Should recreational drug use be decriminalised? (Part Two)

(Part One)

This series is looking at whether recreational drug use should be decriminalised. It is doing so by analysing the arguments of Doug Husak and Peter de Marneffe in The Legalization of Drugs. Right now, we’re looking at Husak’s pro-decriminalisation arguments. Eventually, we’ll get to de Marneffe’s anti-legalisation arguments, but that’s some way off yet.

In part one, I outlined some of key conceptual features of Husak’s view. To recap, Husak calls for the recreational use of drugs to be decriminalised. An activity is decriminalised, for Husak, when those who engage in it are no longer deemed eligible for state-sanctioned punishment. This means that decriminalisation would be consistent with a number of public and private anti-drug policies. It is important to bear this in mind when evaluating Husak’s arguments.

In this post, we’re going to start looking at those arguments. In effect, Husak divides his defence of the pro-decriminalisation position into two parts: (i) a negative defence, which consists in rebutting or defeating all the pro-decriminalisation arguments; and (ii) a positive defence, which consists in enumerating reasons to be in favour of recreational drug use. We’ll be dealing with the negative part of the defence first.

In the book, Husak notes (from a US-perspective) that there is no clear “official” rationale for the criminalisation of drug use. Instead, different rationales are offered by different people and organisations. He focuses on four such rationales. The first of which claims that the criminalisation of drug use is justified on the grounds that it protects people’s health. Let’s evaluate that rationale now.


1. The Health Protection Argument
That recreational drug use can be bad for your health is a common and probably well-justified belief. But is this enough for its criminalisation to be warranted? Well, let’s think about what this entails. Following the definition of decriminalisation in part one, those who are in favour of criminalisation must think that it is right and proper to punish those who take drugs for recreational purposes. If the rightness and properness of punishment is grounded in the health of the user, then we get something like the following argument:

• (1) If engaging in activity X is seriously harmful to your health, then it is right and proper to punish you for engaging in it. 

• (2) Recreational drug use is seriously harmful to your health. 

• (3) Therefore, it is right and proper to punish people for recreational drug use.

The stipulation that the activity must be “seriously harmful” rather than merely “harmful” is designed to avoid an all-to-obvious objection to the argument, namely that it is over-inclusive. Although harmfulness is a generally accepted rationale for legislation (we ignore here the asymmetry between harm-to-self and harm-to-others), it would probably need to reach a certain threshold before criminalisation was warranted.

But obviously that’s not the only issue with the argument. As I have mentioned many times before, there are basically two theories explaining why punishment is warranted: (i) the retributive theory; and (ii) the deterrence theory. According to the retributive theory, punishment is warranted because the person being punished deserves it, i.e. because there is some desert-relation subsisting between them and the object of their punishment. According to the deterrence theory, punishment is warranted if it deters people from wrongdoing. While both theories have their problems, we can assume that both are plausible here. Our problem lies elsewhere, specifically in the question of which theory of punishment is presumed by premise (1) of the argument.

Is it the retributive theory? In other words, are proponents of the protection from harm argument claiming that recreational drug users deserve punishment? Possibly, but this seems wildly implausible. Particularly if we consider analogies with other harmful substances or activities that people engage in (something we’ll be doing a lot of over the remainder of this post). For example, eating a high fat diet or smoking cigarettes. Both are clearly harmful to the people engaging in them, but we wouldn’t usually say that they deserve to be punished, either by incarceration or by other means. They might deserve to suffer the consequences of their unhealthy lifestyle, but that’s a different thing.

So that leaves us with the deterrence theory, which is, on the whole, rather more plausible. Indeed, there is a helpful analogy which underscores its plausibility. It is now commonly accepted that we can punish people, usually fairly mildly, for not wearing a seatbelt or for driving whilst using a mobile phone. And the rationale for doing so is that this will deter people from doing those things. Admittedly, both activities can pose risks to other road users, and that may be a large part of the reason for criminalising them, but the risks they pose to the individual are definitely another part.

