In this season of charity, I’d like to talk about the fate of the less fortunate to make clear how our politics has been turning a blind eye to the damage it does.
When we aren’t responsible for the costs imposed on others, we will continue to hurt them. Economists call that externalities. Businesses don’t have to pay for the effects on our environment so most businesses continue doing global damage just as much as if they were perfectly benign. Forcing businesses to pay for workers’ injuries, forced them to take account of ways they could save money by protecting their workers – not out of the goodness of their hearts but because the legal system said they had that responsibility. When costs are internalized, they result in better overall decisions.
In the law of eminent domain, cities have to pay for taking people’s property regardless of how wonderful their plans. They have to internalize the costs their plans will do to the owners of real property. When they did urban renewal, the cities didn’t have to pay for the businesses whose customer base was destroyed, and they didn’t have to pay for forcing people into much less safe or appealing housing or projects. So cities avoided taking high priced real estate but they freely wiped out the businesses of the most vulnerable. Those costs were externalized, imposed on other people who had no choice in the matter.
In fact our system makes scores if not hundreds of thousands of innocent victims with no thought of internalizing the damage and paying any form of compensation.
When an individual is wrongly imprisoned for a quarter century and is lucky enough for someone eventually to find a way to convince the courts to let him out, with DNA or other conclusive evidence, that individual has to prove that someone was not only derelict in his or her duty, but did not have one of the many privileges that the law gives people in the criminal justice system, or that the city or state was derelict in its duty of supervision and training, before that individual has any right to compensation. Everyone in government gets to smile and say justice was done while continuing to do the kind of careless investigation and sometimes deliberate withholding of evidence that kept people in prison. They aren’t made to internalize the costs of their misbehavior.
Would police departments be so happy to retain police officers if the department budget took a big hit every time a cop guessed wrong and shot an unarmed civilian? Or would the department institute practices to make that stop?
In fact our law makes the victim or survivors prove specifically what the city should have done in training or by regulation or what the officer should have done under the circumstances. Asking only whether the officer’s behavior was reasonable, the law doesn’t take account of the reasonableness of the victim’s actions. In other words, instead of making the officer and the city responsible for their mistakes, it puts the risk of police error on the individual.
Of course that is typical of American law – protect those who don’t need it but leave the vulnerable in the gutter with a sheet and a prayer. There’s little justice in America for the vulnerable.
Steve Gottlieb is Jay and Ruth Caplan Distinguished Professor of Law at Albany Law School and author of Unfit for Democracy: The Roberts Court and the Breakdown of American Politics. He has served on the Board of the New York Civil Liberties Union, and in the US Peace Corps in Iran.
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