Drug Use as a Crime or a Public Health Issue?

Much has been written about the opioid addiction crisis in Pennsylvania and around the country. It is a serious issue and must be addressed seriously . . . through health resources. In Montgomery County, where I live, one Magisterial District Judge, Andrea Duffy, implemented an excellent idea. She put together a collection of community groups working to fight the addiction crisis in Montgomery County and formed the Drug Addiction Resource Alliance. You can read more about it by clicking here.

If elected to the PA Superior Court, I would work to create a statewide version of what Judge Duffy has created in Montgomery County. However, as a judge who would hear appeals from criminal cases, I have a simple question:

In a system of limited government that values freedom, what power does the government claim in being able to criminalize private behavior that, if harmful to anyone, is harmful to the person doing the behavior?  In other words, is it constitutional for a government to label individuals involved in behavior we term "victimless crimes" as criminals? I can tell you that as a judge I would ask that question. Ethically, I cannot tell you how I might answer it as each case must be decided on the law and the facts of that particular case.

The question I ask goes beyond addiction. The US Supreme Court has already declared it unconstitutional to convict someone for being a drug addict. The question goes to individuals who might choose to avail themselves of an occasional marijuana joint instead of the legally protected drugs of alcohol or tobacco. It also goes to the question of autonomy. It is not illegal for a competent adult to voluntarily have sexual relations with another voluntary competent adult. Why then is it illegal for one of them to pay the other for that experience? Certainly an argument could be made that illegal drugs are sometimes mixed with dangerous substances or that someone having sex for a living might be transmitting a deadly illness. There are two answers to that which must be considered. First, the person purchasing the drugs or sex is certainly aware of the dangers and is choosing to do so anyway. Second, the government has a right to regulate such exchanges for the safety of the consuming public. Just because they choose to not regulate it for safety, does that give them the power to ban it?

All of these are questions that judges need to consider in any criminal case involving a victimless crime.