Background Assumptions

My topic is part of a broader program to identify the boundary between state authority and the moral rights of citizens. Locating this elusive boundary requires an assessment of the legitimacy of criminal legislation. I presuppose that it is sensible to believe that real or hypothetical instances of criminal legislation are justifiable or unjustifiable, and that these beliefs are rationally defensible, and not simply disguises for prejudice or arbitrary preference. Moreover, the criteria to distinguish justified from unjustified criminal legislation are to be developed within the framework of moral philosophy.'

I assume without argument that criminal legislation is unjustifiable unless it is designed to prevent harm. I will call this necessary condition of justified criminal legislation the harm principle. 2 Although the harm principle may be somewhat controversial, it should be acceptable to both friends and foes of laws prohibiting the recreational use of drugs. After all, those theorists who favor drug laws will not concede that drug use is harmless. These theorists frequently cite the alleged harmfulness of drug use as a central part of their argument for prohibitive legislation.

The connection between criminal conduct and harm may be of two kinds. Most familiar criminal laws prohibit actions that are harmful on each and every occasion in which they are performed. Murder, rape, arson, battery, theft, and the like create harms to victims whenever they occur. These crimes might be called consummate offenses. I assume that the justifiability of such consummate offenses is beyond serious controversy.

However, not all criminal laws are comparable. Some crimes are what I will call anticipatory offenses; they prohibit actions that are not harmful on each and every occasion in which they are performed — that is, they prohibit actions that are often harmless. Nonetheless, these crimes are not thought to be unjustifiable on the ground that they conflict with the harm principle. Instead, the harm principle is refined so that it becomes compatible with many of these offenses.3 Typically, the harm principle is reformulated so that criminal liability is said to be unjustified unless conduct causes a risk of harm. This revision of the harm principle allows for some anticipatory offenses to be justified. My proposal is to assess the justifiability of laws against the recreational use of drugs as anticipatory offenses — to inquire whether drug laws are defensible on the ground that they prevent a risk of harm.

Of course, those theorists who support laws against drug use need not construe them as anticipatory offenses. Someone might contend that drug use is harmful per se, so that laws against drug use are examples of consummate offenses. For example, someone might defend drug laws on the ground that each and every occasion of drug use is harmful to users themselves. Such a rationale for drug laws might be called paternalistic. I will not argue against a paternalistic defense of drug laws here." Instead, I will simply point out that the most plausible non- paternalistic defense of drug laws construes such offenses as anticipatory. Unless one believes that each and every occasion of drug use harms someone else — that one simply cannot use a drug without harming another person, as one cannot commit arson or theft without harming another person — drug laws are best construed as anticipatory offenses.

Construing a particular law as an anticipatory offense does not entail that it will prove all but impossible to justify. All systems of criminal justice, including the Anglo-American, include any number of anticipatory offenses. The clearest examples are laws prohibiting attempts. A person who tries to kill but fails is liable for attempted murder, even though he has not caused any harm in the particular case. Almost no commentator has suggested that the punishment of attempts is an unjustifiable intrusion of state authority in personal liberty.

The invitation to construe drug laws as anticipatory offenses is typically extended by theorists who favor such laws, rather than by those who oppose them. To cite one (of many) prominent examples, Joel Hay writes:

The appropriate analogy for justification of the drug laws is to the drunk-driving laws. A drunk driver is not guaranteed to cause a traffic accident any more than a crack-addicted woman is guaranteed to spontaneously abort. We outlaw drunk driving rather than merely outlawing the accidents it causes because the activity of drunk driving is unacceptably risky to others, and because this sends an unambiguous warning that drinking and driving is dangerous and lacks societal approval.5

Although Hay does not explicitly use the terminology I have introduced here, his position is clear. He suggests that the same rationale that justifies the offense of drunk driving justifies drug laws as well. Since persons who drive while intoxicated do not invariably cause harm, laws against drunk driving are paradigm examples of anticipatory offenses. Thus Hay proposes that laws prohibiting the recreational use of drugs can be justified as anticipatory offenses.

