In the first half of the twentieth century, America tried to deter her citizens from drinking alcohol by prohibiting its sale, manufacture and transportation. Here was a nation, famed for freedom and democracy, using the criminal law to curtail a wide and mainly voluntary practice. It failed spectacularly.
In the second half of the century, with the rest of the world in tow, this same country has run a huge program of prohibition on a range of drugs used for pleasure or solace. Millions still use such drugs, a relatively small proportion getting into tragic cycles of abuse.
In spite of evidence of great failure, general drugs prohibition has come to seem so natural to generations of people that the alternatives are contemplated only reluctantly and then almost invariably thoughtlessly dismissed.
Many prominent doctors, health workers, lawyers and politicians call for alternative strategies. But they reassure their audiences that they are working within a prohibition framework, complementing it, softening harsh consequences, and so on. Perhaps they are being realistic about the politics, concerned not to frighten a conservative majority, or perhaps they believe that prohibition is a basically sound policy. But people have sensitive antennae for any suggestions that seem to undermine the natural order of prohibition. Well-meaning proposals like injecting rooms and needle exchange schemes do not fit happily with the criminal law. They can be seen as first steps down a path leading to the dismantling of prohibition. For prohibitionists, the spread of civil disobedience of the drug laws is already viewed as losing ground in a just war. The suggestion of a deliberate shift in policy focus is rejected as defeatism.
Eventually, prohibition might get abandoned by weight of public opinion as the wretched consequences pile up. But this would not be as lasting and happy a sign of human progress as it could be. Better would be a clear understanding of what is wrong with the drug laws. Otherwise, future majorities might try them on again; perhaps with more advanced methods of repression. Perhaps other voluntary activities will be targeted (already there are warning signs with tobacco, may heaven help us). It may be that the American experiment with alcohol, for example, was not just impractical but fundamentally wrong. It may be that it is quite wrong for the state to turn its criminal law machinery onto its citizens' private habits.
There is a general assumption by prohibitionists that the drug laws were enacted in the first place on sound principle. But is this so? Prohibitionists may want to reduce the human suffering associated with drug use but are their good intentions disciplined by reason? Are they informed by principle? Are the principles good ones?
In what follows, I will describe and criticise the main arguments that can be offered for prohibition. In short, I attempt to show that prohibition is not some worthy social experiment gone wrong, but rather that it was never worthy in the first place. The analysis can be seen as a challenge to those of opposite persuasion, an encouragement to those of similar mind, and perhaps even a guide for the undecided.
Although I argue against prohibition, I give no recipes for what we should do in the short term; I do not urge any sudden and massive reversal of policy, for reasons sketched at the end. We took the wrong fork at a main junction and it will be no simple matter getting to a more promising destination. Or, a different image, we are like divers having foolishly gone into deep and dangerous waters, having to come up slowly to avoid the bends.
Let us begin by asking a basic question. What are the sorts of things it is appropriate for the criminal law to target? We can broadly characterise the criminal law as legislation concerned to prevent people doing or failing to do things on penalty of imprisonment or fine.
How wide should the criminal law be? Obviously it should not be so wide that it forbids any act not approved of by almost everybody nor so narrow that it allows any act except mass murder. What is solid middle ground?
We can safely take it that the primary object of the criminal law is to deter citizens from harming other citizens. The modern democratic state depends on such law. The idea of harm invoked here is well understood on the basis of a solid core of examples such as murder, assault, kidnap, robbery, blackmail, theft. The further away from these paradigms, the less is it certain that the criminal law in its 'deter harm to others' role is the appropriate rule to cover whatever it is we might consider outlawing. Which brings us to a question.
Should the laws concerned to deter citizens from harming others be the only restriction on the actions of individuals? Should we say that the state should not legislate to stop its citizens from doing whatever they wish as long they do not harm others?
This idea was made famous by the nineteenth century English political philosopher J.S. Mill. But, as he recognised, this 'harm to others' criterion must be supplemented in the practice of civilised society. We have many generally uncontroversial prohibitions on things which hardly constitute harm to others. There are many things, in a diverse society, that are discomforting to people - for example, extreme noisiness. Life would be rather unpleasant for almost everyone if there were no restrictions on the behaviour of people beyond cases of clear harm. There are many things towards which it is impossible to develop a live and let live attitude.
