The government of the
United States
is not,
in any sense,
founded on the Christian religion.
GEORGE WASHINGTON
Treaty of Tripoli
1796
Here's the condensed list of reasons why having laws against consensual activities is not a good idea (each point has a chapter of its own later in the book):
It's un-American. America is based on personal freedom and on the strength of diversity, not on unnecessary limitation and slavish conformity. The American dream is that we are all free to live our lives as we see fit, providing we do not physically harm the person or property of another.
It's unconstitutional. The United States Constitution and its Bill of Rights clearly give us the right to pursue our lives without the forced intervention of moralists, do-gooders, and busybodies.
Laws against consensual activities violate the separation of church and state. The Constitution guarantees that not only can we freely practice the religion of our choice, but also that the government will not impose religion upon us. Almost all the arguments in favor of maintaining laws against consensual activities have a religious foundation. The government is then asked to enforce these religious beliefs by arresting the nonbelievers and putting them in jail.
Laws against consensual activities are opposed to the principles of private property, free enterprise, capitalism, and the open market. If everything thus far has sounded hopelessly liberal, here's a nice conservative argument: Our economic system is based on the sanctity of private property. What you own is your own business; you can give it away, trade it, or sell it for a profit or a loss—none of which is the government's business. This is the system known as capitalism. We recently fought (and won) a forty-five-year cold-and-hot war against communism to maintain it. For the government to say that certain things cannot be owned, bought, given away, traded, or sold is a direct violation of both the sanctity of private property and the fundamental principles of capitalism.
If we've learned anything
in the past quarter century,
it is that we cannot
federalize virtue.
PRESIDENT GEORGE BUSH
1991
It's expensive. We're spending more than fifty billion dollars per year catching and jailing consensual "criminals." In addition, we're losing at least an additional $150 billion in potential tax revenues. In other words, each man, woman, and child in this country is paying $800 per year to destroy the lives of 5,000,000 fellow citizens. If we did nothing else but declare consensual crimes legal, the $200,000,000,000 we'd save each year could wipe out the national debt in twenty years, or we could reduce personal income tax by one-third. Another economic high point: moving the underground economy of consensual crimes aboveground would create 6,000,000 tax-paying jobs. And then there's the matter of interest. The $50 billion we spend jailing consensual "criminals" is not just spent; it's borrowed. The national debt grows larger. Six percent interest compounded over thirty years adds $250 billion to that $50 billion figure—a dandy legacy for our progeny.
Lives are destroyed. Yes, by taking part in consensual crimes, people may destroy their own lives. This is unfortunate, but that's their business. The problem with making consensual activities crimes, however, is that the government moves in and by force destroys the life of the consensual "criminal." A single arrest and conviction, even without a jail sentence, can permanently affect one's ability to get employment, housing, credit, education, and insurance. In addition, there is the emotional, financial, and physical trauma of arrest, trial, and conviction. If any significant amount of jail time is added to this governmental torture, an individual's life is almost certainly ruined.
Consensual crimes encourage real crimes. Because consensual crimes are against the law, taking part in them costs significantly more than is necessary. In order to pay these artificially inflated prices, some of those who take part in consensual crimes go out and commit real crimes: mugging, robbery, burglary, forgery, embezzlement, and fraud. If the consensual activities were cheap, real crimes would decrease significantly. In addition, to someone who is regularly breaking a law against a consensual activity, all laws may start to seem unimportant.
All men are frauds.
The only difference
between them is that
some admit it.
I myself deny it.
H. L. MENCKEN
Consensual crimes corrupt law enforcement. The law enforcement system is based on a perpetrator and a victim. With consensual crimes, perpetrator and victim are the same person. Whom are the police supposed to protect? Theoretically, they arrest the perpetrator to protect the victim. With a consensual crime, when the perpetrator goes to jail, the victim goes too. It's a sham that demoralizes police, promotes disrespect for the law, and makes arresting real criminals more difficult. Asking the police to enforce a crime that does not have a clear-cut victim makes a travesty of law enforcement. It's sad that the laws against consensual activities have turned one of the true heroes of our society, the honest cop, into an endangered species.
The cops can't catch 'em; the courts can't handle 'em; the prisons can't hold 'em. As it is, the police are catching less than 20% of the real criminals—those who do harm the person or property of others. There is simply no way that the police can even make a dent in the practice of consensual crimes. Even if the police could catch all the consensual criminals, the courts couldn't possibly process them. The courts, already swamped with consensual crime cases, can't handle any more. Real criminals walk free every day to rape, rob, and murder again because the courts are so busy finding consensual criminals guilty of hurting no one but themselves. And even if the courts could process them, the prisons are already full; most are operating at more than 100% capacity. To free cells for consensual criminals, real criminals are put on the street every day.
The first thing to learn
in intercourse with others
is non-interference with their own
particular ways of being happy,
provided those ways do not assume
to interfere by violence with ours.
WILLIAM JAMES
Consensual crimes promote organized crime. Organized crime in America grew directly out of an earlier unsuccessful attempt to legislate morality: Prohibition. Whenever something is desired by tens of millions of people each day, there will be an organization to meet that desire. If fulfilling that desire is a crime, that organization will be organized crime. Operating outside the law as organized criminals do, they don't differentiate much between crimes with victims and crimes without victims. Further, the enormous amount of money at their disposal allows them to obtain volume discounts when buying police, prosecutors, witnesses, judges, juries, journalists, and politicians. And guess who finances some of those let's-get-tough-on-consensual-crime campaigns? You guessed it. Once consensual crimes are no longer crimes, organized crime is out of business.
