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Rule of Law
Arbitrary arrests and the fallacy of the rule of law in America
(3rd edition - May 2007) by A.O. Kime
 for information on
'renting' this article, see Rent-a-Article
According to the Wikipedia encyclopedia… the rule of law “implies that government
authority may only be exercised in accordance with written laws, which were
adopted through an established procedure. The principle is intended to be a
safeguard against arbitrary rulings in individual cases.”
While the ‘rule of law’ sounds like a great concept, in theory enabling everyone
to know exactly where they stand legally at all times, in theory freeing one
from worry about unwarranted and arbitrary prosecution, this idealistic concept
is facing a profusion of ‘engineered laws’ which prevents it from becoming a
reality. By ‘engineered laws’ I mean those laws which have a lot of creative
legalese designed to cover a gamut of situations... as if using a shotgun
approach. While once laws were simple instruments, clear-cut and precise as to what would
singly constitute a violation, therefore narrow in scope,
that isn’t the case anymore. Gone are the days of the Law of the Twelve
Tables, the legal code of ancient Rome codified under Justinian... simple, yet
clear. Gone too is the golden age of the 18th century when men thought a single
sentence could describe a law plainly,
like in the Bill of Rights. Today's shotgun approach to law enforcement, with
laws designed to be able to hit you with something, anything, is the main reason the rule
of law is nothing more than an unfulfilled idealistic dream.
The rule of law becomes meaningless when laws are engineered to be
flexible… laws which can cite dozens of circumstances whereby an arrest can be
made… call them ‘violation triggers'. And it's like arming lawmen with shotguns.
With so much leeway given law enforcement
officers, whereby one cannot turn around without being technically in violation
in some manner, creates a judgment-call situation reminiscent of the arbitrary
justice from the Dark Ages… or a police state. If a situation exists as to
whether or not charges should be filed, a discretionary judgment, then the rule
of law concept evaporates. Judgment calls should have no place at all under the
‘rule of law’ except in the courts… for their interpretation of the law and
whether a violation did, in fact, occur.
Threatening and intimidating or shotgun rule?
For example, under Arizona law simply yelling at somebody without taking any
other ‘hostile’ action, can be legally construed as ‘threatening and
intimidating’ and opens the door whereupon an arrest can be made. The ‘can be’
part is where the problem lies. Under Arizona law there exists nearly a dozen instances
whereby one could be charged for threatening and intimidating. From
the choice of words used to describe these instances, it covers almost
everything imaginable… giving excessive latitude to the police officer’s
discretionary powers. While it is unlikely charges would be filed against a
person for simply yelling at someone, the point is… charges might be, or might not be, filed.
Arbitrary... no? As we all know, the
option of whether or not an arrest should be made belongs to the police officer.
Except where does ‘option’ fit in the rule of law? The term ‘rule of law’
suggests strict adherence… not flexibility. If options and flexibility do fit
then the concept (as a theory) isn’t sound.
In order for the rule of law to become an actuality laws must (should) be
strictly enforced. Strictly enforced I say? Yes, if laws were fair and
reasonable then they should be strictly enforced. We’d be better off knowing for
sure where we stand... to be confident in our ability to avoid arrest. That
scenario is just what the plebeian class of ancient Rome wanted... which the Law of the
Twelve Tables provided. They’d have to be similarly simple laws however,
laws which are clear to everyone, but most importantly laws which take away every
ounce of latitude, verbiage which could potentially broaden their
scope. Actually it’s a case whereby laws can be strictly enforced without
putting half the population behind bars. If they are not strictly enforced how
can we say we live under the rule of law?
It seems clear; instruments with discretionary latitude resemble guidelines
more, not laws. Laws should be specific and the less specific they are; the less
they can be described as laws. They become guidelines and since guidelines can
cover a broad range of circumstances and being intentionally vague often, the end
result amounts to arbitrary justice. There is a great danger having laws not narrowly
specific and not strictly enforced. It’s a great danger to justice… perhaps the greatest
danger. So until police discretion is removed, the rule of law concept can't exist.
The rule of law and democracy
Yet the American government goes about espousing the rule of law to other
countries as if it really exists in America… and at the same time insinuating, in effect,
that the rule of law can only exist within a democracy. That it can only exist
within a democracy isn’t true. The dedication to the rule of law can occur in
any type of government… even within a dictatorial regime. Strict adherence to
the law is actually more likely within a dictatorial regime or even within an
Islamic state. After all, dictatorial laws belong to the dictator so naturally
full compliance would be mandated… to the letter of the law. The same goes for
obedience within the Islamic states… to those laws religiously decreed. So it doesn’t
matter how national laws come into being, whether democratically legislated or
by dictatorial decrees, what makes the difference is a country’s dedication to
the principle.
So is America dedicated to the rule of law? If it was, then half of America would be behind
bars because of the latitude within American laws.
What. pray tell, is the difference between arrests without legal grounds
(truly arbitrary, like in Mexico), and arrests with legal grounds when a violation
can be found within almost any circumstance?
