The forgotten war!

Should recreational drug use be criminalised?

Considers the views of the philosopher Douglas Husak on the justice of drug laws in America.

‘I think the sheer scale of incarceration of drug users makes prohibition the worst injustice perpetrated by our system of criminal law in the 20th century. Only the institution of slavery and the despicable treatment of the Native Americans are greater injustices in the United States.’ Douglas Husak

Douglas Husak combines hard fact and rigorous moral reasoning in his well-argued analysis of the drug law debate in his book, ‘Legalize This! The case for decriminalising drugs.’ We have summarised his arguments – without offering our own view – to help the reader decide how they feel about the central question of the justice of drug laws. Whilst Husak argues about the situation in the US, much of what is said is relevant to the UK.

Husak points out that we need to ask the right question when looking at drug policy. He emphasises that the onus has always been on those who want to change drug laws to justify why there should be changes. In fact, the onus should be on those who support current policy to justify their position. This rarely happens.

The critical question to be answered is: should recreational drug use be criminalised? Husak analyses the reasons put forward by prohibitionists to justify why people should be punished for recreational drug use.

The arguments for criminalising recreational drug use

The most pervasive argument is that drug users should be punished to protect children. However, Husak argues that the state is not committed to child welfare generally, since millions live in poverty and lack health insurance, and schools are under-funded, etc.

Moreover, concern for the welfare of children vanishes when a child begins to use drugs – there is a growing trend in the US to prosecute and sentence children as if they were adults. The concern that children remain drug-free disappears when doctors purport to detect a syndrome that requires the use of drugs, e.g. about five million children in the US take Ritalin, an amphetamine-like stimulant, used to treat disorders such as Attention Deficit Hyperactivity Disorder (ADHD).

Husak also asks how punishing adults protects children? Adults are not instigating the behaviour we are trying to prevent (i.e. drug use)? The myth of the pusher at the school gates has been wholly discredited – it is known that peers introduce children to drugs.

The Office of National Drug Control Policy (ONDCP) argues that the second most important objective of US drug policy is ‘to increase the safety of America’s citizens by substantially reducing drug-related crime and violence.’

Prohibitionists often point out that a high percentage of criminals test positive for illicit drugs. More meaningful, is the fact that an extraordinarily low percentage of drug users commit non-drug crimes. If drug use causes crime, why do the vast majority of drug users not engage in crime?

Three types of crime are linked to drug use. Systemic crimes occur because drug use is illegal and illicit drugs are bought and sold in black markets. A major study conducted in New York in 1988 revealed that 85% of all crack-related crimes were systemic crimes: they were caused by the market culture associated with crack sales, primarily territorial disputes between rival dealers.

Economic crime arises because some addicts need money to pay for their drug use. Husak points out that only 25% of adult prison inmates in the US who use illegal drugs and commit economic crimes cite their drug use as a primary motivation for becoming involved in criminal activity. Many such people are committing economic crimes before they started taking drugs.

Psychopharmacological crime arises from the effects of the drugs themselves. The drug that most likely causes psychopharmacological crime is alcohol. In 1998, it was reported that 21% of persons in US state jails or prison for violent crime were under the influence of alcohol and no other drug at the time they committed the crime. Only 3% were under the influence of cocaine or crack alone, and 1% were under the influence of heroin alone.

It is argued that drugs are bad for our minds and bodies. Whilst few prohibitionists declare explicitly, ‘The state is justified in punishing drug users because illicit drugs are bad for our health,’ this rationale is endorsed implicitly.

Illicit drugs do pose risks to physical and psychological well-being. However, whilst the state has a central role in protecting the health of its citizens, it does not ordinarily perform this function by punishing the very people whose health it endeavours to protect. If you eat spoiled meat, do you get sent to prison?

Prohibitionists also emphasise the public expense incurred when people make unhealthy choices. So does this mean we should send people who use drugs recreationally to prison in order to reduce insurance premiums and conserve public resources?

Husak also asks how criminalisation improves health? He questions whether the health of drug users improves in prison.

According to the ONDCP, about 25,000 Americans die each year from using illicit drugs. In fact, the majority of deaths linked to illicit drugs are caused by drug prohibition, not by the drugs themselves (see below). Approximately 100,000 people die each year from adverse reactions to prescription medications, whilst over 100,000 people die each year because of alcohol. At least 430,000 die each year because of tobacco.

Many activities that do not involve use of a drug are far more risky to health, even though no one would dream of using the criminal law to prohibit them. More than half of all Americans are now overweight. According to the Centre for Disease Control and Prevention, obesity accounts for about 300,000 deaths a year.

Husak finally refers to the moral view of prohibitionists. The former drug czar William Bennett said,

‘I find no merit in the legalizers’s case. The simple fact is that drug use is wrong. And the moral argument, in the end, is the most compelling argument.’


