Pubdate: Thu, 04 Aug 2005
Source: Nashville Scene (TN)
Copyright: 2005 Nashville Scene.
Author: Roger Abramson
Bookmark: (McWilliams, Peter)
Bookmark: (Decrim/Legalization)
Bookmark: (Cannabis - Popular)
Bookmark: (Cannabis - Medicinal)


Why Prosecuting Victimless Crimes Is A Colossal Waste Of Time

Whenever I think of marijuana, I think about vomit, specifically, the
vomit of one Peter McWilliams, noted author of breezy self-help books
such as Life 101: Everything We Wish We Had Learned About Life in
School But Didn't and Do It! Let's Get Off Our Buts.

It's been five years since McWilliams died in the bathroom of his
California home. He was a victim of both AIDS and cancer, but neither
of those ultimately did the man in. No, on June 14, 2000, McWilliams
simply choked on his own vomit.

There are worse ways to go, certainly, but suffocating on your own
bile--in the bathtub no less--has got to be somewhere in the top 25.

The really disturbing thing, though, is that McWilliams' death was
completely preventable. McWilliams suffered from chronic nausea
brought on by the medications he had been taking for his illnesses,
and he discovered that smoking marijuana kept his food and meds down.
Fortunately for McWilliams, he lived in the state of California, where
a referendum legalized marijuana use for medicinal purposes in 1996.
Unfortunately, though, he also lived in the United States of America,
and our federal government does not recognize such an exception.

So it happened that in 1997 federal agents raided McWilliams' home and
charged him with violating federal drug laws. Adding insult to injury,
the judge in the case barred McWilliams from testifying to the reasons
for his marijuana use, compelling McWilliams, at this point a man
without any options, to cop a guilty plea. It was while he was
awaiting his ultimate sentence that he suffered yet another wave of
nausea and then choked to death.

One of the conditions of his bail, you see, was that he abstain from
smoking marijuana.

So he did. And so he died. Another victory in the war on drugs.

McWilliams' death might have passed relatively unnoticed but for the
fact that he had attained celebrity status in the years before his
illness. The self-help books were a major factor, but he also received
much acclaim for one of his last books, Ain't Nobody's Business If You
Do: The Absurdity of Consensual Crimes in Our Free Country, a
leave-us-the-hell-alone manifesto.

Thus his death made him an instant martyr to libertarians everywhere
and an ideal example of the price people pay when we use the
government to force them to live their lives the way we want them to.

The phrase "use the government" is key. I do not put the onus of
McWilliams' death on the shoulders of the government, as many do. It's
certainly true to say that the government denied McWilliams the very
thing that may have saved his life. But it misses the point.

We don't live under a monarchy or a dictatorship. We live in a
representative democracy: when the government does something, it does
so with the endorsement of a significant portion of the public.

The federal government may have pulled the trigger on Peter
McWilliams, but we--me, you, everyone--gave it the gun, the bullets
and the ultimate order to shoot. All because we get our knickers in a
wad over marijuana.

But we don't just stop there.

We also get worked up about alcohol, gambling and--everyone's
favorite--sex. And we urge our elected officials to pass laws to
police these activities. And they, in turn, knowing a worthwhile
political move, and getting little to no resistance from anyone on the
other side (the "let-us-smoke-drink-bet-and-screw coalition" is not
what you'd call the most cohesive political force), give police
agencies the power to do just that. So they do. Some people don't like

They'll raise the drinking age to 21. Do some folks think gambling is
a sin? Consider it banned.

Does the thought of men ogling naked women in strip clubs give people
the creeps?

They'll be happy to police that too.

This is why we seem to hear more about the Metro Police Department
busting up poker games than we do about their tracking down a missing
child. The missing child is just one person, and could be anywhere;
the enemies of vice are legion, and vice is everywhere. We can knock
Metro for its skewed priorities, but whose priorities are they really?
Theirs, or the public they answer to?

The time has long passed for us to get our policy priorities straight
by getting our government officials out of the business of policing
victimless crimes.

