A regular Samizdata reader (who for fairly obvious reasons has asked to remain anonymous) submits this slightly horrifying story of what has recently happened to a friend resident in Spain. People familiar with the Spanish justice system – this is not a country where you wish to get in trouble with the law – will not find it surprising. Still, it is different, somehow, when it happens to you or someone close to you.
Occasionally one hears a story of a government overreach which makes one think that something like it could not happen in a Western Democracy, at least not on a regular basis. And if it does, it surely is due to some kind of a mistake, to which bureaucracies are so prone, or due to some corrupted government officials acting illegally. That was what I thought, after a friend who suddenly disappeared, severing all contacts with friends (although thankfully not family), reappeared after having spent four months in a Spanish jail. When this middle-aged suburban mother of young children told me that she got lucky, seeing as a maximum term for a pre-trial detention according to the Spanish law is four years, I thought that she must have misunderstood something “lawyery” – turns out, she did not (more info in Spanish here). What is worse, according to that document Spain is by no means different from several other European countries, and is not the worst among them, either.
As of now, my friend is still less than keen on discussing the legal aspects of the matter, and she has never been much interested in these things anyway. But, to paraphrase that dead revolutionary: you may not be interested in Law, but Law is interested in you. After having her apartment turned upside down and having been dragged to jail following a knock on the door, she was brought before a judge, whom she told that she just happened to have been once-friends with someone connected to something much bigger than herself or anyone she has ever known.
It took the Spanish authorities four months to corroborate her statement. In the meantime, she spent those four months in appalling conditions, with only a weekly through-the-glass visit from her husband, plus a monthly conjugal visit. No heating (in winter), filthy cells, two women sharing a cell with a toilet. Her kids still think she was away for some kind of professional training. It would have taken longer (as noted above, up to four years) if it was not for her lawyer. She made friends in jail with women who cannot afford a lawyer, and others who were extradited to Spain under the European Arrest Warrant and do not even know anyone in Spain. They are still in jail. Word is (I have not checked) that all the “Big Fish” with that big affair apparently are home free after about a month and a half in jail. The State is NOT your friend.
Here in the US, a man was recently arrested and essentially forgotten in a solitary confinement cell for two years, never brought to trial.
http://www.foxnews.com/us/2013/03/07/155m-settlement-reached-in-nm-confinement-case/
I’m not a legal expert by any stretch, but it does seem that the presumption of innocence (and the rights of the accused that accompany it) is much stronger in British common law and its descendents than in other law regimes. It’s easy to slip into thinking that all the liberal democracies are basically the same but, at least in that area, it appears they are quite different.
The Napoleonic heritage, left from one of the great efforts (almost successful) to make all Europe one under the Continental System.
You (not I, at my age) may yet see the results of the ongoing efforts to “unify Europe” in these patterns.
“Human Rights” dispensed, but not available for individuals.
Highly discombobulating and a bloody waste of taxpayer money, keeping her in chokey for four months like that.
When the Spanish finally return to being a properly-run Fascist State, her and her ilk will be terminated without imprisonment. Much more efficient. Assumed guilt and instant dispatch at the outset is far more expeditious.
Not long to wait for that now, it seems.
Yes, I can’t wait for the Judge Dredd movies and comics to be prophecies, though they never did explain what happened to a judge who missed a vital clue, and judged the wrong person.
When you destroy civil institutions and civil protections, and the country is run by organisations (military, police, etc) with essentially arbitrary power, it is very hard to get proper civil institutions back. Spain was ruled by Franco’s dictatorship for 40 years, and while it is a fine thing that it then evolved into a democracy, many of the institutions of Francoist rule continued to exist in a relatively unreformed state and with relatively unchecked power. So, civil rights remain weak. Some of it may be the difference between the Napoleonic code and the common law and different legal systems of northern Europe. I think, though, that a lot more of it is the legacy of more recent history. Certainly this kind of thing is worse in countries that have been prone to military dictatorship in recent decades – Greece being another.
Probably the same thing that happens now. Sierra foxtrot alpha.
The difference is Perry that he would have not received any compensation in Spain.
What’s SFA stand for, anyhow? I’m not familiar with that particular acronymic phrase.
Roger C:SFA–That’s not true–the cops (esp in USA) often get several days/weeks paid holiday out of it all.
