Racial Justice Requires Ending the War on Drugs
Brian D. Earp
, Jonathan Lewis
, and Carl L. Hart
Bioethicists and Allied Professionals for Drug Policy Reform
Dublin City University;
Historically, laws and policies to criminalize drug use or possession were rooted in explicit
racism, and they continue to wreak havoc on certain racialized communities. We are a
group of bioethicists, drug experts, legal scholars, criminal justice researchers, sociologists,
psychologists, and other allied professionals who have come together in support of a policy
proposal that is evidence-based and ethically recommended. We call for the immediate
decriminalization of all so-called recreational drugs and, ultimately, for their timely and
appropriate legal regulation. We also call for criminal convictions for nonviolent offenses
pertaining to the use or possession of small quantities of such drugs to be expunged, and
for those currently serving time for these offenses to be released. In effect, we call for an
end to the “war on drugs.”
race and culture/ethnicity;
A series of prominent killings of unarmed Black peo-
ple by police in spring 2020 has renewed calls to
address systemic racism in the United States and
around the world. Among those killed was Breonna
Taylor, whose home was wrongfully entered by offi-
cers without warning as part of a drug-related search.
As we will detail, Black people in the United States
are disproportionately targeted, arrested, and incarcer-
ated for crimes related to non-medical drug use, and
this is one area where social reform is urgently
needed. We are a group of bioethicists, drug experts,
legal scholars, criminal justice researchers, sociologists,
psychologists, and other allied professionals (see
Appendix for details) who have come together in sup-
port of a policy proposal that is evidence-based and
ethically recommended. We call for the immediate
decriminalization of all psychoactive substances cur-
rently deemed illicit for personal use or possession,
and, ultimately, for their full legalization and careful
regulation. In effect, we call for an end to the “war
In principle, the “war on drugs”aims to protect
people from harm and promote public health. In
practice, it has worsened many aspects of public
health while inordinately harming certain racialized
communities (Mauer and King 2007). In addition, the
“war on drugs”has fostered a condescending moral-
ism that conflates drug use with violence or bad char-
acter and casts drug users—especially Black and
Hispanic drug users—as criminals-in-waiting who
deserve to be punished (Mallea 2014). Indeed, the
very language of a “war”can work to reinforce “a set
of beliefs and values that stress the use of force and
domination as appropriate means to solve problems
and gain political power”(Kraska and Kappeler 1997).
In contrast to this approach, we argue for ending the
drug war and investing in the most heavily affected
communities. If managed carefully, this shift in policy
will not only improve public health, reduce crime and
recidivism, lower unemployment and poverty rates,
and save governments large sums of money (which
could be better spent; see Box 1); it will strike a neces-
sary blow against racial injustice.
The context here is instructive. Historically, drug
laws and enforcement have reflected and perpetuated
explicit racism, including early legislation against
ß2020 Taylor & Francis Group, LLC
CONTACT Brian D. Earp firstname.lastname@example.org Philosophy and Psychology, Yale University, New Haven, CT, USA.
See appendix for full author details.
By “decriminalization”we mean that all relevant jurisdictions should adopt de jure decriminalization so that criminal penalties for the personal
possession and use of small amounts of currently illicit drugs are removed by an act of legislation or judicial decision. This is in contrast to merely de
facto decriminalization, whereby the suspension of criminal penalties depends on local, contingent administrative or law enforcement practices, such as
the non-enforcement of the relevant laws and/or referral of offenders to treatment or education programs (Single, Christie, and Ali 2000; Hughes et al.
2016). Thus, although we will argue that individuals struggling with substance-related disorders or other drug-related difficulties should be offered
treatment and education, such supportive efforts should be handled through social care institutions that are not tied to the criminal justice system.
THE AMERICAN JOURNAL OF BIOETHICS
Chinese “opium dens”and Mexican “reefer madness”
(Musto 1999; Manderson 1999; Vagins and McCurdy
2006; Provine 2007; Fellner 2009; Campos 2012;
Lopez 2014; Luna 2016; Netherland and Hansen 2016;
Rosino and Hughey 2018). As we will discuss, the
harmful effects of prohibition continue to be espe-
cially burdensome for certain racialized groups. Black
and Hispanic men, in particular, are subject to height-
ened scrutiny in relation to suspected drug-related
activities, for example, during “investigatory”traffic
stops (Weitzer and Brunson 2015; Epp et al. 2017).
They are more often met with police use of force,
controlling for potentially confounding variables (see
Fryer Jr. 2019). They are more likely to face arrest,
prosecution, conviction, and incarceration (Mauer and
King 2007; Fellner 2009; Mitchell and Caudy 2015;
Koch, Lee, and Lee 2016; Nellis 2016; Omori 2019).
