
As Criminal Laws Proliferate, More Are Ensnared - grellas
http://online.wsj.com/article/SB10001424052748703749504576172714184601654.html?mod=WSJ_hp_LEFTTopStories
======
ctdonath
"Did you really think that we want those laws to be observed?" said Dr.
Ferris. "We want them broken. You'd better get it straight that it's not a
bunch of boy scouts you're up against - then you'll know that this is not the
age for beautiful gestures. We're after power and we mean it. You fellows were
pikers, but we know the real trick, and you'd better get wise to it. There's
no way to rule innocent men. The only power any government has is the power to
crack down on criminals. Well, when there aren't enough criminals, one makes
them. One declares so many things to be a crime that it becomes impossible for
men to live without breaking laws. Who wants a nation of law-abiding citizens?
What's there in that for anyone? But just pass the kind of laws that can
neither be observed nor enforced nor objectively interpreted - and you create
a nation of law-breakers - and then you cash in on guilt. Now, that's the
system, Mr. Rearden, that's the game, and once you understand it, you'll be
much easier to deal with."

\- Ayn Rand

~~~
mkn
I don't find that to be the most plausible mechanism for the proliferation of
laws at all. More likely, it's an emergent property of the legal system in a
democratic context that can probably be explained in terms of game theory. At
any legislative junction, there's a cost or benefit associated with enacting
or not enacting a law. Take the arrowhead removal example from the article.
You're a lawmaker and you're faced with the problem of people pilfering Native
American artifacts, and this law is presented to you. Which side are you going
to be on? The side of desecration? Or the side of preservation? Boom. Another
law. At each juncture, there's a good reason to pass another law.

What emerges from this is a jumble of laws. Each local decision is made in
response to an immediate concern, and cannot take the jumble-of-laws problem
into account. You're only adding one law, after all, and it's benefit is
clear.

"Well, what about repealing some?," you may ask. Well, what's the "game" when
it comes to repealing them? Even if each law got on the books for--heh--
objectively bad reasons, those reasons were still "good" in that they
contained a political benefit. Often, repealing them would have the
unacceptable adverse consequence of giving up that benifit. You wanna be the
guy to repeal the broken sex offender registry laws and be perceived as on the
side of rapists and pedophiles? How bout the U.S.A P.A.T.R.I.O.T. Act and be
perceived as being "on the side of the terrorists"? What now, hotshot?!

None of the above requires a conspiracy, as your post intimates. Those effects
emerge as unintended consequences from the dynamics of a system. The even more
infuriating thing about that quote in this context is that it ignores the
corrective power of a democracy in crisis. There eventually does come a point
where people wise up and rise up on specific issues. Prohibition, slavery, and
civil rights come to mind. Revolutions, as they say, are impossible until they
happen, and then they were inevitable.

Finally, the mechanism of control in your Rand quote is just ludicrous. How
would one "cash in on guilt" in a system that is as patently absurd as the one
you cite? Nobody would feel guilt about breaking those laws. The arrowhead
collectors didn't "feel guilt." Quite the opposite, it seems. They paid the
bill and openly talk about how absurd it is. The only way one could use a
system like the one you outline would be to _actually lock everyone up_. It's
just not practical, and it's not even the kind of control your example seems
to advocate. Ostensibly, the controllers in your _fictional_ example want
people to behave a certain way out of fear of being locked up, not to actually
have to lock them up for misbehaving.

Try to critically scratch the surface of word-butchered fanboy fictional
allegories that comprise Ayn Rand's work before posting them here verbatim as
if they actually have any bearing on the real world. The real issue here, and
one from which your post serves as a distraction, is the evisceration of the
_mens rea_ requirement for a finding of guilt.

~~~
Eliezer
I think it's a perfectly apposite quote. No, the proliferation of laws is not
there as the result of an evil conspiracy to make everyone guilty of
something. But sometimes you can clearly illustrate harmful side effects in
fiction by postulating evil conspiracies that do things for the sake of the
harmful side effects.

