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The Tragedy of Victimless Crimes in the United States

Time for Change's Journal

The Tragedy of Victimless Crimes in the United States

Posted by Time for change in General Discussion

Tue Jun 09th 2009, 01:15 AM

Whenever the offence inspires less horror than the punishment, the rigor of penal law is obliged to give way to the common feelings of mankind – Edward Gibbon from “The Decline and Fall of the Roman Empire”

Why is it that the country that likes to call itself “The Land of the Free” has the highest incarceration rate in the world? Is that Orwellian or what?

International statistics from 2006 show that the United States has an incarceration rate of 738 per 100,000 population, the highest rate of incarceration in the world. Approximately 2.3 million persons are incarcerated in the United States as of October 2006, which is a far higher number, by almost a million, than any other nation in the world, accounting for about one quarter of the world’s incarcerated population. [graphic omitted]

Put another way, our incarceration rate is more than five times that of Europe, Canada, Australia, or Japan.

A country with such high incarceration rates ought to be ashamed of itself. Instead, our politicians spew out gratuitous flattery to “the American people” without ever mentioning our astronomical incarceration rate. If the American people are so wonderful, as these politicians imply, then our highly disproportionate incarceration rate must be caused by tyrannical government policies. Our elected leaders ought to give that some thought, and do something about it, rather than spend so much time spewing out mindless platitudes.

Victimless Crimes

A victimless crime is a crime that has no victim, with the possible exception of the perpetrator of the “crime”. Granted there can be honest disagreement over what constitutes a victimless crime. In the United States, some of the most clear cut cases of victimless crimes are recreational, religious, and psychologically therapeutic drug use, gambling, homosexuality, transvestism, suicide and assisted suicide.

It has been estimated that in the United States today, there are approximately 750 thousand individuals incarcerated for victimless crimes, as well as 3 million on parole or probation. Approximately 4 million are arrested each year for victimless crimes.

The incarceration rate for victimless crimes comes to only about one third of the total incarceration rate in our country. But the toxic effects are not confined to them. The hundreds of thousands of individuals incarcerated for victimless crimes have helped to fuel a private, for-profit prison industry, which has successfully lobbied for more frequent and longer prison sentences for all crimes.

Drug possession

Of the total U.S. prison population in 2004, more than one quarter, 530,000, were imprisoned for drug offenses, and almost a tenth of these were for marijuana only. Many of those were for mere possession, rather than manufacturing or selling. For example, of 700,000 marijuana arrests in 1997, 87% were for mere possession, and 41% of those incarcerated for a marijuana offense are incarcerated for possession only. Arrests for marijuana possession in 2004 were more numerous than arrests for all violent crimes combined. Our extremely high incarceration rate is at least partially explained by the fact that most non-violent first time offenders guilty of drug possession today in the United States get a mandatory minimum sentence of 5 years with no parole, or 10 years with no parole if a large quantity of drugs is involved.

Here is one example of how government intrudes on the lives of innocent people:

US Army veteran Steven Tuck was lying in a Canadian hospital bed. He fled to Canada after his plants were raided in California by DEA agents. He smoked marijuana to alleviate chronic pain from a 1987 parachuting accident.

Canadian authorities arrested him on his gurney, drove him to the border, and delivered him to US agents, and he then spent five days in jail – all with a catheter still attached to his penis. He was offered no medical treatment during his stay in the hospital, and his lawyer, Doug Hiatt, said, “This is totally inhumane. He’s been tortured for days for no reason.”

Possession of kiddie porn

Clearly it is proper for the state to prosecute child abuse, including the use of children in pornography. However, criminalizing the mere possession of computerized images of child pornography, when there is no evidence that they were obtained through purchase or any involvement in the kiddie porn industry, is highly susceptible to abuse.

I know someone who submitted a computer to a computer repair shop, to check it for damages following a fire. Someone at the company called the police to report kiddie porn on his computer after it was in the company’s possession for seven months. I can’t describe what hell my friend went through. Before I was aware of that episode I had submitted my computer to the same company, and when it was returned to me it contained kiddie porn. I was fortunate that I wasn’t arrested for that, as my friend was.

