

Criminalizing everyone - Needed: A 'clean line' to determine lawfulness - cwan
http://washingtontimes.com/news/2009/oct/05/criminalizing-everyone/

======
idm
Obligatory Ayn Rand quote (via Dr. Ferris, in Atlas Shrugged):

"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 or objectively interpreted –
and you create a nation of law-breakers – and then you cash in on guilt."

My personal theory of how this situation came about, however, could be called
the "Walker, Texas Ranger" explanation. I think some lawmakers/enforcers turn
vigilante when they are convinced a would-be criminal has gotten away with
some potentially-criminal act because of how the law is written, so they seek
to change the law.

As hackers, I assume we all have a lot of experience with [computer] code, and
we're aware that a small change "here" can have unexpected side-effects
"there." I know that when I learned about SML, Lisp, and functional
programming without "side effects" I was blown away that it was possible to
formally prove the execution of some functions. In other words, it _is_
possible to write good, clean, predictable code.

Nothing like that exists for legal code, however. It's a tangled mass of
declarative assertions, nested dependencies, GOTO statements, (naive) version
control, and namespaces. A vigilante action to alter some part of the code
essentially has unpredictable consequences for other parts of the code.

The changes couldn't be measured if you wanted. In a management sense, the
project is totally out of control. Big surprise, then, that private
enforcement and prisons are a growth industry. Some people see this for what
it is: an opportunity. Just make sure you're an investor instead of a
"customer."

~~~
te_platt
The cases cited in the story are more in line with bureaucrats maintaining
budget. By that I mean you have an agency that needs to justify their budget
of X dollars with Y convictions to show for it. It's hard to imagine any of
the agents mentioned being much concerned about orchids. It's easy to imagine
them being concerned about their careers.

~~~
idm
Agreed.

Whatever the motivations of the agents referred to in the article, it is still
the case that "inappropriate" laws were applied to (presumably) non-criminal
activity. It's just speculation on my part, but my theory had to do with those
how those laws came to exist.

Once the laws exist, then it's just a matter of any agent sufficiently
familiar with those laws to apply them. By that point, it doesn't need to be
vigilante activity. An agent with only the best intentions can end up causing
harm (i.e. convert a free citizen into a criminal) simply because the laws are
flawed.

------
isamuel
And that's why you should never talk to the police. Really. Ever.

<http://video.google.com/videoplay?docid=-4097602514885833865>

[http://www.schneier.com/blog/archives/2008/07/why_you_should...](http://www.schneier.com/blog/archives/2008/07/why_you_should.html)

~~~
cschneid
While excellent advice, that's not the issue that the article is talking
about. You can be the most silent, rights knowledgeable person and still get
screwed by Federal law.

I'm currently reading a book titled "Three Felonies a Day" which details how
the federal criminal system is broken. The book itself unfortunately is a
series of anecdotes, rather than a deeper analysis of how we got to this
situation. If you can find it at the library, I recommend skimming a few of
the stories to get a feel for what's going on.

I'm obviously not a lawyer, but as far as I understand, federal law does not
require a "guilty mind" (<http://en.wikipedia.org/wiki/Mens_rea>), at least
not to the same degree that traditional state law requires. In addition, many
federal crimes are written very vaguely, sometimes to good effect (handling
unforeseen criminal acts, obviously wrong, but not specifically banned by
law), but more often to ill effect (yeah, that's fraud!).

Then, finally, there is the issue of the approach federal prosecutors take in
pursuing cases, in which the push for convictions is more important than the
push for justice. This results in approaches to cases such as "ladder
climbing", where you indict the lower rungs of an organization (mayor's aids
for example) with the threat of years of jail, and have them plea bargain out
to almost nothing in exchange to testify against the person above them. Often,
the choice for the person being accused is so obviously one sided that they'll
creatively spin their testimony so that innocent behavior suddenly because
"fraud" or "obstruction of justice" or similarly vague crimes.

One more sneaky thing that federal prosecutors do is that certain things are
crimes, even where not obvious. For instance, lying under oath is obviously a
crime (perjury). Lying to a federal officer while not under oath is also a
crime (a felony no less).

So basically, federal prosecutors can pin very serious crimes on almost
anybody they wish, as this article pointed out with import/export restrictions
about flowers.

------
fnid
_A person should not be deemed a criminal unless that person "crossed over
that line knowing what he or she was doing."_

We used to say, "Ignorance is no excuse for the law." The situation now
though, is that there are so many laws and regulations that it is impossible
not to be ignorant. Not only do we not know the laws, but we don't know how to
find out what the laws are. Small business owners are especially prone to
mistakes considering there are corporate laws, civil laws, tax laws,
employment laws...

