Should all drugs be legalized, and would such a policy lead to a more just and healthier society?

A legal argumentative essay arguing against the legalization of drugs.

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1. Introduction

Since President Nixon declared the war on drugs in 1971, societal attitudes toward drug legalization have undergone significant transformation, shifting increasingly progressive in nature. Yet, the heterogeneity of drugs and drug users defies simple categorization. 

Recent years have seen the emergence of polarized extremes in the drug policy debate. Proponents of drug legalization cite the counterproductivity of existing drug laws, in that “zero tolerance policies” have exacerbated social and racial inequalities while failing to curb high rates of incarceration and overdose deaths. On the other hand, prohibitionists warn that leniency risks increased overdose death rates, higher youth addiction and dependency, and the undermining of public health and social order.

2. Thesis

In light of this ongoing debate, I wish to put forward an argument against drug legalization.

Using a cost-benefit analysis, this essay argues that drug legalization will result in far worse public health, economic, and crime rate outcomes for society, resulting in a significantly less just and healthy society. I will first argue against legalization utilising Mill’s Harm Principle. I will also outline the key arguments in favour of drug legalization and show why they are unconvincing.

Because there is a lack of evidence that proves, to any meaningful capacity, that drug legalization would lead to a more just and healthier society, I conclude that drugs should not be legalized. 

We must first articulate what a “more just and healthier society” denotes. As these are normative ideals, I draw from Sen’s capability approach in defining a more just society as one in which individuals have the freedom and real opportunities to achieve meaningful lives that they have reason to value, that they otherwise are restricted from due to a consequence of drug criminalization. A healthier society in this context would mean a quantifiable drop in overdose and addiction rates, improved mental and physical health outcomes, and increased access to rehabilitation services. Under this framework, I assess drug policy through a harm-reduction lens, where the optimal system is the one that minimizes total societal harm. I also define drug legalization as a system in which the production and sale of drugs are not criminal offences. 

3. Main Body

3.1 Applying Mill’s Harm Principle to Drug Policy

A fundamental assumption of the legalization argument that drug laws, not drugs, cause the most damage to society. This is a dangerously reductive view. In the status quo, illicit drugs are criminalised precisely because their use presents inordinate levels of mortality and morbidity. Drugs like heroin, cocaine and opioids “fundamentally interfere with the natural functioning of body metabolism and brain chemistry…” and often result in physical addiction and severe, irreversible physical harm. These harms are measurable – since 1999, drug overdoses have directly killed almost a million people; in North America, they are the leading cause of death for adults aged 18 to 45. Beyond physical harm, drug use also heavily damages one’s psychological well-being. Chronic drug consumption is closely linked to developing or heightening mental health conditions like anxiety, depression, psychosis, and an elevated risk of suicide. 

Having established that drug use brings harm to the user, this argument appeals to legal paternalism (LP). I argue that according to Mill’s Harm Principle (HP), in that preventing harm to others is the integral condition in which the State is able to exercise coercion against individuals, it is justified for the State to “limit personal liberty” to put a stop to this harmful act. The argument can be stated thus:

1. The law should prohibit voluntary acts that result in self-harm or harm to others

2. Drug use poses a substantial risk of both 

3. Therefore, the law should prohibit drug use

However, it is important to note that promoting public health is not the inherent rationale behind the criminalization of drug use. Numerous legal recreational activities, like mountain climbing or horse riding, pose much higher health risks, but they are still allowed. For example, obesity is a far bigger health issue than illicit drug use, if risk justified prohibition, criminalizing it would save far more lives than harshly punishing drug use. Instead, this paternalistic approach to drug policy is defensible because of the addictive nature of drugs that cause a “weakness of the will”. Illicit drugs like heroin can chemically alter brain function and overpower a person’s rational judgement to a high degree. As Marneffe argues, they become “irrational” in the substantive sense where because of the psychological relief drugs provide, they choose to abuse it even when it results in the sacrifice of other things that hold greater value for them (their job, family, friendships, health). This erosion of free will not only makes drug use risky but fundamentally incompatible with personal freedom. Thus, the justification for paternalistic interference is strengthened and warranted in this regard.

Along this line of argumentation, I present several LP considerations that are compatible with HP, none of which individually provide a conclusive basis for denying access to drugs. However, each consideration raises the threshold for justifiable drug use. Taken collectively, they support the continued prohibition of drugs as a more efficient policy than the legalization of drugs. 

Principally, I assert that the choice to take drugs in a capitalistic society will not ever be truly autonomous. Firstly, the choice may not be an informed one. If drugs are legalized, they will be subject to advertising. Historical evidence supports this concern: Since the legalization of marijuana in more than half of U.S. states, online targeted advertising has exposed more vulnerable adolescents to persuasive messaging. It stands to reason this would extend to legalised drugs as well and compromise on informed choice. 

Consider this hypothetical: Person A, who wants to lose weight, views an advert and mistakenly believes that heroin’s sole medical effect is weight loss. A’s decision to use heroin cannot be considered meaningfully autonomous. In fact, as it is proven empirically that drugs inflict grievous harms to the user, A’s decision may itself be prima facie evidence of misinformation. In On Liberty, Mill offers the example that if there is no time to warn a stranger of crossing an unsafe bridge, he is justified in forcibly stopping his crossing, “for liberty consists in doing what one desires, and they do not desire to fall into the river”. Thus, the principles of legal paternalism provide a compelling justification for the continued prohibition of drug access. 

