Decriminalization Of Drugs Research Paper

2. Defining Drugs And Decriminalization

Despite common belief to the contrary, there is no uncontroversial definition of ‘drug’ or ‘legalization,’ but clarity about both is necessary to understand the legalization debate and to guide public policy.

2.1 Drugs

Virtually all definitions are vague or over-inclusive, permitting categorization as a drug of almost any substance that may be consumed. Some definitions are circularly dependent on legal regulations: if a law regulating ‘drugs’ includes a particular substance within its ambit, it is a drug; if it is not so included, it isn’t. Vague, over-inclusive, and circular definitions cannot sensibly guide public policy, especially when the state’s awesome power to blame and punish for illegitimate use is dependent on the definition.

Definitional problems concerning drugs and legitimacy cannot be entirely avoided by using allegedly scientific or value-neutral medical/therapeutic or nutritional concepts. Concepts like disease and therapy are themselves value-laden and inevitably problematic and controversial. Many substances that have un- questionably legitimate medical or nutritional uses can also be used for nonmedical or non-nutritional purposes that may be of questionable legitimacy. Finally, definitions that define a substance as a drug in terms of its intended use rather than in terms of its inherent properties obscure important questions of legitimate use.

Despite the conceptual problems attending the definition of a drug, a loose but common sense definition is possible for discussing decriminalization, which centrally concerns substances that are consumed recreationally, that is, primarily to produce pleasure, whether or not those substances have other legitimate uses. For the purpose of understanding the current debate, then, recreational drugs can be defined as consumable substances that (a) can affect mood, cognition, and behavior in pleasurable ways; (b) can be used primarily for recreation, including relaxation, excitement, and pleasurable states generally; and (c) can be used so as to endanger the user and others. Although admittedly loose, this definition covers both legal recreational substances such as ethanol (alcohol), nicotine, and caffeine, and substances that are illegal either per se or if they are not properly prescribed by physicians such as marijuana, cocaine, opiates, heroin, barbiturates, amphetamines, phencyclidine (PCP), and the like.

2.2 Legalization And Criminalization Of Drugs

Legalization (decriminalization) and criminalization are as difficult to define as drug because each includes widely varying legal responses to drug-related activities. The core of decriminalization proposals, however, is the limitation or abolition of present criminal prohibitions of actions related to recreational drug use by competent adults. Some prefer the term legalization to refer to the limitation of criminal prohibitions and penalties. Other, primarily rights-based theorists, believe that state criminal prohibition of recreational drug activities is not prima facie justified, so they prefer the apparently more politically neutral term decriminalization. For ease of exposition, the latter term will be used.

The specific details of particular decriminalization proposals depend on the proponent’s position on rights and on the costs and benefits of the proposal compared to the current regime of criminal prohibition. Proponents recognize that some criminal law regulation and substantial civil law regulation will probably be necessary to respond to recreational drugs, but all agree that substantially less use of criminal law is desirable and that it should not be the primary mode of regulation.

The core of criminalization proposals is that the criminal law should be the primary means of regulating recreational drugs, but the proper scope of criminalization is disputed and virtually all defenders of criminal prohibitions believe that noncriminal means such as education and treatment should also be used. Virtually no proponent of criminalization argues for expanding the scope of criminalization, say, by prohibiting the recreational use of currently legal substances such as alcoholic beverages or by substantially increasing the criminal penalties for drug offenses. The current debate is about limitation, not expansion, and whether criminal law should be the primary mode of regulation.

3. The Limits Of The Criminal Law: The Harm Principle

The state’s police power to apprehend, prosecute, convict, and punish citizens is one of the most awesome and probably the most afflictive power it exercises. Infliction of such pain requires substantial justification in liberal democracies that seek to protect individual rights and liberty. Afflictive and expensive criminal regulation should be avoided in favor of less intrusive means unless the harm is great, punishment would be deserved for causing it, and criminal prohibition seems necessary to reduce the level of harm and will not unduly impose on other important interests. Criminal law theorists term these limitations on the state’s power to criminalize the ‘harm principle.’ For example, intentionally inflicting emotional cruelty on others is morally despicable, but such behavior is not criminalized because the harm is insufficient to justify criminal punishment. Socialization by families, religious organizations, and schools is reasonably effective to limit such conduct, and regulating such behavior by criminal law might intrude on protected liberties, such as the right to free speech.

