The drug laws don’t work

Michael Huemer argues we shouldn’t fight a war on drugs, we should legalise them

drugs200Let me begin with a story, and see what you think about it. A man named Flip owned a computer. Flip, however, took very bad care of his computer. He often ate and drank over the computer, which resulted in his spilling Coke on the keyboard on three occasions, ruining the keyboard each time. He installed software that slowed the machine’s performance and caused the operating system to become unstable. Flip thought these programs were “cool”, but most industry experts considered them shoddy products whose drawbacks far outweighed their usefulness. Finally, three weeks ago, Flip got angry at his computer and threw it on the floor. The motherboard and several other components were fatally damaged, so that Flip no longer has a working computer. End of story.

Flip was an imprudent and irresponsible computer owner. He made several bad decisions. It would clearly have been better had he taken care of his computer, not installed harmful software, and never thrown it on the floor. This would have been better for the computer, for Flip, and even for society, for Flip would have been a more productive citizen with a working computer. So a question naturally arises: how might we prevent people from behaving like Flip?

A solution fairly thrusts itself on our imagination (or at any rate, on the imagination of those who take their cue from modern politics): we could send the police after Flip, to drag him off and throw him in jail. That would send a message to other would-be computer abusers.

What are we to think of this plan? Of course, as things stand, Flip will not be sent to prison because he has violated no law. But that just invites the question: Should Flip’s behaviour be against the law? It is clear enough that the behaviour was foolish and without redeeming social value. So why isn’t it illegal?

Here is why: because what Flip did, he did to his own computer. If Flip had destroyed someone else’s computer, say a computer in a public library, then he would be held accountable by the state, and rightly so. Likewise, if he had destroyed his computer in a manner directly harmful to someone else—say, by throwing the computer at another person—then he would deserve to be punished. But he does not deserve to be punished purely for what he does, privately, with his own property.

It isn’t that what Flip did was not sufficiently harmful. Flip could have had a top-of-the-line, $5,000 computer worth three months’ of his salary. It could have contained the only copies of his personal correspondence over the last twenty years, plus the Ph.D. dissertation he was working on for the last five years. None of that matters to assessing his legal liability. Nor is the point that no one else was made worse off by Flip’s behavior. Suppose that scholarship in his field of study will be set back thirty years by the tragic loss of Flip’s brilliant dissertation. Furthermore, Flip will be unhappy for the next several months because of the loss of his computer, causing his family and friends also to be unhappy. Again, none of this matters to assessing Flip’s fitness for public sanctions. As long as what Flip destroyed is clearly understood to have been entirely his own property, and as long as he did not in the process take or damage anything that another person had a right to, his deplorable behaviour would not and should not be legally punished. Almost no one would favor changing the laws in that regard.

This is our conception of property. When you own something, you may do with it as you wish, even including damaging or destroying it, up until the point at which you violate another person’s rights over what is theirs. This is what we generally accept when it comes to our material possessions—our computers, our clothes, our cars, and so on.

Now, what about our bodies? Shouldn’t we have at least as much right to control our own bodies as we have to control a computer? For what is more authentically yours than your own body?

Somehow, the majority of people disagree. Consider the case of Trip. Trip has a body. But like many of us, Trip takes rather poor care of this body. He often puts substances into it that damage his health and have little or no nutritional value. He claims that these substances give him great enjoyment, but most medical experts consider the harms to far outweigh any benefits of these substances. By ingesting them, Trip greatly reduces his overall life expectancy.

What can be done about Trip? Whereas nearly everyone is content to leave Flip alone to make his own mistakes with computers, most individuals and governments would see Trip hauled away and forcibly confined for years, in punishment for his indiscretions. At least, they would if Trip’s preferred “substances” include marijuana, cocaine, heroin, or any of several other specific substances named in the law. We would not, however, see Trip punished if his preferred substances include only alcohol, tobacco, and fatty foods. Although more people are killed every year by the latter substances than by illegal drugs—over twenty times more in the case of tobacco—most would consider legal sanctions for smoking, alcohol consumption, and overeating to be taking things too far.

