Rights, outcomes, and the Golden Rule in drug policy

In which Schelling, Rawls, Kant, and Jesus of Nazareth gang up on John Stuart Mill.

At yesterday’s Brookings/WOLA Congressional briefing on cannabis policy, I made my usual argument that (in rough numbers) 80% of the users of almost any drug use it moderately, take no harm from it, and do no harm to others, but that the other 20%, who use more than is good for them, account for 80% of the consumption and an even larger fraction of damage to themselves and others. My conclusion from that was the necessity of regulation, since the industry that sells the drug (or offers other potentially habit-forming services such as gambling) will always be financially dependent on dependent problem users, while the public interest is in serving the desires of non-dependent non-problem users while minimizing the number of dependent users.

Jonathan Rauch, who heads the Brookings side of the project, found that line of argument troubling. He asked me whether the interests of the responsible 80% should really have to yield to the interests of the irresponsible 20%. (Since the two groups aren’t distinguishable at a glance, there’s no way of restricting the consumption of problem users without somewhat inconveniencing non-problem users.)

That question, asked by someone whose intellect and ethical sensibility I have come to respect, led me to reflect on the difference between a moralistic or rights-based approach to a problem such as this one and a policy-analytic or outcomes-based approach. If you think of problem users and non-problem users as different people, it’s natural to ask which group’s interests ought to make way for the other’s. That seems to be a moral or constitutional question. But if you think of yourself as a potential user of a drug (or, as Jonathan suggested to me, the parent of a potential user), unable to know in advance whether your (or your child’s) use will remain controlled or will instead progress to dependency, and ask how much inconvenience in controlled use you want to sacrifice for protection against a bad habit, then you confront a practical problem rather than a moral one.

(Some readers will recognize in this Schelling’s solution to the puzzle of why it’s justified to save a larger rather than a smaller number of lives, when that’s the choice; if you imagine yourself as a member of one of the two groups, without knowing which one, it’s obvious you’d prefer a higher probability of survival to a lower one. Jonathan instead recognized this as a Rawlsian veil-of-ignorance argument, which also seems right to me.)

Of course, this same approach can be applied well beyond drug policy. Asking “How much do the non-poor owe to the poor?” is a moral question. Asking “How much protection would a reasonable person want against the risk of poverty?” sounds more like a computation. Of course, if you think of yourself as naturally immune to the risks of drug abuse or of poverty, you’ll be more inclined to let the drug abusers, and the poor, go hang. But that seems to me compatible neither with the Categorical Imperative nor with the Golden Rule. If we accept arguments from symmetry in physics, why not in ethics?

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: Markarkleiman-at-gmail.com

46 thoughts on “Rights, outcomes, and the Golden Rule in drug policy”

  1. How does the veil-of-ignorance argument differ from the Golden Rule?
    Or does it lead to the Golden Rule?

  2. Professor Kleiman,
    Have you considered the argument that making pot widely commercially available (and subject to capitalism) could improve rather than worsen habitual users’ health outcomes? Consider that the primary known risk of habitual smoking is lung/throat problems. If there were a widespread commercial industry, pot would be much more easily available in many many more forms than it is in today (edibles, oil vaporizers like with e-cigs etc). Consequently, a user who is smoking will now have a much easier option to ingest in a healthier way.
    thanks for your writing about this topic!

  3. The problem with Rauch’s argument is that the 20% of people who have substance abuse problems take a lot of the rest of the world (including the 80%) with them in terms of inflicted externalities, with alcohol being a particularly clear example.

    1. Point well taken. Responsible marijuana users are a subgroup of the group “everyone who is not a negative-externality-generating heavy user.” That larger group has a right to protect itself by reasonable regulation; and while responsible users are entitled to input, they can claim no right to immunity from being inconvenienced if that is what intelligent regulation requires. Suggested analogy: if all dog owners could be trusted to leash and pick up after their animals, there would be less justification for bans in places like many public parks. But they can’t all be so trusted, and so there are more bans than would otherwise be necessary, inconveniencing scrupulously responsible dog owners.

        1. It wouldn’t be a bad idea to consider scrupulously responsible gun-owners and their relation to laws governing their practices.

