Apersuasive case for the decriminalization of drugs is one that succeeds in establishing the following two claims:

1. All justifications offered for continuing to punish drug use are ethically unjustifiable.

2. Not only are there no good reasons to justify the punishment of individuals for engaging in drug use, but there are also plenty of good and positive reasons to decriminalize recreational use as well.

In The Legalization of Drugs, Douglas Husak mounts a persuasive case that seeks to defend both claims and thus establish that the continued prohibition of drug use is ethically unjustifiable. Here, I will discuss Husak’s arguments for the second claim, that is, the positive reasons he gives us for drug decriminalization. The reason for this focus is primarily because responses to common prohibitionist claims (things like “Marijuana should be illegal because it’s a gateway drug”) are much more common than positive cases for decriminalization.

The moral principle central to the case for decriminalization is that no one should be punished without excellent reason to do so.

The claim is a simple one: You shouldn’t punish people unless they deserve it. Given that there are no good reasons for punishing recreational drug users, it follows that drug decriminalization is the just and sensible position for the state to adopt towards recreational drug users.

In its simplest form, the argument goes like this:

1. No one should be punished without excellent reason to do so.

2. There is no good reason to punish recreational drug users.

3. There are good reasons to allow individuals to engage in risky behaviors, so long as those behaviors do not violate the rights of others.

4. Therefore, recreational drug users should not be punished.

6. Jail, prison, probation, and fines are all forms of punishment.

7. Therefore, jail, prison, probation, and fines for recreational drug use ought to be abolished (decriminalization).

Notice that this strategy is one that places the burden of proof solely on the shoulders of proponents of punishment for drug users. Far too often, debates over decriminalization erroneously assume that because the illegality of drugs is the status quo, anyone seeking to change the current state of things is burdened with the task of providing positive reasons for decriminalization, which conveniently ignores the responsibility of the state to justify its policies.

If neither the state nor defenders of our continued drug policies can provide a rational justification for the continued practice of incarcerating drug users, then the use of punishment by the state against drug users is morally unjustified.

Ideally, debunking the arguments of drug prohibitionists would be enough to establish the moral imperative of decriminalization, but Husak goes one step further. He sets out to provide positive reasons as to why the law ought to abolish the practice of criminal punishment for drug users. That is, the negative case aims to rebut arguments for prohibition, while the positive case aims to establish that decriminalization is worthwhile.

The Value of Drug Use

Why do drug users engage in illicit drug use? One popular answer to this question is mood control. We take drugs to steer our moods and consciousness in desired ways.

This is true not only for illicit but also licit drug use. We consume caffeine mostly in the morning when we are tired and want to feel more awake. We consume alcohol in the evenings when we want to unwind and relax. So the rationale for drug use is one we already feel comfortable and at home with: people consume substances to steer their consciousness and moods in a direction they desire.

Many individuals use marijuana to relax; others take LSD to have fun; others use MDMA as a social lubricant—to “open up” to individuals and also empathize with them to a degree they otherwise would not be able to; amphetamines are taken as an energy boost, to improve concentration, and relieve the tedium of boredom. Drugs, both licit and illicit, are valuable insofar as they allow us to control our moods and steer them in directions we otherwise would not be able to achieve in their absence.

A crucial observation here is to note that we don’t tend to demand justifications for other recreational pastimes. We don’t demand of football fans that they provide a justification for their enjoyment of the sport. Such a justification would be extremely difficult to provide given that most people’s preferences for any given team are arbitrary. Yet this arbitrariness has no bearing on our tolerance of such sports fanaticism. We allow people the liberty to act according to their own preferences because doing so is the mark of a free society. We allow individuals to pursue their pastimes because doing so brings them pleasure, and we recognize that this pleasure is the only reason we need to accept the many hobbies and pastimes people become involved with.

Of course, there are limits. We do not allow individuals to harm one another simply for pleasure. In such cases it is the duty of the state to intervene in order to protect the rights of the victimized. But when no rights are being violated, the state tends to adopt a policy of tolerance. It should be noted that drug legalization and/or decriminalization is perfectly consistent with the view that while recreational use is to be tolerated, engaging in drug use that directly puts the lives of others at risk or creates the possibility of harm should be punished.

The law already accounts for this, most commonly for driving under the influence of alcohol. It is perfectly consistent to hold the view that recreational use in one’s own home (or designated places) ought not be punishable, whereas operating heavy machinery, driving, public intoxication, and/or being under the influence at work should be subject to punishment, depending on the severity of the risk and the substances being used. Decriminalization is not the view that one’s personal responsibility to others is no longer subject to state regulation. The view being defended here is the idea that recreation for its own sake, in the right kinds of environments, ought not to be subject to criminal punishment.

Of course, our initial response to this might be to ask “but what about when recreation is dangerous?” The answer is that our recognition of the value of recreation must come with a certain level of willingness to allow individuals to take risks when engaging in the activities they choose to pursue. We tend to tolerate risks when individuals engage in the use of licit drugs when using them is for the purpose of treating some kind of medical condition. And yet, why do we tend to not tolerate such risks when we engage in drug use for the sake of recreation?

Our zero tolerance policy for the dangers associated with recreational drug use is difficult to defend in light of our acceptance of the dangers involved in other recreational activities we do tolerate. Presumably none of us would think that the risk of sky-diving is so high that individuals who engage in that pastime ought to be punished for doing so.

Consider the dangers associated with scuba diving, bull running, free climbing, white water rafting, heli-skiing, and base jumping. The mortality rate for many of these activities is much higher than the mortality rate for many of the drugs we use recreationally. Why don’t we require that the individuals engaged in these activities provide a good justification for engaging in them? Because we are willing to allow people to decide for themselves whether they value these activities. Because even when we cannot fathom why anyone would jump out of an airplane with a parachute simply for the thrill, we defer to their judgment about whether such activities are worth the danger.

So Husak’s case can be summarized in this way:

If we do not require individuals to have a very good reason, such as the need to cure a disease or illness, before we allow them to engage in extremely dangerous activities, then why do we require such reasons when the recreational activity they’re seeking is drug use?

Earlier I explained that Husak is engaged in two projects: a negative case and a positive one.

The negative case is made on the grounds that there are no good reasons that the state has provided to justify its policy of punishing recreational drug users. Since punishment is one of the worst things the state can do to us, any instance of punishment requires moral justification before the state can legitimately use it as a form of social control. Since there are no good reasons the state can or has provided to justify its use of punishment to control recreational drug use, then such punishment is unjustified. The case is negative because it places the burden of proof on the entity that is seeking to engage in punishment.

The first step in the positive case is to establish that drug use is valuable insofar as we value and tolerate recreation when doing so does not infringe on the rights of others. We value recreation and we value the ability to steer our consciousness and moods in directions we deem desirable. Recreational drug use allows us to do this. Consequently, there is instrumental value in recreational drug use, value that we recognize in other avenues as not being worthy of punishment. Therefore, we have provided at least one positive reason for the decriminalization of recreational drug use.

In the absence of good reasons for the continued prohibition of drug use, and given that there are positive reasons to decriminalize, the ethical course of action is to put a halt to the continued punishment of individuals who engage in substance use for the sake of altering their consciousness in ways they deem desirable.