When government can’t enforce its own laws
Can we judge whether a law is good or bad based on:
- its impact on privacy?
- whether it shifts the burden of proof from the government to the accused?
I was taught early on that a good law is one that’s easily enforceable. If a prosecutor can’t obtain evidence to establish a criminal case without having to invade individual privacy, and can’t successfully prosecute without relying on a reversal of the burden of proof, then the law in question is probably a bad law.
Over at Catallaxy, a commentator puts forward the example of the hugely expensive War on Drugs. He asks whether the burden of proof should be reversed in situations where enforceability is difficult:
It does however occur to me that the reversal of the burden of proof might be necessary in certain instances. For example I found out that Indonesian law, which was widely represented as reversing the burden of proof generally during the Corby trial, actually only does so in certain instances - like drug smuggling. This also happens here in Australia.
You can see the reason. All a drug runner has to do to escape prosecution is ensure that their fingerprints, DNA etc are not amongst the cargo and they can argue that it was a plant. Very hard for the authorities to make a case beyond a reasonable doubt in that event. There is also the exploitation of the burden of proof by criminal organizations like the Mafia which are collective emblems for the subversion of liberty, freedom and the rule of law. For those of us, and those in law enforcement it must be pretty frustrating to see these phenomena twisted in such a way.
Drug laws are difficult to enforce and fail both of the above tests. Enforcing them requires the government to invade the privacy of individuals and there is constant tension between the dictum of ‘innocent until proven guilty’ and overzealous authorities. The overall case for legalising drugs is already pretty persuasive, but in addition, current drug laws fail the test of natural justice.
Interesting comments Sukrit.
I would say, just because something is hard to prosecute doesn’t mean it shouldn’t be illegal, eg/ proving lack of consent in rape is very difficult when it’s one person’s word against anothers.
But at the same time, just because something is hard to prosecute doesn’t mean the burden of proof shouldn’t be on the authorities, ie: presumption of innocence should remain.
The increased anti-terrorist powers of ASIO and federal police come to mind as walking a fine line here, especially considering their ability to invade our privacy by searching houses without warrants and phone tapping. Drug dealers are often busted by phone surveillance as well.
Good point. I don’t think burden of proof issues have much to do with whether an act should be a crime or not.
But yes, there are many good reasons to abandon the war on drugs - it is all one big intrusive, resource eating, prison cell filling, privacy invading, mess.
I think determining where the burden of proof lies is a useful way to determine whether a law accords with the principles of natural justice.
For example, Australians are assumed to be mass murderers or criminals before comitting any wrongful act. Hence, we are denied a gun for self-defence because of the risk we pose to society.
Similarly, the income tax laws assume you will evade tax and so compel banks to disclose details of your financial affairs to the government. The income tax is a bad law in principle, because it invades privacy and presumes guilt. It’s also economically undesirable, but that’s a separate point.
“All a drug runner has to do to escape prosecution is ensure that their fingerprints, DNA etc are not amongst the cargo and they can argue that it was a plant. Very hard for the authorities to make a case beyond a reasonable doubt in that event.”
Given the scientific, and forensic investigational abilities available to the state lack of any evidence of contact by the accused, with the criminal evidence probably does mean innocence.
If the state wishes to argue that the evidence was not planted then the state should be required to prove it, not for the accused to prove that it was. A state has far greater investigative tools available to it than Fred Nurks, so why should Fred be required to do all of the work.
There is no more virtue in reversing the burden of proof than there is in falsifying evidence, probably less as the victim of the false confession has a better chance.
What’s next, “Bring in the guilty bastard.”
If the judge tells the jury that the burden of proof of a particular point is on the accused, and if the jury ignores that instruction and consequently acquits, the verdict is binding and no retaliatory action can be taken against the jurors. That’s one reason why verdicts are decided by lay juries instead of judges or professional assessors. (Similarly, a jury can decide that ignorance of the law is a defence, no matter what the law says. And a jury can decide that a whistleblower is allowed a public interest defence, even if the law says otherwise; etc., etc.)
“I was taught early on that a good law is one that’s easily enforceable. If a prosecutor can’t obtain evidence to establish a criminal case without having to invade individual privacy, and can’t successfully prosecute without relying on a reversal of the burden of proof, then the law in question is probably a bad law.”
Laws against Rape would fail that test. That doesn’t mean we should make rape legal.
I think you need a better argument than this.
Rape is a rare exception to the point that a good law is easily enforceable.
Traffic laws, drug laws, firearms laws and terrorism laws are all difficult to enforce for one reason or another. None are good laws.
War on drugs….when will that start? All we’re (the state) doing is trying to prove we’re through and through thorough gentlemen when it comes to crime. Have you got legal representation sir? Is Foxtel platinum available in your holding cell sir? What’s that….your prison food is not culturally appropriate. We’ll initiate an investigation and sack the chef.
Some war.