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2024-03-29 07:59 by Karl Denninger
in Editorial , 629 references Ignore this thread
I Wish Reality Was Not This -- But It Is
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Virtually everything wrong in this nation (and indeed arguably everywhere) comes down to a lack of fear among those who do things that society has deemed unacceptable.

We cannot avoid that in total, of course.  Some people just don't give a crap; they're nuts, and even the fear of death will not deter them.  There is no stopping such a person other than by caging or killing them and you either have to accept the necessity of doing that or suffer whatever choices they make for their behavior.  Someone who is a pyromaniac, for example, does not care if he gets caught -- he just wants to burn things and burn them he will until and unless he is either dead or in prison.

But most people are not in that category.  Indeed, those in that category are very few in number.  Most people do indeed qualify risk and reward, although all of us suck at the calculation to some degree.  That is, if the risk of being caught committing an offense times the price if you get caught is greater than the benefit from the offense you'd be crazy to do it -- but if the other way around then you will do it if you have no particular moral qualms over whatever it is and a huge percentage of people have no moral compass at all and there is no way to force one into someone who lacks it.

Fines are insufficient in essentially every case when it comes to corporate behavior or any other form of indirection is involved.  The reason is simple: The decision maker never is forced to personally fork up the judgment.  You could make any serious corporate felony result in a fine that was a significant percentage of the firm's market cap but nobody ever has put such a law on the books and nobody ever will, never mind the next problem.

What next problem?  These people are never prosecuted in the first place.

8 USC §1324 anyone?  All persons harboring or bringing in illegal aliens through a non-regular point of crossing are subject to felony criminal penalties carrying 10 years in prison.  Yes, if you house such a person you are liable for 10 years.  Worse, if that illegal alien harms or kills a person here the penalty is either doubled (if harm) or becomes a possible life sentence (if they kill someone.)

How many such charges have you ever seen laid?  Was the farmer who employed and housed Mollie Tibbetts murderer charged and imprisoned?  No.  How about the myriad others?  Has Laken Riley's alleged murderer's landlord been charged?  No.  How about all of those people who harbored, aided and abetted illegal aliens who have committed robberies, home invasions, thefts of various sorts and rapes?  Has there even been a reported laying of said charge and prosecution?  EVER?

THIS IS NOT A NEW LAW; IT DATES TO 1952 AND WAS LAST UPDATED IN 2005.

Among the near-unanimous number of medical providers, hospitals, insurance companies and pharmaceutical firms who violate 15 USC Chapter 1 daily -- a criminal felony offense carrying 10 years in prison for the mere ATTEMPT to fix prices -- have any been charged?  How about pharmaceutical firms convicted of data fraud and other felony conduct?  Has anyone gone to prison for this?  How about the Sackler family and Purdue Pharmaceutical who, it is claimed, were responsible for the opioid epidemic?  Why was not the Sackler family held criminally liable?  Exactly how many people do you get to have die before you face an indictment if you run a corporation?  May I remind you that Purdue pled guilty to felony misconduct in misbranding OxyContin and thus has admitted, under criminal standards of proof, that they in fact did so.  Where are the felony criminal mass-manslaughter charges against not only them but also the entire distribution and sales channels down the retailers who made a crap-ton of money in the process.  All we're going to do now is argue over whether we can take some or all of the Sackler's money -- which they made by in part, as the firm admitted, misbranding the drug?

And don't start with attempting to misdirect on this and say "well, live in a state with tougher but similar laws!"  Tennessee has an anti-trust statute that demands revocation of corporate charters for the same behavior in 15 USC Chapter 1 -- arguably the toughest in the nation.  You'd think there would not be a single price-colluding firm, physician, pharmaceutical product or hospital in the state but of course zero such prosecutions are actually brought.

How about the Venezuelan on TikTok laughing about seizing American's homes?  Oh, and while he's at it he's also laughing about getting government handouts on a weekly basis despite being here illegally.  Gee, how scared would you be if five or six million illegals had entered in the last couple of years and your expected date to be asked to show up in court was SIX YEARS in the future?  Oh, and when you cut the GPS monitor off nobody does anything about it.

Want another example?  Here, read this -- it is alleged that Zuckerberg's firms installed root certificates on user's devices for the explicit purpose of, and then did, deliberately intercept traffic to competitors, specifically Snapchat and then they extended that to Youtube and Amazon traffic!  The purpose was to get "inside" their competitors analytics -- in other words, theft of data which they had no right to in that it belonged to the user and/or their competitors.  They did this through provision of an alleged "VPN" they offered to people during a three year period that, it is alleged, had as an actual major part of its purpose intercepting that traffic and thus deliberately compromised customer-carried data.

