The original sin of our overactive, prejudiced, and at times unconstitutional justice system is making possession a crime. Private possession of any legally acquired goods or services should not be a crime. Correcting this flaw in our system would address a whole host of issues from drugs, to abortion, to gun control and bring them in line with constitutional and basic privacy rights. This article will explain why criminal possession is unconstitutional and redundant, how enforcement of possession has skewed the legal system, and what are the effects of eliminating it from the law books.
The statement, “Possession of any legally acquired goods or services in the private realm should not be a crime” has two qualifiers that should be explained. The first qualifier, “private possession”, does the yeoman’s work, it means you possess something outside of the public realm; the most typical example being your own home. In other words, anything in your home or anywhere else that could be defined as “private” is in your private possession. The second qualifier, “legally acquired”, means that if you purchased a good or service legally, then you are entitled to possess it. This seems obvious, but what about if you purchase something in Colorado that is illegal in Texas, under our current system that is not allowed because possession is a crime. Combining these two qualifiers implies that if you acquire a good or service legally and have it in your home, then you have the right to possess it regardless of any local laws saying such possession is illegal.
However, under our current system possession of legally acquired goods or services can be illegal and the State frequently uses its policing powers to search for “illegal” items in your private possession. This is clearly a not only a violation of privacy which is protected by the Due Process Clause in the Fourteenth Amendment, but also a violation of the Fourth Amendment which protects against unreasonable searches and seizures. Because the only way to know someone is in private possession of an “illegal’’ good is by invading said privacy to search for it. Therefore, you would have to violate the Fourth and Fourteenth Amendment to do so. Although the right to privacy is not explicitly listed in the Constitution, it can be inferred under the idea of “substantive due process jurisprudence” and the Supreme Court has ruled accordingly in several cases including cases that gave the right for interracial couples to marry, the right for unmarried individuals to use contraception, and most notable Roe v. Wade which established the right to abortion (Constitutional Center). Interestingly, the illegality of possession mirrors the State’s overreach into private matters that were struck down in the aforementioned cases.
If the illegality of possession results in flagrant abuses of privacy, why does every State use them? What is the public benefit? States reason that certain objects, most notably drugs and certain firearms, are too dangerous for private ownership and as a result deem their possession illegal. However, they also deem the distribution, selling, and purchasing also illegal. If the purchase of an object is illegal, it cannot be “legally acquired” and the actual crime is the purchase of an illegal good making possession a redundant law. So why does possession need to be illegal as well? The simple answer is it is much easier to catch some in possession of something and prove it in court than to prove that someone sold or purchased something. This is a flagrant abuse of power and individual rights. Making something illegal because it is easier to prove is a shortcut that States should not try to take, especially since it clearly violates citizen rights.
The crime of possession has encouraged the trend of mass incarceration, led to the robbing of the populace by the State via civil asset forfeiture, and resulted in many unintended deaths because of the State seeking to prove possession by invading people’s private residences. As mentioned above, proving possession is trivially easy and as a result police arrest over a million people for drug possession every year (Prison Policy). Furthermore, the ability to perform a “reasonable” search based on “suspicion” of possession of an illegal item has led to other crimes which is arguably a benefit of possession being a crime but is clearly a gross abuse of power and a trampling of constitutional rights.
The perversion of the possession crime has also resulted in even legal possession of money and property being “tainted” by illegal possession, giving the State the ability to seize property via a mechanism known as civil asset forfeiture. Any money or property potentially tied to a crime (note the use of the word potentially) can be seized and held onto, even if you are found not guilty of the alleged crime. This basically allows the State to charge you with a crime and keep your property, even if they don’t convict or even end up prosecuting said crime. This is theft. And it leads to perverse incentives such as pursuing crimes that allow you to reap some monetary reward rather than investigating crimes that protect the public. Why investigate a rape case if you can literally make money harassing “potheads” and seizing their possessions?