Why this contrast in our attitudes? Why is consumption of illegal drugs viewed so differently from consumption of other harmful substances, or participation in self-harming activities more generally? One reason is the value of purity. Psychologist Jonathan Haidt has identified five broad kinds of ideas that influence people’s moral attitudes—ideas about harm, fairness, loyalty, authority, and purity. Conservatives tend to be more strongly influenced than liberals by the last three. In particular, many see illegal drugs as impure and as pollutants of the body. But few see alcohol, tobacco, or fatty foods in that way, even if they are objectively more harmful. This is partly because of social conditions created by the legal regime itself: we see normal, respected individuals drinking, smoking, and eating unhealthy foods in public all the time. We see no such thing for illegal drugs, which we tend to associate with sordid, poor, dangerous neighbourhoods and people.

What we should realize, when we are influenced by these feelings, is that illegal drugs are not inherently unclean, any more than alcohol, tobacco, or canola oil. All of these are simply chemicals that people choose to ingest for enjoyment, and that can harm our health if used to excess. Most of the sordid associations we have with illegal drugs are actually the product of the drug laws: it is because of the laws that drugs are sold on the black market, that Latin American crime bosses are made rich, that government officials are corrupted, and that drug users rob others to buy drugs. The drug laws create a regime in which crime burgeons: because legitimate businesses are prevented from providing the goods demanded by the market, criminals step in to provide the product, at greatly inflated prices. During America’s experiment with alcohol prohibition, organized crime grew bold and powerful from its booming trade in illegal alcohol. When prohibition ended, the alcohol business was taken over by legitimate businesses. Today, alcohol is sold in stores, not on the streets; it is shipped from breweries in the daylight, not smuggled across borders by criminal organizations; no government is corrupted by alcohol money; and virtually no one robs other people to get money to buy alcohol. The difference between the situation of alcohol and that of illegal drugs lies not in their chemical or pharmacological properties; it lies in the law. In the case of the drug trade, we have created laws that protect criminal organizations from noncriminal competition, thereby granting obscene profits to criminals.

None of this is to deny that misuse and overuse of drugs create problems for the user and those around him. The same is true, as I have said, of alcohol, tobacco, and unhealthy foods. But without prohibition, the problems created by drug use would be mainly private problems; it is the law that enables the drug trade to damage and corrupt society.

Most philosophers, in my experience, can be brought to agree with the case for legalisation. But there is another reason—apart from sentiments about purity—why most non-philosophers do not accept this case. That is that the legalization position strikes many as defeatist. We have a problem: drugs ruin many people’s lives. The legalisers’ position offers no solution to this problem, counselling instead that we merely learn to live with it. We hear this complaint often from the prohibitionists’ side. As conservative U.S. Senator Jon Kyl put it, “What [the legalisation advocates] all have in common is a defeatist mentality that America is losing the war on drugs, and a shared faith that we can somehow win it by surrendering.” The Senator’s last remark is of course a misstatement: legalisers do not propose to win the war on drugs by surrendering. They propose no way of winning at all. Those who advocated the repeal of alcohol prohibition likewise offered no way of winning the battle against drunkenness. Rather than trying to win that battle, we have learned to live with the enemy as best we can.

Many conservatives feel repelled by this cynical approach. Those who feel this way would do well to learn from the views of their conservative colleagues about economic policy. Conservatives have long pointed up the unworkability of socialism. Many socialists find this critique cynical and defeatist: market economics offers no solution to the problems of human greed, poverty, and inequality. How can we be content to acquiesce in these problems, when another ideology offers a plan to perfect society and human nature?

