Sex, Drugs, Death, and the Law
An Essay on Human Rights and Overcriminalization
Chapter 4 Drug Use and the Rights of the Person
David A. J. Richards
Go to Chapter 1
|David A. J. Richards has practiced law in New York and is currently professor of law, criminal law, and jurisprudence. His publications include A Theory of Reasons for Action (1971), The Moral Criticism of Law (1977), Toleration and the Constitution (1986), and numerous articles on law, philosophy, and political and moral theory. Sex, Drugs, Death, and the Law ©1982 by Rowman and Littlefield. ISBN 0-8476-7525-4 (pbk.)|
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Laws criminalizing the use of certain drugs have been major targets
of the general liberal critique of overcriminalization. As
in the case of commercial sex, advocates of decriminalization
have had little success in opposing drug laws,
the sound arguments they have advanced that enforcement is costly
and wasteful. It is not enough, however, to raise cost-benefit
it appears necessary to criticize
independently the common assumption that drug use is immoral.
There has been a dearth of serious argument on this point. Yet
a forceful argument can be made, consistent with the pattern of
our argument about commercial sex, that laws criminalizing many
forms of drug use violate certain basic rights of the person.
This chapter will have a structure parallel to that of the previous
chapter: first, a description of drug use as an empirical phenomenon
in historical, anthropological, and medical perspective; second,
a consideration of the main arguments for the criminalization
of drug use in the United States; third, an application of the
autonomy-based theory of morality, set out in
Chapter 1 and elaborated
in the previous chapters, to the critical examination of the main
arguments for the criminalization of drug use; fourth, a statement
of the case for a right to drug use, which would include the extension
to drug use of the constitutional right to privacy; and finally,
a review of alternative regulatory approaches to drug use.
I. DRUG USE: ANTHROPOLOGICAL, HISTORICAL,
A drug may be broadly defined as "any chemical agent that
affects living processes"
be ingested through the mouth, the rectum, by injection, or by
Importantly, this standard
definition is pharmacological: a substance is defined as a drug
by its mechanism of chemical agency. Two significant conclusions
follow. First, according to this definition, alcohol, caffeine,
and nicotine are drugs, however ingested and in whatever circumstances,
for they are chemical agents within its terms.
reluctance of social convention to regard these agents as drugs
requires explanation and investigation. The popular definition
of drugs certainly cannot be accepted uncritically without begging
a most important moral question.
Second, the scientific definition implies nothing about the purposes
of drug use, which include therapeutic cure,
of symptoms, pain, or anxiety,
of mood (by way either of depressants or stimulants),
and exploration of religious experience,
of hallucinatory fantasy for a range of purposes,
A political or
moral analysis of drug use must go beyond the pharmacological
focus on the chemical agency common to all drugs and assess the
propriety of various purposes of drug use.
Drug use appears to be very ancient, sometimes appearing in forms
that mix inextricably several or all of the therapeutic, religious,
and recreational elements. The very ancient tradition of the shaman
incorporated elements of drug use into rituals
in which the shaman experienced mystical
and ecstatic states that appear to have brought comfort to the
sick and afflicted.
In addition, the
shaman through such rituals received prophetic and political messages
for the society at large.
research into cultures that retain this tradition reveals a complex
and often highly stylized set of experiences, embedded in a cultural
setting of religion, therapy, medicine, and even political protest,
in which drugs derived from native plants play a prominent role.
In the ancient world, the drug soma, of uncertain
appears to have been integral
to the mystical experiences of the divine celebrated in the ancient
hymns of the Hindu RgVeda.
use in some form may have been central to the Greek mystery cults.
One historian controversially has identified
drug use as contributing to the origins of Christianity.
In the west, Christianity appears to have sharply repudiated the
use of drugs as an organon of religious experience, finding it
to be a form of Gnostic heresy.
possession and ecstasy, at the heart of much earlier religion,
becomes, from this perspective, one form of demonic or satanic
a charge that Catholic missionaries
made against the shamanic practices they encountered in the New
The leading contemporary defender
of this Judaeo-Christian repudiation, R. C. Zaehner, has argued
that the technology of the self implicit in the orthodox western
religions requires an unbridgeable gap between the human and the
expressed in the submission of
the self to ethical imperatives by which persons express their
common humanity and a religious humility.
western, in contrast to nonwestern, mystical experience expresses
the distance between the human and the divine. Drugs, including
are ruled out as stimuli to
religious experience because they bridge this distance, indulging
the narcissistic perception that the user himself is divine and
thus free of the constraints of ethical submission.
While drug use as an adjunct to religious experience was thus
driven underground in the west, recreational uses continued in
the secular sphere. Fermented alcoholic beverages were celebrated
and appear to have been
part of the fabric of cultivated social intercourse in Plato's
Overindulgence, to the point
of drunkenness, was certainly considered a vice,
a well-regulated indulgence was not. On balance, the judicious
Montaigne recommended the virtues of wine: "[W]e should make
our daily drinking habits more expansive and vigorous."
When the use of caffeine and nicotine was
introduced into western and other cultures, these drugs encountered
cultural and some spirited political resistance,
were in time integrated into new forms of social and personal
A striking political concern with alcohol use developed with the
availability of distilled liquor.
classic engravings "Beer Street" and "Gin Lane"
reflect the contrasting social perceptions of the benign effects
of fermented beverages (wine and beer) and of the malign dissipation
caused by use of distilled liquor (gin).
Europe and England, this concern led to regulation aimed at controlling
drunkenness as such. Neither Luther nor Calvin, both of whom followed
Augustinian Catholicism in emphasizing original sin and salvation
appear to have seen any religious
or moral benefit in the elimination of alcohol from social and
Religious support for
prohibition of alcohol dates from the Radical Reformation,
which saw the rise of Anabaptist sects in
Europe and of Quakers and Methodists in England.
sects, stressing the inward spirituality of the imitation of Christ
in a way in which Luther and Calvin did not, identified freedom
from dependence on alcohol as part of the stewardship of the body
in which the spirit of Christ might reside.
The most powerful political expression of this religious perspective
developed in the United States, where it thus shaped America's
general perception of permissible drug use. An important expression
of this emerging point of view was an influential book by a signatory
to the Declaration of Independence, An Inquiry into the Effects
of Ardent Spirits upon the Human Body and Mind,
the Quaker physician Benjamin Rush. Rush focused on the malign
effects of "ardent spirits" (distilled liquor), as opposed
to the effects of fermented beverages which, with opium, he regarded
as much less harmful alternatives.
argument against hard liquor cited a litany of medical and social
harms, including harms to physical well-being
to social virtue.
Rush wrote mainly as
a physician and social observer, but his medical and sociological
perceptions clearly were colored by a religious morality that
identified the immorality of distilled liquor with the wrongness
In the conclusion of his
argument, he described Quakers and Methodists as religious groups
who comprehended their duty to renounce hard liquor,
issued a call to American ministers of every denomination to join
them as a moral force in combating this social evil.
During the nineteenth and early twentieth century Rush's call
was answered by the emergence of an explicitly religious argument.
Such influential clergymen as Lyman Beecher found that the prohibition
of liquor was required, not only to prevent the secular harms
that Rush identified, but also by the terms of the Bible itself.
These often extravagant Biblical interpretations,
which defy any sound canons of Biblical scholarship,
fired an emerging American Protestant orthodoxy.
The political expression of this movement
became increasingly intransigent, moving from voluntary associations
concerned with helping people limit their use of hard liquor to
absolute state prohibitions of all forms of liquor, whether distilled
The prohibition of fermented
beverages, which Rush would not have supported,
from an increasingly popular argument found in the prohibition
movement literature. It was maintained that fermented beverages
were a steppingstone to distilled liquor
accordingly, that ending the "habit forming and brain perverting"
effects of hard liquor required the prohibition
of fermented beverages as well.
The religious ideals that fueled this movement became secularized
into a dominant conception of "public morality," as
articulated by purity reformers.
morality with the asexual and spiritual nature of women in the
these reformers perceived liquor
use in the familiar masculine territory of the saloons as a threat
to moral values,
calling men from the
spiritual sanctuary of wife and children into the coarse, competitive,
and sensual public worlds of work and politics.
appears to have been associated, ideologically, with the purification
the evil of liquor was increasingly
condemned as a form of slavery, which undermined "a citizen
in his political capacity."
culmination of this movement was, of course, Prohibition,
instituted via the eighteenth amendment to
the United States Constitution in 1919, and repealed by the twenty-first
amendment in 1933.
This American moral perspective on the use of liquor played a
significant role in the evolving legal treatment of opium and
marijuana. Conceptions of proper drug use, developed in the liquor
context, were applied, mutatis mutandi, to other drugsto
opium in the period of growing intransigence that culminated in
and to marijuana in the frustrating
period for purity reformers after Repeal.
case of opium is particularly instructive. Opium, the use of which
as an analgesic is ancient,
to public notoriety in the early nineteenth century in the form
of laudanum, an opium and wine mixture. Laudanum's capacity to
spark imaginative exploration was both celebrated and deplored
by such romantic poets as Coleridge
and by the shrewd essayist
Its widespread use in America
as an ingredient of the popular medicines used largely by women
(who may have had religious scruples about alcohol)
largely unnoticed until the end of the nineteenth century.
At that time, the acquisition by the United
States of the Philippines brought their opium trade under American
political responsibility. At issue was whether to reconstitute
the Spanish licensing system whereby contractors paid the government
for the right to grow and sell opium. The opium was, evidently,
widely used by the Chinese population of the Philippines, largely
for recreational purposes.
figure in shaping the American response was Bishop Brent, the
Anglican bishop of the Philippines, who was one of three members
appointed to the Philippine Opium Commission.
The question is first and foremost a moral one. The use of the
drug otherwise than medicinally is a vice.... The opium traffic
stands in the category of crime except so far as it is imported
for purely medicinal purposes. It cannot be ranked with the liquor
trade, for, as every temperate man acknowledges, in this latter
there is a legitimate consumption as a beverage, however much
the liberty may be abused, whereas there is no unvicious use of
opium or its immediate products as a foodstuff or beverage. The
consumption of opium is not merely a personal weakness; it is
a social vice, i.e. a crime.
Brent's comparison of opium to liquor is striking in that it suggests
a natural association of the two questions. Americans, who were
gravitating to a more prohibitionary policy on liquor than Brent
appeared to assume, understandably could tolerate no less for
nonmedicinal uses of opium.
assumption that use of opium, its benefits outweighing its harm,
was as much a way of life in the east as use of liquor was in
could take no hold on minds
that increasingly questioned the propriety of liquor use itself.
Brent's Commission not surprisingly, but prophetically for the
future of American internal policies on drug use, recommended
a government monopoly to effect the "control, repression
and abolition of the use of opium and the traffic therein."
The United States thus became the first western
nation to sponsor a respected study that advocated some form of
The growing American concern with opium was fired by reports from
Christian missionaries in China.
was available to the Chinese either through a black market or
after it had been subjected to a series of tariffs.
Chinese of all classes used opium, the poor inevitably suffered
most from the high prices. Missionaries reported that men sold
their businesses and families to satisfy their habits.
Apparently the missionaries did not perceive an appropriate solution
in making opium available at lower prices. They associated opium
use with a variety of physical and social harms,
to those Rush associated with alcohol. Missionaries thus perceived
opium use as frustrating their own ambitions. To some extent,
this was a consequence of history: the British success in the
which opened China to the
opium trade, opened China to Christianity as well.
originally the Christian missionaries had welcomed this development,
the association of Christianity with forcing opium on a recalcitrant
people hardly endeared the teachings of the missionaries to the
In light of this history, missionaries
paradoxically identified the evils of Chinese social and political
life (including opium) with its non-Christian religion and morality.
Indeed; the missionaries perceived the issue
in terms of standard temperance doctrine long familiar in the
United States. Opium was said to present a block to Christianity
in China in the same way that alcohol presented a block to Christianity
in the United States.
Both were forms
of intemperance which were "enem[ies] of spirituality and
... defiler[s] of the body."
Chinese converts were told they could not be both Christians and
These missionary attitudes reached the United States in a variety
For example, one lobbying group
for the missionaries in the United States, the International Reform
Bureau, obtained a hearing before the State Department in 1905
to induce the Department to use its good offices to release China
from its treaty obligations to tolerate opium traffic.
of the missionaries, Bishop Brent, not only sat on the Philippine
Opium Commission, but appears to have sent to President Roosevelt
the letter that led to the United
State's organizing the 1909 Shanghai Opium Conference, thus beginning
the international movement for the careful control of the opium
When a study prepared for the
Conference revealed widespread use of opium in the United States,
albeit under the guise of a medicinal agent,
the government was already committed to an anti-opium stance for
complex economic, political, and ideological reasons.
embarrassing gap in American domestic law,
contrast to the United State's aggressively prohibitory international
led to the Harrison Act of 1914,
a regulatory and licensing statute for opium.
The terms of the Harrison Act, while permitting the use of opium
in the treatment of disease or injury, did not specify whether
and to what extent physicians might prescribe opium for use in
treating heroin addiction.
construction of the statute, which took form in the period of
decisively rejected any
such use of opium.
The United States
Supreme Court lent its imprimatur to this construction in several
cases. The Court invoked in one such case the popular term "dope
in another it characterized
the concept that heroin maintenance is sound medical practice
as "so plain a perversion of meaning that no discussion of
the subject is required."
another case, the Court spoke of heroin maintenance as "the
gratification of a diseased appetite for these pernicious drugs."
Although the Court later reversed itself,
original decisions lent legitimacy to the construction of the
Act by a small group of Washington administrators,
condemned and prematurely ended experiments by several states
in providing heroin maintenance clinics.
medical profession in the United States, in contrast to the British
profession, which strongly and successfully resisted similar measures
was unable to prevent the
prohibition of maintenance.
sense of proper drug use, formed in the battles over liquor, naturally
reproduced itself in the perception of opium use with comparable
social images of disease and disorder (the "drug fiend").
These dubious assumptions were never questioned.
By the time of the first careful and impartial discussion of the
the legal pattern was already
cast. The United States was committed to the absolute prohibition
of opium and its derivatives except for narrow medical purposes,
while in England and Europe heroin maintenance dosages were available.
In the wake of the repeal of Prohibition in 1933, social attitudes
to drug use took on an independent significance in shaping legal
developments. Arguably because of the failure of the attack on
liquor, attitudes toward drugs became even more uncompromising.
The campaign leading to the passage of the
Marihuana Tax Act of 1937,
included remarkable distortions of the evidence of harm caused
ignoring the findings
of empirical inquiries.
In later years,
sanctions for the use of drugs, especially heroin, increased both
at the federal and state levels.
and New York experimented with hospitalization of addicts,
but in ways that may have been as objectionable
as criminalization itself.
turned from its abortive experiment to some of the harshest criminal
sanctions for drug use in the United States.
Remarkable pharmacological advances in the past few centuries
have been a mixed blessing; while many new kinds of relief are
now available, some of them are simply purer and more powerful
forms of the chemical agents of existing drugs. The dangers of
abuse have increased correspondingly.
the hallucinogens, for example, mescaline
induce more powerful experiences
than previously known narcotic plants.
chemical innovations of morphine
as well as the technological
innovation of the hypodermic needle,
increased both the strengths and the dangers of drug use beyond
levels created by opium smoking and laudanum.
Contemporary drugs may be classified as: the narcotics (opium,
morphine, heroin, methadone, and others),
depressants (alcohol, barbiturates, tranquilizers, and other sedatives
the stimulants (including
coca leaves, cocaine, and amphetamines),
the hallucinogens or phantasticants (mescaline, LSD, LSD-like
drugs, marijuana, and hashish) 
The contemporary legal treatment of these drugs is summarized
in the Comprehensive Drug Abuse Prevention and Control Act of
1970, a federal statute that has been the model for comparable
Drugs are divided into
five schedules, ranging from those with the highest potential
for abuse, for which no use is permitted (Schedule I), to those
for which medical use is permitted (Schedules II to V). For drugs
in schedules III to V, control of production is removed; penalties
for illegal use are decreased and are focused instead on manufacturing
and distribution. Schedule I includes heroin, marijuana, LSD,
mescaline, and others; Schedule II, morphine, cocaine, amphetamine-type
stimulants, and others; Schedule III, nonamphetamine-type stimulants
and barbiturates; Schedule IV, barbiturate and nonbarbiturate
depressants, etc.; Schedule V, compounds with low amounts of narcotics,
stimulants, and depressants. Of the drugs typologically described
above, alcohol, caffeine, and nicotine are not within the schedules,
and thus are unregulated by their strictures.
II. THE ARGUMENTS FOR THE CRIMINALIZATION OF DRUG USE
In order to understand the American practice of criminal prohibition
of certain forms of drug use, we must take seriously the arguments
offered in its defense: (1) criminogenesis; (2) the control of
ancillary forms of physical illness and injury; (3) the intrinsically
immoral and degrading nature of drug use, either in and of itself
or in its effects on other individuals and society in general;
and (4) cognate to (3), the self-destructive or debilitating nature
of drug use. Of these arguments, the first and second do not justify
the current absolute criminal prohibitions of many forms of drug
use; therefore, the gravamen of the argument for criminalization
turns, as we shall see, on the proper weight to be given to the
third and fourth arguments.
Criminal prohibition of the use of certain drugs, notably heroin
and marijuana, has been justified as a means of suppressing other
types of crime. It is said that drug users support their habits
by theft and robbery; that drug use releases violence, induces
illegal trafficking in drugs, and enlarges the scope of organized
None of these considerations
in fact justifies the criminalization of drug use; indeed, criminalization
itself fosters these evils. It forces drug users into illegal
conduct to obtain money for drugs and brings them into contact
with the criminal underground, the covertness of which breeds
First, the association of drug use with illegal trafficking in
drugs and the consequent enlarged scope of organized crime operations
is a result of criminalization itself. Criminalization imposes
a crime tariff on drugs, inflating prices and creating high profit
margins that make the drug trade attractive to organized crime.
The organized crime argument begs the question,
since it is criminalization, not drug use itself, that makes possible
organized crime involvement.
Second, to the extent that drug use is related to increases in
other criminal activity, or diversion of criminal activity into
that causal matrix depends
on criminalization, not on drug use itself. In order to pay the
crime tariff on drugs, users may engage in burglary, theft, or
robbery, or in services with their own crime tariffs, such as
prostitution, gambling, and drug trafficking itself. In addition,
the criminal stigma and enforced covertness probably encourage,
or at least reinforce, dependence on narcotics,
and certainly make detection and possible control of addition
more difficult. Where heroin is made available to addicts in regulated
contexts at low or minimal prices, as it is in Britain,
causal nexus with ancillary crime exists,
the level of drug addiction appears under control.
the United states, prior to the Harrison Act, there was no link
between drug use and ancillary crime. Indeed, the composition
of the drug-using population in the United States has probably
been decisively shaped by criminalization. The population of heroin
addicts, which before criminalization included many middle-class
now includes a disproportionate
number of poor urban minorities.
moral implications of this shift, for which criminalization bears
an appropriate subject for further analysis.
