Today we launch yet another new regular feature at Soup. Call it: Bleeding Heart Soup. Mmmmm, doesn’t that sound good! Our friends at the blog Bleeding Heart Libertarianism will regularly initiate posts on Soup in hopes of encouraging folks to more regularly hear points of view you might otherwise miss.
Today’s post is by Andrew Jason Cohen and Bill Glod. The issues discussed here are taken up at greater length in a forthcoming paper of theirs.
A Bleeding Heart Libertarian View of Paternalist Drug Laws
Andrew Jason Cohen and Bill Glod
Many believe the war on drugs is justified to protect people from harm done to themselves with drug use. Such paternalists should wonder about the effects of their laws. Self-harm does not occur in a vacuum, but neither does punishment. A heroin addict might be hurting his friends and family, but what happens to them when he is imprisoned? What happens to him?
When punishing people for activity that harms no one but themselves, we must ask whether we abide by the principle of non-maleficence: “first, do no harm.” We should ask if our laws are likely to end up harming the drug users and their families more than the drug users would harm themselves.
There are now more that 300,000 people in prison for violating drug laws. These people are unable to work, be with their friends, their spouses, their parents, or their children. These penalties are significant and the evidence that they gain is sparse. The same is true for those friends, spouses, parents, and children—they lose the intimacy, support, and assistance they would have received from those incarcerated for violating drug laws. Their gains are usually nothing.
There are always innocent third parties of a “war.” The “War on Drugs” disproportionately affects the poor and minorities. It has also resulted in more potent drugs. (If an individual risks punishment for transporting 1 oz. of a drug, she will want to make it as potent as possible.)
The more criminal laws there are, the more people–especially poor people—will be affected. If one of us received a $150 fine for a traffic violation, he would likely pay the fine within days (assuming he either agreed the violation occurred or thought it wasn’t worth fighting). If charged with drug possession, we would be able to get efficient legal advise.
For many, paying $150 fine or getting worthwhile legal advice is not so easy. (Public defenders offices in many places are simply unable to supply all of the needed assistance.) Paying for either might preclude paying the rent, the gas bill, or for needed medicines. Yet, not paying the fine may mean even higher fines—and even arrest warrants. This is one very clear reason that any criminal law has a disproportionate affect on the poor.
Public choice theorists contend that paternalistic rationales are mere smokescreens and that the driving forces of the war on drugs and other supposedly paternalistic policies are revenue-driven, structurally racist, etc. Pharmaceutical companies make more money if they have less competition, including competition from purveyors of currently illegal drugs (some might smoke marijuana instead of taking valium). Our police forces and courts treat powder cocaine users differently then they treat crack cocaine users. Removing the paternalistic rationales would leave the ugly truth exposed—a vast improvement.
Removing ostensibly paternalist laws against drugs might result in a larger number of people harming themselves. We have doubts about that, but it’s worth noting that it assumes normal people are weak and/or irrational (hence harm themselves) while assuming that those who craft and enforce laws know the outcomes of the laws they pass and enforce.
As Frederick Bastiat noted, politicians act as if the majority “tend to evil,” vice, and “degradation,” while they themselves “incline to good” and virtue. It is only because they think so highly of themselves that they think they can pass laws that will help the rest of us. The same is likely true in a broader fashion with many thinking of those that violate paternalist laws as less capable or worthy when in fact it is entirely likely that they should think “there but by the grace of god, go I.”
Ultimately, it is undemocratic to tell people how to live their lives through means other than persuasion—it is an attempt by the self-declared elite to substitute their judgment for that of the rest of us.
Note about the Authors
Andrew J. Cohen, Associate Professor of Philosophy at Georgia State University, author of Toleration (Polity Press, 2014), blogger at bleedingheartlibertarians.com.
Bill Glod, Independent Scholar
I don’t have much time for paternalist drug laws and certainly as is they are responsible for an unconscionable number of non-violent people, disproportionately black people, languishing in jail. But I am not sure about the claim that such laws presuppose that the lawmakers are better and more virtuous than those that the laws are designed for. Suppose I admit that, were I in your circumstances, I too would struggle to avoid taking drugs. But I think that taking some drugs dangerous and imprudent. How does the recognition that I too would struggle with imprudence if in those circumstances suggest that I ought not support such laws? I don’t see why the lawmaker who supports paternalistic drug laws needs to deny that “there but for the grace of God, go I.” Further, quite generally, one might well think, humans are prone to weakness of will. In such cases there is an advantage to having an advisor make the decision rather than the person who is feeling the temptation. Again, the law-maker need not think they are better or less prone to weakness of will, just that they themselves are not now feeling such temptation themselves and so better able to make the decision the subject themselves would make if they were advising themselves. Think back to the famous marshmallow experiment where kids exhibited weakness of will in not being able to wait 5 mins to get an extra marshmallow rather than getting 1 now. In such cases I imagine if kid x was making the decision for kid y, likely kid x would not themselves be subject to weakness of will. This despite all the kids being equally subject to it.
First, I think its probably sufficient for our purposes to note that the assumption “that those who craft and enforce laws know the outcomes of the laws they pass and enforce.” That assumption is clearly problematic. That said, while its an empirical question, I suspect the further assumption is plausible. I hear this sort of claim far too often–“Don’t do the crime if you can’t do the time!”–sometimes with a smugness, usually with a seeming lack of understanding that the likelihood of someone being subject to correctional interference is directly correlated with where they were raised. (Consider that wealthy and middle class white neighborhoods have significant numbers of drug users but that those users are seldom arrested.) Adding that Jeff Sessions is the likely new US AG (and that his chief competition seems to have been Rudy Giuliani) I think these sorts of beliefs and attitudes are all too prevalent in society; to think they are not present in legislative bodies seems unlikely.
I see. So you are not claiming that paternalism necessarily involves such an attitude. Rather you are just saying in our society some paternalism is motivated by the fact that some lawmakers think of themselves as superior in these ways.
Right. But I’d also add that some paternalism in our society seems to lead to that attitude. X is made illegal, those that don’t do X can then frown upon those that do. I think this is common.
I guess I also wondered about putting the complaint against paternalist drug laws in terms of being undemocratic. I assume that you would think such laws unjust even if they were directly voted on by the society and received majority support. Correct me if I am wrong, but I assume you would think such paternalistic laws just as bad even if they clearly had a democratic pedigree.
You are right. For me, this is an audience issue. We’ve both written directly against paternalism elsewhere, but we don’t here or in the longer paper that develops the argument. Rather, we aim to show paternalists (and social welfarists) that they too should reject the sorts of laws that might be thought to be defended with their views. One way to put this: we want to convince paternalists and social welfarists that they too should oppose (whether by vote or by legislative power, should they have it) such laws.