This is the introductory paragraph National Review The article caught my eye:
there A game prosecutors play. Let’s say I suspect X has committed an armed robbery, but I i know X is dealing in drugs. Therefore, I am writing a search-warrant application based on my overwhelming probable cause that X is selling small amounts of cocaine out of his apartment. I don’t say a word on the warrant about the robbery, but I don’t have to. If the court grants me a warrant for the relatively minor offense of distributing cocaine, agents are authorized to search the entire apartment. If they find robbery equipment, a mask and a gun, the law allows them to confiscate those items. As long as agents are conducting a lawful search, they are authorized to seize any clearly incriminating evidence. Although the warrant was ostensibly for a drug offense, prosecutors could use the evidence seized to charge the robbery.
The article itself focuses on prosecutorial abuse, but my interest lies elsewhere. I want to talk about the throwaway line that cocaine distribution is a petty crime. Is it true?
I don’t see why that would be a crime at all. But does society see it as a small crime?
Here’s the punishment for that distribution of cocaine In Alabama:
|trafficking||In Alabama, it is illegal to sell, manufacture, deliver, or otherwise bring into the state illegal drugs, including cocaine. Trafficking in cocaine is a Class A felony, but the punishment depends on whether the cocaine is sold or intended to be sold or transported. The mandatory minimum sentences are:
It does not feel small!
The NR article does not focus on the distribution of cocaine. But while writing the article the journalist had to quickly come up with a minor crime as opposed to armed robbery. It seems the distribution of cocaine was the first thing that popped into his head.
Here is a question to ponder. Should we criticize the reporter for using cocaine distribution as a good example for a minor crime, or should we criticize the state of Alabama for punishing the perpetrators of a minor crime as if it were a major crime?
Here’s another question. How reliable is our intuition about the severity of any given crime? To answer this question, let’s consider another crime—statutory rape. This crime occurs when an adult has sexual relations with a person under the age of consent. But just like our drug laws, states don’t seem to agree on an appropriate cutoff point for adults:
Blue states have a cutoff age of 16, brown states have a cutoff of 17, and green states have a cutoff of 18. (And note that there is no strong correlation with political leanings in each state.)
In Europe the age of consent is slightly lower:
In dark blue counties like Britain and Spain, the age of consent is 16. It’s 15 in light blue countries like Sweden and France. And in teal countries like Germany and Italy it is 14. (17 in Ireland and 18 in Turkey.) As in the US, the pattern seems almost random.
Although I have no idea which figure is appropriate, several points are clear. There is a huge difference between the age of consent of 14 and 18. It seems rather implausible that the optimal cutoff point would differ between two Western countries. My conclusion is that most of Europe has legalized offending, or the US is imprisoning most people who haven’t committed serious crimes for long periods of time.
Thus, we shouldn’t trust our intuition about sex crime laws like we do about drug laws. This intuition is probably right in some places and wrong in others. Prostitution is legal in some countries, while in others it is illegal. Someone must be wrong!
Unlike drug and sex crimes, all developed countries prohibit murder, forced rape, armed robbery, car theft, arson, tax fraud, kidnapping, and many other crimes. Penalties may vary, but all of these acts are widely recognized as crimes.
But sex and drugs are different. Some regions allow activities that are illegal in other regions. More surprisingly, the gradation in penalties is usually quite abrupt. Previously, you might expect penalties to differ slightly between regions—the United States fines a driver $200 for going 85 miles per hour while Germany allows the speed. not so Activities such as selling pot and having sex with a minor are either perfectly legal, or are considered such serious crimes that a prison sentence is appropriate. I don’t know of a single jurisdiction that progressively stiffens penalties as sex crimes get worse. In other words, one cannot see something like:
$1000 fine for having sex with a 17-year-old
A week in jail for having sex with a 16-year-old
One month in jail for having sex with a 15-year-old.
A year in jail for having sex with a 14-year-old.
(I’m not suggesting these penalties are appropriate, just observing that it’s odd that activities on either side of an arbitrary line are viewed so radically differently—either outright fines or serious crimes.)
Likewise, if pot sales are fully legal in 19 states, you can expect (ex ante) decency rather than punishment for selling pot in the other 31 states. But it is not. Marijuana dealers often face long prison terms.
I encourage people (including me) not to trust our own intuition about sex and drug crimes. The wildly inconsistent manner in which these crimes are treated in different states and countries provides ample evidence that many people’s intuitions are unreliable.
For the younger sex, utilitarianism might suggest the sort of graded punishment discussed above. But be careful with financial penalties. There is a famous story that when a daycare center imposed financial penalties on parents who were late picking up their children, it led to more instances of lateness. (On the other hand, if the penalty equals the inconvenience imposed on daycare providers, who cares?) In the case of sex crimes, a financial penalty may lead some adults to view sex with teenagers as legalized prostitution. , something that can be paid for. (The famous Epstein case is worth thinking about in this context.) But again, if the punishment equals the expected loss (adjusted for the risk of getting caught), is our intuition correct?
I don’t have a good answer about the age of consent, but the arbitrariness of our sex and drug laws makes me uncomfortable. Some are probably wrong, but it’s hard to know which method is correct.
It’s also worth thinking about why This law is so arbitrary. One possibility is that once it is decided that a particular sex law or drug use should be criminalized, no legislator wants to stand up and suggest that the penalty be too high. If you suggest that 6 years in prison for car theft is too much, and 1 year is appropriate, no one will suspect that you have a secret desire to steal a car. But what legislator wants to suggest that 6 years in prison is an additional punishment for having sex with a 15-year-old? Your colleagues may give you a “funny look”.
Rest assured. For a similar reason, whenever I read a range of estimates of the death toll from some political atrocity, I personally lean toward the lower estimate. Who wants to stand up and say that the Chinese government killed 800 people in Tiananmen Square, not 3000? Who wants to suggest the Great Leap Forward kills 20 million instead of 40 million? As a result, larger estimates generally gain more traction when there is greater uncertainty. (To be clear, I don’t believe there is much uncertainty about the Nazi Holocaust.)
PPS. In European countries where the age of consent is 14, there is often a stricter limit (16 or 18) for people in positions of trust such as teachers. And European countries have some of the weirdest quirks that Americans can see.”eyes open“