Federal overreach and the war on standards

The Justice Department has instructed local courts throughout America about how to treat people who violate local ordinances. DOJ has already sued Ferguson, Missouri for allegedly violating citizens rights by virtue of its treatment of people who run afoul of local rules and refuse to pay the resulting fines. Now, Vanita Gupta, head of DOJ’s Civil Rights Division, has sent a warning letter that, in her words, “articulate[s] a set of principles” addressing a range of state and local law enforcement practices.

The DOJ’s letter notes that poor people endure hardship as a result of being fined. When they steadfastly refuse to pay fines, the amount escalates. Eventually, an arrest warrant may issue. In the case of traffic and parking offenses, offenders eventually may have their driver’s license suspended.

The hardship is easily avoided, however. First, poor people can comply with the law — e.g. not speed, not park illegally, not disturb the peace. Second, if they violate an ordinance, they can pay the fine.

Anyone who can afford to buy or rent a car and pay for the gas can afford to pay a traffic ticket. People who refuse to do so aren’t refusing because they don’t have the $40 (say). They are refusing because they would rather not pay.

In the face of such willful disregard of the law, courts should escalate the penalties. In an ordered society, penalties must attach to thumbing one’s nose at the law.

The Washington Post editorial board defends DOJ’s letter by calling court fining practices “the criminalization of poverty.” The phrase comes from Loretta Lynch. It’s clever and politically correct formulation.

It’s also a lie. Fining practices don’t criminalize poverty; they criminalize willful disregard of the law.

The Post complains about the types of ordinances that result in fines. It cites traffic tickets, refusing to pay for use of light-rail systems (e.g. by jumping the fence), disturbing the peace, not maintaining one’s property, and “wearing saggy pants.”

With the exception of “saggy pants,” these are all traditional types of local regulation that promote legitimate local interests. By what right does the federal government interfere?

On its face, the DOJ letter isn’t as intrusive as it might have been. It doesn’t tell localities what ordinances they can enforce, nor does it place many limits on how far they go can in the cases where citizens refuse to pay penalties.

The letter focuses instead on procedural safeguards like an indigency determination (as a precondition to incarceration), notice and (in some situations) right to counsel, and so forth. In some instances, but not all, DOJ is able to cite Supreme Court law that it says supports of its position.

However, the DOJ letter also criticizes local practices “to the extent that [they] are geared not toward addressing public safety, but rather toward raising revenue.” Fines will typically be levied to enforce rules that improve the quality of life in a community (which may or may not involve “public safety”), but also with an eye towards raising revenue.

Both motives are legitimate. For the federal government to concern itself with the mixture constitutes serious overreach.

Moreover, as Lisa Foster a DOJ official who also signed the letter has made clear, standing behind the letter’s relatively mild tone is the hammer of the Department’s litigation policy, made manifest in its suit against Ferguson, Missouri. The Department describes the nature of that lawsuit here.

Insofar as it challenges Ferguson’s enforcement of local ordinances, the lawsuit complains about the disparate impact the city’s enforcement has on African-Americans. There are several problems with DOJ’s theory.

First, as Jim Scanlan explains, more relaxed enforcement would almost certainly increase, rather than diminish, the extent to which enforcement has a disparate impact on Blacks. To be sure, fewer Blacks would be fined or otherwise punished. But the proportion of Blacks fined or otherwise punished, as compared to Whites, would increase.

Second, DOJ challenges Ferguson’s enforcement practices under the Fourteenth Amendment to the U.S. Constitution. But the “disparate impact” of a rule or practice does not state claim under the Fourteenth Amendment; DOJ must prove intentional discrimination.

In some cases, it may be possible to infer intentional discrimination from practices with an egregiously disparate impact. However, given the great likelihood that less rigorous enforcement would increase the extent of the disparate impact (see above), such an inference should not be available in this case.

Third, DOJ has already concluded (in a March 2015 report), that Ferguson’s ordinance enforcement efforts are driven by the desire to raise revenue. Whatever one thinks about this motive, it isn’t a racially discriminatory one. Ferguson, no doubt, is happy to collect fines from anyone, regardless of race or color, who doesn’t follow its regulations, and eager to come down hard on anyone who doesn’t pay up.

Local ordinances and escalating penalties for non-compliance are the price we pay for living in well-ordered communities. As a practical matter, they are also part of the price we pay for the services local government provides to these communities.

People have often complained about this state of affairs. Only recently, however, has the federal government challenged its constitutionality.

Sweep aside the rhetoric, and the challenge seems to be based on Feds’ conclusion that minority group members are significantly less able to comply with ordinances, and/or significantly more prone to blow off fines, than their fellow Americans.

Is this true? I don’t assume so. But if it is, that’s no reason to relax enforcement of the law. Law abiding Americans have the right to reside in communities that uphold standards of livability and respect for the law.

Retooling the law to accommodate the lawless appears to be a central plank in the left’s war on standards (and maybe for some conservatives too). It is also a recipe for disaster.

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