Decriminalization, in the discussions preserved from The Bob Zadek Show, denotes the removal of criminal penalties from conduct that the speakers treat as a social or medical matter rather than a criminal justice problem. The conduct at issue in the excerpts is drug use and sex work. Guests distinguish decriminalization from legalization, and in the later episodes that distinction becomes the central argument.
The criminal justice system and drug use
Bob Zadek opened a 2011 episode by describing what he called the criminal industrial complex, built in the aftermath of a hysteria over violent crime. He said the prison unions acquired enormous political power and that money continues to be spent on a system he called wholly ineffective and simply not needed. He put the figure at about $84 or $85 billion a year spent on the criminal justice system and incarceration, directed primarily at what he described as either not a problem at all or a social problem, illegal drug use. In the same passage Bob stated his own position: that drugs should not be decriminalized, and that drug use is if anything a social or medical problem but by no means a criminal justice problem. He named the prison workers’ unions, especially in California, as the vested interest that spends fortunes opposing any statute or proposition that would soften or reduce sentences, because a reduced population reduces their customers Crime Down: Prison Costs Up (2011).
A 2017 episode returned to the same mechanism. A caller asked Jeffrey Miron about the influence of prison guard unions on drug laws. Miron said he did not know that he had thought specifically about the role of the prison guard unions, and that a lot of people have commented on the private prison movement as a factor in the high incarceration rate and in continuing the War on Drugs, which made sense to him, though he noted that the escalation of the War on Drugs long predates the private prison boom. Bob then answered the caller himself, saying that in California the prison guards union is the strongest public service union in the state and that it vigorously and successfully fought the decriminalization of marijuana when it was on the ballot a number of years earlier. He called them strong opponents of decriminalization because it is bad for business, and the arch-enemy of decriminalization Miron vs. Sessions on the Drug War (2017).
Decriminalization distinguished from legalization
In a 2022 episode Cathy Reisenwitz drew the distinction directly. She said sex workers by and large support decriminalization over legalization, because legalization is generally highly regulated in who gets a license and forces workers into brothels, of which there are not very many to choose from, making the arrangement more exploitative than it would otherwise be. She described the regulation imposed on brothels as corporatist and aimed at keeping incumbents out rather than at health and safety. She added that legalization leaves open a black market: a person who wants to do sex work but does not want to work for a brothel still faces the harms of criminalization, and a large black market makes it more difficult to find and rescue human trafficking and sex trafficking victims. Her conclusion was that decriminalization is the better model for making life better for everyone “I’m From the Government and I’m Here to Help” - Cathy Reisenwitz (2022).
Bob responded that he had not thought of the distinction until she mentioned it, that lights went off in his brain, and that he had always imagined decriminalization as a step on a continuum whose Holy Grail was legalization, but that she had dissuaded him. The same exchange, including the same formulation of the distinction, appears in the 2022 episode on the war on sex The War on Sex (2022).
Evidence from places that have decriminalized
Reisenwitz said that New Zealand is one country that does a better job, and that there are two others that have decriminalized sex work whose names she could not recall. In every place that has tried decriminalizing sex work, to her knowledge, rates of violence against sex workers and against clients have gone down, rates of STIs have gone down, rates of human trafficking have gone down, and working environments are less exploitative. On the United States, she said sex work is generally regulated at the city level, at least full-service in-person sex work, and that while the laws do not vary much, prosecutors and prosecutions vary a lot, because prosecutors have leeway and discretion in whom they prosecute and for what. Police direct their energy accordingly: where a prosecutor does not prioritize these prosecutions, police often harass sex workers less. She cited San Francisco’s last prosecutor, who went on record saying he was not prosecuting adult consensual sex work offenses, and said that where police are able and encouraged to work with sex workers instead of harassing and arresting them, that is one of the best ways to find and rescue true human trafficking victims, because sex workers often know who is being coerced and who is acting voluntarily The War on Sex (2022).
