[Another of my coursework essays, from last semester. My own choice of title. Very enjoyable working on it again, but yet again, probably a title that could have justified double the word limit!]
Legal prohibitions, broadly defined as “the outlawing of the manufacture, distribution, sale or provision of particular goods and services by consenting adults,” (Meadowcroft, 2008: 21) have been the setting for some key debates about the limits of legitimate interference in individuals’ lives and choices by the community. They also contribute to an understanding of the extent to which the law is primarily interested in justice for victims of crime or is a tool of political control.
The center stage of the debate has shifted over time, on issues such as the decriminalization of homosexual sex and the legal availability of pornography, alcohol, gambling outlets, professional sexual services, and, as this paper will focus on, drugs. All are examples of crimes created by legislation where there is no apparent victim other than consenting participants or consumers. Most have surfaced many times in different cultures and historical periods throughout human history. They tend to be issues at the margins of acceptability in the social and cultural environments in which they become the subject of prohibition attempts.
This paper will use one issue, drug control, to examine justifications offered for restrictions of individuals’ liberty. Looking specifically at arguments derived from the “harm principle”, as notably expressed by John Stuart Mill, it will investigate whether the predominant contemporary prohibitionist approach to drugs control is an example of the cure being worse than the disease that might itself breach Mill’s principle.
Drug control is especially interesting because, unlike most of the other common subjects of prohibition mentioned, it has become largely synonymous with the language, and then tactics, of the battlefield, in the “drug war paradigm” (Tupper, 2012). Not only are the participants portrayed as morally culpable, as with most other subjects of prohibition, but exceptionally drugs users, and even the inanimate substances themselves, are “malevolent agents”, even existential threats to the community.
On a point of terminology, this paper makes little attempt to define precisely what we mean by “drugs”. Tupper’s discourse analysis of the cultural development of the word “drug” shows how we apprehend different meanings in different contexts (Tupper, 2012). It should be enough to say that for this paper, “drug” is understood to mean a substance taken outside medical supervision, primarily for non-medical purposes, that the competent authorities of the time have decided should be controlled, usually through criminal sanctions.
The Limits of Legitimate Community Coercion
The question of the extent to which it is legitimate for the community to interfere in the actions or choices of an individual has long absorbed political theorists. For liberals, who ostensibly hold individual liberty as paramount, restrictions on the freedom of members of the community to do as they wish should require specific justification. The utilitarian liberal philosopher John Stuart Mill, in what is known as the “harm principle”, most famously formulated a commonly invoked test for whether a restriction is justifiable. He argued that we only have a right to interfere with the liberty of action of anyone else for self-protection. As a community, then, the “only purpose for which power can be rightfully exercised over any member [against his will], is to prevent harm to others. His own good, either physical or moral, is not sufficient warrant” (Mill, 1859 : 68).
This demands an understanding of what constitutes “harm”; of who, in any particular example, inflicts any harm; and whether the restriction of one’s liberty is proportionate to any harm to others that may result. Before examining some of the arguments for applying the “harm principle” to drug control, however, it is worth recording that there are arguments other than this distinctly liberal “harm principle” in favour of intervention even in ostensibly victimless private conduct.
One commonly used (often by liberals as well as others) paternalist argument is that interference is legitimate even if individuals can only harm themselves if for some reason their ability to undertake that harmful activity voluntarily is compromised. Addiction, for example, may itself compel the addict to further use and justify intervention to save the individual from harming themselves involuntarily.
In debates following the Wolfendon Report process that culminated in the decriminalisation of homosexual sex under certain conditions legal moralists such as Patrick (later Lord) Devlin argued that the law should protect the predominant contemporary moral consensus and that if harm was relevant at all it was in the context of the harm to society of failing to defend its defining mores (Feinberg, 1973: 37).
Harm and the History of Drug Control
In the history of drug control policy it is not always evident that the harm principle has been the prime justification for prohibition of certain substances at various times. The first city ordinances in the USA against opium are argued to have been motivated by “sensationalist” anti-Chinese moral panics (Agnew, 2014: 162). Arguments for the criminalization of cocaine include what must by today’s standards extraordinarily and unacceptably racist public discourse depicting African-American “Cocaine fiends” as the “New Southern Menace” (Huntington Williams, 1914). Paternalist and Legal Moralist arguments formed the basis of the Temperance Movement that was influential in building up support for prohibition not just of alcohol in the USA but of commonly used, often prescribed, drugs such as opium tinctures and cocaine tonics. It also developed the idea of intoxicating substances as malevolent agents in the personification of the “demon drink.” A developing understanding of the actual or potential harms, primarily to the user, of opium and cocaine products, certainly played a part in the campaign toward prohibition, but it was the paternalist concern for harm to the user, rather than the liberal Millian test of harm to others (Kandall, 1998: 41).
Few if any of these sorts of justifications would satisfy the modern day liberal wanting to be satisfied of Mill’s blessing for contemporary drugs prohibition. Indeed, the illiberal, prejudiced and paternalistic nature of these arguments for prohibition seem to make it all the more important for the liberal to find extraordinarily strong harm-principle grounded arguments to justify continuing prohibition. The harms suggested are often still not ones that indicate any identifiable victims, but rather focus on the user’s ability to contribute to the community. And those who advocate relaxing of prohibition respond that most of these purported harms arise from the effects of prohibition, rather than of the use of the drugs themselves (Husak, 1992: 146).
