Utilitarianism in 'Crime and Punishment' Essay

In 2001, Portugal became the first country to decriminalize the consumption of all drugs. The result was a decline in the proportion of drug-related offenders in the Portuguese prison population (Murkin, 2014). This led many to question if drug laws — and not the drugs themselves — cause the most damage to society. Proponents of this argue based on utilitarianism and Mill’s (1849) harm principle. On the other hand, arguments for criminalizing the consumption of drugs include legal paternalism and Feinberg’s (1984) take on the harm principle. This essay is in favor of decriminalizing the consumption of cannabis, with strict age limits imposed to protect children, in the United States.

According to Mill (1849), people have the freedom to act however they wish, unless their actions cause harm to others. Harms, in this case, refers to the infringement of baseline rights. Mill takes on a liberal approach to argue that there exists a public sphere in which the individual is concerned and a private sphere where individuals should be left to make their own decisions. He asserts that showing disapproval of action through persuasion or avoidance is encouraged, but mere disapproval or dislike for a person’s actions is insufficient to justify intervention by the government. He emphasizes that silencing an individual’s personal choices is a dangerous thing for a government to do. Mill further argues that an individual’s right to harm himself must be respected, and governments must only intervene if someone else’s liberties are in jeopardy.

Meanwhile, Feinberg (1984) proposes a modified version of the harm principle. He defined harm as a wrongful setback to interests and states that there exists different extents of public harm — those that are direct and serious; and those that are highly dilute and unnoticeable. However, public harm of the latter form still should not be allowed to become normalized as it will lead to a great collective loss for the institutions involved.

Applying Mill’s harm principle, the consumption of cannabis should be justified due to the respect for one’s liberty. The mere act of consuming cannabis causes no direct harm to others and the only direct harm inflicted is to the user’s own body in terms of health, but self-inflicted harm is considered a personal right under the harm principle, and thus governments should not intervene lest they interfere with individual liberties. Notwithstanding, others may dislike the smell that comes with the consumption of cannabis, but dislike — despite the psychological harms that may follow — is insufficient to warrant government intervention. Thereafter, users may end up committing crimes under the influence of cannabis. However, instead of being criminalized for the consumption of cannabis, they should be held liable for failing to fulfill their responsibilities in the public sphere. A drunk driver who crashes into someone else gets punished for the act of drunk driving, and not for being intoxicated. Similarly, for cannabis-related car accidents, these combined practices — and not the mere act of consuming cannabis — should be restricted by the government. Therefore, the government possesses no moral authority to criminalize cannabis as users deserve the right to consume cannabis as long as they do not harm others.

Despite this, cannabis consumption is still morally unacceptable and therefore criminalized in most societies. A paternalist may argue that the government knows what is best for its people and thus has the right to criminalize cannabis consumption to protect them from themselves. Adversaries of cannabis also put forth the slippery slope argument, claiming that greater future harm will ensue resulting from the generalization and practice of immoral behavior if cannabis consumption were to be decriminalized. As such, there are certain special circumstances — such as the possible exploitation and corruption of the vulnerable — that necessitate the intervention of the law for the greater good of society (Devlin, 1965). Cannabis consumption is deemed immoral because it derives pleasure at the expense of one’s cognitive functioning (Hsiao, 2017). In this case, government intervention seems necessary, especially for the vulnerable young, to prevent users from descending deeper into immorality and to safeguard society from disintegration.

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However, individuals still know themselves best. Given a utilitarian approach to the harm principle, individuals can make the best choices for themselves and thus contribute to the greatest good for the greatest number. In the case of cannabis consumption, the risks attributed to its consumption may be negligible as compared to the benefits the users are experiencing. Even if the long-lasting impacts are regrettable, the state is still more likely to misjudge the utility of cannabis consumption due to its deficit of knowledge. Thus, individuals are more likely to make the decision that maximizes their utility and consequently society’s utility. There should thus be some limitations to the state’s power over its people. For children who lack rationality, legal force may be put in place to restrict their access to cannabis until they are deemed of age to increase the net benefit to society; after which, they are expected to be responsible for their own decisions. Therefore, adults should be given the liberty to consume cannabis as long as no direct harm is inflicted upon others.

