Thursday, March 09, 2006

The Law: Should We Punish Sinners or Focus on Effects?

Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly and applying the wrong remedies. --Groucho Marx


The article I linked to in my post about abortion combined with JDHURF's latest post about drug legalization got me thinking. It seems that the disagreements I have with with social conservatives on both issues stems from one fundamental difference between how we think about the law.

Social conservatives think that if something is "wrong," it should be illegal. I think that the law is a tool societies should use to effect beneficial change.

Abortion

Let's take abortion, which we will assume for the sake of argument is "wrong." Social conservatives say, "Well, it's wrong! Therefore it must be illegal!" However, there are several problems with this line of reasoning.

First, if you believe abortion is wrong, you must want to decrease the number of them. As I wrote in my abortion post, Democrat Bill Clinton was very successful in reducing the number of abortions: abortions declined by 17.4 percent during his time in office. (Compare George W. Bush, the "pro-life" politician, under whose rule abortions increased by 14.6 percent!

Second, you must consider the negative effects of criminalizing abortion. Based on pre-Roe America, it's obvious that women will continue to seek abortions, but that they will receive substandard care by non-physicians. Before Roe, there were anywhere from 100 to 1000 deaths of women per year due to illegal abortions.

Third, you must consider whether there are other "wrongs" caused by making one "wrong" illegal. Setting aside the fact that you would be enforcing a law on women which more than 50% of women disagree with, there would be a sharp increase of unwanted children. Note that this is where criminalization really lags behind other methods of reducing abortions, morally. Under Clinton's style of reducing abortions, they are reduced because potential mothers have more support. They have sufficient health care, sufficient money to support their children, and sufficient day care to watch their children. In other words, not only are abortions reduced, but the babies born as a result are wanted and cared for! If abortion were made illegal without enacting the typically Democratic system of providing for mother and child as well, you'd end up with a lot of unwanted children who couldn't be adequately provided for. Most likely, in twenty years, you'll have a whole generation of criminals.

Drugs

Some liberals and most libertarians are in favor of drug decriminalization. Most conservatives, moderates, and many liberals are in favor of keeping them illegal. I believe that we should seriously consider decriminalization, because again, I believe the law should be used to effect positive results rather than to reflect simply what the people think is bad. I think we can do better.

Here are the problems with current drug laws: First, they don't significantly reduce drug usage. According to most surveys, almost half of all American adults have tried marijuana at least once. Any high-schooler will tell you marijuana is as easy to get as is beer. Second, they send a lot of otherwise innocent people to jail, which ruins lives, breaks up families, and possibly turns otherwise innocent people into criminals by reducing career prospects and convincing them that they are already criminals anyway. Third, current drug laws make drugs more dangerous. A heroin addict, for example, needs to get heroin, but has no idea of how pure the heroin he manages to procure is, what besides heroin is in the "heroin," whethere it even is heroin, etc. This leads to a huge number of deaths by accidental overdose. Fourth, drug laws sometimes prevent law-abiding citizens from the best medical treatment. Marijuana provides relief for glaucoma, nausea and lack of appetite due to chemotherapy, and some other medical maladies. Doctors sometimes want to prescribe it, but lawmakers overrule them.

So, what's the alternative? Luckily, we have some examples of legal drugs which are just as dangerous as some illegal ones. Tobacco is the number one cause of preventable death in America and is arguably more addictive than most of the illegal drugs. Yet instead of criminalizing it, America has taken more measured action, resulting in decreased usage, something which we can't say about drug use!

Americans smoked fewer cigarettes last year than at any time since 1951, and the nation's per capita consumption of tobacco fell to levels not seen since the early 1930s, the association of state attorneys general reported yesterday.

Using data the federal government gathers when it collects taxes on cigarette sales, the group found a 4.2 percent decline in 2005 alone and an overall drop of more than 20 percent since tobacco companies reached a legal settlement with the states in 1998.

