The Crime You Dare Not Stop

I’ve always thought that “possession” was an odd type of crime. Legal possession is such a passive concept. It doesn’t seem right to even call it a behavior. I’m pretty sure you can be guilty of possessing contraband even when you are literally asleep in bed. That just doesn’t sound harmful enough to justify punishment.

And consider what happens if the police bust you for possession of marijuana: The police will confiscate your stash. At that point they are the ones who are in possession of marijuana, aren’t they? Why is it that it was illegal when you did it, but it’s legal when they do it?

Because the law says so, I guess, but why? Cops can’t legally break into someone’s house and steal their jewelry or force women into having sex with them, so why is possession different? What’s the principle here? Clearly, since cops are allowed to do it, possession of marijuana doesn’t actually cause whatever social harm the law is seeking to prevent. So why is possession still illegal?

I think the answer has to be that possession is a proxy for the behavior that causes actual harm. In the case of marijuana, that would be the harm caused by smoking marijuana. (As a libertarian, I don’t see any net social harm from smoking marijuana, but let’s ignore that for the sake of argument.)

The problem — for the drug warriors, anyway — is that it’s hard to catch people smoking marijuana because it only takes a few minutes and they can do it in hiding. So the legislatures have moved backwards on the causal chain to criminalize a precursor act that is easier to detect: People generally possess marijuana for a lot longer than they smoke it, and they often do so in relatively public places where police can observe them, question them, and search them. Thus criminalizing the possession of marijuana serves as an imperfect way to attack the problem of smoking marijuana, at the cost of criminalizing behavior that is not really harmful.

This explains why it’s not a crime for cops to possess marijuana after a bust: They aren’t going to smoke it later.

Other crimes of possession can also be justified by their relation to harmful acts: We criminalize felons possessing guns because we don’t want them murdering people, we criminalize young people possessing cans of spray paint because we don’t want them vandalizing buildings with graffiti, and we criminalize possessing open containers of booze in cars because we don’t want drivers to drink.

The exact conditions under which it’s okay to punish people for harmless behavior in the name of stopping a related harmful act is a moral and ethical question worthy of exploration, but for now I’d like to look at a more practical problem. Because the behavior that is illegal is distinct from the behavior that is harmful, scenarios can arise where the law doesn’t really make sense.

For example, it’s illegal to possess child pornography. Clearly, mere possession is harmless, as proven by the fact that police and prosecutors can possess child pornography in the process of sending people to jail for it. Possession of child porn is nevertheless illegal because we don’t want people to look at it.

Houston criminal defense lawyer Mark Bennett gives an example of how this can lead to a bizarre dilemma:

Suppose that a client comes to you with a problem: he has a computer hard drive full of child pornography, and he wants to know what to do with it. What do you tell him?

It’s illegal for him to continue possessing the images. So you can’t advise him to do nothing (and keep breaking the law).

The smart thing for him to do would be to destroy the hard drive (if I could, I would recommend swisscheesing it with a drill press).

But tampering with evidence is illegal under both Texas and federal law.

This is not just a hypothetical situation. At least one lawyer has been prosecuted for destroying child pornography on a client’s computer.

Lawyers wouldn’t be facing this kind of conundrum if it weren’t for the crime/harm separation that is inherent in possession laws. If possession of child pornography wasn’t a crime, then deleting it from the hard drive wouldn’t be destruction of evidence of a crime. It would arguably even be crime prevention, since deleting it prevents people from looking at it, just as flushing marijuana down the toilet prevents people from smoking it.

(I’ve never heard of someone being charged with destroying evidence of pot possession by smoking it, but people do get charged with tampering with evidence for eating drugs when the cops pull them over.)

On the other hand if the crime and harm of possessing child pornography were linked, if mere possession somehow did cause actual harm, then deleting the pornography from the drive would be stopping a crime in progress. The lawyer would be a crime fighter.

If you have trouble thinking about possession being harmful in that way, try imagining it this way: The lawyer visits the client’s house, but instead of learning that the client has child pornography, he discovers that the client has an actual child, locked in a cage in the basement. Alarmed, the lawyer frees the child, who immediately runs off. The child is confused, however, and is never able to identify his captor or the location he was held. By releasing the child, the lawyer has in a sense obstructed the ability of the police to charge his client for kidnapping, yet no sane person would argue that he shouldn’t have done it.

I’m not going so far as to say that possession should never be a crime, but the fact that possession crimes don’t work that way is a sign that possession is a strange kind of crime, one where stopping the crime is also a crime. I’m not sure how to fix this, but I’m pretty sure it’s broken.

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