Drugs and Rights

  Chapter 1 — Drugs, Drug Use, and Criminalization

    Douglas N. Husak

THE WAR ON DRUGS

    For a period of sixteen months from 1989-1990, a majority of Americans identified drugs as our nation's greatest concern, surpassing crime, the environment, taxes, the homeless, education, and the deficit.[1] War in the Middle East temporarily focused attention elsewhere. But President George Bush promised to restore the problem to its "number one" status "when the international situation has calmed down."[2] According to William Bennett, America's first "drug czar," "drugs remain... our gravest domestic problem."[3]
    So great is the problem perceived to be that the public has enthusiastically responded to the latest call for a "war on drugs." This declaration of war is not new. The military metaphor has dominated thought about drug policy ever since Richard Nixon became the first president to declare war on drugs.
    The war metaphor is, of course, an exaggeration; the resources mobilized against drugs are not comparable to efforts during wartime. The costs of enforcing criminal laws against the recreational use of drugs (henceforth shortened to "laws against drugs," or LAD) are modest by comparison to our military budget, even when we are officially at peace. Still, by any measure, a massive effort is under way to attempt to eliminate illegal drug use in our society. This effort is built on a broad, if not an especially deep, social consensus. Most of the opposition to the level of current expenditures for the war on drugs has come from congressional Democrats who argue that the commitment from Republicans is too meager. Americans perceive that drug use is out of control and that an extreme response is needed to curb it.
    Is this perception accurate? No one can be sure. Three factors contribute to this uncertainty, and they cannot be overcome simply by collecting more reliable data. First, there is no agreement about what constitutes a drug. Definitions of "drugs" are not especially helpful, as I will show later in this chapter. Second, there is no basis to compare and contrast the extent of drug use in the same country at different times, or in different countries at the same time. If Americans consume more of one drug but less of another than at some previous time, no common denominator is available to show whether we are using greater or lesser quantities of drugs. Third, there is no obvious starting point from which to measure trends. Drug use seems to have remained relatively constant over the last century, but it has increased dramatically throughout the most recent two-and-a-half decades, only to decline again in the past few years. These statistics can be manipulated to be used as evidence of whatever trend one wants to find.
    Not surprisingly, the exact extent of illegal drug use in America today is subject to dispute, although the quality of the data keeps improving.[4] Estimates are based primarily on three annual studies: the High School Senior Survey, conducted by the Institute for Social Research at the University of Michigan; the Drug Abuse Warning Network (DAWN), which collects data from 535 hospital emergency rooms and county medical examiners in twenty-one cities; and the National Household Survey on Drug Abuse, conducted by the National Institute on Drug Abuse. Additional data are available from a growing number of sources, such as companies that screen applicants and employees and police departments that administer drug tests on arrestees. Each survey is imperfect. However, they combine to provide reasonably accurate sociological information about drug use.
    According to the National Household Survey on Drug Abuse, more than 28 million Americans violated LAD in 1990. Violations occurred "on literally billions of occasions."[5] Illegal drug use in America remains at significant levels. But because of or despite the war on drugs, illegal use in virtually all categories has declined significantly throughout the last several years. Over 60% of high school seniors reported having tried marijuana during the peak year of 1979; that figure dropped to 44% in 1990.[6] Daily use has declined from a high of 10.7% in 1978 to only 2.9% in 1990. Cocaine use has peaked in high schools as well. During the peak year of 1985, 17.3% of high school seniors reported having tried cocaine; that figure dropped to 10.3% in 1990.[7] The use of psychedelics and amphetamines has followed a similar trend. Heroin use, never a significant problem in schools, has remained relatively stable throughout American society. And a 20% drop in cocaine-related medical emergencies in the fourth quarter of 1989 provides hope that the so-called crack epidemic may have peaked as well.[8]
    Accurate or not, the perception that drug use is out of control has triggered an enormous state response. Illegal drugs have become the single most important concern of our criminal justice system. Although estimates are imprecise, tens of billions of dollars are probably spent to enforce LAD every year,[9] and the less direct costs of the war on drugs are several times greater. Ronald Hamowy describes this war as "the most expensive intrusion into the private lives of Americans ever undertaken in the nation's history."[10]
    About 750,000 of the 28 million illegal drug users are arrested every year. Between one-quarter and one-third of all felony charges involve drug offenses.[11] The severity of a sentence has almost no limits for, as the Supreme Court has recently held, a term of life imprisonment without parole for the offense of possession of 677 grams of cocaine is not cruel and unusual punishment.[12] As a result, courts have become clogged, and prison overcrowding is legendary. The U.S. Sentencing Commission has estimated that within fifteen years the Anti-Drug Abuse Act passed by Congress in 1986 will cause the proportion of inmates incarcerated for drug violations to rise from one-third to one-half of all defendants sentenced to federal prison. The costs of punishment threaten to drain the treasury, as each prisoner requires expenditures of between $10,000 and $40,000 per year. Since the average punishment for a drug conviction has risen to seventy-seven months in prison, each new inmate will cost taxpayers approximately $109,000 for the duration of the sentence.[13]
    Law enforcement officials continue to exercise broad discretion in arresting and prosecuting drug offenders. More than three-quarters of those arrested are eventually charged with possession, typically of marijuana.[14] Many crimes of possession involve amounts that include a presumption of intent to distribute. Sometimes the quantity of drugs that creates this presumption is small. Moreover, the means used to measure the quantity of given drugs can be peculiar. Since statutes typically refer to a "mixture or substance containing a detectable amount" of a drug, the weight of the entire mixture or substance is included when calculating the quantity of a drug. If a tiny dose of LSD has been placed on a tab of paper or a cube of sugar, the weight of the tab or cube is included in the determination of the amount of the drug. The Supreme Court has recently held this practice to be constitutional.[15]
    The true extent of the war on drugs cannot be measured in quantities of dollars spent or numbers of defendants punished. The enforcement of drug laws has diminished precious civil liberties, eroding gains for which Americans have made major sacrifices for over two centuries. Increasingly common are evictions, raids, random searches, confiscations of driver's licenses, withdrawals of federal benefits such as education subsidies, and summary forfeitures of property. Atlanta has sought to reduce drug use and drug-related violence by imposing an 11:00 P.M. weekday curfew on youths under age seventeen. If successful, this experiment could be followed in other cities.
    And matters may get worse before they get better. Since existing efforts are widely perceived to be ineffective, more severe measures have been advocated. Red Auerbach, general manager of the Boston Celtics, captures the public mood by suggesting that the drug problem has become so overwhelming that "you have to put this altruistic civil rights stuff down the toilet."[16] Governor Douglas Wilder of Virginia proposes mandatory testing of college students for drug use. Chester Mitchell describes some of the more draconian ideas as follows:

In recent years members of Congress have proposed bills that would, if passed, permit the military to assist in drug law enforcement, create a northern Arctic "gulag" for drug offenders, restrict bail for drug suspects, permit disclosure of IRS data, eliminate the exclusionary rule, punish foreign drug producers, and repeal the prohibition against use of herbicides abroad.[17]

This list could be expanded. Texas state legislator Al Edwards proposes cutting off a finger for each drug conviction. Delaware state senator Thomas Sharp suggests flogging drug felons.[18] Bennett has responded that "I don't have any problem" with a proposal to "behead the damn drug dealers."[19] President Ronald Reagan reserved judgment when asked whether "drug dealers" should be executed, but he was quick to add, "I know they deserve it."[20] The fact that many of our politicians take these measures seriously indicates that, in the words of Charles Rangel, chair of the House Select Committee on Narcotics Abuse and Control, "We have yet to begin the fight. We have not even fired the first shot."[21] Perhaps no politician has ever lost a vote by promising to take a harder stance on drugs than an opponent. A 1989 Gallup poll revealed that 77 percent of all respondents favored "tougher laws for drug users."
    These facts, figures, and attitudes are staggering, but they cannot begin to tell the entire story of the war on drugs. Several important dimensions of this war cannot be reduced to raw numbers. At least three additional (and frequently overlooked) matters must be discussed if this war is to be understood and evaluated.
    First, why do so many Americans use recreational drugs? Or, more specifically, why do so many Americans use the kinds of recreational drugs of which the majority disapproves? The power of drugs per se can only be part of the explanation. Illegal drug use is less prevalent in many countries where drugs are plentiful, inexpensive, and higher in quality than those available in America. A more viable strategy to combat drugs might attempt to identify and change the conditions peculiar to America that have led to widespread use. For present purposes, I am less concerned to attempt to identify these conditions than to ask why this issue has received so little attention from drug prohibitionists. It is hard to see how a long-term solution to the drug problem can be found without knowing why so many Americans are motivated to break the law in the first place.
    This "root cause" argument is usually greeted with disdain. Bennett has dismissed it with the following analogy:

If we want to eliminate the drug problem, these people say, we must first eliminate the "root cause" of drugs.... Twenty-five years ago, no one would have suggested that we must first address the root causes of racism before fighting segregation. We fought it, quite correctly, by passing laws against unacceptable conduct. The causes of racism was an interesting question, but the moral imperative was to end it as soon as possible and by all reasonable means: education, prevention, the media, and not least of all, the law. So too with drugs.[22]

Bennett purports to explain why "the drug problem" can and should be "eliminated" without paying much attention to the "root causes" of drug use. Is his analogy between drug use and racial segregation sound?
    Perhaps efforts to combat segregation continue to prove difficult precisely because the root causes of racism have not been addressed. But I will not press this response here. Suppose it is true that the state should fight segregation without addressing the root causes of racism. Why might this be so? Segregation is a public manifestation of racism, and it may be possible to alter the structure of racist institutions without undermining racism itself. If the state sought to criminalize all manifestations of racism, law enforcement alone could not have much effect without addressing root causes. However, not all expressions of racism are subject to criminal penalties. In our private lives, we Americans remain free to act according to whatever racist beliefs we happen to hold. No laws prevent private displays of racism. One need not invite a member of a particular race to his private parties, but he is obliged to serve him in his public restaurants. Racism itself is not the target of desegregation efforts.
    But the war on drugs is different. LAD criminalizes both private and public acts. The state does not recognize a personal sphere in which individuals remain free to behave according to their preferences; it enacts a general prohibition of recreational drug use. For this reason, law enforcement in this area has a much more ambitious task than is assigned to those who fight against public segregation. It is less likely that the war on drugs can succeed without attending to the root causes of drug use.
    A second issue is typically neglected in understanding and evaluating the war on drugs: Why has war been declared on illegal drugs? The simplistic answer is that drugs pose a threat to American society comparable to that of an invading enemy. Self-protection requires the mobilization of resources equivalent to those employed in time of war. For reasons that will become clear, I do not believe that this answer can begin to explain the extraordinary efforts of the state in combating drugs. Few wars—and certainly not the war on drugs—can be understood as a purely rational response to a grave social crisis.
    No one doubts that the drug problem calls for state action, but why has a militaristic response been thought appropriate? The metaphors used to describe a phenomenon constrain what will appear to be an acceptable solution to it. If we really are at war against drugs, the alternative of decriminalization can be characterized only as a shameful retreat. William von Rabb, commissioner of the U.S. Customs Service, protests that legalization would be "an unconscionable surrender in a war [in which] there can be no substitute for total victory."[23] But what is "total victory," and why is it necessary? A policy that does not work can always be changed, but a war that is not won can only be lost. With hindsight, it appears that Americans may have been hasty in rallying to the call for a war on drugs. Perhaps we should not be talking about a drug war at all, but rather about a drug policy. A rational policy might well include massive efforts by our criminal justice system, but other components of a sensible policy—treatment, education, and the option of simply leaving people alone—are not easily expressed within a war mentality.
    What needs to be explained is why some problems are singled out for attention, whereas others are relatively ignored.[24] The abuse of legal drugs such as alcohol and tobacco is not the only hazard likely to be overlooked by the war on illegal drugs. Another such problem is lead. Federal authorities estimate that one out of every six children under the age of six suffers from irreversible lead poisoning.[25] Children with elevated lead levels have impaired auditory and language functioning, decreased attention spans, liver and kidney damage, altered electroencephalogram readings, and a median IQ deficit of six points compared to their low-lead classmates.[26] Despite these alarming data, no one has called for a declaration of war on lead. Why not? There is no need to suppose that the state is conspiring to deliberately manufacture a crisis in order to support an Orwellian expansion of Big Brother. An alternative account explains why the public has been so receptive to a militaristic response to drug use.
    The public fears that America is a nation in decline. Crime, poverty, poor education, corporate mismanagement, and an unproductive and unmotivated work force are cited as evidence of this deterioration. Who, or what, should be blamed? The political climate limits the range of acceptable answers. Conservatives will not allow liberals to blame institutional structures for our problems. The difficulty cannot be that government has failed to create the right social programs to help people. Nor will liberals allow conservatives to blame individuals for our problems. The difficulty cannot be that people are lazy, stupid, or egocentric. What alternative explanations remain?
    Illegal drugs provide the ideal scapegoat. Drugs are alleged to be so powerful that persons cannot be blamed very much for succumbing to them, as they could be blamed for not studying or working. And drugs are so plentiful and easy to conceal that government cannot be blamed very much for failing to eliminate them. Even better, most drugs are smuggled from abroad, so Americans can attribute our decline to the influence of foreigners. In blaming drugs, politicians need not fear that they will antagonize a powerful lobby that will challenge their allegations and mobilize voters against them. Almost no organized bodies defend the interests of drug users. Illegal drugs represent a "no-lose" issue, the safest of all political crusades.
    A scapegoat would be imperfect unless there were at least some plausibility in the accusations of drug prohibitionists. Perhaps illegal drug use has increased crime, contributed to poverty, exacerbated the decline in education, and decreased the productivity of workers. Sometimes it may have done so in dramatic ways. The stories of the most decrepit victims of drug abuse lend themselves to biographies and television docudramas that make a deep and lasting impression on viewers. Everyone has seen vivid images of persons who were driven by drugs to commit brutal crimes, abandon their children, steal from their friends, drop out of school, stop going to work, and perhaps even die. In light of these consequences, who can condone illegal drug use?
    I will attempt to show that a more accurate profile of the typical adult user of illegal drugs is less negative. This picture should emerge as a result of two factors that help to keep the drug problem in perspective. First, any number of other problems that receive almost no media attention and have not been made the target of a war contribute enormously to the problems America would like to solve. Second, the terrible problems associated with drug use occur in only a very small minority of cases. A persistent theme of this book is that drug policy has too often been framed by unwarranted generalizations from worst-case scenarios that seldom conform to the reality of typical drug use.
    I will not further explore these two issues I believe to be significant in understanding and evaluating the war on drugs. A more detailed treatment, however important, would only reinforce the social perspective on drugs that I am anxious to replace. I am not primarily interested in showing that the disutility of drug use has been exaggerated. Instead, my position is that moral and legal questions about drug use have been approached from too narrow a perspective. In a society that boasts of its concern for moral rights, debates about drugs have tended to lose sight of individuals. Decriminalization theorists have done as much to encourage this misperception as apologists for the status quo. Both sides frame the central question in similar terms: Do drugs cause more harm than drug laws? If the answer is no, LAD should be opposed; if the answer is yes, war should be waged. But this utilitarian approach, however insightful, is not the only perspective worth adopting. I will argue that utilitarian thinking is inappropriate to apply to the act of recreational drug use unless prohibition does not infringe the moral rights of drug users. It is by the standard of moral rights that the justifiability of the war on drugs should be assessed, and it is by the standard of moral rights that the justifiability of the war on drugs is most vulnerable.
    A third and final issue about the war on drugs raises a matter that I will explore in greater depth: If there is to be a war on drugs, against which drugs should it be waged? Usually this question is answered by naming acceptable and unacceptable recreational drugs: Heroin and crack are terrible; cocaine is only slightly better, but poses a comparable threat because it is more widely used; marijuana is not quite so worrisome, but still is bad enough to prohibit; alcohol and tobacco are not good, but should be tolerated. This kind of response, however, simply identifies a number of conclusions without indicating the reasoning that supports them. It does not articulate a set of principles to test the accuracy or coherence of these judgments. Particular drugs obtain their evaluations because they are believed to possess certain characteristics; conceivably, some of these drugs could lack those characteristics. Criteria are required to show why some recreational drugs should be prohibited, and others should be allowed.
    I believe that progress in thinking about drugs can be achieved by shifting the focus of debate from real to hypothetical cases. What properties would a recreational drug have to possess so that adults would have a moral right to use it? What properties would a recreational drug have to possess so that adults would lack a moral right to use it? Only if these questions are answered is it possible to identify those existing drugs, if any, that satisfy these criteria. Without answers to these questions, no one should be too confident that a war on a given recreational drug is justified. Even if these questions do not seem urgent today, they are certain to become more pressing in the future. As Bennett warns: "New illegal products will no doubt continue to appear.... Whichever happens to be the drug of the day, our job is to persist in making it difficult to buy, sell, or use it."[27] But why? Simply because it is a drug? What is it about drugs that makes their prohibition seem so urgent? Is it impossible even to imagine a new recreational drug that society should condone and perhaps welcome?

