Ain't Nobody's Business If You Do

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

LAWS AGAINST CONSENSUAL ACTIVITIES ARE TOO RANDOMLY ENFORCED TO BE EITHER A DETERRENT OR FAIR


We simply do not catch
a high enough percentage of
users to make the law a real threat,
although we do catch enough
to seriously overburden
our legal system.
JACKSON ELI REYNOLDS
The Washington Post
THE PERFECT LAW, when broken, is followed by immediate punishment. This punishment follows in all cases, in all situations, every time the law is broken, no matter what.
The best example of this is the law of gravity. Each time we violate the law of gravity, the consequences are immediate and consistent. If you drop something, it falls—every time. The law of gravity is not suspended for your birthday, religious holidays, or because you have friends in high places. What do we do when a law is so absolute and unrelentingly ruthless? We obey it and we forget about it. Even when something falls and breaks, we seldom blame gravity.
And so it is with crime laws. The more likely one is to get caught, the less likely one is to commit a crime.
There is, for example, a greater chance of being arrested and convicted for robbing a bank than for robbing a retail establishment, and a greater chance of getting caught robbing a retail establishment than a home. Criminals know this, which is why more homes are robbed than retail establishments, and more retail establishments are robbed than banks. But even house burglaries are kept in check because every burglary has a genuine victim—the owner of the house—and the crime usually gets reported to the police.
Consensual crimes, however, by definition, have no genuine victims. If you visit a prostitute or place a bet with a bookie, neither you nor the prostitute nor the bookie is going to call the police to report the "crime." Each time a person takes part in a consensual crime, there is only a miniscule chance that person will be caught. Thus, the deterrent factor in consensual crime is almost entirely missing.
The growth of drug-related crime is a far greater evil to society as a whole than drug taking. Even so, because we have been seduced by the idea that governments should legislate for our own good, very few people can see how dangerously absurd the present policy is.
JOHN CASEY
For every consensual crime arrest, there are millions of undetected, unreported, and unpunished occurrences. Some say the answer is to beef up law enforcement, make more arrests, and put 'em all "behind bars where they belong." It is just such statements—bristling with ignorance and arrogance—that have gotten us into the mess we're in today. If every person who ever committed a consensual crime were put behind bars, there would be more people behind bars than in front of them.
"Make the punishments more severe! Set an example!" That doesn't work either. Historically, when consensual crimes were punished more severely than now—by flogging, dismemberment, burning at the stake—the incidence of consensual crimes was not abated, nor did harsh punishment "set an example" for the youth. It sometimes made the consensual crime irresistible. "If people risk torture for it," some concluded, "it must be pretty terrific."
Each time you get in a car, there is a statistical chance you will be injured, disabled, or killed. If you knew that you were going to be involved in an accident on a particular day, chances are you wouldn't drive that day. Not knowing on what day it will occur, however, you get in your car and drive off, thinking about where you're going and what to listen to along the way, not about death on the highway. Each time someone takes part in a consensual crime, there is a chance—a statistically slim chance, but a chance—that he or she will be arrested, tried, and sentenced to prison. It is a such a small chance, however, most people don't even think about it.

The ultimate result
of shielding men
from the effects of folly
is to fill the world with fools.
HERBERT SPENCER

If the chance of punishment is so slim, why even write this book? One of the reasons (the one being discussed in this chapter) is fairness to those who are unlucky enough to be in the wrong place at the wrong time.

The pain and suffering heaped on this random sampling, the 4,000,000 unfortunates each year who happen to be caught partaking in a consensual crime and, especially, the 750,000 currently in prison, can be eliminated overnight through legislation. We need only repeal the laws that put them in jail in the first place and grant a general amnesty for those who fell on the short side of the odds.

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