Justice-Based Argument for the Uniform Regulation of Psychoactive Drugs, A

A Justice-Based Argument for the Uniform Regulation of

Psychoactive Drugs

Chester N. Mitchell*

In the author’s view, modem drug control
legislation is founded upon myth and prej-
udice rather than on principles of justice
and scientific validity. Restricting his anal-
ysis to psychoactive or psychotropic drugs,
he makes a justice-based reform argument
to the effect that since such drugs share the
same characteristics, they should, as a matter
of fairness, be made subject to one regu-
latory system. Current regulation of psy-
choactives ranges from prohibition with
criminal sanctions to widespread availa-
bility for drugs like caffeine, nicotine and
alcohol. The author explores five possibil-
ities for reform and ultimately proposes
the adoption of a public law system of tax
disincentives.

Les “psychotropes” sont sujets i des sys-
tames de r~glementation difrerents tels ]a pro-
hibition sous peine de sanctions criminelles
pour certains, la prescription m~dicale pour
d’autres ou la libre circulation comme c’est
le cas pour la cafeine, ]a nicotine et l’alcool.
L’auteur considare cette pluralit6 de r6gle-
mentations comme 6tant discriminatoire 6tant
donn6 que tousles psychotropes partagent les
memes caract~ristiques de base. Apr~s avoir
d~montr6 que les dommages impos6s A la so-
ci6t6 par l’usage des drogues ne sont pas assez
6lev6s pour justifier une sanction criminelle,
et que, d’autre part, la m~dicalisation grn6-
rale des psychotropes confererait au corps
medical un pouvoir qu’il n’est pas apte A as-
sumer, l’auteur en vient A ]a conclusion que
le contr~le des psychotropes doit 8tre pris en
charge par ‘Etat en crrant un systame uni-
forme de taxation sur la vente des psychotropes.

*B.A.(Queen’s), LL.B.(Western Ontario), LLM.(Harvard). Of the Department of Law, Car-
leton University. Research funding for this article was provided by Carleton University. The
author is also indebted to Dr Shona S. McDiarmid for her valuable assistance.

McGill Law Journal 1986
Revue de droit de McGill

19861

PSYCHOACTIVE DRUGS

213

Synopsis

Introduction
I.

The Legal and Scientific Classification of Drugs

A. Divergent Legal Classifications
B. Convergent Scientific Classification

1. Mechanism of Action
2. Multi-purpose Effects
3. Health Impairment
4. Habit Formation and Dependency

II. Drug Control and Principles of Justice

A. Justification
B. Proportionality
C. Fairness

III. A Comparative Justice Analysis

A. Taking Human Rights Semi-Seriously
B. Utilitarianism and Liberal Pragmatism
C. Taking Justice Seriously
D. Justice and Regulatory Design

IV. Uniform Regulation

A. Criminal Prohibition
B. Prescription and Medical Supervision
C. Government Rationing
D. Tax-Licensing Controls
E. Free Market Controls

Conclusion

Introduction

Over a century ago, Anglo-American laws tolerated prostitution and
regulated, for the most part, the nuisance aspects of commercial sex. Then,
following various scandals concerning venereal disease, child prostitution

REVUE DE DROIT DE McGILL

[Vol. 31

and “white slavery”, legislators bowed to pressure exerted by the self-right-
eous and enacted increasingly draconian anti-prostitution measures throughout
the nineteenth century.’ Often these measures compelled the women in-
volved to submit to medical controls, a strategy still supported by those
who would medicalize prostitution.2 A similar wave of intolerance and med-
ical imperialism altered the legal status of drugs and drug users during the
same period. 3 By 1847, drunkenness had been labelled a “disease of the
mind”, the American Society for the Promotion of Temperance had been
established and the State of New York had for two years banned the public
sale of liquor. American lawmakers then moved federally to prohibit non-
medical alcohol use, heroin production and marijuana cultivation. 4 By 1921,
cigarettes were illegal in 14 states and they remain illegal to those “under
age” in 47 states. 5 While the prohibition of alcohol and tobacco was largely
abandoned through the 1920s, the zealous criminalization of other drug use
was continued. This crusade prospered because it served certain purposes,
none of which related to justice or public protection. In general disregard
for principles of both justice and scientific validity, modem drug control

‘See J. McLaren, “Chasing the Social Evil: Moral Fervour and the Evolution of Canada’s
Prostitution Laws” (Address to the Canadian Learned Societies Conference, Universit6 de
Montreal, 31 May 1985) [unpublished].

2See R. Hamowy, “Medicine and the Crimination of Sin: ‘Self-Abuse’ in 19th Century Amer-
ica” (1977) 1 J. Libertarian Stud. 229. See also M. Rumack, “Prostitution: A Penal or a Medical
Problem” (1972) 20 Chitty’s L.J. 49 at 52ff., who claims that prostitution is a socio-medical
problem and who endorses the suggestion that it is amenable to treatment by psychotherapy,
especially if caught when first manifested in the juvenile in the form of promiscuity.

3See J. Cloyd, Drugs and Information Control (Westport, Conn.: Greenwood Press, 1982) at
56-57: “The latter part of the nineteenth century reflected an attempt by the dominant social
institutions [in the U.S.] to reestablish a system of racial isolation … . Antidrug legislation
was just an aspect of this process.” The work of Lucy Gaston, founder of the Anti-Cigarette
League, provides a good example of the social climate of that period. See L. Wallack, “Mass
Media and Drinking, Smoking, and Drug-taking” (1980) 9 Contemp. Drug Probs 49 at 57-58.
The propaganda of that period has been successful and durable. J. Zentner, “Heroin: Devil
Drug or Useful Medicine?” (1979) 9 J. Drug Issues 333 at 333, notes that over the past century
heroin “has been slandered to such an extent that today for most persons it is synonymous
with evil.” See also P. Lauderdale & J. Inverarity, “Regulation of Opiates” (1984) 14 J. Drug
Issues 567.

4See T. Szasz, Ceremonial Chemistry: The Ritual Persecution of Drugs, Addicts, and Pushers

(New York: Anchor Press/Doubleday, 1974) at 4-27 and 190ff.

5E.M. Brecher & the Editors of Consumer Reports, Licit and Illicit Drugs (Boston: Little,
Brown, 1972) at 231. Massachusetts outlawed tobacco use in 1629. In this century, New Hamp-
shire prohibited the sale of cigarettes in 1901, while in 1907 Illinois established a $100 or 30
days in jail penalty for the same offence. R.C. Schroeder, The Politics of Drugs, 2d ed. (Wash-
ington: Congressional Quarterly Press, 1980) at 103. See also H. Diehl, Tobacco and Your
Health (New York: McGraw-Hill, 1969).

1986]

PSYCHOACTIVE DRUGS

legislation was founded on class prejudice, medical self-interest, cultural
chauvinism, racist bigotry and political scapegoating.6

This paper is concerned with the regulation of psychoactive or psy-
chotropic drugs. Familiar psychoactives include caffeine, cocaine, alcohol,
nicotine, morphine, heroin, mescaline and diazepam (Valium). Psychoactive
substances alter mood by affecting the user’s central nervous system, and
may act as sleep aids, tranquillizers or stimulants. 7 These drugs are presently
segregated into a number of complex, overlapping legal categories. However,
according to the scientific evidence detailed below, psychoactives belong to
a single, cohesive class and, despite important points of diversity, share the
same basic characteristics. That is to say, every psychoactive tends to be
habit forming, health impairing and capable of being used recreationally or
medicinally as a symptom reliever.8

Fairness requires that if all psychoactives are essentially equivalent,
they should be assigned to a single regulatory system. There are five possible
systems to choose from: criminal law prohibition, medical prescription,
rationing, tax-licensing and the free market. In deciding which of these
systems would be preferable as a universal plan, I will speculate on which
restraints on their own drug use individuals would accept in order to protect
themselves from either the drug use of others or the effects of their own
drug consumption. Once the drug control question is framed so as to take
fairness seriously, reliance on either criminal law or medical controls will
be shown to be untenable.

Since selective prohibition and prescription policies now dominate drug
regulation, a justice-based reform argument faces two major challenges: the

6For a recent review of the literature, see N. Boyd, “The Origins of Canadian Narcotics
Legislation: The Process of Criminalization in Historical Context” (1984) 8 Dalhousie L.J.
102; R.J. Bonnie & C.H. Whitebread, “The Forbidden Fruit and the Tree of Knowledge: An
Inquiry into the Legal History of American Marijuana Prohibition” (1970) 56 Va L. Rev. 971.
7E. Goode, Drugs in American Society, 2d ed. (New York: Alfred A. Knopf, 1984) at 17,
defines psychoactive substances as those that “have a direct and significant impact on the
processes of the mind, that influence emotion, thinking, perception, feeling …. ”

8The evidentiary basis for this claim is set out, infra, notes 37-95 and accompanying text.
Claiming that every psychoactive exhibits these same basic characteristics is not the same as
claiming that every drug is identical or equal in effect. For example, after detailing the add-
ictiveness of coffee and the health impairment it causes, J. Kaplan, “The Role of the Law in
Drug Control” [1971] Duke L.J. 1065 at 1084, observes that “[d]ifferences of degree and kind
are, however, important and a legal system which made no distinction between heroin and
coffee would leave a great deal to be desired.” Yet Kaplan then admits that if more were known,
“it could be said that it is not that some drugs are more dangerous than others, but rather that
certain drugs are more dangerous to specific types of people.”

McGILL LAW JOURNAL

[Vol. 31

decriminalization of illicit psychoactives and the demedicalization of pre-
scription psychoactives. Legal scholars have focused on the issue of decri-
minalization, but many decriminalizers only go so far as to advocate the
conversion of illicit drugs into quasi-medical substances and the transfor-
mation of criminal users into “patients”. 9 This compromise policy merely
shifts drugs and drug users from the control of one inappropriate system
to another. It is ill-conceived because drug use is not directly a medical
concern. To pretend otherwise is to disguise a legal, ethical and political
problem as a purely technical matter best left to the medical profession. 10
This does not imply that technical pharmacological data should be ignored,
merely that interpretations of such data should not be accepted on faith
alone. For example, it is often assumed uncritically that all new psychoac-
tives should be marketed as “medicines” rather than as competitors to
alcohol and tobacco.” It is also assumed that legal classifications reflect
major and valid differences between the drugs classified.’ 2

Richard Blum predicts that legal academics in the drug field will assign
the fewest drugs to extreme controls and rely least on criminal law sanc-
tions.13 This article bears out Blum’s forecast in so far as no drugs are
assigned to criminal law or extremist controls. I recommend instead a public
law system employing tax disincentives designed to duplicate many of the
features of a collective tort action against those responsible for generating
drug-related damages. Mild but universal sanctions applied to all drug use

9See, e.g., R.J. Bonnie, “Decriminalizing the Marijuana User A Drafter’s Guide” (1977) 11
U. Mich. J.L. Ref. 3; M.G. Kurzman & H. Magell, “Decriminalizing Possession of All Con-
trolled Substances: An Alternative Whose Time Has Come” (1977) 6 Contemp. Drug Probs
245; T.J. Stachnik, “The Case Against Criminal Penalties for Illicit Drug Use” (1972) 27 Am.
Psychol. 637. For a criticism of the treatment of drug-dependent possessors of opiates as
“patients”, see the dissenting conclusions of Commission member M.-A. Bertrand in Canada,
FinalReport ofthe Commission of Inquiry into the Non-Medical Use ofDrugs (Ottawa: Queen’s
Printer, 14 December 1973) at 245-46 (Chair. G. Le Dain).

‘0See T. Szasz, “The Ethics of Addiction” in C.C. Brown & C. Savage, eds, The DrugAbuse

Controversy (Baltimore: National Educational Consultants, 1971) 39 at 47.

“See, e.g., D. Bovet, “Medical Science and Drug Classification” in R.H. Blum et al., Con-
trolling Drugs (San Francisco: Jossey-Bass, 1974) 85 at 110. Similarly D.A. Kay, The Inter-
national Regulation of Pharmaceutical Drugs (St Paul, Minn.: West, 1976) at 6, announces
without comment that regulatory authorities are concerned with ensuring, inter alia, that “[n]ew
drugs are evaluated for safety and efficacy for their intended therapeutic use.” Kay simply
assumes that all new drugs must be “therapeutic” if they are to reach the market. H.F. Dowling,
Medicines for Man: The Development, Regulation, and Use of Prescription Drugs (New York:
Alfred A. Knopf, 1970) at 4, in the same vein, defines “prescription drugs” as “‘[n]ew drugs,
those used for serious illnesses or those having considerable potency for harm if misused.”
[emphasis added]
t2See, e.g., the material quoted in R.H. Blum, “Interest Groups” in Blum et al., ibid., 62 at

62ff.

13Blum, ibid. at 69.

1986]

PSYCHOACTIVE DRUGS

will better protect society than extreme penalties applied rarely, haphazardly
and unfairly against minority drug use.

I. The Legal and Scientific Classification of Drugs

A. Divergent Legal Classifications

The industrial nations classify drugs in similar ways, modelled pri-
marily on the American example.’ 4 The central division is between medical
and non-medical psychoactives. Non-medical or secular drugs are freely
available, like caffeine, or are prohibited to minors and subject to a variety
of tax-licensing measures, as is the case with alcohol and tobacco. Use of
these three psychoactives constitutes most of the consumption of mood
altering substances.15 The less important drugs, in terms of per capita usage,
are classified as medicines. The pertinent federal legislation in Canada is
found in the Food and Drugs Act,16 the Narcotic Control Act, 17 the Tobacco
Restraint Act,’8 and the Proprietary or Patent Medicine Act,’ 9 and at the
provincial level, in statutes like Ontario’s Liquor Control Act.20

Medical drugs fall into a confusing array of legal cubbyholes. Some
psychoactives are found among the over-the-counter (OTC) preparations

‘4See W.M. Wardell, ed., Controlling the Use of Therapeutic Drugs: An International Com-
parison (Washington: American Enterprise Institute for Public Policy Research, 1978); J. Ka-
plan, “Classification for Legal Control” in Blum et al., supra, note 11, 284 at 284-90. The U.S.
fumbled into a leading role in the drug-abuse crusade partly as a result of its first colonial
efforts in the Philippines in the early 1900s. Governor W.H. Taft commissioned a study on
how to deal with the “opium problem” inherited from the Spanish. Unfortunately, American
missionaries ignored the moderate recommendations made by Taft’s Commission and de-
manded complete prohibition. The resulting black market led, in 1912, to the Hague Opium
Convention which was forced into adoption solely by the U.S. See R. King, “‘The American
System’: Legal Sanctions to Repress Drug Abuse” in J.A. Inciardi & C.D. Chambers, eds, Drugs
and the Criminal Justice System (Beverly Hills: Sage, 1974) 17 at 20.

‘sThe proportions of young American adults regularly using the popular psychoactives are:
caffeine (91 per cent), alcohol (75 per cent), marijuana (39 per cent), tobacco (21 per cent),
analgesics (41 per cent), and prescribed (17 per cent). For tobacco and caffeine “regular use”
is likely to mean daily maintenance dosage. See A.M. Vener, L.R. Krupka & J.J. Climo, “Drugs
(Prescription, Over-the-Counter, Social) and the Young Adult: Use and Attitudes” (1982) 17
Int’l J. Addictions 399. In terms of negative impact, H. Teff, Drugs, Society and the Law
(Westmead, Eng.: Saxon House, 1975) at 147, estimates that alcohol or barbiturates cause
premature death at thirty times the rate of heroin, and tobacco at a thousand times the rate
of heroin.
16R.S.C. 1970, c. F-27. For a general discussion of the relevant legislation see E.M. Sellers
‘1 R.S.C. 1970, c. N-i.
18R.S.C. 1970, c. T-9.
19R.S.C. 1970, c. P-25.
20R.S.O. 1980, c. 243.

& S. Sellers, “Canada” in Wardell, supra, note 14, 71 at 78-84.

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[Vol. 31

and may be purchased without physician approval. 21 Many other psychoac-
tives fall under the general medical heading as available by prescription
only.22 In addition, there exist special status substances. So-called “narcot-
ics”, including morphine and cannabis, and “controlled drugs” like metha-
qualone, may be prescribed but under onerous conditions. 23 Amphetamine
and other “designated drugs” can be prescribed but only for certain con-
ditions such as narcolepsy. Methadone, the sanctioned heroin substitute, is
in a class by itself since its prescription requires approval from the Minister
of Health and Welfare. 24 “Restricted drugs” such as psilocybin and LSD are
available only to persons authorized by regulation. 25 Thalidomide and cer-
tain combination products cannot be prescribed under any conditions. 26
Possession and use of medical psychoactives outside approved channels
normally carries the risk of minor-to-severe criminal law penalties and, in
the case of physicians, the possible loss of their licences to practise.27

21Since 1976, OTC drugs have been subject to certain general standards set out in the Food
and Drugs Act, supra, note 16, ss 3 and 8-11, as am. S.C. 1976-77, c. 28, s. 16(1) and S.C. 1981,
c. 47, s. 19. Such standards involve conditions of manufacture, labelling, advertising and sale.
OTC drugs are also governed by the Proprietary or Patent Medicine Act, supra, note 19. For
a discussion of the effectiveness of current standards see J. Hollobon & D. Lipovenko, “Many
Drugs Haven’t Passed Modem Tests” The[Toronto] Globe andMail (18 October 1982) 5. OTC
psychoactives, including analgesics, antihistamines, sedatives and “diet” pills, are widely used.
See Vener, Krupka & Climo, supra, note 15 at 402. Aspirin, the most common OTC product,
is used primarily as an analgesic or antipyretic but for some people “it even works as a mild
sedative”: Consumer Reports, eds, The Medicine Show (New York: Pantheon Books, 1974) at
13.22Prescription-only psychoactives are listed in Schedule F of the Food and Drug Regulations,
C.R.C. 1978, c. 870, C.01.041. Provincial pharmacy acts may also set out a schedule of pre-
scription drugs, a list that can add to, but not subtract from, the federal list. Sellers & Sellers,
supra, note 16 at 72. See, e.g., Health Disciplines Act, R.S.O. 1980, c. 196, s. 145ff. and the
schedules appended to R.R.O. 1980, Reg. 451.
23″Narcotics” are listed in the Schedule to the Narcotic Control Act, supra, note 17. “Con-
trolled drugs” such as barbiturates are listed in Schedule G to the Food and Drugs Act, supra,
note 16. See also s. 33ff. of that Act. These drugs may be prescribed by a physician under the
respective regulations. See Narcotic ControlRegulations, C.R.C. 1978, c. 1041, s. 53 and Food
and Drug Regulations, ibid., G.04.001.
24Food and Drug Regulations, ibid., G.04.001(4)(a)(i). “Designated drugs” are a subset of
the “controlled drugs”. The conditions governing the prescription of methadone may be found
in the Narcotic Control Regulations, ibid., ss 53(3) and 68(1).
25See Food and Drugs Act, supra, note 16, ss 41, 45 and Schedule H and Food and Drug

Regulations, ibid., J.01.002.

