Wednesday, July 07, 2010

Drug use: Personal rights and freedoms

There are many reasons to support government regulation of currently illegal drugs, amongst these are the arguments focusing on the personal rights and freedoms of drug users. Whilst Transform naturally supports the decriminalisation of consenting adult use (our position on these issues detailed in various publications - including 'Tools for the debate' and our 'drug use and civil rights' briefing)  the personal rights arguments are not an area we have historically put significant campaigning resources behind, primarily because other lines of argument - concerning impacts on public health and criminal justice indicators for example - have greater public and political traction.

In the US, by contrast, the personal liberty arguments seem to have far greater traction and are more actively promoted by drug law reformers such as the DPA. See their recent campaigning video for example:

This video provoked considerable US media debate, with support from some unlikely corners including Fox news commentator John Stossel:

Stossel went on to produce an unprecedented 45 minute critique of the drug war for the channel - including a clear call for legalisation/regulation.

The video even provoked Fox News' high profile commentator Bill O'Reilly into one of his characteristic Fox News hit pieces, ultimately landing DPA director Ethan Nadlemann on the O'Reilly Factor (he does pretty well).

Steve Rolles from Transform recently wrote a chapter ('Principles for rational drug policy making') for the forthcoming Routledge publication 'The Politics of Narcotic Drugs' which includes a short section discussing the issues around the personal rights and freedoms of drug users - and edited version of which is copied below:

The rights of the drug user have long been debated, with John Stuart Mill’s principles often cited: that consenting adults should be free to engage in whatever behaviour they wish as long as it does not harm others, and that acting to prevent the individual from harming themselves is not legitimate.
In drug policy debates this is often portrayed as a libertarian position, but viewed more broadly this principle applies to the law with regard to almost all consenting adult risk taking behaviours from freedom over what we eat, what medicines we take, how we consume legal drugs, through to our sexual habits, dangerous sports or other high risk activities, and self harm up to and including suicide - decriminalized in the UK in 1961. So drug laws that criminalize personal use are at odds with the law as it applies to comparable personal choices regarding sovereignty over ones body and freedoms regarding individual risk taking decisions.
There is an important legal distinction to be made between Mala Prohibitum crimes (‘wrong because prohibited’), which only constitute a criminal offence by virtue of statute, and Mala in se crimes where conduct is ‘wrong in itself’. Mala in se crimes include theft, rape and murder around which there is both historical and cross cultural consensus that they violate societies standards – that they are ‘against nature’. Such acts are considered criminal in all states and through-out history and (with few exceptions) there is little debate these are an absolute moral wrong and unacceptable regardless of written law. Mala prohibitum crimes by contrast (including adultery, homosexuality, blasphemy, flag burning, or defying proscriptions on certain foods) lack cross-cultural consensus, vary between states and through legal history, and have been the focus of debate and legal controversy, often witnessing reforms in both directions (even if the trend in the last century has been towards repeal)
Adult consenting drug use clearly comes within the Mala prohibitum sphere, demonstrated by the differences in legal status of drugs (e.g. alcohol and cannabis), the changing legal status of certain drugs (e.g. US alcohol laws), the contrasting drug laws in different states (e.g. cannabis laws in the Netherlands and its neighbours), and the ongoing debate over the criminality of adult consenting use. It is important to note calls to remove the criminality from adult consenting drug use in no way implies support for or justification of Mala in se crimes, such as violence, committed under the influence of drugs, legal or otherwise.
Arguing for a specific legal right to take drugs (see Newcombe 2007 for example), however, seems unnecessary. The argument is better made with reference to existing legal rights and freedoms. Specifically, the criminalization of adult consenting drug use in many cases violates a number of existing human rights. These include the right to privacy (particularly activities undertaken in private or at home), the right to health (specifically control over personal health), the right to freedom of belief and practice (ritual/traditional/religious use of certain drugs such as peyote, ayuhuasca, and cannabis), and the right to freedom of expression (including free access to information). It is important, however, to stress that any such rights and personal freedoms are not unconditional. Liberty (the National Council for Civil Liberties) explored this when it supported a motion:
‘This AGM upholds the right of access of every adult to the lawful supply of psychoactive substances for personal consumption save where expressly constrained by or under the law for the purpose of protecting minors, countering crime, treating addiction, or some other legitimate public purpose and calls on the government to reform the laws accordingly’

