15 ms·

As Criminal Laws Proliferate, More Are Ensnared

136 points by grellas 15y ago

exabrial 15y ago
This is why deregulation is important. I think a perfect government has a slightly liberal congress, with an extremely conservative judicial branch. I'd rather be judged using the original meaning of the constitution rather than some activist judge's interpretation of "the spirit of the constitution that applies today".
dp1234 15y ago
Exactly the reasoning behind never speaking to police as detailed in these 2 videos a while back: http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html 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.
- dustingetz 15y ago
  great vids. the often overlooked flip-side is that cops Don't Like uncooperative people, so you could save yourself a pricey court appearance by cooperating when innocent.
  - dredmorbius 15y ago
    You can assert your rights simply and clearly. 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/very-tough-love http://www.thisamericanlife.org/radio-archives/episode/430/v...
    - dustingetz 15y ago
      True story: traffic cop pulls me over, turns out im doing something wrong and he could have me towed. cop asks to search my car for drugs and weapons. "Do I have the right to refuse this search?" Cop responds that I do, but heavily implies that he will have me towed if I refuse. I consented, he found no drugs or guns, I was allowed to drive away.
      - dredmorbius 15y ago
        True story: I was driving home after a long day out with friends (hiking with some, dinner with another). Started feeling very sleepy, pulled off the freeway to take a nap. Woke with a flashlight in my face and highway patrol knocking on my window. 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.
        sliverstorm 15y ago
        And it is up to each individual to elect when to assert them. That's another one of our rights.
        dredmorbius 15y ago
        Given the premise of the original article, electing not to assert your rights isn't particularly safe. 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.
lhnn 15y ago
Is this Hacker News? I suppose it might be tied to our theme by the story of the inventor. 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.
- brazzy 15y ago
  What I don't understand (as a non-US-citizen, mind you) is how the fact that these are federal laws is relevant at all. It sounds to me like the problem is the number of obscure laws, the vagueness of the offenses, and the lack of mens rea requirement. 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?
  - jeangenie 15y ago
    IANAL but it's bad for citizens because it gives federal courts wider purview on what they'll prosecute for and how they punish for it; needless to say, if your case is getting pushed to federal courts you're fucked, especially when you're being charged under statutes you've never heard of rather than state laws which you may or may not know.
    - brazzy 15y ago
      Not "needless to say" at all. Why are you more fucked in a federal court than in a state court? Why would you be more likely to have never heard of a given federal statue than a given state law?
  - lhnn 15y ago
    >It sounds to me like the problem is the number of obscure laws, the vagueness of the offenses, and the lack of mens rea requirement. 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.
RexRollman 15y ago
People complain about activist judges but I think a bigger problem is activist prosecuters who look to stretch the law to include targets that were not intended by the law. The biggest example of this that I can think of is the anti-hacking laws that are being made to charge people of simply using a web browser.
- dredmorbius 15y ago
  I'd argue it's flagrant abuse of the death penalty, to the extent that several states (Illinois, New Jersey, New Mexico, New York) have banned it since 2000 on constitutional / equitable use grounds. The politicization of prosecution makes certain punishments untenable. 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.php http://www.innocenceproject.org/Content/The_Death_Penalty.ph... Not that I disagree with your basic premise of prosecutorial misconduct.
  - RexRollman 15y ago
    You mention people of limited means. Without a doubt in my mind, the government often uses the inability of people to afford a good lawyer to convict them. And from what I have seen, public defenders leave a lot to be desired. 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.
- _delirium 15y ago
  You can see that in the comment from a prosecutor quoted in the piece that refers to "options". If you really wanted to ban some kind of behavior, the ideal outcome would be that everyone who does it is arrested, and nobody who doesn't. But from law-enforcement's perspective what they often want are "options" for prosecution--- so that when they find someone who they're pretty sure deserves to be arrested, they can dig up a statute that justifies the arrest. In that setting you actually want them as broad as possible, so you always have something in your back pocket to get someone with. Of course you don't prosecute everyone who uses a web browser... but if you find someone doing something "bad" but in a way that isn't specifically criminalized, it's always nice to have that "did a bad thing while using a webbrowser" charging option, eh? 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.
thinkcomp 15y ago
Thanks to the State of California, virtually every private university president and trustee is now a criminal, too. http://www.quora.com/Aaron-Greenspan/The-California-Law-That-Should-Send-The-President-and-Fellows-of-Harvard-College-and-Every-Private-University-To http://www.quora.com/Aaron-Greenspan/The-California-Law-That...
- Alex3917 15y ago
  Meh, every single person in the US is already a felon. We all possess schedule I drugs in our bodies[1], and there is plenty of legal precedent saying that you can be convicted of narcotics possession for drugs that are in your body. [1] DMT, 5-MeO-DMT, Anandamide, etc.
  - Cushman 15y ago
    That's a great critique of the CSA, but it's not really legally relevant. No court would convict for possession of endogenous DMT, and then that would be the precedent. Or to put it more simply, you're innocent until proven guilty. Felon means conviction.
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    - bediger 15y ago
      You're quibbling. I mean, I understand that legally, one has to obtain a conviction to refer to someone as a felon, but practically, that's not the case, not with activist DAs floating around, trying to make a name for themselves as "tough on crime".
      - Cushman 15y ago
        Yeah, that's a fair point. But what I was getting at is that no one has ever been convicted for endogenous possession, and no one ever will, so in this case my point stands.
maqr 15y ago
"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for 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." -- Ayn Rand
- mkn 15y ago
