UNGASS2016 is rapidly approaching. On a more local level, an Australian Senate committee recently considered issues around recreational cannabis legalisation.
Discussion of the best way forward for drug policy is certainly in the minds of those advocating for reform this year. In an ideal world, it would on the agenda of political parties as they decide their policies for the next election.
A solution that does seem to crop up with some regularity, especially for cannabis, is decriminalisation. Essentially this would mean that for a given drug (or possibly all drugs), people caught using or possessing small amounts of drugs, and in the case of cannabis growing a small number of plants, would not face criminal charges. Rather, people would be subject to a range of civil sanctions including fines and/or community service, and are encouraged into counselling or treatment if appropriate. I have read here that many cases in the Portuguese decriminalised system are ‘suspended’, meaning that many people receive no penalty at all, but I’m not going to assume that this would happen in other contexts.
Decriminalisation is the official drug policy of the Australian Greens. Smaller parties such as the Australian Sex Party and Liberal Democrats have (in their own distinct ways) policies that tend to support legalisation, though in both cases, this seems only to extend to cannabis. Unsurprisingly, The Coalition and ALP are at the more conservative end of the spectrum, though I can’t speak for the individual views of party members & parliamentarians.
I want to talk about the idea of decriminalisation as it strikes me as a philosopher. What I’m going to argue is that decriminalisation, as an endpoint for drug policy, is based upon assumptions that are much less progressive than they seem (at best). Decriminalisation as an interim step on the way to legalisation, as argued by Julian Buchanan – that’s another matter.
What argument, in its simplest form, might support decriminalisation?
- Drug use is harmful
- Criminal sanction is harmful
- Harm should be minimised
Therefore drug use should be reduced with as little criminal sanction as possible – i.e.: via decriminalisation.
This might seem reasonable. But parts of this argument are distinctly lacking in nuance. Namely, the first premise – that drug use is harmful. Without any further qualification, a philosopher would reads this as ‘drug use is always harmful’. This is very strong opinion. Depending on the drug in question, it would be very difficult to show that this is the case. So we are now back to ‘Some drug use is harmful’. The argument still works, but the conclusion seems weaker somehow.
With the strong version of premise 1, reduction of drug use is always justified because it always reduces harm. If only some drug use is harmful, then aiming to reduce all drug use means reducing the incidences of drug use that are not harmful as well as the ones that are. Why is this a problem? Take a look at premise 3: ‘Harm should be minimised’. This is where the argument moves from what ‘is’, to what we ‘ought’ to do. Implicit in that statement is that minimising harm is a good reason for doing something. This isn’t to say it’s the only reason to do something, though (I’ll come back to this shortly), but it certainly fills the role of justification in this argument.
If reduction of harm is the only justification for an action then only harmful drug use is the proper target of state intervention. The only way this would not be true is if targeting all drug use – including non-harmful – was an effective way to reduce harms associated with drug use, which seems unlikely. If there are reasons, other than reducing harm, for reducing drug use, then they need to be included too and not left unstated. This might be that drug use, even when not harmful, is somehow immoral or unethical. Such ideas require their own justifications and are likely to be controversial.
Alternatively, someone could argue that all drug use was always harmful. This would require the net of ‘harm’ to be cast exceedingly wide, to the extent that it moved into metaphysical, spiritual or religious territory. This is, in my opinion, not a good way to formulate policy in a modern pluralist democracy, and would face the more serious problem of dealing with multiple subjective and unverifiable judgments regarding non-physical & non-psychological harms.
In any case, pushing too hard with health interventions would seem pointless. To use a specific example, most people in Australia who use cannabis, do not so with enough regularity to be considered dependant. Nor do the bulk of people who use it seem to experience significant mental health issues that can be attributed to their use. If we assume that people caught in possession of cannabis are a representative cross-section of all users, then it follows that most (but not all) people caught will not have significant dependence or mental health issues. If this is true, then any scheme that aims to send everyone caught with a small amount of cannabis to a counsellor or other health intervention would be misguided.
In the Portuguese system, if the defendant is not an addict, and will not submit to treatment or community service, then they can be fined. Without belabouring the point too much, fines have the potential to be regressive in that they impact most heavily upon the least wealthy. The ability to avoid custodial sentences, or even being charged in the first place, is already heavily skewed in favour of those with more disposable income, and any regime that further adds to this should face scrutiny.
Considerations of the practicalities of decriminalisation aside, there is one more flaw in the argument I’ve put forward. Even if all the premises are true (and I’ve argued that they aren’t), I made a tricky, and illegitimate, move right at the end.
Even if you agree that ‘drug use should be reduced with as little criminal sanction as possible’, it does not follow that the only (or even the best) way to do this is via decriminalisation. A regime of heavy taxes and regulation (such as we have for tobacco), while far from my preferred option, would be in line with that conclusion.
The largest flaw, for me, is still the problem of harm. I can summon no good reasons to think that all drug use is harmful. Nor can I find good reasons for reducing drug use that are not somehow based in the concept of reducing harm.
Base on that, I think a more plausible argument would be:
- Some drug use is harmful
- Criminal sanction is harmful
- Harm should be minimised
Therefore, harmful drug use should be reduced with as little criminal sanction as possible – i.e: via legalisation, education and sensible regulation.
Let me be very clear, decriminalisation would be a vast improvement over the current state of drug policy in Australia. But to argue that it is the best solution – better than legalisation – is to rely upon at least one flawed idea, the worst of which is that drug use is always harmful.