As Criminal Laws Proliferate, More Are Ensnared
online.wsj.com
online.wsj.com
- Ayn Rand
We've seen this before. In the Soviet Gulag depicted in "The Way Back", one of the leads questions why the guards have given so much authority to the Russian mafia within the prison. The answer is that such criminals are just a misunderstood product of bourgeois society, hence friends of the people. But political prisoners, like those who tried to start businesses, had no such excuse; they were the enemies of the people.
Same thing in today's USA. The mob of teens who broke Emily Guendelsberger's leg could not be arrested because the policemen were afraid of charges of racism.
http://mobile.avclub.com/philadelphia/articles/flash-mob-fal...
All I remember people asking was if they knew anything
about the giant group on Broad Street, and then saying
no, and the police saying all they could do was something
along the lines of chances are good they’ll attack
somebody else, and we’ll get them then, we can’t do
anything right now. I remember one of them specifically
saying "We can’t just go start arresting or picking up
black juvenile males." Then he said, "We can’t do
anything right now because you can’t identify anybody." I
also remember people saying we understood that they
should break up the group at least or do something since
it was such a large group. And they said basically that
if they scattered it would be worse so they weren’t
going to do that.
We're trained in school to recognize every little similarity to the Nazis, but are completely ignorant about patterns that are reminiscent of the Soviets.
I don't get it: Arresting/picking up black teenagers in a large city simply because of their skin color would be racist, would it not? Isn't that exactly what the policeman is saying?
Your belief that targeting black teenagers in general would of course lead to the arrest of the specific (unidentified) perpetrators doesn't sound all that likely to me.
Easier to punish the guy digging up arrowheads.
a) "Most of the kids had left", b) "obviously at that point the people who had attacked you guys had run off"
So how, exactly, were the police to arrest the attackers?
What emerges from this is a jumble of laws. Each local decision is made in response to an immediate concern, and cannot take the jumble-of-laws problem into account. You're only adding one law, after all, and it's benefit is clear.
"Well, what about repealing some?," you may ask. Well, what's the "game" when it comes to repealing them? Even if each law got on the books for--heh--objectively bad reasons, those reasons were still "good" in that they contained a political benefit. Often, repealing them would have the unacceptable adverse consequence of giving up that benifit. You wanna be the guy to repeal the broken sex offender registry laws and be perceived as on the side of rapists and pedophiles? How bout the U.S.A P.A.T.R.I.O.T. Act and be perceived as being "on the side of the terrorists"? What now, hotshot?!
None of the above requires a conspiracy, as your post intimates. Those effects emerge as unintended consequences from the dynamics of a system. The even more infuriating thing about that quote in this context is that it ignores the corrective power of a democracy in crisis. There eventually does come a point where people wise up and rise up on specific issues. Prohibition, slavery, and civil rights come to mind. Revolutions, as they say, are impossible until they happen, and then they were inevitable.
Finally, the mechanism of control in your Rand quote is just ludicrous. How would one "cash in on guilt" in a system that is as patently absurd as the one you cite? Nobody would feel guilt about breaking those laws. The arrowhead collectors didn't "feel guilt." Quite the opposite, it seems. They paid the bill and openly talk about how absurd it is. The only way one could use a system like the one you outline would be to actually lock everyone up. It's just not practical, and it's not even the kind of control your example seems to advocate. Ostensibly, the controllers in your fictional example want people to behave a certain way out of fear of being locked up, not to actually have to lock them up for misbehaving.
Try to critically scratch the surface of word-butchered fanboy fictional allegories that comprise Ayn Rand's work before posting them here verbatim as if they actually have any bearing on the real world. The real issue here, and one from which your post serves as a distraction, is the evisceration of the mens rea requirement for a finding of guilt.
A society under law means that people cannot be prosecuted by the whim of the authority, but only according to objective, written law. Yet even a society of written law can be under arbitrary rule if the laws are so numerous and complicated, that citizens do not know when they are breaking them, and if violations are so common that prosecutions and penalties are exacted based on police and prosecutorial "discretion."
Perhaps the legislature that pass the laws and the executive branch that lobbies for them have no idea of their cumulative effect, but I doubt it. They are not rubes. They are experts in the domain in the same way that experienced programmers are expert in theirs. They have to know that they are steadily transforming society from a free one, to one that is not free, from one that is ruled by law, to one that is ruled by men. Yet they don't care. The simplest explanation is that people who are attracted to government are people who want to control other people. If they weren't, if they valued freedom, they would refuse to create laws for the same reason that 37 Signals refuse to add features to their software: because while each individual law or feature may have merit, the cumulative effect is to destroy the more important value of freedom (or, in the case of software, simplicity.)
The problem is, the law is accountable to the government, not the other way round.