  I'm probably going overboard by responding to both the Rand fanboy quotes, but here goes. 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".
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tuoru 15y ago
I have no problem whatsoever with a law that criminalizes stealing arrowheads, or other artifacts, from archaeological sites. I have no problem with laws that prohibit poisoning water, dumping chemicals, killing endangered species, or other environmental crimes. So, if this is proliferation, please sign me up for more. I know that these things were not crimes fifty years ago, but we are better off now for having these laws. Sure, there are some stupid ones, like the Smokey Bear thing, but come on--has anyone been charged with that law?
- georgieporgie 15y ago
  The laws are poorly written if they don't differentiate between criminal intent versus perfectly reasonable ignorance.
  - ctdonath 15y ago
    ...versus perfectly reasonable behavior.
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  - baha_man 15y ago
    Ignorance of a law is normally not considered an excuse for breaking it: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
- bugsy 15y ago
  I hope you read more of the article than the first paragraph and realized they were not at an archeological site and did not steal any arrowheads, they were merely looking for them as a father and son hobby. No arrowheads were found, but the act of merely looking is criminal, which they were not aware of.
  - tuoru 15y ago
    I value your contribution to this discussion, but you might have missed this part of the article: "Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said."
forgotAgain 15y ago
Given the source of the story this is more about reducing corporate regulations than supporting personal rights.
padobson 15y ago
'Current law provides a range of options to protect society, he says. "It would be horrible if they started repealing laws and taking those options away."' 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.
- dpatru 15y ago
  > 'Current law provides a range of options to protect society, he says. "It would be horrible if they started repealing laws and taking those options away."' 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".)
  - daemin 15y ago
    This old saying comes to mind: If you give me six lines written by the most honest man, I will find something in them to hang him. -- Cardinal de Richelieu
ctdonath 15y ago
"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for 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 then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with." - Ayn Rand
- mkn 15y ago
  I don't find that to be the most plausible mechanism for the proliferation of laws at all. More likely, it's an emergent property of the legal system in a democratic context that can probably be explained in terms of game theory. At any legislative junction, there's a cost or benefit associated with enacting or not enacting a law. Take the arrowhead removal example from the article. You're a lawmaker and you're faced with the problem of people pilfering Native American artifacts, and this law is presented to you. Which side are you going to be on? The side of desecration? Or the side of preservation? Boom. Another law. At each juncture, there's a good reason to pass another law. 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.
ReneeKline 15y ago
I paid $32.68 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to our house tomorrow by FedEX. I will never again pay expensive retail prices at stores. I even sold a 46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get all this stuff, GrabCent.com
vacri 15y ago
Roscoe Howard, the former U.S. Attorney for the District of Columbia, argues that the system "isn't broken." 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.
- sliverstorm 15y ago
  There could be other interpretations to that, besides "we are less free!" 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?
  - vacri 15y ago
    People aren't all that different, and generally want the same things. Besides, the US isn't that much freer than its first-world contemporaries. For example, although we in Australia don't have constitutionally-protected freedom of speech, the Press Freedom Index puts us as having more freedom of public speech than in the US, and both of us are well below most of the northern European states. http://en.rsf.org/press-freedom-index-2010,1034.html 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.
    - sliverstorm 15y ago
      Another possible explanation that occurs to me today: the punishments in America are greater. The guy who bombed Oslo and killed 80-some kids in Norway is allegedly facing a max of something like 25 years. He'd get multiple life sentences in America.
      - arethuza 15y ago
irons 15y ago
The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws—as opposed to state or local laws—as the federal justice system has dramatically expanded its authority and reach. "Who could have predicted that breaking into people's voicemail was going to cause such a fuss?"
v21 15y ago
And once you're in jail... > 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_how_corporations_exploit_prison_labor/ http://www.alternet.org/world/151732/21st-century_slaves%3A_...
kingkawn 15y ago
It is cute to point out the guys getting busted for searching for arrowheads, but upwards of 85% of the people in prison in the US are black or hispanic. I'd guess that an even larger percentage are poor. This process is not without a target.
- dpatru 15y ago
  A criminal defense lawyer once told me that he was convinced that certain police officers had a personal mission to make sure that every black boy in certain neighborhoods has a criminal record by the time he is an adult.
jfoutz 15y ago
Good to see Mr. Murdoch's paper pushing a healthy respect for the law.
chadp 15y ago
Welcome to the USA, land of the free...
noonespecial 15y ago
What really disappoints me is that we apparently have people who have been trusted with enormous power by the citizenry (the prosecutors) who seem wholly incapable of taking a step back and asking themselves, "is this discretionary action I'm about to take to prosecute these people going to make the world better or worse?" and then acting reasonably.
code_duck 15y ago
Copyright and drug laws are the two largest offenders in this respect. Check out the recent moves the the US Congress to make linking to the 'wrong' site a felony (the '10 Strikes' legislation). 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.
hadronzoo 15y ago
"And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt." —Tacitus, Annals Book III, 27
Hominem 15y ago
Of course there should be a law against taking artifacts from archaeologic sites and laws against disturbing the sites by digging. These sites should be posted though, much the same private land is posted "no hunting". Instead of throwing the law out, require that the onus be on the site owner to inform people that the site is, in fact, protected.

