I break unjust laws all the time. Though I’m proud of my law-breaking, I don’t claim to be especially courageous. News flash: I’d rather live on my knees than die on my feet. After all, I’ve got a lot to live for.
Why then do I choose to be a righteous scofflaw? Because the expected punishment for breaking the kinds of laws I break is very low. Government enforcement is rare, and even if I get caught, the sanction will probably be mild.
Which raises a puzzling question: Why are so many laws backed by such trivial punishments? If politicians think that a law is worth passing, why don’t they automatically conclude that it’s worth assiduously enforcing?
You could just blame noise: Sometimes government sets punishments too high; other times it sets punishments too low. But once government sees widespread violation of a law, why don’t they rush to adjust punishment upward? The kinds of laws that I break have had token expected punishments for as long as I can remember.
You could insist that enforcement costs are often too high to induce obedience. But as Becker pointed out long ago, you can compensate for low detection probabilities with draconian punishments. Indeed, if the draconian punishments are hefty monetary fines, the fiscal cost of enforcement is typically negative.
So what’s really going on? Well, suppose the government announces that it will seize people’s homes if they failed to follow a new regulation: “Obey or lose your home.” And then the government actually follows through. You watch the news and see the government seizing a little old lady’s house. Even if the regulation saved a million lives, people would despise the politicians responsible. “Seizing homes saves lives” simply sounds bad; if it’s true, it is an ugly truth. And as the research on Social Desirability Bias reveals, people hate ugly truths. They don’t like to say them, and they don’t like to believe them.
When I discuss Social Desirability Bias, I normally focus on its bad effects. It is Social Desirability Bias that leads government to look at every social problem and say “Something must be done!” – even though the best remedy is usually to leave well enough alone. Still, I have to admit: Social Desirability Bias also loosens the shackles that it places upon us.
Social Desirability Bias prevents business from building new homes: “Horrors, these greedy fatcats want to destroy the character of the neighborhood!” But Social Desirability Bias also prevents government from crushing homeowners who illegally improve their properties. If you want to add a bathroom without proper permits, just go for it. You’ll almost certainly won’t be caught – and even if the government finds out, they probably won’t do much about it. So why not? Because deploying effective enforcement techniques – surprise home inspections to detect, home seizure to punish – sounds very ugly.
Social Desirability Bias prevents immigration: “This is our country, our culture, and our economy – and we intend to keep it that way.” But Social Desirability Bias also prevents government from ending illegal immigration once and for all. East Germany shows that strict border control is totally possible. Don’t just build a wall; build a wall with self-firing machine guns. Once you combine this Wall of Death with surprise home inspections and long prison sentences for anyone who employs illegal immigrants, violations will practically disappear.
So why not? Because these brutal measures – the very measures you need to earnestly enforce your immigration laws – sound monstrous. Instead, we combine absurdly restrictive laws with loopholes as massive as they are bizarre. Jose Antonio Vargas has publicly declared himself “undocumented.” He’s easy to locate. But even Trump didn’t try to deport him, because even Trump didn’t want to look like such a monster.
The same naturally goes for Covid regulations. Social Desirability Bias yields absurdly strict laws: “If it saves just one life.” Yet Social Desirability Bias also prevents the merciless enforcement necessary to achieve compliance with these absurd laws. Recently at the airport I saw ample unmasked faces. If the government had picked out a random scofflaw and hauled him off to prison, the whole airport would have kept their masks on. If the government arrested a hundred such people nationwide and held a press conference vowing to hand out a thousand years of prison time to these “mask criminals,” every airport in America would approach 100% compliance. But that ain’t gonna happen.
And let’s not forget tax evasion. Social Desirability Bias is the foundation of popular “tax the rich” policies. Yet taxpayers have countless ways to fudge the numbers (can you say, “Self-Employment,” children?), and to stop this fudging the IRS would have to get medieval. As a result, persecution of the rich co-exists alongside quiet yet ubiquitous defiance.
