Benjamin Studebaker

I ran across an interesting old Supreme Court decision today from the mid-2000’s. It was a 7-2 decision and if I remember it didn’t get much play at the time in the press–though that was eight years ago, and I may just be forgetful. The court ruled that the police do not have a legal duty to protect any given citizen. The decision justifies a whole slew of first principle injustices–it was wrong, and we are worse off for it. Here’s how.

First, a little background on the decision, Castle Rock v. Gozales. In 1999, Gonzales’ children were abducted by her estranged husband, who was meant to be under a restraining order to stay away from her home. The restraining order called for the mandatory arrest of Gonzales’ husband in the event he violated the restraining order. In response to the abduction Gonzales called the local police in Castle Rock  multiple times, but they declined to respond. She then went to the police station to alert them, and, again, they declined to respond. In the meantime, Gonzales’ husband killed the children.

The decision ended up revolving around the 14th amendment’s “due process” guarantee, which prohibits the deprivation of property without due process. If that sounds like it has nothing at all to do with this case, it’s because it doesn’t. Children are not property, and the appeal to the 14th amendment made on Gonzales’ behalf was the result of a constitution that does not have any principles in it that would provide a requirement that the police enforce the laws–a glaring oversight on the part of the founders, it would seem. That document is far less perfect than is popularly believed.

The court’s decision could be viewed as a split along legal interpretive lines. There are two dominant schools of thought among Supreme Court justices when it comes to interpreting the constitution:

1. Originalism–looking at the text as is, bringing in no external moral views or beliefs.
2. Pragmatism–interpreting the text in the best possible way, in full view of our moral views and beliefs.

The originalists saw nothing in the text to require the police to do anything, and so they voted in the majority in favour of Castle Rock.

The pragmatists noticed that giving the police complete freedom to determine when they enforce the law and when they do not could lead to negative consequences, and so they voted in favour of Gonzales.

Scalia, in his majority opinion, appealed to a long-standing tradition of police discretion–leaving it up to the police the manner in which they prioritise their enforcement duties. While it is obviously important that the police be able to prioritise violent crime over say, noise complaints, the principle is grossly overextended, and the result is that the police neglect the poor, women, and racial minorities. The police need to be able to prioritise by severity of the crime, but not on classist, sexist, or racist grounds.

In the absence of restrictions on police discretion, the state fails to weigh the interests of its citizens equally, favouring some citizens over others on arbitrary and irrelevant grounds. It is de facto classism, racism, and sexism produced by an insufficiently clear law and permitted by a lax judiciary that does not take its moral obligations seriously. Courts exist to provide for good, just rulings, not to perpetuate injustices that the legislature has chosen to ignore. Sometimes creating a just outcome requires that a judge deviate greatly from the original legal text itself, and for judges to refuse to do this on originalist grounds is a moral abdication. It’s a cop-out. Forget police discretion, what is needed is judicial discretion.

The law should provide clear guidelines as to how police are expected to prioritise their resources. In cases in which police differ from these guidelines without adequate justification, they should be open to legal sanction. The police are obliged to show equal concern for the safety of all neighbourhoods, even if this requires significant additional investment in presently dangerous areas. If the local communities are too poor to provide the police with the resources necessary to provide for this equity, state or federal funding should be made available.

The same principle should apply to other government services. All citizens are entitled to equal consideration by the state, and so the state may not permit disparities in local wealth to produce disparities in quality of state services in education, infrastructure, health, and so on. Regional or national governments that fail to eliminate disparities in quality of services among poor and wealthy localities are not giving their citizens equal consideration and should be sued by those citizens for recompense.

The only cases in which equal consideration of interests provides room for disparity in quality of services is when more good can be done for citizens by disparity. If say, taking $10,000 in police resources from a wealthy area and giving it to a poor area harms public safety in the wealthy area more than it augments public safety in the poor area, the disparity is justifiable. Generally this will not be the case, due to the principle of diminishing returns–resource-poor areas tend to gain far more from a given additional resource than do resource-rich areas. A dollar means more to a homeless man than it does to a rich man. However, it is conceivable for a disparity to be justifiable, particularly in cases in which the population of the two areas we are comparing is very different. No one expects the state to provide the same level of transportation infrastructure in Wyoming as exists in New York City. It is not equality of distribution as such that we are concerned with, but equality of concern for interests. The two concepts are non-synonymous, as the latter is concerned not with the distribution itself, but with impartial allocation on the basis of need and effectiveness. The violation of equal consideration of interests comes in the form of adding to the effectiveness equation factors that are not relevant and serve only to prejudice the system in favour of certain subgroups. These subgroups are no more deserving than the rest of the population, but nonetheless receive special consideration. That is the inequity we target, and while this often also targets the distributive inequity, the two concepts are separate, and I have no concern for the distributive inequity in and of itself, as this would open the argument to the levelling down objection, about which I have previously written.