 

MEDICAL AND LEGAL DEFINITIONS OF DRUGS

    Labeling a substance a "drug" has extraordinary significance in the eyes of the public. The belief that a recreational activity involves a drug automatically evokes wholly different attitudes and reactions than are thought to be appropriate for a recreational activity that does not involve a drug. War has been declared on drugs. If war is to be declared on something, one would hope that two conditions would be satisfied. First, the enemy should be clearly identified. Second, the special significance of the enemy should be demonstrated. Unfortunately, neither condition is satisfied by the war on drugs.
    Rarely do makers of policy bother to propose a definition of drugs. According to Franklin Zimring and Gordon Hawkins, this failure reflects "a long-standing tradition generally respected throughout the available literature on drug abuse and most clearly evident in previous reports on the subject published by federal departments and agencies."[28] Why has this failure been tolerated? Zimring and Hawkins offer no explanation. Lyndon Johnson's declaration of "war on poverty" gave rise to endless controversies about how poverty should be defined. But the declaration of war on drugs has stimulated little dispute about what drugs are. The problems I will raise in this section are not due to sloppiness in defining terms. They cannot be overcome simply by exercising greater care and ingenuity in the crafting of definitions. Instead, they indicate that the very concept of a drug is vague and imprecise.
    How is "drug" defined by those who make the effort to define it at all? The answer depends on the discipline where an answer is sought. Perhaps the most frequently cited medical definition is "any substance other than food which by its chemical nature affects the structure or function of the living organism."[29] Undoubtedly this definition is too broad. Nonetheless, I tentatively propose to adopt it until a better alternative becomes available.
    Notice that this definition refers only to the pharmacological effect of a substance and not to its legal status. For two reasons, "drugs" must not be defined as synonymous with "illegal drugs." First, it would be absurd to suppose that a non-drug could become a drug, or that a drug could become a non-drug, simply by a stroke of the pen. A legislature can change the legal classification of a substance, but not the nature of that substance; it has no more power to decide that a substance is a drug than to decide that a substance is a food. Second, a philosophical study designed to evaluate the moral rights of drug users can hardly afford to rely uncritically on the existing legal status of substances, since the legitimacy of these determinations is part of what is under investigation. To suppose that "drugs" means "illegal drugs" begs important questions and concedes much of what I will challenge. In what follows, I will use the word "drug" to refer to both legal and illegal substances that satisfy the medical definition I cited.
    No doubt this usage will create confusion. Despite the desirability of distinguishing "drugs" from "illegal drugs," there is ample evidence that the public tends to equate them. Surveys indicate, for example, that whereas 95 percent of adults recognize heroin as a drug, only 39 percent categorize alcohol as a drug, and a mere 27 percent identify tobacco as a drug.[30] This tendency is pernicious. The widespread premise that only illegal substances are drugs lulls persons into accepting unsound arguments such as the following: Drugs are illegal; whatever is illegal is bad; we drink alcohol; what we do isn't bad; therefore, alcohol is not a drug. Clear thinking about this issue is impossible unless one realizes that whether a substance is a drug is a different question from whether that substance is or should be illegal.
    How did the "semantic fiction"[31] equating "drugs" with "illegal drugs" arise? The story of nicotine may be instructive. The inability of the public to recognize nicotine as a drug is due less to the pharmacological effects of the substance than to the powerful political influence of the tobacco industry throughout American history. The regulation of tobacco is not under the authority of the Food and Drug Administration (FDA). Tobacco appeared in the 1890 edition of the U.S. Pharmacopeia, an official listing of drugs published by the government. But the drug was deleted from the 1905 edition, which automatically withdrew it from FDA supervision. The removal of tobacco from the Pharmacopeia was the price that had to be paid to induce legislators from tobacco-growing states to support the Food and Drug Act of 1906. The FDA had another opportunity to gain authority over nicotine when the Hazardous Substances Labeling Act of 1960 empowered it to control the sale of dangerous substances with the capacity to produce illness through inhalation. But the secretary of the Department of Health, Education, and Welfare (DHEW), the parent organization of the FDA, argued that this act should not be construed to create FDA authority to regulate cigarettes until Congress amended the act to make this interpretation more explicit. Congress subsequently rejected such an amendment.[32] The familiar health warnings on cigarette packages were eventually required by the Federal Trade Commission (FTC) as part of its authority to regulate unfair and deceptive trade practices. The status of nicotine as a "drug" is irrelevant to the basis of the FTC's authority. The moral of this story is that the categorization of a substance as a drug is a function of politics and not just of pharmacology.
    The unfortunate equation of "drugs" with "illegal drugs" runs throughout the policy statements of the National Drug Control Strategy. Bennett alleges that "the majority of American city residents... do not take drugs," but he also cites statistics to show that alcohol is "the most widely abused substance in America."[33] These two statements suggest that Bennett believes that alcohol is not a drug. What, then, is a drug? Bennett does not say.
    Legal definitions of "drugs" are somewhat more complicated than the earlier medical definition. The federal Controlled Substances Act incorporates the following definition of "drugs" from the Food, Drug, and Cosmetic Act:

"Drugs" means (a) substances recognized in the official United States Pharmacopeia, official Homeopathic Pharmacopeia of the United States, or official National Formulary, or any subsequent to any of them; and (b) substances intended for use in the diagnosis, cure, mitigation, treatment, or prevention of disease in man or other animals; and (c) substances (other than food) intended to affect the structure or any function of the body of man or other animals; and (d) substances intended for use as a component of any article specified in subsections (a), (b) and (c) of this section; but does not include devices or their components, parts or accessories.[34]

I will offer two critical observations about this elaborate definition.
    First, the conjunction "and" that separates the four criteria, (a)-(d), in this definition cannot be taken literally. Would anyone seriously maintain that a substance fails to satisfy this statutory definition because it is not used in the diagnosis or treatment of a disease, even though it is listed in the Pharmacopeia and affects the structure or function of the body? On the other hand, no one would argue that a substance qualifies as a drug simply by satisfying any of these four criteria. Is a stethoscope a drug because it is a substance used in the diagnosis of disease?
    Second, criteria (b), (c), and (d) make a peculiar reference to intentions. A substance satisfies criterion (b) if it is intended to be used for the diagnosis of a disease and criterion (c) if it is intended to affect the structure or function of the body. The statute does not explicitly identify the person(s) to whose intentions it refers. One would think that the intentions of the person who makes the diagnosis are relevant in (b), whereas the intentions of the person who dispenses or uses the substance are relevant in (c). This reference to intentions produces some very curious results. Users may be mistaken about whether a particular substance has an effect. Suppose that someone believes that the consumption of a placebo will affect his bodily structure or function. If so, the placebo qualifies as a drug according to this definition. One can only speculate about why the drafters of this statute thought it advisable to define drugs not according to their true properties or effects, but according to the properties or effects that an unspecified person intends them to have.
    Only criterion (a) does not make reference to intentions. It provides what might be called an operational definition; it describes a simple test to determine whether a substance is or is not a drug: A substance is a drug if and only if it is contained in the Pharmacopeia. This process is like defining a word as whatever configuration of letters appears in an authoritative dictionary. Ultimately, however, operational definitions resolve nothing; they merely shift the burden to experts who prepare the authoritative sources. How do the experts decide what drugs are? As I have already suggested in the case of tobacco, the exclusion of a substance from the Pharmacopeia need not be a function of its pharmacological properties. If the manufacturers of tobacco products had lacked political clout around the turn of the century, or if tobacco had been discovered later in history, tobacco would certainly have appeared in the Pharmacopeia, thereby satisfying criterion (a) of the legal definition of "drug."
    For these two reasons, this legal definition is deficient. Do these defects contaminate any legal results that invoke this definition? Since so much depends on whether the public regards a substance as a drug, one might naturally anticipate that the same would be true of the law. Many difficult questions arise in the course of interpreting this definition. Consider two examples. Since a given substance becomes a drug when it is intended for use in the treatment of "disease," it becomes crucial to know what a disease is. Philosophers of medicine have debated the nature of disease since Plato. And because "foods" are contrasted with drugs, it becomes crucial to know what a food is. Statutory definitions are unhelpful.[35] In light of the propensity of lawyers to stir up litigation, enormous controversy should have surrounded attempts to define "disease" and "food."
    Surprisingly, these legal controversies have rarely taken place, and it is important to understand why. The simple explanation is that modern statutes do not rely on the term "drug" very much. Nothing of legal significance depends on whether or not a substance satisfies the preceding definition and qualifies as a drug. The terms of the Controlled Substances Act create the authority to regulate "drugs or controlled substances," not "drugs" per se. As I will describe in more detail in the following section, regulation under this act is achieved by placing a drug on one of five schedules. The statute defines "controlled substance" to mean "a drug, or other substance, or immediate precursor, included in Schedule I, II, III, IV, or V."[36] Thus a "controlled substance" can refer to either a "drug" or an "other substance," as long as it is placed on a schedule. The act does not define "substance," and it provides no guidance about how the distinction between substances and non-substances should be drawn. Remarkably, the concept of a drug has no special significance in this statutory scheme.
    In other words, legislators can admit that a substance is not a drug without surrendering any of their authority to regulate it under the Controlled Substances Act. Nothing prevents this statute from being used to prohibit the manufacture, sale, distribution, possession, or consumption of non-drugs, as long as what is regulated qualifies as a substance. As one might expect, this broad, almost unlimited authority to control substances rather than drugs produces some very peculiar results. However, the authority created by the act is not boundless. Some materials—"distilled spirits, wine, malt beverages, or tobacco"—are explicitly excluded from the definition of a "controlled substance."[37] Alcohol and tobacco are not controlled substances for the simple reason that the statute says they are not. With this stroke of the legislative pen, two of the most dangerous drugs are placed beyond the scope of regulation under the Controlled Substances Act.
    The circularity in this definition of a "controlled substance" is evident. A controlled substance is any substance that appears on any of the five statutory schedules. In other words, a controlled substance is any substance that is controlled. From all that has been said so far, water and chocolate could qualify as controlled substances. The definition of drugs explicitly distinguishes drugs from foods, but since foods would seem to be substances, this statute could be used to prohibit the consumption of foods after all. Beyond the explicit exceptions for alcohol and tobacco, the only limitations on what substances can be controlled are found in the criteria for appearance on each of the five statutory schedules. In effect, these criteria substitute for a definition of "drugs." Even more importantly, they specify what it is about substances that makes them eligible for regulation.
    Although almost anything would seem to be a substance and thus eligible for regulation under the Controlled Substances Act, I do not suppose for a moment that courts would actually allow air, water, or other fanciful examples to be prohibited under this statute. Obviously, this act was not intended to create the authority to proscribe the sale of handguns. But nothing in this statute requires that a "drug or other substance" be consumed; surely a bullet in the brain can "affect the structure or function of the body," partly as a result of its chemical properties. It would be fascinating to examine the reasoning of a court about why such fanciful examples are ineligible for regulation under the act.
    Despite the fact that legal regulations effectively abandon the concept of a drug in favor of the amorphous concept of a substance, I will continue to follow popular usage and discuss the moral and legal issues involved in recreational drug use. In most of what follows, I will pretend that the act does not create the authority to regulate substances that are not drugs. Yet I do so with reluctance and not simply because "drug" is hard to define. Shifting the inquiry from drugs to substances would help to overcome the tendency to believe that the drug problem is sui generis. The fact that a substance is or is not a drug does not seem especially important to the case for or against its legal regulation. Suppose that a new food were discovered that was no more or less dangerous or subject to abuse than cocaine and had exactly the same side effects. The fact that this new substance is a food rather than a drug is not, I think, relevant to the decision about whether it should be prohibited.
    In fact, I see no reason why the same criteria of justification that pertain to the regulation of substances, drugs or otherwise, should not pertain to the regulation of all recreational activities. Suppose, for example, that a new activity were invented that was no more or less dangerous or subject to abuse than cocaine and had exactly the same side effects. The fact that this new recreational activity does not involve the consumption of a drug is not, I think, relevant to the decision about whether it should be prohibited.
    In other words, the fact that something affects the function or structure of the organism by its chemical properties does not seem to be especially significant. The personal and social effects of an activity are important to the case for prohibiting it, not the means by which they result. I will test the hypothesis that "drugs are not different" throughout this book. This hypothesis will not lead me to abandon the use of the word "drug," but it will allow me to draw frequent analogies between the use of drugs, the consumption of unhealthy foods, and the performance of dangerous activities. If these analogies fail, it will not be because drugs and non-drugs should be evaluated by different criteria. Or so I will tentatively suppose.
    Those who regard these analogies as inapt must make a case that drugs are different. But no support for the belief that drugs are different can be drawn from the legal definition of "drug" found in the statutory scheme that controls drug use. This belief, which tends to be taken for granted by the public, seems to have been repudiated by those who drafted the Controlled Substances Act, and who did not attach any special significance to drugs per se.
 

