Wednesday, February 21, 2018

Welcome to the Potential Crime Division...

What is the purpose of a law?

 On its surface, seems pretty simple question, but think about it for a bit...

Most people might say something like “To prevent crime.” And most people would be dead wrong.

Let me put this as simply as possible:


Oh, sure, I know there are lawmakers out there who think what they're doing will prevent crimes, but that couldn't be further from the truth.  “But Mark,” you say, “we have all sorts of laws meant to prevent crime! For a simple example, we have speed limits on our roads to keep people from speeding.”

Seriously? A law on a books and a sign on the road keeps people from speeding? Have you been out on any roads, lately? No, it is the threat of sanctions from the state or local government (in the way of fines and points) that deters people from speeding. There isn't a speeding law on the books that can prevent a driver from exceeding the posted speed limit at any time or location of his choosing.

What if a police officer sees you driving down the road while singing. Or sees that you have only one hand on the wheel, with the other hand resting on the window frame.   Or thinks that the speed you are going is not safe for that particular road (in spite of being exactly at the posted limit).  And then decides to ticket you for poor driving practices. Of course, you would take that to traffic court, and get it dismissed because there are no laws on the books prohibiting those practices.

Thus, laws do not serve to prevent crime, but merely provide the framework for a government to legally sanction a person for a behavior deemed harmful to society. More importantly, with or without the law, a person can act in a certain way, but only with the law can he be sanctioned.  This basic principle protects us from arbitrary punishment by our government.

Again (this is important): Laws ONLY serve to provide a framework for a government to legally sanction someone who has behaved in a way society has deemed to be harmful.  Laws cannot eliminate that behavior.

So let's take this one step further. Let's say in an effort to prevent speeding, we pass a law prohibiting ownership of cars with engines over 350 horsepower starting next week. Cars like the Dodge Viper, with a 650 HP engine and a top speed of over 200 MPH, is clearly a car capable of violating all known posted speed limits. And at those speeds, one could cause great harm to a large number of people.

Owning such a car that you legally bought and owned last week would suddenly give the government legal framework on which to levy sanctions against you next week. But how is ownership of a particular car – even a powerful car like the Viper – harmful to society? Society is only put in harm's way if the driver behaves in a manner that is dangerous to other drivers.

Punishment for Potential Crimes

To me this is an abominable abuse of the purpose of a law – to penalize law-abiding citizens for what someone else MIGHT do with a particular possession. This is worse than punishment by the Pre-Crime division in “Minority Report” (see – this is punishment for Potential Crime. To turn a law-abiding citizen into a criminal by outlawing a particular item simply by the stroke of a pen is a horrible thought – it makes me cringe to even think about it.

And consider this: Just because a Corvette can speed really fast doesn't mean that people NEED a Corvette to speed really fast. Although cars like the Corvette, Dodge Viper, etc., are capable of really high speeds, most speeding is done in cars that most of us drive every day – from compacts, to station wagons, to mini-vans, to SUVs. And speeding in these “every day” cars is just as deadly to those around you.

By now, you probably know where I'm going with this, so I won't belabor the point.

So, consider the following issues:

How is such a law enforceable? How DOES the government decide who has a prohibited object? The only way to actually enforce these laws is through house-to-house searches for banned items (a clear violation of the 4th Amendment) or by the owner of such objects to voluntarily give them up and face penalties (a clear violation of the 5th Amendment).

The law-abiding owners of said objects will probably turn them over (or not, thus becoming criminals). However, those intent on doing harm most certainly NOT turn them over. Thus, the ban is effective only on those who wouldn't misuse them in the first place.

How do you ban easily-fabricated items? While a car is fairly complex, it is still within the capabilities of a typical back-yard mechanic to modify a standard car into something far more powerful. A firearm is far less complex than a car – a modestly-equipped shop can easily fabricate the sorts of items that the subject of the current hue and cry going on in the media. These technologies are many decades old – even more than a century old. That genie is not going back into the bottle.

Most importantly, there's the slippery slope to consider. Not not in reference to expanding the scope of bans to include more cars (or more firearms), but to the idea that governments can make any arbitrary item or action illegal because someone has deemed it potentially harmful to society if misused. If the government can make a particular car or gun illegal out of “concern for the safety of society,” then what else can they ban? Home storage of more than 5 gallons of gasoline? Metal-working machines that can be used to fabricate other weapons? Fertilizer that can be used to manufacture bombs? Fireworks and pressure-cookers? The precedent such actions set worries me immensely.

Yes, there's a problem in the US. And it needs to be fixed. But it has to be done rationally, dispassionately, and logically.  Most of all, solutions have to address the root causes of the problem, not a symptom.  Highly-charged emotions only create bad laws that reduce the freedoms held by all of the citizenry.

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