[Our kids] are different from us ... We made mixed tapes, they remix music. We watched TV, they make TV. It is technology that made them different. And as we see what this technology can do, we need to recognize you can't kill the instinct the technology produces we can only criminalize it. We can't stop our kids from using it we can only drive it underground. We can't make our kids passive again, we can only make them "pirates." And is that good? We live in this weird time. It's kind of an age of prohibitions, where many areas of our life we live life constantly against the law. Ordinary people live life against the law, and that's what we are doing to our kids. They live life knowing they live it against the law. That realization is extraordinarily corrosive, extraordinarily corrupting, and in a democracy we ought to be able to do better.He was talking about copyright law but the observation about living in an age of prohibitions applies much more broadly than just to music mashups.
Prohibition of drugs, prostitution and other consensual commercial activity driven into black markets are the big, hot-button culture war issues that come to mind when one thinks about living in an "age of prohibitions," but really the situation is much more pervasive than that. I've complained frequently on this blog that government attempts to solve nearly every social problem with prohibitions and criminal sanctions when often that's the least effective tool available. A great example is criminalizing truancy or using police and courts to handle juvenile misbehavior that in years past would have been dealt with through internal school discipline. Laws regulating teen "sexting" as porn raise similar emerging issues. But there are hundreds of other, even more mundane instances.
As laws proliferate, so do the number of violators. I've joked about Texas having 2,383 separate felonies on the books, including 11 involving oysters. And it's true. (There are also additional, oyster-related misdemeanors.) But the reason is that specific laws were passed to protect and/or regulate various industries or interest groups. And that's in part because the arms of government tasked with regulating industry are weak and atrophied from disuse, while over the last three decades the criminal-justice wing of government has grown increasingly powerful. So there was no financial regulator capable of stopping a Bernie Madoff, for example, but the feds are happy to give him a 150 year sentence when he's finally caught. Investors, however, would be better off if his activities were prevented on the front end, as they should have and would have been under a more robust regulatory structure. In that sense, de-regulation helps spawn overcriminalization, as does the decline of civil liability (via tort reform, etc.) as viable options for redress of grievances.
Even more than that, though, there's a pervasive, bipartisan mindset among the governing class which encourages the view that criminalizing undesirable behavior is the best or even only way for government to influence it. Outside of tax cuts aimed at job creation, there's very little discussion of creating incentives instead of (or even in addition to) punishments - few carrots to go with the stick. As such, Lessig's observation reminds those in government of a lesson learned by every parent: that punishment may inspire fear, but it may also generate defiance when it's seen as unfair or hypocritical. I suspect the professor is right we should be worried that a new generation of American youth has grown up with the knowledge that many of their everyday activities have been criminalized - not just online but everything from playing hooky to scribbling their sweetheart's name on their desk at school. And I wonder with him, what are the societal consequences when that situation becomes the status quo and most people come to view obedience to the law as a situational obligation?
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38 comments:
So which ones do you want to decriminalize, Grits?
Where to begin, 4:39? Leaving aside all the culture war stuff (you're welcome to debate it but I don't care to), I'd start with reducing criminalization of routine student misbehaviors, quit treating teen sexting and Romeo-and-Juliet romances as sex crimes, rewrite the copyright laws as Lessig suggests to favor users/consumers as producers/designers, then go from there.
I'd also eliminate most specialized enhancements created to benefit a particular industry. E.g., theft of livestock - even a single $35 goat - is now an automatic felony thanks to a bill pushed by the Cattlemen's association. Or stealing copper wire, no matter the value of the wire is now an automatic felony - a fruitless bill pushed by construction interests that predated a substantial increase in metal thefts statewide. Ditto for the law making any graffiti a state jail felony if performed at a school, church or community center (the places where kids spend the most time). I'd have thefts and property destruction punished by the price of the destroyed or stolen item, be it metal, goats, oysters, or whatever, and eliminate this byzantine array of criminal laws created on behalf of special interests.
This is one of the most common sense posts I've seen in years. Criminalizing the stupid acts of children is insane, but it gets worse every year.
You didn't comment on the laws designed to prevent potential acts, like laws against sharp knives at school, prohibitions on carrying weapons by otherwise law abiding citizens, etc. Make the acts performed with inanimate objects crimes, not possessing the objects.
