The Consequences of a Law

April 12, 2012

Written in response to the February 26, 2012 shooting of Trayvon Martin in Sanford, Florida, and subsequent media attention on a Florida stand-your-ground law that may bear on the case.

Think about the purposes of a criminal law. One purpose is to define a behavior as criminal, and provide for its prosecution and punishment when the behavior happens. But a greater purpose is to affect people's behavior in ways that benefit society.

Murder laws exemplify the two purposes. All cultures and societies have murder laws. Certainly, they define what does and does not constitute murder, and create a legal environment for prosecution and punishment when murder occurs. But the ideal of course is to help prevent murders in the first place. We hope that fewer people die at the hands of others as a result of the law.

So in designing and evaluating any law, criminal or civil, we need to pay attention to the environment the law creates. We should ask the question, "How might this law change behaviors?" In answering that question, we ought to consider not just the specifics of the law, but the cultural environment it creates—not just what the law actually says, but what people will think it says and means, and how they'll react to it. A law functions not just in courtrooms, but in the minds, hearts and actions of people.

In this light, the various statutes called "stand your ground laws" that have entered the body of law in recent years are exceedingly problematic. As I understand these statutes, they are a reaction to an established principle in the interpretation of existing law, that a citizen confronted with a dangerous criminal situation was expected to flee if possible, and only to use force in self-defense when escape seemed unwise or unlikely.

In a way, that interpretation is similar to an over-arching principle in traffic law, that a driver has a duty to avoid a collision. If another driver runs a stop sign, I don't have license to maliciously collide with him or her; I'm expected to stop or swerve. This interpretation of traffic law not only makes sense, it fits our natural instinct to avoid danger and injury.

Back to the stand-your-ground laws, and my proposed evaluation question: "How might this law change behaviors?" In other words, how will the world be different with a stand-your-ground than without it? Will crime be reduced? Will more arrests be made? Will more criminals be brought to trial? Or will more be summarily killed without being arrested? Will more or fewer people die?

As I suggested earlier, we need to be concerned not only with the law itself, and its wider legal context, but even more with how people perceive the law, and how they'll behave as a result. Will people be less likely to commit criminal acts with these laws in place? Perhaps—or maybe not. It's often difficult to measure deterrent effects of laws.

However, I think it would be difficult to make a case that a stand-your-ground law will improve the behavior of non-criminal citizens. For most of us, it will have little impact. I'm not going to begin carrying a gun if such a law is passed. And if I'm faced with a dangerous criminal situation, I'm still likely to flee, if I can—just like I'll slam on the brakes and steer away if someone runs a stop sign in front of me. But for some few, these laws will change their behaviors, and not positively.

We're talking about the culture of the law, not about its textual specifics. The people who are more likely to carry a gun, and to seek situations where they might use it, aren't likely to pore over the law's wording and consult an attorney about how to operate within its provisions. These people will end their analysis with learning the law's popular name, and listening to a few words describing it on TV.

So, is the unwarranted killing of an unarmed, non-criminal teenager on a dark street more or less likely with a stand-your-ground law on the books? I don't see how there can be an open question. Whether such killings happen frequently or rarely, they will certainly happen. They will happen not because of some failure in the crafting of the laws' language, but because they'll encourage behavior that would otherwise be viewed as reckless and dangerous.

Of course existing stand-your-ground laws should be repealed, and no more should be passed, but also we should take an object lesson from the tragic killing of Trayvon Martin. We have a responsibility to consider any law in its broadest view, and to evaluate it in the context of our broadest values. Are we better with it, or without it?

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