The Harms of Prohibition?
It is important, therefore, to bear this in mind when analysing suggested harms to which I now turn. Whilst he doesn’t link these specifically to the harm principle, legal philosopher Douglas Husak, sets out four broad areas of argument that “Criminalization is justified in order to protect public health, to protect our children, to reduce crime, or to preserve morality” (Husak & de Marneffe, 2005: Ch 3). Unless we accept Devlin’s argument that failure to defend a community’s moral customs undermines the very fabric of that community and constitutes (the greatest possible) harm (Harcourt, 1999: 124), “preserving morality” is not in the scope of the liberal concept of the harm principle. But the other three bear some analysis from the perspective of applying the harm principle.
Whilst the personal health risks of drugs use on the user properly fall outside the harm principle as being ones the user has chosen to accept some aspects of drugs use carry wider public health consequences for nonusers. For instance, intravenous use of drugs, particularly associated with shared injecting equipment, contributes to the spread of blood borne infections. These can affect non-using people in devastating ways, such as contamination of medical blood products with hepatitis, and transmission of HIV from the needle sharing population to non-using sexual partners (Gostin, 1997). But such public health worries are at least exacerbated by the prohibition itself. In driving the market underground, users have few officially sanctioned outlets for clean, safe “works”, and are less likely to present to health authorities if they themselves become ill. Furthermore, the underground market makes it difficult to assure the quality of the drugs users take. Public health resources are diverted unnecessarily when users do need medical intervention because they don’t know how much, and of what, they have taken. Both these examples of public health justifications for prohibition would seem, in fact, to be ameliorated by a freer, perhaps regulated, and non-criminal availability of drugs, safe equipment and accurate information.
The second area identified by Husak from which justification for legally enforced controls on drugs might emerge is to “protect our children”. This would appear initially to be a case in which Mill’s harm principle might be invoked. Medical evidence does suggest that the effects of some drugs may be more harmful for still growing bodies and brains than for adults (Arseneault et al, 2002), but the same applies to legal and regulated psychoactive substances such as alcohol. Whilst even in that regulated legal market for alcohol, young people below the legally mandated age manage to get hold of alcohol this is a great improvement on the effect of a criminal and underground market in drugs, in which dealers care little about the age and certainly nothing about the health of their customers.
Lastly, the idea that prohibition might help to “reduce crime” is one that surely meets liberal principles. Drugs related crime is widespread (Home Office, 2009: 2). But there are many, plausible arguments that much of this crime is also precisely because the substances are prohibited and supply handed over to criminal organisations. It is likely that the cost of illicit drugs, whilst it has fallen almost inexorably over the era of prohibition, is still higher than they would naturally be in a regulated legal market. Much drug related crime is acquisitive property crime, undertaken to get money for these artificially inflated drug costs. The criminal supply is lucrative business and drug related “turf wars” are common, and, as seen in Mexico over the past few years, increasingly deadly (DPA, 2013). It seems counterintuitive to believe that one can reduce crime by creating more criminals out of drug users and suppliers and by handing control of the entire industry to unscrupulous criminal organisations.
There seems little liberal justification then, on Millian harm principles, for the legal prohibition of drugs, and every chance that the harms ascribed to drugs themselves may be a result of prohibition and might be ameliorated or eradicated by regulated, legal supply of drugs.
When the Cure is Worse than the Disease
So far, this paper has concentrated on the applicability of Mill’s harm principle to control of drugs. Here it will briefly examine the claims of one anti-drug war campaigner, Columbia University linguist John McWhorter, about the “collateral damage” done in prosecution of that War. McWhorter says that the War on Drugs perpetuates and intensifies racial discrimination (in his case in America but many of his arguments are pertinent to the UK also). This war has led to a disproportionate number of young non-white men criminalised and imprisoned, and the criminals as role models, destroying black and minority ethnic communities, leaving children fatherless (McWhorter, 2011: 2). In turn this has led to a breakdown in relations between police and this demographic, and more generally in their engagement with civil society. If such egregious harms can be attributed to the War on Drugs, we must question whether the cure, in the form of prohibition, creates more harm than the ailment it seeks to remedy, the use of drugs. If so, we may have to conclude, with Husak, that the “best reason not to criminalize drug use is that no argument in favour of criminalizing drug use is any good” (Husak, 2003).
In the final analysis, much of the history of drugs control has been influenced by arguments few, even amongst non-liberals, would accept today, based on racial prejudice and moral panic. For some liberals the argument, in respect of those who develop a dependency on particular substances, that intervention might be justifiable to help them escape that addiction. But applying the “harm principle” that liberals ought at least to consider necessary if not sufficient grounds for restrictions on people’s liberty appear tenuous, with “society” rather than individuals the vague “victim” of drug use. Finally, there is evidence both that prohibition causes many of the harms that may be ascribed to drugs themselves and that the collateral damage in the form of social breakdown as a result of the “drug war paradigm” is too great a price to pay for this particular use of law and punishment to control what might otherwise be relatively victimless activities.
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