Part 2: Harm Reduction: Decisions and Consequences with Shannon McMinimee (March 3, 2021)

Part 2 of our discussion about Harm Reduction – Decisions and Consequences, our tie in to the February 26 DOTG Friday Forum: Can Street Safety Be Anti-Racist, and How?

Once again, Shannon McMinimee, partner at Cedar Law PLLC and Constitutional Law Professor, joins Evelyn Lopez to talk about when government should make policies, rules, and laws, and what sort of decision making framework will result in better decisions.

Because this is detailed material, these show notes contain the complete outline of our discussion.

Harm Reduction: Decisions and Consequences

Context: Why do we have rules and laws? One of the reasons for government is to provide for the common welfare. So we should always ask if a government policy or regulation provides for the common welfare—for whom, and at what cost?

Recap Part 1: Rules, Risks and Choices: We are a nation of laws, and we default to making more laws and rules when there are problems. But our historical and cultural legacy of discrimination can turn law enforcement into oppression. Do we really need to govern our interpersonal interactions as police issues?

Thinking through laws, rules and policies, and the impact of these on all the people in our community, is one of the greatest responsibilities of our political leaders. Do they have the skills to make these decisions? Today we are going to talk about how they can do better.

Part 2: A Framework for Harm Reducing Decision Making

Examples for discussion: (1) Recently repealed bike helmet law in Tacoma; (2) recent Washington Supreme Court decision overturning strict liability for possession of any amount of a controlled substance; (3) new recommendation from Tacoma Police Department in favor of adopting a criminal ordinance on unlawful exhibitions of speed and criminalizing bystanders at such events.

Need: Do you need the policy, rule, or law?

— What is the harm to be prevented?

1. Harm to a person?
2. Harm to property or things?
3. Harm to image, security, perceptions?
4. Some other harm?

— Is it a real harm, or a potential or perceived possible harm? If harm is not real or immediate, consider more study of alternatives.

— How likely is the harm to occur if nothing is done? If harm is not likely to occur, rule or law is not needed.

— Who will benefit if the harm is prevented?

— Who will be impacted by harm prevention activity?

Does the person who will be impacted have the option to avoid the activity? Resources, alternative options?
What level of impact is expected? Temporary disruption, criminal charges, criminal records, jail?
If the person impacted has no resources or alternatives, and no ability to avoid consequences, is it a good rule or law? Is there another way to get the desired result?
If the person impacted may have other options, are they real and readily available?

Consequences (enforcement): Who should enforce the policy, rule, or law?

— What is the quality of harm at issue?

Immediate danger of physical harm. Use of law enforcement may be necessary.
Immediate danger of harm of property or things. Use of emergency personnel, such as fire department, may be necessary.
Danger of physical harm, but not immediate. Would warnings and posted information be sufficient? Code enforcement?
Danger of harm to property or things, but not immediate. Would warnings and posted notice be sufficient? Code enforcement?
Potential for harm to people and/or things. More study may be needed to assess this risk.

— What are the consequences of using criminal laws to regulate matters that are not immediate risks of physical harm?

Expense.
Crime statistics and perceptions of safety.
More opportunities for confrontation between police and residents.
Lawsuits.

Review: Is there an opportunity to review actual impacts of the policy, rule, or law?

Build sunset clauses and review dates into all policies, rules, and laws.
Citizen review board to annually review sets of policies, rules, and laws.
Where policies have evidence of success, publicize that.
Where policies have unintended consequences more study may be needed.
Where policies are not effective, repeal them.

Information and Consultation with the Public: Is There a Plan for Engagement?

Throughout the decision making process, providing information to residents about what is under consideration, proposed, on the agenda, and adopted will result in higher engagement and better decision making. For each policy, rule, or law under consideration or development, assign a specific official or staff person to be the liaison to the public and set specific expectations for use of social media, email and website for spreading information and collecting feedback.

As always, we are interested in your thoughts! Let us know what you think about this episode, and if you have ideas for other programs.

Evelyn Lopez: truetacoma@gmail.com @True_Tacoma