Secondly, addiction itself progressively undermines autonomy. Sustained drug use in a legalised system quickly erodes any capacity for consent due to the chemical altering of brain function which results in “violent symptoms of withdrawal” such as “seizures… and many other physical and neurological deficiencies”. I argue, therefore, that the individual’s mental state becomes so damaged that they cannot make their own informed decisions, and the state needs to intervene. In this deficient state, an individual is also significantly more likely to engage in reckless, criminal behaviour to obtain drugs, which might result in harm to other members of society. Thus, the State is justified in continuing to prohibit drugs to stop exactly this from happening. 

A counter-argument that the Libertarian could put forth is that one needs only initial consent, as long as the individual understands clearly that the drug is extremely addictive or dangerous before using it for the first time. However, this argument is flawed. It assumes that your present-self can justifiably bind your future-self to irreversible, self-destructive decisions. As behavioral economists and philosophers note, human preferences are dynamically inconsistent. As the preferences of a sober individual often diverge radically from those of their addicted future self, who may come to regret their decision but lack the physical and psychological capacity to reverse it. Hence, I argue that the autonomy one loses through drug addiction extends far beyond voluntary slavery – while slaves can be freed or escape, there is no cure for drug addiction. As such, drug legalization not only exposes vulnerable individuals to immense harm but undermines the very freedom it claims to protect. Consequently, the State remains justified in continuing to prohibit access to drugs as a rational, compassionate response to the reality of addiction. 

3.2 Key Arguments for Drug Legalization

With such principles in mind, this next section focuses on outlining and refuting foundational arguments raised by proponents of the legalisation of drugs. It follows that, if I am able to prove the key justifications for drug legalisation as unsound, the case for liberalization loses its normative force. 

3.2.1. “Legalization Eliminates Drug-related Crime

One of the primary justifications for legalising drugs is the elimination of drug-related crime. Under legalisation, prices must fall enough to remove illegal trade incentives. The optimal price under legalization, in theory, will be the highest price possible without inducing significant criminal activity by the consumer in order to minimize price-related increases in demand. 

This is easier said than done. Within a permissive policy framework, prices would be close to costs of production This theoretically would eliminate opportunities for illicit undercutting. But for drugs to be legalized in any meaningful capacity, a more restrictive regulatory framework will have to be implemented. Government-controlled outlets, medical prescription schemes, and stringent quality control measures must be introduced together with legalisation. Only with these safeguards can drug legalization be meaningful in its public health benefits such as reducing contamination, the spread of infectious diseases through dirty needles, as well as overdose deaths. Thus, I argue that it is far more likely for the black market to remain or evolve to satisfy the legally unfulfilled demand.

Furthermore, the argument that criminals will be put out of business by legalisation fails to realise that a significant portion of the illicit drug market has always targeted teenagers (12 to 17), an age group that, even after legalisation, would continue to be prohibited from purchasing drugs, similar to tobacco or alcohol. As a result, criminal effort will be more focused on this vulnerable age group than it does now, resulting in increased youth addiction. Moreover, evidence suggests that legalisation could implicitly suggest to children that they must simply “say no” until reaching an appropriate age, potentially peer pressuring youth eager to “act grown up” to experiment prematurely with drugs. Rather counterproductively, we are worse off in health consequences for the youth than in the status quo. 

3.2.1. “Legalization of Drugs Generates Economic Benefits”

Another argument for drug legalization is economic: it says legalize drugs, and generate tax revenue. However, to “legalize and tax” is both ethically and economically flawed.

Ethically, this proposal would be a regressive tax on society’s most vulnerable. Framing drug dependency as a source of public income is morally reprehensible, proposing a “perverse tax… on marginalized cohorts” towards economic gain. By this logic, would partisans argue for the legalization and taxation of intractable crimes such as human trafficking for their economic potential? 

Economically, this argument is also based on poor fiscal logic. Costa argues that any savings that arise from a reduction of law enforcement and incarceration costs would be offset by increased expenditure on public health due to the rapid rise in drug consumption as a result of legalisation. Historical evidence from legal substances such as alcohol and tobacco demonstrates this. In 2007, U.S. federal and state governments collected roughly $14.5 billion in alcohol taxes, yet alcohol-related harms cost society over $185 billion annually. A similar imbalance exists with tobacco, which generates about $25 billion in tax revenue but results in over $200 billion in healthcare and productivity losses. There is little reason to believe that legalized drugs would fare better. 

Conclusion

In conclusion, the costs of drug legalization far outweigh its purported benefits. Through a harm-reduction framework, this essay has demonstrated that prohibition more effectively minimizes the social, psychological, and economic harms associated with drug use. While proponents invoke liberty, economic gain, and public health, these justifications fail under closer scrutiny. Continued prohibition, though imperfect, remains the more coherent and ethically defensible policy. Therefore, the legalization of drugs should not be pursued.

(1996 words)

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