Sunday, 24 June 2018

No, we don’t have to enforce all the laws – we can’t

One of the ways people justify evil things while still believing that they themselves are good people is to hide behind the rules.  “Yes, it’s terrible that families are being separated, but those parents *broke the law.*”

There are a thousand good counterarguments to that including that in many cases, no, they didn’t.  Seeking asylum is a protected legal right, even if a person came here illegally.  Not only that, but it’s illegal to punish an asylum seeker for coming in illegally if they can show good cause why they didn’t come the legal way.  Since the US has been sending asylum seekers away from official points of entry, and since the asylum application process at a US embassy can take years, it’s not surprising that people fleeing for their lives cross the border illegally.

But apart from that, there’s a stunning hypocrisy when “law and order” people wholeheartedly support a president who’s claimed the ability to pardon himself, and who has pardoned a sheriff for flagrantly abusing the law.  The law, it seems, only matters when you already don’t like the people who are breaking it.

In reality, most people break the law on a regular basis and suffer no consequences whatsoever.  Even if we set aside traffic infractions like speeding and jaywalking, crossing the border without permission is a misdemeanor.  Other misdemeanors include disorderly conduct, vandalism, underage drinking, and public intoxication.  If you drank before you reached legal age, or you’ve ever gotten into a loud argument in a public place or stumbled out of a bar to a waiting Uber or a sober friend’s car, then you are just as much of a criminal as someone who crosses the US border without permission.

The truth is, our system would grind to a screeching halt tomorrow if we decided that every single law on the books had to be enforced to its fullest extent.  For starters, do you really want to prosecute stranded hurricane victims for shoplifting food?  If my house is on fire and I run onto my neighbor’s property, should I be taken in for trespassing?

No matter how carefully rules are written, there are always going to be points when exceptions are needed.  Yes, we should work as many of the needed exceptions as possible into the rules themselves, to avoid favoring only people judges and juries find sympathetic (mostly white guys).  But that effort will never be perfect.

Not only that, but a certain amount of discretion is built into the system at every step. Imagine that every single person who’s pulled over for a traffic offense must be given a ticket.  No more letting people off with a warning, no matter how clean their record is or what other mitigating factors exist.  We’ll probably need to hire more cops just to keep up with the paperwork, and more judges for traffic court.

Now extend that further.  If all laws must be enforced, no exceptions, then plea bargains are no longer a thing.  The state now has to spend money prosecuting cases it can’t necessarily win, because there’s no motivation for anyone to plead guilty to a lesser offense.  If “all laws have to be enforced,” then they have to be charged with every single offense that the evidence supports, regardless of what they’ll plead guilty to.

This also destroys any concept of getting immunity in exchange for testimony.  If you’ve got to prosecute the small-time drug dealer regardless, he’s not going to give evidence against his boss or his boss’s boss.

So, no, we don’t need to enforce all the laws all the time.  We couldn’t possibly, and we’d break the system if we tried.



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