Cops, prosecutors, or grand juries use their discretion and judgment and turn a blind eye as necessary. It's really not that complicated as long as people operate in good faith and use common sense.
In the long run, does that seem like a very good thing? While we might think it's good that Joe the pot dealer doesn't end up with his life ruined, having a judiciary (and enforcement infrastructure) which decides, on their own discretion, to turn a blind eye is similarly empowered to throw out cases of abuse. In the short term I guess it's OK to have some crimes punished lightly, but a better long term solution seems like it's to fix the laws to reflect our desires.
Oh man, if only there was a punchline here. I'm not sure how to respond to this, so apologies in advance if I come off condescending or dismissive or mean or long winded.
Here's the thing, that boat you're talking about? It sailed a long time ago, perhaps half a century ago in fact. Modern law enforcement is all about discretionary enforcement, at every level from the cop on the beat up to prosecutors and judges. We do not live by the rule of law any more, that is a polite fable. We are drowning in laws and their discretionary enforcement shapes our de facto legal and political landscape. Consider the ideal: laws are intuitive and easy (let's settle for possible, even) for everyone to understand and abide by; laws are enforced even-handedly by a police force which serves the public interest; trials are speedy, fair, and performed in a manner which maximizes the exposure of the truth; if insufficient evidence exists the accused are let go, if sufficient proof exists that the accused committed the specific crime then they are found guilty; with the aid of common sense and sound judgment the guilty is kept separated from society for an appropriate period of time to protect society, to punish, and to provide an opportunity for rehabilitation; when the guilty has been rehabilitated and is safe to re-enter society they are released.
Now, compare this to reality. Firstly, it is impossible for any citizen whatsoever to fully understand the laws they are subject to, let alone an average citizen. For example, let's say you are returning from Honduras and you wish to bring back a few lobster tails that you have caught. Does it matter how long the tails are? Does it matter whether or not you put them in a bag or in a box? As it turns out, it does. If you bring back tails that are longer than 5.5" in length and you pack them in a box, you'll probably be fine. If you accidentally have a few shorter tails in the group and if you use a bag to transport them then you could be put in prison for 8 years. This is not hypothetical, this is a thing that happened. Incidentally, 8 years is more time than one would expect to serve for being convicted of sexual battery, for example.
Let's move on, we could spend all day on just that issue alone. Let's look at police and prosecutorial discretion. Because of this massive profusion of laws this, of course, leaves a huge amount of discretion at the hands of agents of the criminal justice system. Consider, for example, the war on drugs and asset forfeiture. Without much due process if an asset (such as a car, a boat, or a house) is used in connection with the manufacture or sale of illicit drugs then that asset can be seized by the police and then sold at auction (or retained for departmental use). This provides an incentive for the police to enforce certain laws more than others because doing so can lead to an increase in the funding for the department. Now let's look at prosecutors. Today trials are not the norm, plea bargains are the norm. It's not what you're guilty of, nor what you can be proven guilty of, it's how much the DA wants to stick it to you, how much they care about prosecuting the general class of crime you are accused of, and how much time and effort they have. Whatever the penalty is on the books for the crime you're accused of is irrelevant, the amount of time you'll actually serve is typically in the hands of the prosecutor and entirely up to whether they want to make a deal. Guilty of rape? Maybe you're a nice guy with a skin tone that stirs feelings of compassion in the DA so he or she will agree that instead of going after you for rape you'll just plead guilty to a far lesser charge like "indecent liberties".
Consider this at a higher level. If you fail to pay your taxes, what happens? Well, you get put in jail of course, or at least heavily fined and punished. Unless you are a candidate for a federal cabinet office, in which case you simply make an excuse, pay your back taxes, and nothing happens. Is this equal justice? No, it is a different standard of legal enforcement based on class and membership in the elite.
Meanwhile, if you do go to court the chances that you'll get a decent attorney who cares about your well being and has enough time to actually work on your case competently is not as high as you'd hope. And the rules for evidence, "scientific" testimony, and witness reports are archaic, convoluted, and based on nothing resembling scientific or rational rigor. Consider that people have been convicted of serious offenses such as rape and murder based on the testimony of a single eye witness. Consider how many people are exonerated and released from prison each year due to the discovery and testing of new evidence or re-examinations of their cases.
Now consider prison. It does little to rehabilitate anyone, at best it is a punishment that the released live in fear of experiencing ever again. Recidivism rates for violent crimes are at about 60% in the US, and for property crimes such as burglary it's even higher. Prison culture is not a healthy culture, and we take the guilty and steep them in that culture for years and then release them back into society. This is madness. People are more likely to develop habits concordant with deviant and unlawful lifestyles, to make connections with criminal networks, and to learn new criminal skills in prison than to learn how to function properly in the peaceful world outside. Worse yet, rape and sexual assault is rampant in our prison systems, and this becomes a trauma that many inmates are forced to deal with and makes it even more difficult for them to integrate into civil society. It also leads them toward the path of self-medicating their emotional and mental pain through the use of drugs and alcohol (and perhaps even adrenaline, through engaging in violent activities and crimes). This does not describe a system that works, it describes a barbaric system that is perhaps just as much responsible for the ills of society as the innate evil that exists in the hearts of some men.
This is the system as it exists today. Everyone is a criminal. Everyone is a felon. Many times over. And our place in society, the perception of our actions by the agents of the criminal justice system, and so forth determines whether or not such omnipresent criminality will be prosecuted to the utmost, negotiated down to a different tier of consequences, or simply ignored.
This is the world we live in, and have for decades. To label it as a police state is not quite apt, but to label it as some sort of monster that is an enemy to the advancement of human civilization would be supremely justified. But it is a monster we are perhaps comfortable with, and a monster that we are so familiar with that we do not even recognize it exists even when it is right there in front of us every hour of every day, we just let our eyes slide right over it and pretend it doesn't exist.
Amazing and horrifying, this post should be required reading for anyone concerned about the rule of law. Could you post this on a blog somewhere and resubmit it so that it gets the amount of discussion it deserves?
"Eventually it was discovered, that God did not want us to be all the same. This was Bad News for the Governments of The World, as it seemed contrary to the doctrine of Portion Controlled Servings. Mankind must be made more uniformly if The Future was going to work. Various ways were sought to bind us all together, but, alas, same-ness was unenforceable. It was about this time, that someone came up with the idea of Total Criminalization. Based on the principle, that if we were all crooks, we could at last be uniform to some degree in the eyes of The Law. [...] Total Criminalization was the greatest idea of its time and was vastly popular except with those people, who didn't want to be crooks or outlaws, so, of course, they had to be Tricked Into It... which is one of the reasons, why music was eventually made Illegal."
