Monday, July 6, 2009

'Technically just' is an oxymoron

What's the difference between a fine and a fee? If the answer is that the former is intended to punish, and the latter is just a price, then how could any fine punish people equally? We aren't equally wealthy, so the punishment from a given fine will be unreasonably small for an exceptionally wealthy person, and unreasonably large for an exceptionally poor one. This is a glaring injustice that undermines our respect for law itself.

You might counter this argument with the reasoning that perhaps the fine is simply to redress the damage done to the community by the infraction and thus does equate to a fixed cost which becomes the fine. There might be some cases where this is true, but it would have to be the exception because, for example, most of the infractions I can think of are crimes that don't so much harm the community, as they do particular people in it. Like parking in a handicapped spot, or fire zone. It also makes one wonder why we'd call that an infraction instead of just a service provided for a fee. If there is no punishment then why call it a crime?

And you might feel that all of this is much ado about nothing. You might be right. I disagree and see it more as the death of a thousand tiny cuts. No single defect in our laws undermines our respect, but collectively they seem to be doing just that. From a five year old essay by an intellectual property attorney on the public's ambivalent attitude towards IP to a recent essay from an ex deputy attorney general on the dysfunctional perspective of legal advisors at the highest levels of leadership the message is the same; I'd call it jurisprudential liquefaction. It really is akin to the evaporation of the very soul of our nation--what made America most endearing to a fairness hungry world.

Law works only because we respect it. The kind of respect we have for what we consider sacred--not just essential, but irresistibly attractive, awe inspiring, and deeply cherished. The machinery we can build to enforce law will never amount to more than a selective pressure to evolve better criminals. That's just a consequence of the geometry of our reality. Nature will engineer something to fill every niche. (To really be rid of something you have to destroy the environment that it is suited to fill.)

We must love our law for what it genuinely is--the embodiment of justice, the fastener necessary to build enterprise, and the test to which we subject all policy. It must strive above all else to be fair in the sincerest sense we are capable of imagining and measuring. Law, and every shred of the infrastructure involved in enforcing it, must earn that admiration by being honestly worthy of it.

And that's why I started with something so seemingly trivial--because what makes it seem so trivial is only our attitude towards the injustice. Our laws are the true religion of our nation and it really is our faith in them that bring us the gifts of freedom and prosperity. It's too easy to lose respect and too hard to earn it to be so reckless with something so precious.

Especially when it is so easily fixed. There are other nations that deploy more equitable mechanisms to levy fines (for example Finland's day fines scale by income.) There are policies we could adopt that would require us to craft laws with more care, reengineer any that are not or can not be reasonably well enforced, and even ways to force a rethink in strategy periodically by requiring laws on vice, for example, to have expiration dates. It took a private attorney to force the justice department to use the new technologies of DNA testing to check prior convictions for serious crimes and that resulted in the release of many people that had been wrongly convicted an spent many years in prison, some even scheduled to be executed. This should be deeply embarrassing to our nation and infuriating to citizens. Can't the folks who work at the justice department read the name on the building? What do they reckon it means? Just ice?

Perhaps we should start with a better map of our laws that depicts everything we know and can measure about them; the socioeconomic background and reasoning behind them, the measured impact after enactment, the ongoing costs/benefits of enforcement, the case histories of their application, and our discussions about them. A resource that would help us all better see and understand the role law plays in our lives, how it is created and maintained, and why it so deserves our gratitude and respect. It's a lot easier to respect something when you can actually see and touch the sense of it.


  1. glad that you liked my french toast

  2. I'm sure there's combination of equations that could illustrate the 'true cost' of externalities of day-to-day bonehead things that would normally incur a fine...make them fees associated with the true costs of much larger 'infractions' against people and the planet...for destroying some aspect of the environment...for labor abuses...if the fees WERE in line with the wealth of the individual or corporate entity AND reflected the 'true' cost...then the 'infractions' wouldn't would be too costly to quickly park in the handicap zone as you run into the bank (I like the simplicity of where you started in the post).