Families and Friends for Drug Law Reform

committed to preventing tragedy that arises from illicit drug use


In Search of What is Right: The Moral Dimensions of the Drug Debate

by
Bill Bush & Max Neutze 1

ABSTRACT: In much of the debate about drugs participants seem to talk past each other. Very often this is because they come with different moral values. This paper suggests that because what is at issue is a community response to a major social problem it is important to take moral values seriously if the debate is to be advanced. There is scope for proponents to scrutinise the moral positions of themselves and others. Many of the disputes about what measures will or will not be effective are only understandable if underlying moral positions are acknowledged. The paper suggests a framework for the discussion of these issues.

1 Introduction
   1.1 Plan of paper
2 Underlying moral attitudes to drug use
   2.1 Freedom of choice: the libertarian position
    2.2 Drug use as intrinsically wrong
  
     2.2.1 Permissible assistance to drug users
         2.2.2 Which drugs is it wrong to use?
         2.2.3 Moral fault and the reasons why people take drugs
  
   2.2.4 Role of forgiveness
        2.2.5 Factual considerations impinging on whether drug use is wrong
   2.3 Addiction as wrong
    2.4 The middle ground: drug use and individual and community welfare
   2.5 Obligations on those holding different moral positions
3 Morality and assessment of measures to combat drug abuse
   3.1 The rules of moral debate
    3.2 Politicisation of the investigation of efficacy
  
     3.2.1 Supervised medical maintenance of heroin
  
    3.2.2 In principle opposition to heroin maintenance
  
    3.2.3 Objections to trialling
         3.2.4 The unfair burden: want of proof as an invalid criticism
  
    3.2.5 "Sending the wrong message"
         3.2.6 Dilemmas: protection of the innocent
  
    3.2.7 Hitting rock bottom
   3.3 Political constraint on academic research
   3.4 An obligation to become informed
4 Morality and legal prohibition of drugs
   4.1 Is drug taking immoral because the law makes it illegal?
   4.2 Does morality require the legal prohibition of drugs?
  
     4.2.1 History of the relationship of morality to prohibition
        4.2.2 Moral condemnation and state tolerance
   4.3 Criminal prohibition and treatment of the addicted
   4.4 Coerced treatment
5 The drug debate and other social issues
   5.1 Comparative moral complexity
   5.2 Misleading analogies
6 Conclusion
        Footnotes

  1. Introduction
  2. While some argue that the drug problem is a health and social issue, not a moral one, others, including the Sydney based Eastern Command of the Salvation Army and more recently the Vatican Congregation of Faith, assert that our response to the drug problem must be shaped by moral considerations. That one camp proclaims it a moral issue which another denies is but one of the main reasons that the protagonists are talking past each other.

    Involved as one of us have been with drug debate we are among the protagonists. It is out of that involvement that we would like to suggest a framework within which it would be useful to conduct the debate. This requires an understanding of the moral position of parties that is seldom articulated. If it is, the position is generally linked to religious beliefs – largely Christian in the Australian debate. The search for a framework for discussion of morals will therefore involve some analysis of ethics flowing from religious beliefs. To some this may be grating or impudent: grating for those who reject any religious belief and impudent for those whose position we seek to analyse while not being an adherent of their particular persuasion. For this we make no apology. If the community’s drug debate is not to be a dialogue of the deaf we must try to enter the world view of others; to do so it is necessary to understand, as far as possible, where people’s moral positions differ and what, if any, scope they see for reason and empirical research in the formulation of their positions.
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    1. Plan of paper

    The paper will first identify the moral positions that are proclaimed or implied in the debate. The extremes are pitted against each other. On the one hand, those who regard it as wrongful to prohibit someone’s behaviour that harms no one else oppose prohibition. On the other hand there are those who justify prohibition because they regard some drug use as inherently wrong. Others reach the same conclusion because they regard addiction itself as wrong. In the middle there are many who do not regard any of the extreme positions as valid. Their starting point is a moral position that does not focus upon drugs, namely that we should promote individual and community welfare. They do not regard drug use or addiction as inherently wrong but as undesirable in so far as it reduces individual and community welfare.

    Because what is at stake is a community response to the drug issue, the moral positions that inform our stand should be open to scrutiny. They are amenable to that scrutiny because they are formulated in a language which, of its nature, involves concepts shared by those who use it. Those who propound a position should carefully examine its scope and consistency with more general moral propositions from which it flows. Others who do not share the same beliefs are entitled to scrutinise and question moral positions and how they are derived.

    The next part of the paper (part 3) turns to the role of empirical assessment in the drug debate. A central issue is what counter measures we should take. Assessing the efficacy of measures is relevant to all moral positions but most obviously to the middle one; exactly how is it that drug use works against individual and community welfare and what measures will best promote that welfare? These are essentially empirical questions. The answers to these questions and their implications form the bulk of the drug debate.

    The paper seeks to identify a set of rules of moral debate. Such rules are often broken. Examples will be given of misleading arguments used to dismiss or distort the implications of research results. One example is criticism of the results of an assessment ostensibly on grounds of its inadequacy when, however well conducted, the results would be morally unacceptable to the critic. Arguments of this nature make it difficult to have a constructive debate informed by research.

    In part 4 attention is turned to one measure: the use of the criminal law to prohibit some drug use. What exactly is its relationship to the moral positions that regard some drug use or addiction as inherently wrong? To what extent are we obliged to continue prohibition because it is the law? This part ends by looking at some measures that are being introduced to ameliorate the rigours of the criminal law in its application to drug or drug-related offences.

    Finally, in part 5, the paper considers some parallels between moral aspects of the drug debate and other social issues such as abortion.

    The overall purpose is to provide a framework within which moral issues relating to drugs are discussed. It is undertaken in the hope that greater transparency will advance the debate and may even result in some common positions. The paper thus concentrates on the formulation of moral positions and the implications of each for the choice of measures to combat the drug problem. Possible measures such as heroin maintenance are used in various contexts only to illustrate the framework for debate; the paper does not attempt a systematic examination of any measure.
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  3. Underlying moral attitudes to drug use
  4. The first step must to be to acknowledge that moral positions play a fundamental role in the community’s response to drugs. This is not to say that everyone’s response is shaped by morality. Fear, revulsion and other emotions have a huge influence. Even so, within this charged environment the many appeals to morality have strong influence. When pressed, many governed by fear would readily associate themselves with moral condemnation of some drug use. Those whose personal or professional life bring them to witness more and more instances of addicted users suffering social isolation, poor health, and dying are likely to swayed by feelings of sympathy and frustration. Many (though far from all) of the latter are likely to be attracted to moral positions that emphasis compassion rather than condemnation.

    Thus, those who support or oppose "supervised injecting rooms" or "shooting galleries" (to use opposing, value laden, terminologies) are likely to do so on moral grounds. The supporters and opponents justify their positions using different reasons.

    • Some would approve the facilities as a tentative step towards permitting people to indulge safely in an activity that should be permitted. (Our sense is that there are not many who hold to such a view and that most supporters of the injecting facilities would regard drug use as undesirable.)

    • Others would approve because the facilities are necessary to achieve the moral good of keeping people alive and in the best achievable health. Others, taking the same moral position, might oppose injecting facilities on the ground that they would not achieve that moral good or that other measures are better able to do so.

    • Others are opposed for the straightforward reason that those facilities contemplate either the continuation of the activity of drug taking which is inherently wrong or the maintenance of a condition, namely addiction, that is morally wrong. Their opposition is likely to be fuelled by the arguments of supporters at the other extreme who see the facilities as removing restrictions on an activity that should be permitted.

    This quick sketch illustrates what we think are the four moral positions evident in the drug debate. These are:

    • a libertarian position that people should be permitted to indulge in activities that do not cause harm to others and that this applies even when those activities may harm the person carrying them out;

    • a position that some drug use, however defined, is inherently wrong;

    • a related position that addiction is wrong; and

    • a middle ground that has no particular view on the morality of drug use as such but holds that drug use is undesirable when its use reduces individual and community welfare.

    These are but rough sketches of the various moral positions. Indeed, perhaps they are more appropriately described as four groupings of moral attitude. Important differences within and between each, flow from the broader value system in which people enunciate each of the positions; as stated here they seem to hang disembodied in space.

    The religious belief of the proponent will shape the value system. Flowing from that belief will be attitudes about the purpose of human existence such as making oneself God’s temple or, in Bhuddist terms, achieving enlightenment. This in turn may hold up a utopian vision about human behaviour, such as one that reflects Christ’s injunction to love one’s neighbour as oneself. From this, other positions such as the four mentioned, might flow.

