Why does a government have the moral right to take away the rights and liberties of someone who committed a crime? In other words, if it is wrong for someone to kill someone else, then why does the government have the right to kill the killer? An easy out would be to say that killing in its entirety is wrong irrespective of whether a person does it or the government does. Okay, but what if a private citizen decided to lock a stranger in his basement for a period of time? That citizen would be in a lot of trouble. So what gives the government the right to incarcerate people? This question has been asked since the dawn of civilization. And if you think about it, it’s not an easy one to answer. Philosophers, rulers, and religious scholars alike have all struggled with this question.
In the Western world, there are two commonly cited reasons as to why the government has the moral and philosophical right to take away a perceived criminal’s rights. The first is retribution. The second is deterrence. Retribution is the ancient idea that the only way to right a wrong is to inflict the very same damage on the culprit that he inflicted on others. The idea of “an eye for an eye” is as old as humanity itself and it is alive and well today. However, since about the 1600’s people have been trying got come up with a more enlightened approach to justify punishing. The best they could come up with is the idea of deterrence. The theory of deterrence is basically that it is the goal of a society to create the maximum amount of happiness for the most amount of people possible. Since crime reduces happiness, society must deter it. The best way to deter crime is for the potential criminal to understand the ramifications of his actions if he gets caught in advance of him actually committing the crime. He then chooses not to commit the crime because he knows if he does, he will likely either go to jail or be killed. And the potential victim is spared the crime and can go on being happy.
In the Anglo-American common-law there are two categories of illegality. The categories are “malum in se” and “malum prohibitum.” They stem from the concepts discussed above. “Malum in se” is Latin for “inherently evil.” “Malum prohibitum” is Latin for “evil because its prohibited.” In other words, we recognize that there is conduct that is so inherently evil, that you don’t even really need to be told that it is illegal. We already know because the conduct is the antithesis of our values. No one needs to be told that murder, rape, and larceny is illegal. They already know that. These beliefs span numerous cultures. However, we also recognize that for society to function effectively, we need to proscribe certain conduct that isn’t in and of itself “evil.” For example, our society has decided that drinking more than a certain amount of alcohol and then driving is dangerous. So the government passed a law that states that you can drink and you can drive, but you can’t do both at around the same time. The same is true for laws against firearm possession. Although these people aren’t necessarily doing anything wrong, the risks of them engaging in this behavior is great, so the government needs to ban them from doing it for safety reasons. If you think about it, just about every law can be divided into one of these two categories.
So what does all of this have to do with the American drug laws? Well, despite the occasional claim by a governmental official that drugs are evil, the reason why certain drugs are illegal is because the government believes they are so dangerous that they need to deter people from using them for the public’s own good. And the best way to deter the public is to threaten to incarcerate people if they are caught possessing or selling the drugs. The problem, however, is that the drug laws, as they are currently constituted do not deter anyone.
It has been reported that few people base their decision on whether to do drugs based on the drug’s legal status. Moreover, the deterrent effect of our drug laws are negligible. Usually, when a government wants to deter certain behavior and when its efforts are not working, they ratchet up the punishment until the deterrent effect is reached. It stands to reason then, that the government should increase the penalties until people truly are deterred. That would at least be rational and consistent with the government’s goals. However, the opposite is happening.
The only thing the government accomplishes in keeping drugs illegal, but not so illegal that people are actually scared to use them, is a thriving black market. This is the height of irrationality. Just to be clear, I am not advocating for stricter drug laws. I am merely pointing out that the laws, as they are currently constituted, make no sense.