Public order crime
Encyclopedia
In criminology
, public-order crime is defined by Siegel (2004) as "...crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e. it is behaviour that has been labelled criminal because it is contrary to shared norms
, social values, and custom
s. Robertson (1989:123) maintains that a crime is nothing more than "...an act that contravenes a law." Generally speaking, deviancy
is criminalized
when it is too disruptive and has proved uncontrollable through informal sanctions.
Public order crime should be distinguished from political crime
. In the former, although the identity of the "victim" may be indirect and sometimes diffuse, it is cumulatively the community that suffers, whereas in a political crime, the state
perceives itself to be the victim and criminalizes the behaviour it considers threatening. Thus, public order crime includes consensual crime
, victimless vice, and victimless crime. It asserts the need to use the law to maintain order both in the legal and moral
sense. Public order crime is now the preferred term by proponents as against the use of the word "victimless" based on the idea that there are secondary victims (family, friends, acquaintances, and society at large) that can be identified.
For example, in cases where a criminal act subverts or undermines the commercial effectiveness of normative business practices, the negative consequences extend beyond those at whom the specific immediate harm was intended. Similarly, in environmental law
, there are offences that do not have a direct, immediate and tangible victim, so crimes go largely unreported and unprosecuted because of the problem of lack of victim awareness. In short, there are no clear, unequivocal definitions of 'consensus', 'harm', 'injury', 'offender', and 'victim'. Such judgments are always informed by contestable, epistemological, moral, and political
assumptions (de Haan, 1990: 154).
, focusing on whether it is appropriate to use punishment
to enforce the various public policies that regulate the nominated behaviours. After all, society could deal with unpopular behaviour without invoking criminal or other legal processes.
Following the work of Schur (1965), the types of crime usually referred to include the sexually based offences of prostitution
, paraphilia
(i.e., sexual practices considered deviant), underage sex, and pornography
; and the offences involving substance abuse which may or may not involve some element of public disorder or danger to the public as in driving while intoxicated. Since 1965, however, societal views have changed greatly, for example, prostitution
, often considered a victimless crime, is classified by some countries as a form of exploitation of women—such views are held in Sweden
, Norway
and Iceland
, where it is illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute), see Prostitution in Sweden
.
When deciding whether harm to innocent individuals should be prohibited, the moral and political beliefs held by those in power interact and inform the decisions to create or repeal crimes without apparent victims. These decisions change over time as moral standards change. For example, Margaret Sanger
who founded the first birth control clinic in New York City was accused of distributing obscene
material and violating public morals
. Information about birth control is no longer considered obscene (see the U.S. case law examples). Within the context of a discussion (Feinberg: 1984) on whether government
s should regulate public morals in the interest of the public good, Meier & Geis (1997) identify which social problems might be deemed appropriate for legal intervention and the extent to which the criminal law should enforce moral positions which may lack societal consensus.
This reflects a more fundamental problem of legal consistency. People have the right to engage in some self-destructive activities. For all its carcinogenic qualities, tobacco is not a prohibited substance. Similarly, the excessive consumption of alcohol can have severe physical consequences, but it is not a crime to consume it. This is matched in gambling. The state and its institutions often rely on lotteries
, raffle
s, and other legal forms of gambling for operating funds, whether directly or indirectly through the taxation of profits from casino
s and other licensed outlets. Qualitatively, there is nothing to distinguish the forms of gambling deemed illegal. A side effect of turning too many people into criminals is that the concept of crime becomes blurred and genuine criminality becomes less unacceptable. If the key distinction between real crime and moral regulation is not made clearly, as more consensual activities become crimes, ordinary citizens are criminalized for tax-evasion, illegal downloading, and other voluntary rule-breaking. A further perceptual problem emerges when laws remain in force but are obviously not enforced, i.e. the police reflect the consensus view that the activity should not be a crime. Alternatively, if the activities prohibited are consensual and committed in private, this offers incentives to the organizers to offer bribes
in exchange for diverting enforcement resources or to overlooking discovered activity, thereby encouraging political
and police corruption
. Thus, any deterrent message that the state might wish to send is distorted or lost.
More generally, political parties find it easier to talk dismissively about crimes if they are classified as victimless because their abolition or amendment looks to have fewer economic
and political costs, i.e. the use of the word "victimless" implies that there are no injuries caused by these crimes (Robertson 1989:125) and, if that is true, then there is no need to create or retain the criminal offences. This may reflect a limited form of reality that, in the so-called "victimless crimes", there are no immediate victims to make police reports and those who engage in the given behaviour regard the law as inappropriate, not themselves. This has two consequences:
to those proposing to engage in the behaviour causing harm. The state becomes involved because the costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty and so minimising harm to others). The process of criminalization should be controlled by the state because:
and are therefore more likely to remain hidden. These factors are used to argue for decriminalization. Low or falling arrest statistics are used to assert that the incidence of the relevant crimes is low or now under control. Alternatively, keeping some of these "vices" as crimes simply keeps organized crime in business.
