From Moral Issues that Divide Us and Applied Ethics: A Sourcebook
2. An Argument for Drug Legalization -- American Civil Liberties Union
Jeff is a 35 year old drug addict who lives in his mother’s basement. Though he works on and off in construction, he is incapable of holding down a full time job, and whatever he does earn quickly goes into his drug habit, which currently is methamphetamine. His days consist largely of watching TV, hanging around with other meth addicts and getting high. He’s been in and out of jail for drug possession, theft, and disorderly conduct, and he’s been in drug rehabilitation programs 7 times, most of which were part of plea bargain agreements. Since eighth grade he’s been a regular drug user and has sampled most of what’s out there. His exceptional intelligence enabled him to coast through high school and two years of college, but as he became more dependent on drugs he lost interest in even attending class and ultimately dropped out. He was married once, with two children, but after draining the family income and pawning almost everything in their apartment to support his habit, his wife left him with the kids and he hasn’t seen them since. He’s let his appearance go, lost several of his teeth and, now looking almost as old as his mother, it’s been years since he’s been out on a date. In addition to his meth use, he is an alcoholic and smokes heavily, and his prospects for living past his 40s are minimal.
There is nothing particularly remarkable about Jeff’s story, and in fact it is representative of countless people in our society. In this chapter we will examine the moral issues surrounding drug use, or, more accurately, a subset of drug use specifically involving what are called “recreational drugs”. These are psychoactive drugs (that is, drugs with mind-altering effects) that are taken mainly as a source of pleasure rather than for medical purposes. The most common ones are typically categorized into the following four groups:
The most widely used legal psychoactive drugs are caffeine, alcohol, and nicotine. Our focus here, though, will be primarily on the use of illegal drugs, such as marijuana, cocaine, heroin, and methamphetamine.
Psychoactive drugs have been used in society for as far back as history provides us with records. Many are naturally produced in plants and easily accessed by human populations in the regions in which they grow. Just as alcohol plays a key function today in social events, psychoactive drugs from plants have also been incorporated into community celebrations, rites of passage, and religious ceremonies. For better or worse, most societies today that accept or at least tolerate alcohol are reluctant to view other drugs the same way. Alcohol’s widespread acceptance owes in part to the fact that the natural fermentation process occurs everywhere around the world, whereas other psychoactive drugs will grow only in special climates.
It is impossible to discuss the issue of recreational drugs without speaking of the harms associated with them, most of which we all well know from news stories and popular fiction. One immediate type of harm is that to the users themselves. While many drugs can be taken in limited quantities with no ill effects, the cumulative use of many, though, are particularly harmful. According to the Center for Disease Control, in 2010, 40,000 people in the U.S. died from illegal drug—double of what it was ten years prior. By comparison, in the same year 30,000 were from motor accidents, and 16,000 homicides. Drug-induced included those from overdose, heart attack, organ damage, and even malnutrition. Brain damage is also common. In 2011 around 2.5 million emergency admissions to hospitals were the result of recreational use. In addition to the immediate health risks of extended drug use, there are also secondary harms to users, such as sexually transmitted diseases that result from reduced inhibition and poor precautionary judgment. HIV and hepatitis C commonly result from injection drug use. As with Jeff, a life of heavy drug dependency often derails normal human interests in careers, families, and other activities that we typically consider productive.
In addition to harm that drugs cause to the users themselves, there is also harm caused to others. Drugged driving is a problem where one out of eight weekend nighttime drivers tested positive for at least one illicit drug. Perhaps the most tangible harm to society from drug dependency is its link with crime. A recent study of arrests in five large cities showed that 63-83% of arrestees tested positive for illegal drugs (ONDCP Fact Sheet). Often crimes are committed by users whose drug habit outstrips their legitimate incomes. Muggings and theft are commonly connected with addiction, and women who ordinarily would never consider prostitution often compromise their convictions to support their drug habits. There are the tragic consequences when people under the influence of drugs get behind the wheel of a car or have their judgments impaired in a job that could put people’s lives at risk, such as with physicians or building contractors. There is also the harm that drugs cause to the user’s family: family resources are depleted, children are neglected and even forced by their parents into prostitution or drug running to boost the family income. Many children of drug-addicted parents end up homeless.
Yet another harm that results from drugs is that involving the illegal drug trade itself. The business of dealing in drugs is a particularly dangerous one, and the high murder rate in large cities owes much to feuding between dealers—disputes over distribution territory, payback for dishonest negotiation, retaliation for the killing of a gang member. The danger also extends to members of the community where dealers do their business. Residents are held hostage to the dangerous drug trade that infiltrates their streets, and pedestrians are often hit with stray gunfire. Young children are routinely recruited for distribution tasks, and weapons make their way into schools. Federal and local governments devote billions in tax dollars to fighting the illegal drug trade, often with minimal success. Prison population is at an all-time high, a large percentage of which is drug related, which, again, burdens taxpayers. Spouses and children of the inmates also suffer as they face new financial and domestic problems.
Alcohol is an unusual drug with a unique set of harms. Alcoholic beverages have been around since ancient cultures, in some places for more than 10,000 years. Its nearly universal availability and acceptance owes in large part to the fact that the alcohol fermentation process occurs naturally in any geographical location. Contrast that with mind-altering drugs, such as marijuana and opium, which grow naturally in only select regions. Although alcoholic beverages have been grandfathered into social acceptance, the harms from alcohol abuse are as severe as those from illicit drugs, and if alcohol was only first discovered today it would likely be banned as a dangerous drug. In fact, one study shows that alcohol use is more likely than marijuana use to lead to violence between partners (tntoday.utk.edu).The harms from alcohol abuse are well known, and they cut across all age and socio-economic groups; it is responsible for around 25,000 deaths per year (ONDCP Fact Sheet). A good example is the harm that results from college drinking. In the U.S., nearly 2,000 students die each year from alcohol-related accidents, and another 600,000 are injured. 700,000 students are victims of assault, 100,000 from sexual assault or rape. Alcohol abuse in colleges leads to unsafe sex, academic problems, drunk driving, suicide attempts, and property damage (www.collegedrinkingprevention.gov).
The above harms with both drugs and alcohol are indicators of what is often called “substance abuse”, and the standard criteria for substance abuse in the mental health counselling industry is this:
A pattern of substance use leading to significant impairment or distress, as manifested by one or more of the following during in the past 12 month period:
1. Failure to fulfill major role obligations at work, school, home such as repeated absences or poor work performance related to substance use; substance-related absences, suspensions, or expulsions from school; neglect of children or household;
2. Frequent use of substances in situation in which it is physically hazardous (e.g., driving an automobile or operating a machine when impaired by substance use);
3. Frequent legal problems (e.g. arrests, disorderly conduct) for substance abuse;
4. Continued use despite having persistent or recurrent social or interpersonal problems (e.g., arguments with spouse about consequences of intoxication, physical fights); (DSM-IV)
A hallmark of drug use is that it is addictive. The notion of “addiction” is hard to pin down, and it often varies depending on who you ask. The World Health Organization defines drug addiction as follows:
Drug addiction is the state of periodic or chronic intoxication detrimental to the individual and to society, produced by the repeated consumption of a drug (natural or synthetic). Its characteristics include (1) an overpowering desire or need (compulsion) to continue taking the drug and to obtain it by any means (2) a tendency to increase the dosage, and (3) a psychic (psychological) and sometimes physical dependence on the effects of the drug.
A standard legal definition of “drug addict” used in U.S. law is this:
The term “addict” means any person who habitually uses any habit-forming narcotic drugs so as to endanger the public morals, health, safety, or welfare, or who is or has been so far addicted to the use of such habit-forming narcotic drugs as to have lost the power of self-control with reference to his addiction. (U.S. Code, 41.201)
A common distinction is drawn between drugs that are physically addictive and those that are only psychologically addictive. Physically addictive ones are accompanied by severe physiological withdrawal symptoms, whereas psychologically addictive ones lack such symptoms.
Society has viewed drug addiction in largely two ways: the moral model and the disease model. According to the moral model, addiction is ultimately a matter of personal choice, where users have enough control over their actions to continue or not continue with their addictive behavior. It may be difficult to stop, but with the right will power it can be accomplished. Failure to do so is a moral weakness where users know that their actions are wrong but opt to do them anyway. This is the rationale behind traditional religious views that condemn addictive behaviors as sinful, particularly drunkenness and gluttony.