136 points by grellas 15y ago

This is why deregulation is important. I think a perfect government has a slightly liberal congress, with an extremely conservative judicial branch. I'd rather be judged using the original meaning of the constitution rather than some activist judge's interpretation of "the spirit of the constitution that applies today".

dp1234 15y ago

Exactly the reasoning behind never speaking to police as detailed in these 2 videos a while back: http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html 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.

dustingetz 15y ago
great vids. the often overlooked flip-side is that cops Don't Like uncooperative people, so you could save yourself a pricey court appearance by cooperating when innocent.
- dredmorbius 15y ago
  You can assert your rights simply and clearly. 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/very-tough-love http://www.thisamericanlife.org/radio-archives/episode/430/v...
  - dustingetz 15y ago
    True story: traffic cop pulls me over, turns out im doing something wrong and he could have me towed. cop asks to search my car for drugs and weapons. "Do I have the right to refuse this search?" Cop responds that I do, but heavily implies that he will have me towed if I refuse. I consented, he found no drugs or guns, I was allowed to drive away.
    - dredmorbius 15y ago
      True story: I was driving home after a long day out with friends (hiking with some, dinner with another). Started feeling very sleepy, pulled off the freeway to take a nap. Woke with a flashlight in my face and highway patrol knocking on my window. 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.
      - sliverstorm 15y ago
        And it is up to each individual to elect when to assert them. That's another one of our rights.
        dredmorbius 15y ago
        Given the premise of the original article, electing not to assert your rights isn't particularly safe. 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.

lhnn 15y ago

Is this Hacker News? I suppose it might be tied to our theme by the story of the inventor. 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.

brazzy 15y ago
What I don't understand (as a non-US-citizen, mind you) is how the fact that these are federal laws is relevant at all. It sounds to me like the problem is the number of obscure laws, the vagueness of the offenses, and the lack of mens rea requirement. 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?
- jeangenie 15y ago
  IANAL but it's bad for citizens because it gives federal courts wider purview on what they'll prosecute for and how they punish for it; needless to say, if your case is getting pushed to federal courts you're fucked, especially when you're being charged under statutes you've never heard of rather than state laws which you may or may not know.
  - brazzy 15y ago
    Not "needless to say" at all. Why are you more fucked in a federal court than in a state court? Why would you be more likely to have never heard of a given federal statue than a given state law?
- lhnn 15y ago
  >It sounds to me like the problem is the number of obscure laws, the vagueness of the offenses, and the lack of mens rea requirement. 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.