Third, at least with respect to most drugs now criminalized, there
is simply no factual support for the argument that drug use itself
releases inhibitions or criminal tendencies. To the contrary,
heroin and marijuana appear to diminish the aggressiveness which
often expresses itself in violent crime.
chapter of the history of American attitudes to drug use is more
instructive than the dependence of advocates of criminalization
on this argument. Often this argument was supported by selective
citations from unreliable journalistic
law enforcement reports,
confessions by criminals that their conduct was induced by drugs,
or unsubstantiated surmises of enforcement
officials wholly lacking any critical impartiality on the question.
This hystericalized social mythology may unwittingly aggravate
the problem of violent crime that it ostensibly seeks to reduce.
In deterring the use of the drugs that lessen violent propensities,
criminalization may encourage the use of alcohol, which demonstrably
heightens such violent tendencies.
addition, upon discovering that certain illegal drugs do not cause
violent crime, persons who use these drugs may fail to regulate
appropriately their use in certain contextsfor example, prior
to driving. This discovery may also lead them to conclude that
all distinctions between legal and illegal drugs are irrational
and may thereby encourage
them to use other illegal drugs which might, in fact, stimulate
illegal violence. Wholesale criminalization, in contrast to fine-tuned
regulation of drug dosages and uses, apparently creates or compounds
the problem it is supposed to solve.
Arguments of criminogenesis are generally circular and question-begging;
they argue for criminalization of drug use on the basis of the
evils that criminalization, not drug use, fosters. If there are
crimes associated with drug use, they are more rationally attacked
by decriminalization and by criminal statutes directed narrowly
at the evils themselves (for example, drug use before driving),
not by overbroad statutes that actually encourage what they purport
B. Control of Physical Injury and Other Harms
Another argument supporting criminalization is that drug use may
cause physical injury and even death. The image usually invoked
is that of the contemporary, urban, ghetto heroin addict, whose
addiction may be accompanied by hepatitis, tetanus, and abscesses
at the site of injection. His practice of sharing needles may
result in the communication of diseasefor example, malaria.
His addiction may also conceal the early symptoms of diseases,
such as pneumonia, or lead to malnutrition, which increases susceptibility
to disease. The varying strengths of doses may also increase the
possibility of an overdose and sometimes death.
This scenario fails to recognize that any drug that is used in
sufficiently high dosages or in certain contexts (with other drugs,
for example) will probably cause severe harm, including, sometimes,
death. This is true of many drugs currently available without
Harm usually occurs when,
intentionally or not, the instructions for proper use are not
observed. In general, the composition and purity of legal drugs
are carefully regulated, and the potential for harm is kept to
a reasonable minimum by regulations, appropriate instructions,
Many of the harms cited as the basis for criminalization could
be avoided by the same forms of regulation that are applied to
presently legal drugs. For example, because the Food and Drug
Administration does not regulate the sale of heroin, the buyer
is never sure of what he is getting and may accidentally give
himself a fatal overdose.
of appropriate medical supervision over the sterilization of hypodermic
needles used to inject heroin accounts for the diseases found
at the site of injection.
the illegality of drug use discourages the addict from seeing
a physician. A physician, if consulted, might detect symptoms
of illness that are masked by the addiction.
for example, is common among addicts and is caused both by a lack
of interest in food and by a lack of money due to the crime tariff.
In short, the evils of heroin use that are alleged as a ground
for criminalization are produced or fostered by such criminalization;
all these dangers could be reduced appreciably if heroin use were
legal and regulated, as it is in Britain.
C. Moral Arguments
It is disingenuous to suppose that the American criminal prohibition
of drug use is based on the secular concerns of criminogenesis
and control of drug-related injuries. Neither argument can justify
such prohibition; indeed, serious concern with the evils adduced
by both arguments would require the opposite conclusion. These
arguments are, at best, post hoc empirical makeweights for justifications
of a different order, namely, moralistic and paternalistic arguments
of a peculiarly American provenance. In order to deal effectively
with the justifications for criminal prohibitions, we must examine
these arguments critically.
Of course, in order to demonstrate that the concept of "public
morality" has been abused, one must analyze the precise nature
of the abuse. What moral fallacies underlie the traditional arguments?
Are the facts wrong, or are they just unfairly assessed? Do the
proponents of these traditional arguments give improper weight
to certain personal ideals? Do they make question-begging assumptions
about moral personality?
The tradition of moral condemnation of drug use is surely entitled
to a respectful hearing. I wish to take it very seriously, and
yet show how human rights theory of the kind earlier suggested
demonstrates why such moral condemnation is mistaken. In order
to do this, I will refer to moral theory and moral archaeology.
Moral strictures such as those surrounding drug use often rest
on beliefs which we consciously reject elsewhere in our social
life but which, in certain circumscribed areas, retain their force.
An historical and moral analysis reveals these unconscious assumptions
and subjects them to moral assessment. Let us begin with the moral
grounds for the condemnation of drug use per se, and then turn
to the paternalistic grounds.
III. THE MORALITY OF DRUG USE AND THE RIGHTS OF THE PERSON
The moral condemnation of drug use rests on a number of disparate
grounds. They will be considered seriatim as follows: (1)
the intrinsically degraded character of drug use; (2) effects
of drugs on particular third parties; (3) effects of drug use
on society at large; (4) background issues of social and economic
justice; and (5) paternalistic arguments about the self-destructive
or debilitating nature of drug use.
A. Drug Use and Degradation
To think of behavior as degraded is to assume that one's self-esteem
is invested in the competent exercise of certain personal abilities
and that the behavior in question fails to be competent in the
required way. The degraded one thus is the natural object of shame
or self-disgust at his personal failure to live up to standards
of conduct that are valued as essential to the integrity of the
Accordingly, the application
of the notion of degradation to drug use requires an analysis
of the valued behavior from which such use is alleged to deviate.
This behavior apparently embodies certain general conceptions
of self-control and also includes specific perfectionist ideals
of such conceptions as well as notions of moral personality which
drug use, especially drug addiction, alienates or enslaves in
some fundamentally immoral way. Although these conceptions are
interrelated, we may profitably discuss them separately.
1. GENERAL CONCEPTIONS OF SELF-CONTROL. One general conception
of the person, which may underlie the claim that drug use is degrading,
is the value of self-control. Before the value of self-control
can be determined we must have some idea of the proper uses of
this capacity. We should recall in this connection our earlier
discussion of Saint Augustine's moral conception that sexual propensities
not consistent with necessary procreational goals are a degrading
loss of self-control.
model for sexuality was part of an emerging philosophy of self-mastery,
marked by its concern to subordinate and, where necessary, to
deny otherwise natural aspects of the self in the service of the
stipulated moral conception. This philosophy appears to have encompassed,
as well, the denial of religious drug use, since such use led
to ecstatic experiences of personal divinity, which Augustine's
theory condemned as heretical forms of possession.
this perspective, there is an inner unity in the belief that both
natural sexual impulses and drug experience are degraded. In this
context they both are anarchic losses of self-control inconsistent
with the proper aims of rational will: e.g., procreation and religious
experience without drugs. This would explain the contemporary
concern with those forms of drug use that most closely approximate
earlier religious forms of drug use.
The general Augustinian model of self-control is no more sustainable
when applied to drug use than to sex:
use does not produce a drunken anarchy inconsistent with the aims
of rational will as such. Humans use drugs for diverse purposesfor
therapeutic care and cure, for relief of pain or anxiety, for
stimulation or depression of moods, for exploration of imaginative
experience (for creative, aesthetic, religious, therapeutic, or
other reasons), for recreative pleasure, and the like.
consciously choose among these purposes depending on the context
and their individual aims. In so doing, they express self-respect
by regulating the quality and versatility of their experiences
in life to include greater control of mood
sometimes, increased freedom and flexibility of imagination.
For many, such drug use does not constitute
fear-ridden anarchy, but promotes the rational self-control of
those ingredients fundamental to the design of a fulfilled life.
It is, of course, a banality of the literature of perceptive observers
on drug experience that the quality of such experience varies
according to the expectations, aims, and identity that the person
brings to the experience.
confirm that drug experience is neither satanic damnation nor
divine redemption of the self, but merely one means by which the
already existing interests of the person may be explored or realized.
The Augustinian philosophy of the self, which disavows drug use
as a mode of religious experience, might have some larger appeal
if it were true that such drug experience prevented one from acting
on the fundamental moral imperative of treating persons as equals.
In the historical evolution of moral ideas, perhaps, the Augustinian
philosophy played some benign role in the elaboration and practical
efficacy of this moral imperative in social life. In any event,
it is fallacious to assume that this hypothetical role now requires
the conclusion that such drug experience is inconsistent with
a life regulated by moral principles. There is no evidence whatsoever
to support this proposition; indeed, there is some evidence (although
hardly conclusive) that the contrary proposition is true.
Because these models of sexuality and drug use can no longer be
sustained, neither can they be legally enforced on the ground
of public morality if, as I have argued in earlier chapters, to
be legally enforceable moral ideas must be grounded in equal concern
and respect for autonomy. Just as recognition of the inadequacy
of the procreational model is a focus of argument critical of
overcriminalization of consensual adult sexuality, the criminalization
of drug use cannot be sustained on the comparable model of improper
This does not mean, of course, that drug use is necessarily a
superior moral ideal. To the contrary, there is at least one particular
moral conception of personal perfectionism which supposes all
drug use is intrinsically degraded. To this we now turn.
2. PERFECTIONIST IDEALS OF THE PERSON. No argument supporting
the moral condemnation of drug use has had a stronger and more
pervasive hold on the American popular imagination than the argument
for protecting the perfectionist ideal of the person.
ideal should be distinguished from the earlier Augustinian conception,
which condemned drug use as an organon of religious experience
but did not object to drug use as such. Indeed, the western tradition
outside the United States, in both Protestant and Catholic nations,
tolerated many secular forms of drug use, notably liquor.
Excessive drug use, to the point of drunkenness,
for example, was a vice,
but a well-regulated
use was not. The perfectionist ideal arose within the Radical
Reformation and was carried to the United States by sects, such
as the Quakers and Methodists, whose own moral conceptions appear
to have decisively shaped the American conception of public morality.
This ideal is derived from the radical merger
of the priesthood and laity that occurred in these sects, their
tendency to downplay the doctrine of original sin, and their demand
that all members spiritually imitate Christ.
laity at large were thus expected to conform to a perfectionistic
saintliness that earlier, more pessimistic attitudes would have
required only of the clergy, or of certain of the laity whose
lives were marked by extraordinary self-sacrifice and dedication.
In addition, the Radical Reformation laid great emphasis on internal
spirituality and expected its adherents to strive for perfectionistic
saintliness in this sphere as well. It is as if the Augustinian
concern to keep religious experience unpolluted by alien agents
were generalized to subjective experience in general. For the
radical sects and their offshoots, all personal experience was
considered religious; therefore, the state and quality of such
experience was properly the subject of religious concern. The
use of drugs, in particular alcohol, for nonmedical purposes,
was thus eventually condemned.
This conception identifies virtue, including the virtues of citizenship,
with personal imitation of Christ, and thus with a commitment
to extraordinary self-sacrifice in the service of others, requiring
the exercise of independent conscientiousness and self-control.
Thus, Benjamin Rush, when analyzing liquor as a social problem,
focused not only on its alleged physical
harmfulness, but also particularly on the resultant loss of control
which was inconsistent with the required character of a life in
service to others.
He strikingly defined
the consumption of distilled liquor as a form of suicide,
a self-destructive impulse which ignores
the constant call of service to others. The drug user, perceived
through the lens of this moral conception, cultivates subjective
experiences which lead to a similar self-indulgent loss of control.
The use of drugs thus was naturally seen (in accordance with the
Augustinian model of religious experience) as a radical evil,
even as heresy or satanic possession,
which there could be no compromise. This, in short, is the moral
philosophy underlying America's unique experiment with prohibition
its remarkable generalization
of this approach to opium and marijuana,
its continuing prohibitions in other areas of drug use.
One may legitimately urge this moral conception upon others as
a guide for their conduct, but not as a valid justification of
criminal sanctions. First, the autonomy-based concept of treating
persons as equals rests on respect for the individual's ability
to determine, evaluate, and revise the meaning of his or her own
life. It was argued earlier that the Augustinian model of self-control
should not be legally enforced precisely because it ignores this
experience of responsible self-determination as an important aspect
of moral personality. It thus deprives persons of autonomous choice
regarding fundamental experiences. The invocation of the perfectionist
ideal of self-control as a compulsory moral standard is open to
similar objections. There is no reason to believe that it is the
only legitimate model of responsible self-control, the only means
of human fulfillment. Many other courses may reasonably and responsibly
accommodate the diverse individuality of human competences, aspirations,
and ends. What for one is a reasonable, self-imposed ideal of
self-control and social service may be for another a self-defeating
impoverishment of human experience and imagination, a rigid and
inflexible willfulness without intelligent freedom or reasonable
spontaneity, a masochistic denial of self and subjectivity in
the service of uncritical and dubiously manipulative moral aims.
Second, the only moral principles that are properly enforceable
by the criminal law are those that secure the higher-order rational
interests at little cost.
define a minimum morality of decency, which only requires such
sacrifice of an individual's interests that may be reasonably
and fairly expected. These principles do not require the kind
of self-sacrifice that we may admire in saints and heroes.
Beyond this morality of decency there are
standards of aspiration
ethical demand, persons may individually adopt. It is, in fact,
controversial whether the perfectionist ideal is a moral desideratum
that should command the respect of all reasonable persons. Assuming
it is, it is not properly enforceable through the criminal law
because it requires a sacrifice of rational interests in the autonomous
choice of fundamental experiences. Such a sacrifice cannot be
compulsorily demanded, although it may be admired.
The religious conception that underlies the perfectionist ideal
is centered on the cultivation of spontaneous religious experience
by all persons. It is paradoxical that this emphasis was historically
wedded to a rigid philosophy that excluded all alternative methods
of achieving such religious experience. Surely, any such ideal
of spontaneous feeling is the very antithesis of compulsory forms
of experience. Indeed, the invocation of such ideals to justify
compulsory norms is a travesty of the spiritual meaning of these
In any event, in such matters, the range of reasonable personal
ideals is wide and acutely sensitive to personal context and individual
idiosyncrasy. The law has no proper role in determining how these
choices are to be made or in promoting the perfectionist ideal
3. THE ALIENATION OF MORAL PERSONALITY AND THE CONCEPT OF ADDICTION.
Even if the argument that all drug use is degrading cannot be
sustained on the basis of perfectionist ideals, there remains
the intuition that certain forms of drug use degrade because they
enslave moral personality, depriving the user of certain fundamental
capacities. Immanuel Kant, the father of modern deontology, sketched
a form of this argument when, after arguing that the drunk person
"is simply like a beast, not to be treated as a human being,"
The first of these debasements, which is even beneath the nature
of an animal, is usually brought about by fermented liquors, but
also by other stupefying agents such as opium and other products
of the plant kingdom. These agents are misleading in that they
produce for a while a dreamy euphoria and freedom from care, and
even an imagined strength. But they are harmful in that afterwards
depression and weakness follow and, worst of all, there results
a need to take these stupefying agents again and again to increase
Kant, like Rush,
that the moderate use of fermented beverages is moral because
it may enliven the candor of social exchange.
wrote, however, that "[t]he use of opium and distilled spirits
for enjoyment is closer to baseness than the use of wine because
the former, with the dreamy euphoria they produce, make one taciturn,
withdrawn, and uncommunicative. Therefore, they are permitted
only as medicines."
of this argument today centers on the concept of addiction, those
drugs, such as heroin which cause addiction, are said to be degrading,
and thus may be morally condemned and legally prohibited.
Originally, the concept of addiction was not associated with drugs
or chemical agents. When, in Shakespeare's Twelfth Night, Maria
speaks of Olivia as "being addicted to a melancholy,"
she means that her mistress is subject to
a dominant psychological propensity constituting a kind of devotion,
which colors and organizes her other ends. Thus, Maria correctly
observes that Malvolio's antics will be disfavorably interpreted
in terms of Olivia's dominant psychological bent. In this sense,
an addiction has a quasi-religious connotation; it has a devotional
centrality in one's system of ends.
When the concept of addiction is associated with certain drugs,
at least four different strands of meaning are conflated: (1)
tolerance (the progressive need for higher doses to secure the
(2) physical dependence
(the incidence of withdrawal symptoms when drug use is stopped),
(3) psychological centrality of the drug
in one's system of ends, and (4) a moral judgment of degradation
(or, in the contemporary terminology, drug abuse).
and physical dependence are often assumed to be inextricably linked
to each other and to psychological devotion and drug abuse. None
of these assumptions is, however, valid. Physical dependence does
not invariably occur in every situation where tolerance develops.
Tolerance and physical dependence, when linked, develop not only
with narcotics, alcohol, and hypnotics, but also with medical
administration of many other drugs in which neither psychological
devotion nor drug abuse occurs.
strikingly, it is now clear that, even with respect to narcotics,
alcohol, and hypnotics, tolerance and physical dependence are
not sufficient causal conditions of psychological devotion or
drug abuse. Many, perhaps most, persons who have developed tolerance
for and physical dependence on a drug do not become psychologically
devoted to it. Mere tolerance and physical dependence do not lead
to psychological devotion or abuse unless the user is aware that
the symptoms he may experience when the drug is stopped are symptoms
which resumption of
the drug would relieve. Even with such knowledge, psychological
devotion or abuse does not always result. Most Vietnam War veterans
who satisfied the requirements of tolerance, dependence, and knowledge,
did not on return exhibit psychological dependence.
it appears that neither psychological devotion nor abuse turns
on tolerance or physical dependence in any direct way. Persons
may become devoted to patterns of drug use even though their tolerance
and physical dependence is low. Some assert that this is the condition
of most American addicts.
patterns of devotion or abuse may arise for drugs, such as the
stimulants, which do not cause physical dependence.
psychological devotion and abuse do not appear to be permanent
states: many persons give up drug use in a natural process of
If physical dependence is neither necessary nor sufficient for
psychological devotion or abuse, the popular belief that the use
of certain drugs in itself leads to the enslavement of the user
must be doubted.