Association leaders and other tobacco-control advocates hailed the decline as a sign that sometimes-controversial developments triggered by the $246 billion settlement have been effective. The drop was a result, they said, of factors that include the sharply higher cost of cigarettes, restrictions on cigarette advertising and a shift in public perceptions as the dangers of smoking are more aggressively and widely publicized. --Smoking In U.S. Declines Sharply: Cigarette Sales At a 54-Year Low


Conclusion

Let's put some reason back into public policy. Politicians do too much emotional argumentation, and the citizens do too much agreeing. Don't let politicians use their one-size-fits-all arguments! Abortion is bad, make it illegal. Drugs are bad, keep them illegal. Pornography is bad, make it illegal. To quote Jesus one more time, "You shall know them by their fruits." Vote for politicians whose policies actually help! If someone claims to be against behavior X, yet X increases during his tenure, vote him out! Spend some time figuring out what actually works. It's easy to say you're "pro-life," "pro-family," "tough on crime," etc, but if you don't back it up, you're just one more blowhard politician.

17 comments:

Stephen (aka Q) said...

I tend to agree with you on abortion, and certainly on the decriminalization of marijuana. And you make a good case for the decriminalization of harder drugs, too.

I think you'd have a hard time defending your core principle, though: i.e., that law should be used only to effect beneficial change. Sometimes we use law just to get violent, conscience-less people off the street. And that's a good use of law, in my view!

The fact is, we all think we know what jails are for, but in fact our views are very muddled. Are jails about dishing out justice (on the "eye for an eye" principle)? Rehabilitating offenders (a laughable failure, I know)? Providing a kind of social safety net of last resort (e.g. for psychiatric patients when the hospitals are full)? Effect beneficial change (as you argue)?

Or maybe jails demonstrate where society draws the line on moral issues. This is the point which will make your idea unpalatable to the public. To decriminalize drugs will be equated with condoning drug use. No politician will go there because the political price would be too high.

Jewish Atheist said...

I think you'd have a hard time defending your core principle, though: i.e., that law should be used only to effect beneficial change. Sometimes we use law just to get violent, conscience-less people off the street. And that's a good use of law, in my view!

But that's an example of beneficial change.

This is the point which will make your idea unpalatable to the public. To decriminalize drugs will be equated with condoning drug use. No politician will go there because the political price would be too high.

This is exactly what I'm arguing against. It's the religious right's biggest problem. They simply don't understand the distinction between having something be legal and condoning it. (See homosexual civil unions, for example.) I don't condone calling your mother names, but then I don't think it should be illegal, either. I don't see why people can't make this distinction.

JDHURF said...

Very good post, I am in complete agreement.

“Sometimes we use law just to get violent, conscience-less people off the street. And that's a good use of law, in my view!” – journeyman

If you are suggesting that one is violent and conscience-less directly because they do drugs then I find this assertion in need of evidence. Even with the decriminalization and legalization of drugs one who is conscience-less and violent is still subject to the law as everyone else. Just because a drug is either decriminalized or legalized that does not exempt the user from maintaining peaceful civility. If one were to resort to violence or a “conscience-less” action that was negative and against the law that individual would still be subject to the law and the criminal justice system; they would merely not be sent to jail for taking a substance that was oddly selected from a plethora of substances and deemed “illegal”. Decriminalizing and legalizing certain substances isn’t going to keep violent criminals from being subject to the criminal justice system, quite the contrary, after the system has been relieved of its overwhelming pressure from all of its drug related crime it will have more time, funding and resources to focus on those criminal which present a legitimate threat to civil society. Simply put violent criminals will still be convicted and jailed for their actions maybe at an even higher and more efficient rate with out unconstitutional drug cases.

JDHURF said...

“I don't condone calling your mother names, but then I don't think it should be illegal, either. I don't see why people can't make this distinction.” – jewishatheist

That’s a good point and I also do not understand why people cannot make the distinction. It reminds me a great deal of the religionists that believe because I do not agree with their views and will vocalize dissent that I am “attacking” their views. There is a difference between not believing a worldview and vocalizing ones dissent with that of attacking that worldview.

Sadie Lou said...

It's easy to say you're "pro-life," "pro-family," "tough on crime," etc, but if you don't back it up, you're just one more blowhard politician.

