The other day I posted a defense of Plaxico Burress which was met by some with disdain — a disdain for individuals I find disconcerting in anyone and near distressing in those proclaiming to be conservative. I give those folks, my friends and compadres the benefit of the doubt (as they no doubt do me) — fine… screw Plaxico Burress and the horse he rode in on I guess. The problem of Mr. Burress, though, is fast becoming your problem — MY problem.
Where is his criminal intent? We used to punish evil acts (mostly) criminally and let the civil law and civil society punish other acts. But you see we’re not smart or sophisticated enough to sanction others. We don’t like to judge and we’re told that we’re not experts in any case and a lot of these problems aren’t moral problems anyway they’re problems of a scientific dimension requiring expertise in sociology, biology, psychology, and the law. We need experts to help us with them. Into the gap rush experts and prosecutors to do our dirty work for us. The boot of the state is the only way that someone can be properly chastened you see.
This article better explains my problem with our current system of criminal law and the wide net it casts — often turning ordinary law-abiding citizens into felons. There used to be a real division — expressed in the law as malum in se (acts that are evil or wrong) and malum prohibitum (things that are wrong because society prohibits them, but are not morally wrong necessarily — speeding for example) of acts that were worthy of felony punishment and acts that were worthy of fines, minor jail time, etc. That is no longer the case – and the implications for our liberty are scary. You commit three felonies a day. Congratulations!
In 2001, a man named Bradford Councilman was charged in Massachusetts with violating the wiretap laws. He worked at a company that offered an online book-listing service and also acted as an Internet service provider to book dealers. As an ISP, the company routinely intercepted and copied emails as part of the process of shuttling them through the Web to recipients.
The federal wiretap laws, Mr. Silverglate writes, were “written before the dawn of the Internet, often amended, not always clear, and frequently lagging behind the whipcrack speed of technological change.” Prosecutors chose to interpret the ISP role of momentarily copying messages as they made their way through the system as akin to impermissibly listening in on communications. The case went through several rounds of litigation, with no judge making the obvious point that this is how ISPs operate. After six years, a jury found Mr. Councilman not guilty.
Other misunderstandings of the Web criminalize the exercise of First Amendment rights. A Saudi student in Idaho was charged in 2003 with offering “material support” to terrorists. He had operated Web sites for a Muslim charity that focused on normal religious training, but was prosecuted on the theory that if a user followed enough links off his site, he would find violent, anti-American comments on other sites. The Internet is a series of links, so if there’s liability for anything in an online chain, it would be hard to avoid prosecution.
Mr. Silverglate, a liberal who wrote a previous book taking the conservative position against political correctness on campuses, is a persistent, principled critic of overbroad statutes. This is a common problem in securities laws, which Congress leaves intentionally vague, encouraging regulators and prosecutors to try people even when the law is unclear. He reminds us of the long prosecution of Silicon Valley investment banker Frank Quattrone, which after five years resulted in a reversal of his criminal conviction on vague charges of obstruction of justice.
It’s not that we shouldn’t punish minor offenses and even regulatory violations, but there should be a real distinction between those acts that are misdemeanors — fine only and/or a few days in jail to get your attention — and felonies which were long reserved for evil acts involving property and life. The criminal law is fast becoming the only tool in society’s tool belt. And not all of them are labeled “Penal Code” — witness the up to a year in jail one may get under Obamacare for not buying health insurance under one of the Senate plans.
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Burress’ punishment should have been the embarrassment of shooting yourself and the harassment from his teammates and the press. Period.
Chilling.
So is this problem more at the federal or state level?
Also, is there some type of step we could take to legislatively correct this mess?
Obliterate a lot of laws on the books, hold prosecutors accountable for overzealousness/criminality by limiting their absolute immunity, give judges back some of the discretion taken away by legislatures in mandatory minimums and sentencing guideline laws.
I agree with laws like “Three Strikes”, but prosecutors often times prosecute because if a law is on the books it must be prosecuted. The use of discretion — or rather the non-use of discretion is a huge problem. In my county for example… if you’re in an accident and someone dies — they will ALWAYS prosecute you for vehicular manslaughter — even if it’s merely an accident. Now two families are destroyed and to what end? How can you deter someone from driving in direct sunlight or being distracted by kids, traffic, pedestrians, traffic, etc.? At least the prosecutor got a conviction to justify his budget and salary.