While Mexican police officers will often arrest anyone on a whim, whether they
broke any law or not, a completely arbitrary arrest based on their discretionary
powers as they personally see fit… it isn’t any different in America. With so much
legal latitude, an American police officer could arrest almost anyone in
almost every circumstance based on his opinion whether an arrest is warranted
and this legal latitude amounts to the same thing as making an arbitrary arrest.
From merely a personal dislike for someone, an American police officer has
within his arsenal all sorts of possibilities whereby an arrest can be legally
made. While a tiny infraction doesn't often led to an arrest, it can and does
happen. A respectful attitude towards the police officer often makes the difference,
not how far one crossed the line. It's a judgment call but it smacks of 'arbitrariness'
nonetheless.
Dirty looks in a police state
So next time someone makes a pass at your girlfriend or wife
(boyfriend/husband), don’t even give them a dirty look… under Arizona law that
is also considered ‘threatening and intimidating’ and you would be subjecting
yourself to possible arrest. Don’t keep around your old psychedelic bong from
Woodstock as a souvenir either, if it has any traces of marijuana from 35 years
ago, you could be possibly arrested for possessing drug paraphernalia. Or if you
admitted to a police office that you have smoked marijuana in the last 7 years,
you could be arrested. While such arrests are only a possibility… that’s the
point.
If by chance an officer can find no reason to arrest you initially, then there are other
ways the police can utilize the law. For example, if you are stopped because of
a broken taillight and refuse the officer’s request to search your car, you will
possibly be (probably be) arrested whereby an officer can search your car in
order to ‘inventory’ your possessions. As a consequence of their inventory
findings… from a legal standpoint it’s the same as if found by a legal search.
It’s just their little way around having to obtain a search warrant… except
that’s the rule of law of a police state.
The officer could consider your grandmother in the back seat a 'known
prostitute' and you, therefore, a pimp. After all, even talking to a 'known
prostitute' is considered a crime... certainly grounds to stop and question you
further. But known to whom? If it isn't obvious, then what? In America today, only
the comatose can avoid possible arrest.
So, if you are not arrested for simply yelling at someone… is it simply a matter
of getting away with something? Should you be thankful? Or should ‘yelling’ be a
condition at all? After all, to yell at someone is quite common and most often
justifiable. Even grandmothers yell. At any rate, we shouldn’t have to rely on a policeman’s
good judgment because when we do then the rule of law does not exist.
The only way the rule of law can exist is if every law is strictly enforced.
That means the officer must (or should) arrest you if you yelled at someone. If
he didn’t, then you’d know for sure you got away with something. After awhile,
as arrests skyrocket and the courts get jammed, as prisons overflow, only
then will the lawmakers consider removal of these excessive conditions. Well,
they won’t so we’re back to the fact the rule of law doesn’t exist in America.
In Arizona, it exists perhaps only as Genghis Khan would imagine.
On the other hand, some people would say it’s not possible to get away from the
reality of the present situation. Some would say it isn’t possible to create
laws which are simple, without latitude, and still empower the police to enforce
the intent. Well, if it's impossible then we’re back to the fact the
rule of law doesn’t (can’t) exist. Perhaps too, it’s a relative matter… all
dependent on how ‘liberal’ a nation’s laws are. The broader the scope of a
particular law (shotgun effect), the further away is the reality of the rule of law.
Conversely, the narrower the scope and more defined the target, the closer the reality.
Police discretion
Police discretion has another face however and for some interesting points see
police discretion
(external link). Within this Wesleyan College article it states (in part):
LaFave (1965) and Davis (1969) list the following reasons for non-arrest:
Police believe the legislature did not desire full enforcement. Instead, they
believed the politicians were making symbolic statements, expressing an ideal,
or appearing to be tough on crime. Some (community standard) statutes are full
of ambiguity, and some old statutes need to be taken off the books. Other laws
may carry penalties that the police think are too severe.
Note: Apparently the above was attributed to Wayne R. Lafave and a UC Davis
report.
While technically (theoretically) discretionary powers and the rule of law can't
coexist, as a practical matter the police should (must) have at least some
discretionary latitude. However, the overly-broad and ambiguous laws of late
have greatly increased this latitude and the likelihood of arbitrary
justice. Today, armed with discretionary powers effectively unlimited in scope,
too much depends on the officer and his disposition. The dangers of unlimited
discretionary powers were recognized centuries ago and the very reason
the concept 'rule of law' was conceived. It was to be the remedy... but when set
aside it is evidence history has been forgotten.
To consider whether justice can be better served (or not) through broad
police powers is to re-invent the wheel. History has already spoken. While there
is always the chance of arbitrary justice being administered, legislatures
continue to compound the problem. If, however, most legislators believe a police state
is the most efficient way to administer a society, and the laws say they believe
it, then those within this majority should at least admit it. But alas, no
legislator would admit to being un-American.
If a country reaches a point in jurisprudence whereby there was no
conceivable need to declare 'marshal law' anymore (or the equivalent), that
fully enforcing the existing laws would suffice, behind the claims of
legislative efficiency is an ominous signpost which points to Rome. Once again the fate of
justice rests entirely upon whims.
A.O. Kime
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