V. IMPACT OF LEGAL AND PUBLIC POLICY MEASURES TO CONTROL DRUG USE ON HUMAN RIGHTS
The analysis of legal and public policy responses to drug use suggests : several conclusions:
(1) legal and policy responses are dynamic and evolving;
(2) there is increasing appreciation for the salience of harm-reducing, public health approaches to these responses;
(3) there is a scarcity of discourse about drug use and human rights and an urgent need for analysis of the intersection of drug use and human rights;
(4) human rights concepts and principles can provide useful insights into legal and policy responses to drug use; and
(5) there are at least four situations in which the present legal and public policy responses to drug use have impact on the human rights of drug users.
The first situation concerns the value of privacy in relation to drug use and infringement on privacy by government efforts to control drug use.208 The threshold issue is whether or not drug use can be considered a "private" activity and, if so, under what circumstances and what limitations might there be on government intervention aimed at controlling drug use? The second situation relates to reduced respect for the human rights of drug users. Unlike nonusers, many drug users are marginalized, often impoverished, and are often stigmatized, scapegoated, and discriminated against prior to using drugs, and they are made even more so by their drug use. It is not uncommon that people in such situations will exclude themselves from society, fail to seek respect for their rights, and forgo exercising them, even when opportunities to exercise their rights are available. The adverse influences to which they are prey become a self-fulfilling prophecy.209 The third situation relates to the impairment of the health and autonomy of drug users, particularly their mental health. This concern poses three questions. First, what protection do drug users need as a result of these impairments?210 Second, can drug users be considered disabled, and therefore eligible for the same protection afforded other disabled persons?21l Finally, under what conditions could drug use be considered a disabling condition?212 The fourth situation concerns discrimiation against drug users and violations of their human rights based on their use of drugs. While both human rights violations and discrimination against drug users appear to be common, there is a scarcity of empirical data documenting these abuses. Consequently, there is a need to identify and characterize the situations and circumstances in which such abuses can or are likely to occur.2l3
A. Drug Use as a Private Behavior
Drug use is a very widespread behavior. It can occur openly as with tobacco and alcohol use, furtively as with cannabis, LSD, or XTC use, or clandestinely as with amphetamine, cocaine, and heroin. Each of these activities is an individual behavior that has a variable impact on the user and on others. In this regard, drug use is similar to many other private behaviors. The following section argues that drug use can be considered a private behavior like many other daily activities. In doing so, it recognizes that:
There are broader and narrower conceptions of privacy. On the narrower range of conceptions, privacy relates exclusively to information of a personal sort about an individual and describes the extent to which others have access to this information. A broader conception extends beyond the informational domain and encompasses anonymity and restricted physical access&.
Embracing some aspects of autonomy within the definition of privacy, it has been defined as control over the intimacies of personal identity. At the broadest end of the spectrum, privacy is thought to be the measure of the extent an individual is afforded the social and legal space to develop the emotional, cognitive, spiritual, and moral powers of an autonomous agent. An advocate of one of the narrower conceptions can agree about the value of autonomous development but think that privacy as properly defined makes an important bur t limited contribution to its achievement.
Privacy is important as a means of respecting or even socially constructing moral personality, comprising qualities like independent judgment, creativity, self-knowledge, and self-respect. It is important because of the way control over ones thoughts and body enables one to develop trust for, or love and friendships with, one another and more generally modulate relationships with others. It is important too for the political dimensions of a society that respects individual privacy, finding privacy instrumental in protecting rights of association, individual freedom, and limitations on governmental control over thoughts and actions. Finally, it has been argued that privacy is important as a means of protecting people from overreaching social (as opposed to legal) pressures and sanctions and is thus critical if people are to enjoy a measure of social freedom.214
The classification of drug use as a private behavior depends upon showing that it is an autonomous activity and that it does not differ substantively from other private activities. This necessitates first distinguishing between innocuous, voluntary drug use and that which is compulsive and harmful. Second, the similarities between drug use and other private activities must be determined. This requires an analysis of the benefits, risks, and harms associated with drug use and with other activities.
1. Voluntary, "Innocuous" Drug Use
Many activities exist that are considered private and involve individuals acting autonomously. Society seldom interferes with such activities.215 Generally, the activities in which autonomous individuals216 are free to use their own bodies for their own purposes include those where engaging in the activity does not cause excessive harm to themselves or others.217 This includes tolerating and sometimes encouraging a wide variety of sports and leisure activities218 (e.g, adventuring,219 drinking coffe220 and alcohol, smoking , tobacco,221 the use of computer and video games, playing bingo, and casino and racetrack gambling222), despite the occurrence of tragedies, injuries, or other avoidable harms which can sometimes result from these activities. Society, by not prohibiting these activities, implicitly views the benefits of such activities as outweighing the harms that may occur from them.223 On the other hand, drug use, like smoking and the immoderate use of alcohol, is generally condemned and punished by governments.224 Nonetheless, large numbers of people use drugs illicitly, and most of them dl so without causing serious harm to themselves, other than breaking laws regarding their use.225 Moreover, apart from the indirect harms to society related to the interdiction of drugs, society is seldom harmed by this activity.
Despite a widespread perception that drug use is dangerous and harmful, there is ample data supporting a conclusion that, on the basis of all types of drug users, most drug use is transient, noncompulsive, and innocuous.226 For example, a recent study of individuals with private health insurance in New York estimated that one percent of the total insurance subscriber population studied were steadily employed, opiate-using individuals.227 "According to the U.S. Department of Labor, 77 percent of serious cocaine users are regularly employed."228 In surveys of students in the United States, 3.1% reported that they had used cocaine and 5.6% had used LSD during 1992.229 In Canada, almost five percent of men and slightly less than two percent of women between the ages of twenty-five and thirty-four reported that they had used cocaine during 1989 and approximately four percent of adults reported using LSD, methamphetamine ("speed"), or heroin at least once.230 Even more alarming, however, was that 1.3% of Canadians reported that they had injected themselves with drugs using needles shared with someone else.231 Given such findings, it is not unreasonable to conclude that most drug use is undertaken voluntarily. Nevertheless, such activity, even if voluntary, may not always be undertaken harmlessly or under conditions of minimum risk.232 However, drugs can be used in a manner that is not seriously harmful to users or to others. This poses the question whether or not government intrusion into this behavior is justifiable and, if so, under what conditions might it be justifiable? This has obvious implications regarding the opportunities of drug users to exercise their rights viz a viz government intervention to control this behavior. Drug use can be viewed as a particular example of a more generalized principle; namely, that despite the risks, people use their bodies in a variety of ways for their own private, intimate, and voluntary purposes, including pleasure.233 Many of these activities are prevalent and popular.
