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Home > CJ Ethics > Pt 2 What Should be A Crime  | Buy CJ Ethics

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. 

Harm Principle
Google IPO Risks
Wisc v Mitchell
Hate Crime
Virginia v Black
In Re P
Corporate Harm

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Author, Title & summary

Criminal Justice Ethics topics and pages

II.1 Principles for Understanding What Should Be A Crime

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). 

Harm Principle, Paternalism & Moralsim

background on Mill from the Utilitarianism overview

II.2 Case Studies in the Limits of Law


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.” 

the Drug Legalization Debate


marijana and drug legalization


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. 

Prostitution & Sex work

In Re P (Legal case striking down prostitution law)

from Paul's Domestic Violence & Sexual Assault class: internet exercises on Pornography, Obscenity & Sex Work

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.” 

Corporate Violence

Elite Deviance & Corporate Crime section of PaulsJusticePage
The Rich Get Richer & the Poor Get Prison

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. 

Hate Crimes & Hate Speech

Wisconsin v Mitchell
Virginia v Black (2002 cross burning case)
Hate Crimes info, including against gays and lesbians from

Stop Crime & Violence


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.

The Abortion Debate

Up ] Ethics Overview ] 1: Morality of Law ] [ 2: What Should Be A Crime ] 3: Police Ethics ] 4: Courts & Lawyers ] 5: Penology & Punishment ] 6: Emerging Issues ] Appendix: Ethical Codes ]

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