Monday, June 16, 2014

The Importance of Clear Laws

Posted By on Mon, Jun 16, 2014 at 10:03 AM

Tony Gonzalez and Shelley DuBois have a really important story over at the Tennessean about Tennessee's approaches to dealing with pregnant women with drug addictions. I'm not going to try to summarize it, because they make a lot of really good points.

I want to just talk about this part:

"It would just seem to me that any society that puts value on life would agree that these defenseless children deserve some protection and these babies need a voice," said Rep. Terri Lynn Weaver, R-Lancaster, who sponsored the law that criminalizes addicted mothers.

She says the law will let prosecutors go after the worst cases of women abusing substances while pregnant and put those offenders into Tennessee's drug court system, which could send them to treatment.

Weaver insists her law can single out bad actors.

"These ladies are not those who would consider going to prenatal care. These are ladies who are strung out on heroin and cocaine and their only next decision is how to get their next fix," she said on the House floor. "These ladies are the worst of the worst. Again, I want to emphasize what they are thinking about, and that is just money for the next high."

If you read this bill, you know this is not true. Not just at the level of "we don't have enough places to treat these women." I'm talking at the level of "the words on the page do not say the things you say they say." There's nothing in the language of the law that directs prosecutors to only go after women who are the worst of the worst. There's nothing to prevent them from prosecuting any woman whose pregnancy outcome could be blamed on drugs.

Let me be clear. I'm not calling Weaver a liar. I'm as certain as I can be without being a mind-reader that she really wants to have written a law that would punish women who utterly refuse to get treatment for their addictions and whose addictions cause adverse affects to the health of their newborns. But that's not the law on the books right now.

This speaks to a larger problem we see repeatedly — our lawmakers do not know how to write bills that accomplish the things that they want their bills to accomplish. So we end up writing laws that we have to go back and change when the inevitable and absolutely foreseeable unintended consequences kick in.

I know that many of our bills aren't even drafted by our lawmakers. I know that lobbyists and other interest groups come up with the language and then get legislators to sponsor the bills and the legislators sponsor the bills taking the special interest groups at their word about what the bill does and assuming that anything hinky will be worked out in committee.

But it is the legislator's job to make sure that he or she understands any bill he or she puts his name on. Not just the intent behind the bill, but the actual words on the paper. At a bare minimum, every legislator should take a moment to sit with every bill he or she might sponsor and say "Why do I, personally, think this is constitutional?" (this doesn't necessarily apply in this specific case, but I'm dreaming big) and "What do I think the bill does? Okay, what are the words in the bill that say that?" (So, in this case, if Weaver thinks that the bill only goes after the worst of the worst, what language in the bill specifies which women should be prosecuted under it, if it were to become law? What words limit it to the most egregious cases? Can a legislator find the words in the bill that mean the same as what he or she has been told the bill does?).

I think a lot of our state legislators think that, since they aren't lawyers, they just have to trust that lawyers have worked out the formal legal language and have matched that legalese to the intent the author had for the bill. But that's just not true. And it's a complete abdication of the state legislator's job.

If you've been told a bill does X and you look at the actual wording of the bill and cannot see how it makes X happen, it's not because you're a dumbass. It's because the bill is poorly written. Go back and demand the language be clarified. Even if you are a dumbass, insist the bill be written so that you can understand how it works. Believe me, no one in this state is going to complain if our laws are written so clearly that even a dumbass can understand them.

Otherwise, you end up like Weaver here, who is heavily invested in defending her "good" idea (and yes, I disagree) even though she has already failed her "good" idea by passing this law instead of the law that would have done what she wanted, and only what she wanted, to accomplish.

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