Examples include alpine skiing, whitewater rafting, bungee jumping, sunbathing, racetrack betting; and social drinking.234 Some of these activities can be risky and, indeed, some people engage in them because they are both exhilarating and dangerous. Nevertheless, governments do not prohibit these activities and rarely interfere with them, other than to regulate them in order to reduce or prevent the risks and harms they present. This leads to the question of whether or not voluntary, innocuous drug use can be considered distinct from such activities with regard to their benefits, risks, and harms. If drug use differs substantively from these other activities, dissimilar treatment is justified. On the other hand, if drug use is not dissimilar, only those aspects of drug use differing from these other activities warrant different treatment. Because it is difficult to identify substantive differences in benefits, risks, and harms between voluntary, innocuous drug use and other comparable private activities, it would not be unreasonable to conclude that voluntary, innocuous drug use is a private, albeit risky, and sometimes, harmful behavior.
One consequence of a prima facie presumption that drug use is a private activity is that legal and public policy responses to drug use cannot be treated differently from responses to other private behavior.235 In other words, government responses to drug use have to be consistent with those of other comparable behaviors. Here, proportionality is concerned with "whether the legislative response to illicit drug behavior is appropriate relative to the state response to other particularly harmful behaviors .... Proportionality, like the efficient allocation of limited enforcement resources, includes comparison with other risk-producing conduct and the subsequent comparison of drug-related behaviours relative to one another."236 On the other hand, equality demands that like cases be treated alike or "that the legal definitions of offences correspond to meaningful categories of behaviour."237 This has, at least, four important human rights implications. First, considering drug use to be a private behavior would seriously question the prohibition of voluntary and innocuous (in contrast to compulsive or harmful) drug use. This, however, does not imply that people have a "right" to use drugs. As one commentator has noted:
One reason to deny that adults have a moral right to use recreational drugs is that the principle of autonomy does not apply to or protect any recreational activity. According to this school of thought, no one has a right to play baseball, ski, or participate in any nonprofessional sport. Persons are morally permitted to engage in recreational pursuits only as long as consequentialist considerations allow them to do so. But as soon as a net balance of disutility is caused by a given recreational activity, the state would have the authority to prohibit it without infringing moral rights.238
It also does not imply that governments cannot prohibit or limit the use of a drug when it would have a serious and unavoidable net harm for the user or for others.239 It would mean, however, that prohibiting or limiting the use of a drug would be the least restrictive and intrusive intervention available to prevent the risks and harms of drug use. For example, in ruling on a claim that marijuana use at home is constitutionally protected by a right to privacy, the Alaska Supreme Court held that:
The authority of the state to exert control over the individual extends only to activities of the individual as it relates to matters of public health or safety, or to provide for the general welfare. We believe this tenet to be basic to a free society. The state cannot impose its own notions of morality, propriety, or fashion on individuals when the public has no legitimate interest in the affairs of those individuals.240
The standard applicable to state intervention aimed at preventing or reducing the risks and harms from drug use would, presumably, not differ from that which applies to state intervention into other private behavior. This would mean that an intervention to prohibit or limit drug use is (1) the least intrusive and least restrictive measure reasonably available; (2) proportional to the benefits, risks and harms involved; and (3) not disproportionate to interventions for other comparable private behaviors. Because private behaviors, including drug use, can be compared on the basis of their benefits, risks, and harms, responses to drug use can be compared to those of other behaviors. These responses should be similar to that of other behaviors insofar as their benefits, risks, and harms are similar, and differ only insofar as their benefits, risks, and harms differ. Unfortu nately, responses to drug use rarely recognize such a standard. This is illustrated by responses to the use of tobacco, alcohol, and many narcotics, as well as to prohibited drugs such as cannabis, methadone and heroin. The harms from the chronic use of tobacco and alcohol, on both a population basis and individually, exceed the harms of most, if not all, prohibited drugs, as well as the harms associated with many private activities. Despite this, tobacco and alcohol use are not prohibited in most societies except for their sale to and consumption by minors, while the use of many less harmful drugs is banned. Further, activities such as scuba diving, bungee jumping, and skydiving are rarely prohibited.
Second, considering drug use to be a private behavior would shift the emphasis of government intervention from primarily controlling the supply and use of drugs to that of preventing or reducing the risks and harms resulting from drug use. This would be consistent with other "positive content" human rights obligations of governments, such as preventing and protecting people from disease.241 Examples of such interventions include educating drug users about the risks and harms of drug use, pro- viding drug users with opportunities to avoid using drugs or to use them in a harmless manner, and helping to make available and accessible the care and treatment that drug users who use drugs in a harmful manner may need. Subject to the availability of resources, these interventions would likely entail counseling, providing clean injection equipment, and treatment such as methadone maintenance.242
Third, viewing drug use as a private behavior would avoid or reduce situations in which rights would be jeopardized or infringed. This would reduce activities aimed at the detection of individuals possessing or using drugs, such as drug testing, searches, and seizures.
Fourth, considering drug use to be a private behavior would help decrease the stigmatization and scapegoating of drug users. This, in turn, would help ensure that the benefits, risks, and harms associated with the use of drugs would be more accurately assessed. Implicit in such an assessment is the importance of preventing and reducing risks and harms. It would also counterbalance the widely held belief that drug use is a public menace or danger. When drug users are perceived to be immoral, weak, and prey to inescapably dangerous drugs, the public perceives itself as needing to be protected from drugs and, all too often, from those who use them. In such a setting, prohibition, abstinence, and mandatory treatment are perceived as being necessary. It is believed that drug users need to be controlled, isolated, or confined, either by self-isolation or social exclusion, or by imprisonment. Such beliefs can easily lead to the passage and persistence of laws that reinforce these views.