principles should encourage the governments elected by those majorities to repeal the laws. Failure to do so simply undermines respect for all laws, including those laws that should, and, indeed, must be followed. Indeed, when considering the range of activities prohibited, the practical policing of all these crimes would require the creation of a police state
intruding into every aspect of the peoples' lives, no matter how private
. It is unlikely that this application of power
would be accepted even if history showed such high-profile enforcement to be effective. Prohibition
did not prevent the consumption of alcohol, and the present War on Drugs
is expensive and ineffective. Those who favor decriminalization also point to experience in those countries which permit activities such as recreational drug use. There is clear evidence of lower levels of substance abuse and disruptive behavior.
inherent in the behaviour and the proper role for the law. Consequently, the effectiveness and scope of the law has proved limited, both creating and solving problems. The following are examples of the research findings used to construct arguments that there are victims. It is accepted that there are other arguments that many consider equally convincing (as an example).
, cocaine
, and, later, morphine
were common ingredients of patent medicine
s, and "opium den
s" were not uncommon in the larger urban areas. Extracts from the coca leaf were included in the original Coca-Cola
and, in 1900, heroin was promoted as a cough medication and a treatment for lung diseases. But problems flowing from addiction led many to perceive the drug element of medications to be morally destructive. In the United States, the Supreme Court decisions of Webb et al. v U.S. 249 U.S. 96 (1919) http://www.druglibrary.org/SCHAFFER/History/webb.html and U.S. v Behrman 258 U.S. 280 (1922) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=258&invol=280&friend=nytimes drove the use of narcotics underground and consolidated their criminal status.
In the terms adopted by Schur (1965), drug dealing is now victimless because neither the buyer nor the seller is likely to report it. However, many criminologist argue that there are victims . The consumption of some drugs can damage the health of users and, in some cases, cause death through overdose because substitution or poor quality, although this potential for harm may be operationally indistinct from the potentials for harm associated with other noncriminal behaviors, such as driving a car while tired or over-consumption of healthy foods. Some argue that if drugs were available legally, they would be less harmful (see the drug policy of the Netherlands
). When drugs are illegal, the price is higher, and maintaining the habit takes the money that would otherwise be spent on food, shelter, and clothing. The resultant neglect is a contributory factor to the addict's physical deterioration. In Australia, Walker (1991) finds a strong link between substance abuse and crime. In general, making drugs illegal results in an exponential increase in their price so that addicts must indulge in theft
, robbery
, and burglary
to support their habits. Those people who experience those crimes are indirect victims of the drug sale. The need to fund addiction also drives some into distribution where they are more prone to violent attack and murder. These findings are matched elsewhere. Meier and Geis (1997) confirm that drug dealing is an area where victims are third parties who experience harm only indirectly through, say, losses from drug-related crime
, and the costs of enforcing drug laws and of treating addiction, and the public health costs for treating illness and disease consequent on the addiction, e.g. HIV
infection through using the same needles. In Australia, for example, the National Campaign against Drug Abuse (see Collins & Lapsley 1991) gives a figure of just over $1.2 billion for total costs of the abuse of illicit drugs in Australia in 1988, including treatment of drug-related illness, accidents resulting from drug use/misuse, loss of productivity due to absenteeism, premature death, property crime and damage, and excluding justice system costs. Conklin (1997: 100) reports the cost of illegal drug use in the U.S. in 1989 at $60 billion a year, a 20% increase over the estimate in 1985. The rise in cost to the state can only be met out of tax revenue, but the burden is not shared equally. Income actually spent on drugs is displaced from purchases that would otherwise have generated sales tax and income tax revenue. Similarly, the substantial profits made by the dealers is not taxed. Thus, the citizens who declare income for tax purposes must pay more to offset the cost of non-capture of drug revenue in their society.
As with prostitution, crime related to drug dealing also affects the amenity of a neighbourhood, destroying property values and causing the flight of the middle class to the "safer" suburbs. If the police do intervene, they may alienate law-abiding community members who are stopped and questioned, and only displace the drug dealing indoors, thus making it more resistant to police interventions. Police may also use their power to extract rents from the drug selling community. Further, Sampson (2002) comments that because intensive police enforcement is by its very nature temporary, the impact is often only short-term and dependent on the resiliency of the market and the buyers which has been shown to be strong. Some officers have argued that intensive enforcement shows the community that the police care about the problem; however, some of the unintended effects may, in fact, have the opposite result. For a more general exposition, see arguments for and against drug prohibition
.
Criminology
Criminology is the scientific study of the nature, extent, causes, and control of criminal behavior in both the individual and in society...
