Deviance and Liberty

Social Problems and Public Policy

Lee Rainwater

• Publisher: Routledge
• Year: 2018
• ISBN:
  9781351522366
• Edition: 1
• Topic: Social Sciences
• Subtopic: Sociology
• Index: Social Sciences

Deviance is by definition a social problem. Since deviant behavior violates the normative expectations of a given group, deviance must be regarded as a problem for that group, since all groups of people want their norms to be enforced. Many modern societies place considerable value on personal liberty, so much so that interference with personal choices to deviate from group norms can be justified only in terms of the potential damage that particular kinds of behavior might do to the legitimate interests of others. Sociological research suggests that the social problem associated with deviance is often the behavior of individuals who violate norms cannot be justified in terms of basic values of liberty, social order, or justice. In other kinds of deviance, though, the social problem is that people or, in a more organized way, social institutions, interfere with individual liberty and self-realization.

Each selection in this volume has been chosen to cover a full range of substantive problematic issues, a range of social science perspectives that can be brought to bear on issues of all kinds, and a range of social science methodologies used in studying modern society. 'Deviance and Liberty' is divided up into thirty-nine contributions and five main parts ranging from "Modern Perspectives on Deviance and Social Problems"; "Deviant Exchanges: Gambling, Drugs, and Sex"; "Deviant Personal Control: Illness, Violence, and Crime; Deviance, Identity, and the Life Cycle"; and "Moral Enterprise and Moral Enforcement." It is a welcome addition to the libraries of those interested in the study of deviance or society as a whole.

II. Deviant Exchanges: Gambling, Drugs, and Sex

Lee Rainwater

PEOPLE ENGAGE daily in innumerable transactions with one another. They exchange not only goods, services, and money but also friendship, help, intimacy, and deference. All these exchanges are complex blends of choice and constraint; all are affected by the prevailing social definition of what is desirable, but society also says that some exchanges between people are not permitted. Such exchanges are regarded as deviant behavior; the norms may proscribe such exchanges entirely or may proscribe only particular exchanges for certain categories of persons. An example of the second kind is the incest taboo, which proscribes sexual activity with persons in certain kinship relations but not with persons outside them. To engage in sexual relations that can be labeled as incest is to engage in a deviant exchange.

For present purposes, we will confine our attention to voluntary deviant exchanges in which no harm is done to third persons—the so-called “crimes without victims.” Obviously some deviant transactions damage third parties, as when two individuals conspire to take another person’s property. The exchange is regarded as deviant exactly because it does harm to a third person; if no harm were done, no conspiracy could be said to exist.

In crimes without victims, however, the exchange itself is regarded as deviant, quite apart from any effect it may have on third parties and even though it meets with the wishes of both participants. “Vice” is the old-fashioned name for such exchanges. The moralist’s argument is that no matter what the wishes of the persons involved, the exchange is vicious or immoral and does damage to and affronts society (or in a less secular time, God).

When the sociologist uses any concept he is obviously making an assertion about the real world. Here he is saying that nothing intrinsic to exchanges of this kind damages other individuals so that they may legitimately claim to be its victims. We include under this rubric many voluntary exchanges commonly regarded as deviant in American society—in particular, gambling, the use of drugs, and a wide range of proscribed sexual behavior, including heterosexual relationships outside marriage, homosexuality, pornography, and the various issues that arise as a consequence of the connection between heterosexual relations and conception—contraception, abortion, and illegitimacy.

These activities are often said to harm some parties and so can be labeled as deviant. What the sociologist observes, however, is that other activities that have equal potential for harm to third parties are tolerated if not encouraged. Thus the specialist in drugs points out that we permit cigarette but not marihuana smoking, though overwhelming evidence shows that cigarettes harm the individual more than does marihuana. We permit alcohol consumption but proscribe the use of other drugs, though the evidence on damage to third parties demonstrates that alcohol is by far the greater problem. Similarly, we sometimes proscribe gambling on the grounds of damage to third parties—the gambler’s wife and family—but any man is free to be a spendthrift in a nightclub or a sporting goods store, thereby equally damaging his family exchequer.