26Food and Drugs Act, ibid., s. 15 and Schedule E See Sellers & Sellers, supra, note 16 at
82.27See Food and Drugs Act, ibid., s. 26; Narcotic Control Act, supra, note 17, ss 3-6. For a
discussion of the effects of these penalties on marijuana users, see P.G. Erickson, Cannabis
Criminals: The Social Effects of Punishment on Drug Users (Toronto: Addiction Research
Foundation, 1980) at 2. In the U.S., similar distinctions among drugs are established under
the Comprehensive DrugAbuse Prevention and ControlAct of1970, 21 U.S.C. 801, Schedule
I drugs like heroin cannot be prescribed but Schedule II drugs like morphine and methadone

1986]

PSYCHOACTIVE DRUGS

Critics charge that drug classification laws were not well reasoned, well
founded or widely discussed before their enactment. 28 The central incon-
sistency in every legal classification scheme is the cross-category appearance
of different members of the same drug group. Sedative-hypnotics like al-
cohol, diazepam and the barbiturates occupy three quite distinct legal cat-
egories. The same is true for stimulants such as caffeine, theobromine,
amphetamine and cocaine. 29 On the proper legal classification of cannabis
in particular, the Le Dain Commission reported that:

Cannabis has … characteristics in common with a wide variety of drugs in-
cluding alcohol, LSD and mescaline, nitrous oxide, amphetamines, atropine,
opiate narcotics, barbiturates and the minor and major tranquilizers…. [C]annabis
has been shown to have stimulant, sedative, analgesic and psychedelic effects.30

Since cannabis resembles drugs which belong to different legal categories,
there is no compelling rational reason to classify it one way or another.
Given this open-ended discretion, lawmakers have always been free to clas-
sify cannabis as they please. 31

Pharmaceutical categorizations do not solve the inconsistency in legal
classifications. Most pharmaceutical research is commercial, specific and

can be prescribed under restrictive conditions. Harsh penalties are also the norm in the U.S.
Four states provide death sentences for selling “narcotics” to minors. Penalties for illicit drug
possession vary widely between states from fines and conditional discharges to life impris-
onment. See H.R. Levine, Legal Dimensions of Drug Abuse in the United States (Springfield,
Ill.: Charles C. Thomas, 1974) at 7-8. As for the impact on physicians, Szasz, supra, note 4 at
150, reports that following passage of the Harrison Act in 1914, 25,000 physicians were charged
with selling narcotics, 3,000 served prison terms and thousands had their licences revoked.
28See, e.g., H.R. Levine, unpublished paper (1971) quoted in Blum, supra, note 12 at 64-65;
H. Kalant & 0. Kalant, Drugs, Society and Personal Choice (Toronto: University of Toronto
Press, 1971) at 116. Brecher & the Editors of Consumer Reports, supra, note 5 at 522-25, also
criticize the “unscientific” basis of legal drug classifications built upon “political compromise”.
They recommend, supra at 266, a more unified classification scheme for all potentially abusive
or abusable drugs, and conclude that “a sound policy for any of these drugs … will almost
certainly be a consistent policy for all of them.”
29C.B. Schultz, “Statutory Classification of Cocaine as a Narcotic: An Illogical Anachronism”
30Canada, Report of the Commission ofInquiry into the Non-Medical Use ofDrugs:Marijuana

(1983) 9 Am. J.L. & Med. 225.

(Ottawa: Information Canada, 1972) at 16 (Chair. G. Le Dain).

31In thirteen states marijuana is a narcotic but in thirty-seven it is a hallucinogen. In three
states LSD is also a narcotic. The legal penalties for unauthorized use of these two drug
categories often varies drastically. Numerous countries inflict the death penalty or long prison
terms for “narcotic offences”. See R. Smart, Forbidden Highs (Toronto: Addiction Research
Foundation, 1983) at 224. But as Levine, supra, note 27 at 5-6 and 11, correctly argues, the
“purpose of classifying drugs should be to impose penalties proportionate to the inherent
dangers of the controlled substances.”

McGILL LAW JOURNAL

[Vol. 31

designed to meet regulatory requirements. Firms test new chemicals in nar-
row circumstances with a view toward particular uses. 32 Specificity of drug
action is desired in medical practice and specificity is promoted even when
the drug in question has numerous other uses and effects. 33 As a new chem-
ical, THC, the active ingredient in cannabis sativa, would probably be tested,
approved and marketed strictly for treatment of glaucoma or as an anti-
nausea agent for cancer chemotherapy cases. 34 A cannabis based drug, mar-
keted under a brand name such as “Cervil” or “Canab”, could be prescribed
and ingested with neither physician nor patient suspecting that the medicine
was connected with an illicit substance of ill-repute. 35

The dozens of apparently precise pharmaceutical categories falsely im-
ply that psychoactives have only specific effects and constitute specialized
weapons in the arsenal of the well-equipped physician. 36 Specificity is of
value in medicine and medical classification schemes are narrow, exclu-
sionary and misleading for legal purposes. A legal classification scheme
requires instead the broadest coverage possible. Laws must take account
not only of what a drug now happens to be used for but also of what it
could be used for. It would be foolish to approve cannabis for glaucoma
treatment or alcohol as a sedative while ignoring the euphoriant and rec-
reational potential of these drugs.

32William N. Hubbard Jr, Executive Vice-President of the Upjohn Company, explains that
pharmaceutical producers want “to market only major breakthroughs that represent unique
contributions to therapy.” Specific use is also a factor in gaining patent protection for new
substances. See W.N. Hubbard Jr, “Preclinical Problems of New Drug Development” in R.L.
Landau, ed., Regulating New Drugs (Chicago: University of Chicago Center for Policy Study,
1973) 36 at 50. See also E.W. Kitch, “The Patent System and the New Drug Application: An
Evaluation of the Incentives for Private Investment in New Drug Research and Marketing”
in Landau, supra, 82 at 85.
33Chlorpromazine, for example, was first hailed as an antihistamine and then subsequently
used in the symptomatic treatment of schizophrenia. G. Claridge, Drugs and Human Behavior
(New York: Praeger, 1970) at 19, admits that “hayfever remedies” often produce drowsiness
and lethargy, typical signs of sedation, but then claims that these antihistamines “would not
be considered psychotropic in the accepted sense”. By “accepted sense” Claridge means the
accepted use in psychiatry. Thus, in his view, alcohol would also fall in a different category
from the “standard sedatives”, merely because psychiatrists do not prescribe alcohol.

34One psychiatrist claims that modem drugs are “better tailored” and specifically produced
to “make sick people well and not to push normal people toward chemical pathology.” The
same author promotes THC for glaucoma and other therapeutic uses. S. Rosenblatt & R.
Dodson, Beyond Valium: The Brave New World ofPsychochemistry (New York: Putnam, 1981)
at 234.
35See ibid. at 235 where it is recommended that THC be administered in pill or capsule form
to distance the drug from marijuana and to avoid the more pronounced euphoric effect of
smoking cannabis.

36See, e.g., Claridge, supra, note 33 at 19-21.

1986]

PSYCHOACTIVE DRUGS

B. Convergent Scientific Classification

Researchers employing a classification scheme based on drug effects
commonly identify five classes of psychoactives: sedative-hypnotic-depres-
sants, stimulant-convulsants, narcotic-analgesics, antipsychotics and hal-
lucinogens. 37 These categories are not strict. A given drug, depending on
dosage and the user’s experience and expectations, may trigger effects in a
number of categories. 38 Psychoactives apparently share certain fundamental
characteristics with regard to their mechanisms of action, multi-purpose
use, health impairment and habit formation.

1. Mechanisms of Action

Psychoactive drugs do not provide nutrients or necessary trace ele-
ments; nor do they heal, repair or permanently improve the functioning of
human tissue. (Alcohol is unique in that it is caloric; by one estimate alcohol
provides 8 per cent of the average American adult’s caloric intake.39) Psy-
choactives trigger effects by directly disrupting human biochemistry so that
various systems, particularly those of the brain, are dampened, repressed
or “short-circuited”. 40 Drugs work, according to Julius Rice, “by interfering
with the fundamental functioning of the brain cells [which] may irreparably
damage brain-system operations.1 41

Despite extensive investigation and sophisticated knowledge and tech-
niques, the precise and complete mechanisms involved in any psychoac-
tive’s action are not known or understood.42 Pharmacology is almost entirely

37R.M. Julien, A Primer of Drug Action, 3d ed. (San Francisco: Freeman, 1981) c. 2.
38J. Fort, “The Marijuana Abuser and the Abuser of Psychedelic-Hallucinogens” in J.G. Cull
& R.E. Hardy, eds, Types ofDrugAbusers and TheirAbuses (Springfield, Ill.: Charles C. Thomas,
1974) 134 at 134-35, advises that the “common pharmacological categories which are widely
used in talking about these drugs are only of limited benbfit . . .”. He concludes that the best
way of referring to a given drug is by its name rather than by its designated category. See also
the discussion on drug classification in R.S. De Ropp, Drugs and the Mind (New York: De-
lacourte Press, 1976) at”6-7.

American Psychiatric Press, 1985) at 45.

39R.L. DuPont Jr, Getting Tough on Gateway Drugs: A Guide for the Family (Washington:
40″Stimulation, or tranquilization, by drugs, electricity or hormones, can be so effective,
initially, because organic restrictive mechanisms can be easily interrupted.” Caffeine, for ex-
ample, stimulates brain action by blocking the effect of adenosine, an organic depressant. D.G.
Garan, Against Ourselves: Disorders from Improvements under the Organic Limitedness ofMan
(New York: Philosophical Library, 1979) at 58.

41J. Rice, Ups and Downs: Drugging and Doping (New York: Macmillan, 1972) at 6.
42Ibid. at 7. Others agree that despite continual investigation “it is still not clear exactly what
[psychoactive drugs] do to behavior nor how they do it.” See E.R. Gritz & M.E. Jarvick,
“Psychoactive Drugs and Social Behavior” in I-R. Hammond & C.R.B. Joyce, eds, Psychoac-
tive Drugs and Social Judgment: Theory and Research (New York: Wiley, 1975) 7 at 8. The
Le Dain Commission also understood that “[t]he details of cellular physiology are largely

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descriptive and applied; there is little theoretical content. 43 Active sub-
stances are discovered by trial and error, by accident or by close extrapo-
lation from known chemical structures.44

2. Multi-purpose Effects

Any psychoactive drug can be used, with varying degrees of success, as
a symptom reliever, a social facilitator, an intoxicant or a substance with
ceremonial significance. 45 Most drug classifications contradict the flexible
nature of psychoactives because the drugs are labelled according to their
current pattern of usage.4 6 Drug “abuse” is generally subjectively defined
as excessive use unrelated to acceptable medical practice or simply as any
non-medical use.4 7 Medical or orthodox use is not an acceptable legal stan-
dard because medical orthodoxy is affected by professional self-interest and
by prevailing attitudes. The difference between medical and non-medical
psychoactives is, in the words of Thomas Szasz, the difference between holy
water and water.4 8 John Marks, Jock Young and a number of others now

unknown and with rare exceptions there is little information as to the mechanism by which
any particular drug changes the activity of the nerVous system.” Canada, Interim Report of the
Commission of Inquiry into the Non-Medical Use ofDrugs (Ottawa: Queen’s Printer, 6 April
1970) at 20 (Chair G. Le Dain).
43Pharmacologists do theorize about drug action mechanisms, neurotransmitters and the
like, but fundamental theoretical work is conspicuous in its absence. Compare the generality
of Garan’s psychological hypothesis, supra, note 40, with the standard and more trivial work
by Claridge, supra, note 33.

44B. Barber, Drugs and Society (New York: Russell Sage Foundation, 1967) at 9-10.
43A. Weil, The Natural Mind (Boston: Houghton Mifflin, 1972) c. 2.
46Goode, supra, note 7 at 5, notes that “[t]he social context of [drug] use influences or
determines at least four central aspects of the drug reality, aspects that traditionally have been
presumed to grow directly out of the chemical and pharmacological properties of the drugs
themselves. These four aspects are drug definitions, drug effects, drug-related behavior, and the
drug experience.” As Teff, supra, note 15 at 6, argues, “the law tends to reflect prevailing social
attitudes [thus] it is hardly surprising that it has endorsed some of the commonplace fallacies.”
47Biased definitions of “drug abuse” are self-serving rationales in defence of the status quo.
Non-biased definitions are available but they entail radical implications. Julien, supra, note
37 at 209, defines drug abuse as “use of any drug for a medical or recreational purpose when
other alternatives are … warranted or where drug use endangers either the users or those
around them.” By this measure, almost all drug use is “abuse”. R.E. Carney, “The Abuser of
Tobacco” in Cull & Hardy, supra, note 38, 160 at 162, defines drug abuse to mean “using
drugs solely to modify feeling states or in such a manner so as to endanger health.” Carney
admits that by this standard all tobacco use is abuse. Similarly, Fort, supra, note 38 at 136,
defines abuse as “excessive” use of a drug that “impairs health or social or job functioning”.
Like other “radicals”, Fort deplores the focus on illicit drugs and the denial of the far greater
problem posed by the abuse of licit drugs. Finally, J. Rublowsky, The StonedAge – A History
of Drugs in America (New York: Putnam, 1974) at 21, notes that “alcohol abuse is hardly
deviant behaviour –

it is practically the norm!”

48Szasz, supra, note 4 at 17.

1986]

PSYCHOACTIVE DRUGS

admit that no basic differences exist between prescription drugs, socially
accepted drugs and illicit drugs.49

Psychoactives are medical or recreational depending on the motives,
attitudes and biases of users, sellers and controllers. The variable employ-
ment of sedative-hypnotics illustrates the point. Robert Julien explains that
these drugs are “all virtually identical pharmacologically”, that meproba-
mate induces the same basic effects as the barbiturates and that alcohol
differs from the rest only in that it is used primarily in a social and recre-
ational, rather than a medical, context.50 Alcohol is as medical as its pre-
scribed cousins and has been lauded throughout history as good treatment
for practically all diseases and discomforts. 5′ Alcohol is also used in certain
cultures, including our own, as a source of mystical inspiration.52 During
Prohibition, alcohol was permitted in Christian rituals just as the otherwise
forbidden peyote or mescaline is now permitted to the Native American
Church.53 Alcohol is no longer avidly promoted as a medicine despite con-
tinued reports of therapeutic value partly because medical interests no longer
enjoy an exclusive franchise to sell the drug.

The primary differences in the effects of the sedative-hypnotics result
from the doses. With increasing dosage, effects range from anxiety relief

49J. Marks, The Benzodiazepines: Use, Overuse, Misuse, Abuse (Baltimore: University Park
Press, 1978) at 69 and 73. See also J. Young, The Drugtakers (London: MacGibbon & Kee,
1971) at 9-10; S.M. Greenberg, “Compounding a Felony: Drug Abuse and the American Legal
System” in Inciardi & Chambers, supra, note 14, 183; Kurzman & Magell, supra, note 9; R.
Whitaker, Drugs and the Law: The Canadian Scene (Toronto: Methuen, 1969) at 3-5.

50Julien, supra, note 37 at 214. In addition, Julien, supra at 217, describes tranquillizers as
“a martini in a pill”. Nitrous oxide was isolated in 1772 and recommended for surgery but
instead it and ether were used recreationally for amusement until 1846 when surgeons claimed
them as anaesthetics. M. Crichton, Five Patients: The Hospital Explained (New York: Alfred
A. Knopf, 1970) at 87-88.

5Alcohol was the most prescribed drug in nineteenth-century psychiatric institutes. See S.
Williams, “The Use of Beverage Alcohol as Medicine, 1790-1860” (1980) 41 J. Stud. Alcohol
543. See also S. Lucia, A History of Wine as Therapy (Philadelphia: J.B. Lippincott, 1963);
C.D. Leake & M. Silverman, Alcoholic Beverages in Clinical Medicine (Chicago: Year Book
Medical, 1966). Alcohol’s continued therapeutic value is praised by J. Kaplan, “Classification
for Legal Control” in Blum et al., supra, note 11, 284 at 293, who observes that “it is likely
that many people cope successfully with serious mental problems by relaxing and reducing
anxiety with one or other of these drugs [alcohol and marijuana].”

52Dr William Sharpe wrote in 1882 that the “stimulus of alcohol when judiciously controlled,
always leads to higher mental efforts … in which the mind … sweeps intuitively into the
veiled and distant regions of universal truth.” See N. Longmate, The Water Drinkers: A History
of Temperance (London, Ont.: Hamish, Hamilton, 1968) at 178. Rublowsky, supra, note 47 at
58, reports that historically the “euphoria that accompanied the drinking of spirits was asso-
ciated, at first, with the divine and was looked on as a blessing from God Himself…

53See Kaplan, supra, note 51 at 289; Goode, supra, note 7 at 3.