The analogy between drunk driving laws and drug prohibitions is suggestive. By itself, however, this analogy does not purport to provide a detailed account of the justificatory foundation on which laws against drunk driving rest. Thus, it is impossible to determine how this rationale applies to drug laws. Hay simply writes, without further elaboration, that drunk driving is "unacceptably risky to others." The implication is that a criminal law is justifiable if it is designed to prevent an unacceptable risk of harm to others. Can such a principle be made more precise? What factors determine whether a risk is unacceptable? And is the fact that conduct creates an unacceptable risk of harm to others sufficient to justify legislation? Or are there principles that count against the justifiability of an instance of anticipatory legislation even though it prevents an unacceptable risk of harm to others?

A free society governed by the rule of law should place clear boundaries on the authority of the state to create anticipatory offenses. The wide use of anticipatory offenses results in an enormous expansion of police power and a corresponding diminution of individual rights. The state should not be given unlimited authority to punish persons for conduct that might eventually lead to harm, even though it is not harmful per se.

Curiously, however, the scope of state authority to create anticipatory offenses has not been carefully delimited. No commentator on the criminal law has proposed an adequate theory of the general boundaries of anticipatory legislation. The need for such boundaries becomes clear by considering examples of hypothetical criminal legislation that any reasonable person would denounce as unjustifiable in principle. For example, the decision of an adolescent to dropout of school increases the risk of subsequent harm, since persons without high school degrees are more likely than graduates to engage in criminal activity. Yet no one would be enthusiastic about using the criminal law to punish high school dropouts. But why not? What principled considerations, if any, prevent the state from prohibiting such conduct as an anticipatory offense?

In what follows, I will take a small step towards remedying this general deficiency in criminal law theory by identifying three principles that play an important role in justifying anticipatory offenses. Although these principles are somewhat vague and imprecise, they are crucial in helping to establish the boundary between state authority and individual freedom. They are not mere guides to the efficient use of law, but serve as valuable aids in identifying the limits of the criminal sanction. The application of these principles should clarify why some but not all behavior that increases the risk of harm to others is justifiably prohibited by anticipatory legislation. These principles should help to explain why drunk driving is relatively unproblematic as an anticipatory offense, whereas punishment for dropping out of school would be an unacceptable use of the criminal sanction. Of course, my ultimate purpose in developing these principles is not to defend a comprehensive theory of anticipatory legislation. Any such theory would require additional principles I do not discuss here. My more modest goal is to assess the justifiability of drug prohibitions. I will conclude that the application of each of these principles creates difficulties for many attempts to justify laws against the recreational use of drugs as anticipatory offenses.

The Inchoate Principle

I will refer to the first requirement of justified anticipatory legislation as the inchoate principle: Conduct x should not be criminalized on the ground that it increases the risk of harm y unless conduct that deliberately causes y should also be prohibited. The criminal sanction is the ultimate weapon in the state arsenal. It is disingenuous to employ the last resort to prohibit conduct because it might lead to a subsequent harm unless conduct that deliberately causes that very harm should also be prohibited. It cannot be worse to create a risk that some evil will occur than to deliberately cause that same evil.

No criminal law theorist has explicitly formulated the inchoate principle as a requirement of justified anticipatory legislation, but not because it is controversial. The inchoate principle has escaped notice because the very nature of anticipatory liability virtually guarantees that it will be satisfied. There is no crime of attempt per se; a criminal attempt is always an attempt to do x. The variable x must be instantiated by a crime if liability is to be imposed.

