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.
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Copyright 2004 by the author, Gloria C. Cox