If I Were A Prosecutor

The Elliot Spitzer scandal — likely to result in him resigning about an hour (or $4,900, whichever comes first) from the time I write this post — got me thinking. If I were a prosecutor (at any level, be it a local assistant state’s attorney in some rural Tennessee county all the way up to the U.S. Attorney for the Central District of California) sooner or later I would have to confront a significant issue. That is, there are a lot of activities that have been criminalized that I do not think ought to be criminalized.

Soon-to-be-former-Governor Spitzer, for instance, is apparently guilty of exchanging money for sex. He did so while married, which means that he’s having sex with someone who isn’t his wife, but that’s not a concern of the government and as a prosecutor, I wouldn’t see my job as sitting in judgment or seeking punishment for the way someone treats their marriage. And maybe he and his wife had an “understanding” or an “arrangement”; if so, that’s again their business and not the state’s. There’s no state interest there at all (unless there’s a sales tax on services in that state, which I do not believe is the case in New York).

Same thing with drugs. It’s difficult to believe that anyone out there doesn’t know that drugs are risky and potentially harmful to your own body. But why should we save people from themselves? I don’t go out of my way to punish alcoholics for feeding their addictions. Or smokers. I might pity an addict unable to control his actions, I might punish those actions when they create a substantial risk to others, but now I’ve qualified the activity. It’s not a crime to be drunk (or at least, it shouldn’t be). It is a crime to drive while drunk. Same thing for being high, I think. The social harm resulting from driving while stoned is the same as the social harm from driving while drunk; the problem is the driving while intoxicated, not the choice of substance used to create the intoxication.

Now, somewhere along the way, someone decided that the state has an interest in policing morality and in particular in policing sexual behavior, so the act of exchanging money for sex or putting acid in your veins is a crime. I can’t see how the state’s interests are substantially implicated, though. Regulating morality for the sake of regulating morality isn’t a legitimate state interest. Once you accept that an act which hurts no one is morally repugnant to some people and therefore for that reason alone it is a crime, it’s only few a very short steps to a quasi-theocracy in which a council of mandarins passes moral judgment on everything everybody does.

And some states have picked up the ball and run with it. Tennessee, for instance, criminalizes consensual adult incest. Sure, most of us have an automatic ewwww response to that, and I’m in that number. But if you’ve got two consenting adults, why should it be a crime? You don’t have to approve of something in order to realize that it’s not something people should go to prison for doing. If confronted with an adult couple who said that they were brother and sister but having sexual relations on a regular basis, my response would be, “I think that you might want to see a pscyhologist to understand why you’re doing this,” but I think I’d have to leave it at that — and if they didn’t see the pshrink, that really wouldn’t be any of my business.

So that takes me back to the real question — if I don’t see that society has any legitimate interest in regulating or punishing a certain activity, could I prosecute it? I think I’d have to — I just wouldn’t feel very good about it. My client, were I to be a prosecutor, would be the state. The state has the power and the desire to punish certain conduct, and it hired me to achieve that result in court. I’d really feel bad about it, though; sending hookers and johns and college kids smoking dope to jail for doing something I thought was nobody’s business but theirs would leave a bad taste in my mouth. So I’m not a prosecutor.

And that’s why despite my interest in that avenue of career growth, I’ll probably never be a judge, because I’d have a hard time punishing those crimes from the bench, too.