- It requires solidarity by criminal defendants, many of whom will go to jail for a long time absent a plea agreement. It is literally, the prisoner's dilemma.
- Absent posting bail, you stay in jail until you go to trial (which can be a long time in a scenario where everyone is in fact going to trial). The "excessive bail" clause of the 8th Amendment, in practice, has been eviscerated. Bail is routinely set so high that the only way it is affordable is to pay a bondsman. This means that it's easy to punish people prior to a trial for exercising their rights. A stay in jail prior to trial can be as or more destructive than being convicted - you likely lose your job, your housing, possibly custody of your children, all without any process.
The judicial system has ~ a thousand years practice at maintaining control and getting the outcomes (overall) that the State desires. It is not a simple matter to "force" it to do anything.
Sure, it's prisoner's dilemma, but one in which a small number of defectors doesn't affect the outcome, while in classic prisoner's dilemma there's a competition to be the single defector.
In this case, there's no necessary advantage to being an early defector. In fact, the best strategy is to hold out rejecting the plea until the very last minute, forcing the prosecutors to compete in offering better and better deals to handle the disruption. And even late defections serve the purpose of disrupting the system.
So you don't need the complete cooperation that classic prisoner's dilemma requires, but you do need some threshold of cooperation. If you had some high profile support along with significant community pressure, something along the lines of the "stop snitching" campaign, it could probably be done.
So it's a collective action problem, but not exactly prisoners' dilemma. Collective action problems can sometimes be solved. And there's another factor: everything is local. You don't need collective action across the entire U.S., just within a particular jurisdiction. That starts to make it look more feasible.
You'd start with the most vulnerable jurisdictions...those where the author states it would disrupt the system if only two or three times as many people insisted on a jury trial. From that group, select the places with the populations most annoyed at the system.
Focus there and start heavy promotion. Build a community effort. The very act of doing that will help build community ties, a nice side effect.
Once you succeed in the most vulnerable district, move on to the next. Each success will improve your odds of further success, since it will change people's perceptions of risk.
> Such chaos would force mass incarceration to the top of the agenda for politicians and policy makers, leaving them only two viable options: sharply scale back the number of criminal cases filed (for drug possession, for example) or amend the Constitution (or eviscerate it by judicial “emergency” fiat).
"eviscerate" it? That surely couldn't happen - courts are bound to reasonable jurisprudence. So clearly we'll either end up directly fixing the problem, or we'll have to modify the constitution, which is serious business, and would clearly have to be done right.
Except we already know what will happen:
> The Supreme Court ruled that threatening someone with life imprisonment for a minor crime in an effort to induce him to forfeit a jury trial did not violate his Sixth Amendment right to trial. Thirteen years later, in Harmelin v. Michigan, the court ruled that life imprisonment for a first-time drug offense did not violate the Eighth Amendment’s ban on cruel and unusual punishment.
Two unquestionably wrong decisions for the purpose of expedience - what's a third? Of course courts grant themselves ever-more power! But NYT spins it as if this system were actually accountable to the poor soles [sic] caught up in it, perpetuating the false hope that it's possible to swing for the fences and change the government from within its rules.
The punishment for theft historically was (1) execution, (2) then whipping, the stockades, or some other physical abuse, and (3) more recently, imprisonment.
Consequently, in the historical scheme of things, imprisonment is considered humane under the Constitution.
More recent SCOTUS decisions are starting to swing toward more humane imprisonment terms, but it may be a long time before SCOTUS actually rules on this issue. Progress will come from the state and local levels.
You know, whipping and stockades might have been more immediately abusive, or cynically speaking, more visible to the outside world, but at least they were brief. I wouldn't be surprised if it turns out the psychological and physical harm of long-term incarceration was actually worse. (It might be more effective, on account of the criminals being physically restricted from committing crimes in the outside world, but it might also be more damaging.)
Additionally, this doubts the ability of the US Justice system to keep up if its pushed. Yes, its already pretty slow and inefficient, but most other countries would probably think that it would be impossible to prosecute and detain as many people as the US already does. Just because its hard to imagine scaling the system up even more, doesn't mean they couldn't scale it.
Politics around "we need more jails to keep dangerous criminals away from your children" almost always result in more jails and more prosecution. Logic rarely prevails. I feel confident that the US would just attempt (unfortunately) to double their capacity.
Isn't it surprising that there are so many ideas floating around to disrupt Hollywood, transform other forms of Governance, disrupt traditional business models but no-one talks about forcing change in law/judiciary itself.
At best, a startup would talk about saving a few hundred dollars in legal fees through some free advice/content on Google. Why is this so?
I don't know. One of my "frighteningly ambitious startup ideas" would be a product that lets one man fight an army of lawyers and legal red tape. That way the bar to sue competitors out of existence raises dramatically. Dramatically enough to give start-ups a chance of actually defeating entrenched monopolies with large legal teams.
"It seems that we want to think of a world that is logical and populated with verifiable facts. However, the world of the lawyer is fundamentally illogical (as are most humans most of the time) and facts only exist when either agreed to by the parties or determined by judge or jury.
This observation that "legal logic" is not quite the same as traditional rational-thought logic has led to an interesting "legal reasoning" subfield of AI over the past decade or so (with some precursors dating back further) that tries to formalize exactly what logic it is following, and how it differs from traditional rationality. That area develops alternative logics, reasoning procedures, etc., in order to do things like simulate case outcomes, suggest possible arguments to make, evaluate alternative strategies, etc. Until relatively recently many people did think that the right way to make a legal reasoning system was to treat the law as logical rules, and the legal reasoning problem as a problem of rational inference over rules+evidence... which turns out not to be that accurate an account of how law actually operates."
Does something like legal insurance exist? I mean for most small start-ups having a lawyer and money to pay him when needed might be hard but I imagine most don't have problems with this all the time and pooling money to pay for lawyers when needed might be possible.
I think this assumes that there is no concerted effort by a group of people to be arrested. If a group of people had this mission in mind and committed a crime to become incarcerated in an already overwhelmed part of the US, wouldn't that be enough to start?
I think the issue is that the word defendant carries a connotation of guilty. Even reading some of the comments on the article, people are saying that people should feel lucky to get a plea deal. Its baffling to me how it can be seen as acceptable to threaten life in prison to get someone to take a guilty plea with probation. As an innocent person I don't think I could risk it with my family hanging on the balance.
I'm an attorney. I did some criminal appointments in the federal system before quitting law to get into entrepreneurship full time. It's tough work and it gave me some pretty amazing insights into the the justice system and the human condition.
