Drugs and Rights
Chapter 1 Drugs, Drug Use, and Criminalization
Douglas N. Husak
THE WAR ON DRUGS
For a period of sixteen months from 1989-1990, a majority of Americans
identified drugs as our nation's greatest concern, surpassing
crime, the environment, taxes, the homeless, education, and the
deficit. War in the Middle East temporarily
focused attention elsewhere. But President George Bush promised
to restore the problem to its "number one" status "when
the international situation has calmed down."
to William Bennett, America's first "drug czar," "drugs
remain... our gravest domestic problem."
So great is the problem perceived to be that the public has enthusiastically
responded to the latest call for a "war on drugs." This
declaration of war is not new. The military metaphor has dominated
thought about drug policy ever since Richard Nixon became the
first president to declare war on drugs.
The war metaphor is, of course, an exaggeration; the resources
mobilized against drugs are not comparable to efforts during wartime.
The costs of enforcing criminal laws against the recreational
use of drugs (henceforth shortened to "laws against drugs,"
or LAD) are modest by comparison to our military budget, even
when we are officially at peace. Still, by any measure, a massive
effort is under way to attempt to eliminate illegal drug use in
our society. This effort is built on a broad, if not an especially
deep, social consensus. Most of the opposition to the level of
current expenditures for the war on drugs has come from congressional
Democrats who argue that the commitment from Republicans is too
meager. Americans perceive that drug use is out of control and
that an extreme response is needed to curb it.
Is this perception accurate? No one can be sure. Three factors
contribute to this uncertainty, and they cannot be overcome simply
by collecting more reliable data. First, there is no agreement
about what constitutes a drug. Definitions of "drugs"
are not especially helpful, as I will show later in this chapter.
Second, there is no basis to compare and contrast the extent of
drug use in the same country at different times, or in different
countries at the same time. If Americans consume more of one drug
but less of another than at some previous time, no common denominator
is available to show whether we are using greater or lesser quantities
of drugs. Third, there is no obvious starting point from which
to measure trends. Drug use seems to have remained relatively
constant over the last century, but it has increased dramatically
throughout the most recent two-and-a-half decades, only to decline
again in the past few years. These statistics can be manipulated
to be used as evidence of whatever trend one wants to find.
Not surprisingly, the exact extent of illegal drug use in America
today is subject to dispute, although the quality of the data
Estimates are based primarily
on three annual studies: the High School Senior Survey, conducted
by the Institute for Social Research at the University of Michigan;
the Drug Abuse Warning Network (DAWN), which collects data from
535 hospital emergency rooms and county medical examiners in twenty-one
cities; and the National Household Survey on Drug Abuse, conducted
by the National Institute on Drug Abuse. Additional data are available
from a growing number of sources, such as companies that screen
applicants and employees and police departments that administer
drug tests on arrestees. Each survey is imperfect. However, they
combine to provide reasonably accurate sociological information
about drug use.
According to the National Household Survey on Drug Abuse, more
than 28 million Americans violated LAD in 1990. Violations occurred
"on literally billions of occasions."
drug use in America remains at significant levels. But because
of or despite the war on drugs, illegal use in virtually all categories
has declined significantly throughout the last several years.
Over 60% of high school seniors reported having tried marijuana
during the peak year of 1979; that figure dropped to 44% in 1990.
Daily use has declined from a high of 10.7%
in 1978 to only 2.9% in 1990. Cocaine use has peaked in high schools
as well. During the peak year of 1985, 17.3% of high school seniors
reported having tried cocaine; that figure dropped to 10.3% in
The use of psychedelics and amphetamines
has followed a similar trend. Heroin use, never a significant
problem in schools, has remained relatively stable throughout
American society. And a 20% drop in cocaine-related medical emergencies
in the fourth quarter of 1989 provides hope that the so-called
crack epidemic may have peaked as well.
Accurate or not, the perception that drug use is out of control
has triggered an enormous state response. Illegal drugs have become
the single most important concern of our criminal justice system.
Although estimates are imprecise, tens of billions of dollars
are probably spent to enforce LAD every year,
the less direct costs of the war on drugs are several times greater.
Ronald Hamowy describes this war as "the most expensive intrusion
into the private lives of Americans ever undertaken in the nation's
About 750,000 of the 28 million illegal drug users are arrested
every year. Between one-quarter and one-third of all felony charges
involve drug offenses.
The severity of
a sentence has almost no limits for, as the Supreme Court has
recently held, a term of life imprisonment without parole for
the offense of possession of 677 grams of cocaine is not cruel
and unusual punishment.
As a result,
courts have become clogged, and prison overcrowding is legendary.
The U.S. Sentencing Commission has estimated that within fifteen
years the Anti-Drug Abuse Act passed by Congress in 1986 will
cause the proportion of inmates incarcerated for drug violations
to rise from one-third to one-half of all defendants sentenced
to federal prison. The costs of punishment threaten to drain the
treasury, as each prisoner requires expenditures of between $10,000
and $40,000 per year. Since the average punishment for a drug
conviction has risen to seventy-seven months in prison, each new
inmate will cost taxpayers approximately $109,000 for the duration
of the sentence.
Law enforcement officials continue to exercise broad discretion
in arresting and prosecuting drug offenders. More than three-quarters
of those arrested are eventually charged with possession, typically
Many crimes of possession
involve amounts that include a presumption of intent to distribute.
Sometimes the quantity of drugs that creates this presumption
is small. Moreover, the means used to measure the quantity of
given drugs can be peculiar. Since statutes typically refer to
a "mixture or substance containing a detectable amount"
of a drug, the weight of the entire mixture or substance is included
when calculating the quantity of a drug. If a tiny dose of LSD
has been placed on a tab of paper or a cube of sugar, the weight
of the tab or cube is included in the determination of the amount
of the drug. The Supreme Court has recently held this practice
to be constitutional.
The true extent of the war on drugs cannot be measured in quantities
of dollars spent or numbers of defendants punished. The enforcement
of drug laws has diminished precious civil liberties, eroding
gains for which Americans have made major sacrifices for over
two centuries. Increasingly common are evictions, raids, random
searches, confiscations of driver's licenses, withdrawals of federal
benefits such as education subsidies, and summary forfeitures
of property. Atlanta has sought to reduce drug use and drug-related
violence by imposing an 11:00 P.M. weekday curfew on youths under
age seventeen. If successful, this experiment could be followed
in other cities.
And matters may get worse before they get better. Since existing
efforts are widely perceived to be ineffective, more severe measures
have been advocated. Red Auerbach, general manager of the Boston
Celtics, captures the public mood by suggesting that the drug
problem has become so overwhelming that "you have to put
this altruistic civil rights stuff down the toilet."
Governor Douglas Wilder of Virginia proposes
mandatory testing of college students for drug use. Chester Mitchell
describes some of the more draconian ideas as follows:
In recent years members of Congress have proposed bills that would,
if passed, permit the military to assist in drug law enforcement,
create a northern Arctic "gulag" for drug offenders,
restrict bail for drug suspects, permit disclosure of IRS data,
eliminate the exclusionary rule, punish foreign drug producers,
and repeal the prohibition against use of herbicides abroad.
This list could be expanded. Texas state legislator Al Edwards
proposes cutting off a finger for each drug conviction. Delaware
state senator Thomas Sharp suggests flogging drug felons.
Bennett has responded that "I don't
have any problem" with a proposal to "behead the damn
Reagan reserved judgment when asked whether "drug dealers"
should be executed, but he was quick to add, "I know they
The fact that many
of our politicians take these measures seriously indicates that,
in the words of Charles Rangel, chair of the House Select Committee
on Narcotics Abuse and Control, "We have yet to begin the
fight. We have not even fired the first shot."
no politician has ever lost a vote by promising to take a harder
stance on drugs than an opponent. A 1989 Gallup poll revealed
that 77 percent of all respondents favored "tougher laws
for drug users."
These facts, figures, and attitudes are staggering, but they cannot
begin to tell the entire story of the war on drugs. Several important
dimensions of this war cannot be reduced to raw numbers. At least
three additional (and frequently overlooked) matters must be discussed
if this war is to be understood and evaluated.
First, why do so many Americans use recreational drugs? Or, more
specifically, why do so many Americans use the kinds of recreational
drugs of which the majority disapproves? The power of drugs per
se can only be part of the explanation. Illegal drug use is less
prevalent in many countries where drugs are plentiful, inexpensive,
and higher in quality than those available in America. A more
viable strategy to combat drugs might attempt to identify and
change the conditions peculiar to America that have led to widespread
use. For present purposes, I am less concerned to attempt to identify
these conditions than to ask why this issue has received so little
attention from drug prohibitionists. It is hard to see how a long-term
solution to the drug problem can be found without knowing why
so many Americans are motivated to break the law in the first
This "root cause" argument is usually greeted with disdain.
Bennett has dismissed it with the following analogy:
If we want to eliminate the drug problem, these people say, we
must first eliminate the "root cause" of drugs.... Twenty-five
years ago, no one would have suggested that we must first address
the root causes of racism before fighting segregation. We fought
it, quite correctly, by passing laws against unacceptable conduct.
The causes of racism was an interesting question, but the moral
imperative was to end it as soon as possible and by all reasonable
means: education, prevention, the media, and not least of all,
the law. So too with drugs.
Bennett purports to explain why "the drug problem" can
and should be "eliminated" without paying much attention
to the "root causes" of drug use. Is his analogy between
drug use and racial segregation sound?
Perhaps efforts to combat segregation continue to prove difficult
precisely because the root causes of racism have not been addressed.
But I will not press this response here. Suppose it is true that
the state should fight segregation without addressing the root
causes of racism. Why might this be so? Segregation is a public
manifestation of racism, and it may be possible to alter the structure
of racist institutions without undermining racism itself. If the
state sought to criminalize all manifestations of racism, law
enforcement alone could not have much effect without addressing
root causes. However, not all expressions of racism are subject
to criminal penalties. In our private lives, we Americans remain
free to act according to whatever racist beliefs we happen to
hold. No laws prevent private displays of racism. One need not
invite a member of a particular race to his private parties, but
he is obliged to serve him in his public restaurants. Racism itself
is not the target of desegregation efforts.
But the war on drugs is different. LAD criminalizes both private
and public acts. The state does not recognize a personal sphere
in which individuals remain free to behave according to their
preferences; it enacts a general prohibition of recreational drug
use. For this reason, law enforcement in this area has a much
more ambitious task than is assigned to those who fight against
public segregation. It is less likely that the war on drugs can
succeed without attending to the root causes of drug use.
A second issue is typically neglected in understanding and evaluating
the war on drugs: Why has war been declared on illegal drugs?
The simplistic answer is that drugs pose a threat to American
society comparable to that of an invading enemy. Self-protection
requires the mobilization of resources equivalent to those employed
in time of war. For reasons that will become clear, I do not believe
that this answer can begin to explain the extraordinary efforts
of the state in combating drugs. Few warsand certainly not
the war on drugscan be understood as a purely rational response
to a grave social crisis.
No one doubts that the drug problem calls for state action, but
why has a militaristic response been thought appropriate? The
metaphors used to describe a phenomenon constrain what will appear
to be an acceptable solution to it. If we really are at war against
drugs, the alternative of decriminalization can be characterized
only as a shameful retreat. William von Rabb, commissioner of
the U.S. Customs Service, protests that legalization would be
"an unconscionable surrender in a war [in which] there can
be no substitute for total victory."
what is "total victory," and why is it necessary? A
policy that does not work can always be changed, but a war that
is not won can only be lost. With hindsight, it appears that Americans
may have been hasty in rallying to the call for a war on drugs.
Perhaps we should not be talking about a drug war at all,
but rather about a drug policy. A rational policy might
well include massive efforts by our criminal justice system, but
other components of a sensible policytreatment, education,
and the option of simply leaving people aloneare not easily
expressed within a war mentality.
What needs to be explained is why some problems are singled out
for attention, whereas others are relatively ignored.
abuse of legal drugs such as alcohol and tobacco is not the only
hazard likely to be overlooked by the war on illegal drugs. Another
such problem is lead. Federal authorities estimate that one out
of every six children under the age of six suffers from irreversible
Children with elevated
lead levels have impaired auditory and language functioning, decreased
attention spans, liver and kidney damage, altered electroencephalogram
readings, and a median IQ deficit of six points compared to their
Despite these alarming
data, no one has called for a declaration of war on lead. Why
not? There is no need to suppose that the state is conspiring
to deliberately manufacture a crisis in order to support an Orwellian
expansion of Big Brother. An alternative account explains why
the public has been so receptive to a militaristic response to
The public fears that America is a nation in decline. Crime, poverty,
poor education, corporate mismanagement, and an unproductive and
unmotivated work force are cited as evidence of this deterioration.
Who, or what, should be blamed? The political climate limits the
range of acceptable answers. Conservatives will not allow liberals
to blame institutional structures for our problems. The difficulty
cannot be that government has failed to create the right social
programs to help people. Nor will liberals allow conservatives
to blame individuals for our problems. The difficulty cannot be
that people are lazy, stupid, or egocentric. What alternative
Illegal drugs provide the ideal scapegoat. Drugs are alleged to
be so powerful that persons cannot be blamed very much for succumbing
to them, as they could be blamed for not studying or working.
And drugs are so plentiful and easy to conceal that government
cannot be blamed very much for failing to eliminate them. Even
better, most drugs are smuggled from abroad, so Americans can
attribute our decline to the influence of foreigners. In blaming
drugs, politicians need not fear that they will antagonize a powerful
lobby that will challenge their allegations and mobilize voters
against them. Almost no organized bodies defend the interests
of drug users. Illegal drugs represent a "no-lose" issue,
the safest of all political crusades.
A scapegoat would be imperfect unless there were at least some
plausibility in the accusations of drug prohibitionists. Perhaps
illegal drug use has increased crime, contributed to poverty,
exacerbated the decline in education, and decreased the productivity
of workers. Sometimes it may have done so in dramatic ways. The
stories of the most decrepit victims of drug abuse lend themselves
to biographies and television docudramas that make a deep and
lasting impression on viewers. Everyone has seen vivid images
of persons who were driven by drugs to commit brutal crimes, abandon
their children, steal from their friends, drop out of school,
stop going to work, and perhaps even die. In light of these consequences,
who can condone illegal drug use?
I will attempt to show that a more accurate profile of the typical
adult user of illegal drugs is less negative. This picture should
emerge as a result of two factors that help to keep the drug problem
in perspective. First, any number of other problems that receive
almost no media attention and have not been made the target of
a war contribute enormously to the problems America would like
to solve. Second, the terrible problems associated with drug use
occur in only a very small minority of cases. A persistent theme
of this book is that drug policy has too often been framed by
unwarranted generalizations from worst-case scenarios that seldom
conform to the reality of typical drug use.
