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Comment by angersock | Hacker News Reader

It's very distressing (as at least one other poster has noted) that we have this sort of "Aha, but now they are treated the same as the poor people!" thing even possible in our system. It is troubling that there is this obvious built-in bias towards justice-as-a-function-of-wealth.

A somewhat longer-term issue is this: If it becomes common knowledge that the Feds don't fight fair, and that my resources can be used against me and mine via seizure and what not--why do I want to stay in the US and play the game? Even more cynically, why do I want to play a game I can't win according to their rules--wouldn't my money be better spent on dead drops for harassment, assassins, or something against public officials?

I mean, that's the very real risk of this sort of thing, right? That we undermine the values of our society and provide incentives for extralegal defense? And that these measures in turn spur further degradation to "fight the terrorists/crime lords/etc." in one big swooping downwards spiral?

(Edit: The use of first-person is writing style, not intended as "I want to do X to the gubberment" lunacy, etc. etc.)

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The Federal government in the US can pretty much screw people it wants to screw. I think that's fairly well established. The same is true in every other country I can think of -- at least in the US the fact remains that if you're genuinely innocent you can have your day in court. If anything characters like Conrad Black get away with -- figuratively -- murder.

The question is -- do we have someone more sympathetic than a guy who looted his own companies and a serial killer to serve as an example of this kind of thing being done to genuinely innocent victims? Forbes may regard Conrad Black as a sympathetic victim, but I don't think most reasonable people would. What the writer of this article doesn't like is that the Federal government will do some very nasty things -- in court -- to people it knows are guilty but hard to convict of their actual crimes.

In most other countries if the government hates you that much you'll have much worse to worry about.

See, this is the problem - thanks to a decade's worth of state-sponsored smear campaigns, you think Conrad Black 'looted his own companies', when that's just not borne by the facts at all. I wish you luck finding someone who looks more sympathetic after the government finishes up with them.

And while I agree with your statement about 'most other countries', Americans should hold their government to a higher standard.

Can you set the record straight with respect to the Black case?

I'd have to write a book, it's a long and complex case. (If you do want to read a book, Conrad Black's own book on it is very good.)

Perhaps start with some of Mark Steyn's writing for the Canadian news magazine Macleans?

http://www.macleans.ca/columnists/article.jsp?content=200707...

Mark Steyn is not exactly a neutral party in the Black case, which has strong political overtones. The article we're commenting on also puts a fair bit of gloss on the affair; Conrad Black may very well be a well-regarded "historian", but what most reasonable people would call him is "one of the richest people in all of media"; he went into his legal troubles with something close to half a billion dollars in assets.

The dubious and controversial theory used against Black was "honest services fraud". The statute enforcing it does seem to have been perilously vague. But the moral/ethical/pragmatic reasoning behind it isn't; it boils down to maintaining a fiduciary duty to your shareholders or, in Rod Blagojevich's case, to the citizens of the state you govern. Also, Black wasn't merely charged with honest services fraud, but also with charges like obstructing justice and theft, charges that Richard Posner upheld.

Another perspective worth reading is that of the mutual fund company that originally pushed for a special board committee to investigate Black's compensation and other off-the-books financial arrangements with Hollinger. That committee (of the company's own board of directors) uncovered a number of questionable actions that eventually resulted in the criminal probe described in the Forbes article:

http://www.tweedy.com/resources/library_docs/reports/BAN0331...

(starting on page 11)

I gave you a round of applause for stating that Americans should hold their government to a higher standard. Last time I checked we Americans walk around thinking we are the best and most free place in the world. Sometime's it feels like that's a facade though, because when things like feds reading all our emails for little to no reason occur they throw their hands up and say two things, first "I have nothing to hid so I'm not worried about this." followed by "at least we have freedom at all, in insert country name here women don't even have the right to vote." That's all fine and dandy, I'm glad we as a country are better in that regards. How much longer will it last like this though? With our rights eroding away like Niagara falls.

> the Federal government will do some very nasty things -- in court -- to people it knows are guilty but hard to convict of their actual crimes

The government can presume the guilt of a party they put on trial. But acting as if that presumption is in fact knowledge, and that such an ends justifies whatever means they require to get there, that is a subversion of justice, IMO. I would rather they didnt do that.

