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On Victimless Crime Laws: And a Call to Release All Who Have Been Victimzed by Them

In recent months, a Seminar on Prisoners’ Writings has been meeting in Oakland. The idea of this seminar is to take some of the writings of people politicized by imprisonment, and make their insights available to the movements and the general public.

In the discussions in this seminar, the issue of the system of victimless crimes, and victimless crime laws, has arisen. There are two outstanding aspects of this system. The first is that around 70% of all prisoners in the US are convicted of victimless crimes. (Exact figures are unobtainable, but since 1970, when the US prison population was below 300,000, it has been through the “war on drugs,” the “broken window” paradigm, and stop and frisk procedures that imprisonment has risen to almost two and half million. All three campaigns depended almost exclusively on victimless crime laws.) The second is that this system provides the legalist power upon which police impunity, police racial profiling, and police militarization are founded.

The basic character of a victimless crime is that the person charged with a crime has harmed no one. Some might say they harm themselves, but each individual would have to be involved in any discussion of whether that were true or not. Regardless, they are thrown in prison. If imprisonment is based on a “revenge ethic,” it is misplaced with respect to victimless crimes. Since no one was harmed, there is no one to avenge. In effect, those convicted of victimless crimes are themselves the victims. They are victims of the victimless crime law system.

The mythology of imprisonment is that all those in prison are violent offenders, “bad guys” who need to be taken off the streets for the safety and security of the average person. If 70% of all prisoners are there for victimless crimes, then this is worse than a myth. It is a malicious lie.

If, as will be discussed below, the system of victimless crime laws has been used to construct police impunity and militarization, we confront the horrendous irony that social militarization, as a harm to a society’s democratic ethos, is built upon the repression of people who have harmed no one.

Because these convicted people have harmed no one, it is appropriate to call for their immediate release. In fact, justice would demand an end to the government’s “political” victimization of people, and repeal the entire system of victimless crime laws. Indeed, their existence suggests the degree to which this society requires prisoners, signifying an inordinate fragility in its structure of political power.

Victimless Crime Laws and social regimentation

The primary aspect of a victimless crime law is that it relieves the police of the necessity for a complainant in approaching anyone. Insofar as there is no victim, there is no complainant (only possible informers). The ability to dispense with a complainant gives the police autonomy in terms of who to stop, what to use as an excuse for stopping them, and how to treat people.

Police autonomy implies that police suspicion is sufficient to approach and stop a person. Suspicion takes the place of a complaint or of “probable cause,” which police use when they think a crime has been committed. (“Probable Cause” appears in the constitution as a necessary and sufficient condition for issuing a warrant to search a person or premises, as part of a guarantee against unreasonable searches.) To elevate suspicion to the level of “probable cause” renders the police officer’s subjective state “probable cause” itself. The cop carries within him the unconditional authorization to stop a person for any reason, however arbitrary it might be.

When this autonomy and self-authorization is combined with the racism of officers, of police departments, and of the white supremacy at the core of the culture in which they operate, we get “racial profiling” as a manifestation of executive power.

What enhances that power and autonomy is the passage of obedience statutes (at the state and federal level) that require all persons, when approached by the police, to obey all commands or be guilty of “disobeying an officer.” Indeed, the obedience statutes give every police officer the status of a “commanding officer” in a military sense, which essentially militarizes and regiments every police-initiated encounter with a person.

The most immediate effect of these statutes is to criminalize two wholly natural responses by any free and self-respecting person to such an approach, namely, questioning or objecting to the arbitrarity of the stop (by word or action), and defending one’s dignity and self-respect by refusing to comply with an arbitrary, disrespectful, or humiliating command. Dignity and self-respect become illegal if the cop so desires. The cop’s subjectivity, racism, bias, or ego all become elements of law through his person and his actions.

Insofar as each police officer has autonomy, commanding officer status, and probable cause implicit in his personal suspicion, the cop becomes a law unto himself, with the ability to criminalize or wholly dehumanize any individual at will. This is the nature of impunity. It is the existence of a system of victimless crime laws that has thus provided the police with the type of impunity they now have.

Some Examples of victimless crimes:

Drug use – Drug use, like drinking, is a relation of a person to him/herself, a relation to one’s own embodiment, through a substance. The effect the prohibited substance has on a person is not the cause of its prohibition, since legal substances such as alcohol and tobacco have similar effects. Drug use should not be a concern of the law. Instead, addiction should be treated as a medical problem, like alcoholism. The prohibition of drug use is for the purposes of social control. And illicit drugs have no industrial interests, like those of tobacco or alcohol, to prevent their prohibition.

Drug possession – This is the most common charge that has been used to fill the prisons. It criminalizes a person for having certain items of property on their person or in their home. Drug trafficking is a crime because it is an industry that produces enormous profits that cannot be taxed (as in the case of alcohol and tobacco). It cannot be taxed if the state wishes to use possession for the purposes of social control. Possession could not be outlawed without also outlawing trafficking.

