Legal Law

Prohibiting harmless consensual or self-centered acts by adults is bad law and policy

In 2019, an amazing (but unintended) social experiment took place in one of the largest cities in this country that should deserve more attention. It started with the discharge of New York police officer Daniel Pantaleo. If you remember, after an internal hearing, Pantaleo was fired for the murder of Eric Garner by suffocating him. In response to the dismissal, the head of the police union urged officers to get involved in what can only be described as slowing down work. The likely intent of the slowdown was to show that if the police did not aggressively patrol the streets, crime would increase and life would become unbearable. You often hear this “thin blue line” rhetoric from police apologists who portray police officers as a slim barrier that prevents society from falling into absolute chaos.

But here’s the notable thing: although police ceased operations in 2019 and arrests decreased, crime, including violent crime, also fell. More notably, this is not the first time something like this has happened. As Scott Shackford explained in Reason:

As early as December 2014, after two officers were killed on duty – and after citizens revolted again after a grand jury refused to indict Pantaleo – NYPD officials slowed arrests. The enforcement of petty crime almost came to a standstill.

A study years later that analyzed this slowdown in 2014-2015 found it to be a serious crime [complaints] actually landed in the Big Apple during this period[.]

These findings should turn many of the dogmas associated with the “thin blue line” narrative on their head. It should also question the extent to which law enforcement is involved in the everyday life of Americans. Despite the abundance of evidence that overcriminalization is unnecessary and destructive, local, state and federal governments simply cannot let go.

For example, while staying in New York City, Manhattan District Attorney Cy Vance recently announced that his office would no longer prosecute sex workers and would continue to prosecute their clients. This strategy is often referred to as the “Nordic model,” and its proponents argue that it is the only sensible way to meet the demand that encourages prostitution without criminalizing sex workers who are mistakenly treated as criminals. But if it is wrong to treat sex workers as criminals, why is it still desirable to criminalize their clients?

Of course, no serious person is arguing that underage sex work should be allowed or that forcing people to do sex work should be legalized. But I have not seen anyone cite a legitimate reason why two adults cannot agree to engage in consensual sexual activity for money that does no harm. Or what benefit society derives from the criminalization of sexual acts in such commercial contexts. In the meantime, legalizing sex work brings undeniable benefits as it removes unregulated black markets and allows for greater transparency and regulation of damage, if it exists.

But even if the act is personally harmful but does not harm anyone (also known as a self-centered act), there is little need for government intervention. Indeed, government intervention can do more harm than prohibiting self-centered action. But try to tell Joe Biden this. Last week, President Biden announced that his government was planning to propose a ban on menthol cigarettes. The move is intended to correct the injustice of decades of aggressive marketing of menthol cigarettes to black people.

While any reasonable person can agree that aggressively marketing a harmful product constitutes moral objection, criminalizing the product, especially a drug, carries serious dangers. So think about it, the reason Pantaleo came into contact with Garner was because of the sale of loose cigarettes. Do we really want to create more reasons for such confrontations? Biden does, and it’s a tragedy.

Tyler Broker’s work has been published in the Gonzaga Law Review, Albany Law Review, and the University of Memphis Law Review. Feel free email him or follow him further Twitter to discuss his column.

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