Two really good criticisms of my views about drugs, violence, and victimless crime

In order to understand this post, please read two of my earlier posts and the comments to each. See here and here.  Now, please read Matt Brown, Tempe Criminal Defense, Victimless Non-Violent Federal Drug Crimes and Scott H. Greenfield, Simple Justice, Only the “foolish” call drug crimes “nonviolent.” Those responses to my earlier posts are extremely well-written, persuasive and very critical of my views but entirely fair and respectful. I urge you to read both of them.

Here are several observations:

* Mr. Brown and Mr. Greenfield are correct in one of their primary criticisms.  I was plainly wrong to assert so strongly that all federal drug crimes have “victims” and all federal drug crimes are “violent.”

*In defense of my rhetorical hubris, I believe that much of the rhetoric coming from reformers about draconian drug laws, particularly at the federal level, is misleading. The words “victimless” and “nonviolent” are thrown around far too casually.  That doesn’t justify my hyperbole, but it does explain my visceral reaction to those words.

*I agree (and I said as much earlier) that in the federal courts we are sending far too many people to prison for far too long because they committed drug crimes. I also agree that the ravages of poverty, and our nation’s stubborn unwillingness to honestly address poverty, is at the root of many drug crimes. However, I am pretty sure that my response to poverty would be far more authoritarian than most could stomach because of what I see daily in the courtroom. I have tried to write frankly about that in a post entitled “we can’t handle the truth.”

*If we are to have an intellectually honest debate, we need to describe facts rather than characterizing them. That is, we must stress candor rather than rhetoric.

*In a truly kind and gentle manner, Mr. Greenfield suggests that my writing is sometimes “awkward.”  He is absolutely right. Finding the right “voice” for this blog is a struggle. Besides, I am a bit of freak anyway (AWKWARD).


9 responses

  1. I must say that I don’t think these two bloggers have done much to engage your original point, beyond complain that you apparently asserted things too definitively for their taste. The argument that the drug trade only involves violence because its illegal is right to a point, but seems overblown to me. I don’t understand how you could ever have a safe, legal market in crack or heroin. Pot (like alcohol), yes, but hard drugs are both so inherently addictive and destructive to human life, that I don’t understand how any society could tolerate open sale of them in practice. Also, while the illegal drug trade may inherently tend towards violence in part because it’s illegal, that doesn’t mean that the individuals who engage in that violence (or carry guns in willingness too) are somehow not responsible for their actions. No one forced them to take up that line of business.

  2. Jay,

    I agree with most of your comment. But, it is also true that I overreached with my “all” and “every” language. I know better, and these two fine defense lawyers properly called me on it. That said, I pledge not to use “all” and “every” when I write about the harm caused by federal drug crimes, and I would hope that others would pledge not to use “nonviolent” and “victimless” as descriptors of the harm caused by federal drug crimes.

    Thanks for taking the time to write. All the best.


  3. We once did have a legal market in heroin. Heroin was the trademark used by Bayer from 1898 to 1924 to legally sell the stuff. Opoids extremely similar to heroin are legal for use as prescription medicines today. Morphine and codeine are the two most commonly used. Chemically, heroin is morphine with two acetal groups on it.

    With drugs like these, there will be some black market activity even if they are legal for prescription use, as we see with morphene and codeine (Vicodin for example is a codeine/acetaminophen combination). But there will be much less violence than we currently have.

    Additionally, some drugs which are illegal like MDMA and marijuana do not have these same problems. If marijuana were legalized fully I would expect the marijuana market to be no more violent than the tobacco market.

    I agree that people who engage in violence should be held to account for that violence, but if the government wants to punish someone for violent activity, it has to prove that violence beyond a reasonable doubt.

    Would legalization of less harmful drugs, and decriminalization of more harmful ones be a panacea? No. But I think there is no doubt that it would reduce violence substantially, which is a good enough reason to do it.

  4. Peter H.,

    If you don’t practice federal criminal law, you might assume that dope dealers are rational actors. That is seldom the case, but let’s assume they are.

    Unless we as a society are willing to allow unlimited access to drugs that are indisputably addictive, it is likely that there will be a black market for those drugs and it is likely that there will be extreme violence. As a matter of concern for our fellow men and women, I don’t think our society could long tolerate unlimited street corner sales of stuff like heroin, meth, crack and the like. If you endeavor to regulate those drugs to minimize the destruction of human life wrought by unlimited distribution, you will probably still create a black market with the violence that goes with it. As for less harmful drugs, like marijuana, perhaps the states that are experimenting with decriminalization will give us good empirical evidence from which the feds can make a reasoned policy choice about the trade-offs. I hope so. For now, continuing the present “put ’em in prison” approach, while significantly reducing sentencing length, seems to me to be the safest policy course for society.

    Thanks for your thoughtful comment. All the best.


  5. I quite agree that dope dealers aren’t rational actors. I agree with your other points that without wholesale legalization there will be a black market, and that wholesale legalization of highly addictive drugs is very problematic due to the terrible toll those drugs wreak on their users. I don’t pretend we can solve that problem, but I think we have the wrong balance between the poles of intense criminalization and full availability.

    I think also your point about federal defendants is well taken. The feds from what I’ve read don’t charge people without fairly big quantities, except for things like idiots who carry personal use quantities through the border and get busted by CBP. But Nebraska not having a land border with Canada or Mexico, you wouldn’t see many of those.

    I think that a big part of the problem with less dangerous drugs is the nationalization of criminal law. So for example, a marijuana store in Seattle, legal under state law, is still a robbery target because they have to carry lots of cash. And they carry lots of cash because the DOJ will charge any bank who services them with financial crimes facilitating illegal drug trade. And DOJ will prevent anything other than micro-businesses from working in that market. If someone got big enough to be advertising on TV next to Miller Lite, they’d be imprisoned.

    The reason this matters is that dope dealers aren’t rational. Big business however, is ruthlessly rational. If Amazon could sell pot in Washington state without putting the whole multi-billion dollar firm at risk, they’d remove a ton of violence from the system. Amazon will sell a better quality lower price product with more reliable delivery than any dealer who has ever stood in your courtroom. The dope dealers you see would be knocked out of business by competition from the most ruthlessly efficient machine America makes: greedy businesses.

    Thank you for the reply and I definitely respect your points and perspective on this. I think we are actually fairly close in position as far as the consequences of these drugs, and just differing on the tactical means to minimize those harmful consequences.

    You are correct that I don’t do criminal law. I work in patents, which is thankfully bereft of dope dealers.

  6. Peter H.,

    Utterly fascinating point about Amazon. As I think about a it, perhaps Silk Road, which created a huge online drug marketplace in the “deep internet,” was using the Amazon business model you speak about. It would be fascinating to know whether and to what degree Silk Road transactions generated violence or whether Silk Road “rationalized” the market place. It would also be important to know what impact Silk Road had on price.

    After the prosecution of the Silk Road founder is over, and the records become available, I hope law and economics scholars gather the Silk Road documents and evidence and put that “business” under the law and economics microscope. We would be sure to learn a lot about about a lot of things.

    Oh, and regarding your patent practice, my experience is that patent lawyers like you are almost by definition brilliant. So, if your patent gig ever goes south, you might find another challenging practice in criminal justice policy. We need hard headed analysis like the one evidenced by your comment.

    You have my sincere thanks for a very insightful comment. All the best.


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