Should Recreational Drug Use be Decriminalised? (Part Three)

(Part One, Part Two)

In light of the historic results in Colorado and Washington on Tuesday night (both states passed full legalisation of marijuana amendments), I thought it might be worth re-igniting my series on the decriminalisation of recreational drug use. As you’ll recall, the series is looking at the arguments presented in Husak and de Marneffe’s book The Legalization of Drugs: For and Against. Right now, I’m still working my way through Husak’s pro-decriminalisation arguments.

For those of you who did not read the first two parts, here’s a quick recap. Husak is trying to argue that the recreational use of substances such as marijuana, cocaine and heroin should be decriminalised. By “decriminalisation” is meant “the removal of the threat of criminal punishment from those who engage in that activity”. This is not the same thing as full legalisation, or state encouragement of that activity. Decriminalisation of use is consistent with regulation that discourages use, and, indeed, laws that prohibit production and sale. But, given the nature of the pro-decriminalisation arguments, it must be said that the legitimacy of the latter are doubtful.

Husak’s methodology is twofold. First, he’s looking at four traditional rationales that favour criminalisation. These come from a variety of sources, including leading authors and government agencies. He is arguing that each of these rationales fails and, consequently, that there doesn’t appear to be a good reason for criminalising recreational drug use. Then comes the second part of his methodology, in which he argues that, in addition to this, there are some good reasons for decriminalising recreational drug use. Hence, the case for decriminalisation is quite robust.

So far in this series, I’ve looked at the first of the traditional rationales for criminalisation, namely: that recreational use should be criminalised because it is harmful to the user. This rationale was found to be lacking for a number of reasons. In the remainder of this post, I will deal with the three other rationales in quick succession. They are: (i) the protection of children rationale; (ii) the prevention of crime rationale; and (iii) the prevention of immorality rationale.


1. The Protection of Children Rationale
The protection of children is a common and universally popular appeal in political and legal debates. So it comes as no surprise that protection of children is often cited as a rationale for drug criminalisation. Husak suggests that it’s more correct to call this the “protection of adolescents”-rationale, since they are often the key target group, but children can fall within the scope too and so we’ll stick with the original name.

Anyway, let’s ask ourselves seriously: what does it mean to cite the protection of children as a rationale for drug criminalisation? Seriously, it means that we think it is justifiable to punish adults (and possibly some adolescents too) for taking drugs if doing so will prevent children from taking them too. And this, in turn, is justifiable on the grounds that taking drugs would be bad for children’s health and well-being. As follows:

• (1) It is permissible to punish those who engage in a particular activity if: (a) doing so prevents children/adolescents from engaging in that activity; and (b) that activity is harmful to children/adolescents. 

• (2) Recreational drug use is harmful to children/adolescents. 

• (3) Punishing those who engage in recreational drug use will prevent children from engaging in recreational drug use. 

• (4) Therefore, it is permissible to punish those who engage in recreational drug use.

There are several problems with this argument. They start with premise (1). It’s not clear that this is a good principle of criminalisation. Of course, preventing harm to others is probably the most widely accepted principle of criminalisation, but there remains the problem of inconsistent policies toward different substances. Alcohol and cigarettes are probably harmful to children, but does it then follow that we should punish people for drinking and smoking in the hope that this prevents children from following suit? Clearly most people think not. If you want to prevent children from doing these things, the criminal punishment of adults for doing the same things seems excessive. At the same time, punishing those who sell or supply those substances to children would be more plausible.

There is also the problem that premise (1) is vague with respect to who exactly will be punished. Are adolescents to be punished for engaging in the activity too? Many jurisdictions do punish adolescents in a manner that is roughly equivalent to that of adults, but this suggests an odd attitude toward adolescent welfare. As Husak submits, sending adolescents to jail is arguably quite harmful, possibly more so than the activity we are trying to prevent (drug use in this instance). So again, it’s not clear that this really is a good principle.

Turning to premise (2), Husak argues that recreational drug use is not obviously harmful to adolescents, certainly no more so than the consumption of other licit substances which we do not criminalise. We discussed this at length in part two. Of course, there may be particular concerns about children. Since they are still undergoing rapid developmental changes, drug use may have deeper and more deleterious effects on them than it would on adults. Here, Husak gets into some studies of adolescent drug use suggesting that, for the most part, those who experiment with drugs in their youth are not permanently harmed by doing so. Those who become heavy, dependent users in youth can, of course, have problems. But it is possible to deal with those problems in other ways.

Finally, looking to premise (3), it can be argued, plausibly, that punishing people for using drugs is unlikely to have a significant preventive effect. This is for two reasons. First, the current system criminalisation probably doesn’t have a preventive effect. Of course, it’s impossible to know this for sure since we haven’t done the necessary experimental controls. Changes in the law in Colorado and Washington will be instructive in this regard. However, as I mentioned in part two, the Netherlands, which has had a de facto regime of decriminalisation in place up until this year, does not appear to have significantly high rates of drug use. And in the absence of a proper control, an interesting analogy can be drawn between recreational drug use and the use of other licit substances such as alcohol. As Husak notes, reported rates of alcohol consumption among American teenagers has decreased from approximately 50% reporting some consumption in the past month in 1979 to under 20% now (where “now” means circa 2005). Since alcohol consumption is not a criminal offence, it would seem to follow that reduction in consumption can be achieved quite successfully through other means.