There is little debate about the state’s justification for prohibiting and punishing traditional crimes against the person, such as homicide and forcible rape, and against property, such as theft and arson that cause grievous harm. Although individual liberties are precious, no citizen has a right to kill, rape, steal, or burn the property of others for private advantage and the criminal sanction seems necessary to curb such behavior. Societies can disagree about the scope of appropriate criminalization. For example, there may be reasonable dispute on how much creation of homicidal risk should be necessary to warrant criminal penalties in addition to civil damages or how severely arson should be punished, but the state’s power to criminalize great harm to others is uncontroversial.

The harm principle suggests caution before criminalization, however, when the harm is primarily inflicted on oneself, when the harm is primarily moral and not physical, psychological or economic, or when using criminal law to prevent the harm appears to intrude on important rights or appears unnecessary effectively to reduce the harmful behavior. In liberal societies, the right of the state to criminally prohibit actions that harm primarily the actor (so-called legal paternalism) is more controversial than the right to prohibit harm to others because respect for individual liberty and autonomy generally entails that citizens have greater liberty to harm themselves than to harm others. Such liberty is most arguably extensive and the state’s right to regulate criminally is most questionable when the threatened harm to self is apparently solely moral and no other harm to self or to others can be discerned. Most liberal theorists reject the state’s power to use criminal law solely for the purpose of enhancing the moral perfection of its citizens—so-called legal moralism. Such goals are not the business of the state and should be achieved by other, less intrusive means.

In political and moral regimes that grant the state more authority to regulate individual liberty, both legal paternalism and moralism might be less controversial. For example, theocracies may coherently use the criminal law more extensively than liberal states to achieve paternalistic and moralistic goals. Even within liberal regimes, the permissible scope of paternalism and moralism may vary, although both require more substantial justification than criminalizing harm to others. Consideration of the state’s justifiable use of criminal law to regulate recreational drug use, however, must attend to the appropriate limits of state power within a particular political regime. The remainder of this research paper assumes that the regime considering decriminalization is liberal.

4. Recreational Drug Use And Rights

People often assume that there is no right, no liberty interest to use drugs recreationally and, consequently, that the state has appropriate authority to use criminal law to prevent such use. Such an assumption is seldom supported with cogent argument, however, and it is not easy to give compelling moral and political reasons for rejecting such a right.

Sensible discussion must begin with the recognition that people take drugs recreationally because they desire the pleasurable effects produced by consuming substances that alter mood and cognition. It seems clear, however, that the state has no justifiable interest in criminal prohibition simply because the primary or even sole goal of behavior is pleasure or because the behavior involves consumption of a substance that can alter mood or cognition. Many people might consider it wrong to engage in activities solely for pleasure, especially if alteration of mood and cognition were involved and there were some danger of dependence on the activity, but a liberal society does not interfere with a citizen’s right to make autonomous choices to engage in such activities. Citizens surely have a prima facie right to seek pleasure for its own sake and it is very difficult to imagine a secular, liberal argument suggesting that such a goal is immoral or harmful per se, even if some danger might sometimes be involved.

For example, suppose that a citizen engages in meditation solely for recreational purposes. No persuasive liberal moral or political theory would justify criminal prohibition of meditation, even if some citizens became dependent on meditating. Recreational drug use involves the consumption of a substance, but it is hard to imagine why the source of the recreation alone should make a difference. Currently, illegal drugs produce pleasure by altering mood and cognition, but so do many legal activities, including meditation, and legal drugs such as caffeine, alcohol, and nicotine. The state’s right to criminalize alterations of mood and cognition per se is questionable because such alterations are not per se immoral or harmful.

Citizens appear to have a prima facie right to engage in recreational alteration of mood and cognition by drug consumption and the state surely has the burden of justifying criminal prohibition of such recreation by powerful arguments. No right is absolute, however, and the possible right to pursue recreational drug use must yield to a powerful state interest in preventing such use, especially the undoubted state interest in curtailing the threat that drugs will cause substantial harm. Nonetheless, the harm limitation counsels caution before using the criminal law.

Some proponents of decriminalization refer to illegal drug use as a ‘crime without a victim’ because the person potentially most harmed—the user—in effect consents to the threat. But virtually no action affects only the agent, and recreational drug use sometimes threatens families and communities with economic, psychological, and physical harms. Many of these harms may be paradoxically produced or enhanced by criminal prohibition itself, but many surely are not. Moreover, harms one consents to suffer are nonetheless harms. The question is whether the harms to others or to self that drugs produce are sufficient to trump the individual’s prima facie right to use drugs and thus to warrant criminalization of drug use.

