Enforcing the law...

[Freakshow]

This thread is being started in response to a conversation we had going in the thread about Southwest kicking a person out because of her shirt.

My degree is in Law Enforcement. Many of the instructors were retired or active-duty law enforcement personnel. Including some high-ranking officers of local police departments.

One of the professors worked at a local police department that covered an area that had a very high violent crime rate. Lots of gang activity, and lots of drug trafficking. The deparment had one Chief, with 3 Majors below him. This professor was one of those 3 Majors, and is now the Chief. He did not need to teach a couple classes at night because of the money. He did it only because he wanted to positively influence the next generation of law enforcement officers. He is highly intelligent, well educated, vastly experienced, and dedicated. I don't respect people easily, but I certainly respected him.

The point of all that build up is to make sure that it is clear that this individual is very serious about the field of law enforcement. He has dedicated his entire adult life to it.

Which is why I was shocked (at the time) to hear him say the following in class one night: "I don't want to live in a society that enforces every infraction of every law, to the letter of the law."

That was a pretty shocking thing to hear from someone that is such a serious, hardcore law-and-order person. But after more thought, I understood what he meant and came to agree with it.

There are two ways to look at this:
1: He is right. We need human thought and common sense involved in every aspect of enforcing the law.
2: He is wrong. If a law should not always be enforced to the letter of the law, then the law itself is flawed, and needs to be changed.

I am with option #1. There are a couple of reasons for that. One is that we can sometimes fight a larger problem by overlooking a smaller problem. Such as granting immunity to one person who has commited crimes, in order to get at other people that have committed much more serious crimes. It might not be the ideal, perfect solution. But we don't live in an ideal, perfect world. We must do the best we realistically can. Another reason that I think he is right is that it would be nearly impossible to create a system of laws that could function properly and practically in a society in which all laws were always enforced fully, in all situations.

So...now the discussion starts. Thoughts?

 

[Melendwyr]

One is that we can sometimes fight a larger problem by overlooking a smaller problem. Such as granting immunity to one person who has commited crimes, in order to get at other people that have committed much more serious crimes. It might not be the ideal, perfect solution. But we don't live in an ideal, perfect world. We must do the best we realistically can.

An interesting and well-put topic.

My objection: what is the "best we realistically can [do]"? I don't ask this rhetorically. What is it, actually? Any accurate description of the best that's possible would be the foundation for a proper system of laws that would create that condition. Any failure to enforce those laws fully would by definition involve doing less than the best possible, and preferring that the laws not be fully and completely enforced would be equivalent to preferring a worse society to a better one, which is just silly.

If there's some principle that would lead us to not enforce a particular law, then that principle should be described in another, overriding law.

 

[CBL4]

I would choose 1.5, the law should be enforced to the spirit of the with only rare exceptions. Giving justice people some discretion makes sense but it should be limited. If the discretion is too much, it leads to acts of legal extortion and favortism.

For example, if you are under 21 in Nevada, possession of any marijuana is a felony with a sentence of 1 to 4 years. The reality is that virtually no one gets a 4 years sentence but it can always be use as a threat to extort some behavior such as a confession or ratting someone else.

Another example, a woman accused a man of some sort of assault. The man was arrested and charged with a crime that had a 1 year jail term. At his arraignment, he pled inocent. He was immediately charged with additional crimes that had a 9 year sentence because the DA used his "discretion" to legally extort a confession. It is legal to extort a confession with the threat of additional jail time but it is illegal to extort a confession with with the threat of a beating.

As to buying snitches with reduced prison terms, this is the worst law in our current legal system. It legal to buy testimony with a reduced testimony but it is illegal to buy testimony with money.

I do not understand why prison time is legal tender (or threat) where other things are not.

CBL

 

[Manny]

I agree with CBL4. On the one hand, I agree that simple human judgement is a valuable part of law enforcement. On the other hand, an unenforced law is a recipe for future uneven enforcement. What if it turns out that cops are selectively enforcing a street vendor law against people who sell politically objectionable art (as happened during the Guiliani administration) or speeding laws against black and hispanic people as a lever to get access to their cars to search for other infractions (as was the policy of the New Jersey State Police for many years)? It's hard to track -- who writes reports on infractions not written?