This facially appears to meet the legal standard of wiretapping which is a serious felony, never mind fraud when it came to the customers who were told to use this to "protect their privacy."  Was anyone at META concerned about a decade of prison time being awarded to them for this stunt?  Obviously not.

Let's face facts here folks: A very poor person might get a standard of living upgrade from a prison sentence, but someone who is wealthy never does and especially a serious term of years, such as a decade in the slammer, is a strong deterrent and arguably becomes stronger the more money you have.

Losing a middle-class lifestyle is one thing -- losing access to your private jets, palatial estates and all of the other trappings of wealth, having as your new home for the next 10 years the same 10x10 prison cell as the garden-variety rapist or robber certainly is quite a step down from having a billion dollars and the capacity to spend it however you wish, no?

But the record is that nobody will prosecute -- neither state or federal officials -- despite having a legal mandate to do so.

Since our society places the responsibility for all criminal prosecution on the state and forbids you from bringing such a charge privately if the state (whether local, state or federal) refuses your only means of recourse is to either directly punish the alleged malefactor or to directly punish the government officials who refuse to do their jobs.

In short our choice as a society is simple and stark: We must either instill the fear of punishment into the malefactors directly or we must instill real and cogent fear as the consequence of deliberate non-performance into the government agencies and personnel who are supposed to enforce said law and in fact who took an oath to do so but are and have been refusing and by doing so they make themselves literal accomplices to rampant and outrageous criminal activity so as to convince said persons and agencies that the better and only wise course of action from their point of view is to prosecute as the law actually demands.

If nobody takes either action then by consent that law is effectively repealed as if it never existed and the malefactor is free to screw you with impunity up to and including killing you which, I remind you, they have for the last several decades!

No, taking such an action is not "vigilante justice" although plenty will argue it is.

Vigilante justice is unacceptable because it short-circuits due process of law which our system guarantees to the accused before punishment is meted out.

In this case there is nothing to short-circuit as the government never intended to, and never does, actually bring the charges in the first place and you cannot abrogate that which never did exist and never, in the absence of your act, ever will.  You're not "stepping in front of" a prosecution because no such prosecution will ever take place despite the crime clearly occurring.

The correct way to look at such a choice (and don't kid yourself about the consequences -- they're likely to be extremely severe when you get caught, and you probably will get caught) is restoring the proper fear into the minds of malefactors by making the odds of getting away with the offense non-zero and the penalty, if they don't get away with it, severe enough that the action is deterred.  While one such action will of course be downplayed as that of a "lone nut" if the risk becomes real and yet there's no possible way to know who might do it in advance among the 330 million Americans then that cold-sweat nightmare will return to its proper place in the mind of said malefactors as should have always been the case.

In other words exactly what should be in a corporate actor's mind as they contemplate whether or not to steal data, fix prices in the medical system so as to multiply the cost of care by a factor of five, lie about drugs on the market with a safety record better than aspirin and similar.  The richer or more-powerful and/or secure in their lifestyle and job (e.g. government employee, politician, etc.) is the greater the damage to their lifestyle they perceive from a decade-long prison sentence and thus the richer you are the more of a deterrent such a sentence is IF IT IS IMPOSED.

We cannot solve anything of serious note in this nation until those who violate these laws -- and the count is enormous -- start serving those sentences and thus by example put that proper balance of fear back into the game.

How many people would have rented an apartment to Laken Riley's murderer and two other brothers if the farmer who employed and housed Mollie Tibbetts' murderer was, from the time of that man's conviction forward, serving a life sentence under 8 USC §1324?  How many illegal immigrants would be roofing houses or plucking chickens if the owners of the company knew that they were facing five years in prison for employing them and if one of them decided to rape a college girl in town or worse, killed her they were going to get 20 years or even life in the slammer?

All of this crap will stop in one day if that fear is returned to employers and politicians.  The odds don't have to all that high but they must not be, as they are today, zero.

Without that happening nothing will be made better and there is more than four decades of evidence, at this point, that voting one politician or government employee out, such as an AG, prosecutor, Governor or even President will not change any of this as all these laws have been on the books for anywhere from decades to over a century and yet nobody has enforced any of them against anyone.

I have one significant change that we must make to criminal law when the offender is a director, officer, or other person in control of or benefiting from a larger entity (e.g. corporation) that is the instrument or principal of the offense but until criminal penalties are actually enforced that have been on the books for decades and charges are brought that's a pointless exercise as one more law or clause that will be ignored changes nothing.

Since it's Good Friday I'll add this:

Did Jesus go into the Temple, see them defiling The Law of the time with zero enforcement against them, and then shrug his shoulders and let them keep all the money they were making?  Oh, and who were they?  If you think Jesus let that go and said "eh, my Father will sort it out in the end" you've been reading a rather different Holy Book than I remember.

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