Skip to main content

Advertisement

SpringerLink
Log in

Vice Crimes and Preventive Justice

  • Original Paper
  • Published:
Criminal Law and Philosophy Aims and scope Submit manuscript

Abstract

This symposium contribution offers a reconsideration of a range of “vice crime” legislation from late nineteenth and early twentieth century American law, criminalizing matters such as prostitution, the use of opiates, illegal gambling, and polygamy. According to the standard account, the original justification for these offenses was purely moralistic (in the sense that they criminalize conduct solely or primarily because it is intrinsically wrong or sinful and not because of its negative effect on anyone) and paternalistic (in the sense that they limit persons’ liberty or autonomy supposedly for their own good); and it was only later, in the late twentieth century, that those who supported such legislative initiatives sought to justify them in terms of their ability to prevent harms. This piece argues that the rationale for these vice crimes laws was much more complicated than has traditionally been thought, encompassing not just moralistic justifications but also a wide range of harm-based rationales—similar to those that underlie modern, technocratic, “preventive justice” legislation involving matters such as anti-social behavior orders, sex offender registration, stop-and-frisk policing, and the fight against terrorism.

This is a preview of subscription content, log in via an institution to check access.

Access this article

Log in via an institution

Price excludes VAT (USA)
Tax calculation will be finalised during checkout.

Instant access to the full article PDF.

Institutional subscriptions

Similar content being viewed by others

Notes

  1. For a recent discussion, see Stuart P. Green, Foreword: Symposium on Vice and the Criminal Law, 7 Criminal Law and Philosophy 213 (2013).

  2. For example, Ashworth and Zedner cite the 1872 Mail Fraud statute as one early example of a preventive-type offense. See Andrew Ashworth and Lucia Zedner, Just Prevention: Preventive Rationales and the Limits of the Criminal Law, in Philosophical Foundations of Criminal Law (R.A. Duff and Stuart P. Green, eds.) (Oxford: OUP, 2011), 284 n. 9; see also Frederick Schauer, The Ubiquity of Prevention, in Andrew Ashworth, Lucia Zedner, and Patrick Tomlin (eds.), Prevention and the Limits of the Criminal Law (Oxford: OUP, 2013), 10, 19 (citing Jeremy Bentham, Principles of the Penal Code, book 4, chapter 15, in The Theory of Legislation (Richard Hildreth & Etienne Dumont, eds.) (London: Routledge, 1931 edition), 425–27)).

  3. Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. Criminal Law & Criminology 148 (1999).

  4. E.g., Ashworth and Zedner, Just Prevention, above; G.R. Sullivan and Ian Dennis, Seeking Security (Oxford: Hart, 2012); Andrew Ashworth and Lucia Zedner, Prevention and Criminalization: Justification and Limits, 15 New Criminal Law Review 542 (2012); Ashworth, Zedner, and Tomlin, above.

  5. Harrison Narcotics Act of 1914, Public Law No. 223, 63rd Cong.; White-Slave Traffic (Mann) Act of 1910, ch. 395, 36 Stat. 825; codified as amended at 18 U.S.C. §§ 2421–2424; Morrill Anti-Bigamy Act of 1862, Sess. 2., ch. 126, 12 Stat. 501; Edmunds Act of 1882,22 Stat. 30 (1882), codified at 48 U.S.C. § 1461 (repealed 1983); Anti-Lottery Act of 1890, 28 Stat. 963; Immigration Act of 1907, ch. 1134, 34 Stat. 898; Volstead Act of 1919, Stat. ch. 83, 41 Stat. 305–323 (rendered unconstitutional by 21st Amendment). Most of these statutes are discussed in William J. Stuntz, The Collapse of American Criminal Justice (Cambridge, MA: HUP, 2011), which originally stimulated my interest in them.

  6. The description of opium, morphine, heroin, and cocaine use contained in this paragraph is derived from Margaret P. Battin, et al., Drugs and Justice (New York: OUP, 2008), 31–32.

  7. The Sears Roebuck catalogue, for example, distributed to millions of Americans homes, famously offered a syringe and a small amount of cocaine for $1.50.

