Should Recreational Drug use be Decriminalised? (Part One)

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This series of posts will look at a perennially popular topic: should drug use be decriminalised? No doubt, this is an issue on which many people have already made up their minds. But there must still be some who are unsure. If so, this series should help them to wade through (some!) of murky concepts and arguments associated with drug decriminalisation.

As always with this blog, I’ll be using a particular set of writings to assist me in addressing this topic. In this instance, it’ll be the book The Legalization of Drugs by Douglas Husak and Peter de Marneffe. This book forms part of the Cambridge University Press For and Against series. Unsurprisingly, this means the book consists of two competing views on the issue of drug decriminalisation. On the one hand, we have Husak’s pro-decriminalisation view, and on the other we have de Marneffe’s anti-legalisation view. I hope to cover both over the next few posts.

In this first post, I’ll kick things off by looking at how Husak frames the whole debate. As he makes clear from the opening chapter, he wants to argue for a particularly narrow conclusion, which we may call Husak’s View:

Husak’s View: We ought to decriminalise the recreational use of drugs.

On the face of it, Husak’s view might seem pretty straightforward, but philosopher’s are rarely that. Husak’s View contains a number of tricky concepts, and in order to best understand his pro-dcriminalisation argument, we need to understand those concepts. Thus, in the remainder of this post, we’ll look at three conceptual issues. First, we’ll try to explain what decriminalisation is. Second, we’ll try to explain what decriminalisation is not. And third, we’ll consider what we mean by ‘drugs’ and the ‘recreational use’ thereof.


1. What is Decriminalisation?
A while back — back when I was writing about the decriminalisation of incest — I tried to explain what it meant to decriminalise something. When I wrote that post I was relying largely on my own reasoning about the topic. Consequently, I was somewhat relieved to see that Husak adopted a definition of decriminalisation which was basically in tune with my own:

Decriminalisation: An activity or state of affairs is decriminalised if, and only if, one is not eligible for punishment by the state as a result of engaging in that activity, or being found in that state of affairs. This can be achieved in one of two ways:

• De Jure Decriminalisation: The statute or law that criminalises the activity or state of affairs is repealed.
• De Facto Decriminalisation: The statute or law that criminalises the activity or state of affairs is no longer enforced.

De facto decriminalisation is quite common, but de jure is clearly more desirable since, as long the crime remains on the statute book, there is always a danger, however remote, that some zealous official will try to enforce it. But leaving the de jure/de facto distinction to the side, there are several interesting features of this definition of decriminalisation.

First, note how it refers to both “activities” and “states of affairs” being decriminalised. You might find this unusual since most crimes that you care to think of are conduct based. For example, the crimes of theft or murder require some action on the part of the accused. Isn’t that true of all offences? Not quite — although there is some debate about this. Curiously, being found in a particular state of affairs, irrespective of how you got there, is sometimes enough to make one eligible for criminal sanction. And drug possession offences are the classic example of this: merely being found with drugs on your person is sometimes enough to be found guilty of a crime.

A second interesting feature of this definition is that it speaks of “eligibility for punishment” rather than punishment itself. Why is this? Very simply, not every crime is detected and not every crime is prosecuted. Consequently, not every crime is punished. But just because one isn’t punished does not imply that one didn’t commit a crime or that a particular activity/state of affairs isn’t criminalised. Eligibility for punishment is enough for that.

But that brings us to a third issue: what exactly is a punishment? Husak explicitly raises the example of drug treatment here. A recent trend in the so-called “War on Drugs” is that drug offenders are offered a choice between undergoing drug treatment and going to jail. Now, clearly, going to jail is a punishment, but does that mean undergoing treatment is not? Husak thinks its hard to say. Treatment under these particular conditions may simply be a different type of punishment. Not an alternative to punishment. Lack of clarity on punishment can make it difficult to decide whether something has been decriminalised. (Refer back to my series on consequentialist theories of punishment for more on the definition of “punishment”).

That leads, nicely, to a fourth issue, one that is not directly about the definition of decriminalisation itself, but is about the complexity of decriminalisation. Ask yourself: is driving decriminalised? How about practicing medicine or law? On first glance, most people tend to think the answer is “yes”: it isn’t illegal to drive a car or to practice medicine or to hang up one’s shingle as a lawyer. But that’s only half the picture. In reality, each of these things is a criminal offence under particular conditions. One cannot legally drive without a licence, or practice medicine or law without being properly credentialed. To do any one of these things would be to open oneself up to possible criminal sanction.

This fourth issue reveals something important about “decriminalisation” rhetoric, something that is not always flagged-up in conventionally debates about the topic: to decriminalise something is not to render it always and everywhere permissible.


