High Crimes and Michael Phelps

Last week, a Wall Street Journal op-ed screamed “Arrest Michael Phelps!” and a sheriff in South Carolina threatened to prosecute the famed Olympic swimmer. Commentators across news and radio stations added their voices to the hysteria. The reason behind the calls for Mr. Phelps’s head? A photo that surfaced in a UK tabloid showing Mr. Phelps smoking marijuana at a casual party. While there is no question he broke the law, the question we should be asking is: did Michael Phelps commit a crime?

Not if we still live in America. When the Founders conceived the United States, they envisioned a country in which each individual would be left free to exercise his own judgment about how to live his life. They created a system in which the rule of law would prevail over the rule of men. In limiting the function of government to the protection of individual rights through an objective body of law, they ensured that citizens’ private lives would be protected both from government meddling and abuses by other citizens.

In the Founders' view, an individual commits a crime when he uses physical force or fraud to interfere with other peoples’ right to live their lives as they judge best. This was the original philosophic basis of American criminal law, and the reason why acts like robbery, drunk driving, and murder are all properly prosecuted as crimes. A crime is a rights abuse by a perpetrator against a victim. Conversely, if an action does not violate anyone’s rights, it cannot be a crime; it is deemed beyond the government’s ability to judge or regulate.

So, if a crime is properly a rights violation, whose rights has Mr. Phelps violated through his recreational marijuana use? What crime has he committed?

Prosecuting Mr. Phelps—or anyone—for marijuana use is a rejection of the American conception of law and government. It is a rejection of the idea that individuals have a right to engage in whatever sort of activity they think best for themselves, however ill advised someone else might judge that activity. If this behavior endangers other peoples’ lives—such as in cases of drunk driving, for instance—there are objective laws under which the individual should be prosecuted. But in cases of recreational use or mere possession of marijuana, that’s clearly not the case. No one’s rights have been violated, and no real crime has been committed.

The Journal and other commentators agitating against Phelps endorse, by implication, a different view: the idea of a paternalistic government telling its citizens how they must live their lives. If it is proper for a prosecutor to punish Michael Phelps for smoking marijuana at a party, then it is equally proper for that prosecutor to tell Michael Phelps what time he should go to bed, what he should eat, and whom he should befriend. The objection that one activity is illegal while the other is not ignores the real question: is the law just? Should the prosecutor use his power to punish this man—or should he instead go look elsewhere for a real criminal, like a murderer or rapist?

Rather than prosecute Mr. Phelps for the victimless “crime” of an activity in which he has a moral right to engage, we should revisit the laws regulating marijuana consumption—and ash them out.