    The moral dimension is often shrouded for protagonists who regard themselves as non-religious but the non-believer who conceives of a moral obligation to care for the life and welfare of an addict will do so in the context of a value system albeit one founded on humanist considerations. Such a context will also include views about the purpose of existence and of idealised standards of human behaviour linked to that purpose. Thus, good parenting, rewarding endeavour or good citizenship may be seen as purposes within which context drug taking may be considered undesirable. A libertarian may look on self fulfilment as the purpose of life within which drug taking would be permissible.

    Because of these contexts, the debate on morality and drugs will not proceed in the same way as a legal argument about the interpretation of a statute. This is immediately evident in the middle ground argument under which drug use is not inherently wrong but is wrong only to the extent that it reduces individual and community welfare. Similarly, almost always, the person who declares that some drug use is inherently wrong, will be willing to justify that position by reference to his view of the purpose of existence or at least from more general positions flowing from that purpose.

    The scope for debate about drugs and morality is thus extensive. It embraces the basis of the moral positions involved, the scope of each and the impact of any proposed measure, such as an injecting room, on the achievement of their preferred position. At this lowest level the short description given earlier of opposing positions on injecting rooms suggests that there is much common ground in the moral positions of supporters and opponents. Upholders of the middle ground will be found on both sides. They may argue about the balance of individual and community welfare and what will promote each. Nearly all the opponents of injecting rooms who regard some drug taking as inherently wrong will deny that proponents have a monopoly of concern to protect life and welfare. In that case the debate will generally be about whether or how it is possible to promote welfare in the context of continuing drug use.

    While the scope for moral debate may seem daunting, in fact it provides extensive opportunities for people to find common ground. If the atheist and the devout Christian cannot discuss meaningfully the basis for the human conduct that each would like to see, they can at least compare the contents of their visions of the good life. Their moral attitudes to drugs that flow from those visions can be questioned and compared without the need for either to compromise his or her fundamental belief. All this precedes the obviously legitimate discussion that should take place about the appropriateness of measures that might further the moral positions of each regarding drugs. This broad scope for dialogue forms the background for the following brief discussion of the implications of each of the four moral positions.
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    1. Freedom of choice: the libertarian position
    2. Libertarians generally argue that drug use is not immoral. Those who wish to use drugs should be permitted to do so and the community has a right to restrict use only where that use may injure others (e.g. in driving under the influence) but not where the only risk is to users themselves. One of the numerous ironies of the debate is that many of the strongest opponents of such a "liberal" position are themselves strong advocates of individual freedom of choice in other aspects of human endeavour such as economic activity.

      Those who view drugs as morally wrong are inclined to see the libertarian position as a licence for indulgence. Were it to be accepted as the guiding moral principle, opponents of the libertarian position might be surprised at the complexity of subsidiary moral qualifications (and potential restrictions) that surround it. The question of whether an activity harms others is usually debatable. While a libertarian may make the empirically testable assertion that most harm to others such as stealing and family trauma, flows from their illicit status rather than use of the drug itself, the use of some drugs can cause behaviour harming others. For example, a possible long-term effect of amphetamine use is that "intense and sudden acts of aggression can occur."2 Furthermore, the community has to bear the financial costs of health care and welfare support arising from injurious drug use.

      Even if the only people harmed are users themselves, the libertarian will still have to argue which measures should be taken to discourage use. They might extend from regulation of strength and purity, through health warnings like those used for alcohol and tobacco to non-commercial supply by government or, as some suggest for marijuana, permitting cultivation and possession of small quantities for personal use.
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    3. Drug use as intrinsically wrong
    4. The moral position that some drug use is inherently wrong is often justified in Christian theological terms such as those of Rev. Cec Schloss of the Uniting Church in an address before the Prime Minister in Brisbane in March 1998. He referred to St Paul’s rhetorical question: "Don’t you know that you yourselves are God’s temple and that God’s spirit lives in you?" "Drug abuse," added the minister, "is one clear visible form of devaluing the worth of an individual."

      Like many others, the minister here referred to "drug abuse" rather than "drug use" generally. Few would maintain that all drug use is wrong but for clarity here we avoid the term "drug abuse" because a fundamental enquiry is what drug use amounts to "abuse". Until that is clarified the position "drug abuse is wrong" is as circular as "wrongful drug use is wrong".

      Like the libertarian argument, the position that some drug use is inherently wrong also raises complex issues. What sort of assistance to continuing users is consistent with the position? Which drugs is it wrongful to use? People take drugs for different reasons. Are these different reasons relevant? Even where drug use is wrong, what role does forgiveness play?
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      1. Permissible assistance to drug users
      2. To what extent is the position that some drug use is wrong consistent with any "assistance" to drug users that involves co-operation with them in their continued wrongful activity? This goes to the heart of so-called "harm minimisation" involving measures such as provision of sterile syringes, advice on making drug use as safe as possible, medically supervised injecting places and, for some, even the medical prescription of the artificial opiate, methadone, at maintenance levels. A range of responses is possible. Mr Paul Brazier, head of the Australian Catholics Advisory Centre, illustrates a strict one. He has written in the Brisbane Courier Mail (1/11/99, p. 15) of supervised injecting rooms that:

        "Heroin injecting is intrinsically evil and providing heroin injecting rooms with all the impedimenta that goes with them is formal co-operation in the evil acts of others and can never be justified"

        In contrast, Prof. Geoffrey King SJ has described in Eureka Street of December 1999 circumstances in which it is permissible to co-operate with an evil.

        "Mediate material co-operation [which he describes] can be moral when undertaken for a proportionately serious reason and when scandal (in the technical sense of leading another into morally wrong behaviour) can be avoided."

        Those holding to as strict a view as Mr Brazier are still likely to endorse (and indeed regard themselves as morally obliged to provide) assistance like detoxification services and abstinence rehabilitation to drug users that does not involve moral co-operation with drug use. Drug use does not negate an obligation to protect the life and welfare of those addicted. Shocking as it may seem, even that latter position is frequently denied on talk back radio and letters to newspapers. In November 1999 Judy Sheindlin described as America's most popular television judge, is reported to have told a cheering audience in Brisbane that we should "Give 'em dirty needles and let 'em die" (Courier Mail, 17/11/99, p.12). A less callously phrased expression of the same idea is the notion that anyone who embarks on drug use knowing its dangers and in the face of community disapproval is not deserving of sympathy or help when she becomes addicted.
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      3. Which drugs is it wrong to use?
      4. A bundle of issues surround the definition of what is forbidden. We have described the moral position in broad terms: "Drug use is inherently wrong." A narrower formulation is obviously required. What drugs are we talking about and what is the wrong use of them? Pharmaceuticals are, of course, drugs. So are alcohol and nicotine and other constituents of tobacco. So are coffee and tea. Defining wrong use as those drugs that are presently illicit does not help; it simply refers to the law for an answer to a legitimate moral enquiry.

        If heroin use is wrong, why is it permissible in order to relieve pain for a doctor to administer morphine – a form of opiate into which the human body rapidly metabolises heroin? The answer will probably be that the drugs are taken for different purposes, but the question shows that it is impossible to draw a line on chemical grounds between acceptable and unacceptable drug use. The range of drugs in legitimate medical use, including antidepressants, shows that a drug should not be unacceptable just because it is intrinsically "mind altering", addictive, pleasurable or even productive of harmful side effects.

        The reason for taking a drug is more likely to be relevant. This is examined below, but to say that it is wrong to take a drug for pleasure or to change mood at once raises the issue of the use of widely used drugs like alcohol and tobacco that are taken recreationally. What, for example, is the basis for the distinction that the Catholic Church draws between them. In its 1995 charter, the Pontifical Council for Pastoral Assistance to Health Care Workers quotes Pope John Paul II as stating that "From the moral viewpoint ‘using drugs is always illicit, because it implies an unjustified and irrational refusal to think, will, and act as free persons.’"(94) In contrast, "alcohol is not in itself illicit: ‘its moderate use as a drink is not contrary to moral law.’ Within reasonable limits wine is a form of nourishment. ‘It is only the abuse that is reprehensible’" (97). "In regard to tobacco as well, the ethical illicitness is not in its use, but in its abuse" (99). As health statistics show, alcohol and tobacco are addictive (nicotine particularly so) and damaging – smoking in almost any quantity. Indeed, some societies – Iran was one – have regarded lectures by alcohol imbibing westerners against use of drugs like opium as hypocritical.

        The usual answer to this charge of inconsistency is to admit that alcohol and tobacco are bad enough but that is no reason to make things worse by legitimising other damaging drugs.

        The consequences of this argument are very important indeed. It makes it hard to maintain that drug use is inherently wrong. Opposition has to be based on avoiding action that undermines our own welfare and that of the community. It forces reliance on the moral principle of the middle ground. The focus is no longer on the physical act of drug use (however defined) but:

        • the identification of the effects of drug use on the welfare of the user and the community, and

        • the largely empirical question of what measures to reduce drug use will promote that welfare.

