In fact I believe laws should be designed to require selective enforcement. It's the only way to make the laws as simple and concise as they need to be.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.
Aristotle advised that laws should cover the general case and judges the particular. Hence the saying, "Hard cases make bad law." There is always a need to interpret. So the computerization of guilt or even "fishing" is very scary. Privacy is a buffer that helps build "selective enforcement" into any law that gets made.
We know that in the civil sphere getting sued is so bad it often doesn't matter whether you win or lose: the mere threat is enough to compel or punish. Likewise in the criminal sphere, people often settle rather than fight, which would mean bankruptcy and the risk of worse jail time. Now imagine in the criminal sphere if a computer could look at everything you wrote and raise a flag every time something looked suspicious. It's important to have a buffer, some kind of resistance that must be overcome before subjecting people to that. Hence the Fourth Amendment.
The term "selective enforcement" seems to imply that laws are enforced at the whim of the enforcers, which strikes me as an undesirable property of a legal system. It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce.
> It seems to me that selective enforcement, if present at all, should work the other way around: occasionally choosing to acquit, rather than occasionally choosing to enforce
Do you mean going through the trial and then occasionally choosing to impose a null sentence, as opposed to skipping the trial altogether?
Otherwise I'm not sure how what you propose is different, given that there are so many levels of enforcement within a legal system.
The military is in fact struggling with that issue right now, with debates on sexual harassment in the military taking up a lot of time in the House and Senate. And in fact it seems that Congress will probably remove the ability of the court-martial convening authority to acquit someone at all, due to abuses of that power. So there is no panacea.
Much as your quote seems to imply, there is really only the consideration of what scheme would work best overall. And right now selective acquittal (as opposed to selective enforcement) is destroying the credibility of the military on sexual harrassment issues.
As soon as you go that route though you have to admit that the purpose of the law is to punish people for the crime of being infamous and nothing else really matters.
Maybe that is a tradeoff we should make. I am not yet convinced. My concern is that as soon as you say "let's make this flexible" you ensure that we can find something to charge people with if we want.
The famous and rich have managed to get out of laws that were clearly and explicitly applicable to them.
The problem is not the law itself in those cases, it is the people enforcing the law. If your cops and judges can be bribed then no law or defense is ironclad, "selective enforcement" or not.
Snowden is a great example of this. He demonstrably has broken the law, the law itself has a valid purpose.
Without selective enforcement he is in for a heap of shit because how do you design a law ahead-of-time that accounts for every possible nuance of how the greater public good might outweigh the risk to national security of analysts routinely disclosing classified information? We here on HN can't even design websites and programs that are secure and the computers do exactly what we tell them do, the legal code has to deal both with human agents who screw up and smart individuals looking for loopholes.
But with selective enforcement we can keep the law simple: "Don't leak classified information", and then allow for public outcry (or common sense) to prosecutors or the POTUS to ensure that he's either not tried, or even has an eventual sentence reduced or commuted.
Even now we live in a country where the police routinely don't 100% enforce the law even without invasive oversight, so it's obvious that merely having the police know about lawbreaking alone doesn't inevitably lead to trouble; oftentimes they care even less than the public does as it results in more paperwork for them.