Death Drug Essay Human Law Overcriminalization Right Sex

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Editorial Reviews

Review

The best philosophical treatment of decriminalization available. (Ethics: An International Journal of Social, Political, and Legal Philosophy)



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Editorial Reviews

Review

The best philosophical treatment of decriminalization available. (Ethics: An International Journal of Social, Political, and Legal Philosophy)



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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

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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Go to Chapter 1
Laws criminalizing the use of certain drugs have been major targets of the general liberal critique of overcriminalization.[1]As in the case of commercial sex, advocates of decriminalization have had little success in opposing drug laws,[2]despite the sound arguments they have advanced that enforcement is costly and wasteful. It is not enough, however, to raise cost-benefit concerns;[3]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,
      AND PHARMACOLOGICAL PERSPECTIVES

A drug may be broadly defined as "any chemical agent that affects living processes"[4]that may be ingested through the mouth, the rectum, by injection, or by inhalation.[5]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.[6]The 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,[7]relief of symptoms, pain, or anxiety,[8]regulation of mood (by way either of depressants or stimulants),[9]stimulation and exploration of religious experience,[10] release of hallucinatory fantasy for a range of purposes,[11]and recreational pleasure.[12]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[13]incorporated elements of drug use into rituals[14]in which the shaman experienced mystical and ecstatic states that appear to have brought comfort to the sick and afflicted.[15]In addition, the shaman through such rituals received prophetic and political messages for the society at large.[16]Anthropological 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.[17]In the ancient world, the drug soma, of uncertain identity,[18]appears to have been integral to the mystical experiences of the divine celebrated in the ancient hymns of the Hindu RgVeda.[19]Drug use in some form may have been central to the Greek mystery cults.[20]One historian controversially has identified drug use as contributing to the origins of Christianity.[21]
    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.[22]Shamanic possession and ecstasy, at the heart of much earlier religion, becomes, from this perspective, one form of demonic or satanic witchcraft,[23]a charge that Catholic missionaries made against the shamanic practices they encountered in the New World.[24]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 divine,[25]expressed in the submission of the self to ethical imperatives by which persons express their common humanity and a religious humility.[26]Accordingly, western, in contrast to nonwestern, mystical experience expresses the distance between the human and the divine. Drugs, including alcohol,[27]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 by Euripides,[28]and appear to have been part of the fabric of cultivated social intercourse in Plato's Athens.[29]Overindulgence, to the point of drunkenness, was certainly considered a vice,[30]but 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."[31]When the use of caffeine and nicotine was introduced into western and other cultures, these drugs encountered cultural and some spirited political resistance,[32]but were in time integrated into new forms of social and personal life.
    A striking political concern with alcohol use developed with the availability of distilled liquor.[33]Hogarth's 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).[34]In 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 by faith,[35]appear to have seen any religious or moral benefit in the elimination of alcohol from social and personal life.[36]Religious support for prohibition of alcohol dates from the Radical Reformation,[37]which saw the rise of Anabaptist sects in Europe and of Quakers and Methodists in England.[38]These 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.[39]
    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,[40]by 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.[41]His argument against hard liquor cited a litany of medical and social harms, including harms to physical well-being[42]and to social virtue.[43]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 of suicide.[44]In the conclusion of his argument, he described Quakers and Methodists as religious groups who comprehended their duty to renounce hard liquor,[45]and issued a call to American ministers of every denomination to join them as a moral force in combating this social evil.[46]
    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.[47]These often extravagant Biblical interpretations,[48]which defy any sound canons of Biblical scholarship,[49]fired an emerging American Protestant orthodoxy.[50]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 or fermented.[51]The prohibition of fermented beverages, which Rush would not have supported,[52]derived from an increasingly popular argument found in the prohibition movement literature. It was maintained that fermented beverages were a steppingstone to distilled liquor[53]and, accordingly, that ending the "habit forming and brain perverting"[54]effects of hard liquor required the prohibition of fermented beverages as well.[55]
    The religious ideals that fueled this movement became secularized into a dominant conception of "public morality," as articulated by purity reformers.[56]Identifying morality with the asexual and spiritual nature of women in the home,[57]these reformers perceived liquor use in the familiar masculine territory of the saloons as a threat to moral values,[58]calling men from the spiritual sanctuary of wife and children into the coarse, competitive, and sensual public worlds of work and politics.[59]Prohibition appears to have been associated, ideologically, with the purification of politics:[60]the evil of liquor was increasingly condemned as a form of slavery, which undermined "a citizen in his political capacity."[61]The culmination of this movement was, of course, Prohibition,[62]instituted via the eighteenth amendment to the United States Constitution in 1919, and repealed by the twenty-first amendment in 1933.[63]
    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 drugs—to opium in the period of growing intransigence that culminated in Prohibition[64]and to marijuana in the frustrating period for purity reformers after Repeal.[65]The case of opium is particularly instructive. Opium, the use of which as an analgesic is ancient,[66]was brought 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[67]and Baudelaire,[68]and by the shrewd essayist De Quincey.[69]Its widespread use in America as an ingredient of the popular medicines used largely by women (who may have had religious scruples about alcohol)[70]went largely unnoticed until the end of the nineteenth century.[71]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.[72]A central 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.[73]Brent argued:
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.[74]

