By David Boaz
Kentucky attorney general Jack Conway went on TV Tuesday with an ad attacking Rand Paul for . . . endorsing freedom. The ad shows a clip from a
2008 panel show in which, according to the Louisville Courier-Journal, there was a “wide-ranging discussion that involved such things as the wisdom of motorcycle helmet laws, the lottery and expanding gambling. In response to a question about whether he favors more gambling, Paul said he opposes ‘legislating morality’ and then added: ‘I’m for having … laws against things that are violent crimes, but things that are non-violent shouldn’t be against the law.’”
The ad features that last sentence and then cuts rapidly to uniformed sheriffs criticizing Paul’s position. But note that they never really criticize what Paul actually said. His comment came in the context of a discussion of motorcyle helmet laws, gambling, and the state lottery. The sheriffs suggest that Paul wants to legalize selling drugs to a minor, mortgage fraud, burglary, theft, and promoting prostitution — and they say that we should “treat criminals like criminals.” But of course, of the activities mentioned, “promoting prostitution” is the only that a libertarian would be likely to legalize. (Paul has never said he would do that.) Burglary, theft, fraud, and selling drugs to children are clearly crimes, and it’s dishonest to suggest that Rand Paul would change those laws. Conway may be a slick Louisville lawyer, but he may find that Kentucky voters won’t find such claims credible.
Paul might have been been wiser to use a term like “victimless crimes” or “actions that don’t violate anyone’s rights” in discussing “things that . . . shouldn’t be against the law.” Obviously burglary and theft violate rights and have victims, while gambling and riding a motorcycle without a helmet don’t. And libertarian legal theorists might question the wisdom of putting nonviolent offenders in jail; it would often make more sense to demand restitution and fines for economic crimes, for instance, rather than putting the offenders in expensive and overcrowded prisons.
But Rand Paul was making sense in 2008 when he said that a free society shouldn’t punish people who aren’t harming other people. And the attorney general of the Commonwealth of Kentucky should be embarrassed to broadcast such a dishonest twisting of Paul’s statements. If Conway thinks people should be imprisoned for gambling and riding a motorcycle without a helmet — the issues Paul was discussing — let him put up an ad saying so. And then see whose side the people are on in an honest debate.
It’s actually striking that in a conservative state, Conway did not mention any of the normal “victimless crimes” — not gambling or helmetless riding, not pot smoking, not even pornography. He apparently thought he could only win this issue by claiming that Rand Paul held the ridiculous position that burglary, theft, and fraud shouldn’t be illegal. Let’s give two cheers for the social progress that his decision reveals.