By contrast, the disease model of addiction maintains that addiction is no more a matter of choice than having a mental illness like schizophrenia. Biochemical changes within the brain take place and have a permanent effect on users’ drives. Simple willpower is not sufficient to break free of the addiction, and it must be managed in ways similar to how diseases are treated. Some people are particularly prone to addiction for largely genetic reasons, and are sometimes described as having addictive personalities. Otherwise normal people, without this genetic predisposition, still can become addicts when chemical changes within the brain reach a certain threshold, specifically when the brain’s reward center permanently connects a type of behavior with a pleasure response. In either case, even if users can be reprogrammed to resist a particular behavior, the addictive mechanism within the brain is already fixed and they will forever remain addicts. The disease model of addiction first emerged in the 1940s, and within a few decades it was embraced by both the American Medical Association and the World Health Organization.
Extreme advocates of the disease model sometimes argue that drug addicts who break the law as result of their addiction, such as by stealing to support a drug habit, should not be punished for their conduct, but instead given therapy. They are in essence broken machines that need to be fixed, not punished. However, many mental health organizations that deal with drug dependency incorporate both the disease and moral models. While there are certainly physiological causes of addiction that cannot be over looked, there is nevertheless an element of moral responsibility that users have to control their addiction and to be accountable for the harms that they’ve caused others through their addiction.
What People Think
While people in the U.S. are reluctant to legalize hard drugs such as heroin, meth and cocaine, attitudes are more lenient when it comes to marijuana, as reflected in the following surveys (conducted October, 23-24, 2002, www.pollingreport.com):
"Do you favor or oppose the legalization of marijuana?"
Favor: 34 %
Oppose: 59 %
Not sure: 7 %
"Assuming marijuana is not legalized, do you think people arrested for possession of small amounts of marijuana should be put in jail, or just have to pay a fine but without serving any time in jail?"
Put in jail: 19%
Just pay a fine: 72%
Not sure: 3%
"Do you think adults should be allowed to legally use marijuana for medical purposes if their doctor prescribes it or do you think that marijuana should remain illegal even for medical purposes?"
Allow medical use: 80%
Illegal even for medical purposes: 17%
Not sure: 3%
"According to statistics, lots of people have tried marijuana at least once. How about you, have you tried marijuana at least once?"
Not sure: 3%
The issue of drug use has both a moral and legal dimension. On the one hand, even if drug use is legal, we can ask whether the use of such drugs is immoral. Just because the law permits me to do something doesn’t mean that I should do it—such as smoking or riding a motorcycle without a helmet. On the other hand, even if it is immoral to take drugs, we can still ask whether the use of such drugs should be illegal. The law permits us to do a range of immoral activities, such lying to others or cheating on one’s spouse. While these are things that we shouldn’t do morally speaking, at the same time we don’t want our laws telling us how to conduct our private lives. For the moment, let’s set aside the issue of whether drugs should be illegal and look specifically at whether drug use is immoral. We’ll consider two lines of thought: one based on the pleasure that drugs bring to the user, and another based on the duty to avoid harming oneself and others through drug use.
Drugs and Pleasure: Epicurean and Stoic Arguments
For the sake of argument, let’s set aside the issue of the physical harms that drugs might pose to users and society at large, and assume that you are in a situation in which you could safely take a drug without the problems of overdose, death, drug wars. When trying to understand the moral ramifications of drug use in such safe conditions, the first thing we need to recognize is that the whole purpose of taking recreational drugs is for the pleasure that they produce, and the pursuit of pleasure comes natural to us. By our very nature we are pleasure-seeking creatures, and much of what motivates us in life is the drive for pleasures of wide variety. There are pleasures from food, romance, TV, movies, music, art, fashion, literature, travel, sports, games, you name it. Through these activities our brain chemistry is altered in ways that give us unique experiences of pleasure, and through this we step out of our normal routines and escape to a new realm. If we remove pleasures from our lives, then human existence becomes a barren landscape of routine actions that we perform throughout each day as we plod along from birth until death. The Greek philosopher Epicurus (341–270 BCE) argued that pleasure is the centerpiece of human life: “it is from pleasure that we begin every choice and avoidance, and it is also to pleasure that we return, using it as the standard by which we judge every good” (Letter to Menoeceus). Epicurus personally recommended that we only pursue pleasures in moderation. Nevertheless, the larger message of his pleasure-seeking philosophy is that, not only is pursuing pleasures morally permissible, but it is something that we should do. French philosopher Michel Montaigne (1533–1592) argued that the pleasures that we get from excessive drinking are so rewarding that we should “refuse no occasion nor omit any opportunity of drinking, and always have it in our minds” (Essays, “Of Drunkenness”). Recreational drug use is yet one more of the many pleasures available to us, and if we permit these more normal types of escapism, we should also permit drug use.
As compelling as this Epicurean argument may seem, a rival school of ancient Greek philosophy called Stoicism took an opposing position on the pursuit of pleasure. According to Stoics, we should not actively pursue pleasures of any sort, whether normal ones like food and music, or more artificial ones like drug use. Rather, we should exercise restraint through our lives so that we better cope with the unknown and unpredictable tragedies that life invariably gives us. Indulging in pleasure pampers us too much and gives us unrealistic expectations about what life has in store for us. For Stoics, this would be as true for drugs as it is for any other source of pleasure. But there is a fundamental problem with Stoicism in its most extreme form: it’s rather odd to suggest that we should forego all pleasures to help safeguard us from potential psychological trauma. It’s comparable to how a survivalist might devote all of his resources to building and stockpiling a bunker in his back yard, just in case there’s a nuclear war, viral pandemic, or some similar apocalyptic event. He is sacrificing an otherwise normal life to protect himself from a prospect that may not be nearly as likely or tragic as he envisions. The extreme Stoic recommendation seems overly paranoid and would appeal to only a narrow group of loners who are inclined to lead humorless and somber lives.
But while we might for good reason dismiss the extreme Stoic stance against pleasure, a more moderate Stoic view is defensible. Many people do overindulge in pleasures of all sorts. A good example of this is society’s ever-growing credit card debt: desires outstrip financial resources, and disaster results. Also, the rise in obesity shows how challenging it can be to keep our culinary desires in check. Restraint is an important counterbalance to our desires, and restraint often involves learning to walk away from pleasures of every type. To combat credit card debt, we may need to just throw out the card and use cash only. To combat obesity, we may need to throw out all unhealthy food in the kitchen, and never buy it again. We thus cure overindulgence by eliminating its source, and this rationale applies all the more to overindulging in recreational drug because of their addictive nature.
But even when drug use is not addictive, there is something inherently different about drug-related pleasures that may justify Stoic-like restraint. Normal pleasures are very short term, and, if the need arises, we can instantly snap out of our pleasure fantasies to face a more urgent situation. If I’m watching a heart-pounding action movie and then remember that I have a research paper due later that day, I can immediately turn away from it and devote my full attention to the project. By contrast, the mind-altering effect of recreational drugs cannot be turned off at will. We are held hostage to the effects as long as the drug is in our system, and this compromises our ability to act rationally and responsibly. The need to be in control of our minds outweighs the pleasure that we get from mind-altering drugs, and thus we should abstain from them.
What can we conclude from this contest between Epicureans and Stoics regarding recreational drug use? We can agree with Epicureans that pursuing pleasure is an important component of life, and, at least in theory, recreational drugs could play a part in that. But, along with Stoics, we must recognize that there are liabilities associated with all pleasures due to overindulgence. The situation is made worse with recreational drugs since they have no off switch once we take them. Let’s then enjoy in moderation all the normal pleasures that life offers us, but recognize that this one is different because of the grip it has on our cognitive abilities. This doesn’t necessarily mean that all recreational drug use would be morally wrong, but it does suggest that it requires a level of responsibility that rises above the capacities of many if not most people.