Moreover, when convicted, they face harsher criminal
penalties (Turner and Dawkar 2014; TSP 2018;
These discriminatory practices exacerbate vulner-
abilities within affected communities, including those
mired in structural disadvantages tracing back to slav-
ery and Jim Crow—with persisting inequities that are
still widely underestimated (Small 2001; Nunn 2002;
Clear 2007; Alexander 2010; Del Toro et al. 2019;
Onyeador et al. 2020). It has become evident that
piecemeal reforms are not enough to address these
problems. Rather, what is needed is a paradigm shift
in how we think about drugs in society. As we will
argue, even if racial discrimination in drug arrests,
prosecutions, and sentencing could somehow be elimi-
nated, drug prohibition itself would remain unjust
and harmful on balance (Huemer 2007; Fellner 2009).
Our proposal to decriminalize and subsequently
legalize non-medical drug use applies especially to
cannabis, as the benefits and risks of this drug and
associated policy options have been the most
exhaustively researched. Cannabis is, on the whole,
much less harmful to users and others than alcohol,
tobacco, and a range of prescription medications that
are not prohibited despite the greater potential for
dependence and abuse (Nutt, King, and Phillips
2010; Anomaly 2013). But changing the policy on
cannabis does not go far enough. In our view, the
deep-seated racial injustices associated with current
drug laws and their biased enforcement, the harms
associated with illegal drug markets that thrive
under prohibition, and the violence both within
and between communities that such markets engen-
der, call for a more comprehensive approach.
Accordingly, we are in favor of the ultimate legaliza-
tion and careful regulation of MDMA (ecstasy), psy-
chedelic drugs such as LSD and psilocybin, heroin
and other opioids, methamphetamine, and powder
and crack cocaine—that is, all drugs used for non-
medical purposes that are currently deemed illicit
(for related discussions, see e.g., Abbott et al. 2020;
Hoss 2019; Marlan 2020).
The personal use and possession of small quantities
of these substances, we argue, should be entirely
Box 1. Saving money and reinvesting in communities.
Drug prohibition harms communities because it is a poor use of limited public resources. For communities that lack sufficient public investment
in education, health care, social housing, or infrastructure, drug prohibition diverts public resources away from more socially pressing and worth-
while causes. In the U.S., it is estimated that state and local annual expenditure on drug prohibition amounts to $29 billion, with an additional
$18 billion of federal spending (Miron 2018). Meanwhile, drug legalization could yield $58 billion in federal, state, and local tax revenues, with up
to $106.7 billion in overall annual budgetary gains for federal, state, and local governments (Miron 2018).
In states that have legalized cannabis, education and public health programs, including substance use disorder treatment and drug use pre-
vention programs, have been the biggest beneficiaries of cannabis tax revenues (DPA 2018). For instance, in Colorado, the state distributed $230
million to its Department of Education between 2015 and 2017 (Colorado Department of Education 2018). In 2019, Washington State collected a
total of $390.3 million from cannabis excise and sales tax, with $188.3 million distributed to health care programs and $9.5 million to substance
use disorder, education, and prevention initiatives (Washington State Liquor and Cannabis Board 2019). And as a part of California’s Adult Use of
Marijuana Act (Proposition 64), the California Community Reinvestment Grants (“CalCRG”) program has allocated $28.5 million of the revenues
from cannabis legalization to support restorative justice projects (with an additional $30 million planned for 2021, $40 million for 2022, and $50
million for 2023), focusing on job placements, mental health treatment, substance use disorder treatment, legal services to address barriers to
societal reentry, and access to medical care (California Community Reinvestment Grants Program 2019).
These states have shown that they are able and willing not only to allocate large percentages of the saved funds toward social goods includ-
ing schools, health care, and infrastructure (DPA 2018), but also to invest in community-building projects for communities that have been dispro-
portionately affected by the “war on drugs,”mass supervision, and mass incarceration. But we need to be clear. To fully rebuild those
communities that struggle with the greatest concentration of substance use disorders, and which suffer from the cumulative, collateral effects of
unjust drug enforcement, will require public and charitable expenditures that significantly exceed the potential savings from ending prohibition
in any given municipality or state.
Responsibly reinvesting these savings is a minimum first step, not a final answer.
Potential federal enforcement savings are unlikely to result in a
significant reduction in the size or budgets of the many agencies
involved that are not exclusively focused on drug enforcement, and
specialized drug enforcement agency funding is likely to be
reprogrammed to regulatory enforcement.
2 B. D. EARP ET AL.
excluded from the purview of criminal law (see foot-
note 1 for details). Policymakers should pursue this
first step—decriminalization—without delay. Although
this step alone would, at least in principle, mitigate
some of the harms and injustices we have mentioned,
the shift away from prohibition would of course need
to be accompanied by supportive policies and initia-
tives to minimize the risks and potential negative
externalities that might be associated with such a tran-
sition. In particular, while the groundwork for a fully
legalized and regulated system is being developed, a
combination of decriminalization and harm reduction
akin to the Portugal model (see below) is
The bottom line, however, is that if and when
problems with substance use or misuse arise, these
should be approached through healthcare programs
and social support, not prison time. Moreover, once
the groundwork for legalization has been laid, the
production, storage, handling, distribution, sale, and
supply of drugs currently deemed to be illicit should
be legally regulated like other drugs in the U.S. and
the Anglosphere in general, such as alcohol, nicotine,
and prescription medications.
