The purpose of criminalising drug use is supposedly to reduce such usage and the resultant negative effects thereof – which seems like a perfectly acceptable aim. However, if we accept that reducing ill effects is an acceptable aim for a state to have, then the questions around any policy with such an aim have to be: is the policy compatible with the purpose of the state, and does the policy work? These are the two questions around which the case for legalisation coupled with regulation of drugs should be made.
There are two broadly conflicting ideals in the mainstream of the legalisation vs criminalisation argument: that criminalisation infringes upon people’s liberty to do what they wish with their body provided it does not adversely affect others; and the notion that the state has a duty of care to its citizenry to criminalise substances that would have adverse effects on the people who took them, which counteracts the aforementioned liberty. On the face of it, both arguments are broadly defensible – which is in part why the debate has been raging for so long with so little progress – but is there a way to move beyond these two arguments and implement a policy which combines the main factors from both? That is to say (to use a much overused political phrase), is there a third way?
If we accept both that people have the right to do as they please with their body, and that the state has a duty of care over them, then is the simplest of middle grounds not to legalise and regulate as far as is humanly possible to ensure safety? Research and regulations to ensure the highest quality substances are the only ones legally allowed to be sold would make drug-taking much safer, and thus not infringe upon civil liberties in the slightest – the state imposing regulation to ensure safe products (as has been done with alcohol and tobacco to an extent) seems to fulfil the state’s duty of care while allowing personal liberty to go unchecked.
That said, this is in no way a blanket ‘let’s legalise all drugs’ argument by any stretch. There are some harder substances which should not be legalised, because the only form of regulation to make these drugs safe under a realistic duty of care is criminalisation. The more dangerous the drug, the more serious and deep the regulation must be – legalisation up until the point at which a substance no longer fills this criteria. Yes, those drugs that are criminalised will violate some aspects of one’s liberty, but reasonably if there is no fundamental way for a substance to be made safe, then the state’s duty of care must be to criminalise it.
Additionally, legalisation of drugs provides an advantage that goes beyond a mere regulatory framework (and no, not taxation, which will be discussed further down). A substance which is legal and heavily regulated can be discussed more readily in educational environments, enabling a long-run advantage in that young people will be – by the very nature of the regulation surrounding the product and the educational advantages – more aware of the potential health effects of misusing substances and of taking black-market varieties.
As for the latter question: whether or not the policy works should certainly be the metric by which we judge drug policy. In the status quo, we have criminalised drugs and yet not stopped the consumption of them – a simple poll on any university campus can point you to the proliferation of recreational drug use or experimentation in our society – so in short, the current policy does nothing to achieve the cardinal aim of reducing drug usage. Even worse, because we cannot regulate and legislate for the quality of a substance that is illegal, it is likely that the harmful side effects of drug use will be even greater in a criminalised system.
Allowing people to freely use a product would, at first glance, seem an unlikely means of reducing drug use. However, many drug users may view the act of breaking the law by taking a fairly harmless substance as a safe way to send an anti-establishment message and look cool in front of their friends. If we decriminalise, we remove drugs from anti-establishment culture and make them less of a rebellious act – if taking a drug is no longer flaunting the law, then perhaps rebellious teenagers in particular will be less likely to use drugs, and thus fewer people will experience potential long term side effects of drug use. This point is perhaps particularly strong when one takes into account the ability to increase awareness of health side effects of drug use through education and advertising that would be opened up through legalisation.
Because we cannot regulate and legislate for the quality of a substance that is illegal, it is likely that the harmful side effects of drug use will be even greater in a criminalised system.
While some may argue with the line of analogy raised in the previous paragraph, there is perhaps some merit to it given empirical evidence taken from Portugal. When Portugal decriminalised all drugs, drug usage didn’t go up and in many cases actually decreased – perhaps more importantly the harmful health side effects from drug use decreased notably. There would, it seems then, be some merit to achieving our pre-stated aim of reducing both drug use and negative effects from drug use through a policy of decriminalisation and legislation.
Another important social point to raise while dealing with the latter question is that of the black market. The black market for drugs would obviously not be destroyed entirely by such a policy – as was accepted earlier, a state’s duty of care remains such that some drugs would still be illegal, and therefore there would exist a black market in those drugs. However pushing many softer drugs into a legal and regulated position makes it unlikely that any black market dealers would be able to compete with higher quality, more easily available substances produced legally – thus vastly reducing the revenue available to black market dealers, which is often used to fund gangs and other unsavoury activities.
Finally, and a point intrinsically linked to the themes that have run throughout this argument, the issue of taxation is an important one. While the tax benefits often lauded by the legalisation campaigns are surely not the best reason to pursue a policy of legalisation, they are certainly important. If we can receive income from legalising drug use, then we can use that income to fund a variety of projects – not least further research into how to make drugs even safer, further education on the negative effects of drug use, and further efforts to crack down on the aforementioned black market dealers.
The debate around drugs is often an ideological one: individual liberty vs duty of care. It need not be so. If we pursue a rigorous, empirical process of legalisation and regulation to ensure safe and legal drug use, compatible with the state’s duty of care, then we can fuse the two ideological positions into a pragmatic and sensible drugs policy. Is such a policy compatible with the purpose and role of the state? Yes. Would such a policy be successful in reducing drug use and the harmful effects associated with it? Yes.
It is time for a fresh approach to drug policy. The approach outlined here works on both of the important counts.
Matthew Cowley is a second-year student of Politics and Economics at the University of Southampton.