This is certainly not an original idea, I realize, but whenever I hear
it espoused, the argument is usually of the "no one should be able to
tell me what to do" variety, said in much the same tone a teenager
might use in reaction to a parent enforcing a curfew. Frankly, this
argument doesn't really do much for me. The truth is that--within
constitutional parameters--the government can in fact tell you what to
do and what not to do. That's its job.

The real argument to make has not to do with what the government can
or cannot do, but rather, with what the government should do even if
it could. We know that the government can ban marijuana use; the real
issue is whether doing that's a good idea. Think of it like doughnuts:
you could eat at Krispy Kreme everyday; that doesn't mean you should.
If you do, you'll end up fat, lumbering and largely ineffective in
your day-to-day existence.

Kind of like the government.

I'm neither a devil-may-care libertine nor an in-your-face moralist; I
therefore have no dog in this hunt. Truth be told, my life wouldn't
change very much if all the things we place in the category of "vice"
were banned outright, nor would it affect me much personally if
everything were legalized to the hilt. What I'm curious about is
whether using government resources to police these sorts of things is
really an effective thing to do or whether it's largely just a way to
make so many of us feel good about ourselves at the expense of both
the liberty of others, not to mention our pocketbooks. As you can
probably guess, I think it's the latter: an application of purely
personal standards thinly disguised as general promotion of the public
welfare. Some people may not have a problem with that. But I do, and
here are a few reasons why:

1. We apply thest standards arbitrarily.

Let's conduct a thought experiment. Alcohol consumption has been a
part of society for thousands of years, but let's suppose instead that
the alcohol consumption only occurred in a few obscure places in
ancient times, and that it wasn't until around the 19th century or so
that people started drinking beer, wine and liquor, in large part for
the medicinal effects they perceived to get from it. The popularity of
alcohol consumption then grew well into the 20th century as more
people began to drink more for social and recreational purposes.

Now, a question: how likely is it to you, if this were the real
history of alcoholic beverages, that the consumption of alcoholic
beverages would be a legal (if restricted) activity today?

If you answered something like "not bloody likely," you probably know
where I'm going with this. The pretend history of alcohol in the above
paragraph is actually, in a nutshell, the early history of marijuana.

Later, of course, in the mid-20th century, we decided to make
marijuana illegal, a state of affairs that remains to this day. But
alcohol consumption is perfectly legal.


Basically, it's all the result of a historical accident.

In the great morality wars, alcohol use, with its pedigree of
thousands of years, has essentially gotten grandfathered in to general
acceptance. It was already such a part of the fabric of American
society by the 20th century that it was impossible to stamp out, as
the Prohibition experiment made abundantly clear.

But marijuana had no such roots, so as its popularity began to grow,
it was easy to strangle in the cradle. This is just plain silly,
because marijuana and alcohol induce similar levels of impairment. If
anything, alcohol has a more detrimental effect on judgment and is a
far greater contributor to problems like domestic violence and traffic

Is marijuana addictive?

I don't know, but I would guess it probably is for some

Of course, so is alcohol.

Is it a "gateway" for other drugs? Again, probably for some. But it
doesn't take much to jump from a Budweiser to harder stuff either.

Bottom line: there just happens to be a bigger political constituency
for alcohol than there is for marijuana. Ergo, alcohol's OK while
marijuana's not. Completely arbitrary.

2. It defines criminality down.

Criminalizing bad behavior had dramatic consequences. This is a
concept that a lot of people have trouble comprehending, so follow me
closely. It's one thing to believe that a person shouldn't, say,
gamble money away at a poker game. Their time might be better spent
doing other things--spending quality time with their families or
reading a good book--or maybe their money might be better spent
somewhere else. Those are certainly reasonable beliefs worth sharing
with others to convince them against gambling their money away. That's
all fine.

It's another thing altogether to vest the government with the power to
enforce your beliefs by putting those beliefs into law. By doing that,
you give the government--via its policing agencies--the full authority
to punish a person who does something you don't happen to like, even
though that activity doesn't really affect you personally.

It's one hell of a carte blanche.