(Liberty AGM 25.6.00)

This motion summarizes a number of qualifying principles for which societal intervention is justified, over and above the rights of the drug user, as outlined in a briefing by Roger Warren Evans (1999) (that informed the Liberty AGM motion). Evan’s identifies five key qualifying principles:  

  1. The maturation of the young: the freedom itself adheres to the mature adult (subject to agreement on age of consent). There is a widespread consensus that the deployment of state resources is fully justified, both by way of positive education and supply constraints, to inhibit the consumption of psychoactive substances by the young. 
  2. Contract enforcement: Where an individual has actually agreed not to make use of a psychoactive substance, or any such substances, state intervention is ordinarily justified to enforce that contractual commitment. In some sectors of employment, such constraints are demonstrably expedient: public vehicle drivers of airplanes, trains, coaches, taxis, and other such safety critical positions all accept such constraints, and it is in the public interest that they should be held to their promises. The litmus test is the competence of individuals to perform required tasks, and contractual constraints should not go beyond that;
  3. Criminal law enforcement: The accommodation of psychoactive substances has long been a feature of criminal justice. For example, it is settled law that intoxication cannot be used as a defense, where other breaches of the law are alleged. It must also be evident that the administration of psychoactive substances without consent is and should remain a serious trespass to the person. Finally, difficult judgments have to be made where the consumption of psychoactive substances coincides with the presence of any underlying mental condition. These examples, properly understood, all affirm the principle of individual freedom, and reflect its proper reconciliation with other legitimate societal interests.
  4. Constraint upon social interaction: There are examples of circumstances where drug consumption may properly be constrained by law, eg where the consumption is in public or otherwise obtrusive to others, or where (even if in private) the consumption forms part of a wider pattern of collective behavior with adverse consequences. It is for each society, in each age, to define the principles of intervention where others, who may be considered ‘at risk’, are involved. The principle is difficult to apply, and several applications have been contentious Nevertheless, although particular examples may be controversial, the principle of legitimate state intervention is not refuted.
  5. Public health: There are clearly circumstances where overriding considerations of public health justify state intervention and the abridgement of individual rights – the concept of public health based regulation under which some activities and/or products may remain prohibited and subject to legal sanction. These are well developed and widely understood in the context of the thousands of legal drugs (and other dangerous products, services and activities). It is right that society should at all times ensure that risks to consumers of substantial harm should be avoided.
 Evans goes on to argue that:
'These five propositions are simply stressing that the right-to-consume adheres to adults only, and may be overridden in the pursuit of other legitimate societal interests, where drug consumption is shown to put others at risk of harm. These constraints leave unabridged the freedom of individual adult consumption, whatever the features of the psychoactive substance, in the absence of any demonstrable harm to others. We should take up a very simple position that the adult voluntary use of any psychoactive substance is a matter of unbridgeable personal freedom. As with all legal principles, there are exceptions. But it is for those who assert the exceptions to demonstrate the case for such action. The burden of proof should lie, not with those who uphold individual freedom, but upon the shoulders of those who contend for its qualification.’ 


julia said...

There are reasons I don't think the harm principle applies perfectly. What about the economic costs of drug use? I'm not talking about marijuana, I'm talking about heroin, cocaine, meth; mostly opiates though. If people have the right to take and become addicted to a drug, it seems that they have the responsibility to help themselves. Society doesn't seem to owe this person treatment, right? Because it is their body and they own it, why should society help their body for free?

