Legalize This! The Case For Decriminalizing Drugs, by Douglas N. Husak

Ruins of the Drug War

Mises Review 8, No. 4 (Winter 2002)

By “drugs” in the following I mean substances such as cocaine and heroin. He claims not to be a libertarian; he speaks disparagingly of the libertarian position “that each of us has the right to put anything we like into our bodies” (p. 22). I do not think that Husak has rightly characterized the libertarian view; what libertarian would hold that we have the right to use a drug “that turns us into homicidal maniacs” just “because these effects occur as a result of putting it into our bodies” (p. 22)?

In fact, the libertarian view is identical to the position that Husak defends. Why, he asks, should people be punished for using drugs? To punish someone is to impose a severe disability on him; and justice requires that punishment be imposed only on someone who violates rights. The mere fact, if it is one, that drug use leads to bad social consequences does not suffice.

Husak illustrates his argument with a telling example: “Does anyone believe that individuals should be punished for something simply because the failure to do so would cause an increase in the behavior for which they are punished? This rationale fails to provide the personal justification for punishment that is needed. This is not our reason to criminalize acts like murder and rape. No one would say that we should punish such acts simply because the failure to do so might lead others to commit rape and murder” (p. 175).

To punish people simply because their acts encourage others to act in a way deemed undesirable is to use people as means, in a morally unacceptable way. If the state can imprison someone because his drug use sets a bad example to children, or helps to maintain a market in drugs associated with violent crime, is it not failing to treat the drug user as an end in himself? (Of course, much of the violent crime in the drug market stems from the fact that drug sales are illegal; but Husak is concerned in his argument only about punishment for drug use.)

“Away with such Kantian nonsense,” a supporter of the consequentialist position may reply. “What we need are hard facts. If it turns out that the benefits of drug prohibition exceed its costs, we have exactly the justification needed to make the use of drugs criminal. Speculative and unprovable moral theories should not bar our way.”

Husak replies to this objection in what I regard as the most brilliant passage of his book. In it, he makes an important contribution to moral theory that in scope goes far beyond the drug issue. Husak points out that our imagined objector cannot escape moral theory of the sort he dismisses as speculative. “Critics of prohibition denigrate principles of justice at their peril, for a harm-reduction approach is no less dependent on moral evaluation than the alternative they reject” (p. 177).

Our author makes good his claim with a neglected but obvious truth. How are we supposed to balance good and bad consequences, without using moral theory? “We could not hope to balance incommensurables unless we were willing to judge that some outcomes were more valuable than others. These judgments of value are moral judgments” (p. 177).

The drug prohibitionist may elect at this point to bite the bullet. He may contend that drug use not only has bad effects but also is in itself wrong, in a way that justifies punishment. But why should we accept this? The use of alcohol has similar effects to those found in drug use, yet no one proposes making the mere act of drinking a crime.

Husak has backed the drug prohibitionist into a corner. The supporter of prohibition must locate an important difference between alcohol (or tobacco) and drugs the use of which he wishes to ban. Husak has little difficulty in showing that a recent attempt by the distinguished criminologist James Q. Wilson to do this fails completely. Wilson claims that use of cocaine “alters the soul,” but smoking does not. Unfortunately, Wilson fails to explain his contention in a way that can be rationally assessed. Unless he or some other prohibitionist can do so, the case for banning the use of drugs lies in ruins.