Thursday, May 18, 2006

Drugs: The Nebraska model . . . of decriminalization

Steve Chapman's latest column at The Chicago Tribune takes off on President Vicente Fox's veto of the decriminalization law he had been supporting. Chapman notes that decriminalization is all around us -- not only the "left coast" of California and Oregon -- but Nebraska and Mississippi, and Spain, Italy and Portugal. It has not led to drug tourism anywhere, except for The Netherlands.

Decriminalization has had a bad rap in American drug policy reform circles for at least the past decade because as an end point, it leaves the drug distribution system in criminal hands with all of its vices. I have condemned decriminalization repeatedly and criticized it in my 1995 article in the Villanova Law Review (pp.403-405).

Reading Douglas Husak's Legalize This! (available used at for as little as $5.98) I have come to understand decriminalization as a policy with enormous intellectual value. It is a policy proposition that puts the burden of proof on the prohibitionists. It does not purport to answer the question, "What should we do about drugs?"

The decriminaliztion analysis begins with several extremely important primary questions, "Is it just to punish a recreational drug user? What is the justification for a law that punishes a recreational drug user?"

Husak argues that criminal laws may only punish an individual for the personal offense of the individual. The conduct of the accused must merit punishment. It is unjust to punish you for what someone else may do or may have done on the ground that punishing you might deter others from doing the unwanted act.

It is unjust to punish a person because you want them to do something that is good for them.

It is insufficient to justify the punishment of someone simply because "the conduct was against the law." That is not a justification for the law itself.

It is insufficient to justify the punishment on the assertion that the conduct is "immoral." More of a standard is necessary, for we do not punish "immoral" acts such as breaking a promise, breaching a contract, or cheating on a boyfriend, girlfriend or spouse. (And besides, it is hard to demonstrate that recreational drug use is "immoral.") A poll as to what is immoral does not suffice for justifying a law.

And quite importantly, Husak argues that there are benefits from recreational drug use, such as the control of mood -- the opportunity to create euphoria or pleasure -- that should not be discounted.

Steve Chapman's column, "The False Threat of Liberal Drug Laws," notes that decriminalization may be more of a reflection of a society's view of the seriousness of a behavior than a green light to engage in the behavior.

He suggests, apropos of President Fox, perhaps Mexico would benefit it if were more like . . . Nebraska.

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