  8. Battin, above, 32.

  9. Battin, id. (quoting Troy Duster, The Legislation of Morality: Law, Drugs, and Moral Judgment (New York: Free Press, 1970), 11).

  10. Battin, id.

  11. Edward Huntington Williams, The New York Times (Feb. 8, 1914).

  12. See, e.g,, statement of Rep. Thomas Sisson (“The purpose of this bill—and we are all in sympathy with it—is to prevent the use of opium in the United States, destructive as it is to human happiness and human life”), quoted in Thomas C. Rowe, Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole (Binghamton, NY: Haworth Press, 2006) 15.

  13. Harrison Narcotics Act of 1914, Public Law No. 223, 63rd Cong.

  14. Webb v. United States, 249 U.S. 96, 99 (1919).

  15. Stuntz, above, 175–76.

  16. 258 U.S. 250 (1922).

  17. Id., 252.

  18. See Richard Nixon, Remarks on Signing the Comprehensive Drug Abuse Prevention and Control Act of 1970 (Oct. 27, 1970), http://www.presidency.ucsb.edu/ws/?pid=2767 (Accessed: Sept. 20, 2013); Michael Javen Fortner, The Carceral State and the Crucible of Black Politics: An Urban History of the Rockefeller Drug Laws, 27 Studies in American Political Development 14 (2013).

  19. 501 U.S. 957, 996 (1991) (Kennedy, J., concurring).

  20. Id., 1002–03 (citations omitted).

  21. James Q. Wilson, “Against the Legalization of Drugs,” Commentary (Feb. 1990), http://www.commentarymagazine.com/article/against-the-legalization-of-drugs/ (Accessed: Sept. 20, 2013).

  22. Id.

  23. Stuntz, above, 169.

  24. The history of prostitution legislation in England reflects a very different path. The mid-nineteenth century saw epidemic levels in the incidence of venereal diseases among members of the British armed services, owing largely to the use of prostitutes. In response, Parliament enacted a harsh series of civil statutes known as the Contagious Diseases Acts (of 1864, 1866, and 1869), which allowed police officers to arrest prostitutes in certain ports and garrison towns, and subject them to compulsory checks for venereal disease. Women who were found to be infected were confined in lock hospitals for up to 3 months, until “cured.” The acts were widely criticized as demonstrating the double standard that applied to men and women in Victorian society: the heavy burdens they entailed were imposed solely on prostitutes; no provision was made for the examination of their clientele. In response to pressure from early feminists, moralists, and civil libertarians, the acts were repealed in 1886. For an account, see Jeremy Waldron, Mill on Liberty and on the Contagious Diseases Acts, in Nadia Urbinati and Alex Zakaras (eds.), J.S. Mill's Political Thought: A Bicentennial Reassessment (Cambridge: CUP (2007), 11. Cf. David Dixon, From Prohibition to Regulation: Bookmaking, Anti-Gambling, and the Law (New York: OUP, 2006) (late nineteenth and early twentieth century advocates for English betting regulation used moralist rhetoric, but were equally concerned with the harmful effects of gambling on working-class communities.

  25. David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago: University of Chicago Press, 1994), 17–19.

  26. Id., 33–34, 65–66.

  27. Peter de Marneffe, Liberalism and Prostitution (New York: OUP, 2010), 60 (quoting 1911 Chicago Report).

  28. As the social reformer Maude Miner put it in her 1916 book, Slavery of Prostitution: A Plea for Emancipation, a slavery even worse than that which existed in the antebellum South “exists in our midst today. Women are held in moral and spiritual bondage which deadens and destroys their highest powers,” (quoted in de Marneffe, above, 59).

  29. See Richard Zacks, Island of Vice: Theodore Roosevelt’s Doomed Quest to Clean Up Sin-Loving New York (New York: Doubleday, 2012).

  30. White Slave Traffic (Mann) Act, Pub. L. No. 61-277, §2, 36 Stat. 825 (1910), codified as amended at 18 U.S.C. §§ 2421–2424. For a detailed history of the Act, see Langum, above.