However, as sensitive as we might be to other people's behaviour, we are sensitive also about being subject to their sensitivities. It is easier to call for tolerance from others than to give it. But we can hardly call for something from our fellow citizens which we would be unprepared to give in return. How is a balance to be struck between wanting various freedoms for ourselves but not wanting those freedoms for others?
In broad view, we achieve this balance with a great invention. We make a distinction between a public sphere and a private sphere. In the public sphere we outlaw more than just what is harmful to others. For example, we have laws on various types of nuisance and offensiveness. The lines we ask others not to cross in public are the ones we are prepared not to cross. It is not hard to make a case for various behaviours in public to be proscribed even though these do not constitute real harm.
Of course there will always be difficult cases. Students of the history of ideas will know how Mill warned about the need to be robust in this regard in order not to strangle public life. But what people do in private, as long as it does not involve harming others, is a different matter. Here the lines we might draw for ourselves are not necessarily those to be imposed on others. The refuge for the citizen from the pressure of other citizens is privacy. What adults do in private need have less restriction than what they do in public.
The interesting question is whether there should be any restrictions at all on what a person does outside the public sphere? Should there be limits on private acts? On what, for example, people do in their living quarters?
Although the dichotomy of public and private is too simplistic to bear the weight of justifying all criminal provisions in large modern societies, it is nonetheless a good starting point from which to think about issues of individual freedom and state control. Of course, the actions of individuals viewed in isolation as affecting only themselves is often myopic. The accumulated effects of private action can become very large and dangerous (for example, burning black coal in private fireplaces). But if individual liberty is to mean anything, then the onus of proof is on those who demand to stop individuals from doing things which appear to be matters of voluntary personal habit.
It is important to keep in mind that being opposed to prohibition is not to be opposed to all laws (or prohibitions) against drugs. Prohibition, as we know it, means that it is illegal for any adult to possess any quantity of the drugs. In other words no one, no matter what the circumstances, can use any of these drugs. In particular, a person cannot legally use certain drugs in the privacy of his or her own living quarters. To believe that adults should be allowed to use whatever drugs they like on themselves in private is not to believe that they should be allowed to do this in public.
We will distinguish four lines of reasoning for putting strong limitations on private behaviour. These are mostly hidden strands confusedly interwoven in normal public advocacy. The first directly supports the idea that sane adults should be saved from themselves by the state. The second says that some things cannot be confined to the private sphere because third parties are harmed indirectly. The third argues that there is an educative role in the law and that prohibition is a central part of the curriculum. The fourth says that the nation itself can be damaged by too lax an attitude towards the individual. I will examine each of these four lines of reasoning in turn.
The first line of reasoning is the boldest. It considers that the state is quite justified in saving even sane adults from themselves. There are variations of this line.
One is that the state gets its authority from God to deal out earthly punishment to its citizen sinners. Such a view would involve theological argument highly unlikely to sound persuasive to modern ears.
Or, for those more committed to the separation between Church and State, the argument might be along the line of seeing the state as receiving its authority from the more mature elements of the community will, thus justifying the state to act as guardian to stop people from moral depravity or, if this is a different thing, to stop people doing harm to themselves.
Let's pass over the idea of private moral depravity and concentrate on the medically understandable and therefore less intractable notion of self-harm. It may be that those who would regard drug taking as morally questionable have as a reason that it causes such harm and that this is what makes it a moral depravity, there being, perhaps, a duty to care for oneself.
Let us ask about even the most self-harmful acts why these require action by the state under criminal provisions? What self-harmful acts should be proscribed? What is it about some harmful things that we would ban them while other things, which on any reckoning are very harmful, are not banned? Smoking cigarettes is very harmful - but we do not make this a criminal offence. Drinking a lot of alcohol is very harmful - but it is not a criminal offence. Eating a lot of fat and sugar, especially in a lifestyle not committed to exercise, is very harmful - but it is not a criminal offence. The list of such things is endless. The risks that people take to their own well-being are not generally subject to the criminal law. If the idea of protecting by force sane adults from themselves is to make some sense then we are owed detailed argument.
