Winning or Losing the Lottery

Barack Obama, the Democratic nominee for the U.S. Senate seat being vacated by Peter Fitzgerald (R-IL), has frankly discussed using marijuana and cocaine during his youth. He credited an attitude adjustment with his choice to take a new direction.

I often wonder why no reporter asks the obvious question. "Mr. Obama, you obviously lucked out and didn't get caught while you were getting stoned, while other young people who were not so lucky got a criminal record for doing what you did. Do you support the notion of law as lottery, or is law absolute and universal?

"If you commit murder or robbery and don't get caught, shouldn't you be punished no matter how long it takes to identify you? If politicians have passed laws against using pot or coke, and those laws are moral, shouldn't you be jailed now, today, because you weren't punished back when you committed the crimes?

"If you should not be jailed now, then why should anyone ever be jailed simply for doing today (and getting caught) what you did back then? Would jail time and a criminal record have enhanced your life, helped you get into Harvard law school, and improved your chances of being elected to the Senate?"

Which kids could have gone on to great things (no, I don't include public office in this category) but for the fact that last night the cop noticed the bag under the back seat and pulled out the handcuffs?

Most readers of LRC recognize the obvious: The law is now a complete lottery where some people have better odds than others, but all face the same general risk of disobeying the 12th Commandment by getting caught. [The 11th Commandment is, of course, Keep a Low Profile, and if observed religiously, usually allows the observation of the 12th, too.]

Was it smoking pot? Drinking beer prior to that officially blessed 21st birthday? Exploring the biological sciences with a willing sweet young thing who's not quite at that "consenting" age? Offering legal advice, medical care, shop services, disposal services, landscaping services, mail service, hair braiding, coloring, cutting, or styling services, taxi services, commercial trucking services, or just about anything else without first acquiring an official license?

Was it attaching a particular cosmetic part like a flash hider to a certain kind of rifle? [Sorry, I forgot, that was an immoral act but now is a moral act…it's all in the date. Or perhaps I'm confused, as it never seemed immoral to me, and was only illegal, evidently a MAJOR distinction.] Was it accidentally spilling the wrong material into a waterway or filling dirt into the wrong low-lying area?

Was it selling a legal weed to a minor? Forgetting to eradicate ditch weed on the back forty? Saying anything other than "I don't recall" to any government employee? Did you slip a Glock into your pocket because you were going to the ATM after dark for some cash?

We know that if everyone who smoked pot or quaffed a beer before 21 actually did time in the hoosegow, we'd need a whole lot more prisons. Heck, there'd be more prisons than there are bank branches and there are more of them now than gas stations. [In fact, the guards would probably have to be ex-prisoners, since there simply aren't that many folks who didn't take a hit or a pre-21 shot during their irresponsible years.] This same principle will clearly apply to downloaders as well.

Evolving technology virtually begs Peer-to-Peer network users to innovate, so content owners like the big movie studios will probably have the same success as the drug warriors. But how many more young people will lose the lottery? At the rate we're going, what with Martha Stewart going to jail for lying to the Feds about something that wasn't itself criminal, the stigma of being an ex-con is in danger of fading out completely. How can you shun someone who, in a tiny twist of fate, could just as easily have been you?

Perhaps life will be less uncertain when lawmakers (and their gutless, herding-animal constituents…i.e. our neighbors) have the cojones to face that question. Someday, perhaps our neighbors will see that the people they threaten with a life-ruining criminal record is their own next generation, their kids, doing exactly what mom and dad did when they were young – playing fast and loose with the rules. Until then, it seems that as science conquers the arbitrary dangers of nature, humans will replace nature's horrors like polio and periodic starvation with man-made alternatives. As we know, the institution best constituted to breathe life into these lunatic fantasies is government.

Thanks guys. Thanks a lot.

In the meantime, the best our community (the LRC community, that is) can do is to teach our kids the difference between nature's law (morality) and statehouse law (the lottery). It's wrong to murder, or rob, or cheat. It's just hazardous to do any of the literally millions of other things that are technically now crimes. Just remember, son, to play the odds.

October 1, 2004

David Calderwood [send him mail] a businessman, artist, and author of the novel Revolutionary Language, selected January 2000 Freedom Book of the Month at