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Fixing the worst law in technology

newyorker.com

51–60 of 61 posts

Re: Fixing the worst law in technology

#51

Earlier quoted context omitted.

>if they said 'the statutory maximum is 25 years but most convictions draw sentences of less than 5 years,' people would not think it's that big of a deal. I imagine people convicted of manslaughter also don't typically serve anything like the statutory maximum. But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published and compared to penalties f…

But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered. You can't go complaining about the length of the maximum sentence and the…

>Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered.

I think it's more of an issue that the truth is complicated and a journalist can't cover a story in the detail you might like without losing too many readers to "TL;DR" or spending more hours to research it than the editor has assigned for the story. The typical sentences handed down are by far not the only important thing left out of articles like this. The things missing from these articles could span volumes of books. And each one of them needs to be put into context. If you discuss the typical sentences handed down then they ought to be compared to the sentences handed down for other similar offenses, or to the offenses that have similar typical sentences, and a thorough treatment would go down the rabbit hole into plea bargaining and sentencing guidelines and the whole works. But given limited resources and limited column inches, instead we end up with heuristics like using the maximum penalty as a proxy for the severity with which the law treats the behavior.

Whenever there is a popular push to change the law, most people aren't going to understand all the details. People don't have time to learn everything about everything. At some point the layman will have to defer to someone trustworthy (like the EFF or the ACLU) to do the legwork and then adopt their position on the strength of their reputation. They need to get down into the weeds and make sure they understand what's going on, but they aren't the ones getting their information from popular media, they're the ones reading the statutes and the case law and engaging in discussions with scholars and legislators etc. Articles in The New Yorker aren't meant for those people, they're meant for the man in the street who needs to be made aware that something is going on and the people who have done their homework are saying it's a problem and we should do something about it. That way a critical mass of people willing to support doing something about it can be achieved, even if it isn't possible for all of those people to each be individually aware of every nuance of the issue. If someone wants to know more then the information is available. Anyone so inclined can look it up. But most people won't; I don't see any obvious way around that. And an article that skims over some of the details for the sake of brevity and approachability is a lot more likely to be read by those people, so that at least they know that something is happening and maybe some subset of the currently-oblivious can be inspired to learn more.

>Not every offense prosecuted under CFAA is a felony; in many cases defendants are charged with a misdemeanor instead.

I'm not sure how that changes anything. That some cases are prosecuted as misdemeanors or in an otherwise unproblematic fashion doesn't mean we can't do better in the cases that aren't. And if many of the cases prosecuted as misdemeanors could under the law have been prosecuted as felonies but for the grace of the prosecutor, that still points to a problem in the law.

Re: Fixing the worst law in technology

#52

Earlier quoted context omitted.

"He's charged with the faithful execution of the laws, not their interpretation." In practice, though, the executive can pick and choose enforcement priorities. Case in point: the DEA ramped up the effort against medical marijuana in California after the Obama administration made a deal with the pharmaceutical lobby, to win support for the Affordable Care Act. Within two years, the Obama administration's DEA had raid…

Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible. Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but. Your misrepresenting my position on law enforcement; I pointed out a critical logical flaw in the OP, which is the…

"Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible"

Is the combination of the administration's dealings with the pharmaceutical industry's lobbying group, PhRMA, and the fact that during the same period of time that those deals were being made the administration became more aggressive on marijuana raids, count?

https://www.nytimes.com/2012/06/09/us/politics/e-mails-revea...

http://reason.com/archives/2011/09/12/bummer/singlepage

Unfortunately, the extent of the administration's deal-making with the pharmaceutical lobby remains undisclosed. Why the public has not been given access to their emails is anyone's guess (I suspect most people would guess the same thing). Maybe in a few decades, when the full details of this administration's activities become public knowledge (assuming such things even happen), we can figure out if the simplest answer -- that the administration attacked marijuana in a quid-pro-quo with PhRMA -- is indeed the correct answer.

"Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but."

Are you actually claiming that nearly overnight, the number of medical marijuana dispensaries increased by more than a factor of four? That somehow, the number of suppliers in California simple increased by pure coincidence in 2009?

This administration has been one of the most aggressively anti-drug-law-reform administrations in the history of the war on drugs. The President has publicly (and falsely) stated that it is up to Congress to legalize marijuana. He falsely claimed that he would suspend raids once he ejected Bush administration holdovers from top DEA positions, only to appoint Bush administration holdovers to those positions and increase the number of raids.

Re: Fixing the worst law in technology

#53

Earlier quoted context omitted.

"OK, but any journalist writing on legal matters should know that the statutory maximum is not a good guide to the likely sentence in the event of a conviction" It is, however, frequently used to intimidate people into giving up their rights. There is a reason that more people go to prison each year than could possibly be sentenced by a jury of their peers, and the maximum penalties allowed by the law is one of them.…

Maybe if journalists reported the law more assiduously instead of only mentioning the maximum sentence, that particular intimidation tactic wouldn't work as well, ever think of that?

Journalists accurately report the actual sentences given to convicts. That is pretty easy to forget after hours of police aggressive interrogation, when you are presented with the choice between a quick guilty plea for a few years or a trial with a maximum sentence remaining on the table. You might think that you'll be sitting there in an interrogation room, ready to stare down the cops when they threaten you with decades of jail time; it's a different matter when you are actually under arrest.

The tactic works because of human psychology. Being in an interrogation room is terrifying, and people have a natural instinct to try to get out as soon as possible. The police interrogators are trained to extract confessions and play on those instincts and the general fear their subjects experience. The problem is not the press, it is the interrogation and plea bargaining process itself.

Re: Fixing the worst law in technology

#54
post #41

Earlier quoted context omitted.

>To mention the statutory maximum without any qualification is sensationalism masquerading as cold fact. If may be misleading, but strictly speaking it's factually accurate. That is the maximum penalty -- and as long as it is, people who don't like it are going to report it. If you want them to stop, amend the law so that minor offenses don't fall under the same section as major offenses. For a law to carry felony pe…

"Strictly speaking", in Minnesota where I am currently located, oral sex is prohibited, and is punishable by up to a year in jail and a $3,000 fine. Would you seriously defend an article that discusses this as "factually accurate"? Honestly, people keep going through incredible mental acrobatics to justify Aaron Swartz's actions.

>Would you seriously defend an article that discusses this as "factually accurate"?

Is it not factually accurate? Could local law enforcement not arrest you for doing it and subject you to a trial or try to coerce you into a plea bargain, if they didn't mind the response from the public or the courts?

Moreover, would you not oppose an effort to remove such a law from the books? How do you imagine anyone would lobby for that to happen without discussing it?

Re: Fixing the worst law in technology

#55
post #46

Earlier quoted context omitted.

>This is lousy journalism, which misleads the audience in an attempt to pander to their sensibilities. There is no way the author of this piece ran it past a lawyer. Does a law professor at Columbia count as a lawyer? Because that's what the author of the piece is =)

That makes his misrepresentation and manipulation of his audience even more reprehensible.

You're a friend and I love your writing on this site. But that right up there was a bit of a setback for your argument. :)

Re: Fixing the worst law in technology

#56

Earlier quoted context omitted.

Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible. Also, your claim implicitly assumes that the number of dispensaries was static, when it was anything but. Your misrepresenting my position on law enforcement; I pointed out a critical logical flaw in the OP, which is the…

"Do please cite evidence for this claim about the Affordable Care Act. I've been a long-time advocate for MMJ and have lobbied for it in front of county lawmakers, and I don't find this very credible" Is the combination of the administration's dealings with the pharmaceutical industry's lobbying group, PhRMA, and the fact that during the same period of time that those deals were being made the administration became m…

No. That's a post hoc fallacy, or as it is commonly referred to around here: 'correlation does not prove causation.'