Just ask the guys busted at 3415 West End Avenue amid a regular
everyday poker game back in February. There they were, sitting around
a table playing out a hand, and in comes the Metro Police Department,
search warrants in hand, acting like they'd just discovered Jesse
James' lair. Six people were issued citations for gambling. One guy,
the ringleader of the group, was expected to be charged with--get
this--"aggravated gambling." What, pray tell, is "aggravated
gambling"? Whatever it is, it's a felony.

Yup--a felony.

You know, like murder, rape, kidnapping--those kinds of things.

This guy is apparently the Paul Reid of the local gambling world.

Soon after this takedown of the West End Seven, the Metro Police
Department helpfully posted a media release on its website about the
bust, complete with pictures (see
You should check it out for yourself and see what kind of social
menace we had on our hands. It doesn't even look like they were
drinking alcohol.

All you see are Mountain Dews and bottled water.

Oh, and you know how the police made it seem like this was some kind
of high-stakes poker tournament--you know, like the one Tony Soprano
sponsored in that episode?

Well, this one wasn't quite as rich. The total amount of money seized
was all of $3,825. Cripes, people blow that in one hand on ESPN.

Take a look at these guys and ask yourself seriously: are these
criminals? Are these really the sorts of people you think of as you
lock your doors at night before bed? The sorts of people you hope to
God your child never comes into contact with? The sorts of people who
should have to answer "yes" every time they fill out a job application
that asks them whether they've ever been charged with a crime?

I certainly don't think so, and I don't think that most reasonable
people would think so, but by definition they are now. And we made
them that way.

3. Prohibitionists don't seem to understand the very thing they're
trying to prohibit.

Back in 1999, a white staffer for Washington, D.C., Mayor Anthony
Williams was forced to resign because he used the word "niggardly" in
a meeting. Washington is a majority African American city, and many
people took great offense to the term. It sounded so much like that
other word that it was assumed to be a racial slur. There was one
slight problem: "niggardly" is a perfectly acceptable word with no
racial connotations whatsoever. (It means stingy.) Never mind: it
simply sounded bad, and that was enough.

I think about that incident whenever I hear someone getting worked up
about some supposedly naughty activity or another and it becomes
pretty clear that they have no idea what's actually going on, but
don't want to let facts stand in the way of their righteous
indignation. It happens in discussions about drugs a lot, but it's the
sex stuff where it's most apparent.

Some people hear anything with the word "sex" in it and they just
assume the worst.

Examples of this nonsense are everywhere, but I think my current
favorite is the "sex toy" ban in Alabama. That's right.

Since 1998, it has been illegal to sell sex toys within the borders of
our neighbor to the south.

There are exceptions to this rule, including the sale of these things
"for a bona fide medical, scientific, educational, legislative,
judicial or law enforcement purpose." Thus, it appears that Alabama
legislators, judges and police officers can use vibrators, but regular
people can't.

I'm going to take a wild guess here and suggest that the vast majority
of the Alabama state legislators who approved this law knew next to
nothing about sex toys, sex stores and the like. First of all, most
people don't have a clue about these places or what's in them. Second,
the state of Alabama, when it defended the law in federal court (and
ultimately won), based its argument in part on the historical fact
that states can "restrict the sale of sex."

"The sale of sex"? Do they mean, like, prostitution? It's the only
thing I can figure.

And if there were a connection, I could see the argument. But a sex
toy is no more sex than a baseball glove is baseball. I have a funny
feeling that these people thought of the idea of "selling sex toys,"
saw "selling" and "sex" together, and just assumed that it must as bad
as prostitution.

Because this sounded like the kind of thing that our own elected
officials might try to pull someday, I decided to check out some of
the local sex shops before they to go the way of their Alabama
counterparts. I really wasn't sure what I'd find, and I was mildly
reluctant to go in. I feared that salespeople would accost me like on
a used car lot, which would just be weird.

Turns out I needn't have worried. The service in these places is as
crappy as it is everywhere else these days. You're left alone.

Which is fitting, because the whole market of these stores seems to be
people who are already alone.

There are fake penises, fake vaginas--even fake entire

Some even come with warnings, like this plastic tube thingy men could
use while they drive (it hooks up to the car lighter), the label on
which suggests that you might want to be careful using it, because you
might lose track of what you're doing and have a wreck, which would be
difficult to explain to your insurance company.

Good advice.

