NCJ Number
62073
Journal
ETHICS Volume: 87 Dated: (1977) Pages: 302-318
Date Published
1977
Length
17 pages
Annotation
THE ARGUMENTS FOR DECRIMINALIZATION OF VICTIMLESS CRIMES ARE EVALUATED, EXPOSING THEIR DEFICIENCIES AND RECOMMENDING ALTERNATIVES.
Abstract
THOSE WHO ADVOCATE THE DECRIMINALIZATION OF VICTIMLESS CRIMES USUALLY HAVE A SPECIFIC SET OF CRIMES IN MIND (GAMBLING, PROSTITUTION, NARCOTICS USE, PORNOGRAPHY, ETC.) AND GENERAL CHARACTERISTICS OF THE BEHAVIOR ARE CITED AS MAKING IT INAPPROPRIATE FOR CRIMINALIZATION. THOSE WHO ARGUE FOR DECRIMINALIZATION OF SPECIFIC ACTIVITIES USING CERTAIN CRITERIA MUST ALSO CONSISTENTLY APPLY THESE SAME CRITERIA TO PREVENT THE FUTURE CRIMINALIZATION OF ANY BEHAVIOR THAT FITS THE CRITERIA. THIS CALLS FOR THE DEVELOPMENT OF REASONED CRITERIA FOR THE NONCRIMINALIZATION OF VICTIMLESS ACTIVITIES (NVA). EACH CRITERION USUALLY EMPLOYED FOR THE DECRIMINALIZATION OF VICTIMLESS CRIMES, IF APPLIED TO ALL CONCEIVABLE CIRCUMSTANCES WOULD GREATLY LIMIT THE APPLICATION OF THE LAW IN PREVENTING CRIME AND CONSTRUCTING A POSITIVE SOCIAL ENVIRONMENT. THE MOST BASIC DIFFICULTY WITH NVA IS THAT CRIMES ARE PROBLEMS ONLY OF INTERPERSONAL HARM, WITHOUT CONSIDERING THEIR EFFECTS ON SOCIETY. ADVOCATES OF NVA ARE WRONG TO ASSUME THAT THE PROPER USE OF THE CRIMINAL LAW REQUIRES THAT THERE BE A VICTIM. FOR INSTANCE, DRIVING WHILE INTOXICATED IS A VICTIMLESS ACTIVITY WHICH IS JUSTIFIABLY PROHIBITED BECAUSE IT INCREASES THE PROBABILITY OF VICTIMIZATION. THE ISSUE THEN BECOMES ONE OF DETERMINING WHAT IS HIGH RISK VICTIMLESS BEHAVIOR AND TO WHAT EXTENT WILL THE LAW ATTEMPT TO REDUCE CRIME BY PROSCRIBING CONDITIONS OR ACTIVITY KNOWN TO BE RELATED TO SERIOUSLY HARMFUL INCIDENTS, REALIZING THAT SUCH EFFORTS TEND TO LIMIT CITIZENS' FREEDOM. ALSO, WHEN PEOPLE CONSENT TO INVOLVEMENT IN ACTS WITHOUT REALIZING THE POTENTIAL HARM, PATERNALISTIC LAWS MAY PROVE DESIRABLE. THUS, DECRIMINALIZATION OF VICTIMLESS CRIMES MUST BE ACCOMPANIED BY COMPLEX DEBATES ABOUT CRITERIA FOR NVA. THE PROSPECT FOR CONSENSUS ON A UNIFORM SET OF CRITERIA IS HIGHLY UNLIKELY. FOOTNOTES ARE INCLUDED. (RCB)