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September 11, 2013

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

31-cEIG37XL._SL500_AA300_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:

September 11, 2013 at 12:09 PM | Permalink


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I think most people have it in their mind, lock'em up and toss away the key...Especailly if manufacturing meth and/or selling hard drugs of most any kind..

But after they see the federal sentences in the paper and no parole side bar note...They realize thats just aboutwhat happens to drug offenders..

I would say the kids in your class already do have a fixed idea on whos the victim on drug crimes...Have at it Doug, we will be needing more lawyers down the road...

Posted by: MidWest Guy | Sep 11, 2013 2:31:08 PM

Many times when your car is broken into or garage/storage shed ransacked it was committed by a drug user. Lots of "petty" crimes create a lot of inconvenience and nickel/dime losses that add up for those of us who are law-abiding. You might want to look at a study entitled "The Criminality of Heroin Addicts --When Addicted and When Off Opiates."
Available at: https://www.ncjrs.gov/App/publications/abstract.aspx?ID=79110

The bottom line is not only do you have to go after the suppliers, you have got to treat the users' addiction to lower the crime rate.

Posted by: ? | Sep 11, 2013 3:36:04 PM

I live in a small town.. Had just the very thing that ? has eluded to...

Houses getting burgled and small items stolen...
Not huge in itself and as alone crime, but dozens of them...Turned out to be a young kid with a serious drug addiction..

His life is going to change big time now...Hope he gets a good deal, more important, to stop theepisodes or it will just continue...

Posted by: MidWest Guy | Sep 11, 2013 3:56:07 PM

Every person that chooses to use marijuana casts a vote for legalization. The increase in marijuana use reported recently is not so much a "problem that has to be fixed" as it is the voice of millions of American voters telling the government that they want marijuana put on the same legal footing as alcoholic beverages.

Alcohol causes liver disease, heart disease, brain damage, violence, cancer, and kills 80,000 people/year in the U.S. Marijuana, on the other hand, does none of these things. We could prevent a lot of the harm that alcohol causes by giving people the right to choose marijuana instead of alcohol. People should NOT be arrested for wanting to make a safer choice!

Posted by: Jillian Galloway | Sep 11, 2013 6:02:27 PM

Once again, the lawyer is in the Twilight Zone. As a harsh endpoint, 50 people die from marijuana a year, from drugged driving. From alcohol, it is 100,000. From tobacco, it is 400,000. The public rejected their prohibition. Half the murderers, the murder victims, and the suicides are legally drunk. Almost none has THC in the body at the time of death.

You just cannot prohibit marijuana, and allow the legal sale and advertising of alcohol and tobacco.

That is unless the prohibition of marijuana is entirely pretextual, and a false excuse to have giant government make work jobs for the lawyer, his Democrat Party government worker parasites.

In the absence of a frank review of the rent seeking theory, the professor is just another cult criminal running his cult enterprise con on the students. Start telling them the truth instead of this idiotic lawyer propaganda, which will fool only kids in kindergarten, like a belief in my good cousin, Santa.

Posted by: Supremacy Claus | Sep 11, 2013 9:59:32 PM

The Hoseman case sets up a false pretense: that drugs are to blame for the damages caused to the owner of that house. The renter caused damage to the house and was liable for that damage, just like any renter who destroys his landlord's property. If the renter was instead an artist who destroyed the inside of the house to create art installations, we would not be asking if art can be said to be "victimless", at least not seriously. The tenant would still be liable for the destruction he caused. Anyway, as with most discussions about the dangers of drugs, in this case the harm that resulted from the drug production was not only a choice by an individual, but also a consequence of drugs being illegal in the first place. Were the drug seller permitted to grow marijuana in the open without fear of arrest and prosecution, he probably would not have chosen to damage his landlord's house by growing it inside, in secret. If we're going to assign blame for consequential harms, then the enforcers of prohibition share the blame for the harms of drug trafficking with the drug traffickers.

Posted by: C.E. | Sep 11, 2013 10:18:46 PM

In addition, what about determining the nexus between "victimless" drug use and the violent actions that occur from the distributor heads of those drugs to innocent women, children, and other non-involved people?

Posted by: Eric Knight | Sep 12, 2013 11:33:49 AM

"Once again, the lawyer is in the Twilight Zone."

If Jillian Galloway is a lawyer, c'est la vrai verite.

| FortLee.patch.com, "Regular marijuana use in adolescence may permanently impair brain function and cognition and .. psychiatric disorders such as schizophrenia, according to a study from the University of Maryland School of Medicine" |

True of alcohol?

Posted by: Adamakis | Sep 12, 2013 12:41:32 PM

The reason to steal to buy drugs is their federal price support by their prohibition. So the lawyer causes high prices then points to robbery victims as drug victims, ehen they are victims of the lawyer professio.

Posted by: Suptemacy Claus | Sep 12, 2013 2:49:49 PM

How many people have to steal or destroy apartments to get alcohol or tobacco?

Posted by: Suptemacy Claus | Sep 12, 2013 2:54:12 PM

Take the worst student in the Class, does this case give anyone any trouble, except for trained lawyers? It has been dispatched here by civilians in minutes. They have been made into dumbasses by legal training.

Posted by: Suptemacy Claus | Sep 12, 2013 3:00:16 PM


The excessive use of any o b ject on earth causes problems, including the Comment section of this blog.

Posted by: Suptemacy Claus | Sep 12, 2013 3:03:07 PM

Since the antibiotic era ended tertiary syphillis as the numbrr one cause of preventable mental illness caused by brain damage, alcohol induced mental illness has taken that spot. And by far, far compared to marijuana.

Posted by: Suptemacy Claus | Sep 12, 2013 8:45:51 PM

Thanks for the comments all. C.E. makes many of the points I try to draw out in class discussion in response to the "With all these victims, how can anyone say that drug crimes are “victimless” with a straight face?" line of thought. I should probably have been clearer in my initial post that I wasn't presenting my own view on the issue with that take, just the points I try to present in class to fuel discussion and thought on the case and issue. Also, the post just scratches the surface of these very complex issues, needless to say. I think Husak's piece that I excerpt (like many others of his excellent writings in this area) provides one of the best/most thoughtful takes on the issue (regardless of whether one ultimately agrees or disagrees with his view.)

Posted by: Alex Kreit | Sep 12, 2013 11:55:30 PM

Prof. Kreit: Your case is a joke example of a drug victim.

Here are some serious ones.

Thousands of black males murdered in drug territory competition.

The government of our friends in Mexico. Their murder victims.

The children of addicts and dealers who have lost a parent due to the artificially high prices, maintained as a price subsidy by the federal government's prohibition.

Property owners of the inner city, made unlivable by the immunized lawyer client.

Posted by: Supremacy Claus | Sep 13, 2013 12:41:41 AM

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