Even though the inchoate principle seems obvious, its application creates immediate difficulties for many of the most familiar arguments in favor of criminalizing recreational drug use. One such argument cites the alleged effects of drug use on the productivity of workers. As George Bush laments: "Drug use is job abuse. It's time to say: we've had enough."6

John Kaplan has endorsed this rationale for drug prohibitions. Although he raises "both practical and moral questions" in "advocating the prohibition of [drugs] on the grounds that we must preserve the social productivity of the citizenry," and admits that "we do not usually think that the government should require us to be productive," he detects "no logical inconsistency between saying that a government should not punish laziness and saying that it may use its law to prevent access to things that make people lazy — or even aid in their being lazy."' Kaplan is correct that these statements betray no contradiction. The inchoate principle is not a necessary truth. Still, the fact that the inchoate principle can be denied coherently is no reason to do so. If applied consistently rather than selectively — to contexts not involving recreational drug use — the suggestion that the state should punish persons for using devices to facilitate their laziness would be too fantastic to warrant refutation. If adults have a right to be lazy, they have a right to use devices that increase the likelihood that they will become lazy.

Many other undesirable consequences alleged to be risked by recreational drug use cannot be invoked to support drug prohibitions without contravening the inchoate principle. Consider the claim that recreational drug users are more likely to neglect their spouses. Drug use should not be criminalized on the ground that it increases the likelihood of such neglect unless the state is prepared to criminalize neglect itself. Why should acts that merely risk neglect be punished, when the decision to deliberately neglect one's spouse is not even a tort?

Thus the (usually unsubstantiated) allegations that recreational drug use causes laziness, neglect, or many other undesirable consequences plays no role in a respectable argument for criminalization. Of course, it does not follow that laziness or neglect are beyond moral reproach. The principles advanced here are designed only to limit the authority of the state to enact anticipatory offenses; conduct that fails to satisfy these principles need not be morally innocent.

The Triviality Principle

I will call the second requirement of justified anticipatory legislation the triviality principle: Conduct x should not be criminalized on the ground that it increases the risk of harm y unless y is a substantial harm. Unless harm y is substantial, there is little reason to create an anticipatory offense to prevent it. Commentators agree that a system of criminal justice should include the rule de minimis non curat lex (the law ought not to proscribe trivial harms). They disagree, however, about the rationale for this rule. Should it be construed as a matter of principle, so that persons have a moral right not to be held criminally liable for causing trivial harms? Or should the rule be construed as a matter of efficiency, to prevent the waste that results when the "cure" of law enforcement is worse than the "disease" of criminal behavior?8

Neither alternative should be dismissed out of hand. Initially, the latter may seem to be more plausible. It may be unwise and impractical to annihilate a mosquito with a howitzer, but the offending insect has no cause to complain because it was not crushed by an ordinary swatter. On the other hand, persons are often indignant when they are punished for trivial harms. Someone charged with littering for disposing a used match is likely to feel maltreated. Such a reaction cannot be explained by supposing that punishment for a trivial offense is merely inefficient. Arguably, persons have a moral right not to be subjected to criminal liability for conduct that causes an insignificant harm.

Whatever the rationale of the de minimis principle, it might seem implausible to suppose that its application poses any difficulties for the justifiability of laws that prohibit drug use. Drug prohibitionists have attributed a staggering volume of harm to the illegal use of substances. John Lawn writes: "All told, illicit drugs cost the United States more than $60 billion a year in lost employment, prison and other criminal justice costs and treatment programs."9 Theorists who favor drug decriminalization typically counter that this statistic confuses the harm caused by drugs with the harm caused by drug prohibitions. Surely the cost of imprisoning drug offenders should not be included in the total cost of illicit drug use.

Nonetheless, suppose it is true that a sensible and realistic calculation of the aggregate cost of recreational drug use is very high. It does not follow that typical, standard instances of drug use are especially harmful. These aggregate figures say nothing about the amount of harm caused by individual acts of drug use. Although the aggregate social cost may be great, the contributions of given drug users to this total may be small. The attribution of aggregate figures to particular agents commits what might be called the ecological fallacy.10

For two reasons, the typical drug user may create almost no harm, even though the aggregate social cost of drug use is enormous. First, the aggregate figure may be high because there are many drug users, each of whom is responsible for only a small amount of harm. Even the grossly exaggerated figure of sixty billion dollars seems less worrisome when apportioned among the 29 million persons who use illegal drugs annually. By simple division, the contribution of the average drug user is less than $2,100 annually. This figure might again be divided by the numerous occasions — literally billions, according to Ethan Nadelmann — on which users consume drugs.'1 The harm caused per incidence of drug use is minute.