Kudos to Grits for this very sane article. :)
Excellent post Grits -- we seem to prefer ineffective reactive responses because they are satisfy some human urge for "action". Unfortunately, the actions they support are also "44 calibre stupid".
Prevention is more effective, less costly but less "sexy" to policy makers because it means we actually have to fund and staff government agencies to do prevention work and it does not give them the sound byte they want to use in the next election.
At some point we really need to understand the problems we face and think beyond the sound byte. Complex issues cannot be meaningfully addressed with simplistic, quick fixes that fail to deal with problems as they really are not as we wish they were.
Grits, it seems to me from your 5:14 post that you're not necessarily in favor of decriminalizing certain behaviours but rather have issues with the penalty enhancements. There's a distinction between reducing penalties and the outright legalization of certain conduct.
To the extent that you bring up the so called "Romeo-and-Juliet" sex offenses, I'm curious as to where you'd arbitrarily set the limits if you were "King for a day." As you're aware, it's currently unlawful for an adult to engage in "consensual" sexual contact with persons 16 years of age and younger unless the offender is within 3 years of age of the minor. There are also provisions for waivers of the onerous sex offender registration laws if the offender was younger than 21 and it was not a forcible encounter. What would you change?
As someone who has worked in criminal justice policy for over a decade, I would say that anon 8:43 nailed the reason for overcriminalization:
"Prevention is more effective, less costly but less 'sexy' to policy makers because it means we actually have to fund and staff government agencies to do prevention work and it does not give them the sound byte they want to use in the next election."
There's a certain breed of politician who wants to be able to brag about how big his balls (or her ovaries) are. Authoring some dumb-but-tough on crime law gives him the opportunity to swing his balls around, even though there's nothing more wimpy than being against activities that everyone already hates.
True leadership and courage requires someone to propose real solutions that will really solve our problems, and that means decriminalization in certain cases, and spending more money on the front end to prevent crime rather than waiting to spend it on the back end on more police, prosecutors, and prisons. Unfortunately, overcriminalization reflects the fact that true leadership and courage are lacking in our world today. It also reflects the fact that many of our fellow citizens still believe tough-on-crime BS that politicians feed them in campaign commercials.
I don't have time to endlessly play what-if with you, 9:08. I'm not about to be made King for a Day so I see little point in your query. But those judicial waivers you speak of frequently aren't granted and in some jurisdictions are routinely opposed by prosecutors. You're wrong if you don't think sex-offender registration is being applied in MANY Romeo and Juliet circumstances.
Further, in 2005 Texas arbitrarily raised the age of consent in order to prosecute the polygamous Mormons out in West Texas, with the unintended consequence of effectively banning thousands of young women from marrying the fathers of their children, or labeling Daddy a sex offender if they admit his parentage, even though the activity was consensual. That's criminalizing responsible reactions (getting married to support their progeny) to consensual if irresponsible behaviors that in the past were considered private family matters. So yes, there are many things I'd change if King for a Day. And if wishes were horses, beggars would ride.
Thanks 9:32, I appreciate and largely agree with your comments.
Sounds like Amsterdam is your utopia with legal drugs and prostitution. The goal seems to be to be as permissive as humanly possible and condone any type of license.
This permissive group beats the drums continually and as a result society becomes more malignant each year.
Consider the effects of this permissive drum beating on girls. We hear about some twelve year old school girls who have now been trained to stay on their knees as a line of boys wait their turn to be serviced. She and her 13, 14 and 15 year old friends have been trained to send nude pictures of themselves to anyone with a phone. Examples of what you call "Romeo-and-Juliet" changes seems endless.
The possibility of a Black woman having a life partner and an involved father for her children is now approaching zero as all societal restraints have been lifted and a "I'll do my thing" lifestyle is the model.
It's real easy, Grits, to quarrel with the law--especially as it relates to sex offenses. It's quite another to offer up real solutions. For every example of some poor "Romeo" that now has to register as a sex offender, there are likely hundreds of children who have been exploited for someone's sexual gratification and the matter was never even reported. And that's not mention the many, many "date rate" crimes which occur where underage girls are forced into nonconsensual sexual activity with some older (adult) teenage boy and the case is either not reported, not investigated, not prosecuted, or is pled out because the offender claimed that the victim "consented."