LEGAL REGULATION OF DRUGS

Mark Moore writes:

One of the most frustrating aspects of the current debate about legalization is that the debaters often seem ignorant about the current legal regime. The system of laws regulating drug use is often painted as moralistic and paternalistic rather than as a rational scheme for regulating the uses of psychoactive drugs.[38]

    Moore is correct that both friends and foes of LAD are often unaware of how recreational drug use is regulated by law. In this section, I propose to remedy this deficiency. However, my examination does little to support Moore's judgment that LAD comprises a "rational scheme."
    The Comprehensive Drug Abuse Prevention and Control Act, popularly known as the Controlled Substances Act of 1970, provides the basis for understanding the legal regulation of drugs. This act supplanted previous statutory schemes for prohibiting the use of drugs and serves as a model for a uniform state law. Forty-five states have adopted the Uniform Controlled Substances Act in some form or another; only Alaska, Colorado, Maine, New Hampshire, Vermont, and the District of Columbia have failed to do so. This act divides "drugs or other substances" into five schedules. The placement of a drug in one schedule or another affects manufacturing quotas, import restrictions, dispensing limits, and criminal penalties for unlawful trafficking. The schedule where a drug is placed has no affect on the punishment for unlawful possession.
    This act does not criminalize drug use per se. This fact is not especially significant. The comparable statutes in twelve states create "use provisions," which punish "using" or "being under the influence" of a controlled substance. Most states follow the federal act and do not criminalize use itself. The difference is unimportant, since it is virtually impossible to use a drug without possessing it. As I will argue in Chapter 3, possessory offenses are anticipatory; they provide a means to prevent the consummate harms associated with drug use before they occur. If drugs were not used, no one would worry about their possession. In case there is any doubt, Bennett writes that "the drug problem in its essence" is "use itself";[39] drug use is "the chief and seminal wrong."[40] No one thinks that possession is the "seminal wrong" or the "essence" of the drug problem. For these reasons, I will continue to refer to the crime of drug use, although I am fully aware that the Controlled Substances Act does not explicitly create such an offense. This fact does not affect any of my arguments for or against LAD.
    Although there is some variation among states about the particular schedule where a given drug is placed, the federal act categorizes drugs roughly as follows: Schedule I includes heroin, LSD, and marijuana; Schedule II, cocaine and amphetamine-type stimulants; Schedule III, nonamphetamine-type stimulants and barbiturates; Schedule IV, barbiturate and nonbarbiturate depressants; and Schedule V, compounds with low amounts of narcotics, stimulants, and depressants. Three states (Arkansas, Tennessee, and North Carolina) have created a special "Schedule VI" solely for marijuana.[41]
    The criteria governing the schedule where a drug is placed are controversial, important, and resistant to a quick summary, so I will reproduce them in full:

(1) SCHEDULE I:
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has no currently accepted medical use in treatment in the United States.
(C) There is a lack of accepted safety for use of the drug or other substance under medical supervision.

(2) SCHEDULE II:
(A) The drug or other substance has a high potential for abuse.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States or a currently accepted medical use with severe restrictions.
(C) Abuse of the drug or other substance may lead to severe psychological or physical dependence.

(3) SCHEDULE III:
(A) The drug or other substance has a potential for abuse less than the drugs or other substances in schedules I and II.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to moderate or low physical dependence or high psychological dependence.

(4) SCHEDULE IV:
(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule III.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III.

(5) SCHEDULE V:
(A) The drug or other substance has a low potential for abuse relative to the drugs or other substances in schedule IV.
(B) The drug or other substance has a currently accepted medical use in treatment in the United States.
(C) Abuse of the drug or other substance may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule IV.[42]

These criteria are used to decide whether and under what circumstances a drug will be regulated. In addition, they identify what it is about a drug in virtue of which prohibition is thought to be justifiable.
    An examination of these criteria is central to my theoretical project to describe a recreational drug that adults would have or would lack a right to use. Apparently, the state concedes that persons have a legal right to use those recreational drugs that fail to satisfy the criteria for inclusion on any of the five statutory schedules. Hence these criteria contain the state's answer to the question of what properties a recreational drug would have to possess before adults would have or would lack a right to use it. Interpretations of this act should make it possible to describe a hypothetical drug that is not controlled and that adults have a right to use recreationally.
    Applications of this complex statutory scheme require a number of very difficult determinations. I will discuss some of the more controversial issues that arise in deciding where (or whether) to schedule a given drug.
    First, the drafters of the act neglect to specify the relationship among the several criteria used to schedule a given "drug or other substance." As with the definition of "drug" I described earlier, no "and" or "or" clearly separates the end of one criterion from the beginning of the next. Perhaps the more natural reading of the act is that the criteria should be conjoined. In other words, a "drug or other substance" should not be placed on Schedule I unless it satisfies criterion (A) and (B) and (C). If so, the number of existing schedules is grossly inadequate to classify all drugs. For example, a "drug or other substance" with "no accepted medical use" but with less than a "high potential for abuse" cannot be placed on any of the five schedules.
    In order to avoid this difficulty, one might expect that courts would construe the criteria disjunctively. According to this interpretation, a "drug or other substance" may be placed on Schedule I if it satisfies criterion (A) or (B) or (C). But this interpretation is absurd. No one would think that possession of a "drug or other substance" without a medical use should give rise to criminal penalties. A lump of coal may lack a medical use, but surely its possession could not be made criminal under the act. But why not? Much of the difficulty is due to the failure of the drafters to restrict the application of the act to "drugs" rather than to "drugs or other substances."
    Judicial interpretations of the terms of the act have not resolved the confusion over the relationship among the several criteria used to schedule a given drug. Courts have held that "the three statutory criteria for Schedule I classification... should not be read as being either cumulative or exclusive."[43] These criteria "are guides in determining the schedule to which a drug belongs, but they are not dispositive."[44] Apparently, the relationship among the criteria should not always be construed either conjunctively or disjunctively.
    This holding is unhelpful in providing any guidance about how the statutory criteria should be interpreted. This failure is serious. As a result, the criteria for placing a substance on one schedule rather than another can be, and often are, indeterminate. Thus the Controlled Substances Act offers no definitive answer to the question: What properties must a drug possess before its use can be prohibited? Of course, the use of a recreational drug that satisfies none of the criteria of the act will be permitted. For this reason, it should still be possible to describe the properties of a hypothetical drug that falls beyond the reach of the act.
    Several criteria in the act must be interpreted before such a recreational drug can be described. Criterion (B) in Schedules I-V is especially difficult to understand. Applications of the Controlled Substances Act require a determination of whether a "drug or other substance" has a "currently accepted medical use." Drugs without a currently accepted medical use are placed in Schedule I; otherwise, they are placed in subsequent schedules. How does one decide whether a given drug has an accepted medical use?
    According to one possible answer, a drug has an accepted medical use only when the FDA approves an application to market it. But this answer cannot be correct. The FDA might reject an application to market a drug for seven distinct reasons, including the failure of the application to contain relevant patent information.[45] The absence of medical use cannot be inferred simply from the lack of FDA marketing approval.
    A second possible answer is that a drug has an accepted medical use when sufficient numbers of the medical community believe that it has such a use.[46] But this interpretation opens a Pandora's box. If medical practitioners agree that the best treatment for drug addicts includes administration of an addictive drug under medical supervision, then no addictive drug will satisfy this criterion for placement on Schedule I. According to this interpretation, any addictive drug could have a medical use. But this result cannot be what the drafters of the act had in mind by an "accepted medical use."[47] They clearly had no intent to duplicate the so-called British System and to allow medical practitioners to prescribe Schedule I narcotics to addicts.
    A closely related problem is to determine how a drug can acquire an "accepted medical use" once it has been placed on Schedule I. According to some commentators:

The true test of [the statutory scheme] will be in loosening restraints when justified. A scheme that is directed only to wards tighter and tighter controls will, in time, lose its most important attributes, flexibility, and the capacity to adjust to changing social circumstances.[48]

    But flexibility is hard to achieve under the act. A drug that is illegal for doctors to prescribe cannot possibly have a medical use that is accepted. Nearly half of the cancer specialists responding to a questionnaire answered that they would prescribe marijuana if it were removed from Schedule I.[49] But it is not clear that this poll shows that marijuana has an accepted medical use. Thus the debate about how a drug gains or loses an "accepted medical use" remains unresolved. Deciding whether a drug has or lacks a medical use has turned out to be a quagmire. But applications of criterion (A) in Schedules I-V are even more troublesome. This criterion, which requires a determination of a drug's potential for abuse, is perhaps the most important basis for deciding where a given drug should be scheduled. A drug with a "high potential for abuse" will be placed on Schedule I or II (depending on whether it has a medical use), and drugs with a "low potential for abuse" relative to those on Schedules I or II will be placed on successively higher schedules. How is the relative potential for abuse of a drug to be ascertained? The act does not define "abuse" or "high potential for abuse," although attempts to challenge the constitutionality of the act for this reason have proven unsuccessful.[50]
    The legislative history of the Controlled Substances Act reveals the following four guidelines to identify the extent of a drug's potential for abuse:

(1) There is evidence that individuals are taking the drug... in amounts sufficient to create a hazard to their health or to the safety of other individuals or of the community; or
(2) There is significant diversion of the drug... from legitimate drug channels; or
(3) Individuals are taking the drug... on their own initiative rather than on the basis of medical advice from a practitioner licensed by law to administer such drugs in the course of his professional practice; or
(4) The drug or drugs... are new drugs so related in their action to a drug or drugs already listed for having a potential for abuse to make it likely that the drug will have the same potentiality for abuse.[51]

Although these guidelines are helpful, many problems remain.
    First, notice that these guidelines only address whether a drug has some potential for abuse but do not speak to the more difficult question of how to measure the extent of this potential. Unless the degree of the potential for abuse can be quantified, no drug can be assigned to a particular schedule. Only guideline (4) provides a basis of comparison. Pursuant to (4), a new drug should be placed on a schedule by estimating its potential for abuse relative to drugs that are already scheduled. Of course, this approach is sound only if the drugs in the comparison class have been scheduled properly. Without understanding how the relative potential for abuse is to be measured, it is impossible to know if the drugs already scheduled have been placed correctly or incorrectly. In short, the entire scheduling process lacks an anchor.
    Moreover, practically any "drug or other substance" will be abused by some persons to some degree at some time or another. Very curious results can be produced by temporarily suspending the pretense that the act controls drugs rather than substances. From all that has been said so far, nothing would preclude placing chocolate on Schedule I.
    But problems remain even if applications of the act are restricted to drugs. These guidelines fail to specify whether a potential for abuse becomes high because a great percentage of users abuse the drug a little, or because a small percentage abuse the drug a lot. Judicial interpretations of the act indicate that the latter circumstance suffices to allow a drug to be placed on Schedule I or II. Evidence that a few users have required treatment in hospital emergency rooms has helped to persuade courts that a drug belongs on Schedule I, even though those who require emergency care may represent a tiny fraction of the total number of users. As a result, the act has the effect of sacrificing the interests of the (perhaps overwhelming) majority of persons who use a drug without undue hardship to promote the interests of the (perhaps small) minority of persons who use a drug abusively. Perhaps this sacrifice of the many for the sake of the few can be justified—I will return to this issue later—but it cannot be taken for granted.
    In addition, guideline (3) seemingly identifies any nonmedical use of a drug as abuse. The very act of taking a drug for a nonmedical reason constitutes abuse and allows the drug to be regulated under the act. Some commentators appear to go so far as to define drug abuse in terms of recreational use.[52] From this perspective, the suggestion that drugs have a nonmedical use is incoherent, and not merely false. Understanding how a drug might properly be used recreationally is no easier than understanding how a square could be round.
    A final difficulty in interpreting (A) in Schedules I-V is that the placement of a drug depends on its potential for abuse. The scheduling of a drug need not wait "until a number of lives have been destroyed or substantial problems have already arisen."[53] But how is the potential for abuse of a given drug to be determined in the absence of evidence of actual abuse? Some commentators have argued that the "strong euphoria" produced by a given drug "suggests a high abuse potential."[54] In other words, a drug is subject to great abuse simply because it is a lot of fun to use. The finding that a drug produces pleasure is all that is required to subject it to the most stringent controls under the act.
    In any event, difficulties in scheduling a particular drug turn out to be irrelevant for purposes of answering my central question. Adults have no legal right to use a drug recreationally, regardless of where it is scheduled. Even more significantly, the extent of punishment for illegal possession, and thus for use, does not change with the scheduling of a drug. "Simple unlawful possession" of any controlled substance is punishable by "a term of imprisonment of not more than one year, a fine of not more than $5,000, or both."[55] Under federal law, unlawful possession of heroin is punished no more severely than is possession of a Schedule V substance without a prescription.
    Perhaps the difficulties in interpreting and applying these statutory criteria should come as no surprise. Political factors having nothing to do with the harm or likelihood of abuse of a drug have clouded the act since it was drafted. According to David Musto, "The history of drug laws in the United States shows that the degree to which a drug has been outlawed or curbed has no direct relation to its inherent danger."[56] The very creation of Schedule I was partly due to the efforts of manufacturers and distributors of "legitimate" substances to ensure that their products were not classified along with illicit drugs.[57]
    I hope to have cast doubt on the accuracy of Moore's description of LAD as "rational." Nonetheless, my central concern has not been to expose the deficiencies of the Controlled Substances Act. I have explored the terms of this act primarily because the criteria for inclusion on the statutory schedules provide the state's answer to the question: What properties must a drug possess before adults have or lack a right to use it recreationally? The answer to this question is now apparent. Except for the ad hoc statutory exemptions for tobacco and alcohol, the recreational use of drugs is totally proscribed. This result follows from two related strains of thought. First, since recreational use is nonmedical, a drug is subject to prohibition on this ground alone. Even if a given drug has a medical use, its consumption for recreational purposes constitutes abuse. Second, since the effects of a drug must be enjoyable before anyone would want to take it recreationally, the use of a drug to produce pleasure is tantamount to abuse, again making that drug eligible for prohibition. Therefore, it is impossible to imagine a drug that anyone would want to use recreationally that would be permitted for such a purpose under the Controlled Substances Act.
    These extraordinary results can hardly be described as "rational" inasmuch as they express an unreasonable prejudice against recreational drug use per se. It is unthinkable that any other activity would become eligible for harsh punishment solely because it is euphoric. Ordinarily, the discovery that an activity produces pleasure would be an occasion for celebration—unless that activity involves drug use. Why should the fact that a drug is pleasurable but lacks a medical use be a sufficient reason to prohibit it for recreational purposes?
 

