BY ERIC MULLIGAN

In print | Published November 3, 2005

The United States has the highest incarceration rate in the world, with approximately 5.6 million Americans (almost 3 percent of American adults) serving or having served time in prison, according to the Christian Science Monitor’s Aug. 18, 2003 edition. This fact is probably due partly to high rates of violent crime in the United States compared with other countries. But there are other reasons for this disappointing statistic, and many of them aren’t as good as the removal of violent individuals from society.

The same edition of the Christian Science Monitor also notes that one in four current inmates in American prisons, including one in three women prisoners, are there for “drug-related offenses, most of them nonviolent.” Such a situation is n’t surprising in this country, where the rule seems to be that if a majority (or a sufficiently powerful minority) doesn’t like the behavior of a person or group or considers that behavior “harmful,” the immediate solution is to make that behavior illegal.

American laws regulating the purchase and consumption of alcohol are a good example of this pattern. A few decades ago, groups such as Mothers Against Drunk Driving (MADD) successfully lobbied Congress to pass the 1984 National Minimum Drinking Age Act, which effectively forced states to raise the legal drinking age to 21. Members of MADD who lobbied Congress for the National Minimum Drinking Age Act no doubt believed that they were acting in the best interest of American youth, but their beliefs were at least somewhat misguided.

This law puts colleges in a very difficult position because, according to Ruth C. Engs, Professor of Applied Health Sciences at Indiana University, “a majority of students under [21 years of age] consume alcohol but in an irresponsible manner.” An institution such as Swarthmore is therefore left with two unappealing choices. It can choose to enforce the minimum drinking age, forcing students to drink in secret and discouraging them from seeking medical assistance for fear of prosecution. Or it can decide, as Swarthmore has, to handle emergencies without involving outside authorities who could help students medically but hurt them legally.

It’s at least understandable when an act is criminalized because it is perceived or shown to be harmful to those who practice it. Sometimes, though, this isn’t even the case, and an act is made illegal that harms either no one besides its actor or sometimes not even its actor. For example, Assateague Island, a small island off of the coast of Virginia and Maryland, is a popular spot for naturists in the Delmarva area. However, according to the National Capital Sun Club (NCSC), whose members use the island for recreational purposes, “[a] forceful religious group effectively ended all nudist activity in the Virginia section with … an anti-nudity ordinance in June of 1984.”

Whom did this ordinance benefit? It was certainly not the naturists, who were suddenly confined to the Maryland side of the island, where “tickets for nudity are invariably given out every year,” according to the NCSC. What about the groups opposing the naturists? I guess that they got the benefit of saving a few souls that didn’t want to be saved anyway. As for the “textiles” (non-naturists, that is) using the beach, the NCSC website advises naturists using the beach to “show them courtesy and…cover up.” In other words, they don’t want any trouble. Unfortunately, some of the local park rangers are all too willing to give them trouble in the form of fines.

Other examples of needless or harmful criminalization in the United States abound. Much of this legislation exists to stop individuals from harming themselves, but such restrictions, such as a minimum drinking age, don’t generally dissuade many from continuing practices either shown or imagined to be harmful. Other restrictive laws criminalize behavior that doesn’t physically harm anybody at all, such as naturism. These laws are justified with catchphrases such as “protecting America’s moral fiber” that ignore the effects of reckless criminalization on society, such as soaring incarceration rates.

For these reasons, we must not assume that because a certain act is harmful or perceived to be harmful that banning it will benefit society. On the contrary, laws banning certain acts must be examined carefully to determine whether their costs are worth their benefits, or indeed if the laws even give any benefits at all.

Eric is a sophomore. You can reach him at emullig1@swarthmore.edu.

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