Drugs and Punishment (Wolff)

A few weeks ago I asked whether there was a good argument that those who harm themselves by taking drugs should be imprisoned for doing so. I didn’t open comments, but did invite email comments. Few took up the challenge, although Thom Brooks discussed this on his own blog and sent me his remarks. Thom didn’t attempt to justify punishment, although he did express an aesthetic preference for seeing drunks, rather than junkies slumped in the streets. I suppose I agree if the drunks are healthy looking office workers or teenagers after a night on the town (and in Newcastle, where Thom lives, this is a common enough sight). However if we are talking about street drinkers I find this a harder one to call. Yesterday my tennis game in Lincoln's Inn Field in Central London was accompanied by the random, shrill, highly abusive jabberings of a toothless alcoholic. The junkie on the next bench was comatose.

The issue has come to prominence in the UK with a front page story in yesterday’s Independent which summarises findings from a report attempting to order drugs in terms of the harm they do.

Current regulations place illegal drugs into three classes of seriousness, ordered, presumably, by the panic of the minister in charge of regulations when a new drug is discovered. Sometimes classes change. Cannabis was downgraded to Class C fairly recently. The existing classes correlate badly with the new list, ordered by a combination of harm to the individual and harm to society

No surprise to find heroin (Class A) at number one in the hit parade, with cocaine (A) following. Then come barbiturates (B) and street methadone (A) and then alcohol (legal). The rest of the list runs Ketamine (B), Benzodiazopines (C), Amphetamines (B), Tobacco (legal), Buprenorphine (C), Cannabis (C), Solvents (legal), 4-MTA (A), LSD (A), Methylphenidate (B), Anabolic Steroids (C), GHB – liquid ecstasy (C), Ecstasy (A), Alkyl Nitrates (legal), Khat (legal).

One hopes that this will help inform future drug policy.

What, then, about my question about punishment? The best argument I can think of is loosely adapted from an argument given by Warren Quinn; that the right to punish derives from the right to threaten. If I have the right to threaten you with punishment in order to protect myself, then that threat would be idle unless I could actually punish you if you attack me. Therefore the right to punish is needed to make the threat effective. By extension, if government has the right to protect me from myself, then it may have the right to threaten me with punishment to deter me from doing bad things to myself. If I then do those bad things to myself the government, reluctantly, should punish me, because otherwise it would show that its threats are empty, with no deterrent effect.

Another way of thinking about this is that punishing people for harming themselves is perplexing on a retributive theory of punishment, but makes perfect sense on a deterrence theory. First, though, we should make sure that the behaviour we want to deter really is worth deterring. This is why information such as that reported in the Independent is so important.

Comments

[Thom Brooks]

This is terrific: I really quite liked the original post, enough to say some more words on my blog. Unfortunately, I have a lot to say about deterrence, but I'll try to keep my comments to the point.

Does the right to punish rest on the right to threaten (effectively)? For one thing, this entails that we only punish actions that can be deterred...or perhaps are likely to be deterred (e.g., because otherwise it wouldn't be effective). Now this raises a *major* problem --not only with possible terrorists-- but with murderers. Most murders are acts of passion, not calm deliberation. Meting out severe punishments for murderers perhaps has a positive psychological effect on most of us (making us feel more safe), but may do nothing to actually effect crime. For example, we all know that the US has a much higher murder rate than the UK---most especially in American states with the biggest threat of all: execution. Worse, there is a great book by Eric Cullen and Tim Newell (Murderers and Life Imprisonment) that makes the case for murderers being treated far, far less severely (as they often do not get into trouble once imprisoned, less likely to re-offend [murderers almost always kill only once], etc etc etc). Now all of this suggests that basing punishment's justification on the ability to effectively deter is misplaced, as there are crimes (such as murder) that raise serious issues for such a foundation.

Of course, there is always the problem of what to do with persons who are not deterred. Jo's discussion seems to run together two different views of deterrence: special/specific and general. General deterrence is where the person(s) to deter is the general population; special deterrence is where the person(s) to deter is the actual criminal. If we're seeking only to have an effect on the wrongdoers (as it were), than Jo is making a claim re: special deterrence. If we're seeking to threaten people who haven't done anything (and want to make sure they don't), then we're talking about general deterrence. Jo makes noises in both directions, but it's unclear which he prefers.