I will not further explore these two issues I believe to be significant
in understanding and evaluating the war on drugs. A more detailed
treatment, however important, would only reinforce the social
perspective on drugs that I am anxious to replace. I am not primarily
interested in showing that the disutility of drug use has been
exaggerated. Instead, my position is that moral and legal questions
about drug use have been approached from too narrow a perspective.
In a society that boasts of its concern for moral rights, debates
about drugs have tended to lose sight of individuals. Decriminalization
theorists have done as much to encourage this misperception as
apologists for the status quo. Both sides frame the central question
in similar terms: Do drugs cause more harm than drug laws? If
the answer is no, LAD should be opposed; if the answer is yes,
war should be waged. But this utilitarian approach, however insightful,
is not the only perspective worth adopting. I will argue that
utilitarian thinking is inappropriate to apply to the act of recreational
drug use unless prohibition does not infringe the moral rights
of drug users. It is by the standard of moral rights that the
justifiability of the war on drugs should be assessed, and it
is by the standard of moral rights that the justifiability of
the war on drugs is most vulnerable.
A third and final issue about the war on drugs raises a matter
that I will explore in greater depth: If there is to be a war
on drugs, against which drugs should it be waged? Usually this
question is answered by naming acceptable and unacceptable recreational
drugs: Heroin and crack are terrible; cocaine is only slightly
better, but poses a comparable threat because it is more widely
used; marijuana is not quite so worrisome, but still is bad enough
to prohibit; alcohol and tobacco are not good, but should be tolerated.
This kind of response, however, simply identifies a number of
conclusions without indicating the reasoning that supports them.
It does not articulate a set of principles to test the accuracy
or coherence of these judgments. Particular drugs obtain their
evaluations because they are believed to possess certain characteristics;
conceivably, some of these drugs could lack those characteristics.
Criteria are required to show why some recreational drugs should
be prohibited, and others should be allowed.
I believe that progress in thinking about drugs can be achieved
by shifting the focus of debate from real to hypothetical cases.
What properties would a recreational drug have to possess so that
adults would have a moral right to use it? What properties would
a recreational drug have to possess so that adults would lack
a moral right to use it? Only if these questions are answered
is it possible to identify those existing drugs, if any, that
satisfy these criteria. Without answers to these questions, no
one should be too confident that a war on a given recreational
drug is justified. Even if these questions do not seem urgent
today, they are certain to become more pressing in the future.
As Bennett warns: "New illegal products will no doubt continue
to appear.... Whichever happens to be the drug of the day, our
job is to persist in making it difficult to buy, sell, or use
But why? Simply because it
is a drug? What is it about drugs that makes their prohibition
seem so urgent? Is it impossible even to imagine a new recreational
drug that society should condone and perhaps welcome?
MEDICAL AND LEGAL DEFINITIONS OF DRUGS
Labeling a substance a "drug" has extraordinary significance
in the eyes of the public. The belief that a recreational activity
involves a drug automatically evokes wholly different attitudes
and reactions than are thought to be appropriate for a recreational
activity that does not involve a drug. War has been declared on
drugs. If war is to be declared on something, one would
hope that two conditions would be satisfied. First, the enemy
should be clearly identified. Second, the special significance
of the enemy should be demonstrated. Unfortunately, neither condition
is satisfied by the war on drugs.
Rarely do makers of policy bother to propose a definition of drugs.
According to Franklin Zimring and Gordon Hawkins, this failure
reflects "a long-standing tradition generally respected throughout
the available literature on drug abuse and most clearly evident
in previous reports on the subject published by federal departments
Why has this failure
been tolerated? Zimring and Hawkins offer no explanation. Lyndon
Johnson's declaration of "war on poverty" gave rise
to endless controversies about how poverty should be defined.
But the declaration of war on drugs has stimulated little dispute
about what drugs are. The problems I will raise in this section
are not due to sloppiness in defining terms. They cannot be overcome
simply by exercising greater care and ingenuity in the crafting
of definitions. Instead, they indicate that the very concept of
a drug is vague and imprecise.
How is "drug" defined by those who make the effort to
define it at all? The answer depends on the discipline where an
answer is sought. Perhaps the most frequently cited medical definition
is "any substance other than food which by its chemical nature
affects the structure or function of the living organism."
Undoubtedly this definition is too broad.
Nonetheless, I tentatively propose to adopt it until a better
alternative becomes available.
Notice that this definition refers only to the pharmacological
effect of a substance and not to its legal status. For two reasons,
"drugs" must not be defined as synonymous with "illegal
drugs." First, it would be absurd to suppose that a non-drug
could become a drug, or that a drug could become a non-drug, simply
by a stroke of the pen. A legislature can change the legal classification
of a substance, but not the nature of that substance; it has no
more power to decide that a substance is a drug than to decide
that a substance is a food. Second, a philosophical study designed
to evaluate the moral rights of drug users can hardly afford to
rely uncritically on the existing legal status of substances,
since the legitimacy of these determinations is part of what is
under investigation. To suppose that "drugs" means "illegal
drugs" begs important questions and concedes much of what
I will challenge. In what follows, I will use the word "drug"
to refer to both legal and illegal substances that satisfy the
medical definition I cited.
No doubt this usage will create confusion. Despite the desirability
of distinguishing "drugs" from "illegal drugs,"
there is ample evidence that the public tends to equate them.
Surveys indicate, for example, that whereas 95 percent of adults
recognize heroin as a drug, only 39 percent categorize alcohol
as a drug, and a mere 27 percent identify tobacco as a drug.
This tendency is pernicious. The widespread
premise that only illegal substances are drugs lulls persons into
accepting unsound arguments such as the following: Drugs are illegal;
whatever is illegal is bad; we drink alcohol; what we do isn't
bad; therefore, alcohol is not a drug. Clear thinking about this
issue is impossible unless one realizes that whether a substance
is a drug is a different question from whether that substance
is or should be illegal.
How did the "semantic fiction"
"drugs" with "illegal drugs" arise? The story
of nicotine may be instructive. The inability of the public to
recognize nicotine as a drug is due less to the pharmacological
effects of the substance than to the powerful political influence
of the tobacco industry throughout American history. The regulation
of tobacco is not under the authority of the Food and Drug Administration
(FDA). Tobacco appeared in the 1890 edition of the U.S. Pharmacopeia,
an official listing of drugs published by the government.
But the drug was deleted from the 1905 edition, which automatically
withdrew it from FDA supervision. The removal of tobacco from
the Pharmacopeia was the price that had to be paid to induce
legislators from tobacco-growing states to support the Food and
Drug Act of 1906. The FDA had another opportunity to gain authority
over nicotine when the Hazardous Substances Labeling Act of 1960
empowered it to control the sale of dangerous substances with
the capacity to produce illness through inhalation. But the secretary
of the Department of Health, Education, and Welfare (DHEW), the
parent organization of the FDA, argued that this act should not
be construed to create FDA authority to regulate cigarettes until
Congress amended the act to make this interpretation more explicit.
Congress subsequently rejected such an amendment.
familiar health warnings on cigarette packages were eventually
required by the Federal Trade Commission (FTC) as part of its
authority to regulate unfair and deceptive trade practices. The
status of nicotine as a "drug" is irrelevant to the
basis of the FTC's authority. The moral of this story is that
the categorization of a substance as a drug is a function of politics
and not just of pharmacology.
The unfortunate equation of "drugs" with "illegal
drugs" runs throughout the policy statements of the National
Drug Control Strategy. Bennett alleges that "the majority
of American city residents... do not take drugs," but he
also cites statistics to show that alcohol is "the most widely
abused substance in America."
two statements suggest that Bennett believes that alcohol is not
a drug. What, then, is a drug? Bennett does not say.
Legal definitions of "drugs" are somewhat more complicated
than the earlier medical definition. The federal Controlled Substances
Act incorporates the following definition of "drugs"
from the Food, Drug, and Cosmetic Act:
"Drugs" means (a) substances recognized in the official
United States Pharmacopeia, official Homeopathic Pharmacopeia
of the United States, or official National Formulary, or any subsequent
to any of them; and (b) substances intended for use in the diagnosis,
cure, mitigation, treatment, or prevention of disease in man or
other animals; and (c) substances (other than food) intended to
affect the structure or any function of the body of man or other
animals; and (d) substances intended for use as a component of
any article specified in subsections (a), (b) and (c) of this
section; but does not include devices or their components, parts
I will offer two critical observations about this elaborate definition.
First, the conjunction "and" that separates the four
criteria, (a)-(d), in this definition cannot be taken literally.
Would anyone seriously maintain that a substance fails to satisfy
this statutory definition because it is not used in the diagnosis
or treatment of a disease, even though it is listed in the Pharmacopeia
and affects the structure or function of the body? On the
other hand, no one would argue that a substance qualifies as a
drug simply by satisfying any of these four criteria. Is a stethoscope
a drug because it is a substance used in the diagnosis of disease?
Second, criteria (b), (c), and (d) make a peculiar reference to
intentions. A substance satisfies criterion (b) if it is
intended to be used for the diagnosis of a disease and criterion
(c) if it is intended to affect the structure or function of the
body. The statute does not explicitly identify the person(s) to
whose intentions it refers. One would think that the intentions
of the person who makes the diagnosis are relevant in (b), whereas
the intentions of the person who dispenses or uses the substance
are relevant in (c). This reference to intentions produces some
very curious results. Users may be mistaken about whether a particular
substance has an effect. Suppose that someone believes that the
consumption of a placebo will affect his bodily structure or function.
If so, the placebo qualifies as a drug according to this definition.
One can only speculate about why the drafters of this statute
thought it advisable to define drugs not according to their true
properties or effects, but according to the properties or effects
that an unspecified person intends them to have.
Only criterion (a) does not make reference to intentions. It provides
what might be called an operational definition; it describes a
simple test to determine whether a substance is or is not a drug:
A substance is a drug if and only if it is contained in the Pharmacopeia.
This process is like defining a word as whatever configuration
of letters appears in an authoritative dictionary. Ultimately,
however, operational definitions resolve nothing; they merely
shift the burden to experts who prepare the authoritative sources. How do
the experts decide what drugs are? As I have already suggested in the case
of tobacco, the exclusion of a substance from the Pharmacopeia
need not be a function of its pharmacological properties.
If the manufacturers of tobacco products had lacked political
clout around the turn of the century, or if tobacco had been discovered
later in history, tobacco would certainly have appeared in the
Pharmacopeia, thereby satisfying criterion (a) of the legal
definition of "drug."
For these two reasons, this legal definition is deficient. Do
these defects contaminate any legal results that invoke this definition?
Since so much depends on whether the public regards a substance
as a drug, one might naturally anticipate that the same would
be true of the law. Many difficult questions arise in the course
of interpreting this definition. Consider two examples. Since
a given substance becomes a drug when it is intended for use in
the treatment of "disease," it becomes crucial to know
what a disease is. Philosophers of medicine have debated the nature
of disease since Plato. And because "foods" are contrasted
with drugs, it becomes crucial to know what a food is. Statutory
definitions are unhelpful.
In light of
the propensity of lawyers to stir up litigation, enormous controversy
should have surrounded attempts to define "disease"
Surprisingly, these legal controversies have rarely taken place,
and it is important to understand why. The simple explanation
is that modern statutes do not rely on the term "drug"
very much. Nothing of legal significance depends on whether or
not a substance satisfies the preceding definition and qualifies
as a drug. The terms of the Controlled Substances Act create the
authority to regulate "drugs or controlled substances,"
not "drugs" per se. As I will describe in more detail
in the following section, regulation under this act is achieved
by placing a drug on one of five schedules. The statute defines
"controlled substance" to mean "a drug, or other
substance, or immediate precursor, included in Schedule I, II,
III, IV, or V."
Thus a "controlled
substance" can refer to either a "drug" or an
"other substance," as long as it is placed on a schedule.
The act does not define "substance," and it provides
no guidance about how the distinction between substances and non-substances
should be drawn. Remarkably, the concept of a drug has no special
significance in this statutory scheme.
In other words, legislators can admit that a substance is not
a drug without surrendering any of their authority to regulate
it under the Controlled Substances Act. Nothing prevents this
statute from being used to prohibit the manufacture, sale, distribution,
possession, or consumption of non-drugs, as long as what is regulated
qualifies as a substance. As one might expect, this broad, almost
unlimited authority to control substances rather than drugs produces
some very peculiar results. However, the authority created by
the act is not boundless. Some materials"distilled spirits,
wine, malt beverages, or tobacco"are explicitly excluded
from the definition of a "controlled substance."
Alcohol and tobacco are not controlled substances
for the simple reason that the statute says they are not. With
this stroke of the legislative pen, two of the most dangerous
drugs are placed beyond the scope of regulation under the Controlled
The circularity in this definition of a "controlled substance"
is evident. A controlled substance is any substance that appears
on any of the five statutory schedules. In other words, a controlled
substance is any substance that is controlled. From all that has
been said so far, water and chocolate could qualify as controlled
substances. The definition of drugs explicitly distinguishes drugs
from foods, but since foods would seem to be substances, this
statute could be used to prohibit the consumption of foods after
all. Beyond the explicit exceptions for alcohol and tobacco, the
only limitations on what substances can be controlled are found
in the criteria for appearance on each of the five statutory schedules.
In effect, these criteria substitute for a definition of "drugs."
Even more importantly, they specify what it is about substances
that makes them eligible for regulation.
Although almost anything would seem to be a substance and thus
eligible for regulation under the Controlled Substances Act, I
do not suppose for a moment that courts would actually allow air,
water, or other fanciful examples to be prohibited under this
statute. Obviously, this act was not intended to create the authority
to proscribe the sale of handguns. But nothing in this statute
requires that a "drug or other substance" be consumed;
surely a bullet in the brain can "affect the structure or
function of the body," partly as a result of its chemical
properties. It would be fascinating to examine the reasoning of
a court about why such fanciful examples are ineligible for regulation
under the act.
Despite the fact that legal regulations effectively abandon the
concept of a drug in favor of the amorphous concept of a substance,
I will continue to follow popular usage and discuss the moral
and legal issues involved in recreational drug use. In most of
what follows, I will pretend that the act does not create the
authority to regulate substances that are not drugs. Yet I do
so with reluctance and not simply because "drug" is
hard to define. Shifting the inquiry from drugs to substances
would help to overcome the tendency to believe that the drug problem
is sui generis. The fact that a substance is or is not
a drug does not seem especially important to the case for or against
its legal regulation. Suppose that a new food were discovered
that was no more or less dangerous or subject to abuse than cocaine
and had exactly the same side effects. The fact that this new
substance is a food rather than a drug is not, I think, relevant
to the decision about whether it should be prohibited.