Nobody knows the law anymore. Everyone is guilty of something. If the police
want to arrest you, they can find some charge or another. Who has power in a
world like that? Why, the person who decides whether or not to prosecute _you_
for a law that thousands or millions of other people are breaking.

~~~
coolgeek
_Nobody knows the law anymore. Everyone is guilty of something._

This argument is reductio ad absurdum. The corpus of law bearing significant
consequences for violators [1][2] is sufficiently small as to be almost
intuitively understood by any reasonably educated person.

As a general rule, you're not going to be confronted by the full weight and
force of the state for violating the jaywalking statute. Were you to be
targeted for arrest for such a minor violation, it would be transparent to
knowledgeable observers that you were specifically targeted and surveilled
until a reason was found to arrest you.

[1] By significant, I mean incarceration and/or crippling financial penalties.
And note that the cost of defending oneself is categorically not a penalty.
[2] This, of course, only applies to societies ruled by law, as opposed to
those ruled by individual persons or groups

~~~
SageRaven
I'm too tired to find the reference, but some woman recently got sentenced to
serve 90 days (thereabouts) incarceration for planting a garden in her front
lawn in contradiction to local ordinances. Of course this is a prime example
of civil disobedience, as she intentionally flaunted this absurd law,
challenged it as best she could in court, then paid the price of losing.

The point is, you can be tossed into the clink for just about _anything_ if
you are brazen enough to openly challenge the law and don't prevail. Judges
don't care much for the proles challenging the state.

~~~
joegester
She wasn't sentenced. The charges were dropped either because the city didn't
want the negative publicity or because the case would not have held up.

[http://moneyland.time.com/2011/07/15/charges-dropped-
against...](http://moneyland.time.com/2011/07/15/charges-dropped-against-
woman-for-front-yard-vegetable-garden/)

------
padobson
'Current law provides a range of options to protect society, he says. "It
would be horrible if they started repealing laws and taking those options
away."'

That's the most disturbing line in the piece to me. Laws used to frustrate,
oppress, or even enslave a citizenry are always written under the guise of
offering 'options for protection'. Why do we need to wiretap private citizens?
To keep private citizens safe of course.

Then, there's laws written to keep large companies like Exxon or WalMart from
polluting the environment or mistreating their workers, but prosecutors can't
get convictions against their herculean legal teams, so they end up convicting
small businesses and private citizens because they're easier targets.

The problem with these laws is not that they criminalize non-criminals, its
that the actual criminals aren't impeded by them at all.

~~~
dpatru
> 'Current law provides a range of options to protect society, he says. "It
> would be horrible if they started repealing laws and taking those options
> away."'

This quote also disturbed me, but for a slightly different reason: The
prosecutor who is speaking is implying that the large number of laws give him
a lot of options, i.e., he is (almost) free to persecute on whim. If there
were fewer laws, he would be more constrained, have fewer options.

The whole point of written law is to prevent government from prosecuting on
whim. A written law forces government to use objective standards. Yet when
there are so many laws that everyone is guilty, the effect is the same as when
there are no laws: prosecutions are conducted on whim (aka police and
prosecutorial "discretion".)

~~~
daemin
This old saying comes to mind:

    
    
      If you give me six lines written by the most honest man, 
      I will find something in them to hang him.
      -- Cardinal de Richelieu

------
v21
And once you're in jail...

> With just 5 percent of the world’s population, the US currently holds 25
> percent of the world's prisoners. In 2008, over 2.3 million Americans were
> in prison or jail, with one of every 48 working-age men behind bars

> Prior to the 1970s, private corporations were prohibited from using prison
> labor as a result of the chain gang and convict leasing scandals. But in
> 1979, Congress began a process of deregulation to restore private sector
> involvement in prison industries to its former status, provided certain
> conditions of the labor market were met. Over the last 30 years, at least 37
> states have enacted laws permitting the use of convict labor by private
> enterprise, with an average pay of $0.93 to $4.73 per day.

> Subsequently, the nation's prison industry – prison labor programs producing
> goods or services sold to other government agencies or to the private sector
> -- now employs more people than any Fortune 500 company (besides General
> Motors), and generates about $2.4 billion in revenue annually.

[http://www.alternet.org/world/151732/21st-
century_slaves%3A_...](http://www.alternet.org/world/151732/21st-
century_slaves%3A_how_corporations_exploit_prison_labor/)

------
RexRollman
People complain about activist judges but I think a bigger problem is activist
prosecuters who look to stretch the law to include targets that were not
intended by the law. The biggest example of this that I can think of is the
anti-hacking laws that are being made to charge people of simply using a web
browser.

~~~
starwed
I found the article weird in that respect. None of these laws seem
particularly odious -- the ones that seem unjust could have been avoided by
prosecuters using their discretion.

Also, I'm amused by an article about injustices in the criminal system where
everyone pictured is a well-off white man.

~~~
kstenerud
> Also, I'm amused by an article about injustices in the criminal system where
> everyone pictured is a well-off white man.

That is by design, since the stereotype for "middle class" is the well-off
white man, and this article is attempting to motivate the middle class.
Revolutions only happen when a critical mass of the middle class switches
sides.

