AN OVERVIEW

(The Only Chapter In This Over-Long Book You Need To Read)

Why doesn't everybody

leave everybody else

the hell alone?

JIMMY DURANTE

THIS BOOK IS BASED on a single idea: You should be allowed to do whatever you want with your own person and property, as long as you don't physically harm the person or property of a non-consenting other.

Simple. Seemingly guaranteed to us by that remarkable document known as the United States Constitution and its even more remarkable Bill of Rights. And yet, it's not the way things are.

Roughly half of the arrests and court cases in the United States each year involve consensual crimes—actions that are against the law, but directly harm no one's person or property except, possibly, the "criminal's."

More than 750,000 people are in jail right now because of something they did, something that did not physically harm the person or property of another. In addition, more than 3,000,000 people are on parole or probation for consensual crimes. Further, more than 4,000,000 people are arrested each year for doing something that hurts no one but, potentially, themselves.

The injustice doesn't end there, of course. Throwing people in jail is the extreme. If you can throw people in jail for something, you can fire them for the same reason. You can evict them from their apartments. You can deny them credit. You can expel them from schools. You can strip away their civil rights, confiscate their property, and destroy their lives—just because they're different.

At what point does behavior become so unacceptable that we should tell our government to lock people up? The answer, as explored in this book: We lock people up only when they physically harm the person or property of a non-consenting other.

No loss by flood and lightning,

no destruction of cities and temples

by hostile forces of nature,

has deprived man

of so many noble lives and impulses

as those which his intolerance

has destroyed.

HELEN KELLER

 
Contained in this answer is an important assumption: after a certain age, our persons and property belong to us.

Yes, if we harm ourselves it may emotionally harm others. That's unfortunate, but not grounds for putting us in jail. If it were, every time we stopped dating person A in order to date person B, we would run the risk of going to jail for hurting person A. If person B were hurt by our being put in jail, person A could be put in jail for hurting person B. This would, of course, hurt person A's mother, who would see to it that person B would go to jail. Eventually, we'd all be in jail.

As silly as that situation sounds, it is precisely the logic used by some to protect the idea of consensual crimes.

Arguments in favor of laws against any consensual activity are usually variations of "It's not moral!" And where does the objector's sense of morality come from? For the most part, his or her religion. Some claim "cultural values" as the basis of morality, but where does this set of cultural values come from? The sharing of a similar religion.

To a large degree, we have created a legal system that is, to quote Alan Watts, "clergymen with billy clubs." Says Watts:

The police have enough work to keep them busy regulating automobile traffic, preventing robberies and crimes of violence and helping

lost children and little old ladies find their way home. As long as the police confine themselves to such activities they are respected

friends of the public. But as soon as they begin inquiring into people's private morals, they become nothing more than armed clergymen.

That which we call sin in others

is experiment for us.

RALPH WALDO EMERSON

Please don't think I'm against religion. I'm not. Individual morality based on religious or spiritual beliefs can be invaluable. It can be an excellent guide for one's own life. But religious belief—especially someone else's—is a terrible foundation for deciding who does and does not go to jail.

If people physically harm someone else's person or property, they go to jail. If not, they don't. Every other behavior we would like them to follow (for their own good or our own comfort) must be achieved through education or persuasion—not force of law.

In exchange for extending this tolerance to others, we know that unless we physically harm another's person or property, we will not be put in jail. This assurance gives us the boundaries within which we can live our lives. It allows us to explore, to take risks, and—as long as we risk only our own person and property—we know that at least one risk we won't be taking is the risk of being thrown in jail.

With such freedom, of course, comes responsibility. As we take risks, bad things will occasionally happen—that's why they're called risks. At that point, we must learn to shrug and say, "That's life," not, "Why isn't there a law against this? Why isn't the government protecting me from every possible negative occurrence I might get myself into?" When we, as adults, consent to do something—unless we are deceived—we become responsible for the outcome.

We must become involved, educated, aware consumers—and teach our children to be the same. Just because some activity is available, and just because we won't be thrown in jail for doing it, doesn't mean it is necessarily harmless.

It has been my experience

that folks who have no vices

have very few virtues.

ABRAHAM LINCOLN

If it's not the government's job to protect us from our own actions (and whoever said the government is equipped to do so when the government can't seem to buy a toilet seat for less than $600?), then the job returns to where it always has been: with us.

Consensual crimes are sometimes known as victimless crimes because it's hard to find a clear-cut victim. The term victimless crimes, however, has been so thoroughly misused in recent years that it has become almost meaningless. One criminal after another has claimed that his or hers was a victimless crime, while one self-appointed moralist after another has claimed that truly victimless crimes do, indeed, have victims. It seems easier to use the lesser-known phrase consensual crimes than to rehabilitate the better-known phrase victimless crimes.