        These issues are discussed in part 3.
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      5. Moral fault and the reasons why people take drugs
      6. Wrongfulness depends not only on the physical act of drug use but the motives of the person who takes it. Drug taking can be morally wrong only when someone chooses to do so. Moreover, even when freedom of action exists, there may be constraints that may absolve or reduce culpability. The woman in Canberra who was murdered at the instigation of her police officer husband by being forcibly administered heroin was guilty of no wrong. This would be so even were there a divine injunction against heroin use such as there may be in the Koran against alcohol. On the other hand, the conduct of anyone trying out a drug for curiosity and using again just because they enjoy it would entail maximum moral responsibility.

        There is a gradation of typical circumstances between the two extremes. Is the degree of moral fault reduced for users such as children and those with a mental disability who are not fully responsible for their actions? Does peer pressure that often operates on young people to use drugs affect the moral quality of their action? Another intermediate situation is use of a drug to blot out something unpleasant such as the prisoner in a barbaric prison regime who regards a day off his mind as a day off his sentence. If that is not a sufficient excuse what if the person takes the drug to obtain relief from an abusive relationship, severe financial stress or to cope with depression or other mental or physical condition? This is in the nature of self medication. While the action may be misguided and damaging to health is it morally reprehensible? There would be even less freedom of action if the person took the drug because they had become addicted. The influence of addiction to illicit drugs is illustrated by the extent to which many are prepared to wreck relationships, steal, lie and commit violence to obtain the wherewithal to feed their addiction.

        Addiction might be seen to constrain a person’s freedom of choice and thus may mitigate to some extent moral responsibility for drug use. The wide range of reasons for drug taking thus embrace a range of different circumstances relevant to individual moral responsibility for taking the drug. If this increasing constraint is relevant to moral responsibility one more irony is indicated: maximum moral responsibility is entailed by action that may seem most frivolous, namely, use by the typically young person who will often take up readily available drugs for reasons of curiosity and adolescent experimentation.
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      7. Role of forgiveness
      8. Within this varied landscape, doctrines such as the Christian concept of forgiveness become relevant. One often hears the view that a user should not be exonerated from the consequences of his actions because he ought to have been well aware of what was likely to happen: the user had his chance, blew it and must face the music. Such an attitude leaves little scope for forgiveness. Sin is ubiquitous as shown by the allegorical truth of the fall from grace. The Christian promise is that anyone – no matter how far down a path of sin –will be forgiven if he or she confesses and repents. Indeed, Archbishop Pell has referred to one of two moral tasks of every religion as being "to provide structure for coping with human weakness through forgiveness and the call to conversion, again and again." (Age 18/11/99 p. A19).

        Typically an addicted user will have relapsed after trying many times to give up. Addictive drug use also often causes the user to suffer. From a Christian perspective is the moral blameworthiness of drug taking to be judged from the stand point of an original decision taken freely (increasingly by children in their early teens) or from the perspective of a user who tries to give up and fails because of addictive compulsion? The account of Jesus and the woman taken in adultery bears upon this question. According to the law she should have been stoned. Jesus invited any of her accusers who was without sin to throw the first stone. All withdrew. He told her that he did not condemn her either and bade her: "Go now and leave your life of sin."

        This passage illustrates Jesus’ reluctance to judge the person. Indeed it questions whether from the point of view of Christian morality it is appropriate to judge a person however wrong their actions may be.

        "Jesus unconditionally identified with outcasts in his society. He did not . . . put conditions on forgiveness of the woman who was about to be stoned for adultery. He did not, of course, condone their actions. But he did not ostractise them or offer his love only on condition that they change their ways. Their contact with him opened up new possibilities for them to change and challenged them to make a decision about their lives. Similarly we should stand with those who are in need, even if their need is of their own making. People dependent on drugs are children of God; they are our neighbours and Jesus’ second commandment applies to them. If they want to give up their addiction, we can offer to help them. If they continue to take heroin they will still need our support and our sympathy because of all the problems that arise from addiction" (Neutze, The ACT heroin trial (Zadok Institute for Christianity and Society, Hawthorn, November 1997) pp. 6-7).

        The effect of this conclusion is strikingly similar to the position recently put by Hugh Mackay3 on secular grounds:

        "The only morally defensible position in a pluralistic, postmodern world is the position where we agree to respond to people’s need for help, even when we strongly disapprove of the activities that got them into trouble in the first place."

        Jesus’ bidding to the woman (after he had saved her from stoning and that he did not condemn her) is likely to have been behind Archbishop Pell’s statement that "Christ did not go around urging people to be careful if they could not manage to be good. He had a stronger belief in human potential." (Age 18/11/99 p. A19). "The church’s ethic," he added, "is not one of harm minimisation and acceptance of wrongdoing. It will continue to preach its vision of the moral life as seeking genuine human fulfilment and happiness in this life and, please God, in the life to come."

        The Archbishop thus appeals to the Christian vision of the good life in which wrongful drug use has no part. Such an appeal, while perfectly legitimate, still leaves unanswered what our reaction should be to someone who continues to "sin" and indeed whether in the circumstances a person’s continued drug use is a "sin". To assert, as Archbishop Pell seems to, that our reaction should not involve a measure of "harm minimisation" severely limits the range of morally acceptable assistance that may be provided to an addicted person who does not give up the addictive substance. Whether the act of continuing use of, say, heroin is wrong or, if wrong, whether its use may be justified because it prevents more serious wrongs should take into account the matters discussed in sections 2.2.3 and 2.2.5.
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      9. Factual considerations impinging on whether drug use is wrong

      The following are examples of the type of considerations that are relevant to the issue of moral wrongfulness of drug use. We must emphasise that they are examples; while we believe that the factual assertions are correct, they may not be. They illustrate the sort of matters that should be the subject of dialogue.

      A highly relevant factual assertion is that addictions arising from use of illicit substances like heroin are indistinguishable from addictions arising from the use of a wide range of other substances including some that are regarded as food. A characteristic of addiction is a tendency to relapse. This tendency places addiction within a family of chronic conditions where the object of treatment is to minimise harm. Indeed, given that our life is finite, a principal object of medical practice could be described as harm minimisation. What is more, much medical treatment is for conditions in part at least self-induced by the patient: the reckless driver injured in a road accident, the middle aged man with a heart condition, the diabetic whose condition has been brought on by an unhealthy diet and life-style.

      Many may have difficulty in accepting that treatment might involve continued use of a drug that was the problem in the first place. Even so, analogous practices exist. With the help of the legal artificial opiate methadone, many former addicted heroin users are able to maintain a normal life style. To prevent withdrawal symptoms, their medication is continued at a maintenance level similar to medication prescribed for sufferers of many other chronic conditions including cancers. Those who regard such a maintenance regime as wrongful would not find this fact persuasive but there are other considerations. The body’s reaction to many drugs changes with use. It develops tolerance that requires higher doses to achieve the desired effect. The object for the user of maintenance prescriptions of, say heroin, may change from giving a high to avoiding the unpleasant physical and psychological effects of withdrawal. The use of a substance to ward off the effects of the same substance is common in medicine, for example, inoculation. It is also a central concept of herbalist pharmacotherapies. To draw the analogy even further, in Buddhist thought craving is an impediment to the achievement of enlightenment. One effective way of tackling it is not to try and avoid it but to focus upon it and it will dissolve.

      In sum, those who regard drug taking as inherently wrong need to define the wrongful act in a way that is valid for the various reasons and circumstances that people use them and in the light of relevant factual considerations such as those just mentioned. If the conclusion is that it is impossible to distinguish whether or not drug use is wrong, then it should follow that the moral justification for taking action against drug use is that its use reduces individual or community welfare.
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    5. Addiction as wrong
    6. Perhaps the most severe moral position against drug use is that addiction itself and not just drug use is wrong. This has been explained by Major Watters of the Salvation Army as follows:

      "I believe addiction is a sin. I know it's a medical and psychological problem, but the Bible tells us that sin is falling short of our potential. It tells us we should not be mastered by things ... it also tells us to keep the body pure as it is a temple of the Holy Spirit" (War Cry, 22/5/99, p. 7).

      Like the other moral positions, the scope of this one bears close examination. Since it focuses on a condition, "addiction", rather than any particular action that causes addiction, it would follow that what matters is whether an action can lead to addiction. The addiction could have arisen from use of any of a wide range of substances such as chocolate the use of which is not generally regarded as wrongful. The Rev. Harry Herbert, head of the Uniting Church Board for Social Responsibility, even refers to addiction as a condition that may be unrelated to use of any substance:

      "It is worth saying that addiction to drugs is not the only addiction in our society today. Many are addicted to power, others to money, some to control, and even within our own Christian community there can be addictions" (statement 29/11/99).

