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Drugs and Rights

  Cambridge Studies in Philosophy and Public Policy

    Douglas N. Husak

  Contents

     Introduction

     1.  Drugs, drug use, and criminalization

        The war on drugs
        Medical and legal definitions of drugs
        Legal regulation of drugs
        Constitutional issues
        Recreational drug use
        The decriminalization movement
        Arguments for criminalization

     2.  Drugs and harm to users

        Consequentialism and drug use
        Autonomy and drug use
        Analogies
        Addiction and autonomy
        Addiction, slavery, and autonomy
        "Soft" paternalism and drug use
        "Hard" paternalism and drug use
        Conclusion

     3.  Drugs and harm to others

        Utilitarianism and drug use
        The evaluative assumptions in utilitarianism
        Harm and disutility
        The nature of criminal harm
        Anticipatory offenses
        Drugs and crime
        Conclusion

     4.  Restrictions on drug use

        Local controls and the importance of community
        Reasonable regulation of drug use
        Special cases: Pregnant drug users
        Adolescents and adults
        A moral right to use drugs: Misinterpretations

 

Drugs and Rights  1992 by Cambridge University Press
ISBN 0-521-42727-4

The Introduction and Chapter 1 appear in
The Schaffer Library of Drug Policy by permission of the Author

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    This timely and important book is the first serious work of philosophy to address the question: Do adults have a moral right to use drugs for recreational purposes? Many critics of the "war on drugs" denounce law enforcement as counterproductive and ineffective. Douglas Husak argues that the "war on drugs" violates the moral rights of adults who want to use drugs for pleasure and that criminal laws against such use are incompatible with moral rights.
    This is not a polemical tract but a scrupulously argued work of philosophy that takes full account of all available data concerning drug use in the United States today. The author is careful to describe the properties a recreational drug would have to possess before the state would be justified in prohibiting it. Since criminal laws against the use of recreational drugs are justified neither by the harm users cause to themselves nor by the harm users cause to others, Professor Husak concludes that such laws are, in almost all cases, unjustified.
    The book will be of particular interest to philosophers in applied ethics and philosophers of law, but it will prove provocative for any reader seriously concerned with the issues of drug use and drug control.