In fact, I see no reason why the same criteria of justification
that pertain to the regulation of substances, drugs or otherwise,
should not pertain to the regulation of all recreational activities.
Suppose, for example, that a new activity were invented that was
no more or less dangerous or subject to abuse than cocaine and
had exactly the same side effects. The fact that this new recreational
activity does not involve the consumption of a drug is not, I
think, relevant to the decision about whether it should be prohibited.
In other words, the fact that something affects the function or
structure of the organism by its chemical properties does not
seem to be especially significant. The personal and social effects
of an activity are important to the case for prohibiting it, not
the means by which they result. I will test the hypothesis that
"drugs are not different" throughout this book. This
hypothesis will not lead me to abandon the use of the word "drug,"
but it will allow me to draw frequent analogies between the use
of drugs, the consumption of unhealthy foods, and the performance
of dangerous activities. If these analogies fail, it will not
be because drugs and non-drugs should be evaluated by different
criteria. Or so I will tentatively suppose.
Those who regard these analogies as inapt must make a case that
drugs are different. But no support for the belief that
drugs are different can be drawn from the legal definition of
"drug" found in the statutory scheme that controls drug
use. This belief, which tends to be taken for granted by the public,
seems to have been repudiated by those who drafted the Controlled
Substances Act, and who did not attach any special significance
to drugs per se.
LEGAL REGULATION OF DRUGS
Mark Moore writes:
One of the most frustrating aspects of the current debate about
legalization is that the debaters often seem ignorant about the
current legal regime. The system of laws regulating drug use is
often painted as moralistic and paternalistic rather than as a
rational scheme for regulating the uses of psychoactive drugs.
Moore is correct that both friends and foes of LAD are often unaware
of how recreational drug use is regulated by law. In this section,
I propose to remedy this deficiency. However, my examination does
little to support Moore's judgment that LAD comprises a "rational
The Comprehensive Drug Abuse Prevention and Control Act, popularly
known as the Controlled Substances Act of 1970, provides the basis
for understanding the legal regulation of drugs. This act supplanted
previous statutory schemes for prohibiting the use of drugs and
serves as a model for a uniform state law. Forty-five states have
adopted the Uniform Controlled Substances Act in some form or
another; only Alaska, Colorado, Maine, New Hampshire, Vermont,
and the District of Columbia have failed to do so. This act divides
"drugs or other substances" into five schedules. The
placement of a drug in one schedule or another affects manufacturing
quotas, import restrictions, dispensing limits, and criminal penalties
for unlawful trafficking. The schedule where a drug is placed
has no affect on the punishment for unlawful possession.
This act does not criminalize drug use per se. This fact is not
especially significant. The comparable statutes in twelve states
create "use provisions," which punish "using"
or "being under the influence" of a controlled substance.
Most states follow the federal act and do not criminalize use
itself. The difference is unimportant, since it is virtually impossible
to use a drug without possessing it. As I will argue in Chapter
3, possessory offenses are anticipatory; they provide a means
to prevent the consummate harms associated with drug use before
they occur. If drugs were not used, no one would worry about their
possession. In case there is any doubt, Bennett writes that "the
drug problem in its essence" is "use itself";
drug use is "the chief and seminal wrong."
No one thinks that possession is the "seminal
wrong" or the "essence" of the drug problem. For
these reasons, I will continue to refer to the crime of drug use,
although I am fully aware that the Controlled Substances Act does
not explicitly create such an offense. This fact does not affect
any of my arguments for or against LAD.
Although there is some variation among states about the particular
schedule where a given drug is placed, the federal act categorizes
drugs roughly as follows: Schedule I includes heroin, LSD, and
marijuana; Schedule II, cocaine and amphetamine-type stimulants;
Schedule III, nonamphetamine-type stimulants and barbiturates;
Schedule IV, barbiturate and nonbarbiturate depressants; and Schedule
V, compounds with low amounts of narcotics, stimulants, and depressants.
Three states (Arkansas, Tennessee, and North Carolina) have created
a special "Schedule VI" solely for marijuana.
The criteria governing the schedule where a drug is placed are
controversial, important, and resistant to a quick summary, so
I will reproduce them in full:
(1) SCHEDULE I:
These criteria are used to decide whether and under what circumstances
a drug will be regulated. In addition, they identify what it is
about a drug in virtue of which prohibition is thought to be justifiable.
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical
use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or
other substance under medical supervision.
(2) SCHEDULE II:
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical
use in treatment in the United States or a currently accepted
medical use with severe restrictions.
(C) Abuse of the drug or other substance may lead to severe psychological
or physical dependence.
(3) SCHEDULE III:
(A) The drug or other substance has a potential for abuse less
than the drugs or other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical
use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to moderate
or low physical dependence or high psychological dependence.
(4) SCHEDULE IV:
(A) The drug or other substance has a low potential for abuse
relative to the drugs or other substances in schedule III.
(B) The drug or other substance has a currently accepted medical
use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical
dependence or psychological dependence relative to the drugs or
other substances in schedule III.
(5) SCHEDULE V:
(A) The drug or other substance has a low potential for abuse
relative to the drugs or other substances in schedule IV.
(B) The drug or other substance has a currently accepted medical
use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical
dependence or psychological dependence relative to the drugs or
other substances in schedule IV.
An examination of these criteria is central to my theoretical
project to describe a recreational drug that adults would have
or would lack a right to use. Apparently, the state concedes that
persons have a legal right to use those recreational drugs that
fail to satisfy the criteria for inclusion on any of the five
statutory schedules. Hence these criteria contain the state's
answer to the question of what properties a recreational drug
would have to possess before adults would have or would lack a
right to use it. Interpretations of this act should make it possible
to describe a hypothetical drug that is not controlled and that
adults have a right to use recreationally.
Applications of this complex statutory scheme require a number
of very difficult determinations. I will discuss some of the more
controversial issues that arise in deciding where (or whether)
to schedule a given drug.
First, the drafters of the act neglect to specify the relationship
among the several criteria used to schedule a given "drug
or other substance." As with the definition of "drug"
I described earlier, no "and" or "or" clearly
separates the end of one criterion from the beginning of the next.
Perhaps the more natural reading of the act is that the criteria
should be conjoined. In other words, a "drug or other substance"
should not be placed on Schedule I unless it satisfies criterion
(A) and (B) and (C). If so, the number of existing
schedules is grossly inadequate to classify all drugs. For example,
a "drug or other substance" with "no accepted medical
use" but with less than a "high potential for abuse"
cannot be placed on any of the five schedules.
In order to avoid this difficulty, one might expect that courts
would construe the criteria disjunctively. According to this interpretation,
a "drug or other substance" may be placed on Schedule
I if it satisfies criterion (A) or (B) or (C). But
this interpretation is absurd. No one would think that possession
of a "drug or other substance" without a medical use
should give rise to criminal penalties. A lump of coal may lack
a medical use, but surely its possession could not be made criminal
under the act. But why not? Much of the difficulty is due to the
failure of the drafters to restrict the application of the act
to "drugs" rather than to "drugs or other substances."
Judicial interpretations of the terms of the act have not resolved
the confusion over the relationship among the several criteria
used to schedule a given drug. Courts have held that "the
three statutory criteria for Schedule I classification... should
not be read as being either cumulative or exclusive."
These criteria "are guides in determining
the schedule to which a drug belongs, but they are not dispositive."
Apparently, the relationship among the criteria
should not always be construed either conjunctively or disjunctively.
This holding is unhelpful in providing any guidance about how
the statutory criteria should be interpreted. This failure
is serious. As a result, the criteria for placing a substance
on one schedule rather than another can be, and often are, indeterminate.
Thus the Controlled Substances Act offers no definitive answer
to the question: What properties must a drug possess before its
use can be prohibited? Of course, the use of a recreational drug
that satisfies none of the criteria of the act will be permitted.
For this reason, it should still be possible to describe the properties
of a hypothetical drug that falls beyond the reach of the act.
Several criteria in the act must be interpreted before such a
recreational drug can be described. Criterion (B) in Schedules
I-V is especially difficult to understand. Applications of the
Controlled Substances Act require a determination of whether a
"drug or other substance" has a "currently accepted
medical use." Drugs without a currently accepted medical
use are placed in Schedule I; otherwise, they are placed in subsequent
schedules. How does one decide whether a given drug has an accepted
According to one possible answer, a drug has an accepted medical
use only when the FDA approves an application to market it. But
this answer cannot be correct. The FDA might reject an application
to market a drug for seven distinct reasons, including the failure
of the application to contain relevant patent information.
The absence of medical use cannot be inferred
simply from the lack of FDA marketing approval.
A second possible answer is that a drug has an accepted medical
use when sufficient numbers of the medical community believe that
it has such a use.
But this interpretation
opens a Pandora's box. If medical practitioners agree that the
best treatment for drug addicts includes administration of an
addictive drug under medical supervision, then no addictive drug
will satisfy this criterion for placement on Schedule I. According
to this interpretation, any addictive drug could have a medical
use. But this result cannot be what the drafters of the act had
in mind by an "accepted medical use."
clearly had no intent to duplicate the so-called British System
and to allow medical practitioners to prescribe Schedule I narcotics
A closely related problem is to determine how a drug can acquire
an "accepted medical use" once it has been placed on
Schedule I. According to some commentators:
The true test of [the statutory scheme] will be in loosening restraints
when justified. A scheme that is directed only to wards tighter
and tighter controls will, in time, lose its most important attributes,
flexibility, and the capacity to adjust to changing social circumstances.
But flexibility is hard to achieve under the act. A drug that
is illegal for doctors to prescribe cannot possibly have a medical
use that is accepted. Nearly half of the cancer specialists responding
to a questionnaire answered that they would prescribe marijuana
if it were removed from Schedule I.
it is not clear that this poll shows that marijuana has an
accepted medical use. Thus the debate about how a drug gains or
loses an "accepted medical use" remains unresolved.
Deciding whether a drug has or lacks a medical use has turned
out to be a quagmire. But applications of criterion (A) in Schedules
I-V are even more troublesome. This criterion, which requires
a determination of a drug's potential for abuse, is perhaps the
most important basis for deciding where a given drug should be
scheduled. A drug with a "high potential for abuse"
will be placed on Schedule I or II (depending on whether it has
a medical use), and drugs with a "low potential for abuse"
relative to those on Schedules I or II will be placed on successively
higher schedules. How is the relative potential for abuse of a
drug to be ascertained? The act does not define "abuse"
or "high potential for abuse," although attempts to
challenge the constitutionality of the act for this reason have
The legislative history of the Controlled Substances Act reveals
the following four guidelines to identify the extent of a drug's
potential for abuse:
(1) There is evidence that individuals are taking the drug...
in amounts sufficient to create a hazard to their health or
to the safety of other individuals or of the community; or
Although these guidelines are helpful, many problems remain.
(2) There is significant diversion of the drug... from legitimate
drug channels; or
(3) Individuals are taking the drug... on their own initiative
rather than on the basis of medical advice from a practitioner
licensed by law to administer such drugs in the course of his
professional practice; or
(4) The drug or drugs... are new drugs so related in their
action to a drug or drugs already listed for having a potential
for abuse to make it likely that the drug will have the same potentiality
First, notice that these guidelines only address whether a drug
has some potential for abuse but do not speak to the more
difficult question of how to measure the extent of this
potential. Unless the degree of the potential for abuse can be
quantified, no drug can be assigned to a particular schedule.
Only guideline (4) provides a basis of comparison. Pursuant to
(4), a new drug should be placed on a schedule by estimating its
potential for abuse relative to drugs that are already scheduled.
Of course, this approach is sound only if the drugs in the comparison
class have been scheduled properly. Without understanding how
the relative potential for abuse is to be measured, it is impossible
to know if the drugs already scheduled have been placed correctly
or incorrectly. In short, the entire scheduling process lacks
Moreover, practically any "drug or other substance"
will be abused by some persons to some degree at some time or
another. Very curious results can be produced by temporarily suspending
the pretense that the act controls drugs rather than substances.
From all that has been said so far, nothing would preclude placing
chocolate on Schedule I.
But problems remain even if applications of the act are restricted
to drugs. These guidelines fail to specify whether a potential
for abuse becomes high because a great percentage of users abuse
the drug a little, or because a small percentage abuse the drug
a lot. Judicial interpretations of the act indicate that the latter
circumstance suffices to allow a drug to be placed on Schedule
I or II. Evidence that a few users have required treatment in
hospital emergency rooms has helped to persuade courts that a
drug belongs on Schedule I, even though those who require emergency
care may represent a tiny fraction of the total number of users.
As a result, the act has the effect of sacrificing the interests
of the (perhaps overwhelming) majority of persons who use a drug
without undue hardship to promote the interests of the (perhaps
small) minority of persons who use a drug abusively. Perhaps this
sacrifice of the many for the sake of the few can be justifiedI
will return to this issue laterbut it cannot be taken for granted.
In addition, guideline (3) seemingly identifies any nonmedical
use of a drug as abuse. The very act of taking a drug for a nonmedical
reason constitutes abuse and allows the drug to be regulated under
the act. Some commentators appear to go so far as to define
drug abuse in terms of recreational use.
this perspective, the suggestion that drugs have a nonmedical
use is incoherent, and not merely false. Understanding how a drug
might properly be used recreationally is no easier than understanding
how a square could be round.
A final difficulty in interpreting (A) in Schedules I-V is that
the placement of a drug depends on its potential for abuse.
The scheduling of a drug need not wait "until a number of
lives have been destroyed or substantial problems have already
But how is the potential
for abuse of a given drug to be determined in the absence of evidence
of actual abuse? Some commentators have argued that the "strong
euphoria" produced by a given drug "suggests a high
In other words,
a drug is subject to great abuse simply because it is a lot of
fun to use. The finding that a drug produces pleasure is all that
is required to subject it to the most stringent controls under
In any event, difficulties in scheduling a particular drug turn
out to be irrelevant for purposes of answering my central question.
Adults have no legal right to use a drug recreationally, regardless
of where it is scheduled. Even more significantly, the extent
of punishment for illegal possession, and thus for use, does not
change with the scheduling of a drug. "Simple unlawful possession"
of any controlled substance is punishable by "a term of imprisonment
of not more than one year, a fine of not more than $5,000, or
Under federal law, unlawful
possession of heroin is punished no more severely than is possession
of a Schedule V substance without a prescription.
