Ron Paul’s recent public statements endorsing the legalization of heroin have caught him some flak, and not just from political conservatives.  Meanwhile, in university-land, I’ve just wrapped up another semester where we’ve spent some time surveying philosophers’ contributions to the drug legalization debate.

The difference is striking.

In politics, today, you can almost get away with saying that marijuana ought to be legal and still have a shot at national office.  Not, of course, without a large number of people claiming that your endorsement of legalization could only be driven by your clandestine desire to smoke as much dope as you can.

Among philosophers, in contrast, it is difficult to find anyone who is willing to argue for the moral defensibility of the status quo.  Nobody I’ve read thinks it is morally proper for the state to lock people up in jail for the mere use or possession of marijuana, or of heroin, cocaine, or methamphetamines either as far as I can tell.

For example, the book I’ve been using in my classes is The Legalization of Drugs: For and Against, a 2005 book from Cambridge containing two long essays from Doug Husak and Peter de Marneffe.  The title of the book suggests a clear line of division between the authors, but the most impressive thing about the debate is just how much common ground there is between the allegedly opposing sides.

Husak’s essay, in line with much of his other work on the topic, is pretty squarely on the pro-legalization side.  But to describe DeMarneffe’s position as “against legalization” is a bit misleading. What DeMarneffe  actually advocates is “decriminalization,” which means that although the large-scale manufacture and sale of certain drugs will still be criminal offenses, the possession and use of them will not.  And to the extent that DeMarnfeffe argues against full legalization, his claims are mostly directed against the legalization of heroin.  Nothing in his piece gives me any reason to think he’d oppose the full legalization of marijuana.

For DeMarneffe, the case against full legalization is based on a kind of paternalism, of the same sort he has recently deployed in an extended argument against the full legalization of prostitution.  Heroin use is bad for people, especially young people, and the state is justified in taking measures to reduce that harm.  At the same time, the state has an obligation not to interfere too excessively with personal autonomy.  People have a legitimate autonomy interest in using or experimenting with certain drugs, so locking them up for doing so would be morally illegitimate.  But DeMarneffe does not think that any similar autonomy interest is violated in locking up people for manufacturing or selling drugs.  His thought seems to be that what you do for work is not as intimately connected with your plan of life as what you put in your body.  If the job of heroin manufacturer is legally off the table, you can just do something else for a living instead.  More details about his argument can be found in a good, ungated review of the book here.

DeMarneffe’s is the most philosophically sophisticated and well-informed anti-legalization argument I’ve seen in the philosophical literature.  And even it endorses a policy regime that is radically different from the one we have.  This, I think, is telling.

Of course, I don’t think DeMarneffe goes nearly far enough.  I’m puzzled by the claim that what we do for work some 40 hours a week is less an issue of personal autonomy than what we smoke or shoot up on the evenings or weekends.  But even supposing we grant that, doesn’t decriminalization (as opposed to legalization) place a pretty big constraint on the autonomy of people who want to use drugs?  Sure, DeMarneffe doesn’t want to criminalize drug use outright, but doesn’t making it illegal to make or sell them make it very, very difficult for users to acquire and experiment with them?  As an analogy, suppose we didn’t make it illegal for you to get married, but we did make it illegal for anyone else to marry you.  Wouldn’t this be a pretty serious infringement of your autonomy?

Moreover, DeMarneffe’s policy regime misses out on one of the greatest advantages of full legalization: the reduction in criminal violence, police militarization, massive expense, and infringement of civil liberties that would be had by ending the war on drugs.  Increasing the autonomy of potential drug users is a good thing, if DeMarneffe’s policy can indeed be said to do that.  But making it harder for these guys to stay in business seems at least as important, if not more.

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  • http://anomdebus.myopenid.com/ anomdebus

    I wonder what DeMarneffe would think when a significant cadre of young people find a sudden interest in the cultivation of a small subset of showy flowers?

    I think a better marriage analogy would be: ok for you to get married, but illegal for anyone to perform a marriage ceremony.