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through disinhibition, sedation, sleep, general anaesthesia, coma and death.54
At low dosage levels circumstantial factors, including the placebo effect, 55
may be more important variables than the specific drug ingested. In spite
of this generality of effect, new sedatives are not marketed as alcohol sub-
stitutes but as “medicines”. Alcohol producers enjoy a legally created mo-
nopoly in the licit recreational sedative market. Potential competitors must
characterize their work as “medical” because if a new drug were advertised
as a recreational intoxicating substance of no more therapeutic worth than
alcohol, its use would be prohibited. To win sales, every new sedative must
be touted as a medicine. For example, barbiturates and benzodiazepines,
the most popular and alcohol-like of the new drugs, were first marketed as
“medical” notwithstanding that these drugs were sometimes known on the
street as “solid booze”. All eight benzodiazepines now available have similar
impact, though flurazepam is sold as a sleeping pill whereas Valium and
Librium are prescribed as daytime tranquillizers.5 6

Tranquillizers are also found among the other drug groups. P. Rosenberg
predicts that if heroin, usually classified as a narcotic, were legal it .might
be “the tranquillizing drug of choice”. 57 The opiates, before Valium and the
Harrison Act or the Narcotic Control Act, were indeed the tranquillizer of
choice for the same largely female, middle to upper class group that now
takes the benzodiazepines. 58 Opiates boast a long history of medical use as
sedatives and pain killers as well as for the relief of diarrhea and coughs.5 9

54The potency of drugs also varies so that very small quantities of some drugs, like nicotine
or ISD, have considerable impact. In practice, however, drugs are processed and packaged and
used in ways that tend to nullify variations in potency. Packaging strong drugs in weak form,
for example, beer as compared to pure distilled alcohol, does not prevent excessive use; it
merely prevents inadvertent excessive use by adults- Since people take sedative-hypnotics
purposefully to achieve certain effects it is largely irrelevant whether 50 milligrams of drug X
are required to match the effect of 10 milligrams of drug Y.

55The placebo effect is common and, although psychological, the effect is based on self-
induced bio-chemical responses. Such responses are perfectly drug-like in effect and after-effect.
As Claridge, supra, note 36 at 26, explains, the placebo aftermath “can be as frequent and as
unpleasant as in the case of pharmacologically active drugs.” See also S. Bok, “The Ethics of
Giving Placebos” Scientific American (November 1974) 17 at 17 and 22.

56E. Bargmann et al., Stopping Valium, Ativan, Centrax, Dalmane, Librium, Paxipan, Res-
toril, Serax, Tranxene and Xanax (Washington: Public Citizen, 1982). Flurazepam is marketed
by Roche Laboratories as Dalmane.

57P. Rosenberg, “The Abusers of Stimulants and Depressants” in Cull & Hardy, supra, note

38, 123 at 129.

58″During the nineteenth century the dominant [opiate] addict type was a middle-aged,
middle-class or upper-class female and the majority of cases were medical in origin.” D.T.
Courtwright, Dark Paradise: Opiate Addiction in America Before 1940 (Cambridge, Mass.:
Harvard University Press, 1982) at 113.
59Rublowsky, supra, note 47 at 118-21.

1986]

PSYCHOACTIVE DRUGS

The opiates, which should be included as a sub-branch of the sedative-
hypnotics, also produce euphoric effects. 60 Thus, like every other psychoac-
tive, opiates may attract widespread use.

Equivalence is also found among the stimulants. Nicotine effects are
quite similar to those triggered by amphetamine, cocaine, pemoline, phen-
metazine and methylphenidate. 61 All the stimulants trigger euphoric and
symptom relieving effects though the euphoric potential of some, like to-
bacco, appears to be quite low. 62 At similar dosage levels the stimulants are
fairly interchangeable. Cocaine use, for example, diminished in the 1930s
simply because the new amphetamines cost much less and provided a longer
lasting stimulus. 63 New stimulants are promoted as medicines though there
is scant evidence that they are safer or more medicinal than cocaine. 64

The hallucinogens present a similarly broad picture. Contrary to pop-
ular opinion, hallucinogens such as LSD or mescaline are not unique. Ac-
cording to some experts, hallucinogens can be characterized as a sub-branch
of the stimulants. 65 Indeed, given proper dosage and circumstances any
psychoactive “can sometimes produce hallucinations or delusions”. 66

3. Health Impairment

All psychoactives induce some range of symptomatic relief. Such relief
is readily obtained; one merely requires a chemical capable of disrupting
organic systems so that the biochemical processes producing anxiety, for
instance, no longer function properly. Symptomatic relief is useful, espe-
cially in short run, emergency situations. However, drug benefits are gained
at a certain price, part of which is damage to health, long term functional
impairment and genetic interference. 67

6See Julien, supra, note 37 at 100.
61Carney, supra, note 47 at 166.
62Rosenberg, supra, note 57 at 125, reports that many patients “overlook the basic euphoria
and sense of powerfulness that goes along with amphetamine use, believing instead that they
are taking the amphetamines for weight reduction, or because the doctor prescribed it.”

63Julien, supra, note 37 at 87.
64In “therapeutic” contexts, it is difficult to know when one is taking amphetamines or other
stimulants because they are variously labelled as anorexics, analeptics (invigorants), local an-
aesthetics, antidepressants and so on. See Rice, supra, note 41 at 3.

65Ibid. at 3.
66Fort, supra, note 38 at 135.
67See, e.g., R. Hughes & R. Brewin, The Tranquilizing of America (New York: Harcourt
Brace Jovanovich, 1979) c. 2 and c. 4. It is interesting to note that the majority of people
brought to hospital for detoxification are using “medical”, rather than illicit, drugs. See M.
Silverman & P.R. Lee, Pills, Profits and Politics (Berkeley: University of California Press, 1974)
at 273.

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Every psychoactive, including caffeine, nicotine and alcohol, is a “ter-
atogen”, i.e. a substance that is capable of producing birth defects. Tha-
lidomide, a sedative once advertised as being “completely safe” for pregnant
women, is a severe example of a general characteristic of the class. 68 In
Rice’s opinion, if thalidomide had merely caused a common birth defect,
like harelip, instead of the uncommon, specific defects it did cause, it would
probably still be on the market. 69 Fortunately, prospective parents are in-
creasingly aware of the potential for drug-related birth defects. 70

The extent of drug-related damage to users’ health depends upon many
factors including dosage, duration of use, condition of the user and so forth.
Heavy daily intake of caffeine may be more damaging than moderate pe-
riodic use of alcohol. 71 Intravenous use under unsanitary conditions of an
adulterated substance can turn even morphine or aspirin into serious perils.
Similarly, nicotine pills do less damage than nicotine derived from tobacco
smoke.72 Not surprisingly, most drug-related health impairment is attrib-
utable to popular, widely-used drugs. 73 Ill effects owing to use of illicit and
medical psychoactives are relatively minor when one looks at the drug-
consuming public as a whole because use of these drugs is minor. For every
cocaine user in the United States there are 100 alcohol users. In Britain,
about 75 per cent of adults use alcohol, 50 per cent use nicotine and only
15 to 20 per cent receive psychoactives medically. 74

Appreciating the health impact of psychoactives is impeded by biases
which distort the nature of drugs according to their legal and social status. 75
68See H. Teff& C. Munro, Thalidomide: TheLegalAftermath (Westmead, Eng.: Saxon House,
1976) at 2; M. Mintz, The Therapeutic Nightmare (Boston: Houghton Mifflin, 1965) at 261.
69Rice, supra, note 41 at 36.
70Many popular works now warn parents, especially pregnant women, to refrain from drug
use. See, e.g., R.S. Mendelsohn, Confessions of a Medical Heretic (Chicago: Contemporary
Books, 1979).

71See Kaplan, supra, note 8 at 1083.
72This does not suggest that smokeless tobacco products are harmless, just that they are less
damaging than smoked products. On the issue of snuff and chewing tobacco hazards see C.
Wallis, “Mouths of Babes” Time (15 July 1975) 54.
73Some researchers have constructed comparative risk profiles for psychoactives. Green, for
example, ranks cannabis after both alcohol and nicotine in terms of impairment potential:
cited in C.N. Mitchell, “A Comparative Analysis of Cannabis Regulation” (1983) 9 Queen’s
L.J. 110 at 115 ^×..

74Marks, supra, note 49 at 52. In the U.S. in 1974, 94 million persons used alcohol, 67 million
used tobacco, 13 million used cannabis and one million each used cocaine and the psychedelics.
In the U.K. during the same period there were 61 deaths connected with heroin, 1,829 with
alcohol and 1,930 with barbiturates. Teff, supra, note 15 at 146-48, concludes from these and
other findings that alcohol is the most dangerous drug.

75See, e.g., J. Helmer, Drugs and Minority Oppression (New York: Seabury Press, 1975) at
4-6, who claims that labour conflict and repression of popular unrest led to the creation of the
heroin mythology whereby “the most effective analgesic … and the best cough mixture …
became the number one outlaw in the land.” See also notes 4, 6, 11, 28, 37, 46, 47 and 84.

1986]

PSYCHOACTIVE DRUGS

As popular recreational and industrial mainstays, the risks of tobacco and
alcohol have been downplayed. 76 On the other hand, the dangerousness of
illicit drugs has been systematically and grossly exaggerated in order to
rationalize the unwarranted criminalization of these substances. Most peo-
ple now harbour the illusion that heroin is an incredibly attractive and
harmful drug, yet authorities claim that heroin use is less damaging than
amphetamine or barbiturate use.77 Similarly, cannabis is apparently less
socially disruptive than alcohol. 78

An equal but opposite distortion occurs with medical psychoactives.
The health impairing capacity of OTC and prescription drugs is seriously
underestimated in order to promote and rationalize their status as approved
medicines. 79 Illicit drugs are harmful and evil until proven benign whereas

76During World War II, tobacco was classified as an “essential crop” in the U.S., and the
draft board gave deferments to farmers of tobacco, wheat and corn. R. Sobel, They Satisfy:
The Cigarette in American Life (New York. Anchor Books/Doubleday, 1978) at 131. See also
Fort, supra, note 38 at 135. Carney, supra, note 47 at 160, marvels that tobacco use is “rarely
considered to be one of our greatest drug problems”, an oversight he considers “amazing”‘
when compared to the hysteria surrounding marijuana.

77L. Grinspoon & P. Hedblom, in their excellent survey of the amphetamine literature, The
Speed Culture: Amphetamine Use and Abuse in America (Cambridge, Mass.: Harvard Uni-
versity Press, 1975) at 67, discuss the “traditional lore about heroin, passed along by ill-informed
rumor, exaggerated literary descriptions, and even medical and pharmacological texts … ”
They argue that heroin withdrawal pains and health impairment have been “vastly overesti-
mated”. In contrast, amphetamines are more dangerous, more violence related, and more
naturally attractive than opiates to people in blind tests. Amphetamines are euphoric, hallu-
cinogenic, teratogenic and associated with “insightfulness and religiosity”. Medically, the early
papers on amphetamines were promotional, not scientific. When critical work became available,
physicians ignored it. Prescribed for decades as the overwhelming drug of choice for weight
loss, it now appears that users often gain back more weight than they initially lose. Grinspoon
& Hedblom, supra at 51, 67, 108, 146, 159 and 179. Rosenberg, supra, note 57 at 128, states
that “[h]eroin is not a harmful drug. It can be taken for years with almost no physically
deleterious effects.” Barbiturate use also causes greater physical harm and personality deteri-
oration than opiate use. A. Malleson, Need Your Doctor Be So Useless? (London: George Allen
& Unwin, 1973) at 60.

78See, e.g., M. Schofield, The Strange Case of Pot (Harmondsworth, Eng.: Penguin Books,

1971).

79Most new psychoactives are launched upon “waves of enthusiasm” from drug companies,
detailmen, research papers and anecdotal medical reports but, as the cynics explain, the rush
is necessary because new drugs must be used quickly “before they stop working”. S. Fredman
& R.E. Burger, Forbidden Cures: How the FDA Suppresses Drugs That Could Save Your Life
(New York: Stein & Sage, 1976) at 174. New drugs are normally marketed with the claim that
they “retain potent hypnotic qualities without acute toxicity and potential for dependence;
then with unhappy experience the latter qualities become apparent.” W.B. Mendelson, The
Use andMisuse of Sleeping Pills: A Clinical Guide (New York: Plenum, 1980) at 39. See also
E. Hartmann, The Sleeping Pill (New Haven: Yale University Press, 1978). Mintz, supra, note
68 at 57-62 and 185, notes the “grotesque exaggerations” of therapeutic potency and the “sen-
sationally favorable” press new drugs received in the 1950s. Nonetheless, some physicians
continue to tout psychoactives as the solution to almost every problem. See Rosenblatt &
Dodson, supra, note 34 at 19.

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medical psychoactives are helpful and benign until proven harmful.80 Since
illicit drugs are in fact harmful the first onus can never be satisfied. However,
the second onus can be and is repeatedly met as previous “wonder drugs”
like heroin, amphetamine and barbiturate are discredited.8’ The difficulty
is that these discredited drugs have been readily replaced by new medical
psychoactives.

4. Habit Formation and Dependency

Every drug capable of “favorably altering mood … or of creating a
pleasurable state of consciousness is capable of inducing psychological de-
pendence.”’82 Every psychoactive can be habit forming, some, like LSD, to
a slight degree and some, like nicotine, to a pronounced degree. 83 Social

80Malleson, supra, note 77 at 39. By 1954, Japan had already implemented controls on
amphetamines whereas a noted professor of pharmacology described these drugs as safe and
useful “in a wide variety of clinical conditions”. See C.D. Leake, The Amphetamines: Their
Actions and Uses (Springfield, Ill.: Charles C. Thomas, 1958) cited in Grinspoon & Hedblom,
supra, note 77 at 221. See also Rice, supra, note 41 at 67. O.J. Kalant, The Amphetamines:
Toxicity and Addiction, 2d ed. (Toronto: University of Toronto Press, 1973) at vii, politely
refers to Leake’s book as “outdated”. Experts now state that amphetamines have “an insig-
nificantly small part to play in the legitimate practice of medicine.” Rice, supra at 68.

8’Valium (diazepam), the most famous new psychoactive, is probably safer than the barbi-
turates it largely replaced; however, Bargmann et al., supra, note 56 at 27-39, report that Valium
causes birth defects, loss of coordination, serious depression, and a worrisome lack of a desire
to breathe. They conclude that the short term and temporary benefits are not worth the harm.
In addition, all psychoactives may be socially disruptive in subtle ways. One experiment of
note found that students taking the tranquillizer chlorpromazine cheated more than a control
group. See D. Glaser, “A Review of Crime-Causation Theory and Its Application” in N. Morris
& M. Tonry, eds, An AnnualReview ofResearch – Crime and Justice, vol. I (Chicago: University
of Chicago Press, 1980) 203 at 215.
82Julien, supra, note 37 at 34. According to Rice, supra, note 41 at 3, hormones, antibiotics
and the like are not “drugs of abuse” because they are “not excitant or calmative, not psy-
choactive that is”. Not surprisingly, psychoactives which are pain causing are not habit forming.
For example, phenothiazine and chlorpromazine are said not to produce “euphoria”; this,
however, is doubtful. A clearer case is lithium, which Julien, supra at 131-35, says is “not a
euphoriant” and has “almost no discernible psychotropic effect in normal persons”. The case
of iproniazid shows how difficult it is to classify a drug as non-euphoriant. Iproniazid was used
to treat tuberculosis until its “euphoric effect” was noticed, whereupon it was prescribed to
depressed persons as a symptom reliever. Barber, supra, note 47 at 14-15.
83Tobacco produces classic tolerance and physical addiction, a fact largely ignored before the
1960s because most smokers continued their habit until their deaths –
few attempted to quit
so there was little evidence about the strength of the addiction. Gritz & Jarvik, supra, note 42
at 11. Where tobacco supplies are cut off, as happened recently during strikes in Israel, smokers
riot, are described as “crazed” and comb through ashtrays looking for butts. “Smokers in Israel
Left Fuming” The[Toronto] Globe and Mail (5 July 1985) 9. Dupont, supra, note 39 at 32-33,
states his belief that all psychoactives including social psychoactives like gambling and TV
viewing, create “biologically reinforced, pleasure-producing behaviour disorders”, and that
nicotine use creates “the most common and deadly of all addictions”. He also argues that

1986]

PSYCHOACTIVE DRUGS

biases again operate here to exaggerate the addictiveness of illicit drugs and
to ignore, deny or downplay the addictiveness of medical and licit drugs. 84
Enforcement agents have often portrayed illicit drug users as stupid or un-
witting slaves sold into a life of bondage by dastardly “pushers”, 85 but these
assertions have proven baseless. 86 On the medical side, new psychoactives
are introduced as being safe, effective and non-habit-forming. 87 This illusion
can be maintained so long as clients take small doses for brief periods.88
However, enough people use medical psychoactives over extended periods
to demonstrate that their habituation potential is as great as that of illicit
and recreational drugs. 89

tobacco is not intoxicating, but alcohol-like intoxication is not a prerequisite of dependency.
Drug-induced satisfactions come in many forms including appetite suppression and relief from
pain, anxiety or fatigue.
84Hughes & Brewin, supra, note 67 at 32-36, charge that physicians and drug companies are
blind to the available evidence of tranquillizer addiction. Grinspoon & Hedblom, supra, note
77 at 156, cite related examples of a “peculiar blindness” in medical researchers to the add-
ictiveness of amphetamines. See also Courtwright, supra, note 58 at 144-47; Goode, supra,
note 7 at 228-31. Conversely, the addictive potential of cannabis is slight. Fredman and Burger,
supra, note 79 at 152. Yet the drug control literature repeatedly asserts a weak correlation
between cannabis and heroin while ignoring the almost universal connection between initial
use of tobacco and use of other drugs. See Carney, supra, note 47 at 164-67.

85See, e.g., E.E Murphy, The Black Candle (Toronto: T. Allen, 1922); H.J. Anslinger & W.E
Tompkins, The Traffic in Narcotics (New York: Funk & Wagnalls, 1953) at 20-25; H.W. Morgan,
Drugs in America – A Social History, 1800-1980 (Syracuse, N.Y.: Syracuse University Press,
1981).