  31. See White Slave Traffic, H.R. Rep. No. 61-47 (1909); White Slave Traffic, S. Rep. No. 61-886 (1910).

  32. 18 U.S.C. § 2421. The “immoral purposes” language was borrowed from the 1907 amendments to the 1875 Immigration Act, ch. 1134, §39, 34 Stat. 898. The two laws are discussed in Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756 (2006).

  33. Jim Leitzel, Regulating Vice, 133 (New York: Cambridge U. Press, 2008).

  34. Id.

  35. 242 U.S. 470, 485 (1917). See also Dubler, above, 793–94.

  36. Gale's Major Acts of Congress: Mann Act, http://www.answers.com/topic/mann-act (Accessed: Sept. 20, 2013).

  37. For a helpful summary of the literature, see Martha C. Nussbaum, “Whether from Reason or Prejudice”: Taking Money for Bodily Services, 27 The Journal of Legal Studies 693, 710–23 (1998); see also Michelle Madden Dempsey, Rethinking Wolfenden: Prostitute-Use, Criminal Law, and Remote Harm, Criminal Law Review 444 (2005). The idea that moralistic reasons could not justify laws against prohibition was expressed most famously in the Wolfenden Committee Report on Homosexual Offences and Prostitution (HMSO, 1957).

  38. Patrick Devlin, The Enforcement of Morals (Oxford: OUP, 1965), 12.

  39. Debra Satz, Markets in Women’s Sexual Labor, 106 Ethics 63, 70 (1995) (subjecting such “essentialist” arguments to critique).

  40. Andrea Dworkin, Prostitution and Male Dominance, in Life and Death (New York: Free Press, 1997), 139, 141, 145.

  41. See, e.g., Ashworth and Zedner, Prevention and Criminalization, above, 542–43.

  42. Id.

  43. Harcourt, above, 113–16.

  44. Although Robert George may come close. See Robert P. George, Making Men Moral: Civil Liberties and Public Morality (New York: OUP, 1993) (arguing for law as a way to maintain a moral environment conducive to virtue and inhospitable to at least some forms of vice).

  45. Whether the connection between conduct prohibited and harms caused was sufficiently strong to justify criminalization is, of course, a different question, one which is dealt with below.

  46. I am particularly grateful to Antony Duff for his help with the formulation of the discussion in this section.

  47. See, e.g., the critique by A.P. Simester, Prophylactic Crimes, in Seeking Security, 59–78.

  48. As Doug Husak puts it, “[d]rug use per se is almost never harmful to others in the absence of further acts the drug user performs or fails to perform.” Douglas N. Husak, Drugs and Rights (Cambridge: CUP, 1992), 178.

  49. The social science literature on the connection between drug use and crime commission is immense. For a sampling, see Center for Substance Abuse Research, Marijuana Most Commonly Detected Drug Among Male Arrestees Tested by ADAM II in Five U.S. Sites (July 2013), http://www.cesar.umd.edu/cesar/cesarfax/vol22/22-30.pdf (Accessed: Sept. 20, 2013); Christopher J. Mumola and Jennifer C. Karberg, U.S. Department of Justice, Office of Justice Programs, Drug Use and Dependence, State and Federal Prisoners, 2004 (October 2006); Bradley T. Conner, et al, Examining Self-Control as a Multidimensional Predictor of Crime and Drug Use in Adolescents with Criminal Histories, 36 Journal of Behavioral Health Services and Research 137 (2009); Shane Darke, et al., Comparative Rates of Violent Crime Among Regular Methamphetamine and Opioid Users: Offending and Victimization, 105 Addiction 916 (2010); Avelardo Valdez, et al., Aggressive Crime, Alcohol and Drug Abuse, and Concentrated Poverty in 24 U.S. Urban Areas, 33 American Journal of Drug and Alcohol Abuse 595 (2007); J. Matthew Webster, et al, Substance Use, Criminal Activity, and Mental Health Among Violent and Nonviolent Rural Probationers, 30 Journal of Addictions & Offender Counseling 99 (2010).

  50. For a review of the neuroscientific literature on the connection between drug use, violence, and other social pathologies, see Carl Hart and Charles Ksir, Drugs, Society, and Human Behavior (New York: McGraw-Hill, 15th ed. 2012).