RexRollman 15y ago

People complain about activist judges but I think a bigger problem is activist prosecuters who look to stretch the law to include targets that were not intended by the law. The biggest example of this that I can think of is the anti-hacking laws that are being made to charge people of simply using a web browser.

dredmorbius 15y ago
I'd argue it's flagrant abuse of the death penalty, to the extent that several states (Illinois, New Jersey, New Mexico, New York) have banned it since 2000 on constitutional / equitable use grounds. The politicization of prosecution makes certain punishments untenable. 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.php http://www.innocenceproject.org/Content/The_Death_Penalty.ph... Not that I disagree with your basic premise of prosecutorial misconduct.
- RexRollman 15y ago
  You mention people of limited means. Without a doubt in my mind, the government often uses the inability of people to afford a good lawyer to convict them. And from what I have seen, public defenders leave a lot to be desired. 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.
_delirium 15y ago
You can see that in the comment from a prosecutor quoted in the piece that refers to "options". If you really wanted to ban some kind of behavior, the ideal outcome would be that everyone who does it is arrested, and nobody who doesn't. But from law-enforcement's perspective what they often want are "options" for prosecution--- so that when they find someone who they're pretty sure deserves to be arrested, they can dig up a statute that justifies the arrest. In that setting you actually want them as broad as possible, so you always have something in your back pocket to get someone with. Of course you don't prosecute everyone who uses a web browser... but if you find someone doing something "bad" but in a way that isn't specifically criminalized, it's always nice to have that "did a bad thing while using a webbrowser" charging option, eh? 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.

thinkcomp 15y ago

Thanks to the State of California, virtually every private university president and trustee is now a criminal, too. http://www.quora.com/Aaron-Greenspan/The-California-Law-That-Should-Send-The-President-and-Fellows-of-Harvard-College-and-Every-Private-University-To http://www.quora.com/Aaron-Greenspan/The-California-Law-That...

Alex3917 15y ago
Meh, every single person in the US is already a felon. We all possess schedule I drugs in our bodies[1], and there is plenty of legal precedent saying that you can be convicted of narcotics possession for drugs that are in your body. [1] DMT, 5-MeO-DMT, Anandamide, etc.
- Cushman 15y ago
  That's a great critique of the CSA, but it's not really legally relevant. No court would convict for possession of endogenous DMT, and then that would be the precedent. Or to put it more simply, you're innocent until proven guilty. Felon means conviction.
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  - bediger 15y ago
    You're quibbling. I mean, I understand that legally, one has to obtain a conviction to refer to someone as a felon, but practically, that's not the case, not with activist DAs floating around, trying to make a name for themselves as "tough on crime".
    - Cushman 15y ago
      Yeah, that's a fair point. But what I was getting at is that no one has ever been convicted for endogenous possession, and no one ever will, so in this case my point stands.

maqr 15y ago

"There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for 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." -- Ayn Rand

mkn 15y ago
I'm probably going overboard by responding to both the Rand fanboy quotes, but here goes. 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".

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tuoru 15y ago

I have no problem whatsoever with a law that criminalizes stealing arrowheads, or other artifacts, from archaeological sites. I have no problem with laws that prohibit poisoning water, dumping chemicals, killing endangered species, or other environmental crimes. So, if this is proliferation, please sign me up for more. I know that these things were not crimes fifty years ago, but we are better off now for having these laws. Sure, there are some stupid ones, like the Smokey Bear thing, but come on--has anyone been charged with that law?

georgieporgie 15y ago
The laws are poorly written if they don't differentiate between criminal intent versus perfectly reasonable ignorance.
- ctdonath 15y ago
  ...versus perfectly reasonable behavior.
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- baha_man 15y ago
  Ignorance of a law is normally not considered an excuse for breaking it: http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat http://en.wikipedia.org/wiki/Ignorantia_juris_non_excusat
bugsy 15y ago
I hope you read more of the article than the first paragraph and realized they were not at an archeological site and did not steal any arrowheads, they were merely looking for them as a father and son hobby. No arrowheads were found, but the act of merely looking is criminal, which they were not aware of.
- tuoru 15y ago
  I value your contribution to this discussion, but you might have missed this part of the article: "Wendy Olson, the U.S. Attorney for Idaho, said the men were on an archeological site that was 13,000 years old. "Folks do need to pay attention to where they are," she said."

forgotAgain 15y ago

Given the source of the story this is more about reducing corporate regulations than supporting personal rights.

padobson 15y ago

'Current law provides a range of options to protect society, he says. "It would be horrible if they started repealing laws and taking those options away."' 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.