So whilst I agree with you, I also warn that it's extremely difficult to have a system like that (which is the one we have in pretty much all western countries). Difficult enough that sometimes seems something of a miracle that democratic societies can exist at all. Constant vigilance is necessary.

 

[a_unique_person]

If you have ever tried to write a computer program, you soon realise the limits of pure logic. While a computer system is possible to eventually tame, using just logic, after a tortuous process of testing and debugging, the idea that every law can be written in unambiguous, flawless logic is absurd. It isn't ever going to happen.

When I did sociology, one of the points raised was that, given we are stuck with a legal system that does depend on humans interpreting the law, what are the implications of that. The claim was that kids from a 'good' neighbourhood caught doing something bad are given a warning and sent on their way, while kids from a 'bad' one are given a much harder time.

 

[Melendwyr]

If you have ever tried to write a computer program, you soon realise the limits of pure logic.

I disagree. Writing code quickly leads one to realize just how bad humans are at handling explicit logic.

Our reliance on "understood", implicit reasoning makes us vulnerable to all kinds of shoddy thought.

 

[Atlas]

Manny mentioned speed laws. Where I'm from rush hour is exactly that and speeds can be well above the limit with cops driving with the flow. The only ones stopped are drivers recklessly weaving from lane to lane speeding from opening to opening.

I think laws that everybody dismisses for moments like rush hour aid the smooth functioning of society. I think it's the cops jobs to make sure we're doing it safely.

AUP mentions good neighborhood and bad neighborhood selective enforcement. There is also a related selective enforcement which I've heard of but don't understand.

That is, people up for crimes that result in fines - If you don't have the money you may be charged with a lesser crime but if you do have the wherewithal to pay you'll have to pay the fine. This though is possibly handled as often by a judge as an arresting officer.

Similarly, if a first timer is picked up and charged for a crime and a more experienced criminal is brought in for the same activity, the more experienced guy is given an opportunity to plead to a lesser crime and the same opportunity is not offered to the first timer.

I realize that many first timers are merely scolded by judges and let off - I think that's good for most people. A brush with the law is sobering. But when serial criminals can plead to lesser crimes and a first timer cannot, I don't get it.

I don't know how often this happens. It happened to a buddy on a drug related charge. His lawyer could not plead my buddy down, as he had successfully done in many other similar cases. He was facing some serious time. The lawyer was good and got him into some programs that resulted in a pretty lenient sentence - basically probation.

It was a good decision and sentence. He's got a good job and has had no run ins with the law for the last 7 years. So I agree with option 1. Good sense in enforcement and sentencing helps society function better.

 

[a_unique_person]

AUP mentions good neighborhood and bad neighborhood selective enforcement. There is also a related selective enforcement which I've heard of but don't understand.

That is, people up for crimes that result in fines - If you don't have the money you may be charged with a lesser crime but if you do have the wherewithal to pay you'll have to pay the fine. This though is possibly handled as often by a judge as an arresting officer.

I think the problem is that a lot of people who are fined cannot afford the fine, and go to prison. Reducing the fine means one less person being brutalised for a crime that a wealthier person would have not been sent to jail for.

 

[AmateurScientist]

Good topic, Freakshow.

In my opinion, 1 and 2 are not necessarily mutually exclusive. I agree with 1 in that judgment and discretion are essential to the dispensing of justice and equity, given the nearly infinite variety in the sets of facts that can arise in actual enforcement. Robots or computers cannot weigh aggravating and mitigating factors and reach equitable results. 2 might sometimes be true, and there are certainly criminal laws that shouldn't be in force.

There is another aspect to law enforcement, whether it is in a criminal or civil arena. That is the spirit of the law. Sometimes the letter and the spirit are not one and the same, given a set of factual circumstances. We often see appellate decisions in which the court examines the legislative intent to determine the purpose behind the law. If the legislature did not intend to address the issue present in a given case, perhaps the law should not be applied to it. Sometimes laws are strictly construed by their own terms or by the rules of statutory construction, and sometimes they are liberally construed to do substantial justice. Sometimes all doubts are resolved in favor of one party against the other.

