By Jon Gettman
When it comes to arresting people for possession of illegal drugs, prohibition is legally immoral.
That may seem like a strange term to some, but it’s what’s being referred to differences between the letter and the spirit of the law. The letter of the law concerns what is technically legal, or not. The spirit of the law refers to general principles that are at the foundation of our legal system.
The issue here is entrapment—not in terms of individual arrests, but in terms of prohibition in general. It may be technically legal, with respect to constitutional law, but prohibition contradicts the spirit of the law with respect to generally accepted constitutional principles.
What follows is not a legal argument, but a moral one.
First of all, the Supreme Court has ruled in the case of California v. Robinson (1962) that it is cruel and unusual punishment to make drug addiction a crime. This is why modern drug laws concern economic activity, the manufacture, sale or possession of contraband.
Here is a good example of how the letter of the law enables law enforcement to get past the spirit of the law. It is unconstitutional to criminalize drug use, so the law gets around it by criminalizing drug-related economic activity. In the case of a drug user, the result is the same, but technically redefining the crime as possession of a banned substance is constitutional, while otherwise criminalizing drug abuse is not.
The same argument applies to the issue of entrapment. A little history and constitutional law will help explain why.
Entrapment is a defense.
An influential ruling occurred in Michigan in the case of Saunders v. State (1878). A police officer gave an attorney an opportunity to commit a crime, the attorney did and the issue was framed. The court ruled that a jury ought to be able to decide if the government caused the defendant to commit the crime. The original issue became a matter of balancing zealous law enforcement activity and individual liberties.
Over time, every state adopted rules enabling entrapment to be used as a defense in criminal proceedings.
Some states use what is commonly referred to as a subjective approach, in which the issue is whether or not the defendant had a predisposition to commit the crime. Other states adopted an objective approach, in which the issue is whether or not the police activity was excessive, particularly when the police use inducements to cause the crime to occur.
The Supreme Court unanimously recognized the entrapment defense in the case of Sorrells v. United States (1932), a case from the era of alcohol prohibition involving the purchase and transfer of a half-gallon on whiskey.
Here are the facts of the case, as summarized in the Supreme Court decision:
The substance of the testimony at the trial as to entrapment was as follows: for the government, one Martin, a prohibition agent, testified that, having resided for a time in Haywood County, North Carolina, where he posed as a tourist, he visited defendant's home near Canton on Sunday, July 13, 1930, accompanied by three residents of the county who knew the defendant well.
He was introduced as a resident of Charlotte who was stopping for a time at Clyde. The witness ascertained that defendant was a veteran of the World War and a former member of the Thirtieth Division A.E.F. Witness informed defendant that he was also an ex-serviceman and a former member of the same Division, which was true. Witness asked defendant if he could get the witness some liquor, and defendant stated that he did not have any. Later, there was a second request, without result. One of those present, one Jones, was also an ex-serviceman and a former member of the Thirtieth
Division, and the conversation turned to the war experiences of the three. After this, witness asked defendant for a third time to get him some liquor, whereupon defendant left his home and, after a few minutes, came back with a half-gallon of liquor for which the witness paid defendant $5. Martin also testified that he was "the first and only person among those present at the time who said anything about securing some liquor," and that his purpose was to prosecute the defendant for procuring and selling it. The government rested its case on Martin's testimony.
The Supreme Court ruled that Sorrells had a valid defense in arguing that he should be acquitted because he has no intention of breaking the law, and that the violation occurred only because of the inducement (and harassment) of the federal prohibition agent. That’s the letter of the law aspect that has been derived from this case, and it still holds today.
But through its ruling in this case, the Supreme Court stressed another point—derived from a decision in an earlier case—articulating that in terms of the spirit of the law, prohibition is legally immoral.
In his majority opinion of the Sorrells case, Chief Justice Hughes cites a comment from an earlier appellate case (Butts v. United States) by Circuit Judge Sanborn:
The first duties of the officers of the law are to prevent, not to punish, crime. It is not their duty to incite to and create crime for the sole purpose of prosecuting and punishing it.
The history of marijuana prohibition, the racial disparities in enforcement of possession laws, the modern use of drug laws to pump up arrest statistics and intimidate suspected criminals and the continued political support of law enforcement for marijuana prohibition all support the evidence that today prohibition exists solely to create crime for the sole purpose of prosecuting and punishing it.
Prohibition is legally immoral because it does not exist to protect the public, to reduce drug use, to prevent illegal sales or any number of pretexts used to justify its existence.
Prohibition creates crime for the sole purpose of prosecution and punishment.
The public is realizing the fiscal cost of this this folly. The moral cost is just as important—and perhaps even more costly.
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