    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.[75]The British 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 the west,[76]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."[77]The United States thus became the first western nation to sponsor a respected study that advocated some form of prohibition.
    The growing American concern with opium was fired by reports from Christian missionaries in China.[78]Opium was available to the Chinese either through a black market or after it had been subjected to a series of tariffs.[79]Although 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.[80]0 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,[81]similar 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 Opium Wars,[82]which opened China to the opium trade, opened China to Christianity as well.[83]While 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 Chinese.[84]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.[85]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.[86]Both were forms of intemperance which were "enem[ies] of spirituality and ... defiler[s] of the body."[87]Accordingly, Chinese converts were told they could not be both Christians and opium takers.[88]
    These missionary attitudes reached the United States in a variety of ways.[89]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.[90]One of the missionaries, Bishop Brent, not only sat on the Philippine Opium Commission, but appears to have sent to President Roosevelt in 1906[91]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 trade.[92]When a study prepared for the Conference revealed widespread use of opium in the United States,[93]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.[94]The embarrassing gap in American domestic law,[95]in contrast to the United State's aggressively prohibitory international stance,[96]led to the Harrison Act of 1914, a regulatory and licensing statute for opium.[97]
    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.[98]The administrative construction of the statute, which took form in the period of Prohibition, [99]decisively rejected any such use of opium.[100]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 fiend";[101]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."[102]In still another case, the Court spoke of heroin maintenance as "the gratification of a diseased appetite for these pernicious drugs."[103]
    Although the Court later reversed itself,[104]its original decisions lent legitimacy to the construction of the Act by a small group of Washington administrators,[105]who condemned and prematurely ended experiments by several states in providing heroin maintenance clinics.[106]The medical profession in the United States, in contrast to the British profession, which strongly and successfully resisted similar measures in Britain,[107]was unable to prevent the prohibition of maintenance.[108]The American 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").[109]These dubious assumptions were never questioned. By the time of the first careful and impartial discussion of the facts,[110]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.[111]
    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.[112]The campaign leading to the passage of the Marihuana Tax Act of 1937,[113]for example, included remarkable distortions of the evidence of harm caused by marijuana,[114]ignoring the findings of empirical inquiries.[115]In later years, sanctions for the use of drugs, especially heroin, increased both at the federal and state levels.[116]California and New York experimented with hospitalization of addicts,[117]but in ways that may have been as objectionable as criminalization itself.[118]New York turned from its abortive experiment to some of the harshest criminal sanctions for drug use in the United States.[119]
    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.[120]Among the hallucinogens, for example, mescaline[121]and LSD[122]induce more powerful experiences than previously known narcotic plants.[123]The chemical innovations of morphine[124]and heroin,[125]as well as the technological innovation of the hypodermic needle,[126]have 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),[127]caffeine,[128]nicotine,[129]the depressants (alcohol, barbiturates, tranquilizers, and other sedatives and hypnotics),[130]the stimulants (including coca leaves, cocaine, and amphetamines),[131]and the hallucinogens or phantasticants (mescaline, LSD, LSD-like drugs, marijuana, and hashish) [132]
    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 state statutes.[133]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.[134]

 

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.

 

A. Criminogenesis

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 crime operations.[135]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 incidental crime.
    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.[136]The organized crime argument begs the question, since it is criminalization, not drug use itself, that makes possible organized crime involvement.[137]
    Second, to the extent that drug use is related to increases in other criminal activity, or diversion of criminal activity into certain forms,[138]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,[139]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,[140]no causal nexus with ancillary crime exists,[141]and the level of drug addiction appears under control.[142]In 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 women,[143]now includes a disproportionate number of poor urban minorities.[144]The moral implications of this shift, for which criminalization bears some responsibility,[145]are themselves 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.[146]No 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[147]or law enforcement reports,[148]self-serving confessions by criminals that their conduct was induced by drugs,[149]or unsubstantiated surmises of enforcement officials wholly lacking any critical impartiality on the question.[150]
    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.[151]In 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 contexts—for example, prior to driving. This discovery may also lead them to conclude that all distinctions between legal and illegal drugs are irrational and hypocritical,[152]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 to combat.

 

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 disease—for 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.[153]
    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 prescription.[154]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, and warnings.
    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.[155]The lack of appropriate medical supervision over the sterilization of hypodermic needles used to inject heroin accounts for the diseases found at the site of injection.[156]In addition, 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.[157]Malnutrition, 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.[158]

 