Human judgment is an essential part of justice. Without it, robots or computers could administer it, and that will never be the case, nor should it be. We need judges, and we need police officers and prosecutors to continue to exercise their own judgment when appropriate.

The short answer to your question is "It depends."

AS

 

[BPSCG]

If you have ever tried to write a computer program, you soon realise the limits of pure logic. While a computer system is possible to eventually tame, using just logic, after a tortuous process of testing and debugging, the idea that every law can be written in unambiguous, flawless logic is absurd. It isn't ever going to happen.

a_u_p, there may be hope for you yet.

Last time I saw a "perfect" program, it did nothing but spit out the words, "Hello, World!" It did it perfectly, but it was of (ahem) limited utility.

I use another program every day now, as do millions of other people. It's called Microsoft Windows XP. Anyone care to argue that XP is perfect, unflawed?


(...crickets...)


I didn't think so. Well, that Windows XP has a relatively simple task - to keep my computer, which probably has the intelligence, if not physical complexity, of a bacterium, running smoothly. It does it pretty well, though not perfectly.

Anyone care to argue that a human society is less complex than a laptop computer?


(...crickets...)


I didn't think so. Well, if we can't write perfect operating system programs for our computers, who in his right mind thinks that we can write perfect operating systems for our societies?

So, yeah, you have to have a certain amount of human judgement in applying the laws, because the laws are not and can not be perfect. Sometimes that human judgement will fail, and if the failure is catastrophic enough, will lead to changes in the laws. But that doesn't mean every law must be re-written and tweaked until it's perfect, because then the only laws we'll have will be the equivalent of "Hello, World!"

I routinely jaywalk on my way to work. Should I be arrested? Or should teams of legislators, lawyers, judges, and citizen groups convene to re-write the anti-jaywalking statutes?

 

[Melendwyr]

I very much doubt that you could manage a computer's function in realtime, BPSCG.

More to the point, this statement:

So, yeah, you have to have a certain amount of human judgement in applying the laws, because the laws are not and can not be perfect.

is wrong.

What would constitute perfection? Whatever you describe can be made into law. If you can't describe what it would mean for your computer to work perfectly, or even narrow it down a little, you have no grounds to say that any random system doesn't accomplish that task.

I also think it's interesting that AmateurScientist is bringing the question of artificial intelligence into this debate.

 

[BPSCG]

I very much doubt that you could manage a computer's function in realtime, BPSCG.

I have no doubt.

(...that I could not, lest the point be misunderstood).

But has the computer chip yet been developed that could manage, in real time, the functions of life, even on the microscopic scale? I don't believe so, though if someone can show mewhere I'm wrong, I'll be happy to retract (my bacterium comment was based on an interview with a computer scientist I read about five years ago).

So are you arguing that XP is a perfect operating system? Or are you arguing that my laptop is more complex than society?

If XP is not a perfect operating system, why doesn't Microsoft make it perfect?

If you can't describe what it would mean for your computer to work perfectly, or even narrow it down a little, you have no grounds to say that any random system doesn't accomplish that task.

Ah, but the object isn't for the computer (analogue: society) to work perfectly; the object is for the operating system (analogue: laws governing society's behavior) to work perfectly.

Humanity has been trying to get the code for society's perfect operating system for about 4000 years now, since the Code of Hammurabi. What's the holdup?

 

[Melendwyr]

But has the computer chip yet been developed that could manage, in real time, the functions of life, even on the microscopic scale?

Nanotech devices can manage that. They're called bacteria.

So are you arguing that XP is a perfect operating system? Or are you arguing that my laptop is more complex than society?

Neither, which is obvious.

Humanity has been trying to get the code for society's perfect operating system for about 4000 years now, since the Code of Hammurabi. What's the holdup?

Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones. The ones that recognize this truth have their hands full trying to handle the ones that don't.

