Commercialized vice

SIGNIFICANCE: Commercialized vice constitutes an ambivalent area in American justice as it involves mostly voluntary and consensual activities that are widely regarded as not harming anyone and thus frequently designated as victimless crimes.

When not merely viewed as a social deviance, commercialized vice is often described as crime against public morality. These so-called victimless crimes include prostitution and related offenses and obscenity or pornography.

Prostitution and Related Crimes

In addition to actual or attempted prostitution, commercialized vice includes keeping bawdy houses, procuring, and transporting women for immoral purposes (less frequently, men or minors). At first, prostitution was not an offense per se under English or American law. It was only in 1914 that an Indiana statute defined the trade and only in 1917 that Massachusetts made prostitution directly punishable instead of charging solicitation, vagrancy, disorderly conduct, loitering, and the like.

By 1920 most states, using their police powers to protect the health, safety, welfare, and morale of the citizens, criminalized prostitution, with the exception of Nevada, where the matter is still decided at the county level. Despite variations, state and local criminal statutes may apply to the prostitute, panderer, pimp, customer (the “john” or the “jill”), the economic beneficiary of the prostitute’s activity (if other than the pimp), and the trafficker in prostitutes. In 2023, Maine became the first state to decriminalize selling sex, although buying it remained illegal.

The federal government, using the commerce clause of the US Constitution as its authority, has taken part in regulating these offenses beginning with the Mann (White Slave Traffic) Act of 1910, which bars the interstate transportation, persuasion, or coercion of women or girls into prostitution. Under its war powers, the US Congress subsequently banned prostitution around military bases beginning in World War I.

Streetwalkers, who make up an estimated 10 percent to 20 percent of all prostitutes, account for some 85 percent or more of all arrests because they are the most visible prostitutes. In this regard, they differ from prostitutes in other categories such as call girls, in-house sex workers, and workers in massage parlors, photo studios, strip clubs, and elsewhere. There is little empirical evidence about the effectiveness of such arrests in curbing prostitution, as pimps often pay fines or hire lawyers to get their employees released from jail. Police often consider that more serious priorities than prostitution need attending to, and the general public and even the courts are ambivalent about this area of the law. Still, there are some notable examples of city mayors publishing lists of “johns” or of police vice squads, a few headed by women, strictly enforcing the laws relating to public morality or decency.

Male prostitutes also ply their trade, primarily in the gay sex market. Many of these cater to pedophiles, often older men for whom children are the preferred sex objects. A few males are hired by older women, especially at tourist resorts where the customers, seeking adventure and fun, can also retain their anonymity. As with their female counterparts, male prostitutes fall into various categories, such as street hustlers, bar hustlers, call boys, kept boys, and escorts. Even into the twenty-first century, which has seen an unprecedented acceptance of homosexual activity, there were still antisodomy laws at the state level. In 2003, the US Supreme Court overturned its decision in Bowers v. Hardwick (1986) through its decision in Lawrence v. Texas. However, as of 2023, twelve states had not heeded the decision, and their antisodomy laws remained in force.

Obscenity and Pornography

The crime of obscenity or pornography (“porn” is the nonlegal term for obscenity) involves the selling, delivering, airing, or supplying in any form of sex-related materials that are considered offensive according to certain standards. Generally, these materials or acts have to go beyond the customary lines of candor in description or representation. Just what the benchmarks of acceptability should be has been hard for the U.S. Supreme Court to define. As Justice Potter Stewart stated in Jacobellis v. Ohio (1964), he could not describe pornography, “but I know it when I see it.” Justice John Marshall Harlan opined in Cohen v. California (1971) that “one man’s vulgarity is another man’s lyric.”

Beginning with the case of Roth v. United States (1957), the Supreme Court has held that once it is ascertained, obscenity falls outside the protection of the First Amendment of the US Constitution guaranteeing freedom of speech, actual or symbolic. For all that, the justices made it clear that nudity and sex are not by definition obscene but only if they are “hard-core pornography.” To be obscene, according to the landmark ruling of Miller v. California (1973), a work, taken as a whole, must be deemed by “the average person applying contemporary community standards” to appeal to the “prurient interest” or to depict “in a patently offensive way, sexual conduct specifically defined by applicable state law” and lacking “serious literary, artistic, political, or scientific value.”

For all that, the courts will always have difficulty negotiating the fine line between the right of citizens (even children) to read, see, and hear what they wish and the right of others to protect minors and the community in general from moral “degradation.” Accordingly, recognizing that in a pluralistic society differing values will be in evidence, by the twenty-first century the Supreme Court, referring to artistic, literary, scientific, or political merit or deferring to community standards, had shown wide fluctuations of opinion in the decisions handed down in this area of commercialized vice.

