2015/06/14

How displacements defeat justice and law

One of the ways rights are being threatened by government today is the creeping practice of what may be called displacements.

In psychology displacement behavior is the substitution of behavior that is easier, safer, but unconducive to one's own best interests, for behavior that is more difficult, more risky, more conducive, but perhaps unacceptable in a larger context. The classic example is venting one's rage by uselessly smashing an inanimate object instead of doing something rational and effective about the real source of the frustration. It is usually to reduce emotional tension, without regard for solving underlying problems.

In law one of the forms displacement takes is making crimes out of what would previously  been considered only evidence of a crime, often weak and circumstantial. This is usually done because the basic crime, the malum in se, is difficult to prove. So possession or production of evidence thought to be associated with the underlying crime is prosecuted, as an act of discretion in which the courts defer to the judgment of the prosecution that the suspect is a bad guy, having that reputation with the prosecutor, even though the prosecutor is unable or unwilling to actually prove he committed that underlying crime, or even that such a crime was actually committed by anyone. Presumption upon presumption, until the burden of proof falls on the accused to prove his innocence instead of on the prosecutor to prove his guilt.

Transactions and communications with government agents

Four such statutes have become especially prominent: enabling civil asset forfeiture, against  money laundering and structuring, and against making false statements to government investigators.

A recent suspect involving two of these is former U.S. House Speaker Dennis Hastert, charged with money structuring and making false statements to FBI agents, about payments to a blackmailer in amounts of less than $10,000 each to avoid, to conceal his alleged acts of child molestation when he was a schoolteacher many decades ago. He was not charged with child molestation, prosecution of which is barred by a statute of limitations, and the payment of blackmail is not a crime, so the payments are not evidence of a crime, because there is no crime. Only the several payments made in amounts of less than $10,000 are considered to be the crime.

The legal theory for making a crime out of any false statement to a "government investigator" is that it is "obstruction of justice," like physically impeding officers while they are working. However, the statute is worded so vaguely that it can be used as a tool to prosecute anyone who says anything to a government agent, as long as two agents sign a form report that the statement was false, without providing any evidence like a recording of the conversation. Indeed that form can be signed without there having been any conversation at all. And it doesn't have to be a federal investigator working for what is usually perceived as an investigative agency. It could be a census taker. It could be a state or local agent, or even an agent of a foreign government outside the U.S. The hapless defendant, who may have just been trying to help, is treated as though he were under oath when he is not under oath.

Public Safety

A predictable response whenever there is an especially heinous shooting incident is to call for "stronger gun control laws". Yet almost none of the statutes proposed would do anything to prevent incidents like the one that occurred. Almost all seem to be predicated on the demonstrably false model that gun laws reduce the numbers of firearms generally available, and that that would reduce the firearms available to criminals. Yet it is more likely to result in more shootings by criminals who will have no trouble getting firearms and use them in a target-rich environment of unarmed victims. That kind of simplistic linear thinking is common to most kinds of displacement proposals.

The rational solution would be to so organize society that it can identify dangerous individuals and intervene before they can do harm, but most ways government might try to do that would be a danger to civil liberties and standards like due process of law. So some people seize on doing something easy so they can say they are doing something, even when what they are doing is useless or even harmful.

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