By Brian Earp

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Forget about “medical marijuana.” Isn’t it time to legalize heroin in the United States? Recreational cocaine? Ecstasy? LSD? How about the whole nefarious basketful of so-called ‘harder’ drugs?

Yes, it is, says Ron Paul, a fourteen-term libertarian congressman and obstetrician from the state of Texas. It’s a view shared by virtually none of his Republican colleagues, nor, for that matter, very many Democrats. Nor really anyone in the “mainstream” of American politics. But in this post, I’ll argue that he’s right.

Paul—who is currently making his third bid for President of the United States—offered his perspective to comedian and Daily Show host Jon Stewart in an interview earlier this week:

“I think drugs [like heroin] are horrible. I think they’re dangerous—prescription drugs as well as illegal drugs. I think they’re very, very dangerous. But the war on drugs, which violates civil liberties—getting people busted in their houses—that is the danger … [So] I fear the war on drugs more than I fear the drugs themselves.”

The “war on drugs” is dangerous indeed; it has failed, and failed dramatically. A new report by the Global Commission on Drug Policy concludes that that “political leaders and public figures should have the courage to articulate publicly what many of them acknowledge privately: that the evidence overwhelmingly demonstrates that repressive strategies will not solve the drug problem, and that the war on drugs has not, and cannot, be won.”

The commission consisted of such figures as former U.N. Secretary-General Kofi Annan, former U.S. Federal Reserve chairman Paul Volcker, and the former presidents of Mexico, Brazil and Colombia.

But what sort of “evidence” do they mean? What’s so bad about the war on drugs? A 2009 article in the Economist—to pick one of countless sources making the same point—renders the situation vivid:

The United States alone spends some $40 billion each year on trying to eliminate the supply of drugs. It arrests 1.5 million of its citizens each year for drug offences, locking up half a million of them; tougher drug laws are the main reason why one in five black American men spend some time behind bars. In the developing world blood is being shed at an astonishing rate. [And] far from reducing crime, prohibition has fostered gangsterism on a scale that the world has never seen before.

Ron Paul is right. The drug war is “bad” not only because it plainly doesn’t work, but because it actually brings about much greater harm than the activities it wages against. In light of this fact, the Global Commission on Drug Policy made a number of common-sense recommendations, summarized here. Highlights include:

Encourage governments to legally regulate drugs to undermine the power of organized crime and safeguard the health and security of their citizens

Offer a variety of health and treatment services

Invest in serious drug education programs (not cheap slogans like “Just Say No”)

Focus repressive actions on violent criminal organizations, not on individuals

Replace ideology-driven drug policies with policies and strategies grounded in science, health, security, and human rights

These are all good ideas, and measures in line with such recommendations have already been shown to work. As Denis Owsley and Sarah Serot explain in this excellent article, Portugal had the worst drug problem in Europe in the 1990s, and chose to abandon its war on drugs for the failure it had proven itself to be. In 2001, it decriminalized the possession of small amounts of drugs by individuals, with the result that drug deaths are now down 40 percent. But that’s not all. Owsley and Serot report:

Crime is down. HIV/AIDS incidence is down 17 percent. Drug treatment rates have doubled because people are voluntarily getting treatment. Marijuana use among teens fell 33 percent because it is no longer forbidden and glamorous. Drug use remained stable and only increased at the same rate as the rest of the world.

Despite statistics like these, many people, even progressive and liberal-minded people, struggle to go “all the way” with Dr. Paul and support the wholesale legalization of drugs across the board. Jon Stewart, for instance, in the interview I mentioned above, seemed to advocate for something like a compromise in his response to Paul’s argument. That is, he acknowledged the failure of the drug war with respect to substances like marijuana, but implied that heroin use should be kept legally off-limits:

“There’s so much that you say that appeals. And then I always feel like ‘Ron Paul, he’s really telling it like it is,’ and then you’ll go one step and I’ll go ‘No, Ron, oh.’ We were talking about the drug war and the legitimacy of the drug war, and you were saying that this was failing, and I was listening to you and thinking ‘Yes. Ron Paul, he’s schooling these guys.’ And then you went, ‘Like heroin for instance.’ And I went, ‘No! Ron!”

But why? Why put heroin in a class of its own? To ask the question another way, does it make sense to be opposed to the drug war in general, but support a limited ban on certain drugs seen as being especially addictive and harmful?

