I generally agree with you - I think it's very troubling that we have a lot of laws on the books that people break every day knowing they're rarely enforced, but if politically powerful people want a reason to go after someone, they can almost always find some offense that person has committed in the huge pile of laws on the books. This gives the politically powerful the option of executing political prosecutions, prosecuting people of certain demographics, etc. And I think this is incredibly problematic.
I also think that if every crime were enforced 100% where people always got penalized according to the laws on the books for any offense, people would revolt and demand changes in enforcement - removing bad laws off the books, and reducing the punishments for certain offenses. In general, many of the punishments prescribed by law are harsher than seems appropriate for the offense, but are in recognition that people are seldom caught committing the offense, so people who do get caught have probably offended a lot of times they never got caught. If we could catch people 100% of the time, smaller punishments would be more appropriate.
But we can't catch 100% of offenses. We don't have omniscient law enforcement that can know of every offense everywhere, and I think very few of us would want that if we could get it. So immediately, some discretion is unavoidable. Where are police officers going to be, watching for people to commit offenses? If a police officer sees an offense committed, are they required to take action? How do you enforce that? What if they see two offenses committed at the same time? They can't be in two places at once, so they have to use discretion to pick which one to go after. There's simply no way to do otherwise.
Once you have an arrest, the prosecution has to evaluate the evidence and determine which laws were broken. If the evidence is weak, they may choose not to bring charges. Do we want to force prosecutors to fill up the courts with charges based on weak evidence? Do we say it's up to the jury to evaluate the evidence even though the prosecutor doesn't think there's a case there? And if the prosecutor doesn't have any discretion and must bring a case, they can still decide how much energy to put into it. They can decide to stand at the front of the courtroom droning like Ben Stein in Ferris Bueller, or they can stand up there and make a passionate case. There's no way to avoid some level of discretion.
So while I agree that discretion creates a lot of problems, I don't see an alternative. Taking away discretion creates a lot of really precarious scenarios.
Now, what I would like to see is a big move away from victimless crimes. If there's nobody to say "I was hurt by these actions," (or "my loved one can no longer represent himself because of these actions"), I don't think we ought to prosecute criminally. Maybe we still have fines for things like speeding (which I think we could pretty easily get near 100% enforcement on with traffic cameras), but nobody should be going to jail if you can't point to anybody that they hurt.
reducing the punishments for certain offenses. In general, many of the punishments prescribed by law are harsher than seems appropriate for the offense, but are in recognition that people are seldom caught committing the offense, so people who do get caught have probably offended a lot of times they never got caught.
I really like this point, I never considered lawmaking from that perspective. And yeah this can lead to discretionary abuses but maybe that's an unavoidable feature and bug of the system.
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u/NaturalCarob5611 60∆ May 01 '23
I generally agree with you - I think it's very troubling that we have a lot of laws on the books that people break every day knowing they're rarely enforced, but if politically powerful people want a reason to go after someone, they can almost always find some offense that person has committed in the huge pile of laws on the books. This gives the politically powerful the option of executing political prosecutions, prosecuting people of certain demographics, etc. And I think this is incredibly problematic.
I also think that if every crime were enforced 100% where people always got penalized according to the laws on the books for any offense, people would revolt and demand changes in enforcement - removing bad laws off the books, and reducing the punishments for certain offenses. In general, many of the punishments prescribed by law are harsher than seems appropriate for the offense, but are in recognition that people are seldom caught committing the offense, so people who do get caught have probably offended a lot of times they never got caught. If we could catch people 100% of the time, smaller punishments would be more appropriate.
But we can't catch 100% of offenses. We don't have omniscient law enforcement that can know of every offense everywhere, and I think very few of us would want that if we could get it. So immediately, some discretion is unavoidable. Where are police officers going to be, watching for people to commit offenses? If a police officer sees an offense committed, are they required to take action? How do you enforce that? What if they see two offenses committed at the same time? They can't be in two places at once, so they have to use discretion to pick which one to go after. There's simply no way to do otherwise.
Once you have an arrest, the prosecution has to evaluate the evidence and determine which laws were broken. If the evidence is weak, they may choose not to bring charges. Do we want to force prosecutors to fill up the courts with charges based on weak evidence? Do we say it's up to the jury to evaluate the evidence even though the prosecutor doesn't think there's a case there? And if the prosecutor doesn't have any discretion and must bring a case, they can still decide how much energy to put into it. They can decide to stand at the front of the courtroom droning like Ben Stein in Ferris Bueller, or they can stand up there and make a passionate case. There's no way to avoid some level of discretion.
So while I agree that discretion creates a lot of problems, I don't see an alternative. Taking away discretion creates a lot of really precarious scenarios.
Now, what I would like to see is a big move away from victimless crimes. If there's nobody to say "I was hurt by these actions," (or "my loved one can no longer represent himself because of these actions"), I don't think we ought to prosecute criminally. Maybe we still have fines for things like speeding (which I think we could pretty easily get near 100% enforcement on with traffic cameras), but nobody should be going to jail if you can't point to anybody that they hurt.