Ethics v. Morals, IV

I want to say some more about ethics, morality, and the law - especially the criminal law.

The other day I blogged about Stacey Anvarinia, the woman who was convicted of felony child neglect for breastfeeding under the influence. A prosecutor who bills himself as American Scold II, excoriated me for it first in a comment and then in his new blog.

He said that my thinking what she did shouldn't be a crime puts me at odds with most of the American people, which may or may not be true and won't cost me sleep either way. And he said that I oppose all criminalization of what might offend "someone's moral sensibility, like murder." That's just silly, but hey, there's no test, and shouldn't be, for who's allowed to mouth off in the blogosphere.

Anyway, while his comments don't particularly disturb me, they do point to an question I've been dancing around for a while now and that I want to start confronting head on: What's the point of criminal law? It's a more complex question, I think, than may first seem, or at least my take on it is. That's why I'm putting this in the context of ethics and morals.

Let's start with some formal stuff.

Crimes are offenses against the body politic. That's why criminal cases have captions like State of Ohio v. Jason Getsy (and remember, it's not too late to write Governor Strickland and urge him to commute Getsy's death sentence) or United States of America v. Timothy McVeigh (it is too late to ask that his life be spared). Criminal cases are different from civil cases where one person or entity sues another claiming some sort of harm (physical, financial, constitutional, whatever) that the courts should remedy.

In every criminal case where there's a victim, there's at least a potential civil case, too. The hardware store sues to recover the value of the stolen property and the broken window The owner sues for the cost to rebuild the house that was torched. The loved ones sue for some sort of compensation for the wrongful death of the murder victim.

Those civil cases are personal. This is what you did to me, and you should pay to make me whole again. The criminal cases with victims are not supposed to be personal. The prosecutor isn't the lawyer or agent of the victim. The prosecutor is the agent of the state and, at least in theory, acts dispassionately, to see that justice is done rather than that the case is won.

The prosecutor's role is the same in so-called victimless crimes. They don't have a civil counterpart as a rule because there's no personal harm that anyone in particular suffers. But they're victimless only in that sense. Crimes, once again, are offenses against the body politic. The public suffers, goes the theory, when the thing is done. And at least in most states today, there are no common law crimes. A thing is only a crime if the legislature (or a local equivalent) says it is.

But what are those so-called victimless crimes? Many are person misconduct offenses. Prostitution, drug possession, underage drinking. When these are consensual, and when nobody is harmed (and if there's harm, that's a different offense), they have no victim unless the body politic itself is harmed.

Then there are ones like bribery. Imagine that you pay the politician $100,000 in exchange for which the politician says he'll vote in favor of the new highway. The thing is that the politician would have voted in favor of the highway, anyhow. The politician thinks the highway is a good idea (and nobody paid the politician off to vote against it.) The politician took a bribe, but it had no effect. Is it a crime? It might be. Should it be? Ah, that's a whole different question. As Molly Ivins liked to report

As they say around the Texas Legislature, if you can’t drink their whiskey, screw their women, take their money, and vote against ‘em anyway, you don’t belong in office.

All of which brings me back to Alberto Gonzales. Yesterday I wrote about him, noting that he has joined the category of those who feel vindicated because there's been a determination somewhere that they didn't commit any crime. And I suggested that you can obey the law and still be a slimeball. Not all misbehavior is criminal. And, for that matter, many things that are criminal may be misbehavior only because they're crimes. (Want to talk about the number of people who think marijuana use should be lawful? Those who think restrictions on handgun ownership are not just unconstitutional but also bad policy? Motorcycle helmet laws? The list goes on.)

As a lawyer, I have a set of ethical rules I'm obliged to obey or be subjected to disciplinary proceedings which could include loss of my license. As I've written here and here and here and here, there are times when the ethical rules of the profession may be in real tension with morality. What to do? How to do it? When? At what risk? The same questions arise in every profession with enforceable ethical rules.

We have the rules, of the professions and of the criminal law, to set boundaries. These things, we (that is, society through elected representatives in the case case of the criminal law, through whatever body adopts and enforces ethical rules in whichever profession is at issue) say, are to be avoided unless there is some specific exemption. And there are penalties for violation.

Fair enough. But do we, should we, legislate against everything of which we disapprove?

I'm told that there's a sociological concept of the "total system" which, as I understand it (and nobody's ever said my understanding of sociology is particularly acute), is a system in which all things are controlled. The military is, I gather, a standard example of a total system. I imagine that a totalitarian state would be, too. But we've made other choices, institutionally, from almost the beginning.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Doesn't matter whether such laws would be a good idea or not, whether some speech is misbehavior or some exercise of religion morally or socially offensive to others. The First Amendment says we can't criminalize those things. (And yes, SCOTUS says that's not always the case and that sometimes we can criminalize them, but that's a different argument.)The Bill of Rights generally is a limitation on the power of the government to do things that it thinks are in the best interest of the nation or its people. There is misbehavior we simply cannot stop, and behavior we cannot start. That's the choice we made.

But the fact that Congress (or your state legislature of city council or medical licensing board) can prohibit (or mandate) something doesn't mean it should.

And so we come full circle. Ought we protect children? Yes. Ought we discourage drunken breastfeeding? Yes. Ought we discourage all sorts of things that are bad for children? Yes. Should parents smoke cigarettes around the kids? No. Should they smoke cigarettes at all, for that matter? No. Should they be made felons for doing those things?

I don't think it's even a close call. But there's room for disagreement. Gotta be that.