Formalsummary on "Four Points About Drug Decriminalization" byDouglas Husak
Inthis paper, I will summarize Douglas Husak’s essay "FourPoints About Drug Decriminalization." This is a paper Husakpresented at the Annual Meeting of the American PhilosophicalAssociation’s Eastern Division in Philadelphia, on 29th December2002 where he was the lead presenter. In the paper, Husak advocatesfor the decriminalization of drug use, holding the view that thereexist no valid reasons for the criminalisation of drug use. Husakstates that “Ünlike murderers, it is plausible to suppose thatdrug users should not be punished at all, and this is what I want toargue here.” (21).
DouglasHusak arranged his essay into four points as summarized below:
1.The Meaning of decriminalization
Husakcommences by acknowledging the fact that there is no consensus on themeaning of the word decriminalization. He, therefore, sets out tofirst define it in the context of his essay, where he states that itimplies not being criminal: the use of a drug would not be a criminaloffense. Criminal offenses attract state punishment hence a personshould not be subjected to punishment for using drugs. In hisdefinition, Husak puts forward some arguments surrounding the term:
He notes that the use of drugs is rarely punished directly most jurisdictions punish possession of drugs (22). However, he dismisses this point as inconsequential, since possession is easier to prove than use.
There is no universal agreement on what punishment amounts to. Some people argue that fines and enforced treatment should be adopted as alternatives to the usual punishment. He firmly believes that these are appropriate alternative methods of punishment.
The term does not say anything about the actions that should be taken against those who produce or sell drugs
Husak’s definition of decriminalization is more or less the same as what prohibition implied when it was applied to alcohol in the 1920s. “What I call decriminalization in the context of drugs is comparable to what was called prohibition in the context of alcohol from 1920 to 1933.” (22). He embraces the term on the grounds that current drug laws are more punitive than the ones that were applied on alcohol in the 1920s.
2.The Best Reason to Decriminalize Drug Use
Husakholds that instead of arguing for the decriminalization of the use ofany or all drugs, the status quo must be defended the argumentshould be whether the utilization of any or all drugs should becriminalized in the first place. If there is no substantive reasonfor the criminalization of drug use, then criminalization is notjustified hence drug use should be decriminalized. This is hisgeneral strategy, about which he makes three points:
First,Husak acknowledges that his approach does not appeal to someessential principles, such as freedom of speech or religion, and thelibertarian principle. However, he clarifies that there is no deepprinciple that the drug prohibitions violate.
Hissecond point is an admission that his argument is inconclusive. Husakis at pains to prove that no argument for criminalization is goodenough a strategy to decriminalize drugs use. He is on the negativeside of an argument when he should be pushing his own argument fromthe positive side. He, however, focuses on dispelling the argumentscurrently cited.
Onthe third point, Husak states that his case for decriminalization ofdrugs use makes limited assumptions about justice. He assumes thatstate punishment must satisfy a high level of justification andperceives this as an uncontroversial assertion (23).
Heprovides a brief account of how criminalization occurs in the modernsociety and holds that most laws restrict liberties. When challenged,courts divide rights into fundamental and non-fundamental.Legislation that restricts fundamental liberties is thoroughlyscrutinized while those that limit non-fundamental liberties barelyattract rational basis test. Laws on drugs are usually evaluated onthe rational basis, yet they are criminal laws.
Husakdisputes the “harm principle” justification cited by philosopherssince there is little evidence that drug use results in harm toothers. The risks of harm arising from drug use are amorphous, justlike conspiracy or attempt for which there exists no theory thatjustifies their criminalization (24).
4.Predictions: A Bad Reason to Criminalize
Inthe fourth and final section of the essay, Husak considers a possiblejustification for the status quo (criminalization of drug use): thatuse of drugs would exponentially increase if it were not subject topunishment by the state. He believes this argument fails to meetempirical and normative substantiation.
Onempirical premises, he postulates that we have no facts and figuresupon which to project the result of decriminalization. Makingpredictions based on economic models of consumption is faulty sincedecriminalization will affect too many variables. Drug producers willbe obliged to pay taxes and invest in making their products safer andcompliant. This will translate in the drugs remaining relativelyexpensive, hence affordable by few. This inherently serves to justifydecriminalization.
Husakalso refutes the belief that removal of the criminal punishment forpossession or use of drugs will result in an increase in the numberof drug users. The role played by fear of punishment in relation towhether or not to take drugs is insignificant. He also states thatthere is no correlation between lower instances of drug use and theseverity of punishment. Neither do we see higher instances of druguse in countries with more relaxed drugs laws.
Husakclarifies that his argument for decriminalization of drugs use iscentered only at the state’s mandate to punish. He has no dissentif the state or any other organization discourages drug use throughother means.Husak uses the forbidden fruit allusion to advocate forthe decriminalization of drug use. The fact that drugs arecriminalized makes them more attractive to certain individuals.
Therefore,Husak argues that we desist from making predictions about consumptionof drugs post-decriminalization. The predictions do not provide agood reason uphold drug criminalization.
Husak,Douglas ‘Four Points about Drug Decriminalization’ CriminalJustice
Ethics(Winter/Spring,2003) pp. 21-29