No One is Innocent

I broke the law yesterday and again today and I will probably break the law tomorrow. Don’t mistake me, I have done nothing wrong. I don’t even know what laws I have broken. Nevertheless, I am reasonably confident that I have broken some laws, rules, or regulations recently because its hard for anyone to live today without breaking the law. Doubt me? Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.

Harvey Silverglate argues that a typical American commits three felonies a day. I think that number is too high but it is easy to violate the law without intent or knowledge. Most crimes used to be based on the common law and ancient understandings of wrong (murder, assault, theft and so on) but today there are thousands of federal criminal laws that bear no relation to common law or common understanding. The WSJ illustrates:

Last September (2011), retired race-car champion Bobby Unser told a congressional hearing about his 1996 misdemeanor conviction for accidentally driving a snowmobile onto protected federal land, violating the Wilderness Act, while lost in a snowstorm. Though the judge gave him only a $75 fine, the 77-year-old racing legend got a criminal record.

Mr. Unser says he was charged after he went to authorities for help finding his abandoned snowmobile. “The criminal doesn’t usually call the police for help,” he says.

Or how about this:

In 2009, Mr. Anderson loaned his son some tools to dig for arrowheads near a favorite campground of theirs. Unfortunately, they were on federal land….

There is no evidence the Andersons intended to break the law, or even knew the law existed, according to court records and interviews. But the law, the Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.

The Anderson’s didn’t even find any arrowheads but the attempt to find was punishable by imprisonment. Under statutes such as the Lacey Act one can even face criminal prosecution for violating the laws of another country. Ignorance of another  country’s laws is no excuse.

If someone tracked you for a year are you confident that they would find no evidence of a crime? Remember, under the common law, mens rea, criminal intent, was a standard requirement for criminal prosecution but today that is typically no longer the case especially under federal criminal law .

Faced with the evidence of an non-intentional crime, most prosecutors, of course, would use their discretion and not threaten imprisonment. Evidence and discretion, however, are precisely the point. Today, no one is innocent and thus our freedom is maintained only by the high cost of evidence and the prosecutor’s discretion.

One of the responses to the revelations about the mass spying on Americans by the NSA and other agencies is “I have nothing to hide. What me worry?” I tweeted in response “If you have nothing to hide, you live a boring life.” More fundamentally, the NSA spying machine has reduced the cost of evidence so that today our freedom–or our independence–is to a large extent at the discretion of those in control of the panopticon.


So, does ad hoc enforcement, universal criminality, and total information awareness bode well or poorly? Perhaps we'll try the Socratic approach for a while.

Oh, and remaining silent is now evidence against you. Have a great day!

Shocking - except that is not quite the case. Unless you are legally unaware enough to think that voluntarily talking to the police, especially when you have actually committed a crime, is a good idea. It isn't, though obviously, this is not legal advice.

But for those lawyers who do feel competent to provide advice, they have consistently advised against voluntarily talking to the authorities, especially when you have actually committed a crime, for decades.

Even back in the wonderfully free days of Reagan's war on drugs.

So, let's say you are right (forgive me if I have my doubts) then YOUR BASELINE is never talking to the police, even when there is some question as to whether non-cooperation will be used as evidence let alone mitigating circumstances, nevermind expecting everyone to have any amount of legal awareness.

Excuse me, but this is a problem in a supposedly free country. My only question is why don't you get that?

Maybe being convicted for being silent it is too strong to say you are "compelled." Maybe it's a tax. Or a fine. I forget.

Seriously, how many years of law school does it take to twist "shall not be compelled" into "it's okay to be compelled."?

There was a pretty strong argument for everyone's baseline to be never talking to the police well before the (awful) Saletan judgment:

In a country with the prosecutorial zeal and levels of incarceration that the US has (actually, that's just the US - there is no other country with anything approaching your levels of incarceration), any interaction with the criminal justice system is potentially hazardous.

Yes. I know to never cooperate with the cops.

How, exactly, do you think we got to be at the place where we live in a country where the wisest advice is to (have a legal degree) and never cooperate with the authorities?

"How, exactly, do you think we got to be at the place . . . ?

By serially voting in Obamas; Bushes; Clittons; Bloombergs; Rieds; Pelosis; Kennedys; McCains; et al.

6/20/2013 WSJ: George Melloan, “A Jeremiad to Heed” is a review of Niall Ferguson’s book, “The Great Degeneration.” Mr. Melloan writes about “the strangling of private initiative by an ever-encroaching state.” Professor Ferguson cites crises in economics, politics and culture. The threatened institutions are: representative government, free markets, the rule of law, and civil society. Regarding the erosion of the rule of law, politicians ignore the Constitution and spawn huge numbers of “unwise and unenforceable laws and regulations.” As government expands, civil society retreats.

Case in point: see same WSJ page C1, “Banks Blunder on Mortgage Pact.” The article cites “29 standards of providing timely and accurate relief to” defaulted debtors in foreclosure. Later it states, “The settlement also included 304 new standards governing the loan-modification and foreclosure.” The four largest home loan servicers and Ally Financial are again being threatened with sanctions because they cannot handle the massive volumes of loans that will not be repaid. The so-called “mortgage pact” was a politically motivated, governmental stick-up. As a result, investors owning several hundred thousand defaulted home loans will suffer significantly higher losses.

Except as you point out remaining silent is now evidence of guilt. Prosecutors were already overly quick to charge with obstruction if they could not make anything else stick.

Agreed. That ruling has gotten surprisingly little reaction given how important and completely f****d it is.

And let's not forget. Aside from a wrong ruling, they had no evidence.

I kind of think that the courts do everything ass backwards. Rather than crafting a way to rotoscope around a constitutional protection why not figure out how to stay as far clear as possible.

And how 'bout enough with this "balancing the interests of the police and the accused." There is one interest, the people.

Fascinating - throwing out mail as a crime requires intention, as the linked text demonstrates -

'...with design to obstruct the correspondence, or to pry into the business or secrets of another, or opens, secretes, embezzles, or destroys the same.'

In other words, throwing out mail for someone else is perfectly fine, as long as no obstruction is intended.

But that actually explaining the law would ruin the narrative flow, wouldn't it?