“…others who were extradited to Spain under the European Arrest Warrant and do not even know anyone in Spain…”
Indeed.
And this can happen to British citizens as well (NB Tedd), since our traitorous political class got us entangled in the EU empire.
There’s no appeal against the warrant, NO legal process required in your own country, and no evidence needs to be presented: a warrant is issued by the Spanish (or it might be the Romanians or the Greeks or the Bulgarians, God help us), and off you go to their jail. That’s it, end of story.
Presumption of innocence? Due process? Rule of law? The Bill of Rights? Magna Carta?
Nope, all gone – thanks to the EU and the scum who signed us up for it.
This sort of subversion of legal procedures is, I’m afraid, only likely to increase in the future.
Not only because of the general trend to overweening state power, but because of the increasing difficulty of combatting criminal conspiracies. Criminals are adaptable, and they adopt methods which evade the reach of existing law, and techniques to subvert the authority of law enforcement (bribery and intimidation).
In particular, they have learned to distribute: to operate in small, loosely-linked cells, and spread criminal responsibility and retaliatory ability across those cells. Traditional law enforcement has increasing difficulty defeating such forms.
That has led to broader, and more dangerous laws and techniques such as America’s RICO Act, civil forfeiture, and wholesale arrests of possible witnesses or suspects.
Libertarians should not fall into the trap of thinking that because the gangster is the enemy of the state, he is a friend of liberty. His object is to subvert and replace the state with unbridled tyranny. Where gangsters have succeeded in this, they have proved worse masters.
This battle will continue; and liberty will continue to suffer.
RSS – “Human Rights” dispensed, but not available for individuals.
To paraphrase P.J. O’Rourke’s quote about living in the 16th arrondissement, everyone has human rights but not everyone can afford to exercise them.
Nick (nice-guy) Gray – …and judged the wrong person.
Tsk, tsk. Once you’ve been “judged” you’re automatically the right person.
The Great Charter of 1215 says that trials should not be delayed, that they should be speedy.
However, it does NOT say what this means.
So you may be kept “on remand” in England-Wales or the United States for a very long time indeed.
If you do not make bail you are in deep trouble.
I believe in Scotland things are different – that there is clear time limit on how long trial can be delayed.
But I do not know the details of Scots law.
Paul Marks wrote:
‘So you may be kept “on remand” in England-Wales or the United States for a very long time indeed.’
Not so in the US – generally speaking.
The 6th Amendment ensures the right to a ‘speedy trial’, and in many places and cases, the definition of ‘speedy’ has been codified to a number – if the prosecutor doesn’t bring to to trial in X number of days, a maotion to dismiss will be approved on 6A grounds and you are away scot-free.
The 8th Amendment prohibits ‘excessive bail’, and bail is arguable at arraignment. To be remanded without bail is actually stunningly unusual in the US – if you can’t make bail, that’s another matter, but almost everybody is bailable in some amount. You really have to be a blood-drenched ax-murderer to be denied any bail in the US – generally speaking.
The key issue here, that nobody has mentioned, is habeas corpus. In the European system, as I understand it, the police effectively decide how long they will hold you (up to a very-long maximum) and they don’t have to explain themselves to anybody. In the UK common-law system, the police have to continually justify your detention to the court, so there is at least some mechanism for drawing attention to more-than-usually-obvious mistakes.
I don’t undertand how the EAW works – is there really no process in any UK court? You mean I can just rock up at the police station with what I claim is an arrest warrant from Romania and the police will go out and arrest the named person, no questions asked? Really?
I will wager good cash money that the application of EAWs in other European nations is not nearly as orderly as it appears to be in the UK. You buggers will insist on following the rules. I suspect that EAWs issued by UK courts for French nationals, for example, tend to get misplaced in the pile, somewhere below the summonses for unrenewed dog license and excessive halitosis.
llater,
llamas
I agree with llamas. The US jurisdictions with which I am familiar have a “one-term” rule: the trial has to be brought within the next term of court (there are generally 3 terms a year). If it takes longer than that it’s usually with the consent, if not at the request, of the defendant. And as he said, bail is generally pretty liberally granted (although it might be for a high amount which is difficult is not impossible to meet).
nweismuller – Also often rendered “Sweet Fanny Adams”. Sweet Fuck-All, i.e., nothing.
That is better than England-Wales Laird (and llamas).