Husak argues that the injustice of criminalisation provides a strong reason to abandon punitive drug policies. He also argues that prohibition has caused a great deal of harm because it is counterproductive. He describes a number of bad consequences that are caused as a result of insisting that illicit drug users be punished.

Bad consequences of criminalising recreational drug use

Husak views racial bias as perhaps the most scandalous aspect of the punitive drug policy of the US. Even though white drug users outnumber blacks by a five to one margin, blacks comprise 62.7% and whites 36.7% of all drug offenders in state prisons. In Illinois, the state with the highest rate of black male drug offenders behind bars, a black man is 57-times more likely to be sent to prison on drug charges than a white man.

The disparity in punishment for possession of powder and crack cocaine is further evidence of racism in US drug policy. Whilst a first time offender convicted of possessing more than five grams of crack receives a mandatory sentence of five years imprisonment, five hundred grams of powder cocaine are needed before offenders receive a comparable sentence. About 90% of federal crack offenders are black, whilst almost 50% of powder cocaine defendants are white.

Prohibitionists claim that prohibition is justified to protect health. The National Institute on Drug Abuse (NIDA) lists 25,000 fatalities per year from illicit drugs in the US. However, as described earlier, Husak argues that a majority of these deaths are more properly attributed to drug prohibition than to drug use.

Some 14,300 fatalities are due to hepatitis and AIDS, diseases caused (mostly) by shared dirty needles. Needle exchange schemes could have prevented many of these deaths – and have been very successful in other countries – but the possession, distribution, and sale of syringes remain criminal offences in much of the US. The federal government continues to prohibit the allocation of its funds for needle exchange programs.

There is a vast historical evidence that demonstrates the pernicious role drugs have played in international affairs. In 1999, Congress passed the Western Hemisphere Drug Elimination Act, which authorised over $246 million for crop eradication programs. Husak argues that,

‘These programs have exacerbated human rights violations, strengthened undemocratic governments, and have helped to forge alliances between guerrillas and peasant growers.’

Eradication programs in Columbia have led to the clearing of over 1.75 million acres of Amazon rain forest and some environmentalists predict that within 50 years poor agricultural soils in Columbia may not be able to support the population. At the same time, aerial spraying of pesticides has destroyed legal subsistence crops and produced various health problems. Eradication programs have not reduced supplies to the US – crops are more likely to be moved elsewhere than eliminated.

It is argued by prohibitionists that drug users are more likely to commit crimes than those who do not use drugs. However, crime may actually be increased by prohibition. This is obvious in the case of systemic crime, with violence being more prevalent in illicit than in licit drug markets. Some people argue that more economic crimes are committed in a society with black market drugs than would be the case if drugs were decriminalised.

Although it is commonly assumed that communities become safer when criminals are sent to jail, this conventional wisdom has been challenged. Offenders become more deeply immersed in criminal subcultures and learn more sophisticated skills for committing crimes when in prison. And they eventually return to the neighbourhoods from which they came. Moreover, men who have been to prison are less likely to marry, get good jobs, or to develop productive relationships with family members once they are back on the streets – all of these increase their propensity to commit crime.

Husak believes that, ‘Truth is among the casualties of our misguided drug policy.’Lies and hypocrisy prevail.

‘The demonisation of illicit drugs is so pervasive that frank and honest discussion is almost impossible’, and people are afraid of the repercussions if changes are made. Children are sceptical of what they are told about drugs, whilst educators may be sceptical about certain programmes – and have proof backing this sceptism – but are scared to speak out because they may be called soft on drugs.

Prohibition has eroded civil liberties in which Americans take pride. Asset forfeiture has been a favourite strategy in the drug war. Assets may be seized if it is thought they were obtained by money obtained from drugs. This might preclude someone being able to pay for their defence. In fact, ministers in the UK have been discussing bringing in laws that would allow the authorities to seize a suspected drug dealer’s assets at the time of arrest – they seem to have forgotten the principle of, ‘innocent until proven guilty’.

Drug testing in schools is popular in some parts of the US and children can be barred from extracurricular activities if they refuse to take drug tests. Should we be allowing sniffer dogs into our classrooms to search for drugs? What message is this sending out to our children?

Husak points out that prohibition and the huge amounts of money in the illicit drug trade create irresistible temptations for law-enforcement agents to place themselves above the law. Some studies claim to conservatively estimate that 30% of the nation’s police officers have been unlawfully involved with illicit drugs. According to the Government Accounting Office, half of all the police officers in FBIled corruption cases between 1993 and 1997 were convicted of drug-related offences.

The eighth and final counterproductive effect of prohibition put forward by Husak is that the US’s,

‘… punitive drug policies cost exorbitant amounts of money. The federal government now spends close to 20 billion dollars per year, and state and local governments at least that much again, on combating illegal drugs.’

This is a modified version of an article written by DC for DDN in July 2006.

(Fordham Law)

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Legalize this!

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