Deviant exchanges of this victimless kind must be understood simply as offenses against morals. For a variety of reasons these particular exchanges contravene the moral values of enough people with enough power to enforce their proscription. Often it doesn’t really matter whether many people engage in the deviant behavior so long as everyone clearly understands that it is deviant. Those who for some reason hold strong feelings about what they consider the self-indulgence of drug use or gambling, the unnaturalness of homosexuality, or the immorality of premarital heterosexual relations, manage to create a situation in which their moral preferences are ratified by the deviants’ stigmatization and, occasionally, more formal punishment. Thus the deviants pay the costs of the moral gratification of those who disapprove of the deviant exchange.

It is not merely this interference with the liberty of others that leads to the sociologist’s interest in the social problem of victimless crimes. In addition, much research has suggested that the proliferation of prohibitions against these activities and the concentration of law enforcement attention on them militate against effective law enforcement when it comes to crimes that clearly have victims. Thus researchers have developed in considerable detail the intimate connection between crimes of vice and police corruption. Because these crimes have no complainant, the police decide very much on their own whether or not to enforce the law, thereby creating an uncertainty that policemen and local political organizations may use to extract a price for overlooking violations. Illegal gambling can exist only with police cooperation, and the same is true of any but the most discreet prostitution. The patterns of accommodation that grow up between police and other officials and persons engaged in deviant exchanges constitute a continuing source of political vulnerability, and because corruptness and laxness are widely understood, the legitimacy of government is undermined.

Given the complex relationships that grow up among those engaged in deviant exchanges and between them and officials and ordinary persons, the sociologist has been able to range widely in choosing particular subjects for study. Thus some have devoted a great deal of attention to the processes of the deviant exchanges themselves, while others have concentrated on the exchanges between the deviants and officialdom, and still others on the process by which society establishes or disestablishes a particular exchange as deviant. The selections in this part also show the wide range of methods that can be brought to bear on these issues, from participant observation to survey research to demographic analysis, from interviews with key informants to documentary study to social psychological experiments in the laboratory.

An extremely useful analysis of the problem that victimless crimes create for rational law enforcement is Herbert L. Packer’s The Limits of the Criminal Sanction (Stanford University Press, 1968). A related approach to the issue of organized crime is Thomas C. Schelling, “Economic Analysis and Organized Crime,” in the President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Organized Crime (Government Printing Office, 1967). Another interesting effort to analyze the relationship between law and morality is H. L. A. Hart, Law, Liberty, and Morality (Stanford University Press, 1963).

6. Gambling in New York City the Case for Legalization

Joan Ransohoff Wynn

Clifford Goldman

Reprinted from Joan Ransohoff Wynn and Clifford Goldman, “The Case for and Against Legalized Gambling in New York” from Legal Gambling in New York: A Discussion of Numbers and Sports Betting, Fund for the City of New York, 1972, pp. 1-19. Copyright 1972 by Fund for the City of New York. Joan Ransohoff Wynn, former head of the Housing Planning Unit of the New York City Bureau of the Budget, and Clifford Goldman, former executive director of the Hackensack Meadowlands Development Commission, acted as consultants to the Fund for the City of New York in compiling the report presented here.

▪ One response to the difficulty and wastefulness of trying to enforce laws against crimes without victims is to remove the criminal label entirely. This suggestion often is made about gambling, which is difficult for many to accept as a “real” crime given the many circumstances in which it is either legal or openly tolerated. Arguments for converting gambling from a crime to a state monopoly seem to have gained ground in recent years, particularly with respect to lotteries, which now exist in several states, as does off-track betting on horse races.

