The introductory paragraph in this National Review article caught my eye:
There’s a game prosecutors play. Let’s say I suspect X committed an armed robbery, but I know X is dealing drugs. So, I write a search-warrant application laying out my overwhelming probable cause that X has been selling small amounts of cocaine from his apartment. I don’t say a word in the warrant about the robbery, but I don’t have to. If the court grants me the warrant for the comparatively minor crime of cocaine distribution, the agents are then authorized to search the whole apartment. If they find robbery tools, a mask, and a gun, the law allows them to seize those items. As long as agents are conducting a legitimate search, they are authorized to seize any obviously incriminating evidence they come across. Even though the warrant was ostensibly about drug offenses, the prosecutors can use the evidence seized to charge robbery.
The article itself is focused on prosecutorial abuse, but my interest lies elsewhere. I’d like to talk about the throwaway line that cocaine distribution is a minor crime. Is that true?
I don’t see why it should be a crime at all. But does society view it as a minor crime?
Here are the penalties for cocaine distribution in Alabama:
Trafficking | In Alabama, it’s illegal to sell, manufacture, delivery, or otherwise bring into the state illegal drugs, including cocaine. Trafficking of cocaine is a Class A felony, but the punishment depends on the amount of coke sold or intended to be sold or transported. The mandatory minimum sentences are:
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That doesn’t seem minor!
The NR article is not focused on cocaine distribution. But in writing the article the journalist had to quickly come up with a minor crime, to contrast with armed robbery. It seems like cocaine distribution was the first thing that popped into his head.
Here’s a question to think about. Should we criticize the reporter for falsely assuming that cocaine distribution is a good example to use for a minor crime, or should we criticize the state of Alabama for penalizing perpetrators of a minor crime as if it were a major crime?
Here’s another question. How reliable is our intuition as to the severity of any given crime? To answer that question, let’s think about another crime—statutory rape. This crime occurs when an adult has sex with a person below the age of consent. But just as with our drug laws, states don’t seem to agree as to the appropriate cutoff point for adulthood:
Blue states have a 16-year age of consent, brown states have a 17-year cutoff, and in green states the age of consent is 18. (And notice that there’s no strong correlation with political tendencies in each state.)
Europe has somewhat lower ages of consent:
In dark blue counties like Britain and Spain the age of consent is 16. In light blue countries like Sweden and France it’s 15. And in teal countries like Germany and Italy it’s 14. (Ireland has 17 and Turkey has 18.) As in the US, the pattern seems almost random.
While I have no idea what figure is appropriate, several points are clear. There is an enormous difference between an age of consent of 14 and 18. It seems rather implausible that the optimal cutoff point would vary that much between two western countries. My conclusion is that either much of Europe has legalized outrageous crimes, or much of the US is imprisoning people that have not committed serious crimes for long periods of time.
Thus, just as with our drug laws we should not trust our intuition about sex crime laws. Those intuitions are likely correct in some places and incorrect in others. In some countries prostitution is legal, whereas in others it is illegal. Someone must be wrong!
Unlike drug and sex crimes, all developed countries ban murder, forcible rape, armed robbery, car theft, arson, tax fraud, kidnapping and a host of other crimes. The punishments may differ, but all of these acts are widely recognized as being crimes.
But sex and drugs are different. Some regions allow acts that are illegal in other areas. Even more surprisingly, the gradation in penalties is generally quite abrupt. Ex ante, you might expect that there would be slight differences in penalties between regions—analogous to the US giving a driver going 85 mph a $200 fine while Germany allows speeding. Not so. Actions like selling pot and sex with a teenager are either completely legal, or else are treated as such serious crimes that prison sentences are appropriate. I don’t know of a single jurisdiction that gradually stiffens the penalty as the sex crime gets worse. In other words, one doesn’t see something like:
$1000 penalty for sex with a 17-year old
A week in jail for sex with a 16-year old
A month in prison for sex with a 15-year old.
A year in prison for sex with a 14-year old.
(I’m not suggesting those punishments are appropriate, just making the observation that it’s odd that activities on either side of an arbitrary line are viewed so radically differently—either perfectly fine or serious crimes.)