That said, I doubt it matters. What good is it trying to deter people who would do it again or don't see the harm in their actions? Or actions that are unpopular? The right to threaten is not the justification of punishment. The justification of punishment is dependent upon the justification of the law it is meant to defend and uphold. The two are not mutually exclusive. I speak to this in my paper "An Idealist Theory of Punishment" here: http://ssrn.com/abstract=869444

Furthermore, deterrence counters our basic intuitions. If there was a law against having sex and a second against stealing cars, arguably, stealing cars is the more serious offence, yet, it would be punished less severely: we would need a more severe punishment to deter people having sex (which I doubt we could do). Some crimes will be punished more than others because of the difficulty of deterring them, not because they cause greater harm. (And Jo will have to decide whether it is harm that we equate punishment with...or the ability of the punishment to be effective: both are run together above.) We might say "hey, we wouldn't be making laws like these," however, deterrence doesn't tell us anything about which laws we should endorse. All it tells us is what we might have to do (through using threats and fear) to deter people.

In addition, if we deter crimes so that our punishment is most effective, how effective must our punishment be? 85% of the time? Better? Worse? We need some idea. We need to know we are deterring criminals. How do we know that? When Jo speaks of deterrence and drug policy---could we ever actually know how many were actually deterred by the threat of a specific punishment from a particular law? I doubt it. How do I know no one stole my Ibanez guitar in Newcastle because they felt threatened by laws agains stealing? Or laws against terrorism (people can be deterred for the wrong reasons, right?)? Or any laws? Plus, if we don't know all the laws and all the corresponding punishments (as well as possess accurate expectations of what judges/juries will decide), then we can make no judgements *at all* relevant to deterrence...even if we were rational calculators.

Finally, let us not forget Dan Kahan's excellent Harvard Law Review article on "The Secret Ambition of Deterrence." He found that whether or not a punishment was found to deter a crime ultimately had little or no effect on which punishment people would endorse. Deterrence is often something we claim to be a factor, but as a cover so that it is "the data" rather than our prejudices that determine our positions. Better to claim in polite society that one supports capital punishment because "it deters" rather than because one believes in vengeance or a version of retributivism. Or so he claims---and I think that's spot on.

All in all, a terrific topic that I hope leads to a wonderful discussion: very relevant and timely.

Of course, nothing wrong with Newcastle night life...Jo must be jealous! ;o)

[Doug]

The report cited in Prof. Wolff's post ranked cannabis #11 out of 20 in "danger" to individuals & society. The report claims that there were 16 deaths in the UK in 2004 attributable to cannabis. WTF!? There is no known case of cannabis directly killing anyone (i.e. by overdose), so this is really news to me and the pharmacological community.

The researchers must be claiming that since the person had traces of cannabis in their system when they died, that the cannabis "caused" them to die? I don't think I have to point out the flaws in this line of reasoning.

To be fair, maybe they are assuming that 14 people died from lung/throat cancer caused mostly by regular cannabis use over a long period of time--this seems plausible. So, worst case scenario, with 16 deaths attributable to cannabis and 3 million cannabis users, in the UK you have a 0.000005% chance of dying from the use of cannabis. Combine this with the fact that cannabis use rarely results in user dependence, and you have a drug that looks essentially harmless. Am I missing something?

[naiserie]

I would suspect that at least some of the "healthy looking office workers or teenagers" in Newcastle have probably indulged in illegal substances along with their pints. Very few users of illegal drugs look like junkies. Additionally, very few users of illegal drugs cause themselves harm, and the question of punishment is irrelevant.

Those few who do cause themselves harm, might be justifiably punished, but only if we mean to exclude all of the evidence as to why the harms would be avoided if the drug were legal (and tightly regulated), ignore all of the real social harms of a black market drug economy, and ignore all of the clinical evidence we have regarding drug abuse, addiction, and the recidivism of addicts imprisoned rather than given treatment. In short, there might be a justifiable reason to punish those who harm themselves taking illegal drugs, but it would be completely irrational and morally reprehensible.