If we adopt the deterrence theory of punishment, we’ll need to reformulate the protection from harm argument. As follows:

• (4) If activity X is: (a) seriously harmful to your health and (b) punishing it is likely to deter people from engaging in it, then it is right and proper to punish people for engaging in activity X.

• (5) Recreational drug use is seriously harmful to your health. 

• (6) Punishing those who engage in recreational drug use is likely to deter both them and others from engaging in it. 

• (7) Therefore, it is right and proper to punish people for recreational drug use.

As you can see, this argument sets a two-part test for the justifiability of criminalising activities that are harmful to those engaging in them. What we need to see is whether this test is passed in the case of recreational drug use. We do that by considering the truth of premises (5) and (6). We’ll do this in reverse order.


2. Does Criminalisation Deter Recreational Drug Use?
Premise (6) claims that punishing recreational drug use is an effective deterrent. Is this right? Husak thinks the answer to this is very obvious: no. Indeed, it would seem like the exact opposite is true. But to support this claim we must distinguish between the possible targets of deterrence. We could justify punishment on the grounds that it will deter the punishee from taking drugs in the future; or we could justify punishment on the grounds that it will prevent other people from ever taking drugs; or, of course, we could justify it on the basis of some combination of these two types of deterrence.

So let’s consider the first option: does punishment deter the punishee from future drug-taking? It seems not. Sending people to prison (a common form of punishment for drug offences) is possibly the worst way to prevent future drug use. Drug use is rampant in many prisons, and since opportunities for other kinds of activities scarce, many people actually take up the habit in jail. But that’s not even the biggest problem. The biggest problem is that prisons are bad for your health in lots of other ways. So if the underlying rationale for criminalisation is protecting health, and if traditional forms of punishment are likely to be anathema to that, then we are flirting with an unwelcome form of inconsistency.

What about the second option: does punishment deter people who haven’t yet taken drugs? Husak argues that, going by current rates of drug use, this seems unlikely. He quotes a figure of 15 million American adults using illicit drugs every month, which suggests that current punitive policies are not particularly effective. (note: the statistics are largely derived from the ONDCP, which is slightly biased, and they date from the early 2000s, but the figures have gone up if anything). Of course, the absence of proper controls make it difficult to properly interpret those stats. But relying on jurisdictional experiments (e.g. Netherlands vs. other European countries), it can be argued that countries with more lenient policies have fairly average rates of use.

(Note: the Netherlands, long renowned for its liberal drug policies, has adopted more restrictive policies this past year. The effects of those policies are yet to be known.)

In sum, it seems unlikely that premise (6) is true, but it’s difficult to know since properly controlled trials comparing rates of drug use with and without punishment are missing.


3. Is Recreational Drug Use Seriously Harmful to Your Health?
Premise (5) states that recreational drug use is seriously harmful to your health. As I said earlier, this is intended to exclude merely trivial harms from the scope of criminalisation. But how seriously harmful must something be before it warrants criminalisation? It’s pretty difficult to say really. Husak doesn’t deny that recreational drug use can be harmful, particularly when the substances in question are the more severe drugs like cocaine and heroin, but he argues that the all-important judgment is a comparative one: is recreational drug use more harmful than other activities that we do not think it right to criminalise?