Similarly, if selling pot is completely legal in 19 states, you might (ex ante) expect the penalty for selling pot in the other 31 states to be rather modest. But it isn’t. Marijuana sellers often serve long prison terms.
I encourage people (including myself) to not trust our own intuition about sex and drug crimes. The wildly inconsistent way that these crimes are treated in various states and countries provides abundant evidence that the intuition of many people is unreliable.
For underage sex, utilitarianism might suggest the sort of gradated penalties discussed above. But one must be careful with financial penalties. There’s a famous story that when a day care center imposed financial penalties on parents that were late in picking up their kids, it led to even more examples of lateness. (On the other hand, if the penalty is equal to the inconvenience imposed on day care providers, then who cares?) In the case of sex crimes, a financial penalty might lead some adults to view sex with teenagers as a sort of legalized prostitution, something that could be paid for. (The famous Epstein case is worth thinking about in this context.) But again, if the penalty equals the expected harm done (adjusted for risk of being caught) then are our intuitions correct?
I don’t have any good answers on the age of consent, but the arbitrariness of our sex and drug laws makes me uncomfortable. Something is probably wrong, but it’s hard to know what approach is right.
It’s also worth thinking about why these laws are so arbitrary. One possibility is that once it’s decided that a certain sex act or drug use should be criminalized, no legislator wishes to stand up and suggest the penalty is too high. If you suggest that 6 years in prison for car theft is too much, and 1 year is appropriate, no one will suspect you have a secret desire to steal cars. But what legislator wishes to suggest that 6 years in prison is an excessive penalty for sex with a 15 year-old? Your colleagues might give you a “funny look”.
PS. For similar reasons, whenever I read a range of estimates of the death toll from some political atrocity, I tend to privately lean toward the lower estimates. Who wants to stand up and suggest that the Chinese government killed 800 people in Tiananmen Square, not 3000? Who wants to suggest the Great Leap Forward killed 20 million rather than 40 million? As a result, when there’s a great deal of uncertainty the larger estimates will usually tend to gain more traction. (To be clear, I don’t believe there’s much uncertainty about the Nazi Holocaust.)
PPS. In European countries where the age of consent is 14, there is often a stricter limit (16 or 18) for people in a position of trust, such as teachers. And European countries have some other odd quirks that Americans might view as “eye-opening“.
READER COMMENTS
ee
Sep 15 2022 at 3:40pm
I don’t trust men who take jobs where they work with children (with some exceptions). There are countless cases of them using their access and authority to touch or have sex with their charges. Even in my childhood I was aware of several cases. The most outspoken critics of age of consent laws are male teachers. Thanks for being yet another male teacher interested in this issue.
I’ve seen age of consent laws weaponized against gay couples who were close in age and met in school. Ideally judges would not be capable of that.
Philo
Sep 15 2022 at 3:42pm
“(To be clear, I don’t believe there’s much uncertainty about the Nazi Holocaust.)” But there is *some* uncertainty, as there is about all historical occurrences, and your post suggests that the standard estimate of the death toll is at least slightly too high. As you note, this is dangerous territory.
Scott Sumner
Sep 17 2022 at 3:52pm
Is that your claim?
Philo
Sep 17 2022 at 5:10pm
That the standard estimate of the death toll is (perhaps only very slightly) too high? Well, isn’t that an implication of your post?
Scott Sumner
Sep 19 2022 at 1:55am
No, I said exactly the opposite:
“As a result, when there’s a great deal of uncertainty the larger estimates will usually tend to gain more traction. (To be clear, I don’t believe there’s much uncertainty about the Nazi Holocaust.)”
If X, then Y.
Not X.
I thought philosophers were good at logic. 🙂
Philo
Sep 15 2022 at 3:45pm
Holocaust Mitigator!