In fact, careful empirical
studies of the causes of drug devotion or abuse demonstrate the
importance, not of physiological dependence, but of social and
As of 1968 a
very large proportion of new heroin addicts in the United States,
for example, were young, psychologically dependent in their personality
structures, occupationally unskilled, socially deracinated, poor,
Many engaged in
crime before they were addicted; after becoming addicted they
turned to different kinds of crime more suited to maintain their
Many perceptive social analysts
have observed that such disadvantaged and alienated young people
find in heroin a kind of socially confirmed identity.
use may afford them an organizing focus. It generates its own
social tasks and standards of successful achievement, its own
forms of status and respect,
own larger meaning centering on the perceived qualities that the
drug brings to the users' personal experiences, such as relief
of anxiety and, sometimes, euphoric peace.
may value the very danger of drug use, seeing it as a challenge
to the dominant culture and an affirmation of their own values.
This perspective naturally leads one to question the conflation,
implicit in the concept of drug abuse, of psychological devotion
to drugs with a moral judgment of degradation. This conflation
cannot, as we have seen, be sustained on some ground that the
drug, in itself, immediately enslaves. There remains, however,
the objection to drug use in its psychologically organizing and
central role in the user's system of ends. The concept of addiction
expresses, then, a form of moral criticism, couched in the obscuring
language of "drug abuse," of such psychological centrality.
The nature of this moral criticism may be clarified by extending
it, by analogy, to other kinds of human behavior. Consider, for
example, addiction to love
or to wealth.
In both cases, the analogy is exact: the
concept of addiction does not, as we have seen, turn on physiological
factors like tolerance and dependence, but on a certain kind of
psychological centrality and some form of moral criticism thereof.
Love then can be an addiction when a certain attachment has psychological
centrality among the person's ends and when that centrality is
subject to criticism. The lover may be said to have lost his capacity
for "appreciation of and ability to deal with other things
in his environment, or in himself, so that he had become increasingly
dependent on that experience as his only source of gratification."
Wealth, correspondingly, is condemned as
an addiction when the pursuit of it has such centrality at the
inhumane cost of blinding the person to other fulfilling ends
in his life and to ethical concern for the lives of others.
Both arguments are intended as enlightened social criticism, pointing
up defects in the rationality or humanity of the ways in which
people structure their ends and lives. As long, however, as these
defective life plans do not lead the agent directly to violate
the moral rights of othersfor example, by engaging in violence,
robbery, or the likeno suggestion is made that these criticisms
should be expressed through criminalization. In a constitutional
democracy committed to equal concern and respect to autonomy,
we honor the rights of persons to live their lives as they choose;
we make our criticisms as part of a liberal culture offering pluralistic
visions of the good life.
In similar fashion, the gravamen of the moral criticism implicit
in the concept of drug abuse is the objection to the psychological
centrality of drug use among a person's ends. Sometimes, the objection
is put in terms of the propensity of addicts to commit violent
crime and thus violate the rights of others, but this rests on
false factual assumptions
or on causal
connections that the criminalization of drug use, not drug use
in itself, fosters.
We are left with
the normative judgment that the psychological centrality of drugs
in the user's life is unreasonable, because of the enormous risks
or "unbelievable sacrifices'
he undertakes or because of other values that he sacrifices. But
it is difficult to see how this moral criticism can be given the
normative weight that it is intended to bear, that is, to justify
the criminalization of drug use, consistent with the autonomy-based
interpretation of treating persons as equals. From this perspective,
persons are to be guaranteed, on fair terms to all, the capacity
to define with dignity and take responsibility for the meaning
of their own lives, evaluated and revised in terms of standards
and evidence which express higher-order interests in freedom and
rationality. As we have seen,
centrality of drug use for many young addicts in the United States
may, from the perspective of their own circumstances, not unreasonably
organize their lives and ends. In contrast, the moral criticism
implicit in the concept of drug abuse fails to take seriously
the perspective and circumstances of the addict, often substituting
competences and aspirations rooted in the critic's own background
and personal aspirations to organize a self-respecting social
identity, which might only exceptionally require drug use. Accordingly,
the moral content of the concept of drug abuse appears deeply
controversial. Certainly, it can bear no more just normative weight
than the criticism of love or wealth as addictions. Society is
not prepared to apply criminal sanctions in those cases because
of considerations that should apply to drug use as well: in a
society committed to equal concern and respect to autonomy, persons
are entitled to make their own trade-offs among basic personal
and social values. We certainly can criticize these decisions,
but we do not regard criminalization as an appropriate expression
of our condemnation.
From this perspective, Kant's identification of moral personality
with freedom from drug use is remarkably inconsistent with what
he wrote elsewhere about autonomy as the basis of moral personality.
In his central statements of ethical theory,
moral personality is described in terms of autonomous independencethe
capacity to order and choose one's ends as a free and rational
being. By comparison, in his discussion of drug use, this autonomous
freedom is isolated from any sovereignty over the qualities of
one's experience. It is impossible to square these views. Indeed,
the deeper theory of autonomy, Kant's central contribution to
ethical theory, requires the rejection of this unimaginative view
of moral personality. Kant meant to make the valid point that
it is immoral to abdicate or alienate one's autonomy or one's
capacity for self-critical choice about the form of one's life
through consent to any form of slavery. But Kant was wrong in
thinking that drug use involves a similar kind of alienation.
Voluntary use of drugs cannot reasonably be supposed to be a slavery
that alienates the moral personality, because even psychological
devotion to drugs may express not a physiological bondage, but
critical interests of the person. Indeed, there is something morally
perverse in condemning drug use as intrinsic moral slavery when
the very prohibition of it seems to be an arbitrary abridgement
of personal freedom.
B. Harms to Determinate Third Parties
As we have seen, the autonomy-based interpretation of treating
persons as equals yields a complex set of moral principles (those
of obligation and duty) that may justly be enforced by the criminal
law; these principles put constraints on the proper scope of criminalization
defined in terms of preventing harms and interpreted in terms
of higher-order rational interests of the person.
general, these principles do not justify absolute prohibitions
of drug use on the ground of preventing such harms to others,
for, as we saw in our discussion of criminogenesis, there is no
factual support for the proposition that many drugs currently
criminalized lead to violent attacks on the interests of others;
indeed, criminalization appears itself to foster, not combat,
such links of drug use to attacks on others.
Although absolute prohibitions of drug use cannot be sustained
on appropriate moral grounds, more limited and circumscribed moral
arguments might justify forestalling drug use in specific circumstances.
Decisions to use drugs do not occur in a vacuum: personal relationships
may relevantly alter our moral evaluation of the situation. Consider,
for example, moral obligations to third parties, which a person
who uses drugs may not be able to discharge. The central class
of such relevant relationships are those of a potential parent
to an unborn child. Parenthood is a role embedded in social institutions
of family and education and regulated by principles of justice
that assess rights and duties, benefits and burdens, in terms
of fairness and equity to parents, children, and society in general.
Voluntarily undertaking parenthood gives
rise to, among other things, a social obligation to perform one's
just parental role; in addition there are natural duties of parenthood
that likewise require appropriate action.
is a prima facie violation of such moral obligations to take drugs
that impair the well-being of the unborn child.
the extent that grave effects of such kinds may occur, drug taking
by parents during the relevant period of risk may be appropriately
Such moral obligations to determinate third parties, however,
clearly do not justify any absolute prohibition on drug use. The
requirements apply only to parents during the relevant periods
of risk, and only to drugs which create risks of irreparable or
serious harms. Such requirements might well apply to many drugs
not currently subject to any form of criminal penalty.
C. Harms to Society in General
A common argument for the criminalization of drug use centers
on alleged harms to society.
said that drug users display an "amotivational syndrome"
that deprives society of their performance for the public good,
or that forms of drug experience are subversive of basic institutions.
One natural form of this argument is to follow Benjamin Rush in
describing drug use as a form of suicide,
immoral for that reason. Both forms of self-destructive behavior,
it is argued, violate the citizen's duty of service to the state,
which has an interest akin to a property right in the lives and
services of its citizens. This is a prominent feature of Aristotle's
condemnation of suicide,
repeated with approval by Saint Thomas Aquinas
read into the Anglo-American legal heritage by Blackstone.
We shall investigate and criticize the underlying condemnation
of self-willed death, which this argument assumes, in the next
chapter's discussion of the right to die and the idea of one's
life as the state's property. To anticipate that discussion, we
may here note the conclusion of that argument: if the autonomy-based
interpretation of treating persons as equals means anything, it
means that the idea that other persons or institutions may have
property rights in our lives is radically misplaced. If so, a
general moral argument condemning drug use and suicide as self-destructive
behavior that deprives the state of services cannot be sustained.
There are means by which society may encourage performance for
the public good. Money and status may be used as incentives. But
as a free and rational being, a person has a right to choose a
way of life in which such performance plays no central role, assuming
minimal obligations of citizenship are met.
criminalization of such conduct is profoundly unjust, tantamount
to a violation of human rights.
If anything, criminalization probably exacerbates the self-destructiveness
of the conduct it ostensibly aims to combat. When criminal penalties
have not been used against heroin use, such as in the United States
prior to the Harrison Act
and in Great
Britain and European countries today,
use could be appropriately regulated and supervised. Users could
hold regular jobs and lead otherwise conventional lives.
By contrast, in the United States after
criminalization, the now illegal and unsupervised forms of heroin
use have become both more injurious
more likely to be associated with a socially unproductive criminal
Sometimes the argument for criminalization is put more generally
in terms of a right of existing institutions to protect themselves
from subversion. The history of attacks on drug use is typified
by arguments of this kind. The use of liquor in the United States
was identified with the Catholic immigrants and their subversive
came under attack, it was identified with Chinese influences from
which America, it was said, must be protected;
was associated with undesirable Hispanic influences on American
and cocaine with black influences.
It is difficult to see anything in these
claims but familiar sociological manifestations of cultural hegemony.
From the perspective of fundamental moral
theory, they certainly appear deeply question-begging: they assume
what should be in dispute, the moral legitimacy of existing institutions.
If existing institutions are illegitimate, their existence should
not be rendered immune from change; change, rather, is precisely
what is called for. Accordingly, this argument can fairly be credited
only after we have evaluated positively the prior question of
the legitimacy of existing institutions and their policies regarding
drug use. In fact, however, only conclusory claims are ever offered,
not critical argument.
In many cases, these claims are transparently baseless. Some forms
of currently criminal drug use would, if decriminalized, probably
have little effect on current American aims and aspirations; if
anything, there might be benign shifts to these drugs from currently
legal drugs such as alcohol.
the values invoked against certain forms of drug use are themselves
subject to criticism. For example, the current division in American
law between legal and illegal drugs distinguishes between drugs
that influence levels of arousal (the stimulants and depressants)
and those that affect the information-processing systems (the
hallucinogens, LSD, mescaline, and hashish); the former class
of drugs tends to be legal, the latter illegal.
of American culture have observed that this distinction reflects
an underlying value of facilitating work at particular tasks,
as illustrated by the illegality of drugs that introduce multiple
realities of experience, which may disturb focus on discrete productive
or technological tasks.
If one were
prepared to construe American values in crudely utilitarian terms,
with drug use evaluated solely in terms of its usefulness in maximizing
production, this calculus might make some sense. But there are
other fundamental values implicit in American constitutionalism,
including a respect for human rights, that would subject any such
arguments to fundamental moral criticism.
American arguments of institutional self-defense fail because
they do not take seriously the deepest values of human rights,
which American institutions express. Often, arguments of institutional
subversion merely reflect majoritarian distaste for new values
and ways of life which, on proper moral and constitutional analysis,
enjoy or should enjoy protection from majoritarian incursions.
Accordingly to protect such new life styles from the cultural
hegemony of the majority is not to subvert but rather to affirm
and vindicate the most enduring and defensible values on which
American institutions rest.
D. Social and Economic Justice
Consistent with the autonomy-based interpretation of treating
persons as equals, principles of distributive justice that would
require a certain distribution of wealth, property, status, and
opportunity would be agreed to or universalized.
it is suggested that certain forms of drug use are appropriately
criminalized in order to advance the more just distribution of
goods, on the ground that these forms of drug use are mainly a
temptation to the poor and a symptom of poverty. Accordingly,
decriminalization proposals are viewed skeptically: heroin, it
may be suggested, is the true opiate of the people, whereby the
anxieties and privations of their disadvantaged lives are temporarily
alleviated, but at the expense of incapacitating them for the
kind of political analysis and action required to attack the basic
injustices from which they suffer.
accordingly, is disfavored because it legitimates, by a misplaced
ideology of tolerance, the passive vulnerability of the poor to
One is initially struck by the lack of historical and cross-cultural
(including comparative law) perspective that this argument evinces.
Countries that do not use the criminal penalty appear to have
different patterns of drug use.
the United States prior to the Harrison Act, opium addicts appear
to have included many middle-class people, often women, for whom
opium was a medicinal agent in various nostrums.
composition of this drug-using population was probably decisively
shaped by criminalization, resulting in a disproportionate number
of addicts today among poor urban minorities.
criminalization is responsible for these shifts is borne out by
studies linking addiction to social and psychological factors.
If the condition of members of racial minorities who are heroin
addicts is to be ameliorated, decriminalization, not criminalization,
is the proper course. To the extent that criminalization itself
bears responsibility for the shifts in composition of drug users
to more disadvantaged persons, a sound theory of justice should
condemn, not endorse, a policy that appears to have worsened the
circumstances of the most disadvantaged classes.
it is observed that criminalization has clearly fostered injuries
incident to drug use, including death, that regulation and supervision
can lessen these dangers,
these injuries fall principally on the most disadvantaged classes,
the case against criminalization becomes very strong indeed.
Of course, strong principles of justice, consistent with the autonomy-based
interpretation of treating persons as equals, require that persons
should have equal prospects for self-respect and well-being.
Certainly, more equal opportunities and
conditions of life should be made available to racial minorities.
Criminalization of drug use, however, does not advance these ends;
indeed, it perversely aggravates injustice. Decriminalization
would not, as critics of the ideology of tolerance urge, increase
the vulnerability of the poor to exploitation;
it would release them from a morally empty stigma and from the
crime tariff industry which preys on them. Drugs would be cheaply and safely available, carefully regulated, and
with enough information to fully inform persons of risks and benefits.
The millennium of social justice would not be realized, but one
form of unjust exploitation, one form (sanctified by unjust moralism)
of blaming the victim, would be ended. Perhaps, in such circumstances,
more poor persons would use certain drugs than more fortunate
persons; perhaps not.
At least, however,
the poor would be extended some measure of dignifying respect
for their right to shape their own lives, undistorted by a false,
sanctimonious, and class-biased moralism that ideologically distorts
reality by underestimating the dangers in its own patterns of
drug use and overestimating the dangers in the drug use of others.
E. Paternalistic Arguments Against Drug Use
Even if no other moral argument on behalf of criminalization can
be sustained, it may still be argued that drug use is sufficiently
irrational conduct that there is moral title to interfere with
it on paternalistic grounds. This is, however, an argument that
is radically inappropriate to the defense of prohibitions of many
forms of drug use.
A radically inappropriate form of paternalistic interference is
grounded in the substitution of the interferer's own personal
ends for the ends of the agent. This form of paternalism fails
to recognize the fundamental principle that the agent's ends are
given and that the agent acts irrationally only when his action
frustrates them. This error is a frequent flaw in the paternalistic
assessment of forms of drug use, for people find it all too natural
facilely to substitute their own personal solutions for an imaginative
understanding of the perspectives of others. The temptations to
such paternalistic distortions are particularly strong in cases
in which conventional moral judgments mistakenly condemn certain
conduct, a fact which Mill dealt with by placing sharp limitations
on the proper use of paternalistic reasoning in these contexts.
The idea of human rights may, in part, be
understood as a prophylaxis against such abuses.
As we have seen in previous chapters, there is, however, a form
of paternalistic argument that may legitimately be raised, namely,
interference to preserve persons from certain serious irrationalities.
There are two critical constraints on such a principle. First,
the notion of irrationality must be defined in terms of a neutral
theory than can accommodate the many visions of the good life
compatible with moral constraints. For this purpose, rationality,
for any individual, must be interpreted relative to his own system
of ends, which is, in turn, determined by his appetites, desires,
capacities, and aspirations. Second, even within the class of
irrationalities so defined, paternalistic considerations would
properly come into play only when the irrationality is severe
and systematic, due to undeveloped or impaired capacities or lack
of opportunity to exercise such capacities, and when a
serious, permanent impairment of interests is in prospect.
It is initially important to distinguish two kinds of paternalism:
interference on the basis of facts unknown to the agent, in order
to save the agent from harms that he would wish to avoid, and
interference on the basis of values that the agent does not himself
share. Paternalism of the first kind, as applied in such laws
as those securing the purity of drugs, is unobjectionable. Paternalism
of the second kind, which underlies many laws currently criminalizing
drug use, is not only objectionable, it is a violation of human
On this basis, no good argument can be made that paternalistic
considerations justify the kind of interference in choices to
use drugs that is involved in the current criminalization of many
forms of drug use. Indeed, in many cases, such choices seem all
Drug use serves many disparate purposes: therapeutic care and
cure, the relief of pain or anxiety, the stimulation or depression
of mood or levels of arousal, the exploration of imaginative experience
for creative, aesthetic, religious, therapeutic, recreational,
or other purposes, and sheer recreative pleasure.
purposes are not irrational. To the contrary, the pursuit of them
may enable the person better to achieve his ends in general, or
to explore aspects of experience or attitudes to living which
he may reasonably wish to incorporate into his theory of ends.
There is almost no form of drug use which, in a suitably supportive
context and setting, may not advance important human goods, including
the capacity of some poor and deprived people to work more comfortably,
to endure adverse climactic and environmental
and in general to meet
more robustly and pleasurably the demands on their lives.
have centered themselves
on drug use, finding in drugs a matrix of religious and imaginative
experience in which to explore and sometimes realize their higher-order
interests in giving life intelligible meaning and coherence.
Some persons today find in the triumph of
technological society the reductio ad absurdum of certain
dynamics of Western culture and identify drug use as one organon
for cultivating a saner and more balanced metaphysical orientation
that expresses their most authentic and reasonable interests.
Some find even in "addictive"
drugs a way of life with more interest, challenge, and self-respect
than the available alternatives.
is dogmatic to assert that these and other people do not, through
drug use, more rationally advance their ends.
Sometimes the paternalistic argument is made that certain forms
of drug use, even if carefully regulated, may result in certain
clear harms to the user. For example, heroin use may lead to addiction,
certain organic disorders,
despite all proper precautions, to death.
long as any such irreparable harm to the person is in prospect,
it is argued, paternalistic interference is justified. Even if
certain of these alleged harms, for example, addiction, are morally
problematic and question-begging,
such as death, are not. The first requirement of just paternalism,
however, is that judgments of irrationality must rest on a neutral
theory of the good consistent with the agent's own higher-order
interests in rationality and freedom. Even intentionally ending
one's own life cannot, in all circumstances, be supposed irrational
under this criterion. If intentional killing is not always irrational,
neither, a fortiori, is drug use, in which the user makes trade-offs
between valued forms of activity and higher risks of death that
reasonable persons sometimes embrace. Certainly, the right of
persons to engage in many high-risk occupations and activities
is uncontroversial. Part of respect for human rights is the recognition
of the right of persons, as free and rational beings, to determine
the meanings of their own lives and projects, including the frame
of such plans at the boundaries of life and death. The values
that some persons place on drug use can be accorded no less respect.