86See J. Kaplan, The Hardest Drug: Heroin and Public Policy (Chicago: University of Chicago
Press, 1983) at 25ff.; Schroeder, supra, note 5 at 72-73; Grinspoon & Hedblom, supra, note 77
at 153; Helmer, supra, note 75, c. 1. Compare Rosenberg, supra, note 57 at 128-29.
871n defining a “medical” drug, Kaplan, supra, note 51 at 287-88, cites as one characteristic
that it should not be especially sought by illegal users. He then argues that amphetamines and
barbiturates are unique because they are in substantial demand for “recreational purposes”.
Actually, Kaplan’s two exceptions have just been available longer than other new “medical”
psychoactives. EM. Berger, “Introduction” in W.G. Clark & J. del Giudice, eds, Principles of
Psychopharmacology (New York. Academic Press, 1970) 1 at 4, also falsely claims that, unlike
alcohol and opium, “psychotherapeutic agents do not make healthy people feel ‘happy’, nor
improve their disposition . .. “. In contrast, Mendelson, supra, note 79 at 128-36, notes that
the introduction of every new hypnotic “has been followed within a few years by reports of
abuse.” Hypnotic use induces psychic dependency, leads to morphine-like withdrawal, higher
mortality rates and impaired driving. Most chronic users started on prescription or in hospital
although hypnotic use has little scientific support. See Mendelson, supra at 178-81 where he
provides a review of the inconclusive findings.

88Psychoactives are often tested medically at such low dosages that in blind tests, placebos
prove more powerful than the actual drug. Such tests are unlikely to uncover the drug’s rec-
reational or abusive potential.

89When benzodiazepines are taken in large enough doses for long enough, then “(like most
if not all psychotropic drugs) … physical dependence can result.” Marks, supra, note 49 at
41. See also H. Petursson & M.H. Lader, “Benzodiazepine Dependence” (1981) 76 Brit. J.
Addiction 133.

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Drug habituation following use is neither inevitable nor irreversible.
Alcohol dependency may take years to acquire. Untutored, first-time users
of opiates often find the experience unpleasant. 90 Most users of heroin,
cannabis, alcohol and cocaine are not addicted; the perpetual heroin addict
is a myth.91 Nicotine may be the most difficult drug to quit.92 However, in
addition to the addicting potential of various drugs, the social context of
use and the nature of the user must also be considered. Some people are
more addiction prone than are others and will become more strongly tied
to any psychoactive they regularly use.93 Those most attached to tobacco,
for example, are those who smoke to relieve anxiety.94

The question of drug dependency is actually one of derivative impor-
tance. There are other self-impairing behaviours that are not of major con-
cern because they are not fun, pleasant or popular. There are also many
unpleasant but productive activities like working and learning to which we
strive diligently to addict or habituate our children. Habit formation is thus
in and of itself a neutral concept. If drug use were benign it would scarcely
matter if drugs were addictive but for the problem of economic exploitation.
If all drugs were equally harmful then, of course, the most addicting would
be the worst. However, in reality, harmfulness and addictiveness are not
necessarily directly connected and the second is only relevant if the first is
present.

To conclude, the varied but socially constrained use of psychoactive
drugs is nearly universal. 95 Considering the weight of evidence available, it
is possible to conclude that psychoactives are best regarded as a single class
of substances. As a class, psychoactives can be distinguished from substances
such as food and water or drugs like antibiotics which are not mood ele-
vating, health impairing and addicting.

9DuPont, supra, note 39 at 33-40.
91Most analyses of heroin addiction treat a temporary, short-run situation as if it were
permanent. See G. Bernard, “An Economic Analysis of the Illicit Drug Market” (1983) 18 Int’l
J. Addictions 681 at 693ff. See also M. Rosenthal, “Partial Prohibition of Non-Medical Drug
Use: A Proposal” (1979) J. Drug Issues 437 at 447 and 451.
92M.A.H. Russel, “Tobacco Smoking and Nicotine Dependence” in Addiction Research
Foundation, Research Advances in Alcohol and Drug Problems, vol. 3 (New York: Wiley, 1976)
1 at 1.

93After reviewing the dependency literature, Marks, supra, note 49 at 41, concludes that it
is better to speak of “dependence-prone individuals … [who] can develop dependence upon
any or all of [these substances].” See also Kaplan, supra, note 8 at 1084; Goode, supra, note
7 at 5.

94Carney, supra, note 47 at 173.
95Weil, supra, note 45.

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PSYCHOACTIVE DRUGS

II. Drug Control and Principles of Justice

A. Justification

Justifiable coercive state measures against drug use depend upon two
prerequisites: first, that the use of drugs generates real defensive needs and
second, that self-help measures and private law remedies provide insufficient
self-defence thus forcing recourse to public law solutions.96

Drug use evidently does create significant defensive needs. In economic
terms, drug users impose costs on third parties. Examples of direct drug-
related externalities include litter, smoke damage, fires and a general increase
in accidents, errors and overall social risk.97 The bulk of drug-related costs
are borne by users themselves in the form of ill health, incapacity, and
shorter life. 98 This self-harm element is not a direct component of harm to
others. Suicide is not even broadly comparable to murder. Nonetheless, self-
harm is rarely pure or isolated. Self-harm does hurt others; the degree and
range of harm depends on cost-spreading techniques and social inter-de-
pendence. In a welfare-medicare state, the individual’s health is a public
issue, as citizens come to realize that their neighbour’s drug use, ill health,
absenteeism and lower productivity increase their taxes, costs and insurance
premiums. 99

Even if drug-related harms do merit a self-defence response, one must
still determine whether public law measures are called for. Informal social
restraints are all that primitive societies require in the way of drug con-
trols. 00 Similarly, an important anti-smoking mechanism in Western culture
is the perception that smoking is no longer intelligent, attractive or stylish.l0 1

96This follows the argument of R. Nozick, Anarchy, State and Utopia (New York: Basic
Books, 1974) at 23-26, that an ethically justified “minimal state” monopolizes the use of
legitimate coercion solely to provide a collective system of protection.

97See, e.g., Mitchell, supra, note 73 at 114-15.
98DuPont, supra, note 39 at 5, ascribes 30 per cent of all premature fatalities in the U.S. to
the use of alcohol and tobacco. He also suggests that the eight-year life expectancy advantage
enjoyed by women is due almost entirely to the higher rate of drug consumption by men.

99J.H. Knowles, “The Responsibility of the Individual” in J.H. Knowles, ed., Doing Better
and Feeling Worse: Health in the United States (New York: Norton, 1977) 57 at 59, observes
that “one man’s freedom in health is another man’s shackle in taxes and insurance premiums
….
[T]he idea of a right to health should be replaced by the idea of an individual moral
obligation to preserve one’s health …. ”

‘See D. Maloff et al., “Informal Social Controls and Their Influence on Substance Use”

(1979) 9 J. Drug Issues 161.

‘oSee J. Brody, “The Growing Militancy of the Nation’s Nonsmokers” The New York Times
(15 January 1984) 6E; M. Livingston, “Restricting Smoking in the Workplace” The Financial
Post Magazine (1 June 1983) 7.

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However, while smoking is going out of style, since 1945, alcohol has re-
gained some of its former popularity.10 2 Informal controls have also failed
to cope well with the rapid growth in availability of new and exotic psy-
choactives. Alcohol’s introduction devastated many cultures unprepared for
its attractions. Likewise, Western culture was unprepared for the hundreds
of new psychoactives introduced in recent decades. The social practices and
attitudes limiting use of alcohol, tobacco, coffee and symptom relievers like
opium could not adapt rapidly enough to deal with the new substances. 10 3

A social control failure does not in itself justify a public law response.
An intermediate position based on private law also exists. Drug users com-
mit torts, or civil wrongs, in imposing harm on others. The injured persons
could thus initiate private actions against the drug-using defendants. For
example, children might sue their drug-using parents for negligence in caus-
ing their birth-defects. Other drug-related harms might be legally categorized
as battery or nuisance.10 4

Tort law, however, is ill-suited in practice to counteract most types of
drug-related harm. Most drug-related harm to others is minor, causally un-
certain, and spread over a large, indeterminate plaintiff class.105 Transaction
costs severely hamper the effective collectivization of small, broad-based
interests. Civil procedure is often hostile to collective actions. 06 Rules in
some jurisdictions forbidding contingency fees also inhibit class actions. 10 7
And even when a class action is launched and a favourable judgment won,
a major portion of the award of damages will go toward legal costs.108 The
more massive the action, the less the plaintiffs’ and attorneys’ interests

1O2K. Makeld et al., Alcohol, Society and State, vol. 1 (Toronto: Addiction Research Foun-

dation, 1981) c. 2.

103 n the words of I. Illich, Limits to Medicine (London: Marion Boyars, 1976) at 63, “[p]owerful
medical drugs easily destroy the historically rooted pattern that fits each culture to its poisons

104″Smoking tobacco allows you to cause smoke damage to the persons and properties of
others the extent of which must be enormous, but has never been calculated.” Carney, supra,
note 47 at 170, thus suggests that smoking not only creates a nuisance, it provides an outlet
for aggressive acts against other people.
105See D. Rosenberg, “The Causal Connection in Mass Exposure Cases: A ‘Public Law’ Vision
of the Tort System” (1984) 97 Harv. L. Rev. 849 at 900-5. See also J. Trauberman, “Statutory
Reform of ‘Toxic Torts’: Relieving Legal, Scientific and Economic Burdens on the Chemical
Victim” (1983) 7 Harv. Env. L. Rev. 177; W. Freedman, Products Liability for Corporate
Counsels, Controllers andProduct Safety Executives (New York: Van Nostrand Reinhold, 1984).

’06Note, “Class Actions” (1976) 89 Harv. L. Rev. 1318.
107Contingency fees are prohibited or severely limited in Canada and England.
108The Rand Corporation study estimates that legal expenses took 75 cents of every dollar
paid out to plaintiffs in asbestos damage lawsuits. Letter from G.W. Bailey to the Editor (23
February 1982), reprinted as “Asbestos: The Argument for a Fund…” in The New York Times
(7 March 1982) F16.

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PSYCHOACTIVE DRUGS

correspond. Collective actions become a hybrid substitute for purely public
law. 109

Other problems with a private law response should be noted. 10 Pre-
vention of harm is a superior goal to after-injury compensation but tort law
is designed to compensate. Civil courts are not inclined or equipped to
enforce complicated injunctive remedies. Tort law enforcement necessarily
depends on the vagaries of private initiative and is thus unreliable. Even
when a single wrong is suffered by an identifiable plaintiff, public ignorance,
costs and attitudes seriously limit recourse to tort law solutions.I1 l Ex-
panding public law has been a justifiable response to tort law’s failure to
provide adequate deterrence. The incentive that propels tort actions is com-
pensation; deterrence is an optional side-effect. The opposite is true of public
law. Deterrence is the primary goal of criminal law while compensation to
the victim is optional.

Since private law fails to deter drug harms adequately, a public law
response is justified. However, such a response need not necessarily be mo-
delled on the criminal law.

B. Proportionality

State coercion is justified solely on the basis of an unmet, bona fide
need for collective defense; therefore, the degree of coercion employed must
be proportional to the harm defended against.’ 12 Extreme harms, like hom-
icide, call for severe responses whereas minute dangers, like illegal parking,
merely justify the mildest legal restraints. The ethical demand for propor-
tional punishment is quite obvious, yet the rule is flaunted by modem drug
control legislation.

Three basic methods exist for determining the relative degree of pun-
ishment a given wrongdoing deserves. The standard method is to measure
the amount of harm caused. Most drug-related harm is minor and com-
parable to general, chronic nuisances like littering and pollution. Such harms
are on a different scale from the severe, acute losses caused by sexual assault,

109K. Scott, “Two Models of the Civil Process” (1975) 27 Stan. L. Rev. 937.
“0 See, e.g., R.J. Pierce Jr, “Encouraging Safety: The Limits of Tort Law and Government

Regulation” (1980) 33 Vand. L. Rev. 1281.

1’See M. Kinsley, “Fate and Lawsuits: Litigation Doesn’t Work – How About Socialism?”
The New Republic (14 June 1980) 20; W.J. Blum & H. Kalven Jr, “Public Law Perspectives
on a Private Law Problem – Auto Compensation Plans” (1964) 31 U. Chi. L. Rev. 641.

“2See A. Brudner, “Retributivism and the Death Penalty” (1980) 30 U.T.L.J. 337 at 341.

234

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[Vol. 31

murder or robbery.113 Drug use does not fit the traditional criminal law
model. Drug users do not consume drugs to harm others. The harm to
others is usually minor and results indirectly from self-harm. Sedative-hyp-
notic use, especially alcohol use, increases the probability that the drug user
will engage in anti-social acts. We are justified in punishing this wilful cre-
ation of risk but this process must be separated from the serious harms that
some inebriates commit. Violent crimes are often perpetrated by alcohol-
impaired offenders, but the vast majority of alcohol users do not commit
violent crimes.114 The law should punish only the harm that necessarily
flows from acts or attempted acts. What necessarily flows from mass drug
use are higher third party costs, public nuisances and increased social risk.

When drug consumers under the influence cause serious harm the crim-
inal law should punish that harm alone, not the drug use. Alcohol does not
cause murder. Alcohol use, even excessive use, is common. Murder is rare.
The criminal law treatment of murder should not be contingent on the
presence or absence of drug use. Self-induced drug impairment should rarely
serve as a partial excuse. 15 Conversely, drug use should not amplify criminal
penalties. By this analysis, statutes that criminalize impaired driving are
unethical. An inebriated tavern patron may stagger home in a belligerent
mood and kill her spouse but this outcome is such a remote possibility that
we do not charge her preventively with being “drunk and dangerous”. Yet
this is what the law does if the inebriate assumes control of a motor vehicle.
Millions of people drive after consuming drugs. The likelihood of any one
of those drivers causing serious damage is low although the risk is higher
than for non-drugged drivers. 16 All drug-using drivers act in a mildly an-
tisocial manner, some actually drive dangerously and cause severe harm.

1 3N. Morris & G. Hawkins, The Honest Politician’s Guide to Crime Control (Chicago:
University of Chicago Press, 1969) at 2, feel that the criminal law threshold is not crossed
provided a person “does not directly injure the person or property of another.” This test is
acceptable only when indirect harm also happens to be minor harm. Treason may only result
in indirect injury; nonetheless, that injury may be major.
114C. Bartol, CriminalBehaviour – A PsychosocialApproach (Englewood Cliffs, N.J.: Prentice-
Hall, 1980) at 345-47. See also H. Fingarette & A. Hasse, Mental Disabilities and Criminal
Responsibility (Berkeley: University of California Press, 1979) at 101.
” 5See C.N. Mitchell, “Culpable Mental Disorders and Criminal Liability” (1985) 8 Int’l J.L.

& Psych. [forthcoming].

” 6The Department of Health and Human Services estimates that 35-65 per cent of drivers
in fatal traffic accidents had been using alcohol. But what portion of drivers not involved in
accidents had also been drinking? DuPont, supra, note 39 at 101-2, reports that 60 per cent of
American adults use alcohol regularly with the average drinker taking three doses a day. Since
young men both drink and drive more than do other groups, the average driver may be
consuming from 2 to 5 drinks a day. Millions of drivers probably mix driving and alcohol
frequently. Furthermore, tobacco and other psychoactives also impair driving skills, for ex-
ample, by limiting peripheral vision. He argues that to drive after even one drink is risky and
antisocial. By that standard a large portion of drivers are drug abusers.

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PSYCHOACTIVE DRUGS

In many cases where impaired driving charges are laid the driver will in
fact have been engaged in dangerous driving but the two offences are dif-
ferent. Dangerous driving is not predictive, nor is it related to the driver’s
condition. It focuses properly on actual driving behaviour.

Moving to proportionate penalties against drug use will disturb those
whose drug use is encouraged or subsidized by the present system. Sup-
porters of criminalization will be displeased as well since their program is
premised on the assumption that use of illicit drugs causes tremendous harm
comparable to the consequences of war or plague. Here the test for pro-
portionality is the degree of fear engendered rather than the actual harm
caused. Such a test is likely to be unethical since a subjective fear of drugs
need not be realistic or fair. Those who fear illicit drug use err in three major
respects. First, they attribute severe harm, like murder or robbery, to the
drug rather than to the drug-using criminal. Second, they observe the ex-
tensive harms caused by criminal prohibitions of drug use and mistakenly
blame those harms on the drugs.”17 Third, they ignore evidence indicating
that illicit drugs are no more harmful than licit or medical psychoactives.
The much vilified opiates, for example, are less inherently criminogenic
than is alcohol.” 18

A third method of determining the deserved punishment is the forced-
choice analysis. 119 Here respondents are directed to choose the lesser of two
harms. People would be asked, as an example, whether they would prefer
either being offered a chance to buy heroin or being compelled at gunpoint
to permit their leg to be crushed. If most people prefer the first choice we
may safely conclude that it should be punished less severely than the second.
Contrast this method with the usual survey questionnaire designed to elicit
the public’s punitive attitudes toward drug use. These surveys normally
employ a costless, noncomparative approach by asking, for example: “Do
you favour longer prison terms for heroin traffickers?” A “yes” answer to
such a question costs the respondent nothing. In contrast, the forced-choice
process imposes a type of pricing mechanism. In the example above, a vote
for severe penalties against heroin sellers would hypothetically cost a crushed
leg. Given such a choice, legislators would immediately retract current laws
subjecting heroin traders to life imprisonment.

“7See D.A.J. Richards, “Drug Use and the Rights of the Person: A Moral Argument for
Decriminalization of Certain Forms of Drug Use” (1981) 33 Rutgers L. Rev. 607 at 643-46.
11 8A recent survey of heroin-using criminals revealed that the criminals were more likely to
be under the influence of alcohol during the commission of an offence, that alcohol was taken
to aid in committing the crime and that their criminal income was used to purchase alcohol
before other drugs. See D. Strug et al., “The Role of Alcohol in the Crimes of Active Heroin
Users” (1984) 30 Crime & Delinq. 551.

1 9For an application of this type of analysis, see M. Davis, “Setting Penalties: What Does

Rape Deserve?” (1984) 3 L. & Phil. 61 at 83.