Here someone can be “on remand” for a very long time.
However, even one day in an American prison can be terrible.
Abuse of prisoners (by other prisoners) is out of control.
Yet the courts have declared that government (neither State or Federal) have no “duty of care” when prisoners are attacked by other prisoners (not by prison staff).
This is an outrage.
OK
If you live here, one thing you learn to accept, the Spanish have all efficiency of a chocolate teapot. Everything takes forever. The guy who nicked some stuff from me in June ’09 went for trial March ’12. Don’t suppose he was on remand though. However, on their credit side, being used to UK justice I’d just given them a statement & forgotten it. Grand & a bit. Brit plod wouldn’t stir off his chair for that. Let alone actually investigate. They traced me through a trail of a UK address, a French address & 2 Spanish addresses to here. Not helped by the inquiry made by UK plod at that address consisting of a copper knocking at the door & asking if I was in. It was actually my parents address who didn’t know exactly where I was. He left no card, name, or contact details or why the Spanish wanted to contact me. Local nick hadn’t the vaguest idea when I phoned them. The message would have been; because they’d nabbed the culprit I’d be able to lodge a claim for compensation at the trial. Restitution is part of penalties here. Unlike UK, which couldn’t give a toss about victims. Regina versus etc
Looking at the particular case, mentioned. Helluva lot of Chine in Spain. The Chines ‘bazaars’, sell everything shops, are everywhere. This small city’s got about 50 that I know of. Even small villages have them. Wouldn’t be surprised if some are laundering. Pakishops do UK side. So they’ve a mass of suspects in a complicated case. Who’ll disappear into their community like a shot. How’d they sort the wheat from the chaff when they’re all going to be saying “Not me guv” And we’ve an enormous illegal immigration problem. Millions I know loads. The g/f was. Finding a fugitive in that lot’s a no go.
Ain’t all as simple as you make out is it? The real world ‘n that.
Actually, it is that simple. There is no reason to hold someone for 4 months without trial. None. If the State can’t get its act together in that time, then it doesn’t have a case, and the arrest should never have been made.
What would be a libertarian alternative? If someone is accused of a crime, do they automatically get bail, or give an insurance number to the ‘authorities’? Anybody can complain, but can anyone point to a way ahead?
@Nick (nice-guy) Gray
There you have the great intellectual, libertarian cop out. Great on libertarian principles. Not so good on how a libertarian society would work.
Lets just say, for example, our police picked me up on suspicion of wrongdoing. I wouldn’t do armed robbery or sell drugs on street corners, so whatever it is is likely to be financial & complex involving dodgy bank accounts, multiple identities, whatever. Anyone who does this sort of thing covers up their paw prints & lays innumerable false trails through the paperwork intentionally to hamper an investigator. Reckon it’d take them a month just to positively identify who I am. They release me on bail, I’m gone. I’m plugged into the Colombian world through the g/f, the Russians & Romanians through mutual interests & our own UK diaspora. The only assets they’ll have seized are the ‘in-play’ ones. Everything else is tucked well away & the run money’s cached.
Now you tell me how you bring me to a quick trial? You could try torture, I suppose 🙂
Or do libertarians just let crime prosper to uphold their principles? (Sounds a lot like current UK,) Makes sense in a way. Criminals are your uber libertarian.
(All that’s theoretical. I do, of course, sell hymn books to nuns)
Just to add:
Nick says “or give an insurance number to the ‘authorities’? ”
The authorities don’t have all these problems if they’ve locked society down in an identity card state. You can’t move anywhere, do anything without them knowing a bout it. Don’t have to lock people away in jails, then. It’d be no different from outside.
Jordan is correct.
And even four months in prison is a very long time (full disclosure, I used to work in the prison service – in fact leaving it was the worst mistake I ever made, a fatal error).
Four months in a well run prison (with one person per cell and constant observation by the staff) may be acceptable – one day in a typical American prison is not acceptable (and British prisons are moving in this direction).
Even the guilty do not deserve to be raped and abused – let alone the innocent waiting for trial.
“But the state can not gather the evidence it needs…..”
Then get a different state that can.
If a state can not organise a prompt trial (and leaves people to be cut to bits in prisons)- then to Hell with it.
I am not an anarchist – but this idea that it is O.K. for the state to grab people (who may be totally innocent) and throw them in prisons to rot, would convert me to anarchism.