As a part of this process, policymakers should dir-
ectly involve current and former drug users and their
social networks in the revision of relevant policy,
while implementing community-building programs
based on coherent, long-term strategies that meet the
needs of those affected (for details and further discus-
sion, see Zigon 2019). We suggest that policymakers
also develop racial and ethnic impact statements for
any new regulations or changes to existing laws
Two final points of clarification. First, it is not our
aim to argue either for or against the prudence or
permissibility of personal use of drugs for non-med-
ical purposes. Thus, in advocating for the proposed
policy changes, we are not making any specific nor-
mative commitment as to whether individuals should
or should not use any of the aforementioned drugs.
More importantly, we do not suggest that all currently
illicit drugs should be readily available to any poten-
tial consumer: the precise modes of access, and bar-
riers to accessibility, must depend on the drug and its
particular profile of benefits and risks as it would
realistically be used under different conditions.
Accordingly, it is possible that some drugs should be
heavily regulated, with their sale or administration
requiring, for example, a special license, and/or some
individuals who are at an especially high risk of harm
being dissuaded by appropriate means (e.g., a person
with severe psychosis seeking access to a high dose of
psilocybin; see Smith and Sisti 2020). The question of
how to devise and implement such regulatory policies
in order to minimize harms and achieve successful
compliance is beyond the scope of this paper.
Nevertheless, we maintain that many, if not most,
of the negative outcomes that are associated with
so-called recreational drug use and dissemination in
society are either produced or made worse through
prohibition (Ostrowski 1991; Barnett 2009; Hart 2013;
Todd 2018; Hart 2020).
Second, our paper should not be read as a general
defense of the rights of adults to access, possess, and/
or use drugs currently deemed illicit nor is it an
attempt to argue for the constitutional protection of
such rights enforced by the judiciary. Although we are
not, in principle, opposed to a rights-based approach
(for example, see Flanigan 2017), we intend our pro-
posals to be considered within the domain of demo-
cratic politics. This is, therefore, a call for citizens to
lobby their elective representatives, and for policy-
makers at state and federal levels to act by drawing up
and passing appropriate legislation, and/or ensuring
that these ideas are put on the ballot.
DRUG PROHIBITION HARMS USERS
The standard case for drug prohibition is that it pro-
tects people from using certain drugs, which are
thought to be harmful and inherently addictive.
However, the “war on drugs”is based on a misunder-
standing of the science of addiction (for example, it
discounts contextual factors contributing to harmful
Criminal penalties could still apply to certain activities, of course, such as
the unlawful sale or manufacture of certain drugs, even under a legalized
system. However, such a system would ensure that individuals are not
targeted with offenses relating to personal possession and use.
Obviously, further painstaking scientific research into such benefits and
risks will be necessary to inform relevant policies. Also note: the case of
heroin-assisted treatment in the Netherlands offers an example of the
ways in which different regulatory standards can be operationalized for
different substances (Blanken et al. 2010).
Recent events have proved encouraging. While our article was under
review in November of 2020, ballot measures were passed in the U.S.
state of Oregon simultaneously decriminalizing the possession of all
currently illicit drugs for personal use, legalizing the therapeutic use of
psilocybin, and expanding access to evidence-informed drug treatment,
peer support, housing, and harm reduction services. During the same
time period, voters in Arizona, Montana, New Jersey, and South Dakota
opted to legalize cannabis use, bringing the total to 15 U.S. states plus
the District of Columbia that have legalized cannabis. Non-medical
cannabis use is decriminalized in a further 15 U.S. states, as are all so-
called recreational drugs in Portugal as of 2001 (Greenwald 2009; Hughes
and Stevens 2010; Kreit 2010; Silvestri 2015).
THE AMERICAN JOURNAL OF BIOETHICS 3
drug use; see more generally Hart 2020; Pickard
2020), and it undermines the wellbeing of people who
use drugs (Barnett 2009; Room and Reuter 2012;
Csete et al. 2016), especially low-income racial and
ethnic minorities (Clifford 1992; Provine 2007).
Prohibition has not met its explicit aim of substan-
tially lowering the overall rate of drug use, partly
because severity-based deterrence, enforced by crimin-
alization of drug possession and use, has historically
been counterproductive (MacCoun 1993). Indeed,
there has been an increase in global consumption of
illicit substances over the last half century (Hall
Drug prohibition, like alcohol prohibition, is
criminogenic and can therefore be harmful to both
users and non-users; it can motivate users to commit
burglaries and robberies in order to purchase drugs; it
contributes to systemic violence; it is associated with
corruption in the criminal justice system; it diverts
law enforcement efforts away from solving predatory
crimes and arresting their perpetrators; and it can
contribute to a cycle of ongoing criminal behavior for
those who hold criminal records for trivial drug-
related offenses (Duke 2009).