Harm to Oneself
The above discussion about pleasure and recreational drugs assumed that drug use poses no physical harm to the user. But that’s certainly not the case. Regular drug use, as we’ve seen, is associated with a range of harms to the user, such as organ damage, brain damage, and death. While we all recognize the obligation to avoid harming others, within traditional moral philosophy there is an additional obligation to avoid harming oneself. German philosopher Samuel Pufendorf (1632-1694) describes this duty here:
since the mind is upheld by the body, the powers of the body must therefore be strengthened and conserved by suitable food and labors, and not injured by intemperance in eating and drinking, untimely and unnecessary labor, or any other means. Hence one must avoid gluttony, drunkenness, excess in love, and the like. And since disordered and violent passions are not only an incentive to disturb society, but also greatly injure the man himself, one must consequently take pains to restrain one's passions so far as possible. [The Whole Duty of Man, 1.5]
While Pufendorf’s reference to “drunkenness” in the above concerns alcohol—the mind-altering drug of choice in his day—it certainly applies to the recreational drugs that we have at our disposal now. Damage to our bodies through any kind of excess is wrong for the simple reason that our bodies keep our minds alive. We in essence are engaged in suicide when we intentionally reduce our life spans through harmful behavior.
The German philosopher Immanuel Kant (1724-1804) also argued that drunkenness is immoral since it violates a duty to oneself. It is an animalistic vice, he maintains, since it lowers the drinker to the level of an animal in his selfish pursuit of pleasure. But, he says, it is not as bad as the animalistic vices of overeating since at least the drinker becomes more sociable while in his drunken state.
The tendency to drink is not as low as a voracious appetite, because the drink is a means that prompts sociability and conversation, and gives people zeal, and this gives him an excuse. But if drinking rises above that level, it becomes a vice of drunkenness. Drunkenness still remains an animalistic vice, but, insofar as it is a source of social interaction, it is not as contemptible as gluttony, which is far lower because ravenous hunger neither fosters social enjoyment nor revives of the body, but only shows its animalistic self. [Lectures on Ethics]
Kant continues, though, that drunkenness in private is just as bad as gluttony since it has no social benefits while still retaining the disadvantages of gluttony.
While the notion of a moral duty to avoid harming oneself was commonplace a few hundred years ago, it is less so now. We do of course recognize that some behaviors are better for us than others, and we all can recite the dos and don’ts of healthy living: we should exercise regularly, eat nutritious meals, and avoid smoking, excessive drinking, and over eating. We also know that, for our own safety, we should wear seatbelts, have smoke detectors in our homes, avoid toxic chemicals, stay away from dangerous parts of town, and see a mental health counselor if we get depressed. While these are all good things for us to do, it’s a little harder to make the case that we are being immoral when we neglect them and engage in self-destructive behavior instead. British philosopher John Stuart Mill (1806–1873) expressed the limitations of duties to oneself here: “The term duty to oneself, when it means anything more than prudence, means self-respect or self-development; and for none of these is anyone accountable to his fellow-creatures, because for none of them is it for the good of mankind that he be held accountable to them” (On Liberty, 4). According to Mill, there is no real moral force behind duties to oneself, other than one’s own conception of self-respect, and that is completely outside the bounds of moral punishment that others might impose on us.
Our notions of morality today are much more confined to how our behavior impacts other people. I may indeed have a moral obligation to put smoke detectors in my house, but that would be primarily for the protection of my family. I may also have a genuine moral obligation to make healthy lifestyle choices, but, again, that would largely be because of the obligation that I have to not be a burden on my family. When other people are out of the picture, and would in no way be harmed by my actions, am I still under a “moral” obligation to avoid self-destructive behavior? While it may be stupid for me to do such things, it is less clear that it would be immoral. As long as I’m acting freely and not being manipulated by someone, it’s my choice to do stupid things. And the value that we place on the freedom to choose may be stronger than the value that we place on protecting oneself through harm.
Harm to Others
Thus, moral arguments against drug use based purely on harm to oneself are not nearly as compelling today as they used to be. We’d need to show further that drugs create harm to other people. And, as Mill argues, when I infringe on the rules necessary for the protection of others, society “as the protector of all its members” must retaliate on me (ibid). While the moral duty to avoid harming oneself has weakened over time, the moral duty to avoid harming others is as strong today as it ever was in the past. When we survey the harm to others that drug use causes, the harm is considerable. We’ve seen earlier the kinds of damage that drug use can cause to one’s family and society at large. It is the source of many of society’s worst tragedies. Yes, drugs are linked with serious harm. But does that make use of drugs morally wrong for those who can properly control their use of recreational drugs?
Defenders of drug use argue that it is unfair for responsible people to be morally condemned for the behavior of the irresponsible. With other addictive behaviors—such as hoarding, gaming, or other compulsive past times—we don’t morally condemn them until they reach the point of causing harm to others. Similarly, we shouldn’t condemn people for their use of recreational drugs per se, but only when such use harms others. Thus, it seems wrong to create a moral rule against all recreational drug use merely because some drug abusers are harming others. If you use drugs to the point of harming others, then you are morally blameworthy; but if others aren’t harmed, then the act should be morally permissible. But, from the standpoint of traditional moral theories, this justification of drug use ignores a critical point about how moral rules operate. The same moral rules apply to me, even if they weren’t necessarily created for people like me. Morality is not so much about the potential harm of my actions, but, rather, it is about how much harm a type of behavior causes to society. Aquinas argues that “the line of natural rightness is not drawn to suit the accidental variety of the individual, but the tendencies common to the whole species” (Summa Contra Gentiles, 3.122). What is at issue is whether it is a common tendency within human nature for drug users to become addicts who seriously harm society. It seems that it is. I may personally defy the odds by being a harmless drug user, but that doesn’t matter if the bulk of drug users do harm others.
That is what traditional moral theorists like Aquinas say on the matter. But in more recent times, greater stress has been placed on the moral values of individual liberty and autonomy, as Mill does. While rules are important guidelines, what is morally required of me is to avoid harming others as I exercise my freedom. I am morally permitted to take drugs, but I must guard against the harmful effects of my conduct on others. I am not absolved of my responsibility if I naively think that I can resist drug addiction, but then fall into harmful habits that drag down everyone around me. I’m the bad guy in this case, and appeals to individual liberty will not absolve me of this. But, if I am one of the lucky ones who can defy the odds regarding drug addiction, then liberty is my defense. It remains to be seen whether this more recent view of individual liberty is substantially better than the traditional view of one-size-fits-all moral rules. This same issue arises again with rationales for and against drug legalization, which we turn to next.
PUBLIC POLICY ISSUES
Let’s set aside the moral issue of drug use and focus now on the public policy issue. Should some drugs be legalized? What kinds of penalties should be imposed on offenders? How aggressive should law enforcement be in catching drug users and dealers? The key issue regarding the legality of drugs concerns finding the right balance between people’s liberty to make personal choices without governmental interference, and the government’s responsibility to protect society from harms.
This in essence is John Stuart Mill’s position with drunkenness, and by extension, recreational drug use. That is, the drinker or drug user should have the freedom to become intoxicated, even if it is harmful to the person himself, as long as others are not also harmed. Mill writes that drunkenness “in ordinary cases, is not a fit subject for legislative interference” but that “the making himself drunk, in a person whom drunkenness excites to do harm to others, is a crime against others” (On Liberty, 5). The American Civil Liberties Union (ACLU) makes the same argument:
In trying to enforce the drug laws, the government violates the fundamental rights of privacy and personal autonomy that are guaranteed by our Constitution. The ACLU believes that unless they do harm to others, people should not be punished -- even if they do harm to themselves. [“Against Drug Prohibition”]
In short, for the staunchest defenders of personal freedom, the issue of drug illegality hinges on harm. According Mill and the ACLU, harm to oneself is irrelevant, and it is only harm to others that matters. Society today adopts much of this pro-liberty view, but not quite in its entirety. Yes, preventing to others is relevant to deciding the legal issue of drugs, but to at least some extent so too is preventing harm to the user himself. At least for now, the question of drug legalization hinges on balancing personal freedom against the harm from drugs, both to society and the user.
Balancing Freedom and Harm
To better understand how the laws need to balance between freedom and harm regarding drugs, consider this thought experiment. Imagine that there was a town called “Buzzville” in which scientists and the local government worked together to eliminate the harmful effects of drug use. Drug companies developed a new generation of recreational drugs that were not harmful to take, and were not addictive—at least no more so than craving some comfort food such as chocolate ice cream. The drugs were also designed so that they’d have no physiological effect when taken by people under 21 years old, thus completely eliminating the risk that the drug trade could pose to minors. If drug users found themselves in situations where they needed to sober up quickly, the mind-altering effects of these drugs could be immediately reversed by swallowing an antidote pill. Cars, heavy machinery and other potentially dangerous things were equipped with safety switches that would disable the unit if it detected the presence of drugs in the user’s breath or sweat. In short, all of the harms of drug use, both to society and the individual, were completely eliminated. Contrast this, now, with a rival town called “Overdoseville” that has only one recreational drug, but it’s as addictive and deadly as heroin. Virtually everyone in the town is addicted to the drug, and society can barely function. Citizens cannot hold down regular jobs, muggings and theft are commonplace, and life-expectancy is age 35 because of the high rate of overdose and health-related problems.
