Making Laws that Make Sense

[Cow Poke]

Carrik brought up a point in another thread that has had me thinking for the past hour and a half while driving....

Right, but that's the implementation part. A law is three-fold: what to do, how to do it, and how to make sure people comply. I'm asking if the third part actually affects the first part.

What really got me thinking about this was a report today that Eric Holder is contemplating (which means he's gonna do it ) changing the punishment of drug users who have been sentenced to long prison terms for possession drugs.

The case as explained by Judge Andrew Napolitano goes like this....

A person is arrested for a quantity of marijuana that is assumed to be more than for private consumption. Since the quantity exceeds whatever amount was set as "too much", it is ASSUMED that the marijuana is necessarily for sale, not for personal consumption, and is therefore proof that the individual is a drug DEALER as opposed to a drug user, and is automatically sentenced (upon conviction) to a much greater sentence than he would have received for drug use. (Rand Paul supports Holder on this)

That's beyond what Carrik stated, but I think is related.

So, what I've been thinking about is the fact that "the law of unintended consequences" has to be part of the equation in the making (or shaping) of laws.

[Jedidiah]

I think it goes against the current government mind set to make sensible laws.

[Carrikature]

I think the short answer is that we need to be willing to modify laws once we see they don't work as intended. That includes striking some of them from the books. We can try to avoid unintended consequences, but we can't avoid those which were unforeseen. I get the impression that 'unforeseen' is going to affect virtually every law with any real scope.

[Cow Poke]

I think the short answer is that we need to be willing to modify laws once we see they don't work as intended. That includes striking some of them from the books. We can try to avoid unintended consequences, but we can't avoid those which were unforeseen. I get the impression that 'unforeseen' is going to affect virtually every law with any real scope.

Can you differentiate "unintended consequences" from "unforeseen"?

[Truthseeker]

I am not sure I understand what the thread is about, but there's a much bigger problem in any case. The present government is not going to follow the law, especially the Constitution if that suits its own purposes, and will enforce laws whether it is good for the public or not.

[Cow Poke]

I am not sure I understand what the thread is about, but there's a much bigger problem in any case. The present government is not going to follow the law, especially the Constitution if that suits its own purposes, and will enforce laws whether it is good for the public or not.

Let's leave that for another thread, ok?

[Carrikature]

Can you differentiate "unintended consequences" from "unforeseen"?

Yes in a limited sense, but it's messy. Unintended can be theoretically prevented with enough due diligence and by limiting scope. It requires following through the impacts and looking honestly at the probable results. Even so, you're not going to eliminate all unintended consequences because some of them are also unforeseen. Unforeseen refers to a consequence that could not have been predicted even if all of the logical progression was followed through. When you add pressure to a system, it will tend to find another way out somehow. We can reasonably seek to eliminate that (or at least guide it), but we can't find all the holes.

With the current state of the U.S. legal system, wide-reaching laws are going to have unforeseeable consequences simply because the interactions are far too murky to ever be traced out properly. That was one of the major aspects of the ACA that, while heavily criticized, was also inevitable no matter how it was written. In that case, the interactions are literally in the millions. It was impossible to know how companies and individuals would respond, and we still don't know to a large extent.

As if this wasn't messy enough, you'd also have to consider the question, "unforeseen by whom?" There are a lot of players out there. Some of them get it right but are ignored. Others get it wrong and are followed.

Maybe I'm wrong, though. Maybe you can't differentiate the two in this way, but that we can look at 'preventable'. I don't think that's any cleaner.


I'm not sure if that's very clear or not, tbh.

[Carrikature]

In the spirit of wrapping up the other conversation, I wanted to clarify what I was getting at.

I think it fails on a lot of points, though criminal compliance isn't really at issue. If that was a real concern, what laws would we truly pass?

I know --- it SHOULD be, though --- and people with mental problems.

My point was that we make laws because we feel they contribute somehow to our well-being. When you don't feel it will contribute, this is why you are against certain laws. BUT, we know that there are people who have no intention of following laws where they can get away with it. We don't let that fact stop us from making the laws. That's what I meant by "criminal compliance isn't really at issue". In the three part description CP quoted above, criminal compliance is the third facet.