They couldn't get Al Capone on criminal charges so they screwed him for tax evasion. Was that the "right thing" to do? In the end, we have to hold people accountable rather than expect a perfect set of rules to lead to a perfect set of outcomes -- there's no perfect set of rules, and even if there were people would interpret them and create imperfect outcomes.

Speaking as someone with a logical mind, I used to get worked up about the imperfection of rules until it finally dawned on me that they're all socially constructed, and it's the people you need to worry about.

Do you recall the scene in Catch-22 when Nately flies his plane into the ground after accidentally killing someone, and the doctor who is listed as being on the plane doesn't bail out because he isn't actually on the plane, he's just collecting "flight time" to satisfy some idiotic bureaucratic rule. Despite the fact he's on the ground next to all the other people watching the disaster unfold, they decide he's dead and ignore him afterwards.

My point is: the world is not actually like this.

I fully appreciate that perspective, and agree with they're all socially constructed, and it's the people you need to worry about/ I was thinking through similar issues as I wrote my own comment. If I was a victim of one of these crimes I might even be swayed to subscribe to that view. But on balance, I think the damage done to the system as a whole (see angersock's comment for one example) outweighs the upside of getting one or two bad guys that wouldn't otherwise be caught.

tldr: I'd choose system integrity/reputation over catching 100% of the bad guys. Loved Catch-22 btw.

>> I'd choose system integrity/reputation over catching 100% of the bad guys.

Pretty much my thought. The system is based on the fundamental belief that it is more harmful to convict an innocent person than to let a guilty one get away. This is why there is a built-in assumption that people are innocent until proven guilty.

Al Capone is not a good example because he had a tremendous amount of influence via bribes, extortion, blackmail, assassinations, and the like. This is why he could not be convicted on criminal charges. He was basically an outlier.

Whitey Bulger is on approximately the same plane as Al Capone. Just ask John Connolly, the FBI agent convicted of conspiring with him.

> at least in the US the fact remains that if you're genuinely innocent you can have your day in court

Innocent of what? With a complex and convoluted legal structure, we are all criminals. You are guilty of something. And guess what? Even if you're not guilty of 99 of the 100 counts they bring against you, you're guilty of that one. Hello jail time!

> do we have someone more sympathetic than a guy who looted his own companies and a serial killer to serve as an example of this kind of thing being done to genuinely innocent victims

That's the government's take on things. They can describe you that same way tomorrow and you can scream "I'm innocent!" all you want ... everyone will still think you're a piece of garbage who deserves it.

> In most other countries if the government hates you that much you'll have much worse to worry about.

It is truly a sad day when "other countries" becomes the standard. When the United States of America was born, it was the sole country that elected its leaders and had a constitution that was written specifically to restrict government. Even now, that constitution is in the minority, even though it is the oldest constitution in use to date. Our standard shouldn't be "better than the rest" but rather "better than before".

What I want is an America that is better than it ever was, without regard to anything else.

> Innocent of what? With a complex and convoluted legal structure, we are all criminals. You are guilty of something. And guess what? Even if you're not guilty of 99 of the 100 counts they bring against you, you're guilty of that one. Hello jail time!

Drug convictions aside, are people actually going to federal prison for made up things?

> That's the government's take on things. They can describe you that same way tomorrow and you can scream "I'm innocent!" all you want ... everyone will still think you're a piece of garbage who deserves it.

This is what happens to people accused of blue-collar crimes, not white collar crimes. White collar crimes carry almost no stigma unless a conviction happens.

> When the United States of America was born, it was the sole country that elected its leaders and had a constitution that was written specifically to restrict government.

What a bunch of historically revisionist bullshit. The Constitution initially restricted the federal government, not the government in general. The states had unlimited power, inherited from the British sovereign, except that which they ceded to the federal government. They could lock you up without trial, take your property, deny you free speech, etc.

To your last point: You might be right, but it doesn't negate the idea of the America he and I wish to see: Something that is trule honest and something to be proud of, regardless of the competition.

You can't be proud of something that generally works pretty well, but has flaws like any other human institution?

Not when those flaws are embraced, justified, and even praised.

Close enough to it, see eg. the Lacey Act. Here's a link to somebody who got a two-year sentence in the US for importing lobster tails packed in plastic bags from Honduras, because under Honduran law it was illegal to do so -- and she went to jail anyway, even though Honduras pointed out that the law is off the books.

http://usgovinfo.about.com/od/rightsandfreedoms/a/alobsterst...