The point is this: sex toys aren't about the "sale of sex." They're
about the sale of "enhanced masturbation." The two may be related, but
they're certainly not the same. Actually, you would think that if
Alabama were really concerned about prostitution they would want the
sale of sex toys to flourish.

People who want to have sex and have no willing partner for whatever
reason have two basic options: do it themselves or pay for it. Sex
toys presumably make option one a more attractive choice than it
otherwise might be. It seems like Alabama legislators should prefer
people pay $30 for a plastic woman than pay $300 for a real one.
Apparently not, and all because they themselves don't even understand
the nature of what it is they're trying to stop.

4. It diverts government resources from more important things.

Government resources spent stamping out vice are government resources
that aren't being put to other uses, like, say, preventing real
crimes, fixing roads, paying firefighters more, building schools and
libraries, and so on. It's a question of priorities. And, many times,
even if we're well intentioned, we just gum up the works.

Look no further than our fair city for an example.

A number of years ago, partly in response to the deaths of two young
women by an unknown assailant inside a sleazy front business for
prostitution, the Metro Council passed a set of laws cracking down on
sexually oriented businesses. Inevitably, those businesses fought the
new laws in court, and--for the most part--they lost. Now businesses
have to have permits to operate, strippers have to have licenses to
dance, stages have to be 6 feet high and dancers have to be at least
three feet away from patrons at all times.

This last one is known as the "no lap dance" rule.

At least that's the way it was supposed to be Monday, which was the
day that the federal court decreed--way back in April--that
enforcement of the law could begin.

But the city wasn't quite ready yet. The centerpiece of the new law is
a citizen's board that will oversee sexually oriented businesses,
which means the mayor's office has had to find five people willing to
give up some of their time to attend monthly meetings for free.
Probably not the easiest task. The city has also had to find someone
willing to be the "compliance inspector" for the board for $39,000 a

So the Aug. 1 start-up date was delayed.

But the upshot is that Metro Government has spent years fighting for
this law in court.

And since the final decision was handed down, there have been other
people within Metro who have been spending time and energy putting the
law into action. Metro Legal has had to devote resources to analyzing
the law--what the board can do and what it can't do. The mayor's staff
has had to browbeat people into joining the board, not to mention
vetting them before they get in front of the council for approval.

And somebody has to go through a bunch of applications to ensure that
we don't hire a Ted Bundy wannabe for the "compliance inspector" position.

All this may have made some sense a few years ago, especially on the
heels of a double murder, but a funny thing happened while these laws
were suspended by the courts: the seedy places largely disappeared.
Using basic everyday nuisance laws already on the books, the
government went after the owners of the massage parlors and other
quasi-whorehouses--instead of the women themselves as they had done in
the past--and shut them down. Remember all those sordid looking places
that used to line Eighth Avenue just south of downtown?

Gone, gone, gone.

And those were the places that were the problem.

The strip clubs--the Deja Vus, the Ken's Gold Clubs, and so on--were
not. And, from what I could tell from my visits to those places
recently--they're still not.

You want to know what happens in a Nashville strip club? Here it is:
half-naked woman goes on stage, DJ starts the music, woman dances on
stage, woman takes off all of her clothes, random male puts a dollar
bill somewhere convenient on the woman's body, song ends, woman
gathers up her clothes and leaves the stage, and the next woman goes
on stage. Ad infinitum.

While this is going on, from time to time another woman will sidle up
to you and ask you if you want a dance.

Not if you want "to dance," but "a dance," as in a "lap dance." What's
a lap dance?

I obtained no personal experience in this regard, but I witnessed a
few. Basically, the guy sits rock still in his chair while a naked
woman fondles herself and rubs her body from time to time against the
guy, who remains clothed, for about five minutes.

That's it. I mean, it's nothing I would want my daughter doing, but it
could be a lot worse.

So now you know. And we, as a city, are going to fund a board that
requires these women to get licenses to do this, like they're
electricians or something.

I actually talked to a few of the dancers when they came around to
chat. I was interested in their opinions of the new laws, especially
the three-foot rule. The consensus: "It will kill us." First of all,
if you can't touch the stripper, you can't tip the stripper.