Bob Chatelle, commenting upon the proliferation of kiddie porn possession laws in our country, notes that “There'd never been that much child pornography to begin with, since there aren't many pedophiles around to create demand.” Able to garner only three convictions in 1983, Chatelle explains how the feds attempted to improve their record:

New tactics were needed in the government's war against filth – such as sting operations. Federal agents targeted law-abiding citizens and tried their damnedest to induce them to buy child pornography… They identified potential victims in a number of ways, such as by seizing the records of adult book stores and publishing houses to find out who purchased legal materials… The prospective victims were sent mailings… barraged with offers to buy all sorts of books and magazines without being warned that any of the material might be illegal. Whenever one of these unfortunate dupes took the bait, of course, they were promptly arrested. Their homes were searched; their property was seized; their reputations were destroyed. They lost their careers, family, and friends. At least four committed suicide…

Chatelle concludes his article by explaining how unnecessary these laws are:

The sad thing is that child-pornography laws are not only unconstitutional, they're also totally unnecessary. There is no First Amendment right to commit a crime. A crime does not cease to be a crime just because someone photographs it. Child abuse is a crime and should be prosecuted. Using someone's image for commercial purposes without their permission (which children cannot legally give) is a crime and should be prosecuted… But the people who pass laws against child pornography have no interest in preventing or punishing child abuse or any other crime. They are interested solely in advancing their own power and their own careers.

Practicing Islam

Some might argue that we have no law against practicing Islam in our country. But during the Bush administration we arrested and incarcerated Muslims by the thousands or tens of thousands, while allowing them no way to contest their arrests. Therefore, I think it’s fair to say that in many cases the distinction between the legality and illegality of practicing Islam is lost for all practical purposes.

Stephen Grey, Amnesty International’s Award-Winning Journalist for Excellence in Human Rights Reporting, in his book “Ghost Plane”, meticulously documents the illegal and horrendous system of torture and other human rights abuses that George Bush perpetrated upon the world as part of his so-called “War on Terror”. Here are excerpts of the U.S. torture program from the introduction to Grey’s book:

The modern world of prisons run by the United States and its allies in the war on terror is far less extensive (than the Soviet gulags under Stalin). Its inmates number thousands not millions. And yet there are eerie parallels between what the Soviet Union created and what we, in the West, are now constructing… How much more than surreal, more apart from normal existence, was the network of prisons run after 9/11 by the United States and its allies? How much easier too was the denial and the double-think when those who disappeared into the modern gulag were, being mainly swarthy skinned Arabs with a different culture, so different from most of us in the West? How much more reassuring were the words from our politicians that all was well?

Reasons why we should abolish the criminalization of victimless acts

The direct destruction of lives

The clearest and most obvious reason for taking victimless crimes off the books is the hundreds of thousands of lives they destroy directly. Glen Greenwald puts it succinctly:

For us to collectively decide that the consensual, adult use or sale of intoxicants will be criminalized, means we are agreeing that hundreds of thousands of our fellow Americans will experience life-destroying calamity. These POWs will be ripped from their communities -- and frequently from their children -- for years, decades and for life, pursuant to mandatory sentencing schemes as Draconian as those in any dictatorship…

Instead of being with their families, these citizens will be confined among a population teeming with violent predators, under harsh and terrifying conditions. Conditions in which, especially for the disabled, their health often cannot be maintained…

Then there’s the rape and assault of these non-violent “criminals”. Tom Cahill, President of Stop Prisoner Rape, explains:

I credit the war on drugs with the tremendous increase in prisoner rape. Most prison rape victims are in for minor nonviolent offenses. The victim profile is a young adult… confined for the first time for a minor victimless crime such as possession of a little too much marijuana – and too poor to buy his freedom. . . .

These men and boys who are raped in prison will usually return to the community far more violent and antisocial than before they were raped. Some of them will perpetuate the vicious cycle by becoming rapists themselves…

Adding to the damage done to individuals is the damage that these laws do to families.
Perhaps the major reason for single parent households in our country today is the huge number of imprisoned men. This perpetuates a cycle of crime and incarceration over the generations.

Wrecking the lives of the people of other countries

The United States has pressured many countries to collaborate with it in its “War on drugs”, particularly with respect to preventing the production and export of drugs from those countries. This often involves aerial spraying of farmland (especially in Colombia) suspected of growing drugs, and the consequent destruction of the livelihood of farmers.

The promotion of real crime

We should have learned our lesson from our experiment with prohibition, which spurred the rise of organized crime. Whenever a widely desired something is criminalized, its value will rise exponentially, while the desire for it will remain high, thus creating a need for an organization to fulfill that desire. Peter McWilliams, author of “Ain’t Nobody’s Business If you Do”, explains how this contributes to the rise of organized crime, including narco-trafficking:

If fulfilling that desire is a crime, that organization will be organized crime. Operating outside the law as organized criminals do, they don't differentiate much between crimes with victims and crimes without victims. Further, the enormous amount of money at their disposal allows them to obtain volume discounts when buying police, prosecutors, witnesses, judges, juries, journalists, and politicians…. Once consensual crimes are no longer crimes, organized crime is out of business.