Considering drug use to be a private activity is not a novel idea.243 Although they recognize the risks and harms involved, some governments already consider the use of some drugs to be a private matter. Per-haps the most prominent example of such a response is the response of governments to tobacco and alcohol use. Almost every community force-fully prohibits individuals from driving under the influence of alcohol, yet drinking alcohol is not prohibited.244 At the same time, governments educate people about the risks and harms from drinking alcohol, label bottles containing alcohol with health promoting messages, and encourage treatment when alcohol use is compulsive. This response to alcohol use illustrates the powerful impact of stigmatization. Alcohol abuse is strongly stigmatized, yet in most cultures its moderate use is unstigmatized (as alcohol advertising demonstrates). In contrast, the illicit use of most prohibited drugs is despised and severely penalized-even when these drugs are used with great moderation and at minimal risk to the user and to others.
That some drug users may become seriously dependent upon drugs would not appear to negate a prima facie presumption that drug use is a private behavior, because while dependence is a risk, it is not an unavoidable or inescapably harmful consequence of drug use. Many drug users can and do use drugs, often over long periods of time, without necessarily becoming harmfully dependent upon them.245 Serious compulsive drug use is a harm similar to the harms that can occur from other private, voluntary activities, which may be strictly regulated but not prohibited.246 Viewing drug use to be a private behavior would help erode the false dichotomy by which alcohol and tobacco use are perceived to differ from the use of other drugs. All drugs would be viewed as potentially harmful, but able to be used in ways that can avoid or minimize these harms. It would also help to reduce stereotyping of drug use as inherently "evil," morally offensive, and unavoidably harmful, thereby helping to reduce a stigmatization, scapegoating, and discrimination against drug users and the communities to which they belong.247 Society would then view those who use drugs in a harmful manner as individuals needing help, rather than as individuals deserving punishment for engaging in a clandestine, criminal behavior. It would also provide a more coherent and rational perspective on the distinction between the personal use of drugs and drug trafficking. Finally, it would distinguish risks and harms from current legal and public policy responses aimed at controlling drug use from those related to drug use itself.248
2. Compulsive and Likely Harmful Drug Use
This autonomy- emphasizing approach to drug use must be undertaken with caution because there is no clear demarcation between when drug use is voluntary and innocuous and when it is compulsive and likely to be harmful.249 The autonomy of drug users and the voluntariness of their drug use can be eroded when their drug use is persistent and becomes compulsive.250 Most people would probably agree that sometimes state intervention aimed at preventing or minimizing this risk and its harms is needed, justifiable, and desirable,251 but there seems to be little agreement about what should be the limits on such interventions. Views of what can and should be done to control the risks and harms of drug use are often not balanced, but often usually extreme and polarized. On the one hand, proponents of prohibition claim that an absolute ban on drug use is necessary and justifiable in view of the risks and harms brought about by drug use. They support these views, seemingly without regard to the costs and other harms which can result from prohibition, including the creation of a false dichotomy between licit and illicit drug use rather than between harmless and harmful drug use.252 On the other hand, there are those who would restrict state intervention to those that regulate the availability of and accessibility to drugs only when drugs are likely to be used in a harmful manner.253 There are numerous examples of such nonprohibitionary intrusions into private life, including age restrictions, licensing, limiting the sale and consumption of alcohol to certain hours, banning the smoking of tobacco in public venues, breathalyzer testing, and severe penalties for driving or working when under the influence of drugs. There are particular scenarios that illustrate responses that minimize interference with the human rights of drug users when intervention is deemed necessary.
First, there is the situation in which drug use can be innocuous for the user, but harmful to others. For example, when a pregnant woman uses drugs, including tobacco and alcohol, it can be relatively innocuous for her yet dangerous to her fetus.254 The least intrusive and restrictive response to such a situation would be to persuade pregnant women to voluntarily forgo using drugs when pregnant. The most intrusive-restrictive response would be to coerce pregnant women to stop using drugs when they are pregnant. The former approach, which involves education, counseling, outreach, and support, avoids the counter-productive risk of driving pregnant drug users underground and discouraging them from seeking health care which they and their fetus need. 255 Only when the less intrusive-restrictive approaches are unsuccessful, should more restrictive approaches be employed to protect the fetus.256 Although neither response is incompatible with prohibiting pregnant women from using drugs, the former. noncoercive response views pregnant drug users as needing help to strengthen or reinforce their autonomy to stop using drugs and that the use of coercion is a "last resort" intervention.
Second, there are situations where the autonomy of the drug user may be impaired or undeveloped such as when children use drugs.257 The early use of drugs has been associated with subsequent, harmful drug use. Thus, users who develop dependence on or compulsive use of drugs at a younger age are more prone to develop these problems, while those who initiate drug use at a later age are less likely to have the same problem.258 The least intrusive and least restrictive response to this situation would be "positive content" ir~erventions.259 This type of intervention can increase childrens awareness of drug risks and harms, enhance their self-esteem and ability to resist using drugs, and teach them skills to abstain from drug use or to use them in a safe manner. This may involve, for example, mandatory school education about drug use, advice, accurate information, counseling, support, care, and the promotion of peer-regulation.260 Further treatment may be necessary to protect children who otherwise may be unable to avoid drug use.261 At the same time, the role of parents and guardians in determining what should be done to their children must be recognized. Even if parents or guardians refuse such interventions, these interventions are likely to remain justifiable, but the scope of the resulting intrusion would be increased.
Third, situations exist in which individuals are placed at risk of serious harm by drug users. In such situations, warning the imperiled individuals of their risk may be necessary despite the intrusion into their private life. This scenario is analogous to notifying the sexual partners of individuals with a sexually transmissible disease or people exposed to someone with a communicable disease such as tuberculosis.262 For example, it may be appropriate to warn an employer about a heavy equipment operator if that employees drug use is likely to endanger others when using drugs. Similarly, the friends or family of a drug user may need to be informed if the drug user were prone to abusive behavior or a mental health disorder. This would be necessary if the disorder is triggered or aggravated by using drugs and the drug user refuses to heed advice about this risk.
