Ain't Nobody's Business If You Do

PART II: WHY LAWS AGAINST CONSENSUAL ACTIVITIES ARE NOT A GOOD IDEA

CONSENSUAL CRIMES CORRUPT LAW ENFORCEMENT

Few men have virtue
to withstand the highest bidder.

NO MATTER HOW loudly they may pontificate, the fact is mostpeopleinlaw enforcement do not consider consensual activities crimes. Each year since 1930, the United States Department of Justice and the Federal Bureau of Investigation have published the telephone book-sized Uniform Crime Reports. The advisory board for this report includes the International Association of Chiefs of Police and the National Sheriffs Association.

And what crime statistic do the U.S. Department of Justice, the Federal Bureau of Investigation, the International Association of Chiefs of Police, and the National Sheriffs Association think most important? They have two categories: violent crime and property crime. Under violent crime are murder and negligent manslaughter, forcible (as opposed to statutory) rape, robbery, and aggravated assault. Under property crime are burglary, larceny-theft, motor vehicle theft, and arson. The report says that these crimes, known collectively as the "Crime Index," are used "for gauging fluctuations in the overall volume and rate of crime."

According to the most recent report, in the late 1980s "law enforcement called for a thorough evaluative study that would modernize the UCR (Uniform Crime Reporting) program." After years of study, what was added to the report? Hate crime statistics and law enforcement officers killed and assaulted.

Not a single consensual crime in the lot.

The contempt for law
and the contempt
for the human consequences
of lawbreaking
go from the bottom
to the top of American society.

Law enforcement is based on a very simple premise: there is a perpetrator and a victim. The police catch the accused perpetrator and put him or her in jail. The courts then decide the guilt or innocence of the accused and an appropriate punishment if guilty. This protects the victim and others from further victimization and keeps the perpetrator from further perpetrations.

A serious problem arises when the accused perpetrator and the victim are one and the same. Such is the case with consensual crimes. When the police put the accused in jail, they are putting the victim in jail too. How, then, can the police protect the victim? Law enforcement, thus perverted, begins to deteriorate.

With a real crime, the genuine victim goes to the police and reports it. The police then set about to catch the criminal. With consensual crime, who reports the crime? Obviously, no one directly involved. Everyone consented to it; they're not going to be complaining to the police. The police, then, must become spies, busybodies, and entrappers in order to catch consensual criminals victimizing themselves. Imagine how demoralizing and corrupting this entire procedure can be to both police and society.

As Jackson Eli Reynolds reported in The Washington Post,

Drug offenses ... may be regarded as the prototypes of non-victim crimes today. The private nature of the sale and use of these drugs has led the police to resort to methods of detection and surveillance that intrude upon our privacy, including illegal search, eavesdropping, and entrapment.

Indeed, the successful prosecution of such cases often requires police infringement of the constitutional protections that safeguard the privacy of individuals.

The police
are not here
to create disorder.
The police are here
to preserve disorder.

Why, then, don't law enforcement officials speak out against the enforcement of laws against consensual activities? It's not a popular position - not with the general public, not with religious leaders, not with organized crime, not with politicians (who use crackdown-on-consensual-crime rhetoric to get easy votes), and not with some law enforcement officials.

Law enforcement officials who are against the legalization of consensual crimes tend to fall into three categories: the conservative, the concerned, and the corrupt.

The Conservative. Due to their personal convictions (often religious), they do not like one, some, or all of the consensual crimes. These officials usually discuss "morality," "the family," and "the values of decent Americans."

These law enforcement officials are sincerely misguided. They are in a better position than most to know that personal morality cannot be regulated by force of law. They are faced daily with genuine victims of preventable crimes, whose suffering could have been avoided if there were more police to patrol certain areas or investigate certain crimes. These officials watch violent criminals, who they know are guilty, go free because there aren't enough detectives to gather the evidence necessary for conviction. And yet, because these officials believe personally that consensual crimes are wrong, they believe that consensual "criminals" should be punished.

