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Comment by darksaints

5 years ago

It's a shame that we don't have criminal charges for government employees that violate the 4th amendment. As it is structured, the government has the incentive to test their boundaries constantly, as there is no risk in doing so. The worst that can happen is any actions they take on such information gets thrown out in court.

That isn't a disincentive...they can continue to violate the law, because there is nothing stopping them...merely laws that prevent them from using the illegally acquired information if the defendant has a competent lawyer. But never a penalty for illegally acquiring the information in the first place.

9 comments

darksaints

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refurb  5 years ago

Random question - but just because it violates the constitution, that doesn’t necessarily make it a crime, correct? In other words, the Constitution limits the government from unreasonable search, but it doesn’t proscribe a punishment if it’s violated. You’d need a separate law for that?

  • TT3351  5 years ago

    Strictly speaking this is correct. Even in cases of treason, the only crime defined in the Constitution:

    "The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted."

  • octoberfranklin  5 years ago

    If it violates the constitution then the government employee loses their protection from Title 18, Section 242. That is what makes it a crime.

    https://www.justice.gov/crt/deprivation-rights-under-color-l...

    ...acts under "color of law" include ... acts done beyond the bounds of that official's lawful authority, if the acts are done while the official is purporting to or pretending to act in the performance of his/her official duties.

jariel  5 years ago

If the laws were perfectly clear and the agency were in clear violation, that would be one thing.

But often it's not, and like anything, the way we do it is figure it out in court. Which is crazy but that's it.

Our system 'incentivizes rule testing' because it's the only way to find out where the boundaries are.

It's ridiculous: the best lawyers in the world enact laws that are summarily overthrown by other lawyers who are Judges. That shouldn't be possible.

It would be cool if lawmakers and the judiciary had a way of finding the limits without having to test them and wait years in court.

We have to spend 10 years for the courts to decide what the hell we meant when we wrote copyright law? It's just dumb.

At very least, for national security we could have a Judicial oversight team who can maybe make rulings and then clear actions before they are taken.

  • octoberfranklin  5 years ago

    Unclear laws should be nullified, not patched by judges.

    After a few nullifications the legislators will learn to be more careful. Painful but positive process.

    But, but, but, muh criminalz amok! You say. And yet convictions are thrown out all the time for unlawful searches.

    • jariel  5 years ago

      "Unclear laws should be nullified,"

      All laws are unclear.

      Particularly the most important one, the Constitution.

      They are forever in refinement.

dragonwriter  5 years ago

> It's a shame that we don't have criminal charges for government employees that violate the 4th amendment

We do. See, e.g., 18 USC 241, Conspiracy against rights, and 18 USC 242, Deprivation of rights under color of law.

Its just that the people who would prosecute those charges are often not inclined to do so for federal government agents doing so as a matter of policy rather than as rogue actors.