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I suspect that very few people would prefer any physical harm to the
opportunity to participate in any of the “victimless crimes”. Even lesser
harms, like being robbed of ten dollars, would not be chosen, in preference
to being offered heroin. That choice is reasonable since in itself selling heroin
causes no harm. Consider then the choice between having a friend, colleague,
relative or neighbour use psychoactive X or being robbed of ten dollars.
Most people would likely prefer the first source of harm except where the
consumer of the alcohol, antihistamine or cannabis is their own child. Since
in many situations people are indifferent to their neighbour’s drug use, I
would predict that there are non-criminal harms that would be ranked as
more disturbing than drug use. Examples of the nuisances that neighbours
inflict on others that might be so ranked include burning garbage outside,
keeping barking dogs, leaving grounds unattended, racing motor vehicles
or being rude. The results of a forced-choice analysis should demonstrate
that the drug use of others is on a par with nuisances that impose a level
of harm far below the threshold needed to justify criminal law penalties.

C. Fairness

Justified and proportional legal restrictions against drug use must also
be fair. Apologists for selective enforcement argue that if we choose to punish
A but not B for the same offence, that is not an injustice to A since A
deserves punishment independently of what befalls B. K.C. Davis correctly
responds that “if equality of treatment is one ingredient of justice, one
cannot know whether penalizing A is just without looking at B’s case –
and C’s and D’s.” 120 Therefore, individuals should have constitutional re-
course to defend against criminal charges and penalties on grounds of sys-
tematic or selective non-enforcement. Similarly, it is unjust to assign alcohol
to a given regulatory scheme if nicotine, caffeine, cannabis and other psy-
choactives are not also included. This does not imply that every psychoac-
tive would be treated identically any more than every offence in the criminal
law system is punished identically. A thorough fairness argument would
expand to include non-drug equivalents as well – what Marks calls the
“social psychoactives”. 121

Fairness plays a central role in contract theories of justice. Since ex-
perience shows that the fairest contracts are those negotiated by equally
resourceful parties, it is arguable that the best recipe for deriving fair laws
is to put legal contractors into the same position. John Rawls achieves
equality theoretically by placing his “original contractors” behind a “veil

120K.C. Davis, Discretionary Justice: A Preliminary Inquiry (Baton Rouge: Louisiana State

University Press, 1969) at 170.

121Marks, supra, note 49 at 9-10.

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PSYCHOACTIVE DRUGS

of ignorance”. 122 Legislators devising drug laws from the original position
would not know whether in reality they were cocaine importers, tobacco
addicts, brewers, college students, marijuana plantation owners, physicians
or law enforcers. They would be appraised of all the historical and scientific
information about psychoactive drugs but they would be ignorant of their
own preferences and social position. Under such constraints, these legis-
lators would not reinvent current drug laws because those laws reflect the
unjust exploitation of social power and majoritarian interests.

In the Rawlsian ideal, a legal system should duplicate the results of a
voluntary agreement between unbiased and equal contractors. Legal equality
and fairness apply to drug users in two respects: equivalent treatment for
users of similar substances and equivalence between drug users and persons
engaged in equally harmful but non-drug-using behaviours. Systematic equality
for drug users means that all psychoactives should be subject to the same
uniform control system. Before considering which of the five possible control
models is most suitable, the paper will first examine the justice-based ar-
guments of certain other drug control reformers.

M. A Comparative Justice Analysis

A. Taking Human Rights Semi-Seriously

David Richards rests his case for drug law reform on the rights-based
approaches of Kant, Rawls and Gewirth. 2 3 He dismisses the utilitarian
framework and criticizes other reformers for relying strictly on a cost-benefit
analysis. Richards admits that current drug laws are wasteful and ineffective
but he asserts that it is more important to argue that criminalizing drug use
violates human rights.12 4

Richards rejects prohibition because it fails the test for proportionality.
He demonstrates that the reputed criminality of illicit drug users is ridic-
ulously exaggerated, that habituation is miscast as enslavement and that
any degree of illicit use is falsely portrayed as serious abuse. In short, the
harm caused by illegal drugs is magnified to match the level of harm that

122J. Rawls, A Theory of Justice (Cambridge, Mass.: Belknap Press, 1971). Likewise, J. Skol-
nick, “Coercion to Virtue: The Enforcement of Morals” (1968) 41 S. Cal. L. Rev. 588 at 624,
instructs his hypothetical legislator to “ask himself how he would respond to penal sanctions
forbidding the smoking of cigarettes, the drinking of coffee, … or any other commonly prac-
ticed activity which, if ‘excessively’ indulged in, might lead to social and personal harm.”

123Richards, supra, note 117 at 619.
124The central legal argument Richards makes is that decriminalizing vice offences such as
drug use would uphold and reaffirm constitutional rights, especially the right to privacy. D.A.J.
Richards, Sex, Drugs, Death, and the Law:An Essay on Human Rights and Overcriminalization
(Totawa, N.J.: Rowman & Littlefield, 1982) at 30-34.

REVUE DE DROITDE McGILL

[Vol. 31

would justify current legal penalties. Law enforcers foster this deception to
maintain their self-respect. For Richards, the obvious solution is to lower
penalties so that they match the actual harm caused. Richards then dismisses
a free market control system because he judges it to be insufficiently
restrictive. 125

The problem with Richards’ analysis concerns the fairness requirement.
Fairness is considered but not in a consistent manner1 26 A rationing system
for marijuana is rejected on universalist grounds. Richards argues that if
rationing would be “inappropriate in the cases of such drugs as alcohol or
nicotine, it would seem, a fortiori, that it should be rejected in the case of
marijuana.”‘ 127 He labels marijuana rationing “hypocritical” since it ignores
the greater harm caused by alcohol and because it does not sufficiently
honour personal choice. Richards then tentatively suggests that people “may
have a right to take potentially harmful drugs”. Yet following this, Richards
decides that heroin, mescaline, LSD and certain other drugs should be avail-
able, solely on prescription, from state authorized medical authorities. Pre-
scription is described as a “kind of license” the state gives physicians so
that they can exercise “proven medical competence” to minimize drug-
related damage.128

Richards presents no evidence to prove that either heroin or mescaline
is more damaging than alcohol. Nevertheless, he assigns them to a separate
control system, a discriminatory policy he condemned when applied to
cannabis. Secondly, prescription is ethically equivalent to the compulsory
committal Richards earlier rejected as an unwarranted measure. 129 A pre-
scription system forces drug users to accept medical supervision. Such coer-
cion is much less onerous than forced confinement in a “detoxication”
centre but the ethical difference is merely one of degree. Both surrender
individual autonomy to medical authority in a state-run system where phy-
sicians serve a police, rather than a medical, role.

Richards understands that psychoactives are used for creative, cere-
monial, recreational and symptomatic relief purposes. This understanding

12 5Supra, note 117 at 681.
126Ibid. at 682. For another discussion of Richards’ inconsistencies, see D. Galloway, Book

Review (1984) 34 U.T.L.J. 100 (Review of Richards, supra, note 124).

127Richards, ibid. at 681.
1281bid, at 673ff. and 680.
129Ibid at 679. DuPont, supra, note 39 at 63, 116 and 317, evidences the same curious bias
and lack of integrity. On one hand, he urges us to ignore the different legal status and historical
usage of the various psychoactives. He understands that alcohol and tobacco are the major
drug problems. Nevertheless, he regrets having once promoted the decriminalization of can-
nabis; he recommends criminal law controls without the slightest consideration of their justice
or cost; and he casts physicians in a leading police role as monitors of illicit drug use among
their own patients.

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PSYCHOACTIVE DRUGS

puts into sharper relief his failure to explain why physicians rather than
lawyers, bartenders, coaches, teachers or clerics should have supervisory
control over drug use. Richards’ claim that physicians exercise proven com-
petence in controlling drug use is unsupported by evidence. On the contrary,
the evidence suggests that MDs often prescribe drugs carelessly, even neg-
ligently, and that their rehabilitative efforts are consistently marked by fail-
ure. 30 Many critics identify physicians as part of the drug-abuse problem
because of their personal example and their overpromotion of deceptive
chemical “solutions”. 131

Richards is also wrong in comparing prescription to a licensing system.
Under a licensing scheme, individuals have a right to use drugs, a right
subject to certain legal restraints. Under a prescription system, the individ-
ual has no right to use the controlled drugs. He may have a right to treatment
but this right is limited by the power of medical interests to determine what
constitutes “treatment”. Almost every drug now classed as illicit or non-
medical was once a medical treatment. 132 Prescription is much closer to
prohibition than licensing.

In the The Heroin Solution, Arnold Trebach, like Richards, condemns
American policy makers because they “criminalized heroin, converted ad-
dicts into criminals, and proselytized this repressive policy to the world”. 133
Trebach realizes that people use drugs like heroin for fun and that 90 per
cent of heroin users are not “addicts”. He also calls for drug control solutions
that are “democratic”, a term implying a willingness to promote fairness.
However, Trebach decriminalizes heroin only to medicalize it. Heroin use
is called a disease; he speaks of a global “epidemic” for which there is no
“complete cure”. Nevertheless, we are urged to “bring addicts into a varied
system of medical, caring treatment”. 134

Under Trebach’s proposal, physicians could prescribe heroin to the
“organically ill and the addicted”. 135 Since he knows most heroin users are

130See Mintz, supra, note 68 at 39 and 185. See also Illich, supra, note 103; Malleson, supra,

note 77.

131See E.C. Lambert, Modern Medical Mistakes (Bloomington: Indiana University Press,

1978); Mendelsohn, supra, note 70; Garan, supra, note 40.

132See, e.g., Rublowsky, supra, note 47 at 166; J.B. Bakalar & L. Grinspoon, Drug Control
in a Free Society (Cambridge: Cambridge University Press, 1984) at 74-75; and see, generally,
notes 31-33.

133A. Trebach, The Heroin Solution (New Haven: Yale University Press, 1982) at 289. See
also M.H. Moore, “Regulating Heroin: Kaplan and Trebach on the Dilemmas of Public Policy”
[1984] Am. Bar Found. Res. J. 723 at 724 and 728. Moore supports coerced treatment for
heroin users; thus, he describes both Kaplan and Trebach, with whom he agrees, as “realistic”
and “careful scholars”.

’34Trebach, ibid.
’35Ibid. at 290.

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not addicts, Trebach must intend to prohibit their access to the drug. They
are not sick. Physicians will be free to experiment with every “rational
approach” to drug user rehabilitation, including methadone maintenance
and Zen Buddhism. In other words, physicians as state agents will be per-
mitted to operate scientifically discredited programs and to co-opt any re-
ligious rituals. Clerics will, of course, not acquire countervailing medical
privileges. Trebach’s unstated objective is actually the bolstering of a ther-
apeutic state at the expense of a once powerful theocracy. Since heroin is
merely a battlefield on which political gains can be amassed, the scientific
evidence is immaterial to Trebach. 36 Unfortunately, elitist therapeutic con-
trols, like their theocratic predecessors, are potentially much more dangerous
than are state criminal controls because they are administered without re-
gard for due process or rule of law.

B. Utilitarianism and Liberal Pragmatism

John Kaplan, a pioneer cannabis decriminalizer and medicalizer, be-
lieves public law restrictions on drug use are justified in terms of both public
harm and self-harm. 137 Justifying state action on the basis of self-harm leads
Kaplan into a confrontation with J.S. Mill. Mill’s familiar argument is that
government is generally not justified in compelling people to act or to fore-
bear from acting merely for their own good or, in other words, that pro-
hibiting the use of alcohol or other drugs is not warranted on self-harm
grounds. Mill allowed for two exceptions, however, either of which, Kaplan
claims, suffices to defeat a policy of permitting drug use as a matter of right.
Mill’s first exception concerned children. He felt that children “must
be protected against their own actions”. While true, this rule does not justify
state action. Mill mistakenly believed that society has “absolute power over
[children] during all the early portion of their existence”. 38 But in the main
it is parents who control children not “society”. Since real paternalism is
far more powerful and important than state controls, the state traditionally
has been a minor factor in children’s lives. 39 Parents hold nearly absolute
power over their children’s religious, political, ethical, cultural and dietary

l36Ibid. at 293.
137See Kaplan, supra, notes 8, 51 and 86. See also J. Kaplan, Marijuana: The New Prohibition

(New York: World, 1970).

Press, 1975) 5 at 15 and 101.

13J.S. Mill, “On Liberty” in R. Wollheim, ed., Three Essays (London: Oxford University
139The doctrine ofpatria potestas, dominant until the fourteenth century, did not allow for
any state intervention with respect to children. Thereafter, the parens patriae doctrine emerged,
whereby in limited circumstances the state would assume the obligations of the natural parents.
In recent centuries, many statutory limits concerning child labour, compulsory schooling, child
welfare, delinquency and treatment for infectious diseases have limited the control of parents.
See L.C. Wilson, Juvenile Courts in Canada (Toronto: Carswell, 1982) at 1-3.

1986]

PSYCHOACTIVE DRUGS

frameworks. State prohibitions applying to children alone compete directly
with parental control and are usually perceived as violations of parental
prerogatives. Mill’s rule justifies parental, not state, regulation of children.
Parents should limit their child’s access to drugs, just as they should prohibit
bad posture, poor study habits, rudeness, fighting and excessive television
viewing. The state is not justified in enacting similar prohibitions. Where
such attempts are made –
for example, Canada and most American states
they are unenforced and irrelevant.1 40
prohibit children’s use of tobacco –
According to Mill’s second exception, the state should prohibit vol-
untary slavery because it is “not freedom to be allowed to alienate [one’s]
freedom”.14′ Mill’s case against absolute freedom of contract in the personal
service field, even if accepted, need not be applied because heroin use is
not slavery. Kaplan suggests that for “some” heroin users “the metaphor
of slavery … is not so farfetched.”‘ 142 But drug addiction does not seriously
restrict choice as evidenced by the millions of alcohol, nicotine and caffeine
addicts who can adequately cope as long as they are permitted to secure a
supply legally.

In the end, Kaplan rejects Mill’s entire proposition, noting that “no
modem state … has ever followed Mill’s principle with respect to all activ-
ities.” 43 The legislative record of modem states in the drug control field
seems to be a shaky basis for an ethical argument. In any event, Mill’s rule
only applied to self-harming behaviour that did not also harm others. Drug
use tends to impose costs on others.

Kaplan then turns to Rawls for support on the self-harm issue. A Rawl-
sian contractor, Kaplan argues, might consent to laws that made “reasonable
efforts to prevent his weakness from causing him great damage.” 144 This is
a valid moral justification for intervention in a case of pure self-harm. The
contentious matters are the nature of reasonable limits and the meaning of
“great” harm. Kaplan implies that full prohibition could seem reasonable
to a risk averse contractor but that is unlikely in drug regulation since
criminal law penalties are usually more detrimental than the self-harm caused

‘4 0Mitchell, supra, note 73 at 127-29.
1’Mill, supra, note 138 at 126.
14 2Kaplan, supra, note 86 at 105. The slavery metaphor of foreclosing future liberty raises
two issues: the permanence or severity of foreclosure and the effects of foreclosure. Kaplan,
supra at 34-38, realizes that most heroin users are not permanent users and he may even grant
that under controlled circumstances all heroin consumers could abstain. In contrast, contractual
arrangements such as marriage can be made both permanent and severely restricting. Marriage,
although in some respects a mutual voluntary slavery, is condoned because its effects are largely
positive. Conversely, heroin addiction is wrong even if only slightly compelling, because its
effects are negative.

’43Ibid at 106.
‘4aIbid. at 108 [emphasis added].

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by drug use. Some level of legal restraint might be voluntarily accepted but
it would not be the criminal law. Kaplan answers critics who charge that
present heroin laws grossly exceed traditional levels of paternalism in Western
law by identifying an “endless” list of other paternalistic measures from
building codes to minimum wage laws. 145 Kaplan makes two mistakes here.
First, if his other examples are themselves unjust and counterproductive,
their alleged consistency with heroin prohibition provides no ethical sup-
port. 146 Second, Kaplan fails to cite criteria determining the acceptability
of paternalism. In many cases high decision-making costs force individuals
to transfer some decision-making authority to the government. 147 Kaplan
avoids such social contract explanations because he wants to equate drug
prohibition with consumer protection laws. But the difference in scope and
impact of these two types of state intervention is monumental. Heroin
prohibition involves criminal penalties and state coercion of the highest
order. Pure food laws involve standard setting and minor, non-criminal
disincentives usually assessed against businesses.

Kaplan fails to consider seriously the non-prohibitionist tradition in
American jurisprudence. The American Constitution does not explicitly
guarantee the right to use drugs but the framers probably did not think it
necessary to spell out such an obvious personal prerogative. For the same
reason they did not guarantee the right to wear the clothes, eat the food or
sing the songs of one’s choice. 148 A right to self-medication may be implicitly
granted by explicit protections given to the pursuit of happiness. 49 It is
noteworthy that an Amendment to the Constitution was required to permit
the prohibition of alcohol.

Erich Goode adopts the same pragmatic approach as Kaplan but with
less recourse to philosophic considerations. Perhaps as a result, Goode’s
recommendations are more realistic. Goode assumes that “[d]rug use is here
to stay, and the only way to eliminate illegal drug use- is to eliminate the

l45Ibid at 102-3.
’46With respect to minimum wage laws M. Friedman, Capitalism and Freedom (Chicago:
University of Chicago Press, 1962) at 180, makes the familiar argument that “insofar as [they]
have any effect at all, their effect is clearly to increase poverty.”

metheus Books, 1984) at 264.

147S. Kelman, “Regulation and Paternalism” (1981) 29 Pub. Pol’y 219.
148This reasoning follows the discussion in T. Szasz, The Therapeutic State (Buffalo: Pro-
149For an extended analysis of this issue see J.S. Oteri & H.A. Silverglate, “The Pursuit of
Pleasure: Constitutional Dimensions of the Marihuana Problem” (1968) 3 Suffolk U.L. Rev.
55 reprinted in (1971) 1 Drug Abuse L. Rev. 502 [hereinafter cited to Drug Abuse L. Rev.].
The vitality of the constitutional arguments possible in the U.S. contrasts strikingly with the
narrow, legalistic and uncritical pre-Charter inquiry in Canada. See J.B. Laskin, “Constitutional
Authority in Relation to Drugs and Drug Use” (1980) 18 Osgoode Hall L.J. 554.

