When in doubt, don't imprison
By Scott Sumner
When I was young, we were all taught that people should not be convicted and sent to prison unless they were “guilty beyond a reasonable doubt”. Unfortunately, Americans love sending people to prison, and they violate this maxim every single day.
I’m not one of those people who romanticize prisoners. America does have a lot of crime, and people should go to prison for serious offenses such as rape, robbery, burglary, arson and murder. But they certainly should not be imprisoned for doing things that might not even be serious crimes.
In the US, activities that are illegal in one state might be perfectly legal in another. That’s OK. Federalism makes a lot of sense. It’s not 100% clear whether marijuana should be legal or illegal. It’s not 100% clear whether the age of consent should be 16 or 18. Different states have reached different conclusions, and that’s fine.
What’s not OK is sending people to prison for activities that would be perfectly legal in many other states. Remember, I’m not talking about entirely different cultures such as New Guinea or Turkmenistan, where people have vastly different values. I’m talking about moving from Chicago to Milwaukee, two industrial cities fronting Lake Michigan that are 90 miles apart. Selling pot is legal in Chicago, whereas you could be sent to prison for selling pot in Milwaukee.
In most states the age of consent is 16. But some states have 17 or 18. I have no idea who’s right, but it’s obvious that there is “reasonable doubt” as to where to draw the line; unless you think the US contains many states where lawmakers make obviously wrong decisions. But if you have that little faith in lawmakers, should we really be sending 2 million people to prison?
There’s no getting around the fact that if lots of states view an activity as perfectly legal, then there is reasonable doubt as to whether people deserve to be sent to prison for engaging in that activity, in any state. It’s not enough that juries find a person to have done some activity “beyond a reasonable doubt”, it’s also essential that juries conclude that the thing they did is a serious crime beyond a reasonable doubt.
So does that mean we must end federalism? Not at all. Rather it means that when there is doubt as to whether an activity is a crime, it should be punishable with a fine. We already do that for speeding, and many other activities where states disagree as to exactly where to draw the line.
People often make the argument that switching from prison to fines would favor the rich. Rich people could easily pay the fine for smoking pot, while the poor would struggle to do so. (Note that many people who make this argument also favor high taxes on cigarettes, which completely contradicts their argument.)
This is a bad argument for two reasons. First, in our system the rich have an easier time purchasing yachts, BMWs, vacations in St. Bart, and fancy French dinners, which is as it should be. They have an easier time paying parking tickets and speeding tickets, which is as it should be. We use fines for all sorts of offenses that are not serious enough to justify prison. Fines should reflect both the damage done by the offense, and the probability of being caught. That’s a feature, not a bug.
Second, prison is nowhere near as egalitarian as it seems. While in theory a rich and poor drug user are equally likely to go to prison, the system has intentionally been set up to make it vastly more likely that a poor drug user will go to prison. In some cases this bias is so obvious as to be embarrassing, as back when the punishment for crack cocaine (used by the poor) was much higher than for powder cocaine. I believe that issue was recently fixed, but that was never the primary inequity.
Low-income people are much more likely to sell a small amount of drugs on the side, to get some money to support their habit. Rich people don’t need to do this. When lawmakers discovered this difference, they made the penalty for selling drugs vastly higher than the penalty for consuming drugs. This was to ensure that the upper middle class and rich people were not accidentally ensnared in a drug war aimed at the poor. No prison for “Karen”.
From a logical perspective, the penalty for use should be higher than for selling drugs. Obviously the drug industry cannot exist without both buyers and sellers, so in that sense the two activities are equally culpable. But sellers are arguably more blameless as they are motivated by money, whereas buyers are motivated by consumption. And the typical person is more addicted to money than to drugs. That’s why professionals often give up drugs as they get older. If it’s a choice between giving up cocaine and losing a cushy Wall Street job, most people will choose to go straight. The lure of drugs is strong for some; the lure of money is even stronger for almost everyone.
If I drive by a pot store in Orange County it all looks so “normal”. But I always force myself to think about people locked up in some prison in Mississippi for doing the exact same thing—selling pot. Maybe a young single mom that was pressured by her boyfriend to sell some pot, or to help with a delivery. Can we say beyond a reasonable doubt that she is deserving of spending years in prison?
PS. Some people argue that the people in jail for drug offenses would do other bad things if drugs were legalized. If so, it’s odd that the murder rate in America doubled after Prohibition was enacted and then fell in half after Prohibition was repealed.