Why I want to do more than just cover my nut...

Are laws really made for people like us?

Donald Black explains the behavior of law, in part, by discussing the horizontal and vertical dimensions. He believes that the greater the distance in these dimensions, the more harshly the law will affect criminal actors. For example, differences in socioeconomic status (vertical) and membership in a particular community (horizontal), could explain the behavior of the law. But what if it is the case that laws do not behave differently? What if laws (or some laws) just don't apply at certain points on the vertical and horizontal dimensions Black discusses.

In January, the last of the sentences for the Columbia students involved in the "Operation Ivy League" drug bust was handed down. In December 2010, the five students were arrested for selling $11,000 worth of cocaine, ecstasy, marijuana, prescription pills, and liquid LSD (which was sold as LSD coated candy). Three of them were sentenced to five years probation. One of them was sentenced to time in a drug rehabilitation center and five years probation. The last one, the student who actually sold the drugs to the undercover officer was sentenced 6 months in prison, but was given credit for time served, and was released by February. He's also on five years probation. If you consider what would have happened if they weren't college students and happened to live on the other side of the park, then it becomes pretty clear that they pretty much got off with no punishment.

If over the summer, one of us were unfortunate enough to get a DUI, or even arrested for possession of cocaine or marijuana, it would obviously be a terrible experience. But I'm not sure much would actually happen as a Columbia Law student. And if you couple one's status as an Ivy League law student, with a higher socioeconomic background, I'm not sure anything would actually happen. You would get a lawyer, explain to a judge how much you regret your actions, and then talk about the whole experience as a "turning point" in your life, when explaining the incident to potential employers. You still go through the "dance" as Robinson would say, you are charged, go to court, get sentenced, etc. But, in the end, it's almost as if it never happened (again, the situation is clearly not ideal, but the incident would hardly be the end of the world). And I don't think it's because the law is behaving differently, I think it's because the law doesn't exist. At some intersection of the horizontal and vertical dimensions of Black, there is no law.

As long as the criminal activity is victimless, I think this proposition is pretty accurate. For situations where there are victims, I think Black is spot on; there is law that is applied, but it behaves incredibly differently across the vertical and horizontal dimensions.

I know Eben reminds us that we should find a way to cover our nut and do good. But with this reality, I want to do more than cover my nut...I want cover my nut ten times over. It protects me, gives me more leeway, and in some cases, exempts me from the law. Unless, of course, we can find a way to change the reality of the way law behaves.

-- KhurramDara - 11 Apr 2012

Khurram - I think your observation is interesting. It definitely seems that law "ceases" to exist once an individual reaches a point on the vertical dimension of social wealth and standing, at least in certain cases. At my undergrad, for example, local police were notorious for busting up parties early in the school year and citing all underage drinkers. Everyone received citations for being a minor in possession, yet the entire purpose of the paper arrest was to funnel those cited into court-mandated diversion programs which students (or more likely their parents) were obligated to pay for in order to get the citation expunged. The city increased revenue, and students' records, employment prospects, and law school applications weren't permanently marred with a misdemeanor. Those students who were cited and completed the training did not, one suspects, stop drinking until they turned twenty-one. I can't say that I know for sure what happens if a local 18 year-old mechanic not enrolled at an elite university is caught drinking underage, though my suspicions are in line with yours that maybe a diversion program is less likely to be offered, through perhaps it's not improbable. I hunted around for some statistics on such programs and came up lacking, perhaps because for privacy reasons the courts don't release such numbers or perhaps because they simply don't keep track.

Where I think maybe your point merits additional analysis is further down the line, when we're looking at someone's second or third "victimless" offense. My hunch is that wealth starts have less explanatory power on how the law operates because once you're a repeat offender sentencing guidelines are more rigid. Moreover, one posits that judges are more likely to conclude that there's a specific deterrent value to your incarceration and that you've wasted you the chance you were previously given. This idea is largely anecdotal, though I will say that from personal experience some of my friends who were cited again for underage drinking found less amenable punishment the second or third time around. Am I just trying to make the system a little bit more just when it inherently isn't? Maybe; I guess it might make me feel better to keep believing that wealth won't or can't entirely explain the way the law acts on an individual.

-- JessicaWirth- 11 Apr 2012

Khurram,

While I understand where you’re coming from completely, I don’t think I can agree that the example you give makes it clear that “at some intersection of the horizontal and vertical dimensions of Black there is no law.” After all, Black does state that “an arrest is more law than no arrest…an indictment is more law than none…etc.” I find it somewhat hard to believe that five years of probation can be equated to a complete lack of law. The fact that police invested time in going undercover for five months to investigate the drug dealing shows evidence of some intended enforcement. The press covered the case—there ought to be some value of deterrence in that. As Black also says: “if a decision is against the plaintiff and he appeals, this is more law, and a reversal in his behalf is more as well.” Law is seemingly operating in absolute values here—more action in either direction equals more law. I would assume that more public notice of the situation leads to more law as well, or at least more interpretations of law.

I see what you’re getting at—that the law has a tendency to skim over the indiscretions of those higher privileged. True, this very well could make for fewer consequences for those individuals, but unless they completely get away with their crimes then the consequence is not null. Even if seems like the situation “is not the end of the world,” it still happened. Also, to maybe get a little abstract, I wouldn’t consider even a “victimless” crime to be completely victimless. There are always indirect victims to crime (imagine the ripple effect of a DUI on a person’s family)—maybe even consider the effect on the accused himself. (Side note: maybe society is even worse off if slack toward privileged criminals is condoned). In this way I think Black’s theory still holds regardless of whether the crime was technically victimless.

It is unsettling to think that people might be able to buy themselves out of prosecution, conviction or consequences, but that doesn’t mean that they can’t get caught. A poor man could also avoid the law. Certainly wealth breeds security, but only to a certain extent. I do see what you mean though—there is a correlation between wealth, power and influence. I think that “chang(ing) the reality of how the law behaves” would require those who cover their nuts ten times over to relinquish that privilege. (This is why I think Eben suggests that a person cover his nut and do good—do good by not covering it excessively for his own protection).

It’s a hard call and I’m sure everyone we know has different ideas about what is the right way to approach the problem, but as I said, I find it very unlikely that law would cease to exist at a certain point because there will always be victims, even if they only exist because law was not applied. Even if a Columbia student feels little consequence of his conviction for dealing drugs, the crime and the situation still happened and will ultimately affect society.

-- AnneFox- 11 Apr 2012