Are drug crimes “victimless”?

At SL&P, Professor Doug Berman’s unsurpassed blog on all things relating to criminal sentences, one will find an interesting post from another thoughtful (but very young-looking) professor, Alex Kreit, about whether one can honestly classify drug crimes as being without victims.  It is worth reading.

RGK

8 responses

  1. I appreciate Kreit’s goal of discussion. I do think absolutes can be difficult stances to maintain, and tend to be uninformed or, sometimes for better and sometimes for worse, informed mainly by personal experiences. Despite my own extensive research on the topic, I will always be moved by personal experiences that have demonstrated both the terror of illicit drug use, the terror of legal drug use, and the terror of current drug laws. Note, these are all negatives – telling us, at best, what we should not be doing. The recent CNN special on a young girl whose life-threatening seizures (from which she suffered for several years) and other ‘golden’ uses (anecdotal in nature) of illicit drugs are the only positive stories I recall on why decriminalization or legalization would be wise.

    With all that said, I think Kreit’s reasoning deliberately ignorant. The possibility that selling drugs creates a victim because the buyer may then ignore his or her child – and then to challenge the reader with “how can anyone say that drug crimes are “victimless” with a straight face?” – is only even relevant if one ignores the (what I have always thought was the obvious) colloquial meaning of victimless. Victimless here is relative. By this reasoning, video games are not victimless. Cigarettes and alcohol surely aren’t. Maybe college and full-time jobs for recent parents should also be investigated (granted, the latter isn’t a product). Contagious obesity would render millions victims to Doritos.

    Of course, I don’t think college is ‘bad for a kid like drugs are,’ hurr durr. But the argument would better be about why drugs are worse than those other things such that they deserve to be illegal, criminalized, and criminalized to the degree they are currently (in that order).

    To your point, RGK (What do you prefer ’round here, Your Honor? I still don’t refer to the first judge I worked under by anything other than Judge!), it seems to me the biggest challenge to an honest (wo)man’s classification of drug crimes as being without victims (of course, we’re only talking about certain narrow subsets of drug crimes), would actually be whether the systemic social risks and harms of any single user merit criminalization (and to what degree). I’d argue no, but I certainly respect people who disagree. It seems to me Kreit is not affording his opponents-in-argument the same courtesy.

    • Sean,

      Two things. First, what the professor tries to raise is the moral (think “just punishment”) dimension of drug crimes. I agree that his example is not perfect, but it does provide a pretty good point of departure for discussion by law students. Second, I agree that “users” (and nothing more) present a far different issue for legislators who must decide what is and is not a “crime” than compared with the types of drug offenses that I see in federal court. Frankly, I don’t have strong views-one way or the other-about whether the use of a drug, and nothing more, should be considered “criminal.”

      As for the question of how to refer to me, there is a joke lurking somewhere there. In any event, do whatever seems comfortable. I can tell you that folks at work often refer to me as RGK and that is fine with me.

      All the best.

      RGK

  2. Victimless here is relative. By this reasoning, video games are not victimless. Cigarettes and alcohol surely aren’t. usw

    This strike me as a non sequitur. The question here is whether drug crimes, as Judge Kreit uses the term “drugs” are victimless, not whether other, legal drugs, or other entertainment paraphernalia, also are “victimless.” That’s what makes the argument…about why drugs are worse than those other things such that they deserve to be illegal, criminalized, and criminalized to the degree they are currently (in that order) a valid, but separate, debate.

    That said, I have a different take on Kreit’s discussion venue. He points to victims uninvolved in the drug purveyance–the child, or the home owner, collateral damage victims–but he ignores what seems to me to be the biggest victims of drug crimes: the drug user.

    Even “benign” drugs like marijuana are addictive (and more destructively so than nicotine) and brain-altering (more insidiously so than alcohol). Victims from collateral damage surely exist, but the proximate victim is the user, hooked on the product and so sorely restricted in his ability to stop doing business.

    Note, though, I do not excuse the (my) victim from his complicity: unless he can show that someone stuck a gun in his ear (or a needle in his vein against his will), he had a choice at the time of initial use, and subsequent to that addictions can be overcome. Either will be harder for some than for others, but hard means possible.

    The purveyor in this not-victimless crime, though, for his role as the superior (and not equal) in this relationship should pay the higher price.

    Morality? For the collateral damage victims, the morality is apparent. It’s the morality related to the victims as I see them that wants debate. And on that score, the debate belongs in the community IMNSHO; government does a lousy job of dealing with morals.

    Eric Hines

  3. I should add that I don’t come to this subject entirely objectively (but as a rough, tough Systems Engineer, of course I’m coldly objective). My older brother, despite being a PhD in Psychopharmacology, was an alcoholic and a marijuana user; his life of dissipation killed him at too early an age, depriving his children of what, despite all that, was a loving and effective father far too soon.

    Eric Hines

  4. Thanks for the shout, Judge (and the compliment re: my youthful looks–that picture is two years old or so now, so hopefully I’ve still got them! :)

    And great to see the discussion here.

    Re: Sean Vitka’s point: I should have been clearer in my post at Doug’s blog that it was intended as an outline of how I try to procede through the material to generate class discussion (and not a reflection of my own views on the merits of the issue). In particular, the “with a straight face” line and lead-up to it is intended (as the Judge put it) as a point of departure for discussion. The line is filled with some holes by design to get students to present the opposing view (and the points you raise re: video games, etc. are exactly some of the points I like to draw out on the other side.)

    Needless to say, there’s plenty more to these issues and debate than I put in my blog post. My guest posts at Doug’s blog are just about my law school casebook, used for teaching drug crimes courses, so my aim was really to give a sense of how I like to take students through initial discusison of this issue and the material I use to do it.

    I should add that I like the Houseman case because it helps get into the discussion in a less emotionally charged way than thinking about some of the more troubling (and often personal to some students) harms caused by both drug abuse and drug enforcement. I find that leading the discussion with weightier issues can make it trickier to draw out the issues. Of course, as the discussion goes on, I get into those issues and also into some of the more theoretical debate–particularly with Doug Husak’s piece which I think presents a very high-level yet also accessible case against the criminazation of some driug activity. Whether one agrees or not with Husak’s piece, I think it is really fantastic for thinking about the issue.

    Anyway, great to see the discussion here on these questions, too!

    -Alex

    • Alex,

      Great to hear from you. The notion of “just punishment” as found in section 18 USC section 3553(a) is often driven by how a federal judge perceives the offense to have impacted others. Thus, the “victimless” crime debate in the context of drug prosecutions is very important to what federal judges do every day when assessing what punishment is just. Great job.

      By the way, haven’t you noticed when old guys remark about the “youthful looks” of someone else that there is an air of jealousy and nostalgia. For myself, the most horrifying aspect of my day frequently occurs in the morning when I look into the mirror to shave and some old grizzled guy, who looks nothing like me, peers back. “Who is that old bastard?” I mutter.

      All the best.

      RGK

  5. Pingback: Only The “Foolish” Call Drug Crimes “Nonviolent” | Simple Justice

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