The introductory paragraph in this National Review article caught my eye:
There’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses, the prosecutors can use the evidence seized to charge robbery.
The article itself is focused on prosecutorial abuse, but my interest lies elsewhere. I’d like to talk about the throwaway line that cocaine distribution is a minor crime. Is that true?
I don’t see why it should be a crime at all. But does society view it as a minor crime?
Here are the penalties for cocaine distribution in Alabama:
|Trafficking||In Alabama, it’s illegal to sell, manufacture, delivery, or otherwise bring into the state illegal drugs, including cocaine. Trafficking of cocaine is a Class A felony, but the punishment depends on the amount of coke sold or intended to be sold or transported. The mandatory minimum sentences are:
That doesn’t seem minor!
The NR article is not focused on cocaine distribution. But in writing the article the journalist had to quickly come up with a minor crime, to contrast with armed robbery. It seems like cocaine distribution was the first thing that popped into his head.
Here’s a question to think about. Should we criticize the reporter for falsely assuming that cocaine distribution is a good example to use for a minor crime, or should we criticize the state of Alabama for penalizing perpetrators of a minor crime as if it were a major crime?
Here’s another question. How reliable is our intuition as to the severity of any given crime? To answer that question, let’s think about another crime—statutory rape. This crime occurs when an adult has sex with a person below the age of consent. But just as with our drug laws, states don’t seem to agree as to the appropriate cutoff point for adulthood:
Blue states have a 16-year age of consent, brown states have a 17-year cutoff, and in green states the age of consent is 18. (And notice that there’s no strong correlation with political tendencies in each state.)
Europe has somewhat lower ages of consent:
In dark blue counties like Britain and Spain the age of consent is 16. In light blue countries like Sweden and France it’s 15. And in teal countries like Germany and Italy it’s 14. (Ireland has 17 and Turkey has 18.) As in the US, the pattern seems almost random.
While I have no idea what figure is appropriate, several points are clear. There is an enormous difference between an age of consent of 14 and 18. It seems rather implausible that the optimal cutoff point would vary that much between two western countries. My conclusion is that either much of Europe has legalized outrageous crimes, or much of the US is imprisoning people that have not committed serious crimes for long periods of time.
Thus, just as with our drug laws we should not trust our intuition about sex crime laws. Those intuitions are likely correct in some places and incorrect in others. In some countries prostitution is legal, whereas in others it is illegal. Someone must be wrong!
Unlike drug and sex crimes, all developed countries ban murder, forcible rape, armed robbery, car theft, arson, tax fraud, kidnapping and a host of other crimes. The punishments may differ, but all of these acts are widely recognized as being crimes.
But sex and drugs are different. Some regions allow acts that are illegal in other areas. Even more surprisingly, the gradation in penalties is generally quite abrupt. Ex ante, you might expect that there would be slight differences in penalties between regions—analogous to the US giving a driver going 85 mph a $200 fine while Germany allows speeding. Not so. Actions like selling pot and sex with a teenager are either completely legal, or else are treated as such serious crimes that prison sentences are appropriate. I don’t know of a single jurisdiction that gradually stiffens the penalty as the sex crime gets worse. In other words, one doesn’t see something like:
$1000 penalty for sex with a 17-year old
A week in jail for sex with a 16-year old
A month in prison for sex with a 15-year old.
A year in prison for sex with a 14-year old.
(I’m not suggesting those punishments are appropriate, just making the observation that it’s odd that activities on either side of an arbitrary line are viewed so radically differently—either perfectly fine or serious crimes.)
Similarly, if selling pot is completely legal in 19 states, you might (ex ante) expect the penalty for selling pot in the other 31 states to be rather modest. But it isn’t. Marijuana sellers often serve long prison terms.
I encourage people (including myself) to not trust our own intuition about sex and drug crimes. The wildly inconsistent way that these crimes are treated in various states and countries provides abundant evidence that the intuition of many people is unreliable.
For underage sex, utilitarianism might suggest the sort of gradated penalties discussed above. But one must be careful with financial penalties. There’s a famous story that when a day care center imposed financial penalties on parents that were late in picking up their kids, it led to even more examples of lateness. (On the other hand, if the penalty is equal to the inconvenience imposed on day care providers, then who cares?) In the case of sex crimes, a financial penalty might lead some adults to view sex with teenagers as a sort of legalized prostitution, something that could be paid for. (The famous Epstein case is worth thinking about in this context.) But again, if the penalty equals the expected harm done (adjusted for risk of being caught) then are our intuitions correct?
I don’t have any good answers on the age of consent, but the arbitrariness of our sex and drug laws makes me uncomfortable. Something is probably wrong, but it’s hard to know what approach is right.
It’s also worth thinking about why these laws are so arbitrary. One possibility is that once it’s decided that a certain sex act or drug use should be criminalized, no legislator wishes to stand up and suggest the penalty is 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 you have a secret desire to steal cars. But what legislator wishes to suggest that 6 years in prison is an excessive penalty for sex with a 15 year-old? Your colleagues might give you a “funny look”.
PS. For similar reasons, whenever I read a range of estimates of the death toll from some political atrocity, I tend to privately lean toward the lower estimates. Who wants to stand up and suggest that the Chinese government killed 800 people in Tiananmen Square, not 3000? Who wants to suggest the Great Leap Forward killed 20 million rather than 40 million? As a result, when there’s a great deal of uncertainty the larger estimates will usually tend to gain more traction. (To be clear, I don’t believe there’s 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 a position of trust, such as teachers. And European countries have some other odd quirks that Americans might view as “eye-opening“.