      If it is impossible to distinguish addiction to drugs from other forms of addiction, why should different counter measures be prescribed for addictions to different substances or behaviours? Why, for example, is it permissible to use criminal sanctions and coercive measures like compulsory treatment for some, but not other substances? A failure to justify such differences on moral grounds implies that measures should be chosen that best promote the objective of eliminating or at least reducing addiction. This is similar to the middle ground of promoting individual and community welfare.

      Another moral problem that arises from the position that addiction is wrong is that such a wrong condition, as distinct from a wrong action, ignores the element of freedom of choice (see section 2.2.3). Freedom of choice arises only in the context of an action or thought that may produce addiction, not in the context of addiction itself. The situation is similar to someone who suffers brain (or indeed other) injury in a car accident. That condition is not blameworthy even though it may have been the product of blameworthy conduct (reckless driving) of the person now suffering it.

      This strongly suggests that those asserting that addiction is wrong are really intending to say that addiction is a consequence of a wrong act (a "fruit of sin"). If this is correct, they should be classed with those who assert that some drug use is inherently wrong. Viewed in this way, the notion that addiction is wrong is no more than a reflection of an ideal of human conduct such as the Christian good life. A related Christian image is the parable of the talents hinted at by Major Watters. Conduct that leads to addiction is a waste of God given talents that prevent us reaching our potential.
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    7. The middle ground: drug use and individual and community welfare
    8. Between the libertarian and condemnatory views of drug use sits the view that drug use is undesirable in that it harms individual and community welfare. This is the moral position we share and is, we suspect, the one most widely held.

      In ways mentioned at the beginning of part 2, the position of the middle ground may, like others, be validly held by those with different or no religious beliefs. The same passage also argued that the middle ground does not assert that the use of any particular drug is wrong but accepts that if the use of a particular drug in particular circumstances has harmful consequences for the user and the community then measures should be taken to reduce if not eliminate that harm.

      This moral position appears more complex than the others. There is a need to balance individual and community welfare. This is likely to involve the balancing of competing values of which one may be individual freedom. It may be justified to override individual freedoms, as in the compulsory wearing of safety belts in cars. Even so, it is necessary to spell out the circumstances in which it is justifiable to restrict individual freedom of choice. For example, is the risk of self harm sufficient; are the proposed policy measures likely to cause more harm than good; is the restriction consistently applied to similar activities?

      More easily than the view that some use of drugs or addiction are wrong, the middle position accepts a measure that will clearly fall short of eliminating an undesirable activity. That other measures may also be necessary to approach that objective will not render invalid an interim step; the perfect should not be the enemy of the good.

      Harm minimisation will be more easily accepted by those who hold to this middle ground. It is desirable that people overcome addiction because to do so increases individual or community welfare. On the other hand a measure would be wrong that sought to eliminate addiction at the expense of people’s lives. The middle ground does not necessarily justify any measure labelled "harm minimisation". Some who accept the middle ground may reject a particular measures because it does more harm than good by, for example, leading others to take up drugs.

      Empirical assessment has a particularly important role in the middle ground position. Moral judgements about what will and will not promote welfare should take into account the best available information and may only be possible if more information is obtained. The working out of the this position in the drug debate is examined in part 3.
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    9. Obligations on those holding different moral positions

    There seem to be relatively few moral positions that underlie attitudes toward drugs and, moreover, many who take opposite positions on issues such as the merits of prohibition and safe injecting rooms, appear to appeal to the same moral underpinnings. The moral outriders in the debate are assertions, on the one hand, that we should accept individual liberty to undertake action likely to cause self harm and, on that other, that some drug taking is inherently wrong or that addiction is wrong. It is argued that the large middle ground is occupied by variants on the assertion that we should promote individual and community welfare.

    Given the seriousness of what is at stake, it behoves all of us to address the formulation of each of our moral positions and to ask ourselves how we derive it from higher moral principles. It would move the debate forward if, for example, those who affirm that some drug use is wrong, articulated a morally defensible line between permissible and impermissible drug use. It would be helpful also to examine the relationship in Christian morality between different responses to drug use and the ideals of Christian conduct, such as keeping our bodies a temple undefiled and loving one’s neighbour. Equally, those who want to promote individual and community welfare should examine the content of that general obligation and the balance between individual and community welfare.

    It is also evident that many empirical relationships are relevant, not least to defining the circumstances in which drug use is harmful. Because the circumstances of wrong actions are defined by reference to factual phenomena one is obliged to seek factual information to assist in tasks such as defining when an act is wrong and choosing measures on the grounds of efficacy. What, for example, can we learn from medical science and history about responses to addictive substances and the effect of alternative policy measures?

    It should not be enough for the followers of different moral positions to hurl accusations at each other from entrenched positions. At stake is a community wide response to the pressing social problem of drug abuse. All parties should at least make an honest attempt to seek common ground on moral positions and what that implies for measures that should be adopted.

    The response of the Catholic Church to safe injecting rooms illustrates how considerations that lead to moral disapproval may be different from the considerations determining an institutional response. In spite of the Vatican apparently regarding safe injecting rooms as promoting immoral acts and, for that reason, ruling out direct church involvement, the church has not opposed governments establishing such facilities. A church spokesman for the Sydney Archdiocese, Father Lucas, has stated of enabling legislation that: "The church is not campaigning against this legislation; it is not campaigning against the government. That's a matter of government decision" (SBS, Insight 11/11/99).

    The following section looks at implications of the obligation to promote individual and community welfare – the widely shared moral position that occupies the centre ground. On their face, the assessments and judgements involved in the formulation of those measures will be largely empirical but underlying those judgements are important moral issues.
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  5. Morality and assessment of measures to combat drug abuse
  6. It is evident from the discussion that many factual considerations are relevant are relevant to the formulation of moral positions on drugs. Because the circumstances of wrongful actions are defined by reference to factual phenomena one can and indeed, we would suggest, are obliged to seek factual information in order to ascertain the boundaries of wrongfulness. What, for example, does medical and other knowledge tell us about addiction as a medical or psychological condition and what is the history of moral attitudes to addictive substances?

    To promote individual and community welfare is widely seen as the basis for regarding drug use as undesirable and thus for taking measures to reduce it. This moral position occupies the middle ground of the those mentioned at the beginning of part 2. It can be accepted by people who base it on a humanist or religious ethic, and by those holding divergent views on the appropriate measures to promote it. It does, however, require assessment and judgement about the consequences of action. The discussion about means to achieve agreed ends is the stuff of most of the current debate, marked as it is by opposing assertions of effectiveness. To give just one example, the opponents of supervised injecting rooms are often heard to say that such rooms will rarely be used by addicted users; their addiction will compel them to use here and now. Empirically testable propositions like this occupy a crucial role in the drug debate.

    Given the theological underpinning of some of the moral positions it is as well to point out that there is even biblical authority for resolving uncertainty by looking to evidence: Jesus taught that a true prophet would be recognised by the fruit that he bears. In terms of the standards of proof of the day Jesus’ ability to heal was seen as a proof that he was who he said he was.
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    1. The rules of moral debate
    2. It would help if those involved in assessing efficacy were to spell out the moral position for which their assessment is relevant. Morality is also relevant to the conduct of the debate. If the determination of whether a measure will promote a morally desirable end depends on a judgement of the efficacy of that measure, there is a moral obligation to carry out an investigation of its efficacy and to do so honestly and expertly. Let me call these the rules of moral debate.

      If this is a correct analysis, the existence of those rules has major implications for those of us engaged in the debate. However idealistic those rules may seem, it behoves us to address substantive issues rather than denigrate opponents, and to avoid allegations we know are untrue or which, on reasonable examination, we could ascertain are untrue. This obligation even extends to divulging relevant information that tends to favour our opponents. Similarly, an obligation to investigate should mean that, as far as possible, everyone should make an honest attempt to become informed before entering the debate.
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    3. Politicisation of the investigation of efficacy
    4. Anyone familiar with the drug debate will the struck by the politicisation of information. Rather than being something that is exposed and analysed it is a resource denied to the enemy or from which to manufacture bullets. This atmosphere affects research findings and related information bearing upon efficacy. Research that might support the other side may not be undertaken and if information does emerge that is seen to supports the opposition its worth will be discounted4.