When you're a lawman
and you're dealing with people,
you do a whole lot better
if you go not so much by the book
but by the heart.

The Concerned. These law enforcement officials know that the pursuit of consensual crimes is (a) hopeless, (b) a waste of time, and (c) counterproductive. Yet, when they consider the consequences of legalization, they become concerned. For example, drunk drivers kill more than 22,000 people each year. If drugs were legalized, wouldn't this rate be increased by "stoned" drivers? One doesn't need to see too many traffic accidents to realize that whatever we need to do to prevent even one more of these should be done. These officials are concerned, too, that a useful tool for investigating and gaining confessions to genuine crimes might be taken away. (In order to have a consensual crime charge dropped, some suspects "talk" and provide valuable information about real crimes.)

As to these people's concerns, I pray that a thoughtful reading of this book will ease many of them. We'll explore the genuine crime of operating a motor vehicle while incapacitated (for whatever reason) in the chapter, "Protective Technology." As to using consensual crimes as a tool for gathering information on genuine crimes, I can only suggest that loyal law enforcement officers were probably concerned when physical torture was officially removed from their arsenal of interrogation. As effective as using consensual crime violations to reveal information about real crimes may be, its potential for abuses far outweighs its advantages. For example, in order to get off, a suspect might give false evidence against someone, helping to convict an innocent person. As much as law enforcement officials want crimes solved, only corrupt law enforcement officials want those crimes "cleared" by the conviction of innocent parties. Which brings us to ...

Only in a police state
is the job of a policeman easy.

The Corrupt. These are the law enforcement officials who are getting something from consensual crimes remaining crimes. At the lower levels of corruption are police officers looking for easy collars. A collar is a police term meaning "arrest." Many police departments require a minimum number of collars per officer per month. As the month nears its end, police officers actively seek arrests to fulfill their quotas. What do you suppose are the easiest collars to make? People committing consensual crimes, of course. What could be easier than going where drug dealers and prostitutes ply their trades, or where gays and gamblers hang out, and then wait until something "illegal" is either offered or observed? Not only are these easy arrests; they also tend to be relatively risk-free. Consensual "criminals" (other than higher-level and gang-related drug dealers) are not famous for carrying weapons or resisting arrest.

At the next level of corruption are the officers who get "free samples" from drug dealers, prostitutes, and the like. At the next level up (down?) are the ones who get financial kickbacks for looking the other way.

Then there are those who get the collars and the cash. The famous "suitcases full of money" are very real, especially in drug dealing. (Prostitutes don't tend to carry suitcases full of money.) Who knows how much money is in a suitcase full of cash? (A million dollars in $100 bills fits comfortably into a mid-sized Samsonite.) From the time of the bust until the suitcase gets checked into evidence, the contents could be down by, oh, $50,000. With the outrageously inflated prices caused by the illegalization of drugs, $50,000's worth of cocaine or heroin could get sidetracked on the trip downtown and nobody would notice. If somebody did notice, well, an arrangement could be made. ("Here. You take a bag, too.")

Someday I want to be rich.
Some people get so rich
they lose all respect for humanity.
That's how rich
I want to be.

Sometimes otherwise honest cops go wrong simply because the amounts of money involved in consensual crimes are entirely too tempting. These are cops, not saints.

This "easy money" corruption goes right to the top. One example: When an accused consensual criminal's land, property, or money is seized under federal assets forfeiture laws, the income is split between federal and local law enforcement. According to the Los Angeles Times (April 13, 1993), however, the Los Angeles Sheriff's Department failed to turn over $60 million to the feds. A former sheriff's department sergeant was quoted as saying the sheriff's department "stole $60 million" from the feds in 1988 and 1989 drug busts, and the Times added, "he is convinced such practices continue."

In addition to the opportunity for pilfering cash and drugs seized in raids, organized crime offers police large sums of money in exchange for information, participation, or cooperation. In multimillion dollar drug deals, a sizable amount is set aside for "security." Should consensual crimes go the way of alcohol prohibition, there would be very little for law enforcement personnel on the take to take.