In the 2014 episode Maggie McNeill addressed the danger argument made by social conservatives and by feminists who oppose prostitution — that prostitutes have shorter lifespans and are vulnerable because they carry on their activity in private where they could be victimized. She said it is true to a degree, and compared the activity to dating a man one does not know, whether a blind date, a match website, or being chatted up in public, which nobody proposes to criminalize. The difference, she said, is numbers: a non-professional woman might do this once a week, whereas she did it 16 times a week, so if being in a place with a man you do not know carries X amount of danger, for her it was 16X. It is not that the activity is more dangerous but that it is more frequent. She then turned to criminalization itself, saying that when you criminalize an activity you ensure that the people doing it have to do it out of sight, particularly street workers. She said the Canadian Supreme Court in December struck down the three main laws used to control prostitutes in Canada, and that unlike in the United States, prostitution itself — the actual exchange — has never been illegal in Canada, which she called pretty much the norm in the Western world. What is criminalized in Great Britain, Canada, some Australian states, India and much of Europe, she said, are things around the act, such as so-called brothel keeping America, The Most Sexually Hypocritical Nation on Earth (2014).
Political trends
Bob framed the drug trend in 2022 as states rebelling against Washington, a victory for federalism that libertarians cheer, with states saying that irrespective of the federal crime, it is not a state crime, so the feds stop at the border and the state will allow marijuana use or whatever the statute says. He asked whether a similar or opposite trend exists for decriminalization, legalization, or ultimately licensing, noting that he thought Nevada has licensing. Reisenwitz answered that she is quite hopeful: in 2020, for the first time, a majority of United States voters said they favor decriminalizing sex work; legislation has been proposed in multiple cities; Scott Wiener in California proposed legislation to decriminalize sex work at the state level; she believed Portland had a decrim measure and that a statute was proposed in Michigan; and an organization called Decriminalize Sex Work is actively working on the issue “I’m From the Government and I’m Here to Help” - Cathy Reisenwitz (2022).
Asked whether one political party gets it right more often, Reisenwitz said that as the War on Drugs ramps down she believes the War on Sex is ramping up, by Republicans for the most part. She cited 16 states declaring porn a public health emergency, none of them blue states; politicians talking about new laws and new funding for stings for sex trafficking, who tend not to be Democrats; and the Utah legislature passing a law requiring every device sold in the state to have a porn filter installed and turned on by default. She said Republicans are definitely worse on the War on Sex than Democrats, but that Democrats are not good: SESTA-FOSTA was introduced, she believed, by Kamala Harris and definitely championed by her, and Democrats participate in the sex trafficking moral panicking. Of legislators submitting sex work decriminalization bills, she said all of them are Democrats as far as she can tell. Her summary was that they are both terrible and the Republicans are worse “I’m From the Government and I’m Here to Help” - Cathy Reisenwitz (2022).
Across episodes
The topic recurs in 2011, 2014, 2017 and 2022, and the treatment changes in one respect: the 2011 and 2017 episodes treat decriminalization mainly as the thing prison unions block, while the 2022 episodes, through Cathy Reisenwitz, argue that decriminalization is preferable to legalization and report falling violence, STI and trafficking rates where it has been tried. Bob Zadek’s own position shifts between the 2011 episode, where he states that drugs should not be decriminalized, and the 2022 episodes, where he says Reisenwitz dissuaded him from treating legalization as the goal. The 2014 episode contributes the criminalization argument through Maggie McNeill but does not use the term as a policy demand.
What the sources do not cover
The excerpts do not state the text or holding of any statute or case beyond the names the speakers give, and the Canadian decision is identified only by court, month and the fact that three laws were struck down. No excerpt reports the outcome of the state and city measures Reisenwitz lists, and she herself could not recall two of the countries that have decriminalized sex work. The 2011 and 2022 excerpts break off mid-exchange, so the arguments that followed are not available. Nothing in the excerpts states the founding date or membership of the prison guards’ union, or the terms of the California marijuana ballot measure Bob refers to.