[Jo Wolff]

Just to clarify: I entirely accept naiserie's points and didn't mean to be read as endorsing the argument that drug users should be punished. Other than a few problematic cases where addiction or extreme use can lead to third party harms, whether or not the drugs are legal, punishment seems to me quite wrong. I was rather trying to think through the question of whether there is any argument at all that, prima facie, could be used. Whether it is a good argument is another question. And I don't think it is. So although I probably still disagree with Thom, maybe less than he thinks.

To Doug: I was equally baffled by the cannabis deaths. I don't know how this was calculated. It should also be noted that although the newspaper says that these scores for harm were 'calculated' by experts, the report that the newspaper relies on paints a somewhat different story. Experts were asked to rank each drug on 9 parameters on a four point scale: from no risk to high risk, and then they discussed their results among themselves, and were invited to rescore. Certainly calculation was involved, but it is a rather misleading term in this context. It is essentially an informed subjective ranking.

[naiserie]

Prof Wolff, I think you were perfectly clear in your original posts.

My point is simply that I agree with you, there is no good argument. Also, out of curiousity, when you say "few took up the challenge", did you actually get any responses?

[Jo Wolff]

In response to my original post, Thom Brooks sent me the item he posted on his blog, and I got a couple of cheery encouraging messages, but no one attempted to defend punishing those who take drugs. That's why I had to invent my own defence. I was hoping to flush out a few more arguments in this post, but maybe the blog attracts the wrong sort of readership for that.

[Kosta Calfas]

To take up an interesting invitation, here is an incredibly glib retributive justification for punishing a drug user.

"punishing people for harming themselves is perplexing on a retributive theory of punishment."

Retributive punishment appears preplexing on self-injurious behaviour like drug-use, I think, because many believe retribution applys to wrongs committed by an individual to the community. This, however, maintains a separation beteween the delinquent and their community which is artifical.

According to one retributive theory (Hegel's), the function of punishment is to negate the original harm caused by the criminal act which injured the community (the delinquent being an identified member of that community). The administration of pain or disposition is used to bring to conscious attention in the delinquent of the harm they've caused to others which they themselves do not experience due to ancillary benefits of the wrong committed. The punishment, therefore, must be proportional to the harm caused, lest the criminal does not relate the pain to their act but as a mere further injustice.

When a wrong is committed, the delinquent has created dissonance between themselves and their community. This dissonance separates the delinquent and the victims of their crimes from the community and in a sense creates a pain that the criminal no longer has the objective means (vis-a-vis other members of the community) of seeing or experiencing. This is especially true of self-injurious behaviour. How is it we know the delinquent does not know or feel the pain they've caused to others? To put it another way, how do we know they're repentant? Simple, they do not actually express pain or demonstrate behaviours consistent with being in the same disposition as their victims, even when their victim is themselves. This is true a forteriori for the drug user. You might hear a physician say to an alcoholic or opiate addict "If your liver could talk, it would be crying out" which is to say "if you were in the position of the community, you would feel pain, and that you are not is evidence that it must be inflicted for your good and the good of the community."

In the case of drug use, punishment or disposition often results in treatment. Treatment involves the pains of withdrawal and often confronting those they've harmed to seek forgiveness. Repeated drug use sometimes results in imprisonment because it appears to he punishing body that the first punishment was insufficient to make the drug user realize they were harming themselves. In other words, the pain or the original punishment was disporportionate to the original harm (i.e. less).

In the picture of retribution I've sketched, the end of retribution is reidentification of the delinquent with the community which their original wrongdoing has compromised. It operates on the age old Platonic principle that no one knowingly does harm, especially against themselves.

Thanks again for the interesting topic.

[Duncan Watson]

I have nothing substantive to add to the main thread of the debate, but thought it pertinent to point out an odd feature of ranking of harm casued by various drugs. Heroin is at number one, and insofar as this reflects its current harm to the individual and society this is probably correct. However pharmaceutical heroin is a fairly cheap and safe drug with few side effects (nausea and constipation being the main problems). Habitual heroin use tends to have a large impact on society precisely because it is not legal, the price is artificially inflated so that people on a low income often resort to criminal means to obtain money to fund their use. However if the drug were sold at the prices paid by the NHS the cost to many habitual users would be less than the cost of a packet of cigarettes. In addition, access to pharmaceutical grade heroin of a known strength would drastically reduce the harm to the user of the drug. Were it assumed that all drugs were legal and the user paid a fair market rate for them the table would look somewhat different.