Now I am no lawyer (we are overlawyered anyway, right?), so don’t rely upon this information, but I don’t think you can legally set up a clown mannequin on your property near the street and booby trap it in such a way that if a little kid walks up to the clown, he will, say, fall into a deep ditch. It’s called an attractive nuisance, and your argument that you should not get in trouble, that the kid was himself behaving illegally by trespassing, is likely to fall upon deaf ears.
But if we are the government, what can we do? We can make it illegal to traffic in a commodity that many people want to consume. Then, a black market will develop, and of course it will develop primarily in bad neighborhoods where schools are rotten and legal earning prospects are poor. Then, we will occasionally police the black markets, and any young men who actually are tempted to sell the verboten commodity we label as reviled “drug pushers” or maybe even “drug kingpins,” and we put them away for a long, long, time. And the penalties applied to adults will be so significant, in fact, that 12 and 13 and 14-year old kids in these poor neighborhoods will have a comparative advantage in working in the trade, so we will have to arrest them, too, even if we can’t lock them up for quite so long. And we will shake our heads at the immorality of those folks in the bad neighborhoods who allow their youngsters to become drug pushers.
And while we are at it, we can set up ongoing integrity tests for the police, too. As drug transactions are voluntary, they generally don’t involve a direct victim who has incentives to go to the cops (especially if the transaction is not creating a public nuisance). A less-than-vigilant drug enforcement officer will not have complaints piling up on his sergeant’s desk, as he might if he neglected to investigate robberies, say. Anti-drug officers will quickly learn that their own efforts aren’t going to alter much of anything, that people will still buy and sell drugs, anyway, and that the drug use in and of itself only directly harms the user. And the officers also see that they can earn a lot of money, maybe thousands of dollars a month, by turning their heads at the appropriate times. Some of them do, and some of those get caught, and we are happy to label them “corrupt cops” and “bad apples,” and ship them off to prison, too, shaking our heads at their immoral acts that have brought shame upon our nation’s finest.
Now I am no lawyer, but maybe we should think about extending this notion of attractive nuisance to some of our drug laws, too.
Filed under: crime and punishment