In many ways--certainly not all--the plea system benefits the accused. It speeds up the trial, when evidence is lacking the accused tend to get a better result and quite honestly if the evidence is really bad the charges can--and do get dropped. We tend to look at the perverse episodes and not the helpful ones.
That said, myself and just about any attorney I know on either side of the bar feels like you'd rather let hundreds of guilty people go free than put one innocent person in jail.
I hate that criminal law is so politicized. (i.e. you have you be "tough on crime" to be electable or "three strikes rules keep 'bad' guys off the streets." If we can find lawmakers that will fight those mentalities, we will be much better off than trying to halt a justice system that's already terrible underfunded and in the process further hurt the accused, judges, juries, attorneys and citizens in the process.
Collateral charges are awful though. (mentioned briefly in the article--strips rights away of those with felony convictions)
When we take away voting rights, public assistance rights, free speech rights, and others, because someone broke the law (in many cases minor or non-violent felonies) that makes the problem worse because we're silencing folks that could give us insights to make our justice system better. And in most cases further complicating or destroying the support system for people who truly need help. Not to be infantalizing because not everyone needs or wants help, but it just doesn't seem "American" or "fair" to me to kick folks while they are down or prevent them from having a voice in our government or the help that could enable them to get on their feet again.
Be aware that in a felony plea bargain, you may forever be forfeiting your right to vote. 1 in 40 people in the United States are not allowed to vote because they have lost, either for forever, while in prison, while on parole, or while on probation, their right to vote. Fourteen states (AL, AZ, DE, FL, IA, KY, MD, MS, NE, NV, TN, VA, WA, and WY) eliminate voting for any felony conviction for life. In 31 states, you can't vote while on probation. Only 15 states allow you to vote while on parole. Only Maine and Vermont allow you to vote while a prisoner.
The most comprehensive study on the issue that I'm aware of is still the 1998 Sentencing Project / Human Rights Watch study, but The Sentencing Project provides attention to disenfranchisement issues on their blog.
If there was a sudden dramatic rise in the number of cases approaching trial, the natural response would be to increase the value of plea deals until the number of trials drops to a managable level.
As the supply of plea deals increases, and the demand decreases, their price will drop.
Prosecutors with a large volume of unsold plea deals (a large inventory of pending cases and intense pressure to clear them quickly) will be highly motivated to reduce the sentences offered to criminals.
The net result would likely be smaller sentences, but not a fundamental reform of the justice system.
This is basically a form of strike. Although strikes can improve the wages of workers, they won't fundamentally reform the relationship between a company and it's workers.
No strike by the UAW would ever lead to the creation of something like YCombinator, for example.
The key to fixing problems with our government is to disrupt it. To replace it with something that is "not as good", but "much more accessible" (if you are Exon, the current government is great, because it serves your needs exactly, but if you are a non-violent drug offender it is completely in-accessible to you).
Strike is a good analogy. However the modern labour & trade union movement has succeeded in getting some labour reforms over the last 100 years. Workers now have much more rights (e.g. to not be fired for no reason, mandatory holiday pay, employee tribunals to settle disputes, force majeure, maternity & paternity leave etc.)
I have to wonder if Obama's prosecution of cannabis cases is merely a strategy to avoid renegotiating the relationship of the Government (or DEA, DoJ, etc.) to its citizens WRT pot.
This completely misses the point. The justice system is already crashing, from being underfunded.
""" “cuts already imposed on the Los Angeles Superior Court, if unabated, will force the closure of over 180 courtrooms and layoffs of more than 1800 employees in the coming years. This is a dramatic reduction in work force and courtrooms. There are approximately 605 courtrooms operating throughout 50 locations in Los Angeles County. The closure of 180 courtrooms includes the closure of nine courthouses. The loss of 1800 employees constitutes a 34 percent reduction in the court’s workforce. The cuts in staff and courtrooms/courthouses (along with the priority given to criminal cases) will result in an increase to the already existing backlog of cases, which, in turn, will slow the movement of virtually all civil cases to a snail’s pace." """ http://www.plljlaw.com/CM/Articles/Court-Budget-Cuts.asp
If you want to crash the justice system, then continue to do what we have been doing: underfund judges, court employees, public defenders, and prosecutors.
I don't see how the author is missing the point because of your claim. If the justice system is already crashing, then massively asking to go to trial would crash it even more.
There is something informally called "trial tax" in the American justice system wherein if you decide to go for trial the punishment on guilty verdict is much higher than on plea bargain.
A famous case was that of Vincent Bogan in late 80s who was given a sentence of 75 years in maximum security for three counts of armed robbery (which is quite high for the crime charged) because he refused plea bargain and went for jury trial.
History repeats itself: the tactic being advocated here worked pretty well for the Industrial Workers of the World in the early 20th century. Their tactic was to provoke authorities into arresting an IWW member (it helped that, then as now, the police are eager to arrest people who are insufficiently deferential, crime or no crime), then bring in hundreds of IWW members and others, flooding the jails. In the jails, they'd have a ready audience of other imprisoned activists to make contact with and could talk about the IWW's goals, tactics, and mission. So they won converts with every round of mass arrests.
Wouldn't this be reasonably easy to do if you threw money at the problem?
If a certain person or organisation had a decent chunk of change, they could hire a large law firm to specifically volunteer to take court appointments. Just as most court appointed lawyers advise their clients to plea, the hired lawyers could advise to go to trial and since most people listen to their lawyer, that'd would do it.
Obviously im oversimplifying it here, but surely its just a case of 1) get money, 2) pick a city, 3) hire lawyers, 4) get court appointments, 5) crash the system.
With enough money you could replicate the system elsewhere too.
Most clients choose not to go to trial, despite their court-appointed lawyer's advice to take it to trial. In SoCal, only about 1 out of every 100 (or more) criminal cases actually goes to trial because the defendants choose not to assert their rights. What's worse, in more than half of these cases, there is a fatal defect in the prosecution's case (usually non-existent evidence of an element of the charge) that would have gotten the case thrown out before trial if only the defendant had not chosen to plead. Frequently, this is because the type of people who rely on court-appointed lawyers are guilty (and freely admit to being guilty), and simply want to reduce the sentencing as much as possible.
Private criminal defense attorneys usually advise their clients to plead, because (1) they make less money overall if the case goes to trial, and (2) their clients usually have too much at stake to risk tossing the dice on a jury. Thus, such cases only go to trial when the DA refuses to accept a reasonable plea bargain.