, public-order crime is defined by Siegel (2004) as "...crime which involves acts that interfere with the operations of society and the ability of people to function efficiently", i.e. it is behaviour that has been labelled criminal because it is contrary to shared norms
Norm (sociology)
Social norms are the accepted behaviors within a society or group. This sociological and social psychological term has been defined as "the rules that a group uses for appropriate and inappropriate values, beliefs, attitudes and behaviors. These rules may be explicit or implicit...
, social values, and custom
Convention (norm)
A convention is a set of agreed, stipulated or generally accepted standards, norms, social norms or criteria, often taking the form of a custom....
s. Robertson (1989:123) maintains that a crime is nothing more than "...an act that contravenes a law." Generally speaking, deviancy
Deviant Behavior
Deviant Behavior is an interdisciplinary journal which focuses on social deviance, including criminal, sexual, and narcotic behaviors.The journal is published by Taylor and Francis, Inc., and was ranked 41st out of 46 psychology journals and 46th out of 90 sociology journals in 2004 by the...
is criminalized
Criminalization
Criminalization or criminalisation, in criminology, is "the process by which behaviors and individuals are transformed into crime and criminals". Previously legal acts may be transformed into crimes by legislation or judicial decision...
when it is too disruptive and has proved uncontrollable through informal sanctions.
Public order crime should be distinguished from political crime
Political crime
In criminology, a political crime is an offence involving overt acts or omissions , which prejudice the interests of the state, its government or the political system...
. In the former, although the identity of the "victim" may be indirect and sometimes diffuse, it is cumulatively the community that suffers, whereas in a political crime, the state
State (polity)
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
perceives itself to be the victim and criminalizes the behaviour it considers threatening. Thus, public order crime includes consensual crime
Consensual crime
A consensual crime is a public order crime that involves more than one participant, all of whom give their consent as willing participants in an activity that is unlawful....
, victimless vice, and victimless crime. It asserts the need to use the law to maintain order both in the legal and moral
Morality
Morality is the differentiation among intentions, decisions, and actions between those that are good and bad . A moral code is a system of morality and a moral is any one practice or teaching within a moral code...
sense. Public order crime is now the preferred term by proponents as against the use of the word "victimless" based on the idea that there are secondary victims (family, friends, acquaintances, and society at large) that can be identified.
For example, in cases where a criminal act subverts or undermines the commercial effectiveness of normative business practices, the negative consequences extend beyond those at whom the specific immediate harm was intended. Similarly, in environmental law
Environmental law
Environmental law is a complex and interlocking body of treaties, conventions, statutes, regulations, and common law that operates to regulate the interaction of humanity and the natural environment, toward the purpose of reducing the impacts of human activity...
, there are offences that do not have a direct, immediate and tangible victim, so crimes go largely unreported and unprosecuted because of the problem of lack of victim awareness. In short, there are no clear, unequivocal definitions of 'consensus', 'harm', 'injury', 'offender', and 'victim'. Such judgments are always informed by contestable, epistemological, moral, and political
Politics
Politics is a process by which groups of people make collective decisions. The term is generally applied to the art or science of running governmental or state affairs, including behavior within civil governments, but also applies to institutions, fields, and special interest groups such as the...
assumptions (de Haan, 1990: 154).
England and Wales
See the following:- English criminal law#Public order offences
- History of English criminal law#Public order offences
Crimes without apparent victims
In public order crimes, there are many instances of criminality where a person is accused because he/she has made a personal choice to engage in an activity of which society disapproves, e.g. private recreational drug use. Thus, there is continuing political debate on criminalization versus decriminalizationDecriminalization
Decriminalization or Decriminalisation is the abolition of criminal penalties in relation to certain acts, perhaps retroactively, though perhaps regulated permits or fines might still apply . The reverse process is criminalization.Decriminalization reflects changing social and moral views...
, focusing on whether it is appropriate to use punishment
Punishment
Punishment is the authoritative imposition of something negative or unpleasant on a person or animal in response to behavior deemed wrong by an individual or group....
to enforce the various public policies that regulate the nominated behaviours. After all, society could deal with unpopular behaviour without invoking criminal or other legal processes.
Following the work of Schur (1965), the types of crime usually referred to include the sexually based offences of prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
, paraphilia
Paraphilia
Paraphilia is a biomedical term used to describe sexual arousal to objects, situations, or individuals that are not part of normative stimulation and that may cause distress or serious problems for the paraphiliac or persons associated with him or her...
(i.e., sexual practices considered deviant), underage sex, and pornography
Pornography
Pornography or porn is the explicit portrayal of sexual subject matter for the purposes of sexual arousal and erotic satisfaction.Pornography may use any of a variety of media, ranging from books, magazines, postcards, photos, sculpture, drawing, painting, animation, sound recording, film, video,...
; and the offences involving substance abuse which may or may not involve some element of public disorder or danger to the public as in driving while intoxicated. Since 1965, however, societal views have changed greatly, for example, prostitution
Prostitution
Prostitution is the act or practice of providing sexual services to another person in return for payment. The person who receives payment for sexual services is called a prostitute and the person who receives such services is known by a multitude of terms, including a "john". Prostitution is one of...