There's not much to say about corrupt law enforcement officials. Even though their graft may have begun innocently enough - perhaps even accidentally - over time they become spoiled, complacent, and lazy. If you're getting $200,000 a year for simply looking the other way, why would you want to go back to $38,000 a year looking for criminals? This laziness extends even into the milder forms of corruption, such as padding the collar quota with consensual crimes. Those on the easy "vice" details - entrapping prostitutes and gays or rounding up pornographers and gamblers - are not going to be pleased at the prospect of returning to the real world of cops and robbers.

If my business could be made legal
I and women like me could make
a big contribution to what
Mayor Lindsay calls "Fun City,"
and the city and state could
derive the money in taxes and
licensing  fees that I pay off to
crooked cops and political figures.

And, in case you think the judicial system is keeping a watchful eye on police corruption, this news item should soothe:

In Michigan, Alger County Circuit Court Judge Charles Stark sentenced convicted rapist David Caballero to pay $975 in court costs and $200 compensation to the victim and serve three years' probation, after which the conviction would be removed from his record. Stark explained he gave Caballero the lenient sentence because a conviction would have prevented the twenty-one-year-old college student, a criminal justice major, from achieving his goal of becoming a police officer.

It's time we returned to respect and admiration for law enforcement, and made law enforcement, once again, a respectable and admirable profession. With the ambivalence many have about police, some who are naturally drawn to the field of law enforcement have mixed feelings about becoming police. This reluctance is unfortunate.

When we, as a society, stop forcing the police to be "clergymen with billy clubs," we will naturally appreciate them for the service they provide each day.

Stan Guffey,
a high school basketball referee,
was working a game
in Oklahoma City
when a policeman came
onto the court and arrested him
for not calling enough fouls
during the game.

No one has mixed feelings about firefighters, for example. Firefighters are there when we need them and, when we don't, they are happy to play cards, watch television, and give lectures on fire prevention. If, however, we gave the firefighters the added responsibility of making sure that there were no "inappropriate" sexual fires blazing in the community, we would probably start to look on firefighters with a wary eye.

As absurd as this situation sounds, this is precisely the job we've given the police. It's an impossible job that invites corruption and dissipates respect. The police have been burdened with this job far too long. It's time to free the police to do their real job, which is catching real criminals - people who physically harm the person or property of others. That's all.

As Norval Morris and Gordon Hawkins explained in their book, The Honest Politician's Guide to Crime Control,

The prime function of the criminal law is to protect our persons and our property; these purposes are now engulfed in a mass of other distracting, inefficiently performed, legislative duties. When the criminal law invades the spheres of private morality and social welfare, it exceeds its proper limits at the cost of neglecting its primary tasks. This unwarranted extension is expensive, ineffective, and criminogenic.

Personally, I have great respect for the police, not only because they have the courage to face muggers and murderers, but also because they have the courage to face all that paperwork. As P. J. O'Rourke pointed out,

A modern arrest requires a stack of forms as thick as a Sunday New York Times "Arts and Leisure" section, and filling them out is as complicated as buying something at Bloomingdale's with an out-of-state check. A modern conviction requires just as much effort and tedium in court. The average D.C. cop, for example, spends twenty days of his month testifying or waiting to do so.

Bureaucracy defends
the status quo
long past the time
when the quo
has lost its status.

Most of the police I've met are genuinely dedicated to peace, in the broadest sense of the term. They want people to feel safe in their homes, in their cars, in their businesses, and walking down the street. If the police keep in check the small percentage of the population that violates that peace, they consider their job well done.

I wholeheartedly support that job. If we removed the futile enforcement of laws against consensual activities from their job descriptions, policemen, policewomen, sheriffs, constables, G-men, G-women, and all the rest would once again become something they haven't been called in some time: peace officers.

Copyright © 1996 Peter McWilliams & Prelude Press

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