Also, your reliance on large law firms is misplaced. Most lawyers in law firms, even in the litigation groups, have never gone to trial. Indeed, their closest exposure to trial is usually arguing motions for civil cases, where the procedural and substantive rules are completely different. Life is not like T.V. (Good Wife, I'm looking at you.) The end result would be a lot of inexperienced lawyers making a lot of rookie mistakes. While this could nuke the system, the more likely effect is that the first few defendants would get thoroughly screwed, and the remaining defendants would opt to plea bargain out of ear of getting one of the inexperienced private lawyers.
Finally, with enough money, i.e., the money that would be used to hire the large law firm, you could simply fix the system, at least at the county level.
not really that interesting, this is a prisoner's dilema which is well studied. because the globally optimal strategy is unstable, the equilibrium state is to defect. She's given no indication of a clever way to shift this equilibrium.
Hypothesis: A relatively small number of relatively well funded defendants could have a huge impact on the system.
EG: Martha Stewart could have done more good if she'd fought her conviction all the way to the supreme court (even if she lost, she wouldn't have gotten more time.)
Thus an organization whose sole purpose is to underwrite (via providing lawyers or funds for outside lawyers) drug defendants who want to fight their charges could shift the equilibrium state.
Maybe only %10 would take this organization up on the offer, but that could be enough to have a big impact. (Again this is a hypothesis).
Thus an organization whose sole purpose is to underwrite (via providing lawyers or funds for outside lawyers) drug defendants who want to fight their charges could shift the equilibrium state.
A jam at the appeals level has little-to-no effect on the capacity of lower-level courts. Appeals courts are designed to sift through the masses of cases they receive to pronounce judgement on the lucky few them deem worth their time. More than 90% of appeals are rejected without explanation.
Also, for the nuke option to work, you would need to overwhelm the ability of the local court system to handle all trials in a timely fashion. In a large county (i.e., any mid-to-major American city), this would require hundreds of simultaneous trials for a period of several months.
I noted above that the nuclear option worked in one county; however that only succeeded because massive budget reductions to the local court system artificially reduced the number of available courts. Without the budget reductions, we would not have had near enough simultaneous cases to successfully nuke.
The solution lays not with the accused, but their lawyers. The lawyers can simply refuse to defend cases and the system will crash. And no one, no poor defendant, will risk jail. In the 1960's there were "committed" lawyers who took a stand against the Draft, as well as legal organizations that took a stand--the National Lawyers Guild comes to mind. Unfortunately, the idealism of the 1960's turned to drug defense work in the 1970's and by the 1980's the pendulum had swung back and hard.
Even if only a small group of lawyers refused to handle cases, such as federal Criminal Justice Act attorneys (18 USC 3006A) the system would not be able to cope.
Unfortunately, it's easier to herd cats than to get lawyers to act in unison. But this is a better solution than asking the first few defendants to risk life sentences: no one wants to be the Wildebeest that enters the crocodile-infested river first. But a work stoppage by these lawyers would carry little risk of consequences other than a serious reassessment of the broken US criminal justice system.
This is an interesting idea. It's hard to say how probable it is, because that requires certain tipping point actions to occur like we saw in the Arab Spring to get a mass movement going.
The reality is though that our current system is based on the compliance of the people within the system. When you find a pressure point in the system like this, it's very possible that something will come along and really start to push on it.
Maybe the most realistic way to increase capacity if they did this would be to more efficiently process things going to trial and those who deal. From an efficiency point of view there are many things that could be done to make this process happen much faster, the question is whether or not the Justice System would go for it.
Little's Law shows the overall behavior of a System:
I = RT
Where inventory is equal to the arrival rate x time in the system. If the Arrival Rate suddenly doubles, inventory or time in the system must go up, often in non-linear ways. The question is always probability, but if the arrival rate went up, it would certainly shock the system. Whether or not it would crash it is a different question that is much harder to predict, it all depends on the scale and suddenness of the system shock.
But that "inventory" is you, in prison, awaiting trial.
There's a pressure point. But that pushing that pressure point requires many thousands of people to spend many years, each, in prison, losing everything - their career, their home, their children.
Which is why the pressure point has not been pushed. And will not be pushed.
Speaking as someone who was recently a juror on a trial, I can firmly say that the premise of this article is correct. The courts in this country are far, far, far too slow to deal with a mass number of trials. The system would simply collapse if people starting exercising this right.
Along these lines, a thought has occurred to me during the whole SOPA/PIPA debate: what if everyone that opposed the bill and has ever shared and/or linked to any copyrighted material went on and confessed the crime, refused to pay any fines and asked to go to jail?
"confess the crime"? you mean like go to the police station and confess? They would probably take a statement and not try to bring you to trial. In this particular case, it's people who are already been charged who are considering trying to go to trial.
What does that have to do with anything? You don't get a jury trial if you confess. I mean, you do, but anybody who trods the path you suggest will likely just take whatever sentence is offered. The story hinges on people being accused, indicted.
I understand that. But my point is more along the lines of "crashing the system" by simply having millions of people going to jail just by having their sentence executed, as the law demands.
It's the impracticality of so many jury trials (i.e. before a sentence is handed down, or even a conviction) that is the proximate cause, the topic of conversation.
Again, I understand that. My thought is about crashing the system by abusing another kind of "impracticality": having so many people going to jail at once would grind it to a halt.
It doesn't have to be just SOPA or copyright stuff. Take the war on drugs. Abortion. Illegal immigration.
Get all women who had an illegal abortion and doctors who performed one, and get them organized to ask to go to jail. Get anyone who used any illegal drug, and organize them to go to jail. Get all illegal immigrants and organize them to demand deportation back to their countries.
In any of these examples, I'd guess that people would simply DoS the system. The laws would have to be revised, and they would get actual change to the system just by following it through.
How would that be suicide? I'm not thinking of just getting a few hundred people and telling them to go to some Oz-like prison. And I'm not talking about some organized movement like OWS where people protested over issues related to actions perpetrated by other people.
I'm thinking of a situation where a large number of people would be cooperatively going to submit themselves to the penal system related to things they did and believe that is not right to be punished for. Most likely, they would get results even before the actual collective "turning in". Can you imagine what would happen in the US if the good majority of the 7 million undocumented immigrants [1] organized a movement that announced they would turn themselves in?
Well, for starters, sharing copyrighted material at the level you are suggesting carries a minor fine. Generally, all the court would do is levy penalties on your failure to pay said fine and then issue a court order docking your wages.
Also, as these are relatively minor offenses, not much court time is actually required to handle these cases. It would be very efficient for the federal government (which has jurisdiction) to handle thousands of these cases in a timely fashion. Consequently, you would need hundreds of thousands, even millions, of people willing to put a crime on their record for this to work.
