There are criminals and there are criminals. Philosophers and theologians and social workers theorize about their origins; what makes a criminal? Are they all the same? Are some people just born larcenous and violent? Are they products of a hard world, reacting to circumstances beyond their control in the only way they can assert control? Nature or nurture; it’s an old argument and society has tried various ways to address it, with often ugly consequences for public policy and the citizens who have to live under it. There is one broad swath of criminals, however, that are definitely created. By the government. 

The government does this frequently. It is, after all, the literal job description of Congress to makes laws. Conservatives have long made the case that regulations breed a unique species of innocent criminals, harshly punished for crimes as innocuous as misplacing three fish. It is an oft-repeated statistic that the average American commits up to three felonies every day. But most Americans are not, and will never be, subject to these invasive and punitive laws (how many Americans will ever be in a position to misplace any fish?). However, Congress is about to turn millions of Americans into criminals, not some rare handful of libertarian anglers at the wrong place at the wrong time.

A fat-laden, must-pass, omnibus spending bill that Congress just sent to the president for approval was made a bit fatter as the last minute as a provision was added which will raise to 21 the minimum age for purchasing tobacco. Should Donald Trump sign this short-sighted bill, one morning next year millions of adults will walk into a convenience store or gas station with criminal intent. This is how the government creates criminals. 

Well, those people should quit anyway one might reasonably retort. Unfortunately, over 90 percent of them won’t. Only 3-5 percent of people successfully quit on their own. The vast majority of smokers will not be able to afford the professional cessation regimes and expensive pharmaceutical treatments necessary for a possible, but very unlikely, 55 percent success rate. Simple treatments like nicotine gum or the patch don’t get above 12 percent success rates. Raise the tobacco buying age to 21 and millions of Americans will become criminals because they aren’t stopping anytime soon. To top it off, just as tobacco taxes are highly regressive, banning the sale outright to a large segment of the user population will guarantee that the people most impacted will be in America’s most disadvantaged communities: the poor and minorities. 

But it’s illegal to buy tobacco for them now. That’s the whole point. How will they satisfy this forbidden craving? The same way people drank during prohibition, smoke weed where it’s still banned, and snort coke on Wall Street and in the Capitol. They’ll break the law and buy on the black market. The black market for tobacco has been thriving for years, raising the age of purchase is a giant gift to smugglers: Congress just made their most profitable and easy to traffic product even more valuable. 

Tobacco is the most heavily trafficked legal substance on Earth and upwards of $50 billion in global tax revenue is lost to cigarette smuggling every year. This is in very large measure because tobacco is often a country’s most highly taxed consumer good. Countries with higher taxes have higher rates of smuggling, a pattern mirrored in the US as shown in a 2015 study by the Tax Foundation. A 2018 report by the Seattle Times sums it up, “Cigarette smuggling robs Washington State of revenue.”

Obviously, more enforcement is needed so that states can stop hemorrhaging tax money; aggressive countermeasures to catch the scofflaws. Illinois has tried to address their tobacco tax avoidance problems with enhanced fines and jail time. Smuggling cigarettes in that state will net fines of $15 per pack up to 100 packs, getting caught with over 100 packs costs $25 per pack. Selling loosies, single cigarettes, is a $1,000 fine. For the first offense. The second offense is $3,000. And a felony. 

Of course, the people reduced to selling individual cigarettes are probably unlikely to be able to afford a $1,000 fine. This frequently results in poor people losing their jobs, and eventually their liberty. The high fines trap closes around them and lower-income offenders frequently find they are now prevented from accessing necessary public benefits and losing the right to vote or even custody of their children. Immigrants can expect to be deported, even if they have a green card. Whatever their job prospects were beforehand, a felony charge will leave the nefarious purveyor of loose cigarettes at a severe disadvantage in procuring legal employment. They’ll return to the black market to make a living. 

This is how the government creates a permanent class of criminals. 

If they’re lucky, the poor will be arrested – sometimes they just die. Enforcing tobacco tax law is what killed New Yorker Eric Garner, he was arrested for selling loosies in Staten Island when he was choked into submission and death by cops turned tax officers. Of course, poor people and minorities will bear the brunt of negative impacts by this legislation; more economically and historically disadvantaged will be punished for trying to buy tobacco because that’s who smokes the most. Congress has decided it’s okay to turn 90 percent of lower-class young smokers into criminals in the slim hope that 5 percent of them will quit. 

When the government creates one set of criminals, logistics requires yet more lawbreakers to make the black market work. And as this story from the Richmond Times Dispatch makes clear, where black markets reign, all manner of associated crime, including violence, follows. Selling black market tobacco can actually yield far higher profits than dealing cocaine, says William V. Pelfrey Jr., an associate professor of criminal justice at Virginia Commonwealth University’s Wilder School of Government, one of the rare American academics researching tobacco trafficking. “The related crimes are staggering,” says Pelfrey, and encompass everything from armed robbery to assault and possibly murder. Bans never affect just the substance or community that they’re targeting, they always end up covering the entire spectrum of crime. 

What good comes from turning millions of otherwise law-abiding, and already disadvantaged, adults into criminals? Is keeping a few tens of thousands of people from using tobacco worth adding millions, of mainly poor people, to our criminal justice system? America already incarcerates more people than any country on the planet and US law enforcement has a troubling record of inventing fake crimes to arrest people for; Congress should not be making it easier for innocent Americans to go to prison. At the very least, Americans deserve to know the possible consequences of this law. This omnibus bill was already stuffed to the gills with special interest protections and giveaways; hooking this tobacco provision in there as well is just shameful. The manner in which this bill passed is a perfect example of the dysfunction and deceit that is more and more becoming the operating principles of Washington D.C.  Americans deserve a debate on something that will send some of their children to prison and increase crime in their neighborhoods.

UPDATE: Trump has signed the bill into law. The Food and Drug Administration has 180 days to update its regulations.

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