Friday, June 11, 2004
The Charms of Collective or Vicarious Punishment
In The Theory of Moral Sentiments, Adam Smith notes:
That the innocent, though they may have some connexion or dependency upon the guilty (which, perhaps, they themselves cannot help), should not, upon that account, suffer or be punished for the guilty, is one of the plainest and most obvious rules of justicePlain as that rule of justice might be, it is frequently violated in vice policy. Today's Chicago Tribune (registration required) brings word of one such violation from the Chicago suburb of Naperville. Town rules make it illegal for someone under the age of 21 to be in the company of others under 21 who are drinking. That is, you can be fined not only for underage drinking, but for NOT drinking, too, if you are with other kids who drink. Good Samaritans who drive home their drinking friends are thus put at risk.
Victimless crimes tend to breed such unjust laws precisely because there is no obvious standard for the appropriate amount of punishment that should accompany a victimless crime. (For a good discussion of this theme, see Roger Pilon's "Can American Asset Forfeiture Law Be Justified?," 39 N.Y.L. Sch. L. Rev. 311, 1994.) The extent of moral fervor, then, becomes a major determinant of punishment -- and hence the extent of criminalization as well as the punishment for victimless crimes varies significantly over time, as the moral fervor shifts. Why does the moral fervor shift? Because the activities are themselves morally ambiguous, combining elements of pleasure and wickedness. (On this theme, see Jerome Skolnick's "The Social Transformation of Vice," Law and Contemporary Problems 51 (1): 9-29, 1988.)