'but it is easy to violate the law without intent or knowledge'

That is simply an inaccurate statement - intent generally counts, as the example already cited demonstrates, using the text of the law itself, though of course, numerous exceptions exist.

'...about his 1996 misdemeanor conviction for accidentally driving a snowmobile onto protected federal land, violating the Wilderness Act, while lost in a snowstorm.'

And the Park Service ticketed me for having my motorcycle's kickstand on the grass at the parking lot for the Washington Monument, though the bike itself was on pavement - it never occurred to me that it would be a violation, but then, the National Park Service also ticketed me at 3am for parking at the Lincoln Memorial in February in a snowstorm - my outrage still remains contained concerning both incidents, however. Including my 'criminal record.'

The 'Archaeological Resources Protection Act of 1979, doesn’t require criminal intent and makes it a felony punishable by up to two years in prison to attempt to take artifacts off federal land without a permit.'

And this is aurprise how? I'm also not allowed to chip away at the Lincoln Memorial, regardless of intent. And I would love to see someone attempt to argue how when I dig up someone's yard, not knowing that it was actually their property, this would be a valid defense. Even if I didn't find anything of value to remove.

"If you have nothing to hide, you live a boring life.”

Most Americans do, actually.

'...our freedom–or our independence–is to a large extent at the discretion of those in control of the panopticon'

And this is a statement was equally applicable to 2004, 1994, or 1984 - a funny anecdote in the Post decades ago, is how Mickey Mouse, Goofy, and Donal Duck received Selective Services letters in a NoVa household because the Farrell's ice cream chain sold its customer lists to the government, including a lot of bogus information filled out by 10 year olds.

Americans live in the world's first profit oriented police state - I would have rather thought libertarians would be celebrating the fact that the government has such a reliance on the free market for information - the NSA needs AT&T's, Verizon's, et al's compensated cooperation to be able to collect the information effectively in the first place.

I'm not a lawyer, but that doesn't appear to be correct reading of the law. By my reading, the following are punishable:

Removing a letter from a mailbox:

1. with design to obstruct the correspondence, or
2. to pry into the business or secrets of another, or
3. opens, or
4. secrets, or
5. destroys the same.

Intent is required for the first and second, yes, but opening, secreting or destroying are crimes in and of themselves. Why do you think 'design to obstruct' applies to all the cases? It doesn't even make sense for #3. You could open the letter, reseal it, and pop it back into the mailbox. That wouldn't obstruct the correspondence but would still violate this law, no?

Why wouldn't it? (see the role of commas in American law) - but then, I am neither a judge, nor a lawyer. And for that matter, I don't live in the U.S.

In Germany, this 'problem' is easily resolved - the mail delivery person is forbidden from delivering any mail that is neither generically addressed ('resident') nor incorrectly addressed (only the name on the mailbox). In other words, when the Post screws up, it isn't your problem.

Of course, junk mail delivery is not a leading source of revenue for the German Post, not to mention the entire aspect of data protection laws forbidding the casual creation of commerical databases, as found in the U.S.

You are indeed wrong. The law does not require intent when you destroy the mail.

It may be illegal to dig up property on someone else's land accidentally, but I don't think it's a felony, nor should it be.

The presence or absence of commas in that sentence notwithstanding, intent is not required for opening, secreting, or destroying. This is true under both standard and legal grammatical norms. The reason the "with design to..." and "to pry into..." clauses are there is to make attempted interference with the mail a crime. Opening, secreting, and destroying are successful interferences with the mail, are criminally punishable, and no intent is required.

Under classic Anglo-American law upon which the United States was founded .... becoming a "criminal" required a person to physically 'act' with deliberate 'intent' to violate the law with awareness of the illegal nature of that action.

Lawful conviction of a crime required fair judicial proof beyond a reasonable doubt of both:

'Actus Reus' {... a bad act} & 'Mens Rea'{... a guilty mind}

But in today's American 'legal system' {especially at the Federal level} -- anyone can become a convicted & severely punished "criminal" -- without any actual knowledge of the "law's requirements" and with no wrongful intent at all.

And the body of legislative/administrative "law" is now so vast ... that absolutely no one (even lawyers & judges) can even begin to "know the law".

This is absolutely correct -- today in America, intent rarely matters. Take a look at this case:

The only protection we have is for reasonable judges to throw cases out, but that often won't stop zealous prosecutors from appealing until they find a sympathetic judge.

"Rarely"? Come on.

No, it was NEVER a requirement that the person intend to violate the law or have knowledge it was an illegal act. It was only required that they have an intent to perform the act that is criminal. So for example, it would not be require that the person knew it was illegal to dig on Federal lands, that would make law in general unworkable. But traditionally it would have been required that the person knew they were digging on Federal lands. Otherwise, no mens rea.

They would know they're not digging on their own land. And, in fact, it's very likely that they would know that they are not trespassing (and digging) on land owned by a private individual. In the West, you're expected to know when you are out in the woods whether you are on public land or not -- and I think failure to know you're in a national park or a national forest would usually be willful ignorance.

Oddly enough that was a key point in the debate over the individual mandate. A person who does not purchase health insurance does not "act", and imposing a positive duty to act without prior agreement from the individual alters the traditional relationship between the citizen and the state. That's why the Supreme Court rejected the commerce clause argument. (Of course then Roberts decided it was a tax ...).

Slocum June 21, 2013 at 7:58 am
I’m not a lawyer,

Well, now you are just bragging.

I'm confused. The examples you cite of getting tickets seem to contradict your arguments against Alex. Plus, saying "they still have to show intent" isn't much of a defense of the morass of laws and regulations we face. The costs (or threat of costs) for being taken to court even if the case is thrown out or the prosecution fails to prove intent is HUGE.

the NSA needs AT&T’s, Verizon’s, et al’s compensated cooperation to be able to collect the information effectively in the first place.

That's going to depend on what you mean by "effectively." It's easier for the NSA when it has their cooperation, but then again it's easier to get their cooperation because those companies are highly regulated. It's unsurprising that the more heavily regulated telcos have cooperated more and resisted less than the less heavily regulated Internet services companies. So just don't forget that part of government-enforced net neutrality (as opposed to the status quo net neutrality) would be making it slightly easier for the NSA to get its way from companies. (But perhaps you think it's already easy enough, so a little more won't hurt, fair enough.)

