When I teach criminal law, I try to use at least one class to address the question of what acts we call crimes – and why. Many students have not previously questioned whether our current menu of crimes is natural or is, in substantial part, a cultural artifact. Setting aside crimes that are malum in se – offenses like murder, larceny, and arson that many (though not all) cultures understand to be immoral – most American criminal codes are larded with offenses that aren’t universally understood to be wrong. And the American prison system is filled with people who commited these malum prohibitum crimes: according to a 2007 Department of Justice report on prisoners in the U.S., 53% of all Federal inmates and 20% of all state prisoners are there for drug offenses.
It hasn’t always been this way, of course. For most of this nation’s history, heroin, marijuana and cocaine use was legal. And this all leads me to ask students whether we ought to, or will, ban cigarettes. The trends certainly point that way. A half century ago, smoking was widespread – and well tolerated in public places. Today, smoking bans are ubiquitous. Children are taught to hate smoking (as any parent has experienced when his young child walks past a smoker and exclaims “yuck, that’s disgusting!”) I’ve wondered whether we’ll soon treat parental smoking as child abuse. It seems entirely logical, as a next step, to ban the product.
Yet if my students are any indicator, we’re not ready for this next step. And I wonder why. Is it because we have a commitment to personal freedom – albeit one that does not include cocaine, heroin, marijuana, and the like? Is it because we anticipate low compliance rates for such a ban – chastened, in part, by the failure of prohibition? Is it because we think that domestic tobacco companies will block efforts to impose this sort of drug ban? Or is it that we want our tobacco companies to continue to make money selling cigarettes in developing nations – and we’d face an international outcry if we tolerated the promotion and export of a product so dangerous, we don’t allow it here in the U.S.
I’m not sure where we’ll be in twenty years. Perhaps there will be a resurgence of smoking that provides political support for Philip Morris et al. Perhaps the political forces that have successfully pushed for heavy smoking regulation will stall. Perhaps we’ll tax cigarettes into a leisure product only available to rich folks – and thieves. Or perhaps we’ll have a new unit to cover in our Criminal Regulation of Vice courses.
Maybe it's a tired question, but the same can be asked the other direction as well — as acceptance of marijuana grows, how long before it's fully legalized? And then what drugs follow after that?