The key insight that these sentiments are missing is that expressed in Voltaire’s dictum, “The best is the enemy of the good.” Seeking the best imaginable result—seeking to eliminate a social problem—often leaves us worse off. That is because the best is almost always unattainable, and our pursuit of it interferes with more modest strategies that could have achieved a good result, reducing the problem’s size and its collateral effects. The insight conservatives bring to the discussion of at least some social issues is that human society is imperfect because human nature is imperfect. As long as there are human beings, there will be selfishness, there will be crime, there will be foolish choices and people who ruin their own and others’ lives. The root of the drug problem is not that there are too many drugs around, or that they are too cheap, or that people have yet to be sufficiently educated as to their harmful effects. The root of the problem lies in the fact that some human beings desire escape from their troubles, and that human beings are tempted more by immediate pleasures than by the long-term good. Until humans are replaced by angels, that problem will not be solved, and to declare “war” on it is to declare war on human nature.

This is not to justify complacency in the face of vice and suffering. The point is rather to reframe our task. Our goal should not be to solve problems or to win metaphorical wars. Our goal should be to mitigate problems. We should not ask “What will stop drug abuse in our society?” but “What will reduce the problems associated with drug use in the most cost-effective manner?”

The war on drugs is not the answer to the latter question. Legalisation would reduce the social costs of the drug trade, for the reasons I have mentioned. It would greatly reduce crime and corruption, free up state resources, and restore respect for individual rights. Once we properly frame our task in confronting social problems, this will strike us, not as a defeatist appeal, but as the realistic and responsible approach.

Michael Huemer is professor of philosophy at the University of Colorado at Boulder

  1. I’ve held the same view for more than 40 years, yet have never used any prohibited substance and have never used tobacco. So why to I take the view that we should legally manage all drugs that are used for pleasure?
    As you stated, the 1920s US attempt to control alcohol failed. Without draconian punishments the Islamic efforts to impose alcohol control don’t work.
    Further, allowing the use of alcohol and nicotine, both addictive and potentially dangerous chemicals, whilst banning other similar substances is illogical.
    Finally, think how much tax revenue governments could raise if they managed and taxed all social chemicals as alcohol and tobacco.

  2. This article only takes one particular argument though – namely moral and individual autonomy. Though, I believe one can question the extent to which drug taking is an entirely private affair which does not affect other people – I believe, more or less, the account given here is basically sound.

    I should note that the other arguments in support of legalisation are:

    Utilitarian. Namely the reduction of the greatest harmful affects and the promotion of wellbeing: no more war on the underclass, no more throwing young people into jail for taking drugs. No more gang wars and ghetto communities. No more police time wasted in in non violent crimes, etc etc etc And of course, a lot of people enjoying a pleasurable activity to no real harm to anyone else.

    Consistency. Our current drug laws are inconsistent with the approaches we take with alcohol, tobacco and fatty foods. It seems self evident that if one were to try and ban these products, there would be an outcry and calls for government to stop being a nanny state. Yet, the distinction between these pleasures (McDonalds, Cigars, Wines) and Cannabis, MDMA and Methamphetamine is not one that is easy to make.

    Michael Faulkner.

  3. No known western instrument of law makes a drug or substance

    Clean language on drugs is important precisely because it is the human that is
    being regulated; and every time drugs are referred to as legal or illegal, that
    fact is forgotten.
    The Commentary on the 1971 UN Convention on Psychotropic Substances made this
    clear many years ago in saying with respect to penal provisions that:

    “article 22 of the [1971] Convention uses a general formula for defining
    actions to be subject to penal law, while article 36 [of the Single Convention]
    employs for that purpose in the first instance the enumerative method and only
    in a supplementary way a general formula” (United Nations, 1976, page

    What “actions” does Article 36 of the 1961 Single Convention
    enumerate? Article 36(1)(a) says:

    “Subject to [a state’s]constitutional limitations, each Party shall adopt
    such measures as will ensure that cultivation, production, manufacture,
    extraction, preparation, possession, offering, offering for sale, distribution,
    purchase, sale, delivery on any terms whatsoever, brokerage, dispatch, dispatch
    in transit, transport, importation and exportation of drugs contrary to the
    provisions of this Convention, and any other action which in the opinion of
    such Party may be contrary to the provisions of this Convention, shall be punishable
    offences when committed intentionally, and that serious offences shall be
    liable to adequate punishment particularly by imprisonment or other penalties
    of deprivation of liberty” (United Nations, 1961).