Ditto RICO and other outrages.
If the state can not fight “organised crime” without acting like organised crime – then an end to it.
The same as the German state which thinks the best way to deal with Nazis is via Nazi methods – censorship and so on (and they do not even see the irony).
Have none of these people heard of Cicero?
A person who imprisoned (and executed) people without legal trial.
He sincerly believed he was saving the Republic – but ended up being executed (without trial) himself.
These means corrupt the end – they always turn round and bite.
For example, the great powers the American government has built up since the “Palmer Raids” (after the First World War) were for GOOD REASONS – Mr Palmer faced terrorists (Marxists and “anarchists”) who blow the faces of people, who killed and mutiliated.
But who has those vast powers now?
Mr Obama and Mr Holder.
Exactly the type of person the powers were meant to fight.
Remember “A Man For All Seasons”.
Do not knock down the principles of law saying they are “impractical libertarian abstractions” when you hunt the devil.
Because, sooner or later, the devil is going to turn round – and start hunting you.
And you will need the very principles of law that you have destroyed.
@ paul
OK. You’ve established what you don’t like. Well done. Now suggest a method that balances liberty of the individual with the liberty of the individual to enjoy life without being preyed on by those who don’t respect either?
Certainly Bloke In Spain.
I suggest that people in the “Criminal Justice System” DO THEIR JOBS – collect evidence before they arrest someone, or (at worst) finish collecting the evidence soon after they have arrested someone.
If they can not do this – then they should get the f…. out of the way, and let other people do the job.
That is what I suggest.
In short – I support the Scots Law (which I am told is also the practice in many American States – although not the Federal system) concept of if you can not get the evidence within X number of days after the arrest someone is either bailed – or walks free.
No rotting in prison for months “on remand” while the “Criminal Justice” administrators play games.
“But it is hard to collect the evidence in X number of days – and if we bail people they will run away”.
Well PULL YOUR FINGER OUT then.
Is that clear enough?
Paul. What you’re describing is the system we’ve got. Spain’s got. Most democracies have. According to theory.
“I suggest that people in the “Criminal Justice System” DO THEIR JOBS”
How do you incentivise that? The adversarial system favours the rich. We just watched it spend over a hundred grand getting the Huhnes to court. Months of expensive lawyers trying to wriggle him out of even a trial. Ordinary punter would have been run through in 5 minutes. Inquisitorial system we have here is supposed to stop that. If the system wasn’t corrupt.
Whole set-ups, both, privileges the powerful.
bloke in spain.
No.
We do NOT have “if you do not get the evidence ready in X number of days – he walks”.
That is the incentive to get the job done.
If there is not the threat that the person will just walk – then the administrators will just let things slide…..
Delay, delay, delay.
As the person rots in prison.
I’m perfectly comfortable with the fact that some criminals will walk because I don’t live in a police state.
No, that’s not the system that Spain has, seeing as how people can be detained for up to 4 years.
Jordan – I doubt that happened under Scots law.
What happened was, facing the dead line, the legal officers “pulled their finger out” and actually did their jobs.
In England and Wales things were different.
If people (particularly officials and lawyers) are allowed to waste time – they will waste time.
After all the officials and lawyers are not in prison.
So what do they care if someone is being raped to death there?
bloke,
First, in a libertarian society, there would be no victimless ‘crimes’. How quickly could you have been ready to present your evidence when you were robbed? If you are like me, most of the time the sooner the better while everything is fresh in your mind. If you need more time, then you tell the court why you need the time and ask them to keep the suspect longer. The suspect has a chance at that hearing to argue against extending their confinement or delaying the trial.
Second, in both a libertarian and a typical Western state with ‘crimes’ against the people, public order, etc, defendants get bail and they can go to bail bondsman who decide whether they are a risk to escape or not. That takes all but the price of bail out of the courts hands and allows an obviously non escape prone suspect to be released. Perhaps they may put up substantial assets as collateral for the bail bond. If they cannot get a bondsman to put up their bail, that is the market’s decision, not a bureaucrat’s.