Are there not many uncontroversially good laws that exhibit our impulse to protect sane adults from themselves? Don't these laws make the world a better place? Our insistence on poison schedules, substance labelling, cooling-off periods in contracts, seat-belts, motorcycle helmets and countless other things are not all for protecting people from others. These are barriers and nets set up to protect us from ourselves. These things save limbs, they save lives, they save heartache. Citizens appreciate these laws. They see the good sense in them. They are a great part of the civilised state. So it could be said.
There is something persuasive in this. It is certainly at least this: we are seeing the benefits of having to go through a few channels, to take a few precautions, to read warnings, use certain safety gear and so on. But we are not all nodding simply to the idea that the state should outlaw what is bad for us. We who believe that what we do to ourselves is not the state's business can still appreciate the concern of others. It does not mean we appreciate or find reasonable the heavy-handed use of the state's police powers in matters of very personal habits. An argument to show that the iron hand of the state is justified to save people from themselves is still required, the showcase examples do not provide this argument.
If people do not want to be saved from themselves by others, then there had better be other justifications for prohibition. What is persuasive in having laws to protect us from ourselves has to do with a focus on desirable outcomes narrowly considered. 'Glad that I had to wear a helmet, that crash would have been a nasty one. Good on the law.' No, you wouldn't want to bag the law after such a close call. While you are so grateful. But you might get over that feeling when you realise the same political forces could stop you rock climbing, hang gliding, smoking cigarettes, having a wine with dinner. Then you might say: 'Thanks for your concern to protect me but on proper consideration, no thanks, not with police with handcuffs and wagons, jailers with keys and guns, prisons with high walls and towers.'
For those who think the helmet or safety-belt laws are more telling than I make out, let them consider that for a start they are laws about vehicles on public roads. They may be a model for public drug use (in streets, say) but are certainly not for prohibitions on private drug use (in private lodgings).
Furthermore, in respect to adults, these laws may be unprincipled ones. They may simply be edicts dictated by the powerful majority. They may solve a particular problem effectively, greatly assisted by the absence of resistance from many dissenting adults. In the case of the helmet laws, active dissenters are overwhelmed because of the ease of detection; mostly their desires are not strong enough to brave the relatively small penalties. In the case of seat-belts, the desire for the prohibited activity is mostly a reluctance to do anything as active as buckling up. This does not make these laws good and principled. Here the parliament acts as dictator, getting away with it easily because almost everybody has focussed on the good consequences.
Readers who think well of the seat-belt laws and such must remember that we are dealing here with the idea that the state should save adults from themselves. This is not the place to be objecting that these laws can be based on the protection of children or the economy of the public purse; such arguments are a different matter altogether.
Far from it being evident that sometimes we should forbid sane adults from harming themselves, such paternalism seems to involve an inconsistency. The most appropriate objects of paternalistic attention are people who are not fully responsible for their actions, whereas the most appropriate objects of punishment under the criminal law are people fully responsible for their actions. Prohibitionists appear to be confused about this. They seem to want it both ways.
Under the drug laws in Australia, for example, the user is criminally liable (for possession). Consider a case of a person so convicted. Prohibitionists like to stress how no one forces this person to use drugs, how he is still responsible for his condition despite his tough history. (We are not talking robbery or other crime here). Yet if he is not exactly the type of person in need of protection by the prohibition laws, who is?
The autonomy of his will is judged in one way to suit one purpose, namely to arrest, punish by imprisonment and make an example of him while, at the same time, his autonomy is judged in an opposite way better suited to another purpose, namely to hold him up as an example of a suitable case for protection.
To escape from this inconsistency in the idea that we convict the fully responsible in order to save the less than responsible is to abandon the idea about saving people from themselves.
The second approach for the prohibitionist is to claim that some activities cannot be safely confined to a private sphere. The public sphere, they will say, is not leak proof against such things. There are at least three specific concerns that prohibitionists might have under this heading:
(1) Those who need to be protected, like children, can be harmed indirectly. The very availability of drugs is a precondition for these getting into the hands of children.
(2) There can be very large investments of public resources when people damage themselves through drugs. Resources for the blameless needy, eg. the elderly poor, are diverted to help those who inflict harm on themselves. Here seems a case of private action having quite clear public consequences.
(3) The families and friends of drug abusers are badly affected. They seem to be harmed. Here, then, seems to be a case of harming others, which we agreed is a proper object of the criminal law.
Let's look at each of these three concerns in turn.