CONSTITUTIONAL ISSUES

Understanding the terms of the Controlled Substances Act has proved to be difficult. Moreover, problems go beyond statutory interpretation. My final observation about this act is perhaps the most important, as it raises constitutional questions about legal prohibitions of recreational drug use.
    Challenges that a particular drug should not be controlled at all, or that it should be placed on a different schedule, are typically adjudicated according to the "rational basis test." According to this test, "those challenging the legislative judgment must convince the court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker."[58] The judge must determine "whether there exists any set of facts which can be shown or which could reasonably be assumed to provide support for the classification selected by Congress."[59] The application of this test results in near-absolute deference to legislative judgments; rarely have plaintiffs prevailed in showing that a rational basis for a legislative determination is lacking. Judges have almost never upheld challenges to the legal classification of a drug, despite enormous dispute about its dangerousness and considerable vagueness in the statutory scheme.
    Courts seldom subject legislative regulation of drugs to heightened levels of scrutiny. They have declined to apply the demanding "compelling state interest" test to assess challenges that a given drug should be placed on a different schedule or should not be controlled at all. According to this test, a law is unconstitutional unless it is "necessary, and not merely rationally related, to the accomplishment of a permissible state policy."[60] If this test were applied, courts would be forced to decide whether a less restrictive alternative might better achieve whatever objectives are sought by LAD. To make this determination, the objectives of LAD would have to be identified. These issues need not be confronted as long as the rational basis test is applied.
    Applications of the rational basis test make hard cases seem easy. Consider the all-too-familiar conflicts about smoking cigarettes in public places. One might think that these conflicts pit the "right to smoke" against the "right to breath clean air." If so, the conflict cannot be resolved without some procedure to decide which right is entitled to a greater degree of protection. According to Robert Goodin, the rights of nonsmokers take precedence. Goodin does not categorically reject the existence of a right to put a substance into one's body. Yet he maintains that "there is no larger social interest of free speech or any other to be served by allowing [smoking]."[61] The rationale for curbing smokers is no different from the basis for regulating "smelly factories."[62] The fact that smokers may enjoy smoking does not count for very much. Although I have little quarrel with his conclusion, I suspect that Goodin reaches it too easily. The right to put a substance into one's body should not be weighted so lightly.
    Occasionally courts have invoked standards of review that are intermediate between the rational basis and compelling state interest tests. In Ravin v. State, the most noteworthy case to invoke an intermediate test, the Alaska Supreme Court held that "the right to privacy would encompass the possession and ingestion of substances such as marijuana in a purely personal, non-commercial context in the home."[63] This conclusion was reached by applying a test of constitutionality that required courts to decide "whether the means chosen suitably furthered an appropriate governmental interest."[64] As a result of applying this intermediate test, the private use of an illegal recreational drug was held to be protected by a constitutional right in the state of Alaska. Because this decision was so controversial, voters have recently sought to overturn it through the process of initiative and referendum.[65]
    Constitutional law requires that statutory classifications with a disproportionate impact on race must be subjected to strict scrutiny. Until recently, this rationale for applying a heightened level of judicial review seemed to have little application to LAD. However, many states have begun to treat possession of crack as a more serious offense than possession of identical amounts of powdered cocaine. Since blacks are more likely to use crack than powdered cocaine, they tend to be punished more severely than whites. This disparity led a judge in Minnesota to subject that state's crack statute to strict scrutiny. As a result, she overturned this law until scientific rather than merely anecdotal evidence establishes that crack is a different and more dangerous drug than powdered cocaine. Her ruling was upheld by the Minnesota Supreme Court, which said it found little hard evidence to support a distinction between the two substances.[66]
    But these examples represent the exception rather than the rule. Why have heightened degrees of scrutiny been applied so infrequently? The Supreme Court has never provided a coherent explanation of the characteristics that trigger higher levels of judicial review.[67] Infringement of "important" or "fundamental" rights or interests usually gives rise to stricter scrutiny.[68] The unwillingness to assess questions about recreational drug use according to more exacting tests indicates that personal decisions about recreational drug use are not thought to be protected by an important or fundamental right.
    Why are whatever rights may be involved in recreational drug use regarded as so insignificant? Sometimes a policy or practice is so familiar and widespread that it becomes all but impossible to return to a state of innocence and to imagine how strange and peculiar it would appear from the perspective of an outsider. Suppose that a person who did not have a particular issue in mind were asked to prepare a list of general rights that are most important or fundamental in a free society. General rights that could easily be interpreted to protect recreational drug use would be prominent on this list. One such right is the right to determine what happens in and to one's body. Another such right is the right to regulate the ways in which the mind processes the sensory data it receives from the world. According to Laurence Tribe it would seem "preposterous" that courts would allow the state to regulate these rights without applying heightened standards of review. Yet, he adds, "Courts that affirm the power of government to ban the use of such psychoactive substances as marijuana appear to be saying something very much like that."[69]
    Almost no one seems to have cared. As Ethan Nadelmann points out, "Even the civil-liberties groups shy away from this issue."[70] It is easy to interest the American Civil Liberties Union (ACLU) in the question of whether adults should be tested for drug use. But ACLU has little interest in the question of whether and under what circumstances adults should be allowed to use recreational drugs in the first place. These priorities are misplaced. Surely the best reason to oppose drug tests is because adults have a moral right to engage in the very activity the tests are designed to detect.
    Suppose that the state were to interfere with various applications of whatever rights are implicated by LAD. Imagine that the state attempted to regulate dress by forbidding anyone to wear high heels. Or that it attempted to regulate appearance by prohibiting anyone to grow long hair. Compound the difficulty by supposing that these interferences purported to reach private citizens, not just public employees. Even worse, imagine that these regulations applied in the home. In other words, suppose that high heels or long hair were proscribed, even if offenders did not appear in public. It seems clear that the state would need excellent reasons to enact such general legislation and that courts should be encouraged to scrutinize these reasons very carefully. These interferences affect rights that should be placed high on a list of protections in a free society. Why is recreational drug use any different? In Chapter 2, I will explore whether a theory of personal autonomy can be defended that would entitle recreational drug use to a lesser degree of protection than the activities on this list.
    For better or worse, the constitutionality of hypothetical statutes that interfere with decisions regarding dress or appearance, in public or in private, will remain unsettled as long as states do not intrude in these matters. Little constitutional law has developed here precisely because these regulations are so outlandish. Most of the few existing precedents involve attempts to interfere with the dress and appearance of schoolchildren. My examples, however, involve regulations of private citizens that apply even in their own homes. Sometimes, but not always, the fact that laws regulate behavior in the privacy of one's home is constitutionally significant. In numerous cases, courts have held that persons have a right to do in private what they are not permitted to do in public. Surely dress and appearance are entitled to a greater degree of protection in private than in public, and one might naturally expect the same to be true of recreational drug use.
    I do not mean to prejudge how such cases ultimately should be decided. To propose that a given test of constitutionality is appropriate for deciding a case is not tantamount to actually deciding it. My more modest point is that the constitutionality of these laws would and should depend on the stringency of the standard of review by which they are adjudicated. Suppose that the rational basis test, which is presently applied to regulation of drug use, were applied to the hypothetical laws just discussed. It is easy to see why a state might have a rational basis for regulation of dress or appearance. According to Tribe, "History abounds with examples of governments asserting virtually boundless authority over the details of personal appearance and manners."[71] On the streets of our cities, persons are sometimes killed for their sneakers or leather jackets. Suppose that the state responded by prohibiting persons from wearing these clothes. These laws might be constitutional if plaintiffs were required to show that "the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decision-maker." Surely "there exists [a] set of facts which can be shown or which could reasonably be assumed to provide support for the classification." But interferences with dress or appearance should not be accepted uncritically in a free society.
    I do not conclude that an interference with recreational drug use is as objectionable as an interference with dress or appearance. However, I maintain that the larger rights that are implicated by each of these interferences seem to be of comparable importance, so that the same test should be applied to decide their constitutionality. Dress and appearance are and ought to be subject to regulation. The state routinely controls these matters when students, military personnel, police, and fire fighters are involved. Such regulation, however, should be made to satisfy very stringent criteria. The same stringent criteria should be applied to assess the justifiability of interferences with recreational drug use.
    It is unclear whether the objectives sought by LAD could satisfy the more stringent criteria of constitutionality involved in heightened levels of scrutiny. This issue has not been resolved, because the state has been allowed to interfere with the right of adults to use the recreational drug of their choice according to a more lenient standard. What is clear is that plaintiffs would have much greater prospects for success in challenging classifications under the Controlled Substances Act if their allegations were assessed according to a more demanding test.
    Despite the fact that these questions about the Controlled Substances Act raise important constitutional difficulties, I will not further pursue the constitutional dimensions of LAD. Although I am centrally concerned to evaluate arguments for and against the claim that adults have a moral right to use drugs recreationally, I will not attempt to elevate these arguments to the plane of constitutional law. Moral rights should be protected by legal rights, so the existence of a moral right to use recreational drugs would provide an excellent reason to oppose LAD. Still, I will make no serious attempt to argue that any such legal right can be "found" in the Constitution. I am not especially concerned about whether a moral right to use drugs recreationally should be vindicated ultimately by the legislature or the Court.
    I have several reasons for not undertaking a more detailed examination of these constitutional issues. First, David Richards has already made a powerful case that many aspects of LAD are unconstitutional.[72] Although I am suitably impressed by Richards's arguments, the weaknesses of his position are apparent as well.[73] The Constitution makes no explicit reference to drug use. If recreational drug use is entitled to constitutional protection, some existing right must be interpreted to protect it. The right to privacy is the most likely candidate for this constitutional right. Thus two conditions must be satisfied before recreational drug use is entitled to constitutional protection. First, the Constitution must create a right to privacy. Second, this right to privacy must apply to and protect the right to use some or all recreational drugs.
    Neither proposition is beyond controversy. Largely because of the abortion dispute, the very existence of a right to privacy continues to be debated by scholars of constitutional law. The application of any such right to the decision to use recreational drugs is equally unclear. Many different conceptions of the right to privacy have been defended, and only some of them would protect recreational drug use. The Supreme Court seems currently disposed to reject the right to privacy altogether or, more likely, to confine its scope to decisions pertaining to marriage, procreation, and the family.[74] An extended critical discussion of these issues would take us too far afield. I hope that the arguments I will make in favor of a moral right to use recreational drugs can be expressed in constitutional terms, but I will make no serious effort to do so here.
    Still, I cannot refrain from adding one brief twist to the constitutional arguments involving recreational drug use. Many of the social conservatives who are least sympathetic to the decriminalization movement favor a "jurisprudence of original intent." According to this principle of interpretation, the Constitution is to be construed according to the intentions of its drafters. A jurisprudence of original intent is favored largely because it tends to generate results that are congenial to the agenda of social conservatives. For example, the founding fathers tended to be less liberal about most matters of criminal procedure. However, this jurisprudence may produce unacceptable results for drug prohibitionists. Thomas Jefferson was not alone among the founding fathers in opposing state authority to prohibit the use of drugs, medical or otherwise. "Was the government to prescribe to us our medicine and diet," he observed, "our bodies would be in such keeping as our souls are now [under the state church]."[75] Federal control over drug use was widely regarded as unconstitutional as late as 1900.[76] Even in 1937, the Treasury Department prohibited marijuana separately from narcotics because it feared an attack on the constitutionality of the Harrison Act.[77] An effort to apply the original intent of the founding fathers might create surprising difficulties for LAD.
 