I guess you could create a hybrid system, in which higher courts shape the morass of law and precedent into simple explicit codes for the citizenry and lower courts to follow. That might give you the best of both worlds, but it might have its own problems.
Nobody knows the law anymore. Everyone is guilty of something. If the police want to arrest you, they can find some charge or another. Who has power in a world like that? Why, the person who decides whether or not to prosecute you for a law that thousands or millions of other people are breaking.
I'd say that by postulating an evil conspiracy that does things for the sake of harmful side effects, you are obscuring the mechanism that produces the harmful side effects in the real world. People have a tendency anyway to see agents that execute plans instead of faceless systems that happen to produce certain effects.
Of course, evil conspiracies might still make for good fiction, but stories like that usually don't do as well at offering insights as they could, because a large portion of readers will be misled into thinking there really is a conspiracy.
This argument is reductio ad absurdum. The corpus of law bearing significant consequences for violators [1][2] is sufficiently small as to be almost intuitively understood by any reasonably educated person.
As a general rule, you're not going to be confronted by the full weight and force of the state for violating the jaywalking statute. Were you to be targeted for arrest for such a minor violation, it would be transparent to knowledgeable observers that you were specifically targeted and surveilled until a reason was found to arrest you.
[1] By significant, I mean incarceration and/or crippling financial penalties. And note that the cost of defending oneself is categorically not a penalty. [2] This, of course, only applies to societies ruled by law, as opposed to those ruled by individual persons or groups
The point is, you can be tossed into the clink for just about anything if you are brazen enough to openly challenge the law and don't prevail. Judges don't care much for the proles challenging the state.
http://moneyland.time.com/2011/07/15/charges-dropped-against...
The job of the legislation is to create laws, by definition. So is it any wonder we end up with an accumulation of laws, some outdated? With an automatic sunset of all laws, this keeps the legislation busy without burdening us with an accumulation of outdated laws.
If it's really important, let the law be renewed after twenty years.
Kind of like a generational garbage collector.
Example: When Prohibition of alcohol ended, the regulating agency faced serious reductions in staff. Funny, severe restrictions on firearms (NFA) were enacted right about the same time - and guess which body was assigned oversight and enforcement?
You _are_ aware that the BATF and other agencies have been facilitating that violence, right? Google "Operation Fast And Furious", then consider how that contributes to ever-growing bureaucracy.
The quote is much more sensible under that interpretation.
However, a motif of Rand's is to moralize about capitalism and individuality. One of the themes, of which I think the current quote is an example, is that people have been trained to feel bad about their selfish impulses. Rand viewed the laws of her time as an outgrowth of the "evil" of altruism. As such, their "power" comes not just from being enforced, but from being held out as altruistic norms and carrying the moral weight that goes beyond their mere enforcement. As ludicrous as that sounds, I think I disagree with you and find it even more ludicrous that the antagonist actually wants to incarcerate people. To what end?
Also, the antagonist explicitly disavows that he want the laws obeyed, and also that they are even meaningful. He's trying to get people to live in fear.
The point is not to incarcerate people, but rather to gain leverage by being able to credibly threaten incarceration. This is standard operating procedure for prosecutors and police when dealing with confidential informants in drug cases. It's not such a stretch to think it may also happen in other cases.
Yes, a lot of these things happen through more-or-less the path of least resistance... Sure. But that doesn't mean there's a certain consciousness, a certain awareness among those who allow, who occasionally guide things this way.
I'm way, way on the other of the spectrum from Rand and have no use for her politics in general.
But this particular quote is a fine description for bureaucrats of all pin-stripes, all cardigans and all suits. No one would ever say this but they feel the awareness that proliferating laws give them power against nearly everyone when nearly everyone breaks the laws. And that power, of course, can used against whoever criticizes, annoys or stands against them.
That's the most disturbing line in the piece to me. Laws used to frustrate, oppress, or even enslave a citizenry are always written under the guise of offering 'options for protection'. Why do we need to wiretap private citizens? To keep private citizens safe of course.
Then, there's laws written to keep large companies like Exxon or WalMart from polluting the environment or mistreating their workers, but prosecutors can't get convictions against their herculean legal teams, so they end up convicting small businesses and private citizens because they're easier targets.
The problem with these laws is not that they criminalize non-criminals, its that the actual criminals aren't impeded by them at all.
This quote also disturbed me, but for a slightly different reason: The prosecutor who is speaking is implying that the large number of laws give him a lot of options, i.e., he is (almost) free to persecute on whim. If there were fewer laws, he would be more constrained, have fewer options.
The whole point of written law is to prevent government from prosecuting on whim. A written law forces government to use objective standards. Yet when there are so many laws that everyone is guilty, the effect is the same as when there are no laws: prosecutions are conducted on whim (aka police and prosecutorial "discretion".)
