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.’