Introduction

    This book does not propose yet another solution to our nation's intractable drug problem. As H. L. Mencken is reputed to have said about the alcohol problem during the era of prohibition, "No intelligent man believes the thing is soluble at all." Whether or not the drug problem can be solved, many commentators have addressed the issue from the perspective of social policy. I have little new to add to their discussions.
    I approach drug use from an individual rather than a social perspective. My central concern is to identify the moral rights of adult users of recreational drugs. I discuss social policy only insofar as it has a bearing on these rights. Moral rights have been all but ignored both by the state in its war on drugs and by theorists who have written, oftentimes critically, about this war. It is easy to see why rights are neglected by a state at war. What is more difficult to understand is why commentators have been so passive in calling attention to this neglect. Those scholars who have dissented in the war on drugs are seldom motivated by a desire to protect the rights of drug users. More frequently they have protested that the war cannot be won, or that it is too costly, or that it exacerbates the very problems it is designed to solve.
    When individual rights are mentioned at all, they are usually the rights of innocent persons jeopardized by overzealous law enforcement. Criminal procedure provides the legal battleground for these debates. The war on drugs has expanded the police power of the state in a variety of ways. However, the nonusing public did not become alarmed until they were directly affected by this expansion. A modest outcry was expressed about such practices as random roadblocks of drivers, mandatory drug testing of employees, early curfews for juveniles, and police searches of garbage. These tactics threaten the innocent and the guilty alike.
    But what about the substantive rights of many of the very persons against whom the war is waged, that is, adults who use drugs recreationally? The war, after all, cannot really be a war on drugs, since drugs cannot be arrested, prosecuted, or punished. The war is against persons who use drugs. As such, the war is a civil war, fought against the 28 million Americans who use illegal drugs annually. And unlike previous battles in this apparently endless war, current campaigns target casual users as well as drug abusers.
    Millions of Americans have been punished---oftentimes severely---for breaking criminal laws against the recreational use of drugs. A majority of these persons have been punished simply for drug possession and use. If existing statutes turn out to violate their moral rights, the cumulative injustice is among the greatest in American history. Yet neither the public nor the intellectual community has expressed much sympathy for the plight of drug users who are prosecuted and convicted. I believe that such sympathy is long overdue. No laws enforced by such harsh punishments rest on a more flimsy rationale than those prohibiting the use of recreational drugs.
    The very suggestion that adults may have a moral right to use drugs for recreational purposes is bound to strike many readers as ludicrous. I offer three quick responses to persons who share this initial reaction. First, proposals to countenance new and unfamiliar rights are typically greeted with disdain and ridicule. The moral rights of women and blacks were recognized reluctantly. Second, the right to use drugs recreationally is not really new. Less than a century ago, few commentators thought that the state had the authority to prohibit the use of recreational drugs. Finally, the issue of whether a moral right should be recognized depends on philosophical argument, not consensus. If belief in this right is outrageous, its existence should be easy to refute.
    I pursue two closely related projects in this book's four chapters. The first is an exercise in moral and legal theory, involving an attempt to clarify the limits of the criminal law. I seek to answer the following questions. Does the state have the legitimate authority to punish adults who use drugs recreationally? If so, for what reason(s)? May the state punish persons for using any drug recreationally? What properties must a hypothetical drug possess before the state has the authority to prohibit it?
    My second project applies the theoretical conclusions I reach. I attempt to identify the existing recreational drugs that satisfy or fail to satisfy the criteria for criminalization I have described. Thus I seek to determine whether laws against the use of actual recreational drugs violate moral rights. This project is more tenuous, and my conclusions are more qualified. Some of the criteria for criminalization are vague, imprecise, and hard to apply to particular cases. Moreover, the empirical data about drugs and drug use on which I rely are inconclusive and subject to constant challenge and revision. No factual claim I make about a particular drug is beyond controversy. Although important progress has been made, we still have much to learn about drugs and drug users. Still, I hazard any number of observations about the justifiability of criminalizing the use of existing recreational drugs. Much of my attention is focused on heroin and cocaine (crack and powder), since many drug prohibitionists believe them to be our greatest problems. If adults have a moral right to use heroin and cocaine, they probably have a moral right to use most or all other existing recreational drugs.
    I attempt to describe what a drug would have to be like before adults would have a moral right to use it for recreational purposes and what a drug would have to be like before adults would not have a moral right to use it for recreational purposes. On the basis of the evidence I will cite, I conclude that a strong case can be made that the use of most or perhaps all existing recreational drugs should be permitted. This does not imply that adults would have a moral right to use any conceivable drug recreationally; the prohibition of drug use is not inevitably beyond legitimate state authority. Someday a recreational drug might be created that the state would have compelling reasons to prohibit. However, I am skeptical that such a recreational drug exists today.
    Few philosophers have addressed either the theoretical or the practical questions I raise here. Despite the growing attention contemporary philosophers purport to pay to current moral and legal issues, almost all of their focus has been directed to a very few matters, usually involving life and death. Discussions of abortion, euthanasia, capital punishment, and animal rights tend to dominate the philosophical landscape. The scant literature on the moral status of recreational drug use is greatly oversimplified. Much of it defends one or another extreme position. Commentators believe either that the prohibition of drugs is not the business of government or, more often, that drugs are a scourge that no responsible state would tolerate. I reject both of these extremes in favor of a more moderate position.
    In the first three chapters, I assess the justifiability of prohibiting the recreational use of drugs altogether. Other than caffeine, alcohol, and tobacco, the recreational use of drugs is almost totally proscribed throughout America today. I critically examine what can be said for and against these general laws. In Chapter 4 I investigate what restrictions may be placed on recreational drug use if a total ban is indefensible.