Naturally if those things were nationalized then no cooperation would be necessary.

Americans live in the world’s first profit oriented police state

I do hope that you're not trying to give the impression that you really wouldn't care if we were in a police state or not, or if people were being imprisoned unjustly, or if laws keep people behind bars too long, or if they're abused or not, so long as no profit was involved. However, reading your comments here, I always get that impression. (As though, say, the prison guards' unions isn't just as bad on lobbying against prison reform as private prisons.)

'so long as no profit was involved'

Let me ask a question in all sertiousness - did the privatization of prisons contribute to America's extraordinary rate of imprisonment or not? If not, why is it that none of the totalitarian governments - with the exception of North Korea, which is itself a prison in most ways - has as many prisoners as the U.S:?

For someone commenting on a public choice oriented site, that is a nice example of sliding by the glaringly obvious.

The answer is no. It's the other way around, increased imprisonment caused the private prison boom, just as with the NSA, who doesn't need the private companies, but they just don't want to turn down freebies.
"The 1980s, though, ushered in a new era of prison privatization. With a burgeoning prison population resulting from the War on Drugs and increased use of incarceration, prison overcrowding and rising costs became increasingly problematic for local, state, and federal governments. In response to this expanding criminal justice system, private business interests saw an opportunity for expansion, and consequently, private-sector involvement in prisons moved from the simple contracting of services to contracting for the complete management and operation of entire prisons."

Sure there could be some positive feedback effects, but while largely irrelevant, noone has denied that. Just is it is irrelevant to my E-mail archives whether I have access to them. I don't want the government to spy on them.

"The trend toward privately operated correctional facilities has continued with 85,604 adults (3.7% of the total US prison population) now housed in 107 privately operated prisons.2011"

I believe he is conflating intent with knowledge of the law, that is, knowing that the thing he is doing is illegal. It is easy to find intent to do the act in question when the statute requires an act for the resulting breach. Part of the complaint from civil libertarians today is that so many acts which are not intuitively wrong, malum in se, are nevertheless illegal for policy reasons, malum prohibitum.

If you are chipping away at the Lincoln Memorial, you may be pretty confident that it is illegal even if you haven't read the statute. But picking up arrowheads in a campground? Now I gather there are more than a few lawyers in this discussion, so don't judge by your own likely intuition if you are a lawyer. How about the intuition of a warehouse worker with a high school education?

But what about those many rules and regs which do not require an act, but may be based on omission? If you drive with your taillight out, you are guilty whether or not you knew it was out or even whether you are driving your own car. Regs of that character - I believe they are referred to as strict liability regs -- are frightening when the violation rises above the misdemeanor level. And there are many that affect business operations, if not everyday life.

The risk in all this, is that it allows a prosecutor, or an agency which enforces rules, to prosecute for reasons not really related to the alleged violation. A personal vendetta, or maybe for political reasons. Therein lies the extreme danger when everyone is guilty of something all the time.

I'm confused. I know "ignorance of the law is no excuse", so the people in the second example are out of luck. But as for the first guy, there would seem to be a serious question about whether he had the requisite mens rea for there to have been an actual criminal offence. Did he know he was driving onto fed land? If not, he didn't commit a crime, at least by the definition in my home jurisdiction. Does the US allow for strict liability when it comes to criminal law? I'm not familiar with your system. But that would be extremely retrograde if it did. He probably should have appealed.

IANAL, but my understanding is that in legistlative criminal laws - that is, criminal statutes passed by Congress - mens rea is either not assumed to be a requirement to violate the law and so Congress has to specifically mention it, or Congress can write the statute to have strict liability. So normally there's no strict liability in US criminal laws, but there can be and often is when legislators was to look tough on crime.

Yes, the US has strict liability when it comes to criminal law. For instance, suppose you fold a sheet of paper into the shape of an airplane and give it to someone. You have manufactured a children's product and transferred it to someone without testing it for lead and certain other substances. That's a federal felony. I don't think the three-a-day guess is an exaggeration. it's probably an underestimate. No one even knows how many federal crimes there are.

But in your example, the person would have mens era. They had the intent to fold the airplane and give it to someone, they just didn't know it was illegal.

It would only be strict liability if the charge applied to someone who e.g. unknowingly folded a dollar bill into that shape -- say it was in their pocket while their clothes were in the laundry -- and then unknowingly transferred it to someone, say by having it fall out of their pocket.

In the examples from the original post, the Andersons had mens rea even if they didn't know about the law (because they willingly committed a prohibited act). Whereas the other guy might not have had mens era, because he might not even have known he was on fed land. That's the point I was trying to make.

Given the immense body of law in our modern, overregulated society... I would say that ignorance of the law is a very good excuse.

What I learned in law school is that the federal government can make strict liability criminal laws, but only for relatively minor offenses that do not involve jail time. For jailable offenses, there must be a mens rea, but there can be different levels required. The lowest is negligence. If it does not specify, the assumption is knowingly. Strangely, that does not seem to apply to statutory rape, although it should. I seem to recall cases where everyone thought the girl was in her 20s and it didn't matter.

What you learned in law school is wrong. It is common today for Federal felonies involving jail time to be strict liability crimes. Look at the Consumer Products Safety Improvement Act for one of many examples.

Well granted I am far from an expert, but my understanding is that while the doctrine was floundering, it still mattered. Sometimes people are confused about mens rea and think something is strict liability when it is not (not saying that is the case for you or not). I would be interested if you could post some links.

The CPSIA attaches criminal liability only to acts committed "willfully and knowingly."

So what does that mean? Someone who makes something for sale is doing it willfully and knowingly. If they don't do the proper provenance paperwork for the inputs, yet go ahead and make it and sell it, is it not willfully and knowingly?

KLO is correct. Even the stiff civil penalties - potential liability up to $100,000 per violation - requires that one act "knowingly," which is defined as "(1) the having of actual knowledge, or (2) the presumed having of knowledge deemed to be possessed by a reasonable man who acts in the circumstances, including knowledge obtainable upon the exercise of due care to ascertain the truth of representations."

And in plain English, if that is even possible?