In this study, organized by a New York foundation concerned with better public decisions, an effort is made to assess systematically both the extent of gambling under illegal auspices and some of the consequences were gambling to become a legal state monopoly. The study is distinctive not only for the high professional level at which the analysis is carried out but also for the use of a sample survey to determine the size of the New York City “market” for illegal gambling and its dollar volume. The results provide a basis for policy recommendations on the kinds of gambling that might usefully be legalized and how legal gambling would have to be designed to compete effectively with illegal gambling and drive it out of business.

A useful collection of studies of gamblers and gambling activities is Robert D. Herman, ed., Gambling (Harper & Row, 1967). Discussions of organized crime and gambling are in Donald R. Cressey, Theft of the Nation (Harper & Row, 1969); Ralph Salerno and John S. Thompkins, The Crime Confederation (Doubleday, 1969); the President’s Commission on Law Enforcement and the Administration of Justice, Task Force Report: Organized Crime (Government Printing Office, 1967); and Marvin B. Scott, The Racing Game (Chicago: Aldine, 1968). ▪

IN THE TWO CENTURIES of this nation’s history, the tide of public opinion has surged back and forth between permissive and restrictive attitudes toward gambling. The actions of a number of legislatures suggest that this tide is now running strongly in favor of lawful betting. State after state, usually on the recommendation of a select study commission, has legalized bingo, pari-mutuel horserace betting, lotteries, and—most recently, in New York—off-track betting. Now under consideration are proposals to legalize the numbers game, sports bookmaking, casinos, and other gambling activities.

Objections to gambling on moral or social grounds in most cases have been overcome by state and local governments’ pressing need for additional revenue and legislators’ attraction to new, relatively painless sources of such funds. The most efficient, productive levy, the progressive income tax, is largely preempted by the federal government, which up to now has returned little of the money to the localities where it was raised. Legal gambling, an essentially voluntary revenue source controlled by the states, thus has a powerful appeal. And this appeal is enhanced by the astronomical estimates of the size of the betting handle and the profits to be made from taxation or government operation.

Some advocates of legal gambling also contend that it will yield important social benefits. One is to relieve the courts of the onerous, corrupting, and generally futile task of enforcing unpopular laws against gambling. Betting, they argue, is a victimless crime—a diversion that harms only its practitioner and that the public demands. In the face of public ambivalence, or even indifference, the courts tend to be lenient toward accused gamblers, and police are ineffective in any serious attempt to curb the activity. As a result, illegal gambling operators have succeeded in corrupting the law enforcement system.

For this reason, the Knapp Commission recommended:

The criminal laws against gambling should be repealed. To the extent that the legislature deems that some control over gambling is appropriate, such regulation should be by civil rather than criminal process. The police should in any event be relieved from any responsibility for the enforcement of gambling laws or regulations.

Most police reformers regard the elimination of a powerful temptation to corruption as the most compelling argument in favor of repealing laws against betting. Too often, however, they ignore some important consequences. Organized crime^* now controls the overwhelming majority of illegal gambling activities. If all gambling is simply declared legal, present operators will have an enormous advantage over legitimate new competitors. Almost certainly the profits of gambling will continue to support criminal organizations whose other activities will still plague the police and the public. It is more than possible, moreover, that organized crime would meet the threat of competition with violence, posing new and more serious law enforcement problems. Unless the police are prepared to turn their backs on the problem of organized crime, complete legalization of all forms of gambling is not a cure for the disease of corruption.

Some legal gambling proponents argue that a properly designed and operated alternative to present criminal betting would in fact capture the business. In that case, it would deprive organized crime of a large, steady source of income that is its financial mainstay. It would also eliminate employment opportunities for an army of criminals who are now regularly supported by gambling but are available for other jobs. The mere existence of a legal game, however, would not automatically accomplish this objective.

The problems of revenue, corruption, and organized crime, together with declining respect for the law, are among today’s most pressing public policy issues. All of them were cited in the February 1972 report of the New York State Commission on Gambling.