When combined with criminalization, prohibition
harms users by exposing them to criminal sanction,
making them more vulnerable to arrest and incarcer-
ation—which itself poses health risks, including lower
life expectancy and inadequate access to treatment for
substance use disorders (Mauer and King 2007;
Barnett 2009; Csete et al. 2016). In addition, prison
conditions as normally found in the U.S. isolate peo-
ple from their friends and family, deprive them of
education and employment opportunities, exacerbate
mental health problems, and may make people more
prone to aggression (Petteruti and Walsh 2008;
Raphael and Stoll 2009; Harding 2019). These experi-
ences can generate lifelong personal, economic, and
social obstacles (including for those who only experi-
ence community supervision), such as barriers to
housing, employment, and welfare, as well as the
denial of voting rights (Western 2002; Clear 2007;
Petersilia 2009; Western and Pettit 2010; Natapoff
2020). Even the knowledge that one is subject to sur-
veillance and the heightened risk of incarceration can
be highly distressing (Miller and Stuart 2017; Del
Toro et al. 2019).
From a wider public health perspective, prohibition
undermines programs to reduce disease transmission
within drug-using communities (Bertram et al. 1996;
Rhodes and Hedrich 2010; WHO 2014; Csete et al.
2016; UN 2019), perpetuates unhelpful stigma sur-
rounding drug use (Ahern, Stuber, and Galea 2007;
Csete et al. 2016; Buchman, Leece, and Orkin 2017;
UN 2019), and discourages users from seeking med-
ical and non-medical help and support when needed
(Bertram et al. 1996; Ahern, Stuber, and Galea 2007;
Csete et al. 2016; Buchman, Leece, and Orkin 2017;
UN 2019). As such, drug prohibition imposes a multi-
tude of health-related costs. As we will discuss, it leads
to unsafe drug use and inadequate knowledge of the
real effects of drugs; it provides barriers to treatment
for substance-related disorders; it diverts funds away
from health organizations; it can threaten or block
access to the therapeutic benefits of certain drugs; and
it precludes the existence of “safe supply”programs
and health and safety regulations relating to presently
DRUG PROHIBITION HARMS COMMUNITIES
AND FEEDS SYSTEMIC RACISM
As we noted, drug prohibition and criminalization
reflect and perpetuate racial injustice in many contexts
(Musto 1999; Vagins and McCurdy 2006; Provine
2007; Fellner 2009; Campos 2012; Lopez 2014; Csete
et al. 2016; Luna 2016; Netherland and Hansen 2016;
Rosino and Hughey 2018). These policies have been
directly linked to police militarization and brutality
(ACLU 2014) and are among the important contribu-
ting factors to mass incarceration and mass supervi-
sion, especially of Black and Hispanic men (Sterling
2004; Alexander 2010; Pfaff 2017).
One of the most significant problems with prohib-
ition is that it leads to illicit markets: specifically,
unregulated markets that result in the production of
drugs of unknown and inconsistent purity, and, in
many cases, dangerous bulking agents and toxic addi-
tives, thus increasing rather than reducing the poten-
tial for harm (Barnett 2009; Csete et al. 2016; Veit
2018). It has also contributed to the production of
novel psychoactive substances in an attempt to cir-
cumvent existing laws. Accordingly, some jurisdictions
have responded with “catch all”laws against all psy-
choactive substances, including those not currently
Note: even if decriminalization did lead to an increase in the rate of
non-medical drug use among certain subgroups, it would still be an
effective policy if it reduced the overall harm to drug users and to society
at large (e.g., by reducing violence associated with illegal drug markets).
In this context, it should be noted that U.S. government drug policy has
primarily sought to undermine the capacity of drug suppliers to meet,
grow, and benefit financially from drug demand, so as to drive up drug
prices and lower drug purity. These measures were intended to make it
prohibitive to start using drugs while incentivizing treatment efforts by
making it harder for users to sustain their habits. However, drug
prohibition and enforcement have not achieved these ends. Rather, drug
prices have generally fallen or remained stable, drug potency has
increased, and drug use has steadily risen (Sterling 2006).
4 B. D. EARP ET AL.
prohibited, but these laws have a number of problems
(see, for example, Thorne Harbour Health 2017).
Prohibition also fails to deal with the background
conditions, such as deep-rooted economic deprivation,
that sustain illegal industries (Thoumi 2003), and the
associated exploitation of structurally vulnerable indi-
viduals by criminal gangs and drug cartels
(Wainwright 2016). Prohibition thus expands oppor-
tunities for crimes against drug users (Barnett 2009)
and sets the stage for violence within and between
criminal organizations, as well as violence against state
officials and innocent parties (Reuter 2009; Thoumi
2010; Csete et al. 2016).
Furthermore, reductions in
community safety and cohesion are exacerbated by
increased exposure to state-backed violence and law
enforcement, including dangerous raids by SWAT
teams and other forms of policing that disproportion-
ately target Black neighborhoods (Beckett, Nyrop, and
Pfingst 2006; ACLU 2014; Ghandnoosh 2015).
