Adelberg: Victimless 'Crimes'
Why the law must stop persecuting harmless citizens.
Homecoming was meant to be a night of unity and tradition. The whole college and many alumni came together to celebrate our community and one of our most cherished traditions: the Homecoming bonfire. The energy in that ring as we ran our 21 laps grew stronger than the waves of heat from the roaring tower of flame. As enthusiasm grew, the call of tradition won over a few brave students: They were going to touch the fire. Laws, walls and officers could not shatter their resolve to keep tradition alive. They leaped over the barriers, dashed toward the fence — and got arrested. Chants of “let him go” filled the Green as students protested. The students caught could face criminal charges or four-figure fines. If any are international students, they may face deportation.
This is not the profile of people out to tear down civil society. This is the story of the Class of 2021 attempting to keep the traditions of Dartmouth alive in the face of institutionalized opposition. Those who touched the fire successfully kept a tradition alive, exhilarating hundreds without risking harm to anyone but themselves.
Why did they get handcuffs on their wrists rather than medals around their necks?
This injustice is the consequence of a relatively recent innovation in American law: the “victimless crime.” The term, first coined in the 1960s, was invented to describe crimes like consensual prostitution, gambling and drug use that do not leave a clear victim other than the purported offender. Governments passed laws that criminalize such acts to punish people for violating moral norms, hoping the coercive force would stop individuals from engaging in distasteful behavior.
These laws do not work. Almost invariably, they simply force “immoral” behavior underground while punishing harmless individuals and delegitimizing law enforcement.
Look no further than the American war on substance abuse. During Prohibition, the United States targeted drinkers with the full might of law enforcement. Drinking did not end. Instead, it simply went from communal taverns to the shady speakeasies of Al Capone, beginning the rise of organized crime. The small portion of liquor distributors that law enforcement could catch proved enough to clog the court and prison systems. When Prohibition ended, drinking became safer and provided a new source of tax revenue.
When former President Richard Nixon decided to try the same failed tactics against drug users, drug use moved underground. Drugs were produced by cartels and distributed by gangs. Police tactics fueled mass incarceration — 31 percent of prison admissions are for drug-related offenses — while alienating African-American communities through allegations of racism and unequal enforcement. In the face of the Black Lives Matter backlash, confidence in the police hit a 22-year low. Laws creating victimless crimes do not work in practice and are unjust in theory. In laying the foundation for much of modern Western law, philosopher John Stuart Mill observed that, “The only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others.” When governments exert coercive power over the people for any other purpose, John Locke reasoned, those violations of natural rights render the state-citizen social contract void and the coercive government illegitimate.
The only alternative to such a crisis of illegitimacy and injustice, 20th century philosopher John Rawls argued, is a society where “each person is to have an equal right to the most extensive basic liberty compatible with a similar liberty for others.” Laws against victimless crimes exercise damaging, coercive power over citizens who hurt either themselves exclusively or no one at all. Such laws illegitimately infringe upon natural rights to self-determination, sowing anger and disrespect toward political institutions. To avoid such animosity and injustice, we ought to respect the inalienable rights of our fellow citizens — and make sure they respect ours.
The new year is only two short months away. Before we know it, the Class of 2022 will be running around the Homecoming bonfire celebrating our traditions and, yes, trying to touch the fire. As a civil society, Dartmouth faces a choice: Should the College use damaging tools of legal coercion against students participating in a harmless tradition, or should it embrace liberty and tradition as indelible components of what Dartmouth is? The College has little sway over national policy, but it has the power as an inclusive community to protect natural rights at Homecoming. In our constant efforts to build a better Dartmouth community, let’s strengthen our civil society by respecting natural rights and allowing tradition to thrive.