Drug users as moral agents       

Increasingly, the drug crisis is presented as a health care crisis rather than a criminal one, particularly by proponents of decriminalization. After all, much of the crisis began with prescription opioids in a health care setting. The health care system helps treat drug addiction, particularly medical side effects, overdoses, and various treatment options. In many ways, the issue is related to health care because of the extensive health and social concerns involved in drug use and abuse. But does that mean we should do away with the criminal element entirely?

To present the drug crisis as solely a health care issue ignores the fact that individuals are moral agents, capable of making choices and responsible for those choices. They are not simply victims of their circumstances who cannot be held accountable for their actions. There are often circumstances that lead to wrongdoing such as addiction or other medical or mental health factors, but that does not negate responsibility for one’s actions. If drug use was solely a health care issue, it would make sense to remove any criminal law restrictions on drugs. However, since it is not just a health care issue, there remains reason for criminal penalties.  

Choice in Drug Addiction

While initial use of drugs may be a choice, subsequent addiction is not a choice in the same way. Even initial drug use might not be a clear choice if a person is taking opioids for pain and becomes addicted to those painkillers.

Drug addiction is hard to overcome, no matter how badly a person wants to change. There are scientific explanations for this. A single dose of many addictive drugs produces a protein called iFosB, which builds up in the body’s neurons. Each time the drug is used, as more iFosB accumulates, it eventually flips a genetic switch causing changes to the brain that last long after drug use has stopped. This leads to irreversible damage to the body’s dopamine system and makes a person far more prone to addiction. As tolerance to the drug develops, a person needs more and more of it to get the desired effect. However, the brain also becomes sensitized to the drug, leading to increased cravings for the drug.

An addict does not just take drugs because of the sensation it provides or the discomfort of withdrawal. Instead, they will crave drugs before they go into withdrawal and even if there is no pleasure derived from use.[1]

At the same time, while recognizing the challenges of addiction, there is moral responsibility for the choice to use drugs or the lack of choice to escape addiction. Someone who is addicted to drugs or commits a drug-related crime needs help, but that does not negate their responsibility. The other side of a conversation about whether drug use is a choice is the choice to ‘get clean,’ to come out of addiction. Of course, changing behaviour will require help and support from the community, but drug addicts do have agency to make such choices. And many want to make such choices, but simply need encouragement and help to do so.

When we deny moral accountability, we eliminate personal responsibility. Many in our society prefer to see people as victims of their circumstances. For example, two young men in the U.S. were acquitted (though later convicted on retrial) for killing their parents because they had been sexually abused by their parents as children.[2] In this instance, the stated reason for the crime is horrible for anyone to experience and is not a choice, but the brothers had a choice about their response. In other cases, people choose to act a certain way but do not want to accept the consequences. Adults who smoke cigarettes have successfully sued tobacco companies when they develop cancer. A woman who entered a hot-dog eating contest and began to choke on a hot dog attempted to sue the sponsor of the contest.[3] These people refused to accept the consequences that came because of their own choices.

Crime or Disease?

In “The Humanitarian Theory of Punishment,” C.S. Lewis talks about how the “humanitarian” approach treats crime like a disease or as a result of a person’s circumstances. When crime is not viewed as moral wrongdoing, however, it is impossible to pardon it. This makes it impossible for the offender to make amends and seek change because he has a disease that he is powerless to fix. Now, as we’ve noted, there is something unique about drug use, which may or may not involve an explicit initial choice to use drugs and which addicts may desire to escape. It’s not a question of either punishing the wicked or tending the sick, a dichotomy which Lewis tears down. Instead, maybe both can be involved – punishment for the purpose of renewal.

Although Lewis’ essay addresses crime generally (and doesn’t mention drug use), it helps to see drug use through this lens as well. As Lewis writes, “How can you pardon a man for having a gumboil or a club foot? But the Humanitarian theory wants simply to abolish Justice and substitute Mercy for it.” If we simply treat drug use as a health care issue, equating it with club feet or cancer, that leaves no agency for the addict to escape his addiction and no possibility of pardon for the mistakes he has made. Shame is often associated with drug addiction. But if we treat it like a disease that someone has no control over, the addict has no agency to overcome that shame. We need to help people see that they can (and should!) overcome harmful behaviour that is ruining their lives. To give someone that hope of renewal and escape is to treat them as a person made in God’s image, punishing what is wrong, but also providing opportunity for change.[4]

The “humanitarian” approach to punishment eliminates the concept of ‘Desert;’ namely, that the punishment should fit the crime. And Lewis insists that there must be just desert for wrongdoing. But that raises the question of why – and how – drug use should be treated as a crime. Does it actually merit punishment?    

Societal Responses

Advocates of decriminalizing drugs often point to the need to destigmatize drug use. Because agency remains when it comes to drug use, however, stigmatizing drug use is a worthy goal. As one journalist points out, “We, as a society claim we don’t like to stigmatize or judge and say shame is bad. But this is to act foolishly: shame and stigma are how we show errant members of society that they need to reform their ways and change for the better.”[5] Stigmatizing drug use will hopefully deter some Canadians from using drugs. We stigmatize the very things that we deem harmful.