Certainly, drug use does not enable a person to realize more than
is implicit in the interests and ambitions brought to the drug
but that indicates not
the frivolity or pointlessness of the experience, but its potential
seriousness for the kinds of spiritual exploration and risk-taking
by independent-minded and rational persons that should be centrally
protected in a free society.
At most, paternalistic concern for forms of irreparable harm might
dictate appropriate forms of regulation to insure that drugs are
available only to mature persons who understand, critically evaluate
and voluntarily accept the risks. To minimize pointless risks,
such regulations might insure that certain drugs, LSD, for example,
are taken only under appropriate supervision. In general, however,
there is no ground of just paternalism for an absolute prohibition
of such drugs.
The radical vision of autonomy and mutual concern and respect
is a vision of persons, as such, having human rights to create
their own lives on terms fair to all. To view individuals in this
way is to affirm basic intrinsic limits on the degree to which,
even benevolently, one person may control the life of another.
Within ethical constraints expressive of mutual concern and respect
for autonomy, people are, in this conception, free to adopt a
number of disparate and irreconcilable visions of the good life.
Indeed, the adoption of different kinds of life plans, within
these constraints, affords the moral good of different experiments
in living by which people can more rationally assess such basic
The invocation of inadequate
moral and paternalistic arguments of the kind discussed violates
these considerations of human rights, confusing unreflective personal
ideology with the moral reasoning that alone can justify the deprivation
of liberty by criminal penalty.
IV. DRUG USE AND CONSTITUTIONAL PRIVACY
I have thus far set forth a number of negative arguments to show
why various moral arguments condemning drug use are mistaken.
The remainder of the chapter will consider the affirmative case
for allowing forms of drug use, that is, for the existence of
rights of the person that include the right to use drugs. In this
way, the scope and limits of this right can be clarified, and
its relation to the personal ideals secure from state intervention
can be addressed.
As Chapter 2 argued, the constitutional right to privacy may be
interpreted, consistent with the human rights perspective embodied
in the Constitution, as subjecting the scope of the criminal law
to constitutional assessment and criticism in terms of the autonomy-based
interpretation of treating persons as equals. The United States
is a constitutional democracy committed to the conception of human
rights as an unwritten constitution, in terms of which the meaning
of constitutional guaranties is to be construed. It is wholly
natural and historically consistent with constitutional commitments
to regard the autonomy-based interpretation of treating persons
as equals as the regulative ideal in terms of which the public
morality, which the criminal law expresses, is to be interpreted.
Sometimes this thought has been expressed, as a rough first approximation,
in terms of the harm principle, the principle that the state may
impose criminal sanctions only on conduct which harms others.
The present account has tried to reformulate the thought in terms
of the autonomy-based interpretation of treating persons as equals,
and has tried to show how this conception imposes specific constraints
on the kinds of principles that may permissibly be enforced by
the public morality. The traditional idea of "harm,"
for example, appears in the account, but is interpreted in terms
of the rights of the person, in contrast to Mill's utilitarian
A corollary of this way of thinking is that, when the scope of
the criminal law exceeds such moral constraints, it violates human
rights. The constitutional right to privacy expresses a form of
this moral criticism of unjust overcriminalization, and may be
understood as a convergence of three viewpoints. These include,
first, the view that the traditional moral argument for criminalization
is critically deficient, and, indeed, demonstrably fails to respect
human rights. A second element is an antipaternalistic feature.
The still extant force of the invalid traditional moral arguments
distorts the capacity to see that certain traditionally condemned
life choices may be rationally undertaken. Paternalistic interference
is tolerated and even encouraged, when, in fact, such interference
cannot be justified. Third, there is a strong autonomy-based liberty
interest in protecting human dignity from the invasions of moralism
In light of this convergence of factors, it is natural to expect
that the constitutional right to privacy would have been aggressively
invoked to invalidate prohibitions on drug use, as it was in sexual
and, more recently, right-to-die contexts.
In fact, aside from a free exercise of religion
case not directly relevant to constitutional privacy issues, in
only one notable case, Ravin v. State
a court unequivocally pursued such a privacy argument to strike
down prohibitions of marijuana use in the home. Even the Ravin
court, however, refused to attach the right to drug use in
itself, finding the privacy right to arise out of the home context
In short, American courts
seem disinclined to pursue privacy arguments in contexts of drug
use because they fail to identify drug use as a basic life choice.
In my view, this judgment cannot withstand critical examination.
In order to understand why decisions to use drugs are embraced
by the constitutional right to privacy, it is necessary to draw
together earlier observations regarding the idea of human rights,
the values of dignity and moral personality that it encompasses
and should protect, the unjust moral argument that often underlies
prohibitions of drug use, and the necessary implications of these
ideas and values for the protection of certain forms of drug use.
Even if decisions to use drugs were, in fact, rarely or never
made or acted on, the right to so decide is, for reasons now to
be explained, fundamental.
I have interpreted the human rights perspective in terms of the
autonomy-based interpretation of treating persons as equals, which
includes respect for the higher-order interests of persons in
freedom and rationality. One central component must be respect
for the capacity of personsbeings capable of critical self-consciousnessto
regulate and interpret their experiences in terms of their own
standards of reasonable argument and evidence. Thus, both historically
and as a matter of moral principle, respect for independent religious
conscience and for principles of religious toleration have been
at the heart of evolving ideas of human rights. Historically,
respect for religious belief has expressed what is today regarded
as the deeper principle of respect for individual conscience,
the right of persons independently to evaluate and control their
Commitment to this basic moral principle requires a neutral respect
for evaluative independence. But this principle is, as we have
violated by the moral perfectionism
that has dominated the American approach to drug control. Indeed,
this moral perfectionism attacks the very foundations of evaluative
independence; for it seeks to inculcate through law a kind and
quality of subjective human experience modeled after a religious
ideal of rigid self-control dedicated selflessly to the good of
others. In the place of independent control over and evaluation
of one's own experience, we have a reigning orthodoxy. Majoritarian
legislatures seek to enforce a kind of secularized version of
the religious technology of self-mastery.
state, consistent with the autonomy-based interpretation of treating
persons as equals, has no just role adjudicating among or preferring,
let alone enforcing, one such technology over another. Such a
use of state power is precisely the form of content-based control
over ways of life, thought, and experience against which constitutional
Indeed, the enforcement
of perfectionist ideals expresses precisely the contempt for autonomous
evaluative independence and self-control that should trigger appropriate
constitutional attack and remedy.
It may be objected that drug experience is not the kind of subjective
experience protected by constitutional principles of toleration.
This is not an argument; rather it is an
expression of the long American tradition of the public morality.
This tradition cannot, as has been shown, be sustained. It is
based on untenable forms of moral argument and is, on examination,
inconsistent with deeper constitutional values to which all espouse
fundamental allegiance. It fails to observe constitutional constraints
on the kind of harm that may be the object of criminal penalties;
indeed, ideologically, it seeks supremacy for its own model of
self-mastery through the criminal law in the way that constitutional
morality clearly forbids. In short, since this common sense of
public morality cannot be sustained, higher-order interests in
freedom and rationality would identify respect for choices to
use drugs as an aspect of personal dignity that is worthy of protection
under the constitutional right to privacy, and call for its implementation
by courts and legislatures.
A fair-minded respect for this right will assure respect for the
pluralistic cultures and ways of life which different patterns
of drug use embody and which have been heretofore lacking in America's
cultural life. Patterns of drug use are implicitly ideological:
alcohol use, for example, is often associated with cultural patterns
in which aggressiveness plays a central role; use of marijuana,
in contrast, is associated with more peaceful and inward ways
Respect for the right of drug
use would preserve individual and subcultural experience and experiment
from a majoritarian cultural hegemony, rooted in a crude and callously
manipulative utilitarianism. There is no good reason why this
utilitarian ideology has been permitted to go unchallenged as
the governing American ideal in matters of drug policy; it trivializes
our vales into simplistic subservience to technological civilization
and fails to take seriously American ideals
of human rights and their implications for a pluralism of spiritual
We may summarize the implications of this right to use drugs in
terms of the background moral principles, expressive of the autonomy-based
interpretation of treating persons as equals, which define its
limits. The principle of autonomy in matters of drugs does not
apply to persons presumably lacking rational capacities, such
as young children, nor does it validate the use of particular
drugs in circumstances where they would lead to the infliction
on others of serious bodily harm. There is no objection, for example,
to the prohibition of drugs whose use demonstrably leads to violence
or to limitations of drug use in certain
contexts, such as before driving. In addition, the liberty of
drug use includes the right of others to avoid involvement in
the drug experience. There would be no objection therefore, to
reasonable regulations of the time, manner, and place of drug
use, or of the obtrusive solicitation of drug use.
Finally, it is important to remind ourselves, yet again,
that there are limits to an argument grounded
in human rights of the kind here presented. To say that a person
has a human right to do an act is to make a political and legal
claim that certain conduct must be protected by the state from
forms of coercive prohibition. To assert the existence of such
a right is not to assert that it should be exercised. The latter
question is an issue of personal morality. Its disposition may
turn on considerations that have no proper place in questions
of political and legal morality.
To say, therefore, that people have a human right to use drugs
is not to conclude that everyone should exercise this right. For
example, a person might justifiably invoke certain perfectionist
ideals in declining to use drugs. These ideals might include religious
dedications or purely secular conceptions that the control and
cultivation of aspects of personal competence and subjectivity
are inconsistent with drug use. Certainly, such ideals cannot
justifiably be invoked to qualify our general rights of autonomy,
for self-respect and fulfillment do not require conformity to
such ideals. Even as personal moral ideas, however, perfectionist
notions may be criticized as inhumanly rigid, masochistically
manipulative, directed at questionable moral aims, and insensitive
to the values of spontaneity and humanely varied experience. Nonetheless,
an individual may justifiably espouse a moral ideal, regulate
his or her life accordingly, and criticize others for not observing
as humane an ideal in their personal lives. However, legal enforcement
of such an ideal wrongly imposes a personal ideal upon persons
who may find it unfulfilling or even oppressive and exploitative.
V. BEYOND DECRIMINALIZATION
This chapter has tried to establish that there are no good moral
arguments for criminalizing many forms of drug use, and that their
punishment is a violation of the rights of the person. A basis
has thus been laid for a much less confining view of the range
of regulatory alternatives for drug use. Five alternatives will
briefly be considered: the vice model; licensing; regulations
of place, time, and methods; no regulation at all; and forms of
compulsory civil commitment for cure. It will be assumed throughout
that per se criminal prohibitions of drug use have been repealed,
otherwise invalidated, or sharply circumscribed.
A. The Vice Model
The vice model, to which some American jurisdictions appear to
be moving in the area of the control of marijuana use,
eliminate or reduce to the de minimis level any sanction
for the use of drugs, but would continue criminal sanctions for
commercial drug sales.
An analogy may
be drawn to the control of other forms of commercialized vice,
such as prostitution and gambling. These activities are, it is
argued, vices, and although it may be desirable not to subject
the buyer to criminal penalty, it would untowardly legitimate
them if penalties for the seller were eliminated.
Although one can understand the political attractions of the vice
model as a kind of interim political strategy of decriminalization,
it makes no sense as a matter of moral and constitutional principle.
Certainly it cannot be regarded as a moral desideratum, for it
begs the question at issue: the moral propriety of criminal penalties
in this area. Furthermore, it perpetuates the crime tariff and
its ancillary evils. Most decisively, it is inconsistent with
the view of human rights here adduced. If there is a human right
to some form of activity, which reasonably includes buyers and
sellers within the scope of the right, the right must attach to
both, unless there are convincing arguments to the contrary. Traditional
arguments differentiating the legal treatment of user and seller
are often themselves morally questionable, reflecting unjust,
indeed immoral, assumptions that have no proper place in the enforcement
of law. One example is the sexist assumption that prostitution
is an evil for the female prostitute, but not for the male patron.
If there are regulatory concerns appropriate to the sale of drugs,
they can be pursued by appropriate regulatory measures tailored
to meet these concerns, not by perpetuating uncritical moral assumptions
that, in fact, are clearly violative of human rights.
Proposals for the licensing of drugs take two forms: the licensing
of sale and the licensing of use. The purpose of licensing is
to collect the names of sellers or users on a public record, both
to facilitate regulation of terms of salesuch as price, place
of business, and solicitation or useand to facilitate regular
inspections to secure compliance with regulations or, in the case
of use, for reasons of medical prophylaxis.
general, licensing is an appropriate prerequisite to valid exercise
of some form of service, sale, or use, when incompetence in the
activity will disastrously affect human interests, and the licensing
scheme might appropriately reduce such incompetence.
Licensing schemes are familiar in the United States in the sale
of legal drugs. New drugs must, for example, satisfy rigorous
government tests before they may be marketed. Drug manufacturers
in general must satisfy various requirements as to the purity
and safety of their drugs and the integrity of their manufacturing
and solicitation. Further, the local sale of some drugs, for example
alcohol, is typically licensed.
the event of the decriminalization of various forms of drug use,
such licensing of sale would be appropriate to insure the purity
and effectiveness of the drug for the purpose claimed. In some
cases, the licensed seller could be required to withhold the drug
from a buyer, as is presently appropriate with a person already
drunk who is about to drive.
In addition, some forms of legal drugs require a medical prescription,
which is a kind of license permitting the drug's sale and use
in certain circumstances.
of the physician by the state as a competent medical professional
empowers him or her in turn to license the sale and use of drugs,
exercising proven medical competence to minimize and regulate
the possibly disastrous effects of certain forms of drug use.
In the event of decriminalization, some form-of the medical license
would, most plausibly, be required for heroin use. Such forms
of heroin maintenance have long existed in England and elsewhere
providing heroin users with
medical care and supervision to minimize the kinds of ills to
which the American street addict is tragically subject.
decisively, such licensing, whether in the form of prescriptions
by individual physicians or special clinics (which may be more
would be consistent with
the argument of human rights here offered. It has been argued
above that even drugs with risks of dangers should, assuming reduction
of pointless risks, be made available to persons who, as free
and rational beings, want them.
of this kind would assure supervised availability of such drugs
in a context of concerned rational dialogue. In contrast to the
sadistic isolation that current law compels, the person desiring
the drug could reasonably and voluntarily assess the risks and
benefits of its use, and be accorded the respect of self-determination
if he or she wished it.
A comparable licensing scheme, which would extend as well to supervision
of the entire drug-taking process, may be appropriate for hallucinogens
such as LSD and mescaline.
which may reasonably be taken for therapeutic, religious, creative,
or recreational reasons,
require concerned, intelligent, and experienced supervision in
order to minimize untoward and undesired risks.
risks cannot be eliminated entirely; moreover, as was argued above,
free and rational persons have a right to take them. A licensing
scheme would ensure competent expertise to reduce pointless risks.
Some critics of existing American drug law have recommended a
general form of licensing for the use of drugs such as marijuana,
including a complex federal bureaucracy, record keeping, tests
of adequate setting for receptivity to the drug, and the like.
If such a suggestion would be inappropriate
in the cases of such drugs as alcohol or nicotine, it would seem,
a fortiori, that it should be rejected in the case of marijuana.
By almost every secular measure of harm, alcohol and nicotine
are more harmful than marijuana,
yet they are not subject to regulation in the form of licensing.
In fact, the very predicate for any such intrusive licensing scheme,
namely, the need to secure levels of competence that minimize
irreparable harm, is quite absent in the case of marijuana, for
there is no empirical support for the proposition that marijuana
causes irreparable harm.
The argument is conventionally made, in this connection, that
although no such irreparable harm is now apparent, it may be so
in the future, and that this possibility necessitates the present
regulation of drugs like marijuana.
argument is hypocritical, for it fails to face the already evident
harm incident to use of alcohol, nicotine, and other legal drugs,
and more importantly, it fails to take seriously
the autonomy-based foundation of constitutional morality. The
principle that autonomous individuals should be treated as equals
places the burden on the state to show harm as the predicate for
just criminalization. In the clear absence of such a showing,
the presumption must and should be for unregulated usage of the
C. Regulations of Place, Time, and Method
In addition to the licensing proposals already discussed, regulations
of place, time, and method of drug sale and use may take a number
of forms. To minimize obtrusive solicitation of unwilling buyers,
two strategies are suggested by the European regulation of commercial
sex: one is the English prohibition of public street solicitation,
so that solicitation must take place through ambiguously worded
advertisements in various journals and in certain well-known locations.
Another is the continental European solution
of zoning, whereby solicitation is permitted only in certain well-known
districts of the urban centers.
In addition to appropriate forms of solicitation regulation and
zoning, and the licensing regulations already discussed (including
the limitation of certain drug use to regulated contexts), consideration
should be given to appropriate regulation of advertising and public
education relating to drugs. While persons may have a right to
take potentially harmful drugs, there is no duty on the state
to encourage them to do so. To the contrary, to the extent that
the state has a duty to insure that these risks are undertaken
only by free and rationally informed persons, it may have a duty
to regulate drug advertisement. Such regulation might require
vivid reminders of possible harm
insist that programs of public education, in the schools and elsewhere,
continually communicate a fair and realistic picture of this harm
to counter otherwise exploitative and manipulative commercial
advertising campaigns. While such campaigns have been organized
it is strikingly
anomalous that the real harms of liquor are not comparably recited
In the event of decriminalization,
a fair governmental regulation of drug advertising must insist
that the comparative harms of drugs be fully revealed.
It has been suggested that, after decriminalization, the state
should neither license nor regulate the use of drugs, and instead
enforce only the existing criminal laws against force and fraud.
Under this view, regulations are the hypocritical
and moralistic subterfuges of those who seek to accomplish by
regulation what they cannot legitimately achieve by prohibition.
These arguments for laissez-faire understate the sound reasons
for a properly framed regulatory program. They are also reminders
that, in a nation like the United States with its long cultural
history of prohibitory drug laws, it is necessary to guard against
the distortion and disfigurement of the just aims of appropriate
regulatory programs that unjust moralism might engender. The history
of civil commitment for addicts provides a warning of such consequences.
E. Compulsory Civil Commitment
One alternative to decriminalization that has been tested in the
United States is compulsory civil commitment both of addicts and
Such programs rest on the
idea that addiction is a disease, for which the user is not morally
culpable. Accordingly, just as criminal penalty for mental disease
would be unjust and probably unconstitutional,
sanctions are not the appropriate legal tool to handle addicts.
Rather, a medical model of compulsory care and cure is in order,
i.e., compulsory civil commitment.