Although there are some secondary harms associated with cannabis consumption, it is still justified because the harms are often remote. With the example of poisons, Mill (1849) points out that it is not possible to use just potential harms to justify government intervention especially when there is no direct correlation between the act and the harm caused. If a person were to get intoxicated on cannabis in a knowingly safe space, the mere act itself does not create harm. However, his act of consuming cannabis could have influenced someone else to consume cannabis and consequently commit a crime, or even more remotely caused gang warfare relating to the suppliers of the cannabis in another state. The aforementioned events transcend the responsibility of the cannabis consumer and thus, she or she should not be culpable for cannabis consumption. Therefore, there should be some limits put on the definition of Harm to ensure that the evaluated harms must concern the agents themselves (Von Hirsch, 1995).

On the other hand, it may be argued that acts that create a reasonable risk of harm should be criminalized for the betterment of society. By criminalizing cannabis, harm or the unreasonable risk of harm to parties other than the agent is prevented. This aligns with the harm principle and thus provides an appropriate reason for legal coercion (Feinberg,1984).

However, in reality, the decriminalization of cannabis may reduce the most significant of remote harms and free up enforcement costs to be channeled to rehabilitation and medical models. Under certain circumstances, it may be necessary to commit a lesser evil to avoid a greater evil. In the case of cannabis, this would involve decriminalizing cannabis to cut off the black market for cannabis and remove the largest source of funding for criminal gangs. By treating cannabis addicts as patients who needed help, and not as criminals, the police could also concentrate on traffickers and dealers, freeing up resources for the government to invest in treatment and harm reduction practices. By eliminating the threat of criminal penalties — and the stigma that is attached to it — it has become easier for people to seek treatment. After the decriminalization of drugs in Portugal, social services were put in place to educate adducts on treatment, and the available medical services and drug consumption facilities were built to provide a safe space to consume drugs with trained assistance. By decriminalizing drugs and adopting a health-centered approach, the per capita social cost of drug misuse decreased by 18% and the number of people in drug treatment increased by over 60% (Bajekal, 2018).

In conclusion, the consumption of cannabis should be decriminalized, with strict age limits imposed to protect children, in the United States. When utilitarianism and harm principles are applied, the consumption of cannabis is morally justified because each rational adult has the personal liberty to decide if they want to inflict harm on themselves. Like the prohibition of alcohol promoted organized crime and illegal trafficking, the criminalization of cannabis has had unintended consequences. Fuelled by the exorbitant profits associated with acquiring and selling illegal cannabis, the cannabis trade now bolsters organized crime and gang warfare, taking countless casualties. For the sake of our liberties and to win the war on drugs, we must reconsider the legality of cannabis.

References

1. Bajekal, N. (2018, August 1). Want to Win the War on Drugs? Portugal Might Have the Answer. Retrieved from https://time.com/longform/portugal-drug-use-decriminalization/
2. Devlin, L. (1965). Mill on Liberty in Morals. The University of Chicago Law Review, 32(2), 215. doi: 10.2307/1598689
3. Feinberg, J. (1984). The Moral Limits of the Criminal Law Volume 1: Harm to Others. doi: 10.1093/0195046641.001.0001
4. Hsiao, T. (2017). Why Recreational Drug Use Is Immoral. The National Catholic Bioethics Quarterly, 17(4), 605–614. doi: 10.5840/ncbq201717462
5. Mill, J. S. (1849). Liberty. Mill, 49–60. doi: 10.1002/9781444305746.ch4
6. Murkin, G. (2014, June). Drug decriminalization in Portugal: setting the record straight. Retrieved from https://transformdrugs.org/drug-decriminalisation-in-portugal-setting-the-record-straight/
7. Von Hirsch, A. (1995). Extending the Harm Principle: ‘Remote’ Harms and Fair Imputation. Harm and Culpability, 259–276. doi: 10.1093/acprof:oso/9780198260578.003.0020