Take, for example, smoking, which has been increasingly stigmatized in recent years, effectively reducing smoking habits in Canada. In fact, warning labels will be required on individual cigarettes later this year.[6] Warning labels on cigarette packs in the past have led to reduced smoking rates and have hindered youth from starting smoking. Such an approach is stigmatizing as well.

At the very least, there should be a cultural and societal stigma against drug use, encouraging addicts to get clean and disincentivizing others from getting started in the first place. It is important to continue to tell drugs users that what they are doing is harmful, not to mention illegal, rather than simply allowing them to continue in their addiction. The criminal law is one way of signaling what is deserving of prohibition and punishment.

Criminalization

Beyond stigmatizing drug use, should the government create criminal penalties for drug use? What is the government’s role in all this? From a biblical perspective, the role of the government is to administer justice. Because of the depravity of mankind, God has ordained kings, princes, and civil authorities.[7] He wants the world to be governed by laws and statutes, in order that the lawlessness of men might be restrained and that everything be conducted in good order. As we read in Romans 13:3-4, “For rulers are not a terror to good conduct, but to bad. Would you have no fear of the one who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain. For he is the servant of God, an avenger who carries out God’s wrath on the wrongdoer.”

Considering this, the government has a role in justice as it relates to drug use and addiction because of its relation to public safety. Drug use has public safety implications because it is so closely connected with other criminal activity. Drug use and addiction has a negative impact, not just on the individuals that use drugs, but on their families and communities as well. A recent American study also points to more industrial accidents, more injuries, and greater absenteeism among employees who use marijuana.[8] BC has seen skyrocketing rates of violence associated with drug use.[9] Since public justice is the role of the civil government, the government has a role in cleaning up crime. This means, at the very least, not stimulating drug use, but also preventing it.

But aside from the public safety elements, the use of illicit drugs should continue to be illegal. Part of this is what I noted above about the criminal law indicating what is acceptable and what is unacceptable conduct. The law, in many ways, is a teacher that influences actions. Charles Colson writes, “We should not be utopian about government’s ability to restrain sin; its ability is, of course, limited. Nonetheless, we are to work to make it as effective as possible.”[10]

As I thought about a policy response to drug use, various other issues arose as possible comparisons. Should criminalizing drugs be equated with criminalizing alcohol? Or should the government also ban other behaviours that it deems harmful? Or maybe drug use should only be illegal in public, but not in private? But the closest comparison I landed on is the issue of pornography. Much of the pornography available in Canada today has severe negative impacts on those viewing it, as well as on their families and communities. It is contrary to God’s law and violates human dignity. There is an element of addiction that changes the brain and makes it harder to quit. Initial exposure may or may not have been a choice. It can also lead to a variety of other criminal acts. Although it is not seen as a criminal problem in Canada, it ought to be. I would argue that each of these factors apply to the use of illicit drugs as well and justifies criminalization. (Where this comparison breaks down is the fact that there may be legitimate uses for some drugs in the proper context, such as painkillers, while the same is not true of pornography). Nevertheless, the scope of the problem and its effects on individuals as well as on communities suggests a need for legal prohibition.

Finally, there is a practical element to criminalization of drugs. Legal researcher Paul Larkin writes that “The cliché that ‘We can’t arrest our way out of this [predicament]’ is matched by the reality that ‘[w]e can’t treat our way out of it, either, as long as supply is so potent and cheap.”[11] Criminalization is part of the solution to the problem. But this also gets to the point that the penalty must also be appropriate, a ‘just desert’ where the punishment fits the crime. The final article of this series will consider possible ways forward and how Canadian governments can make the punishment fit the crime.

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[1] Norman Doidge, “Acquiring Tastes and Loves: What Neuroplasticity Teaches Us About Sexual Attraction and Love” in The Social Costs of Pornography: A Collection of Papers, eds. James R.Stoner, Jr., and Donna M. Hughes (Princeton: Witherspoon Institute, 2010), 34.

[2] Colson, Justice That Restores, 62.

[3] Colson, Justice That Restores, 63.

[4] C.S. Lewis, “The Humanitarian Theory of Punishment,” Res Judicatae, 225.

[5] Adam Pankratz, “Maybe B.C.’s drug addicts should have to face shame and stigma,” National Post, Feb. 6, 2023.

[6] Adam Miller, “Cigarette warning labels are about to get even harder to ignore in Canada,” CBC News, May 31, 2023.

[7] Belgic Confession, Article 36.

[8] John Howard et al., “Cannabis and Work: Implications, Impairment, and the Need for Further Research,” Centers for Disease Control and Prevention, June 15, 2020.

[9] Aaron Gunn, “Canada is Dying,” YouTube, May 24, 2023. See also Kim Bolan, “Inside the battle by drug gangs for control of Vancouver’s Downtown Eastside,” Vancouver Sun, Aug. 9, 2021.

[10] Colson, Justice That Restores, 47.

[11] Paul Larkin, “Twenty-First Century Illicit Drugs and Their Discontents: Methamphetamine – the Downs of Ups, or Tweaking the Night Away,” The Heritage Foundation, Dec. 21, 2023.