~~~
dpatru
You're implying that the Wall Street Journal, the businessman's newspaper, is
trying to foment revolution. Things must be bad indeed.

------
dp1234
Exactly the reasoning behind never speaking to police as detailed in these 2
videos a while back:

<http://boingboing.net/2008/07/28/law-prof-and-cop-agr.html>

The risk of self-incrimination is incredibly high since no person can even be
aware of all of the laws that exist and may be violated.

~~~
dustingetz
great vids. the often overlooked flip-side is that cops Don't Like
uncooperative people, so you could save yourself a pricey court appearance by
cooperating when innocent.

~~~
dredmorbius
You can assert your rights simply and clearly.

It takes a certain amount of cahones, but you'll generally find that the cops
will respect it.

A pricey court appearance beats a conviction in my book.

[http://www.thisamericanlife.org/radio-
archives/episode/430/v...](http://www.thisamericanlife.org/radio-
archives/episode/430/very-tough-love)

~~~
dustingetz
True story: traffic cop pulls me over, turns out im doing something wrong and
he could have me towed. cop asks to search my car for drugs and weapons. "Do I
have the right to refuse this search?" Cop responds that I do, but heavily
implies that he will have me towed if I refuse. I consented, he found no drugs
or guns, I was allowed to drive away.

~~~
dredmorbius
True story: I was driving home after a long day out with friends (hiking with
some, dinner with another). Started feeling very sleepy, pulled off the
freeway to take a nap. Woke with a flashlight in my face and highway patrol
knocking on my window.

Exited the car, locking it. Identified myself and presented ID. Refused
consent to search the vehicle: "I don't consent to any search". Officer
implied strongly that he could get a warrant (it's around midnight). "You do
what you've got to do, I don't consent to a search".

Got breathalyzed (I could have refused this but that would have required a
trip for a blood draw), which was clean (hadn't consumed any alcohol for
hours). Eventually allowed to go on my way.

Later realized I had a couple of prescription painkiller pills given by a
friend (for severe pain I was experiencing at the time) which probably
wouldn't have been a good thing to turn up in a search. The This American Life
drug court segment relates a story that could have been very similar to mine.

You have rights. But only if you assert them.

~~~
sliverstorm
And it is up to each individual to elect when to assert them. That's another
one of our rights.

~~~
dredmorbius
Given the premise of the original article, electing not to assert your rights
isn't particularly safe.

Note that when I did assert my rights, I really didn't have any reason for
doing so other than that they are my rights. It was literally a couple of
years later that I made the association between the stop and the possibility
that I may have been carrying what were technically illegal drugs.

------
thinkcomp
Thanks to the State of California, virtually every private university
president and trustee is now a criminal, too.

[http://www.quora.com/Aaron-Greenspan/The-California-Law-
That...](http://www.quora.com/Aaron-Greenspan/The-California-Law-That-Should-
Send-The-President-and-Fellows-of-Harvard-College-and-Every-Private-
University-To)

~~~
Alex3917
Meh, every single person in the US is already a felon. We all possess schedule
I drugs in our bodies[1], and there is plenty of legal precedent saying that
you can be convicted of narcotics possession for drugs that are in your body.

[1] DMT, 5-MeO-DMT, Anandamide, etc.

~~~
Cushman
That's a great critique of the CSA, but it's not really legally relevant. No
court would convict for possession of endogenous DMT, and then that would be
the precedent.

Or to put it more simply, you're innocent until proven guilty. Felon means
conviction.

~~~
bediger
You're quibbling. I mean, I understand that _legally_ , one has to obtain a
conviction to refer to someone as a felon, but practically, that's not the
case, not with activist DAs floating around, trying to make a name for
themselves as "tough on crime".

~~~
Cushman
Yeah, that's a fair point. But what I was getting at is that no one has ever
been convicted for endogenous possession, and no one ever will, so in this
case my point stands.

------
vacri
_Roscoe Howard, the former U.S. Attorney for the District of Columbia, argues
that the system "isn't broken."_

The US, the "Land of the Free", has a per capita prison population that it
5-10 times greater than any of it's first-world colleagues. The system _is_
broken.

~~~
sliverstorm
There could be other interpretations to that, besides "we are less free!"

Could one not argue that an increase in prison inmates is the unavoidable
consequence of increasing freedoms? It seems counter intuitive, but perhaps
the more freedoms one has, the more readily one encroaches on freedoms one
does not have?

