Criminal law


America is the world’s leading incarcerator; more than 2 million of its people are locked up in its prisons and jails. Another 50 million or so Americans have criminal records.

We’re a nation that believes in law and punishment, evidence notwithstanding. But a cursory examination of state codes sheds new light on the word “outlaw.”

The soap-opera scandal surrounding former Gen. David Petraeus has focused attention on the nation’s antiquated adultery laws. As it turns out, Mr. Petraeus’ recent resignation as CIA director resulted from more than a misdeed.

Adultery is a criminal act in Virginia, his state of residence, as it is in 22 other states, though apparently not in Ohio. And in a handful of states — Michigan, Idaho, Massachusetts, Oklahoma, and Wisconsin — adultery isn’t just a misdemeanor; it’s a felony.

Felonies are crimes such as armed robbery, murder, sexual assault, and other transgressions often associated with lengthy prison sentences. Fortunately, adultery is rarely prosecuted. Police and prosecutors have better things to do.

But such laws still clutter the legal code, open the door for selective and arbitrary enforcement, and make America look pretty silly to much of the rest of the world. They send a message that as a society, we have not moved beyond requiring citizens to adhere to the moral dictates of other people.

Even mainland China, which regulates how many children some citizens may have, doesn’t outlaw adultery. Adultery laws are part of America’s puritanical past, a belief that harsh public sanctions should support religious values. Even today, some social conservatives want laws to stand behind private morality, but that’s no longer the majority view.

Few people today would celebrate adultery. They may call it immoral or even a sin, but most people don’t think it’s a reason to call the police.

States should rid themselves of these archaic and unconstitutional laws, but that would require enough politicians with sufficient courage to risk being called pro-adultery. So it’s a safe bet that laws that make a lot of people criminals will be around a while longer.