Wrongful Constraint

In Simester and Andrea von Hirsch’s essay, “Harms, Wrongs, and Crimes,” they address the idea of wrongful constraint. A wrongful constraint is identified as only permissible to criminalize if it is morally wrongful conduct. The authors describe how a criminal law must be a justified one before it is appropriate to punish or else it violates the theory of wrongful constraint. In this essay, they lay down the definition and rights of the state when it comes to criminal law. Criminal law is defined as a coercive system to control the wrongful behavior of citizens; if the law does not prohibit morally wrong behavior, then it is not a permissible law. Wrongful conduct is described in three parts: harming someone (theft, robbery), creating risks of injury (drunk driving), or failing to oblige by public obligations (tax evasion) (p. 20). Wrongful conduct includes things that are harmful because they are wrongs, but some wrongs are independent of the harms they cause like blackmail, violation of oath, etc. (p. 21). The main point made in the essay is outlawing a drug or alcohol.

Prohibition is an example of how outlawing a drug created a black market for the extortion and racketeering of alcohol. Instead of banning alcohol in general, regulating the sales of alcohol through licensing and taxing is the preferred way of limited alcohol consumption. I believe this is something that is going on in America right now with the illegalization of marijuana. In the United States, the distribution and consumption of marijuana is illegal in most states, but the states have the right to decide to legalize the drug in their state for tax purposes. In these states, dispensaries and distributors must have a license to grow and sell marijuana products, but the state gains lots of tax money from legalizing marijuana in their state. If the United States legalized marijuana nationally, then the federal government could get tax money from the states. Legislators assume that criminalizing marijuana will reduce the spread of drug use, but in fact, they ignore the reality that banning marijuana drives the drug product underground, where it becomes more appealing, cheaper, and accessible to customers and harder for officials to supervise.