Unintended Consequences and The Failure of Fail Safes

Maybe you’ve heard about the two teens in North Carolina charged with felony crimes for taking pictures of themselves and sending them to each other. I first wrote about it here. I’m not using their names on purpose, for a reason I’ll discuss a little later. The two teens were legally allowed to:

• See each other naked (in person); and
• Have sex.

But, the North Carolina authorities decided, they were not allowed to take racy photos of themselves and send them to each other. Not to anyone else – to each other. For these crimes (having naked pictures of themselves (yes really), and sending them to each other) they were charged as felons. The girl had previously taken a plea deal that reduced the felony to a misdemeanor. The boy has just accepted a similar deal which reduced the felony charges down to misdemeanors and gave him a year of probation. During his probation he must stay in school, do community service, and is not allowed to possess a cell phone and must submit to warrantless searches. As pointed out in Reason:

The order to stay in school is acceptable; the loss of cell phone privileges and surrendering of constitutional rights is not. Again, is the state not, in some sense, punishing the victim of a sex crime—if having naked pictures of oneself is indeed a crime?

Yes – this is unacceptable. But keep in mind that the requirement to submit to warrantless searches is a fairly common requirement of most probation sentences. It enables probation officers to enforce the terms of probation – such as a prohibition against possessing firearms – without having to go and get a warrant.

As also pointed out in the Reason article, this case is a pretty ugly episode of finger-pointing between the Sheriff, the District Attorney, and the legislature. The Sheriff and District Attorney say they don’t write the laws, they just enforce them, so boneheaded laws get enforced in boneheaded ways. The legislator who wrote the law says that enforcing the law the way the Sheriff and District Attorney did was not a good use of resources. They all agree that the result was unfair in some way, but all disagree on who’s to blame for the unfairness. In reality, they’re all to blame. Here’s why:

The Sheriff:

The Sheriff is the first one to raise the “I don’t write laws, I just enforce ’em” flag. And he’s right, but there’s something he’s leaving out – law enforcement officers also have the discretion (albeit to an increasingly small degree) of whether or not to strictly enforce those laws. Should every law enforcement officer strictly enforce all the laws all the time? If the answer is yes, the fallout looks like this. Or Sheriffs believing they have the legal authority to stop people from being mean on the internet.

This is not to say that crime should go overlooked, but do we really value law and order above personal freedom so highly that we must see every speeder fined, every homeless person jailed for trespassing when they’re found close to private property, every child in a playground scuffle charged with battery, and every person under 21 who’s possessed an alcoholic beverage given a permanent and unchangeable criminal history?

The District Attorney:

If the Sheriff could have exercised discretion, so too could the District Attorney. In fact, one of the DA’s most important jobs is to act as the stop-gap between unjust laws and their strict enforcement, or between just laws and their unjust enforcement. It’s part of the concept called prosecutorial discretion, which is just a fancy term for the common sense not to prosecute a teenager for having a picture of himself on his cell phone.

When the District Attorney maintained the charge as a felony and then reduced it to a misdemeanor as part of a plea deal this was overcharging. It makes the original consequences so severe that being able to plea to a lesser charge with probation seem like the best way out. This is common practice at many District Attorney’s offices, and is now a problem so institutionalized that I would highly doubt any DA’s see it as a problem at all.

The Legislator:

Badly written laws have unintended consequences. Yes, making laws is an imperfect science and an exercise in sausage-making or whatever metaphor you want to use. But damn – the way this law is written and enforced makes is a farce of the very concept of justice.

But don’t fret – State Rep. Paul “Skip” Stam of Wake County who helped write the law has an explanation:

“you can’t make it so that it’s totally legal for 16- and 17-year-olds to do this because then the criminal gangs that are primarily involved in trafficking would just use 16- and 17-year-olds as their disseminators or as part of their operation”

Yeah … um, what? It’s a pretty scary thought that many of our criminal laws are written by people whose primary motivation is preventing imaginary crimes they came up with in some Law & Order: SVU-fueled fever-dream, but hey, that’s how that sausage gets made.

Why Not Use The Name?

In partial answer to that question, here’s a quote from the local news article:

If [name redacted] complies with the punishment, District Attorney Billy West’s office in September 2016 will dismiss the misdemeanor. This will prevent a conviction from going on his record.

I bet he’s really relieved not to have a felony charge on his record.

Why not use his name? Because this is a kid. And while the District Attorney may dismiss the charges to keep him from having a criminal record, the internet is forever. Because he should have the opportunity to shape his own future, and not have this stupid thing shape it for him. Because when he (or any potential employers) google his name there will be enough news articles and thinkpieces that come up talking about this episode and I don’t want this to be one of them. Because I’d much rather have this come up when someone googles District Attorney Billy West or State Rep. Paul “Skip” Stam of Wake County, because the law they wrote and enforced is almost as mind-numbingly dunderheaded as they are.

District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County. District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County. District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County. District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County. District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County. District Attorney Billy West. State Rep. Paul “Skip” Stam of Wake County.

The Failure of Fail-Safes:

Law enforcement officers having discretion is supposed to act like a fail-safe against prosecuting the wrong people for crimes, or for declining to prosecute unjust laws. Unsurprisingly, when the majority of law enforcement officers are white, straight, and male, these same kinds of people end up receiving that discretion while others do not. The cure for that, however, is not ending discretion but increasing diversity in the ranks of law enforcement.

State legislators are supposed to also act as a fail-safe by writing laws narrowly and thoughtfully, keeping alert to the possibility that a law might not do exactly what it’s intended to do. But, unsurprisingly, when the people who write the laws seem to exist in a fantasy haze outside of reality, we get laws like the one used to prosecute a teenager for a sex crime for having pictures of himself.

I’d like to say that this failure of the fail-safes in this case is uncommon. Unfortunately, it’s not.