"Rule of Law" and Sympathy

We've recently had emotionally charged news stories of children dying of illness despite efforts by border control officials; but emotions were high before, when we saw images of children separated from parents in May, and, during the previous administration, children in cages. Should sympathy change policy? Jeff Sessions, when Attorney General, told his colleagues that letting "sympathy to personal circumstances" influence law enforcement not only sets up "nebulous legal standards" but does "violence" to the rule of law. ( Newsweek, 9/11/2018). Can "rule of law" make no room for sympathy?

By "rule of law," Sessions appears to mean nothing more than government's bearing downward on lawbreakers. By that definition, "rule of law" in America is nothing exceptional. Every tyrant has imprisoned thieves, murderers, and suspicious foreigners, from Pharaoh to Bashar Al - Assad.

But "rule of law" aims upward at the government. From the early use of the phrase by Englishmen who opposed high - handed behavior of King James I, "rule of law" has applied to those who wield the power, as a guarantee that individuals will all be accorded the benefit of a hearing on all the facts and all applicable laws, their dignity respected during the process. Constitutional limits on the will of any leader and even on the will of the majority are the way to ensure that no individual or minority should, in John Locke's words (1690), be "subject to the inconstant, uncertain, unknown, arbitrary will of another man." Worse even than the fear of death is the thought that any government, gang, or tribe could rip us from our families, cage us, brutalize us, or isolate us.

When enforcement of our laws entails the subjection of anyone to that kind of treatment, it should give us pause. This month, I'm happy to say, we didn't just hit pause, we pressed reset when Congress and President reformed the draconian policy of "three strikes, you're out." Enacted to deter crime during the 1990s, mandatory life sentences resulted in a ballooning population of non - violent prisoners with no hope; deterrent effect was nil. Our sympathies are aroused for those drug offenders because they posed no threat to others, and because we have better understanding how addictive behavior isn't deterred by consequences.


If our sympathies are aroused, that should indicate something wrong with our law, and we should put the brakes on enforcement until we can straighten out procedures. That's not some new radical group's idea: Jesus turned religious statutes on their heads when, for example, the Sabbath ban on work conflicted with his healing people: "The Sabbath was made for man, not man for the Sabbath." We honor law - breaker Martin Luther King, Jr., who quoted St. Augustine, "an unjust law is no law at all." While he advocated breaking racist ordinances, he also insisted its being done "lovingly," without violence, so that the onus would be on law enforcement, public opinion, and political legislators to make changes. After police violently halted demonstrators at Selma's Edmund Pettus bridge, world wide sympathy was aroused; President Johnson sent troops to protect demonstrators from mobs and Alabama's law enforcement; civil rights legislation followed soon after.

As with the "three - strikes" answer to drug possession, deterrence by zero - tolerance may not be the only answer. We have wiggle - room within law, as when President Obama used administrative discretion to give priority to deporting violent undocumented immigrants over deportation of "Dreamers," the way an officer may bypass speeders to pursue a weaving drunk driver. Besides, "push factors" drive families from other countries, and we are powerful enough to have influence on those; we don't have to rely on deterrence.

There's room for sympathy in the rule of law.