Wednesday, November 10, 2021

The Troubling Phenomenon of Enforced Unlaws

by Matthew Tokson

Recently, ProPublica broke a remarkable story about Black children in Tennessee who were jailed for a crime that didn’t exist. A juvenile court commissioner charged several children for witnessing a fight between two other children and failing to stop it. This is not a crime in Tennessee. But there was a video of the fight on YouTube, and the police officer investigating it wanted to charge the onlookers with a crime, perhaps because the fighters themselves were too young to be charged. She and a judicial commissioner at the local juvenile court dug through Tennessee’s laws and found a “Criminal responsibility for the conduct of another” statute, which described general principles of accomplice liability but did not itself define any crimes. They used this statute as the basis for an arrest petition, and police arrested several children at their elementary school later that day. Ten children were ultimately charged in the case, six girls and four boys. All four boys were jailed pending a court hearing. 

This was a particularly egregious example of the phenomenon I will call “enforced unlaws,” where law enforcement officials invoke pseudo-laws in order to justify extralegal enforcement practices. These unlaws are generally invoked by officials who seek to justify the enforcement of discriminatory norms in situations where no legal basis for enforcement exists. In the Tennessee case, a white police officer invented charges to use against Black children, four of whom were deemed a threat on no discernible evidence and confined to a detention center pending review of their cases. Enforced unlaws have also been used to justify the use of police authority against other targeted groups, including LBGT+ persons, immigrants, activists, and more.

For example, New York once passed an anti-gay law making it illegal to “cruise,” i.e. to proposition someone in a public place. That law was struck down as unconstitutionally discriminatory by New York’s highest court in 1983. Yet in the several decades after this law was invalidated, it was applied thousands of times by police officers and even district attorneys, inducing citizens to pay citations and in some cases to plead guilty to a non-crime before paying substantial fines. As of a 2009 report, the non-law was still being applied by New York police officers. The defunct law survived in part because individuals who received citations may have feared public exposure, preferring to pay their fine without consulting a lawyer or contesting the charges. And the persistence of the NYPD in enforcing this non-law against LGBT+ persons indicates a discriminatory motive.

Several other factors may also be at work in situations of enforced unlaws. Law enforcement officers may, like judges themselves, tend to favor prior laws even after they’ve been repealed due to status quo bias, habit, and other cognitive factors. The existence of prior laws may create a permission structure for officers exercising their power in certain situations, which may motivate the continuation of enforcement behavior even after it loses its legal basis. In other situations, officers may want to clothe their unlawful actions in a shroud of apparent legality in order to secure the compliance of citizens or reduce the likelihood that the officers will be arrested or prosecuted for their extralegal acts. Finally, police officers and similar officials may be so used to exercising broad discretion when enforcing criminal laws that they slip easily into extralegal actions they feel serve the larger purposes of maintaining order or enforcing societal norms. In Tennessee, the officer who charged the children with a contrived crime stated that charging the children would ultimately help them because “juvenile court is about rehabilitation.” 

What can we learn by studying enforced unlaws? For a start, they suggest that extralegal actions by law enforcement officials are often performed with a veneer of apparent legality. This might suggest that observers should verify that the police actually have the legal authority they are invoking in a given situation. For another, enforced unlaws reveal that habitual practice over time can create powerful societal understandings that function for enforcer and enforcee alike as quasi-laws to be obeyed.

I also find it interesting to compare enforced unlaws with unenforced laws, such as obsolete laws against adultery that have lain dormant for decades in most jurisdictions but have not yet been removed from the statute books. (The common law doctrine of desuetude suggests that such laws eventually become unenforceable.) Together, unenforced laws and enforced unlaws suggest that law enforcement practices are more norm-based and extratextual than is currently appreciated. In the context of enforced unlaws, discriminatory norms often outlive the laws in which they were once enshrined. For unenforced laws, the opposite often occurs: discriminatory laws fall into obsolescence, but they continue to threaten discriminatory harms and are occasionally revived to enable selective enforcement. Moreover, the symbolic qualities of unenforced laws often make their repeal politically difficult, even when the laws are plainly unconstitutional or uniformly unenforced. Enforced unlaws and unenforced laws can reveal a great deal about the nature of our law and its implementation. I’ll share some more lessons and examples of these phenomena in the future.