    2. That’s only true with some drugs. And it basically gets to why I am not a libertarian but think that libertarian arguments hold water a lot of the time.

      With alcohol, there are huge drunk driving and violence problems that are significant externalities. Probably more significant than with respect to any other drug. If there weren’t so many users, you could actually make a case for Prohibition, which did, in fact, reduce some of the externalities despite widespread evasion. (It created others, of course.)

      But with most drugs, the extrenalities are far smaller than they are for alcohol. Marijuana basically has almost no direct externalities at all– the harms are inflicted on the users, and the only negative effects on non-users are things that flow indirectly from the effect on users, such as spouses and children who are impacted when a pot-head can’t hold a job.

      Some other drugs have some externalities, but nothing like alcohol. Meth labs, for instance, are somewhat dangerous (but would be a lot less dangerous if they were legal). But compared to the money and property damage and physical harm done by alcohol, meth lab explosions are a rounding statistic. Same with the direct effects of taking meth– not anywhere as much violence as alcohol causes, for instance. So why are we interfering with meth users’ enjoyment of their drug and allergy sufferers’ right to medicate themselves with the medication which works for them to fight meth use?

      This is for me, the point of all this. Posit a drug that is really, really dangerous, and sure, you have to take into account externalities and the state can step in to protect us. But for most substances, the externalities are not nearly that extreme.

      And I have one response to Prof. Kleiman and positing himself as a potential drug USER. You should not assume that your subjective experience with drug use will be negative. Many, many drug users get great subjective enjoyment out of their use. That’s probably even true of many addicts. Many smokers, for instance, really and truly enjoy smoking.

      So you are talking about a far lower number than 20 percent who are BOTH addicted AND derive little pleasure from the addiction. The life you save MIGHT be your own- but it is very unlikely to be except for a very tiny number of substances.

      1. I think the problem of this talk about the “externalities of alcohol use” is that they aren’t really the externalities of the “use”. They’re the externalities of the use, coupled with something else: Driving, for instance. The obvious response to problems with A+B isn’t to ban A OR B, it’s to ban A+B. But we’ve already done that, haven’t we?

        Problem, if not “solved”, at least dealt with.

        1. Brett, we don’t JUST ban drunk driving. There are also laws prohibiting serving obviously intoxicated persons, laws that cut off sales at sports events after the 7th inning or the 4th quarter, etc. Those laws are prophylactics against drunk driving. (You can call alcohol taxes in part an anti-drunk driving policy too.) The thing is, they don’t impinge that much on liberty– that makes them very different from prohibition laws.

          I honestly don’t think you can get to a position of Prohibition of anything but the most dangerous substances without a worldview that VERY seriously devalues the fun that people have taking drugs. Indeed, I think most drug warriors basically view that fun as a negative– that it’s actually bad that people do something to their own bodies that they derive pleasure from. And there’s definitely a real strain of totalitarianism in the technocratic mindset– the idea that non-drug using government officials know what is good for other people and have every right to run other peoples’ lives.

          But you definitely CAN get to a position of greater regulation short of Prohibition, to control externalities, without disrespecting human freedom.

        2. The tendency of “mean drunks” to cause physical altercations is an externality of alcohol use.

          1. Under any health care system other than, “Let them die if they can’t pay for treatment,” there are medical costs that show up as externalities as well.

  4. I must be missing the point. Because it’s funny you bring up gambling. I think casinos should be forced to restrict gamblers’ stakes to some (small) percentage of their holdings when they walk in the door. But they can still let everyone *in* the door. If this made them go out of business, I wouldn’t care a fig.

    Of course, I can’t imagine how one could do that with drug dealers. So, maybe that’s a red herring?

    Anyway, I’d like to know — who out there is arguing that we should let addicts “hang?” This, I haven’t seen. Whereas, there are a lot of folks for decriminalizing in various forms. For me at least, it doesn’t seem like our “regulating” really stops drug use. Cuts down some tiny percentage, maybe. But, no one I know wants to hang any of them!

    1. Sweden used to have state-monopoly alcohol sales and a monthly purchase quota per buyer. Now that information is cheap, you could do that even in a commercial market. My personal preference would be for a “nudge” approach. Everyone who wants to buy has to sign up and assign himself or herself a monthly purchase limit, which that person could change … on two months’ notice.