On the one hand, if an environment like Buzzville ever did become a reality, there would be no obvious grounds for legally prohibiting drugs. The freedom to use drugs would outweigh its harms, since all the harms have been eliminated. On the other hand, if an environment like Overdoesville existed, the harms from drug use would overwhelmingly outweigh the issue of freedom, and there would be compelling grounds to legally prohibit drugs. In fact, governments would be in severe violation of its social contract to keep society from collapsing into the state of nature. Our actual society is somewhere in between Buzzville and Overdoseville in terms of the freedom-harm balance of drug use. The critical question is how close must we get to Buzzville before we should legally permit drugs? There is at least some harm that we can tolerate if the benefits are great enough. A good example of this is our use of automobiles: we enjoy the mobility that our cars give us, but driving is one of the riskiest activities there is. Our society has judged that the personal benefits of automobile use outweigh their harms. Similar reasoning might apply with drug use: if the personal benefit that we derive from recreational drug use is great enough, we may be willing to accept some harms.
Some European countries have substantially relaxed their drug laws, and the Netherlands is a case in point. While recreational drugs technically remain illegal there, the Dutch have a policy of non-enforcement with “soft drugs” such as marijuana, and users are typically not prosecuted. At the same time, though, the Dutch strictly enforce laws prohibiting drug importation-exportation, and driving under the influence. The U.S., though, is not nearly as lenient as this, and our current assessment is that the harms of drugs outweigh the importance of our freedom to choose. Many morally-charged legal issues in the U.S. are left to individual states to resolve for themselves, such as assisted suicide and capital punishment. With recreational drugs, though, the Federal government has a strict anti-drug policy that umbrellas over the whole country and allows very little wiggle room for individual states.
U.S. Drug Laws
All countries have laws that classify and prohibit specific recreational drugs. In the U.S. this is accomplished with the Controlled Substances Act, first created in 1970, which defines five categories or “schedules” of drugs. The first schedule is the most restrictive and pertains to drugs that meet the following three criteria:
The remaining four categories differ based on their potential for abuse, their legitimate use in medical practice, and their addictive nature. The fifth schedule is the least restrictive and includes drugs that have minimal potential for abuse, accepted medical use, and a low risk of addiction. A good example is cough medicines with small amounts of codeine. In total, over 200 drugs are listed among the five schedules.
U.S. drug laws are created and administered both by individual states and the federal government. The federal government’s position on drugs is characterized by what it calls the “war on drugs,” a phrase coined in 1971 by President Richard Nixon who described drug abuse as "public enemy number one in the United States." The White House Office of National Drug Control Policy (ONDCP) is responsible for establishing “policies, priorities, and objectives for the Nation's drug control program” (www.whitehousedrugpolicy.gov). They identify possible points of disruption along the drug supply line, seek out drug dealers, establish treatment programs for drug users, and have ad campaigns that discourage drug use. One of their most memorable ad campaigns was one depicting an egg in a frying pan. A hot frying pan was displayed, and the narrator said “This is drugs.” Next, an egg placed in and began sizzling, and the narrator said “this is your brain on drugs. Any questions?” A particularly controversial ad campaign during the late 1990s involved secretly funding television networks to include anti-drug messages within the plot lines of some of the most popular primetime sit-coms and dramas. The ONDCP would examine the scripts beforehand and suggest changes that would qualify the network for funding. The ONDCP argued that these embedded messages were more effective than normal anti-drug public service commercials, but denied that they dictated any script changes in those programs to the show’s producers. They have since abandoned these ad campaigns. The ONDCP determines how much of the nation’s drug control efforts should go towards prevention, or treatment, or enforcement. Liberal administrations typically emphasize prevention and treatment more than conservative administrations do, as exemplified in the following statement from the ONDCP during the Obama administration:
Preventing drug use before it begins is a cost-effective, common-sense way to build safe and healthy communities Research on adolescent brain development shows the value of focusing prevention on young people: those who reach the age of 21 without developing an addiction are very unlikely to do so afterward. [National Drug Control Strategy, 2010]
The ONDCP also states that, for many addicts, “brief interventions are not sufficient to promote recovery,” and addiction treatment is effective “only if it is readily available and of high quality” (ibid).
Efforts to Relax Drug Laws
Amidst governmental efforts to reduce and punish drug use, various organizations advocate the legalization of at least some drugs. A notable example is Law Enforcement Against Prohibition (LEAP), which consists of police officers and government officials whose mission is “to reduce the multitude of unintended harmful consequences resulting from fighting the war on drugs and to lessen the incidence of death, disease, crime, and addiction by ultimately ending drug prohibition.” One of their advertising slogans is “Drug abuse is bad. The war on drugs is worse.”
The ACLU also takes this view. On balance, they maintain, more public harm is done through criminalization than would occur through a responsible system of decriminalization. It is costly and ineffective; it creates public health problems, gangsterism, an explosion in the number of nonviolent prisoners. It also as a devastating effect on African-American and Latino communities. “Black males have a 29% chance of serving time in prison at some point in their lives, Latino males have a 16% chance, and white males have a 4% chance,” and much of this is drug-related. The criminal justice system itself contributes to the racial disparity. The DEA has helped train police to profile highway travelers for potential drug couriers, which includes associating such activities with people of color. Minority women, they argue, are especially vulnerable to the drug war, who “are coerced into the drug trade by a boyfriend or husband, often play only a small role, but then receive the same harsh prison terms.” Supreme Court ruled that “public housing authorities could evict an entire family if someone in the household or a guest used drugs, even if the others knew nothing about it or tried to stop it.” In short, according the ACLU, “These are the grim realities of the War on Drugs. They are staged on a battlefield where the heaviest casualties are people of color. Instead of continuing these destructive policies that ultimately tear the fabric of our society, it is time to rethink and reassess the effectiveness and purpose of our current drug policies” (“Race and the War on Drugs”).
Other organizations support the strategy of harm reduction: recognizing the inevitability of drug use within society, as a public health policy we should attempt to lessen its harmful effects, rather than wage a war against it. Some harm reduction recommendations include reducing criminal penalties for marijuana use, using methadone to treat withdrawal symptoms from opiate addiction, needle exchange programs, and programs that test the safety of users’ drugs. Switzerland, one of several European countries with harm reduction initiatives, has a legalized heroin program whereby registered heroin addicts can go to government clinics twice a day for injections of the drug, along with required counseling. The program aims to reduce drug crimes, remove addicts from the street and make them more functioning members of society. The U.S. government consistently rejects the adoption of these types of harm reduction strategies.
Yet another strategy for drug-leniency is the legalization of marijuana for medical purposes. Some medical benefits associated with marijuana are alleviation of chronic pain, alleviation of nausea for chemotherapy patients and others with AIDS, tremor relief for people with multiple sclerosis, and reduction in epileptic seizures. The U.S. government’s position on this, though, is twofold. On the one hand, they acknowledge that there is some proven medical benefit to the chemical THC, the active ingredient in marijuana, and this drug is currently available by prescription in pill or patch form under the brand name “marinol”. On the other hand, though, they maintain that smoking marijuana is not an effective delivery system for THC since dosage cannot be controlled and marijuana smoke has dangerous secondary chemicals. Medical marijuana advocacy, they argue, is just a ploy to help legalize marijuana for recreational use.
State Legalization of Marijuana
State and Federal governments have had a long history of cooperation with drug laws and enforcement. But while the Federal government has held a hard line position, several states have recently enacted marijuana laws that conflict with Federal ones. In 1996 California voters passed a state-wide ballot initiative called the “Compassionate Use Act” which allows patients, with their physician’s approval, to possess or grow small amounts of marijuana for medical purposes. In the years following, 22 other states have legalized medical marijuana. But the U.S. government did not back down in their stand against such medical use, and twice the U.S. Supreme Court sided with the federal government against California. In the most recent of these, Gonzales v. Raich (2005), the Court stated that the federal government has a reasonable basis for believing that locally grown medical marijuana could be channeled into the illegal drug trade. However, one Supreme Court Justice, in a dissenting opinion, argued that California’s Compassionate Use Act is a justifiable social experiment to test the viability of medical marijuana within the confines of that particular state, without causing risk to the rest of the country.