RECREATIONAL DRUG USE

No one pretends that drugs are good or bad per se. Trying to decide whether drugs are good or bad is like trying to decide whether fires are good or bad: It depends on the purpose(s) for which they are used. As the examination of the Controlled Substances Act demonstrates, war has not really been declared on drugs. War has been declared on persons who make a certain use of drugs. I will describe this use as recreational. By "recreational use," I mean consumption that is intended to promote the pleasure, happiness, or euphoria of the user.[78] The more specific purposes that are encompassed under this broad umbrella include sociability, relaxation, alleviation of boredom, conviviality, feelings of harmony, enhancement of sexuality, and the like. Although borderline cases are numerous, paradigm examples of recreational drug use are plentiful. Interviews with users indicate that they are most likely to consume drugs on two general occasions. First, they use drugs to attempt to improve what they anticipate will be a good time. Hence drug use is frequent during parties, concerts, and sex. Second, they use drugs to attempt to make mindless and routine chores less boring. Hence drug use is frequent during house cleaning and cooking. I regard these as paradigm examples of recreational use.
    The distinction between recreational and nonrecreational drug use does not purport to sort drugs into categories based on their pharmacological properties. Instead, this distinction sorts drug use into categories. The claim that a given drug is "recreational" can only mean that it is typically used for a recreational purpose. More precisely, "recreational drug" is elliptical for "drug that is used recreationally." Any drug can be, and probably has been, used for almost any purpose.
    The concept of recreational use can be clarified by contrasting it with other purposes for using drugs. The most familiar nonrecreational reason to use drugs is medical. Although most drug use is either recreational or medical, these categories do not begin to exhaust the purposes for which drugs are consumed. Some persons take drugs for the explicit purpose of committing suicide. Others take drugs ceremonially, in the course of religious rituals. Still others take drugs in order to enhance their performance in competitive sports. Undoubtedly this list could be expanded, but I will make no attempt to provide a comprehensive account of the many reasons for using drugs.
    I have two general reasons for focusing on recreational drug use in inquiring whether and under what circumstances adults have or lack a moral right to use drugs. I have already mentioned the first reason. Different justificatory issues arise depending on the purpose for which drugs are consumed. Personal attitudes toward drugs are incomprehensible without attempting to distinguish between legitimate and illegitimate uses. I will evaluate arguments for and against the moral right to use drugs recreationally; I will have little to say about the possible justifications for nonrecreational drug use.
    Second, I hope to avoid commitment on dubious empirical claims that have been made about the benefits of drug use. Anecdotal evidence from members of the "drug culture" suggests that nonmedical drug use may contribute to a variety of purposes that any reasonable person would concede to be valuable. Drugs have been alleged to foster creativity, increase self-awareness, promote artistic inspiration, and the like. Andrew Weil is among the earliest defenders of this point of view. Tired of hearing "users rambling on about the purely hedonistic aspects of drug experience," Weil sought to set the record straight by describing how "altered states of consciousness have great potential for strongly positive psychic development."[79] He proceeded to elaborate upon these alleged benefits in great detail.
    Some critics of LAD believe that the pendulum may have swung too far in the other direction. Bruce Alexander claims that "the rhetoric of the resisters [in the war on drugs] celebrates, and typically overstates the virtues of drugs in personal development and growth."[80] Many an insight one had judged profound while intoxicated turns out to be less impressive when evaluated while sober. Perhaps the claims made by Weil are true, or perhaps they are false. In either event, my arguments in favor of the moral rights of adult drug users will not depend on them. The arguments I will evaluate allege no greater benefits of drugs than that many users regard them as enjoyable. This benefit, I think, is virtually immune from empirical falsification. If users sincerely believe that drugs are pleasurable, no empirical evidence is likely to prove otherwise.
    For reasons that are deep and mysterious, many persons become apologetic and defensive about arguing in favor of a right to engage in an activity simply because it is pleasurable. Apparently the pursuit of fun is perceived to be so shallow and trivial that many persons feel obliged to find some other basis to defend their choice. Suppose that someone challenged whether the state should permit adults to engage in a given dangerous activity, such as skiing. According to the line of thought I reject, skiing should not be defended because it is exhilarating but because of some tangible benefit it produces. For example, a defense might appeal to the cardiovascular advantages of skiing. However, this strategy divorces the justification of the activity from the reason why most person perform it. Persons would continue to ski, and would oppose state interference, even if skiing did not increase their fitness. Many skiers would resort to cardiovascular benefits as a pretext to publicly criticize what they would privately resist for wholly different reasons.
    Nowhere is this peculiar tendency to attach nonrecreational defenses to recreational pursuits more evident than among drug users. Many express guilt about their indulgence, insist that they use drugs only for "serious" purposes, and show disdain for those who want to get "high" and experience only the sensual effects of drugs.[81] But the production of euphoria should not be regarded as an insignificant benefit. Even if illegal drug use does nothing more than induce immediate gratification, good reasons would be needed to prohibit it. If drug use happens to produce more profound advantages, the case against LAD is that much stronger.
    Only rarely do authorities acknowledge that the euphoria of recreational drug use might be valuable. A federal district court judge, Robert Sweet, shocked his colleagues by calling for the decriminalization of all illicit drugs. After reciting some of the cost-benefit advantages of decriminalization, he continued: "Cocaine gives a sense of exhilaration, heroin a glow, a warmth, and marijuana a sense of relaxation and ease. What then is wrong?"[82]
    Nonetheless, my attempt to confine the context of discussion to the recreational use of drugs is not entirely unproblematic. Weil has challenged the viability of distinctions between the several purposes for which drugs apparently are consumed. He claims that "the desire to alter consciousness periodically is an innate, normal drive analogous to hunger or the sexual drive."[83] The "omnipresence of the phenomenon" of drug use in various societies throughout human history has led him to conclude that "we are dealing... with a biological characteristic of the species."[84] Behavior that satisfies a biological need cannot be understood as a purely recreational form of activity, comparable to scuba diving or mountain climbing.
    More recently, a variation of this basic theme has been developed by Ronald Siegel. Studies of animal behavior persuade him that "we must expand the definition of self-medication to include drug use for purposes of intoxication."[85] Siegel believes that even the most dangerous of intoxicants really function as medicines.[86] He contends that the distinction between medical and nonmedical drug use should be dissolved in favor of conceptualizing drugs as "adaptogens," defined as "substance[s] that help people to adjust to changes in their physical or physiological environments."[87] Thus Siegel denies a principled distinction between the use of "esterene, to alleviate the pain and depression of arthritis," and the use of "heroin, to fight the gloom and despair of consciousness."[88]
    The majority of Americans who do not question the legitimacy of the war on drugs will surely dismiss these remarks out of hand. Yet these attacks on the traditional distinction between medical and nonmedical drug use are stubbornly resistant to a quick refutation. A plausible criterion of medical use is easy to state: The use of a drug is medical if it is intended to treat a disease, illness, injury, or other interference with normal functioning. But this criterion is less easy to apply. Difficulties in determining whether a given incidence of drug use is medical result from uncertainty about whether the condition for which a drug is taken qualifies as a disease, illness, injury, or other interference with normal functioning. An attempt to identify drug use as medical by reference to the standard practice of doctors is obviously inadequate to meet Siegel's challenge. Siegel would demand a deeper explanation of how doctors make their decisions. Drug use does not become medical because of what doctors do; rather, doctors do what they do because of some characteristic(s) in virtue of which their use of drugs qualifies as medical.
    Millions of Americans consume caffeine in order to combat drowsiness and lethargy, or drink alcohol in order to relax and relieve stress. As a housewife lamented: "I have four children and a house to clean. I couldn't get through the day without Dexedrin."[89] Can any of the conditions that lead these Americans to consume drugs be construed as a disease, illness, injury, or other interference with normal functioning, so that their drug use can be labeled as medical rather than as recreational? The answers to these questions may seem simple. Neither doctors nor the public would classify moderate lethargy or stress as medical conditions. But it is precisely these judgments that need to be reevaluated. In the absence of a theory about disease, illness, injury, or abnormality, there is no firm basis to decide whether the use of a substance is medical. A narrow conception of "normal functioning" will expand the range of medical drug use and shrink the range of recreational drug use proportionately. As James Bakalar and Lester Grinspoon argue:

When we talk about the dangers to health caused by drugs, we tend to use the broadest possible definition of health to justify the strongest restrictions. When we establish legitimate purposes for using drugs, of which health is obviously one, we try to define health narrowly so that again we can justify severe restrictions. Health as positive liberty—total well-being—is a legitimate reason for banning drugs but not for using them.[90]

    If the perspectives taken by either Weil or Siegel are correct, a critical examination of the moral right to use recreational drugs becomes both too difficult and too easy. On the one hand, it seems clear that the war on drugs must be completely rethought if all drug use is medical and responsive to a biological drive. The state should not be in the business of frustrating the satisfaction of innate needs. On the other hand, these positions are of no help in evaluating the reason why many people at least claim to use drugs. It is one thing to consume drugs to combat the alleged "gloom and despair of consciousness," but what is to be said about the drug use of adults who do not regard life as so dismal? Those who support their drug use because it is euphoric are unlikely to be thankful for a defense that construes their behavior as responsive to an underlying pathology. Thus I will continue to discuss the moral and legal questions that arise in recreational drug use. I propose to evaluate the justifiability of laws prohibiting adults from using drugs for the express purpose of increasing their pleasure or happiness.
    Undoubtedly my focus on recreational drug use will give rise to the criticism that my approach is academic, middle class, and unresponsive to the realities of drug use in impoverished neighborhoods. Drug use in ghettos, it will be said, is not recreational. The less fortunate members of our society do not use drugs to facilitate their enjoyment at concerts but to escape from the harsh realities of their daily lives. Here, at least, gloom and despair play a central role in explaining the high incidence of drug use.
    In fact, the black community has expressed little enthusiasm either for the war on drugs or for drug decriminalization.[91] But theorists who favor one approach or the other divide, sometimes bitterly, over the implications of decriminalization for the lower classes. According to Nadelmann, "The minority communities in the ghetto" would be "the greatest beneficiaries of repealing the drug laws."[92] Other theorists reach the opposite conclusion. Since drug use is a "mode of adaptation" to the "disadvantages of ghetto life," James Inciardi and Duane McBride contend that drug legalization "would be a nightmare" for the underclass.[93] They express their verdict in the strongest possible terms: "The legalization of drugs would be an elitist and racist policy supporting the neocolonialist views of underclass population control."[94]
    Several replies to this criticism should help to defend my focus on recreational drug use. First, I explore decriminalization as a means to protect moral rights, not as a policy to improve conditions in ghettos. The utilitarian tone in which this debate is usually cast ignores the perspective of the individual. Members of lower classes have rights too. If they choose to use drugs to help make their desperate situation more bearable, members of privileged groups should be uncomfortable about telling them that they may not. No one proposes to ban alcohol because members of lower classes tend to drown their sorrows rather than to sharpen their palates. Moreover, a strategy of decriminalization should not be advocated as a substitute for redressing the genuine grievances of minorities.
    Finally, the empirical facts are ambiguous in proving that illegal drug use is a special problem for the black community.[95] Only 20 percent of all illegal drug users are black.[96] Whites are more likely than blacks to have tried illegal drugs, and cocaine in particular, at some time in their lives.[97] The more drug prohibitionists succeed in portraying drug use as a ghetto phenomenon, born of frustration and despair, the easier it is to lose sight of the repudiation of liberal values that LAD entails. As I will emphasize time and time again, too much of our policy about illegal drug use is based on generalizations from worst-case scenarios that do not conform to the reality of typical drug use. I hope to undermine the inaccurate stereotypes of drug use and drug users reinforced by this objection. LAD prohibits drug use by members of all races and classes; a legal policy applicable to all should not be based on the perceived problems of a few.

 

