Drug User or Drug Pusher? The Culpability Gap
Does the law fairly punish drug possession vs drug distribution?
Jane is a heroin addict on the streets of Las Vegas who panhandles so that she can afford her $20,000 a year addiction and avoid terrifying withdrawal symptoms. Mike doesn't use heroin, but makes all his money buying and selling it behind a convenience store off of the Strip. The difference? In the eyes of both the law and society, Mike is the more "culpable". If both are arrested and convicted, Mike will receive a slightly harsher sentence. But is that difference enough to reflect the feelings of society toward each crime? As the movement to legalize possession of certain types of drugs gains more and more legitimacy, it seems that the answer is, increasingly, "no". Punishments for simple possession of all types of drugs should be reduced in order to more properly place the burden on the root of the problem: those who sell and traffic drugs.
The concept of "culpability" is central to how we choose to define crime and how we seek to punish for it. First-year law students are taught that one of the main purposes of punishment in the criminal justice system is "retribution": society needs revenge for the harm the defendant has done. The amount of retribution necessary to satisfy the interests of society rests on the level of culpability, or blameworthiness, of a defendant. The laws in most states recognize a gap between the culpability of someone who commits first-degree, premeditated murder and someone who, by extreme negligence, causes the death of another (commonly known as "manslaughter". The laws almost everywhere also recognize a culpability gap between those who sell drugs and those who possess them. The changing attitudes in society, however, now call for the gap in punishments between the two crimes to be expanded.
General attitudes toward addiction in the United States are evolving to reflect the notion that it is a problem to be treated, rather than punished. Television shows showing the difficulties addicts face in fighting physical and mental dependency raise awareness of chemical dependency as a medical condition. Movements to legalize small amounts of recreational marijuana possession in Colorado and Washington State reflect a growing sense of personal responsibility for one's own consumption. Addiction is being viewed more and more as a medical condition in the United States, Many addicts first used drugs when they were very young, under the supervision of parents and guardians and, whatever choice may have existed at that time, the compulsion to continuously consume drugs becomes nearly impossible to overcome as serious mental and physical addiction develops.
The problem begins, many say, with those who traffic and deal drugs in the communities where future addicts are first exposed. Dealers and traffickers have no reason to look out for the health or safety of their customers: addiction means demand and demand means profit. While many drug dealers and traffickers have substance addiction problems themselves, they exhibit a level of "culpability" above the average user because their actions can affect so many people. The United States is the largest consumer of illegal drugs of all types in the world, thanks mostly to the work of enterprising traffickers and dealers. The United States is also the largest consumer of prescription medications. Dealers and traffickers are responsible for thousands of thefts and instances of prescription fraud every year in the United States, circumventing the protections put in place by regulators and getting pills onto the streets and making it easier for people to develop dependencies. Particularly with prescription drugs, dealers are making more and more money off of people who would never have thought of smoking a crack pipe or touching a heroin needle. It's the cultivation of a world where an American is more likely to be exposed to that first "hit" of what later becomes an addiction that makes dealers more criminally culpable than addicts in the eyes of American society.
The differences in the way the two groups are treated, however, is minimal. In Nevada, possession of cocaine is a felony, punishable by a minimum of one year and a maximum of four years in prison, and a fine of up to $5,000. The punishment for sale of cocaine is more harsh, but not by much. It is also a felony and is punishable by between one and six years in prison and a fine of up to $20,000.
While the role of juries and the charging discretion of prosecutors (sometimes) serves as a proper gauge of public sentiment, the punishments that we write into statute are a much stronger statement of our values as a State. Where anyone arrested of possessing a single gram of cocaine is subject to a minimum of one year in prison, as is anyone arrested for selling several ounces of heroin, we have failed as a community to make a strong enough distinction between the culpability of the suppliers versus the culpability of the addicted. It is the goal of all criminal lawyers to see that the criminal justice system is guided in the right direction, regardless of the state of the law.