Archive for June 6th, 2007

Are amnesties just another name for bad laws?

June 6, 2007

A good article on the use of amnesties and how they reflect on the validity of the laws they circumvent.

The ambitious immigration overhaul package that Congress is studying has drawn criticism from conservatives who say it offers amnesty to lawbreakers, and from immigration advocates who say it will not do enough to bring millions of people out of the shadows.

Husak and Solum, legal theorists and philosophers, argue that laws on immigration are part of a broad pattern. In recent decades, they say, Congress has passed innumerable laws that no one seriously expects will be enforced. Such laws largely seem to serve symbolic purposes and are often designed to placate some powerful constituency — conservatives in the case of immigration, or the entertainment industry in the case of laws that seek to deter people from swapping copyrighted music and movies.

The yawning divide between reality and what such laws say should happen is what produces the dilemmas that lead to amnesties. Immigration law has produced a situation where an estimated 12 million people in the country — most of whom look, sound and act like law-abiding citizens — are supposed to be apprehended, prosecuted and deported, a job that is not only well beyond the capacity of the police and courts, but would wreck substantial parts of the economy were it attempted.

“No one is so stupid as to think police are going to go out and round up 12 million illegal immigrants,” said Husak, at Rutgers University. “Ninety million living Americans have used illegal drugs. It is inconceivable you can punish them. Downloading copyrighted music [without paying for it] — half or more of all teenagers are guilty. No one is going to enforce such laws.”

The consequence of symbolic lawmaking is over-criminalization, which turns out to be as difficult a problem to deal with in the long run as crime itself. It might sound good for a politician to sternly declare that draft dodgers are in violation of the law and at risk for prosecution, but how do you deal with thousands of Americans who evaded the draft during the Vietnam War — after the country had concluded the war was lost and a ghastly mistake? You offer them amnesty, of course.

They go on to note that there are many laws on the books that turn tens of thousands of citizens into potential criminals due to paperwork crimes.

The article speaks directly to the recent extension of the amnesty in Canada for gun owners with lapsed licences and who have unregistered firearms in their possession.

As the article points out, if there was no problem – if gun owners were renewing their licences prior to expiry – there would be no need for an amnesty. The legal system would deal with those few who did not comply. But that is not what is happening.

As far as I know, there is no available information as to how many gun owners have let their licences lapse, although there are rumours that it could be as high as 250,000. We do have a Freedom of Information report showing that the RCMP sent out 91,946 firearms licence revocation notices in the period from January 1st, 2006 to November 21st 2006.

The report shows that approximately 20,000 of these “clients” (as the RCMP likes to call them) either renewed their licences or disposed of their firearms in some manner. This would leave 70,000 newly criminalized Canadians that would be open to criminal prosecution by the federal Justice Department. However it would be unlikely that the federal prosecutors could even begin to handle this many cases without their whole system grinding to a halt nor could the federal politicians contemplate handling the uproar that would accompany such an action. Therefore the amnesty.

However although those lapsed individuals are now free from the possibility of prosecution they can still anticipate a knock on the door to find a friendly (or not) RCMP officer on their doorstep who has come to seize their personal property because they are lacking the required paperwork. Or they could possibly expect an exciting surprise visit from the RCMP’s provincial Emergency Response Team (ERT) such as John Rew experienced in Alberta a short time ago. (Note that we don’t call them SWAT teams anymore. Obviously bad vibes there. Although they function in exactly the same way, it sounds much better).

The article concludes:

The vast majority of people punished for speeding, drug violations or downloading music, or for perjury, prostitution or illegal immigration, are not targeted merely because they are breaking the law — only a tiny fraction of those who break such laws, after all, ever get punished. Most people who get in trouble are the ones who police and prosecutors decide, for whatever reason, should be punished, Husak says. Enacting impractical laws that have largely rhetorical value, in other words, leads to selective enforcement — with all the attendant risks of unfairness and bias.

“The myth is that legislators are the most important people in the criminal justice system,” Husak said. “But when legislators draft laws that are very broad, they abdicate their roles and give prosecutors the power to decide who will get punished and who should not.”

That is what we are now seeing in Canada with the legacy of the federal Liberal’s Firearms Act.


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