Legally Insane

Here's an idea! Let's make a law that's really strict, draconian and with some severe penalties for violating it. But, we'll let law enforcement only selectively enforce it. And we'll give a little wink and nod when judges ignore the sentencing requirement and give only a fraction of the penalty written into the law for those few the law is actually enforced on. Isn't that a great idea? Doing this would allow us to "scare" criminals by the mere threat of such a law, while then allowing us to constantly show compassion in only selectively enforcing it and partially implementing it.

But there'd be a problem. Some people actually believe laws should be obeyed, and in order to make such a law strict enough it would have to criminalize what would normally be acceptable behavior. A lot of people wouldn't have a problem with such a law, because they believe law, and morality for that matter, is something that should be an individual choice based of the convenience of the moment. But others, stubbornly hold on to the concept of a moral absolute, and the principle that a civilized society should have reasonable laws accompanied by reasonable enforcement. Under our proposed law, these people would find life very burdensome, because they would try to obey a law never actually intended to be obeyed.

Yes, eventually criminals would figure the law out, and adjust their response according to the actual consequence rather than the actual law, but we'd simply then make the law even more draconian to scare them even more. Maybe we could target a few people at random who've somehow violated the law (intentionally or unintentionally) punish them with lengthy, expensive trials, followed by lengthy prison sentences and outrageous fines, make a big deal about it in the press, throw parties for the law enforcement officers that brought down the scapegoats, er wanton criminals, toss out promotions to the "good guys" and scare the real bad guys into maybe not doing the thing we actually wanted them to not do in the first place. Sort of. Maybe. It should work. Right?

Welcome to American Legal Philosophy 101.

What I've described is actually how much of our laws are written. We've got all the immigration laws, yet they're rarely enforced. We let repeat criminals stay in the country, while deporting people who grew up here, never being told they weren't US citizens. Making scapegoats out of the innocent in hopes it might frighten they guilty, which we don't prosecute. We don't guard our borders, then the media accuses those that try on their own of being racists. We make laws requiring stricter sentencing on those who use guns when committing a crime, then selectively apply the new sentencing guidelines to railroad the few law enforcement officers who actually assumed they were supposed to do their jobs.

The pervasive attitude that laws are suggestions has created a climate of quasi-anarchy. We have speed limits, but they aren't very seriously enforced. Most speed limits, therefore are placed at least 10mph slower than what they reasonably should be placed at, in hopes that it would slow drivers down in the absence of any realistic enforcement.

What's ironic is that the real victims in all this are those who actually try to abide by the law, but these are laws that become increasingly ridiculous as the words of the law-- rather than the enforcement-- is used to deter criminals.

Posted by Danny Carlton at March 26, 2008 9:54 AM