This model for the treatment of drug use is based on an untenable
attempt to interpret, as a medical problem of disease and defect,
forms of drug use which, in the context of the agent's own interests
and perspectives, are often not unreasonable.
this extent, the medical conception of addiction as a disease
is intrinsically ideological, reproducing in medical terms larger
conventional moral judgments that condemn such forms of drug use.
Accordingly, to combine decriminalization
with compulsory civil commitment would be simply to reproduce
and reinforce the underlying violation of human rights caused
by both these approaches.
VI. CONCLUSION: AGAINST PROHIBITION
We have argued that judgments of the immorality of drug use are
wrong; indeed, the right to use many drugs currently criminalized
is one of the rights of the person which the state may not transgress.
We have identified as the basis for these powerful moral judgments
a formerly religious but now secular ideal of moral perfectionism,
and have tried to show why this ideal cannot, consistent with
human rights, be enforced through the criminal law.
In conclusion, we may take a more affirmative stance against the
prohibitory force of this perfectionist ideal in the area of drug
use, recognizing, first, the deep tension that exists between
the enforcement of this ideal and a basic respect for the person
and, second, the existence of a moral evil in enforcing a Manichean
ideal through the medium of the law.
First, temperance has, since Plato,
identified as a moral virtue, a desirable and appropriate character
trait for every good person. The sense of temperance in Plato,
however, is not that of the American temperance leagues. It is
not the elimination from human life of all intoxicants, euphoriants,
hallucinatory visions, or ecstasies of the transcendence of self,
but the control of such experiences in the service of a balanced
and humane life. Temperance, in this classical sense, assumes
that ordinary people of good will have the capacity, when treated
with decent respect, to regulate their own lives. When they fail,
they do so as responsible beings who themselves ultimately bear
the costs and degradation of their own disorder. When the perfectionist
ideal in the United States took the form of compulsory prohibition
of certain forms of drug use, it not only misinterpreted temperance,
substituting an absolute prohibition for the Platonic balance
and moderation, but it also deprived persons of the experience
that makes virtuous action worthy of respect: namely, the self-mastery
of appetite and temptation. In aspiring to create a New Jerusalem
of saints, the moral perfectionists failed to observe the boundary
conditions of minimal respect for human persons.
Second, the perfectionist ideal, implicit in America's prohibitory
drug laws, is Manichean. Drug users are branded as the Puritans
branded their deviants: evil and willful outcasts whose criminal
stigma reflects the demarcation between the ideals of the saints
and the inexplicable and satanic evils of the sinner.
have disclosed this cruel vision for what it is: not a critical
moral judgment, but a remnant of a sectarian ideology secularized
into a moral ideal of emotional self-control. Such a conception
fails to acknowledge the confluence of condemned forms of drug
use and reasonable human interests and aspirations and isolates
and denies both the common humanity underlying many disparate
styles of life and the cultivation of experience they reflect.
The moral condemnation of forms of drug use reflects such isolation
and denial, disfiguring the reasonable perception of the forms
and ways we cultivate experience. It draws sharply moralistic
distinctions between the decent and the indecent which reflect
no consistent or defensible theory of harm, and which blinds social
perception to the underlying moral reality of a continuum of personal
modes of expression and fulfillment. The consequence is the remarkable
spectacle of harmless conduct transmogrified by a perverse social
imagination into a powerful stereotype of radical evil. Moreover,
the balance of harm and good implicit in all patterns of drug
use is dramatically shifted to the self-fulfilling prophecy of
the worst possible consequences of drug use. We know that patterns
of drug use fit into larger patterns of social intercourse, which
often ameliorate the harms of the drugs and magnify their social
and human benefits.
The American prohibitionist
perfectionism, expressing a moral theory of extirpation and total
denial, has not only failed to foster the kind of framework of
legal regulation that could facilitate such social patterns, it
has insured that its own vision of radical evil will produce the
worst possible consequences for drug users and society at large.
This vision appears to feed on itselfimmune
to evidence, ferocious in the extent of penalties it is prepared
to impose, and savage in its violations of basic human rights.
We must, I believe, disencumber our conception of criminal justice
of these perfectionist ideals, which pursue no aspiration that
the state may justly compel and which work violence to basic human
1. See, e.g., E. Brecher, Licit and Illicit Drugs (1972);
J. Kaplan, Marijuana---The New Prohibition (1970); T. Szasz,
Ceremonial Chemistry (1974); N. Zinberg & J. Robertson,
Drugs and the Public (1972). (back)
2. The general pattern of legal treatment of drug use in the United
States is set by the Comprehensive Drug Abuse Prevention and Control
Act, 21 U.S.C. §§ 801-966 (1976). For discussion of
its terms, see O. Ray, Drugs, Society, and Human Behaviour
24-28 (1972). State codes also prohibit drug use. See, e.g.,
Uniform Controlled Substances Act; N. Y. Pub. Health Law
§§ 330a3396 (McKinney 1980). There has been some change
in the legal treatment of drug use only with respect to marijuana.
The Comprehensive Drug Abuse Prevention and Control Act reduced
federal penalties for marijuana possession. See E. Brecher, supra
note 1, at 420. One state supreme court has invoked the right
to privacy from its state constitution to invalidate criminal
penalties on the use of marijuana in the privacy of one's home.
See Ravin v. State, 537 P.2d 494 (Alaska 1975); cf. People
v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972); (plurality
opinion) (classification of marijuana as a narcotic held violative
of equal protection). But cf. State v. Kantner, 53 Hawaii
327, 493 P.2d 306, cert denied, 409 U. S. 948 (1972) (classification
of marijuana as a narcotic not violative of equal protection).
In recent years, several states have decriminalized the possession
or use of small quantities of marijuana. See 1976 Ann. Survey
Am. L. 343-57. For a recent update, see Sheinman, "The
Latest Dope on Pot Laws," High Times, Apr. 1980, at
52-54. For various arguments in the legal literature supporting
these and other developments, see Kurzman & Magell, "Decriminalizing
Possession of All Controlled Substances: An Alternative Whose
Time Has Come," 6 Contemp. Drug Prob. 245 (1977);
Neier, "Public Boozers and Private Smokers," 2 Civ.
Lib. Rev. 41 (Spr. 1975); Weiss & Wizner, "Pot, Prayer,
Politics and Privacy: The Right to Cut Your Own Throat in Your
Own Way," 54 Iowa L. Rev. 709 (1969); Comment, "State
Interference with Personhood: The Privacy Right, Necessity Defense,
and Proscribed Medical Therapies," 10 Pac. L.J. 773
(1979); Note, "Marijuana Prohibition and the Constitutional
Right of Privacy: An Examination of Ravin v. State," 11
Tulsa L.l. 563 (1976). (back)
3. For example, John Kaplan, author of the most notable attack
on the criminalization of marijuana use, focused on utilitarian,
cost-benefit arguments. Although he briefly noted the moral argument,
he quickly put it aside. J. Kaplan, supra note 1, at 292-93. (back)
4. L. Goodman & A. Gilman, The Pharmacological Basis of
Therapeutics 1 (6th ed. 1980). (back)
5. R. Julien, A Primer of Drug Action 2-6 (2d ed. 1978). (back)
6. This viewpoint is now commonplace in the serious literature
on drug use. For general discussions of drug use that encompass
alcohol, caffeine, and nicotine, see E. Brecher, supra note 1,
at 193-266; L. Goodman & A. Gilman, supra note 4, at 135 50
358-70, 588-92; R. Julien, supra note 5, at 60 70, 90-97; O. Ray,
supra note 2, at 78-117. (back)
7. See generally L. Goodman & A. Gilman, supra note 4. (back)
8. Id. at 37-347. (back)
9. See, e.g., O. Ray, supra note 2, at 157-77. (back)
10. See, e.g., L. Grinspoon & J. Bakalar, Psychedelic Drugs
Reconsidered 267-75 (1979); R. Masters & J. Houston,
The Varieties of Psychedelic Experience 247-313 (1966).
See also W. James, The Varieties of Religious Experience 299-336
11. For descriptions of the range of uses to which psychedelic
drug experience may be put, see L. Grinspoon & J. Bakalar,
supra note 10; R. Masters & J. Houston supra note 10. See
also O. Ray, supra note 2, at 212-67; B. Wells, Psychedelic
Drugs il2-49, 170-212 (1973). (back)
12. See L. Grinspoon, Marijuana Reconsidered 202-6 (1971). (back)
13. See R. Wasson, Soma: Divine Mushroom of Immortality (1968).
Residues of shamanism persisted in the Old World, and flourished
in the pre-Columbian era among the Indians of Central and South
America. See generally 1. Lewis, Ecstatic Religion (1971);
see also L. Grinspoon & J. Bakalar, supra note 10 at 38-42. (back)
14. See L. Grinspoon & J. Bakalar, supra note 10, at 38-55;
M. Harner, Hallucinogens and Shamanism (1973); 1. Lewis,
supra note 13, at 39, 160. For discussion of the range of narcotic
plants used for such purposes, see W. Emboden, Narcotic Plants
(1979)- R. Heffern, Secrets of the Mind-Altering
Plants of Mexico (1974); Schultes, "Botanical Sources
of The New World Narcotics," in G. Weil, R. Metzner, &
T. Leary, The Psychedelic Reader 89-110 (1965). For a skeptical
discussion of the religious role of psychoactive drugs in early
human cultures, see R. Blum, 1 Society and Drugs 22-23
15. See M. Harner, The Way of the Shaman (1980), in which
a student of the healing properties of shamanic practices attempts
to adapt them to western needs and practices. (back)
16. For an excellent study of the complex functions of the shaman
in these societies, see 1. Lewis, supra note 13. (back)
17. See id; G. Reichel-Dolmatoff, The Shaman and the laguar
18. For one suggested answer to this conundrum, see R. Wasson,
supra note 13. (back)
19. Id. at 346. (back)
20. See R. Wasson, C. Ruck, & A. Hofmann, The Road to Eleusis
21. J. Allegro, The Sacred Mushroom and the Cross (1970). (back)
22. St. Augustine appears to have identified mushroom eating and
its associated hallucinogenic effects as one of the condemned
vices of the Manichean Gnostics. See R. Wasson, supra note 13,
at 71, 191. The association of such experiences with heresy reveals
a sharp distinction between Christianity and shamanic religions
of ecstasy. See 1. Lewis, supra note 13, at 39-40, 132, 174-75. (back)
23. See M. Harner, "The Role of Hallucinogenic Plants in
European Witchcraft," in Hallucinogens and Shamanism 124-50
(1973). But see N. Cohn, Europe's Inner Demons 21924 (1975). (back)
24. See W. La Barre, The Peyote Cult 23-24 (4th ed. 1975);
G. Reichel-Dolmatoff, supra note 17, at 3 18; Schultes, supra
note 14, at 99, 101. (back)
25. R. C. Zaehner, Mysticism Sacred and Profane (1969). (back)
26. Id. at 121-22. (back)
27. Id. at 24-26. Zaehner argued that St. Paul's apparent condemnation
of attending the divine service while intoxicated indicates that
no form of drug-induced experience is to have any role in Christian
religious experience proper. See also R. C. Zaehner, Zen, Drugs
and Mysticism (1972). (back)
28. In praise of Dionysus, god of wine, Euripides wrote:
of Semele, who when the gay-crowned feast is setEuripides, The Bacchae, in The
Bacchae and Other Plays 192-93 (P. VeDacott trans. 1954). (back)
Is named among
gods the chief;
Whose gifts are joy and union of soul in dancing,
Joy in music of flutes,
Joy when sparkling wine at feasts of the
Soothes the sore regret,
Banished every grief,
When the reveler
rests, enfolded deep
In the cool shade of ivy-shoots,
soft pillow of sleep.
29. See Plato, "Symposium," in The Collected Dialogues
of Plato 527-74 (E. Hamilton & H. Caims eds. 1961). For
a good history of alcohol use, see R. Blum, supra note 14, at
30. Thus, Aristotle observed that the penalty for a crime was
doubled if it was induced by drunkenness. Aristotle, Nicomachean
Ethics 1113b30 at 65 (M. Ostwald trans. 1962). (back)
31. See Montaigne, "Of Drunkenness," in The Complete
Essays of Montaigne 247 (D. Frame trans. 1965). (back)
32. Coffee drinking, for example, was the object of vigorous social
criticism when introduced, and coffeehouses were sometimes outlawed
as hotbeds of sedition. See O. Ray, supra note 2, at 108 10; cf.
E. Brecher, supra note 1, at 195-98. For an example of the risqué
connotations associated with coffee drinking, see Bach's "Coffee"
Cantata BWV. 211. Correspondingly, tobacco smoking, when introduced,
was both condemned and legally outlawed, in one case on penalty
of death. See E. Brecher, supra note 1, at 209-13. Cf. O. Ray,
supra note 2, at 95-100. See generally R. Blum, supra note 14,
at 87-114. (back)
33. On the contrast between fermented and distilled alcohol products,
see O. Ray, supra note 2, at 79-81. (back)
34. See Engravings by Hogarth plates 75 and 76. (S. Shesgreen
ed. 1975). (back)
35. See G. Williams, The Radical Reformation 303 (1962). (back)
36. See Bainton, "The Churches and Alcohol," Alcohol,
Science and Society 287-98 (Quarterly Journal of Studies on
Alcohol 1945). (back)
37. See G. Williams, supra note 35, at 183, 191, 265; Bainton,
supra note 36, at 287-98. (back)
38. See C. Hill, The World Turned Upside Down: Radical Ideas
During the English Revolution 198-203 (1975). (back)
39. See G. Williams, supra note 37, at 303. George Fox, the Quaker
leader, suggested that "the saints' bodies are the members
of Christ and the temples of the living God," C. Hill, supra
note 38, at 323. (back)
40. See B. Rush, An Inquiry into the Effects of Ardent Spirits
upon the Human Body and Mind (1814) reprinted in Y. Henderson,
A New Deal in Liquor 185-221 (1935). (back)
41. Id. at 208-09. (back)
42. Examples of this type of harm given by Rush include liver
obstruction, jaundice and dropsy, coughs, diabetes, belchings,
epilepsy, gout, and madness. Id. at 193-94. (back)
43. Such social harms include, wrote Rush, garrulity, captiousness,
"uncommon good humour," profane swearing, disclosure
of secrets, rudeness, immodesty, "clipping of words,"
fighting, and "extravagant" action. Id. at 190-91. (back)
44. Id. at 197. (back)
45. Id. at 213. (back)
46. Id. at 211. (back)
47. See, e.g., L. Beecher, Six Sermons on the Nature, Occasions,
Signs, Evils, and Remedy of Intemperance (1827). (back)
48. For standard examples of the kind of approach taken, see W.
Hammaker, A . Ivy, E. Palmer, et al., The Christian Case for
Abstinence (1955); Temperance Selections a Bechtel
ed. (1970), first published 1893). (back)
49. For discussions, by contrast, of serious Biblical studies,
see F. Kermode, The Genesis of Secrecy: On the Interpretation
of Narrative (1979); S. Neill, The Interpretation of the
New Testament 1861-1961 (1966). (back)
50. See note 236 infra. (back)
51. For a history of this transition, see J. Kobler, Ardent
Spirits: The Rise and Fall of Prohibition 23-218 (1973); P.
Odegard, Pressure Politics: The Story of the Anti-Saloon League
52. See note 41, supra. (back)
53. Thus one apologist for prohibition argued that because of
the stepping stone effect (from fermented to distilled liquor),
"the moderate drinker's personal liberty must yield to the
superior right of the State to protect its interests." D.
Colvin, Prohibition in the United States 588 (1926). (back)
54. Id. at 587. (back)
55. Id. (back)
56. The definition of the feminine role as "expressive"
and the ideology of the superior moral sensibility of women in
nineteenth-century America and England grew, under the mutually
reinforcing influences of Calvinist preachers, sentimental novelists,
and pseudoscientists, into a politically powerful, sentimental
ideology. See notes 77102 and accompanying text, Chapter 3, supra;
see also D. Pivar, "The New Abolitionism: The Quest for Social
Purity, 1876 1900," (1965) (Ph.D. dissertation, available
from University Microfilms, Ann Arbor, Mich.). (back)
57. Delicate, asexual, and inward-looking, women were thought
to need protection, found in the sanctuary of the home, from the
polluting contagion of the "masculine" world. See generally
N. Cott, The Bonds of Womanhood 64 98 (1977); C. Degler,
At Odds: Women and the Family in America from the Revolution
to the Present 249-327 (1980); A. Douglas, The Feminization
of American Culture 44-79 (1977); L. Stone, The Family,
Sex and Marriage in England 1500-1800, 666-80 (1977). (back)
58. See note 51 supra. (back)
59. See C. Degler, supra note 57. See also l. Kobler, supra note
51, at 131-65. (back)
60. See note 55, supra. (back)
61. D. Colvin, supra note 53, at 587; cf. C. Degler, supra note
62. See note 236 infra. (back)
63. For pertinent history, see J. Kobler, supra note 51, at 221-354. (back)
64. See generally D. Musto, The American Disease: Origins of
Narcotic Control 1-209 (1973). (back)
65. See L. Grinspoon, Marihuana Reconsidered 15-29 (1971);
D. Musto, supra note 64, at 210-29. (back)
66. Opium use has been traced to ancient Sumeria, and it is mentioned
in The Iliad. See C. Terry & M. Pellens, The Opium Problem
53-93 (1928). See also Macht, "The History of Opium and
Some of its Preparations and Alkaloids," 64 J. Am. Med.
Ass'n 477 (1915). (back)
67. See A. Hayter, Opium and the Romantic Imagination
191-225 (1968); M. Lefebure, Samuel Taylor Coleridge: A
Bondage of Opium (1974). For one of Coleridge's most remarkable
expressions of despair, see "Dejection: An Ode," in
L. Trilling, The Experience of Literature 1107-10
68. See C. P. Baudelaire, "Les Paradis Artificiels"
(an analysis of the author's drug experience), in The Drug
Experience 1S40 (D. Ebin ed. 1961). For commentary, see generally
A. Hayter, supra note 67, at 151-61. See also L. Grinspoon, Marihuana
Reconsidered 7S95 (1971). Cf. J. Cocteau, Opium: The Diary
of a Cure (1958). (back)
69. See T. DeQuincey, Confessions of an English Opium Eater
(1885). For commentary, see A. Hayter, supra note 67, at 101-31,
70. See C. Terry & M. Pellens, supra note 66, at 468-75. (back)
71. To the extent it was noticed, it was associated with an abuse
of medicinal remedies found in all classes. See Swatos, "Opiate
Addiction in the Late Nineteenth Century: A Study of the Social
Problem, Using Medical Journals of the Period," 7 Int'l
J. Addictions 739 53 (1972). It is unclear whether the administering
of morphine to soldiers during the Civil War was a significant
factor in the increase of addiction in the United States or whether
it simply reinforced patterns already extant. See Quinones, "Drug
Abuse During the Civil War," 10 Int'l J. Addictions 1007-20
72. See. D. Musto, supra note 64, at 25-28. (back)
73. See P. Lowes, The Genesis of International Narcotics Control,
102-07 (1966). (back)
74. A. Zabriskie, Bishop Brent: Crusader for Christian Unity
98 (1948). (back)
75. On the connections between prohibitionist attitudes toward
liquor and toward opium, see A. Lindesmith, The Addict and
the Law 140 41 (1965); P. Lowes, supra note 73, at 13-14,
99-100; D. Musto, supra note 64, at 6, 65-68, 128-34, 156 57,
76. On the contrasting British and American approaches, see l~.
Lowes, supra note 73, at 104, 142-43; A. Taylor, American Diplomacy
and the Narcotics Traffic, 190S1939, at 45, 68, 73, 191, 204
05, 217 (1969). Under international pressure from the United States
and domestic pressure from its own temperance groups, Britain
eventually acquiesced in the American prohibitionist approach,
ending, for example, the export of opium from India to China.
