Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

CONSENSUAL CRIMES ENCOURAGE REAL CRIMES

[When a victimless criminal] is
treated as an enemy of society, he
almost necessarily becomes one.
Forced into criminal acts,
immersed in underworld-related
supply networks, and ever-conscious
of the need to evade the police,
his outlooks as well as behavior
become more and more anti-social.

WE LIVE IN A SOCIETY of agreements; in fact, if these agreements (or, if you prefer, contracts) were not in place and voluntarily kept by most of the people most of the time, society as we know it would be impossible.

We agree, for example, to drive on the right side of the road. Why? It's a fairly arbitrary decision—half the world drives on the left side of the road. We, however, drive on the right side of the road. Even though no one asked our opinion as to which side of the road we would prefer to drive on (it was a decision made long before we were born), we still follow that agreement almost unthinkingly.

Can you imagine what driving would be like if even one-hundredth of one percent of the drivers refused to honor that agreement—if they tried to drive on the left side of the road at every possible opportunity? Can you imagine the chaos? The six-foot cement walls dividing even country lanes? The number of police it would take to force all cars to drive on the right side of the road?

During the 1992 Los Angeles riots, television showed us what happens when our tightly knit fabric of agreements begins to unravel. There was simply no way law enforcement could stop people from looting. The video images of this were astonishing: people would be seen carrying televisions, dishwashers, and VCRs out of appliance stores; a police car would pull up; people would set down whatever they were carrying, walk two feet away from it, stand there; the police car would drive off; people would put the loot in their cars and go back for more.

Thieves respect property.
They merely wish the property
to become their property
that they may
more perfectly respect it.

Watching an entire store picked clean in less than thirty minutes by an unorganized group of people struck fear in the hearts of Los Angeles residents: "What would happen if these people came to my house? What would stop them from coming into my apartment and taking everything I own in a matter of minutes?"

Answer: nothing.

Then something interesting happened. On television, one bit of video was played over and over. At first, it was humorous, but, with repeated viewings, it grew increasingly disturbing. The video showed someone who had put a looted television in the back of his pick-up truck. While he was caught in the traffic jam caused by other drive-in looters, two pedestrian looters picked up the television from the back of his pick-up truck and walked away with it. The original looter had a choice: his pick-up truck or the television. He chose his pick-up truck—and also avoided the confrontation of the superior two-against-one force.

Even people watching the scene it on freshly looted televisions began to realize that anyone with superior force could come in at any time and take the TV. The police could no more protect them than the police protected the store that owned the television set only hours before.

It wasn't the curfew or calling out the National Guard or a "show of strength" that brought an end to the riots. It was people voluntarily returning to the social contract of not harming other people's person or property. They did it out of fear—not fear of jail, but fear that, if most people did not voluntarily keep that contract most of the time, one's own possessions could never be considered secure—not ever, no matter what. People, as they say, "returned to their senses," and the sense they returned to was common sense.

Members of society
must obey the law
because they personally believe
that its commands
are justified.

It is not police protection, it turns out, that keeps us safe. It is the social agreement not to harm each other's person and property. The police are there—and can only be there—for that small percentage of people who choose not to honor the agreement.

When government comes along, certain agreements become written down as laws. For the most part, the laws existed before we were born and the laws will exist after we're gone. Some of them are absolute ("Thou shalt not steal") and some of them are arbitrary ("Drive with your headlights on, not your parking lights"for, anyway?>). In Rome, for example, people drive at night with their parking lights on, but their headlights off. It works just as well and gives the city a quieter, softer glow.

Most people are willing to cooperate with both the absolute and the arbitrary laws of the government into which they were born, providing (a) the majority of people follow them, and (b) those agreements are fair: that they somehow make sense. "Don't harm other people's person or property and they won't harm yours" (a modern restating of "Do unto others as you would have them do unto you") makes sense. We will make personal allowances for others, knowing that others are making personal allowances for us. For those who don't choose to obey this fundamental agreement, there are police, courts, and jails.