Despite these concerns, which have been raised at many levels, possession is still a crime. One reason given is because changing it would be an enormous negative disruption on the criminal justice system: criminals would go free, drug use would skyrocket, gangs would march in the streets. Is this true? Is possession being a crime the only thing protecting us from anarchy? No, it is simply an excuse for our civil servants to take the easy approach to law enforcement at best and line their pockets at worst. Eliminating the crime of possession would restore respect for individual rights, shift the focus toward distributors of “illegal goods” rather than users, and eliminate possession related illegal searches and seizures. The fact that more people are arrested each year for marijuana possession than violent crime illustrates the perversion of this choice (NY Times). The only price the criminal justice system would have to pay would be fewer arrests and convictions for petty crimes and minor misdemeanors which because of the overcrowding of our jails and prisons might be a good thing and the loss of rare lucky happenstances where they find out about more serious crimes while investigating possible possession crimes.
The legality of possession would open up interesting avenues of business and personal choice that are currently restricted. Furthermore, it would temper the ferocity of certain debates by respecting individual choices and State rights. The three most contentious areas the legality of possession would influence are gun ownership, abortion rights, and drug use. Currently, these areas are regulated by both Federal laws and regulations as well as sometimes conflicting State laws and regulations. The legality of possession would clarify the role of the State on individual choices and allow individuals to make private choices without fear of State retaliation.
Gun rights are enshrined in the Constitution via the Second Amendment. Yet, almost all States regulate which guns you can own and restrict where you can bring them. The real fear for gun owners and Second Amendment advocates comes from the belief that the State will deem certain guns too dangerous to own and from there it is a slippery slope to confiscation. However, if possession is not a crime, if you legally acquired a firearm, no matter the type, then you have the right to possess it on your private property. This means if I purchase an AR-15 from Arizona, I can legally possess it on my property in California (where it is illegal) without fear of confiscation or retribution. Furthermore, if I as a State wish to make the sale or purchase of certain firearms illegal, I am entitled to do so as long as I do not infringe on the rights of those who come to privately possess the firearms. Also, as a State, I can restrict the possession of all firearms on public property or certain private businesses via regulation. So, while a citizen can legally possess a firearm, even if they are not able to legally buy it in a given State, they can still be restricted from carrying it in the public realm.
Abortion access is a little different. Roe v. Wade enshrined abortion as a right but allowed the State to defend their right to protect potential life (ACLU). Later cases allowed for the States to further regulate abortion as long as they don’t put an undue burden on a woman seeking an previablity abortion (ACLU, VOX). A fetus is considered viable sometime around 24-28 weeks after the last menstrual cycle, though pro-life advocates argue for as early as 22 weeks (Fetal Age and 20 Week Abortion).
So what does possession have to do with abortion? In the definition I provided earlier, I specified that possession includes legally acquired good and services and abortion is one such service. If your State heavily restricts abortion and you travel to another State to legally acquire the service, your State might be able to prosecute you for conspiracy to commit murder (Slate). Furthermore, if you wish to use telemedicine to obtain abortion services, you might have to jump through all sorts of hoops like videoing from another State if it is even legal at all (NY TImes). These restrictions on a service that has been enshrined as a right by the Supreme Court are another example of criminal possession.
In the same vein as gun possession, if you come to “possess” or acquire abortion services legally than the State should not be able to punish you. The most obvious solution would be to simply allow a woman seeking abortion to seek a consultation with a licensed doctor in a State where abortion is legal and to acquire the necessary drugs that are effective up to 11 weeks in a pregnancy (Planned Parenthood). As mentioned above, there are already companies doing this, but they are running into numerous regulation barriers that should not exist if we allowed citizens to access legal services. In fact, medication abortion is so easy that many women are taking it illegally (without a prescription) when they cannot overcome the many barriers to acquire one legally (Slate). Creating a new class of criminal because the State has trampled the rights of her citizens is the classic symptom of criminal possession. As the State imposes more restrictions on abortions, at the bare minimum citizens should be able to legally acquire abortion services, especially abortion pills, from any State and use them in their private residences without fear of prosecution from the State. The fact that this is currently illegal in many States is a travesty.
