"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.