So 15 U.S.C.A. § 2069(a)(1) states in part, "Any person who knowingly violates section 2068 of this title shall be subject to a civil penalty not to exceed $100,000 for each such violation." 15 U.S.C.A. § 2069(d) has the definition I gave in my previous comment. Therefore, even though I don't do this kind of law, I would expect that someone could be subject to civil penalties for a violation if he was found to have known he was violating the act, or if he "should have known" he was violating the act.

As for the criminal penalties which require that the person violate the law "knowingly and willfully," willfully, in layman's terms, basically means not only knowing that what you are doing violates the law, but being a real asshole about it.

The Supreme Court has not always interpreted "knowingly" to require that the individual know what he was doing was against the law. It depends on the context. For purposes of the CPSIA, it does not appear that knowing that the act is against the law (or being in a position such that one should have known the act is against the law) is a required element for every single act for which one can punished criminally. So, for example, it would appear possible for all of the elements of a criminal CPSIA violation to be met when a person imports toys from China that contain lead paint even when the person does not have actual knowledge that the toys contain lead paint and does not know that importing toys with lead paint is a violation of the CPSIA. Indeed, I think the first CPSIA prosecutions fit that the description. The individuals indicted repeatedly imported toys from China that tested positive for hazardous substances. As far as I can tell, the indictment does not allege that the individuals knew the toys contained hazardous substances before the goods were imported. It only alleges that:

(a) the individuals repeatedly imported goods containing hazardous materials;
(b) many of these goods were siezed, and, after testing, showed high levels of hazardous materials;
(c) the individuals were told on 17 different occaisions that goods they imported had tested positive for hazardous materials; and
(d) after being told that they were importing goods containing hazardous materials, the individuals continued to import goods containing hazardous materials.

That's because knowingly is defined to include what a reasonable person would have known. A reasonable person is not going to continue to import goods containing hazardous materials after being told that they are importing goods containing hazardous materials. A reasonable person is going to take measures to fix that problem.

By the way, products liability is the classic strict liability tort... so you might expect some of that to find its way into the criminal statutes as well

There is no requirement that you know X is "against the law," only that you are willfully/knowingly doing X.

So, say that it is illegal to have sex with a 17 year old. Say the Mens Rea requirement is negligence - that is, a reasonable person would have known they were 17. If you know they are 17, and have sex with them, you have committed the crime. If you could very easily deduce that they are 17, and have sex with them, you have committed the crime. If a reasonable man in your situation would figure out they're 17, and you have sex with them, you have committed the crime.

You do not, absolutely do not, need to know, think, or even be negligent as to the fact, that it is illegal to have sex with a 17 year old.

Appealing is expensive. Only rich people can do that.

How hard would it be to prove intent? You don't know of a bunch of stories of people being convicted of these type crimes?

I PERSONALLY know a guy who turned himself in for having a type of contraband, sorry I won't be more specific, thus proving he had no "intent" and then spent 2 years in prison.

Alex did a great job explaining this, does he need to try again?

Also, if you aren't aware of obvious misinterpretations of law by prosecutors, judges, and even the Supreme Court you simply aren't paying attention. We even have examples where the jury is preventing from actually hearing what law is being accused of broken. A lawyer "proving" "intent" is just a trivial matter.

It's just funny that someone would think that by saying the government shouldn't prosecute people it obviously could then the three felonies a day thing isn't a thing. Does everyone in your life have to work this hard?

We also have a president who denied wiretapping three times before the cock crowed. Prosecutors are stand-up guys?

In fact, how could you REALLY PROVE intent? Since you can't, I'd argue that they wouldn't even have to. They'd use the action as evidence of intent.

I prefer The Volokh Conspiracy when it comes to legal perspectives funded by the same people that fund the Independent Institute or the Mercatus Center - at least provides commentary from actual law professionals.

Still the same fundamental spin, of course (you get what you pay for), but at least the people there have an idea of what they are discussing - Kerr does an excellent job providing a solid overview of the law in relation to Supreme Court decisions here -

I don't care who you prefer.

And not reading one of the premier legal writers on the Internet? - just another example of why so many of your comments are to yourself. And Tyler Cowen also used to post there - not that you are interested, of course.

I read it.

The point is I don't have to.

After a bunch of mumbo jumbo he agreed with me...and Alex. So you have no point.

Lawyers are paid to make things complicated, dependent on lawyer interpretation, and ultimately the whims of lawyers:

You can't get much simpler and straight-forward than: " nor shall be compelled in any criminal case to be a witness against himself,"

If you don't know that what cops are going to do is threaten people with escalation of questioning, then "custodialization," followed by prosecution, lack of pleas, etc. then you are either a lawyer or really can't be helped.

Your linked article sure manages to use a lot of words to be so full of shit.

This poor guy was convicted based on his response to an accusatory question. Shotgun shells don't "match" murder weapons. There are no rifle marks. Everyone has a 12 gauge. The are almost all red or green. His response to a question that suddenly becomes accusatory is perfectly natural and certainly not evidence, legally or otherwise of guilt.

Imagine you go to help the police (despite your opinion you should never help the police) and suddenly they change tone to accusing you of the crime. How do you think you'd react? Do you think you'd react exactly like their assumption of how an innocent person should react?

I have no idea if the guy is guilty. Neither do the police, prosecutors, judge or jury based on this evidence.

You may have nothing to hide, but how do you know that your friends and family don't? What would you do if someone got you to believe that associating yourself with them would bring them under scrutiny?

that's the point, and Alex deserves a medal for explaining it. EVERYONE has everything to hide now.

I think that people respond to "I have nothing to hide" too literally. I don't think that most people who say that are literally saying, "I've led a blameless life." I think the sentiment is more what I'd call "security through banality." It's, "yes, I've done a few bad things here and there, but no more than anyone else, and I don't think that the government is any more likely to single me out for negative attention than I think I'll be struck by lightning."

That sentiment is going to be increasingly wrong, but it's wrong because automated tools allow the government to harass increasingly large numbers of people for petty reasons, not because the person is unaware that they've committed banal crimes.

That's exactly right, people don't think they are blameless or innocent of breaking any regulations ever, they think there's no reason anyone should come after them. Which then circles around to where people make sure there's a reason no one will bother coming after them. So an intensely regulatory and criminalized state means a strong dampening of political and cultural advocacy and interaction. You can't keep your nose clean, so instead keep your head down.

