Most criminal laws are designed to prevent harm to persons or to punish persons who harm others. The behavior in a victimless crime is considered harmful to society in general and no “victim” is required. Examples of victimless crimes include laws punishing homosexuality, prostitution, consumption or possession of alcohol, adultery, gambling, sodomy, and consensual sexual acts between unmarried people (fornication). Victimless crime laws reflect the norms of a community, state, or nation, but since norms change the laws defining victimless crimes change. For example, same-sex marriage was prohibited in most states until the twenty-first century. A debate concerning victimless crimes in contemporary society is the “war on drugs.” In the United States, use or possession of illegal drugs is considered a criminal offense under most federal and state laws. During the latter part of the twentieth century, strong moral opposition to illegal drug use resulted in long mandatory minimum sentences for even minor drug possession or sales. These laws doubled the prison population and destroyed the lives of a great number of drug-addicted persons who found that a drug conviction made it nearly impossible to obtain employment or housing. Unfortunately, there was a foundation of racism underlying drug laws resulting in the war on drugs being waged primarily against a perceived crack epidemic in poor, predominantly blackurban areas.31 The result was mass incarceration as a quarter of American prisoners were in prison for drug offenses. While African–Americans are 12% of the country’s drug users, they are 59% of the people in state prisons on drug offenses.32 A revolution is occurring in the public’s perception of the problem of drug abuse that is causing significant changes in the criminal justice system. Public opinion and criminal justice policy are abandoning the belief that drug use is a criminal matter and are adopting the belief that addiction is a health problem. Why is this revolution occurring? One explanation is that the new heroin and opiate addiction epidemic is concentrated among young whites of all economic strata. Heroin use among whites has skyrocketed; nearly 90% of those who tried heroin for the first time in the last decade were white.33 Also, the heroin epidemic is deadly. According to the Centers for Disease Control and Prevention, there are about 47,000 deaths per year due to drug overdose. Drug overdoses cause more deaths than car crashes. As this epidemic spreads, instead of a demand for incarceration there is a public outcry for treatment centers, expanding or developing alternatives to incarceration, calls for decriminalizing possession of small amounts of drugs—especially marijuana, for more widespread availability of Naloxone (used to treat drug overdoses), “good Samaritan” laws to provide immunity for persons reporting drug overdoses to 911and for the criminal justice system to stop punishing drug users. This new attitude pushes for labels like “junkie” or “addict” to be replaced with “substance use disorder.”34 As a result, significant changes are occurring in the criminal justice system. A small number of police departments have changed their approach to responding to the drug epidemic. These agencies treat drug addiction as a disease, not a crime, and have unilaterally adopted diversion strategies. Rather than arresting drug users, these departments place them into treatment centers.35
The drug epidemic was a political “hot button” issue in the 2016 presidential race, as at town halls candidates were questioned about their support for a compassionate view of those who are drug addicted. Presidential candidates told the public of the battle they faced with drug-addicted family members. President Obama called for reform of what he called draconian drug sentencing laws. New bills expanding drug treatment services, such as the Comprehensive Addiction and Recovery Act, have been introduced in Congress. One summary of the new attitude toward drug addiction is the Facebook posting of Leonard Campanello, the police chief of Gloucester, Massachusetts, “The war on drugs was lost and over . . . addiction is a disease, not a crime or moral failing.”36
The changing attitudes toward drug addiction raise several interesting questions. Among them are the following:
1. Were sentencing laws in the “war on drug” racist and is the new “compassionate” approach due to the large number of whites involved in drug abuse?
2. If drug sentencing laws are significantly changed, should these changes be made retroactive and persons previously convicted under harsh drug sentencing laws have their sentences changed?
3. If certain drugs such as marijuana are made legal, should persons who were convicted of marijuana possession have their records sealed or expunged?
4. Does drug use harm society and is it a source of criminal activity that should be punished or is it a medical problem that should be treated?