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Right Talk about Drugs Pablo De Greiff* Reviewing: Douglas N. Husak, Drugs and Rights. New York: Cambridge University Press, 1992, 312 pp.
H
usak's book represents a significant and much needed contribution to the literature on the normative aspects of the drug problem. As if this were not a sufficient achievement, the book also makes important contributions to criminal law theory, 1 which is not surprising given the quality of the author's previous work. 2 In this review I will provide a broad overview of Drugs and Rights, move on to a closer examination of its two central chapters, and, finally, briefly mention some questions for further discussion. The aim of Husak's book, not unlike that of other reformists, is to show that present taws against drugs (or "LAD," as he calls them) are not justified. Unlike other participants in this debate, however, Husak does not base his arguments on consequentialist considerations that would show that LAD are useless, too expensive, or counterproductive or, more generally, that they increase disutility however it might be measured. Rather, Husak bases his opposition to LAD on the claim that
Assistant Professor of Philosophy, State Universityof New York at Buffalo, United States; B.A., Yale University 1986; Ph.D., NorthwesternUniversity 1993. Douglas Husak, Drugsand Rights(1992). 2
Douglas Husak, Philosophyof CriminalLaw (1987).
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they violate the rights of individuals. In other words, Husak defends the repeal of LAD as a moral matter, not as a matter of social policy, although he is as skeptical as other decriminalizers of the usefulness of LAD. The book is organized into four chapters of unequal length and importance. The first chapter ("Drugs, Drug Use, and Criminalization"), among other things, provides a schematic overview of the U.S. war on drugs and of the essential parts of the legal framework that has been built to wage it, including the federal Controlled Substances Act of 1970 and its infamous five schedules.3 In addition to pointing out some of the controversial issues generated by the schedules, this chapter also reviews fifteen of the most prevalent arguments offered by opponents of criminalization. The last chapter ("Restrictions on Drug Use") tries to clear up some possible misinterpretations of the main argument and considers two cases that have been difficult for decriminalizers, namely, drug use by pregnant women and by adolescents. Since Husak's project is not policy driven, these discussions, although well informed, are not meant to be the last word on either problem. The bulk of the project is to be found in the book's two middle chapters, and it is to them that I will devote my attention. Husak's interest in dealing with the issue of drugs from a moral perspective leads him to pose the crucial question in terms of rights. The project consists, then, in answering the question whether adults have a moral right to use drugs recreationally. If it turns out that they do, the state is not authorized to enact legislation prohibiting the exercise of a moral right. Posed in this manner, the project is a political nonstarter, given present currents in the political arena in the United States. Beyond this, however, using the vocabulary of moral rights in the context of a discussion about drugs opens Husak to criticism from those who think there is already too much "rights talk" in our public deliberations. This vocabulary also gets in the way of Husak's own intention of carving out a "moderate" position in the debate about drugs. 4 Many readers,
21 U.S.C. ~w 801-812. Husak, supra note 1, at 4.
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especially critics, will need to remember that, for Husak, asserting that adults have a moral right to use drugs recreationally is not, on its own, an endorsement of drug use. Rather, it is merely shorthand for the argument that the state lacks authorization to prohibit the use of drugs, independently of whether there are moral reasons for individuals to consume these substances or not. The main question of course is, how to establish the supposed right of adults to consume drugs recreationally? In this part of his analysis, Husak does not depart from the tradition that takes the prevention of harm to be a necessary condition for criminal legislation: "I assume, without much argument, that a respectable defense of criminal legislation must demonstrate that it is needed to prevent harm. . [I]n the absence of harm, criminal sanctions are undeserved and unjustified. ''5 Declaring himself unconvinced about antipaternalistic arguments, though, Husak is willing to consider the idea that harm to self might provide a sufficient justification for LAD. This is precisely the point of the second chapter ("Drugs and Harm to Users"), where Husak seeks to show that a paternalistic defense of LAD is too weak. The only task left, then, is to show that LAD cannot be justified either on the basis of harm to others, which Husak argues in the third and longest chapter in the book ("Drugs and Harm to Others"). Having this outline of Husak's argument, we can go back to the substantive chapters of the book, in order to examine them in detail. The question addressed in chapter 2 concerns whether LAD are justifiable on paternalistic grounds--whether drug use can be prohibited on the basis of harms caused to adult users themselves. Husak considers two broad paternalistic strategies: the first one consequentialist, and the other deontological. Against a consequentialist defense of LAD, the author argues (1) that it uses a restricted form of utilitarianism, which seeks to maximize utility not overall but merely for users--a restriction of the utilitarian calculus that stands in need of justification; (2) that there are simply too many drug users (around 28 million), who, on the face of it, manifest their disagreement with paternalistic restrictions through their acts of consumption; and (3) that the sort of calculus of benefits and burdens that would justify restrictions on use oddly exclude .