So if you're going to start this discussion of advocating the legalization of certain types of current offenses, I think you should fairly expect to be questioned about what laws you'd want to change and how you'd change them. Anyone can complain. It's another thing to offer up real solutions.
As an aside, the legal age of consent for sexual activity in Texas has been 17 for at least a couple of decades now if not longer. The setting of that arbirtrary age had nothing to do with Mormons.
10:48, Re: Amsterdam, as I said I'll let others debate the hot-button culture war issues. If you can't get past them to have an honest debate about what's actually discussed in the post, that's on you.
Otherwise, you seem extremely confused and your arguments suffer from a major logical flaw. Right now our laws criminalize all sorts of juvenile sexual activity, and IT'S UNDER THAT LEGAL REGIMEN that all the terrible things you described with underage girls occurred (if they actually did - some examples you posited seem as unlikely as they are unsourced). So what you're criticizing are the RESULTS under a criminalize everything approach, not some imagined liberalism within the Texas justice system you apparently fantasize exists. You describe things that are illegal and routinely prosecuted, but prosecution and punishment haven't deterred the behavior among large numbers of youth, which is the situation Lessig argued has such a corrosive and corrupting influence.
Finally, I don't understand why, if you're concerned that the "possibility of a Black woman having a life partner and an involved father for her children is now approaching zero," you don't then join me in criticizing the Lege for raising in 2005 (in a bill by state Rep. Harvey Hildebran aimed at particular polygamous religious sect in West Texas) the age girls are eligible to marry with consent from their parents, a statute that effectively criminalized any attempt by thousands of younger girls to legally raise their child in a nuclear family with married parents just because the love-child was conceived under illicit circumstances. Is it an ideal situation when a 25 year old knocks up a 15 year old and they want to marry? No. (In our grandparents generation, and certainly among their parents, that was fairly commonplace, however today norms and laws have become more, not less, puritanical.) But criminal charges in consensual Romeo and Juliet cases frequently complicate family situations needlessly and prevent outcomes that might be best for the child by making the perfect the enemy of the good.
Anny 10:48: That's absolutely full bore ignorant. There is a VAST difference between the kind of callous abuse you portray, and two fifteen year old kids being irresponsible and getting knocked up a notch. Do you think all men should be required to marry any woman they sleep with? Or is it just black woman, because they have the highest number of failed relationships? What in the world makes you think it's in any way the government's business who screws who, and when? You can't fix a society by making laws. People are people, they do people things, and making those things illegal will just cause them to do those things underground.
11:29, I've given several examples already, what more do you want? In addition, there have been more than 5,000 posts on this blog, a significant percentage of which have suggested reforms to lessen the overall criminal justice footprint. (E.g., see here.) Am I going to reiterate 6 years of work in a blog comment just to satisfy whiny demands from someone who won't use their name? No. I have a life. Besides, this blog has a long record of suggesting specific solutions focusing on what's actually realistic and possible: I don't spend a lot of time fantasizing I might become "King for a Day."
Finally you're dead wrong about the law not changing because of the FLDS. I'm not talking about the age of consent for sex but the age of consent (both with and without parental permission) to marry. That bill wasn't passed until 2005 and running the FLDS out of the state was the main reason cited at the committee hearings for passing it.
This criminalization for social engineering thing is going to bite Texas le in the ass. Kids already feel stifled and cynical by all this revenue generating legislation. I heard my niece's kid say "It's all about the money" while watching cops the other night, and he's 11. You always reap what you sew, and I reckon the harvest that's coming when these kids get a little older will be a black one for Texas.
Shackleford, if some 45 year old man has sex with a 10 year old girl, "consensual" or not, then I think it darn well better be the government's business. There are absolutely any number of circumstances where "who screws who and when" is someone's business other than the participants. As the law stands currently, consensual sex between a couple of 15 year olds is not illegal.
I'm not sure where Grits would draw the line in terms of legal age limits for sexual behavior. Apparently, judging by his previous comment though, he thinks it's okay for 25 year old men to have "open season" on 15 year old girls as long as they're Mormons and love one another! What about 14 years old? Or 13? Or 12? 11? 10? Where do you draw the line, Grits? Or is any age okay as long as there's parental consent? I don't think it's at all "whiny" for someone to ask these questions if you're going to advocate changing the law from what it presently is.