If you give me six lines written by the most honest man,
I will find something in them to hang him.
-- Cardinal de Richelieu> With just 5 percent of the world’s population, the US currently holds 25 percent of the world's prisoners. In 2008, over 2.3 million Americans were in prison or jail, with one of every 48 working-age men behind bars
> Prior to the 1970s, private corporations were prohibited from using prison labor as a result of the chain gang and convict leasing scandals. But in 1979, Congress began a process of deregulation to restore private sector involvement in prison industries to its former status, provided certain conditions of the labor market were met. Over the last 30 years, at least 37 states have enacted laws permitting the use of convict labor by private enterprise, with an average pay of $0.93 to $4.73 per day.
> Subsequently, the nation's prison industry – prison labor programs producing goods or services sold to other government agencies or to the private sector -- now employs more people than any Fortune 500 company (besides General Motors), and generates about $2.4 billion in revenue annually.
http://www.alternet.org/world/151732/21st-century_slaves%3A_...
I can sort of see the motivation; nobody likes to see someone who you're 95% sure is guilty manage to beat any charges because you technically couldn't get anything solid. But it's more dangerous a cure than the disease, I think.
Also, I'm amused by an article about injustices in the criminal system where everyone pictured is a well-off white man.
That is by design, since the stereotype for "middle class" is the well-off white man, and this article is attempting to motivate the middle class. Revolutions only happen when a critical mass of the middle class switches sides.
Not that there isn't a certain amount of abuse of "anti-hacking" and similar rules.
In both cases (capital crimes, small-scale / activist hacking), defendants are often have limited means (and these are often further restricted through prosecutor maneuvers), and a plausible case can be made before a lay jury.
For more, see the Innocence Project: http://www.innocenceproject.org/Content/The_Death_Penalty.ph...
Not that I disagree with your basic premise of prosecutorial misconduct.
I've heard people say that rich people get special treatment by the justice system but I suspect that they simply have to money necessary to make the system behave as it should.
http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html
The risk of self-incrimination is incredibly high since no person can even be aware of all of the laws that exist and may be violated.
It takes a certain amount of cahones, but you'll generally find that the cops will respect it.
A pricey court appearance beats a conviction in my book.
http://www.thisamericanlife.org/radio-archives/episode/430/v...
Exited the car, locking it. Identified myself and presented ID. Refused consent to search the vehicle: "I don't consent to any search". Officer implied strongly that he could get a warrant (it's around midnight). "You do what you've got to do, I don't consent to a search".
Got breathalyzed (I could have refused this but that would have required a trip for a blood draw), which was clean (hadn't consumed any alcohol for hours). Eventually allowed to go on my way.
Later realized I had a couple of prescription painkiller pills given by a friend (for severe pain I was experiencing at the time) which probably wouldn't have been a good thing to turn up in a search. The This American Life drug court segment relates a story that could have been very similar to mine.
You have rights. But only if you assert them.
Note that when I did assert my rights, I really didn't have any reason for doing so other than that they are my rights. It was literally a couple of years later that I made the association between the stop and the possibility that I may have been carrying what were technically illegal drugs.
http://www.quora.com/Aaron-Greenspan/The-California-Law-That...
[1] DMT, 5-MeO-DMT, Anandamide, etc.
Or to put it more simply, you're innocent until proven guilty. Felon means conviction.
The US, the "Land of the Free", has a per capita prison population that it 5-10 times greater than any of it's first-world colleagues. The system is broken.
Could one not argue that an increase in prison inmates is the unavoidable consequence of increasing freedoms? It seems counter intuitive, but perhaps the more freedoms one has, the more readily one encroaches on freedoms one does not have?
http://en.rsf.org/press-freedom-index-2010,1034.html
The word "freedom" occurs much more frequently in American political discourse, but that does not mean that Americans are automatically freer than anywhere else. I find it hard to believe that those extra freedoms that Americans do have (which most don't seem to exercise in day-to-day life) is sufficient to cause a fivefold increase in per capita prison population.
Once they've criminalized being a common person, then the government can exercise discretion and selection to eliminate people they does not like, for any reason.
Just to clarify, it is not necessary to be on a recognized archeological site to be illegal, intending to collect artifacts on federal land is a crime whether a recognized archeological site or not.
But in this case they were in camping in "Salmon River Canyon, near the mouth of Graves Creek, which is in Idaho County" on land "administered by the Bureau of Land Management".
Photos of Graves Creek: http://www.nww.usace.army.mil/dpn/f616a.htm
It's not a recognized archaeological site beyond the interpretation that every location in the US is an archaeological site.