The first point is about drugs getting into the hands of children. There is concern that no regulations enabling adult access to drugs could sufficiently choke off access to children. However, it must be conceded that no large and diverse urban society can by legislative action totally protect children. It needs to be argued that these drugs are so peculiar that any use by some children must be avoided by total denial to everyone. We would not tolerate such reasoning in regard to countless other things that adults do or fail to do: smoking cigarettes, drinking a lot of alcohol, eating too much fat, taking excessive pills, carrying out tasks without safety gear and so on.
Under prohibition, children, especially older ones, do get their hands on drugs rather easily. An argument is needed to show that it would be worse for the relatively few children concerned under a system where these drugs are reliably composed, properly labelled, the details of the effects widely known. At present these things cannot happen. There is no public control on drug manufacture or distribution; it is largely in the hands of criminals and sociopaths.
An absence of general prohibition does not mean legalising public drug use. It does not mean allowing branding, attractive packaging, advertising (beyond text information in quiet but not particularly secret places). It does not mean the absence of other social and family pressures that operate in the care of children. It does not mean that the huge savings of resources gained from not having to police a general prohibition should not be used to protect children; for example by strict enforcement of laws forbidding trading with children, by education, by devotion to social work with families.
There could be as many restrictions as we like short of stopping a sane determined adult person from obtaining drugs without resort to crime (at least, not more resort than generally exists in respect to the usual human propensity for ill-gotten gains).
The practical task is to set the restrictions in such a way that leaves little room for a significant black market. Thriving black markets accessible to children are a great danger. If all adult demand were to be removed from the black market, then this market would virtually collapse.
Many schemes around the world to allow drug addicts to obtain supplies have been implicated in actually feeding the black market. In confused thinking these schemes have been criticised for being too liberal. But the trouble is not due to their liberality. Rather, they are usually too restrictive. While improving and mercifully saving particular lives (perhaps the desperately addicted), they operate in the fundamentally wrong background of general prohibition. They do not satisfy a very much wider public demand (of addicted, not so addicted and casual users). Proper release valves must be in place to allow adults to be adults in respect, at the very least, to their own minds and bodies.
The second point in the argument on private sphere leakage is the one about the diversion of resources. People using drugs become sick and are a big cost to the public. Public cost is most clearly the government's business. With finite resources, money is taken away from areas where it could be used to build schools, hospitals and other community resources. Those whose problems are not self-inflicted are thereby affected and indirectly harmed.
Considering the costs of upholding prohibition, this is simply an outrageous argument. The resources devoted to prohibition would build hundreds of schools and hospitals. And there seems to be no proper way of establishing the argument with respect to some activities and not others. Diseases caused by voluntary activities are quite widespread in developed countries. It is a mark of being civilised that we help people in spite of their predicaments being self-inflicted.
Rather than that we should use vast public resources to deal with drug addiction, what this 'diversion of resources' argument might more brutally conclude is that we should not spend public money at all on those who would destroy themselves, neither by treating them nor jailing them. Or, if we do spend public money on their treatment, we should implement a queuing system based on self-inflicted woes to the back. There is not much of an argument for prohibition here.
The third point in the leakage theory is about the harm to families. Too many families have been shattered by the tragic effects of their involvements with drugs. But before prohibitionists can use these tragedies to support their views, they must undermine the appearance that prohibition magnifies the evils visited upon families.
What reasonable brother would not prefer that his sister use drugs, if she would anyway, in as safe a manner as possible, free of criminal association? What reasonable mother would not be devastated by prohibition if her child died because there was no proper label on the dose or because other drug law breakers feared to summon help? What reasonable person would prefer their relatives to use heroin, mug people, rob houses, become prostitutes and be associated with every kind of sociopath and criminal in and out of prison than just use heroin?
Furthermore, the path of causation of harm to others here is too far from the sort that is clearly the business of the criminal law. There is pressure to outlaw all sorts of things that harm families. Where will we stop? How many families have been ruined by the gambling or alcoholic or adulterous father or mother? Should we ban all gambling? Should we introduce alcohol prohibition? Should we outlaw adultery? Should we literally police people's fat intakes to guard against the awful effect of heart attack on families? Should we at least try to do these things - and not be defeatist?