In this week's edition of "Don't Believe Everything You Read on the Internet": http://www.publicaffairs.noaa.gov/releases2004/mar04/noaa04-...

These people went to jail because:

1) It's against (American) federal law to import wildlife taken in violation of the laws of another country;

2) The people in question took substantial measures to hide their smuggling activity;

3) The amount of illegal goods in question here was valued at millions of dollars.

The fact that it was no longer illegal in Honduras doesn't matter, though the reason why is rather esoteric. In criminal matters, liability requires two concurrent elements: 1) an act; 2) a certain state of mind. You have to have both at the same time--one by itself won't do.

E.g. if I'm in the woods hunting and I shoot and kill someone thinking they are a deer, I'm not guilty of murder because while I have engaged in every action required to commit the crime I did not have the requisite state of mind.

Here, they imported wildlife, and they did so with the knowledge/belief that the wild life had been taken in violation of Honduran law. They were mistaken about whether the wild life had actually been taken in violation of Honduran law, but as a general rule mistakes do not change the outcome unless the mistake negates the state of mind. In this case, their mistake did not negate their guilty state of mind. The result seems harsh, but it's just the symmetry of the rule. It's no more conceptually unfair than say holding someone guilty of attempted murder.

AKA thoughtcrime. In other words, they are guilty because they think they are, even though they aren't?

If you go to Nicaragua, and buy what you think is heroin, and smuggle it into the country and it turns out to be baking soda, is it a "thought crime" to punish you for drug smuggling?

Thoughtcrime is definitely the wrong term for this class of unjust punishment.

As krickle said, thoughtcrime (as one word in reference to 1984, of course) is probably the wrong term. Still, outside of violent crimes like murder, I'd prefer to live in a society with a "no harm, no foul" policy. If there is a penalty for thinking you are breaking the law by smuggling lobster tails into the country, but it turns out to be legal anyway, that penalty should be vanishingly small.

Yes. Isn't it? To my mind what you've done there is very obviously not a crime.

> It's against (American) federal law to import wildlife taken in violation of the laws of another country

> The fact that it was no longer illegal in Honduras doesn't matter

Huh? So in your mind, if you're acting suspiciously, even though you've broken no laws ... you should go to jail?

> They were mistaken about whether the wild life had actually been taken in violation of Honduran law, but as a general rule mistakes do not change the outcome unless the mistake negates the state of mind.

Thought crime? Wow.

> It's no more conceptually unfair than say holding someone guilty of attempted murder.

Yeah, see, attempted murder is a crime because you actually tried to kill somebody. Not because you were just in that "state of mind".

The state of mind of a person is relevant in criminal proceedings. It can be the difference between manslaughter and murder.

But it is not and never has been, a crime in itself. And quite frankly, I've never met a rational person who thought it should be.

It's not thought crime, because it's coupled with action. They didn't just think "bad thoughts" they engaged in a whole operation they thought was in violation of the law.

The "crime" = "action" + "state of mind" conceptualization is the result of the Model Penal Code (http://en.wikipedia.org/wiki/Model_Penal_Code), which is an extremely well thought-out systematization of the centuries old principles of Anglo-American penal law.

Ango-American law has always placed a very heavy emphasis on state of mind, though the Model Penal Code is more rigorous about applying the principle. However, it stops far short of punishing thought crimes, because it always requires a guilty state of mind to be accompanied by action.

As for why this is rational, think deeply about the attempted murder example. Consider A plots to murder B, and with that plot in mind buys a gun and heads for B's house. The police catch him and charge him with attempted murder because: 1) he intended to kill B; 2) he took a substantial step towards carrying out his goal. Why do we punish A? Nobody has actually gotten hurt, and B might not even know he was in danger. Moreover, say A unknowingly bought a defective gun that wouldn't shoot. Is he still guilty of attempted murder? Yep. Why? Because he had the required guilty state of mind but not only that he took action while having that guilty state of mind. We don't punish the state of mind by itself, we punish the convergence of guilty state of mind and action.

In this case, the people: 1) intended to smuggle illegally-taken lobster tails; and 2) actually imported the tails. The secret code they used and their failures to report are evidence that they knew or believed they were engaging in illegal activity. Should we punish them? Why not? How is this situation any different? The fact that the tails are legal under Honduran law is merely a fact like the inoperable gun in the previous example.

