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Victimless Crimes: a Proposal to Free the Courts

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Victimless Crimes: a Proposal to Free the Courts Seattle University School of Law Digital Commons Faculty Scholarship 1-1-1973 Victimless Crimes: A Proposal to Free the Courts Robert C. Boruchowitz Follow this and additional works at: https://digitalcommons.law.seattleu.edu/faculty Part of the Courts Commons, and the Law and Society Commons Recommended Citation Robert C. Boruchowitz, Victimless Crimes: A Proposal to Free the Courts, 57 JUDICATURE 69 (1973). https://digitalcommons.law.seattleu.edu/faculty/668 This Article is brought to you for free and open access by Seattle University School of Law Digital Commons. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of Seattle University School of Law Digital Commons. For more information, please contact [email protected]. Victimless Crimes: A Proposal to Free the Courts Robert C. Boruchowitz Victimless "crimes"-acts that are pres- bringing the case to court. In some cases, ently outside the law but which have no administrative agencies could provide rem- readily identifiable victim-account for al- edies other than punishment. most half of the cases handled by United Society may want to proscribe trading in States courts.' They include behavior which vice, for example, running a brothel, with- may reflect illness and which requires out making prostitution by an individual medical and therapeutic attention (such illegal. Society may want to punish the as drunkenness), as well as behavior con- procurer (or the narcotics syndicate op- demned as varying from moral or social erator) but not the prostitute (or the heroin standards and leading to harmful behavior user). (such as vagrancy and curfew violations). If society wishes to limit victimless be- If the burden of regulating this type of havior in order to protect persons (from the behavior were removed from the criminal dangers of opiates, for example) the be- justice system, perhaps one half of the havior should be decriminalized and subject courts' current case load could be elim- to regulation. Laws which merely seek to inated. Furthermore, persons caught in de- regulate morals are ineffective, weaken the viant conduct could receive help rather system of law, and ought to be repealed. than imprisonment. The overcrowding of jails and the building of new facilities at VAGRANCY costs as high as $62,000 per prisoner,2 There are several major categories of vic- would be made less necessary by removing timless crime. We will examine these below, from them the thousands of prisoners who beginning with one of the oldest, vagrancy, have harmed no one and stolen nothing. a "crime" for which more than 100,000 per- Much victimless behavior could be de- sons were arrested in 1970.3 criminalized, removed from the criminal Vagrancy "is a crime of status or personal statutes. Other acts considered more so- conditions: the most common elements are cially dangerous could be limited. Certain idleness, lack of visible means of support, behavior could be handled administra- and lack of a regular place of abode . tively. Like loiterers and nocturnal juveniles, va- 4 For example, sales of marijuana could grants are considered probably criminals." be legal to persons of a certain age if sold Vagrancy originated as an offense in feudal by a licensed dealer, as alcohol is sold England, in an effort to ensure a constant now. It might be possible to impose fines local labor supply. Vaguely-worded va- for some types of behavior without actually grancy statutes are used as a catch-all to 1. President's Commission on Law Enforcement and the 3. Papachristou v. City of Jacksonville, 405 U.S. 156, 169, Administration of Justice, THE CHALLENGE OF CRIME IN A n. 15 (1972). FREE SOCIETY, 20 (1967). 4. Moore, Vagrancy and Related Offenses, 4 HARV. CIVIl. 2. Wall Street Journal, August 25, 1971, at 1. RIGHTS L. REV. 291, 292 (1969). HeinOnline -- 57 Judicature 69 1973-1974 Elderly transients soak up the winter sunshine in the lion house of Chicago's Lincoln Park Zoo. Photo by Paul Sequeira. arrest political activists, persons merely sus- pected of past crimes, or persons who may be deemed undesirable. Vagrancy statutes often work counter to Vagrancy ordinances the efforts of welfare and job training pro- grams as it is difficult for convicted va- give unfettered discretion grants to find employment. Some recent welfare legislation makes vagrants eligible to the police for job training and income maintenance in dealing with programs and demonstrates "the availability of viable, less restrictive alternatives more the poor rationally related to preventing crime among the poor."5 These statutes also raise ques- and unpopular. tions regarding vagueness, equal protection and due process, as they proscribe a status that the criminal cannot always voluntarily abandon. In the recently decided case of Papa- christou v. City of Jacksonville, the supreme court held that the Jacksonville, Florida, ordinance prohibiting vagrancy was uncon- stitutional. 