Why we need evidence-based criminal politics

Criminal laws should always be the last resort. Everything needs to be evaluated, or else you will end up ruining the lifes of innocent people. There are many ways to solve problems and the most powerful and most restricting one the government has in their arsenal is the criminal law.

Evidence-based approaches require a lot of time, but it must also guarantee the legality of what it tries to determine the harmfulness of. Let’s assume that a toygun can either be good, or bad. There is no clear yes, or no as of now. Now imagine yourself as a lawmaker, which side would you choose?

A - I would choose bad

  • You are no longer able to peform large-scale open studies on individuals since posession is illegal.

  • You are unable to see an effect, due to the fact that it’s impossible to contribute the abscence of said material to an increase, or decrease of crimes committed. Too many variables, it’s significantly harder to proof a negative and there were no prior studies done.

  • You are putting two groups of people at risk of being harmed. Owners are being criminalized for an unproven fact and the people they might hurt could face more harm. What if the now prohibited material did actually contribute to less abuse?

B - I would choose good

  • You are able to perform large-scale studies and also analyze feedback data that shop owners get from their customers. You are also able to see how big the market is and extract data from there for further risk analysis.

  • You are much more likely to see an effect on the crime rate. Growth in the legalized market could correlate to the crimes in a positive, or negative way. With the ban you have zero data.

  • You are only putting one group at risk. Remember that it’s the vulnerable group from option A.

I genuinely don’t see how a ban is going to help the ones it wants to protect. They are equally at risk in both scenarios, but with the difference that the consumer is being criminalized in one of them. It will also take much longer to proof the harmlessness of something once it’s illegal and this in turn lenghtens the period of time in which the potential victim is at risk of being harmed.

An added problem is that favorism plays more of a role in deciding the criminal nature of things. The expert/reform commission that was formed last year with the task to reform the laws regarding CSAM in Germany for an example said that fictional material should become fully legal (instead of just posession) as there is no legal interest in protecting drawings and that ressources would be wasted, since there is no risk of these materials causing harm. Not one of their suggestions was implemented. Now that’s what I call a reform commission.

Experts are not being heared for moralistic values.