The Problems with Paternalism
As we have explored, the New Prohibitionists are shaping cannabis policy in influential and worrying ways.
Cannabis’s status as the most widely used and extensively sanctioned illegal drug globally is based on policies driven by ethnic animus. Historically, these approaches served colonial and neocolonial goals. Internationally, the War on Drugs, focused mainly on cannabis, has undermined human rights wherever it has been waged. As cannabis reforms take root around the world, adaptations by governments where cannabis is not yet legal often de-emphasize public safety by investing in public health. For example, public health was identified as a focus of the first decriminalized cannabis policy in the Netherlands. Today, more than 30 countries implement models of drug decriminalization based on public health interventions and drug treatment.
The traditional view on drugs and drug policy is based on paternalism. Paternalism here refers to the idea that the state knows what is best for its citizens and, thus, makes policy based on this privileged view. As Newhart and Dolphin point out: the power to label people as subject to institutional control is inherent in the organizations, agencies, and professions that constitute the “troubled persons industry.” With regard to cannabis, even in an era of post-prohibition, paternalism is sustained by some doctors, addiction treatment counselors, and others associated with efforts to frame cannabis “addiction” as something that requires “recovery” through abstinence. This flies in the face of a century of reports to, by, and commissioned for, governments around the world. In place of criminalizing, stigmatizing, and prohibiting cannabis, these reports advocated little to no cannabis regulation.
As we have argued, reforming cannabis laws often expands the number of laws as well as the mechanisms and systems of control. These efforts often involve attempting to constrain commercial cannabis by limiting licenses, restricting access, and prohibiting advertising and marketing. Uruguay and Malta offer some useful examples of this impulse, although it exists everywhere legal cannabis exists.
In a 2017 publication, Transform lauded the approach taken in Uruguay. The government was “motivated by concerns over insecurity and public safety, and are therefore aimed at reducing criminality and violence by depriving organised crime…” The strict control of the market will “avoid the pitfalls associated with a commercialised market.” Unfortunately, these pitfalls are never defined or explained. In both Uruguay and Malta, it means registering with the government if you want to consume cannabis legally.
Oh, brave new world!
Perhaps this impulse is related to exaggerated fears about placing profits ahead of social, environmental, or health concerns. Governments have an interest in supporting citizens to make good decisions about their health and well-being. Too often, though, It sounds like paternalism. There may be a role for medical paternalism when people, as a direct result of drug use, are at immediate risk to themselves or others. This almost never applies to cannabis. A profound failure by those seeking to update prohibition is the unintended consequences of enshrining coerced public health within liberal democracies.
Joseph Heath (2020: 307-308) offers a view on the ethics of public administration that is deeply skeptical of the notion that a truly democratic state can make better choices for people than they can make for themselves. He writes:
This sort of agency relation, as we have seen, is fraught with moral hazard. Even if the state is right about where the individual's best interests lie, if agents of the state fail to act diligently to advance that interest, the costs are borne primarily by the individual, not the agent… [this should] encourage a certain modesty about the ability of the state to improve people's lives… With a paternalistic intervention, not only is the state substituting its own judgment for that of the individual when it comes to determining the appropriateness of some outcome, but because the individual rejects that outcome, the state will often have to employ its own agents to bring it about….
Thus, in one passage, it is apparent how paternalistic public health inevitably results in the re-emergence of public safety practices - widely acknowledged as costly, foolish, and racially disproportionate. Using the language of reform, new forms of intervention and control perpetuate the state's problematic history of punishing drug possession.
This is not responsible reform.
Legalization has not yet resulted in the sort of dire societal harm that could justify continuing to limit and control cannabis access. The battle for social equity is in part a battle for societal acceptance of people who use cannabis. They need not be treated as some bizarre subculture requiring special monitoring, dedicated abstinence programming, or policies shaming them from consuming a substance used by people around the world for millennia.
As Heath (2020: 307-308) concludes:
The attractive thing about letting individuals pursue their own conception of the good is that they can be relied on to exercise a reasonable degree of diligence, not just in formulating their ends, but also in bringing them about….It may therefore be better on the whole to let an individual engage in the diligent pursuit of an imperfect conception of the good than to try to impose on her a better conception of the good….
As long as paternalism is prevalent among drug reform organizations, the idea that cannabis reform could lead to other sorts of criminal justice reforms is a conceptual non-starter. Meaningful decriminalization and responsible regulation of cannabis and other drugs demand that the exercise of state authority is minimal, justified, and serves the goals of freedom from violence and security from the state. As we have shown, coercion seems to be a feature of legal cannabis regimes, not a bug.
As is increasingly apparent, constraining the commercial cannabis market means supporting the illicit market. It means supporting unregulated cannabis grows which cause unchecked environmental damage.
Claims of support for social equity initiatives in legal and regulated cannabis markets, appear to be hypocritical and politically motivated. Those who decry commercial cannabis based on paternalistic public health on the one hand, and then laud the growing number of Black and Brown cannabis business owners on the other, are simply not credible.
There are reasonable fears about how increasing the use of cannabis will impact people, communities, and societies. Just as the federal government in Canada is undertaking a review of the Cannabis Act this year, laws governing the production, sale, and use of cannabis will continue to be revisited around the world. Perhaps, what is needed is an effort to “undo” many of the bad ideas that currently guide drug policy. The first is the paternalistic idea that some drugs are inherently better, more worthy, and less dangerous than others.