6 The ordinance was ruled void for vagueness as it failed to give fair notice that the conduct was forbidden and because it encouraged arbitrary and erratic arrests and convictions. The ordinance punished normally innocent activities such as "night- walking" and living on the earnings of one's 5. Moore, supra note 9, at 305. 6. 405 U.S. 156 (1972). 70 Judicature/Volume 57, Number 2/August-September 1973 HeinOnline -- 57 Judicature 70 1973-1974 wife or children as well as "wandering or strolling" without lawful purpose. Justice Douglas, writing for a unanimous court (Powell, J. and Rehnquist, J. not par- ROBERT C. ticipating) called these activities part of the BORUCHOWITZ "amenities of American life" which compiled the research for contrib- this article while he was ute to feelings of independence, creativity, a Herbert Harley Fellow and self-confidence. He stated that these of the American judicature Society. He is activities have "honored the right to be non- a graduate of the conformists" and "dignified the right of Northwestern University dissent". 7 Vagrancy ordinances, he contin- Law School class of 1973. ued, give unfettered discretion to the police in dealing with the poor and unpopular. A vagrancy prosecution "may be merely the most vagrancy prosecutions. Other catego- cloak for a conviction which could not be ries of victimless crime remain, providing obtained on the real but undisclosed grounds markets for organized crime and causing for the arrest"." injustice to individuals. One of these cat- Justice Felix Frankfurter, dissenting in egories is gambling. Winters v. New York, which struck down a statute used to punish a magazine, said: GAMBLING Gambling has been described as "the Definiteness (in vagrancy statutes) is de- greatest source of revenue for organized signedly avoided so as to allow the net to be crime. '12 Annual revenues from illegal gam- cast at large, to enable men to be caught who 13 are vaguely undesirable in the eyes of police bling may exceed $7 billion, much of and prosecution...9 which is invested in "legitimate" business operations. Gambling statutes are only spo- Vagrancy statutes often require that the radically enforced. But many poor persons accused make an explanation of his be- are arrested, if sometimes only for harass- havior to police or to the court. This can ment purposes, on city and state gambling lead to a violation of the Fifth Amendment charges. Almost 70 per cent of persons ar- 14 privilege against self-incrimination, and it rested for gambling are black. is contrary to the holding of the Supreme As with other categories of victimless Court in Miranda v. Arizona that arrested crime, prohibiting gambling does not work. persons need not answer questions posed by Several states, including New York, New 10 the police. Jersey and New Hampshire, have legalized Professor Anthony Amsterdam states: lotteries. Nevada features Las Vegas and "More than any other legislation on the other centers of legalized gambling. In New books, these (vagrancy laws) are the York, where off track betting is legal, the weapons of the establishment for keeping president of the city-run Off Track Betting 1 the untouchables in line."' Corporation would like to divert to a city- Papachristou may lead to elimination of managed program the estimated $600 mil- lion wagered per year on the numbers 7. Id. at 164. game, and to halt the estimated $78 mil- 8. Id. at 169. 9. Winters v. New York, 333 U.S. 507, 540 (1947). lion illegal profits and $40 million paid in 10. Miranda v. Arizona, 384 U.S. 436 (1966). bribes to police and others. 5 11. Amsterdam, Federal ConstitutionalRestrictions on the Punishment of Crimes of Status, Crimes of General Obnox- Some state legislatures question whether iousness, Crimes Displeasing to Police Officers, and the Like, further legalization would reduce the role 3 CRIM. L. BULL. 205, 233-241 (1967). There are other rights and freedoms involved as well. Several courts have held of organized crime or the amounts of money that an arrest for grounds under an unconstitutional vagrancy 12. Morris, "The Law is a Busybody", New York Times statute, does not necessarily invalidate a subsequent search. Magazine, April 1, 1973, at 60. See, e.g., Ricehill v. Brewer, 459 F. 2d (8th Cir. 1972); 13. Id. Klingler v.U.S., 409 F. 2d 299 (8th Cir. 1969), cert. denied 14. Id. at 68. 396 U.S. 859 (1969). 15. Id. at 60. HeinOnline -- 57 Judicature 71 1973-1974 spent on gambling by lower income persons. However, states probably will continue to legalize gambling if only to increase state revenues. In the process, police efforts to stop gambling can be reduced, and, if the states can run systems that are as attractive to bettors as the existing illegal ones, revenue for organized crime will be reduced. DRUNKENNESS Violations of drunkenness statutes ac- count for about one-third of all arrests in the United States.
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