This philosophical account limits itself to the injustice (some usual cost/benefit stuff, but then goes back to justice) of criminalizing drug use. That is, not the "right" to use or all nuances (e.g., denial of aid for use). A bit incomplete, but overall, lot packed in the space. {expanded post}
The book says the "best" case is that the state does not have an adequate just reason, on grounds of personal responsibility, to do the "worst" thing it can do -- lock someone up. I think undersells thing a tad. We can consider some mild punishment, such as a criminal fine or short prison sentence, that is arguably not as bad as other things put in a different category (not supported) such as denial of a job or educational benefit long term because of drug use. This is "punitive" enough for me.
Anyway, the "justice" broadly refers to rights (from unjust detention) but not a right to use drugs per se, special cases such as religious use or euthanasia particularly not covered.* Kent v. Dulles cited this principle: "outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases." Particularly given how legal drugs and practices work out, the book shows how health, crime control and protection of children doesn't justify criminalization while the failed attempt causes its own problems, including in the areas it supposedly is there to address (e.g., health). A lot wrong here.
The dissent in Bowers v. Hardwick compared certain sexual practices to "possession in the home of drugs, firearms, or stolen goods," but "victimless" or not, illicit drug possession is not dangerous enough to warrant the current legal regime. The book, however, might have undersold the "morals" argument, which it basically saw inconsistently applied (cf. alcohol use), applied in an overinclusive matter (only a limited number of drug users are the "real" problem here) or based on non-secular grounds (once a secular veneer is removed) that are illegitimate for our system of government. The matter brings to mind this colloquy during the Lawrence v. Texas orals:
Again, I'm not sure if the book fully examined how this can be seen as harmful to society, especially if we put aside some right to autonomy, even if many might feel it unduly paternalistic. We generally expect individuals in society to provide some minimum things for the good of all and some basic ability to be a thinking and productive member would be one such thing. Spoken vaguely like that, it might work, but even if we accept that (some won't), criminalizing (some) drug use is a piss poor way of advancement.
Anyway, as I noted in the beginning, this book provides a lot of material in its under 200 page package. The aim is a bit more narrow than some might like (the injustice of criminalization of drug use) but it covers most of the bases and does so with an honest hesitance to be sure of itself. Good thing, therefore, that the burden of proof is to those with the keys to the jail. The book is the work of a philosopher, but the regular reader should be able to enjoy it as a whole. Only a tad academic in flavor.
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* The book does respect freedom of choice over means of recreation and civil liberty concerns are weighed in the costs section ("justice" is the "best," not the "only" argument involved).
Still, rights is a major issue here, making the criminalization harder to justify. If you are going to talk about recreation as a benefit of drugs, why stop there? A footnote in Stanley v. Georgia notwithstanding, e.g., drug use (surely at the time -- the 1960s) has First Amendment connotations -- consciousness, personal statement / protest, social lubricant and so forth. It also is basically a private matter, a matter of personal privacy.
In fact, in a brief article, Justice Tom Clark in the early 1970s suggested the possession of certain types of drugs, such as marijuana, might fall under the protections of Griswold v. Connecticut. Clark earlier noted choice of diet was a matter of personal privacy. Why not certain drug choices?
The book says the "best" case is that the state does not have an adequate just reason, on grounds of personal responsibility, to do the "worst" thing it can do -- lock someone up. I think undersells thing a tad. We can consider some mild punishment, such as a criminal fine or short prison sentence, that is arguably not as bad as other things put in a different category (not supported) such as denial of a job or educational benefit long term because of drug use. This is "punitive" enough for me.
Anyway, the "justice" broadly refers to rights (from unjust detention) but not a right to use drugs per se, special cases such as religious use or euthanasia particularly not covered.* Kent v. Dulles cited this principle: "outside areas of plainly harmful conduct, every American is left to shape his own life as he thinks best, do what he pleases, go where he pleases." Particularly given how legal drugs and practices work out, the book shows how health, crime control and protection of children doesn't justify criminalization while the failed attempt causes its own problems, including in the areas it supposedly is there to address (e.g., health). A lot wrong here.
The dissent in Bowers v. Hardwick compared certain sexual practices to "possession in the home of drugs, firearms, or stolen goods," but "victimless" or not, illicit drug possession is not dangerous enough to warrant the current legal regime. The book, however, might have undersold the "morals" argument, which it basically saw inconsistently applied (cf. alcohol use), applied in an overinclusive matter (only a limited number of drug users are the "real" problem here) or based on non-secular grounds (once a secular veneer is removed) that are illegitimate for our system of government. The matter brings to mind this colloquy during the Lawrence v. Texas orals:
Mr. Rosenthal: Well, part of the... part of the rationale for the law is to discourage similar conduct, that is, to discourage people who may be in jail together or want to experiment from doing the same kind of thing and I think... and I think that the State can do that.Ronald Dworkin in Freedom's Law also briefly references the matter in an endnote, discussing how the state encourages, including by criminal prosecution (apparently legitimately to some extent), the populace to "make something of their lives" and drug use involves "wasting" one's life to such an extent that it could be deterred. This would also touch upon an area the book totally avoided -- euthansia -- suicide laws also guarding against total "deterioration of the body" to the extent of ending one's life. But, the book still sees an arguably inadequate advancement of a virtuous life not "wrongful" to the degree that warrants imprisonment.
People can harm themselves and still be... and still have it be against the law.
But they can take drugs and do that.
Justice Souter: Well, do you point to a kind of harm here to an individual or to the individual's partner, which is comparable to the harm that results from the... the harm to the deterioration of the body and the mind from drug-taking?
I mean, I don't see the parallel between the two situations.
Again, I'm not sure if the book fully examined how this can be seen as harmful to society, especially if we put aside some right to autonomy, even if many might feel it unduly paternalistic. We generally expect individuals in society to provide some minimum things for the good of all and some basic ability to be a thinking and productive member would be one such thing. Spoken vaguely like that, it might work, but even if we accept that (some won't), criminalizing (some) drug use is a piss poor way of advancement.
Anyway, as I noted in the beginning, this book provides a lot of material in its under 200 page package. The aim is a bit more narrow than some might like (the injustice of criminalization of drug use) but it covers most of the bases and does so with an honest hesitance to be sure of itself. Good thing, therefore, that the burden of proof is to those with the keys to the jail. The book is the work of a philosopher, but the regular reader should be able to enjoy it as a whole. Only a tad academic in flavor.
---
* The book does respect freedom of choice over means of recreation and civil liberty concerns are weighed in the costs section ("justice" is the "best," not the "only" argument involved).
Still, rights is a major issue here, making the criminalization harder to justify. If you are going to talk about recreation as a benefit of drugs, why stop there? A footnote in Stanley v. Georgia notwithstanding, e.g., drug use (surely at the time -- the 1960s) has First Amendment connotations -- consciousness, personal statement / protest, social lubricant and so forth. It also is basically a private matter, a matter of personal privacy.
In fact, in a brief article, Justice Tom Clark in the early 1970s suggested the possession of certain types of drugs, such as marijuana, might fall under the protections of Griswold v. Connecticut. Clark earlier noted choice of diet was a matter of personal privacy. Why not certain drug choices?