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Drugs and JusticeReview - Drugs and Justice
Seeking a Consistent, Coherent, Comprehensive View
by Margaret Battin, Erik Luna, Arthur G. Lipman, Paul M. Gahlinger, Douglas E. Rollins, Jeanette C. Roberts, Troy L. Booher
Oxford University Press, 2007
Review by Robert L. Muhlnickel, MSW
Jun 2nd 2009 (Volume 13, Issue 23)

Drugs and Justice is a collaborative work about conceptual problems arising in drug regulation in law and policy. The authors come from law, medicine, policy, social science, and philosophy. I summarize the work in section one, expand on some parts in section two, and suggest one criticism in section three.

Section One: Summary

The authors pose a problem they believe they are able to help solve. The problem is the tendency to think in distinct compartments, or in their over-used metaphor, silos, about drugs. They list seven areas of legal, moral, and policy thinking about drugs: prescriptions, over the counter medications, alternative medicines, socially used drugs, religious-use drugs, sports-enhancement, and illegal recreational drugs.

Their hypothesis is that our moral, legal, and policy thinking about drugs "will look quite different if examined across" all seven categories of drug use (p. xv) Examining our thinking across all categories of drug use requires appeal to considerations of consistency, coherence, and comprehensiveness. The authors hope to show that greater consistency, coherence, and comprehensiveness in thinking about drugs will lead to greater justice in drug policy, where the role of justice is "to balance competing interests in an equitable way" (p. 9)

Chapter 1 explains the project, cites examples of inconsistency and incoherence the authors espy in current thinking about drugs, and introduces the formal standard of justice, treating like cases alike. Chapter 2 summarizes the history of U. S. drug regulation, legalization, and enforcement. Chapter 3 surveys various U. S. federal agencies that regulate and enforce drug regulation and states the policy rationales for the agencies, including conflicting rationales. Chapter 4 considers the core concept of addiction and Chapter 5 takes up the concepts of harm and benefit as they relate to drug policy.

Chapter 6 analyzes a series of cases to show that current thinking about drugs raise conceptual puzzles and conflicting intuitions that underlie the conflicting and incompatible elements in current thinking about drugs. Chapter 7 considers two ideal types of drug policy and three "real-world" regulatory schemes based on central principles of justice.

Section Two: Expansions

The authors apply a 'thin' notion of justice in the book: the formal requirement that like cases be treated alike. To this end they list a number of known cases in which apparently similar drug use is treated differently (pp. 10-12). They mention differences in criminal penalties for crack and powder cocaine, differences in criminal sentences for distribution of LSD based on the weight of carrier, sugar cubes, paper blotters, or gelatin caps, the difference in penalties for Olympic athletes and National Football League players for steroid use, and differences in classification as controlled substance in state and federal classification systems. These differences motivate the question whether current drug policy is consistent, coherent, and comprehensive. The authors acknowledge that consistency, coherency, and comprehensiveness are necessary but insufficient criteria for a just drug policy.

The authors focus on two conceptual problems. The first problem is determining what is a drug, the second that of consistency and coherence in classification within the class of drugs, when the different kinds of drugs are used for different purposes.

They usefully summarize material scattered across specialist literatures. The section on "basic categorization" distinguishes substances that require intervention from those that do not, and the two sorts of intervention, informational and regulatory, the latter including regulation of production, distribution, and use. The basic categorization scheme establishes which substances whose use is prohibited, whose use requires stricter or looser regulation, and whose status is unregulated, even not requiring provision of information to potential users of the substance (pp. 56-59). 

An example of the second problem is the differences between the consensus definition of addiction following from discussion by members of the American Academy of Pain Medicine, the American Pain Society, and the American Society of Addiction Medicine (the "consensus definition") and that of the American Psychiatric Association Diagnostic and Statistical Manual (the "diagnostic concept"). The consensus definition conceives of addiction as a disease caused by multiple factors and construes continued use despite harm as an indicator of addiction rather than a necessary condition of addiction, as in previous definitions (p. 98). The consensus definition notion of dependence is a physiological adaptation that is relatively easily managed by pain treatment experts. In contrast the diagnostic concept of dependence is a serious, necessarily harmful, and acute form of substance abuse. In contrast to the consensus definition notion of harm, the diagnostic concept includes specific kinds of harms (social, interpersonal, vocational) and construes those harms as necessary for dependence (p. 110).

The significance of this difference is that two conceptions of addiction in different areas of medicine are easily confused. One might argue that since definitions and diagnoses have different functions these concepts of addition are compatible. However, this theoretical difference is ineffective practically and reflects tensions and pressures on the concept of addiction (p. 121-122). Each area of medicine influences public perception of addiction, influences access to resources that patients need for pursuit of their well-being, and determines what treatments are available to patients.

