Victimless Crimes

Lewis argues that “A CRIME is any act which one man, with evil intent, commits upon the person or property of another, without his consent.… All crimes may be justly punished by law.” By contrast, “a vice is any injurious act or passion in which a person indulges himself.… Vices are not justly punishable by law. They are amenable to reason alone.”

This distinction reflects how our attitudes track intentions and behavior in our social practices. Disapproval of certain voluntary self-​regarding behavior differs from moral indignation. Unlike mere disapproval, we’re prone to experience indignation when others violate our own or others’ rights. Shaking our heads in frustration is a more apt response to seeing someone hurting themselves, but we don’t merely shake our heads in frustration when we experience rights violations. Spooner and Lewis’s distinction suggests that our legal system should recognize distinctions implicit in our social morality. A vice is a (possibly wrongful) injury one does to oneself, but none of us have rights that others refrain from vices toward themselves. By contrast, a crime is a wrong that infringes on another’s moral claims without their consent.

Making vices into crimes also has consequences that undermine the professed purposes of criminalization. Simply put, making vices illegal does nothing to address the motivational source of allegedly vicious behavior, whether it be attraction to substance abuse, gambling, prostitution, laziness, gluttony, and so on. Even assuming all these are true vices and objectively bad—itself a debatable claim—people engage in them because they see them as quick ways to obtain pleasure or relief from pain. Criminalizing vices won’t suppress the motivation to seek them, especially for those who may be addicted. Their inelastic demand for objects of addiction represents strong preferences regardless of legality. To change such behavior reliably, people must first want to change. Coercive sanctions alone—whether fines or the threat of jail—won’t remove the underlying preferences.

This essay will focus on three kinds of purportedly vicious behavior: substance (ab)use, gambling, and sex work. Most people who engage in these do so recreationally, not addictively. Nonetheless, we will see that criminalizing such behavior frustrates the preferences of normal users and may do the most harm to addicts.

Dio Lewis recognized pathologies with dependence on legal sanctions over voluntary efforts at reforming behavior: “the Prohibitory Law is a great obstacle in the path of the temperance movement, and … further progress is impossible until the law is abolished. [W]e cannot employ with the needed fervor those social, moral, and religious forces which alone can triumph over human vices.” Lewis identified how the root of human improvement must go through the voluntary decisions comprising habituation, perhaps inspired by others’ persuasion or example. The real work of change belongs to everyone’s agency, not external sanctions.

He and Spooner further recognized the “public choice” dynamics in play. Many political and law enforcement actors lack an incentive to reduce vices. If anything, they want to keep the vicious activity going so they can increase their power, metrics, and budgets. As Lewis argues, “all this corruption grows out of the attempt on the part of the legislature to do what they have no business with. Let them confine themselves to providing methods of punishing criminals, and leave the people’s business to the people themselves, and they would quickly win the confidence and respect of the public, and all this miserable lobbying, and jobbery, and corruption would cease.”

As Smith observes, if we allow a social problem to become the object of law, then political actors will compete for votes by posing as champions of the cause in question. This would “needlessly divide those who favor the cause of temperance reform, and create a situation in which false promises and misrepresentations are rampant, as political factions criticize other factions for their incompetence in solving the problem while offering their own agendas as the only solution.” Often a draconian “solution” prevails as the most salient one. Rather than touting harm reduction, and despite its many longstanding failures, politicians insist that the “War on Drugs” must continue until every disapproved substance is eradicated forever, while knowing that eradication wouldn’t happen even if they wanted it.

Spooner holds that no one is morally perfect, so if a government were to punish all vices impartially, “everybody would be in prison for his or her vices,” leaving “no one left outside to lock the doors upon those within.” Only one possibility remains: a government might punish only select vices—typically those preferred not by the wealthy and powerful but by the poor and unconnected. But it is “utterly absurd, illogical, and tyrannical” for some people to punish the vices of others while demanding liberty for their own. This sounds more like feudalism than a system of equal freedom.

Moreover, Spooner observes that “people differ so radically in their characters, needs, and circumstances that it is usually impossible to say that a given action will increase the happiness of every person who takes it. What is good for one person may not be good for another.” Vices sometimes do not reveal themselves as harmful until after a long time, while virtues “often appear so harsh and rugged” that their good results may not be immediately apparent. The only way a person can gain practical—not mere theoretical—knowledge of virtues and vices is by exercising the “right to inquire, investigate, reason, try experiments, judge, and ascertain for himself, what is, to him, virtue, and what is, to him, vice.” An individual’s practical knowledge must come from effort and experience, not passive obedience or reading books. In Aristotelian terms, the conclusion of a practical syllogism is action, not another statement.

Smith captures the gist of Spooner and Lewis’s view: “suasionists (in contrast to prohibitionists) argued that vices could be corrected only by the light of truth, and that to punish sinners for their poor judgments—which is a weakness inherent in human nature—runs contrary to Christian principles. True virtue comes from within. To compel a person to abstain from alcohol [or drugs] may change his behavior from fear of punishment, but it does not constitute authentic moral reform. Unless a change comes from the reason and conscience of the individual it does not possess moral value.” Mere behavior modification may only reflect a coerced response to external pressure rather than a voluntary commitment to personal improvement.