Most recently, two states, Colorado and Washington, have enacted laws that legalize marijuana for recreational use. Like medical marijuana, this also places those two states in direct conflict with the U.S. government’s ban on any sale or possession of marijuana. However, in response to state legalization of marijuana for medical and recreational use, the Federal government indicated that it would change its priorities and not target individual users and even marijuana suppliers in these states where there is a “strong and effective regulatory system” (DOJ memo, August 19, 2013). The bottom line is that marijuana use and distribution is still illegal in Federal law, but the Federal government will not prosecute in those states where it is controlled responsibly.
U.S. Alcohol Laws
The manufacture, sale and consumption of alcoholic beverages are restricted in some measure in every country throughout the world. Some conservative Muslim countries have outright bans. Those that permit alcoholic beverages typically regulate their sale and distribution, and restrict consumers based on age, public usage, and motor vehicle operation. The story of alcohol prohibition in the U.S. is well-known. Under pressure from the temperance movement to reduce crime, poverty and disease from drinking, in 1919 Congress ratified the Eighteenth Amendment to the U.S. Constitution which prohibited the sale, manufacture, and transportation of alcoholic beverages nationwide. While consumption of alcohol was not banned, per se, the aim of the legislation was to severely curtail it by making such beverages difficult to obtain. The effect of the law, though, was catastrophic, with increases in drinking, bootlegging, violent crime, and law enforcement corruption. In a 1926 Senate committee hearing on the effects of prohibition, one witness stated the following:
Nothing is and nothing could be more certain, from all the evidence, than that prohibition is an unqualified failure and a colossal calamity to the Nation. Whatever promotes drunkenness and drug addiction and all forms of intemperance also promotes crime of every kind. We have the unimpeachable evidence of our senses that certainly more than half the crimes and misdemeanors perpetrated throughout the land and sensationally featured and headlined in the newspapers are crimes which are the result of prohibition. [Hiram Maxim, Senate Judiciary subcommittee on “The National Prohibition Law” April 5-24, 1926]
Prohibition ended in 1933 with the ratification of the Constitution’s twenty-first amendment, which repealed the eighteenth amendment. In spite of the end to prohibition, the twenty-first amendment grants broad powers to states regarding the distribution and sale of alcoholic beverages, and until 1966 Mississippi remained a completely dry state. Today 33 states delegate authority to local counties or municipalities to ban or restrict the alcohol sale.
Since the end of prohibition, all states follow what is called the three-tiered system of alcohol distribution: alcohol producers can sell only to licensed alcohol distributors, and, in turn, only the distributors can sell to licensed retailers. Producers such as breweries cannot sell directly to grocery retailers or to individual consumers. The system’s purpose is to provide limited access to alcoholic beverages and thus promote moderation in drinking. It also helps ensure that alcoholic beverages are not sold to minors, and it provides a simple method for alcohol tax collection. As a whole, the system helps set the price of alcoholic beverages at the right level: if the price is too cheap, then people will drink too much, and if too expensive they will bootleg. As one alcohol distributor puts it, “The best method of regulating alcohol does not necessarily come at the greatest convenience or lowest cost for individual consumers. However, it does ensure that consumers have appropriate access to alcohol at the lowest cost to society and with the least harm to its members” (www.mndistributors.com).
The three-tiered system has recently come under attack from thousands of small wineries and microbreweries throughout the country who feel that their businesses could be improved by selling directly to retailers and consumers, skipping entirely the restrictive distribution process. Ending the system, they argue, would result in increased jobs for the small businesses, and lower costs and greater variety for consumers. The system benefits no one but the alcohol distributors who want to retain a monopoly over the country’s supply of alcoholic beverages. Such critics of the three-tiered system have sued many states for discriminatory regulations: such states allow in-state wineries to distribute directly to retailers, but do not allow this for out-of-state wineries. These States in essence set aside the three-tiered system for their own wineries, but impose the three-tiered system on out of state ones. What would happen if we completely eliminated the three-tiered system that we have today, just as these small wineries would prefer? According to Pamela S. Erickson, a defender of the three-tiered system, we have only to look at the United Kingdom to see how alcoholic beverage deregulation has affected them. Over a four-decade period, the U.K. has incrementally deregulated alcohol to where it is available any time of day during the week in all varieties of bars and stores. It is now 70% more affordable and “the marketplace is flooded with cheap alcohol that has encouraged people to drink.” The social consequences of this deregulation, she argues, have been particularly bad:
Hospital admissions for alcohol liver disease and acute intoxication have doubled over just 10 years. Underage drinking rates are twice what ours are. Problems around bars and clubs are so severe in London that London has two buses equipped as field hospitals to take care of people who have been victims of alcohol-fueled violence or alcohol intoxication every weekend. [Pamela Erickson, U.S. House Judiciary subcommittee hearing on “Legal Issues Concerning State Alcohol Regulation,” March 18, 2010]
In the U.S., changing the three-tiered system is a multifaceted issue. It puts the interests of small wine producers against distributors, private industry against governmental regulation, and, most importantly, profit against public health.
ARGUMENTS PRO AND CONTRA
The Conservative Position
The conservative position on recreational drugs is that their use is both immoral and should remain illegal. The chief arguments for the conservative position are these.
1. Harm to society. There are serious harms to society from drug use, as we’ve already seen, including increases in murder, theft and prostitution. It is, in fact, one of the leading sources of crime in society. A criticism of this argument is that much of the harm associated with recreational drug use is the result of it being illegal to begin with. If drugs were made legal, the illegal drug trade and the evils associated with them would disappear, as happened with organized crime in the U.S. when alcohol prohibition was repealed in 1933. While some of the harder drugs would have other harms associated with them, social harm from softer drugs would likely be very minimal.
2. Harm to user’s health. Drugs adversely affect the user’s health, and we have an obligation to avoid unnecessary harm to our bodies, such as that which is caused by regular drug use. A criticism of this argument is that harm to oneself is often a byproduct of exercising one’s freedom, such as with playing dangerous sports or simply driving in a car. While it’s good to reduce harms to oneself when we can, eliminating all such harms would seriously curtail our freedom to act as we like and try out different hobbies, careers and lifestyles.
3. Decrease in user’s motivation. Drugs adversely affect the user’s motivation to be a productive citizen. We have an obligation to ourselves and society to develop our talents and be productive citizens in some way. But the pleasures of drug use, even with less addictive ones, often eclipse the ordinary sense of enjoyment and satisfaction that we might get from learning new skills and creating a better society. A criticism of this argument is that the same rationale applies to other recreational diversions, such as watching mindless TV sitcoms that waste huge amounts of time and sap our motivation to do something more useful. We all can’t be obsessively high-energy and productive people, and there is something to be said for living a relaxed and laidback life, if that’s what we so choose.
The Liberal Position
The liberal position on recreational drugs is that the less harmful and addictive ones are morally permissible and should be legalized. Here are the main arguments for that position.
1. Autonomy: drug use should be a matter for individuals to decide for themselves, so long as their use of drugs does not negatively impact others. In a free society, the presumption is that individuals should be at liberty to make their own choices, even when their decisions are not always the smartest or safest ones for themselves. The only restriction should be whether the individual’s actions cause significant harm to others. The use of recreational drugs is a case in point. A criticism of this argument is that most recreational drug use does have a serious negative impact on society. Marijuana and perhaps a few others might be exceptions, but the most addictive ones result in great harms. Further, addiction to drugs compromises a person ability to make free choices, and thus undermines autonomy.
2. Pleasure: recreational drugs provide a great source of pleasure to people, and this counterbalances the harm to themselves. Many of the decisions that we make in life involve balancing pleasures with potential pains. If the pleasure is great enough, we will accept the risk. So too with recreational drugs: while users might be at risk of some harm, they may accept this in exchange for the pleasure benefits. A criticism of this argument is that few peoples’ lives are completely isolated, and there are almost always family members who are secondary victims to the harm that drug users bring on themselves. Children are particularly vulnerable to this. Because of drug use, parents might have less money for their children’s needs and be less motivated to focus on their children’s wellbeing than their own happiness. Even drug-using college students with no kids might negatively impact their future careers by squandering their present educational opportunities, which ultimately affects their future families.