THE DECRIMINALIZATION MOVEMENT

    Intelligent opposition to the war on drugs is increasingly heard. Academics, insulated from political pressure by the tenure system, have been more vocal in questioning the drug war than public officials, who remain accountable to voters. Nonetheless, a few politicians, including Kurt Schmoke, mayor of Baltimore, and George Schultz, former secretary of state, have joined Nobel economist Milton Friedman and conservative pundit William Buckley in advocating the decriminalization of some or all illegal drugs.
    The decriminalization movement brings together strange allies who are far apart in their political ideologies. Despite fundamental differences, almost all decriminalization theorists begin from the same premise: America is losing the war on drugs. Our approach to the drug problem is ineffective and counterproductive. It has not and will not succeed, and it actually compounds many of the problems it is designed to solve. Since I hope to shift the focus away from utilitarian arguments to issues of principle, I will only summarize the allegations of decriminalization theorists here. In subsequent chapters, I will return to several of their criticisms insofar as they have a bearing on the questions of whether and under what circumstances adults have a moral right to use drugs recreationally.
    The first of two related themes that run through the decriminalization literature is that the war on drugs is and always will be futile. Many theorists who defend this conclusion begin (and sometimes end) by stressing economic considerations. They argue that most of the tens of billions of dollars spent by the criminal justice system to enforce LAD has been wasted. Despite the numbers of drug traffickers arrested and the volumes of contraband seized, the supply of drugs available to consumers, as reflected by street price, remains relatively unchanged. Nadelmann's conclusion is especially pessimistic: "Criminal justice efforts to stop drug trafficking... have little effect on the price, availability, and consumption of illicit drugs."[98] Besides saving billions of dollars currently squandered in law enforcement, the decriminalization of illegal drugs would bring additional economic rewards. Depending on the price of legalized drugs, their sale could allow the state to collect vast tax revenues.
    Attempts to curtail the supply of illegal drugs are bound to fail. Efforts to eradicate production are doomed because of what has been called the "push down, pop up" effect: As drug supplies are destroyed here, they reappear there. The prospects for marked improvement in the interdiction of imported drugs are remote and unrealistic. Because of the "needle-in-a-haystack" phenomenon, commentators estimate that only about 10 percent of imported marijuana and cocaine is seized.[99] Since much of what is interdicted is replaced, administration officials admit that imports of cocaine have not been reduced by more than 5 percent.[100] No one thinks that our overmatched customs agents can do much better. In any event, improvements would probably accomplish little. Even dramatic increases in source control and interdiction would have a limited impact on the price and purity of drugs.[101]
    Somewhat more success has been achieved by curbing demand. Despite reports of unprecedented availability of cocaine, the percentage of high school seniors who used cocaine in 1990 tumbled to its lowest level since 1976.[102] The public appetite for drugs has steadily declined throughout the last decade, although there is room for disagreement about the extent to which law enforcement has contributed to this trend. The use of legal drugs, most notably tobacco, has decreased noticeably with little input from the criminal justice system.
    The second theme that runs through the writings of the decriminalization theorists is that the war on drugs has been counterproductive. Many commentators claim that the evils of criminalization are greater than the evils of drug use itself, so that the "cure" of law enforcement is worse than the "disease" of drug use. I will briefly describe fifteen of their more specific allegations; I will not quibble about whether this list should be lengthened or shortened.
    1. The drug trade has created enormous opportunities for organized crime. The billions of dollars spent in law enforcement have been described as a "subsidy" for criminals.[103] A report by Wharton Econometrics for the President's Commission on Organized Crime identified the sale of illicit drugs as the source of more than half of all organized crime revenues.[104] The involvement of organized crime has led to well-publicized levels of violence that have become everyday fare in the drug trade. Black marketeers have no recourse to legal devices to enforce agreements and to settle disputes; they must resort to force more often than competitors in legitimate businesses. Some theorists predict that decriminalization will all but end the extraordinary violence associated with the illegal drug trade. According to James Ostrowski: "The day after legalization goes into effect, the streets of America will be safer. The drug dealers will be gone. The shootouts between drug dealers will end."[105]
    2. Enormous profits have made widespread corruption in law enforcement all but inevitable. One "conservative estimate" is that "at least 30 percent of the nation's police officers have had some form of involvement with illicit drugs since becoming employed in law enforcement."[106] The motivation for succumbing to corruption will remain overwhelming, as long as staggering sums of money are offered as an alternative to risking one's life in ineffective efforts to prevent relatively minor offenses.
    3. Many drugs tend to be expensive not because of their production costs, but because of their illegality. According to one estimate, the price of heroin is approximately two hundred times greater than it would be under a free market of supply and demand,[107] and cocaine is perhaps twenty times more expensive.[108] As a result, many users commit property offenses in order to obtain money to buy drugs.[109] Legal drugs would be cheaper, so users would be less likely to commit crimes to purchase them.
    4. Removal of the enormous profits in the sale of illegal drugs might motivate persons to better prepare themselves to make an honest living. Adolescents are not easily persuaded to gain an education or to learn a skill when they believe, whether correctly or not, that drug trafficking provides an easy opportunity for instant wealth and prestige. Obscene drug profits have made a mockery of the work ethic.[110] The existence of a lucrative black market for drugs may have contributed more to a deterioration in education than the effects of drugs themselves.
    5. Illegality has had a pernicious impact on the supply and mode of ingestion of illegal drugs. According to what one commentator describes as the "iron law of prohibition,"[111] the potency of illegal drugs is increased to the greatest possible level in order to reduce the size of the container and the risks of interdiction. The average purity of a gram of cocaine has allegedly increased from about 12 percent to 60 percent since 1980, at the same time that the potency of most alcoholic beverages in America has decreased.[112] The so-called cocaine and crack epidemics have been blamed on the government's modest success in interdiction. Less harmful drugs, such as marijuana, happen to be bulkier and easier to intercept than more harmful drugs, such as cocaine, so suppliers switched production in an effort to evade detection. In addition, illegal drugs are used in more harmful ways because they are so precious. According to John Kaplan, the injection of opiates is virtually unknown in Asian countries, where supplies are easily obtainable and less expensive.[113]
    6. Prohibition may glamorize drugs by creating the "forbidden fruit" phenomenon. Illegality stimulates curiosity and desire, especially among persons who regard themselves as unconventional and rebellious. As Jon Gettman explains the decline in use after the de facto decriminalization of marijuana in the Netherlands, "Decriminalization of marijuana makes marijuana boring."[114]
    7. The interest in minimizing availability has discouraged illegal drugs from being used for legitimate medical purposes. Lawyers for the National Organization for the Reform of Marijuana Laws (NORML) have failed to persuade the Drug Enforcement Agency to transfer marijuana to a higher schedule, so that doctors may prescribe it to patients suffering from debilitating diseases such as cancer, glaucoma, and multiple sclerosis. Some theorists suggest that the lack of opportunity to explore legitimate uses of controlled substances is among the greatest casualties of the drug war.[115]
    8. The medical complications of drug consumption have been compounded by criminalization. As Nadelmann points out, "Nothing resembling an underground Food and Drug Administration has arisen to impose quality control on the illegal drug market and provide users with accurate information on the drugs they consume."[116] Thus persons have smoked marijuana sprayed with paraquat and mixed with even more dangerous substances, and heroin users have died after injecting unexpectedly potent or impure supplies. Many of these fatalities are avoidable, but publicizing safe ways of using drugs is politically unacceptable during wartime.[117] In addition, drug users are reluctant to seek treatment because of the stigma of illegality. The night that basketball star Len Bias died of heart failure after using cocaine, his friends, fearing the police, waited until his third seizure before calling an ambulance.[118]
    9. Courts and jails have become clogged as a result of "get-tough" policies toward drug offenders. The impact of drug offenses has led a number of commentators to speak of a collapse of the criminal justice system. Federal courts have become "drug courts," where narcotics prosecutions now account for 44 percent of all criminal trials, up 229 percent in the past decade.[119] In many jurisdictions, delays in criminal cases not involving drugs or in the adjudication of civil disputes have become intolerable. The number of Americans behind bars has recently exceeded the one million mark and sets new records every day. Prisons cannot be built fast enough to accommodate drug offenders. At last count, forty state prison systems were operating under court orders to reduce overcrowding or to improve conditions.[120] A report by the National Council on Crime and Delinquency concluded that "the current War on Drugs will overwhelm the nation's correctional systems over the next five years."[121] Mandatory sentencing under LAD may undermine efforts to combat violent crime. As a result of overcrowding by nonviolent drug offenders, violent criminals are less likely to serve long prison terms.
    10. Disrespect for law has been fostered among the millions of Americans who violate LAD annually. The long-term consequences of this disrespect are speculative and impossible to measure precisely, but no one should believe them to be trivial or unimportant. Hypocrisy and double standards are corollaries of disrespect.[122] Many drug prohibitionists have lost credibility after having been exposed as drug users. Yet President Bush downplayed the significance of the former drug use of Clarence Thomas, who he named to the Supreme Court, only weeks after the Court upheld a sentence of life imprisonment without parole for the offense of drug possession.
    11. A long history of misinformation and distortion about the dangers of drugs has led wary users to become skeptical of the accuracy of warnings conveyed by the medical establishment. Drug prohibitionists have felt a need to exaggerate the dangers of existing recreational drugs in order to justify their illegality. Commentators have noted an "irreparable credibility gap between users of drugs and drug experts" since the late sixties.[123] Consider the recent popularity of steroids, performance-enhancing substances used by perhaps a quarter million or more American youths. Despite ample warnings about their dangers, 82 percent of adolescent users disagreed with medical experts who said that steroids pose long-term health risks, such as liver and heart disease.[124] Perhaps the experts are correct, or perhaps they are mistaken. But this climate of distrust cannot be in the public interest. If a drug really is harmful, one would hope that users would believe doctors who sound the alarm. Decriminalization may help to produce more accurate information about the real hazards of drug use.
    12. Among the more serious effects of prohibition is discrimination against the poor, who increasingly consume a higher and higher percentage of illegal drugs. Although two-thirds of weekly drug users in New York State in 1987 were white, 91 percent of the persons convicted and sentenced to state prison for drug-related offenses were either black of Hispanic.[125] Therapeutic treatment is frequently provided for middle- and upper-class users; prison is the preferred mode of "treatment" for the underprivileged.
    13. The foreign policy of the United States has suffered untold damage from the war on drugs. In particular, our relations with Central and South American governments have been distorted by our drug policy.[126] All too frequently, both sides in foreign drug wars are funded by U.S. dollars.
    14. The enforcement of LAD has diminished precious civil liberties. Defense lawyers openly acknowledge the "drug exception" to the Bill of Rights.[127] David Evans complains that "martial law has been declared in our inner cities."[128]
    15. Finally and most significantly, the war on drugs is counterproductive in making criminals of tens of millions of Americans whose behavior is otherwise lawful. Most drug users are lucky to escape detection. Others are less fortunate. Countless numbers of offenders have been forced to suffer long terms of imprisonment for violating laws that may not be morally justified. Even those who are eventually acquitted spend tremendous sums of time and money defending themselves in court.
    Many law enforcement officials who participate in this draconian system have become demoralized. The U.S. district court judge J. Lawrence Irving resigned rather than continue to impose harsh mandatory punishments on petty drug offenders. He lamented: "I can't continue to do it—I can't continue to give out sentences that I feel in some instances are unconscionable."[129] Another federal judge wondered whether in years to come he and his fellow jurists will have to assert the "Nuremberg Defense"—"I was only following orders"—to justify the number of people they are sentencing to prison for decades.[130]
    Surely this sizable litany of evils must trouble even the most zealous drug prohibitionist. But do these harms outweigh the good that the war on drugs can be expected to achieve in the foreseeable future? Commentators disagree radically. Since an assessment of the cost and benefits of drug policy requires clairvoyance as well as a willingness to balance incommensurables, reasonable minds can and do differ about whether the war on drugs is worth its cost.
    The perspective of these decriminalization theorists is a valuable supplement to my own. However, I do not rely on the conclusion that criminalizing the use of many drugs is either ineffective or counterproductive. Critics who insist that the war is futile would be silenced if some clever new strategy could be devised to change the existing ratio of costs and benefits. Would such a discovery persuade these critics to shift their allegiance and join the crusades of drug prohibitionists? If not, why not?
    These rhetorical questions indicate that a cost-benefit attack on LAD is necessarily incomplete. The preceding analysis fails to address the war on drugs from the perspective of the adult who wants to use drugs recreationally. The complaint of this individual is not that drug prohibition is ineffective and counterproductive, but that it violates moral rights. This issue is not simply different; it is more basic than that raised by an examination of costs and benefits. Few theorists prepare cost-benefit analyses of issues involving moral rights. For example, no one inquires whether television produces a net balance of costs over benefits, as part of a movement to make watching television illegal. Why not? Surely the answer cannot be that television obviously produces a net benefit to society. A better answer is that persons have a moral right to watch television, and cost-benefit analyses are compelling arguments for criminalization only for those activities unprotected by a moral right. If recreational drug use is protected by a moral right, cost-benefit analyses for criminalization are simply out of court.
    In other words, the foregoing arguments lack the force of principle that philosophers should want. Even if victory were possible in the war on drugs, should victory be sought? This is the issue of principle I propose to address.

 

