Eric Garner and the issue of over-criminalization

The death of Eric Garner at the hands of a police officer has focused attention not only on the use of force against Garner, but also on the low-level nature of the crime that put him in jeopardy. Garner’s offense was selling loose cigarettes, a means of evading the high tax imposed on tobacco products.

For purposes of analyzing the potential case against the officer who choked Garner, it makes no difference what crime the deceased was committing. The question of whether selling loose cigarettes should be a crime is a separate matter, though one worth considering.

But if we move beyond the merits of the case against the officer, it becomes possible to assert a link between Garner’s death and claims that the criminal law intrudes too deeply into the lives of Americans. Stated in dramatic terms, the argument is that over-criminalization gives rise to an “omnipresent police power.” This, in turn, can produce police abuses such as the one we think we see in the video of Garner’s death.

Here too, we need to separate two questions: (1) should the police aggressively enforce laws that ban low-level bad conduct and (2) how much low-level bad conduct should be banned.

To the first question, my answer is “yes,” although aggressive enforcement obviously shouldn’t extend to the use of excessive force. As John Podhoretz points out, the remarkable reduction of crime in New York that began in around 1990 is attributable in good measure to application of the “broken window” theory of policing, which holds that the first act of a functioning law-and-order system should be the imposition of order by stopping low-level crime.

Accordingly, if there’s a law on the books that prohibits selling loose cigarettes, the police should arrest violators of that law. And I hope it’s not amiss to point out that Garner, whose criminal record contained at least 30 arrests including for assault and grand larceny, illustrates the point. The police reportedly had received complaints about him. Allowing Garner to hang out on the street selling loose cigarettes was the equivalent of a broken window — a signal to the community that laws won’t be enforced and that disorder will be tolerated.

But if selling loose cigarettes hadn’t been a crime, Garner wouldn’t have been a “broken window” by virtue of selling them. There would have been no attempted arrest by the police, no passive resistance by Garner, and no death by choking.

This happenstance doesn’t mean that selling loose cigarettes shouldn’t be a crime (I take no position here on that question). We shouldn’t decriminalize behavior in order to avoid the possibility of arrests going tragically wrong. Decriminalization to prevent police confrontations violates the “broken window” theory in the same way that non-confrontation of criminality does, albeit more subtly.

In determining what behavior should be deemed criminal, however, it is worth keeping in mind that criminalizing behavior carries costs. One of those costs is greater friction between the police and members of the community. The extent to which our criminal laws are consistent with this understanding is a question about which I’m not qualified to opine.

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