God I hate this judicial philosophy. If legislation was perfect we wouldn't need judges. Every gap in the legal code that some lawyers can concoct is not valid grounds for exploitation.
Yes it is, by definition. Advocate for better legislation, rather than expect lawyers to pinky-swear not to use whatever loopholes they find.
An analogy might be: "Every bug or unescaped input in my application is not valid grounds for attackers to pwn my server! How dare they!"
The attitude in your comment, that the law should be interpreted with perfect strictness and machine-like lack of concern for obvious blunders, is in my opinion really hurting the United States today.
I disagree. Code is also designed that way. The humble admission and responsible actions to secure against abuse are the same. The difference is in the specific interpretation timings. Code is a priori deterministic and law is a posteriori deterministic, with exceptions on both sides (code environment or human interpretation changes).
It delves into multiple possible stances regarding the nature of laws. I think Justice Thomas falls squarely into one of the explored stance.
PS: also, an extended version: https://legacy.earlham.edu/~peters/writing/cse.htm (that's the one I have)
We already have that, though, and "sufficienty written" is a very dangerous standard.
The easiest way to guard against "all" malicious input is write a vague law without clauses that demand mens reas, which means that regardless of whether or not you knowingly broke the law, by violating its provisions, you automatically did.
The leeway to "serve justice" also tends to be the leeway to condemn justice or to interpret law in ways it was never designed to account for.
The lawcomic, written by a lawyer, has a good section about the kind of overcriminalization you're discussing:
Most criminal laws have a mens rea component (strict liability is rare), but almost none of them have a requirement of knowing that the act was illegal. "Ignorance of the law is no excuse" is not limited to strict liability offenses.
I'd certainly argue there are plenty of vague, overbroad laws, regardless of the frequency of strict liability's usage.
I'd further argue infrequency actually increases the likelihood that otherwise innocent individuals are swept up in such cases: they have less reason to suspect that they've done anything wrong.
We're heading that way in terms of contracts and blockchain.
And insofar as "the law" is a contract between the citizens and government, you'll find more and more government regulation being implemented in blockchain in the future.
It is the job of legislators to write laws that are as free from faults as possible. It is the job of judges to protect the people from unavoidable faults in legislation.
Tic tac toe? Rock, paper, scissors?
Are you suggesting the law, any law, can ever be made so simple?
Just pull people over for no reason whatsoever, give them a ticket for "enforcement goal of the week," and collect the fines as most people will pay it. If anyone eventually disputes and wins, the local govt still gets to keep the money, since they at some point in time "justly" stood guilty.
Or arrest and convict people of jaywalking, or any other made up charge. As long as you have a judge that will go along with this (the communities in and near Ferguson MO are an example), it's a "great" way to collect money. Just convict them, no matter what.
As civil forfeiture is increasingly scrutinized, it will not surprise me if streamlined convictions and 1 day "time served" sentences become common along lonely stretches of Interstate 80. "There, we fixed it."
Not that I particularly agree with Thomas, but assuming that it's trivially easy to convict anyone you want of a criminal offense is quite a big leap. (And it doesn't just require a compliant judge -- people could always ask for jury trials).
> The Justice Department's report said Brockmeyer approved the creation of additional fees, "many of which are widely considered abusive and may be unlawful, including several that the City has repealed during the pendency of our investigation. These include a $50 fee charged each time a person has a pending municipal arrest warrant cleared."
> Just about every branch of Ferguson government -- police, Municipal Court, City Hall -- participated in "unlawful" targeting of African-American residents for tickets and fines, the Justice Department concluded.
http://www.cnn.com/2015/03/09/us/ferguson-missouri-courts/in...
It looks like it was trivially easy to come up with any scheme they wanted to collect money from people too vulnerable and poor to fight it. If the Michael Brown shooting hadn't happened, the area wouldn't have received the scrutiny it did, and my assumption is that the scheme would still be ongoing. I'm sure this happens elsewhere; the smaller the community and the more chummy the players, the easier it would be.
And this case was about people who had gone through entire non-trivial justice system processes for non-trivial crimes, were convicted, and later had those convictions overturned. It's not about fines and speeding tickets.
Thomas' opinion is very strictly based on the idea that there was once a legal conviction, that was then overturned. That's not something that happens very much in the legal system, and it particularly doesn't happen very much for the small annoying offenses like traffic violations that you're talking about, because it's just not worth the time and effort to overturn them.
He didn't say, "It's cool to fine someone absent a conviction, and then when or if they successfully avoid a conviction, do not give them back their money."