, often considered a victimless crime, is classified by some countries as a form of exploitation of women—such views are held in Sweden
Sweden
Sweden , officially the Kingdom of Sweden , is a Nordic country on the Scandinavian Peninsula in Northern Europe. Sweden borders with Norway and Finland and is connected to Denmark by a bridge-tunnel across the Öresund....
, Norway
Norway
Norway , officially the Kingdom of Norway, is a Nordic unitary constitutional monarchy whose territory comprises the western portion of the Scandinavian Peninsula, Jan Mayen, and the Arctic archipelago of Svalbard and Bouvet Island. Norway has a total area of and a population of about 4.9 million...
and Iceland
Iceland
Iceland , described as the Republic of Iceland, is a Nordic and European island country in the North Atlantic Ocean, on the Mid-Atlantic Ridge. Iceland also refers to the main island of the country, which contains almost all the population and almost all the land area. The country has a population...
, where it is illegal to pay for sex, but not to be a prostitute (the client commits a crime, but not the prostitute), see Prostitution in Sweden
Prostitution in Sweden
The laws on prostitution in Sweden make it illegal to buy sexual services, but not to sell them. Pimping, procuring and operating a brothel are also illegal...
.
When deciding whether harm to innocent individuals should be prohibited, the moral and political beliefs held by those in power interact and inform the decisions to create or repeal crimes without apparent victims. These decisions change over time as moral standards change. For example, Margaret Sanger
Margaret Sanger
Margaret Higgins Sanger was an American sex educator, nurse, and birth control activist. Sanger coined the term birth control, opened the first birth control clinic in the United States, and established Planned Parenthood...
who founded the first birth control clinic in New York City was accused of distributing obscene
Obscenity
An obscenity is any statement or act which strongly offends the prevalent morality of the time, is a profanity, or is otherwise taboo, indecent, abhorrent, or disgusting, or is especially inauspicious...
material and violating public morals
Public morality
Public morality refers to moral and ethical standards enforced in a society, by law or police work or social pressure, and applied to public life, to the content of the media, and to conduct in public places...
. Information about birth control is no longer considered obscene (see the U.S. case law examples). Within the context of a discussion (Feinberg: 1984) on whether government
Government
Government refers to the legislators, administrators, and arbitrators in the administrative bureaucracy who control a state at a given time, and to the system of government by which they are organized...
s should regulate public morals in the interest of the public good, Meier & Geis (1997) identify which social problems might be deemed appropriate for legal intervention and the extent to which the criminal law should enforce moral positions which may lack societal consensus.
This reflects a more fundamental problem of legal consistency. People have the right to engage in some self-destructive activities. For all its carcinogenic qualities, tobacco is not a prohibited substance. Similarly, the excessive consumption of alcohol can have severe physical consequences, but it is not a crime to consume it. This is matched in gambling. The state and its institutions often rely on lotteries
Lottery
A lottery is a form of gambling which involves the drawing of lots for a prize.Lottery is outlawed by some governments, while others endorse it to the extent of organizing a national or state lottery. It is common to find some degree of regulation of lottery by governments...
, raffle
Raffle
A raffle is a competition in which people obtain numbered tickets, each ticket having the chance of winning a prize. At a set time, the winners are drawn from a container holding a copy of every number...
s, and other legal forms of gambling for operating funds, whether directly or indirectly through the taxation of profits from casino
Casino
In modern English, a casino is a facility which houses and accommodates certain types of gambling activities. Casinos are most commonly built near or combined with hotels, restaurants, retail shopping, cruise ships or other tourist attractions...
s and other licensed outlets. Qualitatively, there is nothing to distinguish the forms of gambling deemed illegal. A side effect of turning too many people into criminals is that the concept of crime becomes blurred and genuine criminality becomes less unacceptable. If the key distinction between real crime and moral regulation is not made clearly, as more consensual activities become crimes, ordinary citizens are criminalized for tax-evasion, illegal downloading, and other voluntary rule-breaking. A further perceptual problem emerges when laws remain in force but are obviously not enforced, i.e. the police reflect the consensus view that the activity should not be a crime. Alternatively, if the activities prohibited are consensual and committed in private, this offers incentives to the organizers to offer bribes
Bribery
Bribery, a form of corruption, is an act implying money or gift giving that alters the behavior of the recipient. Bribery constitutes a crime and is defined by Black's Law Dictionary as the offering, giving, receiving, or soliciting of any item of value to influence the actions of an official or...
in exchange for diverting enforcement resources or to overlooking discovered activity, thereby encouraging political
Political corruption
Political corruption is the use of legislated powers by government officials for illegitimate private gain. Misuse of government power for other purposes, such as repression of political opponents and general police brutality, is not considered political corruption. Neither are illegal acts by...
and police corruption
Police corruption
Police corruption is a specific form of police misconduct designed to obtain financial benefits, other personal gain, or career advancement for a police officer or officers in exchange for not pursuing, or selectively pursuing, an investigation or arrest....
