Controlled Substances # 5: Are Drug Crimes “Victimless”?

September 11, 2013

Alex Kreit, guest-blogging on his new casebook, Controlled Substances: Crime, Regulation, and Policy (Carolina 2013):

Mylast post touched on some of the legal and policy questions that come withinvestigating crimes where there is no complaining witness. The absence of a complaining witness leadssome to refer to drug crimes as “victimless.” This description is accurate in the narrow sense that parties to a drugtransaction don’t have an incentive to report the crime to the police.

Butdoes that fact have any moral relevance?

Drug prohibition offers a great platform for examiningthe theories of punishment. Though we may disagree about how much punishment athief, a killer, or a drunk driver should receive, few question that theft,murder, and driving under the influence should be against the law. By contrast, a number of theorists, policyanalysts, and (I’ve found) law students believe that the criminalization ofsome or all drugs is unjust and/or unworkable. Of course, many others think that punishing drug manufacture, use andsale is a moral imperative.

The diversity of student views on drug prohibition canmake for some very fun and rewarding classroom discussion. The second chapter of my casebook focuses onthis debate, with materials that mix the theoretical with the real world.

The book divides coverage into two sections, roughlytracking deontological and consequentialist arguments. The first section (which I’ll focus on inthis post) engages the “victimless” crime debate and asks whether drugcriminalization is just. The secondsection asks whether drug criminalization works.

I try to draw students into the “victimless” crimedebate with a 2011 case — Wisconsin v.Hoseman — that presents the issue in an engaging and, I think, somewhatunexpected setting. The case centers ona marijuana grower who was thoughtless in more ways than one. Hoseman rented an 1885 Victorian home andconverted it into a six-figure marijuana business. But there was one problem for Hoseman. Apparently between tending to the plants andselling the product, he forgot to pay the rent!

After several months, the home’s owner flew back toWisconsin from Las Vegas (where he was living) with plans to start an evictionaction. Once the owner discoveredHoseman’s marijuana grow operation, however, he decided to call the policeinstead. Hoseman was convicted of manufacturing marijuana and ordered to paythe home’s owner over $100,000 pursuant to Wisconsin’s victim restitutionstatute.

Despite overwhelming evidence of damage to the home,Hoseman argued that marijuana manufacture is a “victimless” crime and that thehome’s owner was not a “victim” as the term is defined in Wisconsin’srestitution statute.

Hoseman isn’t a very sympathetic character. And, not surprisingly, the Court disposed of hisarguments in short order, reaching the “inescapable conclusion that the actionstaken in furtherance of the conspiracy to manufacture marijuana caused thedamage to the resident.”

The case poses a real challenge for students who believethat drug crimes are victimless. Sure,Hoseman’s customers aren’t likely to call the police, but that doesn’t mean heisn’t causing harm to others. In thiscase, there’s no doubt that Hoseman’s marijuana operation harmed the owner ofthe Victorian home. In other cases, adrug user may harm their child through neglect. With all these victims, how can anyone say that drug crimes are“victimless” with a straight face?

After I present students with this take on things, Itry to lead them to a possible counter-argument: the home’s owner was a victimof “vandalism,” not a victim of “marijuana manufacture.” It certainly would have been possible forHoseman to grow marijuana without damaging the Burbeys’ home by, for example,growing a smaller number of plants or designing his operation with greatercare. Similarly, Hoseman could have caused just as much damage to the Burbeys’home if he had grown a legal plant (say, tomatoes) in the same fashion as hehad grown the marijuana.

This discussion of Hosemannicely sets up the deeper examination of these issues that follows, relyingon more theoretical materials including the obligatory excerpt of On Liberty, as well as excerpts fromarticles by Bernard Harcourt, Doug Husak, Steven Calabresi, and Dan Kahan.

I always find these class sessions to be some of themost enjoyable in the course. But they canalso be the toughest. Many students willcome to this debate with firmly held views that are often driven by personalexperiences (from a bad encounter with the police to seeing a loved onestruggle with addiction.) For that reason, when I teach this material,my goal is always to try and gently challenge the students to better understandand critically reassess their own beliefs.

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