~~~
vacri
People aren't all that different, and generally want the same things. Besides,
the US isn't that much freer than its first-world contemporaries. For example,
although we in Australia don't have constitutionally-protected freedom of
speech, the Press Freedom Index puts us as having more freedom of public
speech than in the US, and both of us are well below most of the northern
European states.

<http://en.rsf.org/press-freedom-index-2010,1034.html>

The word "freedom" occurs _much_ more frequently in American political
discourse, but that does not mean that Americans are automatically freer than
anywhere else. I find it hard to believe that those extra freedoms that
Americans do have (which most don't seem to exercise in day-to-day life) is
sufficient to cause a fivefold increase in per capita prison population.

~~~
sliverstorm
Another possible explanation that occurs to me today: the punishments in
America are greater. The guy who bombed Oslo and killed 80-some kids in Norway
is allegedly facing a max of something like 25 years. He'd get multiple life
sentences in America.

~~~
arethuza
According to BBC radio this morning it is 21 years although I believe this can
be extended for 5 years at a time if they believe he still faces a danger to
society.

------
exabrial
This is why deregulation is important. I think a perfect government has a
slightly liberal congress, with an extremely conservative judicial branch. I'd
rather be judged using the original meaning of the constitution rather than
some activist judge's interpretation of "the spirit of the constitution that
applies today".

------
noonespecial
What really disappoints me is that we apparently have people who have been
trusted with enormous power by the citizenry (the prosecutors) who seem wholly
incapable of taking a step back and asking themselves, "is this discretionary
action I'm about to take to prosecute these people going to make the world
better or worse?" and then acting reasonably.

------
kingkawn
It is cute to point out the guys getting busted for searching for arrowheads,
but upwards of 85% of the people in prison in the US are black or hispanic.
I'd guess that an even larger percentage are poor. This process is not without
a target.

~~~
dpatru
A criminal defense lawyer once told me that he was convinced that certain
police officers had a personal mission to make sure that every black boy in
certain neighborhoods has a criminal record by the time he is an adult.

------
hadronzoo
"And now bills were passed, not only for national objects but for individual
cases, and laws were most numerous when the commonwealth was most corrupt."
—Tacitus, Annals Book III, 27

------
Hominem
Of course there should be a law against taking artifacts from archaeologic
sites and laws against disturbing the sites by digging. These sites should be
posted though, much the same private land is posted "no hunting". Instead of
throwing the law out, require that the onus be on the site owner to inform
people that the site is, in fact, protected.

------
code_duck
Copyright and drug laws are the two largest offenders in this respect. Check
out the recent moves the the US Congress to make _linking_ to the 'wrong' site
a felony (the '10 Strikes' legislation).

Once they've criminalized being a common person, then the government can
exercise discretion and selection to eliminate people they does not like, for
any reason.

------
forgotAgain
Given the source of the story this is more about reducing corporate
regulations than supporting personal rights.

------
tuoru
I have no problem whatsoever with a law that criminalizes stealing arrowheads,
or other artifacts, from archaeological sites. I have no problem with laws
that prohibit poisoning water, dumping chemicals, killing endangered species,
or other environmental crimes. So, if this is proliferation, please sign me up
for more. I know that these things were not crimes fifty years ago, but we are
better off now for having these laws. Sure, there are some stupid ones, like
the Smokey Bear thing, but come on--has anyone been charged with that law?

~~~
georgieporgie
The laws are poorly written if they don't differentiate between criminal
intent versus perfectly reasonable ignorance.

~~~
ctdonath
...versus perfectly reasonable behavior.

------
maqr
"There's no way to rule innocent men. The only power any government has is the
power to crack down on criminals. Well, when there aren't enough criminals,
one makes them. One declares so many things to be a crime that it becomes
impossible for men to live without breaking laws. Who wants a nation of law-
abiding citizens? What's there in that for anyone? But just pass the kind of
laws that can neither be observed nor enforced nor objectively interpreted and
you create a nation of law-breakers." -- Ayn Rand

~~~
mkn
I'm probably going overboard by responding to both the Rand fanboy quotes, but
here goes.

 _There's no way to rule innocent men._

Yes, there is, to the extent that that rule is legitimate. Usually, just
powers arise from the consent of the governed. For example, sane people pay
taxes because they understand that they have need of the canonical services of
roads, fire service, police, the military, and the like.