For the current laws, I assume you are correct. I was thinking more in terms of what would happen if SOPA actually passed with the three-strikes law and everything.
Anyway, I know that this is the kind of thing that is only an hypothetical. It certainly would take millions of people to actually do some sort of sacrifice. But one could think about it as a true test to reddit: if they managed to do anything like that, no one would accuse them of slacktivism ever again.
I worked for the Public Defender during an election year. The local D.A. was trying to divert attention from a sex scandal and instructed the ADAs not to negotiate down on any crimes so that he could "look tough" on crime. The thinking was that most criminal defendants would cave and he would get a boost with the mostly-conservative voters of the county.
So the lawyers of the Public Defender (and a good portion of the private criminal defense bar) banded together and convinced about a quarter of our clients to go to trial (up from 1 in every 100 or so). I worked in a specialty division (mentally "disordered" defendants) where we got to make the decisions for our clients, and we took almost every case to trial.
We also made sure that every defendant going to trial refused to waive his right to a speedy trial, meaning that cases had to go to trial within about 2-3 months or they would get thrown out.
The consequences?
(1) To avoid speedy-trial issues, the D.A.'s office had to transfer cases out to the boonies of our county whereever there were available courtrooms for trials, and ADA's unfamiliar with these cases would take them to trial. They either lost these cases at trial or watched them get thrown out when they could not start on time (frequently, because their expert witnesses could not schedule court appearances on such short notice).
(2) A backlog of criminal and MD cases that jammed up the court docket, pushing back other cases (i.e., civil lawsuits) 5 years or more. 2009 to 2010 was not a good time to file a lawsuit in that county.
(3) An enraged judiciary that began throwing out criminal cases with wild abandon, including almost all drug possession cases, nonviolent misdemeanors, and lower-level non-violent felonies.
(4) The D.A. lost his reelection campaign, by double-digits.
The nuclear option worked, and the next D.A. rescinded the non-negotiation order.
EDIT: I should point out that this worked because massive budget reductions to the court system during this time period artificially reduced the number of courts in the county. Without those budget reductions, we would have needed many more trial-ready cases to nuke the system.
I should point out that this worked because massive budget reductions to the court system during this time period artificially reduced the number of courts in the county.
A judicial system that depends on plea bargains to achieve a merely basic Constitutional level of service has already had its budget cut to the bone.
I would like to point out that it's horrifying to know that a DA would try to mess with the system just to look good. I know it happens but it should not and points to a broken system of how people are motivated (e.g. look tough fighting crime by issuing ridiculous edict in order to win re-election campaign).
Why won't you share his name? The D.A. was a public servant. Not only should his actions taken under the color of his role be public knowledge, but he should be held responsible for them by the public as well. It'd be like saying "I used to work for a President who made Executive Order X", and then being evasive when someone asks who the President was.
There are a lot more possibilities than just those six. It could be almost anywhere, really. For example, how about somewhere in Florida? There have been lots of foreclosures there, and it has a large conservative population.
Also, the poster said "conservative" but didn't explicitly say "Republican", so you can't necessarily rule out counties with Democratic DAs. The poster also didn't give a timeframe. It could have been well before the housing bust for all we know. They were obviously being intentionally vague.
Shouldn't be too hard to find, he gave a lot of unique information. We know that this was in the 2009-2011 timeframe, as this "was a bad time to file a lawsuit in that county".
Here's a checklist of things that shouldn't be too hard to establish with some Google-fu:
* Election results for "double-digit" losses by incumbent DAs.
* Areas with a special division for "mentally disordered" clients (Is this a common term found everywhere? Dunno).
* A (state?, unlikely, but I don't know of many county-level legislatures; they are generally governed by a mayor or council) legislature that started specifically evacuating drug possession cases from the docket (would this count as a "legislative pardon" or were the cases just reset?) as a response to 5+ year lag on civil suits.
* "heavily conservative", which your list here seems to contemplate.
* a sex-scandal embroiled DA, with reports probably emerging in the 2008-2009 timeframe.
And there were other significant details in there too, but I think the sex scandal thing will be one of the best filters. Probably all you need is DAs-in-sex-scandals + election results from 2009-2011 to pinpoint the county. OP was not being sneaky or anonymous at all, anyone who cares can find out relatively easily.
Its kinda amazing but this article contains the primary thesis-es of Ayn Rand's Atlas Shrugged. This brings up some important questions that I think its worth pondering.
Namely, that government creates crimes to control people, ("There is no way to rule an honest man. The only power government has is over criminals. Thus we create more and more laws until every man is a criminal.")
...and that this control relies on people accepting the easier way out, rather than standing up for their rights. (In Atlas, the alternatives offered the strikers were always easier than striking.)
At the end of the day, the question they both pose is this: If some action really is immoral, is it not immoral for you to support it? If the war on drugs is immoral, is it not immoral for you to pay for it? If you're going to pay your taxes (a practical choice to be sure, even if you feel its immoral) why not match them by supporting organizations working to reform or eliminate the immoral actions those taxes fund? (e.g.: anti-drug war orgs, or a org that underwrites defense attorneys for people charged with drug crimes who want to fight them with a jury trial.)
If you're on a jury, are you going to listen when the judge tells you that you have to convict if you conclude that the person charged did in fact have drugs on them? Or are you going to judge the law (one purpose of the jury) as well as the facts, and stand proud and hang the jury if you're unable to convince them the drug war is immoral? Are you willing to lie on the jury questionnaire in order to get on the jury in the first place (since the questionnaire is designed to weed out people who will be immune to the jury tampering judges regularly engage in with their instructions.)
Or do you recognize this as immoral, but still think that the "justice" system itself IS moral because... its the government?
These are all rhetorical questions. I'm sure my position is obvious by the questions I'm asking, but I'm not looking to debate here, I'm just providing a perspective. And my amusement that the NYT would write a story with such parallels to Atlas Shrugged.
One final parallel is that in Atlas, the system continues to deteriorate, even when most people know its wrong, because most people fool themselves into thinking that injustice is justice. (or are anti-mind, have adopted a philosophy that is against reason.)
So a final question- does an immoral law have any power? Or is it null and void simply because its immoral? (In Maybury v. Madison the supreme court ruled that unconstitutional laws are invalid the day they are signed, no need for supreme court review to invalidate them... yet we had to have a constitutional amendment to create prohibition, but we never had one for the war on drugs...)
If a cop pulls over a driver and then searches his car and finds drugs, and you believe the drug laws are immoral, are you willing to admit that the cop is a criminal? (Or is "just doing your job" an excuse that gets him off the hook?)