  • Damien RS

    My switch from an-cap to soc-dem has mostly not changed my wanting drugs and prost. legalized.  OTOH, I think the FDA is generally a good thing for medical drugs and food inspection.  Odd?  Well, I could see changing medical drugs from licensing to certificatino: sell whatever you want, but people may look to the FDA for safety information.  And markets seem reticent to fully label, so mandatory labeling seems practical as well, from ingredients to labels that scream “this is addictive and will kill you!”

     OTOH, I was thinking this morning — libertarians usually accept government to prevent or punish force and fraud, right?  I suppose the argument would then be (for an anti-drug crusader) that selling certain drugs as anything other than poison is inherently fraudulent; any intimation that it’s safe to use heroin is or crack is fraudulent.  And therefore bannable.  This seems to support decriminalization: it makes no sense to jail a user (except in the way we confine the suicidal, perhaps) but would to jail the seller.  Then the debate moves back to whether drugs actually are as dangerous as all that.  (I’m fairly sure the answer is no for pot and hallucinogens, am agnostic about opiates, and suspicious of the whole class of strong stimulants, like crack and meth.  Overclocking your body, yay.)

    • http://anomdebus.myopenid.com/ anomdebus

      I don’t see that simply selling something is inherently an implicit intimation that it is safe. Any fraud would have to show that the substance has been adulterated from the generally accepted or explicitly defined ingredients.

    • Anonymous

      If it weren’t for all the corruption and violence, I’d agree with you. But even with surely dangerous drugs, if you keep them illegal, even just for commercial distribution, you are left with the corruption and violence problem.

      My view on this is colored by my years as a lawyer for Atlanta Legal Aid during the early years of the crack epidemic, late ’80s to mid ’90s. I started there as basically libertarian about drugs–using crack was a bad idea but really no business of mine or the government’s. Then I started to represent residents of public housing, where the dealers took over innocent peoples’ apartments; where clients with no connection to each other independently told me their 2-year-olds knew to hit the floor when they heard gunfire; where I saw the bullet holes in my clients’ windows and walls. For a few years I thought, “we need to lock those bastards up and throw away the keys.” Then the ’94 elections really rocked my world. They made me see that the American public will never support a big enough government to end drugs–they will support only a government big enough to keep drugs out of rich neighborhoods, thus confining them to poor neighborhoods by default. And not just at home–we’ll keep drug violence from ruining our own government, but not the governments of poor countries like Colombia and Mexico and Afghanistan, and now oozing into West Africa as well.

      Given that we are absolutely unwilling to do what’s needed to stamp out the drug trade, its harmful effects should be distributed equitably, and not dumped on the poor. The only way to do that is full legalization.

      • Damien RS

        Yeah, not like I really disagree with that.

        Though I note the violence can’t be solely attributable to drugs; other countries have drug ‘problems’ without so much of running gunfights in the streets.  America’s probably a more homicidal country in general, but I suspect there are other factors, like how and where we police.  Seems like we could do more to discourage violence… of course, having criminal penalties for violence be greater than those for having drugs would be a good start.  (I don’t know what the current situation is, but I have a vague  impression they’re comparable.  And I don’t know how other countries punish drug crimes.)

    • geoih

      Are guns “safe”? What is your definition of “safe”? There are millions of things out there that can be and are used safely and unsafely. How does something being unsafe mean that it can be banned? Where is that written?

  • Daniel Shapiro

    When I teach this topic, I don’t even discuss the legalization of marijuana, as it is too easy an issue and virtually all my students favor it, making it a boring topic. I limit my discussion to the so-called ’hard’ drugs, e.g. cocaine and heroin. BTW, if anyone is interested, I have a reply to an early version of deMarnefee’s argument for heroin prohibition in Criminal Justice Ethics, Winter/Spring 2003 (the articles are from an APA symposium on Drug Legalization–Husak vs. George Sher, DeMarnefee vs. me and a concluding piece by Lester Hunt who narrated the symposium)

  • http://twitter.com/VelizCF CFV

    Two comments:

    1. The “common ground” between the two seems to be more ample. Douglas Husak is more cautious regarding the question of drugs legalization:

    “The first point to recall is that drug decriminalization and legalization are separate issues. Decriminalization, as I have defined it, has no direct implications for production or sale. It is entirely consistent with punishing producers and/or sellers of newly decriminalized drugs.” (Cf. The Legalization of Drugs: For and Against, p. 96, and his discussion on p. 96-105).