Or, if you say that we should have publicly funded treatment, then one's personal drug use does come at an expense to others. It's no longer just about "what I put in my body", because we know that for 15%-20% of people who start using drugs, they become addicted. That means society is literally paying for their drug use.

Steve Rolles said...

I agree Julia - but that is covered by the public health caveat mentioned and also - if you want to take it back to Mill, the 'no harm to others' caveat. if someones use imposed harms on others then state interventions are justified. the question is what are the thresholds, what are then interventions, and are they effective at reducing harms. In the case of criminlisation of production, supply and use the answer to the last question is a resounding no - if other responses are more so they should be explored.

Anonymous said...

Steve - I know I said I would desist from complaining but the importance of this point has become very acute today. We have a letter from Les Iveson which is of considerable concern and I will publish later, right now we must stop the errors of law and lies about what parliament has enacted -
Illegal drugs do not exist, please refrain from repeating this prohibitionist mantra as it is part of the problem. Drugs can only be controlled in respect of property rights in law. This is about people being controlled, not objects!! Darryl

Mafficker said...

Please o please i beg of thee: stop believing in 'illegal' drugs, they do not languish in prison, get shot at by police, get their privacy invaded, ad infinitum. Why do you persist? Illegal drugs do not exist in fact or law!

It hurts to sometimes believe that Transform is not really interested in the correct administration of the Act; is not interested in having their dream fulfilled; is not using the correct interpretation of the law to change policy.

Please I beg of thee! Break all the chains and set us all free!

Doobz said...

Julia said,"That means society is literally paying for their drug use."

Better that society as a whole pay for individuals who have drug problems than individual members of that society.

Prohibition or not, there will always be a minority of drug users who will use self-destructively. Much better to bring everything into the open and not persecute these unfortunate people unnecessarily.

Anonymous said...

Dear god..
In this as in everything - you make your choice and you accept the consequences.
If you are at all competent to make the choice, you will understand the consequences before you act.
I fail to see the problem.

If you are not an advocate of the decriminalisation ( not legalisation ) of recreational pharmaceuticals, you must at least accept the necessity of a sane and anonymous testing facility.
This will save lives by ensuring that those that _choose_ to experiment with drugs can be sure that what they are experimenting with is that which was expected.

Oh, and please : criminalising "NRG-X" is like criminalising Levis..
Levis != Denim.

Sunshine Band said...

MDA sets up social harm as the criterion (albeit without any guidance on triggering criteria); thus distinguishing ‘harm to others’, from self-harm. Such a vital battleground shouldn’t be dismissed lightly.

There should be equality between persons irrespective of their DRUG ORIENTATION.

The debate must focus on people and I have a wish that we remember to emphasise the user part in when we talk about ‘drug users’.

My word for today is ‘drugUsers’

Please note that use of controlled drugs is not an illegal activity except for the case of opium use.


Anonymous said...

Yes, please can we give the semantics over 'illegal drugs' a rest. Narrow point taken, but your case for its crucial significance doesn't convince.

On Julia's point: isn't the argument the same as Steve's case that 'drug users' rights', seen correctly, are already implied by other rights? The harms caused by addiction are all harms that are recognised in their own terms, to which addiction may (or may not) have contributed.

Steve Rolles said...

I dont see any function in revisiting the illegal drug (or not) semantics issue again. Ive made clear that I broadly agree with the analysis but dont agree with the political significance of it. Transform's message on the need for appropriate regulation / and the criminalisation of production supply and use is very clear. We have to pick our battles and I dont think this is the one to have showdown over - within the reform movement (we are all on the same side) or in the wider political arena.

So please - lets not get into this again here. Im happy to discuss anything by email as ever.

Mafficker said...

Steve, I can't find your email and you may consider this semantic, but the Act will never be used for the proper regulation of controlled drugs as is Transform's desire if the populace thinks designating a drug as controlled under s2 of the Act makes the drug illegal = prohibition. It does not, all restrictions are subject to s7. Only human action can be made subject to law. Only human action can be restricted.