    But what are cultivation, production, manufacture, extraction, preparation,
    possession, offering, offering for sale, distribution, purchase, sale, delivery
    on any terms whatsoever, brokerage, dispatch, dispatch in transit, transport,
    importation and exportation? They are human actions with respect to property.
    This means that drug legislation regulates humans not drugs.

    Hence, both the UK Misuse of Drugs Act 1971 and the Controlled Substances Act
    1970 regulate persons who engage in enumerated activities re controlled drugs:
    importation, exportation, production or manufacture, supply or distribution, possession,

    Indeed, nowhere in any instrument of international or western domestic drug law
    is the phrase “illegal drugs” or “legal drugs” found; yet,
    many in the drug policy and law community continue to speak and think like they

  4. Debaters debate the two wars as if Nixon’s civil war on Woodstock Nation didn’t yet run amok. One needn’t travel to China to find indigenous cultures lacking human rights or to Cuba for political prisoners. America leads the world in percentile behind bars, thanks to ongoing persecution of hippies, radicals, and non-whites under banner of the war on drugs. If we’re all about spreading liberty abroad, then why mix the message at home? Peace on the home front would enhance credibility.

    The drug czar’s Rx for prison fodder costs dearly, as lives are flushed down expensive tubes. My shaman’s second opinion is that psychoactive plants are God’s gift. In God’s eyes, it’s all good (Gen.1:12). The administration claims it wants to reduce demand for cartel product, but extraditing Canadian seed vendor Marc Emery increases demand. Mr. Emery enables American farmers to steal cartel customers with superior domestic product.

    The constitutionality of the CSA (Controlled Substances Act of 1970) derives from an interstate commerce clause. This clause is invoked to finance organized crime, endanger homeland security, and throw good money after bad. Official policy is to eradicate, not tax, the number-one cash crop in the land. America rejected prohibition, but it’s back. Apparently, SWAT teams don’t need no stinking amendment.

    Nixon promised the Schafer Commission would support the criminalization of his enemies, but it didn’t. No matter, the witch-hunt was on. No amendments can assure due process under an anti-science law without due process itself. Psychology hailed the breakthrough potential of LSD, until the CSA halted all research. Marijuana has no medical use, period.

    The RFRA (Religious Freedom Restoration Act of 1993) allows Native American Church members to eat peyote, which functions like LSD. Americans shouldn’t need a specific church membership to obtain their birthright freedom of religion. Denial of entheogen sacrament to any American, for mediation of communion with his or her maker, precludes the free exercise of religious liberty.

    Freedom of speech presupposes freedom of thought. The Constitution doesn’t enumerate any governmental power to embargo diverse states of mind. How and when did government usurp this power to coerce conformity? The Mayflower sailed to escape coerced conformity. Legislators who would limit cognitive liberty lack jurisdiction.

    Common-law must hold that adults own their bodies. The Founding Fathers decreed that the right to the pursuit of happiness is inalienable. Socrates said to know your self. Lawmakers should not presume to thwart the intelligent design that molecular keys unlock spiritual doors. Persons who appreciate their own free choice of path in life should tolerate seekers’ self-exploration.

    Simple majorities in each house could put repeal of the CSA on the president’s desk. The books have ample law on them without the CSA. The usual caveats remain in effect. You are liable for damages when you screw up. Strong medicine requires prescription. Employees can be fired for poor job performance. No harm, no foul; and no excuse, either. Replace the war on drugs with a frugal, constitutional, science-based drugs policy.

  5. News & Events @EKU Libraries » Drug Decriminalization? - pingback on September 7, 2009 at 4:48 pm

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