1986]

PSYCHOACTIVE DRUGS

laws outlawing the use of certain drugs.” 150 For Goode, the central policy
issue can be briefly stated: “[g]iven a population of heavy drug users … how
can we minimize harm to everyone involved?”151 He argues that the hysteria
over a relatively minor group of heroin users is “misplaced” and that drug
laws are prejudiced against young, non-white, working class and non-med-
ical users. 52 Goode concludes that “drastic measures” to control drug use
are not feasible, and that instead measures to regulate the use and sale of
all psychoactives should be considered. Goode does not propose a control
program himself but he is clearly more willing than Kaplan to apply drug
controls broadly.

C. Taking Justice Seriously

Thomas Szasz is perhaps the leading advocate of freeing drug users
from both police and medical supervision. 153 Szasz realizes that drug use
is self-harming, sometimes severely so. Nonetheless, he believes citizens
should have the right to ingest any drug just as they have right to freedom
of speech and religious observance. 54 Since this position piggybacks on
existing constitutional protections, it implicitly imports legal restraints judged
reasonable in other contexts. Self-expression can harm others, hence the
state imposes restrictions with respect to libel and slander, sedition, false
advertising, copyright infringement, obscenity, hate literature and so on.
The freedom of speech does not excuse a public nuisance created by am-
plified broadcasts, nor does religious freedom excuses what would otherwise
be a serious crime. Neither artistic expression nor divine inspiration excuses
murder or assault. Szasz recommends the same legal result for voluntary
drug use: a basic right constrained by reasonable laws promoting public
defence.’ 55

150Goode, supra, note 7 at 254. The Shafer and Le Dain Commissions rejected cannabis
regulation because they feared it would institutionalize a transient phenomenon. Goode’s uni-
form approach precludes such a consideration because while use of one drug might decline
and end, use of all psychoactives must be regarded as long term. See F. Logan, ed., Cannabis
– Options for Control (Sunbury, Eng.: Quartermaine House, 1979) at 39.

15’Goode, ibid. at 254-55.
152Ibid, at 268-69.
153Szasz, supra, note 148 at 263. A. Hellman, Laws Against Marijuana (Chicago: University
of Illinois Press, 1975) at 6-15, in his discussion of Szasz’s position, makes the usual error of
assuming that proofofmarijuana’s harmfulness suffices to defeat the decriminalizer’s argument.
For his part, Hellman rules out criminal law controls for cannabis by relying on Kaplan’s cost-
benefit approach.

154Szasz, ibid. at 263-66.
155″Like most rights, the right of self-medication should apply only to adults, and it should
not be an unqualified right. … [T]he limiting condition… should be the inflicting of actual
(as against symbolic) harm on others.” Szasz, supra, note 10 at 42-43.

McGILL LAW JOURNAL

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This position assumes that protection of autonomy does not depend
upon proof of harmlessness. Voting rights and church independence are
protected despite the possibility of voters making harmful choices or church
members entertaining fantastic delusions. Szasz may agree with Karl Marx
that religion is an intoxicating and harmful “opiate of the masses” but Szasz
would not on that account prohibit or repress church membership. 56

Since no scientific tests can distinguish licit from illicit drugs, Szasz
concludes that the drug question is ethical, not medical. From this per-
spective the medicalization of drug users raises a parallel between a theo-
cratic and a therapeutic dictatorship. The centuries-long struggle to separate
church and state is compared by Szasz to the current legal battles against
joint medical-state enterprises such as forced treatment, protected medical
monopolies, involuntary commital and drug prohibitions. 157 Richards agrees
that criminal laws have been abused by “majoritarian legislators” to enforce
a specific theocratic ideology, yet he appears to favour the enforcement of
a particular medical ideology. 158 Szasz does not make that mistake.

Szasz’s argument is also more legalistic than Richards’ case for human
rights because Szasz stresses the need for legal equality. He criticizes drug
criminalizers for failing to see that licit drugs as well as “countless other
objects in the environment” are as dangerous as the substances we pro-
hibit.’ 59 Criminalizers may respond that although the existing restrictions
are not fair they at least limit some drug-related harm. But this rational-
ization does not adequately account for the fact that illicit drugs cause such
a small fraction of total drug harm that any non-biased planner would
concentrate on major problems like alcohol and tobacco use. Furthermore,
concern for the health of illicit drug users cannot be the real reason for
prohibition since these users would be healthier under some less extremist
scheme. What then is the purpose of prohibition? Szasz suggests that certain
drugs are outlawed as symbols of sin and wickedness. As symbols, these
drugs are forced into roles and burdened with fictional characteristics by
groups who simultaneously create and purport to solve the “drug problem”.’ 60

156Szasz, supra, note 148 at 265.
157Ibid.
’58See Richards, supra, note 117 at 680, where he states that if decriminalized “some form

of the medical license would, most plausibly, be required for heroin use.”

159Szasz, supra, note 148 at 267.
’16The drug persecution complex can also be instructively compared with the persecution
of masturbators in the nineteenth century. It appears fantastic in retrospect but masturbation
was widely accredited by experts and the public alike to be a terrible, pathogenic vice. See
Szasz, supra, note 3 at 116-17. Such views are now ridiculed with many experts even reversing
course to claim that “self-abuse” is therapeutic. See B. Zilbergeld, The Shrinking of America:
Myths of Psychological Change (Boston: Little, Brown, 1983) at 201-2. That theory probably
lacks scientific merit as well but at least it proves less abusive of human rights.

1986]

PSYCHOACTIVE DRUGS

Since Szasz understands that drug use is not significantly more or less
dangerous than harmful pastimes we do not prohibit or assign to medical
control, he argues that justice precludes dissimilar treatment before the law
for drug users. 161 Szasz also rejects current control systems since they apply
only to certain drugs and are thus unfairly discriminatory. 162 Drug laws are
unethical then because they are not uniform and because they do not deal
with equivalent behaviours or wrongdoings consistently. The remaining
issue, which is one Szasz does not address, is what level and type of legal
restraint on the right to use drugs would be reasonable.

D. Justice and Regulatory Design

The conclusions drawn from a justice-based analysis depend less on
the technique chosen than on the thoroughness, consistency and empirical
accuracy with which that technique is employed. Any of the techniques so
far surveyed are capable of producing the same general answers about the
design of an optimum drug control system. Consider briefly, in turn, a cost-
benefit analysis and a rights-based analysis of drug regulation. According to
the cost-benefit technique, regulation aims to achieve the greatest benefits
at the lowest costs. Benefits include the amount of harm avoided. This will
depend upon the harm caused by the regulated behaviour and the degree
to which that behaviour is deterred or positively modified by the regulatory
program. For example, completely deterring behaviour that causes little
harm will not achieve significant benefit. Benefits also include compensation
paid by wrongdoers to those they injure. Preventing injury is preferable to
compensating injury but where injury has occurred, compensation is the
best solution. Against such benefits are counterbalanced the costs of regu-
lation. Such costs include enforcement expenses, legal “side-effects” and the
impact of regulation on wrongdoers.

Of the five possible regulatory models, both criminal law controls and
medical prescription are low benefit-high cost systems. As will be explained
below in greater detail, they are low benefit programs because they fail to
deter much drug use. Indeed, both systems may encourage drug use. For
example, criminal law prohibitions and attendant media sensationalism serve

161See also H.M. Greenstein & P.E. DiBianco, “Marijuana Laws – A Crime Against Hu-
162Szasz, supra, note 148 at 262-67.

manity” (1972) 48 Notre Dame Law. 314.

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to advertise the existence and euphoriant properties of illicit drugs. Simi-
larly, medical psychoactives are promoted by their designation as “medi-
cines” and are portrayed as acceptable drug solutions.163 Prohibition and
prescription are high cost programs, first, because they are individualized.
That is, they process or treat single individuals one at a time. Moreover,
the two systems employ expensive, professional personnel such as lawyers,
police, judges and physicians. The second reason for high costs is that both
systems trigger expensive “side-effects”. As Kaplan demonstrates, prohi-
bition gives rise to black markets, organized crime, quality control problems,
police corruption and disrespect for the law. 164 Prescription control compels
physicians to play a police role and thus compromises the ethical and profes-
sional duties they owe to their patients.

One of the five regulatory possibilities is a medium benefit-low cost
system. This is the free market-private law control program. It is a medium
benefit system because social sanctions 65 and private actions can signifi-
cantly deter drug-related harms and because damage awards serve to com-
pensate injured parties. It is not a high benefit system because of imperfections
in and inherent limits to the available sanctions. 166 The regulatory costs are

’63Pharmaceutical manufacturers are often blamed for the promotion of drug use but, ac-
cording to Illich, supra, note 103 at 72, “the per capita use of medically prescribed drugs around
the world seems to have little to do with commercial promotion; it correlates mostly with the
number of doctors, even in socialist countries where the education of physicians is not influ-
enced by drug industry publicity and where corporate drug-pushing is limited.”

’64Kaplan, supra, note 86 at 95ff. For an account of drug-related police corruption in Britain,
see B. Cox, J. Shirley & M. Short, The Fall of Scotland Yard (London: Penguin Books, 1977).
Recently in Australia the Premier of New South Wales was convicted of a drug-related offence,
the Prime Minister’s daughter confessed to being a “heroin addict” and commentators report
that the New South Wales police force has been “almost completely discredited” due to drug-
related corruption. See R. Phinney, “Scandal on High Down Under” The [Toronto] Globe and
Mail (15 June 1985) 9. Perhaps the best and most thorough overview of the present drug law
is found in S. Wisotsky, “Exposing the War on Cocaine: The Futility and Destructiveness of
Prohibition” [1983] Wis. L. Rev. 1305. Wisotsky, supra at 1421, states as his main concern
that the futility of prohibition leads to a “built-in tendency of the law enforcement apparatus
to grow inexorably.., in an authoritarian direction.” S.D. Cashman, Prohibition: The Lie of
the Land (New York: Free Press, 1981) at 210-19, recounts how, under the Volstead Act during
the 1920s, the frustrated goal of alcohol prohibition led repeatedly to logical extension of the
law, a process that continued until shortly before the Roosevelt administration spearheaded
repeal of the Eighteenth Amendment.

165R.C. Ellickson, “The Inadequacies of Law-and-Economics and Other Theories of Social
Control” in Faculty of Law, University of Toronto, Law and Economics Workshop Series (30
October 1985) at 17-20 [unpublished], offers an interesting response to the belief of “legal
centralists” that governments are always the chief source of rule (or law) enforcement. Ac-
cording to Ellickson, norms and rules are largely enforced through “self-help measures, not
legal processes”. Inducements are also used increasingly by businesses seeking to reduce em-
ployee drug use. See A. Toufexis, “Goodies to the Good” Time (18 November 1985) 126.

166See infra, note 207ff. and accompanying text.

1986]

PSYCHOACTIVE DRUGS

low because the government’s role is small or irrelevant and because social
and private law sanctions tend to have minor impact on wrongdoers.

The last two regulatory models considered are rationing and tax-licen-
sing. These tend to be high benefit-low cost programs for the following
reasons. First, both systems offer attractive deterrent potential through either
direct limits on drug supplies or price control. Deterrence depends not just
on the scale of the penalty or disincentive but on the certainty, frequency
and swiftness of its application. The impact of a mild sanction universally
imposed can exceed that of a severe punishment rarely infficted. Second,
tax controls, but not rationing controls, make possible the related payment
of compensation to injured persons. With respect to costs, both systems are
depersonalized, mass control programs capable of reducing administrative
expenses to pennies per transaction, and of being operated by non-profes-
sional personnel. Since neither system imposes major sanctions, affected
parties are not unduly burdened, significant black market activity is not
sparked and the inducements for police corruption and abuse are limited.
A thorough cost-benefit analysis should, therefore, conclude that an opti-
mum drug control scheme will closely resemble the present tax-licensing
regulation of alcohol and tobacco. Not surprisingly, these two drugs are not
only the major psychoactives consumed, they are the drugs Western culture
has had the most time to learn, through trial and error, how to regulate.

Though a rights-based analysis employs different techniques and con-
cepts, similar conclusions about which drug control system is superior can
be reached. The concepts that will now be considered may be summarized
under the headings of proportionality, equality and natural rights.

Proportionality in tort law essentially limits a plaintiff’s damages to
the actual amount of injury suffered. In criminal law, proportionality limits
the extent to which the state is justified in imposing penalties; the basic
ethical limit established is that punishment should be fitting given the nature
of the offence.’ 67 Criminal assault and tort battery that involve the merest
touching, little apprehension and minimal harm should be met with a small
award of damages and a minor criminal law sentence. Conversely, an assault
and battery resulting in severe pain and suffering should be counteracted
by a large damage award and a harsh criminal sentence. When the propor-
tionality limit is applied to the minute harm to others caused by an indi-
vidual act of drug taking, an objective observer must conclude that there

’67See, e.g., the comparative discussion of the justice of criminal penalties and tort damages
in G. Williams, “The Aims of the Law of Tort” (1951) 4 Curr. Legal Probs 137. Williams,
supra at 147, claims that tort law “still seeks ‘the object all sublime –
to make the punishment
fit the crime’ … when the criminal law is giving up the effort to do so.” For an alternate and
more recent appraisal of criminal law retribution see G. Newman, Just and Painful Punishment:
The Case for Corporal Punishment in Criminal Justice (New York: Macmillan, 1983).

McGILL LAW JOURNAL

[Vol. 31

is no criminal law penalty small enough to match that level of harm. Like-
wise, the level of compensation justified will almost always be far below
that which a practical tort system can provide.’ 68 Certainly, a court can
award damages of 10 dollars or even 10 cents but very few parties will seek
compensation worth far less than the effort expended to gain it.

In most cases, a proportional response to drug use will not include
criminal or medical controls because they are “over-repressive”. Conversely,
proportional responses could include social sanctions, tort damages or in-
junctions, rationing, taxation and standards governing time and place for
drug use. The scale and nature of such disincentives are in keeping with
the scale and nature of drug-related harms.

The second traditional rights-based ethical requirement is equality or
fairness –
the enjoinder that like cases should be treated alike. As discussed
above, the question of whether taking different psychoactive drugs is “like
behaviour” may be answered culturally or scientifically. At present, Western
culture embodies certain strong biases about drugs so that the subjective-
cultural answer is that drug taking in general does not constitute “like be-
haviour”. Scientifically and objectively the opposite conclusion may be reached.
Therefore, what is at stake is not the applicability of the equality requirement
but rather the equivalence or non-equivalence of psychoactive drug
consumption.

If the empirical evidence presented above and the conclusions drawn
from it are accepted, then fairness demands that all psychoactives be treated
legally as equivalent substances. This does not mean that all drug users
would be treated identically; rather they would all be subject to the same
general control program. Equality itself does not determine which control
program should be universally applied. For example, it would be fair as
between drug users if the criminal law prohibited all such drug use on pain
of death. Similarly, it would be fair if no drugs were prohibited.

Without relying on cost-benefit calculations, the choice of which reg-
ulatory program to universally apply can be arrived at through consensus
or public election. It is argued in Part IV that if people are forced to make
a fair choice and to regulate their own drug use exactly as they regulate the
drug use of others, they will reject criminal or medical controls in favour
of one of the less intrusive control programs. Certainly, individuals may
employ their own cost-benefit analysis to determine which control system

168J. Stapleton, “Compensating Victims of Diseases” (1985) 5 Oxford J. Legal Stud. 248 at
248, argues that because the “conceptual machinery [of tort law] dramatically favours” accident
victims, “effective tort liability is principally confined to cases of traumatic injury.” Specifically,
she claims, supra at 250, that “the most important barrier to the success of tort claims for
man-made disease is medical causation.”

1986]

PSYCHOACTIVE DRUGS

they prefer to inflict on themselves. However, that process of calculation
differs substantially from the formalist process adopted by Kaplan whereby
the theorist attempts to produce a general cost-benefit conclusion. In the
rights-based framework described above, the conclusion depends on indi-
vidual choice and preference, leading to consensus.

The third and final rights-based analysis begins by proclaiming the
existence of certain basic, natural or inalienable rights. For instance, the
new Canadian Charter of Rights and Freedoms states that everyone has
such “fundamental freedoms” as “freedom of conscience and religion” and
“freedom of thought, belief, opinion and expression …” .169 The establish-
ment of such rights is conclusory. No formula is provided by which the
selection of certain rights and the exclusion of others can be explained. In
this context, a right to use the drugs of one’s choice can be promoted in
two ways. First, such a right or freedom can simply be proclaimed as part
of the basic rights protection package. If such a proclamation is lacking, the
second possibility is to argue that a specified right, such as “the right to
liberty” guaranteed in section 7 of the Charter, extends far enough to cover
the disputed action.’ 70 Attempts to rule out drug prohibitions in the United
States on constitutional grounds have so far failed. The constitutional po-
sitions put forward have been logical, attractive and empirically accurate.
They have failed, nonetheless, because of the courts’ strong biases in drug
matters and because of the courts’ reluctance to overrule duly elected
legislators. 171

Should either method succeed in establishing a basic right to use the
drug of choice, that right will be legally circumscribed in certain ways. The
Charter, for example, subjects the guaranteed rights “only to such reasonable
limits prescribed by law as can be demonstrably justified in a free and
democratic society.”‘ 72 In other words, a basic right to use drugs would be
subject to legal limits traditionally employed to restrict other basic rights.

1982, c. 11, s. 2 [hereinafter the Charter].

169part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.),
170American courts have considered whether drug use is a “fundamental right”. A 1968
decision of the Massachusetts Superior Court affirmed that there is no all inclusive list of
fundamental rights; such rights as have thus far been recognized tend to be related “to some
commonly acknowledged moral or legal duty and not merely to a hedonistic seeking after
pleasure.” Oteri & Silverglate, supra, note 149 at 506 ^×.. See also supra at 517,
where they conclude that courts should abandon the “fundamental right” concept and instead
begin to consider “the least restrictive alternative”, a concept based explicitly on cost-benefit
determinations.