Hey, I was with you (I know you know that). Carrying in a bar should carry a hefty fine (maybe jail time on more than once), shooting in a bar, maybe a bit stronger, and if you hit someone, well you’ve gone right into either murder/manslaughter/whatever or assault which is a whole nother fish. You shoot yourself, we fine ya and change your name to Barney Fife.
Agreed.
Tracy… I know that. And I’m not meaning to say that those who think Burress deserved prison aren’t for individual liberty — just that they may not perceive the gravity (in my view anyway) of the larger issue.
I put the “crime” of lying to federal agents under the umbrella of ridiculous laws that kill our freedom.
I agree with you Floyd. The punishment Burress received did not fit the crime, to break it down to its simplest statement. Maybe it was a case of resentment against the celebrity, sports stars, actors and the famous in general where the populace generally is in agreement that ‘they can get it away with it’ based on that fame. So we’ll bring the hammer down on Burress to show them what for! Maybe it was just a case of extreme disappointment, a collective grumble at the fact that these individuals, given wealth and power can seem to do nothing but abuse it.
Either way it was wrong. With religion becoming more and more absent, resented, blamed, made the scapegoat even and morality more and more flexible, what left is there for society to do? If there is no God, no creator, then our law is all we have. When you break that law, you are now a sinner, but against the state. And the state is what defines us now. That is a part of liberalism, crimes against the state is the new sin. The state is the will of the people and to defy it, is to defy them. That is the liberal view.
Your Exhibit B shows one of the real problems. Rather than coming down hard on people with actual methamphetamines (or explosives, or any other contraband), we got idiots who are trying ban the precursors to those items. Which turns into an arms race situation where the bad guys find loopholes and exploit them, catching the innocent who just want to cut the phlegm production instead. (And it’s not just with criminal activity. Look at how Gaian dirt worshipper want to ban anything that leads to what their religion considers sinful, like chlorinated hydrocarbons.)
We’ve got a gov’t/elite class who are consumed with “process” and “procedure”, who don’t care what the final result might be as long as the forms are obeyed.
This country has a current of anti-intellectualism and anti-elitism in it, and it’ll get nasty should our gov’t masters discredit themselves, which they seem bound and determined to do in a spectacular way.
Floyd,
I think it is time you do a repost of SCREWTAPE LETTERS and how he says something along the lines of how tyranny is seconded and motioned in bureaucratic offices.
Floyd,I never thought you were such a bleeding heart.Plaxico knew the laws of the state of New York,and chose to disregard them..hence he is punished.I don’t see the problem.
I know that when Napoleon took power in France he completely redid the law books and created the Napoleonic Code.
Would a similar thing work here, Floyd?
A codification of Federal laws?
I agree with you completely, Floyd. I think the WSJ article puts it succinctly when it notes that at English common law, the foundation of our legal system (void in Louisiana, which went French) you had to prove criminal intent. I always like telling people how they’re breaking the law whenever they sing Happy Birthday (illegal public performance of a copyrighted work; there’s a reason why restaurants don’t sing that song to patrons).
Welcome (or welcome back — been too long and glad to be?), Bob! Great point about the Happy Birthday thing, too, something for which I think I can still recite the birthday ditty we did when I waited tables in college, all those years agooooooooo…
Great stuff about Polanski at your site as well!
Scott… That’s not a very strong argument. Under that logic anybody helping a Jew in WW2 Germany is a criminal or could be used to outlaw all sorts of gov’t disapproved behaviors. They knew the law and broke it. The law itself is unjust and/or the application. Stop focusing on Burress and argue the principle. Read the other link. .
Q:What do you call a 100,000 lawyers at the bottom of the ocean?..A:A good start.
Too many lawyers is one of the problems to be sure. Too much student debt and too many people who think the law is a slot machine or their way to be righteous. And lest we ever lapse into rancor — let’s not forget the Cowboys game last night.
I shudder to think what you would have said if you hadn’t given us the benefit of the doubt!
I actually had that WSJ article bookmarked to post about before real life* intruded upon my plans a few days ago. I agree with you, and since—in this post—you haven’t implied that it is a greater injustice for rich people to be unfairly imprisoned than it is for poor people, I’ll leave it at that.
———————–
*A nasty, disturbing, uncomfortable thing. Makes you late for dinner!