Consensual crimes corrupt the freedom of the press. Reporting on consensual crimes has turned a good portion of the media into gossips, busybodies, and tattletales (The Hugh Grant Syndrome). With so much important investigation and reporting to be done concerning issues directly affecting the lives of individuals, the nation, and the world, should we be asking one of our most powerful assets—the free press—to report who's doing what, when, where, how, and how often with other consenting whom's?
Laws against consensual activities teach irresponsibility. If we maintain that it is the government's job to keep illegal anything that might do us harm, it implies that anything not illegal is harmless. This is certainly not the case.
There were seven times as many black women in prison as white women in 1994, and the proportion of black men incarcerated was eight times higher than that of white men. Almost 7% of all black men were incarcerated in 1994, compared with less than 1% of white men. Drug crimes played a major role in the prison population increase.
LOS ANGELES TIMES
December 4, 1995
Laws against consensual activities are too randomly enforced to be either a deterrent or fair. The laws against consensual activities provide almost no deterrent whatsoever. If the chances of being caught at something are only, say, one in ten million, that's hardly a deterrent. In fact, their very illegality sometimes makes consensual crimes fascinating, glamorous, and irresistible.
Laws against consensual activities discriminate against minorities and the poor. In selecting which consensual activities should and should not be crimes, the views of the poor and minorities are seldom considered. Therefore, many consensual activities that the mostly white, male, heterosexual, affluent, Christian lawmakers have deemed illegal do not necessarily reflect the preferences or experiences of minority groups. Further, the laws against consensual activities are not uniformly enforced—the poor and minorities, for a variety of reasons, tend to receive the brief end of the stick.
Problems sometimes associated with consensual activities cannot be solved while they're crimes. Some people take part in consensual crimes as a symptom of, or escape from, deeper problems. These problems are not easily addressed until we dispense with the irrational, illogical, and transparently inaccurate myth that participation in the currently illegal consensual activities is always wrong. It wasn't until after Prohibition, for example, that those who had real drinking problems could see, admit to, and do something about them. Maintaining the fallacy that participation in illegal consensual activities is always wrong keeps those for whom it is wrong from doing something constructive about it.
We have more important things to worry about. The short list of national and global problems more deserving of our precious resources includes: real crime (robbery, rape, murder—the chances are one in four that you or someone in your household will be "touched," as they say, by a violent crime this year), abducted children (more than 400,000 abducted children each year), insurance fraud (a $100-billion-per-year problem that adds from 10% to 30% to all insurance premiums), illiteracy (one in seven American adults is functionally illiterate; one in twenty cannot fill out a job application), poverty (14.2% of the population—35.7 million people—live below the poverty level; a good number of these are children), pollution (all the pending environmental disasters cannot be summed up in a single parenthesis), our addiction to foreign oil (the Gulf War should have been called the Gulf-Standard-Mobil War), terrorism (the bombing of the World Trade Center was, in reality, a terrorist warning: the next time it might be an atomic bomb), AIDS (by the year 2000, the largest number of newly HIV-infected people will be heterosexual women), supposedly government-regulated but not-really-regulated industries (the $500 billion savings and loan bailout is an obvious example), and last, but certainly not least, the national debt ($5 trillion, and growing faster than almost anything in this country other than intolerance).
Truth resides in every human heart,
and one has to search for it there,
and to be guided by truth
as one sees it.
But no one has a right
to coerce others to act according
to his own view of truth.
MOHANDAS K. GANDHI
It's hypocritical. To give but one obvious example: Cigarettes do more damage and cause roughly one hundred times the deaths of all of the consensual crimes combined. Each year, 500,000 people die as a direct result of smoking. And yet, cigarettes are perfectly legal, available everywhere, and heavily advertised; tobacco growers are government subsidized; and cigarette companies are free to use their influence on both politicians and the media (and, boy, do they ever). How can we tolerate such contradictions in this country? We are, as Thomas Wolfe pointed out, "making the world safe for hypocrisy."
The legitimate powers
of government
extend to such acts
as are only injurious to others.
THOMAS JEFFERSON
Laws against consensual activities create a society of fear, hatred, bigotry, oppression, and conformity; a culture opposed to personal expression, diversity, freedom, choice, and growth. The prosecution of consensual crimes "trickles down" into ostracizing, humiliating, and scorning people who do things that are not quite against the law—but probably should be. "They're different; therefore, they're bad" seems to be the motto for a large segment of our society. We are addicted to normalcy; even if it means we must lop off significant portions of ourselves, we must conform.
There's no need to accept the validity of all these arguments; the validity of any one is sufficient reason to wipe away all the laws against consensual activities.
In this book, we will explore each of the consensual crimes, asking not, "Is it good?" but, "Is it worth throwing someone in jail for?" We'll explore the prejudice about consensual crimes—the prejudices we have been conditioned to believe. You'll find that the number of lies within lies within lies is amazing.
Responsibility is the price of freedom. So is tolerance.
In the time it took you to read this overview, 342 persons were arrested for consensual crimes in the United States.