Aside from the approved negotiations by which criminals are induced to testify, to plead guilty, to surrender themselves, or to tip off the police, there is a degree of accommodation between the police and the ciiminals--tacit or explicit understandings analogous to what in military affairs would be called the limitation of war, the control of armament, and spheres of influence.

In other criminal business--criminal activity by legitimate firms--like conspiracy in restraint of trade, tax evasion, illegal labor practices or the marketing of dangerous drugs, regulatory agencies can deal with the harmful practices. One does not have to declare war on the industry itself. Only on the illegal practices. Regulation, even negotiation, are recognized techniques for coping with those practices. But when the business itself is criminal it is harder to have an acknowledged policy of regulation and negotiation. It involves a kind of "diplomatic recognition."

Like Foreign Affairs

In the international field one can cold-bloodedly limit warfare and come to understandings about the kinds of violence that will be resisted or punished and the activities that will be considered non-aggressive, or domestic, or within the other side's sphere of influence. Maybe the same approach is necessary in dealing with crime itself. And if we cannot acknowledge it at the legislative level, it may have to be accomplished in an unauthorized or unacknowledged way by the people whose business requires it of them.

We have to distinguish the "black market monopolies," dealing in forbidden goods, from the racketeering enterprises. It is the black market monopolies that depend on the law itself. Without the law and some degree of enforcement there is no presumption that the organization can survive competition--or, if it could survice competition once it is established, that it could have arisen in the first place as a monopoly in the face of competition. Some rackets, too, depend on the law itself--some labor rackets, some blackmail, even some threats to enforce the law with excessive vigor. But it is the black market crimes--gambling, dope, smuggling, etc.,--that are absolutely dependent on the law and on some degree of enforcement. Without a law that excludes legitimate competition, the basis for monopoly probably could not exist.

There must be an "optimum degree of enforcement" from the point of view of the criminal monopoly. With no enforcement, either because enforcement is not attempted or because enforcement is infeasible, the black market could not be profitable enough to invite criminal monopoly (or not any more than any other market, legitimate or criminal). With wholly effective enforcement, and no collusion with the police, the business would be destroyed. Between these extremes there may be an attractive black market profitable enough to invite monopoly.

Cigarette Black Market

Organized crime could not, for example, possibly corner the market on cigarette sales to minors. Every 21 year old is a potential source of supply. No organization, legal or illegal, could keep a multitude of 21 year olds from buying cigarettes and passing them along to persons under 21. No black-market price differential great enough to make organized sale to minors profitable could survive the competition. And no organization, legal or illegal, could so intimidate every adult that he would not be a source of supply to the youngsters. Without any way to enforce the law, organized crime would get no more out of selling cigarettes to children than out of selling them soft drinks.

The same is probably true with respect to contraceptives in those states where their sale is nominally illegal. If the law is not enforced there is no scarcity out of which to make profits. And if one is going to intimidate every drugstore that sells contraceptives, in the hope of monopolizing the business, he may as well monopolize toothpastes unless the law can be made to intimidate the druggists with respect to the one commodity that organized crime is trying to monopolize.

What about abortions? Why is it not "organized?" The answer is not easy, and there may be too many special characteristics of this market to permit a selection of the critical one. The consumer and the product have unusual characteristics Nobody is a "regular" consumer the way a person may regularly gamble, drink, or take dope. (A woman may repeatedly need the services of an abortionist, but each occasion is once-for-all.) The consumers are more secret about dealing with this black market, secret among intimate friends and relations, than are the consumers of most banned commodities. It is a dirty business, and too many of the customers die; and while organized crime might drastically reduce fatalities, it may be afraid of getting involved with anything that kills and maims so many customers in a way that could be blamed on the criminal himself rather than just on the commodity that is sold. We probably don't know which reason or reasons are crucial here, but it would be interesting to know.

Prohibited Commodities

A difference between black-market crimes and most others, like racketeering and robbery, is that they are "crimes" only because we have legislated against the commodity they provide. We single out certain goods and services as harmful or sinful; for reasons of history and tradition, and for other reasons, we forbid dope but not tobacco, gambling in casinos but not on the stockmarket, extra-marital sex but not gluttony, erotic but not mystery stories. We do it for reasons different from those behind the laws against robbery and tax evasion.

It is policy that determines the black markets. Cigarettes and firearms are two borderline cases. We can, as a matter of policy, make the sales of guns and cigarettes illegal. We can also, as a matter of policy, make contraceptives and abortion illegal. Times change, policies change, and what was banned yesterday can become legitimate today. What was freely available yesterday can be banned tomorrow. Evidently there are changes in policy on birth-control; there may be changes on abortion and homosexuality, and there may be legislation restricting the sale of firearms.

The pure black markets, in contrast to the rackets, reflect some moral tastes, economic principles, paternalistic interests, and notions of personal freedoms in a way that the rackets do not. A good example is contraception. We can change our policy on birth control in a way that we would not change our policy on armed robbery. And evidently we are changing our policy on birth control. The usury laws may to some extent be a holdover from medieval economics; and some of the laws on prostitution, abortion and contraception were products of the Victorian era and reflect the political power of various church groups. One cannot even deduce from the existence of abortion laws that a majority of the voters, even a majority of enlightened voters, oppose abortion; and the wise money would probably bet that the things that we shall be forbidding in fifty years will differ substantially from the things we forbid now.

Competition in Crime