Fourth, there are situations in which the mandatory treatment of drug users may be necessary and justifiable in order to avoid or reduce the risks of harm to others. Generally, these situations involve compulsive drug use. However, situations may exist where mandatory treatment of noncompulsive drug use would be the only effective means to protect others from serious harm. For the most part, these situations arise when a drug user repeatedly places others at risk of serious harm from physical or sexual abuse, violence, or trauma that would be unlikely or nonexistent in the absence of drug use. While the specific behavior is not a direct result of using drugs, drug use may alter its frequency or seriousness. For example, some incarcerated alcoholics may need treatment when their drug use places other inmates or staff at risk. Even so, this treatment would be considered to be a "last resort," invoked only when other interventions, such as prohibiting alcohol use, have failed.
Regardless of the specific type of intervention, or the underlying circumstances necessitating it, privacy-intruding interventions are justifiable only when stringent conditions are met.263 These conditions require that an intervention be the least intrusive, least restrictive, and likely to be effective means reasonably available to avoid or minimize the harm that would result in the absence of the intervention. This approach is consonant with government responses to other risks inherent in daily life. Examples include requiring people to wear helmets when cycling, to use seatbelts or babyseats when riding in automobiles, to obey speed limits and parking restrictions, to avoid littering, and to submit to breathalyzer or other drug testing. In addition, individuals infected with certain communicable diseases must occasionally subject themselves to examination and treatment, or restrict their activity that places others at risk. Examples of government intervention in such situations include the treatment of syphilis or tuberculosis, the prohibition on obtaining employment as a food handler when carrying salmonella, and the exclusion of students from school when they are infectious with chickenpox or measles.
As in any situation that could give rise to state intervention, drug users need realistic opportunities to freely discuss their drug use and its attendant problems. Similarly, it is important that drug users have access to assistance without fear of self-incrimination, condemnation, or other harmful consequences from such disclosure.264 Thus, drug users must be able to openly seek advice, counsel, and care, especially when the drug user is prone to compulsive or harmful drug use. Unfortunately, the severe stigma associated with drug use, its widespread disapproval, and its illegality, can impede drug users from seeking this help. Too often, help is sought long after dependence has developed. Consequently, increasing the availability of such help and destigmatizing drug use are essential health interventions. This would include interventions aimed at stopping stereotypical responses against drug users, particularly those interventions that interfere with the access of drug users to these services, the protection of their privacy, and safeguarding the confidentiality of information about them.
3. Drug Trafficking
Trafficking in drugs presents a difficult dilemma regarding state intervention aimed at controlling drug use. Controlling drug use and sup-pressing drug trafficking can have devastating consequences for drug users when the supply of drugs is reduced without a corresponding reduction in demand. As longs as the marketing and possession of drugs are prohibited, obtaining drugs will be a clandestine activity. This situation is problematic because it exposes a drug user, who might otherwise be considered innocent, to an illegal, profit-mad, crime-prone milieu. This scenario drives people seeking drugs underground to engage in illegal activity without any assurance of the purity of the black market commodity they buy. As a result, drug users purchase impure or adulterated drugs of unknown toxicity and potency, all the while facing arrest, prosecution, and imprisonment.
Additionally, suppressing the supply of drugs raises drug prices. This, in turn, favors trafficking in drugs by drug users to pay for their drug use. Substantial profits from the illegal sale of drugs, as well as "pyramiding,"265 often entices (or drives) people, especially young people, to traffic in drugs. The profits favor market expansion, increasing the demand for drugs. The result is especially troubling when drug trafficking preys upon people, especially the young, prone to experiment with drugs though unaware of, unprepared for, or unable to prevent or minimize the risks associated with drug use. As a recent editorial in The Economist stated:
The attitudes of most electorates and governments is to deplore the problems that the illegal drug trade brings, view the whole matter with distaste and sit on the status quo-a policy of sweeping prohibition Yet the problems cannot be ignored. The crime to which some addicts resort to finance their habits, and in which the suppliers of illegal drugs habitually engage, exacts its price in victims lives, not just money. The illegal trade in drugs supports organized crime the world over. It pulls drug-takers into a world of filthy needles, poisoned doses and pushers bent upon selling them more addictive and dangerous fixes.266 Efforts to prevent or stop-trafficking are costly. Wider appreciation of the ineffectiveness and economic deficiencies of attempts to control drug use, primarily by suppressing the possession of and trafficking in drugs,26 has prompted some governments to reexamine or modify their control over the use of drugs, such as tobacco,268 alcohol, and cannabis.269 In some instances, governments have substituted regulatory controls, such as taxation and licensing approaches, for criminal justice measures. For The most extreme example of alcohol control is total prohibition of alcoholic beverages, when the frequency of legal outlets is reduced to zero. There can be little doubt that during the first few years of prohibition in Canada, Finland, and the United States all indicators of alcohol consumption and alcohol problems reached the lowest level yet achieved in any period for which there are relevant data. It is also clear that in later years-say roughly 1923-1933 in the United States-as illegal trade became well established and the speakeasy and other clan-destine outlets made their appearance, consumption increased substantially.
Between the world wars, total prohibition, however, turned out not to be viable in any of the western countries where it was tried. Deeply rooted traditional drinking patterns, sizeable economic interests in the production and trade of alcoholic beverages, and the governmental need for alcohol revenue, exacerbated by the Depression, led to the demise of prohibition and a general weakening of protemperance sentiments. Nevertheless, it was these historical processes which led to present-day governmental controls on alcohol, most pronounced in northern Europe, North America and the Soviet Union.270
It is unlikely that either criminal suppression of drug possession or interventions aimed at reducing the demand for drugs, alone, could effectively control drug use and its harms. Accordingly, these two approaches must be balanced to eliminate or reduce both the highly profitable, crime-prone black market economy and the demand for drugs. Thus, there has been increased questioning and review of current legal and public policy responses to drug use to find a better balance among these alternatives. Suggestions as to the best balance among these alternatives is beyond the scope of this Article. However, in addressing this issue in the context of human rights, this Article points out the salience of human rights concepts and principles to help formulate and assess this balance.