Perhaps the difficulties in interpreting and applying these statutory
criteria should come as no surprise. Political factors having
nothing to do with the harm or likelihood of abuse of a drug have
clouded the act since it was drafted. According to David Musto,
"The history of drug laws in the United States shows that
the degree to which a drug has been outlawed or curbed has no
direct relation to its inherent danger."
very creation of Schedule I was partly due to the efforts of manufacturers
and distributors of "legitimate" substances to ensure
that their products were not classified along with illicit drugs.
I hope to have cast doubt on the accuracy of Moore's description
of LAD as "rational." Nonetheless, my central concern
has not been to expose the deficiencies of the Controlled Substances
Act. I have explored the terms of this act primarily because the
criteria for inclusion on the statutory schedules provide the
state's answer to the question: What properties must a drug possess
before adults have or lack a right to use it recreationally? The
answer to this question is now apparent. Except for the ad hoc
statutory exemptions for tobacco and alcohol, the recreational
use of drugs is totally proscribed. This result follows from two
related strains of thought. First, since recreational use is nonmedical,
a drug is subject to prohibition on this ground alone. Even if
a given drug has a medical use, its consumption for recreational
purposes constitutes abuse. Second, since the effects of a drug
must be enjoyable before anyone would want to take it recreationally,
the use of a drug to produce pleasure is tantamount to abuse,
again making that drug eligible for prohibition. Therefore, it
is impossible to imagine a drug that anyone would want to use
recreationally that would be permitted for such a purpose under
the Controlled Substances Act.
These extraordinary results can hardly be described as "rational"
inasmuch as they express an unreasonable prejudice against recreational
drug use per se. It is unthinkable that any other activity would
become eligible for harsh punishment solely because it is euphoric.
Ordinarily, the discovery that an activity produces pleasure would
be an occasion for celebrationunless that activity involves
drug use. Why should the fact that a drug is pleasurable but lacks
a medical use be a sufficient reason to prohibit it for recreational
Understanding the terms of the Controlled Substances Act has proved
to be difficult. Moreover, problems go beyond statutory interpretation.
My final observation about this act is perhaps the most important,
as it raises constitutional questions about legal prohibitions
of recreational drug use.
Challenges that a particular drug should not be controlled at
all, or that it should be placed on a different schedule, are
typically adjudicated according to the "rational basis test."
According to this test, "those challenging the legislative
judgment must convince the court that the legislative facts on
which the classification is apparently based could not reasonably
be conceived to be true by the governmental decision-maker."
The judge must determine "whether there
exists any set of facts which can be shown or which could reasonably
be assumed to provide support for the classification selected
The application of
this test results in near-absolute deference to legislative judgments;
rarely have plaintiffs prevailed in showing that a rational basis
for a legislative determination is lacking. Judges have almost
never upheld challenges to the legal classification of a drug,
despite enormous dispute about its dangerousness and considerable
vagueness in the statutory scheme.
Courts seldom subject legislative regulation of drugs to heightened
levels of scrutiny. They have declined to apply the demanding
"compelling state interest" test to assess challenges
that a given drug should be placed on a different schedule or
should not be controlled at all. According to this test, a law
is unconstitutional unless it is "necessary, and not merely
rationally related, to the accomplishment of a permissible state
If this test were applied,
courts would be forced to decide whether a less restrictive alternative
might better achieve whatever objectives are sought by LAD. To
make this determination, the objectives of LAD would have to be
identified. These issues need not be confronted as long as the
rational basis test is applied.
Applications of the rational basis test make hard cases seem easy.
Consider the all-too-familiar conflicts about smoking cigarettes
in public places. One might think that these conflicts pit the
"right to smoke" against the "right to breath clean
air." If so, the conflict cannot be resolved without some
procedure to decide which right is entitled to a greater degree
of protection. According to Robert Goodin, the rights of nonsmokers
take precedence. Goodin does not categorically reject the existence
of a right to put a substance into one's body. Yet he maintains
that "there is no larger social interest of free speech or
any other to be served by allowing [smoking]."
rationale for curbing smokers is no different from the basis for
regulating "smelly factories."
fact that smokers may enjoy smoking does not count for very much.
Although I have little quarrel with his conclusion, I suspect
that Goodin reaches it too easily. The right to put a substance
into one's body should not be weighted so lightly.
Occasionally courts have invoked standards of review that are
intermediate between the rational basis and compelling state interest
tests. In Ravin v. State, the most noteworthy case to invoke
an intermediate test, the Alaska Supreme Court held that "the
right to privacy would encompass the possession and ingestion
of substances such as marijuana in a purely personal, non-commercial
context in the home."
was reached by applying a test of constitutionality that required
courts to decide "whether the means chosen suitably furthered
an appropriate governmental interest."
a result of applying this intermediate test, the private use of
an illegal recreational drug was held to be protected by a constitutional
right in the state of Alaska. Because this decision was so controversial,
voters have recently sought to overturn it through the process
of initiative and referendum.
Constitutional law requires that statutory classifications with
a disproportionate impact on race must be subjected to strict
scrutiny. Until recently, this rationale for applying a heightened
level of judicial review seemed to have little application to
LAD. However, many states have begun to treat possession of crack
as a more serious offense than possession of identical amounts
of powdered cocaine. Since blacks are more likely to use crack
than powdered cocaine, they tend to be punished more severely
than whites. This disparity led a judge in Minnesota to subject
that state's crack statute to strict scrutiny. As a result, she
overturned this law until scientific rather than merely anecdotal
evidence establishes that crack is a different and more dangerous
drug than powdered cocaine. Her ruling was upheld by the Minnesota
Supreme Court, which said it found little hard evidence to support
a distinction between the two substances.
But these examples represent the exception rather than the rule.
Why have heightened degrees of scrutiny been applied so infrequently?
The Supreme Court has never provided a coherent explanation of
the characteristics that trigger higher levels of judicial review.
Infringement of "important" or
"fundamental" rights or interests usually gives rise
to stricter scrutiny.
to assess questions about recreational drug use according to more
exacting tests indicates that personal decisions about recreational
drug use are not thought to be protected by an important or fundamental
Why are whatever rights may be involved in recreational drug use
regarded as so insignificant? Sometimes a policy or practice is
so familiar and widespread that it becomes all but impossible
to return to a state of innocence and to imagine how strange and
peculiar it would appear from the perspective of an outsider.
Suppose that a person who did not have a particular issue in mind
were asked to prepare a list of general rights that are most important
or fundamental in a free society. General rights that could easily
be interpreted to protect recreational drug use would be prominent
on this list. One such right is the right to determine what happens
in and to one's body. Another such right is the right to regulate
the ways in which the mind processes the sensory data it receives
from the world. According to Laurence Tribe it would seem "preposterous"
that courts would allow the state to regulate these rights without
applying heightened standards of review. Yet, he adds, "Courts
that affirm the power of government to ban the use of such psychoactive
substances as marijuana appear to be saying something very much
Almost no one seems to have cared. As Ethan Nadelmann points out,
"Even the civil-liberties groups shy away from this issue."
It is easy to interest the American Civil
Liberties Union (ACLU) in the question of whether adults should
be tested for drug use. But ACLU has little interest in the question
of whether and under what circumstances adults should be allowed
to use recreational drugs in the first place. These priorities
are misplaced. Surely the best reason to oppose drug tests is
because adults have a moral right to engage in the very activity
the tests are designed to detect.
Suppose that the state were to interfere with various applications
of whatever rights are implicated by LAD. Imagine that the state
attempted to regulate dress by forbidding anyone to wear high
heels. Or that it attempted to regulate appearance by prohibiting
anyone to grow long hair. Compound the difficulty by supposing
that these interferences purported to reach private citizens,
not just public employees. Even worse, imagine that these regulations
applied in the home. In other words, suppose that high heels or
long hair were proscribed, even if offenders did not appear in
public. It seems clear that the state would need excellent reasons
to enact such general legislation and that courts should be encouraged
to scrutinize these reasons very carefully. These interferences
affect rights that should be placed high on a list of protections
in a free society. Why is recreational drug use any different?
In Chapter 2, I will explore whether a theory of personal autonomy
can be defended that would entitle recreational drug use to a
lesser degree of protection than the activities on this list.
For better or worse, the constitutionality of hypothetical statutes
that interfere with decisions regarding dress or appearance, in
public or in private, will remain unsettled as long as states
do not intrude in these matters. Little constitutional law has
developed here precisely because these regulations are so outlandish.
Most of the few existing precedents involve attempts to interfere
with the dress and appearance of schoolchildren. My examples,
however, involve regulations of private citizens that apply even
in their own homes. Sometimes, but not always, the fact that laws
regulate behavior in the privacy of one's home is constitutionally
significant. In numerous cases, courts have held that persons
have a right to do in private what they are not permitted to do
in public. Surely dress and appearance are entitled to a greater
degree of protection in private than in public, and one might
naturally expect the same to be true of recreational drug use.
I do not mean to prejudge how such cases ultimately should be
decided. To propose that a given test of constitutionality is
appropriate for deciding a case is not tantamount to actually
deciding it. My more modest point is that the constitutionality
of these laws would and should depend on the stringency of the
standard of review by which they are adjudicated. Suppose that
the rational basis test, which is presently applied to regulation
of drug use, were applied to the hypothetical laws just discussed.
It is easy to see why a state might have a rational basis for
regulation of dress or appearance. According to Tribe, "History
abounds with examples of governments asserting virtually boundless
authority over the details of personal appearance and manners."
On the streets of our cities, persons are
sometimes killed for their sneakers or leather jackets. Suppose
that the state responded by prohibiting persons from wearing these
clothes. These laws might be constitutional if plaintiffs were
required to show that "the legislative facts on which the
classification is apparently based could not reasonably be conceived
to be true by the governmental decision-maker." Surely "there
exists [a] set of facts which can be shown or which could reasonably
be assumed to provide support for the classification." But
interferences with dress or appearance should not be accepted
uncritically in a free society.
I do not conclude that an interference with recreational drug
use is as objectionable as an interference with dress or appearance.
However, I maintain that the larger rights that are implicated
by each of these interferences seem to be of comparable importance,
so that the same test should be applied to decide their constitutionality.
Dress and appearance are and ought to be subject to regulation.
The state routinely controls these matters when students, military
personnel, police, and fire fighters are involved. Such regulation,
however, should be made to satisfy very stringent criteria. The
same stringent criteria should be applied to assess the justifiability
of interferences with recreational drug use.
It is unclear whether the objectives sought by LAD could satisfy
the more stringent criteria of constitutionality involved in heightened
levels of scrutiny. This issue has not been resolved, because
the state has been allowed to interfere with the right of adults
to use the recreational drug of their choice according to a more
lenient standard. What is clear is that plaintiffs would have
much greater prospects for success in challenging classifications
under the Controlled Substances Act if their allegations were
assessed according to a more demanding test.
Despite the fact that these questions about the Controlled Substances
Act raise important constitutional difficulties, I will not further
pursue the constitutional dimensions of LAD. Although I am centrally
concerned to evaluate arguments for and against the claim that
adults have a moral right to use drugs recreationally, I will
not attempt to elevate these arguments to the plane of constitutional
law. Moral rights should be protected by legal rights, so the
existence of a moral right to use recreational drugs would provide
an excellent reason to oppose LAD. Still, I will make no serious
attempt to argue that any such legal right can be "found"
in the Constitution. I am not especially concerned about whether
a moral right to use drugs recreationally should be vindicated
ultimately by the legislature or the Court.
I have several reasons for not undertaking a more detailed examination
of these constitutional issues. First, David Richards has already
made a powerful case that many aspects of LAD are unconstitutional.
Although I am suitably impressed by Richards's
arguments, the weaknesses of his position are apparent as well.
The Constitution makes no explicit reference
to drug use. If recreational drug use is entitled to constitutional
protection, some existing right must be interpreted to protect
it. The right to privacy is the most likely candidate for this
constitutional right. Thus two conditions must be satisfied before
recreational drug use is entitled to constitutional protection.
First, the Constitution must create a right to privacy. Second,
this right to privacy must apply to and protect the right to use
some or all recreational drugs.
Neither proposition is beyond controversy. Largely because of
the abortion dispute, the very existence of a right to privacy
continues to be debated by scholars of constitutional law. The
application of any such right to the decision to use recreational
drugs is equally unclear. Many different conceptions of the right
to privacy have been defended, and only some of them would protect
recreational drug use. The Supreme Court seems currently disposed
to reject the right to privacy altogether or, more likely, to
confine its scope to decisions pertaining to marriage, procreation,
and the family.
An extended critical
discussion of these issues would take us too far afield. I hope
that the arguments I will make in favor of a moral right to use
recreational drugs can be expressed in constitutional terms, but
I will make no serious effort to do so here.
Still, I cannot refrain from adding one brief twist to the constitutional
arguments involving recreational drug use. Many of the social
conservatives who are least sympathetic to the decriminalization
movement favor a "jurisprudence of original intent."
According to this principle of interpretation, the Constitution
is to be construed according to the intentions of its drafters.
A jurisprudence of original intent is favored largely because
it tends to generate results that are congenial to the agenda
of social conservatives. For example, the founding fathers tended
to be less liberal about most matters of criminal procedure. However,
this jurisprudence may produce unacceptable results for drug prohibitionists.
Thomas Jefferson was not alone among the founding fathers in opposing
state authority to prohibit the use of drugs, medical or otherwise.
"Was the government to prescribe to us our medicine and diet,"
he observed, "our bodies would be in such keeping as our
souls are now [under the state church]."
control over drug use was widely regarded as unconstitutional
as late as 1900.
Even in 1937, the Treasury
Department prohibited marijuana separately from narcotics because
it feared an attack on the constitutionality of the Harrison Act.
An effort to apply the original intent of
the founding fathers might create surprising difficulties for
RECREATIONAL DRUG USE
No one pretends that drugs are good or bad per se. Trying to decide
whether drugs are good or bad is like trying to decide whether
fires are good or bad: It depends on the purpose(s) for which
they are used. As the examination of the Controlled Substances
Act demonstrates, war has not really been declared on drugs.
War has been declared on persons who make a certain use
of drugs. I will describe this use as recreational. By
"recreational use," I mean consumption that is intended
to promote the pleasure, happiness, or euphoria of the user.