  51. See, e.g., Michelle Dempsey, Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism, 158 University of Pennsylvania Law Review 1729 (2010).

  52. Another important purpose is the prevention of disease, though this may be exactly the sort of harm most effectively dealt with through civil regulations requiring health checks, as is done, for example, in Amsterdam and some counties in Nevada.

  53. Gunilla Ekberg, The Swedish Law that Prohibits the Purchase of Sexual Services, 10 Violence Against Women 1187 (2004).

  54. Cf. Policing and Crime Act 2009, s.14 (offender commits offense of paying for sexual services of a prostitute subjected to force if the person makes or promises payment for sexual services and a third person has engaged in exploitative conduct of the prostitute likely to induce or encourage the provision of sexual services).

  55. See Ashworth and Zedner, Just Prevention, above; Ashworth and Zedner, Prevention and Criminalization, above.

  56. Cf. Antony Duff, Criminalizing Endangerment, in Antony Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law (Oxford: Oxford U. Press, 2005), 43.

  57. Philip Jenkins, Moral Panic: Changing Concepts of the Child Molester in Modern America (New Haven: Yale U. Press, 1998); Martha C. Nussbaum, Hiding from Humanity: Disgust and Shame in the Law (Princeton: Princeton U. Press, 2004); Wayne A. Logan, Megan’s Law as a Case Study in Political Stasis, 61 Syracuse L. Rev. 371 (2011).

  58. See generally Charles Whitebread, “Us” and “Them” and the Nature of Moral Regulation, 74 California L. Rev. 361 (2000).

  59. As Stuntz put it, during the Progressive Era, “American criminal law ceased to define the conduct and intent that prosecutors sought to punish, and instead treated crime definition as a means of facilitating arrests, prosecutions, and convictions.” Stuntz, above, 159.

  60. Crime and Disorder Act 1998. For an unusual, and qualified, defense of such two-step prohibitions, see Andrew Cornford, Criminalising Anti-Social Behaviour, 6 Criminal Law and Philosophy 1 (2012).

References

  • Ashworth, Andrew, and Lucia Zedner (2012), Prevention and Criminalization: Justification and Limits, 15 New Criminal Law Review 542.

  • Ashworth, Andrew, and Lucia Zedner (2011). Just Prevention: Preventive Rationales and the Limits of the Criminal Law, in R.A. Duff and Stuart P. Green (eds.), Philosophical Foundations of Criminal Law. Oxford: OUP.

  • Battin, Margaret P., et al. (2008). Drugs and Justice. New York: OUP.

    Google Scholar 

  • Cornford, Andrew (2012). Criminalising Anti-Social Behaviour, 6 Criminal Law and Philosophy 1.

  • de Marneffe, Peter (2010). Liberalism and Prostitution. New York; OUP.

    Google Scholar 

  • Dempsey, Michelle Madden (2005). Rethinking Wolfenden: Prostitute-Use, Criminal Law, and Remote Harm, Criminal Law Review 444.

  • Dempsey, Michelle (2010). Sex Trafficking and Criminalization: In Defense of Feminist Abolitionism, 158 University of Pennsylvania Law Review 1729.

  • Devlin, Patrick (1965). The Enforcement of Morals. Oxford: OUP.

    Google Scholar 

  • Dixon, David (2006). From Prohibition to Regulation: Bookmaking, Anti-Gambling, and the Law. New York: OUP.

    Google Scholar 

  • Dubler, Ariela R. (2006). Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 75.

  • Duff, Antony (2005). Criminalizing Endangerment, in Antony Duff and Stuart P. Green (eds.), Defining Crimes: Essays on the Special Part of the Criminal Law. Oxford: OUP.

    Chapter  Google Scholar 

  • Dworkin, Andrea (1997). Prostitution and Male Dominance, in Life and Death. New York: Free Press.

    Google Scholar 

  • Ekberg, Gunilla (2004). The Swedish Law that Prohibits the Purchase of Sexual Services, 10 Violence Against Women 1187.

  • Fortner, Michael Javen (2013). The Carceral State and the Crucible of Black Politics: An Urban History of the Rockefeller Drug Laws, 27 Studies in American Political Development 14.