      1. Wouldn’t people just set up secondary markets? E.g., I over-inflate my monthly purchase limit and then sell to some guy who has inadvertently bumped into his own personal ceiling?

  5. You’re right about one thing at least. I never think of myself as a potential addict. I’m too old for that. (Or, too broke? Too boring??? Ouch!)

    I do worry about youngsters though. But I don’t see how a math approach leads inevitably to … um, what exactly?

    Was this guy saying we should hand it out on street corners?

  6. The problem is, this analysis doesn’t take rights seriously. It presumes that, whatever you in your wisdom determine to be the best for other people, you are thus entitled to impose upon them. But, not just the 80%, but the 20% too, (Who might very well dispute you putting them in the 20$!) have rights. They are entitled to make their own choices, for better, AND for worse. What freedom would we have left, if we were only allowed to make the choices others thought were best? Is this analysis only applicable to drugs? Not exercise? (You! Couch potatoes! Get up and give me 50 pushups, or go to jail!) Not food? (Put down that big gulp in the name of the law!)

    It really gives you no principled basis for rejecting the distopia of forced exercise, diet, savings, buying textbooks instead of romance novels. It provides you with no principled basis for drawing any sort of line where coercion for the welfare of the coerced must stop. And the reason it doesn’t draw any such line?

    It places no value on liberty. It rejects the autonomy of the individual. It tells each person, “If you know better than somebody else, you can force them to do your bidding.”

    Maybe you’d never say that out loud, but you must be thinking that, or else you’d conceive of your opinion of what the 20% should be doing as just that: An opinion, which you could communicate to them, but never impose on them.

    I don’t want to live in your world. I want to make my own choices, and if they hurt somebody else, sure, come down on me like a ton of bricks. But if they, in your opinion, hurt me, IT’S NONE OF YOUR GODDAMN BUSINESS!

    1. Sounds like completely vapid libertarian hogwash. Do you really want to live in a society with no laws at all. I picture you with a house full of guns ready to shoot all comers. Democracy which you seem to hold in contempt requires that we abide by laws which are held supposedly by the majority to be in the public interest, but then it’s none of my business what sort of blather is being spewed about.

      1. I would like to bet that Bellmore does not think that women should be free to decide whether to have an abortion or not. My guess is that he thinks his opinion trumps.

          1. Oh no, Bret–It’s your *opinion* that abortion is murder. My opinion that abortion is NOT murder has equal weight.

            There is no consensus as to the point at which “life begins,” and certainly no consensus to the point at which the rights not to be killed of a potential, unformed person parasitically dependent on the mother’s body, trumps the rights of the mother to control her own body. Shouldn’t your libertarian principles uphold an individual’s right to chose in such cases? After all, unfertilized eggs and sperms are most certainly fully alive potential humans, and most certainly have as much potential to become a human being as they have when combined (ie: not much at all,) and many pregnancies end in spontaneous early abortions before a woman even knows she’s pregnant.

            In fact, doesn’t my opinion have more weight than yours? For I can make a clear scientific case that legal rights of human life do not begin until a fetus is no longer dependent upon the body of the woman, well after the first trimester (as the supreme court held,) while you can make no clear scientific case that a non-formed human fetus should have the legal rights of an independent, fully formed person. You don’t give children the right to vote, marry, make contracts, etc.. that adults have. It makes simple sense that fetuses don’t have the same rights as independent babies. The truth is that a fertilized egg is about 1% of human life, and the percentage increases as the fetus develops until it reaches 100% at birth. Why should your opinion that an abortion of a fetus at 1% of development is murder be better than my opinion that murder only applies to an abortion of a fetus at 90% of development? Your libertarian freedom to act as you believe are NOT infringed by legal, free, abortion. If *you* think abortion is murder, don’t have one. You still have your choice. But the reverse isn’t true.

    2. It really gives you no principled basis for rejecting the distopia of forced exercise, diet, savings, buying textbooks instead of romance novels.

      In a word, bullshit. One of the great libertarian fallacies is that it is impossible to recognize that the world is full of tradeoffs and that your principles will often come into conflict with each other. AS I talk to self-proclaimed libertarians I tend to come away with the impression that their belief structure is a desperate attempt to pretend that the world is a simple place and that you’ll never have to make a complex decision.

