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August 30, 2012

"Drugs, Dignity and Danger: Human Dignity as a Constitutional Constraint to Limit Overcriminalization"

The title of this post is the headline of this new article by Professor Michal Buchhandler-Raphael now available via SSRN. Here is the abstract:

The American criminal justice system is under tremendous pressures, increasingly collapsing under its heavy weight, thus requiring inevitable change.  One notable feature responsible for this broken system is over-criminalization: the scope of criminal law is constantly expanding, making individuals liable to conviction and punishment for an ever-wider range of behaviors.  One area where over-criminalization is most notable concerns victimless crimes, namely, individuals who engage in consensual conducts which inflict only harm on themselves but not on third parties, such as prostitution, pornography, sadomasochism, gambling, and most notably, drug crimes.

Despite increasing scholarly critique of the continued criminalization of these behaviors, particularly drug offenses, significant limits on the scope of victimless crimes have not yet been adopted.  Two features characterizing criminal law account for this: first, in contrast with criminal procedure, constitutional law has not placed any significant limits on substantive criminal law, and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors.

This article proposes a constitutional constraint to limit criminalization of victimless crimes, and particularly to alleviate the pressures on the criminal justice system emanating from its continuous “war on drugs."  To accomplish this goal, the article explores the concept of human dignity, a fundamental right yet to be invoked in the context of substantive criminal law.  The U.S. Supreme Court’s jurisprudence invokes conflicting accounts of human dignity: liberty as dignity, on the one hand, and communitarian virtue as dignity on the other.  However, the Court has not yet developed a workable mechanism to reconcile these competing concepts in cases where they directly clash.  The article proposes guidelines for balancing these contrasting interests and then applies them to drug crimes, illustrating that adopting such guidelines would result in constraining the scope of substantive criminal law.

August 30, 2012 at 09:00 AM | Permalink

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Comments

The idea of invoking "human dignity," no less, to support weakening society's constraints on prostitution, pornography, sadomasochism and drugs is just mind-boggling. It could come only from someone who has no experience with what the degradation of human beings actually means, and what addiction does to destroy dignity first, then lives.

Astounding. Just astounding.

Posted by: Bill Otis | Aug 30, 2012 9:19:00 AM

I'd also note that prostitution, pornography, and drugs all have plenty of victims that are part of those practices as they currently exist, including in places like Holland where they are largely legal or decriminalized and regulated.

Marijuana may be the big exception in terms of comparing it to countries who have legalized and regulated it.

Posted by: John | Aug 30, 2012 3:28:20 PM

Dignity is subsumed in the Ninth Amendment. But that Amendment is dead in the water for now, until violent citizens just beat the asses of appellate judges. To deter these little dictators and insurrectionists against the constitution.

Fifth Amendment Dur process also requries that laws prevent a harm, be proven safe effective, and to have tolerable unintended consequence.

Lastly, the author says, "...and second, there is no coherent theory of criminalization that sets clear boundaries between criminal and non-criminal behaviors." Heck yes, there is a theory that totally explains the simultaneous current state of failure to protect the public fromvicious predators, the good pals of the lawyers, and the victimization of the public by over-crmininalization, to plunder the assets of productive males by feminist lawyers and their male running dogs. It is called the rent seeking theory. It is a synonym for armed robbery, and is a form of bad faith.

One explanation for the persistence of this form of corruption is the the mechanism for enactment involves diffuse costs, and concentrated benefits, a concept borrowed from political science. The public is asked to spend a dollar a month. The unions, lawyers, judge make billions. So there is no incentive for the public to resist. Only the victims and their families exist as a potential barrier between the lawyer and it plunder. And violence is the sole effective method for taking away this "candy from a baby."

Posted by: Supremacy Claus | Aug 30, 2012 5:30:53 PM

You want to talk about injustice,
Let me tell you about the justice system and laws that DISCRIMINATE AGAINST EX- FELONS WHO HAVE DONE THEIR TIME GIVEN, TRY TO GET HOME AND RESTART A NEW DECENT LIFE-----

AND SOCIETY MARKS THEM ETERNALLY CRIMINALS AND THEY CAN NOT GET HIRED ON DECENT JOBS TO TAKE CARE OF THEMSELVES AND THEIR FAMILIES

WHERE IS THE DISCRIMINATION LAW TO PROTECT THEIR GOD GIVEN RIGHTS TO BE FORGIVEN AND START OVER AGAIN??????

Posted by: patroit lady | Sep 1, 2012 11:23:31 AM

Patriot Lady: Thank the filthy, vile, feminist lawyer and its male running dogs, going after the productive male with hammer and tongs from the Inquisition. Next time, you see a filthy, vile, feminist lawyer or its male running dog, spit in its face. It is not even human, and needs to be destroyed like the rabid, rent seeking, internal traitor predator it is.

Posted by: Supremacy Claus | Sep 1, 2012 10:58:26 PM

It's called the dignity of choice and the ownership of one's own body.

True freedom includes the freedom to make poor choices, choices with negative consequences, choices that the majority doesn't approve of and even what some might call stupid choices.

By all means, if any prostitute or porn star is being coerced, then criminalize the coercion. But don't criminalize those humans who freely choose, even those who choose out of desperation.

Is some outmoded notion of chastity more important than being able to earn a living, eat, have a roof over one's head (a roof without concrete and bars, of course)?

Posted by: Liberty First | Sep 3, 2012 4:17:23 AM

Liberty First --

"Is some outmoded notion of chastity more important than being able to earn a living, eat, have a roof over one's head (a roof without concrete and bars, of course)?"

Somehow, 99.9% of the people manage to earn a living, eat, and have a roof over their heads without becoming part of the prostitution or porn industries. I just have to think that the other one-tenth of one percent could too, if they just wanted to get a normal job.

You don't want just a free society. You want a degraded society. No thanks.

Posted by: Bill Otis | Sep 3, 2012 11:39:13 AM

Bill Otis - Leaving aside what I might really want if I could magically change the world and even leaving aside the fact that I don't understand why 2 or more people engaging in sex or watching porn or even using drugs behind closed doors degrades society (especially, how those activities might degrade society to any further degree than it is already degraded with drugs, prostitution and some forms of pornography presently illegal but not eradicated) - leaving all that aside, here's a question for you:

Do you believe that the consumers of pornography and prostitution contribute to the degradation of society to the same degree that the providers of these services contribute to said degradation?

And if so, do you believe there should be criminal sanctions for the consumers? Because right now, it is overwhelmingly the providers and purveyors of sexual "vice" who are criminalized. The consumers get a pass, for the most part. Are they not contributing to the degradation? And if so, why aren't "we" doing more about that?

We could increase the prison population exponentially if we prosecuted all the viewers of dirty movies, all the strip club patrons, all the internet porn surfers and all the johns! (Interestingly, "johns" are the one group who is already criminalized but rarely prosecuted).

We do have legal adult entertainment - most of that market IS legal. Should that change? Should we become more like, I don't know, Saudi Arabia in that respect?

BTW, it is probably more like 2% of the population who work or have worked in pornography and prostitution combined. Still a small segment, but much larger than what you estimated up there in your comment.

Posted by: Liberty First | Sep 4, 2012 12:47:16 AM

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