. Thus, any deterrent message that the state might wish to send is distorted or lost.
More generally, political parties find it easier to talk dismissively about crimes if they are classified as victimless because their abolition or amendment looks to have fewer economic
Economics
Economics is the social science that analyzes the production, distribution, and consumption of goods and services. The term economics comes from the Ancient Greek from + , hence "rules of the house"...
and political costs, i.e. the use of the word "victimless" implies that there are no injuries caused by these crimes (Robertson 1989:125) and, if that is true, then there is no need to create or retain the criminal offences. This may reflect a limited form of reality that, in the so-called "victimless crimes", there are no immediate victims to make police reports and those who engage in the given behaviour regard the law as inappropriate, not themselves. This has two consequences:
- because these crimes often take place in private, comprehensive law enforcement (often including entrapmentEntrapmentIn criminal law, entrapment is conduct by a law enforcement agent inducing a person to commit an offense that the person would otherwise have been unlikely to commit. In many jurisdictions, entrapment is a possible defense against criminal liability...
and the use of agent provocateurAgent provocateurTraditionally, an agent provocateur is a person employed by the police or other entity to act undercover to entice or provoke another person to commit an illegal act...
s) would consume an enormous amount of resources. It is therefore convenient for the law enforcement agencies to classify a crime as victimless because that is used as a justification for devoting fewer resources as against crimes where there are "real" victims to protect; and - these crimes usually involve something desirable where large profits can be made, e.g. drugs or sex.
Why criminalize?
Criminalization is intended as a pre-emptive, harm-reduction device, using the threat of punishment as a deterrentDeterrence (legal)
Deterrence is the use of punishment as a threat to deter people from committing a crime. Deterrence is often contrasted with retributivism, which holds that punishment is a necessary consequence of a crime and should be calculated based on the gravity of the wrong done.- Categories :Deterrence can...
to those proposing to engage in the behaviour causing harm. The state becomes involved because the costs of not criminalizing (i.e. allowing the harms to continue unabated) outweigh the costs of criminalizing it (i.e. restricting individual liberty and so minimising harm to others). The process of criminalization should be controlled by the state because:
- Victims or witnesses of crimes might be deterred from taking any action if they fear retaliation. Even in policed societies, fear may inhibit reporting or co-operation in a trial.
- The victims may only want compensation for the injuries suffered, while being indifferent to the more general need for deterrence: see Polinsky & Shavell (1997) on the fundamental divergence between the private and the social motivation for using the legal system.
- Even if the victims recognize that they are victims, they may not have the resources to investigate and seek legal redress for the injuries suffered: the enforcers formally appointed by the state have the expertise and the resources.
- Victims do not have economies of scale to administer a penal system, let alone collect any fines levied by a court (see Polinsky (1980) on the enforcement of fines). But Garoupa & Klerman (2002) warn that a rent-seeking government's primary motivation is to maximize revenue and so, if offenders have sufficient wealth, a rent-seeking government is more aggressive than a social-welfareSocial welfare functionIn economics, a social welfare function is a real-valued function that ranks conceivable social states from lowest to highest. Inputs of the function include any variables considered to affect the economic welfare of a society...
-maximizing government in enforcing laws against minor crimes (usually with a fixed penalty such as parking and routine traffic violations), but more lax in enforcing laws against major crimes.
The hidden crime factor
Because most of these crimes take place in private or with some degree of secrecy, it is difficult to establish the true extent of the crime. The "victims" are not going to report it and arrest statistics are unreliable indicators of prevalence, often varying in line with local political pressure to "do something" about a local problem rather than reflecting the true incidence of criminal activity. In addition to the issue of police resources and commitment, many aspects of these activities are controlled by organized crimeOrganized crime
Organized crime or criminal organizations are transnational, national, or local groupings of highly centralized enterprises run by criminals for the purpose of engaging in illegal activity, most commonly for monetary profit. Some criminal organizations, such as terrorist organizations, are...
and are therefore more likely to remain hidden. These factors are used to argue for decriminalization. Low or falling arrest statistics are used to assert that the incidence of the relevant crimes is low or now under control. Alternatively, keeping some of these "vices" as crimes simply keeps organized crime in business.