[Cow Poke]

Yes in a limited sense, but it's messy. Unintended can be theoretically prevented with enough due diligence and by limiting scope. It requires following through the impacts and looking honestly at the probable results. Even so, you're not going to eliminate all unintended consequences because some of them are also unforeseen. Unforeseen refers to a consequence that could not have been predicted even if all of the logical progression was followed through. When you add pressure to a system, it will tend to find another way out somehow. We can reasonably seek to eliminate that (or at least guide it), but we can't find all the holes.

With the current state of the U.S. legal system, wide-reaching laws are going to have unforeseeable consequences simply because the interactions are far too murky to ever be traced out properly. That was one of the major aspects of the ACA that, while heavily criticized, was also inevitable no matter how it was written. In that case, the interactions are literally in the millions. It was impossible to know how companies and individuals would respond, and we still don't know to a large extent.

As if this wasn't messy enough, you'd also have to consider the question, "unforeseen by whom?" There are a lot of players out there. Some of them get it right but are ignored. Others get it wrong and are followed.

Maybe I'm wrong, though. Maybe you can't differentiate the two in this way, but that we can look at 'preventable'. I don't think that's any cleaner.


I'm not sure if that's very clear or not, tbh.

No, that actually makes sense, and is what I was guessing you meant. It's like....

"Reports that say that something hasn't happened are always interesting to me, because as we know, there are known knowns; there are things we know that we know. There are known unknowns; that is to say, there are things that we now know we don't know. But there are also unknown unknowns – there are things we do not know we don't know."
—United States Secretary of Defense, Donald Rumsfeld

[phank]

Drug laws tend to fall into a special class of laws, namely laws against so-called "victimless crimes". When a drug transaction takes place, both the buyer and the seller are satisfied. Neither considers himself a victim. So who IS the victim? The usual rationale has been that in some ineffable way, society as a whole is affected negatively, similar to how public education benefits society as a whole. We don't want to be surrounded by drug addicts.

As the prohibition experiment showed, laws against crimes without victims are widely ignored and difficult to enforce. It's not like people are reporting these crimes, so the enforcement must be more indirect, using stings and informers.

The civil authorities at all levels of government have long recognized that the war on drugs is a failure of heroic proportions - it has enriched and entrenched organized crime, it has cost trillions of dollars, it has led to the highest percentage of imprisoned citizens of any nation in the history of the world, it has increased violence (both viciousness and frequency) in the US and in much of the world, it has increased crime rates generally, and finally it has NOT reduced the consumption of illegal drugs. Not even a little.

So why does the war on drugs continue? Because anyone who proposes to stop it, or even slow it down, LOOKS like they are advocating drug addiction! The intentions of the war have never changed, so the fact that the results have been catastrophically damaging and entirely useless, is just kind of too bad. We STILL don't want to live in a society full of addicts. Nor does it matter that where such drugs have been decriminalized, addiction is no higher than anywhere else (and the crime rate is lower). A politician either opposes or encourages addiction, never mind all the unintended consequences, if he's seen as encouraging addiction, he won't be re-elected. Even our drug-infested public would vote against him, because THEY don't want to live in a land of addicts either.

[Epoetker]

So why does the war on drugs continue?

Not the naive and provincial reasons you gave, certainly. Have you been failing to read your Sailer?

If you are a police chief, prosecutor, or politician, then you want to prevent crime, especially violent crime, and especially violent crimes like burglaries that will spill over into your wealthier, safer neighborhoods whose inhabitants can get you fired very quickly, but who also make excellent targets for theft, muggings, or aggravated robberies because, as with banks, that’s where the money is.

Or is it? Because burglary is risky, and burglars don’t get rich. But what if there were some alternative draw, some other – necessarily criminal – way of making vast sums of money – the stuff of a young thug’s dreams – and that particular way was demonstrably irrepressible no matter what you did, so it might as well be made useful.

