On Wed, Feb 14, 2001 at 07:20:38AM -0500, GBurch1@aol.com wrote:
>
> What you may object to is the results of litigation that have arisen in the
> US over the last few decades as the web of property rights and rules
> regarding the personal responsibility of plaintiffs that used to be a major
> part of the common law here has eroded. That is not the fault of the basic,
> time-tested system of private enforcement of rights through civil litigation,
> but rather in most cases is the result of legislatures and judges that have
> lost the sense of balance between "civil" rights and property rights that
> marked the central strength of the Anglo-American common law until very
> recent times.
There's another issue that the US is notorious for: inflexible and
draconian law enforcement.
Example: suppose I smoke a joint in public. Posession of Cannabis, a
schedule D controlled substance, is illegal here (in Scotland). Maximum
sentence for posession is a £2000 fine (roughly US $3000) for a small
amount -- prison sentences for larger quantities. But *in practice*
if I smoke a joint in public and a police officer notices, one of two
things will happen: they'll ignore it, or they'll take it off me, throw
it down a drain, and formally caution me that if they see me doing it
again they'll charge me. In the current climate, to be arrested and
charged I'd have to be extremely unlucky (or provoke the cop in some
way).
(Note that you're much more likely to be formally cautioned or arrested
in Glasgow, than over here in relatively laid-back Edinburgh.)
Anyway. The point I'd like to make is that if the law was enforced rigidly,
I'd be £2000 poorer for that joint. What's going on here is the exercise
of institutional leniency; the cop who ignores or issues a caution knows
that their senior officer isn't going to jump on them if they find out.
The unwritten policy of leniency is condoned from the top down, with
approval sideways from the judiciary (who don't want their time wasted
prosecuting people for posessing a single joint) and politicians (most
of whom these days have a passing familiarity with the herb and aren't
inclined to clutter up the courts).
I believe that if leniency is routinely applied in this way there exists
a strong argument for abolishing the law in the first place; but the point
is, there's a strong tradition in law in Scotland (and England) for the
judicial apparatus to refrain from prosecuting all crimes to the maximum
extent. I suspect this dates in part to the late 18th century and the
institution of the Bloody Code -- under that legal set-up, roughly 50% of
sentences were commuted on appeal, and it was a good thing too, because
the penalty for stealing a loaf of bread could be hanging or exile and
slave labour for life. Today, the Procurator Fiscal (in Scotland --
the Crown Prosecution Service in England) may decide to drop criminal
proceedings if they don't think it's appropriate to proceed. (For example,
this usually happens in cases of assault or homicide in self-defense
where the situation is unambiguous.)
Now, I have a distinct impression that there is *no* facility of leniency
in US law enforcement today. That is, a police officer who turns a blind
eye to a trivial offense is going to be in fear of their job (at best);
that there's a positive requirement that *all* offenses be prosecuted to
the hilt. This may be a reaction to selective under-enforcement earlier
on in your history, but from the outside it looks frighteningly
totalitarian. What is justice, without the prerogative of mercy?
-- Charlie
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