Please keep in mind that I am not advocating any of the consensual crimes. Some of them are harmful to the person doing them. Others are only potentially harmful to the doer. Still others are genetic orientations, while others are simply lifestyle choices.

No matter how harmful doing them may be to the doer, however, it makes no sense to put people in jail for doing things that do not physically harm the person or property of another. Further, the government has no right to put people in jail unless they do harm the person or property of another. The United States Constitution and its Bill of Rights—the "supreme law of the land"—prohibit it.

My definition of a free society

is a society where

it is safe to be unpopular.

ADLAI E. STEVENSON

People often use the word legal too loosely. They fail to give sufficient thought as to what legal and illegal really mean. When we say a given activity should be illegal, what we're saying is that if someone takes part in that activity, we should put that person in jail. When it comes to consensual crimes, however, when people say, "It should be illegal," what they usually mean is, "That's not right," "That's not a good idea," or "That's immoral." When using the word illegal, it's important to remember how forceful the force of law truly is. We are all entitled, of course, to our opinions about certain activities, but do we really want to lock up people who don't go along with our opinions?

We all have the right to be different. The laws against consensual activities take away that right. If we let anyone lose his or her freedom without just cause, we have all lost our freedom.

With this thought in mind, here are the most popular consensual crimes: gambling, recreational drug use, religious and psychologically therapeutic drug use, prostitution, pornography and obscenity, violations of marriage (adultery, fornication, cohabitation, sodomy, bigamy, polygamy), homosexuality, regenerative drug use, unorthodox medical practices ("Quacks!"), unconventional religious practices ("Cults!"), unpopular political views ("Commies!"), suicide and assisted suicide, transvestitism, not using safety devices (such as motorcycle helmets and seat belts), public drunkenness, jaywalking, and loitering and vagrancy (as long as they don't become trespassing or disturbing the peace).

Even if you don't want to take part in any of the consensual crimes, working to remove the consensual crimes from the books has a trickle-down effect of tolerance, acceptance, and freedom for the things you do want to do. (This may be one trickle-down theory that actually works.)

We are so concerned to flatter

the majority that we lose sight

of how very often it is necessary,

in order to preserve freedom

for the minority,

let alone for the individual,

to face that majority down.

WILLIAM F. BUCKLEY, JR.

While exploring the extremes of social prejudice, we can explore our personal prejudices as well. I suggest that, when we want to put people in jail for what they do to their own person or property, our individual tolerance and compassion probably need a little exercise.

But this isn't just my idea. Here's how another person—a carpenter by training—put it:

Why do you look at the speck of sawdust in your brother's eye and pay no attention to the plank in your own eye? How can you say to your brother, "Brother, let me take the speck out of your eye," when you yourself fail to see the plank in your own eye? You hypocrite, first take the plank out of your eye, and then you will see clearly to remove the speck from your brother's eye.

That, of course, was said by Jesus of Nazareth, that dear misunderstood man many people use as the authority to "lock the bastards up."

The fact that we would find his idea so controversial 2,000 years later, and more than 200 years after we formed a government based on "life, liberty and the pursuit of happiness," shows how much work we have to do.

The government of the

United States

is not,

in any sense,

founded on the Christian religion.

GEORGE WASHINGTON

Treaty of Tripoli

1796

Here's the condensed list of reasons why having laws against consensual activities is not a good idea (each point has a chapter of its own later in the book):

It's un-American. America is based on personal freedom and on the strength of diversity, not on unnecessary limitation and slavish conformity. The American dream is that we are all free to live our lives as we see fit, providing we do not physically harm the person or property of another.

It's unconstitutional. The United States Constitution and its Bill of Rights clearly give us the right to pursue our lives without the forced intervention of moralists, do-gooders, and busybodies.

Laws against consensual activities violate the separation of church and state. The Constitution guarantees that not only can we freely practice the religion of our choice, but also that the government will not impose religion upon us. Almost all the arguments in favor of maintaining laws against consensual activities have a religious foundation. The government is then asked to enforce these religious beliefs by arresting the nonbelievers and putting them in jail.

Laws against consensual activities are opposed to the principles of private property, free enterprise, capitalism, and the open market. If everything thus far has sounded hopelessly liberal, here's a nice conservative argument: Our economic system is based on the sanctity of private property. What you own is your own business; you can give it away, trade it, or sell it for a profit or a loss—none of which is the government's business. This is the system known as capitalism. We recently fought (and won) a forty-five-year cold-and-hot war against communism to maintain it. For the government to say that certain things cannot be owned, bought, given away, traded, or sold is a direct violation of both the sanctity of private property and the fundamental principles of capitalism.