Don't care too much for the examples in the original post (as someone who lives in the middle of huge swaths of public land, people coming out here know there are rules -- when they choose not to know what those rules are, it's not normally a highly innocent act). But the overall point is right. There are tons of laws on the books now that are designed essentially to give law enforcers discretion to hold or prosecute people they want held or prosecuted. The "criminal" is determined before the broken law. As an example, just heard someone tell me the other day about deer rules -- if your dog chases a deer off his property and down the road, you can be prosecuted. Of course, the law enforcer explained, in most cases this would not draw action. But of course, if you were one of those troublemakers in the neighborhood and *then* your dog chased a deer. . . . .

I think you make a good point, but I think the issue is worse than what you've stated. Even if you literally believe you have nothing to hide, you are probably wrong. There are so many laws and regulations on the book that it's impossible to not break the law.

Furthermore, even if you "ask" and get an answer from one agency it doesn't mean a second agency won't declare the first agency's answer incorrect and hold you responsible.

Say .... if you were a medical marijuana user and your friends and family feared association with you for the perceived negative impacts it could have on their career and their own social standing?

American justice will remain an oxymoron in my books until this attack on poor and handicapped people comes to an end.

I agree with Alex's core point but take that Bobby Unser snowmobile anecdote with a pinch of salt.

If I were snowmobiling off-trail where I'm not allowed to, and then got caught, "I got lost in a snowstorm officer!" is probably the natural excuse to use.

Yeah, but if you were snowmobiling where you knew weren't allowed, and you had to ditch your snowmobile, would you then go ask the *cops* to help you find it?

Or, he actually got lost and didn't do that much wrong either way but now has an entry on his record that says something like "violated Federal law by driving on protected lands."

In other words, an offense that deserves something between $0 and $75 fine looks on the record like something that would likely keep a black guy, if they drove snow mobiles, from ever obtaining formal employment.

Andrew' nails it. A criminal record is a very big deal.

Yup. Weirdly, much of federal law classifies minor crimes that would be infractions or "civil citations" in other jurisdictions as misdemeanors. For example, being on National Park Service property outside of the posted operating hours is a misdemeanor, whereas it's almost always an infraction or civil citation in local parks.

Indeed. Right on the nail. It's disgusting. You guys need to change this kind of BS.

Actually that's a little known aspect of the don't talk to the police ever idiom: don't call the police ever (and check if 911 always includes the police in your local) no matter how innocent you are, except to report third party crimes anonymous from a payphone. Many an innocent people have spent a night or dozens of years in jail as a result; I can speak from personal experience on that one.

This situation is a problem, right?

I also agree with the larger point, but do not find the examples at all compelling. I live in Utah, and it is very common for locals (who know better) to regularly and deliberately operate their snowmobiles ( and ATVs in the summer) in areas closed to motorized travel, including in wilderness areas. The common excuse in the very unlikely event that any enforcement takes place is "I didn't know.". Grave robbing and other artifact collecting, for fun and profit, is also common, again by people who know darn well what they a doing is wrong.

As alluded to above, these activities are no different than me parking my car in the middle of the national mall (gee officer, I did not see any signs saying do not park here) and then going into one of those nice public museums and picking up some souvenirs from all that neat stuff lying around in display cases.

That's why the mens rea should be negligence for these regulatory offenses, and the penalty should be a misdemeanor at most. Solves both problems.

The snowmobile offence was indeed a misdemeanor it says.

And then there is the criminalization of dog shit

Don't forget to point out ignorance of the law IS a valid defense if you are a government official.

And being a high ranking government official is often a valid defense in of itself (or at least guarantee against prosecution).

Is judicial equality not a foundational principle of justice?

Until criminal activity by movers and shakers is established as an entirely possible endeavour in the US, with full protection for whistle blowers, etc, yet another foundational principle of justice is hardly to be found in the great land many of you call home.

Ever wonder why so many people laugh a sarcastic laugh out of pity for your ignorance when American officials stand up and start to speak to the world about justice?

I split on the examples. Getting lost is getting lost, but digging stuff up in a national forest? Who wouldn't know that they are about preservation? (And that without preservation they'd rapidly become trashed trailer parks.)

I read a recent story about a man in Portland who ended up in bureucratic hell for removing two dead trees from in front of his property without a permit.

Petty power is the most abused power.

I think it has to do with the ratio of perceived power between the person wielding the power, and the person it is being wielded against. I would guess that poor people are more likely to get arrested for minor infractions than rich people. I've often heard that small businesses are far more likely to be harassed for minor regulatory violations than big ones. At some level, there's a psychological thing going one where the person with the power knows who is or isn't going to hiring a lawyer or asking for his badge number and complaining to their representative. Plus there's a pressure to up the numbers, so when looking to find things to cite people for, they are going to be predisposed to look for "easy" targets.

OT, but that exact same psychological thing is why it's common to hear people express irrational contempt for e.g. cyclists (physically smaller road users), but why you seldom hear the same sort of irrational contempt for road users with large vehicles like trucks. Primitive apes we are.

The tree inspector in my small hometown is the most powerful government official.

The reality is that you need laws preventing digging and driving in conservation areas. What I am not so sure is about giving criminal records for these kind of violations, as someone commented above this is a serious issue.. I'd rather serve 30 days in jail than having a record that will prevent me from getting hired from many jobs.,

So if we had some sort of "administrative" fines to deal with most cases and reserve the criminal charges for wholesale grave robbers and poacher when criminal intent can be proved.

I don't feel like reading the details of these cases, but do you know how much federal land there is?

For example, there aren't really laws preventing these things, only laws requiring permits. What do permits do? What good do arrowheads do underground? I'm not convinced we need the laws. But the point for today is what is the equilibrium of total surveillance and total government impunity and discretion? It's actually a tad reassuring in one sense that a famous white guy got a ticket...not much but a little in one sense. But it also bodes for what could happen. All the citizens are criminals and all the connected people somehow magically skate.

I can definitely see the rationale behind not wanting people disturbing archeological sites.
But it seems to me to be taking it a bit far to be banning anyone from looking for any artifact anywhere on any federally-owned land.

