Posner on Decriminalization

Judge Posner has a lengthy essay / book review in the New Republic, discussing the topic of crime and punishment and the fact that too many Americans are in prison. It is worth a read.

Like me, Judge Posner thinks there should be fewer crimes. Decriminalization of marijuana and other drugs is the low-hanging fruit, but Posner does not stop there:

There are also other candidates for decriminalization, such as prostitution and copyright infringement (which should be just a civil offense); and it is time that the age of consent were reduced to 16 or even 15, in recognition of contemporary sexual mores. Gambling should be decriminalized, and probably environmental offenses as well, such as killing a migratory bird; such offenses should be left to the civil law, with its financial sanctions.

I'm with him on prostitution, of course, but some of his other ideas strike me as a little strange—or at least trivial. How many people are wasting away in prison on a copyright rap? And would changing the age of consent from 16 to 15 make any difference whatsoever to prison populations?

I'm all for legalizing all forms of gambling, but again I wonder how many people actually go to jail on gambling offenses. When I was a law clerk, Judge Rosenbaum did preside over a money-laundering trial that came out of an FBI take down of a St. Paul bookie operation, so it's not fanciful. But the defendant who was convicted (one was acquitted) was sentenced to probation. My understanding is that most money laundering and gambling prosecutions are efforts to go after the more public manifestations of organized crime. So I guess if you made gambling legal it might have the side-benefit of making organized crime less profitable.

I guess I'd be okay with decriminalizing migratory bird murder, too, but it would be pretty far down the list as well.

What do you think, Mr. Gillette? Should the Man get out of the copyright-enforcement racket? Any other crimes you'd like to see taken off the books?