Stopping the war on victimless crimes
Every law created by state and national legislatures is a law that is backed up by people with guns. Let that sink in. Every law on both ends of the spectrum, from serious to trivial, from murder crimes all the way down to how you throw away paint chips is ultimately backed up with the threat of violence. Does that seem right to you?
All too often, law enforcement is using lethal violence in enforcing laws that in the grand scheme of things are not worth an arrest, much less taking a human being’s life.
But recent events such as the unlawful killings of George Floyd, Rayshard Brooks, and others have brought to light a great many problems with this country’s system of law.
In both of the instances I mention above, Black men were killed while being arrested for petty crimes. Justified outrage ensued. Calls for reform are many.
But I am afraid much of the call for reform has been geared toward window dressing and political theater. Real reform requires revisiting the foundations and assumptions in our legal system, and ultimately a tear down and rebuild of our criminal codes.
And that requires revisiting the war on victimless crimes. This war on victimless crimes, including the war on drugs, has disproportionately impacted Black, Hispanic, and impoverished people. But so far, many of the biggest supporters of victimless crime laws and the enforcement of those laws, are the very politicians and leaders who claim to be speaking on behalf of the Black and brown communities.
It’s time for a rethink about what should be a crime in this country. And there is a simple principle I’ve held for a while that would lead to positive reform.
No victim = no crime
This principle, though simple in its construction will yield massive benefits. It’s a way of putting theory into action.
Will it fix everything we’re grappling with? No, there’s that whole virus thing going on. But no victim = no crime will be the start we need. And it’s likely something Americans of almost every political stripe and persuasion can agree upon.
It will require a massive legislative and philosophical overhaul. It won’t be easy, but it is necessary for lasting, meaningful reform.
Legalism as a form of tyranny
But thus far, the debate around reform has been an unproductive one. Other than politicians shouting past each other, much of the reform debate has devolved into academic pseudo-babble, including curious theories about who is allowed to express an opinion about reform and whose opinions are not valid based upon their race. (I feel like there must be a term in the English language for that sort of race-based fallacy, but the term must have recessed into a chasm in my brain.)
Meanwhile, we have seen politicians do their performative gestures, suggest reforms that will ultimately be hollow, and offer up self-serving proposals, using the situation to try to do the things they wanted to do anyway. (Paving the way for D.C. city-statehood (instead of giving it back to Maryland) and a forced rebalancing of the senate.)
But we can do something meaningful if we elect the right sort of lawmakers who believe in setting the proper role for both the law and for law enforcement by following the principle of no victim = no crime.
For those of you who have known me a while, especially those of you who knew me when I had the luxury of delving into the ideological vagaries of the law, this principle of stopping the war on victimless crimes has been on my lips since the George W. Bush administration.
At the core of my theory is that the U.S., despite its relative freedom in the world, employs a form of tyranny called legalism that dates back more than two thousand years to ancient China. This form of tyranny has been adored by Western democracies and is at the root of our system.
The idea behind legalism is the fundamental assumption that people are more likely to respond to prohibitions as opposed to encouragement. I’ll leave it to the psychologists as to whether this is true or not. But the result of legalism in the long run is an overly complex set of laws that every citizen violates just about every day. As a result, any citizen can be arrested by men and women with guns, under threat of deadly force, at any time, for nearly any reason.
A quagmire of victimless crimes
There are a plethora of crimes with no discernible victim.
Some are crimes against public morals, like selling alcohol at the wrong time of day. Some are crimes against public health, like possessing magic mushrooms or cocaine. Some are crimes against public safety, like driving with expired plates. Then there are crimes against the administration of justice, such as lying to an FBI agent.
But these examples are just the laws that most people are aware of.
The fact is that the federal criminal code has more than 3,000 criminal statutes. That’s already quite a lot. Combine that with everyone is subject to state and or local codes, and you can easily quadruple that.
Now take the fact that there are tens of thousands of civil laws, all enforceable to the point of violence. And there are hundreds of thousands of regulations, not passed by legislative bodies, but by executive agencies that regulate your behavior. These regulations range from the obvious, such as the manner of paying your income tax to the not so obvious, like rules governing how bananas can be shipped from state to state. Most of these regulations are civil on their face, but behind every civil regulation is the threat of force and the possibility of a violent confrontation with law enforcement.