Mike… I find it distressing not because I think those folks don’t really care for individuals (and as such I apologize for the gross and unfair overstatement because I know y’all do — sincerely not my intention) but they often support prosecution and sentencing policies that in fact do just that — destroy individuals in favor of “public safety” or lower crime rates, etc.
My main gripe with the Burress situation (presuming his guilt and his idiocy) I would like to know why — morally — he deserves 2 years of prison and 2 years of probation when he has no priors I’m aware of, shot himself and will lose 4 years of his limited career range (given that his chosen profession does not allow for traditional career trajectories that consequence is greater than most jobs) over say just probation and a huge fine and a limit on his gun rights. Do we need a pound of flesh too? Just because “it’s the law” doesn’t make it right — or wrong — for that matter.
I am pro-prosecution pro-cop, etc. I have worked for and with law enforcement for 15 years. The answer to the Great Society’s permissiveness via unalloyed acceptance of 1950/60s sociology and psychology is not a complete hard core “let’s arrest everybody” approach. Many conservatives (myself included) have focused so much on “locking people up” that we are in very real danger of creating a society where we are afraid of our government because they can now lock up the majority of people whenever some prosecutor feels like it based on our labyrinthine laws.
So while I understand completely the inclination I’m distressed that some conservatives are tempted to say “F*&k Plaxico” when he’s merely an example of a deeper problem… Scooter Libby, Martha Stewart, (see the link I posted) When the rich are in danger — how much more are the rest of us? Part of the law is of course deterrence and making examples, but when the end becomes example of government power and the means are individuals — we’ve gone too far.
And we haven’t reached tipping point necessarily, but the examples of abuse are growing.
I agree with most of this, but if the people of New York like their gun laws, what do you suggest be done? I don’t like prison sentences for drug addicts, but if I were a prosecutor, would I have the right to refuse to prosecute cases where a guilty verdict would result in prison time? Wouldn’t I have a duty to either enforce the laws that the people have enacted, or if my conscience demands it, resign and allow someone else to do it?
Prosecutorial discretion can always be abused, and not always in the overzealous direction. I don’t think this issue is as black and white as you’ve argued.
I don’t think it’s necessarily black and white. Most prosecutors use discretion properly. One of the main problems is overly broad statutes. Prosecutors have very broad discretion — no one — generally can force a prosecutor (the elected DA rather) to bring a charge or seek a punishment except the voters.
New Yorkers may like their gun laws — that is their prerogative of course. I just wish they wouldn’t and I would argue that they should keep the law, but change the sentencing policy. I exercise my vote by not living there or wanting to — sort of like Rush (his protest move out of NYC in response to a tax hike). That’s minor of course, but it’s all I’ve got.
I wouldn’t assume most people would understand (legislators included) understand the possible consequences — like the Grandma busted for buying cold medicine twice in 7 days (in my last link). They don’t see themselves as criminals and so don’t always follow those statutes. The lack of knowledge of what a statute will do when used is another argument for a legislature to hold back perhaps — get involved in a few areas, and draw narrowly tailored laws. Better to err on a few going free than to wrongly imprison or criminalize otherwise good people. Prosecutorial and judicial discretion are republican checks on democracy. When the ability to use them is lost either due to sentencing guidelines, lack of ethical and moral training in law schools or whatever we become less free.
If one of my children or Mrs. Firefly are ill or injured and need immediate attention I will break every moving violation in my county, state and country to get them to an emergency room. Should citizens do that? No. Should I be slapped on the wrist and reminded not to do that after the dust settles? Yes. Should a judge take into account I was driving a severely injured loved one to the hospital, as opposed to drag racing with my teen-aged buddies? Yes.
This is why we have judges, to take this stuff into account. Otherwise we just need a computer that has all the statutes in a database. About a decade ago there was a case where a child molester had abused a woman’s son. She was a stable, contributing member of society with no criminal record. She snuck a gun into the courtroom and when the bastard was found guilty she shot him. I believe she did not serve any jail time for her crime.
No, we don’t want citizens bringing weapons into court rooms and imposing their own sentencing, but I believe it was fair to not imprison this woman for her “crime.” The man was guilty. He had destroyed her son’s life. She behaved rationally. She is no threat to society and the judge sentenced her accordingly.
I have no problem with anything either Rufus or Floyd said above. As I said in the eariler post, I think any apparent disagreement between us is a misunderstanding on somebody’s part.