The Act has a clear mechanism for creating Transform's desire. Have you even studied the Act? I mean really meditated on its provisions? Did you read Casey Hardison's Open Letter to Les Iversen in the June issue of Drugs and Alcohol Today? It lays the Act out in simple to understand detail.

It's a shame that the Secretary of State and most who write and speak on this topic are not aware of the flexible possibility of ss7(1)-(2), 22(a)(i) and 31(1)(a) when read together. If by s31(1)(a) re 'General provisions as to regulations' the Secretary of State 'may make different provisions in relation to different controlled drugs, different classes of persons, different provisions of this Act or other different cases or circumstances' and by s7(1) re 'Authorisation of activities otherwise unlawful under foregoing provisions' the Secretary of State, may make 'provision as (s)he thinks fit for the purpose of making it lawful for persons to do things under which any of the following provisions of this Act, that is to say sections 4(1), 5(1) and 6(1), it would otherwise be unlawful for them to do', then i should be able to buy a clean unadulterated MDMA tablet or three from Boots for my weekend at Glastonbury if the Secretary of State, the ACMD and the Parliament thought that would reduce or eliminate 'Ecstasy' fatalities and other 'harmful effects sufficient to constitute a social problem', s1(2), more effectively than a blanket prohibition of some but not all 'dangerous or otherwise harmful drugs'. Don't you think we should be encouraging the people to see that the Act drafters foresaw the possibility of a completely and wisely regulated controlled drug commerce.

I challenge you Steve! Please grasp the simplicity of it. The legislation is already in place, all we have to do is get the public to see it was Parliament's intention all along: an intentionally evidence led, evolutive instrument for reducing, minimising and eliminating drug harm! It's a beautiful Act! Let's work it!

Fiat lux!

daksya said...

The 4th & 5th clauses in the Liberty AGM motion render the notion of individual freedom to use drugs hollow

(my emphasis)
There are examples of circumstances where drug consumption may properly be constrained by law, eg where the consumption is in public or otherwise obtrusive to others, or where (even if in private) the consumption forms part of a wider pattern of collective behavior with adverse consequences. It is for each society, in each age, to define the principles of intervention where others, who may be considered ‘at risk’, are involved.

Translation: if the mob thinks a behavior is risky or undesirable, then it can be banned.

Note that there's no objective or concretely specified criteria that society has to show which the exercise of the freedom meets.
And that's exactly the status of the basis of current drug prohibitions.

In order to have a freedom with any teeth, it should only be legitimate to constrain it when a robust & inherent* connection to malum se behaviors is demonstrated.

*e.g. violence mediated by drug pharmacology rather than acquisition crimes due to prohibition-propped prices.

Steve Rolles said...

I understand and agree re the issues of the MDA - i disagree re political and public engagement, thats all - but that is not a discussion for here.

There are also issues regarding international law to which we are signatories, and of course domestic legislation around the world which is not the MDA, but with which we are also concerned. that requires a broader approach to the language of regulation/illegality.

my email is steve at of you want to continue this discussion.

jeu198 said...

I'm pleased to hear of the term "Mala Prohibitum", it gives name to sense of injustice I felt at the restriction on prisoners voting. Slightly off-topic I know but as someone who spent a year in HMP Camp Hill for a Mala Prohibitum crime (intent to supply cannabis) its a topic close to my heart. No society anywhere should remove voting rights for prisoners held for a Mala Prohibitum crime else we risk a tyranny.

Anonymous said...

Mill is often selectively quoted by legalisation lobbyists.