What if, furthermore, it was glorified and celebrated endlessly by your young thugs' subculture? And what if the violence that emerged out of that traffic – of a thing the sale, possession, and consumption of which arguably needs to be prohibited anyway – was almost entirely geographically contained in areas with zero political clout and mostly between the thugs themselves?

Why, it would act as an ideal honeypot! Your thugs will all converge on conducting that particular species of crime, and you can easily arrest, prosecute, and imprison the worst of them and then incapacitate them for long-durations so that they can’t get up to any other (more politically destabilizing) kinds of criminal activity during their youthful years, which, again, you believe they are certain to do and which, really, can’t be prevented.

And this is how the drug war works. There are very, very few people who actually, consciously think like this, putting all the pieces together into one extremely tragic but coherent picture. But the glue that holds certain lasting social institutions together is often unconscious and buried beneath some protective psychological firewalls.

[Teallaura]

I'm not sure differentiating between 'unintended' and 'unforeseen' matters. In neither case was the effect intended to be codified into law - and in both the courts can rightly find that such effects are not part of the legislative intent and therefore not properly subject to enforcement. In the case of 'unforeseen' it's irrational to argue that it was intended even if the given legislature would have chosen to codify the effect had they thought of it - you can't intend what you can't foresee in this instance. In such cases, the courts should strike the effect and return it to the legislature to make it a deliberate matter, if they so wish.

Incidentally, an unintended effect doesn't necessarily negate an entire law.

[Darth Executor]

Not the naive and provincial reasons you gave, certainly. Have you been failing to read your Sailer?

It's nice to see Sailer and others finally getting around to promoting theories I've been promoting for years. People like phank think all those drug dealers and gangbangers will just integrate into society harmlessly rather than find other profitable criminal avenues. Or worse, they are so delusional that they think the current crop of drug dealers will become respectable businessmen instead of being completely displaced by other, existing actual businessmen who are skilled enough to compete outside of technically criminal industries.

[rogue06]

Carrik brought up a point in another thread that has had me thinking for the past hour and a half while driving....



What really got me thinking about this was a report today that Eric Holder is contemplating (which means he's gonna do it ) changing the punishment of drug users who have been sentenced to long prison terms for possession drugs.

The case as explained by Judge Andrew Napolitano goes like this....

A person is arrested for a quantity of marijuana that is assumed to be more than for private consumption. Since the quantity exceeds whatever amount was set as "too much", it is ASSUMED that the marijuana is necessarily for sale, not for personal consumption, and is therefore proof that the individual is a drug DEALER as opposed to a drug user, and is automatically sentenced (upon conviction) to a much greater sentence than he would have received for drug use. (Rand Paul supports Holder on this)

That's beyond what Carrik stated, but I think is related.

So, what I've been thinking about is the fact that "the law of unintended consequences" has to be part of the equation in the making (or shaping) of laws.

Wrt the example in question in some jurisdictions possessing more than a few grams of pot (enough for a couple of joints) was considered as having more than enough for private consumption. I had a friend (lost contact with him a few years ago) who smoked an ounce a week (would buy a quarter pound at the start of each month). He didn't like the idea of going out and buying some pot every other day. AFAIK he never sold any.

Obviously he isn't the norm but it does bring up the issue of what constitutes too much for personal consumption -- a couple of joints worth or a month's supply.

[rogue06]

It's nice to see Sailer and others finally getting around to promoting theories I've been promoting for years. People like phank think all those drug dealers and gangbangers will just integrate into society harmlessly rather than find other profitable criminal avenues. Or worse, they are so delusional that they think the current crop of drug dealers will become respectable businessmen instead of being completely displaced by other, existing actual businessmen who are skilled enough to compete outside of technically criminal industries.

I think it is fair to assume that criminals - especially hardened ones - will remain criminals. They will look for other illegal activities if the profit is taken out of the ones they now engage in. This was seen at the end of Prohibition as organized crime moved from distributing alcohol into other "lucrative" endeavors. But the end of Prohibition also brought about a dramatic drop in violent crime which is something that ought to be factored into the discussion.