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Drugs & Harm
Frederik Kaufman analyses the illegality of drugs.
The state puts enormous resources into curbing the sale, distribution, and use of certain drugs. Why? The obvious answer is to protect citizens from harm: harm to self, and harm to others. Consider first harm to self. Illegal drug users often harm themselves, even though that’s rarely what they intend. They risk violence, unsafe conditions, overdoses, illness, adulterated drugs, arrest, long life-destroying prison sentences, poverty, social censure, unemployment, and more. Illegal drug use also risks, and produces, harms to others: it supports gangs, gun use, graft, corruption, criminality – which all cause social instability. It imposes high costs on the health care system, diverts public dollars to prisons, therapy, clinics, law enforcement, with trial after trial overloading the judicial system, not to mention the broken relationships and attendant family problems. These are all significant social costs (although it also follows that a lot of decent jobs depend on illegal drug use). However, these risks and harms are mostly consequences of the drugs in question being illegal, so they cannot themselves be used as reasons for why drugs should be illegal. Therefore, when we ask whether the state should prohibit drugs because of risks of harm to self and others, we must focus carefully on the dangers posed by the drugs themselves, not on the dangers to self and others posed by the illegality of drug use.
Harms to Self
How inherently dangerous are illegal drugs to drug users themselves? Here we need some clinical facts.
Even under ideal conditions of purity and proper dosages, for all drugs there is no doubt a range of harmfulness from minimal to severe. But plenty of risky things and activities are legal, such as eating fast food every day, mountain climbing, guns, chainsaws, and of course, smoking tobacco and drinking alcohol. So even if the state can legitimately prohibit people from running the risk of serious self-induced harms on paternalistic grounds, the risks to the users of at least some illegal drugs are commensurate with many legal activities, so there is a double standard there.
Once we factor out risks consequent on their illegality, the inherent risks of habitual drug use seem to be roughly these: drugs can alter one’s character, sap motivation, cause one to ignore one’s health, spend money foolishly and self-indulgently, become self-centered, unreliable, alienated from friends and family, socially withdrawn, and indifferent to the community at large and to one’s civic obligations. None of that is good; but if those are the main self-induced harms frequent drug users risk (they’re not guaranteed), are those good grounds for putting someone in jail?
Using state power to arrest and punish people for illegal drug use is the issue to focus on, I think. We don’t punish people just for being self-centered, sullen, feckless, lazy, unreliable, marginal, but otherwise law-abiding; so how can the state justify punishing people merely for choosing to run the risk of becoming like that by using illegal drugs? (See Douglas Husak, Legalize This! The Case for Decriminalizing Drugs, 2002.)
Surrealist images by Paul Gregory
Addiction & Choice
Here someone might object: even if it is absurd to think that ‘losers’ should be punished by the state, drug users don’t choose to run the risks that their drugs present. They are addicted (which is another self-induced harm). Since insofar as they are addicted they do not assent to the risks they run, the state is justified in prohibiting drugs, to protect habitual drug users from themselves.
This justification for state action applies only to addictive drugs, and not all illegal drugs are regarded as addictive. But still, one might argue, prohibiting those drugs that are deemed addictive is acceptably paternalistic. Paternalism is objectionable only when it directly opposes what someone wants, not when it helps them to achieve it. And given that no one in their right mind wants to become a loser, by prohibiting addictive drugs, the state is helping people to avoid something nobody sane could plausibly want. This mild paternalism is similar to the paternalism of seatbelt laws: no one wants to be injured in a car crash, so by legally requiring seatbelts, the state helps people to avoid a condition they do not want.
But is it true that addicts do not choose to run the risks they do? They are not zombie-like, since acquiring drugs requires rational planning. Nevertheless, we might deny that they act completely (or adequately) voluntarily, since it is natural to think that voluntary action requires an ability to choose otherwise. Drug addicts are by definition not capable of abstaining from drug use, at least not without heroic effort. Their recurring strong desire to use drugs puts them under a duress which impairs their ability to choose. They cannot do otherwise in any meaningful sense. This is possibly how most people understand drug addiction – addicts included.