 _The only power any government has is the power to crack down on criminals._

This typical Rand drivel sounds good on the surface, but either doesn't
actually mean anything or is outright wrong. If it just means that
"enforcement only comes in to play when an infraction is suspected," then it's
a tautology. If it means that the government doesn't also do things like
establish air traffic control, a consistent system of laws for the roads, and
establish bright lines like ages of consent and whatnot, then it's clearly
just wrong. On a factual level. A lie or an omission. Unworthy of a
"philosopher."

 _One declares so many things to be a crime that it becomes impossible for men
to live without breaking laws._

In very few systems, and especially in the instant case of the American legal
system, does "[o]ne" declare anything to be a crime. I often wonder where
Randians actually live, or what their connection to political reality is. Have
they not taken even a grade-school level class in civics? Oh, I'm just a bill
on Capitol Hill, anyone?

 _But just pass the kind of laws that can neither be observed nor enforced nor
objectively interpreted and you create a nation of law-breakers._

And the whole thing collapses on itself, ironically, in a fit of internal
logical inconsistency coming from the Prophetess of Logic herself, Ayn Rand.
Laws "pass" in a democratic system. Again, "[o]ne" cannot even do it. One can
only decree. "Passing" is a democratic concept pertaining to the outcome of a
vote. It seems like a nitpick, I know, but remember who was cited. This is Ayn
"A is A" Rand, who thinks that all of human nature can be derived from the
laws of logic, one of which she exclusively calls out, the Law of Non-
Contradiction.

Finally, this it's "impossible for men to live without breaking laws" thing is
really really weird when compared against reality. There are tons of laws on
the books that just go unenforced because law enforcement and the judicial
system possess the very reasoning powers that Rand so often wants to remove
from them. Remember when Taggart shot the guard near the end of _Atlas
Shrugged_? Rand justified that for the reader by dehumanizing the guard as an
unthinking automaton. Well, why aren't these unthinking automatons enforcing
laws about the size of switch with which you can beat your wife? Why aren't
they enforcing the laws in Washington state that make it literally impossible
to get a motorcycle endorsement? (You have to take the class to get the
endorsement, but you need the endorsement to take the class.) Because they're
not unthinking automatons. And the very fact that they aren't allows the other
glaring contradiction to this impossible-to-live-legally trope: precisely
those impossible-to-follow laws exist, and they don't get enforced for
_pragmatic_ reasons. Perhaps this is the real reason for Rand's oft-stated
hatred for pragmatism; It's actual effects wholly invalidate her stupid little
"philosophy".

~~~
dspace
> Yes, there is, to the extent that that rule is legitimate. Usually, just
> powers arise from the consent of the governed. For example, sane people pay
> taxes because they understand that they have need of the canonical services
> of roads, fire service, police, the military, and the like.

It is Randians who think that civilization is the only free lunch.

------
jfoutz
Good to see Mr. Murdoch's paper pushing a healthy respect for the law.

------
chadp
Welcome to the USA, land of the free...

------
irons
_The Andersons are two of the hundreds of thousands of Americans to be charged
and convicted in recent decades under federal criminal laws—as opposed to
state or local laws—as the federal justice system has dramatically expanded
its authority and reach._

"Who could have predicted that breaking into people's voicemail was going to
cause such a fuss?"

------
lhnn
Is this Hacker News? I suppose it might be tied to our theme by the story of
the inventor.

I think it's a shame that the US federal government has ballooned the way it
has, and I believe it's a slap in the face of the Constitution. Discarding the
concept of mens rea while maintaining more than 250,000 pages of regulation is
malicious, and anyone supporting this movement is not someone who should be in
political power.

~~~
brazzy
What I don't understand (as a non-US-citizen, mind you) is how the fact that
these are federal laws is relevant at all. It sounds to me like the problem is
the number of obscure laws, the vagueness of the offenses, and the lack of
mens rea requirement.

Surely it would be just as bad if these were state laws (for the citizens of
that state, anyway)? Or are there for some reason no state laws of that kind?
If so, what could be the reason?

~~~
jeangenie
IANAL but it's bad for citizens because it gives federal courts wider purview
on what they'll prosecute for and how they punish for it; needless to say, if
your case is getting pushed to federal courts you're fucked, especially when
you're being charged under statutes you've never heard of rather than state
laws which you may or may not know.

~~~
brazzy
Not "needless to say" at all. Why are you more fucked in a federal court than
in a state court? Why would you be more likely to have never heard of a given
federal statue than a given state law?

