Just as every husband needs a wife, every child needs a parent, and every teacher needs a pupil, so every crime needs a victim. Not a potential victim or possible victim or a supposed victim, but an actual victim.
There are a myriad of federal, state, and local laws on an incalculable number of subjects. The result of this is that the United States — the land of the free — has one of the highest per-capita prison populations in the world. With less than 5 percent of the world’s population, the United States has almost a quarter of the world’s prisoners.
The volume and scope of federal laws are especially distressing because very few of them are authorized by the Constitution. Congress and the federal agencies it has created have federalized a host of ordinary street crimes already covered by state criminal codes. Things like arson, carjacking, and gun possession by felons. The federal criminal code has over 4,000 separate offenses, including such violent crimes as transporting birds across state lines to engage in fights and interstate transport of unlicensed dentures.
Sometimes the federal government also pressures the states to enact laws. Thus, the National Minimum Drinking Age Act of 1984 required states to raise their drinking ages to twenty-one or lose 10 percent of their federal highway funds.
The most senseless category of what governments — federal, state, or local — have labeled crimes is victimless crimes. These are crimes like not wearing a seatbelt, not wearing a motorcycle or bicycle helmet, texting while driving, doing business on Sunday, charging an excessive interest rate, price gouging, and that great crime against humanity — ticket scalping.
New Hampshire is the only state that has no adult seat belt law. This makes me a law breaker in forty-nine states. Many of the same people who say that what you do or don’t do in your own car is your business make an exception when it comes to seat belt laws. Is it a good idea to wear a seatbelt? Certainly. Is it a good idea for kids to be securely fastened in? Most definitely. But the idea that we need the state to protect us by forcing us to wear seatbelts is ludicrous. Whatever happened to the ideas of individual responsibility and parental responsibility? This is something that could easily be handled on the free market. Insurance companies could charge higher premiums to those drivers who forego wearing a seatbelt. Drivers should want to ensure that everyone in their car arrives at their destination safely, but they don’t need the threat of a ticket to do so. And is there any doubt that governments are more interested in revenue than safety?
Only three states (Illinois, Iowa and New Hampshire) have absolutely no motorcycle helmet requirement. The other states require helmets for everyone or just for adults. Twenty-one states require bicyclists below a certain age to wear helmets. New Hampshire even requires a bicycle helmet for riders under sixteen even though no one who rides an obviously more dangerous motorcycle is required to wear one. Should advocates of liberty be in favor of state governments requiring riders of motorcycles and bicycles to wear helmets? Not if they want to be consistent. Is it foolish to ride a motorcycle without a helmet? I think so. But I think it’s foolish to ride a motorcycle without a full suit of armor. The issue of motorcycle helmets is also something that could easily be handled on the free market in the form of higher insurance premiums to those motorcycle riders who forego wearing a helmet. Families and friends should be the ones persuading motorcycle riders to wear helmets — not the state.
Wisconsin just became the twenty-fifth state to ban texting while driving. The problem with these laws, in addition to the obvious — that they grossly infringe upon personal liberty and criminalize an otherwise harmless activity because it might cause a driver to be distracted and perhaps have an accident — is their selectiveness. What about eating and drinking while driving? What about women applying makeup while driving? What about men shaving with an electric razor while driving? What about people reading a map while driving? What about people glancing too long at billboards or blinking while driving? Drivers should be held accountable for actual accidents, not potential ones.
Seat belt, helmet, and texting laws are predicated on the idea that we need the state to protect us from doing something stupid. But it is families and friends that should be the ones persuading people to buckle up, wear a helmet, or turn off their cell phone, not the state. But they won’t do it, some say, and therefore the state has to do it. But this presupposes that the state cares more about an individual than does his family and friends — a very dubious proposition.
Too many Americans are willing to surrender their liberty without a whimper at the slightest whisper by the state of “safety” or “children.”
Blue laws — laws that forbid the sale of all or certain goods at most stores on Sunday — are some of the most laughable victimless crime legislation ever concocted. In some states it is illegal to not just purchase alcohol on Sunday, but to buy a car from a dealer. And it’s not just Sunday. In Massachusetts, all stores (except convenience stores and gas stations) have to remain closed on Thanksgiving and Christmas Day. But why should those who attend church on Sunday (as I do, and as many of you do) care if those who don’t attend church want to do their shopping? Church goers who have such a problem with the repeal of a blue law that prevents beer from being sold on Sunday don’t seem to mind restaurants being open so they have somewhere to eat after church.
Some victimless crimes relate to economics. This would be things like usury laws, price gouging, and ticket scalping.
