Ain't Nobody's Business If You Do

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

LAWS AGAINST CONSENSUAL ACTIVITIES DISCRIMINATE AGAINST THE POOR, MINORITIES, AND WOMEN


Because law enforcement resources
have been concentrated
on the street drug trade
in minority communities,
drug arrests of minorities
increased at 10 times
the rate of increase for whites.
LOS ANGELES TIMES
IF YOU HAVE LOTS OF money, you can pretty much take part in consensual crimes with impunity. (Note that not even one of Heidi Fleiss's well-heeled clients was investigated, much less arrested. She—far less rich and powerful than they—is left to hold the outrageously heavy bag.) A middle-class person runs more risk than a rich person, and a poor person runs the greatest risk of all.
Rich people have drugs delivered by a reputable dealer who supplies "pure" drugs of uniform strength. Middle-class people go to the apartments of fairly reputable dealers, who sell drugs of varying degrees of purity and potency. Poor people go to crack houses or street corners; the dealer and potency are unknown; the impurity of the drug is guaranteed.
In addition, crack houses established for more than a week are well known to both police and crooks. The crooks know that everybody going there has money; the police know that everyone leaving has drugs. On your way in, the crooks ask for a small donation (oh, one hundred percent) of your drug money (and, if you have it on you, your rent money, food money, and season-tickets-to-the-Philharmonic money). On your way out, the police arrest you.
As it is with drugs, so it is with all the consensual crimes. With prostitution, the rich can afford expensive, exclusive escorts; the middle class deal with relatively safe call girls; and the poor take their chances with hookers on the streets. For legal gambling, the rich can fly to Atlantic City or Las Vegas. The middle class enjoy poker clubs or Las Vegas Nights at the local church; but the poor are stuck buying lottery tickets at the supermarket (which, as we shall see in the chapter on gambling, have worse odds than even the most crooked gambling casino).

He didn't know the right people.
That's all a police record means
in this rotten crime-ridden country.
RAYMOND CHANDLER
Across the entire spectrum of consensual crimes, the poor have less selection, lower quality, more arrests, higher risks, and a far greater chance of being victims of genuine crimes.
As we explored in the last chapter, consensual crimes are sporadically enforced. This type of arrest pattern invites a law enforcement officer to act on his or her personal prejudices, especially cultural stereotypes. The prosecutor, judge, and jury will—sometimes subconsciously—go along. "Blacks and Hispanics use drugs." "Provocatively dressed women are prostitutes." "Effeminate men are homosexuals." And on and on.
All of this accounts for the outrageously disproportionate consensual crime arrest rates between rich and poor and between whites and blacks. According to the 1991 Uniform Crime Reports, 58% of the drug arrests were of whites versus 41% for blacks; 45% white arrests for gambling, and 47% black arrests for gambling. For prostitution, 60% white, 38% black. Vagrancy, 51% white, 47% black. This sounds evenly distributed until you consider that, in 1991, blacks composed only 12% of the U.S. population. Does this mean that blacks are more crime prone than whites? No. For a crime where there really is a victim, driving under the influence of drugs or alcohol, 89% of those arrested were white, only 9% black. This means that on a per capita basis, roughly the same number of blacks as whites were arrested for driving under the influence of alcohol or narcotics. On the other hand, also on a per capita basis, three times as many blacks were arrested for drug abuse than whites.

The ultimate measure of a man
is not where he stands
in moments of comfort
and convenience,
but where he stands at times
of challenge and controversy.
MARTIN LUTHER KING, JR.
When focusing on a single drug, crack cocaine, the statistics are even more staggering. Here is an excerpt from a front-page story in the Sunday, May 21, 1995, issue of the Los Angeles Times (Keep in mind that the Times is one of the most anti-drug major newspapers in the country.):

War on Crack Targets
Minorities over Whites

Cocaine: Records show federal officials almost solely prosecute nonwhites. U.S. attorney denies race is a factor.

A growing chorus of scholars, civil rights advocates and clergy contend that the vast disparity in sentences between white and nonwhite crack dealers illustrates how the war on drugs has unfairly punished minorities.

Whites are more likely than any other racial group to use crack, according to surveys by the National Institute on Drug Abuse. But the U.S. Sentencing Commission reports that about 96% of the crack defendants in federal court are nonwhite. And, records show, the majority are low-level dealers, lookouts and couriers rather than drug kingpins.


If we accept and acquiesce
in the face of discrimination,
we accept the responsibility
ourselves.
We should, therefore,
protest openly everything . . .
that smacks of discrimination
or slander.
MARY McLEOD BETHUNE

A commission survey in 1992 showed that only minorities were prosecuted for crack offenses in more than half the federal court districts that handled crack cases across the country.

No whites were federally prosecuted in 17 states and many cities, including Boston, Denver, Chicago, Miami, Dallas and Los Angeles. Out of hundreds of cases, only one white was convicted in California, two in Texas, three in New York and two in Pennsylvania.

