Libertarian’s Corner: The Pernicious Nature of Victimless-Crime Laws

Joseph S. Fulda

Joseph Fulda is a free-lance writer living in New York City. He is the author of Eight Steps Towards Libertarianism.

Laws creating victimless crimes are particularly pernicious. Their associated evils are essential rather than accidental; that is, their destructive properties stem from their very nature as victimless

Let me open my account with a short account of a crime that had a victim. In the height of the Dinkins-era crime wave in New York City, I arose early one morning and decided after saying my prayers to have a breakfast of bagels. Since the bagel shop was only about five blocks from where I lived, I put on my coat, walked out the door, and started my walk. At the corner, two youths appeared as if out of nowhere and one held the blade of a knife palpably to my throat and demanded my money, which not being foolish, I quickly surrendered. The incident left me angry and humiliated and after regaining my composure, I immediately hailed down a police car. The officers and I patrolled the area looking in vain for the youths who had “mugged” me. They then took me to the station house to view mug shots. I realized there why eyewitness testimony is so often flawed: while I was sure I could have identified the youths on the street had we passed them in the car, the task of identifying them from the mug shots was hopeless: I just could not do it with any degree of confidence. I left the police precinct house dejected, dejected because the only hope for the criminals’ capture had been that ride in the patrol car. The victim’s early identification-when what was stolen was cash and when the weapon was an ordinary knife was the last, best chance of the police successfully making the arrest. I was both their first recourse and their last hope. I went away from the station house knowing that even were they to be caught later for another offense, they would never be charged for the indignity and humiliation they had visited upon me.

This is, in essence, how it is with most crimes: The victim’s ability to identify the criminal by sight, sound, or even smell, the victim’s wounds and marks, if any, and traces of fibers and dropped materials in the victim’s surroundings provide the best shot at catching the criminal. In other words, the victim’s active help is the best chance of an arrest and a successful prosecution. (In the case of murder, the victim has stand-ins-his family and friends.) The victim also provides the push for an arrest and successful prosecution. Rarely are crimes solved without the cooperation and impetus of the victim, although there are, of course, exceptions.

Therein lies the problem with victimless crimes. Since there is no complainant, no one whom the outlawed behavior has harmed, how is it to be reported and detected, how are malfeasants supposed to be brought before the bar of the court, and how is the prosecution supposed to be carried out-and what impetus is there for a prosecution?

The answer historically has been twofold. First, the rules of evidence have been relaxed-the drug exception to search and seizure procedures. Second, the government has stepped in, in the place of the victim, acting as a willing participant in the crime only to turn on the other party later. These are what are called “sting” operations and mostly they are used for victimless crimes. But the officers participating in the sting are not true victims; they have not been harmed. Indeed, they collect a paycheck. The problems this leads to are legion. These officers have dual loyalties for the sake of which they may play the government for the fool as often as those involved in the drug trade. This begins with the practical necessity of alliances in both worlds and ends with the very real allegiances to and in both worlds. Officers may take bribes; they may participate in crimes-justifying it to themselves and sometimes their superiors by the necessity of establishing a rapport with the criminals they are after or with their organizations. Sometimes they even participate in real (non-victimless) crimes or watch silently as their confederates knock off each other or innocent others. They justify this participation or silence to themselves or their superiors by the need to stay quiet till they can identify and arrest “the big guys”-even though the non-victimless crimes are committed on the street by the little guys. Case building of this sort takes a lot of time and many officers because, instead of each discrete criminal act having a victim who acts as complainant, the moment the officers blow their cover and make a series of arrests, they immediately lose the ability to track and detect future (victimless) crimes, to make future arrests, and to prosecute further cases. So the emphasis is always on casting a wide and deep net that will ensnare as many and as important (to the criminal enterprise in question) perpetrators as possible.

The many sordid things that happen during the course of the casting of this net-both to civil liberties and by the officers’ participation and silence in crime and by graft and corruption-are among the costs of going after victimless crimes. As for graft and corruption, remember there is no complainant making life difficult for a slow investigational unit; these investigations always take lots of time; why, say many law-enforcement officers, not take some of the plentiful money on the side. Such monies, after all, are always plentiful around victimless crimes because illegality restricts supply and raises prices.

Victimless crimes, in summary, invite graft and corruption of all kinds because the suspension of civil liberties is the only effective way of combating his species of crime. Ordinary crimes are combated using the help and impetus of the victim or his stand-ins.