      That information is so politicised is at least a recognition of its importance. Proof that a measure will have an effect that promotes a particular objective will be persuasive. Uncertainty, however, abounds in judging such effects and at best we are dealing with probabilities. In a scientific sense there can never be proof, even where research results are consistently replicated. There always remains the possibility that a future test will produce a different result that disproves what was thought to be an empirical truth. This philosophical limitation of the scientific method aside, the nature and range of social, economic and medical issues associated with drug use means that it is hard to secure that rigorous, albeit qualified certainty. The obstacles in the way of getting more convincing evidence include resources (research is costly and expertise limited), ethical restrictions on trials involving control groups, and the difficulty of designing a test for an hypothesis. How, for example, would it be possible to measure whether establishment of medically supervised injecting rooms would lead to people starting to use drugs? A principle that applies with particular strength in social science in areas like drug use is that one cannot measure aspects of a social "system" without changing the system one is trying to measure.
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      1. Supervised medical maintenance of heroin
      2. The supervised medical provision of maintenance doses of heroin to addicted users illustrates the moral and practical issues that arise when considering measures to promote individual and community welfare. The proposal is important since heroin is widely regarded as the most dangerous of the illicit drugs. Proponents would need to identify a set of expected outcomes that might include major reduction in overdose deaths; reduced morbidity from sources such as brain damage arising from non-fatal overdoses and infection from street drugs and unhygienic injecting practices; reduction in crime to finance heroin purchase; less use by those attracted into treatment; and improved social integration.

        Outcomes that may reduce welfare include the likelihood that availability of prescribed heroin might encourage more people to take up the drug and fewer existing users give it up. Other questions that need to be considered include: what alternative strategies might promise similar success; and what is the probability that the positive outcomes will be achieved? In short there would need to be a stock take of expected benefits balanced against the expected negative outcomes.

        Altogether this describes a process used in the formulation and assessment of a proposed new measure in any area of policy. The outcome of the process could be the rejection of the proposal on grounds that it would be unlikely to increase welfare, or acceptance on the grounds that it would be likely to do so. This would be seen as legitimate by protagonists and opponents of the measure who both share the same moral objective of promoting individual and community welfare. It would not be legitimate for those opposed in principle to the measure to use the same arguments of efficacy against the measure because their own moral position could never accept the measure. The following are some examples of this sort of illegitimate reasoning.
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      3. In principle opposition to heroin maintenance
      4. Someone who regarded heroin use as inherently wrong could legitimately reject heroin maintenance outright because it involves the provision of heroin without necessarily aiming at abstinence. This would be in-principle opposition. A person who holds these views cannot, without declaring them, legitimately criticise the proposal because of its low probability of success since, for such a person, it could never be a success. In principle opposition needs to be stated rather than camouflaged if the debate is to focus on the nub of differences between disputants, namely their different moral positions. Thus Mr Paul Brazier of the Australian Catholic Advocacy Centre honestly articulated such a difference when, after apparently conceding that supervised injecting rooms "might save lives", he adds that: "The Church’s moral stance can only be understood in light of its supernatural nature and its concern not only with saving people’s lives but saving their immortal souls " (Courier Mail, 1/11/99, p. 15). A framework for the discussion of differences of this nature is suggested in section 2.5.

        Unfortunately this clarity is fairly uncommon in the drug debate. Disguised in-principle objection often takes the form of arguing against a proposal on the ground that there is no proof or insufficient evidence that a projected benefit will occur. Because proof is so difficult to obtain, an insistence on proof will almost certainly amount to rejection of the proposal. It is, of course, quite legitimate to demand a reasonable degree of confidence before introducing a measure that may cause harm. This situation is familiar to those considering proposed trials of new pharmaceuticals. It arose during 1999 in calls for approval for general release, without the customary thorough testing, of the drug naltrexone for addiction therapy.
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      5. Objections to trialing
      6. Objecting to trialing a proposed measure often disguises in-principle opposition. This often takes the form of unfounded criticism of aspects of the trial’s design. This was evident in opposition to the trial of heroin maintenance in the Australian Capital Territory which was designed with scrupulous care and consultation. The initial small-scale pilot phase involving just 40 users was one example of its cautious design. The strong suspicion remains that much of the opposition based on alleged design faults was motivated by concern that the trial would within its own terms of reference produce positive results. This suspicion is strengthened in the case of groups who, having opposed the heroin trial, now oppose medically supervised injecting rooms principally on the practical ground that the drugs that would be used in them would be obtained illegally – a situation that heroin maintenance would have avoided.

        Again we must emphasise that it was not illegitimate for those opposed in principle to heroin maintenance to oppose it on that basis. The rules of moral debate would be infringed only when that opposition was camouflaged by appearing to oppose the trial on its own merits.
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      7. The unfair burden: want of proof as an invalid criticism
      8. Another feature of the drug debate is insistence on unachievable levels of benefit and standards of proof, especially where a new measure is seen to run counter to existing policy. This was illustrated in consideration of the results of the trial of heroin maintenance in Switzerland between 1995 and 1998. The results of the Swiss trial were critically reviewed by a qualified independent panel arranged by the World Health Organisation. The external review confirmed that over the course of the trial there were substantial improvements in health and social functioning of participants (other treatments had not produced such improvements) and large reductions in criminal behaviour and illicit drug use. The panel concluded that "The overall Swiss studies and their various sub-components have shown that it is medically feasible to prescribe intravenous heroin as a maintenance drug, at least under the conditions that prevailed during the studies." The panel added, though, that because the trial’s design involved the provision of high quality ancillary services, "The Swiss studies were not able to examine whether improvements in health status or social functioning in the individuals treated was causally related to heroin prescription per se or a result of the impact of the overall treatment programme." This was clearly a defect in the design brought about by practical difficulties in the way of arranging control groups. Because only "small numbers" chose other treatments "meaningful within group comparisons (for the morphine and methadone arms) or between group comparisons were not possible." In these circumstances the panel stated that "Research and evaluation into the quality of different opioid substitution treatments should continue to be explored to ensure there is evidence based treatments."

        In normal circumstances the demonstration of favourable outcomes of an experiment involving a new element (in this case heroin maintenance) would suggest that the new element was responsible rather than another element that was also present, namely high quality ancillary services. This alone would be expected to warrant further experimentation to confirm the likelihood that it was the new element that was responsible for the improvement. Instead, critics interpreted the evaluation as confirming doubts about the value of heroin maintenance. Some focused on the lack of scientific proof and ignored the fact that the evaluation did confirm that the combination of heroin maintenance and better support worked. Others seemed to suggest that whatever were the uncertain benefits of heroin maintenance, those benefits did not outweigh the dangers of introducing the treatment. The Commonwealth Government concluded that: "If a trial were to be held in Australia it would send exactly the wrong message to the community, and would work against our education efforts. In light of the new doubts raised through the WHO, a heroin trial remains a risky proposition that is unacceptable to the Federal Government" (PM’s media release 7/5/99).

        These responses seem to demand scientific proof of efficacy before heroin maintenance should be further trialed. But such trials are necessary to collect further evidence about whether it would work. In the light of such evidence a decision can be made about whether to introduce the policy. For all the expressions of legitimate scientific caution contained in the WHO evaluation, the evidence of benefits from heroin maintenance was substantially strengthened by the results of the Swiss trial.

        The Federal Government’s response added the related objection that the benefits shown in the Swiss trial did not outweigh its negative consequences. This argument demands unequal standards of proof or levels of benefit; insistence on scientific proof that a measure (heroin maintenance) will have greater benefits than any alternative measure but no evidence is required to substantiate the assertion that the measure would send "the wrong message" and "work against our education efforts". Many of the arguments used against the heroin trial were of this kind and appear to arise from in-principle opposition to heroin maintenance.
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      9. "Sending the wrong message"
      10. Arguments of disadvantage to counter arguments of benefit can, of course, be valid, telling grounds for rejecting a measure. The oft-heard objection that a measure should be rejected because it "sends the wrong message" is often used by those for whom proof of efficacy could never overcome moral objections. Even so, message arguments should be taken seriously. "Sending the wrong message" is a vague concept but it is likely to mean that a measure would encourage drug use. The likelihood of adverse effects should be an important factor in determining the expected effects of a measure on welfare. Thus, if analysis showed that the disadvantages were minor or very unlikely to occur, they would have little role in deciding whether to adopt a new measure.

        Whether a measure would encourage drug use is an empirical question that can be tested particularly where the prime concern is to dissuade new users. It is possible to design surveys to show whether a particular factor affects drug up take. Such research could supplement already extensive research on the level of up-take (which in Australia shows both rising use and progressively younger first use) and what motivates people to take up drug use.

        Such research may show that the fear that a measure such as heroin maintenance would not lead to greater drug use. If it showed that the measure would lead to greater uptake of drugs, it would be a matter of valid concern for all protagonists in the drug debate.
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      11. Dilemmas: protection of the innocent
      12. Here we would seem to be faced by the dilemma that Dostoevsky’s Ivan Karamazov put; supposing we had the opportunity to build a perfect world, would we be prepared to do so if "faced inevitably and inescapably with torturing just one tiny baby"? This dilemma of the innocent is not far below the surface in the drug debate; it is the product and stuff of so much of the fear that surrounds the subject.