To be sure, there are arrowheads and/or evidence of human habitation on nearly every square mile of this continent. Just having the possibility of arrowheads doesn't make something a real archaeological site unless we bend the definition so far as to not have any meaning.
-- UPDATE --
To save time, I'll now provide a rebuttal to my own argument. Here's the BLM site on archaeological research in the area: http://www.blm.gov/id/st/en/fo/cottonwood/lower_salmon_river...
They cited that page to justify the claim it was an archaeological site in the article about the prosecution: http://www.blm.gov/id/st/en/info/newsroom/2009/june/archaeol...
Eh, OK, I agree with you!
There's no way to rule innocent men.
Yes, there is, to the extent that that rule is legitimate. Usually, just powers arise from the consent of the governed. For example, sane people pay taxes because they understand that they have need of the canonical services of roads, fire service, police, the military, and the like.
The only power any government has is the power to crack down on criminals.
This typical Rand drivel sounds good on the surface, but either doesn't actually mean anything or is outright wrong. If it just means that "enforcement only comes in to play when an infraction is suspected," then it's a tautology. If it means that the government doesn't also do things like establish air traffic control, a consistent system of laws for the roads, and establish bright lines like ages of consent and whatnot, then it's clearly just wrong. On a factual level. A lie or an omission. Unworthy of a "philosopher."
One declares so many things to be a crime that it becomes impossible for men to live without breaking laws.
In very few systems, and especially in the instant case of the American legal system, does "[o]ne" declare anything to be a crime. I often wonder where Randians actually live, or what their connection to political reality is. Have they not taken even a grade-school level class in civics? Oh, I'm just a bill on Capitol Hill, anyone?
But just pass the kind of laws that can neither be observed nor enforced nor objectively interpreted and you create a nation of law-breakers.
And the whole thing collapses on itself, ironically, in a fit of internal logical inconsistency coming from the Prophetess of Logic herself, Ayn Rand. Laws "pass" in a democratic system. Again, "[o]ne" cannot even do it. One can only decree. "Passing" is a democratic concept pertaining to the outcome of a vote. It seems like a nitpick, I know, but remember who was cited. This is Ayn "A is A" Rand, who thinks that all of human nature can be derived from the laws of logic, one of which she exclusively calls out, the Law of Non-Contradiction.
Finally, this it's "impossible for men to live without breaking laws" thing is really really weird when compared against reality. There are tons of laws on the books that just go unenforced because law enforcement and the judicial system possess the very reasoning powers that Rand so often wants to remove from them. Remember when Taggart shot the guard near the end of Atlas Shrugged? Rand justified that for the reader by dehumanizing the guard as an unthinking automaton. Well, why aren't these unthinking automatons enforcing laws about the size of switch with which you can beat your wife? Why aren't they enforcing the laws in Washington state that make it literally impossible to get a motorcycle endorsement? (You have to take the class to get the endorsement, but you need the endorsement to take the class.) Because they're not unthinking automatons. And the very fact that they aren't allows the other glaring contradiction to this impossible-to-live-legally trope: precisely those impossible-to-follow laws exist, and they don't get enforced for pragmatic reasons. Perhaps this is the real reason for Rand's oft-stated hatred for pragmatism; It's actual effects wholly invalidate her stupid little "philosophy".
It is Randians who think that civilization is the only free lunch.
"Who could have predicted that breaking into people's voicemail was going to cause such a fuss?"
I think it's a shame that the US federal government has ballooned the way it has, and I believe it's a slap in the face of the Constitution. Discarding the concept of mens rea while maintaining more than 250,000 pages of regulation is malicious, and anyone supporting this movement is not someone who should be in political power.
Surely it would be just as bad if these were state laws (for the citizens of that state, anyway)? Or are there for some reason no state laws of that kind? If so, what could be the reason?
To give an example, in Florida, one is guilty of a felony for having sex with a person under 18 (if the older person is 24 or older) no matter how reasonable it might have been to believe the person was of legal age. A forged driver's licence that would fool the DMV and get the bartender off is no defense here; it's a strict liability crime.
I would favor a Constitutional amendment blocking the enforcement of any criminal law that did not include a culpable mental state for every element of the crime. To implement such a change without crippling the legal system, it could make the default mental state criminal negligence if none is given.
Here's a chart that shows the differences between the state and federal legal systems: http://www.uscourts.gov/EducationalResources/FederalCourtBas... are many differences.
You're right. There is another issue, though, relating to the massive power of the central government. --- Amendment X
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. ---
The US was designed to be a Federal system, with all non-delegated powers belonging to the states, not the central government.
Besides the fact that our nation is meant to have a small Federal government, it is easier to manipulate and fight unjust laws at lower levels of government than the behemoth that is Washington, DC.