Monday, July 13, 2009

Comment Rescue from Elsewhere: Too Damn Many Laws

In response to this post from Pandagon's Jesse Taylor defending a Montana professor's prosecution for child neglect after she left her three younger children in the care of her 12-year-old daughter at the mall (the twelve-year-old abandoned the kids), commenter seeker6079 responds that this act, while perhaps a bit stupid/naive, shouldn't be considered criminal. This was a followup comment from seeker:

Hasn’t anybody noticed that this case is valuable because it is a microcosm of a larger reality? As our legal culture moves towards the enforced belief that there is a perfectible, error-free world and as the political culture moves towards that with the creation of seas of laws and regulations and sub-regulations and enforcement bodies this sort of thing is inevitable. The system is creating a platonic ideal and enforces it with subjective gut definitions of what that ideal should be.
When I was in LS one of my profs noted that one of the greatest guarantees of civil liberties is limited resources: there are only so many cops, prosecutors and courts and so the authorities can’t drag you into the criminal justice system whenever they want (and they want to all the time, and, trust me, whatever it is there’s either a law against it or a law that can be twisted to fit). I kinda think that Bozeman isn’t a town where the cops or DAs are, shall we say, overburdened with more pressing issues. They have time to be petty.

You’ll note also her perceptive realization that what was needed from here was emotional theatre: kabuki grief and remorse. The bitch must be shown to be penitent. This is difficult for many people. Me, I come from both a culture which demands (and a personal propensity towards) having one’s emotional discipline increase with the severity of the problem. (I can freak out over somebody else’s driving error, for example, but have faced some fairly serious problems and dangers with almost no emotional response at all.) I’ve noted it before but will repeat it here: some people in serious cases get arrested, tried and convicted simply because The Forces That Be (cops, prosecutors, juries) feel They Didn’t React The Way That They Should, which is one of the most bullshit and subjective measures of analysis out there. Ask Robert Baltovich, a young man who spent over a decade in jail for the death of his girlfriend, a woman who was, it now seems clear, abducted and murdered by one of Canada’s most notorious serial killers. Baltovich reacted to the disappearance of his gf with cool aplomb, helping her parents, helping the police and seeking in every way to help solve the mystery. His reward was to have the first two detectives who interviewed him walk out of the house, call their Homicide colleagues and say “he killed her”; they never seriously looked at anybody after that, and distorted, altered or buried evidence that would point to other people. Or ask Guy Paul Morin, who was convicted of a child’s murder and jailed because he was a socially awkward eccentric. Oh, never mind that the child’s brother led police to the bones because “he saw them in a dream”. Oh, never mind the fact that a local worker with a history of sexual offences against children was in the area in a company van, raced it back to the yard, and scrubbed and hosed it out—it had NEVER been cleaned before—and then fled town. No, the cops thought weirdie did it. (I mean, who relaxes by playing a clarinet alone? He MUST be a child killer.)

This is one of the reasons that I see no conflict between being a progressive on the one hand and having a libertarian’s suspicious, gimlet eye on the state with the other. We want government to work, and we want to make society a better place, including our rights to be free, to live how we want and love who we want as long as we don’t hurt anybody. The state that we rightly create to achieve these ends is also the state which, left to its own devices, will undermine those very objectives. Yeah, I know it’s a paradox. But the investigative and prosecutorial arms of the state are over-staffed with people who are certain that most people should be in goddamned jail and it’s just a question of whether you can get ‘em or not. They are people we should be warily watching.
The reason I rescued this comment is because it hints at a major problem in our society that most people don't realize exists. Or if they realize it exists, they're okay with it. Seeker points at one problem - ruthless prosecutors and cops who don't understand the meaning of restraint and who view the people they're supposed to serve as sheep to be herded into line, by force if necessary. Readers of The Agitator are quite familiar with this issue. But seeker hints at another but doesn't quite get there - the fact that, even with proper prosecutorial and police restraint, there are still just too damn many laws in most places in this country.

One of my little eccentricities is that there are several "nuisance control" laws, almost universally present in America, that I don't believe should exist, at least not in their present form. Disorderly conduct, public drunkenness, disturbing the peace - they fall into this category. The problem is that these laws don't exist to protect people from harm. If there was some harm about to befall someone else, generally these laws aren't necessary, as there are other, more serious laws that could be used. What's more, these laws are so poorly defined that they essentially mean whatever the cop watching the situation wants them to mean. No, these laws exist for the sole purpose of allowing police and prosecutors to enforce their vision of society using the coercive power of the state.

Constitutional protections exist, of course, but they only go so far. Most of the time, law enforcement officials don't make it obvious that they're trying to violate free speech or the right to assembly with a disorderly conduct arrest, and in fact, I doubt that violation of rights is their true aim. And most people lack the requisite stubbornness to take a disorderly conduct rap to the Supreme Court. Furthermore, so many people have bought into the idea of these nuisance control laws that they're rarely fought - thus, due process becomes unimportant.

I'm sure others can come up with numerous examples of the cops/prosecutors who, when faced with someone they didn't like very much, tried their damnedest to find a law they could arrest and charge them with. The mentality of "there's something we can get this guy on" runs rampant, I fear. And you know what? I don't know that the cops and prosecutors can be blamed all that much. Sure, if they're withholding or destroying evidence and railroading people, that's their fault and they should pay for it, but if they're twisting a poorly written law to their advantage... well, it's not ideal, but it's kinda to be expected, right? The shame isn't that cops and prosecutors show insufficient restraint in these situations, because in my experience, cops and prosecutors are about as restrained as you'd expect average, everyday people to be. The shame, rather, is that we have to rely on this restraint in the first place.

So next time someone or something is annoying you and you think "there oughta be a law," just remember - no, no there shouldn't. There are already way too many laws out there - no need to add another one.

1 comment:

Mike said...

One of the other problems is that the performance rating of cops and prosecutors is too wrapped up in the number of arrests/convictions achieved. That's a really horrible idea. There oughta be a law against it.