When exercising punitive drug laws the use of force may lead to physical and psychological harm; contact with the criminal justice system is associated with a host of health and social inequalities which may be exacerbated by prosecution [12], and if leading to the deprivation of liberty, this is inherently harmful to the individual who is prevented from doing what they want to do. For this approach to be morally justified in consequentialist terms, it would need to prevent more harm than it causes. Proponents might claim that it results in a net reduction in harm to those being punished as it deters them from using drugs in the future. However, there is not convincing evidence that this is the case and even incarceration is not a reliable deterrent as more than one in four prisoners surveyed in the UK reported drug use in prison [13].
Regardless, data from the UK suggest that most people who take illicit drugs do not do so regularly [14] and as risk is cumulative, consumption and harm tend to be correlated [15]. Therefore, as Professor David Nutt highlights in the film, for the vast majority who use drugs, the negative impact of a criminal record would be much more significant than the negative impacts of continued infrequent drug use. For those who use drugs more frequently and problematically who are at the greatest risk of harm from doing so, use often develops in the context of adverse childhood experiences [16] and socioeconomic deprivation [17]. This is highlighted by Andria Efthimiou, who has first-hand experience of heroin use: “I was obviously reacting to … a very difficult childhood of illness that nearly killed me many times; difficult family circumstances, socially, economically; stressed out mother; absent father; and drugs were a great comfort so, having another punisher as it were with the police … what’s the point?” These antecedents of other health and social disadvantages are only exacerbated by contact with the criminal justice system and a criminal record.
Alternatively, proponents of punitive drug laws might argue that the harm they cause to individuals is justified by a net reduction in harm in society overall as others are deterred from drug use. Four challenges to this position follow: first, a direct empirical rebuttal; second, a consequentialist challenge related to the unintended negative impacts of criminalising possession; third, a deontological challenge in regard to the ethically problematic nature of using humans as a means to an end; and fourth, a procedural challenge highlighting the inequitable application of punitive drug laws.
First, there is no clear association between drug policy liberality and drug use prevalence, either contemporaneously across different countries [18] or subsequently in countries that have changed their drug policy [19, 20]. Although it is feasible that punitive laws might reduce drug use in some settings, it is not a necessary condition of doing so as in Portugal the use of some drugs has continued to decrease after possession for personal use was decriminalised [21].
Second, the application of punitive drug laws may encourage behaviours that increase the risk of harm in the wider drug taking population. Fear of punishment might result in people using drugs in more secretive and riskier ways, for example by taking larger amounts before leaving the house or taking drugs that they bought hastily without examining them [22]. In addition, they may not as readily engage with harm reduction or treatment services, which would otherwise have mitigated the risks that they are exposed to [23].
Third, even if there was convincing evidence that the punishment of people who use drugs deterred wider use and did not have unintended negative impacts, it is still a morally problematic approach as illustrated by an event in Voltaire’s Candide. The eponymous protagonist refuses to step foot on English soil after witnessing an admiral being ceremoniously shot in the head. Upon asking why the admiral was executed, the characters are told “in this country we find it pays to shoot an admiral from time to time to encourage the others” [24]. Voltaire wrote Candide to confront the position of Enlightenment philosophers who argued that everything happens for a reason and that the world is truly as perfect as it would need to be to vindicate their belief in an omnipotent, benevolent god. Contrary to this, Voltaire accused the world of being “a senseless and detestable piece of work” typified by the profound injustice of the execution of the admiral and the rationale that led to it. This is the same rationale that persists in contemporary drug policy: that it is fine to use an individual as a means to an end by making an example of them pour encourager les autres (to encourage the others). When explicitly stated as such, this approach is clearly incompatible with contemporary public health ethical guidelines [25]; the ‘fundamental British value’ of ‘individual liberty’ taught in schools as directed by the same government that bolsters a criminal justice approach to drugs [26]; and the writings of the philosophers who laid the foundations of European political thought, such as Immanuel Kant and John Stuart Mill, who decried the instrumentalisation of human beings [27, 28].
Finally, even if punitive drug laws deterred drug use, had no unintended negative consequences, and were otherwise morally justifiable, they are not applied equitably as members of some ethnic minority communities are punished for the possession of drugs disproportionately compared to the amount that they use drugs. This is notably the case in the USA [29] but also in the UK [30], persisting as a face of prejudice in a world acutely sensitised to the shadow of racial inequality. If there were benefits from a criminal justice approach to drugs, it would still be ethically problematic that these benefits were contingent on causing harm that was primarily shouldered by specific groups as determined by the colour of their skin.