Decriminalization of public order crimes
Maguire and Radosh (1999: 146/7) accept that the public order crimes that cause the most controversy are directly related to the current perceptions of morality. To assert that the shades of behaviour represented by such "crimes" should be retained or decriminalized ignores the range of arguments that can be mustered on both sides, but the most fundamental question remains whether the government has the right to enforce laws prohibiting private behaviour.Arguments in favor of decriminalization
Those who favor decriminalization or legalization contend that government should be concerned with matters affecting the common good, and not seek to regulate morality at an individual level. Indeed, the fact that the majority ignore many of the laws, say on drug-taking, in countries founded on democraticDemocracy
Democracy is generally defined as a form of government in which all adult citizens have an equal say in the decisions that affect their lives. Ideally, this includes equal participation in the proposal, development and passage of legislation into law...
principles should encourage the governments elected by those majorities to repeal the laws. Failure to do so simply undermines respect for all laws, including those laws that should, and, indeed, must be followed. Indeed, when considering the range of activities prohibited, the practical policing of all these crimes would require the creation of a police state
Police state
A police state is one in which the government exercises rigid and repressive controls over the social, economic and political life of the population...
intruding into every aspect of the peoples' lives, no matter how private
Privacy
Privacy is the ability of an individual or group to seclude themselves or information about themselves and thereby reveal themselves selectively...
. It is unlikely that this application of power
Power (sociology)
Power is a measurement of an entity's ability to control its environment, including the behavior of other entities. The term authority is often used for power perceived as legitimate by the social structure. Power can be seen as evil or unjust, but the exercise of power is accepted as endemic to...
would be accepted even if history showed such high-profile enforcement to be effective. Prohibition
Prohibition
Prohibition of alcohol, often referred to simply as prohibition, is the practice of prohibiting the manufacture, transportation, import, export, sale, and consumption of alcohol and alcoholic beverages. The term can also apply to the periods in the histories of the countries during which the...
did not prevent the consumption of alcohol, and the present War on Drugs
War on Drugs
The War on Drugs is a campaign of prohibition and foreign military aid and military intervention being undertaken by the United States government, with the assistance of participating countries, intended to both define and reduce the illegal drug trade...
is expensive and ineffective. Those who favor decriminalization also point to experience in those countries which permit activities such as recreational drug use. There is clear evidence of lower levels of substance abuse and disruptive behavior.
- The presence of public order crimes encourages a climate of general disrespect for the law. Many individuals choose to violate public order laws, because they are easily violable, and there is no victim to complain. This encourages disrespect for the law, including disrespect for laws involving crimes with victims.
- To criminalize behavior that harms no other or society violates individual freedom and the human/natural rights of the individual. The right of the individual to do what they will, so long as they harm no other, or society as a whole, is a generally accepted principle within free and democratic societies ; criminalization of acts that others feel are immoral, but are not clearly proven to be harmful, is generally violative of that principle; although exceptions may—and do—apply. (For example, the simple possession of child pornographyChild pornographyChild pornography refers to images or films and, in some cases, writings depicting sexually explicit activities involving a child...
or engaging in animal cruelty is criminal, in most civilized nations; however, there is no direct victim (except the animal, whose rights are not cognizable by law); the reason for its criminalization is the "bad tendency" of these acts; persons who derive pleasure from acts such as these often have depraved desires—it can be inferred that people who abuse animals, rarely stop there—and that people who possess child pornography will seek more than just mere depictions.) - The cost of enforcing public order crimes is too high to individual and societal freedom, and will inevitably result in coercion, force, brutality, usurpation of the democratic process, the development of a carceral stateCarceral stateA Carceral archipelago refers to French social theorist Michel Foucault's work on surveillance systems and their technologies over modern societies and its practice of social control and discipline over its population in all areas of social life.Taken from his classic work Discipline and punish...
, and finally, tyranny. Due to public order crimes not having a victim, someone aside from a victim has to be used to report public order crimes, and someone other than the sovereign people itself has to be delegated to enforce the public order laws (for examples of direct popular enforcement of laws, see hue and cryHue and cryIn common law, a hue and cry is a process by which bystanders are summoned to assist in the apprehension of a criminal who has been witnessed in the act of committing a crime.By the Statute of Winchester of 1285, 13 Edw. I cc...
, posse comitatusPosse Comitatus ActThe Posse Comitatus Act is an often misunderstood and misquoted United States federal law passed on June 18, 1878, after the end of Reconstruction. Its intent was to limit the powers of local governments and law enforcement agencies from using federal military personnel to enforce the laws of...
, and the last vestige of democratic law enforcement today, the juryJuryA jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
). This results in the development of an apparatus of coercion, a class of "law enforcers" within society, but separate from society, in that they are tasked with enforcing laws upon the people, rather than the people enforcing their own law. This inevitably results in violations of individual freedom, as this class of "law enforcers" seeks more and more power, and turns to more and more coercive means. - Public order crimes often pertain to behavior engaged in especially by discernible classes of individuals within society (racial minorities, women, youth, poor people), and result in the criminalization or stigmatization of those classes, as well as resentment from those classes against the laws, against the government, or against society.
- Public order crimes are often selectively prosecuted. This creates or reinforces class, gender, or race based criminalization or stigmatization. It can also facilitate political persecution.