5
.
Id. at 63.
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the benefits that drug use might be said to produce. Not wanting to rely on questionable descriptions of what these benefits might be, Husak simply requires these calculations to include the pleasure that users experience. If this is done, Husak argues, it is not clear that consequentialist considerations will support L A D . 6 Given Husak's interest in the principled resolution of the question about the rights of drug users, he moves on to a deontological assessment of LAD, for consequentialism on his account is generally hostile to questions about rights. He then examines two different nonconsequentialist strategies. The first one consists initially in an attempt to articulate an acceptable principle of autonomy, on the basis of which the boundaries of state intervention regarding the particular issue of drug rights could be settled. If the principle of autonomy authorized drug use, state prohibitions would accordingly be illegitimate. However, the difficulties attendant upon the attempt to specify a general and uncontroversial principle of autonomy make Husak less than sanguine about the prospects of this line of argument. 7 Before abandoning this tack for good, Husak considers whether progress can be made by trying to identify not the principle of autonomy itself but rather the constraints that any such principle would have to satisfy. But this effort is equally inconclusive, for there is no agreement about whether an acceptable principle of autonomy should allow for degrees of autonomy--which would probably make some decisions to use drugs sufficiently autonomous and would therefore protect them from state interference--or not, nor about whether an adequate principle of autonomy should be purely formal--which, again, would probably protect at least some forms of drug use--or substantive. 8 Finally, to think that the issue of a right to use drugs could be settled by the definition of either a principle of autonomy or its constraints begs the question against everyone except perhaps libertarians, who are alone in holding that the only relevant moral consideration is whether a decision has been autonomously made. Anyone with a more differentiat-
6
[d. at 7 6 - 8 0 .
7
Cf. id. at 8 1 - 8 2 .
8
Id. at 8 3 - 8 6 .
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ed understanding of morality, including the paternalist, would be unfazed by this strategy, even if it turned out that most decisions to use drugs are autonomous.
9
The second broad deontological strategy would forgo the attempt to define either autonomy or its constraints, proceeding instead by analogy with other risky recreational activities; if these other activities are protected against state intervention by a principle of autonom y - h o w e v e r it might be defined--the defender of LAD would have to show what makes drugs so different that their use is not protected. (Of course, the defender of LAD could argue that autonomy does not protect any recreational activiv, and hence that it does not protect the recreational use of drugs. But Husak argues that the prohibitionist would still have to distinguish between permitted and prohibited recreational activities for she cannot simply ban all forms of recreation. More important, it is unlikely that autonomy will not cover any form of recreation.) 1~ Frequently, prohibitionists argue that drug use is ris/eier in order to explain what makes it so different from other recreational activities. But, Husak points out, empirical research does not support this conclusion: in terms of fatalities, even when adjusted for the different number of users, drug consumption kills significantly fewer persons than nicotine, and roughly the same number as alcohol. 11 In terms of nonfatal diseases nicotine is of course far riskier than illegal drugs, and finally, although long-term studies are unavailable, Husak suggests that the evidence does not provide "cause for great alarm" concerning the psychological harm t o u s e r s . 12 In short, the prohibitionist's attempt to describe what makes drugs special in terms of risk does not work. Other prohibitionist arguments invoking not differences in risk but in, for example, importance are even less likely to succeed, for questions concerning the specification of tb_is criterion, and the perspective from which importance is supposed to be assessed, always open up the possibility that drug use may end up being more important
9
Id. a t 8 9 .
10
Id. a t 9 2 .
11
Id. a t 9 5 .
~2
Id. a t 9 7 .
