferable

It is usually easier, politically, to adjust the number of personnel performing law enforcement than to adjust rights, since rights tend to be evaluated as relatively timeless. But both are adjustable and if society’s survival is at stake, because of either insecurity or economic failure, those adjustments, even if huge, may be the best choice.

Placid and Pleasant

The other extreme is where society is so cooperative that law enforcement can depend entirely on misbehaving individuals submitting to authorities with full confessions. Some societies like that are new ones formed by the adults who largely still constitute them; those generally are attempts at utopias and don’t last generations (although they may teach important lessons to other people about possibilities).

While there have been claims about gatherer-hunter societies being peaceful and some still exist in hard-to-reach terrain, some research suggests that such societies tend to depend on strangers questioning each other to establish a relationship through common ancestry traceable back through perhaps several generations and absent such an ancestral link one person is more likely to kill the other. There are reports of such a society killing a member because they’re too free-spirited or disorderly and other members feel their community threatened. Statistically, not killing in a small population may mean little when the population is too small for comparison to a larger society.

As far as I know, most such societies lack specialized police forces and judgeships. Instead, they adjudicate by having trusted leaders include adjudication among their functions even without receiving confessions.

A highly cooperative model, all else equal, could produce an economic boon, since few assets would have to be detoured to law enforcement, leaving a higher percentage of total assets available for other purposes. However, while they meet their economic needs, they’re not known for being economic powerhouses or leaders even on a per-capita basis. If they’re not, perhaps such a high degree of cooperation depends on a lack or suppression of initiative and inventiveness because of a fear of challenging anyone else in the culture. If so, such lack or suppression is ultimately likely to retard society’s economic growth and perhaps self-sustenance as other societies advance and compete more effectively for resources.

Compromise is a Clean Word

No society is unable to make any of these changes. It may be difficult. It may require political will unavailable until a civil war has intervened and a new political system and new political leadership have come into place. However, because the costs of a civil war can require generations to repay, including explicitly financial costs and the costs of population decimation, it is usually better for a society to be successful, however judged, through peaceful means.