Dammit, I hate that word
Loophole. It conjures up nefarious attempts to thwart a law via technicalities. Unfortunately, what it usually means is shit happens we didn’t think of. And the media swallow it. Like this case where a local sex offender lives within some random number of feet from a school:
So why can McGill live so close to young kids? It’s a legal loophole.
McGill was convicted of a sex crime in 2000, four years before Tennessee put restrictions on where a sex offender can live or have a job.
I’m not defending the guy at all. But it’s not a loophole. Someone didn’t think of it when they wrote the law (or maybe they did but made it effective at that date so they didn’t have to forcibly relocate people). It’s inaccurate and misleading to imply this is a loophole. Like the gun show and campaign finance reform loopholes, it’s a scare word. The solution was to write the law correctly the first time but people aren’t perfect and don’t always get it right the first time.
October 14th, 2005 at 10:15 am
The word ‘loophole’ has some value. When people avoid the intended effect of a law because of imprecise or imperfect drafting, that’s bad. Society geared up its political machinery to solve a problem. We built the democratic will and spent the political resources, and when we don’t get the intended results, somebody is harmed. This is exploitation of a loophole in a negative sense.
Contrast that with a person who is in compliance with the law because the democratic will didn’t extend to his situation (i.e. this guy was grandfathered in for whatever reason). That’s good, and it’s not a loophole. If the legislature didn’t want to kick this guy out of his home, then his not getting kicked out is the correct result.
The problem is that it’s difficult to know which situation applies. Different people voted on the law for different reasons. Some might have expected it to cover this scenario. Others only voted for it because it DIDN’T cover this scenario. There’s no one authoritative view of a law’s intended effect.
October 14th, 2005 at 12:48 pm
It’s not a loophole, it’s the law.
Some call them loopholes, others call them undocumented features.
October 14th, 2005 at 1:46 pm
Two points:
Ex Post Facto – After The Fact.
I don’t think it is legal to write a law that effects people after the fact.
If the legislature would do their job and write laws that were comprehensive and specific then there wouldn’t be “loopholes”. The downside of a loophole is that the judicial branch then has to legislate from the bench because the morons didn’t do their job. (That’s not the _only_ time they legislate from the bench, but it is one of the causes.) The other side of a loophole (not the upside) is that it allows the law enforcement to selectively apply the laws depending upon their preference. If the laws are written such that everything can be construed as illegal, then cops and DA have more power by deciding to prosecute a person based upon their opinion of them. Or the support of the citizen of a particular policy or organization. (e.g. If your politics align with the DA’s, then you might not be prosecuted.)
October 14th, 2005 at 7:29 pm
You used to live in HI? WTF did you leave for? 🙂
October 14th, 2005 at 7:50 pm
SU: I thought your objection to “gun show loophole” was the implication that the legislature had inadvertently made its law inapplicable to certain scenarios it was never really intended to cover. If the non-application of Law X to Situation Y is inadvertent, I see no reason not to call it a loophole.
Jon: Your definition of ex post facto is not correct. Retroactive laws are not generally unconstitutional; only laws criminalizing conduct after the fact are. Tennessee could pass a law tomorrow making the law applicable to past offenders. Once they did, McGill would have to leave. He could not, however, be prosecuted for having refused to leave before the law took effect.