The reality is that the state, by the might of its armed police forces, cannot shield people from the results of their relatives' life-style decisions in a world full of possibilities, dangers and temptations. But, perhaps equally important, even if it could, there would still be a missing argument as to why it should, given the sort of society this would entail.
Let us now turn to the third main line of prohibitionist reasoning. This concerns the fear that allowing drug taking by sane adults (even in private) creates a bad example to children and impressionable citizens. The law must set the tone and give a message.
The idea seems to be that prohibition, with its terrible sanctions, sends a loud and clear message that drug taking is a bad thing and should be avoided. Perhaps there is the additional thought that since the adult world will not voluntarily provide the necessary example to the young, then it must be forced by law.
How effective a message is depends on many factors. An air-raid siren is a very loud communication, sign, warning, message. But how effective it is depends on how often it is a false alarm, the accuracy and scale of past bombings, the disadvantages of stopping activity to take shelter, whether it is seen as a challenge and so on.
Messages depend on interpretation. A youth does not get simple and effective instruction from the prohibition laws. He gets a complex of information. He would certainly notice that prohibition means a considerable section of society is disapproving of certain drugs. Also, he would notice that lots of people use prohibited drugs, albeit furtively, almost no one getting caught and punished. He might notice that voluntarily taking drugs has no victim in the way other crimes have victims. He would perceive certain inequities and hypocrisies: his elders being so tolerant of alcohol and nicotine and many other harmful substances that they even allow their branding, advertising and wide public use. He might even notice that he is not living in a society which trusts the adult to take full responsibility for what he does to himself.
In fact, a huge number of things would not escape him. Out of this soup, it should be hard to maintain the idea that there is a desirable and effective message from the prohibition laws. It is only possible to do so by ignoring the context. The people the messages are intended to target cannot so easily ignore it. They live the context.
If we really wanted the law to give sound and effective messages, it would be better to be clear. If prohibition is to be the order, then it should be enforced properly. And other harmful substances that people use for pleasure, for example alcohol, should be banned - no more hypocrisy to cloud the message. If this made people feel they lived in a police state, then so be it.
If prohibition were not to be the order, then the clarity and effectiveness of the law would be enhanced. Vast resources freed from administering general prohibition could be used to enforce any drug-related crime that might still exist. We understand that we can drink but not also drive, we can buy alcohol but not hold up the liquor store. We understand that adults can trade tobacco products with adults but not with children. We would have a similar understanding about any drug. These messages will be unclouded by hypocrisy.
The truth is that there are altogether better messages for discouraging drug abuse if we could get away from prohibition. Under prohibition, all sorts of information that could lessen the extreme effects of use has an uncertain value. It is uncomfortable to give specific safety advice about things which happen to be illegal. Imagine public notices to bank robbers with advice on how to safely blow up safes or how to lessen trauma to the bank staff during a hold-up. For some, this is a point of ridicule of the idea of legalisation. But it would only be a fair point if using drugs on oneself was as wrong as shooting and robbing people. It is simply not so.
Prohibitionists are in favour of offering general 'don't use at all' warnings in echo of the prohibition laws, thinking this will discourage. They fear that specific factual warning will encourage. 'Don't use ecstasy at all' is imagined to be a better bet than 'Ecstasy has the following effects ... best to avoid completely ... but, if you do use, ensure that you do not take more than ..., mix it with ...' The latter will contain useful advice on what not to do. Saying 'Don't use at all' is advice only in formal terms; it is not real advice. Detailed advice is not an encouragement to use in a world in which it will happen anyway. It is not defeatism. It is a real discouragement of all the things we can hope to be able to effectively discourage.
We come now to the fourth approach for defending prohibition. It goes like this: Our society has a certain type of cohesion, a sort of fabric, a way that defines it. It must maintain this for its very survival. Anything that tears at this fabric is to be resisted. There are higher things than individual liberty. There is a question about the harming of a nation. We must protect a way of life, for that is what defines us ...
One must ask about this view what this fabric or cohesion is supposed to be. Is it how we are, values and all? Is it how we were until something messed things up? Is it how we would like to be ?
Lets just take the first question. How, in fact, are we? Well, we are the sort of society that mostly lets people do what they want in private. We are the sort of society that mostly treats adults as the ultimate decision makers in matters pertaining to themselves. We are the sort of society that allows us, as long as we do not harm others, to do and say pretty much as we please. Should we protect this way of life? Surely yes. Indeed, did we not do just this in World War II against cruel enemies who would doubtless have taken away our way of life? Not much of an argument here for taking away the freedom for citizens to do what they will with their own bodies and lives.