I look for enlightenment from llamas, Sunfish, et al, but I suspect that in crimes with a victim, evidence is ready for presentation within a few days at most (blood work, finger prints, etc) and most time is lost in identifying the suspect. If it takes a very long time to prepare a case against a known suspect, that in itself should arouse suspicion. The cases of complicated financial crimes against a person, probably in most cases the evidence that actually leads you to the perpetrator is suitable for presentation in court. The delays in Western justice are, I strongly suspect, an artifact of the invention of victimless crimes.
Just to add a little to what Midwesterner said so well, if Bloke in Spain were engaged in some sort of complex financial fraud scheme simply finish the investigation before you arrest him. If he is not made aware (such as through a little thing like an arrest, which he is likely to notice) that you’re on to him he isn’t going to run. And after the arrest, if you’re afraid that he’s a flight risk make the argument to the court. It can set bail at a high enough level to be a deterrent (and, I might note, bail bondsmen take a dim view of people who skip on their bail, and have a very good record of hunting them down, even in another country.)
And as to his point that the system favors the rich, yeah, so what? All systems do. But the examples he cites are merely illustrations of wealthy suspects themselves delaying the process, not the state doing so. If a defendant doesn’t want a speedy trial that’s fine; it’s his choice. We’re only concerned here with a defendant being incarcerated indefinitely without any chance to answer the charges or seek bail. That is truly corrupt.
Agreed.
Investigate as much as you can before the arrest.
Then carry on investigating after the arrest.
If you can not get the job done – even with the 110 days in prison (waiting for trial) that Scots law allows.
Then you are incompetent and should not be in the job.
@ Jordan “I’m perfectly comfortable with the fact that some criminals will walk because I don’t live in a police state.”
You absolutely sure about that? There’s a guy I knew personally. In that area he was a bit hard to avoid knowing. Shot a man & his young boy. Contract killing. Victim took his kid to the meet. Sunshine did the job, tidied up the loose end, incinerated the bodies. Police had him on remand for a while. Walked. Lack of evidence. I know he did it. Lot of people knew he did it. Police knew he did it. He didn’t exactly make a secret of doing it. But unless you were very very sure you weren’t seeing him again you wouldn’t want to know.
About 30 years ago. If anyone feels like being nosy.
From what I’ve heard, since, he got community punishment on another matter. Thrown in a concrete mixer. Quite a lot of him survived.
Midwesterner’s mention of bail-bond’s worth considering. Effectively puts the decision on freedom with the community. If the court sets the bail threshold too high a person of good character should be able to get a bond. The bondsman as much a part of the community as anyone else.
As for Laird’s first para. Any lawyer care to explain it to him? There’s not much to investigate before the arrest in that sort of case. Seizing the evidence tips the crook. If he knows the evidence will convict he’ll skip. And be managing rolling the money trail up faster than the investigators can find it. Same with big time drug busts. Top dealers never even see the dope or the money. The only product they see’s the profit.
bloke in spain,
In the US we are currently having debate over whether the government ever needs to tell a suspect they have been under surveillance. Since very little evidence is physically collected prior to LEO awareness of its existence, investigations of suspects are occurring all of the time without the suspect’s knowledge. Once the LEOs think they know the whereabouts of enough evidence, or believe their surveillance acquired evidence is adequate, they move. Whether the acquired evidence is convictable or not is a matter for the courts, habeas corpus.
The big question (in very limited circles) in the US is whether, when LEOs determine via surveillance that the suspect is not prosecutable, the suspect ever needs to know. Pretty clearly to anybody who believes in the rule of law, the Fourth Amendment controls until the Fifth Amendment is invoked (via a warrant or prosecution). The debate is whether not ever informing the suspect that they had lost their Fourth Amendment protections via a Fifth Amendment warrant violates the suspect’s ability to challenge ‘probable cause’ and encourages reckless and unaccountable surveillance. I’m on the side that says it does and all searches and seizures including electronic means must be reported to the suspect either via charging with a crime or disclosure after the investigation. There must be time limits of course or the LEO community would simply elect to leave all investigations open in perpetuity.
To address your general concern about extremely violent, clever and determined criminals, I do not trust any government with the power that would be necessary to match them on even terms. The RICO statute attempts to but has, like any and all powers given to the government, been very abused. For those kinds of cases, self defense where it will work. And in cases were it won’t, as you point out in the specific case you mention, community punishment is a civilly dangerous but effective last resort. I fear vigilantes operating outside of the government less than I fear vigilantes operating within government under color of law.
More.