3. Cultural tradition: the use of mind-altering substances has been an important part of human culture. This is particularly evident with the role that alcohol has played throughout history: it pacifies us when sad, heightens enjoyment when happy, and is incorporated into many of our celebrations. While alcohol is the poster-child for the value we place on mind-altering substances, recreational drugs can and do perform that same function. A criticism of this argument is that society needs to draw a line somewhere regarding the various mind-altering substances that it will embrace as acceptable parts of cultural tradition. Heroin and meth, for example, will never gain acceptance because of how addictive and harmful they are. While other mind-altering drugs are similar to alcohol in their effects, they nevertheless don’t have a long history of acceptance, and society appears reluctant to move the line of acceptance beyond alcohol.
A Moderate Compromise
There’s a famous expression that “I may not like what you say, but I will defend your right to say it.” To some extent this intuition applies to how we behave as well as what we say. We may not always like the choices that people make in their lives, but we should acknowledge a person’s freedom to make those choices. We already grant this when it comes to alcohol use. So why not with other drugs too? There are good reasons for society to restrict the use of highly addictive drugs because of the harm they cause to society (independent of the harm that results from the illegal drug trade itself). If there is any room for compromise, it would be with softer drugs like marijuana. Even for these, though, full legalization would be too dramatic, and, instead, a first step might be to replace criminal penalties with civil ones, such as a fine similar to a traffic offense. Several U.S. cities have already considered taking this approach.
2. AN ARGUMENT FOR DRUG LEGALIZATION
American Civil Liberties Union
Founded in 1917, the American Civil Liberties Union (ACLU) has as its mission to "defend and preserve the individual rights and liberties guaranteed to every person ... by the Constitution and laws of the United States." The ACLU takes stands on many morally controversial issues and often enters into legal battles in those areas. Among its positions, the ACLU supports abortion rights, gay rights and affirmative action. It also opposes capital punishment and government sponsored religious symbols or activities. On the issue of drug laws, the ACLU maintains that recreational drug use should be decriminalized – including marijuana, cocaine and heroin. In the selections below, they argue that the question hinges on the harm that drugs pose to others, not on the harm that it poses to users themselves. On balance, they maintain, more public harm is done through criminalization than would occur through a responsible system of decriminalization. It is costly and ineffective; it creates public health problems, gangsterism, an explosion in the number of nonviolent prisoners. It also as a devastating effect on African- American and Latino communities.
AGAINST DRUG PROHIBITION
More and more ordinary people, elected officials, newspaper columnists, economists, doctors, judges and even the Surgeon General of the United States are concluding that the effects of our drug control policy are at least as harmful as the effects of drugs themselves.
After decades of criminal prohibition and intensive law enforcement efforts to rid the country of illegal drugs, violent traffickers still endanger life in our cities, a steady stream of drug offenders still pours into our jails and prisons, and tons of cocaine, heroin and marijuana still cross our borders unimpeded.
The American Civil Liberties Union (ACLU) opposes criminal prohibition of drugs. Not only is prohibition a proven failure as a drug control strategy, but it subjects otherwise law-abiding citizens to arrest, prosecution and imprisonment for what they do in private. In trying to enforce the drug laws, the government violates the fundamental rights of privacy and personal autonomy that are guaranteed by our Constitution. The ACLU believes that unless they do harm to others, people should not be punished -- even if they do harm to themselves. There are better ways to control drug use, ways that will ultimately lead to a healthier, freer and less crime-ridden society.
Currently Illegal Drugs have not Always been Illegal
During the Civil War, morphine (an opium derivative and cousin of heroin) was found to have pain-killing properties and soon became the main ingredient in several patent medicines. In the late 19th century, marijuana and cocaine were put to various medicinal uses -- marijuana to treat migraines, rheumatism and insomnia, and cocaine to treat sinusitis, hay fever and chronic fatigue. All of these drugs were also used recreationally, and cocaine, in particular, was a common ingredient in wines and soda pop -- including the popular Coca Cola.
At the turn of the century, many drugs were made illegal when a mood of temperance swept the nation. In 1914, Congress passed the Harrison Act, banning opiates and cocaine. Alcohol prohibition quickly followed, and by 1918 the U.S. was officially a "dry" nation. That did not mean, however, an end to drug use. It meant that, suddenly, people were arrested and jailed for doing what they had previously done without government interference. Prohibition also meant the emergence of a black market, operated by criminals and marked by violence.
In 1933, because of concern over widespread organized crime, police corruption and violence, the public demanded repeal of alcohol prohibition and the return of regulatory power to the states. Most states immediately replaced criminal bans with laws regulating the quality, potency and commercial sale of alcohol; as a result, the harms associated with alcohol prohibition disappeared. Meanwhile, federal prohibition of heroin and cocaine remained, and with passage of the Marijuana Stamp Act in 1937 marijuana was prohibited as well. Federal drug policy has remained strictly prohibitionist to this day.
Decades of Drug Prohibition: A History of Failure
Criminal prohibition, the centerpiece of U.S. drug policy, has failed miserably. Since 1981, tax dollars to the tune of $150 billion have been spent trying to prevent Columbian cocaine, Burmese heroin and Jamaican marijuana from penetrating our borders. Yet the evidence is that for every ton seized, hundreds more get through. Hundreds of thousands of otherwise law abiding people have been arrested and jailed for drug possession. Between 1968 and 1992, the annual number of drug-related arrests increased from 200,000 to over 1.2 million. One-third of those were marijuana arrests, most for mere possession.
The best evidence of prohibition's failure is the government's current war on drugs. This war, instead of employing a strategy of prevention, research, education and social programs designed to address problems such as permanent poverty, long term unemployment and deteriorating living conditions in our inner cities, has employed a strategy of law enforcement. While this military approach continues to devour billions of tax dollars and sends tens of thousands of people to prison, illegal drug trafficking thrives, violence escalates and drug abuse continues to debilitate lives. Compounding these problems is the largely unchecked spread of the AIDS virus among drug-users, their sexual partners and their offspring.
Those who benefit the most from prohibition are organized crime barons, who derive an estimated $10 to $50 billion a year from the illegal drug trade. Indeed, the criminal drug laws protect drug traffickers from taxation, regulation and quality control. Those laws also support artificially high prices and assure that commercial disputes among drug dealers and their customers will be settled not in courts of law, but with automatic weapons in the streets.
Drug Prohibition is a Public Health Menace
Drug prohibition promises a healthier society by denying people the opportunity to become drug users and, possibly, addicts. The reality of prohibition belies that promise.
No quality control. When drugs are illegal, the government cannot enact standards of quality, purity or potency. Consequently, street drugs are often contaminated or extremely potent, causing disease and sometimes death to those who use them.
Dirty needles. Unsterilized needles are known to transmit HIV among intravenous drug users. Yet drug users share needles because laws prohibiting possession of drug paraphernalia have made needles a scarce commodity. These laws, then, actually promote epidemic disease and death. In New York City, more than 60 percent of intravenous drug users are HIV positive. By contrast, the figure is less than one percent in Liverpool, England, where clean needles are easily available.
Scarce treatment resources. The allocation of vast sums of money to law enforcement diminishes the funds available for drug education, preventive social programs and treatment. As crack use rose during the late 1980s, millions of dollars were spent on street-level drug enforcement and on jailing tens of thousands of low level offenders, while only a handful of public drug treatment slots were created. An especially needy group -- low-income pregnant women who abused crack -- often had no place to go at all because Medicaid would not reimburse providers. Instead, the government prosecuted and jailed such women without regard to the negative consequences for their children.
Drug Prohibition creates more Problems than it Solves
Drug prohibition has not only failed to curb or reduce the harmful effects of drug use, it has created other serious social problems.
Caught in the crossfire. In the same way that alcohol prohibition fueled violent gangsterism in the 1920s, today's drug prohibition has spawned a culture of drive-by shootings and other gun-related crimes. And just as most of the 1920s violence was not committed by people who were drunk, most of the drug-related violence today is not committed by people who are high on drugs. The killings, then and now, are based on rivalries: Al Capone ordered the executions of rival bootleggers, and drug dealers kill their rivals today. A 1989 government study of all 193 "cocaine-related" homicides in New York City found that 87 percent grew out of rivalries and disagreements related to doing business in an illegal market. In only one case was the perpetrator actually under the influence of cocaine.