I think the pragmatic answer to this question has already been given. Criminalizing heroin, cocaine, and other ‘hard’ drugs simply doesn’t work; so to ban them achieves no good end. But if heroin were legal, some might say, wouldn’t droves of new users get in line to start the habit? As Paul asked a debate audience in South Carolina in May: “How many people here would use heroin if it were legal? Oh yeah”—signal sarcasm—“I need government to take care of me; I don’t want to use heroin so I need these laws!”

Paul might be right in his implied point that heroin use wouldn’t go up by much, at least long-term; but he might be mistaken. Those data would have to be collected. For my part, I can certainly imagine some individuals who might seize legalization as an opportunity to experiment with harder drugs—so it’s not inconceivable that this type of fear could be borne out. But libertarians like Paul would respond that if that really did happen (that is, if some people might try certain drugs if they were legal but not otherwise) it wouldn’t be the end of the world. Here’s why.

Libertarians believe that people should be maximally free, with one condition. That is, people have a right to do whatsoever it is they please—including stupid things that present a danger to themselves, even a grave danger, even danger to the point of death—just so long as they do not harm anyone else in the process. If they pose a threat to others, yes, the law can step in; otherwise personal liberty should be held paramount.

On the libertarian view, if a person wants to use heroin, knowing the addictive and life-destroying possibilities it harbors, the government has no business telling her she can’t. The government can educate; the government can persuade—but it has no moral right to force. It’s her body; it’s her life. Paul is also a strict federalist, by the way, which is relevant too. This means that he believes that nation-wide drug laws are by their nature overreaching; indeed, he thinks that they are inherently invalid as they deprive individual states of a vital prerogative. That prerogative, of course, is their 10th amendment right to experiment with legislation at a local-lab level—a constitutional design feature with huge practical benefit, since it allows for the generation of separate streams of real-world data on contentious issues, such as drug policy. It allows us to see what really works, or what works best in different situations.

So I should clarify Paul’s view. He doesn’t explicitly advocate the wholesale, immediate legalization of heroin and other hard drugs, nation-wide, as a practical policy measure in the US (though he clearly would support such a move in a libertarian utopia); but he does think that each state should be free to ban—or not to ban—substances of that ilk as they see fit.

Let’s re-cast the war on drugs, then, as a problem not just of pragmatics, but of principle. Given libertarian premises, at least (there are obviously many other premises to which we could appeal, including those concerning, e.g., racial justice), the question here is: Can it be consistent to defend a person’s right to harm herself if she chooses to do so … but only up to a point? Can you draw a line at marijuana, say, and leave heroin beyond the pale?

The answer, I think, is no.

It seems to me that the main concern here is third-party harm. That is, heroin can rightfully be banned if and only if its use can be shown to harm individuals other than the user. Remember: libertarians believe you have a right to take actions—even stupid, dangerous actions—so long as the one at risk of being hurt is you and you alone.

Then a few points arise:

First, you could obviously argue that an individual’s heroin use does indeed harm people other than the user. I don’t know enough about heroin to offer convincing examples, but insofar as the drug can gradually destroy a user’s body and mind, I expect that anyone who loves or cares for the user would be harmed—emotionally at least—by her disintegration. And insofar as this type of harm is worse for heroin than for marijuana, say, it could be a valid libertarian grounds for distinguishing between the two drugs in debates about legalization.

But arguments like this strike me as weak. People engage in all sorts of self-destructive habits and behaviors that cause emotional harm to loved ones, and we’d never think of banning all actions which cause this sort of harm to others. So is there another type of third-party harm we could invoke? Something more grounded, more physical?

What if heroin caused the user to commit terrible acts of violence, while under the influence, or at least made the commission of such acts much more likely under typical circumstances? But this won’t work, either, since heroin use—like marijuana use, and the use of several other presently illegal substances—has an inverse relationship with violence and aggression. The relevant counterpoint is alcohol which, as is well known, is significantly more likely to facilitate third-party physical harms than heroin, pot, and so on. But alcohol of course is legal, as it must be; prohibition doesn’t work.

So what are we left with? As far as I can make out, if a person has a right to engage in actions which are harmful only to herself, and if heroin is harmful in just this way—given the clarifying arguments and examples I’ve just explored—then there can be no good basis for banning even so dangerous a drug. Such bans don’t work, anyway; indeed they lead to greater overall harm to society than the drugs themselves.

The use of heroin, therefore, like that of ‘softer’ drugs like marijuana, should be treated as a medical and educational issue, rather than a criminal one. What do you think?

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