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

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

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

But does that fact have any moral relevance?

Drug prohibition offers a great platform for examining the theories of punishment. Though we may disagree about how much punishment a thief, 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, policy analysts, and (I’ve found) law students believe that the criminalization of some or all drugs is unjust and/or unworkable.  Of course, many others think that punishing drug manufacture, use and sale is a moral imperative. 

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

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

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

After several months, the home’s owner flew back to Wisconsin from Las Vegas (where he was living) with plans to start an eviction action.  Once the owner discovered Hoseman’s marijuana grow operation, however, he decided to call the police instead.  Hoseman was convicted of manufacturing marijuana and ordered to pay the home’s owner over $100,000 pursuant to Wisconsin’s victim restitution statute. 

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

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

The case poses a real challenge for students who believe that drug crimes are victimless.  Sure, Hoseman’s customers aren’t likely to call the police, but that doesn’t mean he isn’t causing harm to others.  In this case, there’s no doubt that Hoseman’s marijuana operation harmed the owner of the Victorian home.  In other cases, a drug 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, I try to lead them to a possible counter-argument: the home’s owner was a victim of “vandalism,” not a victim of “marijuana manufacture.”  It certainly would have been possible for Hoseman to grow marijuana without damaging the Burbeys’ home by, for example, growing a smaller number of plants or designing his operation with greater care.  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 he had grown the marijuana.   

This discussion of Hoseman nicely sets up the deeper examination of these issues that follows, relying on more theoretical materials including the obligatory excerpt of On Liberty, as well as excerpts from articles by Bernard Harcourt, Doug Husak, Steven Calabresi, and Dan Kahan.

I always find these class sessions to be some of the most enjoyable in the course.  But they can also be the toughest.  Many students will come to this debate with firmly held views that are often driven by personal experiences (from a bad encounter with the police to seeing a loved one struggle with addiction.)  For that reason, when I teach this material, my goal is always to try and gently challenge the students to better understand and critically reassess their own beliefs.

Prior post in series:

• Professor Kreit guest-blogging on "Controlled Substances: Crime, Regulation, and Policy"
• Controlled Substances # 1: Teaching Drug Possession
• Controlled Substances # 2: Identifying the Kingpin: Easier Said than Done
• Controlled Substances # 3: Measuring Culpability by Measuring Drugs?
• Controlled Substances # 4: Investigating "Victimless" Drug Crimes