Majorities, Minorities, and Morals - Penal Policy and Consensual Behavior

• NCJ Number: 89277
• Journal: Northern Kentucky Law Review Volume: 9 Issue: 1 Dated: (1982) Pages: 1-23
• Author(s): F A Allen
• Date Published: 1982
• Length: 22 pages
• Sale Source: National Institute of Justice/
• Language: English
• Country: United States of America
• Note: The Harold J. Siebenthaler Lecture, Salmon P Chase College of Law, Northern Kentucky University, February 19, 1982.

Annotation

This lecture discusses the range of problems arising from sumptuary criminal regulations enacted to vindicate certain moral attitudes that are typically greatly disputed in contemporary society.

Abstract

The sumptuary legislation discussed proscribes such behavior as the consumption of narcotic drugs and liquor, gambling, prostitution, obscenity, and other forms of sexual expression. In contrast to common-law crimes, which are consensually viewed as requiring state intervention to constrain and punish such behavior, sumptuary offenses are generally viewed as worthy of state intervention by a vocal and politically active minority which wishes to regulate and punish the perceived immoralities of a sizable number and even the majority of a citizenry who do not view such behavior as warranting the intrusions and the costs of formal criminal justice action. Typically, such laws are difficult to enforce because the so-called victim is generally a willing participant in a consensual transaction, making it necessary for law enforcement to engage in time-consuming, costly investigations that threaten privacy rights. Difficult and costly enforcement combined with extensive behavior that violates the law make it unlikely that such laws will significantly reduce the proscribed behavior, but advocates of such laws appear less concerned about the effects achieved than the fact of the law being symbolic of their political power to set values binding on other citizens. Groups advocating the imposition of a passionately-held moral principle on society through the state generally have a single interest that blinds them to the complexity of human behavior and the constructive perceptions of their opponents. Consequently, they tend to be factional and destructive of the commitment to pluralism essential in a society that would guard the freedoms of all its members. Seventy-five footnotes are provided.