45 and ten is wrong, I'll give you that. 25 and 15? Probably wrong. But maybe not. In rural areas, you may just not have much to choose from, mate-wise. If the relationship is legitimate and not forced, it still seems sketchy, but I don't think it ought to be illegal. And I think the state ought to have to prove that the relationship is other than consensual, rather than throwing the book at every couple who is technically in violation of the law. Your comment about black women remains foolish.
12:16, what a disingenuous piece of garbage you are to make comments like "he thinks it's okay for 25 year old men to have "open season" on 15 year old girls," particularly when you're hiding behind anonymity like a chickenshit coward hiding behind his mommy's skirts. F.U.
I not only said I didn't condone such relationships, I said they were unwise and irresponsible. However I also maintain that the same thing has happened for many, MANY generations throughout American history and was only criminalized or even stigmatized relatively recently when the laws became more puritanical. More than a quarter-million underage girls get pregnant every year in America, many with older partners. Acknowledging that under those circumstances it's a better outcome for mother and child if the father marries her and provides for his progeny is a far cry from saying I "think it's okay" to engage in promiscuity in the first place. Your comments are disingenuous trolling, so I won't be reacting further at least until you find the cojones to attach your name publicly to them.
"Let others debate the hot button cultural issues." Excuse me? You have been vigorously promoting the legalization of drugs and prostitution for years.
Grits,
Are you saying that the reason these guys don't marry the mothers of their children is because the laws of Texas stand in their way? I never thought I would hear someone seriously argue that!!
Why do they not marry these women?
Now you're just pulling stuff out of your collective ( I think) ass. You sound like two very minor court flunkies who are trying to edge into adult conversation. Listen: regular Grits readers are better than you, we just are. Go troll elsewhere.
Grits,
Posts and threads like this are why I read your site every day. Love it!
The "poster child" example for the perils of overcriminalization is prohibition of alcohol, which made ordinary citizens into criminals, and "real" criminals into culture heroes.
Lessig's argument about youth is right on.
Bill B.
I'm anxious to see the whole video (can't at work)... but some observations if I may based on some of the discussion so far.
I agree with the overcriminalization argument. It seems that everyone wants to be in some sort of special category. Therefore a crime against "ME" should carry some special weight. (your goat and oyster examples, isn't theft already a crime with specific penalties)
I also believe the 'intrusion' of law enforcement into the schools is a result of parents not accepting the disciplinary action of the school personnel against their child.
I also second the poster who advocates sanctions for actions with currently prohibited items, not just for posession of the currently prohibited item. I was in grade school at a time when all of us boys carried pocket knives and we managed not to slice each other up. It's ridiculous to jail a second grader for bringing his new 'swiss army knife' 'toy' to school because he's excited about it.
As far as deadbeat dads, reduce the prison system and some of the dads will get out and be responsible.
But also, we should stop subsidizing children born out of wedlock. End public schools, food stamps etc. For that matter, end the laws that force a man to pay child support to some woman he has sex with.
That will discourage women from spreading their legs so willingly.
As an aside, if we legalized polygamy, some women might choose to share responsible rich man. That might help the problem a little bit.
Loved your video Grits. Loved the way Jesus Christ was portrayed as a transvestite stripper wearing a diaper. Especially loved seeing him hit by a bus. You should be proud of yourself for sharing this with us, Grits. It does seem to fit your values and that of the Grits fans who raved about this blog.
At a friend's house, and I can't be bothered with the login, but it's poor and angry again.
Grits - please tell us, because no one ever did, the laws about the ages of consent, and the criminalities involved?
12:57, please point out the Grits posts you're talking about, I'm unaware of your reference.
1:11 - For generations the law allowed marriage with parental consent at 14. Unless you're claiming that option was simply never used, it's indisputable that changing the law would reduce the number of pregnant teens who marry their baby's father. Does that mean they all would? Of course not. But making it illegal hardly PROMOTES marriage, now does it?
Bill B, thanks for the kind words.
11:24 - as always, if you don't like what you find here, don't visit. Problem solved. I promise not to miss you too badly when you're gone.
12:08, as I understand it, the age of consent for sex is 17, but youth can get married with parental permission at 16. Until 2005, youth could marry at 14 with parental permission and at 16 on their own steam, but it was changed to target the FLDS.