For a description of Britain's recalcitrant acquiescence, see
P. Lowes, supra note 73, at 58-84, 102-89; A. Taylor, supra, at
77. S. Doc. No. 265, 59th Cong., 1st Sess. (1906) (report of Committee
appointed by the Philippine Commission). (back)
78. See A. Taylor, supra note 76, at 11, 19, 21-22, 25-26, 29-30,
79. Until 1858, the trade in British opium, imported to China
from India, was illegal in China. In 1727, the Chinese Edict of
Yung Cheng proscribed the importation and sale of opium for smoking.
See D. Owen, British Opium Policy in China and India
51 (1934). Similar edicts followed, but all were unsuccessful.
The Chinese government's serious attempt to bring the opium trade
to a halt in 1839 led to the Opium War between China and Britain.
China's defeat opened the nation to the opium trade. See P. Fay,
The Opium War 1840 1842 (1975). (back)
80. One such report stated that,
the effect of the drug on the
individual is to ruin him morally, mentally, physically, and financially.
It first incapacitates him for business, then begins to eat up
his capital, and does not halt until it robs him of all his property.
He sells his house piece by piece, until only enough is left to
shelter his family. Then the daughters are sold, next the sons,
and last of all the wife, and then the man himself goes into the
coffin.... When the habit is once fixed nothing but superhuman
power can dislodge it.
S. Doc. No. 135, 58th Cong., 3d Sess. 14
(1905) (remarks by Rev. W. L. Beard). (back)
81. Medical missionaries, attested "that the continual use
of opium resulted in the loss of muscular power, bowel troubles,
asthma, impotence and a total collapse of moral values."
P. Barr, To China with Love 88 (1972). (back)
82. See generally P. Lowes, supra note 73, at 3S57; A Taylor,
supra note 76, at 3-19. (back)
83. One commentator reported of the missionaries: "[T]hey
thought that at last their prayers were to be answered and they
received the news of the burning of the Summer Palace with the
cry 'God has opened China to Christianity.'" Chao-Kwang Wu,
The International Aspect of the Missionary Movement in China
231 (1960). (back)
84. The missionaries were repeatedly asked, "If yours is
a Christian people, why have they forced opium on us?" Merwin,
"Drugging a Nation: The Story of China and the Opium Curse,"
Success Magazine, Dec. 1907, at 852. (back)
85. One bitter Chinese observer reported: "It is repeatedly
asserted---especially by Christian missionaries---that the evil
features of Chinese political and social life are the result of
our false religious and heathen ethics, and can be cured only
by Christianity. . . . I have heard a missionary assert with dogmatic
emphasis that the anti-opium campaign is foredoomed to failure
unless China becomes Christian." Lin Shao-Yang, A Chinese
Appeal to Christendom, Concerning Christian Missions (1911). (back)
86. See J. Timberlake, Prohibition and the Progressive
Movement 1900-1920, at 4 (1963). (back)
87. Id. (back)
88. Cooper, "Deliverance from the Opium Habit," in Missionary
Review of the World, Dec. 1908, at 922. Missionaries opposed
the English opium trade in China. Chao Kwang Wu, supra note 83,
at 231. (back)
89. Missionaries carried on an extensive correspondence with church
groups and parishioners, traveled and made speeches, had direct
contact with government officials, and provided information to
foreign correspondents. See Masland, "Missionary influence
upon Far Eastern Policy," 5 Pac. Hist. Rev. 279-96
90. See "Patriotic Studies," International Reform Federation,
Inc.; "Report of Hearing at State Department on Petitions
to the President to Use His Good Offices for the Release of China
from Treaty Compulsion to Tolerate the Opium Traffic, with additional
Papers," S. Doc. No. 135, 58th Cong., 3d Sess. 232-56
91. P. Lowes, supra note 73, at 107-11. (back)
92. Id. at 102 89. See also A. Taylor, supra note 76, at 47 81. (back)
93. See P. Lowes, supra note 73, at 89 97, 122; A. Taylor, supra
note 76, at 57-59. Results of studies of the period vary dramatically
as to the extent of addiction; few of them are reliable. See,
e.g., C. Terry & M. Pellens, supra note 66, at 1-52. Estimates
of the number of addicts ranged from several thousand to several
million. Id. at 1. One of the better studies estimated a reduction
in addicts from 215,000 to 110,000 during the period 1915 1922.
Id. at 42-43. It is estimated that, as of 1972, there were 250,000
to 315,000 heroin addicts. See E. Brecher, supra note 1, at 92. (back)
94. In addition to the ideological input of the missionaries,
the antiopium stance was supported by several aims of the United
States: the reduction of Chinese resistance to American financial
investments, the placating of Chinese resentment over the United
States's law prohibiting the immigration of Chinese laborers to
this country, and the satisfaction of domestic resentment against
the Chinese immigrants here whose life style was associated with
opium. See D. Musto, supra note 64, at 3-4. (back)
95. The gap in American law was pointedly raised by the German
delegates at the Hague opium conference in 1912. See A. Taylor,
supra note 76, at 106-07. (back)
96. Thus the United States at the 1912 Hague Convention urged
other countries to establish internal control of narcotic drugs.
See A. Lindesmith, supra note 75, at 4. The American prohibitionist
stance on drugs appears to have had dramatic effect on the development
of international conventions in this area. See generally P. Lowes,
supra note 73; A. Taylor, supra note 76; see also }. Platt &
C. Labate, Heroin Addiction: Theory, Research, S Treatment
3-13 (1976). Specifically it appears to have shaped the direction
of drug policy in countries subject to American influence in the
Far East. See A. Lindesmith, supra note 75, at 189-221. Nonetheless,
many question the degree to which other nations or the international
community generally share the American prohibitionist orientation.
See e.g., Simmons & Gold, "The Myth of International
Control: American Foreign Policy and the Heroin Traffic,"
8 Int'l J. Addictions 779 (1973). (back)
97. Pub. L. No. 63-223, 38 Stat. 785 (1914); see D. Musto, supra
note 64, at 54 68. (back)
98. See A. Lindesmith, supra note 75 at 3 5. (back)
99. See id. at 140 41; D. Musto, supra note 64, at 183-89. (back)
100. D. Musto, supra note 64, at 121-50. (back)
101. United States v. Doremus, 249 U. S. 86, 90 (1919). (back)
102. Webb v. United States, 249 U. S. 96, 99100 (1918). (back)
103. United States v. Behrman, 258 U. S. 280, 289 (1921). (back)
104. See Linder v. United States, 268 U. S. 5 (1924). (back)
105. See A. Lindesmith, supra note 75, at 140 41; D. Musto, supra
note 64, at 183-89. (back)
106. See D. Musto, supra note 64, at 91-209; A. Lindesmith, supra
note 75, at 135-61. (back)
107. H. Judson, Heroin Addiction in Britain, ;3-23 (1974).
Indeed, in Britain, the evils of the American treatment of heroin
are expressly kept in mind, to be consciously avoided. See P.
Bean, The Social Control of Drugs 69, 171 (1974). (back)
108. See D. Musto, supra note 64, at 56-58. (back)
109. See C. Terry & M. Pellens, supra note 66, at 2. (back)
110. See generally id. (back)
111. For useful analyses of the British maintenance system, which
is now carried out by clinics rather than individual doctors,
see H. Judson, supra note 107; P. Bean, supra note 107. See also
E. Schur, Narcotic Addiction in Britain and America (1962).
For a discussion of the British and Western European system, see
A. Lindesmith, supra note 75, at 162-88. (back)
112. See A. Lindesmith, supra note 75, at 25-34, 222-42; D. Musto,
supra note 64, at 210-29. (back)
113. Pub. L. No. 75-238, 50 Stat. 551 (1937) (superseded 1939). (back)
114. For an excellent analysis of some of these distortions, see
J. Kaplan, supra note 1, 88-136. (back)
115. See A. Lindesmith, supra note 75, at 25-34; }. Platt &
C. Labate, supra note 96, at 24-43. For an example of a responsible
study of marijuana available in the 1930s, see Indian Hemp Drugs
Commission of 1893-94; for commentary thereon, see J. Kaplan,
supra note 1, at 115-21. See also Siler et al., "Marijuana
Smoking in Panama," 73 Milit. Surg. 269 80 (1933);
"The Marijuana Problem in the City of New York: Mayor LaGuardia's
Committee on Marijuana," in The Marijuana Papers 277
410 (D. Solomon ed. 1966). (back)
116. See generally Quinn & McLaughlin, "The Evolution
and Present Status of New York Drug Control Legislation,"
22 Buffalo L. Rev. 705 (1972-73). (back)
117. See N. Kittrie, The Right to be Different 21040 (1971). (back)
118. See id. (back)
119. See N. Y. Penal Law § § 220.00-220.60 (McKinney
1980). See, for an overview, The Nation's Toughest Drug Law:
Evaluating the New York Experience (1978); Staff Working
Papers of the Drug Law Evaluation project (1978). (back)
120. On the self-regulating features of natural drugs, see A.
Weil, The Natural Mind 98-115 (1972). (back)
121. For a discussion of mescaline, see L. Goodman & A. Gilman,
supra note 4, at 195. Mescaline was isolated in 1896 and is the
active principle of peyote. Id. The classic description of its
unusual psychic and hallucinatory effects is contained in A. Huxley,
The Doors of Perception (1954). (back)
122. For a discussion of LSD, see L. Goodman & A. Gilman,
supra note 4, at 195 97. The unusual psychological effects of
LSD were discovered in 1943 by Albert Hofmann. See A. Hofmann,
LSD: My Problem Child a Ott trans. 1980). The shattering
effects of LSD and other psychedelic drugs are described in L.
Grinspoon & J. Bakalar, supra note 10, at 89-156. (back)
123. See A. Weil, supra note 120. Also see works cited at note
14, supra. (back)
124. For a discussion of morphine, see L. Goodman & A. Gilman,
supra note 4, at 237-55. Morphine, the alkaloid that gives opium
its analgesic action, was isolated in 1803. By the middle of the
nineteenth century the use of pure alkaloids replaced crude opium
preparations throughout the medical world. Id. 237. (back)
125. "Heroin does not occur naturally but is a semisynthetic
derivative produced by a chemical modification of morphine that
increases the potency. It takes only 3 mg of heroin to produce
the same analgesic effect as 10 mg of morphine (heroin being three
times as potent as morphine)." R. Julien, A Primer of
Drug Action 108 (1975) (emphasis deleted). (back)
126. See L. Goodman & A. Gilman, supra note 4, at 237. (back)
127. For a discussion of narcotics, see id. at 237-313. Narcotic
analgesics include any natural or synthetic drug that has morphine-like
pharmacological actions, exerting effects on, inter alia, the
central nervous system, including analgesia, drowsiness, changes
in mood, and mental clouding. (back)
128. For a discussion of caffeine, see O. Ray, supra note 2, at
86-99. Caffeine is one of the xanthines, the oldest stimulants
known to man. For its effects, see id. at 95-98. (back)
129. See O. Ray, supra note 2, at 162-85. (back)
130. See id. at 124 61, 244-69, 290 94. (back)
131. See id. at 270-88. Cocaine, the active ingredient in coca
leaves, was isolated before 1860. Id. at 272. For a general discussion
of the drug, see L. Grinspoon & J. Bakalar, Cocaine: A
Drug and Its Social Evolution (1976) [hereinafter cited as
L. Grinspoon & J. Bakalar, Cocaine]. Amphetamine,
synthesized in 1932, is one of the most powerful drugs in stimulating
the central nervous system. Methamphetamine is closely related
to amphetamine chemically, but has somewhat different effects.
See L. Goodman & A. Gilman, supra note 4, at 507-07. "Speed"
is methamphetamine liquefied for injection and used intravenously.
It induces a state described as euphoric and orgasmic, but it
frequently results in the development of paranoid psychosis and
paranoia, accompanied characteristically by crawling sensations
and repetitive and compulsive behavior. See O. Ray, supra note
2, at 285-88. (back)
132. For a discussion of mescaline, see works cited at note 121,
supra; on LSD, see note 122 supra. For a general discussion of
the hallucinogens, see O. Ray, supra note 2, at 344-89. Marijuana
and hashish are derivatives of the species Cannabis sativa.
The psychoactive agent is concentrated in the resin of the
plant, the concentration being greatest in the flowering tops
and decreasing in the lower, more fibrous parts. Hashish, or "hash,"
consists of the flowering tops and is highly potent. Marijuana
consists chiefly of leafy material and fine stems and is much
less potent. See id. at 391-92. For a general discussion of marijuana
and hashish, see L. Grinspoon, Marihuana Reconsidered (1971);
O. Ray, supra note 2, at 250-268. (back)
133. See O. Ray, supra note 2, at 39-43. (back)
134. Legally available drugs can be divided into two categories:
prescription drugs, which may be purchased only with a physician's
prescription, and over-the-counter drugs, which may be purchased
at will. See O. Ray, supra note 2, at 48-54. (back)
135. See, e.g., Carmona v. Ward, 576 F. 2d 405, 410-12 (2d dr.
1978), cert. denied, 439 U. S. 1091 (1979); People v. Broadie,
37 N. Y. 2d 100, 112-13, 332 N. E. 2d 338, 342-42, 371 N.
Y. S. 2d 471, 476 77, cert. denied, 423 U. S. 950 (1975). (back)
136. It is estimated that organized crime takes in about $2.2
billion a year from the illegal narcotics trade. Dilution of the
drug is so great that a kilogram of heroin may sell on the streets
for a quarter of a million dollars, some $300 of which may have
been received by the farmer abroad (usually in Turkey) who originally
sold the drug. See E. Brecher, supra note 1, at 99-100; O. Ray,
supra note 2, at 327. (back)
137. Official drug use statistics that are used to bolster the
case for criminalization are often themselves distorted by the
illegality of drugs. See Mandel, "Problems with Official
Drug Statistics," 21 Stan. L. Rev. 991 (1969). The
uncritical acceptance of this circularity is typical of the state
of American understanding of drug use. (back)
138. One of the better empirical studies of heroin addiction and
crime among the young indicates that the cumulative amount of
delinquent behavior is not a function of addiction, but rather
that the kinds of delinquency change to reflect the special requirements
of the addict---for example, changing to forms of criminal conduct
that yield a profit, like robbery or burglary. See I. Chein, D.
Gerard, R. Lee, & E. Rosenfield, The Road to H 57-65,
166-68 (1964) [hereinafter cited as 1. Chein]. (back)
139. Perceptive commentators have long observed that the very
publicity and notoriety associated with prohibitory drug laws
may encourage persons with little else to undertake a life of
drug use. Some analysts see the criminal prohibition of drugs
as inciting "glamorous" risk taking, especially among
the poor and disadvantaged. See 1. Chein, supra note 138, at 6-7.
See generally C. Terry & M. Pellens, supra note 66, at 134-36.
Another commentator has hypothesized that the very scarcity of
the drugs, which criminalization leads to, reinforces the obsession
with addictive drugs. See A. Lindesmith, Addiction and Opiates
67 (2d ed. 1968). Criminalization may encourage the drug user
to conceive of himself solely as an addict. See H. Becker, Outsiders:
Studies in the Sociology of Deviance (1963); T. Duster, The
Legislation of Morality: Law, Drugs, and Moral Judgment 88-96
140. See note 111, supra. (back)
141. See H. Judson, supra note 107, at 48 49. (back)
142. See, e. g., A. Lindesmith, supra note 75, at 179-80. The
contrast between the numbers of addicts in Britain and in the
United States is striking. The United States had approximately
200,000 addicts in 1965, while Britain with one-third of the population
had 1,000. See id. at 124-25. When a country like Britain speaks
of an heroin epidemic, it has in mind an increase from 470 known
addicts in 1961 to 753 in 1964. See P. Bean, supra note 107, at
78. The desire to bring this rise under control led Britain to
change from its system of medical prescription of heroin maintenance
(which evidently had been abused by a few physicians, leading
to a rise in the number of addicts) to heroin maintenance through
regulated clinics. See id. at 74-91; H. Judson, supra note 109,
at 35-62. The reform appears to have stabilized the number of
addicts in Britain. See id. at 127. On the varying practices of
the British clinics, see id. at 63-122. (back)
143. See text accompanying notes 70-71 supra. (back)
144. See 1. Chein, supra note 138, at 37-40, 55-56, 65-74; A.
Lindesmith, supra note 75, at 132. In Britain, by contrast, there
is no comparable pattern. See H. Judson, supra note 107, at 47-48. (back)
145. See generally A. Lindesmith, supra note 75, at 131-34. See
also sources cited at note 139 supra. (back)
146. See L. Grinspoon, Marihuana Reconsidered 324-48 (1971);
J. Kaplan, supra note 1, at 122-34 (1970). On the effects of opiates,
see A. Lindesmith, Addiction and Opiates 23-45 (2d ed.
147. See J. Kaplan, supra note 1, at 94-98. (back)
148. See id. at 90-94. (back)
149. See id. at 94. (back)
150. See id. at 106-12. Even then, empirical studies showed there
was no support for this argument. See note 115 and accompanying
text supra. Characteristically, such reports were not carefully
analyzed but violently attacked, often by enforcement officials
committed to the contrary position. See L. Grinspoon, Marihuana
Reconsidered 27-29 (1971). Or when contrary evidence was acknowledged,
it was interpreted in ways that showed no careful reading either
of the methodology of the study or its conclusions. See the discussion
of the campaign by Commissioner H. T. Anslinger of the Federal
Bureau of Narcotics which led to the Marihuana Tax Act of 1937.