The fact that the tails are legal under Honduran law is merely a fact like the inoperable gun in the previous example.

I disagree, largely based on the severity of the attempted "crime." Sneakily importing lobster tails that turn out to be legal is more akin to deliberately driving 75 in what you think is a 65 zone, but actually turns out to be an 80 zone (yes, they do exist). Doing so is not worthy of a speeding ticket.

Offenses involving contraband or smuggling are usually strict liability offenses, so mens rea is irrelevant in most such cases.

Even granting applicability of mens rea / actus reus analysis here, I believe your analysis is wrong. It's true that attempting to do something actually illegal and failing is often still an offense (usually of the "attempted" variety), but incorrectly believing that what you intend to do is a crime, when it actually isn't, does not automatically make that act criminal. For example, if you think jaywalking is a crime in a jurisdiction where there is no law against it, that will not in itself render your jaywalking criminal. That would be an absurd result.

Yeah, I refer you to my go-to guy for American law - Aaron Sorkin :

Kaffee: It was oregano, Dave. It was 10 dollars worth of oregano. Lieutenant Dave Spradling: Yeah, but your client thought it was marijuana. Kaffee: My client's a moron that's not against the law. Lieutenant Dave Spradling: Kaffee, I have people to answer to just like you do. I'm going to charge him. Kaffee: With what? Possession of a condiment?

Your interpretation of mens rea is just way off. If I'm driving a propeller boat, and I kill a scuba diver that forgot to post the bouy signalling his presence, then I haven't commited a crime, because I was unaware, and could not reasonably be aware, that there was a scuba diver under my boat.

On the other hand, if there is a bouy, and I drive over the top without killing the diver, and it can be demonstrated that I was intending to harm the diver then yes, I can be convicted for attempted murder. Attempted murder mind you, and not murder itself. This requires that attempted murder be a crime. Back to our erstwhile smugglers, if there is a crime of attempted smuggling then yes, they should go down for it, as they were indeed attempting to smuggle. If the only crime on the books is actual smuggling, then they should waltz out of the courtroom.

> This is what happens to people accused of blue-collar crimes, not white collar crimes.

The original article is about both.

> White collar crimes carry almost no stigma unless a conviction happens.

You know this from experience?

> What a bunch of historically revisionist bullshit. The Constitution initially restricted the federal government, not the government in general. The states had unlimited power

Are you aware that each state has its own constitution? That they are modeled on the federal one? That they enumerate the same rights and today, quite a few more?

My home state of New Jersey adopted its constitution in 1776, right before the Declaration of Independence.

http://en.wikipedia.org/wiki/Constitution_of_New_Jersey

Did you post that link to the 1776 NJ Constitution under the assumption that nobody would actually read it? Because it is more or less the opposite of what you claim:

* It contains no bill of rights

* It explicitly leaves intact the law of England

* It concerns itself primarily with officeholding (available only to those with considerable fortunes for the time under this Constitution) and voting (available only to those exceeding a monetary threshold)

* It establishes a freedom of religion only for Protestants (thinking this might have been some semantic subtlety of the 1770's that I didn't get, I looked into this further and found that not only does "Protestant" mean exactly what it says here, but that other states explicitly forbade Catholics and atheists from holding office at all in their 1776-1778 Constitutions).

I gather you refer to the modern New Jersey Constitution when you praise the additional rights it grants. I don't think 'rayiner is talking about modern Constitutional law; something about how we resolved slavery in the 1800s suggests that maybe he understands that states no longer have unlimited power.

> Did you post that link to the 1776 NJ Constitution under the assumption that nobody would actually read it?

The link I posted doesn't contain the original constitution.

Here is the link to it:

http://www.state.nj.us/njfacts/njdoc10a.htm

> It contains no bill of rights

Neither does the federal one. The bill of rights are actually amendments, which are not included in the main body of text.

> It explicitly leaves intact the law of England

You mean common law? What's your point?

> It concerns itself primarily with officeholding

So did the federal one? Did you even bother reading the US federal constitution?

> It establishes a freedom of religion only for Protestants

This is a blatant falsehood. You should be ashamed of yourself. If you can't understand the text, then keep your mouth shut, instead of spreading nonsense.