Second, the lap dances are sort of the cash cow of these places. For a
lot of patrons, their visits are less about the women gyrating on
stage than the ones gyrating on their laps. If they're going to have
to watch them from three feet away, what's the point of even going?

That's what the Internet's for.

It is entirely possible, therefore, that local strip clubs as we know
them will be shutting down over the next few months as patrons decide
that they just aren't worth going to. Which leaves the sexually
oriented business board doing...what exactly?

Probably not much. The city will then be funding the existence of an
oversight board with nothing left to oversee, along with a compliance
inspector who has nothing left to inspect.

What a colossal waste of time and money.

5. It just doesn't work.

Have you noticed that, for all the laws we have on the books policing
drug use, illegal alcohol consumption, gambling, and sexually oriented
activities, there still seems to be a lot of drug use, illegal alcohol
consumption, gambling and sexually oriented activities going on? It's
at most moderately difficult to find some grass to smoke if you really
want to. The no-drinking-under-21 rule is widely ignored.

Poker is the new national pastime and--thanks especially to offshore
websites--sports books are as big as they've ever been. And asking
most people to refrain from engaging in what we might loosely call
sexual fantasy is one step removed from asking them to stop breathing.

Don't you think that would give us a clue that this is probably a lost

Some people point to the salutary effect these laws and regulations
have as a justification for their existence.

And, indeed, there is little doubt that there are many people who wish
to engage in these activities but won't for the sole reason that they
are illegal.

It may be that they just don't want to risk getting busted.

Or they may simply have the firm belief that if something is illegal,
you just shouldn't do it. But are these people really our biggest concern?

I doubt it. In fact, you could argue that these are the very sorts of
people we would want to engage in these vices from time to time,
because they're more likely to temper their involvement with a healthy
dose of personal responsibility, which would serve as a positive
influence on the others who do not.

This is an element that is often overlooked in discussions about this
issue. I recognize, as do most people, that vice is called vice for a
reason--it usually has little to no redeeming value, it can be
addictive and people can screw up their lives if they can't handle it.
But our laws haven't resolved any of these issues.

In fact, they've made them worse, because their ultimate effect has
been to completely remove the element of personal responsibility that
in the past kept abuse largely in check.

People with a sense of personal responsibility are much less likely to
engage in illegal activities, so they're now out of the picture. Those
who openly break the law will generally have less of a sense in that
regard--if they did, they probably wouldn't be breaking the law in the
first place.

So we are left with the world of vice being largely relegated to those
who have a reduced sense of personal responsibility, feeding off of
each other's reduced sense of personal responsibility without the
ameliorating effects of those who have a higher sense of same. I don't
think that's what we were aiming for, do you?

So, (except for what I'll call "extreme vice"--child pornography and
prostitution, for instance, about which the analyses are quite
different), let's just stop. And, by the way, that means all of us. If
you are of a more liberal persuasion, the chances are that you think
I'm only talking to social conservatives and their fellow travelers.
Well, you're on the hook too. Because if we're going to truly start
leaving people alone, that means we're going to have to actually leave
people alone.

We're going to have to let them make their own decisions, let them
screw up on their own. And we're going to have to resist the
compelling urge to use the government (there's that phrase again!) to
pick the pockets of people who don't engage in self-defeating
behaviors to compensate for those who do.

Because you can't have it both ways. You can't say that people should
be left alone to behave the way they want but then make everyone else
pay for the effects of that behavior.

If, for instance, someone pisses away his check at the horse track,
that's his own problem and not anyone else's. That means no
assistance, no benefits, no nothing.

Are you prepared to go that far? Because that's what leaving people
alone means. If you're not prepared to go that far, then, to put it
bluntly, you're not any better than the puritanical right.

As the philosopher Erich Fromm once wrote, "if you want a Big Brother,
you get all that comes with it." As for me, I'll pass.

Now, if you don't mind, I'm going to go have a beer. And I may go
online to check out the fantasy football pools.

I've never participated in those things before, but I recently found
one that costs just $50 to enter and the winner gets $40,000. You know
what? I could use that kind of money.
- ---
MAP posted-by: Larry Seguin