Enforcing the law...

[Atlas]

We don't have to put any of the laws in effect until we're satisfied that what we have accurately describes the "spirit of the law".

Some 40 years ago our 6th grade class went on a field trip to the state capital. I remember sitting on the steps of the legislature listening to a tour guide tell us about how laws are made. At the end of her spiel she told us of some dumb laws that other states enacted. The one I remember was something that Wisconsin or Iowa had passed for railroad safety.

If two trains meet on the track - neither train shall move until the other is completely off the track.

Even a sixth grader can recognize some bad laws. Lawmakers are not always as diligent in the real world as they are in the perfect world you describe.

 

[Melendwyr]

Perhaps it's best that I not explain what I think should be done with most politicians...

 

[epepke]

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?

The question is whether he is "right" from 1) a law enforcement perspective or 2) from a societal perspective.

You seem to be answering question 1.

To that extent, I have to agree.

The ideal situation for a law enforcement officer is one that best supports the belief that everyone is guilty. Ultimately, this is to make everything illegal, punishable by any punishment, including public flogging and the death penalty. This leaves the decision to prosecute entirely up to the discretion of the law enforcement office and the District Attorney.

There's a Constitution with annoying checks and balances that puts actual determination of guilt and sentencing in the hands of the judiciary, widely viewed as existing only for the purpose of getting the "perp" off on a "technicality." However, by making the maximum penalty as severe as possible, it increases the probability of a severe average sentence. Mandatory sentencing laws are also helpful. The best modern example of an approximation of the ideal would probably be Singapore.

It does not surprise me at all that a hardcore law enforcement officer should advocate this as strongly as possible.

From a societal, "civilian" or "little people" perspective, there are only two defenses to an accusation: being not guilty of the crime, or a jury judgement that the law is wrong or misapplied.

The latter has been minimized. Only a few states require jury notification. Prosecutors have effectively unlimited power to dismiss potential jurors if they are aware of the right to judge the law.

This only leaves the former, of being not guilty. This can be avoided by having more and more laws, which seems to be happening.

 

[CapelDodger]

First time I've heard of bacteria referred to as "nanotech devices".

It's a nice point, though, isn't it? They haven't been "developed", they've just happened, but they're way ahead of anything we've designed intelligently on the nano-scale.

 

[CapelDodger]

As to the kids in the good neighbourhood vs. the bad- Kids in a good neighbourhood are unlikely to have had previous dealings with the police and are unlikely to have a history of offending. OTH, kids from a bad heighbourhood are more likely to have record of offending which may warrant harsher sentences.

Here we have the problem of discretion. Numerous studies in the UK have shown that, when matched for their actual criminal record, boys from "good" neighbourhoods are more likely to be cautioned than boys from "bad" neighbourhoods, rather than be charged and enter the legal system. That's a self-reinforcing process.

I'm a great believer in discretion, and hate prescriptive systems, such as religions or ideologies. Policemen should have the option of the "Clip around the ear", which says I'm watching you, sonny. But that requires cohesive societies, which are sorely lacking these days.

 

[AmateurScientist]

So, yes it depends and we must wish to have judges that are able to judge by the spirit and by the letter of the law.

Think it the other way. Two parts expect from the same person to act differently. The victim asks for the law enforcement by the letter and the victimizer appeals to the spirit of law. A good judge is able to do both by avoiding pseudo-dilemmas that are presented by both parts.

Interesting discussion but when people are involved there are not definite answers.

Hi Cleo. Long time no speak. It's good to see you in this thread. I regret that we have not engaged in any good discussions in a long time.

I like your point about the relative importance of the spirit vs. the letter of the law depending upon which end of the barrel of the metaphorical gun one happens to be. I agree wholeheartedly.

Also, I think your comments raise an excellent point about judges being able to avoid pseudo-dilemmas presented by the adversaries in a legal controversy. Justice does often require the arbiter of a conflict to carve a path which follows both the spirit and the letter of the law, while avoiding leaning too far one way or the other. It seems to me that in most cases, whether they are civil or criminal, when a judge resolves the controversy, or even when the parties themselves reach a negotiated settlement, Solomon's ghost appears and actually splits the baby in two. It is relatively uncommon for one party to be completely vindicated or to get precisely what he or she is seeking from the courts. Instead, usually both sides walk away with something less than what they were seeking, and all the actors involved experience a sense of anti-climax or denouement. Quite often, the prevailing feeling is one of relief from the tension of the conflict, rather than one of victory or defeat.

When experiencing that prevailing feeling, I understand what one of my math professors told me at university. "Law is too nebulous for a mathematician." I think you will understand. Personally, I prefer the more binary win or loss, but I recognize that in many instances it is better for the litigants to reap the benefits of the mini-max principle from game theory. It is thus that they resolve their conflict by compromise--they avoid a possible big loss, but they also sacrifice a possible big gain.