If we aren't going to decriminalize sex among teenagers, then by George start teaching the Age of Consent laws in depth beginning with middle school kids.
Worth the Wait Programs do not talk about the Age of Consent in depth. Kids are told its illegal for anyone under 17 to have sex, which many kids find amusing. Kids need to know the serious consequences of breaking the Age of Consent law. The girls need to know how serious it can be for the boy if they lie about their age and have sex with this boy.
Today's kids have far more freedom and far less supervision than years ago. They freely roam the internet, channel surf, roam the neighborhoods and malls. Hooking up with other (older) kids across town where its easy to lie about their age.
Kids today are not sheltered from sex. They have MTV, Internet, The Hills, Brittney Spears, Paris Hilton, Lady GaGa, Beyonce, etc. Girls typically like older boys. Today we have 13 year old girls allowed to dress like they are 21, look like they are 18,have all the freedom of an 18 year old, and lie about their age. We have 15 year old girls writing about sex on their myspace blogs without inhibitions.
We need to accept the fact there are kids 13, 14, 15 & 16 year olds having sex with older teens by choice and not by coercion.
Commonsense should tell anyone the difference between a child molester and a 17 year old boy who had sex with a 13 year old girl who lied about her age. There is a huge difference in the "victims."
It is time for lawmakers to act. We are putting far too many teenagers on the registry for having consensual sex with another teen. Once a kid is prosecuted and made to register as a sex offender, their ability to become a productive adult will be drastically reduced.
Talk about creative. There is no end to the way progressives can disrespect Christians. They seem to take immense delight in so doing.
One's spiritual beliefs do not change the facts that Teens are having sex. We are putting teens in jails/prisons for having consensual sex with a younger teen. We are putting teens on the registry for life, marking them as sexual predators.
Teen sex should be addressed on all levels, including educating our teens on the law. It is another reason to abstain.
From a Christian perspective both teens made a choice to have sex. Both are equally responsible. Should we stone them both? Make them both register?
Why is it considered unChristian to show common sense as well as a little mercy?
You will have to watch the vile YouTube video from Lawrence Lessig cited in the post to understand the meaning of the words about disrespecting Christians.
10:44/3:30 - Anybody that ginned up over a few seconds of satirical mashup used as an example in an academic lecture really has too much time on their hands. Good heavens, get a life, will ya? You sound like the crazies who go after cartoonists for portraying Mohamed.
I so badly want to express my concern and say something profound but all I can muster up is that our politically correct bubble wraped fear mongering jingo society doesn't know shit from good cholcolate.
...and the information age belies itself!!!
From The Washington Times
According to the American Psychological Association, over the past 12 years, girls have changed in their thinking. They are beginning to see themselves as having their only value in sexuality.
"When a child sees herself only as a sexual object, she is no longer able to demand the kind of respect she deserves," Dr. Cooper said. "The new definition of 'love' these days is sending a sexually explicit picture."
In response to Juliet's Mom,
I couldn't agree more. Common sense is the key point. There is no common sense involved in the current use of the age of consent laws and teens. Nor is there when it comes to the multitude of laws that come under the heading of sex crimes.
The words blind stupidity come to mind when one sees case after case of young men whose lives are destroyed by these laws. Or with the thought that teenagers will just not have sexual relations of any kind, as they have since the beginning of the species, just because someone decided it was offensive to their delicate sensibilities and passed laws against it. The only thing these laws and the current policy to enforce them has done is make our children criminals and create food for the industry we call our criminal justice system as well as a steady stream of income for the industries created by the SO registry system. Once again we are seeing laws passed and enforced in the name of protecting “children” that everyone knows has little effect in actually protecting them, but instead has created a new class of criminal, the child his or herself.
On one hand, the cry is to protect children and allow them to be children, on the other, it has been completely forgotten that children grow up and that as they do, sexual awakenings and experimentation is a natural part of that growth process. Instead, the law demands that they repress all natural feelings of sexuality until a ”magic age” occurs and they wake up one morning completely transformed into adults because they are now “legal”. Then, of course, we demand that they accept and understand all the responsibilities of this sudden adulthood despite that they have been denied all the processes of growing up that those of us old enough to have had an adolescence free of these laws experienced.