If we've learned anything

in the past quarter century,

it is that we cannot

federalize virtue.

PRESIDENT GEORGE BUSH

1991

It's expensive. We're spending more than fifty billion dollars per year catching and jailing consensual "criminals." In addition, we're losing at least an additional $150 billion in potential tax revenues. In other words, each man, woman, and child in this country is paying $800 per year to destroy the lives of 5,000,000 fellow citizens. If we did nothing else but declare consensual crimes legal, the $200,000,000,000 we'd save each year could wipe out the national debt in twenty years, or we could reduce personal income tax by one-third. Another economic high point: moving the underground economy of consensual crimes aboveground would create 6,000,000 tax-paying jobs. And then there's the matter of interest. The $50 billion we spend jailing consensual "criminals" is not just spent; it's borrowed. The national debt grows larger. Six percent interest compounded over thirty years adds $250 billion to that $50 billion figure—a dandy legacy for our progeny.

Lives are destroyed. Yes, by taking part in consensual crimes, people may destroy their own lives. This is unfortunate, but that's their business. The problem with making consensual activities crimes, however, is that the government moves in and by force destroys the life of the consensual "criminal." A single arrest and conviction, even without a jail sentence, can permanently affect one's ability to get employment, housing, credit, education, and insurance. In addition, there is the emotional, financial, and physical trauma of arrest, trial, and conviction. If any significant amount of jail time is added to this governmental torture, an individual's life is almost certainly ruined.

Consensual crimes encourage real crimes. Because consensual crimes are against the law, taking part in them costs significantly more than is necessary. In order to pay these artificially inflated prices, some of those who take part in consensual crimes go out and commit real crimes: mugging, robbery, burglary, forgery, embezzlement, and fraud. If the consensual activities were cheap, real crimes would decrease significantly. In addition, to someone who is regularly breaking a law against a consensual activity, all laws may start to seem unimportant.

All men are frauds.

The only difference

between them is that

some admit it.

I myself deny it.

H. L. MENCKEN

Consensual crimes corrupt law enforcement. The law enforcement system is based on a perpetrator and a victim. With consensual crimes, perpetrator and victim are the same person. Whom are the police supposed to protect? Theoretically, they arrest the perpetrator to protect the victim. With a consensual crime, when the perpetrator goes to jail, the victim goes too. It's a sham that demoralizes police, promotes disrespect for the law, and makes arresting real criminals more difficult. Asking the police to enforce a crime that does not have a clear-cut victim makes a travesty of law enforcement. It's sad that the laws against consensual activities have turned one of the true heroes of our society, the honest cop, into an endangered species.

The cops can't catch 'em; the courts can't handle 'em; the prisons can't hold 'em. As it is, the police are catching less than 20% of the real criminals—those who do harm the person or property of others. There is simply no way that the police can even make a dent in the practice of consensual crimes. Even if the police could catch all the consensual criminals, the courts couldn't possibly process them. The courts, already swamped with consensual crime cases, can't handle any more. Real criminals walk free every day to rape, rob, and murder again because the courts are so busy finding consensual criminals guilty of hurting no one but themselves. And even if the courts could process them, the prisons are already full; most are operating at more than 100% capacity. To free cells for consensual criminals, real criminals are put on the street every day.

The first thing to learn

in intercourse with others

is non-interference with their own

particular ways of being happy,

provided those ways do not assume

to interfere by violence with ours.

WILLIAM JAMES

Consensual crimes promote organized crime. Organized crime in America grew directly out of an earlier unsuccessful attempt to legislate morality: Prohibition. Whenever something is desired by tens of millions of people each day, there will be an organization to meet that desire. If fulfilling that desire is a crime, that organization will be organized crime. Operating outside the law as organized criminals do, they don't differentiate much between crimes with victims and crimes without victims. Further, the enormous amount of money at their disposal allows them to obtain volume discounts when buying police, prosecutors, witnesses, judges, juries, journalists, and politicians. And guess who finances some of those let's-get-tough-on-consensual-crime campaigns? You guessed it. Once consensual crimes are no longer crimes, organized crime is out of business.

Consensual crimes corrupt the freedom of the press. Reporting on consensual crimes has turned a good portion of the media into gossips, busybodies, and tattletales (The Hugh Grant Syndrome). With so much important investigation and reporting to be done concerning issues directly affecting the lives of individuals, the nation, and the world, should we be asking one of our most powerful assets—the free press—to report who's doing what, when, where, how, and how often with other consenting whom's?