4. Reevaluation of Legal and policy response to Drug Use
In many countries there is a growing appreciation that legal and public policy responses to drug use may be made more effective, more productive, less costly and less harmful. There is also an increasing momentum to reexamine the legal and public policy responses to drug use, particu larly those aimed at preventing or reducing the harms brought about by drug trafficking and by the prohibition of the possession and use of many drugs. There is wide disagreement as to the proper approach to prevent and reduce these harms. This debate is highly polarized with proponents of increased efforts to surpress drug use on one side and proponents of removal or relaxation of drug controls on the other side. A recent statement by former U.S. Surgeon General Jocelyn Elders illustrates this controversy. The Surgeon Generals remarks were reported in The New York Times as follows:
I do feel that we would markedly reduce our crime rate if drugs were legalized .... But I dont know all of the ramifications of this. I do feel that we need to do some studies. And in some of the countries that have legalized drugs and made it legal, they certainly have shown that there has been a reduction in their crime rate and there has been no increase in their drug use rate.271
Her statement was "met with a resounding chorus of dissociation and condemnation,"272 including by White House officials. As a commentary, also published in The New York Times, noted:
Dr. Elders comments revived a perennial debate about the most effective way to handle the nations drug problems. In the past few years a small but growing number of former and present government officials, commentators, and academics have argued that the present policy of aggressively prosecuting drug sellers and users should be reconsidered. They have compared the current state of drug policy to the prohibition of alcohol earlier this century and have said that the abolition of drug laws would eliminate the profit motive, the gangs, and the drug dealers.273
As the controversy regarding the Surgeon Generals statements illustrate, opinions about what can and should be done to control drug use are not only polarized, but also entrenched. At one extreme are proponents of prohibition and drug interdiction who confront proponents of unfettered liberty and unrestricted access to drugs. In the middle ground are people working for incremental or gradual changes in drug control. These moderates are accelerating the momentum of harm reduction, prevention, and treatment approaches.274 Recently, an editorial in The Lancet described the debate:
In a free society prohibition of intoxicants does not work. When such a policy was applied to alcohol in the USA it failed dismally; applied to heroin the outcome has been a disaster on a national and even international scale . Why should a counter-productive measure be pursued in the face of the evidence?
Much has been invested in the war against drugs. Apart from the money, some reputations and many jobs depend on it even if the chances of getting any of this investment back are remote, the war must go on. Also, it is felt that if it were not for the effort now being expended in this battle, the whole population might succumb to drug-taking and civilisation would crumble into anarchic groups of lotus eaters.27
The editorial goes on to point out that the middle ground often tends to be disregarded or overlooked in situations such as this, where opinions are so polarized, long-standing, and robust. In this setting, neither side can give up nor compromise their position or even acknowledge that there are alternatives which may resolve the dispute. To a great extent, this occurs when the stakes in the dispute are seen as too high or reputation may be lost in acknowledging alternative responses to drug use. Meanwhile, middle ground approaches, like those of harm reduction and public health, are impeded and cannot flourish. This is illustrated by a recent Australian government study which concluded that:
The current debate over drug policy is largely over whether or not these costs are larger than those associated with heroin use itself and to what extent use would in fact increase in the absence of controls (and whether or not the pattern of use, even if more people used, would produce greater social costs in a less regulated environment). For the most part the debate in the US has not addressed these issues in depth. Those who argue for changes to the status quo list the drawbacks of prohibitionism, but usually do not advance detailed or costed (in both the financial and social senses) proposals for specific changes and only assert that the pattern of use would be less costly in changed circumstances. The defenders of current policies, on the other hand, deliberately confuse drug use costs with drug control ones, use moralistic rhetoric to attack the critics, and merely assert that things would be worse under any more liberal drug control regime. The debate on both sides is long on invective, blurring of the issues and specious use of statistics, and short on reason, open-mindedness and facts.276
In this setting, public debate-free of rhetoric, ideology, and expediency is needed. The first step in resolving this dispute is the recognition that controlling drug use and its harms can be improved. This requires examining opinions and options other than ones own. For example, this debate could begin with proposals, such as those of Nadelmann and Wenner that are consonant with the promotion and protection of both respect for the human rights and the health of drug users and the public.
Any good nonprohibitionist policy has to contain three central ingredients. First, possession of small amounts of any drug for personal use has to be legal. Second, there have to be legal means by which adults can obtain drugs of certified quality, pu-rity and quantity. These can vary from state to state and town to town, with the Federal Drug Administration playing a supervi-sory role in controlling quality, providing information and assuring truth in advertising. And third, citizens have to be empowered in their decisions about drugs. Doctors have a role in all this, but lets not give them all the power.
A drug policy with these ingredients would decimate the black market for drugs and take out of the hands of drug lords the $50 billion to $60 billion in profits they earn each year. The nation would gain billions of dollars in law-enforcement savings and tax revenues, which could then be used to treat Americas most serious problem: the miserable life prospects of millions of poor, undereducated Americans growing up in decaying, crime-ridden inner cities.277
Proposals such as this should not be viewed as a rejection of prohibition (which, undoubtedly, they are), but rather as an opening gambit with which to explore ways to more effectively control drug use and prevent or minimize its harms, while ensuring respect for the human rights of everyone.
5. Human Rights Implications of a Privacy-Based Approach to Drug Use
A privacy-based, autonomy-emphasizing approach to drug use can have at least two important and potentially beneficial outcomes for drug users in relation to their opportunities to exercise their human rights.