Id. at 2526. One critic offering such evidence was simply dismissed
as "not cooperative." Id. at 26. (back)
151. See J. Kaplan, supra note 1, 265-69. (back)
152. This criticism has been extensively made by E. Brecher. See
E. Brecher, supra note 1, at 185, 291-93, 331-32, 497-98. (back)
153. See O. Ray, supra note 2, at 330-31. (back)
154. Aspirin is an example. See id. at 211-12. (back)
155. See generally E. Brecher, supra note 1, at 101-14. (back)
156. See O. Ray, supra note 2, at 331. (back)
157. Id. at 195-96. (back)
158. See note 111 supra. (back)
159. For a defense of this concept of shame, see D. Richards,
A Theory of Reasons for Action 250-67 (1971). (back)
160. See discussion at notes 59-71 and text accompanying, Chapter
2, supra. (back)
161. See notes 22-27 and accompanying text supra. For a useful
introduction to the Gnostic ideas against which Augustine (as
a former Gnostic) was reacting, see H. Jonas, The Gnostic Religion
(2d ed. 1963). For some later development, see N. Cohn, The
Pursuit of the Millennium (2d ed. 1961); S. Runciman, The
Medieval Manichee (1947). (back)
162. Cf. O. Ray, supra note 2, at 16-17. (back)
163. For an expanded explication of Augustine's view of sexuality,
see discussion at notes 59-71 and text accompanying, Chapter 2,
164. See notes 7-12 and accompanying text supra. (back)
165. With respect to the phenothiazines, these properties have
enabled many of the mentally ill to regain control of their mental
lives in a way that would not otherwise be possible. See O. Ray,
supra note 2, at 136-55. (back)
166. In this connection, it is important to distinguish the effects
of the following different drugs: (1) narcotic analgesics, (2)
marijuana, (3) mescaline, and (4) LSD.
Writers who have taken
opium have both praised its virtues in stimulating preexisting
imaginative powers (dream imagery, for example), and criticized
its perceived debilitating effects. See generally A. Hayter, supra
note 67. For praise, see. C. P. Baudelaire, supra note 68, at
19-28 (although Baudelaire expressly wrote of hashish, he probably
had more experience with opium; see L. Grinspoon, Marijuana
Reconsidered 91-94; A. Hayter, supra, at 151-152); T. DeQuincey,
supra note 69, at 15-18. See also J. Cocteau, Opium: The Diary
of a Cure 70-71 (M. Crosland & S. Road trans. 1958) ("To
say of an addict who is in a continual state of euphoria that
he is degrading himself is like saying of marble that it is spoilt
by Michaelangelo, of canvas that it is stained by Raphael, of
paper that it is soiled by Shakespeare, of silence that it is
broken by Bach.") One of Coleridge's more remarkable poems,
"Kubla Khan," may have been inspired by one of his opium
reveries. See A. Hayter, supra at 214-25. For the poem, see L.
Trilling, The Experience of Literature 870 71 (1967). For
criticism of opiates, see C. P. Baudelaire, supra, at 28-40; T.
DeQuincey, supra at 83-127. For reference to Coleridge's poem
of despair, see "Dejection: An Ode," supra note 67.
For the uses of marijuana as an imaginative stimulant, see A.
Ginsberg, "First Manifesto to End the Bringdown," in
The Marihuana Papers 230-48 (D. Solomon ed. 1966). See
generally L. Grinspoon, Marihuana Reconsidered 123-30,
150-55 (1971); C. Winick, "The Use of Drugs by Jazz Musicians,"
7 Soc. Prob. 140 53 (1960).
For a remarkable statement
of the imaginative uses of mescaline, see A. Huxley, The Doors
of Perception (1954).
For the imaginative uses of LSD, see
L. Grinspoon & J. Bakalar, supra note 10, at 26173; B. Wells,
Psychedelic Drugs 170-212 (1973). See generally R. Masters
& J. Houston, The Varieties of Psychedelic Experience (1966). (back)
167. DeQuincey observed: "If a man 'whose talk is of oxen'
should become an opium-eater, the probability is, that (if he
is not too dull to dream at all) he will dream about oxen: whereas,
in the case before him, the reader will find that the opium-eater
boasteth himself to be a philosopher." T. DeQuincey, supra
note 69, at 16. And Baudelaire observed of the intoxicated person:
"He remains, despite the adventitious force of his sensations,
merely the same man increased, the same number raised to a very
high power." C. P. Baudelaire, supra note 68, at 20. On the
importance of atmosphere to the drug experience, see H. Becker,
Outsiders: Studies in the Sociology of Deviance 41-58 (1963);
L. Grinspoon, Marihuana Reconsidered 6, 136, 137, 181,
185, 206-07 (1971); L. Grinspoon & J. Bakalar, supra note
10 at 14, 89-90, 105-06, 125 ff; A. Weil, The Natural Mind
29 (1972); N. Zinberg & J. Robertson, Drugs and the
Public 78-86 (1972). (back)
168. Using Lawrence Kohlberg's theory of moral development, one
may argue that the students who protested at Berkeley in the name
of free speech were on a high stage of moral development. They
appealed to principles of independent conscience and sought to
vindicate them against an unjust society. See L. Kohlberg, "Education
for Justice: A Modern Statement of the Platonic View," in
Moral Education 78-79 (T. Sizer ed. 1970). If certain forms
of drug use support such a critical moral culture, such use may
also reflect similar moral independence. (back)
169. For a history of American attitudes toward drug use, see
text accompanying notes 30-119 supra. (back)
170. See text accompanying notes 28-36 supra. (back)
171. See notes 30-31 and accompanying text supra. (back)
172. On the contrast between the Magisterial Reformation of Luther
and Calvin and the Radical Reformation, see G. Williams, The
Radical Reformation xxiu-xxxi (1962). (back)
173. See text accompanying notes 37-40 supra. (back)
174. See text accompanying notes 40-57 supra. (back)
175. See B. Rush supra note 40. (back)
176. See id. at 190-91. (back)
177. See id. at 197. (back)
178. See text accompanying notes 21-22 supra. (back)
179. See text accompanying notes 50-57 supra. (back)
180. See text accompanying notes 58-119 supra. (back)
181. On the legal status of psychedelic drugs, see L. Grinspoon
& J. Bakalar, supra note 10, at 309-12. (back)
182. See Chapter 1, supra. (back)
183. See Urmson, "Saints and Heroes," in Essays in
Moral Philosophy 198-216 (A. Melden ed. 1958). (back)
184. See D. Richards, Reasons for Action supra note 159,
at 205-8. (back)
185. 1. Kant, The Metaphysical Principles of Virtue 88
a Ellington trans. 1964). (back)
186. Id. (back)
187. B. Rush, supra note 40, at 208-9. (back)
188. I. Kant, supra note 185, at 89. (back)
189. Id. (back)
190. W. Shakespeare, Twelfth Night, Act II, Scene V, The
Oxford Shakespeare 310 (W. J. Craig ed. 1966); cf. W. Shakespeare,
Othello, Act II, Scene 11, id. at 953, where a herald announces
to a crowd that "each man to what sport and revels his addiction
leads him." (back)
191. Strikingly, DeQuincey invoked religious metaphors in characterizing
his addiction to opium:
[T]he opium-eater . . . feels that the
diviner part of his nature is paramount; that is, the moral affections
are in a state of cloudless serenity; and over all is the great
light of the majestic intellect.T. DeQuincey,
supra note 69, at 71.
This is the doctrine of the true
church on the subject of opium: of which church I acknowledge
myself to be the only member,---the alpha and omega....
Using similar vocabulary but to different
effect, Baudelaire spoke of the power of the drug as that of the
"Prince of Darkness." C. P. Baudelaire, supra note 68.
See also id. at 35, 38. Similarly, the drug user is his own "godhead."
Id. at 31. In consequence, drug taking is "obscene heresy."
Id. at 34. (back)
192. See L. Goodman & A. Gilman, supra note 4, at 537-38. (back)
193. See id. (back)
194. See id. at 535. (back)
195. Some such drugs are anticholingergics, chlorpromazine, imipramine,
and cyclazodene. See id. at 537. (back)
196. See L. Goodman & A. Gilman, supra note 4, at 309; A.
Lindesmith, Addiction and Opiates 69-127 (1968). (back)
197. See, e.g., B. Johnson, "Once an Addict, Seldom an Addict,"
1978 Contemp. Drug Prob. 35-53, Robins, Davis, & Goodwin,
"Drug Use by U.S. Army Enlisted Men in Vietnam: A Follow-Up
on their Return Home," 99 Am. J. Epidemiology, 235-49
198. See Fingarette, "Addiction and Criminal Responsibility,"
84 Yale L.l. 413, 431 (1975) (pointing out the low potency
of the heroin available to American addicts). By contrast, the
heroin available to American soldiers in Vietnam was of high potency,
yet they exhibit low continuing commitment to the drug. See works
cited at note 197 supra. The natural inference is that levels
of addiction are not related solely to chemical or physiological
199. See L. Goodman & A. Gilman, supra note 4, at 279-83,
293-98; O. Ray, supra note 2, at 64-65. (back)
200. See C. Winick, "Maturing Out of Narcotic Addiction,"
14 Bull. Narcotics 1-7 (1962). The rate of relapse in programs
of compulsory rehabilitation for addiction appears to be high.
See E. Brecher, supra note 1, at 64-78. Voluntary therapeutic
communities, however, appear to have more success at least where
the patient continues to live in the community. Id. at 78-83.
One perceptive commentator has noted that in view of the dominant
importance of psycho-social factors in explaining psychological
devotion to drugs, "curing a person of addiction might, in
this sense, be compared with curing a person of a college education."
A. Lindesmith, Addiction and Opiates 204 (1968). (back)
201. Correlatively, we should question the popular idea of the
moral degeneracy of the addict. See, for trenchant comments on
the conventional wisdom, C. Terry & M. Pellens, supra note
66, at 513-16. (back)
202. See generally 1. Chein, supra note 138, L. Goodman &
A. Gilman, supra note 4, at 535-37, 542 44; A. Lindesmith, Addiction
and Opiates (1968); J. Platt & C. Labate, supra note 96,
C. Terry & M. Pellens, supra note 66; Salmon & Salmon,
"The Causes of Heroin Addiction---A Review of the Literature"
(pts. 1 & 2), Int'l 1. Addictions 679-96, 937-51 (1977). (back)
203. See generally 1. Chein, supra note 138. (back)
204. Id. at 57-65, 166-68. (back)
205. R.Ashley, Heroin---The Myths and The Facts 73 (1972);
1. Chein, supra note 259; A. Lindesmith, supra note 195, at 131-34;
Preble & Casey, "Taking Care of Business: The Heroin
User's Life in the Street," in It's So Good, Don't Even
Try It Once 116 (D. Smith & G. Gay, eds. 1972). See generally
E. Brecher, supra note 3, at 42-46; Chein, "Psychological
Functions of Drug Use," in Scientific Basis of Drug Dependence
14 15 (H. Steinberg ed. 1969); Vaillant, "The Natural
History of Urban Narcotic Drug Addiction---Some Determinants,"
id. at 351. (back)
206. J. Douglas, Youth in Turmoil 52 (1970); Feldman, "Ideological
Supports to Becoming and Remaining a Heroin Addict," Drug
Dependence, Mar. 1970, at 10. (back)
207. 1. Chein supra note 138, at 248 (withdrawal experiences "become
integrated in their self-images as a valid, interesting, and necessary
aspect of themselves"). (back)
208. For a similar analysis of the abuse of the concept of addiction
and related concepts, see L. Grinspoon & J. Bakalar, Cocaine:
A Drug and Its Social Evolution 177-207 (1976); cf.
T. Szasz, Ceremonial Chemistry 6, 56, 85, 99-101, 16a65
209. S. Peele, Love and Addiction (1975). (back)
210. P. Slater, Wealth Addiction (1980). Large numbers
of Americans describe themselves as "addicts" to some
substance or activity. See N. Y. Times, Jan. 27, 1981,
§ C., at (back)
211. See S. Peele, supra note 209 at 61. (back)
212. P. Slater, supra note 210, at 33-64. (back)
213. See text accompanying notes 146-50, supra. (back)
214. See text accompanying notes 135 45, supra. (back)
215. A. Lindesmith, Addiction and Opiates 49 (1968). (back)
216. See text accompanying notes 205 07, supra. (back)
217. 1. Kant, Foundations of the Metaphysics of Morals 51-52
(L. W. Beck trans. 1959). (back)
218. See Chapter 1, supra. (back)
219. See Richards, "The Individual, the Family, and the Constitution:
A Jurisprudential Perspective," 55 N.Y.U. L. Rev. 1
220. The moral idea here is that, quite apart from background
institutional roles, merely giving birth to a vulnerable child,
other things being equal, gives rise to duties of care and nurturance.
See J. Locke, Second Treatise in Two Treatises of Government
(P. Laslett ed. 1960), §§ 56-58. (back)
221. Among the drugs that may have effects on newborns are the
hypnotics, see R. Julien, supra note 5, at 59; alcohol, see id.
at 62; caffeine, see id. at 93, nicotine via lactation, see id.
at 94; nicotine, on the fetus, see id, at 96-97; heroin, see id.
at 104; and marijuana, see id. at 180. In some cases, the effects
can be avoided by not ingesting the drug during pregnancy. See
id. at 180. Allegations that the use of LSD causes chromosomal
damage are not well supported. See L. Grinspoon & J. Bakalar,
supra note 10, at 188-90; O. Ray, supra note 2, at 247. (back)
222. As long as parents so regulate their drug use as not to violate
their basic moral duties of care and nurture of their children,
there can be no moral objection to it. It appears likely, in this
connection, that forms of regulation of drug use, such as heroin
maintenance, are more likely to render drug use consistent with
parental duties than a prohibitory scheme like that of the United
States. See H. Judson, supra note 107, at 83-84, 88, 120; cf.
L. Goodman & A. Gilman, supra note 4, at 1670. (back)
223. See note 221 supra. (back)
224. For judicial use of this argument, see Soler, "Of Cannabis
and the Courts: A Critical Examination of Constitutional Challenges
to Statutory Marijuana Prohibitions," 6 Conn. L. Rev.
601, 649-55 (1974). Cf. L. Grinspoon, Marihuana Reconsidered
(1971), at 302-3, 307-8 (use of cannabis not per se criminogenic,
but by aggravating psychopathic disorders may lead to increased
criminal activity). (back)
225. For the politically manipulative uses of this kind of argument,
see E. Epstein Agency of Fear: Opiates and Political Power
in America (1977); G. Hamburger, The Peking Bomb (1975). (back)
226. See B. Rush, supra note 40, at 197. (back)
227. See Aristotle, Nicomachean Ethics 1138a4-1138bl4 (M.
Ostwald trans. 1962). (back)
228. Saint Thomas Aquinas, Summa Theologica Part 2-2, Q.
64, Art. 5 (Blackfriars ed. 1975). (back)
229. See 4 W. Blackstone, Commentaries on the Laws of
England 189. (back)
230. Such a person is perhaps not a very socially productive citizen
but can meet minimal obligations of compliance with law, bearing
a fair share of the burdens of social life, taxes, and the like.
See L. Goodman & A. Gilman, supra note 4. (back)
231. See A. Lindesmith, supra note 75, at 130-31; Swatos, supra
note 71. (back)
232. See note 142 supra. (back)
233. See E. Brecher, supra note 1, at 17-20; H. Judson, supra
note 107, at 83-84, 88, 120; Swatos, supra note 71. (back)
234. See text accompanying notes 155-57. (back)
235. See text accompanying notes 135 45. (back)
236. See Gusfield, Symbolic Crusade: Status Politics and the
American Temperance Movement (1963). (back)
237. D. Musto, The American Disease 5-6 (1973). (back)
238. Id. at 219-21. (back)
239. Id. at 7-8. (back)
240. See J. Gusfield, supra note 236; cf. T. Duster, The Legislation
of Morality: Law, Drugs, and Moral Judgment (1970)
(moral stigma of addiction is based upon middle class perspective
and depends upon social obedience of users of the drug---not upon
its physiological effects.) (back)
241. One recent study of the relative hazards of various forms
of drug use concluded that alcohol use is potentially more hazardous
to the individual and society than are cocaine, cannabinoids,
and opiates. See Irwin, "A Rational Approach to Drug Abuse
Prevention," 2 Contemp. Drug. Prob. 3, 15-26
242. See O. Ray, supra note 2, at 273 74; cf. G. Stent, The
Coming of the Golden Age 131-36 (1969) (since this
technological civilization is now at an end, we will turn to drugs
more suited to our increasingly nonproductive orientation). (back)
243. See works cited at note 242 supra. (back)
244. See, generally, J. Rawls, A Theory of Justice (1971). (back)
245. For versions of this argument over the use of coca leaves
in Latin America, see L. Grinspoon & J. Bakalar, Cocaine:
A Drug and Its Social Evolution 218 22 (1976). (back)
246. See Bayer, "Heroin Decriminalization and the Ideology
of Tolerance: A Critical View," 12 Law & Soc'y
Rev. 301, 314 (1978). In the political forum, such arguments
sometimes take the form of assertions that heroin maintenance
would be "genocide" against blacks, sedating ghetto
protest. See H. Judson, supra note 107, at 110. (back)
247. See A. Lindesmith, supra note 75, at 162-221; cf. P. Bean,
supra note 107, at 95-129 (legislative changes in British drug
laws as response to altered composition of addict population).
But cf. H. Judson, supra note 107, at 81-84, 88, 120 (various
patterns of drug use in absence of criminal sanction determined
by sociological factors); E. Schur, supra note 111, at 86-146
(various patterns of drug use in absence of criminal sanction
determined by sociological factors). (back)
248. See E. Brecher, supra note 1, at 17-20; C. Terry & M.
Pellens, supra note 66, at 469-75, Swatos, supra note 71. (back)
249. See E. Brecher, supra note 1, at 18 19; A. Lindesmith, supra
note 75, at 131-34. (back)
250. See notes 138-45, 205-07, and accompanying text supra. (back)
251. For the focal significance, in a theory of justice, of improving
the condition of the most disadvantaged classes, see J. Rawls,
supra note 244. (back)
252. See text accompanying notes 153 58, supra. (back)
253. See J. Rawls, supra note 244. (back)
254. Indeed, the notion of exploitation here is problematic. One
becomes an addict as a result of social processes within one's
peer group, not principally because of the blandishments of the
stereotypical aggressive pusher preying on the young. See 1. Chein,
supra note 138, at 149-53. Criminalization is crucial to the social
and economic context of this natural process of experimentation.
