See a Problem? Make It Illegal!

The first of several quotes from Shankar Vedantam

In recent decades, [say Douglas Husak and Lawrence Solum, legal theorists and philosophers], Congress has passed innumerable laws that no one seriously expects will be enforced. Such laws largely seem to serve symbolic purposes and are often designed to placate some powerful constituency -- conservatives in the case of immigration, or the entertainment industry in the case of laws that seek to deter people from swapping copyrighted music and movies.

The yawning divide between reality and what such laws say should happen is what produces the dilemmas that lead to amnesties.

...

The consequence of symbolic lawmaking is over-criminalization, which turns out to be as difficult a problem to deal with in the long run as crime itself.

When laws are passed that cannot or will not be enforced, people quickly come to understand that the law does not mean what it says. This is why, if you actually happen to drive at the 55 mph speed limit on the Capital Beltway, you seriously run the risk of getting rear-ended by the flood of vehicles that are whizzing by 5, 10 or even 20 miles per hour faster.

There is a law about speeding, but it is not the law that is on the books. Exceed a certain speed -- it might be 60 or 65 or 70 mph -- and you are going to get a ticket. What Solum and Husak are arguing is that, if the cops are going to give you a ticket when you cross 65 but not when you cross 55, set the speed limit at 65. Get the law to mean what it says.

"When we set up laws that are intended to express symbolic disapproval, but that we are not willing to enforce, we send a message that we are not expecting people to obey the law," Solum said. "The immigration laws are a perfect example of that."

The problem is not just that when people start interpreting the law on their own, they come up with wildly different interpretations-- some people drive 5 mph over the speed limit, others think the magic cushion is 15 mph. The bigger problem with setting the bar too low, so that large numbers of people become lawbreakers, say Solum and Husak, is that it greatly enhances the discretionary powers of police, prosecutors and the executive branch.

...

Most people who get in trouble are the ones who police and prosecutors decide, for whatever reason, should be punished, Husak says. Enacting impractical laws that have largely rhetorical value, in other words, leads to selective enforcement -- with all the attendant risks of unfairness and bias.