The more specific purposes that are encompassed
under this broad umbrella include sociability, relaxation, alleviation
of boredom, conviviality, feelings of harmony, enhancement of
sexuality, and the like. Although borderline cases are numerous,
paradigm examples of recreational drug use are plentiful. Interviews
with users indicate that they are most likely to consume drugs
on two general occasions. First, they use drugs to attempt to
improve what they anticipate will be a good time. Hence drug use
is frequent during parties, concerts, and sex. Second, they use
drugs to attempt to make mindless and routine chores less boring.
Hence drug use is frequent during house cleaning and cooking.
I regard these as paradigm examples of recreational use.
The distinction between recreational and nonrecreational drug
use does not purport to sort drugs into categories based
on their pharmacological properties. Instead, this distinction
sorts drug use into categories. The claim that a given
drug is "recreational" can only mean that it is typically
used for a recreational purpose. More precisely, "recreational
drug" is elliptical for "drug that is used recreationally."
Any drug can be, and probably has been, used for almost any purpose.
The concept of recreational use can be clarified by contrasting
it with other purposes for using drugs. The most familiar nonrecreational
reason to use drugs is medical. Although most drug use is either
recreational or medical, these categories do not begin to exhaust
the purposes for which drugs are consumed. Some persons take drugs
for the explicit purpose of committing suicide. Others take drugs
ceremonially, in the course of religious rituals. Still others
take drugs in order to enhance their performance in competitive
sports. Undoubtedly this list could be expanded, but I will make
no attempt to provide a comprehensive account of the many reasons
for using drugs.
I have two general reasons for focusing on recreational drug use
in inquiring whether and under what circumstances adults have
or lack a moral right to use drugs. I have already mentioned the
first reason. Different justificatory issues arise depending on
the purpose for which drugs are consumed. Personal attitudes toward
drugs are incomprehensible without attempting to distinguish between
legitimate and illegitimate uses. I will evaluate arguments for
and against the moral right to use drugs recreationally; I will
have little to say about the possible justifications for nonrecreational
Second, I hope to avoid commitment on dubious empirical claims
that have been made about the benefits of drug use. Anecdotal
evidence from members of the "drug culture" suggests
that nonmedical drug use may contribute to a variety of purposes
that any reasonable person would concede to be valuable. Drugs
have been alleged to foster creativity, increase self-awareness,
promote artistic inspiration, and the like. Andrew Weil is among
the earliest defenders of this point of view. Tired of hearing
"users rambling on about the purely hedonistic aspects of
drug experience," Weil sought to set the record straight
by describing how "altered states of consciousness have great
potential for strongly positive psychic development."
He proceeded to elaborate upon these alleged
benefits in great detail.
Some critics of LAD believe that the pendulum may have swung too
far in the other direction. Bruce Alexander claims that "the
rhetoric of the resisters [in the war on drugs] celebrates, and
typically overstates the virtues of drugs in personal development
Many an insight one
had judged profound while intoxicated turns out to be less impressive
when evaluated while sober. Perhaps the claims made by Weil are
true, or perhaps they are false. In either event, my arguments
in favor of the moral rights of adult drug users will not depend
on them. The arguments I will evaluate allege no greater benefits
of drugs than that many users regard them as enjoyable. This benefit,
I think, is virtually immune from empirical falsification. If
users sincerely believe that drugs are pleasurable, no empirical
evidence is likely to prove otherwise.
For reasons that are deep and mysterious, many persons become
apologetic and defensive about arguing in favor of a right to
engage in an activity simply because it is pleasurable. Apparently
the pursuit of fun is perceived to be so shallow and trivial that
many persons feel obliged to find some other basis to defend their
choice. Suppose that someone challenged whether the state should
permit adults to engage in a given dangerous activity, such as
skiing. According to the line of thought I reject, skiing should
not be defended because it is exhilarating but because of some
tangible benefit it produces. For example, a defense might appeal
to the cardiovascular advantages of skiing. However, this strategy
divorces the justification of the activity from the reason why
most person perform it. Persons would continue to ski, and would
oppose state interference, even if skiing did not increase their
fitness. Many skiers would resort to cardiovascular benefits as
a pretext to publicly criticize what they would privately resist
for wholly different reasons.
Nowhere is this peculiar tendency to attach nonrecreational defenses
to recreational pursuits more evident than among drug users. Many
express guilt about their indulgence, insist that they use drugs
only for "serious" purposes, and show disdain for those
who want to get "high" and experience only the sensual
effects of drugs.
But the production
of euphoria should not be regarded as an insignificant benefit.
Even if illegal drug use does nothing more than induce immediate
gratification, good reasons would be needed to prohibit it. If
drug use happens to produce more profound advantages, the case
against LAD is that much stronger.
Only rarely do authorities acknowledge that the euphoria of recreational
drug use might be valuable. A federal district court judge, Robert
Sweet, shocked his colleagues by calling for the decriminalization
of all illicit drugs. After reciting some of the cost-benefit
advantages of decriminalization, he continued: "Cocaine gives
a sense of exhilaration, heroin a glow, a warmth, and marijuana
a sense of relaxation and ease. What then is wrong?"
Nonetheless, my attempt to confine the context of discussion to
the recreational use of drugs is not entirely unproblematic. Weil
has challenged the viability of distinctions between the several
purposes for which drugs apparently are consumed. He claims that
"the desire to alter consciousness periodically is an innate,
normal drive analogous to hunger or the sexual drive."
The "omnipresence of the phenomenon"
of drug use in various societies throughout human history has
led him to conclude that "we are dealing... with a biological
characteristic of the species."
that satisfies a biological need cannot be understood as a purely
recreational form of activity, comparable to scuba diving or mountain
More recently, a variation of this basic theme has been developed
by Ronald Siegel. Studies of animal behavior persuade him that
"we must expand the definition of self-medication to include
drug use for purposes of intoxication."
believes that even the most dangerous of intoxicants really function
He contends that the distinction
between medical and nonmedical drug use should be dissolved in
favor of conceptualizing drugs as "adaptogens," defined
as "substance[s] that help people to adjust to changes in
their physical or physiological environments."
Siegel denies a principled distinction between the use of "esterene,
to alleviate the pain and depression of arthritis," and the
use of "heroin, to fight the gloom and despair of consciousness."
The majority of Americans who do not question the legitimacy of
the war on drugs will surely dismiss these remarks out of hand.
Yet these attacks on the traditional distinction between medical
and nonmedical drug use are stubbornly resistant to a quick refutation.
A plausible criterion of medical use is easy to state: The use
of a drug is medical if it is intended to treat a disease, illness,
injury, or other interference with normal functioning. But this
criterion is less easy to apply. Difficulties in determining whether
a given incidence of drug use is medical result from uncertainty
about whether the condition for which a drug is taken qualifies
as a disease, illness, injury, or other interference with normal
functioning. An attempt to identify drug use as medical by reference
to the standard practice of doctors is obviously inadequate to
meet Siegel's challenge. Siegel would demand a deeper explanation
of how doctors make their decisions. Drug use does not become
medical because of what doctors do; rather, doctors do what they
do because of some characteristic(s) in virtue of which their
use of drugs qualifies as medical.
Millions of Americans consume caffeine in order to combat drowsiness
and lethargy, or drink alcohol in order to relax and relieve stress.
As a housewife lamented: "I have four children and a house
to clean. I couldn't get through the day without Dexedrin."
Can any of the conditions that lead these
Americans to consume drugs be construed as a disease, illness,
injury, or other interference with normal functioning, so that
their drug use can be labeled as medical rather than as recreational?
The answers to these questions may seem simple. Neither doctors
nor the public would classify moderate lethargy or stress as medical
conditions. But it is precisely these judgments that need to be
reevaluated. In the absence of a theory about disease, illness,
injury, or abnormality, there is no firm basis to decide whether
the use of a substance is medical. A narrow conception of "normal
functioning" will expand the range of medical drug use and
shrink the range of recreational drug use proportionately. As
James Bakalar and Lester Grinspoon argue:
When we talk about the dangers to health caused by drugs, we tend
to use the broadest possible definition of health to justify the
strongest restrictions. When we establish legitimate purposes
for using drugs, of which health is obviously one, we try to define
health narrowly so that again we can justify severe restrictions.
Health as positive libertytotal well-beingis a legitimate
reason for banning drugs but not for using them.
If the perspectives taken by either Weil or Siegel are correct,
a critical examination of the moral right to use recreational
drugs becomes both too difficult and too easy. On the one hand,
it seems clear that the war on drugs must be completely rethought
if all drug use is medical and responsive to a biological drive.
The state should not be in the business of frustrating the satisfaction
of innate needs. On the other hand, these positions are of no
help in evaluating the reason why many people at least claim to
use drugs. It is one thing to consume drugs to combat the alleged
"gloom and despair of consciousness," but what is to
be said about the drug use of adults who do not regard life as
so dismal? Those who support their drug use because it is euphoric
are unlikely to be thankful for a defense that construes their
behavior as responsive to an underlying pathology. Thus I will
continue to discuss the moral and legal questions that arise in
recreational drug use. I propose to evaluate the justifiability
of laws prohibiting adults from using drugs for the express purpose
of increasing their pleasure or happiness.
Undoubtedly my focus on recreational drug use will give rise to
the criticism that my approach is academic, middle class, and
unresponsive to the realities of drug use in impoverished neighborhoods.
Drug use in ghettos, it will be said, is not recreational. The
less fortunate members of our society do not use drugs to facilitate
their enjoyment at concerts but to escape from the harsh realities
of their daily lives. Here, at least, gloom and despair play a
central role in explaining the high incidence of drug use.
In fact, the black community has expressed little enthusiasm either
for the war on drugs or for drug decriminalization.
theorists who favor one approach or the other divide, sometimes
bitterly, over the implications of decriminalization for the lower
classes. According to Nadelmann, "The minority communities
in the ghetto" would be "the greatest beneficiaries
of repealing the drug laws."
theorists reach the opposite conclusion. Since drug use is a "mode
of adaptation" to the "disadvantages of ghetto life,"
James Inciardi and Duane McBride contend that drug legalization
"would be a nightmare" for the underclass.
express their verdict in the strongest possible terms: "The
legalization of drugs would be an elitist and racist policy supporting
the neocolonialist views of underclass population control."
Several replies to this criticism should help to defend my focus
on recreational drug use. First, I explore decriminalization as
a means to protect moral rights, not as a policy to improve conditions
in ghettos. The utilitarian tone in which this debate is usually
cast ignores the perspective of the individual. Members of lower
classes have rights too. If they choose to use drugs to help make
their desperate situation more bearable, members of privileged
groups should be uncomfortable about telling them that they may
not. No one proposes to ban alcohol because members of lower classes
tend to drown their sorrows rather than to sharpen their palates.
Moreover, a strategy of decriminalization should not be advocated
as a substitute for redressing the genuine grievances of minorities.
Finally, the empirical facts are ambiguous in proving that illegal
drug use is a special problem for the black community.
20 percent of all illegal drug users are black.
are more likely than blacks to have tried illegal drugs, and cocaine
in particular, at some time in their lives.
more drug prohibitionists succeed in portraying drug use as a
ghetto phenomenon, born of frustration and despair, the easier
it is to lose sight of the repudiation of liberal values that
LAD entails. As I will emphasize time and time again, too much
of our policy about illegal drug use is based on generalizations
from worst-case scenarios that do not conform to the reality of
typical drug use. I hope to undermine the inaccurate stereotypes
of drug use and drug users reinforced by this objection. LAD prohibits
drug use by members of all races and classes; a legal policy applicable
to all should not be based on the perceived problems of a few.
THE DECRIMINALIZATION MOVEMENT
Intelligent opposition to the war on drugs is increasingly heard.
Academics, insulated from political pressure by the tenure system,
have been more vocal in questioning the drug war than public officials,
who remain accountable to voters. Nonetheless, a few politicians,
including Kurt Schmoke, mayor of Baltimore, and George Schultz,
former secretary of state, have joined Nobel economist Milton
Friedman and conservative pundit William Buckley in advocating
the decriminalization of some or all illegal drugs.
The decriminalization movement brings together strange allies
who are far apart in their political ideologies. Despite fundamental
differences, almost all decriminalization theorists begin from
the same premise: America is losing the war on drugs. Our approach
to the drug problem is ineffective and counterproductive. It has
not and will not succeed, and it actually compounds many of the
problems it is designed to solve. Since I hope to shift the focus
away from utilitarian arguments to issues of principle, I will
only summarize the allegations of decriminalization theorists
here. In subsequent chapters, I will return to several of their
criticisms insofar as they have a bearing on the questions of
whether and under what circumstances adults have a moral right
to use drugs recreationally.
The first of two related themes that run through the decriminalization
literature is that the war on drugs is and always will be futile.
Many theorists who defend this conclusion begin (and sometimes
end) by stressing economic considerations. They argue that most
of the tens of billions of dollars spent by the criminal justice
system to enforce LAD has been wasted. Despite the numbers of
drug traffickers arrested and the volumes of contraband seized,
the supply of drugs available to consumers, as reflected by street
price, remains relatively unchanged. Nadelmann's conclusion is
especially pessimistic: "Criminal justice efforts to stop
drug trafficking... have little effect on the price, availability,
and consumption of illicit drugs."
saving billions of dollars currently squandered in law enforcement,
the decriminalization of illegal drugs would bring additional
economic rewards. Depending on the price of legalized drugs, their
sale could allow the state to collect vast tax revenues.
Attempts to curtail the supply of illegal drugs are bound to fail.
Efforts to eradicate production are doomed because of what has
been called the "push down, pop up" effect: As drug
supplies are destroyed here, they reappear there. The prospects
for marked improvement in the interdiction of imported drugs are
remote and unrealistic. Because of the "needle-in-a-haystack"
phenomenon, commentators estimate that only about 10 percent of
imported marijuana and cocaine is seized.
much of what is interdicted is replaced, administration officials
admit that imports of cocaine have not been reduced by more than
No one thinks that our overmatched
customs agents can do much better. In any event, improvements
would probably accomplish little. Even dramatic increases in source
control and interdiction would have a limited impact on the price
and purity of drugs.
Somewhat more success has been achieved by curbing demand. Despite
reports of unprecedented availability of cocaine, the percentage
of high school seniors who used cocaine in 1990 tumbled to its
lowest level since 1976.
appetite for drugs has steadily declined throughout the last decade,
although there is room for disagreement about the extent to which
law enforcement has contributed to this trend. The use of legal
drugs, most notably tobacco, has decreased noticeably with little
input from the criminal justice system.
The second theme that runs through the writings of the decriminalization
theorists is that the war on drugs has been counterproductive.
