The Lost War on “Victimless Crimes”
Why this matters for community and family policy
If I could go back 25 years and give the Andy of 1999 a glimpse of the policy world in 2024, his biggest surprise might be conservatives’ loss on “victimless crimes.”
I think his second biggest surprise would be that conservative leaders of 2024 simply don’t talk much about their loss on victimless crimes.
“Victimless crimes” refers to activities that have long been criminalized even though those directly involved are typically willing participants.1 The list generally includes drug use, prostitution, gambling, pornography, homelessness, loitering, and various forms of lewdness.
Some argue that “victimless crime” is a contradiction in terms: If there is no victim then there should be no crime. A libertarian might say, “Mind you own business. If I want to spend my money on gambling, I should be free to do so. If they want to use narcotics, so be it. Live and let live.”
Isn’t that a convincing argument? If America believes in liberty, shouldn’t we just allow people to do as they choose so long as they aren’t harming others?
What’s the counterargument? Why should a “victimless” activity be a crime?
There are many reasons. They include: victimless crimes aren’t actually victimless; the social fabric can be damaged in the long-term even if no individual is hurt in the short-term; it is legitimate, even good, for a state or local government, through their police powers, to regulate social-moral matters; the social and economic costs of not regulating some behaviors are higher than the costs of regulating them.
Instead of and explaining and defending each argument in turn, I’ll offer a quick paragraph that combines them. It aims to make a general point while also showing why America’s political right (excepting libertarians) has generally favored criminalizing some of these activities. Here goes:
Liberty is not the only value in a society. Policy also has to care about order and the common good—that means helping take care of individuals and preserving an environment that enables individuals, families, and communities to flourish. Long experience teaches us that certain behaviors are bad for individuals even if some individuals want to engage in them in the moment. Experience also teaches us that the ripples of certain behaviors hurt other people and hurt society. Those behaviors make it harder for all of us to thrive. This kind of moral thinking is simply codified age-old wisdom. Over centuries, societies have learned that certain acts demean human dignity, prey on the already vulnerable, keep us away from nobler purposes, serve as a gateway to worse behavior, and make common life more difficult. By banning certain acts, yes, we are curtailing liberty, but that cost is insignificant compared to the benefits realized by kids, adults, families, and towns.
It’s easy to see why this counterargument has been associated with American conservatism. It is based on an understanding of human beings’ inherent flaws. It is built on experience not theory. It enables a community to protect its citizens and its way of life. It recognizes that human flourishing should sometimes take priority over individual freedom.
When I was a kid, college student, and then young adult, I understood that opprobrium was attached to certain behaviors AND that many governing leaders saw that this opprobrium, including regulation, was in service of the public well being AND that conservative leaders were likelier to favor criminalizing (or at least stigmatizing) such detrimental acts.
I also assumed that such opprobrium and regulation would last forever.
I was wrong.
For most of American history, casinos were rare; into the late 20th century, they were only allowed in Nevada and Atlantic City, NJ. Today, including tribal and commercial casinos, there are about 2,000, and they are legal in 44 states. A quarter century ago, drug legalization was not taken seriously in most serious circles. Today, 31 states have decriminalized marijuana, and Oregon decriminalized hard drugs (then reconsidered). Sports betting had been illegal nationwide until 2018. Now it’s legal in 38 states. Just try to get away from the commercials. There are 19 legal brothels in Nevada, and there are efforts to decriminalize prostitution. Pornography law is complicated. But OnlyFans generated more than $6 billion last year. Pornhub is the fourth most visited site in the US—behind only Google, YouTube, and Facebook.
This would have floored the 1999 Andy. After being told all of this, I’m sure he would’ve assumed that the conservative public leaders of 2024 were working overtime to reverse these trends. That Andy was shaped in an era when right-of-center leaders regularly talked about the corrupting influence of and the social damage done by obscene lyrics and Bill Clinton’s escapades. In that era, many conservatives were concerned about depictions of gambling, prostitution, and drinking, much less drug use, on television and in film. In 1993, Bill Bennett’s The Book of Virtues was published.
I’m sure those who focus on politics will have smart things to say about how these trends intersect with the rise of Donald Trump, Barstool conservatism, and warped views on masculinity among some young conservatives.
Yes, some of this is cultural. But I want to note that governing decisions have played a role.
There is no doubt that the last 25 years have seen big changes in other aspects of public life. But many of those were the result of court decisions. SCOTUS ended Roe and affirmative action, protected religious liberty and expanded the protections of the Second Amendment, and scaled back the administrative state. The judiciary often led the political branches in these areas. So too with same-sex marriage. It was primarily the state court system and federal district courts first and then SCOTUS that brought about this sea change.
In other instances, big social or international changes have taken place without massive governing activity. China has risen as a power, and Russia is a renewed menace. Labor-force participation rates have fallen; deaths of despair have climbed. But we’ve yet to see a major governing response to such things.
However, decisions about gambling, drugs, and similar matters have been made primarily by our elected branches. In other words, the work of politics, public persuasion, and policy has mattered. But the right—or at least the old right—hasn’t meaningfully influenced events.
But it could.
One final thought. All of this has been happening at the same time as the right’s renewed interest in family policy (a subject I’ve written about a lot). Many conservatives have been drawn to the subject because of the recent steep decreases in births and marriage rates. But conservative policy people have generally focused narrowly on interventions related to male employment (e.g., re-shoring manufacturing jobs, tariffs) or proposals that give families money (e.g., child tax credits, universal basic income, baby bonuses).
I’m looking for a GOP leader to talk about community health and family life without veering toward statist interventions like industrial planning and massive welfare programs.
I’d love to hear a conservative governing leader say something like, “It’s time for us to take better care of America’s families and communities. That’s why I want to talk to you about the mistakes we’ve made in the last generation related to drugs, gambling, and other vices that make it harder for families and communities to thrive.”
Much could be said about the “willing” part of this statement. Is an addict willfully choosing to use heroin? Are all prostitutes willfully engaged in that work? There is not enough space here to deal with that issue fully.