When laws are irrational, however, people are less likely to sacrifice in order to obey them. A law against an activity which potentially can only hurt the person or property of the person committing the "crime" is far less likely to be honored than a law against an activity that does physical harm to the person or property of another.

What I'd like to see police do
is deal with important issues
and not these sorts
of victimless crimes
when society is riddled
with problems.

Far, far, more consensual crimes take place than crimes with genuine victims. We hear more about crimes with genuine victims because these crimes tend to get reported. The victim calls the police and says, "Hey, there's been a crime here." With a consensual crime, who's going to call the police? Except for some busybodies, do-gooders, and police entrappers, no one's going to report a consensual crime. And, unless a celebrity is involved (The Hugh Grant Syndrome, Part III), most consensual crime arrests are not reported on the news.

People take part in consensual crimes because the activities are appealing. A person discovers that he or she has broken the law, had a good time doing it, and reaped few, if any, negative consequences. This positive reinforcement makes it easy to commit the consensual crime again. And again. And again. Other consensual crimes are tried. Not bad. Although not yet caught, the person is, nonetheless, living outside the law and a criminal many times over.

Meanwhile, the leaders of government—the keepers of the rules—are going on and on about how bad drug use, homosexuality, prostitution, etc., are. Our leaders certainly seem more concerned about these than, say, shoplifting, insurance fraud, stealing from work, or other crimes with genuine victims. Our government certainly seems to be more concerned with combating hookers, homosexuals, and heroin than it is with combating sexism, racism, and air pollution.

This creates a truly subjective morality based on what the powerful do and do not like. It allows consensual sex among adults, for example, to be linked with muggings, bashing, rape, and murder. We hear condemnations of "sex and violence" as though they were somehow the same. They are, in fact, nearly polar opposites.

It is not the business of the law
to make anyone
good or reverent or moral
or clean or upright.

The lines blur between genuine right and wrong, moral and immoral, good and evil.

The transition from committing consensual crimes to committing crimes with genuine victims can be an easy one. Once the fabric of obeying the rules is torn, it is very difficult to mend. The criterion for choosing a certain action is no longer "Is this right?" but "Will I get caught?" The person becomes an outcast in a world in which the police are the enemy and not the protector, in which everyone who appears to follow the rules of society is fair game, and in which one looks out for number one, no matter what the cost to others.

Declaring certain activities "criminal" has caused artificially inflated prices for the criminalized activities, thus guaranteeing real crime. If drugs were legalized and regulated, no drug user, even the most severely addicted, would have to spend more than $5 per day on drugs. As it is now, some people have $200, $300, $400 daily habits. To get $200 worth of drugs a day, one must be either (a) rich, (b) a doctor, (c) a thief, or (d) a drug dealer. Most end up, by default, at (c) and (d). In order to clear $200 a day, one must steal $2,000 a day in goods (fences pay about ten cents on the dollar) or directly rob enough people to accumulate $200 in cash.

According to Mark Moore of Harvard University, as reported by the National Institute of Justice,

Very large proportions of those arrested for street crimes such as robbery, burglary, and larceny are drug users. The addict's need for money to finance his habit and the mechanisms of addiction establish a link between drugs and crime. Insofar as drug use itself is illegal, society has linked drugs to crime directly. Any possession or use is, by definition, criminal conduct.

Petty laws
breed great crimes.

The result: each addicted drug user becomes a one-person crime wave. It's not the drug that causes the crime; it's the prohibition of the drug. Having to come up with $200 per day might turn any of us into criminals. Five dollars a day: that's easy. A drug user could get that panhandling. He or she might even get a part-time job.

Some drug users make the money to pay the artificially inflated prices by selling drugs—in fairly large quantities. As I have pointed out before, these people are not too particular as to whom they sell: they can't afford to be. If children have the money, they sell to children. Because the drug underworld cannot depend on police protection or take disputes to civil courts, disagreements tend to be handled in an unpleasantly messy, highly criminal fashion.

