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Sunday, August 02, 2015

Sex, Drugs and Other Vices

I had the great pleasure of participating on a SEALS panel this morning discussing prostitution, prison sex, drugs, sin taxes and vice in general.  Perfect material for a Sunday morning, right? Seth Stoughton (South Carolina) organized this great panel and Alex Kreit (Thomas Jefferson), Frank Snyder (Texas A&M), Carissa Hessick (Utah), Doug Berman (OSU), Tessa Davis (South Carolina), Suzan Rochelle (Stetson), Arnold Lowey (Texas Tech), Brenda Smith (American U.), Susan Rozelle (Stetson), Caprice Roberts (Savannah) and Andy Wright (Savannah) and some others I am forgetting participated...sorry guys)

What did I learn about vice? Too much to share but I want to highlight a few things.  First of all, what is vice?  Several people commented that this would be a good thing to start off with but we were all so eager to dive into the substance of various vices that we didn't spend a lot of time discussing this.  Seth Stoughton, I think, said it best when he commented that vices are consensual crimes or things that society deems "icky".  So you think of a drug transaction--that is consensual.  Also, prostitution, is consensual, though illegal in many jurisdictions. Similarly, prison sex (between guards and inmates) while illegal, can be consensual.  And so on.

There are several difficulties about prosecuting and investigating and generally dealing with vice crimes, and my conclusion after the panel discussion was that we don't emphasize vice crimes enough in criminal law or in general in law school curriculum, even though drugs, alcohol and sex crimes are very common in most jurisdictions.  A lot of basic criminal law courses don't cover rape at all or possession (drugs, guns, porn) when these are extremely common criminal issues.

  A couple thoughts about this:

1. Vice crimes involve a lot more discretion by police than other crimes.  When there is a murder, police often have no choice but to intervene and often to apprehend and arrest a suspect due to public outrage.  When drugs are sold consensually, most of the time no one finds out.  Even when police are aware of drug transactions, they often use discretion not to arrest individuals due to a number of factors. Similarly with instances of prostitution.  My research, and other research shows that indeed an area of racial bias is in arrests for drug crimes.  I would imagine that it could be similar for other vice crimes, though I have not seen studies on this topic.  Overall, I would think it makes sense to pay close attention to racial and other bias with policing of vice crimes more than any other type of crime.  Which is another reason that we should teach students about these crimes in law school.

2. Vice crimes are generally dealt with on a sub-national level (ie they are matters left to smaller entities like counties, cities, villages) and this should be considered when dealing with these issues on a broader level. Carissa Hessick brought up this excellent point and it deserves some thought.  Often times in law teaching we focus on federal law over state law--often assuming that it is better or more important, or maybe because we are so much more familiar with it--and sometimes rely on state law but rarely if ever do we look at county differences or local treatment of issues.  This problem is persistent in criminal law as well as other fields and deserves some thought.

Just a few thoughts, I don't think I did this excellent panel justice in a single post, but I thought these insights I gained from the panel were worth sharing.

Posted by Shima Baradaran Baughman on August 2, 2015 at 05:02 PM | Permalink


Orin, my original thought was the same that vice crimes were dealt with at least largely on the federal level, thinking about drugs as well as prohibition. But interestingly, after prohibition, states and localities have made a lot of criminal laws dealing with alcohol. I happened to live in a state that has many such laws including where alcohol can be poured (behind a curtain only in restaurants), where and when it can be bought (in state liquor stores and only before 10pm) and so on. Anyway, I think is more of a mix now.

Brad, I agree with your thoughts that prison sex seems a lot more like statutory rape or non-consensual sex than it does a more clear vice sex crime like prostitution.

Posted by: Shima Baradaran | Aug 4, 2015 12:08:36 AM

I don't think guard/prisoner sex is properly categorized as a vice crime. Rather I'd say it is punished even where consensual because of the difficulty of separating those instances from the non-consensual cases. Given the perceived ratio between the two, undercriminalizing was considered the greater evil as compared to overcriminalizing.

Posted by: Brad | Aug 3, 2015 1:53:09 AM

I'm not sure it's true that vice crimes are generally dealt with at a sub-national level, at least any more than most other crimes. Perhaps the single most significant era of vice crime enforcement was Prohibition, which was of course at the federal level -- even requiring a federal constitutional amendment to start it and another to end it.

Posted by: Orin Kerr | Aug 2, 2015 11:08:50 PM

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