And yes, the number of dispensaries did shoot up in a relatively short period. Los Angeles in particular turned into a free-for-all, with estimates of up to 1000 operating in LA county at one point, much to the chagrin of the NorCal MMJ community that has been pushing for legalization. Indeed, all the legal and industry advisers at Oakland's Oaksterdam University (of which I am a graduate) predicted in advance that the LA dispensary gold rush was on a collision course with the LA county authorities, which is exactly what happened. And while the feds conducted investigations up here in Norther California, it's worth bearing in mind that they didn't actually shut anything down - Oaksterdam university is still taking students, major dispensaries like Harborside remain open and so on. If you look at the record of small dispensaries shut down in Northern California (where I live and pay more attention) you'll see that in almost every case it involved weapons charges or non-payment of taxes.

This administration has been one of the most aggressively anti-drug-law-reform administrations in the history of the war on drugs.

Yeah, just look at the abolition of the crack sentencing disparity.

The President has publicly (and falsely) stated that it is up to Congress to legalize marijuana.

This is correct. The President can direct the surgeon general to reconsider a drug's scheduling, but a great many substances (including marijuana) are explicitly proscribed in federal legislation.

Clearly you have an axe to grind, but I suggest you grind it a little more carefully.

Re: Fixing the worst law in technology

#57

Earlier quoted context omitted.

But we calibrate our expectations and sense of proportionality based on the maximum because that's the number that gets published Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered. You can't go complaining about the length of the maximum sentence and the…

>Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered. I think it's more of an issue that the truth is complicated and a journalist can't cover a story in the detail you might like without losing too many readers to "TL;DR" or spending more hours to researc…

Look, I get it, you want to change the law and I agree with you in many regards about the necessity of doing so. But you can't dumb your way down to success over the long term, and misleading your readership is neither effective nor ethical.

Re: Fixing the worst law in technology

#58

Earlier quoted context omitted.

Maybe if journalists reported the law more assiduously instead of only mentioning the maximum sentence, that particular intimidation tactic wouldn't work as well, ever think of that?

Journalists accurately report the actual sentences given to convicts. That is pretty easy to forget after hours of police aggressive interrogation, when you are presented with the choice between a quick guilty plea for a few years or a trial with a maximum sentence remaining on the table. You might think that you'll be sitting there in an interrogation room, ready to stare down the cops when they threaten you with de…

Journalists accurately report the actual sentences given to convicts.

My whole point is that such data are missing from this article, despite their relevance.

The tactic works because of human psychology. Being in an interrogation room is terrifying, and people have a natural instinct to try to get out as soon as possible.

I've been in one. I found it annoying rather than terrifying, but that's obviously not the case for many other people. For all its flaws, sitting people down and asking them uncomfortable questions is one of the better techniques we have for solving crimes, and I find it vastly preferable to the use of things like truth serums or lie detectors.

Re: Fixing the worst law in technology

#59
post #55

Earlier quoted context omitted.

That makes his misrepresentation and manipulation of his audience even more reprehensible.

You're a friend and I love your writing on this site. But that right up there was a bit of a setback for your argument. :)

I agree, but I don't think I'm going to change my mind about it :-)

Re: Fixing the worst law in technology

#60

Earlier quoted context omitted.

>Well, this is the problem - it's often the only number that gets published, because it makes for a better story than qualifying that sensational number with the rather less exciting reality of sentences administered. I think it's more of an issue that the truth is complicated and a journalist can't cover a story in the detail you might like without losing too many readers to "TL;DR" or spending more hours to researc…

Look, I get it, you want to change the law and I agree with you in many regards about the necessity of doing so. But you can't dumb your way down to success over the long term, and misleading your readership is neither effective nor ethical.

Well I'm open to suggestions. How do you get a million instances of Joe Bloggs to appreciate the subtleties of plea bargaining negotiations without causing them to change the proverbial channel?
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