Laws will not stop teens from having sex. Laws will not stop teenage girls from lying about their age and having sex with older boys or men. (Back in my day as a teenage girl, an “older” boyfriend was the equivalent of whatever the current must have status symbol is for teens. Virginity will never recapture the status it had prior to the Sexual Revolution no matter how many programs the government implements.) These laws will not teach our children self respect, maturity or respect for the laws of the land, nor will they teach them anything other than rebellion against a society that has no real interest in protecting them. Just one that has an interest in control and how much cash can be made over criminalizing them.
If there is any doubt of that, I suggest one consider the numbers of our youth caught up in this system, that if these laws had been applied decades ago a good number of us would be considered felons for the actions of our own youth and that I believe the youngest person now on the So registry has hit an all time low of the advanced age of 5 years old. Where is the “common sense” of that?
If you read the police reports and other documentation of the youth being admitted to TYC for Aggravated Sexual Assault or Sexual Assault you would know that all this talk above is untrue. These young men are sentenced for some serious crimes!
OMG,does that mean that my grandpa is a sex offender. He married my grandmother, she was 10 years younger at 14? What about Mary and Joseph? It is said that Mary was around 14 and Joseph was in his 30's. If Joseph would have been arrested, would there be Jesus?
Oh and I forgot about my neighbor when I was 15. I won't say his name, I don't want him arrested, 33 years later. WOW, I could have had several young men arrested. What a shame, wake up men and women.
""Let others debate the hot button cultural issues." Excuse me? You have been vigorously promoting the legalization of drugs and prostitution for years.
"
I have yet to read or see Grits promote legalization of drugs and prostitution. I HAVE seen him question the law as it is applied to these items as both have different levels to them. Generalized statements on THIS blog will get you slapped, and you generalized.
anon 2:15, according to the law, YES, your grandfather would be seen as a sex offender if his crime occurred after 1969. as to this comment:
"If you read the police reports and other documentation of the youth being admitted to TYC for Aggravated Sexual Assault or Sexual Assault you would know that all this talk above is untrue. These young men are sentenced for some serious crimes!
"
umm dude, if you are a dude, both of those charges are umbrellas for serious adn not serious offenses. If you have the money and a decent attorney, charges of both can be reduced to child endangerment, or unlawful restraint (neither of which will keep you on the registry).
I got deferred adjudication in the 90's on the charge of Sexual Assault. My crime? Pikcing up a 15 year old in a club in Irving using a fake ID. I was in my 20's, her ID said she was 21.
There is no defense for Sexual Assault charges if you do not have the liquid assets to hire the cream of the attorney crop. Texas changed its laws many years ago that made a suspect of a sexual crime well behind the curve. That change was the 'victim's' testimony is treated as proof. In the last couple of years some judges have begun questioning that "proof", but for those of us that were put on the registry in the 90's that questioning has come far too late. Not everyone on the Registry is a predator.
paper after paper, analysis after analysis has shown that the real predator population on the registry is no more than 7% yet 100% are treated as the 7% should be. People then get their assumptions proven about RSO's when one of those 7% re-offends, citing that the whole will never change, are "monsters", need a bullet in the brain.
DUI convicts have a 45% rate of re-offense, yet Sex Offenders have a 3 to 7% re-offense rate. Sex Offenders are treated more harshly than murderers, yet DUI re-offenders statistically endanger and harm more people. But the laws for Sex Offenders that have attempted to regain a place in society and made their lives better ON THEIR OWN are treated every year to laws that are harsher and harsher, and have NO way to show that they have truly reformed.
Sorry, my soapbox is tall. However, getting back to topic regarding Teen sex offenders. Several cases in this state and as well the nation have been successfully prosecuted for a MALE child receiving nude pictures of his FEMALE love interest as Child Porn, while only 1 FEMALE that took those pictures has been charged for distribution of Child Pron Nationally that I am aware. The boys get a permanant stay on the registry, while the tart gets off scott free to do it again to the next guy that she finds lacking in the bedroom.
Sorry if anyone sees me as jaded. I am actually, because to my two children at home I am dad, but have never been a 'monster'.
Do you know how many school plays, softball games, or field trips I missed due to a 15 year old Chunt that wanted to play a victim?
My culpability in all this? I should have taken her in the parking lot like she asked instead of taking her home and actually trying to get to know her.
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