Ethically, usury is an exorbitant interest rate. Legally, usury is an illegal interest rate. But in what is now viewed as its archaic or obsolete sense, usury is simply the price of interest charged on a loan for the lack of use of the money and the risk of loss. So, based on this artificial distinction between usury and interest, we have the victimless crime of usury in all fifty states. Usurers — that is, moneylenders, have been despised throughout history. In Dante’s The Divine Comedy, usurers are in the seventh circle of hell along with blasphemers and sodomites. But as the late economist Murray Rothbard pointed out, moneylending is a business in the market like any other business: “If the number of usurers multiplies, the price of money or interest will be driven down by the competition. So that if one doesn’t like high interest rates, the more usurers the better!” Although it might be immoral to charge above a certain rate of interest in some circumstances, it should certainly not be illegal. How could anyone possibly calculate what the maximum rate of interest should be and then apply that to every situation? And what should be the basis of the rate? Should it be the prime rate, the federal funds rate, the discount rate, or the LIBOR rate? The common-sense approach is simple: If you don’t want to borrow a sum of money at what you believe is a usurious rate of interest, then don’t borrow the money. But, some will say, we need the state to regulate interest rates to protect consumers. But how is preventing a willing lender and a willing borrower from doing business helping consumers?
Price-gouging laws are predicated on the fallacy that there is a just price for every good and service, and even more so during bad weather or some government-declared state of emergency. The U.S. Department of Energy even maintains a “Gas Price Watch Reporting Form” where people who know nothing about supply and demand, refinery capacity, gasoline futures, world surplus production capacity, and the price of a barrel of crude oil can report price gouging by gas stations. These laws are very similar to usury laws. In some circumstances, it might be immoral to charge above a particular price, but it should certainly not be illegal. There is no such thing as a just price. One cannot support price-gouging laws without ascribing omniscience to the state. How else could the state determine what the correct price should be? From an economic standpoint, we know that what is called price gouging is simply nothing more than charging what the market will bear. Price-gouging laws violate the property rights of resource owners, they hinder the price system’s signaling ability, they contribute to the misallocation of resources, and they cause shortages. Once again, the common-sense approach is the simplest: If you don’t like what you think is the inflated price of an item, then don’t buy it.
The crime of ticket scalping has got to be one of the most ridiculous examples of a victimless act ever labeled as a crime. What precept of any ethical system would frown upon a willing seller and a willing buyer exchanging tickets for cash, as long as it was not violating the property rights of the owner of the ground where they made their exchange? Ticket scalpers perform a valuable service and should be applauded not condemned.
The nanny state is at its prime when it comes to monitoring illicit substances and consensual behavior that some people find objectionable, e.g., gambling, prostitution, and drug use. Thus, the most widely accepted victimless crimes are those that involve what is considered to be immoral activity. Here is where even believers in a free society acquiesce to the state. And religious people in particular look to the state to enforce their morality when it comes to these issues.
The problem with the moral crusades of the nanny state against gambling, prostitution, and drug use is that they fail to distinguish between vices and crimes. As the 19th-century classical-liberal political philosopher Lysander Spooner explained it:
Vices are those acts by which a man harms himself or his property. Crimes are those acts by which one man harms the person or property of another. Vices are simply the errors which a man makes in his search after his own happiness. Unlike crimes, they imply no malice toward others, and no interference with their persons or property.
Unless this clear distinction between vices and crimes be made and recognized by the laws, there can be on earth no such thing as individual right, liberty, or property — no such things as the right of one man to the control of his own person and property, and the corresponding and coequal rights of another man to the control of his own person and property.
To be a crime, adds Spooner, there must exist criminal intent to invade the person or property of another. But vices are not engaged in with criminal intent. A man practices a vice “for his own happiness solely, and not from any malice toward others.” This reminds me of H. L. Mencken’s famous definition of Puritanism: “The haunting fear that someone, somewhere, may be happy.”
According to John Stossel: “Americans bet a hundred million dollars every day, and that’s just at legal places like Las Vegas and Indian reservations. Much more is bet illegally.” No one should be deceived into thinking that the state is really concerned about the immorality of gambling. It is only illegal gambling — gambling in which the government does not get a cut of the action — that the government is concerned about. State lotteries, which have odds worse than any casino, are marketed to the poor with tax dollars. If an individual is genuinely concerned about the negatives associated with gambling, then the answer is personal persuasion, not government prosecution. Is it anyone’s business if people want to throw their money away?
Prostitution isn’t just the world’s oldest profession, it’s also the world’s oldest victimless crime. But if adultery or fornication should not be crimes, then why should prostitution be one? They are all consensual acts between two or more parties. Forced prostitution, of course, is a crime because it has a victim. And prostitutes who trespass by plying their trade without permission on private property are themselves committing a crime. But sex between two consenting adults without dinner and a movie should not be the business of government or anyone else. Again, if an individual is genuinely concerned about what he sees as the plight of prostitutes, then he should resort to persuasion or provide an employment alternative instead of looking to the government to outlaw immoral activity.
