On the decriminalization of drugs

In his lively and provocative paper, "Four Points About Drug Decriminalization," (1) Douglas Husak advances two main claims: first, that none of the standard arguments for criminalizing drugs are any good, and, second, that there is little evidence that drug laws deter drug use. In these comments, I will not take up the second claim (though I must admit to some skepticism), but I do want to take issue with the first. My strategy will be, first, to sketch three pro-criminalization arguments that I take to have real weight; second, to respond to an objection of Husak's that, if sound, would tell against all three of my arguments; and, third, to confront the related objection that we cannot consistently support the criminalization of narcotics without also supporting the criminalization of alcohol. I Three Arguments for Criminalization I begin with two ritual disclaimers. When I say that there is a good case for continuing to attach criminal penalties to the use of narcotics, I do not mean that that case extends to any particular schedule of penalties or to any special list of drugs. I am sure that many drug sentences, both past and present, are far too harsh. I am also willing to concede that the harms and bads associated with some drugs--marijuana is the obvious example--may not be significant enough to justify attaching even minor penalties to their use. I do think, however, that the harms and bads associated with many other drugs are sufficiently weighty to justify their continued criminalization. The drugs of which I take this to be true include heroin, cocaine, methamphetamine, LSD, and ecstasy, among others. What, then, are the main arguments for criminalizing these drugs? They are, I think, just the familiar ones: drug users harm themselves, they harm others, and they do not live good lives. At the risk of sounding like an eighth-grade teacher, or a drug czar, I will briefly sketch each argument. (1) The paternalistic argument The nature of the harms that drug users risk is of course a function of the drugs they use. Thus, to borrow a point from Peter de Marneffe, heroin harms the user by sapping his motivation and initiative. (2) Also, because heroin is addictive, using it now forecloses the option of comfortably not using it later. By contrast, cocaine and methamphetamine do not have only these effects (though "crack" is by all accounts highly addictive), but their regular use also significantly increases the risk of heart attack and stroke. Furthermore, by drastically enhancing self-confidence, aggression, and libido, these drugs elicit behavior that predictably culminates in high-speed collisions, shootouts in parking lots, and destroyed immune systems. Other drugs have still other destructive effects: LSD can trigger lasting psychosis; ecstasy harms the brain, impairs the memory, and, taken with alcohol, damages the liver; and so on. Thus, one obvious reason to continue to criminalize these drugs is simply that many persons deterred by the law from using them will thereby be spared serious injury. (2) The protective argument Just as drug use can harm the user, so, too, can it harm others. Drug use harms strangers by involving them in the collisions, shootouts, and other catastrophes to which the impaired and overly aggressive are prone. It harms family members by depriving them of the steady companionship and income of their addicted partners. It harms fetuses by exposing them to a toxic and permanently damaging prenatal environment. It harms children by subjecting them to the neglect and abuse of their drug-addled parents. Thus, a second obvious reason to continue criminalizng drugs is that many persons deterred by the law from using drugs will thereby be prevented from harming others. (3) The perfectionist argument Just as there is broad agreement about what constitutes harm, so, too, is there broad agreement about many factors determining both good and bad lives. …