Because most philosophies that frown on reproduction don't survive.

Monday, May 03, 2010

What If A Law Can't Be Enforced?

The discussions here about Arizona's new attempt at enforcing immigration law have set me thinking about a more general question: What should we do as a body politic in a situation in which a law we have passed seems impossible to enforce?

In a sense, no law is enforced perfectly. Cannibalism is against the law, yet it does still, on rare occasions, happen that someone kills and eats someone else. We don't generally describe this as the laws against cannibalism "not being enforced". Rather we describe it as someone breaking the law.

When we talk about a law not being enforced, we generally mean that a lot of people are breaking it, and yet few of them seem to be suffering the consequences. Thus, although murders take place on a daily basis in our country, we generally do not hear complaints that no one is enforcing the laws against murder, since we at least see the police and prosecutors going through the process of trying to arrest and prosecute people for those crimes.

According to the criteria I've listed above, two obvious candidates for laws "not being enforced" would be our laws against narcotics and our immigration laws. While staggering amounts of resources are devoted to enforcing both of these, most of us have known people who use drugs at least occasionally and seem to face no legal repercussions, and most of us have met a fair number of illegal immigrants who, by their presence, clearly have not been deported. When we turn to the news or to studies, we find our impressions supported with data showing that vast numbers of people use drugs and large numbers of illegal immigrants are in the country. This causes many people to conclude that these laws are not being enforced, or at least not enforced sufficiently.

But there are other laws which are flaunted at least as often (and have a far smaller percentage of infractions punished) than these laws which do not cause us similar levels of concern. For instance, speeding laws are routinely broken. Police often won't even pull someone over unless he is going 5-10 mph over the limit, even though technically any speed in excess of the limit is an infraction of the law. And numerous speeders are never seen by a policeman. Another example is the drinking age. Sure, plenty of people are punished for violating the drinking age, but the number of times someone under 21 drinks beer or wine is vastly more. And frankly, most people really couldn't care less if somewhere a 19-year-old is quietly having a single beer in the confines of his home or dorm room. In cases like the speed limit and the drinking age, people clearly aren't concerned if many infractions go unpunished so long as the general norms they seek to enforce seem to be basically in place. (With the drinking age, it's hard to see how even that is the case, but for whatever reason, it's not considered a national emergency.)

I would argue that immigration and the drug laws actually have something in common with the drinking age and the speed limit in that truly enforcing these laws to the extent that 90%+ of infractions were punished would require such incredible excesses of an intrusive police state that we would consider the side effects worse than the cure.

Now, I'll start with the less controversial examples: While I could support lowering the drinking age a few years, or raising the highway speed limits a little, I have no problem with those laws existing despite the fact they cannot be wholly enforced. Even with insufficient and at times inconsistent enforcement of these laws, there do serve a social function and value. Thus, in their regard, I think it's okay to have laws which it is impossible to fully enforce.

But what of drug laws and immigration laws -- laws which arguably deal with issues which can have graver impacts to society and to individuals?

While I understand the argument that the "war on drugs" has caused far more suffering than either legalization or lax enforcement would (since it creates a niche in which the drug cartels thrive) I must admit that I am also hesitant about the idea of legalizing drugs. Yet it's hard to see how "we should fight harder" is the answer here. While I don't feel bad about killing or jailing members of the drug cartels, our fighting them seems to enable them more than defeat them (perhaps because defeating one group just helps one of their competitors.)

With immigration, given that we have a 2000 mile land border with Mexico, plus access to both coasts by sea, it's hard to see how any amount of resources spent on enforcement could truly stop illegal immigration from Mexico. The US is simply too attractive, and too many American employers are happy to not ask questions when it comes to hiring cheap labor. I'm sure that we could have better enforcement than at present, but there really is a limit to how good it could ever be. And yet, even as an advocate of far looser immigration restrictions, it's hard to say, "We'll institute better laws, but we'll never be able to enforce them anyway." Though even imperfectly enforced immigration laws surely have some utility. While imperfect enforcement benefits law breakers while disadvantaging those who follow the law, no immigration laws at all could clearly result in a much greater influx than we currently see.


