Gov. Tim Pawlenty raised an interesting question when he proposed that anyone arrested for political protest activities be charged some sum of money to offset the costs of police, jail and court resources.
While the governor’s proposal has economic merits, the criminal justice system is caught in a “liquidity trap.” It does not have the resources necessary to try or convict unlawful protestors or other petty criminals so that court costs can be imposed.
From an economic point of view, law enforcement and the administration of justice are “public goods.” They are economic services that make society better and that free markets fail to provide spontaneously. But even though government can make society better by enforcing laws and running courts and prisons, there is no economic reason why all the funds for doing so should come from ordinary taxes.
Crimes, including those associated with political protest, impose “external costs” on society. A thief who breaks into a car, a vandal who defaces someone’s property and a protestor who blocks others from going about their normal activities all impose costs on others.
The classic economic response to external costs is to impose a tax or fine on the person or entity responsible. If a factory spouts pollutants, it is forced to pay a tax or fine.
It is entirely consistent to fine criminals, including protestors, for the societal cost of their actions. Individuals found guilty of crimes frequently are assessed “court costs.”
As long as fines to cover arrest, jail and court costs for illegal acts while protesting are administered evenly, they would in no way violate constitutional guarantees of free speech and peaceable assembly. And they would correct a bad set of economic incentives just as emissions taxes correct pollution.
As long as the personal costs of civil disobedience consist of being carried to a police bus and a couple of hours in a holding cell before having one’s case dismissed, many activists will see themselves as the Gandhis of our age. Paying a few hundred dollars in court costs may separate those with deep moral feelings from the merely exuberant.
And yet, we will never be able to charge people fees for simply for being arrested. The very idea is Orwellian. Being arrested for breaking a law in the course of protest activities is different from being found guilty of that crime. So, assessing law-breakers for their own criminal justice costs is predicated on their pleading guilty or being found guilty at trial.
U.S. constitutional safeguards to protect the innocent place a heavy burden on the prosecution. It takes time and money to assemble a case that will stand up in court even for such protest infractions as blocking traffic or trespassing.
When the Supreme Court sets constitutional standards for arrest and conviction, it takes no account of any limits on the resources that society is willing to spend on the justice system. Congress, state Legislatures and other elected bodies have to weigh spending on police and courts against a host of other social needs.
Pawlenty favors less spending on courts and prisons. In the face of such resource limits, police officers, prosecutors and judges make daily decisions about how to use the funds and people available.
If courts mandate extremely costly rules of evidence and legal protections for those charged and tried, judges and police officers have to respond by exercising some discretion in terms of who they arrest and actually bring to trial.
Many arrests end in a plea bargain. No one is particularly happy with the outcomes of many plea bargains but it is the common sense outcome of a criminal justice system that simply does not have the money to try every case.
Regardless of what Pawlenty proposes in fining lawbreaking political protestors, prosecutors and judges will continue to drop charges or dismiss cases if they feel that pursuing the matter is a poor use of the limited resources available. And, in doing so, they generally will be wise stewards of their public responsibilities.
© 2003 Edward Lotterman
Chanarambie Consulting, Inc.