A Nation of Jailers. The "lock 'em up" mentality of the war on drugs has burdened our criminal justice system to the breaking point. Today, drug-law enforcement consumes more than half of all police resources nationwide, resources that could be better spent fighting violent crimes like rape, assault and robbery.
The recent steep climb in our incarceration rate has made the U.S. the world's leading jailer, with a prison population that now exceeds one million people, compared to approximately 200,000 in 1970. Nonviolent drug offenders make up 58 percent of the federal prison population, a population that is extremely costly to maintain. In 1990, the states alone paid $12 billion, or $16,000 per prisoner. While drug imprisonments are a leading cause of rising local tax burdens, they have neither stopped the sale and use of drugs nor enhanced public safety.
Not Drug Free -- Just Less Free. We now have what some constitutional scholars call "the drug exception to the Bill of Rights." Random drug testing without probable cause, the militarization of drug law enforcement, heightened wiretapping and other surveillance, the enactment of vaguely worded loitering laws and curfews, forfeiture of people's homes and assets, excessive and mandatory prison terms -- these practices and more have eroded the constitutional rights of all Americans.
Prohibition is a Destructive Force in Inner City Communities
Inner city communities suffer most from both the problem of drug abuse and the consequences of drug prohibition.
Although the rates of drug use among white and non-white Americans are similar, African Americans and other racial minorities are arrested and imprisoned at higher rates. For example, according to government estimates only 12 percent of drug users are black, but nearly 40 percent of those arrested for drug offenses are black. Nationwide, one-quarter of all young African American men are under some form of criminal justice supervision, mostly for drug offenses. This phenomenon has had a devastating social impact in minority communities. Moreover, the abuse of drugs, including alcohol, has more dire consequences in impoverished communities where good treatment programs are least available.
Finally, turf battles and commercial disputes among competing drug enterprises, as well as police responses to those conflicts, occur disproportionately in poor communities, making our inner cities war zones and their residents the war's primary casualties.
Drugs are Here to Stay -- Let's Reduce their Harm
The universality of drug use throughout human history has led some experts to conclude that the desire to alter consciousness, for whatever reasons, is a basic human drive. People in almost all cultures, in every era, have used psychoactive drugs. Native South Americans take coca-breaks the way we, in this country, take coffee-breaks. Native North Americans use peyote and tobacco in their religious ceremonies the way Europeans use wine. Alcohol is the drug of choice in Europe, the U.S. and Canada, while many Muslim countries tolerate the use of opium and marijuana.
A "drug free America" is not a realistic goal, and by criminally banning psychoactive drugs the government has ceded all control of potentially dangerous substances to criminals. Instead of trying to stamp out all drug use, our government should focus on reducing drug abuse and prohibition-generated crime. This requires a fundamental change in public policy: repeal of criminal prohibition and the creation of a reasonable regulatory system.
Ending Prohibition Would not Necessarily Increase Drug Abuse
While it is impossible to predict exactly how drug use patterns would change under a system of regulated manufacture and distribution, the iron rules of prohibition are that 1) illegal markets are controlled by producers, not consumers, and 2) prohibition fosters the sale and consumption of more potent and dangerous forms of drugs.
During alcohol prohibition in the 1920s, bootleggers marketed small bottles of 100-plus proof liquor because they were easier to conceal than were large, unwieldy kegs of beer. The result: Consumption of beer and wine went down while consumption of hard liquor went up. Similarly, contemporary drug smugglers' preference for powdered cocaine over bulky, pungent coca leaves encourages use of the most potent and dangerous cocaine products. In contrast, under legal conditions, consumers -- most of whom do not wish to harm themselves -- play a role in determining the potency of marketed products, as indicated by the popularity of today's light beers, wine coolers and decaffeinated coffees. Once alcohol prohibition was repealed, consumption increased somewhat, but the rate of liver cirrhosis went down because people tended to choose beer and wine over the more potent, distilled spirits previously promoted by bootleggers. So, even though the number of drinkers went up, the health risks of drinking went down. The same dynamic would most likely occur with drug legalization: some increase in drug use, but a decrease in drug abuse.
Another factor to consider is the lure of forbidden fruit. For young people, who are often attracted to taboos, legal drugs might be less tempting than they are now. That has been the experience of The Netherlands: After the Dutch government decriminalized marijuana in 1976, allowing it to be sold and consumed openly in small amounts, usage steadily declined -- particularly among teenagers and young adults. Prior to decriminalization, 10 percent of Dutch 17- and 18-year-olds used marijuana. By 1985, that figure had dropped to 6.5 percent.
Would drugs be more available once prohibition is repealed? It is hard to imagine drugs being more available than they are today. Despite efforts to stem their flow, drugs are accessible to anyone who wants them. In a recent government-sponsored survey of high school seniors, 55 percent said it would be "easy" for them to obtain cocaine, and 85 percent said it would be "easy" for them to obtain marijuana. In our inner-cities, access to drugs is especially easy, and the risk of arrest has proven to have a negligible deterrent effect. What would change under decriminalization is not so much drug availability as the conditions under which drugs would be available. Without prohibition, providing help to drug abusers who wanted to kick their habits would be easier because the money now being squandered on law enforcement could be used for preventive social programs and treatment.
What the United States would Look Like after Repeal
Some people, hearing the words "drug legalization," imagine pushers on street corners passing out cocaine to anyone -- even children. But that is what exists today under prohibition. Consider the legal drugs, alcohol and tobacco: Their potency, time and place of sale and purchasing age limits are set by law. Similarly, warning labels are required on medicinal drugs, and some of these are available by prescription only.
After federal alcohol prohibition was repealed, each state developed its own system for regulating the distribution and sale of alcoholic beverages. The same could occur with currently illegal drugs. For example, states could create different regulations for marijuana, heroin and cocaine.
Ending prohibition is not a panacea. It will not by itself end drug abuse or eliminate violence. Nor will it bring about the social and economic revitalization of our inner cities. However, ending prohibition would bring one very significant benefit: It would sever the connection between drugs and crime that today blights so many lives and communities. In the long run, ending prohibition could foster the redirection of public resources toward social development, legitimate economic opportunities and effective treatment, thus enhancing the safety, health and well-being of the entire society.
RACE AND THE WAR ON DRUGS
With our history of racial injustice, the United States cannot and should not tolerate laws that systematically target communities of color. Yet, this is precisely the outcome of the current War on Drugs. Even though drugs remain as available as ever, we are continuing policies that have a devastating effect on African- American and Latino communities. The time has come to reverse course in a disastrous, ineffective, and racist war on drugs.
Who’s Who in the Criminal Justice System.
Today, black males have a 29% chance of serving time in prison at some point in their lives, Latino males have a 16% chance, and white males have a 4% chance.1 Even though whites outnumber blacks five to one and both groups use and sell drugs at similar rates,2 African-Americans comprise:
• 35% of those arrested for drug possession;
• 55% of those convicted for drug possession; and
• 74% of those imprisoned for drug possession.3
This skewed enforcement of drug laws has a devastating impact. One in three black men between the ages of 20 and 29 are currently either on probation, parole, or in prison. One in five black men have been convicted of a felony. In seven states, between 80% and 90% of prisoners serving time for drug offenses are black.4
The statistics for the Latino population are equally disturbing. Latinos comprise 12.5% of the population5 and use and sell drugs less than whites,6 yet they accounted for 46% of those charged with a federal drug offense in 1999.7 How Did We Get Here?
Historically, people of color have been a primary target of anti-drug policies and rhetoric. Beginning in the early 1900s, drug warriors invoked the image of black men high on drugs to pass the nation’s earliest drug laws.8 By 1930, 16 western states prohibited marijuana as a way to target the growing Mexican community that had flooded the U.S. job market.9 In 1951, the Boggs Act established stringent narcotics penalties in response to the threat of “communist opium” from Asia.10 In 1973, with a mandate from the public to “get tough on crime,” New York enacted the Rockefeller drug laws, requiring severe prison terms for drug crimes regardless of circumstance. A quarter century later, 94% of all people in prison in New York state on drug charges are black or Latino.11
By the 1980s, the link between minorities, drugs, and crime was firmly cemented in American rhetoric and embodied in President Reagan’s revamped “War on Drugs.” Media hysteria about an unsubstantiated crack epidemic amongst blacks prompted Congress to pass draconian mandatory minimum sentencing laws against crack cocaine. Penalties against powder cocaine – the same drug but typically associated with white users – remained relatively light. Even though most crack users and dealers are white, this “crack equals black” formula distorted prosecutions. By 2001, over 80% of federal crack defendants were black.12
• Possession of 500 grams of powder cocaine results in a 5-year prison term.