    2. In relation to DeMarneffe’s individualist argument on p. 122-23. If I have understood well, it is, in the end, an autonomy-based argument against drug legalization of heroin (“heroin prohibition”).

    (See for instance, p. 133: “My argument is that the legalization of heroin would substantially increase the risk to some individuals of losing important opportunities, the loss of which would significantly dim their life prospects.”)

    If it were successful (which I neither want to affirm nor deny), then it is unclear to me why DeMarneffe thinks his argument would not support drug criminalization as well. 

  • Mlister

    These days it’s quite possible (and even common) to take heroin by means other than injection and still have a pretty fast effect.  I believe that smoking is not unusual, and in medical settings nasal inhalers are sometimes used.  I mention this so that people realize that legalizing heroin would likely lead to _less_ “shooting up” than happens now.  (My understanding is that that is already a lot less common than in the past.  This has to do with the purity of the drug, as far as I understand.)  That’s worth noting because a lot of the bad secondary effects of heroin are related to regular shooting up- HIV and hepatitis transmission, gross and often infected sores, a pretty unpleasant sight to see, blood on one’s clothes, etc.  With these things out of the way and with more standardized doses, it’s not completely clear to me that heroin is _massively_ more dangerous than alcohol.  (It’s much less likely to lead to violence, for one thing.)  Even now, people can, and do, use heroin and cocaine with modest  regularity and maintain perfectly normal, productive lives.  Many such people are high-flying businessmen and the like.  I admit to feeling uncomfortable with the idea of heroin and cocaine stands or stores, but I’m pretty sure some of that is due to less-than-fully rational elements in my thinking, and the unfamiliarity of it all. 

    I’d draw the line, however, at the legal sale of meth.  While some stimulants could probably be made reasonably safe (we give huge amounts of them to kids these days already, after all, as medicine) meth, as it is, is really, really bad for people, is rather more addictive than cocaine or heroin (or alcohol), and, perhaps most importantly, tends to make people both paranoid and aggressive, and so dangerous to others.  I probably do not support criminal sanctions for the mere possession of smallish amounts or use, but I would be opposed to legalizing sales or distribution of it, because of the high externalities.

    • Anonymous

      If cocaine were legal to buy and sell, very few people would ever use crystal meth. There would be no point in keeping it illegal, because there would be hardly any market for it anyway. Crystal meth is a drug of last resort, that people only turn to now because it is so much cheaper than coke, and it’s easier to find because it can be manufactured locally. To see the full benefits of legalization over our current insane policies, you can’t pick and choose what people  will be allowed to put into their own bodies of their own free will. Yes, crystal meth is bad, but like every other illegal drug, the vast majority of the problems associated with it are caused by its prohibition, not by the drug itself.

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  • geoih

    Have people forgotten basic economics? How do you think you can make demand legal, but supply illegal, and still have some sort of system that is not corrupted by state intervention?

  • guest

    James Q. Wilson’s (though not a philosopher) arguments against drug legalization were always well thought-out.

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  • Reality

    No one rots away in jail for possession. The laws on the book allow for that in some jurisdictions, but this debate always takes place without regard to the ACTUAL IMPLEMENTATION of those laws. Users caught with small quantities get sentenced to drug rehab or probation, at the worst. The only people who end up in jail/prison are the ones charged with more serious crimes (drug distribution, theft, weapons offenses, etc.) but take a plea to possession charges because they’re lesser offenses, usually misdemeanors. The court system doesn’t have any will to throw addicts into jail simply because they’re users. This point is crucial in the debate but always overlooked.

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