If morality is objective, and the "law" he's enforcing is immoral, then the cop is the criminal in this hypothesis. If morality is subjective, then the cop somehow is made moral when doing this, because law somehow conveys morality on otherwise immoral acts. (Again all rhetorical. I'm going to log out now and enjoy my Sunday.)
> Namely, that government creates crimes to control people, ("There is no way to rule an honest man. The only power government has is over criminals. Thus we create more and more laws until every man is a criminal.")
Things like public health directly contravene this concept. There is a collective public good (say vaccination), it only works if some percentage of the population opts in, either through incentive or obligation.
Infants are protected from whooping cough only by our ability to guarantee vaccination of other citizens (since they are protected not by the vaccine itself, but the cocoon effect of having a vaccinated population that is not susceptible to whooping cough).
In other words, governments definitely do have power over honest people.
I prefer to think of it in terms of economics. There aren't honest people and dishonest people; there are incentives and people who respond to them.
The question is what your political and economic system incentivizes. In the face of good incentives, most people are good. In the face of bad incentives, no amount of moral clamoring will save your society.
Economic incentives are sandwiched between two other factors. One is more attractive, and tends to dominate discussion, and the other is more powerful and tends to dominate actual behavior.
The more attractive force is morality. People consciously approach their own behavior in moral terms, and they struggle, occasionally successfully, to defy economic incentives that conflict with their moral values. This personal focus on morality (even if it is a narcissistic delusion) makes it much more natural to discuss policy in moral terms than it terms of incentives. I don't think this is helpful for policy discussions. We should all follow what we think is right, but policy needn't reflect moral consensus.
The more powerful force is culture. Think of all the people in jail for selling drugs who could be living middle class lives if only they had rejected their social identities and social ties to follow economic incentives. It's hard to imagine more powerful economic incentives than the ones operating in American life today. If you're a poor kid and you dedicate your life to achieving technical competence in a highly paid profession, the economic elite is ideologically invested in the idea that you should be rewarded with a comfortable, secure upper-class life. Not only are they eager to see you assume the most economically productive position in life you can, in order to bolster the U.S. economic growth that their investments largely track, but even more importantly, denying you the social position you've earned would undermine the legitimacy of their social position. And if you shoot for Harvard law or Harvard medicine but fall short, you'll still fall in the upper middle class somewhere. The incentives couldn't be more clear, but mistrust and cultural ties muddy things up. The fact that people make many of the most crucial decisions of their lives as ignorant children, or have those decisions made for them by ignorant parents, gives culture a big advantage over incentives. People don't see incentives with perfect, X-ray vision. They see them through whatever lens they've been equipped with by their upbringing.
The effectiveness of incentives, then, depends on cultural factors. In the case of corporations and thoroughly bourgeois businesspeople, we underestimate the power of incentives. In the case of everybody else, we overestimate the power of incentives. In the case of persuading inner-city youth to dedicate themselves to lucrative (for us as well as them) middle-class lives instead of lives of crime, our failure is less in providing opportunity (aka incentives) than in teaching them to see the opportunity and believe in it so that it becomes possible for them to work towards it.
I do believe laws should be seen more as a system of incentives than as enforcers of a privileged morality, but laws should be designed to be effective incentives for the people who live under them, not for homo economicus.
I understand the point you're trying to make, but I don't think there is a single country in the world (free or otherwise) that makes it illegal to abstain from vaccination. If there is such a country, please correct me—I simply couldn't find one after a few minutes of research.
The benefits of vaccination for the receiver of the vaccine are usually enough to entice voluntary vaccination. In fact, I'm sure there are plenty of civic-minded people who get themselves (or their children) vaccinated for the benefit of everyone else, too.
The government would only feel compelled to forcibly vaccinate its citizens if people refused en masse to get vaccinated. And that would likely only happen if the cost/risk benefit ratio for getting vaccinated was (perceived to be) unsatisfactory.
In that case, do you really want to criminalize honest, well-intentioned people who are abstaining? I'd say no—that'll create a bitter backlash, because these people don't feel like they deserve to be criminals. Instead, you'd want to educate those people and explain to them why it is worth it to get vaccinated (alternatively, if the vaccine really is too risky, you'd want to improve the vaccine). When honest, well-intentioned citizens oppose something en masse, simply making them all criminals for the common good is likely to make them oppose you, distrust you, and listen even less to what you have to say.
I'm not aware of a country that makes it illegal to abstain from vaccination, but it's bureaucratically difficult in the US once the child reaches school age. I know that the state I grew up in (Virginia) required proof of vaccination upon entering public school. Even my college required proof of vaccination.
Which is something I hadn't thought about when it comes to the anti-vaccination crowd. I wonder what they do when their kids need proof of vaccination for school.
You just need a good reason not to be vaccined, preferably attested by a doctor.
It's not such a rare case I think, and for any vaccine there is be a small percent of children with allergies to one component or are known to badly react to the vaccine.
In many places I know of, it is as simple as a parent writing a letter claiming to be opposed to vaccination on philosophical and/or religious grounds.
My parents were very anti-vaccination and are part of a 'religion' that exempts us from it... all we needed was a note from a 'religious leader' and its done... I'm not vaccinated for anything. The religion is 'The Universal Congregation of Wisdom' (its very chiropractic, my dads a chiropractor... the 'religious doctrine' is pretty entertaining...)
you can join with a letter and like a 200$ donation or soemthing
It's always a possibility, sure, but I doubt that everyone who skipped vaccinations wants to homeschool. The sets of people could even have significant overlap, but I imagine there'd still be a decent number of who skipped vaccinations who don't want to homeschool.
Uruguay (the country where I live) has compulsory vaccination, there's a family undergoing a lengthy trial for their right not to vaccinate their children:
"In Uruguay, vaccination is compulsory. The law states that you must have a current vaccination certificate to go to school and access other services and benefits, such as receiving family allowance payments or process the health card, which among other things enables joining sports clubs." (I'll add that the health card is compulsory for working as well)
They had to go to exile to Argentina
A summary with their point of view (both Spanish and English)
"Imagine in a small town (Tarariras), a family
(Borgogno Arce) which would not give their
children the required shots, because they react with
convulsions and the doctor had recommended no
vaccinating; a school principal—requested by other
parents—that would not admit the children to class
if they didn´t get their shots; the people of the
town—out of ignorance—would point this family
with their finger wherever they went, because they
thought that the parents didn´t give the children their
shots because of religious or ideological reasons; a
government that compels them—without legal
grounds—to give them the shots under the force of
the law; and an exile in Argentina, painful and
humiliating, an offensive alternative to anyone with
a small amount of humanity."
