Guest post: You can beat the rap, but you can’t beat the ride
Originally a comment by Screechy Monkey on Process as punishment.
There is apparently an expression among some law enforcement types that “you can beat the rap, but you can’t beat the ride.” Meaning that if cops decide to arrest you and drive you around in the back of their squad car for hours before processing you (typically so that it’s too late to arraign you until the next day and you have to spend the night in jail before you can get bail set), then you’re not getting that time and inconvenience back even if the charges are quickly dropped or dismissed.
This is also why I get so ranty about speech-restrictive laws being dangerous even when they’re supposedly only targeted at things that you don’t think deserve legal protection. They absolutely WILL be abused to harass people for things that are clearly protected, and the threat of this will chill people from doing perfectly legal things that they fear will piss off the wrong cop, prosecutor, etc.
It’s also analogous to many of the anti-abortion laws being passed in the wake of the Dobbs decision. “What are you so worried about,” ask Republicans, “this law specifically makes it an affirmative defense if the abortion was necessary to save the mother’s life!” Great, so if a doctor performs an abortion, then he or she will have an opportunity to try to persuade a jury that the exception applies and they shouldn’t be convicted of murder and sentenced to life in prison, and if it works, then all that will happen is that they’ll have spent months if not years awaiting trial, spent six or seven figures on legal fees, and probably had their practice suspended in the interim. That sounds like something that a prudent doctor would be willing to endure just to help one patient!
Tl;dr version: vague laws suck, and saying that judges or juries will eventually sort it out doesn’t cure the suckitude.
While the two are logically equivalent in principle, is there a practical difference between “X is legal except when Y” and “X is illegal except when not Y”?
NiV,
In legal terms, the relevant difference is between elements of the offense and affirmative defenses.
To stick with my example of an abortion statute, if it’s an element of the offense that the abortion was not performed to save the life (or health) of the mother, then the prosecution has to allege that fact and provide enough evidence to convince a grand jury to indict (a low bar I admit) and a judge not to dismiss the charges, and if it survives that, to prove it beyond a reasonable doubt at trial. If it’s an affirmative defense, then it’s the defendant’s burden to come forward with evidence sufficient to convince the trier of fact, generally by the “preponderance of the evidence” standard, i.e. it isn’t enough to show a reasonable doubt.
Sometimes that distinction matters more than other times, but it does generally matter.