~~~
trebor
I think that there must be an exception for certain crimes, but not all
crimes. Otherwise, a murderer, rapist, thief, corporate spy, hacker, etc,
could claim that they didn't know it was illegal and probably get off the
hook.

~~~
jerf
The one being discussed is "criminal intent". It's an admittedly fuzzy term,
but clearly if you're murdering someone, you have criminal intent regardless
of your knowledge of whether it is illegal.

Well... mostly clearly. Clearly enough in the murder case, but there's
certainly fuzzy cases. Still, there are an awful lot of crimes on the book
that when you lack criminal intent, it doesn't actually make sense to
prosecute from either a "rehabilitation" _or_ "punishment" point of view, such
as the ones in the article. What did society gain by _any_ useful metric in
the orchid case? In fact it lost a lot for no good reason.

------
wheels
This was killed the last time it was here:

<http://news.ycombinator.com/item?id=722676>

That time via Fox News:

[http://www.foxnews.com/opinion/2009/07/21/heritage-house-
law...](http://www.foxnews.com/opinion/2009/07/21/heritage-house-law/)

They're essentially identical and both written by the same partisan think tank
dude.

~~~
blasdel
And this one's in the _Washington Times_ \-- the shittiest partisan rag in the
country, run at a massive loss by the Moonies.

Whoever's funding this set of talking points clearly wants to push
deregulation of some sort using it as pretext.

------
DanielStraight
There are times I think the number of laws should be fixed... at say 1000. If
congress wants to make a new law, they have to remove an old one.

~~~
tc
That's a good idea, though the constant should be lower. Human societies
survived for thousands of years with on the order of 10 ( _very_ popular) to a
few dozen criminal statutes.

~~~
DanielStraight
Well, we do have a lot more to make laws about now. Internet privacy law was
clearly not a concern for cavemen. If you make the law too general, you'll
have the same problem.

~~~
tc
There's a legal scholar (and I'm blanking on the source at the moment) that
makes a very convincing point that a small handful of laws (against violence,
fraud [1], etc.) covers 95-98% of all cases. The other 2-5% of cases are
necessarily judgement calls. What's interesting is that the percentage of
cases requiring judgement calls doesn't decrease as you go from N laws to
10,000N laws.

[1] To your point: it's true that we have more things we can make laws about,
but I suspect that it isn't true that we _should_ make laws about every
specific thing. Fraud is fraud, murder is murder. It shouldn't matter whether
you use the internet, a telephone, or pencil and paper to defraud someone, in
the same way that we don't need a separate murder statute for each choice of
murder weapon.

~~~
iron_ball
And the exact application of those few laws in nearly infinite situations
would require first a caste of extremely powerful judges, and later an
accumulation of precedents which would effectively become a massive and
complex legal code in itself.

~~~
tc
Some brilliant thinkers centuries ago developed an ingenious technology for
constraining judges: _juries_.

Of course, juries work better when they are able to find on both the facts
_and_ the justice of the law. We've deviated from this at our peril.

 _Mens rea_ , criminal intent, has historically been the simplifying agent in
law. That's why you don't see a terribly complicated set of case laws
surrounding, say, murder. The problem with lots of current criminal statutes
is that you can be guilty of violating them without any intent to harm.

~~~
iron_ball
And will your legal system include only such clear-cut cases as premeditated
murder? What do you do when someone starts file-sharing your program? Apply a
single, simple, almost certainly ambiguously worded law about theft? And let's
pretend your law is perfectly worded so as to have a clear application in
every single situation: do you deem file-sharing theft?

What about if, in self-defense, someone goes further than necessary? He's
attacked and choked by someone bigger and stronger. He reasonably fears for
his life. Through chance or skill, he gets the upper hand, and knocks his
attacker out. Then, before caveman adrenaline has faded, he slams the guy's
head into the pavement until he dies. Do you apply the single "thou shalt not
kill" law?

