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.