The Marijuana Paradox and the Right to Sin

Windsor County State's Attorney Bobby Sand's Forum letter in today's Valley News is worth a ponder. Sand frames the decriminalization debate in terms few have acknowledged and effectively exposes the political motivations behind the hyperbole. It might also be read as a gracious gesture towards Governor Douglas who has been on his back heels over marijuana since the day he tried to make populist hay of Sand's prosecutorial discretion in the Martha Davis matter.

Sand's thesis is straightforward: Our national drug policy is a tremendous drain on law enforcement resources with very little to show for the effort. With marijuana use widespread, a significant minority of voters against criminalization, and thousands of lives disrupted by arrest and prosecution for marijuana possession, we need to reconsider our drug policy -- and marijuana laws in particular -- in a rational and dispassionate manner. Political ambition, expressed in the sanctimonious manner Jim Douglas exhibited this past autumn, does not help.

I would go a step further.

I've seen people I care about destroyed by illicit drugs -- even marijuana, which I would otherwise consider a less addictive substance. I've seen people I care about destroyed by alcohol abuse. I've seen the lives of people I care about shortened and weakened by addiction to tobacco. Having witnessed the price of addiction firsthand, I cannot say decriminalizing illicit intoxicants -- or greater access to licit ones -- is a good idea. But that's not the issue.

There are plenty of things Americans are allowed to do that aren't good ideas -- some which utterly repulse me. I don't think flag and cross burning are a good idea, but I accept that those too close-minded to recognize the deep insult of their actions have the constitutional right to make fools of themselves. The pornography industry is huge in this country, deemed an exercise in free speech protected by our First Amendment. The idea of watching other people have sex doesn't do it for me, but I accept that millions of Americans will pay good money for the vicarious thrill. I don't think pornography is a good thing for the actors or the audience, but that's not the issue.

The issue is one of individual liberty and the extent to which our laws may limit individual liberty for the benefit of society as a whole. The issue is our right to sin.

Take tobacco for instance. Unlike alcohol -- an illicit drug in this nation for a decade -- tobacco has never faced a complete legal prohibition. While there are likely some beneficial characteristics to tobacco consumption, there's really no question smoking and chewing tobacco regularly has a serious, progressive, negative impact on the health of the user. By law, we've prohibited the sale and use of tobacco by minors on the principle that minors do not have the mature capacity to choose what's best for themselves. By law, we've recently prohibited smoking in indoor public spaces on the principle that workers employed in those spaces aren't truly free to avoid the secondhand smoke. Compared to the outright prohibition on alcohol in the 1920's and on marijuana today, these are relatively nuanced measures to balance public health concerns with individual liberty -- not unlike the balance we've struggled to maintain with regard to free speech.

Can we find a similarly nuanced approach to marijuana and other illicit intoxicants? Can we recognize the individual's right to be intoxicated balanced against society's right to be protected from secondhand injury due to that individual's indulgence? I cannot imagine why not. But that question -- the proper balance between an individual's right to sin and society's right to be protected from injury -- isn't even on the table for discussion.

Why do we recognize and protect the rights of the pornographer, the drinker, and the tobacco smoker, but deny adults the right to mistreat their bodies using other intoxicants? Certainly, the pornography, tobacco, and alcohol industries are now so well entrenched financially that they can mount an effective defense against legislation seeking outright prohibition. But that can't be the whole answer, as social mores regarding alcohol, tobacco and pornography have shifted substantially over the decades; alcohol and tobacco treated more stringently since the 1960's and pornography actually finding wider acceptance within the mainstream.

Ultimately, it may simply be a matter of majority rule. A lot of people like the intoxication of alcohol and nicotine. A lot of people like watching other people have sex. Not enough people like the intoxication of marijuana, methamphetamine, or opiates to tip the political scales against prohibition?

Unfortunately, the cost to this minority -- their families and neighbors -- is horrific. By driving the market for these intoxicants underground, we've abandoned millions of people to a criminal underworld which mocks the law-and-order sanctimony of our politicians. Selectively denied their right to sin -- their addictions arbitrarily criminalized -- we feed a cycle of property crime, prostitution, and exploitation which our prisons and police are finding increasingly difficult to contain. It is politically expedient to sweep the mess under the rug, but the cost in terms of individual lives and innocent bystanders is immense.

Political expediency and majority rule can and do perpetuate terrible injustice at times. Our founders understood this and sought to enshrine the supremacy of individual rights in our Constitution. This did not prevent the perpetuation of slavery, racial segregation, the disenfranchisement of women, or Prohibition, but it was instrumental in the eventual remedy of each over time.

As a society, we need to insist upon our right to sin. Since our founding, we have recognized an adult's right to sin by decriminalizing divorce, contraception, engaging in homosexual acts, and gambling -- to the chagrin of many. This right to sin is not a monolithic trump to reason. The right to sin with tobacco, alcohol, and XXX videos is not without counterbalancing restrictions for the protection of broader society. Drunk driving, secondhand smoke and child exploitation for sexual gratification are legitimate dangers to others and thus legitimate bases for regulation. Despite the distaste many may feel, it is time to confront the implications of recognizing an adult's right to sin with a broad range of illicit intoxicants, not least marijuana.

Our forty year experience with this "War on Drugs" raises legitimate and difficult questions regarding the war itself. As we've learned, sometimes we lose wars because we were mistaken about the enemy. We talk about this "war" in terms of foreign narco-terrorists and drug cartels, but we've actually been fighting a war against the desire of millions of Americans to intoxicate themselves. Who are we, as a nation, to deny individual citizens this right so long as they exercise it without harming others? Who are we, as a people, to consign fellow citizens to a criminal underworld entirely of our own legislation? The impulse to control society for our perception of the "greater good" has within it the seeds of tyranny. Our insistence upon the rights of individuals -- enshrined within our Constitution -- forces us to question our own provinciality regarding what we believe to be the greater good. We err badly pursuing wars founded, not upon our defense of individual liberties, but rather upon our own sense of righteousness. We're going to lose this war, even if we win.