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Externalities and Decriminalization

The classic justification for regulating individual behavior is that it violates the freedoms and especially the legal rights of others. (If an action
is not legally protected, interference with that action is less likely to
be penalized by government.) Prohibitionists routinely tie drugs to
crime. However, no drug appears to be strongly crimogenic, that is, a
trigger for criminal behavior, and especially violent criminal behavior,
against others.
Drug use may impair judgment and reduce inhibition, making some
people more likely to commit crimes. That certainly is the case with
3 For detailed discussions of this issue, see Husak, 1992: 100-30; Bakalar and Grinspoon,
1984: 35-67.
From Fighting the Drug War to Protecting the Right to Use Drugs • 257
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alcohol. But since drugs vary greatly in their effects, at most this would
justify selective prohibition, and no substance appears to generate crime
in a high number of its users. In fact, the drug laws do far more than drugs
to create crime, creating victims far and wide (see, e.g., Ostrowski, 1991:
304-05, 314-15).
Of course, drugs have other impacts on other people (see, e.g., Moore,
1993: 232-33; Taubman, 1991: 97-107; Hay, 1991: 200-25; Kleiman,
1992: 46-64). However, the criminal law normally applies to direct rather
than indirect harm, that is, when individual rights (to be secure in one’s
person or property, for instance) are violated. The criminal must cause
the harm to others, rather than engage in otherwise legal conduct which
causes incidental loss.4 Moreover, only some drug use some of the time
hurts others. Observed Robert J. MacCoun of the University of California
(Berkeley) and Peter Reuter of the University of Maryland, “it is likely
that many if not most drug users never do wrongful harm to others as a
result of their using careers