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than, or as important as, other legally permitted recreational activities. By far, the most plausible explanation prohibitionists have offered to account for the different treatment of drugs is that they are addictive and therefore lead to a loss of autonomy. The prohibition of drug use would then be justified in order to protect autonomy itself. 13 The notion of addiction, as Husak acknowledges, is a complex one. Not wanting to make unwarranted commitments, he borrows a nonreductionistic account that includes all the following: (1) A subjective awareness of compulsion to use a drug or drugs, usually during attempts to stop or moderate drug use. (2) A desire to stop drug use in the face of continued use. (3) A relatively stereotyped pattern of drug-taking behavior. (4) Evidence of neuroadaptation (that is, tolerance and withdrawal symptoms). (5) Use of the drug to relieve or avoid withdrawal symptoms. (6) The salience of drug-seeking behavior relative to other important priorities. (7) Rapid reinstatement of the syndrome after a period of abstinence) 4 After reminding us that the point of bringing up the addictive character of drugs is precisely to distinguish drug use from other risky activities that are nevertheless protected by the principle of autonomy, Husak proceeds by trying to determine which of the seven criteria mentioned above are relevant for the loss of autonomy. He concludes that criteria 4, 6, and 7 (tolerance, psychological dependence, and reinstatement) individually do not serve the prohibitionist's purpose, for the fact that an activity generates either tolerance or psychological dependence, or displays a pattern of abstinence and reinstatement, on its o w n does not lead us to ban it. There is, though, a crucial factor that underlies the remaining criteria, namely, the "inability to stop." Ultimately, Husak argues, the best way to understand this inability is in
~3
Id. a t 101.
14
/,4. a t 105.
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terms of pain. We will therefore judge the use of drugs nonautonomous only if the pain of withdrawal "is sufficiently severe so that it is unreasonable to expect [the addict] to endure it. ''.5 But the evidence, according to Husak, points in the opposite direction. The majority of people who use drugs stop using them at some point. We must therefore conclude that the pain of withdrawal is not sufficiently severe, and hence that those who continue using drugs do so out of choice, that is, autonomously) 6 The paternalist's attempt to use addiction in order to explain why drug use, in contrast to other recreational activities, is not protected by the principle of autonomy fails as well, according to Husak. The remaining arguments he considers in this chapter--a comparison between slavery and drug use, and a discussion of voluntariness-- are not more successful. In summary, then, according to Husak, paternalists have failed to establish that considerations about harm to users iusti~ criminalizing drug use. "Drugs and Harm to Others," the third chapter of Husak's book, is the most interesting. Here I will be able to gloss oniy two out of its eight sections. After arguing again, this time on familiar territory pertaining to the usual difficulties associated with the utilitarian calculus (interpersonal comparisons, what should count as a pleasure/burden), ~hat utilitarian considerations will not resolve the issue of a right to use drugs, Husak initiates his effort to clari~ the notion of harm to others by distinguishing it from the notion of disutility. He ends up endorsing joel Feinberg's understanding of harm in terms of being wronged, being treated unjustly, having one's rights violated, i7 So, not all action that results in disutility is a candidate for criminal prohibition. In particular, action that can be described as the exercise of one's rights, regardless of whether it leads to an increase in disutility for others, cannot harm in the sense required for iustifying criminal liability. Feinberg's conception of harm leads to a test "that must be satisE~ed before conduct becomes eligible for prohibition under the harm principle. . . . Every genuinely
!5
H . at 109.
!6
i'd. at 1 0 8 - 1 7 ,
',7
] o d Feinberg, H a r m to Others (1984).