Laws against consensual activities teach irresponsibility. If we maintain that it is the government's job to keep illegal anything that might do us harm, it implies that anything not illegal is harmless. This is certainly not the case.

There were seven times as many black women in prison as white women in 1994, and the proportion of black men incarcerated was eight times higher than that of white men. Almost 7% of all black men were incarcerated in 1994, compared with less than 1% of white men. Drug crimes played a major role in the prison population increase. LOS ANGELES TIMES December 4, 1995

Laws against consensual activities are too randomly enforced to be either a deterrent or fair. The laws against consensual activities provide almost no deterrent whatsoever. If the chances of being caught at something are only, say, one in ten million, that's hardly a deterrent. In fact, their very illegality sometimes makes consensual crimes fascinating, glamorous, and irresistible.

Laws against consensual activities discriminate against minorities and the poor. In selecting which consensual activities should and should not be crimes, the views of the poor and minorities are seldom considered. Therefore, many consensual activities that the mostly white, male, heterosexual, affluent, Christian lawmakers have deemed illegal do not necessarily reflect the preferences or experiences of minority groups. Further, the laws against consensual activities are not uniformly enforced—the poor and minorities, for a variety of reasons, tend to receive the brief end of the stick.

Problems sometimes associated with consensual activities cannot be solved while they're crimes. Some people take part in consensual crimes as a symptom of, or escape from, deeper problems. These problems are not easily addressed until we dispense with the irrational, illogical, and transparently inaccurate myth that participation in the currently illegal consensual activities is always wrong. It wasn't until after Prohibition, for example, that those who had real drinking problems could see, admit to, and do something about them. Maintaining the fallacy that participation in illegal consensual activities is always wrong keeps those for whom it is wrong from doing something constructive about it.

We have more important things to worry about. The short list of national and global problems more deserving of our precious resources includes: real crime (robbery, rape, murder—the chances are one in four that you or someone in your household will be "touched," as they say, by a violent crime this year), abducted children (more than 400,000 abducted children each year), insurance fraud (a $100-billion-per-year problem that adds from 10% to 30% to all insurance premiums), illiteracy (one in seven American adults is functionally illiterate; one in twenty cannot fill out a job application), poverty (14.2% of the population—35.7 million people—live below the poverty level; a good number of these are children), pollution (all the pending environmental disasters cannot be summed up in a single parenthesis), our addiction to foreign oil (the Gulf War should have been called the Gulf-Standard-Mobil War), terrorism (the bombing of the World Trade Center was, in reality, a terrorist warning: the next time it might be an atomic bomb), AIDS (by the year 2000, the largest number of newly HIV-infected people will be heterosexual women), supposedly government-regulated but not-really-regulated industries (the $500 billion savings and loan bailout is an obvious example), and last, but certainly not least, the national debt ($5 trillion, and growing faster than almost anything in this country other than intolerance).

Truth resides in every human heart,

and one has to search for it there,

and to be guided by truth

as one sees it.

But no one has a right

to coerce others to act according

to his own view of truth.

MOHANDAS K. GANDHI

It's hypocritical. To give but one obvious example: Cigarettes do more damage and cause roughly one hundred times the deaths of all of the consensual crimes combined. Each year, 500,000 people die as a direct result of smoking. And yet, cigarettes are perfectly legal, available everywhere, and heavily advertised; tobacco growers are government subsidized; and cigarette companies are free to use their influence on both politicians and the media (and, boy, do they ever). How can we tolerate such contradictions in this country? We are, as Thomas Wolfe pointed out, "making the world safe for hypocrisy."

The legitimate powers

of government

extend to such acts

as are only injurious to others.

THOMAS JEFFERSON

Laws against consensual activities create a society of fear, hatred, bigotry, oppression, and conformity; a culture opposed to personal expression, diversity, freedom, choice, and growth. The prosecution of consensual crimes "trickles down" into ostracizing, humiliating, and scorning people who do things that are not quite against the law—but probably should be. "They're different; therefore, they're bad" seems to be the motto for a large segment of our society. We are addicted to normalcy; even if it means we must lop off significant portions of ourselves, we must conform.

There's no need to accept the validity of all these arguments; the validity of any one is sufficient reason to wipe away all the laws against consensual activities.

In this book, we will explore each of the consensual crimes, asking not, "Is it good?" but, "Is it worth throwing someone in jail for?" We'll explore the prejudice about consensual crimes—the prejudices we have been conditioned to believe. You'll find that the number of lies within lies within lies is amazing.

Responsibility is the price of freedom. So is tolerance.

In the time it took you to read this overview, 342 persons were arrested for consensual crimes in the United States.