Drug-Related Crimes

Of relatively recent origin, the so-called drug crisis in the United States relating to the abuse of narcotics is not a single problem but, in fact, a broad range of them. It is part of a global situation involving a vast network of growers, smugglers, wholesale dealers, and street retailers—even criminal justice officers who cannot resist the money involved in payoffs, in extorting money from the dealers themselves, or in selling the confiscated goods.

Historically, the substance most widely used in the United States has been marijuana, at one time often employed, just as cocaine, in popular elixirs. By the 1970s, cocaine had again become the preferred “hard” narcotic. The invention of newer and more powerful or customized drugs, such as crack cocaine, reportedly popularized addiction even more, despite fluctuations in the use of all drugs.

Beginning in 1906 with the Pure Food and Drug Act and in 1914 with the Harrison Narcotic Drug Act, the federal government has imposed gradual control over drug use involved in interstate and foreign commerce. In 1919, two US Supreme Court decisions (United States v. Doremus and Webb v. United States) declared almost all forms of drug addiction illegal. Federal control was tightened in the 1930s, as heroin use spread and as organized crime became more involved in the distribution and sale of illegal drugs. State control was not far behind.

In 1970, the Comprehensive Drug Abuse Prevention and Control Act consolidated all existing measures in the federal code. Stricter penalties for drug abuse and trafficking went into force in the wake of the Vietnam War-era drug epidemic. Most states began to follow the US Department of Justice-recommended uniform code, updated by the Uniform Controlled Dangerous Substances Act of 1974.

Since then, some states have relaxed the rules, including decriminalization, and in some cases full legalization, of a few of the drugs, such as marijuana, which have been shown to have therapeutic value. By 2024, twenty-four states as well as the District of Columbia had legalized cannabis for recreational use.

Gambling

Gambling is the staking of money or something else of value on an uncertain future event. The element of luck is the controlling factor in gambling, so wagers are made on the outcome of a game of chance or skill. The range of games, devices used, and places where bets are made is very wide.

Since 1948, after a half century of regulation by states, the federal government expanded its role in regulating gambling. By the 1970s, federal statutes had been enacted to control, among other things, interstate and foreign transportation of gambling paraphernalia, the transmission of wagering information through wire facilities, state-conducted lotteries, and taxes on betting. Accordingly, by the twenty-first century, the federal government was extensively involved in regulating the promotion of illegal gambling and in sanctioning violators. At the state level, wagering on dog races or cock fights—especially as these activities often violate animal rights legislation—are widely outlawed.

At the same time, however, a number of gambling activities are being legalized—for example, church raffles and bingo games, state lotteries, and American Indians casinos. As in the case of other so-called victimless crimes such as drug use, arguments are being made that legalizing games of chance will reduce the profits of running illegal ones, especially by organized crime, and that this, in turn, will curtail the corruption of officials and law-enforcement agents who apply gambling laws in a discriminating manner. There is disagreement on most of these points, and the fear, also voiced in connection with decriminalizing of other so-called victimless crimes, is that ancillary criminality—such as prostitution—may increase at gambling casinos and other gaming locations.

Alcoholism

This form of commercialized vice involves drunkenness and intoxication with alcoholic beverages. In the United States the consumption of such beverages—beer, wine, and hard liquor—is relatively high. As in the case of drug abuse, alcoholism—defined as excessive use of these beverages—is closely linked to violent crime, driving while intoxicated with the resulting automobile crashes, problems in the workplace such as absenteeism, disorderly and violent conduct of various kinds, family abuse and breakup, and other social ills.

Criminal law has attempted to check the consequences of some alcohol abuse by raising the minimum drinking age in states (often to as high as twenty-one years) in public places, limiting bar hours, and checking secondary criminality flowing from middlemen profiting from the national addiction by operating after-hour bars and the like. However, the dismal experience of the Prohibition era (1919–33), when the Eighteenth Amendment of the US Constitution, implemented by the Volstead Act of 1919, unsuccessfully barred the manufacture, sale, transportation, import, or export of intoxicating liquors taught an object lesson. Thus, the “demon rum,” seemingly as American as apple pie, is no longer perceived as a major public menace.

Vice Control

Law, including in the field of criminal justice, is always the product of the forces of time and place, and undoubtedly the American mosaic has evolved. Thus, when it comes to commercialized vice, what was considered widely reprehensible in an earlier, more puritanical age—as socially or legally deviant—may not be so today. Paralleling a supposedly better-educated and more sophisticated public and the socializing influence of the media, there has been a corresponding change in mores and in the laws and court decisions that reflect them over time.

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