From all of this activity and disposition of New York dollars, [illegal gambling] this state and its local governments have derived little or nothing except losses—losses in the form of the expense of largely futile policing and prosecuting activities involving endeavors to enforce our anti-gambling laws; losses in the form of burdensome and disruptive court calendar congestions; losses in the form of debased integrity of officialdom subjected and succumbing to bribery and corruption; losses of public confidence in and respect for the law, its enforcement, the judicial processes, our institutions of government and society in general.

The principal beneficiaries of this illicit but widespread utilization of New York dollars within this state have been the criminal elements (organized crime) [sic]. They reap the harvest therefrom and sow it in other fields which they also soon come to control. Illicit gambling comprises one of the largest business enterprises in this state. It grows by leaps and bounds. Yet, for all intents and purposes, it is not taxed; it contributes virtually nothing to government but headaches and disintegration. We feel that it is time to ensnare it, control it, and devote its enormous profits to legitimate public needs.

The ideal legal betting game would accomplish all of the major objectives. It would attract substantially all of the illegal game’s customers. At that point the illegal game would cease to be a problem for the police and the courts. All of the profits would be denied to organized crime and would flow into government coffers to be used for worthy purposes.

This suggests that the trick is simply to design such a game. Unfortunately, it can’t be done. The three main policy goals do not necessarily reinforce one another, and they may be competitive. Public officials will have to be certain of what they most want to achieve from legalized gambling.

Even if the government runs the legal game, it is important to recognize the competitive advantages of the established, illegal activity. It has a generally satisfied clientele. It is run by experienced, generally efficient operators. It is free from legal accountability and financial regulation, which enables it to operate in a fluid and convenient manner. It can provide credit to players. It pays no taxes on its profits and neither do its customers on their winnings.

A legal game would have an edge in its ability to operate openly and to engage in aggressive promotion. It would attract some new customers who refuse to bet illegally. But a game that hopes to capture the present business must offer gamblers an appreciably more appealing proposition. For most, that means a higher payout in a game of equivalent convenience. (See Figure 6.1.)

Here the inherent conflict between revenue-raising and competitiveness becomes plain. Higher prizes, unless offset by lower operating costs, must reduce revenues. In order to overcome the natural advantages of an established game, the new legal alternative must spend more and keep less. Thus it is too simple to assume that a legal game, by capturing the illegal market, will return to the government as much money as the present criminal activity yields its operators.

The easiest and most profitable way for legal gambling to grow is to exploit its promotional opportunities and create new customers. But the likely result of such a policy is the creation of two separate and parallel games: the illegal game, continuing to thrive on the business of its present customers; and the new legal game, largely dependent on bettors who do not now gamble regularly—almost certainly mostly smaller bettors.

In such a situation, the job of enforcing the law against illegal gambling would be even more difficult. Agents of the legal game must be protected. And unless it is made clear that legalization of some popular forms of gambling is part of a drive against organized crime’s illegal betting activities, greater public acceptance of gambling could prompt the courts to be even more lenient in their attitude toward accused illegal operators. The police would be asked in effect to protect a new revenue source with no new tools and in an even less supportive environment.

When gambling is legalized for the sake of its revenue potential, officials are tempted to devise new betting variations that face no competition. The New York State Lottery is a case in point. Lottery players as a group get back no more than 45 percent of their aggregate wager in prizes. This is a lower payoff than that received by numbers bettors, whom operators and police regard as suckers. Thus the lottery has had no appreciable effect on the illegal numbers game. Indeed, lottery profits are so high that organized crime is invading the market by counterfeiting tickets and selling them in competition with those offered by the state.

The consequences of striving for high prof...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• Preface
• Introduction
• I. Modern Perspectives on Deviance and Social Problems
• II. Deviant Exchanges: Gambling, Drugs, and Sex
• III. Deviant Personal Control
• IV. Deviance, Identity, and the Life Cycle
• V. Moral Enterprise and Moral Enforcement
• Index