October 28, 2021

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Prohibiting Harmless Consensual Or Self-Regarding Acts By Adults Is Bad Law And Policy

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, SEO, Wordpress Support & Insurance, Mortgage, Loans, Legal, Etc BlogsIn 2019, in one of this country’s largest cities an amazing (but unintended) social experiment took place that should demand more of our attention. It began with the firing of New York City police officer Daniel Pantaleo. If you recall, Pantaleo was fired after an internal disciplinary hearing for killing Eric Garner by choking him to death. In response to the firing, the head of the police union asked for officers to engage in what can only be described as a work slowdown. The likely intent of the slowdown was to demonstrate that if cops were not out aggressively patrolling the streets, crime would rise, and life would become intolerable. You hear this “thin blue line” rhetoric often from police apologists who portray cops as the slim barrier preventing society from plunging into absolute chaos.

But here is the remarkable thing, although cops stopped doing their jobs in 2019 and arrests plummeted, crime, including violent crime, also plummeted. What’s even more remarkable is that this was not the first time something like this happened. As Scott Shackford explained in Reason:

Back in December 2014, after two officers were killed in the line of duty — and after outrage by citizens boiled over again after a grand jury declined to indict Pantaleo — NYPD officers slowed down arrests. Petty crime enforcement came to a near standstill.

A study years later analyzing that slowdown in 2014–2015 found that major crime [complaints] actually dropped in the Big Apple during that time frame[.]

These results should overturn many of the dogmas associated with the “thin blue line” narrative. It should also call into question the degree to which law enforcement is involved in the everyday lives of Americans. Yet, despite the abundance of evidence that overcriminalization is unnecessary and destructive, local, state, and federal governments just can’t seem to let go.

For example, sticking with New York City, Manhattan District Attorney Cy Vance recently announced that his office would no longer prosecute sex workers but will continue to prosecute their customers. This strategy is often referred to as the “Nordic Model,” and its proponents argue it is the only sensible path to target the demand that fuels prostitution while not criminalizing sex workers who are wrongly being treated as criminals. But if treating sex workers as criminals is wrong why is criminalizing their customers still desirable?

Of course, no serious person is arguing that underage sex work should be permitted or that forcing individuals to perform sex work should be legalized. But I have not seen anyone offer a legitimate reason for why two adults cannot agree to perform a consensual sexual act for money that does not harm anyone. Or what benefit is derived by society in criminalizing sex acts made in such commercial contexts. Meanwhile, legalizing sex work brings undeniable benefits as it gets rid of unregulated black markets, allowing for greater transparency and regulation of harms where they exist.

But even if the act is personally harmful but does not harm anyone else (otherwise known as a self-regarding act) there stands little reason for state intervention. In fact, state intervention can result in more harm than the self-regarding act being prohibited. But try telling that to Joe Biden. Last week, President Biden announced his administration was planning to propose a ban on menthol cigarettes. The move is meant to correct the injustice of decades of aggressive marketing of menthol cigarettes to Black people.

Although any sane person can agree that the aggressive marketing of a harmful product presents moral objections, criminalizing the product, particularly a drug product, presents serious hazards. Think about it this way, the reason Pantaleo came into contact with Garner was over selling loose cigarettes. Do we really want to create more reasons for such confrontations? Biden does, and that’s a tragedy.


, SEO, Wordpress Support & Insurance, Mortgage, Loans, Legal, Etc BlogsTyler Broker’s work has been published in the Gonzaga Law Review, the Albany Law Review, and the University of Memphis Law Review. Feel free to email him or follow him on Twitter to discuss his column.

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