Especially when the forbidden something is an addictive drug, its excessive cost will incite some people to commit crimes they would otherwise not have committed, such as robbery. Crimes committed for this reason can then become habit forming, leading to more crimes.

The time and money that goes into pursuing and punishing victimless crimes drains money away from crime prevention and rehabilitation programs which could otherwise contribute to reducing real crime. It drains money from the criminal justice system which could otherwise be used to pursue real crime. And it even sometimes leads to letting real criminals out of prison to make room for the victimless “criminals”. McWilliams describes the problem:

Real criminals walk free every day to rape, rob, and murder again because the courts are so busy finding consensual criminals guilty of hurting no one but themselves. And even if the courts could process them, the prisons are already full; most are operating at more than 100% capacity. To free cells for consensual criminals, real criminals are put on the street every day.

Contributions to racism and classism

The racial and class disparity in the United States for imprisonment for drug offenses is well known. Though the Federal Household Survey (See item # 6) indicated that 72% of illicit drug users are white, compared to 15% who are black, blacks constitute a highly disproportionate percent of the population arrested for (37%) or serving time for (42% of those in federal prisons and 58% of those in state prisons) drug violations.

Whenever and wherever victimless crimes are prosecuted and punished, the opportunity for arbitrary enforcement of the law based on racism or other nefarious factors is magnified tremendously.

Victimless crimes are unconstitutional

Victimless crimes are not specifically mentioned in our Constitution. Yet, it seems to me that they are intimately related to abuses of our Fourth Amendment. For one thing, warrantless searches and seizures have often been used to obtain evidence of victimless crimes. Secondly, I believe it is fair to say that warrantless searches and seizures and victimless crime laws are often pursued for the same reasons: as a means of wielding political power over selected portions of our population. Furthermore, a victimless crime law seems inconsistent with the idea of “The right of the people to be secure in their persons…” Privacilla elaborates on this:

Victimless crime laws do threaten the privacy of innocents because of the monitoring and investigation they require for enforcement… To enforce this kind of crime law, officials must engage in extensive monitoring, wiretapping, and surveillance of suspects and the public. The existence of victimless crimes tends to erode Fourth Amendment protections that are there to protect the privacy of innocents….

In fact, a recent US Supreme Court decision, Lawrence v. Texas, was argued partially on this basis. The case involved a Texas law that made consensual sex between homosexuals, even within the privacy of their own homes, a crime. The Supreme Court ruled against the state, striking down that law. It is not clear to me whether the Fourth amendment was part of that decision, but the plaintiff did pursue the case based in part upon Fourth Amendment issues, introducing arguments against victimless crimes:

Liberty cannot survive if the legislature demands that people behave in certain ways in their private lives based on majority opinions about what is good or moral…And of course, the Founders believed wholeheartedly that majorities had no right to impose their beliefs on minorities. In Federalist 10, Madison articulated his concern…

It could also be argued that victimless crimes violate our First Amendment restriction against laws “respecting an establishment of religion”, since religious values often provide the foundation for these laws. And certainly the due process clause of our Fifth Amendment is routinely violated by victimless crime laws, especially given the fact that they are so unequally enforced against the poor and minorities.


Nobody can say that we are winning our “war on drugs”, despite the 50 billion or so dollars that we spend on it annually. Drug use in the United States is little different today than it was when the “War on drugs” began”.

McWilliams elaborates further on the cost:

We're losing at least an additional $150 billion in potential tax revenues… moving the underground economy of consensual crimes aboveground would create 6,000,000 tax-paying jobs.

The withholding of medical treatment

Many illicit drugs have important medical uses, but because of the “war on drugs” their use for medical purposes is either completely outlawed or severely curtailed. Marijuana provides exceptionally good symptomatic relief or treatment for a wide range of medical conditions, for which there is no better or even comparable alternative treatment. Yet the pharmaceutical industry (among others) has lobbied extensively against the legalization of medical marijuana, and the federal government has complied by over-ruling state enacted medical marijuana laws. This adds to the huge profits of the pharmaceutical industry while denying millions of Americans symptomatic relief from serious diseases such as cancer or AIDS.