Fans of the national park system make a big deal about how the land is "public", free for anyone to explore, unlike the evils of what they see as a "privatized" park system. The argument is that "public" land is land that anyone is free to use. But if the federal government is going to ban you from doing something as ordinary as taking your kids out to look for some arrowheads, how public is it? You're not free to just enjoy the land as if it was your own. The federal government is really acting as if it was a private landowner, banning people from violating it's property rights. That's the opposite of what the advocates of the public park system claim is the virtue of it being public. So now you get turned around in a debate about how this stuff belongs to the "public" as represented by the state, which is elected, so that in some round-about way, you voted for the policies that are banning you from using the land. As if anyone casts a once-in-four-year vote based this issue.

It's not possible to do the kind of relic-hunting you're talking about without destroying the archaeological record for folks trying to do real science. Even public land has to be allocated according to priorities. The folks doing real historical work definitely should have priority over relic-hunting by amateurs. If you want to find arrowheads with your kids, do it on land you own.

What-ifs and just-so stories.

More likely it was just some guy on a small portion of the gazillions of miles of Federal land completely going to waste.

This has actually been a war lots of people have been fighting in the background for decades. And there are more than two sides. Take, for example, the "Wilderness Area" advocates (no roads, almost de facto no human entry) vs. the hikers vs. the motorized recreationalists vs. the hunters. . . . it goes on and on.

Public lands (both state and federal) are subject to such a complex diversity of regulations it's amazing. Some places you can snowmobile, others only snowshoe; some places you can dig, within reason, others you can dig with a permit, others you can't move a pine cone; some places you can shoot animals, some you can shoot targets, some you can't shoot at all, some you can't carry a gun even with a concealed carry permit. The problem with public land is not that it's all heavily restricted in usage (although much of it is), it's that it's very difficult to figure out what the restrictions are for any one parcel. Regulatory agencies often are staffed with folks who'd just has soon not bother filling you in (although sometimes you get a gem that will give you the full scoop). Collecting firewood is a great example, you can collect from the forest but you need a permit. You have to go to specific places to get the permit, and specific places to collect the wood. The rangers where you get the permit sometimes are unfamiliar with the land you collect from and can't give you anything but a poorly copied map to direct you that they can't read themselves. But if you collect outside of designated areas, it's on you, because they gave you a map. If you collect from within the area but get the wrong wood (aspen instead of pine, something with a birds nest in it, something cut down by the commercial loggers with their own permits) it's on you. Byzantine.

Once was cited in a National Forest for camping and having a campfire where neither were allowed. There was a well-established fire pit with nicely arranged rocks.

If you're out west, you can't spit without some of it landing on federal land. Of course, on a lot of it, you're allowed to camp and have fires, etc. It's just if it happens to be protected land that you get in trouble.

Anywhere outside of their home in the west, east north or south, the vast majority of people can't spit without some of it landing on land or property not their own and it would trespassing or some other offense to camp or have fire or dig for arrowheads or gold.

And only the Federal government would criminalize you for doing something pretty harmless on the land they are working hard to make sure stays totally useless.

Andrew, I see your point, but many people do not share your belief that the entire surface of the globe is for human consumption only.

There are other creatures out there, and myself and milloin (billions?) of others agree that we need to set aside land so the rest of those living beings out there can have a place to call home, i.e. habitat.

If you want to call that useless land, then sign me up for the "keep some of the land useless, please" movement if you feel that canvassing for Green politicians is not enough.

Nathan W, I possibly agree with you, but I need some reason why keeping land unused by humans, purely for animals, requires the expenditure of public resources. This seems like something that private people who want to save some land for non-human use can do. It seems like there are various pieces of land owned by Conservation groups: shouldn't that be the model, rather than public holding of land that the public will not be allowed to use?

I think, one pragmatic solution is a more nuanced criminal record search system: e.g. a two tier system perhaps, where more serious crimes like homicide or rape are publicly searchable; but for lesser crimes the record is only accessible to judges (to allow pattern detection).

For most lesser crimes, the utility in having public access to your offences is limited and probably counterproductive to social good.

And then there's cases like this:

The guy who runs a wilderness camp being told his cabins aren't up to snuff because he made them with wood he milled himself. Also that he has to install toilets in them. (This is supposed to be a primitive camping experience).

Did any government officials "burn" over the forest fires and their bang-up job of preservation? I'm guessing, no.

To a large extent I'd say this is a symptom of our electoral structure: it's simply too easy to make laws, and the laws we make are not driven by an understanding of any real public interest position -- though I suspect a number of representatives think they do. The representatives all represent a minority view and the real public interest policy is not some average of the competing minority view preferred alternative.

Perhaps it would have been more appropriate for Unser to have been convicted of crimnal recklessness. Had he not carelessly been out in the storm he wouldn't have wandered onto protected land.

For that matter, he probably failed to get his Federal travel permit in advance, nor did he likely file a travel plan or pre-trip vehicle check.

Worse, he got lost without a getting-lost permit, and was not even carrying a passport. Nor did he purchase carbon offset vouchers for his Gaia-raping phallic snowmobile. He dared leave his home without DIE PAPIERE. YOUR PAPERS PLEASE, CITIZEN.

Say you wake up and email a friend some advice after their loved passes away because you just had to open an estate for your deceased parent. Then you drive to work an average of 5 miles over the speed limit. Then you email your poker buddies about the poker game tonight. Then your co-worker emails you that he has the money he owes you and thanks you for coming to his house to help him move and hook up his wireless (the money is actually for a loan for lunch money from the other day, but the email reads as if he is paying you for work). Then your neighbor emails your daughter that they need her to babysit tonight and they will pay her $12 an hour because it is late notice.

A government wanting to put pressure on you could charge you with multiple speeding tickets for every day you drove to work for like the last three years. They could charge you and your daughter for not reporting or paying tax on taxable income. Maybe you could be charged for practicing law without a license, and perhaps for some sort of gambling law violation. Imagine if they catch you on video gently bumping someone's car in the grocery store parking lot and driving away without leaving a note. Unbeknownst to you there was a kid sitting in the back of the SUV you bumped playing his gameboy. He didn't feel the impact, but it is still a hit and run of an occupied car. That's a felony. The worst case scenario is scary. If you are a journalist about to report on a big story, or an aspiring political candidate, you better hope you never drove over the speed limit or sent an email.
"you are still 86 times more likely to be killed by a cop than by a designated "terrorist.""