AS

 

[epepke]

Here we have the problem of discretion. Numerous studies in the UK have shown that, when matched for their actual criminal record, boys from "good" neighbourhoods are more likely to be cautioned than boys from "bad" neighbourhoods, rather than be charged and enter the legal system. That's a self-reinforcing process.

I bet that skin color is involved, too.

I'm a great believer in discretion, and hate prescriptive systems, such as religions or ideologies. Policemen should have the option of the "Clip around the ear", which says I'm watching you, sonny. But that requires cohesive societies, which are sorely lacking these days.

Specifically, this requires the presumption that the police are the ones in the best position to do this. Frankly, in the US, I'd rather see discretion applied by judges. I'm not sure about the UK, but I do remember Jean Charles de Menezes, and I don't think that the police have quite the stalwart reputation that they had in the early 60s.

 

[Roadtoad]

I'll add my kudos to a great topic, Freakshow.

Let me offer another perspective: In the Commercial Drivers Handbook, it says the national speed limit is 55 for all trucks, but, that it's subject to road conditions at the time you're on the road. In other words, if it's raining, 55 is going to be too damned fast for a lot of roads.

Today, I made runs up to Cisco Grove, about 25 miles west of Truckee, CA. From Kingvale to Truckee, chains were required because we had our first snowfall. (And the first one to stick, too.) Much of this trip I made running at 45, even though unladen, my rig would do 55 easily. It wasn't safe to go much faster. I was late for the loadout, but I got there.

If I had been moving faster, considering the number of CHP officers in the area today, there's a damned good chance that I would have been ticketed. I was well within the legal limit, but conditions were against me.

The whole issue comes down to individual judgement, whether we like it or not.

 

[epepke]

Let me offer another perspective: In the Commercial Drivers Handbook, it says the national speed limit is 55 for all trucks, but, that it's subject to road conditions at the time you're on the road. In other words, if it's raining, 55 is going to be too damned fast for a lot of roads.

I don't think that I've ever seen a semi going 55 in the past ten years. They go 70 or sometimes 80.

 

[Boo]

Freak,

Great topic!

I don't have the educational background or training that many here have, when it comes to discussing this topic. All I can add is observational experience after 20 years of working on ambulances. I have spent a great deal of time on scene with law enforcement officers; from the occaisional federal type to state police, county sheriff deputies, urban street and small town cops.

My experiences have shown that the system we have in place allows for the range presented as either or choices. In using discretion some will be 'letter of the law' enforcers and others won't put down the donut unless they absolutely have too. Many fall into the mid-range, using their professional judgement as the situation demands.

It is that professional judgement that we must rely on. Just as we rely on the professional judgement of physicians. Yes, some abuses will occur and hopefully those individuals are weeded out. Mistakes will be made. Law enforcement, like medicine, is field where the book only serves as a guide. There is no text to cover every possible scenario. The best we can hope for is that those we rely on to enforce the law are well trained and mentored.

The other option being "Arrest them all and let the Judge sort them out" which would serve, in my opinion, to only overburden an already overburdened judicial system.


Boo

 

[Melendwyr]

The best we can hope for is that those we rely on to enforce the law are well trained and mentored.

Well trained in what? Mentored how? Despite the generally unscientific nature of much of modern medicine, there are still standards by which physicians' actions can be evaluated and judged. That's the whole point of malpractice. If we say that the correct response in any medical situation is completely up to the judgement of the presiding physicians, then we lose the ability to distinguish between proper and improper treatment.

Precisely the same argument holds in law enforcement. Whether you want to admit it or not, people do apply standards to evaluate the actions of law enforcement officers. Those standards can either be private, usually unspoken, and unevenly applied, or they can be explicit, public, and universal.

 

[CBL4]

Judges, police and disctrict attorneys need to apply discretion. There are two major problems with this:
1) Many (not most) are incompentent to provide discretion.
2) They are much more likely to be rewarded by voters for being too harsh rather than too lenient.

There is no public employee in the justice system who gets rewarded when a man (innocent or not) gets found not guilty or given a light sentence. The gives the police, DAs and judges the incentive to use their discretion harshly.

CBL

 

[CapelDodger]

I bet that skin color is involved, too.

That'll often be the case, sadly. Another common short-cut is which school (if any) you attend.

Specifically, this requires the presumption that the police are the ones in the best position to do this. Frankly, in the US, I'd rather see discretion applied by judges. I'm not sure about the UK, but I do remember Jean Charles de Menezes, and I don't think that the police have quite the stalwart reputation that they had in the early 60s.

