Brown & Little, P.L.C. » Government Rants » A Fundamental Shift

A Fundamental Shift

A particular way of thinking dominates among people inside the justice system. The idea is that the state accomplishes the noble goals of the people, and wrongdoers deserve the punishments the legislature created for doing the things the legislature told them not to do independently of the state’s wrongdoing in catching and prosecuting them. The system’s objectives are good and pure and worthy even when its agents and their methods are questionable.

That view is apparent in courts everywhere. When prosecutors erroneously ask for dismissals with prejudice instead of without prejudice, courts quietly correct the mistake because defendants shouldn’t benefit from such things. Most of them did it, after all, and the laws say they shouldn’t have. Even when a prosecutor willfully conceals evidence, courts are hesitant to give the defendant a windfall. He may still be guilty, after all. The remedy for prosecutorial misconduct at trial is only dismissal where the conduct in question is particularly egregious. A new trial, another shot for the state, ensures the guilty don’t go free because of a state actor’s errors.

It’s similar with police officers. When cops make mistakes on tickets, cases typically don’t just get dismissed. Most courts allow the state to amend the charges whenever it happens to notice the mistake. A clerical error doesn’t change the fact the defendant was in fact speeding, after all. Prosecutor and judges know the general public cannot tolerate people going ten over; why else would the legislature have passed laws against it? They act like letting people get away with that kind of thing is going to exact some sort of social cost, which invariably outweighs the dangers of innocent little government mistakes.

Some of the United States Supreme Court’s rulings involving Fourth Amendment violations reflect similar reasoning. Courts don’t give the defendant any benefit when the police fail to knock and announce in part because the cost of letting the guilty go free exceeds the deterrent effect on officers. It’s the balancing test behind the good faith exception to the exclusionary rule. Exclusion is appropriate where the benefits of exclusion outweigh its supposed social costs. The courts think that government is a force for good, an institution accomplishing important things. It shouldn’t be hindered every time the people who comprise it screw something up.

Many people, perhaps most people, see no problem with any of this. There is a problem, however, but it’s difficult to see because it’s so fundamental. Read these words in the Declaration of Independence and consider why our government exists in the first place:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Our government wasn’t instituted to solve social problems. The whole point was to secure our rights. The idea that a government agent’s trampling of individual rights is no big deal, a distant second place to convicting people of all the stupid and occasionally not so stupid things we’ve criminalized over the years, is antithetical to the reason we have government in the first place.

People who think the state accomplishes the noble goals of the people, like fining people for not fully stopping at red octagons or imprisoning people who let their swimming pools fall into disrepair, and that wrongdoers deserve the punishments the legislature created, like a presumptive sentence of ten years for a third personal possession of meth case, independent of the government wrongfully detaining people or invading their homes exemplify the fundamental shift that’s occurred in our thinking over the years. Even though the system’s objectives are anything but good or pure or worthy, people trust government now. They don’t trust each other. Government needs to keep us line to protect every one of us from every other one of us. The thing that matters isn’t that the government protect our rights, but that the government’s objectives be achieved.

Politicians pass oppressive laws pandering to some frightened, narrow-minded special interest group. People respect that because they think it represents their will. The government then stretches the laws to give it power far beyond the law’s intended scope. People respect that because they trust the government. Finally, government actors disregard the constitution from investigation to conviction and beyond. People respect that because government is making sure bad people get what they deserve. The only thing people don’t respect is individual rights. The shift away from a healthy love of liberty and a justified distrust of power is complete. For proof, look no further than the now-prevalent view that individuals shouldn’t benefit from the misconduct of the state.

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