171Ibid. at 507. The authors question, supra at 530, whether the laws, “by treating substantial
equals (alcohol and marihuana, although alcohol is generally acknowledged to be the more
harmful) as unequals, thereby run afoul of the requirements of equal protection.”

172Charter, supra, note 169, s. 1.

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This would rule out prohibition and prescription since books, churches and
political rallies are not subject to stringent criminal law-or medical controls.
It would not rule out social sanctions or private law actions since a right
to free expression does not excuse libel or other civil obligations. A right
to use drugs would also not rule out a tax on drug sales, no-smoking rules
for public places, anti-littering ordinances or even rationing. All of these
regulations could be “demonstrably justified” as “reasonable” limits within
Western legal traditions.

IV. Uniform Regulation

A. Criminal Prohibition

In submitting each regulatory scheme to a public-choice test wherein
the program selected must be applied to all psychoactives, it is clear to begin
with that uniform prohibition of all drugs is readily ruled out. Other people’s
drug use imposes minor costs on those injured so individuals would be
unwilling to avoid such costs by subjecting their own drug use to the pos-
sibility of penalties. With murder, the calculus is quite different. Individuals
willingly bear the small risk of being punished for murder in order to defend
themselves against the severe harm of someone murdering them. The Rawl-
sian contractor’s answer to self-harm through drug use would also reject
criminal law sanctions because a tobacco habit is less harmful than prison
and a criminal record. In practice, the users of tobacco, coffee, alcohol and
diazepam would not criminalize their own behaviour merely to defend
themselves against the very minor threat posed by cannabis or cocaine users.

Other obstacles to a universal prohibition are readily noted. Indeed,
the costs, disruptions and social expense of a total drug prohibition are so
large that they cannot be seriously contemplated. Since almost everyone
would be a drug criminal, there would be a drastic shortage of non-com-
promised administrators. Furthermore, the millions of people now depend-
ent for their income on the production and sale of drugs would suffer severe
financial loss. Alcohol sales alone netted $66.4 billion in the United States
in 1984.173 Since full enforcement would be impossible, universal prohi-
bition would probably extend and amplify the side effects of current pro-
hibitions namely police corruption, selective enforcement, black markets,
organized crime, dubious legal judgments and international conflict with
countries not sharing the same policies. 174

173J.D. Reed, “Water, Water Everywhere” Time (20 May 1985) 68 at 70.
1740n these and other costs of prohibition see Kaplan, supra, note 51. See also N.M. Regush,
The Drug Addiction Business (New York: Dial Press, 1971); P. Rock, ed., Drugs and Politics
(New Brunswick, N.J.: Transaction Books, 1977).

19861

PSYCHOACTIVE DRUGS

B. Prescription and Medical Supervision

The probable lack of public support for total mandatory prescription
is suggested by the fact that only two categories of psychoactives are usually
assigned to medical controls. These are new drugs that have no existing
body of users to antagonize, and illicit drugs, like heroin, whose users are
so heavily punished already that a shift to medical control may represent
a relative lessening of restrictions. In contrast, coffee, alcohol and tobacco
users would feel intolerably imposed upon if their drugs were reclassified
as “controlled substances”. The majority of licit drug users, who are also
the majority of voters, 175 would likely reject prescription-only access as too
expensive, inconvenient and demeaning.

Universal prescription is also objectionable because it would provide
insufficient social protection against drug harms. The duties, training and
incentives of physicians render them ill-suited to perform the role of social
protectors. If physicians were the sole legitimate source not only of Valium
but of all alcohol products, they would reap enormous, monopolistic profits
from the rapid scripting of alcohol prescriptions and they would buy into
distilleries and breweries as they have bought into pharmacies and drug
manufacturers. 176 Alcohol producers would presumably bribe physicians
with gifts, sponsored symposia, free samples and private “research grants”
just as pharmaceutical firms do now. 177 Physicians wanting to act on behalf
of social protection would face a major dilemma. If they refused to prescribe
alcohol many of their customers would turn to other, “less ethical” physi-
cians. Or, if a group of prescribers organized a joint anti-social campaign,
their customers would frequently turn to adulterated and possibly unsafe
black market products. Even physicians convinced of alcohol’s overall neg-
ative impact could still properly calculate that prescribing alcohol was in
the best interests of their client.

As a rule, permissive prescribing would be needed to forestall criminal
elements from dominating the trade. This strategy would be forced upon
any private group or profession awarded a drug distribution monopoly –
either distribute moderately if not generously, or be eclipsed by illicit traders.
Within this constraint some incentives variations would occur. The stan-
dard, fee-for-service physician would most likely practise assembly-line pre-
scription whereas salaried medics would be more restrictive, either under

’75See supra, notes 7, 15, 74 and 116.
“6See Mintz, supra, note 68 at 306 and 313; S.M. Wohl, The Medical Industrial Complex
(New York: Crown, 1984) at 89 and 92; M. Silverman, P.R. Lee & M. Lydecker, Prescriptions
for Death (Berkeley: University of California Press, 1982) at 120 and 127-28.

‘”During Prohibition, American physicians did become assembly line script writers for
alcohol prescriptions. See Szasz, supra, note 4 at 127. On the present relationship between
physicians and drug producers see Silverman & Lee, supra, note 67 at 54-75.

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public plans like the British National Health Service, or private plans like
the Kaiser system in California. 178

Physicians as controllers are hindered by their duty to their clients. The
role of protector, confidante and fiduciary forces the physician to put in-
dividual needs before collective interests. It is redundant and foolish to
compromise physicians with police tasks since we can easily empower non-
fiduciaries to serve as enforcement agents. As it stands, the law usually gives
physicians public police powers without imposing countervailing respon-
sibilities. Physicians are not made liable for the drug-related costs inflicted
on other people by their clients. Since physicians do not internalize third-
party costs, they are not motivated to curtail drug consumption rates to the
extent possible. Physicians could be compelled to bear all the costs of their
prescribing choices if the government set annual license-to-prescribe fees at
the requisite level. Faced with such fees, physicians would be forced to
abandon their drug monopoly because, unlike government, the medical
profession lacks the police resources to enforce drug sales at a cost-inter-
nalizing price in light of competition from illegal sources. Physicians can
therefore only succeed as social protectors if they operate as government
agents. Such a partnership is unstable because government can operate ef-
fective controls on drug use without any assistance from physicians. More-
over, government is, to some degree, representative of, and responsible to,
the public, whereas a private profession is usually elitist and undemocratic.

If universal prescription is unattractive as a social defence measure,
might it still be acceptable as a shield against self-harm? Clients seek profes-
sional expertise when they lack special knowledge or skill, and where errors
would be costly. To reduce risks, clients in many situations delegate au-
thority to physicians. 179 However, delegating prescriptive authority is not
warranted by this analysis since drug use does not require much technical
expertise, because physicians are not the most reliable or cost-effective source

178Grinspoon & Hedblom, supra, note 77 at 9, give anecdotal evidence of permissive pre-
scribing, describing the case of one amphetamine user who approached over 50 MDs during
a six-year period and was only once denied free samples or a liberal prescription. On the issue
of salary versus fee-for-service structures see J. Allsop, Health Policy and the National Health
Service (New York: Longman, 1983).
t79See S. Peltzman, “The Health Effects of Mandatory Prescriptions” (Consumer and Cor-
porate Affairs Seminar Series, Carleton University, 22 November 1985) [unpublished] at I,
who states that prior to the 1938 Food, Drug and Cosmetic Act, Americans could purchase
any “non-narcotic” drug without prescription. Nevertheless, from 25-35 per cent of all drug
purchases involved prescription prior to 1939. Supra at 4 and 7. Peltzman, supra at 41, con-
cludes from his recent investigation that “enforcement of prescription-only regulation does not
significantly improve the health of drug consumers.” (Note that this study included both psy-
choactives and medicines such as antibiotics.)

1986]

PSYCHOACTIVE DRUGS

of expertise or information about drugs and because there are important
confficts between the interests of physicians and their patients. 80

Physicians systematically fail to act in the best interests of their patients.
The literature provides many instances of widespread abusive practices where
physicians overpromote drugs, surgeries and psychotherapies which are un-
necessary and counterproductive. 18 Practising physicians are not disinter-
ested scientists; they are members of a powerful guild organization. 82 Loyalty
to the guild and fraternity often supercedes loyalty to patients or to the
public. Medical priorities are evidenced in a variety of circumstances: by
collusion among physicians not to testify in malpractice suits,’ 83 by the
failure of medical associations to remove or restrain unfit members, 8 4 by

180H-ughes & Brewin, supra, note 67 at 193-95 and 194, claim that physicians are very
susceptible to drug-firm influence and that their reliance on pharmaceutical companies for
education “is a blatant case of conflict of interest that would not be tolerated in any other
profession.” See also K Koumjian, “The Use of Valium as a Form of Social Control” (1982)
15 Soc. Sci. & Med. 245 at 248; N. Layne Jr, “Restricting Access to Non-Psychoactive Med-
ications: Public Health Necessity or Disabling Professional Prerogative?” (1984) 14 J. Drug
Issues 595. On the adequacy of ethical and legal guidance available to physicians with respect
to the confidentiality of patient records see R.M. Gellman, “Prescribing Privacy: The Uncertain
Role of the Physician in the Protection of Patient Privacy” (1982-83) 62 N.C. L. Rev. 255.

’81The average physician treats 75 per cent of her patients by drug prescription, the most
prescribed drugs being tranquillizers, analgesics and sedatives. J. Graedon, The People’s Phar-
macy (New York: St Martin’s Press, 1976) at 3-4. WohI, supra, note 176 at 182, estimates that
80 per cent of emergency room visits are unnecessary, 40 per cent of all hospital stays are not
medically indicated and, supra at 92, that about $21 billion is lost each year to “unnecessary
drug-related hospitalizations”. See also Malleson, supra, note 77 at 20-21, 37 and 61. See also
A.L. Cochrane, Effectiveness and Efficiency: Random Reflections on Health Services (London:
Nuffield Provincial Hospital Trust, 1972); A. Allentuck, Who Speaks for the Patient?: The Crisis
in Canadian Health Care (Don Mills, Ont.: Burns & MacEachen, 1978); L. Tushnet, The
Medicine Men: The Myth of Quality Medical Care in America Today (New York: St Martin’s
Press, 1971); D. Wolcott, E Fawzy & R. Coombs, “Reinforcing Networks: The Medical, Phar-
maceutical, Mass Media and Paraphernalia Establishments” (1984) 14 J. Drug Issues 223. For
a critical analysis of medical psychiatry in particular see M.L. Gross, 2 he Psychological Society
(New York. Random House, 1978); Zilbergeld, supra, note 160.
182See E. Freidson, Professional Dominance: The Social Structure of Medical Care (New
York: Atherton Press, 1970); I. Kennedy, The Unmasking ofMedicine (London: Allen & Unwin,
1981).
183H.R. Lewis & M.E. Lewis, The Medical Offenders (New York: Simon & Schuster, 1970)
at 302. In general, physicians tend to be uninterested in disciplinary activity. State medical
practice acts do not help as they usually “uphold the malpractitioner and victimize the patient”.
Lewis & Lewis, supra at 63 and 29. See also A.K. Dolan, “Antitrust Law and Physician Dom-
inance of Other Health Practitioners” (1980) 5 J. Health Pol., Pol’y & L. 675.

184See, e.g., R.S. McCleery et al., One Life-One Physician: An Inquiry into the Medical Profes-
sion’s Performance in Self-Regulation (Washington: Public Affairs Press, 1971); W.J. Goode,
“The Protection of the Inept” (1967) 32 Am. Sociological Rev. 5.

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lobbying efforts against patient protection laws l8 5 and by chauvinistic aggres-
sion against female patients. 86

Physician-client conflicts can be reduced in the drug therapy field if
prescribers are in practice made liable for drug-related harm suffered by the
drug taker. Physicians are liable in law for drug harms intentionally or
negligently infficted’ 87 but liability is easily avoided for a number of rea-
sons.188 Drug harms are often subtle, long term and causally uncertain. 8 9
Patients change physicians, take other drugs and physicians move, retire or
die. In many cases, neither party will link final results with a particular
course of drug use. These problems are minimized when the harm is acute
or when the prescribed drug is taken for a short, well-defined period. But
given the euphoriant potential and popular appeal of psychoactive drugs,
such substances attract repeated, chronic and even lifelong use. This would
be true for prescribed alcohol and it has become the case for new sedatives
like barbiturates and diazepam. Such developments tend to be ignored or
blamed on human perversity since physicians do not intend long-term use
to occur. 190 Thus new drugs are marketed before the results of chronic con-
sumption are known. If alcohol were invented in the 1950s instead of di-
azepam, alcohol would now be prescribed as a safe, effective, non-habit
forming sedative or tranquillizer. But as patients began to take alcohol for
months and years rather than weeks, its medical gloss would fade and a

185″For the past forty years, the American Medical Association has worked to the detriment
of the patient in nearly every way imaginable.” Crichton, supra, note 50 at 62. “Despite the
strong opposition of the AMA, a federal law passed in 1963 now requires that all contrain-
dications of drug use … be published in every advertisement …. ” Note also the AMA’s
uncritical support of the Federal Bureau of Narcotics. Grinspoon & Hedblom, supra, note 77
at 264 and 287. See also E. Cray, In Failing Health (Indianapolis: Bobbs-Merrill, 1970); M.L.
Gross, The Doctors (New York: Random House, 1966).
186See, e.g., C. Dreifus, ed., Seizing our Bodies: The Politics of Women’s Health (New York:
Vintage Books, 1977); G. Corea, The Hidden Malpractice – How American Medicine Treats
Women as Patients and Professionals (New York: William Morrow, 1977); R.S. Mendelsohn,
Male Practice: How Doctors Manipulate Women (Chicago: Contemporary Books, 1981).

187See, e.g., J.E. Britain, “Product Honesty is the Best Policy: A Comparison of Doctors’ and
Manufacturers’ Duty to Disclose Drug Risks and the Importance of Consumer Expectations
in Determining Product Defect” (1984) 79 Nw. U.L. Rev. 342 at 370-74.

188See Stapleton, supra, note 168.
89latrogenic drug-related harm is underestimated according to Mintz, supra, note 68 at 2-
9, because many drug mishaps are not recognized (autopsy is still rare), some mishaps are not
connected to their drug-related cause (e.g., impotence due to tranquillizer use), physician re-
porting systems are “unreliable or nonexistent”, and both physicians and drug producers are
loathe to indict themselves by volunteering evidence.

90Prescription analyses reveal that for most recipients medication is not repeated after one
month, although 15 per cent in one study continued to receive prescriptions continuously for
at least a year. See J. Murray, T. Williams & A. Clare, “Health and Social Characteristics of
Long-Term Psychotropic Drug Takers” (1982) 16 Soc. Sci. & Med. 1595 at 1595.

19861

PSYCHOACTIVE DRUGS

growing critical literature would warn the public to avoid alcohol just as
they are now counselled to avoid the use of benzodiazapines.’ 91

Since chronic use of psychoactives apparently brings net disvalue to
users, physicians would refuse to prescribe except on an emergency basis if
they were defacto liable for the damage. Emergency-only prescribing would
protect people from self-harm. But such extreme medical restraint would
fuel a pervasive black market. To curtail the black market, physicians would
have to prescribe generously but they could not do that and at the same
time accept liability for self-harm to patients. Prescription would then be
feasible only on condition that the drug taker assume full responsibility but
such a condition would contradict the rationale of compulsory prescription.
No private supplier could afford to sell psychoactives to a mass market and
be held liable for the resulting damages.

As for technical expertise, much drug use involves social influences,
rituals, cultural imperatives, styles and other matters in which physicians
are not expert. Even when technical skill and knowledge are relevant, phy-
sicians are questionable sources of expertise. For example, physicians rely
heavily on pharmaceutical firms for drug information. 92 Both producers
and prescribers have some interest in looking for benefits and in not looking
for long-term consequences. In many reported cases, physicians continue
to prescribe a drug despite plain warnings from both producers and gov-
ernment agencies.193 Physicians often resist informing their patients about
the drug prescribed; package inserts are not included and contraindications
are not mentioned.1 94 In some countries, physicians protest if pharmacists
put the drug’s trade name on the container.195 Pharmacists are legally pre-
vented from advising customers directly although they are often more
knowledgeable about drugs than are physicians. 196 Trade secrets masquerade
as expertise as physicians restrict client access to drug information to amplify
client dependency and to elevate their own status and income. According
to a number of reports, physicians tend to be poorly trained in pharma-
cological areas. 97 The focus of medical training is crisis intervention –
the

191See Marks, supra, note 49; Bargmann et aL, supra, note 56.
192Grinspoon & Hedblom, supra, note 77 at 258-65. See also supra, note 177.
193Mintz, supra, note 68 at 12-14, 39 and 76; Graedon, supra, note 181 at 37ff.
194See, e.g., A. Spake, “The Pushers” in Dreifus, supra, note 186, 177.
195M. Muller, The Health of Nations: A North-South Investigation (London: Faber & Faber,
1982) at 211. See also M. Tonkin, South Africa – A Nation of Pill Swallowers (Johannesburg:
Institute for the Study of Man in Africa, 1977).
19 6Silverman & Lee, supra, note 67 at 310-12.
1971bid. at 301 and 307. H. Bloch, “Toward Better Systems of Drug Regulation” in Landau,
supra, note 32, 243 at 247, argues that most physicians are scientifically “naive” and incapable
of properly evaluating all drug information; he therefore recommends a special prescribers
licence.

McGILL LAW JOURNAL

[Vol. 31

technical solution of immediate, often life-threatening conditions. Non-cri-
sis fields such as nutrition, neurosis and drug habituation are clearly not
marked by medical successes.’ 9 8

Individuals sometimes require detailed, accurate information about drugs
and drug interactions but that need does not justify a system that also
compels them to acquire medical permission to take the psychoactive. 99
Nor does it justify a monopoly allowing only physicians, and not nurses,
paramedics, pharmacists or psychologists, to sell such information. It is
likely that more informed choices about the use of psychoactive drugs would
be made if it were not for forced reliance upon physicians as the sole in-
formation source.