        Like so much else, this feared dilemma should be analysed in the context of the drug problem. Again let us take heroin maintenance as the example. Evidence shows that it is likely to save lives. The evil that we assume that the innocent will suffer is becoming addicted to drugs. In other words in the worst possible case strong evidence that lives of addicted users will be saved by the measure must be balanced against the (assumed) inevitability that some non-drug users will take up drugs. Assessment of the cost and benefit from a moral point of view will depend on the moral values that we bring to bear. Those who hold the moral objective of increasing individual and community welfare might argue that the strong likelihood of saving lives outweighs the (assumed) certainty that some will take up drugs. Evidence shows that most people who take up heroin do not become addicted. What is more, the evidence is that the measure that we assumed led to the user to take up the drug will nearly eliminate the risk of death.

        Describing the dilemmas of drug policy in this blunt way lays bare the moral choices and brings enlightenment to the discussion. It would, for example reveal that the dilemma of the "innocent" non-user is far from being the only one. A more realistic one lurks in what might be termed the "rock bottom" debate.
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      13. Hitting rock bottom

      An argument heard repeatedly – and affirmed with passion by many self-declared addicts who have become abstinent – is that only by making things tough enough will users be induced to overcome their addiction. On this view, coercive measures such as criminal prosecutions or compulsory treatment backed up by the threat of prosecution are essential if users are to overcome their drug problem. As with so many other assertions, these can be tested. How effective is the "rock bottom" effect compared with other measures in encouraging people to give up drugs?

      There is also the very real dilemma that while coercive measures may have the desired salutary effect on some, those measures may carry a high risk of death. Is it morally permissible to persevere with measures that may lead some to cease using drugs but which also may make it more likely that others will die or that their suffering will intensify? Some may adopt the controversial position that places existing users in some lower moral category than those who have never used.

      Innocence should not be in question in another situation. There is strong evidence, amounting in some cases to scientific proof, that measures such as dispensing sterile syringes guard users against contracting serious blood-borne diseases. These are life threatening or severely debilitating and, because they can be transmitted to, for example, sexual partners and to off-spring, may affect people who are equally as "innocent" as the child who may be prompted to take up drugs. Thus the interests of such people are at stake when a decision is taken to initiate or withhold measures that are known to reduce the likelihood of spread of those disease. This dilemma may thus exist when making decisions as controversial as whether to provide sterile syringes in prisons.
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    5. Political constraint on academic research
    6. We commenced the discussion of the role of research in the drug debate by mentioning that the politicised nature of the drug debates creates an atmosphere in which research findings can be hotly disputed for reasons unrelated to the scientific validity of the research. The public dispute about the trial heroin maintenance treatment provides examples of what occurs. Research may be flatly opposed irrespective of outcome by those who regard the notion of heroin maintenance as wrong. There may be denial that a piece of research has any validity unless it succeeds in producing scientific proof for a proposition. This poses fundamental challenges because very little research in behavioural sciences produces scientific proof of cause and effect as opposed to evidence that favours one theory or another. Evidence to the point of proof is built up by a succession of studies.

      It is difficult to document the extent that this politicised atmosphere affects what researchers may say and their priorities but it is likely that there is a substantial effect. One can draw this implication from general studies of science. "There is a considerable literature showing how science can be understood as growing out of and shaped by the organization of society..."5. Moreover there are documented cases of suppression and other influence on research work on particular subjects like pesticides.6

      Many factors associated with illicit drugs coincide to make it likely that similar things occur with illicit drug research. These include the emotions associated with fear, revulsion and compassion; deeply divided views on what should be done and different interest groups that share various of these outlooks. Interest groups include politicians of different persuasions (governments from local to federal level hold a range of views), professional associations such as law societies and associations of doctors, workers in the drugs area, the media including talk-back radio, churches, drug users, families of users, the illicit drug industry itself, police associations, foreign governments such as the United States and international agencies like the International Narcotics Control Board that hold strong views.

      Each of these interest groups may exert influence in various ways. For example, workers in drug areas have a close interest in drug strategies. They also produce or are capable of producing a lot of data relevant to the drug debate. Particular agencies may be wedded to particular intervention philosophies. Nearly all of them will be attempting to meet demands that exceed their capacities and doing so on tight budgets financed by governments and other bodies that may be known to have strong views on drug policies. In any case, because of overall concerns of their financial patron to contain costs the level of their operating grant might be reduced if new strategies like supervised injecting rooms are introduced.

      The potential influence of the illicit drug industry is enormous. In 1997 Access Economics estimated the industry to have a turnover in Australia of $7 billion which placed it between tobacco ($4.2 billion) and behind gambling ($9.6). The indications are that this is a substantial underestimate.7 A recent study by the University of Western Australia estimated annual expenditure in 1995 on marijuana alone as $5.072 billion. This represents a 33% growth since 1988.8 World wide the industry is thought to be the second largest after the arms industry. The Wood Royal Commission9 and other inquiries have documented an alarming amount of corruption in police forces and other agencies of government financed by the drug industry. Researchers and others involved in the analysis of information in the public debate are unlikely to be subject to corruption of that nature but it would be a rational choice of the illicit industry to seek to finance researchers and others that espouse views that the industry perceives to be in its interests.

      While we are unaware of any surveys of the extent of influence on researchers in the illicit drugs area, Associate Professor Martin10 of the University of Wollongong, a student of social and other influences on scientists generally, has written that:

      "As a result of conversations with numerous scientists, it is my observation that quite a number of scientists avoid doing research or making statements on sensitive issues because they are aware, at some level, of the danger of being attacked if they do."

      He adds11 that:

      "This is compatible with the findings of Wilson and Barnes (1995), who surveyed 70 senior Australian environmental scientists asking, among other things, ‘Do you believe that scientists may jeopardise their career prospects or research funding success by speaking out on environmental issues?’ More than half replied ‘yes’ and less than one in five replied ‘no,’ the rest being unsure."
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    7. An obligation to become informed

    In the context of Vatican prohibition of church involvement, Archbishop Pell has written of the merits of injecting rooms that:

    "It is a complicated and controversial question. But, put simply, the benefits are uncertain and the harm outweighs the benefit" (Herald Sun, 24/11/99, p. 19).

    These are largely empirical issues. It would be possible to develop a co-ordinated plan of research that would test them and other key empirical assumptions that underpin existing drug policies. For example, does prohibition of drugs increase or decrease their availability? Defenders of the present system argue that however bad it is now it would be much worse if more liberal approaches were taken to drug regulation. Others argue that the existing system of prohibition places drug distribution beyond the reach of effective control. At the lower and more vulnerable levels of the distribution pyramid it is placed in the hands of those who have the greatest incentive to maximise sales, namely the addicted users themselves. Given this, the argument goes, an increase in drug use and lowering in the age of up take would follow. Some of these assertions could have been tested in the course of a trial of heroin maintenance.

    This state of affairs has moral implications. Research is essential to determine what promotes the moral principle of individual and community welfare (in accordance with which drug use is undesirable). Refusal to seek out information and obstacles placed in the way of free and fearless investigation of efficacy thus sabotage the working out of that moral principle.
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  7. Morality and legal prohibition of drugs
    1. Is drug taking immoral because the law makes it illegal?
    2. Reading the letter columns of many newspapers one can be forgiven for thinking that the moral dimension of the drug problem can be briefly encapsulated by the propositions that the law prohibits drugs, it is wrong to disobey the law and therefore people should not use drugs. We do not want to get into questions of the bounds of a just law or obligation of civil disobedience and accept that, generally, there is a moral as well as a legal obligation to obey the law of our society. Even so, that something is enshrined in law is not in itself a reason for it to remain so. The legislatures of this country and the courts through the development of the common law change the existing law in thousands of ways every year. A similar position applies to obligations on Australia under international law. Treaties can be amended, suspended, terminated, ignored or parties can withdraw from them. This paper is about the moral dimensions of the drug problem, not the legal ones. On the other hand, law is relevant because it may be used as a means of giving effect to moral principles. It is for this reason relevant to enquire about the relationship between a moral injunction and any particular legal response to the drug problem.
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    3. Does morality require the legal prohibition of drugs?
    4. The most sensitive political issue of the drug debate concerns legal prohibition of drugs. There are many who oppose any measure that smacks of going soft on drugs on the ground that it opens the way to removing the blanket prohibition of drug use secured by criminal sanctions. It is all the more ironic that none of the three moral positions opposed to drug use identified at the beginning of this paper enjoin legal prohibition. The two principles most opposed - that some drug use is inherently wrong or that addiction is wrong - are unambiguous condemnations of drugs but they themselves do not have legal prohibition as part of their content. The criminal sanction of drug use is a measure introduced to promote a moral principle, not part of that principle. There are other moral principles, probably even more widely accepted in our community than those about drugs, that unambiguously condemn behaviour without it being the subject of legal prohibitions. The moral principle that we should not lie is an example. Lies are criminal offences only in very limited circumstances. In contrast, the moral principle that we should not steal is almost completely duplicated by legal condemnation.

