Police Discretion Just Got Worse

by Will Wilkinson

The Supreme Court ruled today, in a 8-1 decision, that a police stop based on a officer’s false beliefs about the law can lead to a legally valid search.

Nicholas Heien was stopped in his car by a Surry County, North Carolina cop for having only one working brake light, which is not against the law in North Carolina. Heien then stupidly consented to a search of his car, which turned up a bag of cocaine. Heien subsequently argued that the search ought not to valid, and the drug charge dropped, since the traffic stop was based on the officer’s mistaken understanding of the law. The crux of the issue, legally, is whether a police officer can have a “reasonable suspicion” that a law has been broken – that’s the prevailing  standard for a valid stop – when that suspicion is grounded in ignorance of the law. The court says “reasonable mistakes of the law,” like the erroneous belief that two working brake lights is legally mandatory, may make the officer’s suspicion wrong, but not unreasonable.

This is too much. We’ve somehow arrived at a place where police can do pretty well whatever they like. Cops already have immense discretion to detain us. There’s a good deal of talk these days, and rightly so, about the “criminalization of poverty,” which is part of broader trend toward the criminalization of life through the proliferation of regulation. We are, all of us, breaking some law pretty much all of the time. Even if the cop is wrong about which law we happen to be breaking, he’s apparently not wrong to prevent us from going about our lawful business. When we’re all criminals, all suspicion, even ignorant suspicion, is “reasonable.”

Who gets the raw end of this deal? The most “suspicious” among us, of course. Michael Munger, a Duke University political scientist, gets to the heart of the issue of overcriminalization, and the dilemma it creates for those of us who want a state that is both active and just:

We have criminalized so many behaviors (in the Staten Island case, selling packs of cigarettes!) that we have given the police enormous pressure to perform — and gigantic latitude to act on prejudice, bigotry, and simple anger. The police, in their defense, have an impossible job. They have come to see almost everyone around them, every day, as a lawbreaker and a danger to society. Harvey Silverglate has famously estimated that most of us commit at least three felonies per day. The only thing that prevents us from being jailed is the discretion and public spiritedness of the prosecutor. …

As long as overreaching laws effectively criminalize being black or poor, it’s not surprising that the police will continue to treat black people and poor people as criminals. This kind of race-based law enforcement is given the stink eye by our friends on the left, but they can’t seem to draw the obvious inference: the answer is not better police or more enlightened officials. The answer is fewer laws. That’s the long division in our society, the most important difference that arises from class and social status. Decriminalize normal nonviolent daily activity, and the police will have fewer excuses to harass people they don’t like — people who often can’t fight back.

Now, I don’t think decriminalizing nonviolent daily activity is any sort of panacea. There’s a great deal more than needs to be done to rein in America’s lawless police, and I’ll be discussing some ideas for doing that over the next few days. But simplifying the law and decriminalizing peaceful daily life promises to somewhat reduce the exercise of the sort of police discretion which, when combined with our culture’s lingering ethos of white supremacy, amounts to systematic racial oppression. That’s worth doing. Moreover, simplifying the law reduces the chance that police will act on “reasonable mistakes” about what it says.

That said, I do disagree to some extent with Munger. Fewer laws isn’t the only obvious inference. Better police and more enlightened officials have got to be part of the answer, or reform is doomed before it begins. Like Munger, I think it’s idiotic to expect public officials to act like angels, and I believe we ought to design our institutions from unabashedly cynical assumptions about human motivation. But it is possible to demand a minimum standard of decent behavior without succumbing to what Munger calls the fantasy of “unicorn governance.” Other countries have secret agents that don’t torture people and police that don’t behave like lawless thugs, and that’s not too much to ask.