Drug policy and the liberal self

John Stuart Mill's harm principle is now in a peculiar predicament. Mill famously wrote that "the only purpose for which power can be rightfully exercised over any member of a civilized community, against his will, is to prevent harm to others. His own good, either physical or moral, is not a sufficient warrant."1 The principle is very widely believed: each year at least one of my students recites the principle as if it were part of the Constitution, and everyone else in the room nods with approval. Yet our practices are inconsistent with the principle, and very few people are troubled by this. Common sense seems to dictate that we ought not to completely legalize heroin, or gambling, or prostitution, or gladiatorial fights to the death. Thus Mill has simultaneously triumphed and failed. Unless the liberal can explain what limits the scope of the harm principle in these cases, the principle itself loses its force. A principle is weak if it must always contain the vague proviso "except sometimes." Our present regime is subject to a powerful Millean critique, but this critique cannot be persuasive until the bounds of the principle are better mapped. One potent area of application is American drug policy, the biggest policy disaster since Vietnam.2 The United States now spends about $35 billion a year to control the traffic in illegal drugs, compared with $10 billion in the mid-1980s.3 The prohibition has called vast criminal enterprises into existence. In 1980, about 31,000 people were incarcerated for drug offenses; that population has now exploded to well over 400,000.4 Those who are imprisoned are disproportionately black.5 Crime and poverty in minority communities have been exacerbated by the illegality of drugs, while drug convictions have disproportionately deprived blacks of access to health and housing benefits, college aid, and the right to vote.6 The impetus to control an activity that often produces no complaining witnesses erodes privacy protections and inures people to the idea that the authorities have the right to police their daily recreations.7 Drug users themselves, the population that the policy purports to protect, are exposed to dangers of overdose and disease that would vanish if the drugs were legalized. These staggering costs have produced little benefit. The prices of the most dangerous drugs, heroin and cocaine, have fallen steadily in recent years. Consumption among hardcore users has not substantially declined.8 The time is ripe for new visions of policy. Yet the literature on drug policy is deeply unsatisfactory. While the law is animated by a crude authoritarianism, the scholars oscillate between crude utilitarianism and crude libertarianism. What is needed is a more sophisticated rights-based philosophy than has heretofore been offered-one that recognizes the rights of the majority of drug users who are prudent and responsible, while also recognizing the appropriateness of even paternalistic intervention in the lives of those who have been or may be destroyed by an encounter with drugs. The best justification for drug regulation is the protection of the powers of adult citizens to freely govern themselves-powers that can be destroyed by drug abuse. Yet given this justification, much of contemporary policy is perverse, because it attacks those who are in no danger of the disintegration that the law fears. The shrewdest critics of present policy, Mark Kleiman, Robert J. MacCoun, and Peter Reuter, criticize it from an economic perspective. They aspire to minimize the combined costs of drug abuse and drug law enforcement.9 If their recommendations were adopted, drug policy would be less mindlessly cruel and more effective than it is today. Yet one of the most troubling aspects of contemporary drug policy, its invasion of individual liberties, is either absent from their analysis, or figures in it only as diminished utility, to be weighed against the utilities of others. …