"Mission Creep" in law -- can it be prevented?

Great Debates
1

For those unfamiliar with the term, here’s the Wiki on the topic. Basically, it describes a tendency for successful laws to be broadened and expanded until they become a problem rather than a solution.

Great example: sex offender registries. As initially conceived, they were a seemingly good idea: make sex offenders, then considered the most likely to re-offend, sign up on a registry so they would know they are being watched and thus be less likely to re-offend, and also their neighbors would know they were former sex offenders, so they’d have a harder time re-offending, and if they DID re-offend, they’d be easier to catch.

The notion was sold on the idea that it would be used to stop hard core sexual predators … serial rapists and serial child molesters … from re-offending once they got out of prison.

But then, mission creep set in, and the sex offender registries were eventually expanded to include people convicted of ANY sex crime, crimes that seem innocuous compared to serial child rape … things like peeing in public and consensual sex occurring between an 18 year old and a 16 year old. (Because there is, sadly, no electoral penalty for a legislator who proposes additional penalties for crimes of any sort.) In addition, sex offender registries often included bans on living near schools, playgrounds, churches, etc., that made it hard to find a place to live, plus the social stigma of being on a sex offender registry could make it impossible to find decent work, resulting in homeless, unemployed sex offenders, who if they WERE sexual predators, might not be all that INTERESTED in not offending, under those conditions.

Not that sexual predators are all that inclined to be good about signing up anyway.

So what seemed a good idea when it started is now generally regarded as a monstrous post-prison punishment which ruins the lives of everyone on it, often for no good reason since a lot of the people on it are not predators, and it’s all mostly because of mission creep. They just kept expanding it until it became a monster.

Fear of mission creep also prevents good legislation from being passed. For example, most Americans think establishing a gun registry to keep felons and the mentally ill from buying guns is a good idea. But many gun owners disagree. They are not really afraid of the gun registry, what they are really afraid of is mission creep – that the registry will be used to make is easier to appropriate guns at some point, I guess. Or that it will be used as a pretext for other, more restrictive initiatives against gun ownership.

While I don’t agree with gun advocates on the particulars of gun ownership, I completely understand their fear of mission creep, as a free speech advocate. Censorship has a long history of using a very limited ban on certain kinds of speech as a wedge to impose broader bans, with harsher penalties, if not vigorously opposed. Yes, mission creep. I and a lot of others now suspect ANY restriction on free speech as having the potential to suppress ALL free speech. So I understand gun advocates’ fear of mission creep.

The question is, is there any solution to the problem posed by mission creep? Perhaps some standard rider or language forbidding any additions to the law without a full vote of Congress, and regular reviews of the law. I cant’ think of a solution offhand that would work, so I thought I’d throw it out for your consideration. What do you think would work? Or do you think mission creep is inevitable, or even a good thing?

2

Well, I know this is my answer for everything, but if we had a proportional representation system, then the Libertarian Party would have a few seats in every legislature – not enough to enact their full agenda, but perhaps enough to have a Libertarian or two on every committee, and never failing to speak up and object to any instance of “mission creep” in law or in anything else public, just on general principles, it’s what they do. Of course, to effectively block such, they would have to come up with some non-Libertarian arguments to persuade a sufficient number non-Libertarian legislators; and sometimes they might, or at least get some concessions or amendments. But, at any rate, anything that passes will have gone through a mild acid bath of Libertarian scrutiny and criticism on the public record.

3

BG: Funny you should say that, because my first thought on reading the OP was: if you listened to Libertarians even just a little bit, you wouldn’t give so much power to the government in the first place.

4

Well, there you are, if we have a PR system, then we’ll always have to listen to Libertarians just a little bit (and to Greens, and Socialists, and Tea-Partiers-as-a-new-party, etc.).

5

Small detail: as it stands right today, there can be NO addition or amendment to a statute of law without a full vote of the enacting State Legislature (for a state law) or the Congress (for a Federal law). Only a later law can amend a prior law (explicitly or tacitly). The President/Governor/Attorney General/DA/Sherriff can’t on their own add or strike a jot or a tittle.

However, the executive branch in charge of enforcing and putting into action the laws typically gets quite some latitude into the day-to-day where-the-rubber-hits-the-road details (regulations, signing statements, deadline extensions, prosecutorial discretion, etc., there’s plenty of examples). And the Courts will interpret how far that goes if someone with standing complains about it.

So you could try and draft your legislation in a very thorough manner that tells the executive and the courts “We mean for this Law to do X, exactly X and nothing but X, and it’s irrelevant if anyone thinks Y and Z go logically or naturally with that, we do NOT want Y and Z, in fact we hereby forbid Y and Z”. But that does nothing to prevent what you describe, as any statute adopted by the ordinary legislative process can be amended by the same. Something along those lines was part of the Mancin gun bill and it still got trounced.

The problem is not procedural, it’s political.

6

I’d like to see every law automatically expire after 10 years or so. The good ones would be renewed without much controversy, but the ones that have “crept” out of control might not get renewed, or might be appropriately pared back or adjusted at that point. It would theoretically give legislators an opportunity to reflect on the wisdom of that particular law.