Not to mention, perverse incentives would instantly appear like cops worried about their pensions and budget planting evidence on people for convictions. Nice car you got there, shame I found cocaine in it. Now it belongs to the state because a plea is better than $50,000 in lawyer fees to fight a corrupt police department you probably can't even beat. Even if you could, spending $50,000 to save a car worth $10,000 doesn't make sense.
In other words, the petitioners can't prove that they have a legal right to a refund. Apparently there is no Colorado law saying that if your conviction is overturned, the state will refund those fees.
That would be a fairly easy legislative fix, rather than inventing the right from thin air via this majority SCOTUS decision.
The premise which justified taking the property was invalid, thus the state had no legal basis to deprive the victim of property.
Now, if this was a question of the personal liability of agents of the state in taking the money, the fact that they had a reasonable good faith belief that they acted based on a a valid legal premise would probably be a valid point, if governmental immunity didn't make it moot in the first place. But this isn't about that.
Sure, but there's probably no incentive for legislatures to implement this fix. The loophole enriches their constituent law enforcement organizations, while also relaxing their budgetary needs. And most private citizens probably aren't going to care much either way, especially since the loophole can be framed as pro-law and order.
So if the law as written is encouraging abusive behavior from law enforcement, and the legislative incentives are misaligned to prevent the easy fix, how else could it get fixed?
The incentive is the same as the incentive for them to do anything: democratic process and popular pressure. If this is such a no-brainer it should have wide support among Colorado voters. This is much better than having unelected federal judges thousands of miles away declare the issue by fiat.
> The loophole enriches their constituent law enforcement organizations
A. It's not a "loophole", it's simply the lack of any explicit law directing refunds. B. I'm not familiar with Colorado state finances, but I seriously doubt that refunds from vacated convictions would have any significant budgetary impact at all.
> ...if the law as written is encouraging abusive behavior from law enforcement
Again, this isn't "abusive behavior". It's simply lack of a law authorizing what the petitioners demand. I wouldn't be surprised if it was simply that nobody thought to write and pass the law, given the relative rarity of vacated convictions.
That's literally the definition of a loophole - something the letter of law fails to account for, but the spirit of the law would have intended to cover.
I was writing in a pragmatic register, not a legal one. You can't consider the ethical/practical consequences of the law using only formal legal language - there's no legal definition of what constitutes a loophole in the law, nor could there possibly be.
> Again, this isn't "abusive behavior".
Again, not referring to a legal standard of abuse. If you were arrested and wrongly convicted, had all your assets seized, and then had your conviction vacated but the state refused to return your property, would you feel abused?
Further, the democratic process and popular pressure has little impact on most laws. The context is first personal conviction as most bills have minimal impact on getting elected, next attention as bills are mostly to long and complex to read and understand in their entirety. Sure, a bill might only be ~200,000 words, but this is a diff that's updating other complex legislation which will then get applied in a huge range of complex situations.
So, honestly having a small group which can debug the law in response to specific escalations is not only reasonable, but also vital.
In his view, based on previous precedent, it does not. As a matter of previous precedent, the majorities approach is somewhat legally strained based on the Due Process Clause. But as a matter of policy, the majority's decision seems correct.
Let's assume some drug law is relaxed in the future. Do all prisoners currently serving sentences get released automatically? I don't think so, since they were convicted and sentenced under current law. I believe it would take an additional act of the legislature to release those prisoners. (This Supreme Court ruling seems to make this step unnecessary in the case of money+overturned conviction)
And let's not forget that they won't get anything for the years and opportunity lost while in prison for things that are no longer crimes.
It ends with the summary:
No one disputes that if petitioners had never been convicted, Colorado could not have required them to pay the money at issue. And no one disputes that Colorado cannot require petitioners to pay any additional costs, fees, or restitution now that their convictions have been invalidated. It does not follow, however, that petitioners have a property right in the money they paid pursuant to their then-valid convictions, which now belongs to the State and the victims under Colorado law. The Court today announces that petitioners have a right to an automatic refund because the State has “no legal right” to that money. Ante, at 8, n. 11. But, intuitive and rhetorical appeal aside, it does not seriously attempt to ground that conclusion in state or federal law. If petitioners’ supposed right to an automatic refund arises under Colorado law, then the Colorado Supreme Court remains free on remand to clarify whether that right in fact exists. If it arises under substantive due process, then the Court’s procedural due process analysis misses the point.
I respectfully dissent.
I'm personally glad it went the way it did, but I'm really not a law type to figure out if it went that way in a good way.