    My approach to these issues makes frequent reference to other recreational activities that I compare and contrast with drug use. One reason persons are confused about this issue is that drug use is treated as sui generis. But drug use is similar to, and yet dissimilar from, any number of other recreational activities about which most Americans have strong feelings. Clear thinking about the rights of drug users is facilitated by exploring these similarities and differences.
    I will proceed as far as possible without immediately distinguishing between the several different kinds of drugs. An alternative to my approach would begin by sorting drugs into different categories, depending upon their pharmacological properties, and discussing each drug separately. This organizational device might seem more likely to yield valuable insights. The arguments for and against the legalization of caffeine and heroin may appear to differ so radically that little progress can be made by assimilating them. Nonetheless, a surprising number of the arguments for and against prohibitions of recreational drug use can be evaluated without attending to the differences between various drugs. Of course, I will note these differences at the several places they become important.
    My arguments make use of pharmacological data about the effects of drugs and, to a greater extent, of sociological evidence about drug users. There are good reasons to pay more attention to sociology than to pharmacology. The effects of drugs on users and nonusers is a function of a complex set of variables, of which pharmacology is only one. Evidence about how recreational drugs are actually used by human beings in the real world---and not, for example, by rats in laboratories---provides the most reliable perspective. Conclusions drawn from this data are surprising. Even well-informed Americans tend to have a distorted stereotype of drugs and drug users. As a result, bad arguments in favor of criminal legislation prohibiting recreational drug use appear better than they are, whereas more respectable arguments appear virtually unassailable.
    I am concerned to understand the best principled reasons for denying that adults have a moral right to use any or all recreational drugs. No doubt I will omit a discussion of several such reasons. Some of these reasons are foolish: It is hard to resist the temptation to respond to them, if only to indicate how nonsensical some of the rhetoric of drug prohibitionists has been. For example, I do not take seriously the suggestion that laws against recreational drug use are needed to stop the growth of satanic cults. Other reasons I will neglect are not so foolish. For example, I will not respond to the objection that persons have no moral rights at all, or that they have only those moral rights that the state chooses to give them. Moral argument must begin somewhere, and mine begins with the assumption that persons have moral rights against the state.
    I do not attempt to derive the moral rights of drug users from a single, simple principle. Nor do I begin with a theory about the limited role of state authority and conclude that the prohibition of drug use lies beyond its scope. In fact, I will have almost nothing to say about the foundations of the moral rights I presuppose. This neglect may disappoint philosophers who are unpersuaded by anything less than a comprehensive moral theory in which rights are ultimately justified. I fear that presenting such a theory would detract more than it would add. Anyone who is antagonistic toward my philosophical foundation would be likely to resist the edifice I build upon it. I hope that the assumptions I make and the inferences I draw from them, are congenial to philosophers who may disagree radically about the deeper foundational issues I try to avoid. My arguments should appeal both to libertarians and to those who share the ideal of an activist government with the authority to cope with a wide range of social problems. The foundations of political authority need not be challenged to appreciate the weakness of the case in favor of criminal laws against the recreational use of drugs.
    I will not discuss the very real possibility that the prohibition of drug use should not be understood in rational terms. Some commentators have suggested that the war on drugs is largely symbolic, serving to express the anxiety that authorities with political power feel toward persons who are deviant and unconventional. I am not especially interested in the psychology of drug prohibitionists. To suppose that drug laws cannot withstand rational scrutiny concedes what I believe must be demonstrated. I trust that no one is prepared to argue that the symbolism of the drug war serves to justify it.
    For two reasons, I approach this project with modest expectations about my ability to change the minds of those who are firmly opposed to any suggestion that adults may have a moral right to use drugs recreationally. First, since my arguments depend on a balancing of several factors, reasonable minds can and will differ about how these factors should be weighed. Moral and legal argument is difficult because it often requires a balancing of incommensurables. Second, for reasons that are deep and mysterious, this topic is among a small handful of issues that seem almost immune to rational debate. One might as well attempt to shake the confidence of a fundamentalist about the existence of God.
    Nor do I anticipate sparking an interest in legislative reform. The current political climate is unfavorable to the decriminalization of any recreational drugs. Although political climates have been known to change rapidly, a real debate on the issue of drug decriminalization would be likely to polarize the country even more divisively than the abortion controversy. In the meantime, I appeal to those whose capacity to remain open-minded is not constrained by their need to be reelected.
    In defending a moderate position about whether adults have a moral right to use drugs recreationally, my arguments necessarily become somewhat complex. I draw lines in new and unfamiliar places. This complexity creates three concerns. First, it might discourage and frustrate persons who are initially interested in the topic but who hope for simple solutions. If the problem were easy, reasonable minds would not differ about it. Second, clear and easily applied answers to the questions I raise are not forthcoming. At no time do I pretend to have said the last word about a particular argument for or against drug prohibitions. Finally, the tone of my discussion is academic and serious. I am reminded of a comment made by a student who evaluated a course entitled "Philosophy and Sex." The professor treated this topic with the serious care it deserves, but the course disappointed many of the students who enrolled in it. One complained: "I never knew sex could be so dull." I hope that my attempt to provide a serious assessment of the moral rights of recreational drug users does not give rise to a similar reaction. I know of no better way to make a topic exciting than to treat it with philosophical sophistication.

Chapter 1


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