Apersuasive case for the decriminalization of drugs is one that succeeds in establishing the following two claims:

1. All justifications offered for continuing to punish drug use are ethically unjustifiable.

2. Not only are there no good reasons to justify the punishment of individuals for engaging in drug use, but there are also plenty of good and positive reasons to decriminalize recreational use as well.

In The Legalization of Drugs, Douglas Husak mounts a persuasive case that seeks to defend both claims and thus establish that the continued prohibition of drug use is ethically unjustifiable. Here, I will discuss Husak’s arguments for the second claim, that is, the positive reasons he gives us for drug decriminalization. The reason for this focus is primarily because responses to common prohibitionist claims (things like “Marijuana should be illegal because it’s a gateway drug”) are much more common than positive cases for decriminalization.

The moral principle central to the case for decriminalization is that no one should be punished without excellent reason to do so.

The claim is a simple one: You shouldn’t punish people unless they deserve it. Given that there are no good reasons for punishing recreational drug users, it follows that drug decriminalization is the just and sensible position for the state to adopt towards recreational drug users.

In its simplest form, the argument goes like this:

1. No one should be punished without excellent reason to do so.

2. There is no good reason to punish recreational drug users.

3. There are good reasons to allow individuals to engage in risky behaviors, so long as those behaviors do not violate the rights of others.

4. Therefore, recreational drug users should not be punished.

6. Jail, prison, probation, and fines are all forms of punishment.

7. Therefore, jail, prison, probation, and fines for recreational drug use ought to be abolished (decriminalization).

Notice that this strategy is one that places the burden of proof solely on the shoulders of proponents of punishment for drug users. Far too often, debates over decriminalization erroneously assume that because the illegality of drugs is the status quo, anyone seeking to change the current state of things is burdened with the task of providing positive reasons for decriminalization, which conveniently ignores the responsibility of the state to justify its policies.

If neither the state nor defenders of our continued drug policies can provide a rational justification for the continued practice of incarcerating drug users, then the use of punishment by the state against drug users is morally unjustified.

Ideally, debunking the arguments of drug prohibitionists would be enough to establish the moral imperative of decriminalization, but Husak goes one step further. He sets out to provide positive reasons as to why the law ought to abolish the practice of criminal punishment for drug users. That is, the negative case aims to rebut arguments for prohibition, while the positive case aims to establish that decriminalization is worthwhile.

The Value of Drug Use

Why do drug users engage in illicit drug use? One popular answer to this question is mood control. We take drugs to steer our moods and consciousness in desired ways.

This is true not only for illicit but also licit drug use. We consume caffeine mostly in the morning when we are tired and want to feel more awake. We consume alcohol in the evenings when we want to unwind and relax. So the rationale for drug use is one we already feel comfortable and at home with: people consume substances to steer their consciousness and moods in a direction they desire.

Many individuals use marijuana to relax; others take LSD to have fun; others use MDMA as a social lubricant—to “open up” to individuals and also empathize with them to a degree they otherwise would not be able to; amphetamines are taken as an energy boost, to improve concentration, and relieve the tedium of boredom. Drugs, both licit and illicit, are valuable insofar as they allow us to control our moods and steer them in directions we otherwise would not be able to achieve in their absence.

A crucial observation here is to note that we don’t tend to demand justifications for other recreational pastimes. We don’t demand of football fans that they provide a justification for their enjoyment of the sport. Such a justification would be extremely difficult to provide given that most people’s preferences for any given team are arbitrary. Yet this arbitrariness has no bearing on our tolerance of such sports fanaticism. We allow people the liberty to act according to their own preferences because doing so is the mark of a free society. We allow individuals to pursue their pastimes because doing so brings them pleasure, and we recognize that this pleasure is the only reason we need to accept the many hobbies and pastimes people become involved with.

Of course, there are limits. We do not allow individuals to harm one another simply for pleasure. In such cases it is the duty of the state to intervene in order to protect the rights of the victimized. But when no rights are being violated, the state tends to adopt a policy of tolerance. It should be noted that drug legalization and/or decriminalization is perfectly consistent with the view that while recreational use is to be tolerated, engaging in drug use that directly puts the lives of others at risk or creates the possibility of harm should be punished.

The law already accounts for this, most commonly for driving under the influence of alcohol. It is perfectly consistent to hold the view that recreational use in one’s own home (or designated places) ought not be punishable, whereas operating heavy machinery, driving, public intoxication, and/or being under the influence at work should be subject to punishment, depending on the severity of the risk and the substances being used. Decriminalization is not the view that one’s personal responsibility to others is no longer subject to state regulation. The view being defended here is the idea that recreation for its own sake, in the right kinds of environments, ought not to be subject to criminal punishment.

Of course, our initial response to this might be to ask “but what about when recreation is dangerous?” The answer is that our recognition of the value of recreation must come with a certain level of willingness to allow individuals to take risks when engaging in the activities they choose to pursue. We tend to tolerate risks when individuals engage in the use of licit drugs when using them is for the purpose of treating some kind of medical condition. And yet, why do we tend to not tolerate such risks when we engage in drug use for the sake of recreation?