I don't really want answers to these specific questions, but to the meta-
question: how do you handle actions which are harmful to society, but which
cannot be resolved by straightforward common-sense ethical reasoning?

~~~
tc
I would refer back to my grand-parent post.

The hard, borderline cases that you mention are relatively rare. No matter how
complicated your system of laws, these cases tend to require humans, either
judges or juries, to make a careful decision.

If you have 10,000 laws rather than 10, you end up instead having to decide
which of the many conflicting laws that could be applied should be applied to
the situation. In marginal cases, human judgement is extremely difficult to
replace.

~~~
iron_ball
Well, from this and another post, you seem to be concerned mainly with overlap
between similar laws -- a natural result of a large and fragmented legal code.
Why not prune it instead of scrapping it? Refactor instead of rewrite? Insert
jwz quote.

------
redsymbol
It's easy to have an emotional reaction to this. But maybe it's smart for us
to think coolly and practically for a moment. This trend is probably unlikely
to reverse in the short term. Until then, how can those of us in the USA
protect ourselves and those we care about?

The two examples in the article were both entrepreneurs and small business
owners. Would it have helped them to have better legal representation from the
beginning? If so, exactly what form?

The article didn't mention their legal structures used; the fuel cell fellow
may have been incorporated somehow, but I'd bet the orchid importer's vehicle
was a sole proprietorship. Would operating as a corporation or LLC have
helped?

I doubt this is something we can answer fully in this thread. But maybe we can
get started.

-Aaron

~~~
DanielStraight
I don't see how there's much you can do. It is probably impossible to go a day
without breaking a law unknowingly. The law is so big that it is impossible
for a single person to know all of it. In other words, even if you did nothing
all day but study law, you could end up unknowingly breaking a law and going
to jail. The problem is with the law, not with people.

~~~
noonespecial
I think the opposite is true here. Inspector Javer will always make it his
career and his life to chase Jean Valjean. It doesn't matter whether there's 5
laws or 50000.

There are certain people in the world like this. There always have been.
Unfortunately, they seem to be drawn to law enforcement. The best any system
can hope for is to minimize their impact. I do agree that our current system
does a very poor job of it.

~~~
aaronblohowiak
A better system would be for education and compliance programs instead of
imprisonment. It costs about $40k/year to keep someone in prison. Surely it
should cost less to teach them how to do things on the up and up (which would
be easier if the law was navigable.)

------
DanielBMarkham
I had a high-ranking local police official tell me over 30 years ago that
there were so many laws that the police could basically control whoever they
wanted by selective enforcement of the legal code.

Of course that wouldn't work for a rich or famous person -- the cops would be
embarrassed -- but for the rest of us we've been in a situation for many
decades where there are so many laws that we're basically in a police state.
The only reason more folks don't rise up is that so far, mostly, it's a
benevolent dictatorship.

I love the analogy between code and the law, because it's so true. We in the
IT industry have a unique insight into how complex systems are created and
maintained. Our current legal system is way out of whack.

But politicians get elected for _doing something_ \-- and that means spending
money, passing laws, or fighting wars. That's about all the options they have.
So the system continues to spend more and more money, create more and more
complex laws, and we end up with "wars" on poverty, drugs, and carbon
emissions.

All laws should have an expiration date.

~~~
tc
_Of course that wouldn't work for a rich or famous person_

Martha Stewart might disagree.

In many ways, the rich and famous actually make perfect targets. Prosecutors
and politicians can stir up some of the general contempt that many people
still quietly harbor against the wealthy. It can be a great way for a budding
prosecutor to break into higher office (c.f. Eliot Spitzer).

Your observations are otherwise completely sound.

~~~
jonny_noog
Yeah, and in many ways, they don't make perfect targets. In the case of Martha
Stewart, it seems she only got taken down because there were vested interests
more powerful than her interested in that goal.

I agree that rich/famous people certainly can make a good target, but whether
a particular rich/famous person will make a good target depends on the power
to which that individual has access to, obviously. Money talks, regardless of
how many people hate you for having it. I would suggest that the amount of
wealth an individual has access to would be a far more accurate predictor of
whether that individual will be taken down in court as opposed to celebrity.
It just so happens that many famous people are also wealthy.

Sure there's always going to be exceptions, but you can't seriously be
suggesting that rich/famous people in general make perfect targets in court?
I'm thinking a famous, yet poor person might be the best kind of target.

------
TravisLS
Considering how much trouble people have navigating even the simplest computer
interfaces, sometimes I wonder how anyone could possibly understand all of the
laws that impact their daily lives.

------
Adam503
The Washington Times is owned by Rev. Moon.

