What constitutes a crime? A clear and consistent definition has yet to transpire.
There are five types of criminal behaviour: crimes against oneself, or "victimless crimes" (such as suicide, abortion, and the consumption of drugs), crimes against others (such as murder or mugging), crimes among consenting adults (such as incest, and in certain countries, homosexuality and euthanasia), crimes against collectives (such as treason, genocide, or ethnic cleansing), and crimes against the international community and world order (such as executing prisoners of war). The last two categories often overlap.
The Encyclopaedia Britannica provides this definition of a crime: "The intentional commission of an act usually deemed socially harmful or dangerous and specifically defined, prohibited, and punishable under the criminal law."
But who decides what is socially harmful? What about acts committed unintentionally (known as "strict liability offences" in the parlance)? How can we establish intention—"mens rea", or the "guilty mind"—beyond a reasonable doubt?
A much tighter definition would be: "The commission of an act punishable under the criminal law." A crime is what the law—state law, kinship law, religious law, or any other widely accepted law—says is a crime. Legal systems and texts often conflict.
Murderous blood feuds are legitimate according to the 15th Century "Qanoon", still applicable in large parts of Albania. Killing one's infant daughters and old relatives is socially condoned—though illegal—in India, China, Alaska, and parts of Africa. Genocide may have been legally sanctioned in Germany and Rwanda—but is strictly forbidden under international law.
Laws being the outcomes of compromises and power plays, there is only a tenuous connection between justice and morality. Some "crimes" are categorical imperatives. Helping the Jews in Nazi Germany was a criminal act—yet a highly moral one.
The ethical nature of some crimes depends on circumstances, timing, and cultural context. Murder is a vile deed—but assassinating Saddam Hussein may be morally commendable. Killing an embryo is a crime in some countries—but not so killing a fetus. A "status offence" is not a criminal act if committed by an adult. Mutilating the body of a live baby is heinous—but this is the essence of Jewish circumcision. In some societies, criminal guilt is collective. All Americans are held blameworthy by the Arab street for the choices and actions of their leaders. All Jews are accomplices in the "crimes" of the "Zionists".
In all societies, crime is a growth industry. Millions of professionals—judges, police officers, criminologists, psychologists, journalists, publishers, prosecutors, lawyers, social workers, probation officers, wardens, sociologists, non-governmental organizations, weapons manufacturers, laboratory technicians, graphologists, and private detectives—derive their livelihood, parasitically, from crime. They often perpetuate models of punishment and retribution that lead to recidivism rather than to to the reintegration of criminals in society and their rehabilitation.
Organized in vocal interest groups and lobbies, they harp on the insecurities and phobias of the alienated urbanites. They consume ever growing budgets and rejoice with every new behaviour criminalized by exasperated lawmakers. In the majority of countries, the justice system is a dismal failure and law enforcement agencies are part of the problem, not its solution.
The sad truth is that many types of crime are considered by people to be normative and common behaviours and, thus, go unreported. Victim surveys and self-report studies conducted by criminologists reveal that most crimes go unreported. The protracted fad of criminalization has rendered criminal many perfectly acceptable and recurring behaviours and acts. Homosexuality, abortion, gambling, prostitution, pornography, and suicide have all been criminal offences at one time or another.
But the quintessential example of over-criminalization is drug abuse.
There is scant medical evidence that soft drugs such as cannabis or MDMA ("ecstasy")—and even cocaine—have an irreversible effect on brain chemistry or functioning. An almighty row erupted in Britain when Jon Cole, an addiction researcher at Liverpool University, claimed, to quote The Economist quoting the Psychologist", that:
"Experimental evidence suggesting a link between Ecstasy use and problems such as nerve damage and brain impairment is flawed ... using this ill-substantiated cause-and-effect to tell the 'chemical generation' that they are brain damaged when they are not creates public health problems of its own."
Moreover, it is commonly accepted that alcohol abuse and nicotine abuse can be at least as harmful as the abuse of marijuana, for instance. Yet, though somewhat curbed, alcohol consumption and cigarette smoking are legal. In contrast, users of cocaine—only a century ago recommended by doctors as tranquilizer—face life in jail in many countries, death in others. Almost everywhere pot smokers are confronted with prison terms.
The "war on drugs"—one of the most expensive and protracted in history—has failed abysmally. Drugs are more abundant and cheaper than ever. The social costs have been staggering: the emergence of violent crime where none existed before, the destabilization of drug-producing countries, the collusion of drug traffickers with terrorists, and the death of millions—law enforcement agents, criminals, and users.
Few doubt that legalizing most drugs would have a beneficial effect. Crime empires would crumble overnight, users would be assured of the quality of the products they consume, and the addicted few would not be incarcerated or stigmatized—but rather treated and rehabilitated.
That soft, largely harmless, drugs continue to be illicit is the outcome of compounded political and economic pressures by lobby and interest groups of manufacturers of legal drugs, law enforcement agencies, the judicial system, and the aforementioned long list of those who benefit from the status quo.
Only a popular movement can lead to the decriminalization of the more innocuous drugs. But such a crusade should be part of a larger campaign to reverse the overall tide of criminalization. Many "crimes" should revert to their erstwhile status as civil torts. Others should be wiped off the statute books altogether. Hundreds of thousands should be pardoned and allowed to reintegrate in society, unencumbered by a past of transgressions against an inane and inflationary penal code.
This, admittedly, will reduce the leverage the state has today against its citizens and its ability to intrude on their lives, preferences, privacy, and leisure. Bureaucrats and politicians may find this abhorrent. Freedom loving people should rejoice.