First, this approach would help to destigmatize drug use and drug users, thereby helping to decrease the exclusion of drug users and subsequent discrimination against them. Second, it would decrease human rights infringements resulting from some of the present efforts to interdict drugs by shifting emphasis from the control o drugs to the reduction of risks and the prevention of harms from drug u$e.278 There would also be additional benefits for drug users and for others. The criminal justice and prison systems would benefit by being able to focus their efforts at better controlling traffic in drugs.279 The health care system would benefit from the reduction in medical harms associated with drug use. Society would benefit by recovering otherwise lost opportunities to address the conditions underlying the vulnerability of some persons to use drugs and of drug users to be deprived of their human rights. Most importantly, drug users would benefit from the improved access to education, employment, housing, counseling, support, and care. These changes would decrease the incidence of human rights infringements by reducing the number of drug users involved with the police, courts, prisons, and health care institutions. Lastly, increased respect for the human rights of drug users would extend to the communities to which drug users belong. This "vertical" effect of human rights would involve a spectrum of institutions and businesses, as well as individuals.280
B. Vulnerability to Drug Use and to Human Rights Abuses
1. Vulnerability to Drug Use
People who use drugs are frequently described as being vulnerable281 to begin using drugs, to persist in using them, and to be harmed by using them.282 Similarly, people whose rights are abused are frequently described as being vulnerable to these abuses. Vulnerability is also used to describe people who are exposed to infections, such as the human immunodeficiency virus.283
First, vulnerability is a description of the risk (or probability) of the occurrence of harm.284 It is descriptive of risks in a variety of situations, such as those relating to drug use, human rights abuses, or infection. Second, vulnerability focuses on the person at risk and the influence on this risk of whatever forces, factors, and influences which underlie or contribute to the risk. Third, vulnerability implies a process with potentially identifiable content and outcome. Although it is often a retrospective assessment of this risk, vulnerability can be used prospectively as a predictor of harms, or retrospectively as an indicator of risk. Fourth, it is applicable both to individuals and to the groups, communities, and populations to which individuals belong.
Vulnerability is a generic term and one that is used as a general expression or global estimate of risk when there are multiple components contributing to the risk. Vulnerabilitys specificity is provided by the risk it describes. It is a negative concept with its opposite being invulnerability, resilience, or resistance to the risk of the occurrence of harm. It is also an inclusive concept that reflects the various lifestyles and conditions which pertain to drug use and drug users. For example:
As a general rule, considerable effort has to be put into becoming dependent on a drug, especially one that is illegal, expensive, and scarce. Drug users who are also occupied with work or education, with nurturing personal relationships, or with recreational interests other than drug use will be hard pressed to find the time to develop a habit. But even more important are the beliefs individuals hold about the place of drug use in their lives as a whole, their self image, self-respect, and their future ambitions. Drug use decisions are quality-of-life decisions.285
Thus, vulnerability can be likened to the assessment of the forces, factors, and influences which limit the quality of life and self-reported health sta-tus.286 Indeed, the forces, factors and influences which are related to quality of life and health status are similar to those related to using drugs and being harmed by them.
At least four groups of factors may affect health status and quality of life: personal factors, social and familial factors, societal environmental factors, and health care system factors .... Personal factors include knowledge and attitudes about health, health behaviors, use of health care, and adherence to treatment regimens. Other important personal factors include close personal relationships, coping skills, social status, educational and work level, economic resources, standard of living, and leisure and recreation. Social and familial factors include social network and social support, and characteristics of those close to the individual, including their own health beliefs and behaviors, physical condition, and resources .... Societal factors include housing, neighborhood and community, environmental milieu, sanitation, opportunity/discrirnination, crime and political system. Health care system factors include availability, accessibility, and quality. While all of these factors can affect a persons health and quality of life, they are not themselves quality of life.287
This description points the complexity inherent in the construct of vulnerability. It includes the diversity or heterogeneity288 among drug users, the drugs they use, and the context in which drugs are used, including the forces, factors, and influences which create, contribute to, or pre-dispose to risk. Some of these forces, factors, and influences are well recognized and studied, such as poverty,289 socio-economic status,290 low self-esteem, antisocial personality disorder, peer pressure to use drugs or to use them harmfully, and prior drug use.
Studies indicate that alcoholics and illicit drug users are characterized by low self-esteem, poor family relationships, low socio-economic and educational status, poor academic performance, the presence of psychiatric disturbances, and a high index of novelty- or sensation-seeking behaviour; dependence is furthered by high peer pressure and the ready availability of drugs. Genetic factors definitely play a role in some addictions, such as alcoholism.29l
Factors such as these are important determinants of the risk of using drugs and being harmed by drug use. However, each of them individually is an incomplete measure of vulnerability. This is illustrated by a recent study of tobacco and alcohol use and other health-risking behaviors among Native Americans in the United States.
The results . . . do nothing to contradict the common stereo-type of reservation life, characterized by poverty, unemployment, higher prevalence of alcohol and tobacco use, and poorer self-evaluations of health. Among the few positive findings were relatively low rates of (reported) mental health problems, adequate access to IHS [Indian Health Service] health care, and higher levels of physical activity. Adjusting for socioeconomic status did little to reduce the differences between Indians and non-Indian comparison groups, suggesting that poverty and unemployment alone can not account for differences in health and lifestyle practices. Higher levels of education and employment were associated with better health status and lower smoking rates among non-Indians, but there was no association between SES [socioeconomic status] and either health status or smoking among those on the reservation
. . .
. . . The data also confirm in a more formal way what otherstudies have concluded anecdotally, namely, that problems of poor health, smoking, and alcohol abuse can only be partly explained by the relative poverty, unemployment, and lack of education among American Indians living on reservations.292
An additional feature of vulnerability is its relationship to autonomy. Vulnerability can be considered a reciprocal measure of autonomy, where someones risk of using drugs is inversely related to that persons autonomy. Because this risk is increased when autonomy is constrained or diminished, it follows that autonomy, in the context of drug use, needs to be promoted and protected. This, in turn, necessitates that people be in-formed about the risks and harms associated with drug use, be empowered, and have genuine opportunities to abstain from drug use or, at least, use them in as harmless a manner as possible.