      1. Life is full of tradeoffs, and the statist typically figures they can decide those tradeoffs for other people, and that if those other people disagree, it only demonstrates their irrationality, disqualifying them from having an opinion about how to run their own lives.

        It’s not a question of whether there are tradeoffs. It’s a question of what YOU get to decide for OTHER people. You think you’re entitled to make tradeoffs with things that aren’t yours to trade.

        1. This is a very different statement than your original one that there is no principled basis for objection. That claim was, and remains, total bullshit.

        2. My response to your new statement is that one of the ways in which the world is complicated is that YOU get to decide for OTHER people under any system of regulation, including a complete lack thereof. You pretend that you want to leave everyone to make all of the decisions for themselves. I suspect that you even believe that, but that just means that you’re lying to yourself as well as everyone else. That’s what I mean by “. . . a desperate attempt to pretend that the world is a simple place . . .” You have a need to believe in a non-existent, non-possible world in which every man is an island and their decisions don’t affect anyone else.

          There really is no way to set things up such that we can all live happily and autonomously.

          1. Yes, good point well stated.

            Environmental regulation is a perfect example, in which the freedom of the market and individuals to pollute the air with carbon-dioxide from burning fossil-fuels is ruining the earth’s climate for all of humanity (indeed, the ecology of more species than us is being destroyed.) We’re perpetrating a massive Tragedy of the Commons. I can have NO freedom to live on a pleasant planet low on war, plague, famine, fire, drought, unless we band together to restrict the freedom of entire fossil fuel industries and modify the behavior of everyone in the world.

            I favor economic solutions rather than legal regulation: that’s why I support a CO2 tax and dividend (like Sander’s bill.) It would expedite the change to renewable energy which could save the environment and the economy at the same time.

  7. “If you think of problem users and non-problem users as different people, it’s natural to ask which group’s interests ought to make way for the other’s. That seems to be a moral or constitutional question.” In what way is this weighing of interests not an utilitarian analysis?

    The heart of the libertarian (in the sense of classical liberal) case on drugs is that the personal rights here are strongly asymmetric. The baseline is the freedom to do what you like as long as you do not infringe the rights of others to do what they like, even if it’s risky. Clearly this freedom has a negotiable boundary, and identifying the greatest compossible freedom is the difficult task of democratic politics. I would for instance want my grandchildren to grow up free from peer and commercial pressure to try addictive substances, which implies banning alcohol advertising. However, it is a ground rule in this argument that the burden of proof is on those who want to restrict liberty by law. I don’t have to make any case that smoking pot is fun. I do have to make a case that banning alcohol (or, in future, marijuana) advertising will in fact reduce experimentation by teenagers. It’s always up to the naysayers.

    PS: I wrote this before reading Brett’s slightly prior comment. For once, I find myself on a similar theoretical wavelength, though in practice I would be open to more restrictions on many rights on compossibility grounds.

    1. Compossibility It’s the first I’ve seen that one. My spell checker doesn’t like it at all.

      1. I think I got this useful and self-explanatory term from John Hick’s great book on theodicy, Evil and the God of Love. But he didn’t invent it. Wikipedia attributes it to Leibniz. Tell your spell checker who’s boss.

          1. Example: in poker (assuming you are playing with a single pack), four kings in one hand is compossible with a straight flush in another, but not a royal flush. Barack Obama cannot simultaneously be President of the United States and King of England: the roles exclude each other, and are not compossible.

  8. In terms of pot, though, I don’t see why this regulation conclusion followers. Even if 20 percent of all users account for 80 per of the consumption and an even larger fraction of damage to themselves and others, so what? Isn’t the actual damage to themselves and others pretty minor, lung problems and being lazy? It’s not like even heavy pot users are robbing and killing to fund their habit.

  9. I think previous millennia of ostensibly utilitarian analyses have made the ethical status of focusing on outcomes versus rights at least a little problematic. Necessity really is the tyrant’s plea. And cost-benefit analyses suffer from a lot of uncertainty that philosophical debates about rights or responsibilities don’t.

