Criminalization is Pretty Harmful Too
It’s a pretty standard thing to see: in an argument about whether we should either decriminalize or legalize some thing, oftentimes the argument revolves around one thing. Is this thing harmful? The best example, although it’s not the only one, is drugs. Obviously, if the argument in favor of criminalizing something is that it’s harmful, than evidence that it is not supports ending legal prohibitions.
Is prison harmful? Is ripping apart families harmful? Is the endemic sexual assault found in prison harmful? What about the risk of violence, or the torture of solitary confinement? Or overcrowding, or lack of medical care? How about the collateral consequences of imprisonment–unemployment, being barred from public housing, food stamps, federal education aid and a whole host of professions or voting? What about the impact on communities where many people are shuffled between prison and the neighborhood? What about the police harassment that comes with hyper-aggressive law enforcement?
Few things we criminalize because they are ‘harmful’ are anywhere close as harmful as prison.
In some ways “harmfulness” might be better thought of as a product of criminalization rather than the other way around. That the law forbids a thing, and more importantly (which isn’t the same thing) that the full power of the state is used to pursue and then punish through the removal of someone’s freedom because of that thing, this suggests that the thing is truly harmful.
There’s another problem with the idea that criminalization can be justified by harmfulness–it’s often applied very selectively. This is certainly true with drugs, where poor Black and Latino communities are targeted while drug use elsewhere is very common. Are we to believe that policy makers are more concerned with protecting the most disadvantaged and not the most privileged? That’s a rather fanciful position. In my experience, when this question of discriminatory enforcement comes up, supporters of criminalization insist they are open to enforcing the rules more broadly. But (rhetorical) willingness to do that is not the same as a real commitment to do it. The fact that there is little to no political agitation for enforcing criminalization equality tells us what we need to know–that this isn’t about harm reduction, it’s about producing inequality.
Of course, criminalization doesn’t stop drug use. “If we legalize it, people will use it” is true but they will also use it if you don’t too. So even weighing the alleged harms of the thing being criminalized against the harm of criminalization isn’t really useful. Instead you’d have to calculate how much harm would be reduced by diminishes incidence (assuming this is true) that would result from making the thing illegal. Black markets too, can be harmful, and this must figure into our decision making as well.