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> airtight enforcement of all laws is a serious threat to liberty Only because "all laws" now includes all manner of micromanagement of people's lives by the g

• staticassertion 4y ago
  People complain about lack of discretion with murder - that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. Discretion is fundamental to the legal system. Any system that doesn't allow discretion is going to be a disaster - the world is complex, there's always nuance. It also leads to abuse, but I reject the idea that strict enforcement would solve abuse - but you've basically said "some laws" are bad laws so it's hard to say. I suspect you're just saying "government should stay out of everything, that way people are free", and you're ignoring the fact that in a system like that no one's stopping a bunch of assholes from shitting on everyone else because it's not illegal.
  • pdonis 4y ago
    > People complain about lack of discretion with murder I don't think people complain about lack of discretion with murder. I think people complain about too much discretion: obvious murderers are allowed to go free because of technicalities or political influence. > that's why we have multiple degrees, and it's a matter of discretion (by many parties) which was committed. No, it's a matter of discretion which gets charged, in the sense that the prosecutor cannot be forced to bring one particular charge or another; it's the prosecutor's choice. But in most cases, which charge best fits a particular set of facts should not be difficult to determine. And in a sane legal system which only focused on protecting basic rights instead of trying to micromanage everything, it wouldn't be. > Discretion is fundamental to the legal system. Discretion in rare edge cases is fundamental to the legal system. But as I commented elsewhere in this thread, if the need for discretion is common, then we aren't talking about edge cases; we're talking about a legal system that has gotten out of hand. > I suspect you're just saying "government should stay out of everything, that way people are free" I have no idea where you're getting that from since I explicitly said the government's basic job is to protect people's basic rights.
    • staticassertion 4y ago
      > I don't think people complain about lack of discretion with murder. I think people complain about too much discretion: obvious murderers are allowed to go free because of technicalities or political influence. Discretion is literally built in ie: intent, malice, negligence, etc - these are all subjective judgments that I think any sane person supports. Accidentally killing someone should be treated very differently from planned murder - and we use subjective judgment to determine the case. > No, it's a matter of discretion which gets charged, in the sense that the prosecutor cannot be forced to bring one particular charge or another; it's the prosecutor's choice. But in most cases, which charge best fits a particular set of facts should not be difficult to determine. And in a sane legal system which only focused on protecting basic rights instead of trying to micromanage everything, it wouldn't be. First off, no, it is not the prosecutor's sole discretion. Obviously the prosecution (which is many people who form a consensus) brings the charges, but the defense may attempt a plea for a different charge, and the judge will instruct the jury on how to determine a conviction. Discretion is fundamental to the entire process, as it should be. Second, notice that you're already saying things like "in most cases" ie: things are not 100% one way or the other. > Discretion in rare edge cases is fundamental to the legal system. But as I commented elsewhere in this thread, if the need for discretion is common, then we aren't talking about edge cases; we're talking about a legal system that has gotten out of hand. Discretion is already selectively applied. Not every case goes to a jury. We have different types of discretion, like civil law or arbitration. What no one is asking for is less discretion. "Zero tolerance" black and white policies are pretty much a disaster. > I have no idea where you're getting that from since I explicitly said the government's basic job is to protect people's basic rights. Maybe you should come out and say what those basic rights are and are not?
      • pdonis 4y ago
        > these are all subjective judgments that I think any sane person supports They are legal judgments that in the end, if the case goes to trial, get made by juries. They are only "subjective" in that no person can truly see inside the mind of another, so everyone has to make their best judgment based on what they can see. That's not at all the same as law enforcement selectively enforcing micromanagement laws--my usual go-to example is laws against speeding. Nobody even pretends that enforcement of speeding laws is a reasonable use of discretion on the part of law enforcement: enforcement is based on using such laws as a revenue source. The CFAA is the same kind of thing: as I asked in another post upthread, since fraud is already illegal, why should using a computer to commit fraud be any different from committing fraud some other way? Why not just enforce the laws we already have against fraud? > it is not the prosecutor's sole discretion. Obviously the prosecution (which is many people who form a consensus) brings the charges, but the defense may attempt a plea for a different charge Again, this kind of "discretion" is not the same as the kind of "discretion" involved in enforcement of micromanaging laws like speeding laws. Obviously each party in the legal process has to make judgments. Prosecutors have to decide what charges the facts they have will support. Defense lawyers have to decide how best to defend their clients given what they know. But in a sane legal system, prosecutors should not be deciding which cases to aggressively prosecute based on political considerations (e.g., how Aaron Swartz was treated), and defense lawyers should not have to decide whether to advise their clients to accept a plea bargain based on how full the court's docket is. Nor, to get back to the subject of this thread, should prosecutors be deciding whether "white hat" security researchers are committing a crime. That should not even be on their radar. But with the CFAA, it is. And we're supposed to be so pleased that now the prosecutors will be less draconian in making such judgments than they were before. > Maybe you should come out and say what those basic rights are and are not? Um, how about the right not to be murdered or defrauded? Do those count?
• robonerd 4y ago
  > Nobody complains about "airtight enforcement" of laws against, for example, murder. Even then, there is prosecutorial discretion. There are all kinds of edge cases, like brainwashed/abused accomplices, and the gray areas between murder, manslaughter, and self defense, or between different degrees of murder. It's easy to say all the real murders should be charged as such, but which are those? Just about any homicide could turn into a murder trial, if the prosecutor were so inclined, but not all of them should turn into a murder trial.
  • pdonis 4y ago
    > Just about any homicide could turn into a murder trial, if the prosecutor were so inclined In a sane legal system, this would not be true. That is my basic point. The fact that it is true in our legal system is a bug, not a feature.