Overview,
Part 2: What Should Be A Crime?
This section
explores the conflicts between freedom, preventing harm, and paternalism or
legal moralism. The first section looks at the principles, followed by case
studies on drugs, prostitution, corporate violence, hate crimes, and
abortion.
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Author, Title &
summary |
Criminal Justice
Ethics topics and pages |
II.1 Principles for
Understanding What Should Be A Crime
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The various and conflicting principles
about liberty, harm, and paternalism are set out by David A. J. Richards
in “The Moral Foundations of Decriminalization,” and Joel Feinberg
in “Hard Cases for the Harm Principle.”
In his classic defense
of individual freedom, On Liberty, the British philosopher John
Stuart Mill formulated the “harm principle”: the only
legitimate reason for using the law to limit adults’ freedom of action
is to prevent harm to others. On
this principle, legal paternalism is illegitimate because
paternalistic laws criminalize actions that would harm the
actor him or herself, such as laws requiring motorcyclists to wear
helmets or prohibiting adults from drinking alcohol or taking drugs.
Likewise, legal moralism is ruled out because moralistic
laws enforce prevailing moral beliefs where no clear harm to others can
be shown, such as laws against prostitution or public drunkenness.
Nonetheless, many would hold that legal paternalism is justified
because it protects people from unwise choices that may harm them down
the road, and others hold that legal moralism is justified as expressing
the democratic right of the majority to rule. Some who are sympathetic to the harm principle would hold that
legal coercion is justified to protect people against behavior that is
harmless but offensive (such as laws against public nudity), or to
ensure collective support of valuable public goods (such as laws that
require people to pay taxes for education even if they do not have
children to send to school).
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II.2 Case Studies in the
Limits of Law
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Drugs
Arnold
Trebach, former head of the Drug Policy Foundation, believes that many of
the harms associated with drugs are related more to the laws against them
than to the effects of the drugs themselves. He believes that people
should have the right to choose what to put in their bodies and advocates
“returning the power of individual choice to the citizens of a
supposedly free country over a very intimate matter.” He offers several
plans for legalizing drugs.
Inciardi details many of the public health problems associated with
legal drugs to highlight his concern that legalizing drugs would be detrimental to public
health. He argues that there are dangers and health consequences of
marijuana, cocaine and heroin – and claims that the belief that
legalization would “eliminate crime, overdose, infections, and life
dislocations for its users is for the most part delusional.” Inciardi
details the problems of crack cocaine, especially, and emphasizes that his
ideas on policy are based on visits to crack houses on the “mean and
despairing streets.”
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Prostitution
The case for prostitution laws is set forth in the
American Legal Institute’s 1959 Model Penal Code Comment:
Prostitution
is an important source of venereal disease… it is a source of profit and
power for criminal groups who commonly combine it with illicit trade in
drugs and liquor, illegal gambling and even robbery and extortion. Prostitution is also a corrupt influence on government and
law enforcement machinery. Its
promoters are willing and able to pay for police protection; and
unscrupulous officials find them an easy mark for extortion. Finally some view prostitution as a significant factor in social
disorganization, encouraging sex, delinquency and undermining marriage,
the home, and individual character (quoted in Cherry v Koch 491
NYS2d 934, 944).
In re P
is a judicial decision that argues against all of these concerns and
strikes down New York State’s prostitution statute as unconstitutional.
(It also releases a 14 year old girl from charges that she agreed to
exchange sexual acts for a fee of $10.) The judge further argues that the
statute is applied in an unequal manner that disadvantages women and thus
undermines any argument that such laws can be justified on the
paternalistic ground that they protect women.
In “Prostitution and Civil Rights,” feminist legal
scholar Catharine MacKinnon expresses a similar concern about sex
discrimination in the application of the law. She argues that, in sexist
societies such as our own, all prostitution is forced prostitution
and sexual slavery; the prostitution laws further victimize women who are
already victimized by being prostitutes. MacKinnon does not favor
repealing prostitution laws, but wants to find new legal tools to deal
with women’s subordination.
The International Committee for Prostitutes’ Rights agrees with
MacKinnon that prostitutes are denied a wide range of civil and human
rights, but as their “World Charter and World Whores’ Congress
Statements” makes clear, they want to “decriminalize all aspects of
adult prostitution resulting from individual decision.” The statement
claims that prostitution should be recognized as a legitimate career
choice; they argue for a variety of reforms that (1) reduce economic and
social coercion on women and children to engage in prostitution and (2)
protect adults who have freely chosen to engage in prostitution from
fraud, rape, violence and extortion.
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Corporate Harm & Violence:
the Tobacco Industry
In
contrast to the previous sections arguing about decriminalizing acts
currently prohibited by law, the reading on corporate violence
raises the concern that more of harmful corporate acts should be treated as
crimes if the criminal justice system is really interested in protecting
us against all harmful behavior – and not just against the harmful
behavior of poor people. In “A Crime by Any Other Name,” Jeffrey
Reiman argues that many acts of corporations are not treated as criminals
even though they cause more physical harm and death than the crimes of
homicide and aggravated assault. Stanton
Glantz presents a case study about what the tobacco
industry really knew about the harmfulness and addictive nature of its
product, in “Looking Through a Keyhole at the Tobacco Industry.”
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Hate Crimes & Hate
Speech
As the United States
strives to be a more tolerant and inclusive society, hate crimes and hate
speech are matters of great concern. Some believe that hate crimes are
best dealt with through existing assault laws and that racist, sexist and
homophobic hate speech are simply offensive utterances protected by the
first Amendment’s guarantee of free expression. Others see expressions
of hatred as involving an extra harm related to intimidation or terrorism.
In RAV v St Paul (1992), the US Supreme Court invalidated a
law making it a crime to display objects like a burning cross that
“arouses anger, alarm or resentment in others on the basis of race,
color, creed, religion or gender.” But this case did not resolve
questions about sentencing enhancements for bias motivated assaults. Wisconsin
v Mitchell deals directly
with this question, and a sharply divided Wisconsin Supreme Court strikes
down the statute. We reprint this state court decision because it includes
three separate opinions and a thoughtful debate, although the result was
overruled by the Supreme Court in a unanimous 1993 decision.
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Abortion
In a
series of articles, philosophers Don Marquis and Jeffrey Reiman debate
the question of the morality of abortion and its possible harms. In “Why Abortion Is Immoral,” Marquis argues that abortion is
wrong because it deprives a fetus of a future life much in the way that
killing an adult--even in her sleep--deprives her of a future life. One feature of Marquis’s defense of this position is that it
accounts for most people’s belief that infanticide is as wrong as the
killing of adults. In
“Abortion, Infanticide, and the Asymmetric Value of Human Life,”
Reiman holds that our beliefs about the wrongness of the killing humans
only make sense if we assume that they are meant to protect the lives of
people who are already aware of being alive and caring about continuing.
He thus concludes that abortion, since it happens to a fetus who
is not yet aware of being alive, is morally permissible. He contends that the killing of infants--who are also not yet
aware of being alive--must be condemned on other grounds. In rejoinders, Marquis and Reiman defend their own views, and
offer critiques of each other’s argument.
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