- Public enforcement of morality will inevitably lead to individuals developing no moral compass of their own, instead resulting in external restraint substituting for internal restraint, and, thus, greater immorality, deviance, and societal decadence.
Arguments against decriminalization
Those who oppose decriminalization believe that the morality of individuals collectively affects the good of the society and, without enforcement, the society will be damaged and lead to decadence. They believe that law shapes morality and builds a national character. If laws are not enforced, that is not the fault of the law. If people knew that they were likely to be arrested, they would modify their behavior. That current laws criminalizing theft do not deter thieves is not an argument for decriminalizing theft (although theft is not in any way a victimless crime). Rather it is an argument in favor of devoting more resources into enforcement so that there is greater certainty of arrest and punishment. Thus, in public order crimes, it is simply a lack of priority in current enforcement strategies that encourages such widespread public disobedience which, in all likelihood, would increase if the behavior was to be decriminalized.Specific examples
Meier and Geis (1997) contrast the view that prostitution, drugs, and homosexuality are crimes without victims, with the view that the participants involved are victims without crimes. The use of the term "public order crime" grew out of the research to test the hypothesis underlying the term "victimless crime". So-called victimless crimes or crimes without victims were tested to determine whether a case could be argued that the behaviour produced harmful consequences for innocent people (p19) recognising that there was substantial disagreement both about the degree of culpabilityCulpability
Culpability descends from the Latin concept of fault . The concept of culpability is intimately tied up with notions of agency, freedom and free will...
inherent in the behaviour and the proper role for the law. Consequently, the effectiveness and scope of the law has proved limited, both creating and solving problems. The following are examples of the research findings used to construct arguments that there are victims. It is accepted that there are other arguments that many consider equally convincing (as an example).
Prostitution
- For a full discussion from a criminology perspective, see Prostitution (criminology)
Drugs
The use of drugs for religious and recreational purposes is historically verified among a wide range of cultures. In more modern times, Inciardi (1992: 1–17) reports that the use of opiumOpium
Opium is the dried latex obtained from the opium poppy . Opium contains up to 12% morphine, an alkaloid, which is frequently processed chemically to produce heroin for the illegal drug trade. The latex also includes codeine and non-narcotic alkaloids such as papaverine, thebaine and noscapine...
, cocaine
Cocaine
Cocaine is a crystalline tropane alkaloid that is obtained from the leaves of the coca plant. The name comes from "coca" in addition to the alkaloid suffix -ine, forming cocaine. It is a stimulant of the central nervous system, an appetite suppressant, and a topical anesthetic...
, and, later, morphine
Morphine
Morphine is a potent opiate analgesic medication and is considered to be the prototypical opioid. It was first isolated in 1804 by Friedrich Sertürner, first distributed by same in 1817, and first commercially sold by Merck in 1827, which at the time was a single small chemists' shop. It was more...
were common ingredients of patent medicine
Patent medicine
Patent medicine refers to medical compounds of questionable effectiveness sold under a variety of names and labels. The term "patent medicine" is somewhat of a misnomer because, in most cases, although many of the products were trademarked, they were never patented...
s, and "opium den
Opium den
An opium den was an establishment where opium was sold and smoked. Opium dens were prevalent in many parts of the world in the 19th century, most notably China, Southeast Asia, North America and France...
s" were not uncommon in the larger urban areas. Extracts from the coca leaf were included in the original Coca-Cola
Coca-Cola
Coca-Cola is a carbonated soft drink sold in stores, restaurants, and vending machines in more than 200 countries. It is produced by The Coca-Cola Company of Atlanta, Georgia, and is often referred to simply as Coke...
and, in 1900, heroin was promoted as a cough medication and a treatment for lung diseases. But problems flowing from addiction led many to perceive the drug element of medications to be morally destructive. In the United States, the Supreme Court decisions of Webb et al. v U.S. 249 U.S. 96 (1919) http://www.druglibrary.org/SCHAFFER/History/webb.html and U.S. v Behrman 258 U.S. 280 (1922) http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=258&invol=280&friend=nytimes drove the use of narcotics underground and consolidated their criminal status.
In the terms adopted by Schur (1965), drug dealing is now victimless because neither the buyer nor the seller is likely to report it. However, many criminologist argue that there are victims . The consumption of some drugs can damage the health of users and, in some cases, cause death through overdose because substitution or poor quality, although this potential for harm may be operationally indistinct from the potentials for harm associated with other noncriminal behaviors, such as driving a car while tired or over-consumption of healthy foods. Some argue that if drugs were available legally, they would be less harmful (see the drug policy of the Netherlands
Drug policy of the Netherlands
The drug policy of the Netherlands officially has four major objectives:# To prevent recreational drug use and to treat and rehabilitate recreational drug users.# To reduce harm to users....