ARGUMENTS FOR CRIMINALIZATION

    Defenses of and attacks against arguments for decriminalization have become so familiar that it is easy to forget that the burden of proof should be placed on those who favor the use of criminal penalties. When arguing about criminalization, most philosophers begin with a "presumption of freedom," or liberty, which places the onus of justification on those who would interfere with what a person wants to do.
    Although it is helpful to be reminded of the existence of this presumption, I make no real use of it in what follows. The case for or against LAD depends on which side has the better arguments; there is no need to resort to a burden of proof in assessing this controversy. In any event, a second and equally familiar presumption cuts in the opposite direction. A "presumption in favor of the status quo" allocates the burden of proof on those who oppose any change in current laws against the use of recreational drugs. No one has any clear idea about what weight to assign to these "clashing presumptions."[131] For this reason, it is probably unproductive to worry too much about who should bear the burden of proof on this issue.
    Arguments for criminalization are important to review, if only to follow the advice of John Stuart Mill. Mill warned that even a true opinion becomes held "as a dead dogma not a living truth," unless it is "fully, frequently, and fearlessly discussed."[132] Even those who believe that LAD is obviously justified can profit from a skeptical examination of their position. Unfortunately, many of those whose commitment to LAD is unwavering do not take Mill's recommendations to heart and are unwilling to be drawn into the fray. Several are unhappy when the issue of decriminalization is raised at all. In 1989, the Select Committee on Narcotics Abuse and Control solicited testimony from thirty-four witnesses who debated the pros and cons of LAD. Michael Oxley, a member of this committee, echoed the sentiments of several of his colleagues when he protested that "the idea of legalization should not even be dignified" with a hearing.[133] As Mill cautioned, the absence of debate is the best guarantee that a viewpoint will become a prejudice. Defenders of LAD have been spared the rigors of Mill's test for too long.
    Why is LAD thought to be justified? Theorists who uphold the status quo in public debates seldom answer this question directly. Instead, they are fond of challenging their adversaries to describe specific and detailed decriminalization plans. Two of their more difficult questions are as follows. First, would the system of prescriptions for medical drugs survive the decriminalization of recreational drugs? Second, who would supply legalized recreational drugs, given the extraordinary potential for tort liability?[134] These questions are important and troublesome. On the other hand, defenders of LAD have not been especially forthcoming in describing how victory in the war on drugs can be achieved at an acceptable cost. John Lawn, former administrator of the Drug Enforcement Administration, observes that "the real answer to the drug problem in the United States today is not legalization. Character reconstruction, not the dismantling of drug laws, is the answer."[135] Unfortunately, no one has the slightest idea how to reconstruct character in a free society. If put forward by decriminalization theorists, this sort of "solution" to the drug problem would be ridiculed as utopian and unrealistic.
    A positive case for LAD is not equivalent to exposing weaknesses in the opposing point of view. If those who support existing drug legislation can be made to give a direct reply to the question of why they believe LAD to be justified, they are likely to provide different answers. The fact that several distinct responses are offered to a single question may be evidence of ambivalence and confusion. I am not especially interested in removing this confusion by playing the devil's advocate. I do not believe that the following discussion is useful only in producing better reasons than are currently available for what is already known to be true. I will conclude that a careful assessment of the moral arguments in favor of LAD reveals a number of serious defects. Reasonable minds will differ about whether LAD deserves support despite these defects. But I hope at least to shake the confidence of those who believe that the justification of LAD is straightforward and unproblematic.
    How should one begin to decide whether a given criminal law is justified? There is a surprising dearth of sound theoretical literature on the issue of criminalization. Few commentators have attempted to describe the conditions that must be satisfied before an activity becomes eligible for punishment. In the absence of a sophisticated theory to govern the criminalization decision, solutions to almost every social problem are sought within the criminal justice system. No one has produced a theory to show why the criminal justice system should not be used to deal with any and all difficulties. An unwillingness to criminalize an activity is misconstrued as a denial that it is a problem at all. As a result, our state suffers from a crisis of overcriminalization. Drug use has long been cited among the best examples of the pernicious tendency to overutilize a penal approach to social problems.[136]
    There is no agreement about even the most basic points involving criminalization. For example, it may seem obvious that the criminal law should not prohibit conduct that persons have a moral right to perform. Individuals cannot deserve to be punished for exercising their moral rights. Punishment is unjustified unless it is deserved. If these basic tenets are true, those (legislators and judges) who make the criminal law cannot afford to ignore moral debate. Yet few of the most distinguished figures in the long history of Anglo-American criminal theory have paid much attention to moral philosophy. They have been more anxious to downplay, rather than to develop, the connections between criminal law and moral philosophy.[137] Against such a historical background, moral rights are less likely to be respected by our criminal law. I fear that this lack of respect has been shown to adults who use drugs recreationally.
    Another largely unexplored issue involves the degree of social consensus that must exist before criminal legislation is justified. Surely the criminal law should not be used if there exists a substantial difference of opinion among citizens about the propriety of the behavior to be punished. Perhaps the difficult question Whose morality should the criminal law enforce? cannot be answered, but it can be avoided by assuring that offenses are believed to represent immoralities by the vast majority of adults within a given jurisdiction. Reflection on the justification of punishment supports this conclusion. Punishment is and ought to be stigmatizing; it can succeed only if the conduct subjected to punishment is widely regarded as morally wrong.
    The application of these principles to LAD produces some disturbing results. Those who support the status quo frequently point to public opinion surveys that indicate that somewhere between 80 percent and go percent of Americans believe that illegal drug use should continue to be criminalized.[138] But these polls are even more useful to decriminalization theorists. By either figure, at least 10 percent of Americans—upwards of twenty million—do not accept LAD. Only 50 percent of high school seniors (admittedly, the largest percentage yet) agree that marijuana use "should be a crime."[139] And the enthusiasm of those who support LAD is not especially deep. In a recent survey, only 46 percent of all respondents "strongly agree" with the statement that "all drug use is immoral and should be illegal"; 15 percent "somewhat agree"; 17 percent "somewhat disagree"; and 18 percent "strongly disagree."[140] It is absolutely unthinkable that surveys of attitudes about any other laws enforced by severe punishments would reveal as high a percentage of Americans who are not emphatic about whether the use of the criminal sanction is justified. No movement exists to decriminalize murder, manslaughter, rape, arson, armed robbery, or any of the other handful of offenses that give rise to punishments comparable to those imposed on drug offenders. Although it is hard to know exactly where lines should be drawn, LAD seems to lack the overwhelming public consensus needed to justify the heavy hand of criminal punishment.
    I assume without much argument that a respectable defense of criminal legislation must demonstrate that it is needed to prevent harm. Everyone agrees that persons lack a moral right to cause harm, so criminal laws that prohibit harmful conduct do not violate the basic principles I have described. Punishment of a person who causes harm can be justified by reference to the offender's desert. But in the absence of harm, criminal sanctions are undeserved and unjustified.
    The least controversial rationale in favor of criminalization is that the conduct to be prohibited is harmful to others. Many legal philosophers, following the lead of Mill, believe that harm to others is a necessary condition that any criminal law must satisfy in order to be justified. This position has been defended most ably by Joel Feinberg, from whose work I will borrow extensively.[141] I will consider in Chapter 3 whether and to what extent LAD can be defended on the ground that drug use is harmful to others. A more controversial rationale in favor of criminalization is that drug use should be prohibited because it is harmful to users themselves. Although a number of philosophers are unsympathetic to this rationale, paternalistic arguments in favor of LAD are frequently defended. I will take these arguments seriously in Chapter 2.
    One common complaint about my strategy is misguided. Many philosophers are quick to point out that "no man is an island" and that whatever harms oneself also harms others or at least is capable of doing so. Perhaps there are no examples of "pure" or "unmixed" paternalism, that is, of an interference with liberty that is justifiable solely on the ground that the conduct to be prohibited harms the doer. I do not maintain otherwise. I do not suppose that a given activity can harm the doer but not others. The distinction between harm to oneself and harm to others is not a distinction between kinds of laws, but rather it is a distinction between rationales for laws. Any law might be defended by more than one rationale. I do not treat people as islands in using the distinction between harm to oneself and harm to others as an analytical device to help identify the best reasons for LAD. The paternalistic rationale for LAD may be stronger than the nonpaternalistic rationale, or it may be weaker. In either event, the distinction between harm to oneself and harm to others must be drawn in order to evaluate each of the arguments in support of LAD.
    In the remainder of this section, I will briefly comment on two alternative rationales for LAD that I will not take very seriously in the following chapters. My premise that the use of the criminal sanction should require harm can be questioned.[142] Perhaps arguments can be marshaled in support of LAD that do not depend on harm, either to oneself or to others. According to legal moralism, the wrongfulness of conduct per se, apart from its harmful effects, is a sufficient reason to impose criminal punishment.
    Many drug prohibitionists resort to legal moralism in support of LAD. Bennett replies to the cost-benefit analyses of decriminalization theorists as follows: "I find no merit in the legalizers' case. The simple fact is that drug use is wrong. And the moral argument, in the end, is the most compelling argument."[143] There can be no doubt that popular objections to illegal recreational drug use are often couched in the strongest possible moral terms. Drug use is frequently portrayed as sinful and wicked.[144] Even an astute commentator like Kaplan admits that "I cannot escape the feeling that drug use, aside from any harm it does, is somehow wrong."[145]
    For two reasons, however, I will have little to say about legal moralism here. First, this principle is extremely problematic. No one has presented a compelling case in favor of legal moralism; responses from philosophers have been almost entirely negative.[146] One recurrent theme of their attack is that legal moralism might be used to enforce community prejudice. The requirement that criminal liability presupposes a victim who has been harmed helps to assure that persons will not be punished simply for doing what those with political power do not want them to do.
    Second, the application of legal moralism to LAD is utterly baffling. Why would anyone believe that drug use per se is immoral, apart from any harm it might cause? David Richards is right to suggest that these beliefs are "entitled to a respectful hearing."[147] The trick is to translate them into respectable moral arguments that can provide the basis for criminal legislation in a secular state. As long as moral reservations about drug use are presented as unsupported conclusions—or as feelings—they will prove resistant to criticism. Arguments, not conclusions, are the objects of philosophical evaluation.
    What, exactly, do drug prohibitionists believe to be immoral about recreational drug use? Two alternatives are possible. Does the alleged wrong consist in the act of drug use per se, or in the alteration of consciousness that drug use produces? The former alternative seems unlikely. Suppose that the physiology of persons were altered so that a given drug no longer produced any psychological effect. Could anyone continue to believe that the use of that drug would still be immoral? In any event, contemporary Americans widely reject the view that the act of drug use is inherently wrong. Few condemn the moderate use of alcohol. The subdued moral opposition to alcohol heard today is light years away from the level of outrage expressed by zealots during the temperance movement.
    The latter alternative seems no more attractive. Why should the alteration of consciousness produced by drug use be immoral, apart from any harm that might result? Some theorists have proposed that practices such as long-distance running and meditation can trigger natural neurological reactions that alter consciousness in respects that are phenomenologically indistinguishable from the effects of drug use.[148] No one has suggested that such practices are immoral, and for good reason. There is ample reason to doubt that harmless experiences are among the kinds of things that can be immoral.
    Perhaps many Americans share a vague conviction that some but not all ways of altering consciousness, by the use of some but not all drugs, is immoral. If this conviction could be defended, the particular experience of alcohol intoxication might be upheld as morally permissible, whereas the experiences of intoxication produced by various illegal drugs could be condemned. As it stands, however, this conviction is a conclusion in search of an argument. Typically, persons appeal to harm, either to oneself or to others, in attempts to differentiate between intoxication from alcohol and intoxication from illegal drugs. In this guise, the argument should be taken seriously. What is less clear is how to understand a version of this argument that does not appeal to harm. The terrain here is so uncertain that no one should have any clear idea about how to proceed.
    Arguments that illegal recreational drug use is immoral have been developed, if at all, almost exclusively by those who have rejected them. Richards may be the only philosopher to have addressed these arguments in detail.[149] According to Richards, moral objections to the experience of drug use originate in an "Augustinian philosophy of the self"; drug use is depicted as "degrading" because it frustrates "the competent exercise of certain personal abilities," which this tradition values.[150] The most important of these abilities is self-control.
    Richards responds that drugs allow users to "regulate the quality and versatility of their experiences in life to include greater control of mood."[151] Alexander concurs: "Drugs, as they are normally used, increase people's autonomy and power. People use drugs to make themselves alert when they need to be alert, and to make themselves relax when they want to relax, and so on."[152] To this extent, the use of drugs expresses and increases self-control rather than undermines it. To be sure, the ability to control when to use or not to use a drug may be compromised by addiction. I will discuss the implications of addiction for the justifiability of LAD in Chapter 2. But both Richards and Alexander are persuasive in arguing that the use of recreational drugs by nonaddicts can increase rather than decrease their self-control.
    Moral objections to drug use might also be derived from an ideal of human excellence. Drug use might not be conducive to the attainment of a particular conception of virtue. These arguments are frequently endorsed by drug prohibitionists. According to Bennett, "Drug use degrades human character, and a purposeful, self governing society ignores its people's character at great peril."[153] James Q. Wilson confines his virtue-based arguments to illegal drugs: "Tobacco shortens one's life, cocaine debases it. Nicotine alters one's habits, cocaine alters one's soul."[154] What conception of virtue is employed here? The Christian tradition, for example, identifies virtue with a personal imitation of Christ, emphasizing extraordinary sacrifice in the service of others. According to this tradition, drug use, like any other recreational activity, is suspect. Recreational activities are nonaltruistic and self-indulgent.
    Richards rejects all such arguments on the ground that no particular conception of virtue will gain the universal assent of rational persons.[155] Suppose, however, that drug use were to conflict with whatever conception of human excellence is eventually accepted. What would follow from this concession?
    The answer is that virtue-based arguments fail to support criminal punishment for recreational drug use. Bennett is correct that a society should not "ignore its people's character." But it does not follow that the protection of character is an appropriate objective of the criminal law. The prohibitions of the criminal law describe the minimum of acceptable behavior beneath which persons are not permitted to sink. Virtue-based considerations cannot be used to show that moderate self-indulgence, as well as any temporary impairment of rationality and autonomy brought about by most incidents of drug use, fall below this permissible level. The criminal law should not enforce a particular conception of human excellence, however attractive it may be. A theory of virtue might be applied to subject drug use to moral criticism. As I will emphasize in Chapter 4, opponents of LAD need not believe that drug use is beyond moral reproach. But no one should think that persons deserve to be punished as criminals because their behavior falls short of an ideal.
    A second possible defense of LAD that does not appeal to harm is described by Zimring and Hawkins as legalism. They express the core of legalism as follows: "The taking of drugs prohibited by the government is an act of rebellion, of defiance of lawful authority, that threatens the social fabric."[156] According to legalists, the consumption of any illegal drug represents a "threat... to the established order and political authority structure."[157]
    Legalism is not simply a logically possible position someone might adopt on behalf of LAD. Zimring and Hawkins allege that "the legalist perspective is the dominant orientation of the law enforcement community in the United States."[158] They document how legalism is presupposed by the National Drug Control Strategy during Bennett's tenure in the Office of the National Drug Control Policy. These theorists endeavor to explain how legalism accounts for at least four of the most salient features of the war on drugs. First, it explains why illegal drugs, rather than alcohol and tobacco, are targeted. Second, it explains why all illegal drugs, such as marijuana and crack, are treated as equally objectionable. Third, it explains why harsh punishments are applied even to casual users. Finally, it explains why illegal drug use per se, rather than the harmful effects that drug use cause, is regarded as the main problem.
    Zimring and Hawkins are anxious to demonstrate how legalism represents an unwise and inefficient premise for a rational drug control policy. They succeed admirably, subjecting each of these four characteristics of the war on drugs to penetrating criticism. What they fail to address is the total bankruptcy of legalism as a plausible justification for LAD. Surely it is possible to oppose a law without opposing the legitimacy of political authority itself. A legalist stance is not selective; it can be adopted toward any crime at all. The commission of any criminal offense can be likened to treason or insurrection. Legalism cannot justify why war is declared on some but not all offenses. Why not a war on shoplifting? The fact that an activity is against the law provides no answer to this and other normative questions. Should recreational drug use be criminalized? Legalism does not begin to address this issue, since it only describes the attitudes that we should have toward illegality once a law is already in place.
    Perhaps I have not done justice to the legal moralist or the legalist. But in the absence of a more detailed and compelling argument for these positions, I will not further discuss whether these rationales can support LAD. In what follows, my general project is to attempt to identify whether there is any harm in recreational drug use that justifies its prohibition. I assume that if there is no substantial harm to be prevented by criminal punishment, LAD should be condemned as an unjustified interference in personal liberty. Two possible harms might support criminal punishment: harm to drug users themselves, and harm to others. I turn now to the first of these rationales.