Consensual crimes also encourage real crime by eroding public confidence in law enforcement. People are afraid to cooperate with police because it may allow the police to discover some little, hidden, private secret that would be best for the police not to know.

As a heterosexual
ballet dancer,
you develop a thick skin.

Time was when people cooperated with the police fully, openly, immediately. If the police inquired about a friend or relative, it was assumed that the friend or relative was the victim of a crime and the police were trying to help. Now there is the fear that the friend or relative might be involved in a consensual crime. Our frank and immediate cooperation with the authorities might just help put a friend or a relative in jail. Even though we may not personally approve of our friends' or relatives' extracurricular activities, and may even think it best that they didn't take part in them, we don't want them to go to jail, and we certainly don't want to help put them there.

As most people at one time or another have taken part in one consensual crime or another, the respect given law enforcement officers has seriously eroded. A Robin Hood mentality has people identifying more with the criminals than with the police—who seem to be acting increasingly like the Sheriff of Nottingham.

Consensual crimes simply overburden an already groaning criminal justice system. With one serious, violent crime (murder, negligent manslaughter, forcible rape, robbery, aggravated assault, burglary, theft, motor vehicle theft, arson) taking place every two seconds in the United States, do we really want the precious time of law enforcement officials spent regulating the private lives of individuals? Stories such as this, from the June 13, 1991, edition of the New York Times, are increasingly common:

The man charged with stabbing a former Rockette to death was indicted yesterday as prosecutors remained under pressure to explain their handling of an earlier case against the defendant.

Wherever a Knave
is not punished,
an honest Man
is laugh'd at.

The Manhattan District Attorney's office has been criticized for allowing the defendant to plea bargain 15 months ago to a trespass charge after having been charged with attacking a woman with an ice pick. The defendant received a 45-day sentence and served 30 days. . . .

Mr. McKiever had been arrested three other times: in 1982 for trespassing, in 1982 for petty larceny and in 1978 for grand larceny. . . .

At a news conference announcing the indictment in the slaying, Robert M. Morgenthau, the District Attorney, defended his office's action last year. . . . "I don't blame the public for being upset. This is a tragedy, and I wish it could have been averted. There are a lot of potentially dangerous people running around on the streets, and we'd like to lock up every one of them, but we can't do it. . . ."

Some lawyers say Mr. Morgenthau and his prosecutors are often forced into difficult decisions by a system that is overburdened by too many criminals and not enough judges.

"People blame Mr. Morgenthau, but what really can he do?" said William E. Hellerstein, a professor at Brooklyn Law School. . . . "There is still a lot of time being devoted to victimless crimes, . . ." he said. "But meanwhile there are large chunks of activity, violent activity, that as a practical matter has become decriminalized because the system cannot cope."

Here's how overworked law enforcement is in the United States: Only 21% of the people who commit murder and negligent manslaughter, forcible rape, robbery, aggravated assault, burglary, theft, motor vehicle theft, or arson are ever arrested; 79% of them—almost four out of five—get off scot-free.

The most efficacious method
of dealing with deviancy
is to ignore,
to the furthest point
of our tolerance,
those items
which we find offensive.

The state of law enforcement is, in fact, worse than that. By the time the real criminals go through the court system, few of them spend any time in jail. According to the National Center for Policy Analysis,

Only 17% of all murders lead to a prison sentence; only 5% of all rapes lead to a prison sentence; and a convicted felon goes to prison less than 3% of the time in cases of robbery, assault, burglary, and auto theft.

With people literally getting away with murder (one conviction in six), only 5% of the forcible rapes leading to prison, and nearly eight out of ten burglars getting off without so much as an arrest, is it sane, rational, or practical to ask law enforcement to enforce "morality"?

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