The possibility for violence exists for all laws, even laws that on their face only call for a fine. This is due to the principle of escalating enforcement.
Escalating enforcement
Here’s a rough example of how escalating enforcement works: Say there was a regulation governing how many packs of cigarettes you can bring from a low tax jurisdiction to a high tax jurisdiction for your own personal use. Say you brought home 10 cartons when the regulation only permitted you two. If the state department of revenue found out about you, they would not send someone out to arrest you, at least not right away.
They would engage in primary enforcement, low level tactics that will usually get you to do what they want. They would likely send you a demand letter, demanding you stop, perhaps asking for a fine.
But say you did not stop. Say you kept driving across state lines to get your tobacco.
The next step would be something on the order of you receiving a summons to appear in an administrative hearing. If you do not go to that hearing, the next step might be to call you into a court of general jurisdiction. If you do not appear, you will get a default order against you demanding you pay your fine.
Say you ignored it.
Now you enter the realm of escalated enforcement to the point of violence. The next step is an order of contempt and an order to pick you up.
Now, entirely through inaction after your initial offense, you have an arrest warrant. You can be physically arrested and harmed by a guy with a gun. Over cigarette taxes.
This is how there is a threat of violence behind every law, no matter how piddly it is.
And things escalate too quickly on the street. But when law enforcement officers are also responsible for enforcing petty violations like drinking in public, holding untaxed cigarettes, or jaywalking, primary enforcement escalates all too quickly.
“Well if you don’t like it, change the law”
Both citizens and law enforcement are in a bind because our ridiculously complex system of law. Due to the complexity of our legal system, each person is guilty of something that could lead to their arrest.
But due to resource constraints, most of these laws are very selectively enforced. There simply are not enough cops to go around enforcing every legalistic mandate passed by a legislative body. Meanwhile, major crimes with actual victims are falling through the cracks.
When I bring the issue of legalism up to members of law enforcement, most police officers have said something along the lines of, “My job is to enforce the law. If you don’t like it, change the law.”
They’re onto something. The power to fix this barbarous system of legalism rests in the hands of legislative bodies from congress, to state legislatures, down to city councils everywhere. Ultimately, the power to fix it rests with us, the people who elect the members of these legislative bodies.
Stopping the war on victimless crimes
Step one: Follow the principle of no victim = no crime.
If you cannot identify a person who has been hurt, whether it’s physically or financially, then there is no crime.
Will there be hotly contested exceptions to this rule? Very likely. I can foresee a heated debate over things like drinking while driving, where if there is no crash or accident, there is no victim. But the benefits of removing vast swaths of victimless crimes that subject people to violence are probably worth having those debates.
And the debate on DUI laws is worth having. If you don’t think so, imagine how things would have played out if Rayshard Brooks’ DUI stop was handled via sending out a social worker and a tow truck instead of men armed with Tasers and guns. Do you think it would have ended differently?
Step two: Overhaul the laws
All criminal statutes will need to be reviewed now and on an ongoing basis.
All victimless crimes are now demoted to infractions free of criminal penalties and the threat of government force.
Step three: Change the enforcement of infractions
This step is essential. It means two things:
1: Infractions are only enforceable through fines.
2: Fines are only enforceable through garnishment and other contactless means. There really is no excuse with the modern technology available to us to arrest someone over nonpayment, when funds can be obtained any number of contactless ways, such as garnishment, account liens, withholding tax refunds, etc.
In essence this means that only true crimes can result in arrest, jailing, and incarceration.
Will stopping the war on victimless crimes be easy?
Will this be easy? No. Power is at stake. There are people with entrenched interests in maintaining the status quo. There are also people who have much to gain by distracting people from real solutions and instead engaging in divide and conquer tactics geared to advance their political agendas.
But will stopping the war on victimless crimes be worth it? My two cents is it is the single biggest reform needed in this country today.
And it should not just be a piecemeal, one and done thing. True decriminalization of laws involves looking at every law and regulation on the books and every piece of legislation being considered and analyzing them for if the penalties related to them should be crimes or infractions.
When in doubt, ask yourself: Is this something that should be enforced at the barrel of a gun?