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 self.[159]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.[160]Augustine's procreational 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.[161]From 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.[162]
    The general Augustinian model of self-control is no more sustainable when applied to drug use than to sex:[163]drug use does not produce a drunken anarchy inconsistent with the aims of rational will as such. Humans use drugs for diverse purposes—for 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.[164]Humans 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[165]and, sometimes, increased freedom and flexibility of imagination.[166]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.[167]This should 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.[168]
    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 drug use.
    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.[169]This 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.[170]Excessive drug use, to the point of drunkenness, for example, was a vice,[171]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.[172]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.[173]The 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.[174]
    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,[175]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.[176]He strikingly defined the consumption of distilled liquor as a form of suicide,[177]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,[178]with which there could be no compromise. This, in short, is the moral philosophy underlying America's unique experiment with prohibition of alcohol,[179]its remarkable generalization of this approach to opium and marijuana,[180]and its continuing prohibitions in other areas of drug use.[181]
    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.[182]These principles 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.[183]Beyond this morality of decency there are standards of aspiration[184]which, without 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 ideals.
    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 in particular.
    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,"[185]he observed:
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 the amount.[186]

    Kant, like Rush,[187]apparently conceded that the moderate use of fermented beverages is moral because it may enliven the candor of social exchange.[188]Kant 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."[189]The gravamen 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,"[190]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.[191]
    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 same effect),[192](2) physical dependence (the incidence of withdrawal symptoms when drug use is stopped),[193](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).[194]Tolerance 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.[195]Most 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 of withdrawal,[196]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.[197]Conversely, 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.[198]Moreover, patterns of devotion or abuse may arise for drugs, such as the stimulants, which do not cause physical dependence.[199]Finally, psychological devotion and abuse do not appear to be permanent states: many persons give up drug use in a natural process of maturation.[200]
    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.[201]In fact, careful empirical studies of the causes of drug devotion or abuse demonstrate the importance, not of physiological dependence, but of social and psychological factors.[202]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, and disadvantaged.[203]Many engaged in crime before they were addicted; after becoming addicted they turned to different kinds of crime more suited to maintain their habits.[204]Many perceptive social analysts have observed that such disadvantaged and alienated young people find in heroin a kind of socially confirmed identity.[205]Drug 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,[206]and its 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.[207]They 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.[208]
    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[209]or to wealth.[210]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."[211]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.[212]
    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 others—for example, by engaging in violence, robbery, or the like—no 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[213]or on causal connections that the criminalization of drug use, not drug use in itself, fosters.[214]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'[215]that 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,[216]the psychological 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.[217]In his central statements of ethical theory, moral personality is described in terms of autonomous independence—the 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.[218]In 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.[219]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.[220]It is a prima facie violation of such moral obligations to take drugs that impair the well-being of the unborn child.[221]To the extent that grave effects of such kinds may occur, drug taking by parents during the relevant period of risk may be appropriately regulated.[222]
    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.[223]

 

C. Harms to Society in General

A common argument for the criminalization of drug use centers on alleged harms to society.[224]It is 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.[225]
    One natural form of this argument is to follow Benjamin Rush in describing drug use as a form of suicide,[226]and 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,[227]which was repeated with approval by Saint Thomas Aquinas[228]and read into the Anglo-American legal heritage by Blackstone.[229]
    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.[230]Certainly, 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[231]and in Great Britain and European countries today,[232]heroin use could be appropriately regulated and supervised. Users could hold regular jobs and lead otherwise conventional lives.[233]By contrast, in the United States after criminalization, the now illegal and unsupervised forms of heroin use have become both more injurious[234]and more likely to be associated with a socially unproductive criminal underworld life.[235]
    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 (non-Protestant) values;[236]when heroin came under attack, it was identified with Chinese influences from which America, it was said, must be protected;[237]marijuana was associated with undesirable Hispanic influences on American values,[238]and cocaine with black influences.[239]It is difficult to see anything in these claims but familiar sociological manifestations of cultural hegemony.[240]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.[241]In addition, 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.[242]Students 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.[243]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.[244]Sometimes 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.[245]Decriminalization, accordingly, is disfavored because it legitimates, by a misplaced ideology of tolerance, the passive vulnerability of the poor to exploitation.[246]
    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.[247]In 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.[248]The composition of this drug-using population was probably decisively shaped by criminalization, resulting in a disproportionate number of addicts today among poor urban minorities.[249]That criminalization is responsible for these shifts is borne out by studies linking addiction to social and psychological factors.[250]
    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.[251]When it is observed that criminalization has clearly fostered injuries incident to drug use, including death, that regulation and supervision can lessen these dangers,[252]and that 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.[253]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;[254]rather, 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.[255]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.[256]

 

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.[257]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 rights.
    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 too rational.
    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.[258]These 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,[259]to endure adverse climactic and environmental circumstances,[260]and in general to meet more robustly and pleasurably the demands on their lives.[261]Some religions,[262]like some artists,[263]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.[264]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.[265]Some find even in "addictive" drugs a way of life with more interest, challenge, and self-respect than the available alternatives.[266]It 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,[267]to impotence,[268]to certain organic disorders,[269]and sometimes, despite all proper precautions, to death.[270]As 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,[271]others, 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 experience,[272]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.[273]
    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 life choices.[274]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 reformulation.[275]
    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 and paternalism.
    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[276]and, more recently, right-to-die contexts.[277]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[278]has 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 instead.[279]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 persons—beings capable of critical self-consciousness—to 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 own experience.[280]
    Commitment to this basic moral principle requires a neutral respect for evaluative independence. But this principle is, as we have seen,[281]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.[282]The 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 morality rebels.[283]

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