Some in the temperance movement defended prohibition on the sole grounds of preventing harm to others, but Spooner finds this rationale unpersuasive. Substance addiction doesn’t increase actual crimes since the vast amount of violence and fraud is perpetrated by sober people. While they may be more prone to committing petty crimes in an altered or anti-​social state of mind, addicts, by their very nature, lack the clear-​headedness and sense of caution needed to plan and execute elaborate criminal schemes. These latter crimes are so dangerous that few perpetrators would risk undertaking them while drunk or stoned.

Gambling has long been targeted for prohibition, and cases for banning or regulating its current forms have found renewed enthusiasm. Betting apps, like FanDuel and DraftKings, and prediction markets, like Kalshi and Polymarket, are fueling an alleged crisis in gambling addiction comparable to opioid addiction. These apps are frictionless, which makes gambling easier than ever. One can parlay a number of bets from one’s phone on countless livestreamed outcomes about any number of topics. One no longer faces costs such as amassing cash, traveling to a casino, visiting the tables, etc. These apps are most popular among young men from lower income backgrounds.

Criminalizing these sites may bring more harm than good. Whatever one thinks of gambling, many enjoy it responsibly. Prohibitionists should at least provide clear evidence that “moderate” use is the exception, and harmful abuse is the norm. As with drug or alcohol use, recreational gambling in moderation may not be a problem. Bans and heavy regulations would prevent a lot of responsible users from an activity they find enjoyable, without the compensating benefits of reducing harms when many addicts seek unaccountable black markets instead.

Addicts are often trying to fill a void, which signals a deeper problem of which any given vice is just a symptom. The gambling apps do not have irresistible powers any more than drugs themselves do. Still, perhaps certain demographics are more vulnerable to gambling addiction. Alternatives to outright prohibition could include raising the legal gambling age to twenty-​five, when the average adult brain is fully developed. Lawsuits could hold companies responsible for not using verification processes that confirm users meet this age. Perhaps torts could threaten them with having to pay back underage users’ losses—including punitive damages for more egregious breaches. Public shaming of companies that resist these measures or maintain disreputable practices might also be effective. Of course, if we now live in a world where shame matters little, gambling is the least of our concerns.

Willpower to quit may be unrealistic, especially if the short-​range costs of betting are so low, and the dopamine benefits high enough, that they distract from the longer-​range feedback loop needed to make informed decisions about financial risks when the dopamine wears off and one’s cash is depleted. Despite this, someone who wants to quit gambling can take many other steps that don’t require unusual levels of effort. They can uninstall apps and lock out future downloads or get a dumber phone that doesn’t support the apps. They can use accountability mechanisms such as public posts of their losses. They can stay off websites that nudge these apps in the algorithms, or they may adjust the algorithms. (Libertarians may debate whether tech companies should be required to offer clear ways for users to make these adjustments, so they’re not as easily subject to algorithmic influence.) They can establish voluntary precommitments to timeouts after a certain number of bets are made or a certain amount of money is lost. They can commit to a lifetime self-​ban that websites, like some casinos, are contractually obligated to respect. Of course, they can also find pursuits that give a dopamine rush without the downsides.

None of these measures are foolproof, but the addict is still an adult who must take responsibility rather than relying only on others to save him. And while some people will succumb and lose their life savings nonetheless, they can serve as cautionary tales of how not to handle money. Regardless, advocating bans or heavy regulations goes after the symptoms of deeper pathologies rather than addressing the pathologies themselves. Simply banning these services doesn’t make the addiction go away—it could merely drive people to find even worse ways to channel their addictive tendencies. FanDuel is better than the mafia.

Elizabeth Nolan Brown defends an important distinction between sex trafficking and voluntary prostitution. Sex trafficking involves the sexual exploitation of children or the use of force, fraud, or coercion on adult victims. A paradigm instance of sex trafficking is that the object of sex does not want to be involved at all. By contrast, voluntary prostitution involves consensual activity between adults. We may still disapprove of prostitution, but this disapproval is based on controversial value judgments about intimacy and shouldn’t be confused with indignation at the clear rights violations involved in sex trafficking.

Ideological reasons for opposing all sex work range from religious views about bodily sanctity to secular feminist concerns about patriarchy and systemic exploitation. The “sanctity” view often claims that affection and intimacy are not commodities. They reflect deeply personal elements of us, perhaps blessings from God or nature, that should not be treated as transactional items for sale. Love should be given unconditionally, as a gift, because its expression is inherently directed at the recipient for who they are, not how much cash they have on hand. 

