Two different criminal justice questions have to be considered when thinking about laws prohibiting possession of drugs. One of them is posed in Moore. That case asks whether someone who reasonably (though perhaps misleadingly) claims to be unable to control his addiction should be punished for drug possession. In generalizing on this, we can say that Moore is concerned with a disease theory of crime. A defendant claims to suffer from a syndrome (drug addiction in Moore, but the case opens the door to thinking about differential association or strain as syndromes that make it impossible for someone to conform to the law) and so argues that he can’t properly be subject to the condemnation characteristic of the criminal justice system. As a preliminary matter, then, examine the possibility that Judge Wilkey’s Moore opinion was designed to shut the door to the floodgates of a broad-based disease theory of crime.
But Moore introduces us to a second issue pertinent to drug possession—the possibility of decriminalizing them. In thinking about this, assume the following. (1) Those who possess a controlled substance (heroin, powder cocaine, crack cocaine, etc.) are more likely to commit violent crimes than those who don’t possess the substance. (2) But the possession/violent crime correlation doesn’t exceed 50%. (That is, more than half the people possessing the controlled substance don’t commit a violent act within a given period of time.) Do (1) and (2) justify criminalizing possession of the substance?
In considering this, think as well about gun possession laws. Assume that (1) and (2) are true as well for certain types of guns. What bearing does your answer for gun possession laws have on your answer concerning drug possession?