1. Philosophy 220 Boaz and De Marneffe on the Moral and Legal Status of Non- Medical Psychotropic Drug Use

2. Drugs For our purposes a drug is any chemical substance that affects the functioning of living things. An important distinction to make with regard to the use of drugs is between medical and non-medical use. The moral issue that we are considering is the non-medical use of Psychotropic Drugs. o PD: drugs that produce changes in mood, feeling, and perception.

3. Addiction A type of compulsive behavior involving dependence on some substance or activity which is undesirable. o Addiction can be either physical or psychological, and in some instances can exhibit characteristics of both types. There are a number of competing theories about the nature of addiction. o Standard View: addiction is caused by the pharmacological effects of the drug. It’s the presence of the drug alone which produces the addiction.

4. Drug Abuse Not all undesirable use of psychotropic drugs is addictive use. Drug abuse is the excessive nonmedical use of a drug that may cause harm to oneself or others. From a number of moral perspectives, drug abuse raises concerns. From the social perspective, these concerns may justify laws limiting the freedom of individuals to use nonmedical psychotropic drugs.

5. Liberty-Limiting Principles Conditions under which a government may be morally justified in passing laws that limit the liberty of its citizens. 1.Harm Principle: LL laws permissible in order to prohibit individuals from causing harms to others. 2.Offense Principle: LL laws permissible in order to prohibit individuals from offending others. 3.Legal Paternalism: LL laws permissible in order to prohibit individuals from harming themselves. 4.Legal Moralism: LL laws permissible in order to protect common moral standards.

6. Moral Theories? Consequentialism: drug use is wrong if its effects fail to maximize utility. Kantian Moral Theory: drug use is wrong if the maxim of its use fails the CI test. o Compare the UL formulation and the Humanity Formulation. Virtue Ethics: Enjoying oneself is part of a flourishing life. As long as drug use is consistent with flourishing, then it is not problematic. Temperance.

7. Boaz on Legalization Throughout history, humans have used psychotropic drugs. Governmental response has been consistent and univocal: criminalization. Leaving aside any moral questions, the history of this response does not suggest that it is effective. One important consequence that our recent experiment with criminalization (The War on Drugs) has produced is a series of liberty- limiting laws.

8. Boaz on Prohibition Since 1981, the US has been involved in a self-described “War on Drugs.” o Levels of drug availability and persistence of drug use during since suggests that it has not been particularly successful. o Our social commitment to this approach has come at considerable cost (184). One explanation for the failure is the role of financial incentives.

9. Boaz on Rights Boaz boils down our national creed to one fundamental right. o “Individuals have the right to live their lives in any way they choose so long as they do not violate the equal rights of others” (185c2). Implications for drug use? o Violence: associated with use or with prohibition? o Harm?

10. Non-responsibility Boaz turns his attention to the culture and what he describes as a prevailing attitude of non- responsibility. One form of this attitude is the standard view of addiction that he calls “The Addiction Theory.” o He calls it “Addiction Theory;” it has also been called the “Disease Theory.” The idea is that the addict is a sick person that is not responsible for their behavior. What’s the problem with this attitude?

11. Restoring Self- Responsibility Boaz goes on to argue that another limitation of the strategy of criminalization is that, despite appearances, it unintentionally contributes to the non-responsibility attitude. Liberty-limiting laws, on Boaz’s view, are justified only on the basis of the harm principle. Other justifications intrude unjustifiably on personal choice, not only undercutting our liberty, but also weakening our sense of self-responsibility.

12. Adding it Up Criminalization is a failed strategy for consequentialist and rights-oriented reasons. Decriminalization and legalization is not only more consistent with our civil liberties but also has important attitudinal consequences vis-à-vis personal responsibility.

13. De Marneffe and the Argument for Decriminalization De Marneffe defends a moderate position on the question of the moral and legal status of psychotropic drug use. He argues in favor of decriminalization for possession and use of small amounts (consistent with personal use) of drugs (of any sort), but defends the immorality and thus justifiable punishment for selling drugs or possessing large quantities. Though this appears to be a difficult position to maintain, De Marneffe doesn’t think there is any inconsistency.

14. Prohibition De Marneffe’s argument against legalization of non- medical psychotropic drugs is based on the correlations between availability, use and abuse. o If we legalize these drugs, they will become more available, more commonly used and ultimately more commonly abused. He offers in support of this claim the example of alcohol, for which we have the control period of Prohibition, and other studies which seem to demonstrate this correlation. Though there is disagreement about which choice would produce the most desirable consequences, De Marneffe believes prohibition wins.

15. It’s about Rights A more pressing issue for De Marneffe is the claim that prohibition violates the rights of individuals. De Marneffe’s response is to argue that the distinction between criminalization and prohibition makes the difference here. o While drug criminalization (penalties for personal possession and use) does violate individual rights, prohibition does not. De Marneffe acknowledges that most individual use of psychotropic drugs causes little or no harm to the user or to others. Criminalizing such use would seem then to be unjustifiable. Abusive use, on the other hand, is harmful, and as such use typically requires large scale manufacture, sales and possession of drugs, the harm associated with abuse justifies prohibition.

16. Is it that Easy? A critic might respond that De Marneffe is relying on a distinction that doesn’t make any real difference. o If an individual has a right to the use of cocaine in a non-abusive context, wouldn’t interfering with the capacity to possess the non-abusive amounts of the drug be a limitation of the rights of the user? In response De Marneffe articulates what he calls the burdens principle: government can legitimately limit the rights of an individual only in those instances where the burden imposed is not substantially worse than the burden that would be realized if the limiting policy were not in place. o On the assumption that legalization would dramatically increase rates of abusive use and addiction, then the burden imposed on individuals who’d like to be able to recreationally use cocaine seems to satisfy the principle.

17. Some Objections Paternalism: Criminalization is paternalistic; prohibition is not. Sentencing Issues: As we know, our prison population has increased dramatically with the war on drugs, and there are significant questions about the moral appropriateness of many of the sentences imposed. De Marneffe just insists that such concerns are independent of the moral status of prohibition. Alcohol?: Though there is an argument to be made that alcohol prohibition would be justified on the same grounds as continuing drug prohibition, it’s not clear that the costs associated with its prohibition would be outweighed by the benefits. Tobacco and Fatty Foods?: Here too, the associated costs, and different harms, allow for a meaningful distinction to be made between drug prohibition and these issues.