Which is better: legal discretion or automatic enforcement?

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Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Wed Feb 04, 2015 9:06 pm

eynon81 wrote:Saz speaks for me in this thread.

we've seen this shit playing out with "0 tolerance" policies and the Bloody Code. shit don't work.


You've seen this play out for poor people and those unable to defend themselves, yes.

If a major bank breaks the law, and prosecuting them seems really unfavourable at the time, should the law be enforced?
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Re: Which is better: legal discretion or automatic enforceme

Postby Dylan » Wed Feb 04, 2015 9:08 pm

I think the somewhat messy combo we have now is pretty solid. I mean, we've gotten bad results from it here in the States but some good ones too.

Pros: more common sense / practical result more of the time. Allows prevailing norms to play into law that is sometimes decades or centuries old. Permits flexibility in times of need.

Cons: less predictable. Allows prevailing norms to effect fundamental and important law (see, e.g., fascist Germany, modern-day Venezuela). Permits flexibility in times of duress/crisis.
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Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Wed Feb 04, 2015 9:10 pm

Dylan wrote:I think the somewhat messy combo we have now is pretty solid. I mean, we've gotten bad results from it here in the States but some good ones too.

Pros: more common sense / practical result more of the time. Allows prevailing norms to play into law that is sometimes decades or centuries old. Permits flexibility in times of need.

Cons: less predictable. Allows prevailing norms to effect fundamental and important law (see, e.g., fascist Germany, modern-day Venezuela). Permits flexibility in times of duress/crisis.


Fantastic post.

But if you had to choose?
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Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Wed Feb 04, 2015 9:11 pm

exploited wrote:
eynon81 wrote:Saz speaks for me in this thread.

we've seen this shit playing out with "0 tolerance" policies and the Bloody Code. shit don't work.


You've seen this play out for poor people and those unable to defend themselves, yes.

If a major bank breaks the law, and prosecuting them seems really unfavourable at the time, should the law be enforced?


No. It would be a waste of taxpayer money.
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Re: Which is better: legal discretion or automatic enforceme

Postby Dylan » Wed Feb 04, 2015 9:12 pm

exploited wrote:
eynon81 wrote:Saz speaks for me in this thread.

we've seen this shit playing out with "0 tolerance" policies and the Bloody Code. shit don't work.


You've seen this play out for poor people and those unable to defend themselves, yes.

If a major bank breaks the law, and prosecuting them seems really unfavourable at the time, should the law be enforced?


I assumed we were talking about just with respect to government actors.

But that list above is basically right for persons too. I might add a few more specifics - like it allows officers to consider the harm to individuals of a criminal record and consider the circumstances and whether it's worth putting that mark on somebody. I've run into cops that behave this way, but mostly for certain people and not for other certain people, so that's not necessarily a positive since it exacerbates disparate treatment concerns.

Disparate impact is really a legitimate point against officer discretion, but I'd prefer to solve that through other means (open to suggestions....).
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Re: Which is better: legal discretion or automatic enforceme

Postby Dylan » Wed Feb 04, 2015 9:13 pm

exploited wrote:
Dylan wrote:I think the somewhat messy combo we have now is pretty solid. I mean, we've gotten bad results from it here in the States but some good ones too.

Pros: more common sense / practical result more of the time. Allows prevailing norms to play into law that is sometimes decades or centuries old. Permits flexibility in times of need.

Cons: less predictable. Allows prevailing norms to effect fundamental and important law (see, e.g., fascist Germany, modern-day Venezuela). Permits flexibility in times of duress/crisis.


Fantastic post.

But if you had to choose?

Oh this was about my choice - I choose discretion for the reasons above. I tend to think the pros outweigh the cons.
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Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Wed Feb 04, 2015 9:27 pm

Dylan wrote:
exploited wrote:
eynon81 wrote:Saz speaks for me in this thread.

we've seen this shit playing out with "0 tolerance" policies and the Bloody Code. shit don't work.


You've seen this play out for poor people and those unable to defend themselves, yes.

If a major bank breaks the law, and prosecuting them seems really unfavourable at the time, should the law be enforced?


I assumed we were talking about just with respect to government actors.

But that list above is basically right for persons too. I might add a few more specifics - like it allows officers to consider the harm to individuals of a criminal record and consider the circumstances and whether it's worth putting that mark on somebody. I've run into cops that behave this way, but mostly for certain people and not for other certain people, so that's not necessarily a positive since it exacerbates disparate treatment concerns.

Disparate impact is really a legitimate point against officer discretion, but I'd prefer to solve that through other means (open to suggestions....).


So what you're saying is that taking a discretionary approach is generally better, but we should still aim to offset the negatives of that approach? Those negatives being the ones you've listed above? That's pretty much the same argument I'd use against discretion. So if a mix is in order, in what direction? 50/50? Sometimes you win, sometimes you lose?

Why shouldn't the law be predictable? If a President kills an American citizen without trial or jury, with no legal jurisdiction or Congressional authorization, is that not murder?

If the Canadian government breaks the law and then wins the election, should the crime be forgotten?

It seems to me that discretion is the good intentions and corruption is the road to hell.
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Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Wed Feb 04, 2015 9:35 pm

The law would be even less predictable if you had absolutely mandatory punishments for every illegal act, because then people and governments would just come up with ever more absurd reasons their illegal acts were in fact legal. A discretion regime allows them to admit that yes, this act may have breached the law, but I did it because of X reason, and I have the political support to justify why X is a valid reason.

They both result in the exact same outcome but one is more transparent and provides the public with a justification.
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Re: Which is better: legal discretion or automatic enforceme

Postby exploited » Wed Feb 04, 2015 9:44 pm

Saz wrote:The law would be even less predictable if you had absolutely mandatory punishments for every illegal act, because then people and governments would just come up with ever more absurd reasons their illegal acts were in fact legal. A discretion regime allows them to admit that yes, this act may have breached the law, but I did it because of X reason, and I have the political support to justify why X is a valid reason.

They both result in the exact same outcome but one is more transparent and provides the public with a justification.


I didn't say mandatory punishments. I said mandatory enforcement, which basically means they get arrested and tried, again according to the law.

The law is by definition less predictable when it isn't enforced. If the public wants something to be legal, they should make it legal; if they don't, that's on them. Which is the way it is now, to be sure, but at least the rules would be clear and unequivocal for everyone.

How can the law be more transparent when it's enforcement relies upon discretion, whose exercise never sees the light of day?
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Re: Which is better: legal discretion or automatic enforceme

Postby Saz » Wed Feb 04, 2015 9:50 pm

I didn't say mandatory punishments. I said mandatory enforcement, which basically means they get arrested and tried, again according to the law.

This makes no sense. How would you know if it's an illegal act without a trial in the first place? Circular logic. Arrest everyone for an illegal act but then put them on trial to determine if they acted illegally.

The law is by definition less predictable when it isn't enforced. If the public wants something to be legal, they should make it legal; if they don't, that's on them. Isn't that closer to reality anyways?

It is legal until someone is convicted in a court. If they haven't been convicted, it's legal. You may think it's blatantly illegal, but we have courts that decide such matters, not your or the general public.

How can the law be more transparent when it's enforcement relies upon discretion, whose exercise never sees the light of day?

The exercise of discretion always sees the light of day because either someone is convicted, or they are not. Your NSA thing is a perfect example. It's obvious you think it should be illegal and you probably have grounds for believing that, but the lack of prosecution and the governments reasoning for that lack of prosecution is evidence in itself that their the act is in fact legal, or a certain amount of discretion has applied.
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