A second reason for doubting premise (3) is that, assuming punishment for drug use is largely limited to adults, adolescents are unlikely to be swayed by this. Adolescents tend to be far more influenced by their peer groups when it comes to engaging in illicit activities. Punishing the adolescents themselves might have some deterrent effect, but then we’re back to the problem that this may well be be more harmful than allowing them to take drugs. We must acknowledge, however, that blanket statements like this are difficult to justify. Punishment may help set some people on the right course.


2. The Prevention of Crime Rationale
One sometimes hears it proclaimed that drug criminalisation is needed in order to prevent certain kinds of violent crime. Superficially, this sounds plausible. Everyone knows that drug-related crime is a massive problem, and since that’s the kind of thing we want to prevent, it stands to reason that we should clamp down on drug use further. Right? Not necessarily. To evaluate this rationale properly, we need to distinguish between different varieties of drug-related crime and consider their likely causes. When we do so, we see that, far from being the ideal way to prevent drug-related crime, current criminalisation policies are likely to be the cause of such crime.

Husak, following the work of others, distinguishes between three broad categories of drug-related crime:

Systemic Crime: This is the kind of crime caused by the black market selling and buying of drugs. Because the drug trade is illegal, those participating in it have to resort to non-legal means for settling any “business disputes” that arise between them. This is why they order “hits” on people who double-cross them, or why they promote the corruption and bribery of public officials.

Economic Crime: This is the kind of crime that drug users engage in in order to purchase their drug of choice. For example, the theft, fraud and robbery we see from those trying to pay off their drug dealers is classed as an “economic crime”.

Psycho-Pharmacological Crime: This is the kind of crime that is actually committed by people while under the influence of illicit drugs.

Does drug decriminalisation prevent these three types of crime? Well, looking to the first category, the answer would appear to be “no”. Indeed, the arrow of causation points in almost the exact opposite direction. Systemic crimes are largely caused by the fact that drug use is criminalised. If drugs were regulated in the same way as, say, alcohol and cigarettes, then those involved in the drug trade would have legitimate means of enforcing their business deals. This should help to reduce systemic crime. Of course, we would never actually reduce it to zero — we still have black market deals in alcohol and cigarettes after all — but we could still significantly reduce the problem. So this one seems to go in favour of the pro-decriminalisation crowd.

What about economic crimes? This is slightly trickier. Those crimes are motivated by a combination of addiction and inability to pay. Decriminalisation of drug use, combined with some form of regulation, will not necessarily lead to reduced drug prices, and so there may still be an incentive to engage in this type of criminal activity. To be sure, it could be that the high costs of illicit drugs are linked to the dangerous and violent system of trade associated with them, and thus decriminalisation and regulation would reduce prices. But, at the same time, regulation of the legal trade could impose high costs, for example through some kind of sales tax and quality control regime, and this could actually increase prices. Arguably, this has happened in the case of “legal” cigarettes and it may be one thing that encourages the black market sale of cigarettes.

The third category of crimes is the most likely to be prevented by criminalisation, but even still there are some doubts. In particular, it must be noted that the number of people who actually commit crimes while under the influence of recreational drugs is relatively small. And certainly, the link between alcohol use and crime, particularly violent crime, looks to be more robust. Nevertheless, it could be that there are particular kinds of drug — LSD, say, or “Bath Salts” — that do come with a high risk of violent behaviour, and they possibly should be criminalised. But that’s no reason to criminalise other, more benign, substances.

In sum then, while the prevention of crime is a plausible rationale for drug criminalisation, the actual causal links between criminalisation and the prevention of crime are rather doubtful. Indeed, it seems far more likely that drug criminalisation is the cause of certain egregious forms of crime.


3. The Immorality Rationale
The final rationale for criminalisation claims that recreational drug use ought to be punished because it is immoral. This rationale can be expressed as a simple syllogism:

• (5) If an activity is immoral, those who engage in it ought be subject to criminal sanction. 

• (6) Recreational drug use is immoral. 

• (7) Therefore, we ought to criminalise recreational drug use.

Once expressed in this form, the weaknesses of the rationale become apparent. For starters, premise (1) embodies a principle that few accept. Even if drug use is a form of immorality, it’s not at all clear that it should be criminalised since it’s not at all clear that every form of immorality should be criminalised. Many would argue that lying and marital infidelity are immoral, but (outside of exceptional cases such as fraud) few argue that they should be criminalised. Not every form of personal vice should be subject to criminal punishment.

Still, premise (1) is not wildly implausible. Clearly, there are other forms of immorality that ought to be criminalised, such as killing or sexually molesting another person. What we need to know is whether recreational drug use is like these things or whether it is more like telling a white lie or cheating on your spouse. This brings us to the evaluation of premise (2).

Dismissing premise (2), Husak argues that recreational drug use is not immoral in the same way as killing or sexual assault. Those activities violate the rights of other people. Recreational drug use does not. Recreational drug use, if it is indeed immoral, would be more akin to a personal vice. Thus, someone who takes a lot of cocaine might be guilty of poor impulse control or self-destructive tendencies. Should they be criminalised on those grounds? Husak argues that this is implausible. There are lots of other personal vices — again smoking and alcoholism being the obvious ones — that are not criminalised. Why single out recreational drug use?

As it happens, there may be an answer to that question. De Marneffe, in his contribution to the debate, tries to explain why (certain kinds) of recreational drug use are different in this regard, but we’ll have to wait to see what his argument is. For now, we’ll conclude by noting that Husak himself thinks that, far from being a source of immorality, the use of recreational drugs may be of some intrinsic value. And we’ll see exactly what his argument is in the next post.