Key caveat: For real crimes like murder and rape (as well as a few fake crimes like drug-dealing), strict enforcement is almost as crowd-pleasing as the laws themselves. For this subset of offenses, “Lock ’em up and throw away the key” prevails. And of course as social media reminds us, the government occasionally enforces a random regulation with Kafkaesque determination.
Normally, however, we are freer than the law admits. Demagogic policies surround us, but no true demagogue enforces them strictly. The result: As long as you don’t call too much attention to yourself, you can pick and choose which laws to follow at surprisingly low cost. So, I ask you, why not follow your conscience?
READER COMMENTS
Evan Sherman
Oct 6 2021 at 10:58am
I’ll never forget what a former boss said in a moment of honesty: “Culture eats policy for breakfast.” It was striking because he made the observation in the midst of a meeting dedicated to introducing new policies that were supposed to radically improve workflows. (Spoiler: they didn’t radically improve workflows.)
So much ink gets wasted discussing politics under the tacit premise that “Policy to prohibit X behavior will result in the complete elimination of X behavior” (or the inverse for prescriptive policies). Just dumb to disregard the cultural status quo from the policy analysis, but the chattering class does it all day every day.
Jon Murphy
Oct 6 2021 at 11:32am
This is interesting analysis. I wonder if it helps explain certain enforcement mechanisms. If we take your masking within the airport anecdote as given (my own experience has been a little different, but that’s irrelevant to the point I am making) then let’s consider the following:
Mask mandates are not too strictly enforced in the airport, an area that falls under the jurisdiction of the TSA and other federal agencies. If the mandates were enforced there, blame (or praise) for the enforcement would fall on the Federal government.
However, masking is strictly, and often draconically, enforced on the airplanes themselves. People have been arrested, banned from flying, etc., for not wearing masks. Additionally, the enforcement has often gotten violent.
However, in the skies the enforcement falls on the airlines. My understanding from my brother (who is a commercial pilot) is that the FAA is threatening the airlines and the individual crewmembers with massive fines, jail, or revoking their licenses if they do not enforce the mandates. Thus, they face prohibitively high penalties, and thus they enforce the policies draconically.
Following Bryan’s comment, I offer the following hypothesis: the Federal agents know how unpopular these rules are. Thus, to shield themselves from blame, they require non-governmental agencies (in this case, the airlines) to enforce their rules by threatening their livelihoods. Second-hand enforcement.
David Henderson
Oct 6 2021 at 1:30pm
Great insight, Jon.
Knut P. Heen
Oct 6 2021 at 11:34am
My impression is that many voters do not realize that the law must be enforced to be effective. I don’t like X, therefore X must be illegal seems to be the idea. Some people even argue that the law itself would stop people from breaking it. The idea being that the law is some kind of moral code almost everyone will follow. A rational politician may thus create a law without punishment and enforcement in order to satisfy these voters.
Try telling the right kind of people that criminals will own guns even if it were illegal to own guns. They don’t want to believe it and will object.
Floccina
Oct 6 2021 at 5:34pm
What shocked me was how anti-abortion activists backed away from punishing women who abort when Trump said there should be some punishment.
Trump Backtracks On Comments About Abortion And ‘Punishment’ For Women
Made me consider maybe the politicians should write a law making all abortions illegal but with no enforcement and no punishment. 0 years in prison.
You could say if a woman gets and abortion for the next 5 years if she gets pregnant she will have to carry to term and give the baby up for adoption but social desirability bias.
Aaron Stewart
Oct 6 2021 at 12:44pm
Change my mind if you can, but I tend to think that the state should be constitutionally obligated to enforce all laws whenever practical. (That’s the simple way to phrase it, not the way that captures all the little nuances)
Having laws that are seldom enforced implicitly gives the state the ability to choose when and who to inflict enforcement upon — a power that it is happy to wield, because it can be used as leverage to enforce non-laws (i.e. “You did a thing we don’t like; I’m going to find a way to punish you”).
Having laws that are seldom enforced also provides for the environment we live in where absurd laws are enacted and lived with due to the tacit understanding that enforcement is unlikely.
