Taxpayers as Victims: Taxpayer Harm & Criminalization
The majority of criminal statutes deal with force and fraud, or their attempt, when employed against another individual. Whenever conduct is understood to affect only the individual actor, many people become uncomfortable and suspicious by its criminalization. The recent smoking debate is illustrative of this instinct: it is now a crime to smoke in most places that expose others to one’s secondhand smoke, but no jurisdiction has gone so far as to criminalize smoking in all cases, for the good of the individual smoker.1 How, then, can we account for the proliferation of personal safety crimes, all ostensibly aimed solely at the good of the actor? Why, for example, is it a crime not to wear a seatbelt? Why can we be arrested for failing to evacuate our homes during a disaster? To rebut the charge of intrusive paternalism, and avoid arousing the suspicion mentioned above, lawmakers in this area have found it necessary to buttress “sanctity of life” arguments with something more. They have strained to justify these proposed or existing criminal prohibitions as really affecting the lives of other people besides the actor, and in a detrimental way. In doing this, they have sought to bring these prohibitions squarely within the heartland of the predominating individualistic sentiments of many citizens.
Over the past fifty years, a new argument has arisen that enables lawmakers to do just that. I call it the taxpayer-harm2 argument, and remarkably, it has received almost no attention by legal scholarship. It generally looks like this: Because the government now provides a great many services to individuals, and yet these services must inevitably be paid for through taxes, it makes sense to say that any individual conduct that leads to the provision of those services ultimately affects everyone else—such conduct incurs government spending, which is in turn a cost borne by the taxpayers. While the taxpayer-harm argument can be (and has been) used to justify a great myriad of governmental restrictions,3 this Article will focus on how it has been used by legislators, judges, and commentators to justify criminal statutes. Overall, I argue that this reliance is mistaken, and that civil, not criminal law, is the more appropriate mechanism to use when addressing taxpayer-harming conduct.