Many commentators claim that the evils of criminalization are
greater than the evils of drug use itself, so that the "cure"
of law enforcement is worse than the "disease" of drug
use. I will briefly describe fifteen of their more specific allegations;
I will not quibble about whether this list should be lengthened
1. The drug trade has created enormous opportunities for organized
crime. The billions of dollars spent in law enforcement have been
described as a "subsidy" for criminals.
report by Wharton Econometrics for the President's Commission
on Organized Crime identified the sale of illicit drugs as the
source of more than half of all organized crime revenues.
The involvement of organized crime has led
to well-publicized levels of violence that have become everyday
fare in the drug trade. Black marketeers have no recourse to legal
devices to enforce agreements and to settle disputes; they must
resort to force more often than competitors in legitimate businesses.
Some theorists predict that decriminalization will all but end
the extraordinary violence associated with the illegal drug trade.
According to James Ostrowski: "The day after legalization
goes into effect, the streets of America will be safer. The drug
dealers will be gone. The shootouts between drug dealers will
2. Enormous profits have made widespread corruption in law enforcement
all but inevitable. One "conservative estimate" is that
"at least 30 percent of the nation's police officers have
had some form of involvement with illicit drugs since becoming
employed in law enforcement."
motivation for succumbing to corruption will remain overwhelming,
as long as staggering sums of money are offered as an alternative
to risking one's life in ineffective efforts to prevent relatively
3. Many drugs tend to be expensive not because of their production
costs, but because of their illegality. According to one estimate,
the price of heroin is approximately two hundred times greater
than it would be under a free market of supply and demand,
and cocaine is perhaps twenty times more
As a result, many users
commit property offenses in order to obtain money to buy drugs.
Legal drugs would be cheaper, so users would
be less likely to commit crimes to purchase them.
4. Removal of the enormous profits in the sale of illegal drugs
might motivate persons to better prepare themselves to make an
honest living. Adolescents are not easily persuaded to gain an
education or to learn a skill when they believe, whether correctly
or not, that drug trafficking provides an easy opportunity for
instant wealth and prestige. Obscene drug profits have made a
mockery of the work ethic.
of a lucrative black market for drugs may have contributed more
to a deterioration in education than the effects of drugs themselves.
5. Illegality has had a pernicious impact on the supply and mode
of ingestion of illegal drugs. According to what one commentator
describes as the "iron law of prohibition,"
potency of illegal drugs is increased to the greatest possible
level in order to reduce the size of the container and the risks
of interdiction. The average purity of a gram of cocaine has allegedly
increased from about 12 percent to 60 percent since 1980, at the
same time that the potency of most alcoholic beverages in America
The so-called cocaine
and crack epidemics have been blamed on the government's modest
success in interdiction. Less harmful drugs, such as marijuana,
happen to be bulkier and easier to intercept than more harmful
drugs, such as cocaine, so suppliers switched production in an
effort to evade detection. In addition, illegal drugs are used
in more harmful ways because they are so precious. According to
John Kaplan, the injection of opiates is virtually unknown in
Asian countries, where supplies are easily obtainable and less
6. Prohibition may glamorize drugs by creating the "forbidden
fruit" phenomenon. Illegality stimulates curiosity and desire,
especially among persons who regard themselves as unconventional
and rebellious. As Jon Gettman explains the decline in use after
the de facto decriminalization of marijuana in the Netherlands,
"Decriminalization of marijuana makes marijuana boring."
7. The interest in minimizing availability has discouraged illegal
drugs from being used for legitimate medical purposes. Lawyers
for the National Organization for the Reform of Marijuana Laws
(NORML) have failed to persuade the Drug Enforcement Agency to
transfer marijuana to a higher schedule, so that doctors may prescribe
it to patients suffering from debilitating diseases such as cancer,
glaucoma, and multiple sclerosis. Some theorists suggest that
the lack of opportunity to explore legitimate uses of controlled
substances is among the greatest casualties of the drug war.
8. The medical complications of drug consumption have been compounded
by criminalization. As Nadelmann points out, "Nothing resembling
an underground Food and Drug Administration has arisen to impose
quality control on the illegal drug market and provide users with
accurate information on the drugs they consume."
persons have smoked marijuana sprayed with paraquat and mixed
with even more dangerous substances, and heroin users have died
after injecting unexpectedly potent or impure supplies. Many of
these fatalities are avoidable, but publicizing safe ways of using
drugs is politically unacceptable during wartime.
addition, drug users are reluctant to seek treatment because of
the stigma of illegality. The night that basketball star Len Bias
died of heart failure after using cocaine, his friends, fearing
the police, waited until his third seizure before calling an ambulance.
9. Courts and jails have become clogged as a result of "get-tough"
policies toward drug offenders. The impact of drug offenses has
led a number of commentators to speak of a collapse of the criminal
justice system. Federal courts have become "drug courts,"
where narcotics prosecutions now account for 44 percent of all
criminal trials, up 229 percent in the past decade.
many jurisdictions, delays in criminal cases not involving drugs
or in the adjudication of civil disputes have become intolerable.
The number of Americans behind bars has recently exceeded the
one million mark and sets new records every day. Prisons cannot
be built fast enough to accommodate drug offenders. At last count,
forty state prison systems were operating under court orders to
reduce overcrowding or to improve conditions.
report by the National Council on Crime and Delinquency concluded
that "the current War on Drugs will overwhelm the nation's
correctional systems over the next five years."
sentencing under LAD may undermine efforts to combat violent crime.
As a result of overcrowding by nonviolent drug offenders, violent
criminals are less likely to serve long prison terms.
10. Disrespect for law has been fostered among the millions of
Americans who violate LAD annually. The long-term consequences
of this disrespect are speculative and impossible to measure precisely,
but no one should believe them to be trivial or unimportant. Hypocrisy
and double standards are corollaries of disrespect.
drug prohibitionists have lost credibility after having been exposed
as drug users. Yet President Bush downplayed the significance
of the former drug use of Clarence Thomas, who he named to the
Supreme Court, only weeks after the Court upheld a sentence of
life imprisonment without parole for the offense of drug possession.
11. A long history of misinformation and distortion about the
dangers of drugs has led wary users to become skeptical of the
accuracy of warnings conveyed by the medical establishment. Drug
prohibitionists have felt a need to exaggerate the dangers of
existing recreational drugs in order to justify their illegality.
Commentators have noted an "irreparable credibility gap between
users of drugs and drug experts" since the late sixties.
Consider the recent popularity of steroids,
performance-enhancing substances used by perhaps a quarter million
or more American youths. Despite ample warnings about their dangers,
82 percent of adolescent users disagreed with medical experts
who said that steroids pose long-term health risks, such as liver
and heart disease.
Perhaps the experts
are correct, or perhaps they are mistaken. But this climate of
distrust cannot be in the public interest. If a drug really is
harmful, one would hope that users would believe doctors who sound
the alarm. Decriminalization may help to produce more accurate
information about the real hazards of drug use.
12. Among the more serious effects of prohibition is discrimination
against the poor, who increasingly consume a higher and higher
percentage of illegal drugs. Although two-thirds of weekly drug
users in New York State in 1987 were white, 91 percent of the
persons convicted and sentenced to state prison for drug-related
offenses were either black of Hispanic.
treatment is frequently provided for middle- and upper-class users;
prison is the preferred mode of "treatment" for the
13. The foreign policy of the United States has suffered untold
damage from the war on drugs. In particular, our relations with
Central and South American governments have been distorted by
our drug policy.
All too frequently,
both sides in foreign drug wars are funded by U.S. dollars.
14. The enforcement of LAD has diminished precious civil liberties.
Defense lawyers openly acknowledge the "drug exception"
to the Bill of Rights.
complains that "martial law has been declared in our inner
15. Finally and most significantly, the war on drugs is counterproductive
in making criminals of tens of millions of Americans whose behavior
is otherwise lawful. Most drug users are lucky to escape detection.
Others are less fortunate. Countless numbers of offenders have
been forced to suffer long terms of imprisonment for violating
laws that may not be morally justified. Even those who are eventually
acquitted spend tremendous sums of time and money defending themselves
Many law enforcement officials who participate in this draconian
system have become demoralized. The U.S. district court judge
J. Lawrence Irving resigned rather than continue to impose harsh
mandatory punishments on petty drug offenders. He lamented: "I
can't continue to do itI can't continue to give out sentences
that I feel in some instances are unconscionable."
federal judge wondered whether in years to come he and his fellow
jurists will have to assert the "Nuremberg Defense""I
was only following orders"to justify the number of people
they are sentencing to prison for decades.
Surely this sizable litany of evils must trouble even the most
zealous drug prohibitionist. But do these harms outweigh the good
that the war on drugs can be expected to achieve in the foreseeable
future? Commentators disagree radically. Since an assessment of
the cost and benefits of drug policy requires clairvoyance as
well as a willingness to balance incommensurables, reasonable
minds can and do differ about whether the war on drugs is worth
The perspective of these decriminalization theorists is a valuable
supplement to my own. However, I do not rely on the conclusion
that criminalizing the use of many drugs is either ineffective
or counterproductive. Critics who insist that the war is futile
would be silenced if some clever new strategy could be devised
to change the existing ratio of costs and benefits. Would such
a discovery persuade these critics to shift their allegiance and
join the crusades of drug prohibitionists? If not, why not?
These rhetorical questions indicate that a cost-benefit attack
on LAD is necessarily incomplete. The preceding analysis fails
to address the war on drugs from the perspective of the adult
who wants to use drugs recreationally. The complaint of this individual
is not that drug prohibition is ineffective and counterproductive,
but that it violates moral rights. This issue is not simply different;
it is more basic than that raised by an examination
of costs and benefits. Few theorists prepare cost-benefit analyses
of issues involving moral rights. For example, no one inquires
whether television produces a net balance of costs over benefits,
as part of a movement to make watching television illegal. Why
not? Surely the answer cannot be that television obviously produces
a net benefit to society. A better answer is that persons have
a moral right to watch television, and cost-benefit analyses are
compelling arguments for criminalization only for those activities
unprotected by a moral right. If recreational drug use is protected
by a moral right, cost-benefit analyses for criminalization are
simply out of court.
In other words, the foregoing arguments lack the force of principle
that philosophers should want. Even if victory were possible in
the war on drugs, should victory be sought? This is the issue
of principle I propose to address.
ARGUMENTS FOR CRIMINALIZATION
Defenses of and attacks against arguments for decriminalization
have become so familiar that it is easy to forget that the burden
of proof should be placed on those who favor the use of criminal
penalties. When arguing about criminalization, most philosophers
begin with a "presumption of freedom," or liberty, which
places the onus of justification on those who would interfere
with what a person wants to do.
Although it is helpful to be reminded of the existence of this
presumption, I make no real use of it in what follows. The case
for or against LAD depends on which side has the better arguments;
there is no need to resort to a burden of proof in assessing this
controversy. In any event, a second and equally familiar presumption
cuts in the opposite direction. A "presumption in favor of
the status quo" allocates the burden of proof on those who
oppose any change in current laws against the use of recreational
drugs. No one has any clear idea about what weight to assign to
these "clashing presumptions."
this reason, it is probably unproductive to worry too much about
who should bear the burden of proof on this issue.
Arguments for criminalization are important to review, if only
to follow the advice of John Stuart Mill. Mill warned that even
a true opinion becomes held "as a dead dogma not a living
truth," unless it is "fully, frequently, and fearlessly
Even those who believe
that LAD is obviously justified can profit from a skeptical examination
of their position. Unfortunately, many of those whose commitment
to LAD is unwavering do not take Mill's recommendations to heart
and are unwilling to be drawn into the fray. Several are unhappy
when the issue of decriminalization is raised at all. In 1989,
the Select Committee on Narcotics Abuse and Control solicited
testimony from thirty-four witnesses who debated the pros and
cons of LAD. Michael Oxley, a member of this committee, echoed
the sentiments of several of his colleagues when he protested
that "the idea of legalization should not even be dignified"
with a hearing.
As Mill cautioned,
the absence of debate is the best guarantee that a viewpoint will
become a prejudice. Defenders of LAD have been spared the rigors
of Mill's test for too long.
Why is LAD thought to be justified? Theorists who uphold the status
quo in public debates seldom answer this question directly. Instead,
they are fond of challenging their adversaries to describe specific
and detailed decriminalization plans. Two of their more difficult
questions are as follows. First, would the system of prescriptions
for medical drugs survive the decriminalization of recreational
drugs? Second, who would supply legalized recreational drugs,
given the extraordinary potential for tort liability?
questions are important and troublesome. On the other hand, defenders
of LAD have not been especially forthcoming in describing how
victory in the war on drugs can be achieved at an acceptable cost.
John Lawn, former administrator of the Drug Enforcement Administration,
observes that "the real answer to the drug problem in the
United States today is not legalization. Character reconstruction,
not the dismantling of drug laws, is the answer."
no one has the slightest idea how to reconstruct character in
a free society. If put forward by decriminalization theorists,
this sort of "solution" to the drug problem would be
ridiculed as utopian and unrealistic.
A positive case for LAD is not equivalent to exposing weaknesses
in the opposing point of view. If those who support existing drug
legislation can be made to give a direct reply to the question
of why they believe LAD to be justified, they are likely to provide
different answers. The fact that several distinct responses are
offered to a single question may be evidence of ambivalence and
confusion. I am not especially interested in removing this confusion
by playing the devil's advocate. I do not believe that the following
discussion is useful only in producing better reasons than are
currently available for what is already known to be true. I will
conclude that a careful assessment of the moral arguments in favor
of LAD reveals a number of serious defects. Reasonable minds will
differ about whether LAD deserves support despite these defects.
But I hope at least to shake the confidence of those who believe
that the justification of LAD is straightforward and unproblematic.
How should one begin to decide whether a given criminal law is
justified? There is a surprising dearth of sound theoretical literature
on the issue of criminalization. Few commentators have attempted
to describe the conditions that must be satisfied before an activity
becomes eligible for punishment. In the absence of a sophisticated
theory to govern the criminalization decision, solutions to almost
every social problem are sought within the criminal justice system.
No one has produced a theory to show why the criminal justice
system should not be used to deal with any and all difficulties.
An unwillingness to criminalize an activity is misconstrued as
a denial that it is a problem at all. As a result, our state suffers
from a crisis of overcriminalization. Drug use has long been cited
among the best examples of the pernicious tendency to overutilize
a penal approach to social problems.
There is no agreement about even the most basic points involving
criminalization. For example, it may seem obvious that the criminal
law should not prohibit conduct that persons have a moral right
to perform. Individuals cannot deserve to be punished for exercising
their moral rights. Punishment is unjustified unless it is deserved.
