In Defense of Crime

In primitive or medieval societies, criminal activity would often be explained in religious and even supernatural terms. A thief or habitual drunkard might have been seen as possessed by demons or overtaken by ill humors, his crimes a consequence of his own fundamental and even immutable failings. Things hadn’t changed all that dramatically in some quarters by even the early 20th century, when the pseudoscience of phrenology claimed to define un-reformable criminal “types” by their physical attributes – often as a pillar of racism dressed up as reason.

This piece is part of CoinDesk's Sin Week.

These attitudes about crime and social deviance have been increasingly challenged by social and psychological research, helping us see crime as a symptom of larger problems with society, economics or politics. Emile Durkheim, one of the most influential social researchers of the past two centuries, argued that crime was the product of “anomie,” or the disconnection between individual and social goals – and could even provide insights into how to improve society.

Despite these lauded ideas, the dawn of the digital age and the spread of surveillance have renewed political interest in what Durkheim would have seen as a fool’s errand: the total elimination of crime through surveillance and censorship. Tactics Philip K. Dick hypothesized in his 1956 dystopian novella “Minority Report” are reaching the real world, particularly with the Chinese “social credit” system and the U.K.’s near-omnipresent camera surveillance. America has its own angle ­– an accelerating push for total financial oversight and censorship powers.

This looming possibility may sound appealing at first. We should all certainly want a global society without, say, a functional market for illegal weapons or child pornography. And as many first-order thinkers are eager to point out, if you’re not doing anything illegal, you don’t have any need for privacy – right?

Privacy advocates are well used to pointing out legitimate reasons for desiring financial privacy, from personal safety to political activism. But Durkheim, way back in the 1890s, made a much stronger argument. Crime, he concluded, is an inevitable byproduct of individual freedom in a modern society, a byproduct of people navigating a complex and changeable social landscape. Moreover, he argued that crime can even be a positive good if it is taken as a set of signals pointing to ways to improve society.

One example is the legendary trial of Socrates in Athens. Durkheim argued that "his crime, namely, the independence of his thought, rendered a service not only to humanity but to his country" because "it served to prepare a new morality and faith that the Athenians needed." Though if you remember your philosophy 101, the Athenians didn’t come around to this until well after they’d executed their greatest philosopher.

Efforts like the Chinese panopticon and American financial censorship take as their goal making crime not just easily punishable, but logistically impossible. In China, for instance, suspicious persons have reduced privileges to travel. Parallel U.S. legislative moves have attempted to criminalize the use of privacy technologies such as Tornado Cash, while also pushing for more surveillance of individual bank accounts. That suggests a dark future in which you will only be allowed to spend your money on government-approved activities and products.

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In the society foreshadowed by such schemes, Socrates wouldn’t just be executed – he would never exist in the first place. Crime, Durkheim would argue, represents a frontier of social transformation, a realm for exploring the explicitly forbidden – and, perhaps, finding its upsides. By this view, a society without crime would become stagnant as its citizens’ dissatisfactions festered under the boot heel of uniformity. Such total control doesn’t eliminate social contradictions, instead leaving them free to build up, setting the stage for a far more violent and chaotic upheaval when those tensions reach a breaking point.

A society under complete surveillance and control is, in short, a ticking time bomb waiting to explode.

While Socrates’ unjust execution is a compelling example for Durkheim’s argument, we can also look to a much more contemporary case: the path to marijuana legalization. In more than half of U.S. states today, it is effectively legal to buy and consume cannabis either recreationally or under medical advice. This represents the (still-incomplete) reversal of a prohibition effort that began in 1911 and kept pot largely illicit for the better part of a century.

During that period of prohibition, tens of millions of Americans were jailed or convicted for the crime of distributing or possessing marijuana. As recently as the period from 2001-2010, the American Civil Liberties Union counted 8.2 million marijuana arrests, 88% for simple possession. As of 2010, more than 51% of all arrests in the “War on Drugs” (first launched by the Nixon administration in the early 1970s) were for pot. As recently as 2020, 40,000 Americans remained incarcerated for marijuana-related offenses.

Despite this repressive and violent multi-decade effort to eliminate cannabis use, mounting scientific evidence suggests very limited harms from its consumption by adults. Those harms are small compared not just to drugs like methamphetamine or opiates, but also relative to already-legal substances including tobacco and alcohol. The history of marijuana enforcement strongly suggests the motives behind prohibition – particularly its ramping up during the Reagan administration – were not simply protecting public health but also repressing marginalized populations including political dissidents and, most of all, African Americans. The ACLU in 2001 referred to the drug war as a pillar of “The New Jim Crow.”

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This shameful epoch of government repression was based on very little evidence that marijuana posed a threat to individuals or society. Recent research into the large-scale public health impacts of marijuana legalization has found little indication of any. A recent study found cannabis use led to increased emergency room admissions, including for injury and acute symptoms of cannabis use (that is, someone got too high). But the same study found no increase in mortality among cannabis users. There are also strong indications that adolescent cannabis use can have long-term neurological effects, but marijuana remains illegal for minors in all relevant jurisdictions.