With Roe v. Wade possibly and maybe even likely being overturned in the near future, the right for a citizen to possess a legally acquired service like abortion from any State should be rectified immediately. The flip side of that is that a State’s right to protect its right for potential life and enact regulations on abortion should also be recognized. A State should allow her citizens to acquire an abortion service including being able to receive the abortion pill from another State without fear of retribution, but that does not mean that the State has to allow the same services in her own territory. As long as a citizen does not have an undue burden to acquire the service, which if they acquire the service through another State via telemedicine and the abortion pill through mail they shouldn’t, the State has a right to regulate services in its own territory. If Roe v. Wade falls, balancing the rights of the individual against the rights of the State will be even more important.
Drug possession perhaps the area most people associate with criminal possession is arguably the area that the most harm to civil liberties is done. However, simply eliminating criminal possession as a crime eradicates most of the abuses associated with drug enforcement. Marijuana possession would become virtually impossible to prosecute. If an individual possesses marijuana in a sealed container (no smell) on their person or property and you wanted to charge them with criminal possession you would have to prove they acquired it illegally. Under our legal system the burden of proof would be on the State to prove that any drug was acquired illegally and since in many States recreational marijuana is legal, that would be difficult to prove.
For harder drugs that are illegal everywhere the State could still charge with possession but possession of related paraphernalia would no longer be illegal. Meaning to charge someone with possession they had to actively find them on a person with a warrant. And as more drugs become legal like psilocybin and MDMA (NBC, PopSci) the ability to prove someone illegally acquired the goods would diminish. This would reorient current drug warriors away from individual users and toward producers and distributors who it would be much easier and more impactful to make a case against not just for possession but actual intent to distribute.
The other option would be for the State to heavily restrict where these items could be used, more or less restricting them to private property (as with cigarettes in some jurisdictions), and to search for these drugs on people outside of the designated areas. However, users could counter by using sealed and locked bags and containers to transport their goods and force law enforcement to seek warrants to search or seize these containers. Since a warrant requires probable cause, officers could not simply seize everything on vague suspicion, and as a result the individual would be able to more or less transport their legally acquired goods anywhere without fear of prosecution. However, public and private areas and buildings are free to restrict access to anyone who does not submit to a search of their persons and property (e.g. airport security). So the State could protect public assets like schools from drug use and possession and potentially regulate certain businesses to do the same. Nonetheless, respecting the ability for an individual to protect their right to possess legally acquired goods and the State’s ability to regulate public areas would reduce unnecessary criminality, uphold Constitution rights and authorities, and provide clarity in the Drug War.
Above I highlighted why people should be allowed to privately possess legally acquired goods, but how do citizens take legally acquired goods from a State where it is legal to another State that it is illegal while maintaining private possession throughout? I gave one example, the locked bag or box that stays in your private possession the whole time, but that can be a huge inconvenience for things like abortion pills. This is where the federal government, whose duties include regulating interstate commerce, comes in. They should one protect against searches and seizures of private property because of the possession of legally acquired goods from another State and allow for the transport and distribution of legal goods from one State to any other State regardless of destination legality. In other words, the federal government should allow businesses to ship legal goods and services directly to their customers, regardless if those goods and services are allowed in that receiving State. The federal government regulates the Post Office so it could do that through them, and it also pays for part of most highways and interstates so it could mandate the free passage of goods and services on any federal paid for or subsidized highway. The free passage of goods along with the ability to privately possess legally acquired goods and services is necessary to not only protect the right to possess things, but to legally acquire them as well.
Criminal possession infringes on individual rights, obfuscates where State and individual rights begin and end, and arbitrarily changes legality by simply changing state lines. Eliminating criminal possession of legally acquired goods and services would correct a lot of the injustices in the criminal justice system, reorient the priority of crimes to investigate, and allow for States to exercise their authority over their territory without infringing on individual rights. It is an abomination that States use criminal possession to unconstitutionally seize private property or harass citizens hoping to find a more serious crime. The millions of people in jail for criminal possession of goods that are legal in many States or the thousands of woman who worry that they may face criminal charges for accessing abortions in other States is an embarrassment to the country. Ensuring citizens can privately possess any legally acquired good or service and allowing the free passage of goods so that the citizens can legally transport these goods and services would not only help clarify politically charged topics like gun rights, abortion, and drug possession but would improve the criminal justice system as a whole.