Take speed limits (in the US) as an example. How strictly speed limits are enforced certainly varies geographically, but I’ve not been anywhere that they are strictly enforced. And it isn’t just an issue of detecting violations. If I drive through a speed trap on the interstate going less than 10 MPH over the speed limit, I have essentially zero concern that I will be pulled over. As far as I can tell, almost everyone does this.
So, the trouble isn’t that they have trouble detecting violations, the trouble is that there is such a mismatch between the law as-written and peoples’ behavior that enforcement has “optimized” around only enforcing gross violations. This manifests as officers being allowed discretion in when they enforce the law and who they enforce it at.
Having speed limits that are generally not enforced unless you’re going way over the speed limit has a few impacts, as far as I can tell (I’m sure this has been studied rigorously — this is just my observations and thinking).
Mismatch between stated and revealed legal preferences.
In some sense, our laws are a statement of our collective preferences. They are how we collectively (although through a non-consensus mechanism) claim to want people to behave, through prohibitions or induced obligations.
On the one hand, the ubiquitous violation of speed limits clearly reveals that we collectively, as drivers, do not agree with the rules (that we created) as stated. This is as contrasted with, say, murder, which all but a few of us assiduously avoid. You might dismiss this as a mismatch between the preferences of the few people that actually decide the speed limits and drivers as a whole, but I’ll bet my left arm that most of the people that set the speed limits also violate them regularly.
On the other hand, the sparse enforcement of speed limits, combined with our collective lack of will to change them, also demonstrates a mismatch between our stated preferences in our collective capacity as law-makers and our revealed preferences in our collective will as law-enforcers.
It makes no sense to me that we should neither want the law to be enforced nor changed so that the typical behavior of the median citizen is not an act of lawlessness.
Arbitary enforcement.
Having law violations be both ubiquitous and unenforced gives those tasked with enforcing the law tremendous power to choose who to enforce it upon. Compare with an alternate universe where cops are legally obligated to enforce speed limits when detected, no matter how minor the violation. In this alternate scenario, except where many vehicles are simultaneously present and speeding (note that we shouldn’t expect most cars to be speeding in this alternate universe where speed limits are actually enforced!), officers have very little scope to choose who it is being enforced against (without violating their own obligations).
Back in our actual universe, on the other hand, an officer running a speed trap has a veritable feast before her. Since the choice of who to pull over and give a citation to clearly isn’t being based on whether the law is violated, it necessarily must be based on something else.
What is that something else? Who is to say do we actually have data on this? Maybe some officers resentfully train their sights on the drivers of fast, expensive cars. Maybe some officers target cars with out of state license plates. Maybe another officer selectively targets cars with bumper stickers that announce the wrong political leanings. Maybe other officers choose based on the color of driver’s skin. The best among terrible options might be targeting those that are violating in the most major way — which I’m certain is what they’ll all claim to do.
In any case, this demonstrates a discrepancy between stated rules and revealed rules, which has only bad implications for the rule of law generally.
Opens up possibilities for predation.
The revenue generated from speeding fines is a flow of value. That value flows somewhere. If any of that value ends up somewhere downstream in the hands of those tasked with enforcing the law, then we have a situation where those enforcing the law are incentivized to have people breaking the law.
By way of analogy, consider an idealized scenario in which there is a large forest filled with lots of deer, and a nearby community which relies on hunting deer for meat. In this analogy, writing a citation for speeding is akin to successfully killing one of these deer. Strict enforcement of speeding laws, then, is akin to hunting the deer population to near extinction, which is obviously bad for that community in the medium to long term. Instead of hunting to extinction, the community should choose to regulate and manage hunting to make sure there’s an ample supply of meat which is easy to obtain going forward.
A world in which law violations are ample and enforcement sparse is a world in which the community (law enforcement) can harvest the deer (citizens) for meat (money) at will. So long as enforcement remains sparse, there will always be low-hanging fruit to pluck. If enforcement becomes ubiquitous, that sweet, sweet meat supply will dry up very fast.
Abandonment of the idea that laws should actually represent a collective formal contract.