In the U.S., overall rates of illicit drug use and opi-
oid misuse among Black people are very similar to
those among White people (Figure 1). However, Black
people are more likely to be arrested, prosecuted, con-
victed, and incarcerated—with longer sentences—for
drug offenses (Vagins and McCurdy 2006; Mauer and
King 2007; Fellner 2009; Turner and Dawkar 2014;
Mitchell and Caudy 2015; Csete et al. 2016; Koch,
Lee, and Lee 2016; Nellis 2016; Lynch 2019; Omori
2019). Notably, sentencing disparities persist even
after accounting for baseline differences in criminal
history and crime severity (see, e.g., Steffensmeier and
Demuth 2000, 2001; Spohn 2000). Moreover, the pos-
session or distribution of drugs that are perceived to
be more commonly used by Black people (e.g., crack
cocaine) than by White people (e.g., powder cocaine)
have been associated with harsher sentences,
approximately similar harm/benefit profiles and chem-
ical constitutions (Vagins and McCurdy 2006; Lynch
and Omori 2018).
When we take into account the harms of incarcer-
ation to individuals that have already been mentioned,
initial race disparities in arrests, convictions, and
sentencing can lead to and maintain long-term
vulnerabilities and widening socio-economic dispar-
ities (Chin 2002; Clear 2007; Alexander 2010). In
turn, differences in socio-economic status can contrib-
ute to disparities in the effectiveness of substance
abuse treatment programs. Specifically, Black and
Hispanic people, who make up approximately 40 per-
cent of the admissions to such programs in the U.S.,
are roughly 4 to 8 percentage points less likely than
White people to complete treatment for substance-
related disorders largely due to socio-economic rea-
sons (Saloner and L^
e Cook 2013). Relatedly, because
substance abuse treatment programs in the U.S. are
linked to the criminal justice system (Kreit 2010),
Black and Hispanic adolescents are more likely, com-
pared to White adolescents, to be discharged from
treatment due in part to incarceration (Marotta
et al. 2020).
The incarceration of a parent can also have pro-
foundly adverse effects on children (Murphey and
Cooper 2015), effects that have clear racial implica-
tions given that Black children are far more likely
than children from other racial groups to have a par-
ent involved in the criminal justice system (Raphael
and Stoll 2009; TSP 2019). But public officials are
rarely held accountable for unjust enforcement tac-
tics—let alone the enforcement of unjust laws—
because they are protected by indemnification provi-
sions and the legal doctrine of civil immunity.
To address these more specific racial injustices, we
call for criminal convictions for nonviolent offenses
pertaining to drug use or possession of small quanti-
ties of non-medical drugs to be expunged, and for
those currently serving time for these specific offenses,
including those with drug-related parole and proba-
tion revocations, to be released. Failing that, criminal
records for these offenses should be, at the very least,
protected from judicial access in future criminal pro-
ceedings and decoupled from a person’s rights and
entitlements as a citizen. Furthermore, those who
would continue to hold a conviction on their record
for these offenses should receive retroactive ameliora-
tive relief under new decriminalization and/or legal-
ization laws (Yuen Thompson 2017).
Taking a wider perspective, we note that the U.S.
commitment to drug prohibition has not only influ-
enced drug policy worldwide (Csete et al. 2016; Coyne
Indeed, violence driven by conflicts within and among gangs and drug-
selling crews has, historically, constituted the majority of urban homicide
problems (Block and Block 1993; Kennedy, Piehl and Braga 1996;
Papachristos 2009), the bulk of which are intraracial (Braga and Brunson
2015). This suggests that the illegal drug market is a major contributing
factor to violence within Black communities.
The well-known federal sentencing disparity between powder and crack
cocaine offenses has only recently and partially been addressed by the
Fair Sentencing Act (FSA) of 2010, which reduced the statutory ratio from
100:1 to 18:1, respectively. In 2018, the First Step Act made this reform
The findings of Marotta and colleagues (2020) suggest that Black and
Hispanic adolescents were less likely to be discharged when they had
been referred by schools and other social institutions, indicating that
racial and ethnic disparities in treatment attrition could be mitigated by a
combination of de jure decriminalization and the enhancement of links
between substance abuse treatment programs and social institutions (see
THE AMERICAN JOURNAL OF BIOETHICS 5
and Hall 2017; Koram 2019; Piaggio and Vidwans
2019), but also contributed to human rights abuses
and other harms in countries along the illegal drug
supply chain (Villar and Cottle 2011; Paley 2014;
Piaggio and Vidwans 2019) while providing a power-
ful mechanism for increased U.S. “dominance”over
poorer countries of the Global South (Telles 2019).
There are also implications for gender equity in these
countries, as noted by a United Nations task force on
women: “Even when women may not directly partici-
pate in drug use or the drug trade, they are often
responsible for mitigating the associated risks for
themselves and for their families, and they are forced
to carry the double and triple burden of care when
families break apart and community life deteriorates”
(UN Women 2014).
Finally, the same harms and racial disparities in
U.S. drug enforcement persist in other countries.