Accordingly, decriminalization would be the proper course to alter
the structure of social incentives in order to make drug use a
less desirable choice for a young person. Indeed, it seems that
the morally sound account of exploitation is that criminalization
itself unjustly exploits the vulnerabilities of the exposed social
and economic position of the poor. This theory of criminalization
bespeaks contempt for the poor, imputing to them a basic lack
of dignity because of the high rate of addiction among them, when
this may reflect a not unreasonable and undignified response to
a social context which criminalization itself created. (back)
255. On the lower rates of addiction in countries which regulate,
but do not prohibit, heroin, see note 142, supra. Attempts to
deny the relevance of the experience of these countries, particularly
Britain, have been characterized as racist. See N. Zinberg &
J. Robertson, Drugs and the Public 161-63 (1972). Certainly,
these attempts have been ill-informed, often guided by American
enforcement officials who refused to recognize the distinctive
features of foreign regulatory treatment of drugs. See A. Lindesmith,
supra note 75, at 183-84, E. Schur, supra note 111, at 173-85.
Sometimes, a rise in British rates of heroin addiction is interpreted
as a general failure of the British approach when, in fact, by
any reasonable measure of comparison with the United States, the
British have the problem well under control. For the British experience,
see note 142, supra. For the American misinterpretation, see H.
Judson, supra not 107, at 12341. (back)
256. For a realistic study of the relative dangers of drugs, which
are monumentally distorted by American drug treatment policy,
see Irwin, supra note 241. See generally E. Brecher, supra note
257. See note 13, Chapter 1, supra. (back)
258. See text accompanying notes 7-12, supra. (back)
259. See V. Rubin & L. Comitas, Ganja in Jamaica: A Medical
Anthropological Study of Chronic Marihuana Use 55-57 (1975).
On the medical uses of illegal drugs, see Korcok, "The Medical
Applications of Marijuana and Heroin: High Time the Laws Were
Changed," 119 Can. Med. Ass'n. 1. 374 (1978). (back)
260. See L. Grinspoon & J. Bakalar, Cocaine, supra
note 245, at 9-16, 87-94, 103, 108, 120-29, 155-56, Berridge,
"Fenland Opium Eating in the Nineteenth Century," 72
Brit. J. Addiction 275-84 (1977); Berridge, "Opium and the
Historical Perspective," The Lancet, July 9, 1977,
at 78-80; Berridge, "Opium Eating and the Working Class in
the Nineteenth Century: The Public and Official Reaction,"
73 Brit. J. Addiction 107-12 (1978); Berridge, "Working-Class
Opium Eating in the Nineteenth Century: Establishing the Facts,"
73 Brit. J. Addiction 363-74 (1978). (back)
261. If this is so, the task of a just drug policy should be to
facilitate a fair cultural setting in which the goods of drug
use may be reasonably pursued, rather than punitively frustrated.
See L. Grinspoon & J. Bakalar, Cocaine, supra note
245, at 238-67; cf. N. Zinberg & J. Robertson, Drugs and
the Public 78-86 (1972) (hostile social attitudes toward drugs
cause personality disorganization). (back)
262. See text accompanying notes 13-21 supra. (back)
263. See note 166 supra. (back)
264. Of opium, De Quincey wrote: "O just, subtle, and mighty
opium! . . . thou hast the keys of Paradise." T. De Quincey,
supra note 69, at 83-84. (back)
265. See generally A. Weil, The Natural Mind (1972). See
also L. Grinspoon & J. Bakalar, supra note 10, 238-308; A.
Hoffman, supra note 122, at 195-209; A. Huxley, The Doors of
Perception 62-79 (1954); T. Leary, The Politics of Ecstasy
(1968); G. Weil, R. Metzner, & T. Leary, The Psychedelic
Reader (1965). (back)
266. See text accompanying notes 205-07, supra. Cf. E. Brecher,
supra note 1, at 3341 (examples of American addicts not from the
267. For a discussion of the concept of addiction, see text accompanying
notes 190216, supra. (back)
268. See J. Platt & C. Labate, supra note 96, at 95-96. (back)
269. See generally id. at 86-96. (back)
270. See L. Goodman & A. Gilman, supra note 4, at 286. (back)
271. See text accompanying notes 190 216, supra. (back)
272. See note 167, supra. (back)
273. One class of drugs that might plausibly be prohibited is
that of methamphetamines or "speed". See note 131 supra.
See also E. Brecher, supra note 1, at 28193. One commentator has
noted that the sometimes violent and uncontrolled hyperactivity
that "speed" causes approximates the stereotype of the
"dope fiend" that is improperly applied to heroin addiction.
L. Goodman & A. Gilman, supra note 4, at 302-05.
It is important
to see that the traditional arguments for the irrationality of
criminalized forms of drug use are typically based on distortions
of the facts. It is as if the extant moralistic condemnation of
drug use inexorably shaped the reading of the facts so as to confirm
that the putatively immoral conduct was personally irrational
as well. Older accounts of drug use in the United States, for
example, claimed such use leads to insanity and much shortened
life spans, to the release of violent aggression, to sexual rapine,
to political irresponsibility and personal decline. Psychiatrists
have commonly supplied a psychiatric makeweight to the moral condemnations
by claiming that the drug users are mentally ill or, at least,
have some form of neurotic personality. Few of these claims are
supported by careful empirical research observing sound scientific
methods. See, e.g., E. Glover, On the Early Development of
the Human Mind 187-215 (1956). Often such studies rest on
a limited sample of people, which the researcher mistakenly believes
to be typical of the research population a large. For example,
a researcher or observer might mistakenly infer from the class
of drug users who come to the attention of the criminal law or
seek therapeutic help that all drug users are intrinsically criminal
or in need of therapeutic help. See C. Terry & M. Pellens,
supra note 66, at 513-14. In addition, as Terry and Pellens perceptively
observed in their pathbreaking study:
In addition to the foregoing
possible misinterpretations on the part of the writers quoted,
is it not possible that where individual writers have accorded
to certain types a tendency to the use of this drug, effect has
been mistaken for cause? Have not these patients, possibly as
a result of the situation in which they find themselves---the
toxic effect of the drug, disturbed metabolism, fear of discovery
and realization that unaided they cannot regain their health---presented
temporarily characteristics that were not constitutional with
them? . . . In other words, the pre-addict has not been studied,
and traits of character, ethical standards, and intellectual capacities
based on post hoc findings may or may not have a propter
hoc significance.Id., 514-15.
Thus it may be argued
that, in the United States, such studies record effects not intrinsic
to taking the drugs, but related to a context of criminalization
and its effects on patterns of drug use. See, e.g., E. Brecher,
supra note 1, at 33-41, E. Schur, supra note 111, at 86-146; which
suggest that quite different forms of personality, some highly
competent and productive, emerge when users have regular access
to drugs they desire. One study suggests that addicts may be more
intelligent and educated than their peers. See J. Platt &
C. Labate, supra note 96, at 175. More recently, arguments have
focused on the "addictive personality," marked by a
certain pattern of family life, for example, a dominant mother
and an absent father in the case of men, resulting in an allegedly
passive and dependent personality. See, e.g., id. at 126-75; Salmon
& Salmon, "The Causes of Heroin Addiction---A Review
of the Literature" (pts. 1 & 2), 12 Int'l Addictions
679-96, 937-51 (1977). The empirical grounds for these studies
have been questioned; J. Platt & C. Labate, supra note 96,
at 146-54, 312. Assuming, arguendo, their validity as a matter
of aetiological explanation, it is irrelevant to public policy
that a certain pattern of behavior has a certain aetiology unless
there are independent normative grounds to question the behavior.
In fact, these studies assume what must be shown, that drug-taking
is itself objectionable. See Fingarette, "Addiction and Criminal
Responsibility," 84 Yale L. J. 413, 439-43 (1975).
See also notes 190216 and accompanying text supra. In fact, the
history of American prohibitory legislation regarding drug use
is a remarkable spectacle marked, among other things, by its dependence
either on the moralistic perceptions by persons such as Christian
missionaries in China, ill-suited to assess empirical questions
regarding drug use in the United States, or on quite distorted
factual interpretations made available by enforcement officials---in
blatant disregard of the accumulating empirical literature of
dispassionate and scientific merit which reveals the emptiness
of the factual assumptions on which the prohibitions rested. See
generally text accompanying notes 58-119 supra. For a useful analysis
of the social irrationality surrounding anti marijuana laws, in
particular, see R. Bonnie & C. Whitebread, "The Forbidden
Fruit and the Tree of Knowledge: An Inquiry into the Legal History
of American Marijuana Prohibition," 56 Va. L. Rev. 971
274. For some sense of the cultural experiment which drug use
introduced into patterns of American culture, see T. Wolfe, The
Electric Kool-Aid Acid Test (1968). On new forms of music,
see id. at 212-13, 230-52; on life styles, see id. at 354 55;
on religious feelings, see id. at 125-49, 182-85, 192. (back)
275. See Chapter 1, supra. (back)
276. See notes 26-31, and note 38, Chapter 1, supra. (back)
277. See note 32, Chapter 1, supra. (back)
278. 537 P. 2d 494 (Alaska 1975). (back)
279. In explanation, the court observed that "[f]ew would
believe they have been deprived of something of critical importance
if deprived of marijuana." Id. at 502. But cf. Justice Levinson's
dissent in State v. Kantner, 53 Hawaii 327, 339, 493 P.
2d 306, 313 (1972). Courts have, however, invoked privacy arguments
in support of mental patients' right to refuse drugs. See e.g.,
Rennie v. Klein, 462 F. Supp. 1131 (1978); Rogers v.
Okin, 478 F. Supp. 1342 (1979); In re K. K. B., 609
P. 2d 747 (1980). These cases, in their vindication of the right
to control one's mental state, suggest a larger privacy right
relevant to drug use. (back)
280. See generally L. Tribe, American Constitutional Law 812-990
281. See text accompanying notes 169-84 supra. (back)
282. See notes 160-68 and accompanying text supra. (back)
283. For further discussion, see Richards, "Free Speech and
Obscenity Law: Toward a Moral Theory of the First Amendment,"
123 U. Pa. L. Rev. 45, 59-83 (1974). (back)
284. In American constitutional theory, this claim is made in
the form of a denial that forms of drug use are entitled to protection
under the free exercise of religion clause of the first amendment.
See Giannella, "Religious Liberty, Nonestablishment, and
Doctrinal Development: Part 1, The Religious Liberty Guarantee,"
80 Harv. L. Rev. 1381, 1426-31 (1967). Giannella has made
this claim on two grounds: first, that prohibition of drug use
poses no threat of "alienation from one's Maker, frustration
of one's ultimate mission in life, and violation of the religious
person's integrity," id. at 1427; and second, that certain
forms of drug use are "as subversive of the existing secular
order as conduct made criminal because it is offensive to public
morality." id. Neither claim can withstand scrutiny under
the analysis offered in this chapter. The first argument begs
the point at issue, adopting a conception of religious experience
that assumes the technology of religious self-mastery that is
in dispute. The second assumes precisely the conception of public
morality that this chapter has shown to be inconsistent with the
deepest foundations of constitutional conceptions of human rights. (back)
285. It may be that there should be an appropriate division of
labor in this area between courts and legislatures. Courts might
move more aggressively in cases like marijuana use, where the
case for decriminalization seems very clear and the case for extensive
regulatory schemes (for example, licensing) is weak, while legislatures
might have more proper competence where, in addition to decriminalization,
extensive regulation will clearly be required (for example, in
heroin maintenance). On the concept of judicially underenforced
constitutional norms, see Sager, "Fair Measure: The Legal
Status of Underenforced Constitutional Norms," 91 Harv.
L. Rev. 1212 (1978). (back)
286. See L. Grinspoon, Marihuana Reconsidered 331-34 (1971);
K. Singer, "The Choice of Intoxicants Among the Chinese,"
69 Brit. J. Addiction 257-68 (1974). For the contrasting
cultural interpretations of heroin in India and China, see R.
Blum, supra note 14, at 48-51. (back)
287. See note 242, supra. (back)
288. See note 273, supra. (back)
289. See the more extensive discussion of these distinctions at
notes 302-07 and accompanying text, Chapter 3, supra. (back)
290. See generally Richards, "Human Rights and Moral Ideals:
An Essay on the Moral Theory of Liberalism," 5 Soc. Theory
S Prac. 461 (1980). (back)
291. See note 2 supra. (back)
292. See J. Kaplan, supra note 1, at 315-21. (back)
293. Id. at 322-23. (back)
294. See e.g., J. Kaplan, supra note 1, at 332-47; N. Zinberg
& J. Robertson, Drugs and the Public 259-63 (1972). (back)
295. See H. Hart & A. Sacks, The Legal Process: Basic Problems
in the Making and Application of Law 873-76 (tentative draft
296. See generally O. Ray, supra note 2, at 2-34. (back)
297. Id. at 12-13. (back)
298. See works cited at note 111, supra. (back)
299. See notes 153-58 and accompany text supra. (back)
300. For a useful study of Britain's use of a clinic system and
its advantages, see H. Judson, supra note 107. (back)
301. There are, for example, certain advantages in substituting
a methadone addiction for a heroin addiction: methadone may be
taken by mouth (avoiding infections from injection needles); it
is longer acting that heroin, which requires several shots a day
and produces mood bounces between each; it does not produce a
tendency toward increases in dosage that some heroin addicts experience;
and it staves off heroin withdrawal symptoms. See E. Brecher,
supra note 1, at 161-62. While heroin maintenance is impermissible
in the United States, methadone maintenance is not, and there
have been notable experiments with it. See id. at 135-82. For
criticisms of methadone maintenance see Bayer, "Methadone
Under Attack: An Analysis of Popular Literature," Contemp.
Drug. Prob. 367-400, Fall 1978. For a recent defense, see
Dole, "Addictive Behavior," Sci. Am., Dec. 1980,
at 138-54. If a heroin addict wishes to substitute another form
of addiction, that is, of course, his or her right; perhaps clinics
should even encourage heroin addicts to do so, pointing out the
advantages. On the other hand, if a heroin addict wishes, on reflection,
to continue the addiction, that is also his or her right. Heroin
maintenance as an available option is, therefore, the just course.
Indeed, as one group of perceptive analysts observed, it follows
from the basic moral postulate of human rights that persons "are
morally entitled to the best help that can be offered." See
I. Chein, supra note 138, at 380. The addict, it is argued, should
not be limited to a minimal maintenance dose:
especially if giving
him his "high" would keep him off the illegal market
and provide the "high" under conditions of maximum safety
to him and others. In fact, we see nothing wrong, under the conditions
stated, with having the physician help such an addict plan his
drug-taking strategy---switching drugs from time to time, helping
him with planned and optimally spaced withdrawals, mixing drugs,
or whatever it takes.Id. at 378.
For the forms of social service
that this model may involve, see H. Judson, supra note 107, at
63 122. In addition, such licensing---consistent with appropriate
guarantees of privacy and confidentiality---would assure something
irrationally lacking in America and strikingly present in Britain,
namely, good and reliable records of persons who take heroin.
For the vagaries of American drug statistics, see note 137; for
the British system, see H. Judson, supra note 107, at 23-27. (back)
302. Cf. L. Grinspoon & J. Bakalar, supra note 10, at 291-308
(suggesting psychedelic drugs should be neither condemned nor
303. See generally id at 89-156, 192-290; see generally R. Masters
& J. Houston, supra note 10, B. Wells, supra note 11, at 57-82,
112-49, 170 213. (back)
304. See generally L. Grinspoon & J. Bakalar, supra note 10,
at 157-91. (back)
305. See N. Zinberg & J. Robertson, supra note 1, at 242-63. (back)
306. See e. g., Irwin, supra note 241, at 15 26. In Irwin's careful
comparison of drug hazards, distilled alcohol received the highest
hazard rating (81 /79), cigarettes an intermediate hazard rating
(37/0), and marijuana a lower rating (25/29). (back)
307. See generally, L. Grinspoon, Marihuana Reconsidered (1971);
J. Kaplan, supra note 1, at 141-98. In contrast, the greater dangers
from alcohol or nicotine might justify some form of licensing. (back)
308. See, e.g., Brody, "The Evidence Builds Against Marijuana,"
N. Y. Times, May 21, 1980, at C1, Col. 1. The argument
is made that one drug should be forbidden, not because of its
intrinsic dangers, but because it may lead to the use of other,
more harmful drugs. The argument is a familiar move in American
prohibitionist literature, having been used to defend the absolute
prohibition of liquor. See text accompanying notes 51 and 52,
supra. In fact, there is little empirical support for such casual
theses. See generally L. Grinspoon, Marihuana Reconsidered
231-52 (1971); J. Kaplan, supra note 1, at 199-262. To the
contrary, the best way to prevent such steps from one drug to
another is to permit one and forbid the other, rather than hypocritically
confusing all drugs in one global and undiscriminating way. On
the evils of such confusions, see E. Brecher, supra note 1, at
291-93, 331-32, 497-98. Brecher argues that once drug users perceive
one drug is not harmful at all, they conclude that all illegal
drugs are harmless, losing faith in the rationality of the law-making
309. See generally Irwin, supra note 241. See also E. Brecher,
supra note 1. (back)
310. See text accompanying note 326, Chapter 3, supra. (back)
311. See text accompanying note 327, Chapter 3, supra. (back)
312. It is assumed that such regulation could satisfy constitutional
constraints. See Bigelow v. Virgina, 421 U. S. 809, 825
n. 10 (1975); Banzhaf v. FCC, 405 F. 2d 1082, 10991103
(D. C. Cir. 1968), cert. denied sub nom. Tobacco Inst., Inc.
v. FCC, 396 U. S. 842 (1969). (back)
313. See E. Brecher, supra note 1, at 229 44; O. Ray, supra note
2, at 75-78. (back)
314. See generally Irwin, supra note 241. Cf. J. Kaplan, supra
note 1, at 263-310. (back)
315. See generally T. Szasz, supra note 1. (back)
316. See generally N. Kittrie, supra note 117, at 210 96. (back)
317. See Robinson v. California, 370 U. S. 660, 666-67
318. See Fingarette, supra note 198, at 431-32. (back)
319. See generally T. Szasz, supra note 1, at 153 74. (back)
320. See N. Kittrie, supra note 117, at 247-58. Of course, civil
commitment may properly be available for short periods in cases
of severe debilitation. (back)
321. See Plato, Charmnides, in The Collected Dialogues
of Plato supra note 154, at 100 22. (back)
322. See also K. Erikson, Wayward Puritans (1966). For
an incisive application of this conception to American views of
drug users, see R. Blum, supra note 14, at 323-41. (back)
323. The extremes of harms that a drug may work are thus domesticated
by a social context of use; for example, caffeine is ingested
in forms so diluted as to make excessive doses unlikely, wine
is taken with meals, and liquor drunk in controlled social contexts
of mutual regulation. See, E. Brecher, supra note 1, at 205-06.
See generally N. Zinberg & J. Robertson, supra note 1, at
12; R. Blum, supra note 14. (back)
324. This theme was importantly sounded in the debates that led
the British to resist the American example of prohibition of heroin
use. See H. Judson, supra note 107, at 17-18. (back)