Second, the typical, standard drug user may create almost no harm because a subgroup of users creates virtually all of the harm. Precise figures about how the aggregate social harm of illegal drug use is apportioned among the class of users are difficult to obtain. More reliable data can be drawn from the consumption of alcohol, which may conform to a pattern similar to other drugs. About 13 percent of all drinkers consume 66 percent of the alcohol used in America, leaving only 34 percent of the total for the remaining 87 percent of more moderate drinkers." If the distribution of other drugs is roughly similar, and the likelihood of causing harm to others is (ceteris paribus) a function of the amount a person consumes," the standard drug user may not cause much harm.

It would be crucial to establish that the average, typical drug user does not create substantial amounts of harm, since criminal liability should be based on standard cases." Generalizations from exceptional cases would be unfair. Each user of a legal or illegal drug should not be treated as though she were a member of the relatively small class of persons who cause large amounts of social harm. Persons should be held liable only for the harm they cause; vicarious liability for the acts of others (except perhaps in the most unusual and carefully defined circumstances) is unjust. Sensitivity to the ecological fallacy helps to avoid the familiar but unwarranted tendency to base drug policy on generalizations from worst-case scenarios.

Chester Mitchell concludes that the small amount of h arm per standard use of both legal and illegal drug use explains why the imposition of tort liability would not be effective in deterring consumption. If he is correct that the amount of social harm caused per incidence of drug use is so small that the standard user "is not worth suing,"" it seems fair to ask whether this amount might be too trivial to qualify for criminal liability as well.

The Remoteness Principle

I will call the third requirement of justified anticipatory legislation the remoteness principle: Conduct x should not be criminalized on the ground that it increases the risk of harm y unless x and y are sufficiently proximate. The concept "proximate" makes this principle vague and imprecise. The general idea is that an anticipatory offense should not be created if the conduct to be criminalized is too remote, distant, or far removed from the ultimate harm. Examples may help to clarify this elusive principle. The probability of a traffic accident that is reduced by prohibiting drunken driving could be reduced still further by prohibiting conduct that is more remote from the ultimate harm.

For example, the state could create a new anticipatory offense of drinking at a bar without a designated sober driver. Criminalizing such conduct would contribute to the goal of preventing traffic accidents. Yet this proposal is objectionable because it would criminalize conduct that is not sufficiently proximate to the ultimate harm.

The remoteness principle has two distinct but related rationales, each of which supports the judgment that adults are more likely to have a moral right to engage in conduct the further it is removed from an ultimate harm. The first rationale is simply a function of probabilities. The greater the distance between x and y, the less the likelihood that persons who commit the anticipatory offense will ever cause the ultimate harm. Few persons who drink in bars without a designated sober driver will cause a traffic accident. As conduct becomes less likely to culminate in an ultimate harm, the more persuasive is the judgment that persons have a moral right to engage in it.

The second rationale invokes a conception of a responsible human agent. Persons who perform the anticipatory conduct in question might take any number of intermediate steps to minimize the likelihood that the ultimate harm will occur. For example, many persons who drink in bars without a designated sober driver choose not to become intoxicated, or elect to use public transportation to take them home. Because of the availability of these precautions, the creation of an anticipatory offense of drinking at a bar without a designated sober driver would sweep too broadly. Any such offense would punish persons who would have taken steps to prevent the occurrence of the ultimate harm. To punish persons without first determining whether they would have chosen to take these steps, and thus to lump them in the same category as persons who disregard precautions, would treat them as less than responsible human agents.16