There is a need for reliable and valid instruments that can measure vulnerability globally and the forces, factors, and influences that contribute to a global assessment of the particular risk involved.293 Among the positive and negative features contributing to an assessment of the risk of using drugs and of being harmed from using them are the following:294
(1)personal characteristics, particularly the biological and psychological characteristics of the individuals in the population involved, including conditions preceding or underlying drug use (such as an inheritable pre-disposition to use drugs or to persist in using them) and psychological or psychiatric disorders (co -morbidity or dual diagnosis);295 (2) social characteristics, such as family dynamics, schooling, social networks and sup-port, and cultural and community values and their stability;296
(3) economic characteristics; such as personal and neighborhood affluence or poverty, socio-economic status, and employment;297 and
(4) societal characteristics, which are extrinsic to drug user populations but affect them directly (e.g., marginalization, minority status, constraints on autonomy brought about by stereotyping, stigmatization and discrimination, and the inaccessibility to services such as health care, social support, education, and welfare services) because people are excluded from them or there is a failure to implement them.298
2. Vulnerability to Human Rights Abuses
Many of the factors, forces, or influences which make people vulnerable to drug use are also those which make people vulnerable to human rights abuses. Drug use is one factor which makes drug users more vulnerable than they would otherwise be to human rights abuses. By comparison, the rights of people who seldom or never use drugs are respected. People whose rights are abused, however, are marginalized, belong to minority groups, are of lower socio-economic status, are less educated, and frequently, are inner-city residents. These characteristics do not cause the abuses, but place people at risk. In addition many of these individuals will exclude themselves from exercising their rights because they are marginalized, stigmatized, and discriminated against due to their drug use. They are often shunned or excluded, to the point where they are considered to be little more than pariahs. In the words of Justice Douglas of the Supreme Court of the United States, "To be a confirmed drug addict is to be one of the walking dead."299 In September 1990, Los Angeles Police Chief Daryl Gates testified before the U.S. Congress that "all casual drug users ought to be taken out and shot."30"
As a result, drug users are often hidden from society; whatever opportunities they may have to exercise their rights are likely to be imperiled or endangered if they were known to use drugs or to have a criminal record because of their drug use. This identifies a dominant feature of vulnerability to human rights abuses, namely, the extent to which drug users are stereotyped, stigmatized, and scapegoated, and its impact on their autonomy and opportunities to exercise their rights.301 This, in turn, points out the strength of the moral inadequacy, personal inadequacy, and social control models of drug use to promote and reinforce these responses.
C. Drug Use as a Disability
One study found that over seventeen percent of disabled people worldwide have disabilities attributable to "chronic alcoholism and drug abuse."302 Despite the magnitude of this problem, there is a silence about whether drug use itself is disabling.303 This raises two concerns. The first concern is whether people using drugs can be considered disabled when their disability is attributable to their drug use,304 and if so, what specific conditions constitute such a disability.305 The second concern is whether drug use can exclude drug users from being considered disabled. This poses the question of when this might occur, and if it does, under what circumstances would it occur so that drug users would be deprived of protection that would otherwise be available to them were they not using drugs, or their disability was not attributable to their drug use. A third concern, not addressed in this Article, is that of disabling drug use by children or minors, and those in the care of parents, guardians, or the state.306
Considering drug users to be disabled when they use drugs in a manner that impairs their daily activities can be beneficial to them. First, people who are disabled receive special consideration in the law and public policy so that their rights will be respected.307 Thus, drug users will have opportunities to exercise their rights equal to those of everyone else in their society.308
Drug users are often vulnerable to abuses of their rights because of stereotyping, stigmatization, and discrimination. Being disabled com-pounds this vulnerability, so that the protection afforded disabled individuals would help individuals to secure their rights, as well as help to reduce these harms. Hopefully, it would also restore their autonomy and self-esteem, thereby decreasing their vulnerability to use drugs and having their rights jeopardized or violated.
1. Disabilities Attributable to Drug Use
There are three situations where drug users could be considered disabled. The first situation includes people who are ill and use drugs to treat their illness. For these individuals, their illness, unrelated to their drug use, impairs them to the point that the illness seriously interferes with their daily activities.309 The second situation includes drug users who develop disabling illnesses that are indirectly related to their drug use. For example, drug users can develop infections, have mental disorders unmasked, or experience toxic manifestations from their drug use.31" The third situation includes drug users who develop disabling illnesses that are directly due to their drug use. This could include, for example, dementia, seizures, or profound dependence because of compulsive drug use and the health deterioration which is associated with this compulsion. Considering drug use to be a disabling condition is supported by the following observations. First presuming that a drug users impairment would satisfy the criteria for being disabled, then someone with that condition would be considered disabled were he or she not a drug user. Second, many international and domestic legal instruments emphasize the importance of the treatment, rehabilitation, and social reintegration of drug users31l-interventions reminiscent of those for other disabilities.
Third, drug use is widely viewed as a chronic, relapsing but treatable condition. Methadone maintenance reinforces this view of drug use, as does the contemporary understanding of the neurological mechanisms that underlie drug use, including permanent or long-lasting neuroadaptation, withdrawal, frequent relapses, and the rapid return of dependence when abstinent individuals are reexposed to drugs.3l2 Fourth, the absence of a physical or visible impairment would not exclude drug users from being considered disabled because there are a variety of chronic diseases that are accepted as disabling. Among them, for example, are mental health disorders, 313 diabetes, 314 and HIV infection. 315
The conditions that impaired drug users would have to satisfy to be considered disabled are identical to the conditions that anyone must satisfy to be considered disabled.3l6 However, it is likely that additional criteria specific to drug use might also be necessary. These criteria might include, for instance, limiting disability status only to (1) drug users with permanent or chronic impairments, excluding persons who are merely intoxicated, transiently incompetent, or otherwise not disabled; (2) those who exhibit dependent, compulsive drug use (those who need chronic treatment such as with methadone maintenance); (3) those who are actively using drugs, thereby excluding people when they are abstinent;3l7 or (4) those with particular impairments such as persistently diminished attention, concentration, memory function, inanition, homelessness, or unemployability.
