Thursday, September 11, 2014

Does an unenforced smoking ban in Chicago's parks encourage or erode respect for the law?

I believe, with John Adams (who coined the phrase) and John Marshall (who appropriated it -- see, Marbury v. Madison, 5 U.S.137, 163 (1803)), that ours is a government of laws, not persons. (OK, Adams and Marshall said 'ours is a government of laws, not men,' but modernizing the phrase does not diminish its meaning or import.)

That's a great, high-sounding principle and most people haven't thought about it since high school civics.

If they even have high school civics classes anymore.

But we can remain a government of laws only so long as people respect and believe in the laws, and in the rule of law. As a lawyer, and as an American, I believe wholeheartedly in the rule of law, and I am distressed by anything that tends to undermine the respect of my fellow citizens in the law.

The classic example of a law eroding respect for the law is the Volstead Act, the Act of Congress that implemented the provisions of the 18th Amendment -- the law that was meant to implement Prohibition.

Rich people toasted Prohibition -- thinking it would encourage a thrifty and sober working class -- at dinner parties where champagne and brandy flowed. Just about any brand of whiskey could be had at the Harding White House, according to Alice Roosevelt Longworth, daughter of Teddy and wife of Nicholas, a prominent congressman (Speaker of the House from 1925 to 1931). The Washington Post feature, from which this tidbit is lifted, notes that at least some of the booze served at the Harding White House, at the height of Prohibition, was procured from liquor confiscated in raids by Prohibition agents. And the urban working class that was expected to actually live with Prohibition flouted the law just the same as their bosses, patronizing speakeasies and making millions for organized crime.

America has still not fully recovered.

Nor, apparently, have Americans learned that passing laws that one either can not, or will not, enforce, or at best enforce selectively, erodes confidence and respect for the law.

Today's case in point is a new ordinance enacted by the Chicago Park District Board. Tina Sfondeles reports in this morning's Chicago Sun-Times that the smoking ban in Chicago's 580 parks was approved yesterday. An excerpt from her article:
But despite the new resolution, thousands of Chicagoans attending Riot Fest in Humboldt Park this weekend will not be ticketed, according to Park District Supt. Mike Kelly.

“People at Riot Fest this weekend, they don’t need to worry about...a man tapping on their shoulder and saying, ‘You’re under arrest,’” Kelly said. “That’s not the point of this. It’s about awareness. It’s about people taking the dangers of smoking seriously and making their own choices.”
Meredith Rodriguez also writes about the ban in today's Chicago Tribune. Rodriguez writes that Chicago's ban follows the adoption of similar bans in New York in 2011 and Boston in 2013. She also notes that the Chicago Park District banned smoking at Park District buildings, beaches and playgrounds in 2007. She adds:
The maximum fine for an “egregious offender who refuses to put out a cigarette in the face of repeated warnings” is $500, said Tim King, the Park District deputy general counsel. To his knowledge, he added, no such fines have yet been issued since the first ban was implemented in 2007.
Chicago Police will have the responsibility to enforce the ban, according to Rodriguez's article.

There was apparently one concern raised by Park District Commissioner Vice President Avis LaVelle. Rodriguez quotes LaVelle as stating, "I think we have to have a more concrete idea of how this might be enforced."


The newspaper articles suggest that the ban won't be routinely enforced -- and it couldn't possibly be routinely enforced, given police manpower limitations. The proponents of the measure want people to enforce it themselves -- to shame their fellow citizens when they light up (or toke up -- marijuana and even medical marijuana are also subject to the ban).

Sure, that'll work. I shudder to think what may happen to the first nice old lady who scolds a gang of toughs for smoking in the park.

If any enforcement ever takes place, I am very much afraid it will be in 'sweeps,' as police use the ordinance as a pretext to roust persons deemed undesirable by someone. The local alderman. The local police commander. Business owners or highly-clouted persons living near a park who pressure the local alderman and/or police commander.

Look, I'm not in favor of smoking. I certainly don't encourage it. I don't know that there's anybody in this day and age who is in favor of encouraging smoking. (Maybe if the person is named R.J. Reynolds....) Most smokers I know just want to be left alone and unhassled. They are already confined to furtive clusters in the shadows of Loop office buildings. And I agree with the Park District that smoking in public parks is a public health issue. But don't criminalize the behavior: If the goal really is to make people more aware of the dangers of smoking and help people to 'make their own choices,' the Park District should aim to persuade, not punish. The same signposts that will now threaten fines for public puffing could be used for signs that say, perhaps, 'come here for the fresh air -- don't smoke.'

Ah, you say, those young toughs will ignore that sign, too.

And they might. (OK, they will.)

But I'm worried about the old lady who will lose a little respect for all laws when she sees that this new law is not enforced and, worse, when she is verbally or even (heaven forbid) physically abused if she tries to enforce it herself.

Criminal statutes or ordinances are not symbols. When a law or ordinance is passed that is not to be enforced and can not be enforced fairly and uniformly, we erode respect, just a little, for all our laws. And we damage our nation and endanger our future in the process.

An aside to the Sun-Times Early and Often Webmaster: I read Ms. Sfondeles' article in the actual, printed newspaper this morning. On your website, however, I found the Tribune article before I found your own. Somehow, I doubt that was your intent.

1 comment:

Unknown said...

Has anyone considered the possibility that laws might be better respected if they were reasonable and fair? The antismoking laws--and a good many others--are little more than the efforts of one element of society to impose its will on another. And since it's a fairly small group, it doesn't have popular support.
There seems to be a mentality that the purpose of laws is to stop others from doing things we personally dislike. That should not be their function.
As for the proverbial little old lady afraid to play busybody, that's all to the good. There are enough self-appointed killjoys running around without the government actually encouraging more of them.