Although criminal theorists have not explicitly identified the remoteness principle as a general requirement of justified anticipatory legislation, it plays a prominent role in arguments about how existing anticipatory offenses should be interpreted. For example, commentators have long struggled to identify the point at which a defendant commits whatever act(s) constitute a criminal attempt. Does a person commit an attempted rape by lying in wait for a possible victim? Reasonable minds have disagreed. As a general matter, if liability attaches too early, many defendants who would have changed their minds and abandoned their plans will be convicted unfairly." The rule requiring that a defendant is not guilty unless he takes a "substantial step" toward the commission of a crime applies the remoteness principle to interpret the law of criminal attempt's

The remoteness principle also plays a significant role in debates about proposals to create new criminal offenses. Most states recently raised the minimum drinking age from 18 to 21. One of the rationales in favor of this change is that intoxicated drivers between 18 and 21 are more likely than intoxicated drivers who are older to cause traffic accidents. This rationale construes the new crime of drinking between the ages of 18 and 21 as an anticipatory offense designed to reduce the risk of highway mayhem. Of course, driving while intoxicated is already an anticipatory offense in every state. This new offense is more remote from the ultimate harm to be prevented, and thus is subject to great controversy.19

The remoteness principle creates difficulties for justifying an anticipatory offense of recreational drug use. Much of the rhetoric in favor of drug laws construes the crime of recreational drug use as doubly, triply, quadruply, or n-tuply anticipatory: Jones's use of marijuana should be prohibited because it might induce him to try cocaine, which might cause him to become addicted, which might lead him to become poor, which might make him more inclined to commit a crime. Each additional link in this causal chain decreases the chance that the ultimate harm will occur, and increases the probability that the initial act is protected by a moral right. Moreover, the fact that drug users might choose to take any number of intermediate steps to reduce the likelihood that the ultimate harm will occur is ignored or forgotten when this rhetoric is used to support drug prohibitions. Many drug users adopt elaborate precautions to minimize the risk that their consumption will result in harm.200 It is unfair to punish the prudent because others are imprudent.

In this light, consider William Bennett's putative justification for targeting casual users in the war on drugs. He contends that the "non-addicted casual" drug user "remains a grave issue of national concern," even though such a person "is likely to have a still-intact family, social and work life" and "to 'enjoy' his drug for the pleasure it offers."21 Nonetheless, Bennett insists that the casual drug user should be punished severely, because he is "much more willing and able to proselytize his drug use — by action or example among his remaining non-user peers, friends, and acquaintances. Anon-addict's drug use, in other words, is highly contagious."22

Bennett's rationale adds even more distance between the anticipatory offense and the ultimate harm to be prevented. Smith's problem-free and casual use of a recreational drug should be prohibited because it might lead Jones to experiment with a drug that might make his behavior more likely to conform to the (already lengthy) causal scenario described above. In perhaps no other context is this theory of "imitative harms" accepted as an adequate justification for criminal liability. It seems preposterous to punish Smith's harmless behavior on the ground that Jones might imitate it. And if Smith's life has not been adversely affected by his use of drugs, why worry that Jones might mimic it? The imitation, like the original, may not be harmful either to Jones or to others.

The remoteness principle is all but fatal to the analogy between laws that prohibit the consumption of drugs and drunk driving laws. Quite simply, users of illegal drugs might take the same precautions as drinkers of alcohol to minimize the risk that their consumption will harm others. In the case of alcohol, many drinkers can and do decide not to drive. Users of illegal drugs should make this same choice. Punishment may be imposed for persons who fail to make this choice, and decide to risk the safety of others by driving. Those who advocate the repeal of drug prohibitions should concede that some restrictions on drug use are appropriate. But this concession no more requires the total prohibition of recreational drug use than it requires the total prohibition of the consumption of alcohol. If the analogy between drunk driving and drug consumption were sound, the recreational use of alcohol, like the recreational use of illegal drugs, would be totally prohibited. But those who endorse this analogy, like Hay, do not advocate the reintroduction of the prohibition of alcohol. Presumably they oppose alcohol prohibition on the ground that the conduct to be criminalized is not sufficiently proximate to the ultimate harm of traffic accidents. They should reach the same conclusion about drug prohibitions.

