An economically optimal level of tasing

The growing use of tasers by the
police and the invention of novel non-lethal weapons have led to calls to ban
or restrict their use. 

The two sides of the debate are
usually identified as the “civil libertarian” left/liberals versus the “law and
order” right/conservatives.  The liberals are concerned with “civil rights
and freedoms” while the conservatives worry about “safety and security.” 
Each side identifies with a victim group – the accused the left and the
“law-abiding citizens” on the right.  This presents a dilemma for the
public – should their primary concern be safety from criminals, or the
potential for police brutality?  The false dichotomy of these choices is
exposed with a little incentive analysis.

The introduction of non-lethal
weapons allows a finer degree of discrimination in the escalation of
force.  Whereas previously an officer might have had to decide between
verbal commands, direct physical force, and lethal force, tasers introduce a finer
distinction, cutting into the territory of all three possibilities.  Some
suspects who might have previously been shot will be tased, but suspects who
might have previously been wrestled to the ground, or ordered to comply might
be tased as well.  As Dan
D’Amico points out
, tasers are a
great substitute for muscle strength, allowing women to have a greater role in
police operations. 

By lowering the risk of personal
injury or unnecessary use of lethal force, tasers offer a powerful
risk-management tool for police officers.  For the targets of non-lethal
weapons, the effect is two-sided: suspects who might have previously been shot
benefit, but suspects who would otherwise be verbally instructed or physically
restrained generally suffer.

The debate over whether the police
should use non-lethal weapons is thus misguided.  The police have always
had a range of non-lethal options in their jobs, from words, to nightsticks, to
fists.  The real issue being debated is the extent to which police
officers should risk injury to detain suspects.  Should they only use
force when someone’s life is in danger, or to avoid the risk of injury when
attempting to tackle a suspect, or to avoid a sprain from having to run after
someone?  It is likely that further
debate will result in a consensus enforced by the legislative and judicial
branches of government.  But what
criteria should be used to determine the level of risk that police officers may
be exposed to before using force? 

Under our democratic/retributive justice
system, the established standards will likely be influenced by a variety of non-objective
factors such as the public’s fear of police brutality, their desire for safety,
the cost of lawsuits from police actions, and the political gain politicians find
from pushing more or less draconian policies. 
Notably, police officers are only held responsible for injuring others only
if found guilty of a miscarriage of justice, that is, willful malice or
negligent behavior in the performance of their job.  This provides an incentive for the judicial
branch to minimize liability by maximizing the leeway officers have in deciding
whether to use force.

Contrast the retributive system of the
criminal justice system with the strict liability restitution convention found in
civil law.  Under strict liability, it is
not necessary to find a party guilty of malice or negligence, only of fault.  Perpetrators of damages arising from inherently
dangerous activities are responsible for damages regardless of whether they
acted improperly.  Drivers at fault for
damaging another car or injuring a driver are held financially responsible
regardless of whether they acted maliciously or negligently.  Under a strict liability standard, a police
agency would be held responsible for personal injury and property damages if an
officer injures an innocent suspect, or unnecessarily injures a criminal — even
if the officer acted properly in the performance of his duty.  For example, an officer who fires at a guilty
suspect who poses a real threat would not be liable, but an officer who fires
at a suspect who does not pose a threat will be held liable for damages whether
the officer is guilty of a miscarriage of duty or simply made an error in
judgment.  Furthermore, such a system might
repay defendants who are exonerated at trial for their time and suffering.

One concern with a strict liability standard
is that it would greatly increase the financial risk faced by police
departments and courts.  But by placing
the burden of minimizing costs on the judicial agency, a strong incentive is
created to minimize mistakes – and therefore costs.  It is likely that police departments would
attempt to insure themselves against risk, and the insurance agents would in
turn establish guidelines which seek to minimize their exposure.  Such guidelines may ban tasers because of their
health risks – or they may require them in most situations where deadly weapons
were formerly employed.  Police agencies
may also prefer to hire men because they would find it easier to tackle suspects
or women because they are better at resolving conflicts peacefully.  Police agencies would be free to experiment
on the most economic way to perform their jobs, while the public they protect
would be insulated from their mistakes by a strict liability standard.

Another concern with strict
liability under the current legal system is that it would make police agencies
averse to enforcing laws which are prone to mistakes or unsuccessful prosecutions
– namely, those known as “victimless crimes.” 
Adultery,  gambling,  homosexuality,  and the trade of illicit substances and goods
are areas where the lack of a victim makes errors in suspect identification and
successful prosecutions especially likely. 
This is especially true of laws pushed by vocal voters on unwilling
recipients – for example, communities which favor drug or alcohol prohibition
on communities which tolerate drug and alcohol users. 

Yet this only illustrates the failure
of democratic processes to establish economically efficient laws.  If enforcement agencies are required to pay for
their mistakes, they will favor enforcing laws which can be objectively
enforced and violations of which result in victims pushing for enforcement.  A private legal system based on the principle
of restitution is much more likely to provide this incentive than our current system
of criminal retribution.