Government states that they didn't want to get vaccinated for religious or philosophical reasons (those are not valid in Uruguay):
"The case was well known and controversial in the country, they would not vaccinated for religious or philosophical issues " said Dr. Savio, a local expert.
Ayn Rand doesn't usually admit any precedent for her ideas, but anarchists and some socialists have had a similar diagnosis since the 19th century. For instance, Kropotkin's "Law and Authority", published in 1886.
I wish that were true, but it's not. Laws are not the only source of unfair leverage. Private enterprise can and does have lots of ways to rule (and screw) even honest people. e.g.:
Exactly, Rand was a master of telling half-truths. While the quote makes sense on the surface, she gently shuffles aside the many economic ways you can control an honest man (denying him food, resources, housing etc).
It's worth publicly observing that the only libertarian movements that I've seen which really attack not just governments but also government-like institutions, are bizarre anarcho-socialist libertarianisms.
I like to put this in concrete terms like so: we get crappy and overpriced food at the TU Delft because the University contracts with a catering service named Sodexo. It's become a point of ritual that our department saunters down to the canteen, orders a dreary meal, and then complains about it. This is the sort of problem which libertarians want to solve with more competition. That's a noble idea, but what competition, exactly? I don't have the freedom to start up a restaurant of my own nearby -- I would need the university's permission. The university is thus in some sense government-like: it owns territory, demands some sort of 'tax' in the form of tuition from the denizens of that territory, probably charges Sodexo certain 'property tax' analogues for operating there, and businesses cannot operate on their territory without their explicit consent. The Men With Guns that I've heard libertarians talk about are sort of there, but a step removed -- that is, if you did try to open up this restaurant you would probably receive a threat and ultimately the police could escort you away; just as might happen if you sit-in on courses without paying tuition and they catch you. The most major difference is that universities can expel you; usually criminals in a nation get imprisoned, not deported.
I guess what I'm saying is, It's not just "economic ways you can control an honest man", but there are potentially many ways to implement an authoritarian state inside a libertarian utopia -- and to me that just sounds like "there's something wrong here." It's like a security vulnerability in a political stance, or so.
I don't know; I don't have the answers. I was a libertarian once and then I got a bit too perplexed by this sort of thing.
I'm a fellow Sodexho hater, but sorry, your argument isn't compelling. While you might not like their food, you clearly find its "value" (taste, convenience, etc) superior to the alternatives (bringing lunch, taking a longer lunch, hanging jobs, etc). You don't have the right to open a competing restaurant inside a McDonalds either; that doesn't make them the Men With Guns.
Well, it's not about what you have the "right to open." If you start using that terminology then anti-libertarians will just start to say, "a government is sovereign and has all sorts of rights on their land, including a right to tax." Suddenly you start saying, "you don't have the right to not pay your taxes either; that doesn't make them the Men With Guns."
That's why I was very careful to say that the curiosity is that many libertarians are perfectly OK with "government-like institutions." The point is nothing to do with Sodexo or even my interpretation of its value -- the point is that what I can or can't do in response is controlled by a bureaucracy called the TU Delft. That's really my focus, not Sodexo itself.
The fact that I accept Sodexo over the alternatives thus has no bearing on this point that, if I wanted to open a competing business to Sodexo, I'd need to accept the authority of (and pay taxes to) an entrenched bureaucracy which most libertarians do not really have any ideological problems with -- the university -- and which would ultimately enforce its own policies with police action where necessary. To the extent that I have an "argument" (and I'd say that I probably don't; I'm probably just wasting time on Hacker News), you have not refuted any of its premises.
If your university sucks, switch to another. Or pursue starting up a new one.
I realize that you aren't saying that your university sucks, the point is that you can change it, it is subject to competition and cannot use possibly lethal force to compel you. My argument would be that with time, since the university is subjected to competition, it will get better or perish (or the whole industry gets "disrupted"). If you have an environment where things are subjected to competition, those government-like institutions will get better. Albeit slowly. Thus the opposition of the large government, since the large government will very effectively hinder hopes of such environment, at least in a libertarian opinion.
It's not that the government-like institutions aren't a problem, but the large government is the bigger problem.
A side note: It is my understanding that one of the aims of the seastanding stuff is to provide more competition between governments.
Another side note because maybe some don't know it: there are major differences in opinion inside groups of people who identify as libertarian in what is an acceptable scope of government, or if it should indeed exist at all (the extreme). Thus the "libertarian opinion" I used is a misnomer.
I guess in the pseudo-analogy (universities are government-like), there is also indeed a pseudo-analogy of the form, "if you don't like your government and its tax system, move somewhere else. Oh, you don't like any taxes? Well what did you expect -- that governance would be a free lunch?" -- and that "oh, you can change your government, it is subject to competition in a quite-unregulated market of international governance" and so on. The larger point is that there is an opposition to governments which isn't opposed more generally to government-like structures -- and that arguments which libertarians would support for government-like structures are ones they would confidently reject for governments. ("I shouldn't have to change governments!" becomes "I shouldn't have to change universities", or "I can't change the government, I'm not a senator" becomes "I can't change the university, I'm not a dean.")
It seems, as you say, that the only distinguishing feature is its size -- that there is no libertarian ideological opposition to big government, because it's the same things that they ideologically support at small scale, but there is just a pragmatic opposition to big government because it is big. So all of the stuff about Initiation of Force is at best inconsistently applied and at worst total crap.
Now that works for most modern libertarians, but I think it would not work for Ayn Rand. More interesting are the libertarians who take a doctrinaire opposition to the government, but it really requires, as I said earlier, an anarcho-socialist vibe of "governments shouldn't enforce real estate regulations or trademark laws, those are already Initiation of Force in some fundamental sense, 'don't walk here or I'll hurt you', 'don't say this name without my permission or I'll hurt you'."
> "It seems, as you say, that the only distinguishing feature is its size"
No. Well yes, but it's confusing to say so, the point is in the location of the government in the "pyramid" if you will, it's the "top dog". If government is not such as to allow competition and is willing to enforce such position, and it's reach is far and wide, the rest of the environment is doomed. In such an environment, there will be no competition for government-like institutions, and they will suck forever and ever.
That is to say, there is no hope in those institutions getting better if you don't have the environment fixed first.
There is nothing fundamentally wrong with those institutions existing, since in a competitive environment they do not have the force to compel you. They may fool you with fashion and fads and reality distortions, but fundamentally they can not compel you with force. And that force to compel is something the government has and doesuse, in fact it asserts a monopoly on using such force.
