Victimless crimes like drug use or non-compliance with abstruse and anti-social government regulations clearly present difficulties whether we look at them from the point of view of the legislator or the judge.
The most obvious point is that there is no restitution that can be ordered for victimless crimes.
The legislator should be minimizing the combined cost of (crime + punishment + enforcement). But without a victim, the cost of an alleged crime is zero. Normally, both severity of punishment and gov’t spending are inversely correlated with the crime rate, but since both are expensive to society, there is an optimal amount of crime to be permitted. With the cost of victimless crimes to society being zero, unless one counts somehow the alleged “harm to oneself” from smoking pot, say, neither punishment nor enforcement are balanced by any measurable benefits. The anti-drug legislation creates pure social costs which are limited only by the ardor of the drug warriors. But fanaticism in trying to stamp out “sin” is not a proper basis for a civil government.
As for the judge, without a victim, there is no rehabilitation, consisting, again, in duplicating the victim’s sorrow in the assailant’s heart.
Nor is there retribution which also requires proportionality.
Judicial deterrence consists in trying to calculate whether an extra dose of punishment to the criminal being sentenced is or is not outweighed by fewer crimes, as the criminal’s buddies learn of their friend’s fate and adjust their behavior accordingly. So, suppose an extra year in prison to a given drug offender would indeed deter 2 people from using cocaine. But with no victims, there is no clear and obvious suffering to be balanced interpersonally. At the very least, then, deterring drug use is a some kind of political issue, such that complete and strict instructions for sentencing must be issued to judges from the legislative branch. The judge’s hands will be tied (and this in itself may be a violation of the separation of powers); he won’t be allowed to calculate. As a result, for victimless crimes, a judge cannot use the deterrence theory of punishment, either.
What remains is condemnation, and judges are indeed willy-nilly guided into using this most ignoble and last-resort theory. Drug users are considered to be animals, to be isolated from society as the worst kind of scum. That is the mentality actually cultivated by an anti-drug movement that started with a desire to improve human character.