If these basic tenets are true, those (legislators and judges)
who make the criminal law cannot afford to ignore moral debate.
Yet few of the most distinguished figures in the long history
of Anglo-American criminal theory have paid much attention to
moral philosophy. They have been more anxious to downplay, rather
than to develop, the connections between criminal law and moral
Against such a historical
background, moral rights are less likely to be respected by our
criminal law. I fear that this lack of respect has been shown
to adults who use drugs recreationally.
Another largely unexplored issue involves the degree of social
consensus that must exist before criminal legislation is justified.
Surely the criminal law should not be used if there exists a substantial
difference of opinion among citizens about the propriety of the
behavior to be punished. Perhaps the difficult question Whose
morality should the criminal law enforce? cannot be answered,
but it can be avoided by assuring that offenses are believed to
represent immoralities by the vast majority of adults within a
given jurisdiction. Reflection on the justification of punishment
supports this conclusion. Punishment is and ought to be stigmatizing;
it can succeed only if the conduct subjected to punishment is
widely regarded as morally wrong.
The application of these principles to LAD produces some disturbing
results. Those who support the status quo frequently point to
public opinion surveys that indicate that somewhere between 80
percent and go percent of Americans believe that illegal drug
use should continue to be criminalized.
these polls are even more useful to decriminalization theorists.
By either figure, at least 10 percent of Americansupwards of
twenty milliondo not accept LAD. Only 50 percent of high school
seniors (admittedly, the largest percentage yet) agree that marijuana
use "should be a crime."
the enthusiasm of those who support LAD is not especially deep.
In a recent survey, only 46 percent of all respondents "strongly
agree" with the statement that "all drug use is immoral
and should be illegal"; 15 percent "somewhat agree";
17 percent "somewhat disagree"; and 18 percent "strongly
It is absolutely unthinkable
that surveys of attitudes about any other laws enforced by severe
punishments would reveal as high a percentage of Americans who
are not emphatic about whether the use of the criminal sanction
is justified. No movement exists to decriminalize murder, manslaughter,
rape, arson, armed robbery, or any of the other handful of offenses
that give rise to punishments comparable to those imposed on drug
offenders. Although it is hard to know exactly where lines should
be drawn, LAD seems to lack the overwhelming public consensus
needed to justify the heavy hand of criminal punishment.
I assume without much argument that a respectable defense of criminal
legislation must demonstrate that it is needed to prevent harm.
Everyone agrees that persons lack a moral right to cause harm,
so criminal laws that prohibit harmful conduct do not violate
the basic principles I have described. Punishment of a person
who causes harm can be justified by reference to the offender's
desert. But in the absence of harm, criminal sanctions are undeserved
The least controversial rationale in favor of criminalization
is that the conduct to be prohibited is harmful to others.
Many legal philosophers, following the lead of Mill, believe
that harm to others is a necessary condition that any criminal
law must satisfy in order to be justified. This position has been
defended most ably by Joel Feinberg, from whose work I will borrow
I will consider in Chapter
3 whether and to what extent LAD can be defended on the ground
that drug use is harmful to others. A more controversial rationale
in favor of criminalization is that drug use should be prohibited
because it is harmful to users themselves. Although a number
of philosophers are unsympathetic to this rationale, paternalistic
arguments in favor of LAD are frequently defended. I will take
these arguments seriously in Chapter 2.
One common complaint about my strategy is misguided. Many philosophers
are quick to point out that "no man is an island" and
that whatever harms oneself also harms others or at least is capable
of doing so. Perhaps there are no examples of "pure"
or "unmixed" paternalism, that is, of an interference
with liberty that is justifiable solely on the ground that the
conduct to be prohibited harms the doer. I do not maintain otherwise.
I do not suppose that a given activity can harm the doer but not
others. The distinction between harm to oneself and harm to others
is not a distinction between kinds of laws, but rather
it is a distinction between rationales for laws. Any law
might be defended by more than one rationale. I do not treat people
as islands in using the distinction between harm to oneself and
harm to others as an analytical device to help identify the best
reasons for LAD. The paternalistic rationale for LAD may be stronger
than the nonpaternalistic rationale, or it may be weaker. In either
event, the distinction between harm to oneself and harm to others
must be drawn in order to evaluate each of the arguments in support
In the remainder of this section, I will briefly comment on two
alternative rationales for LAD that I will not take very seriously
in the following chapters. My premise that the use of the criminal
sanction should require harm can be questioned.
arguments can be marshaled in support of LAD that do not depend
on harm, either to oneself or to others. According to legal
moralism, the wrongfulness of conduct per se, apart from its
harmful effects, is a sufficient reason to impose criminal punishment.
Many drug prohibitionists resort to legal moralism in support
of LAD. Bennett replies to the cost-benefit analyses of decriminalization
theorists as follows: "I find no merit in the legalizers'
case. The simple fact is that drug use is wrong. And the moral
argument, in the end, is the most compelling argument."
There can be no doubt that popular objections
to illegal recreational drug use are often couched in the strongest
possible moral terms. Drug use is frequently portrayed as sinful
Even an astute commentator
like Kaplan admits that "I cannot escape the feeling that
drug use, aside from any harm it does, is somehow wrong."
For two reasons, however, I will have little to say about legal
moralism here. First, this principle is extremely problematic.
No one has presented a compelling case in favor of legal moralism;
responses from philosophers have been almost entirely negative.
One recurrent theme of their attack is that
legal moralism might be used to enforce community prejudice. The
requirement that criminal liability presupposes a victim who
has been harmed helps to assure that persons will not be
punished simply for doing what those with political power do not
want them to do.
Second, the application of legal moralism to LAD is utterly baffling.
Why would anyone believe that drug use per se is immoral, apart
from any harm it might cause? David Richards is right to suggest
that these beliefs are "entitled to a respectful hearing."
The trick is to translate them into respectable
moral arguments that can provide the basis for criminal legislation
in a secular state. As long as moral reservations about drug use
are presented as unsupported conclusionsor as feelingsthey
will prove resistant to criticism. Arguments, not conclusions,
are the objects of philosophical evaluation.
What, exactly, do drug prohibitionists believe to be immoral about
recreational drug use? Two alternatives are possible. Does the
alleged wrong consist in the act of drug use per se, or in the
alteration of consciousness that drug use produces? The former
alternative seems unlikely. Suppose that the physiology of persons
were altered so that a given drug no longer produced any psychological
effect. Could anyone continue to believe that the use of that
drug would still be immoral? In any event, contemporary Americans
widely reject the view that the act of drug use is inherently
wrong. Few condemn the moderate use of alcohol. The subdued moral
opposition to alcohol heard today is light years away from the
level of outrage expressed by zealots during the temperance movement.
The latter alternative seems no more attractive. Why should the
alteration of consciousness produced by drug use be immoral, apart
from any harm that might result? Some theorists have proposed
that practices such as long-distance running and meditation can
trigger natural neurological reactions that alter consciousness
in respects that are phenomenologically indistinguishable from
the effects of drug use.
No one has
suggested that such practices are immoral, and for good reason.
There is ample reason to doubt that harmless experiences are among
the kinds of things that can be immoral.
Perhaps many Americans share a vague conviction that some but
not all ways of altering consciousness, by the use of some but
not all drugs, is immoral. If this conviction could be defended,
the particular experience of alcohol intoxication might be upheld
as morally permissible, whereas the experiences of intoxication
produced by various illegal drugs could be condemned. As it stands,
however, this conviction is a conclusion in search of an argument.
Typically, persons appeal to harm, either to oneself or to others,
in attempts to differentiate between intoxication from alcohol
and intoxication from illegal drugs. In this guise, the argument
should be taken seriously. What is less clear is how to understand
a version of this argument that does not appeal to harm.
The terrain here is so uncertain that no one should have any clear
idea about how to proceed.
Arguments that illegal recreational drug use is immoral have been
developed, if at all, almost exclusively by those who have rejected
them. Richards may be the only philosopher to have addressed these
arguments in detail.
According to Richards,
moral objections to the experience of drug use originate in an
"Augustinian philosophy of the self"; drug use is depicted
as "degrading" because it frustrates "the competent
exercise of certain personal abilities," which this tradition
The most important of these
abilities is self-control.
Richards responds that drugs allow users to "regulate the
quality and versatility of their experiences in life to include
greater control of mood."
concurs: "Drugs, as they are normally used, increase people's
autonomy and power. People use drugs to make themselves alert
when they need to be alert, and to make themselves relax when
they want to relax, and so on."
this extent, the use of drugs expresses and increases self-control
rather than undermines it. To be sure, the ability to control
when to use or not to use a drug may be compromised by addiction.
I will discuss the implications of addiction for the justifiability
of LAD in Chapter 2. But both Richards and Alexander are persuasive
in arguing that the use of recreational drugs by nonaddicts can
increase rather than decrease their self-control.
Moral objections to drug use might also be derived from an ideal
of human excellence. Drug use might not be conducive to the attainment
of a particular conception of virtue. These arguments are frequently
endorsed by drug prohibitionists. According to Bennett, "Drug
use degrades human character, and a purposeful, self governing
society ignores its people's character at great peril."
James Q. Wilson confines his virtue-based
arguments to illegal drugs: "Tobacco shortens one's life,
cocaine debases it. Nicotine alters one's habits, cocaine alters
What conception of virtue
is employed here? The Christian tradition, for example, identifies
virtue with a personal imitation of Christ, emphasizing extraordinary
sacrifice in the service of others. According to this tradition,
drug use, like any other recreational activity, is suspect. Recreational
activities are nonaltruistic and self-indulgent.
Richards rejects all such arguments on the ground that no particular
conception of virtue will gain the universal assent of rational
Suppose, however, that drug
use were to conflict with whatever conception of human excellence
is eventually accepted. What would follow from this concession?
The answer is that virtue-based arguments fail to support criminal
punishment for recreational drug use. Bennett is correct that
a society should not "ignore its people's character."
But it does not follow that the protection of character is an
appropriate objective of the criminal law. The prohibitions of
the criminal law describe the minimum of acceptable behavior beneath
which persons are not permitted to sink. Virtue-based considerations
cannot be used to show that moderate self-indulgence, as well
as any temporary impairment of rationality and autonomy brought
about by most incidents of drug use, fall below this permissible
level. The criminal law should not enforce a particular conception
of human excellence, however attractive it may be. A theory of
virtue might be applied to subject drug use to moral criticism.
As I will emphasize in Chapter 4, opponents of LAD need not believe
that drug use is beyond moral reproach. But no one should think
that persons deserve to be punished as criminals because their
behavior falls short of an ideal.
A second possible defense of LAD that does not appeal to harm
is described by Zimring and Hawkins as legalism. They express
the core of legalism as follows: "The taking of drugs prohibited
by the government is an act of rebellion, of defiance of lawful
authority, that threatens the social fabric."
to legalists, the consumption of any illegal drug represents a
"threat... to the established order and political authority
Legalism is not simply a logically possible position someone might
adopt on behalf of LAD. Zimring and Hawkins allege that "the
legalist perspective is the dominant orientation of the law enforcement
community in the United States."
document how legalism is presupposed by the National Drug Control
Strategy during Bennett's tenure in the Office of the National
Drug Control Policy. These theorists endeavor to explain how legalism
accounts for at least four of the most salient features of the
war on drugs. First, it explains why illegal drugs, rather than
alcohol and tobacco, are targeted. Second, it explains why all
illegal drugs, such as marijuana and crack, are treated as equally
objectionable. Third, it explains why harsh punishments are applied
even to casual users. Finally, it explains why illegal drug use
per se, rather than the harmful effects that drug use cause, is
regarded as the main problem.
Zimring and Hawkins are anxious to demonstrate how legalism represents
an unwise and inefficient premise for a rational drug control
policy. They succeed admirably, subjecting each of these four
characteristics of the war on drugs to penetrating criticism.
What they fail to address is the total bankruptcy of legalism
as a plausible justification for LAD. Surely it is possible to
oppose a law without opposing the legitimacy of political authority
itself. A legalist stance is not selective; it can be adopted
toward any crime at all. The commission of any criminal offense
can be likened to treason or insurrection. Legalism cannot justify
why war is declared on some but not all offenses. Why not a war
on shoplifting? The fact that an activity is against the law provides
no answer to this and other normative questions. Should recreational
drug use be criminalized? Legalism does not begin to address this
issue, since it only describes the attitudes that we should have
toward illegality once a law is already in place.
Perhaps I have not done justice to the legal moralist or the legalist.
But in the absence of a more detailed and compelling argument
for these positions, I will not further discuss whether these
rationales can support LAD. In what follows, my general project
is to attempt to identify whether there is any harm in
recreational drug use that justifies its prohibition. I assume
that if there is no substantial harm to be prevented by criminal
punishment, LAD should be condemned as an unjustified interference
in personal liberty. Two possible harms might support criminal
punishment: harm to drug users themselves, and harm to others.
I turn now to the first of these rationales.
- "Drug War Underlines Fickleness of
Public," New York Times, 6 September 1990, p. A22:6.
- "War on Drugs Remains Top Priority,
Bush Says," New York Times, 6 September 1990, p. A22:4.
- William Bennett, National Drug Control
Strategy (Washington: Office of the National Drug Control
Policy, 1990), p. 9.
- Thomas Mieczkowski, "The Accuracy
of Self-Reported Drug Use: An Evaluation and Analysis of New Data,"
in Drugs, Crime, and the Criminal Justice System, ed. Ralph
Weisheit (Cincinnati: Anderson Publishing Co., 1990), p. 275.
- Ethan A. Nadelmann, "The Case for
Legalization," The Public Interest 92 (1988): 3.
- National Institute on Drug Abuse, National
Household Survey on Drug Abuse (1990).
- "New York Reports a Drop in Crack
Traffic," New York Times, 27 December 1990, p. B1:2;
"Drop in Youths' Cocaine Use May Reflect a Societal Shift,"
New York Times, 25 January 1991, p. A14:1; and "Crack
May Be Cracking," New York Times, 10 August 1991,
p. 18:1. For more troublesome news, see "Falling Off the
Wagon for Cocaine," Washington Post 2-8 December 1991,
National Weekly Edition, pp. 34-5.
- Franklin Zimring and Gordon Hawkins, The
Search for Rational Drug Control (New York: Cambridge University
Press, o992), pt 42.
- Ronald Hamowy, "Introduction: Illicit
Drugs and Government Control," in Dealing with Drugs,
ed. Ronald Hamowy (Lexington, MA: D.C. Heath & Co., 1987),
- Chester Mitchell, The Drug Solution
(Ottawa: Carleton University Press, 1990), p. 133.