For example, in England and Wales in 2016/2017,
Black people were almost nine times more likely
than White people to be stopped and searched for
drugs (Shiner et al. 2018, p. 15). They were more
likely to be arrested following a stop and search
than White people and more likely to be prosecuted
(ibid., p. 35). In addition, Black people were con-
victed of cannabis possession at almost twelve times
the rate of White people, despite lower rates of self-
reported use (ibid., p. 44), and they were over nine
times more likely than White people to be sen-
tenced to immediate custody for drug offenses
(ibid., p. 45).
DRUG PROHIBITION VIOLATES RIGHTS
Drug prohibition and criminalization not only nega-
tively impact individual users and communities, they
may also violate people’s rights (Barnett 2009; Fellner
2009). Although some voters and public officials may
disapprove of others’personal drug use, people gener-
ally have rights over their own bodies that allow them
to make decisions not only about their health, but
also about the substances they choose to consume,
including those drugs that have been legalized in the
U.S. and elsewhere, such as alcohol and tobacco. For
example, people may use drugs to examine their con-
sciousness, to explore their character, to access and
respond to their values, motivations, and desires, and
to engage in self-development and self-understanding
(Fadiman 2011; Kaelen et al. 2015; Schmid et al. 2015;
Liechti, Dolder, and Schmid 2017; Preller et al. 2017;
Griffiths et al. 2018; Veit 2018; Earp 2018; Lewis 2020;
Earp and Savulescu, in press). Although most drugs,
including alcohol, can be used in ways that harm the
user, the potential for self-harm does not normally
provide adequate grounds for outright prohibition. In
general, prohibition conflicts with one’s right to con-
trol what substances one can put into one’s body for
Figure 1. Percentage of White vs. Black U.S. population to use an illicit drug/misuse opioids in the past year. Note that use/misuse
is similar between the racial groups, with two main exceptions: crack, which has a higher rate of use among Black people, and hal-
lucinogens and methamphetamine, which have higher rates of use among White people. Data source: SAMHSA (2018).
6 B. D. EARP ET AL.
one’s own enjoyment or self-exploration (Huemer
2007; Barnett 2009).
Moreover, people who freely
choose to use drugs for personal purposes do not (as
such) violate the equal liberty of others and are, there-
fore, not presumptively liable to civil penalties. As
Ostrowski (1990) noted decades ago:
Drug prohibition is [the] initiation of physical force
against persons engaging in non-violent actions and
voluntary transactions involving prohibited drugs. By
definition, drug suspects and drug convicts have not
been arrested or convicted for having initiated force
against the police or private citizens. They would be
suspected or convicted of robbery, rape, murder, etc.,
if they had initiated force against others. (p. 609)
In addition to directly violating some rights, pro-
hibition with criminalization indirectly weakens other
rights (Barnett 2009). As demonstrated by the case of
Breonna Taylor, for instance, it makes some people
more vulnerable to violations not just of their civil lib-
erties but also of their right to life, even when they
are not engaged in illegal activity (Husak 1992). For
example, drug laws can be used as a pretext for priv-
acy-invading police actions that violate constitutional
prohibitions against unreasonable searches (e.g., no-
knock raids), unreasonable seizures (e.g., civil asset
forfeiture) and excessive force (Bertram et al. 1996;
Barnett 2009). Finally, to the extent that drug prohib-
ition is enforced in ways that discriminate on the
basis of race, it also undermines rights to equal pro-
tection of the law, as guaranteed by the Fourteenth
Amendment to the U.S. Constitution (Fellner 2009).
THE BENEFITS OF DECRIMINALIZATION AND
Decriminalizing drug consumption and possession of
small amounts of drugs currently deemed to be illicit
would not, on the whole, undermine public health or
public safety. Rather, decriminalization makes drug
use safer and eliminates the harms and injustices asso-
ciated with arresting and incarcerating drug users. For
example, in Portugal, the decriminalization of all rec-
reational drugs in 2001, together with preventive,
treatment, and other harm-reduction efforts plus
social reintegration, reduced the harmful effects of
arresting and incarcerating drug users, freed up scarce
resources in the criminal justice system, and lowered
the rates of reported substance use disorders, overdo-
ses, and drug-related HIV and hepatitis (Greenwald
2009; Hughes and Stevens 2010; Kreit 2010; Silvestri
2015; DPA 2019).
By 2017, Portugal’s drug-induced mortality rate
among adults was substantially lower than the
European average (4 deaths per million compared to
22 deaths per million) (EMCDDA 2019). Although
the rate of cannabis use in the overall population over
a twelve-month period increased from 3.3% in 2001
to 5.1% in 2017, use of all other previously illicit
drugs (over a twelve-month period) has fallen below
2001 levels (Balsa, Vital, and Urbano 2017; DPA 2019;
EMCDDA 2019). In addition, since the introduction
of these policies, drug offenses, including trafficking
and related crimes, have not spiraled upwards
(Hughes and Stevens 2010; DPA 2019; SICAD 2019).
