How We Create Our Own Crimes

Portions of this essay have appeared previously at the Agonist under the title “The Social Construction of Crime”.

Countries, through policy choices, pretty much set their own crime and incarceration rates. Certainly, it’s true, as any demographer or criminologist will tell you, that crime goes up and down in waves as the population of young males goes up and down, but with essentially the same demographics different countries will still have very different crime and incarceration rates.


The reason lies in a distinction the Romans were well aware of. Some crimes are crimes in themselves and you can figure out which ones they are by seeing what crimes are universal, or nearly so, across time and different societies. Murder, rape and assault rank high here. Others are crimes because they are made a crime by society – the classic example, used because it is remote from us, is sumptuary laws, where only nobles were allowed to use or wear certain luxury goods. (Purple lined robes in the Roman Republic, for example.)

The vast majority of all laws deal with the second category as does the vast majority of all criminal activity. Drug laws, laws requiring people to pay taxes, statutory rape laws, laws regulating ownership of land and other possessions, almost all business law, and all laws regulating employment are all about things our society chooses to make a crime.

The distinction isn’t really between “good laws” and “bad laws”, and many laws could be considered necessary that aren’t particularly natural. (Paying your taxes, for example, is required for our society to exist. Drunk driving laws prevent a lot of deaths and few people are willing to suggest that kids should be free to have sex and marry as soon as they hit puberty, even though in many historical societies they have been able to and certainly their bodies are ready.)

Roughly speaking one might divide up “laws of choice” into three categories.

The first are morality laws. In the sociological literature the people who push these are call moral entrepreneurs. A lot of people like to force their own morality on other people.

You can see this in a very pure form in Prohibition, where the primarily rural, Protestant areas of the country formed a coalition to force the non-Protestants in the cities to stop drinking. But you can also see it today, in the gay marriage debate, where some States have not only kept gay marriage illegal, but have gone further and stripped gay couples of rights they could already enjoy through normal legal means.

The US was formed in explicit denial of one form of these laws:

Congress shall make no law respecting an establishment of religion

But, of course, the entire debate around abortion is a moral and religious argument as is the one around homosexuality

The second type of laws of choice are laws created by the government to protect its own interests. Laws against tax evasion. Laws allowing property to be seized. Money tracking laws and so on. Not having good enough records when the IRS comes visiting can be a crime.

A third category is when the government acts to enforce the privileges of a monopoly or oligopoly. Calling yourself a doctor when you don’t have the right license is an example, and in fact in studies few things will get you cracked down harder than hanging up a shingle without the proper qualifications and memberships. Using the state to enforce some form of monopoly, whether service, good or labor is a long long standing practice. You can see it today when telecom companies have lobbied state legislatures to make providing free wireless Internet illegal, so they can charge for it or in so-called intellectual property laws.

In fact the best way to make money is to get the State to force people to give it to you. Want mood altering drugs? Well, legally you can only get most of the really effective ones (other than alcohol) from the troika of doctors/pharmacists and drug companies). The cheap easy ones that can’t be patented are almost all illegal, and it is not a coincidence that as the AMA gained strength this is what happened (having a monopoly on being able to alter people’s moods is a sure money maker.)

So what we have in America is a society where the drugs of the rich and middle class are either legal, or not strongly enforced (how many celebrities who use cocaine have done serious jail time) and the drugs of the poor and minorities (who can’t afford to pay commissions and mark ups through the official mood altering regime) are illegal. I’ve had Valium, and I’m telling you its a serious drug and how many people are on it or some form of similar drug?

What you have, on a more local level, is the inability of people to throw a carpet down on a sidewalk and simply start selling things. They need “licenses” and for most of the poor, that isn’t possible. The rights of the official merchants who pay for market space, and kick back into government coffers through increased taxes are protected against those too poor to do so.

Then there’s what sociologists call Labeling. The simplest example of this is “driving while Black.” Control for everything and blacks still get stopped far more often while driving when Black. For the same crime blacks are charged more often, convicted more often and get longer jail sentences. Exchange black in those sentences with “poor” or “Latino” and they’re still all valid.

The consequence of being convicted of a crime are horrific. I’m not talking about the prison time, though what with the rape and violence, that’s horrific enough. What’s worse is what happens when you come out. When you’ve “served your time”. When you’ve “paid your debt to society”. Because now you’re not just labeled a Black, or Hispanic, or Poor – you’re labeled an ex-con. Since the vast majority of good jobs at good employers require background checks these days, odds are you will never, ever, again have a good job.

Most of the roads to prosperity are cut off for you. The American Dream is dead. Indeed even lower paying jobs can be difficult to obtain. As such the odds of you being pushed into the gray or black economy are very high; odds of committing another crime are very high and odds of being caught and convicted are very high. Once you’ve been marked, the unmarked generally don’t want to associate with you. Almost by necessity you fall into a bad crowd. And all of this can come from one conviction – a conviction that someone luckier, someone whiter or richer, would never have had, even though he too did the crime.

Again this is measurable and you can compare recidivism rates between countries then look at how hard it is to get a decent job. If it’s hard, you’ll have more recidivism. It’s really just that simple. (Though yes, it isn’t the only factor at all.)

The simplest and easiest way to reduce crime rates is to reduce or eliminate the criminalization of victimless crimes. The US has the highest prison population in the modern world, beating out even Russia and China, because it chooses to do so. It has them because it refuses to stop trying to tell its own citizens how they should live their lives, in many cases when their actions are either harming only themselves or are harming those who have consensually agreed to be harmed or because it is enforcing a monopoly for those who have power or who kick back into the system.

The prison population exists also because it is how competition is reduced for scarce jobs on the low end. With the exact same resume, a black candidate for a job will get half the interviews a white one will. With the exact same crime, blacks are incarcerated at a much higher rate than whites. These two things are not coincidences, they are flip sides of the same coin.

Finally the prison population is also so large because it is a way of spreading pork to rural areas. Rural folks work at locking up urban blacks. It’s a great way to give them something to do so they don’t have to leave the area and go to a city themselves.

With only a few exceptions, crime is what a society chooses it to be, and the crime rate is what the society chooses it to be. America chooses to have a higher incarceration rate than unfree China or than Russia or than any European state because America chooses to tell its citizens what to do and what not to do, and to enforce harsher penalties when they don’t obey.

Societies are the way they are because humans make them that way. They aren’t hurricanes (though we’re beginning to effect those). They aren’t forces of nature. While individually each of us can claim we aren’t responsible, in total they are the sum of our decisions about how we want to live – and how we want to force other people to live. They tell us who we are – what we really value when the rubber hits the road – what is important to us, and we could care less about.

So it is with crime. For each crime we need to sit back and ask ourselves “Is this a natural crime that all societies would recognize as such (murder, rape, torture, assault)? Is it something, which if allowed, while not a crime in all times and places, would destroy our society (no one paying their taxes, for example). If it is neither, then is this really something worth punishing? Is it really something worth bearing the costs of enforcement? Why? What is the benefit to society of making this illegal? What is the cost of doing so? Do those outweigh the benefit of keeping it or making it legal?

When you start asking those questions, whole swathes of law – especially laws enforcing so-called victimless crimes (who was hurt?) start looking very flimsy. In fact, viewed in a certain light, those laws start seeming more like crimes themselves.

Ian also writes at the Agonist

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Ian Welsh

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