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harmful act must also be a violation of rights. 'q8 The usefulness for Husak's purpose of this way of understanding harm becomes clear when he raises the question "whose rights--and what rights--are violated by acts of recreational drug use? Unless this question can be answered, LAD is incompatible with the harm principle. "19 Husak responds to William Bennett's argument that drugs should be prohibited because users become "inattentive parents, bad neighbors, poor students, and unreliable employees" by arguing that even if these results obtained, they would justify criminalization only if it could be shown that "someone has a moral right that the drug user be an attentive parent, a good neighbor, a proficient student, or a reliable employee.''2~ In the absence of a general theory of rights that secures the particular right in question, Husak concludes that there is no good reason to think that the disutility that might follow drug use should lead to criminal punishment. (Indeed, Husak argues in the following section that the existence of a victim whose moral rights are violated is a necessary, but not a sufficient, condition for criminal liability, that not every harm is a criminal harm, and that consequently some of the potential harms associated with drug use might be better treated using civil rather than criminal law. 2~ Considerations of space prevent me from examining this argument here.) Husak makes his greatest contribution to the broader field of criminal law theory in the course of his analysis of the justification of LAD in terms of anticipatory or inchoate offenses. He acknowledges both the legitimacy of (some) laws that seek to prevent acts that increase the likelihood of harm to others, and also the need to define the limits of the state's authority to create anticipatory offenses. Since he finds in the literature no general theory for the justification of anticipatory legislation, he offers the following four principles: 1. The inchoate principle: "Conduct x should not be criminalized on the ground that it increases the likelihood of harm y
18
Husak, supra note 1, at 166.
19
Id.
20
Id. at 1 6 6 - 6 7 (criticizing William Bennett, National Drug Control Strateg7 7
(1989)). 21
Id. at 170-78.
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unless conduct that directly and deliberately causes y should also be prohibited. ''= This principle would prevent the state from criminalizing drug use on the rationale that it increases the likelihood of becoming lazy, unless the state is ready to criminalize laziness itselfY 2. The triviali~ principle: "Conduct x should not be criminalized on the ground that it increases the likelihood of harm y unless y is a substantial harm."24 This principle would create difficulties for LAD, because even if the aggregate costs of drug use are high, the standard instance of drug use is not especially harmful. 25 3. The remoteness principle: "Conduct x should not be criminalized on the ground that it increases the likelihood of harm y unless x and y are sufficiently proximate. ''26 The twofold rationale underlying this principle deserves to be mentioned here: the greater the distance between x and y, the less the likelihood that persons who commit the anticipatory offense will cause the consummate harm. persons who perform the anticipatory conduct might take any number of intermediate steps to minimize the risk that the consummate harm will o c c u r . 27 This principle makes the justification of LAD as anticipatory legislation difficult for, as Husak points out, the connection between drug use and the consummate offenses to which it is supposed to lead is "double, triply, quadruply, or n-tuply anticipatory."28 The connection, according
22
Id. a t 1 8 4 .
23
Cf. id. a t 1 8 4 - 8 6 .
24
.[d. at 186.
25
Cf. id. a t 1 8 7 - 8 9 .
26
Id. a t 1 8 9 .
27
Id. a t 1 9 0 .
28
[d. a t 1 9 1 .
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to Husak, is simply too remote. 29 4. The empirical principle: "Conduct x should not be criminalized on the ground that it increases the likelihood of harm y unless there is an established causal connection between x and y in a reasonably high percentage of cases. ''3~ The empirical principle would justify LAD only if it could be established that drug use causes crime. But although the correlation between drug use and crime is "frightening, TM there is as yet, according to Husak, no reliable evidence that drugs cause crime. 32 In summary, Husak argues against the harm-to-others defense of LAD by insisting that even if drug use leads to disutility there is a distinction between disutility and harm, and then by offering four principles for the justification of anticipatory legislation that will, individually and collectively, raise difficulties for LAD. So, having shown in chapter 2 that the case for LAD on the basis of harm to users is weak, Husak now closes the case in chapter 3 by arguing that the case for LAD on the more familiar basis of harm to others is not significantly stronger. There are at least three points in Husak's argument that, from my standpoint, deserve much more attention than I can pay them in this brief review. The first concerns the argument against a harm-to-self defense of LAD. In trying to rebut that defense, Husak devotes a great deal of energy to refuting the attempt to distinguish between recreational activities and drug use by appealing to the notion of addiction. Husak is interested in claiming that drug use is the result of autonomous choice, and that as such it should be protected from interference just as much as other recreational activities. In order to argue this case, though, Husak shifts focus from a complex understanding of addiction, which involves seven different criteria, to a reductionistic attempt to capture addiction simply in terms of withdrawal pains. Finding no evidence that withdrawal pains are sufficiently severe, Husak concludes that continued
29
Cf. id. at 1 9 0 - 9 2 .