The next section on cost-benefit analysis considers the harms drugs produce, but it must be remembered that liberal societies often permit dangerous behavior in order to protect the right of citizens to pursue their own visions of how life should be lead. Such dangerous behavior is regulated noncriminally, if at all. For example, knowingly following unhealthy dietary habits can severely harm and even kill, and the harm or death can threaten economic, psychological, and physical harms to others. The enormous costs of unhealthy diets are well known, but it is unthinkable in a liberal society to use the criminal law to regulate individual eating habits. To promote the health of the populace, the state can properly regulate the manufacture and sale of food and can impose a duty on manufacturers to warn consumers of potential health risks associated with particular foods. It can even use the criminal law to police egregious failures to comply with such regulations, but it is unthinkable that it would criminally prohibit unsafe eating habits. For another example, consider the immense costs to many users and to society at large that flow from the consumption of alcohol and nicotine. Again, the state can appropriately regulate many aspects of such substance consumption to reduce the consequent harms, including the use of criminal law for egregiously harmful forms of misuse, such as drunk driving. For many reasons, however, importantly including the right to make one’s own choices unencumbered by undue state interference, criminal prohibition of the consumption of alcohol and nicotine by the state is considered unwarranted.

If drugs produce great harms per se and no one has a right to use drugs recreationally or if that right is insubstantial at best, then the only question for analysis is whether criminal regulation is justified by the benefits it achieves. But if there is a weighty liberty interest in making choices about how to live one’s life, including potentially unwise and dangerous choices about drugs, then the creation of harm is insufficient per se to warrant criminalization. Some dangerous behaviors must be permitted to protect liberty and regulated only by civil remedies, including damages when the harm occurs. Any adequate analysis of decriminalization must therefore include consideration of the strength of the liberty interest and it appears that in liberal societies the right is substantial. Empirical analysis of the consequences of various behaviors under various regulatory regimes is necessary to inform decisions about the appropriate scope of criminalization and decriminalization of drugs, but the question of rights cannot be avoided.

5. Cost-Benefit Analysis

The outcome of a cost-benefit analysis of decriminalization of drugs will inevitably be indeterminate because much of the data are unavailable, unreliable, or fluctuate and because the costs and benefits of a new regime must be speculative. Also, debate too often focuses on worst case scenarios that depend on salient but unrepresentative data. Insufficient information and biased misinformation often suggest the wisdom of maintaining the status quo rather than risk making matters worse by changing public policy. Policies such as the criminal prohibition of drugs that arguably fail and that impose great costs, including the infringement of citizens’ rights, should be and are debated and cost-benefit analysis plays a crucial role in these debates. Unfortunately, historical and cross-cultural comparisons are of extremely limited value because social variables, which vary radically intertemporally within a society and across different societies, immensely affect the consequences of drug use and regulation.

5.1 Harms Of Drugs And The Benefits Of Criminalization

Most currently illegal drugs would create some potential risks to the user and others, even if they were pure, inexpensive, and legal. For example, misuse of drugs can cause addiction and other extremely serious and well-known health, psychological, and economic effects. People can arguably become addicted to substances other than drugs and to activities such as gambling. Moreover, the concept of addiction is itself problematic. Nonetheless, assume that, for various cultural and biological reasons, most currently illegal drugs have greater addictive or other harmful potential than most other substances and activities.

Much decriminalization debate mistakes the probability and extent of the risks drugs pose. For example, most people who use most drugs recreationally do not become addicted and the moderate recreational use of drugs is not per se dangerous if the drug is pure and properly consumed. Nonetheless, the ease of access to drugs following decriminalization would surely increase the prevalence of use, abuse, and addiction and their further harmful consequences. The harms might be especially great in poorer and minority communities, where the prevalence of drug use is no higher than in other communities, but where the effects have been more devastating. Indeed, some responsible observers believe that decriminalization might effectively destroy poorer and minority communities already ravaged by drug abuse and addiction.

The relation between drugs and other criminal activity and health harms is fraught because it is difficult to disentangle the effects of criminalization itself from the independent effects of drug use. Some drugs, especially if used heavily, can substantially impair judgment, facilitate impulsivity, and have other effects that increase the risk of criminal offending and other dangerous behavior such as careless driving or sharing needles for intravenous injection. Increased drug use, especially heavy use, will raise the rates of such undesirable behavior.

Criminalization of drugs surely inhibits use generally by making production, sale, possession, and use more expensive and dangerous and by sending the clearest possible message that drug use is wrong. For example, there may have been both rights-based and consequential reasons to repeal Prohibition in the United States, but the data suggest that consumption and consumption-related diseases such as cirrhosis of the liver both decreased when most alcohol production and sale were illegal. Criminalization also helps prevent drug use by minors. Although minors regrettably have access to and consume drugs in a regime of criminalization, ease of access generally would also increase use and abuse among minors.

