Recently there have been a number of articles advocating the decriminalization of marijuana and all illegal drugs.  The justification has been that the drug war has been unsuccessful controlling drugs in this country and breeds contempt for the legal system. The belief is that taxes can be used to modify behavior while being a revenue source. Drug use can be a slippery slope that can progress from recreational use to occasional use, then frequent use leading to addiction and a degenerate life style, and even death. It is not surprising that no one who has had a relative or close friend travel this destructive path is advocating decriminalization or legalization of any drugs. It is also a hidden truth that taxes are notorious for non-achievement of desired behavior changes and unintended consequences. If marijuana is decriminalized then the same logic can and should be used to roll back the profusion of other personal behaviors and activities regulated by the state today.

Wasn’t the United States of America founded on the principles of freedom and liberty over 225 years ago?  Individual freedom and liberty allowed any personal action as long as it did not adversely impact any other person. Actions are not dictated by any moral, racial, or religious creeds, but are legislated by our Congress for our “common good.”  Over time our legal system has grown to regulate and restrict personal actions, personal consumption of legal and illegal products, and behaviors that affect our personal health.  The question is whether we have gone too far trying to implement social engineering with restrictions and taxes on morals, actions, or sins?

What is the role of the government vis-a-vis individual liberty and behavior? “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”  The state should protect the liberty of individuals to act as they wish as long as they do not infringe upon the liberties of others. Freedom is the right to act according to ones will without being held up by the power of others. From a philosophical point of view, it can be defined as the capacity to determine your own choices. Libertarianism seeks to maximize individual libertyand minimize or even abolish the state. American laws struggle to find the right balance between individual freedom and the “common good.”

There are many types of activities and behaviors regulated by the state today.  There are a number examples of regulations designed to protect us from ourselves such as seat belts, motorcycle helmets, and bicycle helmets. There are also regulations to control our personal behavior for our own good such as personal hygiene, who with and where we can perform sexual acts, and what foods and where we can eat. Finally there are numerous regulations concerning “sinful” acts such as consuming alcoholic beverages, smoking of tobacco products, and personal use of recreational drugs. All of these activities and behaviors are personal choices that only impact ourselves, since other laws regulate potential interactions with others.  

There are degrees of regulation and restriction, both positive and negative to affect our personal behavior. The fear of negative consequences is the most prevalent form of regulation such as making the behavior illegal and penalizing breaking the regulation with monetary penalties or restricting future behavior as the biggest threat. A common negative restriction is requiring a certain age, usually 18, as a prerequisite such as driving, drinking, or contractual obligations.  Another technique employed is to uses taxes to interject affordability into the behavior decision such as increasing taxes to discourage excessive drinking or smoking. Positive behavior modification is employed with constant reinforcement of the positive consequences associated with following the regulations such as statistical proof that helmets prevent head injuries and seat belts prevent automobile deaths.  It has been statistically proven that fear of negative consequences is the strongest of these behavioral incentives.

A better solution may be to decriminalize behavior by removing criminal penalties but retain ability to regulate. A society may come to the view that an act is not harmful, should no longer be criminalized, or is otherwise not a matter to be addressed by the criminal justice system.  Decriminalization removes criminal charges from an action, but leaves intact associated laws and regulations. Decriminalization reflects changing social and moral views, and focuses on treatment. The term “victimless crime” refers to infractions of criminal law without any identifiable evidence of an individual that has suffered damage in the infraction. Examples of subject matter which have been the subject of changing views on criminality over time in various societies and countries include: prostitution, homosexuality, and drug use. While decriminalized acts are no longer crimes, they may still be the subject of regulation; for example, the licensing and regular medical testing of sex workers, or a monetary penalty in place of a criminal charge for the possession of a decriminalized drug.  

Meanwhile behavior modification with taxes has been ineffective influencing behavior. Taxes are sold as means to discourage behavior, but cost is rarely the critical decision factor. Alcohol and tobacco taxes are not designed to impact consumption, but rather to raise revenue, which is felt most by the lower and middle classes. In most cases the amount of revenue projected is rarely achieved and, all too frequently, the revenues are diverted to other purposes than originally promised.  Alaska, Zurich, and Amsterdam all decriminalized drugs for small users, but found consumption grows and addicts multiply.

The best thing this country could do would be to repeal all the personal behavior crimes and let individuals be responsible for their actions and the impact of their actions:  

·    Define the age of 18 as the entry into adulthood with all the associated responsibilities that come with that milestone such as adult penalties for misbehaving; 

·    Repeal all laws on personal behavior for adults (smoking, helmets, seat belts, etc.); 

·    Legalize all drugs for anyone over 18 years of age;

·    Repeal all sin taxes (tobacco, alcohol, drugs, etc.) as inefficient at influencing behavior, ineffective incenting desirable behavior, and discriminatory;

·    Implement positive behavior modification techniques to reward desired behavior, such as health insurance discounts to reward healthy lifestyle;

·    Only punish bad behavior if it impacts others. 

However there is no reason that all taxpayers must subsidize these personal choices and their consequences. In order to make this change effective, negative behavior consequences must also be implemented by removing eligibility to all government safety nets such as food stamps, welfare, and health care. New Hampshire says it best, “Live Free, Or Die!”

David Coughlin

Hawthorne, NY