2. What Decriminalisation is Not
The complexity of decriminalisation is underscored by considering the kinds of policies and laws with which Husak’s View is consistent. As he himself points out, decriminalising the recreational use of drugs would be consistent with the following four things:

Other Anti-Drug Public Policies: Just because the state no longer punishes recreational drug use does not imply that the state must support it. The state could still introduce policies that discourage drug use. For instance, as with smoking, the state could impose high taxation those who use drugs.

Private Anti-Drug Policies: Just because the state no longer punishes recreational drug use does not mean that private corporations or entities cannot prohibit drug use. For instance, companies could still impose random drug testing on their employees, and fire those found to be using. That might be quite “punitive”, but it would not be the same thing as state-sanctioned punishment.

Criminalisation of Drug Use in Particular Contexts: Just because criminal sanction is removed from some forms of drug use does not mean that it need be removed from all forms in all contexts. For instance, as with alcohol consumption, the state could make it a criminal offence to drive while under the influence of a narcotic substance.

Criminalisation of Non-Use Drug-related Activities: Finally, just because the state no longer punishes drug users, it does not follow that all those involved in the distribution and supply of drugs are to be free from criminal sanction. Whether the state choose to facilitate and licence those activities is another question.

To be clear, Husak is not advocating any one of these things. Indeed, I get the impression he would be opposed to most of them. His only point is that his view is consistent with them.

Although I accept Husak’s point on this matter, I find it slightly disingenuous. Yes, of course, his view is not inconsistent with the four things outlined above. Not formally inconsistent at any rate. Nevertheless, removing criminal sanction is an important signal. Arguably, once you do this you signal some kind of tolerance or acceptance of drug use, which may make it more difficult to argue for other restrictive policies. Furthermore, at least one of the pro-decriminalisation arguments that Husak subsequently offers suggests that there is some positive value to recreational drug use. If we accept this, then the grip that other restrictive policies have on our psyches may be weakened.


3. Drugs and Recreational Use
Now that we are a little clearer about the nature of decriminalisation, we can focus on the other aspects of Husak’s View, namely: the activity he thinks ought to be decriminalised. This is the “recreational use of drugs”. There are two questions to ask about this activity. First, what is a “drug”? And second, what is “recreational use”?

Looking to the first question, Husak suggests that most definitions of “drug” are inadequate. The definition most commonly used in statutes prohibiting drug use (according to Husak) is “any substance other than food which by its chemical nature affects the structure or function of the living organism”. The problem is that this is hopelessly over-inclusive, potentially covering caffeine, alcohol, and vitamin supplements among other things. To avoid the over-inclusiveness problem, people sometimes appeal to the distinction between licit and illicit drugs. But this distinction presupposes that some substances ought to be illegal, which is a presumption we wish to avoid in this debate.

So, in the end, it seems best to avoid all definitions and focus on specific kinds of drug, like marijuana, cocaine and heroin (to name but a few). But this would demand a very fine-grained level of analysis (with different arguments offered for and against each substance) and Husak is reluctant to do this since his pro-decriminalisation argument is intended to cover many different substances. Consequently, he perseveres with the general term “drug” on the grounds that, for all its imperfections, we still kinda-sorta know what we’re talking about when talking about drug decriminalisation. Nevertheless, he acknowledges that his arguments will be most plausible when applied to marijuana. This is significant since de Marneffe’s anti-legalisation argument works with heroin predominantly in mind.

Turning to the second question, Husak defines recreational use as: use that is intended to seek some positive psychological state. It is important not to make the mistake of referring to recreational and non-recreational drugs. Such references presume that there are different categories of substance, when in reality there are only different categories of use. The same substance can be used for both recreational and non-recreational purposes. Further, Husak suggests that the distinction between medical and recreational use is not a particularly useful one. This is important since the medical use of some drugs has been decriminalised in different parts of the world, while the recreational use has not. Husak doesn’t think there are strong grounds for this distinction. Why not? Because the lines between the recreational and the medical have become blurred. Part of this has to do with the increasing medicalisation of parts of everyday life. Thus, for example, improving our moods might be thought a classic example of recreational drug use. But, of course, nowadays mood regulation and improvement is seen as a medical (psychiatric) issue too.

In conclusion then, Husak is calling for the decriminalisation of recreational drug use. By decriminalisation he simply means the removal of eligibility for state-sanctioned punishment from those who use recreationally use drugs. This is consistent with a number of anti-drug public and private practices. Furthermore, it is consistent with the criminalisation of other parts of the drug trade and with the criminalisation of drug use in particular contexts. It’s not entirely clear what he means by “drug”, but we kinda-sorta know the substances he has in mind. And while we know he defines recreational use as use that is intended to seek some positive psychological state, we also know that he thinks the line between recreational and other kinds of use (e.g. medical use) is a blurry one.

So that’s the general framework within which Husak operates. In the next post, we’ll start looking at the arguments Husak offers in support of his pro-decriminalisation stance.