However, ‘the ability to do otherwise’ might not be the best way to understand voluntary action. A different way to see it is that we act voluntarily if we endorse the desires that motivate us to act. That is, we act voluntarily when we are not only moved by our desires, but when we approve of, accept, or have some positive attitude about those desires. This requires a reflective critical distance on ourselves: we are not like the dog that wants to go out or wants to be fed, being moved by whatever desire happens to be present. One reason we have greater psychological complexity than dogs is because we have attitudes about our desires.
What do addicts think about their own desire to use drugs? They sometimes say that they cannot do as they want; that they wish they could stop using; that they are powerless over seemingly alien desires which repeatedly assail and overwhelm them, and so on. Should we believe what they say about themselves? Given the pervasive social stigma against what they do, the widespread assumption that addiction is a disease over which one lacks control, and other possible layers of self-deception, shame, and feelings of inadequacy, we should at least be skeptical of what drug users say about themselves. It is not that they lie (though that could also be true). Rather, addicted drug users will likely often see themselves as others see them – namely, as having compromised their capacity to act voluntarily. They are asking us to believe (and probably believe themselves) that when it comes to their drug use, they cannot do as they say they want, nor, more importantly, as they say they ought. They may agree that they ought to stop, but maintain that they cannot.
Maybe many habitual drug users really do wish they didn’t want to use drugs; maybe they repeatedly find themselves doing what they genuinely don’t want to do. But it’s also possible that some drug users are perfectly fine with their desire to use drugs. They not only want to use drugs, but they endorse their desire to do so. Those who do endorse their desire to use drugs have no internal conflict; they are doing precisely as they want, and so are acting voluntarily.
It does seem strange to talk about habitual drug users acting voluntarily, since we often think that even if they wanted to stop, they couldn’t. That some of them may endorse their desire to use drugs seems beside the point, if in fact they cannot stop. But consider John Locke’s famous thought experiment on voluntary action: a sleeping man is carried into a room. Upon waking he sees in the room a friend with whom he wishes to talk. Unbeknownst to him, however, someone has locked the door. It is clear that the man remains voluntarily, even though in fact he cannot leave. Something similar could hold for habitual drug users who endorse their desire to use drugs. Whether or not they could stop is not the issue: the issue is whether they are acting on their own desires, and hence voluntarily.
Again someone might disagree, arguing that this drug user’s positive attitude about his drug use is a consequence of the drug use: he endorses his desire to use drugs because he uses drugs. This idea is sometimes colloquially expressed by saying that his attitude is the drug speaking, not the person. So even if the person does as he wants, those are not his true desires.
But this line of reasoning begs the question. We cannot assume that drug users who endorse their desire to use drugs cannot be expressing a genuine desire, and hence are really not acting voluntarily. That would be like saying that the man’s desire to stay in the room in Locke’s story cannot really be his own because he cannot get out. It is true that he cannot get out; but that fact alone does not mean that his desire to stay cannot really be his own, and that therefore he does not act voluntarily.
In Locke’s story we agree that the man’s endorsement of his desire to stay in the room is really his own. At the same time we might deny that the drug user’s endorsement of his desire to use drugs is really his own. The risk of harm seems to be the crucial difference between the two cases. We cannot understand the drug user’s willingness to run the risks involved. To explain actions that are otherwise imprudent, short-sighted, or even unintelligible, we conclude that he cannot avoid doing them, or that he is somehow coerced by the drug into doing them. Habitual drug users may also tell themselves a similar story, since they sometimes say that they too are mystified by what they do. But there is a far simpler explanation: the drug user really does want to use drugs, and he acts voluntarily, despite the risks he faces.
Why do drug users want to use drugs?
A lot could be said here, but to me the most straightforward explanation is pleasure. This at least makes running the risks intelligible – though whether they are worth it is of course another matter. But making bad decisions is comprehensible, and very different from trying to understand someone who repeatedly does something they say they don’t want to do.
More problematic is the claim that some drug users use drugs because they don’t want to suffer from not using them: they fear the withdrawal symptoms. Again, this applies only to drugs regarded as addictive. Here too we need some clinical facts: just how bad are the withdrawal symptoms?