As the Portugal example shows, when drug users
do not fear criminal charges, they are able to seek out
medical treatment, mental health care, and social sup-
port programs, and can access government-approved
public information about the harms involved in drug
use. In Portugal, the social institutions that focused
on harm reduction instead of punishment were also
able to engage and help more young people than the
criminal system (Silvestri 2015). Additionally, drug
decriminalization enabled officials to more effectively
deliver housing, health, and employment assistance to
populations that would have been more difficult to
reach under a prohibitive regime (Kreit 2010; Silvestri
2015; DPA 2019).
Decriminalization alone, however, does not remove
the harms associated with illicit markets (Ostrowski
1990). Such markets do not prioritize consumer safety,
and sellers may not be concerned with the age, med-
ical history, or vulnerability of their customers. In
addition, decriminalization without legalization would
continue to subject people who use drugs to civil pen-
alties, including fines, which, in the case of a fine
default, could still lead to imprisonment (Hall 1997).
Consequently, as we have said, while the first and
immediate step should be to decriminalize the per-
sonal use and possession of small amounts of all drugs
currently deemed to be illicit, subsequent steps should
The right to health may also sometimes be at stake. For some people,
prohibited substances such as marijuana, psilocybin, MDMA, LSD, or
Ketamine, may be used to treat conditions or manage symptoms in light
of the limitations or side-effects associated with conventional
medications, or to augment existing therapies (Fadiman and Korb 2015;
Griffiths et al. 2016; Mithoefer, Grob and Brewerton 2016; Polito and
Stevenson 2019). Although participation in “medical marijuana”(“MMJ”)
programs varies considerably by state, registry estimates in 2016 suggest
that there were around 650,000 registered MMJ users in the U.S. (Fairman
2016), with the majority of participants reported to be in their 40s and
50s (Ilgen et al. 2013; Zaller et al. 2015). However, for those who, for
example, cannot access MMJ programs, or whose optimum therapeutic
drug is not approved for medical use, drug prohibition impedes their
right to access beneficial medical treatment. This problem has been
exacerbated by a hostile regulatory and funding climate that has,
historically, inhibited research into “illicit”drug treatments and novel
drug-assisted therapies, especially those involving MDMA, LSD, or
psilocybin (Mithoefer, Grob, and Brewerton 2016; Abbott et al. 2020).
THE AMERICAN JOURNAL OF BIOETHICS 7
find ways to safely and legally regulate the production,
storage, distribution, handling, sale, supply, and use of
Legal regulation offers several advantages over
mere decriminalization. It would allow governments
to introduce “safe supply”programs for cannabis,
opioids such as heroin, stimulants such as cocaine
and crystal meth, empathogens such as MDMA, and
psychedelics such as psilocybin and LSD in order to
curtail the harms associated with illegal markets,
end the stigmatization of drug use and drug users,
and increase the benefits of responsible drug use
and treatment options for substance use disorders
(CAPUD 2019). If the drug industry were a regu-
lated business, governments could provide drug
safety-and-hygiene regulations, expanding upon those
measures already known to be cost-effective and
efficient at reducing harms associated with drug use,
such as needle exchange programs (in combination
with medication-assisted therapy where appropriate)
(Rhodes and Hedrich 2010; Kimber et al. 2010).
Accordingly, they would be able to tax drugs
according to proper assessment of their respective
harms (e.g. Nutt, King, and Phillips 2010), and
regulate production, storage, handling, and distribu-
tion. In collaboration with scientists, regulators, and
local authorities, governments could enforce drug
safety laws, with qualified officials inspecting pro-
duction and distribution premises in order to ensure
In addition, state and local authorities could pro-
vide drug consumption rooms, in which people can
more safely use a range of substances (EMCDDA
2018), as well as clinical-like settings for injection
drug use. They could provide government-approved
health information and guidelines relating to safe use,
potential harms, and potential benefits. They could
also restrict advertising, set appropriate age limits, ban
sales to intoxicated people, ensure that public health
information is clearly displayed on all packaging, and
facilitate and enforce appropriate licensing laws. Such
laws could not only limit purchase amounts and pur-
chasing times, but also require special licenses for the
purchase of certain drugs deemed to be higher-risk.
Of course, we recognize that whether, and to what
extent, these suggested features of a possible regula-
tory regime will lead to a reduction in relevant harms
in practice will, ultimately, depend on the types of
enforcement strategies that policymakers adopt to
ensure compliance and the rigor with which these
strategies are carried out.
All told, we consider a policy of legal regulation to
be preferable to decriminalization on its own, which
in turn is preferable to criminalization.
IMPLEMENTING DRUG POLICY REFORM
Those seeking to implement drug policy reform need
to be aware of the complexities of international law
and associated policies. For example, they need to be
aware of the U.N.’s international drug control treaties,
which have been ratified by the majority of member
states, and of the U.N.-based international drug con-
trol system, which has been partially responsible for
the rise of the “global drug prohibition regime”built
around its multi-lateral conventions (Nadelmann
1990). Several U.N. treaties
prohibit the non-medical
use of many of the drugs currently deemed to be
illicit, and have been criticized for the very same rea-
sons discussed in this paper (Hall 2018). Given the
legalization policies that have come into effect in cer-
tain jurisdictions (see footnote 5), the future of these
treaties is uncertain (Hall 2018.). However, the ques-
tion is how to justify domestic policy shifts in light of
preexisting international commitments, especially as
the global drug prohibition regime has—at least
historically—generated a substantial amount of com-
pliance (Finnemore and Sikkink 1998). As Bewley-
Taylor (2018) suggests, one option might be to modify
certain treaty provisions by means of a “special
agreement”among a group of like-minded nations.