On the other hand, it is true that we are the sort of society that sometimes treats adults as criminals even in matters of personal habits or lifestyles. Should we keep on doing this? Or is this bit of the fabric not so good? What exactly needs protecting? Shall we use the criminal law? And exactly how will we do this? Will it be directed at drug users? Or just at ensuring others do not lure them, deceive them, force them? What is the proper object of the criminal law?
But now notice that we are back to the fundamental questions with which we started. This third defence of prohibition seems simply to beg the questions we have been dealing with all along. The 'fabric of society' defence of prohibition seems an empty barrel of an argument. It bluffs and fudges the real issues.
Is this quite a fair analysis? Suppose drug addiction became an even bigger problem than gambling and drinking in respect to numbers and incapacities. The great scale of the problem would make for an obviously sick nation, not just a nation with many sick people in it. It would affect our whole national life. People would be too drugged to work, to defend the country, you name it. Does this spectre bolster the content and sharpen the focus of this 'fabric' argument for prohibition?
How so? It certainly considers an undesirable thing, namely a nation full of self-destructives. But what is the argument that the criminal law is a good weapon to use to avoid it? If large numbers of people wanted to rush to the coast and jump off cliffs, this could be fairly catastrophic for the nation. Would the criminal law be part of the answer? The police, backed by the army perhaps, blockading the coast, capturing and prosecuting people? It's absurd. If the number of people bent on self-destruction is large enough to destroy the nation, then there is something too wrong for the criminal law to fix. It is not obvious that prohibition is part of the answer. If everything else short of prohibition does not work to the extent of 'saving the nation', then what good is prohibition going to be? If the criminal law is 'needed' to stop adults destroying themselves, thereby 'saving the nation' then what has been saved? What exactly? What is the before and after here?
In spite of all the deterrents, large numbers of people, especially young people, continue to use banned drugs. Most of these people do monitor costs and benefits, are increasingly solicitous of their health and are influenced by information and good counsel.
A very important small proportion get into serious and even tragic difficulties. The majority of hard cases are from the most poorly resourced sections of society. Little wonder. Quite apart from prohibition, they will suffer the most as they do with many lifestyle activities like gambling, drinking alcohol and smoking cigarettes. Crude prohibition in any of these fields just adds a further layer of trouble which especially affects them.
Prohibition distorts the natural economics of demand, open to wise government regulation to stop one person (the manufacturer or dealer) from harming another (the user) with unknown quantities and qualities. The market is run by totally unaccountable people. The drugs are unregulated in respect to such simple things as their actual constitution.
Many poor users spend all their time trying to get their supplies, having to mix with criminals and other addicts. They get little chance of other balancing things in their lives. Prohibition ensures their alienation. They mix with their own kind against the prohibiting rest of society. Whereas it may be a good idea to isolate and alienate bank robbers, it is almost certainly not a good idea to isolate people who use drugs on their own bodies. They are our children, our brothers and sisters, our parents, our cousins, friends, work colleagues, neighbours.
Repressive regimes around the world cause great weaknesses in their societies (as has been seen in recent history). We should not be surprised that repressive elements, namely ham-fisted prohibitions, in otherwise reasonably successful modern democracies should have terrible social consequences.
Some will be disappointed that I have not offered specific recipes for what should be done in the short term. I have resisted a great temptation here in order not to cloud the main argument. Better than sitting in armchairs and making far reaching blueprints about practical matters, we need to try a few things in a direction opposite to the policy of prohibition. Prohibition is probably best dismantled gradually. We need to learn from experience. Alternatives worth trying are regularly put forward by intelligent and knowledgeable people. Lets start taking some of them up.
Given the poor foundation in reason for prohibition we should have confidence in a broad opposite direction and not suppose that difficulties that arise are proof of the folly of an alternative direction. Not only does it take time to adjust to new ways, these ways themselves need to be adjusted in the light of how they work. Just as free speech and electoral participation are slowly acquired habits, constantly being adjusted, so too would be the way of allowing adults to be responsible to themselves in what does not harm others.