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33 Rutgers L. Rev. 607 (1980-1981)
Drug Use and the Rights of the Person: A Moral Argument for Decriminalization of Certain Forms of Drug Use

handle is hein.journals/rutlr33 and id is 613 raw text is: SYMPOSIUM ON PUNISHMENT: CRITIQUES AND JUSTIFICATIONS DRUG USE AND THE RIGHTS OF THE PERSON: A MORAL ARGUMENT FOR DECRIMINALIZATION OF CERTAIN FORMS OF DRUG USE David A.J. Richards* I. INTRODUCTION Laws prohibiting the use of certain drugs are major targets of th6 general liberal critique of overcriminalization of voluntary acts, a cri- tique that has focused on the criminalization of consensual adult sex- ual relations1 and on voluntary decisions to die 2 as well as on the use of drugs.' In contrast to their success elsewhere,4 advocates of decrim- ©Copyright reserved 1981 by David A.J. Richards. * Professor of Law, New York University. A.B., Harvard University, 1966; D. Phil., Oxford University, 1970; J.D., Harvard University, 1971. This essay profited from conversations with Donald Levy of the Brooklyn College Philosophy Department. Research assistance was ably given by N.Y.U. law students Jon Dubin and Linda Ecksmith; another N.Y.U. law student, Lynn Paltrow, rendered extremely dedicated and in- telligent research and analytical assistance. 1. See, e.g., Richards, Commercial Sex and the Rights of the Person: A Moral Argument for the Decriminalization of Prostitution, 127 U. PA. L. REV. 1195 (1979) [hereinafter cited as Richards, Commercial Sex]; Richards, Sexual Autonomy and the Constitutional Right to Privacy: A Case Study in Human Rights and the Unwritten Constitution, 30 HAsTINCs L.J. 957 (1979) [hereinafter cited as Richards, Sexual Autonomy]; Richards, Unnatural Acts and the Constitu- tional Right to Privacy: A Moral Theory, 45 FORDHAM L. REv. 1281 (1977) (homosexuality) [hereinafter cited as Richards, Unnatural Acts]. 2. See, e.g., Richards, Constitutional Privacy, the Right to Die, and the Meaning of Life: A Moral Analysis, 22 WM. & Msa L. REV. 327 (1981) [hereinafter cited as Richards, Constitutional Privacy]. 3. See, e.g., E. BRECHER, Licrr AND ILLICIT DRUGS (1972); J. KAPLAN, MARIJUANA-THE NEW PROHIBITION (1970); T. SzAsz, CEREMONIAL CHEMISTRY (1974); N. ZINBERG & J. ROBERTSON, DRUGS AND THE PUBLIC (1972). 4. Decriminalization advocates have been successful in obtaining the elimination of laws against abortion and contraception. See, e.g., Carey v. Population Servs. Int'l, 431 U.S. 678 (1977); Roe v. Wade, 410 U.S. 113 (1973); Eisenstadt v. Baird, 405 U.S. 438 (1972); Griswold v. Connecticut, 381 U.S. 479 (1965). The United States Supreme Court recently upheld a decision that the constitutional right to privacy did not extend to consensual adult homosexuality. See Doe v. Commonwealth's Attorney for Richmond, 425 U.S. 901 (1976), aff'g mem. 403 F. Supp. 1199 (E.D. Va. 1975) (three-judge court). There has been, however, a gradual movement to- ward decriminalization of consensual sodomy by legislative repeal. A recent overview indicates that 21 state legislatures have decriminalized. Rivera, Our Straight-Laced Judges: The Legal Position of Homosexual Persons in the United States, 30 HASTINcS L.J. 799, 950-51 (1979).