For instance, if the U.S. sets a precedent for the
legalization of the personal possession and use of all
drugs deemed to be illicit (plus their regulation as
described), and if other influential nations follow suit,
then the treaties in question would likely become
“dead letter[s]”(Hall 2018).
Although it is not our aim to defend a particular
solution for how a given jurisdiction should navigate
the tension between (a) implementing drug policy
See: Single Convention on Narcotic Drugs (1961), Convention on
Psychotropic Substances (1971), and Convention Against Illicit Traffic in
Narcotic Drugs and Psychotropic Substances (1988).
Another option, one that was pursued by the Obama administration in
response to the legalization of cannabis in Washington State and
Colorado, is to highlight the “flexibility”reserved to signatory parties in
seeking to achieve the treaties’aims (Bennett and Walsh 2014; Bewley-
Taylor, Jelsma, and Barrett 2015). With the 2018 proposal of the
Strengthening the Tenth Amendment Through Entrusting States
(“STATES”) Act, which seeks to continue to class cannabis as a Schedule I
drug while prohibiting federal law enforcement from prosecuting those in
compliance with state law, it seems that the U.S. still considers the
“flexibility”approach to treaty compliance to be a politically attractive
option (e.g., see Firestone 2019). Given that we call for the legalization
and regulation of cannabis as the first of a series of policy changes, the
“flexibility”approach could support the implementation of our proposals
in the short term.
8 B. D. EARP ET AL.
reform at a local/national level and (b) responding to
the demands of international law, we do suggest that
if the U.S. is to set a standard for other countries to
follow, its reforms must be both evidence-based and
ethical—and driven by a firm commitment to racial
justice. Indeed, responsible drug policy is about more
than just drugs: it is about the flourishing of entire
communities. And in this context, it is most especially
about the flourishing of Black and Hispanic commun-
ities that have been disproportionately harmed by the
“war on drugs.”Thus, while we ultimately call for the
adoption of de jure decriminalization (as qualified
above), one way to mitigate racial disparities in pros-
ecution, conviction, and sentencing rates in the short
term is by immediately shifting the focus away from
the criminal justice system to a civil “drug court”
model (Kreit 2010). This shift would ameliorate harms
caused by criminal proceedings and provide less puni-
tive points of contact to treatment and social services.
Such a shift is already widely supported among public
health and policy experts (ibid.).
But we need to be upfront. A full recovery from
the failed “war on drugs”will require more than
minor shifts and tinkering. Rather, it will require a
domestic, postwar “Marshall Plan”consisting of (1)
community-building programs focused on poverty
alleviation, job creation, improved schooling and
housing, and social mobility, thereby reducing the sys-
temic harms that are either caused or made worse by
the “war on drugs,”mass supervision, and mass incar-
ceration; (2) adequately expanded healthcare, social
support programs, and rehabilitation efforts for those
who struggle with addiction or other harms associated
with drug use or misuse; and (3) realistic, evidence-
based educational programs oriented around dissuad-
ing minors from drug use, promoting safety among
adults who choose to use drugs, and honestly inform-
ing the public, policymakers, and other stakeholders
about the benefits and risks of using different drugs
in different settings.
Little of what we argue here is new. The ideas regard-
ing decriminalization, at least, have been the consen-
sus or near consensus of people who use drugs, drug
policy experts, harm reduction advocates, criminal
justice reformers, and others for decades (Bennett
1974; Maloff 1981; Farr 1990; Duke 1995; Kerr et al.
2006; Stimson 2007; WHO 2014, 2017; UN 2019).
Here, we simply add our support as bioethicists and
allied professionals to this long-proposed policy
change while calling for its extension through to legal
regulation of all drugs currently deemed to be illicit,
and highlighting the implications for systemic racism
(Danis, Wilson, and White 2016). As we have
observed, the “war on drugs”has disproportionately
targeted historically vulnerable communities. In par-
ticular, Black and Hispanic communities have borne
the brunt of this misguided “war”with its unjust drug
laws coupled with discriminatory policing, prosecu-
tion, conviction, and sentencing. The moral impera-
tive now is for policymakers to act. Drug prohibition
and criminalization have been costly and ineffective
since their inception (Miron and Zwiebel 1995;
Sterling 2006; Miron 2018): it is time for these failed
policies to end. The first step is to decriminalize the
personal use and possession of small amounts of all
drugs currently deemed to be illicit and to legalize
and regulate cannabis. Policymakers should pursue
these changes without further delay.
Brian D. Earp http://orcid.org/0000-0001-9691-2888
Jonathan Lewis http://orcid.org/0000-0001-8342-1051
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