(That last point is a bit of a myth, the Filth were always, well, the Filth. ) I'm thinking about very minor misdemeanours, anti-social behaviour and such. If the police know their neighbourhood and its people they can make some judgements about who's born to trouble and who isn't. Unfortunately, policing isn't often like that these days. I think discretion at all levels is necessary. There's a danger in it, but there's a danger in life. What I really fear is a tick-box system; tick the boxes then read off the required action. Computerised law. It's going to be proposed some time, if it hasn't been already.

 

[CapelDodger]

The best we can hope for is that those we rely on to enforce the law are well trained and mentored.

They also have to be monitored, and people with your professional experience can have an input to that. If you have concerns about an officer or a precinct or whatever, you should be able to feed it into the system.

 

[Melendwyr]

I recently thought of a better way to express my position. Tell me what you think.

If you were going to enter into a binding contract, would you accept a contract that was vague, imprecise, and open for the other party to change its content at will? Probably not. When drafting contracts, people usually go to great expense to have lawyers check and recheck their language, removing uncertainties and eliminating loopholes.

Why is a social contract any different? Laws define our rights and obligations as citizens of a society, as well as society's rights and obligations towards us. What possible benefit could there be from not making that contract as clear and specific as possible?

 

[AmateurScientist]

I recently thought of a better way to express my position. Tell me what you think.

If you were going to enter into a binding contract, would you accept a contract that was vague, imprecise, and open for the other party to change its content at will? Probably not. When drafting contracts, people usually go to great expense to have lawyers check and recheck their language, removing uncertainties and eliminating loopholes.

Why is a social contract any different? Laws define our rights and obligations as citizens of a society, as well as society's rights and obligations towards us. What possible benefit could there be from not making that contract as clear and specific as possible?

That's a very good point about clarity in written contracts. Even the best drafted contracts result in legal disputes, however. Contracts aren't always strictly construed, either. There are lots of rules governing how disputes over their intended meaning are resolved. For instance, there is a doctrine in contract law called "substantial compliance," which essentially means that sometimes the spirit of the agreement is honored and a failure to strictly perform by one party is excused. The remaining terms of the contract are upheld and enforced, nonetheless.

The same is true for the social contract, and the explicit written codes our legislatures put down for us. It is impossible to anticipate every situation that can arise between and among individual actors, and it is folly to try. We simply have to keep room in our relations for situations that don't fit well into our little pigeon holes, and also for those in which they do, but placing them there would not serve anyone's best interests.

All of that is to say that judgment and discretion are vital to the smooth, orderly functioning of a just society.

AS

 

[Melendwyr]

For instance, there is a doctrine in contract law called "substantial compliance," which essentially means that sometimes the spirit of the agreement is honored and a failure to strictly perform by one party is excused.

Who decides what the "spirit of the law" is, and when one party can be excused from their contractual obligations?

 

[AmateurScientist]

Who decides what the "spirit of the law" is, and when one party can be excused from their contractual obligations?

Well, that's not quite what I said. I said the spirit of the agreement (contract). Among other things, the formation of a contract requires a "meeting of the minds." This means that both parties understand and intend to enter into the agreement and to be bound by the same material terms at its formation. Another thing required for the contract to be enforceable is consideration -- something each party agrees to perform (or gives up to the other) in order to be bound by the contract. The contractual obligations created by the agreement can be simple, or they can be many and complicated.

When I mentioned substantial compliance, I meant that if one of the parties substantially performs its part of the bargain, but has strictly speaking not performed exactly as described in the written agreement, under the right circumstances a court may still require performance by the other party to the agreement.

Thus, strict performance (or compliance) may be excused sometimes when substantial performance has been accomplished. This is not the same as declaring that one party or the other is excused from performing at all. It means that it has essentially done what it promised to do, and what the other party expected it to do at the time of the contract's formation.

Anyway, it was meant as an example. Contract law has many equitable principles upon which it draws. It's not always a matter of looking strictly to the four corners of the document itself. That's my point.

AS

ETA: Oh, and who decides? If the parties cannot decide, then a court decides for them if one or both of them sue, or an arbitrator or panel of arbitrators if they have agreed in the contract (very common these days in business agreements) to waive their right to a trial by jury and resolve their contractual disputes by arbitration.

 

[Cleopatra]

Cleopatra, you reminded me of something else from my days studying law enforcement, when I was going my internship. One of the cases that came through...I don't remember the details of. But the basics of it was this: Some young man had done something wrong earlier in life, and was given just a legal slap-on-the-wrist. Later, he did something much more wrong, and was now on trial for it. He was sentanced to 10 years. This judge would like to give the defendant a chance to say something before he announced the sentance. Sort of like a "last chance" to address the public and be heard before going away to jail. He would always say "Stand up Mr/Mrs [name]...Do you have anything to say to this court, before I announce your sentance?" He also in this case asked the prosecutor if he had anything to say. The prosecutor said something interesting...

