Should Recreational Drug Use Be Criminalised?

Douglas Husack provides a cogent analysis of the drug laws debate, focusing on the various reasons that prohibitionists posit for criminalising drug use, as well as the various disadvantages of prohibition. (1,992 words)

In his 2002 book Legalize This! The case for decriminalising drugs, Douglas Husack—a Professor of Philosophy and Law at Rutgers University in the US—combined hard facts and rigorous moral reasoning to cogently analyse the drug laws debate. I have summarised his arguments in this article to help the reader decide how they feel about the central question of the justice of drug laws. While Husak argues about the situation in the US, much of what is said is relevant to other countries.

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

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

1. Reasons for Criminalising Drug Use 
The most pervasive argument used by prohibitionists is that drug users should be punished in order to protect children. However, Husak argues that the state is not committed to child welfare generally, since millions live in poverty and lack health insurance, and schools are under-funded, etc. Moreover, concern for the welfare of children vanishes when a child begins to use drugs—at the time Husack was writing his book, there was a growing trend in the US to prosecute and sentence children as if they were adults.

The concern that children remain drug free disappears when doctors purport to detect a syndrome that requires the use of drugs, e.g. millions of children in the US take Ritalin and other amphetamine-like stimulants for the so-called attention deficit hyperactivity disorder (ADHD) [1]. There is not only little evidence that this ‘disorder’ actually exists [2], but Ritalin is a Schedule II substance under the Controlled Substances Act, which means non-prescription use is illegal.

Husak asks how punishing adults protects children? Adults are not instigating the behaviour we are trying to prevent. The myth of the pusher at the school gates has been wholly discredited. Peers introduce children to drugs.

The Office of National Drug Control Policy (ONDCP) argues that the second most important objective of US drug policy is ‘to increase the safety of America’s citizens by substantially reducing drug-related crime and violence.’ Prohibitionists often point out that a high percentage of criminals test positive for illicit drugs.

More meaningful, is the fact that an extraordinarily low percentage of drug users commit non-drug crimes. If drug use causes crime, why do the vast majority of drug users not engage in crime?

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

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

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

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

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

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

Husak also asks how criminalisation improves health? He questions whether the health of drug users improves in prison. According to the ONDCP, about 25,000 Americans die each year from using illicit drugs—the majority are caused by drug prohibition, not by the drugs themselves.

Approximately 100,000 people die each year from adverse reactions to prescription medications, whilst over 100,000 people die each year because of alcohol. At least 430,000 die each year because of tobacco.

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

Husak finally refers to the moral view of prohibitionists. The former drug czar William Bennett said, ‘I find no merit in the legalizers’s case. The simple fact is that drug use is wrong. And the moral argument, in the end, is the most compelling argument.’


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

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

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

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

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

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

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

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

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

Although it is commonly assumed that communities become safer when criminals are sent to jail, this conventional wisdom has been challenged. Offenders become more deeply immersed in criminal subcultures and learn more sophisticated skills for committing crimes when in prison. And they eventually return to the neighbourhoods from which they came.

Moreover, men who have been to prison are less likely to marry, get good jobs, or to develop productive relationships with family members once they are back on the streets—all of these increase their propensity to commit crime.

Husak believes that, ‘Truth is among the casualties of our misguided drug policy.’ Lies and hypocrisy prevail. ‘The demonisation of illicit drugs is so pervasive that frank and honest discussion is almost impossible’, and people are afraid of the repercussions if changes are made.

Children are sceptical of what they are told about drugs, whilst educators may be sceptical about certain programs—and have proof backing this scepticism—but are scared to speak out because they may be called soft on drugs.

Prohibition has eroded civil liberties in which Americans take pride. Asset forfeiture has been a favourite strategy in the drug war. Assets may be seized if it is thought they were obtained by money obtained from drugs. This might preclude someone being able to pay for their defence.

Schoolchildren wishing to take part in after-school activities (e.g. playing clarinet) may be drug-tested. Women convicted of a drug offence may lose their social security benefits for life.

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

The eighth and final counterproductive effect of prohibition put forward by Husak is that the US’s, ‘punitive drug policies cost exorbitant amounts of money. The federal government now spends close to 20 billion dollars per year, and state and local governments at least that much again, on combating illegal drugs.’

A more detailed description of Douglas Husak’s arguments can be found in his excellent book [3].


[1] Data from the Centers for Disease Control and Prevention in the US reveals that the estimated number of children ever diagnosed with ADHD for the period 2016-2019 was six million (9.8%). This figure included 265,000 (2%) children aged between three and five years of age. A national survey from 2016 revealed that 62% of children with current ADHD were taking ADHD medicine. A total of 18% of children aged two to five years of age were taking ADHD medication, which equates to around 50,000 children of this age being prescribed an addictive drug.

[2] Check out Michael Corrigan’s various other articles focused on ADHD and the use of medications for this so-called condition.

[3] Douglas Husack, Legalize This! The case for decriminalising drugs, Verso, 2002.

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