That's all, carry on...

And THE PRESIDENT is a bald-faced liar.

That's all, as you were...have a nice day.

Name one PRESIDENT that wasn't a bald-faced liar

I can't think of any that lied like Obama.

Tricky Dick's lies were harmless by comparison and Bill Clinton's are a punch line. This guy is horrific.

Yawn...mood affiliation and ODS.
W and the de facto president during his terms (Cheney) had some doozies too. Reagan had a few.
They all do it. You're just now bothered by politicians being politicians? "Horrific'...ease up, Ace.

Not only are they spying on everyone (likely) he's lying his ass off to the people and all you can say is this is equivalent to all the other lies presidents tell and/or I'm just pissed at his stupid failure of a healthcare abortion.

Clown move, bro.

And the "data minimization" rules specifically exempt evidence of a crime:

"Any inadvertently acquired communication of or concerning a U.S. person must be promptly destroyed if it is neither relevant to the authorized purpose nor evidence of a crime..."

"The dissemination of any information about U.S. persons is expressly prohibited unless it ... is evidence of a crime..."

There are an awful lot of Federal crimes.

What is the definition of "evidence of a crime"?

Snowmobiling isn't a crime. Snomobiliing certain places is made into a crime. Thus, there is really no such thing as "evidence" of a crime. I can even go pull a trigger today. If I do it at a shooting range there is no crime. Or maybe they'll want to show that I was a member of a shooting range.

And I thought they didn't look at content? So, how would they know anyway?

No, they are going to vacuum up anything and everything just in case some crime can be "proven" at any point.

The broad scope of the court orders, and the nature of the procedures set out in the documents, appear to clash with assurances from President Obama and senior intelligence officials that the NSA could not access Americans' call or email information without warrants.

At a minimum, this makes President Obama's recent public statements look highly misleading, if not outright lies. Says Drum, after parsing the minimization procedure document, "The minimization procedures are fairly strict, but they do allow retention and dissemination of domestic data -- without a warrant -- under quite a few circumstances.

And judging from what has happened so far, what do you suppose would be the consequences, if it were to turn out that they weren't following those minimization procedures? Based on past experience, I'd say the only sensible prediction is that nobody would face any consequences at all for that, except that whoever leaked the fact that the minimization procedures weren't being followed would be prosecuted for leaking classified data and would have their life wrecked.

Which is another way of saying that those data minimization procedures are no real protection at all.

Legal systems - as any other, especially state systems - have a tendency towards malignant growth. You need a shock event that triggers a total "re-engineering" or "system rebuild". Germany had that in the breakdown after WW II so a modern constitution was introduced. Hence no squabbeling about a "right to bear arms" (introduced in totally different circumstances). Also there was a moment of freshness in the seventies in whoch the entire criminal code was cleaned up, simplified and revised. No more criminal offenses of "public nuisance" and "breach of the public peace" - the hallmark of states that have basically no real rule of law.

You need the system revamp, it's that simple. Worked great for Germany (but has nothing to do specifically with Germany - is just cooincidental). I honestly shudder when I hear about the US situation...It's so unnecessary.

Legal systems – as any other, especially state systems – have a tendency towards malignant growth. You need a shock event that triggers a total “re-engineering” or “system rebuild”.

That seems like a good point.

Hence no squabbeling about a “right to bear arms”

Here you are missing the point. The 2nd Amendment was emplaced specifically due to problems from the second to last shock event. It's a specific limit on the power of government.

Germany is a rather odd example here, considering that both civil and criminal code are still based on 19th law. Sure, there has been a good deal of reform in criminal law, but that's not exactly what I'd call a clean break. Significantly re-writing the criminal code is easier in a Roman law type system, though, because you're not messing up centuries of case law.
And whether a constitution is old or new matters rather little. The 2nd amendment is as important as it is because many Americans want it that way. If gun owners were a 10% fringe group, it'd be easy to regulate guns heavily even under current interpretations of the constitution and a different SCOTUS (in this alternate reality) could entirely re-interpret what the law means (oops, we decided to read this as only applying to well regulated militas after all).

In Germany it is possible to be arrested for membership in forbidden political parties, or for asking questions about the Holocaust in a public place.

I think I will take my models on "revamp" from societies that don't jail quite so many political prisoners, thank you.

To address the main point:

The solution is to repeal the over-reaching laws not to hide what we are doing so only the unlucky get prosecuted for things that should not be crimes in the first place.

I like this summary. Issue is just that complex, legacy systems are only changed (i.e. the over-reaching laws repealed) when there is great momentum or internal or external (positive) shock. The 9/11 schock obviously misfired in the opposite direction. I fear for the US, there is no hope to change this situation, the cancer will stay in the body indefinitely and continue to grow. It takes too much will to cut it back, which society can't muster or organise.

Which is why SCOTUS should be taking the lead on striking the crap down in the name of defending individual liberty.

Recognize the distinction between **Law** and **Legislation**.

Consider two forms of social order: **observed** order and **desired** order.

Laws are a description (in some circumstances a definition) of **observed** order.

Rules, regulations (legislation) are descriptions of **desired** order.

There is a clear distinction in what is required to preserve **observed** order from that which is required to attain **desired** order.

What are most overlooked are the differences in the formation of the latter from the formation of the former.

When the average person at which a law is directed either doesn't know it exists or can't understand it if they know where to find it, then the rule has been seriously undermined.

Legal speed limits is my favorite example of casual law breaking. It's almost a criminal conspiracy , we all do it (however little) all the time, unless there is a police car around, and even they frequently go over it.

Part of the reason I have zero respect for police. Actually I'm even fine with them speeding IF their buddies would give them tickets.

Don't worry. I'm sure most know that the answer to this type of abuse is... more regulation and more, but "effective" government, whatever that might be. More legislation is surely the answer to reducing the number of crimes the ordinary citizens' break. Also, that you say you've broken the "law", but done nothing wrong reminds me of this, which clarifies the difference between law and legislation and its affect on liberty.

Another aphorism:

The Rule of Law is a substitute for force.

To the extent that it fails as a substitute it becomes an instrument of force.

you can have freedom from surveillance or open borders, but not both.