"Yes, your honor. I'd like to say that I think the system failed this young man. I believe that if years ago, he could have had reasonable punishment for what he did before, he may have learned his lesson. And he might not have been in front of us again, for a much more serious crime."

Your post made me think of that.

Although what you mention, is an aspect of the issue this is not what I meant. I didn't make that clear what I meant on purpose, because I wasn't sure I wanted to get into that discussion but since you mentioned it...

Apart from the spirit versus the letter of the law, there is another "duality" in the concept of law enforcement. The penalty must punish the offender and in the same time to satisfy ( moraly speaking) the victim. This is an aspect of the law enforcement that we avoid to discuss although we know very well that it's there!

So, when I said that some times judges exhaust their severity on people they can foresee their career as criminals, I meant that they do it primary because they believe that in such cases, a second chance equates to a lost chance and second they see it a good opportunity to fully satisfy the victim and the general public, however corrupted it might be demands and cries for the moral satisfaction of the victim!

You see, it's difficult to make the victims understand that even the criminals have rights because a victim even of a minor offense tends to feel that the ultimum injustice has been performed against him/her and she/he demands the head of the offender on a plate regarless the severity of the offense that is trialed.

If you ask me what has impressed me most during the years I practice law, I would answer that human cruelty and hypocricy towards those who break the law never seize to put me in awe and the cruelty and the hypocricy of the juries has many times driven me over the borders of misanthropy.

 

[Cleopatra]

Hi Cleo. Long time no speak. It's good to see you in this thread. I regret that we have not engaged in any good discussions in a long time.

Yes indeed Amateur Scientist. I wish we could meet in the court room once,although I am quite a performer in the court room( because this is what court rooms deserve) I am sure I would have much to learn.

Also, I think your comments raise an excellent point about judges being able to avoid pseudo-dilemmas presented by the adversaries in a legal controversy. Justice does often require the arbiter of a conflict to carve a path which follows both the spirit and the letter of the law, while avoiding leaning too far one way or the other. It seems to me that in most cases, whether they are civil or criminal, when a judge resolves the controversy, or even when the parties themselves reach a negotiated settlement, Solomon's ghost appears and actually splits the baby in two. It is relatively uncommon for one party to be completely vindicated or to get precisely what he or she is seeking from the courts. Instead, usually both sides walk away with something less than what they were seeking, and all the actors involved experience a sense of anti-climax or denouement. Quite often, the prevailing feeling is one of relief from the tension of the conflict, rather than one of victory or defeat.

Indeed. This adds to the comment I made above. Although judges never admit it and although they try to keep the balance, they do have in mind that if the facts prove the accused guilty they must not just punish him by applying any penalty;the feeling of the general public regarding justice ( as the Greek Criminal Code describes it!) must be satisfied.

You put it beautifully. The court room is the scene of a theatre, the more serious the crime that is trialed is, the more theatrical the whole atmosphere becomes. In reality, people know that they judge something that is above them.

Also, since we speak in theatrical terms, let us not forget that in the plays where "pride" and "justice" win in triumph, the scene is covered by dead bodies in a very shakespearean and ancient greek fashion.

When experiencing that prevailing feeling, I understand what one of my math professors told me at university. "Law is too nebulous for a mathematician." I think you will understand. Personally, I prefer the more binary win or loss, but I recognize that in many instances it is better for the litigants to reap the benefits of the mini-max principle from game theory. It is thus that they resolve their conflict by compromise--they avoid a possible big loss, but they also sacrifice a possible big gain.

AS

Ha! Last week, in one of the introductory lesson of Geometry, the professor recognized who I am and what I do in " real" life and with my permission he used my presence to refer to the excellence of the Mathematics versus the nebulus Law( these were his exact words).

The good thing about being a pacifict that has been born in Middle East is that when others( tarot readers included) perceive number "Two" as a "conflicting duality", you look to spot the points that those two "ones" meet.

Those who see Law as nebulus overlook its origin and use. Maths help us understand and interpret the world and even more, to approach with our brains a world that seems to exist but we cannot perceive with our senses.

Law is not interested in describing or explaining the world. Law constitutes the final answer to questions that arise in the relationships between human beings, between human beings and other creatures and between human beings and the environment. We are allowed to discuss whether murder is an acceptable practice for example but we know very well that at least for this very moment, there is a definite answer to this question if we try to commit one.

When Mathematicians arrive to the point to invent a mathematical equation that gives a definite and final answer to questions like : Who was right? Creon or Antigone? The goat that eats the neighbour's plants that fall over the fence or the neighbour who doesn't take good care of his plans and let them fall over the fence, then I will be ready to discuss about the nebullus nature of Law.

Maths might have come with an answer regarding the number of quasars but the question of the goat and the plant over the fence is still pending.And which are the odds in everyday life? To...interact with.... a quasar or to have a neighbour with a hungry goat?