Especially important is the fact that many illicit drugs are highly effective against pain. Because of taboos against potentially addicting drugs, many people are needlessly denied the pain relief that they need to make their lives bearable, even as they are dying.

Reasons for incarcerating people for victimless crimes in the United States

Ever since Richard Nixon declared war on drugs and then trounced George McGovern (the last presidential nominee to seriously question our drug policies) in the 1972 Presidential election, winning every state in the country except for Massachusetts, politicians have believed that a “tough on drugs” stance is usually necessary to further one’s political ambitions.

Another reason for the “war on drugs”, which may apply to the cynical leadership of the Republican Party, is that by disenfranchising hundreds of thousands of minority voters, the conservative agenda and chances for electoral success of the Republican Party are substantially enhanced. Magnifying the effect of imprisonment on disenfranchising voters are laws in many U.S. states that prohibit former felons from voting, thus extending the period of their disenfranchisement for the rest of their lives.

The “war on drugs” gives our government an excuse to intervene in the internal affairs of other countries – such as Colombia. Not to mention the enhanced opportunity it gives to our Executive Branch for control over our own citizens (although today the “war on terror” suffices plenty well for that purpose.) And there is even evidence that the CIA has used the illicit drug trade as a major source of funding for itself.

There are also powerful corporate interests who lobby against certain victimless crimes, especially those involving drugs, because certain illicit drugs compete against their bottom line. Prominent on this list are the alcohol industry, the tobacco industry, the pharmaceutical industry, and those corporate interests that would have to compete against hemp if marijuana became legalized.

Coincident with the burgeoning prison population in the United States, there has also been a large increase in the number of private prisons, which increased from five in 1995 to 100 in 2005, in which year 62,000 persons were incarcerated in private prisons in the United States. Concommitantly with this explosive growth, the private prison industry has increased their profits through the use of slave labor, and they have lobbied extensively for more frequent and longer prison sentences, especially related to drugs. Tara Herivel and Paul Wright discuss this problem extensively in their book, “Prison Profiteers – Who Makes Money from Mass Incarceration”. From their book jacket:

"Beginning with the owners of private prison companies and extending through a whole range of esoteric industries – from the makers of Taser stun guns to riot security training companies, from prison health-care providers to the U.S. military (which relies on prison labor) and the politicians, lawyers, and bankers who structure deals to build new prisons – “Prison Profiteers” introduces us to a motley group of perversely motivated interests and shows us how they both profit from and perpetuate mass imprisonment… traces the flow of capital from public to private hands, reveals how monies designated for the public good end up in the pockets of enterprises dedicated to keeping prison cells filled."

Some final words on victimless crimes

As far as I’m concerned, victimless crimes and an incarceration rate of nearly one percent are outrages. Our federal prison system provides a public, not a private service. When corporations are offered the opportunity to profit from a system like this, the potential for abuses, such as violating peoples’ Constitutional rights by making them into slaves, is large.

And what right do these corporations have to interfere with our justice system by lobbying for harsher prison sentences – especially where victimless crimes are concerned? Yes, our Constitutional gives all Americans the right to petition Congress. But can’t we make a distinction between petitioning and bribing? Those who lobby our government for the purpose of perpetuating these outrages are the real criminals.

I’ll end this post with a quote from Walter Cronkite on behalf of the Drug Policy Alliance. This quote is directed at the war on drugs, but they apply just as much to all victimless crimes:

The federal government has fought terminally ill patients whose doctors say medical marijuana could provide a modicum of relief from their suffering – as though a cancer patient who uses marijuana to relieve the wrenching nausea caused by chemotherapy is somehow a criminal who threatens the public.

People who do genuinely have a problem with drugs, meanwhile, are being imprisoned when what they really need is treatment. And what is the impact of this policy? It surely hasn't made our streets safer. Instead, we have locked up literally millions of people...disproportionately people of color...who have caused little or no harm to others – wasting resources that could be used for counter-terrorism, reducing violent crime, or catching white-collar criminals.

With police wielding unprecedented powers to invade privacy, tap phones and conduct searches seemingly at random, our civil liberties are in a very precarious condition.

Hundreds of billions of dollars have been spent on this effort – with no one held accountable for its failure…

But nothing will change until someone has the courage to stand up and say what so many politicians privately know: The war on drugs is a failure.

This article was originally published on Democratic Underground on June 9, 2009, at the following link. It is reposted on PLN's site with permission of the author.

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