MarkW
Sep 15 2022 at 3:48pm
With respect to statutory rape, my sense is that the severity of punishment is too great, which is consistent with U.S. approaches to criminality and also with our general infantilizing of teens. However, I will say that at least at this point most states have adopted ‘Romeo and Juliet’ laws that decriminalize sex between teens who are close together in age (even if one or both are otherwise underage). I believe many European countries have such laws as well, so the age of consent isn’t actually fixed in either the U.S. or Europe.
Jose Pablo
Sep 15 2022 at 5:37pm
I don’t know what the reporting and clearing rates are for statutory rape, but very likely when analyzing those rates:
a) they will vary widely in different jurisdictions
b) the ex-ante “expected punishment” (which is the relevant variant if the law is to serve as a deterrent) is much (very much) less severe that what the law says.
[Thinking twice, maybe is debatable if the “expected punishment” is the relevant variable. Depending on your risk aversion, your worst-case scenario can be more relevant]
Scott Sumner
Sep 15 2022 at 10:56pm
I’ve never understood the rationale for Romeo and Juliet laws. Why does both being underage make the crime less severe?
I’d actually have a bit more sympathy for some gender discrimination in the law, as women face the unique risk of getting pregnant. (Not saying there necessarily should be a difference, but it seems more logical than the other sort of discrimination.)
MarkW
Sep 16 2022 at 7:56am
Why does both being underage make the crime less severe?
Because people’s consciousness have been shocked by criminal punishment (including a stunted future due to a lifetime on a sex offender registry) meted out to, say, a 16-year-old for having sex with his 15-year-old girlfriend. People feel much differently about that vs a 30-year-old having sex with a 15-year-old.
I’d actually have a bit more sympathy for some gender discrimination in the law, as women face the unique risk of getting pregnant.
I don’t agree. Men face the unique risk of 20+ years of child support. Women have options when it comes to unwanted pregnancies, men don’t. When they were teens, I worried more about my son than my daughter in this respect. In some cases, boys have been required to pay child support even when they were victims of statutory rape themselves.
BC
Sep 16 2022 at 10:20am
“People feel much differently about that vs a 30-year-old having sex with a 15-year-old.”
I think that was the point of Scott’s question. If statutory rape is a crime because sex is harmful to minors, then what difference does it make if the perpetrator is also a minor? Two 15-yr olds having sex with each other would both be harming each other, like two people in a fight could both be guilty of assault. (Of course, a juvenile perpetrator could still be punished less harshly than an adult, but that’s different from viewing the crime itself as less severe.)
MarkW’s answer is probably correct. The point of statutory rape laws may be to punish adults, specifically, for having sex with teens. But, that would suggest that much of the laws’ motivation has more to do with punishing deviant sexual behavior rather than protecting teens from harm. Of course, it wasn’t too long ago that many people viewed sex between two adult males as even more deviant and worthy of at least social, if not criminal, punishment than sex between an adult and a consenting 17-yr old of the opposite sex.
Scott Sumner
Sep 17 2022 at 3:31am
This is also my view–Mark’s claim doesn’t have any impact on the severity of the crime, rather the severity of the punishment.
I suspect that what we are talking about here is that society is confused on this issue, and the confusion shows up in seemingly irrational distinctions.
Jose Pablo
Sep 15 2022 at 5:26pm
Very interesting.
A little bit off topic, but there is another, related, issue where people intuitions also differ quite substantially from reality: clearance rates.
Only 1 in 3 robberies get cleared (by arrest or by “exceptional means” according to the FBI. 2018 figures). And this is using “reported robberies” as a denominator. Once you take into account that half of the robberies are not reported, only 1 in 6 “actual” robberies lead to an arrest. And once you take into account that not all arrest lead to jail sentences, your “expected serving time” is, very likely, around 10% of whatever is written in the law (and in these figures below average IQ robbers are, very likely, overrepresented, so, if you are a smart robber …)
For “murder and nonnegligent manslaughter” the clearing rates are around 60% and only around 60% are reported (?? I find this figure very surprising! … maybe it is due to the fact that somebody else has to report your murder … gosh! people ARE lonely!). So around 1 in 3 murders got cleared. Your expected serving time for murder should be around 25% of what the law says (once you take into account the probability of getting a jail sentence once arrested)
For “rape” 1/3 of these crimes got cleared in 2018 and the reporting ratios are around 40% so only 2 in 15 rapes got cleared.