Our zero tolerance policy for the dangers associated with recreational drug use is difficult to defend in light of our acceptance of the dangers involved in other recreational activities we do tolerate. Presumably none of us would think that the risk of sky-diving is so high that individuals who engage in that pastime ought to be punished for doing so.

Consider the dangers associated with scuba diving, bull running, free climbing, white water rafting, heli-skiing, and base jumping. The mortality rate for many of these activities is much higher than the mortality rate for many of the drugs we use recreationally. Why don’t we require that the individuals engaged in these activities provide a good justification for engaging in them? Because we are willing to allow people to decide for themselves whether they value these activities. Because even when we cannot fathom why anyone would jump out of an airplane with a parachute simply for the thrill, we defer to their judgment about whether such activities are worth the danger.

So Husak’s case can be summarized in this way:

If we do not require individuals to have a very good reason, such as the need to cure a disease or illness, before we allow them to engage in extremely dangerous activities, then why do we require such reasons when the recreational activity they’re seeking is drug use?

Earlier I explained that Husak is engaged in two projects: a negative case and a positive one.

The negative case is made on the grounds that there are no good reasons that the state has provided to justify its policy of punishing recreational drug users. Since punishment is one of the worst things the state can do to us, any instance of punishment requires moral justification before the state can legitimately use it as a form of social control. Since there are no good reasons the state can or has provided to justify its use of punishment to control recreational drug use, then such punishment is unjustified. The case is negative because it places the burden of proof on the entity that is seeking to engage in punishment.

The first step in the positive case is to establish that drug use is valuable insofar as we value and tolerate recreation when doing so does not infringe on the rights of others. We value recreation and we value the ability to steer our consciousness and moods in directions we deem desirable. Recreational drug use allows us to do this. Consequently, there is instrumental value in recreational drug use, value that we recognize in other avenues as not being worthy of punishment. Therefore, we have provided at least one positive reason for the decriminalization of recreational drug use.

In the absence of good reasons for the continued prohibition of drug use, and given that there are positive reasons to decriminalize, the ethical course of action is to put a halt to the continued punishment of individuals who engage in substance use for the sake of altering their consciousness in ways they deem desirable.

In Part 2 I will continue my overview of Douglas Husak’s positive case for the decriminalization of recreational drug use. I’ll focus on Husak’s second argument, which he calls the counterproductive consequences approach.

This argument aims to establish that the current policy of punishing recreational drug users has resulted in, and continues to lead to, several unintended consequences. Given the seriousness of these unintended consequences, and the tangible harms they inflict, drug prohibition would have to accomplish enormous benefits in order to justify and offset its impact. Since our punitive policies do not accomplish this, decriminalization is a preferable approach.

I should note that Husak’s case is far from comprehensive. I encourage the reader to read the primary literature for further details.

Husak’s argument rests on listing seven ways in which our policy of punishing illicit drug users is counterproductive:

Racial Bias

The ongoing policy of drug prohibition has been selectively enforced against minorities. This is something on which I myself have compiled a large body of empirical data, as lifted from Michelle Alexander’s The New Jim Crow.

The data is shockingly clear, our criminal justice system disproportionately targets people of color and incarcerates them at far higher rates than their white counterparts, even when the rates of substance use are the same.

About 10 million whites and two million blacks are current users of illicit drugs. But even though white drug users outnumber blacks by a five-to-one margin, blacks constitute 62.7 percent, and whites 36.7 percent, of all drug offenders admitted to state prisons. Most commentators agree that these facts prove our drug policy is racially biased. Selective prohibition would have vanished long ago if whites had been sent to prison for drug offenses at the same rate as blacks.

Drug Prohibition is Destructive to Public Health

For obvious reasons, the FDA does not regulate the labeling, manufacturing, and sale of illicit drugs. Because of this, we have no state sponsored means of knowing exactly what is in the drugs purchased on the streets. Often times a drug sold as ecstasy will be cut with substances other than MDMA, often times cocaine, ketamine, caffeine, and PMA. This sometimes makes accurate dosing difficult, as the usual dosage thresholds don’t seem to produce the desired results, which can lead to overdosing. Thus, the illegality of drugs contributes and exacerbates the dangers associated with them.

In fact the adulterants (cuts) in illegal drugs are often far worse than the drugs themselves.

One recent example of this is cocaine being cut with levamisole, a drug used to treat cancer and used to deworm animals. Taken in large doses, levamisole can reduce a person’s white blood cell count, making them more susceptible to infections. In severe cases, the drug can lead to death. It is critically important to know and trust the source of your supply—it can literally be a matter of life and death.

Truth

Honest, science-based debate about the merits of drug policy is not the norm in our culture. In fact, according to a recent report by the Multidisciplinary Association for Psychedelic Studies, the DEA illustrates “a decades long pattern of behavior that demonstrates the agency’s inability to exercise its responsibilities in a fair and impartial manner or to act in accord with the scientific evidence.”

The alleged dangers of drugs have also been vastly overestimated due to government propaganda that continuously spreads discredited myths.

