NO PRICE TOO HIGH: VICTIMLESS CRIMES AND THE NINTH AMENDMENT

Vol. 14 No. 3 (March 2004)

NO PRICE TOO HIGH: VICTIMLESS CRIMES AND THE NINTH AMENDMENT, by Robert M. Hardaway. Westport, Connecticut: Praeger, 2003. Pp.229. Hardcover $69.95. ISBN 0-275-95056-5.

Reviewed by Gloria C. Cox, Department of Political Science, University of North Texas. Email: gcox@unt.edu .

Public officials in the United States have viewed such activities as smoking tobacco, drinking alcohol, using contraception, visiting a prostitute, taking illegal drugs, having unconventional sex, and gambling as morally troubling and harmful to the fabric of society. In NO PRICE TOO HIGH, Professor Robert Hardaway provides an interesting and provocative assessment of these so-called victimless crimes and our societal battles to restrict them. He presents and defends the thesis that it is unsound public policy to criminalize such actions and to commit huge amounts of resources to enforce laws that should not exist anyway in a free society.

The author begins his discussion with the premise that if we were to find ourselves having to explain public policy on these issues to a visiting Martian, we would have a tough time indeed. He notes that some 400,000 Americans die each year from the effects of tobacco use and that drinking alcohol accounts for some 110,640 deaths annually, including 16,653 that are traffic related. Additionally, alcohol is a factor in many other types of accidents, crimes, and suicide. The damage from smoking and drinking is quite high indeed compared with the average annual toll of 3,562 Americans who die from illegal drug use (p.2).

There is no denying, however, that drug use is related to a substantial number of crimes against property and persons each year. This is precisely the author's point, as he argues that criminalizing drug use is the problem. Were drug use to be decriminalized, the half of our prison capacity that goes to incarcerate drug offenders could be used for other offenders. Hardaway attributes the harm of drug use to such laws rather than to the use of drugs, noting "[c]rime and violence do not emanate from some physiological effect of the drug, but the drug laws themselves" (p.105). Moreover, decriminalizing drugs would be beneficial in others, as it would break the back of organized crime and put neighborhood drug dealers out of business. Hardaway relies on the example of Prohibition to illustrate his point about supply and demand.

The author's contempt for current policy is evident throughout the book (including the title) as he analyzes the failures of policies that criminalize what he considers essentially private behavior. A key idea is the difficulty that current policies create for law enforcement officers, who try to enforce policies that are doomed to failure for lack of public support. He argues that scarce prison space goes for drug offenders with the result that violent criminals are released well before it is appropriate. The author quotes a Cook County, Illinois, official as saying, "There is no such thing as a free crime. Every enforcement effort consumes scarce resources. The more conduct we define as criminal, the more that scarce resources have to be allocated selectively among different crimes" (p.6). And, he notes, "the profession of drug dealing would not exist in the absence of criminalization" (p.20). These difficulties make a convincing argument for legalization. Hardaway posits "that legalizing personal vices is justified by a considered weighing of the costs and consequences of criminalization" (p.30).

As the reader will note from the earlier listing of victimless crimes, it is obvious that what we consider a crime changes over time. Some of the drugs that are now illegal were once quite openly available as medicines and stimulants. One substantial contribution of this book is the lengthy and interesting discussions of when and how specific drugs became illegal. For example, opiates did not become illegal until the 1890s (p.88). Even then, the issue was not the possibility of ill effects from use, but rather the connection between opium and Chinese immigrants. As various discriminatory measures were taken against Chinese immigrants, particularly in California, it also became common to see media reports of opium dens and the assertion that American society was being undermined by the use of opium among the Chinese (p.89).

Similarly, support for banning marijuana rested with targeting minority groups, this time Mexican Americans in the West and Southwest. An association was made between marijuana and the illegal immigration of Mexicans into the United States. Hardaway notes the power of racist images among those who wanted to criminalize marijuana, as "Mexicans were …also feared as a source of crime and deviant social behavior" (p.91).

Even with the issue of alcohol, calls for prohibition were linked to racism against African American men. Some suggested that drinking liquor caused black men to fantasize about raping white women, raising the racist stereotype so long a part of our culture (pp.53-54). Prejudicial attitudes in American society allowed such notions to flourish and to add to the support for prohibition. Prohibition ended, of course, when it became clear that the policy was being violated to such a degree that it could not be enforced, no matter how many resources were committed to the effort-and government officials needed the funds that legal production and sale of alcohol would provide.

The chapter on prostitution is probably the weakest chapter of the book, as it deals with the issue mainly in an historical context. The provocative arguments that characterize other chapters are largely missing from this chapter, although it is still interesting to read. Additionally, it is troubling that virtually all of the information in the chapter comes from just two sources. In fact, the other chapters are much more closely documented.

The careful reader may remember that the book's title pertains to victimless crimes and the Ninth Amendment, which reads: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The discussion of the Ninth Amendment is saved until the final chapter of NO PRICE TOO HIGH. Professor Hardaway argues that courts should abandon their century-long practice of adjudicating personal autonomy claims under the Ninth Amendment as substantive due process issues. Instead, he embraces ideas set forth by another scholar who "proposes a two-step Ninth Amendment adjudicative mechanism that replaces substantive due process in the realm of personal autonomy rights" (p.195). The questions are: 1) "Is the activity involved substantially private?" and 2) "Does the activity threaten individuals or the public as a whole?" (p.195).

Hardaway couples his Ninth Amendment reasoning with his assessment that the war on drugs has eroded our constitutional guarantees under the Fourth Amendment. He then puts forth-in the last five pages of the book-his two arguments for drugs: The right to self-determination and the Harm Principle (pp.198-203). Hardaway makes the claim that the exercise of certain privacy rights and the ability to keep the government out of those private areas are crucial elements of self-determination. The case is thus made for freedom to engage in any or all of the behaviors discussed earlier, including using drugs that are now considered illegal. Similarly, the Harm Principle relates to the ideas of John Stuart Mill who claimed that decisions about self-regarding actions that affect only the person involved must rest with the individual. Only when there is harm to society in general or other persons is government intervention justified. These are rich arguments, well worthy of additional discussion and analysis.

NO PRICE TOO HIGH is interesting reading with a powerfully-presented and strongly-argued thesis. It is likely to provoke useful discussion about important issues.

***********************************************************