I find it annoying that people won't vote for a politician because "he's a democrat" or "she's a Republican" without looking at that particular politician's voting record.
Like you said, it's too easy for politicians to hide behind a political affiliation to get votes. We need to up the game by actually keeping them accountable to their posititions by checking the facts.

Anonymous said...

I completly agree with you in regards to your stance on abortion. However, I do not feel the same about your take on decriminalizing drugs. You can not possible compare tobacco and the use of hard drugs. Those hard drugs alter your mind and make you a detriment to society. You are unfit to work, take care of your children, and be a productive member of society. Furthermore, tobacco use does not have the same stigma associated with it as drug use. Why do you think employeers ask for a urine sample? Are they concerned with tobacco use? NO! Drugs! If I lived in a society where you could pick up a pack of cigarettes and syringe of heroin at the gas station, something is truely wrong.

Jewish Atheist said...

Those hard drugs alter your mind and make you a detriment to society. You are unfit to work, take care of your children, and be a productive member of society.

Can't the same be said about alcohol?

asher said...

Oh c'mon..you can't say you are pro-choice unless you agree that a 14 year old girl should be allowed to have an abortion in her 8th month of pregnancy without parental approval or knowledge and at government expense. Sure, I've loaded the example but if you make any exception you are not true to the cause.

In addition, if you want drugs to be legal you have to allow for crack cocaine to be sold over the counter, meth to be sold to minors without adult supervision, and heroin to be available for sale at your local school book store.

All in favor vote yes.

JDHURF said...

Meth to be sold to minors and heroine available at the book store? Please be realistic, xanax and oxycontic (a synthetic variation of a heroine like chemical) are both legal but not sold to either minors or any one that goes to a bookstore. I say yes to both legalization AND regulation, not only that but regulation that correctly corresponds to the specific drugs inherent danger. What you are doing, rather blindly, is equating the legal status and de-scheduling of psychoactive substances with not regulating them whatsoever. Which is not what anyone is calling for.

Jewish Atheist said...

What a strange argument, asher. By your logic, we have to let 12 year olds buy cigarettes and allow nuclear weapons to be sold "over the counter."

Abu Gingy said...

http://www.reason.com

JDHURF said...

“Furthermore, tobacco use does not have the same stigma associated with it as drug use. Why do you think employeers ask for a urine sample? Are they concerned with tobacco use? NO! Drugs! If I lived in a society where you could pick up a pack of cigarettes and syringe of heroin at the gas station, something is truely wrong.” - anonymous

Obviously employers are not going to refrain from hiring a cigarette smoker because one, it is legal and two, it does not impair ones functioning as readily as alcohol or other drugs. Employers are constantly firing and “terminating” employees for drinking issues. Go to a treatment center and ask around. It is, however, difficult for an employer to know before hand if the prospective employee has a drinking problem or not and it is quite impossible to test for it, alcohol has a half life within the body of a mere eight hours whereas cannabis sativa has a thirty hour half life.
The legalization of all drugs needs to happen, no one is saying that all drugs should be sold at the local “stop ‘n shop,” but they need to be removed from the selective and odd scheduling of the federal government. Alprazolam (xanax) is legal but you certainly can’t expect to show ID at a grocery store and buy it, the same should go for some of the other “harder” drugs such as methamphetamine (which is already in place to some degree as I said with Desoxyn) cannabis sativa (which is already in place to some degree with marinol) and all of the other psychoactive substances. To give certain drugs complete legality (alcohol) and others a schedule I classification (methylenedioxymethamphetamine or MDMA, heroine, cocaine, etc) for complacent and benign reasons is simply a gratuitous mistake and one that is causing so much damage and harm that I cannot logically understand the argument for it.

Random said...

"Social conservatives think that if something is "wrong," it should be illegal."

Way too broad brush. There are plenty of social conservatives around who do not wish to legislate their views on others - and plenty of progressives who do, for that matter ("hate crime" legislation, anyone?).

"As I wrote in my abortion post, Democrat Bill Clinton was very successful in reducing the number of abortions: abortions declined by 17.4 percent during his time in office. (Compare George W. Bush, the "pro-life" politician, under whose rule abortions increased by 14.6 percent!"