7

Or Republicans would threaten to let the murder statute expire unless they get their tax cuts.

8

They might — right up until they see the crowd waiting outside the Capitol building counting down the seconds until expiration. :smiley:

9

I have often wondered why this isn’t a matter of course for all levels of government. It’s not a rarity that some 50+ year old law will suddenly come into the public consciousness that’s on the books but not enforced.

In my opinion, if you have outlawed sneezing on the street because it startles the horses and haven’t updated it in the last 120 years where horses have more or less become extinct as a mode of transit, you should still be enforcing it. It’s the same annoyance I have about the book of motoring laws. At least 80% are unenforced and certain violations are heavily concentrated upon, such as speeding. I have seen, for instance, LEOs completely ignore people not blinkering when making a lane change right in front of them. But someone passes the LEO and they are immediately pulled over.

I understand the idea - “Here is how it should be” - but if we aren’t enforcing them (for any reason - lack of will, public revolt if you do, etc), it shouldn’t be there.

As for mission creep, the only way to avoid it is to require that all laws/regulations/ordinances/otherfancynames at all levels have a purpose or target statement that constrains it to intent that is tightly worded. E.g. if you enable strip searches for airplane passengers to prevent rectal bombs, it should be purposed for air travelers only and not be able to expanded to train passengers. For this to work, the purpose/target statement would HAVE to be that narrowly constrained.

10

Look, be careful, “every law” means a lot more than statutes forbidding or requiring things, it means all statutes relating to criminal as well as civil law, to personal-injury law and to family law and commercial and real-property and insurance and environmental and tax and securities and military and everything-else law, plus everything the federal and all state and local governments do, all their departments and programs and functions and their respective enabling acts and all their administrative regulations. Plus a whole lot of a lot of non-statutory legal precedents and principles underlying and pervading the common-law system and much more than ten years old.

11

In a common law system by its very nature an old statute will get expanded beyond its elastic limits the longer it is inforce. Changing social mores, unique cases, language drift and emerging interpretive techniques all contribute to that.
10 year sunset clauses? A very bad idea.

12

And how many laws would that be, approximately? Who would decide what the “good” laws are?

13

Libertarians probably would help with mission creep. Where they might not help is with “mission,” as they are so pants-wettingly terrified by government power that they do not see the threat to freedom posed by corporate power. I’ll put up with mission creep if the only other option is a relentless corporate oligarchy.

14

So every government would benefit by having a few Paul Ryans and Rand Pauls gumming up the works? The legislative history of these two does not inspire confidence.

15

How specifically would PR curb mission creep? Suppose we did have a popular piece of gun legislation passed, and it DID prevent some felons and mentally ill people from buying guns? Wouldn’t people who favored restricting guns be able to say, “We should expand the law to prevent stalkers from buying guns so they can’t kill their victims as they so often do.” And so on down the line as it goes with mission creep, to include people with a history of domestic violence, people who look at other people funny on the street, young black men, middle aged white men, and weight lifters, cause all those muscles are kinda scary, y’know?

You could probably easily build a coalition for each addition to the list, so long as the legislation stayed successful and popular. Suppose some libertarians did object to each and every addition to the list … so long as they didn’t have a large enough block to prevent passage on their own, they will be ignored, just like Rand Paul is mostly ignored now. I don’t see how PR will keep groups from voting through popular laws to aggandize their own popularity, even if they are bad ideas, as happens now. In fact, things could be worse. The Neo Socialists and the Syndaco-Anarchists and the Lesbian Mafia can be bought off with legislastion that pleases them but offends no one else. So you wind up with the Silly Hat Law, the Goodies for Undesirables Law, the Tax Free Double Dildoes Law AND the amendment to the gun registry law forbidding prostitutes and marijuana smokers from buying guns.

16

Crazy, I was laying awake thinking about sex offender registries last night. Not that I HAVE a personal stake!

It seeems odd that we’d make somebody register as a sex offender for life for the unwelcome grabbing of a breast, but not for breaking the same person’s nose. The former, your life is ruined. The latter, maybe you get off on a misdemeanor and don’t really have any lasting consequences.

17

Or perhaps not EVERY law, but force all NEWLY ENACTED laws to sunset after ten years. Of course, that was tried in the Bush tax cuts, but the Republicans were able to renew the law by dint of being willing to screw over everything else involved in government … and nothing prevents the same from happening in the future. However, it COULD work in the case of sex offender registries laws, because I don’t think there’s a whole huge constituency wanting to keep everyone who’s ever peed in the bushes or gone all the way with a teen girlfriend (when they themselves were teens) on a perpetual sex offender registry.

18

True enough, every such law could become a tool that special interest could use as a club to get their preferred legislation passed.

19

A ten year sunset of new legislation would avoid that problem, would it not?

20

They’re called the fathers of the teen girls (or of the teen boys who it turns out are gay).

As it stands, this is already happening, a growing number of states are adopting the so-called “Romeo and Juliet clause” by which if both parties are teens within a close age-range window around the AoC they get a break.