If some government-like institution has such a force, you can dig down and see that the force is actually granted to it by the government. (this follows from the government's assertion of monopoly on such force)
Since most current governments allow some kind of limited competition, things do usually get a little better very very very slowly, speed depending mostly on the amount of competition allowed. Obviously culture has an effect on how bad it will get if the government's power is great etc. etc.
> "Now that works for most modern libertarians, but I think it would not work for Ayn Rand"
To me Ayn Rand is more like romance novels for libertarian leaning people. Her points are seductive but ultimately lack rigorous substance "in the real world", fun to read though (or watch the movies, or listen to, since there are some songs that have some quotes in the lyrics). So I don't really care if some argument would work on Ayn Rand or not. It is my understanding, from n = a small number, that similar positions are not rare. Very cautious attitude is also exercised towards other cult-ish stuff like stefbot.
> "More interesting are the libertarians who take a doctrinaire opposition to the government, but it really requires, as I said earlier, an anarcho-socialist vibe of ... those are already Initiation of Force in some fundamental sense"
To me, that has an anarcho-capitalist vibe, granted this is probably because of difference in social scenery. I do know that the anarcho-socialists have similar arguments, I'm mostly familiar only with Chomsky's. Btw. anarcho-capitalists are infuriating and interesting to talk to.
Wow that's a lot of text for a point that is so clear in my head. I hope it gives you a plausible explanation why some reject the government but not the government-like institutions.
I guess what I'm trying to say is, "look one level down." You're very concerned with who has the monopoly on force, but that's not actually vital to your concerns. What the government, or a government-like institution, does that you don't like is not "have a monopoly on force" but rather "arbitrarily prevent competition." You say "If government is not such as to allow competition... the rest of the environment is doomed." That's just as true at the level of these government-like institutions. They control an environment and can certainly doom it.
I think your response earlier took the form "not so! there's an entire environment outside the university which does not necessarily suck!". But there's also an entire environment outside of your present government that does not necessarily suck. A modern state isn't much more than a bureaucracy tied to territory. (There is a pretense of independence from other institutions but in reality that can often be compromised by military actions, treaties, and sanctions.) To be fair, since World War II the countries of this world have gotten much more shy about letting people cross their borders, and it's much less like driving into the university quad and a bit more like requiring swipe-card access and ID to enter a university cleanroom. But let's not mistake rights exercised with rights possessed.
Actually, most of this way of thinking comes to me from stefbot. Stefan Molyneux is... well, let me put it this way: when he says something I agree with, I become much more skeptical of that thing: so I actually treat him as having a negative correlation with reliable knowledge. This happened most prominently when I started reading his tome on objective moral facts. I would like, on a good day, to believe in objective moral facts. This has been shaken by reading his work which attempts to prove them.
So, like, if you just listen to the very first Freedomain podcasts, he seriously constructs a totalitarian government-like dystopia inside of a libertarian minarchy, and all the while he seems to be perfectly happy about this embedding. I will confess that I had given up Objectivism many years before I first heard this podcast, and no longer considered myself a libertarian at this point, but this was the moment where I started being really skeptical of the libertarian promise. That is where I started to think about to what extent libertarians really oppose totalitarianism, if it can exist in government-like examples.
Maybe this phrasing of the problem goes too far, and it's only a suspicion: but it almost sounds like 90% of libertarian philosophy would be thrown out of the window if the government phrased its position like, "(1) we own all of this land, we just sublet it to the nominal owners for a rent that we call property tax, (2) you are only allowed to be on our land if you agree to our terms and conditions, which includes laws and income taxes, (3) you may at any time opt to be kicked out of our country permanently, rather than being imprisoned etc."
The difference between the ancap and the ansoc, and the reason that I find the ansoc view really interesting, is that the ansoc feels free to say, "yeah, that's all total crap because the government can't own the land either." By saying that the government obtained its "rule" over the land by being a big bloody bully, and questioning that legitimacy, anarcho-socialism actually has something of a place to stand. But it's about as radical as the Buddhist doctrines of no-self and emptiness, and I'm not sure that such a powerful negation is a wise idea.
Indeed, maybe more weight should be given to opposing such institutions. Though I'm still not convinced that the government should not be fixed first, and indeed I think that it is required to do so to be able to fundamentally affect those govt-like institutions.
I think your policy with stefbot is very healthy.
> ".. who has the monopoly on force, but that's not actually vital to your concerns."
> "...but it almost sounds like 90% of libertarian philosophy would be thrown out of the window if the government phrased its position like, "(1) we own all of this land, we just sublet it to the nominal owners for a rent that we call property tax, (2) you are only allowed to be on our land if you agree to our terms and conditions, which includes laws and income taxes, (3) you may at any time opt to be kicked out of our country permanently, rather than being imprisoned etc.""
This is a great observation, though I do not agree completely. I feel that this applies to ancap very much and the only argument I've heard that could be applied here has been "But it would result in better situation overall if the govt was successfully opposed, even if new ones arise", and that is not very convincing indeed if the resulting situation will fall back to suck (democracy by anarchy as I've heard it called). If someone here is ancap I'm very interested in their response to this.
The reason I do not agree is because there is no real way of you creating your own government/country to compete with the existing ones, for the land area is limited and the governments are asserting that monopoly on force you find non-vital on their respective areas (if they weren't asserting it, how would they exist, thus it is indeed vital by definition). I guess I'm saying that you don't have the right to claim ownership and assert it by force if it makes you immune to competition (also, I now realize, patents). This separates govt-like institutions from governments. Go ahead and pick it apart, please, I just pulled it out of my bag by following my own reasoning.
But indeed, because of discussions like this, my mind might be very different tomorrow.
> "... he seriously constructs a totalitarian government-like dystopia inside of a libertarian minarchy, ..."
Yeah this is something one has to be constantly aware of. And it's actually surprisingly easy to be aware if one has the luxury of having smart people care enough to listen to you, but very hard otherwise. The thing to be aware of is that many have their thoughts about the perfect government, but ultimately you would have to be a totalitarian dictator to actualize them. You forcing people to live in your ideal is fundamentally no better than others doing so. A realization I've seen linked to Voluntaryism, which I feel has similar emptiness you describe with ansoc, but I'm really not knowledgeable enough to say anything of actual value about it.
Following this forward, one ends up in the dilemma, if I oppose government power, how can I uphold belief that I have the right to decide for others? After all changing a government to minarchy would be forcing it's current inhabitants to live in it or move away, and some of them might be democrats who do not want that minarcy of yours. Can I really believe that I have the right to do this?
