Is it possible that we have allowed the Government to change in our minds what a law is depending on who is using that law?
Getting off on a technicality? How many time do we hear that an individual got off on a technicality when the Government violated the law? If you or I do that we are called lawbreakers and rightly so. When the Government does it they call it a rules violation.
Breaking the rules, violating policy and not following procedure. Why do we accept it when the Government uses these terms as a nice way of saying that they broke the law.
An illegal search is a violation of the law. Not a rules or policy violation. Yet we ourselves have been brainwashed into believing that it is a technicality if someone goes free because of it.
Very salient point, Michael.
Government entities will naturally give themselves a "pass". It comes with absolute power. Which is why it is so important to restrict the size and authority of government. What scares me is that there is a tipping point at which we will no longer be able to reign it in. We may already be passed that point.
Michael, though I agree with the sentiment, I think there are dimensions to this you might not be considering.
For one thing, not everything that is prohibited carries punishment in the form of fines or jail. An illegal search conducted
by LE, is typically sanctioned only by disallowing the use of evidence thus obtained.
Prosecutors of course have, and must have, discretion. They aren't going to call an illegal search breaking and entering and
theft at night and demand a 99 year sentence. That's just the way it is, and must be, or nothing much would work well.
Hopyard I agree with your post and the reasoning behind it, My problem is with people who believe do not realize that those loopholes criminals get off on are actually cases where the Government has in most cases violated a law. We are becoming accustomed to the idea that only citizens break laws. That when the Government violates those same laws we refuse to admit it. We say that they broke policy or violated some silly rule. When in fact most of those rules and policies are really laws. By refusing to acknowledge this fact the Government is setting itself as being above the law.
I do not fault the Government for attempting this. I fault us for accepting it.
We call it a technicality because that's what it is. An officer believe he has probable cause for a search following a murder. During that search he finds the murder weapon, bloody clothes, and a letter addressed to a friend explaining that the suspect is going to be away for a while until things cool down after the crime. So this evidence is used to make an arrest. Charges are filed. The judge decides that there wasn't enough probable cause to conduct the search and thus none of the evidence can be used. Without this evidence it isn't possible to get a conviction. So we have someone that committed murder that gets off due to the technicality of PC for a search.
It doesn't make the murderer any less guilty, it just ensures that he will never have to answer for his crime due to an honest mistake on the part of the officer. (This also explains why warrants are usually used even in cases where PC would be enough. Why take the risk? let them have time to destroy evidence so we can be sure that what evidence we do have is preserved and allowed in court.)
Same officer knows that he does not have probable cause for a search and proceeds anyway. Thinking that he will not get caught or the State will back his decision. Still a technicality? No law was broken?
Originally Posted by Echo_Four
Originally Posted by Hopyard
Hopyard, I really have to disagree with you on this. First of all, sanction does not mean to punish, it means to approve of or support.
While it's true that not all prohibited actions carry a punishment, they are still prohibited actions and if they are prohibited by the Constitution (as opposed to mere policy) they are against the law. If there is no defined punishment for breaking the law that is a failure of the government to institute a punishment needed to implement that law, or just an unwillingness to enforce the law. Perhaps it is should not surprise us that the justice system would not design a punishment for itself.
While prosecutors might not call an illegal search breaking and entering (and you correct in saying "That's the way it is") I can not see any good reason why an illegal search should not be called what it, in fact, is. The operative word here being illegal.
Finally, to assert that it "...must be, or nothing much would work well." is merely a justification for why LE should be above the law.
It seems this lack of justice must be addressed in the civil courts as it was with another civil rights violation: Segregation.
I think you are confusing two different issues. As you point out, criminal get off on technicalities all the time, and we know
Originally Posted by mlr1m
that these "technicalities" frequently are the errors made by officialdom. And such errors do not presently typically
carry any fine or punishment other than the loss of a case.
We do however punish wrong doing of all sort by officials. We punish official corruption when it is discovered. We punish
brutality when it is proven to a jury.
Should we punish violations of the 4th or the 5th beyond invalidating illegally collected evidence? I think so, in some
instances where a judge feels a particularly malicious and deliberate flouting was involved.
There are those that will do it, and figure the worse case is..... they will get slapped on the wrist or evidence won't be allowed, but they play the odds that it might be. They know they are violating search, seizure, or other laws and/or policies. He has a point, if there are never any "peronsal" penalties or sanctions, what stops anyone from doing it ?
For the most part I disagree with the idea that criminals get off on technicalities. Unless we call the Government nor following the law a technicality. I'm not implying that there should not be some discretion when enforcing the law. I am only saying that calling it a technicality is dishonest. It is not a technicality if I am not convicted after being illegally pulled over and searched on the side of the road. It is not a technicality when the government cannot prove the cash I have in my trunk is not drug money.
The more we accept that rights are but mere technicalities the easier and more willing we will be to give them up.
I think we agree there is a problem. I think we both agree that there should be additional laws providing for punishment
Originally Posted by Hoganbeg
of those who willfully violate rights and cause society to lose cases the prosecution should have won.
I think the word "sanction" may be used either way depending on context.
My understanding is that as a noun the word means a threatened penalty, or an imposed penalty for violations. The word has
an almost 180 degree opposite meaning when used as a verb. There is also a legal definition.
The problem goes much deeper than this...The "laws" that are being "broken" by those who enforce the laws... the laws, in many cases are written by those who have no authority to write them in the first place...
This occurs mostly at the federal and state level by bureaucracies and the bureaucrats who run them... they are executive laws... not legislative laws...
I think you are attempting to argue that Congress can't delegate rule or regulation making to the Executive Agencies. Like it or not, it has, it is lawful, and so the phrase "those who have no authority to write them in the first place," really doesn't apply.
Originally Posted by oakchas
And all such rules must comply with
existing law and our constitution. An Agency can't promulgate a regulation which violates
a law passed by Congress.
There are thoroughly well established processes for rule making by Executive Agencies at the Federal level and
in all states; that is, state legislatures have done the same. They don't get into the nitty gritty detail of everything.
We live in a practical world. I don't see how things would or could work otherwise.
Officers of the court, in the course of their duty, are immune to civil penalty for procedural violations. In such cases, I think that the defendant is usually made whole (compensated for losses). This way, the legal system doesn't grind to a halt if some cops aren't Perry Mason.
The problem is not semantics. And it isn't double standard. Maybe that's why they call a badge a "shield"?
The problem is with the endless resources of "professional" agents who twist the law to break innocents like the whale watcher captain who tried to cooperate with NOAA cops (yes, NOAA has cops).
The Drug War is bad strategy because the government (directly or by policy) violates way more rights to life, liberty, and property than it properly defends.
The bottom line is that the legitimate purpose of government is to protect rights (and to define or legally establish ownership, if and when necessary to adjudicate it). If it doesn't violate rights, then it isn't a crime. IMO, that is the vision of the founders.
As long a it doesn't violate a law passed by Congress...
Originally Posted by Hopyard
Giving unregulated authority to un-elected "tin gods" to write laws and regulations, to be enforced by an ever growing force of enforcement officers, whose salaries are paid by the citizenry, both those who are violators (caught) and those who are not (taxpayers). What a lovely "scheme" might not be Ponzi's, but a scheme, nevertheless.
All because our Congressmen would be inconvenienced if they had to do their real jobs rather than worry about their re-election, and schmoozing with the lobbyists who arrange to fill their war chests.
The system is far more complicated than the "matrix".