Rosemary Yin

The Mechanics of Moral Crimes

Rosemary Yin

The criminal justice system is created by the people and in America, law is seen as a vital part of democracy. Yet, its application to the people often eliminates an individual or group’s ability to behave according to their own moral standards. In other words, law provides a physical and inflexible version of morality which applies to all people in a given society. The criminal law seeks to punish wrongdoers, protect Society, compile an inventory of the socially unacceptable acts, and simultaneously educate the public of the acts a small but influential minority of legislators have disapproved (Friedman 10). Many believe that action can and should be taken to discourage behavior only if there is a potential for substantial harm to others as a result of said behavior, or as John Stuart Mill believes, “[t]he only purpose for which power can rightfully be exercised over any member of a civilized community, against his will, is to prevent harm to others.” (Meier and Geis 23). The elite often portray Society and social order as victims of harm, justifying the necessity of moral crimes.

Jurists often draw the distinction between crimes which are mala in se and mala prohibita (Friedman 125). Mala in se are crimes which are deemed inherently evil in themselves, while mala prohibita crimes are deemed evil by societal rules, such as laws and rules of conduct. In literature, the term “moral crime” refers to a special category of crimes mala prohibita, which involves only the harm of Society. Committing “moral crimes” is commonly blamed and punished as a source of societal decay or as an offence against “public decency” (Friedman 126). Although the law aims to be an application of accepted moral codes of conduct, its codes are altered by various power dynamics. Past examples of US moral legislation are the Prohibition movement, and drug laws concerning opium and cocaine. These specific three examples are significant because of their racial origins; the laws are fueled by public discrimination and governmental oppression towards minority groups such as German immigrants, Chinese immigrants and African Americans. Across history, groups in power have abused other classes. American history shows that the wealthy white elite are no different.

Political and societal order is defined and maintained by a certain elite subcommunity. Stanford Law Professor Lawrence Friedman writes that the “criminal code reflects ... some notion of the moral sense of the community ― or, to be more accurate, the moral sense of the people who count, and who speak out, in the community” (125). Politically, groups which hold sound power are given a greater say in legislative policies, resulting in the acts associated with minority groups to be deemed immoral.

The first factor which causes inequality is the different levels of natural involvement; those strongly immersed in the political process have financial ability to take time off from work, and the resources to push for their goals and priorities (Jacobs). Donations from the enormously wealthy have also become transformed into “speech” through decisions like Citizens United (Bai). A similar bias exists in the voting process, favoring those who are highly educated and white. In 2000, 56.4% of whites voted, compared with 53.5% of blacks and 27.5% of Hispanics (Jacobs). The voices of minorities are stifled further by the unequal responsiveness of public servants. A Princeton study found that constituents with incomes at the 75th percentile of distribution had three times more leverage on senators than constituents with incomes at the 25th percentile (Bartels). Citizens who earned at the bottom fifth percentile of income distribution receive extremely little representation from senators; they are essentially treated as marginal citizens. The weighted system of political representation is largely influenced by money, as well as politicians’ desire to become re-elected. Therefore, they cater more to the wealthy, the constituents who are likely to vote in favor of their Congressman who acts with their best interests. Jacobs notes “[t]he socio-economic bias in citizen politics implies as well that the concerns of members of disadvantaged groups -- for example, racial and ethnic minorities, women, immigrants, and lower-income groups -- are systematically less likely to make themselves heard.” The additional representation that the powerful acquire creates many mala prohibita crimes which deem certain acts linked to minorities as immoral and criminal. The mala prohibita specification specifies the importance of human designation; crimes mala prohibita are, after all, judged illegal by morally relativistic standards.

