Why It Might Make Sense to Tell People Not to Do Things They Will Do Anyway

-- By KregKatoski - 17 May 2009

Introduction

In class, it was suggested that it does not make sense to tell people not to do things they will do anyway. While it may seem unjust to tell a man not to kill or eat another human being to survive or to tell a poor boy not to sell drugs to make a living for himself, such laws are far from ineffective or meaningless. Not only can such laws affect the behavior of other people, but they can also serve to express values in such a way as to have a profound impact upon society and human dignity.

• Yes, this is obvious. You are taking the question out of context in order to provide an obvious non-response with the aura of a significant objection. I asked what the point is of telling sailors to starve rather than surviving. In that context, I used the expression you are now constructing into a straw-man shaped generality so you can provide supposedly damaging counter-examples.

Why does it make sense to tell a boy not to sell drugs when he's poor?

Punishing drug dealers may not alter the behavior of some who are too poor to do anything else (though there may of course often be viable, albeit less fruitful, alternatives), but it will certainly alter the behavior of those who do have promising alternatives. There would undoubtedly be a significant increase in the number of college students, for example, who would deal drugs if doing so were not illegal. For those who have a meaningful choice, the illegality of such an activity proves to be a serious deterrent, particularly if these individuals expect to have a promising future and are thus fearful of potentially life-altering criminal records. Even among those who are poor, the vast majority choose paths other than drug dealing (or other criminal activity such as stealing) to get by. It would be prohibitively difficult and arbitrary to attempt to individually determine who should and who should not be punished based on the life circumstances of each individual and whether or not each had a meaningful choice in pursuing an activity such as drug dealing. Thus, if we feel that drug dealing is an activity harmful and wrong enough to warrant criminal punishment, the fact that such punishment might not alter the behavior of those too poor to do anything else does not mean that such punishment is ineffective or unjustified. Similarly, while punishing people for possession of drugs likely does not change the behavior of drug addicts, it certainly changes the behavior of others, many of whom are wary of buying, using, and possessing drugs due to the possibility of criminal punishment.

• Of what relevance is this example? Even on your account of what the general issue is, it has to do with the pointlessness of ordering people not to do that which their survival requires. Obviously, as most desperately poor people do not sell drugs, there's no necessity here of any kind.

Expression of Values through the Law

Justifications for such laws are found not only in the direct effects of the laws and their implementations, but also in the expression of values that the laws provide. After all, the choices made pertaining to what sorts of behavior to criminalize reflect, or in some cases influence, the values of society, whether or not such behavior is actually punished.

Lawrence v. Texas

One example of the value expressing aspect of the law can be seen in the landmark case of Lawrence v. Texas, in which Justice Kennedy struck down an anti-sodomy law as unconstitutional, though this law almost certainly did not affect behavior and may never have been enforced. Kennedy cited a "pattern of nonenforcement with respect to consenting adults acting in private" in most states, as well as a statement by the State of Texas that as of 1994, no individuals in such circumstances had been prosecuted under the law, suggesting that this law was merely a value statement by the Texas legislature regarding homosexual activity. Kennedy suggested that homosexuals should have the liberty to engage in such a lifestyle without being branded as criminals and should be able to maintain their dignity as free persons. By striking down this statute, the court in this case sought to make a change not in what the law did, but in what the law stood for, as this demeaned homosexuals for their lifestyle choices.

• How has this got anything to do with even your supposed subject? You mean, why should we tell people not to have sex? In which case, on what side of the question is your example?

Decriminalization of Drugs in the Netherlands

Yet another example of the value expressing aspect of the law can be seen in the decriminalization of drugs in the Netherlands. Even though the government does not find it necessary to punish possession of drugs, the laws still remain on the books. Removing them entirely could be seen as governmental approval of drugs, which might send the wrong message to people on the subject. By simply decriminalizing the conduct but leaving laws on the books, the government makes a policy decision that offenders shouldn’t be punished, while simultaneously sending an official message about its views on the nature of the acts in question. Such a message is not only symbolic, but can also have very real effects, as some might choose not to engage in a behavior that is disfavored by the government, even if there is no threat of penalty behind this.

• You have not understood the Dutch situation correctly. The Dutch leave the laws against buying and selling marijuana intact because transacting in non-trivial quantity is still subject to

  prosecution

  above the level of the individual user, there is no legal marijuana trade. Your supposed principle of maintaining official disapproval is also a misunderstanding: for a while, for example, the municipality of Delft even owned and operated all the marijuana distribution shops in town—which meant they were actually dealing illegally with wholesalers—because they wanted to prevent trade in hash and hard drugs in the retail outlets, and operating them was cheaper than policing them. Official disapproval is not public

  policy

  harm reduction is public policy. Rendering not subject to prosecution (which is not, for the formalist, decriminalizing) the purchase and possession of one day's supply for each person appearing at the shop is harm reduction in clear and sensible calibration.

• But once one has got the Dutch situation accurately described, what side of any conceivable discussion of your thesis is the example on? Like most Dutch social policy, this one partakes not of the "law is a declaration of the public values" theme that emerges very strongly in the Romanist content of Dutch jurisprudence, but of the "law is an instrument in the achievement of social welfare and stability" theme that American legal realism usually sounds. While, on the other hand, the whole point of sanity about marijuana policy—if that's the subject here&mdsh;is the recognition that, because it's neither as addictive nor as harmful as the legally available stimulants, let alone the other controlled substances with which it is misgrouped, there's no necessity in the social response to its use that justifies low-level criminal regulation. So this isn't about necessity and it isn't about the value of formalism. Why are you claiming it for your argument?

Conclusion

While in some cases it may appear unjust to punish conduct when such punishment will not deter a class of individuals from engaging in it, this decision may deter others from engaging in the behavior, thus furthering the policy goals of the government. Likewise, criminalizing conduct, regardless of whether or not it will be punished, can serve to make a value statement that may in turn affect people’s behavior. The fact that criminalization or punishment of a certain conduct may not alter the behavior of some does not show that it is ineffective, let alone meaningless.

• Here you reap the usual spoils of war on a man of straw. You are left with a series of statements no one would be motivated to deny, and which don't constitute, for the reader, anything like compensation for the fatigues and dangers of the journey to the front. What little air of newness is presented in the first sentence actually is smuggled in: the issue with the prohibition of the truly inevitable wasn't whether it's unjust to punish: I didn't ask, "How could you?" I asked, "what's the point?" You say, secondary deterrence and the making of a public statement. Which is true enough, if not really responsive in the context in which I asked the question. (You spend a thousand words saying it, despite our having gone through these motives of the govt in connection to Dudley and Stephens during the second part of our class discussion of Brian Simpson's book, which allows it to be resaid much more quickly, as the basis for some further development.)