A commenter on the food stamp law thread writes:
Stop with all the indulgences and exceptions, and make a reasonable law with reasonable punishments that is applied equally to everyone.
Maybe the punishment is either a fine or temporary ban, with the offending store owner free to choose.
The law, as you may recall, was that (1) food stamp recipients whose employees accept food stamps for ineligible items — even without the owner’s knowledge — can be permanently or temporarily disqualified from the food stamp program, but (2) a federal regulation (which, I believe, was originally created pursuant to a statutory requirement, though a requirement that has now been repealed) provides that the government
may impose a civil money penalty as a sanction in lieu of [temporary] disqualification when ... the firm’s disqualification would cause hardship to food stamp households because there is no other authorized retail food store in the area selling as large a variety of staple food items at comparable prices.
This exception is largely aimed at situations where a store is the only food store, or the only discount food store, in the immediate neighborhood. But it could in principle also be invoked when a store is the only food store that carries food that’s adapted to the felt religious needs of a particular religious group (the situation in the case about which I posted). And it is this exception that the commenter faults.
Now I sympathize with the commenter’s thinking, and I see the unfairness that the regulation creates: Say the owners of Store A and Store B are equally culpable (or not culpable), but Store A is surrounded by other comparable stores and Store B happens to be the only one for many blocks around — Store B gets the exemption, but Store A doesn’t, despite the equal moral status of the owners.
But at the same time the regulation is aimed at easing a burden on the innocent shoppers: In this hypothetical, imposing the same disqualification on Store A and Store B would burden A’s shoppers very little, but would burden B’s shoppers a great deal. And imposing an equal but lesser penalty (such as a fine, presumably one not large enough to drive the store out of business), as the commenter suggests might be possible, would have a lesser deterrent effect on stores than imposing disqualification would, and would thus less effectively serve the government’s interest in preventing food stamp fraud.
Now when I say “burden,” I don’t mean the shoppers have some constitutional or moral entitlement here: This is, after all, a government subsidy that the government is free to cut off if it wishes.
But the whole point of the subsidy is to help poor people. The disqualification provision usually doesn’t much interfere with that goal, because the shoppers can go elsewhere. (I assume for purposes of this post that the food stamp program does generally help people, both in the short and the long run, and that the limitations on which products are food stamp eligible are sound; that, after all, is the premise of the program.) But in certain situations — usually having nothing to do with cultural or religious food preferences, and everything to do with the simple number of affordable food stores in the neighborhood — the disqualification provision would substantially undermine the program’s goal. And it’s at least plausible that in those cases where there are no other nearby food stores this immediate effect would exceed whatever benefits the deterrent effect of the disqualification provision provides.
So that’s why such “indulgences and exceptions” strike me as at least plausible, and not easily dismissed simply by labeling them “indulgences and exceptions” and calling for rules that “appl[y] equally to everyone.” When circumstances are different in different cases, it is not necessarily sensible to have rules that apply equally to those different cases.
Now of course this question comes up in lots of other enforcement situations as well, which is why I’m blogging about it. For instance, throwing a wife-beater in jail might end up hurting the wife (who may lose the source of income for herself and her kids) more than it helps her, even counting the deterrent benefits of the law. And I certainly agree that in some situations equal treatment without exceptions for such cases is better, either for practical deterrent reasons, practical enforcement reasons, or moral reasons.
It just seems to me that the general question is difficult, and that our normal intuitions in favor of exceptionless equal treatment may not be sound in all such cases.