It is important to note that the moral differences are often, in this literature, perceived from mere patterns portrayed in public forums. In other words, a few anecdotes or outliers are seen as impenetrable proof of cultural characteristics. The specific moral standards of a societal subset are virtually impossible to identify and quantify. However, the public of

ten makes broad generalizations based on media representations and mass hysteria. The Temperance movement and the Nixon campaign are notable examples of manipulation, which create perceived moral differences between societal groups, identifying some as threats to the general fabric of Society and others as threatened. The US’s racial and socioeconomic groups have historically been constructed socially, through events such as slavery and segregation, anti-immigration laws and sentiment, and differences in resources and education. Moral laws are an example of social standards which are based on involuntary statuses but still continue to affect the lives of minorities and the powers of the wealthy and white.

The Temperance Movement, which banned the manufacture and distribution of alcohol, was catalyzed by prohibitionists who identified drinking as a sign of moral destitution as well as the root of behavioral problems of the people and of Society. The Movement most notably resulted in the ratification of Amendment 18 of the US Constitution in 1919, which prohibited “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes” (US Const., amend. XVIII). The 18th Amendment remained law from 1920 to 1933, but even before that time, class and racial divides were surging up from under the surface of Society. One can identify the xenophobic and racist sentiments of the Nativist Party, commonly known as the Know Nothing Movement, as an early indicator of the Temperance Movement (Grimm). The Nativists were a group which reacted to the perceived threat of immigrants and Catholism (Grimm).

The “native” public was also overwhelmed by the financial and political number of immigrants. German brewers outnumbered “native” brewers by about three to one, saloons promoted fraternizing, networking and professional growth for immigrants and immigrants ascended political ladders (Rathod). Non-immigrant upper class were wary of the immigrants’ entrepreneurial success in the alcohol industry but also complained of the effect alcohol had on their immigrant, working class employees (Rathod). Upper-class business tycoons joined forces with Prohibitionist movements to curb the intoxication which seemed to be rendering their workers economically inefficient; Henry Ford, on behalf of the Anti-Saloon League, established business protocols within Ford automobiles which encouraged total sobriety and dismissed workers who were caught buying liquor twice (Rathod).

One of the primary organizations which demonstrated for Prohibition was the Anti-Saloon League. The sentiments of the ASL led to partnerships between the ASL and the Ku Klux Klan, official as of 1915 (Rathod). Like the ASL, the KKK both relied upon and fueled the nativist fire by citing the epidemic of immigrants violating Prohibition laws. Imperial wizard Hiram Evans cited governmental crime statistics such as, “[i]n Arizona 85 per cent of the bootleggers were aliens; in Connecticut 90 per cent of arrests were of aliens”, to embolden public vigilantes (Rathod). The KKK’s actions reveal that, firstly, moral crimes weren’t used solely to target minorities but also to symbolize the “otherness” of minorities and, secondly, the brutal redundancy of the “justice” system; the percentages of immigrants who were caught breaking Temperance laws were high because they were targeted, yet the high numbers are used to enrage vigilantes who violently regulate the immigrants’ behaviors a second round (Rathod).

Ever since 1795, there has been the vague requirement of “good moral character”, but this phrase was without specification until Prohibition. The 1952 Immigration Act lists violations which disqualify “good moral character”, a list which includes both Nazi activity and habitual drunkenness (Rathod). The government has used legislation to link Nazi activity with immigration, immigration with alcohol, and alcohol with immorality. The patterns of alcohol and perception show the complex interaction between perceived the physical, economical and political from immigrants threats to the “native” or white elite, and its consequences of citizen vigilantism and governmental illegalization through appeal to the nation’s moral standards.

The Temperance Movements and organizations such as the Anti-Saloon League used dry laws to target German or Catholic immigrants. Drug laws, on the other hand, primarily targeted Chinese immigrants and African Americans. David Musto, an advisor for the Carter administration during the War on Drugs, notes the association of foreign groups with certain drugs: “cocaine raised the specter of the wild Negro, opium the devious Chinese” (Musto 65).