No doubt they vary from person to person and drug to drug – but popular culture portrays them as agonizing, and drug users will believe that no less than the rest of us. So habitual drug users can come to dread the awful suffering they think they will undergo if they do not use. For the withdrawal-symptom-avoider the anticipated suffering of not using drugs is taken to be worse than running the risks of continuing to use them, so in that sense it is a rational calculation. Since the risks are considerable – all the more so because of the illegality of drugs – some drug users apparently have an intense fear of what they will experience if they try to stop.
If there really are drug users motivated primarily by fear of great suffering if they stop using drugs, are their fears warranted? If what they fear is absurdly magnified by their fear, then they hold false beliefs about what they fear. Such unrealistic fears could be allayed by counseling, even by prescription drugs under medical supervision. But I think that we should remain skeptical that many drug users are like this. Moreover, don’t drug users who say they use drugs because they fear not using them, typically use more drugs than strictly necessary to avert whatever discomfort they think they will experience from not using them? If they do – as seems likely – then we return to the simpler explanation for habitual drug use: pleasure.
Harms to Others
So far we’ve focused on the risks habitual drug users run in harming themselves. What about the risks of harm to others caused by drug use?
Here one might invoke John Stuart Mill’s Harm Principle to support coercive state action to keep certain drugs illegal. Mill famously argued 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” (On Liberty, 1859). This is well and good. But again, risks of harm to others that are purely contingent on illegality (and so on coercive state power) cannot be used as reasons for why drugs should be illegal. However, those risks are good reasons for why one morally ought not to use those drugs, since illegal drug use does impose risks of harm on others. True, the risks stem from the illegality of the drugs in the first place, but that’s beside the point concerning the morality of using those drugs. The converse is also true: if a legal activity exposed others to significant risks, it would still be immoral to engage in that activity, despite its legality. Some forms of environmental pollution, for example, are like that. So yes, it is immoral to use illegal drugs, because their very illegality imposes significant risks of harms to others. But (as I have insisted), since the harms to others posed by using illegal drugs are mostly consequent on their illegality, those harms cannot be reasons for illegality in the first place – even though they are nevertheless good reasons for why, morally, one ought not to use illegal drugs.
The Legitimate Use of State Power
Since political legitimacy depends on the consent of the governed, our consent is needed for coercive state power to be justified. This implies that harms or risks of harm are not in themselves sufficient to justify coercive state action. It is after all rational for me to consent to some risks. For example, I consent to the risks of driving, and by voting I authorize the state to regulate driving in a way that minimizes those risks. Coercive state power in regulating driving by issuing licenses, arresting drunk drivers, setting safety standards and so forth, is justified because I hav e consented to the state using that power. I accept the remaining risks associated with driving because I gain by driving. Should we consent to the risks we are exposed to because the state makes drugs illegal?
The issue here is coercive punitive action by the state, not whether the state should seek to cultivate good citizens by other means. For our consent to be reasonable here, the state has to show why the risks created by the illegality itself are justified.
Here’s another way to put the question: Should I consent to the risks of harm to myself caused by state efforts to arrest and jail people because they risk becoming shiftless, lazy, disengaged, and unproductive? As things now stand, I run an increased risk of being robbed or shot because of gang violence related to illegal drug trafficking; I run the risk posed by used needles lying around because drug users do not have safe injections sites; I face higher taxes because of the state’s strenuous efforts to find drugs and punish drug users. Those same tax dollars could be used to promote genuine social goods such as healthcare, job training, and education. So should I consent to less well-being because of those risks to harm from drugs?
If I imposed diminished well-being on you for no good reason, you would protest. It is no different if the state imposes it on us for no good reason. ‘Impose’ is the wrong word, since these side-effects on our well-being are not themselves what is intended. But if there is no good reason for us to consent to the risks related to the illegality of drugs, then the use of coercive state power here is unjust. Conversely, if there is a good reason for illegality, what is it? Without such a reason, the state is forcing us to run risks created by its own actions without a good explanation of why we should consent to this. I am not convinced that I should consent to diminished well-being just so the state can use its coercive power to seek out and punish people for risking not being good citizens.
© Prof. Frederik Kaufman 2020
Frederik Kaufman is Professor of Philosophy in the Dept of Philosophy & Religion at Ithaca College, NY.