Last but not least, our lack of collective will to insist that the laws be enforced as stated is incompatible with the idea that laws are a contract representing the collective will. Instead, laws (as stated) become an informal suggestion. “Speed Limit 65 MPH” is then akin to “Please recycle after use” or “Don’t be vulgar at a dinner party”. People see that speed limit sign, translate it through their internalized model of the cryptic, actual rules and think “Real Speed Limit 80 MPH”.
The body of law, then, is just one more device through which we can collectively signal to each other and to the world how we would like to be seen, rather than how we actually are.
This is a slippery slope into a world where we’ve abandoned the norm that laws should even make sense. When you know that laws are going to be enforced as written, then it’s hella important that the laws be both comprehensible and reasonable. “Don’t like smoking? Cool, let’s make a law that says smoking is illegal. We won’t enforce it, of course, but at least that way people will know we don’t like it!”
When was the last time you were consulted about the speed limit on the highway you take to get to work? Never, right?
When such a stark contrast exists between the behavior of the median citizen and the laws as written, how can there be any expectation that most people even agree with any laws?
What is the point, for the the vast majority of citizens, of paying attention to proposed policies or legislation when there’s no expectation that the new policies even represent anything real?
It all seems perfectly designed to flood a person’s common sense with noise, such that they no longer trust their own sense of what is reasonable.
Arbitrary enforcement of laws is a strong suggestion to the median citizen to ignore the process by which laws are enacted and in doing so abandons civilization to
narrow-minded technocrats — “We may as well let the CDC set public housing policy, it’s not supposed to make sense to us normal people anyway”
intransigent minorities — “Yeah, my university’s Number Studies department has decided that the symbol for the number 8 is sexist because it sort of looks like balls. They want it to be considered hate speech. That’s fine, I guess, it probably won’t be enforced anyway”
lobbyists — “Yeah, we’ll just throw this extra little regulation into our policy. We’ll tell them it’s about protecting children. It won’t make sense, but they won’t question it because they’re used to that.”
and other vested interests.
Steve Bacharach
Oct 6 2021 at 1:12pm
I don’t dispute the thrust of your arguments, Aaron, but it seems like you’re basically advocating for policies that can be enforced with zero tolerance. I’ve been a public school teacher for 25 years, and enforcment of rules and norms is a large part of my job. Zero tolerance just does not work in my environment. There are just too many individual circumstances to take into account.
robc
Oct 6 2021 at 1:33pm
I think that goes with my idea that any criminal (including fines like speeding) acts should require a near unanimous (lets say 95%+) vote to pass but only a majority to remove.
We shouldn’t make any act a crime unless it is clear cut, enforceable, and the vast majority of people think its an immoral act.
Zero tolerance in the schools doesn’t work because the acts aren’t defined properly. If, for example, you have a rule that punching someone gets you suspended, then the zero tolerance problem is that someone who punches their bully gets suspended. The problem isn’t zero tolerance, the problem is the definition of the act. It doesn’t meet my standard above as it is clear cut and enforceable, but fails on point 3.
Josh S
Oct 6 2021 at 5:29pm
Quoting Zizek: “When does one belong to a community? The difference concerns the netherworld of unwritten obscene rules which regulate the “inherent transgression” of the community, the way we are allowed/expected to violate its explicit rules. This is why the subject who closely follows the explicit rules of a community will never be accepted by its members as “one of us”: he does not participate in the transgressive rituals which effectively keep this community together.”
I think that making rules and disobeying them (in a culturally sanctioned way) is a fundamental aspect of culture and community, so attempting to eliminate the enforcement gap is both futile and counter-productive.
To be clear, I strongly concur that there is ample room for improving our laws and enforcement, but at the same time I doubt that mandated strict enforcement would have a positive outcome.
Felix
Oct 7 2021 at 8:58pm
I would take the opposite tack. Void any law which can be shown to be inconsistently enforced, and yes, that includes most traffic tickets. Parking tickets would probably survive, but not speeding tickets. Enforcement doesn’t mean convictions per se; catching one out of 10,000 speeders is inconsistent, but investigating and trying to resolve all murders is. But ignoring murders of the homeless is an example of inconsistent enforcement.
