David R. Henderson  

Mark Kleiman on Responsibility

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In the video on this page, economist Mark Kleiman, whose expertise is on the drug war, tells of an interesting approach taken by a Hawaiian judge to make people keep their promises not to use illegal drugs. If I were in this judge's position, I might end up doing the same. But what I found interesting is Professor Kleiman's idea of responsibility. At the 3:27 point, he says, "He [the judge] addressed them as adults and told them they had failed to take responsibility for their own lives."

But the judge and possibly Mark Kleiman [because Kleiman doesn't contradict the judge's statement] miss the point. By stepping in and making these drugs illegal, the government has taken away responsibility from people. The judge uses the term "responsible," and Kleiman seems to agree, to describe people who keep their promise, made under duress, not to use drugs. Those who don't keep their promise, according to the judge, are not responsible. That's a strange idea of responsibility. I could be completely responsible and take illegal drugs. But the judge's view of responsibility precludes this.


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CATEGORIES: Economics of Crime



COMMENTS (11 to date)
scott clark writes:

DH,
The drug war has revealed the criminal justice system to be a complete joke. Imagine if you were in court and heard the judge say this and you responded as logically as you did above. You could be found in contempt of court, your contempt being totally justifed, and now you're back behind bars.

Blackadder writes:

I don't think I grok the notion of responsibility you are relying on here.

William Barghest writes:

I think responsibility is something like conditional authority to perform a duty. If one can use drugs in a way that does not interfere with one's duties then you are using drugs responsibly. However not everyone is capable of doing so, and I suppose the judge feels the people before him are not, so he is trying to constrain their freedom to act irresponsibly.

liberty writes:

I completely agree with David Henderson.

This is an example of how criminalizing personal consensual behavior (be it voluntary exchange or other private behavior, choice, or contract) undermines our understanding of personal responsibility and equality before the law.

Imagine the government had banned the purchase by Asians of fish from farmers markets, but some Asians like fresh fish and disobeyed the law. If they broke the law, would this represent irresponsible behavior - or simply illegal and perhaps "rebellious" behavior? There is a difference. Who's to say these people were irresponsible?

Another kind of example of how these laws undermine our societal understanding of personal responsibility is self-defense versus violent attack. The two are treated nearly equally in the UK ever since private gun ownership was banned, despite one being perfectly responsible and ethical, and the other being distinctly otherwise.

A third example, slightly different policy issue, is theft and the political class--while those in the private sector that steal (be it white collar theft or street theft)may be treated harshly, those in politics can steal freely--I don't mean by levying taxes, I mean embezzling for private gain, see e.g., Charlie Rangel, sometimes for campaign contributions, sometimes for cheap mortgages for themselves, etc--and act as if they are being responsible because frequently they do not break any law.

Ted writes:

One could argue that being a responsible member of society entails abiding by the laws of the country you live in, whether or not you agree with them. I consider that part of being a responsible individual in the case where a law is at least somewhat reasonable, even if it is still dumb (like drug laws).

David R. Henderson writes:

@Wiiliam Barghest,
I don't think so. The judge was saying they were responsible for simply using illegal drugs, regardless of the effect of those drugs on their other behaviors.

Eric Falkenstein writes:

Well, I usually agree with you and don't comment, so take this as a compliment!

You may not like certain laws, but obeying them is a responsible thing to do nonetheless. You seem to be assuming that laws were created after the fact. Further, most criminal drug offenses are plead-down crimes for people involved with public intoxication, burglary, assault, and other quality of life issues. It's rare that peaceable, otherwise responsible drug-users end up in the criminal justice system.

Take an example. Most college freshmen drink alcohol illegally, and campus police could administer a breathalyser and arrest most kids every weekend night. However, the few that cause trouble are arrested for at least under-aged drinking. It's a mechanism for arresting people when 'being a jerk' is too hard to prove in court, even though it's real and those getting busted generally are way out of line.

Radford Neal writes:

You may not like certain laws, but obeying them is a responsible thing to do nonetheless...

