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Demystifying the Law: Decriminalization versus Legalization (Part II)

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By Dr. Gary L. Deel, Ph.D., J.D., Faculty Director, School of Business

In the first part of this article series, I explained the difference between decriminalization and legalization and what these two legislative actions mean in terms of recognizing wrongs within the criminal justice system. But questions emerge as to how these two changes actually differ in effect.

Society’s Attitudes toward Criminal Behavior

In the first article, I mentioned how Vice President-Elect Harris has advocated for the decriminalization of prostitution. But why is Harris advocating decriminalization instead of full legalization and what might the actual differences be in practice?

To answer these questions, we need to look at how society regards behavior classified according to different levels of criminal severity. For example, if we look at murder, we know that murder is classified as a serious felony.

Because most of society agrees that murder without extenuating circumstances is wrong and because sane people are generally not naturally inclined to murder each other, most people recognize the authority of the law here and abide by it. Anyone who might be tempted to commit murder may be reasonably dissuaded by the severity of the consequences, which often include the possibility of life imprisonment or even execution, depending on the jurisdiction and circumstances.

Now let’s look at the minor civil misdemeanor of jaywalking. In principle, jaywalking is as illegal in the eyes of the law as murder.

However, jaywalking is regularly committed throughout the United States with very little regard for its illegality. For instance, I grew up in New York state just north of the city, and we visited the “Big Apple” often.

From my experience, I can tell you that jaywalking is as common in New York City as hot dog stands and sassy taxi drivers. This behavior is likely a product of pedestrians rationalizing several considerations:

  1. Jaywalking is generally employed as a means to more efficiently traverse a city on foot, so the aim is to maximize the efficiency of one’s time and energy. Jaywalking is never done with an aim to hurt anybody.
  2. Jaywalking is almost always a victimless crime. If there is a victim, it is usually the jaywalker himself (after being hit by a moving vehicle), so the choice to commit an illegal behavior here is reasoned by a pedestrian as a simple assumption of risk.
  3. Jaywalkers know that even if they are caught committing the offense, there is no risk of serious penalties like arrest and incarceration (barring other circumstances). The worst they might encounter is a civil citation.

Indeed, it’s not at all rare for NYPD officers to witness pedestrians committing the crime of jaywalking right before their very eyes — many New Yorkers are brazen jaywalkers — but decline to address it in any way. Why? Many law enforcement officers recognize that it’s unlikely any amount of policing will ever effectively contain or control this pedestrian behavior. And as the saying goes, they usually have “bigger fish to fry.”

Of course, law enforcement officers are always within their rights to cite a pedestrian for jaywalking if they want to. The point is that they generally just don’t, because this behavior is so common and so benign (relative to the other incidents they handle) that many people would view a serious crackdown on it as almost laughable. In fact, comedian Hannibal Buress committed several minutes of a stand-up routine to this very notion in a story he told about jaywalking in the city of Montreal.

To be clear, I am not encouraging jaywalking, or the commission of any crime, or the neglect of criminal behavior by law enforcement in any way. I am simply using jaywalking and murder as points of comparison to demonstrate how differently society looks at crimes depending on their perceived severity and immorality.

But now we have to ask: Is there a material difference between the way that society views legal conduct and the way that it views conduct that is technically illegal but only at the level of a civil misdemeanor? To put it in the context of our jaywalking example, what percentage of people would like to jaywalk but do not because of its illegality?

This question is difficult to answer, as it’s obviously impossible to know exactly how many more people might be crossing streets outside of designated intersections unless we actually legalized the conduct and then measured the difference. But if my intuition and experience in large cities is any judge, I would guess that very few people are actually deterred by the civil misdemeanor classification of the conduct.

If people want to jaywalk and they see a value in it, they do it. I’ve lived in and around large cities my entire life, including New York, Orlando, and Las Vegas. I have never met a person who was reluctant to jaywalk over fear of the legal consequences.

So Why Would Vice President-Elect Harris Want to Advocate the Decriminalization of Prostitution?

Now we can return to the question of why Vice President-elect Harris — or anyone for that matter — might advocate a decriminalization rather than legalization argument. It’s difficult to say for sure, but we can speculate.

In the case of politicians like Harris, there is always a political consideration to positions taken, and so it’s possible that Harris might be using a more conservative approach to the subject of prostitution so that she does not alienate important constituencies. To be fair, Harris might also see a benefit to a reduced offense classification in her experience as a prosecutor and an attorney general that isn’t obvious to the rest of us.

One thing that I’m confident is driving her position on decriminalization is the awareness that prostitution’s current criminal classification as a serious crime (often a felony) doesn’t deter people from engaging in the behavior in nearly the same way as occurs with other crimes like murder. As I discussed in my 2019 article series, the respect that society affords to the laws governing these two crimes is very different for a number of reasons, including the facts that sane people are far more inclined to have sex than kill each other, and people generally recognize a far greater moral turpitude with murder than with prostitution.

What Would Happen if Prostitution Was Decriminalized?

So what might happen if prostitution is decriminalized as Harris has proposed? It’s difficult to predict all of the different ways in which this change would alter the status quo.

It’s possible that such a change could increase prostitution activity, which could potentially have some negative effects on communities. On the other hand, decriminalization could also improve safety and sanitation for sex workers, reduce public costs for criminal prosecution and incarceration, and ameliorate some of the psychological damage that often comes from the social stigma currently surrounding prostitution as a serious criminal offense.

As for other societal benefits, such as governmental regulation and contribution to tax revenues, it’s unclear whether decriminalization would have any such effects. Legalization certainly would do this, as is the case in many rural counties in Nevada.

But a decriminalized activity is still illegal at a less severe level, and illegal activities can’t be actively condoned by governments or reported as income on tax returns. So if the effects of decriminalized prostitution would be different from the effects of legalized prostitution, would the difference be a positive one?

Ultimately, it’s impossible to know the outcome of decriminalized prostitution unless and until we try it and see. But one thing is clear. Whether it’s decriminalization, legalization, or something else altogether, it’s at least healthy that these discussions are taking place and that people are thinking critically about these types of issues. It’s important that we involve ourselves in these debates for the sake of ensuring that our society’s laws make the best sense in light of all the circumstances.

Dr. Gary Deel is a Faculty Director with the School of Business at American Military University. He holds a J.D. in Law and a Ph.D. in Hospitality/Business Management. Gary teaches human resources and employment law classes for American Military University, the University of Central Florida, Colorado State University and others.

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