The downfall of New York Gov. Eliot Spitzer has made many people gleeful but leaves me sad. It also leaves me with a nagging question. Prostitution is, technically, illegal. Yet in many ways our society condones it. The Yellow Pages (I haven't consulted a copy in a couple of years) used to have pages of ads for "escort services." Any prosecutor could have busted these rings but presumably no one did, because people kept advertising. I was driving around Las Vegas recently, after a speaking date there, and saw a van with a sign (and telephone number) that was clearly part of a prostitution business. Prostitution is famously legal in some counties in Nevada, but not in Clark County, which includes the entire Las Vegas metropolitan area.
When society has effectively legalized something that is still theoretically illegal, there is always the possibility of selective prosecution—targeting individuals who are in disfavor with someone in government. Selective prosecution is tyranny, and the possibility of selective prosecution is a powerful argument for legalization of the behavior that the society has chosen to condone.
Was Eliot Spitzer the target of selective prosecution? Blogger (and Los Angeles County assistant D.A.) Patterico writes:
The feds targeted Spitzer himself based on a suspicious activity report filed by his bank, which noticed him paying large amounts of money in ways that it thought were evidence of criminal conduct. This report says Spitzer is suspected of "structuring" which is the intentional structuring of financial transactions involving cash in amounts less than $10,000 for the purpose of avoiding the filing of "Currency Transaction Report" with IRS and FBI.
Spitzer presumably could have avoided this scrutiny by using his MasterCard. Presumably he didn't do so because he didn't want his wife to find out what he was doing or because the "escort service" wanted to evade taxation and prohibited on-the-books transactions. Presumably he wouldn't have attracted attention if he had patronized a less expensive enterprise.
Obviously Spitzer should resign. He held an office in which he was responsible for enforcing the laws and violated prostitution laws (though they're generally not enforced) and, perhaps, laws on currency transaction reports. As a former federal prosecutor he can hardly claim ignorance of the law. But I'm still troubled by aspects of the case. The law says prostitution is illegal. But it is an openly practiced business. Something's wrong here.