Bruce said...

Although Mexico is a powder keg, the next illegal immigration wave is coming from southeast Asia. Our failure to get some form of manageable immigration enforcement in place has the potential to make large areas of the US ungoverned space.

Anonymous said...

Re: drug laws - it is inaccurate and damaging to treat all illegal drugs as though they were the same. Marijuana, LSD, and ecstasy are all less toxic and less addictive than alcohol or tobacco. On the other hand, heroin, cocaine, and methamphetamine are all more toxic and more addictive than alcohol or tobacco. Changes to the law that would bring our enforcements in line with reality spring readily to mind, though I will freely admit that I don't expect to see such changes in my lifetime, politicians being the way they are.

Re: immigration - what we are seeing on our border is the free market at work. Mexicans cross the border because they want to do work in exchange for money in order to support their families, and they believe (accurately) that their prospects of accomplishing that here are much better than there. Why Americans have a problem with this is a mystery to me: any economist will tell you that people who work hard for pay raise the productivity of the entire nation and thus make all of us richer. This is not a zero-sum game, not even close. But I do not expect to see our immigration laws changed in a manner calibrated to make us all better off. Politicians being the way they are, I actually expect to see draconian measures similar to Arizona's new law enacted in other states, trampling on equal rights and punishing people who have demonstrated a willingness to work hard and provide for their families. Alas.


Anonymous said...

I'll agree with Joel on the free market being at work in illegal immigration. When it makes sense to hire someone only if you can pay them $5 an hour, there seem to be fewer consequences to hiring an illegal immigrant than to hiring an American who you can legally pay no less than $7.80 an hour, including SSI and Medicare tax. I'd be curious to see if illegal immigration would shift at all with the eradication of the minimum wage, i.e., would Americans take those jobs? My guess is "no" because of the built-in incentives (in the form of welfare) for not working for a low wage.

If Congress were really interested in stemming illegal immigration, I think they would have to eradicate both the minimum wage and a lot of the benefits of not working. Since that will never happen, illegals are a necessary part of our economy.

Darwin said...


Mexicans cross the border because they want to do work in exchange for money in order to support their families, and they believe (accurately) that their prospects of accomplishing that here are much better than there. Why Americans have a problem with this is a mystery to me: any economist will tell you that people who work hard for pay raise the productivity of the entire nation and thus make all of us richer.

I agree that immigration is the natural consequence of the wage disparity between the US and Mexico, and that we should simply open up and let it happen. (The problem, after all, is not immigrant workers, but cross border crime organizations -- a separate issue.)

As for why people are upset about it, when you get down to it many of the same people are upset about many other aspects of free trade as well. Many people only like those aspects of free trade that they see as immediately benefiting them (in a small frame of reference) and try to fight back against the rest. Unfortunately, that seems like a permanent fixture of our political dynamic, since it is so very human.

On drug legalization -- I don't have an opinion, honestly, as to whether various "soft" drugs are less addictive and harmful than alcohol or tobacco. Clearly, the reason those latter two are less regulated is that they have a long history in our culture while pot and LSD don't. (Heck, I've had people tell me that if it were invented today caffeine would be illegal, but here I am on my second cup of coffee while I type...)

Anonymous said...

* puts on white lab coat * Forgive me, sir, but whether you have an opinion about the relative harmfulness of various drugs is not relevant. The fact, as demonstrated through repeated and widespread clinical trials, is that many illegal drugs (like ecstasy) are less harmful than legal ones (like alcohol).

The trials to which I refer have been performed mostly in western Europe. It is nearly impossible for American researchers to conduct legitimate research into the effects of drugs, since the War on Drugs makes it egregiously difficult for researchers to get funding and approval for protocols for drug research. I have found much more valuable information in Lancet than in any American journal. Which is sort of embarassing.