The concluding chapter contrasts ideal types of drug policy and plausible actual-world drug policies. The ideal types are "drug anarchism," no legal sanctions or regulation of drugs and "total drug prohibitionism," no drug use permitted for any of the purposes listed above. More plausible policy schemes are based on guiding principles: (i) the autonomy of the individual drug-user, (ii) the authority of licensed experts to determine appropriate types and doses of drugs to use, and (iii) a centralized tight regulation by a consolidated federal agency whose remit includes all forms of drug use.

Three: Critical Remarks

I could not ignore some worrisome thoughts as I read Drugs and Justice.  The authors' central claim is that legal, moral and regulatory thinking and practice about drugs are ensiled and that holistic thinking about drugs will lead to fairer drug policies.

My worry is that perhaps there are good reasons for divergent rather than holistic thinking about drugs. Some examples might make this clearer.

One area that concerns the authors is the use of drugs to enhance performance in sports. What this an area of concern are: (a) fairness in competition; (b) the intrinsic value of human athletic performance versus the value of winning in competitive games; (c) the value of high-performance ('professional' or sponsored amateur) athletics as entertainment and a source of wealth for a few relative to the value of recreational athletics as hobbies and health promotion activities for many; (d) deceit when athletes use drugs to enhance performance while denying that they do; (e) the risks to health and well-being over an athlete's entire life for the sake of enhanced athletic performance.

The authors' focus on drug use to enhance sports performance leads them to miss several issues. The first is that athletes are not alone in using drugs to enhance performance. University students use drugs to enhance academic performance; drugs are prescribed to increase behavioral control of 'hyperactive' children in schools; scholars and researchers use drugs for cognitive enhancement; musicians and dancers use drugs to control pain, increase muscle strength, maintain attention, and reduce performance anxiety. Popular medical literature is replete with claims that people use antidepressant and anti-anxiety medications to enhance social performance by reducing shyness, loneliness, and boredom.

The second issue is that drugs are not the only means of enhancing performance. Consider a dancer who wants to enhance performance. A dancer could avail himself of several means to that end: drugs, massage or physical manipulation of limbs by physical therapists. Licensed physical therapists might also recommend electrical stimulation, taping and padding, devices to assist motor control, or retraining in movement technique. Drug use is but one means to the end of enhanced performance.

The second issue the authors give less than its due is the place of drug use in action. The author's do consider the issue, distinguishing a "primitive" view of drugs in which the substance itself is considered beneficial or harmful, from a "modern" view in which drug-taking is beneficial or harmful. But this only begins to address the issue.  Taking or using a drug is a means to an end. The moral status of taking the drug derives from the end for which it is taken. The relevant question is whether the means, taking a drug with particular effects, more effectively brings about the end than other means, without also having effects that are more harmful than other means.

Consider the distinct ends for which "recreational drugs" and pharmaceuticals are ordinarily the means. The end of taking recreational drugs is to increase certain forms of pleasant or desired experiences, accompanied by risks of harm such as unpleasant experiences, addiction, legal apprehension, or social criticism. The end of taking pharmaceuticals is to relieve pain caused by injury or to alter biological functions, which have the further goal or health, extending life, or restoring function. The different ends of drug use seem to me to provide good reason for distinct forms of thinking about the substances used in pursuit of those ends. Since drugs must be compared with distinct means of reaching those ends in each area, each choice is highly complex.

Conclusion

I do not mention my worry to defend ensiled thinking about drugs. There is considerable similarity in the ends for which drugs are taken in the seven areas the authors consider. There is good reason to consider the confusions in particular areas that have similar ends, as the different conceptions of addiction show. My worry represents my wariness about pleas for unified thinking about drug-substances without carefully considering the distinct ends for which drugs are taken.

I welcome the publication of Drugs and Justice. It summarizes useful historical and policy material, exemplifies the sort of cross-disciplinary inquiry I hope becomes more common in practical ethics and social philosophy, and challenges us to ask important questions about our thinking about drugs. It would make a useful case study in Philosophy of Law courses.

© 2009 Robert L. Muhlnickel

Robert L. Muhlnickel, MSW, has been a clinician and teacher in the University of Rochester Department of Psychiatry and is completing his Ph.D. dissertation in Philosophy at the University of Rochester. He also works on a grant training clinicians in evidence-based family practices for people with serious and persistent mental illness, co-sponsored by the NYS Office of Mental Health and University of Rochester Medical Center.


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