What is your perspective on a government permitting activities that are technically illegal?
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Hmm. I don't see the balance here: the conjugate would be the executive enforcing non-existant laws, and the legislative to be able to stop them. That isn't the case.
So clearly, the power balance is asymetric, and lies completely in favour of executive.
In the US this is supposed to be balanced by the judicial branch, which can decide if the executive is doing a good job of enforcing the laws or not. (Not that I think the US is a good example of a balanced government, given our current state…)
Some countries have more branches of government intended to help with this problem:
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This kind of thing can be considered a form of “checks and balances”. If one branch of the government passes a law and another branch enforces it, both branches have to agree for the law to function.
No, that isn't a balance, because in that situation only one branch is deciding what gets enforced
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A notable example is the approach to soft drugs in the Netherlands. Despite being illegal, the public prosecutor has chosen not to enforce the law. To the point that many if not most think they're legal.
This situation presents a complex issue to me: it involves a small group of individuals (the prosecutor's office) effectively deciding to disregard the broader democratic process and the will of the voters. When such things happen, I believe they should be rare, pragmatic and temporary.
What's your view on the matter?
I think there has to be a bit of judgment on the enforcement side. Like say you are underage drinking next to your house and you accidentally break your skateboard so you start yelling and you don’t see the cops on the corner. They come to make sure everyone/your roommates are and generally feel safe but don’t give you any tickets. They don’t care about the obvious intoxication or noise and just want to make sure people are safe. That’s the discretion I want in LE
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I think there has to be a bit of judgment on the enforcement side. Like say you are underage drinking next to your house and you accidentally break your skateboard so you start yelling and you don’t see the cops on the corner. They come to make sure everyone/your roommates are and generally feel safe but don’t give you any tickets. They don’t care about the obvious intoxication or noise and just want to make sure people are safe. That’s the discretion I want in LE
I see what you mean, on an individual officer level.
The question refers more to officially declared policy by the prosecutor: "we will no longer prosecute behaviour X, even though it's illegal"
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The 'selective enforcement' occurred because strict enforcement would be much more expensive than what anyone wanted -- yet a fanatical minority was able to play games in Congress to repeatedly block bipartisan deals for "comprehensive immigration reform" (under Bush, Obama, and Biden).
It's always confused me how USians refer to different congressional periods as happening "under" certain presidents as if they have any actual part to play in the legislative process itself. I live in a country where the head of government is the Prime Minister, whose equivalent would be the House Majority Leader, and actually has a lot to say about the legislative agenda.
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A notable example is the approach to soft drugs in the Netherlands. Despite being illegal, the public prosecutor has chosen not to enforce the law. To the point that many if not most think they're legal.
This situation presents a complex issue to me: it involves a small group of individuals (the prosecutor's office) effectively deciding to disregard the broader democratic process and the will of the voters. When such things happen, I believe they should be rare, pragmatic and temporary.
What's your view on the matter?
I’ve wanted to write a story about lawyers and prosecutorial discretion - I think a lot of it can be explored through fiction, to say nothing of the real world’s crazy case history.
Much as literalists may like the idea that “The law is the law”, and that it will always be enforced, it’s made up of humans who carry it out, and it’s by design that they each have their emotional flaws. The law as a machine would lose sight of its purpose as a means to improve society.
There’s another side to prosecutorial discretion where exclusion of consequences can provide favoritism to bad people, though, and that’s what gives me pause - but I don’t know how easy it would be for the law alone to remedy that, even by ending discretion.
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I see what you mean, on an individual officer level.
The question refers more to officially declared policy by the prosecutor: "we will no longer prosecute behaviour X, even though it's illegal"
Gotcha, when it’s congress saying no, I don’t think they should prosecute because that (should) represent what the people want. Although this is how I generally feel, the US congress is broken so with the current state I don’t feel very strongly here.
When it’s a federal law and a state passes something that says it’s ok, it should be ok in that state. Think abortion, pot, etc. I do think those should be legal everywhere though.
Defying executive orders is definitely ok. Especially with the god like powers the supreme court gave the president.
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I’ve wanted to write a story about lawyers and prosecutorial discretion - I think a lot of it can be explored through fiction, to say nothing of the real world’s crazy case history.
Much as literalists may like the idea that “The law is the law”, and that it will always be enforced, it’s made up of humans who carry it out, and it’s by design that they each have their emotional flaws. The law as a machine would lose sight of its purpose as a means to improve society.
There’s another side to prosecutorial discretion where exclusion of consequences can provide favoritism to bad people, though, and that’s what gives me pause - but I don’t know how easy it would be for the law alone to remedy that, even by ending discretion.
wrote last edited by [email protected]The law as a machine would lose sight of its purpose as a means to improve society.
That's a point of view I don't share, so would like to learn more about.
I believe that that's how people who work in the system think about it too. They always try to guess the perpetrator's motivation, and adjust the consequences as if that guess is correct. To me, it looks like a great benefit for those whom those in power can relate to easier: similar background, lingo, etc. And is horrible for those with a non-standard background or neurodiversity. As even when presented with the same facts, the latter receives a worse outcome.