  • George, Robert P. (1993). Making Men Moral: Civil Liberties and Public Morality. New York: OUP.

    Google Scholar 

  • Green, Stuart P. (2013). Foreword: Symposium on Vice and the Criminal Law, 7 Criminal Law and Philosophy 213.

  • Harcourt, Bernard E. (1999). The Collapse of the Harm Principle, 90 J. Criminal Law & Criminology 148.

  • Hart, Carl and Charles Ksir (2012). Drugs, Society, and Human Behavior. New York: McGraw-Hill, 15th ed.

  • Husak, Douglas N. (1992). Drugs and Rights. Cambridge: CUP.

    Book  Google Scholar 

  • Jenkins, Philip (1998). Moral Panic: Changing Concepts of the Child Molester in Modern America. New Haven: Yale U. Press.

    Google Scholar 

  • Langum, David J. (1994). Crossing Over the Line: Legislating Morality and the Mann Act. Chicago: University of Chicago Press.

    Google Scholar 

  • Leitzel, Jim (2008). Regulating Vice. New York: CUP.

    Google Scholar 

  • Logan, Wayne A. (2011). Megan’s Law as a Case Study in Political Stasis, 61 Syracuse L. Rev. 371.

  • Nussbaum, Martha C. (2004). Hiding from Humanity: Disgust and Shame in the Law. Princeton; Princeton U. Press.

    Google Scholar 

  • Nussbaum, Martha C. (1998). “Whether from Reason or Prejudice”: Taking Money for Bodily Services, 27 Legal Studies 693.

  • Rowe, Thomas C. (2006). Federal Narcotics Laws and the War on Drugs: Money Down a Rat Hole (Binghamton, NY: Haworth Press).

    Google Scholar 

  • Satz, Debra (1995). Markets in Women’s Sexual Labor, 106 Ethics 63.

  • Schauer, Frederic (2013). The Ubiquity of Prevention, in Andrew Ashworth, Lucia Zedner, and Patrick Tomlin (eds.), Prevention and the Limits of the Criminal Law. Oxford: OUP.

    Google Scholar 

  • Simester, A.P (2012). Prophylactic Crimes, in G.R. Sullivan and Ian Dennis, Seeking Security: Pre-Empting the Commission of Criminal Harms, at 61. Oxford: Hart.

    Google Scholar 

  • Stuntz, William J. (2011). The Collapse of American Criminal Justice. Cambridge, MA: HUP.

    Book  Google Scholar 

  • Sullivan, G.R. and Ian Dennis (eds.) (2012). Seeking Security. Oxford: Hart.

    Google Scholar 

  • Waldron, Jeremy (2007). Mill on Liberty and on the Contagious Diseases Acts, in Nadia Urbinati and Alex Zakaras (eds.), J.S. Mill’s Political Thought: A Bicentennial Reassessment, at 11. Cambridge: CUP.

  • Whitebread, Charles (2000). “Us” and “Them” and the Nature of Moral Regulation, 74 California L. Rev. 361.

  • Wilson, James Q. (1990). Against the Legalization of Drugs, Commentary (Feb. 1990), http://www.commentarymagazine.com/article/against-the-legalization-of-drugs/ (Accessed: Sept. 20, 2013).

  • Zacks, Richard (2012). Island of Vice: Theodore Roosevelt’s Doomed Quest to Clean Up Sin-Loving New York. New York: Doubleday.

    Google Scholar 

Download references

Acknowledgments

I am grateful for the many helpful comments and questions I received from my fellow symposiasts. Special thanks to Antony Duff and Claire Finkelstein.

Author information

Authors and Affiliations

  1. Rutgers School of Law-Newark, Newark, NJ, USA

    Stuart P. Green

Authors
  1. Stuart P. Green
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Stuart P. Green.

Rights and permissions

Reprints and permissions

About this article

Cite this article

Green, S.P. Vice Crimes and Preventive Justice. Criminal Law, Philosophy 9, 561–576 (2015). https://doi.org/10.1007/s11572-013-9260-7

Download citation

  • Published:

  • Issue Date:

  • DOI: https://doi.org/10.1007/s11572-013-9260-7

Keywords

Search

Navigation