Take an example. Most college freshmen drink alcohol illegally, and campus police could administer a breathalyser and arrest most kids every weekend night. However, the few that cause trouble are arrested for at least under-aged drinking. It's a mechanism for arresting people when 'being a jerk' is too hard to prove in court, even though it's real and those getting busted generally are way out of line.

So I guess the bit about it being "responsible" to obey the law doesn't apply to police and prosecutors? Or do you see no contradiction between "obeying the law" and undermining the fundamental legal principle that the prosecutor has to prove that the accused is guilty, by making enough things illegal that they can always get them on something, even if it's not the actual reason that they're prosecuting them?

Steve W writes:

My understanding of Kleiman's work is that they are dealing with people on probation or parole hearings with one conditional element of that probation being that they comply with randomized drug screenings. So far as I can tell, what Kleiman seems to be suggesting is that we should be doing something like this instead of more severe penalties (prison sentences) to achieve the same end goal: crime and/or harm reduction.

Given that they have been caught, charged, and convicted of some other criminal act, the question of responsible drug use is more of a symptom of greater irresponsibility than a cause. There are clearly some substances which may be used with frequency by "less responsible" people, some of which are perfectly legal as with alcohol.

I make no assumption myself that it is the substance that causes this irresponsibility in all cases so much as the user. Obviously many people use illegal substances without committing violent or inappropriate acts as a consequence of their mind-altered states. But if we are dealing with a demonstrated record of such irresponsibility, as the judge and Kleiman seem to think is the case, it might be "responsible" for the state to overtake some forms of liberties to protect others against the external effects of their private choices. If this action of a minor reduction in liberty on the part of petty criminals (by requiring drug testing) produces less actual criminal behavior than an alternative of incarceration or more severe and invasive monitoring programs, the argument goes, it might be worth it.

A lesser argument might be that this would be a cheaper method of dealing with drug addiction or compulsive behavior than incarceration and interdiction, to deal with strictly problem users who are captured in the criminal system and provide legal penalties and incentives to clean up their use.

Liam writes:

@Eric Falkenstein.

You wrote: You may not like certain laws, but obeying them is a responsible thing to do nonetheless. You seem to be assuming that laws were created after the fact.

I can't recall any law that was created before the fact. Laws are reactionary and typical of the Government doing things "for our own good". David's point being (and correct me if I'm wrong here David) you can still be a responsible person and take drugs. It is the Government who claims we are irresponsible since we do not confirm to their standards of responsibility.

You also wrote: It's rare that peaceable, otherwise responsible drug-users end up in the criminal justice system.

It's rare? Really? How many people have been arrested for simple marijuana possession? You can argue that they only typically receive a minor penalty however, in Canada where I am originally from, if you have a criminal conviction you are not eligible to apply for a passport unless you receive a Queen's Pardon. (I do not know how the US applies this law) So from a simple act which is deemed irresponsible I am now a prisoner within my own country. And please don't get me started on the three strikes law where possession has ended with life imprisonment.

The simple truth is that when the Government infringes on our freedoms and rights they define responsibility completely differently than I do and in some cases with indifference to the opinion of the majority.

I have always been amazed by the ban on smoking in all public places and many private places. Buying and consuming cigarettes is a perfectly legal thing to do. I am not a smoker but I believe I have the right to choose to be one if I wish. There are differences between rights and freedoms. You have the right to work in a smoke free environment but I am free to smoke. If I own a business that allows smoking then you are free to choose not to work there and not to do business with me. But that's not the case for any business in California. And they justify that using "responsibility".

Eric Falkenstein writes:

Liam:

You also wrote: It's rare that peaceable, otherwise responsible drug-users end up in the criminal justice system. It's rare? Really? How many people have been arrested for simple marijuana possession?

I know about 20 people who have smoked pot regularly for their entire lives(40+) and none of them have been arrested or otherwise involved in our legal system. I'm sure it happens, it's just rare that someone who merely smokes pot gets arrested for possession. It's should be a big concern for libertarians.

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