How Things Ought to Work And How They Do Work

A few days back I was talking to a cop I know about how little relation practical law enforcement often has to theory. For example, we do not have trial by jury but, in almost all criminal cases, trial by plea bargaining. Juries often do not consist of twelve men good and true but often (depending on jurisdiction) of dregs who can’t even understand the evidence, much less the law. Police often go by what works instead of what the law says.

A few examples: Plea bargaining, which in most cases amounts to an unlegislated reduction in sentence, can have the effect of extracting guilty pleas from the innocent. Suppose you are falsely charged with a serious violation. The prosecutor says he will drop it to a misdemeanor in return for a guilty plea. Reckless driving becomes speeding or whatever. You are under considerable pressure to pay a fine and walk away, though innocent, instead of spending a fortune on a jury trial, with the outcome determined substantially by chance.

You also have a misdemeanor on your record.

An example on the street: I was riding in a city when a very drunk driver swerved across the boulevard and nearly hit us. We’re not talking five beers. The driver was pickled enough to be in a museum in a jar. The cop stopped him.

The guy was black, in his sixties, courteous, harmless except that he was blasted. He had a license, he said, just didn’t have it with him. No registration. The tags came back to somebody else. Well, it was a friend’s car, see, said the driver. Well, the friend was out of town. Etc.

The cop could have locked him up. However, the sector was undermanned and crime-ridden. Processing a drunk takes hours, and this cop was a quarter of the available force. The dispatcher found that a man with what the driver said was his name was licensed and legal. The cop knew that sixty-year-old black men didn’t steal cars. (Profiling.) He also knew a judge would release him next day on a promise to show for trial, which he wouldn’t.

Yet the driver was dangerously drunk and would in all likelihood drive away if the cop didn’t arrest him. What to do?

The cop locked the guy’s car keys in the car and we left. Legal? No. But it saved the driver a night in jail, kept the cop on the job, and kept a drunk off the street for a few hours. He’d be drunk again the next day, but that’s how it goes.

Right? Wrong? Best available choice? I don’t know. It happens.

Another example: Cops regularly break up clusters of drug dealers and young toughs who are making a menace of themselves, even though they are breaking no law. Thugs will take over neighborhoods if allowed. If the cops immediately show up, ask questions, look for littering violations or whatever, the toughs find it unpleasant enough that they go away. Cops will often just tell them to move along. They don’t know they don’t have to, or don’t make an issue of it.

It’s hassling, plain and simple. A group of church-goers on the same corner would not be treated the same way. But it allows residents to walk around the block without fear. Right or wrong? It may depend on whose house the drug dealers are in front of.

Similar example: I’ve watched a police force take a neighborhood back from the lowlifes. Sometimes things get so bad that murders are happening once a week and guys are lying on the sidewalk, passed out with needles in their arms.

There are so many of these places in many cities that they can’t all be cleaned up. If one gets bad beyond toleration, the mayor or supervisors will tell the cops, “Make it go away.” Typically this is done by saturating the area with police, arresting thugs for any possible reason, parking a squad car in the drug market, checking ID over and over. (The Washington force did this at Potomac Gardens when I first came on the police beat.) Everybody eligible for jail ends up there, no slack. If two toughs congregate on a corner, three cops congregate with them.

Good or bad? Take your pick. A week or two later women will be walking their babies in strollers again and kids won’t have to walk around overdoses. Without these practices, from plea bargaining to rousting lowlifes, the system wouldn’t work even as badly as it does.

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