C. Government Rationing

Under rationing controls, drug users would neither be criminalized nor
subject to compulsory medical supervision. Individuals would have the right
to use drugs in the form and the amounts made available. The only pro-
hibition would be against non-authorized sales.

Rationing by a public body avoids the conflicts inherent in medical
controls. Unlike physicians, government exists to promote collective self-
defence and is liable for defensive failures. Government health, welfare and
other agencies bear a significant portion of drug-related costs. Government
also possesses enforcement resources and the monopoly on police action
needed to maintain a restricted supply of drugs.

Rationing would be less intrusive and less expensive than either crim-
inal law or medical controls. Clerks rather than physicians would operate
the system and few police resources would be required. Rationing could
serve social defence needs by setting ceilings on national drug consumption
rates as the Soviet government is presently doing with alcohol. Such ceilings
could be restrictive without being prohibitive. For example, a government
might decide to cut alcohol consumption by half Rationing could also

198According to J.J. Fried, The Vitamin Conspiracy (New York: Saturday Review Press,
1975) at 200, physicians are “particularly ignorant about nutrition”. There is new evidence
that increasing access to health care (long the sole measure of medical program success) does
not in fact improve health. See also P.K. Diehr et aL., “Increased Access to Medical Care –
The Impact on Health” (1979) 17 Med. Care 989; Knowles, supra, note 99; Illich, supra, note
103.

’99Peltzman, supra, note 179 at 42, claims that individuals are not less likely to seek a
physician’s advice regarding antibiotics, even if such drugs can be obtained without prescrip-
tion. In other words, people know enough to seek expert medical assistance when they need
it. This implicitly suggests that mandatory prescription exists primarily to force individuals
who do not want or require medical services to purchase them anyway.

1986]

PSYCHOACTIVE DRUGS

prevent self-harm more effectively than would prescription because gov-
ernment has stronger incentives to pursue disease-preventing policies. Re-
ducing overall drug use is the major preventive measure in this field but,
in addition, government could selectively ration the more damaging forms
of the various drugs. The public could also be provided with comprehensive
information about adverse drug effects. Such information could be provided
inexpensively through package inserts, warning labels, school instruction
and public service advertising. Drug information is more efficiently con-
veyed by public agencies and word-of-mouth than by expensive private
interviews in a physician’s office. Under a rationing scheme, people could
still seek professional advice about drugs but they would not be forced to
do so. 20a

Rationing systems are not without their faults, as experience with war
time rationing, rent controls, minimum wage laws and the Soviet “com-
mand economy” rationing of many personal goods and services illustrate. 20′
Rationing coupons are counterfeited. Ceilings are arbitrarily set. The sig-
nalling role of market prices is subverted or destroyed. Distribution is often
inefficient and competition is reduced. Unproductive disincentives such as
waiting in line replace price disincentives. Product quality declines. Bu-
reaucratic systems are vulnerable to political abuse. Multi-tier arrangements
evolve, with low rations for the masses and special supplies for foreigners
and political elites. Rationing also tends to be cumbersome as it ignores
variations in individual preferences.

Despite these drawbacks, Rawlsian contractors would prefer universal
drug rationing to either universal prohibition or prescription because ra-
tioning would limit externalities and mitigate self-harm more effectively
and at a lower cost. An estimation of actual public support should come to
the same conclusion. During wartime, voters accept rationing and, as noted
above, much of the Soviet economy embodies rationing mechanisms. In
addition, many people in the Western world actively call for increased ra-
tioning in such areas as rental housing, energy, income, education and em-
ployment opportunities. These demands are understandably met with vigorous

2
00In Yugoslavia, for example, the government pays for drugs on prescription while the same

drugs are available without prescription: ibid. at 5 n. 1.

20 See, e.g., A.P. Lerner, The Economics of Control (New York: Macmillan, 1944) at 50-52,
who suggests that despite its faults, war rationing is justified as “a form of state guardianship
to prevent foolish spending”. Lerner does not explain what constitutes foolish spending but
would probably include the purchase of addicting, health impairing psychoactive drugs. See
M.I. Goldman, Soviet Marketing – Distribution in a Controlled Economy (New York: Free
Press of Glencoe, 1963). See also “Socialism: Trials and Errors” Time (13 March 1978) 24 at
35 where it is reported that “[c]orruption, black marketeering, bribery and theft are endemic
in Communist states”. See also a report on the massive trafficking in food stamps in the U.S.:
“Definitely Not USDA Approved” Time (23 August 1982) 10.

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opposition and in the case of drugs such opposition would come mainly
from users of current recreational drugs since their drugs are the most freely
available.

D. Tax-Licensing Controls

The differences between tax controls and rationing reflect the differences
between market allocation and a centrally ordered economy. The rationale
for tax controls is to counteract market imperfections, such as pollution and
drug-related costs, by forcing prices to account for the full social costs in-
volved. The tax-inflated price signals some degree of official disapproval
and manipulates buyers through general economic disincentives. Unlike
rationing, tax controls retain the flexibility of market allocations with their
allowances for personal preferences. No arbitrary ceilings need be set. Taxes
also raise revenue and thus provide incentives for government to enforce
the controls. Like rationing, tax controls would not criminalize or medicalize
drug use. Law enforcement resources would focus on the prevention of
untaxed sales, not on the harassment of drug users.20 2

The conceptual objective of tax and licensing controls for distributors,
retailers and on-premise sellers would be to duplicate the results of a class
action against drug users. Since government already exists as a collective
agency, a public law program against drug “defendants” is the lowest cost
alternative to an actual tort action. Public law controls also avoid certain
drawbacks inherent in private law initiatives against chronic, repeated
wrongdoing. Courts lack the apparatus to assess and collect small compen-
satory sums for the duration of the continual tortious acts. Tax controls
solve this problem. Taxes are also superior to fines or judgments because
these must be extracted directly from the tortfeasor. In contrast, taxes can
be collected impersonally at the wholesale or retail level before the tort is
committed. Taxes thus pre-emptively limit drug-related harm by reducing
drug consumption whereas fines compensate or punish harm already caused.
On the other hand, the tax is predictive in that it anticipates harm and it
is generalizing since it does not distinguish between two persons buying the
same amount of drug although in fact they will impose different costs on
third parties. Still, the burden can vary according to the type and amount
of drugs used so that in general those generating the highest externalities
will pay the most tax. Such approximations and other deviations from the
pure individuality of tort law are necessary if liability is to be borne by the
millions of drug users.

2020n the acceptability of excise taxes in general and sumptuary taxes in particular see C.N.
Mitchell, “Willingness-to-Pay: Taxation and Tax Evasion” (1985) 21 Mem. St. U.L. Rev. 127
at 156-75.

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PSYCHOACTIVE DRUGS

A regulatory tax based on the tort model must be a fault-based tax.
That is, tax level should be proportional to the level of harm caused by the
drug use. If alcohol per standard dosage is more harmful than caffeine or
cannabis then the tax on alcohol should be higher. Similarly, tax rates for
smokeless tobacco products should be lower than those for cigarettes because
of the absence of smoke damage to other persons.

Criminal, medical and rationing controls attempt to deter drug-related
costs but they ignore compensation needs. In contrast, tax controls raise
revenue which can be used to finance remedial efforts or to reduce other
tax burdens. In either case, an approximation of the plaintiff class would
receive some compensatory benefit paid by a general defendant class. Having
drug users pay tax compensation directly to government also avoids the
legal costs and deadweight losses of a real class action. However, for this
system to work, the setting and collecting of tax should probably not be left
to revenue departments. The United States Treasury’s role in fomenting the
present extremist controls is well known.2 0 3 Control responsibility should
instead be assigned to health, education or welfare departments.

In addition to tax disincentives, a range of injunctive measures are
required to regulate no-smoking zones, product quality, returnable bottle
systems, advertising standards, warning labels, and so forth. 204 Again, courts
are not well suited to administer such long term, continual and complex
regulatory measures.

Tax-licensing controls are also plausible restrictions in terms of self-
harm. Price disincentives can be designed to discourage the more damaging
modes of drug intake and to encourage less damaging modes. Sniffing, smok-
ing or injecting drug X is more damaging than eating or drinking the same
substance. Tax rates could reflect this difference. Price differentials can sim-
ilarly dampen demand for the more harmful drugs in a given drug family.
Since barbiturates are evidently more damaging than benzodiazepines, they
should be more heavily taxed regardless of whether the two drug types are
associated with different levels of harm to others. Since tax penalties are
quite minor relative to the possibilities for self-harm, drug users are likely
to accept such restraints more readily than they would accept the previous
models.

203B. Freemanfle, The Fix: The Inside Story of the World Drugs Trade (London: Michael

Joseph, 1985) at 69.

24Advertising controls and health warnings appear to play a minor role in reducing tobacco
consumption. In contrast, taxes are an effective restriction. See J. Bishop & Jang H. Yoo,
.’Health Scare’, Excise Taxes and Advertising Ban in the Cigarette Demand and Supply” (1985)
52 South. Econ. J. 402 at 410.

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Government efforts to limit and prevent self-harm do not mean that
government should be liable for self-harm. A major failing of the prescrip-
tion system is that it holds out the false promise of physician liability. The
belief that physicians are liable for self-harm leads patients to assume that
physicians would not prescribe any harmful, addicting drug. This pre-
sumption would be true if physicians were, in fact as well as in law, re-
sponsible for compensating all drug-related damage. But since liability is
easily avoided, individuals are inappropriately encouraged to be less defen-
sive, less critical and less self-reliant than they should be. 20 5 No such con-
fusion or empty assurances will occur in connection with either tax controls
or rationing. People will be forewarned that all psychoactives are harmful
and habit forming. They will then bear the cost of that portion of self-harm
that is not automatically covered by welfare-medical programs.

Would Rawlsian contractors accept tax disincentives as a self-protection
measure? The answer is not certain. Even with ample warnings about drug
effects, some people optimistically assume that they will not become de-
pendent on the drug or that use will not cause them serious damage. If
humans naturally discount future risks to some degree then Rawlsian con-
tractors will do likewise. Thus contractors who overestimate their self-con-
trol and discount drug risks might be reluctant to bear “needless” tax penalties.
However, the contractors would delegate authority to some public body to
enforce drug quality and safety standards.

Practical acceptance of tax controls will depend primarily on the trade
off between personal restraint and the avoidance of costs imposed by others.
The strongest supporters will be abstainers or light users who suffer more
harm from others than they inflict in return. Since these people will pay
less in tax than they receive in compensation they will generally welcome
tax controls. Opposition will come from those in the higher drug tax brackets
who will pay out in compensation more than they receive. Hardest hit will
be the heavy, polydrug users, appropriately enough, since they cause the
most damage. Current criminalizers will also oppose tax controls because
an objective fault-based system necessarily rejects the implicit and subjective
indices of fault contained in statutory penalties for drug use offences, which
ignore alcohol and nicotine users and punish cannabis and cocaine con-
sumers. (For convenience, reference is made to people as users of a single

205According to Graedon, supra, note 181 at 4, most patients are “utter fools” because they
consider their prescribed drugs to be “completely safe”. Grinspoon & Hedblom, supra, note
77 at 271, write that most physicians “have discovered that the American public has been
trained to expect only good from drugs, especially new drugs, and many doctors either capitalize
on this situation or fail to meet its pressures. They are particularly apt to prescribe psychoactive
drugs even when no definite indications for any drug treatment exist …. ”

1986]

PSYCHOACTIVE DRUGS

drug, but most people use a variety of drugs. For example, most serious
abusers of any drug are also nicotine addicts.)20 6

E. Free Market Controls

Under this least restrictive alternative, drugs would be dealt with like
other commodities. Certain general regulations and laws would therefore
apply. New drugs would be tested and quality standards set. False and
misleading advertisement would be curtailed.20 7 Physicians would be liable
for harm caused by reasonable reliance on their advice. Producers would
be liable for damage resulting from defective products or from failure to
warn. The right to use drugs would be subject to the same limitations af-
fecting other rights.

Much of the restrictive potential of free market controls depends upon
private law developments and expanding theories of liability.20 8 Drug use
would be inhibited if employees could sue employers for failing to provide
a smoke-free environment or if employers could sharply discriminate against
drug users in hiring and firing employees. Considerable restraint would also
be achieved if drug users, like tobacco smokers, were successful in negligence
suits against tobacco companies. A finding of negligence could conceivably
be based on the manufacturer’s failure to warn customers that tobacco was
both damaging and addictive. 20 9 A rash of such actions would force pro-
ducers to raise prices, thereby detering some consumption. Drug producers
in that tort climate would probably find it less expensive to practise full
disclosure. By issuing full and comprehensive warnings they could even-
tually avoid blame for their customers’ self-harm. Drug advertising might

(1985) 60 Notre Dame L. Rev. 779.

206Carney, supra, note 47 at 160-65.
207See, e.g., Note “Restraints on Alcoholic Beverage Advertising: A Constitutional Analysis”
208See, e.g., Note “The Liability of Providers of Alcohol: Dram Shop Acts?” (1984) 12 Pep-
perdine L. Rev. 177; EH. Fern & W. Sichel, “Evolving Tort Liability Theories: Are They Taking
the Pharmaceutical Industry into an Era of Absolute Liability?” (1985) 29 St Louis U. L.J.
763; L.W. Brackins, “The Liability of Physicians, Pharmacists, and Hospitals for Adverse Drug
Reactions” (1985) 34 Def. L.J. 273.

20gPaul Monzione, a lawyer working with Marvin Belli in San Francisco, is employing this
argument on behalf of his now-deceased client, John Galbraith, a long time nicotine addict.
Addiction allows Monzione to argue that, although the plaintiff knew about the health risks
of smoking, his addiction rendered him incapable of acting wisely or responsibly. The inter-
esting development here is to see whether the “thin skull” principle will be extended to include
the addiction or habituation prone personality. G.E Will, “Tobacco vs. ‘Thin Skull Doctrine’
The [Ottawa] Citizen (11 February 1985) A8. See also B. Rudolph, “Tobacco Takes a New
Road” Time (18 November 1985) 98 at 98-99; H.M. Sapolsky, “The Political Obstacles to the
Control of Cigarette Smoking in the United States” (1980) 5 J. Health Pol., Pol’y & L. 277 at
288.

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be voluntarily eliminated under these conditions. Promotional advertise-
ment would also be abandoned if the courts were to determine that any
measure intended to encourage drug use was itself negligent. Under such a
doctrine, newspapers, magazines and other advertising media could be held
liable independently.

Since the courts are unlikely to promote revolutionary changes in tort
liability for drug-related externalities, a free market system would be less
restrictive than either rationing or tax controls. This failure to provide suf-
ficient protection or deterrence could lead Rawlsian contractors to reject
free market controls. On the other hand, many business interests would
support a free market because of the impetus it would provide to drug sales.
Without current excise taxes on alcohol products, alcohol prices would plunge
and sales would increase. Alcohol consumption in the United States is below
European levels and is, per capita, only about half of what it was in 1850.210
Potential for major sales increases also exists for tobacco, if not taxed, and
for cocaine, cannabis and opium, if not prohibited. The change would benefit
farmers of corn, tobacco and marijuana, brewers, vintners and distillers,
chemical producers, packagers, shippers and drug retailers. For non-com-
merical reasons many people would support a free market (or tax controls)
because it would eliminate police power over drug use, drug crusades, cor-
ruption in the drug control agencies, 21′ the scapegoating of drug users by
politicians and much of the life-support system for organized crime. Firmly
against free market controls would be the temperance interests, police, or-
ganized crime, medical associations and those agencies burdened by drug-
related damages.

Conclusion

Assume that the electorate is faced with a binding referendum in which
one of the five control systems described above must be selected as the
single mode for control of all psychoactive substances. Assume also that
the vote would take place after two years of debate, lobbying and education.
Having eliminated in advance most people’s first choice, namely the status

21Mdtkeld et al., supra, note 102.
21’As one example of bureaucratic corruption in high places, Freemantle, supra, note 203 at
73, claims that Senator Joe McCarthy, an alcohol and morphine addict, was supplied opiates
by Harry Anslinger, head of the Narcotics Bureau.

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PSYCHOACTIVE DRUGS

quo, what would be the results of this hypothetical vote?212 Universal pro-
hibition and prescription would likely stand as the least preferred alterna-
tives. Among the three plausible contenders, a tax-licensing system would
probably be judged the best compromise. Tax controls are familiar from
their role in the control of tobacco and alcohol and they are superior to
rationing on a number of grounds including greater sensitivity to personal
preferences, less need for bureaucratic apparatus and a capacity to serve a
compensatory function. Furthermore, unlike free market controls, tax con-
trols do not leave social protection needs to the uncertain premises and
vagaries of private law initiatives.

Whatever the exact outcome of such a public choice operation might
be, the salient feature of the exercise is that it would force individuals to
include their own drug use and drug abuse in their political calculations. 213

212Schofield, supra, note 78 at 186, whose research shows most of the British electorate
opposed to any change in the law, identifies the same basic drug control models as discussed
herein. Schofield, however, does not explore these alternatives in depth but merely suggests
some minor changes concerning lesser penalties for marijuana offences. If cultural inertia
actually constitutes a major obstacle to any legal reform, why go to the bother of besting that
high threshold merely for the sake of gaining a minor advantage? In other words, major,
comprehensive reforms may not incite much more opposition than minor, piecemeal legal
changes.
2t3Schroeder, supra, note 5 at 10-11, writes of the drug problem “dilemma” wherein any
drug can “be portrayed as ‘good’ or ‘bad’, or… as ‘hard’ or ‘soft’, depending on which of its
properties are emphasized by authorities”, yet the public “has arbitrarily declared some drugs
as acceptable and others as unacceptable, without reference to their effects on mental and
physical health.” This unwarranted and unjust discrimination is the major problem faced in
the “drug problem” field. Wisotsky, supra, note 164 at 1422-23, does not blame the public but
rather governments which have successfully avoided any serious popular criticism of drug
policy: “[s]even decades of government propaganda about the evils of drugs have deprived the
public of the power of critical thought respecting drugs, or cowed it into silence … . As a
result, criticism of drug prohibition is confined almost entirely to academicians, a group notably
lacking the political clout necessary to precipitate a public rethinking of the issue.”