The use of criminal law to regulate drug use and related harms is obviously not fully successful by any standard and it is immensely expensive, but the proponents of continued criminalization argue that the current regime provides greater benefits than costs and that the unknown benefits, if any, of decriminalization would pale in comparison to the costs of inevitably increased use and abuse.

5.2 The Costs Of Criminalization

Criminal law enforcement, including imprisonment, is an especially intrusive and expensive form of regulation of any behavior. The cost-benefit critique of criminalization argues that such costs are not outweighed by the benefits because criminal law is powerless to make more than a small dent in the use of drugs and because criminalization itself creates many avoidable harms.

The attempt to eradicate drug use by criminal prohibition cannot fully succeed because large numbers of people want recreational drugs for the pleasure or relief they provide and it is widely recognized that the dangers of drugs are often exaggerated. The criminal law’s so-called ‘war on drugs’ in the United States is fighting a fluctuating but always immense number of citizens, most of whom are not addicts or abusers and whose use does not pose grave danger to society or themselves. It is hard to enforce laws that such large numbers of people wish to violate and that have no immediate and direct complaining victim. Furthermore, public hypocrisy about drugs inevitably undermines law enforcement. Western society is not nearly as monolithically antidrug as many claim, as public policy towards alcohol and nicotine indicates.

Given the powerful factors that motivate the desire for drugs, the criminal sanction appears ineffective. The criminal justice system cannot prosecute and imprison more than a tiny fraction of the enormous numbers of people involved in the illegal drug trade unless the justice system massively diverts resources from other, undisputed criminal law needs and abandons civil liberties protections. The criminal courts of the United States are already clogged with drug cases and the ever-expanding prison population includes an enormous proportion of drug offenders. Even spending vastly more money seemingly will provide only limited benefit. Despite billions spent on drug enforcement each year, undoubted law enforcement successes and the huge numbers of people in prison for drug-related offenses, drugs are still freely available and ever-purer and ever-cheaper. Fluctuations in drug usage appear far more related to major social, cultural, and economic forces than to criminal law enforcement. The limited decrease in use criminal law enforcement produces does not seem to justify the gargantuan costs.

Criminalization also threatens its own effectiveness and creates other problems. For example, criminal prohibitions raise the price on a good or service—the so-called ‘crime tariff’—and insure that there will be an endless supply of producers and dealers who seek to realize the monstrous profits to be made through any means necessary, including violence, and that many users will be impoverished and driven to a life of further crime simply to support themselves and to obtain drugs. The immense profits facilitate the growth and power of domestic and international organized crime and can be used to corrupt law enforcement, the criminal justice system in general, and both domestic and foreign politicians. Moreover, the consensual nature of drug offenses insures that law enforcement will unwittingly—and sometimes wittingly—use illegal means to enforce drug laws, thus further corrupting law enforcement and the administration of justice and causing disrespect for both. Criminalization decreases the probability that inevitable drug consumption will occur under conditions safest to health. Finally, primary emphasis on criminal law virtually insures that fewer resources will be devoted to investigating and implementing less intrusive and potentially more effective means to reduce the harms drugs cause.

5.3 The Benefits Of Decriminalization

Specific decriminalization proposals would produce different benefits, but the potential general benefits of decriminalization are the opposites of the costs of criminalization and can be stated easily in the abstract. They include an increase in personal liberty, probable cost savings, decrease in the crime, violence, and corruption that criminalization produces, increased respect for law enforcement, and increased attention to possibly more effective means such as education, treatment, and civil regulation to reduce use and the harms drugs cause. Criminal law would be used only to prohibit particularly dangerous drug-related activities such as drugged-driving or selling to minors. Such traditional use of the criminal law would receive broad public support.

6. Conclusion

Proponents of criminalization sometimes grudgingly concede the problems with the criminal law enforcement approach, but virtually always criticize decriminalization proposals for their abstract or theoretical nature. They fear that decriminalization will produce an administrative, medical, economic, and social tragedy far worse than the current situation, and they ask for highly specific details and guarantees that this will not happen. Proponents of decriminalization recognize that they cannot provide such guarantees, but properly request in return that proponents of criminalization provide the details of how their approach will finally succeed after nearly a century of ever greater expenditures but apparent failure. Neither position appears able to convince the other on theoretical or empirical grounds, but only in recent years has decriminalization been openly debated. Nonetheless, at least in the United States, it appears that the political support to experiment with decriminalization is still weak.

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