Here is extract of an old document by Dalrymple.
The philosophic argument is that, in a free society, adults should be permitted to do whatever they please, always provided that they are prepared to take the consequences of their own choices and that they cause no direct harm to others. The locus classicus for this point of view is John Stuart Mill's famous essay On Liberty: "The only purpose for which power can be rightfully exercised over any member of the community, against his will, is to prevent harm to others, (Mill wrote. "His own good, either physical or moral, is not a sufficient warrant.) This radical individualism allows society no part whatever in shaping, determining, or enforcing a moral code: in short, we have nothing in common but our contractual agreement not to interfere with one another as we go about seeking our private pleasures.
In practice, of course, it is exceedingly difficult to make people take all the consequences of their own actions (as they must, if Mill's great principle is to serve as a philosophical guide to policy. Addiction to, or regular use of, most currently prohibited drugs cannot affect only the person who takes them) and not his spouse, children, neighbors, or employers. No man, except possibly a hermit, is an island; and so it is virtually impossible for Mill's principle to apply to any human action whatever, let alone shooting up heroin or smoking crack. Such a principle is virtually useless in determining what should or should not be permitted.

Steve Rolles said...

anon - re Mill - The Mill reference clearly includes the caveat 'as long as it does not harm others'. It additionally places the way drug use is dealt with in society/law alongside comparable risk taking adult activities that are dealt with very differently - to illustrate the point. This is then expanded upon regard mala in se and mala prohibitum crimes.

Moreover the second half of the post very specifically deals with the various limits to personal freedom.

In this context your quote feels misplaced and irrelevant. The point it makes is not one that the text conflicts with, because its arguing with a point im clearly not making.

Nowhere Girl said...

I find it very important that the topic of personal rights has been raised. It never stops shocking me how unconstitutional prohibition is (no, I'm not from the US, but prohibition is pretty much against EVERY democratic constitution). It's just terrifying - democratic constitutions, democratic laws... and an enclave of totalitarianism when it comes to the "drug problem". The most shocking thing is that it's hardly noticed, it functions as a dogma: "drugs have to be prohibited", end of discussion. How is it possible that any refusal to accept this dogma is viewed as extreme?
Another thing I really like is the "drug orientation" argument. And I really hope one day we will see the emancipation of users of currently prohibited drugs - and recognition of their rights.
Poland (where I live) is quite a homophobic country and lately a survey on people's attitude to homosexuality has been repeated. One of the results: one third would like to see gay sex banned (consider that Poland had legalised it in 1922). A friend mocked it on a mailing list, writing: "What are the reasons for a ban? If it's so-called public good, than let's start with: 1. a ban on manufacture and consumption of cigarettes (they are harmful) (...)". I replied: "I'd like to stress that people who ingest drugs other than the privileged tobacco and ethanol, are being denied their rights in this very way (...)". Unfortunately, it hasn't even been noticed, there's still a long way to go to accept that drug use is a human right.
Have you heard about the Yogyakarta Prnciples? This document shows in a pretty simple but detailed way how does human rights legislation apply to sexual orientation and gender identity. Maybe it would be interesting to prepare something analogical about drug use? In this case - BEFORE it's recognised as a human right, but still it's worth showing we have pretty strong support in the Convention.

Dave said...

I think we're missing the pragmatic aspects of legalization.
Legalization instantly and necessarily takes the supply out of the hands of "criminals", i.e. removes from the black market. E.g. the Mexican cartels go out of business as production is legitimized. Violence in all areas of the drug trade cease. Narcotics become free market traded and taxed commodities. Prices plummet (remember, in 19th century USA cocaine was cheaper than alcohol, and this is long before large scale industrial chemical production processes existed). In essence, legalization will cut the head off the world's largest income generator for criminal organizations while simultaneously reducing prices, generating tax revenue and increasing supply quality. With prices so low, economic crimes due to addiction will plummet, which not only reduces social and economic costs directly, but indirectly through lessening the strain on jails/courts/law enforcement. Not to mention the similar strain relief of the DEAs abolishment. And again, keep in mind that violence won't be needed to protect territory and market share, reducing indirect violence and diminishing the illegal gun trade and cutting funding used for human trafficking and corruption of officials in other countries. And of course, legalization would restore basic human liberties.