A Debate on Drug Legalization in Vermont

Recently a prosecutor in Vermont, Windsor County State's Attorney Robert Sand told the Rutland Herald that he favored decriminalization of all drugs, "State's attorney critical of drug laws."

Today, the Rutland Herald followed up asking the state police Commissioner his view, and a retired federal probation officer, "State splits over decriminalizing drugs."

Today the newspaper editorialized, "Just say so to legalization".

I posted the following on the comment board:

"What justifies punishing a drug user?"

The Rutland Herald’s editorial this morning is a thoughtful beginning to think about one of the most important social policy questions our society faces. The use of drugs unquestionably leads to many tragedies – but that is true of much of life.

Just think of how many persons are killed and injured skiing and snow boarding each year nationwide – an average of more than 38 persons per year, according to National Ski Areas Association. One could ask, what does skiing accomplish? What good is skiing? Well, it is fun, it is exciting. Isn’t it exciting because the speed creates a sense of risk? If we focused our attention just on hospital emergency rooms, we might think that skiing ought to be outlawed.

It might be an interesting exercise to imagine what the world of skiing would look like if it were outlawed. Imagine who would make skis, how it would be taught, where it would be done. Does anyone doubt that while there would be much less skiing, it would be much more dangerous to those who do ski, than it is now?

Do any of your readers know people who do not ski because they fear that it is dangerous? How would Vermonters feel if a crusade were started to protect society from the dangers of skiing by outlawing skiing? We would consider such a crusade absurd.

Most of society would argue that there is simply no valid comparison between skiing and heroin use. And in many respects, of course, they are very different activities. Most of us cannot imagine that our vision of the typical heroin user is getting any pleasure that is legitimate – we see the heroin user as desperately ill and hunting for their next “fix.” What is the Constitutional or moral principal that entitles a political majority to define another person’s pleasures as wrong, or illegal?

Before we think about legalization and the complex regulations that it might involve, we must ask a preliminary question. What is the principle that authorizes the state punishment of a person for the simple act of using a drug like heroin, cocaine, or marijuana? What are our principles for deciding who the state gets to deny liberty by locking them up and punishment? Before society is justified in punishing a person, isn’t it necessary to ask exactly what harm to another that person is actually doing?

We punish rapists because they hurt a victim. Our society says you cannot force a person to have sex if they do not want to. We say you cannot fondle someone for your own emotional gratification. You cannot lock up a child in the basement and deny the child liberty – even if you feed the child and give the child books. We understand that taking away someone’s rights and property are wrong, and deserve punishment.

The person sitting in their house who injects, smokes or snorts a drug is not taking away anyone else’s property or invading anyone else’s rights. What is the principle that says the state may punish them? The question I am asking is, what is the moral basis for punishing drug use?

Some people like to answer that because drug use will lead (but only sometimes) to addiction or other physical injury, that consequence will result in public expenditures. But this consequence does not justify punishing people in advance. We may be able to predict that a lifestyle that involves a poor diet and no exercise will lead to health consequences likely to result in medical bills that must be paid by insurance or by the public. No one would ever claim that such potential public costs justify punishing a person today.

Some people say that punishing people who use drugs will deter other people, especially young people, from using drugs. This mixes up the proper subject of punishment. We may punish a shoplifter who has taken the property of another – which we all agree is wrong – to deter other people from doing that kind of wrongful thing. But we would not and do not punish people who simply browse the aisles of a store because we think that they might shoplift. Unless someone has actually done something wrong, it is wrong to punish them. This kind of deterrence is a type of collective punishment – that is punishment of members of a group to prevent others from taking action. Think about this kind of deterrence at its most extreme. During World War II many people resisted the German invasion of their country. They set roadside bombs for German convoys or blew up trains. The Germans tried to prevent this by inflicting punishment on all the village residents near such acts of resistance. That kind of collective punishment was declared a crime against humanity.

We have imprisoned tens of thousands of people simply for possessing marijuana. They have done nothing else. Is this imprisonment morally justified? This question cannot be answered by saying, “it is against the law,” because we are examining the moral basis for the law.

Before we get to the question of legalization – that is, what a post-prohibition regime might look like, and how it might affect society – we must first answer the moral question of what justifies the state’s punishment of people who have not done anything other than possessed and used a drug.

Tags: drug legalization, legal principles, drug use, punishment, Eric Sterling, Justice and Drugs

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