Dr. Carl Hart, associate professor of psychology and psychiatry at Columbia University has become a notable supporter of the re-evaluation of drug related scientific literature. He notes that there has been much misinformation in regards to drugs, pharmacological effects, and the harm they cause. Hart states that the scientific community is complicit in the spread of misinformation. For example, he states that the effects of drugs such as cocaine and ecstasy are studied using such high doses that “it’s inevitable you’d see toxicity, in the same way that you’d see toxicity if you studied people on extremely high doses of alcohol or nicotine” [ref](Shetty, 10AD, p. 1627)[/ref].

As Dr. Carl Hart explains:

“While the goal of decreasing drug abuse is a commendable one, these types of media campaigns have been shown to have no effect on drug use or abuse[ref] (Anderson, 2010)[/ref]. Furthermore, they do not disseminate any real facts about drug effects, but they go a long way to perpetuate false assumptions about illegal drug use and their effects.”

Erosion of Civil Liberties

Since illicit drugs are easy to conceal and involve consensual transactions that typically occur behind closed doors, police have been forced to resort to unusual and questionable tactics to enforce criminalization.

The constitutional rights of the general public are therefore threatened in at least two ways.

First, the burden placed on law enforcement officials to enforce possessory laws without witnesses compels them to engage in wholesale violations of constitutional protections against unreasonable searches and seizures. For every search that produces contraband, there are untold scores of searches that do not.

One point should be made clear. The police are not the heavies in this tale. They are only doing what drug-law advocates have asked them to do by the only means such a task can be done effectively. It is the drug-law advocates who must bear the responsibility for the grave social problems caused by their favored policies. By demanding that the police do a job that cannot be done effectively without violating constitutional rights, drug-law proponents ensure that constitutional rights will be violated.

Corruption

Husak says very little about this, but more information regarding drug-related police corruption can be found in the United States General Accounting Office’s report on the topic.

Drug law enforcement creates an artificial scarcity of a desired product, resulting in sellers receiving a higher price than they would without such laws.

The extremely lucrative nature of the illicit drug trade makes the increased corruption of police, prosecutors, and judges inevitable. And this corruption extends far beyond the enforcement of drug laws.

Beginning with the prohibition of alcohol, we have witnessed the creation of a multibillion-dollar, world-wide industry to supply prohibited goods and services. The members of this industry are profit maximizers, whose market advantage is their willingness to rely on violence and corruption to maintain their market share and to enforce their agreements.

Financial Costs of Drug Prohibition

State and federal governments now spend close to $40 billion each year combating illegal drugs. Most of which has been wasted.

According to economist Jeffrey A. Miron, the best available evidence shows that prohibition reduces drug use only modestly, and most of this reduction is for casual users rather than “addicts.” Therefore, It is hard to see how any benefits from prohibition could possibly outweigh its incredible costs.

Which brings us full circle. In addition to the lack of compelling reasons offered in support of the continued policy of drug prohibition, Douglas Husak has provided a positive case for the decriminalization of drugs. I have outlined seven negative effects of our policy of drug prohibition—negative effects, which, according to Husak and economist Jeffrey Miron, are not outweighed by the positives of prohibition.

Therefore, we should at least adopt a policy of decriminalization for recreational drug use, and seriously consider reflecting on the proposed models of full drug legalization.

As we have seen, the continued policy of drug prohibition produces harmful unintended consequences.

Since the most commonly advanced justification for punishing drug users is that of deterrence, and given that prohibitionist policies do not deter drug using behavior, and given the further positive reasons we have for decriminalizing drug use, we have extremely good moral grounds for advancing the view that drug prohibition is morally unjust, and pragmatically useless.

Even if prohibitionist policies were shown to be effective in decreasing rates of substance use and abuse in the population, this by itself would not be enough to justify the prohibitionist stance.

Given that such policies fall under the umbrella of governmental paternalism, we all recognize the harms of tobacco and alcohol on society, yet we do not deem it necessary for the state to outlaw all such substances, even though any argument against drug prohibition grounded on deterrence is equally likely to apply to the harms caused by alcohol and tobacco. The seemingly obvious requirement that the application of the law should be consistent requires that the proponent of drug prohibition provide a compelling reason why alcoholic substances should continue to remain legal while substances like LSD should not. No persuasive arguments of that sort are anywhere to be found.

There is widespread disagreement in the philosophy of law regarding the role and scope of governmental power, and our views regarding such intrusions into our private lives by the state will largely be dependent on background assumptions about the proper scope and role of government in the first place. This forces the proponent of prohibition to justify paternalistic policies, like drug prohibition, by appealing to a philosophical theory that explains why the state is morally justified in invading on our right to be the stewards of our own consciousness—a theory that must account for the differences between the harms caused by alcohol and tobacco and those of illicit drugs, and why one group of substances is allowed but not the other. Alternatively, the prohibitionist can simply bite the bullet and argue that yes, his/her position does entail that all alcoholic and tobacco products ought to be criminalized, a position not many are willing to openly embrace.

There are therefore sound reasons for believing that drug decriminalization is the morally sensible position to take in regards to the recreational use of mind altering substances.