To answer that question, Husak enters a rather murky world of statistics and epidemiological studies. I say “murky” for a two reasons. First, evidence on the positive and negative effects of drug use is extremely mixed. For example, a cursory glance at the wikipedia page on the effects of marijuana reveals that the research is quite a mixed bag. And different organisations present the evidence in different ways, as it suits their purposes. Second, Husak isn’t always clear about where he is deriving his statistics from. I’m assuming, since he mentions it at the outset of the chapter and elsewhere, that the ONDCP is the main source (circa 2005), along with some other studies he mentions specifically, but he doesn’t always say. This makes it quite difficult for me to evaluate his claims and leaves me in a bit of a bind. I’ll simply present what he says and leave it to others, more well-versed in the relevant statistics, to comment and correct me. I should also add that Husak’s data is focused purely on the US so I’ll add some comments about Europe. (Note: the EMCDDA website is the main source for European data)

With those caveats in mind, let’s begin. Husak compares the effects of recreational drug use with the effects of two main comparator classes of substances: (i) licit medicinal drugs and (ii) licit recreational drugs such as tobacco and alcohol. And he compares these substances in relation to two major health-related outcomes: (a) fatalities and (b) non-fatal health problems. Let’s look at each in turn.

Drawing from the ONDCP, Husak cites a figure of approximately 25,000 illicit drugs-related fatalities per annum. This figure is an estimate. It is to be compared with approximately 100,000 deaths from prescription medicines (source: Cohen Overdose, 2001), over 400,000 tobacco-related deaths and over 100,000 alcohol-related deaths (though the latter is hard to estimate). If use of those substances is not criminalised, then why should recreational drug use be treated differently since it is less dangerous? That rhetorical question forms the backbone of Husak’s argument.

But in addition to that, Husak argues that many of the drug-related deaths are attributable to unsafe practices, such as the use of contaminated needles and so forth. Arguably, these could go down if recreational drug use was decriminalised. Data from European countries (EMCDDA) suggests this might be the case since the Netherlands, which historically had the most liberal policies, also had one of the lowest rates of drug deaths. Though, as always, that data doesn’t allow us to specify the direction of causality. At the same time, one might argue that when drugs are decriminalised, we can expect more people to use them and, consequently, the fatality rate to go up. Husak takes this into consideration and claims (without support) that if we adjust the statistics to report the ratio of fatalities per user of the substance, we still reach the same conclusion: recreational drug use is less dangerous than the use of prescription medicines and licit drugs.

Moving away from fatalities to non-fatal health problems, the picture is very much the same. The number of non-fatal health problems said to be linked to illicit drug use is very high, and they cover everything from increased risk of psychosis to reduced sex drive. Husak says he can’t even begin to scratch the surface of the statistics on this. But going purely by hospitalisations, and comparing recreational drug use to the use of licit and medicinal drugs, a similar picture emerges. To quote just one statistic used by Husak (of unknown provenance) 28% of admissions to intensive care units in 2003 were for drug-related problems. Of that 28%, 14% were tobacco-related, 9% were alcohol related, and 5% were related to other drugs.

This is not to say that substances such as marijuana, cocaine and heroin are risk-free. Of course not. Marijuana smoke is carcinogenic, perhaps more so than tobacco smoke. But marijuana can be consumed in smoke-free ways and marijuana users tend to smoke far less than tobacco smokers. Cocaine is obviously dangerous in excessive amounts, and has been linked to higher rates of heart disease, but so are many other substances (common foods) and their use has not been criminalised. Finally, heroin users have notoriously unhealthy lifestyles, but, Husak argues, this does not seem to be linked to their opiate use by itself. Methadone users, who don’t have to resort to petty crime or prostitution, can have pretty healthy lives.

Now, to be sure, the results of this statistical analysis can cut both ways. In other words, even if recreational drug use is less dangerous than other non-criminal forms of use, the problem could be that those other forms of use should be criminalised, not that recreational drug use should be decriminalised. Still, Husak submits that the libertarian impulse — i.e. the one favouring decrminalisation — is more plausible here. If we are committed to the foundational principles of liberalism, then we should not be punishing people for harming themselves.

Okay, that brings us to the end of this post. As we have seen, Husak thinks the health protection rationale provides a poor basis for current criminalisation policies. But this is only one part of his negative defence of decriminalisation. In the next post we look at how he dismantles another alleged rationale for drug criminalisation: the protection of children.