Independent sex work – Because women still face personal and institutional marginalization and exclusion in employment and social status, economic and personal survival remain more difficult problems for them than for men. Because of the general objectification of women by patriarchal society, women and their sexuality are commodified, and find ready markets for themselves. Sex work is a relationship between a woman and her own body, whose sexuality and sexual physiology she sells to men. It is often a way of surviving, or maintaining autonomy, when there are no others.

Pimping is not a victimless crime. It is opportuning on the need a sex worker might have for marketing or security against violent men. It extorts money from the worker through that need.

Other forms of victimless crimes might include gambling (again, illegal only when it cannot be taxed), non-profit distribution of drugs (given to friends or acquaintances, or sold at cost), and carrying a gun (generally for self-defense against violent criminals).

There are two other victimless crimes that need to be mentioned. They pertain most directly to the politics of control. They are disobeying an officer, and resisting arrest.

The Victimless Crime law system is what makes racial profiling work

Racial profiling by the police is the process of specially noticing people of color, watching them, and approaching them because they had been noticed. In stopping and interrogating a person of color, the police are searching for a reason to arrest, for some evidence of a victimless crime. It is a process of harassment.

What is race? When one encounters a person, one sees them as being of a certain race only because one has accepted a process of teaching and training to notice them in that way. That training and teaching to notice is produced by a cultural and social history that categorizes and imposes different value on people. It reflects a system of categorizations derived from colonialism, created historically by white people as they seized the land of others, and in the process, defined themselves as white (with respect to the others of color they dominated). It is a history that has produced a language that uses color as racializing rather than as descriptive. What the history also reveals is that white people are not born white; they are made white by white supremacist society. Black people are not born black; they are made black by white supremacist society. Both are racialized by a society that creates its cultural identity in that way. That means that race is not a noun, but a verb. The verb is “to racialize.” It is something that one group of people does ot others. In the US, it is something that white people do to others, racializing themselves as white in the process. When white people enact the racialization of others (occupying the subject position of the verb), they are constructing whiteness with respect to those others who then occupy the object position. The act of noticing (like prejudice) is the result (not the cause) of having established this distinction between oneself as a subject and the others as generalized objects.

Racial profiling reflects this process of racializing (noticing, devaluing, dominating) on a daily basis by the police. The police have become the primary “racializers” of people in the US today through their enactment of the verb “to racialize.”

What has to be understood is that racial profiling is the opposite of law enforcement. In law enforcement, a crime is known to have been committed, and the police search for a suspect to prosecute for the crime. In racial profiling, the police commit an act of suspicion, and then look for (or invent) a crime for the suspect to have committed.

Police racial profiling is empowered by the ability of the police to act on their subjectivity, their suspicion in merely having noticed someone as a person of color. For the culture of white racialized identity, which the police enact and protect, the existence of a person of color is sufficient for suspicion. Their juridical power is given to them by the system of victimless crime laws. Having raised individual police suspicion to the level of “probable cause,” the system of victimless crime laws gives legitimacy in advance to however the cop wishes to victimize the person.

Victimless crime laws, as a system, are what give the police their impunity

Racial profiling is only one element in a domain in which the police now have impunity. Impunity signifies that the cop has becomes a law unto himself. Insofar as all states have passed laws providing what is called a “patrolman’s bill of rights,” they have authorized and legitimized all denial of police accountability to civil society. An officer is answerable only to the department that employs him.

There is a pattern in the unfolding of a police encounter with persons of color in civil society. First, there is suspicion, which is transformed into “probable cause” to investigate, which in turn gives the cop “commanding officer” status. When this leads to an arbitrarity of command given the person stopped (stand where you are, lie down face down on the ground, disrobe, etc.), the cop is providing himself the opportunity to be violent in response to any disobedience, and to arrest the person. This entire sequence is generated wholly by the cop himself, with nothing the person might have done being any reason for it. The cop becomes the situation and the condition, the context, by which the person is criminalized, and rendered a victim of the cop’s judicial operation. If the cop decides to use deadly force, he has simply to state that he felt threatened (as, for instance, if the person turns to walk away).

All this is legitimized by the system of victimless crime laws, as enhanced by obedience statutes.

This system of victimless crime laws has been used to create statistics concerning police stops, which are then presented as signifying a greater degree of crime in a city. On that basis, the police go to the state legislature and request greater appropriations to deal with the “problem.” By these means, the police have become the most powerful political force in every city.

There is no middle ground. If society is to stop its militarization, and curb the colonizing power of police impunity, then the system of victimless crime laws must be expunged. To begin that process, it is proper to call for the immediate release of all prisoners now locked up for victimless crimes.

Their imprisonment is a massive injustice. They have hurt no one. They are in fact the victims of the law.

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Steve Martinot is Instructor Emeritus at the Center for Interdisciplinary Programs at San Francisco State University. He is the author of The Rule of Racialization: Class, Identity, Governance, Forms in the Abyss: a Philosophical Bridge between Sartre and Derrida (both Temple) and The Machinery of Whiteness. He is also the editor of two previous books, and translator of Racism by Albert Memmi. He has written extensively on the structures of racism and white supremacy in the United States, as well as on corporate culture and economics, and leads seminars on these subjects in the Bay Area.

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