Beyond that, there is scant evidence of marijuana legalization seriously harming public health or safety, such as by increasing lung cancer or crime. One study found little evidence that legalization even increased cannabis consumption compared to pre-legalization levels.

That’s a stark contrast to another very popular substance that has been legal in the U.S. for most of the 20th century: Alcohol is vastly more harmful than marijuana for individuals and society on many measures.

According to data compiled by the Marijuana Policy Project, more than 30,000 Americans per year die from alcohol-related causes, while that number is close to zero for marijuana use. One study found that added public health expenditures per alcohol user were more than eight times higher than those for a marijuana user. The World Health Organization highlights two studies finding that even among those who seek treatment for marijuana dependence, the reported harms are less severe than those who seek treatment for alcohol dependence. The famous Harvard Grant Study of long-term life paths found that alcoholism drastically harmed sufferers’ entire personalities and career outcomes.

In other words, the criminals were right.

Despite the existence of laws categorizing marijuana trafficking and distribution as “illegal,” it was arguably even at the time an essentially harmless act. It may even have been a moral one, insofar as illicit marijuana trafficking created demand for legal reform that, in turn, reduced unjust imprisonments.

The story of marijuana legalization in the U.S. highlights the flaws of even purportedly democratic lawmaking processes. In turn, it supports Durkheim’s argument that crime, in some cases, is good for society. And it’s not hard to think of other unjust laws broken by “criminals” who faced the wrath of a misguided state: laws against interracial marriage, homosexual relationships and teaching slaves to read, to name just a few.

Durkheim’s argument implicitly focuses on crimes committed by those outside of power – those who must express their disconnection from the social whole through informal channels because they can’t directly challenge state power. Those sorts of crimes can push the status quo in a new direction, alert rulers to flaws in the social system (as with mass uprisings) or merely enable individual survival in an oppressive regime.

But Durkheim’s theory of crime as an expression of alienation would exclude crime committed by the powerful against the weak. That type of crime doesn’t have the potential for positive social impact, as it largely serves either to enforce the status quo or to further the universal goal of corrupt regimes: to control and steal from their subjects.

This category of truly and universally harmful crime includes many misdeeds that are common today, including under the umbrella of “cryptocurrency.” A scammer who uses his Harvard pedigree to entice a broad audience into a pyramid scheme shouldn’t be mistaken for a rebel to the system. Neither should the nominally legal activities of figures like WeWork founder Adam Neuman, or state-backed activity such as the ongoing mass murder of American citizens by their police.

Another way of thinking about crime’s potential social upside is to see it as the bleeding edge of the “marketplace of ideas” that defines modern, small-l liberal society. Just as economist Adam Smith theorized the “invisible hand” of the market as a force for economic coordination, a democratic society must be rooted in an ongoing, free-flowing conversation about the kind of society in which its citizens want to live.

Prohibitions against some kinds of behaviors, such as Florida’s recent attempts to ban acknowledging the existence of gay people, are the intellectual equivalent of a Communist politburo trying to plan an economy. And we already know how well that tends to go.

The current American leadership’s lust for locking down financial rails may be even more pernicious, though, than specific prohibitions on individual behavior. For comparison, American freedom of speech standards prohibit measures that would create a “chilling effect” on expression, such as capricious or unpredictable post facto punishments for saying something considered offensive. But the push to erode financial privacy and enhance government financial oversight of individuals could have their own “chilling effect” on speech.

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For example, the suspicion that U.S. Treasury Secretary Janet Yellen is watching might discourage people from buying a controversial book out of fear of ending up on an FBI watchlist. It could certainly make people nervous about controversial political donations, despite the Supreme Court declaring money a form of political speech (at least if you’re a huge corporation). Because so much commerce and communication these days takes place at a distance, digital tools that have the privacy of physical cash are particularly key to protecting these forms of free discourse.

We got a preview of the grim potential of financial censorship earlier this year, when the Canadian government froze donations to anti-vaccination protests by truckers. Whatever you think of the truckers’ agenda or tactics, it’s an extremely worrying precedent. Also worrying – the freeze included blacklisting blockchain addresses, making it very difficult for the protestors to access funds sent via Bitcoin or Ethereum.

Across the Abrahamic religions, believers have for centuries grappled with a fundamental conundrum: If God created man and intended for him to be good, then why did He give us the ability to sin? One entry-level theological answer is that God wants us to make the right decisions, but only under our own free will.

The same thinking has entirely secular parallels. Is our goal as a species to build societies where everyone is forced to “do the right thing” under external compulsion – or do we want to foster individuals capable of making good moral decisions based on their own judgment?

How we answer that question depends on the kind of society we want to live in, and the kind of people we want to be. Do we want to give a handful of leaders the ability to control our every move? Or do we want to focus on developing every member of society, fostering a sense of social cohesion and care in an environment of real freedom?

The choice, at least for a little while longer, is ours.