You did indeed say this, and I missed the discussion last time around. However you failed to demonstrate cause and effect - and in particular, you failed to demonstrate that the welfare reforms you are crediting Clinton for were not in fact essentially imposed on him by the Republicans after the Democrats lost control of Congress in the 1994 elections.

Incidentally, as far as the statistics themselves go it took a lot of work to track down any official looking numbers (eventually found them at the Center for Disease Control website here - http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5407a1.htm), and even more analysis to try and get to what your article is pointing at, but it seems as though the 17.4% figure for the Clinton years is accurate enough, but I've no idea where the 14.6% figure for the Bush years comes from - the CDC only appears to have compiled figures as far as 2002 (i.e. the first two years of Bush's first term) which show a minute increase of 0.81% in the abortion rate on Bush's watch.

Incidentally it should be noted that in support of my point about the Republican congress above that the rate was actually fairly stable during the first two years of the Clinton era and didn't begin to drop dramatically until 1995.

"Before Roe, there were anywhere from 100 to 1000 deaths of women per year due to illegal abortions."

And how many women die per year due to legal abortions now? The CDC reports about 10 a year up to 1999 (most recent figures available), but there's reason to believe the CDC figures are on the low side - if a woman dies during an abortion because complications in the pregnancy (an ectopic pregnancy for example) cause the abortion to go wrong then the death is recorded as pregnancy related, not abortion related, in the statistics - so the true figure is probably rather higher. If you're going to talk about saving the mother's life, you really do need to compare both sets of statistics. And if you are talking about saving life in general, you really do need to start thinking about the numbers of unborn children involved too.

As for the unwanted children angle - I'd just like to point out the huge waiting list for adoptions in just about every developed country (including the USA) in the world. Just because a baby is unwanted by its natural parents doesn't mean there's nobody who wants it.

Won't comment much on what you say about drugs as I think I basically agree with you - drugs should be made legal, but subject to the same tax and control measures as alcohol and tobacco - and also to the same social disapproval that is gradually driving tobacco smoking at least into extinction.

Jewish Atheist said...

Random:

Way too broad brush. There are plenty of social conservatives around who do not wish to legislate their views on others - and plenty of progressives who do, for that matter ("hate crime" legislation, anyone?).

I agree with your point, but not your example.

However you failed to demonstrate cause and effect [for abortion reductions under Clinton] - and in particular, you failed to demonstrate that the welfare reforms you are crediting Clinton for were not in fact essentially imposed on him by the Republicans after the Democrats lost control of Congress in the 1994 elections.

Clinton's a fiscal conservative, but Republicans have trouble not seeing him as a complete liberal for some reason. Also, there were reasons other than welfare reform for the decrease. (Health care, etc.)

Incidentally, as far as the statistics themselves go it took a lot of work to track down any official looking numbers (eventually found them at the Center for Disease Control website here - http://www.cdc.gov/mmwr/preview/mmwrhtml/ss5407a1.htm), and even more analysis to try and get to what your article is pointing at, but it seems as though the 17.4% figure for the Clinton years is accurate enough, but I've no idea where the 14.6% figure for the Bush years comes from - the CDC only appears to have compiled figures as far as 2002 (i.e. the first two years of Bush's first term) which show a minute increase of 0.81% in the abortion rate on Bush's watch.

Gack. Good catch. I think you might be right here. I'll print a correction. :)

If you're going to talk about saving the mother's life, you really do need to compare both sets of statistics.

True.

And if you are talking about saving life in general, you really do need to start thinking about the numbers of unborn children involved too.

The part you're quoting was specifically about negative consequences of criminalizing abortion. Obviously, if you believe that new fetuses are morally equivalent to adult women, the women killed by illegal abortions won't be too compelling.

Laura said...

I'm late to this one. I'm not touching the abortion argument, since that's a much more emotionally charged issue. However, with drugs, I believe we need to focus on the policy problems. Any drug, legal or illegal, controlled or not, can be (and is) abused. Humans have been altering their minds for thousands of years for ritualistic and entertainment purposes - it's not going to stop because someone says it's illegal. What we need is less of a punitive stance on drugs, and more harm reduction and treatment. Drug addicts need treatment, not jail time. Sometimes in addition to jail time, sure.