30
Id. at 193.
31
Id. at 195.
32
Cf. id. at 1 9 5 - 2 0 7 .
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drug use must be the result of autonomous choice. 33 This is a surprising shift, for it might be precisely the interplay among the different criteria that best accounts for the phenomenon of addiction and, more important, the specificity of drug addiction. It might be true, say, as Husak argues, that the salience of skiing in the lives of some persons does not bother us at all. But if that salience were accompanied by a compulsion to ski, and an inability to stop even in the face of a desire to stop, and a need to continue skiing in order to avoid withdrawal symptoms, perhaps we would start having second thoughts about how autonomously this person can decide whether to ski or n o t - - e v e n if none of these "symptoms" was accompanied by pain. Now, the fact that (as far as I know) this is not the way in which people commonly relate to skiing, but that it is not an altogether extraordinary experience among drug users, says something about why drugs are different: some drugs may have a greater potential than other substances or activities of creating a sort of dependency that consists in the overlapping of some of the different criteria that individually fail to capture the phenomenon of addiction but that, in relationship to one another, go a long way in explaining what we normally call "addiction." The loss of autonomy of the addict, in other words, is not captured merely in terms of pain. Perhaps we have legitimate worries about preventing people from consuming drugs even if what makes them addictive is not the pain of withdrawal. The second point in Husak's argument that deserves greater attention consists in his use of Feinberg's explanation of harm in terms of the violation of someone's rights. 34 While this is not the place to discuss Feinberg's work, it is plain that this understanding of harm presupposes some clarity about who has which rights. But that is precisely what Husak is trying to do. Specifically, what he wants to find out is whether adults have a right to use drugs recreationally. While there is nothing illegitimate about Husak's borrowing Feinberg's notion, it should be dear that the most it can do in this context is to turn the tables on Husak's opponent. The debate then becomes one in which
33
Id. at 109-17.
34
See supranotes 17-19 and accompanyingtext.
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Husak defends a right to drug use, while he asks his opponent to justify someone's right to demand "that the drug user be an attentive parent, a good neighbor, a proficient student, or a reliable employee.''35 This particular debate is not as clear as Husak suggests. Indeed, one may ask whether Husak has finally succeeded in establishing the existence of the right to use drugs. Having assumed that harm is the only legitimate reason for criminal legislation, and having shown that drugs do not h a r m - - o r at least, that they do not harm in the required way--either users or nonusers, Husak's argument against LAD is complete. The question is whether this argument also establishes a moral right to use drugs. While Husak's argument can be said to succeed in showing that criminal intervention is illegitimate, he has not shown yet what the claim to a right seems to suggest, namely, that all regulation of existing drugs is illegitimate.36 Finally, although Husak's objections to virtue-based defenses of LAD do not play a central role in his main argument, from my standpoint these objections constitute the least satisfying part of the book. Husak relies heavily on David Richards, who dismisses virtuebased considerations against drug use by arguing that contrary to the common opinion according to which drug use represents a loss of selfcontrol, drugs allow users to "regulate the quality and versatility of their experiences in life to include greater control of mood. ''37 This is not the place to take on this position fully, but Richards's neglect of the difference between control and se~control makes his argument an unsuitable cornerstone for Husak's own dismissal of the serious arguments against drug use that could plausibly be constructed on the basis of virtue ethics. While I agree with Husak that these sorts of arguments would most likely fail to endorse the use of criminal law against consumers, they could have provided a more solid foundation for
35
See supra note 20 and accompanying text.
36 The qualifier "existing" is necessary here, for Husak acknowledges repeatedly that his argument does not show the illegitimacy of regulating, or even banning, some as yet nonexistent drugs. 37
David Richards, Sex, Drugs, Death, and the Law 170 (1982); cf. Husak,
supra note 1, at 67.
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the type of claim Husak sometimes wants to make; that is, that even having a moral right to use drugs does not, in itself, amount to an endorsement of drug use, and that "rights... do not exhaust moral and legal argument. ''38 Having said this, though, it is clear that rights do play a central role in our moral and legal universes. And, from that perspective, there is no other book that comes close to Husak's in clarity and thoroughness on the question of drugs and rights.
38
Husak,
supra n o t e 1, at 87.