• Possession of 5 grams of crack cocaine results in a 5-year prison term.13
Law enforcement practices fuel racial inequalities in the criminal justice system. Over the years, the Drug Enforcement Administration (DEA) has helped train police to profile highway travelers for potential drug couriers.14 This profile is based on associating people of color with crime, creating a phenomenon known as “driving while black or brown.” In Maryland, for instance, although only 21% of drivers along a stretch of Interstate 95 are minorities including blacks, Latinos, Asians, and others, 80% of those who are pulled over and searched are people of color.15 In California, between 80% and 90% of all motorists arrested by law enforcement officials since 1991 have been members of minority groups.16 These statistics are not the product of chance, but of purpose and can be found throughout the country.
But racial profiling is not just limited to our highways. In 1998, 51,000 people were selected for body searches ranging from hand frisks to strip-searches by immigration officials at customs checkpoints. 96% of those searches yielded nothing; twothirds of the people selected were black or Latino.17
On the streets of our cities, young minorities are routinely stopped for Terry frisks, named after a Supreme Court ruling stating that police do not need a warrant or even probable cause to stop and search individuals as long as there exists a reasonable cause for suspicion. In New York City, between 1998 and 1999, the police recorded 45,000 such stops, 35,000 of which yielded nothing. Two-thirds of the people selected were black and Latino.18
A very clear incentive exists for police departments to engage in racial profiling. Civil asset forfeiture laws allow police to seize and sell property without proving its guilt and keep a portion of the assets for themselves. In fact, police departments are now dependent on forfeiture revenues in order to match funds for federal grants and for regular operational costs, including the salaries of the very police officers that are responsible for the seizures.19 By targeting minority communities whose voices and political power are marginalized, law enforcement agencies can exploit the power of forfeiture without many Americans ever learning of the practice.
In addition to these practices, overzealous local prosecutors and judges with minimal discretion in the sentencing process exacerbate the situation. Texas, for instance, has seen many racial exploits related to the War on Drugs. In the rural town of Tulia in 1999, 12% of the adult male African-American population was arrested on drug charges based solely on the word of an undercover officer who offered no hard evidence. In 2000, 15% of young black males in the town of Hearne were arrested in a drug sweep based solely on the word of an informant who had agreed to implicate targeted individuals. All of these men were innocent. Just one year later, dozens of Mexicans and Mexican-Americans were arrested in what has been dubbed as the “Dallas Sheetrock Scandal.” Tests later showed that some of drugs in question were really ground-up sheet-rock, planted by informants.20
Women and Children
Women as mothers, girlfriends, wives, and individuals are especially vulnerable to drug war injustices. Many women are coerced into the drug trade by a boyfriend or husband, often play only a small role, but then receive the same harsh prison terms. Between 1986 and 1996, the number of women incarcerated for drug offenses increased 888%.21 Overwhelmingly, most of these women come from poor backgrounds: 80% of imprisoned women report incomes of less than $2000 in the year before the arrest.22
Minority women are especially targeted by drug war policies while pregnant or parenting. Black women during pregnancy, for instance, are 10 times more likely to be drug tested or reported to child welfare agencies than white women. Before this practice was struck down by the Supreme Court, one public hospital in South Carolina selectively drug tested pregnant black women and reported positive tests to police who then arrested them, forcing many to give birth in shackles before taking them to jail.23
The effects drug war policies have on children are devastating. Today, 1.6 million children have a father in prison and 200,000 children have a mother in prison. Black children are nearly 9 times more likely, and Latino children 3 times more likely to have a parent in prison than white children.24 Children, too, are trapped within the criminal justice system. Though youth of all races use and sell drugs at similar rates, minority youth represent 60% to 75% of drug arrests today. In fact, black youth are incarcerated 25 times the rate of white youth; Latino youth, 13 times the rate of their white counterparts.25
The War on Drugs does more than fill our prisons. Drug war policies permeate every facet of life, including health, welfare, education, housing, and voting. The constant emphasis on punishment exacts a high price from minority populations and traps them in a vicious cycle of incarceration, addiction, and helplessness with little compassion or assistance from the government. Today, HIV/AIDS is one of the leading causes of death for blacks and Latinos aged 25 to 44. Nearly half of AIDS cases among blacks and Latinos are related to dirty needles,26 while 59% of AIDS cases in children result from a parent using an infected needle.27 Instead of implementing harm reduction policies like needle exchanges that prevent the spread of AIDS, the federal government blocks funding for such measures and states like New Jersey arrest anyone attempting to provide clean injection equipment.
In 2000, government estimates placed the number of drug users requiring treatment at 4.7 million but only 16.6% of this group received treatment.28 Over the past 8 years, treatment has comprised barely 20% of the total drug control budget, while domestic law enforcement represents more than 50% of the budget.29
In areas of welfare and education, punitive drug war policies deny government aid to those looking to improve their lives after a drug conviction. The 1996 Welfare Reform Act imposed a lifetime ban on welfare assistance to anyone convicted of a drug felony. This ban has endangered the ability of low-income parents and their children to meet their basic needs, including shelter, food, job training, education, and drug treatment.30 The 1998 amendments to the Higher Education Act deny or delay federal financial aid to anyone convicted of a drug offense. Meanwhile, there are five times as many black men in prison as in four-year colleges and universities. As with the Welfare Reform Act, no other offense, not even murder or rape, results in the loss of aid.31
In 2002, the Supreme Court ruled that public housing authorities could evict an entire family if someone in the household or a guest used drugs, even if the others knew nothing about it or tried to stop it.32 These innocent people can now lose their homes as well as their housing assistance, effectively rendering them homeless in communities where affordable housing is scarce.
In most states, the very people affected by these policies are the ones without a political voice. Due to felony disenfranchisement laws, an individual who is convicted of a felony can lose his or her right to vote, and in some states, the disenfranchisement is permanent. Across the nation, 13% of all adult black men have lost their right to vote, with rates reaching a staggering 40% of adult black men in some states.33
These are the grim realities of the War on Drugs. They are staged on a battlefield where the heaviest casualties are people of color. Instead of continuing these destructive policies that ultimately tear the fabric of our society, it is time to rethink and reassess the effectiveness and purpose of our current drug policies.
For notes to this article and hyperlinked sources, see “publications” at http://www.aclu.org/drugpolicy/
Source: ACLU, “Against Drug Prohibition” (1995), “Race and the War on Drugs” (2003), reprinted by permission of the American Civil Liberties Union.
QUESTIONS FOR REVIEW
Please answer all of the following questions for review.
1. Explain the difference between physical and psychological addiction.
2. What is the modified Stoic view of drug use?
3. What is Kant’s view on Drunkenness?
4. What is Mill’s criticism of “duties to oneself”?
5. The section on “Harm to Others” discusses whether it is wrong to create a moral rule against all recreational drug use merely because some drug abusers are harming others. What is the position of traditional moral theories on this?
6. What is the ACLU’s position on drug legalization?
7. Explain the position on drugs called “harm reduction.”
8. What is the Federal government’s position on state legalization of marijuana for medical and recreational purposes?
9. What are the three conservative arguments against drug use?
10. What are the three liberal arguments in favor of drug use?
11. How, according to the ACLU does drug prohibition create more problems than it solves?
12. How, according to the ACLU is drug prohibition is a destructive force in inner city communities?
13. According to the ACLU, what the United States would look like after drug repeal?
14. What, according to the ACLU are some of the collateral consequences of the war on drugs?
QUESTIONS FOR ANALYSIS
Please select only one question for analysis from those below and answer it.
1. Discuss the distinction between the moral model and disease model of addiction, and which of these seems most correct to you.
2. Discuss the distinction between the Epicurean and Stoic views on the morality of recreational drugs, and which of these seems right to you.
3. In the section on “Harm to Oneself” discuss the distinction between Pufendorf’s and Mill’s rival conceptions of duties to oneself, and which of these seems right to you.
4. The section on “Harm to Others” discusses whether it is wrong to create a moral rule against all recreational drug use merely because some drug abusers are harming others. Discuss what is at issue here and whether the traditional or more recent position seems most correct to you.
5. Discuss some of the efforts to relax drug laws, the reaction of the U.S. government against them, and which of the two sides you think is right.