- Harmelin v. Michigan, 111 S. Ct.
- "Hitting a Small Nail with a Very
Large Hammer," Washington Post, 10-16 December 1990,
National Weekly Edition, p. 25:2 14
- Uniform Crime Reports, "Crime in
the United States" (1989)
- Chapman et al. v. United States, 111
S. Ct. 1919 (1991).
- Julie Bach, ed., Drug Abuse: Opposing
Viewpoints (St. Paul: Greenhaven Press, 1988), p. 147.
- Mitchell, Drug Solution, p. 138.
- See Doug Bandow, "Once Again, a
Drug War Panic," in The Crisis in Drug Prohibition, ed.
David Boaz (Washington: Cato Institute, 1990), p. 93.
- See Steven Jonas, "Solving the Drug
Problem: A Public Health Approach to the Reduction of the Use
and Abuse of Both Legal and Illegal Recreational Drugs,"
Hofstra Law Review 18: 751, 774.
- Newsweek, 11 August 1986, 18.
- House Select Committee on Narcotics Abuse
and Control Legalization of Illicit Drugs: Impact and Feasibility,
100th Cong., 2d sess., 1989, 1:133.
- William Bennett, "Drug Policy and
the Intellectuals" (Speech delivered at the Kennedy School
of Government, Harvard University, 11 December 1989).
- See Mitchell, Drug Solution, p. 27.
- See Harold W. Lewis, Technological
Risk (New York: W.W. Norton & Co., 1990).
- "Our Multibillion-Dollar Bill for
Getting the Lead Paint Out," Washington Post 1-7 July
1991, National Weekly Edition, p. 32.
- Herbert Needleman, "Why We Should
Worry about Lead Poisoning," Contemporary Pediatrics 34
- Bennett, National Drug Control Strategy,
(1990), p. 3.
- Zimring and Hawkins, Search for Rational
Drug Control, p. 23.
- Gerald F. Uelmen and Victor G. Haddox,
eds., Drug Abuse and the Law Sourcebook (New York: Clark
Boardman Co., 1988), 1-1.
- Ibid., pp. 1-3
- See Jonas, "Solving the Drug Problem,"
- A. Lee Fritschler, Smoking and Politics,
2d ed. (Englewood Cliffs, NJ: Prentice-Hall, 1975), pp. 34-5.
- William Bennett, National Drug Control
Strategy. (Washington: Office of the National Drug Control
Policy, 1989), p. 4.
- 21 U S.C. sec. 321 (g) (1).
- Food is defined as "articles
used for food or drink for man or other animals" (21 U.S.C.
sec. 321 [f] ).
- 21 U.S.C. sec. 802 (6).
- 21 U.S.C. sec. 802(6).
- Mark Moore, "Drugs: Getting a Fix
on the Problem and the Solution," Yale Law S Policy
Review 8 (1990): pp. 8, 19.
- Bennett, National Drug Control Strategy,
- See Jonas, "Solving the Drug Problem,"
- Uelmen and Haddox, Drug Abuse and
the Law Sourcebook, PP 3-4
- 21 U.S.C. sec. 812.
- U.S. v. Fogarty, 692 F.2d 542,
- NORML v. Bell, 488 F.Supp. 123
- 21 U.S.C. sec. 355 (d) (6).
- See Grinspoon v. Drug Enforcement
Agency, 828 F.2d 881, 891
- Unapproved dispensing of any controlled
substance for the purpose of continuing the dependence of a narcotic
drug-dependent person is expressly prohibited by 21 U.S.C. sec.
828 (e). See also Webb v. U.S., 249 U.S. 96 (1919).
- Robert Bogomolny, Michael Sonnenreich,
and Anthony Roccograndi, A Handbook of the 1970 Federal Drug
Act (Springfield, IL: Charles C. Thomas, 1975), pp. 75-6.
- "Survey Finds Support for Marijuana
Use by Cancer Patients," New York Times, 1 May 1991,
- U.S. v. Pastor, 557 F.2d 930 (1977).
- Grinspoon v. Drug Enforcement Agency,
- See Edward Lipinski, "Motivation
in Drug Misuse: Some Comments on Agent, Environment, Host,"
Journal of the American Medical Association 219 (1972):
- Grinspoon v. Drug Enforcement Agency,
p. 894 n. 14.
- Jerome Beck and Marsha Rosenbaum, "The
Scheduling of MDMA ('Ecstasy')," in Handbook of Drug Control
in the United States, ed. James Inciardi (New York: Greenwood
Press, 1990), 303, 308.
- 21 U.S.C. sec. 844 (a).
- David Musto, The American Disease:
Origins of Narcotic Control, exp. ed. (New York: Oxford University
Press, 1987), p. 260.
- Grinspoon v. Drug Enforcement Agency,
- Vance v. Bradley, 440 U.S. 93,
- U.S. v. DiLaura, 394 F.Supp. 77o,
- McLaughlin v. Florida, 379 U.S.
184, 196 (1964).
- Robert E. Goodin, No Smoking (Chicago:
University of Chicago Press, 1989), p. 65.
- 537 P.2d 494, 504 (1975)
- Ibid., p. 498.
- "Life, Liberty, and Maybe Marijuana,"
New York Times, 5 February 1991, p. A16:4.
- See "Judge's Overturning of Crack
Law Brings Turmoil," New York Times, 1l January 1991,
p. Bs:3; and "Minnesota Upholds Ruling That Crack Law Was
Biased," New York Times, 14 December 1991, p. A8:2.
- Laurence Tribe, American Constitutional
Law, 2d ed. (Mineola, NY: Foundation Press, 1988), p. 1614.
- Ibid., p. o610.
- Ibid., p. 1324.
- Nadelmann, "Case for Legalization,"
- Tribe, American Constitutional Law,
- David Richards, Sex, Drugs, Death,
and the Law (Totowa, NJ: Rowman & Littlefield, 1982).
- See Frederick Schauer, "Decriminalization
and the Constitution," Criminal Justice Ethics 3 (1984):
- See Bowers v. Hardwick, 478 U.S.
186 (1986). But see David Richards, Toleration and the Constitution
(New York: Oxford University Press, 1986).
- Thomas Jefferson, Notes on the State
of Virginia (Boston: Thomas & Andrews, 1801), p. 236.
- Musto, American Disease, p. 9.
- Ibid., p. 247
- See Jonas, "Solving the Drug Problem,"
- Andrew Weil, The Natural Mind, 2d
ed. (Boston: Houghton Mifflin Co., 1986), pp. 2, 36.
- Bruce Alexander, Peaceful Measures:
Canada's Way out of the "War on Drugs" (Toronto:
University of Toronto Press, 1990), p 338.
- See Norman E. Zinberg, Drug, Set,
and Setting: The Basis for Controlled Intoxicant Use (New
Haven: Yale University Press, 1984), p. 28.
- "Federal Judge Would Make All Illicit
Drugs Legal," New York Times, 13 December 1989, p.
- Weil, Natural Mind, p. 19.
- Ronald K. Siegel, Intoxication: Life
in Pursuit of Artificial Paradise (New York: E.P. Dutton &
Co., 1989), p. 313.
- See ibid., p. 308.
- Ibid., p. 311.
- Ibid., p. 312.
- Norman E. Zinberg, "The Use and
Misuse of Intoxicants," in Hamowy, Dealing with Drugs,
pp. 247, 255.
- James Bakalar and Lester Grinspoon, Drug
Control in a Free Society (Cambridge: Cambridge University
Press, 1984), p. 129.
- Ray Brown, "The Black Community
and the 'War on Drugs,' " in The Great Issues of Drug
Policy, ed. Arnold Trebach and Kevin Zeese (Washington: Drug
Policy Foundation, 1990), pp. 83, 85
- Nadelmann, "Case for Legalization,"
4. See also Michael Letwin, "Report from the Front Line:
The Bennett Plan, Street-Level Drug Enforcement in New York City
and the Legalization Debate," Hofstra Law Review 18
- James Inciardi and Duane McBride, "Legalization:
A High Risk Alternative to the War on Drugs," American
Behavioral Scientist 32 (1989): 259, 278.
- Ibid., 278.
- See Samuel Myers, "Drugs and Market
Structure: Is There Really a Drug Crisis in the Black Community?"
in Trebach and Zeese, Great Issues of Drug Policy, p. 98.
- Marsha Rosenbaum, lust Say What? (San
Francisco: National Council on Crime and Delinquency, 1989), p.
- National Institute on Drug Abuse, National
Household Survey of Drug Abuse (1990).
- Ethan Nadelmann, "Drug Prohibition
in the United States: Costs, Consequences, and Alternatives,"
Science 245 (1989): 940.
- Inciardi and McBride, "Legalization,"
- "Anti-Drug Effort Drags Outside
U.S.," New York Times, 25 November 1990, p. Ag:l.
- Peter Reuter, "Can the Borders
Be Sealed?" The Public Interest 92 (1989): 51.
- National Institute on Drug Abuse, High
School Senior Survey (1990).
- Nadelmann, "Drug Prohibition,"
- Nadelmann, "Case for Legalization,"
- James Ostrowski, "The Moral and
Practical Case for Drug Legalization," Hofstra Law Review
18 (1990): 607, 685.
- David Carter, "An Overview of Drug-Related
Misconduct of Police Officers: Drug Abuse and Narcotic Corruption,"
in Weisheit, Drugs, Crime, and the Criminal Justice System,
pp. 79, 105.
- Mark Deninger, "The Economics of
Heroin: Key to Optimizing the Legal Response," Georgia
Law Review 10 (1976): 565, 583
- Mark Kleiman and Aaron Saiger, "Drug
Legalization: The Importance of Asking the Right Question,"
Hofstra Law Review 18 (1990): 527, 542
- Nadelmann, "Drug Prohibition,"
- James Ostrowski, "Thinking about
Drug Legalization," in Boaz, Crisis in Drug Prohibition,
pp. 45, 61.
- Richard Cowan, "How the Narcs Created
Crack," National Review, 5 December 1986, 26.
- Nadelmann, "Case for Legalization,"
- John Kaplan, The Hardest Drug: Heroin
and Public Policy (Chicago: University of Chicago Press, 1983),
- Jon Gettman, "Decriminalizing Marijuana,"
American Behavioral Scientist 32 (1989): 243, 244.
- See Mark Kleiman, Marijuana: Costs
of Abuse, Costs of Control (New York: Greenwood Press, 1989),
- Nadelmann, "Drug Prohibition,"
- See Alexander, Peaceful Measures,
- Ostrowski, "Thinking about Drug
Legalization," p. 62.
- "New Tactics in the War on Drugs
Tilt Scales of Justice Off Balance," New York Times, 29
December 1989, p. Al:l.
- Ostrowski, "Thinking about Drug
Legalization," p. 58.
- James Austin and Aaron McVey, The
1989 NCCD Prison Population Forecast: The Impact of the War on
Drugs (Washington: National Council on Crime and Delinquency,
1989), p. 1.
- See Jonathan Schonsheck, "On Various
Hypocrisies of the 'Drugs' in Sports Scandal," The Philosophical
Forum 20 (1989): 247
- Weil, Natural Mind, p. 46.
- Sports Illustrated, 24 September
- Gerry Fitzgerald, "Dispatches from
the Drug War," Common Cause 16 (January/February 1990):
- See Peter Dale Scott and Jonathan Marshall,
Cocaine Politics (Berkeley: University of California Press,
- See Steven Wisotsky, "The Emerging
'Drug Exception' to the Bill of Rights," Hastings Law
Journal 38 (1987): 889.
- David Evans, "How Many Liberties
Are We Losing?" Human Rights 17 (1990): 14, 15.
- "Hitting a Small Nail with a Very
Large Hammer," p. 25:1.
- See Zimring and Hawkins, Search for
Rational Drug Control, p. 106.
- John Stuart Mill, On Liberty (New
York: E.P. Dutton & Co.,), p. 126
- Legalization of Illicit Drugs, p.
- See James Jacobs, "Imagining Drug
Legalization," The Public Interest 101 (1990): 28.
- John Lawn, "The Issue of Legalizing
Illicit Drugs," Hofstra Law Review 18 (1990): 703,
- See Herbert Packer, The Limits of
the Criminal Sanction (Stanford: Stanford University Press,
- See Douglas Husak, Philosophy of
Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987).
- See the polls in the Washington Post,
18-24 September 1989, Weekly Edition, p. 37; and New York
Times, 15 September p. A26:s. See also Robert Peterson, "Legalization:
The Myth Exposed," in Searching For Alternatives, eds.
Melvyn B. Krauss and Edward P. Lazear (Stanford: Hoover Institution
Press, 1991), p. 324.
- National Institute on Drug Abuse, High
School Senior Survey (1988).
- Arnold Trebach and Kevin Zeese, eds.,
Drug Prohibition and the Conscience of Nations (Washington:
Drug Policy Foundation, 1990) p. 226.
- Joel Feinberg, Harm to Others (New
York: Oxford University Press, 1984); idem, Offense to Others
(New York: Oxford University Press, 1985); idem, Harm to
Self (New York: Oxford University Press, 1986); and idem,
Harmless Wrongdoing (New York: Oxford University Press,
1988). Feinberg allows for the criminalization of some offensive
conduct, but this exception to the general requirement of harm
is unimportant for present purposes.
- See Douglas Husak, "Rights, Harmless
Immorality, and Inchoate Criminal Offenses" (forthcoming).
- William Bennett: "The Plea to Legalize
Drugs Is a Siren Call to Surrender," in Drugs in Society,
ed. Michael Lyman and Gary Potter (Cincinnati: Anderson Publishing
Co., 1991), p. 339
- James Inciardi and Duane McBride: "Debating
the Legalization of Drugs," in Inciardi, Handbook of Drug
Control, p. 283.
- John Kaplan, Marijuana: The New Prohibition
(New York: World Publishing Co., 1970), p. xi.
- Feinberg, Harmless Wrongdoing.
- Richards, Sex, Drugs, Death, and
the Law, p. 168.
- Weil, Natural Mind.
- Richards, Sex, Drugs, Death, and
- Ibid., p. 169.
- Ibid., p. 170.
- Alexander, Peaceful Measures, p.
- Bennett, National Drug Control Strategy,
(1989), p. 9.
- James Q. Wilson, "Against the Legalization
of Drugs," Commentary 89 (1990): 21, 26.
- Richards, Sex, Drugs, Death, and
the Law, pp. 171-2.
- Zimring and Hawkins, Search for Rational
Drug Control, p. 9.
- Ibid., p. 8.
- Ibid., p. 10.