I think people intuition on clearing rates greatly overestimate the ability of the government to perform this task. Maybe there is room for improvement in the design of the incentive system for the activity of clearing crime.
john hare
Sep 15 2022 at 5:56pm
There is a lot of self righteous indignation about underage that doesn’t seem to square with history. There were a lot of marriages well below the current age of consent. Jerry Lee Lewis and a 13 year old cousin. Many historical figures similar.
One guy got prison for attempting contact (sheriff sting) with a 14 year old. A lot of people were going on about he should know better, and he was raised better than that, child molester, etc. I knew his parents that got married when 18 and 13 with her parents consent. They drove to Alabama to get married. Seems a bit of a disconnect.
As a teen, I thought a lot of young girls were attractive, as a grandfather, I feel differently.
Michael Rulle
Sep 16 2022 at 7:53am
By coincidence, just before reading this essay, I was looking at crime rates in the US versus other countries. The US has high crime rates. But one would have to analyze actions which are crimes in US but not crimes elsewhere to get a sense of the true differences.
Still, violent crime rates in US had declined significantly (but still higher than other western nations) from 1991 to 2015, crimes per 100,000 declined from 798 to 386 according to Statista. That seems ridiculously high.
Selling drugs is not a violent crime—-but one assumes the illegality of drugs creates violent crimes. I do not know how many violent crimes derive from Drugs.
Legalizing drugs will lower crime rates, but there will still be crime related to selling drugs illegally. For example, one can buy OxyContin and their cousins illegally. In fact, it is illegal to buy Oxy—-if not prescribed. But a ton is sold w/o prescriptions.
JS Mill wrote on this subject—against drug usage but for legality. If I am guessing ——which is just a a flat out guess——I wonder if our crime rates are really that much higher that other nations. And if so, why? It seems impossible —-Singapore outlaws drugs—-maybe the punishment keeps the crime rate low.
I have no idea—-
Thomas Lee Hutcheson
Sep 16 2022 at 8:01am
Great observations.
Two comments on level of punishment and reasons for difference. Both involve equilibrium effects. 1) The aggregate costs of a large large, unrestricted cocaine/prostitution market might be seen as large and so high penalties are enacted which effectively reduce the market to such and extent that marginal acts of cocaine sales/prostitution are innocuous. 2) The costs could vary by jurisdiction.
Phil H
Sep 16 2022 at 10:05am
“I encourage people (including myself) to not trust our own intuition about sex and drug crimes.”
Or indeed, any crimes. I think if you dig into the details of what constitutes a class 1 crime vs a class 2 crime or a grand crime versus ordinary crime or a felony versus a misdemeanour (pick your terminology to suit your local legal regime), you’ll find absurdities everywhere.
I absolutely agree that the legal details of how crimes are defined and categorised bears little relation to our moral intuitions. But that’s a function of big, society-sized systems, not a problem with any specific system; nor is it a good reason not to have systems. It *is* a good reason to keep working on systems, progressively ameliorating the worst consequences of the blunt tools that legislation offers.
Arqiduka
Sep 17 2022 at 12:46am
The graduated punishment approach seems to make the most sense but gets complicated really quickly as you need to account for the age of the alleged offender as well.
In any case, that’s a typical example of a reform an economics will make honestly but the public will react with indignation too, chiefly I think since this will be assumed as the start of the slippery slope.
TGGP
Sep 17 2022 at 2:00am
There’s a famous story that when a day care center imposed financial penalties on parents that were late in picking up their kids, it led to even more examples of lateness
.
Readers of EconLog should know not to trust that story.
TGGP
Sep 17 2022 at 2:01am
Hmm, I tried to put the top paragraph in a blue block quote, but all it did was add a period on an empty line after it.
Jon Murphy
Sep 17 2022 at 10:37am
Even if that particular example is shaky, the overall point remains. There are numerous other famous cases where attempts to stop an activity lead to its encouragement
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