The Problem With Law

Eric Balderas is a Harvard University student from San Antonio, Texas. He is also an illegal immigrant. He was detained recently at a Texas airport and is facing deportation to Mexico. Immigration advocates are up in arms. Anti immigration activists are scrambling to address the embarrassment and awkwardness of their insistence on tough immigration laws. Balderas is studying molecular and cellular biology at Harvard on a full scholarship. His goal is to become a cancer researcher.

Balderas bears some of the blame for his predicament. Despite his claim that he is a "private person", Balderas attended the "Coming Out Day" organized in March where those in the U.S. illegally publicly announced their violation of U.S. law. In essence, they dared the government to enforce the law. The government accepted the dare and enforced the law. Balderas is paying the price for his action. Nevertheless, Balderas' plight reflects a fundamental problem with law.

Law, particularly English law, has long contained the element of equity. Equity allows particulars and circumstances to be taken into account in the application of law. The particulars in Balderas' case are his motivation, his intelligence, his work ethic, and his achievement. Unfortunately, those factors are only rarely taken into account by the law as it has come to be understood.

Equity has been criticized, with reason, as subverting the basic fairness of law, viz that the law applies equally to all people at all times. To take person or circumstance into account is to open the door to a subjective application of the law. In a sense, it allows judges to interpret and apply the law as they see fit. The benefit to this approach is that it allows flexibility and fairness. While the law remains the same, the particulars surrounding the law do not. Different people violate the same law in different ways, under different circumstances, to different ends. Under this concept of law, a man who robs a bank to obtain funds needed for an operation to save the life of his child can be treated differently than a man who robs a bank to support his drug habit,. The same law is broken but the circumstances are very different. Equity allows the particulars of the case to be considered. The man who robbed the bank for drug money could be judged differently than the man who robbed it to save his ill child. There is a sense of fairness understood to apply here.

This approach has fallen into disfavor. Historically, the prerogative allowed under equity has often been abused. The most egregious examples would be the cases where white defendants were given minimal sentences for crimes committed against blacks whereas blacks who committed the same crimes against whites in were sentenced severely, even hung. To the minds of most southerners, this was not wrong. Indeed, justice demanded it. Blacks and whites were different. Justice demanded that they be treated differently. The outrage such "justice" engendered led to support for impartial, objective application of the law. Murder is murder and all murderers should be punished the same regardless of time, place, and circumstance.

The result was a new inflexibility due to a swing back towards, uniform, "objective" application of the law. Judicial discretion and jury sentencing became viewed with suspicion as subjective and partial. As a consequence, mandatory sentencing laws became popular. They removed judicial discretion in an effort to apply the law uniformly and without regard to person or circumstance. Law was no longer allowed to take particulars into account. The law would be applied to junkies and desperate parents alike. Judges and juries became part of a machine. Facts were to be put in. Laws would be applied. Justice would be administered. Sentences would be selected and handed out.

This is the situation we frequently find ourselves in today. Because of the mistrust of courts, juries, and judges, the law is to be applied mechanically. Balderas is to be treated like any other illegal immigrant. To do otherwise would be "unfair". The law will not admit a distinction between a Harvard University student and a migrant farm worker. The irony here is that those most upset at Balderas' situation are the same who originally championed the objective application of the law over judicial discretion. It is those who opposed the taking of particulars into account who are now demanding that particulars be taken into account.

You cannot be forever amending the law to take into account changing particulars and circumstances. Laws will always be imperfect. Forever piling laws on top of laws will not change the situation one bit. Either you trust judges and juries to make distinctions, or you don't. Either you trust authorities to make decisions and apply the law fairly, or you don't. In essence, you either trust people, or you don't. You cannot demand discretion when it suits you and forbid it when it doesn't.

Anglo American law had a mechanism for resolving situations like Balderas'. That mechanism was equity. Equity allowed the particulars of a case to be taken into account. Particulars require consideration and judgement. In short, equity requires people. Because we came to distrust the human element, we attempted to eliminate equity through a blind, machine like application of the law and mandatory sentences. Now, when a case arises were equity is needed, it is not there. Balderas' case does not demand a new law. Indeed, that is the last thing we need. Neither does it demand the law be rescinded. What it demands is equity. What equity requires is faith in human judgement.

Law is impersonal. Society is not. People can make distinctions the law cannot. If you don't trust people to make a distinction between day laborers and graduate students, you should not complain when that distinction is not made.

Geezer Bandit

On Monday, the "Geezer Bandit" pulled his his tenth bank heist in San Diego since August. He is called the "Geezer Bandit" because, by all appearances, he is in his seventies. He walked into a San Diego bank, pulled a revolver, and demanded money. According to authorities, after the robbery, the man fled. Some speculate that the "Geezer Bandit" is not in fact a geezer, but a man disguised as a "geezer".

Most people are able to spot a disguise. Unless the disguise is courtesy of a Hollywood make up artist, it would be easy to identify a disguise when right in front of you. Perhaps the teller was so rattled by the sight of the revolver, that they did not take the time to examine the man who was robbing them. Still, it is difficult to see how an old man could "flee." Most 70 year old men cannot run, let alone flee. If the man bounded out the door, that would be a good indication that he was wearing a disguise.

Anyone can rob a bank. It is not difficult. All you have to do is walk in and give the teller a note. You do not even need a gun. In many ways, robbing a bank is easier than making a withdrawal. Even a 70 year old man can do it. The hard part of robbing a bank is getting away.

How a 70 year old man can get away defies comprehension. Most men 70 years old move at a very slow pace. They certainly cannot flee. In some of his heists, the bandit was even carrying an oxygen tank. An elderly man with an oxygen tank would not be difficult to follow, let alone catch, even if he had a get away car parked right outside. (I cannot imagine a 70 year old man with an oxygen tank parking his get away car a block away.) Yet in ten robberies, no one has seen fit to follow him out the door. Evidently, no one has even looked out the window.

Many banks have security guards. These men are trained to prevent bank robberies. So far, they have been unable to prevent a 70 year old man with an oxygen tank from tottering out the door and getting away. Perhaps worse still, police in San Diego (presumably on alert due to the spate of armed bank heists) have been unable to respond in time to catch the Geezer Bandit. The bandit remains elusive even after 10 heists. Either banks in San Diego are hiring 80 year old security guards and near sighted tellers, or John Dillinger is alive and well in Southern California.

Worth a Try

In 2008, as the economy continued to sour, President Bush proposed $100 billion in tax cuts. It didn't work. The economy continued to languish and the Republicans lost the White House. In 2009, Congress tried another approach. They spent nearly $1 trillion to stimulate the economy. That hasn't worked either. Republicans continue to urge tax cuts. Democrats continue to urge more government and more spending. Very few are advocating getting government out of the way by reducing federal regulation and leaving the economy alone. If cutting taxes and increasing spending haven't worked, why not try getting government out of the way and just let the economy recover on its own? Perhaps this is because no one gets credit for doing nothing.

Taxes have been cut, (or at least nibbled at), and vast amounts of money have been spent, yet one thing has remained constant: the government. Americans are industrious, innovative, and resilient. They want to work and they want to make money. They have historically been very good at both. We should get government out of they way and give them a chance. It is worth a try.