Concluding Remarks

I have described three principles —the inchoate, triviality, and remoteness principles — that any instance of an anticipatory offense must satisfy in order to be justified. I do not claim that any single principle presents insuperable obstacles for every attempt to justify laws against the recreational use of drugs. Each principle creates difficulties only for some arguments in favor of drug laws, and drug prohibitionists offer several distinct arguments for preventive legislation. In any event, the application of these principles depends on empirical facts about drugs and drug users, and these facts are subject to enormous dispute. Moreover, someday a new substance might be invented that may be criminalized without compromising any of these principles. Nonetheless, I conclude that the conjunction of the three principles I have described creates serious problems for many familiar attempts to justify laws against the recreational use of existing drugs as anticipatory offenses.

Douglas N. Husak is a professor of philosophy at Rutgers University.

P.O. Box 270; New Brunswick, N.J. 08903-0270.

Endnotes

1 See Douglas Husak: Philosophy of Criminal Law (Totowa, N.J.: Rowman & Littlefield, 1987).

2 See Joel Feinberg: Harm to Others (New York: Oxford University Press, 1984).

3 George Fletcher: Rethinking Criminal Law (Boston: Little, Brown and Co., 1978), p.402.

4 See Douglas Husak, "Recreational Drugs and Paternalism," 8 Law and Philosophy (1989), p.353.

5 Joel Hay: "The Harm They Do to Others: A Primer on the External Costs of Drug Abuse," in Searching for Alternatives, ed. by Melvyn Krauss and Edward Lazear (Stanford: Hoover Institution Press, 1991), p. 218.

6 See Jerri Husch: "Of Work and Drugs: Notes on Prevention," in Drug Policy 1989-1990:A Reformer's Catalogue, ed. by Arnold Trebach and Kevin Zeese (Washington: The Drug Policy Foundation, 1989), p.228.

7 John Kaplan: The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago Press, 1983), p.132.

8 See Paul Robinson: "Legality and Discretion in the Distribution of Criminal Sanctions," 25 Harvard Journal on Legislation (1988), p.393, 431-434.

9 John Lawn: "The Issue of Legalizing Illicit Drugs," 18 Hofstra Law Review (1990), p.703, 713-714.

10 See Lonn Lanza-Kaduce and Donna Bishop: "Legal Fictions and Criminology: The Jurisprudence of Drunk Driving," 77 Journal of Criminal Law & Criminology (1986), p.358, 363.

11 Ethan Nadelmann: "The Case for Legalization," 92 The Public Interest (1988), p.3.

12 7 Bottom Line (1986), p.17.

13 Chester Mitchell: The Drug Solution (Ottawa: Carleton University Press, 1990), p.284.

14 See Andrew von Hirsch and Nils Jareborg: "Gauging Criminal Harm: A Living-Standard Analysis," 11 Oxford Journal of Legal Studies (1991), p.1.

15 Mitchell: Op.Cit. Note 13, p.203

16 My emphasis on agency creates the possibility that the remoteness condition can be subsumed under the empirical condition, since some theorists have argued that conduct not sufficiently proximate to an ultimate harm does not cause that harm. See H.L.A. Hart and Tony Honore: Causation in the Law (Oxford: Clarendon Press, 1959).

17 See American Law Institute: Model Penal Code (1985), sec. 5.01(4).

18 Id., sec. 5.01(1)(c).

19 See Feinberg: Op.Cit. Note 2, pp.199-202.

20 See Norman Zinberg: Drug, Set, and Setting: The Basis for Controlled Intoxicant Use (New Haven: Yale University Press, 1984); and Patricia Erickson, Edward Adlaf, Glenn Murray, and Reginald Smart: The Steel Drug: Cocaine in Perspective (Lexington: D.C. Heath and Co., 1987).

21 William Bennett: "National Drug Control Strategy," Office ofthe National Drug Control Policy (Washington, 1989), p.11.

22 id., p.11 (emphasis in original).