I would also void laws which a jury of 12 random adults cannot agree on the meaning of. Give them the law, whatever dictionaries apply, and 8 hours in a room. If they cannot agree on the meaning, out it goes. No appeals; this is for ordinary people to decide, not learned judges taking months.
Kaleberg
Oct 8 2021 at 12:49am
This is one of the big complaints of the BLM movement. The law says you can be fined for driving with a broken tail light, but white drivers are almost never pulled over for having a broken tail light while black drivers, at those with broken tail lights, frequently are. NYC doesn’t allow alcohol to be consumed in public parks, but if you are white and bring a bottle of wine to a concert in the park, no one is going bother you. If you are black or Hispanic and bring a beer to Flushing Meadows, you are likely to get ticketed, and if you argue with the cop, arrested for disturbing the peace.
P.S. A friend of mine was appointed to a state commission and told me that it’s official policy in Washington State that you can’t be pulled over for going less than five miles an hour over the speed limit. She drives 59 mph on the local highway.
James Oliver
Oct 6 2021 at 5:20pm
And it would way less harmful to depart Jose Antonio Vargas, than stop some random Honduran or Haitian from crossing the boarder.
Jose Antonio Vargas has had many years of USA level wages, he speaks English and has fame and valuable skills. He would do well almost anywhere in Latin America.
It’s the same for most of the dreamers.
mark
Oct 7 2021 at 3:13am
I am under the impression that Jose Antonio Vargas (40) is “a Filipino”. His skills in Tagalog – born near Manila – may still be better than in Spanish. (Or not after 28 years in the US.)
Floccina
Oct 6 2021 at 5:38pm
Though I agree a lot with Bryan, due to social desirability bias would less harsh punishment lead to more enforcement with small fines to pay for the enforcement?
BTW IMHO the due to history of inexact speed measurement 5 mph above the posted speed limit is the real speed limit. I think the people who set the limits act on this along with drivers.
Jose Pablo
Oct 6 2021 at 11:05pm
You are underestimating pure Government incompetence (a fatal mistake). You said:
“For real crimes like murder and rape (…), strict enforcement is almost as crowd-pleasing as the laws themselves”
Well, even in those cases, 70% of rapes and half of murders (and 80% of arson crimes) don’t get cleared, like never. So, your chances of getting away with even this type of crimes are pretty good. Take into account that, very likely, the criminals that get caught have an IQ way worse than yours, so, you should be ok even with the “heavy ones”.
Even with the “social desirability” bias by their side, governments are just incapable of doing something remotely close to a decent job.
Monte
Oct 7 2021 at 12:15am
<em>It is Social Desirability Bias that leads government to look at every social problem and say “Something must be done!” </em>
I would argue that SDB leads “We, the People” to ask government to look at every social problem and say, “Something must be done”, whereas government is only too happy to oblige in return for more power and revenue.
We have met the enemy, and they are us…
Thomas Lee Hutcheson
Oct 7 2021 at 6:25am
Enforcement according to cost benefit analysis (including any deterrence benefit) can mitigate laws that do not come out of cost benefit analysis. Immigration law is a good example of mitigation, not that it gets you to optimum.
Pierre Lemieux
Oct 7 2021 at 12:09pm
As usual, cost-benefit analysis is good only if the government decides to impose costs on some people in order to benefit other people. Quoting Anthony de Jasay:
Patrick
Oct 7 2021 at 3:39pm
It seems to me that there is another possible explanation for this behavior, though perhaps not one that is common in practice. Namely, suppose there is a behavior which is slightly, but not extremely, harmful and also hard to detect. It could be the case that the only punishment severe enough to reduce levels of the behavior to near zero would be extremely harsh. If someone believes that it is morally wrong for the punishment for any individual to exceed the harm of the crime (not a totally unreasonable position I think) then they could oppose stricter enforcement of the law while acknowledging that stricter enforcement would be necessary to really get people to follow the law. In such a case you might ask “why not get rid of the law completely then?” However, it is probably true that a law against some behavior, even lightly enforced, reduces that behavior at the margin.
So I think there is a coherent position which would support having some laws that are lightly enforced and frequently violated. As I said however, I don’t think that this explanation is usually the one that holds in most cases.
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