dpatru 15y ago
> 'Current law provides a range of options to protect society, he says. "It would be horrible if they started repealing laws and taking those options away."' 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".)
- daemin 15y ago
  This old saying comes to mind: If you give me six lines written by the most honest man, I will find something in them to hang him. -- Cardinal de Richelieu

ctdonath 15y ago

"Did you really think that we want those laws to be observed?" said Dr. Ferris. "We want them broken. You'd better get it straight that it's not a bunch of boy scouts you're up against - then you'll know that this is not the age for beautiful gestures. We're after power and we mean it. You fellows were pikers, but we know the real trick, and you'd better get wise to it. There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for 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 then you cash in on guilt. Now, that's the system, Mr. Rearden, that's the game, and once you understand it, you'll be much easier to deal with." - Ayn Rand

mkn 15y ago
I don't find that to be the most plausible mechanism for the proliferation of laws at all. More likely, it's an emergent property of the legal system in a democratic context that can probably be explained in terms of game theory. At any legislative junction, there's a cost or benefit associated with enacting or not enacting a law. Take the arrowhead removal example from the article. You're a lawmaker and you're faced with the problem of people pilfering Native American artifacts, and this law is presented to you. Which side are you going to be on? The side of desecration? Or the side of preservation? Boom. Another law. At each juncture, there's a good reason to pass another law. 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.

ReneeKline 15y ago

I paid $32.68 for a XBOX 360 and my mom got a 17 inch Toshiba laptop for $94.83 being delivered to our house tomorrow by FedEX. I will never again pay expensive retail prices at stores. I even sold a 46 inch HDTV to my boss for $650 and it only cost me $52.78 to get. Here is the website we using to get all this stuff, GrabCent.com

vacri 15y ago

Roscoe Howard, the former U.S. Attorney for the District of Columbia, argues that the system "isn't broken." 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.

sliverstorm 15y ago
There could be other interpretations to that, besides "we are less free!" 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?
- vacri 15y ago
  People aren't all that different, and generally want the same things. Besides, the US isn't that much freer than its first-world contemporaries. For example, although we in Australia don't have constitutionally-protected freedom of speech, the Press Freedom Index puts us as having more freedom of public speech than in the US, and both of us are well below most of the northern European states. http://en.rsf.org/press-freedom-index-2010,1034.html 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.
  - sliverstorm 15y ago
    Another possible explanation that occurs to me today: the punishments in America are greater. The guy who bombed Oslo and killed 80-some kids in Norway is allegedly facing a max of something like 25 years. He'd get multiple life sentences in America.
    - arethuza 15y ago

irons 15y ago

The Andersons are two of the hundreds of thousands of Americans to be charged and convicted in recent decades under federal criminal laws—as opposed to state or local laws—as the federal justice system has dramatically expanded its authority and reach. "Who could have predicted that breaking into people's voicemail was going to cause such a fuss?"

v21 15y ago

And once you're in jail... > 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_how_corporations_exploit_prison_labor/ http://www.alternet.org/world/151732/21st-century_slaves%3A_...

kingkawn 15y ago

It is cute to point out the guys getting busted for searching for arrowheads, but upwards of 85% of the people in prison in the US are black or hispanic. I'd guess that an even larger percentage are poor. This process is not without a target.

dpatru 15y ago
A criminal defense lawyer once told me that he was convinced that certain police officers had a personal mission to make sure that every black boy in certain neighborhoods has a criminal record by the time he is an adult.

jfoutz 15y ago

Good to see Mr. Murdoch's paper pushing a healthy respect for the law.

chadp 15y ago

Welcome to the USA, land of the free...

noonespecial 15y ago

What really disappoints me is that we apparently have people who have been trusted with enormous power by the citizenry (the prosecutors) who seem wholly incapable of taking a step back and asking themselves, "is this discretionary action I'm about to take to prosecute these people going to make the world better or worse?" and then acting reasonably.

code_duck 15y ago

Copyright and drug laws are the two largest offenders in this respect. Check out the recent moves the the US Congress to make linking to the 'wrong' site a felony (the '10 Strikes' legislation). 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.

hadronzoo 15y ago

"And now bills were passed, not only for national objects but for individual cases, and laws were most numerous when the commonwealth was most corrupt." —Tacitus, Annals Book III, 27

Hominem 15y ago

Of course there should be a law against taking artifacts from archaeologic sites and laws against disturbing the sites by digging. These sites should be posted though, much the same private land is posted "no hunting". Instead of throwing the law out, require that the onus be on the site owner to inform people that the site is, in fact, protected.