Why Victimless Crimes are Wrong

Tibor R. Machan

When the courts refused to let Angel Raich—the California mother of two, suffering from scoliosis, a brain tumor, chronic nausea, and some other maladies—take a doctor prescribed dosage of marijuana, I was outraged. I wrote this in a column which I submitted to, among other places, a web page, AmericanThinker.com. I received a rebuke from the editor for not producing an analysis of victimless crimes instead.

Well, a 700 word column just doesn’t suffice to provide a comprehensive analysis of what is wrong with victimless crimes but some words on it may be worth producing if only as a kind of mind-teaser that may prompt some further inquiry on the part of readers. But in response to what was done to Angel Raich, words of outrage were the order of the day!

A crime in a free country amounts to the violation of one’s basic and derivative rights. So that murder is a crime since murderers violate the right to life; and so is vehicular manslaughter, because such conduct, too, violates the right to life but in a less direct, straightforward fashion. The American founders had it right when they stated, in the Declaration of Independence, that “to secure [our] rights, governments are instituted among [us], deriving their just powers from the consent of the governed.” Consent to such a government is granted, either explicitly or implicitly, by being part of a community that recognizes our unalienable rights to life, liberty, and the pursuit of happiness and where these rights are given legal protection.

In contrast, when someone advocates a disagreeable idea, no one’s rights are being violated; when someone engages in self-destructive conduct, once again the culprit isn’t violating any rights; when someone sells dope to a willing adult buyer, once again no rights are being violated. Consensual interaction can not be rights violating.

But what, you might ask, about vulnerable folks, with weak wills? Here is where the complications arise, which is why the matter isn’t amenable to being treated briefly. If ordinary citizens, human beings, do have free will, as morality and the criminal law assume, they are able, even if with some difficulty, to resist temptations and inducements from others to do what can hurt them. If they refuse to resist, if they decide to take up a bad habit—smoking dope, gambling excessively, hiring hookers—and even get addicted, this is their responsibility to handle. Others may be morally blameworthy for attempting to induce them, tempting them, promoting the bad behavior, but no one has violated their rights in doing this. I can influence others, perhaps, with fancy words, with charisma, and the like but none of this forcibly imposes anything on them, none of it amounts to violating their rights. Even if they are unusually vulnerable, they have the freedom to take measures to protect themselves from my bad influence—they can avoid me, form a support group to keep away from tempting literature I might send their way, and so forth.

Basically, rights violations are unavoidable physical intrusions on (or threats against) other people, so they are criminal—the victim has no choice but become a victim. But tempting people, influencing them, inducing them and such can all be resisted without much trouble except to summon some will power, some diligence, some resolve.

Of course, and here is the rub, the very idea that people have such freedom of will is in much dispute in our time and to make our the case that they do, if they do, is an elaborate task. Just recently The New York Times Magazine ran a long essay by law professor Jeffrey Rosen—“The Trials of Neurolaw”—in which readers learned that a widespread debate is afoot on whether the assumption of free will can be sustained and should be retained in the legal system (and, by implication, in ethics) in the light of current findings in neuroscience.

Nonetheless, within the framework of the American political and legal tradition, animated by the principles laid out in the Declaration of Independence, victimless crimes simply are no proper crimes at all. The people “committing” them may be vicious, evil, acting immorally, and so forth but their doing so does not suffice, in a free society, to make them criminals.

Of course, this is quite moot when it comes to Angel Raich’s case whose consumption of marijuana would amount to taking medicine, not being a drug abuser. So demanding that one defend the rejection of victimless crimes in order to stand up in Raich’s defense is entirely beside the point. Still, on the more general matter of why victimless crimes are bad laws, the essential issue is what such crimes do not violate anyone’s individual rights.