John Stuart Mill's Harm Principle Applied to Decriminalization of Marijuana: Can it be Reconciled?

Ruth Wilkinson in her recent article used John Stuart Mill’s ideas in discussing ownership of genetic information. She writes: ‘John Stuart Mill asserted that the only reason for restraining the actions of individuals should be to avoid harming others. When he was formulating this ‘‘harm principle,’’ Mill left two issues largely unaddressed: the nature of harm and the identity of the others whom our actions could be restrained to protect…. Mill intended his harm principle to ‘‘govern absolutely the dealings of society with the individual.’’ Although I make no comment on this intention, I think we can accept that the harm principle could be considered an appropriate method to deal with individual decisionmaking. On this basis, a decision would be inappropriate if another person would be harmed as a result of the choice made.’[1]

So basically, what Mill means is that to promulgate law that applies to the individual to prohibit him from carrying out a particular activity, policy-makers must consider the extent and nature of harm done to ‘stakeholders’ so to speak – persons who could be so affected from prohibitions on certain individual conduct, and if those individuals are so harmed by the application of that restrictive policy, then the carrying out of that law cannot be justified. The question is: by criminalizing recreational use of marijuana and therapeutic use of marijuana, who are we hurting: the individual, the society, family structures, all of them, or none of them.

What is intriguing is that Mill’s principle can be applied effectively to advocate two controversial ideas on the use of marijuana in society. In the following paragraphs, I will discuss the application of the harm principle to the benefits of the ‘decriminalization’ of marijuana possession for personal use, and the use of medical marijuana.

Before that, I have to express that I personally do not really like to use the term ‘decriminalizing’ in relation to marijuana in my blog entries because the general public does not know what ‘decriminalizing’ means and hence tend to immediately have a predisposition towards negative ideas and generally negative judgments on my arguments. People tend to automatically think that proponents of decriminalization of marijuana use are free-spirited alcohol-swigging, hip-shaking liberals when increasingly today regardless of which way their hips shake tend to be rational, educated, staid-looking health professionals who know the consequences of incarceration policies and who can foresee the abyss which is bound to greet us with open arms if the status quo is maintained.

So in addressing the furore on marijuana issues, I’m pointing you to a shocking true fact about incarceration for possession of marijuana: Our kids go into prison for possession of marijuana, and come out with a PhD in heroin addiction. And heroin, an extremely addictive substance, is taken intravenously, adding to the enormous HIV epidemic we have here in Malaysia. (We have approximately 80,000 HIV-positive people in Malaysia.) And even if they don’t graduate with a metaphorical doctorate in heroin, they can’t get jobs because of their registration as a drug offender and hence turn to crime. When they turn to crime and get caught, they get incarcerated. It’s a vicious cycle, and is a cycle that destroys lives. And if you’re conservative/in government/don’t care about the so-called ‘scum’ of society, fine. But are you willing to fork out your tax dollars on maintaining these individuals in prison? Or would you rather fork out your tax dollars on providing them with reformation and access to a better future, reducing automatically the chances of them going into crime? We have to look past the marijuana user to their families and those kids they’ve left behind without food because they’ve gone to jail as a result of smoking a bit of weed in their car after a stressful day at work, on their own, not harming anyone at all except (maybe) himself.

And I’m saying this being a person who does not smoke marijuana. I am not a tree-hugging hip-shaking dreadlock-headed stoner. I am a person who is looking at the social costs and who is weighing up what makes sense and what doesn’t from an evidence-based standpoint. Last week I spoke to two prominent Malaysian psychiatrists who work first hand with drug offenders in prison. They were of the opinion that first and foremost, the most immediate concern and most logical step that the law has to take is to enable those who have been incarcerated for possession to not be registered as drug offenders (to facilitate their reintegration into society), and if not, then to offer treatment as a option post-conviction, in place of incarceration.

Applying Mill’s harm principle to this is elementary. Mill says: the only reason for restraining the actions of individuals should be to avoid harming others.[2] By prohibiting the possession of non-traffickable quantities of marijuana, the marijuana user’s wife is harmed, his kids are harmed, members of society are harmed due to his propensity towards petty crime, and that’s just the start of it. Putting aside Mill’s principle for a while, we’ve got to remember that that person who had a joint in his pocket or took a quick swig after work is harmed too. Irreparably and irreversibly harmed by the criminal justice system.

On medical marijuana, Ronald Swartz points out that ‘marijuana’s positive therapeutic effects have been documented by the US Institute of Medicine, the American College of Physicians, and other sources in relation to psychosis, bipolar disorder, anxiety, pain, anorexia, nausea, and muscle spasticity, including randomized, placebo-controlled, crossover trials.’[3] Then there are also situations where the patient is allergic to synthetic pharmaceuticals and so marijuana is their only choice as in the case of Raich involving a woman suffering from an inoperable brain tumour and numerous other conditions. (I wrote about this in more detail in my July 15, 2010 entry on medical marijuana.)

The argument here is sort of topsy-turvy from the prior argument in that medical marijuana harms no one else. So the question is: Why restrain it?

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[1] Ruth Wilkinson, ‘When Is My Genetic Information Your Business? Biological, Emotional and Financial Claims to Knowledge’ (2010) 19 Cambridge Quarterly Healthcare Ethics 110 at 110

[2] Ibid

[3] Ronald Swartz, ‘Medical Marijuana Users in Substance Abuse Treatment’ (2010) 7 Harm Reduction Journal 3 at 3-4