Opium was legal and widespread. Companies such as Merck imported opium in order to produce patent medicines for a wide range of ailments (Chambers). The public and governmental both ignored problems of addiction due to the belief that consumption of opium through injection and medicine were not addictive, as well as a lack of concern regarding the addiction of lower-tiered society, such as Chinese-Americans, prostitutes and gamblers (Chambers). Public hysteria increased when the reliance of white women upon opium became apparent, due to doctors’ prescriptions to aid menstrual and menopausal issues (Chambers). Media identified only the act of smoking opium as unacceptable, and coincidentally, the public associated foreign Chinese immigrants with the opium dens (Chambers).

Opium dens were owned by Chinese immigrants, but “native”, white Americans could also enter (Kirk). Journalists concentrated on the ways in which Chinese habits of smoking opium had corrupted whites, mainly, white children and women (Kirk). Accusations against the Chinese, of immorality and seduction of white women, coincided with a false perception of the immigrants’ rapidly expanding

communities. Although the Chinese immigrant population never exceeded 100,000, many media outlets reported a population over 200,000 which “is as great as that of all voters in the State [of California]” (Chambers). As available jobs decreased, white Americans pushed to expel Chinese immigrants by forming labor Unions opposing Chinese laborers such as the Workingman’s Party and the Anti-Coolie Labor Association. White workers also killed Chinese workers during riots and destroyed Chinese homes (Chambers). The government began to penalize the Chinese through mining, tax, land ownership and voting bills. A House Representative determined the Chinese as “morally, the most debased people”, and a Senator blamed Chinese workers as “an injury to white labor” (Chambers). In 1882, the Chinese Exclusion Act halted Chinese immigration and naturalization for ten years (Chambers), a reflection of public opinion which demonized Chinese immigrants with substance and job related propaganda.

Cocaine is the third example of racially charged moral laws. Cocaine comes from Erythroxylon coca and is processed with other chemicals to decrease its purity to about 53-59% (Chambers). Crack, a derivative of cocaine with nearly the same formula, is processed with substances such as baking soda which reduces its purity to about 80% (Chambers). The only other differences between the drugs is the crack’s crackling sound and the more rapid effect of crack than cocaine (Chambers).

Like opium, cocaine was initially used among the white population for more socially accepted purposes such as medicinal prescriptions. Cocaine was even featured in drinks by Coca Cola, yet its prevalence abated when Southerners perceived a link between cocaine use, blacks and violence (Chambers). Many whites feared that cocaine would lead black men to rape white women, and reduce their regard for Jim Crow laws (Chambers). A 1910 testimony showcases many public fears: “colored people seem to have a weakness for [cocaine] ... a great many of the southern rape cases have been traced to cocaine” (Chambers). Rumors of cocaine-related violence are chronologically traced to the rising political power of the African American community; emancipation ended slavery and blacks were able to vote, black labor was no longer free and whites had increased competition in the workforce (Chambers).

Unlike opium and alcohol, cocaine did not immediately result in federal regulations which targeted the black minority through moral crimes. From the 1930’s-1960’s, cocaine was used by the lower class and considered immoral but after 1970, when cocaine crept into the upper elites, it was widely accepted in public opinion (Chambers). It is not cocaine which has been used as a discriminatory tool but rather, crack, its cheaper derivative, which was found in urban areas and with a more addictive and violent connotation (Chambers). Five grams of crack cocaine required a minimum 5 year sentence ― the same minimum sentence as 500 grams of cocaine; a maximum sentence of life applied to any offender who possessed 50 grams of crack compared with 5 kilograms of cocaine (Chambers).

US laws against moral crimes have shown xenophobic and racist trends, specifically, against the German, Chinese and Black community. By focusing on historical events as well as laws prohibiting substances such as alcohol, opium and cocaine, one can identify causes and patterns of inequality, misconstrued, however, as moral differences and threats against the political, economical and familial well-being of the white community. Minorities have been accused of stealing jobs, holding too much political power and seducing white women. In all three instances, public opinions, media depictions and governmental policies are complicit.

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