Charges of “that’s illegal!” don’t seem to stick across the political divide. When the left charges Trump with illegal acts, the right points out Biden’s student loan forgiveness program. If a Democratic president were to issue an executive order confiscating all semi-automatic firearms, she would incur the wrath of a very active political constituency, but a Republican president who issued an order preventing birthright citizenship gets one pedantic justification after another from the same constituency.
Is everyone just a hypocrite, embracing the rule of law when they like an outcome, and dismissing it when they don’t? Should we just live with the fact that charges of illegality no longer hold any normative weight across our deep ideological divides? The answer is no to both. Being selectively outraged about violations of the law doesn’t make you a hypocrite. Rather, it tells us something deep about the rule of law. The rule of law requires enforcers to exercise discretionary judgment, moral judgments about which legal violations require prosecutions, and which ones get a pass. And it requires that wise citizens who do the voting and lobbying do the same.
Everyone knows that laws in the U.S. are sprawling and varied. There are laws prohibiting murder and mayhem, and laws about the acceptable size of holes in Swiss cheese. There are constitutional laws viewed as sacred by particular political constituencies (like the Second Amendment or the Fourteenth Amendment) and amendments everyone assumes are unworthy of either attention or enforcement (like the Third). There are felony and misdemeanor laws, regulatory laws and contract laws, just laws and unjust laws. Knowing this, being “against the law” covers so much ground that outrage at every violation makes no sense to anyone. People always use extralegal or nonlegal judgment to determine the wrongness of lawbreaking, and that is a good thing.
Consider so-called “illegal” migrants. These are people who range from someone who is running fentanyl-laced meth into the country, to someone who took a part-time job as a barista while on a student visa. Some people who break immigration laws really are analogous to invaders in one’s own home, others are analogous to people who didn’t file a permit properly for a new patio. To treat all laws as the same, and to insist on mandatory enforcement of every law on the books, is a form of legalism no one wants to live under. Every jaywalker would need to be ticketed, everyone’s bank accounts would have to be surveilled. Exercising discretion in the face of a legal violation shows we are moral human beings, not rule-abiding automatons. We are showing that we recognize moral differences where they exist. The crime of slapping another person on a plane is the same under federal criminal law as an obscene gesture at a horse in a national park, but no citizen with common sense should be equally outraged at these two crimes—much less the federal marshal or park ranger in charge of enforcing the laws that apply to them. When we see our fellow citizens advocating punishment for some kinds of crimes (while letting slide many others), we should not conclude automatically that they are hopeless hypocrites driven by mere political motivations. They might be hypocrites, or they might have coherent and defensible underlying moral and political philosophical views about why certain laws should receive only selective enforcement, while others must be enforced.
The kind of debate we should be having in public discourse is what kinds of extralegal reasons are legitimate and illegitimate when exercising discretionary judgment in law enforcement. Suppose you think a prosecutor is pursuing a case only because it helps them win a re-election, or you believe the case against Eric Adams is only being dropped because of a quid pro quo deal with the Trump administration. These are indeed extralegal reasons for pursuing or dropping prosecution, but that does not automatically make them illegitimate. For example, there is a very rich history of prosecutors using very explicit quid pro quos with defendants. Prosecutors very often drop or reduce charges in exchange for information, cooperation, maybe even an agreement to do various kind of undercover operations on behalf of law enforcement. These kinds of deals have nothing to do with how strong a case the prosecution has on a defendant, and 100% to do with what the defendant can do for the state. That is as quid pro quo as it gets. Now, having been convinced by philosopher Luke Hunt, I have many reservations about a lot of these kinds of deals, and for that reason I have a strong objection to the dropping of the case against Mayor Adams. But plenty of other people have no objections to quid pro quo deals in general. For instance, you might support dropping charges against one of Eric Adams’ underlings in exchange for information about his corruption, while disapprove of dropping charges against him in exchange for his cooperation with Trump on mass deportations. If this is your stance, then you have no objection against quid pro quo deals. You simply have a different moral standard for when they are permissible.
There is another charge I hear, that “solely political prosecutions” are objectionable, such as the use of prosecution to win an election. I don’t like these either, and no prosecutor would admit to doing it publicly. Put privately, I once spoke to a progressive DA who was convinced his opponent in the next election was very bad for the problem of mass incarceration. The local jails were already overflowing, and the case backlog was two years long. His opponent advocated using a law that automatically enhanced sentences for people with “gang-affiliations” who commit crimes, where the language of the law permits prosecutors to take very wide or very narrow interpretations of “gang-affiliation,” as well as use their discretion to determine whether the crime committed constituted a “gang-related” crime. While originally passed to target gang-activity, the law allowed prosecutors to enhance sentences against mere shoplifters who happened to have a cousin in a gang. This DA was very concerned that if his opponent won, the community would see a lot of kids unfairly and unjustly getting enhanced sentences, ruining their lives. In the middle of the election, a local celebrity committed a domestic crime and was up for prosecution on charges he (the DA) probably would otherwise drop. During the campaign, the DA was relentlessly attacked in the press for being “soft” and ended up prosecuting, giving the local celebrity a deal involving probation and community service. To this day, he isn’t sure how much he was motivated by the re-election campaign. He likes to think it didn’t influence his ultimate decision. But assume that, as a matter of fact, the re-election was determinative. If we peered deep into his mind, we would have seen that he felt this prosecution of the local celebrity for a minor crime with a minor punishment was a small price to pay for winning re-election and thus saving a bunch of kids from criminal records they didn’t deserve. The celebrity did commit the crime after all. Okay, so was this bad because it was a “political” prosecution, originating in a desire to win an election?
Extralegal/nonlegal reasons for selective enforcement run the gamut. Failing to prosecute drug crimes you think are out of date is using nonlegal reasoning in exercising discretion. Even reducing the number of prosecutions to reduce the jail population during a pandemic is an extralegal reason. Being extralegal does not make a reason for pursuing or dropping a prosecution illegitimate, or contrary to the rule of law. It means we need to dig deeper into the moral principles underlying extralegal reasons to determine whether a discretionary judgment is right or wrong. Philosopher and former police chief Brandon del Pozo has advocated Rawlsian public-reason tests as the right way to exercise discretion in policing. Libertarians or utilitarians might offer others. Understanding and systematizing our own principles of discretionary judgment and those of our political opponents will at least let us move past the unending charges of hypocrisy about the rule of law.
Barry Lam
Barry Lam is a professor of philosophy at the University of California, Riverside, and the host and producer of the Hi-Phi Nation Podcast, a show about the moral and philosophical issues implicated in science, law, and everyday life. His new book is Fewer Rules, Better People, published by Norton.