Would make sense if it weren't the other way around. The over-hyping of terrorism is the excuse government agencies have used to get their dream gig. Did any terrorism happen because of "open borders"?

Weren't the 9/11 terrorists here on expired student visas? That's not exactly open borders, but it does suggest that being pretty choosy about whom we let into the country could have headed off that particular attack.

But that would be "racial profiling," which is not "politically correct." So instead we get airport security kabuki theater, in which octogenarian Lutheran grandmothers and two-year-olds get subjected to "random" (ha ha ha) body cavity searches and angry bearded young Arab men wearing T-shirts with Osama's picture on them have the run of the place and no one dares say "boo" to them.

Political correctness is a societal suicide pact. I wonder whether they had a linguistic fad of refusing to call Hun barbarians what they were in Rome in the Fifth Century.

John McTiernan, director of the Die Hard movies, Predator and The Hunt for Red October is serving a year in a jail for lying to an FBI agent over the phone (The agent called him). Happened to be one of the last things Michael Hastings wrote about.

Ha! It's for wiretapping. You can't make this shit up!

Maybe Hastings learned too much about the underworld of Hollywood during that investigation and was rewarded with a severed brake line.

I know nothing. McTiernan however appears to be a victim of the white version of resisting arrest, lying to an FBI agent.

Never talk to the cops...until they make it a crime to never talk to the cops...

Oh, that already happened


1996 The Right To Remain Silent

Coincidence? I think not!!!

There's another interesting point here: we have a lot of laws which were written in times when they mostly couldn't be enforced. And so those laws didn't seem so onerous--someone passed a feel-good law about something that would never lead anyone to be arrested, so who cares if the law would be intrusive if anyone could enforce it? But improved technology makes it easier to enforce those laws. One result can be a legal version of "working to rule," where anyone can be endlessly harassed for failing to dot every i and cross every t. Another result can be laws that have been on the books forever and rarely enforced, suddenly being enforced widely because now it's practical.

Mens rea is not a requirement? Who forced them to do any of these things?

Someone doesn't know what mens rea is.

"Due Process" is a requirement too. Ha, ha, ha. I guess the joke is on us.

Rather than pay a $75, Unser went to trial in federal court, and when he lost and was sentenced to pay $75, he appealed. The Tenth Circuit opinion affirming the conviction is a pretty good read.

That's an awful lots of words to say, "We don't believe him."

What all that discussion of prosecutors exercising discretion comes down to is this: we live increasingly under what is a government of men, not a government of laws.

Since "ignorance of the law is no excuse" in America, do all students learn what the laws are in school? Otherwise how are ordinary folks suppose to know what are all the millions of laws are that they might be breaking? (This occurred to me when I was a high school student long ago and a city cop told me I was breaking some local ordinance; My thought was like, why didn't someone teach us what these ordinances were rather than how important it is to do what Uncle Sam says, because he knows what's best for us (it was a while ago, I gather not so many people believe that now, but evidently, they still don't know what laws they might be breaking. Not that I would ever break one, in case the NSA or PRISM is listening).

Thanks a lot folks. Thanks a hell of a lot. You're a bunch of winners. You elect governments, repeatedly, at all levels of government, who continue to push this type of nonsense to its limits.

Then, you try to export your system to the rest of the world on the pain of various sanctions, military interventions, etc.

Ever wonder why a lot of people hate Americans? It is not enough to terrorize and criminalize common people in your own country, you think it is your right, no, obligation, to force other countries to do this same.

Land of the free my ass. And forget about brave, because who's got the balls to stand up and call BS a million times over when the time comes.

Prove me wrong, and keep rocking the boat harder until things change.

Guess you gotta take the bad with the good, leaches.

Find an honest person who shares your ideals. Encourage them to run for Federal office. Do not re-elect them. Find another honest person and send THEM to Washington.

Until the problems are solved, re-elect no one. Ever.

In other words, make sure the only people who know how to write laws are the prison industry, and military contractors who need to sell weapon systems to police departments, because those elected officials would not declare war.

What is "Federal land" is this the people's common land, or land that has been appropriated by the state for the states use?

These types of injustices are exactly why you have a right to a jury trial. If you sit on a jury, weigh the justness of the law to the particular facts of that one case. You are not judging the law. You are judging whether the facts support rendering justice with a conviction. That's the check against government overreach you are there to provide. Quit letting the judges instructions stifle the function of the jury-justice.

Tough on crime and law and order hard time conservative politics demands that juries do exactly as the state dictates because we can't have no bleeding heart liberals nullifying the will of the hard hearted conservatives, and any bleeding heart judge will be impeached if he refuses to impose the minimum sentence dictated by the state in sentencing guideline.

Justice is blind and stupid, more like a vending machine than a human.

... Have you ever thrown out some junk mail that came to your house but was addressed to someone else? That’s a violation of federal law punishable by up to 5 years in prison.

It is doubtful that this is actually a crime. See for example US v. Coleman which states:

At oral argument, there was also discussion of whether a person who receives letters sent to his home address, but carrying the name of someone else (as if that person lived at that address), and who 88*88 gets tired of sending those letters back to the post office and, as a result, throws the letters away can be held to have violated § 1708. That case is not before us. In any event, we reject the suggestion that an unintended recipient of misaddressed mail could be held criminally liable under any paragraph of § 1708 if the recipient acted without criminal intent sufficient to establish that he or she kept possession of the mail with a bad purpose. Criminal liability should not attach to a person merely because they know the mail was not meant for them and they kept it or disposed of it nonetheless. ...

Dear friend, have you ever heard about the 'McDonaldisation of societieS'?
Well, I did, contrary I'm neither for the American/Russian/Asian policies, nor for the European ones. But in my well-educated and well experienced opinion too, I think this mixture of primitivism and badly experienced modernism and globalized/or not idiocy and perverted hormones- whatever you may call them or not- and low education too/declining education for the entire world, are the results of democracy, Communism=SOCIALISM and All other social and political developments in the world....All in all, both in Romania which is my native and residence country too, and in the U.S., there are so many idiot regulations, only because there are only very few honestly-well-cultured and experienced-well educated Academics and law makers, in the policy first...the rest from them, they are illiterate like the majority from the civilians, are. This is the first reason for I hate all the policies today, starting with the conservative-socialist-communist-democratic ones...cheers!

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