However, this metaphysical constraint on love may have little to do with sex. The sanctity view presumes sex is only about expressing love, but it can be for other reasons. Many who solicit sex workers are seeking a particular experience they may be otherwise unable to obtain. Some are lonely and seeking interactions that may not always be carnal. Love and friendship are unsellable in principle, but thrills or comfort and attention can be for sale.

Perhaps the main concern is with any corrosive effects on the parties to sex work transactions, but that depends on whether such effects are predictable or likely. These consequences are anyway separate matters from whether the arrangements as such are always wrong.

A premise of the feminist patriarchy concern is that no one would freely choose the life of a prostitute. These people are either groomed from youth to believe they are mere sex objects, or they’re trafficking victims, or they’re stuck in debt bondage. Of course, we should help those who might be in these situations because they aren’t making free and voluntary decisions, but surely these bads don’t exhaust the possible reasons for becoming a sex worker. Such assumptions betray a lack of empathy to understand the context and incentives of another person’s choices. Good money may be the main reason many women and men pursue sex work. From a legal if not moral standpoint, the response to that reason should be that it’s not our place to judge, whatever we may think of sex work. Does patriarchy alone encourage supply, making it only seem okay to purchase sex when it really isn’t? This presumptuous attitude suggests, without evidence, that all who seek prostitution are predators and all sex workers are so helpless that they can’t make informed and voluntary decisions for intelligible reasons.

Criminal prohibition that conflates voluntary prostitution with sex trafficking has provided law enforcement and relevant non-​profits a large influx of taxpayer funds, with an incentive to inflate sex work’s frequency or exaggerate its degrading conditions. Getting accurate data on the phenomena is tough since so much of it is forced underground by illegality. In an ironic self-​fulfilling prophecy, prohibition increases the odds of sex work being driven to bad conditions with unsavory actors. Law enforcement also has incentives to pursue minor offenders as low-​hanging fruit to satisfy political metrics, while often leaving more serious offenders untouched. As with substances and gambling, these bans don’t reduce demand for sex work, so one would think a genuine concern with workers’ safety would motivate doing no further harm. Cracking down on safe prostitution makes the industry far more dangerous and distracts law enforcement from pursuing real criminals, like traffickers.

Vices are “victimless crimes,” that is, they are not crimes warranting imprisonment for rights violations or refusal to pay civil penalties. It would be odd for defenders of vice prohibition to claim that their main concern is with the self- and other-​regarding harms of addiction but then not consider the ancillary negative effects of enforcing such prohibitions.

Being under correctional control is being subject to great limits on one’s freedom. It brings burdens like mounting bail and legal fees. The poor and marginalized may only have access to overworked public defenders, who often save resources through plea deals rather than going to trial. People lose jobs and income from imprisonment. Even those found not guilty may be stuck with legal fees since the government isn’t on the hook.

Besides financial harm, the stress of prosecution and confinement takes a toll on prisoners, many of whom already suffer from mental health issues. One faces separation from loved ones and persistent loneliness, not to mention the inhuman conditions in many jails and prisons. Nonviolent offenders are sometimes housed with violent ones, exacerbating fears of assault or extortion by inmates or corrupt correctional officers. Many prisons lack adequate provision of educational, vocational, or rehabilitation services that may prepare receptive inmates for life after release. Felony convictions make it much more difficult to find stable post-​release employment matching one’s skills and experience. Lack of opportunities and loss of self-​respect increase the odds of recidivism. It’s almost as if the criminal justice system has perverse incentives to let this happen.

Removing access to the offensive activity may motivate change in habits, but that assumes many prisons themselves don’t have a black market of contraband drugs, gambling, or sex work. For those already motivated to change their habits, incarceration is unnecessary at best. For those not so motivated, incarceration can exacerbate self-​harm by keeping the underlying pathologies in place. People can’t be so lost to addiction that they lack agency or opportunities to improve on the outside yet magically gain these through incarceration and its increased costs. We do hear stories of people who are “scared straight” by their time in prison, but these people were already motivated enough to change. Scaring won’t work on the unmotivated—it may just increase their vice and criminality once they feel they have little to lose.

We must also consider whether the negative effects of criminalized behavior outweigh the harm some people endure when someone they know is incarcerated. This “drifting of costs” to family or friends of incarcerated people includes lost intimacy and emotional support, lost income and other financial benefits, lost assistance in caring for children or other family members, and increased worry about the imprisoned loved one’s safety and mental health.

Some may argue that substance abuse is a major factor behind domestic violence. If so, we can’t easily distinguish between certain vices and resultant crimes. But correlation isn’t causation. While a large portion of those who abuse their partners also abuse substances, most people who abuse substances don’t abuse their partners.¹

Over a century ago, Lewis and Spooner recognized what more of those in power should acknowledge today. We must keep vices distinct from crimes rather than conflate them in a mishmash of half-​baked social diagnoses. Hopefully the future brings increased emphasis on harm reduction and personal agency rather than prohibition and social control. Government is already over-​extended, and it does a poor job of catching those who perpetrate crimes with real victims, so it shouldn’t waste resources on those committing victimless crimes.