 

[BPSCG]

Nanotech devices can manage that. They're called bacteria.

First time I've hjeard of bacteria referred to as "nanotech devices". Or has life been created in the laboratory and I somehow missed the announcement?

Neither, which is obvious.

So if we can't develop a perfect operating system to control the behavior of a machine that is simpler in construction than human society, why should we be so arrogant as to believe we can develop the perfect operating system to control human behavior?

Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones.

Might that be because the benefit would be negligible in relation to the cost, which would be damnable?

Go ahead. Write that perfect anti-jaywalking statute. Get back to me when you're done. Then we can get to work on that rule about what words are allowed on your t-shirt while you're on a plane.

 

[toddjh]

My answer to the question is this:

What kind of law enforcement officer would you rather run into, one who obsesses over every little infraction, or one who uses good human judgement in deciding which to pursue?

As a real-world example, I'm thinking of the Attorney General's recent obsession with porn. Now, it's possible that the prosecutors might succeed in making some obscenity charges stick. Does that mean it's a worthwhile use of law enforcement manpower?

As long as police and court manpower is limited, enforcing the letter of the law every time is not even an option. Some crimes must be overlooked regardless. I know this isn't exactly what the OP was talking about, but it's related. I think the solution for both problems is the same: sane law enforcement policies that put the emphasis on those infractions which are either dangerous to others or committed with malicious intent.

A famous quote attributed to Einstein changed my views on a lot of things when I read it the first time: "He who joyfully marches to music rank and file has already earned my contempt. He has been given a large brain by mistake, since for him the spinal cord would surely suffice." He was talking about the military, but I don't see why it shouldn't apply to police, prosecutors, and judges as well.

Jeremy

 

[Jocko]

I very much doubt that you could manage a computer's function in realtime, BPSCG.

True. But your computer cannot program itself. I'll take constant improvement over instant but limited perrfection any day.

You might as well tell me that I can't haul a trailer with my hands. Also true, but completely meaningless if I have the keys to a truck in my pocket.

 

[Jocko]

Nanotech devices can manage that. They're called bacteria.

Wow, you've determined that life=life. I'm beginning to think I'm talking to a computer here.

BTW, bacteria are far from perfect. Not only are they mortal, they are also prone to mutate in unpredictable ways that may or may not be beneficial.

Most humans don't accept the idea that rules can accurately describe a thing, and they have no interest in attempting to produce explicit rules instead of implicit ones. The ones that recognize this truth have their hands full trying to handle the ones that don't.

No, we'd just rather spend the night packing instead of memorizing 3,000 pages of problematic apparel in preparation for a flight. Let the computers compute, let the living live. Your insistence on the grand field unificatin theory of sociology is puzzling to say the least.

 

[CBL4]

There is a dilemna here:
1) Discretion should be used.*
2) If discretion is used, it will be misused.

Limiting discretion hogties the the best law enforment towards mediocrity. Limiting discretion hogties the the worst law enforment towards mediocrity.

Since I lack confidence in our judicial system, I would prefer limiting its discretion. If you have confidence in our judicial employees, you should prefer discretion.

* - In reality it would be impossible to write laws which do not require discretion.

CBL

Edited because I forgot the "im" on impossible.

 

[Melendwyr]

There is a dilemna here:
1) Discretion should be used.*
2) If discretion is used, it will be misused.

Limiting discretion hogties the the best law enforment towards mediocrity. Limiting discretion hogties the the worst law enforment towards mediocrity.

Since I lack confidence in our judicial system, I would prefer limiting its discretion. If you have confidence in our judicial employees, you should prefer discretion.

* - In reality it would be possible to write laws which do not require discretion.

CBL

I... well, damn. That is an excellent point. That is a very, very excellent point.

I'll have to think on that a while.

 

[Melendwyr]

True. But your computer cannot program itself.

Actually, they can.

Bacteria are just organic machines, Jocko. It's clear that you're going to keep shifting goalposts (what exactly is "perfection" when it comes to living things?), so I'm just gonna put you on a little list of mine.