Should an Arrest Carry a Heavier Punishment Than a Conviction?

It’s a simple question. Should an arrest by police carry a heavier punishment than a conviction would? If a person is being arrested for jaywalking, should the arresting officers be allowed to use lethal force when a conviction for the alleged crime would result in nothing more than a fine? I think the obvious answer is no:

Consider what arrests are for. An arrest is not punishment: After all, there has been no conviction at that point. The purpose of an arrest is to prevent crime and to aid in prosecution by establishing identity, gathering evidence and preventing flight. The steps taken to secure arrests therefore must, at every point, be proportional to the suspected crimes that underlie the arrests.

The current police rules of engagement violate these basic principles at every turn. Convictions for jaywalking and selling single cigarettes—the predicate offenses in Ferguson and Staten Island, respectively—effectively never carry jail sentences, and nobody thinks that they should. Fines are the proper punishments for these minor crimes.

But under current law, when the police arrest someone based on nothing more than probable cause of a minor crime, they can treat the wrongdoer more severely than the punishment that would ordinarily be imposed by a court of law, even after a full trial. We believe that the New York Police Department violated current law when Officer Daniel Pantaleo placed Eric Garner in a chokehold. But under current rules of engagement, Garner’s saying “Don’t touch me” unquestionably authorized the police to initiate the use of force—non-lethal force, but still force—to subdue him.

That’s wrong. An arrest should not impose a burden greater than a conviction. When it does, the arrest amounts to police oppression.

You should go and read the article in the Washington Post. It’s an extremely reasonable argument, and I don’t understand why few people are talking about it. The problem isn’t so much racism in the police force. The problem is the fact that the police are legally allowed to do whatever they want in the process of arresting someone, and they are allowed to arrest pretty much anyone for pretty much any reason. Unless you restrain such license, the police will continue to arrest people with more or less lethal force, and they will do it with impunity. Like another reasonable article in the Post mentions:

SWAT tactics, for example, are increasingly used for credit card fraud and other low-level offenses, administrative warrants, or even regulatory enforcement. Use-of-force training today puts less emphasis on conflict resolution and deescalation, if they are addressed at all. The problem isn’t cops breaking the rules—the rules themselves are the problem.


Leave a Reply