All Commentary
Sunday, June 27, 2010

The Pernicious Nature of Victimless-Crime Laws

Victimless Crimes Invite Graft, Corruption, and the Suspension of Civil Liberties

Laws creating victimless crimes are particularly pernicious laws. Their associated evils are essential rather than accidental; that is, their destructive properties stem from their very nature as victimless. It will soon become clear why federal judges commonly write and speak of “the drug exception” to search-and-seizure (Fourth Amendment) jurisprudence, why double agents lead double lives as members in good standing of both the law-enforcement community and drug underworld, why vice squads are notorious for taking bribes and for crossing the thin line between observer and participant, and why the whole enterprise of enforcing laws against this class of crimes smacks of smarmy agents doing questionable acts in the middle of the night at poorly lit harbors of criminal activity where most decent folks will not ever venture.

Let me begin with a short account of a crime that had a victim. In the height of the Dinkins-era crime wave in New York City,* I arose early one morning and decided after saying my prayers to have a breakfast of bagels. Since the bagel shop was only about five blocks from where I lived, I put on my coat, walked out the door, and started my walk. At the corner, two youths appeared as if out of nowhere; one held the blade of a knife palpably to my throat and demanded my money — which, not being foolish, I quickly surrendered. The incident left me angry and humiliated and after regaining my composure, I immediately hailed a police car. The officers and I patrolled the area looking in vain for the youths who had mugged me; then they took me to the station house to view mug shots.

I realized then why eyewitness testimony is so often flawed: While I was sure I could have identified the youths on the street had we passed them in the car, the task of identifying them from the mug shots was hopeless. I just could not do it with any degree of confidence. I left the police precinct house dejected, dejected because the only hope for the criminals’ capture had been that ride in the patrol car. The victim’s early identification — when what was stolen was cash and when the weapon was an ordinary knife — was the last, best chance of the police’s making the arrest. I was both their first recourse and their last hope. I went away from the station house knowing that even if they were to be caught later for another offense, they would never be charged for the indignity and humiliation they had visited upon me.

This is, in essence, how it is with most crimes: The victim’s ability to identify the criminal by sight, sound, or even smell; the victim’s wounds and marks, if any; and traces of fibers and dropped materials in the victim’s surroundings provide the best shot at catching the criminal. In other words, the victim’s active help is critical to an arrest and a successful prosecution. (In the case of murder, the victim has stand-ins—his family and friends.) The victim also provides the push for an arrest and successful prosecution. Rarely are crimes solved without the cooperation and impetus of the victim, although there are, of course, exceptions.

Therein lies the problem with victimless crimes. Since there is no complainant, no one whom the outlawed behavior has violated, how is it to be reported and detected? How are misfeasors to be brought before the court, and how is the prosecution to be carried out? What impetus is there for a prosecution?

The answer historically has been twofold. First, the rules for the police have been relaxed—the drug exception to search-and-seizure procedures. Second, the government has stepped in in the place of the victim, acting as a willing participant in the crime only to turn on the other party later. These are what are called “sting” operations, and mostly they are used for victimless crimes. But the officers participating in the sting are not true victims; they have not been harmed. Indeed, they collect a paycheck.

The problems this leads to are legion. These officers have dual loyalties for the sake of which they may play the government for the fool as often as those involved in the drug trade. This begins with the practical necessity of alliances in both worlds and ends with the very real allegiances to and in both worlds. Officers may take bribes; they may participate in crimes—justifying it to themselves and sometimes their superiors by the necessity of establishing a rapport with the criminals they are after or with their organizations. Sometimes they even participate in real (non-victimless) crimes or watch silently as their confederates knock off each other or innocent others. They justify this participation or silence to themselves or their superiors by the need to stay quiet till they can identify and arrest “the big guys” — even though the non-victimless crimes are committed on the street by the little guys. Case building of this sort takes a lot of time and many officers because the moment the officers blow their cover and make a series of arrests, they lose the ability to track and detect future (victimless) crimes, to make future arrests, and to prosecute further cases. So the emphasis is always on casting a wide and deep net that will ensnare as many important perpetrators as possible. The many sordid things that happen while casting this net are among the costs of going after victimless crimes.

Victimless crimes, in summary, invite graft and corruption of all sorts and the suspension of civil liberties, because these are the only effective ways of combating this species of “crime.”