Here is the only paragraph that makes a reference to Protestants:

    That there shall be no establishment of any one
    religious sect in this Province, in preference to another; and
    that no Protestant inhabitant of this Colony shall be denied the
    enjoyment of any civil right, merely on account of his religious
    principles; but that all persons, professing a belief in the faith
    of any Protestant sect, who shall demean themselves peaceably
    under the government, as hereby established, shall be capable of
    being elected into any office of profit or trust, or being a
    member of either branch of the Legislature, and shall fully and
    freely enjoy every privilege and immunity, enjoyed by others their
    fellow subjects.

It's fairly plain and obvious, but clearly I have to explain it to you. Protestants were heavily discriminated against in the Old World. That's why they left in large numbers. This passage makes clear that they shall not be discriminated against and "freely enjoy every privilege and immunity, enjoyed by others" ...

That is what I assumed to have been the case too; cursory research suggests, no, it means what it says. All persons professing a belief in the faith of any Protestant sect shall be capable of being elected. The NC Constitution, ratified contemporaneously, is even more explicit. So, while I am of course willing to be wrong (I'm an Illinoisan and wasn't taught the NJ Constitution in grade school as I assume you were), I'm not with you yet.

The rest: if you're suggesting the Bill of Rights isn't an important and defining feature of the Constitutional protections 'rayiner is talking about, I strongly disagree. Obviously, they were amendments, but amendments that were ratified within months of the ratification of the Constitution itself.

Not to put too fine a point on it, but the 1776 NJ Constitution sucked compared to the Federal Constitution. The idea that NJ independently provided protections comparable to that of the US Constitution as of 1791 is false.

White collars crime carrys many stigma and long term consequences.

In many states, you lose your voting rights. You lose your right to own a firearm, hold elected office, and serve in a jury, sometimes permanently. You may lose your ability to practice certain professions.

In some states, the state has the ability to restore your civil rights after a Federal felony conviction via pardon or other procedure. Other states will only recognize a Federal pardon issued by the president. Still others will not restore certain rights in ANY circumstance; New York for example profits a pardoned convicted felon from ever owning a firearm.

They're not made-up things. They're real on-the-books laws and crimes, often used to convict someone who's been deemed undesirable at some level, though the "real" issue cannot be directly addressed.

Look to retrials of persons who've been found innocent of crimes by state courts but are then re-tried in Federal court on related, but distinct charges. Vagrancy laws, sit-lie laws, and the like are used against the homeless (who may in fact be creating other problems). Al Capone was convicted not of racketeering, murder, conspiracy, or smuggling, but of income tax evasion. Stories of traffic stops resulting in drugs charges for incidental possession of prescription narcotics are rife. The kids-for-cash scandal in Wilkes-Barre resulted in juvenile detention stays for minor school offenses, on account of a corrupt relationship between two judges (Mark Ciavarella and Michael Conahan) and the manager of the for-profit detention facility. Similar situations exist in Texas.

The Founders had strong reasons to put restrictions on government in general, both state and federal, due to their experience with both local (crown governors) and national (monarch) levels during the Colonial era.

To put a more useful spin on it, how to solve the following problems:

1. How do we decouple material wealth from a justice system? Can we?

2. How do we prevent ratcheting effects as mentioned in the final paragraph?

3. How do we structure laws so that (1) may be, for example automated?

If you want to engage in criminal activities that will raise the interest of the FBI, is it really a problem that you wouldn't want to "stay in the US and play the game"? I don't think most people would want you playing those kinds of games here.

Were it only that clear cut. Which activities, precisely, are criminal? What if I don't know? What if I do something else, the FBI doesn't care, but I happened to have accidentally banged DA's car door or something? Or cursed at a TSA agent?

There are very bad people out there, and we certainly don't want them--I wouldn't argue that anyway. But there are a lot of technical criminals who probably don't even know it.

Ignorance of the law is no excuse. Never has been, never will be.

That rule assumes that it is possible for a reasonable person to know what actions are within the law and what actions are not. Many laws, particularly those dealing with corporations, the tax code, etc., are so complicated that an ordinary citizen can't possibly know whether they are in compliance or not.

What about people who do intend to work within the law, but are uncomfortable building wealth in a country which may deprive them of that wealth when they need it most? Not only guilty people get indicted. I think the previous commenter was right: this could become an incentive for people to take their business elsewhere, or at least keep more capital offshore.

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