Notes

1. "Drug War Underlines Fickleness of Public," New York Times, 6 September 1990, p. A22:6. (back)
2. "War on Drugs Remains Top Priority, Bush Says," New York Times, 6 September 1990, p. A22:4. (back)
3. William Bennett, National Drug Control Strategy (Washington: Office of the National Drug Control Policy, 1990), p. 9. (back)
4. Thomas Mieczkowski, "The Accuracy of Self-Reported Drug Use: An Evaluation and Analysis of New Data," in Drugs, Crime, and the Criminal Justice System, ed. Ralph Weisheit (Cincinnati: Anderson Publishing Co., 1990), p. 275. (back)
5. Ethan A. Nadelmann, "The Case for Legalization," The Public Interest 92 (1988): 3. (back)
6. National Institute on Drug Abuse, National Household Survey on Drug Abuse (1990). (back)
7. Ibid. (back)
8. "New York Reports a Drop in Crack Traffic," New York Times, 27 December 1990, p. B1:2; "Drop in Youths' Cocaine Use May Reflect a Societal Shift," New York Times, 25 January 1991, p. A14:1; and "Crack May Be Cracking," New York Times, 10 August 1991, p. 18:1. For more troublesome news, see "Falling Off the Wagon for Cocaine," Washington Post 2-8 December 1991, National Weekly Edition, pp. 34-5. (back)
9. Franklin Zimring and Gordon Hawkins, The Search for Rational Drug Control (New York: Cambridge University Press, o992), pt 42. (back)
10. Ronald Hamowy, "Introduction: Illicit Drugs and Government Control," in Dealing with Drugs, ed. Ronald Hamowy (Lexington, MA: D.C. Heath & Co., 1987), pp. 1-2. (back)
11. Chester Mitchell, The Drug Solution (Ottawa: Carleton University Press, 1990), p. 133. (back)
12. Harmelin v. Michigan, 111 S. Ct. 2680 (1991). (back)
13. "Hitting a Small Nail with a Very Large Hammer," Washington Post, 10-16 December 1990, National Weekly Edition, p. 25:2 14 (back)
14. Uniform Crime Reports, "Crime in the United States" (1989) (back)
15. Chapman et al. v. United States, 111 S. Ct. 1919 (1991). (back)
16. Julie Bach, ed., Drug Abuse: Opposing Viewpoints (St. Paul: Greenhaven Press, 1988), p. 147. (back)
17. Mitchell, Drug Solution, p. 138. (back)
18. See Doug Bandow, "Once Again, a Drug War Panic," in The Crisis in Drug Prohibition, ed. David Boaz (Washington: Cato Institute, 1990), p. 93. (back)
19. See Steven Jonas, "Solving the Drug Problem: A Public Health Approach to the Reduction of the Use and Abuse of Both Legal and Illegal Recreational Drugs," Hofstra Law Review 18: 751, 774. (back)
20. Newsweek, 11 August 1986, 18. (back)
21. House Select Committee on Narcotics Abuse and Control Legalization of Illicit Drugs: Impact and Feasibility, 100th Cong., 2d sess., 1989, 1:133. (back)
22. William Bennett, "Drug Policy and the Intellectuals" (Speech delivered at the Kennedy School of Government, Harvard University, 11 December 1989). (back)
23. See Mitchell, Drug Solution, p. 27. (back)
24. See Harold W. Lewis, Technological Risk (New York: W.W. Norton & Co., 1990). (back)
25. "Our Multibillion-Dollar Bill for Getting the Lead Paint Out," Washington Post 1-7 July 1991, National Weekly Edition, p. 32. (back)
26. Herbert Needleman, "Why We Should Worry about Lead Poisoning," Contemporary Pediatrics 34 (1988): 34. (back)
27. Bennett, National Drug Control Strategy, (1990), p. 3. (back)
28. Zimring and Hawkins, Search for Rational Drug Control, p. 23. (back)
29. Gerald F. Uelmen and Victor G. Haddox, eds., Drug Abuse and the Law Sourcebook (New York: Clark Boardman Co., 1988), 1-1. (back)
30. Ibid., pp. 1-3 (back)
31. See Jonas, "Solving the Drug Problem," 756. (back)
32. A. Lee Fritschler, Smoking and Politics, 2d ed. (Englewood Cliffs, NJ: Prentice-Hall, 1975), pp. 34-5. (back)
33. William Bennett, National Drug Control Strategy. (Washington: Office of the National Drug Control Policy, 1989), p. 4. (back)
34. 21 U S.C. sec. 321 (g) (1). (back)
35. Food is defined as "articles used for food or drink for man or other animals" (21 U.S.C. sec. 321 [f] [1]). (back)
36. 21 U.S.C. sec. 802 (6). (back)
37. 21 U.S.C. sec. 802(6). (back)
38. Mark Moore, "Drugs: Getting a Fix on the Problem and the Solution," Yale Law S Policy Review 8 (1990): pp. 8, 19. (back)
39. Bennett, National Drug Control Strategy, p. 8. (back)
40. See Jonas, "Solving the Drug Problem," 757-8. (back)
41. Uelmen and Haddox, Drug Abuse and the Law Sourcebook, PP 3-4 (back)
42. 21 U.S.C. sec. 812. (back)
43. U.S. v. Fogarty, 692 F.2d 542, 548 (1982). (back)
44. NORML v. Bell, 488 F.Supp. 123 (1980). (back)
45. 21 U.S.C. sec. 355 (d) (6). (back)
46. See Grinspoon v. Drug Enforcement Agency, 828 F.2d 881, 891 (back)
47. Unapproved dispensing of any controlled substance for the purpose of continuing the dependence of a narcotic drug-dependent person is expressly prohibited by 21 U.S.C. sec. 828 (e). See also Webb v. U.S., 249 U.S. 96 (1919). (back)
48. Robert Bogomolny, Michael Sonnenreich, and Anthony Roccograndi, A Handbook of the 1970 Federal Drug Act (Springfield, IL: Charles C. Thomas, 1975), pp. 75-6. (back)
49. "Survey Finds Support for Marijuana Use by Cancer Patients," New York Times, 1 May 1991, p. D22:1. (back)
50. U.S. v. Pastor, 557 F.2d 930 (1977). (back)
51. Grinspoon v. Drug Enforcement Agency, p. 895. (back)
52. See Edward Lipinski, "Motivation in Drug Misuse: Some Comments on Agent, Environment, Host," Journal of the American Medical Association 219 (1972): 171. (back)
53. Grinspoon v. Drug Enforcement Agency, p. 894 n. 14. (back)
54. Jerome Beck and Marsha Rosenbaum, "The Scheduling of MDMA ('Ecstasy')," in Handbook of Drug Control in the United States, ed. James Inciardi (New York: Greenwood Press, 1990), 303, 308. (back)
55. 21 U.S.C. sec. 844 (a). (back)
56. David Musto, The American Disease: Origins of Narcotic Control, exp. ed. (New York: Oxford University Press, 1987), p. 260. (back)
57. Grinspoon v. Drug Enforcement Agency, p. 27. (back)
58. Vance v. Bradley, 440 U.S. 93, 1ll (1979). (back)
59. U.S. v. DiLaura, 394 F.Supp. 77o, 772 (1974). (back)
60. McLaughlin v. Florida, 379 U.S. 184, 196 (1964). (back)
61. Robert E. Goodin, No Smoking (Chicago: University of Chicago Press, 1989), p. 65. (back)
62. Ibid. (back)
63. 537 P.2d 494, 504 (1975) (back)
64. Ibid., p. 498. (back)
65. "Life, Liberty, and Maybe Marijuana," New York Times, 5 February 1991, p. A16:4. (back)
66. See "Judge's Overturning of Crack Law Brings Turmoil," New York Times, 1l January 1991, p. Bs:3; and "Minnesota Upholds Ruling That Crack Law Was Biased," New York Times, 14 December 1991, p. A8:2. (back)
67. Laurence Tribe, American Constitutional Law, 2d ed. (Mineola, NY: Foundation Press, 1988), p. 1614. (back)
68. Ibid., p. o610. (back)
69. Ibid., p. 1324. (back)
70. Nadelmann, "Case for Legalization," 4. (back)
71. Tribe, American Constitutional Law, p. 1386. (back)
72. David Richards, Sex, Drugs, Death, and the Law (Totowa, NJ: Rowman & Littlefield, 1982). (back)
73. See Frederick Schauer, "Decriminalization and the Constitution," Criminal Justice Ethics 3 (1984): 76. (back)
74. See Bowers v. Hardwick, 478 U.S. 186 (1986). But see David Richards, Toleration and the Constitution (New York: Oxford University Press, 1986). (back)
75. Thomas Jefferson, Notes on the State of Virginia (Boston: Thomas & Andrews, 1801), p. 236. (back)
76. Musto, American Disease, p. 9. (back)
77. Ibid., p. 247 (back)
78. See Jonas, "Solving the Drug Problem," 751. (back)
79. Andrew Weil, The Natural Mind, 2d ed. (Boston: Houghton Mifflin Co., 1986), pp. 2, 36. (back)
80. Bruce Alexander, Peaceful Measures: Canada's Way out of the "War on Drugs" (Toronto: University of Toronto Press, 1990), p 338. (back)
81. See Norman E. Zinberg, Drug, Set, and Setting: The Basis for Controlled Intoxicant Use (New Haven: Yale University Press, 1984), p. 28. (back)
82. "Federal Judge Would Make All Illicit Drugs Legal," New York Times, 13 December 1989, p. Blo:5. (back)
83. Weil, Natural Mind, p. 19. (back)
84. Ibid. (back)
85. Ronald K. Siegel, Intoxication: Life in Pursuit of Artificial Paradise (New York: E.P. Dutton & Co., 1989), p. 313. (back)
86. See ibid., p. 308. (back)
87. Ibid., p. 311. (back)
88. Ibid., p. 312. (back)
89. Norman E. Zinberg, "The Use and Misuse of Intoxicants," in Hamowy, Dealing with Drugs, pp. 247, 255. (back)
90. James Bakalar and Lester Grinspoon, Drug Control in a Free Society (Cambridge: Cambridge University Press, 1984), p. 129. (back)
91. Ray Brown, "The Black Community and the 'War on Drugs,' " in The Great Issues of Drug Policy, ed. Arnold Trebach and Kevin Zeese (Washington: Drug Policy Foundation, 1990), pp. 83, 85 (back)
92. Nadelmann, "Case for Legalization," 4. See also Michael Letwin, "Report from the Front Line: The Bennett Plan, Street-Level Drug Enforcement in New York City and the Legalization Debate," Hofstra Law Review 18 (1990): 795 (back)
93. James Inciardi and Duane McBride, "Legalization: A High Risk Alternative to the War on Drugs," American Behavioral Scientist 32 (1989): 259, 278. (back)
94. Ibid., 278. (back)
95. See Samuel Myers, "Drugs and Market Structure: Is There Really a Drug Crisis in the Black Community?" in Trebach and Zeese, Great Issues of Drug Policy, p. 98. (back)
96. Marsha Rosenbaum, lust Say What? (San Francisco: National Council on Crime and Delinquency, 1989), p. 9. (back)
97. National Institute on Drug Abuse, National Household Survey of Drug Abuse (1990). (back)
98. Ethan Nadelmann, "Drug Prohibition in the United States: Costs, Consequences, and Alternatives," Science 245 (1989): 940. (back)
99. Inciardi and McBride, "Legalization," 239. (back)
100. "Anti-Drug Effort Drags Outside U.S.," New York Times, 25 November 1990, p. Ag:l. (back)
101. Peter Reuter, "Can the Borders Be Sealed?" The Public Interest 92 (1989): 51. (back)
102. National Institute on Drug Abuse, High School Senior Survey (1990). (back)
103. Nadelmann, "Drug Prohibition," 941. (back)
104. Nadelmann, "Case for Legalization," 16. (back)
105. James Ostrowski, "The Moral and Practical Case for Drug Legalization," Hofstra Law Review 18 (1990): 607, 685. (back)
106. David Carter, "An Overview of Drug-Related Misconduct of Police Officers: Drug Abuse and Narcotic Corruption," in Weisheit, Drugs, Crime, and the Criminal Justice System, pp. 79, 105. (back)
107. Mark Deninger, "The Economics of Heroin: Key to Optimizing the Legal Response," Georgia Law Review 10 (1976): 565, 583 (back)
108. Mark Kleiman and Aaron Saiger, "Drug Legalization: The Importance of Asking the Right Question," Hofstra Law Review 18 (1990): 527, 542 (back)
109. Nadelmann, "Drug Prohibition," 941. (back)
110. James Ostrowski, "Thinking about Drug Legalization," in Boaz, Crisis in Drug Prohibition, pp. 45, 61. (back)
111. Richard Cowan, "How the Narcs Created Crack," National Review, 5 December 1986, 26. (back)
112. Nadelmann, "Case for Legalization," 7. (back)
113. John Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), p. 128. (back)
114. Jon Gettman, "Decriminalizing Marijuana," American Behavioral Scientist 32 (1989): 243, 244. (back)
115. See Mark Kleiman, Marijuana: Costs of Abuse, Costs of Control (New York: Greenwood Press, 1989), pp. 164-7. (back)
116. Nadelmann, "Drug Prohibition," 942. (back)
117. See Alexander, Peaceful Measures, pp. 165-6. (back)
118. Ostrowski, "Thinking about Drug Legalization," p. 62. (back)
119. "New Tactics in the War on Drugs Tilt Scales of Justice Off Balance," New York Times, 29 December 1989, p. Al:l. (back)
120. Ostrowski, "Thinking about Drug Legalization," p. 58. (back)
121. James Austin and Aaron McVey, The 1989 NCCD Prison Population Forecast: The Impact of the War on Drugs (Washington: National Council on Crime and Delinquency, 1989), p. 1. (back)
122. See Jonathan Schonsheck, "On Various Hypocrisies of the 'Drugs' in Sports Scandal," The Philosophical Forum 20 (1989): 247 (back)
123. Weil, Natural Mind, p. 46. (back)
124. Sports Illustrated, 24 September 1990, 27. (back)
125. Gerry Fitzgerald, "Dispatches from the Drug War," Common Cause 16 (January/February 1990): 13, 19. (back)
126. See Peter Dale Scott and Jonathan Marshall, Cocaine Politics (Berkeley: University of California Press, 1991). (back)
127. See Steven Wisotsky, "The Emerging 'Drug Exception' to the Bill of Rights," Hastings Law Journal 38 (1987): 889. (back)
128. David Evans, "How Many Liberties Are We Losing?" Human Rights 17 (1990): 14, 15. (back)
129. "Hitting a Small Nail with a Very Large Hammer," p. 25:1. (back)
130. Ibid. (back)
131. See Zimring and Hawkins, Search for Rational Drug Control, p. 106. (back)
132. John Stuart Mill, On Liberty (New York: E.P. Dutton & Co.,), p. 126 (back)
133. Legalization of Illicit Drugs, p. 9. (back)
134. See James Jacobs, "Imagining Drug Legalization," The Public Interest 101 (1990): 28. (back)
135. John Lawn, "The Issue of Legalizing Illicit Drugs," Hofstra Law Review 18 (1990): 703, 715. (back)
136. See Herbert Packer, The Limits of the Criminal Sanction (Stanford: Stanford University Press, 1968). (back)
137. See Douglas Husak, Philosophy of Criminal Law (Totowa, NJ: Rowman & Littlefield, 1987). (back)
138. See the polls in the Washington Post, 18-24 September 1989, Weekly Edition, p. 37; and New York Times, 15 September p. A26:s. See also Robert Peterson, "Legalization: The Myth Exposed," in Searching For Alternatives, eds. Melvyn B. Krauss and Edward P. Lazear (Stanford: Hoover Institution Press, 1991), p. 324. (back)
139. National Institute on Drug Abuse, High School Senior Survey (1988). (back)
140. Arnold Trebach and Kevin Zeese, eds., Drug Prohibition and the Conscience of Nations (Washington: Drug Policy Foundation, 1990) p. 226. (back)
141. Joel Feinberg, Harm to Others (New York: Oxford University Press, 1984); idem, Offense to Others (New York: Oxford University Press, 1985); idem, Harm to Self (New York: Oxford University Press, 1986); and idem, Harmless Wrongdoing (New York: Oxford University Press, 1988). Feinberg allows for the criminalization of some offensive conduct, but this exception to the general requirement of harm is unimportant for present purposes. (back)
142. See Douglas Husak, "Rights, Harmless Immorality, and Inchoate Criminal Offenses" (forthcoming). (back)
143. William Bennett: "The Plea to Legalize Drugs Is a Siren Call to Surrender," in Drugs in Society, ed. Michael Lyman and Gary Potter (Cincinnati: Anderson Publishing Co., 1991), p. 339 (back)
144. James Inciardi and Duane McBride: "Debating the Legalization of Drugs," in Inciardi, Handbook of Drug Control, p. 283. (back)
145. John Kaplan, Marijuana: The New Prohibition (New York: World Publishing Co., 1970), p. xi. (back)
146. Feinberg, Harmless Wrongdoing. (back)
147. Richards, Sex, Drugs, Death, and the Law, p. 168. (back)
148. Weil, Natural Mind. (back)
149. Richards, Sex, Drugs, Death, and the Law. (back)
150. Ibid., p. 169. (back)
151. Ibid., p. 170. (back)
152. Alexander, Peaceful Measures, p. 337. (back)
153. Bennett, National Drug Control Strategy, (1989), p. 9. (back)
154. James Q. Wilson, "Against the Legalization of Drugs," Commentary 89 (1990): 21, 26. (back)
155. Richards, Sex, Drugs, Death, and the Law, pp. 171-2. (back)
156. Zimring and Hawkins, Search for Rational Drug Control, p. 9. (back)
157. Ibid., p. 8. (back)
158. Ibid., p. 10. (back)