The state’s war on drugs, like its war on poverty and its war on terrorism, is a failure, unless you consider turning hundreds of thousands of otherwise law-abiding people into criminals a success. Out of the 847,863 arrests for marijuana in 2008, 754,224 were for possession alone. According to the Sentencing Project, over half of the federal prison population is the result of drug charges. Twenty percent of the state prison population and 25 percent of the local jail population is due to drug charges. There are currently about half a million drug offenders in prison or jail, an increase of 1,100 percent since 1980. Not only has the unconstitutional drug war had virtually no impact on the use or availability of most drugs in the United States, it has destroyed civil liberties and financial privacy. The costs of drug prohibition far outweigh any possible benefits. Proof that people are not thinking when it comes to drugs is the subject of alcohol. There is no reason why getting high on drugs in the privacy of one’s home should be treated differently from getting drunk on alcohol in the privacy of one’s home. And not only is it simply not the purpose of government to protect people from abusing drugs, government intervention begets more government intervention. As the late economist Ludwig von Mises explained:
Opium and morphine are certainly dangerous, habit-forming drugs. But once the principle is admitted that it is the duty of government to protect the individual against his own foolishness, no serious objections can be advanced against further encroachments. . . . And why limit the government’s benevolent providence to the protection of the individual’s body only?
Is not the harm a man can inflict on his mind and soul even more disastrous than any bodily evils? Why not prevent him from reading bad books and seeing bad plays, from looking at bad paintings and statues and from hearing bad music? The mischief done by bad ideologies, surely, is much more pernicious, both for the individual and for the whole society, than that done by narcotic drugs.
There should be no DEA agents, no undercover sting operations, and no jail time for growing a plant.
Every crime needs a victim. Not wearing a seatbelt, not wearing helmet, texting while driving, doing business on Sunday, usurious lending practices, price gouging, ticket scalping, gambling without the state’s permission, using the services of a prostitute, abusing drugs, and a host of other “crimes” that I have not mentioned are not crimes at all. They may be immoral, they may be vices, they may be bad habits, they may be dangerous, they may be foolish, they may be addictive, they may harm those who willingly participant in them, they may have no redeeming value whatsoever, but as long as those who engage in them are not harming or violating the personal or property rights of non-participants, they should not be crimes.
There are two reasons that no one should look to the government as a nanny to enforce morality and micro-manage the behavior of its citizens.
First, the purpose of government is supposed to be to protect life, liberty, and property from violence or fraud. It is simply not the business of government to prohibit the advertising, sale, and use of what it deems to be harmful substances. Likewise, the government should not be concerned with keeping people from vice or bad habits and regulating or prohibiting activities that take place between consenting adults. A government with the power to outlaw harmful substances and immoral practices is a government with the power to ban any substance and any practice. A nanny state is a perversion of government.
Second, all governments — the U.S. government included — eventually degenerate into the greatest violators of the life, liberty, and property they are supposed to protect. As former Foundation for Economic Education president Richard Ebeling has said:
There has been no greater threat to life, liberty, and property throughout the ages than government. Even the most violent and brutal private individuals have been able to inflict only a mere fraction of the harm and destruction that have been caused by the use of power by political authorities.
And as C. S. Lewis remarked:
Of all tyrannies a tyranny sincerely exercised for the good of its victims may be the most oppressive. It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience.
Religious people in particular make a grave mistake when they look to the state to enforce their morality. The actions of the state are typically the greatest examples of immoral behavior that one could possibly think of. Yet, many religious people not only look to the state to enforce a moral code, they defend, support, and make excuses for the state, its politicians, its legislation, and its wars. Some victimless crimes may indeed be sins, but it is not the purpose of religion to use force or the threat of force to keep people from sinning. Rebuke, persuasion, and instruction are certainly more biblical methods than using the power of the state to change or restrict people’s behavior. As Mises again explains:
He who wants to reform his countrymen must take recourse to persuasion. This alone is the democratic way of bringing about changes. If a man fails in his endeavors to convince other people of the soundness of his ideas, he should blame his own disabilities. He should not ask for a law, that is, for compulsion and coercion by the police.
Many people support legislation against victimless crimes only as long as it stops short of their particular vice. But vice or no vice, no advocate of liberty and a free society should seek legislation that would criminalize any victimless crimes. Liberty means liberty for everyone, even those who use substances and engage in practices that others in society don’t use or find offensive. Our liberty is compromised and society is made worse off when we deprive a select few of liberty who are not themselves violating anyone’s liberty. In closing, I refer first to Mises and then to John Stuart Mill:
A free man must be able to endure it when his fellow men act and live otherwise than he considers proper. He must free himself from the habit, just as soon as something does not please him, of calling for the police.
The only freedom which deserves the name is that of pursuing our own good in our own way, so long as we do not attempt to deprive others of theirs, or impede their efforts to obtain it. Each is the proper guardian of his own health, whether bodily, or mental and spiritual. Mankind are greater gainers by suffering each other to live as seems good to themselves, than by compelling each to live as seems good to the rest.
Victimless crime legislation requires a nanny state to enforce it. A nanny state must of necessity be a police state and therefore hostile to liberty. Real crimes that violate personal or property rights should be enforced to the fullest extent of the law; victimless crimes should be opposed root and branch.
Reprinted from Campaign for Liberty.