      Why are some moral principles and not others reflected in the law? The moral principle that enjoins promotion of individual and community welfare can provide reasons for such a distinction. Prohibition like any other measure will be justified only if it promotes individual community welfare.

      It follows from this point of view that how drugs are provided for in the law is not sacrosanct. Like any other measure, drug control legislation should be used when it is an effective way of promoting welfare.

      The most that can be said is that legal prohibition is (or may be) consistent with moral principles most opposed to drug use. Even so questions of efficacy are still likely to be relevant. Would legal prohibition be consistent with the principle that drug use is inherently wrong if it were to be demonstrated that legal prohibition actually resulted in more drug use?
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      1. History of the relationship of morality to prohibition
      2. The tenuous links between drug use and prohibition are shown by history. The prohibition of the currently illicit drugs has relatively recent origins. Opium, for example, has long been used in Western medicine and, in the form of its derivative, morphine, continues to be in Australia. That opium was banned here in the first decade of this century was principally for discreditable reasons of racial prejudice against the Chinese community that used it. China had opium forced upon it by colonial powers to provide a commodity that the Chinese were prepared to pay for and thus finance the purchase of the many Chinese goods that foreign traders sought.

        From the latter part of the 19th century, British church groups led the opposition to commercialisation of addictive substances such as opium. After the United States threw the Spanish out of the Philippines they were joined in their efforts to suppress the opium trade by United States church groups. The church opposition, linked to temperance movements, had as its principal focus the iniquity of colonial governments encouraging a socially damaging activity. The focus was thus more on the broader economical and social arrangements that promoted a damaging activity than the inherent moral wrongness of the individual using drugs. The focus has now shifted to emphasise the individual wrongness of the activity. Had the 19th century approach been maintained, churches would be focusing their attention on efforts to bring to an end the global criminal drug trade – said to be the second largest after trade in arms. There are cogent analyses that conclude that this criminal activity is fostered rather than undermined by law enforcement efforts designed to suppress it. If they are correct, the case for prohibitory laws is at least greatly weakened.

        The prohibition of heroin was even more recent than opium. Its import was prohibited by the Commonwealth in 1953 acting under pressure from the United States dominated United Nations agencies, against the advice of the medical profession of the time. Drugs (including heroin and opium) continued to be supplied to a small number of registered addicts for years thereafter and as late as the 1960s doctors at a number of major hospitals in Victoria were still occasionally prescribing heroin for intractable pain. A Commonwealth Department of Health handbook for medical practitioners continues to describe heroin in the following terms: "As an analgesic heroin is safe, effective and has a wide safety margin."12 It adds that "it is perceived by many as a 'horror drug'." In the United Kingdom heroin continues to be prescribable for pain relief and addiction.
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      3. Moral condemnation and state tolerance

      In a society such as our own in which there is a plurality of moral values, the state may need to choose between values if a proposed measure is consistent with some but not others. Legislation on abortion is a classic example of such a choice.

      Speaking in the context of harm minimisation Archbishop Pell has acknowledged the Catholic Church does not expect the state to legislate against everything that the church regards as immoral:

      "Catholics acknowledge that the role of a government and government agencies is different from the role of a church; just as Catholics acknowledge that not every immoral activity should be illegal. Nevertheless, although not all immoral activities should be illegal, it does not follow that legal activities are thereby moral" (Age, 18/11/99, p. A19).

      This position could be taken by those who hold that some drug taking or addiction as inherently wrong. It is possible for the state to express disapproval of an activity in a wide range of ways. This possibility is particularly relevant in considering the relationship between legal coercion and treatment for addiction.
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    5. Criminal prohibition and treatment of the addicted
    6. The account in section 4.2.1 of the reasons for international prohibition of drugs showed that the main objective was to stop legal and illegal trafficking in the commodity for non-medical or scientific purposes. This remains the principal objective of the international conventions. The move to prohibition of use and possession for personal use has thus been an extension of the original purposes. Some social theorists such as Nils Bejerot13 of Sweden have argued that drugs users themselves should be targeted because they, unlike the dealers, are the irreplaceable element of the drug chain that encourages others to use. "We have to accept," he wrote, "the painful fact that we cannot win decisive advances unless drug abuse, the abuser and personal possession are placed in the centre of our strategy."

      Prohibition and policies built around them on the basis of theories such as those of Bejerot broke or at least radically changed the relationships that has normally existed between the addicted on the one hand and the caring professions and the rest of the community on the other. Doctors have, for example, been jailed in the United States and deregistered in Australia for prescribing treatments they judged in the best interest of their addicted patient which the criminal system has marginalised and discriminated against. The rise in the United States from the 1950s of therapeutic communities like Odyssey House organised by ex-users was a response to the medical profession’s abandonment of drug users. Prohibition legislation in the United States from 1914 "allowed the health profession to comfortably do a ‘Pontius Pilate’; washing their hands of the problem of drug addiction and hand balling it directly over to the criminal justice system."14 So-called harm minimisation measures, with their public health roles, have also served to rectify something of the marginalisation of users.

      At the very least there is a tension which many would say is irreconcilable between a punitive system and moral obligations to care. This tension is reflected in the Charter for health care workers" issued in 1995 by the Pontifical Council for Pastoral Assistance to those workers:

      "To say that drugs are illicit is not to condemn the drug-user. These persons experience their condition as ‘a heavy slavery’ from which they need to be freed. The way to recovery cannot be that of ethical culpability or repressive law, but it must be by way of rehabilitation, which, without condoning the possible fault of persons on drugs, promotes liberation from their condition and reintegration" (94).
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    7. Coerced treatment

    In the last year, governments around Australia have moved progressively from prosecuting drug offenders to measures involving treatment or counselling enforced by the threat of legal sanctions. These policies are reflected in schemes for diversion by police of first time drug offenders from the criminal justice system, drug courts and initiatives for drug treatment within prisons. The efficacy of each of these is testable. Diversion to treatment requires that treatment and support be available; the threat of criminal charges is now used to induce people to abstain and seek out available treatment.

    Drug courts and other diversion programmes thus do not alter in any fundamental way the current approach of using the threat of prosecution as an inducement for users to give up. They do, however, recognise that the criminal behaviour of many results from a drug problem. For that reason it is preferable in some cases to help them overcome that problem rather than to punish them for the offence.

    A diversionary system is a recognition that the criminal law is not of itself able to cope adequately with the social problem of drug misuse. This raises the question whether the criminal law should have any role at all and the fundamental question of whether compulsory treatment is more likely to promote individual and community welfare than other measures combined with voluntary treatment. The relative effectiveness of these different approaches, which go to the essentials of the present approach to drugs, are assessable empirically.

    Assessment is being undertaken to answer the less fundamental question of whether the new measures are more effective than the pre-existing system based on criminal prosecution. The terms and scope of this assessment may reflect underlying moral positions. For example, a moral position that regards abstinence as the criterion of success requires a different assessment from that required to satisfy those whose moral position uses individual and community welfare as the main criterion. The views of the latter are reflected in criticism that success criteria for some drug court schemes are too narrowly focussed on recidivism and abstinence rather than broader criteria of health and social integration. Apparently in New South Wales the current trial of drug courts and how it should be assessed was not subject to a review of an ethics committee.

    Coercive treatment as implemented by drug courts infringe a number of ethical principles of health care. These include the potential for a court to require a health worker to administer a treatment that she regards as inconsistent with the best interests of a patient and the power to require the health worker to breach patient confidentiality by disclosing to the court information about the patient (Wickes & Anderson, "Ethical and legal issues concerning the drug court program", APSAD Conference 1999). Such conflicts are a further reason to question whether criminal law should have any role in treatment of the drug problem.
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  8. The drug debate and other social issues
    1. Comparative moral complexity
    2. The intensity of the drug debate appears to be more a result of the emotion that surrounds drug use than because of any deep moral differences. This is not to downplay the importance of the different moral positions examined in this paper but the gaps between them are much narrower than those that arise in, say, the context of abortion or euthanasia. The big differences are about what measures should be taken to deal with the drug problem. In essence these differences are ones of cause and effect and should be able to be settled by empirical research.

