Against the legalization of heroin

Criminal Justice Ethics

Volumn 22, Issue 1, 2003, Pages 34-40

  de Marneffe, Peter ^a  

^a ARIZONA STATE UNIVERSITY   (United States)

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EID: 79959766622     PISSN: 0731129X     EISSN: 19375948     Source Type: Journal    
DOI: 10.1080/0731129X.2003.9992139     Document Type: Article

References (29)

1. I intend my argument here to apply also to morphine, heroin's less popular sibling, with the exception mentioned in note 8, below.
2. Acceptance of this argument, or something like it, provides the most plausible explanation, in my view, of why leaders of poor urban communities typically support drug laws, a fact that casts doubt on the charge that such laws are racist.
3. See J. S. Mill, On Liberty, ed. Elizabeth Rapaport, Indianapolis: Hackett Publishing Co., 1978, p. 9.
4. See Ronald Dworkin, Liberalism, A Matter of Principle, Cambridge, MA: Harvard University Press, 1985, p. 191.
5. Some may find it unnatural to say that a person is burdened by the absence of a coercive policy, but since I think that individuals would be burdened by the repeal of some coercive policies, like laws against theft, I think it makes sense to say that individuals can be burdened by the absence of a policy.
6. In allowing penalties for possession I do not directly disagree with the claim that use should not be criminalized, which Douglas Husak argues (Four Points About Drug Decriminalization, Criminal Justice Ethics, 22 [this issue, 2003], pp. 3-11).
7. The goal of the drug prohibition I defend here is not to reduce use per se, but to reduce certain kinds of abuse by reducing drug availability and by making drug use more burdensome legally and socially. If drug abuse would be substantially reduced in these ways, by a gentle system of penalties for possession combined with stiffer penalties for manufacture and sale, I would defend penalties for possession on this ground. By a gentle system of penalties, I mean one that gives everyone convicted the probationary opportunity to avoid imprisonment by accepting some form of treatment, per-forming community service, or both. For some considerations that weigh against legalizing possession completely,
8. James Q. Wilson, Heroin, Thinking About Crime, New York: Basic Books, 1975, pp. 144-52.
9. See, for example, James Q. Wilson & Richard J. Herrnstein, Crime and Human Nature, New York: Simon and Schuster, 1985, p. 62.
10. Another objection to current policy is that it makes illegal the medical use of heroin for the treatment of pain. This objection is compelling only if heroin is more effective than morphine. If not, then the current policy of permitting the medical manufacture, sale, and possession of morphine suffices to meet the medical needs of patients. If heroin is more effective, then it should be treated by the law in the same way morphine is now. For an expression of doubt about the greater effectiveness of heroin
11. John Kaplan, The Hardest Drug, Chicago: The University of Chicago Press, 1983, p. 6.
12. Three facts are commonly cited as evidence that heroin use varies in proportion to availability, which, it is assumed, drug prohibition reduces to some degree. First, the percentage of American troops who used heroin in Vietnam, where it was easily available, is much higher than the percentage of the same group who used the drug before and after their service there. Second, opiate use is much higher among medical professionals, who have much greater access to opiates, than it is in the general population. Third, alcohol consumption fell substantially during Prohibition. All three arguments are endorsed
13. Erich Goode, Drugs in American Society, 4th ed., New York: McGraw Hill, Inc., 1993, pp. 375-76.
14. Kaplan, The Hardest Drug, p. 113, for an endorsement of the first two arguments.
15. It is sometimes said that since heroin is already available in poor urban communities, drug laws do little to reduce drug consumption there, but this reasoning is flawed in at least three ways. First, while heroin is relatively available in some poor urban communities, it is not nearly as safe, plentiful, and affordable as it would be if sold legally along with liquor or candy at the corner store
16. Kaplan, The Hardest Drug, pp. 123-24
17. Second, although heroin is now quite available in some poor urban communities, it is much less available in others
18. id., p. 88
19. Third, even in those poor communities in which heroin is now quite available, the expense, unreliability, danger, and inconvenience of supporting a habit remain a strong incentive to stop using it
20. id., p. 125.
21. Note that in both cases the relevant burden is the greater risk of loss under a policy of legalization, and not the actual loss that results. If the relevant comparison were of the actual losses from prohibition and legalization, then drug laws would surely violate the burdens principle because, to make just one comparison, death from drug-related gang violence is worse than inadequate parenting.
22. Wilson, "Heroin," p. 135.
23. Mill, On Liberty, p. 9.
24. Note that I do not say that the burdens principle is violated if the reasons someone has to want the government not to limit her liberty outweigh every reason she has to want it to do so. I think this claim about reasons holds for many recreational drug users, but the burdens principle is violated only if their reasons to want drugs to be legal decisively outweigh everyone's reasons to want it to be illegal, a claim that I believe to be false.
25. Perhaps it is worth observing here that while alcohol prohibition might be permitted by the burdens principle, the argument I have given for heroin laws does not alone warrant the conclusion that it is. This is because the legal prohibition of a drug is likely to be far more effective in reducing abuse where its use is already generally believed wrong. This is now the case with heroin but not with alcohol. Although the (greater) deterrent benefits of reducing heroin abuse might now be sufficient to justify continuing heroin prohibition, the (lesser) benefits of reducing problem drinking might not be sufficient to justify a return to alcohol prohibition, even if drinking is equally harmful. The reason I remain neutral on the justifiability of alcohol prohibition is that I suspect that problem drinking is more harmful on average than heroin abuse is, especially to others.
26. John Rawls, A Theory of Justice, Cambridge, MA: Harvard University Press, 1971, pp. 11-15.
27. John Rawls, Political Liberalism, New York: Columbia University Press, 1993, pp. 223-24.
28. For another argument for drug prohibition that would be supported by Rawls's liberal political values on different empirical assumptions
29. Samuel Freeman, "Liberalism, Inalienability, and Rights of Drug Use," in Pablo De Greiff, ed., Drugs and the Limits of Liberalism, Ithaca: Cornell University Press, 1999, esp. pp.128-30.