    Then again, for addictive or quasi-addictive substances a pure rights argument breaks down, because persons after they have become addicted are no longer free agents in the same sense that they are before addiction, so they’re choosing to bind a future self who is in many ways not them.

    That all said, I rather like the economic view of this, and see the problem as one of internalizing externalities. The suppliers want to encourage sales to the high-volume, high-trouble 20% because it doesn’t cost them anything to do so. Instead of regulating, imagine if you could neutralize that incentive, say by tagging alcoholic beverages and assigning the producers and sellers some percentage of the tort and criminal liability resulting from acts undertaken while inebriated. (You could do the same thing with other intoxicants, just as long as they were aboveground.)

    1. I agree, and I wish more politicians and media moguls were capable of the same kind of systemic thinking and economic understanding that you display with this creative solution proposal.

  10. How does the argument change if the 20% is not the “irresponsible” group but the “group inherently (genetically or …) predisposed to addiction”?

    I’m not convinced by the neuroscience argument that there is no such thing as free will but it seems clear to me that some people can no more avoid addiction by choice if exposed to certain substances than they can avoid cancer by choice.

    1. “Responsible” when applied to drinking, is a marketing term intended to get people to drink immoderately. It is a term most often used by liquor advertisers and their surrogates.

      First of all, it’s so vague that almost everybody will consider their own drinking to be “responsible.”

      Second, it shifts the blame away from the producers and onto those afflicted. If you happen to have problems, it’s because you’re not being “responsible.”

      1. Yeah, that’s a position Carrie Nation would have gladly endorsed: No such thing as responsible drinking.

  11. This 80 / 20 rule goes beyond drugs…consumption of lots of things follow this pattern in various flavors and degrees… http://en.wikipedia.org/wiki/Pareto_principle

    Thinking in terms of harms (and ignoring the “benefits” of being stoned, which can be fun, lead to creative output, etc…): The status quo is probably creating quite a bit of harm in both the 80% and 20% groups…and removing prohibition gets rid of a broad set of harms while (potentially) incrementally increasing a narrower set.

    Right now there are sets of harms that derive from addition and dependency and that those are concentrated in the 20% of users who are most dependent…that would not change if prohibition goes away and might grow if there is growth in use and access. There are also harms that are dispersed across the whole user-base that derive from the prohibition of cannabis. The threat of jail and prison time (particularly for people whose skin is the wrong color or who are born in the wrong neighborhood), the social stigma associated with use of a banned substance, the lack of good information on potency and content, and threats related to black market deal making are present for every user. Removing that set of harms might be overall beneficial at the expense of slight increases in the “20%” harms.

    Tying it together…this is not a “Pareto Efficient” outcome…but things don’t always need to be to be good public policy, do they?

  12. I don’t buy your statement that 80% of drug users “take no harm from it.”

    One or two alcoholic drinks is enough to cause cognitive impairment, which would fit into my definition (and frankly, I would think any reasonable definition) of harm. At low doses, the harm might be pretty small, but it’s more easily quantifiable than any alleged benefits. I am also skeptical of the notion that the public interest is served by the hedonistic desires of “non-problem” users.

    1. You haven’t qualified it so I’m not clear if you mean the acute (and transient) effect of just having had one or two drinks, or the chronic effect of a regimen of 1 or 2 drinks. Assuming the former, there’s harm only if the cognitive impairment is instrumental in… actual harm. If you’re on the couch in front of the TV after no work, then no harm. If you’re negotiating a traffic intersection and collide with another car, then harmful. Otherwise, we’d have to say that sleep is harmful because you’re attentionally impaired for 6-7 hours.

    2. Isn’t almost everything in life a ” hedonistic desire”? Once we move away from some very basic, necessary-for-life essentials, we’re firmly in the realm of hedonism. Do people have a “right” to buy food beyond some basic, nutritionally complete gruel? What about the right to purchase shelter beyond the bare minimum? Clothes? These are all desires that, largely, escape our collective condemnation but could easily be labeled hedonistic–especially since they all impose some degree of externalities on non-participatory compatriots.

    3. Rachel, that sounds really severe. Are you into outlawing things that give us pleasure? Where does your list start? Where does it end?

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