2. Drug Use as an Exclusion from Disability Protection
Opposite the question of whether or not drug use itself can be considered a disabling condition is the question of whether or not drug use can be a basis by which drug users can be deprived of disability protection that would otherwise be available to them. In the United States, for example, the Rehabilitation Act of 1973 extended protection to current drug users3l8 insofar as their drug use did not affect their job performance.3l9 Subsequently, the Americans with Disabilities Act of 1990("ADA") expressly excluded drug users from its protection.320 The ADA also amended the Rehabilitation Act of 1973 to exclude any current illegal drug user as an "individual with handicaps."32l This was done to deter illegal drug use and to punish those who currently use drugs illegally. It was an intentional result ¢f U.S. social policy, a politically expedient response to moral forces within that country. It was not an idiosyncratic response to the drug use problem in the United States. In 1994, a bill was introduced in the Senate to strip drug users of the benefits of disabled drug users whose disability is based upon alcoholism or "drug addic-tion."322 These responses are a forceful illustration of the impact of stigmatization and scapegoating of drug users323 and the moral inadequacy model of drug use.
D. Drug Use and Human Rights Infringements
Drug use can trigger a wide variety of human rights infringements, especially when the rights of drug users are considered unworthy of respect. This occurs primarily because of prejudice and stigmatization, and it is perhaps the most frequent basis of wrongful discrimination against drug users.324 Infringements on the rights of drug users may sometimes be justifiable.325 Therefore, they will be necessary, legitimate, and proportional to the benefits, risks, and harms related to the infmmgement.326 All too often, however the justification for infringements is questionable and sometimes based upon prejudice, ignorance, stigmatization, or attempts to scapegoat drug users, rather than upon a legitimate public interest.
Governments may claim that a right has to be infringed on the basis that international and domestic law makes the production, manufacture, export, import, distribution of, trade in, use, and possession of certain drugs illegal.327 They may argue that state intervention is necessary and claim it is justifiable in order to comply with international law (i.e., that controlling drug use necessitates infringing rights).328 At other times, a government may view the harms from drug use to be "excessive," and in order to prevent or reduce these harms, may argue that controlling certain drugs and drug users is necessary and thus justifiable.329 The likelihood of this happening increases with the incidence and severity of the harms resulting from or associated with drug use and drug trafficking, particularly violence and crime. It has even been claimed that drug use is a serious threat to national security.330 One consequence of this view is that governments may jeopardize or threaten the rights of drug users in order to deter people from using drugs, thereby reducing the demand for drugs. This may happen directly where people are subjected to arbitrary searches, drug testing, detention, or seizure of their goods. It may also happen indirectly, for example, when drug users, as in the United States, are expressly excluded from federal disability protection.33l At other times, governments may claim that drug use is a public health crisis332 and that infringements are justifiable because they protect people from these health harms. The promotion and protection of public health has often been invoked as a basis to justify the infringement of rights with regard to infectious diseases, such as sexually transmissible diseases.333 While public health structures are becoming increasingly involved in responding to drug use, public health laws rarely address drug use other than to regulate smoking and drinking, and only sometimes in a health promotion context.334 The dominant legal response to drug use in many countries is through the use of the criminal law, which is often the sole instrument used.335 Consequently, legal norms pertaining to drug use are rarely found in health law.336
Surprisingly, international treaties and conventions relating to drug use do not appear to have been scrutinized formally for their compliance with international human rights standards.337 A similar trend appears in most national legislation.338 Furthermore, human rights jurisprudence relating to drug use does not appear to have been analyzed to any appreciable extent.339 In part. this may have developed as a result of the contemporary discourse regarding the control of drug use. Much of this discourse has focused on the effectiveness of let Cal and public policy measures to control drug use, rather than on whether the legal and public policy responses are justifiable and compatible with human rights standards. The majority of these discussions have concluded that the harms created by present legal regimes could be substantially reduced. Furthermore, the legal regimes have created avoidable harms for little documented benefit, despite the fact that little, if any, harm would have been present otherwise. In doing so, governments have suffered opportunity costs, including foregoing health promotion approaches that could reduce the demand for drugs.340
When laws and policies pertaining to drug use are not scrutinized sufficiently to assess their compliance with human rights standards, it is only possible to emphasize the urgent need for such analysis and to suggest issues in need of further study.341 Illustrative of the need for heightened scrutiny is the fact that most countries have already implemented control policies that have potential impact and often adverse impact on the human rights of drug users. Again, it is only possible to point to some of the situations in which such infringements might, and presumably do, occur under the current laws and policies relating to drug use.342 Among these situations are the following:
(1) detection of drug users which includes breaches of privacy; absent or diminished data protection and protection against self-incrimination; mandatory or compulsory medical examination or drug testing; and the compatibility of registers of drug users with human rights protection;
(2) integrity of persons which includes absent or diminished due process; arbitrary searches, seizure, arrest, or detention; and mandatory or compulsory treatment;
(3) criminal justice procedures which includes interference with the presumption of innocence and rules of evidence; absent or diminished protection against self-incrimination; and the use of special rules and practices relating to of-fenses committed while intoxicated;
(4) detention which includes arbitrary arrest, detention, or imprisonment; absent or reduced access to medical and social assistance when in detention; absent or diminished protection against cruel, inhuman, and degrading treatment; and arbitrary or excessive sentencing policies and practices;
(5) health care which includes absent or reduced availability to care and treatment, including methadone maintenance, rehabilitation, and social reintegration; and absent or reduced availability of and access to preventive measures, such as clean needles and syringes, methadone maintenance, counselling, and education;
(6) employment which includes arbitrary or discriminatory drug testing policies; absent or reduced work or promotion opportunities; unjustifiable dismissal; and absent or reduced accommodation of disabled or handicapped persons who use drugs;
(7) housing which includes absent or reduced housing opportunities; unjustifiable eviction; and insecure tenure;343
(8) education which includes absent or reduced opportunities for public, private, technical or professional education; (9) mobility which includes arbitrary or discriminatory exclusion from immigration and travel; and unjustifiable searches and enquiries;
(10) insurance which includes absent or reduced eligibility for life, disability, or health insurance.
Wrongful discrimination is another, more pervasive infringement of human rights affecting drug users.344 To a great extent, wrongful discrimination is directly related to the profound stigmatization of drug users.345 One impact of such discrimination is readily apparent in the Americans with Disabilities Act of 1990, which expressly excludes disabled persons presently using drugs from its protection.346