Radical Idealism

The growing use of tasers by the police and the invention of novel non-lethal weapons have led to calls to ban or restrict their use. 

The two sides of the debate are usually identified as the "civil libertarian" left/liberals versus the "law and order" right/conservatives.  The liberals are concerned with "civil rights and freedoms" while the conservatives worry about "safety and security."  Each side identifies with a victim group - the accused the left and the "law-abiding citizens" on the right.  This presents a dilemma for the public - should their primary concern be safety from criminals, or the potential for police brutality?  The false dichotomy of these choices is exposed with a little incentive analysis.

The introduction of non-lethal weapons allows a finer degree of discrimination in the escalation of force.  Whereas previously an officer might have had to decide between verbal commands, direct physical force, and lethal force, tasers introduce a finer distinction, cutting into the territory of all three possibilities.  Some suspects who might have previously been shot will be tased, but suspects who might have previously been wrestled to the ground, or ordered to comply might be tased as well.  As Dan D'Amico points out, tasers are a great substitute for muscle strength, allowing women to have a greater role in police operations. 

By lowering the risk of personal injury or unnecessary use of lethal force, tasers offer a powerful risk-management tool for police officers.  For the targets of non-lethal weapons, the effect is two-sided: suspects who might have previously been shot benefit, but suspects who would otherwise be verbally instructed or physically restrained generally suffer.

The debate over whether the police should use non-lethal weapons is thus misguided.  The police have always had a range of non-lethal options in their jobs, from words, to nightsticks, to fists.  The real issue being debated is the extent to which police officers should risk injury to detain suspects.  Should they only use force when someone's life is in danger, or to avoid the risk of injury when attempting to tackle a suspect, or to avoid a sprain from having to run after someone?  It is likely that further debate will result in a consensus enforced by the legislative and judicial branches of government.  But what criteria should be used to determine the level of risk that police officers may be exposed to before using force? 

Under our democratic/retributive justice system, the established standards will likely be influenced by a variety of non-objective factors such as the public's fear of police brutality, their desire for safety, the cost of lawsuits from police actions, and the political gain politicians find from pushing more or less draconian policies.  Notably, police officers are only held responsible for injuring others only if found guilty of a miscarriage of justice, that is, willful malice or negligent behavior in the performance of their job.  This provides an incentive for the judicial branch to minimize liability by maximizing the leeway officers have in deciding whether to use force.

Contrast the retributive system of the criminal justice system with the strict liability restitution convention found in civil law.  Under strict liability, it is not necessary to find a party guilty of malice or negligence, only of fault.  Perpetrators of damages arising from inherently dangerous activities are responsible for damages regardless of whether they acted improperly.  Drivers at fault for damaging another car or injuring a driver are held financially responsible regardless of whether they acted maliciously or negligently.  Under a strict liability standard, a police agency would be held responsible for personal injury and property damages if an officer injures an innocent suspect, or unnecessarily injures a criminal -- even if the officer acted properly in the performance of his duty.  For example, an officer who fires at a guilty suspect who poses a real threat would not be liable, but an officer who fires at a suspect who does not pose a threat will be held liable for damages whether the officer is guilty of a miscarriage of duty or simply made an error in judgment.  Furthermore, such a system might repay defendants who are exonerated at trial for their time and suffering.

One concern with a strict liability standard is that it would greatly increase the financial risk faced by police departments and courts.  But by placing the burden of minimizing costs on the judicial agency, a strong incentive is created to minimize mistakes - and therefore costs.  It is likely that police departments would attempt to insure themselves against risk, and the insurance agents would in turn establish guidelines which seek to minimize their exposure.  Such guidelines may ban tasers because of their health risks - or they may require them in most situations where deadly weapons were formerly employed.  Police agencies may also prefer to hire men because they would find it easier to tackle suspects or women because they are better at resolving conflicts peacefully.  Police agencies would be free to experiment on the most economic way to perform their jobs, while the public they protect would be insulated from their mistakes by a strict liability standard.

Another concern with strict liability under the current legal system is that it would make police agencies averse to enforcing laws which are prone to mistakes or unsuccessful prosecutions - namely, those known as "victimless crimes."  Adultery,  gambling,  homosexuality,  and the trade of illicit substances and goods are areas where the lack of a victim makes errors in suspect identification and successful prosecutions especially likely.  This is especially true of laws pushed by vocal voters on unwilling recipients - for example, communities which favor drug or alcohol prohibition on communities which tolerate drug and alcohol users. 

Yet this only illustrates the failure of democratic processes to establish economically efficient laws.  If enforcement agencies are required to pay for their mistakes, they will favor enforcing laws which can be objectively enforced and violations of which result in victims pushing for enforcement.  A private legal system based on the principle of restitution is much more likely to provide this incentive than our current system of criminal retribution.