Philosophers have been strangely silent about the topic of illicit drugs, even though it is a gold mine of philosophical questions. It is distressing to see how few of the dozens of books now available on current moral and social issues contain sections on drug issues. It seems far more pressing to question the punishment of drug users than the execution of murderers--mostly because there are so many more of them. Approximately 80 to 90 million people have used illicit drugs at some point in their lives. There are well over 400,000 drug offenders in jail, about 130,000 for possession alone. Unlike the case of capital murderers, it is plausible to suppose that drug users should not be punished at all, and this is what I want to argue here.
I suspect that the best single explanation for the philosophical neglect of this topic is that it is has a considerable empirical content. When I raise this issue with my undergraduate classes, and ask why we should or should not punish drug users, less than a minute is needed before someone makes a controversial empirical claim about the effects of given drugs on users or on society in general. No one can hope to address the set of moral and legal issues about drug decriminalization without knowing a lot of facts about drugs and drug users. Contrast this with abortion, in which the relevant facts can be learned fairly quickly. Philosophers understandably tend to shy away from topics with a heavily empirical component.
Yet without the input of philosophers, the field has been left largely to scholars in criminal justice, nearly all of whom profess to have no theory of criminalization, but seem mostly to be consequentialists. They prepare cost-benefit analyses of the relative merits of criminalization and decriminalization. Many have concluded that our current drug laws are ineffective and counterproductive. They are probably correct, but that is not the line of inquiry I want to pursue here. As philosophers, I think we should be more interested in examining arguments of principle.
I The Meaning of Decriminalization
First, there is absolutely no consensus among those of us who work in criminal theory about the meaning of such terms as legalization or decriminalization. So I resort to stipulation. What I mean by the use of the term "decriminalization" in this context is that the use of a given drug would not be a criminal offense. I take it to be a conceptual truth for which I will not argue here that criminal offenses render persons liable to state punishment. Thus anyone who thinks that the use of a given drug should be decriminalized believes that persons should not be punished merely for using that drug.
I am aware that there is enormous confusion about this topic. In polls, many respondents report that they do not want to see a given drug decriminalized, but do not favor punishing people who merely use that drug. If my account of decriminalization is accepted, this response is incoherent.
For a number of reasons, this definition of decriminalization is deceptively simple. First, there really is little punishment for use today. In most but not all jurisdictions, what is punished is possession rather than use. Technically, then, drug use is generally not criminalized. But I take the fact that statutes punish possession rather than use to be relatively unimportant. Possession is punished rather than use because it is easier to prove. In what follows, I ignore this complication and continue to suppose that decriminalization pertains to drug use. Except perhaps in fantastic cases, no one can use a drug without possessing it.
Second, there is no clear understanding of what kinds of state responses amount to punishments. Many reformers argue that drug users should be fined rather than imprisoned, and they call this idea decriminalization. Others argue that drug users should be made to undergo treatment, and they also call this idea decriminalization. …