While defending themselves in court last year against accusations of discrimination, federal prosecutors in Los Angeles stated that they did not contest accusations that only minorities have been prosecuted federally for selling crack.

"Unfortunately, in this court's experience, those high in the chain of drug distribution are seldom caught and seldom prosecuted," said U.S. District Judge J. Spencer Letts in Los Angeles, as he gave a 10-year sentence to a young black man—a college graduate who had mailed a package containing crack.

In another Los Angeles case, U.S. District Judge Richard A. Gadbois lamented handing down a mandatory 10-year prison sentence to a welfare mother of four who was paid $52 to mail a package that, unbeknown to her, contained crack.

"This women doesn't belong in prison for 10 years for what I understand she did," Gadbois said. "That is just crazy."

This uneven enforcement tends to support the belief held by the poor and nonwhites that the police are there to protect the rich and the white from—and at the expense of—the poor and nonwhite. The uneven enforcement increases distrust and contempt for all law enforcement among the poor and nonwhites. In these racially troubled times, it is a rift that we can ill afford.


Government is like a baby.
An alimentary canal
with a big appetite at one end
and no sense of responsibility
at the other.
PRESIDENT RONALD REAGAN
Edwin M. Schur observed in his landmark book, Victimless Crimes,

The uneven impact of actual enforcement measures tends to mirror and reinforce more general patterns of discrimination (along socioeconomic, racial and ethnic, sexual, and perhaps generational lines) within the society. As a consequence, such enforcement (ineffective as it may be in producing conformity) almost certainly reinforces feelings of alienation already prevalent within major segments of the population.

Alcohol is used by 17% more whites than blacks (all these figures are on a per capita basis), and alcohol, society says, is fine (and legal). Marijuana is used once a week or more by twice as many blacks as whites, and marijuana, we're told, is bad. Blacks use heroin four times more often than whites and, well, heroin is so bad (we've been told), we are not to even think about it.
On the other hand, hallucinogens are used by three times more whites than blacks, and we don't worry much about hallucinogens at all. How many peyote busts have you seen on COPS? Who was the last politician promising to "Get tough on mushrooms"? When was the last time you were warned that LSD would ruin your chromosomes? Whites use nonprescribed (illegal) tranquilizers 50% more often and stimulants twice as often as blacks, and we hear very little about these "dangers."
Wouldn't it be better for all classes of society—economic, ethnic, racial, sexual, and religious—to agree that physically harming the person or property of another is simply wrong, immoral, and will not be tolerated by rich, poor, black, white, or anyone else? Wouldn't this allow for unity within diversity? Isn't this the basis of a saner, freer, yet safer society?
Bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will to be rightful must be reasonable; that the minority possess their equal rights, which equal law must protect, and to violate would be oppression.
THOMAS JEFFERSON
1801
Because of our preoccupation with consensual crimes, we are raising a generation who believes anything is right as long as you get away with it.
Those who wish to sit smugly by, expecting police to ram the "proper" moral values down the throat of every "heathen, infidel, and low-life," may find that the heathens, infidels, and low-lifes are, to quote Paddy Chayefsky, "as mad as hell and not going to take it anymore." If for no other reason than to protect their own person and property, those currently in power should allow others to do whatever they please with their person and property.
If the arrests for consensual crimes were proportionately spread among the middle class and the rich, they wouldn't be crimes for long.

Women

Fewer than 6% of the prison population are women. At best, this means that women are more honest, peaceful, and law-abiding than men. At worst, it means that women are too smart to get caught. Whatever the reason, it's clear that men are, unquestionably, the criminal element in this country.
The crimes for which women are arrested, however, are more likely to be consensual crimes.
Almost 34% of the women in jail are there for drug offenses (compared with 22% of the men). In fact, there were more drug arrests of women than arrests of women for murder, manslaughter, rape, robbery, aggravated assault, burglary, motor vehicle theft, and arson combined. More than 20% of the arrests for that catch-all consensual crime, "disorderly conduct," are women. And, not surprisingly, more than twice as many women are arrested for prostitution than men (the only crime in which women outnumber the men.)

How wonderful it is
that nobody need wait
a single moment
before starting
to improve the world.
ANNE FRANK
Women not only commit fewer crimes; the crimes they commit tend to be crimes without victims. Consequently, enforcement of laws against consensual activities strikes more heavily against women than against men. Perhaps this is why the song, "T'aint Nobody's Biz-ness If I Do," has been recorded more by women than men.
Meanwhile, women are more likely to be the victims of real crime (rape, obviously, and crimes such as purse-snatching, for which there is no male equivalent) than are men, and the police—diverted to catching consensual criminals—leave women unnecessarily unprotected.
If plainclothes police officers went to high-crime areas and protected women rather than high-vice areas and arrested women, we'd all be a lot better off.

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