Either one has to appeal to reasonableness and practicality, and that is very very suspect, much like a big furry frightening monster offering candy, or one turns his/her thoughts on to ancap or ansoc or voluntaryism or something else, all of which have their own problems, some of which were very briefly touched in this discussion. And again we are back in thinking about our ideal world. Frak.
I think we're totally on the same page. Sometimes when I talk about 'fixing the system' by 'reinvigorating our institutions' people will ask "Which institutions?" and one of them is the judicial system.
If you combined the author's idea of everyone requesting jury trials, with a widespread outreach and education about jury nullification, it would be a really interesting thing to watch. When the people were speaking directly through the process as to what they the people felt should be illegal and what wasn't.
Yes it would be chaotic, the question though is if we could exit that chaos into a better place.
If everyone requested jury trials the "chaos" won't be some brilliant revolution, the chaos would be everyone wasting their time on the vast majority of cases that are open-and-shut.
The other thing is that jury nullification isn't a "thing". It's not in the law or in the Constitution. The reason that juries can vote their conscience and nullify is a side effect of the sanctity of a jury trial. Juries can also vote based on the latest baseball game results, if they wanted. And judges absolutely have the right to instruct juries not do do this.
I also think you'll find in practice people tend to support the system. Not everyone lives in your ideological pocket of reality, nor is it necessarily right to imagine they will once they are subjected to "widespread outreach and education". Everyone's got their own pet imaginary revolution and I think part of the reason people live in their own little mainstream-ish bubbles of reality isn't foolishness--it's a defense mechanism against every ideologue demanding their attention.
I think this article's gist is that the American judiciary is leveraged and thus vulnerable to disruption. The solution advocated, loosening laws to decrease case volume, is probably better than the alternative of directing more funding to the courts and prison system.
This systemic leverage pushes the judiciary to do unsavoury things, such as courts increasing penalties for those who choose trial by jury and over-zealous AGs putting elections above fairness.
It may be hyperbole to call shining light on potential civil liberty abuses petty.
>people tend to support the system
As of 2011 the US judiciary stood at 63% approval [1] - this is a good, especially when compared to Congressional approval, but the lowest since 1973. People also tend to pay less attention to the judicial than executive and legislative branches.
Applying the concept of leverage to the legal system is intriguing.
Leverage compels the innocent to plead guilty, and the thought exercise of "crashing the system" will not work because the stakes are too high. There's usually evidence such that a refusal to plead guilty will not affect the outcome very much. Applied to purely innocent suspects, there is no guarantee that refusing to plead will result in a not guilty verdict.
The same sort of problem is present in the investment markets. The fact that something might be over-leveraged as the fundamentals deteriorate does not guarantee profits if you try to short. To quote Keynes, (possibly the one thing he wrote that I whole-heartedly agree with) "Markets can remain irrational far longer than you or I can remain solvent."
It's quite possible that overworked juries and judges would wrongly convict more people by rushing to judgment if they had 10 times the caseload.
Crashing the over-leveraged legal system by flooding it with not guilty pleas may not cause the system to blink; instead, it might cause the courts to degenerate into a Kafkaesque nightmare.
I think he means it the same way: "If everyone wants what you owe them at once, you're hosed." This goes for people buying stocks on margin as well as for the justice system, which in theory owes each defendant a jury trial, but in reality only has enough bandwidth for 10% of them.
> nor is it necessarily right to imagine they will once they are subjected to "widespread outreach and education".
This. Proponents of jury nullification seem to think that a juror needs to have revealed from on high the idea that a jury can decide to flout the law and issue whatever verdict it wants. The reason why juries don't do this isn't because their minds can't conceive of this fact, but because the majority of people understand the importance of rule of law, and that they have a responsibility that extends beyond the scope of the case at hand.
> the majority of people understand the importance of rule of law
But it is precisely because of the importance of the rule of law that the enforcement of unjust laws, or the enforcement of a law that may be broadly just but fails to be so in a particular circumstance, must be resisted.
I don't know that the majority of people have really stopped to reflect on that.
I just read a good book that advocates jury nullification in non-violent drug cases: Let's Get Free, A Hip-Hop Theory of Justice, by former federal prosecutor Paul Butler. In areas hit hard by unjust drug enforcement, it could catch on.
The great thing about jury nullification is that there's no collective action problem. A single juror can make a difference for one case.
So the best approach is probably to pick one vulnerable jurisdiction (with little excess capacity), focus first on jury nullification to reduce the risk of jury trial, then work on reducing plea bargains.
I think it's less conspiratorial than that. One concept the Ayn Rand fans could do better to consider, in both the private and public sphere, is that of "emergent outcomes".
If you're on a jury, are you going to listen when the judge tells you that you have to convict if you conclude that the person charged did in fact have drugs on them? Or are you going to judge the law (one purpose of the jury) as well as the facts, and stand proud and hang the jury if you're unable to convince them the drug war is immoral? Are you willing to lie on the jury questionnaire in order to get on the jury in the first place (since the questionnaire is designed to weed out people who will be immune to the jury tampering judges regularly engage in with their instructions.)
Or do you recognize this as immoral, but still think that the "justice" system itself IS moral because... its the government?
What does law have to do with morality? Laws are rules that we as citizens agree to follow (even if we disagree with them) in an effort to produce a cohesive society. We can seek to get laws we disagree with changed, but you cannot advocate a society in which we follow only the laws we like.
(Unless you are disobeying laws as a form of protest, in which case you accept the punishment. That's how civil disobedience works, you can't skip the punishment because you don't like the law.)
The law being objective does not change the fact that the law is _acting_ in this situation and there is no sense in which the cop can be termed a criminal.
That is to say, a cop on a power trip is legal if he doesn't get caught. It is the _law_ that is on a power trip in that case.
We use the word "illegal" to refer both to things that have been punished and things that could be punished.
When the law is corrupt, nominally illegal things become nebulously legal.
- It requires solidarity by criminal defendants, many of whom will go to jail for a long time absent a plea agreement. It is literally, the prisoner's dilemma.
- Absent posting bail, you stay in jail until you go to trial (which can be a long time in a scenario where everyone is in fact going to trial). The "excessive bail" clause of the 8th Amendment, in practice, has been eviscerated. Bail is routinely set so high that the only way it is affordable is to pay a bondsman. This means that it's easy to punish people prior to a trial for exercising their rights. A stay in jail prior to trial can be as or more destructive than being convicted - you likely lose your job, your housing, possibly custody of your children, all without any process.
The judicial system has ~ a thousand years practice at maintaining control and getting the outcomes (overall) that the State desires. It is not a simple matter to "force" it to do anything.