). When drugs are illegal, the price is higher, and maintaining the habit takes the money that would otherwise be spent on food, shelter, and clothing. The resultant neglect is a contributory factor to the addict's physical deterioration. In Australia, Walker (1991) finds a strong link between substance abuse and crime. In general, making drugs illegal results in an exponential increase in their price so that addicts must indulge in theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
, robbery
Robbery
Robbery is the crime of taking or attempting to take something of value by force or threat of force or by putting the victim in fear. At common law, robbery is defined as taking the property of another, with the intent to permanently deprive the person of that property, by means of force or fear....
, and burglary
Burglary
Burglary is a crime, the essence of which is illicit entry into a building for the purposes of committing an offense. Usually that offense will be theft, but most jurisdictions specify others which fall within the ambit of burglary...
to support their habits. Those people who experience those crimes are indirect victims of the drug sale. The need to fund addiction also drives some into distribution where they are more prone to violent attack and murder. These findings are matched elsewhere. Meier and Geis (1997) confirm that drug dealing is an area where victims are third parties who experience harm only indirectly through, say, losses from drug-related crime
Drug-Related Crime
In the United States, Illegal drugs are related to crime in multiple ways. Most directly, it is a crime to use, possess, manufacture, or distribute drugs classified as having a potential for abuse...
, and the costs of enforcing drug laws and of treating addiction, and the public health costs for treating illness and disease consequent on the addiction, e.g. HIV
HIV
Human immunodeficiency virus is a lentivirus that causes acquired immunodeficiency syndrome , a condition in humans in which progressive failure of the immune system allows life-threatening opportunistic infections and cancers to thrive...
infection through using the same needles. In Australia, for example, the National Campaign against Drug Abuse (see Collins & Lapsley 1991) gives a figure of just over $1.2 billion for total costs of the abuse of illicit drugs in Australia in 1988, including treatment of drug-related illness, accidents resulting from drug use/misuse, loss of productivity due to absenteeism, premature death, property crime and damage, and excluding justice system costs. Conklin (1997: 100) reports the cost of illegal drug use in the U.S. in 1989 at $60 billion a year, a 20% increase over the estimate in 1985. The rise in cost to the state can only be met out of tax revenue, but the burden is not shared equally. Income actually spent on drugs is displaced from purchases that would otherwise have generated sales tax and income tax revenue. Similarly, the substantial profits made by the dealers is not taxed. Thus, the citizens who declare income for tax purposes must pay more to offset the cost of non-capture of drug revenue in their society.
As with prostitution, crime related to drug dealing also affects the amenity of a neighbourhood, destroying property values and causing the flight of the middle class to the "safer" suburbs. If the police do intervene, they may alienate law-abiding community members who are stopped and questioned, and only displace the drug dealing indoors, thus making it more resistant to police interventions. Police may also use their power to extract rents from the drug selling community. Further, Sampson (2002) comments that because intensive police enforcement is by its very nature temporary, the impact is often only short-term and dependent on the resiliency of the market and the buyers which has been shown to be strong. Some officers have argued that intensive enforcement shows the community that the police care about the problem; however, some of the unintended effects may, in fact, have the opposite result. For a more general exposition, see arguments for and against drug prohibition
Arguments for and against drug prohibition
Arguments about the prohibition of drugs, and over drug policy reform, are subjects of considerable controversy. The following is a presentation of major drug policy arguments, including those for drug law enforcement on one side of the debate, and arguments for drug law reform on the other.-...
.
See also
- Drug-related crimeDrug-Related CrimeIn the United States, Illegal drugs are related to crime in multiple ways. Most directly, it is a crime to use, possess, manufacture, or distribute drugs classified as having a potential for abuse...
- Public Order Act 1986Public Order Act 1986The Public Order Act 1986 is an Act of the Parliament of the United Kingdom. It creates a number of public order offences. They replace similar common law offences and parts of the Public Order Act 1936...
- Victimless crime (political philosophy)Victimless crime (political philosophy)A victimless crime is a term used to refer to actions that have been ruled illegal but do not directly violate or threaten the rights of another individual. It often involves consensual acts in which two or more persons agree to commit a criminal offence in which no other person is involved...
- Sumptuary
- Anti-Social Behaviour OrderAnti-Social Behaviour OrderAn Anti-Social Behaviour Order or ASBO is a civil order made against a person who has been shown, on the balance of evidence, to have engaged in anti-social behaviour. The orders, introduced in the United Kingdom by Prime Minister Tony Blair in 1998, were designed to correct minor incidents that...
- Fixing Broken WindowsFixing Broken WindowsThe broken windows theory is a criminological theory of the norm setting and signaling effect of urban disorder and vandalism on additional crime and anti-social behavior...
- Signal crimeSignal crimeSignal crime is a concept in reassurance policing. It centres around the theory that certain crimes or incidents of anti-social behaviour may act as a "signal" to a community that they are at risk. Examples commonly given are vandalism of phone boxes and bus shelters, and people dealing drugs...