      Many who urge a package of measures that includes heroin maintenance expect that, with the undermining of the black market, there would be many fewer new users. Over time, this factor and the uncoerced move to abstinence of those on the maintenance programme would lead to a shrinking of the drug problem. If this were to occur, we would expect that those who hold that drugs or addiction are inherently wrong would, like many of the rest of us, get on with the rest of life and leave to the medical and other caring professions the task of handling a problem of modest proportions. In contrast, it is impossible to imagine that the optimum outcome sought by any of the protagonists on the abortion issue would ever be regarded as tolerable by others.
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    3. Misleading analogies

    In a speech to the Institute of Public Affairs Archbishop Pell, in defending the Catholic Church’s decision not to be involved in the running of drug injecting rooms, referred to it as an example of harm minimisation as indeed do its proponents. "Harm minimisation" is, of course, the label given to a drug policy that has as its focus the minimisation of the harm that drug taking may cause to people. Because the policy is seen to envisage the possibility of "safe use" it is criticised by many. The Archbishop grouped under the umbrella of "harm minimisation" activities as different as drug injecting rooms, the distribution of condoms, provision of information on safer forms of homosexual activity, facilitation of abortions and sale of low alcohol beer or low-strength cigarettes in school canteens. He argued that the church should not co-operate with the state in any of these programs.

    Placing a measure of which one does not approve in company with others which are more widely regarded as undesirable is a recognised rhetorical device to garner support for one’s argument. This may not have been the Archbishop’s intention but his argument removed the focus from the merits or otherwise of the proposal of supervised injecting rooms to the controversial drug policy of "harm minimisation" which was then likened to other controversial matters.

    Discussion about a slogan, which is what "harm minimisation" has become, is very different from arguing the merits of particular measures that might be grouped under that slogan. A characteristic of a slogan is that, for those who approve of it, it will include everything with which they agree, while for those who disagree with it, it will represent everything with which they disagree. If there is to be a discussion about harm minimisation it should not be treated as a slogan. Attention should concentrate on each of the many programmes and activities that aim to minimise harm. The central focus of the caring professions and of the social welfare system could be described as harm minimisation. Phrased in positive terms their aim is to help people to live healthier and more rewarding lives.

    The rhetorical power of labels for good or ill is illustrated by comparing Archbishop Pell’s criticism of "harm minimisation" and, through it, supervised injection rooms with the support of the Conference of Swiss Bishops for the Swiss Government’s harm minimisation policies (including injecting rooms and heroin prescription).

    "The bishops, concerned about the fate of addicts and their families, just as they are about the serious consequences of alcoholism, the abuse of prescription drugs and tobacco, recalled that the Christian ethic urges and invites the social reintegration of marginalised people, to give them back a life in the community and to avoid at all cost their isolation" (media release, 14 October 1997).

    Significantly, in European countries such as Switzerland such policies are not described as harm minimisation but as survival assistance. All of us are beholden to focus on the substance of things and not the form.
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  9. Conclusion

In the debate about drugs people are not listening to each other. Those who appeal to the Bible as justification for condemning a measure are dismissed by others. They are entitled, their critics may concede, to personal religious beliefs but have no right to foist them on others and certainly not in the context of a health and social issue such as what we should do for addicted drug users.

There is no hope for a meeting of minds if values of basic importance to one participant are dismissed by the other as irrelevant. The impatient atheist who is anxious to fix a practical problem must also recognise that he too is engaged in a debate about morals derived as much from moral principles as the person who appeals to the Bible. Indeed, only by articulation of the proponents’ moral principles is it possible to discern a framework within which meaningful dialogue to solve a community problem might take place.

Whether derived from religious or secular values, the moral principles involved can probably be reduced to four: a libertarian one that everyone should be entitled to use drugs even when it causes harm to themselves; the two principles that some drug use is inherently wrong or that addiction is wrong; and, finally, the position that does not view drug use as inherently wrong but regards it as undesirable because it undermines individual and community welfare.

All of us need to be put to the test about the nature and implications of our moral positions on a subject like drugs. Moral positions profoundly affect the collective response of our community to such a large social problem. Each of those positions is amenable to examination of what it implies. If, for example, someone says that use of a drug is inherently wrong does this hold good if the person, being addicted, continues to take the drug as medication to function normally and to avoid the distress of withdrawal? Further, we need to spell out the reasons for our moral condemnation of some drugs like marijuana and heroin but not others like coffee, alcohol, and nicotine.

It is likely that most regard drug as undesirable because if works against individual and community welfare. Adherents to this principle may have different views on the acceptability of measures such as supervised injecting rooms. Whether a measure is consistent with the position depends on whether it increases individual and community welfare. Whether this is so in large measure can be empirically assessed.

It follows that many who may not recognise it are involved in an important part of a moral debate. They include researchers and practitioners in disciplines as diverse as health, sociology, law and economics, indeed everyone gathering, analysing or arguing from evidence about what we should or should not do about drugs.

Morality also plays a part in requiring observance of values like honesty, transparency and rationality in the conduct of the debate. Honesty and transparency require that those whose moral position gives them legitimate grounds to oppose a proposed measure because the measure could never satisfy their moral criteria should not bolster their case by distorting arguments about efficacy. Many (though not all) objections to trialing new measures like supervised injection rooms on the grounds that the trial will not produce beneficial results are attempts to do this. So too is requiring unrealistically high standards of proof of benefit from measures to camouflage moral opposition, while requiring no scientific testing of the efficacy of measures that accords with their own moral principles. The results of the Swiss trial of heroin maintenance were dismissed on illegitimate grounds like these. While it did not prove that heroin maintenance was beneficial it added substantially to the evidence in support of that conclusion.

It is perfectly feasible to gather evidence methodically about empirical assumptions that have dominant influence on drug policy: assumptions such as whether measures like heroin maintenance would encourage people to take up drug use and whether complete prohibition of some drugs have served to reduce or increase their availability. In the charged atmosphere of the drugs debate research of this nature may be regarded as politically sensitive.

It is the intensity of emotion surrounding drugs – the fear, the shame and the anguish – that make the drug issue so intractable. Compared to other social issues like abortion the differences in moral positions of the protagonists are fairly narrow. The major differences are empirical ones and these are resolvable. In the meantime the failure of protagonists to deal with and state their moral positions confuses the debate and complicates decision making. The scale of human misery and damage to the fabric of our society caused by illicit drugs demands that we acknowledge the major part that moral values play in the debate.
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Footnotes

  1. .The authors acknowledge with gratitude the valuable comments of Rev’d Gray Birch.

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  1. .Australia, Department of Human Services and Health, Handbook for medical practitioners and other health care workers on alcohol and other drug problems (Australian Government Publishing Service, Canberra, 1994) p. 65.

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  1. .Hugh Mackay, Turning point: Australian choosing their future (Macmillan, Sydney, 1999) p. 34.

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  1. .See, for example, discussion of public debate in the related area of measures to combat crime in Mackay (1999) fn , pp. 27-28.

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  1. .Brian Martin, "Suppression of dissent in science" in Research in Social Problems and Public Policy, volume 7, edited by William R. Freudenburg and Ted I. K. Youn (Stamford, CT: JAI Press, 1999), pp. 105-135; http://www.uow.edu.au/arts/sts/bmartin/pubs/99rsppp.html.

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  1. .Ibid. & Brian Martin, "Suppressing research data: methods, context, accountability, and responses" in Accountability in research, vol. 6, 1999, pp. 333-72 & http://www.uow.edu.au/arts/sts/bmartin/pubs/99air/

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  1. ."Illegal drugs" in Access Economics monitor, October 1997, pp. 14-18

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  1. .Clements & Daryl, The economics of marijuana production (Department of Economics, Uni of Western Australia, 1999) http://www.ecel.uwa.edu.au/econs/erc/Mari/Mari.PDF.

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  1. .Royal Commission into the NSW Police Service: final report (Government of NSW, May 1997).

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  1. .See, though, the preliminary study in David Dingelstad, Richard Gosden, Brian Martin and Nickolas Vakas, "The social construction of drug debates" in Social Science and Medicine, vol. 43, No. 12, 1996, pp. 1,829-38; http://www.uow.edu.au/arts/sts/bmartin/pubs/96ssm.html. This considers marijuana, drugs in sport, neuroleptics and analgesics.

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  1. .Martin (1999), fn .

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  1. .Handbook on alcohol and other drug problems (1994) fn , p. 43.

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  1. .Nils Berjerot, The Swedish addiction epidemic in global perspective (speech given in France, the Soviet Union and USA, Stockholm, Carnegie Institute, 1988) p. 8 quoted in Tim Boekhout van Solinge, The Swedish drug control system: an in-depth review and analysis (Uitgeverij Jan Mets, CEDRO, Amsterdam, 1997) p. 86.

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  1. Joe Lamberti, "Therapeutic communities" in Heroin crisis (Bookman Press Ltd, Melbourne, 1999) pp. 163-69 at p. 165.
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