Mid, thanks for that link; I hadn’t seen the article before. It’s about damn time someone challenged those National Security Letters; they are blatantly unconstitutional. I don’t have a problem with the non-disclosure part per se, but rather with the fact that they are self-issued. No warrant or similar demand for information should ever be issued without the imprimitur of a court; the risk of abuse is simply too great (and, indeed, the FBI has been repeatedly rebuked for precisely that). It’s not difficult to get a warrant (indeed the FISA court exists solely for that purpose, with judges on call 24/7/365), but the government has to be able to demonstrate probable cause. Without court review that standard will rarely be met. (Which is not to say that the court won’t merely rubber-stamp the request, and the FISA court has been notoriously lenient in issuing warrants. But at least there is a chance at meaningful judicial review before the fact.)
Bloke, to allay your fears, I am a lawyer and I do have a vague idea of what I’m talking about. Investigations can and should proceed without the target being aware of them. And if there is a legitimate concern that the target is becoming wise to the investigation and is likely to flee or destroy evidence, then by all means arrest him but conclude your investigation with alacrity, rather than sitting on it for a couple of years. Then make your charge (and by the way, additional charges can be added later if new evidence comes to light), and give him the opportunity to seek dismissal at the arraignment (unlikely) or to have bond set. To do otherwise is simply governmental abuse.
I’m with Jordan: having a few criminals slip through the cracks is a small price to pay to live in a free society rather than a police state. Oh, and if you check your history, you’ll see that police states have a rather dismal record of preventing crime anyway. Not only is the cure worse than the disease, but the “cure” is anything but.
Laird.
I think you misunderstand my position, here. I don’t disagree with what you’re saying. I don’t disagree with a lot of the other comments, either. I’m asking you a question which you seem to be unable to answer. You’re not content with the system as is. But what are your suggestions for a system that delivers what you want?
Take your “conclude your investigation with alacrity”
Your actually balancing a number of different interests there. There’s the interest of the accused not having to languish on remand while the investigation takes place. There’s the interest of the rest of us that a criminal does not escape justice. You can accelerate the investigation of a crime by giving more powers to the investigators. But those same powers can be a threat to the innocent. Or you can simply have more investigators. Do we need more people snooping into our lives? It’s possible the system we have could provide the desired result if, as was said above, the people concerned ““pulled their finger out” and actually did their jobs.” So how do you make them?
Maybe because I don’t have the academic bent of a lot who post here, I’m a lot less interested in venting wind & a lot more interested in finding practical solutions to problems. Any system of criminal justice is a balance of protecting the freedom of the individual against protecting the individual from the predations of those who would do him wrong. Fine words like “rather x number of guilty should go free than one innocent be imprisoned” are simplistic crap. Set the balance wrong & the innocent still get imprisoned. It is the fate of the weak & powerless. The ones who walk aren’t the Hollywood version of Robin Hood with a cheeky grin. They’re the real life criminal with the money & power to threaten & intimidate & of course, to hire clever lawyers.
It was me who said the government officials should “pull their finger out”.
And I have already told you how to make them do so.
For example, in Scots law if the trial does not start with 110 days of someone being thrown into prison, they go free (and trials are also time limited).
I assure that places like Glasgow are hardly sleepy little villages – they have plenty of very nasty criminals indeed.
If Scots law can deal with time limits – so can English (or any other) law.
Actually, Bloke, I am reasonably content with the US system as-is (“speedy trial” rule, no detention over 48 hours without probable cause demonstrated in court, relatively liberal bail, etc.). Or at least with these portions of the US system (obviously there are other parts which give a problem.) But it’s the Spanish system (and, I think to a larger extent, other civil law systems) which we are discussing here, and from the information provided in the original essay that one appears to be seriously f*cked up.
Most crimes aren’t insanely complicated electronic financial fraud cases. In fact, most aren’t murders or even violent crimes at all. The rule can’t be consumed by the exception. Your fear that somewhere, somehow, some violent killer-for-hire will game the system and escape punishment shouldn’t outweigh the very real risk of ordinary people, such as the poor woman discussed in the original post who was erroneously swept up in a larger international money-laundering investigation, being held for more than a weekend or so without having the chance to demonstrate her innocence or at least being permitted to post bond. There are far more examples of the latter than the former. Any system which routinely, and unapologetically, permits such a result is seriously flawed.