Random said...

"I agree with your point, but not your example."

Cheers. The point I was making was that pretty much any crime deserving of punishment has a significant element of "hate" involved in it. Progressives are heading in a wrong direction by seeking to privilege some kinds of hate over others - but this is way off topic:-)

"Clinton's a fiscal conservative, but Republicans have trouble not seeing him as a complete liberal for some reason."

Clinton had the potential to be a good, if not great president. He ruined it by showing all the morals and integrity of an alley cat on heat in his personal conduct and thereby brought disgrace on his office. I think this is the reason why Republicans couldn't stand him frankly.

"Also, there were reasons other than welfare reform for the decrease. (Health care, etc.)"

Quite. It's an extremely complex issue - which is why an alarm bell went off in my head at the claim that any one man (even POTUS) could make a significant difference.

"The part you're quoting was specifically about negative consequences of criminalizing abortion."

And the point I was making was that it makes no difference to a woman who dies of an abortion if the abortion was legal or not. If you are going to offer legal abortion as a remedy to the death rate caused by illegal abortion, then you really do need to study the statistics of deaths caused by legal abortions as well to see if you will actually reduce the death toll. The problem with this however is that official statistics seem to be calculated in such a way as to minimise the number of deaths attributed to legal abortion so it is difficult to make a like for like comparison.

"Obviously, if you believe that new fetuses are morally equivalent to adult women,"

No, I wouldn't say that - but I do believe thay are not morally equivalent to, say, excess fat being removed by liposuction, where there are no moral isues at all involved.

"the women killed by illegal abortions won't be too compelling."

Unworthy, JA. As I thought I made clear, I was expressing concern for all women who die as a result of what is in the vast majority of cases a non-essential medical procedure (the number of incidents where an abortion is genuinely necessary to save the life of the mother is I believe a fraction of one percent of the whole). It makes no difference to the dead or their relatives whther the procedure was legal or not.

Jewish Atheist said...

The point I was making was that pretty much any crime deserving of punishment has a significant element of "hate" involved in it. Progressives are heading in a wrong direction by seeking to privilege some kinds of hate over others - but this is way off topic:-)

I understand your point, but I don't think "hate crimes" laws are far off. The idea is not that we're adding a punishment for motive, what we're punishing is the additional threat to the rest of the hated group. If you kill a black man because he stole your girlfriend, that's a crime just against that man. If you kill him because you hate blacks, though, it's a threat to all blacks living nearby. (It's obviously not the soundest reasoning in the world, but there's some reasoning there.)

Clinton had the potential to be a good, if not great president. He ruined it by showing all the morals and integrity of an alley cat on heat in his personal conduct and thereby brought disgrace on his office. I think this is the reason why Republicans couldn't stand him frankly.

I understand that, too. His behavior around (some, probably a lot of) women was disgraceful. He was more willing than many politicians to change his positions based on polling. Still, I think that his intentions were usually good (except with women.) A flawed person, to be sure. He could have been great, I agree, and he could have been a hell of an inspiration to a whole generation of people instead of ending up as the butt of jokes.

If you are going to offer legal abortion as a remedy to the death rate caused by illegal abortion, then you really do need to study the statistics of deaths caused by legal abortions as well to see if you will actually reduce the death toll.

This point seemed so obvious I didn't think I needed numbers (er... facts) to back it up. If you have a procedure in a hospital by a trained surgical team, with resources nearby in case of emergency, your odds must be better than if you're being operated on by some random midwife or a guy who needs some extra cash in a non-sterile environment.

No, I wouldn't say that - but I do believe thay are not morally equivalent to, say, excess fat being removed by liposuction, where there are no moral isues at all involved.

Oh, believe me, I agree with you there, as do at least 95% of my fellow Democrats. Almost nobody thinks of abortion as if it were the same as using a condom.

Unworthy, JA.

I think you're misinterpreting this part. I was just saying that if you believe fetuses are morally equivalent to adult women (which you don't) than it would be "worth" the deaths of some women to save thousands of fetuses.